ACCEPTED 03-14-00180-CR 4230772 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/20/2015 1:41:28 PM JEFFREY D. KYLE CLERK
No. 03-14-0180-CR 00180 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In The Court Of Appeals for the Third District, Austin, Texas 2/20/2015 1:41:28 PM JEFFREY D. KYLE Clerk Curtis Wayne Adams, Appellant vs. The State Of Texas, Appellee
Appeal from the 299th District Court of Travis County, Texas Cause Number D-1-DC-11-904084
State’s Brief
Rosemary Lehmberg District Attorney Travis County, Texas
Rosa Theofanis Texas Bar No. 24037591 Assistant District Attorney District Attorney’s Office P.O. Box 1748 Austin, Texas 78767 Phone: 512.854.9400 Fax: 512.854.9695 Email:Rosa.Theofanis@traviscountytx.gov AppellateTCDA @traviscountytx.gov
Oral Argument Not Requested Identity of Parties and Counsel
In accordance with Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State supplements the Identity of Parties and Counsel set out in the appellant’s brief as follows:
Appellate Ms. Rosemary Lehmberg Prosecutors Travis County District Attorney P.O. Box 1748 Austin, TX 78767
Rosa Theofanis Assistant District Attorney Travis County District Attorney P.O. Box 1748 Austin, TX 78767
i Table of Contents
Identity of Parties and Counsel ......................................................... i
Index of Authorities ............................................................................ iii
Statement of the Case .......................................................................... 2
Statement Regarding Oral Argument ............................................. 3
Statement of Facts ................................................................................ 4
Summary of the Argument .................................................................. 7
State’s Reply to the Appellant’s First Point of Error ................ 9 I. The trial court did not err in exercising its discretion to exclude the appellant’s witness’s testimony. ............................................. 11 II. The appellant was afforded due process for an insanity defense. .. 17
III. The appellant’s remaining constitutional arguments are inadequately briefed. ............................................................................. 20
IV. Even if the trial court erred in excluding the testimony of Philip Baker, any error was harmless. ............................................................ 23
State’s Reply to the Appellant’s Second Point of Error .......... 28 I. Despite the fact that the State did not file Exhibit 31 with the clerk of the court 14 days prior to trial, the exhibit was properly authenticated. ........................................................................................ 29
II. Even if admission of Exhibit 31 was erroneous, the error was harmless. ................................................................................................ 36
State’s Response to the Appellant’s Third Point of Error ...... 41
I. The prosecutor’s jury argument was not improper. ......................... 42
II. Even if the prosecutor’s argument was improper, an instruction to disregard was sufficient to cure any prejudice..................................... 46
Prayer ...................................................................................................... 48
Certificate of Compliance .................................................................. 50
Certificate of Service .......................................................................... 50
ii Index of Authorities
CASES
Ake v. Oklahoma, 740 U.S. 68 (1985) ................................................ 17, 18
Anderson v. State, 717 S.W. 2d 622 (Tex. Crim. App. 1986) .................. 38
Baker v. State, 682 S.W.2d 701 (Tex. Crim. App. 1986) ......................... 15
Bigby v. State, 892 S.W. 2d 864 (Tex. Crim. App. 1994) ........................ 15
Borjan v. State, 787 S.W. 2d 53 (Tex. Crim. App. 1990)......................... 42
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ........................ 45
Coble v. State, 330 S.W. 3d 253 (Tex. Crim. App. 2010)......................... 36
Cooks v. State, 844 S.W. 2d 697 (Tex. Crim. App. 1992) ........................ 47
De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993) ............ 17, 18
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004)............... 21, 40
Harris v. State, No. 03-97-00384-CR,1998 WL 546179 (Tex. App.—
Austin Aug. 31, 1998) (not designated for publication) ....................... 32
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ...................... 46
Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). ....... 42
Johnson v. State, 604 S.W. 2d 128 (Tex. Crim. App. 1980) (panel op.).. 45
Johnson v. State, 967 S.W. 2d 410 (Tex. Crim. App. 1998) ........ 24, 36, 37 iii King v. State, 953 S.W. 2d 266 (Tex. Crim. App. 1997) .............. 24, 26, 37
Kotteakos v. United States, 328 U.S. 750 (1945) ........................ 24, 26, 36
Ladd v. State, 3 S.W. 3d 547 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1070 (2000) ..................................................................................... 47
Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)........................... 42
Modden v. State, 721 S.W. 2d 859 (Tex. Crim. App. 1986)..................... 44
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ..................
.............................................................................................. 11, 29, 35, 41
Morgan v. State, 869 S.W.2d 388 (Tex. App.—Tyler 1993, pet. ref’d) ... 15
Pacheco v. State, 757 S.W. 2d 729 (Tex. Crim. App. 1988). ................... 14
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002). .............. 23, 25, 26
Reed v. State, 811 S.W. 2d 582 (Tex. Crim. App. 1991).......................... 33
Reyna v. State, 168 S.W. 3d 173 (Tex. Crim. App. 2005) ....................... 31
Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005) ......................... 48
United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir. 1989) .............. 33
United States v. Scheffer, 523 U.S. 303 (1998) ....................................... 25
Wead v. State, 129 S.W.3d 126 (Tex. Crim. App. 2004) ......................... 41
Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007) ............... 35
iv STATUTES
TEX. CODE. CRIM. PROC. art. 37.07. .......................................................... 44
TEX. PENAL CODE § 8.01 ............................................................................ 12
TEX. R. APP. PROC. 38.1. ...................................................................... 21, 40
TEX. R. APP. PROC. 44.2(a) ........................................................................ 24
Tex. R. App. Proc. 44.2(a)–(b) ................................................................... 23
TEX. R. EVID. 401 ....................................................................................... 12
TEX. R. EVID. 901(b)(1) .............................................................................. 35
TEX. R. EVID. 902(10) ................................................................................ 34
TEX. R. EVID. 902(10), 61 TEX B.J. 374 (1998) (current version at TEX.
R. EVID. 902(10)) .................................................................................... 30
v No. 03-14-0180-CR In the Court Of Appeals Third District Austin, Texas
Curtis Wayne Adams, Appellant
vs.
The State of Texas, Appellee
Appeal from the 299th District Court Travis County, Texas Cause Number D-1-DC-11-904084
To the Honorable Court of Appeals:
The State of Texas, by and through the District Attorney for Travis County, respectfully submits this brief in response to that of the appellant.
1 Statement of the Case
Nature of The appellant was charged with one count of Aggravated the Case Assault-Bodily Injury with a Deadly Weapon. CR 7.
Trial Court The Honorable Karen Sage, Wilford Flowers, and Bob Perkins, Judges, presiding 299th Judicial District of Travis County, Texas. Cause No. D-1-DC-11-904084. 1 RR 1.
Course of On November 3, 2011, the grand jury for Travis County Proceedings indicted the appellant for aggravated assault with a deadly weapon. CR 7. The indictment also included an enhancement paragraph alleging the appellant had a prior conviction for aggravated assault. CR 7-8. The appellant proceeded to trial by jury on November 14, 2011, pleading “not guilty.” 3 RR 5. 1 RR 3. The State presented thirteen witnesses during the guilt/innocence phase of the trial and the appellant presented none. 1 RR 4-6. The appellant did not testify. 1 RR 3-6. At the close of evidence, the jury found the appellant guilty of aggravated assault with a deadly weapon. 5 RR 89. The appellant elected to go to the jury for sentencing. 5 RR 89-90. The punishment stage of the trial began on November 16, 2011. 5 RR 90. 1 RR 7. The State presented four witnesses and the defense presented three. 1 RR 7-9. The appellant did not testify. Id. On November 17, 2011, the jury sentenced the appellant to 20 years imprisonment in the Texas Department of Criminal Justice. CR 65; 6 RR 105.
2 Disposition Date Sentenced: November 17, 2011. CR 65; 6 RR 105. Sentence: 20 years imprisonment. Id.
Appeal The appellant was given the opportunity to file an out-of- time appeal of the judgment of conviction in this cause. Supp. CR 49. Notice of Appeal Filed: March 21, 2014. Supp CR 47. Appellant’s Brief Filed: October 22, 2014. Appellee’s Brief Timely if Filed: February 20, 2015.
Statement Regarding Oral Argument
Because the issues, facts, legal authorities, and
arguments pertinent to the instant appeal are adequately
addressed in the briefs submitted by the parties, the State
respectfully asserts that the Court’s decisional process would
not be significantly aided by oral arguments. Accordingly, the
State does not request oral argument.
3 Statement of Facts
On the night of February 7, 2011, Aubry JeanJacques
was leaving a drug store with his brother’s heart medication
when the appellant, a stranger, approached him. 4 RR 115.
The appellant knocked Mr. JeanJacques to the ground,
straddled him, and began punching him repeatedly, delivering
upwards of 20 blows to his face. 4 RR 27–29. Mr. JeanJacques
was critically injured by the time the police and paramedics
arrived. Mr. JeanJacques was having trouble breathing due to
the blood in his airway and was nearly unconscious. 4 RR 89.
91. 125. At the time of trial, Mr. JeanJacques’s injuries had
caused him to experience severe headaches, cloudy vision, and
memory loss; health problems he did not have prior to the
assault. 4 RR 118–19. After leaving Mr. JeanJacques semi-
conscious and gravely injured, the appellant walked away from
4 the scene, where he was quickly detained by the Austin Police
Department. 4 RR 71, 90–91, 127.
Prior to trial, the appellant’s trial counsel, William
Browning, notified the Court that he would be presenting an
insanity defense. CR 101; 4 RR 7. The Honorable Karen Sage
accepted the appellant’s notice of an insanity defense and
ordered that Dr. Harold Scott be appointed to administer a
psychiatric evaluation to the appellant. CR 103–04. At trial,
the Honorable Bob Perkins agreed that the appellant could
proceed with presenting an insanity defense. 4 RR 7.
At trial, the appellant called his former roommate, Mr.
Philip Baker to testify to his insanity at the time of the
assault. 5 RR 46. During voir dire, Mr. Baker described the
appellant as “delusional,” but said that he had not seen the
5 appellant since at least ten days prior to the assault. 5 RR 50,
64. The State objected to this testimony as irrelevant to the
issue of whether the appellant was insane at the time of the
assault. 5 RR 65. The trial court agreed with the State and
declined to allow Mr. Baker to testify. 5 RR 66. The appellant
called no other witnesses in support of his insanity defense.
6 Summary of the Argument
1. The appellant was not denied the opportunity to present an insanity defense. The appellant had a psychiatrist to evaluate him as well as assistance of counsel in his insanity defense. He was able to secure a jury instruction on insanity and argued insanity in his closing jury argument without objection. The trial court did not abuse its discretion in excluding the testimony of Philip Baker, the appellant’s friend and former roommate because his testimony was irrelevant to question of whether the appellant knew right from wrong at the time of the assault. The proper exclusion of this evidence did not amount to the denial of the opportunity to present an insanity defense. Even if the trial court erred in excluding the testimony of Philip Baker, any error was harmless.
2. The trial court’s decision to admit Exhibit 31, the victim’s EMS Patient Care Report, into evidence was not an abuse of discretion. Despite the fact that the State did not file Exhibit 31 with the clerk of the court 14 days prior to trial, the exhibit was properly authenticated. Even if the admission of the exhibit was erroneous, the error was harmless.
3. The prosecutor’s jury argument was not improper. The prosecutor’s plea to the jury to focus on their determination of guilt or innocence rather than
7 punishment was not improper jury argument and it introduced no extraneous offenses or prior bad acts to the jury. Even if the prosecutor’s argument was improper, an instruction to disregard was sufficient to cure any prejudice. The trial court did not abuse its discretion in denying the appellant’s motion for a mistrial.
8 State’s Reply to the Appellant’s First Point of Error
The trial court did not abuse its discretion in excluding the testimony of Philip Baker, the appellant’s friend and former roommate because his testimony was irrelevant to the issue of insanity. The appellant was afforded due process in his insanity defense and the proper exclusion of this evidence did not amount to the denial of the opportunity to present an insanity defense. Even if the trial court erred in excluding the testimony, any error was harmless.
Argument and Authorities
The appellant contends that the trial court erred in
ruling that his sole witness to his inability to discern right
from wrong could not testify during the guilt-innocence
phase of the trial. Appellant’s Brief at 9. The appellant
9 further equates this exclusion of evidence to a total denial of
his opportunity to present an insanity defense. Appellant’s
Brief at 9.
However, the trial court did not err in excluding the witness,
Philip Baker’s, testimony. The testimony was cumulative and
irrelevant to the question of whether the appellant knew right
from wrong at the time of the assault. Further, exclusion of this
evidence did not deny the appellant the opportunity to present an
insanity defense. The appellant was able to secure an instruction
giving the jury the option of finding him not guilty by reason of
insanity. The appellant also addressed his alleged insanity in his
jury argument without objection. The appellant was given due
process for presentation of insanity defense, including a
psychiatrist to evaluate him.
10 Standard of Review
An appellate court should not set aside a trial court’s
evidentiary ruling absent an abuse of discretion. Montgomery v.
State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). The test for
abuse of discretion is whether the trial court acted “without
reference to any guiding rules or principles” and in a manner that
was “arbitrary or unreasonable.” Id. at 380.
I. The trial court did not err in exercising its discretion to exclude the appellant’s witness’s testimony.
The trial court did not err in excluding the testimony of
the appellant’s witness during the guilt-innocence phase.
The appellant’s witness was examined during voir dire and
his testimony was correctly found to be irrelevant to the
issue of whether the appellant knew right from wrong at the
time of the crime. 5 RR 46–66.
11 A. The appellant’s witness’s testimony was irrelevant to the issue of insanity. Texas Rule of Evidence 401 defines relevant evidence
as “evidence having any tendency to make the existence of a
fact that is of consequence…more or less probable than it
would be without the evidence.” TEX. R. EVID. 401. In order
to show insanity under § 8.01 of the Texas Penal Code, the
appellant needed to demonstrate that he was both suffering
from a “severe mental disease or defect” and did not know
right from wrong at the time of the assault. TEX. PENAL
CODE § 8.01(a).
Testimony from the appellant’s friend and former
roommate, Philip Baker, did not tend to make either of the
elements of the insanity defense more or less true. In
undergoing the evidentiary analysis during voir dire, the
12 trial court found Mr. Baker’s testimony regarding the
appellant’s general mental health to be cumulative because
after hearing the testimony of the State’s expert witness,
there was no real question as to the appellant’s mental
health problems and propensity towards delusion. 5 RR 61.
Rule 403 says that even if evidence is relevant, it may still
be excluded as a “needless presentation of cumulative
evidence.” TEX. R. EVID. 403.
As to the question of whether the appellant knew right
from wrong at the time of the crime, Mr. Baker’s testimony
provided nothing probative. During voir dire, Mr. Baker
admitted that he was “not in a position to render any opinion
as to whether or not [the appellant] knew the difference
between right and wrong” at the time of the assault. 5 RR
51. When questioned further as to why he had formed an
13 impression that the appellant did not know right from wrong
two to three weeks prior to the crime, Mr. Baker said only
that he knew the appellant “better than his own family” and
that the appellant was “delusional,” a fact that had already
been established by previous testimony. 5 RR 16, 63–65.
Additionally, Mr. Baker’s interactions with the
appellant were too far removed in time to support a finding
of legal insanity. While “properly admitted testimony of lay
witnesses is sufficient to support a finding of insanity,” the
testimony is not properly admitted if it does not speak to
circumstances contemporaneous with the crime itself.
Pacheco v. State, 757 S.W. 2d 729, 733–35 (Tex. Crim. App.
1988). Mr. Baker repeatedly admitted that he had not seen,
spoken to, or observed the appellant on the date of the
assault, and so could not render any opinion as to the
14 appellant’s mental state at the time of the crime. Whereas
an expert’s opinion as to whether a perpetrator was insane
at the time of the crime may properly formed from medical
records and observations further removed from the time of
the crime, a lay witness’s opinion testimony is limited to his
impressions of what he has personally observed. Bigby v.
State, 892 S.W. 2d 864, 889 (Tex. Crim. App. 1994). In
supporting his contention that Mr. Baker’s testimony was
timely enough to be admitted, the appellant relies on cases
involving expert testimony derived from evaluations 11 days,
22 days, and “a few weeks” after the crimes occurred.
Appellant’s Brief at 13; Baker v. State, 682 S.W.2d 701 (Tex.
Crim. App. 1986); Bigby, 892 S.W. 2d 864; Morgan v. State,
869 S.W.2d 388 (Tex. App.—Tyler 1993, pet. ref’d). The
appellant also argues that the State’s witness in this case,
15 psychiatric expert Dr. Scott, was permitted to offer his
observations from his evaluation of the appellant four
months after the crime. Mr. Baker, however, is held to a
different standard as a lay witness. His testimony must be
based on what he had personally observed about the
appellant at a time close to the commission of the crime.
When pressed in voir dire, Mr. Baker could not give specific
examples supporting the appellant’s claim that he did not
know right from wrong at the time of the crime. Mr. Baker
testified that the last time he had seen the appellant, he was
“in the grip of…religious delusions and…paranoia,” but did
not relate that to his “impression” that the appellant was
unable to discern the difference between right and wrong. 5
RR 50–51. For this reason, Mr. Baker’s testimony is
ultimately inadmissible.
16 II. The appellant was afforded due process for an insanity defense.
The appellant also asserts that his Fifth Amendment
right to due process was violated by the trial court’s
exclusion of Mr. Baker’s testimony. Due process for a
defense of insanity requires that a defendant be given access
to the “raw materials integral to the building of an effective
defense” so that he may be “at least minimally equipped to
participate meaningfully in [the] adversarial process.” De
Freece v. State, 848 S.W.2d 150, 155-158 (Tex. Crim. App.
1993) (citing Ake v. Oklahoma, 740 U.S. 68 (1985)). In De
Freece, the Court of Criminal Appeals held that appointment
of a psychiatrist is a raw material to which defendants are
entitled if they demonstrate that insanity will be a
17 significant factor in the case. Id. at 156 (citing Ake, 740 U.S.
at 83).
The appellant asked for and was appointed a
psychiatrist to evaluate him in aid of his insanity defense.
CR 103. The appellant also received an attorney to file the
insanity motion on his behalf and further argue his insanity
at trial. CR 93. Those are the raw materials required for
due process to be fulfilled. The Court has not held that
defendants are entitled to present otherwise irrelevant
evidence simply because they have no other evidence tending
to prove the elements of insanity. The appellant was not
precluded from presenting an insanity defense. Rather, the
evidence he presented was not probative of his alleged
inability to perceive right and wrong, which made it
irrelevant under Texas Rule of Evidence 401. At trial, the
18 appellant questioned the State’s witness on the subject of his
alleged insanity, argued for a finding of insanity in his
closing statement, and secured a jury instruction defining
insanity and giving the jury the option to find him not guilty
by reason of insanity. 5 RR 32–46, 82–84; CR 46–47. While
this exclusion removed the testimony of the appellant’s sole
witness, it is not tantamount to a denial of the appellant’s
opportunity to present an insanity defense at all. It was a
proper evidentiary decision, fully within the trial court’s
discretion. The appellant was given the forum in which to
present his defense, but was not able to provide any relevant
evidence with which to mount it. The appellant was given
his due process and a fair trial. The trial court did not abuse
its discretion in excluding the irrelevant evidence that the
appellant offered.
19 III. The appellant’s remaining constitutional arguments are inadequately briefed.
In his brief, the appellant alleges violations of the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the
U.S. Constitution. The Fifth Amendment due process claim
is addressed above, but the appellant’s claim that he was
deprived of his constitutional right to a fair trial and was
subjected to cruel and unusual punishment are not only
without merit, they are not fully developed.
The appellant does not specify how the trial court’s
ruling excluding the testimony of Philip Baker impacted his
Sixth, Eighth, and Fourteenth Amendment or Texas
Constitutional rights. The appellant’s Sixth Amendment
claim consists of one sentence—the accusation that the trial
20 court abused its discretion by ruling on the State’s objection
to Phillip Baker’s testimony “without any reference to
relevant contraindicating principles of law.” Appellant’s
Brief at 13. The parties must present “clear and concise
argument for the contentions made, with appropriate
citations to authorities and the record.” TEX. R. APP. PROC.
38.1. The appellant’s brief makes no argument in support of
his conclusory allegation of a Sixth Amendment violation.
Because the claim is inadequately briefed, it is unclear what
constitutes the alleged violations of his constitutional rights
under these provisions. See Hankins v. State, 132 S.W.3d
380, 385 (Tex. Crim. App. 2004) (“Because the appellant does
not provide any argument or authority in support of this
contention, it is inadequately briefed”). For this reason, the
claim should be overruled.
21 The appellant also equates the trial court’s exclusion of
Mr. Baker’s testimony with a violation of the Eighth
Amendment’s protection against a punishment that is
neither cruel nor unusual. Appellant’s Brief at 13. With
regards to this claim, it should be noted that Mr. Baker was
allowed to testify in the penalty phase of the trial so as to
ensure that the jury was provided with all the evidence
necessary to assess a fair and proper punishment. 6 RR 53–
66. The exclusion of that testimony at the guilt-innocence
phase did not subject the appellant to an unconstitutionally
cruel and unusual punishment. Cruel and unusual
punishment, as characterized by the authority to which the
appellant cites, would be subjecting a person with limited
moral culpability to a gravely disproportionate penalty, such
as execution. Appellant’s Brief at 13. Further, neither the
22 proportionality nor the propriety of the sentence is at issue
in the appeal, as this point of error only concerns the guilt-
innocence phase of the trial. Again, the appellant’s claim is
not adequately developed or briefed.
IV. Even if the trial court erred in excluding the testimony of the appellant’s witness, any error was harmless.
Exclusion of evidence in a criminal trial should be
disregarded unless it is constitutional error or non-
constitutional error that substantially affects the defendant’s
rights. TEX. R. APP. PROC. 44.2(a)–(b). Exclusion of a
defendant’s evidence is constitutional error “only if the
evidence forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a
defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim.
App. 2002). Constitutional error is subject to harmless error
23 review. TEX. R. APP. PROC. 44.2(a). Non-constitutional error
is disregarded unless it affects the appellant’s substantial
rights. Id. Error affects a substantial right when it has a
“substantial and injurious effect or influence in determining
the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,
776 (1945); King v. State, 953 S.W. 2d 266, 271 (Tex. Crim.
App. 1997). A criminal conviction should not be overturned
for non-constitutional error if the appellate court, after
examining the record as a whole, has “fair assurance that
the error did not influence the jury, or had but a slight
effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998).
The appellant claims that the trial court denied him an
opportunity to present his insanity defense. However, as
discussed supra, the appellant was prevented only from
24 presenting evidence that was redundant, cumulative, and
ultimately not probative of the only element of his insanity
defense that was in dispute—that he did not know right
from wrong at the time of the crime. The appellant believes
that he was deprived an opportunity to present his defense
only because without the testimony of his sole witness, he
had no other evidence to present. The appellant’s allegation
of error rests on the assumption that he was denied his right
to present evidence in his favor. Appellant’s Brief 11.
However, no such right exists. See United States v. Scheffer,
523 U.S. 303, 316 (1998); Potier v. State, 68 S.W.3d 657, 659
(Tex. Crim. App. 2002). Any error in the trial court’s
exclusion of the witness’s testimony was harmless.
Error is also harmless as long as it did not have a
substantial or injurious effect or influence on the jury’s
25 decision. Kotteakos, 328 U.S. at 776; King, 953 S.W. 2d at
271. That the appellant was “unable to [ ] present his case to
the extent…he desired is not prejudicial where…he was not
prevented from presenting the substance of his defense to
the jury.” Potier, 68 S.W. 3d at 666. The appellant was not
prevented from presenting his defense to the jury. The
appellant was able to cross-examine the State’s witness on
the subject of his alleged insanity; he argued for a finding of
insanity in his closing statement, and secured a jury
instruction defining insanity and giving the jury the option
of finding him not guilty by reason of insanity. 5 RR 32–46,
82–84; CR 46–47. Presenting the jury with Mr. Baker’s
testimony would not have changed the jury’s finding of
insanity in any appreciable way. The main thrust of Mr.
Baker’s testimony was that the appellant had a history of
26 delusion, evidence which had already been presented
through the testimony of the State’s witness, Dr. Scott.
Further, questioning at voir dire revealed that Mr. Baker
possessed no information or timely, personal observations
counteracting the basis for Dr. Scott’s conclusion that the
appellant knew right from the wrong at the time of the
offense. 5 RR 21–26.
The appellate court affords great deference to the trial
judge’s determination of the admissibility of evidence unless
the decision constitutes an abuse of discretion. It is evident
from the record that the trial judge conscientiously utilized
all the requisite guiding rules and principles to come to a
conclusion that was neither arbitrary nor unreasonable.
Accordingly, the trial court’s ruling on the admissibility of
Mr. Baker’s testimony should be affirmed.
27 State’s Reply to the Appellant’s Second Point of Error
The trial court’s decision to admit Exhibit 31, the victim’s EMS Patient Care Report, into evidence was not an abuse of discretion because despite the fact that the State did not file Exhibit 31 with the clerk of the court 14 days prior to trial, the exhibit was properly authenticated. Even if the admission of the exhibit was erroneous, the error was harmless.
The appellant objects to the admission of State’s
Exhibit 31, the victim’s Travis County EMS Patient Care
Report, because he claims it was improperly authenticated
under Texas Rule of Evidence 902(10) and so constituted
inadmissible hearsay. Appellant’s Brief at 15. The trial
court did not err in permitting admission of this
authenticated report.
28 Standard of Review
The appellate court reviews a trial court’s evidentiary
ruling for abuse of discretion. Montgomery v. State, 810
S.W.2d 372, 379 (Tex. Crim. App. 1990)). The court should
not upset the trial court’s ruling unless the court acted
“without reference to any guiding rules or principles” and in
a manner that was “arbitrary or unreasonable.” Id. at 380.
I. Despite the fact that the State did not file Exhibit 31 with the clerk of the court 14 days prior to trial, the exhibit was properly authenticated.
At the time of the appellant’s trial in 2012, Texas Rule
of Evidence 902(10) provided that business records
admissible under Rule 803(6) and 803(7) may be
authenticated when accompanied by an affidavit “filed with
29 the clerk of the court…at least fourteen days prior” to the
start of the trial. TEX. R. EVID. 902(10), 61 TEX B.J. 374
(1998) (current version at TEX. R. EVID. 902(10)). At trial,
the State offered the victim’s medical records under 803(6),
and the appellant’s trial counsel objected because the records
had never been filed with the clerk’s office. 4 RR 94–95.
However, the State properly notified the appellant that it
intended to offer these records and filed the authenticating
affidavit within the 14 day time limit prescribed by the Rule.
4 RR 95–96. The State also provided a copy of the records to
the appellant prior to their introduction at trial, action
which was not required by the Rule. Id. Trial counsel’s only
objection to the admission of the record was that it was not
on file with the district clerk prior to the start of the trial. 4
RR 96.
30 The appellant also makes an unsupported Sixth
Amendment Confrontation Clause claim, insinuating that
the objection at trial was more than a procedural
authentication issue. Brief 14–15. However, there was no
objection on Confrontation Clause grounds at trial, only a
hearsay objection to a lack of proper authentication. “An
objection [to] hearsay does not preserve error on
Confrontation Clause grounds.” Reyna v. State, 168 S.W. 3d
173, 179 (Tex. Crim. App. 2005). The appellant’s Sixth
Amendment clause argument should be overruled.
Only one issue was preserved with regard to the
admission of the victim’s patient care report—whether the
exhibit was properly authenticated under Rule 902(10)(a).
The appellant states that this Court has held that “medical
records which the State failed to file with the clerk two
31 weeks before trial are inadmissible by law.” Appellant’s
Brief 16 (citing Harris v. State, No. 03-97-00384-CR,1998
WL 546179, at *2 (Tex. App.—Austin Aug. 31, 1998) (not
designated for publication). However, in Harris, the case
that the appellant relies upon, this Court actually held that
the medical records at issue had been properly admitted
because the custodian of the record was called as a witness
to testify. Harris v. State, No. 03-97-00384-CR,1998 WL
546179, at *2. Although Harris goes on to re-state the
remaining part of the relevant evidentiary rule, saying that
records may also be admitted by affidavit, that case did not
interpret or rely upon Rule 902(10) because “the prosecutor
chose to introduce the medical records through the first
method rather than by filing an affidavit.” Id. Harris did
32 not restrict the trial court’s discretion to admit the records
under Rule 902(10)(a).
The trial court did not err in admitting Exhibit 31
simply because the State did not file a copy of the Patient
Care Report with a clerk’s office. Conclusive proof of
authenticity before allowing admission of disputed evidence
is not required; Rule 901 requires only that the proponent of
the evidence furnish the court with evidence “sufficient to
support a finding that the evidence in question is what its
proponent claims it to be.” See e.g. Reed v. State, 811 S.W.
2d 582, 587 (Tex. Crim. App. 1991) (citing United States v.
Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989)). In this
case, the State provided the trial court with more than
enough evidence to support a finding that the Patient Care
33 Report was authentic, and, in fact, went “beyond what the
Rule require[d]. 4 RR 98.
The trial court found that the State had complied with
the “spirit of the law” and had accomplished the ultimate
objective of authentication through its actions. Id. In fact,
the State anticipated the 2013 modification to Rule 902(10),
which no longer requires that the record at issue be filed
with the district clerk. The rule now states that
authentication is accomplished by serving the opposing party
with a copy of the record within 14 days of the trial. TEX. R.
EVID. 902(10).
Moreover, the report was also authenticated by a
second method. Immediately before the exhibit was offered
into evidence, Amanda Stinson (neé Randle), the paramedic
34 who responded to the assault on Mr. JeanJacques, testified
that she had written the report. 4 RR 93–94. Texas Rule of
Evidence 901(b)(1) allows a “witness with knowledge” to
testify that “a matter is what it is claimed to be.” TEX. R.
EVID. 901(b)(1). As the prosecutor pointed out at trial, Ms.
Stinson’s testimony that she wrote the patient care report
properly authenticated the document. 4 RR 99. Even if
authentication was not proper under Rule 902(10), the
report was admissible under Rule 901(b)(1). The appellate
court must uphold the trial court’s decision “as long as [it]
was correct under any theory of law applicable to the case.”
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007) (citing Montgomery v. State, 810 S.W.2d at 391.
35 Because the report was properly authenticated under
two independent bases, the trial court did not commit an
abuse of discretion in admitting it.
II. Even if admission of Exhibit 31 was erroneous, the error was harmless.
Even if the trial court did err in admitting the victim’s
medical records, the error was harmless. Erroneous
admission of evidence is non-constitutional error. See, e.g.,
Coble v. State, 330 S.W. 3d 253, 280 (Tex. Crim. App. 2010);
Johnson v. State, 967 S.W. 2d 410, 417 (Tex. Crim. App.
1998). Non-constitutional error is disregarded unless it
affects the appellant’s substantial rights. TEX. R. APP. P.
44.2(b). Error affects a substantial right when it has a
“substantial or injurious effect or influence in determining
the jury’s verdict.” Kotteakos v. United States, 328 U.S. at
36 776; King v. State, 953 S.W. 2d at 271. A criminal conviction
should not be overturned for non-constitutional error if the
appellate court, after examining the record as a whole, has
“fair assurance that the error did not influence the jury, or
had but a slight effect.” Johnson v. State, 967 S.W. 2d at
417.
Admission of Exhibit 31, the victim’s Patient Care
Report from Travis County EMS, did not have a substantial
or injurious effect on the appellant’s case, nor did it influence
the jury in reaching their verdict. Contrary to the
appellant’s assertion, the information about the extent of the
victim’s injuries contained in the report was not “highly
prejudicial.” Appellant’s Brief 17. In fact, the report’s flat
descriptions of the injuries paled in comparison to the
previous uncontested testimony of witnesses who described
37 the victim’s injuries in graphic detail. One witness said he
heard the victim’s nose break, while paramedic Amanda
Stinson testified that the victim was having trouble
breathing due to the blood flooding his throat. 4 RR 28-29,
76. Even more vivid are the photos of victim’s injuries that
were admitted without objection before Exhibit 31 was
offered into evidence. 4 RR 83. Additionally, the paramedic
who wrote the report, Amanda Stinson, testified to the same
information about the victim’s injuries immediately before
the exhibit was admitted. 4 RR 88–94. Inadmissible
evidence is harmless “if other evidence at trial is admitted
without objection and it proves the same fact that the
inadmissible evidence sought to prove.” Anderson v. State,
717 S.W. 2d 622, 628 (Tex. Crim. App. 1986)(internal
citations omitted.)
38 Further, it is unlikely that the information in Exhibit
31 influenced or directed the jury’s decision in any way.
Because the appellant conceded that he assaulted Mr.
JeanJacques, the jury had two options—to find the appellant
guilty or to find him not guilty by reason of insanity. 5 RR
83. The EMS report did not contain any information tending
to prove or disprove that the appellant was suffering from a
severe mental disease or defect or that he did not know right
from wrong at the time of the assault. Even if the exhibit
were admitted in error, any error was harmless.
39 III. The appellant’s remaining Constitutional claims should be overruled.
As discussed supra, the appellant’s Sixth Amendment
Confrontation Cause claim was not preserved at trial, and
should be overruled by this Court. The appellant alleges an
additional Fifth Amendment violation by admission of
Exhibit 31 into evidence, but he fails to develop that claim
any further. The appellant makes a contention, but no
arguments to support it, and so has inadequately briefed his
claim. The claim should be overruled. See Hankins v. State,
132 S.W. 3d 380, 385 (Tex. Crim. App. 2004); TEX. R. APP.
PROC. 38.1(i).
40 State’s Response to the Appellant’s Third Point of Error
The prosecutor’s plea to the jury to focus on their determination of guilt or innocence rather than punishment was not improper jury argument and introduced no extraneous offenses or prior bad acts to the jury. Regardless, the trial court did not abuse its discretion in denying the appellant’s motion for a mistrial because an instruction to disregard was sufficient to cure any prejudice.
Standard of Review When reviewing a trial court’s ruling on a motion for
mistrial, an appellate court must uphold the ruling absent an
abuse of discretion and as long as it is “within the zone of
reasonable disagreement.” Wead v. State, 129 S.W.3d 126, 129
(Tex. Crim. App. 2004) (citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990).
41 I. The prosecutor’s jury argument was not improper.
Proper jury argument must fall within one of four
categories: “(1) summary of the evidence; (2) reasonable
deduction from the evidence; (3) in response to argument of
opposing counsel; and (4) a plea for law enforcement.”
Borjan v. State, 787 S.W. 2d 53, 55 (Tex. Crim. App. 1990).
Argument that is improper under this standard only
constitutes reversible error if it is “extreme, manifestly
improper, injects new or harmful facts into [the] case or
violates a mandatory statutory provision and is thus so
inflammatory that its prejudicial effect cannot reasonably be
cured by judicial instruction to disregard argument.” Long
v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)
42 (quoting Hernandez v. State, 819 S.W.2d 806, 820 (Tex.
Crim. App. 1991)).
The statement to which the appellant objects is as
follows: “You don’t get to consider what you think should
happen to this man today, right now, because he has a
second phase of trial, and during that phase you are going to
hear more information. You are going to hear more
information about this defendant from the State and you are
going to hear more information about this defendant from
the defense attorney, so you don’t get to think about what
you think should happen to him when you’re making your
decision today because you don’t know the whole story about
him.” 5 RR 80.
43 The prosecutor’s statement did not constitute improper
jury argument. The statement introduced no extraneous
offenses or prior bad acts to the jury, but rather implored the
jury to focus on their determination of guilt or innocence
rather than punishment. The distinction between the two
phases of a criminal trial is foundational. See generally TEX.
CODE. CRIM. PROC. art. 37.07. To the extent that the
prosecutor was reminding the jury of their separate and
distinct roles in the guilt-innocence phase and the
punishment phase of the trial, then the statement would be
a plea for law enforcement, well within the bounds of proper
jury argument. See Modden v. State, 721 S.W. 2d 859, 862
(Tex. Crim. App. 1986). Prior to the portion to which trial
counsel objected, the prosecutor admonished the jury that
they were only permitted to use evidence of the appellant’s
44 mental illness to determine whether he was guilty or not
guilty by reason of insanity. This reminder was especially
important in a case like this in which the appellant had
already conceded that he had committed the assault on the
victim. The potential for the mental illness evidence to be
used to assess culpability instead of legal guilt is heightened
in a case like this, and it makes sense that the prosecutor
would have found it necessary to address it with the jury.
Statements during jury argument must be evaluated in the
broader context of the “entire record of final arguments [in
order] to determine if there was a willful or calculated effort
on the part of the State to deprive the appellant of a fair and
impartial trial.” Cantu v. State, 939 S.W.2d 627, 633 (Tex.
Crim. App. 1997) (citing Johnson v. State, 604 S.W. 2d 128,
135 (Tex. Crim. App. 1980) (panel op.)). A statement
45 underlining the importance of the separateness of trial
phases is hardly indicative of a “willful or calculated effort”
on the part of the State to compromise the integrity of the
trial. In fact, it is a willful effort to preserve it.
II. Even if the prosecutor’s argument was improper, an instruction to disregard was sufficient to cure any prejudice.
Even assuming, for the sake of argument, that the
prosecutor’s statement was improper in any way, the trial
court did not err in denying the appellant’s motion for
mistrial in favor of an instruction to disregard. Mistrial is
an extreme curative measure, and one only reserved for
cases in which improper jury argument is “so prejudicial
that expenditure of further time and expense would be
wasteful and futile.” Hawkins v. State, 135 S.W.3d 72, 77
46 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W. 3d
547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070
(2000)). Because mistrial is such an extreme measure, an
instruction to disregard improper jury argument will
generally suffice as a curative measure unless, in light of the
record as a whole, the argument was extreme or manifestly
improper, violated a mandatory statute, or injected new facts
harmful to the accused. Cooks v. State, 844 S.W. 2d 697, 727
(Tex. Crim. App. 1992).
As discussed in the previous section, the prosecutor’s
statements were not manifestly improper, nor did they inject
new and prejudicial facts into the proceeding. The
prosecutor’s statement gave the jury the same
admonishment that they had been given several times
before—that they should only consider the issue of guilt in
47 the first phase of the trial. A restatement of such a basic
and foundational doctrine relevant to criminal proceedings
in Texas is not improper or prejudicial in any way.
Regardless, the trial court admonished the jury “to disregard
the last remark of State's counsel.” 5 RR 80-81. On, appeal,
it is generally presumed the jury followed the trial court's
instructions as given. Thrift v. State, 176 S.W.3d 221, 224
(Tex. Crim. App. 2005). The trial court was correct in
denying a mistrial and relying on the instruction to
disregard as the proper curative measure for any minimal
harm caused by the prosecutor’s statement. The decision of
the trial court denying a mistrial should be affirmed.
Prayer
WHEREFORE, the State requests that the Court
overrule all of the appellant’s points of error and affirm the
48 judgment of the trial court.
Respectfully submitted,
Rosemary Lehmberg District Attorney Travis County
Law Clerk: Lisa Elizondo /s/ Rosa Theofanis Rosa Theofanis Texas Bar No. 24037591 Assistant District Attorney District Attorney’s Office P.O. Box 1748 Austin, Texas 78767 Phone: 512.854.9400 Fax: 512.854.9695 Email: Rosa.Theofanis@traviscountytx.gov AppellateTCDA @traviscountytx.gov
49 Certificate of Compliance
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), effective December 1, 2012, the State certifies that the length of this brief is 5,938 words. The State also certifies, pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-point was used to print this brief.
/s/ Rosa Theofanis Rosa Theofanis Assistant District Attorney
Certificate of Service
This is to certify that the above State’s brief has been served on the appellant by U.S. mail, electronic mail, by facsimile, or electronically through the electronic filing manager to his attorney, Ariel Payan, 1012 Rio Grande St., Austin, Texas 78701 on this 20th day of February, 2015.
/s/ Rosa Theofanis Rosa Theofanis Assistant District Attorney