Perry, William Keen v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Opinion filed September 12, 2002

Affirmed and Opinion filed September 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-00126-CR

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WILLIAM KEEN PERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

HarrisCounty, Texas

Trial Court Cause No. 796,970

O P I N I O N

William Keen Perry, appellant, brings this appeal from a conviction of the offense of solicitation of capital murder. A jury found appellant guilty and assessed punishment at twenty-five years confinement in the Institutional Division of Texas Department of Criminal Justice, and a $5,000 fine. In three points of error, appellant complains the trial court erred by (1) allowing the State to amend its original indictment; (2) refusing to appoint a defense expert to assist appellant during the punishment phase of trial; and (3) admitting a prejudicial tape recording. We affirm.

F A C T U A L B A C K G R O U N D

The complainant, Joan Collin, and appellant married on February 14, 1992. After a year or two, they began having marital problems. Appellant first moved out of the house and stayed with his parents in 1993. Later, appellant moved back and forth between his parent s house and complainant s house. Divorce actions were filed by both the complainant and appellant. However, these actions were ultimately dismissed. Complainant and appellant were permanently separated in 1998, and appellant moved back into his parent s house.

Complainant testified that appellant threatened her many times after he moved out in 1998. She stated that she received several warnings concerning her safety from other people. Complainant testified that, during Halloween week 1998 and the week following, appellant threatened to kill her. Shelly Smothermon, an employee of Accent Mobile Homes, testified that appellant told her he was going to kill complainant and two of her close friends. Appellant told his friend of many years, Michael Seibert, that he was going to have his wife whacked or killed.

A couple of days after appellant spoke to Seibert, he came back to Seibert s office and again indicated he was going to have the complainant done away with or whacked. Appellant told Seibert that he was going to end up with the house and their son. At that point, Seibert took appellant seriously. And, when appellant asked Seibert if he knew anyone who could get the job done, Seibert told appellant he would call a man in California named Bo. Instead, Seibert called police officer, Jimmy Hobson, and told him about appellant s plan to have his wife killed. Both Seibert and Hobson testified that appellant commented about killing his wife by either [giving her an] overdose or blow[ing] her fucking head off. Hobson called homicide and spoke with Lieutenant Holt, who contacted Ken Vachris, an officer in the Homicide Division of the Houston Police Department. Vachris asked Hobson to arrange a meeting with Seibert, which Hobson set up the next day.

Sergeant Mayer, also an officer in the Homicide Division of the Houston Police Department, testified that he worked on this case as an undercover hit man. Mayer posed as the man named Bo from California. On October 30, 1998, Mayer met with appellant inside a Denny s restaurant. During the meeting, appellant gave Mayer a note containing a description of his house, where he works, directions, a photo of complainant, and a description of complainant and her vehicle.

Appellant and Mayer=s October 31, 1998 meeting took place at the same Denny=s restaurant where they originally met. The police obtained an arrest warrant for appellant. Mayer wore a recording device and other officers had a video camera, which operated without sound. Appellant did not show up for the meeting. Mayer called him from a pay phone in the Denny=s parking lot. Appellant said it was going to take him a little while to get there. The only recording device in use at that time was the one taped to Mayer=s body. Consequently, the recording of that phone call only contained Mayer=s voice. Appellant finally showed up for the final meeting shortly before 5:00 p.m. Mayer testified that appellant handed him a knife. Mayer placed it in his truck, and then he raised his hands to signal to the other officers to arrest appellant.

Appellant testified on his own behalf. He admitted that he and his wife were having trouble during the summer of 1998. Appellant testified that he s known Seibert since 1993, and that he has discussed his marital problems with Seibert. However, appellant stated that the complainant threatened to kill him. He contended that the complainant was abusive, dominating, and controlling. In fact, appellant testified that it was Seibert=s idea to kill appellant=s wife. Appellant, nevertheless, acknowledged that he did ask an undercover police officer to kill his wife, and admitted that during the tape-recorded conversation he sounded as though he really intended to have his wife killed. In addition, appellant conceded that if his wishes had been carried out, the complainant would be dead per the conversation he had with Bo.

Defective Indictment

In his first point of error, appellant contends the trial court erred when it allowed the State to amend its original indictment charging criminal solicitation for capital murder by adding the language for remuneration and the promise of remuneration, namely, money. Appellant argues this addition effectively charged him with a different offense in violation of Article 28.10(c) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989). We disagree.

The original indictment stated the following:

The duly organized Grand Jury of Harris County, Texas presents in the District Court of Harris County, Texas, that in Harris County, Texas, WILLIAM KEEN PERRY, hereafter styled the Defendant, heretofore on or about October 30, 1998, did then and there unlawfully, with the intent that a capital felony be committed, namely, capital murder, request, command, and attempt to induce H. L. Mayer to engage in specific conduct, namely, to cause the death of Joan Collin, that under the circumstances surrounding his conduct as the defendant believes them to be, would constitute the capital felony.

The trial court allowed the State to amend the indictment on May 5, 1999 to read as follows:

The duly organized Grand Jury of Harris County, Texas presents in the District Court of Harris County, Texas, that in Harris County, Texas, WILLIAM KEEN PERRY, hereafter styled the Defendant, heretofore on or about October 30, 1998, did then and there unlawfully with the intent that a capital felony be committed, namely capital murder, request, command, and attempt to induce H.L. Mayer to engage in specific conduct, namely to cause the death of Joan Collin, for remuneration and the promise of remuneration, namely, money, under the circumstances surrounding his conduct as the defendant believes them to be, would constitute the capital felony.

Upon appellant s written motion, a pretrial hearing was held. Appellant complained that although the formal charges appeared as solicitation of capital murder, the original indictment only charged solicitation of murder because the State omitted the element of remuneration or the promise of remuneration in the original indictment. Therefore, appellant reasons the State was limited to a solicitation of murder charge under the original indictment. Appellant argued that the addition of the remuneration element escalated his original charge from murder to capital murder in violation of his due process rights. The trial court overruled appellant s objections. Appellant now asserts the same arguments on appeal.

Article 28.10(c) provides that an indictment may not be amended over a defendant s objection as to form or substance, (1) if the amended indictment charges the defendant with an additional or different offense; or (2) if the substantial rights of the defendant are prejudiced. Tex. Code Crim. Proc. Ann. Art. 28.10(c). The Court of Criminal Appeals has held that an additional or different offense under Article 28.10(c) is defined as a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991) (per curium). In contrast, a change in an element of an offense changes the evidence required to prove that offense, but it is still the same offense. Id. at 728.

Additional or Different Offense

The original indictment tracks the elements of solicitation of murder as set forth in Penal Code section 15.03(a), including appellant s alleged mens rea.[1] It further identifies the ultimate offense intended, capital murder. The subsequent amendment only added the provision of the Penal Code on which the State would rely to establish that the murder solicited by appellant was capital murder.[2] The amended indictment, therefore, did not charge a different or additional statutory offense.

Substantial Rights

We further conclude the amendment did not prejudice appellant s substantial rights. Tex. Code Crim. Proc. Ann. Art. 28.10(c) (stating indictment may not be amended over the defendant s objection as to form or substance if the substantial rights of the defendant are prejudiced). The critical issue is whether appellant had adequate notice to prepare a defense. Byrumv. State, 762 S.W.2d 685, 691 (Tex. App.CHouston [14th Dist.] 1988, no pet.). First, the indictment was amended six months before trial commenced. Second, the original indictment was clear and gave appellant notice he was being charged with solicitation of capital murder. The amendment did not charge a new or different offense. Finally, appellant had the opportunity to object to the amended indictment and did so at the pretrial hearing. See Tex. Code Crim. Proc. Ann. Art. 28.10(c); Byrum, 762 S.W.2d at 691 (stating that whether a pretrial hearing was held is a factor in determining whether a defendant s substantial rights were prejudiced). Therefore, appellant s substantial rights were not prejudiced and his complaint is without merit. We overrule appellant=s first point of error.

Funding Expert Testimony

In his second point, appellant contends the trial court erred in refusing to appoint and fund a defense expert who would evaluate sentencing, a violation of his due process rights. Such payment is authorized in Texas Code of Criminal Procedure Article 26.05. Tex. Code Crim. Proc. Ann. Art. 26.05(a) (Vernon Supp. 2002). Article 26.05 provides that counsel appointed to represent a defendant in a criminal proceeding shall be reimbursed for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony, and paid a reasonable attorney s fee for services provided. Id. The appointment of an expert witness lies within the discretion of the trial court. Stoker v. State, 788 S.W.2d 1, 16 (Tex. Crim. App. 1989).

In Duckett v. State, the court explained that [e]xpert testimony, to be admissible, must pass the threshold test that it concerns a subject upon which the aid of an expert will be of assistance to the trier of fact. 797 S.W.2d 906, 911 (Tex. Crim. App. 1990). In regard to that threshold test, and in support of his proposition, appellant contends because the State has unlimited resources and the punishment portion of the trial is critical, it would be important for the jury to hear the type of evidence his expert could provide regarding appellant s evaluation and assessment. Appellant places considerable reliance upon the decision in Ake v. Oklahoma, in asserting his constitutional right to the appointment of such an expert. 470 U.S. 68 (1985). However, in Moore v. State, a well reasoned opinion, the Dallas Court of Appeals held the constitutional aspects of the Ake decision were limited to the context of an insanity defense, and recognized that in a case such as this, a trial court has discretion in determining whether to provide funds for expert testimony. 802 S.W.2d 367, 371 (Tex. App.CDallas 1990, pet. ref d).

It is established that an expert may testify at the punishment stage of the trial as to a particular defendant=s propensity to commit violence in the future. Moore v. State, 542 S.W.2d 664 (Tex. Crim. App. 1976), overruled on other grounds, Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992). However, appellant=s rationale that such testimony would level the playing field, is of no moment. Because the case involved solicitation of capital murder, the expert stated that he would have researched the offender pattern of people convicted of those types of offenses. However, at an ex parte hearing, appellant=s expert admitted that he had never met or interviewed appellant, and the results of his overall assessment could go either way. Such unsupported and inconclusive defensive theories and recommendations, concerning a particular punishment, have been consistently rejected by the Court of Criminal Appeals. See Rey v. State, 897 S.W.2d 333, 341 (Tex. Crim. App. 1995); see also Stoker v. State, 788 S.W.2d 1, 16 (Tex. Crim. App. 1989) (holding it was not an abuse of discretion to refuse to appoint expert to place issue of parole before jury); Sattiewhitev. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989) (stating that it was not error to exclude expert opinion that a life sentence would be more appropriate than the death penalty); Schulz v. State, 446 S.W.2d 872, 874 (Tex. Crim. App. 1969) (affirming trial court s ruling that psychiatrist was not permitted to testify regarding the effect of placing defendant on probation rather than sentencing him to prison). We cannot say the trial court abused its discretion in refusing to appoint and fund a defense expert. Appellant s second point of error is overruled.

Tape Recordings

In his third point of error, appellant complains of the admission of a tape recording that contained only the voice of Sergeant Mayer. At trial, appellant objected to the admissibility of the recording because, although it was allegedly of a conversation Mayer had with appellant, it was one-sided and did not have appellant s voice on it at all. On appeal, however, appellant argues that the admission of the recording was unfair and prejudicial under Rule of Evidence 107. Tex. R. Evid. 107.[3]

It is well established that a point of error on appeal must correspond to the precise objection made in the trial court. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982); Williams v. State, 549 S.W.2d 183, 187 (Tex. Crim. App. 1977). Here, appellant s complaint on appeal that the one-sided tape recording was unfair and prejudicial under Rule of Evidence 107 does not sufficiently correspond to his blanket admissibility objection at trial. Therefore, appellant has not preserved this issue for appeal.

Furthermore, as the State correctly notes, appellant failed to object to Mayer s testimony regarding the content of the statements made on the tape. Mayer s testimony at trial regarding the tape recording included references to the same information that was contained on the tape recording. In Anderson v. State, the rule regarding such cumulative evidence was stated as follows: Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove. 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). Therefore, any conceivable error was cured by Mayer s unchallenged testimony regarding the contents of the statements recorded on the tape. Appellant s third point of error is overruled.

Accordingly, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed September 12, 2002.

Panel consists of Justices Anderson, Hudson, and Seymore.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Section 15.03(a) Criminal Solicitation provides, in part:

(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.

[2] Section 19.03(a)(3), Capital Murder, provides, in part, a person commits an offense if he commits murder and :

(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.

[3] Texas Rule of Evidence 107, the rule of optional completeness, states:

When part of an act, declaration, conversation, writing or the 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, as when a letter is read, all letters on the same subject between the same parties may be given.