Opinion
Nos. 05-04-01337-CR, 05-04-01338-CR, 05-04-01339-CR, 05-04-01340-CR
Opinion Filed January 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F03-43762, F03-43763, F03-43764, and F03-43765. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Rodney B. Singleton was convicted of three counts of aggravated robbery and one count of aggravated assault. The jury assessed his punishment at thirty years' confinement for each of the three aggravated robbery convictions and twenty years' confinement for the aggravated assault conviction. In two points of error, Singleton complains that the trial court erred by (1) allowing the State to reopen its case after both sides had closed, and (2) overruling Singleton's objection to one question, posed during the punishment phase, that purportedly called for speculation by the witness. The facts are known to the parties, and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment. Singleton's first point of error complains of the trial court's reopening the evidence for the State after both parties had closed, but before argument of the cause. The code of criminal procedure provides that:
The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). The court of criminal appeals has directed that, in the context of this statute, "a `due administration of justice' means a judge should reopen the case if the evidence would materially change the case in the proponent's favor." Peek v. State, 106 S.W.3d 72, 79 (Tex.Crim.App. 2003). In Singleton's case, the State moved to reopen the evidence based on the following question posed by counsel for Singleton's co-defendant to the investigating detective:
Okay. Now Detective, you know this. I'm sure the jury doesn't know. If you have an interview or a statement that a defendant gives you and they say they're guilty of the offense, that's admissible, right? The State can offer that. But if they say they're not guilty, that's not admissible?Singleton objected that the question called for a legal conclusion and that it violated "the motion [in limine]." The objection was sustained. Shortly thereafter, all parties rested, and the jury was excused for the day. The next morning, before closing arguments, the State sought permission to reopen. The State argued that the above-quoted question included a misstatement of the law. It also argued that the misstatement encouraged the jury to conclude erroneously that the statements of the defendants — which had not been introduced — must be declarations of innocence. The State argued that only admission of the defendants' statements could correct this misperception. Singleton responded that the State had produced overwhelming evidence of guilt, such that the statements could not materially affect the case in the State's favor. The trial court granted the State's request to reopen the evidence, held a hearing on the admissibility of the statements, and admitted them. On appeal the parties echo their trial-court arguments. The essential issue is whether the trial court could have concluded that reopening the evidence for the admission of the defendants' statements "would materially change the case in the [State's] favor." See Peek, 106 S.W.3d at 79. Singleton points to all the evidence introduced by the State — especially the victims' testimony — that comported with his statement, and he argues the introduction of his statement could not materially change the case in the State's favor. We disagree. Even if the evidence the State did offer supported a guilty verdict, the trial judge could reasonably have been concerned with the jurors' impression of what the State did not offer. In other words, even if all the affirmative evidence before the jurors could lead them to a guilty verdict, the impression that the State was hiding something from them could lead those jurors to a different conclusion. If so, then admitting the defendants' statements could well materially change the case in the State's favor. We conclude the trial court did not abuse its discretion in allowing the State to reopen to offer the statements. We overrule Singleton's first point of error. In his second point of error, Singleton complains that during the punishment phase of the trial, Singleton's uncle — who also happened to be a lieutenant in the Shreveport Police Department was permitted to testify over objection as to the effects of violent crime on its victims. Singleton argues that the question called for impermissible speculation on the part of the witness. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). During the punishment phase, the trial court may admit evidence on any matter it deems relevant to sentencing. Jaubert v. State, 74 S.W.3d 1, 17 (Tex.Crim.App. 2002); see also Tex. Code Crim. Proc. art. 37.07, § 3(a) (Vernon Supp. 2005). In this instance, the context of the challenged question leads us to agree with the trial court rather than Singleton. The witness, Singleton's uncle, testified that he was a twenty-one year veteran of the police force, he had supervised the Homicide-Robbery Unit for two years, and he was familiar with violent robberies. The facts of this case were related to the witness, and the following exchange took place:
Q. . . . . that's a violent offense, wouldn't you agree?
A. It was potential, I would agree with that.
Q. Well, you don't think putting a gun — a loaded gun to someone's head is violent?
A. Well, I guess for lack of interpretation there's a potential for violence.
Q. So just the act — have you dealt with victims who have been victims of
A. Yes, ma'am, I sure have.
Q. — violent aggravated robberies?
A. Yes, ma'am.
Q. They've had guns put up to their head? How does-how does that impact — you probably deal with the victims as much as you deal with the defendant. What do they live with after that offense?
A. I've been victim of that.
Q. Okay.
A. Yes, ma'am. I — I really understand. I mean, it's a horrifying situation. I understand.
Q. It's traumatic, right?
A. Right.
Q. The effects last a long time on the victims; is that right?
[Defense Counsel: Well, Judge, it calls for speculation, Judge. The Court: Overruled.]
Q. [By prosecutor] Okay. Is that right?
A. It could. (Emphasis added.)In context, the trial court's ruling is clearly correct. Within the short period of this examination, the State elicited evidence that the witness was an experienced police officer who had not only dealt with victims of aggravated robberies, but had also been a victim himself. The witness testified without objection — that being a victim of this kind of crime was horrifying and traumatic. To testify that the effects of such a trauma might "last a long time" was certainly within the realm of the professional and personal experience the witness had already described. The question did not call for speculation; the trial court properly overruled Singleton's objection. We overrule Singleton's second point of error. We affirm the judgment of the trial court in each of these cases.
The aggravated robbery convictions are numbered:
F03-43762-WI in the trial court and 05-04-01337-CR in this Court;
F03-43764-WI in the trial court and 05-04-01339-CR in this Court; and
F03-43765-WI in the trial court and 05-04-01340-CR in this Court.
The aggravated assault conviction is numbered F03-43763-WI in the trial court and 05-04-01338-CR in this Court.
The parties do not contest that the request to reopen in this case occurred before argument.