Jeffrey Lynn Wilson v. The State of Texas--Appeal from 371st District Court of Tarrant County

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-04-227-CR

JEFFREY LYNN WILSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Jeffrey Lynn Wilson, following a conviction by a jury for aggravated robbery with a deadly weapon, complains in two points that (1) the trial court allowed backdoor hearsay of such a nature that was harmful to Wilson and (2) the trial court improperly instructed the jury on the definition of beyond a reasonable doubt.

II. Background

The manager of Fazoli s restaurant, located in the 4600 block of Little Road in Arlington Texas, was robbed around 10 p.m. on January 9, 2002 as the restaurant was closing. According to witnesses, the robbers were a white man and a black man wearing masks and carrying pistols. After the restaurant employees were told to lie face down on the floor, the manager was told to get up and open the safe that contained four to five hundred dollars. After the white man said [p]luck them all, the store manager, Johnny Landin, recovered a deposit that was ready to go the bank and gave more than three thousand dollars to the white man, who also took a wristwatch out of the safe. The robbers then left, and Landin hit the panic alarm.

Subsequently, Detective John T. Stanton of the Arlington Police Department, received information that caused him to prepare a photo spread which included Wilson. He showed it to Fazoli s employee, Jesse Wise, who identified Wilson as a black man who was in Fazoli s bathroom prior to the robbery. Wise stated that Wilson was not wearing a mask prior to the robbery. Confronted by this information, Wilson confessed to being involved in the offense, but claimed that he served only as a lookout.

Wilson was indicted for aggravated robbery with a deadly weapon; the indictment contained a habitual offender s notice to which notice Wilson subsequently pled true. Wilson entered a plea of not guilty, and a jury found Wilson guilty of aggravated robbery with a deadly weapon. The court assessed punishment at thirty-five years confinement.

III. Backdoor Hearsay

In his first point, Wilson asserts that the trial court, over proper objection, allowed Detective Stanton to recount to the jury that Wilson s statement concerning his role as a mere lookout did not match any other statements from any other witnesses. Wilson contends the objected to testimony amounted to harmful, erroneous backdoor hearsay as to those other statements.

During the guilt/innocence stage of the trial, Detective Stanton testified concerning a statement given by Wilson, part of which indicated that he was only a lookout during the robbery. Detective Stanton was asked if any of the other witnesses in the case gave him a version of the events along those lines. Following a hearsay objection, the prosecutor was instructed to rephrase the question. The prosecutor then asked: Have you heard this version of [Wilson s] just being the lookout from anyone other than [Wilson]? Following another hearsay objection, the court overruled the objection and Detective Stanton testified that, [t]hat was the first version I d heard quite like that. Because there were six total employees in the restaurant at the time of the robbery, not all of whom testified at trial, Wilson asserts that this allowed the detective to testify what other individuals told him about the role Wilson played in the robbery, and was therefore hearsay.

Turning to the Texas Rules of Evidence, hearsay for the purpose of this case is defined as an oral or written verbal expression, other than one made by Detective Stanton while testifying, offered into evidence to prove the truth of the assertion that Wilson was not a mere lookout during the robbery. Tex. R. Evid. 801(a), (d). Such statements are, of course, inadmissible absent an exception to the hearsay rule. Tex. R. Evid. 802. Sometimes when hearsay is not allowed entry in the front door of the courtroom, a rear door entry is attempted. Backdoor hearsay is testimony which infers or indirectly details to the jury what someone else said without repeating the words directly. For example, in Schaffer v. State, Schaffer claimed to have been acting as a police informer for an officer named Jimmy Seals. 777 S.W.2d 111, 113-14 (Tex. Crim. App. 1989). A narcotics officer had spoken to Jimmy Seals about Schaffer s testimony and, upon questioning, indicated that he would not ask the State to drop the charges against Schaffer based on his conversation with Seals. Id. In response to a hearsay objection, the State argued that no statement made by Seals had been received into evidence and therefore, there was no hearsay problem. The Court of Criminal Appeals disagreed, concluding that the State was, in essence, attempting to do indirectly what it could not do directly. Id. at 113-14. The court stated:

[W]here there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. In short, statement as defined in [Rule 801(a)] necessarily includes proof of the statement whether the proof is direct or indirect.

Id. at 114. The court then went on to find that the sole intent of the narcotics investigator s testimony was to convey to the jury what Seals had told him, that is, Schaffer was not an informant, and the investigator s answer was hearsay although he did not directly quote Seals out-of-court statement. Id.

Here, the State attempts to argue that the testimony concerning Detective Stanton s conversations with other witnesses did not lead to an inescapable conclusion about the substance of those statements. That dog won t hunt.2 The testimony of Detective Stanton is clearly synonymous with testimony that statements of the other witnesses to the robbery were that Wilson was not a mere lookout, but was in fact a participant, as in fact those other witnesses who were called to testify, did so testify. We hold that the statement was indirect hearsay and was erroneously admitted into evidence.

IV. Harm Analysis

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. If the error is constitutional, we apply Rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant s conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply Rule 44.2(b) and disregard the error if it does not affect the appellant s substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh g), cert. denied, 526 U.S. 1070 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex. App. Fort Worth 1998, pet. ref d).

The admission of inadmissible hearsay is considered non-constitutional error,3 and not reversible unless it affected appellant s substantial rights. Armstead v. State, 977 S.W.2d 791, 798 (Tex. App. Fort Worth 1998, pet. ref d). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d at 643. In making this determination, we review the record as a whole. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

We consider other evidence in the case concerning Wilson s role in the robbery. Evidence of Wilson s guilt is a factor to be considered in our harm analysis. See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). The record established that there were only two individuals involved in the robbery, a black man and a white man. Wilson admitted that he was the black man involved but claimed he was only a lookout. However, employee Cory Pope testified that he witnessed a black man pointing a gun at the back of an employee, James Holloway, and at one point he kicked Pope on the foot and spoke to him. Wise saw a black man and a white man in the restroom about closing time and testified that both of these men robbed the manager of the restaurant and that the black man ordered the manager to lie face down on the floor. Holloway testified that a black man held a gun to his back and told him to get down on the floor and believed he heard the white man tell the black man to kill the witnesses. Further, Landin told the jury that a black man and a white man came toward him waiving guns, and the black man told Landin and the other employees to lie face down on the floor and later took Landin to the office.

Considering the foregoing, we cannot say that the erroneously admitted hearsay had a substantial and injurious effect or influence in determining the jury s verdict and or that it affected Wilson s substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the error. See Tex. R. App. P. 44.2(b). Therefore, Wilson s first point is overruled.

Wilson also complains that Detective Stanton was asked if he developed Wilson as a suspect in the robbery after having spoken to Clifford Aurich and Megan Henson, to which question he answered [y]es, I did. However, this question and response were not objected to and as such, any complaint on appeal is forfeited. See Tex. R. App. P. 33.1(a).

V. Definition of Beyond a Reasonable Doubt

Wilson objects that the following sentence was included in the jury charge: It is not required that the prosecution prove guilt beyond all possible reasonable doubt; it is required that the prosecution s proof excludes all doubt concerning the Defendant s guilt. Wilson did not object to this portion of the charge.

This court has been down this road before and ruled that the instruction in question is not improper. See Best v. State, 118 S.W.3d 857, 865 (Tex. App. Fort Worth 2003, no pet.); Vosberg v. State, 80 S.W.3d 320, 323-34 (Tex. App. Fort Worth 2002, pet. ref d). Wilson suggests that our previous analysis was error and asks us to revisit our path. We respectfully decline to do so and note that the Texas Court of Criminal Appeals respectfully held that the inclusion of this language does not amount to an abuse of discretion by the trial court. See Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004). Wilson s second point is overruled.

VI. Conclusion

Having overruled Wilson s two points, we affirm the judgment of the trial court.

BOB MCCOY

JUSTICE

PANEL A: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 2, 2005

NOTES

1. See Tex. R. App. P. 47.4.

2. Estate of Hudgins v.C.I.R., 57 F.3d 1393, 1403 (5th Cir. 1995).

3. Although the erroneous admission of hearsay evidence can implicate the confrontation clause of the Sixth Amendment, see Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2837 (2004), Wilson did not object on confrontation clause grounds at trial. Therefore, we will analyze harm using Rule 44.2(b). Tex. R. App. P. 44.2(b).