No. 05-09-01060-CR
Opinion Filed May 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F08-50679-H.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MORRIS.
At trial, a jury convicted Calvin Denell Williams of the murder of Michael Kimble. On appeal, he complains that the evidence against him is legally and factually insufficient and the trial court erred by admitting certain evidence, permitting a witness to testify, and conducting a hearing on the State's motion for continuance in his absence. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
The day before Kimble's body was discovered, he was seen with appellant several times. The deceased had hired appellant to work with him and his nephew on a roofing job they were doing for a contractor. The nephew testified that while they were working on the roof, appellant became visibly angry and demanded to know when he would be paid. The day before Kimble's body was found, appellant, the deceased, and his nephew worked on the roof together for a time, then appellant, the deceased, and the contractor went to Home Depot together to get supplies. They never returned to the job site while the nephew was there. That same day, a woman who knew Kimble saw two men in the driveway of the house where the roof work was occurring. The men were arguing about money in a car that matched appellant's. The owner of the house told the woman that the deceased was one of the men in the car. Later in the day, the woman saw a man arguing with the deceased about money at two separate locations in the vicinity. She first saw a man arguing with the deceased in front of a donut shop. She saw the same man arguing with the deceased sometime after 8:00 that night at the parking lot for the Packing House Market on Malcolm X Boulevard. She heard the man say, "I want my money or somebody's going to get hurt." At approximately 8:50 that night, she saw the deceased standing by himself in front of the market. His body was found the next day near a warehouse at Forest Avenue and Lamar Street in South Dallas. He had died from multiple sharp force injuries. Appellant and the deceased were both drug addicts. What appeared to be a crack pipe was found in the deceased's clothing, and testing of his blood showed the presence of cocaine and a blood-alcohol level over twice the legal limit for intoxication. DNA evidence found on appellant's belt presumptively tested for blood and was linked to the deceased. Testing of other items of appellant's clothing and a folding knife, all gathered from appellant's home four days after the deceased's body was discovered, was inconclusive. Initially, appellant denied any involvement in the victim's death. Nine months later, in a phone call linked to his jail account, he told his wife he had decided he was going to claim self-defense. A police officer who had talked extensively with both appellant and his wife was able to identify both their voices on the recording. At the time of trial, appellant's wife had left the state, and the prosecution had been unable to locate her. After the deceased's death, appellant stopped visiting the deceased's home, which he had been doing on a nearly daily basis. The deceased's nephew encountered appellant at the county jail. Appellant threatened the nephew that he would kill him if he participated in the trial against him. An aunt of appellant's wife who let the couple stay overnight at her home on occasion testified that the day after appellant's arrest, he called her house from the jail. She confronted him about killing the deceased and appellant claimed the deceased had said he was going to "go back and hurt my wife, so I done what I had to do." The night before the deceased's body was found, appellant and his wife had stayed at the aunt's home. The aunt overheard him angrily complaining to his wife that a man owed him money. She stated that she never heard appellant claim someone had tried to hurt her niece until after appellant was in jail. Discussion
In his first two issues on appeal, appellant complains that evidence against him is legally and factually insufficient. The court of criminal appeals held in Brooks v. State that the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979), is now "the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We will therefore address appellant's legal sufficiency challenge only. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Appellant specifically complains the evidence against him "falls short" of permitting the jury to find him guilty beyond a reasonable doubt. We disagree. Appellant was seen angrily arguing with the deceased about money he felt he was owed the day before the deceased was found stabbed to death. Appellant told police he had no involvement in the deceased's death, but he claimed to his wife's aunt that he had killed the deceased to protect his wife. And to his wife he stated that he was going to claim self-defense in the case. Finally, DNA evidence from appellant's belt — the item of clothing it might not have occurred to him to wash during the days after the offense — presumptively tested positive for blood and was conclusively linked to the deceased. After the offense, appellant avoided the deceased's home and his wife fled the state. Viewing the evidence in the light most favorable to the verdict, we conclude it is legally sufficient to support appellant's conviction for murder. We resolve his first and second issues against him. In his third issue, appellant complains the trial court erred when it admitted into evidence an audio CD of the telephone conversation with his wife in which he stated that was going to claim self-defense. Appellant contends the CD was not properly authenticated. The requirement of authentication is a condition precedent to the admissibility of evidence and is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). A trial court should admit evidence that is relevant based upon a conditional fact of authentication only if there is sufficient evidence to support a jury finding that the conditional fact is true. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Testimony of a witness with knowledge that a matter is what it is claimed to be, distinctive characteristics of the evidence itself, and testimony describing a process or system used to produce an accurate result may all be used to authenticate evidence. See Tex. R. Evid. 901(b) (1), (4), (9). The trial court does not abuse its discretion in admitting evidence where it "reasonably believes that a reasonable juror could find that the evidence has been authenticated." See Druery, 255 S.W.3d at 502. We may not reverse the trial court's decision when that decision is within the zone of reasonable disagreement. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Here, the recorded phone conversation was authenticated by the testimony of several witnesses. An investigator at the district attorney's office stated that he was able to access appellant's phone calls from the jail through his assigned identification number. The investigator acknowledged that he was aware that inmates sometimes use other inmates' ID numbers to place phone calls. The administrator of the inmate phone system at the jail testified that starting in September 2008, authorized people could look up an inmate's ID number and retrieve recordings of all the calls that inmate has made. A person receiving a phone call from an inmate has to agree to accept it, and the call is collect. The call is limited in duration to fifteen minutes. A police detective who investigated the case identified the voices of appellant and his wife on a recorded phone call made from the jail on October 21, 2008 and linked to appellant's ID number. The officer stated that he had spoken to both people extensively. On the phone call, appellant tells his wife that he has decided to claim self-defense. At one point in the call, the name "Cal" is used. At another point, appellant states that he had not heard from his new lawyer yet; the record shows a new public defender took over appellant's case on October 2, 2008. And the phone call was made to a phone number with the area code of 504, a region that includes New Orleans, Louisiana, where both appellant and his wife originally lived. Given the state of the evidence in appellant's case, we cannot say the trial court abused its discretion in admitting the CD. A reasonable juror could have found that the phone call recording was authenticated. We resolve appellant's third issue against him. In his fourth issue, appellant complains the trial court erroneously permitted a witness who had not previously been identified on the State's witness list to testify at trial. When appellant objected that Scott Seacat, the administrator of the jail's telephone system, had not been included in the State's witness list, the trial court conducted an unrecorded conference out of the presence of the jury. At the conclusion of the conference, the trial court overruled appellant's objection. Appellant argues that the trial court abused its discretion in permitting Seacat to testify because he was denied his right to question the potential jurors during jury selection about whether they were acquainted with Seacat. He further argues that although he failed to request a continuance based on the trial court's action, a continuance would not have addressed the harm caused by his not being able to question the potential jurors about Seacat. In determining whether the trial court abused its discretion we generally examine two factors: (1) whether the State's action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the undisclosed witness would testify. See Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.-Austin 2001), aff'd, 92 S.W.3d 531 (Tex. Crim. App. 2002). Nothing in the record before us suggests that the State acted in bad faith in failing to turn over Seacat's name. As discussed above, Seacat testified solely about the jail system's method of identifying and recording the inmates' outgoing telephone calls. He had no specific knowledge pertaining to the charged offense, nor did he testify about the content of appellant's calls. Moreover, appellant's attorney told the judge before trial that he knew the State would be offering a phone call into evidence. Accordingly, it is reasonable to assume appellant could anticipate a witness would testify about the jail's phone system. And although appellant now contends that if he had Seacat's name before trial, he could have questioned the potential jurors about whether they knew him, the record shows that during jury selection he did not ask such a question about any of the people in the State's witness list. The trial court did not abuse its discretion in permitting Seacat to testify. We resolve appellant's fourth issue against him. In his final issue, appellant complains the trial court reversibly erred by conducting a pretrial hearing in his absence. The trial court held the hearing on the State's second motion for continuance. Appellant's attorney affirmatively waived appellant's presence there. At the hearing, the prosecutor explained that she was asking for the continuance because she had discovered that further DNA testing of appellant's jeans needed to be done in the case and because she was still trying to locate appellant's wife. The prosecutor stated that she believed appellant's wife had witnessed the murder. Defense counsel opposed the continuance, arguing that the fact the wife had fled the state showed she would likely exercise her spousal privilege not to testify against appellant. He further argued that the State should have discovered the problems in the DNA testing earlier. The attorneys agreed that even if appellant were granted a personal reconnaissance bond in the case, he would not be able to leave jail because he had a pending charge against him in Louisiana for second degree battery against his wife and a new felony charge of assault on a public servant (a deputy sheriff's officer at the jail) in Dallas. The trial court granted the State's motion. Appellant contends the trial court violated his constitutional and statutory rights when it conducted the hearing in his absence. The code of criminal procedure states that the defendant must be present during any pre-trial proceeding. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1 (West 2006). It additionally states that a defendant must be personally present at the trial, with the exception of when the defendant voluntarily absents himself from trial after pleading to the indictment or the jury has been selected. Id. art. 33.03. The Fourteenth Amendment of the Constitution also requires the defendant's presence at proceedings against him "to the extent that a fair and just hearing would be thwarted by his absence and to that extent only." Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993) (quoting Snyder v. Massachusetts, 291 U.S. 97 (1934)). Where the presence of the defendant does not bear a "reasonably substantial relationship to the opportunity to defend," no harm results from a defendant's absence from the proceedings against him. Id. In this case, even if the trial court erred in conducting the hearing in appellant's absence, he was not harmed. To determine harm, we must address whether the hearing bore a substantial relationship to appellant's opportunity to defend himself in addition to addressing harm under the rules of appellate procedure. See id. at 220. Appellant's attorney in the case presented the legal arguments applicable to the motion and affirmatively waived appellant's right to be present. Even if appellant had been present at the hearing to claim that he knew his wife intended to invoke the spousal privilege or claim that the stain on his jeans was unrelated to the deceased's murder, the legal questions for the trial court to decide would not have changed. Appellant could not claim the spousal privilege on the behalf of his wife, see Tex. R. Crim. Evid. 504(b)(3), nor could the trial court accept as fact any claim by him that a stain on a pair of his jeans could not possibly be linked to the deceased's murder. Accordingly, appellant fails the reasonably substantial relationship test because nothing in the record shows "a fair and just hearing was thwarted by [his] absence." Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003). Furthermore, the record does not show appellant was harmed under the rules of appellate procedure. In assessing constitutional error, we find harm unless after reviewing the record, we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a). In assessing any statutory error, we must determine whether appellant's "substantial rights" were harmed. See Tex. R. App. P. 44.2(b). An appellant's substantial right is harmed when an error in the case has a substantial and injurious effect or influence in determining the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If it appears on the record as a whole that the error did not influence the jury, or had only a slight effect, we must conclude the error was not harmful and allow the conviction to stand. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Here, appellant's absence from the complained-of hearing could not have contributed to his conviction or punishment. Nothing in the record indicates his presence at the hearing would have changed the legal arguments presented there, nor is there any indication his presence would have furthered his defense at trial. Although he complains on appeal that the resulting three-month delay in the commencement of trial impaired his defense because the passage of time may have prevented the defense from eliciting exculpatory testimony from the State's witnesses or hindered the defense in locating rebuttal witnesses, there is no evidence in the record to show that such harm actually occurred. Accordingly, any error resulting from appellant's absence did not amount to reversible error under the appellate rules. See Routier, 112 S.W.3d at 579. We resolve appellant's final issue against him. We affirm the trial court's judgment.