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 2007-02

Rebecca Ann Lee v. State ( 2007 )


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  •                 NO. 12-05-00359-CR

     

    IN THE COURT OF APPEALS

                                   

    TWELFTH COURT OF APPEALS DISTRICT

     

    TYLER, TEXAS

     

     

    REBECCA ANN LEE,         §          APPEAL FROM THE 159TH

    APPELLANT

     

    V.        §          JUDICIAL DISTRICT COURT OF

     

    THE STATE OF TEXAS,

    APPELLEE   §          ANGELINA COUNTY, TEXAS

     

     

     


    MEMORANDUM OPINION

                Rebecca Ann Lee appeals her conviction for murder. In seven issues, she argues that her trial counsel was ineffective, the evidence was insufficient to sustain her conviction, and the trial court erred in not giving jury instructions she requested. We affirm.

     

    Background

                Rebecca Lee and her husband, Johnny, lived together with Rebecca’s two daughters. Johnny had been to prison several times and supported the family by manufacturing methamphetamine and selling it. Appellant used drugs with her daughters and, according to at least one witness, engaged in sexual acts with her husband and her daughter Candice.

                On May 9, 2003, Johnny and Rebecca killed Candice by injecting her with a large quantity of methamphetamine.  According to the medical examiner, Candice, a slight fifteen year old girl, had enough amphetamine and methamphetamine in her system to kill four 150 pound men.  She also had a minor wound to her arm where the drugs were injected and finger shaped marks near the injection point that were consistent with her arm being held forcibly.  She also had numerous scrapes, cuts, and bruises, although none of them were life threatening injuries. 


                Elton Reece is a drug user, and he testified that he went to the Lee home early in the morning on May 9, 2003 to buy methamphetamine.  He heard fighting or commotion in a back bedroom, and then saw Candice run out of the bedroom and out of the house.  Johnny and Appellant chased her, and Candice tried to hide under a truck.  Johnny pulled her from under the truck and took her back to the back bedroom.  After a short time, Johnny emerged and told Elton that he thought Candice was dead.  Appellant emerged and said that she told Johnny it was “too much,” and Johnny responded, “I didn’t mean to.”

                Hours later, Appellant called the police and reported that Johnny had found Candice under a truck outside the home, that they had brought her inside, and that Candice was dead.  At trial, two of Appellant’s acquaintances testified that Appellant had admitted injecting Candice with methamphetamine the night she died, and one witness said Appellant showed her the puncture mark on Candice’s arm at her funeral service. The funeral service was conducted before the autopsy and before the cause of death was known to law enforcement. Appellant’s defense at trial was that she went to sleep the evening of May 8, 2003 and awoke to find her daughter dead.  The jury disbelieved her, found her guilty as charged, and assessed punishment at imprisonment for life.  This appeal followed.

    Ineffective Assistance of Counsel

                In her first and seventh issues, Appellant asserts that she received ineffective assistance of counsel.  Specifically, she complains that her attorney should have sought to sever her trial from Johnny’s and that her attorney did not properly investigate her background or present mitigating evidence at her punishment hearing. 

    Applicable Law

                Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).  The first step requires the appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  An ineffective assistance of counsel claim is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation.  See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

                The second step requires the appellant to show prejudice from the deficient performance of his attorney.  See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).  To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 

                We begin with the strong presumption that counsel’s conduct falls with the wide range of reasonable professional assistance.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  As part of this presumption, we presume counsel’s actions and decisions were reasonable and were motivated by sound trial strategy.  See id.  Appellant has the burden of proving both prongs of an ineffective assistance of counsel claim.  See id.

                Generally, we review a trial court’s denial of a motion for new trial under an abuse of discretion standard.  See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)).  We review the ultimate question of prejudice de novo, but the trial court’s decision is afforded deference on any underlying factual determinations.  Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).  When no express fact findings are made by the trial court, as is the case with rulings on motions for new trial,1 we may “impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.”  Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004).

    Analysis

                Appellant first argues that her attorney should have sought to sever her trial from Johnny’s trial.  Article 36.09 of the Texas Code of Criminal Procedure provides that a court is to sever the trial of two codefendants if there is prejudice to one of them from the joinder or if there is a “previous admissible conviction against one defendant.”  Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006).  In her brief, Appellant argues that she was prejudiced because Johnny had four prior felony convictions and because there was a “concern” that one of the codefendants would say something implicating the other party.  At oral argument, Appellant also argued that she had a right to severance, irrespective of prejudice, because of Johnny’s prior felony convictions. 

                Appellant’s attorney testified at a hearing on a motion for new trial that it was Appellant’s decision not to seek to sever the trial and that it was his strategy to leave the two cases together because he felt the comparison to Johnny favored Appellant, in part because she had no prior convictions.  The decision not to seek severance, even if the trial court would have been obligated to grant the motion, is a purely tactical decision.  See Woods v. State, 998 S.W.2d 633, 635 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d).  In Woods, the court of appeals used as an example a defendant who might find it “advantageous to be tried along with a co–defendant with a criminal record because the contrast in culpability or involvement between the two defendants favors a strategy of allowing the jury to focus on the co–defendant, rather than the alternative of being tried alone.”  Id. at 636.  Counsel perceived himself to be in just such a situation.  Because of the physical evidence, the jury was likely to believe that at least two people worked together to kill Candice, and the likely conclusion would be that it was some combination of Elton Reece, Johnny, and Appellant who were responsible for Candice’s death.  Appellant had no criminal record and her attorney thought it advantageous for her to be tried along with Johnny, who had been convicted of several felonies.  This was a reasonable course of action.  Their defenses were not mutually antagonistic; both testified that they were asleep when Candice was killed.  Neither implicated the other in their respective testimonies or in their statements to the authorities.  

                With respect to the deficient performance part of our analysis, our inquiry of trial counsel’s strategic decisions is made without the benefit of hindsight.  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).  Even with the benefit of hindsight, Appellant can point to no prejudice she suffered other than the surmise that her life sentence had something to do with her being on trial with her husband and one statement made by her attorney in summation that is subject to different interpretations and does not indicate that she was prejudiced.2

                Appellant presented this claim at the hearing on her motion for new trial.  The trial court denied the motion for new trial.  Appellant does not claim that she wished for her trial to be severed from Johnny’s and that her attorney refused to do so.  If the trial court believed that Appellant agreed not to seek a severance, as her attorney testified, that would support the trial court’s ruling irrespective of prejudice.  Even if Appellant delegated the decision to her attorney, counsel’s decision not to seek severance in light of the circumstances presented was a reasonable one, his strategic decision was within the broad range of objectively reasonable representation, and Appellant has shown no prejudice.

                Appellant’s second argument is that counsel did not provide effective representation because he failed to present evidence during the punishment phase of the trial and he did not do a reasonably thorough investigation of the case that could have been presented during the punishment phase of the trial.

                Appellant’s counsel testified that it was his intention to put Appellant on the stand during the punishment phase.  He also testified that he changed his mind because she was becoming angry with the prosecutor and he was apprehensive about what would happen if she testified.  The relevant testimony is as follows:

     

                            [District Attorney]:              Had there been any discussion between the two of you about calling her in the punishment phase of the trial?

     

    [Counsel]:                             We had planned on her testifying at the punishment phase.  Or I had planned, and we had discussed it.

     

                    [District Attorney]:              And what happened?

     

    [Counsel]:                             Rebecca [Appellant] got, I think, mostly upset with you.  But she was pretty irate by the time we got to the punishment hearing.  She doesn’t lose control very often, but she was losing control.  And I felt she would be a detriment if she testified again, and she pretty much concurred with that.

     

                    [District Attorney]:              So it was a mutual decision that she not testify?

     

                    [Counsel]:                             That’s correct.

     

                    [District Attorney]:              But she knew she had the right to testify?

     

                    [Counsel]:                             Sure.

     

                    [District Attorney]:              And you did not fail to call her when she was wanting to testify?

     

                    [Counsel]:                             That’s true.

     

                Appellant did not expressly contradict this testimony.  She said that she wanted to testify at the punishment phase and that her attorney told her she could.  She never said that her attorney prevented her from testifying.

                A criminal defendant is the  “ultimate authority” as to whether she testifies or not.  Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560, 160 L. Ed. 2d 565 (2004).  If counsel frustrates a defendant’s right to testify, we evaluate that error under the ineffective assistance of counsel framework.  Johnson v. State, 169 S.W.3d 223, 228 (Tex. Crim. App. 2005).  On the basis of the testimony, the trial court could have reasonably concluded that Appellant joined the decision not to testify.  If Appellant joined the decision not to testify, that ends our inquiry.

                There was no basis for the trial court to conclude that Appellant’s counsel prevented her from testifying.  The strategic decision not to present Appellant’s testimony was reasonable.  The trial court had seen a videotape of Appellant’s interview with the police in which she was abusive to the officers investigating her daughter’s death and also had the opportunity to view her demeanor in the courtroom during trial. Therefore, the trial court’s decision to credit counsel’s testimony is not without factual basis.  Furthermore, counsel testified that by not presenting testimony from Appellant, he was able to keep the jury from hearing about her substantial misconduct since the death of her daughter, including the fact that Appellant and Johnny had set up a methamphetamine manufacturing lab in a shed behind her father’s residence shortly after Candice’s death. Additionally, Appellant had been charged with the delivery of methamphetamine during the interim between Candice’s death and her arrest for the murder. During a CPS hearing prior to trial, Appellant had admitted under oath that she had delivered methamphetamine to a police officer, and she had been charged with that offense.  None of this evidence was admitted in the punishment phase of the trial, and it was counsel’s belief that it would have been admitted had she testified.  If, however, the court found that Appellant simply acceded to counsel’s decision that she not testify, counsel’s decision not to present Appellant’s testimony, along with the other suggested evidence is not outside the scope of reasonable assistance of counsel and does not cause us to conclude that there is a reasonable probability that the result of the proceeding would have been different.         

                At the motion for new trial, Appellant argued that her attorney should have presented as punishment evidence that she had been sexually assaulted by an uncle and a carnival worker as a child, that she had worked in a restaurant, that she had a difficult life, and that she had gone to community college.

                This case involved the intentional murder of Appellant’s teenage daughter.  The jury concluded, despite her testimony, that Appellant either held Candice’s arm while Johnny injected her with a needle full of methamphetamine or that Appellant injected her daughter herself.  The jury could have concluded that the murder took place after a prolonged physical fight during which Candice was beaten and that Johnny and Appellant murdered Candice because she had been sleeping with Johnny or because she was going to tell the authorities about their drug dealing.

                In that context, the fact that Appellant had worked in a restaurant, had a difficult life, or had gone to community college was unlikely to tip the scale.  It is a closer question with respect to the sexual assault.  The court of criminal appeals recently granted habeas corpus relief to an applicant whose attorney had failed to uncover evidence that he had been sexually assaulted, holding that the evidence could have mitigated his punishment.  See Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006).

                This case is different from Gonzales in three important ways.  First, counsel was aware, at least to some extent, of the sexual assault.  This was not a case, like Gonzales, where substantial evidence was developed after trial that had not been presented at trial.  Second, there is no finding, as there was in Gonzales, that the assault actually occurred. Finally, there was no evidence, as there was in Gonzales, linking the sexual assault to other problems the defendant suffered as a result of the assault.

                The trial court may not have believed Appellant’s testimony at the motion for new trial hearing that she had been sexually assaulted.  Because Appellant was the only person who testified about the childhood abuse, we cannot conclude that she could have attempted to prove it other than by testifying herself.  Counsel decided not to present Appellant’s testimony because he was worried that she would lose control.  He also feared that the State would be able to ask Appellant about her substantial misconduct since Candice’s death.  In this context, it was reasonable for counsel to conclude that putting Appellant on the stand, even if her testimony included her allegation that she had been sexually assaulted, was not worth the risk of her breaking down on the stand or the risk that evidence of her substantial misconduct since her daughter’s overdose death would be placed before the jury.3

                Finally, Appellant complains that counsel relied upon the subpoena of the State and did not secure the testimony of Appellant’s other daughter at the punishment hearing.4  There is no evidence as to what the daughter’s testimony would have been.  The other daughter did not testify at the motion for new trial hearing, and we cannot conclude that it was deficient performance not to call her as a witness without some notion of what her testimony would have been.  See Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.–Tyler 1996, pet. ref’d).

                In conclusion, the trial court could have found that Appellant agreed with the strategy not to seek a severance of her case from Johnny’s and agreed with the decision not to testify.  It was a reasonable strategy not to present punishment evidence, especially when it risked exposing further negative facts, and when the bulk of the proposed evidence was of slight mitigation value.  It was a reasonable strategy to go to trial with Johnny, and to present Appellant as being either less culpable than Johnny or less of a bad person.  Appellant did not receive ineffective assistance of counsel.  We overrule Appellant’s first and seventh issues.

     

    Sufficiency of the Evidence

                In her second, third, fourth, and fifth issues, Appellant argues that the evidence is insufficient to support her conviction.  Specifically, Appellant argues that the trial court should have granted her motion for a directed verdict at the close of the State’s case, that the accomplice testimony was not corroborated, and that the evidence was legally and factually insufficient to support her conviction.

    Standards of Review

                The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence.  See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d).  Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

                While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence.  Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996).  We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict 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); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).

                Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness’s testimony.  Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000).  The fact finder may choose to believe all, some, or none of a witness’s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

                The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.”  Id.

                As alleged in the amended indictment, the State was required to prove that Appellant intentionally or knowingly committed an act clearly dangerous to human life by injecting Candice Alexander with an excessive amount of methamphetamine, causing the death of Candice Alexander, that she did so in the course of committing the felony offense of delivery of methamphetamine to a minor, and that the death was caused in the course of and in furtherance of the commission of the felony.  See Tex. Pen. Code Ann. §§ 19.02 (b)(2), (3) (Vernon 2006).  A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.  Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 2006).

                A challenge to the denial of a motion for instructed verdict is a challenge to the legal sufficiency of the evidence.  McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).  We consider all of the evidence for purposes of this review.  Cook, 858 S.W.2d at 470. 

                A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect a defendant to the offense committed.”  Tex. Code Crim. Proc. Ann. 38.14 (Vernon 2006); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App.–Tyler 2005, pet. ref’d).  The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense.  Tex. Code Crim. Proc. Ann. 38.14.  The corroboration requirement is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense.  Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).  The corroborating evidence may consist of circumstantial evidence.  Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). 

                To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense.  McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).  The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that are the basis for the legal and factual sufficiency standards. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

    Analysis–Identity

                Appellant first argues that the trial court should have granted a directed verdict because she was not identified by any of the witnesses during the trial.  The State disagrees, pointing to one witness who identified Appellant, and argues that identity was not an issue in this case.  A defendant is not required to specifically contest an issue beyond a plea of not guilty to require the State to prove every element of an offense. There was, however, evidence of identity in this case.  One witness identified Appellant, and a videotape of Appellant’s statement to the police was played5 for the jury.          The court of criminal appeals has held that in cases where an in–court identification is incomplete, a reviewing court need not presume that the jury chose “wilfully to convict [Appellant] without evidence” that she was the perpetrator of the offense.  See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981).  To resolve this matter, however, we need not rely on a presumption.  Our review encompasses the entire trial, including Appellant’s case in chief.  See Cook, 858 S.W.2d at 470.  Appellant testified during her case in chief and identified herself. Although she disputed some of the statements and actions attributed to her, it is clear that she was the same Rebecca Lee that the other witnesses referred to during their testimony.  The evidence was legally sufficient to prove that the Rebecca Lee named in the indictment and to whom the witnesses referred was the same Rebecca Lee who was on trial.

    Analysis–Corroboration of Accomplice Testimony

                Elton Reece was also charged with Candice’s murder and therefore was an accomplice as a matter of law.  See Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985). He testified that he was present in the home when Candice was killed.  Reece testified that there was a commotion in a bedroom in Appellant’s home, that Candice ran out of the room, out of the trailer, and tried to hide under a truck outside the house.  Reece testified that Johnny pulled her out from under the truck and took her back inside. Appellant and Johnny took Candice to a back room.  Reece testified that Johnny and Appellant emerged a short time later and said Candice was dead. 

                Setting aside Reece’s testimony, there is substantial evidence that links Appellant to the murder.  First, the cause of her death was an overdose of methamphetamine, and Appellant told at least two witnesses that she and Johnny had injected Candice with drugs.  There was also testimony that Appellant had complained that Candice was going to tell the authorities about the family’s involvement in the drug trade and that Candice had been getting her own methamphetamine and not sharing the drugs with the rest of the family.  Second, another witness testified that Appellant told her that Candice had died of a methamphetamine overdose and, at the funeral service for Candice, told her to look at Candice’s arm.  This was before the toxicology report was available concluding that Candice died of an overdose of methamphetamine.  Finally, while denying killing her daughter, Appellant testified that she was present in the home before Candice died and that she was present when the body was found. The evidence other than Reece’s testimony is sufficient to link Appellant to the murder.

    Analysis–Legal and Factual Sufficiency

                With respect to the legal sufficiency of the evidence, Appellant argues only that it was not proven that she was the same Rebecca Lee who was indicted.  We have previously considered this  argument and hold that there was sufficient evidence, including Appellant’s testimony, to prove that she was the Rebecca Lee referred to in the indictment and to whom the witnesses were referring when they testified. 

                Appellant argues that the evidence is factually insufficient to support the verdict.  Specifically she argues that another of Appellant’s daughters was present in the trailer and would have awoken had the assault happened the way Reece testified, and that the evidence was insufficient to overcome Appellant’s testimony that she was asleep when Candice was murdered.  This is primarily an argument about the weight to be given to Reece’s and Appellant’s testimony.  The jury determines the weight to be given the testimony and is the arbiter of credibility.  Wesbrook, 29 S.W.3d at 111–12.  The jury’s decision to credit Reece’s testimony and not Appellant’s is not unreasonable.  The testimony of Elton Reece and the medical examiner, if believed, is sufficient to support the verdict.  When we consider this testimony along with Appellant’s statements to other witnesses about her actions and the remainder of the evidence, we conclude that the evidence that supports the verdict is neither inadequate, standing alone, to support the verdict; nor is it outweighed by the great weight and preponderance of the evidence.  We overrule Appellant’s second, third, fourth, and fifth issues.

    Jury Instructions

                In her sixth issue, Appellant contends that the trial court erred when it declined to give several jury instructions she requested.  The instructions requested by Appellant would have invited the jury to examine the testimony of drug addicts, informants, and those testifying under immunity from prosecution with “greater care” or “greater care and caution” than the testimony of an ordinary witness.6

                A trial court is required to instruct the jury on the “law applicable to the case,” and it is error for a trial court to refuse to do so. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2006); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).  Appellant has cited no Texas authority—other than a bare citation to several sections of article I of the Texas Constitution—for the type of instructions she requested and asserts, again without citation, that these instructions are derived from jury instructions used in the federal courts in the Fifth Circuit.  See, e.g., United States v. Abrego, 141 F.3d 142, 153 (5th Cir. 1998).  Although not precisely denominated as such, we will construe this argument as a good faith argument for an extension, modification, or reversal of existing law.

                Existing law forbids the instruction Appellant sought.  The court of criminal appeals has acknowledged that “[i]t has long been held that it is reversible error for the trial court to give instructions that refer to the credibility of the witnesses.”  Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988).  We have held that a credibility instruction need not be given when a child witness testifies, Norman v. State, 862 S.W.2d 621, 628 (Tex. App.–Tyler 1993, pet. denied), and several courts of appeals have considered instructions similar to those proposed here and held that a trial court need not give them.  See Reyes v. State, 694 S.W.2d 556, 566–67 (Tex. App.–Corpus Christi 1985), reformed on other grounds and aff’d, 741 S.W.2d 414 (Tex. Crim. App. 1987); Conway v. State, 740 S.W.2d 559, 562 (Tex. App.–Beaumont 1987, pet. ref’d). 

                In Slaughter v. State, 809 S.W.2d 949, 951–52 (Tex. App.–Beaumont 1991, no pet.), the court of appeals traced the law regarding jury instructions relating to the credibility of witnesses back more than one hundred years and concluded that such instructions were improper and contrary to Texas law.  The court in Slaughter noted that, by statute, the jury is the exclusive judge of the weight to be given to testimony and the trial court is forbidden to express an opinion on the weight of the evidence.  Id. (citing Tex. Code Crim. Proc. Ann. arts. 38.04, 36.14).  The instructions requested by Appellant cannot be given because they are a form of comment on the weight of a witness’s testimony.  Id. (quoting Muely v. State, 31 Tex. Crim. 155, 19 S.W. 915 (1892) (“The jury are the exclusive judges of the weight of the testimony and the credibility of the witnesses, and no interference by the court with the prerogative of the jury in these respects can be allowed.”)); see also Russell, 749 S.W.2d at 78 (“Certainly a comment on the weight of the evidence occurs when the judge appraises the credibility of a particular witness.  Thus when a judge, in his charge to the jury, suggests that certain evidence is true or is untrue, that is a comment on the weight of the evidence.”).

                Appellant argues that reversible error occurred because the jury was not informed to be skeptical of the testimony of drug addicts, those she has called “informants,” and those who had criminal cases pending.  Appellant’s argument does not persuade us to depart from established precedent.  The crucible of cross examination burns hot enough to allow sufficient probing of a witness who may use drugs, if the evidence is admissible, or who is facing criminal charges.  We are not persuaded, even if Texas law allowed it, that a jury needs to be specifically reminded to be skeptical of the testimony of witnesses with these issues. Nor are we persuaded that the Texas or the U.S. constitutions require such instructions.  It has long been the law in Texas that the trial court may not make a comment on the weight of the evidence.  This conclusion is rooted in our desire that factual determinations in criminal cases, including assessments of credibility, be made by jurors with as little judicial  interference as possible.  The trial court’s responsibility to read the law to the jury does not include offering suggestions about how to assess credibility.  We overrule Appellant’s sixth issue.

    Disposition

                We affirm the judgment of the trial court.

     

                                                                                                         JAMES T. WORTHEN   

                                                                                                                     Chief Justice

     

    Opinion delivered February 9, 2007.

    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

     

     

     

     

     

     

     

     

     

     

    (DO NOT PUBLISH)

     

     

     

     

     


    1 See Tex. R. App. P. 21.8(b) (“In ruling on the motion for new trial, the court must not summarize, discuss, or comment on evidence.”).

    2 Counsel said that “Johnny Lee and Rebecca Lee have done a lousy job of getting their stories straight because some of the things that she said hurt him; some of the things that he said hurt her.”  This statement seems to be an internecine attack, but is actually a suggestion that the defendants were not lying or they would have made up a

    Footnote continued.

     

    better story.

    3 Counsel had apparently factored the risk of Appellant’s misconduct coming into the trial when he initially decided that Appellant should testify.  He was more concerned about her losing control on the witness stand.  So long as she did not object, either of these considerations would have supported his decision not to present Appellant’s testimony.

    4 Counsel was entitled to rely on the State’s subpoena, and if the State’s subpoena had been served, the clerk was not permitted to issue another subpoena.  See Tex. Code Crim. Proc. Ann. art. 24.03(a) (Vernon 2006).

    5 We do not doubt that the videotape was persuasive evidence of identity, but on appeal we cannot compare an image on the videotape to the person at trial because we were not present at trial.

    6 As required by law, the trial court instructed the jury that Elton Reece was an accomplice and that if an offense was committed, the jury could not consider Reece’s testimony unless it found his testimony to be true and corroborated by other evidence tending to connect Appellant to the charged offense.  See Herron v. State, 86 S.W.3d 621, 631–32 (Tex. Crim. App. 2002).