No. 73,459
Christopher Julian Solomon,
Appellant
v.
The State of Texas
Appellant also errs in contending that we
should ignore Young's testimony. Appellant implicitly concedes
that Young was not an accomplice but believes the testimony should
be ignored on the ground that Young lacked credibility as a
witness. But the credibility of a witness is an issue for the jury
to decide, and we have held in the past that credibility attacks
on a witness do not defeat the corroborating effect of the
witness's testimony. (9) Moreover,
appellant's contention amounts to an attempt to superimpose a
legal or factual sufficiency review upon the accomplice witness
standard - a contention we rejected in Cathey v. State.
(10)
Finally, appellant erroneously assumes that the
evidence connecting him to the robbery did not also connect him to
the murder. We have previously held a defendant's presence at the
scene and participation in the underlying offense to be sufficient
to connect him to the capital murder for accomplice-witness rule
purposes. (11) Young's testimony
that appellant said he intended to "jack" the victim was some
evidence connecting appellant to the robbery and placing him at
the scene of the capital murder. Point of error two is overruled.
We have outlined a non-exclusive list of
factors that may be considered in determining whether a defendant
constitutes a continuing threat to society:
(1) the circumstances of the capital offense,
including the defendant's state of mind and whether he was acting
alone or with other parties;
(2) the calculated nature of the defendant's
acts;
(3) the forethought and deliberateness
exhibited by the crime's execution;
(4) the existence of a prior criminal record
and the severity of the prior crimes;
(5) the defendant's age and personal
circumstances at the time of the offense;
(6) whether the defendant was acting under
duress or the domination of another at the time of the commission
of the offense;
(7) psychiatric evidence; and
(8) character evidence.
Moreover, Davis testified that appellant goaded
Murphy into committing the robbery, and she confirmed the last
part of the statement related by Woods concerning getting "caught
the last time." In addition, Young testified that appellant formed
the intent to rob Erie before stopping alongside the victim's car.
So, the evidence shows that appellant planned the crime in advance.
Further, evidence that appellant bragged about the chambered shell
and bragged about keeping five dollars as a souvenir show an
absence of remorse. Evidence showing a lack of remorse constitutes
some support for a finding of future dangerousness.
(17)
Regarding the fourth factor, the State showed
that appellant had committed several prior offenses. In 1996, he
shot at a house because a friend would not sell embalming fluid
for him. In 1997, appellant shot at another person. In June of
1997, appellant and another person committed a carjacking and
threatened to kill the car's owner if he called the police. For
that incident, appellant was charged with aggravated robbery, and
he was on bond for that offense when he committed the offense
before us. This sequence of crimes shows an escalating pattern of
violence that constitutes some evidence of future dangerousness.
(18) In addition, committing the offense while on bond
is a significant fact showing a bold and dangerous disrespect for
the law. It is similar to committing an offense while on parole -
which we have held has some tendency to show future dangerousness.
(19)
II. EVIDENTIARY MATTERS
[PROSECUTOR]: Christina, let me just ask you
this question. You were in the car that night. Who was the person
in that car responsible for Mr. Erie getting robbed, in your
opinion?
[DAVIS]: In my opinion?
[PROSECUTOR]: Yes.
[DAVIS]: Chris.
[DEFENSE COUNSEL]: That calls for a legal
conclusion. Object to that. Invading the province of the jury.
THE COURT: Overruled.
[PROSECUTOR]: The defendant was?
[DAVIS]: Yes. To me, it was.
Appellant contends that Davis improperly
rendered a lay opinion on the ultimate issue of the case and
engaged in mere speculation as to appellant's mental state.
In Fairow v. State
(20) we discussed the admissibility, under the
predecessor of the current rule (21),
of lay testimony concerning the culpable mental state with which
an act is committed. We said,
[W]hile a witness cannot possess personal
knowledge of another's mental state, he may possess personal
knowledge of facts from which an opinion regarding mental state
may be drawn. The jury is then free to give as much or as little
weight to the opinion as it sees fit. Therefore, we conclude that
once the proponent of the opinion establishes personal knowledge
of the facts underlying the opinion, he has satisfied the
perception requirement of Rule 701. This is so even if the opinion
concerns culpable mental state.
Christina Davis had personal knowledge of the
events in the car, and her testimony that appellant was
responsible for the robbery was based upon that knowledge.
The second requirement of Rule 701 is that the
opinion be helpful to the trier of fact to either understand the
witness's testimony or determine a fact in issue. Christina's
testimony here was no more than a shorthand rendition of the facts.
The trial court could have properly found that her testimony was
helpful to a clear understanding of her testimony or the
determination of a fact in issue, and there was no error in
admitting it.
But even if we were to assume arguendo
that the trial court erred in permitting Davis to express the
opinion given here, admission of this testimony would be harmless.
Texas Rule of Appellate Procedure 44.2(b) provides that a
nonconstitutional error "that does not affect substantial rights
must be disregarded." We have determined that substantial rights
are not affected by the erroneous admission of evidence "if the
appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a
slight effect." (22) In the
present case, the jury had already heard all of the facts upon
which Davis's conclusion was based. Davis did not purport to be an
expert or otherwise to be in a position to possess information not
already related to the jury. The opinion here added little, if any,
weight to Davis's testimony. Under the circumstances, we have a
fair assurance that the evidence in question did not influence the
jury or had but slight effect. Point of error four is overruled.
While Rule 34.5(c)(1) permits supplementation
of an appellate record with material that has been omitted from
the appellate record, the rule cannot be used to create a new
appellate record. (23) Point of
error five is overruled. We deny appellant's motion to supplement
the record.
We agree that the photographs were relevant
only as victim impact evidence; the evidence had no other apparent
purpose. We must therefore address the legal principles relevant
both to photographs and to victim impact evidence. Contrary to
appellant's claims, we have held that victim impact evidence is
relevant, "in the context of the mitigation special issue, to show
the uniqueness of the victim, the harm caused by the defendant,
and as rebuttal to the defendant's mitigating evidence."
(24) Part of showing a victim's uniqueness is to
humanize the victim for the jury. (25)
Although we have in the past referred only to humanizing the
victim, some humanizing of the family members accomplishes that
purpose by impressing upon the jury that real people were in fact
harmed by the victim's death. This humanizing effect is normally
accomplished by the live testimony of a family member, but in the
present case, most of the close family members did not testify;
so, here, the photographs had the effect of humanizing the
victim's family. Rather than just hear that the victim had a
family, the jury was given pictures of the family members. Those
pictures showed the family members as being more than just names.
The real question, then, is whether the
probative value of the photographs was outweighed by the danger of
unfair prejudice under Texas Rule of Evidence 403.
(26) We generally consider the following factors in any
prejudice versus probative value analysis:
(2) the potential of the evidence to impress
the jury in some irrational, but nevertheless indelible way;
(3) the time the proponent needs to develop the
evidence; and
(4) the proponent's need for the evidence.
(27)
In the present case, the probative value of the
evidence was relatively low. While having some tendency to
humanize the victim by humanizing his family, the photos were not
particularly strong evidence of this or of the victim's death's
impact on family members. But the photos' potential to impress the
jury in an irrational, but indelible way was also low. The primary
danger of unfair prejudice from victim impact testimony is its
tendency to encourage the jury to engage in "measuring the worth
of the victim compared to other members of society."
(28) The photos of the family members did nothing to
encourage the jury to make such comparisons; nothing in those
photos singled out the victim or his family as being different
from other families. The photo of the victim in his sailor's
uniform may have had some slight tendency to encourage comparisons,
but the uniform simply reflected the victim's occupation, which,
under the circumstances, does not appear to be unduly prejudicial.
In addition, the photographs were not gruesome nor were they
designed to shock the jury or cause an extreme emotional reaction
based upon irrelevant facts. (29)
Regarding the third factor, there were seven
photographs presented within three pages of testimony; so, the
length of time needed to present the evidence was short. Finally,
the State had some need for the testimony. The State did not
procure testimony from the victim's wife and children. The
photographs were the only exposure the jury had to these close
members of the victim's family. After considering the relevant
factors, we conclude that the trial court was within its
discretion in determining that the photographs' probative value
was not substantially outweighed by the danger of unfair prejudice.
Point of error nine is overruled.
§7.02(b) sets forth the theory of conspiracy
liability:
If, in the attempt to carry out a conspiracy to
commit one felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually
committed, though having no intent to commit it, if the offense
was committed in furtherance of the unlawful purpose, and was one
that should have been anticipated as a result of the carrying out
of the conspiracy.
In accordance with the law of conspiracy
liability, the trial court gave instructions in the abstract and
application portions of the guilt-innocence jury charge tracking
the statutory language:
If, in the attempt to carry out a conspiracy to
commit one felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually
committed, though having no intent to commit it, if the offense
was committed in furtherance of the unlawful purpose, and was one
that should have been anticipated as a result of the carrying out
of the conspiracy. Capital murder, murder, robbery, and attempted
robbery are felonies.
Unless you so find beyond a reasonable doubt,
or if you have a reasonable doubt thereof, you will acquit the
defendant CHRISTOPHER JULIAN SOLOMON, of Capital Murder.
Appellant argues that these instructions were
not enough to cover the "independent impulse" issue and contends
that the trial court should have submitted the following
additional instruction:
If you believe from the evidence, beyond a
reasonable doubt, that on or about September 19, 1997, Julius
Murphy, in the course of committing robbery of Jason Erie,
murdered Jason Erie, and that the evidence raises a question as to
whether the murder of Jason Erie was perpetrated in furtherance of
the robbery, or that the murder should have been anticipated by
Defendant Christopher Solomon, you will find the Defendant,
Christopher Solomon, not guilty of capital murder.
With little explanation, we held in
Mayfield that a defendant was entitled to an "independent
impulse" instruction in a conspiracy liability case when raised by
the evidence. (31) That holding,
however, is no longer viable in light of our more recent decision
in Giesberg v. State. (32)
In Giesberg, we held that defendants were not entitled to
a defensive instruction on "alibi" because alibi was not an
enumerated defense in the penal code and the issue was adequately
accounted for within the general charge to the jury.
(33) Because alibi was merely a negation of elements in
the State's case, its inclusion would be superfluous, and in fact,
would be an impermissible comment on the weight of the evidence.
(34) Likewise, there is no enumerated defense of "independent
impulse" in the Penal Code, and appellant's proposed defensive
issue would simply negate the conspiracy liability element of the
State's case. All that is required, then, is for the appropriate
portions of the jury charge to track the language of §7.02(b). To
the extent that Mayfield holds to the contrary, it is
overruled. Point of error one is overruled.
In considering whether there is some evidence
in the record that a defendant, if guilty, is guilty only of the
lesser offense, "[i]t is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense. Rather, there
must be some evidence directly germane to a lesser-included
offense for the factfinder to consider before an instruction on a
lesser-included offense is warranted." (36)
Because appellant was charged with a conspiracy theory of
liability for murder in the course of a robbery, the second prong
is met only if there is evidence in the record showing either (1)
there was no murder, (2) the murder was not committed in
furtherance of a conspiracy, or (3) the murder should not have
been anticipated.
Finding no reversible error, we affirm the
judgment of the trial court.
KELLER, Presiding Judge
Date delivered: June 20, 2001
Publish
2. Article 37.071 §2(g).
Unless otherwise indicated all future references to Articles refer
to the Code of Criminal Procedure.
3. Article 37.071 §2(h).
4. Article 38.14.
5. Cook v. State,
858 S.W.2d 467, 470 (Tex. Crim. App. 1993)(citing Thompson v.
State, 691 S.W.2d 627, 631 (Tex. Crim. App. 1984)).
6. Cathey v. State,
992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied,
528 U.S. 1082 (2000).
7. Id. at 462-463.
8. Medina v. State,
7 S.W.3d 633, 641 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1102 (2000).
9. Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App.), cert. denied, 528
U.S. 1026 (1999).
10. See Cathey,
supra.
11. Cook, 858 S.W.2d
at 470.
12. The issue, found in
Article 37.071, §2(b)(1), asks: "whether there is a probability
that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society."
13. Jackson v. State,
33 S.W.3d 828, 830 (Tex. Crim. App. 2000)(citing Jackson v.
Virginia, 443 U.S. 307 (1979)).
14. Reese v. State,
33 S.W.3d 238, 245 (Tex. Crim. App. 2000).
15. Nenno v. State,
970 S.W.2d 549, 552 (Tex. Crim. App. 1998).
16. We have specifically
held the accomplice-witness rule to be inapplicable to extraneous
offenses presented during the punishment phase. Farris v.
State, 819 S.W.2d 490, 507 (Tex. Crim. App. 1990), cert.
denied, 503 U.S. 911 (1992).
17. Dewberry v. State,
4 S.W.3d 735, 743 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000); Trevino v. State, 991 S.W.2d 849,
854 (Tex. Crim. App. 1999).
18. Reese, 33 S.W.3d
at 247; Jackson, 33 S.W.3d at 838.
19. Trevino, 991
S.W.2d at 854.
20. 943 S.W.2d 895, 899 (Tex.
Crim. App. 1999).
21. Rule 701 of the Texas
Rules of Evidence provides:
If the witness is not testifying as an expert,
the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a
fact in issue.
22. Reese, 33 S.W.3d
at 243 (quoting Johnson v. State, 967 S.W.2d 410 (Tex.
Crim. App. 1998)).
23. Berry v. State,
995 S.W.2d 699, 702 n. 5 (Tex. Crim. App. 1999); Green v. State,
906 S.W.2d 937, 939 n. 3 (Tex. Crim. App. 1995).
24. Mosley v. State,
983 S.W.2d 249, 262 (Tex. Crim. App. 1998), cert. denied,
526 U.S. 1070 (1999).
25. Id.
26. Rule 403 provides:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of
cumulative evidence.
27. Reese, 33 S.W.3d
at 240.
28. Mosley, 983
S.W.2d at 262.
29. See Reese,
33 S.W.2d at 242 (photograph of fetus in a casket played on jury's
sympathies based upon facts that should not have been relevant to
its decision).
30. 716 S.W.2d 509 (Tex.
Crim. App. 1986).
31. Id. at 515.
32. 984 S.W.2d 245 (Tex.
Crim. App. 1998), cert. denied, 525 U.S. 1147 (1999).
33. Id. at
248-251.
34. Id. at 250.
35. Rousseau v. State,
855 S.W.2d 666, 673 (Tex. Crim. App.), cert. denied, 510
U.S. 919 (1993).
36. Skinner v. State,
956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert. denied,
523 U.S. 1079 (1998).
37. Fuentes, 991
S.W.2d at 273.
38. Appellant did not
request such an instruction.
39. McFarland v. State,
928 S.W.2d 482, 516-517 (Tex. Crim. App. 1996), cert. denied,
519 U.S. 1119 (1997). |