Kevin Leshawn Moore A/K/A Brandon Moore v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00319-CR Kevin Leshawn Moore a/k/a Brandon Moore, Appellant v. The State of Texas, Appellee From the 396th District Court Tarrant County, Texas Trial Court No. 0966038D MEMORANDUM Opinion We withdraw the opinion and judgment dated November 14, 2007 and substitute the opinion and judgment of this date in its place so that we may correct the information in the heading of the opinion and judgment regarding the trial court and County from which this proceeding originated. Kevin Lashawn Moore was found guilty of murdering his sister’s boyfriend, Jeff Hill, and was sentenced to 45 years in prison. We affirm. Background Moore’s sister, Lisa, had spent the night before the offense with Hill. The next day, Lisa and Hill had an argument. Lisa broke Hill’s apartment window and left the apartment, walking a few blocks to her apartment. Lisa’s other brothers, Brandon and Eric, happened upon Lisa, who told them of the argument and that Hill would not let her leave with her purse. Lisa told them she had $800 in her purse and needed it. Brandon and Eric went over to Moore’s apartment to discuss retrieving the purse. Moore, Brandon, and Eric then went to Hill’s apartment; Moore and Brandon armed with guns. Eric remained in the car while Moore and Brandon went to confront Hill. After a few minutes, Eric heard gunshots. Moore and Brandon hurriedly returned to the car. Neighbors also heard the gunshots and went to Hill’s aide. One neighbor saw Moore leaving the area. Hill died of multiple gunshot wounds. He had 8 bullet entry wounds. Two of those entry wounds were in his back. Rejection of Self Defense In his first issue, Moore argues the evidence is factually insufficient to support the jury’s rejection of his claim of self-defense. Specifically, Moore contends Hill began shooting at him first. Self-defense is justified when a person "reasonably believes" that "force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). A person’s use of deadly force is warranted where self-defense is justified under Section 9.31, a reasonable person would not have retreated, and when deadly force is reasonably necessary to protect himself against another's use or attempted use of deadly force. See Tex. Pen. Code Ann. § 9.32(a)(1)-(3) (Vernon 2003); Bumguardner v. State, 963 S.W.2d 171, 173 (Tex. App.—Waco 1998, pet ref'd). When a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State's evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Moore asserts that the testimony of Eric establishes Moore’s self defense theory. Eric, who drove Moore and Brandon over to Hill’s apartment, testified that Moore and Brandon said Hill shot first. However, Eric’s testimony was less than clear on this point. First Eric stated that Moore and Brandon said, “Did you see him? … He started shooting or something.” Then Eric stated that Brandon said, “I think he seen (sic) my gun or something and then started shooting, that’s when [Moore] started shooting.” Eric further stated that Brandon pulled his gun out and Hill pulled his gun out and started shooting. But Eric also stated that Moore said, “…the dude pulled his gun up and shot,” and Moore then started shooting at Hill. Eric also said Moore shot Hill until all the bullets were gone and that Brandon did not do any of the shooting. Eric thought Moore’s gun held 7 bullets. The medical examiner testified that Hill had 8 bullet entry wounds. Two of the entry wounds were in Hill’s back. Eric also stated that Moore started shooting, went through a window, and started shooting again until all the bullets were gone. Eric then stated that Hill did not start shooting back until after the bullets were gone. Eric said Moore was mad at Brandon because Brandon did not shoot. Further, Moore told Eric that he had caught Hill “slipping.” On cross-examination, Eric emphasized that he told the grand jury 3 to 4 times that Hill was the first aggressor and that Hill was wearing a .45 caliber gun. But he also told the grand jury that he didn’t know who fired first, that Hill started shooting back after Moore’s bullets were gone, that Hill raised his gun and then Moore started shooting, and that Moore said to Hill, “don’t put your hands on my sister,” and started shooting. Moore also asserts, without specific references to the record, that his expert’s testimony confirmed that the forensic evidence was consistent with Moore’s contention that Hill fired first. However, the expert did not testify as to who shot first. It was within the jury’s province to resolve conflicts in the testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). And in resolving those conflicts, the jury could reasonably conclude that Moore did not act in self defense. Accordingly, reviewing the record under the appropriate standard, the evidence is factually sufficient to support the jury’s rejection of Moore’s claim of self defense. Moore’s first issue is overruled. Excluded Testimony In his second and third issues, Moore complains that the trial court abused its discretion in excluding a crime scene investigator’s testimony that he found drugs in Hill’s apartment and the medical examiner’s testimony that Hill had ingested marijuana and cocaine prior to his death. Moore argues the excluded testimony supports his claim that Hill was the first aggressor. The trial court excluded the testimony because it was irrelevant. The standard of review for a trial court's ruling under the Rules of Evidence is abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Id. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence which is not relevant is inadmissible. Id. 402. In a hearing outside the presence of the jury, Moore proffered testimony from the crime scene officer that he located large amounts of marijuana in Hill’s master bedroom closet, a substance that appeared to be crack cocaine in the hallway and on the T.V., scales, and money in between the bed mattresses. Moore also proffered testimony from the medical examiner that he found marijuana and cocaine in Hill’s urine which indicated prior use of the substances. However, the medical examiner could not say how long prior to the offense Hill had used the substances. He also testified that Hill did not have any substances in his blood and that if a parent drug is not found in the blood, the drug has been metabolized. The medical examiner could not say with certainty that Hill was not under the influence of drugs at the time of the offense. Moore argues that the proffered testimony is relevant to show that Hill was the first aggressor. Moore cites to a line of cases which hold that in the context of proving the deceased was the first aggressor, specific, violent acts are relevant apart from showing character conformity by demonstrating the deceased's intent, motive, or state of mind. See Hayes v. State, 161 S.W.3d 507 (Tex. Crim. App. 2005); Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 2003); Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002). But these cases are inapposite. Moore did not seek to introduce evidence of specific, violent acts. He wanted to introduce evidence of prior drug use and drug possession. There is nothing in the record that connects the possession and use of marijuana and cocaine to Hill’s alleged violent acts or that he was the first aggressor. The proffered testimony is irrelevant, and the trial court did not abuse its discretion in excluding it. Having determined the proffered evidence was not relevant, we need not review Moore’s complaints under Rules of Evidence 403 or 404. Moore’s second and third issues are overruled. Conclusion Having overruled each issue, we affirm the judgment of the trial court. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurs in the judgment) Affirmed Opinion delivered and filed December 5, 2007 Do not publish [CRPM] f]> (3) it is Jefferson’s responsibility to submit time cards showing community service hours and there are no time cards in the file; (4) it is customary for the anger control program to document a probationer’s participation in the program and there is no such documentation in Jefferson’s file; and (5) the person performing the psychological evaluation forwards a copy for the record and there is no copy of an evaluation in Jefferson’s file. After this testimony, the State asked the court, without objection by defense counsel, to take judicial notice of Jefferson’s probation file. Jefferson testified that he never attended the anger management program, but excuses this failure because he was confused about his reporting to these classes and believed that the probation department would communicate with him through the Salvation Army where he was staying. He also believed that he fulfilled his community service hours at the Salvation Army. He admitted that he missed many of his monthly reporting dates. Jefferson argues trial court error in admitting Hill’s testimony at the revocation hearing because Hill could not identify the specific probation officers who made the entries in the probation file. The State argues that Hill’s testimony was properly admitted under the business records exception to hearsay. See Tex. R. Evid. 803(6), (7). The State further argues that it offered sufficient proof by a preponderance of the evidence to establish more than one of the alleged violations in the motion to revoke probation. The burden of proof in a probation revocation hearing is a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State must prove that the greater weight of credible evidence would create a reasonable belief that the defendant has violated a condition of his probation. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). Appellate review of a revocation is abuse of discretion. McDonald v. State, 608 S.W.2d 192, 199 (Tex. Crim. App. 1980). A court does not abuse its discretion in revoking probation if one violation is proven. Id. at 200; Dunn v. State, 997 S.W.2d 885, 887 (Tex. App.—Waco 1999, pet. ref’d). A probation record has probative value in a revocation proceeding and constitutes evidence of facts or non-facts recited in the record. Hardman v. State, 614 S.W.2d 123, 128 (Tex. Crim. App. 1981). If a witness testifies that the records were kept in the regular course of business and the officers who made the entries did have personal knowledge of the fact, the proper predicate has been laid where the witness can testify from the probation record. Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim. App. 1978). The testifying witness for a business record need not be the person who created the record or even have personal knowledge of its contents. Desselles v. State, 934 S.W.2d 874, 876 (Tex. App.—Waco 1996, no pet.). Rather, the testifying witness must have knowledge of how the report was prepared. Id. Rule 803(6) provides that a “report . . . in any form of acts [or] events” is not excluded by the hearsay rule if the proponent of the evidence otherwise establishes the predicate for the business records exception. Tex. R. Evid. 803(6). The State laid that predicate. See Simmons, 564 S.W.2d at 770; Desselles, 934 S.W.2d at 876. Hill could properly testify from the probation record without it being admitted. See Simmons, 564 S.W.2d at 770. Accordingly, the court properly overruled defense counsel’s hearsay objection. Thus, we overrule issue one. ISSUE TWO: ABUSE OF DISCRETION Jefferson asserts that the trial court abused its discretion in revoking his probation. He argues that no documents were admitted into evidence and the trial court relied solely on the testimony of Mr. Hill, which he asserts is inadmissible hearsay. The State argues that any error in the admission of alleged inadmissible hearsay from the file was cured when Jefferson admitted the same facts, and therefore the trial court did not abuse its discretion in granting the motion to revoke. A probationer’s admission that he has violated a probationary term is sufficient evidence for the trial court to revoke probation. Espinoza v. State, 486 S.W.2d 315, 317 (Tex. Crim. App. 1972). Jefferson has admitted that he did not report for many months. Further, the trial court properly overruled Jefferson’s hearsay objection, and the State has proven violation of the probation condition to report to his probation officer. Accordingly, we find the trial court did not abuse its discretion by revoking his probation. See McDonald, 608 S.W.2d at 199; Espinoza, 486 S.W.2d at 317; Dunn, 997 S.W.2d at 887. We overrule issue two. CONCLUSION We overrule both of Jefferson’s issues. Therefore, we affirm the revocation of probation. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed December 29, 2004 Do not publish [CR25] [1] The probation record was not admitted into evidence. [2] On re-direct after a recess, Hill discovered record of payment of $750.00 in fees.