Opinion
No. 05-05-01210-CR
Opinion issued August 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-73318-T. Reversed and Remanded.
Before Justices MORRIS, O'NEILL, and MAZZANT.
OPINION
Bryan Keith Watkins appeals his conviction for burglary of a habitation. In three issues, he claims the trial court abused its discretion in admitting extraneous offense evidence and he received ineffective assistance of counsel at trial. We reverse appellant's conviction and remand the case for a new trial.
Background
Don Isett testified that on August 11, 2004, he went to his house on Forrest Lane to feed his cats. Isett no longer lived in the house and was using it only for storage. When he returned on the following day, he discovered the house had been ransacked. Drawers and cabinets were left open and Isett's personal belongings were strewn across the floor. A music keyboard and portable stereo were missing. After calling the police, Isett cleaned up and left. When Isett returned to his home the following day, he found it had been burglarized again. He noticed the kitchen doorknob had been "knocked off" with a hammer or some other blunt object. The kitchen and spare bedroom were ransacked. A wine bottle that Isett used for storing pennies had been smashed and the pennies were missing. Isett called the police, who lifted fingerprints from several areas of the house. That night, Isett decided to stay at the house in order to thwart another burglary. After setting up a security camera and connecting it to a television monitor, Isett sat up all night and waited but no one came. In the morning, his wife picked him up and he went home for a few hours. When he returned later that day, he found that the security camera and his lawn mower had been stolen. In addition to the wine bottle fragments, the Dallas Police Department crime scene technicians responsible for scouring the premises lifted fingerprints from a metal case and tin. The fingerprints lifted from these objects matched appellant's. On September 8, 2004, Officer T. Haney of the Dallas Police Department arrested appellant for an outstanding warrant for burglary of a habitation. Tucked under appellant's arm at the time of his arrest was a newspaper concealing a folded green duffle bag. Appellant was also carrying a screwdriver and a pair of rubber gloves. Appellant did not testify at trial or call any witnesses in his defense. Defense counsel tried to raise reasonable doubt by suggesting appellant's fingerprints were found in Isett's home because appellant had some lawful reason for being there. During cross-examination, counsel asked Isett whether other people had ever been in the house for purposes of maintenance or repairs. He said he did all of the repairs himself and the house had been remodeled only once. Defense counsel also asked how many people had touched the tin. Isett said only he and his mother had handled it. Counsel further questioned whether Isett had ever entertained or had guests in the house, and he responded such activity had not occurred in over ten years. Defense counsel also tried to raise reasonable doubt by questioning the reliability of the State's fingerprint evidence. Counsel cross-examined the State's fingerprint technicians about the difficulty in lifting a print and how dust, smudging, temperature, and humidity can affect the collection of an accurate print. Counsel also cross-examined Patrick Genovese, a detective employed by the Dallas Police Department whose duties include processing latent fingerprints, about mistakes in fingerprint identification procedures and the possibility that someone else could have the same fingerprint as appellant. Following a rule 404(b) hearing held outside of the jury's presence, the trial court allowed the State to introduce rebuttal evidence of five other persons whose apartments had been burglarized. The State also introduced testimony establishing that latent fingerprints recovered from four of the five burglarized apartments matched appellant's fingerprints. The jury convicted appellant of burglary of a habitation. During the punishment phase, the State introduced evidence of prior felony convictions for assault and forgery of a check. The jury found both enhancement paragraphs to be true and sentenced appellant to forty years in prison.Discussion
In his first issue, appellant claims the trial court erred by admitting evidence of five extraneous offenses during the guilt-innocence phase of the trial. In his second issue, he argues the trial court wrongly determined that the probative value of admitting the extraneous offenses outweighed the unfair prejudice. In his third issue, appellant claims he received ineffective assistance of counsel at trial because defense counsel failed to continue to object to the admission of the extraneous offenses or ask for a running objection. Defense Counsel's Cross-Examination of State's Witnesses Because the State's case against him rested almost entirely on the fact that his fingerprints were found inside Isett's home, appellant's only trial strategy was to challenge the sufficiency of the fingerprint evidence in order to show his fingerprints were found inside Isett's home either because appellant had some lawful reason for being there or he was the victim of misidentification. During cross-examination, defense counsel questioned Isett about how often he had friends, maintenance, or repair people in the home and whether his home had been burglarized before August 11, 2004:Q. How large of a house is it?
A. It's about 2,400 square feet.
Q. And how many bedrooms to the place?
A. Three.
Q. Have you lived there with anyone else since 1972?
A. Well, my wife and I lived there for seven or eight years and then we got divorced and then I lived there by myself from that point on.
Q. Would you say there's been a lot of people in and out of the house since 1972?
A. Friends.
Q. Any maintenance people?
A. No.
Q. Never had any work done on the house, no renovation?
A. We remodeled once.
Q. Ever had a repairman come to your house and do any work?
A. I usually repair most of my own stuff.
Q. Had you been burglarized before 8/11/05?
A. Yes.
Q. When was the last time you were burglarized before that?
A. I could only — I could only guess. It had been a long time. It had been a long time. Gosh, I guess probably during the '70s, I would say.
Q. That was the one and only time?
A. Let's see. I think I — I think I've been hit twice. I think I've been hit twice in the time I've owned the house. Once I was on a ski trip and then once they just hit it while I was at work, but it's been a long time.During his cross-examinations of the State's fingerprint technicians, defense counsel questioned the difficulty in lifting a print and how factors, such as dust and smudging, can affect the collection of a comparable print. Counsel's cross-examination of Kitty Little, a crime scene technician with the Dallas Police Department, includes the following:
Q. So if — if too much or too little powder is used to dust for a fingerprint, it could be confused with someone else's print, couldn't it?
A. No, it couldn't be confused because there would be no identifying marks. I mean, it could be anybody's print.
Q. But the fact that it might be smudged or distorted in some way, couldn't someone confuse that with being someone else's print or someone else might confuse it with being someone else's print?
A. No —Defense counsel also questioned Genovese, the State's fingerprint expert, regarding the scientific validity of fingerprinting:
Q. Now, the practice of fingerprinting is based on the premise that all fingerprints are unique, that no two persons have the same fingerprints; is that correct?
A. That's correct.
Q. But isn't that really an unproven premise?
A. Well, I mean, of course, you know, we haven't taken everybody's fingerprints of everybody that's lived throughout the ages and done a comparison, but we can say like within the United States from the last hundred years, there's been probably millions of prints that have been looked at and not once has one print been the same coming from different individuals.
Q. But there's really no scientific basis for that premise that no two persons have the same prints. There's really no scientific basis. All we're going on is a long age-old premise that goes back about a hundred years that no two prints are alike?
A. Well, actually it is based on scientific principles, yes.Under further cross-examination, Genovese admitted it was "possible" for a fingerprint to be misidentified and there are no probability calculations in fingerprint identification like those in DNA testing. The Rule 404(b) Hearing Before the start of the trial, appellant's counsel filed a motion in limine asking the court to restrict the State from admitting evidence of appellant's related offenses. The trial court considered this issue at a rule 404(b) hearing held outside of the jury's presence. During the hearing, the State argued that evidence of five other burglaries committed by appellant should be admitted to show intent, identity, and to rebut defense counsel's suggestion on cross-examination that appellant's fingerprints were found inside Isett's home either because he had some lawful purpose for being there or because they were identified by mistake. The State also argued that all but one of the burglaries occurred within a two-week period either before or after the burglary of Isett's home and three of those burglaries took place "at an apartment complex that was within 1.42 miles" of Isett's house. Defense counsel argued there was not "enough commonality running through the extraneous offenses to match up with the offense here on trial." He also asserted that under rule 403's balancing test, the probative value was substantially outweighed by the likelihood of prejudice. After listening to these arguments, the trial court determined evidence of the five burglaries was admissible:
Well, Mr. Dark, Mr. Watkins, the Court has been thinking about this issue all day and I was going to see how the testimony was presented. I'm inclined to admit the 404(b) evidence. I will instruct the jury prior to the introduction of this evidence on the 404(b) issue. I will also instruct the jury in writing in the Court's charge.Following the ruling on admissibility, the jurors returned to the courtroom and were instructed as follows:
the following evidence concerning alleged offense or offenses, other than the offense alleged in the indictment, may only be considered if, one, you believe beyond a reasonable doubt that the defendant committed such offense or offenses, if any and even then you may only consider said evidence in determining the motive, opportunity, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense alleged against him in the indictment. You are not to consider this evidence for any other purpose.The Extraneous Offense Evidence Shawn Mark Richer testified that on August 19, 2004, at 5:00 p.m., he returned to his one-bedroom, first-floor apartment after work to find the front door unlocked. He entered the apartment and found that someone had gone through nearly everything in his apartment, leaving it in disarray. Many items had been taken including DVDs, video games, and wine. The burglar entered the apartment by prying open the sliding door on the patio. Richer's apartment was located approximately ten miles from Isett's house. Sharon Gobble testified that on June 8, 2004, she returned to her one-bedroom, first-floor apartment on 7900 Churchill Way at 8:00 p.m. to discover that the contents of some boxes she had packed had been dumped out. Many items were taken including a DVD player, VCR, camera, jewelry, and sports memorabilia. The burglar entered the apartment by breaking a rear bedroom window. Gobble's apartment was located approximately two miles from Isett's home. Albert Lucas went on vacation in late August of 2004. He returned to his apartment at 7601 Churchill Way to find it had been ransacked. Many items were taken including a shotgun, DVD player, two rifles, binoculars, knives, and jewelry. The burglar entered the apartment by prying open the sliding glass door on the patio. Ryan Higgins testified that on July 17, 2004, he returned to his one-bedroom, first-floor apartment on 7601 Churchill Way shortly after midnight to discover the front door was locked from the inside by a deadbolt lock. Some items had been taken including a laptop computer, and the apartment had been ransacked. The burglar entered the apartment by prying open the sliding glass door on the patio. Jonathan Gilbert testified that on August 18, 2004, he returned to his one-bedroom, first-floor apartment on 7601 Churchill Way after work to discover it had been ransacked. Many items were taken including a watch, DVD player, jewelry, and food. The burglar entered the apartment by prying open the sliding glass door on the patio. Aside from the aforementioned testimony, the State also presented fingerprint evidence relating to the extraneous offenses. Ernell Smith, a crime scene technician with the Dallas Police Department, testified that latent fingerprints were found in the apartments of Richer, Gobble, Lucas, and Gilbert. Another crime scene technician, Rosa Rodriguez, testified that latent fingerprints were also recovered from Higgins's apartment. Genovese, the State's fingerprint expert, testified that the latent fingerprints found in the apartments of Richer, Gobble, Lucas, and Gilbert matched appellant's fingerprints. Standard of Review The admission of extraneous offenses is reviewed for abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). Thus, we must uphold the trial court's decision to admit the evidence as long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 889 (Tex.Crim.App. 2002); Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1991). Rule 404(b) Texas Rule of Evidence 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Tex. R. Evid. 404(b); Dennis v. State, 178 S.W.3d 172, 177 (Tex.App.-Houston [1st] 2005, pet. ref'd). Extraneous offense evidence may be admissible, however, when it has relevance beyond character-conformity to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); Moses, 105 S.W.3d at 626. The State's Argument The State claims the trial court properly admitted the prior burglaries because they fall under rule 404(b)'s identity and intent exceptions and because "they were admitted in response to a defensive theory raised by appellant." The State argues appellant's "cross-examination raised a defensive theory that his fingerprints were found in Isett's home because he had been there for some lawful purpose or because they were identified by mistake." However, the jury was instructed it could only consider the extraneous offense evidence "in determining the motive, opportunity, plan, knowledge, identity, or absence of mistake or accident of the defendant." The jurors were told not to consider the evidence "for any other purpose." The jury was not instructed it could consider the extraneous offense evidence in determining intent or to rebut a defensive theory. In Owens v. State, the court of criminal appeals reversed the court of appeals' holding that extraneous offense evidence was admissible to rebut the defendant's defensive theory, noting that the defensive theory was not presented to the jury in the trial court's limiting instruction. Owens v. State, 827 S.W.2d 911, 917 (Tex.Crim.App. 1992). The court stated: "Absent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant's `system' to rebut the weight or credibility of appellant's `frame-up' theory or relied on it for an improper basis such as character conformity." Id.; see also Curtis v. State, 89 S.W.3d 163, 170-71 (Tex.App.-Fort Worth 2002, pet. ref'd) (refusing, in light of Owens, to consider whether admission of extraneous offense evidence to rebut defensive theory was proper because jury was not instructed on that basis). Therefore, we will only address whether the evidence was properly admitted on the basis of identity. Identity The issue of identity can sometimes be raised by the defendant during cross-examination of the State's witnesses. Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996); Walker v. State, 588 S.W.2d 920, 922 (Tex.Crim.App. 1979). As the court of criminal appeals has explained
In some limited circumstances, evidence of extraneous offenses may become admissible where the effectiveness of the state's direct evidence, though uncontradicted by other evidence, is completely undermined by defense cross-examination. The mere fact that the state's witness was cross-examined will not, in and of itself, authorize the state to introduce evidence of extraneous offenses. Rather, it is the responses elicited from a state's witness on cross-examination which may allow the state to subsequently introduce extraneous offense evidence.Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App. 1988) (citation omitted), disapproved of on other grounds by Alford v. State, 866 S.W.2d 619 (Tex.Crim.App. 1993); see also Walker, 588 S.W.2d at 922; Albrecht v. State, 486 S.W.2d 97, 102 (Tex.Crim.App. 1972); DeLeon v. State, 77 S.W.3d 300, 314 (Tex.App.-Austin 2001, pet. ref'd). In the present case, defense counsel's cross-examination of Isett and the State's fingerprint witnesses did nothing to raise the issue of identity because the witnesses were not impeached in any material detail of their testimony. Neither the fingerprint experts nor the technicians ever admitted to any defects in appellant's fingerprints or in the comparisons of appellant's fingerprints. And while defense counsel asked questions of Isett which suggested the fingerprints could have been left in the house by a maintenance worker or a former house guest, Isett firmly rejected these explanations and pointed out that no one else had been in the house for many years. Therefore, identity was not raised as an issue in this case. Harm Analysis After concluding the trial court erroneously admitted the extraneous offense evidence, we next determine whether the error was harmless. Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any nonconstitutional error that does not affect substantial rights must be disregarded. See Tex.R.App.P. 44.2(b). The erroneous admission of an extraneous offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 726, 729 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citations omitted). If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb, 36 S.W.3d at 182. In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 359-60. In the present case, the admission of five extraneous burglary offenses undoubtedly had more than a slight effect upon the jury's decision. Almost as much time was spent developing the extraneous offenses as in proving the underlying offense, resulting in a far greater likelihood of juror distraction. The State introduced nine witnesses to prove the extraneous offenses and only five to prove the substantive offense. The State introduced forty-four exhibits to prove the extraneous offenses and only eighteen to prove the substantive offense. The evidence of the substantive offense spans 125 pages of this record. Evidence of the extraneous offenses takes up 113 pages of the record. And this was the last evidence the jury heard before retiring to deliberate. Furthermore, the extraneous offense evidence was relied upon heavily by the State in its closing argument to bolster the credibility of its fingerprint experts and to support its contention they did not err in identifying appellant's fingerprints as those found in Isett's house. The list of reasons given in the trial court's limiting instructions could have only served to confuse the jury. In light of these facts, we have grave doubts the trial court's error in allowing evidence of the extraneous offenses did not affect the outcome of this case. Based upon our review of all the evidence, as discussed above, we must treat the error as having a substantial and injurious effect upon the jury's verdict. Accordingly, we find the error harmful and reversible. Appellant's first issue is sustained. We reverse appellant's conviction and remand the case for a new trial. We need not address appellant's second or third issue.