Opinion
No. 12-02-00180-CR
Opinion delivered July 31, 2003 Do Not Publish
Appeal From The Criminal District Court 2 Tarrant County, Texas
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
MEMORANDUM OPINION
A jury found Appellant guilty of capital murder by committing murder during the commission of aggravated sexual assault. The trial judge, as required by statute, assessed Appellant's punishment at imprisonment for life. In his first issue, Appellant contends the trial court erred in admitting evidence of his extraneous bad conduct despite the State's failure to give proper notice. In Appellant's second issue, he contends the trial court erred in allowing a police officer to express his opinion to the jury that Appellant was guilty of sexual assault. We affirm.
Background
At about 3:30 p.m., October 1, 1999, Summer Little was found dead on the second floor bathroom of her apartment, nude, with her head and upper body face down in the bathtub, and her legs hanging over the side of the tub. The first paramedic on the scene determined that Little's death did not appear to be an accidental drowning, and called the police. The police found no sign of forced entry into the apartment. They found blood on the floor of the downstairs bathroom. They collected the shorts and bra lying on the living room floor, a bloodstained tee-shirt on the sofa, and a bloodstained Kleenex on top of the television. Upstairs, they found a pair of panties on the floor by the bed. They collected blood samples from the toilet rim and the corner of the bathtub in the upstairs bath. Analysis of the blood from the first floor bathroom indicated that it was Summer Little's blood. Investigators found a fingerprint in the downstairs bathroom sink, and three palm prints from the wall above the upstairs bath. All these prints were later identified as Appellant's. An autopsy revealed that Summer Little had several blunt force injuries to the head. These injuries included a laceration of the upper lip, a bruise and swelling above her right eye, a bruise above her left ear, and deep bruises under the scalp on both sides of her head. Internal examination discovered hemorrhages to the muscles of the neck. The examiner also noted a blood-tinged froth around her mouth and nostrils indicating that she was still breathing while her face was in the water. The examiner determined that death was caused by strangulation with a soft ligature and drowning. Little's body had hairs, carpet fibers, and "patterned petechial contusions" on her posterior left shoulder, facts indicating that she had been dragged across the carpet. He found no signs that Summer Little struggled with her attacker. The medical examiner also conducted a sexual assault examination discovering a small abrasion of the anus. No semen was detected. The examiner could not give a time of death, but concluded that Little had been dead for at least six to eight hours before the 7:40 p.m. examination on October 1. Little had talked to a friend on the telephone at 9:00 p.m. on September 30. While checking the whereabouts of Little's boyfriend, the police interviewed Appellant who was unable to produce any identification. Acting on a tip, the police searched Little's apartment and found Appellant's wallet containing his social security card under the sofa in Little's living room. At trial, Selena Jones, Appellant's girlfriend, testified that Appellant "had issues" with Summer Little because he believed she was telling lies about him to his friends and because she owed him fifty dollars. He told Selena that he wanted Little dead. When Appellant heard that Little had thrown her boyfriend out of her apartment, he told Selena that Little was now "open game." Selena testified that she, Chris Brockman, and Appellant went to a party the night before Little was murdered. When they left the party between six and seven o'clock a.m., Appellant dropped Brockman and Selena off, saying he had a problem he needed to take care of. He returned in about an hour and told Selena that Little was dead. Appellant also told Selena that he could not find his wallet, and he was afraid he had left it at Little's apartment. Appellant had blood on his rings and asked Selena to wash them. He also asked her to get a bag from his vehicle. Looking inside the bag, she found Summer Little's wallet, with her food stamp card, identification, children's photos, and a heart-shaped pendant. Two days later, Appellant told Selena that shortly before the murder he had had sex with Little which had "started out" to be consensual. He said that he had hit her in the face. Several other witnesses confirmed that Appellant was angry over the fifty-dollar debt and that he had several times threatened to kill Little. Michael Tealer lived at the same apartment with Appellant and Selena. He testified that the night before Little's murder, Appellant, Brockman, and Selena left for a party. When he awoke the next morning at around seven to eight o'clock a.m., only Brockman and Selena were there. Appellant showed up at around nine to ten o'clock a.m. Tealer testified that he heard Appellant ask Selena where his wallet was. Two other residents of the apartment, Anna Acevedo and Elias Perez, testified that Appellant, Brockman, and Selena left for the party together, and that Appellant returned later than the other two. Both Acevedo and Perez heard Appellant ask Selena about his wallet. Acevedo heard him ask Selena to wash his rings. Perez testified that late in the night before Little was killed, Appellant asked to borrow his .38 derringer because he needed it for something he had planned. Perez loaned him the gun, and Appellant returned it the next morning. Earl Fields testified that while he and Appellant were in the Tarrant County Jail, Appellant devised a scheme whereby he would write a letter to his mother claiming that he was being framed, but also claiming to know who Summer Little's real killer was. Appellant planned to throw the letter away, and Fields was to retrieve it from the trash and hand it over to the detectives. Appellant also told Fields that blood ran from Little's nose "like a river" all over the bathroom, upstairs, and downstairs.Evidence of Extraneous Bad Conduct
In his first issue, Appellant complains that the trial court erred in admitting evidence that he borrowed Perez's pistol the night before Little's murder and was therefore in possession of a deadly weapon. Upon Appellant's request, the State filed notice of its intent to use evidence of Appellant's extraneous offenses. The list of extraneous offenses provided with the notice did not include any information regarding Appellant's possession of a deadly weapon. There is no allegation that Appellant used a firearm during the commission of the offense nor is there any direct evidence that a firearm was used in its commission. Therefore, Appellant argues this was evidence of an extraneous bad act, admitted without proper notice required of the State by Rule 404(b) of the Texas Rules of Evidence. The State argues that Appellant borrowed Perez's pistol shortly before the murder and returned it shortly thereafter. There was no evidence of forced entry into Little's apartment and the medical examiner found no defensive wounds on her body. The State theorized that the pistol could have been used to gain entry into Little's apartment and to compel her to have sexual relations with him. The State contends that because the crime or misconduct arose in the same transaction, the conduct in question was not extraneous but same transaction contextual evidence, part and parcel of the offense for which Appellant was tried. Therefore, the State insists, no notice of the misconduct was required under 404(b), and the trial court did not err in admitting evidence of it. If, as the State contends, the evidence of other bad acts is same transaction contextual evidence, Rule 404(b) does not require the State to give notice to the accused of its intent to introduce evidence of those bad acts in its case-in-chief. Hodge v. State , 940 S.W.2d 316, 319 (Tex.App.-Eastland 1997, pet. ref'd). Applicable Law Rule 404(b) states, as follows:Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.Tex.R.Evid. 404(b) (emphasis added). Rule 404(b) by definition excludes from the notice requirement crimes arising in the "same transaction." Therefore, same transaction contextual evidence is not subject to the requirement in Rule 404(b) that the State must give the accused notice of the State's intent to introduce such evidence. Hodge , 940 S.W.2d at 319. In Mayes v. State , 816 S.W.2d 79 (Tex.Crim.App. 1991), the court of criminal appeals recognized that the term "res gestae" for background evidence refers to other offenses inextricably connected with proof of the charged offense as well as to other offenses that were merely part of the background of the primary offense and helpful to the jury's understanding. Mayes , 816 S.W.2d at 86. Another offense, wrong, or bad act is considered same transaction contextual evidence where the crimes are "intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof . . . of any one of them cannot be given without showing the others." Id. at 86 n. 4 (citations omitted). The other type of background evidence the court called "background" contextual evidence, which it defined as facts not bearing directly on the purely legal issues, but facts that merely fill in the background of the narrative and give it interest, color and lifelikeness. Id. at 87. In Ramirez v. State , 815 S.W.2d 636 (Tex.Crim.App. 1991), issued three weeks after Mayes , the defendant was charged with capital murder committed in the course of the burglary of a habitation. The victim's daughter testified that just before her mother died in her arms, her mother mumbled, "They raped me." The appellant in his confession stated that he and Hernandez had entered to steal the television. The court held that the evidence of sexual assault bore on the material issue of Ramirez's burglarious intent and was admissible. "[T]he sexual assault was a part of the criminal transaction and not an extraneous event." Id . at 642. "Circumstances of the offense which tend to prove the allegations in the indictment are not extraneous offenses." Id. at 643. In Camacho v. State , 864 S.W.2d 524 (Tex.Crim.App. 1993), the indictment alleged that Camacho committed murder while in the course of burglarizing Sam Wright's home. After entering the house with several armed men demanding repayment of an alleged $20,000 drug debt, Camacho shot the victim, David Wilburn, when he came to the Wright residence. Wright escaped from the house. Camacho fled taking Wright's son and spouse with him to Oklahoma. Several days later, members of the appellant's group killed both the son and the spouse. Although there was strong, uncontradicted proof of the murder, the court held that State was entitled to introduce evidence of the appellant's intent, and that the evidence of the Oklahoma murders four days after the charged offense was same transaction contextual evidence. Id. at 532. Another case in which the court of criminal appeals held a legally distinct and arguably remote offense to be part of the same transaction was Santellan v. State , 939 S.W.2d 155, 168 (Tex.Crim.App. 1997). Santellan was accused of murder in the course of kidnapping. Santellan claimed the trial court should not have admitted evidence that he had sexual relations with the victim's corpse for two days following the murder. The evidence of the sexual abuse of the victim's corpse, the court said, was crucial to the State's argument that the appellant had the special intent necessary for attempted kidnapping, and, therefore, capital murder. Although the abuse of the victim's corpse was a legally separate offense, the court held it was not extraneous to the charged offense, and evidence of it was same transaction contextual evidence. Application of Law to Facts In the case at bar, the State had the burden of proving Appellant's intent to kill Summer Little as well as Little's lack of consent to sexual intercourse with Appellant. Appellant's act of arming himself shortly before the homicide was important proof of his murderous intent. That he was so armed serves to explain why her body had no recognizably defensive wounds, and therefore bears on the issue of the victim's lack of consent to sexual intercourse with Appellant. Appellant's return of the derringer within an hour or two of the crime at approximately the same time that he returned bloody-handed and told his girlfriend that Summer was dead connects his possession of the weapon even more closely with the crime. The evidence was probative of important issues in the case. Although it was a legally distinct offense, evidence of it was also significantly interwoven with the charged offense. Appellant's act in apparently carrying a prohibited weapon at the time of the murder was not an extraneous offense and evidence of it was same transaction contextual evidence. The State was therefore not required by Rule 404(b) to give Appellant notice that it intended to introduce evidence of it in its case-in-chief. The trial court did not err, and Appellant's first issue is overruled.
Opinion of Guilt
In his second issue, Appellant maintains "[t]he trial court erred by allowing the admission of a police officer's opinion regarding the Appellant's guilt and commission of sexual assault." The record reflects the following testimony by Officer Byron Stewart:(BY THE PROSECUTION)
Well, did you, you recall talking to Shelly Lemon?
Yes.
Q. Did Shelly Lemon converse with you about any threats?
MR. LANE: Objection, Judge, what she said to him would be inadmissible hearsay.
THE COURT: Just ask at this stage if he conversed with her. Overruled.
Q. (BY MR. POE) Let me rephrase this. After speaking with Shelly Lemon did that strengthen you[sic] view that Nathaniel does[sic] was guilty or weaken your view?
MR. LANE: Objection as to his opinion as to guilt or innocence, Judge. That's really up to a jury. That's not up to a detective from Arlington. I object to the form of the question.
THE COURT: Overruled.
Q. (BY MR. POE) You can answer that.
A. Yes, it strengthened my view.Appellant argues that the evidence was particularly harmful in this case because, in his view, the evidence of sexual assault was weak. No blood or semen connected Appellant to a sexual assault of Little. The hair on her body could not be forensically matched with Appellant's. The autopsy revealed a small abrasion to the anus. When Detective Stewart testified that his conversation with Shelly Lemon reinforced his opinion that Appellant was guilty, the jury had already heard Lemon's testimony. Lemon's testimony concerned her overhearing Appellant threaten Little on the telephone because she owed him fifty dollars. She said she heard D.J. (Appellant) tell Little he had killed for less. Nothing in her direct testimony bore on the issue of sexual assault. The State concedes that no witness is competent to give an opinion on guilt or innocence. See Boyde v. State , 513 S.W.2d 588, 590 (Tex.Crim.App. 1974). An error in the admission of evidence should be disregarded unless it affected Appellant's substantial rights. See Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in the determination of the jury's verdict. King v. State , 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). An accused's substantial rights are not affected by the erroneous admission of evidence if the court, after examining the whole record, has fair assurance that the error did not influence the jury or had but slight effect. Solomon v. State , 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Before the challenged testimony, Detective Steward had testified without objection that the position of the body and his observation of the crime scene led him to conclude that Little had been sexually assaulted. Immediately before the challenged testimony regarding his conversation with Shelly Lemon, Detective Stewart again stated his opinion that the appearance of the crime scene led him to conclude that a sexual assault had taken place. Appellant admitted to Selena that he had had sexual intercourse with Little which he said "started out" to be consensual. All the other evidence in the record indicates Little was justifiably afraid of Appellant, and therefore highly unlikely to voluntarily submit to sexual intercourse with him. He had harassed Little for several months before her death with lewd suggestions as well as murderous threats. Little's battered body was found nude with her face and upper body face down in the bathtub with her legs hanging over the side. She had a small abrasion on the anus. Bloodstains were found in both the upstairs and downstairs bathrooms. The apartment was in total disarray; her shorts and bra were in the living room, a bloodstained tee-shirt was on the television, and her panties were in the upstairs bedroom. Considering the challenged testimony in the light of the entire record, we conclude that the improperly admitted evidence had no substantial or injurious effect on the jury's determination of its verdict. Appellant's second issue is overruled.