John Earl McKissack v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed March 30, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00252-CR
JOHN EARL MCKISSACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 19295
MEMORANDUM OPINION
A jury found Appellant John Earl McKissack guilty of aggravated assault
with a deadly weapon. See Tex. Penal Code Ann. § 22.02(b). On appeal,
Appellant challenges the trial court’s exclusion of certain evidence showing that
the Complainant previously had been convicted of theft. For the reasons below,
we affirm.
BACKGROUND
Before the underlying events occurred, Appellant and Complainant were
roommates and friends. But on January 17, 2021, Appellant shot Complainant in
the hip with a handgun. Appellant was arrested and charged with aggravated
assault with a deadly weapon.
Appellant proceeded to a jury trial in March 2022. By this time,
Complainant had died in an unrelated incident.
The jury heard testimony from ten witnesses, eight of whom testified for the
State and two testifying for Appellant. We summarize relevant portions of their
testimony below.
Appellant’s Girlfriend
Appellant’s girlfriend (“Girlfriend”) was at the house when the shooting
occurred. Describing the events leading up to the incident, Girlfriend said she
arrived at the home the day before the shooting and spent the day with Appellant
and Complainant. Girlfriend said “[e]verything was fine when I got there. Every
— I mean, there was no arguing, there was no fussing, there was no fighting.
[Appellant and Complainant] were getting along.” Girlfriend acknowledged that
“[t]here was some drinking going on.”
As the night went on, Girlfriend said the three of them “[l]isten[ed] to
music” and continued drinking; Girlfriend described everything as “normal.”
Girlfriend said she and Appellant were not drunk when they went to bed later that
night. Girlfriend recalled that Complainant stayed up for a while longer listening
to music.
Girlfriend said she and Appellant woke up the next morning at
approximately 7:30 a.m. Girlfriend said Appellant went outside to work on the
house’s hot water heater while she stayed inside to sort laundry. According to
Girlfriend, neither she nor Appellant drank any alcohol that morning.
Girlfriend said she was walking out of the master bedroom when she saw
Complainant in the kitchen taking “a double shot of vodka.” Girlfriend recalled
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that Complainant began “taunting” Appellant and going “in and out” of the house
— “coming in to take shots out of his bottle and then back outside to taunt
[Appellant].” Girlfriend said Complainant was being “obnoxious” and seemed
“tipsy.” According to Girlfriend, Complainant “knew what buttons to push” when
it came to Appellant.
Girlfriend said Appellant eventually became “aggravated” with
Complainant. Girlfriend recalled that both men returned inside the house where
they “continued this agitation” in the living room. Girlfriend said she was sorting
laundry in the same room while Appellant and Complainant continued arguing,
with her back turned to the men. Girlfriend said she would periodically “turn and
look” at the men and, at one point, saw that Appellant had a gun in his hand.
According to Girlfriend, Appellant was “waving” the gun and gesturing at
Complainant to “leave.”
Girlfriend said her back was turned when she heard the gun go off. When
Girlfriend turned around, Appellant was standing in the room with the gun in his
hand and Complainant was bleeding on the ground. According to Girlfriend,
Appellant wiped the blood off Complainant’s phone and handed it to Complainant,
while telling him to “[t]ell them Lampey did it.”
Girlfriend said Appellant then walked outside the home. Girlfriend corralled
her dogs, picked up her purse, and also left the house. Girlfriend said she and
Appellant got in her car; Girlfriend recalled Appellant saying, “I can’t believe that
I just did that.” Girlfriend did not remember Appellant saying that the shooting
had been accidental.
According to Girlfriend, she and Appellant spent the night at her relatives’
home. The next day, Girlfriend dropped Appellant off at a park in Rosenberg.
Girlfriend said she was contacted by Detective Whiddon two days later and
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questioned about the shooting. Girlfriend said she then talked to Appellant and
reported Appellant’s location to Detective Whiddon.
Reviewing the course of events, Girlfriend recalled thinking that the men
were just having “another one of their crazy arguments that they always had.”
Girlfriend said this argument was similar to ones she had previously seen the men
engage in; describing other arguments, Girlfriend said the men typically “were
friends again” by “the next morning.” When asked if Appellant could have been
acting in self-defense by shooting Complainant, Girlfriend said it was “possible.”
She also acknowledged that Complainant was younger and more able-bodied than
Appellant and that Appellant walked with a limp. Girlfriend said she never saw
Complainant touch or hit Appellant while they were arguing.
Officer Duke
Officer Duke was the first law enforcement officer to respond to
Complainant’s 911 call reporting the shooting. According to Officer Duke, he
walked in the house and saw Complainant in “a pool of blood on the ground.”
Officer Duke said Complainant was coherent and conscious. Officer Duke did not
remember smelling any alcohol in the home.
Officer Duke recalled Complainant telling him that “his roommate had shot
him and that — when I asked him how — like, if they were fighting or anything
like that, he said no, they were — that his roommate was just being funny.”
Sergeant Janes-Busse
Sergeant Janes-Busse arrived at the house shortly after Complainant’s 911
call. Sergeant Janes-Busse said Complainant was sitting in a recliner when she
walked in the house and recalled seeing a blood stain on the floor. When asked
what Complainant told her about the shooting, Sergeant Janes-Busse said
Complainant told her “the alleged suspect, his roommate, [Appellant], was mad
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and he was trying — drunk and trying to show off in front of his girlfriend.”
Paramedic Tanner Jacob
Paramedic Jacob also responded to the home following Complainant’s 911
call. Jacob said he saw Complainant in the living room and recalled that
Complainant was “shot through the hip.” According to Jacob, Complainant was
alert and coherent and said that “his roommate shot him.” Jacob said he noted in
his report that “there was a smell of alcohol and potentially marijuana” in the
home. Jacob said Complainant was transported to the local hospital.
Investigator McAnally
Investigator McAnally interviewed Complainant at the hospital the day of
the shooting. McAnally said that Complainant was “coherent” and answered
questions “appropriately.” McAnally also said Complainant appeared
“intoxicated” and had “slurred” speech.
McAnally recalled that Complainant’s account “changed” with respect to
how many times he was shot at — McAnally said Complainant referenced “three,
four, up to six or seven” shots. McAnally said Complainant’s recollection
regarding where he was standing in the living room when he was shot also
changed. Despite these variations, McAnally said he found Complainant
“credible.”
Lieutenant Blakey
Lieutenant Blakey also interviewed Complainant at the hospital. Lieutenant
Blakey recalled smelling alcohol on Complainant’s breath but said Complainant
answered the questions coherently and appropriately. Lieutenant Blakey recounted
the following conversation with Complainant:
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Q. What did [Complainant] tell you?
A. Do you want his exact words or —
Q. If you recall, please.
A. He said that he had been in fights before with [Appellant].
Q. And had he caused any injuries to [Appellant]?
A. He said — I asked him, I said, so did you whip [Appellant’s]
ass before?
Q. And he answered?
A. “Yes.”
* * *
Q. Did [Complainant] tell you maybe [Appellant] shot him
because [Appellant] knew he couldn’t beat [Complainant]
with his hands?
A. Yes, he did say that, yes.
Nurse Morton
Nurse Morton treated Complainant at the hospital. According to Morton,
Complainant told her he was shot by Appellant, whom he described as “his
roommate and friend.”
Relevant Evidentiary Ruling and the Jury’s Verdict
During the witnesses’ testimony, Appellant offered into evidence a certified
felony conviction from 2016, showing that Complainant previously had been
convicted of “theft of property, $2,500, [with] two or more previous convictions.”
The State objected to the evidence and the trial court sustained the State’s
objection.
After the close of evidence, the jury deliberated and found Appellant guilty
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of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(b).
The jury assessed punishment at life imprisonment. Appellant timely appealed.
ANALYSIS
Appellant raises three issues on appeal:
1. the appeal should be abated to permit the filing of a supplemental
record containing the exhibit showing Complainant’s felony
conviction;
2. the trial court violated Appellant’s constitutional rights by excluding
evidence of Complainant’s felony conviction; and
3. the trial court abused its discretion by excluding evidence of
Complainant’s theft conviction.
We address these issues individually below.
I. Abatement
In his first issue, Appellant asks that we abate the appeal and order the filing
of a supplemental record containing the excluded exhibit showing Complainant’s
felony conviction. This is in substance a motion to supplement the reporter’s
record with an exhibit, the 2016 felony conviction, not an issue directed at error in
the trial court’s judgment, and we treat it as a motion.
To preserve error regarding a trial court’s decision to exclude evidence, the
complaining party must comply with Texas Rule of Evidence 103 by making an
“offer of proof,” which sets forth the substance of the proffered evidence. See Tex.
R. Evid. 103; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). The
offer of proof may consist of a concise statement by counsel that “include[s] a
reasonably specific summary of the evidence offered and [] state[s] the relevance
of the evidence unless the relevance is apparent, so that the court can determine
whether the evidence is relevant and admissible.” Mays, 285 S.W.3d at 889-90(internal quotation omitted). “The primary purpose of an offer of proof is to
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enable an appellate court to determine whether the exclusion was erroneous and
harmful.” Id. at 890 (internal quotation omitted).
Here, although the exhibit showing Complainant’s felony conviction is not
contained in the reporter’s record, counsel’s description of its contents is sufficient
to permit the court to determine whether the trial court erred in excluding the
evidence. See, e.g., Williams v. State, 964 S.W.2d 747, 753 (Tex. App.—Houston
[14th Dist.] 1998, pet. ref’d) (any error stemming from the exclusion of certain
witness testimony from the record was harmless when it was clear from the record
“exactly what [the defendant] wanted to preserve for appeal”); see also Smith v.
State, No. 01-13-00438-CR, 2014 WL 4219556, at *3 (Tex. App.—Houston [1st
Dist.] Aug. 26, 2014, pet. ref’d) (mem. op., not designated for publication) (any
error from the exclusion of certain evidence “was harmless because it is apparent
from the record what appellant was attempting to establish”). Therefore, it is not
necessary to abate this appeal to permit the filing of a supplemental reporter’s
record.
We overrule Appellant’s motion to supplement the reporter’s record.
II. Exclusion of the Exhibit Showing Complainant’s Felony Conviction
Appellant asserts that the exclusion of the exhibit showing Complainant’s
felony conviction violated his constitutional rights as well as the Texas Rules of
Evidence.
A. Constitutional Rights
In his second issue, Appellant contends that “[t]he trial court’s exclusion of
[Complainant’s] prior theft conviction violated his constitutional right to present a
complete defense.” In response, the State asserts that Appellant’s argument was
not raised in the trial court and therefore is not preserved for appeal.
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We presume without deciding that Appellant’s issue premised on the right to
present a complete defense was properly preserved. We proceed to analyze the
merits of Appellant’s argument.
The United States Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. Kelly v. State, 321 S.W.3d 583, 592
(Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Crane v. Kentucky, 476
U.S. 683, 690 (1986)). A trial court’s exclusion of evidence may violate this right
if the ruling excludes otherwise relevant, reliable evidence which forms such a
vital portion of the case that exclusion effectively prevents the defendant from
presenting a defense. Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002);
Young v. State, 358 S.W.3d 790, 804 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d).
However, “[e]rroneous evidentiary rulings rarely rise to the level of denying
the fundamental constitutional rights to present a meaningful defense.” Potier v.
State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). The fact that a defendant was
unable to present his case to the extent and in the form he desired does not rise to
constitutional error if he was not prevented from presenting the substance of his
defense to the jury. Id. at 666; see also Harris v. State, 152 S.W.3d 786, 794 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d) (“A defendant’s right to present
relevant evidence is not unlimited, but rather subject to reasonable restrictions.”
(internal quotation omitted)). In this context, we review a trial court’s decision to
exclude evidence for an abuse of discretion. See, e.g., Young, 358 S.W.3d at 803.
Here, Appellant has not shown that the exclusion of evidence regarding
Complainant’s theft conviction effectively prevented him from presenting a
defense in the underlying proceeding. See Wiley, 74 S.W.3d at 405; Kelly, 321
S.W.3d at 592. Although this evidence was relevant with respect to Complainant’s
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credibility, Complainant’s credibility was not a central issue. As the witnesses’
testimony showed, Complainant’s statements about the shooting painted a
multifaceted picture of what occurred — a picture that was not definitive as to
Appellant’s culpability or motive. For example, Officer Duke recounted that
Complainant said Appellant “was just being funny” when he shot him and denied
that they had been fighting. According to Lieutenant Blakey, Complainant
acknowledged that he previously had “whip[ped] [Appellant’s] ass” and said
Appellant shot him because he knew he “couldn’t beat [Complainant] with his
hands.” Finally, Nurse Morton testified that Complainant told her he was shot by
Appellant, whom he described as “his roommate and friend.” Against this
backdrop, Complainant’s credibility was not central to resolving the issues of fact
presented to the jury. Accordingly, evidence pertaining to Complainant’s
credibility did not form a vital portion of Appellant’s case. See Wiley, 74 S.W.3d
at 405; Young, 358 S.W.3d at 804. The trial court did not abuse its discretion in
excluding this evidence. See Young, 358 S.W.3d at 803.
We overrule Appellant’s second issue. 1
B. Texas Rules of Evidence
In his third issue, Appellant contends that evidence of Complainant’s felony
conviction was admissible under Texas Rule of Evidence 609, which permits
impeachment with evidence showing commission of a felony or a crime involving
moral turpitude. See Tex. R. Evid. 609. The State asserts that Appellant waived
this argument by failing to specifically reference Rule 609 in the trial court.
To preserve error, a party must present “the grounds for the ruling . . . with
sufficient specificity to make the trial court aware of the complaint, unless the
1
Justice Spain would overrule the second issue for lack of preservation of an appellate
complaint and not reach the merits. See Tex. R. App. P. 33.1(a).
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specific grounds were apparent from the context.” Tex. R. App. P. 33.1. This
requires that the complaining party inform the trial court what he wants, why he
thinks he is entitled to it, and to do so clearly enough for the trial court to
understand him when it is in the proper position to do something about it. Pena v.
State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). “Error preservation does
not involve a hyper-technical or formalistic use of words or phrases; rather,
straightforward communication in plain English is sufficient.” Leal v. State, 469
S.W.3d 647, 649 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
The admissibility of prior convictions to attack a witness’s character for
truthfulness is governed by Texas Rule of Evidence 609. See Tex. R. Evid. 609. A
crime of moral turpitude is one of the types of convictions that may be used for
impeachment purposes. See id. By asserting that evidence of Complainant’s
conviction was admissible as “a conviction for a crime of moral turpitude which
goes directly to credibility,” Appellant’s objection was sufficiently specific to
apprise the trial court of the basis for Appellant’s argument, i.e., Rule 609. See id.;
Pena, 285 S.W.3d at 463-64. Therefore, this argument is properly preserved for
appeal. See Tex. R. App. P. 33.1.
We review a trial court’s evidentiary ruling for an abuse of discretion.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). Under this
standard, we must uphold the trial court’s ruling if the record reasonably supports
it and it is correct under any applicable legal theory. Neale v. State, 525 S.W.3d
800, 809 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial court does not
abuse its discretion when its ruling falls within the zone of reasonable
disagreement. Gonzalez, 544 S.W.3d at 370.
Under Rule 609, evidence of a criminal conviction “must” be admitted if the
following three requirements are met:
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1. the crime was a felony or involved moral turpitude, regardless of
punishment;
2. the probative value of the evidence outweighs its prejudicial effect to
a party; and
3. it is elicited from the witness or established by public record.
Tex. R. Evid. 609(a). This impeachment tool is not limited to witnesses; it also
may be employed to attack the credibility of a declarant whose hearsay statements
have been admitted into evidence. See Tex. R. Evid. 809 (“When a hearsay
statement . . . has been admitted in evidence, the declarant’s credibility may be
attacked, and then supported, by any evidence that would be admissible for those
purposes if the declarant had testified as a witness.”). Here, several witnesses
testified as to Complainant’s hearsay statements regarding the shooting.
Accordingly, Rule 609 provided a potential route for Appellant to attack
Complainant’s credibility. See Tex. R. Evid. 609, 806; see, e.g., Morris v. State,
214 S.W.3d 159, 187 (Tex. App.—Beaumont 2007), aff’d, 301 S.W.3d 281 (Tex.
Crim. App. 2009).
Specifically, Appellant sought to introduce evidence showing Complainant
had been convicted of theft in 2016. “Theft is a crime of moral turpitude involving
elements of deception.” Huerta v. State, 359 S.W.3d 887, 892 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Thus, Rule 609’s first requirement was
satisfied. See Tex. R. Evid. 609(a).
Turning to Rule 609’s second requirement, the burden was on Appellant to
demonstrate that the probative value of Complainant’s conviction substantially
outweighed its prejudicial effect. See Tex. R. Evid. 609(a); Blacklock v. State, 611
S.W.3d 162, 170 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). In applying
the Rule 609 balancing test when the witness is not the defendant, courts generally
consider the following nonexclusive factors: (1) the impeachment value of the
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prior crime; (2) the temporal proximity of the conviction to the date the witness
testifies and the witness’s subsequent criminal history; (3) the similarity of the past
crime to any conduct at issue in the present trial; (4) the importance of the
witness’s testimony; and (5) the importance of the credibility issue. Blacklock, 611
S.W.3d at 170.
Application of these factors shows that the trial court’s decision to exclude
evidence of Complainant’s prior conviction was not outside the zone of reasonable
disagreement.
First, although a theft conviction carries a higher impeachment value
because it is a crime of deception, it is outweighed by the remaining factors as
outlined below. Id. at 171.
Second, some years had elapsed between Complainant’s theft conviction and
his statements describing the shooting. Complainant was convicted in 2016; he
was shot (and made the statements describing the shooting) in January 2021,
approximately five years later.
Third, there is little similarity between Complainant’s theft conviction and
any conduct at issue at Appellant’s trial.
Fourth, Complainant’s hearsay statements were not critical to the underlying
proceeding. The charge asked the jury to determine whether Appellant committed
aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(b).
Setting aside Complainant’s hearsay statements, the jury heard a significant
amount of evidence describing the shooting. Girlfriend’s testimony, in particular,
provided a thorough recounting of events both before and after the shooting. The
jury did not hear any evidence suggesting that the shooting had been committed by
someone other than Appellant. At most, evidence of Complainant’s prior
conviction was relevant only to attack Complainant’s general credibility.
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Finally, and most importantly (as discussed above), Complainant’s
credibility was not a central issue in the underlying proceeding. Several witnesses
testified that Complainant told them he was shot by Appellant; this assertion was
corroborated by all the evidence in the case. Complainant’s statements about the
shooting were not necessary to resolve the issues presented nor were they
definitive as to Appellant’s intent or motive.
Therefore, we conclude that the trial court did not abuse its discretion in
excluding evidence of Complainant’s conviction. We overrule Appellant’s third
issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
Do Not Publish – Tex. R. App. P. 47.2(b)
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