Heath Alan Bishop v. State ( 2014 )

Opinion issued August 14, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00688-CR
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HEATH ALAN BISHOP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1382023
MEMORANDUM OPINION
A jury convicted appellant Heath Alan Bishop of aggravated assault with a
deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West Supp. 2013). The
jury found true the enhancement allegations that Bishop previously was convicted
of the felony offenses of forgery and aggravated robbery, and it assessed
punishment at 50 years in prison. Bishop appeals, contending that the evidence is
legally insufficient to support his conviction and that the trial court erred with
regard to two evidentiary rulings, excluding extraneous-offense evidence
pertaining to the complainant and admitting an ice pick used in the commission of
the crime.
We affirm.
Background
When complainant C.L. was 12 years old, he left home and joined a gang.
By the time he was 14 years old, he was living alone in an apartment, which was
leased by a more senior gang member, and he was selling drugs from that location.
C.L. used a video monitor to watch as people approached from outside the
apartment. He sold only to people he knew or trusted, and he held a loaded gun
while making drug transactions. He said he sold the drugs near the threshold of the
apartment, and it was not his habit to allow anyone inside. C.L. was acquainted
with Bishop, who had purchased crack cocaine from him in this manner.
One night, Bishop came to the apartment to buy crack. Although he had
drugs available, C.L. told Bishop he had none to sell. Nevertheless he allowed
Bishop inside to use the bathroom. Shortly thereafter, C.L. felt a tap on his back or
shoulder, and Bishop began stabbing him in the chest and face with an ice pick,
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eventually stabbing it through his eye and into his brain. The ice pick became stuck
in his skull. C.L. blacked out, and Bishop left.
Eric Fitzpatrick came to the apartment, found C.L., and called 9-1-1 to
report a possible shooting. It was either late on March 16 or just past midnight on
March 17. Houston Police Department Officer R. De La Cruz was among the first
responders. He testified that C.L. was “covered with blood,” “in agony,” “begging
for help,” and “had his eye shut.” He testified that some of the blood appeared
fresh. Likewise, blood was spattered throughout the apartment—on the floor, in the
hallway, on the bedroom door, and in the kitchen. An empty bottle of “Oxygen
Power” stain remover solution was found in the kitchen sink.
C.L. was taken to the hospital, where he stayed for about a month. He
underwent brain and back surgeries, and he permanently lost vision in his right
eye. He also suffered from headaches and had difficulty speaking.
On the night of the assault on C.L., Bishop called his friend, L. Lozada and
asked her to meet him at a motel where they sometimes went to talk and use drugs
together. Lozada was acquainted with C.L. because she had previously
accompanied Bishop to his apartment to buy drugs. Bishop told her that he had
fought with C.L. and stabbed him multiple times with an ice pick, including
stabbing him in the eye. He also said that he believed he had killed C.L. and that he
had used a chemical cleaning solution to remove blood stains from the scene.
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Lozada noticed that Bishop had more money with him than he usually carried, and
he had a salt shaker that C.L. used to store and conceal crack cocaine.
When Lozada returned home, she told her mother that Bishop had confessed
to her that he had killed a person. Her mother encouraged her to make a police
report, which she did. A patrol officer responded and forwarded the information to
one of the investigators on the case, HPD Sergeant K. Gibbs, who interviewed
Lozada. Gibbs later testified that Lozada was unusually nervous during the
interview because she was “afraid of the suspect herself,” and because of that, she
permitted the patrol officer who had initially responded and Lozada’s mother to be
present, but silent, during the interview. Based on this interview, Gibbs prepared
and presented a photographic lineup, from which Lozada identified Bishop.
Although Lozada was a drug user, Gibbs did not attribute her nervous
behavior to withdrawal from narcotic drugs, but rather to her “extreme nervousness
and anxiousness” about talking to the police. Lozada fell asleep during the
interview, but Gibbs attributed that to her lack of sleep the night before.
HPD Detective T. Tyler and Sgt. K. Tolls were also investigating the
incident. Tyler testified that he responded to the incident in the early morning on
March 17. In addition to collecting photographic evidence of the scene of the
crime, he spoke with a downstairs neighbor who said that he saw 18 people come
and go from C.L.’s apartment in the two days prior to the stabbing.
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Tyler and Tolls saw C.L. at the hospital twice. During the first visit, they
observed that C.L was severely injured with stab wounds to his chest and both
eyes, which affected his vision. They photographed his injuries, and those pictures
were introduced into evidence at trial. C.L. was not talkative or forthcoming about
the assault. Approximately 12 days after the attack, they visited C.L. a second time
and showed him a photographic lineup, from which he immediately identified
Bishop as the person who had stabbed him.
Tolls received an ice pick at the hospital from a person who said it was
removed from C.L.’s head. He testified that when used in the manner as it was
used in this case, an ice pick is a deadly weapon. At trial, Bishop objected to the
admission of the ice pick on the grounds that the chain of custody had not been
established. The State argued that the ice pick was retrieved from the hospital,
checked into evidence, and remained sealed until opened on the day of trial. The
trial court overruled Bishop’s objection and admitted the ice pick into evidence.
In addition to interviewing C.L. at the hospital, Tyler and Tolls also spoke
twice to Bishop, once close in time to the assault and again about 12 days later.
Bishop denied any involvement. By the second meeting Bishop had changed his
appearance by shaving his head and goatee.
C.L. testified at trial. He revealed that he was in juvenile detention for
violating probation on a charge of delivery of a controlled substance. He admitted
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that he had been a member of the Puro Vato Locos gang since he was 12 years old
and that he had been selling drugs for the gang. C.L. did not identify Bishop at
trial, however, he pointed out that the reason he did not recognize Bishop may
have been that Bishop had short hair at trial and long hair around the time of the
stabbing. C.L. testified that although he did not see Bishop stab him, he was the
only other person inside the apartment with him at that time. C.L. testified that
Bishop’s brother was at the front door at the time of the stabbing, and he watched
the brother until he blacked out. On cross-examination, C.L. agreed that Bishop’s
brother might have participated in the attack as well. C.L. testified that he believed
Bishop took an amount of crack cocaine worth about $700.
Bishop’s attorney sought to impeach C.L. with extraneous-offense evidence,
but the court admonished him multiple times that it was improper to ask questions
about his prior acts of misconduct. Thus Bishop’s attorney was not permitted to
ask such questions, and when given an opportunity to make a record, he
summarized the questions that he would have asked C.L. about prior gang activity
and drug sales on the night of the assault. Bishop’s attorney had previously
explained that he wanted to ask questions about drug sales to establish a timeline
of what happened that night so that he could argue that another person was the
culprit, but when making a record of the questions he wished to ask, he did not
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explain how the answers might be relevant. He also did not state what answers he
expected C.L. to give in response to the questions.
Bishop’s defensive theory was misidentification. The evidence that C.L. had
been stabbed and seriously injured was undisputed at trial, but Bishop’s theory was
that he was not the assailant. To that end, Bishop presented several alibi witnesses,
including his mother and two family friends. His mother testified that Bishop was
working as a waiter for a catering business at that time and that she had driven him
to and from work on the night of March 16. She said that after work, she drove him
to a friend’s house. Bishop’s two friends testified that they were at the house when
his mother dropped him off around midnight on March 17, he was wearing his
work uniform when he arrived, and he remained with them through the early or
late morning hours of March 17.
In closing, Bishop argued that the State’s witnesses were unreliable due to
their history of drug use, addiction, and criminal activity, that C.L. had not
identified Bishop in open court, and that “there are plenty of other viable
candidates who could have done this roaming the streets out there.” He also
emphasized that C.L. was “a crack dealer,” had been convicted of manufacturing
and delivery of a controlled substance, “may be in the penitentiary in not too long,”
and had “put himself in the crack business, the gang business and the violence
business.” In addition, Bishop’s attorney asserted that Lozada was not credible
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because she was addicted to drugs and had previously been convicted of making a
false report to a police officer. He also argued that the assailant may have been a
member of C.L.’s gang or a rival gang, but he did not mention the alibi evidence.
The State emphasized C.L.’s out-of-court identification of Bishop as the
assailant; Bishop’s confession to Lozada and the evidence that corroborated her
report to the police; and the alibi witnesses’ interest in the outcome of the trial as
compared to Lozada’s disinterested position.
The jury found Bishop guilty of aggravated assault with a deadly weapon
and assessed punishment. Bishop appealed.
Analysis
I. Sufficiency of the evidence
In his first issue, Bishop argues that the evidence was legally insufficient to
support the jury’s verdict because neither C.L. nor Lozada were credible witnesses,
he presented some evidence of an alibi, and no physical evidence connected him to
the crime.
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and 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, 319, 99 S. Ct. 2781, 2789 (1979);
Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The standard is
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the same for both direct and circumstantial evidence cases. Carrizales v. State, 414
S.W.3d at 742; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do
not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of
any witnesses, as this is the function of the trier of fact. See Adames v. State, 353
S.W.3d 854, 860 (Tex. Crim. App. 2011); Wiley v. State, 388 S.W.3d 807, 813
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Under the Texas Penal Code, a person commits assault if he “intentionally,
knowingly, or recklessly causes bodily injury to another,” TEX. PENAL CODE ANN.
§ 22.01(a)(1), and he commits aggravated assault if he “causes serious bodily
injury” or “uses or exhibits a deadly weapon during the commission of [an]
assault.” Id. § 22.02(a). “A weapon can be deadly by design or use.” Tucker v.
State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE ANN.
§ 1.07(a)(17)). An object is a deadly weapon if “in the manner of its use” it “is
capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). “‘Serious
bodily injury’ means bodily injury that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” Id. § 1.07(a)(46).
There was no dispute that C.L. was stabbed multiple times with an ice pick,
that the ice pick was a deadly weapon, and that serious bodily injury resulted.
However Bishop contends that some other person committed the assault. At trial
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both Detective Tyler and Sgt. Tolls testified that C.L. identified Bishop as the
assailant in a photographic lineup that they showed him approximately two weeks
after the assault while he recovered in the hospital. C.L. testified that at the time of
the assault Bishop was the only other person inside the apartment. Lozada testified
that Bishop had confessed to her that he had stabbed C.L. at his apartment with an
ice pick in the eye and attempted to clean up the blood stains with a chemical
cleaner. Other evidence corroborated her report to the police: C.L. was found in his
apartment with multiple stab wounds, an ice pick lodged in his eye and skull, and
an empty bottle of stain remover was found in the kitchen sink. In addition, Lozada
testified that Bishop was in possession of the salt shaker C.L. used to store and
conceal crack cocaine.
Bishop argues that C.L. and Lozada were not credible and that the jury
should have believed his alibi witnesses instead. However, the jury is the sole
decision-maker when it comes to assessing the credibility of the witnesses. See
Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Just as a jury’s reliance on
the testimony of a modern-day Cretan Liar may be legally sufficient to support its
verdict, so may a jury rely on testimony from witnesses who concede that they
have been addicted to drugs or have previously been convicted of crimes. See
Goodman v. State, 66 S.W.3d 283, 285–86 nn.3–5 (Tex. Crim. App. 2001)
(explaining the semantical paradox of the Cretan Liar and applying it to a review
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of the sufficiency of the evidence). Indeed, corroborating evidence—such as
Lozada’s observation that Bishop had C.L.’s salt shaker, the presence of the empty
bottle of stain remover in the kitchen sink, and C.L.’s testimony that Bishop was
the only other person in the apartment at the time that he was stabbed—supports
the jury’s assessment that C.L. and Lozada were credible witnesses. Finally,
Bishop asserts that there is no DNA or fingerprint evidence to connect him to the
crime and that the lack of physical evidence makes the jury’s reliance on testimony
from C.L. and Lozada even more suspect. Viewing the evidence in its totality,
however, we hold that the jury’s credibility determination was rational without this
additional evidence. See Goodman, 66 S.W.3d at 286 n.4.
Having reviewed the evidence in the light most favorable to the verdict, we
conclude that a rational jury could have found beyond a reasonable doubt that
Bishop intentionally, knowingly, or recklessly caused C.L. serious bodily injury by
stabbing him multiple times with an ice pick, which left him with permanent vision
loss and disfiguring scars. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Carrizales, 414 S.W.3d at 742. Accordingly, we hold that the evidence is legally
sufficient, and we overrule Bishop’s first issue.
II. Exclusion of extraneous-offense evidence
In his second issue, Bishop argues that the trial court erred by preventing
him from cross-examining C.L. “about his drug selling and other activities for the
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Puro Vato Locos gang, crack cocaine sales to people on the day of his stabbing,
and whether he bartered drugs for sex” because his answers to these questions
“would have shown his motive and bias to blame [Bishop] for the stabbing instead
of his gang or Lozada.”
Bishop challenges the trial court’s rulings sustaining objections to four
questions he posed to C.L. on cross-examination. He asked, “[W]hat other things
have you done for Puro Vato Locos besides sell drugs?” The State objected on the
grounds of relevance, Bishop offered no reply or argument, and the trial court
sustained the objection. Next, he asked if C.L. had committed murder for his gang,
obtaining an answer despite the court’s ruling on the State’s objection:
Defense Counsel: Have you ever done any murders with the
Puro Vato Locos?
State: Objection, Your Honor.
Court: Sustained. Approach the bench, please.
C.L.: No, I haven’t.
Bishop’s counsel asked C.L. if “the Vato Locos bring [him] drugs” and if he had
ever gotten sex in exchange for drugs, and the trial court sustained objections on
the grounds of relevance.
At trial, Bishop’s counsel repeatedly questioned C.L. about specific
instances of conduct, mainly relating to his involvement with the Puro Vato Locos
gang. Many times the court admonished him that such questioning was improper
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and advised him that he would be permitted to make a record later. During one
such colloquy, Bishop’s counsel explained why he sought to ask C.L. about other
drug sales on the day of the assault:
Defense counsel: My next question to [C.L.] is going to be how
many people came by and bought crack cocaine
that day.
Court: His other drug deals are not relevant to this
offense. You cannot ask about other specific acts
of conduct. That is not permitted.
Defense counsel: That negates—that could negate all kinds of
defensive issues that don’t just go towards—
Court: You can ask about other people that came to his
apartment. You cannot ask about whether he sold
drugs to them. Do you see the difference?
Defense counsel: I see the difference, but it’s providing him with
blanket immunity.
....
I’m not trying to impeach his credibility
necessarily with those acts. I’m trying to establish
a time line, a chronology of what happened that
evening. Even conceivably under the Judge’s
ruling, I would not be able to ask any questions
about Mr. Bishop because there was a drug deal
going on there.
Court: No. You’re permitted to ask—those are context—
that’s part of the crime, right? That’s part of what
was happening. That’s part of how they were in
contact together. Are you saying that you don’t
want to ask about prior sales to Mr. Bishop?
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Defense counsel: No. It’s that—one of our defensive theories,
perhaps, is that somebody else might have done
this.
Court: Right. You can ask about that. You can ask who
else came. You can say somebody else might have
done this. I think you’ve done that and I think
you’re doing that. But you cannot ask this witness
about other crimes that he’s committed that are
uncharged or unconvicted. Okay? So you can ask
your questions and you can—you can present your
defense, but you’ve got to stay within the Rules of
Evidence.
Later, the court permitted him to make a record pertaining to the excluded
evidence, and Bishop’s counsel stated:
I would have asked [C.L.] if he had sold crack cocaine that evening to
different individuals or anyone. I would have asked [C.L.] how many
individuals he sold crack cocaine to that evening. I would have asked
[C.L.] how much crack cocaine he sold, who these individuals were.
Additionally, I might have asked [C.L.] questions about gang activity.
I might have asked [C.L.] if he had done things for the gang, criminal
acts or noncriminal acts, extraneous offenses, that he did for the gang.
That’s all I can think of right at the moment.
We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.
App. 2007). A trial court abuses its discretion when its decision lies outside the
zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1990). Error may not be predicated on a ruling excluding evidence
unless it affects a substantial right and the substance of the evidence was made
known to the court by offer, or was apparent from the context within which
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questions were asked. TEX. R. EVID. 103; see Mays v. State, 285 S.W.3d 884, 889
(Tex. Crim. App. 2009). When a trial court denies a defendant the right to elicit
specific responses from a witness, to preserve error he must make a record of the
specific questions he would have asked and the expected answers to those
questions. Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d). However, when a defendant is denied an opportunity to inquire
about an entire subject matter that may have impeached the witness’s credibility—
such as evidence showing malice, ill will, motive, or bias—it is sufficient for the
defendant to make a record of the subjects upon which he wished to question the
witness. Id.
Specific instances of conduct may not be used to impeach a witness’s
credibility, except insofar as the witness may have been previously convicted of a
felony or crime of moral turpitude, and in accordance with the Rules of Evidence.
See TEX. R. EVID. 608(b) & 609. Rule 404 prohibits the admission of evidence of a
person’s character or character trait for the purpose of proving action in conformity
therewith. TEX. R. EVID. 404(a). “However, the rules of evidence do permit a
witness to be cross-examined on specific instances of conduct when they are used
to establish his specific bias, self-interest, or motive for testifying.” Hammer v.
State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). Evidence of “other crimes,
wrongs or acts” may be “admissible for other purposes, such as proof of motive,
15
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” TEX. R. EVID. 404(b). But when the proponent seeks to use evidence
of other crimes, wrongs, or acts to show that the witness is biased or has some
motive for testifying against the defendant, the proponent must show that the
extraneous-offense evidence is relevant by “demonstrating that a nexus, or logical
connection exists between the witness’s testimony and the witness’s potential
motive to testify in favor of the other party.” Woods v. State, 152 S.W.3d 105, 111
(Tex. Crim. App. 2004). Such a motive may be shown, for example, when a
witness has been indicted or is on community supervision and “is placed in a
vulnerable position and may have a motive to testify in favor of the State.” Id.
In the trial court, Bishop argued that the extraneous-offense evidence was
necessary to establish a timeline and to advance the defensive theory of
misidentification, i.e., that someone else committed the assault. On appeal, Bishop
argues that the extraneous-offense evidence was admissible for a non-character
conformity purpose such as to show that C.L. was biased or had a motive to lie. In
addition—except as to the question about whether C.L. had committed murder for
the gang, to which he answered “no”—there is no record as to what testimony
Bishop expected C.L. to give in response to the excluded questions. Nothing in the
record shows how C.L.’s testimony would have been relevant to show that he was
biased against Bishop or motivated to lie for the State.
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To the extent that Bishop may have intended to show that C.L. was not
credible because he was biased or had a motive to lie in order to hide the identity
of other drug clients or protect others, his offer of proof would be sufficient to
preserve that complaint. See Ho, 171 S.W.3d at 304. However, the “trial court
maintains broad discretion to impose reasonable limits on cross-examination to
avoid harassment, prejudice, confusion of the issues, endangering the witness, and
the injection of cumulative or collateral evidence.” Lopez v. State, 18 S.W.3d 220,
222 (Tex. Crim. App. 2000). The general area of inquiry that Bishop identified on
the record was C.L.’s gang activity and the volume of drug sales he made from the
apartment. The record includes evidence that C.L. had been a gang member since
he was 12 years old, engaged in illegal drug sales, and protected himself with a
loaded gun while doing so. Detective Tyler testified that a neighbor reported seeing
as many as 18 people come and go from C.L.’s apartment in the two days
preceding the stabbing. Evidence pertaining to Bishop’s desired area of inquiry had
already been properly admitted, and the trial court would not have erred by
excluding this cumulative cross-examination evidence. See id.
We hold that the trial court did not abuse its discretion by excluding this
evidence, and we overrule this issue.
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III. Admission of the ice pick
In his third issue, Bishop argues that the trial court erred by admitting the ice
pick into evidence because the State did not establish a proper chain of custody. As
with the previous evidentiary issue, we review the trial court’s ruling admitting this
evidence for an abuse of discretion. See Layton v. State, 280 S.W.3d 235, 240
(Tex. Crim. App. 2009).
Generally, all relevant evidence is admissible. TEX. R. EVID. 402. “Relevant
evidence means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” TEX. R. EVID. 401. When
determining if proffered evidence is relevant, the court must consider whether
there is a logical connection between the evidence and the proposition sought to be
proved. Layton, 280 S.W.3d at 240. In the absence of evidence of tampering or
alteration, proof of the beginning and end of the chain of custody will generally
support admission of the evidence. See Stoker v. State, 788 S.W.2d 1, 10 (Tex.
Crim. App. 1989), disapproved of on other grounds by Leday v. State, 983 S.W.2d
713 (Tex. Crim. App. 1998). “Absent evidence of tampering, issues regarding the
chain of custody bear on the weight, rather than on the admissibility, of evidence.”
Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010); see McGregor v.
State, 394 S.W.3d 90, 126 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
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Bishop argues that the State failed to show the beginning of the chain of
custody because it did not present a witness from the hospital. However, medical
records that were introduced without objection indicated that an ice pick was
lodged in C.L.’s skull when he was admitted to the hospital. Further, Sgt. Tolls
testified, also without objection, that he received the ice pick at the hospital from a
person who said it had been removed from C.L.’s head. There was no evidence of
tampering in this case. Because there was proof of the beginning and the end of the
chain of custody, we hold that the trial court correctly admitted the ice pick. See
Stoker, 788 S.W.2d at 10. We overrule this issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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