Robert Steven McClendon v. State ( 2007 )

Affirmed and Memorandum Opinion filed November 29, 2007

Affirmed and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00997-CR

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ROBERT STEVEN McCLENDON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1040756

M E M O R A N D U M   O P I N I O N

Appellant, Robert McClendon, was convicted of aggravated assault by a jury and sentenced to five years in prison.  Appellant=s prison sentence was probated for five years.  In two points of error, appellant contends that the trial court improperly (1) denied his right to confrontation and cross-examination when it did not allow him to cross-examine witnesses regarding their motive, and (2) allowed the State to make a comment on appellant=s post-arrest silence.  We affirm.

I. BACKGROUND

Complainant, Paula Trent, her mother, Christine Trent, and her sister lived with appellant for over thirteen years.  Appellant and complainant had a father-daughter relationship.  On September 15, 2005, appellant, Christine, and complainant went on Achurch runs@ together to pick up food from grocery stores and to deliver it to their church.  Appellant=s account of events drastically differ from those of complainant and Christine. 

At trial, complainant and Christine testified that appellant became upset with Christine on the day in question because Christine was running late.  When the three returned home after the church runs, appellant took soma, vicodin, and hydrocodone and drank three glasses of vodka and V-8.^[1] According to complainant and Christine, appellant was noticeably intoxicated. Appellant then told complainant that he wanted her to leave their house. Complainant testified that when she attempted to leave with her personal belongings, appellant choked her. Appellant then retrieved a shotgun, pointed it at complainant, and threatened to kill her.  When complainant attempted to leave the house again, appellant retrieved another gun, a pistol, pointed it at her and said he was going to Ablow [Christine] up into pieces in front of [her].@  Appellant also told complainant that if she tried to run away, Ahe would kill [her] before [she could] get down to the end of the driveway@ and would kill the complainant=s sister, the dog, and himself. 

Shortly thereafter, complainant, Christine, and appellant attempted to talk.  Appellant threatened to assault complainant again with an ashtray he was holding. Complainant ran in fear, but appellant stopped her. Complainant was eventually able to leave the house and call the police.

Appellant testified that on the day in question he never pointed a gun at complainant or her mother and never threatened to kill either one of them.  According to appellant, he went to sleep after the church runs and was awakened by a maintenance man who told him the police were on their way.

Appellant was found guilty by a jury of aggravated assault.^[2] The jury sentenced him to five years in prison and recommended community supervision.  Appellant=s prison sentence was probated for five years.  In two points of error, appellant contends that the trial court improperly (1) denied his right to confrontation and cross-examination when it did not allow him to cross-examine witnesses regarding their motive, and (2) allowed the State to make a comment on appellant=s post-arrest silence.

II.  RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES

In his first point of error, appellant contends that the trial court deprived him of his right to confront and cross-examine two of the State=s witnesses in violation of the United States and Texas constitutions.  At trial, appellant attempted to examine complainant and Christine Trent regarding their return to the mobile home and their retrieval of appellant=s personal belongings while he was jailed for the instant offense.  According to appellant, this information would have shown that the witnesses had a motive to lie.

Standard of Review

We review the trial court=s decision to exclude evidence under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A trial court must be given wide latitude in its decision to exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).  As long as the trial court=s evidentiary ruling was within the zone of reasonable disagreement, we will not disturb it.  Burden, 55 S.W.3d at 615; Crenshaw v. State, 125 S.W.3d 651, 653 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).

Exclusion of Testimony

The constitutional right of confrontation is violated when appropriate cross-examination is limited.  Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).  Appropriate cross-examination includes all avenues reasonably calculated to expose a motive, bias, or interest for the witness to testify.  Id.  (citing Lewis v. State, 815 S.W.2d 560, 565 (Tex. Crim. App. 1991)). 

While great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony, the defendant bears the burden of demonstrating the relevance of the proffered evidence to the issue of bias or motive.  See Chambers v. State, 866 S.W.2d 9, 26-27 (Tex. Crim. App. 1993).  Evidence is relevant if it has 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.  In order to demonstrate that the proffered testimony is relevant to the issue of bias or prejudice, the defendant must establish a specific connection between the witness=s testimony and an actual motive or interest.  See Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995); Moreno v. State, 944 S.W.2d 685, 692 (Tex. App.CHouston [14th Dist.] 1997, pet. granted) ( holding the State failed to show a specific connection between the witness=s testimony and the actual bias or motive); see also Ellis v. State, 99 S.W.3d 783, 789 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).

             Here, appellant has failed to show the relevance of the excluded testimony to the merits of the case or to the issue of motive to give false testimony. Appellant provides no specific authority supporting the proposition that the proffered testimony was relevant, but only recites general principles of constitutional law and the law of evidence.  Appellant=s naked allegations suggesting that complainant and Christine lied about the assault because they took his personal belongings from the house while he was jailed does not fairly tend to raise an inference that complainant and Christine had motive to testify falsely.  See Moreno, 944 S.W2d at 692-93; Ellis, 99 S.W.3d at 789. 

We therefore hold that the trial court did not abuse its discretion in refusing to allow appellant to cross-examine complainant and Christine regarding the removal of appellant=s belongings.  We overrule appellant=s first point of error.

III. POST-ARREST SILENCE

In appellant=s second point of error, he argues that the trial court erred in allowing the prosecutor to comment on his post-arrest silence during closing argument. Appellant complains that the State informed the jury that appellant did not testify at a protective order hearing regarding the instant offense, which was after his arrest but before trial.  The State, however, argues that its comment was a direct response to appellant=s closing argument. 

Defense counsel argued in her closing that the State was unable to point to any inconsistencies in appellant=s testimony; whereas, defense counsel showed inconsistencies in complainant=s and Christine=s testimony.  The State then pointed out that it was unable to show inconsistencies in appellant=s testimony because the trial was the first time he told his story, unlike complainant and Christine who testified at the protective order hearing.  Appellant contends that because this argument was an attempt to use his constitutional right to remain silent to his detriment, it was improper. 

Proper jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel=s arguments; or (4) a plea for law enforcement.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Hernandez, 171 S.W.3d at 357.  The prosecution may argue outside the record in responding to the defense=s having done so, but it may not stray beyond the scope of the invitation.  Hernandez, 171 S.W.3d at 357.  Even when an argument exceeds the permissible bounds of these areas, the error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the defendant into the trial proceeding.  Wesbrook, 29 S.W.3d at 115.  The prosecutor=s remarks must have been a willful and calculated effort to deprive the defendant of a fair and impartial trial.  Id.

We find that the State=s argumentB  that it failed to show inconsistencies in appellant=s testimony because he did not testify at the protective order hearingB was an answer to defense counsel=s argument.  During her closing, defense counsel asserted that while appellant was able to impeach complainant=s and Christine=s testimony using their previous testimony from the protective order hearing, the State was unable to impeach appellant=s testimony.  The State reasonably responded to appellant=s argument.  As a result, we cannot conclude the State=s response to this argument was improper. 

Additionally, on redirect, appellant testified that he had not testified at the protective order hearing.  By telling the jury himself that he did not testify at the protective order hearing, appellant opened the door on this issue.  See Cagle v. State, 23 S.W.3d 590, 592-93 (Tex. App.CFort Worth 2000, pet. ref=d) (stating criminal defendants may not testify and then use the Fifth Amendment privilege against self-incrimination on the issues that they have put in dispute); see also Szmalec v. State, 927 S.W.2d 213, 217-18 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Here, the State merely summarized the evidence.  We overrule appellant=s second point of error.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 29, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).    

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^[1]  Appellant testified that he had one shot of vodka and had taken only one hydrocodone for his back pain.

^[2]  A person commits aggravated assault when he commits an assault as defined in section 22.01and he (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. ' 22.02 (Vernon 2003).  A person commits assault under section 22.01 when he (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.  Tex. Penal Code Ann. ' 22.01.