Hartwell, Ross Allen ( 2015 )

PD-0955-15
PD-0955-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/30/2015 12:32:27 PM
Accepted 7/30/2015 4:00:52 PM
ABEL ACOSTA
CLERK
No. _____________
To the Court of Criminal Appeals of Texas
The State of Texas,
Petitioner
v.
Ross Allen Hartwell,
Respondent
From the Court of Appeals for the
Thirteenth Judicial District of Texas at Corpus Christi
Court of Appeals No. 13-14-00087-CR
Appeal from the 390th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-904031
STATE’S PETITION FOR DISCRETIONARY REVIEW
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
July 30, 2015 P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is requested
Identity of Parties and Counsel
Trial Judges: Bob Perkins, visiting, and
Julie Kocurek
390th Judicial District Court
P.O. Box 1748
Austin, Texas 78767
Appellate Counsel for State: Angie Creasy
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Trial Counsel for State: Katie Sweeten and
Steven Brand
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Defendant: Ross Allen Hartwell
Appellate Counsel for Paul M. Evans
Defendant: 811 Nueces St.
Austin, Texas 78701
Trial Counsel for Alexandra Gauthier and
Defendant: Kathryn Rooth Salzer
505 W. 12th St., Suite 204
Austin, Texas 78701
i
Table of Contents
Identity of Parties and Counsel ............................................................ i
Index of Authorities............................................................................ iii
Statement Regarding Oral Argument................................................. iv
Statement of the Case ......................................................................... iv
Statement of Procedural History ........................................................ iv
Ground for Review................................................................................v
Must the evidence at trial affirmatively show that prior convictions,
used to enhance punishment under Tex. Penal Code § 12.42(d), are
not state jail felonies punishable under Tex. Penal Code § 12.35(a)?v
Argument............................................................................................. 2
Prayer .................................................................................................. 4
Certificate of Compliance and Service................................................. 5
Appendix: Opinion of the Court of Appeals
ii
Index of Authorities
Cases
Hartwell v. State, No. 13-14-00087-CR, 2015 Tex. App. LEXIS 6758
(Tex. App. – Corpus Christi July 2, 2015) ....................................... iv
Statutes
Tex. Penal Code § 12.35 ....................................................................... 3
Tex. Penal Code § 12.42 ....................................................................... 2
iii
Statement Regarding Oral Argument
The State respectfully requests oral argument because this issue
requires examination of multiple statutes, the evidence, and the
court’s charge.
Statement of the Case
A jury convicted Hartwell of aggravated robbery with a deadly
weapon finding. The jury found two enhancement allegations to be
true and assessed punishment at 70 years.
Statement of Procedural History
On July 2, 2015, the Thirteenth Court of Appeals issued a
published opinion affirming the conviction but reversing and
remanding for a new trial on punishment. See Hartwell v. State, No.
13-14-00087-CR, 2015 Tex. App. LEXIS 6758 (Tex. App. – Corpus
Christi July 2, 2015). The defendant filed a pro se motion for
rehearing on July 20, 2015. The court of appeals has not ruled on the
motion.
iv
Ground for Review
Must the evidence at trial affirmatively show that prior
convictions, used to enhance punishment under Tex. Penal Code §
12.42(d), are not state jail felonies punishable under Tex. Penal Code
§ 12.35(a)?
v
No. _____________
To the Court of Criminal Appeals of Texas
The State of Texas,
Petitioner
v.
Ross Allen Hartwell,
Respondent
From the Court of Appeals for the
Thirteenth Judicial District of Texas at Corpus Christi
Court of Appeals No. 13-14-00087-CR
Appeal from the 390th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-904031
STATE’S PETITION FOR DISCRETIONARY REVIEW
To the Honorable Court of Criminal Appeals:
Now comes the State of Texas and files this petition, and in
support thereof, respectfully shows the following:
1
Argument
The State enhanced the range of punishment in this case with
prior felony convictions, pursuant to Section 12.42 of the Penal Code:
If it is shown on the trial of a felony offense other than a
state jail felony punishable under Section 12.35(a) that the
defendant has previously been finally convicted of two
felony offenses, and the second previous felony conviction
is for an offense that occurred subsequent to the first
previous conviction having become final, on conviction
the defendant shall be punished by imprisonment in the
Texas Department of Criminal Justice for life, or for any
term of not more than 99 years or less than 25 years. A
previous conviction for a state jail felony
punishable under Section 12.35(a) may not be
used for enhancement purposes under this
subsection.
See Tex. Penal Code § 12.42(d), emphasis added.
One of the priors used to enhance punishment was a state jail
felony conviction for unauthorized use of a motor vehicle. The record
does not show whether this prior conviction was a state jail felony
punishable under Section 12.35(a) or a state jail felony punishable
under Section 12.35(c). See SX 301 at 14RR 192.
The defendant made no objection or complaint at trial about the
use of this prior conviction to enhance punishment. But on appeal,
the defendant argued that the evidence was insufficient to support
2
enhancement because the evidence did not affirmatively show that
this prior conviction was not a state jail felony punishable under
Section 12.35(a).
The State contended that the evidence does not have to
affirmatively show that the prior conviction is not a state jail felony
punishable under Section 12.35(a). The State argued that this is not a
question of fact for the jury but rather a question of law for the judge
to decide when submitting the punishment charge to the jury.
Because it is a jury charge issue, the burden is on the defendant to
show that the judge erred. Since the record does not clearly show
error, the punishment should be upheld on appeal.
The court of appeals agreed with the defendant, however, and held
that the evidence of enhancement was legally insufficient. The court
reversed and remanded for a new punishment trial. See Appendix pp
22-25.
The State asks this court to grant discretionary review because
this is an important question of law that has not been settled by the
Court of Criminal Appeals.
3
Prayer
The State asks this Court to grant discretionary review of this
petition.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
4
Certificate of Compliance and Service
I hereby certify that this petition contains 442 words. I further
certify that, on the 30th day of July, 2015, a copy of this petition was
served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to:
Paul M. Evans
Attorney for the Defendant
811 Nueces Street, Austin, Texas 78701
Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Angie Creasy
5
APPENDIX
Opinion of the Court of Appeals
NUMBER 13-14-00087-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROSS ALLEN HARTWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 390th District Court
of Travis County, Texas.
OPINION
Before Justices Rodriguez, Garza, and Longoria
Opinion by Justice Rodriguez
Appellant Ross Allen Hartwell appeals from a judgment rendered by the 390th
District Court of Travis County, Texas. 1 A jury found Hartwell guilty of aggravated
robbery with an affirmative deadly weapon finding. See TEX. PENAL CODE ANN. § 29.03
1This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2015 R.S.).
(West, Westlaw through 2015 R.S.). The jury found two enhancement paragraphs to be
true and assessed punishment of seventy years’ imprisonment. Hartwell raises ten
issues on appeal. We affirm in part and reverse and remand in part.
I. BACKGROUND
Christina Morman, the complainant, testified at trial that on March 26, 2012, she
was working the night shift at a Popeye’s restaurant in Austin, Texas. She finished her
shift at 11 p.m. and was in the process of leaving the Popeye’s premises when she
realized that she forgot her cigarette lighter. She parked her van near the front entrance
of the restaurant, left her engine running, and went back inside to get her lighter. Upon
returning to her vehicle she saw a person in the front passenger seat of her van. Morman
ran to her van, put her hand on the door, and said “[h]ey, this is my car.” The driver then
reversed out of the parking space in such a way that the front end of the vehicle struck
Morman and knocked her to the ground. The driver paused for a few seconds before
running Morman over. Morman was dragged underneath the vehicle for approximately
246 feet before being dislodged. Co-worker Alexis Blount witnessed the event and
corroborated Morman’s testimony at trial.
Co-defendant Joshua Voigt testified that he was with Hartwell when they stole
Morman’s vehicle: Voight was in the passenger seat, and Hartwell was in the driver’s
seat. Voight saw Morman run to the van and testified that she tried to open the rear
passenger sliding door. He heard her “cuss”, “yell at [them] to stop”, and say, “[h]ey, this
is my car.” When Hartwell reversed the vehicle and knocked Morman to the ground,
Voigt saw Morman lying on the ground in front of the vehicle. When Hartwell put the
vehicle in drive and ran over Morman, Voigt testified that he heard a thump and felt the
2
wheels go over Morman’s body. He also testified that he could hear Morman screaming.
Detective Steve Boline with the Austin Police Department interviewed Hartwell that
same day. The trial court admitted a redacted video of the custodial interview into
evidence. The recording showed that Hartwell initially denied any involvement but later
admitted to stealing Morman’s vehicle. Hartwell admitted that he was the driver and that
he put the van in reverse and backed out of the parking space. Hartwell claimed he
decided to abandon the robbery upon seeing people running towards him after he
reversed out of the parking space. He claimed Voigt reached over and grabbed the door,
preventing him from exiting the vehicle. Hartwell also claimed that he was pressing on
the brake, but Voigt reached down and depressed the gas pedal with his hand. Hartwell
admitted during the interview that he saw someone in front of the vehicle but denied
knowledge that he ran over anyone.
The jury found Hartwell guilty of aggravated robbery with an affirmative deadly
weapon finding. See id. Hartwell elected to have the jury decide punishment and
entered a plea of “not true” to the enhancement allegations put forth by the State. The
jury found two enhancement paragraphs to be true and assessed a term of seventy years’
imprisonment, and the trial court sentenced Hartwell accordingly. This appeal followed.
II. FIFTH AMENDMENT RIGHT TO COUNSEL
By his first issue, Hartwell contends that he invoked his right to counsel during his
custodial interview and that any statements made after he invoked his right to counsel
were inadmissible.
A. Standard of Review & Applicable Law
In reviewing claims concerning the admission of statements made as the result of
3
custodial interrogation, we conduct the bifurcated review articulated in Guzman v. State.
See Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford almost total deference to the trial
court's rulings on questions of fact and on questions involving the application of law to
fact that turn upon a witness’ credibility and demeanor.2 Id. at 79. We review de novo
the trial court's rulings on questions involving the application of law to facts that do not
turn upon a witness’ credibility and demeanor. Id. However, as the Pecina Court
explained, in deciding whether an accused has “actually invoked his right to counsel,” the
Supreme Court has dictated that we use an objective standard “to avoid difficulties of
proof and to provide guidance to officers conducting interrogations.” Id. (citing Davis v.
United States, 512 U.S. 452, 458–59 (1994)).
When a defendant asks for a lawyer, questioning must cease until counsel has
been provided or the defendant initiates further communication with the police. Edwards
v. Arizona, 451 U.S. 477, 484–85 (1981). Once a suspect has invoked his right to
counsel, no subsequent exchange initiated by the police can serve to undermine the
clarity of the invocation. State v. Gobert, 275 S.W.3d 888, 894–95 (Tex. Crim. App.
2009).
However, before a duty to terminate an interrogation arises, a defendant’s request
for counsel must be clear—the police are not required to attempt to clarify ambiguous or
equivocal remarks. Davis v. United States, 512 U.S. 452, 461–62 (1994); Pecina, 361
S.W.3d at 79. The accused must unambiguously request counsel during a custodial
2 Because the trial court did not enter findings of fact, we will imply necessary findings in support
of the ruling if they are supported by the evidence. See, e.g., State v. Kelly, 204 S.W.3d 808, 819 (Tex.
Crim. App. 2006).
4
interrogation. Pecina, 361 S.W.3d at 79. To unambiguously request counsel, the
accused “must articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the statement to be a
request for an attorney.” Davis, 512 U.S. at 459. “A statement either is such an
assertion of the right to counsel or it is not.” Id. We view the totality of circumstances
from the viewpoint of the objectively reasonable police officer conducting a custodial
interrogation. Id. at 458–59; Pecina, 361 S.W.3d at 79.
B. Discussion
Detective Boline interviewed Hartwell after he was arrested for the instant offense.
Hartwell waived his Miranda rights3 and agreed to speak with Detective Boline. Though
Hartwell initially denied any knowledge of the incident, the following exchange occurred
during the interrogation:
Hartwell: Okay. What—what would you do—I know it’s hard for you to
put yourself in this situation but—
Det. Boline: Try me.
Hartwell: Should I—should I call that attorney friend of mine to see what
he thinks?
Det. Boline: That’s a decision you have to make. I mean, I can’t—I can’t
answer that for you.
Hartwell: I mean, even in most (inaudible) anybody’s willing to—I mean,
I’d be willing to let anybody in also with—with— with me and
my lawyer or—or me—he’s not my lawyer, he’s just a friend
of my attorney but—
Det. Boline: Let me ask you this, was he there?
Hartwell: My attorney?
3 See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
5
Det. Boline: Yeah, was he there that night?
Hartwell: No.
Det. Boline: So what is he going to be able—I mean, this is your call. I’m
not gonna try and talk you out of one way or another; if you
want to call him, that’s fine, but you and I will not be able to
talk again and—and I’m—and this is—this is—
Hartwell: See that’s what I mean. I mean you’re nice and—and—
Det. Boline: No, no, no, no.
Hartwell: —you’re great but—
Det. Boline: They’re not gonna let me talk to you. Would I want to come
down—I can come down and visit with you but I’m not gonna
be able to help you try and help yourself. Does that make
sense? This is weighing—this is weighing heavy on you.
It’s not gonna go away. The only thing you can do at this
point is to try and help yourself out, and by—by that, I mean
explaining your side of it.
Hartwell continued to talk to Detective Boline and went on to admit his involvement in
stealing Morman’s vehicle. He also wrote two statements regarding the events of the
night in question—those statements, along with a redacted version of his oral interview—
were admitted into evidence at trial.
We must initially determine whether Hartwell’s statements to Detective Boline
constituted an unambiguous invocation of his right to counsel. See Pecina, 361 S.W.3d
at 79. The Supreme Court in Davis found Davis’s statement that “maybe [he] should talk
to a lawyer” was not a request for counsel. 512 U.S. at 461–62. The Court stated it
was “unwilling to create a third layer of prophylaxis to prevent police questioning when
the suspect might want a lawyer.” Id. at 462. The court of criminal appeals has also
determined that a suspect’s statement that he “should have an attorney” was not a clear
request for counsel. See Davis v. State, 313 S.W.3d 317, 341 (Tex. Crim. App. 2010).
6
In deciding that the above statement was not an unequivocal request for counsel the court
of criminal appeals determined “appellant’s statement was not in the form of a request
nor did appellant expressly say that he wanted a lawyer.” Id.
Hartwell agrees that his question to Detective Boline, “should I maybe call my
attorney friend and see what he thinks,” was not an unequivocal and unambiguous
request for counsel. However, Hartwell contends that his question regarding counsel,
considered in context with the remainder of the conversation, was an affirmative
invocation of his right to counsel. Yet the conversation that followed Hartwell’s question
regarding an attorney created even more ambiguity because Hartwell then stated that it
was not even his attorney, just “a friend of [his] attorney.”
The trial court correctly noted that Hartwell has no constitutional right to talk to a
friend of his attorney and ruled that either there was no invocation of counsel or, in the
alternative, that it was equivocal. We agree with the trial court’s ruling. Hartwell’s
comment was similar to the comment in Davis v. State in that Hartwell used the word
“should.” See id. Hartwell recognized that having an attorney was an option, but did
not actually make a request for an attorney to be present. See id. Hartwell did not
unequivocally request an attorney such that an objectively reasonable police officer would
understand that he had invoked his fifth-amendment right to counsel. See Pecina, 361
S.W.3d at 79. The trial court did not err in admitting Hartwell’s oral and written
statements into evidence at trial.
We overrule Hartwell’s first issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By Hartwell’s second issue, he contends that he was not afforded effective
7
assistance of counsel because of an alleged error during jury selection. Specifically, he
contends that his trial counsel failed to challenge for cause or request a peremptory strike
to remove a venireman who had affirmatively stated he could not remain objective if
shown graphic evidence.
A. Standard of Review & Applicable Law
Both the Federal and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM.
PROC. ANN. art. 1.051 (West, Westlaw through 2015 R.S.). This right necessarily
includes the right to reasonably effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To establish ineffective assistance of counsel,
an appellant must show by a preponderance of the evidence that (1) trial counsel's
performance fell below an objective standard of reasonableness; and (2) the deficient
performance prejudiced the defense.4 Id.; Wert v. State, 383 S.W.3d 747, 752 (Tex.
Crim. App. 2012). Failure to satisfy either prong defeats an ineffective assistance claim.
Strickland, 466 U.S. at 697. In applying the Strickland test we consider the totality of the
representation and the particular circumstances of the case to determine whether counsel
was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To satisfy Strickland's first prong, the appellant must identify acts or omissions of
counsel that allegedly were not the result of reasonable judgment. Strickland, 466 U.S.
at 690. A defendant must overcome the strong presumption that trial counsel's actions
fell within the wide range of reasonable and professional assistance. Garza v. State, 213
4 Texas adopted the Strickland test in Hernandez v. State. See 726 S.W.2d 53 (Tex. Crim. App.
1986) (en banc).
8
S.W.3d 338, 347–48 (Tex. Crim. App. 2007); see also Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994) (en banc). If the reasons for counsel's conduct at trial do not
appear in the record and it is possible that the conduct could have been grounded in
legitimate trial strategy, an appellate court will defer to counsel's decisions and deny relief
on an ineffective assistance claim on direct appeal. Garza, 213 S.W.3d at 348; see also
Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (holding that “[a]n
ineffective-assistance claim must be ‘firmly founded in the record’ and ‘the record must
affirmatively demonstrate’ the meritorious nature of the claim.”). Direct appeal is usually
an inadequate vehicle for raising such a claim. Menefield, 363 S.W.3d at 592–93.
A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “Isolated instances in
the record reflecting errors of omission or commission do not render counsel's
performance ineffective, nor can ineffective assistance of counsel be established by
isolating one portion of trial counsel's performance for examination.” Wert, 383 S.W.3d
at 753. Finally, “[i]t is not sufficient that the appellant show, with the benefit of hindsight,
that his counsel's actions or omissions during trial were merely of questionable
competence.” Id. Instead, to establish that the attorney's acts or omissions were
outside the range of professionally competent assistance, appellant must show that
counsel's errors were so serious that he was essentially not functioning as counsel. Id.
(citing Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995) (en banc)). “To
warrant reversal when trial counsel has not been afforded an opportunity to explain his
reasons, the challenged conduct must be so outrageous that no competent attorney
9
would have engaged in it.” Roberts v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App.
2007).
To satisfy Strickland's second prong, the appellant must establish a reasonable
probability that, but for counsel's errors, the result would have been different. Strickland,
466 U.S. at 694. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999).
B. Discussion
Hartwell contends that trial counsel’s failure to strike Mr. Rodriguez, venireman
number two, caused him to receive ineffective assistance of counsel. In response to a
question asked regarding his ability to maintain objectivity in light of graphic photographic
evidence, Rodriguez stated that he could get “easily overwhelmed” which could “prevent
[him] from being objective . . . cloud [his] judgment and maybe distract [him.]” Rodriguez
was neither challenged for cause nor peremptorily stricken. Instead, Rodriguez was
empanelled on the jury that subsequently found Hartwell guilty. Other veniremen also
testified that graphic photographs would be problematic for them and were successfully
challenged for cause by trial counsel.
Hartwell’s appellate counsel filed a motion for new trial in the trial court. In that
motion Hartwell raised ineffective assistance of counsel as a basis for a new trial. His
motion did not, however, create a record regarding trial counsel’s reasons for not striking
Rodriguez or whether trial counsel’s failure to strike Rodriguez was a part of her trial
strategy. Hartwell’s motion for new trial did not brief the ineffective assistance of counsel
claim or provide any facts supporting his contention.
10
The reasons for trial counsel’s conduct do not appear in the record, and it is
possible that her conduct could have been grounded in legitimate trial strategy. See
Garza, 213 S.W.3d at 348; see also Menefield, 363 S.W.3d at 593. For example,
Hartwell’s trial counsel could have observed Rodriguez’s facial expressions and attitude
during voir dire and determined he was an acceptable juror. Without the benefit of a
record, we cannot know the reasons behind counsel’s actions and the record does not
affirmatively demonstrate that Hartwell’s claim is meritorious. See Menefield, 363
S.W.3d at 593; Garza, 213 S.W.3d at 347–48. Hartwell did not meet Strickland’s first
prong so we will defer to counsel's decisions and deny relief on Hartwell’s ineffective
assistance claim. 5 See Garza, 213 S.W.3d at 348; see also Menefield, 363 S.W.3d at
593.
We overrule Hartwell’s second issue.
IV. ADMISSION OF EVIDENCE
By his third, fourth, fifth, and sixth issues, Hartwell challenges the admission of
evidence before the jury. Hartwell contends by his third issue that the trial court abused
its discretion when it admitted a dash-cam video containing hearsay statements before
the jury. By his fourth issue, Hartwell contends the trial court erred in allowing “victim
impact” testimony before the jury during the guilt-innocence phase of trial. Finally, by his
fifth and sixth issues, Hartwell challenges the trial court’s admission of lay-opinion
testimony by the complainant and a witness to the accident.
A. Standard of Review
5 A proper record is best developed in a habeas corpus proceeding or in a motion for new trial
hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd).
11
We review a trial court's ruling on the admission or exclusion of evidence for an
abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011);
Sandoval v. State, 409 S.W.3d 259, 281 (Tex. App.—Austin 2013, no pet.). A trial court
abuses its discretion only if its decision “lies outside the zone of reasonable
disagreement.” Tillman, 354 S.W.3d at 435; Sandoval, 409 S.W.3d at 281.
B. Admission of Alleged Hearsay Statement
Hartwell contends that the trial court erred when it admitted the dash-cam video
recording taken at the scene of the crime. The video contained a portion of the first
responding officer’s in-car video. Hartwell moved to suppress the evidence, arguing that
the video was not relevant and in the alternative that if it was relevant, it was highly
prejudicial. The trial court determined that the video was relevant and, after applying the
balancing test pursuant to rule 403, overruled Hartwell’s objections and admitted the
evidence. See TEX. R. EVID. 403.
On appeal, Hartwell contends that the audio contained hearsay statements,
including remarks such as “I guess you got hit when someone tried to take her car away
from her,” and “someone tried to take her car and ran back over her and took her car.”
The State noted that Hartwell failed to object to the video on hearsay grounds.
Preservation of error is a systemic requirement on appeal. Blackshear v. State,
385 S.W.3d 589, 590 (Tex. Crim. App. 2012). We will not address the merits of an issue
that has not been preserved for appeal. Id. at 591. To preserve a complaint for
appellate review, a party must have presented to the trial court a timely request, objection,
or motion that states the specific grounds for the desired ruling if they are not apparent
from the context. TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex.
12
Crim. App. 2012). At trial, before the State offered the dash-cam video recording,
Hartwell’s counsel moved to suppress the video on the basis it was irrelevant and unfairly
prejudicial pursuant to Texas Rules of Evidence 401 and 403, respectively. See TEX. R.
EVID. 401, 403. The trial court overruled both objections. Hartwell did not object on the
basis of hearsay. “Grounds of error urged on appeal must comport with objections made
at trial or the error is not preserved.” Denison v. State, 651 S.W.2d 754, 762 (Tex. Crim.
App. 1983) (en banc). Consequently, Hartwell’s complaint about alleged hearsay
statements in the dash-cam recording was not preserved for appellate review. See TEX.
R. APP. P. 33.1.
We overrule Hartwell’s third issue.
C. “Victim Impact” Testimony
Hartwell contends that the State improperly elicited “victim impact” testimony in the
guilt-innocence phase of the trial when the prosecutor asked Morman whether her
children were able to recognize her at the hospital. Hartwell objected to the question on
the basis that it was “impermissible” and that it constituted “victim impact” evidence. The
trial court overruled his objection, and Morman testified that her children did not recognize
her when they first saw her at the hospital.
Victim-impact evidence is evidence concerning the effect of the crime on the victim
and the victim’s family after the crime occurs. Reynolds v. State, 371 S.W.3d 511, 525
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see Haley v. State, 173 S.W.3d 510,
517 (Tex. Crim. App. 2005) (“Victim-impact evidence is evidence concerning the effect
the victim's death will have on others, particularly the victim's family members. . . .”).
“Victim impact testimony is irrelevant at the guilt-innocence phase of a trial because it
13
does not tend to make more or less probable the existence of any fact of consequence
with respect to guilt or innocence.” Reynolds, 371 S.W.3d at 525 (quoting Love v. State,
199 S.W.3d 447 456–57 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)).
We must initially determine whether Morman’s testimony that her children did not
recognize her at the hospital was merely “victim impact” testimony. Upon Hartwell’s
objection, the trial court asked the State its purpose for asking the question. The State
responded that the question went to the extent of Morman’s injuries, not the effect those
injuries had on her children. The State further clarified that it would not be asking
questions regarding whether the children had nightmares after the incident. The trial
court overruled Hartwell’s objection, and Morman answered “no.” The State moved on
to another line of questioning.
Morman testified regarding the extent of her injuries; she did not testify regarding
the effect that the crime had had on her life or how the incident had affected her and her
family. See Reynolds, 371 S.W.3d at 525–26; Mathis v. State, 67 S.W.3d 918, 928 (Tex.
Crim. App. 2002) (allowing testimony regarding the “day to day” medical care the victim
needed after the commission of the crime). The State had the burden to prove that
Morman suffered serious bodily injury as a result of Hartwell’s actions—the State’s
question regarding the extent of her injuries was relevant to the issues in the case and
did not address either Morman’s character or effects of the crime on either her or her
family. See Love, 199 S.W.3d at 456–57; Mathis, 67 S.W.2d at 928.
We therefore conclude that Morman’s testimony does not constitute inadmissible
victim-impact evidence. Thus, the trial court did not abuse its discretion in permitting this
testimony.
14
We overrule Hartwell’s fourth issue.
D. Lay Opinion Testimony
By his fifth and sixth issues, Hartwell challenges the admission of lay opinion
testimony that he contends was not based on the testifying witnesses’ own perceptions.
Specifically, Hartwell contends that the witnesses, Morman and Blount, testified
impermissibly that Hartwell knew Morman was there when he initially struck her with the
vehicle and subsequently ran her over. 6
Admission of lay-opinion testimony is controlled by Texas Rule of Evidence 701.
When conducting a rule 701 evaluation, the trial court must decide: (1) whether the
opinion is rationally based on perceptions of the witness; and (2) whether it is helpful to a
clear understanding of the witness' testimony or to a determination of a fact in issue.
TEX. R. EVID. 701; Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997) (en banc).
The initial requirement that an opinion be rationally based on the perceptions of the
witness is itself composed of two parts. See TEX. R. EVID. 701; Fairow, 943 S.W.2d at
898. “First, the witness must establish personal knowledge of the events from which his
opinion is drawn and, second, the opinion drawn must be rationally based on that
knowledge.” Fairow, 943 S.W.2d at 898 (citing W ENDORF, SCHLUETER & BARTON, TEX.
RULES OF EVIDENCE MANUAL, § VII (4th ed. 1995)).
Rule 701 requires the proponent of lay-opinion testimony to establish, as a
predicate, that the witness has personal knowledge of the events upon which his opinion
is based. See id. Personal knowledge will generally come directly from the witness'
6 Hartwell’s fifth issue challenges Morman’s lay opinion testimony, and his sixth issue challenges
Blount’s lay opinion testimony.
15
senses. Id.; see, e.g., Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984). An
opinion will satisfy the personal knowledge requirement of rule 701 if it is an interpretation
of the witness's objective perception of events—i.e., his own senses or experience.
Fairow, 943 S.W.2d at 898–99; Doyle v. State, 875 S.W.2d 21, 23 (Tex. App.—Tyler
1994, no pet.).
After meeting the preliminary perception requirement, the trial court must then
determine if the opinion is “rationally based on that perception” to satisfy the first prong of
the rule 701 analysis. Id. at 899–900. An opinion is “rationally based on perception” if
it is an opinion that a “reasonable person could draw under the circumstances.” Id. at
900 (citing GOODE, W ELLBORN & SHARLOT, 2 TEX. PRACTICE GUIDE TO THE TEX. RULES OF
EVIDENCE: CIVIL AND CRIMINAL, § 701.2). A determination that the witness’ opinion is
rationally based on his perception satisfies the second prong of the first step of the rule
701 analysis. See id.
The second prong of the analysis for determining admissibility under rule 701 is a
determination that the opinion is helpful to the trier of fact in either understanding the
witness's testimony or determining a fact in issue. Id. There is not a “bright line”
indicating when an opinion is helpful. Id. This consideration is especially prudent when
the opinion concerns culpable mental state. Id.
1. Morman’s Lay Opinion Testimony
In the present case, Morman testified regarding the factual events leading to the
incident in question. In response to a question asking why she believed Hartwell knew
she was there, she testified:
Because I was audible as I approached the car, I said, “Hey, this is my car,”
and this guy, the way he reversed out of that parking spot, he was getting
16
out of there for a reason, and it was because I was standing there on the
side of the car. I mean, obviously he didn’t have anywhere to go or he
wasn’t in too big of a hurry if he decided to take the long way out of the
parking lot. I mean, I know that parking lot, and I know that there are better
and easier ways to get out of the parking lot if you are in a hurry. There is
no reason to take the back of the parking lot and come back around just to
get to the exit to the street when the exit was actually facing—actually
behind the car. I mean it pretty much seems like he took a detour around
the parking lot. He knew I was there.
She had previously testified that: (1) she approached the car from the front; (2) she
attempted to or did grab the passenger door; (3) she was laying in front of the driver’s
side of the vehicle before it struck her; (4) she was screaming; (5) there was a pause
between the time she was initially struck and knocked down and when she was run over.
We first look to the first part of the 701 analysis. As a preliminary matter, we find
that the State established the predicate that Morman had personal knowledge of the
events upon which her testimony was based. See Fairow, 943 S.W.2d at 898–99; TEX.
R. EVID. 602, 701. She actually saw the events to which that she testified. See Fairow,
943 S.W.2d at 898; Smith, 683 S.W.2d at 404.
The second phase of the first prong of the 701 analysis requires us to determine
whether Morman’s perception of the facts—i.e., that Hartwell knew she was there—is one
that a reasonable person could draw under the circumstances. Fairow, 943 S.W.2d at
899. Morman testified that she directly approached the vehicle from the front, that she
spoke out loud that the vehicle was hers, that she approached the passenger door and
put her hand on it, and that the manner in which Hartwell reversed and the path he took
to drive away was consistent with his knowledge that she was present. We determine
that, based on Morman’s first-hand factual perceptions, a rational person could form the
opinion that Hartwell knew that she was present. See id
17
Rule 701’s second requirement is that Morman’s opinion help the jury determine a
fact in issue: in this case, the mens rea requirement for the assault charge. Id.; see
TEX. R. EVID. 701. Hartwell’s mens rea was contested at trial—Hartwell contended that
he had no knowledge that he ran over Morman. The State was required to establish that
Hartwell acted with at least a reckless mens rea to obtain a conviction for aggravated
robbery. See TEX. PENAL CODE ANN. § 29.02 (West, Westlaw through 2015 R.S.). To
that end, Morman’s eye-witness testimony of the action and her perceptions of the event
were helpful in assisting the jury determine whether Hartwell knew Morman was present
when he hit her. Morman’s opinion, summing up her testimony, could help the jury make
their final factual determination regarding Hartwell’s mental state. See Osbourn v. State,
92 S.W.3d 531, 535 (Tex. Crim. App. 2002) (explaining that a witness’ testimony can
include opinions, beliefs, or inferences as long as they are drawn from his or her own
experiences or observations).
We determine Morman’s opinion testimony complied with the personal knowledge
and helpfulness requirements of Texas Rule of Evidence 701. See Fairow, 943 S.W.2d
at 898–900; TEX. R. EVID. 701. The trial court did not abuse its discretion by allowing
Morman’s opinion testimony.
2. Blount’s Lay Opinion Testimony
By his sixth issue, Hartwell challenges the admission of Blount’s lay opinion
testimony. Blount’s testimony was similar to Morman’s: both testified to the events
immediately preceding the incident in question and opined that Hartwell knew Morman
was present when Hartwell ran her over.
Blount specifically testified to the following: (1) Morman approached the vehicle
18
from the front; (2) Morman approached the vehicle’s passenger side; (3) the passenger
window was rolled down; (4) Morman placed her arms inside the passenger window;
(5) Blount heard Morman screaming and crying “help” and “stop” loudly; (6) Blount was
screaming “stop” and “what the f—“ very loudly while running behind the vehicle; and
(7) Hartwell drove around the building through the drive-through. Blount testified that
there was no doubt in her mind that Hartwell knew that someone was there.
Again, we first determine whether Blount’s opinion that Hartwell “knew someone
was in front of the vehicle” was rationally based on her perceptions. See Fairow, 943
S.W.2d at 898. Preliminarily, we find that the State established the predicate that Blount
had personal knowledge of the events upon which her testimony was based because she
testified that she actually saw the event take place. See TEX. R. EVID. 602, 701; Fairow,
943 S.W.2d at 898; Smith, 683 S.W.2d at 404.
We now determine whether Blount’s perception of the facts is one that a
reasonable person could draw under the circumstances. See Fairow, 943 S.W.2d at
899. Blount testified that she saw Morman approach the vehicle and put her arms inside
it, that while Morman had her arms inside the vehicle the van reversed, knocking her to
the ground, that the window was open and both Blount and Morman were screaming
loudly, and that Blount chased the vehicle. We determine that Blount’s first-hand factual
perceptions would allow a rational person to form the opinion that Hartwell knew someone
was present. See id
The second requirement for admissibility under rule 701 requires that Blount’s
opinion help the jury. Id.; see TEX. R. EVID. 701. As previously discussed, Hartwell’s
mens rea was disputed at trial and the State had to establish that Hartwell acted with at
19
least a reckless mens rea to obtain a conviction for aggravated robbery. See TEX. PENAL
CODE ANN. § 29.03. To that end, Blount’s eye-witness testimony and her perception of
the event were helpful in assisting the jury determine whether Hartwell knew Morman was
present when he hit her. Blount’s opinion summed up her testimony and was a rational
conclusion from the facts based on her personal knowledge. See generally Osbourn, 92
S.W.3d at 535.
We determine Blount’s opinion testimony complied with the personal knowledge
and helpfulness requirements of Texas Rule of Evidence 701. See TEX. R. EVID. 701;
Fairow, 943 S.W.2d at 898–900. The trial court did not abuse its discretion by allowing
Blount’s opinion testimony.
We overrule Hartwell’s fifth and sixth issues.
V. INCLUSION OF VOLUNTARY INTOXICATION INSTRUCTION
By his seventh issue, Hartwell contends that the trial court erred when it included
a voluntary intoxication instruction in the jury charge because the evidence did not support
it.
A. Standard of Review and Applicable Law
A claim of jury-charge error is governed by the procedures set forth in Almanza v.
State. 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh'g), overruled
on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). We
must first determine whether the trial court erred in its submission of the charge. Barrios
v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error exists and appellant
properly objected at trial, reversal is required if “some harm” resulted, i.e., if the error was
“calculated to injure the rights of the defendant.” Id. (quoting Almanza, 686 S.W.2d at
20
171). If appellant failed to object, error must be “fundamental,” and reversal will result
only if the error was so egregious and created such harm that the defendant “has not had
a fair and impartial trial.” Id. (quoting Almanza, 686 S.W.2d at 171).
“Texas law has long held that the trial court must charge the jury fully on the law
applicable to every issue raised by the evidence, whether such evidence be produced by
the State or the defense, and whether it is strong or feeble, unimpeached or contradicted.”
Taylor v. State, 856 S.W.2d 459, 470 (Tex. App.—Houston [1st Dist.] 1993), aff’d, 885
S.W.2d 154 (Tex. Crim. App. 1994). “Further, the trial court must give instructions that
are applicable to every legitimate deduction from the evidence.” Id.; Gilmore v. State,
666 S.W.2d 136, 156 (Tex. App.—Amarillo 1983, pet. ref'd). If the trial court determines
the evidence raises an issue and a charge on such issue is properly requested, then the
trial court must give a charge on that issue. Taylor, 856 S.W.2d at 470; Gilmore, 666
S.W.2d at 156.
B. Discussion
In this case, the proper inquiry requires us to determine whether trial evidence
raised a voluntary intoxication issue, therefore warranting an instruction. 7 See Taylor,
856 S.W.2d at 470; Gilmore, 666 S.W.2d at 156. The State admitted a video of
Hartwell’s custodial statement to Detective Boline. In that statement, Hartwell made
numerous references to drinking alcohol on the night in question. Twice Hartwell told
Boline that he was not “that impaired.” He also admitted to drinking beer with Voigt the
evening of the incident, and he stated that Voigt’s wife provided more beer than he
7 “A voluntary intoxication instruction is appropriate if there is evidence from any source that might
lead a jury to conclude that the defendant’s intoxication somehow excused his actions.” Sakil v. State, 287
S.W.3d 23, 26 (Tex. Crim. App. 2009).
21
anticipated. We find this evidence was sufficient to support the trial court’s voluntary
intoxication instruction. See Taylor, 856 S.W.2d at 472–73; Williams v. State, 576
S.W.2d 507, 510 (Tex. Crim. App. 1978) (finding the voluntary instruction proper when
the only evidence tending to show intoxication was appellant’s statement that he had
been drinking at the time of the offense and had had too much to drink, though appellant’s
comments were not supported by any other evidence at trial). The State requested an
instruction supported by the evidence—the trial court was duty bound to include the
instruction in the charge and did not err in so doing. See Taylor, 856 S.W.2d at 470;
Gilmore, 666 S.W.2d at 156.
We overrule Hartwell’s seventh issue.
VI. ENHANCEMENT ERROR
By his eighth issue, Hartwell contends that the evidence was legally insufficient to
support the use of a prior felony conviction for purposes of enhancement as a habitual
offender. Specifically, Hartwell contends that his prior conviction for the unauthorized
use of a motor vehicle does not qualify for enhancement pursuant to section 12.42(d) of
the Texas Penal Code. See TEX. PENAL CODE. ANN. § 12.42(d) (West, Westlaw through
2015 R.S.).
A. Standard of Review and Applicable Law
“A claim regarding sufficiency of the evidence need not be preserved for review at
the trial level and is not waived by the failure to do so.” Rankin v. State, 46 S.W.3d 899,
901 (Tex. Crim. App. 2001). On appeal, Hartwell challenges the sufficiency of the
evidence to support one of the indictment's enhancement paragraphs, not the inclusion
of that paragraph itself. Thus, he can raise this issue on appeal even though he did not
22
object to the paragraph until after the jury returned a verdict of guilty. See Tomlin v.
State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987).
We test the sufficiency of the evidence via the standard set forth in Jackson v.
Virginia and against the allegations contained in a hypothetically correct jury charge. 443
U.S. 307 (1979); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). These
standards apply irrespective of whether the appellant attacks the sufficiency of the
evidence underlying the current conviction or the “affirmative findings necessary to
sustain the imposition of an enhanced punishment.” Young v. State, 14 S.W.3d 748, 750
(Tex. Crim. App. 2000). When reviewing the legal sufficiency of the evidence at
punishment, we view all the evidence in the light most favorable to the verdict to see
whether a rational fact-finder could find the essential elements of the crime beyond a
reasonable doubt. Id.
B. Discussion
In the instant case, Hartwell’s conviction was enhanced by a finding that he was a
habitual offender. The relevant “habitual offender” subsection of the Texas Penal Code
provides the following:
[I]f it is shown on the trial of a felony offense other than a state jail felony
punishable under Section 12.35(a) that the defendant has previously been
finally convicted of two felony offenses, and the second previous felony
conviction is for an offense that occurred subsequent to the first previous
conviction having become final, on conviction the defendant shall be
punished by imprisonment in the Texas Department of Criminal Justice for
life, or for any term of not more than 99 years or less than 25 years. A
previous conviction for a state jail felony punishable under Section 12.35(a)
may not be used for enhancement purposes under this section.
TEX. PENAL CODE ANN. § 12.42(d) (emphasis added). The State had the burden to prove,
beyond a reasonable doubt, that appellant committed the primary offense, as well as the
23
two enhancement offenses. See Ex parte Augusta, 639 S.W.2d 481, 484–85 (Tex. Crim.
App. 1982), overruled on other grounds, Bell v. State, 994 S.W.2d 173 (Tex. Crim. App.
1999); Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998,
pet. ref'd).
Thus, for the State to show that Hartwell was subject to punishment as a two-time
habitual offender, it was required to show beyond a reasonable doubt that before
commission of the primary offense—aggravated robbery—Hartwell had been finally
convicted of two felonies that were subject to enhancement under section 12.42(d). See
id. § 12.42(d). For proof of the enhancement the State offered a prior judgment into
evidence.8 The prior judgment indicated that Hartwell had pled guilty to the offense of
the unauthorized use of a vehicle—a state jail felony—and had been sentenced pursuant
to section 12.35 of the penal code. See id. § 12.35. Section 12.35 of the Texas Penal
Code provides a range of punishments applicable for an individual convicted of a state
jail felony. See TEX. PEN. CODE ANN. § 12.35(a)–(c) (West, Westlaw through 2015 R.S.).
However, the judgment on Hartwell’s prior conviction did not specify whether he
was punished under subsection (a) or (c) of section 12.35. There was no other evidence
produced at trial that indicated whether he was punished pursuant to subsection (a) or
(c). This is important because section 12.42(d) provides that if his prior conviction was
under section 12.35(a), it may not be used for enhancement purposes. See id. at
§ 12.42(d). The State admits that it is impossible to tell from the record whether the prior
conviction in paragraph one was sufficient to enhance Hartwell’s sentence into a habitual
8 Hartwell does not contest the judgment on the second prior felony conviction that was used to
support his enhancement.
24
range of punishment. See TEX. PENAL CODE ANN. § 12.42(d).
Because there is no evidence in the record establishing that Hartwell’s prior
conviction for unauthorized use of a vehicle was eligible to be utilized to enhance
Hartwell’s sentence, we find the evidence was legally insufficient to support the enhanced
sentence pursuant to section 12.42(d) of the Texas Penal Code. See id.
We sustain Hartwell’s eighth issue and do not reach Hartwell’s remaining issues
contesting his punishment. See TEX. R. APP. P. 47.1.
VIII. CONCLUSION
Having determined that no error occurred at the guilt stage of trial, but holding that
there is insufficient evidence to support the jury's finding of true to the first enhancement
allegation, we affirm in part, and reverse in part the trial court's judgment and remand for
a new trial on punishment.9
NELDA V. RODRIGUEZ
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of July, 2015.
9 Generally, when there is legally insufficient evidence to support a conviction as alleged in the
indictment, we reverse and render the judgment that should have been rendered. See TEX. R. APP. P.
43.2(c), 51.2(d); Burks v. United States, 437 U.S. 1, 16–18 (1978); Greene v. Massey, 437 U.S. 19, 24–25
(1978); Clewis v. State, 922 S.W.2d 126, 133–34 (Tex. Crim. App. 1996). In this case, however, only the
jury's decision on punishment is affected by the lack of evidence to support the enhancement paragraph.
Thus, we will reverse the judgment and remand for a new trial on the issue of punishment only. C.f., TEX.
CODE CRIM. PROC. ANN. art. 44.29(b) (West, Westlaw through 2015 R.S.); Dixon v. State, 932 S.W.2d 567,
571 (Tex. App.—Tyler 1995, no pet.) (relying on article 44.29(b) and holding that reversal and remand for
new punishment was required where there was insufficient evidence to support punishment due to lack of
plea to enhancement allegations).
25