Robert Dennon Huggins v. The State of Texas--Appeal from 221st District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-393 CR
______________________
ROBERT DENNON HUGGINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 04-06-04197 CR
MEMORANDUM OPINION

We withdraw our opinion of September 12, 2007, and substitute this modified opinion within thirty days after the appellant filed a Petition for Discretionary Review. See Tex. R. App. P. 50.

Robert Dennon Huggins appeals his conviction and forty-five year sentence. Charged with David Derrick South and Earl Floyd Randall, Jr. on an indictment for capital murder, Huggins waived his right to a jury and pled guilty to aggravated kidnapping. (1) In two issues, Huggins contends the trial court erred in permitting the State to treat a witness as hostile and in considering a videotape that was not admitted into evidence. We affirm.

The State called Jacob Willhoite as a witness in punishment. When the offense occurred in 2004, Willhoite worked for the appellant. Willhoite was present during the encounter between Huggins and the victim, participated in restraining the victim, and testified under a grant of immunity. Willhoite expressed difficulty recalling relevant facts and answered several questions with gestures rather than spoken response. The trial court granted leave to treat Willhoite as a hostile witness and impeach him with his prior statement.

Huggins contends the trial court erred in allowing the State to treat Willhoite as a hostile witness and argues the trial court's ruling provided an improper opportunity for the State to ask leading questions and to impeach their witness with a prior statement. Citing Goodman v. State and other cases that pre-date the Rules of Evidence, Huggins contends the trial court erred in allowing the State to impeach its own witness in the absence of a showing of surprise and injury. See Goodman v. State, 665 S.W.2d 788, 791 (Tex. Crim. App. 1984). The Rules of Evidence abrogated the common law voucher rule. Russeau v. State, 785 S.W.2d 387, 390 (Tex. Crim. App. 1990). "The credibility of a witness may be attacked by any party, including the party calling the witness." Tex. R. Evid. 607. The Rules of Evidence continued the common law rule that permitted leading questions in the trial court's discretion. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000).

In his petition for discretionary review, Huggins cites Rule 403 and argues for the first time that the State called Willhoite as a witness solely to impeach him and as a subterfuge to admit otherwise inadmissible evidence. We have reconsidered our opinion pursuant to Rule 50. See Tex. R. App. P. 50.

The record shows Huggins's counsel told the trial court: "They called the witness. They had him in trial before." "I don't think he's surprising them with . . . ." The record does not show that Willhoite had recanted his statement in prior sworn testimony at a previous trial or hearing. See Barley v. State, 906 S.W.2d 27, 37, n.11 (Tex. Crim. App. 1995). Furthermore, Huggins did not complain at trial, or in his brief to this Court, that the State called Willhoite as a subterfuge for eliciting otherwise inadmissible evidence. Cf. Hughes v. State, 4 S.W.3d 1, 4-5 (Tex. Crim. App. 1999) (Although a showing of "surprise" or "injury" is no longer required for a party to impeach its own witness under Rule 607, the State's knowledge that its own witness will testify unfavorably is a factor for the trial court's consideration in determining whether evidence is admissible under Rule 403.). Huggins did not make a Rule 403 objection at trial, and did not argue that the prejudicial impact of direct examination testimony regarding Willhoite's prior recorded statement outweighed its probative value. See Tex. R. Evid. 403. Huggins failed to preserve error on a Rule 403 claim. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103 (a)(1).

Furthermore, even if we were to consider the "no surprise" argument as preserving the Rule 403 objection, and as preserving the issue in appellant's brief to this Court, we are not persuaded that the primary purpose of the use of the statement was to admit evidence otherwise inadmissible, nor does the record show that the trial court misused the evidence in assessing punishment. See Hughes, 4 S.W.3d at 4.

"When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." Tex. R. Evid. 611(c). The trial court noted the witness's demeanor as a factor in ruling that the State could treat Willhoite as a hostile witness. Rule 607 allows the credibility of a witness to be attacked by any party. See Tex. R. Evid. 607. We hold the trial court did not abuse its discretion. We overrule issue one.

In his second issue, Huggins contends the trial court erred in considering a videotape that was not admitted into evidence. Before calling a Texas Ranger to testify about his interview with Huggins, the prosecutor mentioned that a second witness would be called to testify about "the tape" and informed the court that the tape had been redacted in response to a memorandum by defense counsel. The trial court asked the purpose of admitting the tape and told the parties, "I've seen the whole tape. Is it for me?" The prosecutor asked to approach, and the court stated, "I mean, I've watched every second of it. I missed nothing." Then the parties, expressly and without objection, went off the record. When the record resumed, the Ranger testified about the details of the interview, but the second witness was not called by the State and the tape was neither published to the Court nor admitted into evidence. At one point, the prosecutor stated to the witness, without objection, that the judge had seen the tape. On cross-examination, defense counsel asked the witness if Huggins's admission that the co-defendants brought him the victim's ear appeared on the tape, but other than the affirmative answer to defense counsel's question, the witness confined his testimony to his interview with the appellant.

On appeal, Huggins contends the trial court improperly took judicial notice of the videotape. See Tex. R. Evid. 201. The record in this case does not establish a claim that the trial court considered the contents of the videotape in determining the appellant's punishment, although appellant's counsel argued to the trial court that "because the Court has seen the interrogation of Mr. Huggins, [ ] I think the Court will understand from that, from what the Court has seen, is that there is truly true remorse[.]" The trial court evidently recalled the tape from an earlier proceeding, perhaps at the trial of a co-defendant. At most, the record establishes that the trial court wanted to know if the State was going to offer the videotape in Huggins's trial. The State did not do so. The defendant neither objected when the prosecutor referred to the tape that was not in evidence nor offered the tape. Huggins did not object to the witness's testimony regarding statements made by Huggins during the interview that is apparently depicted on the videotape. (2) Generally, as a prerequisite to presenting a complaint for review, the record must show that the appellant made his complaint to the trial court. Tex. R. App. P. 33.1(a); see also Broussard v. State, 598 S.W.2d 873, 874 (Tex. Crim. App. 1980).

If the parties dispute whether a particular item of evidence was before the trial court at the time of its ruling, we may submit the dispute to the trial court for resolution. Amador v. State, 221 S.W.3d 666, 676-77 (Tex. Crim. App. 2007). In this case, there is no dispute about what the parties presented to the trial court during the trial. The videotape was not displayed to the trial court and no part of the videotape was admitted into evidence. Although the parties went off the record for a reason not apparent from the record, Huggins did not object to the procedure employed by the trial court. If the trial court took judicial notice off the record, Huggins was required to object on the record in order to preserve error for review. See McQueen v. State, 984 S.W.2d 712, 715 (Tex. App.--Texarkana 1998, no pet.); Wallace v. State, 822 S.W.2d 290, 293 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd). We overrule issue two and affirm the judgment.

AFFIRMED.

DAVID GAULTNEY

Justice

 

Submitted on August 23, 2007

Opinion Delivered December 5, 2007

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. A jury convicted Randall of capital murder in a separate trial. See Randall v. State, No. 09-06-198 CR, 2007 WL 2127227 (Tex. App.--Beaumont July 25, 2007, no pet. h.)(not yet reported).

2. The witness testified that in the course of the interview, Huggins admitted that the victim had taken money Huggins had given him to purchase narcotics, that Huggins pressed a gun against the victim's forehead, that the victim was bound and assaulted by several people, that the victim was taken from Huggins's tattoo parlor by two people who were working for Huggins, and that Huggins burned some of the victim's personal identification items.