Franco v. State

25 S.W.3d 26, 2000 WL 190193

• Court: Court of Appeals of Texas
• Decided: August 30, 2000
• Docket: 08-98-00008-CR
• Status: Published

Opinions

OPINION

DAVID WELLINGTON CHEW, Justice.

This is an appeal of a conviction for the offense of murder. A jury found Appellant guilty and assessed punishment at 99 years in the Institutional Division of the Texas Department of Criminal Justice. Franco raises seven points of error. We affirm the conviction.

In January 1997, Myrtice and Chester Derrick left Odessa, Texas for the weekend leaving their adult son, Carl, home alone. Mrs. Derrick returned home Sunday evening. She found the kitchen in disarray. The dining table and chairs were overturned. She found her son, Carl, lying on the floor in a pool of blood. Unable to rouse him, she tried to call 911, but the phones in the kitchen and bedroom had been ripped from the walls. She ran to her neighbor’s house and he called the police.

Carl had been severely beaten with a cast iron skillet and stabbed seven or more times. The skillet hit with such force that the handle was broken off. Both of Carl’s eye sockets were broken, his nose was broken, and there were many contusions and lacerations to his face. The backs of Carl’s hands were also covered with bruises, abrasions, and lacerations. Four of the stab wounds could cause death: (1) one to the side of Carl’s head which penetrated his skull and caused swelling and hemorrhaging of the brain; (2) one to the side of his face and upper neck that severed his jugular vein; (3) a stab wound in his chest that penetrated his heart; and (4) another wound to the chest that perforated Carl’s small intestine.

Carl’s pickup track was noticed missing and a short time later, police found Byron Johnson driving the missing pickup. Johnson allegedly told the police that he had “rented” the pickup truck from Franco for twenty dollars and that Franco was staying at a “crack house” on the south side of Odessa. Johnson led the police to the house where Franco was staying.

Police found Franco in the house asleep on a couch. After being awakened, Franco agreed to go with the officers to the police station for questioning. Franco asked the officers to retrieve his shoes, leather jacket, and shirt. A detective picked up the clothing, and saw that various articles were blood-stained.

At the police station, Franco made a statement which was tape recorded. Franco said that Carl picked him up on the Andrews Highway and offered him a ride that Saturday night. They drove to Carl’s home and went inside. Inside, Carl asked Franco to come to his bedroom where he attempted to take Franco’s jeans off, ripping them in the process. Franco said that struggle began and moved from the bedroom, down the hall, and into the kitchen. Franco, who is 5’6” tall and weighing 130 pounds, insisted that he was defending himself against Carl, who was about 6’ tall and weighed around 200 pounds. When they entered the kitchen, Franco said he grabbed a frying pan and hit Carl in the head. Franco admitted that the handle broke off the pan when he hit Carl. Then Franco picked up a knife and stabbed Carl. Franco said that he stabbed Carl “everywhere because he kept cornin’ at me.” Franco also stated that he kicked Carl in the head, and kept kicking Carl because he tried to get up. Franco did not leave the house until Carl stopped moving. When he left, Franco took Carl’s wallet and pick up truck. Throughout his statement, Franco maintained that he only acted in self-defense. Franco stated that he was not injured in any way during the altercation.

In his appeal, Franco raises seven points of error for our consideration; the first point was resolved earlier in this proceeding and only six remain to be addressed here. In his second and third points of error, Franco asserts that the trial court abused its discretion when it allowed Detective Robertson to testify that Franco was found in a “crack house” and that Franco had needle marks on his arms at the time of his apprehension. Franco argues (1) that the trial court erred by not conducting a balancing test under Rule 403 of the Rules of Evidence, (2) that this evidence was more prejudicial than probative, and (3) that the evidence was inadmissible evidence of an extraneous offense, namely the use of illicit drugs.

The trial court is not required to articulate its mental balancing of the probative and prejudicial effects of the evidence. As we have stated, “[a] trial court is not ... required to conduct a separate hearing on the matter or even to announce on the record that it is mentally balancing ...” the probative value and prejudicial effect of the evidence. Menchaca v. State, 901 S.W.2d 640, 648 (Tex.App. — El Paso 1995, pet. refd). Moreover, the record clearly shows that the trial court conducted the proper balancing test during a conference outside the presence of the jury at the behest of the prosecutor in apparent compliance with Franco’s motion in limine, and immediately prior to the challenged testimony. We find no support for this element of Franco’s complaint.

Insofar as the probativeness versus the prejudicial value of the detective’s statements, the evidence does have some probative value. Franco’s sole defense was that he assaulted Carl to fend off an aggressive sexual attack. The evidence that Franco was found in a “crack house,” and that needle marks were present on Franco’s arms, when coupled with the fact that Franco took Carl’s wallet and pick up truck rebuts Franco’s defense by providing a motive. A rational inference can be drawn that Franco killed Carl during the course of a robbery to obtain money and property to purchase illicit drugs. Such evidence is admissible as proof of motive, even if we consider it to be evidence of unadjudicated extraneous offenses. See Williams v. State, 927 S.W.2d 752, 757 (Tex.App. — El Paso 1996, pet. refd), quoting Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991)(op. on reh’g).

Whether the probative value of the evidence is outweighed by unfair prejudice inherent in the detective’s statement that “[Byron Johnson] could just tell us that it was a crack house over on Bunche, is where the last time [Johnson] saw [Franco]” is a closer call.

The statement is certainly prejudicial. We are troubled by the fact that the trial court, before finally overruling Franco’s objection, asked the State: “I assume that Byron Johnson is going to testify?” The State said yes and he did testify, but he never testified that the house in question was a “crack house.” However, it is clear from the record the “crack house” statement was neither unanticipated nor a surprise to Franco. Consequently, though we view the admission of the statement with considerable disfavor, we cannot say that the trial court abused its “very substantial discretion in balancing probative value on the one hand and unfair prejudice on the other....” See Menchaca v. State, 901 S.W.2d 640, 649 (Tex.App. — El Paso 1995, pet. ref d), quoting Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990). Accordingly, we overrule Points of Error Two and Three.

In his foui’th and fifth points, Franco argues that the trial court erred when it admitted expert testimony, over objection, concerning blood spatter analysis without either conducting a hearing outside the presence of the jury or requiring the State to show by clear and convincing evidence that the blood spatter evidence was relevant and reliable under the standards announced in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). The State concedes that the trial court erred. The State argues that the error is harmless and points out that blood spatter evidence has been admissible as scientific evidence since 1987.

The “threshold determination” for a trial court to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Kelly, 824 S.W.2d at 572; Duckett v. State, 797 S.W.2d 906, 910 (Tex.Crim. App.1990). Thus, the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. Indeed, we understand Franco’s substantive complaint to be that the evidence was not reliable or relevant and, further, controverted Franco’s claim that Carl was the aggressor because the expert, Police Officer Pippins “painted a scenario of that [Franco] was the aggressor, and the movement of the deceased and [Franco] during the fray was away from the exit rather than toward the exit....”

To find that scientific evidence is rehable, it must be shown that the evidence has as its basis “sound scientific methodology.” Forte v. State, 935 S.W.2d 172, 176 (Tex.App. — Fort Worth 1996, pet. refd). This assessment of reliability forces the trial courts to “weed out” testimony pertaining to “junk science,” or otherwise inadequately tested scientific theories. Forte, 935 S.W.2d at 176. To do so, the testimony must meet the proper tests for scientific reliability, and the testimony must reflect information outside the general knowledge of lay persons. See Schütz v. State, 957 S.W.2d 52, 70 (Tex.Crim.App. 1997).

We can envision circumstances where the trier of fact may be quite properly aided by some evidence of blood splatter analysis, but we are dubious of the claim in this record that blood spatter evidence can “determine the aftermath of a violent incident of bloodshed and to try to determine the location of individuals before, during and after bloodshed and to try to determine, perhaps, a sequence of events that occurred based upon the bloodstain evidence available at the scene.” Such evidence, the testimony of a police officer potentially qualified to testify as an expert on blood splatter, would likely carry exceptional weight and an aura of reliability which could lead the jury to conclusions based upon more on speculation than scientific explanation. Moreover, whatever its degree of reliability and relevance, the focus is very narrow and limited. See generally Ex parte Mowbray, 943 S.W.2d 461, 462 (Tex.Crim.App.1996).

Even if blood spatter pattern analysis is scientifically valid, it may be unhelpful for some other reason. The evidence may be unhelpful, even though reliable, if its probative value is substantially outweighed by, e.g., the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or the presentation of cumulative evidence. See Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App.1994); see also Tex.R.CRIM.Evid. 403. In this case, a substantial part of the officer’s testimony as an expert was intended to contradict Franco’s self-defense. In particular, the officer’s opinion that there was “no evidence to show that [Carl] was ever an aggressor in any way,” is well wide of the possibly permissible focus of such evidence. While the statement is literally true, it is dangerously misleading. We find nothing in the blood spatter analysis from which any “expert” could draw an opinion as to who was (or who was not) the initial aggressor, an opinion repeatedly made and emphasized in this case.

We review this error according to Texas Rule of Appellate Procedure 44.2(b) because an error in the admission of evidence affects a substantial right. Tex. R.CRIm.Evid. 103(a); Garza v. State, 963 S.W.2d 926 (Tex.App. — San Antonio 1998, no pet.). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Upon a finding that a substantial right has been violated, we have adopted the analysis laid out by the San Antonio Court of Appeals:

[W]e conclude that we will apply rule 44.2(b) to an error in the admission of evidence by first asking: what substantial rights of the defendant are implicated by the admission of the erroneous evidence? Then, for each right implicated by the error, we will ask: did the error affect the jury’s verdict? To answer this question, we will consider: (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) the probable collateral consequences of the error, (5) how much weight jurors probably placed on the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. If after considering these factors, the answer to the question is ‘no,’ we will deem the error harmless and conclude that the substantial rights of the defendant were not affected. If the answer to the question is ‘yes,’ we will consider the same factors to determine the extent the error affected the jury’s verdict. If the error only slightly affected the verdict, we will deem the error harmless. But if the error affected the jury’s verdict more than slightly, we will conclude that the substantial rights of the defendant were adversely affected. With this result, we will deem the error harmful, and reverse and remand.

Garza, 963 S.W.2d at 930.

In this case, the State introduced the evidence and it was obviously the source of the error. Officer Pippins testified as an unqualified expert and his testimony went well beyond a limited description of the injuries suffered and their location with respect to other physical evidence to an unfounded declaration that there was no evidence that the victim had initiated the events. This error was emphasized by the State during the officer’s questioning and mentioned at least once during the State’s closing arguments. The probable collateral consequences of the error is to place an improper limitation on the right of self-defense. See Ramirez v. State, 873 S.W.2d 757 (Tex.App. — El Paso 1994, pet. refd). We do note, however, that a self-defense instruction was given to the jury in this case and they rejected that issue.

While it is impossible to say with certainty, the officer’s testimony would likely have been given considerable weight by the jurors. However, whatever weight that they might have given his testimony, it is abundantly clear from the record, that the jury did not need an expert’s opinion to draw their own conclusions and reject Franco’s self-defense claim. The documentary evidence — the photographs of the blood spattered walls and ceiling of the kitchen and the victim’s wounds — rebuts the self defensive claim with self-evident clarity. Plus, when coupled with the facts that: Franco took Carl’s wallet, and that the physical evidence strongly suggests that as Carl lay dead or dying, he was rolled over and his wallet was ripped from his pants; that Franco took Carl’s pickup; and that the phones in the house were ripped from the wall, the jury could have completely discounted Officer Pippin’s testimony and still rejected Franco’s self-defense claim.

The State has conceded the error, and that concession weighs favorably in finding that the State would not be encouraged to repeat the error if we hold the error harmless. We do, however, express the caveat that the error here is not simply failing to qualify the witness as an expert, it is the unreliability and misleading nature of the unqualified expert’s testimony.

While we conclude that the substantial rights of the defendant were affected, we find that the error did not affect the verdict and that the substantial rights of the defendant were not adversely affected. Accordingly, we overrule Points of Error Four and Five.

In his sixth and seventh points of error, Franco argues that the trial court erred by (1) admitting Franco’s clothing as evidence because the clothing was seized pursuant to an unlawful arrest, and (2) limiting defense counsel’s cross-examinations concerning whether Franco was arrested prior to the seizure of the clothes. According to the testimony of the police officers and the recorded statement of Franco, Franco was not placed under arrest at the time the clothing was seized. Rather the evidence shows that the owners of the house gave the police permission to enter and that Franco agreed to accompany the officer to the station for questioning. Further, even Franco’s recorded statement evidenced that it was Franco who asked the police officers to retrieve his clothes, which were still covered in blood. Thus, the police obtained Franco’s clothes not only with his consent but at his request. Only at the suppression hearing did Franco assert either that he thought he was under arrest at the house where he was found or that he did not give the police officers consent to take his clothes.

We- find Franco’s sixth and seventh points of error lack merit. If believed, the testimony of the officers was clear, and uncontroverted that the homeowner voluntarily consented to the officers’ entry. We will not revisit the trial court’s determination that the homeowner gave the officers consent as this finding was based solely on the credibility and weight of the witnesses’ testimony. See Jones v. State, 944 S.W.2d 642, 650 (Tex. Crim.App.1996), cert denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). We will, however, address whether the consent given by the homeowner was effective against Franco. In Texas, a person with common authority over property may consent to a search of the property. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50 (1974); Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). “Common authority” is the mutual use of the property by persons generally having joint access or control for most purposes. Patrick, 906 S.W.2d at 490, citing Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148, 156 (1990). It has been said that “any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, 39 L.Ed.2d at 250 n. 7; see also Powers v. State, 459 S.W.2d 847, 849 (Tex.Crim.App,1970)(where two persons have equal rights to the use or occupancy of the premises, either may consent to a search, and the evidence thus disclosed can be used against either). Neither Franco nor the State disputes that the homeowner had common authority over the house where Franco was found. We find that the consent given by the homeowner was effective against Franco and thus Franco’s clothing was legally seized pursuant to a consensual search. See United States v. Morning, 64 F.3d 531, 536-37 (9th Cir.1995), cert. denied, 516 U.S. 1152, 116 S.Ct. 1030, 134 L.Ed.2d 108 (1996)(consent of one cotenant effective against both tenants even where other cotenant objects); see also Willis v. State, 518 S.W.2d 247, 249 (Tex.Crim.App.1975) (evidence obtained in apartment jointly occupied by defendant and girlfriend not subject to suppression where girlfriend consented to search). Franco’s arguments that the clothes were improperly admitted because they were seized pursuant to an unlawful arrest is without merit. We overrule Franco’s sixth and seventh issues on appeal.

Having overruled all of Franco’s remaining issues on appeal, we affirm the judgment of the trial court.