Opinion
No. 01-08-00410-CR
Opinion issued May 27, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1164045.
Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
MEMORANDUM OPINION
A jury convicted appellant Quinton Lamont Giles of murder. After finding true the enhancement that alleged a prior conviction for aggravated assault, the jury assessed punishment at imprisonment for 60 years. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003). Giles raises four issues on appeal. First, he contends that the trial court erred by allowing the complainant's father to testify despite his having watched the trial after the parties invoked "the Rule." Second, Giles challenges the factual sufficiency of the evidence to support his conviction. In his final two points, Giles asserts the trial court erroneously admitted into evidence cocaine found in his pocket, complaining of the alleged illegality of the search and relevance. We modify the trial court's judgment and affirm as modified.
After his attorney filed a brief in this case, Giles filed a pro se brief. Because an appellant has no right to hybrid representation, we consider only the issues raised in Giles's counsel's brief and do not address the points raised in Giles's pro se brief. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981); Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977).
Background
Complainant Tommy Lee Harris owned a clothing store called "The Throwback Kings," which sold urban clothing and vintage sports jerseys. Harris employed Brian Alexander (also called "Brownie Boy"), Richard Dean (also called "Pump Head" or "Head"), Darius Celestine (also called "Smurf"), and Giles. Dominique Turner (also called "Ghost" or "Alabama") was an old friend of Harris who sometimes shopped at the store. At trial, Giles testified that The Throwback Kings store was essentially a front for illegal drug sales, that he bought cocaine and crack cocaine from Harris, and that he "cooked crack" and sold illegal drugs for him. But Dean, Celestine, and Turner, all of whom had known Harris for many years, testified that Harris did not sell drugs or that that they were not involved in drug trafficking with Harris. Alexander testified that he did not know if Harris sold illegal drugs. Alexander, Dean, and Giles all testified that Harris was known to carry a loaded .40-caliber gun wherever he went and that Harris had a concealed weapons license. Several fact witnesses had criminal histories. Dean testified that he had prior convictions for burglary, delivery of illegal drugs, family violence, and attempted burglary. At the time of trial, Turner was serving a federal prison sentence for conspiracy and intent to deliver a controlled substance, and Celestine was serving a state-jail sentence for manufacture and delivery of cocaine. Celestine admitted two prior convictions for possession of a controlled substance. Alexander had prior convictions for both possession and delivery of controlled substances. Giles testified that he had a prior felony conviction for which he spent five years in prison. The Throwback Kings was burglarized twice in the weeks before the shooting. Giles testified that one burglary resulted in the loss of illegal drugs and that Harris had implied that Giles was responsible for the losses. On August 21, 2005, Alexander, Dean, and Harris went to a gun show. Dean testified that Harris left his .40-caliber gun in the truck. At the gun show, Harris bought a Kel-Tec 9-mm semiautomatic gun ("Baby Nine") and bullets. Dean loaded the gun at Harris's request. After the gun show, they went to a townhouse where they met Celestine, Turner, and Giles. Dean testified that Celestine let them into the townhouse because the burglar bars were locked and Harris did not have a key. Giles testified that he was at his aunt's house in Fort Bend County on the morning of August 21, 2005. He testified that he went to the townhouse in the mid-afternoon after Harris and Celestine called him numerous times. He knew the townhouse because he went there daily to cook crack cocaine for Harris. Giles testified that Celestine was there when he arrived, and Turner arrived later to buy drugs and hang out. Giles became suspicious when he overheard a telephone conversation between Turner and Harris in which Turner confirmed that Giles had arrived. According to Celestine, that afternoon he and Giles smoked marijuana which had been enhanced with embalming fluid, known as "hydro" or "wet." Giles agreed that he smoked marijuana with Celestine, but he denied that it was "wet" or "hydro." Giles also admitted that he had cocaine in his pocket that afternoon. Celestine said that he sold marijuana to Turner that day and that Turner's presence made Giles agitated and suspicious. Turner testified that he used only codeine syrup that day. Celestine testified that they were listening to music and hanging out. He recounted that Giles became upset and began crying after talking to his girlfriend on the telephone. According to Celestine, Giles's foot was resting on a gun that Harris had previously left at the townhouse. This was not the .40-caliber gun that Harris was known to carry. To prevent the gun from inadvertently firing, Celestine moved it, hiding it under the couch. What happened after Harris, Dean, and Alexander arrived at the townhouse was disputed at trial. Dean, Celestine, Alexander, and Turner all testified that Harris was showing off his new gun and passing it around while the men stood near or in the kitchen. According to each of those four witnesses, Harris asked Giles to return the gun, and in response, without provocation, Giles began to shoot Harris with it. The same witnesses testified that Giles continued firing until no bullets remained in the gun. In addition to hitting Harris, Giles's gunfire also hit Dean and Celestine. Celestine grabbed the gun he had previously hidden under the couch and shot back at Giles. Dean, Celestine, Alexander, and Turner testified that they were trapped inside the townhouse because the front burglar bars were locked and that they eventually found the keys and left through the back, carrying Harris with them. Celestine testified that he hid in a closet and called 9-1-1. When they left, Dean, Celestine, Turner, and Harris got into a maroon Ford Expedition and drove a few hundred feet before meeting the ambulance which had just arrived. The ambulance took Harris to the hospital, and he died approximately two days later. In contrast, Giles testified that Harris had told him that he would have to transport drugs to Alabama to compensate for the burglary losses. According to Giles, when he refused, Harris pulled out his .40-caliber gun and shot him first. He then grabbed the new gun from Turner and returned fire. Giles said that he was shot three or four times and that he called 9-1-1. He took his knife and left the townhouse after the others had left. Houston Police Officer S. Grant responded to the shooting. When he arrived, he saw Giles waving a knife and holding what appeared to be a marijuana cigar in the other. Officer Grant testified that Giles was bleeding and appeared fidgety and intoxicated. Giles told Officer Grant that Harris shot him. Initially, Giles was not combative, but after the ambulance arrived, he became angry, combative, uncooperative, and violent. Officer Grant testified that Giles appeared to be in pain. Officer S. Delacruz also responded to the shooting. When he arrived, he saw Giles waving a knife and Grant holding him at gunpoint. Delacruz handcuffed Giles and conducted a pat-down search. When the ambulance arrived, he uncuffed Giles in order to secure him to the backboard. Before he put Giles on the stretcher, Delacruz did another pat-down search, "a general cursory search to make sure no other gun or no other knife was found." After Giles was secured to the stretcher with handcuffs and tape, Delacruz searched Giles's pockets, where he found a plastic bag containing a substance that field-tested positive for cocaine. Delacruz rode to the hospital in the ambulance because Giles "was very combative, and the paramedics were scared, were in fear of their life." Houston Police Officer D. Shorten investigated the shooting. After Giles's mother called her, Shorten spoke with Giles by telephone. According to Shorten, he told her that he had been to prison for five years, that he worked for Harris, and that he had smoked marijuana the day of the shooting. Giles also told her that Harris had been dealing drugs from his store, but Giles tried to minimize his role in that. Shorten testified that Giles told her Harris was showing off his new gun and someone passed it to Giles. She testified that Giles confessed to shooting Harris. She later testified, based on her notes, that Giles told her Harris had reached for his gun and that Giles shot Harris and the others before they could shoot him. Retired Houston Police Officer J. Kay testified about the crime scene investigation. Kay testified that 15 spent shell casings were recovered at the scene along with a Kel-Tec 9-mm semiautomatic gun. He said that the Kel-Tec gun could hold only ten bullets. The officers also found a Smith and Wesson 9-mm semiautomatic gun in the rear of the Expedition. Forensics testing showed that five of the recovered spent shell casings came from the Smith and Wesson .9-mm semiautomatic gun found in the Expedition, and the remaining spent shell casings came from the Kel-Tec .9-mm semiautomatic gun found at the townhouse. Tommy Lee Harris, Sr., the complainant's father, sat through the entire trial. After Giles testified that Harris used his .40-caliber gun to shoot Giles first, the State proffered Harris, Sr. as a rebuttal witness. The trial court held a hearing outside the presence of the jury during which the prosecutor argued that he first learned of Harris's habit of carrying a gun during the previous day's testimony. The prosecutor also argued that he first learned that Harris, Sr. had relevant information during that day's lunch break. The trial court permitted Harris, Sr. to testify. Harris, Sr. testified that he picked up Harris's car on the night of the shooting and found Harris's .40-caliber gun inside. The jury rejected Giles's self-defense argument, found him guilty of murder, and sentenced him to 60 years' confinement."The Rule" of Sequestration of Witnesses
In his first issue, Giles argues that the trial court erred by permitting Tommy Lee Harris, Sr., the complainant's father, to testify as a prosecution rebuttal witness when Harris, Sr. had observed the trial and heard all the prior testimony. Texas Rule of Evidence 614 ("the Rule") provides for the exclusion of witnesses from the courtroom during trial. TEX. R. EVID. 614 ("At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. . . ."). "The purpose of placing witnesses under the rule is to prevent the testimony of one witness from influencing the testimony of another, consciously or not." Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005); Mitchell v. State, 238 S.W.3d 405, 412 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). We review the trial court's decision to permit the testimony of a witness who has violated "the Rule" for abuse of discretion. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). In reviewing the trial court's decision to allow the testimony, we determine whether the defendant was harmed or prejudiced by the violation by considering two criteria: (1) whether the witness actually conferred with or heard testimony of other witnesses and (2) whether the witness's testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard. Id.; Martinez v. State, 186 S.W.3d 59, 65 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd).Violations of "the rule" fall into two main categories: witnesses who have been sworn or listed as witnesses in the case and either hear testimony or discuss another's testimony; and persons . . . who were not intended to be witnesses and are not connected with the case in chief but who have, due to events during trial, become necessary witnesses.Green v. State, 682 S.W.2d 271, 294 (Tex. Crim. App. 1984). If the witness was one who had no connection with either the State's case-in-chief or the defendant's case-in-chief and who, because of a lack of personal knowledge regarding the offense, was not likely to be called as a witness, no abuse of discretion can be shown. Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App. 1988). Thus, in reviewing a trial court's decision to "allow an otherwise disqualified witness to testify . . . [we] will determine whether the witness was (1) connected to the State or defense case-in-chief, and (2) whether the witness had any personal knowledge regarding the offense." Webb v. State, 766 S.W.2d 236, 240 n. 2 (Tex. Crim. App. 1989). Here, Harris, Sr. listened to the testimony of other witnesses, including those who testified that Harris ordinarily carried a .40-caliber gun and Giles's testimony that Harris shot him first. In addition, Harris, Sr.'s testimony was consistent with the testimony that Harris left his gun in the truck on the day of the shooting. However, Harris, Sr. was not connected with the State's case-in-chief, and he had no personal knowledge regarding the shooting. Harris, Sr. was not a witness to the shooting. He was not able to testify as to how or when the .40-caliber gun got into Harris's truck. The prosecutor stated that Harris, Sr.'s testimony became necessary during the trial, when the prosecutor learned for the first time that Harris customarily carried a .40-caliber gun. Accordingly, because Harris, Sr. was not connected to the State's case-in-chief, had no personal knowledge of the shooting, and was not an intended witness, we hold that the trial court did not abuse its discretion by allowing Harris, Sr.'s testimony. We overrule Giles's first issue.
Factual Sufficiency
In his second issue, Giles contends that the evidence was factually insufficient to support the jury's rejection of his self-defense claim. In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (applying factual sufficiency standard of review to case when appellant challenged factual sufficiency of jury's rejection of his self-defense claim). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court which relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707. As alleged in the indictment, the State charged Giles with the murder of Harris by shooting him with a deadly weapon, namely, a firearm. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003). Four eyewitnesses testified that they saw Giles shoot Harris at point-blank range without provocation. These same witnesses testified that Giles used Harris's 9-mm Kel-Tec gun and fired until he had emptied it of bullets. Retired police officer Kay testified that the Kel-Tec gun held ten bullets and that they found an empty 9-mm Kel-Tec gun and ten spent shell casings matching the gun at the shooting scene. Officer Shorten testified that Giles told her he shot Harris before Harris or the others could shoot him. Dean testified that Harris left his .40-caliber gun in the truck; Alexander testified that Harris did not remove or fire his .40-caliber gun on the day of the shooting. Giles argues that the jury improperly rejected his self-defense claim. Giles contends that the evidence established that Harris was a drug dealer. Specifically, Giles points to evidence that Harris's long-time friends all had drug convictions, that he paid his employees in cash, that he owned several cars, and that he customarily carried a gun. Giles also contends that he was asked by Harris to meet him at the townhouse, and that Harris locked the burglar bars and passed around a loaded 9-mm gun, all of which reasonably placed Giles in fear for his life. He also relies on his own statements to police when they arrived at the shooting scene, stating that "Tommy Lee Harris shot me." Giles correctly notes that some circumstantial evidence was not disputed: Harris's friends admitted to prior drug convictions, Harris ordinarily paid his employees in cash, Harris owned several cars, and Harris usually carried a gun. However, either alone or taken as whole, these facts do not establish that Giles acted in self-defense. The four eyewitnesses did not corroborate Giles's accusations that Harris was a drug dealer. Rather, they testified that Harris did not deal or sell illegal drugs. In addition, Dean testified that Harris did not have a key to the burglar bars. Giles's claim of self-defense relies almost entirely on his own testimony and prior statements. Thus, the jury's decision was necessarily based on its evaluation of the credibility of the witnesses. As such we must afford its determination due deference. Lancon, 253 S.W.3d at 705. This is not a situation in which the testimony of a "Cretan Liar" was opposed by that of twelve Boy Scouts. See Goodman v. State, 66 S.W.3d 283, 285-87 (Tex. Crim. App. 2001). All of the eyewitnesses to the shooting, including Giles, had prior felony and/or illegal drug convictions. Having viewed the evidence in a neutral light, we conclude that the evidence is neither so weak that the verdict is clearly wrong and manifestly unjust nor against the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d at 11; Zuliani, 97 S.W.3d at 595. We hold that the evidence was factually sufficient, and we overrule Giles's second issue.Admission of Cocaine — Motion to Suppress
In his third issue, Giles challenges the trial court's admission of the cocaine found in his pocket as a violation of his constitutional right against unreasonable searches and seizures. Although Giles has framed the issue as one involving his rights under both the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution, we need not address the state constitutional claims because Giles has proffered no argument or authority concerning the protection provided by the Texas Constitution or how that protection differs from the protection provided by the United States Constitution. Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex. Crim. App. 1991); Montalvo v. State, No. 01-09-01134-CR, 2010 WL 1729414, at *3 n. 3 (Tex. App.-Houston [1st Dist.] Apr. 29, 2010, no pet. h.). The trial court held a pretrial hearing on Giles's motion to suppress certain statements and evidence, including the cocaine found in his pocket. Officer Delacruz testified that he handcuffed Giles and conducted a pat-down search when he arrived at the shooting scene because Giles was waving a knife and behaving incoherently and erratically. Delacruz testified that Giles initially refused to drop his weapon and was threatening the police officers. He further testified that he conducted a second pat-down search when the ambulance arrived:Q. At some point was Mr. Giles loaded onto a stretcher on an ambulance?
A. That's correct.
Q. And what, if you remember, was his demeanor at that time?
A. He was extremely combative, would not basically obey any verbal commands we gave him. He's trying to bite us, kicking us. I mean, he was — the behavior that he displayed that day was not normal behavior. I mean, it appeared he was intoxicated or possibly on some kind of drugs.
Q. And when he was put on the stretcher, did they have to — was he restrained?
A. Yeah, yes. Me and Officer Grant had to restrain him on the stretcher with paramedics, as well. And he talked about how he sold drugs, something about how he was going to kill me, even kill other people when he got out of jail. He just — it was a bunch of stuff he stated at the scene.
Q. Would you say that some of it was probably just, it was just incoherent rambling?
A. No. I mean, there was time when he would display, you know, very violent and aggressive behavior, and then he would go back into just bragging about his previous criminal life.
Q. Okay. And did you feel to yourself that he was still a threat?
A. At that point, yes, sir, I did.
Q. And what did you do while he was being loaded onto the ambulance?
A. I went in and checked him again a second time to make sure because he said, you know, he was going to kill me and kill the paramedics on the way to hospital. So I went ahead and patted him down. I felt some bulkiness in his pockets, so I took it out and it was a clear plastic bag with cocaine.Giles objected on grounds of violation of state and federal constitutional protections against unreasonable searches. In denying Giles's motion to suppress the cocaine, the trial court stated:
The motion to suppress the cocaine is . . . denied as to that that was found in the pocket. I remember the officer's testimony differently, that the officer said something about there being a bulge in the pocket and he went to check and see what that was and found the cocaine.
But just because it's a search, discovery is not illegal. I'm not telling you that it's admissible at this point. I just don't think at whatever time it's attempted to be admitted will pretty much cover — deal with the extraneous issue and the relevance issue.
Standard of Review
In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determinations on all fact questions and on application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). On all other application-of-law-to-fact questions, we apply a de novo standard of review. Id. at 652-53. We view the record and all reasonable inferences from the record in the light most favorable to the trial court's ruling and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).Investigative Detention
A law-enforcement officer may stop and briefly detain a person suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10 S.W.3d at 328. In order to stop or briefly detain an individual, an officer must be able to articulate something more than an "inchoate and unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Instead, an officer must have "reasonable suspicion" that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when the officer has some minimal level of objective justification for making the stop, i.e., when the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 88 S. Ct. at 1880; see also Alabama v. White, 496 U.S. 325, 329-30, 110 S. Ct. 2412, 2416 (1990). We disregard the subjective belief of the officer in our reasonable suspicion analysis and consider the totality of the circumstances objectively. Ford, 158 S.W.3d at 492-93.A valid investigative detention can confer upon an officer the authority to pat down the suspect for weapons. Under the "plain feel" doctrine, an officer conducting a pat-down may seize an object "whose contour or mass makes its identity immediately apparent" as contraband. But when the conditions of the "plain feel" doctrine (or the "plain view" doctrine) are not present, an officer conducting a valid investigative detention must have probable cause in order to conduct a search for non-weapon contraband or other evidence. . . . Consequently, the officer's conduct of reaching into appellant's pocket — even under a valid investigative detention — was an illegal search unless there existed some exception to the usual probable cause requirement.Baldwin v. State, 278 S.W.3d 367, 371-72 (Tex. Crim. App. 2009) (citations omitted). When Officers Grant and Delacruz arrived at the townhouse, Giles was standing outside, waving a knife, behaving erratically, holding a marijuana cigar, and threatening the police officers. The officers were responding to a shooting call and did not at that time know who would be a suspect and who a complainant. However, based on Giles's behavior, the officers had reasonable suspicion sufficient to justify an investigative detention and a pat-down search for their own protection. But Giles complains on appeal about the second search, during which Delacruz reached into Giles's pocket and pulled out a bag containing cocaine. At the suppression hearing, Delacruz testified only that he felt "some bulkiness," not that it was immediately apparent that the bulkiness he felt was contraband. See Baldwin, 278 S.W.3d at 371-72. The prosecutor asked no follow-up questions to elicit testimony as to what Delacruz believed the "bulkiness" to be based on his experience. Thus, Delacruz's removal of the bag of cocaine would not be justified under the plain-feel doctrine, given the testimony in this case. Compare Minnesota v. Dickerson, 508 U.S. 366, 377-78, 113 S. Ct. 2130, 2138 (1993) (holding search of defendant's pocket constitutionally invalid when officer's testimony "belie[d] any notion that he `immediately' recognized the lump as crack cocaine"), with Carmouche, 10 S.W.3d at 330-31 (holding search of appellant's pocket constitutionally permissible when officer testified he immediately recognized lump in pocket as money), and Strickland v. State, 923 S.W.2d 617, 621-22 (Tex. App.-Houston [1st Dist.] 1995, no pet.) (holding search of appellant's pocket constitutionally permissible when officer testified he recognized object in defendant's pocket to be crack pipe before removing it). However, the State justifies this second search as a search incident to arrest, not as an investigative detention. The State argues that Giles committed several offenses while Grant and Delacruz looked on, including assault, terroristic threat, and possession of marijuana. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.07(a)(2) (Vernon Supp. 2008); TEX. HEALTH SAFETY CODE ANN. § 481.121(a) (Vernon Supp. 2009). The State contends that because the officers had probable cause to arrest Giles, they were entitled to conduct a search.