Charles Jacquard Turner v. State ( 2014 )

Opinion issued August 7, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00301-CR
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CHARLES JACQUARD TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1306666
OPINION
A jury convicted appellant, Charles Jacquard Turner, of the first-degree
felony offense of aggravated robbery and assessed punishment at sixty-five years’
confinement. 1 In his sole issue, appellant contends that the trial court abused its
discretion in limiting appellant’s cross-examination of a State witness because the
State’s questioning opened the door to admission of the witness’s complete
criminal history.
We affirm.
Background
Celia Ochoa was at her apartment in South Houston during the late morning
hours of May 16, 2011, when she heard someone kicking her front door.
Frightened, she called her daughter-in-law, Marelyn, who lived in the apartment
above her. Marelyn opened her window and asked the man why he was kicking
Celia’s door. The man replied, “My bad, I’m in the wrong apartment,” and he then
left the area on a bicycle. Celia could not see the man’s face, but she did see the
man ride away from her apartment on a bicycle. A couple of weeks later, Marelyn
identified appellant in a photo-array as the man with whom she had spoken.
Maria Garza lived on Iowa Street in South Houston. Around 11:00 a.m. on
May 16, 2011, a man knocked very hard on Garza’s front door. Garza did not
answer the door, but she did see a man leave her house on a bicycle. Garza later
identified appellant in a photo-array as the man who had knocked on her front
door.
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
2
Around 11:45 a.m., Barbara Mixon returned to her house on Iowa Street and
discovered a bicycle blocking her driveway. When she saw the bicycle, she
assumed that one of the neighborhood children had placed it there before going to
play in the Mixons’ pool, but when Barbara checked her backyard, no children
were by the pool. Barbara went inside her house and found her husband, Thomas
Mixon, the complainant, lying severely injured on the floor. Numerous items had
been stolen from the Mixons’ house, including jewelry, part of Thomas’s coin
collection, papers, tools, firearms, and Thomas’s truck, which Barbara described as
a white Chevrolet with Korean War-related stickers on it. Thomas, who was
seventy-nine at the time of the incident, stayed in the hospital for ten days as a
result of his injuries.
The State announced its intention to call Raymond Cavitt, a “confidential
informant” in the case who encountered appellant after the incident at the Mixons’
house and subsequently contacted the police with information about the robbery.
After giving information to the police but before appellant’s trial, Cavitt had been
arrested on an unrelated charge, and he testified at appellant’s trial in his Harris
County Jail clothes. The trial court held a hearing outside the presence of the jury
to determine the admissibility of Cavitt’s prior criminal history. The State
informed the trial court that Cavitt had five prior convictions: a 2007 conviction
for forgery, a 2007 conviction for theft, a 1989 conviction for sexual assault, a
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federal weapons conviction from the early 1980s, and a 1976 conviction for
robbery. The parties agreed, and the trial court ruled, that only the two 2007
convictions and the 1989 conviction could be used to impeach Cavitt. Defense
counsel explicitly stated, “Judge, you’ve given me three and I can go along with
the Court’s ruling.” The trial court informed Cavitt that he would only be asked
about his three most recent convictions.
During direct-examination, Cavitt acknowledged that he currently resided in
the Harris County Jail, and he had the following exchange with the State:
[The State]: Now, in addition to your current predicament,
you’ve been in trouble with the law before; is that
right?
[Cavitt]: Yes, ma’am.
[The State]: Back in 2007, you were convicted of forgery?
[Cavitt]: Yes, ma’am.
[The State]: In 2007, you were also convicted of theft?
[Cavitt]: Yes, ma’am.
[The State]: And [then] in 1989, you were convicted of sexual
assault?
[Cavitt]: Yes, ma’am.
The State then resumed asking Cavitt about his encounter with appellant.
Before cross-examining Cavitt, defense counsel requested another hearing
outside the presence of the jury. Defense counsel stated:
My hearing was [the prosecutor] asked Mr. Cavitt at the beginning,
you’ve been in trouble with the law before; haven’t you, Mr. Cavitt?
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And then she named three occasions. The Defense claims that that
opens up the door to the other occasions when he’s been in trouble
with the law before, didn’t limit it to convictions. . . . It leaves a false
impression with the jury. We should be able to bring out those other
occasions he’s been in trouble with the law.
The trial court agreed with the State’s argument in response that the questions had
not opened the door to the remainder of Cavitt’s criminal history and stated, “I’m
not allowing you to go further than the three we already discussed.” Defense
counsel put on a bill of exceptions, in which Cavitt testified that he also had a
federal weapons conviction, a 1976 robbery conviction, a second forgery
conviction around 1990, and an unlawful carrying of a weapon charge.
Cavitt testified that appellant was an acquaintance of Cavitt’s home health
care provider. On the afternoon of May 16, 2011, Cavitt was standing outside his
provider’s house when appellant drove up in a white truck that Cavitt knew did not
belong to appellant. Appellant jumped out of the truck, which he left in the middle
of the street, yelling that he could barely see because someone had sprayed his face
with something and had beaten him up. After Cavitt helped appellant wash his
face, Cavitt parked the truck by his provider’s house. When he moved the truck,
Cavitt noticed tools, paperwork, jewelry, old coins, and firearms in the truck.
At his provider’s request, Cavitt moved the truck a second time to a nearby
parking lot. Cavitt later found out that the truck had been involved in a robbery,
and he contacted the police because his fingerprints were in the truck. Cavitt
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offered the police information regarding who owned the truck, and he assisted in
recovering some of the Mixons’ property. Cavitt overheard appellant telling a
friend that he had beaten up an old man.
The Harris County Institute of Forensic Sciences tested several items related
to this case for DNA samples, including the bicycle found in the Mixons’
driveway, a metal box taken from the Mixons’ house, a piece of a rifle found in
Thomas Mixon’s truck, and appellant’s tennis shoes. Diana Wolfshohl, the analyst
who performed the DNA tests, determined that appellant was a “major contributor”
of the DNA recovered from the right handle of the bicycle and that he could not be
excluded as a source of the DNA found on the left handle. Appellant also could
not be excluded as a source of DNA found on the metal box, on the front door of
the Mixons’ residence, and on the piece of a rifle found in Mixon’s truck.
Wolfshohl also tested a “red brown stain” on appellant’s tennis shoes, and the tests
revealed that Mixon was a “major contributor” of DNA found on the shoes.
The jury ultimately found appellant guilty of aggravated robbery and
assessed punishment at sixty-five years’ confinement. This appeal followed.
Admission of Witness’s Complete Criminal History
In his sole issue, appellant contends that the trial court erroneously limited
his cross examination of Cavitt and erroneously excluded evidence of Cavitt’s
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complete criminal history because the State opened the door to admission of this
evidence.
We review the trial court’s ruling on the exclusion of evidence for an abuse
of discretion. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007). We will uphold the trial court’s evidentiary ruling as long as it falls within
the zone of reasonable disagreement and is correct under any theory of law
applicable to the case. See id.
Generally, when attacking the credibility of a witness, the trial court may
admit evidence of prior criminal convictions only if the crime was a felony or
involved moral turpitude and the court determines that the probative value of the
conviction outweighs its prejudicial effect. See TEX. R. EVID. 609(a); Delk v. State,
855 S.W.2d 700, 704 (Tex. Crim. App. 1993). Rule 609 further provides that
evidence of a prior conviction is generally not admissible if more than ten years
have elapsed since the date of conviction or release from confinement, unless the
court determines that the probative value substantially outweighs the prejudicial
effect. TEX. R. EVID. 609(b). An exception to Rule 609 applies when the witness
“makes statements concerning his past conduct that suggest he has never been
arrested, charged, or convicted of any offense.” Delk, 855 S.W.2d at 704; see also
Winegarner, 235 S.W.3d at 790 (stating that exception also applies when witness
creates false impression regarding “the extent of his prior troubles with the law”).
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If the witness creates a false impression of law-abiding behavior, he “opens the
door” on his “otherwise irrelevant past criminal history and opposing counsel may
expose the falsehood.” Delk, 855 S.W.2d at 704; see also Hernandez v. State, 351
S.W.3d 156, 160 (Tex. App.—Texarkana 2011, pet. ref’d) (“In order for [the false
impression] exception to apply, however, the defense must unambiguously create a
false impression of law-abiding behavior, thereby permitting introduction of
evidence of past criminal history.”).
In analyzing the applicability of this exception, we consider the witness’s
statement in relation to the question asked, examine how broadly the question
could be interpreted, and analyze the relationship between the question asked and
the major substantive issues in the trial. Grant v. State, 247 S.W.3d 360, 368 (Tex.
App.—Austin 2008, pet. ref’d); Paita v. State, 125 S.W.3d 708, 712 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d) (noting that courts also consider whether the
witness’s answer was responsive to the question asked). If a witness voluntarily or
nonresponsively testifies concerning extraneous matters, the opposing side may
correct a false impression presented by the answer. Paita, 125 S.W.3d at 712
(citing Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d)). The scope of the impeachment must not exceed the issue that the
witness opened. Id. at 713 (citing Hammett v. State, 713 S.W.2d 102, 105–07
(Tex. Crim. App. 1986)).
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Here, before Cavitt testified, the trial court held a hearing outside the
presence of the jury to discuss Cavitt’s prior convictions. The State informed the
trial court that, in addition to a pending unrelated charge, Cavitt had five prior
convictions: a 2007 forgery conviction, a 2007 theft conviction, a 1989 sexual
assault conviction, a federal weapons conviction from the 1980s, and a 1976
robbery conviction. The trial court, the State, and defense counsel all agreed that
the only convictions admissible for impeachment were the 2007 forgery
conviction, the 2007 theft conviction, and the 1989 sexual assault conviction.
When discussing the two earliest convictions, defense counsel stated, “Judge,
you’ve given me three and I can go along with the Court’s ruling.” The trial court
then informed Cavitt that he would only be asked about the two 2007 convictions
and the 1989 conviction.
Cavitt testified in his jail clothes. The State acknowledged that fact in its
questioning but did not ask what he was charged with or any details about that
case. The State and Cavitt had the following exchange during direct examination:
[The State]: Now, in addition to your current predicament,
you’ve been in trouble with the law before; is that
right?
[Cavitt]: Yes, ma’am.
[The State]: Back in 2007, you were convicted of forgery?
[Cavitt]: Yes, ma’am.
[The State]: In 2007, you were also convicted of theft?
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[Cavitt]: Yes, ma’am.
[The State]: And [then] in 1989, you were convicted of sexual
assault?
[Cavitt]: Yes, ma’am.
Cavitt answered all of the State’s questions on this issue truthfully and
responsively. The State then resumed asking Cavitt about his encounter with
appellant after the robbery occurred.
Before beginning cross-examination of Cavitt, outside the presence of the
jury, defense counsel stated the following:
My hearing was [the State] asked Mr. Cavitt at the beginning, you’ve
been in trouble with the law before; haven’t you, Mr. Cavitt? And
then she named three occasions. The Defense claims that that opens
up the door to the other occasions when he’s been in trouble with the
law before, didn’t limit it to convictions. . . . It leaves a false
impression with the jury. We should be able to bring out those other
occasions he’s been in trouble with the law.
The trial court agreed with the State that the State’s question did not open the door.
The trial court stated, “I’m not allowing you to go further than the three we already
discussed.” The trial court overruled defense counsel’s objection, and defense
counsel perfected a bill of exception concerning the remainder of Cavitt’s criminal
history.
Appellant cites Ex parte Carter and Reese v. State as support for his
argument that the State opened the door to Cavitt’s complete criminal history by
10
asking, “[Y]ou’ve been in trouble with the law before; is that right?” 2 However,
unlike those cases, here the parties and the trial court explicitly agreed prior to
examination of Cavitt that the State would ask Cavitt about only three of his prior
convictions and that his earliest convictions were inadmissible. See Ex parte
Carter, 621 S.W.2d 786, 788 (Tex. Crim. App. 1981) (allowing impeachment of
defendant with entire criminal history of thirteen arrests that had not resulted in
convictions after defendant admitted he had previously been in trouble, but, after
counsel urged him to “get specific,” defendant admitted only to two prior
convictions and two prior extraneous offenses); Reese v. State, 531 S.W.2d 638,
641 (Tex. Crim. App. 1976) (allowing impeachment with additional offense for
unauthorized use of automobile when in response to question about “what kind of
trouble” defendant had with law, defendant admitted only one car-theft
conviction). Defense counsel affirmatively stated on the record that limiting
impeachment of Cavitt to his three most recent convictions was acceptable. The
State abided by this agreement and prefaced its questioning of Cavitt on this issue
by stating, “[Y]ou’ve been in trouble with the law before; is that right?” Cavitt
answered this question truthfully. The State then asked Cavitt about his two 2007
2
Appellant also cites the Court of Criminal Appeals’ unpublished opinion in Bess v.
State, No. AP-76377, 2013 WL 827479 (Tex. Crim. App. Mar. 6, 2013) (mem.
op., not designated for publication), as support for this argument. As the State
notes, Bess is an unpublished case that has no precedential value and “must not be
cited as authority by counsel or by a court.” See TEX. R. APP. P. 77.3.
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convictions and his 1989 conviction, and Cavitt testified, correctly and truthfully,
that he had those prior convictions.
Cavitt thus responded truthfully and responsively, and in accordance with
the parties’ prior agreement, to all of the State’s questioning regarding his prior
criminal history. See Grant, 247 S.W.3d at 368 (stating that courts consider
witness’s statement in relation to question asked); Paita, 125 S.W.3d at 712
(stating that courts consider whether witness’s answer was responsive to question
asked). This was not an instance of the State’s asking an open-ended question
about Cavitt’s criminal history and Cavitt’s testifying selectively about some
previous convictions and omitting others. Cf. Ex parte Carter, 621 S.W.2d at 788;
Reese, 531 S.W.2d at 641. Instead, Cavitt followed the trial court’s explicit
instructions, given to him at a hearing outside the presence of the jury, to answer
questions only about the three specified prior convictions.
We conclude that the trial court reasonably could have concluded that, in
following the instructions given to it by the court, the State did not open the door to
allowing defense counsel to inquire about the remainder of Cavitt’s criminal
history. We hold that the trial court did not abuse its discretion in prohibiting
defense counsel from asking Cavitt about his earlier convictions.
We overrule appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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