Opinion
No. 06-16-00196-CR
11-29-2017
AMBER RAE MELTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court Hunt County, Texas
Trial Court No. 30697 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
While the record does not detail exactly how Robert Younger died, it is clear enough that, on July 20, 2014, the day Younger was to celebrate his sixty-ninth wedding anniversary, his lifeless, bruised body was found in a Greenville cemetery and that, later, Younger's Santa Fe SUV was found in the possession of Amber Rae Melton. Melton eventually admitted to having been in the vehicle the night Younger was hit and killed by some very large, blunt object, possibly his own vehicle. Melton stands convicted of felony murder for being responsible for Younger's death by a means involving his vehicle while Melton was in the process of committing felony theft of the vehicle. Melton, on appeal, claims that the evidence is insufficient to prove her guilty and that the trial court erred in admitting both the prior recorded statement of Austin Godwin and Melton's attempted theft of another vehicle a day before Younger's death. We affirm the trial court's judgment because (1) legally sufficient evidence supports Melton's conviction for felony murder, (2) admitting Godwin's prior testimony was within the trial court's discretion, and (3) admitting evidence of Melton's earlier attempted theft was within the trial court's discretion.
See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).
(1) Legally Sufficient Evidence Supports Melton's Conviction for Felony Murder
Melton asserts that the evidence is legally insufficient to support her conviction. We disagree.
In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. We defer to the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318-19).
The indictment alleged that Melton, while committing theft of Younger's vehicle, committed an act clearly dangerous to human life by pushing him out of his vehicle, striking him with his vehicle, dragging him with his vehicle, or running over him with his vehicle. Under the applicable portion of the murder statute, a person commits murder if he or she "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, [she] commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." TEX. PENAL CODE ANN. § 19.02(b)(3).
Melton's indictment used four alternative ways to charge the manner and means by which she committed an act clearly dangerous to human life. Melton made no request that the State be forced to elect which alternative manner and means would be relied on for conviction. The State may use as many paragraphs as are necessary to set out the various ways it alleges that a defendant has committed one offense. Callins v. State, 726 S.W.2d 555 (Tex. Crim. App. 1986), on reh'g, 780 S.W.2d 176 (Tex. Crim. App. 1989). When a defendant fails to ask the court to make the State elect the particular conduct on which it relies for conviction, the defendant has waived any claim of error. See TEX. R. APP. P. 33.1; Hendrix v. State, 150 S.W.3d 839, 852 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd); Gallegos v. State, 756 S.W.2d 45, 47 (Tex. App.—San Antonio 1988, pet. ref'd). Thus, the State had the burden to provide legally sufficient evidence only that any one of the alleged acts was done and was clearly dangerous to human life.
The indictment alleged that Melton pushed Younger out of the vehicle, struck him with the vehicle, drug him with the vehicle, or ran over him with the vehicle.
Melton admitted being in Younger's Santa Fe SUV the night of his death. In a video-recorded interview, Melton told officers at least two stories about how she came to be in possession of Younger's vehicle. First, she said she got the SUV from another "tweaker" or methamphetamine user. Melton said this tweaker gave her the SUV at a local gas station. Later, she said a fellow methamphetamine user she called Thomas supposedly picked Melton up and told her to drive the SUV. When officers asked her about Younger, the "old man" who owned the vehicle, Melton repeatedly denied knowing about an old man.
It would be impossible to assert otherwise. A strand of Melton's hair and samples of her DNA were found throughout the vehicle. Several of her belongings, including a Bible inscribed with her name, were in the back seat. The SUV was found in the parking lot of a motel in which Melton had been staying the days immediately before and after Younger's body was found.
In the interview, about fifty-four minutes long, Melton's explanations and descriptions of events are wandering and difficult to follow. One law enforcement witness and the prosecutor, in cross-examining Melton, described her as having given three or four explanations of acquiring the SUV.
In the interview, Melton said she drove the SUV to Royse City to pick up her friend Godwin. Godwin testified at trial, but he claimed not to remember statements he had made a year earlier when he pled guilty to possessing a controlled substance. In the plea agreement for that charge, he agreed to testify against Melton, and at the plea hearing he described what Melton had told him about how she came to possess Younger's white SUV. When Godwin claimed not to remember what he had said at the plea hearing or what Melton had told him, the State read excerpts for the jury. In the prior statement, Godwin had recounted Melton's narrative to him that an old man gave her a ride in the white SUV, that he made unwanted sexual overtures to her, that he apparently thought she was a prostitute, that he somehow exited the vehicle when it was stopped in a cemetery, that Melton got in the driver's seat and drove away, and that the old man held on to the vehicle for awhile, but then let go.
Frankie Stankiewicz testified that he was an acquaintance of Melton and Godwin. On one occasion, he visited the pair in their motel room where they told him they "had a vehicle that they ran around town in[,] . . . a little SUV or something." Stankiewicz saw the SUV and noticed it was white. Shortly after that occasion, Stankiewicz said Melton called him for a ride to Sanger, a community near Denton. On the ride, Melton told Stankiewicz that she got the white SUV from an old man who had given her a ride, that the old man "scared her or freaked her out . . . [, that] she pushed him out of the vehicle[,] . . . and [that] she took it."
On July 22, Stankiewicz and Melton had been reported as suspicious persons with a suspicious vehicle and were found in another vehicle in north Denton County. Law enforcement made contact with them, but Melton gave them a false name. Her true identity was ultimately discovered, and she was arrested for the failure to identify herself.
See TEX. PENAL CODE ANN. § 38.02(b) (West 2016).
Dr. William McClain, the medical examiner who autopsied Younger's body, concluded that his death was a homicide caused by blunt force injuries. McClain observed multiple fractures in Younger's eye sockets and skull, bleeding in the brain, a broken clavicle, a fractured rib, bruising and lacerations in the left lung, as well as multiple lacerations of varying sizes on the victim's left knee, left thigh, arms, hands, and face. The clavicle and rib fractures and damaged lung were all on the left side, "[m]ore or less in a line." McClain testified that Younger's injuries were not caused by a simple fall. He reached that conclusion based on the nature, extent, and distribution of injuries:
These were several different blows which struck the head from different angles on different surfaces in addition to the one on the nose and then the several different ones on the left side of the body. . . . [T]he degree of that laceration on his elbow isn't really in fitting with someone who falls onto the elbow.McClain further explained that different areas of Younger's head were struck at different angles, together with the two areas of multiple fractured ribs, injuries that are difficult to explain with a single fall.
McClain testified that the number and location of Younger's injuries suggested to him "a blow to the left side, a broad blow that struck many different parts of his body, more or less, at one time . . . indicat[ing] a large object." McClain said he had seen or reviewed multiple vehicular contact injuries, and it was not uncommon for significant physical injuries to be suffered without noticeable damage to the vehicle. In his opinion, Younger's injuries were more consistent with a glancing blow to his left side than a direct hit.
Younger's daughter, Carol Clayton, testified that Younger was not in the habit of letting people borrow or drive his SUV. Clayton identified a seat cushion found in the cemetery as one used by Younger to sit on when he drove his SUV. When asked whether Younger allowed strangers to borrow his vehicle, Clayton stated, "Absolutely not." Melton admitted throwing the seat cushion out when she took Younger's SUV. That was partially confirmed by testimony, from a woman who frequently walked with her husband through the cemetery for exercise, that the cushion had not been present the evening of July 19, but was there the morning of July 20 as the couple was walking through the grounds again.
There was evidence that Melton was in possession of Younger's vehicle and that Younger's injuries were consistent with being hit by the vehicle. Melton admitted being in the vehicle with him, in some way forcing him out of the truck, and leaving with it. Stankiewicz and Godwin recounted her telling them that she forced Younger out of the vehicle and took it. Godwin's statement, taken a year before trial, alleged Younger had held onto the vehicle as Melton drove away. The medical examiner stated firmly that the extent of Younger's injuries was not indicative of one simply falling from or being pushed out of a moving vehicle.
A few days after Younger's death, Melton was arrested in Denton County for giving a false name, suggesting that she was fleeing the location of the crime. Finally, despite her trial testimony and having told two friends that an old man had given her a ride then made sexual advances or requests, when interviewed by law enforcement just days after the crime, she repeatedly professed knowing nothing about an old man. She claimed she came into possession of the SUV through another methamphetamine-using friend.
"Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt." Guevera v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
A rational jury could have construed the evidence to establish that Melton engaged in an act clearly dangerous to human life while in the course of felony theft, causing Younger's death. The evidence was legally sufficient to support the jury's verdict.
Melton also claims that the evidence was factually insufficient to support the jury's verdict. Factual sufficiency review by the Courts of Appeals in criminal cases was ended years ago. See Howard v. State, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011); see also Brooks, 323 S.W.3d at 894-95. We are without power to address this argument.
(2) Admitting Godwin's Prior Testimony Was within the Trial Court's Discretion
Melton also complains that the trial court erred in allowing the State to read into the record statements previously made by Godwin. The Saturday night she came into possession of Younger's SUV, Melton drove to Royse City, picked up Godwin, and travelled to Garland with him to get drugs. About a year before Melton's trial, Godwin pled guilty to an unrelated controlled substance charge. As part of the plea negotiation for that case, Godwin agreed to testify against Melton. At his plea hearing, he testified about what Melton told him about how she came into possession of the vehicle they took to Garland the night of Younger's death. At Melton's trial, Godwin claimed not to remember what Melton had told him or what he said at his plea hearing. It was a portion of this plea-hearing testimony that the State read to the jury at Melton's trial.
We review a trial court's admission of evidence for an abuse of discretion. Marsh v. State, 343 S.W.3d 158, 161 (Tex. App.—Texarkana 2011, pet. ref'd). However, if the equivalent of the challenged evidence is admitted elsewhere without objection, the initial objections are waived. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999).
The State proffered Godwin's earlier statements, from his plea hearing, as a recorded recollection. See TEX. R. EVID. 803(5). To be admissible under this exception to the rule against admission of hearsay, four elements must be satisfied:
I.e., "A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;TEX. R. EVID. 803.
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge, unless the circumstances of the record's preparation cast doubt on its trustworthiness.
(1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998). However, the essence of Godwin's statements inculpating Melton were repeated by other witnesses, without objection.
Godwin claimed that his regular methamphetamine use had impaired his memory and that he could not recall statements he gave investigators after Younger's death. Even after reviewing the statement he gave at his plea hearing, he claimed not to recall the subject of that statement. Over Melton's objection, the State read Godwin's prior statement to the jury. In that statement, Godwin had testified that Melton recounted to him the following narrative: she was given a ride by an old man who made inappropriate sexual advances, she became frightened and ordered or in some other way got the man out of his SUV, she hit the old man with the vehicle as she drove off, and the man held on to the vehicle briefly but then let go.
Detective Jamie Fuller testified that she interviewed Godwin during the investigation of Younger's death. According to Fuller, Godwin said Melton told him an old man had given her a ride, then "tried to feel her up and molest her and that's why she pushed him out of the car." Melton did not object to Fuller's recitation of Godwin's statement to her.
Similarly, Stankiewicz testified that he was in a motel room with Melton and Godwin in the days following Younger's death. Melton and Godwin told Stankiewicz they had a white SUV "that they ran around town in." A few days later, Melton called Stankiewicz for a ride. As they drove towards Denton County, Melton told Stankiewicz she got the white SUV from "an old man" who "scared her or freaked her out or something like that and she pushed him out of the vehicle and . . . she took it."
The only significant information from Godwin's plea statement not provided by other testimony was Godwin's statement recounting that, as Melton drove off, the old man held on to the vehicle and then let go. Because the rest of what was read to the jury in the Godwin statement given at his plea hearing was produced, unchallenged, by other witnesses, this is the only recorded recollection evidence with which we are concerned.
We do not find an abuse of discretion in the admission of this statement. Godwin made it clear he did not recall, well enough to testify fully and accurately, the statements made by Melton to him regarding her theft of Younger's vehicle. He acknowledged having testified, at his plea hearing a year before trial, in which he related those statements. He agreed that he made his statements under oath and that he agreed at the time to relate only what Melton, no one else, had told him. Regarding the state of his memory at the plea hearing, a year prior, he agreed that his testimony "was the truth . . . because [he] wouldn't have said it unless it was the truth." Melton countered by pointing to Godwin's many years of methamphetamine use and his own opinion that he had significantly damaged his physical and mental health and "ability to process or retain information and anything along those lines."
One may question whether Godwin actually vouched for the accuracy of his prior statement. But Godwin had first-hand knowledge of the statement made to him by Melton. He made the statement in August 2015, thirteen months after Younger's death and fourteen months before Melton's trial. While it was not clear when Melton made the statements to Godwin, the trial court could have found that Godwin's testimony from the plea hearing was made when Godwin had a clear and accurate memory of the conversation. Godwin said he had read the transcript of the prior testimony, but "it wasn't what [he] recalled exactly." When reading it, he did not "even recall most of that testimony." Godwin recalled giving the testimony under oath, but he did not recall the conversation with Melton about how she came into possession of Younger's SUV. He agreed with the State's voir dire questioning that he "intended on telling the truth" at that hearing, and that his memory, more than a year before his appearance at Melton's trial, "was the truth when [he] said it because [he] wouldn't have said it unless it was the truth."
A witness may "vouch for the accuracy" of a previous statement by testifying (A) to a present memory of the facts, (B) to a former recognition that the facts as so stated were accurate, (C) if the witness's "present memory is less effective," to his or her belief that the statement "is correct because of a habit or practice to record matters accurately or to check them for accuracy," or (D) "to recognizing [his or] her signature on the statement and believ[ing that] the statement is correct because she would not have signed it if she had not believed it true at the time." Johnson, 967 S.W.2d at 416.
Here, while Godwin said he did not remember his prior testimony, he did say that he recalled making those statements under oath. He also agreed he had agreed to only relate the truth about what Melton told him and that he would not have made those statements were they not true. This is analogous to Johnson's approved methods of vouching for a prior statement.
The trial court did not abuse its discretion in allowing the State to present the prior, plea-hearing testimony.
(3) Admitting Evidence of Melton's Earlier Attempted Theft Was within the Trial Court's Discretion
Melton also asserts that the trial court erred when it allowed the State to admit evidence that Melton tried to steal another vehicle the night before Younger's death. The State proffered that evidence to show Melton's motive for the theft of Younger's SUV. The State's theory was that Melton tried to steal another vehicle the night before she took Younger's vehicle, because she needed a vehicle to travel to Garland to buy drugs. Thus, argued the State, evidence she tried to take a vehicle the night before, and was unsuccessful, showed Melton's motive to steal Younger's vehicle.
That vehicle was found abandoned a few hours after having been stolen. Before the trial at issue here, Melton and a co-defendant had pled guilty to three counts of robbery involving the previous vehicle's three occupants. Melton was serving a seven-year sentence for those robberies when she was tried for Younger's murder.
When the State explained its theory of admissibility, Melton's trial attorney argued that the evidence would be substantially more prejudicial than probative and that such evidence would require Melton to present evidence about the circumstances of the extraneous offense and of the co-defendant.
Despite the trial court's admission of the State's extraneous offense, Melton never presented evidence about the circumstances of that crime.
Relevant evidence is presumed admissible. See McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992); Barron v. State, 864 S.W.2d 189, 193 (Tex. App.—Texarkana 1993, no pet.). In other words, it is presumed that relevant evidence will be more probative than prejudicial. Barron, 864 S.W.2d at 193 (citing Green v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992), abrogated on other grounds, Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999)). Melton does not challenge the relevance of the evidence. Her argument to the trial court and on appeal is limited to asserting that the probative value of the evidence was outweighed by the danger of unfair prejudice.
The relevant criteria in determining whether the prejudice of an extraneous offense substantially outweighs its probative value include:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery, 810 S.W.2d at 389-90) (footnote omitted)).
(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; [and]
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
The State offered the evidence of the prior night's attempted theft to show Melton was motivated to steal Younger's vehicle. As the State pointed out in its argument to the trial court, Melton had asserted her defensive theory that she was frightened of Younger because of improper sexual propositions he made to her. Thus, the State had a need to counter with its theory of Melton's motive in taking Younger's vehicle, that is, to get drugs.
This evidence did not likely impress the jury in an irrational yet indelible way. The State took little time in presenting the evidence. The State's case involved presenting testimony from twenty-one witnesses over the course of four days. Direct examination testimony from the last witness, Detective Mike Johnston, took up about twenty-nine pages of the reporter's record. Only three pages of this was spent discussing the extraneous theft and concomitant robberies. The State specifically asked about these in the context of Johnston's opinion about Melton's asserted motive of taking the SUV to escape from unwanted sexual overtures. Johnston explained his belief that her theory was untenable based on the botched vehicle theft just a day before the Younger crime.
This fact also addresses the third Santellan factor, how much time was used to introduce the challenged evidence.
The jury had already seen Melton's interview in which she admitted being a methamphetamine addict, had seen photographs of Younger's body with substantial wounds at the scene of the crime, and had heard testimony from two of Melton's friends, who were also drug addicts, giving insight to the kind of life lived by them. In light of all the evidence presented at the time, it is unlikely that evidence of the prior night's theft had an improper or inappropriate effect on the jury.
There was no abuse of discretion in the trial court's admission of the extraneous-offense evidence. The court could well have found the danger of unfair prejudice did not substantially outweigh the evidence's probative value.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: October 12, 2017
Date Decided: November 29, 2017 Do Not Publish