Kody Austin Lott v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00487-CR
___________________________
KODY AUSTIN LOTT, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 58029-A
and
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. C009529
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Rejecting his defense of insanity, a jury convicted appellant Kody Austin Lott
of murder and of aggravated assault. For the murder, the jury assessed Lott’s
punishment at confinement for life and a $10,000 fine; the jury assessed punishment
at twenty years’ confinement and a $10,000 fine for the aggravated assault. The trial
court sentenced Lott accordingly and ordered that the sentences run concurrently.
On appeal, Lott challenges his convictions and sentences in four issues. Finding no
merit in those issues, we affirm the trial court’s judgments.
I. BACKGROUND
Many students at Wichita Falls’ McNeil Junior High School use a nearby alley
to walk to and from school. When school let out on the afternoon of September 2,
2016, several students, including thirteen-year-old eighth-graders Lauren Landavazo
and Makayla Smith, began walking home down that alley toward Trinidad Drive, as
they had on many other occasions. When they neared the alley’s intersection with
Trinidad Drive, a white male with shaggy brown hair stopped his gold Chevy Tahoe
in the northbound lane of Trinidad Drive, aimed a semi-automatic AR-15 style rifle
into the alley, and opened fire on the children. The driver then sped away.
Several children who had been walking in the alley behind Lauren and Makayla
heard the gunshots, saw Lauren fall and Makayla attempt to run, and scattered for
cover. When the gunshots stopped, some of those children came back into the alley
and discovered that Makayla had fallen to her hands and knees in the alley and was
2
bleeding. She had suffered a single gunshot to her chest, an injury she survived. But
Lauren lay fatally wounded with fifteen gunshots to her head, torso, arms, and hands.
The shooter remained at large until a tip led police to pull over a gold Chevy
Tahoe two days after the shooting. Twenty-year-old Lott was driving, and officers
arrested him after they conducted a consensual search of the Tahoe and found brass
knuckles, which at the time was a prohibited weapon.1 While in custody for the
prohibited weapon, Lott confessed to shooting Lauren and Makayla. He also
confided to police that he had been monitoring media reports of the shooting and
that he had been angry when those reports characterized the shooting as a “senseless
act of violence.” Lott insisted that the shooting was not random or senseless but was
“a sophisticated [expletive] assassination” that he had carried out because he “just
wanted some people to feel a little bit of pain.”
II. SUPPRESSION OF EVIDENCE
Lott filed a pretrial motion asking the trial court to suppress (1) any evidence
seized as a result of the search of the Tahoe because the initial stop was not supported
by reasonable suspicion and (2) evidence of his confession because he did not
knowingly, intelligently, and voluntarily waive his privilege against self-incrimination.
1
At the time Lott was arrested, Section 46.05 provided that intentionally or
knowingly possessing knuckles was a Class A misdemeanor. See Act of May 11, 2015,
84th Leg., R.S., ch. 69, § 1, 2015 Tex. Sess. Law Serv. 1060, 1060–61 (amended 2017
& 2019). Effective September 1, 2019, the legislature amended Section 46.05 to
remove knuckles as a prohibited weapon. See Tex. Penal Code Ann. § 46.05(a)(1).
3
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3, art. 38.23(a). The trial court heard the
motion during trial outside the jury’s presence and denied the motion. The trial court
entered findings and conclusions regarding Lott’s confession and concluded that it
was voluntarily made and admissible.2 See id. art. 38.22, § 6. As to Lott’s challenge to
the stop and subsequent search of the Tahoe, the trial court stated on the record that
the officer had had reasonable suspicion to stop the Tahoe and that the resulting
search of the Tahoe had been conducted with Lott’s consent. In his first two issues,
Lott argues that the denial of his motion to suppress was an abuse of discretion.
A. STANDARDS OF REVIEW
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
the trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
2
The trial court charged the jury not to consider Lott’s statement to
Killingsworth unless the jury determined beyond a reasonable doubt that Lott
voluntarily gave the statement.
4
In other words, we view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly,
204 S.W.3d 808, 819 (Tex. Crim. App. 2006). When the trial court makes explicit fact
findings, we determine whether the evidence when viewed in the light most favorable
to the trial court’s ruling, supports those findings. Kelly, 204 S.W.3d at 818–19; see also
State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (recognizing findings and
conclusions may be “stated on the record at the hearing”). We then review the trial
court’s legal ruling de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 818.
B. TRAFFIC STOP
1. Suppression Hearing
Officer John Gordon of the Wichita Falls Police Department was the only
witness at the suppression hearing regarding the traffic stop. The trial court also
admitted Defendant’s Exhibit 1, which contained a series of 911 calls related to the
shooting investigation.
Gordon was a patrol officer whose duties included conducting traffic stops.
On September 4, 2016, he was aware that the shooting had occurred two days earlier
and that the investigation of that case had taken a high priority within the department.
In fact, before Gordon started his shift that day, he had been told that investigators
had developed a description of the suspect. The suspect was described as a white
5
male who had shoulder-length, possibly shaggy hair and who was driving a gold
Chevy Tahoe.
In the early afternoon, a dispatch came over the computer in his patrol car to
“check suspicious” at the Fountaingate Apartment complex, which is approximately
one block away from the shooting site. The dispatcher’s information was based on a
911 call from Joanne Perez. Perez had told the dispatcher that she had driven by the
location where the shooting had happened and that she had stopped on a nearby road
that went to the Fountaingate Apartments. Perez stated that she had seen a tall, white
male, with shoulder-length hair and driving a gold Chevy Tahoe, park in front of one
of the apartments. She further said that the driver had gotten out of the Tahoe, had
retrieved something out of the back seat, which “looked like a rifle . . . wrapped in
clothes and blankets,” and that he had hurriedly and “suspicious[ly]” taken the bundle
into one of the apartments.
Perez provided the dispatcher with the Tahoe’s license-plate number and the
apartment the driver had gone into. She also told the dispatcher that she was willing
to stay at the scene and speak to officers about the call if needed. She gave the
dispatcher her location and information about the car she was in. Perez then reported
that the driver of the Tahoe had reappeared and was leaving the apartment complex.
The dispatcher instructed Perez to remain where she was; Perez remained on the
phone until the dispatcher informed her that officers had located the Tahoe.
6
The dispatcher told Gordon the basic information Perez had reported.
Specifically, the dispatcher told Gordon that the “check suspicious” dispatch involved
a report that a white male with shoulder-length hair had taken a rifle into one of the
apartments, that he had done so in a hurry, and that he had then left in a gold Chevy
Tahoe. The dispatcher also gave Gordon the license-plate number of the Tahoe and
the direction the Tahoe was heading in. Gordon quickly found the Tahoe at a stop
light.
Gordon followed the Tahoe and confirmed with the dispatcher that the
license-plate number matched Perez’s report. Gordon activated his patrol car’s
emergency lights and stopped the Tahoe, which was driven by Lott. Gordon testified
that he did not have an independent reason for stopping Lott other than the
information he had received from the dispatcher.
2. Applicable Law
In his first issue, Lott contends the trial court erred by denying his motion to
suppress because Gordon did not have reasonable suspicion to initiate the traffic stop,
which rendered the stop unlawful. It is lawful for a police officer to conduct a brief
investigatory detention if the officer has reasonable suspicion of criminal activity. See
Matthews v. State, 431 S.W.3d 596, 602 (Tex. Crim. App. 2014). Reasonable suspicion
exists if the officer has specific, articulable facts that, when combined with rational
inferences from those facts, would lead the officer to reasonably conclude that the
7
person detained is, has been, or soon will be engaged in criminal activity. Ramirez-
Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017).
Reasonable suspicion is an objective standard that disregards the actual
subjective intent of the detaining officer and instead looks to whether there was an
objectively justifiable basis for the detention. Wade v. State, 422 S.W.3d 661, 668 (Tex.
Crim. App. 2013). We determine whether an investigatory detention was supported
by reasonable suspicion by considering the totality of the circumstances. Delafuente v.
State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). As the name itself suggests, the
totality-of-the-circumstances test does not look to individual circumstances in
isolation. See Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
Actions in a series may appear innocent when viewed in isolation but may
nevertheless reasonably suggest recent or imminent criminal conduct when viewed in
the context of the totality of the circumstances. Arguellez v. State, 409 S.W.3d 657, 663
(Tex. Crim. App. 2013).
Additionally, the detaining officer need not be personally aware of every fact
that objectively supports reasonable suspicion. Derichsweiler, 348 S.W.3d at 914. We
are to consider the cumulative information known to the cooperating officers at the
time of the stop, and a police dispatcher is ordinarily regarded as a cooperating officer
for that purpose. Id. Information provided to police by a citizen-informant who
identifies herself and who may be held to account for the accuracy and veracity of her
report may be regarded as reliable. Id.
8
3. Discussion
Lott argues that the individual facts the trial court heard at the suppression
hearing did not establish reasonable suspicion for the stop. For example, Lott
maintains that the dispatcher’s description of a white male with shoulder-length hair
was simply too generic to tie him to criminal activity. He argues that merely because
someone carries a rifle into an apartment does not indicate that person is, has been, or
will be involved in criminal conduct. He contends that the apartment identified in the
“check suspicious” dispatch was not close enough to the shooting scene to raise
reasonable suspicion. And he suggests that too much time had passed since the
shooting to satisfy the reasonable-suspicion standard. But as noted above, a
reasonable-suspicion analysis is not based on events in isolation but on the totality of
the circumstances. Arguellez, 409 S.W.3d at 663.
At the suppression hearing, Gordon testified that before he received the
dispatch, he had been briefed about the shooting and given a description of the
shooter and his car. Gordon initiated the traffic stop based on the information from
the “check suspicious” dispatch. That dispatch information was based on Perez’s 911
call, which was admitted into evidence at the suppression hearing. During the 911
call, Perez identified herself to the dispatcher and was in a position to be accountable
for the report she was making. The trial court was entitled to treat the information
Perez conveyed to the dispatcher as reliable. See Derichsweiler, 348 S.W.3d at 914–15;
9
Clary v. State, No. 09-16-00377-CR, 2018 WL 651252, at *3 (Tex. App.—Beaumont
Jan. 31, 2018, no pet.) (mem. op., not designated for publication).
When determining whether reliable information that a known citizen-informant
provides to police was sufficient to furnish police with reasonable suspicion, we look
to whether that information, “viewed through the prism of the detaining officer’s
particular level of knowledge and experience, objectively supports a reasonable
suspicion to believe that criminal activity is afoot.” Deirchsweiler, 348 S.W.3d at 914; see
Cook v. State, 509 S.W.3d 591, 601–02 (Tex. App.—Fort Worth 2016, no pet.).
Viewing the information Perez provided through the prism of Gordon’s particular
level of knowledge and experience, we conclude Gordon had reasonable suspicion to
believe that the driver of the gold Chevy Tahoe Perez reported to the dispatcher, who
turned out to be Lott, may have been involved in the shooting of Lauren and
Makayla. We conclude that the evidence, viewed deferentially, supported the trial
court’s findings and that the trial court properly applied the law to those found facts.
We overrule Lott’s first issue.
C. CONFESSION
After his arrest for possession of a prohibited weapon, Lott was eventually
taken to an interview room at the Wichita Falls Police Department, where two police
officers interviewed him over the course of nearly four hours. During the interview,
which was videotaped, Lott confessed to shooting Lauren and Makayla. In his second
issue, Lott contends that the trial court abused its discretion by denying his motion to
10
suppress his confession because he did not knowingly, intelligently, and voluntarily
waive his rights. For the following reasons, we conclude that the trial court properly
applied the law to the supported facts it found and we overrule issue two.
1. Suppression Hearing
On January 31, 2018, nearly eight months before trial and over fifteen months
after the offense date, Lott’s counsel filed a motion for a competency examination,
asserting that he was unable to effectively communicate with Lott and that Lott
appeared to lack a rational or factual understanding of the nature of the proceedings
against him. Lott’s counsel asked the trial court to appoint an expert to examine Lott
and to provide a report as to Lott’s competency to stand trial. The trial court granted
the motion and appointed Dr. Stacey Shipley to examine Lott. On March 23, 2018,
the trial court signed a judgment of incompetency in which it found, based on
Shipley’s report, that Lott was incompetent to stand trial because of mental illness and
ordered him committed with the objective to attain competency to stand trial.
Shipley’s report was not introduced at the suppression hearing, and neither
party requested the trial court to take judicial notice of the report for purposes of that
hearing. The trial court took judicial notice of Lott’s pretrial motion for a
competency examination, of the trial court’s order on that motion, and of the trial
court’s subsequent judgment of incompetency. The trial court additionally admitted
Court’s Exhibit 2, which was a copy of the statutory warnings set forth in Article
11
38.22. Officer Allen Killingsworth was the only witness at the suppression hearing to
testify regarding Lott’s confession.
Killingsworth, a 26-year veteran of the police department, testified that on
September 4, 2016, he interviewed Lott after Lott’s arrest.3 Killingsworth stated that
as a detective in the crimes-against-persons unit, he had received training in how to
conduct homicide investigations as well as in how to obtain statements from
witnesses and suspects.
Before interviewing Lott, Killingsworth presented Lott with Court’s Exhibit 2,
which contained the following statutory warnings:
1. I have the right to remain silent and not make any statement at all
and that any statement I make may be used against me at my trial;
2. Any statement I make may be used as evidence against me in
court;
3. I have the right to have a lawyer present to advise me prior to and
during any questioning;
4. If I am unable to employ a lawyer, I have the right to have a
lawyer appointed to advise me prior to and during any
questioning, and;
5. I have the right to terminate the interview at any time.
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2). Lott wrote his initials next to
each warning. The form contained a sentence stating that Lott’s signature indicated
3
Killingsworth testified that the interview was recorded by audio and video.
Neither the audio recording nor the video recording were introduced at the
suppression hearing.
12
that he had read and understood the enumerated warnings and that he was waiving his
rights “voluntarily without duress, coercion, unlawful influence or inducement, or
promise of reward, clemency[,] or immunity.” Lott signed the form. Killingsworth
also verbally apprised Lott of these rights. Along with signing the form, Lott verbally
agreed to waive his rights and to submit to an interview.
Killingsworth testified that when he was reading the warnings to Lott, Lott
could have asked him questions but did not do so. Lott never asked to terminate the
interview. Killingsworth stated that he did not coerce or threaten Lott at any time and
he opined that Lott voluntarily and intelligently waived his rights. Additionally,
Killingsworth testified that based on his experience as a police officer, which included
dealing with mentally ill people, Lott did not appear to be under any type of delusion
during the interview.
Killingsworth indicated that Lott appeared to understand the questions he was
being asked during the interview and that he responded intelligently to those
questions. He said that if at any time Lott had appeared to be under any type of
delusion or to be in need of immediate mental health assistance, he would have
terminated his interview of Lott. Killingsworth further testified that he also would
have terminated the interview if Lott had given any indication that he did not
understand his rights. Killingsworth acknowledged that Lott made statements about
the devil during the interview, recounted that he previously had been in a psychiatric
13
hospital, and was in drug withdrawal; but Killingsworth nevertheless maintained that
Lott was not delusional during the interview.
In denying Lott’s motion to suppress evidence of his confession, the trial court
expressly found that
[1.] The accused was given the warnings required by Article 38.22,
Section 2(a), of the Texas Code of Criminal Procedure prior to his
statement. The accused knowingly, intelligently[,] and voluntarily waived
his rights set out in the warnings.
[2.] The accused thereafter gave an oral statement to detectives of the
Wichita Falls Police Department in the Crimes Against Persons Unit.
Those detectives complied with the applicable provisions of Article
38.22, Section 3, of the Texas Code of Criminal Procedure.
[3.] The statement [occurred during] a custodial interrogation.
[4.] The statement was made under voluntary conditions, as a matter of
law and fact.
2. Applicable Law
a. Fifth Amendment privilege against self-incrimination
The Fifth Amendment, which is applicable to the states, provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V; see Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008).
Under the privilege, statements obtained from an accused during a custodial
interrogation are inadmissible unless the government demonstrates that it first
observed certain procedural safeguards. See Miranda v. Arizona, 384 U.S. 436, 444
(1966); Pecina v. State, 361 S.W.3d 68, 75 (Tex. Crim. App. 2012). Those procedural
14
safeguards include advising the accused of the warnings spelled out in Miranda.
384 U.S. at 444, 467–73; see Pecina, 361 S.W.3d at 75. And under Miranda, statements
an accused makes during a custodial interrogation are inadmissible at trial unless the
accused is advised of his rights and knowingly, intelligently, and voluntarily waives
them. Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010); Pecina, 361 S.W.3d at 75.
b. Statutory protection against self-incrimination
In addition to being governed by Miranda, an accused’s privilege against self-
incrimination during a custodial interrogation is protected under Article 38.22. Tex.
Code Crim. Proc. Ann. art. 38.22; see Joseph v. State, 309 S.W.3d 20, 23–24 (Tex. Crim.
App. 2010). Oral statements a defendant makes during a custodial interrogation are
inadmissible at trial unless the defendant is first given the statutorily required warnings
and thereafter knowingly, intelligently, and voluntarily waives those stated rights. See
Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2). These warnings are virtually identical
to the Miranda warnings, with one exception—Article 38.22 includes an additional
warning that the accused “has the right to terminate the interview at any time.” Tex.
Code Crim. Proc. Ann. art. 38.22, § 2(a)(5); see Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007).
c. Waiver of rights
Here, there is no dispute that Lott’s lengthy confession occurred during a
custodial interrogation. Accordingly, to demonstrate the confession was not barred
under Miranda or Article 38.22, the State bore the burden to show by a preponderance
15
of the evidence that Lott validly waived his rights. See Joseph, 309 S.W.3d at 24;
Herrera, 241 S.W.3d at 526. The inquiry into whether a defendant’s waiver was valid
has two facets. See Berghuis, 560 U.S. at 382–83; Joseph, 309 S.W.3d at 25. First, the
waiver must have been “voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” Berghuis, 560 U.S.
at 382; see Joseph, 309 S.W.3d at 25. And second, the waiver must have been “made
with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Berghuis, 560 U.S. at 382–83; see Joseph,
309 S.W.3d at 25. We determine whether a waiver was valid by considering the
totality of the circumstances surrounding the interrogation. Joseph, 309 S.W.3d at 25.
The totality of the circumstances includes the defendant’s experience, background,
and conduct. Id.
3. Discussion
As we construe his second issue, Lott argues that his waiver was invalid under
Article 38.22 because it was neither voluntary nor knowing and intelligent. He also
contends that his waiver was invalid under Miranda because it was not knowing and
intelligent.
a. Voluntary waiver of rights under Miranda
In his brief, Lott states that he makes “no assertion that [he] was subjected to
official intimidation that would implicate a Miranda involuntariness claim.” He further
states that his involuntary-waiver argument is predicated on his assertion that his
16
mental illness rendered him unable to knowingly, intelligently, and voluntarily waive
his rights against self-incrimination. Lott specifically states that his claim of
involuntariness is based on his state of mind, not on any governmental intimidation,
coercion, or deception. Thus, any involuntary-waiver complaint would not be
governed by Miranda. See Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App.
2008) (noting that because Miranda protects defendants against improper government
coercion, “Miranda claims of involuntariness generally do not require ‘sweeping
inquiries into the state of mind of a criminal defendant who has confessed’” and that
the United States Constitution “leaves voluntariness claims based on the defendant’s
state of mind ‘to be resolved by state laws governing the admission of evidence,’”
which in Texas is Article 38.22 (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986))).
b. Voluntary waiver of rights under Article 38.22
Lott argues that his rights waiver was involuntary because the record
established he had been diagnosed with schizoaffective disorder a year before his
confession, rendering his confession a product not of his free and deliberate choice
but of compulsions sparked by his mental illness.
Unlike a claim of involuntariness under Miranda, a defendant’s claim that his
waiver of rights under Article 38.22 was involuntary need not be predicated on
evidence of police overreaching. See Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim.
App. 2011). Under the totality of the circumstances test, many factors, including the
defendant’s mental illness, may be relevant in determining whether a defendant’s
17
waiver of rights under Article 38.22 was voluntary—the product of his free and
deliberate choice. See Oursbourn, 259 S.W.3d at 172–73; Williams v. State, 502 S.W.3d
262, 272 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
To support his argument that his mental illness rendered his waiver
involuntary, Lott relies heavily upon Shipley’s report prepared after Lott’s pretrial
competency examination. He also appears to rely on the video of his custodial
interrogation, which the State later introduced at trial as rebuttal evidence. But as the
State points out, Shipley’s report was not before the trial court during the suppression
hearing—neither party introduced it into evidence, and the trial court did not take
judicial notice of it. Nor did either party introduce the video of Lott’s custodial
interview at the suppression hearing. In determining whether the trial court’s ruling
on a motion to suppress is supported by the record, we generally consider only
evidence adduced at the suppression hearing. See Perez v. State, 495 S.W.3d 374, 387
(Tex. App.—Houston [14th Dist.] 2016, no pet.); McQuarters v. State, 58 S.W.3d 250,
255 (Tex. App—Fort Worth 2001, pet. ref’d). And while there is an exception to this
rule when the parties consensually relitigate the suppression issue during trial, see Perez,
495 S.W.3d at 387; McQuarters, 58 S.W.3d at 255, the parties did not do so here.
Accordingly, neither Shipley’s report nor the video of Lott’s custodial interview can
factor into our analysis of the trial court’s ruling on Lott’s motion to suppress
evidence of his confession. See Perez, 495 S.W.3d at 387 (“[T]his Court may only
18
consider evidence available to the trial court when it ruled on the motion to
suppress.”).
The evidence adduced at the suppression hearing shows that almost nineteen
months after Lott’s confession, the trial court determined that he was incompetent to
stand trial because of mental illness. While this fact is relevant to a determination of
whether Lott’s waiver was voluntary, it is not conclusive. See Umana v. State,
447 S.W.3d 346, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Nor is it the
only fact relevant to our analysis. The trial court was entitled to find Killingsworth’s
testimony credible, a finding that we do not second-guess. See Wiede, 214 S.W.3d at
24–25. Given Killingsworth’s training and background, the trial court could have
afforded great weight to his opinion that Lott’s waiver was voluntary based on
Killingsworth’s first-hand observations that when Lott waived his rights and
responded to questioning, Lott was speaking intelligently, was not delusional, and was
not exhibiting any symptoms of someone in need of immediate mental-health
assistance, Lott’s statements about the devil notwithstanding. See Umana, 447 S.W.3d
at 356 (concluding self-reported mental illness did not render statement involuntary
because totality of circumstances surrounding statement revealed clear, voluntary
waiver); cf. Sebring v. State, No. 14-13-01046-CR, 2015 WL 3917982, at *8 (Tex. App.—
Houston [14th Dist.] June 25, 2015, pet. ref’d) (mem. op., not designated for
publication) (concluding statement was voluntary based on officer’s testimony that
19
appellant was quiet, coherent, clear, alert, and rational despite having taken sleep
medication).
The totality of the circumstances here supported the trial court’s determination
that Lott’s mental illness did not render him incapable of understanding the meaning
and effect of his waiver and confession and, thus, that both were voluntarily made.
See Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970); Routh v. State,
516 S.W.3d 677, 702–03 (Tex. App.—Eastland 2017, no pet.); Stinnett v. State,
720 S.W.2d 663, 667 (Tex. App.—Amarillo 1986, no pet.).
c. Knowing and intelligent waiver under Miranda and Article 38.22
Lott also contends that he did not knowingly and intelligently waive his rights
under Miranda or Article 38.22.4 He again points to his mental illness, claiming that
the symptoms of his schizoaffective disorder rendered him unable to have a full
4
The State suggests that Lott’s failure to assert that his waiver of rights under
Miranda was the product of police coercion forecloses any claim that his waiver under
Miranda was not knowing or intelligent. But we find Leza instructive here. See
351 S.W.3d at 348–51. Leza asserted that his Miranda waiver had not been voluntary,
knowing, and intelligent because he was under the influence of heroin at the time he
made the waiver. Id. at 350. The court held Leza’s involuntariness claim under
Miranda was foreclosed as a matter of law because he did not assert that his waiver
resulted from police coercion. Id. But the court also concluded that the absence of
police coercion did not similarly foreclose the appellant’s claim that he did not
knowingly and intelligently waive his rights. Id. at 351. The court explained that
Leza’s heroin use “[had] a bearing on his comprehension” and thus was “a factor that
[was] relevant to determining whether [his] Miranda waiver was knowing and
intelligent.” Id. Similarly, while Lott may not assert that his Miranda waiver was
involuntary in the absence of police coercion, he may assert a claim that his Miranda
waiver was not knowingly and intelligently made. See id. at 348–51.
20
awareness both of the nature of the rights being abandoned and of the consequences
of the decision to abandon it. See Berghuis, 560 U.S. at 382–83; Joseph, 309 S.W.3d at
25. But in making this argument, Lott again relies on Shipley’s report, which we
cannot factor into our analysis.
To determine that Lott’s waiver was knowing and intelligent, the record need
only reveal that Lott at all times knew he could remain silent and was aware of the
State’s intention to use his statements to secure a conviction. See Leza, 351 S.W.3d at
349. In other words, Lott’s waiver was knowing and intelligent if the record showed
that he was made aware, and fully comprehended, that he had the right to remain
silent in the face of police interrogation and to discontinue the dialogue at any time,
and that the consequence of his waiver was that his words might be used against him
later in a court of law. See id.
The record supports a finding that Lott was made aware of, and fully
comprehended, these particular rights and consequences. Before his custodial
interview, Lott received a document that spelled out these rights and consequences,
and he initialed and signed that document to affirm that he had both read these
warnings and comprehended them. Killingsworth read these warnings to Lott. Based
on Killingsworth’s experience and training and on Lott’s behavior, Killingsworth
believed that Lott’s statement was intelligent and knowing. In view of the totality of
the circumstances surrounding Lott’s custodial interview, we conclude that a
preponderance of the evidence supports a finding that before confessing to shooting
21
Lauren and Makayla during the custodial interview, Lott knowingly and intelligently
waived his rights under Miranda and Article 38.22.
III. COURT-ORDERED PSYCHIATRIC EXAMINATION
Lott argues in his third issue that the trial court erred by ordering him to
submit to a pretrial psychiatric examination conducted by an expert retained by the
State.
Before trial, Lott filed a notice stating his intent to assert the affirmative
defense of insanity. See Tex. Penal Code Ann. § 8.01; Tex. Code Crim. Proc. Ann.
art. 46C.051. In response, the State filed a motion asking the trial court to allow a
State-retained expert to conduct a psychiatric evaluation of Lott for purposes of
rebutting any expert testimony Lott would present at trial in support of his insanity
defense. Lott objected to the State’s request, arguing that compelling him to submit
to such an examination would violate his constitutional right to be protected from
compelled self-incrimination, would violate his constitutional right to due process,
would violate his right to present insanity evidence without submitting to a State-
sponsored examination, and would run afoul of the statutory requirement that an
appointed expert be disinterested. See U.S. Const. amends. V, XIV; Tex. Const. art. I,
§§ 10, 19; Tex. Code Crim. Proc. Ann. arts. 1.04, 1.05, 46C.101, 46C.107. In the
alternative to these assertions, Lott requested that any ordered examination be limited
“to omit any discussion with the defendant of the facts and circumstances of the
offense.” After a hearing, the trial court granted the State’s motion. In doing so, the
22
trial court ordered that neither the prosecutors nor Lott’s defense attorneys could be
present during the State’s expert’s examination. The State retained Dr. Randall Price
to examine Lott.
During his case-in-chief, Lott presented testimony from his expert, Dr. Brian
Falls, who said that he had examined Lott and that his opinion was that Lott was
insane when he shot Lauren and Makayla. To rebut Falls’s testimony, the State called
Price to the stand and, without objection from Lott, Price contradicted Falls’s
testimony and opined that Lott was not insane at the time of the shooting.
On appeal, Lott argues that the trial court erred by granting the State’s motion
because it violated the constitutional and statutory rights he asserted in his objections
to the State’s motion. He again raises his assertion that Price should not have been
allowed to question Lott about the circumstances of the offense. He additionally
argues for the first time on appeal that the ruling violated his Sixth Amendment
rights. For the following reasons, we conclude that the trial court did not err by
ordering Lott to submit to a psychiatric examination with Price for rebuttal purposes
and overrule his third issue.
A. PRESERVATION
We first address whether Lott preserved for our review his appellate
psychiatric-examination arguments. See Darcy v. State, 488 S.W.3d 325, 328 (Tex. Crim.
App. 2016). The State contends that Lott did not preserve any of the complaints
raised in his third issue because he did not re-urge those objections when Price
23
testified at trial.5 Regarding Lott’s trial objections based on due process, self-
incrimination, the right to raise insanity without a compelled examination, and the
right to a disinterested expert, Lott challenges on appeal the trial court’s ruling on the
State’s motion for a compelled examination, not the subsequent admission of Price’s
testimony. Cf. Estelle v. Smith, 451 U.S. 454, 461 (1981) (addressing whether trial
court’s admission of testimony of expert, who performed a court-ordered psychiatric
examination, violated defendant’s constitutional privilege against self-incrimination);
Darcy, 488 S.W.3d at 329 (distinguishing right to counsel at critical stage of trial, which
is a waivable-only right, from the right to prevent the admission of evidence obtained
in violation of the right to counsel, which is a forfeitable right); State v. Santistevan,
148 P.3d 1273, 1275 (Idaho Ct. App. 2006) (addressing whether “compelled mental
examination is a per se violation of [a defendant’s] constitutional privilege against self-
incrimination”). By granting the State’s motion, the trial court implicitly overruled
Lott’s objections. See Tex. R. App. P. 33.1(a)(2)(A). These arguments were, therefore,
preserved for our review. See Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App.
2013).
Lott asserts on appeal that the court-ordered psychiatric examination with Price
violated his rights to confrontation and to the assistance of counsel. See U.S. Const.
We agree with the State that Lott’s failure to object to Price’s testimony at trial
5
could factor into an analysis of whether any error in the trial court’s order was
harmful, but harm is a separate question from whether Lott preserved any error in
that ruling. Compare Tex. R. App. P. 33.1(a), with Tex. R. App. P. 44.2.
24
amend. VI. The confrontation right is forfeitable and, thus, subject to the rules of
preservation. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2014); Robinson
v. State, 310 S.W.3d 574, 577 (Tex. App.—Fort Worth 2010, no pet.). Lott did not
object to the State’s request for a court-ordered psychiatric examination on
confrontation grounds, failing to preserve this complaint for our review. See Tex. R.
App. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). But Lott
did not forfeit his appellate assistance-of-counsel argument by not objecting to the
court-ordered psychiatric examination based on the Sixth Amendment right to
counsel. See Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014); see also Darcy,
488 S.W.3d at 329. The Sixth Amendment right to the assistance of counsel is a
waivable-only right that cannot be surrendered by mere inaction.6 See Darcy, 488
S.W.3d at 329; Gilley, 418 S.W.3d at 119.
Lott also contends on appeal as he did in the trial court that Price should not
have been allowed to elicit “any statements regarding the crimes for which [Lott] was
charged,” which is an argument directed to the admission of Price’s testimony about
Lott’s statements during the examination.7 Lott asserts that because the State already
had Lott’s confession and because Price had Lott’s phone calls from jail and his prior
6
By contrast, however, the right to prevent the admission of evidence that was
obtained in violation of the right to counsel is a forfeitable right that must be
preserved at trial. See Darcy, 488 S.W.3d at 329.
7
Indeed, Lott asserts that the absence of such limits on Price’s examination
“hindered defense counsel’s cross[-]examination at trial.”
25
psychological records, “[t]here was no need for the expert to extract more
information from Lott regarding the offenses.”8 But Price was specifically tasked with
determining Lott’s sanity at the time of the offenses to rebut Lott’s insanity defense.
Such a determination necessarily would require Price to question Lott about the
surrounding circumstances of the offenses. See United States v. Leonard, 609 F.2d 1163,
1165 (5th Cir. 1980) (“[P]sychiatrists would not be able to obtain reliable testimony
[on the issue of sanity] unless they were free to inquire into the prior conduct of the
defendant, including his participation in the criminal activity with which he is
charged.”). Lott’s remedy to exclude such statements from the jury’s consideration
would have been to object to Price’s testimony regarding the circumstances of the
offense on the basis of the Fifth Amendment.9 See United States v. Cohen, 530 F.2d 43,
47–48 (5th Cir. 1976) (recognizing eliciting inculpatory statements at compulsory
examination is not unconstitutional per se because any statement about the offense
itself may be excluded). This he did not do, thereby failing to preserve any error in
the admission of Lott’s inculpatory statements to Price, partially forming the basis of
Price’s sanity opinion. See Tex. R. Evid. 103(a)(1); In re Commitment of Petersimes,
122 S.W.3d 370, 372–73 (Tex. App.—Beaumont 2003, pet. denied).
8
Price testified that he relied on this information as well as his examination of
Lott to reach his expert opinion.
9
The record reflects that Price prepared a report, which the State produced to
Lott before Price testified. The report was not admitted into evidence.
26
Finally, we recognize that Lott has not separately briefed his due-process and
self-incrimination appellate arguments based on the United States Constitution from
his arguments based on the Texas Constitution or on the Code of Criminal
Procedure. And he has not asserted that these state grounds afford him greater
protection than the United States Constitution does. Accordingly, we need not
address these particular state-law arguments separately from Lott’s federal
constitutional arguments.10 See Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App.
2012); Merrick v. State, 567 S.W.3d 359, 365 (Tex. App.—Fort Worth 2018, pet. ref’d).
B. SELF-INCRIMINATION
Lott complains that by compelling him to submit to Price’s psychiatric
examination, the trial court violated his privilege against self-incrimination. Both Lott
and the State suggest that there are no Texas cases addressing the specific complaint
Lott raises here. While that may be true, the court of criminal appeals has addressed
claims similar to Lott’s in what we conclude is an analogous context—the use of
psychiatric examinations on the issue of a defendant’s future dangerousness during
the punishment phase of a capital-murder case. See, e.g., Wilkens v. State, 847 S.W.2d
547, 552 (Tex. Crim. App. 1992).
In Soria v. State, the court of criminal appeals, in a lengthy analysis and applying
Supreme Court precedent, held that
Lott did provide separate argument concerning Chapter 46C of the Code of
10
Criminal Procedure; thus, we will address that contention.
27
when the defendant initiates a psychiatric examination and based thereon
presents psychiatric testimony on the issue of future dangerousness, the
trial court may compel an examination of appellant by an expert of the
State’s or court’s choosing and the State may present rebuttal testimony
of that expert based upon his examination of the defendant; provided,
however, that the rebuttal testimony is limited to the issues raised by the
defense expert.
933 S.W.2d 46, 57–58 (Tex. Crim. App. 1996) (footnotes omitted). The court
expanded the scope of that holding in Lagrone v. State, holding that trial courts may
“order criminal defendants to submit to a state-sponsored psychiatric exam on future
dangerousness when the defense introduces, or plans to introduce, its own future
dangerousness expert testimony.” 942 S.W.2d 602, 611 (Tex. Crim. App. 1997). The
Lagrone court noted that Soria had been “based upon the premise that ‘a defendant
waives his Fifth Amendment rights to a limited extent by presenting psychiatric
testimony on his behalf’” and “explained that the ‘introduction by the defense of
psychiatric testimony based upon an examination of the defendant constitute[s] a
waiver of the defendant’s Fifth Amendment privilege in the same manner as would the
defendant’s election to testify at trial.’” Id. at 610–11 (quoting Battie v. Estelle, 655 F.2d 692,
701–02 (5th Cir. 1981) and Soria, 933 S.W.2d at 53–54).
The court also recognized that forbidding a trial court from ordering a
psychiatric examination on the issue of future dangerousness until after the defense
has already presented his own expert testimony on that issue was “bound to work
against the State in almost every case” because by that point, the defendant, having
already reaped the benefit of his own expert’s testimony, could simply fail to
28
cooperate with the State’s expert. See id. at 611. The court held that its “sense of
justice [would] not tolerate allowing criminal defendants to testify through [a] defense
expert and then use the Fifth Amendment privilege against self-incrimination to shield
themselves from cross-examination on the issues which they have put in dispute.” Id.
We fail to see why the court of criminal appeals’ holdings in Soria and Lagrone
would not apply here. And the federal courts have uniformly held that where a
defendant raises a mental-status defense such as insanity during the guilt-innocence
phase of trial, the constitution does not prohibit a trial court from ordering the
defendant to undergo a psychiatric examination for the limited purpose of rebutting
the asserted defense. See United States v. Byers, 740 F.2d 1104, 1111 (D.C. Cir. 1984)
(plurality opinion) (collecting cases); Cohen, 530 F.2d at 47 (holding “compelled
psychiatric examination [may be ordered] when a defendant has raised the insanity
defense”); see also Kansas v. Cheever, 571 U.S. 87, 94 (2013) (“[W]here a defense expert
who has examined the defendant testifies that the defendant lacked the requisite
mental state to commit an offense, the prosecution may present psychiatric evidence
in rebuttal.”).
Here, the trial court ordered Lott to submit to a psychiatric examination with
Price only after Lott filed notice that he intended to raise insanity. Given that fact,
and based on the above authorities, we conclude that the trial court did not violate
Lott’s Fifth Amendment privilege against self-incrimination by ordering him to
submit to that examination to rebut Lott’s insanity defense.
29
C. ASSISTANCE OF COUNSEL AND DUE PROCESS
Lott contends that the trial court violated his Sixth Amendment right to
assistance of counsel by ordering that his attorney could not be present during his
examination with Price and by failing to provide formal notice of the date and scope
of the examination. Liberally construing his brief, we determine that Lott argues
these failures also violated his right to due process under the Fourteenth Amendment.
See Tex. R. App. P. 38.9.
We first consider Lott’s contention that he had a Sixth Amendment right to
have his counsel present at the examination and that counsel’s absence deprived Lott
of due process. As we did with Lott’s Fifth Amendment argument, we find applicable
here the court of criminal appeals’ analysis of similar claims concerning the use of
psychiatric examinations on the issue of a defendant’s future dangerousness during
the punishment phase of a capital-murder trial. The court of criminal appeals has
held that a psychiatric examination is not an adversary proceeding; rather, its sole
purpose is to enable an expert to form an opinion as to some aspect of an accused’s
mental state. Stultz v. State, 500 S.W.2d 853, 855 (Tex. Crim. App. 1973); see also In re
State, No. 08-18-00102-CR, 2019 WL 3001520, at *3 n.2 (Tex. App.—El Paso July 10,
2019, orig. proceeding). And “[b]ecause of the intimate, personal[,] and highly
subjective nature of a psychiatric examination, the presence of a third party in a legal
and non-medical capacity would severely limit the efficacy of the examination.”
Bennett v. State, 766 S.W.2d 227, 231 (Tex. Crim. App. 1989) (quoting Stultz,
30
500 S.W.2d at 855); see State, 2019 WL 3001520 at *3 n.2. For these reasons, a
defendant does not have a Sixth Amendment right to have counsel present during a
psychiatric examination. See Bennett, 766 S.W.2d at 231; see also Cohen, 530 F.2d at 48;
State, 2019 WL 3001520, at *3 n.2.
Lott additionally contends that the Sixth and Fourteenth Amendments required
the trial court to give him formal notice of when the examination would occur and a
description of the topics that would be covered. See Byers, 740 F.2d at 1119
(distinguishing claim that barring defense counsel from attending a defendant’s court-
ordered psychiatric examination violates the Sixth Amendment from a claim that a
trial court’s failure to provide defendant’s counsel with notice of such an examination
violates the Sixth Amendment). Lott apparently relies on Smith, in which the Supreme
Court concluded that the trial court’s failure to provide advance notice to the
defendant’s counsel that the court-ordered psychiatric examination would encompass
the issue of the defendant’s future dangerousness deprived the defendant of his Sixth
Amendment right to the assistance of counsel. 451 U.S. at 471. But Smith involved a
situation where the defendant did not assert a mental-status defense such as insanity
and did not offer psychiatric evidence at trial; Lott raised insanity as a defense and
ultimately offered psychiatric evidence from his own expert at trial. Id. at 465–66.
But even assuming that distinction is not critical, Smith is distinguishable on another
basis.
31
The constitutional problem in Smith was that the defendant’s attorneys were
not notified that the examination would encompass the issue of future dangerousness.
Id. at 465, 470–71. Here, by contrast, the record shows that Lott’s attorneys knew the
purpose, scope, and possible timing of the examination before it took place: (1) Lott
gave notice of his intent to raise the defense of insanity at trial; (2) the State filed a
motion seeking an independent psychiatric examination of Lott expressly for the
purpose of rebutting Lott’s insanity defense; (3) Lott’s attorneys filed a written
response and objection to the State’s motion indicating their understanding that the
State sought the examination to rebut Lott’s insanity defense; (4) the trial court held a
hearing, which Lott’s attorneys attended and at which the State both reiterated that its
request was for an independent examination of Lott for purposes of rebutting his
insanity defense and requested that the examination take place five days after the
hearing; and (5) the trial court signed an order granting the State’s motion.
Accordingly, Lott’s counsel’s awareness before the court-ordered examination
occurred that the examination would encompass Lott’s sanity at the time of the
shooting for purposes of rebutting his insanity defense distinguishes this case from
Smith.
32
We are therefore unpersuaded by Lott’s contention that his attorneys lacked
notice of the purpose and scope of his examination with Price before it occurred;
thus, there was no assistance-of-counsel or due-process violation.11
D. CHAPTER 46C
Finally, Lott complains that the court-ordered examination violated
Chapter 46C of the Code of Criminal Procedure. As he did in the trial court, Lott
focuses specifically on Article 46C.101, which provides in relevant part that when a
defendant files a notice of intention to raise the insanity defense, “the court may, on
its own motion or motion by the defendant, the defendant’s counsel, or the attorney
representing the state, appoint one or more disinterested experts to . . . examine the
defendant with regard to the insanity defense.” Tex. Code Crim. Proc. Ann.
art. 46C.101(a)(1). Lott contends that this provision constrains a trial court’s
discretion by permitting appointment only of a disinterested expert. Because Price
was the State’s retained expert, Lott asserts that Price did not qualify as a disinterested
expert; thus, Lott contends that the trial court abused its discretion by granting the
State’s motion.
11
Further, Lott appears to contend that the trial court should have ordered that
the examination with Price be recorded by video. But the record does not show that
he ever made that request in the trial court, and thus he failed to preserve any error in
the trial court’s failure to order that the examination be videotaped. See Tex. R. App.
P. 33.1(a).
33
As the trial court found in a letter ruling on the State’s motion, Article
46C.101(a)(1)’s language is permissive. Neither party has cited us to any directly
applicable authority construing Article 46C.101(a)(1), but we find guidance in
decisions from the court of criminal appeals construing Article 46C.101(a)’s
predecessor—former Code of Criminal Procedure Article 46.03, Section 3(a). See Act
of May 18, 1977, 65th Leg., R.S., ch. 596, § 2, art. 46.03, sec. 3(a), 1977 Tex. Gen.
Laws 1467, 1467–68 (repealed 2005); Pham v. State, 463 S.W.3d 660, 670 (Tex. App.—
Amarillo 2015, pet. ref’d). Like current Article 46C.101(a)(1), former Article 46.03
provided that if a defendant gives notice of intent to raise insanity as a defense, the
trial court “may” appoint “disinterested experts” to examine the defendant on that
issue. Act of May 18, 1977, 65th Leg., R.S., ch. 596, § 2, art. 46.03, sec. 3(a),
1977 Tex. Gen. Laws 1467, 1467–68 (repealed 2005).
In Brandon v. State, the appellant contended, as Lott does here, that this statute
provided the exclusive procedure by which a defendant could be examined as to his
sanity and that, consequently, his examination by State-selected experts was unlawful.
599 S.W.2d 567, 576 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902
(1981). The court recognized that it had “held that [former Articles 46.02 and 46.03]
did not provide the exclusive procedure for examining the defendant, and
consequently the State’s rebuttal testimony was proper even though [the State’s
expert] was not court-appointed and had examined the defendant solely at the State’s
34
request.” Id. The court reasoned that the same was true of former Article 46.03’s
provisions, holding that
appellant was entitled to call his own expert witnesses to testify that he
was insane at the time of the commission of the offense and the State
was entitled to rebut that testimony with its own expert witnesses.
These witnesses need not be court-appointed and are not subject to the
above-mentioned specific provisions of [Articles 46.02 and 46.03] that
court-appointed psychiatrists are subject to.
Id.; see also Patterson v. State, 509 S.W.2d 857, 861–62 (Tex. Crim. App. 1974). In light
of the similar phrasing in Article 46C.101(a)(1), Lott has failed to persuade this court
that the court of criminal appeals’ construction of its predecessor statute would not
apply here. See Pham, 463 S.W.3d at 670. See generally Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 322–26 (2012) (noting, under
prior-construction canon, “when a statute uses the very same terminology as an earlier
statute—especially in the very same field . . .—it is reasonable to believe that the
terminology bears a consistent meaning”). Accordingly, we conclude that the trial
court did not violate Article 46C.101(a)(1) by ordering Lott to submit to an
examination by the State’s retained expert.
IV. VICTIM-IMPACT AND VICTIM-CHARACTER EVIDENCE
In Lott’s fourth and final issue, he complains that the trial court abused its
discretion by admitting the testimony of Vern Landavazo, Lauren’s father, and
Shemeka Smith, Makayla’s mother, during the punishment phase. He argues that
their testimony amounted to highly prejudicial victim-impact and victim-character
35
evidence that had limited probative value, rendering it inadmissible under Rule 403.
Tex. R. Evid. 403.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s ruling admitting victim-impact or victim-character
evidence during the punishment phase of trial for an abuse of discretion. Mays v.
State, 318 S.W.3d 368, 392 (Tex. Crim. App. 2010); see Douglas v. State, Nos. 02-15-
00445-CR, 02-15-00446-CR, 2017 WL 444381, at *7 (Tex. App.—Fort Worth Feb. 2,
2017, pet. ref’d) (mem. op., not designated for publication). Under that standard, we
will uphold the trial court’s ruling as long as it lies within the zone of reasonable
disagreement and is correct under any theory of law applicable to the case. See Kirk v.
State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref’d).
Code of Criminal Procedure Article 37.07 provides that any evidence that the
trial court “deems relevant to sentencing” is admissible during the punishment phase
of a trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Sims v. State,
273 S.W.3d 291, 295 (Tex. Crim. App. 2008). Lott does not argue that the victim
evidence was not relevant. Indeed, because such evidence had some bearing on Lott’s
personal responsibility and moral culpability, it was relevant punishment evidence. See
Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).
But even if deemed relevant, such evidence is nonetheless subject to Rule 403’s
weight inquiry—whether the probative value is substantially outweighed by a danger
of unfair prejudice. Tex. R. Evid. 403; see Salazar, 90 S.W.3d at 335; Gilbert v. State,
36
575 S.W.3d 848, 871 (Tex. App.—Texarkana 2019, pet. ref’d). Thus, when
considering the admissibility of victim evidence, a trial court must carefully consider
four factors: “(1) how probative is the evidence; (2) the potential of the evidence to
impress the jury in some irrational, but nevertheless indelible way; (3) the time the
proponent needs to develop the evidence; and (4) the proponent’s need for the
evidence.” Salazar, 90 S.W.3d at 336; accord Gilbert, 575 S.W.3d at 871.
B. PRESERVATION
Before the punishment hearing and outside the jury’s presence, Lott’s counsel
stated that he understood the State intended to call a family member of each victim to
testify. Lott’s counsel objected, “We object to the testimony under 403 and under . . .
the Salazar factors and also under the Eighth Amendment.”12 The State responded by
confirming that it intended to call Landavazo and Smith to provide victim-impact
evidence. Lott’s counsel replied, “Your Honor, should the Court overrule our
objection, we would request a running objection.” The trial court overruled the
objection but added that Lott could “have a running objection during the testimony
of the family witnesses.”
To preserve a complaint for our review, the complaining party must make a
timely objection in the trial court. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid.
103(a)(1)(A). An objection is considered timely if it is made when the ground for the
12
Lott does not raise an Eighth Amendment argument on appeal.
37
objection becomes apparent. See Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App.
2008). If the ground for the objection has not yet arisen, the objection is premature,
and the trial court properly overrules the objection on that basis. See Canales v. State,
98 S.W.3d 690, 699 (Tex. Crim. App. 2003); Felder v. State, 848 S.W.2d 85, 96 (Tex.
Crim. App. 1992); 43A George E. Dix & John M. Schmolesky, Texas Practice: Criminal
Practice & Procedure § 53:61 (3d ed. 2019); cf. Watts v. Adviento, No. 02-17-00424-CV,
2019 WL 1388534, at *7 (Tex. App.—Fort Worth Mar. 28, 2019, no pet.) (per curiam)
(mem. op.) (holding in appeal from protective order that “prejudicial” objection
lodged before witness began testimony was premature and, thus, did not preserve
error). “The lesson is that an appellant must have sought relief from the trial judge at
the time when the full picture relied upon on appeal was before the trial judge. Only
then did the request give the trial judge an adequate opportunity to understand and
avoid the error.” Dix & Schmolesky, supra, at § 53:61.
Here, Lott objected before any evidence was proffered at the punishment
phase. Although the trial court was aware that the State intended to call two family
members to give victim-impact testimony, there was no context by which the trial
court could conduct a meaningful balancing test under Rule 403. And the running
objection did not solve this issue because it too was untimely and was granted in the
absence of context. See Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App.
1989) (holding that “as long as the running objection constituted a timely objection,
stating the specific grounds for the ruling, [and] the movement [the appellant] desired
38
the court to make . . . then the error should be deemed preserved by an appellate
court” (emphasis added)); cf. Cole v. State, 987 S.W.2d 893, 895 (Tex. App.—Fort
Worth 1998, pet. ref’d) (holding if appellant does not object to evidence, later request
for a running objection to same evidence will not preserve error); Elliff v. State,
No. 05-07-01434-CR, 2008 WL 5158930, at *2 (Tex. App.—Dallas Dec. 10, 2008, no
pet.) (not designated for publication) (“Appellant did not object to [the expert’s]
testimony when it was offered at trial. Before the testimony, appellant was allowed a
running objection based on his earlier complaint about the ‘admissibility of [the
expert’s] testimony.’ This general running objection, however, did not preserve his
current complaint for appeal.”). See generally White v. State, 784 S.W.2d 453, 460 (Tex.
App.—Tyler 1989, pet. ref’d) (op. on reh’g) (recognizing determination of whether
running objection preserves error is dependent on particular facts and circumstances
of each case).
We conclude that Lott’s Rule 403 objection and running objection were
premature and did not preserve any error for our review. See Salazar, 90 S.W.3d at
337 (“It is . . . difficult for a trial judge to weigh the probative value against the
potentially unfair prejudice of a particular item of evidence without first reviewing
it.”); cf. Ford v. State, 919 S.W.2d 107, 112–13 (Tex. Crim. App. 1996) (holding
defendant preserved Rule 403 objection to second witness’s victim-impact testimony
when earlier request for running Rule-403 objection made and granted during context
of first witness’s similar victim-impact testimony); Scranton v. State, No. 2-09-242-CR,
39
2010 WL 2721483, at *5 (Tex. App.—Fort Worth July 8, 2010, pet. ref’d) (per curiam)
(mem. op., not designated for publication) (same). But even if Lott had preserved this
complaint for our review, we would conclude for the following reasons that the trial
court did not abuse its discretion by admitting this evidence.
C. NO ABUSE OF DISCRETION
1. Smith’s Testimony
Lott challenges Smith’s testimony as unfairly prejudicial victim-impact and
victim-character evidence. Smith testified that Makayla called her and was screaming
and crying that someone had shot her. Smith drove to the scene while still talking to
her daughter on the phone. When she arrived, however, she lost contact with
Makayla. Smith then looked in the alley and saw the bottom of Lauren’s shoes. She
testified that she believed the shoes were Makayla’s: “[A]t first I thought it was
[Makayla] and I just lost it. And I didn’t know what to do. I was told later on that I
had fell to the ground and the officers had to help me up.” An officer walked Smith
to the front of an ambulance and on the way, she looked down the alley, yelled for
Makayla, and saw an arm reach up. Smith said that she assumed it was Makayla.
Smith also testified to her thoughts about and reaction to the shooting: “[T]hat whole
day was just like a scene out of a movie. And I was like how is this happening. How
is this happening to two good families, good people, and something this horrible, we
were actually living it.” And she stated that Makayla thinks of others first “all the
time.” Finally, Smith testified that while she was in the hospital’s waiting room, she
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heard Lauren’s mother scream. Smith stated that she remembered the scream because
it was obvious that Lauren had died and that Smith could do nothing to help.
The first Salazar factor applicable to Lott’s Rule 403 argument is to assay the
probative value of the testimony. Victim-impact evidence is designed to remind the
jury that a defendant’s crime has foreseeable consequences to the community and the
victim’s family members and friends. See Salazar, 90 S.W.3d at 335. We disagree with
Lott’s contention that Smith’s reference to the fact that the crime had happened “to
two good families” and to “good people” drew an improper comparison between
Makayla and other members of society based on Makayla’s worth or morality. See
generally Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009) (“[E]vidence that
draws comparisons between the victim and other members of society based on the
victim’s worth or morality should usually be excluded under Rule 403.”). Rather, the
statements themselves, as well as the context in which they were given, demonstrated
the shooting’s direct impact on Makayla’s family and the immediate effect of the
random shooting on them. Thus, Smith’s testimony was probative of the issue of the
shooting’s foreseeable consequences. See Gilbert, 575 S.W.3d at 872.
As to the second Salazar factor, Lott focuses on Smith’s testimony about
Lauren’s mother’s scream at the hospital and argues that this testimony had significant
potential to impress the jury in an irrational and indelible way. But Smith simply
described that event, and we find nothing about that description or her other
testimony that was likely to impress the jury in an irrational and indelible way. See id.
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As to the third Salazar factor, Lott argues the State took an inordinate amount
of time to elicit Smith’s victim-impact testimony because it spanned fourteen of the
approximately forty-six total pages of punishment testimony. See Salazar, 90 S.W.3d at
336 (quoting Mosley v. State, 983 S.W.2d 249, 262–63 (Tex. Crim. App. 1998) for
proposition that victim-impact and victim-character evidence can become unfairly
prejudicial through sheer volume). However, Smith was the only witness who
testified as to the shooting’s impact on Makayla’s family, and we conclude on this
record that this testimony was not unfairly prejudicial based on its length. See, e.g.,
Mole v. State, No. 2-08-021-CR, 2009 WL 1099433, at *14 (Tex. App.—Fort Worth
Apr. 23, 2009, pet. ref’d) (mem. op., not designated for publication) (concluding
victim-impact and victim-character testimony of three witnesses spanning a total of
twenty pages not prejudicial by volume).
Finally, Lott contends the fourth factor weighs against admissibility of Smith’s
testimony because it was cumulative of evidence admitted during the guilt-innocence
phase of trial and because it “delved too far into moral comparisons and emotional
pleas.” But Smith’s victim-impact testimony was neither cumulative of any other
admitted evidence nor unduly emotional.
Applying the Salazar factors, we conclude the trial court did not abuse its
decision by admitting Smith’s victim-impact and victim-character testimony over
Lott’s Rule 403 objection. See id.
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2. Landavazo’s Testimony
Lott challenges two aspects of Landavazo’s testimony: (1) his statements
regarding Lauren’s childhood (victim-character evidence) and (2) his statements about
his arrival at the scene and riding in the ambulance with Lauren (victim-impact
evidence).
Landavazo testified about his joy at Lauren’s birth. He stated that he had
always thought he would have a girl and that when she was born, he realized how
special and beautiful she was. As Lauren grew up, Landavazo noticed that she
“seemed so much wiser than her years” and that she had an outsized capacity for
compassion, kindness, and tenderness. He related a specific occasion when three-
year-old Lauren exhibited empathy for a sick relative. He said that Lauren was kind to
others and would befriend new students at her school. Landavazo also testified that
Lauren loved to sing along to children’s songs.
Landavazo testified that while he was on his way to the crime scene, he called
Lauren’s phone but that someone else answered it. He immediately heard Lauren’s
mother screaming in the background and he “instantly went cold and [he] just knew.”
Landavazo also testified that he was allowed to ride in the ambulance with Lauren.
He stated that during the ambulance ride, he saw blood in Lauren’s hair and thought,
“[O]h my God, that’s not -- that’s not good, blood in her hair.”
Lott concedes that Landavazo’s testimony about the shooting scene and
ambulance ride was probative of the impact the shooting had on Lauren’s family. But
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he argues Landavazo’s testimony about Lauren’s childhood was not probative victim-
character evidence. Victim-character evidence is designed to give the jury “a quick
glimpse of the life that the petitioner chose to extinguish, to remind the jury that the
person whose life was taken was a unique human being.” Salazar, 90 S.W.3d at 335
(quoting Payne v. Tennessee, 501 U.S. 808, 830–31 (1991) (O’Connor, J., concurring)).
In Salazar, the court of criminal appeals held that “a seventeen-minute video
montage of photographs depicting [an adult] murder victim’s life, set to music from
the movie Titanic,” depicting the victim as an infant, toddler, or small child, placed
“undue emphasis on the adult victim’s halcyon childhood” and had little probative
value as victim-character evidence. Id. at 332, 337. The court did not hold that
evidence of a victim’s childhood could never have probative value. To the contrary,
the court noted that the victim’s parents both testified about their “love for [the
victim], his individuality, his childhood and youth, his love of life, and their personal loss
and grief,” and concluded that this testimony was “fully admissible.” Id. at 337
(emphasis added). Landavazo’s limited testimony about Lauren’s childhood was
probative because it gave the jury insight into her uniqueness. See id. at 335, 337.
Nor does Lott persuade us that the challenged portions of Landavazo’s
testimony presented a great risk of impressing the jury in an irrational and indelible
way—the second Salazar factor. Lott contends Landavazo’s testimony concerning
Lauren’s childhood, like the video montage in Salazar, carried with it the implicit
suggestion that he had murdered an angelic infant. See id. at 337. But Landavazo’s
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limited testimony concerning Lauren’s childhood was not like the Salazar video, but
was the admissible testimony of a victim’s parent. See id. at 337–39. And contrary to
Lott’s assertion, Landavazo’s testimony concerning his arrival at the crime scene and
the ambulance ride simply described the shooting’s impact on him. We find nothing
about his description that was likely to impress the jury in an irrational and indelible
way. See Gilbert, 575 S.W.3d at 872.
As to the third Salazar factor, Lott contends the State took an inordinate
amount of time to present Landavazo’s victim-impact and victim-character testimony.
Lott is correct that Landavazo’s testimony spanned approximately thirty-two of the
forty-six total pages of punishment testimony. However, Landavazo testified to more
than victim-impact and victim-character evidence; he also testified to the events of the
day that he personally observed. Landavazo testified about arriving at the scene of
the shooting to see his daughter lying on the ground with his wife screaming, and he
described how he was allowed to accompany her on the ambulance ride to the
hospital and the efforts the medical personnel took to sustain his daughter’s life.
Landavazo’s personal account of these events does not amount to victim-impact or
victim-character evidence, but constituted circumstances of the offense. See Tex.
Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Miller-El v. State, 782 S.W.2d 892, 896
(Tex. Crim. App. 1990); Espinosa v. State, 194 S.W.3d 703, 711 (Tex. App.—Houston
[14th Dist.] 2006, no pet.); DeLarue v. State, 102 S.W.3d 388, 404 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d). Landavazo’s remaining testimony, addressing
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the effect of Lauren’s death on her family and Lauren’s unique characteristics, was not
so lengthy based on volume alone that we can conclude it was inadmissible on that
basis. See Salazar, 90 S.W.3d at 336, 338; see, e.g., Mole, 2009 WL 1099433, at *14
(concluding victim evidence from several witnesses spanning a total of twenty pages
not prejudicial by volume); Patterson v. State, No. 05-05-00695-CR, 2006 WL 1985960,
at *5 (Tex. App.—Dallas July 18, 2006, pet. ref’d) (mem. op., not designated for
publication) (concluding victim evidence spanning six pages not prejudicial by
volume); Williams v. State, 176 S.W.3d 476, 483 (Tex. App.—Houston [1st Dist.] 2004,
no pet.) (concluding victim evidence spanning seven pages not prejudicial by volume).
Finally, Lott contends that the fourth factor weighs against the admissibility of
Landavazo’s testimony for the same reason it weighed against the admissibility of
Smith’s—it was cumulative of other evidence. But the evidence admitted at the guilt-
innocence phase of trial did not describe the impact Lauren’s death had on her family
or Lauren’s character to the jury, which are the purposes of victim-impact and victim-
character evidence. See Salazar, 90 S.W.3d at 335; Gilbert, 575 S.W.3d at 871. Thus,
Lott has not shown Landavazo’s testimony was cumulative and, thus, inadmissible.
Applying the Salazar factors, we conclude the trial court’s decision to admit
Landavazo’s testimony was not an abuse of discretion. See Kirk, 421 S.W.3d at 782.
We overrule issue four.
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V. CONCLUSION
Having overruled all of Lott’s issues, we affirm the trial court’s judgments. See
Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 7, 2019
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