Tyran Lewis v. State

NO. 07-07-0425-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 28, 2008 ______________________________ TYRAN LEWIS, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY; NO. 2664; HON. DAVID M. MCCOY, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Tyran Lewis (appellant) appeals his conviction for possession of cocaine with the intent to deliver. Via two issues, appellant contends the trial court erred by failing to grant 1) his motion for mistrial due to jury misconduct and 2) his motion for new trial based on jury misconduct. We affirm. Background Appellant pled guilty to the charged offense and a punishment hearing was held before a jury. During deliberations on punishment, the jury sent out a note containing four questions. The question which appellant now complains about read: “Question 4 what is the time he [appellant] would serve if 15 years were imposed? (In other words, what is the minimum time served?) (Good conduct time).” The trial court responded as follows: “[r]efer to Section 3 of the charge for all the information needed for Question 4.” That portion of the charge contained information regarding good conduct time and parole. It further included the following instruction: “You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.” Moreover, there was no objection to the trial court’s response. However, appellant’s trial counsel did move for a mistrial based on the jury’s improper consideration of “good conduct time in their deliberation of punishment.” The trial court overruled the motion. The jury assessed punishment at fifteen years in prison along with a fine and restitution. After the trial court sentenced appellant, counsel re-urged his motion for mistrial and indicated that he would file a motion for new trial. The trial court denied the mistrial and advised counsel that it would consider a written motion for new trial. On August 6, 2007, appellant filed a motion for new trial wherein he claimed he was “deprived of a fair and impartial trial as a result of the misconduct or improper deliberation of the jury.” It too was overruled. Issues One and Two: Jury Misconduct Appellant contends in both of his issues that the jury “improperly considered the [a]ffect of good conduct time and . . . parole law . . .” in assessing punishment. We overrule the issues. Standard of Review In reviewing a trial court’s denial of a motion for mistrial or for new trial, we determine whether it abused its discretion. See Yates v. State, 171 S.W.3d 215, 220-21 (Tex. App.–Houston [1st Dist.] 2005, pet. ref'd) (there holding that the motion for mistrial was the functional equivalent of a motion for new trial, the review of which was governed by the standard of abused discretion); see also State v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.–Dallas 1991), aff'd, 855 S.W.2d 692, 696 (Tex. Crim. App.1993) (en banc) (holding that both the granting and the denying of a motion for new trial rests within the discretion of the trial court, and appellate courts ordinarily will not reverse those decisions unless the trial court has abused its discretion). Finally, an abuse of discretion occurs when the trial court's decision was arbitrary or unreasonable. See State v. Read, 965 S.W.2d 74, 77 (Tex. App.–Austin 1998, no pet.). Analysis Appellant contends that the jury failed to follow the trial court’s instruction to avoid considering good conduct time or parole. This was evidenced, according to appellant, by the mere fact that the jury sent the note described above. An appellate court may presume the jury will follow an instruction as given. Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002); see also Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (stating that "we assume that the jury would follow the instruction as given, and we will not reverse in the absence of evidence that the jury was actually confused by the charge"). Next, while the jury asked about good time and parole in its note, that alone is not enough to rebut the presumption that it followed the trial court’s directive and the instruction in the charge. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.1998) (holding that “[e]ven if the note constitutes evidence the jury discussed parole at a preliminary point, we presume they followed the court’s instructions and thereafter did not consider it in reaching their verdict”); Graham v. State, 96 S.W.3d 658, 661 (Tex. App.–Texarkana 2003, pet. ref'd) (holding a question in a jury note alone is insufficient to rebut the presumption that jurors followed the instruction to not consider parole in its deliberations). Moreover, appellant does not cite us to any evidence other than the note to support his argument that the jury ultimately failed to heed the trial court’s instruction. Accordingly, we overrule the issues and affirm the judgment. Brian Quinn Chief Justice Do not publish. minating response. Innis, 446 U.S. at 301 n.7. See also Wilkerson v. State, 173 S.W.3d 521, 528-30 (Tex.Crim.App. 2005) (discussing application of Miranda and art. 38.22 to questions by state agent not participating in criminal investigation). The jailer in Webb placed himself into the law enforcement role by admitting he "saw his own role as one of helping in the FBI's investigation in whatever way he could," and by informing investigators of the defendant's statement. 755 F.2d at 389. The circumstances of appellant's statements in the waiting room of the clinic and Wilson's failure to record the statement or report it to investigators or the prosecutor further indicate he had no intent to act in an investigative capacity. The record supports a finding appellant's statement was not the result of interrogation. We overrule appellant's first and third points of error. Appellant's second point asserts admission of the statement violated his Sixth Amendment right to counsel. Protection of that right prohibits police from eliciting incriminating statements from a defendant concerning the pending charge after the defendant's right to counsel attaches, which occurs on commencement of adversarial proceedings. Fellers v. U.S., 540 U.S. 519, 523, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004); Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Custody of a defendant is not necessary to a Sixth Amendment violation. Innis, 446 U.S. at 300. Appellant relies on the argument advanced under his first point to establish Wilson's conduct was designed to elicit incriminating statements in violation of his Sixth Amendment right to counsel. The State's brief contains no discussion of appellant's Sixth Amendment claim. We initially note the Sixth Amendment right to counsel is offense-specific. Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001); Romo v. State, 132 S.W.3d 2, 3 (Tex.App.-Amarillo 2003, no pet.). Even if Wilson's conversation with appellant were reasonably likely to elicit an incriminating statement, it concerned the charge of intoxication manslaughter. Admission of that evidence in his trial for aggravated assault, for which he apparently had not yet been indicted, (6) would not be barred under the Sixth Amendment. Id. Moreover, for the reasons discussed, the record supports a conclusion that Wilson's questions to appellant were not designed or reasonably likely to elicit incriminating information. We overrule appellant's third point. Appellant's fourth point of error complains of the State's failure to timely disclose his statement to the defense. He argues evidence of the statement should have been excluded because it was not disclosed to defense counsel until the second day of trial in violation of a pretrial order issued under article 39.14 of the Code of Criminal Procedure (Vernon 2005). The trial court order required disclosure of, inter alia, "all oral confessions, admissions and statements made by Defendant to the state in connection with this case, which were not electronically recorded[,] offense reports, police reports [and] reports of third parties . . . involving the alleged facts of the offense." Article 39.14(a) authorizes a trial court to order the State to produce documents, written statements of the defendant and tangible objects under the control of the State which are relevant to the action. Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon 2005). An order under that article "shall specify the time, place and manner of making the inspection[.]" Id.; Kinnamon v. State, 791 S.W.2d 84, 92 (Tex.Crim.App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (Tex.Crim.App. 1994). Appellant's motion did not ask the trial court to set a time for production and the court did not do so. See Kinnamon, 791 S.W.2d at 92 (court does not err in failing to set date when there is no request). The record shows Wilson's statement concerning the event was provided to defense counsel the Friday before trial. In the absence of a deadline set by the court, disclosure on the eve of trial has been found timely. Kirksey v. State, 132 S.W.3d 49, 54 (Tex.App.-Beaumont 2004, no pet.), citing Murray v. State, 24 S.W.3d 881, 893 (Tex.App.-Waco 2000, no pet.). The facts here are indistinguishable from those of Murray. There the prosecutor received a witness statement at 5:35 p.m. on the Friday before trial. Id. at 893. She forwarded the statement to defense counsel thirty minutes later. The trial started the following Monday and the witness was called on Wednesday. Id. The Waco Court of Appeals found no violation of the discovery order and affirmed. Id. Finding that holding dispositive, we overrule appellant's fourth point. Appellant's next three points challenge the admission of expert witness testimony concerning the presence of a cocaine metabolite in his blood and the effect of cocaine withdrawal. He argues the evidence was admitted in violation of Rules of Evidence 401 (7) (point five), 702 (point six), and 403 (point seven). The disputed evidence was the testimony of Department of Public Safety chemist Kathy Erwin, who analyzed the blood collected from appellant. She found it contained .36 milligrams per liter of benzoylecgonine. This chemical is produced when the body metabolizes cocaine. Benzoylecgonine has no effect on the body but indicates cocaine had been present. According to Erwin the presence of benzoylecgonine does not indicate how or when the cocaine was ingested. (8) Erwin went on to testify that cocaine is a potent stimulant which can lead to a "crash phase" or "crash effect" during withdrawal where the user can experience fatigue and sleepiness and a general lack of energy. (9) The effect can exist even when the cocaine is no longer present. Erwin was not asked for an opinion whether appellant had experienced cocaine crash or withdrawal. Except for her identification of appellant's blood sample and her recitation of the procedures utilized in the DPS lab and results of her analysis, Erwin's testimony was not related directly to appellant. The defense presented expert testimony from toxicologist James Booker. His testimony was consistent with that of Erwin on the source of benzoylecgonine and the general scientific recognition of a cocaine crash or cocaine withdrawal. He agreed that effect can last from several hours to several days, but opined an occasional user of small amounts of cocaine would not suffer a withdrawal effect. When asked what information was needed to determine the effect of a drug on a person, he replied that for cocaine it would require information on when it was used, how much was used and the means by which it was administered, adding that information was not available in this case. Following the plain language of Rule 401, appellant argues by his fifth point Erwin's testimony did not have any tendency to make a fact of consequence to the determination of the action more or less probable because it did "not establish that he was under the influence of cocaine when he struck the decedent." This argument misapprehends the State's theory at trial and the purpose of Erwin's testimony. It was not the State's theory that appellant was under the influence of cocaine at the time of the collision, but that he was fatigued and sleepy because he was suffering withdrawal from cocaine. This theory was within the indictment allegation that appellant operated a motor vehicle "without sufficient sleep, as a result of the introduction of cocaine into his body[.]" (10) Erwin's testimony was relevant because it established scientific acceptance of the effects of cocaine withdrawal. It also showed appellant had consumed cocaine in the recent past. That the testimony did not establish when the cocaine was consumed or conclusively establish appellant experienced cocaine withdrawal at the time of the collision did not make it inadmissible. As the Court of Criminal Appeals has explained, the insufficiency of a particular item of evidence, standing alone, to prove a fact does not make it inadmissible. Manning, 114 S.W.3d at 927. We overrule appellant's fifth point. In his sixth point appellant challenges admission of Erwin's testimony because the State failed to establish the reliability of that testimony. When a party offers testimony of an expert witness, it is the trial court's responsibility to determine if the evidence is sufficiently reliable to assist the jury. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App. 2002). Appellant argues the State "failed to shoulder its burden of showing that [E]rwin's technique applying the cocaine crash theory was valid and that the technique had been properly applied in this case." As noted, however, Erwin's testimony did not apply the cocaine crash theory to appellant. Before the jury, she was not asked if appellant had experienced cocaine crash or withdrawal. (11) The State showed Erwin had bachelor's and master's degrees in chemistry, had taken additional graduate courses in forensic toxicology and had over 20 years experience in the field of chemistry, with five of those in the DPS crime laboratory. She also identified literature reporting studies on the effects of cocaine use. Appellant presents no challenge to the reliability of Erwin's testimony about her analysis of his blood, that concerning the metabolite benzoylecgonine, or that describing the effects on the body of cocaine use and cocaine withdrawal. His challenge is to testimony that Erwin did not give. We overrule appellant's sixth point. In his final point of error appellant argues that even if the evidence of the presence of benzoylecgonine was relevant, it should have been excluded because the probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. In reviewing an objection to evidence under Rule 403, a court should consider, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Prible v. State, 175 S.W.3d 724, 733 (Tex.Crim.App. 2005); Manning, 114 S.W.3d at 926. Appellant's argument reiterates the contentions regarding relevancy urged in support of his fifth point. His argument challenges the Court of Criminal Appeals' analysis of similar evidence in Manning, and its conclusion the failure to exclude such evidence under Rule 403 was not error. We find the analysis and holding in Manning dispositive and overrule appellant's seventh point. Having overruled appellant's points of error, we affirm the trial court's judgment. James T. Campbell Justice Do not publish. 1. Disposition of the manslaughter charge is not shown in this record. 2. A defense expert testified that no conclusion could be drawn about when appellant consumed cocaine based on the analysis of his blood. 3. At the time of appellant's trial Cantrell had discharged his sentence and testified he was not subject to probation, parole or pending charges. 4. During defense counsel's voir dire examination of Wilson, he described the context of appellant's statements in the waiting room, stating, "He wasn't talking to me in general. He was speaking out loud to, basically, anybody that would listen to him. There was another inmate in the room at that time and I think the nurses were around as well." 5. Questioned during his voir dire examination about his reaction to appellant's statements, Wilson testified, "Whenever he made that statement it - I didn't know what effect it would have on the case or I didn't know what kind of evidence they had or anything like that. A lot of times they may talk about their cases out loud." 6. Appellant's indictment for aggravated assault appearing in the appellate record is dated in January 2004, after his November 2003 conversation with deputy Wilson. Wilson and Brian Cantrell testified appellant's statement during that conversation was to the effect he had been indicted for "intoxicated manslaughter." Nothing in the record makes clear whether appellant's earlier indictment included the aggravated assault charge. 7. Trial defense counsel's objection to Erwin's testimony referred to Rule 401, which defines relevant evidence. It is Rule of Evidence 402 that makes evidence which is not relevant inadmissible. 8. Appellant's expert testified benzoylecgonine is normally present for two or three days, but that some reported cases found detectible amounts after two or three weeks in chronic cocaine users. 9. She said that among its effects, cocaine "keeps you awake." 10. Because the use of cocaine was alleged in the indictment, evidence of that use was not an extraneous offense. Manning v. State, 114 S.W.3d 922, 927 (Tex.Crim.App. 2003). 11. Erwin was not directly asked if appellant had used cocaine. She testified appellant's blood sample contained the metabolite benzoylecgonine and that benzoylecgonine is produced in the body only following cocaine use. She agreed with the prosecutor that, from the presence of benzoylecgonine in a person's body, she could tell that cocaine "was used."