Roosevelt McBride v. State

NUMBER 13-99-238-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

__________________________________________________________________

ROOSEVELT McBRIDE

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

__________________________________________________________________

On appeal from the 248th District Court of Harris County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Chief Justice Seerden

Roosevelt McBride, appellant, was convicted by a jury of sexual assault. Tex. Penal Code Ann. §22.011 (Vernon 2000). The trial court entered a judgment in conformity with the verdict and sentenced appellant to life imprisonment. By three issues, appellant argues that the trial court violated his federal constitutional right to confrontation and cross-examination and that the evidence against him was either legally or factually insufficient to support a conviction.

By his first issue, appellant contends that the trial court committed reversible error in violating his federal constitutional right to confrontation and cross-examination. See U.S. Const. amend. VI & XIV. Appellant's complaint centers on the testimony of his own witness. During his case-in-chief, appellant called Kadidra Esco, the half-sister of the complainant. Kadidra testified generally that the complainant did not like appellant. As part of her testimony, the following colloquy took place:

Defendant's Counsel: Did you ever have an opportunity, not from what anyone else said or anyone influence [sic] you or anything, but just your personal observations and things that you personally heard from your sister Katrina [the complainant], did you ever observe anything about her attitude toward her relationship with your stepfather, Roosevelt McBride?

* * * *

A: She doesn't like him. She always said that.

The State: I object to any hearsay.

The Court: That's sustained.

Defense Counsel: She's objecting to what?

The Court: Hearsay.

* * * *

Q: Did Katrina make any statements in your presence about her attitude toward the marriage between your stepfather and your mother?

The State: I object to hearsay.

The Court: That's sustained.

Defense Counsel: Your Honor, that was brought up already. I'm just impeaching what Katrina said.

The Court: Not that way. That's sustained.

Q: Did you observe any arguments between your stepfather and Katrina?

A: There really wasn't [sic] like arguments. It was just disagreements, something like that. It wasn't really like arguments. She -- they just didn't get along. . . .

Q: Did Katrina ever say she was going to get even with Roosevelt?

A: I don't recall. I don't recall getting even. I don't recall if she was saying she get [sic] even with him or anything. She just was always saying she just didn't want to live there.

Appellant contends that because he was not allowed to ask Kadidra if the complainant ever made any statements regarding her attitude about appellant, he was effectively denied an opportunity to show bias.

We note initially that the right of confrontation is generally not implicated where the witness is not a witness against the defendant. See e.g., Dedesma v. State, 806 S.W.2d 928, 933 (Tex. App.--Corpus Christi 1991, pet. ref'd). Here, Kadidra was not a witness against appellant, but was, instead, his own witness. Accordingly, appellant's contention that his right to confrontation was violated is misplaced. Appellant has cited us to no authority to refute that conclusion.

Nevertheless, reaching the merits of appellant's issue, we note that complaints regarding violations of the confrontation clause are subject to harmless error analysis. In reviewing alleged constitutional errors, "the reviewing court will reverse the conviction . . . unless it concludes beyond a reasonable doubt that the error did not contribute to the conviction. . . ." Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999). Here, it is evident from the above excerpt that appellant was not deprived of an opportunity to question Kadidra about her sister's purported bias or prejudice. Notwithstanding the court's ruling, appellant was able to question the witness about the subjects he desired. We are convinced beyond a reasonable doubt that the error, if any, did not contribute to the conviction. Appellant's first issue is overruled.

We next turn to appellant's third issue, by which he contends the evidence was factually insufficient to support his conviction. We begin a factual sufficiency review with the assumption that the evidence is legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We then look to all of the evidence in the record to determine if the verdict is "against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." Id. at 135.

Appellant's brief states his specific contention that the evidence is factually insufficient because "the complainant's testimony incriminating appellant was not credible." The court of criminal appeals recently held that

unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.

Johnson v. State, 2000 WL 140257, **6 (Tex. Crim. App. 2000).

Here, the testimony at trial was contradictory. The complainant testified that she recognized appellant as her attacker. She described how the offense occurred and testified to the words her attacker spoke before, during, and after the attack. Moreover, the physician who examined the complainant after she reported the attack testified that the results of his examination were "inconclusive." Appellant's identification witnesses testified that they were in the home on the evening of the attack. Each stated that he or she was in a position to observe whether appellant left his bedroom and entered the complainant's room. Each stated that appellant did not enter the complainant's room.

This is a situation where the evidence is in direct opposition. Neither the complainant nor appellant's witnesses were equivocal. Under those circumstances, it is solely the province of the jury to assess credibility and weigh the testimony. See Johnson, 2000 WL 140257, **6.⁽¹⁾ Here, the jury observed the witnesses and chose to believe the complainant and disbelieve appellant. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Appellant's third issue is overruled.

We hold that the evidence was factually sufficient to support the conviction. We need not assess the legal sufficiency of that evidence. See Clewis, 922 S.W.2d at 134; see also Tex. R. App. P. 47.1

The judgment is AFFIRMED.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 8^th day of June, 2000.

1. In Johnson, the court of criminal appeals affirmed this court's refusal to defer to the jury on a factual sufficiency challenge. In that case, however, the complainant was unsure in her identification and there was other evidence to suggest that the defendant may not have been involved in the crime. This case is distinguishable from that one because the complaining witness's testimony was unequivocal.