Dwayne Anthony James v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00165-CR
DWAYNE ANTHONY JAMES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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I. Introduction
In three issues, Appellant Dwayne Anthony James appeals from his
conviction for aggravated assault with a deadly weapon. We affirm.
II. Factual and Procedural Background
James and Christopher Spain worked for Rude Boy Entertainment.
Omololu Akinlolu (Omar), a rapper, testified that Rude Boy Entertainment had not
paid him the $2,000 it owed him for his songs, so he contacted James on
September 17, 2008, and Spain on September 18, 2008. Spain informed Omar
that Rude Boy Entertainment executive Andrew Schuster was nearby and would
deliver partial payment. Omar was subsequently shot in a drive-by shooting,
identified James and Spain as the shooters, and gave police permission to
search his phone.
The State charged James and Spain with commission of the offense, and
they elected to try their cases together. The jury found both James and Spain
guilty of aggravated assault with a deadly weapon and sentenced each to fifteen
years’ confinement. This appeal followed.
III. Exclusion of Evidence
In his first issue, James claims that the trial court’s exclusion of evidence
denied him the right to present a complete defense. In his second issue, James
contends that the trial court abused its discretion by excluding evidence
regarding the contents of the cell phone as hearsay.
A. Trial Objections
While cross-examining Omar, James’s counsel, Kathy Lowthorp,
attempted to elicit testimony that others besides the defendants had a motive to
harm Omar. First, regarding Omar’s testimony that he occasionally stayed at
Schuster’s home in Grand Prairie, Lowthorp asked Omar whether he had heard
that a drive-by shooting had occurred outside Schuster’s home and whether
2
anyone knew that Omar occasionally stayed there.1 Outside the presence of the
jury, the trial court cautioned Lowthorp that she had violated the motion in limine
regarding prior bad acts and that it must not happen again. The State then
objected to this question as hearsay, and the trial court sustained this objection.
Next, Lowthorp asked Omar to discuss the YouTube video that publicly
broadcasted Omar discussing ―beef‖ he had with rappers at a club. The State
objected on the ground of relevance, and the trial court sustained this objection.
Lowthorp then requested permission to make a bill of exception, which the trial
court allowed, and which included the following, in relevant part:
Q. [Lowthorp:] Is there any motive out there for why anyone else
would be mad at you?
A. No.
Q. No one – there is no reason why anyone else out there would be
mad at you in the last few years?
A. Not enough to kill me – try to kill me.
THE COURT: I can’t understand what you’re saying.
A. No.
Q. [Lowthorp:] But the money in this case was enough motive for
someone to want to kill you for $2,000?
A. That’s what they tried to do.
1
The jury subsequently heard testimony from a police officer that a
shooting, possibly committed by Asian rappers, occurred outside Schuster’s
home on August 4, 2008.
3
Q. Okay. That’s not a lot of motive. Do you think that’s a lot to kill
someone over $2,000?
A. That’s why I couldn’t believe that they shot me over $2,000.
Q. On that level, is there anyone else that would have similar types
of motive to want to, you know, retaliate against you for any reason
whatsoever?
A. No, ma’am.
Q. No. And the reason why you had a fight in the club had nothing
to do with any possible motive for any reason to fight you but to fight
you, correct?
A. No, ma’am. We was in the DJ booth, and we just got in an
argument, because our previous beef was already squashed
because we was cool for a long time. We got into it again in the DJ
booth.
Q. What was his beef?
A. It was just some – really behind a chick at the end of the day,
behind a woman, behind a female at the end of the day.
Q. And I’m sorry, didn’t mean to interrupt you. And behind a woman
is not enough reason to want to retaliate against someone.
A. No, ma’am.
Q. So no one has ever been killed before because of a woman?
[State]: Objection to relevance.
THE COURT: Sustained.
Q. [Lowthorp:] This is a very competitive business, isn’t it?
A. Yes, ma’am.
Q. And that there would not be a reason for motive to want to put
harm to you?
4
A. No ma’am, because if you trying to make it in the business, you
ain’t going to try to risk it all.
Q. But these guys here tried to do that; is that right?
A. Yes, ma’am. Yeah, they did.
Q. Okay. So they were willing to risk everything?
A. They did.
Q. And so could someone else; isn’t that possible?
A. They did.
[State]: Objection, calls for speculation.
THE COURT: Sustained.
Q. [Lowthorp:] So why are you Segal?
[State]: Objection to relevance. I don’t think there’s ever been
any testimony that he equated himself to Segal. There was
some mention of YouTube, but he’s never equated himself to
Segal.
THE COURT: I’m going to overrule the objection. You may
answer.
A. I just said that one time on the DVD, because they was talking
about – ugh, I got jumped in the club, got beat up and stuff. I just
said, ―I’m Segal, I know how to protect myself.‖
The next morning, after considering Lowthorp’s bill, the trial court approved
a list of questions for Lowthorp to ask:
THE COURT: . . . Here’s the only questions that are allowed: ―Are
you aware of people that could have a problem with you, as far as
you know, might have a beef with you? Could they be the type of
people that could carry guns?‖
....
5
THE COURT: And ―you are‖ – then your question was, ―The type of
people that would want to get into a fight?‖ That’s allowed.
―Is there any motive out there for why anyone else would be mad at
you?‖ That’s allowed.
No one there – is no – okay. ―Is there a reason why anyone else out
there would be mad at you in the last few years?‖ And that’s allowed
if you alter it to be more close in time. ―Last few years‖ is not
allowed. In the last – during this period of time at the time of the
offense.
The question, ―But the money in this case was enough motive for
someone to want to kill you for $2,000?‖ That’s allowed. The
question is allowed.
―That’s not a lot of motive – do you think that’s a lot of – that’s a lot to
kill someone over $2,000?‖ That’s allowed.
On that level – this question is allowed: ―On that level, is there
anyone else that would have similar types of motive that would want
to retaliate against you for any reason whatsoever?‖
―This is a very competitive business, isn’t it?‖ That question is
allowed.
―And there – and that the competitive business would not be a
reason for motive to want to put harm to you?‖ That’s allowed.
This question is allowed: ―But these guys here tried to do that; is
that right?‖
And then the question: ―Okay. So they were willing to risk
everything?‖
And the question: ―So why are you Segal – Segal?‖2
2
Of these permissible questions, defense counsel did not ask whether
those with motive to harm Omar would be the type to carry guns or to get into a
fight, whether $2,000 is a lot to kill someone over, whether the competitive nature
of the business would be motive for the defendants or someone else to harm
6
Later, Lowthorp sought to establish that Omar had intentionally deleted
text messages, allegedly related to the collection of payment, from his phone. To
this end, Lowthorp offered, and the trial court admitted, Omar’s official T-Mobile
phone records into evidence. To show the disparity between these records and
the information stored on Omar’s phone, Lowthorp called Arlington Police
Detective Huey Nguyen to testify about the information he extracted from Omar’s
phone.
Detective Nguyen explained that phone numbers can be stored in two
different places on a phone—the SIM card and the phone itself. Lowthorp
questioned Detective Nguyen regarding Omar’s SIM card, but when she asked
Detective Nguyen for the dates of the four text messages retrieved from the SIM
card, the State objected on the grounds of hearsay and lack of proper
authentication. The trial court sustained this objection on both grounds.
Outside the jury’s presence, Lowthorp asked the same question about the
text message dates, and the State objected on the ground of relevance. The trial
court sustained the objection as to the messages predating the September 18
shooting but granted Lowthorp permission to ask if the SIM card contained
messages that were sent or received on that date and, if not, why not. The State
also objected on the basis of hearsay to Lowthorp’s proposed question regarding
Omar, whether the defendants were willing to risk everything, or why Omar calls
himself Segal.
7
whether any of the text messages were to or from a particular phone number.
The trial court sustained this objection.
Before the jury, Detective Nguyen testified about the method he used to
record data from Omar’s cell phone itself, as distinct from the SIM card. He used
a Project-a-Phone, which video-recorded the phone’s screen as he scrolled
through the phone’s contents. When Lowthorp offered these video clips, the
State objected to hearsay, and the trial court sustained the objection. Upon
Lowthorp’s request, the trial court admitted the video clips for the record only.
B. Applicable Law
Only relevant evidence is admissible. Tex. R. Evid. 402. Relevant
evidence is 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. However,
even if evidence is relevant, it can be excluded as hearsay. See Tex. R. Evid.
802. Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Tex. R. Evid. 801(d).
An appellate court reviews a trial court’s decision to exclude evidence for
an abuse of discretion and will not reverse a trial court’s ruling unless that ruling
falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d
608, 615 (Tex. Crim. App. 2001) (citing Green v. State, 934 S.W.2d 92, 101–02
(Tex. Crim. App. 1996)); see also Montgomery v. State, 810 S.W.2d 372, 379–80
8
(Tex. Crim. App. 1990). To preserve error from a ruling that excludes evidence,
the proponent must provide the specific purpose for which the evidence is offered
and the reasons why the evidence is admissible. Reyna v. State, 168 S.W.3d
173, 177 (Tex. Crim. App. 2005) (―[I]t is not enough to tell the judge that evidence
is admissible. The proponent, if he is the losing party on appeal, must have told
the judge why the evidence was admissible.‖).
Further, the United States Constitution guarantees criminal defendants ―a
meaningful opportunity to present a complete defense.‖ Crane v. Kentucky, 476
U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986). An erroneous evidentiary ruling
denies a defendant this right when, in pertinent part, the ruling is clearly
erroneous and excludes ―otherwise relevant, reliable evidence which forms such
a vital portion of the case that exclusion effectively precludes the defendant from
presenting a defense.‖ Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App.)
(internal quotation marks omitted), cert. denied, 537 U.S. 949 (2002).
C. Analysis
1. Exclusion of Evidence
In his second issue, James argues that a cell phone’s SIM card and data
saved to a cell phone’s hard drive are not hearsay and should not have been
excluded.
a. SIM Card
In part of his second issue, James claims that the trial court abused its
discretion by excluding testimony about the text message dates as hearsay.
9
However, as the same information was also excluded on relevance grounds,
which James does not address, we do not reach this hearsay argument. See
Tex. R. App. P. 38.1; Marsh v. State, 343 S.W.3d 158, 161–62 (Tex. App.—
Texarkana 2011, pet. ref’d) (stating that an appellant must attack all independent
grounds supporting a trial court’s ruling). Likewise, we do not reach James’s
other hearsay argument about text messages to or from a particular phone
number because he also fails to address the trial court’s relevance ruling on this
question. See Tex. R. App. P. 38.1; Marsh, 343 S.W.3d at 161–62. We overrule
this portion of James’s second issue.
b. Project-a-Phone Video Clips
In the remainder of his second issue, James claims that the trial court
abused its discretion by excluding video clips created by the Project-a-Phone.3
After the trial court sustained the hearsay objection to the videos, Lowthorp
did not specify the purpose for which she was offering the videos or why the
videos were admissible. She merely asked the trial court to admit the videos for
the record and asked Detective Nguyen questions regarding his care, custody,
and control of the videos. Because Lowthorp did not apprise the trial court of the
purpose for which she was offering the videos, it is impossible for us to determine
whether she was offering them for the truth of their content and, thus, whether
3
James claims that the trial court excluded the videos based on the State’s
authentication objection, but this objection related to the SIM card testimony and
not to the Project-a-Phone data.
10
the videos were admissible. See Reyna, 168 S.W.3d at 179 (deciding that the
trial court did not err since the appellant ―did not clearly articulate‖ at trial why the
evidence should be admitted). We overrule the remainder of James’s second
issue.
2. Right to Present a Complete Defense
In his first issue, James argues that he was denied the right to present a
complete defense by the trial court’s ―exclusion of evidence that would have
suggested that a third party may have committed the shooting[.]‖
James contends that he was entitled to elicit testimony that (1) Omar
spoke on YouTube of others wanting to hurt him, 4 (2) a drive-by shooting
occurred at Omar’s part-time Grand Prairie residence less than two months
before the instant shooting, and (3) Omar intentionally deleted cell phone calls
and messages from his phone. According to James, had the trial court permitted
the jurors to hear evidence that other persons wanted, and might have already
tried, to harm Omar, they might have considered the defense’s theory that
someone else committed the offense.
As James concedes, however, the trial court did not preclude him from
eliciting testimony consistent with this theory. Indeed, after considering
Lowthorp’s bill of exception, as set out above, the trial court approved a series of
questions that could have elicited the same information and that were phrased
4
The evidence at issue is merely Omar’s testimony, not the actual
YouTube video, which was never offered into evidence.
11
much like Lowthorp had asked them in her bill. The only apparent limitations on
the questions were (1) counsel could not ask Omar what he said in the YouTube
video, (2) counsel could not ask Omar if he had heard that a shooting occurred
outside Schuster’s home at which Omar occasionally stayed, (3) counsel could
not ask questions regarding motive to hurt Omar except as to motive existing at
the time of the offense, (4) counsel could not ask Omar about a specific fight in a
club, and (5) counsel could not ask Omar to speculate whether someone else
would be willing to ―risk everything.‖
While these rulings limited the questions that Lowthorp could ask, only
Omar’s responses and Lowthorp’s trial tactics limited the defense that James
was able to present. See Wiley, 74 S.W.3d at 405. The first limitation did not
prevent Lowthorp from asking the approved question that, when she asked it in
the bill of exception, elicited testimony related to Omar’s YouTube statements
about who might have ―beef‖ with him. However, defense counsel did not ask
this question before the jury.
The second limitation did not prevent Lowthorp from introducing testimony
about the prior shooting. Indeed, when sustaining the hearsay objection to
Lowthorp’s question to Omar regarding the prior shooting, the trial court
mentioned that the evidence might be admissible another way. Further,
Lowthorp was still able to offer a police officer’s testimony that a drive-by
shooting occurred outside Schuster’s home on August 4, 2008, and that it was
possibly committed by Asian rappers. This, combined with Omar’s testimony that
12
he occasionally stayed at Schuster’s home, allowed the jury to infer that others
might have tried to harm Omar.
The third limitation did not prevent testimony about motive but merely
confined the testimony to relevant time periods during which the existence of
motive would have had some bearing on whether someone else committed the
offense. See Tex. R. Evid. 401; Russo v. State, 228 S.W.3d 779, 798 (Tex.
App.—Austin 2007, pet. ref’d) (―Questions, as here, of when testimony becomes
too remote and, therefore, irrelevant are left to the sole discretion of the trial
court.‖). Moreover, when Omar’s answers regarding others’ motive to harm him
did not divulge what Lowthorp hoped they would, she could have, as the trial
court mentioned, examined other witnesses.
While the fourth limitation prohibited a direct question about Omar’s fight in
the club, it did not altogether forbid testimony about this fight. Lowthorp was still
allowed to ask if people with a motive to harm Omar would be the type to get into
a fight. Additionally, as previously discussed, defense counsel chose not to ask
an approved question that, in the bill of exception, elicited Omar’s testimony
regarding the fight in the club.
Finally, even though the fifth limitation prevented Omar from speculating
about whether someone else might be willing to ―risk everything,‖ Lowthorp was
still permitted to ask whether the defendants were willing to do so. Thus, even
though Omar could not testify about matters outside his personal knowledge, the
13
jury was still able to infer that others would also be willing to ―risk everything.‖
See Tex. R. Evid. 602.
Further, with regard to James’s argument that he was entitled to elicit
testimony that Omar intentionally deleted cell phone calls and messages from his
phone, the trial court’s rulings on the State’s objections to the SIM card data
during Detective Nguyen’s testimony permitted Lowthorp to ask whether any
incoming or outgoing text messages on September 18, 2008, appeared on the
SIM card and, if not, what the possible reasons for this were. During Detective
Nguyen’s testimony, Lowthorp was permitted to show the jury the text messages
listed in T-Mobile’s records for the day of the shooting and to present testimony
that the SIM card showed no text messages on the same day, to allow the jury to
infer that Omar had intentionally deleted these messages.
In sum, the excluded evidence did not form ―such a vital portion of the
case‖ that exclusion effectively precluded James from presenting a defense
because, despite the limitations and exclusions, Lowthorp was still able to
introduce the same or similar evidence to suggest that a third party committed
the offense and that Omar intentionally deleted cell phone calls and text
messages from his phone. See Wiley, 74 S.W.3d at 405. Accordingly, we
conclude that James was afforded his constitutional right to present a complete
defense, and we overrule his first issue. See Crane, 476 U.S. at 690, 106 S. Ct.
at 2146.
14
IV. Ineffective Assistance of Counsel
In his third issue, James claims that his conviction was fundamentally
unfair due to the ineffective assistance of counsel.
A. Standard of Review
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 62–63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. ―In the
15
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.‖ Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption
of reasonable professional assistance, ―any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.‖ Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
B. James’s Trial
Pretrial, the defense attorneys and the trial court agreed that Lowthorp
would go first during each phase of trial but would pass Spain’s witnesses to
16
Spain’s attorney and reserve the right to examine them if she had further
questions.
During voir dire, Lowthorp thanked the trial court for letting James and
Spain try their cases together ―because we believe that we are saving dollars, tax
dollars[,] on this by trying it, since the facts are all the same for both parties, and
we believe that we are not in conflict with each other.‖ When a member of the
venirepanel asked her for clarification about whether these were two separate
cases ―but for cost purposes and efficiencies‖ were being addressed at the same
time, she responded that both defendants were charged with the same offense
arising out of the same incident.
Of the State’s eight witnesses, both defense attorneys cross-examined
three, and Spain’s attorney examined the remaining five by himself.
C. Analysis
First, James asserts that he was prejudiced by Lowthorp’s decision to join
his trial with that of his co-defendant and to pass five out of nine State witnesses
to Spain’s attorney.5 However, in this case, like the majority of cases, the record
is silent and ―cannot adequately reflect the motives behind trial counsel’s
actions.‖ Salinas, 163 S.W.3d at 740. Without more, we must presume that
Lowthorp’s conduct fell within a wide range of reasonable representation. See id.
Indeed, the decision to pass certain witnesses could have been a strategic
5
We count eight State witnesses, three of whom both defense attorneys
cross-examined and five of whom Spain’s attorney cross-examined by himself.
17
decision to allow each attorney to cross-examine those witnesses with whom he
or she felt more comfortable. See Coble v. State, 501 S.W.2d 344, 346 (Tex.
Crim. App. 1973) (overruling the claim that counsel was ineffective for not cross-
examining three of the nine State witnesses because ―[o]ften, the decision to not
cross-examine a witness is the result of wisdom acquired by experience in the
combat of trial‖).
Additionally, notwithstanding Lowthorp’s statement during voir dire that
they were saving tax dollars by trying the cases together, nothing in the record
―adequately reflect[s] the motives behind trial counsel’s actions‖ because nothing
shows that they did not try the cases together for James’s benefit.6 Salinas, 163
S.W.3d at 740. Indeed, when the court of criminal appeals has held that
possessing an economic motive is grounds for an ineffective assistance of
counsel determination, it has only been when the record affirmatively
demonstrates that counsel’s decision could not have been strategic. See Ex
parte Briggs, 187 S.W.3d 458, 467–68 (Tex. Crim. App. 2005) (holding that
counsel’s action—failing to investigate the victim’s medical history because
counsel had not been paid for experts—rendered counsel ineffective when ―the
clear and obvious defense strategy, which [he] recognized, was to focus on [the
victim’s] medical history‖); see also Aldrich v. State, 296 S.W.3d 225, 245 (Tex.
6
James filed a motion for new trial, but he did not raise ineffective
assistance of counsel in it; therefore, we consider only the record before us when
reviewing James’s ineffective assistance of counsel complaint.
18
App.—Fort Worth 2009, pet. ref’d) (op. on reh’g) (holding that counsel’s action—
failing to timely designate experts in part because his client was indigent—
rendered counsel ineffective when the record ―affirmatively reflect[ed]‖ that he
―repeatedly recognized the need for defense experts‖).
In contrast to Briggs and Aldrich, the record in this case does not
affirmatively reflect that Lowthorp’s decision contravened what she recognized
was the appropriate course of action. See Briggs, 187 S.W.3d at 467–68; see
also Aldrich, 296 S.W.3d at 245. To the contrary, the record reveals that the two
cases involved the same facts, the same incident, and two defendants who were
not in conflict with each other. Thus, the record does not foreclose the
conclusion that the decision was a tactical one allowing the attorneys to work
together to present a better defense than either could have presented alone.
Also, James contends that Lowthorp did not remind the jury of the burden
of proof required in a criminal case. However, as long as the jury is given the
correct legal framework for deciding the case, ―[t]he points of the charge that
defense counsel [chooses] to emphasize in argument [is] a matter properly left to
the realm of trial strategy.‖ Tong v. State, 25 S.W.3d 707, 713 (Tex. Crim. App.
2000) (holding that defense counsel was not ineffective for failing to inform the
jury during closing argument that the burden of proof was ―beyond a reasonable
doubt‖), cert. denied, 532 U.S. 1053 (2001). Here, even though Lowthorp did not
reiterate that the standard is ―beyond a reasonable doubt,‖ the trial court’s charge
to the jury contained this standard. Because the trial court’s charge gave the jury
19
the correct legal framework for deciding James’s case, Lowthorp was not
ineffective for choosing not to emphasize the burden of proof. See id.
Next, James claims that Lowthorp did not admonish the jury that the two
defendants were to be considered separately, leaving this to Spain’s attorney.
However, as set out above, Lowthorp addressed this during voir dire. She further
clarified the matter when a venireman specifically asked if the two cases were to
be considered separately.
Finally, James claims that Lowthorp negatively affected the jury’s opinion
of her when the trial court had to correct her in front of the jury for becoming
unnerved and making nonlegal objections. The only instance to which James
directs us, however, occurred outside the jury’s presence and, thus, could not
have prejudiced the jury. We overrule James’s third issue.
V. Conclusion
Having overruled all of James’s issues, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: December 8, 2011
20
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00165-CR
DWAYNE ANTHONY JAMES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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DISSENTING OPINION
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The majority does not address Appellant’s challenge to the trial court’s
exclusion of the cell phone’s SIM card and data saved to the cell phone’s hard
drive because the majority concludes that Appellant did not address the State’s
relevance objection. Respectfully, I cannot agree. The summary of the
argument in Appellant’s brief provides,
This evidence was crucial to [Appellant’s] defense as they would
likely have established that the victim tampered with evidence by
deleting relevant messages. The trial court should have erred on
the side of caution and allowed defense counsel leeway to explore
more extensively the varying testimony, statements and actions of
the victim. Omar’s statements regarding who and [how] many
people were involved in the shooting changed from the day he was
shot through the day he testified in court. The information he gave
police regarding his cell phone activity morphed on the day of trial to
include mysterious technical problems never mentioned to police.
The argument portion of Appellant’s brief contains the following statement:
―Cell phone communication was key in this case.‖ Appellant then reiterates the
actions of Omar and the attempts of the police to determine the contents of the
cell phone and the SIM card. He also reminds this court that when Omar was
questioned by defense counsel, he stated that he had had problems with his
phone deleting data and that he had told the detectives about the problem. At
the same time, Appellant points out, Omar had told defense counsel that on the
day of the shooting, he had been making and receiving calls and text messages
all day and that the phone’s call log worked properly that day.
Appellant’s brief then states:
As this Court opined in Burleson v. State,. . . . ―testifying to missing
information and not to specific content cannot be considered
hearsay.‖ Allowing this information would have permitted defense
counsel to cross reference what information was stored on the
phone when the police received it, as compared to what calls and
text messages [were] actually sent as per the phone records, thus
showing the jury that perhaps some information was removed from
the phone prior to police custody for a purpose.
It is true that Appellant did not cite to boilerplate language explaining what
relevant evidence is, but Appellant clearly explained the relevance, indeed the
importance, of the excluded evidence. I would therefore hold that he does
address relevance.
2
Additionally, the statements of the trial court as well as the discussions of
the lawyers with each other and with the trial court show that the basis of the trial
court’s ruling was not relevance. It is likely that the scholarly and experienced
trial judge concentrated on the hearsay objection to the exclusion of the
relevance objection because she is well aware that a relevance objection is a
general objection that is the same as no objection at all.1
I would address the merits of Appellant’s argument and determine whether
the excluded evidence was inadmissible hearsay. Because the majority does
not, I respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: December 8, 2011
1
See Barnard v. State, 730 S.W.2d 703, 716 (Tex. Crim. App. 1987), cert.
denied, 485 U.S. 929 (1988); Simpson v. State, 507 S.W.2d 530, 534 (Tex. Crim.
App. 1974) (―[I]t is simply and purely irrelevant to this proceeding. Such an
objection is a general objection which is like no objection at all.‖) (internal
quotation marks omitted).
3