MARIA RAQUEL RIVAS v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

NUMBERS 13-05-601-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

MARIA RAQUEL RIVAS, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas

MEMORANDUM OPINION

 
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Maria Raquel Rivas, was charged by indictment with the offense of capital murder with a repeat felony offender enhancement. See Tex. Pen. Code Ann. 12.42(c)(1) (Vernon Supp. 2006), 19.02(b)(1) (Vernon 2003), 19.03(a)(2) (Vernon Supp. 2006). Appellant pled not guilty and was convicted after a trial to a jury. She was sentenced to life imprisonment. Appellant subsequently filed a motion for new trial, which was denied by the trial court. Appellant now raises seven issues on appeal. We overrule the issues and affirm the judgment of the trial court.

I. Factual and Procedural Background

On March 20, 2004, Corpus Christi Police Officer Billy Browning was called out to investigate an accident. At the scene of the accident, Browning found a vehicle that had run into a telephone pole on the side of the road. In the vehicle, Browning discovered Tim Haynes' bloody body slumped over in the vehicle. (1) Haynes was not breathing. Browning was unable to get to Haynes because the doors were locked; however, paramedics broke the glass on the passenger's side of the vehicle to get to Haynes. The paramedics discovered a puncture wound in Haynes' chest as they performed CPR. Haynes was taken to a hospital where he was pronounced dead.

Lieutenant Rocky Vipond and Detective Curtis Abbot searched Haynes' truck and found a "still cool," partially-full beer can, a pack of Swisser Sweets cigars (which was missing one cigar), and a pornographic DVD. Lieutenant Vipond searched the area where the truck was found and, about 300-350 feet from the truck, he saw a beer laying on the grass. The beer was the same brand of beer as the one found in Haynes' truck. When Vipond went to look at the beer, he discovered blood on the street and curb and on the grass leading up to appellant's apartment. Vipond noticed that appellant's front porch looked like it had just been washed. Vipond, accompanied by other officers, knocked on the door, but did not immediately get a response. When they did get a response, appellant opened the door, but did not let them in. Appellant stated that she knew her rights and her attorney told her that if police ever showed up, they would need a warrant to get in. While appellant was talking to the officers, Vipond heard a "thumping" sound. Vipond looked around and noticed a window screen lying in the bushes and then spotted a man running across the street and through a yard. The man was not located. (2)

After securing a warrant, the officers searched appellant's apartment. They found a bucket that smelled like Clorox. Officers also discovered that candle wax and fingernail polish had been dripped over blood spots on the carpet and on a mattress. Officers discovered a candle, red nail polish and a half-smoked Swisser Sweets cigar in one of the bedrooms. Appellant, Janice Ruiz, and Lynette Maxwell were arrested for tampering with evidence. Appellant cooperated with the arresting officers. She led them to some bloody clothes and a knife that had been disposed of in the rear trash can of her house and in her mother's trash bin. Officers found tan pants, a mattress cover, a white sheet, a door mat, a plastic bag, a white lamp, table lamp, a towel, and a bandana in the trash cans.

A partial DNA match was found on the knife matching Haynes' blood. Haynes' DNA was also found on a pair of shorts, a jersey, the white curtain in the trash can, a gauze from the grass area, on the mattress and mattress cover from a rear bedroom, a living room cushion, on the tan pants, and on the bandana. A partial DNA match was also found on a kitchen knife retrieved from the trash can. A sample from the inside of Haynes' shirt revealed a match for appellant and Leonard Haskins.

Officer Revis interviewed appellant at the police station. The interview was videotaped. The videotape of the interview was admitted into evidence at trial without objection. In the interview, appellant stated that on the night in question, while she was out walking around midnight, Haynes approached her and her two friends, Janice and Lynette, and offered them a ride. Haynes allegedly told the women that he "wanted a date." Appellant explained this meant Haynes wanted "to have sex," wanted "everything" and they were "going to do it." When they got to appellant's apartment, they went to the back bedroom. Haynes took his pants off and all three girls went into the room. However, appellant left the room to go talk to her boyfriend, Leonard Haskins, and Robert Clay. Appellant stated that the next thing she knew, Haskins was wrestling with Haynes. Haynes was trying to take a knife away from Haskins, but was unable to. During the fight, appellant saw Haskins stab Haynes, and saw Haskins and Clay continue to beat him up after he was stabbed. Appellant heard Haynes state, "I'm dying" as he left the apartment. After Haynes left the apartment, Haskins showed appellant some money he had taken from Haynes. Appellant admitted to cleaning up afterwards because she was scared. Haskins took his bloody clothes off and Janice hid them in a trash can across the street. Appellant denied knowing what became of the knife.

A medical examiner testified that Haynes died of a stab wound to the chest. The knife penetrated two and a half inches into the chest, went through part of the fifth rib and went into the heart, such that the victim had no more than thirty minutes before bleeding to death.

Lynette Maxwell testified she was living with appellant and Haskins at the time of the murder. She testified that appellant's mother had dropped her, appellant, and Janice off at a store to buy things. On their way home, appellant approached Haynes and started talking with him, possibly asking for a ride home. They accepted a ride from Haynes. On the way to appellant's apartment, appellant gave Haynes oral sex. When they got to appellant's apartment, appellant and Haynes went into Maxwell's room (at the back of the apartment). Maxwell assumed appellant was going to get money in exchange for sex. Maxwell testified she went to the living room and Janice was in the kitchen. Maxwell then went to the restroom and, on her way out, noticed Haskins and Clay in her room and appellant in her own room. Maxwell saw Haskins stab Haynes and heard appellant asking for a knife. She heard Haynes state, "I think I'm dying" and saw him walk out the door. After Haynes was stabbed, appellant and Haskins were laughing. Maxwell testified that Haskins mopped the porch with Clorox, while she and Janice cleaned the room where the stabbing occurred. Appellant did not clean any of the blood from the apartment.

Janice Ruiz testified that, on the night in question, appellant's mother drove them to the store to buy lottery tickets. She testified that appellant and Maxwell went over to Haynes' truck to get a ride home for them. On the way home, appellant "did a date" with Haynes and gave him oral sex. When they got back to appellant's apartment, appellant and Maxwell went to Maxwell's room because Maxwell was "going to do a date" with Haynes. Appellant walked out of the room with money in her hand. Maxwell remained in the room. Appellant walked into the room where Haskins and Clay were, then Haskins went into the room where Haynes was and started fighting with him. Haskins asked for a knife and Maxwell ran into the kitchen to get one. She heard Haynes yelling, asking for them to let him go because he was dying. She heard one of the men say, "get the keys" and "he's got more money . . . get his wallet." Haynes responded, "You already got all my money, let me go." Ruiz assumed they let Haynes go because things got quiet. Ruiz testified that they went to appellant's mother's house for dope. After smoking crack, they started cleaning. Maxwell used candle wax and nail polish and Haskins cleaned the front porch, but appellant did not clean. Haskins gave her his bloody clothes to throw away. Ruiz testified Haskins "ran out the window" when police arrived.

Robert Clay testified that on the day of the incident, he went to the apartment where appellant and her boyfriend, Leonard Haskins, lived. He testified he went over at about five or six in the afternoon to buy crack from Haskins. He testified that appellant and two other women went to the store to cash in some lottery tickets. About thirty minutes later, the women returned with Haynes. While watching television in appellant and Haskins' bedroom, appellant came to get Haskins and handed him what appeared to be money. Clay then exited the bedroom and headed to the restroom. He observed Haynes sitting on the bed in the back bedroom with his pants down. Clay heard Haskins arguing with Haynes and heard Haskins ask Haynes what he was doing in his "fucking" house. Haynes responded that he was invited back for sex. Haskins told Haynes to get out of his house at which time Haynes pulled his pants back up. Clay turned around to go out the front door when he heard appellant yell and then he heard a commotion "like something was breaking." Appellant told Clay to come back and help. However, even before the argument between Haskins and Haynes began, appellant handed Haskins a knife and tried giving one to Clay too, but he refused. Clay testified that when Haynes was confronted with the knives, Haynes said he wanted to "get out of here," that he "didn't have nothing," and that he did not have any more money. Haskins responded, "Fuck that, I know you're lying. You've got some more money." Appellant then told Haskins to get Haynes' keys from him. Appellant asked Haynes where his keys were, but Haynes said he could not find them. Clay testified that he left the room, but when he returned to break up the argument, Haynes and Haskins were "tussling" on the floor. Clay got between them and then noticed the blood on Haynes' shirt. Haskins then changed his clothes and handed them to appellant and also handed the knife to appellant and told her to wash the blood off. Appellant placed the knife in the sink. Appellant and the other girls tried cleaning up. Clay, appellant, and Haskins then went across the street to appellant's mother's house. While they were there, appellant called for drugs to be delivered and then upon delivery, proceeded to smoke crack. About twenty minutes later, they returned to the apartment and continued their clean-up efforts.

Appellant was subsequently charged and convicted of capital murder with a repeat felony offender enhancement. She filed a motion for new trial, which the trial court denied. This appeal ensued.

II. Legal Sufficiency

By her first issue, appellant challenges the sufficiency of the evidence to support her conviction for capital murder, specifically claiming there was insufficient evidence to support the robbery element of that offense. See Tex. Pen. Code Ann. 19.03(a)(2), 29.02 (Vernon 2003). Specifically, appellant contends the evidence is legally insufficient to support her conviction for capital murder committed in the course of committing a robbery because "the State has failed to prove that [she] ever obtained control over the deceased's property . . . ." and "failed to prove that [she] gave Haskins any money or that she had any knowledge that Haskins was going to rob the victim." Appellant contends the State was required to prove that "[she] knew that Leonard Haskins intentionally stabbed the deceased with the intent to obtain control of the deceased's property and [she] assisted in the robbery."

A. Standard of Review

In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

In reviewing the legal sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("[i]t is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances."); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara, 152 S.W.3d at 49. On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id.

In a criminal conviction, legal sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). The correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; Adi, 94 S.W.3d at 131.

B. Applicable Law

To support appellant's conviction for capital murder, the State was required to prove that appellant intentionally caused Haynes' death while in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. 19.02(b)(1), 19.03(a)(2), Tex. Pen. Code Ann. 7.01(a), 7.02(a)(2) (Vernon 2003). (3)

A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. 29.02(a)(1). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2006). For the purposes of capital murder, "in the course of committing" a robbery is defined as conduct occurring in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of the murder. McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). For a murder to qualify as capital murder under section 19.03, the killer's intent to rob must be formed before or at the time of the murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Proof of a robbery committed as an afterthought and unrelated to a murder does not support a conviction for capital murder. Alvarado, 912 S.W.2d at 207. However, if there is evidence from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of robbery. Id.; Robertson v. State, 871 S.W.2d 701, 706 (Tex. Crim. App. 1993). Moreover, in a capital murder case, if the State proves the robbery occurred immediately after the murder, the evidence is sufficient to prove the nexus between the murder and the robbery. Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002); McGee, 774 S.W.2d at 234. Even in the absence of additional evidence of a nexus, the robbery of the victim immediately after the murder is sufficient proof of a nexus. Cooper, 67 S.W.3d at 224. The jury may infer the requisite intent from the acts, words and conduct of the defendant. Alvarado, 912 S.W.2d at 207; Robertson, 871 S.W.2d at 706.

The jury instructions authorized the jury to convict appellant of capital murder as a party to the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. 7.01(a), 7.02(a)(2); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. 7.02(a)(2); Vodochodsky, 158 S.W.3d at 509.

Evidence is sufficient to convict a defendant under the law of parties where he is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim. App. 2005) (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). While the presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). In determining whether there is sufficient evidence to convict under the law of parties where the defendant is physically present at the commission of the offense, the reviewing court may look to events occurring before, during, and after the commission of the offense, may rely on actions of the defendant that show an understanding and common design to do the prohibited act, and may use circumstantial evidence to prove party status. Salinas, 163 S.W.3d at 739 (citing Ransom, 920 S.W.2d at 302). Further, participation in an enterprise may be inferred from circumstances and need not be shown by direct evidence. Beardsley, 738 S.W.2d at 684. While flight alone will not support a guilty verdict, evidence of flight from the scene of a crime is a circumstance from which an inference of guilt may be drawn. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979).

C. Evidence

The following relevant evidence was adduced at trial: Clay testified that appellant told him to come back and help Haskins with Haynes. Before the argument between Haskins and Haynes began, appellant handed Haskins a knife and tried giving one to Clay too. Appellant told Haskins to get Haynes' keys from him. Appellant asked Haynes where his keys were, but Haynes said he could not find them. Appellant assisted Haskins in disposing of his bloody clothes and in washing the blood off the knife. Maxwell testified that appellant and Haskins were laughing after Haynes was stabbed. She also testified that appellant told her not to talk to the police and to say that they did not know anything. Maxwell also recalled a conversation with Detective Revis about "baiting" Haynes back to the house when they were at the convenience store. She testified, "I guess they set him up, or something."

D. Conclusion

Viewing the above evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient for the jury to rationally conclude beyond a reasonable doubt that the intent to rob was formulated before the fatal wounds were inflicted on Haynes. Further, a rational juror could find without a reasonable doubt that appellant aided, assisted, or encouraged in the murder. Vodochodsky, 158 S.W.3d at 509; Salinas, 163 S.W.3d at 739 (citing Ransom v. State, 920 S.W.2d at 302). The above evidence likewise shows that appellant, along with the other parties involved, "were acting together, each contributing some part towards the execution of their common purpose." Salinas, 163 S.W.3d at 739 (citing Ransom, 920 S.W.2d at 302). (4)

We conclude the evidence is legally sufficient to uphold the jury's conviction.

Accordingly, appellant's first issue is overruled.

III. Ruling on Evidence of Extraneous Offenses, Claim of Ineffective

Assistance of Counsel, and Alleged Violation of the Confrontation Clause

In her second issue, appellant contends that her "constitutional right of cross-examination was improperly limited by the trial court making an erroneous ruling regarding 404(b) extraneous offenses . . . thus depriving appellant of effective assistance of counsel." As briefed, appellant's second issue involves at least three different sub-issues, including a challenge to the trial court's evidentiary ruling, a claim of ineffective assistance of counsel, and an alleged violation of the Confrontation Clause. Each of the sub-issues involves the trial court's ruling, which prevented the State from introducing evidence of extraneous offenses unless and until the defendant opened the door to them. Although appellant raises the complaints together in a single issue, we believe they are more appropriately addressed separately as three different issues.

A. Evidence of Extraneous Offenses

We first address appellant's contention that the trial court made an "erroneous ruling regarding 404(b) extraneous offenses." A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Id.

Prior to trial, the State filed a motion to determine the admissibility of certain extraneous offenses in the guilt-innocence phase of trial. These included three aggravated robberies, as well as a "global [pattern of] robberies" during a specific period of time, including an admission to an individual named Michael Smith by appellant wherein she admitted that she had previously robbed other individuals by luring them with the promise of prostitution. The trial court deferred its decision on the admissibility of the extraneous offenses until trial. The trial court explained:

[T]he only issue I'm going to allow in is, if in fact it [appellant's intent in committing capital murder] cannot be inferred, and we're not going to know that until I hear the cross-examination of the next three witnesses, so I'm going to carry my decision with regards to the State's request of extraneous offenses as far as one, two and three, the 2004 and the 2001. I am in effect, denying your request with regards to Michael Smith and this- general statement of other robberies. But I need to hear the cross-examination because if the cross-examination-from the cross-examination I can sense a defensive theory because I can use the cross-examination to come to that conclusion, so I'm going to hold on my decision. And you could, if I decide to allow the extraneous offenses in the punishment phase, you're going to be allowed to recall whatever witnesses you need to do that. Everybody understand what I'm going to do? That's the only thing that I have. I'm not going to allow it in for any other reason, except for intent.

 

The State did not further pursue the introduction of the extraneous offenses, and defense counsel did not cross-examine the witnesses in regard to these offenses. There was no objection by either party to the trial court's decision to defer ruling. And, because neither party attempted to introduce evidence of the extraneous offenses, the trial court never ruled. Accordingly, without a ruling by the trial court, there is nothing before this Court for review. Because appellant is really complaining about defense counsel's inaction (by failing to "open the door" to this evidence), this contention is most appropriately addressed in light of appellant's ineffective assistance of counsel claim. This complaint is addressed below.

B. Claim of Ineffective Assistance of Counsel

In a second sub-issue raised in appellant's second issue, appellant complains that her trial counsel was ineffective because he did not cross-examine Robert Clay about his prior testimony from a previous trial involving the same murder and robbery at issue in appellant's case. According to appellant, "Cross-examining the witness on prior inconsistent statements would not have opened the door to the extraneous offenses in question." In our view, this claim is properly viewed as an ineffectiveness claim.

The legal standard for ineffectiveness claims was set out in Strickland v. Washington, 466 U.S. 668 (1984); see Mata v. State, No. PD-1724-04, 2007 Tex. Crim. App. LEXIS 695, at *5-*6 (Tex. Crim. App. June 6, 2007). To prevail, appellant must first show that her counsel's performance was deficient. See Strickland, 466 U.S. at 687. Specifically, appellant must prove, by a preponderance of the evidence, that her counsel's representation fell below the objective standard of professional norms. Mata, 2007 Tex. Crim. App. LEXIS 695, at *5; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Second, appellant must show that this deficient performance prejudiced her defense. Strickland, 466 U.S. at 687. Appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Mata, 2007 Tex. Crim. App. LEXIS 694, at *6-*7; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A "reasonable probability" is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Mata, 2007 Tex. Crim. App. LEXIS 695, at *7; Mitchell, 68 S.W.3d at 642 n.10.

Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone, 77 S.W.3d at 833. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Id.; see Mata, 2007 Tex. Crim. App. LEXIS 695, at *9-*10. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone, 77 S.W.3d at 833; see Mata, 2007 Tex. Crim. App. LEXIS 695, at *9-*10. "In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Bone, 77 S.W.3d at 833; see Mata, 2007 Tex. Crim. App. LEXIS 695, at *9-*10.

At the hearing on appellant's motion for new trial, appellant's trial counsel explained his reasons for limiting the scope of his cross-examination of Robert Clay and the State's other witnesses:

Q. Do you recall the conference outside the presence of the jury where 404(b) material was raised?

 

A. Yes.

* * * *

 

Q. Did you have a list that was provided to you before trial of all the 404(b) extraneous material the state intended to ask to be offered?

 

A. Yes.

 

Q. Did the case . . . [include] the aggravated robbery upon . . . Larry Wright, was that in those materials?

 

A. That was the most important one.

 

Q. And why was that so important?

 

A. The . . . robbery involving Mr. Wright was almost a carbon copy of the robbery in . . . this case.

 

Q. And [it] occurred close in time right after the capital case; is that correct?

 

A. And it occurred in less than a month after this - the robbery in this case.

 

Q. Did you feel that if the jury had that information, that . . . [they] would make a fast conviction in the capital case?

 

A. It would have been a 30-minute verdict.

 

Q. Why do you feel that?

 

A. Well, I felt . . . that if the jury found out that Ms. Rivas was involved in another robbery similar to the one in this case, committed almost in the same manner and with the same - one of the - at least one of the same parties, that they would probably not consider much more.

 

* * * *

 

Q. With the results of the judge's rulings, what were your concerns and what did you do?

 

A. Well, [my co-counsel] . . . and I kind of looked at each other and we had a short conversation about, you know, what we should do, and we figured the danger was great that if we fully-examined the three key state's witnesses, that the door would be opened. And so, given the nature of the case on trial, we decided that if we were not gonna fully cross-examine the witnesses we should tell the defendant why we were not doing it so we asked to speak to her outside the courtroom.

 

* * * *

 

Q. Was this decision one of strategy?

 

A. Yes. That was a conscious - I made a conscious decision not to cross-examine those three witnesses fully because of the danger of the extraneous offense coming in, particularly the Wright robbery.

 

After holding the evidentiary hearing at which the foregoing testimony was given, the trial court denied appellant's request for a new trial based on counsel's ineffectiveness. We agree with that ruling.

The Texas Court of Criminal Appeals recently discussed and rejected ineffectiveness claims based on trial strategy to avoid the introduction of extraneous offenses. Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (orig. proceeding). Its words resonate strongly in this case and lead to our conclusion that appellant's ineffectiveness claim must be overruled:

Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial. It is frequently a sound trial strategy not to attack a sympathetic eyewitness without very strong impeachment. Otherwise, an attorney risks reinforcing the eyewitness' previous identification of the defendant as the assailant.

 

Furthermore, cross-examination is an art, not a science, and it cannot be adequately judged in hindsight . . . . A defense strategy that avoids the introduction of extraneous offenses under Rule 404(b) is not constitutionally ineffective.

 

Id.

 

For these reasons, we overrule appellant's second issue as it relates to an ineffectiveness claim.

C. Alleged Violation of the Confrontation Clause

Appellant also complains that the trial court improperly limited her attorney's ability to cross-examine the State's witnesses. Again, we disagree. The trial court did not make a ruling that limited counsel's right to cross-examine the witnesses. Furthermore, defense counsel made no objections based on the Confrontation Clause. Accordingly, the error, if any, is not properly before this Court for review. See Dewberry v. State, 4 S.W.3d 735, 752 n.16 (Tex. Crim. App. 1999).

IV. Submission of a Supplemental Jury Charge

In her third issue, appellant contends that the trial court erred in submitting the following supplemental jury charge:

Members of the jury:

 

I see no reason why you jurors are not as competent, nor not as able, nor as likely to decide the disputed issues of fact in this case and decide them right, as the next jury that may be called to determine such issues.

 

I do not want you to understand by what I say that you are going to be made to agree, or that you will be kept out until you do agree. I do want you to understand that it is your duty to make an honest and sincere attempt to arrive at a verdict. Jurors should not be obstinate; they should be open-minded; they should listen to the arguments of others; and talk matters over freely and fairly, and make an honest effort, as fair-minded men and women, to come to a conclusion on all the issues presented to them.

The charge was submitted over defense counsel's objection after two days of jury deliberations, totaling approximately seven and a half hours. The charge followed two jury notes stating that the jury was at an "impasse" and that the "chasm was quite wide." The supplemental charge was submitted at approximately 4:05 p.m. According to the docket sheet, the jury returned a guilty verdict at 5:20 p.m.

An Allen charge is a supplemental charge sometimes given to a jury that declares itself deadlocked. Allen v. United States, 164 U.S. 492, 501 (1896); see also Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006). It reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve. Allen, 164 U.S. at 501; Barnett, 189 S.W.3d at 277 n.13. While such a charge is permissible in both the federal system and Texas courts, trial courts must be careful to word it and administer it in a non-coercive manner. Barnett, 189 S.W.3d at 277 n.13; see Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (noting that a supplemental Allen charge must be considered "'in its context and under all the circumstances'" to determine whether it improperly coerced the jury) (citation omitted); Howard v. State, 941 S.W.2d 102, 123-24 (Tex. Crim. App. 1996) (although trial judge was aware of the numerical division when he gave supplemental Allen charge, he "did not directly address the minority jurors and did not shade the instruction with coercive nuance," thus, in context, charge was noncoercive).

The primary inquiry to determine the propriety of an Allen or "dynamite" charge is its coercive effect on juror deliberation "in its context and under all circumstances." Lowenfield, 484 U.S. at 237; Howard, 941 S.W.2d at 123. "An instruction will constitute reversible error only if, on its face, it is so improper as to render jury misconduct likely, or jury misconduct is demonstrated to have occurred in fact." Davis v. State, 709 S.W.2d 288, 291 (Tex. App.-Corpus Christi 1986, pet. ref'd).

In examining appellant's claim that the charge was coercive on its face, we are mindful of the calculus of Allen:

The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself.

 

Allen, 164 U.S. at 501.

The United States Supreme Court has re-affirmed the legitimacy of Allen and has commented that the preceding "observations are beyond dispute, and they apply with even greater force in a case such as this, where the charge given, in contrast to the so-called 'traditional Allen charge,' does not speak specifically to the minority jurors." Lowenfield, 484 U.S. at 237-38; Howard, 948 S.W.3d at 123. Thus, a supplemental charge which suggests that all jurors reevaluate their opinions in the face of disparate viewpoints cannot be said to be coercive on its face. Howard, 948 S.W.3d at 123.

In Davis, this Court upheld a trial court's use of a charge virtually identical to the one used in this case. Davis, 709 S.W.2d at 290-91. Appellant has presented no compelling reason for this Court to abandon its precedent upholding the charge as noncoercive. Because the instruction is noncoercive, we cannot hold that it rendered jury misconduct likely. See id. at 291. Appellant's third issue is overruled.

V. Invocation of "The Rule" Against Deceased Victim's Adult Sister

In her fourth issue, appellant contends that the trial court erred in allowing the deceased victim's adult sister, who was a witness in the case, to remain in the courtroom after defense counsel invoked "the rule." See Tex. R. Evid. 614. The procedure for excluding witnesses from the courtroom is commonly called putting the witnesses "under the rule." Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). The purpose of placing witnesses "under the rule" is to prevent the testimony of one witness from influencing the testimony of another, consciously or not. Russell, 155 S.W.3d at 179.

In this case, defense counsel invoked the rule. The prosecutor asked that the victim's sister be allowed to remain in the courtroom because of "her rights as a victim." Defense counsel insisted that she be excluded. The trial court allowed the witness to remain in the courtroom, and she later gave testimony to identify the victim and to give general testimony about his family. She did not testify about the offense.

Having reviewed the record and the briefs, we conclude that no error has been shown. In reaching this conclusion, we are guided by article 36.03 of the Texas Code of Criminal Procedure, which provides in relevant part:

(a) Notwithstanding Rule 614, Texas Rules of Evidence, a court at the request of a party may order the exclusion of a witness who for the purposes of the prosecution is a victim, close relative of a deceased victim, or guardian of a victim only if the witness is to testify and the court determines that the testimony of the witness would be materially affected if the witness hears other testimony at the trial.

(b) On the objection of the opposing party, the court may require the party requesting exclusion of a witness under Subsection (a) to make an offer of proof to justify the exclusion.

Tex. Crim. Proc. Code Ann. art. 36.03(a), (b) (Vernon 2007).

Appellant has not addressed article 36.03 in her brief. She has instead focused solely on rule 614. We find her arguments unpersuasive because they do not account for the rights given to close relatives of a deceased victim under article 36.03. Without addressing those rights, it is impossible to establish that the trial court erred. Furthermore, appellant has not demonstrated how, if at all, the witness was influenced in her testimony by the testimony she heard. See Russell, 155 S.W.3d at 179. Relief is precluded without such a showing, even if the trial court had erred. See id. Appellant's fourth issue is therefore overruled.

VI. Pre-Trial Motion to Compel Interview with Co-Defendant Robert Clay

In her fifth issue, appellant contends that the trial court erred by not compelling the State's witness to undergo an interview with defense counsel before trial. Appellant's argument rests entirely on her understanding that "counsel has the responsibility to seek out and interview potential witnesses." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Although appellant's understanding of counsel's professional responsibility seems correct, we nevertheless disagree with her argument that the trial court erred by not compelling the interview. Primarily, this is because appellant has failed to direct our attention to any precedent or statute authorizing the trial court to compel such an interview.

Neither the Texas nor the United States Constitution contains a general right to discovery in a criminal case. A criminal defendant's right to discovery is limited to exculpatory or mitigating evidence in the State's possession, custody, or control. In re State, 162 S.W.3d 672, 678 (Tex. App.-El Paso 2005) (original proceeding). Beyond this, a criminal defendant has no general right of discovery. Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993). The trial court's power to enter discovery orders in criminal cases is limited to the authority granted by article 39.14. In re State, 162 S.W.3d at 678. Article 39.14 provides that upon motion by the defendant showing good cause, and upon notice to the other parties, the trial court:

[M]ay order the State before or during trial of a criminal action . . . to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case . . .), books, accounts, letters, photographs, objects or tangible things not privileged which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.

Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2006). Accordingly, criminal discovery orders must fall within the confines of that article's limited authorization. Id. Article 39.14 does not provide for the pretrial interview of witnesses; it does not even entitle a defendant to witnesses' written statements. Thus, we conclude that an order requiring the State's witness to undergo an interview with defense counsel would clearly exceed the scope of discovery authorized by article 39.14. See State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex. App.-Dallas 1987, orig. proceeding); see also State ex. rel. Robinson, 116 S.W.3d 115, 118 (Tex. App.-Houston [14th Dist.] 2002, orig. proceeding). On appeal, we have no authority that would allow a trial court to authorize pre-trial discovery by way of a compelled interview. Accordingly, the trial court did not err in denying appellant's request to order the State's witness to submit to a pretrial interview. We overrule appellant's fifth issue. (5)

VII. Jury Instruction on "Mitigating Evidence"

 

In her sixth issue, appellant complains that the trial court erroneously refused her request that the jury be charged that they may consider any evidence to be mitigating even if irrelevant to her moral blameworthiness. (6)

The complained-of instruction reads, "You are instructed that the term 'mitigating evidence,' as used herein, means evidence that a juror might regard as reducing the defendant's moral blameworthiness." Appellant claims that her requested charge was necessary to "prevent confusion and increase clarity" in the definition of mitigating evidence. See Tex. Code Crim. Proc. Ann. art. 37.071, 2(f)(4) (Vernon 2006). (7) She argues that the instruction given to the jury unconstitutionally limits the definition of mitigating evidence to evidence concerning only moral blameworthiness.

However, as the State points out, and as appellant concedes, the challenged instruction has been held not to unconstitutionally narrow the jury's discretion to factors concerning only moral blameworthiness. See Perry v. State, 158 S.W.3d 438, 449 (Tex. Crim. App. 2004) (citing Cantu v. State, 939 S.W.2d 627, 648-49 (Tex. Crim. App. 1996)); Prystash v. State, 3 S.W.3d 522, 534-535 (Tex. Crim. App. 1999). Faced with a similar challenge in Cantu, the Texas Court of Criminal Appeals held that article 37.071, section 2(e) solves any potential narrowing problem in section 2(f)(4). Cantu, 939 S.W.2d at 648-49. Article 37.071, section 2(e) instructs the trial court to charge the jury that they must "take into consideration 'all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant' in determining whether sufficient mitigating circumstances exist to warrant a life sentence." Id. (emphasis added in Cantu). Although mitigating evidence is statutorily defined as that evidence which "a juror might regard as reducing a defendant's moral blameworthiness," article 37.071, section 2(f)(4), the trial court's instructions pursuant to section 2(e) provide the jury with a vehicle to respond to a broader range of mitigating evidence. See id.; Goff v. State, 931 S.W.2d 537, 556 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 555-56 (Tex. Crim. App. 1995).

The jury in the present case was instructed:

In determining your answers to No. 1 and No. 2 special issues, you shall consider all the evidence admitted at both stages of the trial.

 

Additionally, you shall consider all [evidence] admitted at both stages of the trial as to defendant's background or character or the circumstances of the offense that militates or mitigates against the imposition of the death penalty.

 

Although appellant concedes that the court of criminal appeals has rejected her argument, she nonetheless claims that because "[t]he charge in this case does not directly tell the jury to read Article 37.071, Section 2(e) together with the Section 2(f)(4) instruction. . . . [T]here is [a] possibility that the jury will consider only Section 2(f) and thus narrow its consideration of mitigating circumstances only to factors that relate to moral blameworthiness." In addition to the above instructions, the jury was asked to answer special issue number three, which provided:

Do you find, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

 

The jury answered "Yes," and appellant was given a life sentence rather than a death sentence. We conclude that appellant's argument is without merit because the jury instruction, together with special issue three, provided the jury with a vehicle to respond to a broader range of mitigating evidence. See Cantu, 939 S.W.2d at 648-49. Accordingly, in light of Cantu and its progeny, we conclude that the article 37.071, section 2(f)(4) instruction did not unconstitutionally narrow the jury's discretion to factors concerning only moral blameworthiness. We further conclude that because appellant does not complain of any evidence to which the jury could not give effect, even if the statute is deficient in the way that she suggests, she did not suffer the deficiency. Prystash, 3 S.W.3d at 535 (citing McFarland v. State, 928 S.W.2d 482, 518 (Tex. Crim. App. 1996)). Appellant's sixth issue is overruled.

VIII. "Mitigating Evidence"

 

In her seventh issue, appellant claims the trial court erred in denying her requested charge as it relates to paragraph seven of the punishment charge.

The complained-of-charge tracks the language of article 37.071(d)(1) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.071(d)(1). The charge reads, "Additionally, you shall consider all [evidence] admitted at both stages of the trial as to defendant's background or character or the circumstances of the offense that militates or mitigates against the imposition of the death penalty." Appellant objected to the charge claiming that "the phrase 'mitigates against the imposition of the death penalty' is a flagrant misuse of the English language that creates confusions [sic] which prevent the charge from being an adequate vehicle by which the jury can give effect to mitigating evidence." Appellant's proposed charge requested that the trial court replace the word "mitigate" with the word "militate."

We decline to address appellant's contention for various reasons. First, appellant has failed to cite to appropriate authority in support of her claim that the particular wording, specifically the use of the word "mitigate," makes the charge confusing. See Tex. R. App. P. 38.1(h). Moreover, appellant has not provided a legal basis for finding the complained-of-language in article 37.071(d)(1) erroneous or unconstitutional. See id. (8)

Finally, even if we were to assume the statute is deficient in its "flagrant misuse of the English language," appellant has failed to show how she suffered from the deficiency. Prystash, 3 S.W.3d at 535. Appellant likely cannot show how she was harmed because the jury found that there was mitigating evidence which warranted a life sentence rather than a death sentence. Accordingly, we overrule appellant's seventh issue.

IV. Conclusion

The judgment of the trial court is affirmed.

_________________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 12th day of July, 2007.

1. Haynes was a foreman for D-Mack Construction and was staying at the Days Inn with a construction crew while he was directing a job at Ed Hicks Nissan.

2. The man was later identified by appellant as Leonard Haskins. Haskins was arrested a few days later.

3. A hypothetically correct charge would instruct the jury to convict appellant of capital murder if she (1) intentionally (2) committed murder (3) in the course of committing or attempting to commit robbery (4) as a party. See Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003), 19.03(a)(2) (Vernon Supp. 2006); see also Tex. Pen. Code Ann. 7.01(a), 7.02(a)(2) (Vernon 2003).

4. At the conclusion of her legal sufficiency challenge, appellant asks that the case be "reversed and dismissed or in the alternative and new trial granted." However, appellant has not briefed factual sufficiency as an appellate issue. The Texas Court of Criminal appeals has held that a single sentence requesting an appellate court to conduct a factual sufficiency review, without any other reference to factual sufficiency or the applicable standard, is inadequately briefed as to that issue. See Tex. R. App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000); Chavero v. State, 36 S.W.3d 688, 693 (Tex. App.-Corpus Christi 2001, no pet.). We hold appellant's claim that the evidence in this case is factually insufficient is inadequately briefed and not properly before this Court. We will, therefore, not conduct a factual sufficiency review.

5. Appellant could have requested that the trial court order a deposition of the witness under article 39.02 of the Texas Code of Criminal Procedure; however, appellant failed to do so. See Tex. Code Crim. Proc. Ann. art. 39.02 (Vernon Supp. 2006). Accordingly, we need not address the trial court's authority under this provision. See Tex. R. App. P. 33.1. Additionally, we note that the witness in question asserted his Fifth Amendment right when defense counsel attempted to interview him.

6. When reviewing charge error, we utilize a two-step process. See King v. State, 174 S.W.3d 796, 812 (Tex. App.-Corpus Christi 2005, pet. ref'd). Our first duty in analyzing a jury-charge issue is to determine whether error exists. Id. If we find error, we analyze that error for harm. Id. Preservation of charge error does not become an issue until we assess harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc). If, as in the present case, the error in the charge was timely objected to in the trial court, reversal is required if the error is calculated to injure the rights of the defendant. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Penry v. State, 178 S.W.3d 782, 788 (Tex. Crim. App. 2005).

7. Appellant objected to this instruction and proposed an instruction that included language emphasizing that, in considering mitigating evidence, the jury could consider any evidence that was mitigating in nature and not only evidence relating to appellant's moral blameworthiness.

8. The thrust of appellant's argument is that "the author of the statute incorrectly uses the word 'mitigates'," "the author combines it inaccurately with the preposition 'against'," and "the author violates the parallel structure of the compound verb phrase."