DocketNumber： 11-00-00334-CR
Filed Date： 12/6/2001
Status： Precedential
Modified Date： 9/10/2015
11th Court of Appeals
Eastland, Texas
Opinion
Lakeshia Griffin
Appellant
Vs. Nos. 11-00-00333-CR, 11-00-00334-CR, 11-00-00335-CR, 11-00-00336-CR,
& 11-00-00344-CR B Appeals from Dallas County
State of Texas
Appellee
Appellant pleaded guilty to one charge of murder,[1] three charges of attempted murder,[2] and one charge of arson.[3] The jury assessed punishment at 25 years confinement for the murder conviction. The jury assessed punishment at 20 years confinement for each of the attempted murder convictions and for the arson conviction. With respect to the murder conviction, appellant argues that the trial court erred in failing to include an instruction on sudden passion. With respect to all 5 convictions, appellant argues that: (1) the trial court erred by denying a challenge for cause of a venireperson and (2) the trial court erred by admitting hearsay testimony from two witnesses.[4] We affirm.
Background facts
On the night of the offenses, appellant was staying in a room at the Circle Inn Motel in Dallas. Jerome Patterson, known as AJ.R.@; Robert Winston; and Yvonne Stevens were with appellant in the room. Appellant was in love with J.R. and was unhappy because he had been mistreating her. Appellant and J.R. had an argument, and appellant observed J.R. have sex with Stevens. Appellant told Winston that she was going to Aburn y=all=s asses up.@ Also, on the same night but prior to appellant starting the fire, she repeatedly told another resident of the motel that she would kill J.R. if she caught him with another girl.
Appellant, J.R., Stevens, and Winston fell asleep on the same bed in appellant=s motel room. While the others continued to sleep, appellant awoke and smoked some crack cocaine. She then placed two telephone books and a shirt under the bed, ignited them, and left the room. The fire burned down a portion of the Circle Inn Motel and killed Della Washington, who was in another motel room at the time. J.R., Stevens, and Winston, appellant=s intended targets, woke up in time and escaped.
Sudden Passion
In her first point of error, appellant argues that the trial court erred by failing to instruct the jury on whether appellant caused the death of Washington while acting Aunder the immediate influence of sudden passion arising from an adequate cause.@ Sudden passion is passion directly caused by provocation by the person killed or another acting with the person killed which arises at the time of the offense and is not solely the result of earlier provocation. TEX. PENAL CODE. ANN. ' 19.02(a)(2) (Vernon 1994). If the defendant proves by a preponderance of the evidence that a killing was committed while under the influence of sudden passion arising from adequate cause, then the offense is reduced to a second-degree felony. TEX. PENAL CODE ANN. ' 19.02(d) (Vernon 1994). Any evidence that the defendant acted while under the influence of sudden passion arising from adequate cause requires the trial court to submit an issue on this mitigating circumstance to the jury.
Appellant=s testimony demonstrates that her actions were in retaliation to the argument that she had with J.R. earlier that night. A sudden passion instruction is unwarranted when the alleged passion is solely the result of a former provocation. McIntosh v. State, 855 S.W.2d 753, 761 (Tex.App. - Dallas 1993, pet=n ref=d). Appellant testified that she got into an argument with J.R. at about 1:00 a.m. Appellant fell asleep after the argument. At least two hours later, appellant awoke and smoked some crack cocaine. Appellant stated that she then spent some time thinking about things that J.R. had done to her. When appellant started the fire, at least two hours had passed since her argument with J.R. Appellant=s testimony demonstrates that her acts were the result of a former provocation. The evidence did not warrant a sudden passion instruction. We overrule appellant=s first point of error.
Challenge for Cause
In her second point of error, appellant argues that the trial court erred in denying her challenge to Venireperson Monohan because Venireperson Monohan indicated that she could not be fair. After learning that Venireperson Monohan had a son enrolled at the Dallas Police Academy, defense counsel asked Venireperson Monohan if this would make it difficult for her to consider probation for the defendant. At first, Venireperson Monohan indicated that she hoped she could be fair. However, when defense counsel rephrased the question and raised the prospect of retaliation against her son, Venireperson Monohan began to vacillate. When defense counsel asked if in that circumstance she may not be fair and impartial to the defendant, Venireperson Monohan responded in the affirmative. At that point, the court told Venireperson Monohan not to let defense counsel put words in her mouth. The trial court asked Venireperson Monohan if she could be fair even though her son was in the Police Academy. When Venireperson Monohan responded that she Awouldn=t want any repercussion,@ the trial court assured Venireperson Monohan that it would handle the situation if there were any repercussions.
A challenge for cause may be made against a prospective juror if the juror has a bias or prejudice against the defendant. TEX. CODE CRIM. PRO. ANN. art. 35.16(a)(9) (Vernon 1989). The trial court=s ruling on a challenge for cause should not be disturbed absent an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 559 (Tex.Cr.App.1999), cert. den=d, 529 U.S. 1070 (2000). The appellate court must review the record as a whole and determine whether there is support for the trial court=s ruling and, in doing so, must give deference to the trial court, which was in a position to actually see and hear the venireperson. Ladd v. State, supra. Being in that position allows the trial court to consider important factors such as demeanor and tone of voice that are not apparent from a cold appellate record. Banda v. State, 890 S.W.2d 42, 54 (Tex.Cr.App.1994), cert. den=d, 515 U.S. 1105 (1995).
We find no abuse of discretion on the part of the trial court. The record indicates that Venireperson Monohan only began to vacillate when defense counsel rephrased the question, injecting the prospect of retaliation against her son if she voted for probation. Nothing in the record indicates that Venireperson Monohan had a bias or prejudice against appellant. Based on the testimony of Venireperson Monohan, the trial court reasonably concluded that Venireperson Monohan could have given appellant probation. We overrule appellant=s second point of error.
Hearsay
In her third and fourth points of error, appellant contends that the trial court erred by admitting hearsay testimony from two witnesses. An appellate court reviewing a trial court=s ruling on the admissibility of evidence utilizes an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000). The appellate court must uphold the trial court=s ruling if it was within the zone of reasonable disagreement. Weatherred v. State, supra. Hearsay is a statement other than one made by the declarant at trial that is offered into evidence to prove the truth of the matter asserted. TEX.R.EVID. 801(d).
Winston testified that he spoke to J.R. about appellant on the night of the fire. The State then asked if it was fair to say from the conversation that J.R. was no longer serious about his relationship with appellant. Defense counsel=s objection was overruled. Winston testified, AHe wasn=t, you know what I=m saying, he wasn=t feeling it no more, you know.@ Winston further testified that J.R. Awas frustrated because he see some things what were happening.@
Winston=s testimony regarding his conversation with J.R. did not constitute hearsay. Hearsay is defined as an out-of-court statement offered in court for the truth of the matters asserted therein, thus Aresting for its value upon the credibility of the out-of-court asserter.@ Barnard v. State, 730 S.W.2d 703, 723 (Tex.Cr.App.1987). The statements, AHe wasn=t, you know what I=m saying, he wasn=t feeling it no more@ and Awas frustrated because he see some things what were happening,@ were not out-of-court statements. They were the opinion of Winston, who was testifying. Even if Winston=s testimony did relate to a statement made by J.R., it was admissible as evidence of J.R.=s then-existing attitude toward appellant. TEX.R.EVID. 803(3).
Next, appellant contends that the testimony of juvenile probation officer Sherry Smith, regarding a statement made by appellant, was inadmissible hearsay. Smith testified that appellant threatened to kill another young woman at a juvenile detention center meeting. Smith further testified that appellant said that, Aif she says she=s going to kill somebody, she=s going to do it. Other people say they will but they won=t.@ Smith=s testimony was admissible and was not hearsay because it was an admission by a party opponent. TEX.R.EVID. 801(e)(2)(A).
Even if the trial court erred in admitting the statements, the errors were harmless. In Goodman v. State, 701 S.W.2d 850, 863-864 (Tex.Cr.App.1985), the court held that hearsay evidence improperly admitted over objection will constitute reversible error only if there is a reasonable possibility that the evidence is prejudicial to the defendant or may have contributed to his conviction. TEX.R.APP.P. 44.2(b). Smith=s testimony revealed nothing about appellant=s personality that was not previously revealed by the testimony of other witnesses and appellant had already pleaded guilty to each of the charges. The trial court did not abuse its discretion. We overrule appellant=s third and fourth points of error.
This Court=s Ruling
The judgments of the trial court are affirmed.
TERRY McCALL
JUSTICE
December 6, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Cause No. 11-00-00344-CR.
[2] Cause Nos. 11-00-00333-CR, 11-00-00334-CR, and 11-00-00335-CR.
[3]Cause No. 11-00-00336-CR.
[4]Appellant=s brief states that these two points of error are AGermane to All Four Appeals,@ but she does not specify which four appeals. Therefore, we will assume that appellant meant for these two points of error to apply to all five convictions.