Court of Appeals of Texas, Fourteenth District, Houston
Melissa Martin, Houston, for appellant.
Melissa Hervey, Houston, for the State of Texas.
Panel consists of BOYCE, JAMISON, and BUSBY
J. BRETT BUSBY, Justice.
In a single issue, appellant Theadric Lee challenges his conviction of felony murder. He argues that the State violated his rights under the Confrontation Clauses of the United States and Texas Constitutions by, among other things, introducing an autopsy report without providing an opportunity to cross-examine the medical examiner who prepared it. See U.S. Const. amend. VI; Tex. Const. art. I § 10. We
conclude that the State did violate appellant's rights-it now concedes as much— but the violation was harmless beyond a reasonable doubt. We therefore affirm.
Complainant Juan Rodriguez died from gunshot wounds he received while confronting armed men who appeared to be robbing the home of his neighbor, Phillip Norwood. Appellant was tried for Rodriguez's death in 2012 with a jury charge that authorized conviction for either capital murder or felony murder, and that included instructions on finding appellant responsible for the criminal conduct of others. The jury ultimately convicted Lee of felony murder based on his role in the robbery of Norwood's home.
Appellant had participated in planning the robbery earlier that day. He and his friend, Willard Singleterry— whom appellant had invited along to " watch his back" — met Larry Wyatt and Jesse Butler at Butler's home. Appellant brought along a Bushmaster AR-15, which he had just bought, because " they didn't have enough guns with them already." The four men discussed their plan for the day. They expected to find twenty kilograms of cocaine, 250 pounds of marijuana, and $150,000 in cash that they would split among themselves. The men left Butler's home together in Wyatt's truck, picking up a fifth man on their way to Norwood's neighborhood.
Appellant armed himself with the AR-15, which he carried throughout the intrusion into Norwood's home, and kicked in Norwood's door according to plan. In total, the group— less Butler who waited in Wyatt's truck— carried the AR-15, two pistols, a shotgun, and a taser. They proceeded to search Norwood's home and question its occupants at gunpoint. Unable to find the quantities of drugs and cash they had expected, they contented themselves with taking television sets, a plastic tub full of electronics, and anything else of value they could find.
Some of the men were loading the items into the bed of Wyatt's truck when Rodriguez approached them from across the street. Rodriguez told the men to stop, or freeze, and informed them that he had a gun. Rodriguez and the robbers then exchanged a volley of bullets, at least some of which sounded like they were from a semiautomatic weapon or machine gun. Afterwards, appellant, Singleterry, and Wyatt jumped back in the truck and Butler drove them away from the scene. Rodriguez died en route to the hospital from gunshot wounds he received during the exchange.
At appellant's trial, even though appellant was not disputing the cause of Rodriguez's death, the State introduced the report from Rodriguez's autopsy and the accompanying autopsy photographs. Dr. Luisa Florez had prepared the report in the presence of an investigator from the Harris County Sheriff's office.
Since preparing the report, Dr. Florez had been indicted for allegedly making false statements under oath, a first-degree felony. The jury was not made aware of the indictment, however, because the State chose to have another medical examiner, Dr. Robert Milton, relay the findings of Dr. Florez's report.
Appellant objected to Dr. Milton's testimony, claiming that its admission would violate the Confrontation Clauses of the United States and Texas Constitutions because
Dr. Milton did not perform the autopsy. The trial court overruled the objection but granted appellant's request for a running objection on Confrontation Clause grounds " to all of [Dr. Milton's] testimony." Dr. Milton based his testimony " on [his] own individual personal review of all of the [autopsy] documents" — the autopsy report, x-rays, and photographs. During Dr. Milton's testimony, the state also offered the autopsy report itself, which was admitted over appellant's Confrontation Clause objection.
Appellant also objected to the admission of two of the autopsy photographs as prejudicial and cumulative under Texas Rule of Criminal Evidence 403. He then clarified " for the record" that he did not " have any objection to all the other ones that [the prosecution] offered." The trial court excluded one of the photographs and admitted the other.
Appellant contends that the autopsy report, the autopsy photographs, and Dr. Milton's testimony all violated the Confrontation Clause by introducing Dr. Florez's testimonial statements without giving appellant an opportunity to cross-examine her. We conclude that the report is testimonial and that its admission violated the Confrontation Clause, as the State now concedes. Appellant failed to preserve his Confrontation Clause objection to the photographs, however. As to Dr. Milton's testimony, it consisted primarily of permissible independent conclusions, and his minor repetition of statements from the report was cumulative of the report itself. Thus, his repetition does not alter our analysis of whether the error in admitting the report was harmful. Because ...