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holding that a proffer of evidence to established a witness's bias and motive to lie did not preserve a Confrontation Clause argument because a defendant “must specifically articulate that the Confrontation Clause demands admission of proffered evidence to preserve error on this ground”
Summary of this case from Montgomery v. StateOpinion
No. 14-06-00292-CR
Opinion filed February 7, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1043735.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Larry Jones appeals his conviction for aggravated assault. In four issues, he contends (1) the trial court denied his constitutional rights to due process and to present a defense by excluding evidence, (2) the trial court violated his constitutional right to confrontation by improperly limiting his cross-examination of a witness, (3) the trial court erred by admitting certain evidence, and (4) the State made improper jury argument. All dispositive issues are settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. BACKGROUND
According to the State's evidence, Niya Knighton and appellant dated from May 2005 to September 2005, when they had a "bad break up," and appellant threatened to shoot her. After midnight on October 9, 2005, Niya and her cousins, Ashley Wooten and Terrika Parker, visited two nightclubs in Houston. Appellant drove around in the vicinity of both clubs at some point during the women's visits. In the early morning hours, the women began to drive home. When they stopped at an intersection, appellant's car was next to them in a left-turn-only lane. The women proceeded straight through the intersection when the light turned green. Appellant quickly swerved in behind them and shot at their vehicle. Terrika, who was riding in the back seat, sustained a non-fatal gunshot wound to the back of her head. In contrast, appellant testified he did not go to the first club on the night at issue. However, appellant agreed he went to the premises of the second club, where he passed the women's vehicle as he entered the parking lot. After leaving this club, he went home. Appellant denied driving to the intersection at issue, following the women, or shooting at their vehicle. A jury found appellant guilty of aggravated assault of Terrika Parker and sentenced him to six years' confinement.II. CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE
In his first issue, appellant contends the trial court denied his rights under the United States Constitution to due process and to present a defense by limiting his cross-examination of Niya Knighton and excluding some of appellant's own proffered testimony. During cross-examination of Niya, appellant asked if she had ever caught him with another woman and whether he had ever called the police due to her actions. The trial court's sustained the State's objections to both questions. Out of the jury's presence, appellant suggested he wished to cross-examine Niya regarding incidents in which the police removed her from his home. The trial court ruled the proffered testimony was irrelevant. Subsequently, appellant testified his relationship with Niya was "casual," and he ended the relationship due to a certain incident. Out of the jury's presence and during a subsequent offer of proof, appellant informed the trial court he wished to testify regarding several incidents in which he called the police based on Niya's actions, including an occasion when she came to his home and found him with another woman. The trial court ruled that appellant could not testify regarding specific incidents of bad conduct but could testify he has called the police based on Niya's actions. However, the trial court warned that introduction of this testimony would open the door for the State to establish Niya had another assault case pending against appellant. Thereafter, appellant did not testify that he has called the police based on Niya's actions. Appellant contends the trial court violated his constitutional rights to due process and to present a defense by excluding the proffered testimony of Niya and appellant because the incidents were relevant to demonstrate Niya was biased and had a motive to lie. According to appellant, the basis of his defense was that Niya and the other women falsely claimed he followed them and shot at their vehicle because Niya was a scorned lover. However, appellant waived these constitutional complaints by failing to raise them in the trial court. To preserve error for appellate review, the complaining party must make a timely, specific objection or request and obtain an adverse ruling. See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). The proponent of excluded evidence must also have made the substance of the offered evidence known to the court through a bill of exception or offer of proof, unless the substance is apparent from the context in which the evidence was offered. See Tex. R. Evid. 103(a)(2). Moreover, the objection or request at trial must comport with the complaint presented on appeal. Wilson, 71 S.W.3d at 349. Even constitutional errors may be waived by failure to object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). At trial, appellant argued that the incidents at issue were relevant because they demonstrated Niya was biased and had a motive to lie. However, appellant never asserted that exclusion of this allegedly relevant evidence would rise to the level of a violation of his constitutional rights to due process and to present a defense. Accordingly, appellant waived his constitutional complaint. See id. (holding defendant failed to preserve complaint that he was denied constitutional rights to present a defense and to due process and due course of law where trial objection was based on rules of evidence); Hayes v. State, 124 S.W.3d 781, 786-87 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 161 S.W.3d 507 (Tex.Crim.App. 2005) (holding appellant failed to preserve complaint that trial court's exclusion of evidence denied his constitutional right to due process by preventing him from presenting a defense because he argued at trial only that evidence was admissible based on various rules concerning relevancy). We overrule appellant's first issue.III. RIGHT TO CONFRONTATION
In appellant's second issue, he contends the trial court violated his right to confrontation under the United States Constitution by limiting his cross-examination of Niya Knighton. Appellant again refers to the testimony he wished to elicit from Niya regarding alleged incidents in which appellant called the police due to her actions. Appellant also failed to preserve error on this complaint. As we have explained, at trial, appellant asserted the incidents were relevant to demonstrate Niya's alleged bias and motive to lie. However, appellant did not inform the trial court that cross-examination regarding these incidents was required under the Confrontation Clause. A party must specifically articulate that the Confrontation Clause demands admission of proffered evidence to preserve error on this ground. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). Therefore, appellant waived his Confrontation Clause complaint. See id. (holding defendant's suggestion to trial court that testimony he wished to elicit from complainant was not hearsay, should not be excluded under evidentiary rules pertaining to relevancy, and was offered to challenge complainant's credibility did not preserve appellate complaint that Confrontation Clause demanded admission of testimony). Accordingly, we overrule appellant's second issue.IV. ADMISSION OF BULLET
In his third issue, appellant contends the trial court erred by admitting a bullet that had been removed from Terrika Parker's head because it was not properly authenticated pursuant to Texas Rule of Evidence 901. See Tex. R. Evid. 901. Terrika testified that, when she was treated at the hospital immediately after the shooting, doctors decided not to remove the bullet because of the risk involved in the procedure. However, Terrika testified that a doctor removed the bullet about a month later because she was experiencing difficulties. Terrika brought the bullet to trial, and it was admitted, despite appellant's objection that it was not properly authenticated. We need not decide whether the trial court erred by admitting the bullet because any error was harmless. Error under the rules of evidence in admission of evidence is nonconstitutional error. Gandy v. State, 222 S.W.3d 525, 532 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)). We must disregard nonconstitutional error that does not affect the appellant's substantial rights. Tex. R. App. P. 44.2(b); Gandy, 222 S.W.3d at 532. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Gandy, 222 S.W.3d at 532 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). Appellant suggests that Terrika was not shot; thus, admission of the bullet was harmful because it proved she was indeed shot. Appellant notes that the records concerning Terrika's treatment at the hospital on the day of the incident reflect a diagnosis of "GSW to head — no injury." However, reviewing the records as a whole, this entry clearly reflects that Terrika sustained a gunshot wound, but it caused no significant injuries. Moreover, records from the doctor who later removed the bullet were admitted at trial and confirm that this procedure occurred. Further, Terrika testified she was shot in the head. Finally, photographs of Terrika's head showing the entry wound were admitted at trial. Therefore, the jury heard ample proof that Terrika was shot even without admission of the bullet. Accordingly, any error in admitting the bullet did not have a substantial and injurious effect or influence in determining the jury's verdict. We overrule appellant's third issue.V. JURY ARGUMENT
In his fourth issue, appellant contends that, in two instances, the State made jury argument that violated appellant's right to due process and was improper under Texas law. First, appellant complains regarding the following argument:Directions and time? Is that the only case they're going to bring you? To ask you to find someone not guilty when someone's shot in the back of a head.
[APPELLANT'S COUNSEL]: Objection, Judge. That's shifting the burden on the defense.
[THE STATE]: Judge, they have chosen to put on a case.
THE COURT: Overruled.
Is that the only evidence they're going to bring you to say that the defendant is not guilty? Well, no. They put the defendant on the stand, too . . .Appellant contends the State improperly placed the burden of proof on appellant by suggesting he was obligated to negate guilt. We disagree. The State may comment on a defendant's failure to produce witnesses and evidence so long as the State does not fault the defendant for exercising his right not to testify. Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000); see Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995). In addition, the four general areas for proper jury argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answers to argument of opposing counsel, or (4) pleas for law enforcement. Jackson, 17 S.W.3d at 673; Wright v. State, 178 S.W.3d 905, 929 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). During appellant's earlier closing argument, he attacked the credibility of Niya, Terrika, and Ashley by emphasizing alleged inaccuracies or inconsistencies in their testimony concerning the time and location of the shooting. Therefore, the State countered with the argument at issue. The State obviously did not reference any failure by appellant to testify because he did testify. Rather, the State suggested that appellant presented no other evidence to support his version, so he resorted to challenging the women's credibility based on insignificant details. This suggestion was a reasonable deduction from the evidence and a response to appellant's argument. Accordingly, the argument was not improper. See Jackson, 17 S.W.3d at 674 (holding State did not make improper jury argument by commenting on defendant's failure to present expert testimony to counter State's DNA evidence linking defendant to the offense). Appellant also complains about the following argument:
What about all these friends we heard everything about, these buddies that he saw that night and all these friends? I had a friend with me in the car. We had a recess yesterday for the purpose of bringing a witness B
[APPELLANT'S COUNSEL]: Objection, Judge. Improper argument, Judge. That's something that was not before the jury and it's not evidence.
[THE STATE]: You told the jury yesterday afternoon.
THE COURT: You want to rephrase.
The defendant has talked about all these friends that he was going to — — that were there with him and he's decided to put on a case. He's decided to put on a defense. The defendant has equal subpoena power to the State to bring people to this court and force them to testify. To tell them, you were there, you tell the truth about what you saw.However, appellant waived his complaint regarding this argument. To preserve error regarding allegedly improper jury argument, a party must both object and pursue the objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Whitmire v. State, 183 S.W.3d 522, 530 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). If the trial court refuses to rule on the objection, an appellant may still preserve error by objecting to the refusal. See Tex. R. App. P. 33.1(a)(2)(B); Whitmire, 183 S.W.3d at 530-31. If the trial court sustains the objection, the party must request an instruction to disregard when the prejudice resulting from the improper argument is curable. See Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007); McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App. 1998). If the prejudice arising from an erroneous jury argument is incurable, a motion for mistrial is sufficient to preserve error. See Cruz, 225 S.W.3d at 548; McGinn, 961 S.W.2d at 165. Appellant objected to the first portion of the argument at issue, but he did not obtain an adverse ruling when the trial court effectively ordered the State to rephrase. Further, he did not object to lack of an adverse ruling. To the extent the trial court's order that the State rephrase constituted a ruling sustaining appellant's objection, he nonetheless failed to preserve error because he did not request an instruction to disregard or a mistrial. Appellant did not make any objection to the second portion of the argument at issueC when the State rephrased. Accordingly, appellant failed to preserve error with respect to this argument. We overrule his fourth issue. The judgment of the trial court is affirmed.