Roderick Gore AKA Michael D. Lewis v. State

Affirmed and Memorandum Opinion filed February 15, 2006

Affirmed and Memorandum Opinion filed February 15, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01017-CR

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RODERICK GORE a.k.a. MICHAEL D. LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 999,999

M E M O R A N D U M   O P I N I O N

A jury found appellant, Roderick Gore, guilty of aggravated robbery and sentenced him to forty-three years in the Texas Department of Corrections. Appellant raises three issues on appeal.  First, he claims that the trial court erred in overruling his objection to the State=s comment on his silence during its closing.  Second, he claims that the trial court erred in allowing testimony of his flight at arrest.  Third, appellant claims that the trial court erred in overruling his objection to the State=s expert witness, who had not been specifically named.

Factual Background

On July 19, 2004, appellant and two or three other men knocked on the door of complainant=s apartment. When she opened the door, appellant came through the door and pointed a gun at complainant=s head and chest.  The appellant and the other men held the complainant, her one-year-old, and her brother at gunpoint, as the intruders ransacked the apartment looking for drugs.  The men eventually concluded that they had come to the wrong apartment.  They took money and jewelry and then left.

Complainant later identified appellant in a photo spread, and officers obtained a warrant for appellant=s arrest.  As Officer Ellis attempted to execute the arrest warrant, the appellant fled and ran through the yards of several homes before being apprehended by police. 

Analysis

I. Statement that Testimony was Uncontradicted Was Not a Comment on Appellant=s Silence

At closing argument during the guilt/innocence stage of trial, the State began by saying, ALadies and gentlemen, there is no evidence in this case that contradicts [complainant=s] testimony.@  Appellant contends that this is a comment on his silence, because to contradict complainant=s testimony, appellant would have either had to testify himself or call one of the other robbers, since these were the only other people in the apartment at the time of the robbery.

A. Standard of Review and Applicable Law

We review de novo mixed question of law and fact, as long as the resolution of those questions do not turn on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We, therefore, review de novo whether the State=s argument was an impermissible comment on appellant=s right to remain silent.

The failure of a defendant to testify on his own behalf may not be taken as a circumstance against him, nor may it be alluded to or commented on by counsel.  Tex. Code Crim. Proc. art. 38.08.  Any comment by counsel regarding the failure of a defendant to testify violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the Fifth Amendment of the United States Constitution and Article I,   Section 10, of the Texas Constitution.  Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001).  We must view the language from the standpoint of the jury, and consider Awhether it was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant=s failure to testify.@  Id. at 765.  It is not enough that the language might be construed as an implied or indirect allusion to the defendant=s failure to testify.  Id.

Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not amount to a comment on the failure to testify.  Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).  But when the State=s argument points to a lack of evidence that only the defendant himself can supply, it is error.  Id.

B. Contradictory Evidence Could Have Come From Sources Other Than Appellant

Appellant cites several cases for the proposition that he was the only person who could have countered complainant=s testimony. The  factual scenarios of these cases, however, are distinguishable from the facts in this case.  Several of the cases cited by appellant contain a literal comment on the defendant=s failure to testify.  Lee v. State, 628 S.W.2d 70, 71 (Tex. Crim. App. [Panel Op.] 1982), abrogated on other grounds by Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990); Myers v. State, 573 S.W.2d 19, 20 (Tex. Crim. App. [Panel Op.] 1978);  Koller v. State, 518 S.W.2d 373, 375 (Tex. Crim. App. 1975);  Dubose v. State, 531 S.W.2d 330, 331 (Tex. Crim. App. 1975).  However, here, the State said that complainant=s testimony was uncontradicted, not that appellant himself failed to contradict it. 

Appellant cites three other cases in which the State=s argument was similar to the argument in this case.  In each of these cases, the court found that only the defendant could have provided the contradiction alluded to by the State.  Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. [Panel Op.] 1982); Pollard v. State, 552 S.W.2d 475, 477 (Tex. Crim. App. 1977);  McDaniel v. State, 524 S.W.2d 68, 70 (Tex. Crim. App. 1975).  However, again, each of these cases involve facts different from the facts in the present case.  In the cases appellant cites, only the defendant could have contradicted the complainant=s testimony because, in each of those cases, only the defendant and the complainant were present during the crime.  Appellant=s case is different in two ways.  First, several other men were alleged to have committed the robbery.  See, e.g., Hargett v. State, 534 S.W.2d 909, 911B12 (Tex. Crim. App. 1976) (holding that two others arrested in connection with the same burglary as appellant could have testified in refutation of the State=s evidence; therefore,  prosecutor=s remarks that evidence was undisputed were not improper); Gorman v. State, 480 S.W.2d 188, 190 (Tex. Crim. App. 1972) (same).  Second, the appellant contests whether he was even at the scene of the crime.  Evidence contrary to appellant=s would be available from alibi witnesses or other sources.  See, e.g., Bolden v. State, 504 S.W.2d 418, 420 (Tex. Crim. App. 1974); Nowlin v. State, 507 S.W.2d 534, 536B37 (Tex. Crim. App. 1974). 

Thus, unlike the cases appellant has cited in which there were no other possible sources of countervailing evidence, in this case other sources could have existed besides the testimony of the complainant and appellant.  We hold that the State=s comment during closing was not a comment on the silence of appellant, and the trial court did not err in overruling appellant=s objection.  We overrule appellant=s second point of error.

II. Allowing Evidence of Appellant=s Flight Was Not Error

During the guilt/innocence stage, appellant objected to the admission of evidence that he fled police.  His first objection was based on relevance, arguing that because appellant did  not know there was a warrant for his arrest for the crime at issue, his flight cannot be taken as circumstantial evidence of his guilt for that crime.  He also argued that evidence of his flight would be inadmissible as substantially more prejudicial than probative under Texas Rule of Evidence 403. 

A. Standard of Review

The standard of review when an appellate court considers a ruling under the rules of evidence is abuse of discretion.  Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).  We therefore, consider rulings on relevance and Rule 403 objections under an abuse of discretion standard.

B. Appellant Failed to Meet His Burden of Proof

Evidence of flight from police is admissible as circumstantial evidence of guilt.  Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994).  The evidence of flight must have some legal relevance to the offense under prosecution.  Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975).  In order to have such evidence excluded on the basis of a relevance challenge, the defendant has the burden to show affirmatively that the flight is directly connected to some other transaction and further show that it is not connected with the offense on trial.  Id.  Merely showing that other charges are pending is insufficient to satisfy the defendant=s burden.  Id.  

Here, the appellant made no affirmative showing that his flight was not connected with the offense at trial.  Appellant=s counsel informed the trial court that appellant did not know about the charges in this case, and that there were two other outstanding warrants for his arrest.  Evidence that he did not know of the warrant for his arrest, however, is not affirmative evidence that he was fleeing for a reason other than his guilt for the aggravated robbery.  Appellant=s showing was, at best, weak circumstantial evidence that appellant had reasons for running apart from  guilt for the crime at issue in this trial; this evidence did not establish that appellant=s flight was unconnected to the offense for which he was being tried. Thus, we cannot say that the trial court abused its discretion in finding that appellant did not meet his burden.^[1] 

C. No Abuse of Discretion in Overruling Rule 403 Objection

A party may have evidence excluded, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403.  The term unfair prejudice refers to an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.  Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).  The appellant fails to point out what concerning the flight from police is improper.  We see no tendency of the evidence to suggest a decision on an improper basis.  Thus, we hold that the trial court did not abuse its discretion in overruling appellant=s Rule 403 objection.

Appellant seems to argue also that the Rule 403 objection should have been sustained because the evidence that tended to rebut the inference of guilt from appellant=s flight, i.e. the prior offenses, would have been too prejudicial, had it been elicited on cross-examination.  The unfair prejudice in Rule 403 must come from the offered evidence itself, not from evidence that would have to be offered in rebuttal.  See Tex. R. Evid. 403.  To the extent this argument constitutes a separate appellate issue, it is also overruled.

III. Allowing Testimony from Fingerprint Expert Was Not Error

Appellant complains in his third issue that the trial court, in the punishment phase of trial, erred in permitting the State to present Deputy James Dalrymple, a fingerprint expert witness from the Sheriff=s Office who was not identified by name in the State=s designation of experts.  The State merely disclosed that it would present a crime scene investigator from the Harris County Sheriff=s Office Identification Division for Afingerprint comparison and testimony.@ 

A. Standard of Review

When a witness whose name is not on the list provided by the State is permitted to testify at trial, the standard of review is whether the trial court abused its discretion in allowing the witnesses to testify.  Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986).  We examine two factors to decide if there was an abuse of discretion: 1) whether the State=s actions constituted bad faith, and 2) whether appellant could have reasonably anticipated the testimony of Deputy Dalrymple.  See Nobles v. State, 843 S.W.2d 503, 514B15 (Tex. Crim. App. 1992). 

B. Appellant Failed to Show Harm

Even though nothing in the record indicates bad faith on the part of the State, we will assume arguendo that there was an abuse of discretion by the trial court because the defendant could not have reasonably anticipated precisely which fingerprint expert from the Harris County Sheriff=s Office would testify.  Even assuming an abuse of discretion, no harm or prejudice is shown.  See Tex. R. App. P. 44.2.  Appellant failed to request a continuance or recess so that he could carry out any further investigations of Deputy Dalrymple.  See Hernandez v. State, 819 S.W.2d 806, 816 (Tex. Crim. App. 1991) (holding that failure to request a delay in trial to interview witness or investigate matters related to his testimony prevented appellant from showing harm). 

Appellant has not identified any harm from not knowing exactly which analyst would testify. Appellant knew, or should have known, the general substance of the testimony that would come from the fingerprint analyst.  Therefore, he cannot complain of harm from the content of the testimony, or from a lack of opportunity to locate rebuttal testimony.  In fact, appellant did not even attempt to challenge the fingerprint analyst=s testimony, even though he had almost one month=s notice that a fingerprint expert from the Harris County Sheriff=s Office would testify. 

Since appellant knew the type of testimony that would be given, any harm would have to come from not knowing the identity of the witness.  However, appellant has not shown any impeachment evidence that he would have used against Deputy Dalrymple, had he known the witness=s identity in time to gather such evidence. Nor has appellant alleged any other harm flowing from the State=s failure to identify the fingerprint expert by name.

We hold that the appellant suffered no harm by the State=s failure to identify by name its fingerprint expert.  We therefore overrule his third point of error.  See Tex. R. App. P. 44.2.

Conclusion

Having overruled each of appellant=s three points of error, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2007

Panel consists of Justices Fowler, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We also note that the case law suggests an attorney=s statements to the court are not enough to make this affirmative showing.  Rather, an offer of proof seems to be the appropriate vehicle.  See Wockenfuss, 521 S.W.2d at 632 (stating that issue could have been raised if appellant had taken stand outside jury=s presence to testify that flight occurred because of a different charge or circumstance); Damron v. State, 58 Tex. Crim. 255, 125 S.W. 396 (1910) (reciting testimony given by appellant in his Abill@ as grounds for reversal).