Thompson, Al v. State ( 2004 )

Affirmed and Memorandum Opinion filed July 29, 2004

Affirmed and Memorandum Opinion filed July 29, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00273-CR

NO. 14-03-00274-CR

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AL THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 915,676 & 915,677

M E M O R A N D U M  O P I N I O N

A jury found appellant Al Thompson guilty of burglary of a habitation and aggravated assault and assessed punishment at thirty-five years= confinement and five years= confinement, respectively.  Appellant raises six issues on appeal.  We affirm.

Factual and Procedural Background

On June 19, 2002, appellant and his long-time friend, Jerry Cooper, spent the evening together consuming drugs, including ecstacy, marijuana, and PCP. In the early morning hours of June 20th, Cooper was driving appellant=s truck, when appellant, who was riding as a passenger, started acting paranoid and thought someone was trying to Aget@ them.  While Cooper was driving, appellant shot him in the right leg, and when Cooper looked over at him, appellant was pointing the gun at Cooper=s chest. Appellant pulled the trigger again, but the gun jammed.  Cooper then unlocked the truck door and jumped from the moving vehicle.  Cooper believed appellant=s unusual behavior was caused by the drugs appellant had ingested earlier that evening.

Shortly thereafter, at approximately 1:30 a.m., Michael Sotiropoulos and his fiancee, Tami Taylor, heard someone screaming for help outside their second floor apartment.  They looked outside a window and saw appellant running back and forth on a nearby roof, waiving a gun and yelling for help.  Tami called 911 while Michael retrieved his gun from a nearby basket. Appellant then jumped onto their balcony and broke into their apartment through the french doors located on the balcony.  When appellant entered the apartment, he pointed his gun at Michael, continued to ask for help, and stated that he needed the police.

When a police officer arrived, he pointed a spotlight toward the balcony where appellant, Michael, and Tami were standing.  Michael pointed his gun at appellant and asked him to leave. Appellant continued asking to call the police, so Michael directed appellant=s attention to the police vehicle located nearby.  Appellant then took the gun from Michael=s hand and threw it on the floor.  Tami picked up the gun from the floor and told appellant to get away from Michael.  Appellant lunged for Tami, grabbed her, and took the gun out of her hand.  At the same time, Michael jumped on appellant to try to prevent Tami from being injured.  Thereafter, a struggle ensued between appellant and Michael, which ended when appellant shot Michael in the chest at point-blank range.  Tami heard additional shots, and believing Michael was dead, she ran from the apartment.  Appellant dragged Michael into the bathroom and began barricading the bedroom doors with furniture.  The police then determined a hostage situation had developed and contacted the Houston Police Department SWAT Team.  Appellant eventually surrendered at approximately 6:30 a.m.

The jury found appellant guilty of burglary of a habitation and aggravated assault.  After appellant pleaded true to a prior conviction, the jury assessed punishment at thirty-five years= confinement for the burglary offense and five years= confinement for the aggravated assault offense. Appellant raises six issues on appeal, claiming the trial court erred by (1) admitting portions of Michael Sotiropolous=s testimony because it constituted victim impact evidence; (2) admitting empty medication bottles because they were also victim impact evidence; (3) allowing a video camera to record portions of the trial; (4) failing to include a jury instruction on necessity; (5) failing to hold a hearing on appellant=s motion for new trial; and (6) denying appellant=s motion for new trial based on juror misconduct. 

Discussion

I.        Victim Impact Evidence

In his first two issues, appellant contends the trial court erroneously admitted victim impact evidence.  Specifically, appellant challenges (1) Michael Sotiropolous=s testimony  concerning his physical and mental state of mind after the incident and (2) the admission of empty medication bottles.  Appellant, however, failed to properly preserve error on each of the challenged statements and on the admission of the empty bottles.  The relevant trial testimony is as follows:^[1]

Prosecutor:  When you got out of the hospital, where did you go?

Michael:       Friend=s house.  I was afraid to go back to the house.

Prosecutor:  What were you afraid Of [sic]?

Defense Counsel:   Objection, Your Honor. 

Michael:       People.

Defense Counsel:   Relevancy of this after this incident, unless there=s something that directly relates.

Court: Be specific in your questions.  Sustained.

*   *   *

Prosecutor:  How often do you think about what happened on June 20th, 2002?

Michael:       Every night, every day, every moment of my life.

Defense Counsel:   Objection, Your Honor.

Court: That=s overruled. However, move along, please.

Prosecutor:  Yes, sir. How often do you think about what happened on

June B

Michael:       Every moment.  Every time I have nightmares.  I can=t sleep at night.  I go see a psychotherapist.  I can=t do anything.  I take pills every two hours.  I can=t go to the bathroom.  I can=t do nothing.  I can=t live one moment.

*   *   *

Prosecutor:  How long are you going to have to stay on all those pills?

Michael:       Until I don=t have pain, until the pain stops.

Prosecutor:  Do you have any idea when that would be?

Michael:       I don=t know.  I guess [the] doctor told me within two to five years. Most likely I=m not going to be able to use the left two fingers again.

Appellant made only two objections during this testimony: relevancy and a general objection.  The trial court sustained appellant=s relevancy objection, and because appellant did not request any further relief, the trial court granted appellant all the relief he requested.  Thus, nothing is presented for review.  See Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (stating appellant must obtain adverse ruling to present complaint on appeal); McCoy v. State, 10 S.W.3d 50, 55 (Tex. App.CAmarillo 1999, no pet.) (holding that because appellant failed to request instruction to disregard after objection was sustained, Aappellant obtained all the relief he requested and he may not now complain on appeal@). 

Further, appellant=s general objection was insufficient to put the trial court on notice that he was objecting to alleged improper victim impact evidence.  Tex. R. App. P. 33.1(a)(1) (providing objection must state legal basis, Aunless the specific grounds are apparent from the context@).  After appellant=s initial relevancy objection, the prosecutor questioned Michael regarding identification of appellant and whether he gave appellant permission to enter the apartment.  The prosecutor then asked Michael how often he thought about the incident, to which appellant=s counsel made a general objection.  Because appellant did not state the grounds for the general objection, and the grounds for the objection were not apparent from the context of the testimony, he has waived any alleged error on review.  Id.

Regarding admission of the empty medication bottles, appellant objected on the grounds of Texas Rules of Evidence 401, 402 and 403 arguing that although Athere maybe [sic] some relevancy here, it seems to be superfluous, unnecessary, confusing to the jury and prejudicial without being really probative.@  Appellant, however, failed to object on the basis of improper victim impact evidence; therefore, the alleged error, if any, is waived.  Tex. R. App. P. 33.1(a)(1)(A); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

Accordingly, we overrule appellant=s first and second issues. 

II.       Video Camera

In his third issue, appellant contends the trial court erred by allowing a video camera in the courtroom during a portion of the trial.  Appellant claims the camera was so intrusive that it violated his due process rights and right to a fair trial.  In general, trial courts have broad and plenary power to regulate trials.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003); Ex parte Jacobs, 664 S.W.2d 360, 363 (Tex. Crim. App. 1984).  The court has all powers necessary for the exercise of its jurisdiction and is required to conduct the proceedings in an orderly and expeditious manner and to control the proceedings so that justice is done. Tex. Gov=t Code Ann. ' 21.001(a), (b) (Vernon 2004).  Thus, absent a constitutional provision, statute, or rule to the contrary, the trial court has the power to control the procedural aspects of a case.  Poe, 98 S.W.3d at 199 (stating that in absence of statute specifically prohibiting videotaping of jury deliberations, it would be difficult to decide whether trial court abused its discretion); Graham v. State, 96 S.W.3d 658, 660 (Tex. App.CTexarkana 2003, pet. ref=d).

Appellant cites Estes v. Texas, 381 U.S. 532 (1965), to support his position that the trial court erred in allowing the camera in the courtroom over objection. Estes, however, is easily distinguishable.  In Estes, the trial was widely publicized, and the media coverage was very extensive.  Id. at 535B37.  The court referred to the intrusion of the media as a Abombardment of the community with the sights and sounds of a two-day hearing during which the original jury panel, the petitioner, the lawyers and the judge were highly publicized.@  Id. at 538.  The court concluded that because of the notoriety and omnipresence of the media, appellant=s due process rights were violated.  Id. at 535B38, 551B52. 

In this case, the trial court allowed a camera during the third day of trial, which consisted of the remaining testimony of Tami Taylor, closing arguments, and the jury rendering its verdict.^[2]  Appellant objected, arguing the camera was intrusive and might affect the jury and the other witnesses.  The trial court overruled appellant=s objection.  On appellant=s urging, the court instructed the jury that the film crew was from Bulgaria and the camera was present to film portions of the trial for a documentary on jurisprudence throughout the world.  The court further instructed the jury not to consider the fact that any portion of the film might or might not be used for any purpose.

Here, the trial court allowed one single camera to film a small portion of the trial for a documentary film.  There is nothing in the record to suggest the societal pressures and media frenzy present in Estes existed in this case.  See Duffy v. State, 567 S.W.2d 197, 201B03 (Tex. Crim. App. 1978) (holding an accidental filming of a few jurors for a ten to fifteen second time period is not of sufficient magnitude to create presumption of prejudice to appellant, thus appellant was required to show harm) . Additionally, there is no evidence in the record appellant was harmed or prejudiced in any way by the camera=s presence.  See id.  Accordingly, we conclude the trial court did not abuse its discretion by allowing a single camera in the courtroom to film a small portion of the trial.  We overrule appellant=s third issue. 

III.      Jury Instruction on Necessity

In his fourth issue on appeal, appellant contends the trial court erred in failing to submit a jury instruction on the defense of necessity.  In his brief, appellant refers to the necessity defense only in the context of the burglary charge; therefore, we will limit our review to whether the trial court erred in failing to instruct the jury on the defense of necessity with respect only to the burglary charge.  Tex. R. App. P. 38.1(e).  

Generally, a defendant is entitled to an instruction on every defensive issue raised by the evidence, as long as such an instruction is properly requested.  Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).    We review the evidence offered in the light most favorable to the defense to determine whether the evidence raises a defensive issue.  Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.CFort Worth 2001, pet. ref=d); Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.CAustin 2002, pet. ref=d).  The evidence may be from any source and may be either weak, strong, unimpeached, contradicted, or unbelievable.  Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.1993); Ford v. State, 112 S.W.3d 788, 793 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Thus, if the defensive issue is raised from any source, and the defendant properly requests an instruction on that issue, the trial court=s refusal to submit the issue constitutes an abuse of discretion.  Darty v. State, 994 S.W.2d 215, 218 (Tex. App.CSan Antonio 1999, pet. ref=d).  However, if the evidence fails to raise every element of a defensive issue, the trial court is not required to submit the requested instruction.  Muniz, 851 S.W.2d at 254; Stefanoff, 78 S.W.3d at 500.

In order to raise the defense of necessity, the defendant must first admit he committed the charged offense and then offer the defense as a justification for his illegal conduct.  Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999); Ford, 112 S.W.3d at 793; Auston v. State, 892 S.W.2d 141, 145 (Tex. App.CHouston [14th Dist.] 1994, no pet.).  In this case, appellant was required to admit he entered a habitation without the effective consent of the owner, Michael Sotiropoulos, and committed or attempted to commit the felony offense of aggravated assault.  See Tex. Pen. Code Ann. ' 30.02 (Vernon 2003).  Appellant argues that A[b]y cross-examining these witnesses about the manner of Appellant making an entry into the apartment, and not contesting that entry, trial counsel was admitting that Appellant had made the entry.@  Appellant, however, failed to specifically admit each element of the charge of burglary of a habitation; therefore, the trial court did not abuse its discretion in omitting an instruction on necessity.  See Young, 991 S.W.2d at 839; Auston, 892 S.W.2d at 145 (holding trial court properly omitted necessity instruction because A[a]ppellant did not testify, nor present any such evidence as to his state of mind@).  We overrule appellant=s fourth issue.

IV.      Motion for New Trial

In his final two points of error, appellant argues the trial court abused its discretion in failing to hold a hearing on the motion for new trial and in denying the motion.  The record shows the trial court held a hearing on appellant=s motion for new trial on May 14, 2003; however, the trial court denied appellant=s request to present live testimony at that hearing. Since appellant received a hearing on his motion for new trial, we presume his point of error alleges the trial court erred in not allowing appellant to present live testimony.  Tex. R. App. P. 38.1(e). 

Texas Rule of Appellate Procedure 21.7, which governs the type of evidence allowed at a hearing on a motion for new trial, provides, AThe court may receive evidence by affidavit or otherwise.@ The case law cited by appellant as support for his position is premised on the fact that appellant was denied an evidentiary hearing; however, that is not the case here.  The trial court held a hearing on appellant=s motion for new trial and allowed the parties to submit evidence by affidavits only, which is specifically allowed by Rule 21.7.  Accordingly, we hold the trial court did not abuse its discretion by not allowing appellant to present live testimony during the hearing on his motion for new trial.  See McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985); Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.CAustin 2000, pet. ref=d).   

We must next determine whether the trial court abused its discretion in denying the motion for new trial.  During deliberations on the punishment issue, a juror, Murl Murphy, telephoned his wife on a cell phone while at the courthouse.  The relevant portion of Juror Murphy=s affidavit is as follows:

On Friday, February 28, 2003, I spoke with my wife, Rose Murphy, on a cell phone while at the courthouse.  I asked her to change travel plans that we had made for the next Monday, March 3, 2003. In response to her questioning if it was really necessary to make the travel changes, I told her that because one juror was holding out for 20 years and most of the rest of us wanted more time, I did not see any way the jury could reach a decision by the end of the day. That was my sole statement about the case itself, and my wife did not question me about that statement.  The conversation was solely about re-arranging our schedule to accommodate my jury service.

At no point during the trial did I discuss the facts of the case with my wife or with anyone else.  At no point during the trial did I discuss any of the issues of the case with my wife or anyone else.  At no point during the trial did my wife comment, offer or suggest any opinion as to the outcome of the trial or what punishment might be appropriate.  It would be inaccurate to say that my wife and I Adiscussed@ the case or that my wife Aconversed with me@ about the case while the case was still pending.

In no way did this phone call or conversation influence my verdict in the case. My verdicts were based solely on the evidence and testimony that were presented during the trial.  I did not discuss this phone call with any of the other jurors. 

Appellant relies on Texas Rule of Appellate Procedure 21.3(f), which provides, AThe defendant must be granted a new trial . . . when a juror has talked with anyone about the case.@  Appellant argues this rule removes any discretion from the trial court and a new trial is automatic regardless of whether any harm resulted.  We disagree.

When a juror converses with an unauthorized person about the case, injury to the defendant is presumed and a new trial may be warranted; however, the State may rebut the presumption of harm.  Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991).  In order to rebut the presumption, the State is required to show the accused was not injured or prejudiced.  Stults v. State, 23 S.W.3d 198, 206 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Reversal may not be required if the juror testifies that he did not tell any other members of the jury about the statement and the statement would not influence the juror in reaching a verdict. Ites v. State, 923 S.W.2d 675, 77B78 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).

Here, Juror Murphy testified by affidavit that the telephone call to his wife concerned rearranging travel plans for the following Monday.  He stated his wife did not make any comments and did not question him about the statement he made concerning a juror holding out for twenty years.  Additionally, Murphy stated in his affidavit that he did not discuss the case with anyone and his wife never commented, offered or suggested any opinion as to the outcome of the trial or what punishment was appropriate.  Murphy=s affidavit also states that the phone call did not influence his verdict, that his verdict was his own, and that he did not discuss the phone call with any other members of the jury. 

The State also presented an affidavit of Rose Murphy, Juror Murphy=s wife, which attested to the same facts concerning the telephone conversation. She stated the conversation was solely about re-arranging their schedules to accommodate her husband=s  jury service, and, in response to her questioning about whether it was really necessary, her husband responded that Abecause one juror was holding out for 20 years and he and others wanted more time, he did not see any way the jury could reach a decision by the end of the day.@  Mrs. Murphy also attested that she and her husband never discussed any of the facts or issues of the case and that she never offered any opinions or suggestions regarding the outcome.

          By these affidavits, the State rebutted the presumption of injury to appellant.  See Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App. 1992) (holding State rebutted presumption by presenting affidavits of all twelve jurors, which stated their individual verdicts were rendered solely on evidence presented and no one discussed the improper conduct); Robinson, 851 S.W.2d at 230 (holding State rebutted presumption of harm because juror testified statement from her sister would not have influenced her verdict and she did not tell the other jurors about the prejudicial statement). The affidavits established nothing prejudicial to appellant was said and the conversation between Juror Murphy and Mrs. Murphy did not influence Juror Murphy=s verdict in any way.  Additionally, the content of the statement was never relayed to the other jurors.  Because the State adequately rebutted the presumption of injury, we hold the trial court did not abuse its discretion in denying appellant=s motion for new trial.  Accordingly, we overrule appellant=s fifth and sixth issues.

Conclusion

Having overruled appellant=s six issues on appeal, we affirm the judgment of the trial court. 

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 29, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant specifically challenges the emphasized text on appeal.

^[2]  The reporter=s record for the third day of trial amounted to a total of thirty-eight pages, of which the jury was present for thirty-two.  In contrast, the jury was present for approximately 373 pages of trial proceedings before the camera was allowed in the courtroom.