Allen, Dennis Lee v. State ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DENNIS LEE ALLEN,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

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No. 08-00-00442-CR Appeal from the 265th District Court of Dallas County, Texas (TC# F-0001305-TR)

O P I N I O N

Dennis Lee Allen appeals his conviction for capital murder with punishment assessed at life in the penitentiary.  We affirm.

Facts

Because appellant Allen challenges the legal and factual sufficiency of the evidence to support his conviction, we will examine the facts adduced at trial in detail.

Jesse Borns was a 70 year old man who owned a leather shop and storefront ministry in Dallas, near the intersection of Martin Luther King Boulevard and Colonial Boulevard.  He was also licensed as an agent to sell pagers and mobile phones.

His wife, Marjorie Borns, testified that on April 6, 1999, Reverend Borns planned to give an evening seminar, and she did not expect him home until late. She spoke with him on the telephone around 5 p.m.  She became concerned when he did not return home that night.  At 6 a.m., she and a neighbor drove to his storefront, found the lights on, the door unlocked, and his van outside.  They found Borns=s body in the storefront.  He had been stabbed numerous times and items had been taken from the shop.

Ms. Borns also testified that her husband had several credit cards.  Lists of his credit cards in his handwriting were admitted in evidence.  None of his credit cards were ever recovered, nor were they found on his body.  Ms. Borns also identified an invoice and tax exemption form from Teletouch beepers, bearing her husband=s signature.  Defense counsel cross-examined Ms. Borns extensively about trouble her husband had experienced many years before with a Baptist congregation.

Mike Epple, an officer with the Dallas Police Department physical evidence section, testified about the crime scene.  Among other things, he identified numerous photographs.  He testified that he was not able to make any identifications through fingerprints.  He testified that because of information received, officers had returned to the scene on July 12, 2000, and searched the building=s roof.  They found a knife, which they photographed then sent to the lab for analysis, but no other useful evidence was found on the weapon.

Judy Hobbs is a resale manager for Teletouch Communications.  She sells air time and pagers to retail resalers.  She identified Jesse Borns as an agent she had enrolled to sell pagers and air time.  She identified State=s Exhibit 67 as a pager she had sold to Mr. Borns on April 6, 1999.  She was contacted by the police regarding the pagers she had sold to Mr. Borns, and she notified the police when someone attempted to activate one of them.

Kenneth Jones owns a pet shop on Colonial Boulevard in Dallas, where he also buys and sells used pagers.  In April 1999, he purchased a pager from a man he identified as the defendant, Dennis Allen.  Allen was with another man, and Jones did not let them into his store because they both looked Ahulled out,@ not an unusual thing in the area.  Jones paid $15 for the pager; he normally pays $10, but this one was new and still in its box.  When Jones attempted to activate the pager, he was visited by the police, who told him its owner had been murdered.  At the time Jones testified, he was on probation in Kaufman County for a drug offense.

Edna Blackman manages a gas station in South Dallas.  She identified a credit card transaction that took place on April 7, 1999 sometime between 4 p.m. and midnight.  The credit card used matched the number on Mr. Borns=s list of credit cards.

Samson Tinsaye works in an EZ Mart convenience store.  At 1:30 a.m. on April 8, 1999, he processed a credit card transaction for $32.09.  The credit card=s last four digits were the same as Borns=s Capital One card.  Tinsaye identified Allen as the person who had used the card, and he had identified him from a photo lineup earlier in the investigation.  Tinsaye=s identification was undermined during defense counsel=s cross- examination, but the prosecutor established that the photo he had identified in July 1999 was Allen.

Alvin DeGrafton-Reid testified that on April 6, 1999, he was working construction at a friend=s beauty salon next door to Reverend Borns=s shop.  He was on the corner around 5 p.m. when he saw a young man came up to Borns and ask for a job.  Borns told him to clean himself up, get off drink and drugs, and come back to see him. The man then got fidgety and agitated. The agitated man was accompanied by another man, whom DeGrafton-Reid identified as Allen.

Charles Manning testified he is a news photographer for NBC.  In April 1999, however, he was a crack addict living on the streets of Dallas, which is how he met Reverend Borns.  He also identified Allen as someone he knew from the streets, where his nickname is AD.A.@ D.A.=s girlfriend is a woman named Felicia, who he also knew from the streets because, A[w]e all hung out in the same area.  We all knew each other because we all used . . . .@  Manning identified Felicia and a AStan@ from their photographs.  D.A., Felicia, and Stan all hung out together in the neighborhood.

Cynthia Sloan testified that she is a prostitute and a crack abuser who spends time hanging out at Martin Luther King Boulevard and Colonial.  At the time of her testimony, she was in jail.  She knows D.A. and Stan Mozee.  She was in a motel room with the two when she heard Allen say to Mozee, AWhy you have to go there?  That shit wasn=t cool.@ Mozee responded by telling D.A. to shut up, Aeverybody business wasn=t nobody business.@ She later learned that Borns had been murdered.  After learning this, she had a conversation with Allen, who told her it wasn=t supposed to have happened like that, but shit went bad.  Allen told her he had tried to stop Stan, but had gotten cut himself. The old man wasn=t supposed to die. Allen also told Sloan they had been watching Borns for a couple of weeks, with the intent of robbing him.

Lionel Hardemon testified that he knew defendant Allen.  On May 28, 1999, they had a conversation in which Allen told him he had done some things and he needed to talk to someone.  Allen told him he had hurt someone and didn=t mean it.  He had stabbed someone and taken money, credit cards, and a pager.  Hardemon has a long history of trouble with the law.

John Paul Robinson testified that he was in jail at the time of his testimony, and had been in jail earlier when he had shared a tank with defendant Allen. He also knew Allen from when Robinson was working at a club on Martin Luther King Boulevard.  In June 1999, he saw Allen at the club and bought from him a cellular telephone, a beeper, and a radio.  The phone was not working, and Allen told him not to take it to anyone he did not trust.  He saw Allen a couple of days later, and asked him about the phone.  Allen told Robinson, Asome stuff had happened real crazy.@ Allen and another man had gone to make some money and things went wrong, the other guy messed up because he was a dope fiend.  They Awent to make a lick@ in other words, commit a robbery.  Because the dope fiend had messed up, someone had been badly hurt. The dope fiend stabbed the robbery victim.  Although Allen and his girlfriend had been outside, they heard screaming, Allen went in, and there he saw the other man stabbing the victim in the upper body.

The next time Robinson saw Allen, they were both in jail.  There, Allen confessed that the things he had described the dope fiend as doing, Allen had actually done himself.  Allen told Robinson he went in alone and demanded the preacher give him his stuff, but the preacher did not seem upset or to take him seriously.  Allen was on drugs at the time. Allen told the preacher if he did not cooperate he would make him feel the blade, so he stuck him once and from there he Ajust went off.@ His girlfriend came in at that point and panicked, which caused the preacher to put up a fight.  They looked around for things to take, and found a phone, beepers, and other items.  The weapon Allen described to Robinson was not knife, but a letter opener or some kind of tool.  Allen threw it on the roof.  Allen also told him he had run into the other man involved, and had persuaded him to write a statement that Allen was not involved.  Allen had also gotten some other inmates to witness the statement and sign statements that the other man had been acting on his own volition.

Detective Rick Berry of the Dallas Police Department homicide unit testified about his investigation of the Jesse Borns murder.  He learned that credit cards, a cellular phone, and a box of pagers were missing.  After following a number of dead-end leads, he was notified that someone had attempted to activate one of the missing pagers.  The pager was recovered from Jones, who identified Allen as the one who had sold it to him.  He also followed up on the credit card transaction at the Shell station and the EZ Mart transaction.  At the time, however, he had no photographs of Dennis Allen to show witnesses, as Allen had not surfaced as a suspect.  After interviewing Charles Manning and Michael Morris, Berry focused his investigation on Stan Mozee and Dennis Allen.  Jones then identified Allen as the man who had sold him the pager. Jones could not identify Mozee. Berry arrested both Allen and Mozee as a result.  He later talked with Lionel Hardemon and John Robinson, both of whom gave information implicating Allen and Mozee as Borns=s killers.

Bill Watson, a forensic scientist with Gene Screen, testified that he had received blood samples from the crime scene and he was unable to make a definitive identification.  He was able to identify Borns=s blood, which was mixed with that of an unknown individual.

The State introduced Stan Mozee=s statement over objection.  It read:

The day before the crime in question, I was approached by Felicia and D.A. about hitting a lick for tomorrow night, and they asked if I would be a watchout for them, and I said, >yes, tell me what it is.=  They said it was to rob the old man next to the beauty shop.  The next day at about 9:30 p.m., we met at the Royal Palace, and we walked up Colonial up to the leather shop next to the beauty shop. D.A. went in first, then me, then Felicia.  D.A. went in the office as me and Felicia watched out from the inside.  D.A asked the Reverend for his wallet, then I heard D.A. say, >where the money?=  The Reverend told him >I don=t have any money.=  That=s when D.A. said, >You got it old man, you keep money.=  D.A. said >you pissing me off.=  That=s when I heard the old man yell >oh.=  D.A. hit him a couple of times.  After I heard the old man yell, that=s when I stepped outside the door.  Then about a minute later, Felicia stepped outside the door.  We could see D.A. dragging the old man towards the back. Then D.A. came outside and we went back to the vacant apartments.  D.A. had a box of beepers and a cellular phone.  D.A. went over to a club to sell the cellular phone, and came back with $50.00. Then he went to score a quarter, and we went to get a two hour room at the Windway.  Then he broke me off half of it and he told me to tear my ass and keep my mouth shut.

Joni McClain is the Dallas County medical examiner.  She testified that she had autopsied Borns=s body, that he had received 47 sharp force wounds, and it was her conclusion that he had died of these multiple sharp force injuries.  She testified that such a large number of wounds indicates a specific intent to kill the victim.

The defense called defendant Dennis Lee Allen.  He testified that he was a crack addict who sometimes lived on the street and sometimes with his mother.  He had cooperated fully with the police when they had questioned him about the murder, volunteering information about a group of young men causing a disturbance in the area that night.  Allen testified he never told anyone he killed Borns.  He had used drugs that day.  He had always been confident about volunteering fingerprint and DNA evidence, as he knew he was innocent.  The defense vigorously cross-examined Berry on a number of topics, including the lack of DNA evidence.

The defense used the prior testimony of Stan Mozee.  Mozee testified a homeless man had told him about Borns being killed.  He found out about the beepers being taken from the shop when he was interviewed by Detective Berry.  The second time Berry interrogated him, he told Mozee that Allen was implicating Mozee in the stabbing.  Mozee was intoxicated at the time, off his medications, and scared of receiving the death penalty.  That is why he gave a statement to Berry implicating himself and Allen.  He had concocted the statement about Felicia and D.A. approaching him to Ahit a lick.@ Likewise, he made up the part about going to the shop, stating, AI only implicated Dennis Allen saying that he stabbed the pastor because I believed what Officer Berry had told me that Dennis Allen said I stabbed the pastor, so I just switched it around.@ Mozee testified he is bipolar, and at the time he made the statement, he had been off his medication.

Ray Junior Turner and Tyrone Lamont Parnell both testified they had been in jail in the same tank with Mozee and Allen when Mozee wrote out his statement that he had made up the story about he and Allen killing Borns.  They both signed statements witnessing Mozee=s retraction.

Legal and factual sufficiency of the evidence

In his first issue on appeal, Allen challenges the factual sufficiency of the evidence to show that he caused Jesse Borns=s death.  In his second issue on appeal, he challenges the legal sufficiency of the evidence to show that, alone or as part of a conspiracy, he caused the death.  As these claims both entail a review of the evidence, we address them together.

Standards of review

We review factual sufficiency of the evidence to support a verdict by viewing all the evidence in a neutral light, reversing only if the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim.  App. 1996); Drost v. State, 47 S.W.3d 41, 45 (Tex. App.--El Paso 2001, pet. ref=d). In conducting a factual sufficiency review, we do not substitute our conclusions for those of the fact finder. Duffy v. State, 33 S.W.3d 17, 22 (Tex. App.--El Paso 2000, no pet.).  It is not within our province to interfere with the fact finder=s resolution of conflicts in the evidence or generally to pass on the weight or credibility of a witness=s testimony.  Id.

Only those few matters bearing on credibility that can be fully determined from a cold appellate record may be reviewed.  Johnson, 23 S.W.3d at 8.  However, unless the record clearly reveals a different result is appropriate, we must defer to the jury=s determination concerning the weight given to contradictory testimonial evidence. Id.  We have authority to disagree with the fact finder=s determination only when the record clearly indicates such a step is necessary to prevent manifest injustice.  Johnson, 23 S.W.3d at 9.

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we view all the evidence presented by both the prosecution and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Duffy, 33 S.W.3d at 22.  We do not resolve any conflict of fact or assign credibility to the witnesses.  Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Duffy, 33 S.W.3d at 22.  All inconsistencies in the evidence are resolved in favor of the verdict.  Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Duffy, 33 S.W.3d at 22.

Sufficiency of the evidence to show Allen caused Borns=s death

In claiming factual insufficiency, Allen relies upon the scientific evidence, specifically the lack of any DNA or fingerprint evidence linking him to the scene of Reverend Borns=s death, and evidence that the blood analysis indicated a mixture of Borns=s blood with another unknown human, not Allen.  The case against Allen, however, was not built on DNA or fingerprint evidence.  Rather, the evidence supporting  Allen=s conviction consisted of the sale of Borns=s pager, cellular phone, beeper, and use of his credit cards, all of which were linked to Allen.  Additionally, a witness identified Allen as having been with another man who had behaved aggressively toward Borns shortly before his killing.  Other witnesses testified that Allen told them about a robbery he was involved in that had gone bad, that Athe old man wasn=t supposed to die,@ that he had obtained the phone in a robbery where someone had been stabbed, that Allen himself had done the stabbing, and that he had thrown the stabbing implement on the roof.  A knife was later recovered from the roof of Reverend Borns=s building.  In this case, we cannot say that proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or that proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Allen=s first issue is overruled.

Similarly, in complaining of legal insufficiency, Allen cites the lack of scientific evidence, the presence of an unknown individual=s blood mixed with Borns=s, and Detective Berry=s alleged coersion in obtaining Mozee=s statement incriminating Allen.  We conclude that a rational trier of fact could easily find beyond a reasonable doubt that Allen had committed the offense of capital murder.  Allen=s second issue on appeal is overruled.

Ineffective assistance of counsel

In his third issue on appeal, Allen urges that trial counsel was ineffective because he failed to interview, subpoena, and call certain witnesses.

Standard of review

In reviewing claims of ineffective assistance of counsel, we adhere to the test set out in Strickland v. Washington, 466 U.S. 668, 687-93, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674 (1984).  This requires a twofold showing:  (1) that counsel=s representation  fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. Reasonable probability is a likelihood sufficient to undermine our confidence in the outcome.  Id.  This does not mean the defendant is entitled to errorless representation, but rather that counsel must provide reasonably effective assistance.  Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).  We examine the totality of representation as opposed to focusing upon isolated acts or omissions.  Ineffective assistance of counsel cannot be established by isolating or separating out one portion of trial counsel=s performance for examination.  Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).  We do not engage in hindsighted comparisons of how other counsel, in particular appellate counsel, might have tried the case.  Bradley v. State, 960 S.W.2d 791, 803 (Tex. App.--El Paso 1997, pet. ref=d). We indulge a strong presumption that counsel=s conduct falls within the wide range of reasonably professional assistance. Defendant must overcome the presumption that under the circumstances, the challenged action could be considered sound trial strategy.  Allegations of ineffective assistance of counsel must be firmly founded in the record. Id. at 804.

Failure to interview and subpoena witnesses

Here, Allen complains of trial counsel=s failure to interview, subpoena, or call as witnesses two individuals: Derrick Lewis and Audric Gibson. Lewis was a suspect early in the investigation, who was implicated in the crime by Gibson.  These details of the investigation were related to the jury by Detective Berry, as well as the reason he eliminated Lewis as a suspect: A[W]hat I found out in the course of that investigation was that Derrick Lewis was currently dating Audric Gibson=s former girlfriend.  Found many reports where he violated the protective orders, things like that against his girlfriend.  And this was a clear case of he was trying to get her current boyfriend Derrick Lewis in trouble.@

Lewis was one of several persons who were investigated by Detective Berry before he focused upon Allen and Mozee as suspects.  Allen does not explain how Lewis=s testimony would have cast doubt upon the case against Allen, nor does his assertion that trial counsel failed to investigate or interview Lewis or Gibson find any support in the record, which is silent on this issue.  Allen presents nothing to overcome our presumption that the decision not to call Lewis or Gibson was sound trial strategy. Moreover, counsel cross-examined Detective Berry on his failure to obtain and compare Lewis=s blood with evidence found at the crime scene. During his thorough cross-examination of the detective, counsel had the officer write out for the jury all the things he did not do in investigating potential suspects other than Allen.  We have reviewed the record as a whole and conclude trial counsel=s representation fell well within the objective standard of reasonableness required by Strickland.  Counsel engaged the State=s witnesses in vigorous cross-examination, he effectively challenged shaky witness identification, he displayed a good grasp of the facts and law, he objected appropriately and preserved error properly.  We find nothing to support Allen=s claim of ineffective assistance.  His third issue on appeal is overruled.

Admitting the codefendant=s confession

In his fourth issue on appeal, Allen contends that the trial court erred in admitting the statement of his codefendant, Stan Mozee.

Standard of review

We review questions involving admission of evidence under the abuse of discretion standard.  Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Smith v. State, 12 S.W.3d 149, 150 (Tex. App.--El Paso 2000, pet. ref=d).  We will not reverse a trial judge whose ruling was within the zone of reasonable disagreement.  Green, 934 S.W.2d at 102.

Mozee=s statement

Allen=s codefendant Mozee made a detailed statement to Detective Berry about the circumstances of Borns=s killing.  Although an out-of-court statement by a codefendant is hearsay, it is admissible as a statement against interest when:

A statement which was at the time of its making so far contrary to the declarant=s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant=s position would not have made the statement unless believing it to be true.  In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.  Tex. R. Evid. 803(24).

Even where a narrative is generally self-inculpatory, however, the hearsay exception does not extend to statements contained within it that are not self-inculpatory.  Miles v. State, 918 S.W.2d 511, 515 (Tex. Crim. App. 1996) (quoting Williamson v. United States, 512 U.S. 594, 600-01, 114 S. Ct. 2431, 2435, 129 L. Ed. 2d 476 (1994)); Zarychta v. State, 961 S.W.2d 455, 458 (Tex. App.--Houston [1st Dist.] 1997, pet. ref=d).  The confession of a codefendant may be admissible if it is truly self-inculpatory, rather than merely an attempt to shift blame or curry favor with authorities.  Zarychta, 961 S.W.2d 458.  Whether a statement is self-inculpatory can only be determined by viewing it in context. Id. (quoting Lee v. Illinois, 476 U.S. 530, 545, 106 S. Ct. 2056, 2064, 90 L. Ed. 2d 514 (1986)).  A codefendant=s confession is presumptively unreliable as to those portions which detail a codefendant=s conduct or culpability because those portions may be the result of a desire to shift blame, curry favor, get revenge, or divert attention.  Id. at 458-59.  A codefendant=s statements about this defendant are less credible than ordinary hearsay evidence. Id.  Nevertheless, such hearsay statements may be admissible if sufficient corroborating facts assure that it is not a fabrication.  Cofield v. State, 891 S.W.2d 952, 955-56 (Tex. Crim. App. 1994); Holiday v. State, 14 S.W.3d 784, 787 (Tex. App.--Houston [1st Dist.] 2000, pet. ref=d). Factors which may constitute sufficient corroboration include whether:  (1) the guilt of the declarant is inconsistent with guilt of the accused; (2) the declarant may have committed the crime; (3) the time and spontaneity of the statement; (4) the party to whom the declaration was made; and (5) the independent, corroborating facts.  Holiday, 14 S.W.3d at 787.

Rather than contending the statement meets reliability requirements sufficient to exempt it from the hearsay rule, the State contends instead that Mozee=s statement was properly admitted, not for the truth of the statements contained in it, but as rebuttal to defense counsel=s cross-examination concerning Detective Berry=s investigation of the crime. The problem with this theory is that nothing in the record supports it.  The statement was admitted during the State=s case-in-chief, during redirect examination of Detective Berry.  The prosecutor asked Berry why he had eliminated various other individuals as suspects, AWhat information did you have to prove that?@ The detective responded he had, A[t]he information that proved that Dennis Allen and Stan Mozee were the suspects in this case.@ The prosecutor then detailed the course of Berry=s investigation of Allen, leading to the following exchange:

Q:        Did you also talk to and interview Stan Mozee?

A:        Yes, I did.

.   .   .

Q:        Sir, I=m going to hand you a two-page statement marked State=s Exhibit No. 112. Do you recognize that?

A:        Yes, I do.

Q:        What is it?

A:        This is a voluntary statement that Stan Mozee gave regarding his participation and Dennis Allen=s in this offense.

Defense Counsel:  Okay.  And Your Honor, once again we=ll object to that based on the fact that it denies us the right to confront and cross-examine any witnesses concerning this statement, it is hearsay, and it=s inadmissible against my client.

The Court:  Overrule the objections.

Q:        Is this a copy of that statement?

A:        Yes, it is.

Q:        True and accurate copy?

A:        Yes, it is.

Prosecutor:  Your Honor, at this time I=ll offer State=s Exhibit No. 112 into evidence, and tender to opposing counsel.

Defense Counsel:  We object for all the same purposes, Your Honor.

The Court:  I=ll have to overrule your objection.  It will be admitted.

Shortly thereafter, Detective Berry read Mozee=s entire statement to the jury.  This all occurred before the defense presented any evidence.  Nothing in the record indicates the State was proffering the statement for anything other than its truth, and Berry=s statement that his information proved that Allen and Mozee were the perpetrators underscores the point.  The State referred to the statement during closing argument as evidence of Allen=s guilt.  We cannot accept the State=s contention that Mozee=s statement was not hearsay because it was admitted only to rebut cross-examination about the thoroughness of Detective Berry=s investigation.  We therefore must determine:  (1) whether Mozee=s statement is self-inculpatory and therefore reliable for that reason; and (2) whether it is sufficiently corroborated to otherwise indicate reliability.

Examining Mozee=s statement, we first acknowledge that little in it is self-inculpatory; rather, its apparent purpose was to shift as much blame as possible to Allen. According to Mozee, it was Allen who recruited him to Ahit a lick,@ it was Allen who entered the store, demanded money, lost his temper, stabbed the victim, dragged the body to the back, stole the phones and beepers, sold the stolen property, and used the ill-gotten money to buy drugs.  In Mozee=s statement, he did nothing but serve as Awatchout@ and accept some drugs that were purchased with money obtained from the robbery. This is exactly the type of statement that we are instructed to treat most warily, as we must assume it is made with self-serving motives and is the least reliable kind of hearsay.

We next examine the Cofield factors for determining reliability. First, although Allen=s culpability as the one who actually stabbed Borns is inconsistent with Mozee being the stabber, their mutual guilt in these circumstances is not inconsistent. Whether Mozee may have known this or not, however, is not contained in the record.  This factor might help establish corroboration, but not strongly. Second, Mozee may have been the one who stabbed Borns, so this factor cannot support corroboration.  Third, the time and spontaneity of the statement and the party to whom it was made do not support corroboration.  The statement was made long after the offense, to a police detective, as the result of an interrogation.  Fourth, in contrast, Mozee=s statement finds almost complete corroboration in Robinson=s and Sloan=s testimony regarding Allen=s statements to each of them, on independent occasions, about what had happened during the robbery.   Finally, we must note that while Mozee was never present for purposes of confrontation and cross-examination at this trial, the defense had the opportunity to present extensive testimony from him in which he explained and recanted the statements at issue.

Considering the highly self-serving content of Mozee=s statement, together with the time and circumstances of its making, we cannot say that other corroborative factors are sufficient to make it reliable.  We therefore conclude that the trial court erred in admitting Stan Mozee=s hearsay statement, and proceed to a harm analysis.

Harm

Under Tex. R. App. P. 44.2, we cannot reverse a criminal case without finding harm.  If the error is of constitutional dimension, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction.  Tex. R. App. P. 44.2(a). Otherwise, we reverse only if the error affected defendant=s substantial rights.  Tex. R. App. P. 44.2(b).  Allen=s objection here is to the admission of hearsay evidence, and he makes no claim of constitutional error.  We therefore apply a Rule 44.2(b) harm analysis.  Under Rule 44.2(b), we will not overturn a criminal conviction if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but slight effect.  Muhammad v. State, 46 S.W.3d 493, 509 (Tex. App.--El Paso 2001, no pet.).  Using this standard, the burden is on the defendant to show actual harm.  Sanford v. State, 21 S.W.3d 337, 345 (Tex. App.--El Paso 2000, no pet.).

Viewing the record as a whole, we conclude that the trial court=s erroneous admission of Mozee=s statement did not influence the jury, or had but slight effect.  We are led to this decision by the following considerations.  First, Mozee=s statement was cumulative of evidence given by Robinson and Sloan, both of whom testified that Allen gave a version of events similar to that contained in Mozee=s statement.  Second, after the State presented Mozee=s statement to the jury, the defense presented Mozee=s entire testimony from his own trial, in which he recanted his statement, explained that he gave it in an effort to please Detective Berry and thus avoid Athe needle,@ that he was off his medications for bipolar disorder when he gave the statement, and that he only implicated Allen because Berry lied to him by saying Allen had implicated Mozee. Thus, the defense was not hindered in presenting its position on Mozee=s truthfulness and motivations to the jury.  For these reasons, although we conclude admitting the hearsay statement was error, we also conclude it did not affect substantial rights.  Allen=s fourth issue on appeal is overruled.

Sustaining the State=s objection that argument was outside the record

In his fifth issue on appeal, Allen claims the trial court erred in sustaining an objection to defense counsel=s jury argument that his client had consistently maintained his innocence, and that the physical tests would show it.  The State objected that this was outside the record, and the trial court agreed.

Proper jury argument is that which may be characterized as:  (1) a summary of the evidence; (2) reasonable deductions from the evidence; (3) a response to argument of opposing counsel; or (4) a plea for law enforcement.  Calderon v. State, 847 S.W.2d 377, 382-83 (Tex. App.--El Paso 1993, pet. ref=d). The issue here is unusual in that Allen=s claim is not that the prosecutor made improper argument, but rather that the court improperly sustained an objection to proper argument by defense counsel.  Generally, the standard for reversing for improper argument is whether it was extreme, improper, violative of a mandatory statute, or injected harmful new facts.  Id. at 383.  Similarly, if the trial court erroneously excluded proper argument that effectively prevented the defense from presenting its theory of the case to the jury, we think reversal appropriate.

Defense argument

At the end of his presentation to the jury, defense counsel argued:

Defense Counsel:  Not one thing fits in this case, folks.  Because you know why?  This man right here has sat in jail from I don=t think how long innocent.  And he=s sat there and he=s told [his] lawyer well, what about physical testings?  The fingerprints should show it.  Doesn=t it, Mr. Oatman?  Doesn=t it show I=m not guilty?

Prosecutor:  Your Honor, I=m going to object.   This is outside the record.

The Court:  Sustain the objection.

Prosecutor:  Ask counsel to refrain.

The Court:  Please remain within the record.

In contending this argument was supported by the evidence, Allen points to his own testimony, where he related that he had been telling his counsel from the beginning that he had not done this, that he had assured counsel the DNA analysis would be in his favor, that he had never been in Borns=s place of business, and AI knew that any fingerprints or blood or anything, nothing would match me because I=d never been there.  I had nothing to do with it.@ Based on this testimony, we believe counsel was within the realm of permissible argument and the trial court erred in sustaining the prosecutor=s objection.

Harm

Once again, we engage in a Rule 44.2(b) substantial rights analysis.  We cannot see how this isolated incident harmed Allen, and he points us to no specific harm.   The ruling did not prevent Allen=s counsel from thoroughly discussing the defense theory of the case with the jury. He discussed the dubious motives of the State=s witnesses and the lack of any physical evidence connecting Allen to the crime scene, in detail and without objection.  For example:

You=re not going to hear anything of physical evidence from here.  You=re not going to hear anything about the physical evidence from [the prosecutor] other than it doesn=t matter because you don=t have it.  You got fingerprints that belong to other people at that crime scene, you=ve got DNA mixed in with that Reverend=s blood that belonged to other people at that crime scene. 

And:

What about that APIS computer?  Well, we did it.  Well, can you show me the report where you did it?  The national data base where you can put fingerprints in and get them back if they match anybody?  Well, we did it.  Show me the report.  I don=t have it.  Are you sure you did it?  Well, I think we did it.

What if old John Robinson=s fingerprint had popped out of that?  Then he=d been stuck saying well, yeah, I guess I was down there visiting the Reverend, buying me a wallet a few days before that, but I didn=t have anything to do with it.  They don=t want to look at the physical evidence.  They didn=t look [at] the physical evidence.  The physical evidence that=s here, they=ve tried to minimize. 

And:

Ask yourself, go back there and look at it, if this is the key to the case, why didn=t they have some forensic testimony, laser analysis, chemical analysis, fingerprint powder? Are you going to take their word, oh, it just wasn=t worth it?  We couldn=t get anything.

And:

What about DNA analysis?  Doesn=t that show? Well, I hope it does because I=ve fought as hard as I can for four days for this man.  And when I sit down I can=t fight any more for him.  And I can tell you one thing.  He is innocent. 

Defense counsel had ample opportunity to argue his case to the jury, both before and after this single ruling he complains of on appeal.  We do not believe a substantial right was affected.  Issue Five is overruled.

Evidence that codefendant had been convicted of capital murder

In his sixth and final issue for review, Allen urges that the trial court erred in overruling his objection to evidence that Mozee had been found guilty of capital murder.  The State responds that Allen failed to preserve error, or alternatively, that any error was harmless.

The exchange in question occurred during the redirect examination of Detective Berry:

Q:        Okay.  And as far as Mr. Mozee, whether or not he recanted it or didn=t believe it [his statement].  Mr. Mozee went to trial already, didn=t he?

A:        Yes, he did.

Q:        He was found guilty of capital murder, wasn=t he?

A:        That=s correct.

Q:        Nothing further.

Defense Counsel:  Your Honor, I=m going to object to that last question and answer.

The Court:  Overrule the objection.

Waiver

We first address the State=s contention that Allen has failed to preserve error on this point.  To preserve error for appellate review, the complaining party must make a timely, specific objection.  Lozano v. State, 958 S.W.2d 925, 930 (Tex. App.--El Paso 1997, no pet.).  The objection must state the ground for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context.  Id.

Here, Allen=s counsel never stated any ground for objection, and we do not see that any ground was apparent from its context.  Thus, we agree with the State that the error was waived.  Allen=s sixth issue on appeal is overruled.

Conclusion

We affirm the trial court=s judgment.

SUSAN LARSEN, Justice

July 11, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

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