Norma Jean Clark v. State ( 2015 )

Opinion issued January 13, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00373-CR
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NORMA JEAN CLARK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1295757
MEMORANDUM OPINION
A jury found appellant, Norma Jean Clark, guilty of murder and assessed
punishment at 25 years’ confinement. In five points of error, appellant contends
(1) the evidence is insufficient to support her conviction, (2) her trial counsel made
an error amounting to ineffective assistance of counsel, (3) the trial court erred in
admitting certain scientific testimony, (4) the trial court erred in admitting
speculative testimony, and (5) the trial court erred in overruling defense counsel’s
objections to improper argument at closing. We affirm.
BACKGROUND
On April 22, 1987, Edmund Clark was murdered, shot while sleeping in his
own bed. At the time, police suspected appellant, his wife, but no charges were
ever brought against her. In 2008, during a review of cold cases in Harris County,
a forensic examiner saw what he thought looked like microscopic blood spatter on
appellant’s nightgown, so the case was reopened. Appellant was extradited from
Tennessee where she had been living, charged with Clark’s murder, and ultimately
convicted. The following is a summary of the evidence presented at trial.
The immediate aftermath of the murder
Around 4 a.m. on the morning of the murder, Judith Manack was awaked by
a banging on the door that led from her backyard to her bedroom. Judith’s
husband looked out and said, “My God, I think it’s Norma.” Appellant was the
Manacks’ neighbor and lived behind them through some dense woods. The
Manacks let appellant in the house, and she kept saying, “Oh, my God, oh, my
God. I heard shots. I heard shots.” Judith’s husband called the police.
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Appellant was shaking and said she was going to throw up, so Judith showed
her to the master bathroom, where she was sick. When she left the bathroom 30 to
45 minutes later, the Manacks called appellant’s daughter, Tammy, and appellant
then explained what had happened. She told them that she had been sleeping
upstairs in a spare bedroom when she heard gunshots. Appellant said that she ran
down the stairs, tried to get out the kitchen door, but it was locked, so she fled
through the garage. Appellant told the Manacks that she had run through the
woods to reach their house, but her nightgown and feet were clean.
When Tammy arrived at the Manacks’ home, appellant hugged her, which
Judith Manack found strange because appellant had been complaining that she had
arm pain and could not use her arm just moments before. Appellant told Judith
that she was afraid the police would blame her for the murder, to which Judith
replied, “You don’t have anything to worry about, you know, if you weren’t
shooting a gun.” Judith was surprised when appellant told her that she had, in fact,
been shooting a gun because Clark wanted her to learn how to shoot. Judith
thought it was odd that appellant would have been out shooting a gun because she
had missed work with bronchitis. While she was at the Manacks’ with appellant,
Tammy pulled out a piece of paper with three names—two doctors and one
attorney. Appellant later called her doctor from Judith’s house.
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The police responded to the call and went first to appellant’s home. The
front door was locked, but they found a door leading into the garage ajar, so they
went in the house and began searching each room. In the master bedroom, they
found Edmund Clark shot to death in his bed. He had been sleeping on his
stomach with the blankets tucked in and pulled up around him, and had suffered a
gunshot wound to the back and another to the head. No one had been sleeping next
to him, but a bed upstairs had been slept in. No one else was in the house and no
alarm had gone off, even though the house had an alarm system. There were no
signs of robbery. Appellant later told Judith that she had gone out to feed the dog
and had forgotten to set the alarm when she came back in.
A crime scene officer processed the crime scene and recovered a Charter
Arms undercover .38 caliber revolver with three live rounds and two spent
cartridges in it, which was sitting on the chest of drawers near Clark’s body. At
trial, Clark’s son identified the revolver as his father’s gun, which they had used
for target practice. Police later determined that the gun was registered to a Michael
Todaro. There were also 28 shotgun shells on the chest of drawers and a shotgun
leaning next to it. A .25 caliber Beretta pistol was recovered from a nearby drawer
in a nightstand. The officer also took possession of the sheets, comforter, and
pillowcase from Clark’s bed. By the time of trial, the comforter had been lost.
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Detective A. Rossi was assigned to investigate the case, so he went to the
Manacks’ house to meet with appellant. Rossi testified that appellant was very
reluctant to talk with him, though she did sign a consent-to-search form so that the
police could search her home. Rossi noted that appellant was wearing a blue
nightgown, and, even though she claimed to have traveled through the woods to
the Manacks’ home, the gown was clean. Appellant agreed to come to the police
station to give a statement after she had changed clothes. However, appellant
never showed up. When she left the Manacks’ house, Judith thought appellant was
going home to change and then going to the police station. Instead, appellant soon
returned to Judith’s house with her nightgown, which she asked Judith to wash
because she was going to be too busy taking care of things and her washer was
broken. Judith did not wash the garment, but instead folded it up and later turned it
over to police.
The afternoon of the murder, Clark’s friend, Paul Parris, came by and drove
appellant to the bank “because usually when people die, or get killed, the banks
lock up all your stuff.”
Later that day, Rick Brass, appellant’s attorney, called Detective Rossi and
they discussed appellant coming in to give a statement. When they never showed
up, Rossi learned that appellant had been admitted to the hospital, so he went there
to speak with her the next day. Tammy, who was at the hospital with appellant,
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would not let Rossi in the room, but then came back out and said appellant wanted
to talk to him, but not about the case. Rossi would have liked to have tested
appellant’s hands for gunshot residue [GSR], but he testified that “she wasn’t very
cooperative,” and she had already showered. Rossi later obtained a grand jury
subpoena in an effort to obtain appellant’s statement, but appellant never appeared
before the grand jury.
The relationship between appellant and the deceased
Several witnesses testified about the relationship between appellant and
Clark. John Baff worked at the same company as Clark, and the two were friends.
The night of the murder, Clark went to Baff’s house, where the two discussed
appellant’s and Clark’s relationship. Clark was unhappy with the relationship and
the financial strain it was placing on him. He felt that appellant’s antique business
was placing a financial burden on the marriage. Clark also had issues with
appellant’s son, Mark, and had banned him from their house. While Clark was
visiting Baff, he called and left appellant a voice mail. He told Baff that he
intended to divorce appellant. Baff testified that “[Clark] kind of indicated to me
that he was going home to lay it on the line, pursue what he had told me he was
going to do.”
Judith Manack also testified about the relationship between appellant and
Clark. Judith testified that appellant seemed to be jealous of the time that Clark
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spent with his children. She was also unhappy that Clark would not give her more
money and told Judith that he verbally abused her. Judith believed that Clark was
mean because of appellant’s complaints, but her own observations were that Clark
was considered and even-tempered. A week before the murder, appellant told
Judith that she had received information that Clark was moving property into his
own name. She told Judith that her divorce from her first husband had left her
penniless and that she “would be damned if she would go through another one and
end up with nothing.” Appellant “didn’t want to be stuck with nothing again in the
divorce if [Clark] divorced her.” During the same conversation, appellant told
Judith about a “plumber with Mafia ties from Florida” that she believed was
threatening Clark. However, she did not seem very worried about Clark, but was
more concerned with him moving property into his own name. Judith also testified
that she visited appellant in the hospital the day after the murder and was surprised
to find out that appellant had already had Clark’s body cremated.
Dr. G. Aubert, a chiropractor and appellant’s boss, testified that appellant
told him she needed to work because she was a cancer patient and was receiving
chemotherapy treatments that precluded her from working full-time. Appellant
worked for Aubert for approximately one month before the murder. She told
Aubert that appellant was a “tightwad” and would not give her money that she
needed for groceries. She “was always complaining about Ed, what a bad guy Ed
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was, how miserable she was.” One day Aubert wrote a note to cheer appellant up
that said, “Sorry about Ed.” The note was found in appellant’s house after the
murder. Appellant had also told Aubert about having heard that Clark was
transferring assets in anticipating of filing for divorce. She also mentioned that
Clark was having an affair.
On the morning of the murder, appellant called Aubert and told him about
the murder. He offered to help her financially, and she told him that she had an
attorney who had told her that police wanted to check her for gunshot residue.
Appellant told Aubert she could not allow such a test because she did have gunshot
residue on her hands as she had recently fired a gun at target practice. Aubert
found it odd that appellant would be shooting target practice because she had been
off work sick. Appellant also asked Aubert whether he could find a doctor to
admit her to the hospital. She later told him that her own doctor had had her
admitted. It was Aubert’s impression that appellant was admitted to the hospital to
avoid giving a statement or having gunshot residue tests performed. Five days
after the murder, appellant asked to borrow $10,000 from Aubert. She claimed she
was broke because she spent $3,000 to have the Ed’s body cremated. Aubert
declined to loan her the money.
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Forensic testing in 1987
Reports showed that the long nightgown, a robe, and a short nightgown were
submitted to the DPS laboratory in April 1987 for GSR analysis. Back then
analysts used the Griess method, which required that the garments be treated with a
chemical before the analyst laid a piece of photo paper on it and applied a hot iron
to the paper in hopes of transferring the phosphates from the gunpowder primer
onto the photographic paper. The Griess method used harsh chemicals likely to be
destructive of any blood, and the heat from the iron could also destroy biological
material. Analysts applied the chemical in a non-uniform manner so some parts
became more saturated than others with the chemicals. The cuffs of the nightgown
then went to the Harris County Forensics Center in May 1987 for more GSR
testing, but the results were inconclusive. In 1987, the technology did not produce
any physical evidence to establish that appellant committed the murder. The
homicide investigator saw some blood spatter on the comforter, but he saw no
visible spatter on appellant’s clothing. Although never excluded as a suspect,
police did not charge her at the time of the murder.
Forensic testing in 2008
In 2008, the Harris County Sheriff’s Office Cold Case Squad renewed the
investigation into Clark’s murder. Another investigator working with the squad
requested appellant’s nightgown to search for biological material, and he reviewed
9
the old forensic reports. That investigator had training and experience in blood
impact spatter evidence. He first viewed the gown with his naked eye and then
with a microscope. A gunshot wound may cause high velocity impact spatter,
consisting of fine mist particles that cannot be seen by the naked eye. Those
particles usually travel less than four feet before falling onto the surface beneath
them. The resulting particles are one millimeter or less. The microscope the analyst
used to search for the particles which would not have been available to the Harris
County Sheriff’s Office employees in 1987. It magnified the nightgown, he
photographed it, and he saw what looked like blood on the gown’s fibers. The
pattern was consistent with high velocity impact spatter (HVIS) which was
traveling with enough force to penetrate the fibers. A head wound is likely to
produce a HVIS because when the weapon is fired the pressure from the bullet
penetrating the skull, along with the gasses from the gun, force blood and
biological material out of the wound. Consistent with this explanation, the officer
noticed a bone fragment in the bedding crime scene photos. Ultimately, he found
roughly 100 or more microscopic stains on the gown that appeared consistent with
blood stains. If blood, the HVIS was consistent with appellant’s nightgown being
within four feet of the shooting. The officer attempted to review the comforter for
similar stains, but could not locate it. The officer tested one spot on the gown with
10
a presumptive chemical test for blood and it reacted positively. He then sent the
gown to the Harris County Institute for Forensic Science for additional testing.
The State had an additional blood spatter analyst testify to his analysis of the
stains. He explained the differences in pattern between an exit wound from a
gunshot and back spatter. He also had expertise in forensic photography, and he
documented his review of the gown with photographs also identifying a mist
spatter on it. Using a particular wavelength, some of the stain fluoresced
inconsistent with blood, but possibly explained by chemicals used on the garment.
However, others stains absorbed light consistent with a blood stain. He concluded
that if one of the stains was confirmed as blood, the consistency of the pattern with
the remaining stains was sufficient to call it a bloodstain pattern.
The second analyst saw only 55 stains, but accounted for the difference by
assuming dried blood can flake off of fabric as it is moved, packaged, and
reviewed. The largest microscopic stain he reviewed later flaked off. He also
considered the bone fragment documented in the crime scene photographs as
evidence of blow-back from the head wound.
A DNA analyst from the Harris County Institute of Forensic Sciences tested
some of the stains on the nightgown and bedding. DNA testing was not available in
Harris County in 1987, and earlier testing and environmental conditions may affect
her ability to recover DNA. She tested the dark stains that had reacted
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presumptively positive for blood, but her confirmatory testing using Hematrace
confirmed only one spot as blood. Although sensitive, the Hematrace test still
requires a sufficient amount of blood or it has a negative result. Hematrace tests for
human blood, but also shows positive for upper primate blood and ferret blood.
She tested eight spots from different areas, all with negative results. The one
positive test came from the front of the nightgown. When the analyst tested a
cutting from the large blood-like circle on the sheet after a presumptive positive
test, it also tested negative on the confirmatory test. None of the stains on the bed
sheet taken from above the back wound tested positive for human blood after 26
years in storage and past testing. Over time, storage conditions can degrade the
hemoglobin that the tests identify. Testing on the nightgown found no detectable
DNA. The nightgown also underwent additional GSR analysis at the Harris County
Institute for Forensic Sciences. The Director of Physical Evidence explained the
changes to GSR analysis since 1987. The 1987 test used an atomic absorption
analysis, which was a technique for analyzing whether there was barium, lead, and
antimony, but the analysis required a bulk recovery. Now they test using S.E.M
testing, which seeks only the individual particles. GSR is easily transferable
affecting the ability to collect it. The director’s testing of the nightgown and
packaging in 2011 revealed nine lead particles, but only one characteristic of GSR.
He found one particle with lead, barium, and antimony, classifying the result as
12
inconclusive. Standards considered one particle insufficient to establish the
garment’s presence for a weapon’s discharge because it could result from
accidental secondary contact. He retested and found a second particle, but a
positive test requires three for reasonable scientific certainty that the garment was
present for a firearm’s discharge. Studies showed that the statistical probability of
having a single GSR particle on a person is 1 in 81 people, but the probability of
two is 1 in 10,000 people, and the probability of having three particles is 1 in
1,000,000. The particles are easily dislodged, and the Griess method of testing
done on the gown could cause an even greater loss.
A firearms examiner tested the Charter Arms revolver, which fired +P
rounds holding more gunpowder than average ammunition to push the projectile
out of the barrel of the weapon with greater force. Consistent with the 1987
analysis, the Charter Arms revolver fired the two casings recovered from it.
An assistant medical examiner reviewed the autopsy performed on Clark. He
had stippling on the head wound, indicating the shot came from fairly close range,
usually not more than 18 inches. A .38 caliber bullet was recovered from the front
left side of Clark’s brain. The discharge came from directly behind his head on the
left side. The head wound would have been fatal, but Clark could have had some
involuntary body movement afterwards because the bullet did not sever the
brainstem. He had a second entrance wound to the left side of his back. The holes
13
in the bedding were consistent with the wound positions on Clark’s body. No
stippling was visible on the wound inflicted through the comforter, but
photographs showed a substance consistent with gunpowder on the comforter,
which was also consistent with the weapon firing from 18 inches or less.
Defensive theory about other threats against Clark’s life
The defensive theory at trial was that someone else had been threatening
Clark and was the murderer, not appellant. In support of this theory, appellant
sought to have admitted an audiotape of a message that a male voice left on her
answering machine shortly before Clark’s murder on which someone threatened
Clark’s life. The tape had been recovered by appellant’s attorney at the time, Rick
Brass, and kept in his office for decades. However, unable to authenticate the tape
through Brass’s testimony without risking the waiver of the attorney-client
privilege, defense counsel chose not to admit it at trial. There was testimony,
however, about the tape. Judith Manack testified that appellant asked her to listen
to it, which she did. Judith believed that the person on the tape was appellant’s
son, Mark, who had been kicked out of the house.
There was evidence of two prior threatening incidents involving the Clarks.
In 1983, four years before the murder, the Clarks’ house was vandalized. While
Clark and appellant were out at dinner, someone came in the house, spray-painted
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everywhere, ripped a picture of Clark, and left a threatening note made of cut out
letters.
Then, in 1986, about six months before the murder, Clark was assaulted
while he slept on the sofa in his home. According to his friend, John Baff, Clark
“woke up and saw some kind of a shadow, or something standing behind him, or at
the end of the couch. When he came to he was hit over the head.” As a result of
the attack by the unknown assailant, Clark had to get stitches. Baff thought
appellant might have been the attacker and asked Clark about it, but Clark thought
appellant’s son, Mark, had done it.
There was also the suggestion that a plumbing contractor from Miami, Billy
Salyers, might have had a dispute with Clark. Thus, the State called Salyers, who
admitted that, a few days before the murder, he had threatened Clark’s life after
Clark fired him from a job in Miami. Salyers said that he later apologized, and
Clark let Salyers take his tools, which Clark had been holding, and leave. Salyers
testified that he talked to police shortly after the murder and told them that he was
in Florida at the time. Salyers denied knowing Mike Todaro, the registered owner
of the revolver found at the scene of the crime.
SUFFICIENCY OF THE EVIDENCE
In her first issue, appellant argues that the evidence is insufficient to support
her conviction because the State’s case consists of 1) inconclusive evidence and 2)
15
speculation that Ms. Clark told lies. Essentially, appellant asserts that the State’s
evidence is speculative and cannot rise to the level of proof beyond a reasonable
doubt.
Standard of review and applicable law
We review a challenge to the legal sufficiency of the evidence under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781,
2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.
Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support
a conviction if, considering all the record evidence in the light most favorable to
the verdict, no rational factfinder could have found that each essential element of
the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.
at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). Evidence is insufficient under this standard in four circumstances: (1)
the record contains no evidence probative of an element of the offense; (2) the
record contains a mere “modicum” of evidence probative of an element of the
offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the
acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S.
at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518;
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
16
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)
(stating jury is sole judge of credibility of witnesses and weight to give their
testimony). An appellate court presumes that the factfinder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also
Clayton, 235 S.W.3d at 778 (reviewing court must “presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination”).
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a
reviewing court examines “whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the
17
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt, even if every fact does not “point directly and
independently to the guilt of the accused.” See Powell v. State, 194 S.W.3d 503,
507 (Tex. Crim. App. 2006).
A person commits murder if she intentionally or knowingly causes the death
of another person or intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of another. TEX. PENAL
CODE § 19.02(b)(1),(2) (Vernon 2011).
Analysis
Appellant, pointing to only five pieces of evidence—the spot of blood, the
gunshot residue, the run through the woods at night, the shooting of a gun and
going to the hospital while sick, and allegations that appellant had cancer—argues
that the evidence of her guilt is legally insufficient. However, we must determine
whether the necessary inferences are reasonable based on the cumulative force of
the evidence when viewed in the light most favorable to the verdict. Sorrells v.
State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).
Here, appellant, admittedly, was home when Clark was murdered while
sleeping in his own bed. There was no forced entry into the home and no
indication of a robbery. The alarm, which Clark routinely set, did not go off.
Clark was shot with a gun that witnesses identified as his own. The murderer left
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the gun at the murder scene. Appellant claimed to have run through the woods
after she heard shots, but when she appeared at the Manacks’ house, her gown and
feet were both clean. When she fled her house, appellant went through the garage,
even though it was not the closest exit to the bedroom in which she had been
sleeping.
At the Manacks’ house, appellant spent 30 to 45 minutes in the bathroom
before sitting down and telling them what had happened and calling her daughter.
When police arrived, appellant signed a consent-to-search form, but was otherwise
uncooperative. Even though she promised police that she would come by the
office later in the day to provide a statement, appellant never showed up. She went
home, changed clothes, and tried to get her boss to have one of his doctor friends
admit her to the hospital. She then took her nightclothes to the Manacks’ home
and asked Judith to wash them because her washer was broken. Appellant went to
the bank the same day as the murder to withdraw funds. That same day, her own
doctor had her admitted to the hospital. When police showed up the question her
there, they were unable to do a GSR test because appellant had already showered.
Appellant had told both Judith Manack and Dr. Aubert that she could not take a
GSR test because she had been firing a gun at home, even though she was
supposed to have been home from work because she was sick. When Judith
Manack visited appellant in the hospital shortly after the murder, Judith was
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shocked because appellant had already had Clark’s body cremated. Appellant did
not attend the memorial service that Clark’s boss held, nor did she hold her own
service.
There was also evidence that appellant was aware that Clark was having an
affair and was preparing to leave her. John Baff testified that on the night of the
murder, it was his impression that Clark intended to go home and ask appellant for
a divorce. Appellant had told Judith that she was aware that Clark had been
moving property into his own name that that she “didn’t want to be stuck with
nothing again in the divorce if [Ed] divorced her.” Although motive and
opportunity are not elements of murder and are not sufficient to prove identity,
they are circumstances indicative of guilt. Clayton, 235 S.W.3d at 781 (stating that
motive “may be a circumstance that is indicative of guilt.”); Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004).
The forensic evidence also provided evidentiary support for appellant’s
conviction. Even though nothing was seen on appellant’s gown in 1987, when it
was re-examined years later, a forensic examiner, using a microscope that was not
available in 1987, saw what he felt was high velocity impact spatter. While only
one spot of the high velocity impact spatter tested conclusively positive for blood,
the jury could have reasonably concluded that, in the years between the murder and
the reopening of the case, the hemoglobin in the other spots had degraded. There
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was expert testimony that hemoglobin would degrade over time and under certain
conditions, and the jury was aware that the bed sheet that was covering Clark’s
body at the time he was shot also tested negative for blood even though
photographs showed Clark’s body lying on the undisputedly blood-soaked sheet at
the time of the murder. And, even though no GSR was found on appellant’s gown
in 1987, when new, more sensitive tests were performed on the gown when the
case was reopened, examiners found two particles of gunshot residue on the front
of the gown. The examiner described this as an inconclusive result because 1 in
10,000 people would have gunshot residue on them if they had not fired a weapon
rather than the 1 in 1 million required for a conclusive result.
Having viewed the evidence in the light most favorable to the verdict, we
hold that the evidence is sufficient to support appellant’s conviction. The jury was
able to assess the credibility and demeanor of the witnesses who testified at
trial. See Jackson, 443 U.S. at 319, 99 S. Ct. 2781; Hooper, 214 S.W.3d at 16–
17. The jury also decides what weight to give expert opinions. See Bearnth v.
State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The
jury inferred from the circumstantial evidence, coupled with the forensic evidence,
that appellant was guilty of the murder of her husband. “This was not a
determination so outrageous that no rational trier of fact could agree.” Wirth v.
State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012).
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We overrule appellant’s first issue on appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, appellant argues that the trial counsel was ineffective
because he failed to introduce (1) a recording of a voice-mail death threat against
Clark and (2) a video of the woods between the Clark and Manack residences
taken right after the murder. Appellant asserts that “there is a reasonable
probability that the evidence that defense counsel failed to offer would have
affected the outcome of the trial.”
Standard of review and applicable law
To show ineffective assistance of counsel, a defendant must demonstrate
both (1) that her counsel’s performance fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068,
(1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A
defendant has the burden to establish both of these prongs by a preponderance of
the evidence, and a failure to make either showing defeats an ineffectiveness claim.
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We presume that
counsel’s conduct falls within the wide range of reasonable professional assistance,
and we will find counsel’s performance deficient only if the conduct is so
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outrageous that no competent attorney would have engaged in it. Andrews, 159
S.W.3d at 101.
We cannot speculate beyond the record provided, so any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999); see Anderson v. State, 193 S.W.3d 34,
39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Because the record is usually
underdeveloped, direct appeal is often an inappropriate forum in which to bring
this type of claim. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003). The necessary record is best developed in a hearing on a motion for new
trial or by application for a writ of habeas corpus. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998).
“An attorney’s failure to investigate or present witnesses will be a basis for
establishing ineffective assistance of counsel only where it is shown that the
witnesses would have been available and that the presentation of the evidence
would have benefitted appellant.” Pinkston v. State, 744 S.W.2d 329, 332 (Tex.
App.—Houston [1st Dist.] 1988, no pet.) (citing Coble v. State, 501 S.W.2d 344
(Tex. Crim. App. 1973)). “Failure to object to admissible evidence does not
constitute ineffective assistance of counsel.” Lee v. State, 29 S.W.3d 570, 579–80
(Tex. App.—Dallas 2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866,
23
887 (Tex. Crim. App. 2012) (“The failure to object to proper questions and
admissible testimony . . . is not ineffective assistance.”).
Background
At trial, appellant sought to introduce a tape of a threat made against Clark
made by a male, which was left on appellant’s answering machine near the time of
the murder. Appellant planned to call her attorney at the time of Clark’s death,
Rick Brass, to testify that he recovered the tape from the answering machine and
kept it in his possession until the case was reopened, at which time he gave it to
defense counsel. It is undisputed that the existence of the audiotaped threat was
known to the jury through the testimony of other witnesses, but the jury never
actually heard the tape because defense counsel decided not to introduce it.
Defense counsel was concerned that calling Brass to authenticate the tape might
waive attorney-client privilege and open him up to cross-examination on other
privileged matters. When the issue was discussed at trial, the following exchange
took place:
[Defense Counsel]: Judge, we have been talking about the audio
cassette tape threatening message, the threatening message –
[Trial Court]: Yes.
[Defense Counsel]: —that Judy Manack testified about hearing it.
[Trial Court]: Okay.
24
[Defense Counsel]: We haven’t introduced that through anybody yet.
The reason for that is chain of custody and all of that. What we would
like to do is put Rick Brass on to introduce it, to lay the predicate to
introduce it. Rick was hired. He was the lawyer. He went to the
Clarks’ house. He retrieved—back then, he took that tape out of the
answering machine, and he kept it –
[Trial Court]: Okay. So, he’s had custody of it?
[Defense Counsel]: —all these years. And he gave it to us. And that’s
the purpose for which I was trying to call him.
[Trial Court]: Right.
[Defense Counsel]: [The Prosecutor] is of the opinion that that would
breach the attorney/client privilege. If that’s the case—if the Court
would rule that, I would not call Rick Brass.
[Trial Court]: No, it’s for chain of custody.
[Defense Counsel]: That’s my opinion, and that is—
[The Prosecutor]: You don’t want to hear my response?
[Trial Court]: Well, I will.
[The Prosecutor]: Okay. Well, my position is, Judge, that the way that
Rick Brass knew where the tape was, the way that he obtained access
into the house to retrieve the tape is based on communications with
his client. And, so, the questions necessarily call into—call into
question communications that were the product of attorney/client
communications, or attorney/client privilege.
[Trial Court]: Okay. Yeah, that’s different, I think.
[Defense Counsel]: It has to be privileged communication, and those
were not privileged communications.
[Trial Court]: Wait a minute. I think that’s different. I think that’s
different. Because what you’re—you’re not trying to get into any kind
25
of privileged information. What you want to know is how did he
know about the tape, and how did he come into custody of the tape.
And I think that goes along with chain of custody. But if you’re—if
you’re going to go into anything like, you know, any private
discussions that she may have had, as long as they go to the chain of
custody with the tape—you see what I’m saying?
[The Prosecutor]: I do understand. There’s also communications that
she disclosed to other individuals, that we’ve heard testimony in this
case that pertain to communications between her and her lawyer. So,
it would be my position that she’s waived the attorney/client privilege
with respect to those communications because she has shared those
communications with other individuals that are not her attorney. And,
so, it would be my position that I can then ask her attorney about the
comments that she—
[Trial Court]: Okay. I understand. What say the defense?
[Defense Counsel]: Judge, my response to that is, I know that the
State has had people testify that they heard it. We dispute that
completely.
[Trial Court]: That they heard what?
[Defense Counsel]: That they heard any conversation between Norma
and Rick Brass. I don’t know that—–
[Defense Counsel]: I think the only information—let me stop. The
only information that I know of, that I’ve heard—I don’t think I’ve
heard anything about any communications that she had with Rick
Brass, other than have him—if there were recommendations, or
whatever, to get an attorney, or that she had an attorney previously, an
attorney regarding divorce, an attorney regarding the criminal case.
And all of that is in front of the jury. Okay? And there was audio—or
the tape that was introduced that says that she had an attorney, and
that she was advised by her attorney not to testify. If that’s what you
believe is a breach of attorney/client privilege—
[The Prosecutor]: I’m not necessarily saying the entire privilege. I’m
asking that I be allowed to cross-examine this witness concerning the
26
statements that the defendant made to other individuals concerning his
advice, his instructions, his—the things that he was telling her to do or
not to do.
[Trial Court]: What individual statements? What statements?
[The Prosecutor]: Well, we’ve got the statement where he told her not
to give a statement to the police. He told her not to go downtown
because they would test her hands for gunshot residue, that he told her
not to testify in front of the grand jury. Let me make sure I remember
all of them. That he was—it was—he was attempting to get her
admitted to a hospital, or that it was—
[Trial Court]: Who—she made those statements to other people?
[The Prosecutor]: Dr. Aubert testified that she told him that her lawyer
was trying to get her admitted to a hospital.
[Trial Court]: Okay. Yeah, but who called Dr. Aubert as a witness?
[The Prosecutor]: Well, I did.
[Trial Court]: Okay. That’s the problem.
[The Prosecutor]: But the waiver is the fact that she made those
statements to him. That’s what waives the privilege as to that
communication. It’s not whether or not I called the witness that spoke
about them, I don’t think.
[Defense Counsel]: Well, I disagree because if I tell somebody that
I’ve been advised by a lawyer to take the Fifth Amendment, that
doesn’t mean that my conversations with my lawyer are now—
[The Prosecutor]: And I don’t want to get into all of the conversations
with the lawyer. I want—
[Defense Counsel]: Judge, I will short-circuit it. I’m not going to call
Rick Brass. It’s too touchy of a question.
[Trial Court]: Well—
27
[Defense Counsel: It’s okay, Judge.
[Trial Court]: That’s the only chain of custody.
[Defense Counsel]: I’ve been instructed not to waive attorney/client
by my client, and I don’t want to—I don’t want to do something that’s
going to run the risk of that possibly coming in. I will not call Rick
Brass.
[Trial Court]: Well, then, that resolves it. Okay.
Analysis
Appellant contends that defense counsel was ineffective for deciding not to
call Rick Brass to establish a chain of custody for admission of the audiotape
because “[i]t is clear from this exchange that the trial court was inclined to allow
Rick Brass’s testimony for chain of custody on the tape only, without considering
it a blanket waiver of privilege.”
Appellant also contends trial counsel was ineffective for failing to introduce
a video, in which appellant conducted a “walk-through of what happened” with
Brass near the time of the shooting. The video showed the path appellant claimed
to have taken through the woods to the Manacks’ house. This video, like the
audiotape from the answering machine, was kept by Brass for over two decades.
Appellant relies on Cameron v. State, 241 S.W.3d 15, 17 (Tex. Crim. App.
2007), in which the defendant wished to call his former attorney to testify that he
had seen two different police reports in the State’s file. The trial court would not
28
allow the attorney to testify without a blanker waiver of the attorney client
privilege. Id. On appeal, the court held that the defendant’s privilege was waived
only “to the extent that it dealt with the notes relating to the State’s file.” Id. at 21.
“[I]f the client uses the lawyer to prove [a] matter that [the lawyer] would
only have learned in the course of his employment[,] this again should be
considered a waiver as to related privileged communications.” 1 MCCORMICK ON
EVID., § 93 (7th ed.) (citing 8 WIGMORE, EVIDENCE §2327 (McNaughton rev.
1961)). Even though we agree that Brass’s testimony as to chain of custody would
not be a blanket waiver of attorney-client privilege, and would only be a waiver as
to communications related to the recovery of the audiotape or the creation of the
videotape, we do not know what those related communications might have
included had Brass been subject to cross-examination. As such, trial counsel had a
strategic purpose in not calling Brass, as he testified in the motion for new trial
hearing. Trial counsel’s decision not to call Brass and risk opening up testimony to
those related communications was a question of strategy, and his decision not to
call appellant’s former attorney in these circumstances does not fall below
reasonably effective assistance.
Appellant also contends that the audiotape and videotape could have been
introduced without Brass’s testimony through the ancient documents exception to
the hearsay rule, which provides that “[s]tatements in a document in existence
29
twenty years or more the authenticity of which is established,” “are not excluded
by the hearsay rule, even though the declarant is available as a witness[.]” TEX. R.
EVID. 803(16) (emphasis added). The obvious problem with this assertion is that
Brass’s testimony was necessary to establish the authenticity of the tapes.
Nevertheless, appellant argues that, despite the language of Rule 803(16) requiring
authentication for an exception to the hearsay rule, no authentication was required
because of Rule 901(b)(8), which provides that the authentication requirement is
satisfied if there is “[e]vidence that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion concerning its authenticity, (B)
was in a place where it, if authentic, would likely be, and (C) has been in existence
twenty years or more at the time it is offered.” TEX. R. EVID. 901(b)(8). Again,
however, Brass’s testimony would have been necessary at trial to show that the
requirements of 901(b)(8) had been met before the tapes could have been admitted.
As we stated earlier, not calling Brass to testify about the collection of the
audiotape or the making of the videotape could have been sound trial strategy
because doing so would have subjected him to cross-examination on any related
communications relayed to him by appellant.
For these reasons, we overrule appellant’s second issue on appeal.
30
ADMITTING SCIENTIFIC TESTIMONY
In her third and fourth issues on appeal, appellant contends the trial court
erred in admitting scientific evidence regarding (1) inconclusive GSR tests and (2)
negative findings for blood. Appellant argues that the evidence was “speculative,”
which we construe as a challenge to the relevancy of the challenged evidence.
Standard of review and applicable law
A trial court’s determination of a witness’s qualification as an expert and its
decision to exclude expert testimony are reviewed for an abuse of discretion.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). If the trial
court’s ruling lies within the zone of reasonable disagreement, the trial court’s
ruling will be upheld. Id.
Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, training, or education may testify thereto in the form of an
opinion or otherwise.” TEX. R. EVID. 702. The proponent of expert testimony
must show by clear and convincing proof that the evidence he seeks to introduce is
sufficiently (1) relevant and (2) reliable to assist the trier of fact in accurately
understanding otherwise pertinent facts of the case. See Weatherred, 15 S.W.3d at
542.
31
The standard for relevance is whether the scientific principles “will assist the
trier of fact” and are “sufficiently tied” to the pertinent facts of the case. Jordan v.
State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). The expert must make an
effort to tie pertinent facts of the case to the scientific principles that are the subject
of his testimony. Id. “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . .” TEX. R. EVID. 403.
Evidence of probabilities relating to inconclusive GSR results
In her third issue, appellant asserts that the trial court erred in admitting
scientific testimony regarding probabilities in inconclusive GSR results. At trial,
Dr. William Davis, an expert on GSR, testified that he tested appellant’s blue
nightgown, which she had worn on the morning of the murder for the presence of
GSR. The first time he tested it, he found one particle of GSR. He then retested a
broader area and found a second particle of GSR. Davis testified that his
laboratory required three particles of GSR before he could conclusively testify that
the GSR was a primary deposit rather than a secondary deposit. When Davis
attempted to testify about the statistical probabilities of two particles, appellant
objected, at which time the trial court conducted a voir dire outside the presence of
the jury. Davis explained that three particles were considered conclusive for GSR
because the likelihood of three particles of GSR on a person who had not fired a
32
gun was 1 in 1 million. For two particles of GSR, the statistical probability was 1
in 10,000; for one particle of GSR; the statistical probability was 1 in 81. When
asked about the basis of this conclusion, Davis explained that he relied on a
published study in which police officers on desk duty, who had not fired their
weapons in 30 days, were sampled. Davis pointed out that the officers in the study
were in a GSR environment, so the application of its statistics to people that were
not in a GSR environment was very favorable. Defense counsel asked Davis to
look at the photos of appellant’s home, which contained three guns and
ammunitions, and determine whether that would be a GSR environment, to which
appellant replied that it likely would be so. Davis testified that he could not
establish a baseline for GSR in GSR environments because he would “have to
consider every possible environment.” Instead, he relied on the study, which was
conducted in a GSR environment [police officers at work who had not filed their
weapons in 30 days] and applied it to people who had not fired a gun in non-GSR
environments, “which is very favorable to the person that has never fired a gun.”
Defense counsel then argued at trial, as does counsel on appeal, that it was error to
allow Davis’s testimony because Davis was not able to testify about the likelihood
of GSR particles in appellant’s home. The trial court then permitted the testimony.
During cross-examination, defense counsel questioned Davis extensively about
how the probabilities of an accidental transfer of GSR could be different from the
33
statistics quoted if the samples were taken from a GSR environment like
appellant’s home.
Analysis
Appellant argues that, because Davis “testified that he could not apply the
statistics to people in GSR environments and he also testified that the Clark home
was a GSR environment, it was error to allow his testimony over objection.”
We first consider whether the scientific testimony regarding the statistical
probabilities would “assist the trier of fact” in this case. See Jordan, 928 S.W.2d at
555. Here, Davis testified that his GSR tests were “inconclusive.” The statistical
analysis was relevant to help the jury understand what a “conclusive” test was and
the meaning of an “inconclusive” test. As Davis explained, a conclusive test
required three particles of GSR from the item sampled. Only 1 in 1 million people
would have three particles of GSR on their clothes if they had not fired a gun. The
1 in 1 million statistic was the point at which Davis’s laboratory felt comfortable
describing a GSR test as conclusive. However, Davis’s testimony also explained
that a GSR test that was not conclusive did not mean that no GSR residue was
present; to the contrary, an inconclusive result could still be a positive detection of
GSR, just at levels beneath the 1 in 1 million described as “conclusive.” As the
number of GSR particles recovered dropped, the likelihood that they were
deposited as the result of a primary transfer also dropped. At two particles of
34
GSR—the amount recovered from appellant’s nightgown—the statistical
probability of an accidental or secondary transfer was 1 in 10,000, an amount
Davis and his laboratory were unwilling to describe as conclusive. However, the
statistical information was helpful to assist the trier of fact in determining what was
meant by an “inconclusive” GSR test.
We next consider whether the evidence was “sufficiently tied” to the
pertinent facts of the case. Jordan, 928 S.W.2d at 555. Appellant argues that the
statistical evidence was not tied to the facts of the present case because Davis
could not testify about the amount of GSR that might have been present in
appellant’s home due to the presence of three guns and some ammunition. Thus,
appellant argues, the statistical evidence could not be applied to appellant because
it assumed a person that had not fired a gun in a non-GSR environment.
The Court of Criminal Appeals has elaborated on what is required in such a
review.
In Jordan v. State, [928 S.W.2d 550 (Tex. Crim. App. 1996)] we
specifically addressed the “fit” aspect of the relevance inquiry. There,
the proffered expert “answered questions about the specific facts of
the case and how they might be affected by the factors he testified to,”
“stated his opinion about the reliability of the eyewitness
identifications,” and “identified facts in the case that he believed
impacted those identifications.” Id. at 556. However, the expert “did
not testify about several factors that might have affected the reliability
of the eyewitness identifications”; nor did he “interview the witnesses
or examine certain pieces of evidence.” Id. at 555–56. We held that,
although the expert “did not testify as to every conceivable factor that
might affect the reliability of eyewitness identification present,” his
35
testimony “was sufficiently tied to the facts to meet the simple
requirement that it be ‘helpful’ to the jury on the issue of eye witness
reliability.” Id. at 556. We explained that the question under Rule
702 is “not whether there are some facts in the case that
the expert failed to take into account, but whether
the expert’s testimony took into account enough of the pertinent facts
to be of assistance to the trier of fact on a fact in issue.” Id. Further,
we noted that the expert’s failure to account for some facts “is a
matter of weight and credibility, not admissibility.” Id.
Tillman v. State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) (footnote omitted).
Davis’s testimony makes clear that it was based on a sampling of police
officers at work, albeit officers who had not fired their weapons within 30 days.
Such a sampling, Davis explained, was actually taken from a GSR environment
[officers on duty who had not fired weapons], and applied to people in non-GSR
environments who had not fired weapons. Such a sampling would be “very
favorable to the person who has never fired a gun.” In other words, if 1 in 10,000
officers on duty in a GSR environment had two particles though not having fired a
gun, people in no-GSR environments who had not fired a gun should also have 2
particles or less of GSR. The trial court could have reasonably decided that
appellant’s home with three guns and some ammunition, though not a no-GSR
environment, was sufficiently similar to the workplace of the police officers
sampled to “sufficiently tie” the study Davis relied on to the facts of appellant’s
case and be helpful to the jury. That Davis did not, or could not, take into account
36
the specific amount of GSR in appellant’s home goes to the weight of his
testimony, not its admissibility.
Accordingly, we overrule appellant’s third issue on appeal.
Evidence regarding negative blood tests on the deceased’s sheets
In her fourth issue, appellant argues that the trial court erred in admitting
speculative testimony regarding the comparison of negative blood tests on the
sheet with results on the nightgown. At trial, Katie Welch, assistant director of the
Harris County Institute of Forensic Sciences–Forensic Genetics Laboratory,
testified about blood tests that she performed on appellant’s nightgown and the
deceased’s bed sheets. On appellant’s nightgown, Welch initially tested some
visible orange stains, which were negative for blood. She then tested eight
microscopic stains that Detective Rossi had identified as possible high velocity
blood spatter. Using a Hematrace test, Welch found that one of the microscopic
stains was identifiable as blood. She was not, however, to obtain any DNA from
any of the stains.
During Welch’s testimony, but before she testified about her testing of the
decedent’s bed sheet, defense counsel objected, stating, “I would ask . . . that the
Court grant a motion in limine that the State and the witness not be allowed to
enter into any discussion of false negatives, or anything that relates to that, or make
any—or any statements that a negative result is anything other than a negative
37
result[.]” After noting that there were some circumstances “where it’s legitimate to
explain a negative result[,]” the trial court declined to grant defense counsel’s
motion in limine requiring that defense counsel object when objectionable
testimony was offered. At which point, defense counsel stated, “My objection
would be any discussion of the false negatives, any explanation for a false negative
at all from this witness I think is irrelevant, and if it’s not irrelevant, then it’s 403,
and it’s improper expert witness testimony.”
Welch then testified that she tested five areas from the large stain on the
sheet taken from the bed where Clark was shot. One area was both presumptively
negative1 for blood, and the Hematrace test used to confirm the presence of blood
was also negative. The other four areas on the sheet tested presumptively positive
for blood, but the Hematrace tests could not confirm the presence of blood.
Welch later explained that the Hematrace test detects the presence of the
hemoglobin protein in blood, and that “hemoglobin can degrade over time.”
Analysis
Appellant contends that Welch’s testimony was speculative because “[t]he
analyst in this case testified over objection that apparent blood stains on a sheet
tested negative for blood when they appeared to be blood and so a falsely negative
1
Welch testified that the Phenophthalein test is a preliminary test, which can
determine whether the sample is presumptive for blood. That test is followed by
the Hematrace test, which can confirm the presence of human or higher primate
blood.
38
result is to be inferred both on the sheet and the nightgown.” However, we
disagree with appellant’s assessment of Welch’s testimony.
Welch never testified that the negative results on the nightgown were false
negative results. In fact, when invited to do so by defense counsel, Welch actually
refused to speculate.
[Defense Counsel]: Do you intend for the jury to understand your
testimony to be that the seven negative tests that you got on
Hematrace [on the nightgown] really might have been blood anyway?
Is that what you intend for them to understand from your testimony?
[Welch]: That is possible, yes.
[Defense Counsel]: That’s what you want them to understand?
[Welch]: I would like them to understand that the result that I got for
those Hematrace tests were negative. But I’d like for them to
understand what the meaning of a negative result is.
[Defense Counsel]: Let’s talk about that from your point as—from
your perspective as a scientist. You wouldn’t tell the DA’s office that
you got a positive result, would you?
[Welch]: I’m sorry, I don’t quite understand.
[Defense Counsel]: Let me ask it this way. Can you say within a
reasonable degree of medical or scientific certainty that those are false
negative, that those were really blood?
[Welch]: I don’t—I got a negative result. I don’t know whether they
were a false negative.
[Defense Counsel]: I object that’s nonresponsive.
[Trial Court]: It’s overruled.
39
[Defense Counsel]: I want you to answer my question within—you’re
an expert witness in this area, correct?
[Welch]: I am.
[Defense Counsel]: Within a reasonable degree of scientific certainty,
are you telling this jury that those were false negatives when they
came up negative for blood?
[Welch]: I’m not telling the jury that they were false negatives. The
results were negative. I don’t know why the results—I don’t know
the reason for the negative results.
[Defense Counsel]: Is it possible that the reason for the negative
results is because they aren’t blood?
[Welch]: It’s absolutely possible.
****
[Defense Counsel]: Can you tell the jury that there’s no blood on that
[nightgown]?
[Welch]: I can tell the jury that that one spot was Hematrace positive,
and the Hematrace test is positive for blood. We do not say human
blood for the reasons of the possibility of upper primates and ferrets.
[Defense Counsel]: So, there is one microscopic spot of some kind of
blood. You don’t know if it’s transfer, you don’t know if it’s—versus
high velocity?
[Welch]: That’s correct.
Despite appellant’s assertions to the contrary, Welch did not speculate that
the negative results for blood on appellant’s nightgown were false negatives. She
clearly confined her testimony to (1) the results of the tests on the nightgown, (2)
the results of the tests on the stained sheet, and (3) an explanation that hemoglobin
40
can degrade over times. The trial court could have reasonably concluded that all
three items of testimony “w[ould] assist the trier of fact” and were “sufficiently
tied” to the pertinent facts of the case. Jordan, 928 S.W.2d at 555. If indeed the
jury reached the conclusion that the negative tests on the nightgown were false
negatives due to degradation of hemoglobin, such an inference was reasonably
supported by the evidence presented.
We overrule issue four.
CLOSING ARGUMENT
In her fifth issue, appellant argues that the trial court erred in overruling
defense counsel’s objections to improper argument at closing. Appellant asserts
that the State injected harmful, prejudicial facts into the record that appellant had
lied about having cancer.
Standard of review and applicable law
We review claims of improper jury argument for an abuse of disctetion.
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Permissible jury
argument generally falls into one of four areas: (1) summation of the evidence; (2)
reasonable deduction 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); Cannady v. State, 11 S.W.3d 205, 213 (Tex.
Crim. App. 2000). Remarks of counsel during closing argument must be
41
considered in the context in which they appear. Gaddis v. State, 753 S.W.2d 396,
398 (Tex. Crim. App. 1988). Counsel is allowed wide latitude without limitation
in drawing inferences from the evidence, so long as the inferences drawn are
reasonable, fair, legitimate, and offered in good faith. Id.
Background regarding jury argument
During argument, the State argued as follows:
[Prosecutor]: Don’t convict her because she’s a liar. Convict her
because she’s a killer, but the lies tell you that she did it. Why lie
about something like cancer? I don’t know. But how horrible, how
horrible –
[Defense Counsel]: Judge, I’m going to object. That’s arguing outside
the record.
[Trial Court]: It’s overruled.
[Prosecutor]: How horrible to lie about something like a disease like
that. How horrible to use that to manipulate Dr. Aubert into giving her
a job.
[Defense Counsel]: Judge, I’m objecting to that being outside the
record. No witness ever testified to that at all.
[Trial Court]: Overruled. I let you argue your case. I will let the State
argue their case. You may proceed.
Appellant also complains that the prosecutor injected facts outside the record when
she told the jury, “Ed was the love of [appellant’s] life, yet she cremated him
before his son could say goodbye. What sense does that make?” Appellant argues
42
that “the only purpose [these] argument[s] serve[d] is to inflame the jury and goad
them into a conviction based on something beside the evidence.”
Analysis
The State responds that both arguments were reasonable summations
of the evidence and reasonable inferences drawn from it. We agree with the
State.
During the re-cross examination of the State’s witness, Dr. Aubert,
appellant’s boss, the following exchange took place:
[Prosecutor]: All right. Did she also tell you something about her
medical condition that made you feel sympathy for her?
[Dr. Aubert]: She told me that she had—when she came to work, one
of the interviews—I don’t know whether it was the February lunch, or
I interviewed her briefly the day she came to work. One of those
times, she told me that she was a cancer patient and she was not able
to work, although she had a master’s degree in a medical-related field.
And I don’t remember what it was. She could not hold a job, regular
full-time job because it interfered with her therapy for her cancer at
M.D. Anderson Hospital.
[Prosecutor]: Can you recall what kind of cancer it was that she told
you that she had?
[Dr. Albert]: She said she had bone cancer and it had metastasized to
the lumbar region, is what she told me.
Further, appellant’s medical records, which were admitted at trial, showed no
history of cancer. Thus, the prosecutor had an evidentiary basis upon which to ask
the jury to infer that appellant had lied about having cancer.
43
Regarding the argument about cremating Clark before his children could say
goodbye—that too was supported by the evidence admitted at trial. The record
shows that appellant was cremated within three days of the murder. When
appellant’s neighbor, Mrs. Manack, was questioned about Clark’s cremation, the
following exchange took place:
[Defense Counsel]: Okay. And in regards to the testimony that you
gave about—and you seemed to be a little upset about this—that Ed
had been cremated by the time you’d gone to the hospital to visit
Norma. And you don’t know what day that was, right?
[Judith Manack]: No, I don't remember what day it was.
[Defense Counsel]: Okay. Do you have any—
[Judith Manack]: But it only had been a few days, two or three days.
[Defense Counsel]: Okay. Do you have any knowledge about what
Ed’s wishes were if he were to die?
[Judith Manack]: A. No, I don’t.
[Defense Counsel]: So, you don’t know that he may have wanted to
be cremated if he died?
[Prosecutor]: Calls for speculation.
[Trial Court]: It’s overruled.
[Judith Manack]: I don’t know.
[Defense Counsel]: Is that possible?
[Judith Manack]: I guess, yes.
[Defense Counsel]: And if that were possible, it wouldn’t be unusual?
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[Judith Manack]: I guess what bothered me is he was a murder victim,
and I didn’t think that they did that that quickly until they made all
their investigation.
[Defense Counsel]: Okay. And certainly—
[Judith Manack]: And I thought his children would be upset.
[Defense Counsel]: I’m sorry?
[Judith Manack]: I thought his children would be upset. I didn’t know
if they didn't get to see him in a casket, I just thought his children
would be upset.
There was also evidence that Clark was cremated, and that appellant did not have a
service for him. There was also evidence that Clark’s boss, Neil Block, did have a
service, but appellant did not attend. And, Neil Block, not appellant, was the
person who had informed appellant’s ex-wife and children that their father had
been murdered.
From the evidence about how quickly Clark’s body was cremated, and that
appellant did not have a service for him or contact his ex-wife and children about
his death, a reasonable deduction from the evidence would be that the body was
cremated before Clark’s son could say goodbye.
Because both arguments complained of on appeal were summations of and
reasonable deductions from the evidence, the trial court did not err in overruling
appellant’s objections to the State’s closing arguments.
We overrule appellant’s fifth issue on appeal.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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