Opinion
No. 05-11-00633-CR
08-10-2012
RODNEY LEE LUCKETT, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED and Opinion Filed August 10, 2012.
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 29447-422
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
Rodney Lee Luckett is serving a life sentence for the murder of Jeremiah Lee and twenty years in prison for the aggravated assault of Jeremiah's brother, Carl. Luckett challenges the trial court's denial of his Batson motion prior to seating the jury in his criminal trial and his motion for mistrial based on excessive police presence in the courtroom and on the courthouse grounds. He also appeals rulings regarding the admission of fifteen photographs showing his multiple tattoos, cross- examination about an extraneous aggravated robbery offense, and jury argument regarding that offense. His last point of error is a claimed Crawford violation that he raises for the first time on appeal. We affirm. Background
Luckett's attorney told the jury in closing argument that this was not a typical murder case because "we all know who done it." He argued the only question is, "[W]as the issue of self-defense raised, and was it proven." He admitted there was a drug deal involved, but said that was not really the issue. He also commented that everybody had tattoos, everybody was a felon, and there was another pending case against Luckett for aggravated robbery or "another dope deal," but those were not the issues. He then argued that the evidence, which included Luckett's own testimony, showed self-defense. The jury rejected Luckett's defense and delivered a guilty verdict.
The focus of Luckett's argument at trial and on appeal is the murder of Jeremiah Lee. He was charged and convicted of that murder and the aggravated assault of Jeremiah's younger brother, Carl. The trial lasted three days and both sides called multiple witnesses, many of whom were present at the time of the altercation and shootings. The eyewitness testimony was replete with inconsistencies and conflicts. Luckett does not challenge the sufficiency of the evidence on appeal, so we limit our discussion to background information necessary to address his six points of error.
Police Presence
Luckett argues in his first point of error that the trial court erred by failing to grant his motion for mistrial. Specifically, Luckett argues an excessive police presence in the courtroom and on the courthouse grounds created an indicia of guilt and deprived him of his right to a fair trial.
The presence of guards is not inherently prejudicial. Sterling v. State, 830 S.W.2d 114, 118 (Tex. Crim. App. 1992). Luckett therefore is required to show actual prejudice. Id. He does not. He argues only that the "show of force created a distraction that was supported by the record and it cannot be believed that this did not have a significant effect on the jury's feelings about [Luckett]." The record shows that before the trial court allowed the parties to conduct voir dire, Luckett's counsel moved to dismiss the jury panel and for a mistrial. He claimed the presence of a number of law enforcement personnel "would extend an indicia of guilt" to Luckett. Counsel specifically identified that four deputy sheriffs were within approximately fifteen feet of the defendant when the trial court was speaking to the panel. Additionally, counsel noted the trial court had introduced five deputy sheriffs who were at the back of the courtroom. He described the layout of the courthouse and the presence of deputy sheriffs at each stairwell and the elevators. He also emphasized the presence of four deputy sheriffs at the metal detector, where there typically were two, and two uniformed and two civilian-clothed deputy sheriffs on the grounds outside the courthouse.
The trial court denied the motion for mistrial but allowed defense counsel to ask the potential jurors whether the police presence affected the presumption of innocence. During voir dire, Luckett's counsel described in detail the number and location of the officers listed above and asked several questions, including: "Is there anybody here who just can not presume [defendant] to be innocent or let me say it in the negative. Is there anybody here who has already presumed him to be guilty just because what you see and what you've already heard?" No one responded. The panel also agreed it understood counsel's concern. Later in the voir dire, a potential juror asked the one question Luckett cites as the basis for his argument that the "show of force created a distraction that was supported by the record": "You said something about all the officers that's around everywhere. Is this just because of this case or is this ordinarily what goes on at this courthouse with all of the officers around[?]" Counsel responded that he could not answer the question or comment further, to which the potential juror replied, "Okay."
Following voir dire, counsel asked the trial court to order fewer police personnel because of the alleged difficulty of giving Luckett "the presumption of innocence when everywhere you look there's a police officer." The trial court stated it had concerns about security for the safety of Luckett as well as for others. The trial court also said it had reason to believe there "may be some security issues involved in connection with the trial of [the] case" and denied the motion.
The only "distraction" appellant cites on appeal was the juror's question of whether the officers were present "just because of this case." The question, however, followed defense counsel's detailed discussion of the location of officers in the courthouse and on the grounds. No jurors made any further comments, the venire panel indicated as a group that it understood counsel's concerns and questions, no individuals stated or indicated the presence of officers created a presumption of guilt in their minds prior to hearing any of the evidence, and there was no further discussion about the presence of the officers. Additionally, the trial court and counsel repeatedly instructed the panel regarding the presumption of innocence and the State's burden to prove its case beyond a reasonable doubt. Luckett does not point to any disturbance or confusion caused by the presence of the officers, and we cannot assume the existence of any circumstance or fact not represented by the record. Id. Luckett's argument that "it cannot be believed that this [show of force] did not have a significant effect on the jury's feelings about [Luckett]," given this record, is insufficient to show actual prejudice. We conclude the trial court did not abuse it discretion by denying Luckett's request for a mistrial. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (applying abuse of discretion standard of review). We overrule the first point of error. Batson Challenge
Luckett claims in his second point of error that the trial court erred by overruling his Batson challenge. After the panel was selected but before the trial judge swore in the jurors, Luckett moved to dismiss the entire panel based on a claim of racial pretext under Batson v. Kentucky, 476 U.S. 79 (1986). Counsel noted for the record that Luckett was an African-American and, of the first thirty- five potential jurors, there were nine African-Americans. Only one African-American juror was seated. Luckett's counsel admitted he struck one of the nine, juror thirteen. He argued to the trial court that only two of the nine made any comment-juror thirteen whom he struck because he was a retired DPS officer and juror twenty-eight (who was seated as a juror). He also argued the State had asked no questions of either of those jurors.
For description only, the venire members are referenced as "jurors" regardless of whether they eventually were seated on the jury panel.
The State responded that after the "obvious initial strikes," it had plenty of strikes available to have struck those two remaining African-Americans and it had not done so. Counsel added that although none of the jurors he struck had commented, he could base a strike on the juror information cards and the appearance of the jurors. Counsel explained his strikes as follows:
[Juror one] was wearing earrings in both ears, and he had huge clunky jewelry on both hands; and he appeared to be attempting to draw attention to himself. I would use that same basis, that is a juror attempting to stand out, as a basis for striking any juror, white, black, Hispanic. It would make no difference.
. . .
[Juror ten] did not give an occupation for the spouse, and she shows that she has been employed for a very short period of time. I always attempt to strike people who have what appears to be an unstable unemployment history, particularly if it appears that the juror and the spouse both appear to have an unstable employment history as in this case where the husband is unemployed and the juror has been employed for a very short period of time.
. . .
[Juror eleven] also has a very short employment history, and his spouse also has no evidence of employment history. That was the juror, your Honor, that had a very strange - had his hair pulled back, and it was sort of in a bun in back. That seemed highly unusual, inappropriate for a male juror or otherwise. It seemed extremely odd in appearance. And so therefore, based on the odd hairdo and the short employment history and no employment for the wife, that juror was struck.
. . . [Juror fourteen] the thing that, as I'm sure anybody that knows me, Judge, will point out, anything like an accountant, a mathematician, an engineer, anybody that has odd, extremely strict, precise requirements for conviction I don't like and always try to strike those. This juror put the age of her child as .3 years, which seemed extremely odd to me. I'm thinking teacher, must be a math teacher; and I always strike accountants, mathematicians. If I have the strikes, I will always strike those kind of jurors.
. . .
[Juror twenty-seven] I struck her because she's 54, single, never married, no children, working in a nursing home. I don't like older, single, no relationship, apparently in a lifetime, no relationship type jurors, and she fit that criteria.
. . .
[Juror thirty-one] was extremely attentive to [defense counsel's] voir dire. She was nodding strenuously when he was talking about not presuming defendant[] to be guilty, which I understand is a correct statement of the law. But her what seemed to be extreme interest in [counsel's] voir dire made her to me appear to be a very bad juror for the State.
. . .
[Juror thirty-three] had an extensive criminal history, small violations, not felonies that would disqualify him. But he had evading arrest, impersonating a police officer. There were two other offenses. I don't remember what they were. But he was struck because he had what appeared to be a lot of criminal history as a defendant.
The trial court concluded the State had proffered race neutral reasons for making the strikes following counsel's recitation. After that, Luckett's counsel stated he had "nothing substantive" to offer and asked the trial court to include the juror information cards for the record, which it did. The trial court denied the Batson challenge.
Luckett argues on appeal that the State purposefully excluded seven of the nine African- American jurors based on race. The purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002) (citing Batson, 476 U.S. at 88-89). The trial court engages in a three-step inquiry when a party makes a Batson challenge. Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per curiam); Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). Step one requires the challenger to make a prima facie showing of purposeful discrimination in the exercise of peremptory strikes. Purkett, 514 U.S. at 767. A prima facie case of racial discrimination is made by showing facts and relevant circumstances that raise an inference that the striking party used peremptory strikes to exclude jurors because of their race. J.E.B. v. Alabama, 511 U.S. 127, 144-45 (1994). Upon that showing, the second step of the inquiry requires the proponent of the strike to present a race-neutral reason for the strike. See Miller-El v. Cockrell, 537 U.S. 322, 328 (2003); Grant, 325 S.W.3d at 657. An explanation will be deemed neutral unless a discriminatory intent is inherent in the explanation. Hernandez v. New York, 500 U.S. 352, 360 (1991).
The third step of the analysis requires the trial court to determine if the challenger has established purposeful discrimination. See Grant, 325 S.W.3d at 657. In doing so, the trial court considers the ultimate plausibility of the neutral explanation offered. Purkett, 514 U.S. at 768; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). The trial court's ruling must be sustained unless it is clearly erroneous. Grant, 325 S.W.3d at 657; Watkins, 245 S.W.3d at 448. In examining the trial court's ruling, we examine the entire record without limiting ourselves to arguments or considerations the parties specifically called to the trial court's attention if those arguments or considerations are manifest in the appellate record. Watkins, 245 S.W.3d at 448. We review with "great deference" the trial court's conclusion that a peremptory strike is genuine, rather than a pretext. Id. We also review the record of the Batson hearing and the voir dire proceeding in the light most favorable to the trial court's decision. Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009). Luckett does not suggest the State's stated reasons for striking the seven African-American jurors were not facially neutral. Instead, and for the first time on appeal, Luckett relies on Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990), to argue the State's reasons for striking the African-American jurors were not applied equally to "whites who were not struck" and the State asked no questions of those jurors. He specifically references four jurors who are described below. The State argues that Luckett has waived his claim of disparate treatment because he raises his analysis of the juror information cards for the first time on appeal.
Once the State presented race-neutral explanations, it was the trial court's duty to determine whether Luckett established purposeful discrimination. Grant, 325 S.W.3d at 657; Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). A comparative analysis of reasons given for striking various jurors does not have to be presented to the trial court to preserve a Batson claim for appellate review. See Young, 826 S.W.2d at 145-46; id. at 150 (op. on rehearing). The appellate court thus may consider Luckett's comparative analysis for the first time on appeal, provided the evidence being argued was before the trial court at the time of the voir dire and Batson hearing. See Adair v. State, 336 S.W.3d 680, 687 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (noting that in Young, court of criminal appeals held defendant not required to request comparison analysis to preserve issue, but defendant limited to evidence in record).
The State also argues the juror information cards were not admitted into evidence and may not be considered. The trial court allowed the cards "for record purposes only," and they are part of our record on appeal. The juror information cards may be considered on appeal if counsel referred to the responses during the Batson argument and it is apparent the parties and trial court regarded the cards as part of the evidence considered by the trial court. See Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993). The State expressly relied on the juror-information cards in explaining the jurors' answers as part of its explanation for using its peremptory strikes. Accordingly, we will consider Luckett's argument.
In his first comparison, Luckett argues juror nine, identified as a "White," forty-eight year old, divorced female with one year of employment history should have been struck when her information is compared to the State's reasoning for striking jurors ten and eleven-that it always attempts to strike people with an unstable employment history. In contrast, however, juror nine showed six years of employment and jurors ten and eleven each showed only one year of employment and both had unemployed spouses. The record also shows that the State struck juror thirty-four, identified as a "White" female with only "18 months" of employment.
Luckett next argues the State allowed juror ten, a "Caucasian" male teacher, to be seated and struck juror fourteen, an African-American teacher. The State's explanation for striking juror fourteen, however, was the precise notation that her child was ".03" years old. No other juror listed a child's age in decimal points, regardless of race or occupation.
In another comparison, Luckett states that seated-juror eleven, a "Caucasian" fifty-two year old divorced female is comparable to juror twenty-seven, identified as never having been married. The State's explanation for striking juror twenty-seven, however, was her lack of relationship "apparently in a lifetime." In contrast, seated juror eleven was divorced with two adult children.
Finally, Luckett compares seated juror twelve, an "unemployed 35 year old Hispanic male," with jurors ten and eleven who had an "unstable work history." Seated juror twelve, however, also had a spouse who had been employed for six years. Luckett places summary reliance on Whitsey to claim the State's reasons for striking the seven African-American jurors, when considered in light of the State's failure to question the jurors to determine the perceived bias, showed pretext when those reasons were applied equally to non- African-American jurors who were not struck. In Whitsey, the trial court conducted an extensive Batson hearing, which included cross-examination of the prosecutor and evaluation of his voir dire notes that showed only a "B" next to several jurors he struck. Whitsey, 796 S.W.2d at 715. The court noted that among that evidence, counsel established on cross-examination of the prosecutor that he "had spent six to eight hours reviewing the voir dire transcript and that is when he came up with his explanations for his voir dire strikes." Id. at 716.
That juror appears to be fifty-five years old from the juror information card.
--------
Here, in contrast, the record is limited, Luckett offered no comparison or suggestion of disparate treatment at the time of the Batson hearing, and his attempted comparison on appeal, as described above, does not show clear error. While lack of oral questioning of a juror may be one factor to consider in determining pretext, its evidentiary value is significantly less where, as here, jurors were examined as a group. See Grant, 325 S.W.3d at 659-60. Additionally, the jurors' written answers can be just as valid an explanation for a peremptory strike as a response to an oral question, id. at 660-61, and our standard of review is "whether the trial judge's decision was supported by the record so that it is not clearly erroneous." Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992). Giving great deference to the trial court's credibility and demeanor determinations and viewing the trial court's ruling in the light most favorable to that decision, we conclude the trial court's denial of Luckett's Batson challenge is supported by the record and is not clearly erroneous. We overrule his second point of error.
Photographs of Luckett's Tattoos
The trial court admitted fifteen exhibits showing Luckett's multiple tattoos. Luckett appeals that ruling in his third point of error.
The challenged exhibits are State's exhibits 23 through 37. With the exception of exhibit 23, the photographs were taken at the jail while Luckett was wearing inmate clothes. As such, Luckett claims the pictures were an indicia of guilt and have no purpose but to prejudice him. He also argues none of the pictures were relevant or material and their prejudicial effects outweighed any probative value. Specifically as to exhibit 28, which showed a tattoo on his abdomen depicting the letters "REDRUM," meaning "murder" spelled backwards, he claims it was seized as a result of Luckett's incarceration and violates his Fourth, Sixth, and Fourteenth Amendment rights under the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure.
Responding to both the relevance and prejudice objections, the State argues the trial court was within its discretion in admitting each picture. It adds that Luckett's failure to make any constitutional objections at trial prevents Luckett from asserting those complaints for the first time on appeal.
We review decisions admitting or excluding evidence under an abuse of discretion standard; absent an abuse of discretion, we will not reverse a trial court's decision. See Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). No abuse of discretion occurs if evidence exists supporting the trial court's decision to admit the evidence; in that event, we must defer to the trial court's ruling. Id. at 538.
At the time the State offered exhibits 23 through 37, Luckett objected based on relevance. He objected alternatively "under 403 on the grounds that the probative value is outweighed by any prejudicial effect that the tattooed photographs might show." See Tex. R. Evid. 403. He also objected under rule 404 as an attack upon his character "by showing all these tattoos and multiple tattoos." See Tex. R. Evid. 404. He did not complain at the trial court that the photographs depicted him wearing inmate clothes. Luckett also never claimed the photographs were seized as a result of his incarceration or that such seizure violated his Fourth, Sixth, and Fourteenth Amendment rights under the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure. Even constitutional rights may be waived if not raised in the trial court. Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002). Accordingly, Luckett has not preserved his complaints that the photographs depict his inmate attire, to the extent they may, or that the photographs constitute an improper seizure. To the extent Luckett's objection at trial concerning what the "photographs might show" encompasses his complaint on appeal about inmate attire, we conclude this argument fails. The photographs are close-ups of Luckett's tattoos, and from the photographs, it is not apparent the limited clothing that was shown was prison attire.
We therefore address Luckett's arguments based on relevance and prejudice that he did bring to the trial court's attention. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1). Luckett describes the photographs as follows:
Exhibit 23 "'Pure' (picture of a Star) 'Love'" tattooed on his back
Exhibit 24 "MOB" on his arm
Exhibit 25 "'Gena' (picture of a basketball) 'Luckett', bullet-wound scar and below that (picture of a revolver)"
Exhibit 26 "(picture of a crown), then words, 'Bar TX None,' then a (picture of dice)"
Exhibit 27 "(picture of a star tattoo)"
Exhibit 28 "REDRUM" on his abdomen
Exhibit 29 "(picture of a paw print)" on his neck
Exhibit 30 "picture of a tattoo that appears to be a name" on his wrist
Exhibit 31 "what appears to be initials 'r l'" on his neck
Exhibit 32 "picture of what I believe is Jesus"
Exhibit 33 "(picture of a cross) and 'P'"
Exhibit 34 "picture of a tattoo that says 'Luckett'"
Exhibits 35-37 "pictures of a bullet wound prior to tattooing a revolver"
Evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant. Tex. R. Evid. 401. All relevant evidence is admissible unless provided otherwise by the rules of evidence, statute, or constitution. Tex. R. Evid. 402.
Luckett did not explain to the trial court or on appeal his relevance objection. The State argues the photos are relevant because Luckett claimed he was the victim of the altercation and was peacefully conducting his drug deal when the Lee brothers attacked him and forced him to defend himself. As to the "REDRUM" tattoo on Luckett's stomach, the State contends this "reverse spelling of murder" is relevant to Luckett's intent-that it is a provocative expression, "a virtual bumper sticker" of Luckett's attitude in favor of homicidal violence.
The witnesses agree the events leading to the shooting began with an altercation between Jeremiah and Luckett. Luckett testified the fight started because he was conducting a drug deal near the Lees' house and it was a "turf war" because the Lees also sold drugs. The State's witnesses testified the fight started as a result of Jeremiah telling Luckett he could not sell drugs in front of his mother's house.
Luckett testified Jeremiah hit him in the face. Describing the events leading up to the shooting, Luckett said the next thing he could remember was "they were all coming at me" and "all of a sudden I heard the gunshot." He said he realized he was shot in the arm, which "didn't hurt" him, and he "just pulled out [his] gun, and [he] went to shooting." He testified he was running with his eyes closed and shooting. He also confirmed on cross-examination a statement that he "would never point a gun at someone unless they pointed a gun at [him] first." In contrast, witnesses for the State testified Luckett pulled a gun after they broke up the fight, came up to the Lee house, and shot Carl in the arm and Jeremiah in the stomach. They said it was at that point that Carl ran into the house and returned with a .380 revolver and started shooting at Luckett, who was then running down the street.
The State argues Luckett's "choice of 'murder' as a tattoo tends to make less probable his claims that he was not the aggressor in these offenses and that he acted in self defense." Luckett denied the "REDRUM" tattoo was intended to spell "murder" backwards, and he claimed he would "never point a gun at someone unless they pointed a gun at [him] first." Thus, both the "REDRUM" and revolver tattoos are relevant to Luckett's self-defense claim and testimony.
Regarding the other tattoos, the State contends those photographs, when placed in context with the "REDRUM" and revolver tattoos, allow the jury to see that Luckett was not simply inclined towards violent body art as a matter of artistic expression. The State also stresses that the other photos in general are not gruesome, obscene, or disturbing and any possible error is harmless. Luckett does not respond to these arguments. He states only that the remaining tattoos must be irrelevant if the "REDRUM" and revolver tattoos are relevant to his defense. This record provides evidence to support the trial court's decision as to relevance, and we conclude it therefore did not abuse its discretion in admitting the photographs.
Luckett's other objection presented to the trial court is that the photographs were prejudicial. Other than arguments or reasons not disclosed to the trial court and made for the first time on appeal, however, he does not explain the basis for the claimed prejudice. Evidence that is otherwise relevant and admissible may be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; see also Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh'g). Rule 403 favors admissibility, and "the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389; see also Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).
In considering Luckett's challenge to evidence under rule 403, and assuming properly preserved, we must balance the inherent probative force of the evidence with the State's need for that evidence against (1) any tendency of the evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) any tendency of the evidence to be given undue weight by a jury not equipped to evaluate the probative force of the evidence, and (4) the likelihood the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389-93. We should reverse the trial court's balancing determination "'rarely and only after a clear abuse of discretion.'" Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)).
Our focus on whether the evidence is unfairly prejudicial is "whether it has a 'tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.'" Subirias v. State, 278 S.W.3d 406, 409 (Tex. App.-San Antonio 2008, pet. ref'd) (quoting State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005)); see also Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (explaining evidence might be unfairly prejudicial if "it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence"). Other than his excluded arguments, Luckett offers no analysis of how the photographs tended to tempt the jury to find guilt on grounds apart from the offense charged.
To begin, Luckett did not deny the offense charged. He claimed self-defense and testified in his own behalf. After the photographs were admitted, the only references were to the "REDRUM" and revolver tattoos. Luckett denied the "REDRUM" tattoo had a meaning of "murder," and his counsel argued simply that everyone had tattoos (and criminal records) and they were of no issue. The photographs were not cumulative of other evidence, they were not gruesome, and testimony related to the tattoos was brief. The "REDRUM" and revolver tattoos were especially probative of Luckett's intent and attitude relevant to his defense and testimony he would never point a gun at someone else first. No doubt, relevant evidence tending to prove guilt is prejudicial. Given Luckett's own counsel's indication that everyone had tattoos and criminal records, on both sides, there is no indication the evidence unfairly aroused the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence. See Casey, 215 S.W.3d at 880. We therefore conclude on this record that Luckett failed to overcome the presumption the photographs were more probative than prejudicial. We conclude the trial court did not abuse its discretion in admitting the exhibits and overrule Luckett's third point of error.
Extraneous Robbery Evidence
Asserting another evidentiary challenge, Luckett argues in his fourth point that the trial court erred by allowing evidence of a 2010 pending, unrelated aggravated robbery offense. That offense involved Luckett's alleged robbery and shooting of a man identified as Jackie Segura "over some crack cocaine." Luckett references rules of evidence 402, 403, and 404(b) in his point of error and argues specifically that the trial court abused its discretion by allowing "this irrelevant evidence of bad character."
It was the State who requested a hearing outside the jury's presence before questioning Luckett about the Segura robbery. The State approached the trial court and sought permission to go into the incident, arguing Luckett opened the door to the evidence based on Luckett's prior testimony that "he would never point a gun at anyone first." The State described Luckett's shooting of an unarmed man as alleged in that offense as exactly what Luckett said he would never do. The State also referenced Luckett's prior statement that he had never been "in that type of situation before," meaning a situation involving guns and "gun play." Luckett denied the door was opened for questioning about the robbery. He said his prior testimony was directed to the specific incident involving the Lee brothers. In other words, the 2010 Segura offense was after the Lee shootings and Luckett's statement he would never point a gun at anyone first was true with reference to the timing. Luckett made no further arguments, and the trial court ruled the State could question the witness. The questioning included the following exchanges:
Q Okay. You testified that you would never point a gun at someone first unless they pointed a gun at you, is that right?
A No, I don't even deal with guns anymore.
Q That's not what I'm asking. A minute ago when you testified, didn't you say you would never point a gun at someone unless they pointed a gun at you first? Isn't that what you just said?
A Yes.
Q Let me direct your attention to July the 11th of 2010, after you had been released from jail on this murder case. Do you recall coming in contact with a person named Jackie Segura?
A No.
Q Never been around Jackie Segura?
A No, I don't know him.
The questioning continued without objection. The only subsequent objection was when the State was asking Luckett about the gun used in the shooting of the Lee brothers and the State asked if it was the same gun Luckett had in 2010. After first objecting, Luckett's counsel agreed the State could ask about the gun used in the Lee shootings.
After the defense rested its case, the State called Segura as a rebuttal witness. After first presenting Segura to the trial court and Luckett's counsel, with no objection, the State questioned Segura before the jury, again without objection. Luckett objected once to "leading." Thereafter, Luckett's counsel questioned Segura extensively, including questions about the incident being a "drug deal gone bad."
On appeal, Luckett asserts the various witnesses offered contradictory evidence and evidence of the extraneous offense "severely undermined [his] self-defense claim." He also argues the evidence allowed the State to argue improperly to the jury that three men were shot because of Luckett, which is Luckett's fifth point of error described below.
We first address whether Luckett preserved his complaint for appeal. The State requested the hearing before questioning Luckett about the extraneous offense because of his pretrial omnibus motion as to admission of any extraneous offenses. In response to the State's proffer, Luckett argued only that the door had not been opened because the offense occurred after the ones on trial and Luckett was testifying to his conduct as of the date of the offenses on trial. He made no other objection-he made no objections under rule 403 (prejudice) or rule 404(b) (extraneous offenses to prove character to show action in conformity therewith). Accordingly, Luckett has not preserved any objections under those rules. See Tex. R. App. 33.1(a).
Assuming without deciding Luckett made and did not waive a relevance objection, it fails. Luckett's defensive theory was that he was a peaceable drug dealer, he did not use guns, and that the Lee shootings were an isolated situation. His sole argument to the jury from the beginning was the question of self-defense, which Luckett's counsel told the jury it had to decide. Luckett even argues the evidence involving the Segura offense "severely undermined [his] self-defense claim." We conclude Luckett has not shown error and overrule his fourth point of error.
Jury Argument
Luckett's fifth point of error is based on a claim the State was allowed to argue improperly to the jury that "Jeremiah Lee, Carl Lee and Jackie Segura were shot because of [Luckett]." In support of his two-paragraph argument, he asserts the cumulative nature of all the errors in the case cannot "guarantee that the improper arguments did not influence the jury's verdict, or that they had only a slight effect, which required reversal." The State responds that Luckett failed to preserve error and the State properly urged the jury to consider the similarity between the shooting of Jeremiah and the extraneous offense against Segura in determining Luckett's intent.
We conclude Luckett failed to preserve error. Specifically, at the point Luckett objected to "the use of Segura," there had been extensive argument, including the following:
But he did say, I wrote this down, I tried to get it word for word. He did say I would never point a gun at anyone first. Part of his self-defense. You all remember that. Never point a gun at anyone first. I was just defending myself.It was at that point that Luckett objected that the State was not using Segura's testimony for the limited purposes expressed in the charge. The trial court overruled the objection but instructed the jury to follow explicitly the instructions in the charge. Luckett made no further objection and did not move for a mistrial. To preserve error regarding allegedly improper jury argument, Luckett had to make a timely and specific objection. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (jury argument complaint waived in absence of proper and timely objection). He failed to do so. We therefore overrule Luckett's fifth point of error.
Well, then along comes Jackie Segura; and the date of that was July the 11th of 2010. Jackie Segura, who showed you his bullet hole made by this defendant; and it turns out Jackie Segura never had a gun. Nobody else out there had a gun except somebody else with him. And he's just trying -- what's he trying to do when he gets shot by this guy? He's just trying to get away. This guy's already stolen Jackie Segura's drugs or Jody Wood's drugs or whoever's drugs they were. They've already got the drugs. There's no reason to shoot him. He's not armed. He's not threatening. He's trying to get the car in reverse and just get out of there; and this guy walks over to the driver's window and caps him, right? And where does he shoot him? Right in the stomach. Where did he shoot Jeremiah? He shoots one of them right here, (pointing), and he shoots one of them right here, (pointing).
There's a miracle. Well, it's not a miracle if you're aiming carefully, and that's where your target is, center mass, that he hits both of them in the same place. 'Cause he's coming in from the driver's window, he hits Jackie Segura right here, (pointing), and he shoots Jeremiah Lee right here, (pointing). About that far from each other, (demonstrating).
Confrontation of Witnesses
Luckett contends in his sixth point of error that he was denied his constitutional rights to confront witnesses against him because Carl passed away sometime after the incident and not as a result of the shooting. He argues "Carl Lee's out-of-court statements to law enforcement triggered the aggravated assault investigation and charge against [Luckett]." Luckett does not identify what statements he suggests were a violation of his rights. The record references are to testimony of Charles Fields, who was present during the incident and testified to his observations.
The State contends Luckett failed to preserve any error and additionally waived any error by eliciting substantially the same testimony during cross-examination. The State also argues any statements by Lee were not testimonial and thus did not implicate the confrontation clause.
The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. U. S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406 (1965). Specifically, the Confrontation Clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). To preserve error for appellate review, a defendant must lodge a timely, specific objection. See Tex. R. App. P. 33.1(a)(1). Luckett, as the defendant, bore the burden of making a confrontation clause objection at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n.3 (2009). A defendant waives even his constitutional right to confront witnesses if he does not object at trial to the denial of that right. Id.; Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991).
Luckett does not identify any specific statements by Carl that he claims violated his right to confront the witness. He does argue in his brief that "[u]nobjected to hearsay from Carl came in." The record references Luckett makes in his brief include both direct testimony by Fields as well as cross-examination by defense counsel. Luckett makes no objections to that testimony, and he appears to admit the lack of objection by his reference to "[u]nobjected to hearsay." Assuming any unidentified statements by Carl were testimonial and violated Luckett's Sixth Amendment right to confront witnesses, Luckett did not meet his burden of objecting to such evidence. Accordingly, he has waived any error. Melendez-Diaz, 557 U.S. at 314 n.3; Holland, 802 S.W.2d at 700. We overrule Luckett's sixth point of error.
Conclusion
Luckett's sole recitation that one juror asked if the number of sheriff's deputies were present "just because of this case" was insufficient to show actual prejudice where the record showed the question was asked after Luckett's counsel engaged in a detailed discussion of the number and placement of deputy sheriffs and questioned the venire panel regarding the presumption of innocence, and no person indicated that the officers were a distraction or affected the presumption of innocence. We also conclude the trial court's denial of Luckett's Batson challenge is supported by the record, and Luckett's attempted comparative analysis of reasons given for striking specific jurors does not show the pretext he asserts. To the extent Luckett preserved objections to photographs of his tattoos based on relevance and prejudice, the tattoos of "REDRUM," meaning "murder" spelled backwards, and a revolver added to his wound received in the gunfire with the Lee Brothers were relevant to his claim of self-defense; the only prejudice asserted-his attire in prison clothes and improper seizure-was never presented below and were not preserved for review. Similarly and with the possible exception of relevance, Luckett failed to raise, and thus preserve, objections to testimony related to an extraneous aggravated robbery offense on grounds of prejudice and improper character evidence. The evidence he shot an unarmed man was relevant to his claim of self defense and especially his testimony that he "would never point a gun at anyone first." Any alleged improper jury argument based on that extraneous offense was supported by the evidence allowed and further was not preserved when he allowed extensive argument prior to objecting. Finally, and to the extent Luckett may have had a Crawford issue, he may not present the issue for the first time on appeal. Accordingly, having overruled Luckett's six points of error, we affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110633F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RODNEY LEE LUCKETT, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00633-CR
Appeal from the 422nd Judicial District Court of Kaufman County, Texas. (Tr.Ct.No. 29447- 422).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 10, 2012.
MARY MURPHY
JUSTICE