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Gerald Edward
MARSHALL
Name
TDCJ
Number
Date
of Birth
Marshall, Gerald Edward
999489
07/11/1982
Date
Received
Age (when Received)
Education Level
12/08/2004
22
12
Date
of Offense
Age (at the Offense)
County
05/11/2003
20
Harris
Race
Gender
Hair
Color
Black
Male
Black
Height
Weight
Eye
Color
6' 01"
212
Brown
Native
County
Native
State
Prior
Occupation
Bell
Texas
Janitor / Laborer
Prior
Prison Record
None
Summary of incident
On 05/11/2003 in Harris County,
Texas, Marshall and 3 codefendants entered a What-a-burger to
commit a robbery.
During the course of the robbery Marshall
shot a white male employee in the head resulting in his death.
Hervey, J., delivered the opinion for a
unanimous Court.
O P I N I
O N
Appellant and several other people were involved in a robbery
during which the victim was shot once in the face and killed. A
jury convicted appellant of capital murder as a result of this
event. The trial court sentenced appellant to death pursuant to
the jury's answers to the special issues submitted at the
punishment phase of trial. Finding the thirteen points of error
raised by appellant's counsel to be without merit, we affirm the
trial court's judgment.
(1)
It is
necessary to set out in some detail the evidence presented in this
case because appellant claims in point of error three that the
evidence is factually insufficient to support a finding that he
shot the victim. The jury charge authorized the jury to convict
appellant of capital murder only if it found that appellant
himself shot the victim (there was no parties instruction in the
charge).
The record
reflects that around 4:00 a.m. on May 11, 2003, appellant, Ronald
Worthy and Kenny Calliham were involved in a robbery at a
Whataburger restaurant during which a mentally retarded
Whataburger employee was shot at close range through the left eye
and killed. The Whataburger drive-through window was open, but the
doors to the Whataburger were locked. The police were unable to
enter the Whataburger through these doors when they responded to a
robbery in progress call.
The evidence
shows that appellant, Worthy and Calliham pulled up to the
Whataburger drive-through window in a car driven by Calliham. The
car belonged to the boyfriend of appellant's sister (Julia). One
of the car's occupants entered the Whataburger through the drive-through
window armed with a pistol. A Whataburger employee (Marsh) saw
this armed assailant exit the back seat of the car and come
through the drive-through window. Marsh hid behind some boxes in a
storeroom where he could "see and hear."
Marsh
testified that the victim ran out the back door and slammed it
against the assailant who was chasing the victim. Marsh heard the
assailant hit the door several times while the victim attempted to
keep it shut from the outside. Marsh also heard the assailant tell
the victim to open the door. Marsh heard the back door open. Marsh
testified that the assailant and the victim went out the back door
which then shut and locked.
Marsh did not hear anything for "about two minutes" at which time
he "heard a noise inside the building again." Marsh then heard the
same assailant inside the Whataburger close to the back door tell
the victim three times that he would kill him if the victim did
not produce the key to the safe.
(2) Marsh heard
the victim tell the assailant twice that he did not have the key
to the safe. Marsh testified that the assailant shot the victim
just after the assailant threatened him the third time. Marsh
could only see the back part of the victim and [v]ery little of
the [assailant]."
Marsh also
testified that he never heard or saw a second assailant inside the
Whataburger and that "the person who shot [the victim] was the
same person [he] saw come through the window." Marsh testified:
Q. [STATE]:
I want to ask you this. And I want you to think hard about it. To
your knowledge, besides that one man who came through [the drive-through
window] with the gun in his hand, did anybody else come into the
Whataburger from what you could hear and from what you could see?
A. [MARSH]:
I did not hear nobody [sic] that came inside and I did not see
nobody came [sic] inside, only one person I saw inside the
building.
* * *
Q. Is there
any doubt in your mind that the person who shot [the victim] was
the same person who you saw come through the [drive-through]
window?
A. That's
the same person I saw coming through the [drive-through] window
and shot [the victim].
Another
Whataburger employee (Ketchum) hid in a freezer when he saw the
assailant enter the Whataburger through the drive-through window.
Ketchum testified that the assailant was wearing a baseball cap
and had a red bandana "cowboy style" over his mouth. Ketchum also
testified that the assailant had a silver gun. Marsh testified
that he thought the assailant was wearing a black bandana and no
hat. Marsh testified that the assailant had a shiny gun.
Appellant's girlfriend (Woods) testified that she saw appellant
with a silver gun about three hours after the victim's murder.
Appellant admitted in a statement to the police that Woods saw him
with a silver gun about five hours before the victim's murder. The
police recovered a fired bullet and a shell casing from the crime
scene. The murder weapon was never recovered.
The police
believed that the robbery was an "inside job" also involving the
Whataburger night-manager (Love), who knew appellant from having
worked with him at another fast-food restaurant. Evidence was
presented that Love was supposed to be at the Whataburger during
the robbery and give the robbers about $7,000 without anyone
getting hurt. Love, however, left the Whataburger before the
offense was committed. When questioned by the police on the
afternoon of May 11th, Love denied any involvement in the offense.
Love's cell phone records showed numerous calls to Julia's
apartment before the victim's murder. Appellant told Woods shortly
before the offense that he planned to rob some Whataburgers, and
Woods saw appellant with a napkin that had Love's first name and
phone number written on it.
The day
after the offense, the police received a Crimestoppers tip that
two persons nicknamed "Bo" and "Tank" were involved in the offense
and that "Bo" was the shooter. The police investigation revealed
that appellant went by the nickname of "Tank." The police
initially believed that a person whose last name was Robinson was
the "Bo" mentioned in the Crimestoppers tip. The police showed
Marsh a photospread containing appellant's picture and a
photospread containing Robinson's picture. Marsh did not pick
anyone out of the photospread containing appellant's picture.
Marsh immediately picked Robinson out of the photospread
containing his picture.
The police,
however, eventually eliminated Robinson as a suspect. One of the
homicide investigators (Moreno) believed that there was a "strong
resemblance" between Robinson and Worthy who also went by the
nickname of "Bo." The police arrested appellant, Worthy, Calliham
and Love who were all charged with capital murder. The police
recovered the car that was used in the offense at the home of
appellant's aunt.
At trial, Marsh identified appellant as the one he saw come
through the Whataburger drive-through window. Marsh testified that
he meant to pick appellant's picture (not Robinson's) when the
police showed him the two photospreads. The record reflects that
Marsh never identified appellant before trial as the person he saw
come through the Whataburger drive-through window.
(3)
Calliham
testified that Worthy was in the front passenger seat and
appellant was in the back seat when he drove the car up to the
Whataburger drive-through window. Calliham claimed at trial that
he was unaware of any planned robbery until appellant went inside
the Whataburger through the drive-through window with a silver
pistol in his hand. Calliham testified that he did not see where
Worthy went but it seemed like Worthy was chasing him as he drove
off into a parking lot. Calliham also testified that he could see
Worthy behind the car when he heard a single gunshot.
Calliham
also testified that he made a deal with the State to plead no
contest to an aggravated robbery charge with no adjudication and
receive ten years "probation" in exchange for his testimony. On
cross-examination, Calliham testified that he previously told the
police that appellant had a black pistol and that he did not know
where Worthy went when appellant went inside the Whataburger
through the drive-through window. Calliham also testified on
cross-examination that he previously told the police that, after
he heard a gunshot, he saw both appellant and Worthy with pistols
running back to the car from the area of the drive-through.
A county
jail inmate (Green) testified that in August 2003 appellant told
him that he was the one who shot the victim. Green was facing 25
years to life on pending charges. He made a deal with the State
for a year in the county jail on these charges in exchange for his
testimony.
The State also presented evidence that appellant initially told
the police that he was not involved in the offense. Appellant
later admitted to the police (homicide investigator Scales) that
he, Calliham and Worthy were involved in the offense. Appellant
claimed, however, that his involvement in the offense was minimal,
limited to watching the back door with a brown gun with no bullets
in it, while only Worthy went inside the Whataburger through the
drive-through window and killed the victim.
(4)
Appellant
also told Scales that he was in the back seat of the car when it
pulled up to the Whataburger drive-through window. Scales
testified at trial:
Q. [DEFENSE]:
One thing I would like to make clear. On page 15, near the bottom,
when you [Scales] are trying to establish who is sitting where in
the car, [appellant] told you that he was in the passenger seat-I
am sorry, passenger back seat; is that not correct?
A. [SCALES]:
Correct.
Q. About a
line or so below there you say, Who was in the driver's seat? And
[appellant] said [Worthy].
A. Correct.
Q. At all
other times did he not just tell you that [Calliham] was driving?
A. He did
refer that [sic], yes.
Q. So, with
that-if you know, was that simply a mistake on his part or he
didn't understand the question or something wrong? Because he
never tried to convince anyone that [Worthy] was driving other
than that.
A.
Apparently not, but right there you are right.
Q. But he
always said [Calliham] was driving?
A. I think
so.
An audiotape
of appellant's interview with Scales (State's Exhibit 45) reflects
that appellant told Scales that he was in the back seat and that
Worthy and Calliham were in the front seat with Calliham driving
when the car pulled up to the Whataburger drive-through window.
Q. [SCALES]:
You go to the drive-thru, ok. [Calliham's] driving. . . .was there
any other vehicles in the drive-thru with you or?
A. [APPELLANT]:
Uh-uh.
Q. About
what (inaudible) what time of night?
A. It was
about 5:00.
Q. Early,
early morning.
A. Early in
the morning.
Q. Like 4:00
or so, ok. Between 4:00 or 5:00 am on May 11th which is
Sunday morning. Saturday night, Sunday morning. You pull through
the drive-thru, where are you in the car?
A. Uh, I was
in like the passenger back seat.
Q. The back
seat.
A. But I was
behind the passenger seat. He was in the driver's seat.
Q. Who was
in the driver's seat?
A. [Worthy].
Q. Ok and [Calliham's]
driving. Then, what happens when you come up to the window? The
drive thru window.
A. He got
out and he came up to the window.
Q. Who's
this, [Worthy]?
A. Yeah, and
he jumped through there and I see the people going.
Marsh
testified that, when the car pulled up to the drive-through window,
there was only one person in the back seat and that this was the
person who came inside the Whataburger through the drive-through
window.
Q. [STATE]:
Could you see anybody in the car?
A. [MARSH]:
I could see two persons was in front of the car.
Q. Where
were they in the car?
A. I think
they was in the front seat of the car.
Q. Was there
somebody in the driver's side?
A. There was
a driver and-driver on one side and someone on the other side.
Q. Both in
the front seat?
A. Both was
in the front seat.
Q. Are you
sure now-this is important-that neither of the two people in the
front seat are the people who came through the window?
A. No, sir,
they didn't come out the car, from what I see, they didn't move
from the car. They were still in the car.
Q. So, as
far as you could tell, when the person came through the window
there were still two people in the front seat?
A. In the
car, yes, sir.
In his brief,
appellant merely lists 65 claimed deficiencies in the testimony of
various witnesses and asserts without explanation or argument that
these deficiencies greatly outweigh the evidence of his guilt. He
claims that after conducting a factual sufficiency review, "this
Court will conclude that the jury verdict is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and
unjust."
This Court has adjusted a direct appellate court's power to review
the evidence for factual sufficiency "in line with civil practice."
See Watson v. State, S.W.3d slip op. at 21 (Tex.Cr.App.
No. PD-469-05, delivered October 18, 2006). Evidence, that
rationally supports a verdict of guilt beyond a reasonable doubt
under the Jackson v. Virginia legally sufficiency
standard,
(5) can still be
factually insufficient when the verdict "seems clearly wrong or
manifestly unjust" or "against the great weight and preponderance
of the evidence." See Watson, slip op. at 21 (internal
quotes omitted). The legal and factual sufficiency standards both
require the reviewing court to consider all of
the evidence. See Watson, slip op. at 20-21. The
difference between the two standards is that the former requires
the reviewing court to defer to the jury's credibility and weight
determinations while the latter permits the reviewing court to
substitute its judgment for the jury's on these questions "albeit
to a very limited degree." See Watson, slip op. at 22,
25; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App.
2000) (factual-sufficiency review requires reviewing court to
afford "due deference" to a jury's determinations); Clewis v.
State, 922 S.W.2d 126, 135 (Tex.Cr.App. 1996) (factual-sufficiency
review requires "deferential standards of review applied" to jury
verdicts). A factual-sufficiency review is "barely distinguishable"
from a Jackson v. Virginia legal sufficiency review.
See Watson, slip op. at 22-23; In re King's Estate,
244 S.W.2d 660, 662 (1952) (not simple to describe the
intellectual process to be followed by the reviewing court "to
specify just how a verdict may be supported by evidence of
probative force and at the same time be on all the evidence
clearly unjust").
We decide
that the evidence is factually sufficient to support a finding
that appellant shot and killed the victim. Two witnesses-Calliham
and Green-provided testimony that supports this finding. The jury
was in the best position to evaluate the credibility of these
witnesses, and our factual-sufficiency jurisprudence still
requires an appellate court to afford "due deference" to the
jury's determinations. See Johnson, 23 S.W.3d at 9
(factual-sufficiency review requires reviewing court to afford "due
deference" to jury's determinations); see also Watson,
slip op. at 25 (very nature of factual-sufficiency review allows
reviewing court to sit as thirteenth juror "albeit to a very
limited degree"); Clewis, 922 S.W.2d at 135..
More importantly, both Calliham and Marsh testified that when the
car pulled up to the drive-through window, there was only one
person in the back seat and that this was the person who came
through the drive-through window and the only person who went
inside the Whataburger. It is significant that appellant
corroborated this testimony in his second statement to the police
by placing only himself in the back seat of the car that pulled up
to the drive-through window and by also saying that only one
person went inside the Whataburger. It is also significant that
Marsh (who heard the assailant tell the victim to open the back
door and who also heard the assailant tell the victim to produce
the key to the safe just before he shot the victim) testified that
"the person who shot [the victim] was the same person [he] saw
come through the window."
(6) Other
evidence was presented placing a gun, similar to the one used to
kill the victim, in appellant's possession before and after the
offense. The evidence is factually sufficient to support a finding
that appellant himself shot and killed the victim. On this record,
we cannot conclude that the jury's verdict seems clearly wrong and
manifestly unjust or against the great weight and preponderance of
the evidence. See Watson, slip op. at 21. Point of error
three is overruled.
In point of
error one, appellant claims that Article 37.071, Tex. Code Crim.
Proc., is unconstitutional under Apprendi v. New Jersey,
530 U.S. 466 (2000), because Article 37.071 does not require the
State to prove insufficient mitigating circumstances beyond a
reasonable doubt. In point of error two, appellant makes a related
claim that Article 37.071 is unconstitutional because it places
the burden on the defense to prove that there are mitigating
circumstances to warrant a sentence less than death. This Court
has resolved these claims adversely to appellant. See Perry v.
State, 158 S.W.3d 438, 446-48 (Tex.Cr.App. 2004), cert.
denied, 126 S.Ct. 416 (2005); Blue v. State, 125 S.W.3d
491, 500-01 (Tex.Cr.App. 2003); cert. denied, 543 U.S.
853 (2004). Points of error one and two are overruled.
In points of
error four and five, appellant claims that the trial court
erroneously admitted into evidence his second statement to the
police because there was no valid waiver of his right to remain
silent (point four) and because it was made in response to a false
promise from Scales that appellant would be charged only with
aggravated robbery (point five). The record reflects that
appellant initially told the police in response to police-initiated
questioning that he was not involved in the offense. Appellant
later re-initiated contact with the police through his girlfriend
Watts and gave his second statement to the police (Scales) because
he wanted to tell his "side of the story."
The
transcript of this appellant-initiated interview with Scales
reflects that appellant answered "no sir" when Scales first asked
him if he wanted to waive his rights. Scales immediately asked the
question again and appellant responded "yes sir" (that he wished
to waive his rights).
Q. [SCALES]:
Ok. Um, we're here in reference to a homicide that occurred at
1718 West Loop North at the What-A-Burger on the 11th
of May 2003. [Appellant], I'm going to read you your rights again.
We've talked to you recently . . . uh, you had called [Woods] your
girlfriend, is that correct?
A. [APPELLANT]:
(inaudible)
Q. And she
called me and said that you wanted to re-initiate another
interview. Is that correct?
A.
(inaudible)
Q. Ok, you
have to speak up cause it's all recorded. All right, so you re-initiated
the second interview and here we are, is that correct?
A. Yes, sir.
Q. Ok,
through your girlfriend [Woods]. Is that correct?
A. Yes sir.
Q. Ok. I'm
going to read your rights to you one at a time. You have the right
to remain silent not make any statement at all. And any statement
you make may be used against you and probably will be used against
you at your trial. Do you understand this right?
A. Yes sir.
Q. Any
statement you make may be used as evidence against you in court,
do you understand this right?
A. Yes sir.
* * *
Q. Ok, do
you voluntarily waive your rights and agree to talk to us again?
A. No sir.
Q. No, the
question is, do you voluntarily, on your own free will, waive your
rights and agree to talk to us?
A. Yes sir.
Q. OK, yeah,
so you said no, but you didn't understand the question. So, I'll
restate it one more time. You re-initiated the interview . . . .
A. Yeah.
Q. Because
you talked to [Woods], cause you want to tell us your side of the
story.
A. Yeah.
Q. Ok, so I
want to ask you one more time to clear it up. Do you voluntarily,
on your own free will, agree to waive your rights and talk to us?
You have to say yes.
A. Yes sir.
Q. Ok,
alright. OK. So you called [Woods], whom I've interviewed, and, uh,
you wanted to tell your side of the story about the events of May
11th at the What-A-Burger.
A. Yes sir.
Scales
testified at the suppression hearing that he never promised
appellant that he would be charged only with aggravated robbery.
Scales also testified at the suppression hearing that, after
appellant's initial response of "no sir" to the question of
whether appellant wanted to waive his rights, he continued
questioning appellant for the purpose of clarifying whether
appellant really wanted to waive his rights since it was appellant
who re-initiated the police interview.
Q. [DEFENSE]:
And after having just read him all of his rights, you said, Okay,
do you voluntarily waive your rights and agree to talk to us again;
do you not?
A. [SCALES]:
M-h'm.
Q. And what
was his response?
A. No, sir.
Q. And why
did you not terminate the interview at that point in time?
A. Well, he
contacted us to talk to us. So, I restated the question again to
make sure he understood.
Q. And did
you make some type of assumption that he was not invoking his
rights because of that?
A. No, I
don't think so, because he contacted us to reinitiate the
interview.
Q. You
understand he has a right to change his mind at any time; do you
not?
A. Correct.
Q. How did
you know that he was not just changing his mind about wanting to
talk to you when he said, No, sir, in answer-when you asked him if
he wanted to voluntarily waive his rights?
A. That's
why I asked him again, to make sure that was true.
Q. When you-do
you know what your function becomes should a person refuse to
voluntarily waive his rights?
A. Yes.
Q. What are
you supposed to do?
A. Stop the
interview, if that's what they really want to do, yeah.
Q. You asked
him a simple question and he gave you a direct answer when he said,
No, sir; did he not?
A. I asked
him again to make sure that he understood what I was asking. We do
that, yes.
The record
supports a finding that Scales did not promise appellant that he
would be charged only with aggravated robbery. In addition,
federal constitutional law does not prohibit the police from
clarifying whether an arrestee wishes to waive his rights under
circumstances like those here. Assuming that appellant
unambiguously invoked his right to remain silent, Scales did not
proceed to question appellant regarding the offense. Cf. Davis
v. United States, 512 U.S. 450, 458 (1994) (suspect who has
unambiguously invoked his right to counsel cannot be questioned "regarding
the offense" unless an attorney is present); see Dowthitt v.
State, 931 S.W.2d 244, 257 (Tex.Cr.App. 1996) (police must
cut off questioning when accused unambiguously invokes right to
remain silent).
In addition,
under the circumstances here where appellant re-initiated contact
with the police to tell his side of the story, the trial court
could reasonably have found that any invocation by appellant of
his right to remain silent was ambiguous thereby permitting Scales
either to continue questioning "regarding the offense" or to stop
this questioning and clarify whether appellant really wanted to
remain silent. Cf. Davis, 512 U.S. at 459 (suspect must
invoke his right to counsel "sufficiently clearly that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney") and at 461-62 (when
suspect makes ambiguous request for counsel, police may, but are
not required, to clarify whether he actually wants an attorney);
Dowthitt, 931 S.W.2d at 257. Points of error four and
five are overruled.
In point of
error six, appellant claims that the trial court erroneously
denied his motion for a mistrial when the jury heard extraneous
offense evidence at the guilt-phase of trial. Woods testified at
the guilt-phase that she and appellant started "disagreeing" when
appellant told her "that he was going to start robbing." The trial
court denied appellant's motion for a mistrial after instructing
the jury to disregard this remark.
Q. [STATE]:
When did you-all start disagreeing?
A. [WOODS]:
When he start telling me that he was going to start robbing-
[DEFENSE]:
Your Honor, I object to that as an extraneous offense.
[THE COURT]:
Sustained as to the form of the question.
[STATE]: I
am talking specifically about the Whataburger case that we are
talking about?
[DEFENSE]:
Before we go any further, Judge, I also ask that the jury-the
Court instruct the jury to disregard.
[THE COURT]:
The jury will disregard the last response of the witness.
[DEFENSE]:
And I would also ask for a mistrial, Your Honor.
[THE COURT]:
That's denied.
Woods then
testified without objection that appellant told her about four
days before the offense that he planned to rob the Whataburger
involved in this offense. Woods also testified without objection
that appellant told her that he planned to rob three Whataburgers.
Assuming that Woods' complained-of testimony about appellant's
plan "to start robbing" was a reference to an extraneous offense,
the trial court's instruction to disregard was sufficient to cure
any harm or prejudice from this event. See Young v. State,
137 S.W.3d 65, 69-70 (Tex.Cr.App. 2004) (mistrial not required
where prejudice is curable by instruction to disregard);
Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Cr.App. 2000) (instruction
to disregard usually cures prejudice from reference to extraneous
offense). Point of error six is overruled.
In point of
error seven, appellant claims that he was denied his Sixth
Amendment right of confrontation under Crawford v. Washington,
541 U.S. 36 (2004), when the trial court allowed "a different
medical examiner other than the one who actually performed the [victim's]
autopsy and who wrote the [autopsy] report to testify against the
appellant at trial." The record reflects that Dr. Lester performed
the victim's autopsy under the supervision of Dr. Narula. At the
time of appellant's trial, Dr. Lester was working in Memphis and
Dr. Narula was retired.
The State
called Dr. Milton to testify about the victim's cause of death
based on Dr. Lester's autopsy report (State's Exhibit 69). After
the State laid the predicate for the admission of the autopsy
report as a business record, the defense requested a hearing
outside the jury's presence. This hearing centered on appellant's
objections to various autopsy photographs that the State intended
to introduce into evidence. At the conclusion of this hearing, the
defense offered to stipulate to the victim's cause of death and it
also objected that it was "being denied an opportunity to
cross-examine the real witness" under Crawford.
[DEFENSE]:
Your Honor, at this time we would offer to stipulate that the [victim]
died of a penetrating gunshot wound of the head, close-range type,
and to the description of both the external and internal
examination, which should be sufficient.
[STATE]: We
choose not to stipulate, Your Honor.
[THE COURT]:
All right. Your objection to the report? Do you have an objection
to the report?
[DEFENSE]:
No, Your Honor.
[THE COURT]:
Okay. State's Exhibit 69 is admitted as well.
[DEFENSE]:
Yes, we do, Judge. One quick one under Crawford v. State
(sic), we are objecting that we are not-being denied an
opportunity to cross-examine the real witness-Crawford v.
Washington.
[THE COURT]:
So noted. Overruled.
We decide
that any constitutional error in admitting the victim's autopsy
report was harmless beyond a reasonable doubt because there was no
factual dispute about the victim's cause of death with appellant
even offering to stipulate to this. See Tex. R. App. Proc.
44.2(a) (appellate court must reverse a judgment based on
constitutional error unless the appellate court determines beyond
a reasonable doubt that the error did not contribute to the
conviction or punishment). We also note that the victim's autopsy
report had no bearing on the central issue in the case which was
whether appellant was the one who shot the victim. Point of error
seven is overruled.
In point of
error eight, appellant claims that the trial court erroneously
permitted the State to introduce Worthy's out-of-court statement
to a county jail inmate (Meyer) that Worthy was not the shooter.
As part of its case, the defense presented the testimony of county
jail inmate Meyer. Meyer testified on direct examination by the
defense that he assisted Calliham and Worthy in preparing
affidavits stating that Calliham had no involvement in the offense
and that Worthy was involved in the robbery but not the shooting.
Q. [DEFENSE]:
First of all, [Calliham and Worthy], they always blamed everything
on [appellant]; right? The shooting?
A. [MEYER]:
They blame [sic] the shooting on [appellant], yes, sir.
Q. And they
claimed that they had nothing to do with this robbery and did not
know it was even going to occur in their affidavits; isn't that
correct?
A. I believe
[Calliham] claimed this by himself.
Q. That what?
A. That [Calliham]
claimed that he didn't know that was going on, that there was a
robbery; [Worthy] didn't claim that.
Q. [Worthy]
what now?
A. [Worthy]
didn't claim that he didn't know it.
Q. That's
what I said. They both said they didn't know, right, that a
robbery was going to occur?
A. [Worthy]
knew a robbery was going to occur.
Meyer also
testified on direct examination by the defense that some people in
jail look for information to sell and that Calliham and Worthy "always
blamed everything on [appellant], the shooting, the robbery."
Q. [DEFENSE]:
And there are people who look for information in the jail so they
can sell it; right?
A. [MEYER]:
I mean that's a-that would be a possibility.
* * *
Q. [DEFENSE]:
And no question they do to you-at least they always blamed
everything on [appellant], the shooting, the robbery, him being
covered in blood?-They I am talking about, Calliham and Worthy?
A. [MEYER]:
That's correct.
On cross-examination
by the State, Meyer testified over appellant's hearsay objections
that Worthy "in no way, shape or form, cleared himself" in the
affidavit that Meyer helped Worthy prepare.
Q. [STATE]:
Worthy, in no way, shape or form, cleared himself. He's basically
confessing to capital murder in these affidavits; isn't he?
A. [DEFENSE]:
Object to him-to this as hearsay, Your Honor.
[THE COURT]:
Overruled.
Q. I mean,
isn't he-he's saying I am part of a capital murder, but I am not
the shooter, right?
[DEFENSE]:
Objection to hearsay and leading.
[STATE]:
This is cross-examination.
[DEFENSE]:
This is not cross-examination.
[THE COURT]:
It is overruled.
Q. Isn't
that right?
A. Yes, sir.
Q. He's
saying I was a part of a plan to do an inside robbery at a
Whataburger that went crazy and that defendant shot somebody;
right?
A. That's
correct, sir.
Appellant
claims that the trial court erroneously admitted Worthy's out-of-court
statement to Meyer that Worthy was not the shooter. The State
claims, among other things, that appellant opened the door to this
evidence through its direct examination of Meyer that Worthy "blamed
everything" on appellant and that the State could properly respond
to this on cross-examination of Meyer with Worthy's out-of-court
statement to Meyer that Worthy did not "blame everything" on
appellant by taking some responsibility for the robbery but not
the shooting.
We decide
that any error in the admission of the complained-of evidence was
harmless since the portions of the record set out above also
indicate that appellant brought out essentially the same evidence
during his direct examination of Meyer. See Leday v. State,
983 S.W.2d 713, 716-18 (Tex.Cr.App. 1998) (improper admission of
evidence is harmless when other such evidence is admitted without
objection). Point of error eight is overruled.
In point of
error nine, appellant claims that the "trial court erred in
refusing to admit testimonial evidence in the form of an excited
utterance which supported appellant's defense." The record
reflects that the trial court disallowed appellant from
questioning officer Moreno about a report prepared by another
officer (Triplett). Appellant claimed that the out-of-court
statements in this report showed that the murder weapon in the
Whataburger offense was used about two weeks before in another
offense by some unknown person at an apartment complex where
Worthy lived. The State made hearsay and relevancy objections to
the admission of this evidence. The trial court excluded this
evidence ruling that its probative value was substantially
outweighed by the danger of unfair prejudice or confusion of the
issues. We set out relevant portions of the record.
[DEFENSE
LAWYER #1]: A brief summary of the event, Judge, would be-and I
need to turn the page over here for these addresses.
On May the
27th of '03, which would be two weeks to the date.
[DEFENSE
LAWYER #2]: April 27th.
[DEFENSE
LAWYER #1]: Sorry. April 27th, two weeks prior to this
offense, there was a shooting that occurred at 13503 Northborough.
That shooting involved a lady-two ladies and a man who were in a
car. They were driving through the parking lot of that apartment
complex. Someone that they knew and had problems with before
confronted them. They had an argument. This person took a pistol,
broke the window out of that vehicle, at which time they began to
drive off and this person fired a number of shots into the back of
the car.
[THE COURT]:
Okay.
[DEFENSE
LAWYER #1]: Those people left that scene, went to wherever they
live, which I don't remember, but.
[DEFENSE
LAWYER #2]: In the 1300 block at Northborough.
[DEFENSE
LAWYER #1]: It was not-it was in a place Afton something.
[DEFENSE
LAWYER #2]: Okay, what-
[THE COURT]:
Those complainants.
[DEFENSE
LAWYER #1]: Those complainants went and called the police and
Officer Triplett came out to the scene. He viewed the car, saw
four, five bullet holes in the car. He recovered some slugs, some
spent bullets from the back vehicle of that car. Since-those were
taken to the ballistics lab and the ballistics lab says those
spent bullets were fired by the same weapon as the spent bullets
that killed [the victim in this case], so, i.e., that gun is the
gun used-
[THE COURT]:
Okay.
[DEFENSE
LAWYER #1]: -in the robbery. The description that these ladies
were able to give was a nickname of Damon or Damiano. They
described him as being five eleven to six foot, 140 pounds, 150.
[DEFENSE
LAWYER #2]: Afro and a goatee.
[DEFENSE
LAWYER #1]: Afro. Goatee. And they knew what apartment project he
lived in. And he lived at 12803 Northborough, which is where [appellant]-I
am sorry, where [Worthy] lived.
[THE COURT]:
So, let me stop you for a second. The shooters know the name of-I
am sorry, the complainants know the name of the shooters, a
nickname, and they know that he lives at an apartment complex
where Worthy lives?
[DEFENSE
LAWYER #1]: Right.
[THE COURT]:
Okay. Go ahead.
[DEFENSE
LAWYER #1]: And that it is our position that the description they
gave of him also fits Worthy.
[STATE]: But
how in the world could this possibly be outside the ambit of
hearsay?
[DEFENSE
LAWYER #2]: Because-and I researched the law on this-I believe
that [Moreno] can testify that they were in the grip of the
excitement after this shooting and I have case law right on point.
And in it statements-
[STATE]: How
would [Moreno] know unless he was there to speak with them? He is
going to say, third hand, he is going to say excited utterance.
[DEFENSE
LAWYER #2]: Not necessarily on officer-
[STATE]: He
is not the responding officer.
[DEFENSE
LAWYER #1]: We can get Triplett.
[THE COURT]:
Okay.
[DEFENSE
LAWYER #1]: Hope to get it in through [Moreno], because he knows
about-I read the report and he-
[STATE]:
Right now, start getting Officer Triplett in, even though this is
your defense.
[DEFENSE
LAWYER #1]: Let's get a ruling.
[THE COURT]:
My question is, How is the fact that these people who gave a
description that could fit Worthy are [sic] relevant to this case?
[DEFENSE
LAWYER #2]: For one reason, Your Honor. It shows that the gun was
in the possession of someone other than [appellant] at a point two
weeks prior to this offense.
There has
been testimony that [appellant] had this silver pistol. That's
been disputed both through the testimony from [Calliham] and so
forth. This puts the pistol in someone else's hand.
[THE COURT]:
Okay.
[DEFENSE
LAWYER #2]: I would urge that it would go to the weight of the
evidence, the relevance versus admissibility, up to the jury to
give whatever weight. But the fact is it makes a-the description
that was given by these complainants, afro, goatee, I believe it
was dark complexion, looks just like-sounds just like this mugshot
of [Worthy].
[STATE]: Judge, if I could just say two things. First of all, [appellant]
admits the pistol was in his lap that day and admits that it was
in his hand according to him before the capital murder. So, [sic]
could have easily passed it to Worthy, if they believe his story,
that Worthy was the one who was the shooter. Besides, this is
going to bring that Shipley's extraneous robbery,[
(7)] we have a
photograph of him holding a shiny pistol an hour and 15 minutes
after the capital murder.
[DEFENSE
LAWYER #1]: A shiny pistol, but not the pistol.
[STATE]:
Says there is two pistols, one shiny, one dark. So, the jury will
infer if is the murder pistol in his hands an hour and 15 minutes
earlier.
[THE COURT]:
Let me make sure that I understand what I'm hearing.
You want to
offer evidence that someone else had the pistol other than [appellant]
two weeks before the shooting?
[DEFENSE
LAWYER #1]: That fit the description of Worthy, lives where Worthy
lives and is willing to shoot at people.
[STATE]: It
doesn't fit the description of Worthy necessarily and we don't
know what stage of the hairdo that [appellant] had two weeks
before and booking photo for [Worthy] says he is six one, 185. [Appellant]
describes Worthy as being six one and about 200.
So, the fact
that these suspects-or these complainants said that the suspect
was 140 pounds does not match [Worthy's] description. We don't
know what [Worthy's] hair was like two weeks before. We don't know
what [appellant's] hair was like two weeks before. And his name is
Damon. The name Damon has never been attributed to Worthy or to [appellant].
[THE COURT]:
Okay. What else do you-all have to say about it? Anything else?
[DEFENSE
LAWYER #1]: Do you have any questions? I mean, I don't know what
else to say.
[THE COURT]:
Okay. I just want to make sure you have got everything that you
want to tell me. Okay.
I am going
to find that the probative value is substantially outweighed by
the danger of unfair prejudice or confusion of the issues and
exclude that offer.
Appellant
argues that the excluded evidence was admissible as an excited
utterance under Tex. R. Evid. 803(2). The State argues:
In the
present case, the appellant was attempting to put on evidence of
the extraneous shooting through the testimony of Moreno; however,
Moreno was not the actual declarant of the statements related to
the shooting. In fact, Moreno never actually spoke to any of the
declarants of the statements related to the shooting; he merely
read the statements as reflected in a police report written by
another officer. Thus, the appellant's intended evidence
constituted hearsay within hearsay.
The trial
court would not have abused its discretion to agree with the
State's claim at the hearing on the admissibility of this evidence
that, since Triplett talked to the people involved and prepared
the report, Moreno could not have provided testimony to establish
the predicate for the admissibility of the evidence under the
excited utterance exception to the hearsay rule. We cannot
conclude that the trial court abused its discretion to exclude
double hearsay testimony that an unknown person, maybe fitting
Worthy's description, used the murder weapon about two weeks
before this offense. Point of error nine is overruled.
In point of
error ten, appellant claims that the trial court erroneously
denied his "motion for mistrial after the State failed to correct
false testimony." The record reflects that Calliham testified on
direct examination by the State that he did not know about a plan
to commit a robbery at the Whataburger. Meyer later testified on
direct examination by the defense that he believed that Calliham
knew about a plan to commit this robbery because Calliham told
Meyer that appellant and Worthy divided up the guns before going
to the Whataburger.
Q. [DEFENSE]:
From your conversation with [Calliham], did [Calliham] ever
indicate to you, in his conversation, that he knew the robbery was
going to occur and that he knew that [Love]-well, you didn't know
names, but someone on the inside was in on the robbery?
A. [MEYER]:
[Calliham]? No.
Q. He did
not?
A. (Shakes
head.)
Q. When you-did
he indicate to you that there was, verbally, that there was some
type of plan to rob the Whataburger well before they-that he knew
about, well before they got to the Whataburger?
A. Are you
speaking of [Calliham]?
Q. Yes. [Calliham].
A. No, [Calliham]
didn't say-
Q. Okay. So,
the only thing that leads you to believe that [Calliham] knew
about it was the fact that they stopped prior to they [sic] got to
Whataburger and divided up the guns?
A. Yes, sir.
The defense later requested a mistrial "for the State's knowing
failure to correct [Calliham's] perjured testimony." The defense
claimed that, when Calliham testified on direct examination by the
State that he did not know about a plan to commit a robbery at the
Whataburger, the State knew what Calliham had told Meyer about
appellant and Worthy dividing up the guns before going to the
Whataburger.
(8) The trial
court denied the defense request for a mistrial.
[DEFENSE]:
Your Honor, along with our motion for mistrial, we would come now,
the [appellant], by and through his attorney of record and we
would request that the Court grant a mistrial in this matter for
the State's knowing failure to correct perjured testimony.
And by that
I have reference to their witness [Calliham] testifying that he
knew absolutely nothing about the robbery; that he did that as a
result of their agreement or an agreement with the State of Texas.
He testified-and
the State of Texas knew at the time what [Meyer] would say about [Calliham's]
testimony. I believe that they knowingly failed to correct the
perjured testimony of [Calliham]. For that reason we would ask for
a mistrial.
[THE COURT]:
It is denied.
Appellant
argues on appeal that the State's failure to timely reveal Meyer's
information before Calliham testified prevented him from using
this information to effectively cross-examine Calliham about his
prior knowledge of the robbery. He claims that this "gave the jury
a false impression of Calliham's participation in the robbery, and
this false impression should have been corrected so that the jury
could properly weigh Calliham's credibility."
The record,
however, reflects that the jury "could properly weigh Calliham's
credibility." The jury learned through Meyer that Calliham may
have known about the planned robbery at the Whataburger. The State
even told the jury during closing arguments that it did not
believe Calliham's claim that he did not know about this planned
robbery.
[STATE]:
What is our evidence on [Calliham]? First of all, [Calliham] says
that he was not at all involved in the planning of the Whataburger
robbery. He says that he was just going there to have a hamburger
and get something to eat from the way-from one club to the other
club.
Now, it
should be fairly obvious to all of us that we do not believe that.
Certainly, we do not believe that. We did not dismiss his case. We
gave him a deal. That's certainly so. But we do not believe that [Calliham]
did not know a robbery was going down. That's why we have charged
him the way that we have. And that's why we will pay and plead
guilty-plead no contest to an aggravated robbery.
This record
reflects that it was "fairly obvious to all" that Calliham's claim
of ignorance about the planned robbery was not believable. On this
record, appellant could not have suffered any harm from any
failure by the State "to correct false testimony." Point of error
ten is overruled.
In point of
error eleven, appellant claims that the trial court erroneously
denied his "motion for mistrial during the punishment phase of the
trial based on the State's failure to provide exculpatory evidence
to the defense" in violation of Brady v. Maryland, 373
U.S. 83 (1963). The State presented punishment evidence that
appellant misbehaved while in the county jail awaiting trial for
this offense.
One inmate (Dixon)
testified on direct examination by the State that he saw appellant
and another inmate assault a Hispanic inmate who was trying to
break up a fight among other inmates. Dixon testified on cross-examination
that he believed this inmate's name was "Cordona" or "[s]omething
like that." The defense later called an inmate named Cadena who
testified on direct examination that appellant did not assault him
and that appellant helped stop the fight among the other inmates.
Appellant
later unsuccessfully moved for a mistrial because the State did
not disclose this evidence. The State responded that it did not
know that Cadena was the inmate allegedly struck by appellant:
[STATE]:
Today is Thursday. The previous Friday is my first opportunity to
speak with Mr. Cadena. He is somebody I subpoenaed some six weeks
ago, along with everyone else that was involved in the fight that
was written up by the jail back in June of 2004.
mr. [sic]
Cadena did not speak English and I do not speak Spanish. I showed
him a picture of [appellant] and tried to describe whether or not
he was involved in a fight, whether or not [appellant] was
involved in a fight and whether or not he was involved in a fight.
And he indicated to me that neither one of them were.
I didn't at
that point know that he had been-had been named as the complainant
in the fight. It wasn't clear to me at all that he was a
complainant in the fight, just that he was involved in the fight.
When I
learned that he was not going to say that he or [appellant] were
involved in a fight, I didn't want to call him to the witness
stand. And it wasn't until Mr. Dixon testified and then his-this
testimony was elicited from the Defense that Mr. Cadena was, in
fact, the complainant and, of course, as Mr. Dixon testified, my
first conversation with him was either the day of his testimony,
which would have been Tuesday-I am sorry, which would have been
Wednesday or the day before which was Tuesday. I don't recall
which one it is. I did not know until he testified, the substance
of his testimony regarding [appellant] alleged to have struck Mr.
Cadena. And I don't even think it was clear that Dixon knew what
his name was. And I still don't think it is clear exactly who [appellant]
struck, whether it was Mr. Cadena or not.
There were
several people involved in the fight. It was described as a near
riot. And so at the time that I interviewed Mr. Cadena this past
Friday I wasn't aware of that information.
We decide
that any Brady violation was harmless primarily because
the record reflects that appellant was, in fact, able to present
to the jury the evidence that he claims the State failed to
disclose in violation of Brady. Cf. Hampton v. State,
86 S.W.3d 603, 612 n.26 (Tex.Cr.App. 2002) (when issue is failure
to timely disclose Brady material, defendant must show
that, had timely disclosure been made, there is a reasonable
probability that the result of the proceeding would have been
different). Point of error eleven is overruled.
In point of
error twelve, appellant claims that the trial court erroneously
denied his "motion for mistrial during the punishment phase of the
trial after the State's witness gave testimony in the form of
irrelevant speculation." The record reflects that a county jailer
testified on direct examination by the State that she had to
remove a county jail inmate (Gonzales) from an area of the county
jail (a "tank") where he was being housed because appellant and
some of the other inmates were "extorting inmate Gonzales for his
tennis shoes." Miller testified that she prepared a report
describing appellant's involvement in this incident.
Q. [STATE]:
What eventually happened?
Was anybody
charged with anything?
A. [MILLER]:
Yes, ma'am. In this particular case I wrote up [appellant] because
he struck the other inmate. However, behind him striking the
inmate was because him and a couple of other inmates were
extorting inmate Gonzales for his tennis shoes. They wanted his
shoes.
Miller later
testified that Gonzales would have been beaten badly had he been
returned to that tank. The trial court denied appellant's motion
for a mistrial after it instructed the jury to disregard this
remark.
Q. [STATE]:
Why did you write up the report?
A. [MILLER]:
Because if inmate Gonzales would have been returned to that tank,
he would have been beaten badly. There is no telling what could
happen to him. There would definitely be physical harm. There was
already physical harm to him.
[DEFENSE]: Your Honor, I would object to the last part of the
answer, where she is speculating that there would definitely be
physical harm.[
(9)]
[THE COURT]:
Sustained.
[DEFENSE]:
Thank you.
Q. [STATE]:
What is your experience?
[DEFENSE]:
Ask that that the jury be instructed to disregard.
[THE COURT]:
Jury disregard the last remark of the witness.
[DEFENSE]:
Ask for a mistrial.
[THE COURT]:
It's denied.
On this
record, we decide that the trial court's instruction to disregard
cured any harm or prejudice from the objected-to remark. See
Young, 137 S.W.3d at 69-70. Point of error twelve is
overruled.
In point of error thirteen, appellant claims that the trial court
erroneously denied his motion for new trial "based on violations
of [Brady]; the court's discovery order; the court's
order on [appellant's] pre-trial motion for disclosure of detailed
exculpatory evidence; [appellant's] motion to discover arrest and
convictions records of witnesses, and the Court's order requiring
State to reveal agreements." The record reflects that appellant
filed a motion for new trial with a supporting affidavit. The
State filed an affidavit controverting the allegations in
appellant's affidavit. The trial court denied appellant's motion
for new trial after admitting these affidavits and another
affidavit that the defense offered at the hearing. On this record,
we cannot conclude that the trial court abused its discretion to
deny appellant's motion for new trial. Point of error thirteen is
overruled.
(10)
The judgment
of the trial court is affirmed.
Hervey, J.
Delivered:
December 20, 2006
Publish
*****
1. After counsel filed a
brief on appellant's behalf, appellant filed a pro se
brief raising seven points of error. We will not address these
points as appellant has no right to hybrid representation. See
Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex.Cr.App.
2004), cert. denied, 543 U.S. 1059 (2005).
2. The record does not
clearly reflect how the assailant and the victim reentered the
Whataburger (assuming they even left the Whataburger through the
back door). The State's brief asserts that the assailant "brought
[the victim] back inside" the Whataburger. Appellant's brief
asserts that "Marsh recalled [the victim] somehow getting back
inside and hearing a man tell [the victim] that he would kill him
if he did not give him the key to the safe." Marsh testified on
direct examination that the assailant and the victim had to have
come back inside the Whataburger through the side door by the
drive-through window even though the evidence showed that door was
locked. Marsh testified on cross-examination that it was possible
that another person could have entered the Whataburger through the
drive-through window and let the assailant and the victim back
inside through the back door. The evidence seems to more easily
support a finding that the assailant and the victim were never
locked out of the Whataburger and that the assailant, possibly
with the help of another person, got the victim to open the back
door and come back inside the Whataburger. The evidence does not
necessarily have to show how the assailant and the victim may have
reentered the Whataburger to withstand a factual sufficiency
challenge.
3. The record reflects that
appellant shaved his head soon after his arrest.
Ok. He, um, he gets the guns and stuff. We go
to the What-A-Burger and um, [Worthy] jumped through the window at
What-A-Burger, right. He in the What-A-Burger and I see the people
running to the back of it, so I run to the back of it. So, the man
was still stuck in the What-A-Burger that got shot. He was in the
What-A-Burger with [Worthy], but people had ran. They ran and they
left, so I'm coming around the What-A-Burger by the drive-thru,
and um, [Calliham] going around the parking lot and then, that's
when I heard the gunshot cause I guess he shot him inside the What-A-Burger.
Then that's when I heard the gunshot. Then that's when he pulled
up and then we got in the car and left. That's all I saw. I didn't
see him shoot him or nothing.
5. See Jackson v.
Virginia, 443 U.S. 307, 319, 326 (1979).
6. It also would not have
been contrary to the weight of the evidence for the jury to have
found that it was Worthy and not appellant (as appellant claimed
in his second statement to the police) who watched the back door
and that Worthy facilitated appellant and the victim coming back
inside the Whataburger through the back door just before appellant
shot and killed the victim.
7. Evidence was presented at
the punishment phase that appellant, Calliham and Worthy were
involved in a robbery at a Shipley's donut shop about an hour
after the Whataburger offense. A Shipley's employee testified that
a car with three people in it pulled up in front of the shop.
Appellant got out of the car and robbed her. He threatened her
with a silver pistol during the Shipley's robbery.
8. The State responded that
Meyer's information concerning Calliham's statement to Meyer about
dividing up the guns was available to the defense before "he" (apparently
Calliham) took the witness stand. The defense responded that this
did not "obviate their duty to not knowingly present perjured
testimony."
9. The record, therefore,
reflects that appellant did not object to the first part of the
answer that Gonzales "would have been beaten badly. There is no
telling what could happen to him."
10. In his brief, appellant
primarily complains that: 1) the State did not timely disclose
Calliham's statement to Meyer "about the individuals dividing up
the guns before they all went to the Whataburger" (see
point of error ten), and 2) the State did not disclose that it had
made a deal with Calliham until several days into voir dire.
Appellant's brief asserts:
Appellant's
counsel testified about how this lack of disclosure harmed
appellant. He stated that a different trial strategy would have
been employed had he been given proper notice of this information
by the prosecution, including cross-examining [Calliham] regarding
the event of stopping and obtaining weapons and passing them out.
Other witnesses would have been questioned about this event as
well. Armed with this valuable information ahead of time,
appellant's counsel would have included additional questions of
the prospective jurors during individual jury selection. (References
to Motion for New Trial omitted). Appellant's counsel testified
(in response to the State's opposing affidavit at the motion for
new trial hearing) that he was never informed that [Calliham] was
not admitting his guilt prior to the time Calliham testified. (References
to Motion for New Trial omitted).
The record,
however, reflects that appellant was able to present all of this
information to the jury and that he effectively cross-examined
Calliham with various matters from which the jury could have
concluded that he was not worthy of belief. Appellant does not
specify how any non-timely disclosure of this information affected
his voir dire of prospective jurors.