Opinion
No. 05-10-00181-CR
Opinion Filed June 17, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F08-47896-L.
Before Justices O'NEILL, FRANCIS, and MYERS.
OPINION
Kielle Dromone McNeal was convicted of murder and sentenced to fifty years in prison. In two issues, he argues (1) the evidence is factually insufficient to support the jury's rejection of his self-defense claim and (2) the trial court abused its discretion by refusing to admit portions of a videotaped interview that contained alleged party-opponent admissions. We affirm.
Background and Procedural History
The evidence at trial showed that appellant, Kielle or "Kilo" Dromone McNeal, shot and killed the complainant, Weldon "Glen" Liscum, III, on April 27, 2008. The dispute centered on whether appellant did so in self-defense. Julie Humes was the complainant's fiancé . An acknowledged methamphetamine user, she testified that, at the time of the shooting, she had dated the complainant for approximately six months, and he had asked her to marry him. They lived together in a three bedroom trailer at 338 East Malloy Bridge road, Seagoville, Texas, along with the owner of that trailer, Bobby Coppinger, and Chris Agnew. Another individual, Franklin "Doug" Ruff, who was a friend of complainant's, was also there. On the night before the shooting, two other women also stayed at the trailer: Rachael Pickard, who was appellant's girlfriend, and Melynda Dickey, Coppinger's sister. On the morning of the shooting, Humes woke up to the sound of an argument between Pickard and Dickey in the living room. Humes "heard something about a purse," and went back to sleep. The next thing that Humes remembered was Dickey "barreling" into the bedroom in a panic, asking Humes where her taser gun was. Humes did not answer. Dickey saw the taser gun on the bed and grabbed it. Dickey, however, had trouble operating the weapon, and when she could not make it work, she threw it down and picked up a cane. Humes picked up the taser and followed Dickey outside, where she saw appellant standing next to a dark blue or black Dodge truck, "irate" and "[j]ust cussing and carrying on. Pretty much trying to instigate a fight." Pickard was sitting inside the truck. Also outside were complainant, Agnew, Dickey, and Ruff. Standing on the trailer's front porch, Humes said, "I don't know if it's slipped y'all's mind, but we're in Seagoville. Looks like we're having a felon family reunion out here. We really don't need no heat." She added, "We need to break this up." Appellant called Humes a "bitch," at which point complainant moved slowly towards appellant. Humes told appellant that "if he did not leave, [and] if he was going to continue to try to start" trouble, she "would shock him with the taser." Appellant did not leave, and acted as though Humes was joking. Humes then underscored her warning by "popping" the taser gun. By this point, Pickard was screaming for appellant to get into the truck. Appellant eventually got in the truck, and he and Pickard drove away. Before leaving, however, appellant said several times, "I'll be back." Appellant returned to the trailer twenty to twenty-five minutes later, accompanied by Pickard and two other individuals. Complainant and Humes were outside when appellant drove up to the trailer in his truck. Complainant told Humes, "Go in the house." Humes testified that, when appellant got out of the truck, he had a gun in his hand. Complainant was holding a baseball bat. Humes told complainant, "[H]e's got a gun," and complainant kept telling Humes to go into the house. Humes recalled appellant repeating, "You want some now?" Humes also recalled appellant saying, "Oh, you're that white cracking-ass bitch this morning who was running her head." Appellant added, "Us niggas have something for white bitches like you to shut up." Humes assumed that appellant was alluding to some sort of sexual act. She told appellant, "Fuck you, nigger." Humes testified that appellant then pointed the gun at her and pulled the trigger, but it jammed. Appellant pulled the slide back, ejecting a bullet from the gun. Humes ran into the house, where Ruff was on the telephone calling the police. Humes immediately turned around and ran back towards the front door, but before she reached the door she heard a gunshot. Humes saw complainant stagger backwards, fall to his knees, and collapse. Appellant got back in the truck and drove away. Agnew chased the truck and hit it with a cane. Agnew testified that he lived at the trailer with complainant, Humes, and Coppinger, and that he saw methamphetamine used there. On the morning of the shooting, Agnew saw appellant arrive in a Dodge pickup truck with Pickard. Agnew also saw appellant and Pickard enter the house. From his bedroom, Agnew could hear what sounded like an argument, with people "yelling at each other." Appellant and complainant were "in each other's face, about the fight." Agnew tried to "break up the fight," after which the participants went outside. Agnew told appellant they "didn't need no trouble out here," and he urged appellant to leave. Humes went outside with the taser and "hit the button on it a couple of times[,] and that got [appellant's] attention." Appellant said, "I'll be back," and drove away. The trailer had surveillance cameras stationed at various points outside, and some of the rooms in the trailer had monitors that showed the outside of the trailer and the surrounding area from various angles. About twenty minutes after appellant drove away, Agnew was in his bedroom when he looked at a video monitor and saw appellant's truck reenter the trailer park. Agnew grabbed a cane and went outside "to help [complainant] out." Before going outside, he told the other occupants of the trailer, "They're back. They're back." Agnew "could see clearly that [appellant] ha[d] a gun pointed at [complainant]." Appellant said, "What's up now? What you gonna say now? What you gonna say now?" Then appellant shot complainant. Agnew heard only one shot. When complainant did not "go down" right away, Agnew thought appellant's gun might have been loaded with blanks, and he "started to edge up on" appellant with his cane. Appellant then pointed the gun at Agnew, and it looked to Agnew like appellant "tried to pull the trigger again," but the gun jammed. Appellant drove away and Agnew chased the truck, hitting it with his cane. Ruff testified that, on the morning of the shooting, he and complainant went to a salvage yard to search for automobile parts. They purchased car parts and returned to the trailer. Later, Ruff was inside when he heard a "commotion." He went outside and saw complainant and appellant "fixing to fight." The only weapon Ruff could see at that point was Humes's stun gun, which she used to break up the confrontation. Appellant left and then returned about twenty to thirty minutes later. When appellant returned, Ruff went outside and saw appellant holding a gun in his hand. It appeared as though appellant was trying to fire the gun at Humes. Appellant "[f]umbled" with the gun "for a minute," pointed it "kind of in between the shed and the house," and pulled the trigger. The shot did not hit anyone. There was a great deal of "hollering back and forth" between appellant and complainant. Ruff heard appellant say that he was going to shoot complainant. Ruff went inside to call 911. As he was "coming back out the door," he saw appellant shoot complainant. Pickard testified that she spent the night before the shooting at the trailer. The next day she discovered her purse was missing, and she suspected that Dickey had stolen the purse. Pickard went out with a friend "to do some things." During this time, Pickard consumed "a lot" of alcohol. She later told appellant about the missing purse, and that she suspected Dickey had stolen it. Pickard and appellant went back to the trailer, where Pickard and Dickey argued about the purse. Then appellant and complainant began to argue, and complainant told appellant to leave. The two of them continued to argue as they went outside, until Pickard and appellant drove away. They picked up two other people and drove to the home of a friend, Robert Fondren, where appellant retrieved a gun from inside the house and drove away. Pickard remained behind. After appellant left, she went outside and told Fondren that she thought something "bad" was "gonna happen." He replied, "He's gonna shoot him." Seagoville police detective Steven Davis testified that the truck, which belonged to Fondren, was found abandoned at a Texas Department of Health and Human Services parking lot, less than a mile from the crime scene. An informant later contacted the Seagoville police and told them where appellant could be found. Police went to the location provided by the informant, which was the home of a friend of appellant, and arrested appellant without incident. Complainant suffered a gunshot wound to the chest. He was treated by paramedics at the scene and died en route to a hospital. Seagoville police officer Ruben Peñ a was the first police officer to respond to the 911 "shots fired" call, and when he first arrived at the crime scene, he heard someone yell, "Kilo shot him." Peñ a found one spent shell casing at the trailer and one unspent shell on the ground, and the evidence suggested only one shot had been fired. Davis testified that officers found one spent shell casing, which suggested only a single shot had been fired. According to Jill Urban, a Dallas County Medical Examiner, complainant used methamphetamine at some point on the day of his death, but the drug did not contribute to complainant's death. Appellant testified that, on the day of the shooting, Pickard told him that someone at Coppinger's trailer had stolen her purse. Appellant and Pickard went to the trailer to retrieve the purse. The purse was important to appellant because it contained a medical document that showed he had recently been diagnosed with HIV. After Pickard went into the trailer, appellant waited outside until one of the other passengers of the truck pointed out that the occupants of the house appeared to be having an argument. Appellant went inside and found Pickard and Dickey standing "face-to-face" as if they were "about to fight." When appellant tried to separate them, Dickey told Pickard, "Well, you and your nigger boyfriend need to get out of here." Appellant asked if Coppinger was at home. Dickey said, "Get the fuck out of here, nigger," and spat at appellant. Complainant confronted appellant and "got in" his face. Appellant and Pickard decided to leave. As they were leaving, Humes yelled, "Beat your feet, nigger. You are in the wrong place now." They drove to Fondren's house, and appellant told Pickard to call Coppinger and tell him that he and appellant needed to talk "face-to-face." Appellant retrieved a gun that was hidden under Fondren's mattress. He intended to use it as a "scare tactic" in case Humes used her taser. Appellant hid the gun in the waistband of his pants, underneath his shirt. He waited approximately twenty to thirty minutes before driving back to the trailer because he hoped that "things had calmed down." When appellant got to the trailer, complainant said, "[W]e told you not to come back over here." Appellant replied, "Hold on, man. I don't know you, man." Appellant was calling for Coppinger when complainant raised the bat as if he was going to strike appellant. Appellant pulled out the gun, and a number of other people emerged from the trailer. Appellant heard someone yell, "Nigger, somebody gone [sic] die today." Meanwhile, complainant was "inching" closer and closer to appellant. Appellant "cocked" the gun and held "it up in the air." But when he tried to "cock it back," a bullet in the gun "got stuck." Appellant ejected the jammed bullet from the gun. Appellant initially testified that he was not trying to shoot anyone and that "the gun went off" after the jammed bullet fell out. But he later testified that he intentionally shot complainant because complainant was holding a bat and appellant feared for his life. Appellant stated: "That gun went off intentionally, for somebody to move away from me. I don't care if it went off two or three times, just don't hit me. That's what I'm saying." Regarding his decision to return to the trailer and bring a gun, appellant testified:Q. [Prosecutor]: And in that cooling-off period, you decide to grab a gun and go back.
A. [Appellant]: Oh, yes sir. After an experience with people like that, I'm going to have it for the next couple of days.
Q. [Prosecutor]: "People like that." Those people are violent. They're attacking you. You've told this jury they're racist. And so the decision you make is to get a gun and go back. Yes?
A. [Appellant]: Yes, sir.
Q. [Prosecutor]: Okay. So your decision was to go back into that?
A. [Appellant]: My decision was to go back.Appellant also testified that after shooting complainant, he drove away from Seagoville because he feared there "might be some trouble." He did not call the police. When he heard that someone had died following the confrontation at the trailer, appellant sold the gun for forty dollars and purchased beer and cocaine. He sold his cellular telephone because he suspected the police were listening to his conversations. Appellant then went to a friend's house, where he was subsequently arrested. The jury convicted appellant of murder as charged in the indictment. He was sentenced by the jury to fifty years in prison.
Discussion Sufficiency
In his first issue, appellant argues that the evidence is factually insufficient to support the jury's implicit rejection of his self-defense claim. The court of criminal appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Appellant was indicted for murder. He alleged self-defense. 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. Penal Code Ann. § 19.02(b)(1), (b)(2) (West 2003). The penal code also provides that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Id. § 9.31(a). Deadly force in self-defense is justified when a person reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful deadly force or to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Id. § 9.32; see also Schiffert v. State, 257 S.W.3d 6, 14 (Tex. App.-Fort Worth 2008, pet. ref'd). As the sole judge of a witness's credibility and the weight of the testimony, the jury may choose to believe or disbelieve all or any part of a witness's testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The principal testimony at trial that supported appellant's claim of self-defense was his own. Appellant admitted that he shot complainant, and claimed it was in self-defense because complainant was approaching him while wielding a baseball bat. But even though appellant testified that he acted out of fear for his life when he shot complainant, the jury could have reasonably concluded that appellant's conduct was inconsistent with a claim of self-defense. Humes testified that appellant was told to leave the property, but that after she fired the taser gun to warn appellant, he did not appear to take Humes's warning seriously, and acted as though she was joking. After appellant left the property, he waited approximately twenty to thirty minutes for "things" to calm down. Then he grabbed a gun that his friend had hidden under a mattress and drove back to the trailer in his friend's truck. Appellant did not report the allegedly stolen purse to the police. Witnesses saw appellant handle the gun after he got out of the truck, and saw him point the gun at Humes and attempt to shoot her before shooting and killing complainant. We also note that appellant fled the scene after shooting complainant. Flight is a circumstance from which an inference of guilt may be drawn. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) ("Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn. . . . Flight is no less relevant if it is only flight from custody or to avoid arrest."). The jury was free to reject some or all of appellant's version of the events, and having done so, the jury could rationally have found all of the essential elements of murder beyond a reasonable doubt. Viewed under the appropriate standard, the evidence is sufficient to support the jury's implicit rejection of appellant's claim of self-defense. We overrule appellant's first issue.The Videotaped Interview
In his second issue, appellant argues the trial court abused its discretion by refusing to admit portions of a videotaped interview of appellant conducted by Officer Davis. During the interview, appellant told Davis, according to Davis's testimony at a sub rosa hearing, "I didn't try to kill him." Davis said, "I know you didn't." A few minutes later, Davis told appellant: "I believe what you told me. I believe you. I've dealt with you too long. I can tell when you're telling the truth and when you're not." Defense counsel argued that the above portions of the interview were admissible under the exception to the hearsay rule concerning party-opponent admissions. The State argued that the officer was only using standard interview techniques and that the party-opponent rule did not apply. The trial court excluded the proffered evidence. A ruling admitting or excluding evidence is subject to an abuse of discretion review. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). Under the abuse of discretion standard, the appellate court must uphold the trial court's ruling so long as it is within the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002); see also Khoshayand v. State, 179 S.W.3d 779, 783 (Tex. App.-Dallas 2005, no pet.). Texas Rule of Evidence 801(e)(2)(A) provides that a statement is not hearsay if it is offered against a party and is the party's own statement in either an individual or representative capacity. See Tex. R. Evid. 801(e)(2)(A). Rule 801(e)(2)(D) states that a statement is not hearsay if it is offered against a party and is the statement of the party's agent or servant concerning a matter within the scope of the agency or employment, and was made during the existence of the relationship. Id. at 801(e)(2)(D). Rule 801(e)(2)(A) exempts party-opponent admissions because a party should not be allowed to exclude his own statement on the basis that what he said was untrustworthy. See Bell v. State, 877 S.W.2d 21, 24 (Tex. App.-Dallas 1994, pet. ref'd). There is no requirement in rule 801(e)(2)(A) which requires that the statement admit to an element of the offense in order to qualify as an admission. Perkins v. State, 902 S.W.2d 88, 98-9 (Tex. App.-El Paso 1995, no pet.). But as this Court has noted:The hearsay rule forbids evidence of out-of-court assertions to prove the fact asserted in them. The purpose behind the rule is to exclude evidence too unreliable to be evaluated accurately by the trier of fact. If the out-of-court statement is relevant only if the trier of fact believes that the statement was both truthful and accurate, then the statement is hearsay. If the relevancy of the statement does not hinge on the truthfulness of the statement, it is not hearsay.Bell, 877 S.W.2d at 24 (witness's testimony that individual told witness and defendant that victim had $1100 was not hearsay because State offered testimony to show defendant's motive to kill victim; whether victim actually had money was irrelevant). Texas Rule of Evidence 401 defines "relevance" as having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. Tex. R. Evid. 401. Even if evidence is relevant, a trial court may exclude it if its probative value is substantially outweighed by the needless presentation of cumulative, misleading, confusing, or unfairly prejudicial evidence. Tex. R. Evid. 403. "Cumulative" implies that other relevant evidence has already been received. Briones v. State, 12 S.W.3d 126, 128 (Tex. App.-Fort Worth 1999, no pet.). The wording of rule 403 suggests that where cumulative evidence is offered, exclusion is not mandatory, but only one alternative for a trial court to consider in promoting judicial efficiency. Id. (citing Alvarado v. State, 912 S.W.2d 199, 212-13 (Tex. Crim. App. 1995)). In the instant case, appellant argues that the officer's statements were admissible as party-opponent admissions. But even if one assumes for the sake of argument that the statements in question were party-opponent admissions, and relevant, otherwise relevant evidence may be excluded if its probative value is substantially outweighed by a danger that it will unfairly prejudice, confuse, or mislead the jury. See Tex. R. Evid. 403. Applying this principle, we conclude that the previously noted portions of the interrogation were properly excluded from evidence. During the sub rosa hearing, Davis explained that he did not actually believe appellant did not commit the murder, and he was merely following a standard law enforcement interview technique. Davis offered the following explanation of that technique: "Some of it is where you talk to the defendant and you try to give `em justification for the crime that they did. And that's the technique that I was using in this case." Moreover, appellant later testified at trial that he shot the complainant in self-defense. In addition to possibly confusing the jury and unfairly prejudicing the State's case, admission of the videotaped statements therefore would have been cumulative of appellant's evidence that his self-defense theory was believable. As the trial court noted in response to defense counsel's statement that he wanted to ask appellant questions regarding the videotape, "if [appellant's] saying the same thing that he's saying on the videotape, then the videotape itself is bolstering. And if it's not the same thing, then you're impeaching your own witness." The trial court did not abuse its discretion by excluding the videotaped statements from evidence. We overrule appellant's second issue. We affirm the trial court's judgment.