Moore, Ralph Edward v. State ( 2002 )

Opinion issued October 3, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00910-CR

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RALPH E. MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 866,462

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O P I N I O N A jury convicted appellant of robbery. After finding an enhancement allegation that appellant had a prior felony conviction to be true, the jury assessed punishment at 99 years in prison and a $10,000 fine. In his first point of error, appellant contends the trial court erred in denying his motion for an expert to be appointed on the issue of eyewitness identification, and in denying him the opportunity, during the punishment phase, to cross-examine a witness for the State regarding another robbery case, in which appellant was misidentified. Appellant also contends the trial court's judgment and sentence do not reflect the jury's sentence. We affirm the trial court's judgment as modified.

Background

On May 27, 2000, the complainant, Eduardo Perez, arrived home from work around 3:00 a.m. Perez parked his truck in the parking lot of his apartment complex, got out of the truck, and began to walk to his apartment. Perez had called his wife on his cell phone to let her know he was home, and, while they talked, she watched him from their apartment window.

Appellant and another man, Leonard Grant, approached Perez and asked him for two dollars. Appellant then began to hit Perez and Grant began to kick Perez. Appellant took Perez's wallet, and then, along with Grant, got into a red car and drove away. Perez jumped into his truck and followed the two men. Appellant stopped the car suddenly, and Perez hit them from behind. Appellant ran from the scene, and Grant lay injured next to the car. Perez's empty wallet lay on the ground near Grant.

During the subsequent police investigation, a police officer spoke with Joe Merchant, the owner of the red car. Merchant told the officer that appellant was using the car on the day in question. Officers obtained a photograph of appellant, put it in a photo array, along with photographs of five other men, and showed Perez the photo array. Perez positively identified appellant as one of the men who robbed and beat him. Grant testified at trial that he had been present during the robbery, and appellant had robbed Perez.

Appointment of an Expert

In points of error one and two, appellant argues the trial court erred when it denied several pretrial motions, including his motion for the appointment of an expert, motion for recovery of expert witness fees, and motion to reconsider motion for the appointment of an expert. Appellant argues an expert was necessary for him to prove his defense that eyewitness identification was unreliable, and, because he was indigent, he was entitled to an appointed expert witness.

In his motion for the appointment of an expert, appellant argued an expert witness was necessary to challenge the State's eyewitness, who would identify appellant as an actor in the offense, because counsel did not possess the knowledge or expertise to address all of the "detailed and technical issues" involved in investigating the case. Specifically, appellant argued the State intended to offer three other robberies for enhancement purposes and expert testimony was necessary to prove that eyewitnesses who had identified appellant were mistaken.

The appointment of an expert witness rests within the sound discretion of the trial court. Stoker v. State, 788 S.W.2d 1, 17 (Tex. Crim. App. 1989), disapproved of on other grounds by Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). We may reverse the trial court's decision for an abuse of discretion only when it appears that the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). Even if we would have reached a different result, we should not intercede as long as the trial court's ruling was within the "zone of reasonable disagreement." Id. at 391.   

In Ake v. Oklahoma, the United States Supreme Court held that, when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. 68, 83, 105 S. Ct. 1087, 1097 (1985). The Texas Court of Criminal Appeals has extended Ake to cases involving various types of experts. See, e.g., Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (pathologist in capital murder case); McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) (chemist in controlled substance case).

In the Jackson decision, the Texas Court of Criminal Appeals addressed the issue of when an expert witnesses had to be appointed for the defendant. Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999). The court held that because the defendant in that case did not make a "preliminary showing of a significant issue of fact on which the State would present expert testimony, and which the knowledge of a lay jury would not be expected to encompass," and because the primary issue in that case was the credibility of the defendant and a police officer, the defendant was not entitled to appointment of an expert witness because the issue of credibility was within the knowledge of a lay jury. Id. at 474. The Jackson court further noted that a trial court does not err in refusing to appoint an expert witness to assist an indigent defendant in rebutting a type of expert opinion that the State's witness did not present. Id. at 474, n.5 (citing Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App. 1998)).  

Here, appellant's motion stated that expert testimony was necessary to rebut the State's eyewitnesses. However, although the State did, in fact, call eyewitnesses to testify appellant perpetrated other offenses, the State did not present any expert testimony regarding eyewitness identification. Here, as in Jackson, appellant did not show that expert testimony would be presented by the State, and has given no compelling reason as to why the credibility of the testifying eyewitnesses is not within the knowledge of the jury. As such, the trial court did not abuse its discretion in denying appellant's motion to appoint an expert regarding eyewitness identification. We overrule points of error one and two.

Limitation of Cross-Examination

In point of error three, appellant argues the trial court erred during the punishment phase of the trial when it did not allow appellant to question a witness about occasions when appellant had previously been misidentified.

The State called Officer Nelson to offer testimony regarding an enhancement offense. Officer Nelson testified she investigated a robbery of a Blockbuster video store on May 8, 2000. She testified she showed Sean Moore, one of the Blockbuster employees, a photo array and a video lineup, and that Moore identified appellant as the robber. ⁽¹⁾ On cross-examination, defense counsel attempted to ask the following questions, all of which related to the robbery of a Pay Less store:

Defense counsel: Okay. In your experience investigating robberies in general, have you been known for [sic] misidentifications to take place? Have you ever experienced that on a somewhat regular basis?

Prosecutor: I object to relevancy as to punishment in this case.

The Court: Sustained.

Defense counsel: Well, Your Honor, the State has made it relevant by attempting to introduce other unadjudicated offenses. This is the only opportunity I have to show that it was not Mr. Moore who took part in that unadjudicated offense.

The Court: Sustained as to that question.

Defense counsel: In the course of your identification - I'm sorry. In the course of your investigation of HPD incident number 41937900Z, that would be case No. 846638 [the robbery of a Pay Less store]-

Prosecutor: Object to relevance of that, Judge.

The parties approached the bench, and continued their discussion:

Defense counsel: This is the case that was dismissed because the defendant was identified. This officer was the investigating officer. The defendant was identified by the complaining witness absolutely conclusively as the actor in that case, but it turned out the defendant was in jail at the time.

Prosecutor: I object to the relevancy.

The Court: Sustained.

Subsequently, defense counsel asked:

Defense counsel: But that is not the first time the defendant has been identified by someone pursuant - for instance, in the Pay Less case -

Prosecutor: Object to relevancy.

The Court: Sustained.

Defense counsel: Has this defendant ever been misidentified?

Prosecutor: Objection, relevancy.

The Court: Sustained.

Appellant contends the trial court erred in not permitting the jury to hear about the previous occasions where appellant had been misidentified.

The Confrontation Clause to the Sixth Amendment affords defendants the right to confront witnesses against them through cross-examination. U.S. Const. amend. VI; Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997). However, the trial court maintains broad discretion to impose reasonable limits on cross-examination. Lagrone, 942 S.W.2d at 613. In particular, a trial court may restrict cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id. The trial court's decision to restrict cross-examination of a witness is not subject to reversal absent a clear abuse of discretion. See Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App. 1997).

Evidence must be relevant to be admissible; evidence that is not relevant is not admissible. Tex. R. Evid. 402. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401.

Ordinarily, evidence of offenses committed by parties other than the defendant is inadmissible because it is irrelevant. Richardson v. State, 744 S.W.2d 65, 80 (Tex. Crim. App. 1987), vacated and remanded on other grounds, 492 U.S. 914 (1989). The evidence is not admissible if it is neither inconsistent with, nor precludes, the defendant's guilt. Id.; Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). In this case, appellant proffered evidence that an eyewitness misidentified him during the investigation of a robbery of a Pay Less store (an extraneous offense the prosecution was not attempting to use for enhancement). Because he was incarcerated at the time of the Pay Less robbery, appellant could not have committed it and the charges related to that offense were dismissed. In this case, however, appellant presented no evidence of an alibi defense to the Blockbuster robbery and there was no evidence that anyone other than appellant committed the robbery. The trial court could have reasonably concluded that the fact appellant was incarcerated and, therefore, could not have committed the Pay Less robbery, even though an eyewitness identified him, was not relevant to whether he was properly identified in the Blockbuster robbery. This is especially true where, as here, appellant offered no evidence that he could not have committed the offense or that someone else did. Therefore, the trial court did not abuse its discretion when it refused to allow appellant to cross-examine Officer Nelson on the topic of appellant's misidentification with respect to the Pay Less robbery.

We overrule point of error three.

Error in the Judgment and Sentence

In point of error four, appellant argues the judgment and sentence do not comport with the jury's verdict. Appellant and the State agree that the jury assessed punishment at 99 years in prison and a $10,000 fine. The judgment and sentence state the sentence was life in prison and a $10,000 fine. Accordingly, we sustain point of error four and modify the judgment and sentence pursuant to Texas Rule of Appellate Procedure 43.2(b) to reflect the correct punishment.

Conclusion  

We affirm the judgment as modified.

Sherry J. Radack

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.4.

1.

Sean Moore and Donald White (the Blockbuster employees who witnessed the robbery) also testified during the punishment phase of appellant's trial. They both testified that appellant approached them and demanded money from the cash registers. Appellant had one hand under his shirt and, because they believed appellant had a weapon, Moore and White gave him the money. The videotape from the Blockbuster surveillance camera that depicted the robbery was also entered into evidence.