Powell v. State ( 1995 )

OPINION

CAMPBELL, Judge.

At a trial held in the 1st District Court of Newton County in May 1991, a jury found appellant, James Rexford Powell, guilty of capital murder. See Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant’s trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b),¹ and the trial court sentenced appellant to death. Direct appeal to this Court was automatic under Article 37.071(h). We now affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence at trial established that on October 6, 1990, appellant abducted the victim, a ten-year-old girl, from an antique mall in Jefferson County. Appellant then strangled the victim wMe in the course of sexually assaulting her. The victim’s body was discovered later that day in Newton County. She was found with her hands tied together and a rope tied tightly around her neck, lying face down in a mud puddle. Semen was found in her vaginal cavity. After several witnesses identified appellant’s motor home as having been in the vicinity of the place where the victim’s body was found, appellant was arrested at his home in Orange County. Appellant does not challenge the sufficiency of the evidence supporting the finding of guilt or the assessment of punishment.

In ten points of error, appellant argues: that a prosecutor serving as a special assistant district attorney in Newton County in this case should have been disqualified; that appellant should have received a change of venue from Newton County; that evidence seized from appellant’s motor home in Orange County, pursuant to a search warrant issued in Jefferson County, should have been suppressed; that the trial court abused its discretion in allowing testimony concerning DNA evidence from a witness who was not trained in population genetics and who lacked knowledge of a computer program which produced the evidence on which she based her testimony; and that the trial court abused its discretion in allowing evidence at the punishment phase concerning the subject matter of a prior criminal trial in which appellant was acquitted.

In points of error five and six, appellant argues that the trial court erred in refusing to disqualify Paul McWilliams, a special prosecutor for Newton County in this case. Appellant contends that McWilliams should have been disqualified under either of two provisions of the Texas Constitution.

The first such provision, Article 16, § 14, states, in relevant part, that “all district or county officers [shall reside] within their districts or counties.” Appellant argues that assistant district attorneys are district officers, pursuant to Bighorn v. State, 141 Tex. Crim. 332, 148 S.W.2d 835 (1941). Appellant further argues that McWilliams was not qualified to serve as a prosecutor in the 1st District Court, since he did not reside within the 1st Judicial District.

The second provision of the Texas Constitution cited by appellant, Article 16, § 40, states, in relevant part, that “[n]o person shall hold or exercise at the same time, more than one civil office of emolument.” Appellant argues that the position of assistant district attorney is a “civil office of emolument,” within the ambit of Article 16, § 40, and cites as authority the case of Irwin v. State, 147 Tex.Crim. 6, 177 S.W.2d 970 (1944). Appellant argues that McWilliams was not qualified to serve as an assistant district attorney in Newton County because at the time McWilliams participated in appellant’s trial, he was employed as an assistant district attorney in Jefferson County.²

The applicability of the constitutional provisions cited by appellant turn on whether McWilliams, acting as an assistant district attorney in Newton County, was an “officer” or an “employee.” In Aldine I.S.D. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955), the Texas Supreme Court explained that “the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.” See also 67 C.J.S. Officers and Public Employees § 8(b) (1978).

An assistant district attorney acts subject to the control and supervision of the district attorney. In our view, an assistant district attorney is not a public officer, but rather a public employee. Therefore, the constitutional provisions cited by appellant are inapplicable to the facts of this case.

The cases which appellant cites, Bigham and Irwin, are not controlling. In Bigham, this Court determined that a deputy supervisor of the oil and gas division of the Railroad Commission was an “officer” within the context of a statute making it illegal for an “officer” to accept a bribe. Bigham is distinguishable from the instant ease, in that Big-ham concerned the meaning of the term “officer” within the context of the bribery statute, as opposed to the constitution.

In Irwin, this Court addressed how one becomes a de facto officer for Article 16, Section 40 purposes. In that ease, two Houston police officers had executed a search warrant by acting as deputy sheriffs. Irwin, 177 S.W.2d at 972. Because they did not continuously exercise the duties of deputy sheriffs, but only used those positions to execute a single search warrant, this Court held that they were not de facto officers and thereby avoided the constitutional issue over their capacities as police officers and deputy sheriffs that could have arisen because of Section 40. Id. at 974.

This case is easily distinguished from Irwin. McWilliams, who served as an assistant district attorney for Jefferson and Newton counties, acted as a state employee and not as a de facto officer for both counties. Appellant’s reliance on Irwin is therefore wholly misplaced. Points of error five and six are overruled.

In point of error ten, appellant argues that the trial court abused its discretion in refusing to grant his motion for change of venue. Appellant argues that he could not get a fair trial in Newton County due to pretrial publicity. Appellant makes this argument pursuant to the Sixth Amendment to the United States Constitution, Article 1, § 10 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.

At the hearing held on appellant’s motion for change of venue, appellant offered the following evidence in support of his motion: a videotape of news broadcasts by a Beaumont television station concerning the victim, the circumstances of her death, and appellant’s alleged involvement in the crime; a series of newspaper articles from the Beaumont Enterprise which discussed the victim, her disappearance, the finding of her body, the arrest and charging of appellant, and information concerning a previous incident in Louisiana for which appellant had been tried and acquitted; statistics showing the size of the viewing audience of the Beaumont television stations in Newton County; statistics showing the number of Newton County sub-seriptions to the Beaumont Enterprise; and statistics showing the number of peremptory strikes and challenges for cause exercised by appellant at voir dire. In rebuttal, the State offered the testimony of four Newton County residents, all of whom testified that, in their opinion, the appellant could receive a fair trial in Newton County.

For an accused to receive a fair trial consistent with the right to an impartial jury, a jury must determine his guilt or innocence based on the evidence admitted at trial and not on the basis of information provided by the media. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App.1992). A situation may arise, however, “in which pretrial publicity is so pervasive and prejudicial as to create a reasonable probability that an impartial jury cannot be empaneled even with the most careful voir dire.” Id.

A presumption of prejudice does not arise simply because a ease has been publicized in the media; jurors need not be completely uninformed concerning the facts of the case. Id. A defendant who seeks a change of venue has the burden of proving “the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful.” Nethery v. State, 692 S.W.2d 686, 694 (Tex.Crim.App. 1985).

We review the trial court’s decision, not to grant the appellant a change of venue, under an abuse of discretion standard, meaning the trial court’s decision concerning venue will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the trial court. Narvaiz v. State, 840 S.W.2d at 428. The videotape of television news broadcasts and newspaper articles introduced at the venue hearing by appellant indicate that the underlying facts and circumstances of this case were publicized by the Beaumont press during the week after the victim’s death, almost four months before the venue hearing and eight months before appellant’s trial. The record of the venue hearing does not indicate that appellant offered any evidence that the facts and circumstances of this case were covered, to any extent, by the Newton County press. In addition, neither the victim nor appellant were residents of Newton County. Finally, the State presented four Newton County residents who testified that, in their opinion, appellant could receive a fair trial in Newton County. Given the foregoing, we believe the trial court’s denial of appellant’s motion for change of venue was within the realm of reasonableness. Point of error ten is overruled.

In point of error one, appellant argues that the trial court erred in denying his motion to suppress evidence seized by officers executing a search and arrest warrant in Orange County that was issued by a magistrate in Jefferson County. The record shows that Judge Larry Gist, a district judge in Jefferson County, acting as a magistrate, issued a search and arrest warrant in Jefferson County. The warrant authorized the arrest of appellant, the search of appellant’s motor home, and the seizure of specified items from the motor home, including fingerprints, rope, blood, semen, hair, and clothing. A team of officers, consisting of officers from the Beaumont Police Department, the Orange County Sheriffs Department, the Newton County Sheriffs Department, and a Texas Ranger, executed the search and arrest warrant at appellant’s residence in Orange County.

Appellant argues that by issuing a search warrant to take effect in Orange County, Judge Gist exceeded his authority as magistrate. Appellant argues that the scope of authority exercised by a district judge when he acts as a magistrate is limited to the boundaries of the county in which his judicial district is located, pursuant to Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Crim.App. 1978).

The State argues that Judge Gist had jurisdiction to issue the search warrant. First, the State argues that Judge Gist had jurisdiction to issue the warrant because appellant could have been tried in Jefferson County, since appellant abducted the victim in Jefferson County. The State also argues, alternatively, that, if Judge Gist lacked jurisdiction to issue the search warrant, the officers who executed the warrant held a good faith belief that the warrant was based on probable cause, and that the search was valid pursuant to the good faith exception to the warrant requirement, as provided in Article 38.23(b) of the Texas Code of Criminal Procedure.³ At the motion to suppress hearing, the State also argued that the search was valid pursuant to the automobile exception to the warrant requirement.

In the instant case, assuming arguendo, as appellant contends, that Judge Gist lacked authority to issue a search warrant to be executed in Orange County, the search of appellant’s motor home was nevertheless valid pursuant to the automobile exception to the warrant requirement.⁴ See Amos v. State, 819 S.W.2d 156, 160 (Tex.Crim.App. 1991). An invalid search warrant does not preclude inquiry into whether the search can be upheld under a warrant exception. Id.

Under the automobile exception, an officer may conduct a warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime. Amos v. State, 819 S.W.2d at 161. The exception extends to all types of motor vehicles. The requisite factor for implementation of the automobile exception is the inherent mobility of a vehicle. See California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). In Carney, government agents searched, without a warrant, a motor home parked in a lot in downtown San Diego. Id. The defendant argued that he held a sufficient expectation of privacy in his motor home to require procurement of a search warrant by the agents prior to searching the motor home, and that the automobile exception to the warrant requirement did not apply. The Supreme Court rejected that argument, holding that the expectation of privacy in a motor home was low due to the extensive government regulation of motor vehicles, and that the automobile exception did apply to the motor home. Id. Pursuant to Carney, we conclude that the automobile exception to the warrant requirement applies to appellant’s motor home in the instant case.

At the hearing held on appellant’s motion to suppress, Officer Frank Coffin of the Beaumont Police Department testified that he assisted in preparing, and signed, the affidavit on which the search and arrest warrant issued by Judge Gist was based. Officer Coffin also testified that he, along with his team of officers, executed the search of appellant’s motor home and seized the items listed in the affidavit and search warrant.

The affidavit submitted to Judge Gist shows the following: that two eyewitnesses had seen appellant’s distinctive-looking motor home being driven on their property in Newton County on the afternoon of October 6, 1990, the day the victim was abducted; that two additional eyewitnesses had observed appellant’s motor home being driven from underneath a bridge at Cow Creek, where the victim’s body was eventually found, on the afternoon of October 6, 1990; that appellant had been at the antique mall from which the victim disappeared on the morning of October 6, 1990; and that, according to appellant’s wife, late on the evening of October 7, 1990, appellant had been contemplating leaving his residence in an attempt to evade police.

The officers who searched appellant’s motor home had probable cause to believe that the motor home contained evidence of a crime, as evidenced by the affidavit. Appellant’s motor home was used primarily as a vehicle, not as a residence. In fact, on the date of the victim’s disappearance, appellant was seen driving the motor home in the vicinity of the place where the victim’s body was found. Therefore, the search of appellant’s motor home was justified by the automobile exception to the warrant requirement, as explicated in California v. Carney. Point of error one is overruled.

In point of error number four, appellant argues that the trial court erred in refusing appellant’s request to poll the jury concerning an article which appeared in the May 25,1991 edition of the Beaumont Enterprise. The article concerned the testimony of State witnesses at a hearing held to determine the admissibility of DNA evidence. Appellant argues that the article inaccurately recounted the testimony from the hearing and that it prejudiced appellant by infringing on his right to an impartial jury.

The record shows that, prior to trial, but after the jury had been empaneled and sworn, appellant asked the trial court to poll the jurors to determine whether any of them had read the above-referenced article. The court refused, noting that the jury had previously been instructed not to read any newspaper articles or watch any television reports concerning the case. The record shows that the court repeated that instruction to the jury at the outset of the trial. Also, during the individual voir dire, each juror who was selected was individually instructed by the trial court not to read any newspaper articles or watch any television reports concerning the case. Nevertheless, appellant claims that the trial court’s refusal to poll the jury to determine whether any of the jurors had read the Enterprise article was error, because it “denied [him] the opportunity to initiate even a preliminary inquiry into whether any jurors had been exposed to the article.”

None of our precedent is directly on point with the issue raised by appellant in this point of error.⁵ Appellant cites the eases of Flores v. State, 472 S.W.2d 146, 148 (Tex. Crim.App.1971), and Brown v. State, 516 S.W.2d 145, 146 (Tex.Crim.App.1974), as support for his argument that the trial court should have asked the jurors whether they had read the Enterprise article. Those cases, however, do not require a trial court to poll the jury simply because a newspaper article appears concerning the trial and the defendant requests a jury poll.

The trial court in the instant case admonished the jury on numerous occasions not to read any newspaper articles concerning the case. In Haas v. State, 498 S.W.2d 206, 211 (Tex.Crim.App.1973), we upheld the trial court’s refusal to grant a mistrial based on the jury’s alleged exposure to a newspaper article concerning the trial. Our decision in Haas was based on repeated admonishments given by the trial court to the jury, similar to those given by the trial court in the instant case.

In the instant case, the trial court was faced with a decision: it could either deny appellant’s request for a jury poll concerning the contents of the Enterprise article, or it could grant appellant’s request, poll the jury, and risk exposing the jury to the existence of the article and its contents for the first time. We believe the trial court decided correctly. By refusing to poll the jury about the Enterprise article, and by reiterating its admonishments, the trial court did its best, under the circumstances, to preserve the integrity of the jury panel. Point of error four is overruled.

In points of error two and three, appellant argues that the trial court erred in admitting portions of the testimony of a State witness, Julie Cooper. Specifically, appellant argues that the trial court should not have allowed the testimony of Cooper, a molecular biologist, concerning probabilities of matching DNA banding patterns because: 1) the witness had not been qualified as an expert in the field of population genetics, and 2) the witness’ testimony was based on a computer program which had not been properly authenticated.

Appellant’s argument concerning Cooper’s lack of expertise in the field of population genetics has not been preserved for review. To be preserved for appellate review, a matter must be raised at trial by contemporaneous objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). In the instant case, the record indicates that appellant’s objection at trial to Cooper’s testimony did not concern her lack of qualifications in the field of population genetics. Therefore, that argument is overruled.

Appellant also failed to preserve error related to authentication of the computer program. The record reveals that the trial court admitted Cooper’s testimony concerning the results produced by the computer program upon the condition that the computer program be authenticated by the next State witness.⁶ The record further reveals that the computer program was not authenticated by the next State witness, Daniel Garner.

Under the doctrine of “conditional relevancy,” a trial judge may admit evidence that lacks authentication on the condition that the party offering the evidence authenticate it, or “connect it up,” at a later time. See Fuller v. State, 829 S.W.2d 191, 198-99 (Tex.Crim.App.1992); S. Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 104.2 (1993). If sufficient “connecting” evidence does not appear by the close of the proponent’s evidence, the opposing party must renew his original objection by a motion to strike the conditionally admitted evidence. Id. Failure to do so constitutes waiver by the opposing party for purposes of appeal. Id.

In the instant case, the record indicates that appellant failed to renew his original objection to Cooper’s testimony after Garner, or any other State witness, failed to provide testimony authenticating the computer program. Because appellant failed to renew his objection, the error is not preserved. Points of error two and three are overruled.

In points of error seven through nine, appellant argues that the trial court abused its discretion by failing to exclude, at the punishment phase, evidence of a prior attempted murder for which appellant had been tried and acquitted in Louisiana. Appellant argues that the admission of such evidence violated his rights under the double jeopardy clauses of the Fifth Amendment to the United States Constitution,⁷ Article 1, § 14 of the Texas Constitution,⁸ and Article 1.11 of the Texas Code of Criminal Procedure.

Lucille Jackson, a Louisiana resident, testified that, on August 2,1984, appellant came to her home and attempted to rape her. When she resisted, appellant choked her and then shot her “through the temples [sic].” As a result of this conduct, appellant was later tried for and acquitted of attempted murder.

Pursuant to Article 37.071(a) of the Texas Code of Criminal Procedure,⁹ a trial court has wide discretion in admitting evidence, including extraneous offenses, relevant to the jury’s determination of a capital defendant’s deathworthiness. Kemp v. State, 846 S.W.2d 289, 307 (Tex.Crim.App.1992). Extraneous offenses are admissible at the punishment phase of a capital trial whether adjudicated or unadjudicated. Id.

The purpose of the punishment phase of a capital murder trial differs substantially from the purpose of the guilt/innocence phase of a capital or non-capital trial. Likewise, the reasons why the State offers extraneous offenses vary depending upon the type of proceeding in which they are submitted. At the guilt/innocence phase of a trial, an extraneous offense may be offered for any number of reasons. See Tex.R.Crim.Evid. 404(b). The ultimate goal, though, for the State at guilt/innocence is to prove that the accused committed the charged offense. At the punishment phase of a capital murder trial, however, extraneous offenses are usually offered to show that the defendant is a future danger to society. To encourage the proliferation of all evidence relevant to a capital defendant’s deathworthiness, the burden of proof on the State with regards to extraneous offenses is lower when they are offered at the punishment phase of a capital trial. See Adanandus v. State, 866 S.W.2d 210, 233-34 (Tex.CrimApp.1993). When offering an extraneous offense at the punishment phase of a capital trial, the State need not prove all of the elements of the extraneous offense. Spence v. State, 795 S.W.2d 743, 759 (Tex.Crim.App.1990). Nor need the State prove beyond a reasonable doubt that the defendant committed the extraneous offense. Adanandus v. State, 866 S.W.2d at 234.

The federal double jeopardy clause of the Fifth Amendment prohibits consecutive prosecutions of an individual for the same offense. United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975). In the instant case, appellant was not retried for the same offense for which he was previously tried and acquitted in Louisiana; he was instead tried for and convicted of the capital murder of a ten-year-old girl. Evidence of the extraneous offense was offered by the State at the punishment phase of appellant’s trial merely to assist the jury in its determination of appellant’s death-worthiness, specifically to determine whether appellant posed a future danger to society, not to prove beyond a reasonable doubt that appellant committed attempted murder of Ms. Jackson in Louisiana.

We conclude that the double jeopardy clause of the Fifth Amendment was not violated in the instant case by the trial court’s decision to admit Jackson’s testimony concerning appellant’s extraneous offense. We therefore reject appellant’s federal double jeopardy argument.

Concerning appellant’s Texas constitutional claim, appellant has failed to provide sufficient argument or authority as to the protection provided him under Article 1, § 14 of the Texas Constitution, or how the protection offered him under that provision differs from that of its federal counterpart. Therefore, pursuant to Texas Rules of Appellant Procedure 74 and 210, appellant’s Texas constitutional claim is overruled. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex.Crim.App. 1992).

Appellant also claims that the trial court’s admission of his extraneous misconduct for which he was tried and acquitted in Louisiana violated Article 1.11 of the Texas Code of Criminal Procedure, which provides that “[a]n acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense.” In the instant case, appellant was not retried for the offense for which he was acquitted in Louisiana. Nor does the punishment phase of appellant’s capital murder trial constitute a “second trial or second prosecution” for that misconduct. We therefore reject appellant’s claim based on Article 1.11 of the Texas Code of Criminal Procedure. Points of error seven through nine are overruled.

The judgment of the trial court is AFFIRMED.

OVERSTREET, J., concurs in the result.

1 . At the time of appellant’s trial, Article 37.071 provided in relevant part:

(b) On conclusion of the presentation of the evidence [at the punishment phase], the court shall submit the following three issues to the jury:

(1)whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

The record reflects that only issues (b)(1) and (b)(2) were submitted to the jury at appellant’s trial.

2 . The record shows that McWilliams was formally sworn and “deputized” as an assistant district attomey of Newton County by Charles Mitchell, the District Attorney in Newton County.

3 . Tex.Code Crim.Proc. Art. 38.23(b) provides:

It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith upon a warrant issued by a neutral magistrate based on probable cause.

4 . If the trial court’s decision is correct on any theory of law applicable to the case, it will be sustained on appeal; especially if the decision concerns the admissibility of evidence. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).

5 . But cf. Bell v. State, 724 S.W.2d 780, 797-98 (Tex.Crim.App. 1986). In Bell, articles about the appellant’s alleged involvement in a capital murder appeared in local newspapers during the jury selection process. The trial court refused to question the seven jurors who had already been selected to serve about whether they had read the articles. The appellant in that case argued that the trial court’s refusal to question those jurors about the articles constituted error. We disagreed, citing the appellant's failure to raise the issue of jury misconduct in a motion for new trial.

6 .At trial, the following exchange occurred during the testimony of Julie Cooper, State witness:

Prosecutor: So, did you multiply all those numbers out on the computer?

Cooper: Yes, the computer did the multiplying. Prosecutor: And what did you come up with? Defense counsel: Objection, Your Honor. He’s still not authenticated the program in the computer.

Prosecutor: Well tie — we'll—well tie that up with the next witness.

The Court: The objection's overruled. You may answer the question.

7 . The Fifth Amendment to the United States Constitution provides: “No person shall_be subject for the same offence to be twice put in jeopardy of life and limb.”

8 . Article 1, § 14 of the Texas Constitution provides:

“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

9 . Article 37.071(a) of the Texas Code of Criminal Procedure provides:

Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court ... before the trial jury as soon as practicable. In the proceeding, evidence may be presented ... as to any matter that the court deems relevant to sentence.