Opinion
No. 02-02-376-CR
Delivered: February 3, 2005.
Appeal from Criminal District Court No. 1 of Tarrant County.
Jeffrey S. Stewart, Jeffrey S. Stewart, P.C., Fort Worth, TX, for Appellant.
Tim Curry, Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, and Chief of the Appellate Division, Helena F. Faulkner, James R. Hudson, and Lloyd E. Whelchel, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellee.
Panel B: DAUPHINOT, HOLMAN, and McCOY, JJ. DAUPHINOT, J. filed a dissenting opinion.
OPINION
Majority Opinion by Justice McCoy; Dissenting Opinion by Justice Dauphinot.
I. INTRODUCTION
In nine points, Patrick Aaron Kennedy ("Kennedy") appeals his jury conviction for the offense of murder. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of November 5, 2001, Ginny Ward stood outside Enterprise Rent-A-Car, where she was picking up a vehicle, and observed Corey McMillan, the deceased, and Brandy Upchurch arguing in the adjoining parking lot of the Budget Inn. Ward testified that after McMillan yelled at and shoved Upchurch, Upchurch walked away from the motel. McMillan then began bringing out different items and loading them into his car located directly outside his first-floor motel room.
About twenty minutes later, Ward watched a grey Mustang, driven by Matthew Schiffert, Kennedy's uncle, and containing Kennedy and Upchurch drive slowly into the parking lot "like they were looking for someone." Near the exit, Schiffert revved the car motor, drove back around the lot, hit a parked rental truck, and stopped five or six inches behind McMillan's car. Ward watched Kennedy get out of the Mustang's front passenger seat and run up to McMillan, who stood up from the backseat of his car. According to Ward, McMillan was not holding anything and did nothing physical or aggressive toward Kennedy, who made a slashing motion toward McMillan that caused McMillan to back up from where he was originally standing. Kennedy then returned to the Mustang, which left in a hurry, but not before Devin Smith, an Enterprise Rental Car employee, wrote down the Mustang's license plate number. McMillan then went to the front of his car while holding his neck and hollering for somebody to help him. Ward testified that her husband helped McMillan to the ground and put his hands on McMillan's throat in an attempt to stop it from bleeding. McMillan died from two stab wounds, one in the left side of his neck and the other in the left chest.
Ward later picked Kennedy out of a photo lineup as the man who had stabbed McMillan, and police officers identified Schiffert as the owner of the Mustang. Kennedy was later arrested, charged with the murder, and pleaded not guilty. At the conclusion of his trial, the jury found Kennedy guilty of murder and sentenced him to twenty-seven years' confinement. This appeal followed.
III. EVIDENCE AT THE GUILT/INNOCENCE PHASE A. Weapons Found in McMillan's Room
In his fifth point, Kennedy complains the trial court erred by limiting defense counsel's question to a witness about weapons found in McMillan's room on the day he was killed and by excluding four photographs, defendant's exhibits 12-15, which showed the weapons and their location in the motel room. At trial, the defense sought to admit these exhibits three times: twice during the cross-examination of Detective Kevin Brown and again during Kennedy's case-in-chief. In response to the first attempt, the State objected that the evidence was irrelevant because the crime occurred outside the apartment and there was no evidence that anyone was near the room. Defense counsel replied that the photos were relevant because Ward testified that McMillan had been going in and out of the room while loading items in his car, and because they showed what had been going on inside the room moments before and possibly after the stabbing. The trial court reviewed the photos and sustained the State's objection.
Defense exhibit 12 shows a knife on the floor of McMillan's room. Defense exhibit 13 shows a club on the table inside his room. Defense exhibit 14 shows the apartment's kitchenette. Finally, defense exhibit 15 shows a large picture of the room from the door and was offered to give the jury a perspective of the other exhibits.
Later, after establishing that McMillan's door was wide open and a large pool of blood was found right in front of the door, defense counsel asked Detective Brown whether a person could have thrown a knife or other weapon inside the door of McMillan's room. The trial court sustained the State's speculation and relevance objections, but admitted the exhibits for purposes of the record. The record does not reflect what Detective Brown's response would have been had the questioning been allowed. Defense counsel attempted to introduce the exhibits again during its case-in-chief, and the State renewed its relevancy objection, which the trial court sustained.
In order to preserve his complaint regarding the exclusion of the testimony, Kennedy was required to make an offer of proof or file a bill of exceptions. Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999); Johnson v. State, 925 S.W.2d 745, 749 (Tex.App.-Fort Worth 1996, pet. ref'd). Rule 103 provides, "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." Tex. R. Evid. 103(a)(2). In this case, Kennedy's failure to do so waived his complaint regarding the exclusion of Detective Brown's testimony. Johnson, 925 S.W.2d at 749.
In regard to the photos, Kennedy now argues that they were relevant to show that Kennedy acted in self-defense, to show McMillan's alleged violent character, and to show that McMillan was the first aggressor. Kennedy failed, however, to offer these arguments to the trial court in support of the admission of the photos. When the trial court excludes evidence, an appellant must object or offer argument in response to the State's objection to preserve error for appellate review. See Tex.R.App.P. 33.1(a)(1)(A); Johnson, 925 S.W.2d at 750. Failing to present a particular argument to the trial court and then making such an argument to the appellate court, as Kennedy does here, in effect usurps the trial court's function on such arguments. Johnson, 925 S.W.2d at 750. Accordingly, we overrule Kennedy's fifth point.
B. Kennedy's Vision
In his eighth point, Kennedy complains the trial court erred by limiting questions regarding his vision and preventing his trial counsel from making a bill when timely requested. At trial, Kennedy testified that he had "one good eye and one real weak eye." When the defense counsel asked Kennedy about the extent of the weakness, the State objected on relevancy grounds, and the trial court sustained the State's objection. Later, after both sides had rested but before the court's charge was read to the jury, the defense counsel asked to proffer evidence regarding what Kennedy's answers would have been to questions about his vision. The trial court denied the request, stating, "You're making a request for a bill, and I'm not going to grant it at this time. . . . You can file it by way of a bill later, if you wish to."
The original record did not contain such a bill. Therefore, pursuant to Spence v. State, we ordered this appeal abated and remanded the cause to the trial court for a hearing so that Kennedy could properly perfect the record. At the abatement hearing, the only evidence that Kennedy offered was that he is legally blind in his left eye and has to wear a corrective lense to see with his right eye. Kennedy failed to file a supplemental brief, as we permitted him, regarding the evidence presented at the abatement hearing, leaving us with only his contention in his original brief that "[b]ecause this is a situation where the [trial court] may have found the evidence to be admissible if the [c]ourt would have heard it, and the jury charge had not yet been read, this case should be reversed and remanded for a new trial." Because Kennedy has not filed a supplemental brief explaining why the evidence about his vision warrants a new trial, he has received all the relief required by Spence. See Spence, 758 S.W.2d at 600; see also Rodriguez v. State, 90 S.W.3d 340, 363 (Tex.App.-El Paso 2001, pet. ref'd); Rivera v. State, 981 S.W.2d 336, 341 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (both stating that proper remedy for trial court's erroneous refusal to allow a bill is to abate appeal to trial court so appellant can properly perfect the record). Accordingly, we overrule Kennedy's eight point.
758 S.W.2d 597, 598 (Tex.Crim.App. 1988), cert. denied, 499 U.S. 932 (1991) (holding that if trial court precludes an appellant from making an offer of proof, appellate court must abate the appeal and remand the cause to the trial court so appellant can perfect the record).
IV. JURY INSTRUCTIONS
In his first, second, and third points, Kennedy complains that the trial court erred by failing to instruct the jury as to (1) the lesser included offense of manslaughter, (2) the defense of third persons, and (3) sudden passion. In his fourth point, Kennedy argues the trial court erred in instructing the jury as to provocation.
The trial court found the evidence sufficient to submit the issue of self-defense to the jury.
A. Lesser Included Offense of Manslaughter
To determine whether a jury must be charged on a lesser included offense, we apply a two-step test. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). The first step is to decide whether the offense is a "lesser included offense" as defined in article 37.09 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. Here, the State acknowledges that manslaughter is a lesser included offense of murder. Therefore, this issue turns on the second step.
The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense and not of the greater. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002); Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App. 1992).
A person commits manslaughter if he recklessly causes the death of an individual. See Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. See id. § 6.03(c). Therefore, for a defendant to be entitled to a jury charge on manslaughter, the record must contain some evidence that the defendant did not intend to kill and that the defendant acted recklessly while ignoring a known risk. See Munoz v. State, 932 S.W.2d 242, 245 (Tex.App.-Texarkana 1996, no pet.).
Kennedy was charged with and convicted of committing murder by intentionally causing serious bodily injury to McMillan, by stabbing him with a knife, which resulted in his death. According to Kennedy, he was afraid that McMillan was trying to hurt Shiffert and Upchurch after McMillan allegedly ran toward Shiffert's car. Kennedy testified that he exited the car with a knife, immediately displayed the weapon to McMillan, and told McMillan to go inside his apartment in an attempt to scare him off. According to Kennedy, McMillan then grabbed him by the neck, and Kennedy was unable to free himself so he stabbed McMillan in the neck. Kennedy then tried to pull back, but McMillan allegedly grabbed him with his other hand, and Kennedy stabbed him again in the chest. Kennedy stated that he never intended to cause death or serious bodily injury to McMillan. However, he also testified that he stabbed McMillan because he knew that McMillan was trying to hurt him and he wanted McMillan to let him go, and he admitted that he stabbed McMillan in highly vulnerable parts of the body.
Kennedy's statement that he did not intend to kill McMillan cannot be plucked out of the record and examined in a vacuum. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986); Martinez v. State, 16 S.W.3d 845, 847 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Viewed in the context of the entire record, Kennedy's testimony that he did not intend to kill McMillain, without more, does not amount to evidence upon which a jury could rationally find he only acted recklessly with respect to killing McMillan. See Mathis v. State, 67 S.W.3d 918, 926 (Tex.Crim.App. 2002); Martinez, 16 S.W.3d at 848; Johnson v. State, 915 S.W.2d 653, 659 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Based on our examination of the foregoing, we hold that the trial court did not err in denying his request for a manslaughter jury charge. See Martinez, 16 S.W.3d at 848; Munoz, 932 S.W.2d at 245-46; Johnson, 915 S.W.2d at 658-59. Accordingly, we overrule Kennedy's first point.
B. Defense of Third Persons
A defendant is entitled to an instruction on every defensive issue raised by the evidence regardless of the strength of the evidence. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App. 1997); Golden v. State, 851 S.W.2d 291, 295 (Tex.Crim.App. 1993). A trial court's refusal to give such an instruction, although erroneous, is subject to a harm analysis. Payne v. State, 11 S.W.3d 231, 232-33 (Tex.Crim.App. 2000).
A person is justified in using deadly force to protect another "[s]o long as [he] reasonably believes that the third person would be justified in using deadly force to protect himself." Hughes v. State, 719 S.W.2d 560, 564 (Tex.Crim.App. 1986). Moreover, the actor must reasonably believe that his intervention is immediately necessary to protect the third person. See Tex. Penal Code Ann. §§ 9.32(a), 9.33 (Vernon 2003); Hughes, 719 S.W.2d at 564.
Here, there is no evidence that Kennedy reasonably believed that his use of deadly force was immediately necessary to protect Schiffert and Upchurch. On the contrary, Kennedy admitted that neither Schiffert nor Upchurch were in immediate danger when he got out of the car with the knife. He admitted that McMillan appeared to be unarmed and that he never saw him holding any type of weapon. Kennedy also testified that he stabbed McMillan because McMillan was trying to hurt him. This evidences supports the trial court's decision to submit the issue of self-defense to the jury, but does not support Kennedy's claim of defense of third persons. The trial court, therefore, did not err in denying Kennedy's request for a jury charge on defense of third persons. We overrule Kennedy's second point.
C. Sudden Passion
If a defendant is convicted of murder, he may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause, as Kennedy did in this case. See Tex. Penal Code Ann. § 19.02(d) (Vernon 2004). If the defendant establishes sudden passion and adequate cause by a preponderance of the evidence, the offense level is reduced from first degree to second degree, and the ensuing punishment range is reduced. See id. Sudden passion is defined as a passion directly caused by and arising out of provocation by the individual killed, which arises at the time of the offense and is not solely the result of former provocation. See id. § 19.02(a)(2). Adequate cause means cause that would produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. See id. § 19.02(a)(1). Therefore, a sudden passion charge should be given if there is some evidence showing that appellant's mental state rose beyond a bare claim of fear to render him incapable of rational thought and collected action. Jones v. State, 963 S.W.2d 177, 180 (Tex.App.-Fort Worth 1998, pet. ref'd).
According to Kennedy, McMillan ran outside toward Schiffert's side of the car after Schiffert called and confronted McMillan on the phone while parked directly outside his McMillan's apartment. Although Kennedy testified that he was not aware of McMillan possessing a weapon and there is no evidence McMillan said anything as he approached, Kennedy decided to grab a knife that he remembered leaving in the glove compartment, exit the car, immediately brandish the weapon, and move toward McMillan while ordering him back into the apartment, in essence attacking him. See Villegas v. State, 791 S.W.2d 226, 239 (Tex.App.-Corpus Christi 1991, pet. ref'd). According to Kennedy, McMillan reacted by grabbing Kennedy's neck, and Kennedy stabbed McMillan in the neck. When McMillan responded to being stabbed by grabbing Kennedy with his other hand, Kennedy stabbed McMillan in the chest.
When a defendant first attacks another, he cannot claim the other's act of self-defense gave rise to adequate cause so that he was justified in killing him, even if he was acting under sudden passion after the other's acts of self-defense. See Adanandus v. State, 866 S.W.2d 210, 231-32 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 1215 (1994); Villegas, 791 S.W.2d at 239. Moreover, the evidence adduced at trial does not demonstrate that Kennedy's mental state rose beyond a bare claim of fear to render him incapable of rational thought and collected action. See Jones, 963 S.W.2d at 180. Finally, although testimony was presented raising the issue of self-defense, this alone does not entitle Kennedy to a charge on sudden passion. See id. Therefore, the trial court did not err in denying Kennedy's request for a jury instruction on sudden passion. We overrule Kennedy's third point.
D. Provocation
As a general rule, the use of force against another in self-defense is not justified if the actor provoked the other's use or attempted use of unlawful force. See Tex. Penal Code Ann. § 9.31(b)(4). Provoking the use of force acts as limitation or total bar on a defendant's right to self-defense. See Smith v. State, 965 S.W.2d 509, 512 (Tex.Crim.App. 1998). Here, after the jury was instructed on the issue of self-defense, it was further instructed on provocation, over Kennedy's objection.
The provocation charge reads in part,
"You are further instructed as part of the law of this case, and as a qualification on the law of self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless the defendant abandons the encounter or clearly communicates to the other person his intent to do so, reasonably believing he cannot safely abandon the encounter; and the other person, nevertheless, continues or attempts to use unlawful force against the defendant."
In determining if a provocation instruction should have been included in the charge, we use a three-part analysis in which we determine (1) the measure, or standard of proof; (2) the elements of provocation; and (3) examine the evidence presented to determine if the measure, or standard of proof on each element is met. See id. at 513-14. The standard of proof for a provocation instruction requires "there [to be] evidence from which a rational jury could find every elements of provocation beyond a reasonable doubt," viewing the evidence in the light most favorable to giving the instruction. See id. at 514. The elements of provocation are: (1) the defendant did some act or used some words which provoked the attack on him; (2) such act or words were reasonably calculated to provoke the attack; and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon others. See id. at 513.
Examining the evidence presented as to each element, and starting with the first, the exact words said or action taken by the defendant causing the attack need not be proven to the jury; rather the jury must merely be able to find that there were some provoking acts or words. See id. at 515. It will be enough if the evidence allows an inference beyond a reasonable doubt that the victim attacked the defendant in response to something the defendant did or said. See id. at 516. Here, Kennedy was ridding in a car that slowly entered the parking lot "like they were looking for someone." Near the exit, the engine's motor revved, the car drove back around the lot, hit a parked rental truck, and stopped five or six feet behind McMillan's car. Kennedy then decided to grab a knife, exit the car, immediately brandish the weapon, and move toward the unarmed McMillan. This constitutes evidence from which the jury could conclude that Kennedy did something to provoke McMillan to grab him around the neck. The first element of provocation was satisfied.
Concerning the second element, an act is reasonably calculated to provoke an attack if it is reasonably capable of doing so, or if it has a reasonable tendency to cause an attack. See id. at 517. Here, there is evidence from which the jury could concluded that Kennedy's actions, as detailed above, were reasonably capable of provoking McMillan to grab Kennedy around the neck or had a reasonable tendency to cause such a response. The second element is also satisfied.
Regarding the final element, whether Kennedy intended to provoke can only be determined from the circumstances surrounding the attack. See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). Here, Kennedy decided to grab a knife, exit the car, immediately brandish the weapon, and move toward the unarmed McMillan. This constitutes evidence from which the jury could conclude that Kennedy intended to provoke McMillan. While Kennedy testified that he did not go to the motel parking lot with the intention of confronting McMillan, and that had he known that his uncle was going to confront McMillan, he would not have gone, he also testified that it was not customary for him to go with Shiffert to pick up Upchurch, and Upchurch informed them on the way to the motel that McMillan had "a bullet" for Schiffert. Also, Ward testified that she saw the car drive into the parking lot like they were looking for someone and park five to six inches behind McMillan's car. Kennedy admitted they stopped behind McMillan's car, which was directly in front of McMillan's motel room, and Schiffert confronted McMillan over the phone by saying, "I'm looking at you right now punk bitch." Finally, Kennedy admitted he exited the car only after he saw McMillan approaching the car without a weapon. The jury could have believed Kennedy's actions were the culmination of a plan to lure McMillan outside of his room and make sure he was not armed in order to confront and harm him. In other words, the jury could have believed Kennedy's actions were done for the purpose of providing Kennedy a pretext for inflicting harm upon McMillan. The third element of provocation was satisfied.
Having examine the evidence presented to determine if the standard of proof on each element was met, we concluded that there was evidence to allow a rational jury to find provocation beyond a reasonable doubt as to each requirement for giving the provocation instruction. Therefore, the trial court did not err in instructing the jury on provocation. We overrule Kennedy's fourth point.
V. IMPROPER CLOSING ARGUMENTS AT THE GUILT/INNOCENCE PHASE
In his ninth point, Kennedy attacks numerous separate rulings the trial court issued regarding the State's closing argument at the guilt/innocence phase. To be permissible, the State's jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App. 1973).
If a jury argument exceeds the bounds of proper argument, the trial court's erroneous overruling of a defendant's objection is not reversible error unless it affected the appellant's substantial rights. Tex.R.App.P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). In determining whether the appellant's substantial rights were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial effect of the prosecutor's remarks), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.
A. Arguing Shiffert "Called Out" McMillian
During its closing argument, the State argued the following regarding Schiffert calling out McMillan before Kennedy stabbed him:
[Prosecutor]: His uncle went and got him to go pick [Upchurch] up. And recall what he said, that was not normal. May have done it once or twice before but it was not normal. Gee, man, I just happen to remember I got that knife in that glove box, you know, I put that radio — from when I tried to put that radio on the car a few weeks ago. Gee, what a huge coincidence . . . we're making a slow turn through this parking lot to go get her clothes. Remember, he said, we're going to get her clothes. And, gee, what a huge coincidence my uncle gets on the phone and calls the victim out. That's what he's doing, he's calling the victim out. What a huge coincidence.
[Defense]: Judge, I object, that's improper argument, and the State is arguing exactly what I argued in the charge conference at that point in time about provoking the difficulty. I object to that argument.
[Prosecutor]: I'll rephrase.
[Court]: Please.
[Prosecutor]: And I'd ask the jury be instructed to disregard the last statement of the prosecutor.
[Court]: I'm going to deny it at this time.
[Defense]: I would ask for a ruling on my objection.
[Court]: Overruled.
Seconds later, the same prosecutor made the same argument, Kennedy's trial counsel objected on the same basis, and the trial court asked both sides to approach the bench, where the following occurred:
[Court]: You keep saying he and I don't know who you're are talking about. When you say call who out.
[State]: Shiffert is who I was referring to.
[Court]: You're saying that —
[State]: Shiffert called him out and he's part of it because —
(Open Court)
[Court]: Okay. The objection is sustained.
[Defense]: I ask the jury be instructed to disregard the last statements by the prosecutor.
[Court]: You'll disregard references to Shiffert being involved in provoking the difficulty.
[Defense]: And I would ask for a mistrial at this time, Judge.
[Court]: Denied
When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.-Fort Worth 1997, pet. ref'd) (en banc op. on reh'g). Its resolution depends on whether the court's instruction to disregard cured the prejudicial effect, if any, of the improper argument. Id. Generally, an instruction to disregard impermissible argument cures any prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001); Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.), cert. denied, 516 U.S. 832 (1995). Here, Kennedy fails to address the trial court's instruction to disregard or why the instruction could not cure the alleged harm. We therefore presume that the jury followed the instruction to disregard. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987).
We agree with the State that the broad language of the trial court's instruction to disregard "references" to Shiffert provoking the difficulty extended to the both of the prosecutor's previous argument on the topic.
During the rebuttal closing argument, the other prosecutor argued, "It's not self-defense to go over there, have somebody called outside to his death." However, instead of objecting on the same basis that the trial court had previously sustained, Kennedy's counsel objected that the argument was outside the record. The trial court overruled the objection. During trial, Kennedy testified that Shiffert called and confronted McMillan from the motel parking lot by saying, "I'm looking at you right now punk bitch." According to Kennedy, it was then that McMillan came running out of his room toward Shiffert's car, and Kennedy exited the car with a knife and immediately displayed the weapon. In light of the record as a whole, the State's argument was an appropriate summation of the evidence and reasonable deductions that Schiffert and Kennedy acted together and that Shiffert called McMillan out of the motel room as part of their common plan to confront McMillan. See Felder, 848 S.W.2d at 94-95; Alejandro, 493 S.W.2d at 231. Accordingly, the trial court did not err in overruling counsel's objection.
B. Calling Kennedy Names
Kennedy also contends that the State engaged in improper argument by characterizing him as "the biggest coward that walks the face of the earth." Kennedy's objection that the argument was outside the scope of the evidence was overruled by the trial court. In context of the entire record, the argument was a reasonable deduction from the evidence that Kennedy, after fatally stabbing an unarmed man in the neck and chest in self-defense, fled the scene and left McMillan there to die rather that seeking help. See Felder, 848 S.W.2d at 94-95; Alejandro, 493 S.W.2d at 231. Accordingly, the trial court did not err in overruling counsel's objection.
C. Arguing Kennedy Stepped Over McMillan's Body
Finally, Kennedy contends that the State engaged in improper argument by saying: "He stepped over — the guy that we've been heard [sic] [about] as being called noble, stepped over the man's body that he just murdered." The trial court overruled Kennedy's objection that the argument was outside the scope of the evidence. Assuming without deciding that the argument constituted error, a trial court's denial of an objection to argument outside the record is normally nonconstitutional error and requires the balancing of the following three factors to determine harm: (1) severity of the misconduct (prejudicial effect), (2) curative measures, (3) the certainty of punishment absent the misconduct. Tex.R.App.P. 44.2(b); Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.
The prosecutor's comment that Kennedy walked over McMillan's body was, at most, mildly improper. Regardless of the way theat Kennedy retreated, the prosecutor's main point — that Kennedy was not noble, but instead fled the scene after stabbing McMillan — was an entirely legitimate point to make. Therefore, the first factor carries little weight in this case. In regard to the second factor, there was no curative instruction, the State did nothing to emphasize the allegedly erroneous comments made, and the comment was a very small portion of the State's entire argument at punishment. Finally, the third factor weighs heavily in the State's favor. Viewing the entire record and overwhelming evidence of guilt, Kennedy's crime was especially egregious.
Given the mildness of the prosecutor's comments and the strength of the evidence supporting Kennedy's life sentence, we find that any error associated with those comments were harmless. Accordingly, we overrule Kennedy's ninth point.
VI. EVIDENCE AT THE PUNISHMENT PHASE
In point six, Kennedy complains the trial court erred by admitting evidence during the punishment phase of his jail record and an extraneous offense of aggravated assault.
A. Appellant's Jail Record
Although the dissent contends that the admission of Kennedy's jail record violates, among other things, Kennedy's rights of confrontation, the issue of whether Kennedy's constitutional rights of confrontation were violated by the admission of his jail record is not before us. Generally, one must timely and specifically object to complained-of testimony to preserve error. Tex.R.App.P. 33.1. Even constitutional error may be waived by failure to object at trial. Bunton v. State, 136 S.W.3d 355, 368 (Tex. App-Austin 2004, no pet h.). A defendant, in fact, waives his constitutional right to confront witnesses if he does not object at trial. Id. Here, in regard to Kennedy's jail records, Kennedy not only failed to object on confrontation clause grounds at trial, but also failed to brief any related point on appeal. Moreover, we reject any suggestion that no waiver resulted from Kennedy's failure to object because the United States Supreme Court's decision in Crawford v. Washington, ___ U.S. ___, 124 S. Ct. 1354 (2004) represents a new and novel federal constitution rule, and that it would have been futile to object on the basis on the Sixth Amendment Confrontation Clause. Id. Accordingly, the issue of whether Kennedy's constitutional rights of confrontation were violated by the admission of his jail record is not before us.
During the punishment phase, Sergeant Donald Kraul of the Tarrant County Sheriff's Office testified regarding State's exhibit 15, a compilation of Kennedy's jail records made by Tarrant County Jail ("TCJ") employees while Kennedy was in their custody. Kraul testified that the records were made and kept in the regular course of TCJ's business and that they were made by individuals who had personal knowledge about the events reflected in them. When the State offered the records into evidence, defense counsel objected that the documents contained hearsay and did not fall within the exception of Rule 803(8)(B) of the Texas Rules of Evidence, because they concerned matters observed by police officers and other law enforcement personnel in a criminal case. See Tex. R. Evid. 803(8)(B). The State replied that it was offering the documents as a business recorded as provided in Rule 803(6). See Tex. R. Evid. 803(6). Defense counsel further objected that Rule 803(6) should not serve to circumvent Rule 803(8)(B) and cited the case of Cole v. State, 839 S.W.2d 798 (Tex.Crim.App. 1990). The trial court overruled the objection.
Defense counsel followed by objecting that (1) the State's exhibit 15 contained hearsay within hearsay, was irrelevant, and was more prejudicial than probative, citing Rule 403 of the Texas Rules of Evidence, and (2) page one of the exhibit contained custodial statements by Kennedy in response to questioning by law enforcement officers in violation of articles 38.22 and 38.23 of the Texas Code of Criminal Procedure. The trial court overruled all of the objections and granted defense counsel a running objection. The version of the exhibit introduced into evidence contained a medical screening evaluation, a classification profile, a receiving screening form, and various sheriff's department documents entitled "Inmate Disciplinary Report" and "Detention Operations Command."
A. Hearsay
On appeal, Kennedy asserts that the exhibit as a whole (1) is hearsay under Rule 803(8) and thus inadmissible under business record exception found in Rule 803(6), and (2) contains hearsay within hearsay under Rule 805. Specifically, Kennedy argues that the decision in Cole v. State, 839 S.W.2d 798 (Tex.Crim.App. 1990), renders his jail records inadmissible under Rule 803(8)(B) because they fall under the exclusion in criminal cases of matters observed by police officers and other law enforcement personnel. See Tex. R. Evid. 803(8)(B).
Rule 803(8) of the Texas Rules of Evidence provides an exception to the hearsay rule:
Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel, or (C) against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.
Tex. R. Evid. 803(8) (emphasis supplied).
In Cole, the trial court admitted reports prepared by a chemist for the Department of Public Safety ("DPS") forensic laboratory in an aggravated sexual assault case through the testimony of the supervising chemist. See Cole, 839 S.W.2d at 799. The Texas Court of Criminal Appeal held that reports could not be admitted through the testimony of the supervising chemist because the chemist who prepared the report fell into the category of other law enforcement personnel for the purposes of Rule 803(8)(B). See id. at 805. In making this determination, the court considered it significant that the "reports were not prepared for purposes independent of specific litigation, nor were they ministerial, objective observations of an unambiguous factual nature," but they were prepared in the DPS laboratory, "a uniquely litigious and prosecution-oriented environment." Id. at 805, 809-10.
In contrast with Cole's chemist's report, the jail records admitted here were not prepared for purposes of litigation and conviction, but recorded routine, objective observations, made as a part of the everyday function of classifying, housing, and managing inmates in the Tarrant County jail. See Tanner v. State, 875 S.W.2d 8, 10 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Moreover, the fact than an individual's jail records may be used in a criminal prosecution does not implicate the same concern of unreliability involved when reports are prepared in contemplation of litigation. See Garcia v. State, 868 S.W.2d 337, 340 (Tex.Crim.App. 1993). Therefore, the trial court did not abuse its discretion in admitting Kennedy's jail records into evidence under the business exception found in Rule 803(6). See Jackson v. State, 822 S.W.2d 18, 30-31 (Tex.Crim.App. 1990); Carson v. State, 2002 WL 31059856, at *3-4 (Tex.App.-San Antonio Sept. 18, 2002, no pet.) (not designated for publication); Smith v. State, 895 S.W.2d 449, 455 (Tex.App.-Dallas 1995, pet. ref'd); Tanner, 875 S.W.2d at 10.
B. Custodial Interrogation
Kennedy also asserts that page one of the exhibit as well as "other pages," violated articles 38.22 and 38.23 of the Texas Code of Criminal Procedure because the documents contain responses to questioning conducted while Kennedy was in custody. Article 38.22 prohibits the admission of statements made as a result of custodial interrogation unless particular requirements are met. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2004-05). However, the mere fact of being in custody does not automatically determine that any conversation between law enforcement personnel and the defendant will constitute custodial interrogation. See Paez v. State, 681 S.W.2d 34, 36 (Tex.Crim.App. 1984). Specifically, those words or actions "normally attendant to arrest and custody" have been excluded from the definition of custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90 (1980). Here, page one of State's exhibit 15 contains a medical screening evaluation and a classification profile both of which appear to be used to serve legitimate purposes of care, control, and appropriate housing and processing of the inmates in the Tarrant County jail. Therefore, because Kennedy's answers on page one of State's exhibit 15 were not obtained through custodial interrogation, the requirements of article 38.22 were not implicate. See Cruse v. State, 882 S.W.2d 50, 51-52 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (citing McCambridge v. State, 712 S.W.2d 499, 505-07 (Tex. Crim App. 1986), cert. denied, 495 U.S. 910 (1990)); Mayes v. State, 870 S.W.2d 695, 698 (Tex.App.-Beaumont 1994, no pet.).
Because Kennedy only objected to the admission of page one at trial, we will not consider his argument on appeal regarding the "other pages" of State's exhibit 15. See Johnson v. State, 925 S.W.2d 745, 750 (Tex.App.-Fort Worth 1996, pet. ref'd) (failing to make a particular argument to trial court and then making such argument to appellate court in effect usurps trial court's function of ruling on such arguments).
C. Rule 403 Balancing
Finally, Kennedy argues that the trial court failed to perform the required Rule 403 balancing test. However, the trial court is not required to articulate its mental balancing of the probative and prejudicial effects of the evidence or to even announce on the record that it is mentally conducting the balancing. See Nolen v. State, 872 S.W.2d 807, 812 (Tex.App.-Fort Worth 1994, pet. ref'd). While the record does not contain a direct discussion by the court of its balancing, we presume the court did perform the mandatory balancing test. See id.
Based on the foregoing, the trial court did not abuse its discretion in admitting State's exhibit 15 into evidence at the punishment phase of the Kennedy's trial. Accordingly, we overrule Kennedy's sixth point.
B. Kennedy's Extraneous Offense
In point seven, Kennedy complains that the trial court erred by allowing the jury to consider evidence of an extraneous offense at punishment because the evidence was legally insufficient to prove the offense beyond a reasonable doubt. Kennedy's complaint involves the uncorroborated testimony of Leon Winchester, who testified that she, Kennedy, and Shiffert committed an aggravated robbery on November 4, 2001. Defense counsel objected and informed the trial court that the State had not indicted Kennedy for the offense because it could not corroborate Winchester's accomplice testimony and that without corroboration the State could not prove the extraneous offense beyond a reasonable doubt. The State conceded that the Winchester's testimony was uncorroborated, but argued that corroboration was not required at the punishment phase. The trial court overruled defense counsel's objection and granted defense counsel a running objection throughout the testimony.
The trial court's decision to admit evidence is reviewed under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim App. 1996). Evidence of extraneous crimes or bad acts can be introduced during the punishment phase if it is shown beyond a reasonable doubt that the defendant committed them, even if they have not resulted in a conviction. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a). The State cannot convict a defendant with accomplice testimony alone and must corroborate the accomplice testimony with other evidence tending to connect the defendant with the offense committed. Id. art. 38.14 (Vernon 1979).
Although the Texas Court of Criminal Appeals has yet to determined whether article 38.14 applies to the punishment phase of a noncapital trial, it has held that corroboration is not required when the State offers testimony of an accomplice witness to prove (1) an extraneous offense at the punishment stage of a capital murder trial or (2) the use or exhibition of a deadly weapon. See Vasquez v. State, 56 S.W.3d 46, 48 (Tex.Crim.App. 2001); Jones v. State, 982 S.W.2d 386, 395 (Tex.Crim.App. 1998). Moreover, several Texas courts of appeals have held that the requirement of article 38.14 does not apply when the State offers testimony of an accomplice witness to prove extraneous offenses at the punishment stage of trial in a noncapital case. See Salazar v. State, 87 S.W.3d 680, 683 (Tex.App.-San Antonio 2002, no pet.); Megas v. State, 68 S.W.3d 234, 242 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); Goodman v. State, 8 S.W.3d 362, 364 (Tex.App.-Austin 1999, no pet.); Johnson v. State, 969 S.W.2d 134, 135 (Tex.App.-Texarkana 1998, pet. ref'd). Therefore, we join these courts in concluding that the trial court did not err in admitting the uncorroborated testimony at the punishment phase because corroboration was not required. See Salazar, 87 S.W.3d at 683; Goodman, 8 S.W.3d at 364; Johnson, 969 S.W.2d at 135. We overrule Kennedy's seventh point.
VII. CONCLUSION
Having overruled Kennedy's points on appeal, we affirm the trial court's judgment.
DISSENTING OPINION
I respectfully dissent from the majority's thoughtful opinion to the extent that it holds that the trial court did not err in admitting jail records containing extraneous offenses and acts of misconduct. I would hold the records inadmissible for multiple reasons.
I would initially hold the records are inadmissible hearsay under rule 803(8)(B) of the Texas Rules of Evidence because the records were generated by law enforcement personnel. Rule 803(8)(B) of the Texas Rules of Evidence is a limitation on rule 803(6) (business records) as well as on rule 803(8) generally. Rule 803(6) cannot be used to avoid the clear strictures of rule 803(8)(B). In addition to state rules and precedent, the Texas Court of Criminal Appeals has provided that we may look to federal cases, like Cain, for guidance as to the scope and applicability of the Texas Rules of Evidence because our rules were patterned after the federal rules. Specifically, because Texas Rule of Evidence 803(8) is worded almost identically to its federal counterpart, Texas courts weigh federal precedent more heavily in applying this exception.
See Tex. R. Evid. 803(8)(B) (providing that in criminal cases, public records and reports setting forth matters observed by police officers and other law enforcement personnel are not hearsay exceptions).
See Tex. R. Evid. 803(6), (8).
Cole v. State, 839 S.W.2d 798, 811 (Tex.Crim.App. 1990).
United States v. Cain, 615 F.2d 380, 380-82 (5th Cir. 1980).
Cole, 839 S.W.2d at 801.
Id. at 801-802.
In the case now before this court, the records in question, contained in a twenty-two-page exhibit, include (1) Appellant's booking questionnaire, including "Receiving Officer's Observations," "Receiving Officer's Screening Guidelines for Mental Disability/Suicide Risk," and "Medical Staff Recommendation;" (2) Disciplinary Reports; and (3) Disciplinary Hearing Reports, including guilty pleas, findings of guilt, and punishments assessed. The records contain allegations of crimes and acts of misconduct. The records also show that Appellant was incarcerated from November 2001 through late June 2002.
It is undisputed that the reports were made by law enforcement personnel. These reports are inadmissible for precisely the same reasons that the Cain court held the escape report made at a federal correctional institution was inadmissible. They are reports of crimes and acts of misconduct reported to or observed by law enforcement personnel. They also reflect law enforcement personnel's rulings regarding culpability and the punishment imposed by law enforcement personnel.
Cain, 615 F.2d at 380-82.
The majority classifies these reports as "routine, objective observations" made as part of the everyday function of classifying, housing, and managing inmates in the Tarrant County Jail. The majority's naive classification allows the clearly inadmissible evidence to be received through the same back door that the well-established law is designed to slam shut.
See, e.g., id.; Cole, 839 S.W.2d at 811; Willis v. State, 2 S.W.3d 397, 401 (Tex.App.-Austin 1999, no pet.).
The purpose of the disciplinary reports was to take disciplinary action against Appellant in an adversarial proceeding. This is the equivalent of an offense report to be used for the purpose of litigation. Our job is not to determine when to apply the Texas Rules of Evidence and when to ignore them. And rule 803(8)(B) is clear and unambiguous. As the Cain court unequivocally stated, evidence that is inadmissible under federal rule 803(8)(B) cannot be admitted into evidence through the back door as a business record under federal rule 803(6). Under Quezada, the mere transfer of Appellant from one cell to another, without stating reasons for the transfer, might be admissible, but that is not the circumstance before this court.
Cain, 615 F.2d at 380-82; see also Cole, 839 S.W.2d at 811.
United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir. 1985).
I would also hold the records inadmissible because they are prejudicial and inflammatory. At the guilt phase of a trial, they infringe on the presumption of innocence. At punishment, they are a comment on the evidence, just as the appearance at trial of the defendant in jail clothes or in shackles may constitute a comment on the evidence. The Marquez court adopted an abuse of discretion standard of review, stating that if a defendant is tried in handcuffs, the record must clearly reflect the reasons therefore: "The record must affirmatively reflect those reasons, not in general terms but with particularity." Similarly, if the trial court allows the jury to know that the defendant is incarcerated at the time of trial or was incarcerated for an extended period before trial, the record should clearly reflect the reasons mandating the jury's awareness of this fact.
See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976); Ephraim v. State, 471 S.W.2d 798, 798 (Tex.Crim.App. 1971).
See Marquez v. State, 725 S.W.2d 217, 227-28 (Tex.Crim.App.), cert. denied, 484 U.S. 872 (1987).
Id. at 227.
See id.
The disputed records show that Appellant was incarcerated pending trial for at least seven months. They are therefore a comment on the weight of the evidence. When such constitutionally infirm evidence is coupled with opinions of law enforcement officers regarding a defendant's acts of misconduct, the harm is substantial. When those officers are not available for cross-examination, the harm is overwhelming.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1370-71, 1373-74 (2004).
Consequently, I strongly but respectfully dissent from the majority's holding that the rule 803(6) business records exception overcomes the mandates of rule 803(8)(B), Crawford v. Washington, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and article 1, sections 10 and 19 of the Texas Constitution.
Id.