Michael Kerr v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-04-00056-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL KERR, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

OPINION

Appellant Michael Kerr was convicted for burglary of a habitation with intent to commit assault and sentenced to ten years of imprisonment. Appellant raises four issues on appeal. We affirm.

Background

Appellant was charged by indictment with burglary of a habitation, a first-degree felony. See Tex. Pen. Code Ann. 30.02(a) (Vernon 2003). At trial, Appellant pleaded not guilty and tried his case to a jury.

According to the evidence at trial, the victim, Kelvin Muckleroy, was the father of La Charlsha Wood s daughter. Muckleroy knew Appellant because Wood and Appellant were friends. Appellant was married to Virginia Kerr. Muckelroy called Kerr and told her that her husband, Appellant, was having an affair with Wood. Kerr was upset upon hearing this information and confronted Appellant.

On July 22, 2003, Appellant, along with William Fields, went to Muckleroy s apartment and banged on the door. Muckleroy, Woods, and their daughter were in the apartment at the time. Muckleroy saw Fields through the peep hole and called 9-1-1. Appellant and Fields kicked down the door. Muckleroy testified that Fields aimed a pistol at him and Appellant carried a hammer. Appellant threatened to kill Muckleroy. He grabbed Muckleroy s hand, stretched out his arm, and smashed his finger. Both Fields and Appellant kicked and hit Muckleroy. Muckleroy said that Appellant never hit him with the hammer.

Officer Robert Plymail, a sergeant with the Tyler Police Department, responded to the 9-1-1 call. He found Appellant and Fields assaulting Muckleroy in a corner of Muckleroy s bedroom. Officer Plymail did not see Appellant carrying a weapon although he saw that Fields was holding a hammer. He also noticed a pistol on the floor and an unspent round of ammunition on the bed.

The jury found Appellant guilty of the lesser-included offense of burglary of a habitation with intent to commit assault, a second-degree felony. Appellant testified at the punishment phase. He denied owning the pistol and further denied knowing that Fields brought it to Muckleroy s apartment. He also denied hitting or kicking Muckleroy, but admitted that he held Muckleroy s hand and asked him if those were the fingers he used to call his (Appellant s) wife. Appellant denied threatening to kill Muckleroy, but conceded that he wanted to scare him so that he would stop calling his wife.

The jury sentenced Appellant to ten years of imprisonment. Appellant filed a motion for new trial alleging juror misconduct. The trial court did not hold a hearing on the motion, which was overruled by operation of law. Appellant now appeals his conviction and sentence.

Motion for New Trial Based on Juror Misconduct

In his first issue, Appellant contends the trial court erred by failing to hold an evidentiary hearing on his motion for new trial. In his second issue, Appellant contends that juror misconduct deprived him of a fair trial. To support his allegations of juror misconduct, Appellant attached to his motion for new trial an affidavit of one of the jurors. The juror stated in her affidavit that several jurors were discussing the case prior to deliberation, that one juror devised a formula for ensuring that Appellant served some amount of jail time before being released, that at least one juror read a newspaper article regarding the trial and discussed it with another juror, and that she (the affiant) felt pressured to reach a verdict and sentence that violated her conscience. Because these two issues are interrelated, we examine them together.

Applicable Law

A defendant may file a motion for new trial no later than thirty days after the date when the trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4(a). A motion for new trial is a prerequisite to presenting an issue on appeal only when necessary to adduce facts not in the record. Tex. R. App. P. 21.2; Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). A defendant does not have an absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). To obtain a hearing on a motion for new trial, a defendant must present the motion to the trial court within ten days of filing, unless the trial court in its discretion permits the motion to be presented and heard within seventy-five days of the date the court imposes or suspends sentence in open court. Tex. R. App. P. 21.6; Sexton v. State, 51 S.W.3d 604, 609 (Tex. App. Tyler 2000, pet. ref d).

Merely filing a motion for new trial does not satisfy the presentment requirement. Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998). The term present means the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court. Id. at 79. Examples of presentment include obtaining the trial court s ruling on the motion for new trial, the judge s signature or notation on a proposed order, or a hearing date on the docket. Id.

The trial court must rule on a motion for new trial within seventy-five days after the defendant was sentenced. Tex. R. App. P. 21.8(a). If the court does not rule within this time, the motion is deemed overruled by operation of law. Tex. R. App. P. 21.8(c).

Discussion

In the present case, the trial court sentenced Appellant in open court on November 20, 2003. Appellant timely filed a motion for new trial on December 12, 2003. Appellant s motion for new trial was necessary to preserve Appellant s juror misconduct complaint because the alleged misconduct was not in the record. See Tex. R. App. P. 21.2; Vidaurri, 49 S.W.3d at 886.

To complain on appeal that the trial court failed to hold an evidentiary hearing on his motion for new trial, Appellant must have presented his motion by December 22, 2003, the tenth day after he filed his motion for new trial. While the docket sheet reflects that Appellant s motion for new trial was filed on December 12, 2003, it does not reflect presentment. The record includes a computer-generated report from the office of Appellant s attorney, which reflects that on December 14, 2003, an unnamed person from the office called Amie and requested setting. Appellant contends this report establishes presentment. However, this report does not show that the trial court received actual notice of Appellant s motion. Compare Martinez v. State, 846 S.W.2d 345, 346 (Tex. App. Corpus Christi 1992, pet. ref d) (Defendant timely presented his motion for new trial to the trial court as evidenced by trial court s consideration of the motion and by its order overruling it), with Enard v. State, 764 S.W.2d 574, 575 (Tex. App. Houston [14th Dist.] 1989, no pet.) (Defendant did not timely present his motion for new trial to the trial court because there was nothing in the record indicating the trial court was on notice that defendant desired a hearing to present evidence supporting his motion).

The record before us does not contain an order setting a hearing date or denying the motion. The computer-generated report fails to show that the court had actual notice of the motion. Appellant twice requested a setting on the motion for new trial. However, both requests were filed after the ten-day period for presentment, and the record does not show that the trial court extended the time for presentment and hearing as permitted by Rule 21.6. Therefore, there is nothing in the record reflecting that Appellant presented his motion to the trial court within the prescribed time period. Consequently, Appellant did not preserve this issue for review.

Moreover, even if Appellant had preserved error, his challenge to the verdict based on the juror s affidavit would fail. A juror may not testify by way of testimony or affidavit as to any matter or statement occurring during the jury s deliberation. Tex. R. Evid. 606(b); // Hicks v. State, 15 S.W.3d 626, 630 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). Therefore, even if the trial court had conducted a hearing, this type of evidence would not have been admissible. Based upon our review of the record, we cannot say that the trial court erred by failing to hold an evidentiary hearing on Appellant s motion for new trial. Because the juror misconduct is not apparent from the record, we cannot conclude that Appellant was deprived of a fair trial. Accordingly, Appellant s first and second issues are overruled.

Impeachment

In his third issue, Appellant contends the trial court committed reversible error in not allowing him to impeach the testimony of the victim with evidence of his prior criminal history. Appellant asserts that Muckleroy left a false impression with the jury that the extent of his being in trouble with the law was his convictions for assault and theft. Appellant further asserts that the State opened the door to all of Muckleroy s encounters with law enforcement by creating the impression that the two crimes for which he was convicted represent the only trouble he has had with the police.

Applicable Law and Discussion

Admission of evidence is a matter within the trial court s discretion. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). We review evidentiary rulings for an abuse of discretion. Id. at 390 (op. on reh g). When attacking the credibility of a witness, evidence of prior criminal convictions shall be admitted only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value outweighs its prejudicial effects. Tex. R. Evid. 609. However, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988); Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986); Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App. 1972). Where the witness creates a false impression of law-abiding behavior, he opens the door to his otherwise irrelevant past criminal history, and opposing counsel may expose the falsehood. Prescott, 744 S.W.2d at 131; Hammett, 713 S.W.2d at 105; Ochoa, 481 S.W.2d at 850. In this case, Muckleroy admitted that he had been in trouble with the law before. In response to the prosecutor s specific questions, he told the jury that he had been convicted of both assault and theft. Appellant could have introduced these convictions for impeachment purposes under Rule 609. See Tex. R. Evid. 609. The only circumstance under which the fact of a misdemeanor conviction not involving moral turpitude, an arrest, indictment, or other mere accusations may be admitted on the issue of a witness s credibility is when the witness makes a blanket false statement concerning his prior conduct, such as a statement that he has never been in trouble with the law. Bell v. State, 620 S.W.2d 116, 121 (Tex. Crim. App. 1980). Because Muckleroy did not respond falsely by denying that he previously had been in trouble with the police, he did not open the door to impeachment by his prior criminal record. Theus v. State, 845 S.W.2d 874, 878-79 (Tex. Crim. App. 1992). Therefore, we conclude the trial court did not err in preventing Appellant from inquiring into Muckleroy s criminal history. Consequently, Appellant s third issue is overruled.

Relevance of Evidence Admitted at Punishment

In Appellant s fourth issue, he asserts the trial court erred in allowing the State to present evidence that was not relevant in the punishment phase; specifically, that the gun used during the commission of the offense was operable. In his brief, Appellant also asserts that the testimony complained of was evidence of an inadmissible extraneous offense. However, Appellant did not make an extraneous offense objection at trial and, therefore, failed to preserve the issue for our review. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (objection must be specific and timely to preserve error). Thus, we will address only Appellant s relevance argument.

Applicable Law

The trial court has broad discretion in determining admissibility of evidence at the punishment phase of trial. Cooks v. State, 844 S.W.2d 697, 735 (Tex. Crim. App. 1992). Generally, the jury is entitled to have before it all possibly relevant information about the individual defender whose fate it must determine. Id. (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976)).

Texas Code of Criminal Procedure article 37.07, section 3(a) governs the admissibility of evidence during the punishment phase of a non-capital trial. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). The statute explicitly allows the trial court to admit any matter deemed relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 2004- 2005). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Questions of admissibility of evidence are reviewed for an abuse of discretion. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).

Discussion

During the guilt/innocence phase of trial, Officer Dale Feuquay of the Tyler Police Department testified that upon arriving at Muckleroy s apartment, he found Officer Plymail in the bedroom with Muckleroy, Fields, and Appellant. Officer Plymail had his foot on a Larson 380 pistol. The pistol had one round in the chamber and three more rounds loaded in the magazine. Officer Feuquay recovered the pistol and took it to his patrol car as quickly as possible to get it out of the room.

The State called Wade Thomas to testify during the punishment phase of the trial. Thomas is a criminalist with the Texas Department of Public Safety Laboratory. His primary job function is examining firearms. Thomas testified that he examined the pistol that was found at Muckleroy s apartment. Based on his examination, Thomas informed the jury that the pistol was capable of being fired. Appellant objected to the testimony based on relevance since the jury did not make a finding that Appellant possessed a deadly weapon. The trial court overruled his objection.

The test for relevancy is much broader during the punishment phase because it allows a jury to consider more evidence in exercising its discretion to assess punishment within the appropriate range. See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op. on reh g). In Erazo, the court reiterated that, because the jury s decision in a non-capital case does not involve a discrete finding, the relevance of evidence cannot be determined by a deductive process, but rather is a function of policy. Erazo, 144 S.W.3d at 491. The policies that operate during the punishment phase of a non-capital trial include (1) giving complete information to the jury to allow it to tailor an appropriate sentence, (2) the rule of optional completeness, and (3) whether the appellant admits the truth during the sentencing phase. Id. As a result, relevance during the punishment phase of a non-capital trial is determined by what is helpful to the jury. Id.

Woods testified that Appellant had told her that he was going to get Muckleroy. She also said that Appellant showed her a gun that he kept in the glove compartment of his truck. Further, Woods testified that Appellant was carrying the gun as he and Fields broke into the apartment. While the jury did not find that Appellant possessed a deadly weapon, the trial court could have reasonably believed that it would be helpful for the jury to know whether the pistol was capable of being fired since it was available for Appellant s use in the midst of a volatile situation. We cannot conclude that the trial court abused its discretion. Consequently, Appellant s fourth issue is overruled.

Disposition

Having overruled Appellant s four issues, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered February 10, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)