Richard Trent Schneider v. State

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB Opinion issued November 3, 2005 In The Court of Appeals For The First District of Texas No. 01-04-00868-CR RICHARD TRENT SCHNEIDER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 925450 MEMORANDUM OPINION Appellant Richard Trent Schneider pleaded not guilty to capital murder, a jury convicted him, and the trial court assessed punishment at life imprisonment. Schneider contends that (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred in admitting a photograph of the victim with his young son; and (3) the State’s closing argument was improper. We hold that the evidence is legally and factually sufficient to support the conviction and that Schneider failed to preserve error with respect to the admissibility of the photograph and the propriety of the State’s closing argument. We therefore affirm. Facts The State charged Schneider with the robbery and murder of James Allen Turner. Turner lived with his girlfriend, Roxanne Ochoa, in a house at 5431 Firefly, Harris County, Texas. Several others also lived at the house, including Alecia Mahoney. Turner did not have a job and supported himself by selling cocaine and marijuana. Turner and Ochoa used to put their cocaine in a small zippered black bag. The owner of the house, Sammy, wanted to evict Turner and Ochoa because of their drug activities. Sammy sent Michael Whitmire, Jason Ray, and Schneider to do the job. The three men decided that since Sammy was not going to pay them for their services, they would get what they could from Turner in the way of drugs and money. When the three men arrived at the house on the evening of September 22, 2002, Turner was not there. The men sat around smoking and eating cereal, waiting for Turner to arrive. After approximately thirty minutes, Alecia left the house and used a pay phone to call Turner to tell him the three men were waiting for him. She returned and stated that Turner would arrive shortly, but the three men left at that point, saying they would be back later. Turner returned to the house a short time later and told Ochoa that he had encountered the three men in the street. At that point, Turner’s dog began barking and the three men entered the house. Ray grabbed Ochoa and held a knife against the side of her face. Someone else pointed a gun straight at Turner,[1] the gun discharged, and Turner fell to the ground. The three men then ran to the door, struggled to open it, and fled the scene. Ochoa ran to Turner and saw he had a bullet wound to the head and no pulse. Alecia ran next door to Sammy’s house and called the police. Sergeant Michael Bozeman and Officer Mike Walker, Houston Police Department, Homicide Division, arrived at the scene, conducted an investigation, and developed the names of two suspects: Michael Whitmire and Jason Leon Ray. Sergeant Bozeman subsequently interviewed Whitmire and Ray, who gave him the name of a third suspect: Richard Trent Schneider. The police arrested Schneider, who voluntarily gave a videotaped statement to Sergeant Bozeman. Schneider stated that Sammy wanted Turner out of the house because he was involved in drugs. Whitmire was the most motivated to get Turner out of the house, and he, Ray, and Schneider decided to do the job and get what they could from Turner in the way of drugs and money since Sammy was not going to pay them. The three men went to the house, but just sat around eating cereal because Turner was not there. The men got nervous when Alecia left to call Turner and decided to leave. The men bumped into Turner in the street and Whitmire insisted on returning to the house. Schneider was scared and tried to give the gun back to Whitmire since he was the one so intent on returning to the house, but Whitmire refused to take the gun. The men then returned to the house and saw Turner coming out of the bedroom. Schneider pointed the gun at Turner, thinking they could just get a bag Turner had around his neck and get out. Schneider pulled the hammer back on the gun, thinking the sound of the cocking mechanism would scare Turner enough so that “everything would just stop.” The gun then discharged and Turner fell to the ground. Whitmire started screaming, “Get the bag.” At that point, the three men ran out of the house. According to Schneider, the shooting was an accident. Schneider told Sergeant Bozeman that the .38 Special revolver he used in the shooting was still “in between the split seats in the front” of the car in which he had been arrested. Sergeant Bozeman called Officer Earnest Aguilera, Houston Police Department, Crime Scene Unit, and told him to go to Northside Storage at 36 Tidwell to recover a gun. Officer Aguilera recovered a .38 Special revolver, which was wedged in between the front seat and the hump of the car, from the white Nissan Altima in which Schneider had been arrested. The revolver was in a holster and loaded with four live rounds. A firearms examiner testified that the bullet recovered from Turner’s body was fired from the .38 Special revolver found in the white Nissan Altima. The revolver has a 4 1/4 to 4 1/2 pound pull in single action mode, and a 12 3/4 pound pull in double action mode, and cannot be fired without putting a finger on the trigger. The medical examiner testified that Turner was shot between the eyes, on the left side of the nasal bridge, and died as a result of a penetrating gunshot wound of the head. Analysis Legal Sufficiency Schneider contends that the evidence is legally insufficient to support his capital murder conviction because there is no evidence, other than his confession, that he intended to commit a robbery. Thus, Schneider asserts, the State failed to prove the corpus delicti for the underlying offense of robbery.[2] In reviewing a legal insufficiency claim, we view the evidence in the light most favorable to the verdict and decide whether a 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). A person commits capital murder when he commits murder as defined under Texas Penal Code Section 19.02(b)(1) and intentionally commits the murder in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). A person commits murder under Texas Penal Code Section 19.02(b)(1) when he intentionally or knowingly causes the death of an individual. Id. § 19.02(b)(1). A person commits robbery when he, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 29.02(a)(1). A person commits theft as defined in Chapter 31 when he unlawfully appropriates property with intent to deprive the owner of the property. Id. § 31.03(a). The corpus delicti rule, which is a rule of evidentiary sufficiency, provides that an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; other evidence must exist to show that a crime has in fact been committed.[3] Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000). This other evidence, known as the “corpus delicti,” need not be sufficient by itself to prove the offense: “all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence.” Id. (quoting Chambers v. State, 866 S.W.2d 9, 15-16 (Tex. Crim. App. 1993)). In addition, the independent evidence need not connect the defendant to the crime—it need only show that a crime was committed. Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994). In a capital murder case, the corpus delicti requirement extends to both the murder and the underlying offense (here, robbery). Rocha, 16 S.W.3d at 4-5; Hammond v. State, 942 S.W.2d 703, 706 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Schneider points out that the only witness to the offense, Ochoa, testified that she never heard the three perpetrators say anything to the effect of “[g]ive me the black bag or I’m robbing you or anything like that[.]” Nor did she ever see the three men try to steal anything. According to Schneider, the only evidence that the three men even thought about committing a robbery comes from his own confession, which is insufficient under the corpus delicti rule. We disagree. Ochoa testified that she and Turner kept their cocaine in a small black bag that was missing after the murder. This independent evidence corroborates Schneider’s statement that he and the other two men intended to take drugs from Turner, and that Schneider pointed the gun at Turner in an effort to get the black bag he had around his neck. While the corroborating evidence would be even stronger if, for instance, the police had found the black bag in Schneider’s possession after the murder,[4] the quantum of independent evidence necessary to corroborate the corpus delicti in a criminal prosecution relying upon the extrajudicial confession of an accused need not be great. So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served. Gribble v. State, 808 S.W.2d 65, 71–72 (Tex. Crim. App. 1990) (citation and footnote omitted) (holding that, in capital murder case involving corpus delicti of kidnapping, “[w]hile there is little, apart from appellant’s confession, to suggest that . . . the deceased[] was moved from her residence without her consent and while still alive to the place where her body was ultimately discovered, we are not persuaded that the record is utterly devoid of evidence to this effect[,]” and thus, “any rational trier of fact could have found that there was some evidence that the corpus delicti of kidnapping was sufficiently corroborated”). In addition, there are other indicia of aggravated robbery in this case. Ochoa saw Schneider and the other two men enter the house carrying deadly weapons and saw the “guy with the gun . . . point[] it straight at Jay [Turner].” After the shooting, she observed the three men “r[u]n to the door[,]” struggle to open it, and then “r[u]n out” once it opened. Ochoa also testified that Turner supported himself by selling drugs since he did not have a job, and that she believed the men came to the house intending to buy cocaine from Turner. Viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have found that based on these facts, and because Ochoa testified the black bag was missing after the murder, there was some evidence that the corpus delicti of robbery was adequately corroborated so as to find beyond a reasonable doubt that Schneider committed the murder in the course of committing a robbery. See id. at 73; see also Purser v. State, 902 S.W.2d 641, 647–48 (Tex. App.—El Paso 1995, pet. ref’d) (in capital murder case, holding that, although victim’s employer could not state with certainty that anything had been taken from his desk, corpus delicti of robbery was established where someone had rummaged through the desk, and bloody footprint behind desk led to inference that perpetrator stepped behind desk to look through desk drawers). Accordingly, we overrule Schneider’s first issue. Factual Sufficiency Schneider contends that the evidence is factually insufficient to support his capital murder conviction because his confession clarifies that he never intended to hurt anyone when he went to Turner’s house. Schneider points out that Ochoa testified she never heard the shooter make any demands before firing the gun; thus, the evidence “strongly suggests that the gun went off accidentally.” According to Schneider, this inference is buttressed by the fact that he wasn’t angry at Turner (indeed, he didn’t even know Turner), and he willingly gave a statement to the police and directed them to the gun. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We may not substitute our own judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In a capital murder case, the jury may infer intent to kill from the use of a deadly weapon unless it would be unreasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Ochoa testified that the “guy with the gun” had it in his right hand and was “pointing it straight at Jay [Turner].” The next thing she knew “the gun went off” and the face of the shooter “wasn’t shocked. It was kind of like -- it was kind of like a laugh, like a grin. You know, how like when a kid does something wrong and they laugh about it. Like it was -- like it didn’t bother him at all, like it was nothing.” The medical examiner testified that the bullet entered Turner’s “nose on the left side of the bridge between the eyes” and that the cause of death was a “[p]enetrating gunshot wound of the head.” The .38 Special revolver Schneider told the police he used in the shooting was found wedged between the front seats of the vehicle in which he was arrested. While Schneider claims that the evidence shows the shooting was unintentional and the only reason he pulled the hammer back on the gun was because he thought the sound of the cocking mechanism would scare Turner enough so that “everything would just stop,” firearms examiner Stein testified that the .38 Special revolver could not be fired without putting a finger on the trigger because of the revolver’s safety mechanism. Stein also testified that the revolver has a 4 1/4 to 4 1/2 pound trigger pull in single action mode and a 12 3/4 pound trigger pull in double action mode, meaning “I can hang a bag of sugar, which is sold at four pounds right now . . . from there and [the] firearm would still not fire.” The jury could have found that had Schneider really intended to use the revolver merely to scare Turner, as he stated in his confession, he could have removed the bullets. Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Ochoa also testified that after the shooting, the three men “ran to the door[,]” struggled to open it, and then “ran out” once it opened. Evidence of flight may evince a consciousness of guilt. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Thompson v. State, 691 S.W.2d 627, 630 (Tex. Crim. App. 1984) (holding evidence sufficient to establish intent to kill for capital murder conviction because defendant shot victim at close range and fled scene). Even viewing the evidence in a neutral light and considering Schneider’s exculpatory statements and cooperation with the police, the evidence is sufficient to support Schneider’s conviction. The jury was well within its discretion to disbelieve Schneider’s self-serving statements to the police, Bustamante v. State, 106 S.W.3d 738, 741 (Tex. Crim. App. 2003), and we accord due deference to the jury regarding the weight and credibility of the evidence. Jones, 944 S.W.2d at 648–49 (citing Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996)). The evidence supporting Schneider’s guilt is not so weak or so against the overwhelming weight of the contrary evidence as to render the jury’s verdict clearly wrong and manifestly unjust; therefore, we hold that the evidence is factually sufficient to support the conviction. Admissibility of Photograph Schneider contends that the trial court abused its discretion by admitting a photograph of Turner with his young son. Schneider urges that the photograph has no probative value because the State introduced another photograph of Turner from the scene of the shooting that “certainly was much more germane to the point at issue.” Schneider further asserts that the photograph was offered solely for the purpose of inflaming the jurors’ sympathies. Thus, according to Schneider, the trial judge should have excluded the photograph under Texas Rule of Evidence 403. We hold that Schneider failed to preserve this issue for review. At trial, when the State tendered the photograph of Turner with his son, defense counsel objected as follows: MR. RODRIGUEZ: Well, Judge, it kind of shows him to be a -- you know, a loving dad and all. That’s not the issue, Judge. And they’ve got to come up with another photograph. MR. DIEPRAAM: I don’t have any other photographs. That’s it. THE COURT: Okay. Hang on one second. Well, although this picture shows him as a dad or whatever, the testimony is out that he was a drug dealer not living with the kid or taking care of the kid. So, I’m going to admit it. Okay. MR. RODRIGUEZ: Okay, Judge. “Texas Rule of Evidence 403 must be specifically invoked in order to preserve error under that rule.” Schultze v. State, No. 01-02-00210-CR, slip op. at 26, 2005 WL 90731, at *11 (Tex. App.—Houston [1st Dist.] Jan. 13, 2005, pet. filed) (op. on reh’g) (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g)); Tex. R. App. P. 33.1. In addition, because “Rule 403 provides five distinct grounds for excluding otherwise relevant evidence[,]”[5] even if a party does object to the admission of evidence on “general Rule 403” grounds, such an objection is not adequate because it “force[s] the trial judge to determine which of the five specific grounds [is] applicable [and t]hus [does] not give the judge any specific ground on which to rule.” Williams v. State, 930 S.W.2d 898, 901 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). Here, Schneider did not specifically invoke Rule 403, and his objection did not mention any of the five grounds for excluding evidence under Rule 403. While he now argues on appeal that the probative value of the photograph is substantially outweighed by the danger of unfair prejudice, all he told the trial judge was that the photograph showed Turner to be “a loving dad and all,” but not Rule 403 or any of the five specific grounds upon which to base an objection. Thus, his objection was insufficient to preserve error. Id.; see also Molitor v. State, 827 S.W.2d 512, 518–19 (Tex. App.—Austin 1992), appeal permanently abated, 862 S.W.2d 615 (Tex. Crim. App. 1993) (in murder case where appellant objected that two photographs showing deceased with his children were “irrelevant and prejudicial[,]” holding that objection was “too broad, general and global” to preserve error under Rule 403). Accordingly, we overrule Schneider’s third issue. Jury Argument In his final issue, Schneider asserts that the prosecutor misstated the facts during closing argument. In closing, the prosecutor addressed Ochoa’s testimony regarding the identity of the shooter as follows: Next thing is Roxie’s identification of Mike Whitmire. Yeah, that’s kind of important. But does anybody really believe that Mike Whitmire did the shooting? . . . Sergeant Bozeman did a good job -- a very good job of realizing that Roxie was just a little bit too traumatized by the event to give a full and accurate detail of the shooting. Keep in mind -- first of all, she knows Mike. . . . . So, because she knows Michael Whitmire, she said Mike did the shooting. But why did she tell the police when the police came out there on September 22nd and September 23rd, I didn’t see who did the shooting. And I don’t know who did the shooting. I don’t know who had the gun. Schneider contends that the prosecutor misstated the facts because Ochoa testified that she “may have” told the police when they interviewed her immediately after the shooting that she wasn’t exactly sure who was holding the gun, but she really couldn’t remember exactly what she told the police. We hold that Schneider failed to preserve this issue for review. “[A] defendant’s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979) (“An objection to argument must be pressed to the point of procuring a ruling or the objection is waived.”). A trial judge’s response that “the jury w[ill] remember the evidence” is not a ruling on the objection and is insufficient to preserve error. DeRusse, 579 S.W.2d at 235; Mayberry v. State, 532 S.W.2d 80, 84 (Tex. Crim. App. 1976) (op. on reh’g) (“[j]ury will recall the evidence” does not preserve error); Nichols v. State, 504 S.W.2d 462, 464–65 (Tex. Crim. App. 1974) (same). Although Schneider objected to the State’s closing argument, the trial court did not rule on Schneider’s objection. Rather, the trial court responded by instructing the jury to “recall the testimony that you heard in here in trial. That’s the evidence, what you heard in the testimony.” Because the trial court did not rule on Schneider’s objection, Schneider may not complain about the State’s jury argument on appeal. See Cockrell, 933 S.W.2d at 89; DeRusse, 579 S.W.2d at 235; Mayberry, 532 S.W.2d at 84; Nichols, 504 S.W.2d at 464–65. Accordingly, we overrule Schneider’s fourth issue. Conclusion We conclude that the evidence is legally and factually sufficient to support Schneider’s capital murder conviction. We further conclude that Schneider did not properly preserve error with respect to the admissibility of the photograph or the propriety of the State’s closing argument. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b). [1] Ochoa testified that she believed the shooter to be Mike Whitmire. However, she also testified that she “may have” told Sergeant Michael Bozeman at the scene of the shooting that she wasn’t exactly sure who was holding the gun because she was so scared. [2] Schneider does not contend that the State failed to prove the corpus delicti for the underlying offense of murder. [3] The primary purpose of the corpus delicti rule “is to assure that no person [is] convicted without some independent evidence showing that the very crime to which he confessed was [actually] committed [by someone].” Gribble v. State, 808 S.W.2d 65, 71 (Tex. Crim. App. 1990). [4] See, e.g., Hammond, 942 S.W.2d at 707 (corpus delicti of robbery was established in part by independent evidence that police found victim’s property in appellant’s house). [5] Texas Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.