Opinion
Nos. 01-07-01062-CR, 01-07-01085-CR, 01-07-01086-CR
Opinion issued July 9, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 278th District Court Grimes County, Texas, Trial Court Cause Nos. 14,255; 16,107; 16,109.
Panel consists of Justices KEYES, HANKS, and BLAND.
MEMORANDUM OPINION
A jury convicted appellant, Jimmy Dale Truitt, of aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon.See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2), 46.04(a)(1) (Vernon Supp. 2008). The cases were consolidated for trial. The jury assessed punishment at 18 years in prison for aggravated assault and 10 years in prison for unlawful possession of a firearm. In a hearing held during jury deliberations, the trial court also revoked the probation of appellant's three-year sentence for a previous conviction of aggravated assault. In four issues, appellant contends that: (1) the evidence supporting his convictions is legally and factually insufficient; (2) the trial court erred by allowing the State to impeach its own witness with a prior inconsistent statement made to another witness; (3) the trial court erred by allowing the prosecutor to engage in misconduct during trial; and (4) the trial court denied appellant a fair probation revocation hearing. We affirm.
Trial Court Cause Number 16,109; Appellate Cause Number 01-07-01085-CR
Trial Court Cause Number 16,107; Appellate Cause Number 01-07-01086-CR
Trial Court Cause Number 14,255; Appellate Cause Number 01-07-01062-CR
Background
Complainant's Testimony
The complainant, Travis Carleton, and his family lived with another couple, Janice and JR Homeier. On November 10, 2006, the Homeiers hosted several out-of-town relatives. The group built a campfire, and Carleton testified that everyone was "outside around the fire drinking and having a good time." At some point during the evening, Carleton testified, "[the people at his home] heard somebody yelling" in a friendly manner from another home down the street, and they began "yelling back." Carleton testified that the yelling continued for "[n]ot even a minute" and that, immediately after it stopped, he saw two people he did not recognize, who appeared "pretty intoxicated[,] . . . walking from that house towards ours." The individuals, one of whom Carleton identified in court as appellant, entered the party and then "introduced themselves and started being obnoxious." Later that night, appellant "all of a sudden" asked who lived at the house, and Carleton told appellant that he lived there. Carleton testified that appellant then asked him, "[W]here is your old lady at[?]" and referred to Carleton's wife as a "f***ing bitch." Appellant then shoved Carleton, and Carleton punched appellant in the mouth. The two fought, Carleton testified, for about "[t]hirty seconds" before being separated. Appellant then left the party, and Carleton "went back into the house to clean up [his] hand." Carleton testified that, while he was inside the house, he heard Janice Homeier "yelling from outside, who are you, what do you want. [sic] What do you want, what are you doing here. [sic]" Carleton "immediately ran right back outside," where he saw a "black or dark blue" car "parked in front of the driveway . . . just stopped in the middle of the road." Carleton testified that he approached the car, which had its driver's side window down, and saw appellant "bent into the center console and he looked up over his shoulder at me. And I locked eyes with him and I heard him say there is that mother f***er." Carleton began to back away from the car and heard a gunshot. A bullet struck and shattered Carleton's femur. Carleton testified that he did not see the gun because he "was too busy getting away."Other Testimony
That an altercation took place between appellant and Carleton at Carleton's house is uncontroverted. Several witnesses who were at the party testified that, soon after appellant fought with Carleton and left, a dark-colored car stopped in front of the house. JR Homeier, who lives with Carleton, and Mary Ann Solis, one of the party guests, both testified that they saw appellant point a firearm in Carleton's direction from the window of the car and fire it. Homeier testified that he saw "a pistol come out the window [of the car] and [appellant's] face come out the window . . . [and] a big blast and it just lit up everywhere." Solis testified that she saw both a gun and a muzzle flash, and she identified appellant as the person holding the gun. Another party guest, Paul Foreman, testified that "[Carleton] walked up and the person in the car said you're the mother f***er I'm looking for" and then he heard a gunshot. Foreman further testified that he recognized the voice as appellant's "[f]rom earlier when he was there at the fire [at the party]." Captain Greene of the Grimes County Sheriff's Office testified that he interviewed Carleton approximately five days after the shooting. Greene testified that he showed Carleton a photo lineup and that Carleton, within a "[c]ouple of seconds," identified appellant as the person who shot him. John Bell, a friend of appellant's who was also present, testified that appellant was driving a black Toyota on the night of the shooting. Bell further testified that, after the fight between appellant and Carleton, he drove appellant, who lived nearby, home in appellant's car; gave appellant's car keys to appellant's wife, Shannon Truitt; and left on foot for another friend's house. Bell testified that, while he was walking, he heard a gunshot just before a dark-colored car came "flying by." One of the investigating officers, Captain Greene, testified that, on the night of the shooting, Bell told him that the dark-colored car was appellant's. Shannon, appellant's wife, testified that, after Bell brought appellant home, appellant "fell asleep on the couch" with her and one of their children. The next morning, Shannon testified, she and appellant "call[ed] around and [found] out" that a warrant had been issued for appellant's arrest. Shannon testified that appellant later turned himself in.Legal and Factual Sufficiency
In his first issue, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions. Specifically, appellant argues that his conviction should be reversed because "[t]here was so much contradictory evidence and so little evidence actually supporting a reasonable inference that [appellant] committed the offense[s]. . . . [emphasis in original]"Standard of Review — Legal Sufficiency
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Cruz v. State, 238 S.W.3d 381, 386 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (citing King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000)). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).Standard of Review — Factual Sufficiency
When conducting 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 aside the verdict 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). 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. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The jury is free to accept or to reject any or all of the evidence presented by either side. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001).Discussion
A person commits the offense of aggravated assault when he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon while doing so. Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2008). A person commits the offense of unlawful possession of a firearm when he possesses a firearm after he has been convicted of a felony and before the fifth anniversary of his release from confinement following conviction or his release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Id. § 46.04(a)(1) (Vernon Supp. 2008). "Possession" means actual care, custody, control, or management. Id. § 1.07(39) (Vernon Supp. 2008). During the guilt/innocence phase of trial, the trial court admitted into evidence a judgment indicating that appellant had pleaded guilty to aggravated assault in another case and was placed on probation for five years, beginning January 7, 2002. During the State's case, two witnesses testified that they saw appellant discharge a firearm in Carleton's direction, and Carleton testified that he was hospitalized because a bullet shattered his femur. Based on that testimony, a rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. We conclude that appellant's convictions were supported by legally sufficient evidence. Appellant contends on appeal that the accounts of the State's witnesses are not credible because they contain inconsistencies. He also points out that "no witness ever told Captain Green [sic] that [appellant] was the shooter." The jury is the sole judge of the credibility of witnesses and may choose to believe some testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008) (citing Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000)). We afford almost complete deference to a jury's evaluation of credibility. Lancon, 253 S.W.3d at 705 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006)). The jury clearly believed the testimony of the State's witnesses and disbelieved that of appellant's wife, who said that he was with her at the time of the shooting. We defer to the jury's determination that the State's witnesses were credible and that appellant's wife was not. Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury's credibility determinations, we conclude that the evidence supporting the jury's verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. Pena v. State, 251 S.W.3d 601, 609-10 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Accordingly, we conclude that appellant's convictions were supported by factually sufficient evidence. We overrule appellant's first issue.Impeachment
In his second issue, appellant contends that the trial court erred by allowing the State to impeach its own witness with a prior inconsistent statement made to another witness.The Testimony
The State called John Bell, a friend of appellant's, who testified that he took appellant home in appellant's car, gave appellant's car keys to appellant's wife, and began to walk toward a friend's house. Bell further testified that, while he was walking, he "heard a loud pow" then "saw a car flying by . . . [and] dove in the bushes . . . [b]ecause [the car] was driving erratically."On redirect, the following exchange took place:
[Prosecutor]: Do you remember being interviewed by a police officer, Todd Greene, over at Mr. Hamner's house or after the shooting out there?
[Bell]: Yes, sir, I guess so. If that was him, I don't know.
[Prosecutor]: And you gave a written statement, right?
[Bell]: Yes, sir.
[Prosecutor]: And isn't it true that you told Officer Greene that that was Jimmy Dale Truitt's car that sped past you?
[Bell]: No, sir, I did not.
[Prosecutor]: So you're saying unequivocally you never told Todd Greene that that was Jimmy Dale Truitt's car that sped past you?
[Bell]: Yes, sir, I did not.
Later, the State called Captain Greene. The following exchange took place during the State's direct examination of Greene:[Prosecutor]: And during your oral conversation with John Bell do you recall him talking to you about walking back and a car passing him?
[Greene]: Yes, I do.
[Prosecutor]: And can you tell the jury what it was that John Bell told you in describing the vehicle that passed him.
[Greene]: When he was walking back from the —
[Defense counsel]: Object to hearsay.
[Prosecutor]: Offered to impeach his testimony in response to the defense that he never told anybody that it was Jimmy Truitt's car.
[The Court]: Overruled.
[Prosecutor]: Go ahead.
[Greene]: Mr. Bell said he was walking back from the party and as he was walking down the road Jimmy Dale's car drove past him.
[Prosecutor]: He specifically said it was Jimmy Dale's car?
[Greene]: Yes, he did.
Waiver
Appellant argues that the trial court erred by overruling his objection because the State called Bell solely to elicit testimony that would be impeachable by the otherwise inadmissible hearsay testimony related by Greene. We conclude that appellant did not preserve error. Appellant merely made a hearsay objection and did not in any way convey to the trial court the complaint he now raises on appeal. Miranda v. State, 813 S.W.2d 724, 737 (Tex.App.-San Antonio 1991, pet. ref'd) (holding objections to hearsay and improper predicate were insufficient to preserve complaint that State called witness solely to later get inadmissible hearsay before jury under guise of impeachment); cf. Kelly v. State, 60 S.W.3d 299, 300, n. 1 (Tex.App.-Dallas 2001, no pet.) (concluding that error was preserved on identical complaint when counsel objected to "improper impeachment . . . intended to elicit inadmissable [sic] hearsay"). We overrule appellant's second issue.Prosecutor's Conduct
In his third issue, appellant contends that the prosecutor engaged in misconduct while cross-examining appellant's wife, Shannon.The Testimony
On direct examination, appellant's wife, Shannon, testified as follows:
[Defense counsel]: Okay. So there is [sic] doors on each side of your home?
[Shannon]: Yes. There is a sliding glass door that is the back door. Sherry [appellant's sister] had come up to there and she — I told her that — I told her to come inside real quick because I thought them people [sic] were — I told her about them people [sic] were banging on my door awhile ago. But she told me that it was — she thinks it was the cops because they were just at Judy Truitt's house, which is his mother. So they — she told me who they were and then she left. And then I told Jimmy Dale that I think [sic] it was the cops. So it was in the middle of the night so we waited until the next morning to call around and find out what was going on. And then that's when we found out he had a warrant on that.
[Defense counsel]: And then he subsequently turned himself in to law enforcement, correct?
[Shannon]: Yes, sir.
On cross-examination, Shannon gave the following testimony:
[Prosecutor]: It's your testimony that Jimmy Dale turned himself in the next day?
[Shannon]: I'm not sure the following day. I think it was like a couple of days afterward.
[Prosecutor]: Wasn't it like a week later?
[Shannon]: I don't know. I don't remember.
[Prosecutor]: Well, you just testified under oath to this jury that the next day Jimmy Dale went down and turned himself in.
[Defense counsel]: I object. That is argumentative. That is not what she testified to.
[The Court]: Overruled.
[Defense counsel]: Your Honor, the question that I asked was did he turn himself in subsequently.
[Prosecutor]: Her response was the next day.
[To Shannon]: So you don't know if he turned himself in the next day or the week later?
[Shannon]: I just said, yes, sir, it was a few days later. Because we had to get some things — we were trying to — they had said that he had a warrant. They told us that, you know, contact a bond company and all of that and that's what we were doing. And then he turned himself in as soon as he did that.
[Prosecutor]: So it was several days later, up to a week later, right?
[Shannon]: Yes, sir.
[Prosecutor]: Not like you said previously, correct?
[Shannon]: Yes, sir.
Prosecutorial Misconduct
Appellant argues that, during his cross-examination, the prosecutor misrepresented Shannon's earlier testimony, "casting [her] as a liar" in an attempt to "undermine her entire testimony [,]" which violated appellant's due-process rights by creating a false impression for the jury. Appellant cites Davis v. State, 831 S.W.2d 426 (Tex.App.-Austin 1992, pet. ref'd), and Duggan v. State, 778 S.W.2d 465 (Tex.Crim.App. 1989), to support his argument that the prosecutor's actions constituted prosecutorial misconduct. Davis and Duggan deal with far more egregious conduct than the instant case presents and therefore provide little guidance. In Davis, the prosecutor met with a witness at his office during a trial recess and intimidated her — at one point threatening her with a perjury charge — into changing her testimony. Davis, 831 S.W.2d at 438-39. In Duggan, the prosecutor allowed two State witnesses to testify falsely on cross-examination by defense counsel that they had not exchanged their testimony for the State's promise of leniency on their own cases. Duggan, 778 S.W.2d at 467-68. Even if the cases cited by appellant were more analogous to the facts before us, prosecutorial misconduct is an independent basis for objection that must be specifically urged in order for error to be preserved. Hajjar v. State, 176 S.W.3d 554, 566 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); see also Hernandez v. State, 914 S.W.2d 218, 225 (Tex.App.-El Paso 1996, pet. ref'd) (citing Huffman v. State, 746 S.W.2d 212, 218 (Tex.Crim.App. 1988) (defendant must object that the prosecutor's question was clearly calculated to inflame the minds of the jury and was of such a character so as to suggest the impossibility of withdrawing the impression produced)). Appellant's counsel objected to the prosecutor's aggressive cross-examination on the basis that it was argumentative because it misstated Shannon's earlier testimony, but he gave the trial court no indication that he felt the prosecutor's conduct was clearly calculated to inflame the minds of the jury and was of such a character that it could not be cured by an instruction to disregard. In addition, no instruction to disregard was sought. We conclude that appellant waived his complaint and, accordingly, overrule his third issue.Revocation Hearing
In his fourth issue, appellant contends that the trial court denied him a fair probation revocation hearing by excluding testimony from a prior hearing when appellant attempted to introduce it.Previous Proceeding
Appellant was placed on five years' probation in January of 2002 after pleading guilty to aggravated assault. No orders were entered modifying the length of appellant's probation. In 2004, the State moved to revoke appellant's probation, and the trial court held a hearing on that motion at which appellant's probation officer, Cheri Davis, testified that appellant's probationary period would end in January of 2005. At the 2007 revocation hearing at issue in this case, while cross-examining Davis, appellant's counsel attempted to introduce Davis's 2004 testimony into evidence:[Defense counsel]: Ms. Davis, when we look at the hearing that we had back in 2004, you have had an opportunity to review that hearing transcript; is that correct?
[Davis]: Yes, sir.
[Defense counsel]: And do you recall back at that time that it was the belief of everyone and what was represented to the Court was that he was going to come off of probation just some months down the road?
[Prosecutor]: Judge, I object to speculation about what everyone believes. What does that have to do with whether he violated probation or not?
[The Court]: Sustained.
[Defense counsel]: Do you recall having previously given testimony about how much longer he would have on probation at that time?
[Davis]: I did read it in the transcript today.
[Defense counsel]: And that was your testimony, correct?
[Davis]: I'm sure it was, yes.
[Defense counsel]: And so at that time you were under the impression that he only had a short time left on his probation, right?
[Davis]: Actually I think that was my mistake.
[Defense counsel]: And if it's a mistake that's fine. But a mistake was made, correct?
[Davis]: Correct.
[Defense counsel]: And that was one of the reasons we were looking at that to have his entire probation fees paid up by the date of that hearing and the Court has previously ordered him to do and he had done that, correct?
[The Court]: How is this relevant at this time?
[Defense counsel]: Judge, that is relevant in your taking into consideration this young man being on probation because at the time everyone had thought, and the testimony was, that not that he was on up until 2007 but he was getting off the Spring of the next year. You told him —
[The Court]: I don't even remember any of that.
[Defense counsel]: You told him to have all his fees paid in full before the hearing.
[The Court]: That is not a part of what we are here about.
[Defense counsel]: Well, it really is.
[The Court]: It really is not. I'm going to consider only what is in this amended motion here. And please, let's not get off into something that is not in this amended motion to revoke.
[Defense counsel]: Judge, respectfully, Your Honor, if I may say that we are not getting off into something that is not —
[The Court]: I think we are and I'm ruling that we are and I don't want to hear it. If it's not in this amended motion to revoke probation I don't want to hear it.
[Defense counsel]: That's what I'm talking about, Judge.
[The Court]: You can make a Bill of Exception later on if you want to on that, but I don't want to hear it.Appellant's counsel made a Bill of Exception, during which he explained that Davis's 2004 testimony gave appellant the impression that his probation would expire in January of 2005:
[Defense counsel]: Because after the spring time of 2005, that was when [appellant] believed, and based on the testimony and the representations that were made in the courtroom, that he was actually going to be off probation. Now, but subsequently find out and are aware [sic] that this probation is five years and he was not going to be released that spring, early summer of the following year.After Davis finished testifying, the trial judge asked the attorneys to "refresh [his] memory" about the 2004 hearing. Appellant's counsel reiterated his position that Davis's 2004 testimony created an ambiguity in the probation terms. The trial judge replied:
[The Court]: Well, it [appellant's probationary term] wouldn't have expired until January of 2007 would it?
[Defense counsel]: Well, that was the mistake made, Judge.
. . .
[The Court]: But the order that is in place now is that he would have expired January, 2007, if he had done what he was supposed to do?
[Defense counsel]: According to the order, that is correct, Judge.Appellant argues that the trial court failed to function as a "neutral and detached hearing body" and denied him due process by "wholly fail[ing] to consider the evidence by defense counsel" when "[t]here was some issue over when the actual term of probation ended. . . ." In support of his contention, appellant cites two cases — Cooper v. State, 655 S.W.2d 345 (Tex.App.-Dallas 1983, no pet.) and Campbell v. State, 420 S.W.2d 715 (Tex.Crim.App. 1967) — addressing ambiguities in the context of probation revocation proceedings.