CARL DAVID JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 21, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00925-CR
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CARL DAVID JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F07-01220-VI
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OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
        Carl David Jones appeals his conviction for capital murder. After the jury found appellant guilty, the trial court sentenced appellant to life imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon 2006). Appellant brings four issues asserting (1) the evidence is legally insufficient; (2) the jury charge erroneously allowed the jurors to convict appellant based on a finding that he committed the burglary in the course of committing an aggravated assault or murder; (3) appellant was denied the effective assistance of counsel when his counsel failed to object to the jury charge that authorized the jurors to convict on legal theories not supported by the law; and (4) the trial court erred in admitting into evidence a detective's opinion testimony regarding a question of law. We affirm the trial court's judgment.
FACTUAL BACKGROUND
        Appellant and his wife, Paula Jones, the complainant, separated in 2005. Appellant was upset that she had separated from him and that she was dating another man. Jones refused to answer appellant's telephone calls and tried to conceal her location from him. Appellant tried to find Jones through their children, but they refused to disclose her location. Appellant told several people he was going to kill Jones and her boyfriend. On May 25, 2007, appellant learned from Jones's sister that Jones was staying with her mother, and he went to that location. Jones's sister called Jones and told her appellant knew where she was. When he got to the house where Jones was staying, appellant stood outside the house and shouted that Jones had to the count of three to come outside or he would kick the door in. Jones did not go outside, and she tried to barricade herself in a back bedroom. Jones's niece, who was also inside the house, grabbed a golf club as a weapon. When Jones did not go outside, appellant kicked in the door. He entered the house, made his way to the back bedroom, and forced his way in. He confronted Jones and said, “Didn't I tell you, you couldn't leave me,” and he slapped her. Appellant then drew a knife and stabbed Jones repeatedly, including in the heart. Jones's niece hit appellant with the golf club and knocked the knife away, but she lost control of the golf club. Appellant then grabbed Jones around the neck and head and twisted her head. Jones's niece hit appellant in the head with a piece of wood, and appellant let go of Jones and fled from the house. Appellant was apprehended soon afterwards. Jones died from the stab wounds appellant inflicted on her.
        The indictment alleged appellant intentionally caused Jones's death by stabbing and cutting her with a knife and that he “was then and there in the course of committing and attempting to commit the offense of BURGLARY.” See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). The application paragraph of the jury charge instructed the jurors that to find appellant guilty of capital murder, they had to find beyond a reasonable doubt that he intentionally caused Jones's death by stabbing and cutting her with a knife, and that he “was then and there in the course of committing or attempting to commit the offense of burglary.” The charge defined “burglary” as follows: “A person commits the offense of burglary, a felony, if, without the effective consent of the owner, the person intentionally or knowing enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” (Emphasis omitted.) The charge also included an application paragraph for the lesser included offense of murder. The jury found appellant guilty of capital murder as charged in the indictment.
MURDER OR CAPITAL MURDER?
        Appellant's first three issues all concern whether he can be convicted of capital murder with the aggravating element of burglary of a habitation when the felony for the burglary is the murder of the complainant. In other words, appellant asserts the same murder cannot be used for both the murder and the burglary elements of capital murder. In his first issue, appellant argues that the evidence is legally insufficient to convict him of capital murder because Jones's murder was both the alleged murder and the felony in the burglary allegation. In his second issue, he asserts the jury charge was erroneous because it permitted the jury to find him guilty of capital murder of Jones if it found that Jones's murder was the felony in the burglary allegation. In his third issue, he argues that he lacked effective assistance of counsel because trial counsel did not object to this asserted defect in the jury charge.
        Appellant argues that interpreting the capital murder statute to permit the alleged murder to form the felony in the aggravating burglary would defeat the legislature's intent that capital murder be limited to “a small group of narrowly defined and particularly brutal offenses.” Jurek v. State, 522 S.W.2d 934, 939 (Tex. Crim. App. 1975), aff'd, 428 U.S. 262 (1976). Appellant asserts that such an interpretation would elevate a case from murder to capital murder “even if a defendant only criminally trespassed into a residence and murdered the occupant of the residence.” Appellant argues that such an interpretation was not the intent of the legislature when it required the commission of a burglary and not merely a criminal trespass.
        The court of criminal appeals, however, has interpreted the statute to permit the alleged murder to be the underlying felony in the aggravating element of burglary. In Homan v. State, 19 S.W.3d 847 (Tex. Crim. App. 2000), the defendant was angry with the complainant, his ex-wife, and he drove to her house. There, he “gained entrance in spite of her protests,” and he killed the complainant. Id. at 848 n.2. The court of appeals reversed his conviction, concluding “that the murder of the victim could not be used to make the entry in her home a burglary and, at the same time, use the burglary as the aggravating offense to make the murder into a capital murder.” Id. at 847, 848. The Texas Court of Criminal Appeals reversed the court of appeals and observed, “This Court has upheld capital murder convictions, concluding that the evidence sufficiently established the underlying felony of burglary by murder of the victim following the unlawful entry into the habitation.” Id. at 849. Likewise, in Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995), which was an appeal of a capital murder conviction where burglary was the aggravating element, the court stated,
 
The jury was instructed that a person commits the offense of burglary “if, without the effective consent of the owner, he: . . . enters a habitation and commits or attempts to commit a felony or theft.” In a capital murder prosecution, the requirement that a felony be committed is satisfied by the actual murder of the victim.
 
Id. at 474. This Court, relying on Homan, also concluded that in a capital murder case with burglary as the aggravating element, the complainant's murder could be the felony in the burglary. See Brown v. State, 92 S.W.3d 655, 659 (Tex. App.-Dallas 2002) (citing Homan), aff'd, 122 S.W.3d 794 (Tex. Crim. App. 2003).         Appellant observes that Judge Johnson delivered a dissenting opinion in Homan that disagreed with the majority's decision because it “relies upon case law which has no basis in logic and which misinterprets earlier precedent.” Homan, 19 S.W.3d at 851 (Johnson, J., dissenting). Appellant asks that we follow Judge Johnson's reasoning in her dissenting opinion. However, this Court is bound by the precedents of the court of criminal appeals, including those made by the majority of the court in Matamoros and Homan. See Brown, 92 S.W.3d at 659. Because appellant's argument has been rejected by the majority of the court of criminal appeals, we overrule his first, second, and third issues.
OPINION TESTIMONY
        In his fourth issue, appellant asserts the trial court erred in admitting into evidence a detective's opinion testimony regarding a question of law. During the redirect examination of Detective Paul Ellzey, the following occurred:
 
Q.
 
Would you say-breaking into a home to commit assault or an aggravated assault and then killing someone, would you say that's a capital murder?
 
 
 
[Defense Counsel]:
 
I'm going to object to improper legal conclusion, and it invades the province of the jury.
 
 
 
The Court:
 
Overruled.
 
 
 
A.
 
In my opinion as a 31-year career peace officer, that definitely fits the criteria of capital murder.
 
        Appellant argues that Detective Ellzey's statement was not admissible under rule of evidence 702, which states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. An expert witness may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts. Anderson v. State, 193 S.W.3d 34, 38 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). However, an expert witness may not testify to his opinion on a pure question of law. Id. As the court of criminal appeals explained,
 
The use of expert testimony must be limited to situations in which the expert's knowledge and experience on a relevant issue are beyond that of an average juror. The decision to be made remains with the jury, but the testimonial expertise is allowed to enable the trier of fact to better comprehend the full significance of the evidence. The evidence at issue is admissible if it encompasses or “embraces” an ultimate fact; it may not decide that fact for the jury.
 
Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990), overruled on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).
        In this case, Detective Ellzey's testimony decided the ultimate fact for the jury, whether the undisputed fact that appellant broke into the house and killed Jones constituted capital murder. His testimony that the undisputed facts constituted the offense of capital murder was not designed to enable the jurors “to better comprehend the full significance of the evidence” while leaving the ultimate decision to the jury. Id. His testimony decided the issue of guilt for the jury. Accordingly, his opinion was inadmissible. We conclude the trial court erred in admitting the testimony.
        Having found the trial court erred, we must determine whether the error was reversible. The error in this case was not of constitutional dimension, so we consider whether the error “affect[ed] substantial rights.” Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial right must be disregarded.”). The court of criminal appeals has construed this rule to mean,
 
an error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict. We should not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but slight effect.
 
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) (footnote omitted).         The error, in this case was the trial court's allowing Detective Ellzey to testify to the legal conclusion that “breaking into a home to commit assault or an aggravated assault and then killing someone” is capital murder. Appellant asserts this error was harmful for two reasons. First appellant argues the detective's legal conclusion was incorrect. However, as explained above, the detective's conclusion was consistent with the holdings of the court of criminal appeals. Therefore, in light of the court of criminal appeals' decisions in Matamoros and Homan, the detective's legal conclusion was correct. Second, appellant argues that the testimony resulted in the jury's rejection of appellant's defense that he was guilty only of murder. However, to the extent appellant's defense was based on his argument that the alleged murder could not also be the felony in the aggravating burglary, it lacked a valid basis. As explained above, the court of criminal appeals has expressly held that entering a building or habitation without the effective consent of the owner and killing a person therein constitutes capital murder because it is murder in the course of committing burglary. See Homan, 19 S.W.3d at 849; Matamoros, 901 S.W.2d at 474.
        We conclude the error, in admitting the detective's legal conclusion did not affect appellant's substantial rights. Tex. R. App. P. 44.2(b). We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080925F.U05