Opinion
No. 10-05-00411-CR
Opinion delivered and filed December 5, 2007. DO NOT PUBLISH.
Appeal the 85th District Court Brazos County, Texas, Trial Court No. 04-03420-CRF-85. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY concurs only in the judgment without a separate opinion.)
MEMORANDUM OPINION
Appellant, Timothy Lewis, was charged by indictment with the capital murder of Tyrone Fenner, Lewis's stepson. The jury found him guilty and assessed punishment at life in prison. On appeal, he complains that: (1) the trial court erred in excluding a witness's inculpatory statement; (2) the trial court erred in admitting a reference to an extraneous offense; and (3) the trial court erred in allowing a reference to his use of illegal narcotics. We will affirm the judgment.
Background
On June 22, 2004, police responded to a 911 call from the home of Lewis and Virginia, Tyrone's mother. Officer McCarthy arrived and observed that four-year-old Tyrone was lying unconscious in the living room. Virginia told McCarthy that she and Lewis were on the couch watching television when they heard a thud and that they both went upstairs and found Tyrone on the bathroom floor. Virginia called 911, while Lewis took the injured child downstairs, an ambulance arrived and Tyrone was transported to the hospital. While treating Tyrone, the emergency room physician showed Lewis bruises on the child's lower body, genitals, and thighs. A CT scan revealed a subdural hematoma of the right hemisphere of the brain consistent with a traffic accident or a fall from a high elevation. According to the physician, a fall from a toilet would not likely produce the injury. Tyrone was later flown to an Austin hospital where he died. The pathologist believed that the head injury was the cause of Tyrone's death and was the result of a non-accidental severe blow from perhaps a hand or fist. Abdominal and pelvic x-rays also showed signs of bruising of the liver, one kidney, and the spleen, all of which were consistent with blunt trauma. Tyrone died seventeen days after the injury when he was removed from life support due to severe, irreversible brain damage. The police investigated Tyrone's death and, upon speaking with Lewis and Virginia, received conflicting information on what happened on the day of Tyrone's injury. The police set up recorded phone calls between Virginia and Lewis. During the second phone call, Lewis told Virginia that his father had hired an attorney and wanted Virginia to come to the lawyer's office to speak with him. In neither call did Lewis confess his guilt. At trial, the State introduced two tape-recorded conversations made while Lewis was an inmate in the Brazos County Jail awaiting trial. During those conversations, Lewis referred to his use of illegal narcotics after Tyrone's injury and to a previous plea agreement on an unrelated offense. Both statements are at issue in this appeal. The jury heard testimony from Virginia regarding the day of the incident as well as previous disciplinary acts by Lewis against Tyrone. During cross-examination, Virginia was impeached several times and admitted to telling the police conflicting stories about what happened on the day of Tyrone's injury. The jury also heard testimony that seven weeks before the incident, Virginia allegedly stated that she hated kids and wished they would die. The evidence in the guilt-innocence phase is virtually uncontested. Lewis, however, argues on appeal that the trial judge erred in the admission and exclusion of evidence during the trial proceedings.Statement Against Interest
In his first issue, Lewis complains that the trial court erred in excluding the following statement allegedly made by Virginia, namely: "I hate kids. I hate kids. I wish they would die." He argues that Virginia's statement, made only seven weeks before her son's death, is probative of her state of mind and went towards the defense's theory that Virginia was the actual perpetrator. Lewis argues that the statement was admissible under Rule of Evidence 803(24) as a statement against interest because it is a statement that would make Virginia the object of disgrace. TEX. R. EVID. 803(24). Rule 803(24) provides that a statement against interest is not excluded by the hearsay rule. A statement against interest is:a statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in declarant's position would not have made the statement unless believing it to be true.TEX. R. EVID. 803(24). In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. See Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). A trial court has broad discretion in determining the admissibility of evidence, and that decision should not be reversed unless a clear abuse of discretion is shown. Montgomery v. State, 810 S.W.2d 372, 379-380 (Tex.Crim.App. 1990). In Burks v. State, we addressed whether a declarant's statement would qualify under the statement against interest hearsay exception because it subjected the declarant to ridicule or disgrace. Burks v. State, 40 S.W.3d 698, 700 (Tex.App.-Waco 2001, no pet.). There, the defendant was convicted of two counts of sexual assault and two counts of indecency with a child. Id. On appeal, the defendant complained that the trial court erred in excluding a note, allegedly written by one of the child victims, which intimated that the child victim had prior sexual relations. Id. The state objected that the note was hearsay, but the defendant claimed that the note should be admitted under Rule 803(24) because it would subject the child victim to "hatred, ridicule, or disgrace." Id. Burks is similar to the present case for three reasons: (1) both the declarant in Burks and Virginia denied making the statement at trial, (2) in both cases the person to whom the statement was allegedly made was antagonistic to the declarant and, (3) the statement was voluntary. See id. at 699-701. In Burks, we noted that:
Whether a statement is in fact against the interest of the declarant must be determined from the circumstances of each case. Devore v. State, 908 S.W.2d 608, 612 (Tex.App.-Austin 1995, pet. ref'd). To be excluded on the basis it would subject the declarant to hatred, ridicule, or disgrace, the statement must be in the context of the declarant's social interests. Owens v. State, 916 S.W.2d 713, 718 (Tex.App.-Waco 1996, no pet.). And, to qualify as an exception under Rule 803(24), the statement must be against the declarant's interest at the time it was made. Bell v. State, 877 S.W.2d 21, 24 n. 2 (Tex.App.-Dallas 1994, pet. ref'd).Id. at 701. We held that the note was not a statement against interest because it was made to a friend, boasting about having a sexual relationship. Id. at 700. Thus, for the purposes for which the statement was made and at the time it was made, it was not of a nature that would have subjected the declarant to "hatred, ridicule, or disgrace" such that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. Id.; see TEX. R. EVID. 803(24). We similarly view Virginia's statement at the time it was made not to be a statement against interest. The alleged statement was made to Virginia's mother-in-law when Virginia was nine-months' pregnant. A reasonable person could claim to hate children out of frustration and not because she actually harbors hate. This statement would not subject Virginia to "hatred, ridicule, or disgrace." It was also not so unreasonable that a person in her position would not have made the statement unless she believed it to be true. In addition, the alleged statement does not rise to the level seen in the cases cited by Lewis where courts held the hearsay statement to be against interest. See Franklin v. State, 992 S.W.2d 698, 706 (Tex.App.-Texarkana 2006, no pet.) (declarant stated he was H.I.V positive.); Purtell v. State 761 S.W.2d 360, 369 (Tex.App.-Texarkana 2002, pet. ref'd) (clergyman declarant stated he had a homosexual encounter in a public bathroom). Lewis also fails to identify any corroborating circumstances to indicate the trustworthiness of the statement. Dewberry, 4 S.W.3d at 751. It thus was within the trial court's discretion to determine that the statement did not come within the Rule 803(24) hearsay exception.
Prior Inconsistent Statement
Lewis additionally argues that Virginia's statement was not excludable hearsay because it also was offered as a prior inconsistent statement. See TEX. R. EVID. 801(e)(1)(A). The State counters that Lewis was attempting to use Virginia's prior inconsistent statement under the guise of impeachment for the primary purpose of placing before the jury evidence which is not otherwise admissible and which may be treated as substantive evidence. A party may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment evidence. Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999); Arrick v. State, 107 S.W.3d 710, 722 (Tex.App.-Austin 2003, pet. ref'd). In such a case, the party profits from the witness's testimony only if the jury misuses the impeaching evidence by considering it for its truth, and thus any probative value the impeachment evidence might have is substantially outweighed by its prejudicial effect. TEX. R. EVID. 403; Hughes, 4 S.W.3d at 5. In Hughes, the court looked squarely at whether the State could use a hearsay statement for impeachment purposes and held that a trial court abuses its discretion under Rule 403 when it permits a party to introduce otherwise inadmissible impeachment evidence for the primary purpose of placing it before the jury with the hope the jury will misuse it by considering it for its truth. Hughes, 4 S.W.3d at 5. Application of Hughes leads to the conclusion that the trial court did not abuse its discretion by excluding the question to Virginia about her alleged prior inconsistent statement to her mother-in-law. The record shows that Lewis called Virginia to the stand for the primary purpose of placing before the jury the inadmissible hearsay statement. Lewis had previously questioned Virginia on cross-examination during the State's case-in-chief. Lewis then later re-called her to the stand during his case-in-chief. Lewis immediately entered into the objected-to line of questioning, and after a lengthy bench conference, only asked one other brief question before passing the witness. On appeal, Lewis concedes that his main theory of the case was that Virginia inflicted the blows that caused Tyrone's death. He therefore wanted the jury to use the statement as substantive evidence to conclude that because Virginia "hated children, and wanted them to die," she killed her son Tyrone. Impeachment with this statement was unnecessary and would only encourage the jury to use the statement for its truth. Lewis performed an extensive cross-examination of Virginia, and she admitted to lying to the police on multiple occasions. Lewis sufficiently impeached Virginia's credibility, thus supporting the trial judge's belief that this was a subterfuge to get the hearsay statement before the jury. We thus overrule Lewis's first issue.Extraneous Offenses
In Lewis' second and third issues, he contends that the court abused its discretion by admitting statements in tape-recorded phone conversations that included references to a prior conviction and illegal drug use. The detectives arranged for Virginia to make recorded phone calls to Lewis in order to elicit incriminating statements. During these conversations, Lewis did most of the talking, and volunteered information about a plea agreement on an unrelated offense. He argues the evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice. Lewis specifically complains of the following statements made in a tape-recorded conversation that the trial court admitted:If you go to the pen I wanna go too, I wanna go cause I ain't fixin to let you hang like that for no reason cause I don't want myself to hang like that cause you know if I go to the pen that twenty years that they try to offer me when I got (not audible) whatever they try to get me for that and you ain't fixin to go nowhere. [Emphasis added].On appeal, the State argues that the reference to the plea offer on the unrelated offense does not constitute misconduct and therefore does not implicate Rule of Evidence 404(b). We disagree. A rational jury could believe that Lewis's reference to a plea agreement was evidence of another crime; therefore, Rule 404(b) is implicated. Under Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. TEX. R. EVID. 404(b). But the "other crime, wrong, or act" may have relevance "apart from character conformity; that it tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident." Montgomery, 810 S.W.2d at 388-89. The State does not argue that Lewis's statement was relevant to prove a material issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. TEX. R. EVID. 404(b). The State argues that if the remark is considered an extraneous offense, that it is relevant under Rule 403. See TEX. R. EVID. 403. The trial court impliedly agreed; it determined that the probative value outweighed the prejudicial impact of the evidence and overruled Lewis's Rule 403 objection. The trial judge stated that:
From the very moment of the 911 calls, in this case this defendant has been running his mouth apparently, and that's critical to both sides in this case because throughout this whole process he has been professing his innocence consistently and throughout this process the State has been interpreting his professions as indications of guilt. That's why all of this, I think, has to come in so that the jury can understand what his position is, so that they can understand what the detectives' take on it is; and that's — its for that reason that — normally some of this would be inadmissible; but because of the manner in which he has done this, I think its context becomes overpowering enough to make it admissible.Without deciding whether admission of the statement was error, we find that no harm resulted from its admission. Error under the Rules of Evidence in admitting evidence is nonconstitutional error governed by Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b); see TEX. R. EVID. 103(a); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App. 2002). In conducting a harm analysis under Rule 44.2(b), we decide, "whether the error had a substantial or injurious effect on the jury verdict." Morales v. State, 32 S.W.3d 866, 867 (Tex.Crim.App. 2000). We "consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error and how it might be considered in connection with other evidence in the case[,] . . . the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments, and voir dire if material to appellant's claim." Id. Lewis's remark was in the middle of the State's first tape-recorded conversation. It was not singled out at trial, nor did the State attempt to introduce other evidence regarding the previous offense. Although Lewis argues that during closing argument the State encouraged the jury to re-listen to the tapes, the remark in question was not discussed. Considering that Lewis made several recorded statements to police and the nature and extent of the remainder of the State's evidence, we cannot agree that the jury relied upon this remark in reaching its guilty verdict. After reviewing the record as a whole, we conclude that the admission of the statement probably did not influence the jury or had only a slight influence on its verdict. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). Finding the admission of the statement did not affect Lewis's substantial rights, we overrule issue two. We next turn to the similar issue of whether it was erroneous for the trial judge to admit statements regarding Lewis's illegal drug use. During a call with Virginia, Lewis admitted to smoking "wet" in the period between Tyrone's injury and his death. "Wet" is described later in trial testimony as a marihuana cigarette soaked in PCP (phencyclidine). Lewis specifically complains of the court's admission of the statement: "we rolled to Calvert, man. I smoked me some mother fucking wet." The trial court did not abuse its discretion in admitting testimony that Lewis smoked PCP-soaked marihuana shortly after Tyrone's hospitalization. Its probative value outweighed its unfairly prejudicial effect, as it suggested Lewis's lack of remorse or concern about Tyrone. See TEX. R. EVID. 403. Even Lewis concedes that this statement had tangential relevance to the fact that he admitted using drugs after the offense was committed. Additionally, the State argued that the statement showed Lewis's state of mind and rebutted his defensive theory, making it an exception to Rule 404(b). TEX. R. EVID. 404(b). We overrule Lewis's third issue.