Leonard Keith Dawson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 19, 2021
• Docket: 01-19-00731-CR
• Status: Published

Opinion

Opinion issued August 19, 2021

In The Court of Appeals For The First District of Texas ———————————— NO. 01-19-00731-CR ——————————— LEONARD KEITH DAWSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1434670

MEMORANDUM OPINION

A jury found appellant Leonard Keith Dawson (“Dawson”) guilty of murder

and assessed his punishment at seventy-five years’ confinement and a $5,000 fine.

In two issues, Dawson argues the trial court abused its discretion by admitting into evidence (1) a photograph of Dawson holding a shotgun, and (2) statements made to

police about a prior robbery involving Dawson.

We affirm the trial court’s judgment.

Background

Julia Green (“Green”) died from a gunshot wound to the back of her neck.

The bullet, which was fired from a .38 revolver, entered below and behind her right

ear, traveled downward, and exited the left side of her throat. Police found a .38

revolver laying on the bedroom floor near her body. The trajectory of the bullet

through Green’s neck and a bullet hole in the bedroom mattress suggest Green was

face down on the mattress when someone shot her in the back of the neck.

Green’s live-in boyfriend, Dawson, was arrested and charged with her murder.

Although Dawson told the police and other witnesses at the scene that Green shot

herself after he accused her of cheating on him, he later admitted that his suicide

story was a lie and he testified to a completely different version of events at trial.

A. Testimony and Evidence During the Guilt-Phase

Dawson, testifying in his own defense, testified that Green was on her knees

praying in their bedroom. As she was praying, Dawson picked up a .38 revolver that

he kept under his pillow for protection, cocked the hammer, and started twirling the

loaded handgun around his finger. He testified he lost control of the gun and it “went

off” while he was trying to catch it, striking Green in the neck. In an earlier statement

2 to police, Dawson stated he had been playing with the gun earlier the same day

because he “just never really had like a gun” and he wanted to know how it worked.

On cross-examination, the State asked Dawson about his familiarity with

firearms. When asked about his earlier statement to police that he had been playing

with the .38 revolver because it was the first gun he owned, and he did not know

how it worked, Dawson admitted that his earlier statement was a lie. He testified

that before purchasing the .38 revolver, he owned a .22 rifle. Although police also

found shotgun shells in his bedroom, Dawson denied ever owning a shotgun. He

testified he kept shotgun shells in his bedroom because he “[j]ust wanted them to be

there.”

The State then moved to admit State’s Exhibit 98, a photograph of Dawson

holding a shotgun. The defense objected and argued that the photograph was

irrelevant in part because Green was shot with a handgun, not a shotgun, and the

photograph was more prejudicial than probative in violation of Texas Rule of

Evidence 403. The State argued the photograph was relevant to show Dawson’s

“knowledge of how guns work and what he testified to are what he said in his

statement; and what he’s just testified to about this being an accident has opened up

the door and made his knowledge of guns now relevant.” The State also asserted

that the photograph was relevant under Texas Rule of Evidence 404(b) to show “lack

of mistake, which [Dawson] just testified and opened the door.” The trial court

3 overruled the objections and admitted the photograph. When questioned about the

photograph, Dawson testified that the shotgun depicted in the photograph belonged

to his friend. Although he denied ever owning a shotgun, Dawson admitted that he

liked the idea of a shotgun because it would scare people away.

The State then called Edwin Earl Green, Jr., Green’s brother, as a rebuttal

witness. Edwin Green testified he had served in the military for six years and had

familiarity with several types of firearms. According to Edwin Green, Dawson had

a “[b]ad habit of showing weapons.” He testified he had seen Dawson on different

occasions with a .38 revolver and a Mossberg 88, a shotgun Dawson and Green

bought before Green’s death. According to Edwin Green, Dawson was “holding

[the shotgun] in front of me, addressing me to not come into his home.”

The jury rejected Dawson’s explanation for the shooting and convicted him

of murder.

B. Testimony and Evidence During the Punishment-Phase

During the punishment phase of Dawson’s trial, the State introduced evidence

of several prior extraneous bad acts by Dawson, including an armed robbery of a gas

station and two misdemeanor convictions for possession of marijuana and burglary

of a motor vehicle. The State also proved Dawson had sexually assaulted two

women, fired a shotgun in an apartment complex, and assaulted the security officer

who detained him after he fired the shotgun.

4 In connection with Dawson’s prior robbery of a gas station, Muhammad

Imran (“Imran”) testified he had been robbed two or three times at different gas

stations where he worked over a period of more than ten years, and he did not have

a specific memory of the aggravated robbery in question. He did not identify

Dawson as the robber. Imran testified that the standard protocol after an armed

robbery required him to call his boss and his boss would tell him to call the police.

Imran, however, could not recall whether he followed that protocol after the robbery

involving Dawson.

Despite Imran’s poor recollection, the State proved the offense through the

testimony of the police officer who investigated the gas station robbery, and a DNA

test from a belt the perpetrator used to tie up Imran during the robbery. The trial

court overruled Dawson’s hearsay objection and allowed Officer Leonard Gonzales

(“Officer Gonzalez”) to testify as to statements Imran made to him when he arrived

at the scene.

Officer Gonzales testified he was dispatched to a gas station robbery in

October 2013. When he arrived at the gas station, he spoke with the clerk, Imran,

who appeared to be upset and shaken and claimed to feel sick to his stomach from

the incident. Officer Gonzales testified that he asked Imran about the robbery and

Imran gave his statement in a narrative format. Officer Gonzales testified that Imran

told him he had been robbed at gunpoint while working at the gas station. A man,

5 whom Imran described to be about “five-foot five, dark skin, 150 pounds, and

wearing a black hoodie,” walked into the gas station, pointed a handgun at Imran

and told him “Let’s go.” He made Imran get the money out of the register and give

it to him. The robber then walked Imran to the restroom, tied his hands with a cloth

belt and told him to wait in the restroom for ten minutes before coming out or else

he would kill him. Imran told Officer Gonzales that he waited five minutes, but

when he walked out of the restroom, he noticed the robber was still in the store. A

few minutes later, Imran left the bathroom, noticed the robber was gone, and called

the police.

Officer Gonzales testified that he spoke with Imran for about five minutes and

that although Imran was visibly shaken the entire time, he began to calm down

towards the end of their conversation. Officer Gonzales testified he collected the

cloth belt the robber used to tie up Imran. Another witness testified that Dawson

could not be excluded as a major contributor to a DNA sample taken from the belt.

The jury assessed punishment at seventy-five years’ confinement and a $5,000 fine.

Admission of Evidence

In two issues, Dawson argues the trial court abused its discretion by admitting

into evidence (1) the photograph of Dawson holding a shotgun, and (2) the

statements Iman made to Officer Gonzalez.

6 A. Standard of Review and Applicable Law

We review a trial judge’s decision to admit or exclude evidence under an

abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim.

App. 2016); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial

judge abuses her discretion when her decision falls outside the zone of reasonable

disagreement. Henley, 493 S.W.3d at 83; see also Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008) (stating trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree”).

Generally, the erroneous admission of evidence constitutes non-constitutional

error, subject to a harm analysis requiring reversal only if it affects the substantial

rights of the accused. See TEX. R. APP. P. 44.2(b); Gonzalez v. State, 544 S.W.3d

363, 373 (Tex. Crim. App. 2018). A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict. See

id.; see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Conversely, an error does

not affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim.

App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998)).

7 B. Admissibility of Photograph

In his first issue, Dawson argues the trial court abused its discretion by

admitting into evidence a photograph of him shirtless holding a shotgun because the

photograph is irrelevant, and the photograph’s probative value is outweighed by the

danger of unfair prejudice. See TEX. R. EVID. 401, 403. According to Dawson, the

photograph was inflammatory, and it might have been improperly considered by the

jury to support the State’s theory that Dawson was dangerous and aggressive.

Assuming without deciding that the trial court abused its discretion by

admitting into evidence a photograph of Dawson holding a shotgun, we conclude

that any error was harmless because the same or similar evidence was admitted

without objection through the testimony of Edwin Green. “It is well established that

the improper admission of evidence does not constitute reversible error if the same

facts are shown by other evidence which is not challenged.” Crocker v. State, 573

S.W.2d 190, 201 (Tex. Crim. App. 1978) (declining to consider admissibility of

psychiatrist’s opinion after psychologist gave similar opinion without objection); see

also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error in the

admission of evidence is cured where the same evidence comes in elsewhere without

objection.”).

Edwin Green testified that Dawson had a “[b]ad habit of showing weapons”

and that he had seen Dawson carrying a firearm more than once. He testified he saw

8 Dawson carrying a .38 revolver and that Dawson and Green had also recently bought

a Mossberg 88 shotgun. Edwin Green testified that Dawson held the shotgun in front

of him warning him to stay out of his home. See Ford v. State, 919 S.W.2d 107,

117–18 (Tex. Crim. App. 1996) (holding defendant waived error with respect to

admission of photograph of him wearing dark coat because same information was

admitted in another form without objection). This evidence was introduced without

objection from Dawson, and therefore, evidence of Dawson’s use and ownership of

a shotgun was properly before the jury.

We overrule Dawson’s first issue.

C. Admissibility of Convenience Store Clerk’s Statements to Police

Hearsay is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

TEX. R. EVID. 801(d). Hearsay is generally not admissible unless it fits into one of

the exceptions provided in the Texas Rules of Evidence or other rule or statute. Id.

802. The admissibility of an out-of-court statement under an applicable exception

is within the trial court’s discretion. Kesaria v. State, 148 S.W.3d 634, 641 (Tex.

App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006).

One such exception is the exited utterance exception.

An excited utterance is a “statement relating to a startling event or condition,

made while the declarant was under the stress of excitement that it caused.” TEX. R.

9 EVID. 803(2). The excited utterance exception stems from an assumption that the

declarant is not then capable of the kind of reflection that would enable him to

fabricate the information about which he speaks. Apolinar v. State, 155 S.W.3d 184,

186 (Tex. Crim. App. 2005). The trustworthiness of the statement is founded on the

fact that it is the event that speaks through the declarant and not the declarant relating

the event. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

The excited utterance exception applies only when (1) the statement results

from a startling occurrence that produces a state of nervous excitement in the

declarant and renders the utterance spontaneous, (2) the state of excitement

dominates the declarant’s mind such that there is no time or opportunity to contrive

or misrepresent, and (3) the statement relates to the circumstances of the occurrence

preceding it. See Kesaria, 148 S.W.3d at 642. “The critical determination regarding

the excited utterance exception is whether the declarant was still dominated by the

emotions, excitement, fear, or pain of the event or condition at the time he or she

made the statement.” Villanueva v. State, 576 S.W.3d 400, 406 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d); see also Tyler v. State, 167 S.W.3d 550, 555

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Although we can consider the

time lapse between the event and the statement and whether the statement was in

response to questioning, these factors are not necessarily dispositive. Villanueva,

576 S.W.3d at 406. The question before us is “whether the statement was made

10 under such circumstances as would reasonably show that it resulted from impulse

rather than reason and reflection.” Id.

Dawson postulates that a reasonable amount of time likely passed between the

gas station robbery and when Imran gave his statement to Officer Gonzalez, because

Imran had to call his boss prior to calling the police. Although Imran testified it was

standard protocol to call his boss after an armed robbery before calling the police,

there is no evidence that such call took place or how long the alleged conversation

may have lasted. On the contrary, Officer Gonzales testified that Imran told him he

called the police right after he left the restroom and noticed the robber was gone.

There is also no evidence of how long it took Officer Gonzales to arrive at the gas

station after Imran called the police.

We further note that the length of time between a startling occurrence and a

challenged statement does not control whether the statement is an excited utterance.

Thus, even if it had taken “a reasonable amount of time” for Officer Gonzales to

arrive at the gas station, as Dawson suggests, the passage of time alone would not

necessarily preclude the trial court from finding that Imran’s statements satisfied the

excited utterance exception. See Apolinar, 155 S.W.3d at 185 (statement made four

days after exciting event admissible as excited utterance).

Similarly, the fact that Imran’s statements were made in response to Officer

Gonzales’s questioning does not make the statements inadmissible under the excited

11 utterance exception; it is only a factor to consider. See Villanueva, 576 S.W.3d at

406. The key question is whether Imran was still dominated by the emotions,

excitement, fear, or pain of the event when he gave his statements to Officer

Gonzales. Officer Gonzales testified that Imran appeared nervous, upset, and visibly

shaken when he arrived at the store and Imran, who complained that he felt sick to

his stomach, remained in that agitated state during the five minutes he spoke to

Officer Gonzalez about the robbery. This evidence supports the trial court’s

determination that Imran was still dominated by the emotions, fear, or pain of the

armed robbery when he made his statements to Officer Gonzales.1 See Zuliani, 97

S.W.3d at 595; Villanueva, 576 S.W.3d at 406.

Under these circumstances, we conclude the trial court did not abuse its

discretion in admitting Imran’s statements to Officer Gonzalez under the excited

utterance exception. See Campos v. State, 186 S.W.3d 93, 99–100 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (holding complainant’s statements to police

officers, made forty-three minutes after robbery, were admissible under excited

utterance exception when statements were made in response to questioning and

officers testified that complainant was crying, upset, and frightened).

We overrule Dawson’s second issue.

1 Although Officer Gonzales testified Imran began to calm down towards the end of their conversation, he testified that Imran was still upset and shaken during the time he relayed the events to him. 12 Conclusion

Veronica Rivas-Molloy Justice

Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.

Do not publish. TEX. R. APP. PROC. 47.2(b).