AFFIRM; and Opinion Filed May 21, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00223-CR
TIWIAN LAQUINN SKIEF, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F10-35936-L
OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice Myers
Appellant Tiwian Laquinn Skief was convicted of murder and sentenced to fifty years in
prison. In four issues, he contends the trial court erred (1) by refusing to remove portions of the
jury charge that were not supported by the evidence; (2) not admonishing the jury after it was
“contaminated” by witnesses and/or trial participants; (3) appellant’s confrontation clause rights
were violated; and (4) the prosecutor engaged in improper jury argument. We affirm.
DISCUSSION
Limiting Instruction on Self-Defense
In his first issue, appellant argues the trial court erred by refusing to remove portions of
the jury charge that were, according to appellant, not supported by the evidence. He contends
the trial court erred by overruling his objection to the portion of the jury charge that restricted
appellant’s self-defense claim if appellant sought an explanation from the complainant, Tyvanti Johnson, while unlawfully carrying a handgun. As objected to by appellant, the relevant portion
of the court’s charge reads as follows:
Our law further provides that it is unlawful for a person to intentionally or knowingly or recklessly carry a handgun on or about his person, unless he is traveling. A person acts “recklessly” or is “reckless” with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, as viewed from the standpoint of the person charged. For a person to be deemed “reckless” there must actually be both a substantial and unjustifiable risk that the result complained of will occur, and that the person acting was actually aware of such risk and consciously disregarded it. While a defendant has a right to seek an explanation from or discussion with another concerning a difference with the other person, the use of force against another is not justified if the defendant sought an explanation from or discussion with another concerning a difference with the other person while the defendant was unlawfully carrying a handgun. Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the force used by the defendant against TYVANTI JOHNSON was at a time when the defendant was seeking an explanation from TYVANTI JOHNSON, but at that time the defendant was unlawfully carrying a weapon, to-wit: a handgun, you will find against the defendant’s claim of self- defense.
Defense counsel objected to the portions of the above-quoted charge pertaining to
unlawful carrying of a weapon and the exception to self-defense. He argued the circumstances
required for the exception to apply were not raised by the evidence:
I would submit to the Court that that circumstance has not been raised by the evidence. I would submit that the evidence that’s before the jury is, both from the testimony of the Defendant and of Eric Alexander, that Tyvanti Johnson, the victim in this case, was the one who first hopped out of his car in the middle of Compton Street and was attempting to flag down or approach [appellant]; that he was the one who initiated the confrontation that resulted in Tyvanti Johnson's death. In this circumstance, I do not believe that the evidence could be interpreted by the jury to the contrary, including phone records and everything else that’s been introduced by the State and by the Defense, testimony as well. A reasonable jury could never conclude that it was [appellant] who initiated this discussion in any way, shape or form. And I would submit that’s improper in charging the jury with that language.
–2– The State responded that there was evidence supporting the submission of the charge:
So it’s the State’s contention that there is evidence in front of this jury that [appellant] had differences with the victim and, on that day, by pulling that car over, by getting out and going toward or making himself in a position to seek out a discussion about those differences, getting out of that car, as he sees where the victim was, that that has been raised and the jury can absolutely interpret this in a reasonable manner, to suggest that he armed himself and went and had himself a confrontation with the victim in this case.
The trial court overruled the objection and presented the charge to the jury.
Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Under that standard, we first determine whether
there was error in the charge. Id. at 174. If error occurred and appellant objected at trial, the
reviewing court determines whether the error was “calculated to injure” the appellant’s rights,
which means there must be “some harm” to the accused resulting from the error. Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza, 686 S.W.2d at 171). If,
however, the appellant did not object, the reviewing court will reverse only if the error resulted
in “egregious harm.” Id. (quoting Almanza, 686 S.W.2d at 171).
The penal code provides that a person is justified in using deadly force when and to the
degree the person reasonably believes it is immediately necessary to protect himself from
another’s use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN. §§ 9.31(a),
9.32(a). An exception to self-defense applies when the actor “sought an explanation from or
discussion with the other person concerning the actor’s differences with the other person while
the actor was: (A) carrying a weapon in violation of section 46.02.” Id. § 9.31(b)(5)(A).
“A person commits an offense if the person intentionally, knowingly, or recklessly carries
on or about his or her person a handgun . . . if the person is not: (1) on the person’s own
premises or premises under the person’s control.” Id. § 46.02(a). A person also commits an
offense if he intentionally, knowingly, or recklessly carries on or about his or her person a
–3– handgun in a motor vehicle that is owned by the person or under the person’s control at any time
in which: . . . (2) the person is: (A) engaged in a criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic,” or is “prohibited by law
from possessing a firearm.” Id. § 46.02(a–1)(2).
A defendant is entitled to an instruction on every defensive issue raised by the evidence.
Elmore v. State, 257 S.W.3d 257, 259 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A
defensive issue may be raised solely by the defendant’s testimony. Id. In determining whether
the defendant’s testimony raises the issue of self-defense, the truth of the defendant’s testimony
is not at issue. Id. Generally, issues like provocation or whether the defendant carried a gun to a
discussion are fact issues that are included in the charge as limitations to self-defense. See id. A
charge under section 9.31(b)(5)(A) limiting the right of self-defense is properly given when (1)
self-defense is an issue; (2) there are facts in evidence that show the defendant sought an
explanation from or discussion with the victim concerning their differences; and (3) the
defendant was unlawfully carrying a weapon. Lee v. State, 259 S.W.3d 785, 789 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d); Fink v. State, 97 S.W.3d 739, 743 (Tex. App.––Austin
2003, pet. ref’d).
The factors noted in Lee and other decisions are present in this case. First, appellant
testified he shot Tyvanti in self-defense; the charge instructed the jury on the law of self-defense.
Furthermore, appellant did not dispute he was unlawfully carrying a weapon. He admitted at
trial that he was carrying a handgun in violation of his parole and that he was selling drugs. As
for the second factor, whether there were facts in evidence showing the defendant sought an
explanation or discussion with the victim concerning their differences, appellant argues there
was no evidence he ever approached Tyvanti. Appellant contends his testimony and the
testimony of Eric Alexander, an eyewitness, show that the complainant approached appellant,
–4– and that nothing in their testimony supports the inference that appellant sought out or instigated
the conversation with Tyvanti.
Appellant, known as “Hitman,” and Tyvanti, known as “Eastwood” or “626,” grew up
together in Irving and were friends into their adult years. Although not related, they had close
ties through their families and “were basically like cousins.” By December of 2010, however,
their friendship had deteriorated. Several weeks before the shooting, they had a confrontation at
an Irving, Texas apartment complex. Tyvanti arrived at the apartments with his girlfriend,
Tanesha Jones, in a Mazda 626. Appellant and his cousin, Rashad Townsend, arrived shortly
afterwards in a gold Jeep. Appellant approached Tyvanti’s car, pounded on the passenger’s side
door, and yelled that Tyvanti owed him money. Tanesha could not hear the entire argument
between Tyvanti and appellant because she stayed in the car, but she heard appellant say, “On
blood, you’re not going to be driving this car no more.” Tyvanti then took off his shirt and said,
“Let’s fight.” At that point, appellant got back into the gold Jeep and drove away, almost hitting
Tyvanti.
Alexander testified that he was driving north on Compton street in Irving at
approximately 1:20 p.m. on December 28, 2010, when he saw a Mazda 626 stop in the road.
The driver of the Mazda “jumped” out of the car and walked toward the back of the car.
Suddenly, a white Chrysler 300 pulled onto the street, “whipped” toward the man that was
walking toward the rear of the Mazda, and “clipped” him. To Alexander, it looked as though the
driver of the Chrysler deliberately tried to hit the man and that “he was trying to harm the guy.”
After “clipping” the man, the driver of the Chrysler drove to the next intersection, Compton and
Carver streets, immediately turned onto Carver, and parked his car. As Alexander drove by, he
could see the man in the Mazda walking towards “the car that clipped him.” Alexander
“couldn’t see or hear what he was saying, but he was upset.” He did not appear to be carrying
–5– any type of weapon. As for the driver of the Chrysler, Alexander added: “I saw a guy standing
outside his car, in between the door and his car. He was standing, watching the guy walking
toward him. Whatever he was saying.” After driving through the intersection, Alexander
continued watching the two men in his rearview mirror. He did not hear a gunshot but saw the
man who had exited the Mazda “jump” or “flinch,” then turn around. At that point, Alexander
knew “something bad” had happened, and he pulled over and called 911. On cross-examination,
he testified that he did not see a weapon in either driver’s hand and that he could not identify
appellant in a six-photo lineup as one of the individuals he saw.
The suspect vehicle, a white Chrysler 300, belonged to Mark Sample, who was arrested
based on outstanding warrants and interviewed by the Irving police. During his first interview,
which occurred on the day of the offense, Sample admitted owning the car and told the police he
had been in possession of it the entire day of the offense. He denied any knowledge of the
shooting. In a second interview with the police the following day, Sample told the Irving police
detective, Joe Hennig, that appellant was driving the Chrysler at the time of the offense and that
they traded cars at the Lipstick Gentlemen’s Club, where appellant’s girlfriend, Riketta Johnson,
worked as a dancer. When he testified in his defense, appellant told the jury he traded cars with
Sample on December 28, 2010 because he “wanted to kind of show off a little bit” for an ex-
girlfriend 1 he planned to meet.
We conclude the trial court properly instructed the jury. There is sufficient evidence
from which a rational trier of fact could find appellant sought an explanation from or discussion
with the complainant after appellant’s car suddenly swerved and struck or nearly struck the
complainant. Because there is evidence raising the issue, we therefore conclude the trial court
did not err by instructing the jury under section 9.31(b)(5)(A), and that the jury charge does not
1 Appellant identified the ex-girlfriend as Stormy Roberson.
–6– contain error. See Lee, 259 S.W.3d at 790-91. We overrule appellant’s first issue.
Article 36.22
In his second issue, appellant contends the trial court erred by failing to admonish the
jury on the record after the jury was allegedly “contaminated by contact with witnesses and/or
participants in the case while outside the courtroom.”
During the trial, immediately following the lunch break on the first day of witness
testimony, the trial court held a hearing outside the presence of the jury “regarding contact
between members of the jury and members of the public in the gallery, who are watching the
trial transpire.” The trial court asked the State for its position on the issue, and the State told the
trial court that “the Defense is better able to explain” the situation. Defense counsel advised the
court as follows:
Right after the lunch break, a civilian who was sitting in the audience watching the trial approached my investigator, indicated to [my investigator] that she was a relative of [appellant]. Kind of like a stepsister, is how she described it. I don’t think it’s actually a blood relationship. It doesn’t sound like it. She indicated she had been in here watching the trial.
When she was out in the hallway, two of the jurors approached her. One of the ladies goes to her church, she said, and one of the men is someone that she used to work with. They asked her why she was here. She simply said she couldn’t talk to them, because––I don’t know if she said, “Because you’re jurors, I can’t talk to y’all.” She told me that she just told them, “I can’t talk to you.” She didn’t talk to them about the case at all. She didn’t even tell them why she was here.
Just for record purposes, the State and myself and the Court have had a discussion off the record about how we should handle that situation. And I believe we have decided that, rather than make a big in-court discussion about it, the State and the Defense have agreed that the Court may, with the bailiff, go back to the jury room, reurge the admonitions to the jury and inquire about whether or not anything about that relationship or that encounter would influence the two jurors in question, about whether or not that would affect them as jurors in the case.
The State agreed with defense counsel’s comments and the proposed solution. The trial
court stated: “With the agreement of both sides, the Court will meet with the jurors, escorted by
a bailiff, and stress to them the importance of restricting their deliberations to the facts and –7– evidence presented in court and not take into consideration their previous contact with members
in the gallery.” Counsel for the State and defense reiterated their understanding and agreement
regarding the proposed solution. The record then reflects a “[b]rief pause in the proceedings,” at
which point the trial judge and court bailiff went to the jury room to speak with the jury.
As a prerequisite to presenting a complaint for appellate review, appellant must present to
the trial court a timely request, objection, or motion stating the specific grounds for the desired
ruling. TEX. R. APP. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim.
App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). A
defendant “may not, for the first time on appeal, urge error not raised at trial.” Nelson v. State,
607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Even constitutional rights may be forfeited by the
failure to object. Castaneda, 135 S.W.3d at 723.
A juror must make decisions at the guilt and punishment phases using information
obtained in the courtroom: the law, the evidence, and the trial court’s mandates. Ocon v. State,
284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “No person shall be permitted to converse with a
juror about the case on trial except in the presence and by the permission of the court.” TEX.
CODE CRIM. PROC. ANN. art. 36.22. The primary goal of article 36.22 is to insulate jurors from
outside influence. Chambliss v. State, 647 S.W.2d 257, 266 (Tex. Crim. App. 1983); Bokemeyer
v. State, 355 S.W.3d 199, 203 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “Therefore, if a
violation is shown, the effectiveness of possible remedies will be determined in part by whether
the conversation influenced the juror.” Ocon, 284 S.W.3d at 884.
“A violation of Article 36.22, once proven by the defendant, triggers a rebuttable
presumption of injury to the accused, and a mistrial may be warranted.” Id. “When determining
whether the State sufficiently rebutted the presumption of harm, we view the evidence in the
light most favorable to the trial court’s ruling and defer to the trial court’s resolution of historical
–8– facts and its determination concerning credibility and demeanor.” Id. The presumption may be
rebutted by a showing that the case was not discussed or that nothing prejudicial about the
accused was said. See Bokemeyer, 355 S.W.3d at 203; Gates v. State, 24 S.W.3d 439, 443 (Tex.
App.––Houston [1st Dist.] 2000, pet. ref’d). Because a mistrial is an extreme remedy, it is
appropriate “‘only when residual prejudice remains’ after less drastic alternatives are explored.”
Ocon, 284 S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App.
2005)). Instructions to the jury are generally considered sufficient to cure most improprieties
occurring during trial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
On appeal, appellant contends the trial court erred by admonishing the jury off-the-record
and that it “failed to issue findings of fact or conclusions of law regarding why the Court
believed that the brief pause in proceedings was sufficient to cure any harm caused by the ex
parte contact between the jurors and the public.” Appellant argues his right to an impartial jury
was violated.
But appellant did not request findings of fact or conclusions of law and failed to object or
otherwise express disapproval with the trial court’s actions. The court of criminal appeals has
concluded:
The right to a jury verdict entirely untainted by any potential outside influence strikes us as properly categorized among the “[a]ll but the most fundamental rights [that] are thought to be forfeited if not insisted upon by the party to whom they belong.” We perceive no reason that a defendant should not be deemed to have forfeited the protections of Article 36.22 in the event that he becomes aware of its breach during the course of the trial but fails to call the transgression to the trial court’s attention so that the error may be rectified or, barring that, so that the defendant can make a timely record for appeal.
Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010). Because he did not object to the
trial court’s actions, appellant failed to preserve this issue for appellate review. See TEX. R. APP.
P. 33.1(a)(1)(A). Furthermore, it was defense counsel who proposed the off-the-record
admonishment. Appellant should not benefit from a complaint he invited and agreed to. We –9– also note that, according to defense counsel’s explanation of the communication, the gallery
member in question did not discuss the case with the two jurors or even explain her presence.
Consequently, even if we assumed the error was preserved, no abuse of discretion has been
shown. We overrule the second issue.
Confrontation Clause
In his third issue, appellant argues his rights under the Confrontation Clause were
violated by Barbara Castro’s testimony concerning the content of conversations she had with
appellant’s girlfriend on the day the complainant was shot.
During the State’s case-in-chief, the State called Castro as a witness. The trial court held
a hearing outside the presence of the jury to address appellant’s objections to Castro’s testimony.
Castro testified at the sub rosa hearing and that she worked as the “house mom” at the Lipstick
Gentlemen’s Club, where appellant’s girlfriend Riketta worked as a dancer. She testified that
Riketta had previously mentioned that she had a boyfriend known as “Hitman,” and that Riketta
had the nickname “Hitman” tattooed on her body.
On December 28, 2010, Riketta used Castro’s phone throughout the day. At
approximately 1:30 or 2:00 p.m. that day, a man (who did not identify himself) called Castro’s
phone and asked to speak to Riketta. Castro handed the phone to Riketta, who was standing
nearby. Castro recalled that, when Riketta finished the telephone call, she was “real agitative
[sic] and nervous” and seemed to be under the stress or excitement of the call. Riketta told
Castro she needed to leave because “someone had been shot.” In her statement to the police the
following day, Castro said that Riketta then told her, “I have to go, because my boyfriend just
shot someone.”
Defense counsel objected that Castro’s testimony regarding what Riketta said did not
qualify as an excited utterance because Riketta was not “reacting to the stress of the event.” He
–10– also argued that Castro’s testimony was not the best evidence because Riketta had been
subpoenaed to testify. Defense counsel added, “It’s a confrontation clause objection as well,
Your Honor.” The prosecutor responded that Riketta’s availability eliminated any Confrontation
Clause issues. The prosecutor also explained that witness unavailability was not a prerequisite
for admitting a statement as an excited utterance and reiterated that the statement met the
requirements for an excited utterance. After noting that the first sentence of rule 803 specifically
states the exceptions apply even though the declarant is available as a witness, the court
overruled appellant’s objection and allowed the testimony.
Castro testified before the jury that she worked as the “house mom” at the Lipstick
Gentlemen’s Club, where Riketta had danced for four years. She testified that Riketta used her
cellular phone at various times on December 28, 2010, and that, at approximately 1:30 or 2:00
p.m. that day, Riketta received a call from a male caller. Castro answered the phone initially but
handed the phone to Riketta, and stood next to her as she took the call. Prior to taking the
telephone call, Riketta was “[h]er regular, normal self,” “[i]n a good mood,” and “[r]eady to go
on the floor,” but Castro noticed Riketta’s demeanor or manner changed after the call. She was
“just real nervous, agitative [sic]” and “upset” after taking the call. Castro testified that Riketta
also breathed heavily, seemed very startled by whatever she heard on the phone, and paced the
floor. Riketta told Castro: “Oh, mom, I need to leave. I need to leave.” When Castro replied,
“You need to calm down and tell me what’s wrong,” Riketta said: “I need to leave. He shot
somebody.” Castro testified that Riketta indicated “her boyfriend” was the person who had shot
someone. Castro also told the jury that Riketta had her boyfriend’s nickname, “Hitman,”
tattooed above her left breast.
Castro testified that she told Riketta she could not drive until she calmed down. Riketta
responded that she did not have her car because her “boyfriend had it,” and that her boyfriend
–11– was coming to pick her up in his friend Mark’s car. On cross-examination, Castro admitted that
she was not on the telephone during the call and could not hear what was said––only Riketta’s
reaction and what Riketta subsequently told her.
On appeal, appellant contends the trial court’s decision to allow Castro’s testimony
violated his Confrontation Clause rights. He argues that, by calling Castro to testify even though
“Riketta was subpoenaed by the State and was apparently available to testify,” the State
impermissibly elicited hearsay instead of having the declarant, Riketta, testify to the statement
that her boyfriend had “shot somebody.” Appellant does not contest the statement’s
admissibility as an excited utterance; he argues his right to confrontation was violated by the
introduction of a “testimonial statement of an available witness via hearsay.”
Although we defer to a trial court’s determination of historical facts and credibility, we
review a constitutional legal ruling , i. e., whether a statement is testimonial or nontestimonial, de
novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). This is particularly so
because the legal ruling of whether a statement is testimonial under Crawford v. Washington is
determined by the standard of an objectively reasonable declarant standing in the shoes of the
actual declarant. Crawford v. Washington, 541 U.S. 36, 52 (2004); Wall, 184 S.W.3d at 742-43.
The Confrontation Clause guarantees the right of an accused “to be confronted with the
witnesses against him.” See U.S. CONST. AMEND. VI; Shelby v. State, 819 S.W.2d 544, 546 (Tex.
Crim. App. 1991)(en banc). This right of confrontation is a fundamental right and is applicable
to the states by virtue of the Fourteenth Amendment. Shelby, 819 S.W.2d at 546. The primary
interest protected under the Confrontation Clause is the right of cross-examination. See id. In
Crawford, the United States Supreme Court explored the parameters of this right and concluded
it was a violation of the Sixth Amendment for a court to admit testimonial statements of a
witness who did not appear at trial unless that witness was unavailable to testify and the
–12– defendant was afforded a prior opportunity for cross-examination. Crawford, 541 U.S. at 68; see
also De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
In Crawford, the Court explained that generally a statement should be considered
“testimonial” if it constitutes a “solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51. Additionally, the Court explained
that “[a]n accuser who makes a formal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an acquaintance does not.” Id.; see also Giles
v. California, 554 U.S. 353, 376 (2008); Davis v. State, 268 S.W.3d 683, 710 (Tex. App.—Fort
Worth 2008, pet. ref’d). While the Court in Crawford declined to provide a comprehensive
definition of “testimonial” evidence, it noted that certain classes of “core” statements are
regarded as testimonial, including:
ex parte in-court testimony or its functional equivalent––that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]
Id. at 51-52 (internal citations and quotations omitted). “Statements taken by police officers in
the course of interrogations are also testimonial under even a narrow standard.” Id. at 52.
Under the Crawford framework, the primary focus in determining whether hearsay
statements are “testimonial” is on the objective purpose of the interview or interrogation, not the
declarant’s expectations. See De La Paz, 273 S.W.3d at 680. “Generally speaking, a hearsay
statement is ‘testimonial’ when the surrounding circumstances objectively indicate that the
primary purpose of the interview or interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” Id. “In such a situation, the person offering information
is literally bearing testimony.” Id. –13– The fact that a statement qualifies under a hearsay exception, such as an excited utterance
under rule of evidence 803(2), does not necessarily free it from the strictures of the
Confrontation Clause. See McCarty v. State, 227 S.W.3d 415, 417 (Tex. App.—Texarkana
2007), aff’d, 257 S.W.3d 238 (Tex. Crim. App. 2008); see also TEX. R. EVID. 803(2) (providing
a hearsay exception for “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition”). Rather, the
event giving rise to an excited utterance informs the Confrontation Clause analysis and sheds
light on the inquiry as to the statement’s testimonial nature. See Wall, 184 S.W.3d at 740;
McCarty, 227 S.W.3d 418; see also Tarver v. State, Nos. 05-06-01091-CR & 05-06-01667-CR,
2008 WL 2514312, at *3 (Tex. App.––Dallas Nov. 5, 2008, pet. ref’d) (not designated for
publication) (statement made by witness that defendant “had a gun” was not testimonial and
could be admitted under Confrontation Clause as excited utterance exception).
In this case, we cannot conclude the complained-of statement was “testimonial” under
Crawford. Nothing in the statement or in the circumstances under which it was made would lead
an objective witness reasonably to believe the statement would be available for use at a later
trial. The statement was not made in any kind of formal setting or structured environment, nor
was it a response to a police interrogation, inquiry, or investigation. On the contrary, when
viewed objectively, the statement appears to have been an excited utterance made to a co-worker.
The statement, taken in context, explained why Riketta seemed startled by whatever she had
heard on the phone and why she appeared nervous, agitated, upset, and paced the room. Under
these circumstances, we cannot conclude the trial court erred by admitting the statement as an
excited utterance. We overrule appellant’s third issue.
Improper Jury Argument
In his fourth issue, appellant contends the trial court “committed reversible error by
–14– failing to remedy the State’s improper closing argument.” Permissible jury argument generally
falls into one of four areas: (1) summation of the evidence; (2) reasonable deductions from the
evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Berry v. State, 233 S.W.3d 847,
859 (Tex. Crim. App. 2007). Counsel is generally given wide latitude in drawing inferences from
the evidence as long as they are reasonable, fair, legitimate, and offered in good faith. Shannon
v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).
Appellant takes issue with two portions of the State’s closing argument. During the
State’s closing argument, appellant’s trial counsel objected to speculation and arguing outside
the record when the prosecutor stated:
[PROSECUTOR]: . . . . Do you recognize who Hitman is? Do you recognize him yet? Are you starting to see him? Because the other day, you probably didn’t. When he starts talking about “you better lace her up”––just so we’re clear, he’s talking about getting witnesses ready to come in here and put one over on you twelve citizens.
[DEFENSE COUNSEL]: Your Honor, I’m going to object to speculation. Arguing outside the evidence.
[PROSECUTOR]: It’s a reasonable deduction from the evidence.
THE COURT: The jury will recall the evidence as they heard it. Proceed.
Later, during the rebuttal portion of the State’s closing argument, the prosecutor made the
following comments:
[PROSECUTOR]: . . . . Now, let’s go through all the lies that he told you. When he first got on the stand, what’s the first thing he says? “I heard about him shooting two people across town in Irving just a week before this happened, and I was so terrified for my life. Because I saw the girl he shot. She was walking on a little walker.” He even tried to make the little hand motions. “She was terrified. She was shaking. She thought I was coming to finish the job.” Now, granted, I’d be scared of somebody with a tattoo named “Hitman” that’s a drug lord out of my area. But he wants you to believe that she thought he was working with Tyvanti to come and kill her. Ladies and gentlemen, what did those jail calls show you? What did Detective Wyatt tell you? She was shot December 21st, and she had been –15– hospitalized up until at least the point where the detective interviewed her on December 29th. That’s one day after he killed Tyvanti.
[DEFENSE COUNSEL]: I object to a misstatement of the evidence.
COURT: The jury will recall the evidence, as they heard it. Proceed.
According to the record, following each of appellant’s objections, the trial court did not
rule on the objections. The trial court stated: “The jury will recall the evidence as they heard it.
Proceed.” An objection to argument must be pressed to the point of procuring a ruling or the
alleged error is waived on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996); DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. 1979). The court of criminal
appeals has explained:
We have previously said that while the “traditional and preferred procedure” for a party to preserve error is to (1) object in a timely manner, (2) request an instruction to disregard, and (3) move for a mistrial if the instruction to disregard seems insufficient, such a sequence is not essential to preserve complaints for appellate review. The only essential requirement to ensure preservation is a timely, specific request that is refused by the trial court.
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (internal citations omitted); see also
TEX. R. APP. P. 33.1(a).
After the trial court instructed the jury, appellant did not ask for any further relief. In this
instance, the trial court’s response was not a ruling on the objection and it is insufficient to
preserve error. See DeRusse, 579 S.W.2d at 235; see also Mayberry v. State, 532 S.W.2d 80, 84
(Tex. Crim. App. 1976) (op. on reh’g) (“[j]ury will recall the evidence” does not preserve error);
Nichols v. State, 504 S.W.2d 462, 464-65 (Tex. Crim. App. 1974) (same). Because appellant did
not request further relief that was refused by the trial court, he failed to preserve his fourth issue
for our review. See TEX. R. APP. P. 33.1(a). We overrule appellant’s fourth issue.
–16– We affirm the trial court’s judgment.
/Lana Myers/ LANA MYERS JUSTICE
Do Not Publish TEX. R. APP. P. 47 120223F.U05
–17– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TIWIAN LAQUINN SKIEF, Appellant On Appeal from the Criminal District Court No. 5, Dallas County, Texas No. 05-12-00223-CR V. Trial Court Cause No. F10-35936-L. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Bridges and FitzGerald participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of May, 2013.
–18–