Opinion
NO. 01-15-00972-CR
08-24-2017
ADRIAN AGUILAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 1370058
MEMORANDUM OPINION
A jury found appellant, Adrian Aguilar, guilty of the offense of murder and assessed his punishment at confinement for ninety-nine years. In six issues, appellant contends that his trial counsel provided him with ineffective assistance and the trial court erred in limiting his cross-examination of a State's witness, admitting into evidence a photograph and victim-impact and hearsay testimony, overruling his objection to a portion of the State's closing argument, and as a result of its cumulative errors, violating his due process rights.
See TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2011).
We affirm.
Background
Joe Aguilar, Sr. ("Joe Sr.") testified that on the morning of December 4, 2012, he, while he was driving a car and with his wife, Yolanda Aguilar, the complainant, as his passenger, saw George Aguilar ("George"), appellant's brother, turn his truck onto the same street on which he was driving. As Joe Sr. proceeded to drive behind George's truck, George began driving "real slowly," eventually stopping his truck in the middle of the street. George then stuck his middle finger up at Joe Sr. and "hollered," "Come on, you son-of-a-bitch, I'm going to fuck you up." This frightened the complainant, who instructed Joe Sr. to drive home.
Later that morning, Joe Sr. and the complainant drove to pick up their daughter-in-law, Kimberley Aguilar ("Kimberley"), to take her to work. When they arrived at Kimberley's home, she and her son, Joe Aguilar, III ("Baby Joe"), got into the car. As Joe Sr. then drove Kimberley to work, a "Jeep" began following behind his car. When Joe Sr. made a turn, the Jeep "continued coming . . . behind [him]." At that point, Joe Sr. "knew [that] something was wrong" because of the way that the Jeep was following him. For instance, when Joe Sr. moved his car to the left lane, the Jeep did the same. And then when he returned his car to the right lane, the Jeep again did the same. The complainant said to Joe Sr., "I believe that's George behind [us]."
Joe Sr. explained that when he initially looked into his rearview mirror while driving, he saw two people sitting in the front seat of the Jeep. As he looked back at the Jeep a second time, however, he saw only the driver. The other person that he had previously seen was no longer in the front-passenger seat. When Joe Sr. looked in his rearview mirror for a third time, he could no longer see the Jeep. He then heard "pop, pop, pop, pop, pop." At that point, the Jeep was "[s]ide-by-side" with his car. As the Jeep "sped up" to pass his car, Joe Sr. saw George in the driver's seat and appellant, who was holding a firearm and shooting, in the back seat of the Jeep, with his body half-way out the window. Joe Sr. explained that he clearly saw appellant's face and that appellant held the firearm "straight." When appellant fired the firearm at Joe Sr.'s car, he heard "pow, pow, pow, pow, pow."
Before the day of the shooting, Joe Sr. knew appellant's name and his face. And Joe Sr. opined that appellant had fired "more than four" shots at his car. After appellant had fired the shots, Joe Sr. felt the complainant's head on his chest, and she was unresponsive. When he realized that he had blood on his shirt, he stopped his car in a parking lot. While he waiting for emergency assistance to arrive, Joe Sr. held his wife, although he "knew she was gone."
Kimberley testified that when Joe Sr. and the complainant arrived to pick her up for work, she and Baby Joe got into Joe Sr.'s car. As they drove to Kimberley's workplace, Joe Sr. sat in the driver's seat of the car, the complainant sat in the front-passenger seat, Kimberley sat behind the complainant in the back seat, and Baby Joe sat on the left side of the car, in the back seat behind Joe Sr.
During Kimberley's testimony, the trial court admitted into evidence, over appellant's objection, State's Exhibit No. 161, a photograph of Baby Joe as "he looked at the time of the shooting."
Kimberley explained that when Joe Sr. made a turn, she realized that something was "wrong." The complainant then said to Joe Sr. that "she believed [that they] were being followed" by George. Suddenly, a "Jeep" "pulled up on the left side" of Joe Sr.'s car and Kimberley "heard . . . gunshots" coming from the Jeep. She immediately ducked down and placed her body over Baby Joe in order to protect him. Kimberley opined that "three or four" shots had been fired; however, she did not see who was inside the Jeep or who was shooting.
After the shooting stopped, the complainant did not respond when Kimberley asked "if everybody was okay." As Joe Sr. turned the car into a parking lot, Kimberley saw the complainant's body fall over onto him and "blood coming from her head." At the time, Baby Joe was crying and scared, and Kimberley called for emergency assistance.
Elaine Elda Garza, the niece of the complainant and Joe Sr., testified that she had previously been in a relationship with George and had lived with him in a trailer home next door to appellant. When Garza, on the morning of December 4, 2012, drove George's "Jeep" over to her mother's home for breakfast, George also left their trailer home to drive around in his truck. When Garza returned home, George was back at the trailer home and appeared to be "very upset." According to George, he had, that morning, "r[u]n into" Joe Sr., who had "call[ed] him names and stuff." George then left the trailer home and went next door to appellant's home. When he returned with appellant, Garza made breakfast for them. After breakfast, George told Garza that he was "going to town," and he left with appellant in his Jeep. Sometime later, Garza's mother telephoned her to ask whether George could pick her up from a doctor's appointment. When Garza subsequently telephoned George, he told her that "he was somewhere in town still" and he could pick up her mother from her doctor's appointment.
Garza explained that later that day, her mother telephoned her again to inform her that the complainant had been shot and killed. After that telephone call, George and appellant returned home in the Jeep. When George came into the trailer home, he told Garza that he and appellant were "going to the store" and they would "be back." He and appellant then left the trailer park in George's "Buick."
Garza noted that she did not specifically see appellant return to his trailer home when George returned home.
Subsequently, George telephoned Garza from a nearby gas station and asked her to come and pick him up. When she arrived at the gas station driving the Jeep, George asked her to drive back to their trailer home to "get the bullets out of the house." When she arrived back at their trailer home, the doors were locked, and she could not get inside. Garza then telephoned George, who told her to "come back" to the gas station. As Garza was driving the Jeep back to the gas station, she saw law enforcement officers driving behind her. Upon her arrival at the gas station, Garza parked the Jeep and exited it as instructed by the officers. George then emerged from inside of the gas station.
Garza explained that George had told her that appellant had "dropped him off" at the gas station and left, but he did not tell her where appellant went. And Garza noted that appellant never returned to his trailer home after the shooting of the complainant.
Pasadena Police Department ("PPD") Officer C. Shafer testified that on December 4, 2012, he was on duty in his patrol car when he heard a radio call about "a shooting that had just occurred." He proceeded to the area and met with Joe Sr. Shafer saw the complainant "sitting in the passenger side front seat" and "slumped over onto [Joe Sr.]'s right shoulder." Joe Sr. then told Shafer, "She's gone." The complainant appeared to have "head injuries," and Shafter did not see any sign that she was alive. He noted that Kimberley and Baby Joe were also inside the car.
In regard to who had shot the complainant, Joe Sr. told Officer Shafer that George was "the driver" of a "Jeep" and appellant had "done the shooting." "EMS records," admitted into evidence during Shafer's testimony, state that the complainant had been shot in the head, suffered a "[t]raumatic [b]rain [i]njury" and "[c]ardiac [a]rrest," and was pronounced "[d]ead at [the] [s]cene."
PPD Detective C. MacGregor testified that on December 4, 2012, he was dispatched to the scene of the shooting, where Joe Sr. informed him that George and appellant were responsible. MacGregor noted that appellant was not located or arrested until September 30, 2013.
PPD Detective R. Sorrell testified that while on duty in his patrol car on December 4, 2012, he heard a radio call about a shooting and a description of a "Jeep." Upon learning the location of the Jeep, Sorrell drove to a trailer park and subsequently followed the Jeep to a gas station. When the Jeep stopped, Sorrell exited his patrol car and instructed the driver of the Jeep to also exit. A woman then exited the Jeep, and George "came from around the backside of the . . . gas station," walking towards Sorrell and other law enforcement officers with his hands in the air.
Dr. Dwayne Wolf, deputy chief medical examiner for the Harris County Institute of Forensic Sciences, testified that he supervised the autopsy performed on the complainant, who died on December 4, 2012. An initial examination of her body revealed that she had suffered "multiple gunshot wounds," which were located primarily on the left side of her body. One gunshot wound, designated as "Gunshot Wound A," showed that a "bullet [had gone] into [her] skull, passed all the way through [her] brain and the central part of the cerebrum," "perforated through the skull on the right side of the [complainant's] head[,] and then exited the scalp on the right side." Wolf explained that this injury to the complainant was "immediately life-threatening" and an "immediately incapacitating wound." Wolf noted that the cause of her death was "[m]ultiple gunshot wounds," a firearm is a deadly weapon, and shooting someone with a firearm is an act clearly dangerous to human life and one capable of causing serious injury or death.
In total, Wolf testified about six gunshot wounds that the complainant had sustained.
Appellant testified that on December 4, 2012, he woke up and "hung around [his] house for a little while." George, who lived next door to him in the trailer park, then came over and asked for "a hand." Appellant and George then left the trailer park and drove "to the trailer park where [they had] previously lived" in order to "pick up" a "red Ford Ranger full of lawn equipment." Upon their arrival at the other trailer park, Garza called George and asked him to pick up her mother from a doctor's appointment. Appellant subsequently went with George to pick up Garza's mother and take her back to her home, which was located in the same trailer park as the Ford Ranger. Once Garza's mother was settled inside of her home, appellant "picked up" the Ford Ranger and drove it "straight home," with George following behind him. Upon returning to his trailer home, appellant "went inside, sat down, drank a cup of coffee," and "fell asleep."
Appellant explained that he was later "awaken[ed] by [George] and [Garza] knocking on the door" to his trailer home. Garza told appellant that the complainant had been shot and her family was "accusing [him] and George of doing" it. Appellant told George and Garza, "You know I didn't do this, I don't know anything about it, I don't want to be involved in any kind of way." Appellant then decided "to take a trip and leave" because he "didn't want to be involved in any kind of way" and he "fear[ed] for [his] life." Initially, appellant "camp[ed]" at a lake outside of Austin for "a week or two." He then went to Louisiana because he wanted to "stay away" until "everything ha[d] been settled." Law enforcement officers arrested appellant in Louisiana on September 30, 2013.
Appellant further testified that he was in the "Jeep" that George owned on December 4, 2012, George kept a shotgun in his home, and George had "problems" with the complainant's family. Appellant explained that when he left his trailer home after the shooting, "all of [his] stuff" remained there and he left "with very little." To get to the lake, appellant drove George's "Buick." He, however, left the Buick at a store in Austin after it "overheated." And appellant could not remember how he got to Louisiana.
Cross-Examination
In a portion of his first issue, appellant argues that the trial court, during the guilt phase of trial, erred in limiting his cross-examination of Joe Sr. about "a deadly feud between [appellant's] family" and the complainant's family because such evidence "call[s] into question [Joe Sr.]'s credibility" and "affect[s] [appellant]'s moral culpability for the offense." See TEX. R. EVID. 613(b).
Although appellant references the Confrontation Clause of the Sixth Amendment in his brief, he stated at oral argument and in his reply brief that he is not raising a Sixth Amendment issue. Instead, appellant is raising an "evidentiary error."
We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to exclude evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (internal quotations omitted); Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to the case. See De La Paz, 279 S.W.3d at 344; Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
Texas Rule of Evidence 613(b) allows a party to impeach a witness by proof of "circumstances or statements" showing bias or interest on the part of such witness in specified circumstances and subject to other evidentiary rules. TEX. R. EVID. 613(b); see also Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1998) (addressing former rule 612(b), now rule 613(b)); Requeno-Portillo v. State, No. 01-10-00242-CR, 2011 WL 3820747, at *3 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, pet. ref'd) (mem. op., not designated for publication) ("Rule 613(b) . . . recognizes the right of litigants to cross-examine witnesses on the issues of bias and prejudice.").
At trial, appellant sought to cross-examine Joe Sr. about an incident that occurred on September 22, 2012 between Joe Sr.'s son, Ronnie Aguilar ("Ronnie"), and George (the "September 22 incident") for purposes of "[c]ompleteness."
At trial, appellant's counsel appeared to initially indicate that Joe Sr. was also involved in the September 22 incident. However, he later clarified that he had been mistaken and the September 22 incident involved only Ronnie and George.
[Appellant's counsel]: If the State is allowed to go into the events of the morning of December 4th, 2012 that occurred around 8:30 to 10 o'clock in the morning between George . . . and Joe [Sr.] in which [appellant] was not present, then I would offer and proffer as background evidence to fill in the context of what happened that morning the event that occurred on September 22nd, 2012 as reported in Pasadena Police Department No. 12-23009, in which . . . Ronnie . . . w[as] following George . . . , and Ronnie . . . fired two shots into George['s] . . . pickup blasting out the back window of the pickup.
Subsequently, . . . Ronnie . . . w[as] arrested as [a] suspect[]. . . . Ronnie was [indicted] and pled guilty to discharging a firearm. And if they're going into what happened between George and Joe [Sr.] when [appellant] is not there, I think I should be able to go into that events that happened just three -- less than three months before.
THE COURT: Your argument is what?
[Appellant's counsel]: I'm sorry?
THE COURT: What is your argument?
[Appellant's counsel]: My argument is that it goes -- further develops the background of what happened on December 4th in the morning hours between George and Joe [Sr.] to explain that.
THE COURT: You want it all to come in so that you can claim optimum -- what's that word?
[Appellant's counsel]: Completeness.
THE COURT: Completeness.(Emphasis added.) Appellant then offered, and the trial court admitted, the offense report from the September 22 incident for "Bill of Exception Purposes Only." The trial court ruled that unless appellant could "tie . . . together" the September 22 incident and the shooting of the complainant, it would not permit him to question Joe Sr. about the September 22 incident.
[Appellant's counsel]: I would not bring that in if they didn't bring in the earlier morning thing.
Later, prior to cross-examining Joe Sr., appellant's counsel again asked the trial court to allow him to question Joe Sr. about the September 22 incident, stating:
[Appellant's counsel]: . . . After [Joe Sr.'s] testimony when they introduced the events that happened in the early hours of the morning of December 4th, I'd reoffer my proffer which I made, two months before that on September 22nd . . . [Ronnie] w[as] following George . . . and . . . shot George['s] . . . pickup and later was convicted of deadly conduct out of that incident. . . .
I'd just reoffer that as making it a complete -- to complete the story, and also that it would be unfair for the State to introduce George and Joe [Sr.]'s verbal confrontation that morning when [appellant] wasn't present without my going into the other event.
. . . .
[Appellant's counsel]: And I can't go into that, I guess is the ruling.(Emphasis added.)
[THE COURT]: No.
Notably, at neither time did appellant argue that the trial court's refusal to permit cross-examination of Joe Sr. regarding the September 22 incident violated Texas Rule of Evidence 613(b). Instead, appellant only asserted that he was entitled to cross-examine Joe Sr. about the September 22 incident on the basis of "[c]ompleteness."
Except for complaints involving fundamental constitutional systemic requirements, "all other complaints based on a violation of both constitutional and statutory rights are waived by [a] failure to comply with [Texas] Rule [of Appellate Procedure] 33.1." Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (internal quotations omitted); see also TEX. R. APP. P. 33.1(a); Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013) ("Most appellate complaints must be preserved by a timely request for relief at the trial level."); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). In order to preserve error for appellate review, the record must show that a party made a "timely request, objection, or motion" to the trial court with sufficient specificity to apprise the trial court of his complaint. TEX. R. APP. P. 33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Ibarra, 11 S.W.3d at 197. Simply put, it is not enough to tell the trial court that certain evidence is admissible; the proponent of the evidence must tell the trial court why the evidence is admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Further, it is well settled that the legal basis of a complaint raised on appeal may not vary from the complaint raised at trial. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Heidelberg, 144 S.W.3d at 537; Smith v. State, 236 S.W.3d 282, 291 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). It is imperative to avoid forfeiting a complaint on appeal that a party "let the trial [court] know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the [trial court] to understand him at a time when the [court] is in the proper position to do something about it." Pena, 285 S.W.3d at 464 (internal quotations omitted).
Although appellant now complains that the trial court's refusal to allow him to cross-examine Joe Sr. about the September 22 incident constituted "evidentiary error," he never presented the trial court with an opportunity to consider his argument that such questioning was permissible under rule 613(b). See Reyna, 168 S.W.3d at 177 (appellate issue involving proffer of evidence must still satisfy preservation-of-error requirements and to preserve error regarding exclusion of evidence, party must not only tell judge evidence admissible, but also explain why); Stoval v. State, No. 01-07-00594-CR, 2008 WL 2854239, at *3 (Tex. App.—Houston [1st Dist.] July 24, 2008, pet. ref'd) (mem. op., not designated for publication) ("[Defendant] did not argue to the trial court that he was relying on Rule 613(b) as a basis for eliciting testimony from [witness] that [witness] had lied to [defendant] during [his] interrogation. [Defendant] also did not request the trial court to rule on the admissibility of [his] interrogation tape as impeachment to show [witness]'s bias or interest."); Johnson v. State, 963 S.W.2d 140, 142 (Tex. App.—Texarkana 1998, pet. ref'd) (explaining theory of admissibility must be presented to trial court); see also Lubojasky v. State, No. 03-10-00780-CR, 2012 WL 5192919, at *5 (Tex. App.—Austin Oct. 19, 2012, pet. ref'd) (mem. op., not designated for publication) (although on appeal defendant argued "he should have been allowed to question [witness] pursuant to Rule 613(b)," at trial he "did not request to proceed under Rule 613(b)"); Loredo v. State, 32 S.W.3d 348, 351 (Tex. App.—Waco 2000, pet. ref'd) (cross-examination complaint not preserved where defendant "never asked [trial court] to rule on the admissibility of the [evidence] as impeachment to show motive or bias").
Appellant argued to the trial court that he should be permitted to cross-examine Joe Sr. about the September 22 incident only on the basis of "[c]ompleteness." See Pena, 285 S.W.3d at 464 (complaint on appeal must comport with complaint made at trial); Reyna, 168 S.W.3d at 177 ("The issue . . . [is] whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal."); Dixon, 2 S.W.3d at 273 (concluding objection under rule 608(b) did not preserve complaint under former rule 612(b), now rule 613(b)); Agbogwe v. State, 414 S.W.3d 820, 829-30 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also Alfaro v. State, 224 S.W.3d 426, 434 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (concluding trial court "never had the opportunity to rule upon th[e] rationale that [defendant] now presents on appeal" (internal quotations omitted)).
In his post-submission letter to the Court, appellant argues that he preserved his complaint that the trial court erred in limiting his cross-examination of Joe Sr. about the September 22 incident because "the trial court granted the [S]tate's motion in limine and [he] offered evidence and obtained an adverse ruling." See Poore v. State, 524 S.W.2d 294, 295 (Tex. Crim. App. 1975). However, as noted above, "[w]hether a party's particular complaint is preserved [also] depends on whether the complaint on appeal comports with the complaint made at trial." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); James v. State, 506 S.W.3d 560, 566-67 (Tex. App.—Houston [1st Dist.] 2016, no pet); Agbogwe v. State, 414 S.W.3d 820, 829-30 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Here, appellant's complaint does not.
Accordingly, we hold that appellant has not preserved his complaint that the trial court erred, in violation of rule 613(b), in limiting his cross-examination of Joe Sr. about "a deadly feud between [appellant's] family" and the complainant's family. See Mendez, 138 S.W.3d at 338-39; Unkart, 400 S.W.3d at 98; Ibarra, 11 S.W.3d at 197; see also James v. State, 506 S.W.3d 560, 566-67 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (to preserve error, defendant must make timely objection and "issue on appeal must comport with the objection made at trial"); Meeks v. State, No. 03-03-00509-CR, 2005 WL 1489593, at *2-3 (Tex. App.—Austin June 23, 2005, no pet.) (mem. op., not designated for publication) (defendant did not object at trial under rule 613(b) and thus "preserved nothing for review").
In his brief, appellant invites the Court to "take notice" of the purported "fundamental" nature of the error in this case and address his complaint even though it is not preserved because of its "constitutional dimension." See TEX. R. EVID. 103(e); Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000) (plurality opinion holding no objection required to preserve error about comments from trial judge which tainted presumption of innocence and amounted to fundamental error of constitutional dimension). We decline to do so. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265 (1991) (fundamental error occurs when certain constitutional rights are violated, such as right to counsel, right to impartial judge, right for there not to be unlawful exclusion of members of defendant's race from grand jury, right to self-representation at trial, or right to public trial); Unkart v. State, 400 S.W.3d 94, 100-01 (Tex. Crim. App. 2013) (Blue has "no precedential value"); Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) ("A[] [defendant] is required to object unless the right to avoid this type of event is a right that is either waivable-only or an absolute, systematic requirement."); Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (to be fundamental, purported error must rise "to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury"); Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (only in "rare cases" may "[a]n appellate court . . . tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court" (internal quotations omitted)); see also Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005) (Sixth Amendment complaint not preserved on appeal where defendant did not articulate "that the Confrontation Clause demanded admission of the evidence"); Stoval v. State, No. 01-07-00594-CR, 2008 WL 2854239, at *3 (Tex. App.—Houston [1st Dist.] July 24, 2008, pet. ref'd) (mem. op., not designated for publication) (complaint about rule 613(b) not preserved where defendant "did not argue to the trial court that he was relying on Rule 613(b) as a basis for eliciting testimony from [witness]").
Admission of Photograph
In his second issue, appellant argues that the trial court, during the guilt phase of trial, erred in admitting into evidence State's Exhibit No. 161, a photograph of Baby Joe, because it is irrelevant and inflammatory and its "sole purpose . . . was to evoke the sympathy of the jury for someone who was not the victim of the offense."
To be admissible, evidence must be relevant. TEX. R. EVID. 401, 402; Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). Relevant evidence is that which tends to make the existence of a fact of consequence to a determination of the case more or less probable than it would be without the evidence. TEX. R. EVID. 401. Relevancy is determined by whether "a reasonable person, with some experience in the real world, [would] believe that the particular piece of evidence is helpful in determining the truth or falsity" of any fact of consequence. Montgomery, 810 S.W.2d at 376 (internal quotations omitted). To be relevant, evidence does not have to prove or disprove a particular fact; it is sufficient if the evidence provides "a small nudge toward proving or disproving some fact of consequence." Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). Even "marginally probative" evidence should be admitted if "it has any tendency at all, even potentially, to make a fact of consequence more or less likely." Fuller v. State, 829 S.W.2d 191, 198 (Tex. Crim. App. 1992). Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and we will not reverse absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993); Levario v. State, 964 S.W.2d 290, 297 (Tex. App.—El Paso 1997, no pet.).
State's Exhibit 161 is a photograph of Baby Joe, showing him as "he looked at the time of the shooting." The photograph shows only Baby Joe's face, and it does not depict any injuries to the child. Several witnesses testified that Baby Joe was in the back seat of Joe Sr.'s car, sitting behind Joe Sr. on the left side of the car where the shooting originated. At trial, appellant objected to the admission of State's Exhibit 161, asserting that it had no relevance other than "drawing [on] the jury's emotions." In response, the State asserted that Baby Joe was a witness to the shooting and his mother, Kimberley, was "testify[ing]" for him.
Photographs are generally admissible if verbal testimony as to matters depicted in the photographs is also admissible. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991). Here, the photograph of Baby Joe, who was present on the left side of the car where the shooting originated, would have served to assist the jury in visualizing the crime scene and is probative of the circumstances related to the shooting. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999); Frank v. State, 183 S.W.3d 63, 78 (Tex. App.—Fort Worth 2005, pet. ref'd) (photographs provided visual context); Williams v. State, 176 S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (having complete understanding of what happened assists jury); see also Thomas v. State, No. AP-75218, 2008 WL 4531976, at *10 (Tex. Crim. App. Oct. 8, 2008) (not designated for publication) (photographs served to assist jury in visualizing crime scene); Ewings v. State, No. 07-08-0132-CR, 2009 WL 435391, at *3 (Tex. App.—Amarillo Feb. 23, 2009, no pet.) (mem. op., not designated for publication) (photographs probative of crime scene and circumstances related to shooting). We hold that the trial court did not err in concluding that State's Exhibit 161 is relevant.
However, even relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice." TEX. R. EVID. 403. Rule 403 favors admissibility of relevant evidence, and the presumption is that generally relevant evidence will be more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 389. To determine whether the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, we consider: "(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence." State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also TEX. R. EVID. 403. In regard to the admissibility of photographs in particular, a court may consider many additional factors in determining whether they are unfairly prejudicial. These include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case. Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005); Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).
The opponent of the evidence has the burden to demonstrate that its negative attributes substantially outweigh any probative value. Montgomery, 810 S.W.2d at 377. We will uphold a trial court's ruling on a rule 403 balancing test, whether explicit or implied, if it is within the zone of reasonable disagreement. Jabari v. State, 273 S.W.3d 745, 752-53 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996) (when reviewing trial court's determination of probative and prejudicial value of evidence under rule 403, we reverse only upon showing of clear abuse of discretion). Great deference is given to the trial court's decision to admit or exclude evidence under rule 403. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Appellant asserts that the "inflammatory potential" of State's Exhibit 161 is great and the State used the photograph to "evoke the sympathy of the jury." As noted above, State's Exhibit 161 is a photograph of Baby Joe as "he looked at the time of the shooting." The photograph depicts Baby Joe's face, shows no injuries to the child, and is not gruesome. Further, the trial court admitted only one single photograph of Baby Joe, the size of the photograph is relatively small, and the child is fully clothed. See Prible, 175 S.W.3d at 734; Hayes, 85 S.W.3d at 815; Santellan, 939 S.W.2d at 172; Long, 823 S.W.2d at 272.
Again, State's Exhibit 161 has probative value because it serves to assist the jury in visualizing the crime scene and understanding the circumstances related to the shooting; and it supported the testimony of trial witnesses. See Ledbetter v. State, 208 S.W.3d 723, 734 (Tex. App.—Texarkana 2006, no pet.) (photographs had probative value where corroborated testimony); Frank, 183 S.W.3d at 78 (photographs provided visual context); Williams, 176 S.W.3d at 481-82 (having complete understanding of what happened assists jury); see also Thomas, 2008 WL 4531976, at *10 (photographs served to assist jury in visualizing crime scene); Ewings, 2009 WL 435391, at *3 (photographs probative of crime scene and circumstances related to shooting). This factor thus weighs in favor of the admission of State's Exhibit 161.
In regard to appellant's complaint about the powerful effect that State's Exhibit 161 could have had on the jury, the Texas Court of Criminal Appeals has explained that "when the power of visible evidence emanates from nothing more than what the defendant has himself done[,] we cannot hold that the trial court abused its discretion merely because it admitted the evidence." Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). And we note that State's Exhibit 161 is not graphic, nor can we say that it "somehow inject[ed] any additional, intangible, or inappropriate emotional element into the case such that the trial court should have necessarily excluded the[] photograph[]." Ledbetter, 208 S.W.3d at 734-35; see also Fuller, 829 S.W.2d at 206 (photographs not "so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of th[e] case after viewing them"); Moreno Denoso v. State, 156 S.W.3d 166, 179 (Tex. App.—Corpus Christi 2005, pet. ref'd) ("We cannot conclude that the images in the photographs appeal only to the jury's emotional side and encourage the jurors to make a decision on an emotional basis, and not on the basis of other relevant evidence introduced at trial."). Thus, we cannot say that this factor weighs against the admission of State's Exhibit 161.
In regard to the time needed to develop the evidence, the record shows that the State asked Kimberley three questions about State's Exhibit 161, and it took the State less than one page of testimony to develop the predicate for State's Exhibit 161, to offer it for admission, and to discuss the content of the photograph. See Ledbetter, 208 S.W.3d at 735 ("The reporter's record shows it took the State six pages of testimony to develop the predicate, to offer for admission, and to discuss the contends of Exhibits 12 and 13."); Moreno Denoso, 156 S.W.3d at 179 ("[T]he State took little time before the jury to lay the foundation for the photographs and introduce them into evidence."). This factor weighs in favor of the admission of State's Exhibit 161.
Further, in regard to the State's need for the evidence, in its brief, the State explains that State's Exhibit 161 was necessary to "allow[] the jurors to better visualize the scene of the crime." As several witnesses testified, Baby Joe was present in Joe Sr.'s car at the time of the shooting and he was seated behind Joe Sr., on the left side of the car where the shooting originated. We cannot say that State's Exhibit 161 did not aid the jury in understanding the circumstances of the shooting or the brutality of the crime. See Ledbetter, 208 S.W.3d at 735.
We hold that the trial court's conclusion that the probative value of State's Exhibit 161 is not substantially outweighed by the danger of unfair prejudice did not fall outside the zone of reasonable disagreement. See TEX. R. EVID. 403; Jabari 273 S.W.3d at 753.
Accordingly, we further hold that the trial court did not err in admitting State's Exhibit 161 into evidence.
We overrule appellant's second issue.
Improper Argument
In his third issue, appellant argues that the trial court, during the punishment phase of trial, erred in overruling his objection to a portion of the State's closing argument to the jury because the State "alluded to" his "failure to . . . testify" when it commented on his "lack of sympathy and remorse." See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 2005).
We review a trial court's ruling on an objection to improper jury argument for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); see also Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.) (trial court has broad discretion in controlling scope of closing argument). Although the State is afforded wide latitude in its jury arguments, proper jury argument is generally limited to: (1) summation of the evidence presented at trial; (2) reasonable deductions drawn from that evidence; (3) answers to opposing counsel's argument; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Acosta v. State, 411 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The fact that a defendant did not testify does not fall into any of these categories and may not be the subject of comment by the State. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761, 764-65 (Tex. Crim. App. 2001). This is because prosecutorial argument that comments on a defendant's decision not to testify violates his right against compelled self-incrimination. U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08; Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011); Bustamante, 48 S.W.3d at 764-65.
In considering whether the State violated the defendant's Fifth Amendment right by commenting on his decision not to testify, we "view the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor of it being a permissible argument." Randolph, 353 S.W.3d at 891. It is not enough that the language used by the State might be construed as an implied or an indirect allusion to the defendant's decision not to testify. Cruz, 225 S.W.3d at 548. Rather, argument constitutes a comment upon a defendant's decision not to testify only where "the language used [by the State is] manifestly intended or [is] of such a character that the jury would necessarily and naturally take it as a comment on the defendant's [decision not] to testify." Id. at 548 (internal quotations omitted). In other words, the State's reference to the defendant's decision not to testify must be a "clear and necessary" implication. Randolph, 353 S.W.3d at 891; see also Cruz, 225 S.W.3d at 548 (State's comment must contain "clear" reference (internal quotations omitted)).
Here, during its closing argument at the punishment phase of trial, the State, in relevant part, remarked:
[The State]: The events in his life up until now, anyone would want their son to be that way? Really? No way. No way.(Emphasis added.) Appellant objected to the State's comment about "no remorse and no sympathy" as "an indirect comment on [appellant's] failure to testify [at] the punishment stage." The trial court overruled appellant's objection.
But how about this? You don't get to walk in here and say -- with no remorse and no sympathy and say: Give me a discount.
A comment by the State on a defendant's failure to show remorse can sometimes constitute a comment on his decision not to testify. Snowden v. State, 353 S.W.3d 815, 817 n.4 (Tex. Crim. App. 2011); Garcia, 126 S.W.3d at 924. However, the statement about which appellant complains in the instant case is not a clear comment on his decision not to testify. See Cruz, 225 S.W.3d at 548 (State's comment must contain "clear" reference "that the jury would necessarily and naturally take . . . as a comment on the defendant's failure to testify" (internal quotations omitted)); Stout v. State, 426 S.W.3d 214, 223 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding State did not improperly comment on defendant's decision not to testify where its comments during closing argument were not "clear references that the jury would necessarily and naturally take . . . as a comment on [defendant's] failure to testify" (internal quotations omitted)). If anything, the State's remark is ambiguous at best. See Wells v. State, 634 S.W.2d 868, 873 (Tex. App.—Houston [1st Dist.] 1982, pet. ref'd, untimely filed) (where jury argument "reasonably susceptible to more than one interpretation," "it cannot be concluded that the language was of such character that the jury would necessarily take it to be a comment upon the [defendant's] failure to testify").
Further, although the State, during its closing argument, used the word "remorse," the State's comment regarding "no remorse and no sympathy" was not "manifestly intended or . . . of such a character that the jury would necessarily and naturally take it as a comment on the defendant's [decision not] to testify." Cruz, 225 S.W.3d at 548-49 (explaining "[t]here is . . . no particular 'trigger' word or phrase that makes any jury argument automatically improper"). Instead, the State's remark could have been interpreted by the jury to be a reference to the testimony of a defense witness, namely appellant's sister, during the punishment phase of trial. See Randolph, 353 S.W.3d at 891 ("We cannot find that the prosecutor manifestly intended to comment on the defendants' failure to testify, if some other explanation for his remark is equally plausible." (internal quotations omitted)); Henson v. State, 683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984) (where comment leads to two plausible inferences—one of which is permissible—we do not presume jury would necessarily choose improper reference); see also Garcia, 126 S.W.3d at 924 (when State's comments are supported by testimony presented to jury, they constitute proper summation of evidence and not improper comment on defendant's decision not to testify).
During the punishment phase of trial, appellant's sister, Carol Robles, testified that her entire family is "very scared" of the complainant's family. She noted that the September 22 incident involving the two families, wherein George's truck window was "sh[ot] out," occurred just "four months" prior to the complainant's death. And although the complainant had nothing to do with the September 22 incident, Robles stated that it was the complainant's family who was involved, the complainant's "whole family" consists of "bad people," and the complainant was a "bad" person. According to Robles, she had learned this information about the complainant and her family from appellant "[a]nd other people"; and, thus, in her opinion, "[i]t's okay [that appellant] murdered" the complainant. Cf. Hall v. State, No. 2-09-317-CR, 2010 WL 3193507, at *2 (Tex. App.—Fort Worth Aug. 12, 2010, no pet.) (mem. op., not designated for publication) (State's comment during closing argument defendant had shown no remorse did not refer to his decision not to testify but to his family member's testimony during punishment phase of trial); Palermo v. State, 992 S.W.2d 691, 693-95 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (State's reference to defendant's lack of remorse supported by testimony defendant told another he had shot people, but "never anyone who did not need to be shot").
Viewing the complained-of comment by the State from the jury's standpoint, we conclude that the State's language was not one manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on appellant's decision not to testify. See Randolph, 353 S.W.3d at 891 (where some other explanation for remark equally plausible, cannot be said State manifestly intended to comment on defendant's decision not to testify); Cruz, 225 S.W.3d at 548. Accordingly, we hold that the trial court did not err in overruling appellant's objection to the complained-of portion of the State's closing argument referencing "no remorse and no sympathy."
Further, even were we to conclude that the State improperly commented on appellant's decision not to testify, appellant still must show that he was harmed by the State's remark. Because a comment on a defendant's decision not to testify infringes on his right against self-incrimination, it constitutes constitutional error, and we must reverse unless we can conclude beyond a reasonable doubt that the error did not contribute to his punishment. TEX. R. APP. P. 44.2(a); Snowden, 353 S.W.3d at 818; Thompson v. State, 426 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). Our primary inquiry is what effect the error had, or may have had, on the jury's decision. Lair v. State, 265 S.W.3d 580, 590 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). "This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the [State]." Id. at 591 (internal quotations omitted). In evaluating whether trial error of a constitutional dimension was harmful under Texas Rule of Appellate Procedure 44.2(a), we consider: (1) the nature of the error; (2) the extent to which it was emphasized by the State; (3) the probable implications of the error; and (4) the weight the jury would likely have assigned to it in the course of its deliberations. Snowden, 353 S.W.3d at 822; Thompson, 426 S.W.3d at 211. These factors are not exclusive; other considerations may inform our harm analysis. See Snowden, 353 S.W.3d at 822; Thompson, 426 S.W.3d at 211. On the other hand, not every factor will necessarily apply to every constitutional error subject to a harm analysis. See Snowden, 353 S.W.3d at 822.
In regard to the second Snowden factor, the State did not emphasize appellant's decision not to testify in its closing argument. See Crayton v. State, 463 S.W.3d 531, 536 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (State's comment brief); Whitehead v. State, 437 S.W.3d 547, 553 (Tex. App.—Texarkana 2014, pet. ref'd) ("Because the State did not emphasize the error or seek to benefit from it, this factor weighs in favor of a finding that the error was not harmful."); Weekley v. State, No. 05-10-01107-CR, 2013 WL 2316612, at *5 (Tex. App.—Dallas May 28, 2013, pet. ref'd) (mem. op., not designated for publication) (holding error harmless where State "did not make any other comments similar to the complained-of comments," "comments were isolated," and "error, if any, was not emphasized"). Instead, the State focused on the nature of the offense committed by appellant and the impact of the complainant's death on her family. Further, the State, during its closing argument, specifically told the jury that it could not consider appellant's decision not to testify during the punishment phase of trial when assessing punishment. The lack of emphasis on appellant's decision not to testify limits the weight the jury would likely have assigned to the State's purported improper remark about "no remorse and no sympathy." Snowden, 353 S.W.3d at 822; Bailey v. State, No. 01-15-00215-CR, 2016 WL 921747, at *11 (Tex. App.—Houston [1st Dist.] Mar. 10, 2016, no pet.) (mem. op., not designated for publication).
In regard to the third and fourth Snowden factors, we note that although the trial court overruled appellant's objection to the State's purported improper comment, the jury was instructed multiple times during trial that it could not consider appellant's decision not to testify. See Whitehead, 437 S.W.3d at 553; Cantu v. State, 395 S.W.3d 202, 211-12 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); Lair, 265 S.W.3d at 591 (appellate court reviews entire record when evaluating potential harm); see also Weekley, 2013 WL 2316612, at *5. For instance, at the outset of the trial, during voir dire, the trial court instructed the venire that the defendant was not required to testify and the jury could not "take [the defendant's decision not to testify] into account for any reason." And the trial court, in its charge to the jury during punishment phase of trial, stated:
The State also emphasized during voir dire that the jury could not "hold" a defendant's decision not to testify "against him" and could not "consider it for any reason."
You are instructed that the defendant may testify in his own behalf if he chooses to do so, but if he elects not to do so, that fact cannot be taken by you as a circumstance against him nor prejudice him in any way. The defendant has elected not to testify in this punishment phase of trial, and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever.See Thompson, 426 S.W.3d at 213 (when determining defendant not harmed by State's comment alluding to decision not to testify, noting trial court's charge to jury instructed it not to consider defendant's decision not to testify). We presume that the jury followed the trial court's instructions, which would have mitigated the effect, if any, of the State's comment about "no remorse and no sympathy." See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Cantu, 395 S.W.3d at 211-12; Lair, 265 S.W.3d at 591. Further, the State also explained to the jury during its closing argument that it could not "consider [appellant's] option not to testify in the punishment portion" of trial during its deliberations. The impact of the State's purported improper comment was mitigated by the trial court's instructions to the jury and the jury would not have assigned the comment weight during its deliberations. See Cantu, 395 S.W.3d at 212-13.
Based on our review of the record and in light of the Snowden factors, we conclude, beyond a reasonable doubt, that the State's purported improper comment did not contribute to his punishment and appellant was not harmed by the trial court's error, if any. See TEX. R. APP. P. 44.2(a); Snowden, 353 S.W.3d at 822. Accordingly, we further hold that any error by the trial court in overruling appellant's objection to the complained-of portion of the State's closing argument referencing "no remorse and no sympathy" was harmless.
We overrule appellant's third issue.
Victim-Impact and Hearsay Evidence
In a portion of his fourth issue, appellant argues that the trial court, during the punishment phase of trial, erred in allowing Kimberley to testify about the "impact of the offense" on Baby Joe because such testimony constituted victim-impact evidence and contained hearsay.
Victim-Impact Evidence
Appellant first argues that the trial court erred in allowing Kimberley to testify about the "impact of the offense" on Baby Joe because the victim-impact evidence is irrelevant and "its prejudice outweighs its probity."
We review the admission of victim-impact evidence for an abuse of discretion. Contreras v. State, 59 S.W.3d 362, 364 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Ford v. State, 919 S.W.2d 107, 114 (Tex. Crim. App. 1996) (trial court afforded wide discretion in admitting or excluding victim-impact evidence). And we will not reverse a trial court's ruling unless it was outside the zone of reasonable disagreement. Ford, 919 S.W.2d at 115; Montgomery, 810 S.W.2d at 391; Brooks v. State, 961 S.W.2d 396, 397 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Here, appellant complains about the following testimony:
[State:] Kimberley, we didn't have a chance to talk about it yesterday, but can you tell us what was the reaction of Baby Joe, your son, when [the complainant] was shot?
[Appellant's counsel]: Objection, Your Honor. This is a question in the form of impact evidence, which is not to be done until after the sentencing is over. I object to it.
THE COURT: Overruled.
[Appellant's counsel]: May I have a running objection --
THE COURT: You may.
[Appellant's counsel]: -- to all such testimony?
[State]: So, Kimberley, can you tell us what Baby Joe's reaction was there in the car when [the complainant] was shot?
[Kimberley:] He was very scared. He was crying. And he was wanting to know what happened to his maw-ma and why was she bleeding.
[State:] And what was he trying to do there in the car?
[Kimberley:] Trying to go to the seat to get to her, but I wouldn't let him. He went to touch her. I wouldn't let him. Because he kept saying why was maw-ma bleeding.
[State:] And has he talked about that to you since that day?
[Kimberley:] Yes, ma'am, sometimes. He says he misses his maw-ma, that his maw-ma got shot and killed and he don't know why.
[State:] Do you think he still remembers it?
[Kimberley:] Yes, ma'am, he does.
[State:] He still talks about it?
[Kimberley:] Yes, ma'am, he does. He remembers.
During the punishment phase of trial, a trial court may admit any matter that it deems relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2016); Ford, 919 S.W.2d at 114; Brooks, 961 S.W.2d at 398. The circumstances of the offense are relevant to sentencing and may be considered by the trier of fact in determining the punishment to be assessed. Jagaroo v. State, 180 S.W.3d 793, 798 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). This includes victim-impact evidence, so long as it has some bearing on the defendant's personal responsibility and moral culpability. Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex. Crim. App. 1991); Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990); see also McCain v. State, 995 S.W.2d 229, 247 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd, untimely filed) ("Texas has concluded that [victim-impact] evidence is relevant.").
Appellant argues that Kimberley's testimony about the "impact of the offense" on Baby Joe is not relevant because Baby Joe is not listed, under Texas Code of Criminal Procedure article 42.03, as a person who is permitted to "offer post-sentencing victim impact statements." See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b) (Vernon Supp. 2016). Article 42.03 relates to the pronouncement of a defendant's sentence and provides that the trial court, after punishment has been assessed and a sentence pronounced, "shall permit a victim, close relative of a deceased victim, or guardian of a victim . . . to appear in person to present to the court and to the defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim." Id.; see also Fryer v. State, 68 S.W.3d 628, 632 (Tex. Crim. App. 2002) (article 42.03's "victim statement provision . . . gives the victim a right to state his views about the offense, about the defendant, and about the effect of the offense on the victim").
However, article 42.03 pertains to post-sentence victim-impact statements; it does not prohibit the admissibility and consideration of relevant victim-impact evidence during the punishment phase of trial prior to sentencing. Jagaroo, 180 S.W.3d at 798; Brown v. State, 875 S.W.2d 38, 40 (Tex. App.—Austin 1994, no pet.); see also Brooks, 961 S.W.2d at 399 n.4 (distinguishing between victim-impact evidence under article 37.07, section 3(a)(1), and victim-impact statements under article 42.03, section 1(b)). As the Austin Court of Appeals has explained:
Article 42.03 is concerned with the procedures to be followed in pronouncing sentence. The statute does not purport to govern the conduct of the punishment stage of a criminal trial, and in particular does not speak to the evidence that may be considered by the court or jury in determining the appropriate punishment.Brown, 875 S.W.2d at 40.
Instead, article 37.07 governs "[t]he procedures to be followed at the punishment stage of trial and the evidence that may be considered in determining punishment." Id. at 39-40; see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); see also Williams v. State, 191 S.W.3d 242, 261 (Tex. App.—Austin 2006, no pet.). And courts have repeatedly permitted, under article 37.07, testimony about the impact of an offense on the relatives and family of the complainant. See Stavinoha, 808 S.W.2d at 77-79 (holding relevant victim-impact evidence may include physical, psychological, or economic effects of crime on complainant or complainant's family); McCain, 995 S.W.2d at 248 ("[R]elatives of the deceased are able to testify about how the death of their loved one impacted them."); see also Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002) (explaining victim-impact evidence "is designed to remind the jury that [a crime] has foreseeable consequences to the community and the victim's survivors—family members and friends who also suffer harm from [the criminal] conduct"); Rodriguez v. State, No. 05-11-00348-CR, 2012 WL 5350971, at *1-2 (Tex. App.—Dallas Oct. 31, 2012, no pet.) (not designated for publication) (State's questions elicited testimony about harm to victim's family); Bray v. State, No. 04-95-00338-CR, 1996 WL 460029, at *2 (Tex. App.—San Antonio Aug. 14, 1996, no pet.) (not designated for publication) (relative of victim testified about "terrible impact on the family"). As the United States Supreme Court has observed, evidence of the impact of an offense on the life of the complainant and others may be introduced at the punishment phase of a trial as a way of informing "the sentencing authority about the specific harm caused by the crime in question." Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 2608 (1991) (noting "victim impact evidence serves entirely legitimate purposes").
As noted above, article 37.07 grants trial courts broad discretion in admitting evidence that they deem relevant to sentencing. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); Williams, 176 S.W.3d at 480; Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And whether victim-impact evidence is deemed relevant depends on whether it has some bearing on the defendant's personal responsibility and moral guilt. Stavinoha, 808 S.W.2d at 78-79; Boone v. State, 60 S.W.3d 231, 238 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). If the defendant should have anticipated the particular effect on the complainant or the complainant's family, the evidence is relevant. See Boone, 60 S.W.3d at 238; Moreno v. State, 38 S.W.3d 774, 777-78 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Here, Kimberley's testimony about Baby Joe's reaction to the shooting, which he was present for and in close proximity to, had a bearing on appellant's personal responsibility and moral culpability. See Stavinoha, 808 S.W.2d at 78-79; McCain, 995 S.W.2d at 248 ("[A] jury could rationally hold [defendant] morally responsible for the emotional trauma his . . . deadly actions would have on the people in the car [with the complainant]."). And appellant could have reasonably anticipated that shooting the complainant would have had a traumatic impact on her family, particularly those persons present in the car with her when she was killed. See Moreno, 38 S.W.3d at 778; McCain, 995 S.W.2d at 248 (permitting victim-impact testimony from friend present in car when victim shot and killed by defendant). Accordingly, we hold that Kimberley's testimony about the "impact of the offense" on Baby Joe is relevant and admissible. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).
We overrule this portion of appellant's fourth issue.
We note that appellant further asserts that even if Kimberley's testimony about the "impact of the offense" on Baby Joe is relevant, "the danger of unfair prejudice and confusion of the issues[] substantially outweigh[s] any probative value of the" evidence. See TEX. R. EVID. 403. Appellant, however, did not raise a rule 403 objection in the trial court.
To preserve a complaint for appeal, a party must lodge a timely and specific objection, obtain an adverse ruling, and then either "object each time the inadmissible evidence is offered or obtain a running objection." See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also TEX. R. APP. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). Rule 403 must be specifically invoked in the trial court in order preserve error under that rule. Montgomery, 810 S.W.2d at 388-89 (to preserve rule 403 complaint, specific objection on basis of rule 403 required); Williams, 191 S.W.3d at 261; Schultze v. State, 177 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Here, appellant only objected that Kimberley's testimony about the "impact of the offense" on Baby Joe should not be admitted "until after the sentencing is over." Because he did not make a specific objection on the basis of rule 403, we hold that he has not preserved for appeal his complaint that Kimberley's testimony about the "impact of the offense" on Baby Joe is more prejudicial than probative. See TEX. R. EVID. 403.
Hearsay
Appellant next argues that the trial court erred in allowing Kimberley to testify "about what . . . [Baby Joe] said about the murder and its emotional impact" because her testimony contained hearsay and no hearsay exception applies. See TEX. R. EVID. 801(d), 802, 803, 804.
"Hearsay" is an out-of-court statement that is offered in evidence to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Hearsay is inadmissible except where allowed by statute or rule. TEX. R. EVID. 802. Specifically, appellant complains that the following testimony by Kimberley contains hearsay:
[State:] So, Kimberley, can you tell us what Baby Joe's reaction was there in the car when [the complainant] was shot?
[Kimberley:] He was very scared. He was crying. And he was wanting to know what happened to his maw-ma and why was she bleeding.
[State:] And what was he trying to do there in the car?(Emphasis added.)
[Kimberley:] Trying to go to the seat to get to her, but I wouldn't let him. He went to touch her. I wouldn't let him. Because he kept saying why was maw-ma bleeding.
[State:] And has he talked about that to you since that day?
[Kimberley:] Yes, ma'am, sometimes. He says he misses his maw-ma, that his maw-ma got shot and killed and he don't know why.
[State:] Do you think he still remembers it?
[Kimberley:] Yes, ma'am, he does.
[State:] He still talks about it?
[Kimberley:] Yes, ma'am, he does. He remembers.[]
The purported hearsay about which appellant complains is emphasized.
Again, to preserve a complaint for appellate review, the record must show that appellant made the complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling he sought with sufficient specificity to make the trial court aware of the complaint, and the trial court ruled or refused to rule on the objection. See TEX. R. APP. P. 33.1(a); Layton, 280 S.W.3d at 238-39 ("In order to preserve an issue for appellate review, a timely and specific objection is required."). At trial, appellant did not object to Kimberley's testimony of the basis of hearsay. Accordingly, we hold that he has not preserved his hearsay complaint for appellate review. See TEX. R. APP. P. 33.1(a); Layton, 280 S.W.3d at 238-39; Swanner v. State, 499 S.W.3d 916, 918 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (defendant did not object to admission of evidence on basis of hearsay and did not preserve hearsay argument).
Ineffective Assistance of Counsel
In a portion of his first issue, appellant argues that his trial counsel did not provide him with effective assistance during the guilt phase of trial because he did not preserve appellant's complaint that the trial court, in violation of Texas Rule of Evidence 613(b), erred in limiting his cross-examination of Joe Sr. about "a deadly feud between [appellant's] family" and the complainant's family. In a portion of his fourth issue, appellant argues that his trial counsel did not provide him with effective assistance during the punishment phase of trial because he did not preserve appellant's complaint that Kimberley's testimony about the "impact of the offense" on Baby Joe was more prejudicial than probative and contained hearsay.
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
We note that, generally, a silent record that provides no explanation for trial counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law and no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of counsel's subjective reasoning. Id.
Guilt Phase
Appellant first argues that his trial counsel did not provide him with effective assistance during the guilt phase of trial because counsel did not argue that the trial court's refusal to permit cross-examination of Joe Sr. about the September 22 incident violated Texas Rule of Evidence 613(b).
In order to prevail on his ineffective-assistance-of-counsel claim, appellant must first show that his trial counsel's performance fell below an objective standard of reasonableness when considering prevailing professional norms. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and the challenged action could be considered to have been prompted by sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Absent contrary evidence, we will not second-guess the strategy of appellant's counsel at trial through hindsight. Garcia, 57 S.W.3d at 440 ("[I]n the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined." (internal quotations omitted)); Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979) ("This Court will not second-guess through hindsight the strategy of counsel at trial nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness."); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref'd). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983); Hall, 161 S.W.3d at 152.
Here, appellant did not file a motion for new trial and the record is silent as to why appellant's trial counsel did not raise a rule 613(b) objection when the trial court refused to allow appellant to cross-examine Joe Sr. about the September 22 incident. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) ("An ineffective-assistance claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim." (internal quotations omitted)); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) ("[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective."); Bone, 77 S.W.3d at 835 ("Ineffective assistance of counsel claims are not built on retrospective speculation; they must be firmly founded in the record." (internal quotations omitted)). Therefore, we must presume that counsel was acting pursuant to a sound trial strategy. See Menefield, 363 S.W.3d at 593 (where record silent as to why counsel did not object, unable to conclude counsel's performance deficient); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (where record silent as to why trial counsel did not object, defendant failed to rebut presumption counsel's decision reasonable); Crocker v. State, 441 S.W.3d 306, 315 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) ("Because the record is silent concerning counsel's reasons for not objecting, we must presume counsel had a valid strategy."); Smith v. State, 84 S.W.3d 36, 42 (Tex. App.—Texarkana 2002, no pet.) ("Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy."); see also Bush v. State, No. 14-13-00466-CR 2014 WL 2446641, at *5 (Tex. App.—Houston [14th Dist.] May 29, 2014, no pet.) (mem. op., not designated for publication) (could not conclude assistance ineffective where "no indication [in record as to] why [defendant]'s trial counsel did not assert [his] right to confront and cross-examine [witnesses]").
Accordingly, in the absence of a record reflecting why appellant's trial counsel did not raise a rule 613(b) objection, we hold that appellant has failed to rebut the presumption that his trial counsel's decision was reasonable. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court may not conclude, based on speculation, counsel ineffective when record silent about why he made decisions at trial); see also Miles v. State, No. 01-11-00401-CR, 2012 WL 2357449, at *4 (Tex. App.—Houston [1st Dist.] June 21, 2012, no pet.) (mem. op., not designated for publication) ("In the absence of a record reflecting why [defendant]'s counsel did not object, we hold that the record does not firmly establish deficient performance."). We further hold that the professional error, if any, was not so outrageous that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at 593; see also Miles, 2012 WL 2357449, at *4.
We overrule this portion of appellant's first issue.
Punishment Phase
Appellant next argues that his trial counsel did not provide him with effective assistance during the punishment phase of trial because counsel did not raise Texas Rule of Evidence 403 and hearsay objections to Kimberley's testimony about the "impact of the offense" on Baby Joe.
Again, the record is silent as to why appellant's counsel did not make rule 403 and hearsay objections to Kimberley's testimony about the "impact of the offense" on Baby Joe. See Menefield, 363 S.W.3d at 593; Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 835. Therefore, we must presume that counsel was acting pursuant to a sound trial strategy. See Menefield, 363 S.W.3d at 593 (where record silent as to why counsel did not object, unable to conclude counsel's performance deficient); Thompson, 9 S.W.3d at 814 (where record silent as to why trial counsel did not object to hearsay, defendant failed to rebut presumption counsel's decision reasonable); Crocker, 441 S.W.3d at 315 ("Because the record is silent concerning counsel's reasons for not objecting, we must presume counsel had a valid strategy."); Williams v. State, 309 S.W.3d 124, 132 (Tex. App.—Texarkana 2010, pet. ref'd) ("Here, since the record is silent as to why trial counsel failed to object to this testimony, we will assume it was due to any strategic motivation that can be imagined."); Smith, 84 S.W.3d at 42 ("Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy."); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (unable to conclude trial counsel's performance deficient where record silent as to counsel's reasons for not objecting to inadmissible hearsay); see also Tong, 25 S.W.3d at 713-14 (where record silent as to why trial counsel did not object to victim-impact testimony, insufficient to overcome presumption counsel's actions part of strategic plan); Martinez v. State, No. 07-11-00473-CR, 2012 WL 5342546, at *9 (Tex. App.—Amarillo Oct. 30, 2012, pet. ref'd) (mem. op., not designated for publication) (explaining plausible reasons why counsel would not have raised rule 403 objection and where "[w]e simply do not know why counsel chose not to lodge the Rule 403 objection" cannot conclude performance deficient).
Accordingly, in the absence of a record reflecting why appellant's trial counsel did not make rule 403 and hearsay objections to the complained-of testimony by Kimberley, we hold that appellant has failed to rebut the presumption that trial counsel's decisions were reasonable. See Jackson, 877 S.W.2d at 771 (appellate court may not conclude, based on speculation, counsel ineffective when record silent about why he made decisions at trial.); see also Miles, 2012 WL 2357449, at *4 (mem. op., not designated for publication) ("In the absence of a record reflecting why [defendant]'s counsel did not object, we hold that the record does not firmly establish deficient performance."). We further hold that the professional error, if any, was not so outrageous that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at 593; see also Miles, 2012 WL 2357449, at *4.
We overrule this portion of appellant's fourth issue.
Cumulative Error
In his fifth issue, appellant argues that "[t]he cumulative effect of the [trial court's] errors deprived [him] of due process" of law and a fair trial because "any one of the [complained-of] errors . . . is sufficient to justify vacatur of the judgment [and] remand for a new trial" and "when viewed in combination, the errors assume a multiplier effect." Appellant further asserts that the "cumulative effect" of his trial counsel's "failure to adequately preserve errors" "depriv[ed] [him] of his right to effective assistance of counsel."
A number of errors may be found harmful in their cumulative effect. Chamberlain, 998 S.W.2d at 238; Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988). However, having concluded that there are no errors related to the complained-of actions of the trial court, or that such errors are harmless, and that appellant has not preserved certain complaints that he now raises on appeal, we cannot conclude in this case that the cumulative effect of trial court's purported errors has deprived appellant of his rights of due process of law and a fair trial. See Chamberlain, 998 S.W.2d at 238 (explaining unless and until multiple errors found to have been committed, there can be no cumulative error effect because non-errors cannot in their cumulative effect create harmful error); see also Jenkins v. State, 493 S.W.3d 583, 613 (Tex. Crim. App. 2016) (where defendant failed to show trial court erred, "there is no error to cumulate"); Ryser v. State, 453 S.W.3d 17, 43 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
Further, having concluded that appellant's trial counsel did not render ineffective assistance, we cannot conclude that the cumulative effect of the complained-of actions of trial counsel amount to ineffective assistance. See Chamberlain, 998 S.W.2d at 238; Straight v. State, 515 S.W.3d 553, 576 (Tex. App.—Houston [14th Dist.] Feb. 16, 2017, pet. ref'd) ("Having concluded that trial counsel did not render ineffective assistance in [defendant]'s complained of actions, we likewise conclude that the cumulative effect of trial counsel's actions does not amount to ineffective assistance."); Rodriguez v. State, 336 S.W.3d 294, 303 (Tex. App.—San Antonio 2010, pet. ref'd) ("Because we conclude that [defendant] did not meet her burden of establishing individual instances of ineffective assistance of counsel, we hold that she cannot show an adverse cumulative effect from the actions of trial counsel.").
We overrule appellant's fifth issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).