Thomas, Derris Desmond v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed October 18, 2005

Affirmed and Memorandum Opinion filed October 18, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00275-CR

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DERRIS DEMOND THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 953,872

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

Appellant Derris Thomas was indicted for aggravated robbery and pled not guilty. See Tex. Pen. Code Ann. ' 29.03(a) (Vernon 2003). At trial, appellant denied any involvement in the charged crime and specifically named an alternative perpetrator. The jury found appellant guilty and assessed punishment at five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In two points of error, appellant argues: (1) the trial court erred by allowing the complainant to make an in-court non-identification of the man appellant alleged was the perpetrator; and (2) the trial court erred by allowing hearsay testimony of an extraneous offense during the punishment phase. We affirm.

I. BACKGROUND

The complainant testified that on the evening of May 1, 2003, she was accosted by appellant in her apartment complex parking lot. The complainant testified appellant aimed a gun at her head, demanded her purse and keys, and forced her inside the trunk of her car. Appellant got into the car and pulled the car=s backseat down, which allowed the complainant to see appellant as he drove the car to various locations. Appellant drove the complainant=s car to a gas station and attempted to withdraw money from an ATM machine using the complainant=s card. While appellant=s attention was diverted, the complainant escaped from the trunk of the car and called the police.

During the police investigation, the complainant identified appellant as the perpetrator in a photo line-up and a live line-up, and appellant was subsequently arrested. Appellant professed his innocence and alleged Quincy Moore, who was known to have been involved in armed car-jackings, was the actual perpetrator. Investigators never considered Moore as a suspect but, at appellant=s request, the complainant viewed a photo line-up of five unknown men and Moore on the eve of trial. The complainant did not recognize any of the men as the perpetrator.

During the State=s case-in-chief, the complainant identified appellant as the perpetrator. Appellant=s cross-examination of the State=s witnesses explored the issue of Quincy Moore=s status as the perpetrator and elicited testimony of similar robberies Moore had committed. The State responded by eliciting testimony from Officer Guidry, an investigating officer, that the complainant viewed Moore=s photo and did not identify him as the perpetrator. Appellant made no hearsay objection to Officer Guidry=s testimony.

Appellant=s defense alleged mistaken identity, accusing Moore of being the actual perpetrator. To support this defensive theory and impeach the reliability of the complainant=s positive identification of appellant and non-identification of Moore, appellant=s case-in-chief consisted primarily of:

(1) denying appellant=s involvement in the crime;

(2) alleging Quincy Moore was the perpetrator of the crime;

(3) eliciting testimony of Moore=s prior bad acts, including aggravated robberies similar to the one charged;

(4) introducing Moore=s photo into evidence along with a composite sketch of the perpetrator drawn from the complainant=s description, eliciting testimony of their resemblances, and implying Moore looked more like the composite sketch than appellant does;

(5) eliciting testimony from appellant and another witness that Moore was seen driving the complainant=s car on the night of the robbery;

(6) attacking the thoroughness of the police investigation; and

(7) suggesting the complainant=s positive identification of appellant was not credible because it was the result of suggestive police procedures.

The State responded to appellant=s defensive theory by eliciting testimony from Officer Guidry that Moore=s modus operandi was different from this case and that Moore does not look like appellant, particularly because his skin complexion is completely different. Appellant replied by eliciting testimony from Officer Guidry of the similarities between the robberies and of how the complainant=s perception of the perpetrator=s complexion could have been affected by the lack of light on the evening of the incident.

During the State=s rebuttal, over objection, the complainant viewed Moore in person and in front of the jury. After viewing Moore, the complainant testified she was certain he was not the man who robbed her.

II. DISCUSSION

A. Texas Rule of Evidence 403

In his first point of error, appellant contends the trial court erred when it allowed the complainant to make an in-court non-identification of Quincy Moore when evidence already showed the complainant did not previously identify Moore as the perpetrator from a photo line-up. Appellant concedes the identification was relevant but argues, without citation to authority in support of his argument, the in-court non-identification should have been done outside of the jury=s presence.[1] Appellant contends the probative value of the in-court non-identification of Moore in front of the jury was substantially outweighed by its prejudicial effect.[2]

1. Standard of Review

A trial court=s ruling on a 403 objection will not be overturned absent an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439B40 (Tex. Crim. App. 2005). The rationale for this broad discretion is twofold. First, Rule 403=s language that relevant evidence Amay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice@ displays the drafters= intent to vest the trial court with substantial discretion. Id. (quoting Tex. R. Evid. 403)). Second, the trial court is in a superior position to evaluate the impact of the evidence than an appellate court reviewing only a transcript. See id.; Montgomery v. State, 810 S.W.2d 372, 378B79 (Tex. Crim. App. 1990). Unlike the trial court, an appellate court A>cannot weigh on appeal . . . the intonation and demeanor of the witnesses preceding the testimony in issue . . . nor can [it] determine the emotional reaction of the jury to other pieces of evidence . . . or judge the success of impeachment by cross-examination through observation of the jurors.=@ Montgomery, 810 S.W.2d at 379 (quoting United States v. Robinson, 560 F.2d 507, 512B516 (2d Cir. 1977)). The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable, and we must uphold the admissibility decision when it is within the zone of reasonable disagreement. Mechler, 153 S.W.3d at 439B40.

2. Application of Rule 403

Under Texas Rule of Evidence 401, evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. There is a presumption of admissibility of relevant evidence. See Tex. R. Evid. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App. 2004). Relevant evidence still may be excluded by the trial court under Rule 403 Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@ Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that favors the evidence=s probative value. Feldman v. State, 71 S.W.3d 738, 754B55 (Tex. Crim. App. 2002). The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent=s need for the evidence to prove a fact of consequence. Mechler, 153 S.W.3d at 440. If the record reveals one or more of those considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude the trial court abused its discretion by admitting the evidence. See Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).

a. Probative Value

We begin our analysis by examining the probative value of the complained of evidence. Identity was a material issue in this case and was vigorously contested by appellant. The reliability of the complainant=s positive identification of appellant and non-identification of Moore=s photo was attacked by the defense through suggestions that Moore looks more like the composite sketch than appellant does. See Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (finding impeachment on a material detail of identification when cross-examination suggested that 265 pound defendant was not the 200 pound assailant). The reliability of the complainant=s non-identification of Moore was highly relevant to the contested identification issue, and because the complainant saw the perpetrator in person, it follows that the most probative non-identification of Moore would also be in person. The in-court non-identification served to make a fact of consequence, namely appellant=s identity, more probable and had significant probative value. Accordingly, we conclude the evidence is highly probative.

b. Indelible Impression

The second criteria used to determine whether the prejudice of admitting the evidence substantially outweighs the probative value is whether the evidence has the potential to impress the jury in an irrational but nevertheless indelible way. ARule 403 does not exclude all prejudicial evidence. It focuses only on the danger of >unfair prejudice.=@ Mechler, 153 S.W.3d at 440. AUnfair prejudice@ only occurs if relevant evidence tends to tempt a jury into a finding of guilt on grounds other than proof of the charged offense. Id.

The complainant=s non-identification of Moore in the jury=s presence was prejudicial to appellant=s defensive theory; however, the non-identification was not Aunfairly prejudicial@ and it did not have the potential to impress the jury in an irrational way simply by showing the complainant did not recognize Moore as the perpetrator. The jury was still required to be convinced beyond a reasonable doubt that appellant was the perpetrator of the charged offense and was not left with an irrational impression. Accordingly, given the other identification evidence in this case, we cannot conclude the complainant=s in-court non-identification of Moore impressed the jury in an irrational but nevertheless indelible way.

c. Time to Develop

The third criteria used to determine whether the prejudice of admitting the evidence substantially outweighs the probative value is the amount of time needed to develop the contested evidence, during which the jury will be distracted from the indicted offense. Id. at 441. The time involved in making the non-identification in this case was short and was unlikely to distract the jurors from considering the charged offense. This factor weighs in favor of the State.

d. Need for the Evidence

The last factor used to determine whether the prejudice of admitting the evidence substantially outweighs the probative value focuses on the proponent=s need for the evidence to prove a fact of consequence. This factor encompasses whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Id. During the State=s case-in-chief, Officer Guidry told the jury the complainant had viewed Moore=s photo and did not recognize him as the perpetrator. Appellant=s case-in-chief attacked the reliability of the complainant=s non-identification of Moore by suggesting Moore looked like the composite sketch of the perpetrator. According to testimony elicited by the State, although Moore and appellant share some resemblances, they look different in person because they have Acompletely different@ skin complexions. Appellant undermined the differences between appellant=s and Moore=s complexions by eliciting testimony that the complainant=s perception of the perpetrator=s complexion could have been affected by the lack of light on the evening of the incident, increasing the State=s need for the in-court non-identification. Accordingly, the State needed the in-court non-identification of Moore by the complainant to help prove the contested issue of identity.

Evaluating the above four factors and balancing the prejudicial nature of the evidence against its probative value, we conclude the trial court did not abuse its discretion by allowing the in-court non-identification of Moore because the prejudice of the complainant=s non-identification of the alternative perpetrator does not outweigh its probative value.

Accordingly, we overrule appellant=s first point of error.

B. Hearsay Testimony

In his second point of error, appellant contends the trial court erred by allowing hearsay testimony of an extraneous offense during the punishment phase.

At trial, appellant argued as follows:

Your honor, [the State does not] even have probable cause to charge [appellant] in that offense. If they had it, they would have already charged him for aggravated robbery in that case. They were investigating that case originally and they didn=t have enough evidence to even charge him in that case.

I think for that reason there is no evidence that he committed this beyond a reasonable doubt. This would be another trial to go through. He never admitted to robbing anyone. He admitted to using a credit card that was given to him by Quincy Moore. That=s what put him in this case to begin with. There was absolutely no probable cause for them to even get a complaint on the other case. They were investigating multiple aggravated robberies. They never even filed on that other case because they didn=t have enough to get even probable cause. They filed on this because they had a positive I.D. They didn=t have that in the other case.

Appellant=s hearsay complaints and alleged violations of the confrontation clause were never raised in the trial court below, and appellant may not raise them for the first time on appeal. To preserve error, a defendant=s trial objection must comport with the issue raised on appeal. See Tex. R. App. P. 33.1(a); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996). Appellant=s arguments on appeal present a substantially different basis for excluding the extraneous evidence than those raised in the trial court. Appellant=s failure to raise his appellate arguments at trial deprived the trial court of the opportunity to rule upon the argument and deprived the State of an opportunity to develop a complete factual record. See Hailey v. State, 87 S.W.3d 118, 121 (Tex. Crim. App. 2002). Because these issues were not raised at trial, we will not violate ordinary notions of procedural default, nor vitiate the efforts of the trial court and the prosecution by ruling on issues that were never presented during the proceedings below. These issues are waived on appeal, and there is nothing for this court to review.

Accordingly, we overrule appellant=s second point of error.

III. CONCLUSION

Having overruled appellant=s points of error, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 18, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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

[1] At trial, appellant did not request the non-identification of Moore be made outside of the jury=s presence.

[2] The State argues appellant failed to preserve this argument on appeal. When the State called the complainant as a rebuttal witness to identify Moore in court, appellant=s overruled objection to the identification was as follows:

Your Honor, I also want to put on the record that I object to that identification. I think at this point it=s rather inflammatory and it wasn=t done in the proper investigation. I don=t feel that B it wasn=t put in a photospread, it wasn=t put in a live lineup.

The State contends the trial court objection is too general and does not comport with the objection on appeal. We believe appellant=s Ainflammatory@objection was sufficiently specific to inform the trial court of this specific Rule 403 complaint. See Tex. R. App. P. 33.1(a).