Christopher James Spain II v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00167-CR
CHRISTOPHER JAMES SPAIN II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Christopher James Spain II of aggravated
assault with a deadly weapon and assessed his punishment at fifteen years’
confinement. The trial court sentenced him accordingly. In two issues, Appellant
contends that the evidence is insufficient to support his conviction and that the
trial court erred by limiting his cross-examination of the complainant. Because
1
See Tex. R. App. P. 47.4.
we hold that the evidence is sufficient and that the trial court did not abuse its
discretion or violate Appellant’s constitutional right to confrontation by limiting his
cross-examination of the complainant, we affirm the trial court’s judgment.
I. The evidence is sufficient to prove that Appellant shot the complainant
with a firearm.
In his first issue, Appellant contends that the State failed to prove (1) that it
was he and not some third party who committed the offense and (2) that
Appellant used or exhibited a deadly weapon. We note that Appellant was
charged only as a principal and not as a party.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.2
At approximately 7:25 p.m. on the evening of September 18, 2008,
Arlington police officers were dispatched to the scene of a shooting. When they
arrived about five minutes after receiving the dispatch, it was sunny; no street
lamps were on, and no car headlights were in use. The complainant, Omololu
Akinlolu (Omar), was lying face down on the ground, bleeding heavily. The
police saw several holes in Omar’s back, shoulder, and legs, as well as sixteen
shell casings lying nearby in the street. No gun was found at the scene.
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
2
At the scene, Omar appeared to be scared and in pain. Omar told the
police that he knew who had shot him but closed his eyes and “started fading
out” before he could identify the shooter. When asked if there was another
person in the car, Omar replied, “I don’t know who the person was.”
EMS arrived about three minutes after the police. They transported Omar
to John Peter Smith in Fort Worth, where he was treated. None of the bullet
wounds were life-threatening. The police testified that after he was stabilized,
Omar told them that he had been walking, jogging, or running in his
neighborhood, listening to music. His cell phone rang. As he attempted to
answer the phone, shots rang out. Omar ultimately told the police that Appellant,
Dwayne James, and Andrew Schuster were responsible for the shooting and that
he had seen James and Appellant shooting at him. Omar told the police that he
had been shot several times and had fallen down. After he fell, he saw the men
leave the scene in a silver-colored SUV.
The police learned that all four men were associated with a record
company. Omar told them that he had written a song for Appellant and Schuster,
but they still owed him money for it.
Omar testified that on the day of the shooting, he had haggled with James
and Appellant about how much was owed and where the payoff would occur.
Finally, Appellant called Omar back and told him that Schuster was near Omar’s
neighborhood and had some money that he would bring to Omar’s house.
Schuster called Omar and said that he was coming but then texted that he would
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be delayed. After a while, Omar stopped waiting on Schuster and went for a jog.
Omar left his house around 6:45 or 7:00 p.m. He had his cell phone and iPod.
Omar testified that he noticed soon after he began jogging that he had missed a
couple of calls from Schuster. Omar called Schuster back, but he did not
answer. Omar then continued jogging. He felt his phone vibrating, reached for it
with his right hand, heard shots, and a bullet grazed the middle finger of his left
hand as he moved his headphones with his left hand. Omar testified:
I turned around and looked. I seen [Appellant]—I seen [James]
driving, like a truck. He was in the front. He was driving and
shooting out the window, and I seen [Appellant] in the back seat with
the window down, and I seen shots coming from over there, and I
tried to run.
Omar confirmed that Appellant was in the back seat and that shots were
also coming from Appellant’s location. Omar testified that he was shot in the arm
when he turned to run. Then he tried to run left. He testified that then he saw
both James and Appellant shooting at him from outside the vehicle. He was
between them. He finally fell and pretended to be dead. He testified that he
heard what he thought were twenty-five to thirty shots after he fell. Omar
remembered telling the police that he knew who had shot him, that he saw one
gun “for sure,” and that he had seen flashes from the other gun. He confirmed
that he had told the police that Appellant and James had shot him.
Omar testified that the shooting caused him pain and that Appellant and
James had placed him in fear of and threatened him with imminent bodily injury.
4
Omar identified both James and Appellant as the shooters in pretrial photo
lineups, and he also identified them both in court.
A forensic examiner testified that the sixteen recovered casings, twelve
from one manufacturer and four from another, were likewise fired from two
different firearms.
Applying the appropriate standard of review, we hold that the jury could
have found beyond a reasonable doubt that Appellant had shot Omar with a
deadly weapon. We therefore overrule Appellant’s first issue.
II. The trial court did not abuse its discretion or violate Appellant’s right to
confrontation by limiting the cross-examination of Omar.
In his second issue, Appellant contends that “[t]he [t]rial [c]ourt also erred
by denying [him] the right to fully cross-examine [Omar]” and that “[m]any
questions were not allowed that would have shown the jury that there were
others in the rap community with the motive and ability to harm [him].” We note
that Appellant and James were tried together and that each had his own lawyer.
Despite an earlier order granting the State’s motion in limine, James’s trial
counsel asked Omar about a shooting that occurred at a Grand Prairie residence
where he had frequently stayed. The Grand Prairie shooting happened about six
weeks before Omar’s shooting. The State objected. On voir dire by James’s
defense counsel, Omar testified that he had no knowledge of the Grand Prairie
shooting (before the State’s objection was sustained on hearsay grounds); that
people who had a “beef” with him would not be the type of people that could
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carry guns, although they would want to fight; that there was no motive for
anyone else out there to be mad at him, or at least not mad enough to try to kill
him; and that a fight he had in a club soon after his shooting had no connection
to his shooting because it was just over a woman (despite his earlier testimony
before the jury that the attacker in the club was a friend of both Appellant and
James). Omar also testified in response to James’s defense counsel’s questions
on voir dire that the rap music industry is very competitive but that that was not a
motive for anyone besides the defendants to harm him, and he explained why he
had referred to himself as “Segal” in a YouTube video. The trial court did not
allow Omar to answer, even in the proffer,
Talk to me about those other rappers that have been around
in the industry prior to you guys, the younger group, here coming
into the industry.
Talk to me about the ones that you made the video about,
those rappers. What w[ere] those beefs about?
Tell me about . . . the YouTube video, that you had a beef with
some guys at the club, tell me about that.
When asked whether he would like to ask any questions of Omar on voir
dire, Appellant’s defense counsel declined. After the proffer, James’s defense
counsel argued that the Confrontation Clause under both the federal and state
constitutions allowed her to cross-examine Omar and establish “any motives or
reasons for things and explanations on this.” Regarding the Grand Prairie
incident, she stated that she believed that “there could have been someone else
out there that was interested in shooting this man.”
6
In response to the State’s relevancy objection and the trial court’s inquiry,
“[A]nything?”, Appellant’s defense counsel argued,
I believe there is a relevancy, because this, in fact, is . . . the witness
that we need to tie this together to . . . develop our theory. There’s
been a video made where he does talk about the beefs he’s got
going on, talking—as a matter of fact, talking about some specific
other rappers he’s having problems with, and we believe that . . . as
a defense, we have a right to put on another theory and to develop
our theory with whatever witnesses we have, and this was the
witness we can develop that theory through.
The following dialogue then occurred:
THE COURT: Yeah, but it still has to be legally admissible,
correct?
[DEFENSE COUNSEL]: Correct.
THE COURT: And he has specifically said that there wasn’t
anybody else that . . . would have a reason to do anything like this. I
mean, he said that. So perhaps there is other witnesses, and then
you call him back in, but at this point, you know, he’s denied
anything that would . . . amount to—based on his testimony.
[DEFENSE COUNSEL]: Your Honor, I believe he actually
said he had a beef with some other people. He later said, if I
remember correctly, that he did not believe the beef was of such a
nature that they would have shot him. But he did, in fact, have
another beef with some other people.
I believe that we should be able to explore that. And likewise,
with the shooting at the house, you know, this is a house that he
resided at and stayed at, and it was, in effect, a drive-by shooting.
THE COURT: Except that the question was hearsay. So I’m
not saying—you know, perhaps there is another way to get this
evidence in, but that doesn’t mean that you don’t have to follow the
rules of evidence.
On the following day of trial, the trial judge clarified her ruling:
7
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?” . . . And . . . 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. . . . “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.
. . . 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.
. . . [T]his 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 a 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. . . ?”
Appellant’s defense counsel asked Omar only a few of these questions when he
cross-examined him later that same day. James’s counsel did not ask any.
Neither party called any other witnesses regarding the YouTube video or the fight
at the club. Neither party introduced the YouTube video.
On the following day, Appellant’s defense counsel notified the trial court
that he intended to call a Grand Prairie officer who investigated the Grand Prairie
shooting to testify merely about the damage to Schuster’s vehicle, the vehicle
that other evidence indicated had been used in Omar’s shooting. The State did
not object.
8
The officer testified that she responded to a call on August 4, 2008, and
made a report. She further testified that a beige Ford Expedition owned by
Schuster had been damaged. Specifically, “[t]he rear window was shot out” and
“[t]he right rear passenger door had a bullet hole.” On cross-examination, the
officer testified that the VIN number of the beige Ford Expedition involved in the
August 4, 2008 shooting matched the VIN number of the Ford Expedition
described as silver in State’s Exhibit 78, a purchase order naming Angelica
Schuster as the buyer. The State had offered State’s Exhibit 78 as evidence that
Schuster’s Ford Expedition had been used in Omar’s shooting.
The Grand Prairie officer also testified that Schuster had suggested that
some Asian rappers might have been behind the Grand Prairie attack. Neither
defendant followed up this line of questioning.
Appellant did not specifically object to the exclusion of any of the proffered
evidence on the basis that it infringed on his right to cross-examination, nor does
he direct us to any place in the record where he explicitly adopted James’s
objection. Further, we have found no indication in the record that he explicitly
adopted James’s objection. Generally, these absences from the record would
result in our holding that an appellant had forfeited his complaint.3 But here, it is
clear that both defendants wanted the proffered evidence admitted, both argued
3
See Tex. R. App. P. 33.1; Lerma v. State, 679 S.W.2d 488, 498 (Tex.
Crim. App. 1982); Martinez v. State, 833 S.W.2d 188, 191 (Tex. App.—Dallas
1992, pet. ref’d).
9
for its admission but raised distinctive arguments, and both defendants’
arguments were resolved in a joint hearing. Given the state of the record and the
law, we cannot comfortably conclude that the trial court did not view the
defense’s objections regarding the proffered evidence as joint.4 We therefore
address Appellant’s issue on the merits.
The Sixth Amendment right of confrontation includes the right to cross-
examine witnesses to challenge their credibility and expose possible biases, self-
interest, or motives in testifying.5 A trial court has broad discretion to limit the
scope and extent of cross-examination.6 A trial court may restrict cross-
examination based on concerns of harassment, prejudice, confusion of issues, or
endangering the witness or when the questioning is repetitive or of only minimal
relevance.7
The record shows that the defense did not delve into the matters allowed
by the trial court as fully as permitted, whether with Omar, the Grand Prairie
4
See Dixon v. State, 928 S.W.2d 564, 565 (Tex. Crim. App. 1996)
(reversing this court’s opinion holding that error was not preserved by Dixon’s
general objection because the trial court treated the objection as an adoption of
the defense witness’s counsel’s objection).
5
Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974); Hammer
v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
6
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435
(1986); Hammer, 296 S.W.3d at 561.
7
Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Hammer, 296 S.W.3d at
561 n.7.
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police officer, or other witnesses that could have been called but were not.
Further, excluded testimony in the voir dire of Omar did not reveal that his
answers before the jury would have been relevant. Additionally, the record
contains evidence that the YouTube video and fight at the club happened after
Omar’s shooting, and the record reveals no relevance of those events to Omar’s
shooting. The record also contains plenty of other evidence from which the jury
could have judged Omar’s credibility, and Appellant’s defense counsel aptly
emphasized that evidence, including the conflicts between Omar’s testimony and
his statements to the police. Consequently, we cannot conclude that the trial
court abused its discretion or violated Appellant’s right to confrontation by limiting
defense counsel’s questioning of Omar. We overrule Appellant’s second issue.
III. Conclusion
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 23, 2011
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