Fairow v. State

920 S.W.2d 357, 1996 WL 67998
CourtCourt of Appeals of Texas
DecidedMay 29, 1996
Docket01-94-01083-CR
StatusPublished
Cited by26 cases

This text of 920 S.W.2d 357 (Fairow v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fairow v. State, 920 S.W.2d 357, 1996 WL 67998 (Tex. Ct. App. 1996).

Opinions

OPINION

HUTSON-DUNN, Justice.

A jury found James Andrew Fairow guilty of capital murder and sentenced him to confinement for life. We affirm.

Fact Summary

Appellant, Deryk Middleton, Gary Mosby, and Andre Mosley stormed a nightclub one evening in order to rob its patrons. While other robbers took the patrons’ money, appellant vaulted the bar and attempted to empty the cash register. The club’s proprietor, Joseph Young, attacked appellant to prevent him from doing so. During the scuffle, appellant tried to fire his gun, but it was out of bullets. Young was knocked to the ground. Mosby gave appellant another gun, [360]*360and appellant struck Young in the head with it when Young attempted to resume fighting. Young still continued to fight, and appellant began to wrestle with the slide of his new gun, as if it had jammed and he was trying to unjam it. Appellant then struck Young with the gun again. During this time, Mosby obtained a gun from Mosley. While Young was falling from the last of appellant’s blows, Mosby shot Young in the chest, killing him.

Point of Error One

In his first point of error, appellant contends the trial judge erred by excluding “evidence of Deryk Middleton’s opinion concerning whether Gary Mosby intentionally caused ■the death of Joseph Young.” Appellant’s trial counsel asked Middleton whether Mosby intentionally shot Young.1 The prosecutor objected on the grounds that the question “calls for a conclusion” and “calls for speculation.” The judge sustained the objection.

This ruling is significant to appellant because the jury was instructed on the law of parties and was asked to choose among finding appellant not guilty, guilty of capital murder, guilty of felony murder, or guilty of aggravated robbery. The jury, as noted above, found appellant guilty of capital murder. Had the jury concluded that Mosby did not intentionally cause Young’s death, the jury could not have properly found appellant guilty of capital murder, because that crime requires that the death be caused “intentionally or knowingly.” See TexPenal Code Ann. § 19.03(a) (Vernon 1994) (pronouncing that a person must have caused the death “intentionally or knowingly” to have committed capital murder). Instead, the jury could have, at most, found appellant guilty of felony murder, which does not include as a necessary element that the victim’s death be caused “intentionally or knowingly.” See TexPenal Code Ann. § 19.02(b)(3) (Vernon 1994).

We agree with the judge that the question called for speculation and was therefore improper. Middleton could not properly testify whether Mosby, at the time Mosby shot Young, had the culpable mental state necessary to convict appellant of capital murder, which requires an intentional killing, rather than felony murder, which does not.

In Klein v. State, 662 S.W.2d 166 (Tex.App.—Corpus Christi 1983, no pet.), the court considered a similar question. The prosecutor asked a lay witness whether the defendant had intentionally rammed the witness’ boat with the boat the defendant was operating:

Q. In your opinion was this an intentional act?
A. Yes.

Id. at 168. The court held that the question asked for an opinion “of [the defendant's culpable mental state (i.e., intent),” and was thus improper. Id.

Likewise, in Taylor v. State, 774 S.W.2d 31 (Tex.App.—Houston [14th Dist.] 1989, pet. refd), the court held that it was error to admit testimony of the witness’ opinion “of [the defendant’s culpable mental state[.]” Id. at 34. We agree with the principles of Klein and Taylor.

The question here required Middleton to look into Mosby’s mind and determine whether Mosby actually meant to shoot Young. Because Middleton could not possibly know what was in Mosby’s mind at the time of the shooting, Middleton’s answer would have been mere speculation and thus improper.

Appellant relies on Texas Rules of Criminal Evidence 701 and 704 and Young v. State, 803 S.W.2d 335 (Tex.App.—Waco 1990), judgment vacated and cause remanded for harm analysis, 830 S.W.2d 122 (Tex.Crim.App.1992), conviction aff'd, 840 S.W.2d 785 (Tex.App.—Waco 1992), rev’d and remanded for new trial, 891 S.W.2d 945 (Tex.Crim.App.1994). None of these authorities aid appellant.

Rule 701 allows opinion testimony by a lay witness, but only if the testimony is “helpful to a clear understanding of his testimony or the determination of a fact in issue.” [361]*361Tex.R.CRIM.Evid. 701. A speculative opinion, such as an opinion on what someone else was thinking at a specific time, does not help the jury to either (1) understand the witness’ testimony better, or (2) decide the question of the other person’s intent. Mere conjecture does not assist the jury.

Rule 704 states that “[tjestimony in the form of an opinion ... otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Tex.R.CRIM.Evid. 704 (emphasis added). The opinion testimony here was not “otherwise admissible,” because it would have been speculation.

The question at issue in Young did not ask the witness his opinion of whether the defendant meant to do something. Rather, the question asked the witness what he would do had he been the defendant:

Q. Now, Mr. Berry, let’s assume for a minute that you were down there [at Billy’s Bar] working at 11:00 at night, the place is closed. And the police came in. What would you do?
A. [After objection, responses, ruling, and restatement of question]: I would just ask them what’s wrong.
Q. You would ask them what’s wrong, right?
A. Yes.
Q. You wouldn’t go back in this men’s room and hide, would you, because you wouldn’t have nothing [sic] to hide for, right?
A. No.

803 S.W.2d at 337. The court of appeals held that the question was proper, id., but this is not the same type of question that is at issue here. The question to Middleton was whether he thought Mosby intentionally shot Young, not what Middleton would do in some circumstance. Middleton could competently testify to what he would do in some event, but could not competently testify to what was in Mosby’s mind when Mosby shot Young. For the question in Young to be comparable to the one here, the Young prosecutor would have had to have asked Mr. Berry what was in the defendant’s mind when he retreated to the bathroom.

We overrule point of error one.2

Point of Error Two

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Fairow v. State
920 S.W.2d 357 (Court of Appeals of Texas, 1996)

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920 S.W.2d 357, 1996 WL 67998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairow-v-state-texapp-1996.