Erich Stockley Seals v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00191-CR
____________________
ERICH STOCKLEY SEALS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 13-16894
MEMORANDUM OPINION
A jury convicted Appellant Erich Stockley Seals (Appellant or Seals) of
aggravated assault with a deadly weapon, a second degree felony. See Tex. Penal
Code Ann. § 22.02(a)(1) (West 2011). After a bench trial on punishment, the trial
court sentenced him to twenty-five years of confinement. Appellant raises seven
issues on appeal. We affirm the trial court’s judgment.
1
FACTUAL BACKGROUND
On May 23, 2013, the State indicted Seals for aggravated assault for
shooting Donald Williams, Jr. (Williams) on April 30, 2013. The indictment also
alleged that Seals had previously been convicted for possession of a controlled
substance in 1994. Prior to trial, and outside the presence of the jury, Seals filed a
motion in limine to exclude evidence regarding allegations of events that occurred
after the April 2013 shooting. The State responded that it anticipated any such
evidence would bear on Seals’s claim of self-defense. The court declined to rule on
the motion, but it admonished the parties to approach the bench before eliciting
any testimony regarding such matters.
Testimony of Donald Williams, Jr.
Williams testified at trial that Seals shot him in the chest on April 30, 2013.
Williams explained that his wife has a child from a previous relationship with
Seals. According to Williams, a few months before the shooting, Williams
overheard a phone conversation between his wife and Seals in which Seals yelled
at Williams’s wife, used foul language, and called her ugly names. Seals also told
Williams “I will kill you.” Williams testified that “I just told him, I said, [w]ell, if
you want to fight about it, we will fight about it. And then that’s when I said,
[w]ell, I’m not going to tongue wrestle with you over the phone. When I see you
2
we will take care of it.” Williams agreed he challenged Seals to a fist fight.
According to Williams, he had never talked to Seals prior to this phone call and
had only seen Seals once at a pool hall, but the two men did not speak on that
occasion, and Williams did not see Seals again until the day of the shooting.
Williams explained that, on the day of the shooting, he was talking with his
sister on the sidewalk near the front entrance gate at the Port Arthur Park
Apartments complex, where his sister lived. According to Williams, while they
were talking, a car pulled in, he recognized the driver as Seals, and he and Seals
made eye contact. A few minutes later, Williams left with David Rogers (Rogers),
and as they were about to leave the apartment complex, they saw Seals sitting in a
car at the exit gate, and Williams pulled his car up about ten or fifteen feet behind
Seals’s vehicle. Williams did not know why Seals was waiting at the gate.
Williams got out of his car, walked up to Seals’s car, and Williams expected there
would be a fight.
Williams testified that Seals had his car window partially down. Williams
threw his hands up “ready to fight[]” and said to Seals “Hey, what’s up?”
According to Williams, Williams had nothing in his hands, does not carry a gun or
a knife, and did not approach Seals with a weapon. Williams stepped back from
Seals’s car because he expected Seals to get out, when the next thing Williams
3
knew, he was shot in the chest, “an inch away from [his] heart.” Rogers drove
Williams to the hospital. Williams identified Seals as the person who shot him on
April 30, 2013. Williams testified that he did not regret stepping up to fight Seals
because he was “defending [his] wife” and because Seals had disrespected his
wife. Williams testified that he never saw a gun during the incident until Seals
pulled the trigger.
On cross-examination, Williams explained that during the phone call that
occurred prior to the shooting, Seals said “I will kill you.” The defense asked
Williams whether he planned on fighting Seals the next time he saw Seals after the
phone call, and Williams responded:
Well, he said he was going to kill me, so what do you think?
You think I’m going to get killed first? I didn’t want to kill him. I
wanted to fight him. I never had intentions on killing him. I never said
I was going to kill him. I wanted to fight.
Testimony of David Rogers
Rogers testified that he was with Williams at the Port Arthur Park
Apartments complex on April 30, 2013. Rogers stayed in the car, and noticed Seals
pull into the complex. Rogers knew “there was some tension” between Williams
and Seals, and Rogers thought that Williams and Seals did not like each other.
Rogers noticed Seals’s car again at the exit gate when Rogers and Williams
were leaving the complex. Rogers testified that Williams got out of their car, and
4
Rogers thought Williams was “upset[]” and that Williams and Seals were going to
get into a verbal argument that might develop into a fist fight. According to
Rogers, Williams did not have any kind of weapon, but Williams had his hands up
“like he was trying to invite [Seals] to come out of the vehicle[,]” and Williams
and Seals argued for three to five minutes before Williams was shot.
According to Rogers, Williams approached the driver’s side of Seals’s car
and the window on the driver’s side of Seals’s car “was almost all the way up
except for maybe like a couple of inches of gap in the window.” Rogers agreed that
Seals could have left the situation without speaking to Williams, and Rogers
agreed that during the argument, the exit gate was open and Seals could have
driven away.
Rogers was also present at Williams’s home during a telephone call that
occurred prior to the shooting and during that call Seals was disrespectful to
Williams’s wife. Rogers overheard Seals tell Williams “I am going to kill you[,]”
and Rogers was not surprised that Seals shot Williams.
Testimony of Investigator Croak
Investigator Croak (Croak) of the Port Arthur Police Department testified
that he got a call on April 30, 2013, concerning a shooting victim who was at the
hospital. About the same time as the call, Seals appeared at the police station
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stating he had been involved in a shooting. Croak personally met with Seals at that
time and Seals told Croak the weapon used in the shooting was in Seals’s car.
After getting consent from Seals, Croak went to Seals’s vehicle and the weapon
was “in plain view[]” on the front seat. Croak took the weapon into custody and
logged it into evidence. Seals gave consent to Croak and then Seals’s wife or a
relative showed Croak the location of the gun.
Croak also obtained a statement from Rogers, and it was Rogers who
indicated that Seals and Williams had an “exchange of words in the past.” Rogers
told Croak that Williams had approached Seals’s vehicle and “lunged toward the
door[,]” and that there was an argument and a gunshot.
Testimony of Marcelo Molfino
Marcelo Molfino (Molfino), assistant chief investigator for the district
attorney’s office, also testified at trial. Molfino was working as an officer for the
Port Arthur Police Department at the time in question and he received a call about
a gunshot victim who was at the hospital. While Molfino was on the way to the
hospital, he received another report that the “possible suspect in the shooting” was
at the police station. Molfino returned to the police station and met with the
individual, who was identified as Seals, and Molfino then read Seals his Miranda
rights and took a statement, which Seals signed. The State offered Seals’s
6
statement into evidence, and defense counsel objected on the basis of hearsay and
the Fifth Amendment. The court overruled the objections and admitted the
statement. The portion of the statement that includes Seals’s description of events
was read into the record by Molfino, in relevant part as follows:1
I went to the Jefferson Apartments to drop off a guy I know as
Swan and his wife. They needed a ride, so I gave them a ride. . . . I
picked them up and took them to the Jefferson Apartments. They live
in the back. . . . I dropped them off and I come [sic] into the gate. I
don’t have time for beef. This guy, [P]eanut, is married to my baby
mama. Peanut was with some guys when I came in the gate. I saw
[P]eanut standing there. Peanut was in [a] black looking car, maybe a
Nissan. When I am trying to leave, he is swerving behind me. Peanut
pulls up on my right behind me in his car. Peanut had one other guy in
the passenger side of his car. Peanut gets out of the car and tells me,
come on now. Come on now. So he is standing by my driver window.
He starts acting like he is going to hit me and comes at my window
and he was about to strike me. Peanut did not have anything in his
hands. I had my little cousin’s gun with me on the side of my seat. It’s
a . . . black small semi-automatic pistol. As [P]eanut comes to hit me,
I shot one time at [P]eanut to get him off me. When I shot [P]eanut he
ran back to his car and they drove off. I didn’t call the police, but I
went straight to get my [fiancé] at home. . . . I went and told [my
fiancé] what happened and told her I wanted to go talk to the police.
From [my fiancé]’s house I went to my mom’s house. . . but my mom
wasn’t there. From there I came straight to the Police Department to
give my statement to the police of what had happened. I left the gun in
the car and gave the police permission to take the gun out of my
car. . . .
1
At trial, Seals testified that he knew the Port Arthur Park Apartments by
the name “Jefferson.”
7
Seals told Molfino that Seals’s car window did not work properly, and Seals
and Molfino went to the car, where Seals re-enacted “his version of how things
happened[,]” because Molfino wanted to see if Seals had “shot out of his window
in actuality where the window was, where he stated he was, [and] if there was a
threat . . . .” Molfino made a video recording of Seals’s demonstration. The video
recording was offered into evidence. Defense counsel objected to the video on the
basis that the video constituted a videotaped confession and did not include Seals’s
Miranda rights. According to Molfino, he usually reads Miranda rights on the
video when he conducts a videotaped interview, but in this case, Seals “drove
himself to the station. He was not in custody. . . . he was the one to tell us his facts.
He was free to leave at any time.” The court overruled the defense objections and
allowed the video recording to be admitted into evidence stating on the record that
the recording was not the result of a custodial interrogation, and in fact, Seals had
been Mirandized, even though it was not required.
Molfino explained that he tried to get Seals to describe what happened. The
most important part to Molfino was trying to figure out whether Seals was the
aggressor or acted in self-defense. Seals told Molfino that Williams did not have a
weapon in his hands. It was important to Molfino to determine how far the car
window was open because, if the window was fully open, then someone could
8
come into the car, but if the window was only partly open, then Seals would have
had to reach out of the opening in the driver’s side window:
. . . He had to physically stick his hand out and almost look for
him because there is no way he could have shot that gun and the glass
not break if he is shooting in the direction he is. So for the victim to
be shot the way he was Mr. Seals had to take -- physically take his
hand out the window and shoot him.
....
. . . [I]f you take his statement, that trajectory of what he is
saying he shot, the way his window was, the victim’s injuries, it was
my opinion that he was the aggressor. There is no way that he could
have shot him the way that he was and the way the victim was shot
and he had to have looked for him and shot him and then drove off.
The reenactment video was played for the jury and shows an opening in the
driver’s side car window. Molfino testified that Seals told Molfino, both on the
video and in his statement, that the gate was open and he could have driven away
at any point during the confrontation. Molfino also explained that there was no
indication that Seals called for an ambulance or that he called 911 after the
shooting. According to Molfino, Seals drove to his fiancé’s and mother’s homes
before driving to the police station. And, Seals did not express any regret or
remorse while giving his statement to Molfino.
On cross-examination, Molfino agreed that the date on Seals’s statement was
incorrect and explained that he had used a “shell” document and failed to change
9
the date thereon. Molfino also agreed that when Seals came into the police station
to tell his side of the events, Seals waived his Miranda rights, and Seals did not
have to do so. Molfino explained that Seals told him Williams was agitated and
speaking with his hands, but there was no weapon in Williams’s hands. Molfino
referenced his report where it noted that Seals stated Williams was “not armed or
reaching for a weapon or object.” Molfino testified that, in his opinion, “Mr. Seals
was being untruthful and had to be the aggressor because, again, he had to reach
out the window, turn, acquire a target and shoot.” Molfino further explained that he
remembered Seals saying that the gate was open, and that Seals had “ample
opportunity to exit [the] situation[.]” Molfino testified that:
In this case, Mr. Seals had ample opportunity to explain to us
that it was self-defense. The more we spoke with him, the more we
investigated the scene, the more we looked at the victim’s injuries, it
was clear to me that this was not self-defense and that Mr. Seals was
the aggressor.
In Molfino’s opinion, there was no indication that Williams had used or
attempted to use deadly force against Seals and Seals never told Molfino that Seals
had been in fear for his life. In Molfino’s opinion, if Williams had swung at Seals
or even hit Seals, such conduct would not constitute deadly force.
10
Testimony of Kenneth Swan
After the State rested its case in chief, Seals called Kenneth Swan (Swan) as
his first witness. Swan operates a business next to Seals’s shop and Swan had
known Seals for about a year. On the day of the incident, Swan and his wife were
walking home and Seals picked them up and took them to the Port Arthur Park
Apartments, where the Swans lived. After the Swans got out of the car, Swan
noticed a black Nissan drive by them. Swan denied knowing the victim in this case
and denied knowing of any issues Seals may have had with the victim. Swan did
not see a gun in Seals’s car that day and Seals did not tell Swan that Seals had a
gun that day.
Testimony of Officer Walker
Next, the defendant called Officer Walker of the Port Arthur Police
Department as a witness. Walker testified that he knew Seals personally. Walker
agreed he was “familiar with” Donald Williams and that he knew that Seals was
afraid of Williams. Walker had heard of Seals’s criminal history but he was
unaware of Seals having been convicted of assault or of multiple felony drug
convictions.
11
Testimony of Deedra Gaskill
Deedra Gaskill (Gaskill) also testified for the defense. Gaskill is Seals’s
fiancé and they have been in a relationship for about fourteen years. Prior to the
shooting, Gaskill knew who Williams was, although she did not know him
personally. Gaskill explained that she and Seals had conversations about Williams
“harassing” and “bothering” Seals. On April 30, 2013, Seals arrived at her home
“nervous and shaking and crying[]” saying he had just shot someone and that “[he]
didn’t want to do it.” Seals wanted to turn himself in, and Gaskill followed him
first to his mother’s house and then to the police station.
Testimony of Erich Seals
Seals also testified at trial. Seals explained that Williams is married to a
woman with whom Seals had a child and that Seals and Williams had issues prior
to the shooting. Seals did not know how old his son was, and he agreed he owed
the mother money for child support. Seals did not recall having a phone
conversation with Williams before April 30, 2013.
Seals’s first incident with Williams was at a pool hall, where Williams
yelled at him and asked him to go outside, and Seals had then feared for his safety.
Seals then saw Williams again a few days later at a gas station where Williams was
“in [his] face” and other people broke them up. Seals had heard that Williams
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carried a weapon. Seals normally carries a gun with him because he makes “cash
money,” is in “business,” and “to protect himself.”
On April 30, 2013, Seals offered the Swans a ride home to the Port Arthur
Park Apartments, and as he entered the complex, he saw Williams but he did not
stop to say anything. After dropping off the Swans, Seals drove to the back gate of
the complex to exit because he did not want to go back where Williams was and he
did not want any trouble. Seals knew that sometimes the exit gate in the back did
not work properly.
According to Seals, when he drove up to the gate, it was not open and he
saw a black car “pretty close[,]” less than a car’s length behind him. Seals could
not back up because the black car was too close and he was “trapped.” Williams
“jumped out of the car[]” and approached Seals’s vehicle and was next to Seals’s
car window.
Williams raised his arms and was punching at Seals and Williams came
towards Seals’s vehicle. Seals did not know what Williams had in his hands or
what Williams had in mind, and Seals testified that “I was fearing for my life and
my safety at the same time.” Seals fired his gun once “to get [Williams] off, get
away from [Williams].” Seals fired the gun through his open car window. Seals
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explained that after the shooting, he drove to his fiancé’s house, then his mother’s
house, and then to the police station where he gave a statement.
Seals cooperated with the police, reenacted the incident, and gave a
statement because it was the truth and he had nothing to hide. Seals told the police
the gun was in his car and he did not tell the police they needed a search warrant
for the gun. Seals did not tell Molfino that he feared for his life because Molfino
did not ask him. Seals explained that he was not the aggressor in the situation and
he was scared of Williams, and Seals thought his life was in danger.
During cross-examination, the State approached the bench and asked to
question Seals concerning another incident that occurred on May 22, 2013 (May
incident) involving Seals and Williams and the State offered certain video evidence
of the May incident. The parties had previously discussed the May incident in a
bench conference outside the presence of the jury, and it was part of the
defendant’s motion in limine. The defense objected to the video and the court
overruled the objections. The trial court verbally instructed the jury regarding the
May incident and the limited use of such information.
The State then cross-examined Seals regarding the May incident. Seals
testified that on the day of the May incident, Seals went to a convenience store on
his lunch break. Williams was at the store and he recognized Williams. Seals
14
agreed he could have walked out, but he grabbed a beer, put it on the counter, and
stood in line a few feet behind Williams. According to Seals, Williams said
something to him and the two men got into an argument or confrontation. Seals left
the store and went to his car and got out a “stick bat” or “a little small bat.” Seals
testified that he and Williams verbally argued but “[n]obody touched anyone.”
Seals recalled giving a statement to the police about the May incident. The
State offered Seals’s statement into evidence, and defense counsel objected on the
basis of hearsay and Rule 403. The court overruled the objections and admitted the
statement. The portion of the statement that includes Seals’s description of the May
incident reads in relevant part as follows:
On or about 5/22/13 at approximately 1:28 p.m. I, Erich S.
Seals, was at “CITGO” located at 1200 Gulfway Drive on my lunch
break. I went to the store to purchase a plate lunch and two beers. I
grab my beers went to the register to pay for them when I saw a m/b
who I know by “Peanut[,”] later identified as Donald Williams. I
knew this to be Williams because of confrontations I’ve had with him
for the past year due to the fact that he’s currently dating my son’s
mother. On April 30, 2013 I had an argument with Williams in Port
Arthur Park Apartments which led me to shooting him. When I saw
Williams he immediately confronted me and said, “I ain[’]t dead, you
didn’t kill me”. Williams and I got nose to nose and began arguing.
After arguing with Williams, he paid for his items and walked outside
towards black in color car. Once I saw this I began walking towards
my truck which was parked at the one of the gas pumps. I went to my
truck out [of] fear that Williams may have a weapon inside his vehicle
due to the fact that I had just shot him less than a month ago. We
continued to exchange words across the parking lot in a manner as if
we were going to fight. During the course of exchanging words I went
15
inside my truck and grabbed a small bat that I had located behind my
seat. I held the bat in my hand and motioned like I was going to come
in his direction, but I didn’t. . . . .
After reading his statement, Seals explained that in the May incident, he felt the
need to pull a weapon to protect himself “[b]ecause [Williams] went to his
vehicle.” Seals also explained that he did not leave the store because he “just was
tired[]” and Seals “was fearing for [his] life[.]” Seals agreed that he had “[p]retty
much” tried to avoid Williams, but when the May incident occurred, Seals felt tired
of having to continually avoid Williams. According to Seals, Seals was not the
aggressor in the May incident, but rather Williams was the aggressor, although
Seals also agreed that he never saw Williams with a weapon.
Seals admitted that he had previously been convicted on a drug charge; but,
he testified that he was a user and he had not been selling drugs. Seals also agreed
that he had been convicted for an assault in 1991.
Other Testimony and Evidence Regarding the May Incident
The State called other witnesses to testify concerning the May incident.
Williams testified that when he saw Seals at the convenience store that day, he
ignored Seals as best he could, but that Seals spoke to him and acted agitated and
aggressive and said “I should have killed [you].” Williams explained that he and
Seals left the store at the same time, and after Seals got to his car, Seals “came
16
back across waving kind of a revolver, a long barrel pistol[]” and pointed the gun
at Williams in the parking lot. Williams called 911 and he was certain Seals had a
gun.
Rogers testified that he and his three-year-old son were with Williams at the
convenience store at the time of the May incident. According to Rogers, Seals and
Williams argued and Seals said to Williams “I should have killed you.” Rogers
recalled that Seals got what looked like an “older gun[]” from Seals’s vehicle, that
it had “a long barrel on the front of it[,]” and Seals then walked out and waved the
weapon around, and Seals was threatening Williams. Rogers described the incident
as “a one-sided event[,]” and he thought Seals was under the influence of drugs or
alcohol at the time.
Molfino testified that he retrieved the surveillance video of the May incident
from the store, and the video was then admitted into evidence as State’s Exhibit 10,
over the defendant’s objection. Molfino described Seals’s conduct in the video:
“He’s wanting to fight. He’s begging him to fight just from watching it without
even hearing the words and you can see the victim’s hands are up, back, passive,
you know, not wanting to fight.” The video was played for the jury.2
2
State’s Exhibit 10 includes no audio.
17
The jury found Seals guilty. Seals elected to have the trial court assess
punishment. Seals pleaded “not true” to the enhancement allegations pertaining to
a prior conviction. The court assessed punishment at twenty-five years in the Texas
Department of Corrections. Seals timely filed a notice of appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue on appeal, Seals argues that he received ineffective
assistance of counsel at trial because his counsel failed to investigate the
circumstances and evidence surrounding the State’s use of a subsequent extraneous
offense. Specifically, Seals alleges that his trial counsel failed to obtain video
evidence of the May incident and to view such evidence prior to trial with Seals.
Seals argues that his trial counsel was aware of the May incident and that the video
existed; and, but for his counsel’s failure to investigate, the result of the proceeding
would have been different.
To prevail on a claim of ineffective assistance of counsel, an appellant must
prove two elements by a preponderance of the evidence: (1) trial counsel’s
performance was deficient; and (2) harm resulted from that deficiency sufficient to
undermine confidence in the outcome of the trial. Strickland v. Washington, 466
U.S. 668, 687, 694 (1984); Ex parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim.
App. 2013). An appellant’s failure to make either of the required showings of
18
deficient performance or sufficient prejudice defeats a claim of ineffective
assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.
2003); see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)
(“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.”).
An ineffective assistance of counsel claim “must be ‘firmly founded in the
record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of
the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Ordinarily, the record on direct appeal is insufficient and does not adequately
reflect trial counsel’s failings, especially when counsel’s reasons for failing to do
something do not appear in the record. Menefield, 363 S.W.3d at 592-93.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance; and, therefore, an appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687. When the
record is silent, an appellate court may not speculate about why counsel acted as he
did. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v.
State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Without
19
testimony from trial counsel, the court must presume counsel had a plausible
reason for his actions. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d).
At trial, during the State’s cross-examination of Seals, the State approached
the bench and argued that Seal’s testimony had “opened the door to bringing in
facts and testimony” pertaining to the May incident. Defense counsel responded
that it had not received the video of this event, despite having asked about it, and
had been told such video did not exist. The State referred to an email from an
attorney for the State advising defense counsel of a video pertaining to two
subsequent and separately-charged offenses and offering to make a copy of the
video for the defense. The defense responded that the only video evidence it had
received included only the reenactment and certain photographs.
The court adjourned briefly in order to view the video. Upon reconvening
but still outside the presence of the jury, the court stated that
. . . It looks like the fact that [defense counsel] did not have a
copy of that file was not really anyone’s fault and I think everyone has
kind of agreed to that[.] . . . So what I am going to do is give [defense
counsel] the afternoon to review that. Get a copy. Go over it and then
we are going to be back in court, the attorneys and you, Mr. Seal[s], at
8 o’clock in the morning and then we will take up any objections with
regard to that.
The parties agreed to this on the record.
20
The record in this matter includes a letter from the State to Seals’s attorneys
purporting to transmit two cds as to three offenses. The trial court concluded that
no one was at fault for the defense counsel’s not having received a video of the
May incident prior to trial.
Appellant did not file a motion for new trial alleging ineffective assistance
of counsel or otherwise develop a record of trial counsel’s reasons for his actions.
The record is silent as to counsel’s trial strategy. See Jensen v. State, 66 S.W.3d
528, 542 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Jackson v.
State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (for a claim of ineffective
assistance of counsel, the record is best developed by an application for a writ of
habeas corpus or a motion for new trial).
Because the record is silent regarding the strategy or decisions of trial
counsel, we may not speculate as to trial counsel’s strategy or conduct. See
Jackson, 877 S.W.2d at 771. Furthermore, Seals has also failed to establish that but
for counsel’s alleged errors the result of the trial would have been different.
Strickland, 466 U.S. at 694. We overrule issue one.
EVIDENCE OF SUBSEQUENT CONDUCT
In his second and third issues, Seals argues that the trial court abused its
discretion in admitting evidence concerning the May incident. Seals’s second issue
21
argues that such evidence was inadmissible under Texas Rule of Evidence 404
because the State merely offered it as “evidence of conforming character.”
According to Seals, at the time the evidence of the May incident was offered,
“[t]he issue of aggressor was determined previously and proven through prior
testimony and there was nothing to rebut.” In his third issue, Seals argues the
evidence was inadmissible under Rule 403 because the evidence of the May
incident was not relevant, was not necessary for the State to prove the elements of
its case, and the evidence caused the jurors to lose focus and set them up to make
their decision on an improper basis.
The State contends that the evidence of the May incident was relevant to
rebut Seals’s defensive theory, “further establishes intent to threaten and harm
Donald Williams[,]” and the similarities between the April shooting and the May
incident are significant. The State argues that “[t]he offenses occurred only three
weeks apart and demonstrated Appellant’s continuing violent aggression toward
the same victim[.]”
We review a trial court’s decision to admit evidence and overrule objections
for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex.
Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of
reasonable disagreement,’ there is no abuse of discretion, and the trial court’s
22
ruling will be upheld.” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g)); State v. Mechler, 153 S.W.3d 435, 439-40
(Tex. Crim. App. 2005). If the trial court’s decision is correct on any theory of law
applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344;
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
The erroneous admission or exclusion of evidence is generally reviewed
under the standard for nonconstitutional error contained in Rule 44.2(b) of the
Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the
rules of evidence. Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001). Under Rule 44.2(b), even if the trial court erred in admitting the
evidence, we may not overturn a criminal conviction for nonconstitutional error if,
after examining the record as a whole, we have fair assurance that the error did not
have a substantial and injurious effect or influence in determining the jury’s
verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). In our
determination of whether error adversely affected the jury’s decision, we consider
everything in the record, including testimony, physical evidence, jury instructions,
the State’s theories, any defensive theories, closing arguments, and voir dire.
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).
23
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Tex. R. Evid. 404(b).3 Rule 404(b) codifies the
common law principle that a defendant should be tried only for the offense for
which he is charged and not for other extraneous crimes. Rogers v. State, 853
S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d
79, 87 (Tex. Crim. App. 2008). “Rule 404(b) sets out an illustrative, not
exhaustive, list of exceptions to the prohibition against admitting evidence of
extraneous offenses including ‘proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.’” Daggett v. State,
187 S.W.3d 444, 451 n.13 (Tex. Crim. App. 2005) (quoting Tex. R. Evid. 404(b))
(emphasis omitted); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).
The Court of Criminal Appeals has explained that “‘Rule 404(b) is a rule of
inclusion rather than exclusion.’ The rule excludes only that evidence that is
offered (or will be used) solely for the purpose of proving bad character and hence
conduct in conformity with that bad character.” De La Paz, 279 S.W.3d at 343
3
Effective April 1, 2015, the Texas Supreme Court and Texas Court of
Criminal Appeals adopted amendments to the Texas Rules of Evidence. See 78
Tex. B.J. 42 (Tex. 2015). The amendments were part of a restyling project. Id. at
42. All citations to the rules of evidence in this opinion refer to the rules in effect at
the time of Seals’s trial.
24
(footnotes omitted) (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir.
2000) (discussing Fed. R. Evid. 404(b)).
“Whether extraneous offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court.” Moses v.
State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Texas courts utilize a two-
step analysis for determining the admissibility of extraneous offenses or uncharged
acts. Rogers, 853 S.W.2d at 32-33. Courts determine first whether the evidence is
relevant to a material issue in the case and second whether the relevant evidence
should be admitted as an exception to Rule 404(b). Id. The trial court’s Rule
404(b) ruling admitting evidence is generally within the zone of reasonable
disagreement “if there is evidence supporting that an extraneous transaction is
relevant to a material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469
(Tex. Crim. App. 2011). When an accused raises a self-defense theory, the State
may introduce extraneous offense evidence to refute a defensive theory raised by
the defense. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001);
Halliburton v. State, 528 S.W.2d 216, 218 (Tex. Crim. App. 1975); Jones v. State,
241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.); Deleon v. State, 126
S.W.3d 210, 216 & n.6 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
25
Even if evidence is admissible under Rule 404(b), it may still be
inadmissible under Rule 403 if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, misleading the jury,
considerations of undue delay, or needless presentation of cumulative evidence.
Casey, 215 S.W.3d at 879; see also Tex. R. Evid. 403. Rule 403 favors the
admission of relevant evidence and carries a presumption that relevant evidence is
more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim.
App. 1996). Unfair prejudice does not mean simply that the evidence injures the
opponent’s case. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).
“Rather[,] it refers to ‘an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.’” Id. (quoting Cohn v. State,
849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). The Rule 403 balancing factors
include, but are not limited to, the following: (1) the probative value of the
evidence; (2) the potential to impress the jury in some irrational, yet indelible, way;
(3) the time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);
Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The trial court is
presumed to have engaged in the required balancing test under Rule 403 once a
party objects on the ground of Rule 403 and the trial court rules on the objection,
26
unless the record indicates otherwise. See Williams v. State, 958 S.W.2d 186, 195-
96 (Tex. Crim. App. 1997). The party opposing admission of the evidence bears
the burden to demonstrate that the danger of unfair prejudice substantially
outweighs the probative value. See Kappel v. State, 402 S.W.3d 490, 494 (Tex.
App.—Houston [14th Dist.] 2013, no pet.).
At trial, Seals argued that, when he shot Williams, Seals feared for his life
and acted in self-defense. In his own testimony, Seals testified that he had “issues”
with Williams prior to the shooting and on one occasion he tried to avoid Williams
when the two men ran into each other at a store. Seals testified that, on the day of
the shooting, he decided to leave the apartment complex by a different exit to avoid
Williams, and he did not want any trouble. He denied having ever told Williams he
was going to shoot him or kill him and explained that, on prior occasions, he had
attempted to avoid Williams.
During the State’s cross-examination of Seals, the State approached the
bench and argued that Seals’s testimony had “opened the door to bringing in facts
and testimony” pertaining to the May incident and that such evidence “clearly
refutes and directly contradicts [Seals’s] own testimony about avoiding
confrontations” with Williams. The State also argued that testimony and video
evidence of the May incident was relevant to show motive or similar scheme. The
27
defense responded that the evidence was inadmissible under Rule of Evidence
404(b) as character evidence offered to prove conformity therewith and Rule 403
as unduly prejudicial. The trial court overruled the objections and admitted the
testimonial and video evidence of the May incident, explaining that the evidence
was relevant to the defense theory of self-defense, to rebut a character trait that
Seals addressed in his own testimony, and also to show common plan or scheme,
motive, or intent. The court gave a limiting instruction to the jury prior to the
display of the video to the jury, and the jury charge also included a limiting
instruction concerning extraneous offense evidence.
Seals testified about the May incident and explained that he and Williams
argued when they ran into one another at a convenience store. According to Seals,
after Williams went to his vehicle, Seals retrieved a bat from his truck to protect
himself. On cross-examination, the following exchange occurred:
[State’s attorney]: Now, prior to the incident and when you had to
defend yourself, had he been the aggressor towards you that entire
time?
[Seals]: Yes, he have [sic].
[State’s attorney]: Prior to the incident when you had to defend
yourself, had you always tried to avoid him?
[Seals]: Pretty much I have.
28
[State’s attorney]: Now, in regards to this second incident that
occurred three weeks later, why didn’t you do what you normally did
by avoiding him?
[Seals]: Because I felt that we was going to start this same thing all
over again. I would have to every time I see him I got to run. I got to
keep moving around and I’m tired. It’s a small town and pretty much
we going to see each other in this town.
The video recording of the May incident shows a person identified as Seals
approach another person identified as Williams and it appears that Seals is
gesturing in an animated manner. Seals can be seen leaving the store and returning
to his truck and then approaching Williams’s car in the parking lot.
The trial court could have reasonably decided that the extraneous evidence at
issue relating to the May incident had non-character conformity relevance because
it was offered to rebut Seals’s defensive theory that he had always tried to avoid
confrontations with Williams, that Williams was the aggressor, and that Seals acted
in self-defense. See Powell, 63 S.W.3d at 438. It is at least subject to reasonable
disagreement whether the extraneous offense evidence made the defensive theory
less probable. This evidence could reasonably be interpreted as showing that Seals
was the aggressor toward Williams on another occasion. Id. (citing Montgomery,
810 S.W.2d at 387) (other crimes, wrongs, or acts evidence has non-character
conformity relevance where it logically serves to make less probable defensive
evidence that undermines an elemental fact). Furthermore, the trial court gave a
29
limiting instruction, and we presume that the jury followed this instruction. See
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).4
The record before us does not affirmatively show that the trial court refused
to conduct a Rule 403 balancing test. Rather, the trial court overruled the Rule 403
objection. We presume the trial court engaged in a balancing test before the court
ruled on the objection. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim.
App. 1997). Furthermore, Rule 403 favors the admission of relevant evidence, and
relevant evidence carries a presumption that it is more probative than prejudicial.
Id. at 196. Seals has failed to overcome the presumption that the evidence was
more probative than prejudicial. See id. at 195-96.
Finally, even assuming the trial court erred in overruling Seals’s objections,
we will not reverse the judgment if the error was harmless. See Tex. R. App. P.
44.2. In addition to hearing Seals’s testimony that he shot Williams, the jury also
heard Williams and Rogers testify that Seals was the aggressor in the shooting and
that Seals could have left the scene by driving through the exit gate at the
apartment complex instead of shooting Williams. The jury also heard Molfino’s
4
We have determined that the trial court could have reasonably concluded
that the evidence of the May incident was relevant to rebut a defensive theory, and
therefore we need not address any other theory under which the evidence may have
been admissible. See Tex. R. App. P. 47.1. We address Seals’s challenge to the
trial court’s limiting instruction later herein.
30
testimony regarding the fact that Seals could have exited, that Seals’s window was
broken and the space of the window would not have allowed Williams to strike
Seals, that there was no evidence that Williams was armed, and that Seals had to
point the gun out of the window, acquire his target, and shoot, which indicated to
Molfino that Seals did not act in self-defense in shooting Williams but rather Seals
was the aggressor. Therefore, we conclude any error in admitting evidence of the
May incident did not affect a substantial right of Seals and any such error must be
disregarded. See Tex. R. App. P. 44.2; Taylor v. State, 268 S.W.3d 571, 592 (Tex.
Crim. App. 2008). We overrule Seals’s second and third issues on appeal.
LIMITING INSTRUCTION
In his fourth issue, Seals argues that the trial court erred by giving an
improper limiting instruction on the use of the extraneous evidence at the time the
evidence was admitted and also in the jury charge. Seals argues that the limiting
instruction given at the time the evidence was admitted was in error because it
“stated nothing about the legal reasons the evidence should come in and amounted
to nothing more than a comment on the weight of the evidence.” As to the jury
charge, Seals argues that it “never explains what the Defense Theory is.” The State
argues that Seals did not object to the limiting instructions at trial and thereby
waived the issue on appeal.
31
When the State first began to question Seals concerning the May incident,
the defense requested a limiting instruction, but did not specify the contents of the
limiting instruction. The court then gave the following verbal instruction:
All right, jury, the information that the district attorney is going
into at this point has to do with another date where some matters
occurred that you are going to hear about. This information is not for
the purpose, necessarily, of showing that Mr. Seals acted in
conformity with the -- or his character is in conformity with what they
are about to talk about. This is to specifically rebut the evidence that
the defense attorney through his client put on with regard to Mr. Seals
being -- not being the aggressor and trying to avoid situations with
Mr. Williams. You are only supposed to listen to it and take it for that
purposes alone, not necessarily to show that at one point he acted the
same way or in conformity there with.
....
Just to try to make it clear, for legal purposes, I’m going to
instruct you again a little more specifically that evidence of other
wrongdoings or acts are not admissible to prove the character of a
person in order to show that he acted in conformity with that. What
you are going to hear and the purpose of it is solely to rebut the
evidence that the defense has put on that Mr. Seals has been not the
aggressor and also that he has generally tried to avoid being in areas
or around Mr. Williams and you are supposed to take it for that
purpose alone.
Defense counsel did not object to the content of the instruction. The jury charge
also included the following instruction:
The State has introduced evidence of extraneous crimes or bad
acts other than the one charged in the indictment in this case. This
evidence was admitted only for the purpose of rebutting the defense
theory. You may only consider it for that purpose. You cannot
32
consider the testimony for that purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such other
acts, if any, were committed.
The only objection defense counsel raised concerning the proposed written
instruction was that it should read “You cannot consider the testimony for that
purpose[]” rather than “You cannot consider the testimony for any purpose[].” The
State did not object, and the court agreed to make the change requested. The final
charge reflects the change as requested by the defense counsel.
Our first duty in analyzing an objection to the jury charge is to decide
whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)
(citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). Then, if
we find error, we analyze that error for harm. Id. (citing Middleton, 125 S.W.3d at
453). Preservation of charge error does not become an issue until we assess harm.
Id. The degree of harm necessary for reversal depends on whether the appellant
preserved the error by objection. Id.
Limiting instructions are governed by Rule 105(a) of the Texas Rules of
Evidence, which states:
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose
is admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly; but, in the absence of
such request the court’s action in admitting such evidence without
limitation shall not be a ground for complaint on appeal.
33
Tex. R. Evid. 105(a). A request for a limiting instruction must be made at the time
of the admission of the evidence. Hammock v. State, 46 S.W.3d 889, 893 (Tex.
Crim. App. 2001). If the jury is required to consider evidence in a limited manner,
then it must do so from the moment the evidence is admitted. Id. at 894.
Appellant cites to Owens v. State, 827 S.W.2d 911, 917 (Tex. Crim. App.
1992) in support of his argument that the jury charge must identify the defensive
theory under which the court admitted evidence of the extraneous conduct. In
Owens, the trial court admitted evidence of extraneous conduct and “[a]t the
conclusion of the trial, the trial judge instructed the jury that it was only to consider
the testimony of [the extraneous offense witness] for the limited purpose of
‘determining the system of the Defendant, if any, in connection with the offense, if
any, alleged against him in the indictment in this case, and for no other purpose.’”
827 S.W.2d at 913. The court of appeals held that such evidence was properly
admitted as an exception to Rule 404(b) “for the purpose of rebutting appellant’s
implicit defensive ‘frame-up’ theory.” Id. at 914.5 The Court of Criminal Appeals
reversed the court of appeals and concluded that there was no basis for admitting
the evidence as an exception to Rule 404(b). Id. at 917. The Court further
explained that
5
See also Owens v. State, 795 S.W.2d 822, 824-25 (Tex. App.—Texarkana
1990), rev’d, 827 S.W.2d 911 (Tex. Crim. App. 1992).
34
. . . even assuming (1) a defensive theory of “frame-up” was
actually raised at trial, and (2) evidence of appellant’s “system” could
have been offered to rebut that theory, this “frame-up” theory was not
presented to the jury in the trial court’s limiting instruction. Absent
such additional instruction, there is no way for an appellate court to
know whether the jury properly applied the evidence of appellant’s
“system” to rebut the weight or credibility of appellant’s “frame-up”
theory or relied on it for an improper basis such as character
conformity.
Id.
We find Owens distinguishable. The defensive theory in Owens was an
“implicit defensive ‘frame-up’ theory[]” that was alleged to have been “‘implicitly
raised’” during the trial. Id. at 914. In the case at bar, however, self-defense was an
explicit affirmative defense raised throughout trial, including in Seals’s own
testimony, and for which a jury charge was given. The jury charge also included
explicit instructions on self-defense, force, and deadly force. The court’s limiting
instruction stated specifically that “the defense has put on that Mr. Seals has been
not the aggressor and also that he has generally tried to avoid being in areas or
around Mr. Williams and you are supposed to take [the extraneous conduct
evidence] for that purpose alone.” On the record before us, we cannot say that the
jury was not informed of the legal reason the extraneous conduct evidence was
admitted or that the jury charge did not explain the defensive theory. Having found
35
that no charge error occurred, we need not perform a harm analysis. See Ngo, 175
S.W.3d at 744. We overrule issue four.
JURY CHARGE ON SELF-DEFENSE
In his fifth issue, Seals argues that the trial court erred in overruling his
objections to the jury charge on the issue of self-defense and that the jurors should
have been instructed to “place themselves into the shoes of the Defendant” in their
determination of whether the use of deadly force was immediately necessary for
self-defense. The State argues that the jury charge and instructions used the
language of the statute and that a defendant is not entitled to non-statutory
instructions on how to consider or evaluate specific types of evidence.
The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. Ann. art. 36.14 (West
2007). A jury charge that tracks the language of a particular statute is a proper
charge. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing
Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994)) (“Following the law as it
is set out by the Texas Legislature will not be deemed error on the part of a trial
judge.”); Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978); Benn v.
State, 110 S.W.3d 645, 648 (Tex. App.—Corpus Christi 2003, no pet.). Jury
36
instructions must be limited to setting forth the law applicable to the case and they
may not express any opinion as to the weight of the evidence. See Tex. Code Crim.
Proc. Ann. art. 36.14; Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App.
2015).
“Non-statutory instructions, even when they are neutral and relate to
statutory offenses or defenses, generally have no place in the charge.” Celis v.
State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013). “Normally, if the instruction
is not derived from the code, it is not ‘applicable law.’” Walters v. State, 247
S.W.3d 204, 214 (Tex. Crim. App. 2007). Consistent with the terms of Article
36.14, jurors should be permitted to “‘freely read [undefined] statutory language to
have any meaning which is acceptable in common parlance.’” Kirsch v. State, 357
S.W.3d 645, 650 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d
388, 390 (Tex. Crim. App. 1995)); see also Medford v. State, 13 S.W.3d 769, 771-
72 (Tex. Crim. App. 2000) (explaining that “terms not legislatively defined are
typically to be understood as ordinary usage allows, and jurors may thus give them
any meaning which is acceptable in common parlance”). Neither the defendant nor
the State is entitled to a special jury instruction relating to a statutory offense or
defense if that instruction (1) is not grounded in the Penal Code, (2) is covered by
the general charge to the jury, and (3) focuses the jury’s attention on a specific type
37
of evidence that may support an element of an offense or a defense. Walters, 247
S.W.3d at 212 (citing generally Giesberg v. State, 984 S.W.2d 245 (Tex. Crim.
App. 1998)). In such a case, the non-statutory instruction would constitute a
prohibited comment on the weight of the evidence. Id.
Under Section 9.31 of the Texas Penal Code, a person may justifiably use
force against another when he reasonably believes that the force is immediately
necessary to protect himself from the other person’s use or attempted use of
unlawful force. Tex. Penal Code Ann. § 9.31 (West 2011). Section 9.32 provides,
in pertinent part, that a person is justified in using deadly force against another if
he would be justified in using force under Section 9.31, and when and to the degree
he reasonably believes the deadly force is immediately necessary to protect himself
against the other person’s use or attempted use of unlawful deadly force. Id.
§§ 9.31, 9.32(a)(1), (a)(2)(A) (West 2011); see also Elizondo v. State, 487 S.W.3d
185, 196 (Tex. Crim. App. 2016).
In this case, the jury charge included the instructions and definitions relevant
to self-defense, force, and deadly force. The jury charge offered by the defense
included the instruction that “you should place yourself in the defendant’s position
and view the[] circumstances from that standpoint alone at the time in question.” In
addressing the defense’s objection, the trial court noted that
38
. . . the first sentence says, A person is justified in using force
against another when and to the degree the actor reasonably believes
the force is immediately necessary. So I believe that covers it. You
can obviously explain that, but that line says specifically to them that
it’s the actor’s belief of what’s reasonably necessary.
The jury instructions define “force” and “deadly force” with respect to what
the defendant reasonably believes. And as to “self-defense,” the charge states “A
person is justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to protect the actor[.]”
On the record before us, we conclude that the trial court did not err in
overruling the objection and denying the defense’s proposed jury charge. The jury
charge used language as provided in the applicable statutory provision, and the
additional language proposed by the defendant was non-statutory language to
which Seals was not entitled. See Celis, 416 S.W.3d at 433; Martinez, 924 S.W.2d
at 699; Riddle, 888 S.W.2d at 8; Duffy, 567 S.W.2d at 204; see also Tex. Code
Crim. Proc. Ann. art. 36.14; Gray, 152 S.W.3d at 127. Having found that no charge
error occurred, we need not perform a harm analysis. See Ngo, 175 S.W.3d at 744.
We overrule issue five.
ADMISSION OF STATEMENTS BY DEFENDANT
In his sixth issue, Seals objects to the admission of his two written
statements given to police and the reenactment video. Seals argues that the written
39
statements and the reenactment video are “hearsay without an exception” and are
“testimonial,” and the written statements and the reenactment video infringe on his
right to remain silent and right against self-incrimination. Seals contends that the
written statements were testimonial under Crawford v. Washington, 541 U.S. 36
(2004), and the statements “amounted to a comment on Appellant’s right to remain
silent.”
The State argues that the statements were admissible as an exception to the
rule against hearsay as statements against interest. The State also argues that article
38.22 of Texas Code of Criminal Procedure does not apply because Seals was not
in custody at the time the reenactment video was created. And, the State further
argues that Appellant did not make a Crawford objection at trial.
a. Admission of the Evidence at Trial and Objections
First written statement. Investigator Molfino testified at trial that he took
Seals’s statement after advising him of his Miranda rights and that the written
statement itself included Miranda warnings that were read to Seals and which were
initialed by Seals. The defense objected to the admission of Seals’s written
statement arguing that it was hearsay, the document “was prepared in anticipation
of litigation[,]” and that it violated the Fifth Amendment. The trial court overruled
all objections and Molfino read the entire statement into the record.
40
Reenactment video. When the State offered Exhibit No. 3, the reenactment
video, into evidence, the defense objected that “the Miranda rights had to be on the
video for it to be admissible under Section 38.22.” The State responded that Seals
. . . had been Mirandized, he understood, he agreed to be
videotaped while demonstrating what exactly happened. He signed the
statement that he understood his rights. He waived those rights and
agreed to speak to police officers. It’s not a confession. It’s a
demonstration of how the events went down. So I don’t feel that it
falls under that provision for a videotaped confession.
Molfino then testified that Seals was “free to leave[,]” was not in custody, had
been advised of his Miranda rights at the time the video was made, that it was only
after the video was made that Seals was arrested, and that the recording was not
custodial. The court overruled the defense objections, explaining:
. . . I am going to overrule the objection and allow it in based on
the fact that there was not a custodial interrogation. The defendant
went himself in person and volunteered this information, in fact, had
been Mirandized, probably even though he may not have needed to be
at one point. And so I don’t think that this video falls under Section
38.22 where he specifically says he is the result of a custodial
interrogation.
Second written statement. The State offered State’s Exhibit No. 9, Seals’s
written statement concerning the May incident, during cross-examination of Seals.
Seals agreed that he chose to speak with a police detective and to give this
statement. The defense objected that the statement was inadmissible as hearsay,
was more prejudicial than probative under Texas Rule of Evidence 403, and was
41
“redundant and cumulative” of Seals’s own testimony. The court overruled the
objections and admitted the statement.
b. Analysis
We first address Seals’s objection on appeal that his written statement
violated his Fifth Amendment right against self-incrimination. We employ a
bifurcated standard of review when reviewing claims concerning Miranda
violations and the admission of statements made as a result of a custodial
interrogation. Pecina v. State, 361 S.W.3d 68, 78-79 (Tex. Crim. App. 2012)
(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We measure
the propriety of the trial court’s ruling under the totality of the circumstances,
extending almost total deference to the trial court’s rulings on questions of
historical fact, as well as on its application of law to fact questions that turn upon
credibility and demeanor. Id. at 79; Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim.
App. 2011).
Under the Fifth Amendment, a defendant shall not “be compelled in any
criminal case to be a witness against himself[.]” U.S. Const. amend. V.; Dansby v.
State, 448 S.W.3d 441, 446 (Tex. Crim. App. 2014). In Miranda, the Supreme
Court created safeguards to protect the privilege against self-incrimination in the
inherently coercive atmosphere of custodial interrogations. Pecina, 361 S.W.3d at
42
75 (citing Miranda v. Arizona, 384 U.S. 436, 441 (1966)). In keeping with those
safeguards, police officers must give Miranda warnings to a person who is in
custody before questioning him. Id. “Only if the person voluntarily and
intelligently waives his Miranda rights, including the right to have an attorney
present during questioning, may his statement be introduced into evidence against
him at trial.” Id.
The evidence at trial reflects that Seals voluntarily appeared at the police
station after the incident because he wanted to tell the police what happened. The
trial court observed that “[t]he defendant went himself in person and volunteered
this information[.]” Additionally, the record reflects that Seals was informed of his
Miranda rights before Seals made his written statement, which also occurred prior
to the video reenactment. We conclude that the trial court did not err in overruling
Seals’s objections and admitting the first written statement and the video
reenactment. As to Seals’s written statement concerning the May incident, the
record shows no Fifth Amendment objection by the defense; consequently, Seals
failed to preserve error, if any, under the Fifth Amendment relating to the second
written statement. We overrule Seals’s Fifth Amendment challenges.
Next, we address Seals’s Crawford argument. “The Sixth Amendment’s
Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused
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shall enjoy the right . . . to be confronted with the witnesses against him.’”
Crawford, 541 U.S. at 42 (quoting U.S. Const. amend. VI). The United States
Supreme Court has applied this rule to “testimonial” statements and held that such
statements are inadmissible at trial unless the witness who made them either takes
the stand to be cross-examined or is unavailable and the defendant had a prior
opportunity to cross-examine the witness. Paredes v. State, 462 S.W.3d 510, 514
(Tex. Crim. App. 2015) (citing Crawford, 541 U.S. at 54).
Admission of hearsay evidence against a criminal defendant may implicate
the confrontation clause because the defendant may not be afforded an opportunity
to confront the out-of-court declarant. Simpson v. State, 119 S.W.3d 262, 269 (Tex.
Crim. App. 2003); Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999)
(citing Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)). Here, the out-of-court
declarant was Seals himself, and Seals testified at trial. Because the complained-of
evidence is a statement by Seals himself, the Sixth Amendment right to confront
witnesses under Crawford is not implicated. Furthermore, Appellant did not make
a Crawford objection to the complained-of evidence at trial. See Crawford, 541
U.S. at 61-69. By failing to make an objection at trial on confrontation clause
grounds, Appellant has not preserved this argument for review. See Tex. R. App. P.
33.1(a); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding that
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objection at trial is required to preserve error on confrontation clause grounds). We
overrule Seals’s Crawford challenge on appeal.
Finally, Seals argues that the two written statements and the video
reenactment were inadmissible hearsay to which no exception applied. At trial, the
defense made a hearsay objection to the admission of the written statement Seals
gave the day of the shooting. The defense also made a hearsay objection to the
admission of the written statement Seals gave concerning the May incident. The
trial court overruled the hearsay objections to the written statements without
elaboration. However, at the trial the defense did not make a hearsay objection to
the admission of the reenactment video. Because the defense did not make a
hearsay objection to the reenactment video at trial, it failed to preserve error on this
issue as to the reenactment video. See, e.g., Ford v. State, 305 S.W.3d 530, 532
(Tex. Crim. App. 2009) (“Preservation of error is a systemic requirement on
appeal.”); Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) (same)
(citing Tex. R. App. P. 33.1). We need not address the merits of an issue that has
not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex.
Crim. App. 2010) (citing Ford, 305 S.W.3d at 532).
Under our Rules of Evidence, a statement is not hearsay if the statement is
offered against a party and is his own statement. Tex. R. Evid. 801(e)(2)(A);
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Saavedra v. State, 297 S.W.3d 342, 344 n.2 (Tex. Crim. App. 2009) (statement is
not hearsay if it is a party’s own statement and is offered against him). An
admission of a party opponent under Rule 801(e)(2)(A) is admissible when the
statement is the opponent’s own statement that is offered against him. Trevino v.
State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). This rule recognizes that the
out-of-court statements of a party differ from the out-of-court statements of non-
parties, and a party is estopped from challenging the fundamental reliability or
trustworthiness of his own statements. Id.
Even if a statement is hearsay, an exception to the rule against hearsay also
allows the admission of statements made against the declarant’s interest. Tex. R.
Evid. 803(24); Coleman v. State, 428 S.W.3d 151, 158 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). The State offered the two written statements given by Seals
and the video reenactment as evidence against Seals. We conclude that the trial
court could have reasonably concluded that the statements and video reenactment
were admissible as non-hearsay admissions by a party opponent. See Saavedra,
297 S.W.3d at 344 n.2. Alternatively, the trial court could have reasonably
concluded that, to the extent the complained-of items contained hearsay, the
evidence was admissible under the statement against interest exception to the
hearsay rule. Tex. R. Evid. 803(24); see Coleman, 428 S.W.3d at 158-59.
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Therefore, we conclude that the trial judge did not err in admitting the complained-
of-items into evidence. Shavers v. State, 985 S.W.2d 284, 290 (Tex. App.—
Beaumont 1999, pet. ref’d). We overrule Seals’s sixth issue.
EVIDENCE OF PRIOR CONVICTION
In his final issue, Seals argues that the evidence of his previous conviction
was insufficient and that the trial court erred in admitting such evidence with
respect to the enhancement allegations. In particular, Seals objects to the admission
of the documents admitted as State’s Exhibit 2, which, he argues, “do not []
contain any identifiable information, such as photographs or a physical description,
that could be used to link Appellant to the [prior] judgment.”
To establish that a defendant has been convicted of a prior offense when a
criminal defendant pleads “not true” to an enhancement allegation, the State must
prove beyond a reasonable doubt that: (1) a prior conviction exists, and (2) the
defendant is linked to that conviction. See Wood v. State, 486 S.W.3d 583, 589-90
(Tex. Crim. App. 2016) (citing Flowers v. State, 220 S.W.3d 919, 923 (Tex. Crim.
App. 2007). No specific document or mode of proof is required. See id. at 588. The
State may introduce documents, admissions or stipulations, or testimonial evidence
sufficient to prove that the defendant was convicted of the enhancement allegation.
Id. (citing Flowers, 220 S.W.3d at 921-22; Chapter 12 of the Texas Penal Code;
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and Tex. Code Crim. Proc. Ann. art. 37.07). The trier of fact looks at the totality of
the evidence to determine whether a previous conviction exists and whether the
defendant was the person convicted. Flowers, 220 S.W.3d at 923.
In this case, the indictment alleged that Seals had previously been convicted
for possession of a controlled substance in 1994. During the punishment phase,
Seals pleaded “[n]ot true” to this enhancement. The State offered Exhibit 2 into
evidence, and the defense objected that the documents therein were “hearsay and
inappropriate evidence to support the judgment or to support a prior
enhancement[,]” especially that the judgment was invalid for failure to have the
defendant’s fingerprint. The trial court overruled the defense objections and
admitted the exhibit.
State’s Exhibit 2 includes the following: a certified 1994 judgment against
Erich Stockley Seals for possession of a controlled substance; a 1994 Agreed
Punishment Recommendation for Erich Seals as to the offense of possession of a
controlled substance, signed by Erich S. Seals; a blank Unagreed Punishment
Recommendations form, signed by Erich S. Seals; a certified 1994 Written Plea
Admonishments for Seals as to the offense of possession of a controlled substance,
signed by Erich S. Seals; a certified 1994 indictment against Seals for possession
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of a controlled substance; and a certified 1994 criminal docket sheet for Cause
Number 67226 against Erich Stockley Seals, including fingerprints.
Under Rule of Evidence 803(22)(B), evidence of a final judgment of
conviction is admissible in a criminal case as an exception to the rule against
hearsay if:
(i) the judgment was entered after a trial or a guilty or nolo contendere
plea;
(ii) the conviction was for a criminal offense;
(iii) the evidence is admitted to prove any fact essential to the
judgment;
(iv) when offered by the prosecutor for a purpose other than
impeachment, the judgment was against the defendant; and
(v) an appeal of the conviction is not pending.
Tex. R. Evid. 803(22)(B). The record reflects that the 1994 judgment against Seals
was for the criminal offense of possession of a controlled substance to which Seals
pleaded “Guilty[.]” The State offered the judgment to support the enhancement
allegation, and the record reflects that no appeal of such conviction was pending.
Accordingly, we conclude that the trial court did not err in overruling Seals’s
hearsay objection.
Seals also complains that the State “chose not to call any witnesses who had
personal knowledge that Appellant was the same defendant named in State’s
Exhibit 2, and Appellant provided no testimony that would link him to the
judgment.” We disagree.
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Deborah Beavers (Beavers), an investigator for the district attorney’s office,
testified for the State. Beavers testified that she took Seals’s fingerprints, and
State’s Exhibit 1, a fingerprint card of Seals’s right thumbprint, was admitted into
evidence. Beavers also testified that she compared the print she took to the
fingerprint contained in State’s Exhibit 2, and that, in her professional opinion, the
fingerprints in State’s Exhibit 2 are the same as the fingerprint of Seals in State’s
Exhibit 1. Also, during the guilt/innocence phase of trial, Seals testified that he had
been convicted for a drug case in 1993 or 1994.
Certified copies of Seals’s prior conviction were admitted into evidence.
Investigator Beavers testified that the fingerprints of Seals that she took matched
the fingerprint in State’s Exhibit 2. Seals also testified that he had a previous
conviction for a drug charge. Under the totality of the circumstances and
considering the documents and testimonial evidence, the trial court did not err in
concluding that the evidence was sufficient to prove that Seals was convicted of
the enhancement allegation. See Wood, 486 S.W.3d at 590; Flowers, 220 S.W.3d at
921-22. We overrule Seals’s seventh issue.
Having overruled all issues raised by Seals, we affirm the judgment of the
trial court.
AFFIRMED.
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_________________________
LEANNE JOHNSON
Justice
Submitted on April 18, 2016
Opinion Delivered August 10, 2016
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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