Lofland, Eric David v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed October 30, 2003

Affirmed and Memorandum Opinion filed October 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01092-CR

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ERIC DAVID LOFLAND, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 883,805

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M E M O R A N D U M O P I N I O N

Eric David Lofland appeals a conviction for capital murder[1] on several grounds. We affirm.

 

Accomplice Witness Testimony

Appellant s first point of error argues that the State s case is based entirely upon the testimony of accomplice witnesses, John Downing and Alvin Johnson, which is not corroborated by other evidence tending to connect appellant to the charged offense.

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon1979). However, to satisfy the corroboration requirement, the non-accomplice evidence need not be sufficient, in itself, to support a conviction. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

In this case, the record contains the following non-accomplice evidence. George Kitchell testified that: (1) before the offense, appellant and several others gathered around Tate Robinson while he was describing the plan to jack the victims; (2) after Robinson got off the phone with one of the victims and said Let s go, six of the group, including appellant, decided that Johnson would drive appellant s truck and left; (3) two people rode in each of three separate cars; and (4) appellant looked like he wanted to participate in the robbery.[2] Daniel Romanowski, a bystander at the crime scene, testified to hearing six gunshots and seeing a white arm, holding a rifle, protruding from the passenger side of a blue truck. He also saw fire coming out of the rifle. Deputy Gary Wilson, a Harris County Sheriff s Department patrol officer, testified that he found ten rifle shell casings in the parking lot where the shooting occurred. Salvador Ruelas, one of the victims, testified that: he had made over thirty drug deals with Robinson; he had set up such a drug deal for the night the murder occurred; and, of the three cars that pulled into the parking lot as part of the purported drug transaction, one was a little blue truck with two white people inside.[3] Harris County Sheriff s Deputy Joseph O Leary testified that Daniel Garza, the victim who later died, had stated that the people who shot him had been in a blue low-rider Ford. Finally, appellant was arrested driving a blue Ford pickup.

Because this non-accomplice evidence shows that: (1) appellant was in the group who went with Robinson to jack the victims; (2) appellant agreed to let Johnson drive his truck; (3) a white passenger in a blue Ford truck fired a rifle at the victim who eventually died; and (4) appellant was arrested in a blue Ford truck, it tends to connect appellant with the offense. Therefore, appellant s first point of error is overruled.

Charge on Defense of a Third Person

Appellant s second point of error contends that the trial court erred by denying his requested jury charge instruction on the right to use deadly force to defend a third person.

A defendant is entitled to an instruction on a defensive issue where: (1) he timely requests an instruction on that specific theory; and (2) the evidence raises the issue. Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003). A person is justified in using deadly force against another to protect a third person if, among other things, the actor reasonably believes that his intervention is immediately necessary to protect the third person from unlawful deadly force. Tex. Pen. Code Ann. 9.33 (Vernon 2003). In this case, appellant argues that the instruction on defense of a third person was raised by evidence that all three victims were armed with loaded guns; Robinson got into the victims car and then ran from it; and after the shooting, Robinson told Johnson that the victims had pulled a gun on him.

However, by the time appellant began firing his gun, none of the evidence suggests that it was necessary to protect Robinson as he had already safely returned to his vehicle, the victims were attempting to leave the parking lot, and none of the victims were either aiming or shooting guns at Robinson. Because the evidence did not, therefore, raise the issue, the trial court did not err in refusing to instruct the jury on defense of a third party, and appellant s second point of error is overruled.

Comment on Failure to Testify

Appellant s third point of error argues that the trial court erred by denying his motion for mistrial after the prosecutor allegedly commented during jury argument on appellant s failure to testify:

[Y]ou can look at the four corners of this entire charge; and you will not see anything in reference to self-defense. You will not. What does that mean? It means that there has not been any evidence presented to you in reference to self-defense.

(emphasis added). The trial court sustained appellant s objection to this comment and instructed the jury to disregard it, but denied appellant s motion for mistrial.

Prosecutorial comment that refers to an accused s failure to testify violates his constitutional and statutory privileges against self-incrimination. See Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 19, 2003) (No. 03-6044); Tex.Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). However, the comment must clearly refer to the accused s failure to testify, and it is not sufficient if it might be construed as an implied or indirect allusion. Canales, 98 S.W.3d at 695. The test is whether the language used was manifestly intended, or was of such a character that the jury would necessarily and naturally take it, as a comment on the accused s failure to testify. Id. A prosecutor may comment on the defendant s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000).

In addition, in all but the most blatant examples, an instruction by the trial court to disregard a comment on the failure of the accused to testify will cure the prejudicial effect. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999). The denial of a request for mistrial is reviewed for abuse of discretion. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).

In this case, appellant contends that the prosecutor s remark was a comment on his failure to testify because it called the jury s attention to the absence of evidence that only his testimony could supply. However, under the facts of this case, there were several participants in, and bystanders to, the events in question. Therefore, if self-defense evidence existed, appellant has not shown why it could not have come from witnesses other than appellant, such that it was evidence only his testimony could supply. Moreover, even if the prosecutor s statement had been a comment on appellant s failure to testify, it was not so inflammatory that the trial court s instruction to disregard could not have removed any prejudicial effect.[4] Accordingly, the trial court did not abuse its discretion in denying appellant s request for a mistrial, and appellant s third point of error is overruled.

Argument Outside the Record

Appellant s fourth and fifth points of error argue that the trial court erred by denying his motions for mistrial based on each of the following (separate) portions of the prosecutor s closing argument being outside the record:

And you might wonder why they didn t try and get the dope, why they didn t try to get the money [out of the victim s vehicle after it went into the ditch]? That s because it s a busy roadway.

You know if they [the victims] would have fired, there would have been shell casings. You know when they recovered the [victim s] gun out of the ditch that night, with all the con where the contents of the vehicle dumped over, the gun was cold. Deputy Garvey stated he didn t feel that it was fired.

(emphases added). For each statement, the trial court sustained appellant s objection but denied his request for an instruction to disregard and for a mistrial.

Proper jury argument includes: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answering the opposing counsel s argument; and (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Even when an argument exceeds these permissible bounds, it will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id.

Regarding the first statement, above, appellant objected on the ground that there was no evidence it was a busy roadway. However, Johnson had testified that the road along which the victims vehicle had gone into a ditch was a busy roadway and that there was an entrance ramp to the freeway nearby. Deputy Wilson similarly testified that the parking lot in which the shooting occurred was located in a Y intersection between West Little York and Highway 290, at an overpass. Because the record thus contains evidence supporting the statement that it was a busy roadway, the first comment was not outside the record.

As to the second statement, appellant s objection (to the last sentence) was that They didn t say - he said the gun was cold. Although this statement was correct regarding what Garvey had said, the record contains no direct evidence that a victim s gun was ever fired but does contain evidence that: (1) no shell casings from a victim s gun were ever found in the parking lot where the shooting occurred or the area around where the victims vehicle went into the ditch; and (2) the victim s gun that was found (cold) was still fully loaded with live ammunition. Therefore, the second statement was outside the record only in being attributed to Garvey. Under the circumstances, a discrepancy of such small magnitude, and for which an objection had been sustained, did not warrant a mistrial. Accordingly, appellant s fourth and fifth points of error are overruled.

Comment on Weight of the Evidence

Appellant s sixth issue contends that the trial judge commented on the weight of the evidence by sustaining the State s objection to appellant s closing argument, challenging the credibility of co-defendant Alvin Johnson because he had made a deal to enter a guilty plea and had something to gain by testifying for the State in order to receive more favorable sentencing. The State objected to this argument on the ground that there was no deal between Johnson and the State for him to testify, i.e., the argument was outside the record, and the trial court sustained the objection without comment or elaboration. Because appellant s brief does not contend that, or cite to any portion of the record where, evidence of any such deal was admitted, and because appellant cites no authority holding that sustaining a valid objection to an argument, without more, can amount to a comment on the weight of the evidence, this point of error affords no basis for relief and is overruled.

Instruction on Voluntary Intoxication

Appellant s seventh issue complains that the trial court s jury instruction, over his objection, that voluntary intoxication did not constitute a defense to the commission of a crime,[5] was not raised by the evidence and was a comment on the weight of the evidence,[6] suggesting that he was intoxicated and thus more likely to commit the offense.

With regard to the first contention, that the instruction was not raised by the evidence, an instruction on voluntary intoxication is appropriate if there is any evidence from any source that might lead a jury to conclude that the defendant s intoxication excused his actions. Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994). Therefore, such an instruction is appropriate whenever the evidence raises an issue whether the accused was voluntarily intoxicated at the time he committed the offense. Id at 159 (Clinton, J., concurring). In this case, the evidence shows that appellant was drinking beer before the commission of the crime, and that most of the people who were then with him were also doing so, smoking marijuana, or both. This evidence raised an issue of appellant s possible voluntary intoxication.

As to the second contention, that the instruction was a comment on the weight of the evidence, appellant relies on Matamoros,[7] which recognized that even a seemingly neutral instruction about a particular type of evidence may constitute an impermissible comment on the weight of the evidence because it singles out the piece of evidence for special attention. However, Atkinson[8] clarified that a jury instruction that identifies evidence requiring special jury consideration under the law, and that sets out the law governing such consideration, does not violate the prohibition against judicial comment, so long as it does not intimate that the jury should resolve any fact question in a certain way or that any of the evidence bearing upon such a fact question should be given greater weight or credibility than other evidence bearing on the same question.

Because the voluntary intoxication instruction in this case was raised by the evidence, identified evidence requiring special jury consideration under the law, set out the law governing such consideration, and did not intimate that any fact issue should be resolved in any certain way or that any evidence be given any greater weight or credibility, it was not a comment on the weight of the evidence. Accordingly, appellant s seventh point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed October 30, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury convicted appellant of capital murder, and the trial court assessed punishment at life imprisonment.

[2] Kitchell was not an accomplice to the offense because, although he was present when Robinson discussed his plan, Kitchell stayed behind when the others left and did not participate in the offense. See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003) (noting that a person is an accomplice if he participates before, during, or after the commission of a crime and can be prosecuted for the same offense as the defendant or a lesser-included offense).

[3] The order delivering appellant to the Department of Criminal Justice reflects appellant s race as W, which would have been apparent to the jury from viewing him in the courtroom during trial.

[4] SeeFuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999).

[5] See Tex. Pen. Code Ann. 8.04(a) (Vernon 2003).

[6] See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003) (prohibiting trial court, in delivering charge to jury, from expressing any opinion as to the weight of the evidence, summing up the testimony, discussing the facts, or using any argument in the charge calculated to arouse the sympathy or excite the passions of the jury); id. art. 38.05 (Vernon 1979) (prohibiting trial court, at any stage before a return of the verdict, from making any remark calculated to convey to the jury its opinion of the case); Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986) (stating that a charge that assumes the truth of a controverted issue is an erroneous comment on the weight of the evidence).

[7] See Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995).

[8] See Atkinson v. State, 923 S.W.2d 21, 25 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).