Lavoie, Michael Paul ( 2015 )

PD-1135-15
PD-1135-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/1/2015 9:47:15 AM
Accepted 9/1/2015 1:46:16 PM
ABEL ACOSTA
NO._________________
CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
MICHAEL PAUL LAVOIE
Petitioner
v.
THE STATE OF TEXAS
Respondent
Petition is in Cause No. 1251622D from the 213th
Criminal Court of Tarrant County, Texas,
and Cause No. 02-14-00333-CR in the
Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Kimberley Campbell
TBN: 03712020
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorneys for Petitioner
September 1, 2015 Micheal Paul Lavoie
IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.
Trial Court Judge: Hon. Louis Sturns,
213th Criminal Court, Tarrant County
Petitioner: Micheal Paul Lavoie
Petitioner’s Trial Counsel: Pia Rodriguez
TBN: 00792983
Attorney at Law
1116 W. Randol Mill, Suite B
Arlington, Texas 76012
–and–
Thomas Murphree
TBN: 24083542
Attorney at Law
2745 Hemphill St.
Fort Worth, Texas 76110
Petitioner’s Counsel Kimberley Campbell
on Appeal: TBN: 03712020
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Page Simpson
TBN: 24046073
Kevin Boneberg
TBN: 24009911
District Attorney’s Office
401 W. Belknap
Fort Worth, Texas 76196
ii
Appellee’s Counsel Debra Windsor
on Appeal: TBN: 00788692
John Meskunas
TBN: 24051044
District Attorney’s Office
401 W. Belknap Street
Fort Worth, Texas 76196
iii
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
I. The Court of Appeals erred when it affirmed the trial court’s
denial of Appellant’s 404(b) objection to extraneous offense
evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
C. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
D. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
E. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 0
F. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
iv
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 7
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
v
INDEX OF AUTHORITIES
Cases page
Casey v. State,
215 S.W.3d 870 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . .8
De La Paz v. State,
279 S.W.3d 336 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 7
Johnson v. State,
43 S.W.3d 1 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . 13, 14, 15
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 12
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 12
Kotteakos v. United States,
328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). . . .12-13, 14, 15
Lavoie v. State,
02-14-00333-CR, 2015 WL (Tex. App.–
Fort Worth, August 28, 2015, no. pet. h.)
(mem. op., not designated for publication). . . . 2, 7
Mart. v. State,
173 S.W.3d 463 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . 8, 10, 11
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . . . . . 8, 9, 10, 11
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 13, 15
O’Neal v. McAninch,
513 U.S. 432, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). . . . . . . .1 3, 15
vi
Sewell v. State,
629 S.W.2d 42 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . 7
Webb v. State,
36 S.W.3d 164 (Tex. App.-
Houston [14th Dist.] 2000, pet. ref’d). . . . . . . . . . . . . 13, 15
Winegarner v. State,
235 S.W.3d 787 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 7
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 10, 11, 12
Statutes
T EX. P ENAL C ODE A NN. § 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . . . 1
Court Rules
T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2
T EX. R. E VID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 11
T EX. R. E VID. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11
vii
STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On October 27, 2011, Michael Paul Lavoie (“Mr. Lavoie” or
“Appellant”) was charged by indictment with five counts of
aggravated robbery with a deadly weapon.1 (C.R. 6-7); See T EX. P ENAL
C ODE A NN. § 29.03(a)(2) (West 2011). On August 11, 12, 13 & 14, 2014,
a jury trial was held in the 213th Criminal District Court of Tarrant
County, the Honorable Louis Sturns, presiding. (II, III, IV, V & VI R.R.
passim). The jury found Mr. Lavoie guilty of all four counts as charged
in the indictment. (VI R.R. 28). Punishment was to the trial court, which
sentenced Mr. Lavoie to four life sentences in the Texas Department of
Criminal Justice. (VI R.R. 235). A timely Motion for New Trial was filed
on August 29, 2014, which was overruled by operation of law. (C.R.
158). A Timely Notice of Appeal was filed on August 14, 2014. (C.R.
152).
1
The state waived the fifth count prior to trial. (III R.R. 7).
1
STATEMENT OF PROCEDURAL HISTORY
The opinion of the Second Court of Appeals affirming Mr.
Lavoie’s judgment was handed down on August 28, 2015. See Lavoie v.
State, 02-14-00333-CR, 2015 WL (Tex. App.–Fort Worth, August 28,
2015, no. pet. h.) (mem. op., not designated for publication). This
Petition for Discretionary review is therefore timely.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it affirmed the trial court’s
denial of Appellant’s 404(b) objection to extraneous offense
evidence.
REASONS FOR REVIEW
1. The Second Court of Appeals has decided an important question
of state or federal law in a way that conflicts with the applicable
decisions of the Court of Criminal Appeals or the Supreme Court
of the United States.
2. The decision of the Second Court of Appeals is in conflict with
another court of appeals’ decision on the same issue.
2
ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it affirmed the trial court’s
denial of Appellant’s 404(b) objection to extraneous offense
evidence.
A. Facts
At trial, Mr. Lavoie did not dispute the fact that he committed
the charged offenses. (IV R.R. 23). Rather, Mr. Lavoie’s entire trial
strategy was to only contest the deadly weapon (firearm) allegation. (IV
R.R. 23-25). The state presented evidence that Mr. Lavoie had robbed
a Papa John’s pizza store in Tarrant County on February 8, 2011. (V
R.R. 52, 55, 56). In fact, Mr. Lavoie confessed to the robbery as soon as
he was apprehended, though he admitted only to using a non-
operative BB gun in the robbery. (V R.R. 24, 27, 55, 56, 76). At trial, the
state presented the testimony of Papa John’s employees who were
present at the robbery.
Brittany Jones testified that she was not sure whether the object
in the robber’s hand was a real gun or not. (IV R.R. 46). She further
testified that the robber did not make any motions with the alleged
gun, point it at her, or make any direct threats against anyone. (IV R.R.
41, 44).
3
Mark Roman testified that the robber didn’t point the gun at him,
make any sort of threats, and that he wasn’t really afraid at the time.
(IV R.R. 61-62). Roman further testified that what he saw could possibly
have been a toy or BB gun. (IV R.R. 63-64).
Richard Smitherman–the manager at Papa John’s and the person
who was closest to the robber–testified that he questioned the gun’s
authenticity and didn’t know if it was even real or not. (IV R.R. 71, 86,
99). Smitherman further testified that the robber never pointed the gun
directly at him, or made any imminent threats of harm. (IV R.R. 85, 89).
Finally, Smitherman admitted that he couldn’t even tell what the
robber had in his hand, or whether it was a toy, water, or BB gun, and
that he entertained doubts that it was real. (IV R.R. 100, 103-04, 105).
Cristian Aguilara, a delivery driver for Papa John’s who
happened to be in the store at the time of the robbery, testified that his
mind didn’t process to question whether it was a real gun. (IV R.R. 115,
116).
Arguing that the authenticity of the alleged gun was at issue, the
state then sought to present evidence of previous, similar robberies
committed by Lavoie in Johnson County for which he had already been
4
convicted. (V R.R. 79-80). At the hearing outside the presence of the
jury, the state presented that there was a witness from the prior
Johnson County robbery who was familiar with firearms and who
could testify unequivocally that Lavoie had used a real firearm in that
Johnson County robbery. (V R.R. 80). The defense objected on
relevance, character conformity and unfairly prejudicial grounds at the
hearing and by pretrial motion. (V R.R. 85-86 ; C.R. 37). The trial court
overruled the objections and allowed the extraneous offense testimony.
(V R.R. 88).
The state then presented the testimony of Patricia Jones, who
testified that she was present at the Johnson County robbery which
occurred on December 17, 2010 (approximately seven weeks prior to
the instant offense); that she was very familiar with firearms since her
former husband had been a gunsmith; and that she was positive that
Mr. Lavoie had used a real firearm in the prior robbery. (V R.R. 89-95,
107). Patricia Jones went so far as to opine that the weapon Mr. Lavoie
had used in the Johnson County robbery was a Beretta. (V R.R. 95, 104).
After the state rested and prior to the start of Mr. Lavoie’s
defense, it requested a hearing outside the presence of the jury on the
5
qualifications of Mr. Lavoie’s firearms expert, Kristian Jara. (V R.R.
126). Testimony revealed that Mr. Jara had been in the United States
Air Force for over seven years, where he had been extensively trained
on various weapons, including handguns. (V R.R. 128). It was further
elicited that he had carried a sidearm every day as part of his duties as
a security forces officer while in the Air Force, and had further been
trained in basic police practices in the Air Force. (V R.R. 127). Mr. Jara
further testified that he had particular knowledge of Beretta firearms,
(V R.R. 131, 135), and that he currently owned and operated a corporate
security consulting investigative company and possessed a concealed
handgun license. (V R.R. 126, 129). The trial court denied Mr. Jara to
testify as an expert. (V R.R. 139). Mr. Lavoie thereupon rested without
putting on any evidence. (V R.R. 139).
The jury convicted Mr. Lavoie of four counts of aggravated
robbery. (VI R.R. 28). Punishment was to the trial court, which
sentenced Mr. Lavoie to four life sentences in the Texas Department of
Criminal Justice. (VI R.R. 235).
B. The Opinion Below
The Second Court of Appeals correctly held that Mr. Lavoie
6
preserved his Rule 404(b) objection to the testimony of Patricia Jones in
which she described the Johnson County robbery. See Lavoie, 2015 WL
at *2. However, the court then went on to hold that the trial court did
not abuse its discretion in admitting the objectionable testimony. Id. at
*7.
C. Standard of Review
An appellate court must review a trial court’s ruling on
admissibility of extraneous offenses under an abuse of discretion
standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
A trial court’s ruling on evidentiary matters will not be reversed unless
the decision was outside the zone of reasonable disagreement.
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the
trial court’s ruling can be justified on any theory of law applicable to
that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d at
345 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)
(“When a trial court’s ruling on the admission of evidence is correct,
although giving a wrong or insufficient reason, this Court will not
reverse if the evidence is admissible for any reason.”)).
D. Applicable Law
Relevant evidence of the defendant’s bad character is generally
7
not admissible in order to show that he acted in conformity with that
bad character. T EX. R. E VID. 404(b).2 However, evidence of an
extraneous offense may be admissible under Rule 404(b) to show proof
of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. Id. Extraneous-offense evidence is
also admissible when it is offered to rebut a defense issue that negates
one of the elements of the crime charged. Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007). To be admissible on this basis, the evidence
must logically serve to make more or less probable (1) an elemental
fact, or (2) defensive evidence that undermines an elemental fact.
Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005) (citing
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990)).
If the trial court determines that the evidence of an extraneous
offense has relevance apart from character conformity, the court should
2
Rule 404(b) reads:
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that
upon timely request by the accused in a criminal case, reasonable notice is
given in advance of trial of intent to introduce in the State’s case-in-chief
such evidence other than that arising in the same transaction. TEX. R. EVID .
404(b).
8
admit the evidence absent the opponent’s further objection on
prejudicial grounds under Rule 403. T EX. R. E VID. 403;3 Montgomery, 810
S.W.2d at 389. If this objection is made, the trial court must weigh the
probativeness of the evidence against its potential for unfair prejudice,
that is, the tendency of the evidence to suggest a decision on an
improper basis, commonly, though not necessarily, an emotional one.
Id. In balancing the probative value of the evidence against the danger
of unfair prejudice from the admission of the evidence, the trial court
considers the following factors:
(1) how compellingly the extraneous offense evidence serves to make
a fact of consequence more or less probable—a factor which is related
to the strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in
some irrational but nevertheless indelible way”;
(3) the time the proponent will need to develop the evidence, during
3
Rule 403 of the Texas Rules of Evidence reads:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence. TEX. R. EVID . 403.
9
which the jury will be distracted from consideration of the indicted
offense;
(4) the force of the proponent’s need for this evidence to prove a fact of
consequence, i.e., does the proponent have other probative evidence
available to him to help establish this fact, and is this fact related to an
issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)
(citing Montgomery, 810 S.W.2d at 389–90).
E. Discussion
The extraneous-offense evidence was argued by the state to be
admissible to rebut Mr. Lavoie’s defensive theory here that the object
was not an actual firearm. Martin, 173 S.W.3d at 466 (citing Montgomery,
810 S.W.2d at 387). However, the evidence completely fails to prove
anything in reference to the Papa John’s robber at issue here, and
instead only shows that at least one witness to the Johnson County
robbery believed that Mr. Lavoie had carried a firearm during a
robbery some seven weeks prior. The evidence merely seeks to convict
Mr. Lavoie based on character conformity evidence, and whether Mr.
Lavoie carried a firearm or not at a robbery seven weeks prior to the
instant offense serves to rebut nothing in reference to the instant
offense. However, it does allow the state to inform the jury that Mr.
10
Lavoie had committed a robbery seven weeks prior to the Papa John’s
robbery. As the facts of the Johnson County robbery fail to rebut a
defensive theory, or make an elemental fact more or less probable, the
extraneous-offense evidence should not have been admitted by the trial
court. See T EX. R. E VID. 404(b); see also Martin, 173 S.W.3d at 466;
Montgomery, 810 S.W.2d at 387.
Additionally, the evidence was not admissible under Rule 403,
See T EX. R. E VID. 403, as it was more prejudicial than probative. First,
the extraneous-offense evidence provided by Patricia Jones was
powerful, direct, and unequivocal that Mr. Lavoie had used an actual
firearm in the Johnson County robbery.4 See Wyatt, 23 S.W.3d at 26.
Second, the similarity of the extraneous offense would necessarily
impress the jury “in some irrational but nevertheless indelible way”
that Mr. Lavoie was a criminal generally. See id. Third, the evidence of
the extraneous offense consumed nearly thirty pages of transcript and
was the last evidence that the jury heard; thus it had a disproportionate
impact in the minds of the jury and served to distract it from the
charged offenses. See id. Finally, the evidence was not critical to the
4
As discussed below however, this fact exacerbates the trial court’s error
in denying Mr. Lavoie’s controverting expert testimony.
11
state. There were four eyewitnesses to the robbery who each testified
that Mr. Lavoie carried a firearm during the robbery. Id. Thus, the
extraneous-offense evidence w as m o re prejudicial than
probative–especially since it was probative of nothing more than the
fact that Mr. Lavoie was a criminal generally–and the trial court abused
its discretion in admitting it. Id.
F. Harm Analysis
Once this Court determines that the trial court abused its
discretion in admitting evidence of the Johnson County offense because
the danger of unfair prejudice to Mr. Lavoie substantially outweighed
the probative value of the evidence, the Court must determine whether
he was harmed by the error. See T EX. R. A PP. P. 44.2. Error under the
rules of evidence in the admission of evidence normally constitutes
nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). A reviewing court is to disregard a nonconstitutional
error that does not affect the substantial rights of the defendant. T EX. R.
A PP. P. 44.2(b). A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s
verdict. 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.
12
1557 (1946)). In Kotteakos, the United States Supreme Court explained:
[I]f one cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were not
affected. The inquiry cannot be merely whether there was
enough to support the result, apart from the phase affected by
the error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the
conviction cannot stand.
328 U.S. at 765, 66 S.Ct. at 1248 (emphasis added); see Motilla v. State, 78
S.W.3d 352, 355–58 (Tex. Crim. App. 2002); Johnson v. State, 43 S.W.3d
1, 4 (Tex. Crim. App. 2001). The Supreme Court has defined “grave
doubt” to mean “in the judge’s mind, the matter is so evenly balanced
that he feels himself in virtual equipoise as to the harmlessness of the
error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994, 130
L. Ed. 2d 947 (1995); Webb v. State, 36 S.W.3d 164, 182–83 (Tex.
App.-Houston [14th Dist.] 2000, pet. ref’d). If the reviewing court is
unsure whether the error affected the outcome, the court should treat
the error as harmful, i.e., as having a substantial and injurious effect or
influence in determining the jury’s verdict. O’Neal, 513 U.S. at 435, 115
S.Ct. at 994; Webb, 36 S.W.3d at 182–83.
The defendant is not required to prove harm from an error.
Johnson, 43 S.W.3d at 4. Indeed, there ordinarily is no way to prove
13
“actual” harm. Id. It is instead the duty of the reviewing court to assess
harm from the context of the error. Id. Thus, the proper inquiry is
whether the trial court’s error in allowing the State to prove up the
Johnson County extraneous offense substantially swayed or influenced
the jury’s verdict, or whether this Court is left in grave doubt as to
whether this extraneous offense evidence substantially swayed or
influenced the jury’s verdict. Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248;
Johnson, 43 S.W.3d at 4. In making this determination, this Court must
consider the trial court’s erroneous admission of the extraneous offense
in the context of the entire record and not just whether there was
sufficient or overwhelming evidence of the defendant’s guilt. Motilla,
78 S.W.3d at 355–56.
Again, the only question at issue here was whether the object
wielded by Mr. Lavoie during the robbery was an actual firearm or a
toy. To that end, the state elicited testimony from every eyewitness to
the robbery, none of whom were able to definitively state that the
object was unquestionably a firearm. At the close of the last eyewitness,
the issue was still very much in doubt. However, by allowing the
inherently inflammatory character evidence to be admitted, the jury
was in effect asked to convict Mr. Lavoie of using a firearm in the Papa
14
John’s robbery because a witness testified assuredly that she thought
he had used a firearm some seven weeks prior. The jury was allowed
to hear that Mr. Lavoie had committed a prior robbery, and that he was
therefore a common criminal. The jury deliberated a little more than 45
minutes before coming back with the guilty verdict.5 An objective
reading of the eyewitness testimony from the charged offense does not
support the paucity of time the jury spent on deliberations in this case.
The reasonable explanation is that the extraneous-offense evidence
served to settle the question in the minds of the jury the inquiry of
whether the object was a real gun or not. At the very least, the court of
appeals should have been unsure whether the error affected the
outcome here. See O’Neal, 513 U.S. at 435, 115 S.Ct. at 994; Webb, 36
S.W.3d at 182–83. The trial court’s error was harmful. Kotteakos, 328 U.S.
at 765, 66 S. Ct. at 1248, Motilla, 78 S.W.3d at 355–58; Johnson, 43 S.W.3d
at 4.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner
respectfully prays that this Court grant discretionary review and allow
5
Compare VI R.R. 27 (jury deliberations begin at 10:02) and C.R. 151 (jury
verdict form filed at 10:50).
15
each party to fully brief and argue the issues before the Court of
Criminal Appeals, and that upon reviewing the judgment entered
below, that this Court reverse the opinion of the Second Court of
Appeals and reverse the conviction entered below.
Respectfully submitted,
/s/Kimberley Campbell
Kimberley Campbell
TBN: 03712020
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorney for Petitioner
Micheal Paul Lavoie
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
3,386.
/s/Kimberley Campbell
Kimberley Campbell
16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 1st day
of September , 2015.
/s/Kimberley Campbell
Kimberley Campbell
17
APPENDIX
1. Opinion of the Second Court of Appeals.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00333-CR
MICHAEL PAUL LAVOIE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1251622D
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MEMORANDUM OPINION 1
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In two points, appellant Michael Paul Lavoie appeals his convictions for
four counts of aggravated robbery with a deadly weapon. 2 Appellant asserts that
the trial court erred by admitting evidence of an extraneous offense and by
excluding testimony from his proffered expert witness. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
Background Facts
One evening in the winter of 2011, after standing near a Papa John’s
restaurant while talking on his phone, appellant walked into the restaurant,
entered an area behind the register reserved for employees, and ordered the
employees to lie face down on the floor in the back of the restaurant. In his right
hand, appellant carried what looked like a gun. 3 While keeping the gun at his
side, appellant stole money from a cash register, took the employees’ wallets,
told an employee to open the restaurant’s safe, 4 instructed the employees to
remain on the floor for ten minutes, and left the restaurant. Disregarding
appellant’s instruction, the restaurant’s manager stood up and called the police.
Appellant later told the police about his involvement in the incident.
A grand jury indicted appellant with five counts of aggravated robbery with
a deadly weapon. Appellant’s indictment included a paragraph alleging that he
had been previously convicted of aggravated robbery with a deadly weapon.
Appellant filed several pretrial motions, including a motion seeking the exclusion
of evidence of extraneous offenses; chose the trial court to assess his
punishment if he was convicted; and pled not guilty to the first four counts of the
indictment. The State waived the fifth count.
3
Two employees testified that they had believed the gun was real because
unlike toy guns, it did not have an orange tip on the barrel.
4
The employee could not do so because the safe had a time-delay feature.
2
After receiving the parties’ evidence and arguments, a jury found appellant
guilty of all four counts of aggravated robbery with a deadly weapon. The trial
court heard evidence concerning appellant’s punishment 5 and sentenced him to
confinement for life for each count with the sentences running concurrently.
Appellant brought this appeal.
Admission of Extraneous-Offense Testimony
In appellant’s first point, he argues that the trial court erred by admitting
evidence of an extraneous offense. Specifically, he argues that this evidence
was inadmissible under rules of evidence 403 and 404(b). See Tex. R. Evid.
403, 404(b).
We review a trial court’s decision to admit evidence for an abuse of
discretion. Whitemon v. State, 460 S.W.3d 170, 179 (Tex. App.—Fort Worth
2015, pet. ref’d). A trial court abuses its discretion in admitting evidence if that
decision falls outside the wide zone of reasonable disagreement. Id. We will
uphold an evidentiary ruling on appeal if it is correct on any theory of law that
finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.
App.), cert. denied, 549 U.S. 1024 (2006); Carrasco v. State, 154 S.W.3d 127,
129 (Tex. Crim. App. 2005).
At trial, appellant conceded that he had been involved in the incident at
Papa John’s, but he contended that he had not used a deadly weapon. Rather,
5
Appellant pled true to the repeat offender paragraph of the indictment.
3
appellant argued that he had used only a non-operative BB gun. He questioned
the State’s principal witnesses—the restaurant’s employees—about whether they
were certain that they had seen a real gun.
Outside the presence of the jury, the State proposed to present testimony
from the victim of a robbery committed by appellant at another restaurant less
than two months before the incident at Papa John’s. The State represented that
this witness would testify that appellant used a real gun in that robbery. The
State argued that this witness’s testimony, although admittedly concerning an
extraneous offense, was admissible to rebut appellant’s defensive theory that the
gun used in the Papa John’s incident was not real. Appellant objected to the
testimony on the ground that he had not created any issue concerning identity or
modus operandi and that the testimony would only “bolster testimony from other
witnesses who clearly indicated that they didn’t feel this was a real weapon.” The
trial court overruled appellant’s objection and admitted the testimony.
In front of the jury, the witness testified that one evening in December
2010, after waiting in a restaurant while talking on a cell phone, appellant placed
a gun against her back, led her to an office area, ordered her and other
employees to sit on the floor, told one of the employees to open a safe, and
eventually left after telling the employees to not get up for five minutes. The
witness testified that she had been married to a gunsmith, that she had helped
her husband repair guns, that she had been around guns all of her life, and that
the gun appellant used in that offense was real. The witness explained that she
4
could discern that the gun was real because it shined when appellant carried it, it
had a large barrel, it had a clip, it felt heavy when appellant placed it against her
back, and it “wasn’t plastic looking.”
Rule 403 complaint
Under rule of evidence 403, a trial court may “exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Tex. R. Evid. 403. Appellant complains that the evidence concerning
the previous robbery that he committed was inadmissible because it was unfairly
prejudicial under rule 403. The State argues that we need not address the
substance of appellant’s rule 403 complaint because he did not make a rule 403
objection at trial and therefore did not preserve such a complaint for appeal.
To preserve a complaint for our 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 of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1)(A); Everitt v. State, 407 S.W.3d
259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 305
(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled
on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. A reviewing court should not
address the merits of a point that has not been preserved for appeal. Ford v.
State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
5
At trial, appellant did not make an objection to the extraneous-offense
evidence on the basis that it was unfairly prejudicial, nor did he explicitly cite rule
403 as a ground for his objection. 6 Thus, we hold that appellant did not preserve
the rule 403 objection for our review, and we overrule that part of his first point.
See Tex. R. App. P. 33.1(a)(1); Everitt, 407 S.W.3d at 262–63; see also Hailey v.
State, 413 S.W.3d 457, 465 n.2 (Tex. App.—Fort Worth 2012, pet. ref’d)
(“Appellant did not object at trial that the evidence was substantially more
prejudicial than probative. Thus, to the extent he attempts to raise a rule 403
complaint on appeal, he failed to preserve that portion of his complaint for
appellate review.” (citation omitted)); Reyna v. State, 99 S.W.3d 344, 348 (Tex.
App.—Fort Worth 2003, pet. ref’d) (holding that a general objection did not
preserve a rule 403 complaint for appellate review).
6
In appellant’s pretrial motion in limine, he contended that the trial court
should determine, with regard to any extraneous offense, whether the “probative
value of the evidence is outweighed by [the] danger of unfair prejudice.” But a
motion in limine is “a preliminary matter and normally preserves nothing for
appellate review. For error to be preserved with regard to the subject of a motion
in limine, an objection must be made at the time the subject is raised during trial.”
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (footnote omitted),
cert. denied, 555 U.S. 1105 (2009); see Swilley v. State, No. 02-13-00569-CR,
2015 WL 3637850, at *5 (Tex. App.—Fort Worth June 11, 2015, no pet.)
(“[G]enerally the granting or denial of a motion in limine is a preliminary ruling
only and preserves nothing for appellate review.”); Harnett v. State, 38 S.W.3d
650, 655 (Tex. App.—Austin 2000, pet. ref’d) (“It is axiomatic that motions in
limine do not preserve error.”).
6
Rule 404(b) objection
Under rule 404(b), evidence of crimes or wrongs committed by the
defendant that are extraneous to the charges at issue are not admissible to
“prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Tex. R. Evid. 404(b)(1);
Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (“The general rule
is that the defendant is to be tried only for the offense charged, not for any other
crimes or for being a criminal generally.”), cert. denied, 558 U.S. 828 (2009). But
such evidence may be admissible for other purposes, including “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Tex. R. Evid. 404(b)(2); see Segundo, 270 S.W.3d at 87
(explaining that “evidence of extraneous acts of misconduct may be admissible if
. . . the uncharged act is relevant to a material issue in the case”); Powell v.
State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (explaining that evidence of an
extraneous offense may be admissible when it is relevant to a “noncharacter
conformity fact of consequence in the case, such as rebutting a defensive
theory”). Appellant contends that testimony about the prior robbery was
inadmissible as “character conformity evidence” under rule 404(b).
The State argues that appellant failed to preserve his rule 404(b) argument
for appeal. But considering the context of the record, in which the State
conceded that it was asking to present evidence of an extraneous offense, we
conclude that appellant preserved the rule 404(b) complaint when he objected to
7
the testimony described above on the grounds that no issue of identity or modus
operandi was in question and that the State’s offer of the testimony was simply
an attempt to bolster existing evidence. See Tex. R. App. P. 33.1(a)(1)(A); Tex.
R. Evid. 404(b)(2) (explaining that evidence of an extraneous offense “may be
admissible [to show] . . . identity” (emphasis added)); Taylor v. State, 939 S.W.2d
148, 155 (Tex. Crim. App. 1996) (“Where the record makes clear that the trial
court understood an objection and its legal basis, a trial court’s ruling on that
objection will be preserved for appeal, despite an appellant’s failure to clearly
articulate the objection.”); see also Casey v. State, 215 S.W.3d 870, 881 (Tex.
Crim. App. 2007) (acknowledging that there is a “modus operandi theory of
admissibility under Rule 404(b)”); Page v. State, 137 S.W.3d 75, 78 (Tex. Crim.
App. 2004) (explaining that if the issue of a defendant’s identity is raised, rule
404(b) permits introduction of extraneous offense evidence relevant to the
identity issue).
We cannot conclude, however, that the trial court abused its discretion by
admitting the evidence of the prior robbery over appellant’s rule 404(b) objection.
Evidence of an extraneous offense may be admissible to rebut a defensive
theory on an elemental fact. Powell, 63 S.W.3d at 438. In Powell, during a trial
for indecency with a child, the State presented evidence that Powell had sexually
molested the victim—a young female—on numerous occasions in his living room
while other people were sleeping in the room. 63 S.W.3d at 436. Powell
contended in his opening statement and through cross-examination of the victim
8
that he could not have had the opportunity to molest the victim with others
present in the same room. Id. at 436–37. In response, the State offered
extraneous offense evidence from several witnesses who testified that appellant
had molested them under circumstances similar to those the victim had
described. Id. at 437. The court of criminal appeals held that the trial court had
not abused its discretion by admitting evidence of the extraneous crimes
because the evidence rebutted Powell’s defensive theory “that he had no
opportunity to commit the offense because he was never alone” with the victim.
Id. at 438.
Analogous to Powell, Texas courts have held that when a defendant
claims that he did not use a real gun while committing an offense, the State may
present evidence that the defendant used a real gun in a similar offense or
previously had access to a real gun. See Owens v. State, No. 14-11-01059-CR,
2012 WL 3292962, at *1–2 (Tex. App.—Houston [14th Dist.] Aug. 14, 2012, pet.
ref’d) (mem. op., not designated for publication) (concluding that when the
defendant’s theories were that he had not used a real firearm during a robbery
but only a BB gun and that he could not have had access to a real gun because
he was a felon and barred from buying one, the State could present evidence
that appellant had used a real gun in a similar robbery two years earlier); Diaz v.
State, No. 01-96-01070-CR, 1998 WL 93038, at *1, *3–4 (Tex. App.—Houston
[1st Dist.] Mar. 5, 1998, pet. ref’d) (not designated for publication) (concluding
that in an aggravated robbery case, testimony that the defendant displayed a real
9
gun in a similar robbery weeks after the charged offense tended to “rebut the
defensive theory that the gun was not real and [tended] to prove a material fact in
the State’s case”); see also Nevarez v. State, 503 S.W.2d 767, 769 (Tex. Crim.
App. 1974) (concluding that when a defendant was charged with unlawfully
carrying a gun in a lounge where alcohol was served and theorized that the gun
was not real, the State was permitted to introduce evidence that shortly after he
left the lounge, “a shot was heard and bullet holes were found in the window and
the wall of the lounge”).
Here, the trial court could have reasonably ruled that evidence of the prior,
remarkably similar robbery in which appellant used a real gun was admissible to
rebut his defensive theory that he used a non-operative BB gun during the
robbery at Papa John’s. Whether the gun was real was, of course, material and
elemental because the State had to prove that appellant used a deadly weapon
to obtain a conviction for aggravated robbery. 7 See Tex. Penal Code Ann.
§ 29.03(a)(2).
Under the authority cited above, it is at least subject to reasonable
disagreement whether the testimony about appellant’s extraneous offense was
admissible for the noncharacter-conformity purpose of rebutting appellant’s
contention that he used a fake gun during the incident at Papa John’s. See
7
Appellant states on appeal that the “only contested issue in [his] trial was
whether the object carried by [appellant] in the robbery was really a firearm or a
toy BB gun.”
10
Powell, 63 S.W.3d at 438; Nevarez, 503 S.W.2d at 769; Owens, 2012 WL
3292962, at *1–2; see also De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.
App. 2009) (explaining that rule 404(b) “excludes only that evidence that is
offered (or will be used) solely for the purpose of proving bad character and
hence conduct in conformity with that bad character” (emphasis added)). Thus,
we hold that the trial court did not abuse its discretion by admitting the testimony,
and we overrule the remainder of appellant’s first point. See Whitemon, 460
S.W.3d at 179.
Exclusion of Expert Testimony
In his second point, appellant complains that the trial court abused its
discretion by not allowing his proffered expert witness, Kristian Jara, to testify.
After the State rested, outside of the jury’s presence, appellant called Jara, who
testified that he is a private security sales consultant and a private investigator,
that he was an officer in the Air Force for several years, that he had received
basic police training and weapons training (including shooting and cleaning
them), that he has a concealed handgun license, that he owns three firearms,
that he had “much training in the care and appearance of weapons,” that he
could describe the difference between a “shiny weapon and a matte weapon,”
and that he could also discern the difference between a real gun and a fake gun.
On cross-examination by the State outside of the jury’s presence, Jara conceded
that he had not witnessed the incident at Papa John’s, did not know appellant,
and had not examined any firearms related to appellant’s case. After hearing
11
Jara’s testimony, the trial court ruled that he would not be able to testify as an
expert witness, and appellant rested as to guilt-innocence without calling any
witnesses.
Although appellant complains on appeal that the trial court erred by
excluding Jara’s testimony, we conclude that appellant did not preserve this
complaint for our review. To preserve error related to the exclusion of evidence,
the substance of the excluded evidence must be shown by an offer of proof
unless it is apparent from the context of the questions asked. Tex. R. App. P.
33.2; Tex. R. Evid. 103(a)(2); Bundy v. State, 280 S.W.3d 425, 428 (Tex. App.—
Fort Worth 2009, pet. ref’d). Error may be preserved by an offer of proof in
question and answer form or in the form of a concise statement by counsel. Tex.
R. Evid. 103(a)(2); Bundy, 280 S.W.3d at 429. Counsel’s concise statement
must include a summary of the evidence offered. Bundy, 280 S.W.3d at 429.
Error is not preserved if the offer of proof is inadequate. Id.; see also Mays v.
State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (holding that error was not
preserved when appellant failed to proffer, with “some degree of specificity,” the
substantive evidence he intended to present).
Here, appellant did not establish, through questions of Jara or through any
statement by counsel, the content of Jara’s proposed testimony. Instead,
appellant elicited evidence only as to Jara’s qualifications and the general topics
(but not the specific opinions) of his proposed expert testimony, which is
insufficient to preserve error. See Tex. R. Evid. 103(a)(2); Bundy, 280 S.W.3d at
12
429; see also Mays, 285 S.W.3d at 890; Solley v. State, No. 14-07-00803-CR,
2009 WL 396268, at *3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, pet.
ref’d) (mem. op., not designated for publication) (“We hold that counsel’s
identification of the mere topics of the expert’s likely testimony does not qualify
as a ‘reasonably specific summary’ of the evidence.”). We are not at liberty to
judge the propriety or the potential harm of the trial court’s evidentiary ruling
without knowing the content of the potential testimony. See Stewart v. State, 686
S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); see
also Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (“The primary
purpose of the offer of proof is to enable an appellate court to determine whether
the exclusion was erroneous and harmful.”); Dozal v. State, No. 02-13-00478-
CR, 2015 WL 120491, at *3 (Tex. App.—Fort Worth Jan. 8, 2015, no pet.) (mem.
op., not designated for publication) (“[T]he record does not disclose what Martin’s
answer to appellant’s question about her previous confinement would have been,
nor does the context of the question disclose the answer. Thus, we conclude
that appellant failed to preserve error as to this point, and we overrule it.”);
Alberts v. State, 302 S.W.3d 495, 509–10 (Tex. App.—Texarkana 2009, no pet.)
(holding that error was not preserved when the defendant elicited testimony
about an expert’s qualifications but did not elicit testimony about the substance of
the expert’s opinion). Because we conclude that appellant failed to preserve a
complaint about the exclusion of Jara’s testimony by not establishing what the
substance of that testimony would have been, we overrule his second point.
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Conclusion
Having overruled both of appellant’s points, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J. GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 28, 2015
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