Kory Nelson Turner v. State , 413 S.W.3d 442 ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00438-CR
KORY NELSON TURNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Kory Nelson Turner appeals his conviction and twelve-year sentence for
murder. He brings nine points: (1) the trial court violated his right to a public trial
by excluding his family members from voir dire; (2–3) the trial court erred by
refusing to allow testimony regarding prior acts of violence by the victim and the
victim’s character for violence; (4) the trial court erred by refusing to strike
testimony regarding the victim’s never having been violent in the past; (5–7) the
trial court erred by refusing to allow appellant to present evidence of his peaceful
character under rule 404 and to rebut the State’s evidence of his aggressive
behavior, thereby preventing appellant from presenting a complete defense
under the Sixth and Fourteenth Amendments; (8) the trial court erred by refusing
to allow appellant to present evidence that a key State’s witness was subject to
having been influenced by his arrest for family violence; and (9) the trial court
erred by refusing appellant’s timely requested jury instruction on criminally
negligent homicide. We reverse and remand.
Background
David (Dave) Castello, a friend of appellant’s, invited another friend of his,
Leonard E. “Lenny” Keith, Jr., to a party at appellant’s house. Appellant, Dave,
and Keith were all drinking at the party. Early the next morning, after at least one
confrontation with Keith about appellant’s wife, appellant shot and killed him. A
jury convicted appellant of murder.
Right to Public Trial
Appellant contends in his first point that the trial court violated his right to a
public trial by refusing to allow some of the prospective jurors to sit in the jury box
during voir dire to make room for appellant’s family in the gallery. The State
contends that appellant failed to preserve his appellate argument for review.
Preservation of Error
The following exchange occurred at trial:
THE COURT: All right. Outside the presence of the jury, it is my
understanding that the Defense wishes to have family members
present during the jury selection; is that correct?
2
MR. MOORE: Judge, his wife and his brother are here, and I’ve
asked them to be here today for the express purpose to see if
anybody on the panel knows them. I think his father-in-law is also
here. I don’t -- in making an inquiry of the Court, it appears that the
entire courtroom seating area is going to be full, so I have requested
that the Court seat some of the potential jurors in the jury box so that
I can have room to get at least those three people in the room.
THE COURT: Well, I’m going to deny that request, but I will allow
you to have them come in if you would -- for the purpose of
introductions.
MR. MOORE: We’ll do it that way, Judge.
THE COURT: I’ve got no problem with that.
MR. MOORE: I object to the Court’s not making arrangements
allowing them to be present for the voir dire examination.
THE COURT: Well, unfortunately, we are bringing in chairs to
accommodate the large panel, and so I’m going to overrule your
request.
MR. MOORE: Note my exception.
THE COURT: I understand. [Emphasis added.]
The Sixth Amendment guarantees to the accused in all criminal
prosecutions the right to a “public trial”; this fundamental right was extended to
defendants in state criminal prosecutions through the Fourteenth Amendment.
See Herring v. New York, 422 U.S. 853, 856–57, 95 S. Ct. 2550, 2552–53
(1975); In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507 (1948). Although the
violation of the right to a public trial is structural error––that is, error that does not
require an appellant to prove specific prejudice to obtain a new trial, Steadman v.
State, 360 S.W.3d 499, 510 & nn.40–41 (Tex. Crim. App. 2012)––a complaint
3
that the right to a public trial was violated is nevertheless subject to procedural
error preservation rules, Levine v. United States, 362 U.S. 610, 618–19, 80 S. Ct.
1038, 1043–44 (1960); United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006),
certs. denied, 549 U.S. 1360, 550 U.S. 969 (2007); Brandley v. State, 691
S.W.2d 699, 707 (Tex. Crim. App. 1985); see also Lilly v. State, 365 S.W.3d 321,
327–28 (Tex. Crim. App. 2012) (refusing to address appellant’s right to public
trial claims under the Texas constitution and code of criminal procedure because
appellant failed to brief those arguments and authorities separately).
To preserve error for appeal, a party must have “stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific
grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). The
court of criminal appeals has held that
[a]s regards specificity, all a party has to do to avoid the forfeiture of
a complaint on appeal is to let the trial judge know what he wants,
why he thinks himself entitled to it, and to do so clearly enough for
the judge to understand him at a time when the trial court is in a
proper position to do something about it. Of course, when it seems
from context that a party failed effectively to communicate his desire,
then reviewing courts should not hesitate to hold that appellate
complaints arising from the event have been lost. But otherwise,
they should reach the merits of those complaints without requiring
that the parties read some special script to make their wishes
known.
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The objection
must merely be sufficiently clear to provide the trial judge and opposing counsel
an opportunity to address and, if necessary, correct the purported error. Ford v.
4
State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). In making this
determination, an appellate court should consider the context in which the
complaint was made and the parties’ understanding of the complaint at the time.
Id.
Appellant clearly objected to the exclusion of members of the public, his
family, from the trial court proceedings. Although he did not give the trial court
any constitutional authority for his objection to the exclusion of those family
members, he made his desire for their inclusion clear even though he agreed to a
less desirable alternative, i.e., their being introduced to the jury, over his
objection. This case is similar to Clarke v. State, in which the court of criminal
appeals held that the appellant’s argument in his motion for new trial––that the
prosecutor had deliberately allowed false material to be included in the
presentence investigation report (PSI)––was the same substantively as his
argument on appeal; the appellant “added more whistles and bells on appeal, but
the tune was the same.” 270 S.W.3d 573, 580–81 (Tex. Crim. App. 2008).
In Clarke, the appellant entered an open plea of guilty to sexually
assaulting his fourteen-year-old step-cousin. Id. at 575. At the punishment
hearing, the State proffered, and the trial court admitted, a PSI, in which Clarke’s
aunt said that “she had an intuition that perhaps the [appellant’s] sister had a
similar experience with her brother, but was afraid to relate the experience to
anyone.” Id. At the beginning of the hearing, when the trial judge asked if
anyone had a problem with the PSI, Clarke’s counsel said that Clarke had no
5
problems with the PSI “except for the ‘conjecture on behalf of the victim’s
mother.’” Id.
Clarke filed a motion for new trial, asserting that the PSI “contained totally
unfounded allegations from the Complainant’s mother . . . that [Clarke] had
molested his own sister.” Id. at 576. He argued at the motion for new trial
hearing that “based on the affidavit by the complainant’s mother, the prosecutor
was aware that the implication in the PSI was false and that she ‘[t]ook no steps
to alert the Court or defense counsel that this exculpatory evidence––that there
was exculpatory evidence, namely the falsity of this extraneous offense.’” Id. at
577. On appeal, Clarke raised the following issue: “The prosecutor deliberately
deceived the trial court during the punishment phase by allowing evidence
concerning an alleged extraneous offense known by the prosecutor to be false,
to remain in the presentence report, in violation of the Fourteenth Amendment of
the United States Constitution and Article 1, Section 19 of the Texas
Constitution.” Id. at 578. The Fourteenth District court of appeals, with Justice
Mirabal dissenting, held that Clarke did not preserve this argument for appeal
because
(1) he did not timely make a prosecutorial misconduct claim in his
written motion for new trial or in any amendment to that motion, and
(2) even if he had raised a prosecutorial misconduct claim at the
hearing itself, he still waived any constitutional claim on appeal
because he did not present any constitutional argument to the trial
court at the hearing.
Id. (footnotes omitted).
6
The court of criminal appeals reversed, holding that Clarke had preserved
his complaint, even though it was not set forth in his written motion for new trial,
because he “argued at the new-trial hearing that the prosecutor was aware that
the implication in the PSI was false and that the prosecutor had a duty to inform
defense counsel and the trial court that the allegation was false.” Therefore, his
complaint at trial and on appeal were “essentially the same” even though he did
not cite the Fourteenth Amendment; Article I, section 19 of the Texas
constitution; Brady; Giglio; or the Mooney-Pyle-Napue line of cases until appeal.1
Id. at 579–80.
Although here appellant gave the judge a specific reason––that he wanted
to see if anyone on the venire panel knew the family members––he also
specifically objected to their exclusion from the proceedings. Because the
substance of appellant’s objection at trial and his argument on appeal are
“essentially the same,” we conclude and hold that appellant preserved his
argument for appeal. Id. at 580, 583 (“He has gussied [his complaint] up with
legal authority, but the underlying claim is precisely the same one.”); see also
Presley v. Georgia, 130 S. Ct. 721, 722 (2010) (reviewing merits when counsel
1
U.S. Const. amend. XIV; Tex. Const. art. I, § 19; Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763 (1972); Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959); Pyle v.
Kansas, 317 U.S. 213, 63 S. Ct. 177 (1942); Mooney v. Holohan, 294 U.S. 103,
55 S. Ct. 340 (1935).
7
objected to the exclusion of the public from the courtroom during voir dire, in
reference to the appellant’s uncle).
Applicable Law
Upon objection to the closure of a proceeding, the party seeking to close it
must advance an overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect that interest, the trial court must
consider reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 48,
104 S. Ct. 2210, 2216 (1984); Steadman, 360 S.W.3d at 504. The exclusion of
even a single person from court proceedings can violate a person’s Sixth
Amendment right to a public trial. See Presley, 130 S. Ct. at 722. Additionally,
the right extends to voir dire proceedings. Id. at 724.
A trial court’s findings regarding closure must be specific; findings that are
too broad and general will not support closure. Waller, 467 U.S. at 48, 104 S. Ct.
at 2216; Steadman, 360 S.W.3d at 504. The United States Supreme Court has
admonished that “[t]rial courts are obligated to take every reasonable measure to
accommodate public attendance at criminal trials.” Presley, 130 S. Ct. at 725.
“[C]ircumstances justifying closure ‘will be rare . . . and the balance of interests
must be struck with special care.’” Steadman, 360 S.W.3d at 505 (quoting
Presley, 130 S. Ct. at 724).
Here, the trial court’s stated reason for excluding appellant’s family
members from the voir dire was that the courtroom was already crowded due to
8
the large venire panel that had been called in the case. In Presley, the trial court
gave the same reason, but it also added at the motion for new trial hearing that it
was not comfortable seating family members in the same area as prospective
jurors. 130 S. Ct. at 722. The Court concluded that
[t]rial courts are obligated to take every reasonable measure to
accommodate public attendance at criminal trials. Nothing in the
record shows that the trial court could not have accommodated the
public at Presley’s trial. Without knowing the precise circumstances,
some possibilities include reserving one or more rows for the public;
dividing the jury venire panel to reduce courtroom congestion; or
instructing prospective jurors not to engage or interact with audience
members.
Id. at 725. Accordingly, the Court held that the trial court had not made findings
specific enough to warrant excluding the appellant’s uncle from voir dire. Id.
Here, nothing in the record shows that the trial court’s ruling met the
requirements of Waller: the trial court did not state an overriding interest other
than space concerns,2 did not consider reasonable alternatives that might have
accommodated appellant’s family members, and did not make adequate findings
to support its decision to exclude appellant’s family members. See Presley, 130
2
It appears that the trial court was asked to accommodate only three
additional people in the courtroom. Given that the state and local governments
have an obligation to provide adequate facilities to the judicial branch so that it
may properly carry out its constitutionally-created functions, the trial court could
have properly exercised its inherent authority to seek out an alternative location
or arrangement of space that would have accommodated the presence of only
three additional persons in the courtroom. See, e.g., Tex. Const. art. II, § 1, art.
V, §§ 7, 8; Vondy v. Commissioners Court of Uvalde Cnty., 620 S.W.2d 104, 110
(Tex. 1981) (“The legislative branch of this state has the duty to provide the
judiciary with the funds necessary for the judicial branch to function
adequately.”).
9
S. Ct. at 725; Waller, 467 U.S. at 48–49, 104 S. Ct. at 2216–17; Steadman, 360
S.W.3d at 506–10. Thus, we sustain appellant’s first point and hold that he is
entitled to a new trial.3 See Steadman, 360 S.W.3d at 510.
Evidentiary Rulings
Although appellant is entitled to a new trial on his first point, we
nevertheless address appellant’s remaining points, as they involve matters that
will likely reoccur in a new trial. See Davis v. State, 144 S.W.3d 192, 201 (Tex.
App.––Fort Worth 2004, pet. ref’d) (op. on reh’g).
Evidence of the Victim’s Character, Propensity, and Past Violent Acts
In his second and third points, appellant contends that the trial court erred
by excluding Patience Castillo’s testimony regarding prior acts of violence
against her by the victim, Keith, and testimony of her opinion of Keith’s character
for becoming aggressive and violent when he was drinking. In his fourth point,
3
We ordinarily abate when a trial court’s findings are insufficient; however,
higher courts have held that when a trial court’s findings on trial closure are
insufficient, the remedy is a new trial. See Presley, 130 S. Ct. at 725; Lilly, 365
S.W.3d at 329, 333 (“Generic findings will necessarily invalidate a closure . . . .”);
see also Tex. R. App. P. 44.4 (providing that court of appeals must direct trial
court to correct any error that prohibits the proper presentation of a case in the
court of appeals). In Steadman, the State filed a presubmission motion to abate
for more detailed findings, which the court of appeals granted. 360 S.W.3d at
501. Despite the trial court’s detailed additional findings––which included that
the space was narrow, the trial was emotionally charged, and having family
members of the defendant so close to the panel would make the panel members
uncomfortable and heighten security concerns––the court of criminal appeals
held that they were insufficient to justify excluding the family members from the
courtroom. Id. at 501–02, 510–11. Accordingly, we do not believe that
abatement is the proper remedy here. See, e.g., Lilly, 365 S.W.3d at 329, 333.
10
appellant complains about the trial court’s admission of––and refusal to strike––
Dave’s testimony that he had never known Keith to be violent in the past.
According to appellant, Castillo’s testimony was admissible under rule 404(a)(2)
as opinion evidence and also as evidence of specific acts to rebut Dave’s
testimony. Tex. R. Evid. 404(a)(2).
Appellant proffered Castillo’s testimony outside the jury’s presence; she
testified on voir dire that when she was seventeen or eighteen years old, she
moved in with Keith for a couple of months. She did not know how old Keith was
at the time other than that he was older than twenty-one. At first, Keith was good
to her, but he started drinking more and became “real easy to pick fights with.”
She saw him engage in a lot of fights. Eventually, she decided to terminate the
relationship. When she tried to leave, Keith grabbed her arm hard enough to
leave a bruise, and he pushed her down on the couch. After she left, Keith kept
calling her, driving by her job, and trying to contact her. He made “ugly” phone
calls to her parents’ home to which she had returned. Castillo eventually had to
call the police about Keith’s behavior. Although Castillo did not hear anything
else from Keith after she made the police report, Keith was charged with and
pled guilty to harassment. These events occurred in 1996. Appellant’s trial took
place in September 2010.
The State objected on “relevance and under 403.” The State’s main
argument was that the events testified to by Castillo had occurred over fourteen
years before the trial, and twelve years before the shooting, when Keith was in
11
his mid to late twenties. The trial court sustained the State’s objection after
stating the following:
Well, the problem I’m having is I have a three-month period of
a relationship between your proposed witness and the deceased.
But then there’s 12 years that passes with nothing that we can offer
or be substantiated as to whether or not this continued. And then
we have a situation to where he shows up and there’s -- nobody
knows anything about him at the party. That’s what I’m wrestling on.
When asked to reconsider his ruling, the trial judge declined, indicating that his
ruling was based on rule 403.
During the State’s case-in-chief, on direct, Dave had testified that he knew
Keith from being involved in Cub Scouts with their sons. Because Dave’s son
was sixteen at the time of trial, he estimated that he had known Keith for the past
seven to eight years before the trial. Dave testified that Keith had never met
appellant or his wife, Amy, before the night of the shooting.
The defense recalled Dave during its case-in-chief. After asking him about
discrepancies between his testimony at trial and his statement to police after the
shooting, consisting mainly of Dave’s failure to initially tell the police that Amy
had been willingly and openly kissing Keith that night, appellant’s counsel asked
Dave,
Q. You also indicated on that oral statement that you gave to the
police that you’d never seen [appellant] be violent before?
A. Correct.
Q. In all the time that you’ve known him?
A. Correct.
12
The State then asked Dave on cross, “[Keith] either, you’d never seen him be
violent either?,” and Dave answered, “No, sir.” Appellant did not object.
Accordingly, we must overrule appellant’s fourth point complaining about the
admission of, and the trial court’s failure to strike, this evidence of Keith’s
character. See Tex. R. App. P. 33.1(a)(1); Lown v. State, 172 S.W.3d 753, 758
(Tex. App.––Houston [14th Dist.] 2005, no pet.).
Appellant nevertheless contends that he should have been allowed to
rebut Dave’s testimony that he had never known Keith to be violent with Castillo’s
testimony that when she knew him, Keith was easy to pick fights with when he
had been drinking. Appellant argues that the evidence is admissible under rule
404(a)(2). Tex. R. Evid. 404(a)(2). Under rule 404(a)(2), a defendant may offer
evidence of the victim’s character trait for violence to demonstrate that the victim
was, in fact, the first aggressor, but he may do so only through reputation and
opinion testimony under Rule 405(a). Tex. R. Evid. 404(a)(2), 405(a); Ex parte
Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2010). Evidence of specific bad
acts is admissible, however, to impeach a character witness’s testimony that the
victim was peaceful. Miller, 330 S.W.3d at 620–21. Here, the trial court ruled
that regardless of the admissibility of Castillo’s testimony under any relevance
13
rules, the evidence was nevertheless inadmissible under rule 403.4 Tex. R. Evid.
403.
A rule 403 balancing test includes the following factors: (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent’s
need for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim.
App. 2006); Alami v. State, 333 S.W.3d 881, 889 (Tex. App.––Fort Worth 2011,
no pet.). The rules of evidence favor the admission of relevant evidence and
carry a presumption that relevant evidence is more probative than prejudicial.
Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522
U.S. 832 (1997).
Because of the remoteness of Keith’s acts and subsequent conviction to
which Castillo testified, her testimony had less probative value to rebut Dave’s
testimony about his more recent observation of Keith’s character. For purposes
4
The State contends that appellant failed to challenge the trial court’s 403
ruling on appeal; however, the argument is fairly included as a subsidiary issue in
appellant’s second through fourth points. See Tex. R. App. P. 38.1(f); Davis v.
State, 268 S.W.3d 683, 695 n.1 (Tex. App.––Fort Worth 2008, pet. ref’d).
14
of impeachment of a character witness’s testimony about the peaceful nature of a
victim, an act, conviction, or event “must have occurred at a time sufficiently
recent to have some bearing on the present credibility of the witness.” Miller, 330
S.W.3d at 620–21 & n.26 (quoting Sinegal v. State, 789 S.W.2d 383, 387 (Tex.
App.––Houston [1st Dist.] 1990, pet. ref’d)). This is because there is “a
presumption that one is capable of rehabilitation and that his character has
reformed over a period of law abiding conduct.” Morris v. State, 67 S.W.3d 257,
263 (Tex. App.––Houston [1st Dist.] 2001, pet. ref’d); cf. Tex. R. Evid. 609(b)
(providing that conviction greater than ten years old generally may not be used to
impeach witness). Thus, the trial court did not abuse its discretion by excluding
Castillo’s testimony under rule 403. See Miller, 330 S.W.3d at 620–21 & n.26
(noting that questioning the character witness with “Did you know” or “Have you
heard” questions would not be proper under rule 403 because of remoteness of
victim’s conviction and citing rule 403 cases on remoteness); Moore v. State, 143
S.W.3d 305, 314–15 (Tex. App.––Waco 2004, pet. ref’d) (op. on reh’g). We
overrule appellant’s second and third points.
Exclusion of Opinion Testimony On Appellant’s Character for Peacefulness
In his fifth through seventh points, appellant contends that the trial court
abused its discretion by refusing to allow him to present evidence of his peaceful
character.
During the State’s direct examination of Jennifer Mathews, she testified
that she saw Keith push appellant that night, and she told her husband that she
15
did not believe appellant would start a fight with Keith. On cross-examination,
appellant’s counsel asked Mathews if she had ever known appellant to be a
violent person, and she said she did not know him “in that manner” but that she
had never seen him be physically violent. She also said that his bark was worse
than his bite. On redirect, the State asked about her opinion of his character,
and she said, appellant “is probably more verbally harsh than I would be able to
tolerate.” She also testified that he got angry quickly and agreed that he tended
to “run his mouth” a lot. Appellant then sought to admit testimony from a good
friend that he had never known appellant to be violent or aggressive. The State
objected on relevance grounds, and the trial court sustained the objection.5
Generally, character evidence is not admissible to show that a person
acted in conformity with a character trait on a particular occasion. Tex. R. Evid.
404(a); Melgar v. State, 236 S.W.3d 302, 306 (Tex. App.––Houston [1st Dist.]
2007, pet. ref’d). But an accused in a criminal case is permitted to introduce
evidence of a specific good-character trait to show that it is improbable that he
committed the charged offense when that character trait is relevant to the
offense. Tex. R. Evid. 404(a)(1)(A); Melgar, 236 S.W.3d at 306–07. A pertinent
trait is “one that relates to a trait involved in the offense charged or a defense
5
The State contends that appellant failed to preserve this argument for
appeal by failing to give the trial court a reason he wanted the evidence admitted
in response to the State’s objection. But the witness’s statement, and the trial
court’s ruling on the State’s objection, were sufficient to preserve the point for
review. See Tex. R. App. P. 33.1(c); Edwards v. State, 178 S.W.3d 139, 146
(Tex. App.––Houston [1st Dist.] 2005, no pet.).
16
raised.” Melgar, 236 S.W.3d at 307. Thus, in a prosecution for a crime of
violence, the defendant’s character for being peaceful is pertinent because
evidence of peaceful character makes it less likely that the defendant committed
the crime. Id. In a murder case, the accused’s reputation for peacefulness, or
nonaggressive behavior, is the appropriate inquiry. Wheeler v. State, 67 S.W.3d
879, 882 n.2 (Tex. Crim. App. 2002); Melgar, 236 S.W.3d at 307. This type of
evidence can be elicited via opinion or reputation testimony, or both. Tex. R.
Evid. 405(a); Melgar, 236 S.W.3d at 308.
Here, appellant was accused of murder, and he sought to introduce
evidence of his nonviolent character through a friend who had known him for
almost thirty years. Because appellant was entitled to elicit such testimony, the
trial court abused its discretion by excluding it.6 See Tex. R. Evid. 404(a)(1),
405(a); Melgar, 236 S.W.3d at 308. Because we must reverse and remand the
case because of our disposition of appellant’s first point, we need not perform a
harm analysis.7 See Tex. R. App. P. 47.1. We sustain appellant’s fifth point.8
6
The State contends that appellant’s questions asked for answers that
would necessarily include specific instances of conduct; however, the “[h]ave you
known” questions were broad and could therefore have encompassed the
witness’s opinion and knowledge of appellant’s reputation, both of which are
admissible under rule 405(a). Tex. R. Evid. 405(a); see Johnson v. State, Nos.
05-93-01960-CR, 05-93-01961-CR, 1997 WL 428047, at *4 (Tex. App.––Dallas
July 31, 1997, no pet.) (not designated for publication).
7
Because we need not consider harm, it is irrelevant that appellant was
able to elicit from Dave that Dave had never known him to be violent. See Valle
v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error [if any] in the
17
Exclusion of Testimony Suggesting Dave Castello Subject to Influence
In his eighth point, appellant claims that the trial court abused its discretion
by refusing to allow him to introduce evidence that Dave was subject to having
been influenced in his testimony by his arrest for family violence.
Dave had admitted, and the jury heard, that he had not originally told the
police after the shooting about seeing Keith and Amy openly kissing at the party.
But he said that he did not do so then because he did not want to “put [his]
friends’ dirty laundry out there.” He told appellant’s counsel that he had met with
the prior prosecutor on the case about a year before trial but he did not know the
specific date. Appellant’s counsel then asked, “That’s when you got arrested for
a felony offense, family violence and having previously been convicted of family
violence?” The State asked to approach the bench; after a brief conference, the
trial court allowed appellant and the State to question Dave on voir dire.
Appellant’s counsel asked Dave on voir dire whether he had “decided that
[he] needed to tell the police about all of this stuff” that he had seen between
Keith and Amy around the same time he was arrested for family violence. Dave
answered, “That’s the first time I was contacted by any of the police. I kept
waiting for -- why it was taking so long.” He also said his talking to the prior
admission of evidence is cured where the same evidence comes in elsewhere
without objection.”).
8
Moreover, because the evidence was admissible under evidentiary rules,
we need not address appellant’s sixth and seventh points, arguing that it was
admissible for other reasons. See Tex. R. App. P. 47.1.
18
prosecutor was not related to the arrest. The prosecutor at trial asked Dave
whether the State had offered him any kind of deal in exchange for his testimony;
he said no and that his arrest had nothing to do with appellant’s case. He also
said that his family violence case was dismissed. The State objected to the
admission of the testimony under rules 608 and 609.
The following exchange occurred:
THE COURT: Well, I don’t know what [appellant’s counsel] may know, but
the jury has heard that he has been arrested. We can do it one of two
ways. We can come back in and I can give them an instruction to
disregard, or we can do exactly the same thing we just did in the presence
of the jury, because either way, I mean, it’s going to establish one way or
the other that --
[THE STATE]: That he got arrested.
THE COURT: He got arrested, so it’s whichever way y’all want to do.
The problem I’m trying to negotiate with this is the one person that
the State may want to -- need to rebut this is laying in a hospital bed right
now dying.
[THE STATE]: And that would be [the prior prosecutor assigned to the
case and to whom Dave had originally talked].
THE COURT: Exactly. And I’m a little concerned about putting the State
in a position now of not being able to rebut that. Is there any indication as
to who the prosecutor was that dismissed the case?
[APPELLANT’S COUNSEL]: It’s -- I object. It’s what’s in his mind, it’s not
what’s in the prosecutor’s mind or anybody else’s mind. It’s whether or not
he feels some need to tailor his testimony in a particular way.
THE COURT: Well, if that’s the case, he’s already said, I got no benefit
out of it.
[APPELLANT’S COUNSEL]: And they’re entitled to ask him those
questions in the presence of the jury about it if they want to do it.
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[THE STATE]: That case was no billed by the grand jury, Judge.
....
THE COURT: . . .
The jury has already heard that he was arrested on August --
sometime in August of 2009. I’m not going to let you go any further.
....
[THE STATE]: We’d ask the Court to instruct the jury to disregard the last
question and answer.
THE COURT: Denied.
Appellant contends that Dave’s testimony should have been admitted
before the jury because it shows a motive for testifying in such a way that would
“curry favor” with the State. According to appellant, the charges against Dave
provide a “logical impetus” for his suddenly remembering in his discussions with
the prior prosecutor that he had seen Keith and Amy kissing that night when he
did not initially give those facts to the police.
The possible animus, motive, or ill will of a prosecution witness who
testifies against the defendant is never a collateral or irrelevant inquiry, and the
defendant is entitled, subject to reasonable restrictions, to show any relevant fact
that might tend to establish ill feeling, bias, motive, interest, or animus on the part
of any witness testifying against him. Billodeau v. State, 277 S.W.3d 34, 42–43
(Tex. Crim. App. 2009). “Nonetheless, the trial judge retains wide latitude to
impose reasonable limits on such cross-examination ‘based on concerns about,
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among other things, harassment, prejudice, confusion of the issues, the witness’s
safety, or interrogation that is repetitive or only marginally relevant.’” Irby v.
State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 904
(2011) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431,
1435 (1986)). Thus, unless the inquiry is addressing an issue that relates to the
charged offense or the credibility of the witness, “allowing a party to delve into
the issue beyond the limits of cross[-]examination wastes time and confuses the
issues.” Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009); Walker
v. State, 300 S.W.3d 836, 845 (Tex. App.––Fort Worth 2009, pet. ref’d). A trial
court has the discretion to limit testimony that may confuse the issues or be only
marginally relevant. Walker, 300 S.W.3d at 845. Accordingly, a trial court
abuses its discretion when it denies a defendant the opportunity “to show a
prototypical form of bias on the part of the witness” through cross-examination.
Id. at 845 (quoting Felan v. State, 44 S.W.3d 249, 254 (Tex. App.––Fort Worth
2001, pet. ref’d)).
To cross-examine a witness about pending charges or a similar
“vulnerable relationship” with the State, a proponent must show a logical
relationship between the charges and the witness’s potential bias or prejudice.
Irby, 327 S.W.3d at 147–49.
Here, appellant was attempting to show that Dave had a motive to testify
favorably for the State, either because he was attempting to ingratiate himself
with the prior prosecutor assigned to the case, who had interviewed Dave around
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the time he was arrested for family violence (and was then unable to later change
his story), or because he did so in exchange for the dismissal of his charges.
Dave testified on voir dire that the prosecutors on the two cases were not the
same; he also testified that he did not have a deal with the State to give favorable
testimony. During the discussion outside the jury’s presence, the prosecutor
informed the judge that the case had been no-billed by the grand jury; thus, it
seems unlikely that Dave would have testified untruthfully in favor of the State for
that reason. Moreover, the jury had already heard appellant’s counsel question
whether Dave had first come forward with the detail of Keith and Amy kissing
around the same time as his family violence arrest, and the trial court denied the
State’s request for an instruction to disregard. Thus, we conclude and hold that
appellant failed to show the required logical relationship between the family
violence charge and his testimony and that the trial court did not abuse its
discretion by refusing to allow appellant to further question Dave about the
connection between his arrest and subsequent testimony in this case. See id.;
Gilmore v. State, 323 S.W.3d 250, 265–66 (Tex. App.––Texarkana 2010, pet.
ref’d). We overrule appellant’s eighth point.
Failure to Charge on Criminally Negligent Homicide
In his ninth point, appellant contends that the trial court erred by failing to
include an instruction on criminally negligent homicide in the jury charge. While
discussing the jury charge at trial, appellant’s counsel stated, “I think the conduct
in the case of [appellant] testifying that he pointed a loaded firearm in the
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direction of the victim . . . raises that issue, and so we request criminally
negligent homicide.” The trial court denied the request.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be
evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There
must be some evidence from which a rational jury could acquit the appellant of
the greater offense while convicting him of the lesser-included offense. Id. The
court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Criminally negligent homicide is a lesser-included offense of murder.
Thomas v. State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985); Torres v. State,
343 S.W.3d 297, 305 (Tex. App.––Eastland 2011, pet. ref’d). Here, appellant
testified that the gun discharged accidentally. Accidental discharge alone,
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however, does not raise the issue of criminally negligent homicide. Thomas, 699
S.W.2d at 850; Torres, 343 S.W.3d at 305. Thus, we must examine the facts
and circumstances to determine if appellant was unaware of the risk created by
his conduct. Thomas, 699 S.W.2d at 850; Torres, 343 S.W.3d at 305.
Appellant testified that he was in the garage with Amy when he saw Keith
“coming at” him. Keith was two to four feet away from them, and he scared
appellant. Appellant said as soon as he saw Keith out of the corner of his eye,
he flinched and the gun went off. He testified that he did not intend to shoot at or
even point the gun at Keith, but he must have pointed it at Keith because when
the gun went off, Keith was hit. On cross-examination, appellant testified that
everything happened so quickly, that when he first saw Keith he was close to
him, and that he just reacted when he saw Keith out of the corner of his eye.
According to appellant, Keith must have seen Amy because he was walking
toward her. Appellant had shot the nine-millimeter gun in the past and said the
trigger pull was not heavy to him because “[i]t’s the only thing I’ve ever known.”
Appellant did admit, however, that he intentionally brought the gun outside.
The State points to evidence that appellant had owned the gun for twenty
years, that he owned three guns and kept trigger locks on all of them, that he
kept one round in the chamber of the gun he used that night for home protection,
and that when he took out the gun that night, he had to retrieve the trigger key
from the nightstand and unlock the trigger lock, as evidence that appellant was
aware of the risk of injury or death that could occur as a result of his conduct.
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The evidence shows that appellant knew the gun was loaded, bypassed the
safety constraints he usually used in storing the gun, and was familiar with the
gun’s operation. Thus, the evidence does not raise a question as to whether
appellant was unaware of the risk created by his conduct in carrying a loaded,
unlocked firearm outside of his house while under the influence of alcohol and
after a heated, physical altercation with a man who had made physical advances
toward his wife; the evidence does not therefore show that if appellant was guilty,
he was guilty only of criminally negligent homicide. Accordingly, we conclude
and hold that the trial court did not err by denying appellant’s timely requested
instruction. See Thomas, 699 S.W.2d at 852; Torres, 343 S.W.3d at 305–06.
We overrule appellant’s ninth point.
Conclusion
Having sustained appellant’s first and dispositive point, we reverse the trial
court’s judgment and remand this case to the trial court for a new trial.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
PUBLISH
DELIVERED: August 9, 2012
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