Williams, Melvin v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed June 30, 2005

Affirmed and Memorandum Opinion filed June 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01230-CR

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 MELVIN WILLIAMS, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

 Harris County, Texas

Trial Court Cause No. 962,081

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

Appellant, Melvin Williams, was convicted of sexual assault. In a single issue, appellant asserts that the trial court abused its discretion by excluding relevant defense testimony. We affirm.

Appellant is a high school teacher who taught math to the victim, L.W., a twenty-one-year-old special education student whose mental functioning is similar to that of a child between eight and eleven years old. The State put on evidence that appellant took L.W. to the Rockets Motel where he rented a room and sexually assaulted her. A jury found appellant guilty and sentenced him to eight years= confinement in the Texas Department of Criminal Justice and assessed a $10,000 fine.

In one issue, appellant contends that the trial court erred by excluding the testimony of a private investigator. At trial, the State introduced three guest registration forms from the Rockets Motel dated October 15, 2002, November 26, 2002, and December 20, 2002, which showed appellant=s name and personal information. Hasmuka Bhatka, the owner and operator of the Rockets Motel, did not remember filling out the forms, but they were in his handwriting. Bhatka testified that he knew it was appellant who had rented the room because A[w]e check I.D. and we check pictures@ when filling out the registration forms. Later, when asked if he had checked the I.D. when he filled out the registration forms and whether the I.D. picture matched the registering guest, Bhatka said, Ayes.@

At trial, appellant called private investigator Cornelius Barnes and tried to introduce testimony to impeach Bhatka=s testimony that Rockets Motel employees match each motel guest=s identity with a photo I.D. upon check-in. The court sustained the State=s objection to the testimony[1] and recognized for the record that Barnes would have testified that when he rented a room at the Rockets Motel, the clerk, who was not Bhatka, did not verify whether Barnes was the person pictured on the I.D. card.

Appellant argues that the trial court should not have excluded Barnes=s testimony because it was relevant to show Rockets Motel clerks did not always follow a policy of checking identification and matching the photograph to the registering guest while filling out the registration forms. Appellant maintains that this evidence would have supported his defense that someone stole his driver=s license and used it at the motel. Appellant further maintains Barnes=s testimony was vital to his defense and that the exclusion amounted to constitutional error, or, alternatively, harmful error that substantially violated his rights.

An appellate court reviews a trial court=s ruling on the admissibility of evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An abuse of discretion is found only when a trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003).

Evidence is admissible if it has any tendency to make a fact consequential to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. Relevance decisions should largely be left up to the trial court=s discretion and should not be overturned as long as they are within the realm of reasonable disagreement. King v. State, 17 S.W.3d 7, 20 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To be relevant, evidence must be both material and probative. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). Materiality is established when evidence addresses proof of a material proposition, that is, any fact that is of consequence to the determination of the action. Id. To be probative, the proffered evidence must tend to make the existence of the fact more or less probable than it would be without the evidence. Id. Therefore, in determining whether Barnes=s testimony was relevant, we must first determine whether it addresses a fact that is of consequence to the action.

Appellant testified that he never went to the Rockets Motel and that someone else must have used his driver=s license when checking in there. Thus, any evidence that someone other than appellant may have checked into the motel using appellant=s I.D. is material. However, a different clerk=s failure to check Barnes=s I.D. is not evidence supporting or refuting a fact that is of consequence. This testimony does not address the motel=s policy concerning checking I.D.=s or whether Bhatka would have allowed someone else to rent the room using appellant=s I.D. because it is reasonable to conclude Bhatka was testifying to his own habits and to what the clerks are supposed to do. Barnes=s experience at the motel merely goes to the unrelated side issue of how faithful other clerks are to the implementation of the motel policy.

Even if Barnes=s testimony were material, it is also not probative of whether appellant rented a room at the Rockets Motel. Miller explains probativeness as a test of logic or common sense as to whether evidence makes a material issue more or less likely. Miller, 36 S.W.3d at 507. It does not logically follow that because one clerk failed to check Barnes=s I.D., Bhatka similarly failed to check appellant=s identification.

We find that it was reasonable for the trial court to have concluded that Barnes=s testimony was irrelevant.[2] Accordingly, the trial court did not abuse its discretion in excluding it.

Finally, even if the trial court erred in excluding Barnes=s testimony, any such error is harmless. Rule 44.2(b) provides A[a]ny [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.@ Tex. R. App. P. 44.2(b). Appellate courts will not overturn a conviction for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or influenced the jury only slightly.[3] Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).

Appellant claims that the State could not have made its case without Bhatka=s testimony and that the case hinged on Bhatka=s credibility. However, the State admitted to the jury Bhatka=s credibility was questionable, noting he was not an upstanding businessman and his motel was of questionable character. Rather than resting on Bhatka=s credibility, most of the State=s argument dealt with L.W.=s lack of ability due to her mental capacity to frame appellant, as well as L.W.=s lack of motivation to fake a sexual assault. Thus, even without believing that Bhatka checked appellant=s I.D., the jury could have found appellant=s claim that he was not there and did not commit the crime to lack validity.

Considering the record as a whole, the exclusion of Barnes=s testimony influenced the jury little if any because the registration forms and Bhatka=s testimony were only a small part of the State=s case and there was other evidence available to question the validity of the registration forms. Thus, the exclusion of Barnes=s testimony, if error, was harmless.

Appellant=s sole issue is overruled, and the trial court=s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 30, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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

[1] The State objected based on Texas Rule of Evidence 608(b), which prohibits inquiry into specific instances of conduct of a witness to either attack or support a witness=s credibility. Tex. R. Evid. 608(b). The State also argued that the evidence was not relevant. Because we conclude that the record supports a finding that the excluded testimony was irrelevant, we need not decide whether the trial court was correct in sustaining the State=s Rule 608(b) objection.

[2] Appellant also argues that Bhatka Aopened the door@ to Barnes=s testimony by using the word Awe@ when referring to the motel=s policy of checking identification. However, because Barnes=s testimony was irrelevant, it does not matter that Bhatka may have opened the door to impeachment evidence. In Jensen v. State, 66 S.W.3d 528, 539 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d), this court explained that opening the door to testimony does not in and of itself make the testimony admissible; it must also be relevant to a fact of consequence in the case. Since, as indicated above, Barnes=s testimony is irrelevant, it was proper to exclude it.

[3] Appellant claims that because the testimony was so vital to his defense the exclusion amounted to constitutional error because it significantly undermined elements of his defense and effectively precluded him from presenting a defense. Erroneously excluded evidence will only be constitutional error if the evidence is so vital to the defendant=s case that the exclusion significantly undermines fundamental elements of the accused=s defense. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (holding that erroneous exclusion of self-defense testimony did not constitute constitutional error because defendant was not prevented from presenting the substance of his defense to the jury). However, other evidence was admitted at trial that supported appellant=s defense. For example, other evidence admitted at trial allowed defense counsel to argue at closing that appellant had never been to the Rockets Motel; someone must have stolen his license and used it to forge an identification card; L.W. knew how to do that because she learned to make business cards in her computer class; Bhatka would probably take any identification handed to him because he only cared about getting the eleven-dollar-per-hour room payment; and appellant could not have been in Houston at the time indicated by the December 20, 2002 registration card and if one card is wrong, none can be believed. Because the substance of appellant=s defense was presented to the jury, error, if any, in excluding Barnes=s testimony was not constitutional error.