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concluding that even if evidence of defendant's gang membership was erroneously admitted, such error would have been harmless because of the presence of eyewitness testimony and other substantial evidence supporting the conviction
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No. 05-09-00136-CR
Opinion issued April 4, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F07-49491-L.
Before Justices MURPHY, FILLMORE, and MYERS.
OPINION
Appellant, Billy Watson, was convicted of murder and sentenced to seventy years in prison. In five issues, he argues that the trial court improperly admitted evidence he was affiliated with a gang, the State struck at him over the shoulders of defense counsel, the evidence is legally and factually insufficient, and the State used improper jury argument during the punishment phase. We affirm.
Background
Danny Marks and the complainant, Kevin Strain, first met at the county jail and later became friends at the Cornell Treatment Center, a court-ordered substance-abuse treatment center. When they were released from Cornell, they went into business together trimming trees. They also repossessed automobiles. On the afternoon of March 3, 2007, Marks and Strain drove in Marks's pickup truck to Fitzhugh Avenue near Fair Park in Dallas to buy drugs. The area is known for illegal drug sales. At approximately 5:00 p.m. on March 3, Juan Montes was standing outside of his home on South Fitzhugh when two males, later identified as Strain and Marks, drove up to him in a two door pickup truck. Strain asked Montes for twenty-five dollars worth of crack cocaine. Marks testified that Strain was holding the money for the purchase in his hand. According to Strain and Marks, Montes told them he did not have that much crack on hand but that if they drove around the block and came back, Montes knew a "guy" who would, as Marks recalled, "take care of you on that." They circled the block and returned a few minutes later. Montes testified that he did not remember saying that he could find any crack or telling them to circle the block but testified that he told them to drive a couple of blocks to the vicinity of a nearby store, where they might find someone who would sell them crack. Shortly after the pickup truck returned, Watson and his friend, Edward Sims, drove by Montes's house. Watson was driving a car owned by his friend, Alicia Johnson, and Sims was in the passenger seat. Watson rolled down the window and asked, referring to the truck, "What do they want?" Montes told Watson that the occupants of the truck wanted to buy a "quarter," which was twenty-five dollars worth of crack cocaine. Watson walked over to the passenger side of Marks's truck and spoke to Strain. Marks could not hear the conversation. According to Montes, Watson wanted the money before he would give Strain any cocaine. Montes heard Strain reply, "No, man, I wasn't born yesterday." Strain and Watson exchanged racial slurs. Watson started to walk away from the truck, then stopped. Watson returned to the car, and he and Strain struggled with each other after Watson reached his arm through the window. Then there was a shot. Marks heard the shot but did not see a gun. Montes's testimony regarding the gun was inconsistent. He initially stated that he saw Watson point a gun at the occupants of the pickup truck and say, "Give me the money, man," and then Strain grabbed the gun and the two of them struggled. Watson tried to pull back his arm, at which point Montes heard the gunshot. Montes believed the shooting was an accident because the gun went off while Watson and Strain were struggling. But on cross-examination, Montes said that he did not remember seeing a gun. Sims testified that he saw Watson walk to the passenger side of the vehicle, and then saw Watson pull out a .357 revolver that had belonged to Sims. Watson had that gun in his pocket when he got out of Johnson's car, according to Sims. Sims also said that Watson reached into the truck toward Strain and, after Strain tried to grab the gun, there was a brief struggle between Strain and Watson over control of the weapon. Sims heard the gunshot, and he could see that Strain had been shot in the face. Sims estimated that the confrontation between Watson and Strain lasted no more than twenty seconds. Marks denied that he or Strain carried a gun. After the shooting, the pickup truck immediately drove away. Watson fell down and then walked back to his car. When Watson got back to the car, Sims told him, according to Sims's testimony, "You shot that man." Watson replied, "No, I didn't." Watson drove Sims home, and then Sims took the empty shell casings from the gun that had been fired and threw them away. He did not know what happened to the gun. Marks did not realize Strain was injured until he had driven about half a block. He did not see Strain's wound but there was blood on the floor board and Strain was slumped over and "kind of lifeless." Marks drove in the direction of a nearby fire station, but he stopped when he saw a woman with a cell phone standing in front of a car wash. He used the woman's cell phone to call 911. The emergency response was, as Marks recalled, "very quick." Strain was mortally wounded and later died at Baylor Hospital. The bullet entered his right cheek and traveled slightly upwards through the lower part of his brain and partially exited out of the left rear part of his skull. Sims, who had known Watson for several years, testified that he and Watson planned to rob the occupants of the pickup truck because they needed gas money to drive to a motel in north Dallas and "rob a drug dealer." Sims said that he thought Watson only intended to rob Strain and Marks, not shoot or kill anyone. Jadron London, who met Watson when they were incarcerated together at the county jail, claimed that Watson told him that he was in jail for "hitting a lick," which was street slang for robbing someone. Watson testified that, on March 3, 2007, he borrowed a car from Johnson and drove alone from Pleasant Grove to a store called "The Cut," which was located in east Dallas. When he arrived he saw Sims standing in front of the store. Watson eventually went to another store across the street, "The Game Room," and later offered to take Sims home. As Watson was getting something out of his car, a pickup truck pulled up. The passenger in the truck, Strain, asked, "Hey, you got some?" Watson responded that he did not sell drugs, and the truck drove away. Watson and Sims left the area soon thereafter. Watson denied having a gun on himself or in the car. According to Watson's testimony, Montes "flagged" him down as he and Sims drove down Fitzhugh Avenue. After Watson pulled over, Montes told him that "some dudes want you." Watson walked over to a truck that was also stopped. He recognized Strain and Marks from the previous encounter. Watson told Strain he had just seen him a "while ago," and repeated that he did not sell drugs. Watson noticed Strain was wearing a baseball cap that had a picture of a Dixie flag on the front and was inscribed with the words "Southern Pride." Watson told Strain, "You ain't going to get no dope around here with that hat on your head anyway." Strain responded, "Nigger, this is a free mother fucking country. I can wear anything I want to wear." Watson replied, "I got your mother fucking nigger, Cracker." Strain got out of the truck and pulled out a gun. Watson grabbed the gun, and the two of them wrestled over it. He thought Strain was going to kill him. Watson heard a shot, and he fell backwards. He saw Marks get out of the truck. Watson then ran back to his car. Sims asked, "What happened? What was that noise?" Watson replied, "The dude tried to kill me." He and Sims drove away and returned to Pleasant Grove. Watson repeatedly denied that he sold drugs, and he denied carrying a gun on the day in question. Watson also testified that he was not trying to rob or to kill Strain. He only learned that Strain had died when the Dallas Police Department's Gang Unit went to his mother's house. On cross-examination, the State asked Watson if he knew that Sims belonged to a gang called the "223 East Grand Bloods." Watson said Sims was just a friend and denied knowing anything about the gang or whether Sims, Montes, or Montes's brother were members of that gang. When asked about photographic evidence that showed a great deal of blood in the truck but very little of it at the area where Watson said Strain was standing when he was shot, Watson stood by his testimony that the shooting occurred after Strain got out of the truck. The prosecutor also asked Watson how Strain could have had the strength to get back into the pickup after being shot in the head, and Watson said that Strain's friend, Marks, must have helped him. On rebuttal, and over the defense's objection, the State introduced evidence that Watson was affiliated with a gang. Daniel Rosales was a detective with the Gang Unit of the Dallas Police Department. He identified gang members and filed cases involving gang members. He would generally identify gang members based on tattoos or because they were wearing red or blue clothing. But on some occasions he would ask, and they would respond, "Hey, I'm so and so gang member." If Rosales identified a person as a suspected gang member, he would create a fill-in-the-blank "card" for that person that included street names, what clothing the individuals wore, what school they attended, and who identified them. According to Rosales, the "223 East Grand Bloods" was a criminal street gang that was involved with aggravated robberies, aggravated assaults, sales of narcotics, and homicide. Rosales claimed Watson had identified himself to Rosales as a member of the "223 East Grand Bloods" in 2005. Rosales testified that he created a "card" for Watson, but offered no further details regarding the identification. Rosales did not see any gang colors or tattoos on Watson, nor did Watson have any gang paraphernalia. The State also recalled Marks, who testified that Strain did not have a gun. Marks noted that Strain could not have gotten out of the truck because he had a broken leg and was using a crutch. Strain had broken his leg four to six months before his death and "had some pins and other stuff done to it," and he could not walk without the crutch. Marks was certain that Strain was inside the truck when he was shot. In response to the State's rebuttal evidence, Watson called two witnesses. The first defense rebuttal witness, Linda Kay Hooks, was the mother of a friend of Watson. Sims was her nephew. Hooks testified that she had known Watson for ten years and that he was respectful, trustworthy, and not violent. She did not believe he was a member of a gang. The second witness, Lee Edward Jones, was Hooks's son and Watson's friend. Jones testified that he had known Watson for eleven years and Watson was not violent, nor did he have a reputation for violence. According to Jones, Watson was not a member of the "223 East Grand Bloods" but Watson's friend, Sims, belonged to that gang. Jones had never seen Watson with a gun. The basis for the capital murder indictment against Watson was that he committed murder while attempting to commit a robbery. The jury acquitted Watson of capital murder but found him guilty of the lesser-included offense of murder. After hearing additional evidence, the jury sentenced Watson to seventy years in prison. This appeal followed.Discussion Testimony regarding gang membership
In his first issue, Watson argues the trial court improperly admitted the evidence that he was affiliated with a criminal street gang. Assuming without deciding that the trial court erred in admitting the evidence of gang membership, we conclude the error was harmless. See Tex. R. App. P. 44.2(b) (providing that any error, other than constitutional error, that does not affect substantial rights must be disregarded). A substantial right is affected when, after reviewing the record as a whole, a court concludes the error had a substantial and injurious effect or influence on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In conducting a harm analysis, we 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 Watson's claim. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). In assessing harm, factors to be considered include 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. Id. The weight of the evidence of Watson's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 357; see Tex. R. App. P. 44.2(b). The gang-related evidence was only a small part of the total evidence introduced during the trial of this case. While the other evidence of guilt is not a sole determining factor, any implications of admitting the disputed evidence and the amount of weight the jury placed on it were minimal because the jury heard other substantial evidence regarding Watson's conduct. The evidence of gang membership was overshadowed by the other evidence of guilt presented by the State, and the State made only a few brief references to the "223 East Grand Bloods" evidence in its closing argument. We also note that the trial court instructed the jury that they should consider evidence "with respect to alleged gang membership" only if it first found beyond a reasonable doubt that such evidence was true, "and only then on the issue of [Watson's] credibility as a witness in this case." After carefully reviewing the record, including our consideration of the sufficiency of the evidence, we conclude that the error, if indeed there was one, had no or very slight effect on the verdict of the jury. Therefore, any possible error was harmless. We overrule Watson's first issue.Striking at Watson over the shoulders of his counsel
In his second issue, Watson argues that the State improperly struck at him over the shoulders of his counsel by eliciting testimony from Sims that defense counsel tried to convince Sims not to testify in this case, thereby violating Watson's due process rights. According to the record, Sims pleaded the Fifth Amendment when first called to testify and agreed to testify only after the State offered him immunity for the conduct about which he testified. During his direct testimony, Sims testified that he met with defense counsel (who had represented Sims on an unrelated aggravated assault charge that was reduced to a misdemeanor) shortly before trial, and during that conversation counsel indicated that the State's case would be significantly weakened if Sims declined to testify. The relevant portion of the record reads as follows: Q [State]. But you know Mr. Allen [defense counsel]; is that right?A [Sims]. Yes, sir.
Q. And you talked to him Sunday night?
A. Yes, sir.
Q. Were you under the impression that if you didn't testify, nothing would happen to Billy [Watson]?
A. Yes, sir.
Q. Why were you under that impression?
A. Because, you know, when they was-when they was subpoenaing-when they started-when the constables or DPD or whoever came out to serve the subpoenas, you know, Juan and Carlos got subpoenaed, you know. My other homeboy got a-Byron got subpoenaed. I was the only one that didn't. The other dude, the driver that was in the truck, I heard they couldn't find him. And Mr. Allen [defense counsel] came to the jail. He talk-I said, Man, do you think Billy going to get off? We was on the phone. He put the phone down, and he said (witness gesturing.)
Q. What did you take that to mean?
A. If I don't talk, then he will.The State then continued with its evidence. On cross-examination, defense counsel tried to persuade Sims to retract this testimony, but Sims stood by the accusation. Defense counsel did not object to Sims's testimony when it was offered, but later moved for mistrial at the close of the State's evidence. Defense counsel objected not only to Sims's statements but also to the fact that the State elicited them during direct examination. The trial court denied the motion for mistrial but gave the jury the following oral limiting instruction:
that if any of you witnessed or heard anything when the witness Sims was testifying regarding something that his — Mr. Allen, Mr. Watson's attorney, might have said or done during that interview, you all will disregard that testimony by Mr. Sims or any gestures made by him, wholly disregard it and not consider it for any purpose whatsoever as evidence in this case.When a party's first action is to move for mistrial (as opposed to an objection or a request for an instruction to disregard), the scope of appellate review is limited to whether the trial court erred in not granting the mistrial. Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004). We review a trial court's denial of a motion for mistrial for an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). A mistrial is appropriate only for highly prejudicial and incurable errors. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77. In most instances, an instruction to disregard will cure the prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000). An instruction to disregard is presumptively inadequate only in the most blatant cases; only offensive or flagrantly improper conduct warrants reversal when there has been an instruction to disregard. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). When the trial judge instructs the jury to disregard an improper comment or question, we presume the jury will follow the judge's instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). Likewise, when arguments that "strike over the shoulders of defense counsel are not particularly egregious, an instruction to disregard will generally cure the error." Wilson v. State, 7 S.W.3d 136, 148 (Tex. Crim. App. 1999). "Only in extreme circumstances, where prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77 (citing Simpson, 119 S.W.3d at 272). The disputed evidence in the present case does not fall into this category. We conclude that any harm Watson may have suffered was cured by the trial court's instruction to disregard. See Wilson, 7 S.W.3d at 148; Watson v. State, 532 S.W.2d 619, 624 (Tex. Crim. App. 1976). Thus, a mistrial was not required. See Wilson, 7 S.W.3d at 148; Vela v. State, 516 S.W.2d 176, 179 n. 5 (Tex. Crim. App. 1974). We overrule Watson's second issue.
Sufficiency of the evidence
In his third and fourth issues, Watson argues the evidence is legally and factually insufficient to show that he voluntarily caused Strain's death. The court of criminal appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Watson argues the evidence in this case established that his conduct was not voluntary under section 6.01(a) of the penal code, which provides that "a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." See Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). This section performs the same function as the former defense of "accident." Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982). "Voluntariness" within the meaning of section 6.01 only refers to one's physical bodily movements. See McFarland v. State, 928 S.W.2d 482, 513 (Tex. Crim. App. 1996). Thus, the issue of voluntariness of one's conduct or bodily movements is separate from the issue of one's mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). In this case, there is evidence in the record from which the jury could have concluded Watson's conduct was voluntary. Watson testified that he struggled with Strain for control of Strain's gun for some period of time before it fired. But the jury also heard evidence that Watson pulled out a revolver and reached into the cab of the truck toward Strain. Strain tried to grab the gun, and there was a brief struggle between Strain and Watson over control of the weapon. The jury also heard testimony that the fatal gunshot occurred when Watson tried to pull back his arm, which was holding the gun. Conduct is not rendered involuntary merely because the defendant did not intend the result of his conduct. See Adanandus, 866 S.W.2d at 230; George v. State, 681 S.W.2d 43, 46 (Tex. Crim. App. 1984). Moreover, the jury was the sole judge of the weight and credibility of the evidence, and was therefore free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. See, e.g., Brooks, 323 S.W.3d at 899-900; Laster, 275 S.W.3d at 517-18. We overrule Watson's third and fourth issues.State's argument at punishment
In his fifth issue, Watson argues that, during closing arguments at the end of the punishment phase of the trial, the prosecutor "improperly argued that punishment in this case should reflect the jury's feelings about the commission of a capital murder, even though the jury had acquitted Watson of capital murder." According to the record, the prosecutor twice referred to "capital murder" during his closing argument at the end of the punishment phase, and he also repeatedly referred to evidence that the shooting occurred during an attempted "lick" or robbery. Watson calls our attention to the following statements from the prosecutor's closing argument:You don't go rob somebody and then when they try and defend themselves shoot them and claim sudden passion. Doesn't float that way. . . .
You know, this is a tough case. I truly believe it was a difficult case. I think there was some conflict about capital murder. And I want to kind of address that stuff. Capital murder. . . .
As my partner said, [capital murder] carries an automatic life sentence. It's also-additional elements you had to prove. You know, we had to prove he was committing a robbery and had the specific intent to kill somebody. And I think there was confusion because all these witnesses got up and said-. . . .
They [the witnesses] all said that when Billy [Watson] pulled the gun and demanded the money that Kevin [Strain] grabbed the gun and it just went off. . . .
But it's kind of duplicitous to say, I went up to the car to rob them and the gun went off. . . .
. .
You kind of assume the risk once you rob somebody with a gun. . . .
But I think there's no evidence credibly-credible evidence that suggests a robbery wasn't taking place other than the defendant's testimony. . . .
But he has the audacity to shoot and kill somebody while attempting to rob them and then turn it around and say, ["]He pulled a gun on me. . . .
You know he's committing a robbery. . . .
You know he was out there banging. . . .
Yes, let's just hit a lick. Just get out and, bam, he's changed the life forces of so many people. . . .
He knew exactly what he was doing. He was hitting a lick. . . .
What is a murderer due, someone who's hitting a lick and shoots somebody? What do they get? . . .Proper jury argument is limited to (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers to opposing counsel's argument, and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Swarb, 125 S.W.3d at 685. In this case, a robbery motive was merely one way of explaining evidence that showed, among other things, Watson was carrying a firearm even before he approached the pickup truck. The prosecutor did not ask the jury to punish Watson for an offense under section 29.03 of the penal code (aggravated robbery) or the section 19.03 capital murder offense, but instead reasonably implied, based on evidence before the jury, that a robbery hypothesis was the best explanation for Watson's actions on the day in question. The jurors were entitled to consider such evidence in determining Watson's punishment for murder. See Santana v. State, 714 S.W.2d 1, 8 (Tex. Crim. App. 1986) ("At the penalty stage of the trial, the jury may consider all of the evidence adduced at the guilt stage."). Appellant cites two cases from other appellate courts, State v. Restrepo, 878 S.W.2d 327 (Tex. App.-Waco 1995, pet. dism'd) and Monroe v. State, 871 S.W.2d 801 (Tex. App.-Houston [14th Dist.] 1994, no pet.), abrogated on other grounds by State v. Hight, 907 S.W.2d 845 (Tex. Crim. App. 1995), as support for his contention that the prosecutor's closing argument improperly urged the jury to consider facts associated with the capital murder offense even though appellant was not convicted of that offense. Restrepo and Monroe, however, are different from the situation here. In those cases, the State was attempting to reprosecute defendants before new juries for murder ( Restrepo) and attempted capital murder ( Monroe) after they were previously convicted of the lesser-included offenses of, respectively, voluntary manslaughter ( Restrepo) and aggravated assault of a peace officer ( Monroe). See Restrepo, 878 S.W.2d at 328; Monroe, 871 S.W.2d at 802-03. The issue in both cases was whether those reprosecutions violated constitutional protections against double jeopardy. Neither case involved the proper scope of jury argument during the punishment phase of a trial, which is the only issue here. Moreover, nothing was said in either opinion regarding further limitations — apart from those noted above — in the penalty phase of a trial on the jury's consideration of evidence adduced at the guilt-innocence stage, nor on what reasonable deductions could be drawn from such evidence. Applying the above principles, we conclude the prosecutor's comments were not improper. We overrule Watson's fifth issue. We affirm the trial court's judgment.