Opinion
No. 05-05-00276-CR
Opinion filed August 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 050869. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
A jury convicted Scott Wayne McMenamy of the murder of James West and assessed punishment at fifty years' imprisonment. In points of error one, two, and four, appellant challenges the admission of certain testimony. In his third point of error, appellant contends the trial court erred in instructing the jury as to possible provocation by appellant. In his fifth point of error, he challenges the sufficiency of the evidence supporting his conviction, contending there was sufficient evidence to prove he acted in self defense. For the reasons below, we overrule appellant's five points of error and affirm the trial court's judgment.
I. BACKGROUND
Appellant and West had known each other for about six months before the incident, which occurred on August 21, 2003, in Denison, Texas. At the time of the incident appellant was about thirty years old, and West was twenty-nine years old; West was taller and heavier than appellant. They did not like each other and avoided each other. Despite efforts to keep them apart, they met in front of the house of a mutual friend, Lacy Wolf, and appellant shot West. Appellant testified that he acted in self defense. Appellant was indicted for intentionally or knowingly causing the death of West by shooting him with a firearm. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). The jury was charged as to the elements of the indicted offense, use of deadly force in self defense, and "provoking the difficulty."II. ADMISSION OF EVIDENCE
Points of error one, two, and four concern the admission of certain testimony.A. "Are You Aware" Questions
In his first point, appellant contends the trial court committed reversible error by allowing the State to improperly impeach a fact witness (Djiuna Myers) with "are-you-aware" questions concerning two prior incidents when appellant pulled a gun on his girlfriend and his brother. In his second issue, appellant contends the trial court committed reversible error by denying his motion for mistrial as a result of the State's improper impeachment of Myers. Appellant argues these two issues together. The State replies that appellant failed to preserve error on both points by failing to make an adequate, timely objection on the grounds upon which he bases his complaints on appeal.1. The Record
On direct examination, Myers testified that she knew appellant and West, they disliked each other, and West had a bad reputation for being peaceful. On cross-examination, the State asked Myers what appellant said about West, and Myers replied, "Just that if he was ever approached by [West] that he was going to have to have an equalizer, because [West] was a very big man." After Myers testified that she had never seen West with a weapon before "but that didn't mean he didn't carry one, either," the following exchange occurred:Q. Okay. But you never have seen him with one?
A. Right.
Q. How many times had you seen the defendant with a gun?
A. Several.
Q. So, he was known to carry one; is that right?
A. Yeah, he was.
Q. Okay. So, would you consider that his equalizer?
A. No, not necessarily.
Q. Okay.
A. I never seen him pull it out on anyone.
The prosecutor requested a bench conference and argued that Myers "opened the door to allow me to question her if she is aware of the other incidents where he has pulled a gun" and that Myers's statement opened the door for a question "Are you aware on such-and-such dates that he did pull a weapon on somebody[?]" Appellant's counsel said she had to hear what specific instances the State was referring to. The State described them, and counsel said the questions sought hearsay evidence. The State repeated, "I think it opens the door to are-you-aware questions." Counsel said that are-you-aware questions "have to be factually based." After the trial judge said he would allow the question, appellant's counsel stated, " I would object, but I would also ask for a limiting instruction."
The court asked, "What kind?" Counsel then stated, "I mean, if — because she's trying to bring up extraneous offenses. She's trying to bring up extraneous offenses in asking these have-you-heard questions, especially if — well —" The court said, "There is really not proof in [sic] extraneous offenses, it is just asking a question about whether she had knowledge of something."In the jury's presence, the State asked Myers whether she was aware of two occasions when appellant pulled a gun on his girlfriend and his brother. Myers replied in the negative. After further questioning, the trial adjourned for lunch. Before the trial resumed, appellant's counsel moved for a mistrial based "upon the prior objection and the questioning of the have-you-heard questions in regard to the two specific acts of misconduct that were elicited." Counsel stated that Myers "testified to her personal knowledge, not to an opinion. And under 405, you cannot impeach a witness's personal knowledge with specific instances of conduct with have-you-heard questions." The trial court adjourned to consider the issue. The next day of trial, the trial court gave the jury an extraneous offense instruction limiting the jury's consideration of any evidence of extraneous offenses to determining appellant's intent. Appellant did not object.
2. Applicable Law
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was make to the trial court by a timely objection or motion that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context, and obtain a ruling or a refusal to rule on the objection. Tex.R.App.P. 33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997) (applying former rule of appellate procedure 52(a)). If the objection at trial does not comport with the complaint on appeal, the complaint is not preserved for review. Routier v. State, 112 S.W.3d 554, 586 (Tex.Crim.App. 2003) (citing rule of appellate procedure 33.1(a)).3. Discussion
Appellant's timely objection, that is, before the complained-of testimony was admitted, was the objection italicized above." I would object" is a general objection. When considering the sufficiency of an imprecise objection, because we "look to the context of each case in order to see if the ground of the objections was apparent, we must look at each situation individually as it arises." Heidelberg v. State, 144 S.W.3d 535, 538 (Tex.Crim.App. 2004). Appellant's argument as to are-you-aware questions — that they "have to be factually based" — goes to whether a sufficient predicate existed for the testimony's admission, not whether they were improper impeachment questions. Consequently, we cannot conclude that the general objection-as clarified by the argument at the bench conference-comports with the complaint on appeal. Because appellant has failed to preserve his complaint, we overrule his first point of error. See Routier, 112 S.W.3d at 586. Moreover, we also conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. First, to the extent appellant's motion for mistrial asserted insufficient predicate, appellant waived this complaint by his untimely objection. Second, to the extent appellant makes any other challenge, he failed to properly object and obtain a ruling. See Tex.R.App.P. 33.1(a)(1). Accordingly, we overrule appellant's second point of error.C. Extraneous Offense Evidence
In his fourth point of error, appellant contends the trial court committed reversible error by allowing the State to question him regarding the extraneous offense of methamphetamine use immediately before the incident. Appellant specifically argues the evidence was inadmissible pursuant to rule of evidence 404(b). The State responds the evidence was properly admitted to show appellant's state of mind Before cross-examining appellant, the State approached the bench regarding admission of extraneous offenses. The State argued that, by raising self defense, that is, he had no intent to kill West, appellant raised the issues of his state of mind and ability to perceive under rule of evidence 404(b). Appellant objected that the evidence had no bearing on his state of mind and that it was irrelevant and its prejudicial effect outweighed any probative value. The trial court overruled appellant's objections. The State then questioned appellant about the drug use, which he admitted.1. Standard of Review and Applicable Law
We review the trial court's decision to admit evidence under an abuse of discretion standard. Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003); Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). We reverse the trial court's decision only if it is outside the zone of reasonable disagreement. Allen, 108 S.W.3d at 284; Salazar, 38 S.W.3d at 151. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Such evidence may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). After the opponent objects to the evidence under rule 404(b), the proponent has the burden to satisfy the trial court that the evidence is relevant for a purpose other than character conformity. Saxer v. State, 115 S.W.3d 765, 774 (Tex.App.-Beaumont 2003, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex.Crim.App. 1991) (op. on reh'g)). If the extraneous act/offense evidence is not relevant apart from supporting an inference of character conformity, it is inadmissible under rule 404(b). Id. Evidence is relevant when it logically serves to make more or less probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive evidence that undermines an elemental fact. Id. Determining the relevance of any given item of evidence is a function of rule, logic, and the trial court's reliance on "its own observations and experiences of the world, as exemplary of common observation and experience." Montgomery, 810 S.W.2d at 391.2. Discussion
Appellant argues that the State did not present any evidence whether methamphetamine use could have affected his state of mind or capacity to perceive. However, in Saxer, 115 S.W.3d at 779, the Beaumont court of appeals found no abuse of discretion in admitting evidence of the defendant's methamphetamine use shortly before the crime, stating, "From the evidence of drug use, it may be inferred that defendant's reasoning was altered." That analysis applies here. We conclude the trial court did not abuse its discretion in admitting appellant's methamphetamine use immediately before the incident. We overrule appellant's fourth point of error.III. SUBMISSION OF ISSUE ON PROVOKING THE DIFFICULTY
Appellant objected to inclusion in the jury charge an instruction concerning the possibility that appellant had provoked the altercation with West. The trial court overruled the objection. In his third issue, appellant contends the trial court committed reversible error by improperly limiting his right to self defense by instructing the jury on provocation because there was no evidence he provoked the difficulty with West on the night of the offense.A. Standard of Review and Applicable Law
In analyzing a jury charge issue, our first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003); Posey v. State, 966 S.W.2d 57, 60 n. 5 (Tex.Crim.App. 1998). If we find error, we then analyze that error for harm. Middleton, 125 S.W.3d at 453; Posey, 966 S.W.2d at 60 n. 5. As a general rule, the use of force against another in self defense is not justified if the actor provoked the other's use or attempted use of unlawful force, unless the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter, and the other nevertheless continues or attempts to use unlawful force against the actor. See Tex. Pen. Code Ann. § 9.31(b)(4)(A), (B) (Vernon 2003). Provoking the use of force acts as a limitation or total bar on a defendant's right to self defense. Smith v. State, 965 S.W.2d 509, 512 (Tex.Crim.App. 1998). If the defendant provoked another to make an attack on him, so that the defendant would have a pretext for killing the other under the guise of self defense, the defendant forfeits his right of self defense. Id. A charge on provocation is required when there is sufficient evidence: (1) the defendant did some act or used some words that provoked the attack on him; (2) such act or words were reasonably calculated to provoke the attack; and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Id. at 513. All of these elements are questions of fact. Id. An instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. Id. at 514. Under such an analysis we ask if there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction. Id. Whether a defendant's acts were actually intended to provoke the difficulty is a question of fact for the jury to decide. Juarez v. State, 961 S.W.2d 378, 382 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).2. Factual Background
Lacy Wolf testified that, a few weeks before the incident, West came to her house while appellant was there. To avoid contact with appellant, West called Wolf from his cell phone that he was at her back door and would wait there until appellant left. On that occasion, appellant left and did not meet West. On the night West was killed, he called Wolf to tell her that he and a friend, Stevie Gibson, were coming over. Wolf then received a call from appellant, who said he wanted to come over. Wolf told him that West was coming over as well; appellant indicated he would not stay long. Appellant arrived at Wolf's house about 8:00 or 8:30 p.m. He parked his red Firebird (which he had bought the previous day) in Wolf's driveway facing the street. When Wolf reminded appellant that West was coming over and appellant should leave, appellant told Wolf that West did not know the car. Wolf replied that appellant's car was the only vehicle at her house. Wolf saw appellant's gun. Wolf never heard appellant or West threaten each other, but she had heard West call appellant a "punk." According to Wolf, while appellant was at her house, he talked to his girlfriend Rhonda Owen. After appellant arrived at Wolf's, West called, and Wolf told him appellant was there; West said he would wait until appellant left and he and Gibson would make other stops. Wolf walked appellant to the door, and a few minutes later she heard what she thought was a car backfiring. However, Gibson came to her door and said West had been shot. Rhonda Owen testified she had dated appellant for the previous two years and had been friends with West for about six months. She said West called her and told her he was going to Wolf's house, appellant was there, and Wolf had asked him to "be nice." Owen testified West said:I'm going to put an end to this shit. He said — and I asked him, I was — I asked him not to go over there and start anything. And he said — he said, I want to put an end to it. I'm tired of all of the bullshit. He said, I don't care if he's got a gun. He said, I'll take it away and use it on him or beat him with it or hit him — take it away from him and use it on him is what he said. He wasn't afraid. He wasn't intimidated.When asked whether this was the first time she had heard West make such comments about appellant, Owen responded, "About beating him up? No, no." According to Owen, she also talked to appellant in the evening, but she did not know where he was. Gibson testified she and West went to Wolf's house in her car. On the way, she and West discussed why they were stalling. West told her he wanted to avoid going to Wolf's because if he and appellant saw each other, they would probably fight, but Gibson did not believe guns would be involved. Gibson and West discussed that appellant was known to carry a gun, but West did not. According to Gibson, she drove up to Wolf's house at "a realistic speed for a residential area" and parked next to the curb in front of the driveway on the wrong side of the street because there was a car in Wolf's driveway. Gibson testified the car was running because "when I pulled up and I came to a stop, that is whenever the car started making movement." There was also testimony that the day after the incident Gibson told a police officer that the red car was pulling out of the driveway when she pulled up. Gibson testified the red car pulled out of the driveway and turned right, facing her car. The red car "stopped toward to the back of [her] car . . . in the middle of the street." It passed her car "a little bit" but not "totally." Gibson also testified that the red car "cleared my car." When the red car stopped, its passenger window was facing the back passenger window of Gibson's car. Gibson and West were still in the car, and according to Gibson she saw nothing that would have required the red car to stop. Gibson's and the red car's windows were rolled down, and she and West could see into the other car. When the red car stopped, West got out of Gibson's car and walked toward the red car; there was also testimony that Gibson told an investigating police officer that West jumped out of the car. According to Gibson, "[West] said, Do you think I'm a punk, and then the shots were fired immediately." Gibson did not hear appellant say anything to West. Gibson said West did not have his arms or hands up, did not rush the car, and did not approach in a threatening manner. After the shots were fired, the red car sped away. Gibson went to the back of her car "[b]ecause the red car was positioned more toward the back of my car, so that's where I figured that [West] would have been, you know, from the shots being fired." However, West was in front of Gibson's car, and there was blood from the passenger door to the front of the hood. There was testimony that appellant fired four shots. West was hit three times: first in the abdomen while he was standing near appellant's passenger window, second in the chest as he was turning to run away, and third in the leg as appellant leaned over in the car to shoot him. Appellant shot a fourth bullet over his shoulder as he drove away, which hit a mailbox. Appellant testified that West threatened him, often called him a punk, and said he would "whoop" appellant and take his money. According to appellant, West called him and made comments, and others told him about West's threats. Appellant described one incident when he was at a gas station and West drove in on the other side of appellant's pump; appellant realized who it was when West "holler[ed]" at him across the pumps and came towards his car. Appellant left. According to appellant, he did not know why they did not get along. Appellant admitted making comments to West but denied threatening him. Appellant testified he parked in the driveway facing the street because his car would "bottom out" on the driveway's dip. He testified he found out after he arrived at Wolf's house that West was coming over and decided to leave after West called and told Wolf that he and Gibson were on their way. Appellant testified it was dark by this time:
When I got in the vehicle, I saw headlights come on across the street, across the street up maybe a block, I guess, up a block, and that is when I started pulling out of the driveway, and I guess Stevie Gibson's car started pulling up real fast. It cut from one side of the street over to the other in front of the driveway.Appellant's testimony continued:
Q. What happened next?
A. I started to pull out of the driveway and turn, and they pulled up to the curb right there at the end of the driveway.
Q. Had you completed making your turn?
A. No.
* * *
Q. So, at what position — were you parallel to this car, or at an angle?
A. Well, like I said, I hadn't completed my turn yet. I wasn't no, I wouldn't be parallel, no.
Q. At then at this point in time, did you recognize the vehicle?
A. No.
Q. Could you see the occupants?
A. No.
Q. And then what happened.
A. When I was turning, the car's already stopped, the door flew open and then [West] came running from his car to my passenger side window. He had his right hand up in the air. And the way the car sits, you couldn't I couldn't see what he had in his had, if he had anything in his hand, because his hand was up above the window.
Q. And what was he doing with his other hand?
A. Reaching for the car door.
Q. Now, how much distance was there between the two cars?
A. Maybe six to eight feet.
Q. What, if anything, did you hear him say to you as he was coming toward you?
A. Do you think I'm a punk, or something like that.
Q. And what did you do?
A. At that time when I saw him running and realized who it was, when I was looking out the window and saw who it was and he was running at the car. I did have a pistol laying in the center console, right there, laying on top. That is when I picked the pistol up. By that time, when I looked up, he's already at the passenger side window and he's got — like I said, he had this hand up. I couldn't see this hand, what he had in this hand. This hand was reaching for the door handle. And that is when I shot twice and then I ducked down — I laid down in the seat and then I shot two more times out the window.
Q. Whey did you lay down in the seat?
A. Because after I shot twice, he was still standing. I could still see him out the window. He was still standing there after I shot twice. And I laid down, because, like I said, I didn't know what he had in his hand. His hand was up above. I didn't know if he had a gun or what he had in his hand.When asked "When [West] was coming at you, why didn't you just continue driving — drive off?" appellant replied, "Like I said earlier, by the time he got up to my car door, I wasn't completely turned to go straight. I was still in my turn by the time he came up to the window." When asked, "Did you have time to continue driving off at that instant?" Appellant replied," I didn't think so, no." Appellant testified he drove off, but he denied peeling or squealing his tires. However, an investigating police officer testified there were tire marks "start[ing] from where Ms. Gibson's car was parked, outside — on the street side of where her car was parked." They indicated a car "peeled out" from "a dead stop" to "a very high rate of speed" and "it was a real long set of tire marks."