8S0-/5
IN THE COURT OF CRIMINAL APPEALS
*Oral Argument Demanded*
ORIGINAL NO.: PD-0850-15
REGFilVEE
Johnny Calvin Scott/ GCURT OF Ckim.APPEALS Petitioner
OCT 02 2015
THE STATE OF TEXAS
From the 396th District Court of Tarrant County/ Texas Trial Court No.: 13591S4R Trial Court Judge: Gallangher Appealed in the 2nd Court of Appeals/ Forth Worth Appeal No.: 02-14-00183-CR
PETITION FOR DISCRETIONARY REVIEW
FILED IN
COURT OF CRIMINAL APPEALS
OCT 02 2:3
Abel Acosta, Clerk
Note: Submitted By: *Petitioner has no access Johnny Calvin Scott/ to trial transcripts/ Pro Per reporter's/ or clerk's Bill Clements Unit records. Amarillo/ Texas 79107-9606
TABLE OF CONTENTS
INDEX OF AUTHORITIES... i STATEMENT REGARDING ORAL ARGUMENT... 1 STATEMENT OF THE CASE... 1 STATEMENT OF PROCEDURAL HISTORY..- 1 GROUNDS FOR REVIEW... 1
ARGUMENT 2 Ground #1: Invalid/Defective Indictment... 2 Ground #2: Trial Court Refused to Suppress the Detective's Unsworn Statement's Made During Interrogation— 3 Ground #3: Trial Court Erred in Refusing to Give Jury Cnarge/ Instruction on Self-Defense— 4
Ground #4: Trial Court Erred in Refusing to Give Jury Charge/ Instruction of Lesser Included Offense of Murder or MansldU.... 6
Ground #5: Trial Court Erred in Refusing to Give Jury Charge/ Instruction on not to Consider Comments of Detectives in ., Recorded Interrogations of Appellant as Evidence— 3 Ground #6: Trial Counsel was Ineffective by not Asking the Court/ Judge for a Jury Charge/Instruction of a Lesser Included Offense of Murder or Manslaughter — 8 ."••:. Ground #7: Trial Counsel"was Ineffective by not Timely Asking for a Limiting Instruction When the Court Admitted the Published Video 8
PRAYER... 9 CERTIFICATE OF SERVICE 9
INDEX OF AUTHORITIES
Constitution. Statutes? and Rules
Texas Code of Criminal Procedure Article 37.09(1)... 6 Texas Penal Code §19.03(c)... 6 Cases
Almanza v. State, 686 S.W.2d ac 171... 5 Brect v. Abrahamson, 507 U.S. at 637, 113 S-Ct. 1710... 6 Bufkin v- State, 207 S.W.3d 779(Tex-Crim.App. 2006)... 4 Cornet v.. State, 417 S.W-3d 446... 5 Delgado v- State, 235 S-W-3d 244(Tex-Crim-App. 2007) t8 Flores v. State/ 215 S.W-3d 520(Tex.Crim.App. - Beaumont 200,7)... 4{) 1 Hammock v. State, 46 S-W.3d 889(Tex.Crim.App. 2001)... 8 Hicks v. Statfi, 860 S-W.2d 419(Tex-Crim.App. 1993)..- 2 Kimmelman v- Morrison, 447 U.S. 365... 8 Krajcovic v. State, 393 S.W.3d 282(Tex-Crim.App. 2013)... 4 Lyles v. State, 850 S.W.2d 497 (Tex.Crim.App. 1993)--. 4 Moore v- State, 969 S.W.2d 4... 6 Robertson v. Cain, 324 F.3d 297 (5th Cir- 2003)... 5 Sanchez v. State, 221 S-W-3d 769(Tex.App. - Corpus Christi 2007)... 2, 3 Sanchez v. State, 37B S.W-3d 772... 5 U.S. v- Hernandez, 476 F.3d 791... 7, 8
STATEMENT REGARDING ORAL ARGUMENT Petitioner feels that his argument should be presented orally to better correlate the issues presented in this Petition for Discretionary Review. Certain controversial issues and facts can easily be confusing and misleading due to not only the States recollection of evidence and facts, out the way they are argued by both sides of this action and Petitioner feels that an oral argument to this court will give a more in-depth understanding of tne issues in this Petition, especially issues #2 and 5.
STATEMENT OF THE CASE
Jonnny Calvin Scott, Jr., Petitioner was.indicted and tried for the offense of Capitol Murder in Tarrant County, Texas. Petitioner's trial began on April 28, 2014, he was convicted May 2, 2014 in the 396th District Court of Tarrant County by a guilty trial verdict, and was sentenced to Life without parole in T.D.C.J, on the same date The Petitioner filed a Notice of Appeal on the same date. The trial court judge was justice Gailangner. Petitioner filed a Motion for new trial on May 30, 2014, which was denied oy operation of law (J.N.O.V.) on August 13, 2014. Petitioner's appellate counsel William S- Harris then filed the Appellant's Brief on November, 2014 and on June 4, 2015 the 2nd Court of Appeals overruled and affirmed the trial court's judgement. On June 16, 2015 The Petitioner filed a Motion for Rehearing and Reconsideration - This motion was denied On Z>\a\\x "2_' ^0i£_. This Petition for Discretionary Review (without counsel or access to trial transcripts/reporter's/clerk's records) follows.
STATEMENT OF PROCEDURAL HISTORY On June 4, 2015 the 2nd Court of Appeals, Forth Worth handed down its Memoranum Opinion and Overruled and affirmed the trial court's judgement. THe Petitioner filed a Motion for Rehearing on June 16, 2015. The Petitioner's Motion was denied on 5ia1vi 3, , J&iS.
GROUNDS FOR REVIEW
Ground #1: Invalid/Defective Indictment Ground #2: Trial Court Refused to Suppress the Detective's Unsworn Statements During Interrogation.
Ground #3: Trial Court Erred in Refusing to Give Jury Charge/Instruction on Self-Defense-
Ground #4: Trial Court Erred in Refusing to Give Jury Charge/Instruction of Lesser Included Offense of Murder or Manslaughter.
1.
Ground #5: Trial Court Erred in Refusing to Give Jury Charge/Instruction on Not to Consider Comments of Detectives in Recorded Interrogations of Appellant as Evidence.
Ground #6: Trial Counsel was Ineffective by Not Asking the Court/Judge for a Jury Instruction of a Lesser Included Offense of Murder or Manslaughter.
Ground #7: Trial Counsel was ineffective by not Timely Asking for a Limiting Instruction wnen the Court Admitted the Published Video.
ARGUMENT
Ground #1: Invalid/Defective Indictment Petitioner asserts tnat his indictment was defective by not clearly stating the cause of death. The indictment was broad in claiming the cause of death (by asphyxiation or cut with an unknown blade) of the victim or stating that the cause of death was 'unknown'.
It is understood through the ruling in Sanchez v. State, 221 S.W.3d 769 (Tex.App. - Corpus Christi 2007) and its predecessor Hicks v State, 860 S.W-2d 419 (Tex.Crim.App. 1993), that "... in the case where the cause of death cannot be conclusively established,,it is not uncommon for the indictment to allege a primary cause of death and, in the alternative, to allege that the deatn was caused by a manner and means unknown to the grand jury-" Id. at 776. However, "When the indictnent alleges the cause of death in this manner, the State bears the burden of proving the "unknown" allegation"(emphasis added).
The two prong test in Hicks states that "The State carries tine burden in either of two ways: (1) if the trial testimony does not establish the cause of death, a prima facie showing is made that the cause of death, was unknown to the grand jury used due diligence in attempting to ascertain the cause of death." Hicks v State, 860 s.W.2d 419, 424 (emphasis added).
However, neither of these prongs were satisfied either through the trial testimony of the expert witness, or through a showing of due diligence by tne grand jury of finding a cause of death of the victim; let alone that the Petitioner was the one who killed or caused the death.of the victim.
Tn the first prong the Expert witness Dr. Roe stated that the "Strangu lation occured while Murreli (the victim) was alive.--" and that it "..-preceeded the neck slitting." Ruling out the strangulation as the cause of death, bunt at the same time stating that "...the neeK slitting would have caused death within thirty to forty seconds, which was too brief to create the petechiae observed on Murreli's body." This shows an uncertain cause of death through the
2.
expert witness testimony, even though she said that 'in her opinion' the cause of death was the neck slitting with asphyxiation being a "contributing factor", but, which one actually killed the victim? Let us not also forget that the victim allegedly ran from the Petitioner and oe allegedly stopped giving chase after realizing he was on probation. The State never proved that Petitionerchoked the victim nor killed her in this manner.
In the second prong, prong two members of the Grand Jury were brought in to describe what actions they took to determine the cause of death. One of them testified to not knowing or remembering if testimony or evidence was pre sented to them as to the investigation of the cause of death. The other testified the issue was brought up, but was not sure of the cause of death or the actions taken to find a cause of death. The expert witness herself dia not give an al ternate tneory or testify that the cause of death was unknown, this meant that the cause of death was established by the trial, testimony (even though it was still an opinionated unsure cause).
But the problem stili lies that theState did not provide sufficient evi dence to support all of their theories alleged in the indictment- Sanchez v. State, 221 S-W.3d 769 (Tex.App- - Corpus Christi 2007) at 776 ("... the State was required to prove that the Grand Jury used due diligence in attempting to ascertain the cause of death. However, the State offered no evidence on this subject. Therefore, there was insufficient evidence to support the theories of prosecution alleged in the... paragraphs of the indictment... Consequently, the trial court erred in authorizing the jury to convict appellant under those tneories of prosecution.)'(emphasis in=original). The appellant never stated or implied that he choked or was the one who choked the victim. Tnis was assumed by the State, but never proven. Ground #2: Trial Court Refused to Suppress the Detective's Unsworn Statements During Interrogation.
During pre-trial the Petitioner - through the actions of his counsel -
filed two documents entitled "Specific Objections to Portions Of Tape Recording 9-25-12" and "8-19-12", both of them identifying the objectionable parts of these interrogations. The only way of locating these items on the video were by the elapsed time counter values on the original recordings - that were not the same shown to the jury - which were changed after being heavily edited and after the parts objected to were listed. The jury never had a chance after being edited to see the original recordings and therefore, never known what was suposed to be redacted.
3.
The counter values were rendered useless after the heavy editing done by the State because after the editing, the counter values were reset and there fore, the parts asking to be redacted/suppressed by the Petitioner and his attorney were now moved to different locations on the elapsed time counter on each exhibit- These parts were in fact the unsworn statements and comments made by the detectives that were asked to be suppressed. By the trial court's abuse of discretion, this harmed tne Petitioner. "Generally, when a motion to suppress is overruled, a defendant need not object at trial to the same evi dence in order to preserve error for appellate review." Fiores v. State, 215 S.W. 3d 520, 531 (citing Sbarb v- State, 598 S.W.2d 842, 843 (Tex.Crim-App. 1979).
In Lyles v- State, 850 S.W.2d 497, 502 (Tex.Grim.^pp. i993) it states, "It was arbitrary and unreasonable for the court to admit unsworn testimony. Thus, it was an abuse of discretion." Once the Petitioner and his counsel
realized that the parts of the tapes that were supposed to be redacted were still there, they asked the court for a limiting instruction for the jury not to consider the statements of the detectives^evidence, but only of the state ments of the Petitioner- By the court not allowing a suppression of the comments of the detectives or the limiting instruction, the court abused it's discretion and harmed the Petitioner.
Ground #3: Trial Court Erred in Refusing to give Jury Charge/Instruction of Self _ Defense. Ground #^l Trial Court Erred in Refusing to.Give Jury Charge/Instruction on Not to Consider Comments of Detectives in Recorded Interrogations of Appellant as Evidence.
Because these two grounds are interrelated, they will, be argued together to show relativity. It is well understood that,a court reviews issues of the trial court refusing to give a jury instruction by viewing the evidence in the light most favorable to the defendant. Bufkin v. State, 207 S.W.3d 779, 78 2 (Tex. Cr im.App. 2006*).
A trial court must give a. requested instruction on every defensive issue raised by the evidence without regard to its source or strength, even if the evidence is contradicted or not credible. "A defense is supported (or raised) by the evidence if there is some evidence/ from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true." Krajcovic v. State, 393 S.W.3d 232, 286 (Tex.Crim.
4.
App. 2013)(emphasis added).
The State tries to conclude in their argument that the Petitioner's counsel's strategy was to characterize the self-defense statements during his second police interview as being involuntary made. This was not the case. Even though, arguendo, the State nor the Court are not the ones to test the credibility or weight of the evidence, the Petitioner was stili entitled to these instructions. " The absence of this type of instruction is generally harmful because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense. See, e.g. Johnson v. State, 271 S.W.3d 359, 368-69 (Tex.App. - Beaumont 2008 pet- Ref'd)(omission of self-de fense instruction harmful)— In general, when there is a single offense tried before a jury, it is impossible to determine how a jury would have weighed the credibility of the evidence on a defensive, issue, and, therefore, appellate courts have reversed convictions in order to permit the jury to decide whether it believes the defensive evidence." Cornet v- State, 41.7 S.W.3d 446, 451 (em phasis added).
By not granting these instructions to the jury, which were vital to the outcome of the trial, the Petitioner was harmed-" The court of appeals explained that tne standard for assessing "the actual degree of harm" requires an appel late court to consider the totality of the record, including "[AJ the entire jury charge, [b] tne state of evidence, including the contested issues and weight of probative evidence, [CJ the argument of counsel, and [D] any other relevant information revealed by the record of the trial as a whole."" Ailmanza v. State, 686 S.W.2d at 171. "... a review for sufficiency of the evi dence cannot substitute for harm analysis. See Sanchez v.,State, 3/6 S.W.3d at 772 ("The court of appeals erred in applying the Hicks rule to charge-error complaints when it was a sufficiency-of-the-evidence Rule")"(emphasis added).
See also Robertson v. Cain, 324 F.3d 297 (5th Cir. 2003) at 305 (...the Petitioner should prevail whenever, the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error. O'Neii v. McAninch, 513 U.S. 432, 436). id., supra at 309(...the erroneous jury instruction did not merely omit the requirement that the jury find specific intent to kill; it effectively told the jury that they could ignore Robertson's evience as it related to this point and convict Robertson of first degree murder without actually finding that Robertson had a specific intent to kill Hardy and Jones* Based on our consideration of the record, we seriously doubt that the
5.
jury actually evaluated the evidence with the purpose of determining whether Robertson had a specific intent to kill Hardy and Jones. Accordingly, we are left with the conclusion that the state trial court's erroneous jury instruction did have a "substantial and injurious effect or influence in determining the jury's verdict." Brect v. Abrahamson, 507 U.S. at 637, 113 S.Ct. 1710.). Ground #4: Trial Court Erred in Refusing to Give Jury Charge/Instruction of Lesser Included Offense of Murder or Manslaughter.
Per Texas Penal Code §19.03(c)(Capitol Murder), it states:
(c) If the jury... does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or any other lesser included offense."
The prosecutor during trial requested to the judge to give the jury an instruction on a lesser included offense. This, in turn,.was shot down by the judge, denying the Petitioner of a lesser included offense and not following statute. This harmed the Petitioner in more ways than one.
Moore v. State, 969 S.W.2d 4>* 8 states that "Any evidence that the defen dant is guilty only of the lesser included offense is sufficient to entitle the defendant to a jury charge on the lesser included offense." (emphasis added, citation omitted). It also stated that "It is not the court's function to determine the weight to be giver the evidence; rather it is the jury's duty under proper instruction, to determine whether the evidence is credible and supports the lesser included offenses." id. at 10 (emphasis added)-
"Capitol Murder is such a murder (in some subsections it must be an inten tional murder; in others it may be an intentional and knowning muder) with an additional element. Therefore murder is a lessor included offense of capitol murder under Code of Criminal Procedure Article 37.09(1)... if in a capitol murder case there is some evidence before the jury that would permit it to rationally find that a defendant committed the requisite of murder under Sec tion 19.02(a)(1), but that the additional element in Section 19.03 was not proved, then the defendant is entitled to a charge of the lesser included offense of murder.-. See Tex. Penal Code §19.03(c)." id. at 12. And also, "... if the actor intentionally and knowingly causes the deaths of two indivi duals during tne same criminal transaction, but one of the killings was justified under the law, tnen the person has committed only one murder. Therefore the murder could not be a capitol murder under Penal Code §19.03(a)(7)(A), because the actor did not "murder more than one person." The argument is well taken, and the terms of the statute compel us to accept it."(emphasis strongly added).
Most of the elements of the Petitioner's culpable mental state of whether he intentionally and/or knowingly killed both the victim and her unborn child were not proven and each element of the offense has to be proven under the statute. By denying the Petitioner the jury instruction of the lesser included offense, it forced the jury to find the Petitioner guilty of Capitol Murder. U-S. v. Hernandez, 476 F.3d 791, 798 "... to warrant a lesser included offense
instruction "the evidence attrial must be such that a jury could find the defendant guilty of the lesser included offense, yet acquit him of the greater." ...We review this step of the inquiry for abuse of discretion."
The court took it upon itself to weigh the evidence and determine that the Petitioner should not have a lesser included offense instruction and tied
the jury's hands as to the issue. The court is the one who compelled the jury's guilty verdict on Capitoi Murder. "The harm from denying a lessor offense in struction stems from potential to place the jury in the dilema of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer." Fiores v. State, 215 S.W.3d 520, 531 (Tex.Crim.App. - Beaumont 2007)(citing Masterson, i55 S-W.3d at 171). "Whether in any particular case a defendant's conduct can be snown to have cuased the death of an unborn child is a question of proof, not a question of the constitutionality of the statute." id. at 527 .
The court took it upon itself to determine that his actions, and not the actions of tne victim was the cause of the unborn child's death. Or rather yet, assuming his actions were the cause, they did not give him the lesser included offense instruction or self-defense instruction to at least determine one of
the murders as justified. "Under Kotteakos, the error is reversible "if one cannot say, with fair assurance,... that the judgement was not substantially swayed by the error." id. at 765, 66 s.Ct. 1239. That is, if the error itself had a"substantial influence" on the judgement, then it is not harmless... even under the more lenient standard of Kotteakos, the district courts refused to
instruct the jury on the lesser included offense— was noi. harmless." U-S. v. Hernandez, 47 6 F.3d 791, 801.
..,.,"Faced with a defendant who was unequivocally guilty of some possession crime, the jury had a choice between convicting Hernan dez with possession with intent to distribute or acquitting him. It is not possible to say with confidence tha the jury cnose the former option because the government met its burden... The jury may have decided that given the overwhelming evidence against Hernandez, it did not want to acquit him of that charge, and so chose the only other option available to it - conviction of in-
tent to distribute methanphetamine..- Eliminating the option of finding Hernandez guilty of simple possession from the jury's province, under the circumstances of this case, substantially in fluenced the verdict and was not harmless error. The error-of not giving the lesser included jury instruction... in this case was fatal to the conviction... and that conviction cannot stand."
.j, -id. at 802
Neither can this conviction of capitol murder against the Peitioner. Ground #6: Trial Counsel was Ineffective by not Asking the Court/Judge for a Jury Charge/Instruction of a Lesser Included Offense of Murder or Manslaughter.
Ground #7: Trial Counsel was.Ineffective by hot Timely Asking for a Limiting In struction When the Court Admitted the Published Video.
Petitioner's trial counsel, Larry M. Moore, failed to timely object to the recorded interrogations for the requested limiting instructions and failing to ask for a lesser including offense instruction which was asked for by the Pro secutor.
The Texas Court of Criminal Appeals has explained that a limiting instruc tion should oe first requested "when the evidence is admitted and then again at the final jury charge." HammocK v. State, 46 S.W.3d 889, 895 (Tex-Crim.App. 2001). The trial counsel only fulfilled the final jury charge portion of this require ment and abandoned the first part. Sven though the counter values were changed in the videotapes, it was the trial counsel's duty to know and state specific ally the parts of the videotapes which were being requested to be suppressed and omitted, not just naming the counter values. See Kimmelman v. Morrison, 477 U.S. 3$5, 375-76.
The negligence on thi trial counsels part concearning this matter hurt the Petitioner and caused the court not to accept the untimely-requested limiting instruction. "[l]f a defendant does not request a limiting instruction... at the time that the evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge." Delgado v. State, 235 S.W.3d 244/ 251 (Tex.Crim.App. 2007).
3y the trial counsel not asking, nor objecting to the denial to a lesser included offense instruction - which is guaranteed'by"the statute/code of §19.03 (c) - the trial counsel was ineffective in this respect and no rational thought of trial strategy can be shown to justify this. The fact that the Prosecutor had to asK for a lessor included offense instruction says.much about this fact. An instruction on a lessee included offense could have at least afforded the
Petitionera chance to be found guiity of one of many lesser included offenses
8.
of capitol murder, saving the Petitigner from a Life without Parole sentencing. This prejudiced the Petitioner.
PRAYER
Wherefore, upon the foregoing arguments, the Petitioner prays the Court GRANT tnis Petition and relief and reverse his conviction or grant any relief this court may deem necessary.
Respectfully Submitted,
Johngy'Calvi'n Scott, Ji
CERTIFICATE OF SERVICE
I, Johnny Calvin Scott, do hereby certify that the foregoing Petition for Discretionary Review was mailed by prison staff by me piaciiig the same in the BILL CLEMENTS UNIT prison mailbox system on September 28, 2015 U-S-P.S. First Class mail, postage pre-paid, addressed to:
Texas Court of Criminal Appeals P.O. Box 12306 Capitol Station Austin, Texas 78 711
9.
COURT OF APPEALS SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00183-CR
JOHNNY CALVIN SCOTT APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1359184R
MEMORANDUM OPINION1
I. Introduction
Appellant Johnny Calvin Scott appeals his conviction and life sentence for
capital murder in the death of his girlfriend Vanessa Murreli and of her unborn
child. In three issues, Scott argues that he was entitled to a self-defense
instruction; that the trial court improperly admitted hearsay statements made by
1See Tex. R. App. P. 47.4.
the homicide detectives during the police interrogation of Scott, which was video
recorded; and that he was entitled to a limiting instruction on the admission of the
video containing the complained-of statements. We will affirm.
II. Background
A stranger stumbled upon Murrell's body, slumped against the base of a
tree in a vacant lot with her neck slit. At the time of her death, Murreli was
approximately thirteen weeks pregnant, and her unborn child died in utero
without Murreli alive to sustain him.
On the day Murrell's body was found, officers arrested Scott in an
unrelated incident. Officer Paul Garcia and other officers were canvasing
neighborhood carwashes that attracted various criminal activity. As the officers
approached one carwash, Officer Garcia saw Scott cutting across an empty
private lot behind the carwash. Officer Garcia stopped Scott and asked to see a
form of identification; Scott responded that he did not have one. After Officer
Garcia again requested to see some identification, Scott "took off running."
Officer Garcia and other officers chased Scott, and they eventually found him
hiding in an abandoned house. Officer Garcia arrested Scott for trespassing on
the private lot and for evading arrest. Officers later discovered that Scott had
violated his parole and was the subject of outstanding warrants.
Officer Frederick Myers transported Scott to the police station. While in
the parking lot at the station, Officer Myers allowed Scott to use Officer Myers's
phone, and Scott called his sister. Something Scott's sister said agitated Scott, and he explained to Officer Myers that his sister had just accused him of killing
his girlfriend. At that moment, Detective Kyle Sullivan, who was already
investigating Murrell's death, arrived in the parking lot. After Officer Myers
related to Detective Sullivan what he had overheard, Scott was taken to an
interview room.
Detective Sullivan and Detective Jeremy Rhoden interviewed Scott. Scott
acknowledged having had an argument with Murreli the day before, but he
denied harming her. He said that after their argument, they parted ways and that
he had not seen her since then. During the interview, Detective Rhoden noticed
spots that looked like blood on Scott's jeans. Scott's jeans were submitted to the
Fort Worth Police Department crime lab for testing, and a senior forensic scientist
for that lab confirmed at trial that some of the blood spots contained both Scott's
and Murrell's DNA. Scott's DNA was also found under Murrell's nails.
After the interview, Detective Rhoden contacted Donald Halliburton, the
person with whom Scott and Murreli had been staying. Haliburton gave a
statement, detailing the fight between Murreli and Scott. Haliburton said that
after Murreli had left, he had overheard Scott saying that he was going to kill
Murreli. Haliburton remembered that Scott then left the house and did not return
until four or five the next morning. A friend of Haliburton's, who was at his house
the day before the murder, testified that Scott said that he planned to hurt
Murreli—to "cut her up."
After a week-long trial, the jury found Scott guilty of capital murder, and the
trial court sentenced him to life imprisonment. Scott then perfected this appeal.
III. Omission of Self-Defense Instruction Was Harmless
In the course of investigating Murrell's death, the detectives interviewed
Scott a second time. That interview was also recorded; in addition to the
evidence set forth above, the jury also viewed the video of the second interview.
During the second interview, Scott claimed that Murreli had brandished a box
cutter during the argument and that he had reacted by grabbing Murrell's arm
that held the box cutter and by twisting it back against her, cutting her on the left
side of her neck—the side that was, in fact, slit. Scott said that Murreli then fled
and that although he initially followed her to see if she was okay, he remembered
he was on probation and instead walked to Haliburton's house and went to sleep.
Later in the interview, Scott abandoned his self-defense story and again insisted
he had nothing to do with Murrell's death.
Detective Rhoden testified at trial that there was no evidence Murreli ran
after her neck had been slit. Based on the way the blood flowed from Murrell's
neck, Detective Rhoden concluded that her neck had been slit while she was
lying down.
The evidence also revealed that in addition to having her neck slit, Murreli
had also been strangled, as evidenced by the location, number, and pattern of
petechiae, or small dot hemorrhages, on her upper neck and face. Dr. Susan
Roe, the medical examiner who performed the autopsy on Murrell's body, testified that someone had strangled Murreli using broad pressure, consistent
with an arm, applied to the neck. Based on the nature of the petechiae, Dr. Roe
understood that the pressure on Murrell's neck had been applied for a "fair
amount of time" and not "just a moment." Dr. Roe also noted that the
strangulation occurred while Murreli was alive; otherwise, the dot hemorrhages
would have emerged in areas of lividity, the areas in which blood pools in a body
lacking a heartbeat. That observation in combination,with the fact that Murrell's
heart was still pumping when her neck was slit, as evidenced by the amount of
blood pumped from the cut, convinced Dr. Roe that the strangulation preceded
the neck slitting. Dr. Roe further testified that the neck slitting would have
caused death within thirty to forty seconds, which was too brief to create the
petechiae observed on Murrell's body. Dr. Roe identified the cause of death to
be the neck slitting with asphyxiation being "a contributing factor."
In his first issue, Scott argues that the trial court erred by denying his
requested jury instruction on self-defense. Scott contends that his brief
admission—that he had slit Murrell's neck as he had attempted to restrain her
arm after she had pulled out a box cutter and began slashing at him—is some
evidence to support including a self-defense instruction in the jury charge.
A. Standard of Review
A trial court must give a requested instruction on every defensive issue
raised by the evidence without regard to its source or strength, even if the
evidence is contradicted or not credible. Krajcovic v. State, 393 S.W.3d 282, 286
(Tex. Crim. App. 2013). A defense is supported (or raised) by the evidence if
there is some evidence, from any source, on each element of the defense that, if
believed by the jury, would support a rational inference that that element is true.
Id.
Our review of a purported jury-charge error is a two-step process. Kirsch
v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. If there was a timely objection, as in this case, the existence of jury-
charge error will be reversed if the error was "calculated to injure the rights of
[the] defendant," which means no more than that there must be some harm to the
accused from the error. See Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006);
Abdnorv. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see also Reeves v.
State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Wooten v. State, 400
S.W.3d 601, 606 (Tex. Crim. App. 2013). In other words, a properly preserved
error will require reversal unless the error is harmless. Almanza, 686 S.W.2d at
171. This analysis requires us to consider (1) the jury charge as a whole, (2) the
arguments of counsel, (3) the entirety of the evidence, and (4) other relevant
factors present in the record. Reeves, 420 S.W.3d at 816; see Almanza, 686
S.W.2dat171.
B. Analysis
Assuming that Scott's quickly-abandoned assertion that Murreli had
attacked him with a box cutter warranted a self-defense instruction and assuming
that the trial court erred by failing to give such an instruction, we analyze whether
Scott suffered some harm from the omission of a self-defense instruction in the
charge. Looking first to the jury charge as a whole and defense counsel's closing
argument, both reflect that the defense's strategy was to characterize Scott's
self-defense statements during his second police interview as involuntarily made.
Before trial, Scott moved to suppress the statements recorded in the second
interrogation on the ground that they were involuntarily made. One of the two
witnesses for the defense, Antoinette McGarrahan, a psychologist, extensively
testified for the "sole purpose," as expressed by defense counsel in closing
argument, of showing that Scott's limited cognitive abilities precluded a knowing
and voluntary waiver of his Miranda rights. The other defense witness testified
that Scott had been with her the night Murreli was killed. The jury charge
instructed that Scott's interrogation statements could not be considered unless
they were knowingly, intelligently, and voluntarily given.2 And in closing argument, defense counsel argued extensively that the jury should disregard
Scott's statement that he had forced Murrell's hand back so that the box-cutter
cut her neck, insisting that Scott had uttered this statement involuntarily because
2See Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966).
he lacked the intelligence to understand the Miranda warnings he had received
and because the interrogating detectives pressured him. Thus, reviewing the
jury charge and the arguments of counsel in our harm analysis, this is not a case
in which the jury was "without a vehicle by which to acquit a defendant who has
admitted to all the elements of the offense." Cornet v. State, 417 S.W.3d 446,
451 (Tex. Crim. App. 2013) (explaining harm generally associated with a denied
self-defense instruction); see, e.g., Beckstrand v. State, No. 02-12-00480-CR,
2015 WL 1544077, at *10 (Tex. App.—Fort Worth Apr. 2, 2015, no pet. h.) (mem.
op., not designated for publication) ("Because Appellant admitted striking Noah,
without the self-defense instruction, Appellant admitted the offense."). Instead,
this is a case in which trial counsel's request for a self-defense instruction
"appears to be an afterthought and does not appear to be the primary focus of
his defensive theory at trial." Cornet, 417 S.W.3d at 455. In fact, even had the
jury been instructed on self-defense, the defense itself had already discredited
Scott's self-defense story as involuntarily made and had secured an instruction
telling the jury to disregard all involuntary statements.
Looking at the entirety of the evidence, Scott's self-defense story was
undermined throughout the trial. The jury heard Scott abandon his self-defense
story almost immediately after telling it in the second interview. The other
defense witness—besides the psychologist—testified that Scott had been with
Murreli on the night she was killed, and other evidence demonstrated that a few
hours before Murreli was killed, Scott angrily told her that he was going to kill her and told others that he was going to "cut her up." There was no evidence of a
struggle, and there was no evidence that Murreli ran after having her neck slit.
Additionally, Scott's self-defense story did not fully explain Murrell's injuries,
particularly the strangulation. Although the evidence demonstrated that Murreli
had been strangled for what Dr. Roe said was a "fair amount of time" before
having her neck slit, Scott did not mention strangulation in his self-defense story.
Furthermore, in assessing other relevant factors in the record, we note that
the indictment and jury charge premised the capital murder charge on either
slitting or strangulation, so even had the jury been instructed on self-defense, it
would have been unable to conclude that Scott strangled Murreli in self-defense.
Having performed the harmless-error analysis mandated by Reeves,
Wooten, and Almanza, we conclude that any harm in denying Scott's request for
a self-defense instruction was harmless. See Reeves, 420 S.W.3d at 816;
Almanza, 686 S.W.2d at 171. We overrule Scott's first issue.
IV. Detectives' Statements During Interrogation Do Not Constitute Hearsay
In his second issue, Scott argues that the trial court abused its discretion
by refusing to suppress the unsworn statements that the detectives made during
the video-recorded interview of Scott. Scott contends that the unsworn
statements made by the detectives while they interviewed him constitute
hearsay.
10
We review the trial court's admission of the video of the interview
containing the complained-of statements under an abuse-of-discretion standard.
See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Kirk v. State,
199 S.W.3d 467, 478 (Tex. App—Fort Worth 2006, pet. refd). We will uphold
the admission so long as it falls within the zone of reasonable disagreement.
See Weatherred, 15 S.W.3d at 542; Kirk, 199 S.W.3d at 478.
Hearsay is a statement, other than one made by the declarant while
testifying at trial, offered to prove the truth of the matter asserted. Tex. R. Evid.
801(d). Statements by interrogating officers that seek to elicit or gauge a
defendant's response and are admitted as part of the recorded interrogation
generally are not offered to prove the truth of the matter asserted. See Kirk, 199
S.W.3d at 478-79; see also Wood v. State, No. 01-13-00845-CR, 2014 WL
5780273, at *5 (Tex. App.—Houston [1st Dist.] Nov. 6, 2014, pet. refd) (mem.
op., not designated for publication); Fincherv. State, No. 04-12-00489-CR, 2013
WL 5429928, at *2 (Tex. App.—San Antonio, Sep. 25, 2013, pet. refd) (mem.
op., not designated for publication); Humphrey v. State, No. 01-08-00820-CR,
2012 WL 4739925, at *2 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, no pet.)
(mem. op., not designated for publication). The relevance of statements by
interrogating officers hinges on the defendant's response rather than on the
statements' content. See Kirk, 199 S.W.3d at 478-79; see also Wood, 2014 WL
5780273, at *5; Fincher, 2013 WL 5429928, at *2. Humphrey, 2012 WL 4739925,
11
at *2. This is true even if the statements, like the ones challenged by Scott,
accuse the defendant of lying, express suspicion that the defendant was
involved, or misrepresent the evidence. See Kirk, 199 S.W.3d at 478-79; Wood,
2014 WL 5780273, at *5; Fincher, 2013 WL 5429928, at *2; Humphrey, 2012 WL
4739925, at *2.
Consistent with the general rule, the statements at issue in this case were
not admitted for their truth. For example, the detective's statement—"God
blessed me with catching the killer of Vanessa Murreli"—was not offered to prove
its theological content but as part of the context of Scott's interview. Nor were
the detectives' statements expressing suspicion that Scott was involved in
Murrell's death admitted to prove that the officers were, in fact, suspicious. The
statements invited Scott to respond and allowed the officers to assess his
honesty. Additionally, when the State questioned Detective Rhoden, it targeted
Scott's changing demeanor in his responses—he replied with more hesitance
and gave more disjointed responses—once he had abandoned the self-defense
story. Moreover, the detective's inaccurate statement implying that only Scott's
DNA was under Murrell's fingernails was designed to challenge Scott's version of
the events, and the jury even heard Detective Rhoden acknowledge during
cross-examination that the statement was inaccurate.
Because the complained-of statements are not hearsay, we hold that the
trial court did not abuse its discretion by denying Scott's request to suppress
them. See Kirk, 199 S.W.3d at 478-79; see also Wood, 2014 WL 5780273, at
12
*5; Fincher, 2013 WL 5429928, at *2; Humphrey, 2012 WL 4739925, at *2. We
overrule Scott's second issue.
V. Limiting Instruction Not Timely Requested
In his third issue, Scott argues that the trial court should have included in
the jury charge his requested limiting instruction telling the jury to consider only
his responses to the detectives' statements during the.recorded interrogations.
The Texas Court of Criminal Appeals has explained that a limiting
instruction should first be requested "when the evidence is admitted and then
again at the final jury charge." Hammock v. State, 46 S.W.3d 889, 895 (Tex.
Crim. App. 2001). This is because "it is impossible for the jury to go back at the
close of the trial and reassess the evidence in light of the limiting instruction,
even if they could appreciate which items of evidence the instruction was
supposed to apply to." Id. (citation omitted). When the evidence in question is
admitted for all purposes, a limiting instruction on the evidence is not "within the
law applicable to the case," and the trial court is not required to include the
limiting instruction in the jury charge. Id.
Here, the record reveals that Scott did not request the limiting instruction
when the trial court admitted and published the video; instead, Scott requested
the limiting instruction at the jury-charge conference after the close of evidence.
The video that included the detectives' statements was therefore admitted for all
purposes, and thus the trial court was not required to include the limiting
instruction in the jury charge. See id. We therefore hold that the trial court did
13
not err by refusing to include Scott's untimely-requested limiting instruction in the
jury charge. See id.; see also Delgado v. State, 235 S.W.3d 244, 251 (Tex.
Crim. App. 2007) ("[l]f a defendant does not request a limiting instruction ... at
the time that the evidence is admitted, then the trial judge has no obligation to
limit the use of that evidence later in the jury charge."); Freeman v. State, 413
S.W.3d 198, 208 (Tex. App.—Houston [14th Dist] 2013, pet. refd) (holding
same); Taylor v. State, No. 02-11-00092-CR, 2012 WL 955383, at *7 (Tex.
App.—Fort Worth Mar. 22, 2012, no pet.) (mem. op., not designated for
publication) (same). We overrule Scott's third issue.
VI. Conclusion
Having overruled Scott's three issues, we affirm the trial court's judgment.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
SUDDERTH, J., concurs without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2015