Jerry MacK Newland v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00172-CR
JERRY MACK NEWLAND,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2008-2138-C2
OPINION
Bobby Evans, an Animal Control Officer for the City of Bellmead, was found shot
to death in the city’s animal shelter. The case went unsolved for seven months before
Jerry Mack Newland and another were identified as suspects in the shooting and
arrested. Newland made it known to several people, including inmates in prison and
the McLennan County jail, that he shot Evans.
Newland was convicted of murder and sentenced to life in prison. See TEX.
PENAL CODE ANN. § 19.02 (West 2003). Because the error in admitting evidence of a
threat against a witness was harmless and because the error, if any, in admitting
hearsay testimony was cured, the trial court’s judgment is affirmed.
EVIDENCE OF A THREAT
In his first issue, Newland argues that the trial court erred in allowing the State
to introduce evidence that a witness had been threatened by an unknown person where
such evidence did nothing to bolster the witness’s credibility and was highly
prejudicial.
Heather McHargue was the only witness to testify who was at the scene at the
time of the murder. Her testimony placed Newland, who did not testify, at the scene.
On re-direct examination, the State asked McHargue if she knew any active members of
the Aryan Brotherhood. Newland objected. After a bench conference that was not
recorded, the parties conferred in the trial court’s chambers. There, the State explained
that McHargue had been threatened by an unknown person who was a member of the
Aryan Brotherhood, that she knew Newland was a member of the Aryan Brotherhood,
and that the testimony was relevant because McHargue’s credibility had been attacked
on cross-examination. Newland protested, arguing that the evidence of the threats was
irrelevant and that whatever probative value it had would be outweighed by its
prejudicial effect. The trial court overruled Newland’s objections and allowed the
following testimony.
Q. And are you aware of members of the Aryan Brotherhood that are
here in the Bellmead area and the Waco area?
A. Yes, ma'am.
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Q. Okay. Are you aware if the man you know as Dusty, if Jerry Newland
is a member of the Aryan Brotherhood?
A. Yes, ma'am.
Q. Now, we had talked and you had come to interview with us before; is
that correct?
A. Yes, ma'am.
Q. And at some point, Heather, did you mention an incident from
someone-that someone came to your house in reference to you testifying?
A. Yes, ma'am. That's been months if not a year or so ago.
Q. Months or a year ago. And can you, without going into what he told
you, can you -- can you tell the jury about that?
A. I was at my house with my children and I had -- my doorbell rings
and a guy -- it was a big -- a big guy had a tattoo, you know, on his neck.
And that's the only tattoo I could see at the time. He told me that it would
be the best of my interest just to leave well enough alone as far as that
murder trial goes with the dogcatcher.
Q. Did you take that conversation to be in a threatening manner?
A. Yes.
Q. You talked about tattoos. What kind of tattoo did you see?
A. They all look like a green mess to me. But it's -- he just had a tattoo,
you know, a tattoo on his neck. You could tell it went around -- around
the back of his arm, shoulder.
Q. Okay. And so that the record is clear, you have no knowledge that
Dusty or Jerry Newland sent that person out?
A. No.
Q. Okay. And just that this incident happened?
A. Right.
Newland v. State Page 3
Newland argues that the testimony about the threat from a third party was not
relevant because it did not bolster McHargue’s general credibility; and he argues in the
alternative, if it was relevant, the probative value of the testimony was outweighed by
the danger of unfair prejudice. See TEX. R. EVID. 401, 403.
Bolstering the credibility of a witness has traditionally been the attempt to use
prior consistent statements by the same witness to enhance the witness’s credibility.
"Bolstering" has been defined, however, as "any evidence the sole purpose of which is to
convince the factfinder that a particular witness or source of evidence is worthy of
credit, without substantively contributing 'to make the existence of a fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence.'" Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009)
(quoting Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993)). In other words,
bolstering is the introduction of evidence that the witness is believable without that
evidence being relevant to the proceeding. Thus, bolstering, generally, is prohibited.
When a witness's credibility has been attacked by any form of impeachment,
however, the sponsoring party may rehabilitate the witness but only in direct response to
the attack. Michael v. State, 235 S.W.3d 723, 726 (Tex. Crim. App. 2007). "The wall
attacked at one point may not be fortified at another and distinct point." Id. (quoting
CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE, § 49 at 116 (2d ed. 1984)).
McHargue was impeached by prior inconsistent statements, and her memory of some of
the events about which she testified was questioned. The State offered no explanation
as to how the evidence of a threat, especially one not made by Newland, was a direct
Newland v. State Page 4
response to the subject of McHargue’s impeachment. After reviewing the record, we
fail to see how this threat evidence was relevant to rehabilitating McHargue’s
credibility. See United States v. Cooper, 314 Fed. Appx. 729, 730 (5th Cir. 2009) (“When it
is not known who made or caused that threat, at least absent some special circumstance
not present here, evidence that a witness has been threatened would generally be
inadmissible.”)
Even if the evidence was relevant, we find that the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. See TEX. R.
EVID. 403. "Probative value," means more than simply relevance. Gigliobianco v. State,
210 S.W.3d 637, 641 (Tex. Crim. App. 2006); see Montgomery v. State, 810 S.W.2d 372, 390
(Tex. Crim. App. 1990) (op. on reh'g). It refers to the inherent probative force of an item
of evidence--that is, how strongly it serves to make more or less probable the existence
of a fact of consequence to the litigation--coupled with the proponent's need for that
item of evidence. Id. “Unfair prejudice" refers to a tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one. Id.; Montgomery
v. State, 810 S.W.2d at 389. Evidence might be unfairly prejudicial if, for example, it
arouses the jury's hostility or sympathy for one side without regard to the logical
probative force of the evidence. Id.
Newland admits that he has not found any Texas case law regarding the
probative value or prejudicial effect of evidence of a threat by a third party. The State
provided no specific case law either. Nor have we located any. Newland has, however,
pointed us to Federal case law that is instructive in this area. We agree with the 7th
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Circuit that trial courts must carefully consider the probative value of threat evidence
that is to be admitted for the purpose of assessing the credibility of witnesses. United
States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996). We also agree that threat evidence has
extremely limited probative value towards credibility, unless the evidence bears
directly on a specific credibility issue regarding the threatened witness. Id. Evidence of
threats on witnesses also can be highly prejudicial, especially when there is no
connection between the defendant and the threat. See id.; Dudley v. Duckworth, 854 F.2d
967, 970 (7th Cir. 1988); United States v. Guerrero, 803 F.2d 783, 785 (3rd Cir. 1986).
In this case, the threat evidence was not offered directly to show evidence of
guilt. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (An attempt to
tamper with a witness is evidence of "consciousness of guilt."). Rather, it was offered
for the purpose of bolstering McHargue’s testimony. Yet, there was no specific
credibility issue verbalized by the State that would require introduction of the threat
evidence. On cross-examination, McHargue was generally impeached by prior
inconsistent statements. Her memory of some of the events about which she testified
was also questioned. The State did not need the threat evidence. Further, the threat
was non-specific. McHargue stated that a “big guy” came to her house and told her
that it would be in her best interest just to leave well enough alone. The threat occurred
6 months to a year before her testimony and occurred after Newland and his co-
defendant were arrested for the murder. There was no testimony that the threat was for
Newland’s or his co-defendant’s benefit. In fact, the State made a point to inform the
jury that Newland did not send this person to make the threat. Also, although
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McHargue was allowed to testify that Newland was a member of the Aryan
Brotherhood, her testimony was very unclear as to whether the person who threatened
her was also a member of the Aryan Brotherhood. McHargue only testified that the
person had a tattoo on his neck that was a “green mess.” She never clarified what that
tattoo symbolized.
While we are not prepared to say that all threats by third parties are not
admissible, it appears the probative value for bolstering this witness’s testimony with a
non-specific threat not linked to the defendant, other than generally, and gang
affiliation without being able to establish that the person making the threat was in the
same gang as the defendant, and which may have occurred a year before trial is very
low and the danger of unfair prejudice is high. Therefore, it was error to admit
evidence of the threat.
We must next determine whether the admission of the threat evidence was
harmless under Rule 44.2(b). See Prible v. State,175 S.W.3d 724, 737 (Tex. Crim. App.
2005); TEX. R. APP. P. 44.2(b). Rule 44.2(b) provides that any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded. TEX. R. APP. P.
44.2(b). After reviewing the record, and given the other evidence of guilt, including
numerous statements to others by Newland against his interest, we hold the error did
not affect Newland’s substantial rights and was, therefore, harmless. See id.; see also
United States v. Cooper, 314 Fed. Appx. 729, 731 (5th Cir. 2009); United States v. Thomas, 86
F.3d 647, 655 (7th Cir. 1996).
His first issue is overruled.
Newland v. State Page 7
HEARSAY
In his second issue, Newland complains that the trial court erred in allowing the
State to introduce a hearsay statement of Lee Rhodes1 through his wife, Kim, which did
not admit involvement in any type of criminal activity and was not admissible as a
statement against interest. On direct examination, the State asked Kim whether Rhodes
said “anything about what had happened in the field with the bag” that contained a
tank of anhydrous ammonia. Newland objected, stating that what Rhodes told Kim
was hearsay. In response to the objection, the State explained that the statement went to
Rhodes’ mental state and that it was a statement against his interest. The trial court
overruled Newland’s objection. The following testimony was then elicited by the State.
Q. Did he tell you what had happened in the field where the bag was
hidden?
A. I don't recall, to be honest. I really don't recall to be honest with you.
Q. Okay.
A. I mean, I know that he said that something had happened and that he
had to get the bag back because it had -- it had his name on it.
Q. Okay. He said that something had happened in the field and he had
to get the bag?
A. Uh-huh.
Q. Okay.
A. Because it had his name on it.
(Emphasis added).
1 Rhodes had committed suicide almost two months after the murder.
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On cross-examination, Kim was asked if she and her husband went back to look
for the tank after the murder of Bobby Evans. The following exchange occurred then
between Kim and Newland’s counsel.
Q. Okay. And do you even remember if it was after the -- the murder of
Bobby Evans?
A. Yes, because he said something had happened and he had to get the tank
because it had his name on it.
Q. Okay. But do you know if this was after the -- the murder? Did you
know that that's where the -- that there had been a murder out there?
A. I don't necessarily know if it was a murder. I just know that something
had happened because he was very adamant about going to find the tank
because it had his name on it.
Q. Okay. And what he told you is that his name was on the --
A. The bag.
Q. -- the bag, correct?
A. Uh-huh.
Q. Which his name was Vernon Rhodes, correct?
A. Yes.
(Emphasis added).
Although Kim’s answers which contained the statement, “something had
happened” were non responsive to Newland’s questions, Newland did not object.
To preserve error in admitting evidence, a party must make a proper objection
and get a ruling on that objection. TEX. R. APP. P. 33.1; Lane v. State, 151 S.W.3d 188, 193
(Tex. Crim. App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)).
Newland v. State Page 9
However, "[a]n error [if any] in the admission of evidence is cured where the same
evidence comes in elsewhere without objection." Id. See also Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998) ("Our rule . . . is that overruling an objection to evidence
will not result in reversal when other such evidence was received without objection,
either before or after the complained-of ruling.").
Although Newland initially objected to the alleged hearsay statement, he elicited
the same information from Kim on cross-examination. Thus, error, if any, in admitting
the statement to Kim by Rhodes that “something had happened” was cured when Kim
testified to the same statement without objection on cross-examination.
Accordingly, Newland’s second issue is overruled.
CONCLUSION
Having overruled each issue presented on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 15, 2011
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