Anthony Hurst v. The State of Texas--Appeal from 27th District Court of Bell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00428-CR
Anthony Hurst, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 44,077, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of capital murder. Act of April 16, 1985, 69th Leg., R.S., ch. 44, 1, 1985 Tex. Gen. Laws 434 (Tex. Penal Code Ann. 19.03(a)(2), since amended). The State having waived the death penalty, the district court assessed punishment at imprisonment for life.

On the night of September 5, 1993, Nathaniel Tabron drove to an apartment complex in Killeen to purchase cocaine. While Tabron was negotiating in the parking lot with a drug dealer named Red, Marvin Clair and Derick Posey approached Tabron's car. Clair pointed a BB pistol at Tabron's head and attempted to seize the cash in Tabron's hand. Posey came to Clair's aid when Tabron resisted. As the three men struggled, appellant walked up and fatally shot Tabron with a .25 caliber pistol.

Appellant contends the evidence is legally insufficient to sustain his conviction for capital murder. In determining the legal or constitutional sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant does not deny that there is ample evidence under this standard to prove that he killed Tabron and to prove that Clair and Posey were robbing Tabron when the shooting took place. Appellant urges, however, that the State did not prove that he was acting with Clair and Posey and therefore failed to prove that he killed Tabron in the course of committing or attempting to commit robbery.

The court's charge included an instruction on the law of parties and authorized appellant's conviction both as a principal and a party to the offense. Tex. Penal Code Ann. 7.01, 7.02 (West 1994); see Livingston v. State, 542 S.W.2d 655, 660 (Tex. Crim. App. 1976) (law of parties applies to prosecution for capital murder). Celester German testified that he spent the day of September 5 at the apartment complex with, among others, appellant, Clair, and Posey. About two hours before the shooting, German overheard appellant and Clair saying "they needed some money" and "they were going to do a robbery." From this testimony, and from the circumstances of the offense itself, the jury could rationally infer that appellant, Clair, and Posey conspired to commit robbery and that appellant shot Tabron in furtherance of the conspiracy. See Tex. Penal Code Ann. 15.02(b) (West 1994); Farrington v. State, 489 S.W.2d 607, 609 (Tex. Crim. App. 1972) (conspiracy may be inferred from acts of parties). The jury could rationally find beyond a reasonable doubt that appellant was a participant in the robbery during which Tabron was murdered. Green v. State, 682 S.W.2d 271, 285-86 (Tex. Crim. App. 1984). When viewed in the light most favorable to the verdict, the evidence supports a finding that appellant intentionally murdered Tabron in the course of and as a party to the robbery. Point of error four is overruled.

In point of error three, appellant contends the district court erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 19.03, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, 1, 1973 Tex. Gen. Laws 1122, 1124 (Tex. Penal Code Ann. 19.04, since amended) (hereafter "section 19.04"). At the time of this offense, voluntary manslaughter was a lesser included offense of capital murder if there was some evidence that the murder was committed under the immediate influence of sudden passion arising from an adequate cause. Sec. 19.04(a); Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989). "Sudden passion" means passion directly caused by and arising out of provocation by the person killed. Sec. 19.04(b).

As appellant admitted to the district court when he requested the voluntary manslaughter charge, there is no evidence of sudden passion in this case because there is no evidence of provocation by Tabron. See Adanandus v. State, 866 S.W.2d 210, 231-32 (Tex. Crim. App. 1993) (victim's attempt to defend against criminal assault cannot constitute adequate cause from which sudden passion may arise). Moreover, there is no evidence that appellant was in the immediate grip of anger, rage, resentment, or terror so great as to render him incapable of cool reflection when he fired the fatal shot. Sec. 19.04(c). Appellant relies on testimony that allegedly supports the conclusion that he was acting independently when he shot Tabron. While this evidence may support a charge on the lesser included offense of murder, which was given, it does not raise the issue whether appellant was under the influence of sudden passion arising from an adequate cause when he fired the fatal shot. The district court did not err by refusing to instruct on voluntary manslaughter. Point of error three is overruled.

Clair and Posey gave statements to the police in which they implicated each other and appellant in the robbery and murder of Nathaniel Tabron. Appellant did not give a statement. None of the three defendants testified at trial. In two related points of error, appellant contends the district court erred by refusing to sever his prosecution from that of Clair and Posey and by admitting his codefendant's written statements in evidence at the joint trial.

A criminal defendant's right to confront the witnesses against him is violated by the admission in evidence of a confession given by his nontestifying codefendant that incriminates both defendants. Bruton v. United States, 391 U.S. 123, 135-36 (1968); see Pointer v. Texas, 380 U.S. 400, 403 (1965) (Fourteenth Amendment incorporates confrontation right). The Confrontation Clause is not violated, however, if the nontestifying codefendant's confession is redacted to eliminate any reference to the other defendant and the jury is instructed not to consider the codefendant's confession in determining the other defendant's guilt. Richardson v. Marsh, 481 U.S. 200, 211 (1987); McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978); Proctor v. State, 871 S.W.2d 225, 230 (Tex. App.--Eastland 1993, pet. granted).

Appellant filed motions to suppress the confessions given by Clair and Posey in their entirety or, alternatively, "those portions which refer to and implicate this Defendant in the offense." Ultimately, two statements given to the police by Posey were admitted in evidence after being edited to remove, to the district court's satisfaction, incriminating references to appellant and Clair. One statement by Clair was admitted after being similarly edited to omit references to appellant and Posey. At trial, appellant stated that he had no objection to Clair's redacted statement (state's exhibit 22) and thus waived any error in its admission. James v. State, 772 S.W.2d 84, 97 (Tex. Crim. App. 1989). The court instructed the jury not to consider the confessions of Clair and Posey as evidence against appellant.

Appellant contends that Posey's statements tended to incriminate him even after redaction and therefore their admission violated the Bruton rule. As admitted, Posey's second statement (state's exhibit 21) said: "I heard [blank space] say that he was going to jack someone. [R]ight after that [blank space] and [blank space] walked to a corner by themself [sic]. After their little talk, [blank space] said he was going to jack someone again." Appellant argues that because Posey was being tried with appellant and Clair, it was inferable that the persons referred to in the redacted statement were appellant and Clair. In Marsh, however, the Supreme Court held that the Bruton rule applies only to a confession that expressly incriminates another defendant. If the confession incriminates another defendant only by inference, a proper limiting instruction is sufficient to avoid a Sixth Amendment violation. Marsh, 481 U.S. at 208-09. Because Posey's second statement, after redaction, did not expressly refer to or incriminate appellant and because a limiting instruction was given, the admission of exhibit 21 did not violate Bruton.

A closer question is presented by Posey's first statement (state's exhibit 20) because every reference to appellant was not removed before the statement was admitted in evidence. The district court permitted this portion of the statement to remain in the exhibit: "The last time I saw Anthony was when I walked over to his house two days after the shooting. I heard the law went to Anthony's house, but when they got there, Anthony was gone." The State argues that this passage does not incriminate appellant and therefore Bruton was not violated by permitting it to remain.

Bruton error can be harmless. Schneble v. Florida, 405 U.S. 427, 430 (1972); Wilder v. State, 583 S.W.2d 349, 357-58 (Tex. Crim. App. 1979). Although exhibit 20 referred to appellant by name, the reference was not expressly incriminating. The reference to the "last time I saw Anthony" suggests that Posey saw appellant earlier, however, and the jury could infer that it happened at the scene of the shooting. The possibility that the jury might draw this possibly incriminating inference was cured by the court's limiting instruction. Marsh, 481 U.S. at 208-09. Given the other evidence of appellant's involvement in the offense, the error, if any, in admitting exhibit 20 was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2).

Appellant also argues that to the extent Posey's statements were against appellant's interest, they were inadmissible hearsay. Cofield v. State, 891 S.W.2d 952, 955-56 (Tex. Crim. App. 1994); Bass v. State, 527 S.W.2d 556, 558 (Tex. Crim. App. 1975). As previously discussed, however, the statements were redacted to remove all expressly incriminating references to appellant and the remaining reference to appellant in exhibit 20 was, at most, harmless error.

In summary, appellant waived any error in the admission of Clair's redacted statement, exhibit 22. For the reasons stated, Posey's second redacted statement, exhibit 21, was not inadmissible hearsay and its admission was not Bruton error. Posey's first redacted statement, exhibit 20, also was not inadmissible hearsay and any Bruton error was harmless. Point of error two is overruled.

Under Bruton, a defendant is entitled to a severance if it is not possible to redact a nontestifying codefendant's confession so as to remove any incriminating reference to him. Ex parte Mitchell, 608 S.W.2d 915, 917 (Tex. Crim. App. 1980); McMahon, 582 S.W.2d at 793; Tex. Code Crim. Proc. Ann. art. 36.09 (West 1981). Because appellant does not bring forward any Bruton error with respect to the statements of Clair and Posey, or at least none that was harmful to appellant, it follows that no severance was required to avoid Bruton error.

A severance is also required when codefendants have conflicting defense strategies, as when one defendant is entitled to comment on the silence of the other. Webb v. State, 763 S.W.2d 773, 775 (Tex. Crim. App. 1989). Appellant argues that counsel for Clair referred to appellant's silence when he questioned a police officer as follows:

 

Q. Investigator Ortiz, from roughly September 28, 1993 until January 21 of '94 were you and other members of the Killeen Police Department actively looking for Anthony Hurst?

 

A. Yes, sir.

 

Q. As a suspect in this capital murder offense?

 

A. Yes, sir.

 

Q. And tell the jury what efforts you made to locate him.

 

A. Going over to different people's homes, acting on tips that I had received from different parties. I would follow up those leads, try to -- try to find him based on the tips that we would get from people calling the police department where he might be, et cetera.

 

Q. He never voluntarily came in and talked with you about any of this?

A. No, sir.

 

Appellant voiced no objection to this questioning.

Appellant also complains that the prosecutor referred to his silence when he objected to the admission of Clair's full, unredacted statement: "Your Honor, we would object for the reasons made obvious to the Court outside the presence of the jury that that would be a violation of the Bruton rule. It would incriminate other defendants besides Clair." Again, appellant did not object.

A defendant seeking a severance pursuant to article 36.09 has the burden of timely filing a motion and offering evidence to support his allegations. Robinson v. State, 449 S.W.2d 239, 240 (Tex. Crim. App. 1969). At the hearing on appellant's motion to sever, appellant asserted but offered no evidence to prove that his codefendants would pursue a defense strategy antagonistic to appellant. When the incidents of which appellant complains occurred, he did not object, request an instruction to disregard, or move for a severance. Appellant urges that the district court was obligated to order a severance on its own motion, citing Goode v. State, 740 S.W.2d 453 (Tex. Crim. App. 1987). Goode is both factually and legally distinguishable and does not support the proposition for which it is cited. The Court of Criminal Appeals has repeatedly stated that a defendant must request a severance under article 36.09. McMahon, 582 S.W.2d at 793; Moore v. State, 504 S.W.2d 904, 905 n.1 (Tex. Crim. App. 1974); Carey v. State, 455 S.W.2d 217, 223 (Tex. Crim. App. 1970); Robinson, 449 S.W.2d at 240.

The one isolated question by Clair's counsel does not constitute or prove the existence of a "conflicting defense strategy." Any harm flowing from this question could have been cured by an instruction to disregard. The improper remark by the prosecutor was not a foreseeable result of trying appellant and his codefendants jointly, and this error also could have been cured by an instruction to disregard. The district court has not been shown to have erred by overruling appellant's motions to sever. In the absence of any timely objection or request for relief, the two reverences to appellant's silence of which appellant complains do not present reversible error. Point of error one is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: May 17, 1995

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