Cedarrius Blake v. the State of Texas ( 2021 )

NO. 12-20-00078-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CEDARRIUS BLAKE, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Cedarrius Blake appeals his conviction for murder. In two issues, he argues that the trial
court abused its discretion by excluding his proffered expert opinion testimony that he did not pose
a substantial risk for engaging in future violent crimes and that he would likely have a favorable
response to rehabilitative programs. We affirm.
BACKGROUND
Appellant and the victim had a wavering romantic relationship for several years. 1 On
December 24, 2018, Appellant went to the victim’s residence and discovered her having sex with
another man. The couple argued and Appellant left. A short time later that day, Appellant met
with the victim to return his key to her home. At that time, the victim called Appellant by the
name of a different lover. Angered by this, Appellant shot the victim several times, and she died
as a result.
Appellant was arrested and indicted for murder. He pleaded “guilty” to the offense. During
the ensuing jury trial on punishment, Appellant attempted to offer expert opinion testimony from
psychologist Dr. Sydney Kroll. Outside the presence of the jury, Dr. Kroll opined that Appellant’s
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Appellant was fifteen years old at the time he began his relationship with the victim, who was twenty-three
years old.
risk for committing future violent crimes was low and that he would have a favorable response to
rehabilitative programs. However, the trial court excluded this testimony. The jury sentenced
Appellant to seventy years of imprisonment. This appeal followed.
EXPERT TESTIMONY
In Appellant’s first and second issues, he contends that the trial court abused its discretion
in excluding Dr. Kroll’s testimony that Appellant did not pose a substantial risk for engaging in
future violent crimes and that he had a favorable response to rehabilitative programs. Because
these issues are related, we address them together.
Standard of Review
We review a trial court’s decision to exclude evidence for an abuse of discretion. See
Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); see also Davis v. State, 329
S.W.3d 798, 803 (Tex. Crim. App. 2010) (standard of review for punishment evidence is abuse of
discretion); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (admissibility of
expert testimony is reviewed under abuse of discretion standard). A trial court abuses its discretion
when it lies outside the zone of reasonable disagreement. See Hernandez, 390 S.W.3d at 324. An
appellate court misapplies the abuse of discretion standard by reversing a trial court’s admissibility
decision solely because it disagrees with it. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.
Crim. App. 2006). The trial court is usually in the best position to decide whether evidence should
be admitted or excluded. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
Applicable Law
Admissibility of evidence at the punishment phase of a non-capital trial is a function of
policy, not a question of logical relevance. Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim.
App. 2006). Relevancy in this context is a question of what is helpful to the jury in determining
the appropriate sentence for a particular defendant in a particular case. Id.In 1983, the Court of Criminal Appeals held that evidence of future dangerousness “does
not come within the gambit of permissible testimony at the punishment stage of a non-capital
case.” Reed v. State, 644 S.W.2d 479, 481 (Tex. Crim. App. 1983), superseded on other grounds
by, TEX. R. EVID. 702. However, that holding was based on a prior version of Texas Code of
Criminal Procedure Article 37.07. See Lopez v. State, No. 14-15-00668-CR, 2016 WL 7234478,
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at *4–5 (Tex. App.—Houston [14th Dist.] Dec. 13, 2016, no pet.) (mem. op., not designated for
publication) (discussing evolution of Texas law on this subject).
That statute has since been amended, which in relevant part, provides that during the
punishment phase of trial, “evidence may be offered by . . . the defendant as to any matter the court
deems relevant to sentencing, including but not limited to the prior criminal record of the
defendant, his general reputation, his character, an opinion regarding his character, [and] the
circumstances of the offense for which he is being tried . . . .” TEX. CODE CRIM. PROC. ANN. art.
37.07(a)(1) (West Supp. 2020).
Accordingly, Texas courts have more recently held that evidence of future dangerousness
and propensity for future criminal acts is not per se inadmissible during the punishment phase of
the trial. See, e.g., Peters v. State, 31 S.W.3d 704, 722–23 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d) (holding that trial court reversibly erred in excluding expert defense evidence
concerning recidivism rates and likelihood of reoffending); Lopez, 2016 WL 7234478, at *4–5.
Moreover, Texas courts have also held that such evidence is not necessarily objectionable based
on the mere fact that it embraces the ultimate issue for the jury. See e.g., Sanchez v. State, No.
01-14-00809-CR, 2015 WL 7455782, at *7 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet.
ref’d) (mem. op., not designated for publication) (holding expert testimony on suitability for
probation and recidivism was admissible sentencing evidence under Article 37.07 even though it
embraced ultimate issue of appropriate sentence for jury, and failure to object to it could not
support ineffective assistance of counsel claim); see also TEX. R. EVID. 704 (“An opinion is not
objectionable just because it embraces an ultimate issue.”). A particular defendant’s likely
response to rehabilitation efforts is a related issue that may be relevant to his sentencing that could
be admissible in appropriate cases. See TEX. CODE CRIM. PROC. ANN. art. 37.07(a)(1).
The erroneous exclusion of evidence offered under the rules of evidence generally
constitutes non-constitutional error and is reviewed under Texas Rule of Appellate Procedure Rule
44.2(b), unless the excluded evidence forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense. Walters v. State, 247 S.W.3d 204,
219 (Tex. Crim. App. 2007); Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Under
the latter scenario, exclusion of the evidence is not prejudicial if the defendant was not prevented
from presenting the substance of his defense to the jury. Potier, 68 S.W.3d at 665. When the error
is non-constitutional, Rule 44.2(b) requires that we disregard the error, defect, irregularity, or
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variance that does not affect the substantial rights of the defendant. TEX. R. APP. P. 44.2(b). An
error affects an accused’s substantial rights “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). We will not overturn a criminal conviction for non-constitutional error if we have
fair assurance that the error did not influence the jury or had but a slight effect. Barshaw v. State,
342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011).
Discussion
Neither party challenged Dr. Kroll’s qualifications as a psychologist or otherwise asserted
that her testimony was unreliable. In other words, the parties and trial court agreed that Dr. Kroll’s
testimony generally met the recognized standards for admissibility under Texas law. See Rhomer
v. State, 569 S.W.3d 664, 676 (Tex. Crim. App. 2019) (citing Nenno v. State, 970 S.W.2d 549,
560–61 (Tex. Crim. App. 1998); Kelly v. State, 824 S.W.2d 568, 572–73 (Tex. Crim. App. 1992)).
However, the parties dispute the permissible scope of her testimony. After a Daubert
hearing, the trial court issued a detailed ruling authorizing Dr. Kroll to testify, in relevant part, as
to recognized risk factors for engaging in future criminal behavior and violent crime as accepted
with the field of psychology, but not to directly opine as to Appellant’s likelihood of future
criminal conduct or particularized risk ratings. Similarly, the trial court authorized Dr. Kroll to
testify as to recognized factors to determine an offender’s responsiveness to rehabilitative
programs as accepted within the field of psychology, but not to opine on Appellant’s specific
likelihood of a favorable or unfavorable response to rehabilitative programs. Appellant argues that
the trial court abused its discretion when it ruled that Dr. Kroll could not opine on these matters.
In accordance with cases like Peters, Lopez, and Sanchez, it appears that such evidence is
admissible. See Peters, 31 S.W.3d at 722–23; Lopez, 2016 WL 7234478, at *4–5; Sanchez, 2015
WL 7455782, at *7.
However, assuming without deciding that this evidence should have been admitted,
Appellant was not harmed by the trial court’s decision to exclude it. That is, its exclusion did not
prevent Appellant from presenting his defensive issue and did not influence the jury or had at most
a slight effect. See Barshaw, 342 S.W.3d at 93-94; Potier, 68 S.W.3d at 665; King, 953 S.W.2d
at 271.
This Court, in evaluating similar evidence, has held that when the trial court admits the
underlying psychological testimony that would allow the jury to infer that the defendant was not
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likely to commit future violent acts, he is not harmed when the direct opinion on the matter is
excluded. See, e.g., Tiede v. State, No. 12-99-00182-CR, 2002 WL 31618281, at *8-9 (Tex.
App.—Tyler Nov. 20, 2002, pet. ref’d) (op. on remand, not designated for publication). In Tiede,
a well-known case involving the murder of a wealthy widower by a former funeral home director
who became her close companion and assistant, the defendant sought admission of a
psychologist’s testimony regarding his mental condition at the time of the offense and his risk of
future dangerousness. Id. The trial court allowed the psychologist to testify about clinical
disorders in general during the punishment phase but excluded his direct opinion about the
defendant’s future dangerousness. Id. at *9. The psychologist was permitted to discuss the
defendant’s mental state at the time he interviewed him, his relationship with the victim, and his
depression and dissociative episodes. Id. The psychologist also explained disassociation and how
a funeral director such as the defendant could easily develop it. Id. We held that “[t]he jury could
easily put all this evidence together and consider the possibility that Appellant was experiencing
dissociation in the nine months after the murder,” and that since evidence of his dissociation was
before the jury, he was not prevented from presenting his defensive issue on the matter. Id.
Similarly, the trial court in Tiede did not allow the psychologist’s testimony that the
defendant would not pose a future threat or danger to inmates, prison guards, or anyone else in the
prison system. Id. We held that the jury could look to numerous factors that could lead it to the
same conclusion that the defendant was not a future danger, such as the close, yet tumultuous
relationship he had with the deceased, his lack of a prior criminal record, and his character
witnesses testifying as to his good character and having a generous, kind, and compassionate
disposition. Id. Specifically, we held that “[t]aking all these facts together, the jury might have
believed this was a unique situation and that, in the absence of exact duplication of the situation,
[the defendant] would not necessarily commit dangerous acts in the future,” and that accordingly,
he was not prevented from presenting his defensive theory on the issue, nor was he harmed by its
exclusion. Id.
Like the testimony in Tiede, the trial court here admitted testimony that could have easily
allowed the jury to conclude that Appellant had a low risk of future violent criminal conduct and
that he would respond favorably to rehabilitation programs. During the punishment trial, the trial
court permitted Dr. Kroll and Tammy Axelson, a licensed master social worker who evaluated
Appellant and made a mitigation report, to testify extensively about their evaluations of Appellant,
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his mental health history and traumatic childhood experiences, and recognized psychological
conditions and factors to determine an offender’s risk in engaging in future criminal behavior and
likelihood of favorable response to rehabilitation. Although the trial court excluded the conclusion
as it specifically applied to Appellant, Dr. Kroll’s and Axelson’s testimony provided the jury with
substantial insight to let the jury make its own informed decision regarding these matters as applied
to Appellant in deciding an appropriate sentence to assess.
Dr. Kroll testified that she consulted Axelson in evaluating Appellant. Axelson testified
concerning the extensive social history she conducted on Appellant as part of her mitigation report.
Axelson testified that she provided Appellant with an Adverse Childhood Experiences test, which
revealed that Appellant suffered from numerous traumatic childhood events. She testified that
such experiences are associated with attachment problems, criminality, mental health delays, and
substance abuse. However, Axelson testified that among the one percent of children exposed to
the severest forms of violence, eighty percent do not grow up to be violent adults. Axelson
demonstrated that her evaluation was supported by objective data, including among other
evidence, her review of interviews of Appellant and his family members, a review of his school
records, criminal records, and his mother’s counseling records.
Dr. Kroll was permitted to testify that after evaluating Appellant, she diagnosed him with
persistent depressive disorder and cannabis use disorder, the latter of which was in full remission
due to his incarcerated status. She testified that she also evaluated Appellant for psychopathy, and
that he tested negative in that regard. She explained that psychopaths’ brains and neurology are
different from that of a normal person, and that psychopaths generally have a higher risk to commit
future crimes and would not likely respond favorably to rehabilitative efforts. Dr. Kroll explained
factors which suggest a non-psychopathic offender may respond to rehabilitation, such as the
ability to recognize the cause of his behavior, accept the consequences of his behavior, and
acknowledge his behavior and guilt, all of which Appellant exhibited. Dr. Kroll also testified how
an offender’s brain development could be stunted after various childhood traumatic events, like
the events experienced by Appellant, which could have hampered his impulse control. The jury
could have easily inferred that Appellant’s history did not necessarily determine his criminal
conduct as an adult, that this incident was an isolated event, and that he would respond favorably
to rehabilitation programs. Accordingly, Appellant has not shown that he suffered harm resulting
from the exclusion of Dr. Kroll’s conclusion, as applied directly to him, that he would be unlikely
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to commit future violent criminal acts or that he would respond favorably to rehabilitation efforts.
See id.
Appellant’s first and second issues are overruled.
DISPOSITION
Having overruled Appellant’s two issues, the judgment of the trial court is affirmed.
GREG NEELEY
Justice
Opinion delivered October 6, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 6, 2021
NO. 12-20-00078-CR
CEDARRIUS BLAKE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2018-0294)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and
the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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