Patrick Evans v. State ( 2009 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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PATRICK EVANS, No. 08-07-00213-CR
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Appellant, Appeal from
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v. Criminal District Court No. 2
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC # 0989458D)
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OPINION
Patrick Evans appeals his criminal prosecution for capital murder. A jury found him guilty
and sentenced him to life in prison. For the reasons that follow, we affirm.
FACTUAL SUMMARY
Melvyn Williams died of multiple gunshot wounds to the head. The forensic pathologist
testified that the manner of death suggested an execution-style murder. The significant facts in the
case are controverted.
Wanda Williams1 is the mother of Mercutio “Kee Kee” Howard and the sister of Shirley
Tolliver. She testified that Kee Kee and Appellant were long-time friends. Wanda had a house
located at 5416 Purington in Fort Worth, Texas, but she provided live-in care for her grandmother
at the City View Apartments. Wanda found Melvyn’s body in the storage shed at the Purington
address.
Wanda’s involvement began when she received a telephone call from Appellant informing
1
W anda W illiams is not related to the decedent.
her that he was coming to Fort Worth. She told Kee Kee of Appellant’s plans. The next morning,
Wanda’s nephew, Joseph Tolliver, entered her bedroom at the City View Apartments and awakened
her. When he told her there was a body at her house, Wanda jumped up, grabbed her keys, and drove
to the Purington address. She noticed drops of blood on the sidewalk as she walked up the driveway.
She entered the house through the back door, walked into the backyard, and discovered the body.
She then contacted a United States Marshall who was a friend of her sister.
Kee Kee’s Version of Events
Kee Kee testified that he met Appellant in high school and they had known each other for
more than ten years. Kee Kee explained that Appellant had moved from Fort Worth to Houston, but
he would periodically travel to Fort Worth to visit his friends. When his mother related that
Appellant was coming to Fort Worth, Kee Kee thought it was odd because Appellant had been to
Fort Worth only a few days before. Kee Kee detailed his telephone conversation with Appellant:
When I walked in the house and the phone was ringing and I picked it up. And
[Appellant] had told me that he was on his way down here and he had a dead body
in the trunk. I said: Man, come on. I didn’t believe that right there. So then that’s
when he told me that he was bringing his cousin down here from college. So I
believed that. I told him: Well, just meet me at my house [5416 Purington].
Kee Kee and Appellant met at the Purington address. Kee Kee’s friend, Courtney Davis, was
with him when Appellant arrived in his black Intrepid. Appellant had marijuana, a big bag of
cocaine, prescription drugs, a revolver, and some type of handgun with a pearl handle. Kee Kee
testified that when he and Appellant were alone, Appellant described how he murdered Melvyn:
Q. While they [Joseph Tolliver and Courtney Davis] were gone who was
left at the house?
A. Just me and [Appellant].
Q. What happened while they were gone?
A. We was talking and that’s when he told me how he did it.
Q. What did he say?
A. He said he had -- he said he had went up there and it was unusual for
whoever this guy is to be up in the house by his self. So some way he
got him to come out and get in the car.
Q. What car?
A. In his black Intrepid.
Q. What happened?
A. He say he got him to come out there and get in the car. And the guy
was sitting on the passenger’s side. And he asked him -- some way
he got a gun. I don’t know where the gun, how Patrick got the gun or
whatever. I don’t I don’t know that. But anyway he told the dude to
get something out of the glove compartment. And he said when the
dude reached to get something out of the glove compartment he shot
him in the head.
Q. Did he say who this guy was?
A. He didn’t tell me no name.
Q. To this day do you know the guy’s name?
A. No. I don’t know what he looked like or nothing.
Q. Okay. Where did he say this happened?
A. In Houston in some apartment complex.
Q. Okay. How did he tell you that he ended up with all the guns and
drugs?
A. Because he said he shot the guy and he went back up in the apartment
and got everything and put it in the car.
Q. So the guns -- the guns and the drugs came from inside the
apartment?2
2
According to the record, there were thirty pounds of marijuana and 156 grams of cocaine.
A. Yes.
Q. Were they [Appellant’s] guns and drugs?
A. I’m assuming they was whoever that guy was up in there.
Appellant, Kee Kee, Courtney, and Joseph all participated in moving Melvyn’s body from
the trunk of Appellant’s car to the shed. They then consumed a considerable amount of the drugs
that Appellant had taken from Melvyn. The next morning, Kee Kee accompanied Appellant to a
local Home Depot where Appellant purchased a chain saw, gloves, and trash cans. Appellant
planned to dispose of Melvyn William’s body by dismembering it with the chain saw and throwing
away the body parts so they could not be identified. But Joseph told his Aunt Wanda about the body
and she contacted the authorities. The police arrived before the victim’s body was dismembered.
A police chase ensued, and Appellant, Joseph, Courtney, and Kee Kee were arrested.
Appellant’s Version of Events
Appellant denied killing Melvyn. He did know the victim, he knew Melvyn was a drug
dealer, and he had partied with him. At some point prior to the murder, Kee Kee, Wanda, and
Shirley Tolliver visited Houston. Appellant took Kee Kee around the music scene and introduced
him to Melvyn. Kee Kee and Melvyn talked privately for over an hour, but Appellant did not know
the details of the conversation.
Shortly before he disappeared, Melvyn asked Appellant for a ride to the Greens Point area
on the north side of Houston. Appellant last saw Melvyn talking to some guys in a blue Caprice.
Melvyn waved at Appellant to go ahead and leave. Appellant then went home, where he learned that
his grandmother had become very sick in Fort Worth. He then threw some clothes in a bag and left.
He arrived in Fort Worth around 4 or 5 p.m. that afternoon. He met Kee Kee at Wanda’s house, and
then allowed Joseph and Courtney to use his car. The two were gone approximately twenty to
twenty-five minutes. Then Appellant, Kee Kee, Joseph, and Courtney drove to City View to his
grandmother’s apartment. Kee Kee asked to use Appellant’s car. Kee Kee, Courtney, and Joseph
left while Appellant stayed to visit his grandmother. Appellant testified that the three men were gone
about two hours and that when they returned, he noticed that they had all changed clothes.
At around 9 or 10 p.m., Appellant and Kee Kee drove to Teleishea’s house. According to
Appellant, Kee Kee pulled a gun out while they were sitting at the table. They went into a back room
to hide the gun, and Kee Kee revealed he had another gun and some prescription drugs. Appellant
grabbed the guns and placed them in a box in the closet. While Appellant was panicking over the
guns, Kee Kee pulled out a bag of cocaine from his pocket and snorted some off of a plate he had
picked up in the kitchen. Appellant told Kee Kee to put all of his stuff on top of some boxes in the
closet, and Appellant walked out of the room. The two then left for Wanda’s apartment at City
View.
Once Appellant and Kee Kee returned to Wanda’s house, they discovered someone had
broken into the garage and trashed Kee Kee’s car. Appellant claimed he told Kee Kee to call the
police, but Kee Kee told him not to worry about it. Appellant found this unusual. Kee Kee then
asked Appellant to run him over to Home Depot, where Kee Kee bought some trash cans, a chain
saw, and some gloves that Kee Kee said he needed to clean up the backyard. Appellant drove
Kee Kee back to the Purington house and Kee Kee took the items out of the car. By now, it was
early Friday, August 5, 2005. Kee Kee asked to borrow Appellant’s car, leaving Appellant at the
house. According to Appellant, Kee Kee was gone fifteen or twenty minutes. Later, Appellant and
Kee Kee again ended up at City View where Courtney’s brother, Michael Howard, borrowed
Appellant’s car. Appellant then headed for Purington in Michael Howard’s car with Kee Kee and
Courtney as passengers. When Appellant turned off of Lancaster, Kee Kee suddenly asked him to
stop. Appellant parked the car, and Kee Kee jumped out and ran toward the backyard of a house.
After less than two minutes, Kee Kee climbed into the car and told Appellant to drive back toward
Lancaster. Shortly thereafter, Appellant heard sirens. Appellant slowed down and began to pull to
the right lane, but Kee Kee yelled, “Go, go, go.” When Appellant realized the police car wasn’t
going around them and was instead following them, he asked Kee Kee why the law was chasing
them, and Kee Kee’s response was, “You don’t want to know, man. Just go. Just go.” Appellant
was concerned about leaving the scene of an accident, but Kee Kee was yelling at him and told him,
“You better go. They’re going to charge us all with murder.” Kee Kee told Appellant that he was
referring to Appellant’s “homeboy” from Houston.3 Appellant claims he still had no idea what
Kee Kee was talking about and didn’t know anybody was dead until Saturday, August 6, 2005.
Appellant panicked when Kee Kee told him they were going to be charged with murder, and he
slammed on the brakes, hitting a curb, causing the vehicle to flip over.
3
In its brief, the State surmises that Appellant wanted the jury to infer that during the two-hour period that
Kee Kee, Courtney, and Joseph had his car, “they went to Houston, picked up Melvyn W illiams, murdered him, and
brought back his body in the trunk of the vehicle.”
SUFFICIENCY OF THE EVIDENCE
In Points of Error One and Two, Appellant challenges the legal and factual sufficiency of the
evidence to sustain the capital murder conviction, rather than a murder conviction followed by a
burglary.
Standard of Review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must
review all the evidence, both State and defense, in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts.
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact
or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman
v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843
(Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit
findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most
favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the
evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of
review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d
at 158-59.
When conducting a review of the factual sufficiency of the evidence, we consider all of the
evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922
S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.--El Paso
1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the
elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson
v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.
1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging
the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong
and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue
that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson,
23 S.W.3d at 11. Although we are authorized to set aside the fact finder’s determination under either
of these two circumstances, our review must employ appropriate deference and should not intrude
upon the fact finder’s role as the sole judge of the weight and credibility given to any evidence
presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set
aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958
S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.
Capital Murder
A person commits the offense of capital murder if he commits murder as defined by
TEX .PENAL CODE ANN . § 19.02(b)(1) and he intentionally commits the murder in the course of
committing or attempting to commit robbery. See TEX .PENAL CODE ANN . § 19.02(b)(1), 19.03(a)(2)
(Vernon 2003). The Penal Code does not define the phrase “in the course of committing or
attempting to commit” as used in Section 19.03(a)(2).
The Court of Criminal Appeals has defined the phrase to mean “conduct occurring in an
attempt to commit, during the commission, or in the immediate flight after the attempt or
commission of the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App. 1993); Riles v.
State, 595 S.W.2d 858, 862 (Tex.Crim.App. 1980). In Garrett, the court determined that in order
for murder during a robbery to qualify as capital murder, the intent must be formed prior to or
concurrent with the murder. Garrett, 851 S.W.2d at 856. The court reached this conclusion because
the point at which the defendant formulates his intent to take the victim’s property is critical to
differentiating, in the abstract, between the defendant’s commission of capital murder in the course
of committing robbery and his commission of first-degree murder, followed by theft from a corpse,
a third-degree felony. See White v. State, 779 S.W.2d 809, 815 (Tex.Crim.App. 1989), cert. denied,
495 U.S. 962, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990).
Intent is a fact question for the trier of fact, and it may be inferred from the acts, words, and
conduct of the accused. Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999); Wallace
v. State, 52 S.W.3d 231, 234 (Tex.App.--El Paso 2001, no pet.). As a result of its nature, mental
culpability must generally be inferred from the circumstances under which a prohibited act or
omission occurs. Wallace, 52 S.W.3d at 235; Robles v. State, 664 S.W.2d 91, 94 (Tex.Crim.App.
1984).
In White v. State, the defendant argued that for his conduct to be “in the course of robbery,”
the State had to prove that he formed the intent to take the victim’s property before he killed her.
779 S.W.2d at 814. White admitted killing the victim and taking her car, but he did not admit killing
her before, during, after, or in flight from taking her car and other property. Id. The court observed
that if White entered the victim’s apartment the evening of the murder with the intent to take
possessions from the apartment or her car after he raped and/or killed her, the murder would be
clearly in the course of robbery. Id. at 815. If he formed the intent to take the victim’s car only to
escape the scene, then killed his victim to avoid apprehension, the killing would likewise be in the
course of robbery. Id. The only other hypothesis from the evidence presented was that White
entered the victim’s apartment with no thought of the property he had walked around and presumably
observed while painting for the three proceeding days, killed the victim for no reason (or in order
to prevent her from reporting rape), then only as an afterthought, decided to flee in the victim’s car
and take some of her property from the apartment as well. Id. The court found a rational trier of fact
would be justified in rejecting the notion that White spent three days in the victim’s apartment, with
her personal possessions all about him, and never considered taking any of them until after he killed
her the evening of the third day. Id.
Here, Appellant argues that there is no evidence that he made the decision to steal the guns
and drugs prior to or during the murder. He contends that Kee Kee’s testimony makes it just as
likely that Appellant’s decision to burglarize the apartment was an afterthought. He suggests that
this is a case of murder followed by burglary.
Appellant’s own testimony established that he knew the victim and that the victim was a drug
dealer. Kee Kee testified that Appellant told him it was unusual for Melvyn to be in the house alone
and that some how, he got him to come out and get in the car. Appellant also told Kee Kee that he
shot Melvyn and went back up to the apartment, took everything, and put it into the car. He boasted
to Kee Kee and Joseph that he “hit a lick,” which Kee Kee defined as taking something from
someone or robbing them. There is evidence that Appellant killed the victim first, then went back
to the apartment to steal the drugs and guns. The jury was left to decide whether Appellant formed
the intent to rob the victim prior to the murder based on the evidence that Appellant knew the victim,
knew the victim was a drug dealer, knew the victim was alone in the house, lured the victim into the
car, re-entered the home, and took the drugs and guns. The jury was free to disbelieve that the
robbery was merely an afterthought. The circumstantial evidence was sufficient to allow a jury to
reasonably conclude that Appellant formed the intent to rob prior to or during the commission of
murder.
Viewing the evidence in the light most favorable to the verdict, we find that the evidence is
legally sufficient on all the essential elements as alleged. Viewing the evidence in a neutral light,
we recognize the conflicting testimony elicited by Appellant. But the jury could have easily rejected
Appellant’s version of the events and found that Appellant committed the murder and formed the
intent to rob before or during the commission. Because such a conclusion is not contrary to the
overwhelming weight of the evidence, it is factually sufficient. We overrule Points of Error One and
Two.
IMPROPER STATEMENTS DURING VOIR DIRE
In Point of Error Three, Appellant complains that the trial judge erred by allowing the State
to vouch for the credibility of prosecution witnesses. A trial court has wide discretion to control voir
dire and its actions are reviewed for an abuse of discretion. Thornton v. State, 994 S.W.2d 845, 852
(Tex.App.--Fort Worth 1999, pet. ref’d). A prosecutor may not convey to the jury during argument
that he possesses specialized knowledge or expertise about a contested factual issue in the case.
Jackson v. State, 17 S.W.3d 664, 675 (Tex.Crim.App. 2000). Such comments pose a danger of
influencing the jury’s opinion in deciding the issue. Johnson v. State, 698 S.W.2d 154, 167
(Tex.Crim.App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986); Boyd v.
State, 643 S.W.2d 700, 707 (Tex.Crim.App. 1983); Maupin v. State, 930 S.W.2d 267, 270
(Tex.App.--Fort Worth 1996, pet. ref’d). In evaluating whether the prosecutor interjected his
personal opinion into the argument, we must consider the challenged remark in the context in which
it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).
During voir dire, the prosecutor stated:
Witnesses, you may not automatically believe or disbelieve any witness based upon
his or her status. And what that means is you have all kinds of people that come in
here to testify. You have police officers, prostitutes, clergymen, nuns, drug dealers.
The State doesn’t get to pick the witnesses. Okay. The State puts on the witnesses
that we have, provided we believe they’re credible. [Emphasis added]. You as
jurors--
Mr. Burns: Objection as to what the State believes. It’s a asserting her personal
opinion and becoming a character witness for their witnesses.
The Court: Say it again.
Mr. Burns: She is asserting her personal opinion, Your Honor. Becoming a
character witness for her witnesses at that point.
The Court: That’s overruled.
Mr. Burns: Note our exception.
Ms. Minton: I have a duty not to offer what I believe to be perjured testimony.
Okay. I’m the prosecutor. That’s the way it works.
Okay. What that means though is you as jurors can believe all of the testimony of a
witness, some of the testimony of a witness or none of the witness testimony as a
witness. You’re the ones that judge the credibility of that from their demeanor and
based on how plausible it is what they’re telling. Okay. That’s up to the juror. Now,
what it means though is if a person walks in here with a uniform on, you don’t
automatically get to believe them before they’ve opened their mouth. Once they start
telling you their training and their experience and what they do for a living, you may
believe that their testimony is going to be more credible. You may not. You may
have the opposite opinion of police officers. You may believe that -- when you find
out that they’re a police officer and believe nothing that he says as the truth. What
it means is that you cannot make that decision based upon their status alone.
If a prostitute walks in here and looks like a prostitute and the first thing out of her
mouth is I’m a prostitute, you can’t automatically disbelieve because of her
occupation. You have to wait until she talks and you get to hear about her. You may
ultimately determine you don’t believe her. But you may also determine that this is
the particular type of person that will be testify in this case. Okay. Anybody have
any questions? Okay. Can everybody do that for me? Can everybody say I’m going
to wait and see. I’m going to listen to what they have to say before I start judging
their -- their demeanor or credibility just based on who they are and the types of
person -- types of people that they are.
Even if we were to agree that the prosecutor “vouched” for the credibility of the State’s
witness, we conclude that error, if any, was harmless. Error that does not affect a substantial right
must be disregarded. A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict. TEX .R.APP .P. 44.2(b); King v. State, 953
S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v. United States, 328 U.S. 750, 776, 66
S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946). If the error had no influence or only a slight influence on
the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). If we are
unsure whether the error affected the outcome, we should treat it as harmful. Webb v. State, 36
S.W.3d 164, 182 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d). Neither party has the burden
of proof under Rule 44.2(b). Id. Instead, we will examine the record for purposes of determining
harm. Id.
We utilize a three-pronged test to determine harm: (1) the severity of the conduct as
evidenced by the prosecutor’s argument (the magnitude of the prejudicial effect of the prosecutor’s
remarks); (2) the measures adopted to cure the misconduct, that is, the effect of any cautionary
instruction given by the court; and (3) the certainty of conviction absent the misconduct. Martinez
v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000), citing Mosley v. State, 983 S.W.2d 249, 259
(Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999).
Viewing the record as a whole, we conclude that the prosecutor’s comments did not have a
substantial or injurious effect on the jury’s verdict. See King, 953 S.W.2d at 271. After the court
overruled Appellant’s objection, the prosecutor immediately informed the venire members that they
must ultimately judge the credibility of a witness. There were no similar comments during the trial
or during closing arguments. There is nothing to indicate that the panel as a whole or any specific
venire member was affected by the prosecutor’s comments or that the comments impacted the
verdict. The State presented multiple pieces of evidence against Appellant, including the testimony
of Kee Kee Howard, Wanda Williams, and Joseph Tolliver. It produced the murder weapon, the
autopsy bullets, the blood and DNA found in Appellant’s black Intrepid, and the chemist’s testimony
linking the DNA to the victim. We overrule Point of Error Three.
SIXTH AMENDMENT CONFRONTATION CLAUSE
In Point of Error Four, Appellant challenges the admission of a statement made by a non-
testifying witness which denied Appellant’s right of confrontation. The State responds that Detective
McCaskill’s testimony was not “testimonial.”
Relevant Facts
During trial, Detective McCaskill testified that Wanda Williams and Shirley Tolliver came
to his office to speak to him. During this meeting, he learned there was a body in a storage shed
behind Wanda’s home. Defense counsel immediately objected to hearsay and denial of
confrontation. The court overruled the objection and allowed Detective McCaskill to proceed.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
In Crawford v. Washington, the Supreme Court held that this provision bars “admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 53-4, 124 S. Ct.
1354, 1365, 158 L. Ed. 2d 177 (2004). The Supreme Court held that only “testimonial statements”
caused the declarant to be a “witness” within the meaning of the Confrontation Clause. See id., at
51, 124 S.Ct. at 1364.
In Davis v. Washington, the Supreme Court clarified the distinction between testimonial and
nontestimonial statements:
Without attempting to produce an exhaustive classification of all conceivable
statements--or even all conceivable statements in response to police interrogation--as
either testimonial or nontestimonial, it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose of
the interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.
547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L.Ed.2d. 224 (2006).
Crawford involved tape recorded statements by a declarant made during a police interview
while Davis involved a 9-1-1 call by the declarant detailing a domestic violence dispute. The
declarant’s interrogation in Crawford took place hours after the events she described, but the
declarant in Davis spoke about events as they actually occurred. The Supreme Court noted that any
reasonable listener would recognize that the declarant in Davis was facing an ongoing emergency
and that the questioning was necessary to resolve it. Davis, 547 U.S. at 823. This included the
operator’s effort to establish the identity of the assailant, so that the dispatched officers might know
whether they would be encountering a violent felon. Id. Finally, the court noted the difference in
formality between the interviews of the Davis and Crawford declarants. Davis, 547 U.S. at 827. In
Crawford, the declarant responded calmly at the station house to a series of questions, with the
officer-interrogator taping and making notes of her answers. Id. In Davis, the declarant’s answers
were provided over the telephone, in an environment that was neither tranquil nor safe. Id.
We also find guidance in Langham v. State, 269 S.W.3d 108, 113 (Tex.App.--Eastland 2008,
pet. granted). There, a detective was allowed to testify concerning information provided by a
confidential informant. The informant was not “bearing testimony” or making “[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact” necessary to
the criminal prosecution in the case. Id., citing Crawford, 541 U.S. at 51, 124 S. Ct. at 1354. Instead,
the primary purpose was to provide sufficient information to the detective so that he could obtain a
search warrant. Id. These statements were admissible because they were nontestimonial. Id. at 114.
Appellant contends this is a classic case of an ongoing emergency because any questioning
by Detective McCaskill was conducted to enable police officers to render assistance. The State
counters that the two women did not attempt to recount the crime, neither knew what had actually
transpired, and they did not implicate Appellant. We agree that the statements were nontestimonial.
Wanda and her sister simply relayed information to Detective McCaskill after the shocking discovery
of a dead body at Wanda’s home. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006). They did not implicate Appellant in any way. Finding no error, we overrule Point of
Error Four.
EVIDENTIARY ERROR
A trial court’s ruling on the admission or exclusion of evidence is reviewed for an abuse of
discretion. Pena v. State, 155 S.W.3d 238, 243 (Tex.App.--El Paso 2004, no pet.), citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). An abuse of discretion exists
when the trial court’s decision is so clearly wrong that it lies outside the zone of reasonable
disagreement. Pena, 155 S.W.3d at 243-44, citing Montgomery, 810 S.W.2d at 391. The trial court
abuses its discretion if its decision or action is arbitrary, unreasonable, and made without reference
to any guiding rules or principles. Id.
Photograph of the Victim
In Point of Error Five, Appellant complains that the trial court erred in admitting a
photograph during the guilt phase of the trial. The photo depicts the deceased holding his young
niece and was offered as proof of identity. The State replies that Point of Error Five not only fails
to contain a clear and concise argument for these contentions, it also fails to cite to the record. We
agree. Moreover, Appellant fails to articulate the exact nature of the prejudice caused by admission
of the exhibit. He simply states the “prejudicial effect is enormous.” We overrule Point of Error
Five as it is improperly briefed. See TEX .R.APP .P. 38.1(h); Whipple v. State, 281 S.W.3d 482
(Tex.App.--El Paso 2008, pet. ref’d).
Polygraph Test
In Point of Error Six, Appellant faults the trial court for not affording him the opportunity
to question a State witness who blurted out under cross-examination that he had taken a polygraph.
Appellant had wanted to inquire as to the questions asked him by the polygraph operator. To
preserve error on appeal, the complaining party must make a timely, specific objection and obtain
a ruling on the objection. TEX .R.APP .P. 33.1(a); see Broxton v. State, 909 S.W.2d 912, 918
(Tex.Crim.App. 1995). The issue raised on appeal must also comport with the objection made at
trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997); Broxton, 909 S .W.2d at 918.
During trial, defense counsel cross-examined Joseph Tolliver:
Defense: Part of your deal is that you would have to--have to testify truthfully;
is that correct?
Joseph: Yes.
Defense: Who would determine if you were testifying truthfully?
Joseph: I took a polygraph test on the questions that they asked.
State: Your Honor --
Defense: Objection.
The Court: All right.
Defense: Move for mistrial, Your Honor.
The Court: That’s denied.
Defense: I ask--object to the last unresponsive question and ask for a ruling.
State: Your Honor, I don’t believe it was nonresponsive.
Defense: It was non --
State: I think he was trying to answer the question.
Defense: That is -- that’s a deal with the State, Your Honor. And they know
better that to do that. That’s --
State: We didn’t. He did.
The Court: What are you talking about?
Defense: To make a -- a -- a-- side-bar remark as she just did.
The Court: Let’s move on. Okay.
Defense: I want a ruling on my -- my objection.
The Court: It’s overruled. Let’s move on.
Defense: Note our exception.
Now then, did the State of Texas talk to you about your testimony,
who is going to determine that you’re telling the truth?
State: Your Honor --
The Court: And that’s not even a question. How would he even --
Defense: That goes to his mindset, Your Honor.
The Court: Well, first of all, you’re asking for something that a third party might
do and I don’t think that’s a proper question. So let’s have some
other questions.
. . .
Defense: Object to 38.05, Your Honor. It clearly goes to intent and motive.
The Court: I already ruled on that, Let’s move on.
At trial, Appellant’s objection related to Rule 38.05 of the Texas Code of Criminal
Procedure. TEX .CODE CRIM .PROC.ANN . art. 38.05 (Vernon 1979). On appeal, however, he
complains that the trial court erred by not allowing him to ask Joseph questions concerning the
polygraph exam. Because Appellant’s trial objection does not comport with the argument raised on
appeal, the complaint is not preserved for our review. We overrule Point of Error Six. Having
overruled all issues for review, we affirmed the judgment of the court below.
August 12, 2009
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating
(Do Not Publish)