Opinion
NO. 01-11-00407-CR
05-10-2012
JARED LEVI WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Waller County, Texas
Trial Court Case No. 09-03-13182
MEMORANDUM OPINION
Jared Levi Williams pleaded guilty to the offense of murder, and a jury assessed punishment at ninety-nine years' confinement and a $10,000 fine. Williams raises three issues on appeal, contending that the trial court erred by admitting unfairly prejudicial evidence—specifically, two autopsy photographs and a black ski mask—and by denying his request for a new trial on the ground of jury-charge error. We affirm.
See TEX. PENAL CODE ANN. § 19.02 (West 2011).
Background
One Sunday afternoon, Williams, seventeen-years old at the time, armed himself with a sawed off shotgun, borrowed his mother's car, drove to a nearby video store, and shot and killed the store owner. Looking to rent videos, Yusell Figueroa and her father pulled into the store's parking lot a short time later and observed a young man speed off in a silver or light blue car. Not thinking much about the young man's erratic driving, Figueroa and her father entered the video store and shopped for a few minutes before noticing the complainant's body lying behind the store counter. Figueroa called 911. Police officers responding to Figueroa's call discovered that the store's money drawer was open and empty of cash. But not all items of value had been removed from the crime scene; on the complainant's body, investigators found more than $500 in cash, several credit cards, and a gold chain.
Williams returned home and confessed to his mother that he shot someone. At his mother's urging, Williams turned himself in to police not more than one hour later. Sergeant Diaz, a Texas Ranger assisting local police with the investigation of the complainant's death, noticed that Williams had been crying when he arrived at the police station. Williams consented to the collection of forensic evidence from his person and clothing, including gun-shot residue and blood samples. Police noted an injury to Williams's right hand and recovered a small amount of cash from his pocket that included twenty-eight one-dollar bills, two five-dollar bills, and one ten dollar bill stained with his blood. Williams's mother also cooperated with the investigation, informing police that they could recover the shotgun used to shoot the complainant from a neighbor whom she asked to hold the gun out of fear Williams would take his own life. She gave the police permission to search her car and Williams's bedroom.
Sergeant Diaz conducted the search of Williams's bedroom. There, he recovered the barrel and stock of the shotgun from Williams's closet and a black ski mask from near Williams's bed. Sergeant Diaz testified that the crude manner in which the shotgun was sawed off would cause injury to the person firing the gun. This, he opined, might be the reason the police found Williams's blood—and not the complainant's blood—on Williams's clothing, on the money in his pocket, and in his mother's car. Sergeant Diaz further explained that the ski mask was handmade by cutting holes for the eyes and mouth from a ski hat. He thought the mask might be "a piece of evidence consistent with a robbery[.]" Unlike other items Williams had touched, however, the mask did not contain traces of blood, hair, or other DNA. And no witness testified that Williams wore the ski mask.
Following the police investigation, Williams was indicted for capital murder. The indictment alleged that Williams "intentionally or knowingly cause[d] the death of [the complainant] by shooting [the complainant] with a firearm . . . in the course of committing or attempting to commit the offense of robbery of [the complainant]." Williams pleaded guilty to the lesser-included offense of murder, and the indictment was amended to omit the capital murder charge. Williams elected to have a jury assess his punishment.
Using a projection screen, the State presented the jury with a video and numerous color photographs of the complainant's body and the crime scene. Dr. D. Phatak, an assistant medical examiner, testified as to the cause of the complainant's death: a fatal gun-shot wound to the head. To support his testimony, Dr. Phatak relied on numerous color photographs taken during the various stages of the autopsy, including two photographs depicting the inside of the complainant's skull and brain. Williams objected to these two autopsy photographs and some of the crime scene photographs in oral motions in limine, which the trial court denied.
The jury also heard testimony about the complainant's and Williams's backgrounds. While members of the complainant's family testified that the complainant was beloved and a hard working small business owner, members of Williams's family testified that Williams had suffered mental health and social issues. Williams's cousin explained that Williams had taken to "huffing" cans of compressed air. And, in the months preceding the complainant's death, Williams's mother discovered a suicide note in his bedroom. A court-appointed psychiatrist diagnosed Williams as having a severe "depressive order," which was aggravated by his use of inhalants and might impair his thought process or ability to control impulses.
After two full days of testimony, the trial court submitted the case to the jury for its consideration. The court's charge, however, omitted statutorily-mandated instructions regarding the jury's consideration of a defendant's parole-eligibility in non-capital murder cases. The error was discovered when the jury asked a question about Williams's eligibility for parole during its deliberations. The trial court then submitted an amended charge containing all of the statutorily-mandated instructions regarding parole, including the instruction that the jury not consider Williams's eligibility in assessing punishment. The jury returned a verdict assessing the maximum punishment available under the Penal Code: ninety-nine years' confinement and a $10,000 fine. Williams appealed.
Admission of Evidence
William's first two issues concern the admission of evidence. In his first issue, Williams argues that the trial court erred by admitting two autopsy photographs—specifically, the State's exhibits 60 and 61 depicting the inside of the complainant's skull and brain—the probative value of which were substantially outweighed by the danger of unfair prejudice. In his second issue, Williams makes a similar argument regarding the black ski mask, asserting that its admission was unfairly prejudicial because there was no evidence he used the ski mask during the commission of the offense.
We review the trial court's evidentiary rulings for an abuse of discretion. See Schultze v. State, 177 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (op. on reh'g) (noting trial court's broad discretion in determining admissibility of evidence at punishment). A trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). There is no abuse of discretion if the trial court's decision is within the "zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
I. Two autopsy photographs
To preserve the error alleged in his first issue regarding the admission of the autopsy photographs, Williams was required to object in a timely fashion, state the specific ground for his objection, and obtain an adverse ruling by the trial court. See TEX. R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Before opening statements, Williams presented oral motions in limine to the trial court, objecting to the two autopsy photographs at issue on the ground that the prejudicial effect of showing the jury pictures of the complainant's skull and brain, mutilated by autopsy procedures, outweighed the photographs' probative value. The trial court determined that it would allow the autopsy photographs, and, when the State published the photographs to the jury during direct examination of the medical examiner, Williams did not renew his objection. Therefore, the ruling on the admissibility of the autopsy photographs was the trial court's denial of Williams's oral motion in limine. A motion in limine, however, preserves nothing for our review. See Fuller, 253 S.W.3d at 232. "For error to be preserved with regard to the subject of a motion in limine, an objection must be made at the time the subject is raised during trial." Id. By failing to make objections to the autopsy photographs at the time they were published to the jury and testified to by the medical examiner, Williams forfeited his right to complain on appeal. We overrule his first issue.
We note that, although the autopsy photographs were published to the jury during the medical examiner's testimony, we cannot find any place in the record where the trial court actually admitted the exhibits. This is of no consequence to our determination that Williams's waived his right to complain about the prejudicial effect of the photographs by failing to object at the time they were published to the jury.
II. The black ski mask
Unlike his first issue, Williams's second issue complaining about the admission of the black ski mask is preserved for our review. Williams argues that "[t]he trial court erred in admitting [the ski mask] when there was no evidence [he] had used the mask during the offense," meaning the ski mask "had no probative value apart from suggesting extraneous offenses." Even assuming Williams is correct, we will not reverse the trial court's judgment if the alleged error was harmless. Rule of Appellate procedure 44.2(b) provides that any error, other than constitutional error, not affecting a defendant's substantial rights must be disregarded. See TEX. R. APP. P. 44.2(b); Sells v. State, 121 S.W.3d 748, 764 n. 69 (Tex. Crim. App. 2003). Error, if any, in the admission of the ski mask is non-constitutional error. See Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (applying standard of review under rule 44.2(b) to erroneous admission of evidence); see also Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (stating erroneous evidentiary ruling generally constitutes non-constitutional error and is reviewed under rule 44.2(b)).
Although he made his objection to the admissibility of the ski mask during the presentation of his motions in limine, Williams renewed his objection when the State offered the ski mask at trial.
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Williams's substantial rights were affected if, after reviewing the record as a whole, we conclude the error had a substantial and injurious effect or influence on the outcome of the proceeding. Burnett v. State, 88 S.W.3d 633, 637 & n.8 (Tex. Crim. App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Stated conversely, Williams's substantial rights were not affected by the erroneous admission of the ski mask if we, after examining the record as a whole, have fair assurance that the error did not influence the jury, or had but a slight effect. McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
In assessing harm, we examine the entire record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). We consider, among other relevant factors, the testimony or physical evidence admitted for the fact finder's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla, 78 S.W.3d at 355-56.
After two days of testimony from eighteen witnesses, the jury here assessed the maximum sentence permitted under the Penal Code: 99 years' confinement and a $10,000 fine. See TEX. PENAL CODE ANN. § 12.32 (West 2011). Before reaching that verdict, however, the jury heard testimony that the complainant was shot in the head with an illegal firearm, a sawed off shotgun. The jury was also presented with a crime-scene video and more than twenty properly admitted or unobjected-to photographs depicting the gruesome circumstances of the complainant's death. Members of the complainant's family testified about the impact of his death on their lives. The ski mask was but a single piece of evidence in the State's case for sentencing, and Williams's trial counsel took steps to minimize its evidentiary weight. During cross-examination, trial counsel elicited testimony from the investigating officers that the ski mask was not found alongside the discarded shotgun parts in Williams's closet, that the ski mask was not tested for DNA, that, unlike many of the other items William's touched on the day of the complainant's death, the ski mask was not soiled with blood, and that no one had seen Williams wearing the mask. Trial counsel also asked Figueroa whether the young man she saw speed away from the video store parking lot was wearing a mask; she answered in the negative. In closing arguments, trial counsel again addressed the ski mask, pointing out the lack of evidence of its use during the commission of the offense and urging the jury not to consider the ski mask in assessing punishment. At no point during the trial did the State dwell upon or emphasize the ski mask; in fact, the State did not mention the ski mask once during its closing argument. After examining the record as a whole, we have a fair assurance that the alleged error did not influence the jury, or had but a slight effect. See Motilla, 78 S.W.3d at 355. We therefore hold that any error in admitting the ski mask was harmless, and we overrule Williams's second issue. See TEX. R. APP. P. 44.2(b).
Charge Error
It is undisputed that the charge initially given to the jury in this case was inaccurate. Section 4(a) of article 37.07 of the Code of Criminal Procedure required the trial court to instruct the jury on parole eligibility as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (West 2011). The charge, however, omitted the last two paragraphs of section 4(a). Neither party noticed or objected to the omission of the statutorily-mandated language prior to the jury's deliberations—the error was discovered only when the jury asked a question about Williams's eligibility for parole. Before the jury reached a verdict, the trial court interrupted deliberations, retrieved the original charge from the jury, submitted an amended charge containing all of the section 4(a) language, and instructed the jury to continue deliberating. Neither party objected to the amended charge. In his third issue, Williams argues the omission of the statutorily-mandated language was egregiously-harmful error because it caused the jury to consider the effect of parole in its assessment of punishment. We disagree.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
"Article 36.16 of the Texas Code of Criminal Procedure has been interpreted to permit a trial court to withdraw and correct its charge if convinced an erroneous charge has been given." Smith v. State, 898 S.W.2d 838, 854 (Tex. Crim. App. 1995); see also Bustillos v. State, 464 S.W.2d 118, 125-26 (Tex. Crim. App. 1964) ("In light of the purpose of [art. 36.16] the court may before verdict withdraw and correct its charge if convinced an erroneous charge has been given."). The trial court corrected the charge error in accordance with section 4(a)'s mandate. And the amended language was favorable to Williams in its instruction that the jury not "consider the manner in which the parole law may be applied to [Williams]"; the original charge did not include any prohibition against the jury's consideration of Williams's parole eligibility. We therefore perceive no error, and we overrule Williams's third issue.
Conclusion
Having overruled each of Williams's issues on appeal, we affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. TEX. R. APP. P. 47.2(b).