Speer, William Keith v. Texas, the State Of

Judgment affirmed and Opinion filed July 14, 1994
In The
Qlnurt 0f Appeals
For The
First Ststrtrt at Qtoois
NO. 01-92-00908-CR
WILLIAM KEITH SPEER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 598,119
OPINION
Appellant, a juvenile, was certified to stand trial as an adult for murder and
capital murder for remuneration. A jury found appellant guilty of capital murder for
remuneration, and the trial court assessed punishment at life imprisonment. In 11 points
of error, appellant contends that: (1) the evidence was insufficient to show that he
committed the murder for remuneration or the promise of remuneration; (2) during voir
dire, the prosecutor inaccurately instructed the jury on the law; (3) the trial court erred in
denying his motion to quash because the statutory punishment is arbitrary and capricious,
in violation of the Texas and United States Constitutions; (4) the trial court never
obtained jurisdiction to hear the case; (5) the trial court failed to require the State to elect
a paragraph upon which to proceed; (6) the trial court erred by admitting into evidence
certain hearsay statements; (7) the trial court erred by denying relevant portions of his
requested jury charge numbers two and three, and all of his requested jury charge four;
and (8) the trial court erred by excluding certain expert testimony. We affirm.
In the early morning of January 24, 1991, 16-year-old appellant, carrying his
mother's gun, sneaked out of his home and rode with his friend, 19-year-old Franklin
Manyoma, to the home of the complainant, Jerry Collins. Appellant entered Collins'
bedroom, and shot and killed him as he slept in his bed. Collins was the father of John
Collins, also a friend of appellant. At the time of the killing, because John and his father
were not getting along, he had moved out of his father's house, and he and Manyoma
were living with Cindy Patterson, appellant's aunt, and her three daughters, 17-year-old
Christy Barton, 14-year-old Candy Barton, and eight-year-old Kimi Barton. Candy was
Manyoma's girlfriend.
About a week before the killing, the complainant and Manyoma had a
dispute about a $828 debt that the complainant was attempting to collect from Manyoma.
Manyoma told appellant that the complainant had given him until noon on January 24 to
pay the money, or complainant would give the police a video tape showing Manyoma,
John, and others selling cocaine. Several days before the murder, John, Manyoma,
Candy, and appellant drove to the home of their friends, 15-year-old Lee and 20-year-old
Victor Garza. Lee said that while appellant was present, Manyoma asked him, Lee, and
Victor to kill the complainant for $2500 and a pistol. They both refused, but each day
Manyoma continued to ask Lee to do the killing. Appellant was present on some of these
occasions. Manyoma finally told Lee that he was going to get appellant to do it.
In his first point of error, appellant contends the evidence was insufficient to
show that he murdered the complainant for remuneration or the promise of
remuneration, as charged in the indictment. In reviewing the sufficiency of the evidence,
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an appellate court must view the evidence in the light most favorable to the verdict to
determine if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979). This Court may not sit as a thirteenth juror and disregard or reweigh the
evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). If there is
evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes
that evidence, we are not in a position to reverse the judgment on sufficiency of the
evidence grounds. Id.; Glass v. State, 761 S.W.2d 806, 807 (Tex. App.-Houston [1st
Dist.] 1988, no pet.). The jury, as trier of fact, is the sole judge of the credibility of
witnesses, and may believe or disbelieve all or any part of a witness' testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert, denied, 488 U.S. 872, 109 S. Ct.
190 (1988); Smith v. State, 789 S.W.2d 419, 420 (Tex. App.-Houston [1st Dist.] 1990,
pet. refd). A jury may believe a witness even though his testimony is contradicted.
Sharp, 707 S.W.2d at 614.
To support his argument, appellant submits affidavits from six jurors
(admitted at the hearing on the motion for new trial) relating the jurors' understanding of
the evidence at trial to support a "promise of remuneration." The affidavits contain the
following statements:
In my service as a juror in this case, the crucial decision
that had to be made was whether or not WILLIAM KEITH
SPEER was guilty of Capital Murder or only of the lesser
included offense of Murder.
There was no doubt in my mind that WILLIAM
KEITH SPEER was guilty of Murder, but to find him guilty of
Capital Murder it was necessary for me to find he acted
because of "remuneration or the promise of remuneration,
namely money".
There was no evidence that WILLIAM KEITH SPEER
had received any money prior to his killing JERRY COLLINS
so my focus was on the "promise of remuneration" portion.
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There was also no evidence that FRANKLIN MANYOMA
ever promised WILLIAM KEITH SPEER any money to kill
JERRY COLLINS and my verdict of Capital Murder was
based on my understanding that WILLIAM KEITH SPEER'S
belief that FRANKLIN MANYOMA might give him money
because he did the killing was sufficient to satisfy the "promise
of remuneration" requirement.
Specifically, I do not believe the evidence showed
FRANKLIN MANYOMA ever paid WILLIAM KEITH
SPEER to kill JERRY COLLINS nor did FRANKLIN
MANYOMA ever promise WILLIAM KEITH SPEER he
would pay him if he would kill JERRY COLLINS.
We may not consider these affidavits. Rule 606(b) of the Texas Rules of
Criminal Evidence provides that a juror is not competent to testify (or to give affidavit
testimony) about "any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon his or any other juror's mind or emotions
as influencing him to assent to or dissent from the verdict or indictment or concerning his
mental processes in connection therewith, except that a juror may testify as to any matter
relevant to the validity of the verdict or indictment." See Mclntire v. State, 698 S.W.2d
652, 658 (Tex. Crim. App. 1985) (motion for new trial alleging jury misconduct on matter
outside the record must be supported by the affidavit of juror in a position to know the
facts). Appellant complains about the sufficiency of the evidence as it relates to the
indictment and jury instructions. This is a matter shown by the record; we do not consider
what the jurors recall about the evidence.
The record reflects that the jury was given the following definition of
remuneration:
Remuneration means a pecuniary reward given or
received because of some act. The act must be done for the
purpose of receiving some benefit. The focus is on the
defendant's state of mind and the State is obligated to offer
evidence which establishes beyond a reasonable doubt the
defendant's intent or state of mind as related to an
expectation of remuneration.
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The record further reflects that the indictment limited remuneration to "money."
Therefore, the State had the burden to offer evidence establishing beyond a reasonable
doubt appellant's intent as related to an expectation of money. When considering
evidence of remuneration, the Court of Criminal Appeals has consistently held that the
"focus is on the actor's state of mind." Rice v. State, 805 S.W.2d 432, 434-35 (Tex. Crim.
App. 1991); Beets v. State, 767 S.W.2d 711, 735 (Tex. Crim. App. 1987); Duff-Smith v.
State, 685 S.W.2d 26 (Tex. Crim. App. 1985); McManus v. State, 591 S.W.2d 505, 513
(Tex. Crim. App. 1979). Appellant argues that the evidence proved that he killed the
complainant to please Manyoma, not to receive money.
The most compelling evidence relating to appellant's motive is included in
his confession, where he states, "I finally told [Manyoma] that I would do it. I wanted to
help out my friend, I did not want him to go to jail, and I knew he would give me money."
He also stated at trial and in his confession that after the murder, "[w]hile we were riding
back to my house, Franklin told me that he would pay seven or eight thousand dollars.
He claimed that he had the money in a bank account but could not get it." Moreover,
reasonable inferences could be drawn from the following circumstantial evidence of
appellant's state of mind: (1) appellant was present when the job was first offered to Lee
and Victor Garza in exchange for money and a pistol; (2) Manyoma told Lee Garza that
he was going to pay appellant to kill the complainant; and (3) after the killing, appellant
walked up to a group of people, including Manyoma and Lee Garza, patted Manyoma on
the back and said, "So when are you going to pay me?" We find this evidence sufficient
for a rational trier of fact to have found that appellant killed the complainant for the
promise of remuneration, namely money. We overrule point of error one.
In point of error two, appellant asserts the trial court erred by overruling his
objection to a particular statement made by the prosecutor during voir dire. Appellant
contends the prosecutor misstated the law when she told the venire members that "you
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can find someone guilty of capital murder even if you don't have someone expressly
promising to our killer they're going to get any money." The prosecutor's entire
statement was:
You must look to the state of mind of the person charged with
capital murder and if the reason that they committed an
intentional killing was because they expected some sort of
financial benefit or gain—and in this particular case we have to
show that the expected financial gain was money—then you
can find someone guilty of capital murder even if you don't
have someone expressly promising to our killer they're going
to get any money.
The State does not dispute that there was no evidence that appellant
received remuneration for killing complainant. Therefore, as in this case, when proof of
murder for the promise of remuneration is required, "the focus is on the actor's intent or
state of mind: Did the actor kill in the expectation of receiving some benefit or
compensation. . .?" Beets, 767 S.W.2d at 735. "The existence of a 'culpable promisor' is
not required." Id.
In McManus, the Court of Criminal Appeals affirmed a conviction where
the defendant murdered the parents of his girlfriend, Paula, based on the defendant's
expectation of receiving one-third of Paula's inheritance. 591 S.W.2d at 513. There was
no evidence that Paula agreed to pay the defendant. Id. The court stated that "the
record clearly reflects that appellant expected to share in the proceeds from the estate of
the victims and that he acted out of an expectation that he would receive such
remuneration." Id. The court further stated that:
appellant could have inferred from Paula's conduct that she
agreed to and acquiesced in his request for one-third of the
proceeds of the estate. Paula knew that appellant was serious
about having her parents murdered, and, according to her
own testimony, she listened to appellant discuss these plans
frequently. . . . The record is clear that appellant perceived
Paula's conduct as an implicit promise of a benefit and that he
acted upon that basis.
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Id. We find no error in the prosecutor's statement that "you can find someone guilty of
capital murder even if you don't have someone expressly promising to our killer they're
going to get any money." The prosecutor correctly stated the law. We overrule point of
error two.
In points of error three and four, appellant contends the trial court erred by
overruling his motion to quash because the statutory punishment is arbitrary and
capricious, in violation of the Texas and United States Constitutions. Appellant contends
that because the statutory punishment, when committed by a juvenile, is limited to life
imprisonment, it unconstitutionally limits the sentencer's consideration of any relevant
circumstances that could cause it to decline to impose the life punishment.
When reviewing the constitutionality of a sentencing statute, we consider:
(1) the gravity of the offense relative to the harshness of the penalty; (2) the sentence
compared to that received by others in the same jurisdiction; and (3) the sentence
compared to similar sentences in other jurisdictions. Solem v. Helm, 463 U.S. 277, 290,
103 S. Ct. 3001, 3010 (1983).
The offense is one for which Texas law provides the death penalty for adult
offenders without violation of the state or federal constitutional provisions against cruel
and unusual punishment. Smith v. State, 683 S.W.2d 393, 409 (Tex. Crim. App. 1984).
Oklahoma allows the death penalty as punishment for a similar offense committed by one
as young as 16. Eddings v. Oklahoma, 455 U.S. 104, 105, 102 S. Ct. 869, 871 (1982). If
appellant had been eight months older, he could have been assessed the death penalty. In
addition, the mandatory life sentence does not make appellant ineligible for parole under
Texas law.
Moreover, the jury heard testimony that appellant was abused by his father,
and that he had low self-esteem, allowing others to make important decisions for him.
This evidence was mitigating in nature, and the jury was able to consider its effect in
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determining whether appellant committed capital murder or murder, in that the evidence
tended to show that his motive was not for remuneration but for other reasons.
We further note that the recidivist statute that formerly required the
imposition of a life sentence was repeatedly upheld. See Brooks v. State, 642 S.W.2d 791
(Tex. Crim. App. 1982); Wilson v. State, 633 S.W.2d 952, 959 (Tex. Crim. App. 1982);
Williams v. State, 605 S.W.2d 596, 600 (Tex. Crim. App. 1980). We overrule points of
error three and four.
In point of error five, appellant contends the trial court never obtained
jurisdiction to handle the case pursuant to Tex. Fam. Code Ann. § 54.02 (Vernon 1986)
because the trial court never assumed jurisdiction. The day after appellant's May 14,
1991, certification hearing, the Honorable Robert B. Baum, judge of the 314th District
Court, a juvenile court, signed a certification order that waived jurisdiction, and
transferred appellant to the criminal district court. On the same day, the Honorable Jim
Barr, judge of the 183rd District Court, signed an order assuming jurisdiction over
appellant, directed that the criminal cause be filed and docketed, and ordered the sheriff
to take appellant into custody. At the top of Judge Barr's order are the words, "IN THE
183RD DISTRICT COURT OF HARRIS COUNTY, TEXAS." However, beneath his
signature below, Judge Barr is identified as "JUDGE, 314TH DISTRICT COURT
HARRIS COUNTY, TEXAS." This discrepancy is the basis of appellant's claim that the
183rd District Court never obtained jurisdiction over the cause.
Appellant claims that Ex parte LeBlanc, 577 S.W.2d 731 (Tex. Crim. App.
1979), is analogous to the case before us. In LeBlanc, the court held that criminal
proceedings against the appellant were terminated upon his discharge after an examining
trial, where it was determined there was no probable cause that he had committed the
alleged offenses. LeBlanc is distinguishable from the case before us. LeBlanc dealt with
the valuable right of an examining trial, i.e., an event that "furnishes another opportunity
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to have the criminal proceedings against the juvenile terminated and the jurisdiction of the
juvenile court resumed." Id. at 733. In contrast, in the case before us, the order
assuming jurisdiction over the cause contained a discrepancy that appears to be no more
than a typographical error or editing oversight. The caption of the order identifies the
court as the 183rd District Court. We find that the 183rd District Court properly assumed
jurisdiction over the cause. We overrule point of error five.
In point of error six, appellant contends the trial court erred in failing to
require the State to elect the paragraph upon which it would proceed. Before evidence
was presented, the trial court overruled defense counsel's request that the State be
required to make an election. Appellant never reurged his motion after the State rested.
The indictment reads, in pertinent part, that appellant did:
intentionally and knowingly cause the death of JERRY
COLLINS, hereinafter styled the Complainant, by shooting
the Complainant with a deadly weapon, namely, a firearm.
It is further presented that ... the Defendant ... did then
and there unlawfully intend to cause serious bodily injury to . .
. the Complainant, and did cause the death of the
Complainant by intentionally and knowingly committing an act
clearly dangerous to human life, namely, by shooting the
Complainant with a deadly weapon, namely, a firearm.
It is further presented that ... the Defendant ... did then
and there unlawfully, intentionally and knowingly cause the
death of . . . the Complainant, by shooting the Complainant
with a deadly weapon, namely, a firearm, and the Defendant
committed the murder for remuneration and the promise of
remuneration, namely, money.
The first two paragraphs allege alternative theories of committing the
offense of murder, not two separate offenses. Where there is sufficient evidence to
support the submission of two theories of committing a single offense, the State is not
required to elect only one theory for submission. Vasquez v. State, 665 S.W.2d 484, 486-
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87 (Tex. Crim. App. 1984),; Richardson v. State, 766 S.W.2d 538, 541 (Tex. App.-
Houston [14th Dist.] 1989, pet. refd).
The third paragraph alleges the offense of capital murder. Because the
State in the first two paragraphs alleged murder, a lesser included offense of capital
murder as alleged in the third paragraph, the State was not required to make an election.
Washington v. State, 111 S.W.2d 537, 546-47 (Tex. Crim. App. 1989). We overrule point
of error six.
In point of error seven, appellant complains about the trial court allowing
Lee Garza to testify about Manyoma soliciting him and his brother to kill the complainant.
Appellant contends the testimony was inadmissible hearsay; the State contends that the
testimony is not hearsay under Tex. R. Crim. Evid. 801(e)(2)(E). Rule 801(e)(2)(E)
provides that "a statement is not hearsay if the statement is offered against a party and is
a statement by a co-conspirator of a party during the course and in furtherance of the
conspiracy."
The complained-of testimony between Garza and the prosecutor follows:
Q: Prior to Mr. Collins being killed, did Franklin Manyoma
ever indicate to you whether or not Keith Speer was going to
assist in killing Mr. Collins?
A: Yes, ma'am.
Q: What did Franklin Manyoma say about Keith Speer?
A: Well, he told me around, I would say, around three days
before —
Defense Counsel: Judge, I object to this not having anything
to do with the furtherance or in the course of and object to it
as hearsay.
(UNRECORDED BENCH CONFERENCE)
Court: That will be overruled.
Q: What did Franklin Manyoma tell you about Keith Speer?
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A: What do you mean? What did he tell me about Keith
Speer?
Q: The question I asked you right before we approached the
bench, I believe I asked you whether or not Franklin
Manyoma had ever indicated to you whether or not Keith
Speer was going to do anything in reference to killing Mr.
Collins; do you remember that?
A: Yes, ma'am.
Q: What was your response?
A: He had told me like three days before the murder that
Keith was going to do it.
Q: Did he tell you how much he was going to do it for and
why he was going to do it?
Defense Counsel: Object to this also, Judge.
Court: Overruled. Same objection lodged.
Defense Counsel: Yes, your Honor.
Court: Same ruling.
A: He didn't say exactly. He said he was going to pay Keith a
few hundred dollars. Exactly I don't know what to tell you.
He just told me a few hundred dollars.
Q: That was before Mr. Collins was killed?
A: Yes, ma'am.
Appellant concedes the statements were made during the course of the
conspiracy, but contends they were not made in thefurtherance of the conspiracy because
they neither required nor suggested any action on the part of either party or any other
person, nor did they provide information to Lee that was necessary for him to act in any
way in furtherance of the conspiracy.
The "in furtherance" of the conspiracy requirement is a separate
requirement that must be met in addition to the requirement that the statement be made
"during the conspiracy." Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991).
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"Some substance must be given to the rule's requirement, not only that the statement was
made 'in the course' of the conspiracy, but also that it was made 'in furtherance' thereof."
Williams v. State, 790 S.W.2d 643, 645 (Tex. Crim. App. 1990).
In Deeb v. State, 815 S.W.2d 692, 697 (Tex. Crim. App. 1991), the court
reviewed some of its decisions on whether certain statements met the "in furtherance" of
the conspiracy requirement.
In Helms v. State, 493 S.W.2d 227, 230 (Tex. Crim. App.
1973), the co-conspirator's statement was made to facilitate
the disposal of the murder weapon. In Rodriguez v. State, 552
S.W.2d 451, 454, the co-conspirator's statements were made
to further the negotiations for the purchase of the illegal
drugs. In Denney v. State, 558 S.W.2d 467, 469, the co
conspirator's statements were made for the purpose of
disposing of the fruits of the crime and evidence that the
crime had been committed. In contrast to these examples, in
Ward v. State, 657 S.W.2d 133, 136-137, the co-conspirator's
statements were made in response to questioning after the
murder had been completed and the defendant was in
custody.
Manyoma's statements, although made before the murder, were not made in furtherance
of the conspiracy. We find nothing in Manyoma's statements to Lee Garza that advanced
the cause of the conspiracy nor served in any way to facilitate the conspiracy. See Meador,
812 S.W.2d at 334. Moreover, Manyoma's statements to Lee Garza did not "serve to
further the conspiracy to murder complainant for remuneration." See Deeb, 815 S.W.2d
at 698. The statements appear to be more in the nature of admissions or declarations
made during a mere conversation between conspirators, and their admission was error.
Accordingly, the judgment must be reversed unless we determine beyond a
reasonable doubt that the error made no contribution to the conviction. Tex. R. App. P.
81(b)(2). To make this determination, we examine the other evidence showing that a
conspiracy existed for appellant to kill complainant for remuneration. Lee and Victor
Garza testified that when Manyoma asked them to do the killing for money and a pistol,
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appellant was present. Appellant, both in his confession and at trial, admitted to being
present. Moreover, in his confession appellant stated, "I knew he would give me money."
He further stated that after the murder, "[w]hile we were riding back to my house,
Franklin told me that he would pay seven or eight thousand dollars. He claimed that he
had the money in a bank account but could not get it." After the killing, appellant walked
up to a group of people, including Manyoma and Lee Garza, patted Manyoma on the
back and said, "So when are you going to pay me?" Based on this evidence, we find
beyond a reasonable doubt that the error made no contribution to the conviction. We
overrule point of error seven.
In points of error eight and nine, appellant contends the trial court erred in
denying relevant portions of his requested jury charges two and three, relating to
Manyoma's statements made outside the presence of appellant. The trial court refused
the italicized portions of the following jury instructions:
In order for you to take into consideration such
statements, if any, as any evidence against the defendant, you
must believe from all the evidence beyond a reasonable doubt
that the defendant, William Keith Speer, had agreed with
Franklin Manyoma to commit the offense alleged in the
indictment and that they were acting together in the
commission of such offense. Further, the statements made
must have been made in furtherance of the conspiracy or in the
course of completing the conspiracy.
Unless you do believe beyond a reasonable doubt that
there was such agreement and that the defendant was a party
thereto, or if you have a reasonable doubt thereof, you will
disregard such statements, if any, of Franklin Manyoma as any
evidence against the defendant. Additionally, should you find
that there was such agreement and that the defendant was a
party thereto, in your consideration of the statements you are
instructed they were not offered for the truth of the matter
asserted but merely to show the existence of a conspiracy.
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There is no error in excluding the requested instruction if "defendant's own
acts and declarations sufficiently connected him with the offense to authorize a jury to
convict him, and because no declarations or acts of his co-principals connected him."
Lewis v. State, 237 S.W.2d 293, 301 (Tex. Crim. App. 1951). In Casillas v. State, 733
S.W.2d 158 (Tex. Crim. App. 1986), the court followed its reasoning in Lewis. Although
the second part of the Lewis holding (that no declarations or acts of his co-principals
connected defendant) is not valid in the case before us, in Casillas, the court emphasized
and relied upon the first part of its holding in Lewis, defendant's acts and declarations,
and not on the second part, the co-conspirators' acts and declarations connecting
defendant. The Casillas court emphasized that the appellants' own acts and declarations
showed that they were sufficiently connected with the commission of the felony to
authorize a jury to convict him. Id. at 167. The court also noted that holding that there
was no error in the jury instructions comported with the principle that, where evidence
which otherwise would be inadmissible, is proven by some other testimony, no reversible
error is shown. Id.
Appellant confessed to the murder of the complainant. He also confessed
that one of the reasons he killed the complainant was because "I knew [Manyoma] would
give me money." Appellant's own acts and declarations showed that he was sufficiently
connected with the commission of the felony to authorize a jury to convict him; therefore,
there was no error in refusing the requested instructions. We overrule points of error
eight and nine.
In point of error 10, appellant contends that the trial court refused to
permit Dr. Quijano's testimony, offered pursuant to Tex. R. Crim. Evid. 702. Rule 702
provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
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expert by knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise."
Appellant again relies on six juror affidavits, each of which state that
hearing testimony about Dr. Quijano's diagnosis of appellant's "dependent personality
disorder" would have assisted them in determining whether appellant killed the
complainant for the promise of remuneration or out of a desire to please Manyoma. The
decision whether to allow a witness to testify as an expert is committed to the sound
discretion of the trial court. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App.
1990). In reviewing the trial court's decision to exclude the testimony, the jurors'
assessment of the importance of Dr. Quijano's testimony is irrelevant.
Appellant argues that the trial court abused its discretion because Dr.
Quijano had evidence to which lay jurors would not routinely be privy. In support of his
argument, he cites Duckett, where the defendant was convicted of indecency with a child.
797 S.W.2d at 920. In Duckett, the court held that the trial court did not abuse its
discretion by allowing expert testimony that provided the jury with information concerning
child sexual abuse syndrome. Id. In its analysis, the court stated:
The test is not whether opinion testimony embraces an
ultimate fact in the case, for that is the expected or desired
result of specialized testimony. The test, restated, is whether
the expert's testimony, if believed, will assist the untrained
layman trier of fact to understand the evidence or determine a
fact in issue . . . and whether it is otherwise admissible under
general rules of relevant admissibility.
Where specialized knowledge will assist the jury to understand
the evidence or will assist them to determine a fact in issue, an
expert may be allowed to provide the jury with the benefit of
that knowledge. Two themes are prevalent within the
language of the rule. First, the jury must not be qualified to
intelligently and to the best possible degree determine the
particular issue without benefit of the expert witness'
specialized knowledge. Second, the clear meaning of the rule
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must be observed. . . . The use of expert testimony must be
limited to situations in which the expert's knowledge and
experience on a relevant issue are beyond that of an average
juror.
Id. (citations omitted).
A review of Dr. Quijano's testimony reveals that even though his insight into
appellant's dependent personality might have been of some benefit to the jury, the trial
court could have properly concluded that it was not the type of testimony found outside
the range of a layperson's knowledge. See Pierce v. State, 111 S.W.2d 399, 414 (Tex.
Crim. App. 1989) (expert testimony not allowed to assist jury on suggestiveness of a
lineup). Dr. Quijano would have testified that: (1) appellant had a dependent personality
disorder; (2) the disorder was characterized by a very dependent life style; (3) persons
with this disorder rely on the support and approval of others, such that they allow others
to make important decisions for them, and engage in menial and demeaning tasks to
maintain relationships with them; (4) appellant's willingness to do things for others was a
result of an inner need to please; and (5) appellant's dependent personality disorder
could have been a contributing factor to appellant's decision to kill complainant.
We find that the trial court did not abuse its discretion when it concluded
that Dr. Quijano's testimony was not the type of testimony found outside the range of a
layperson's knowledge. It is not uncommon for teenagers to be insecure, easily influenced
by others, and to act against their better judgment by following those doing the
influencing. In addition, the fact that appellant was strongly influenced by Manyoma and
others was established at trial. The trial court allowed two nonexpert witnesses to testify
about their perceptions of appellant's lack of self-esteem, his need for others' approval,
and his engaging in menial tasks to please others. Moreover, Dr. Quijano's testimony that
appellant could have been motivated by a dependence on Manyoma would not necessarily
exclude the possibility that he could have also been motivated by money. Appellant's
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confession reveals three motives: first, to help out Manyoma; second, to prevent
Manyoma from going to jail; and third, to receive money. We overrule point of error 10.
In his final point of error, appellant contends the trial court erred by
admitting into evidence a tape and transcript of a conversation between appellant and
Manyoma without a limiting jury instruction.
Manyoma was the initial suspect in the murder of the complainant. At the
request of police officers investigating the murder, appellant voluntarily agreed to wear a
"wire" to tape a conversation with Manyoma. At trial, the State offered into evidence a
tape and a transcript of the covertly recorded conversation between appellant and
Manyoma. Appellant objected to the evidence as hearsay; the State responded that the
evidence was being offered not for its truth, but simply to show that the conversation
occurred. The court allowed the tape and transcript into evidence. Appellant requested
the following limiting instruction, which was refused:
There has been admitted in evidence testimony relating to
certain taped conversations between the Defendant and
Franklin Manyoma. This evidence was not admitted for the
purpose of establishing the truth of the matter contained in
said conversations but to assist you, if it does, in determining
[to be filled in because counsel did not know the reason for
admitting the tape].
The recorded conversation shows appellant in the position of trying to elicit
incriminating statements from Manyoma without alerting police to appellant's own role in
the murder. Therefore, much of the conversation is nonsensical. Initially, during the
conversation, Manyoma is obviously confused about appellant's persistence in questioning
him about the details of the murder that appellant had committed. Finally, however,
Manyoma appears to suspect that appellant is attempting to set him up as the trigger
man. Manyoma then begins questioning appellant about appellant's own role in the
murder, which appellant denies. Although both appellant and Manyoma denied any
participation in the murder during the conversation, the context indicates that they both
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knew details of the murder that they attempted to blame either on each other or on third
parties.
Texas Rule of Criminal Evidence 105(a) states:
When evidence which is admissible ... for one purpose but
not admissible ... for another purpose is admitted, the court,
upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly; but, in the absence of such
request the court's action in admitting such evidence without
limitation shall not be a ground for complaint on appeal.
See Mcintosh v. State, 855 S.W.2d 753, 768 (Tex. App.-Dallas 1993, pet. refd).
The party opposing the admission of the evidence has the burden of
requesting the correct limiting instruction at the trial. Plante v. State, 692 S.W.2d 487, 493
(Tex. Crim. App. 1985). Appellant preserved error for appeal by objecting to the
admission of the tape and transcript and by requesting the limiting instruction.
Where evidence is offered for a specific purpose, the party opposing its
admission is entitled to a limiting instruction informing the jury of the limited purpose of
the evidence. Porter v. State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986). Here, the
evidence was offered not for its truth, but for the purpose of proving that the conversation
between appellant and Manyoma actually occurred. Because of the limited use of the
evidence, appellant was entitled to a limiting instruction that he requested and the trial
court refused. See Tex. R. Crim. Evid. 105(a). The trial court erred when it did not
instruct the jury on the limited purpose for which the evidence was admitted. See Porter
709 S.W.2d at 216.
Even though the trial court erred in denying appellant's requested jury
instruction, the judgment will not be reversed if we determine beyond a reasonable doubt
that the error made no contribution to the conviction. Tex. R. App. P. 81(b)(2). To
make this determination, we examine the record for other evidence showing that a
conspiracy existed for appellant to kill the complainant for remuneration.
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The record shows that Lee and Victor Garza testified that when Manyoma
asked them to do the killing for money and a pistol, appellant was present. Appellant,
both in his confession and at trial, admitted to being present. Moreover, in his confession
appellant stated, "I knew he would give me money." He further stated in his confession
that after the killing, "[w]hile we were riding back to my house, Franklin told me that he
would pay seven or eight thousand dollars. He claimed that he had the money in a bank
account but could not get it." After the killing, appellant walked up to a group of people,
including Manyoma and Lee Garza, patted Manyoma on the back and said, "So when are
you going to pay me?" Based on this evidence, we find beyond a reasonable doubt that
the error made no contribution to the conviction. We overrule point of error 11.
We affirm the trial court's judgment.
Isi Lee Duggan. Jr.
Lee Duggan, Jr.
Justice
Justices Mirabal and Wilson also sitting.
Publish. Tex. R. App. P. 90.
Judgment rendered and opinion delivered July 14, 1994.
True Copy Attest:
y
r-2
Margie Thompson
Clerk of Court
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