Clinton Dale Shelton v. State of Texas

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Clinton Dale Shelton

Appellant

Vs.                   Nos.  11-01-00056-CR & 11-01-00057-CR -- Appeals from Dallas County

State of Texas

Appellee

Michael Hierro and his wife, Marissa, were ambushed at their home on the evening of December 20, 1999.  Upon exiting their car, Michael was shot and killed.  Marissa ran; the assailant, a stocky white man wearing a dark mask, chased her.  A female voice called out, A[S]hoot her, shoot her.@  Marissa recognized the voice as that of Catherine Shelton, her former employer.  Marissa was shot and severely wounded.  Playing dead, Marissa heard the assailants arguing about shooting her again.  Marissa recognized the voice of the other assailant as that of Clinton Dale Shelton, appellant.

The jury found appellant guilty of the murder of Michael in Cause No. 11-01-00057-CR and sentenced him to life imprisonment plus a $10,000 fine.  The jury also found him guilty of the aggravated assault of Marissa in Cause No. 11-01-00056-CR and sentenced him to 20 years confinement and a $10,000.  Appellant appeals.  We affirm.

Appellant asserts six points of error.  Appellant contends that:  (1) the trial court=s admission of hearsay violated his rights to confrontation, cross-examination, and due process; (2) the trial court=s failure to order production of the relevant portions of the portable toilet violated his rights to cross-examination and due process; (3) the State=s failure to disclose the contradictory statements of the complaining witness violated his right to due process; (4) the trial court=s admission of a four-page document seized from his home denied him his right to be free from unreasonable searches and seizures; (5) the trial court=s refusal to provide a hearing on his motion for new trial violated his right to due process; and (6) the trial court=s denial of his motion for an instruction defining reasonable doubt violated his right to due process. 

Appellant does not challenge the sufficiency of the evidence.  We will summarize all the evidence in the light most favorable to the verdict.  Jackson v. Virginia, 443 U.S. 307 (1979).

J. B. Rutherford, a Rowlett police officer,  responded as a backup unit to 3000 Chaha Road on the night of December 20.  As he approached the Hierro=s Lexus which was still running with both doors open, Officer Rutherford found a sawed-off shotgun on the sidewalk.  After the crime scene was sealed off, Officer Rutherford entered a portable toilet near the driveway of the Hierro=s home.  The portable toilet had been placed there by a construction company.  Officer Rutherford found rubber gloves and pantyhose in the portable toilet that appeared to be designed as a mask.

            John Donahue, a deoxyribonucleic acid (DNA) serology analyst for the Texas Department of Public Safety, tested the pantyhose and found body fluids on the area where the mouth would have been if the material was used as a mask.  The DNA on the pantyhose matched appellant=s DNA.

Appellant testified in the guilt/innocence phase of the trial.  Appellant offered his version of the facts to explain why the mask contained his DNA.  Appellant stated that he was divorcing Catherine and that he wanted Marissa to testify on his behalf.  Appellant knew Marissa would not be a willing witness.  Appellant stated that he drove to the Hierro residence in Rowlett on several prior occasions.  Appellant explained that he was attempting to verify that Marissa lived at the address so that he could subpoena her in his divorce case.

Appellant stated that he wore the mask on December 19.  Appellant did this because he knew that he was going to approach the house and that, if Marissa saw him, she might hide and avoid service.  Appellant testified that he wore the gloves because he did not want to leave fingerprints.  Appellant explained that Marissa had access to fingerprinting equipment and that he did not want to be accused of window peeping or trespassing.  Appellant said that, when he could not see into the house, he retraced his steps, stepped into the portable toilet, relieved himself, and threw the mask and gloves into the receptacle. 

Charles Walter Lakes services portable toilets for Browning Ferris, Inc. (BFI).  Lakes testified that he cleaned the portable toilet the morning of the murder.  Lakes stated that, if the mask and gloves were in the portable toilet the morning of the murder, the vacuum pump would have disposed of these items.  The mask and gloves would not have been left behind for police to find the night of the murder.

Mark Hardman, a detective with the Rowlett police department, was called to conduct surveillance of appellant=s home in Copper Canyon on December 21, 1999.  Detective Hardman arrived at about 4:20 a.m. and took five trash bags from the home=s trash receptacle.  Detective Hardman found some men=s purple Hanes underwear in the trash.   James Adams, a trace evidence analyst, testified that two holes in the purple underwear were 6.3 centimeters apart, about the distance between normal human eyes.

On December 28, Detective Hardman was still conducting surveillance on the Shelton home.  David Nabors, a lieutenant with the Rowlett police department, assisted with another collection of trash from the home and examined the contents.  Lieutenant Nabors testified that the trash contained 31 pairs of pantyhose, some loose and some still in packages.  This was prior to any release to the press about the pantyhose mask found in the portable toilet.

Detective Hardman executed a search warrant on the Shelton home on December 29.  Copies of a letter were taken from the home.  The letter, written by appellant, detailed appellant=s activities on Monday, December 20, and Tuesday, December 21.  Detective Hardman conducted surveillance on appellant during much of the time described in the letter.  He said that appellant=s letter was not accurate about appellant=s activities.

Michael Smith, a forensic metallurgist, testified that he examined several saws seized from the Sheltons= home.  One saw had re-sulfurized steel fragments on the blade consistent with the barrel of the shotgun.

Marilyn Maria Craig Langston was Catherine=s accountant.  In September 1999, she went to the Shelton home to help Catherine set up her computer system.  During this visit, she had dinner with Catherine and appellant.  Langston testified that, during dinner, Catherine told appellant that she wished Marissa would just fall off the face of the earth or be dead.  As Langston was leaving the house, appellant told Langston that, if Marissa showed up on the property, Marissa would not leave.

In his first point of error, appellant asserts that the statement made by Catherine to Langston was inadmissable hearsay.  We disagree.  Catherine=s statement was admissible to show her then existing state of mind.  TEX.R.EVID. 803(3). The trial court did not abuse its discretion.  Coffin v. State, 885 S.W.2d 140, 149 (Tex.Cr.App.1994).  Appellant=s first point is overruled.

The State introduced photographs.  In his second point of error, appellant argues that the admission of the photograph of the service sticker located inside the door of the portable toilet, as opposed to the actual sticker, violated the best evidence rule.  The photographs revealed the cleaning dates for the portable toilet and indicated that it was serviced the morning of the murder.

TEX.R.EVID. 1002 provides that, to prove the content of a writing, the original writing is required.  However, a photograph is a duplicate.  TEX.R.EVID. 1001(d) & 1003;  Narvaiz v. State, 840 S.W.2d 415, 431 (Tex.Cr.App.1992).  Duplicates are admissible unless a question is raised as to the authenticity of the original.  Rule 1003.

The officers testified that the photographs were taken on the following February after the crime.  The testimony identified the photographs, described the circumstances under which they were taken, and reflected that the toilet and sticker appeared the same as they looked on the previous December.

The night of the murder, Lakes watched the news and recognized the portable toilet.  At trial, Lakes identified a photograph of the portable toilet.  The portable toilet was used for a nearby house construction.  Lakes said that he that had serviced this particular unit.  When he had finished with his cleaning, Lakes dated the sticker on the inside of the door to the portable toilet.  Lakes identified another picture as a photograph of the sticker that he had dated, December 20, 1999.  Admission of the photographs did not violate Rule 1002.  Narvaiz v.  State, supra at 431.  Appellant=s second point of error is overruled.

After Marissa had left Catherine=s employment, Marissa and Catherine had a meeting.  At this meeting, Marissa said that Catherine made threats, one of which was ALarry Robinson will kill you.@  Robinson was a former client of Catherine.

During her stay at the hospital, Marissa was interviewed three times by Officer Jimmy Patterson of the Rowlett police department.  Officer Patterson said that two of the three interviews had been terminated early because Marissa was in pain, on medication, and drowsy and fell asleep.  During the second interview, Marissa mentioned the conversation with Catherine about Robinson.  After the assault, the police investigated Robinson and eliminated him as a suspect.

Appellant had filed a pretrial motion to produce exculpatory and mitigating evidence.  The State responded that Marissa made no formal statements.  The State overlooked the interviews Marissa had with Officer Patterson.  Marissa testified that she did not remember two of the interviews or making the ARobinson@ statements to the officer.

After the direct examination of Marissa in the guilt/innocence phase, the state revealed the statement about Robinson.  Appellant=s trial counsel sought a delay to fully investigate Robinson and his possible involvement.  The trial court allowed counsel a few minutes to inspect the officer=s notes.  The cross-examination of Marissa continued.  This was on a Thursday, and the trial was continued until the following Monday.

On Monday, appellant filed a motion for disclosure of identity and investigative information of named assailant and for additional time to investigate.  Appellant=s motion was denied.  The State offered to locate Robinson and bring him to court for appellant=s examination.  Appellant=s trial counsel had an opportunity to examine and use Officer Patterson=s notes in his cross-examination.  There was no indication that Robinson was ever located or presented.

In his third point of error, appellant asserts that the State=s failure to disclose Marissa=s contradictory statements violated his right to due process under the 14th amendment to the U.S. Constitution.  Appellant argues that Marissa=s statement about Robinson contradicts her testimony identifying appellant as the assailant.  A due process violation occurs when a prosecutor (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Cr.App.2000), citing Thomas v. State, 841 S.W.2d 399, 404 (Tex.Cr.App.1992). 

After considering all of the evidence, we do not find that Marissa=s reference to Robinson was favorable to appellant or that it created the probability of a different outcome.  Marissa identified Catherine=s and appellant=s voices and physical appearances as belonging to the assailants.  Appellant was the only male assailant present.  His DNA matched that on the mask found at the scene.  Appellant=s third point is overruled.

In his fourth point of error, appellant argues that the trial court=s admission of a four-page letter seized from his home denied him his right to be free from unreasonable searches and seizures.  The letter was written by appellant and described his activities during the days immediately surrounding the time of the offenses.  Appellant testified that he wrote the letter for one of Catherine=s attorneys to provide an accounting of where the couple was on the Monday and Tuesday of the week of the murder.  Appellant=s trial counsel objected to the admission of the document during trial.

TEX. CODE CRIM. PRO. ANN. art. 18.02(10) (Vernon Supp. 2002) specifies that a search warrant may be issued to search for and seize property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.  However, third parties have the authority to consent to a search when they have equal control over and equal use of the premises being searched.  United States v. Matlock, 415 U.S. 164, 172 (1974); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Cr. App.2002).  The common authority derives from the mutual use of the property, not the ownership or lack thereof.  Maxwell v. State, supra at 281-82.

When the officers arrived at the Shelton home to execute the search warrant, Catherine was the only person home.  Catherine told the officers conducting the search to make copies of anything in the house and even explained how to use her fax machine to make copies.  It is undisputed that, at the time of the search, both Catherine and appellant were living in the home as husband and wife.  Catherine had the authority to consent to the search.  The fourth point is overruled.

In his fifth point of error, appellant argues that the trial court=s refusal to hold a hearing on his motion for new trial violated his right to due process.  The trial court denied the motion without a hearing on December 19, 2000.  We review a trial court=s denial of a hearing on a motion for new trial under an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 695 (Tex.Cr.App.1993).

The right to a hearing on a motion for new trial is not absolute.  Torres v. State, 4 S.W.3d 295, 296 (Tex.App. - Houston [1st Dist.] 1999, no pet=n).  In some instances, a defendant has the right to a hearing on a motion for new trial when the motion raises matters that cannot be determined from the record.  Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App.1993).  As a prerequisite to a hearing, the motion for new trial must be supported by affidavit of the accused or someone else specifically showing the truth of the grounds alleged as a basis for a new trial.  Reyes v. State, supra at 816.  If the defendant=s motion and affidavit are sufficient, a hearing on the motion is mandatory.  Reyes v. State, supra at 816.

There is no affidavit attached to appellant=s motion for new trial.  Instead, there is a verification signed by appellant=s attorney which states: 

I am the attorney for Clinton Dale Shelton and have been unable to converse with my client since the trial of this matter as correctional officials transferred Mr. Shelton to the TDCJ shortly after the trial of this matter, and; therfore (sic), I have been unable to have Defendant sign this Motion for New Trial.  However, I have read the above and foregoing Motion For New Trial and all of the allegations of fact contained therein are true and correct.

A similar verification was found to be insufficient as an affidavit in support of a motion for new trial in Alcott v. State, 26 S.W.3d 1 (Tex.App. B Waco 1999), aff=d, 51 S.W.3d 596 (Tex.Cr.App.2001).  In Alcott, the verification read in part: AI prepared the foregoing DEFENDANT=S MOTION FOR NEW TRIAL.  I have personal knowledge of facts presented in this motion and they are true and correct.@  As in Alcott, the verification attached to the motion for new trial is not a supporting affidavit.  It lacks sufficient detail to put the trial court on notice that reasonable grounds for relief existed.  A hearing on the motion was not mandatory.  Appellant=s fifth point is overruled. 

In his sixth point of error, appellant complains that the trial court denied his motion for an instruction defining reasonable doubt.  An instruction is not necessary.  Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000).  The sixth point is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

July 25, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.