Opinion
09-23-00289-CR
10-02-2024
SCOTT ALLEN WILLIS JR., Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on May 29, 2024
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. F13-16993
Before Golemon, C.J., Johnson and Wright, JJ.
MEMORANDUM OPINION
JAY WRIGHT Justice
A jury convicted appellant Scott Allen Willis Jr. of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2). In four issues, Willis complains about the admission of evidence and the denial of his motion for mistrial. For the reasons explained below, we affirm the trial court's judgment.
The Court of Criminal Appeals granted Willis permission to file an out-of-time appeal. Ex parte Willis, No. WR-79,869-02, 2023 WL 4096957, at *1 (Tex. Crim. App. June 21, 2023) (not designated for publication).
BACKGROUND
A grand jury indicted Willis for aggravated robbery, alleging that Willis:
did then and there while in the course of committing theft of property owned by [Cynthia] . . . and with intent to obtain and maintain control of said property, intentionally and knowingly threaten and place [Cynthia] in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, to-wit: a firearm.The indictment included an enhancement paragraph alleging that Willis had a prior conviction for robbery, a second-degree felony.
We use pseudonyms to refer to the complainant, civilian witnesses, and other alleged victims to conceal their identities. See Tex. Const, art. I, § 30(a)(1) (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
The trial court conducted a jury trial. Cynthia testified that she was with her son when Willis robbed her with what she believed was a gun while she was unloading her car in her driveway. Cynthia explained that she struggled with Willis when he tried to take her purse and belongings, and after her son jumped on Willis's neck, Willis fled the scene, leaving his baseball cap, cigarettes, and cell phone behind. Cynthia explained that an off-duty sheriffs jailer stopped to help her. Cynthia testified that she identified Willis in a photo lineup with 75% certainty, and after seeing Willis at trial, she was 100% certain that Willis robbed her.
The jailer testified that he was driving home when he saw a vehicle parked in the roadway and a white female and black male in a driveway tussling with a bag. He explained that he called 911, and when he stopped to help, the black male fled. The jailer explained that he gave the police a general description of the suspect, but he could not identify Willis in a photo lineup or at trial.
Sergeant Howard Trahan with the Beaumont Police Department testified he responded to the aggravated robbery at Cynthia's house. Trahan explained that the suspect left a white ball cap, cell phone, and a pack of cigarettes at the scene. Trahan testified that he figured the suspect dropped his property during the struggle.
Carol Hargroder, an ID technician with the Beaumont Police Department, testified she photographed and collected the white ball cap, cell phone, and pack of cigarettes from the scene. Hargroder explained that she photographed the cell phone's serial number, which is also called the MELD number, for identification purposes so the phone could be traced.
Detective Aaron Lewallen with the Beaumont Police Department testified about the cell phone that the suspect left behind at the scene. Lewallen testified that he retrieved the abandoned cell phone from the ID Department, and because he did not believe the suspect intentionally left it at the scene, he obtained a search warrant for the cell phone based on its MELD serial number. Lewallen explained that since the cell phone did not have a password, he was able to look through the contacts in the cell phone and identify relatives and their phone numbers. Lewallen explained that prior to obtaining the search warrant, he dialed his office number to obtain the phone number of the abandoned cell phone. Lewallen then used the Record Management System and other databases to search the cell phone's contact number for "Mama[,]" and he determined the cell phone number belonged to Willis's mother. Lewallen determined that the owner of the phone number for "Grandma[]" was Willis's grandma. Lewallen testified that he also found a contact for "Bae," which contained a contact picture of Willis and a female, and he pulled other photographs of Willis from the cell phone. Lewallen was able to determine that the cell phone found at the scene belonged to Willis. Lewallen explained that he used the photographs and contacts from the cell phone to place Willis into a photo lineup, which led to Cynthia identifying Willis and him charging Willis with aggravated robbery.
Detective John Courts with the Beaumont Police Department testified that two days after the robbery, he showed Cynthia a photo lineup. Courts explained that Cynthia identified Willis with a 75% degree of confidence during the lineup.
The jury found Willis guilty of aggravated robbery. The trial court then conducted the punishment phase of the trial during which Willis pleaded "[t]rue" to a previous robbery conviction alleged in the enhancement paragraph of the indictment. The jury heard testimony from Marcus, an extraneous offense witness who explained that Willis shot him during a drive-by shooting. Marcus's mother testified about Marcus's hospitalization and rehabilitation and how the shooting had impacted him. She explained that Marcus was mentally and emotionally affected and "not right anymore." Marcus's mother testified that after the shooting, Willis drove by her house twice trying to intimidate her and Marcus, and she explained Willis also made a threatening statement when she was at the store.
Again, we use pseudonyms to refer to the complainant, civilian witnesses, and other alleged victims to conceal their identities. See id.
Detective Jesus Tamayo with the Beaumont Police Department testified that he and other officers investigated Marcus's shooting, and after Marcus identified Willis as the possible shooter, they located the white SUV Marcus reported seeing during the shooting at Willis's mother's home, where Willis was hiding in a closet with a 9-millimeter weapon. Detective Tamayo testified that they found a 9-millimeter shell casing in the white SUV. Detective Tamayo explained that Marcus reported seeing three people in the vehicle and that Willis was one of them. Detective Tamayo explained that Willis admitted he was there and after they arrested Willis, Marcus identified Willis as the shooter.
The jury also heard testimony from Claire, who testified that Willis robbed her after she pulled into her garage. Claire testified that Willis assaulted her and stole her wallet and medication. Claire explained she identified Willis from a photo lineup. Sergeant Patrick Barton with the Beaumont Police Department testified that several days after the robbery he showed Claire the photo lineup, and Claire identified Willis with 99.9% certainty.
As we explained earlier, we also use a pseudonym for this victim. See id.
The jury found that Willis had a previous conviction for a non-state jail felony offense as alleged in the indictment and assessed Willis's punishment at confinement for a term of seventy years and assessed a $10,000 fine.
ANALYSIS
In four issues, Willis complains about the admission of evidence and the denial of his motion for mistrial. We review a trial court's decision to admit evidence under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). Under that standard, the trial court's ruling on evidentiary matters should be upheld as long as it is within the zone of reasonable disagreement. Id.; Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). "[T]he Court of Appeals cannot simply substitute its own decision for the trial court's." Moses, 105 S.W.3d at 627.
We review the trial court's refusal to grant a mistrial for abuse of discretion. Weadv. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Adams v. State, 156 S.W.3d 152, 157 (Tex. App.-Beaumont 2005, no pet.). We must uphold a trial court's ruling on a motion for mistrial if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). A defendant complaining of error in the admission of evidence should first object, then request an instruction to disregard, and move for a mistrial if he believes the instruction to disregard was insufficient to cure the error. Young v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). An instruction to disregard generally cures any prejudice. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). And we assume the jury followed the trial court's instruction. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).
Mistrial is appropriate in extreme circumstances "for a narrow class of highly prejudicial and incurable errors[,]" because it "is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Laddv. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In determining whether allegedly prejudicial testimony warrants a mistrial, we consider (1) the severity of the misconduct and the magnitude of the prejudicial effect, (2) the curative measures taken, and (3) the certainty of conviction absent the misconduct. Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).
Cell Phone Evidence
In issue one, Willis complains he was harmed by the trial court's error of admitting illegally obtained evidence retrieved from his abandoned cell phone before a search warrant was issued when there was no proof of any exigent circumstances warranting the illegal seizure. Willis argues that the initial search of his cell phone without a warrant violated the Fourth Amendment of the United States Constitution, and the evidence obtained from the illegal search led to his identification, a primary issue in the case. Willis complains the trial court erred by determining he abandoned his cell phone, which he claims he inadvertently lost, and admitting the unlawfully obtained items from the illegal search.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend IV. To assert this protection, Willis must have a legitimate expectation of privacy in the cell phone; otherwise, he lacks standing to challenge the search. See King v. State, 670 S.W.3d 653, 656 (Tex. Crim. App. 2023) (linking standing to a legitimate expectation of privacy). We review the legal question of standing de novo and defer to the trial court's factual findings and view them in a light most favorable to the prevailing party. Id. A party lacks standing to object to the search of abandoned property. Wiltz v. State, 595 S.W.3d 930, 933-36 (Tex. App.-Houston [14th Dist] 2020, pet. ref d) (concluding defendant abandoned cell phone he left in vehicle before fleeing the scene and thus intentionally gave up any privacy rights to information on the cell phone, which was not password protected); Edwards v. State, 497 S.W.3d 147, 160-61 (Tex. App.-Houston [1st Dist.] 2016, pet. ref d) (concluding defendant failed to show he had a reasonable expectation of privacy in the cell phone he left on top of a car before fleeing from police); see also State v. Granville, 423 S.W.3d 399,409 (Tex. Crim. App. 2014) ("Although a person may have a reasonable and legitimate expectation of privacy in the contents of his cell phone, he may lose that expectation ... if he abandons his cell phone[.]"). A defendant abandons property when he has an intent to do so, and his decision is not due to police misconduct. Edwards, 497 S.W.3d at 160 (citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)). When police take possession of abandoned property without any police misconduct, there is no seizure under the Fourth Amendment. McDuff, 939 S.W.2d at 616.
Abandonment is primarily a question of intent that can be inferred from the defendant's words and actions and other circumstances surrounding the abandonment. Edwards, 497 S.W.3d at 160 (citation omitted). The dispositive issue is whether the defendant voluntarily discarded or left behind the property so that he could no longer retain a reasonable expectation of privacy regarding the property when the search was conducted. Id. at 160-61. Since there is no evidence that police misconduct led to Willis's alleged abandonment of his cell phone, we focus our analysis on whether he intended to abandon his cell phone. See Id. at 161.
In both Edwards and Wiltz, the defendants left their cell phone behind when fleeing a crime scene, and both defendants lacked standing to complain about the reasonableness of the search of the contents of their cell phones because they had abandoned their cell phones. See Edwards, 497 S.W.3d at 160-65; Wiltz, 595 S.W.3d at 934-36. When a defendant has abandoned a cell phone, the police have a limited right to examine the phone to determine its owner because the defendant no longer has a reasonable expectation of privacy that would prevent someone from attempting to identify the phone's owner. See Martinez v. State, 689 S.W.3d 30, 41-43 (Tex. App.-Fort Worth 2024, pet. ref d) (discussing police officer's right to examine abandoned phone in a limited manner to determine the owner); Oseguera-Viera v. State, 592 S.W.3d 960, 962, 964-66 (Tex. App.-Houston [1st Dist] 2019, pet. ref d) (concluding record supports court's implied finding that the defendant did not have standing to challenge off-duty officer's review of his cell phone when officer accessed photos and contacts to determine the owner of the phone, which was not password protected).
Here, the trial court noted that police are allowed to investigate a cell phone that was left behind by the defendant or someone else at the scene of a crime. The trial court found the cell phone was abandoned and the police did not need a warrant but "they got a warrant anyway and the probable cause to search was satisfied under their application." Although Willis's counsel further complained that Willis had a reasonable expectation of privacy in the contents of the phone-not just the physical phone itself, the testimony indicates that the phone was not password protected and the investigating officer was able to access the phone freely as would any passerby who found it on the ground.
We cannot say the trial court erred in admitting the evidence relating to the cell phone. Willis failed to show he had a reasonable expectation of privacy in his cell phone that was left at the crime scene. Therefore, Willis lacked standing to complain about the reasonableness of the search of the cell phone's contents. See Edwards, 497 S.W.3d at 160-65; Wiltz, 595 S.W.3d at 933-36. The trial court did not err by finding the cell phone was abandoned and impliedly finding that Willis lacked standing to challenge the search of his cell phone. We overrule issue one.
Speculative Testimony
In issue two, Willis argues the trial court erred by denying his motion for mistrial based on Cynthia's speculative testimony that Willis acted intentionally. The record shows that when the State asked Cynthia if she thought what Willis was doing was intentional, Cynthia stated, "Yes, ma'am." The trial court sustained Willis's speculation objection, and instructed the jury to disregard Cynthia's previous statement, and denied Willis's request for a mistrial. The State argues Willis failed to preserve this issue for our review because the same testimony was previously admitted without objection. We agree.
The record shows that Cynthia previously stated, "Yes, ma'am[]" when the State asked, "Did you feel his actions were intentional that he knew what he was doing and he was trying to rob you of your property?" Willis did not object to this question. To preserve error, the party must make a timely and specific objection and obtain a ruling from the trial court each time allegedly inadmissible evidence is offered. See Tex. R. App. P. 33.1(a); Purtell v. State, 761 S.W.2d 360, 368 (Tex. Crim. App. 1988); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Deshotel v. State, No. 09-22-00170-CR, 2023 WL 2154891, at *2 (Tex. App.- Beaumont Feb. 22, 2023, no pet.) (mem. op., not designated for publication). Since Willis did not object each time Cynthia testified about her belief that Willis acted intentionally, the same evidence was admitted before the jury without objection. See Hudson, 675 S.W.2d at 511 (concluding error is cured when unobjected to evidence is admitted without objection and nothing was preserved for review). In any event, we presume the jury followed the instruction of the trial court, when given, to disregard the answer. Therefore, we conclude Willis did not preserve this issue for our review. See id. We overrule issue two.
Speculative Testimony Concerning Extraneous Offense
In issue three, Willis complains the trial court erred during punishment by admitting speculative testimony from Marcus, the alleged victim of an extraneous offense who speculated about Willis's intent when he shot Marcus. During Marcus's testimony, the following exchange occurred:
[The State]: [Marcus], after the defendant, Scott Willis, shot you, did you think it was an accident; or was it on purpose?
[Defense Counsel]: Objection, speculation.
[The Court]: It was couched in what he thought, and he's allowed to render his opinion of his own perception and relate to this jury his perception. Overruled in the way the question was asked. Go ahead. You may answer, sir.
[Marcus]: Could you repeat your question?
[The State]: Was it on purpose? This wasn't an accident, was it?
[Marcus]: It didn't look like no accident.
[The State]: Was it a drive-by shooting?
[Marcus]: Yes, ma'am.
The Texas Rules of Evidence provide that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Tex. R. Evid. 602. A lay witness can offer opinion testimony that is rationally based on the witness's perception and helpful to clearly understand the witness's testimony or to determine a fact in issue. Tex. R. Evid. 701; Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). A trial court should exclude a proffered lay-witness's opinion about what someone else is thinking because such an opinion could never be based on personal knowledge. Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997). That said, "[a]n opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness's objective perception of events (i.e. his own senses or experience)." Id. (citation omitted). Thus, a witness may possess personal knowledge of facts from which an opinion of mental state can be drawn, and the jury may weigh that opinion even if it concerns culpable mental state. Id. (citation omitted). Once the perception requirement is met, the trial court must determine whether the opinion is rationally based on that perception, meaning it is an opinion that a reasonable person could draw under the circumstances. Id. at 900. The trial court must exclude an opinion not capable of being reasonably formed by the events. Id.
The trial court could have reasonably concluded that Marcus had personal knowledge of sufficient facts about the circumstances of the shooting. Marcus testified that when Willis shot him during a drive-by shooting, he saw a "white SUV." Marcus explained that while he did not actually see Willis shoot him, he knew it was Willis based on what witnesses told him and the voices he heard. Marcus's opinion that the shooting did not look accidental was rationally based on Marcus's perception of the drive-by shooting. The jury was free to give as much or as little weight to Marcus's opinion that Willis did not accidentally shoot him. See Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001). We conclude the trial court did not abuse its discretion by determining that Marcus's opinion about the shooting was rationally based on his objective perception of the shooting and one that a reasonable person could draw under the circumstances. See Fairow, 943 S.W.2d at 899-900.
Although Willis argues that a witness is not permitted to render an opinion on an ultimate fact which should be determined by the factfinder, the record shows Willis did not object on that basis at trial. See Tex. R. App. P. 33.1; see also Tex. R. Evid. 704. Willis only lodged an objection that the testimony was based on "speculation" which was directed at the lack of personal knowledge under Rule 602. See Tex. R. Evid. 602 (stating witness may not testify unless sufficient evidence to support finding of personal knowledge of matter). We conclude that Willis failed to preserve this argument for our review. See Wilson v. State, 71 S.W.3d 346,349 (Tex. Crim. App. 2002).
For all of the reasons outlined above, we overrule issue three.
Victim Impact Evidence from Extraneous Offense
In issue four, Willis complains the trial court erred during punishment by admitting improper victim impact evidence from Marcus's mother about how the extraneous offense had affected Marcus. Willis argues that the victim impact evidence was unfairly prejudicial and should have been limited to the victim named in the indictment.
The record shows that when the State asked Marcus's mother about how the shooting affected Marcus, Willis objected that any testimony about how the shooting affected her was outside the scope of a victim impact. The trial court overruled Willis's objection. The record also shows that Willis failed to object when the State asked Marcus's mother to talk about the emotional affect the shooting had on her family. Marcus's mother then testified without objection about how the shooting had mentally and emotionally affected Marcus, and she did not testify about its effect on her personally.
To preserve error, the party must make a timely and specific objection and obtain a ruling from the trial court each time allegedly inadmissible evidence is offered. See Tex. R. App. P. 33.1(a); Purtell, 761 S.W.2d at 368; Hudson, 675 S.W.2d at 5\\;Deshotel, 2023 WL 2154891, at *2. Since Willis did not object each time Marcus's mother testified about how the shooting affected her family or Marcus, the same evidence was admitted before the jury without objection. See Hudson, 675 S.W.2d at 511 (concluding error is cured when unobjected to evidence is admitted without objection and nothing was preserved for review). Therefore, we conclude Willis did not preserve this issue for our review. See id. We overrule issue four. Having overruled each of Willis's issues, we affirm the trial court's judgment. AFFIRMED.