Smith v. State

Full title: ROY LEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Feb 9, 2005

No. 04-03-00771-CR (Tex. App. Feb. 9, 2005)

Opinion

No. 04-03-00771-CR

Delivered and Filed: February 9, 2005. DO NOT PUBLISH.

Appeal from the 185th Judicial District Court, Harris County, Texas, Trial Court No. 922463, Honorable Susan Brown, Judge Presiding. Affirmed.

Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

KAREN ANGELINI, Justice.

Roy Lee Smith appeals his conviction of murder. Smith raises six issues for review. We overrule all six issues and affirm the judgment of the trial court.

BACKGROUND

On August 27, 2002, Houston police were called to a cutting at 5414 Wiley. As police officers arrived at the residence, they observed a man, whom they identified as Roy Lee Smith, emerging from the back door with his hands raised. Officer Rogers, who was the first on the scene, testified that Smith's hands were covered with dried blood and that he heard Smith say, "I think I killed her." When asked where the victim was, Smith led the officers to a storage shed behind the garage. It was very dark and Officer Rogers testified that when they shined their flashlights, they could see a woman who appeared to be dead lying in the shed. Dr. Karen Kelly, an assistant medical examiner with the Harris County Medical Examiner's Office, identified three stab wounds on the victim's body — one on the left side of her neck, one behind her right ear, and one on the pinkie finger of her left hand. Dr. Kelly testified that the cause of the victim's death in this case was the stab wound to the neck, which incised her jugular vein and carotid artery in two different places. The victim's toxicology tests showed that she had a blood alcohol level of .09 and had marijuana in her system. Smith was charged by indictment on October 11, 2002, with the felony offense of murder. The indictment alleged that a deadly weapon, namely a knife, was used in the commission of the offense. Smith entered a plea of not guilty. On September 11, 2003, Smith was found guilty of murder, as charged in the indictment. On September 12, 2003, punishment was assessed at forty (40) years confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. Smith appeals from the judgment of the trial court.

STATE'S COMMENT ON APPELLANT'S RIGHT TO REMAIN SILENT

In his first issue, Smith contends that the trial court erred by not declaring a mistrial after the prosecutor allegedly referred to his post-arrest silence in closing argument at the guilt-innocence phase of the trial. We disagree. A comment on a defendant's post-arrest silence violates the rights of the accused under the Fifth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; Doyle v. Ohio, 426 U.S. 610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App. 1995). However, a comment on the defendant's post-arrest silence, by itself, seldom warrants a mistrial. See Dinkins, 894 S.W.2d at 356. In most cases, any potential prejudice caused by such a comment is presumed to be cured by an instruction to disregard, unless the comment was so egregious that it suggests the impossibility of withdrawing the impression produced on the minds of the jury.¹ Id. The following portion of the closing argument contains the comments about which Smith complains:

PROSECUTOR: You heard Detective Scales tell you, I inspected him at the scene, CSU, Officer Aguilera, there was no injuries on this man. He didn't complain of any. They didn't see any.

DEFENSE: Objection, commenting on post-arrest silence.

THE COURT: Sustained.

DEFENSE: Ask the jury be instructed to disregard.

THE COURT: Disregard it.

DEFENSE: Request a mistrial.

THE COURT: Denied.

Here, the trial court promptly instructed the jury to disregard the comment, and the State did not refer again to Smith's post-arrest silence. Therefore, any error caused by the State's comment on Smith's silence was cured by the instruction to disregard. Dinkins, 894 S.W.2d at 356. Accordingly, we overrule this issue on appeal.

STATE'S COMMENT ON APPELLANT'S FAILURE TO TESTIFY

Smith's second and third issues are directed at two statements made by the prosecutor during closing argument at the trial's punishment phase. Smith contends that both arguments constituted comments upon his failure to testify at the trial's punishment phase and, therefore, require a reversal of his conviction. We disagree. A prosecutor's comment on a defendant's failure to testify offends both the state and federal constitutions, as well as Texas statutory law.² See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CRIM. PROC. CODE ANN. art. 38.08 (Vernon 1979); Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). To constitute error, however, the argument, when viewed from the jury's perspective, must manifestly be of such a character that the jury would clearly take it as a comment on the accused's failure to testify. Bustamante, 48 S.W.3d at 765. A mere indirect or implied allusion to the defendant's failure to testify does not violate the accused's rights. Id. The defendant has a Fifth Amendment privilege at both the guilt-innocence and the punishment phases of the trial. Wilkens v. State, 847 S.W.2d 547, 553 (Tex.Crim.App. 1992). Here, Smith testified at guilt/innocence, but did not testify at the punishment phase of the trial. During closing argument, the prosecutor made the following remarks:

PROSECUTOR: Texas allows juries to decide what the punishment should be after all of the evidence. And each and every one of you said that you could keep an open mind as to punishment at the onset of the case after hearing the testimony. But after you heard the testimony, after you heard from the witnesses, after you heard from the defendant himself, you can then decide probation's out of the question. You can then decide this case —

DEFENSE: Excuse me, Your Honor. I'm going to object to the last statement of Mr. Ortiz. It's a comment on the silence of the defendant in the punishment hearing.

PROSECUTOR: Nothing to do with —

THE COURT: Overruled.

Shortly after this dialogue, the prosecutor argued:

PROSECUTOR: You heard the testimony of the case. You heard the way he did it. And even in his testimony, there was no signs of any remorse —

DEFENSE: Judge, I'll object. Remorse is not an issue during guilt-innocence. That's a direct comment on the failure of the defendant to testify.

THE COURT: Overruled.

PROSECUTOR: You observed him in his testimony. You observed no sense of remorse on his part.

DEFENSE: Same objection, Your Honor.

THE COURT: Overruled.

Upon reviewing the record, we conclude that the prosecutor's statement, "you heard from the defendant himself," could reasonably have been interpreted by the jurors as a statement regarding Smith's testimony at the guilt/innocence phase of the trial, rather than a comment on his failure to testify at the punishment hearing. See Stewart v. State, 995 S.W.2d 187, 190 (Tex.App.-Fort Worth 1999, pet. ref'd). Likewise, we fail to see how the prosecutor's remark about remorse constituted a comment on Smith's failure to testify. To the contrary, the comment dealt solely with Smith's demeanor when he did testify. Accordingly, the trial court did not err in denying Smith's motion for mistrial. We overrule appellant's second and third issues on appeal.

RULE OF OPTIONAL COMPLETENESS

In his fourth issue, Smith contends that the trial court erred in excluding a tape-recorded oral statement he made to police following his arrest. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App. 1998). Here, Smith was cross-examined at trial regarding the post-arrest statement. Following this questioning, Smith offered the entire oral statement into evidence under rule 107 of the Rules of Evidence. See TEX. R. EVID. 107. Under rule 107, entitled the "Rule of Optional Completeness,"

[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. . . .

See TEX. R. EVID. 107. Rule 107 is designed to guard against the possibility of confusion, distortion, or false impression that could be created when only a portion of evidence is introduced. See Sauceda v. State, 129 S.W.3d 116, 119 (Tex.Crim.App. 2004); Roman v. State, 503 S.W.2d 252, 253 (Tex.Crim.App. 1974). There are two threshold requirements for the application of the rule. First, some portion of the matter sought to be "completed" must have actually been introduced into evidence. See Washington v. State, 856 S.W.2d 184, 186 (Tex.Crim.App. 1993); Goldberg v. State, 95 S.W.3d 345, 386 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (holding that merely referring to a statement does not invoke the rule). Second, the party seeking to complete the matter must show that the remainder being offered under rule 107 is on the same subject and is necessary to fully understand or explain the matter. See Mendiola v. State, 61 S.W.3d 541, 545 (Tex.App.-San Antonio 2001, no pet.). Here, the record does not establish that any portion of Smith's statement was read or played for the jury. Even assuming this was sufficient to meet the first requirement for the application of rule 107, however, we conclude that Smith clearly failed to meet the second requirement. Smith has not shown that it was necessary to admit the entire audio-taped statement to explain or understand the portions referred to by the State, nor has he contended that the State misrepresented the statements in any way.³ Because Smith failed to meet the requirements for the application of rule 107, the trial court did not err in excluding the otherwise hearsay statement. Accordingly, we overrule appellant's fourth issue on appeal.

EXCLUSION OF TESTIMONY

In his final two issues, Smith contends that the trial court erred in excluding testimony from defense witness Dr. Paul Osteen regarding: (1) the effects of Xanax when taken in conjunction with alcohol and marijuana, and (2) the financial advice he gave Smith prior to the death of the complainant. We review the trial court's decision to exclude testimony for an abuse of discretion. Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996). 1. Expert Testimony After a hearing held outside the presence of the jury, the trial court disallowed Dr. Osteen's testimony concerning the effects of combining Xanax, marijuana, and alcohol, because he was not an expert in the field of pharmacology, and therefore was not qualified to give expert advice concerning their effects. See TEX. R. EVID. 702. We agree. Rule 702 contains two initial hurdles that must be overcome before expert testimony will be admissible. See Roise v. State, 7 S.W.3d 225, 234 (Tex.App.-Austin 1999, pet. ref'd). The proponent of the testimony must establish (1) that the scientific, technical, or other specialized knowledge will aid the trier of fact, and (2) that the expert is qualified to testify on the subject. Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App. 1995). Regarding his qualifications to testify, Dr. Osteen expressed to the court that he was a board-certified surgeon who had practiced medicine from 1987 to 1999. Osteen testified that his education had included some training in pharmacology, including the effects of barbituates on the central nervous system. However, Osteen did not show professional credentials or occupational status in a field relating to the matter in question. Moreover, Osteen stated that he did not consider himself an expert in the area of pharmacology. Therefore, the trial court did not err in determining that, although the witness had knowledge in the area, he was not qualified to give expert testimony on the matter. However, even if the trial court did err in excluding Osteen's testimony as a qualified expert, Smith failed to show that Dr. Osteen's testimony was relevant and, therefore, would aid the trier of fact. Here, at the time Smith offered Osteen's testimony, there was no evidence that the complainant had ever taken Xanax. The complainant's autopsy report showed that she had alcohol and marijuana in her system when she died. The complainant was not specifically tested for barbituates, and there is no evidence in the record that she had Xanax in her system when she died. Accordingly, the trial court did not abuse its discretion in excluding Osteen's testimony, and we overrule this issue on appeal. 2. Advice In addition, Smith argues that Dr. Osteen should have been permitted to testify regarding advice he allegedly gave to Smith prior to his murder of the complainant.⁴ On appeal, Smith contends that Osteen's testimony was necessary to negate assertions made by the State that Smith had acted in a jealous rage when he murdered the complainant. However, Osteen's advice to Smith was not relevant to any material issue at trial. Accordingly, the trial court did not abuse its discretion in excluding the testimony, and we overrule this issue on appeal.

CONCLUSION

Having overruled all issues, we affirm the judgment of the trial court.