Opinion
No. 14-05-00131-CR
Memorandum Opinion filed September 5, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 949,847. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
A jury found appellant, Lamont Lenord Dixon, guilty of murder and sentenced him to fifty years' confinement. In seven issues, he contends the trial court violated his constitutional rights by (1) denying his motion to suppress his statement to police officers, (2) misstating the law during jury selection, (3) denying a challenge for cause, (4) denying his motion for judgment of acquittal, (5) excluding testimony as "inadmissible character evidence," (6) admitting photographs of the deceased, and (7) excluding his statement to police officers.
I. BACKGROUND
Appellant was accused of murdering Alfredo Bonilla. Appellant lived with his mother and stepfather, Tammy and Willie Bookman, across the street from the Bonilla family. According to the State's evidence, on May 23, 2003, Bonilla walked his young son to the bus stop for school. The bus stop was on a corner right behind the Bookman home. Bonilla left the bus stop at about 7:10 a.m. His family expected he would return home to sleep because he had worked all night. Typically, he would pass the Bookman house on his way home. However, around noon, Bonilla's mother realized he was not home, but his vehicle was parked in the driveway. The family began searching for him. By 6:40 a.m. that morning, all residents of the Bookman home except appellant had left for school or work. Between 7:08 a.m. and 7:15 a.m., Mary Rodriguez, who lived diagonally behind the Bookmans, heard four or five episodes of loud screaming from the direction of the Bookman home. Between 7:10 a.m. and 7:15 a.m., Catherine Martinez, who lived directly behind the Bookmans, heard a male screaming, "Help me. Help" from the direction of the Bookman home. She then saw someone walking in the Bookmans' backyard but could not determine the person's identity. She also heard sounds "like a mentally retarded child moaning." At approximately 4:30 p.m., appellant called Mrs. Bookman at work and said that their home had been burglarized while he was out looking for a job. When Mrs. Bookman arrived home, she noticed a front window was broken. Appellant was wearing gloves and was cleaning. Mrs. Bookman asked what he was cleaning, and he replied, "blood on the floor." He did not tell her the source of the blood but simply stated that he thought he needed to clean up. Houston Police Officer Brett Cross initially responded to the report of a burglary at the home. Mrs. Bookman told him someone broke the front window and ran out the back door. She pointed out a trail of blood leading from the window to the back door. Appellant was wearing a white Latex glove on his left hand. Mrs. Bookman explained they were cleaning blood she thought had resulted from someone breaking the window. Officer Cross was skeptical a burglary had occurred. The exterior screen was still in place, and there were glass shards between the broken window and the screen. There were no signs of forced entry, and Mrs. Bookman reported that no property was missing. Officer Cross left after completing his investigation although he would return later after a subsequent dispatch to the home. In the meantime, Bonilla's family was still searching for him. Mrs. Bookman told Bonilla's wife about her broken window. Mrs. Bonilla believed the broken window was related to Bonilla's disappearance. Ronis Cruz, one of Bonilla's relatives, looked in the Bookman home and saw blood on the carpet and on a sofa. Mrs. Bookman allowed Cruz to look in her backyard. Cruz discovered Bonilla's dead body behind a shed. A ladder, some rags, and a reindeer decoration were piled on top of the body, and it was covered in ants. Mr. Bookman eventually arrived home and observed the broken window. He thought the window had been broken from the inside. Mr. Bookman saw cuts on the palms of appellant's hands. He asked how appellant got the cuts. Appellant did not respond but was "just real nervous." Several officers testified regarding their investigation and search of the Bookman home on the evening of the murder. They also believed the window had been broken from the inside. Further, the blinds were broken consistent with an object or person falling against them. Large areas of blood had pooled on the carpet in the area of the broken window. Although someone had attempted to clean the surface, blood was still saturated into the carpet. There was blood on the blinds and on various items of furniture near the window. Someone had also cleaned bloody foot prints on the linoleum floor in the front entry and had tried to clean blood on the dining room carpet. A vacuum cleaner was out, and there was blood on the handle. There was blood on the inside knob of the back door. The officers recovered Latex gloves containing a small amount of blood and an empty "Pine 'O Pine" bottle from an inside trash can. They recovered a comforter saturated with blood, a Clorox bottle, and bloody Latex gloves from a trash can on the back patio. The inside of this trash can was covered in blood. In addition, the officers found bloody sandals and Bonilla's eyeglasses in appellant's upstairs bedroom. Under appellant's bed, the officers found Bonilla's shoes and a bloody knife handle with a missing blade which matched the set of knives in a block in the Bookman kitchen. They discovered bloody clothes and a bloody towel in appellant's closet. The officers also noticed the cuts to the inside of appellant's hands. One officer testified some cuts were consistent with a person's hands slipping across the blade while holding a knife. In addition, there appeared to be blood on appellant's right ankle and left wrist but no corresponding injuries and blood transfer on the bottom of his left foot consistent with having walked in blood. An officer removed the Latex glove from appellant's hand and observed a red substance on the glove. The officers explained that Bonilla's body was discovered in a narrow space between the shed and a fence. A comforter was beneath, and wrapped partially around, the body. Bonilla's arms were bound with plastic trash bags, and his arms were above his head consistent with his body having been dragged to that location. Some lacerations and abrasions on the legs and feet were consistent with the body having been dragged across the yard. Blood on the bottom of the feet was consistent with Bonilla having stepped in blood. The autopsy revealed that Bonilla received at least eighteen "sharp force" stabbing or cutting injuries to his head, neck, arms, and back. A stab wound through his back caused his lung to collapse and the left side of his chest to fill with blood. The knife blade was left embedded in this wound. Some of the wounds to Bonilla's head were inflicted with such force that they caused small fractures to his skull. There were contusions, abrasions, and lacerations to the head, scalp, neck, arms, and legs and various lesions indicating ants had infested his wounds. Appellant and his family voluntarily went to the police station the night these events were discovered. Officer C.T. Mosqueda began an audiotaped and videotaped interview of appellant after appellant waived his Miranda rights. During a break, Officer Alfredo Mares spoke casually with appellant. Appellant agreed to continue the interview with Officer Mares after again waiving his Miranda rights. Appellant moved to suppress the statement, alleging he was incompetent to waive his Miranda rights. The trial court denied the motion to suppress.II. MOTION TO SUPPRESS
In his first issue, appellant contends the trial court erred by denying his motion to suppress and admitting his statement. However, the statement was not admitted during the guilt/innocence phase. Although Officers Mosqueda and Mares testified that appellant made a statement and described the surrounding circumstances, the State decided against offering the statement. Appellant challenges only the alleged admission of the statement during the guilt/innocence phase. Therefore, we need not decide whether the trial court erred by denying appellant's motion to suppress. See Baker v. State, 956 S.W.2d 19, 22 (Tex.Crim.App. 1997) (recognizing where statement obtained as a result of an interrogation is not used by State as evidence, or otherwise to obtain a plea or conviction, appellate court need not entertain a challenge to the admissibility of the statement). Appellant also suggests that any "information" obtained as a result of his statement was inadmissible. However, on appeal, he identifies no evidence that was allegedly obtained as a result of his statement and admitted at trial. Moreover, appellant represented to the trial court that his motion to suppress concerned only the statement and not any other evidence. Accordingly, appellant waived any complaint regarding admission of evidence allegedly obtained as a result of his statement. See TEX. R. APP. P. 33.1(a). We overrule his first issue.III. TRIAL COURT'S STATEMENTS DURING JURY SELECTION
In his second issue, appellant asserts the trial court misstated the law regarding article 38.23 of the Texas Code of Criminal Procedure during jury selection. Under article 38.23, when a factual dispute arises on whether evidence was obtained illegally, the trial court must instruct the jury that, if it believes, or has a reasonable doubt, such evidence was obtained illegally, it shall disregard such evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005); Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Crim.App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352, 356B57 (Tex.Crim.App. 2002). During jury selection, appellant's counsel discussed article 38.23 to determine whether prospective jurors could potentially disregard any evidence that was obtained illegally. Later, the trial court asked whether any prospective jurors needed clarification of article 38.23. A prospective juror inquired about the provision. In response, the trial court gave a lengthy explanation. Although appellant cites the entire explanation and asserts the trial court "totally misstated the law," he emphasizes four portions. However, appellant waived his complaint by failing to object to the trial court's statements. See TEX. R. APP. P. 33.1(a). Moreover, appellant does not make any argument or cite any authority to show the trial court's statements were incorrect, much less that he was harmed by the statements. See TEX. R. APP. P. 38.1(h) (requiring brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Regardless, the record demonstrates that the trial court's statements, even if incorrect, caused no harm. Two of the statements cited were general explanations regarding article 38.23. The third statement concerned a hypothetical illustration of article 38.23. The fourth statement is more a comment than an explanation of article 38.23: the trial court stated, "we are all tired of talking about it." It is not exactly clear what the trial court meant by this comment. When considered in context, at worst, the trial court indicated that it hoped the issue of illegally-obtained evidence would not arise during trial because it was tired of discussing the issue. Therefore, at worst, the trial court questioned the merits of a potential article 38.23 claim in this case. However, because appellant's statement was not admitted, there was no issue for the jury to resolve on whether evidence was obtained illegally and the jury was not instructed pursuant to article 38.23. Thus, any misstatements regarding article 38.23 and any comments questioning the merits of a potential article 38.23 claim were rendered harmless. See Williams v. State, 622 S.W.2d 116, 119 (Tex.Crim.App. 1981) (holding trial court's remarks that, at worst, misled prospective jurors on standard for determining whether a statement was voluntary were rendered harmless because no issue was raised during trial regarding the voluntariness of defendant's confession). We overrule appellant's second issue.IV. CHALLENGE FOR CAUSE
In his third issue, appellant contends the trial court erred by denying his challenge for cause to a venireperson who was allegedly biased against the law allowing probation as a possible punishment in this case. See TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (Vernon Supp. 2005) (allowing defendant to challenge a prospective juror for cause on the ground that he is biased against the law applicable to punishment for the offense). The State responds that appellant did not preserve error on this complaint. We agree. To preserve error on a trial court's denial of a challenge for cause, an appellant must demonstrate the following on the record: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App. 2003); Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App. 2002). Here, appellant asserted a challenge for cause to the venireperson at issue and used a peremptory strike against him. After exhausting his peremptory strikes, appellant filed a motion requesting additional peremptory strikes. In the motion, he identified three objectionable persons who purportedly would sit on the jury unless he was given additional peremptory strikes. Although two of these persons did not sit on the jury, the third person did sit on the jury. The trial court denied the motion. Thus, at that point, appellant had satisfied the requisites to preserve error with respect to his challenge for cause. However, after the trial court denied appellant's motion, it seated the jurors. The trial court then asked, "Is there any objection to the composition of the jury?" Appellant's counsel replied, "None, your Honor." After reading the name of the alternate juror, the trial court again asked, "Now that we have 12 jurors and the alternate seated, is there any objection to the composition of the jury?" Appellant's counsel again replied, "None, your Honor." Therefore, appellant twice affirmatively stated that he had no objection to the composition of the jury. The State does not cite, and we have not found, any published cases addressing whether a defendant who initially satisfies the requisites to preserve error on the denial of a challenge for cause nevertheless waives error by later affirmatively stating he has no objection to the composition of the jury. In an unpublished opinion, the Dallas Court of Appeals found that a defendant affirmatively waived error in a substantially similar situation. See Canales v. State, No. 05-94-01741-CR, 1996 WL 547955, at *4 (Tex.App.CDallas Sept. 17, 1996, no pet.) (not designated for publication). The court cited the rule applicable when a defendant affirmatively asserts he has "no objection" to the admission of evidence during trial despite having earlier moved to suppress the evidence. Id. (citing Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988)). When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error. See Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App. 1986); Mikel v. State, 167 S.W.3d 556, 558 (Tex.App.CHouston [14th Dist.] 2005, no pet.). However, when the defendant affirmatively asserts during trial that he has "no objection" to the admission of evidence at issue, he waives any error in its admission, despite the pretrial ruling. Moraguez, 701 S.W.2d at 904; Dean, 749 S.W.2d at 83; Mikel, 167 S.W.3d at 558. We agree that a similar rule should apply here. Because appellant identified an objectionable juror in his request for additional peremptory strikes, we conclude he was not required to object again to the composition of the jury when it was seated. However, by affirmatively stating he had no objection to the composition of the jury, appellant negated any objection, effectively waiving any complaint he had preserved. He affirmatively represented that no objectionable juror sat on the jury because he had to use a peremptory strike against the venireperson at issue. Accordingly, we hold that he waived any error in the denial of his challenge for cause. See Canales, 1996 WL 547955, at *4; see also Franklin v. State, No. 01-87-00097-CR, 1988 WL 139732, at *2 (Tex.App.CHouston [1st Dist.] Dec. 22, 1988, no pet.) (not designated for publication) (concluding appellants waived any error in denial of challenges for cause by stating they had no objection to the jury composition). Moreover, when a trial court erroneously denies a challenge for cause, a defendant is harmed if he is forced to accept an objectionable juror because he had to use a peremptory strike against the venireperson at issue, had no remaining strikes, and was denied an additional strike. See Escamilla v. State, 143 S.W.3d 814, 821 (Tex.Crim.App. 2004). Therefore, appellant negated any harm resulting from the denial of his challenge for cause by affirmatively representing that no objectionable juror sat on the jury. We overrule his third issue.V. MOTION FOR JUDGMENT OF ACQUITTAL
In his fourth issue, appellant claims the trial court erred by denying his motion for judgment of acquittal after the State rested its case because the evidence was insufficient to prove his guilt. We treat a challenge to the denial of a motion for judgment of acquittal as a challenge to the legal sufficiency of the evidence. Cuddy v. State, 107 S.W.3d 92, 94 (Tex.App.CTexarkana 2003, no pet.); see Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In considering a legal-sufficiency challenge, we review all the evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). This standard of review "gives full play to the jury's responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence." Threadgill v. State, 146 S.W.3d 654, 663 (Tex.Crim.App. 2004). A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Appellant asserts the evidence is legally insufficient to prove he murdered Bonilla because it was all circumstantial. However, circumstantial evidence may be sufficient to support a conviction. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); see also Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (stating a conclusion of guilt may rest on the cumulative strength of all incriminating circumstances). For the purposes of proving guilt beyond a reasonable doubt, circumstantial and direct evidence are equally probative. See Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.CAustin 2000, pet. ref'd) (citing McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App. 1989)). We apply the same legal-sufficiency standard of review to cases involving direct or circumstantial evidence. Kutzner, 994 S.W.2d at 184. The evidence shows that Bonilla was stabbed repeatedly during a violent struggle inside the Bookman home, and his body was then dragged outside to the area behind the shed. The evidence further indicates that Bonilla was killed shortly after 7:00 a.m.Cwhen appellant was the only resident home. Later in the day, fresh cuts were observed on appellant's hands. The cuts were consistent with those that would result from a knife slipping while being held. Appellant gave no explanation for the cuts when confronted by his stepfather. Appellant also had blood on various parts of his body without corresponding injuries. Consequently, the jury could have rationally inferred that appellant was involved in a struggle and stabbed Bonilla. In addition, appellant's mother found him cleaning blood in the Bookman home in the afternoon. The officers determined someone had engaged in a considerable effort to clean blood and discard bloody items. Thus, the jury could have reasonably inferred appellant had been cleaning blood for some time in an attempt to dispose of evidence. Moreover, because bloody sandals, the broken knife handle, Bonilla's shoes and eyeglasses, bloody clothes, and a bloody towel were found in appellant's bedroom, the jury could have reasonably inferred he tried to hide these items. These attempts to dispose of and hide evidence indicate "consciousness of guilt." See Torres v. State, 794 S.W.2d 596, 598 (Tex.App.-Austin 1990, no pet.) (stating `consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt."); see also Wells v. State, 578 S.W.2d 118, 119 (Tex.Crim.App. 1979) (recognizing attempts to conceal incriminating evidence are indicative of guilt). The evidence belies appellant's claim that a burglary was committed while he was out looking for a job. The front window had been broken from the inside, there were no signs of forced entry, and no property was missing. The jury rationally could have concluded that a burglar who committed murder would not take time to clean the home, hide evidence in the home, and drag the body behind a shed. The jury also rationally could have disbelieved that a burglar would randomly choose appellant's bedroom to hide evidence. Further, the jury reasonably could have questioned why Bonilla would have ended up inside the Bookman home entangled in a burglary when none of the residents were home. From the overwhelming evidence negating a burglary, the jury rationally could have concluded that Bonilla was not killed by a burglar. The jury also reasonably could have concluded that appellant was involved in the murder because he falsely claimed a burglary had occurred. In sum, after reviewing all the evidence in the light most favorable to the finding, we conclude a rational jury could have found beyond a reasonable doubt that appellant murdered Bonilla. We overrule appellant's fourth issue.VI. EVIDENTIARY RULINGS DURING TRIAL
In his fifth, sixth, and seventh issues, appellant challenges several evidentiary rulings during trial. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). We will not disturb the trial court's ruling unless it falls outside the zone of reasonable disagreement. Id. A. Exclusion of "Impermissible Character Evidence" In his fifth issue, appellant contends the trial court erred by excluding testimony as "impermissible character evidence." During the State's direct examination, Mr. Bookman testified about appellant's response when Mr. Bookman asked how he got the cuts on his hands:Q. What did he tell you?
A. He really didn't say. He was just being typical Lamont, just — you know, it's kind of hard to get across to him sometime, and he was just real nervous and everything.During cross-examination, appellant's counsel attempted to expand on Bookman's testimony:
Q. What did you mean by, He was just being typical Lamont?
A. Well, Lamont's — Lamont, he's a loving person.After Bookman answered, the State objected to "improper character testimony of this defendant." In response, appellant generally argued he was entitled to explore what "being typical Lamont" meant because the State had invited this testimony. The trial court instructed that appellant's counsel could ask about appellant's demeanor at the scene, but his question was so broad that it invited impermissible character evidence about appellant. On appeal, appellant suggests he did not offer the testimony as character evidence; rather, the testimony was relevant to prove he was incompetent to stand trial. Regardless of appellant's reason for offering the testimony, the trial court subsequently allowed all the testimony offered by appellant notwithstanding its ruling. When appellant resumed his cross-examination of Bookman, appellant fully explored what "being typical Lamont" meant, despite objections to some of his questions. In particular, appellant elicited Bookman's testimony that "being typical Lamont" meant appellant is quiet, difficult to communicate with, "slow," and "idolizes" Janet Jackson. Appellant then concluded his cross-examination and did not attempt to offer any additional testimony from Bookman. Thus, the trial court did not exclude the testimony offered by appellant. Finally, appellant did not make an offer of proof regarding any additional testimony he wished to elicit from Bookman that was purportedly excluded. Therefore, to the extent appellant contends he was precluded from offering any additional testimony, he has waived his complaint. See TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.2. We overrule appellant's fifth issue.