OTIS DONTE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01177-CR
............................
OTIS DONTE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-53077-TRY
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OPINION
Before Justices Morris, Bridges, and O'Neill
Opinion By Justice Bridges
        Otis Donte Johnson appeals his murder conviction. A jury convicted appellant and sentenced him to life confinement and a $10,000 fine. In three issues, appellant argues the trial court erred in admitting appellant's written statement and evidence of an extraneous offense and in denying appellant's motion for new trial. We affirm the trial court's judgment.
        Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. On May 26, 2005, Curtis Allen was shot to death outside his home. Teresa Harris, Allen's girlfriend, testified she and Alan knew appellant because appellant sold drugs to them. On the night of the shooting, Allen, Harris, and a man named Wes Chapman were sitting in Allen's driveway and drinking beer. Allen's cell phone rang at 1:32 a.m. but Allen did not answer the call because he saw it came from appellant's number. Ten minutes later, appellant arrived, and Allen and Harris approached appellant's car. The three discussed a $20 rock of crack cocaine which appellant had given Allen and Harris on credit and for which appellant demanded $280. As the conversation turned toward what appellant would do if he were not paid, appellant said, “I don't fight with my fists. I fight with a . 45.” Appellant got out of his car, pointed his gun at Allen's head, and shot Allen. Harris saw appellant shoot Allen.
        That same day, appellant was arrested and brought to the police station. Detective Dennis Craig read appellant his Miranda rights and interviewed appellant. Craig was aware that appellant had a pending 2004 murder case and knew the identity of the lead detective on the 2004 case. Craig also knew that appellant was released on bond in the pending 2004 case on January 31, 2005. Craig did not know the appellant had an attorney representing him in the pending 2004 case. Appellant did not request an attorney during the taking of his statement or ask that the interview be stopped. Craig testified nothing was done to coerce or threaten appellant into giving a statement, and no promises were made, either directly or indirectly, in exchange for appellant's statement. The appellant said he understood his Miranda rights printed on his written statement, and he initialed his voluntary waiver of those rights. In his written statement, appellant admitted he was at a Fina gas station located near the DMX nightclub a couple of weeks before Allen was shot. Appellant stated he blacked out, and when he regained consciousness he was pointing a black Beretta 9 mm handgun.
        At trial, the trial court admitted portions of appellant's written statement, particularly the portion which placed appellant, in possession of a handgun, at a Fina station a couple of weeks before the Allen shooting. Anthony Jones testified he saw appellant firing a gun at a Fina gas station on May 13, 2005. Heather Thomas, of the Southwestern Institute of Forensic Sciences, testified that fired bullet jackets from a homicide committed at a Fina station on May 13, 2005 were fired by the same .45 firearm used in the Allen murder. The trial court ruled that the extraneous May 13 offense was relevant in establishing appellant's identity in the Allen murder. A jury convicted appellant of murdering Allen. Appellant filed a motion for new trial alleging juror misconduct. The trial court denied appellant's motion for new trial, and this appeal followed.
        In his first issue, appellant argues the trial court erred in admitting his written statement. Specifically, appellant argues the statement was inadmissible because appellant was represented by an attorney in another case, Craig should have notified appellant's attorney before interviewing appellant, and any waiver of the right to counsel was therefore invalid.
        The right to counsel is offense specific. Thompson v. State, 108 S.W.3d 269, 274 (Tex. Crim. App. 2003). If the right to counsel has not yet attached through the initiation of adversary judicial proceedings, then interrogating the defendant, either through obvious police questioning or surreptitious informant questioning, does not violate the Sixth Amendment. Id. The fact that the right to counsel has attached with regard to one offense does not mean that it has attached with regard to another offense. Id. The right to counsel is not a protective cloak which prevents the police from continuing to investigate the defendant in other crimes. Id.
        Here, appellant was questioned before his right to counsel has attached with regard to the Allen murder. Regarding the 2004 murder case, appellant's right to counsel had attached when counsel was retained, but appellant's right to counsel was specific to that offense. Therefore, it could not be invoked for the future prosecution in the Allen murder. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Thompson, 108 S.W.3d at 274. Craig testified he informed appellant of his Miranda rights, and appellant voluntarily waived those rights. Under these circumstances, we cannot conclude the trial court erred in admitting appellant's written statement, even though appellant was represented by counsel in the pending 2004 murder case. We overrule appellant's first issue.
        In his second issue, appellant argues the trial court erred in admitting evidence of an extraneous incident in which appellant was in possession of a handgun because appellant's identity was not an issue, and the prejudicial effect of this evidence far exceeded its probative value.
        Rule of evidence 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). For example, evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Id. Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under rule 404(b). Id. However, even if the evidence is relevant, and the purpose for which it is being offered is permissible under rule 404(b), it may still be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id. Extraneous offense evidence may be relevant under rule 404 (b) to prove identity by rebutting a defensive theory that the defendant did not commit the offense or that someone other than the defendant caused the alleged injury. Johnston v. State, 145 S.W.3d 215, 220 (Tex. Crim. App. 2004).
        A trial court's admission of extraneous offense evidence is reviewed for an abuse of discretion. Moses, 105 S.W.3d at 627. Whether extraneous offense evidence has relevance apart from character conformity, as required by rule 404(b), is a question for the trial court. Id. When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Id.
        Here, appellant attempted to establish an alibi defense, presenting the testimony of his former girlfriend that, on the night Alan was murdered, appellant was with her at his residence. Appellant also cross-examined Harris and attempted to impeach the reliability of her identification of appellant as Allen's murderer. Appellant questioned Harris about the extent of her cocaine addiction and the quantity of alcohol and drugs she had ingested on the day of Allen's murder and immediately before the shooting. Appellant attempted to advance the theory that Harris was under the influence of drugs and alcohol at the time she gave her statement identifying appellant as Allen's murderer. The trial court admitted portions of appellant's written statement, particularly the portion which placed appellant, in possession of a handgun, at a Fina station a couple of weeks before the Allen shooting. Anthony Jones testified he saw appellant firing a gun at a Fina gas station on May 13, 2005. Although appellant's written statement referred to a 9 mm handgun, Harris heard appellant say “I fight with a .45.” Thomas testified that .45 bullet jackets from a homicide committed at a Fina station on May 13, 2005 were fired by the same .45 firearm used in the Allen murder. Having reviewed the record, we cannot conclude the trial court abused its discretion in admitting evidence concerning the extraneous May 13 homicide to establish appellant's identity as Allen's murderer. Johnston, 145 S.W.3d at 220; Moses, 105 S.W.3d at 626. We overrule appellant's second issue.
        In his third issue, appellant argues the trial court abused its discretion by denying his motion for new trial based on an allegation of juror misconduct. If the trial court denies a hearing on a motion for new trial and the defendant appeals from that denial, the appellate court must review the trial court's decision for abuse of discretion. Wallace v. State, 106 S.W.3d 103,108 (Tex. Crim. App. 2003). When a defendant presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). The purpose of the hearing is to fully develop the issues raised in the motion. Id. As a prerequisite to obtaining a hearing, the motion must be supported by an affidavit specifically showing the truth of the grounds for attack. Id. It is not a statutory but a judicial requirement that motions for new trial be supported by affidavits, and this requirement is applicable only to cases where the motion is grounded on matters that are not already a part of the case record. Bahm v. State, 219 S.W.3d 391, 395 (Tex. Crim. App. 2007).
        A defendant must be granted a new trial when a juror has talked with anyone about the case or when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial. Tex. R. App. P. 21.3(f), (g). Although it is generally presumed that the defendant is injured whenever an empaneled juror converses with an unauthorized person about a case, the defendant has the burden to establish that, if a conversation did occur between a non-sequestered juror and someone else, the discussion involved matters concerning the specific case at trial. Romo v. State, 631 S.W.2d 504, 506 (Tex. Crim. App. 1982), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996).
        Here, appellant's motion for new trial was not supported by any affidavits. Thus, the trial court's review of the arguments in appellant's motion for new trial was limited to the record, and no hearing was required. The record shows that, during the second day of the punishment stage, it came to the court's attention that there had been threats made against the jury in this case. The trial court called the jury foreman, and he testified that none of the jurors directly heard the threat. The foreman testified that a juror had a boyfriend attending the trial who told her that he heard a threat to “cap” the jurors if their sentence was severe. The juror revealed this information to the foreman, who then told all the jurors that a death threat had been made against the jury. The foreman said nothing more. He did not know whether the boyfriend had said anything more to the juror. The foreman testified that the juror told him that the threat was made by someone inside the courtroom. The trial court continued the trial but ordered that no spectators would be allowed in the courtroom. There were no objections from appellant, and appellant did not request additional testimony from any other juror or from the boyfriend who had the conversation with the juror. Under these circumstances, we conclude appellant has not met preserved any error for our review. See Tex. R. App. P. 33.1(a). We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061177F.U05