Appeal Affirmed and Opinion Filed November 28, 2012.
In The (ourt of ppat jfittfj ttrict of txa at atta No. 05-i 1-01088-CR
COREY DEWAYNE GLADNY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F10-59543-J
MEMORANDUM OPINION
[3elhre Justices Moseley. Fillmore, and Myers Opinion By Justice Moseley
A jury found appellant Corey Dewayne Gladney guilty of murdering Aaron Alexander
and assessed punishment at forty-five years’ imprisonment. Gladney appeals. In his first issue,
he argues the trial court erred by allowing a witness to testify about an anonymous phone tip she
received. In his second and third issues he argues the trial court erred by refusing to allow him to
cross-examine the mother of the victim regarding the victim’s criminal history at the
guilt/innocence phase and at the punishment phase of the trial. The background of the case and
the evidence adduced at trial are well known to the parties; thus, we do not recite them here in
detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. We aflinn the trial court’s judgment.
Background There is evidence in the record that Alexander was sitting in his vehicle in the crowded
parking lot of a shopping center when Gladney approached his vehicle and fired a handgun into
it. Alexander attempted to drive his vehicle to safety but crashed into another car in the parking
lot Alexander then attempted to escape on foot but was shot several more times by Gladney in
front of many witnesses.
Gladney fled the scene in the vehicle of Sylvester Spicer. The State presented evidence
from Detective Mary Brady who, over Gladney’s objection, testified that she had received an
anonymous phone call claiming that Spicer had disposed of the handgun used in the murder
while he was selling his vehicle in Houston.
Hearsay In his first issue, Gladney argues that the trial court erred by admitting Brady’s hearsay
testimony concerning the contents of the anonymous phone call.
Assuming without deciding that the trial court erred by admitting Brady’s testimony
about the anonymous caller’s statements, such an error would be non-constitutional error; thus,
we must disregard it unless it affected an appellant’s “substantial rights.” flx. R. An. P.
44.2(b); see, ag., Dorado v. State, 843 S.W.2d 37,38 (Tex. Crim. App. 1992) (requiring a non-
constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under
article 38.072). An error affects a substantial right “when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266,
271 (Ta. Crim. App. 1997). Thus, we affirm a criminal conviction despite non-constitutional
erroriiafterexaminingtherecordasawhole,weareleftwiththefairassurancethattheerror
—2— did not influence the jury or influenced the Jury only slightly. Schulz v. Stare. 63 S.W.3d 442,
444 (Thx, Crim. App. 200!) (citing Morales i. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
2000) and .fohnson 5’tit’ 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also 0 ‘iVeal v.
McAninch, 513 U.S. 432, 438 (1995) (error must be treated as harmful if “grave doubt” exists as
to whether it had a “substantial and injurious effect or intluence” upon the jury). We analyze the
whole record to determine if the trial court’s error had no effect or oniy a slight effect on the
jury’s decision. Schutz, 63 S.W.3d at 444. Our analysis goes beyond the fact that the jury’s
credibility determinations had an impact on its verdict, Id. at 445. We consider all the evidence,
the nature of the evidence supporting the verdict, and the character of the error and its
relationship to other evidence to determine if the error substantially affected an appellant’s
rights. Morales, 32 S.W.3d at 867.
In the present case, the evidence at issue concerned the location and possible means of
disposal of the handgun allegedly used to kill Alexander. Certainly, being unable to produce the
alleged murder weapon may create some doubt in the mind of the jury, and offering an
explanation for its inability to present the weapon at trial may have helped the State assuage that
doubt. Here, however, the other evidence showing (iladney’s guilt is overwhelming and renders
the State’s inability to produce the murder weapon trivial. Three separate witnesses identified
Gladney as the shooter. The testimony of one of these eye-witnesses was corroborated by a
video he was recording prior to and during the shooting. That same witness also identified
Gladney as the shooter from a surveillance tape recorded by a business located adjacent to the
crime scene.
Given the relative insignificance of the evidence about the anonymous phone call in
comparison to the weight of the properly admitted evidence that Gladney was the shooter, we
conclude that the complained-of hearsay evidence had no effect or only a slight effect on the jury’s decision. Because appellant’s substantial rights were not affected by any error the trial
court may have made by admitting Brady’s testimony about the anonymous phone call, we
overrule appellant’s first issue. See TEx. R. APP. P. 44.2.
Cross-Examination
In his second and third points of error, Gladney argues the trial court erred by not
allowing him to cross-examine Alexander’s mother, Antwonette Alexander Charles, regarding
Alexander’s criminal history during the guilt/innocence and punishment phases of the trial.
The State called Charles at the guilt/innocence phase of the trial. During cross examination, Gladney’s counsel asked three questions regarding Charles’s knowledge of the
shopping center where the shooting occurred and then asked to approach the bench, After an
off-the-record discussion, Gladney’s counsel passed the witness.
Following a finding of guilt, Charles was again called during the punishment phase of the
trial. After the State passed the witness, Gladney’s counsel again approached the bench for an
off-the-record conversation. Following this conversation he passed the witness.
At the end of the punishment phase of the trial, Gladney made an otTer of proof out of the
jury’s presence. Flis counsel put on the record that he had approached the bench and requested
that he he allowed to cross-examine the victim’s mother regarding a number of issues, including:
whether or not Alexander had drug money in his pockets at the time of the shooting, whether
Alexander was associating with other people who were drug dealers and might potentially have
been suspects, whether Alexander was a “convicted felon that was a drug dealer,” and whether or
not Alexander was dealing drugs at the time of the murder. The stated purpose of this offer was
to preserve a Sixth Amendment claim at the guilt/innocence phase of the trial and to prevent the
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Appeal Affirmed and Opinion Filed November 28, 2012.
In The (ourt of ppat jfittfj ttrict of txa at atta No. 05-i 1-01088-CR
COREY DEWAYNE GLADNY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F10-59543-J
MEMORANDUM OPINION
[3elhre Justices Moseley. Fillmore, and Myers Opinion By Justice Moseley
A jury found appellant Corey Dewayne Gladney guilty of murdering Aaron Alexander
and assessed punishment at forty-five years’ imprisonment. Gladney appeals. In his first issue,
he argues the trial court erred by allowing a witness to testify about an anonymous phone tip she
received. In his second and third issues he argues the trial court erred by refusing to allow him to
cross-examine the mother of the victim regarding the victim’s criminal history at the
guilt/innocence phase and at the punishment phase of the trial. The background of the case and
the evidence adduced at trial are well known to the parties; thus, we do not recite them here in
detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. We aflinn the trial court’s judgment.
Background There is evidence in the record that Alexander was sitting in his vehicle in the crowded
parking lot of a shopping center when Gladney approached his vehicle and fired a handgun into
it. Alexander attempted to drive his vehicle to safety but crashed into another car in the parking
lot Alexander then attempted to escape on foot but was shot several more times by Gladney in
front of many witnesses.
Gladney fled the scene in the vehicle of Sylvester Spicer. The State presented evidence
from Detective Mary Brady who, over Gladney’s objection, testified that she had received an
anonymous phone call claiming that Spicer had disposed of the handgun used in the murder
while he was selling his vehicle in Houston.
Hearsay In his first issue, Gladney argues that the trial court erred by admitting Brady’s hearsay
testimony concerning the contents of the anonymous phone call.
Assuming without deciding that the trial court erred by admitting Brady’s testimony
about the anonymous caller’s statements, such an error would be non-constitutional error; thus,
we must disregard it unless it affected an appellant’s “substantial rights.” flx. R. An. P.
44.2(b); see, ag., Dorado v. State, 843 S.W.2d 37,38 (Tex. Crim. App. 1992) (requiring a non-
constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under
article 38.072). An error affects a substantial right “when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266,
271 (Ta. Crim. App. 1997). Thus, we affirm a criminal conviction despite non-constitutional
erroriiafterexaminingtherecordasawhole,weareleftwiththefairassurancethattheerror
—2— did not influence the jury or influenced the Jury only slightly. Schulz v. Stare. 63 S.W.3d 442,
444 (Thx, Crim. App. 200!) (citing Morales i. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
2000) and .fohnson 5’tit’ 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also 0 ‘iVeal v.
McAninch, 513 U.S. 432, 438 (1995) (error must be treated as harmful if “grave doubt” exists as
to whether it had a “substantial and injurious effect or intluence” upon the jury). We analyze the
whole record to determine if the trial court’s error had no effect or oniy a slight effect on the
jury’s decision. Schutz, 63 S.W.3d at 444. Our analysis goes beyond the fact that the jury’s
credibility determinations had an impact on its verdict, Id. at 445. We consider all the evidence,
the nature of the evidence supporting the verdict, and the character of the error and its
relationship to other evidence to determine if the error substantially affected an appellant’s
rights. Morales, 32 S.W.3d at 867.
In the present case, the evidence at issue concerned the location and possible means of
disposal of the handgun allegedly used to kill Alexander. Certainly, being unable to produce the
alleged murder weapon may create some doubt in the mind of the jury, and offering an
explanation for its inability to present the weapon at trial may have helped the State assuage that
doubt. Here, however, the other evidence showing (iladney’s guilt is overwhelming and renders
the State’s inability to produce the murder weapon trivial. Three separate witnesses identified
Gladney as the shooter. The testimony of one of these eye-witnesses was corroborated by a
video he was recording prior to and during the shooting. That same witness also identified
Gladney as the shooter from a surveillance tape recorded by a business located adjacent to the
crime scene.
Given the relative insignificance of the evidence about the anonymous phone call in
comparison to the weight of the properly admitted evidence that Gladney was the shooter, we
conclude that the complained-of hearsay evidence had no effect or only a slight effect on the jury’s decision. Because appellant’s substantial rights were not affected by any error the trial
court may have made by admitting Brady’s testimony about the anonymous phone call, we
overrule appellant’s first issue. See TEx. R. APP. P. 44.2.
Cross-Examination
In his second and third points of error, Gladney argues the trial court erred by not
allowing him to cross-examine Alexander’s mother, Antwonette Alexander Charles, regarding
Alexander’s criminal history during the guilt/innocence and punishment phases of the trial.
The State called Charles at the guilt/innocence phase of the trial. During cross examination, Gladney’s counsel asked three questions regarding Charles’s knowledge of the
shopping center where the shooting occurred and then asked to approach the bench, After an
off-the-record discussion, Gladney’s counsel passed the witness.
Following a finding of guilt, Charles was again called during the punishment phase of the
trial. After the State passed the witness, Gladney’s counsel again approached the bench for an
off-the-record conversation. Following this conversation he passed the witness.
At the end of the punishment phase of the trial, Gladney made an otTer of proof out of the
jury’s presence. Flis counsel put on the record that he had approached the bench and requested
that he he allowed to cross-examine the victim’s mother regarding a number of issues, including:
whether or not Alexander had drug money in his pockets at the time of the shooting, whether
Alexander was associating with other people who were drug dealers and might potentially have
been suspects, whether Alexander was a “convicted felon that was a drug dealer,” and whether or
not Alexander was dealing drugs at the time of the murder. The stated purpose of this offer was
to preserve a Sixth Amendment claim at the guilt/innocence phase of the trial and to prevent the
State from presenting a false impression of the victim’s character at the punishment phase. Regarding his second issue—his complaint about limited cross-examination during
guilt/innocence—Giadney has preserved nothing for our review. The Texas Rules of Appellate
Procedure require that in order to preserve error, an offer of proof must be made before the
reading of the jury charge. TEx. R. App. p. 33.1(a). Gladney did not make the otThr of proof
until the end of the punishment phase of the trial, well after the jury charge was read for the
guilt/innocence phase. Because Gladney’s offer of proof was not made in a timely fashion, he
has preserved nothing for our review. See it As such, we overrule Gladney’s second issue.
In his third issue, Gladney argues the trial court erred by refusing to allow him to cross-
examine Charles regarding Alexander’s criminal history during the punishment phase of the trial.
He argues that when Alexander’s mother testified that he had a — heart and was beloved by his family she “opened the door” for Gladney to present evidence that he was not law abiding.
The trial court has great latitude “to impose reasonable limits on cross-examination based
upon concerns about, among other things, harassment, prejudice, confusion of issues, and the
witness’s safety.” Virts v. State, 739 S.W.2d 25. 28 (Tex. Crim. App. 1987). We review a trial
court’s ruling on the admissibility of evidence under an abuse of discretion standard.
Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g). As long as the thai court’s ruling was at least within the zone of reasonable disagreement, the appellate
court will not intercede. It at 391; see Mitchell v. State, 931 S.W.2d 950,953 (Tex. Crim. App.
1996) (noting standard of review on admissibility of evidence at punishment phase is abuse of
discretion).
In a non-capital felony trial, evidence is admissible during the punishment phase if the
court deems it relevant to sentencing. Hayden v. State, 2% S.W.3d 549, 552 (Tex. Crim. App.
2009). Evidence is relevant during the punishment phase if it will help the factfinder decide the
appropriate sentence for a particular defendant given the facts of the case. See id.; Rogers v.
—5- State, 991 S.W.2d 263. 265 (Tex. Crim. App. 1999). Victim character evidence is admissible
during the punishment phase if the fhctfinder “may rationally attribute the evidence to the
accused’s personal responsibility and moral culpability.” Hayden. 296 S.W.3d at 552 (internal
quotation marks omitted). However, evidence that is useful only to draw a comparison between
the victim and other members of society based on the victim’s worth “should usually be
cxcluded under rule 403.” Id.; Macley v. State, 983 S.W.2d 249, 262 (Ta. Crim. App. 1998).
Evidence that Alexander was a drug dealer would therefore be irrelevant and inadmissible if
offered to show that his lifb was less valuable than other members of society.
However, evidence that is otherwise inadmissible may become admissible when a party
opens the door to such evidence. See Renteria i’. State, 206 S.W.3d 689, 697—98 (Tex. Crim.
App. 2006); Griffin v. State. 787 S.W.2d 63.67 (Tex. Crim. App. 1990). A party opens the door
by leaving a false impression with the jury that invites the other side to respond. Daggett v.
State. 187 S.W.3d 444, 452 (Ta. Crim. App. 2005). But even if a party opens the door to
rebuttal evidence, the trial judge still has the discretion to exclude the evidence under Rule 403.
See Wheeler v. State. 67 S.W.3d 879, 886 (Ta. Crim. App.: 2002); Martinez v. State, 17 S.W.3d
677, 687 (Ta. Crim. App. 2000). Courts generally prohibit a party from using extrinsic
evidence to impeach a witness on a collateral issue. Daggett, 187 S.W.3d at 454 n.24. An issue
is collateral if, beyond its impeachment value, a party would not “be entitled to prove it as a part
of his case tending to establish his plea.” Bates v. State, 587 S.W.2d 121, 141—42 (Ta. Crim.
App. 1979) (opinion on reh’g) (internal quotations omitted). Unless the witness’s testimony
created a false impression that is “directly relevant to the offense charged,” allowing a party to
delve into the issue beyond the limits of cross-examination wastes time and confuses the issues.
Hayden, 2% S.W.3d at SM; Daggett, 187 S.W.3d at 454 n.24; Bates, 587 S.W.2d at 142.
-6- 1-lere. the trial court was well within its discretion to limit cross-examin ation of Charles. Alexander’s status as a drug dealer was a collateral issue it was not relevan t to the jury’s assessment of the appropriate sentence to impose on Gladney. Likewise. Alexan der’s status was not directly relevant to the charged crime, murder. Inasmuch as it was relevan t, it would only be relevant for the impermissible purpose of comparing the victim’s worth to that of other members of society. Allowing Gladney to impeach the victim’s character with extrins ic evidence would waste time and confuse the issue by focusing the jury’s attention on the victim ’s character rather than the defendant’s personal responsibility and moral culpability. Thus, it was within the trial judge’s discretion to exclude the evidence under Rule 403. See hayden , 296 S.W.3d at 554—55. Therefore, we overrule Gladney’s third issue.
Based on our disposition of Gladney’s three issues, we affirm the judgm ent of the trial court.
Do Not Publish TEX. R. App. P. 47 11 l088F.U05
—7— øitrt nf Apprata .fiftI Jitrict iif t!cxw at a1Ia 1
JUDGMENT
No. 05-11-01088-CR Appeal from the Criminal District Court No. 3 of Dallas County, Texas (Trial Court GLA1)NEY, COREY DEWAYNE, No. F 10-59543-i). Appellant Opinion delivered by Justices Moseley. V. Fillmore, and Myers. THE STATE OF TEXAS, Appellee
B’ised on the Couit’s opinion of this datc the judgment octhe trial couris AFFiRMED
Judgrncnt entercd Novembci 28 2012 / 7
J J15TICE