Opinion
No. 05-15-01070-CR
02-07-2017
ALLEN NASH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1476769-R
MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Schenck
Allen Nash appeals his conviction for aggravated kidnapping with the intent to inflict bodily injury. In his first six issues, appellant contends the trial court erred by denying his request for a jury instruction on a lesser included offense, overruling his objections to evidence, denying his motions for mistrial, and not allowing him to develop evidence to support his defense theory. In his seventh and eighth issues, appellant argues the judgment should be reformed to reflect that no plea bargain agreement was entered into between the parties and that he proceeded to a jury trial after entering a plea of not guilty. We modify the judgment and affirm the judgment as modified. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant met the complainant S.E. in the summer of 2014. They communicated via social media for several months and met in person before S.E. agreed to go on a date with appellant on November 30. S.E.'s friend Shameala Taylor agreed to care for S.E.'s children that night.
Appellant picked up S.E. for their date, and they went to a spa and club, staying out until the early hours of the morning. They briefly interrupted their date early in the evening to visit Taylor's home to take a breathing machine to one of S.E.'s children. They returned to S.E.'s home around 5:00 a.m. and had consensual sex. Suddenly, appellant and S.E. heard a loud commotion outside her apartment. Appellant ran back and forth to the window to see what was going on and yelled at S.E. to tell him where his money was. S.E. told him she did not know what he was talking about, but she could see he was angry, so she went down to his car to look to see if he had left his money there. Appellant followed S.E. down to the car. After looking in appellant's car and not finding any money, S.E. told appellant she had not found his money, and they went back upstairs to her apartment. S.E. texted Taylor to come to her apartment because appellant was "tripping." Appellant saw her texting, grabbed her phone, and put the phone in his pocket. Appellant began looking all over S.E.'s apartment for his money. S.E. told him whenever he found his money he needed to leave. He then grabbed S.E. by her hair and the back of her neck and dragged her outside while yelling at her to find his money. Appellant forced S.E.'s head into his car, and then he choked her, insulted her, and told her to "go to sleep." S.E. blacked out.
When S.E. woke up, she was in appellant's car, and they were driving down the highway. Appellant yelled at S.E. saying he would take her to his brother's house, he would push her out of the car, he was going to kill her, and he would kill her children. S.E. begged appellant to let her out of the car and attempted to get out, but appellant continued screaming at her and hit her while he was driving. Appellant arrived at an apartment S.E. was not familiar with, and S.E. tried again to get out of the car. She begged appellant to let her out so she could look for his money. Appellant allowed her out of the car where she fell to her knees and begged him not to kill her. Appellant, angry that S.E. was making a commotion, demanded that S.E. get back in the car. S.E. felt like she could not run away, so she got back in the car.
Appellant, suddenly calm, drove S.E. back to her apartment. Along the way, he told her the $10,000 dollars he was missing was nothing, he would take S.E. back to her home, and if she tried to run or scream, he would shoot her in her face. Although S.E. had not seen a gun, she believed he would kill her. When they arrived at S.E.'s apartment at approximately 7:00 a.m., they went to her bedroom where he told her to take off her clothes and lie down, which she did. S.E. closed her eyes and asked appellant to leave. Appellant laid down with S.E. and began performing a sex act. S.E. cried and begged him to stop. She pretended to sleep and then fell asleep from exhaustion. She woke up when Taylor knocked at her door. Appellant was asleep, so S.E. ran to the door. Taylor observed that she was bruised badly and acting scared. S.E. told Taylor what had happened that night and morning, and Taylor left S.E.'s apartment to find someone to help to get appellant out of S.E.'s home. S.E. went back to her bedroom, and appellant woke up and yelled at her for making him hit her earlier that morning. Appellant then left S.E.'s apartment, and S.E. locked the door behind him. Thereafter, Taylor returned to S.E.'s apartment.
S.E. called the police who arrived a few hours later. Dallas Police Officer Kevin Ray Stovall responded to the 9-1-1 call and testified S.E. appeared to have been severely beaten and was upset and crying. After several attempts, S.E. was able to describe what happened to the police officer. Taylor then took S.E. to the hospital for treatment. S.E.'s injuries included a black eye, burst blood vessel in her eye, one eye swollen shut, fractured cheek, bruised hip, bruised neck, and knots on her forehead.
Appellant was charged by indictment with aggravated kidnapping enhanced with one prior conviction. He entered a plea of not guilty and was tried before a jury. After the jury found appellant guilty of aggravated kidnapping with intent to inflict bodily injury, he pled true to the enhancement paragraph and was sentenced by the jury to five years' imprisonment and a $5,000 fine.
DISCUSSION
I. Instruction on a Lesser Included Offense
In his first issue, appellant argues the trial court erred by denying his requested jury instruction on the lesser included offense of Class A misdemeanor assault. Appellant specifically contends that from the evidence presented "[a] rational jury could have easily believed that, while appellant beat S.E., he never abducted her."
A defendant is entitled to an instruction on a lesser included offense if the proof necessary to establish the charged offense also includes the lesser offense and if the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense. Id. at 383. The evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Id. at 385. We review a trial court's decision to submit or deny a lesser included offense instruction for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).
A. Application of Law to Facts
As to whether there is some evidence that would permit a rational jury to find that, if the appellant is guilty, he is guilty only of the lesser offense, the complainant testified that appellant committed aggravated kidnapping as alleged in the indictment. The record would have to contain some evidence that would allow a jury to find that appellant committed only the offense of assault without finding he committed aggravated kidnapping as alleged in the indictment. Appellant did not testify at trial or offer evidence that, if guilty, he was guilty of only assault. Speculating, as appellant asks us to do, about the credibility of the complainant and arguing that the jury could have found her testimony not worthy of belief does not establish entitlement to assault. See Cavazos, 382 S.W.3d at 385 (evidence that a defendant pulled out a gun, pointed it at someone, pulled the trigger twice, fled the scene, and later told a friend "I didn't mean to shoot anyone" did not rationally support an inference the defendant acted recklessly when he fired the shots sufficient to require an instruction on manslaughter); Palmer v. State, 471 S.W.3d 569, 571 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (evidence defendant reached into parked truck, removed a cardboard box, set it down a short distance from the truck, and sat down on the curb next to it not sufficient to require instruction on attempted theft). The trial court did not err in refusing to submit a charge on the lesser included offense of Class A assault.
We overrule appellant's first issue. II. Objections and Motions for Mistrial
A. Detective's Testimony
In his second and third issues, appellant argues the trial court abused its discretion by overruling his objection and denying his motion for mistrial made after the investigating detective's testimony that appellant admitted S.E. was in his car on the night of the offense. Appellant contends this testimony was a non-responsive answer that bolstered the complainant's testimony.
During defense counsel's cross-examination of the investigating detective, Detective Frank Carcone, the following exchange occurred.
DEFENSE COUNSEL: Okay. Now, you were given information that she, as in [S.E.], was taken in Allen Nash's vehicle and taken and driven around Dallas, or some location, correct?
DETECTIVE CARCONE: Yes.
DEFENSE COUNSEL: Okay. And you actually had Allen's vehicle in your possession, correct?
DETECTIVE CARCONE: Correct.
DEFENSE COUNSEL: And you were in a position to swab the car, correct?
DETECTIVE CARCONE: Correct.
DEFENSE COUNSEL: And do all that fancy stuff you have to do that would corroborate [S.E.]'s story, correct?
DETECTIVE CARCONE: —[S.E.] and Mr. Nash corroborated that story—
DEFENSE COUNSEL: Your Honor, I'm—
DETECTIVE CARCONE: —by saying that—
DEFENSE COUNSEL: —going to have to object—
DETECTIVE CARCONE: —yes, she was in the car. They both admitted they were in the car.
DEFENSE COUNSEL: I'm going to have to object, and I'd like to approach the bench, please.
Outside the presence of the jury, the defense counsel argued:
The . . . detective just blurted out, and it wasn't in response to my question, my specific question about my client making a statement corroborating everything that S.E. said. And . . . I ask for a mistrial.
The prosecutor responded that the detective was referring to a Mirandized statement not offered to be admitted into evidence. The trial court held a hearing on the admissibility of appellant's statement to the police and ruled that it should not be suppressed. The trial court denied defense counsel's motion for mistrial, but offered to instruct the jury to disregard. The trial court did not explicitly rule on the responsiveness objection, and defense counsel did not request an instruction.
We have previously held that not every unresponsive answer should be stricken. Smith v. State, 763 S.W.2d 836, 841 (Tex. App.—Dallas 1988, pet. ref'd). A "nonresponsive" objection alone merely informs the trial court why the objection was not made prior to the answer being given. Id. In order to properly exclude evidence or obtain an instruction to disregard, a party must address in its objection both the non-responsiveness and the inadmissibility of the answer. Id.
In his reply brief, appellant clarifies that his complaint was only that the trial court abused its discretion in permitting the detective's non-responsive testimony and that he did not complain that the trial court abused its discretion in ruling bolstering was proper. Because appellant failed to argue on what basis the detective's statement was inadmissible, we hold that appellant waived any complaint about the trial court's decisions to overrule appellant's objection and to deny appellant's motion for mistrial. See Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (holding that an appellant's general complaint, which the trial court understood to challenge the responsiveness of the answer failed to preserve any complaint about the trial court's failure to instruct the jury to disregard). Accordingly, we overrule appellant's second and third issues.
Appellant further argues the harm that resulted from this alleged error was improper bolstering, but a harm analysis is employed only when there is error. Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App. 2004) (en banc).
B. 9-1-1 Call
In his fourth issue, appellant argues the trial court abused its discretion by denying his motion for mistrial made after the jury heard a tape recording of a 9-1-1 call in which S.E. stated that she thought appellant might be a pimp. Appellant avers this portion of the 9-1-1 call constituted evidence of an extraneous offense.
During the State's direct examination of S.E., it introduced a portion of the call she placed to 9-1-1 after appellant left her apartment. The jury heard S.E. comment about appellant: "I think he's supposed to be a pimp or something." Immediately thereafter, defense counsel requested to approach the bench and made the following motion for mistrial outside the presence of the jury:
Okay. At this time, the Defense would move for a mistrial. We had a motion in limine that any and all extraneous offenses, specifically any indication mentioned whatsoever of my client being a pimp, on the 911 call[,] she blurted it out in the 911 call. It was supposed to be redacted before it went to the jury, that ["]I think he's supposed to be a pimp.["] So for that reason, I object to it going before the jury, and I also now object and I'd like to ask for a mistrial.
The trial court denied the motion for mistrial and offered to instruct the jury to disregard the comment. Defense counsel offered further argument in support of her motion for mistrial, which the trial court denied. Appellant then accepted the trial court's offer of instruction, and the trial court instructed the jury to disregard the statement on the 9-1-1 call that said, "I think he's supposed to be a pimp or something." Thus, the only times the jury heard the appellant referred to as a pimp were the portion of the 9-1-1 call and the trial court's instruction to disregard the reference.
While a motion in limine standing alone does not preserve error, error can be preserved by a timely objection made in a hearing outside the presence of the jury. Manns v. State, 122 S.W.3d 171, 190 (Tex. Crim. App. 2003). However, the record reveals that appellant failed to raise an objection regarding extraneous offenses at the time the 9-1-1 call was offered and admitted into evidence. Nor did appellant or his defense counsel request a continuance to listen to the tape recording before it was admitted into evidence. Instead, appellant objected only after the objected to portion of call was heard by the jury. Appellant failed to preserve his complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1).
We overrule appellant's fourth issue. III. Alternative Perpetrator Defense Theory
In his fifth and sixth issues, appellant contends the trial court abused its discretion by not allowing his defense counsel to develop evidence of prior acts of violence committed against complainant by S.E.'s ex-boyfriend, "Mike D." He argues the trial court erred by not allowing his defense counsel to introduce a police report on a prior assault committed by Mike D against S.E. and complains the trial court sustained several objections by the State to questions he sought to pose to S.E. and other witnesses about Mike D. He argues that through these questions and with the police report he was attempting to establish an alternative defense at trial that he was not the person who assaulted S.E..
A. Standard of Review & Applicable Law
We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). Further, the trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id. at 95. A trial judge abuses his discretion when his decision falls outside the zone of reasonable disagreement. Id. at 83.
Although a defendant obviously has a right to attempt to establish his innocence by showing that someone else committed the crime, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged alternative perpetrator. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). It is of course impossible to articulate any bright-line definition of the extent or quality of evidence necessary to establish a nexus between the offense and allegedly guilty third party, but Texas jurisprudence is clear that evidence of third party guilt is inadmissible if it amounts to mere speculation that another person may have committed the offense. Dickson v. State, 246 S.W.3d 733, 739 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). Further, it is not sufficient for a defendant merely to offer up unsupported speculation that another person may have committed the crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on emotion or prejudice. Wiley, 74 S.W.3d at 407 (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998)).
B. Application of Law to Facts
Here, appellant sought to admit a police report on a prior assault by Mike D against S.E. and to ask questions of S.E., Taylor, and the investigating detective—all of which were objected to by the prosecutor—about Mike D's relationship with S.E. and his criminal history. Defense counsel also made a bill of exceptions concerning the questions she wanted to pose to S.E. and the other witnesses about Mike D. She would have asked the investigating detective about whether he looked into Mike D's criminal history, whether he knew of the prior assault case against Mike D, and whether he interviewed Mike D about S.E.'s allegations against him. She would have asked S.E. about her relationship with Mike D and his assault of her in June 2014, five months before the offense at issue. She also would have asked S.E. if she accused appellant of assaulting her because appellant did not pay for her services and generally what her motivation was for accusing appellant. In addition to these questions, appellant points to the record where his father testified at a bond-reduction hearing prior to trial that Mike D had repeatedly called him to "get $25,000 from [him] to tell the truth about what happened in this case." And he cites his own testimony that he did not feel he was getting a fair trial because the trial judge would not allow evidence that S.E. made false reports on another person for beating her and that S.E. made the same accusations against Mike D as she did against appellant.
Appellant argues the foregoing evidence and the answers his defense counsel would elicit from the objected-to and proposed questions could support two defense theories involving Mike D. His first theory is that S.E. had a pattern of filing charges against men for assault and then having Mike D call the family to extort money from them in exchange for dropping the charges. An alternative theory appears to be that S.E. was an escort and Mike D was her pimp and Mike D beat S.E. for providing her services to appellant without receiving payment.
We cannot conclude that appellant has satisfied the requirement of a nexus between Mike D and the offense at issue. Regardless of the theory advanced at trial, appellant has not offered any evidence that Mike D was seen with S.E. the night or morning in question. Instead, both S.E. and Taylor testified it was appellant that was with S.E. that night and morning. Thus, even assuming the jury believed that Mike D attempted to extort money from appellant's father for his testimony, the jury would still have no basis to conclude that it was Mike D who assaulted S.E. at the time of the offense at issue. Appellant's other theory that Mike D beat S.E. for failing to obtain payment from appellant for her services appears to rely solely on speculation that Mike D and S.E. were still involved at the time in question when the only evidence in the record showed S.E. was adamant that her relationship with Mike D was over as of November 2014. The proffered evidence amounts to no more than speculative blaming of Mike D. See Wiley, 74 S.W.3d at 407.
Under these circumstances, we conclude the trial court did not abuse its discretion in excluding the evidence offered or in limiting defense counsel's cross-examination. We overrule appellant's fifth and sixth issues. IV. Modification of Judgment
In his seventh and eighth issues, appellant argues the judgment should be reformed to reflect that no plea bargain agreement was entered into between the parties and that he proceeded to a jury trial after entering a plea of not guilty. The State concedes appellant's contentions on this issue and further notes the judgment also erroneously reflects that appellant waived a jury trial. The judgment in this case recites that the plea to the offense was guilty and that the terms of plea bargain were five years' imprisonment and a $5,000 fine, and appellant waived a jury trial. Because the record clearly reflects there was no plea bargain agreement, appellant entered a plea of not guilty, and a jury convicted appellant and sentenced him to five years' imprisonment and assessed a fine in the amount of $5000, we sustain appellant's seventh issue.
Additionally, we note that while the record reflects appellant entered a plea of true to the enhancement paragraph and the jury found the enhancement paragraph true, the judgment indicates no plea or finding on the first enhancement paragraph. We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P.43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we modify the judgment as follows: (1) the title should read "judgment of conviction by jury"; (2) the section titled terms of plea bargain should read "N/A"; and (3) the section titled plea to offense should read "not guilty."
CONCLUSION
As modified, we affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 151070F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1476769-R.
Opinion delivered by Justice Schenck, Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: (1) the title should read "judgment of conviction by jury"; (2) the section titled terms of plea bargain should read "N/A"; and (3) the section titled plea to offense should read "not guilty." As modified, the judgment is AFFIRMED. Judgment entered this 7th day of February, 2017.