Opinion
Nos. 05-01-01654-CR, 05-01-01655-CR.
Opinion Issued January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-49320-V and F01-49321-V. AFFIRMED.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
Cenca Andrey King appeals his convictions for murder and aggravated assault. A jury assessed punishment at forty-six years' confinement for the murder conviction and twenty years' confinement for the aggravated assault conviction. In five points of error, appellant complains the trial court erred in (1) admitting hearsay statements; (2) certifying the State's expert witness in the punishment phase of trial; (3) overruling appellant's objection during the State's closing argument during the guilt phase of trial; (4) denying appellant's motion for a mistrial when the State referred to appellant's post-arrest silence; and (5) admitting into evidence crime scene and autopsy photographs of wounds suffered by the victim during the offense. We affirm the judgments of the trial court.
Factual Background
Appellant and Shanita Perkins became romantically involved in April 2000. The relationship was troubled but the couple began living together with Perkins's grandmother, Carolyn Reeve, by Christmas of that year. After Christmas, appellant became jealous of Perkins. In January 2001, Perkins told Reeve, "Grandma, Cenca will hurt me." Around the second week in January 2001, Perkins also told Florine Crayton, her other grandmother, that she wished to end her relationship with appellant but could not because appellant threatened to kill her if she left him. On February 20, 2001, Perkins and appellant had an argument over the behavior of a mechanic working on a car near their residence. Appellant became angry and jealous. Reeve took appellant to his brother's house to retrieve some clothes for an upcoming trip to Houston. On the way, he complained that he mistrusted the mechanic. They returned to Reeve's home, made popcorn for Perkins's children, and the children watched a movie. Appellant and Perkins were in a bedroom when Reeve heard a gunshot. Reeve testified she ran into the bedroom and saw appellant holding a gun and Perkins lying across the bed, dead. Reeve asked appellant, "[W]hat have you done?" Appellant leveled the gun at her and fired, hitting her in the head. Reeve screamed, ushered her grandchildren out of the house, and fled to a neighbor's home. Appellant testified Perkins was changing clothes in the bedroom when she brushed against him, noticing a gun in his pocket. Perkins jumped back and grabbed the gun from his pocket. Appellant attempted to twist the gun from Perkins's hand and in the struggle, the gun discharged, hitting Perkins in the head and killing her. Distraught, appellant retrieved the gun from the bed and pointed it at himself. Reeve ran into the room, grabbed appellant's arm, twisting him around. The gun again accidentally discharged, hitting Reeve in the head. Appellant testified he never intended to shoot anyone. Reeve then ordered him to leave the residence. Subsequent medical examination revealed that Perkins died from two gunshot wounds to the head, one in front of the right ear and one behind the right ear. Both of the wounds were consistent with the muzzle of the gun touching the scalp at the time the shots were fired. Both of the bullets went through Perkins's skin, skull, and brain and were retrieved during an autopsy.Hearsay Statements
In his first point of error, appellant complains the trial court erred in overruling his hearsay objections to the statements made by Perkins to Reeve and Crayton. We review a trial court's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim. App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim. App. 1996). Absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. To be properly admissible, each level of hearsay must fall under an exception. See Crane v. State, 786 S.W.2d 338, 354 (Tex.Crim.App. 1990); Trussell v. State, 585 S.W.2d 736, 738 (Tex.Crim.App. 1979). At trial, Reeve testified Perkins told her, "Grandma, . . . Cenca will hurt me." Reeve did not know whether Perkins referred to physical or emotional hurt. Perkins's other grandmother, Crayton, testified Perkins told her appellant threatened to kill Perkins if she ended the relationship. Appellant objected to both of these statements as inadmissible hearsay. The trial court overruled these objections. The rules of evidence grant certain exceptions to the hearsay rule. Rule 803(3) contains the state of mind exception:Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.Tex. R. Evid. 803(3). Thus, a statement made regarding the declarant's then existing state of mind is admissible as an exception to the hearsay rule. Appellant argues rule 803(3) is not applicable to the statements made by Perkins to her grandmothers because the statements were made sometime prior to the offense and do not directly relate to Perkins's state of mind at the time of the offense. We disagree. There is no requirement that the statements be made at the time of the offense. The rule simply requires the statements reflect the declarant's state of mind at the time the statements are made. The statements reflected Perkins's state of mind, i.e., fear of appellant, at the time they were made and fall within the exception to the hearsay rule. See Martinez v. State, 17 S.W.3d 677, 688 (Tex.Crim.App. 2000). The trial court did not abuse its discretion in admitting the statements.
Confrontation Clause
As part of his first point of error, appellant contends the hearsay statements of Reeve and Crayton implicate the Confrontation Clause of the Sixth Amendment, thus violating appellant's federal constitutional right to confrontation. However, appellant did not preserve error on his Sixth Amendment claim. At trial, appellant objected to both Reeve's and Crayton's testimony on the grounds that they constituted inadmissible hearsay and that Crayton's testimony was irrelevant. Appellant did not object to the testimony on any other ground. Appellant has not presented his relevancy objection on appeal. Hearsay objections and objections to violations of the constitutional right to confront witnesses are neither synonymous nor necessarily coextensive. See Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991); Tapia v. State, 933 S.W.2d 631, 633 (Tex.App.-Dallas 1996, pet. ref'd). "Although the right of confrontation is vital to an ordered criminal justice system, and of constitutional magnitude it is nonetheless a trial right." Mallory v. State, 752 S.W.2d 566, 569 (Tex.Crim.App. 1988). Because appellant did not object to the testimony of Reeve and Crayton on the basis of the Sixth Amendment's Confrontation Clause, he waived review of this claim on appeal. See Tex. R. App. P. 33.1(a). We overrule appellant's first point of error.Expert Testimony
In point of error number two, appellant complains the trial court erred in permitting Jennifer Deliganis to testify as an expert witness in the punishment phase of trial. Deliganis testified to the effect Perkins's death has had on Perkins's children. Appellant argues Deliganis is not qualified as an expert and her use of "play therapy" to diagnose the children as suffering from post-traumatic stress disorder is not a legitimate field of expertise. Appellant also argues Deliganis had no basis for her opinion that Torri Perkins suffered from post-traumatic stress disorder related to the death of his mother because she had no knowledge of his behavior prior to the death of his mother. These arguments are without merit. Texas Rule of Evidence 702 provides:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.Tex. R. Evid. 702. Thus, the rule requires the proponent of the testimony to establish (i) the scientific, technical, or other specialized knowledge will aid the trier of fact, and (ii) the expert is qualified to testify on the subject. Roise v. State, 7 S.W.3d 225, 234 (Tex.App.-Austin 1999, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App. 1995)), cert. denied, 531 U.S. 895 (2002). When determining whether an expert is qualified, the judge should consider whether (i) the expert's field of expertise is a legitimate one, (ii) the subject matter of the expert's testimony is within the scope of that field, and (iii) the expert's testimony properly relies on and/or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (1998). The expertise must be measured against the particular opinion the expert is offering. Roise, 7 S.W.3d at 234. Furthermore, rule 702 and the case law interpreting it provide that experience alone can provide a sufficient basis to qualify a witness as an expert. Carter v. State, 5 S.W.3d 316, 319-20 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Deliganis presented her qualifications as: (1) a master's degree in counseling and marriage and family therapy; (2) three and one half years experience and training working with children and adolescents; (3) one and one half years training in post traumatic stress disorder working with traumatized children and adolescents under the supervision of a licensed social worker and counselor; (4) attendance at various workshops and continuing education classes; and (5) attendance at play therapy workshops. Deliganis testified she was not a play therapist, but used the play therapy room for her sessions with the Perkins children because they were more comfortable in that environment. She has been counseling the Perkins children for one hour each week. This counseling included interacting with them while they played, observing them while they played, and obtaining reports from the people with whom they lived. From this information, she determined the extent of the trauma the children were experiencing as a result of the death of their mother. Deliganis testified that Torri is quiet, sensitive, and thoughtful. His symptoms of post-traumatic stress disorder include anxiety, irritability, and aggressive behavior. Based on her education and experience, her interaction with and observations of the children, together with the reports she received from their primary care givers, we hold the trial court did not abuse its discretion in qualifying Deliganis as an expert in the field of counseling and family therapy and allowing her to testify in the punishment phase of trial. Even had the trial court abused its discretion in allowing Deliganis to testify, such error was harmless. In addition to the testimony of Deliganis, there was additional testimony from Mary Perkins, Perkins's stepmother, relating to the effect the death of Perkins has had on her three young children. Mary testified the Perkins children began living with her on February 11, 2001. Torri, who was seven years old, was withdrawn, wanted to be held like a baby, cried a lot, refused to be alone, and insisted the lights remain on. Mary testified she had to care for him as if he were a little baby, including bathing him, combing his hair, brushing his teeth, and feeding him. He remained like this for several weeks. Torri no longer wanted to play with other children and wanted both Mary and her husband to remain with him at all times. If they left him, he was concerned that they remained safe. At night he began wetting the bed and had nightmares. He became violent and destructive. This continued until April or May and began again when the trial started. Appellant did not object to this testimony at trial. "[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling." Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (en banc). We overrule appellant's point of error number two.
Jury Argument
In his third point of error, appellant argues the trial court erred in overruling his objection during the State's closing argument at the punishment phase of trial. Proper jury argument falls within one of four areas: summation of the evidence; reasonable deduction from the evidence; answer to argument of opposing counsel; and pleas for law enforcement. Kirk v. State, 866 S.W.2d 265, 266 (Tex.App.-Dallas 1993, no pet.). Improper jury argument constitutes reversible error when, in light of the record as a whole, it is extremely or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused in the trial proceeding. Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App. 1985). The prosecutor's remarks must have been a wilful and calculated effort to deprive the defendant of a fair trial. Westbrook v. State, 29 S.W.2d 103, 115 (Tex.Crim.App. 2000). In determining whether reversal is required, the court considers the severity or magnitude of the remarks, curative measures taken, and certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g). During closing argument the State argued:The defense attorney also talked about life sentences and what happens in this case and this and this case. He also brought up what if they kill two people. If they kill two people it's capital murder in Texas and they can be subject to the death penalty. [Appellant] is very lucky he didn't also kill Carolyn Reeve or he could be looking at the death penalty.These remarks were made in response the following remarks made during closing by appellant:
And if you go to — if you do what the State is going to suggest, that you give the maximum in both of these sentences, what do you do — what do you do if you've got somebody who, let's say, has been to the penitentiary before? What kind of sentence do you give him? A life sentence also?
What would you do if somebody had been to the pen twice before? Does he get super improved life?
What happens if somebody has been to the penitentiary three or more times or kills more than one person? Do these people get new improved super heavy duty life? No. The life sentence for anybody convicted is the same all the way across the board.We hold the State's argument, if improper, was harmless. The State's remarks were not a wilful and calculated effort to deprive appellant of a fair trial. See Westbrook, 29 S.W.3d at 115. Additionally, no further mention was made by the State of capital murder or the death penalty during argument. In light of the evidence of the nature of the offense and the injuries suffered by Reeve, it was likely appellant would have been given a harsh punishment even had the argument not occurred. See Mosley, 983 S.W.2d at 259. We overrule appellant's point of error number three.