Robert Wayne Blevins v. State ( 2005 )

  Opinion issued August 11, 2005

  In The

Court of Appeals

For The

First District of Texas

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  NOS. 01-03-01157-CR

          01-03-01158-CR

          01-03-01159-CR

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ROBERT WAYNE BLEVINS, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause Nos. 41,486; 41,487; and 41,488

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MEMORANDUM OPINION  

          In cause number 41,486, a jury found appellant, Robert Wayne Blevins, guilty of aggravated robbery, found appellant used a deadly weapon in the commission of the offense, and sentenced him to 25 years’ imprisonment. In cause number 41,487, the jury found appellant guilty of aggravated sexual assault, found appellant used a deadly weapon in the commission of the offense, and sentenced him to 60 years’ imprisonment. In cause number 41,488, the jury found appellant guilty of aggravated kidnapping, found that appellant used a deadly weapon in the commission of the offense, and sentenced him to 50 years’ imprisonment.

          Appellant argues that the evidence was legally insufficient to sustain the conviction for aggravated robbery because the State failed to prove that the knife alleged in the indictment was a deadly weapon and that appellant used and exhibited a deadly weapon. For all three convictions, appellant argues that the evidence was legally insufficient to sustain the jury’s affirmative deadly weapon finding and that the knife appellant allegedly used was a deadly weapon. Appellant, who raised an insanity defense, also contends that the trial court erred in excluding lay testimony regarding appellant’s mental state prior to the commission of the offense. Finally, appellant argues that the trial court erred in admitting hearsay testimony that denied appellant his right to confront the witnesses. We affirm.  

Background

          William Budd testified that, during the early morning hours of September 22, 2001, he entered a “Buc-ee’s” convenience store. Budd selected some items, but became suspicious when he was unable to find a store clerk. Budd asked another patron to notify the police.

          Officer W. Cornwell, a police officer for the City of Brazoria, testified that, upon arriving at the store, he spoke with Budd and searched the store and the surrounding area. When he could not find the store’s clerk, Cornwell requested dispatch contact the Buc-ee’s store manager.

          The manager arrived and removed the surveillance tape to determine when the clerk, the complainant, was last in the store. As the tape was rewinding, the manager and Cornwell discovered that all of the cash was missing from the register. The surveillance tape revealed a man entered the store and demanded that the complainant give him all of the money in the register. After she placed the money in a bag, the man forced the complainant to leave the store with him.

          Cornwell was contacted by the West Columbia Police Department who advised him that an automobile accident recently occurred on the highway alongside the Buc-ee’s and that the female found inside the car said that she was abducted from the Buc-ee’s. Officer C. Mills, a patrol sergeant for the West Columbia Police Department, testified that, when he arrived at the scene of the accident, he saw a truck which had driven off the road and landed on its side. Inside the truck, Mills saw the complainant, who was naked and had blood on her face and hands. The complainant told Mills that she had been kidnapped and that her kidnapper was hiding behind a nearby barn. Mills searched the area and found the complainant’s clothes. The officers found appellant and brought him to the complainant who identified him as her kidnapper.

          Officer L. Odom, a patrolman for the Sweeny Police Department, testified that, when he arrived, the other officers had already located appellant and were in the process of handcuffing him when Odom saw a “utility knife” fall out of appellant’s pocket.

          Investigator Epps testified that the complainant told him that appellant entered the store and initially asked for a pack of cigarettes, but then demanded that the complainant give him all of the money in the register. After he got the money, appellant told the complainant to leave the store with him and to get into his truck. While in the truck, appellant ordered the complainant to remove all of her clothes. Appellant then forced the complainant to perform oral sex on him. The complainant said that, while in the truck, she felt a knife pressed against the back of her neck and later against her back. Appellant told the complainant that he was crazy and, if she did not do what he said, he would kill her. The complainant then forcefully pulled the steering wheel, causing the truck to drive off the highway and crash.

          The complainant testified that, during his robbery of Buc-ee’s, appellant threatened to shoot her if she did not follow his orders. While he never brandished a firearm, the complainant saw “something shiny” underneath appellant’s arm, and she believed that it was a gun. Appellant told the complainant to leave the store with him and get into his truck. While leaving the store, appellant wrapped his arm around the complainant’s neck and placed a knife against her throat. He said, “Just do what I say and I won’t kill you.”

          Once inside the truck, appellant told the complainant to remove all of her clothes. Appellant placed a knife against the complainant’s back and forced her to perform oral sex on him. Appellant threatened to kill the complainant if she did not “do a good job.” When asked if appellant ever explained why he was taking her to a secluded area, the complainant responded, “He said that he was going to cut me in little pieces.” The complainant’s next recollection was pulling the truck’s steering wheel, causing the truck to crash, and then blacking out. Upon regaining consciousness, the complainant remembered appellant yelling at her and ordering that she flee the scene with him. The complainant, injured and disoriented, did not comply. Appellant then took the complainant’s clothes and ran away, leaving the complainant in the truck. The complainant testified that, although she felt the knife on her neck and back, she never actually saw the weapon.

          Pamela Blevins, appellant’s sister, testified that, before his arrest, appellant told her that he was “having strange thoughts” and he was not receiving proper medical attention from his physician. Blevins recalled an incident when appellant came home in the middle of the night covered in blood, but he was unable to remember what had happened to him. She also recalled witnessing appellant attempt suicide. Blevins stated that appellant endured a severe back injury while performing construction work in 1993. As a result, appellant underwent several surgeries, was placed on medication, and has been under the care of doctors ever since.

          Linda Smith, a mental health liaison for the Gulf Coast Center, testified that she interviewed appellant after his arrest. During the interview, appellant was unable to identify where he was or what day it was. Appellant told Smith that he had a desire to hurt himself.

          Audrey Philpot, appellant’s mother, testified that appellant could not afford his prescribed medication and, as a result, would “stretch” his medication by reducing his dosage. During visits in jail with him after his arrest, Philpot stated that appellant would hallucinate.

          Dr. Milton Williams, a psychiatrist, examined appellant after he was arrested and testified that appellant told him that he had experienced hallucinations in the form of voices telling him to harm himself or to run away. However, Williams concluded that, on the day of his arrest, appellant was not insane.

          Mark Blevins, appellant’s brother, testified that, when he visited appellant in jail, appellant did not know that he was in jail, but thought that he was in the hospital. Mark also testified that, before his arrest, appellant was shocked while performing electrical work on a trailer.

          Dr. Michael Fuller, a psychiatrist for the Brazoria County jail, examined appellant and testified that appellant was currently being prescribed anti-psychotics, anti-depressants, anti-anxiety, and pain medications. Fuller diagnosed appellant as suffering from bi-polar disorder.

          Dr. Edward Friedman, a psychologist employed by Harris County, testified that appellant was competent to stand trial. Friedman stated that, during his evaluation of him, appellant presented inconsistent accounts of whether or not he was taking the proper dosage of his medication prior to his arrest. Further, Friedman determined that he was not presented with any evidence which would lead him to conclude that appellant was insane at the time of his arrest.

           Deadly Weapon

          In points of error one and two, appellant argues that the evidence was legally insufficient to sustain the conviction for aggravated robbery because the State failed to prove that the knife referenced in the indictment was a deadly weapon and because the State failed to prove that appellant used and exhibited a deadly weapon. In points of error three and four, appellant argues that, for all three convictions, the evidence was legally insufficient to sustain the jury’s affirmative deadly weapon finding and that the knife appellant allegedly used was a “deadly weapon.”

          In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

          Appellant threatened to cut the complainant into small pieces, and the complainant felt a sharp object on her back and neck. Officer Odom testified that he saw a “utility knife” fall out of appellant’s pocket when he was arrested. On appeal, appellant contends that, because the victim never saw the knife, the knife was not a deadly weapon. There is both direct and circumstantial evidence that would allow a reasonable fact finder to conclude that the knife found on appellant was used as a deadly weapon in a threatening manner. When an object is used to threaten deadly force, it is a deadly weapon. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).

          In McCain, the victim never saw the knife, she only saw a long dark object, which she believed to be a knife, and was afraid of being cut. Id. at 499. This was sufficient evidence to support a finding that the knife was a deadly weapon due to “its use or intended use.” Id. Even though McCain did not brandish, refer to, or even openly display the knife, the court held that he “did use and exhibit a deadly weapon to wit: a knife.” Id. Here, because the complainant felt the knife pressed against her and because appellant threatened to cut her “in little pieces,” there is legally sufficient evidence to support the finding that appellant’s knife was a deadly weapon.

          Accordingly, we overrule points of error one, two, three, and four.

Admission and Exclusion of Evidence

          In point of error five, appellant argues that the trial court erred in excluding lay testimony concerning appellant’s mental state before the commission of the offense. In points of error six and seven, appellant argues that the trial court erred in admitting hearsay testimony that denied him his right to confront his witnesses.

          We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996). Where the trial court’s evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the reviewing court must uphold the trial court’s ruling. Id. at 102. Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked. Tex. R. Evid. 103(a)(2). The erroneous admission or   exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See Tex. R. App. P. 44.2(b); Alexander v. State, 137 S.W.3d 127, 130 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury’s verdict.   King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)  .

Mental State

          In point of error five, appellant argues that, during the guilt stage of trial, the trial court erred in sustaining the State’s objection to lay testimony concerning appellant’s mental state prior to the commission of the offense.

          A witness who is not testifying as an expert must give testimony in the form of opinions or inferences limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Tex. R. Evid. 701. The requirement that an opinion be rationally based on the perception of the witness is itself composed of two parts: (1) the witness must establish personal knowledge of the events from which his opinion is drawn and (2) the opinion drawn must be rationally based on that knowledge. Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Ultimately, whether an opinion meets the fundamental requirements of rule 701 is within the sound discretion of the trial court, and the trial court’s decision regarding admissibility should be overturned only if the trial court abuses its discretion. Id. at 901.           Pamela Blevins, appellant’s sister, testified that, in September 2001, prior to his arrest, appellant told her that he was having strange thoughts, hearing strange things, and needed some help. She testified that he was not receiving proper medical care and had attempted suicide. After describing appellant’s apparent hallucinations in jail after his arrest in this case, the following exchange occurred:

[Defense] Now, would you state whether or not, based on your observations, [appellant] became more paranoid and suspicious of other people?

[State] Objection, your Honor. The witness is not qualified.

[Court]Sustained.

[Defense] Based on what [appellant] told you and his demeanor and actions, is there anything that would indicate that he’s become more paranoid and suspicious since he’s been taking his medications?

[State] Objection, your Honor, as to what the witness’ qualifications are.

[Court] Sustained.

[Defense] Can I get a clarification, your honor?

[Court] Yes, sir. Witness hasn’t been qualified with regard to any medical opinions, and what you’re asking for would result in her giving an opinion as to his paranoia.

[Defense] My question was meant to just her observations of what he appeared to be and things he was saying, not her opinion.

[Court] That wasn’t what you asked. You couched it in terms of his paranoia and fear of other people, and that would call for a medical opinion and an expert opinion. So, I’m not going to permit it.

[Defense] Based on your observations of [appellant], of his demeanor and appearance and what he said, has anything, based on those observations, made you believe he was more suspicious of others?

[State] Object to leading.

[Court] Sustained. That’s pretty much the same question. This is a fact witness.

[Defense] What observations have you seen of [appellant] since 1998?

[Blevins] That he was in need of supervision and medical care –

[Court] Hold it. Hold it. Ladies and gentlemen, please go to the jury room.

(The jury left the courtroom.)

[Court] You can’t tell us what you think insofar as his need for supervision because you’ve not been qualified as anyone who has the expertise such that you could.

[Blevins] Would I be allowed to say that he believed that he was not receiving –

[Court] That’s mere speculation.

[Blevins] Well, he told me that.

[Court] You can testify as to what you saw.

After this exchange, the defense counsel conducted a voir dire examination of Blevins, which the trial court agreed could be used for bill of exception purposes. During the bill, Blevins testified that she observed appellant during his apparent mental breakdown in 1998—three years before his abduction of the complainant. She testified that she had observed appellant in chronic and severe pain for years, and, “if he didn’t have his medications, he couldn’t get out of bed. He had a hard time functioning.”  

          At the conclusion of the bill, the State objected, stating that Blevins’s testimony was irrelevant. The State argued that “Any physical testimony about his physical – not being able to get out of bed, not being able to work, State’s going to object to relevancy, back in 1998, how that’s relevant to 2001 and his mental health of 2001. State’s not sure.” The trial court sustained the objection, and Blevins was excused without cross-examination.

          On appeal, appellant argues that this “lay testimony was a precursor to the expert testimony of the psychiatrists called” to support appellant’s insanity defense. Appellant further argues that the bill clearly “established first hand knowledge” and the “record show[s] that she could rationally base her opinion on her perception of Appellant’s words and actions.” He contends that the testimony was offered to “show his mental state prior to the alleged offenses and that his mental condition was not a recent occurrence developed solely to defend against these accusations as the State argued in final argument.”

          It is unclear from the record what testimony appellant was attempting to introduce through Blevins’s bill of exception. In his brief, he discusses various definitions of “paranoia” and whether a lay person can testify to such. However, during his bill in the trial court, he did not question Blevins regarding her brother’s alleged paranoia around the time of the offenses in this case. Appellant must preserve error by showing what the witness’s response would have been. Garza v. State, 846 S.W.2d 936, 939 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Accordingly, appellant has failed to preserve error. See Tex. R. App. P. 33.1.

          We overrule point of error five.

Hearsay and Confrontation Clause

          In points of error six and seven, appellant contends that, during the punishment hearing, the trial court erred in admitting an exhibit containing a motion to adjudicate guilt for the offense of carrying a weapon on a liquor-license premises. Appellant argues that this was error because (1) it was hearsay and (2) he was denied the right to confront his accuser.

          When the State attempted to introduce the exhibit containing the still-pending motion to adjudicate, appellant objected as follows:

I do object to [the exhibit], your Honor, for the following reasons. It includes hearsay on top of hearsay. It also denies the defendant the right to confront the witness who made the allegations or statements in the motion under the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution; and if the Court admits it, we would like an appropriate limiting instruction.

The trial court denied the objection, but instructed the jury as follows:

You are instructed that there is evidence before you . . . in this case regarding the defendant having committed offenses which have not resulted in final dispositions in a court of law.

You cannot consider this testimony or this exhibit for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any is alleged to have been committed.

Again, you will receive the same instruction that any proof by the State and any proof is to be proof beyond a reasonable doubt, and you must find beyond a reasonable doubt that those allegations are true before you can consider them in this phase of the trial.

Following the instruction, the trial court admitted the exhibit, and the State questioned probation officer, Joneska Horn, regarding appellant’s marijuana use and his failure to pay the laboratory processing fees as alleged in the State’s motion to adjudicate. Horn read to the jury, without objection, each of the conditions alleged to have been violated as set out in the objected-to exhibit. She testified, without objection, that appellant violated the terms of his probation by (1) committing the offense against the complainant in this case, (2) using a controlled substance as was evidenced by the presence of marijuana metabolite in his urine, (3) failing to report for six months, (4) failing to maintain employment, and (5) failing to perform any of his required community service.

          Appellant waived any error by failing to object to Horn’s testimony. If a defendant objects to admission of evidence, but the same evidence is introduced from another source without objection, the defendant waives his earlier objection. Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996).

          Accordingly, we overrule points of error six and seven.

Conclusion

          We affirm the judgments of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).