Opinion
05-22-01166-CR
06-20-2024
ANTHONY SCOTT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47 221166F.U05
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F20-76179
Before Justices Partida-Kipness, Pedersen, III, and Garcia
MEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
The jury found appellant Anthony Scott guilty of murdering Taisha Carter and assessed his punishment at life in prison and a $10,000 fine. In two issues, appellant argues that (1) although he caused the complaining witness's death, he did so under the immediate influence of sudden passion, and (2) the State improperly commented on his constitutional right to remain silent. We affirm the trial court's judgment.
BACKGROUND
Carter was shot on a May 2020 afternoon, while she was walking with her friend Daijah Ware toward a Dallas DART station. Ware testified at trial that as the two women crossed a street, she heard a noise she described as a "pop"; she turned and saw someone wearing a black ski mask, white t-shirt, and black pants shooting at them. Ware was shot once and was taken to Methodist Hospital and treated. Carter was shot four times, including once in the back. She was also taken to Methodist, but she was pronounced dead within minutes of arriving there.
Dallas Police investigated the scene and collected evidence including a black ski mask, five .40 caliber casings, and surveillance videos showing the suspect- dressed as Ware described-running with a gun. The police received calls connecting Carter with a February 2020 robbery, and the casings found at the scene were matched to ones found after an April 2020 aggravated assault. Police developed a list of names linked to these incidents, including the February robbery victim, Javonus Hogg, and a minor referred to as M.W. Investigations into the social media of these individuals led to identification of a friend of theirs who looked similar to the shooter in the surveillance video; the friend was identified as appellant. At trial, the State presented testimony concerning DNA tests performed on the ski mask; the results matched a swab taken from appellant.
Appellant testified on his own behalf at trial, and, for the first time, admitted to shooting Carter and Ware. He explained that he had come into contact with Carter, her boyfriend Kewon White, and some of their friends earlier in 2020 when that group had robbed and shot at his friend, Hogg. A short time after that, White and Carter had shot at Hogg's house. Appellant testified that Hogg and he had received threats from this group of people that he took seriously. He purchased a number of guns during this time because he thought he needed protection.
On the afternoon of the shooting, appellant was taking an Uber to a friend's apartment. While the car was stopped at a light, he saw Carter and Ware walk across the street, and he and Carter "locked eyes." Appellant then saw Carter look at her phone as if making a FaceTime call, and he panicked. He testified he was afraid that Carter was calling White to come and hurt him. Appellant then got out of the car, pulled down the ski mask he was wearing as a beanie, came up behind the women, and fired his gun at them. He acknowledged that he shot Carter in the back. There was evidence that after his arrest appellant repeatedly told people he would "beat" the murder charge; he testified that was because he believed he shot Carter in self-defense.
The jury found appellant guilty of murder; it rejected his justification of self-defense. In the punishment phase the jury rejected appellant's claim that he shot Carter while under the immediate influence of sudden passion. They assessed his punishment at life in prison and a $10,000 fine.
This appeal followed.
DISCUSSION
We address appellant's issues in turn.
Sudden Passion
In his first issue, appellant contends the evidence shows that he caused Carter's death under the immediate influence of sudden passion. The Texas Penal Code's murder statute provides that-at the punishment stage of his trial-the defendant may raise an issue as to whether he caused the complaining witness's death "[a] under the immediate influence of sudden passion [b] arising from an adequate cause." Tex. Penal Code Ann. § 19.02(d). The statute provides definitions of the key terms in both prongs of this defense. It defines "sudden passion" to mean:
Under our current statutory scheme, the question of whether a defendant killed while under the immediate influence of sudden passion is a punishment issue. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). The defense is "a mitigating circumstance that is relevant to determining the appropriate punishment of a defendant." Beltran v. State, 472 S.W.3d 283, 293 (Tex. Crim. App. 2015). A murder committed under sudden passion is a second-degree felony, with a maximum punishment of twenty years' imprisonment. Penal §§ 19.02(d), 12.33(a).
passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.Id. § 19.02(a)(2). And it defines "adequate cause" to mean:
cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.Id. § 19.02(a)(1).
Standard of Review
The defendant has the burdens of both production and persuasion with respect to the issue of sudden passion. Wooten, 400 S.W.3d at 605. We have recently addressed in depth the standard of review for analysis of a sudden passion defense. See Bullock v. State, 673 S.W.3d 758, 764 (Tex. App.-Dallas 2023, no pet.). We review a negative finding on sudden passion for legal and factual insufficiency. Id.
Our legal sufficiency standard in this case mirrors the legal sufficiency standard employed in civil cases. Id. We review the record for a scintilla of evidence to support the negative finding and disregard all evidence to the contrary unless a reasonable factfinder could not. Id. If we find no evidence that supports the negative finding, we consider whether the contrary proposition-i.e., the presence of sudden passion-was established as a matter of law. Id. We defer to the factfinder's determinations concerning the credibility of testimony and the weight to give to evidence. Id.
If we conclude that the evidence is legally sufficient, we address factual sufficiency. Id. We examine all of the evidence in a neutral light. Id. We will not overturn the negative finding unless-after setting out the relevant evidence supporting the verdict-we can say "the verdict is so against the great weight and credibility of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased." Id.
Legal Sufficiency of Evidence
We look primarily to appellant's own testimony when reviewing the evidence of sudden passion. We conclude that the following testimony supports the jury's negative finding on the issue:
. When asked why he shot Carter, appellant responded: "Because I was afraid. I was scared of her and the people that she hung with," specifically White, her boyfriend.
. Appellant testified that in February of 2020, Carter, White, and White's friends shot at Hogg, and in March of 2020, they shot at Hogg's house.
. On cross-examination, appellant explained Carter's shooting this way: "It was because I looked at her and got scared because of the people that she knew, and the things that she was saying, and the situation that was going on at the time."
. When asked whether Carter was armed, appellant answered, "Not that I know of." The prosecutor then asked: "So you didn't see any weapons on her, but yet you still chose to use that .40 Taurus and shoot her?" Appellant responded: "Right. Because I [saw] her with her phone, like she was on FaceTime. I thought she was calling [White] and his friends. I panicked, like I said."
In sum, appellant testified that he shot the women because he was afraid of Carter and people she knew and "hung with." But his fear did not arise from Carter's being armed as she apparently was months before. Instead, he was afraid that she might be calling White, who was not present, but who might arrive, and who then might hurt him. Fear alone does not raise an issue of sudden passion arising from adequate cause. Bullock, 673 S.W.3d at 763-64. And fear of someone based on conduct two to three months earlier, cannot meet the standard of "passion [that] arises at the time of the offense" and "is not solely the result of former provocation." See Penal § 19.02(a)(2). We conclude this evidence is legally sufficient to support the jury's negative finding on sudden passion.
Factual Sufficiency of the Evidence
To evaluate the factual sufficiency of the jury's negative finding on sudden passion, we examine all of the evidence in a neutral light. Bullock, 673 S.W.3d at 764 . In this vein, we consider this brief exchange from appellant's direct examination:
[Defense Counsel]: Were you afraid of [White]?
[Appellant]: Yes, sir.
Q: Were there threats being made on your life?
A: Yes, sir.
Q: Were there threats being made on [Hogg's] life?
A: Yes, sir.
Q: Did you take those threats seriously?
A.: Yes, I did.
The record does not tell us when or by whom these threats were made. The context of the exchange suggests they were made by White.
Viewed in a neutral light, threats on one's life could certainly render "a person of ordinary temper" fearful. See Penal § 19.02(a)(1). However, no one was making threats against appellant's life at the time of the shooting. Instead, the source of his fear at that time was the possibility that Carter was telephoning White. For that act to be an "adequate cause" of the defense, it had to be conduct that would cause that person of ordinary temper to be rendered "incapable of cool reflection." See id. We conclude that a person of ordinary temper who had locked eyes with Carter and then saw her open her phone-even if he were thinking of the earlier threats-would have been perfectly situated to exercise cool reflection. There was no indication Carter was armed, and she was walking away from appellant. In addition, he was inside a car and could have directed the driver to take him away from Carter, thereby completely avoiding any possible conflict. Instead, appellant got out of the car, pulled down the ski mask he had with him, pulled out the gun he had with him, walked up behind the women, and shot five times, wounding Ware and killing Carter.
When we consider all the evidence in a neutral light, we cannot say that the verdict on this issue is so against the great weight and credibility of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Bullock, 673 S.W.3d at 764 . We conclude the evidence is factually sufficient to support the jury's negative finding on sudden passion.
We overrule appellant's first issue.
Comment on Appellant's Silence
In his second issue, appellant argues that the trial court erroneously overruled his attorney's objection to the State's commenting on appellant's exercise of his Fifth Amendment right to remain silent. Specifically, he complains of the following exchange during his testimony on cross-examination:
[The Prosecutor]: And so it's your testimony today that you, in fact, did murder Taisha Carter and shot Daijah Ware; is that correct?
[Appellant]: Right.
Q: You do realize that you could have saved this family over two years, if you would have just owned up to what you have done?
Appellant's counsel objected immediately, referring to appellant's constitutional right to remain silent and not to incriminate himself. The trial court overruled his objection.
Appellant did not answer the question, and the prosecutor did not repeat it.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Id. Because the challenge here involved appellant's Fifth Amendment right, we review the trial court's ruling under the constitutional harm standard. See Tex. R. App. P. 44.2(a) (constitutional error requires reversal "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment").
Cisneros v. State
The State relies in part on Cisneros v. State, 692 S.W.2d 78 (Tex. Crim. App. 1985). That opinion stresses that a defendant who testifies as a witness at his trial may be cross-examined and impeached in the same manner as any other witness. Id. at 83. The general rule applies that "the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination." Id. Indeed, a testifying defendant "may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter and treated in every respect as any other witness except when there are overriding constitutional and statutory provisions." Id. (emphasis added).
The Cisneros court addressed a constitutional issue similar to our own. In that case, a defendant was charged with murdering his girlfriend. He fled the scene after shooting her, but the next day he spoke to his employer and then surrendered to the police. Id. at 80. The employer testified at trial that the defendant confessed to him "that he shot [her], [but] that he was intoxicated and did not realize what he was doing." Id. The defendant took the stand and admitted that he shot and killed his girlfriend; but he testified he acted in self-defense after she brandished a knife and stabbed him. Id. On cross-examination, the prosecutor posed a series of repeated questions concerning the defendant's failure to stay at the scene and speak to police about what happened; defense counsel responded with remarks that lead the trial judge to repeat variations of the ruling, "If you are objecting, I will overrule your objection, counsel." Id. at 81.
The court characterized defense counsel's statements as "mere statements of counsel's understanding of the record. The court was not even sure counsel was objecting." Id.
The specific constitutional issue in Cisneros grew out of this exchange:
[The Prosecutor]: So now when you say, "I was scared and she stabbed me and I thought she was going to kill me," this is the first time that it actually comes up, isn't it?
[Cisneros]: What do you mean?
Q: This is the first time you brought it up, isn't it, here in the courtroom? You didn't bring it out that night to the police, did you? You didn't tell [your employer] about self-defense, did you?
[Defense Counsel]: Your Honor, I object. He had a right to remain silent from the time this took place until today. And this is the first time that he has been in court.
[The Court]: Overruled.
On appeal, Cisneros complained that the prosecutor's cross-examination "improperly referred to his pre-arrest and post-arrest silence and infringed on his federal and state constitutional rights." Id. at 80. The court of criminal appeals confirmed that when a defendant takes the stand, he may be impeached based upon his pre-arrest silence without a violation of the Fifth or Fourteenth Amendments. Id. at 84 (citing Jenkins v. Anderson, 447 U.S. 231 (1980)). However, the court also asserted: "It is, of course, true that after an accused is advised of his rights under Miranda v. Arizona, 384 U.S. 436, and invokes his rights, his silence cannot be used to impeach his testimony at trial." Id. (citing Doyle v. Ohio, 426 U.S. 610 (1976); Cuellar v. State, 613 S.W.2d 494, 495 (Tex. Crim. App. 1981)). The court explained the distinction between the two rules, stating that impeachment was improper "where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." Id. However, a "failure to speak" that occurred before the defendant was taken into custody and given his Miranda warnings, did not implicate any similar government action that would induce a defendant to remain silent before his arrest. Id. In Cisneros-because the questioning involved the defendant's failure to remain at the scene and to tell police or his employer what had occurred, i.e., only his pre-arrest silence-the defendant could be questioned about his failure to speak at that time. Id. at 85. The court added that the record in that case did not reflect whether Cisneros was ever given Miranda warnings after he surrendered to the authorities. Id.
Appellant's case differs from Cisneros's in at least two significant ways. First, the challenged question here pointed out that appellant waited for two years to admit to killing Carter. The record establishes that appellant was arrested on July 14, 2020, approximately six weeks after the shooting. He did not raise the justification of self-defense for approximately twenty-seven months, until he testified at trial on October 14, 2022. Thus the significant majority of appellant's silence-unlike Cisneros's silence-occurred post-arrest.
The time period actually was longer than two years, running from the shooting in May 2020 until trial in October 2022.
Second, the detective who investigated appellant's case testified that, following the arrest, he took appellant to the police station and read him his Miranda rights. The two spoke "briefly," and then appellant invoked his right to counsel. While the record in Cisneros made no reference to the defendant's receiving his Miranda warnings, here the record is clear that appellant received his warnings immediately after his arrest.
We conclude that the prosecutor's question challenging appellant's "two years" of silence pertained to a significant degree to appellant's post-arrest and post-Miranda silence. Accordingly, the question improperly attempted to impeach appellant on silence that was protected by the Fifth Amendment. See Cisneros, 692 S.W.2d at 84. The trial court abused its discretion by overruling counsel's objection to the question.
Constitutional Harm
We ask next whether the trial court's ruling contributed to Scott's conviction or punishment; we must reverse unless we determine beyond a reasonable doubt that it did not. See Tex. R. App. P. 44.2(a). The court of criminal appeals has directed us "to focus, not upon the perceived accuracy of the conviction or punishment, but upon the error itself in the context of the trial as a whole, in order to determine the likelihood that it genuinely corrupted the fact-finding process." Snowden v. State, 353 S.W.3d 815, 819 (Tex. Crim. App. 2011). Within that focus on the trial as a whole, we look to the factors the court identified as helpful in most constitutional harm analyses: the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the course of its deliberations. Id. at 822.
The error here was a comment on appellant's post-arrest silence. The court of criminal appeals has identified the danger traditionally inherent in such a comment: "A comment on a defendant's post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right." Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). But viewed in the context of appellant's trial, we cannot say that the court's error engendered such a danger. Appellant did not fail to testify at trial; he testified at some length concerning the offense with which he was charged. And not only did he testify, he admitted his guilt on direct examination. Thus, when- during cross-examination-the prosecutor commented on appellant's delay in making that admission, the jury was not in a position to draw an unfounded inference concerning his guilt.
We agree with appellant that the prosecutor's use of the word "finally" in closing argument could be seen as a reference to appellant's delay in admitting his guilt. However, the reference was made as a transition from the State's summary of the "overwhelming" evidence of appellant's guilt to his justification of self-defense:
Because the evidence is overwhelming. We have the cell phone showing that he's in the area. We have his DNA. We have surveillance footage. We have admission.
And then he finally got on the stand here today, and his reason for committing this murder is, this young 20-year-old old woman, Taisha Carter with her whole life ahead of her, had her cell phone out, and he had this broad fear about someone she was affiliated with or allegedly affiliated with, and therefore he took it upon himself to pull out a gun, get out of his car, point that weapon at those two women walking down the street, and execute them in broad daylight. That's what this case is about. [Emphasis added.]
In context, it is apparent that the State was not emphasizing appellant's delay; it was emphasizing the evidence of his guilt. We cannot conclude that the prosecutor's earlier question-or this one-word call back to the question-would have had any influence in the jury's deliberation on guilt.
In addition, our review of the record gives us no reason to conclude that the prosecutor's comment could have affected the jury's determination of appellant's punishment. In this Court, appellant paints this issue as one of appellant's credibility, arguing that "if the jury believed [appellant] he would have been . . . sentenced within the range for a second-degree felony." He argues that the improper comment rendered his testimony less believable, suggesting that if he shot Carter under the influence of sudden passion, he would have told the police instead of proceeding to trial. We disagree with appellant's reasoning. We have relied on appellant's own testimony, identified above, to establish that the evidence supported the jury's negative finding on sudden passion. The jury could absolutely have believed appellant when he testified that he was afraid that Carter might call White to come and hurt him. But that testimony was not sufficient under the legal instructions given to these jurors to support the mitigation of his sentence. See Penal § 19.02(d); Bullock, 673 S.W.3d at 763-64. Appellant's credibility was not determinative of mitigation of his punishment.
Appellant makes a passing reference in this regard to the issue of self-defense. But he has not challenged the jury's finding on that issue, and we may not, either directly or indirectly, decide an issue that is not raised.
During the punishment phase of appellant's trial, the jurors heard evidence of appellant's history of violent offenses. Appellant's earlier testimony persuaded them that appellant chose to shoot Carter when he was not at immediate risk of harm from her. Moreover, appellant's testimony contained no indication that appellant felt remorse for causing Carter's death. Jurors could have concluded from the evidence that appellant was likely to commit additional violent acts, believing that he was justified in doing so, if he were not removed from society. The State did not argue that appellant should be punished more harshly because of his delay in admitting his guilt. We conclude the jurors' assessment of his punishment was based on the evidence, not on any reference to that delay.
When appellant was asked whether he intended to shoot Ware, he responded:
No. I'm sorry, Ms. Ware. I'm not -- I don't practice shooting guns. I don't have good aim. I was just shooting out of fear.This apology for his poor aim only emphasized appellant's belief, expressed throughout his testimony, that he was justified in intentionally killing Carter.
When we view the error in this case in the context of the entire trial, we are not persuaded that the prosecutor's comment could have "genuinely corrupted the fact-finding process." See Snowden, 353 S.W.3d at 819. Nothing in the record persuades us that the prosecutor's comment "move[d] the jury from a state of non-persuasion to a state of persuasion on any material issue in the case . . . [or] caused such prejudice as to distract the jury or divert it from its proper fact-finding role." See id. at 825. Instead, we conclude beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a).
We overrule appellant's second issue.
CONCLUSION
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.