PD-1659-14
COURT OF CRIMINAL APPEALS OF TEXAS _______________________________________
DEAN JEROME WOOD, Appellant, JANUARY 16, 2015 VS.
THE STATE OF TEXAS, Appellee. __________________________________________________________________
On Petition for Discretionary Review from the First Court of Appeals in Cause No. 01-13-00845-CR, affirming the conviction in Cause No. 1285552, from the 176th District Court of Harris County, Texas __________________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW __________________________________________________________________
ALEXANDER BUNIN Chief Public Defender Harris County, Texas
BOB WICOFF Assistant Public Defender Harris County, Texas TBN 21422700 1201 Franklin, 13th floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 bwicoff@pdo.hctx.net
Counsel for Appellant
i TABLE OF CONTENTS
PAGE
Table of Contents: 2
Index of Authorities: 3
Statement Regarding Oral Argument: 4
Statement of the Case: 4
Statement of Procedural History: 4
Ground for Review 4
The First Court of Appeals held that any error in allowing a police officer to provide repeated and improper opinion testimony regarding the Appellant’s credibility had only a slight effect on the jury’s verdict. Is this conclusion justified in light of the fact that the improper opinion testimony was repeated several times, the jury engaged in lengthy deliberations, the jury asked to view the tape recording in which the officer gave his improper opinion testimony, and the prosecutor adopted the officer’s improper opinion in his closing argument?
Argument Under Ground for Review: 5
Prayer for Relief: 13
Certificate of Service: 13
Certificate of Compliance: 14
Appendix (Wood v. State): attached
2 INDEX OF AUTHORITIES
PAGE Cases
Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011) ............................................. 10, 11
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) .................................................. 10
Torres v. State, 137 S.W.3d 191 (Tex. App.-Houston [1st Dist.] 2004, no pet.)............... 7-8
Wood v. State, No. 01-13-00845-CR, 2014 WL 5780273 ..............................................passim (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.)(mem. op., not designated for publication)
Statutes and Rules
Tex. R. App. P. 44.2(b)………………………………………………………………13
3 STATEMENT REGARDING ORAL ARGUMENT
The Appellant waives oral argument.
STATEMENT OF THE CASE
Dean Jerome Wood was indicted in cause number 1285552 for Felony Murder,
alleged to have occurred on or about August 20, 2010 (C.R. at 7); See Tex. Penal Code, §
19.02(b)(3). The case was tried in September of 2013 and a jury found Wood guilty (C.R. at
224). The trial court sentenced him to ninety-two (92) years in prison (C.R. at 225). No
motion for new trial was filed.
STATEMENT OF PROCEDURAL HISTORY
On November 6, 2014, the First Court of Appeals affirmed the Appellant’s
conviction in an unpublished memorandum opinion. Wood v. State, No. 01-13-00845-CR,
2014 WL 5780273 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.)(mem. op., not
designated for publication). This Court extended the time to file the Petition for
Discretionary Review until January 7, 2015.
GROUND FOR REVIEW The First Court of Appeals held that any error in allowing a police officer to provide repeated and improper opinion testimony regarding the Appellant’s credibility had only a slight effect on the jury’s verdict. Is this conclusion justified in light of the fact that the improper opinion testimony was repeated several times, the jury engaged in lengthy deliberations, the jury asked to view the tape recording in which the officer gave his improper opinion testimony, and the prosecutor adopted the officer’s improper opinion in his closing argument?
4 ARGUMENT
A. The Appellant’s argument at the court of appeals
The Appellant argued at the court of appeals that the trial court abused its discretion
in allowing the jury to hear, over objections from defense counsel, Houston Police
Department Officer Abbonandolo’s repeated opinion that the Appellant was lying about his
involvement in the death of the Complainant. The officer’s opinion was provided both
during his testimony at trial, and in numerous comments that he made during a videotaped
interview of the Appellant that was played for the jury (State’s exhibit 94; 6 R.R. at 126). The
officer’s opinion that the Appellant was lying was based in part on the Appellant’s body
language during the interview. At other times, he simply voiced the same conclusion without
citing any reason.
The videotape of the interview was admitted during Officer Abbonandolo’s
testimony. Prior to the officer taking the stand and the videotape being played, defense
counsel objected to both the videotape itself, and posed an objection to any opinions the
officer might give during his testimony which gave an opinion that the Appellant was lying
(6 R.R. at 104-105, 106, 110, 111-112). The trial court denied those objections, but the trial
court did order the State to redact some portions of the interview where the officer told the
Appellant that he could tell by his physical responses that he was lying (6 R.R. at 106-107;
110-111).
B. The court of appeals opinion
The court of appeals held that there was no error in admitting the videotaped
interview itself. Opinion, at *5-6. As to the Appellant’s argument that the trial court also erred 5 in allowing impermissible opinion testimony from the officer as to whether the Appellant
was telling the truth, the court of appeals concluded as follows:
Assuming without deciding that Detective Abbondandolo’s testimony regarding his reasons for not believing what appellant was telling him during the interrogation did constitute impermissible opinion testimony, the error was not harmful.
Under Rule of Appellate Procedure 44.2(b), we must disregard non- constitutional error that does not affect a defendant’s “substantial rights,” that is, if upon examining the record as a whole, there is a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Tex.R.App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). If the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such non- constitutional error is harmless. Coble, 330 S.W.3d at 280. In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. See id.; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); James v. State, 335 S.W.3d 719, 727 (Tex. App.-Fort Worth 2011, no pet.).
The evidence of appellant’s guilt was overwhelming. See Motilla, 78 S.W.3d at 360 (holding that weight of evidence of defendant’s guilt is relevant factor in conducting harm analysis). Appellant and Ryan were the only two people in the apartment when Ryan sustained the injuries that ultimately killed her. The apartment door had a special lock to prevent Ryan from wandering away and neither appellant nor Ryan had the key. Ramirez testified that she left appellant alone with Ryan when she went to visit a neighbor, and when she returned, she found Ryan in the shower showing signs of serious injury.
The jury also had substantial physical evidence on which to base its verdict. The medical examiner testified extensively regarding the cause of Ryan’s death, including blunt force trauma and lacerations to her vagina. Ryan’s DNA was found on the inside of appellant’s shorts where appellant’s penis would have been in contact with the fabric, and both Ryan’s and appellant’s DNA was found on beer bottles collected from the scene.
*7 Furthermore, the jury watched the video recording of appellant’s interview and was able to assess appellant’s credibility for itself. Appellant testified that 6 he found Ryan on the sofa not breathing and that he attempted CPR. He also admitted that he was drunk and “must have blacked out” because he could not remember how Ryan ended up in the shower. Appellant did not testify at trial or admit any evidence regarding what might have happened while he was “blacked out.” Thus, his credibility was not a central issue in the case. And Detective Abbondandolo’s testimony about his perceptions of appellant’s truthfulness during the interview were relatively insignificant compared to the other evidence presented at trial.
Appellant argues that the “lengthy deliberations” and the jury notes requesting a transcript of appellant’s interrogation, copies of Ostlund’s and Ramirez’s testimony, Ryan’s medical and autopsy reports, and a copy of the receipt showing what appellant purchased at the store shortly before Ryan’s death demonstrate that he suffered harm. The record demonstrates that the jury deliberated for approximately five hours in considering the evidence adduced over four days during the guilt-innocence phase of trial. Under the circumstances of this case, five hours of deliberation does not support appellant’s claim that jury had difficulty reaching a verdict. Furthermore, none of the requests for copies or physical exhibits sought Detective Abbondandolo’s testimony. Rather, the jury reviewed the transcript of appellant’s interrogation, Ostlund’s and Ramirez’s testimony, and the physical evidence presented at trial.
Based on the entirety of the record, we have a fair assurance that the alleged error did not influence the jury or that it had but a slight effect. See Coble, 330 S.W.3d at 280; Motilla, 78 S .W.3d at 360.
We overrule appellant’s sole issue. Opinion, at *6-*7.
C. Argument
As argued at the court of appeals below, lengthy deliberations by the jury may
underscore the harmfulness of error in a non-constitutional harm analysis. Torres v. State, 137
S.W.3d 191, 198-199 (Tex. App.-Houston [1st Dist] 2004, no pet.). In Torres, the jury
deliberated for approximately six hours before reaching a verdict, sending out two notes in
the process, one factor that the First Court of Appeals cited in that case in determining that
the error in that case resulted in “some harm” requiring reversal. Id., at 198. The First Court 7 of Appeals in this case downplayed the length of deliberations in this case, observing that
“[T]he record demonstrates that the jury deliberated for approximately five hours in
considering the evidence adduced over four days during the guilt-innocence phase of the
trial,” indicating that “five hours of deliberation does not support appellant’s claim that the
jury had difficulty reaching a verdict.” Opinion at *7.
Putting aside the question of how the court of appeals can reconcile its conclusion
that five hours of deliberation is not a particularly long time to deliberate guilt-innocence in a
case where they have noted that “[T]he evidence of appellant’s guilt was overwhelming,” it is
not simply the length of time spent deliberating but what jury notes revealed as the issue that
the jury may have been grappling with, in determining whether the complained-of error had
an effect on the jury’s verdict.
It makes sense to consider the contents of any jury notes in determining whether the
error might have had an effect on the jury’s verdict. Obviously, if the notes fairly suggest
that the jury was struggling with the very issue that the alleged error pertained to, then those
notes, coupled with a lengthy deliberation process, might reasonably suggest that the error
had some effect on the jury’s verdict. A reviewing court should hesitate to conclude that an
error wasn’t harmful, given the strength of the other evidence as they see it if,
notwithstanding such other evidence, the particular lay jury that heard the case still struggled
to reach a verdict. A reviewing court should recognize and respect that fact, rather than
substituting its own view that because the case shouldn’t have been a close one in its mind,
then the error at the trial was harmless.
8 The docket sheet in this case reflects that jurors retired to deliberate sometime around
noon on September 24, 2013 (C.R. at 236). About an hour later, they sent out a note that
began by requesting “a copy of the transcript of Officer Abby’s (Abbonandolo’s)
interrogation of Defendant” (C.R. at 213). The note also requested the medical report from
Bayshore Medical Hospital, where the complainant had been admitted for injuries on a date
prior to the date she died. The note also requested the autopsy report. It is reasonable to
infer from the contents of the note that the jury was focusing on the complainant’s
admission to Bayshore Hospital for injuries sustained on the occasion prior to the date she
died, perhaps to compare such medical records to the autopsy report. This may have been to
determine whether the prior injury (in which the Appellant played no part) contributed to
the complainant’s death. It may also have been a matter of trying to determine whether the
prior injury may have involved abuse, and could shed some light on whether the
Complainant’s granddaughter, who was her caretaker prior to the Appellant, played some
part in her death.
About an hour after the first note, the jury sent a second note, which asked “to see
the Fiesta receipt and a picture of that purchase” (C.R. at 214). The only reasonable
explanation of why the jury would want to inspect the Fiesta receipt is that they were trying
to determine whether the testimony provided by the complainant’s granddaughter, Julie
Ostlund, was credible, regarding when she went to Fiesta and what she bought there.
Coupled with the first note, it is reasonable to infer that the jury was considering the issue of
Julie’s credibility and her possible involvement in her grandmother’s death.
9 Still a third note was sent by the jury, this one an hour after the second (C.R. at 215).
This note asked for a copy of “Julie’s and Mary’s testimony, and copy of Dean’s
interrogation in bunny suit.” This note clearly suggests that the jury was focusing on the
credibility of the three people who could possibly have killed the complainant. It was the
second request for evidence of the interview between Officer Abbonandolo and the
Appellant. It must be stressed that in terms of hearing the Appellant’s version of events and
assessing his credibility, the jury had nothing to refer to other than the videotape.
The lengthy deliberations, coupled with the contents of the jury notes, suggests that to
this particular jury, the credibility of the Appellant, vis-à-vis Mary and especially Julie, was
the most important issue in the case. The error in allowing Officer Abbonandolo to
repeatedly assert that the Appellant was lying should give this court grave concern about
whether the jury’s verdict suffered from the effect of the error. Barshaw v. State, 342 S.W.3d
91, 93 (Tex. Crim. App. 2011). The First Court of Appeals’ “fair assurance that the alleged
error did not influence the jury or that it had but a slight effect” should not supplant the
clear evidence that the jury did struggle with the verdict, as evidenced by the length of
deliberations and the notes sent out by the jury.
Additionally, the First Court of Appeals did not consider the fact that the error in
allowing the officer to give his opinion testimony was repeated, not an isolated instance. This
Court has considered the fact that an error was isolated in concluding that it was not
harmful. Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App. 2004). The converse should
also be true. Where an error is repeated with impunity, the likelihood that it affected the
10 jury’s verdict would be greater. In Hawkins, which involved improper argument by the
prosecutor, the error was followed by immediate curative action by the court, and an
apology and retraction from the prosecutor. Id., at 85.
By contrast, the jury in this case was not merely exposed to an isolated instance of
Officer Abbonandolo’s improper opinion. The officer interjected his opinion that the
Appellant was lying at least eight times during the videotaped interview (see pages 14-15,
supra) which was itself prefaced by Abbonandolo’s live testimony, in which he claimed to be
able to detect the Appellant’s lying because of the latter’s body language (6 R.R. at 111-112).
There were of course no curative measures taken by the trial court; the trial court implicitly
sanctioned Abbonandolo’s “expertise” by allowing it into evidence over objection. Because
the trial court’s erroneous ruling allowed the jury to be inundated with Abbonandolo’s
improper opinion on the most critical issue in the case, such factor also suggests that the
error had “a substantial or injurious effect on the jury’s verdict.” The First Court of Appeals
did not address the repetitiveness of the error in its opinion.
In assessing the likelihood that the jury’s decision was improperly influenced, “other
testimony and physical evidence” is a factor to be considered in conducting a harm analysis.
Barshaw, 342 S.W.3d at 94. In this regard, the credibility of the Appellant, Mary and Julie may
have become the jury’s main focus because none of the eleven different items of evidence
that comprised the rape kit that was submitted to the crime lab from the complainant
contained any DNA from the Appellant (7 R.R. at 169-170). Perhaps the jury’s difficulty in
reaching a verdict also had something to do with there being no indication that there was
11 blood on either of the beer bottles that were found, bottles that the State suggested had been
used in the offense (7 R.R. at 182). The absence of incriminating physical evidence that one
might expect to be found on these items, coupled with the notes that were sent from the
jury, again reinforces the likelihood that this jury’s verdict turned on a credibility
determination. Because the trial court’s error directly impacted credibility issue, it had “a
substantial or injurious effect on the jury’s verdict.”
It is finally worth noting that although the prosecutor did not directly mention Officer
Abbonandolo’s opinion during closing argument, he did adopt the officer’s “body language”
indicator of credibility:
And let’s not forget the demeanor. It’s a minor part of all this, but how does he answer questions that have to do with where he went to college and what sport he played? He’s calm, he’s collected, he’s not shuffling around, but when he’s asked questions about Flora’s death, he speeds through. He wants to change the subject. He’s nervously shuffling. (8 R.R. at 32-33).
Just as it did not mention the repeated instances of the officer interjecting his opinion,
neither did the First Court of Appeals mention the prosecutor’s argument in deciding that
the error, if any, was not harmful. The First Court of Appeals, in concluding that it had a
“fair assurance” that the error was not harmful, improperly overlooked numerous indicators
that suggested that the jury did not have such fair assurance, but was instead troubled by the
very matters that the error would have impacted.
12 PRAYER FOR RELIEF
For the reasons stated above, the Appellant moves that this Court grant his petition,
hold that harm has been demonstrated under Tex. R. App. P. 44.2(b), and reverse the case
for a new trial.
Respectfully submitted,
Alexander Bunin Chief Public Defender Harris County Texas
/s/ Bob Wicoff Bob Wicoff Assistant Public Defender Harris County Texas 1201 Franklin, 13th floor Houston Texas 77002 (713) 274-6781 TBA No. 21422700
CERTIFICATE OF SERVICE
I hereby certify that on January 7, 2015 copy of the foregoing petition has been served
electronically on Alan Curry, who is the chief of the appellate division of the Harris County
District Attorney’s Office, through the efile system, and on the State Prosecuting Attorney.
/s/ Bob Wicoff
13 CERTIFICATE OF COMPLIANCE
This petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)
and 9.4(i). It contains 2,639 words printed in a proportionally spaced typeface using
Garamond 14 point font.
14 A P P E N D I X Opinion in Wood v. State, No. 01-13-00845-CR, 2014 WL 5780273 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.) (mem. op., not designated for publication)
15 diabetes, thyroid problems, and cataracts. Because of Ryan’s condition, she could not be left alone. For Ryan’s safety, Ostlund installed special locks on the apartment that required a key to unlock from both the inside and 2014 WL 5780273 Only the Westlaw citation is currently available. outside.
SEE TX R RAP RULE 47.2 FOR DESIGNATION From the time that Ryan moved to Houston in 2000 until AND SIGNING OF OPINIONS. May 2010, Ramirez was Ryan’s primary caretaker. In May 2010, Ramirez gave birth to a baby boy and needed MEMORANDUM OPINION assistance taking care of Ryan. In 2010, Ostlund met Do not publish. TEX. R. APP. P. 47.2(b). appellant while she was working at the Salvation Army. Court of Appeals of Texas, Appellant subsequently moved into the apartment to help Houston (1st Dist.). with Ryan’s care. He slept on a loveseat in the apartment right next to the couch on which Ryan slept, and he Dean Jerome WOOD, Appellant helped care for Ryan by helping her get around and by v. making her food. The STATE of Texas, Appellee. On August 20, 2010, Ostlund went to work and Ryan No. 01–13–00845–CR. | Nov. 6, 2014. stayed at the apartment with Ramirez and appellant. At some point during the day, Ramirez asked appellant to go On Appeal from the 176th District Court, Harris County, to the store to get her cigarettes; he returned with beer and Texas, Trial Court Case No. 1285552. cigarettes, as well as a bottle of Steel Reserve malt liquor for himself. Ramirez then left the apartment with her baby Attorneys and Law Firms to visit her neighbor and locked the apartment door when Franklin Bynum, for Dean Jerome Wood. she exited, locking both Ryan and appellant inside the apartment. When Ramirez returned to her apartment, she Alan Curry, Devon Anderson, for The State of Texas. noticed that Ryan was no longer on the couch, so she checked the bathroom. Ramirez testified that she found Panel consists of Chief Justice RADACK and Justices Ryan lying flat in the shower, naked, with the showerhead JENNINGS and KEYES. aimed at her mouth. Ramirez turned the water off and sat Ryan up before calling an ambulance. Ramirez told the 911 operator to bring the cops because she felt “something just wasn’t right.”
While Ramirez was on the phone with 911 and helping MEMORANDUM OPINION Ryan, appellant was on the porch smoking a cigarette. Ramirez testified that appellant had changed clothes and EVELYN V. KEYES, Justice. was then wearing a different pair of shorts than the pair he had been wearing when Ramirez left the apartment *1 A jury found appellant, Dean Jerome Wood, guilty of earlier. When Ramirez asked appellant to help lift Ryan first-degree felony murder, and the trial court assessed his out of the bathtub, he calmly stated: “grandma’s dead.” punishment at ninety-two years’ confinement.1 In his sole When the paramedics arrived, Ramirez testified that point of error, appellant argues that the trial court abused appellant was being loud and “talking crap to the its discretion by admitting portions of his interrogation by ambulance people and the cop that was there.” Detective C. Abbondandolo and allowing the detective to testify about the interrogation. Officer Smith, a police officer who reported to the scene, testified that appellant was behaving in an erratic and We affirm. violent manner. He and the other officers detained appellant because they were worried he might hurt someone.
Background *2 Ryan’s autopsy revealed a lot of bruising, mostly concentrated on her face, head, forearms, and wrists. Dr. The complainant, Flora Ryan, moved to Houston in 2000, Chu, the medical examiner, testified that Ryan’s bruising after having been diagnosed with Alzheimer’s, to live was not consistent with a fall; rather, it was consistent with her daughter, Mary Ostlund, and her granddaughter, with her head being hit with a blunt object “at least four Julie Ramirez. Ryan, who was ninety-two years old in [times], four impacts, and quite likely many more than 2010, had a number of medical problems, including that.” In addition to the bruising, Ryan had a fractured toe
16 and ribs and vaginal lacerations that were likely caused by *3 Little subtle physical things that “some kind of blunt trauma, penetrating trauma to the happen in the body when someone vagina.” Dr. Chu concluded that the cause of Ryan’s is trying to mask the truth. The death was “blunt force injuries with cutaneous contusions, stress level seems to get elevated, or bruising of the skin, and vaginal lacerations.” The State and during those times their body also presented DNA evidence. Ryan’s DNA was found on makes movements that they can’t the inside of the shorts appellant had been wearing. control. Even though they’re trying Ryan’s and appellant’s DNA was found on beer bottles to deceive you in what they’re collected at the scene. saying, there are things that the body does that makes it quite At trial, the State called Detective C. Abbondandolo, a apparent that they’re not being homicide detective with the Houston Police Department, honest. to testify regarding his interview of appellant in connection with Ryan’s murder. Prior to Detective He described these involuntary movements as including Abbondandolo’s taking the stand, appellant objected to “the twitching of the eyes, perhaps a tear that fall out any testimony the detective might offer regarding his unexpectedly, a licking of lips, looking in a certain ability to tell whether a suspect was telling the truth. direction when you talk to them.” He emphasized that Appellant specifically argued that Detective every person is different. Abbondandolo’s assertions that he did not believe appellant’s statements during his interrogation should not Detective Abbondandolo then testified regarding his be admitted “because it invades the province of the jury. interview of appellant and described the procedures he They jury can look at [appellant’s] behavior on that video used, such as setting up recording equipment and reading and they can decide whether or not they think he’s telling appellant his Miranda warnings. Detective Abbondandolo the truth. They don’t need Officer Abbondandolo to tell testified that, contrary to his usual procedure, he did not ‘em.” The trial court overruled appellant’s objection, remove appellant’s handcuffs during the interview. He stating, “I believe that if the State lays the foundation believed, based on appellant’s facial expressions and about his training and experience and identifying truth physical behavior, that everyone would be safer if telling or not, that the jury can ... consider it ... since he’s appellant remained handcuffed. an expert when they decide to evaluate the witness and his or the defendant’s behavior on the video tape.” Appellant The State then sought to admit the video recording of sought, and obtained, a running objection to any appellant’s interrogation that was conducted by Detective testimony regarding Detective Abbondandolo’s beliefs Abbondandolo on the day following Ryan’s death. regarding appellant’s truthfulness during his interrogation. Appellant raised objections to various statements made by Detective Abbdondandolo in the video recording, such as Detective Abbondandolo first testified about the his statements to appellant, “I don’t think you’re telling “interviewing style” he used to question suspects: me the exact truth,” “I don’t think that you’re being honest with me,” and “[Y]our explanation doesn’t match What I like to do is talk to folks the physical evidence that’s there, doesn’t match what that are potential suspects for a Julie’s saying.” Appellant argued that these statements while before I actually talk to them were hearsay and that they invaded the province of the about the crime itself, to try to jury. The trial court overruled these objections and determine a little bit about them, to admitted the video recording of appellant’s interview. see how they answer questions that are not related to something that’s In the video, Detective Abbondandolo questioned terribly stressful but something appellant about the events leading up to Ryan’s death. that’s related to something that they Appellant stated repeatedly that he could not remember should be able to answer easily. much about what happened to Ryan because he had That way I can establish a baseline “blacked out” after drinking a large quantity of alcohol. for their physical behavior to pick Appellant repeatedly told Detective Abbondandolo that he up on points of deception when we found Ryan not breathing on the sofa and attempted to get to the more difficult parts of the perform CPR. Appellant did not recall how Ryan got in interview. the bathtub, he did not recall seeing any blood, and he stated that he would never hurt Ryan. He could not explain why Ryan had injuries to her vaginal area, but he Appellant interrupted to clarify that he had a running denied sexually assaulting her. objection to Abbondandolo’s testimony, and the trial court agreed. Detective Abbondandolo went on to testify generally about the “points of deception” he looked for In response to appellant’s account of what happened to when interviewing a suspect: Ryan, Detective Abbondandolo told appellant that he
17 noticed appellant was “breathing really fast” and “talking Detective Abbondandolo testified that his involvement really fast.” He told appellant, “And I don’t mean to insult with the case ended with his interview of appellant. you, but from what you’re telling me, I don’t think you’re telling me the exact truth.” He repeated this statement in The jury found appellant guilty, and the trial court various ways, telling appellant at different points in the assessed his punishment at ninety-two years’ interview, “I don’t think you’re being honest with me,” confinement. This appeal followed. and “Well, I don’t think you’re being straightforward with me.” When appellant asserted that he “must’ve blacked out,” Detective Abbondandolo stated, “I think you remember” and “I’m saying to you I don’t believe the blacked out thing.” Appellant persisted in stating that he Admission of Evidence did not know what had happened to Ryan. He stated at various points that he thought she died of a heart attack or Appellant complains that the trial court abused its that the police might have hurt her when they showed up. discretion in admitting the video recording of his interview with Detective Abbondandolo because the *4 After the video was played to the jury, the State detective made statements to appellant such as, “I don’t proceeded with its questioning of Detective think you’re telling me the exact truth.” Appellant also Abbondandolo, asking whether he observed any signs that argues that the trial court erred in allowing Detective appellant was intoxicated during the interview. Detective Abbondandolo to testify about his interrogation technique Abbondandolo stated that appellant did not appear to be generally and in allowing him to testify regarding the under the influence of any substances and had clear opinion he formed of appellant’s truthfulness during the speech. The State then asked: interrogation.
[State]: Now, you stated several times throughout the We review a trial court’s ruling admitting or excluding statement that you didn’t believe what the defendant evidence for abuse of discretion. Ramos v. State, 245 was telling you. Why didn’t you believe what he was S.W.3d 410, 417–18 (Tex.Crim.App.2008). We will telling you? uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law [Detective]: The defendant was able to provide us applicable to the case. Id. at 418; see also Burke v. State, with incredible details in great specifics about certain 371 S.W.3d 252, 258 (Tex.App.-Houston [1st Dist.] 2011, things, things that occurred that day, things that pet. dism’d) (holding that trial court abuses its discretion occurred in the past, but when we came to issues in admissibility ruling when its ruling is arbitrary or regarding the victim’s death, he wasn’t able to unreasonable). provide us with any details. His story changed dramatically from the bathing incident, whether he did or he didn’t. There were all these nebulous answers in what he had to say, when it came down to A. Video Recording of Appellant’s Interrogation issues regarding the death. Other things, he *5 During his interrogation of appellant, Detective impressed the heck out of me with his ability to Abbondandolo made statements such as “I don’t think recall the baseball score, what type of pills she took, you’re telling me the exact truth,” “I don’t think you’re things like that. It was a clear sign of deception. being honest with me,” and “I’m saying to you I don’t believe the blacked out thing.” At trial, appellant objected [State]: Were there any other physical body signs of to the admission of these portions of his video-recorded deceptions that you noticed while you were statement on the basis that they constituted hearsay and interviewing him? because they provided improper opinion testimony.
[Detective]: Yes.... Primarily it began with the Hearsay is “a statement, other than one made by the movement of the legs. We sat and had a discussion declarant while testifying at the trial or hearing, offered in for quite a while about easy things, about going to evidence to prove the truth of the matter asserted.” school, where are you from, and things like that, sat TEX.R. EVID. 801(d). Statements offered only to show motionless. Once we got down to the difficult their effect on the listener are not hearsay. See Young v. questions, you know, all of a sudden he had restless State, 10 S.W.3d 705, 712 (Tex.App.-Texarkana 1999, leg syndrome and his legs were all over the place. I pet. ref’d). Furthermore, statements made by police even asked him about it.... [W]hen he looked at me I officers during an interview are not hearsay if they are could tell he was looking through me and not offered only to give context to the interviewee’s replies, looking at me. Speaking incredibly fast was another even if the officers accuse the interview of lying. See Kirk sign where we’re going to blur over the issue, like v. State, 199 S.W.3d 467, 478–79 (Tex.App.-Fort Worth clogging one’s ability to hear with all sorts of words. 2006, pet. ref’d) (holding that trial court did not abuse its discretion by overruling hearsay objection to statement by 18 detective during tape-recorded interview that “I feel like witness opining directly on particular witness’s maybe you’ve been a little untruthful with me”). truthfulness); Reynolds v. State, 227 S.W.3d 355, 366 (Tex.App.-Texarkana 2007, no pet.) (holding that Here, Detective Abbondandalo’s statements were made in testimony “explaining how [witness] interviews children the course of his interrogation of appellant. The record and the steps taken to ask nonleading questions” does not supports a determination that the statements by Detective constitute opinion on witness’s credibility). Abbondandolo were not offered to prove the truth of the matters asserted. The trial court reasonably could have Assuming without deciding that Detective concluded that Detective Abbondandolo’s statements Abbondandolo’s testimony regarding his reasons for not were offered either to provide context for appellant’s believing what appellant was telling him during the statements or to show the effect of his statements on interrogation did constitute impermissible opinion appellant. Accordingly, we hold that the trial court did not testimony, the error was not harmful. abuse its discretion by overruling appellant’s hearsay objection. Under Rule of Appellate Procedure 44.2(b), we must disregard non-constitutional error that does not affect a Furthermore, appellant has not cited a case to us in which defendant’s “substantial rights,” that is, if upon examining a police officer’s investigative tactics during an the record as a whole, there is a fair assurance that the interrogation were considered improper opinion testimony error did not have a substantial and injurious effect or at trial, and we have found no such case. influence in determining the jury’s verdict. Tex.R.App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 Accordingly, we overrule appellant’s arguments regarding (Tex.Crim.App.2010). If the improperly admitted the admission of his video-recorded interview. evidence did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless. Coble, 330 S.W.3d at 280. In making this determination, we review the record as a whole, including B. Detective Abbondandolo’s Trial Testimony any testimony or physical evidence admitted for the jury’s Appellant also argues that the trial court erred in allowing consideration, the nature of the evidence supporting the Detective Abbondandolo to testify at trial regarding his verdict, and the character of the alleged error and how it interviewing technique in general and in allowing might be considered in connection with other evidence in Abbondandolo to testify regarding the basis for his the case. See id.; Motilla v. State, 78 S.W.3d 352, 355 opinion, expressed during the interrogation, that appellant (Tex.Crim.App.2002); James v. State, 335 S.W.3d 719, was not telling the truth. At trial, appellant objected to this 727 (Tex.App.-Fort Worth 2011, no pet.). testimony on the basis that it invaded the province of the jury and provided improper opinion testimony. The evidence of appellant’s guilt was overwhelming. See Motilla, 78 S.W.3d at 360 (holding that weight of The determination of a witness’s truthfulness lies solely evidence of defendant’s guilt is relevant factor in within the jury’s province. See Yount v. State, 872 S.W.2d conducting harm analysis). Appellant and Ryan were the 706, 709–10 (Tex.Crim.App.1993). Rule of Evidence 702 only two people in the apartment when Ryan sustained prohibits an expert witness from testifying that a the injuries that ultimately killed her. The apartment door particular witness is truthful. TEX.R. EVID. 702; see had a special lock to prevent Ryan from wandering away Yount, 872 S.W.2d at 712; Schutz v.. State, 957 S.W.2d and neither appellant nor Ryan had the key. Ramirez 52, 59 (Tex.Crim.App.1997). Non-expert testimony may testified that she left appellant alone with Ryan when she be offered to support the credibility of a witness by went to visit a neighbor, and when she returned, she found offering an opinion or reputation evidence as to the Ryan in the shower showing signs of serious injury. witness’s character for truthfulness or untruthfulness, but lay witnesses may not testify to the witness’s truthfulness The jury also had substantial physical evidence on which in the particular allegations. See TEX.R. EVID. 608(a)(1); to base its verdict. The medical examiner testified Schutz, 957 S .W.2d at 72. extensively regarding the cause of Ryan’s death, including blunt force trauma and lacerations to her *6 Detective Abbondandolo testified that he often starts vagina. Ryan’s DNA was found on the inside of interviews with simple questions unrelated to the crime in appellant’s shorts where appellant’s penis would have order to “establish a baseline for [the suspect’s] physical been in contact with the fabric, and both Ryan’s and behavior to pick up on points of deception when [they] appellant’s DNA was found on beer bottles collected from get to the more difficult parts of the interview.” This the scene. testimony addresses Detective Abbondandolo’s interrogation techniques generally and does not directly *7 Furthermore, the jury watched the video recording of comment on appellant’s credibility. See, e.g., Schutz, 957 appellant’s interview and was able to assess appellant’s S.W.2d at 60 (discussing prohibition against expert credibility for itself. Appellant testified that he found
19 Ryan on the sofa not breathing and that he attempted appellant’s claim that jury had difficulty reaching a CPR. He also admitted that he was drunk and “must have verdict. Furthermore, none of the requests for copies or blacked out” because he could not remember how Ryan physical exhibits sought Detective Abbondandolo’s ended up in the shower. Appellant did not testify at trial testimony. Rather, the jury reviewed the transcript of or admit any evidence regarding what might have appellant’s interrogation, Ostlund’s and Ramirez’s happened while he was “blacked out.” Thus, his testimony, and the physical evidence presented at trial. credibility was not a central issue in the case. And Detective Abbondandolo’s testimony about his Based on the entirety of the record, we have a fair perceptions of appellant’s truthfulness during the assurance that the alleged error did not influence the jury interview were relatively insignificant compared to the or that it had but a slight effect. See Coble, 330 S.W.3d at other evidence presented at trial. 280; Motilla, 78 S .W.3d at 360.
Appellant argues that the “lengthy deliberations” and the We overrule appellant’s sole issue. jury notes requesting a transcript of appellant’s interrogation, copies of Ostlund’s and Ramirez’s testimony, Ryan’s medical and autopsy reports, and a copy of the receipt showing what appellant purchased at the store shortly before Ryan’s death demonstrate that he Conclusion suffered harm. The record demonstrates that the jury deliberated for approximately five hours in considering We affirm the judgment of the trial court. the evidence adduced over four days during the guilt- innocence phase of trial. Under the circumstances of this case, five hours of deliberation does not support
Footnotes 1 See TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon Supp.2013) (providing elements of offense of felony murder); id. § 19 .02(c) (providing that offense is first degree felony).
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