Court of Appeals of Texas, First District, Houston
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[Copyrighted Material Omitted]
On Appeal from the 179th District Court, Harris County, Texas. Trial Court Case No. 1316670.
For Appellant: Alexander Bunin, Chief Public Defender, Sarah V. Wood, Assistant Public Defender-Harris County, Houston, TX.
For State: Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Spence Graham, Lewis Thomas, Assistant District Attorney-Harris County, Houston, TX.
Terry Jennings, Justice.
A jury found appellant, Cornell Smith, Jr., guilty of the offense of murder, and the trial court assessed his punishment at confinement for forty years. In his first of six issues, appellant contends that trial court erred in allowing the State to seek an illegal sentence and mislead the jury panel during voir dire. In his remaining issues, he contends that the trial court erred in admitting evidence of a previously-recorded interview of a witness, irrelevant and prejudicial evidence, evidence of an extraneous offence, and hearsay evidence.
We affirm appellant's conviction, but reverse and remand for a new punishment hearing.
Ned White, a maintenance man at the Apache Springs apartment complex, testified that on May 30, 2009, while walking through the complex, he saw two men, later identified as Daniel Sepeda, the complainant, and his younger brother, Gregory Ramos, washing a car. After White spoke to them for a few minutes, he returned to an area outside of a friend's apartment, where he watched television. White then saw two young black men pass by the apartment; one wore a bandana around his head and the other a bandana around his neck. White later heard two gunshots, ran inside his friend's apartment, and locked the door. He then looked out from a window and saw the two men, each holding a handgun, run toward and then past his friend's apartment. White exited the apartment to see that Sepeda had been shot.
Jessica DeLaRosa, a resident at the apartment complex, testified that on May 30, 2009, she, while standing on her balcony, saw the complainant and a young child washing a car in the apartment complex parking lot. Approximately one or two minutes after she went inside her apartment, she heard two gunshots. When she looked back to the parking lot, she saw two black men running away.
Harris County Sheriff's Office (" HCSO" ) Sergeant C. Clopton testified that at about 2:00 p.m. on March 30, 2009, he was dispatched to the apartment complex to investigate the shooting. Clopton identified three witnesses to the shooting: Laura
Vincent, the complainant's fiancé, Ramos, and White. Ramos, who was eleven years old at the time, appeared " very scared or traumatized" but " could describe what had occurred." Clopton interviewed Ramos and recorded the interview.
Ramos testified that on May 30, 2009, he was helping the complainant wash his car. The complainant told Ramos to find Vincent, who lived at the apartment complex, and ask her to bring him his gun because he had seen someone watching him. Later, the complainant and Ramos were approached by two young black men who said something to the complainant. Ramos could not remember what was said, but when the complainant stood up to face the men, he told Ramos to " get back." Ramos climbed into the back seat of the car, and, approximately five seconds later, heard two gunshots. When he looked out of the car, he saw the complainant bleeding from his neck and the two men running away. Later, Ramos gave a recorded statement to a police officer.
Ramos further testified that, at the time of trial, he remembered the " important" events of the shooting, but could not remember " every single detail." On cross-examination, Ramos noted that he remembered telling a police officer that he had seen the complainant pull a gun from his waist. And, over appellant's objection, the State then offered, and the trial court admitted into evidence, a redacted audio recording of Ramos's statement to Sergeant Clopton.
Bobby Williams, Jr., appellant's cousin, testified that on May 30, 2009, Roderick Brooks, another cousin, picked him up in a white Buick to run errands. At some point, Brooks received a cellular telephone call, and the two drove to pick up appellant and Marquieth Jackson. Appellant then asked Brooks to drop him off at an apartment complex to meet some friends at around 12:30 or 1:00 p.m. After Brooks parked the car at the apartment complex, appellant and Jackson exited the car.
Approximately five minutes later, Williams heard a gunshot, and appellant ran back into the car, saying that someone " tried to rob him," " the guy shot him," and " he shot the guy." Although Williams wanted to take appellant to the closest hospital, Houston Northwest Memorial Hospital, appellant insisted on going to Doctors Hospital, which was further away. Brooks told Williams to lie to law enforcement officers and state that they had picked up appellant and Jackson from a nearby convenience store. Williams later told officers that he did not know that appellant had a gun with him until he got back into the car after the shooting.
Houston Police Department (" HPD" ) Officer T. Winn testified that on May 30, 2009, he was dispatched to check on appellant at Doctors Hospital because he was a shooting victim. Appellant told Winn that he was shot and robbed while walking to a store in the 6800 block of West Montgomery. Winn investigated the parking lot of the store, but he did not see any evidence that a shooting had occurred or find any witnesses.
Glenn Bowie testified that on May 13, 2009, he walked to a gas station near his apartment to buy food. On his way to the gas station, two black men punched him in the ribs and mouth, stole his wallet, and drove away in a blue Cadillac. Law enforcement officers later asked Bowie to identify two potential suspects, and Bowie identified appellant and Jackson as the men who had robbed him.
HPD Officer J. Salazar testified that on May 14, 2009, he received a call from Bowie claiming that he had seen the two men who had robbed him the previous day. Bowie told him that the men left in an
" aqua blue" Cadillac with " front end damage." Salazar later pulled over a car matching Bowie's description. Appellant was driving the car, Jackson was in the passenger seat, and Chris Hines sat in the back seat. Bowie specifically identified appellant and Jackson as his assailants, and he later identified appellant from a photograph lineup.
Appellant testified that he had previously gotten into a fight with the complainant when he was in high school. On May 30, 2009, appellant and Jackson were walking back from a store when Brooks offered to give them a ride to the Apache Springs apartment complex to sell marijuana. When they arrived, Brooks handed a gun to appellant. After appellant and Jackson sold marijuana in one of the apartments, appellant " locked eyes" with the complainant. Appellant kept walking, but the complainant and Jackson soon began fighting each other. The complainant pulled a gun and fired it at Jackson, but he missed and struck appellant instead. Appellant then fired his gun at the complainant, turned around, and ran away.
In his first issue, appellant argues that, during voir dire, the trial court erred in allowing the State to seek an " illegal sentence" and " misled the jury panel on the grave consequences of their potential verdict" because the State " erroneously informed potential jurors that [appellant] would be eligible for parole if he were convicted of capital murder, when in fact he was facing a sentence of life without the possibility of parole."
A Harris County grand jury issued a true bill of indictment, accusing appellant of committing the offense of capital murder. See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2013). Prior to September 1, 2009, the Texas Penal Code provided that,
In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.
Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2705, 2705 (amended 2009) (emphasis added) (current version at Tex. Penal Code Ann. § 12.31(b)(2) (Vernon Supp. 2013)). The Texas Legislature later amended the provision to provide that if a case is transferred from a juvenile court to a criminal district court, prospective jurors shall be informed that a sentence of life imprisonment with parole is mandatory on conviction of the capital felony. Act of May 29, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930, 1930. The amendment states that the change only applies to offenses committed on or after September 1, 2009, the effective date of the amendment. Id. § 3.
Here, the indictment alleged that appellant committed the offense of capital murder on or about May 30, 2009. Because he was sixteen years old at the time that he shot the complainant, appellant's case was initially brought in a juvenile court and then transferred to the criminal district court. The trial court did not instruct the venire panel pursuant to section 12.31(b). And appellant complains of the following statements made by the State during voir dire, discussing the applicable punishment in the case:
[STATE]: Well, the way it works with capital murder, you hear the case and decide whether or not the defendant committed the crime or not and it's just by statute that the punishment is automatically life. For a certified juvenile,
it's not possible to seek the death penalty on them; but if they are convicted of capital murder, they get life in prison.
Now, an adult that gets convicted of capital murder gets life without the possibility of parole, but there is a distinction made for juveniles that are certified as adults. It's a life sentence, but there's a possibility of parole.
[VENIRE PERSON]: So, in this case, there is a possibility of parole?
[STATE]: I can't go into the facts of this case; but if one is certified as a juvenile and they are charged with capital murder, convicted of capital murder, the sentence is automatic life. It can't be death, life with the possibility of parole.
Appellant further complains of the following exchange between the State and another venire person:
[VENIRE PERSON]: I have a question. On the part about if they are certified as an adult and they are convicted, what is the longest sentence -- I mean, you said that he could be paroled, but how long would they have to serve before they would be eligible for parole?
[STATE]: For a certified juvenile, they're not eligible for parole until they have served 40 years.
[VENIRE PERSON]: Forty years? Four or forty?
To the extent that appellant complains that the State engaged in improper jury argument during voir dire, we note that a party must both object and pursue the objection to an adverse ruling to preserve error regarding allegedly improper jury argument. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Likewise, a defendant must timely object to remarks by the State and the trial court during voir dire. See Marshall v. State, 312 S.W.3d 743, 745 (Tex. App.--Houston [1st Dist.] 2009, pet. ref'd); Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (holding defendant failed to preserve for review issue of improper argument by State because he did not object when argument first made during voir dire).
Here, appellant did not object to the State's comments or request that the trial court instruct the venire panel pursuant to section 12.31(b). Without an objection, a defendant waives the complaint on appeal unless the alleged error was fundamental and affected substantial rights. See Tex. R. App. P. 33.1(a)(1); see also Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978). A substantial right is affected when an error has a substantial and injurious effect or influence in determining a jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no effect or only a slight influence on the verdict, it is considered harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Appellant argues that the complained-of comments constituted " drastic misinformation" and " fundamental error." We note that the harm resulting from errors occurring in the context of jury formation can be difficult to discern from an analysis focusing on the ultimate outcome of a trial. See Ford v. State, 73 S.W.3d 923, 925-26 (Tex. Crim. App. 2002). If a defendant does not present record evidence that demonstrates that the error deprived him of a jury comprised of legally-qualified jurors, we cannot say that he
suffered harm. Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007). Appellant points to nothing in the record indicating that the State's comments or the trial court's error in not instructing the venire panel pursuant to section 12.31(b) resulted in the empaneling of unqualified jurors.
More importantly, the jury ultimately did not convict appellant of the offense of capital murder, but of the lesser-included offense of murder, and the trial court determined his punishment. We cannot conclude that the State's comments had a " substantial and injurious effect or influence in determining a jury's verdict." See King, 953 S.W.2d at 271. ...