Phillip A. Adams v. State

11th Court of Appeals Eastland, Texas Opinion Phillip A. Adams Appellant Vs. No. 11-00-00114-CR B Appeal from Palo Pinto County State of Texas Appellee The jury convicted appellant of capital murder and assessed his punishment at confinement for life. We affirm. On December 19, 1996, the victim went to Stephenville with his sister and brother-in-law to play bingo as they did every week. On the way home, the group stopped by a convenience store in Granbury where the victim worked as a manager because he noticed his night shift worker was not there. The victim took over for the prior shift workers who had not been relieved. The victim=s sister never saw him again after she left the store because the victim never returned home. The victim=s body was found in a wooded area off a country road in southeast Palo Pinto County thirteen months later. Appellant asserts the following six issues: (1) that the evidence was legally insufficient to support the verdict; (2) that the evidence was factually insufficient to support the verdict; (3) that appellant was denied due process and a fundamentally fair trial under the Fourteenth Amendment of the United States Constitution and due course of law under Article I, sections 10 and 19 of the Texas Constitution by the State=s belated disclosure of exculpatory evidence; (4) that the trial court erred in allowing the State to admit evidence that it failed to disclose consistent with the court=s pretrial discovery orders; (5) that appellant was denied the effective assistance of counsel; and (6) that the trial court erred in excluding statements from the victim about his homosexual relationship with Michael Bartee. In his first issue, appellant contends that the evidence is not legally sufficient to support the verdict. When reviewing a verdict for legal sufficiency, we review the evidence in the light most favorable to the verdict and ask whether any 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 (1979). Under TEX. PENAL CODE ANN. ' 19.03 (Vernon 1994), a person commits the offense of capital murder when that person commits murder as defined under TEX. PENAL CODE ANN. ' 19.02(b)(1) (Vernon 1994) and the person intentionally commits the murder in the course of committing or attempting to commit robbery. In his second issue, appellant argues that the evidence is factually insufficient to support the verdict. In a factual sufficiency challenge, the question is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000). The victim worked as a manager at a convenience store in Granbury. His coworker, Carol Roberts, never saw him again after he left work early with a bank deposit of $3,000 on December 20, 1996. Roberts testified that before the victim left work, the victim had an upsetting phone conversation with appellant. The victim was an acquaintance of appellant when appellant moved to Granbury and had briefly parked his RV in a park behind the E-Z Mart where the victim worked. Sheila Cross Brown, appellant=s ex-girlfriend, testified that, when she lived and worked with appellant on the carnival circuit, they were living from paycheck to paycheck and not saving money. She said that, when she saw appellant on December 21, 1996, he looked tired and upset. According to Roberts, appellant was at the convenience store borrowing money from the victim daily. Within two days after the victim was last seen alive, appellant bought a pickup from a man in Arlington for $1,200 and paid in cash, gave $305 cash to a prostitute, stayed at a hotel in Grandbury and paid $50 in cash, and gave a $100 money order to Brown. Through its verdict, the jury chose to believe the State=s theory that appellant killed the victim in the course of robbing him and chose to reject appellant=s testimony. The evidence is sufficient to sustain that verdict. Edwards v. State, 344 S.W.2d 687 (Tex.Cr.App.1961). Because we find the evidence to be both legally and factually sufficient to support the verdict, appellant=s first and second issues are overruled. In his third issue, appellant claims that he was denied due process and a fair trial under the Fourteenth Amendment and due course of law under Article I, sections 10 and 19 of the Texas Constitution by the State=s belated disclosure of exculpatory evidence. Due process guarantees under the U.S. Constitution require that the State provide exculpatory evidence to the accused upon request. Damian v. State, 881 S.W.2d 102, 107 (Tex.App. - Houston [1st Dist.] 1994, pet=n ref=d). A three-part test is used in determining whether a prosecutor has violated the federal due process clause. A violation occurs when a prosecutor: (1) fails to disclose evidence; (2) which is favorable to the accused; (3) that creates a probability sufficient to undermine the confidence in the proceeding. Damian v. State, supra at 107. On the second day of trial, the defense was provided with a report for the first time that included information that in June 1997 Larry Goin telephoned Thelbert Millsap of the Texas Rangers advising him that the victim may have been seen in the Dublin area. The report indicated that people had been interviewed who believed that they had seen the victim in the area of the Buckboard Cafe and that people at the cafe also agreed that the photograph of the victim looked familiar. The defense moved for a mistrial, but the trial court denied the motion. On Jan 29, 1999, the ADefendant=s First Motion for Disclosure of Exculpatory Evidence@ was filed. This motion was granted on January 29, 1999. After the exculpatory evidence was revealed at trial, the State located Mr. and Mrs. Williams, two witnesses who had communicated with the State regarding the possibility of the victim being alive in Dublin after his disappearance. The trial court allowed the defense an opportunity to visit with the Williamses by telephone on one of the mornings during trial. The State also said that it would make sure that, if the defense wanted the witnesses to appear at trial, the State would make them available to testify. After the conversation with the Williamses, the defense did not ask to have the witnesses present at trial and did not ask for a continuance. In addition, at the hearing on the motion for new trial, the defense did not have anyone from Dublin testify that they had seen the victim since his disappearance. Therefore, there is no evidence for this court to consider which might satisfy the second or third element of the Damian test: that there was evidence that would be favorable to the defendant that created a probability sufficient to undermine the confidence in the proceeding. For this reason, we overrule appellant=s third issue. In his fourth issue, appellant argues that the trial court erred in allowing the State to admit evidence that it failed to disclose in compliance with the trial court=s pretrial discovery orders. Absent bad faith or willfulness on the part of the prosecution, the extreme sanction of exclusion should not be imposed. State v. Wright, 830 S.W.2d 309, 313 (Tex.App. - Tyler 1992, no pet=n). The defense has provided no evidence that the exclusion of the evidence was willful or in bad faith. If the trial court admits the evidence, a showing of harm must be made to obtain a reversal on appeal. Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Cr.App.1978). Appellant asserts that the last-minute disclosures made by the State Aseverely compromised appellant=s right to a fair trial.@ However, appellant did not ask for a continuance or any other remedy to this problem other than exclusion of the evidence. Appellant=s fourth issue is overruled. In his fifth issue, appellant asserts that his counsel was ineffective because of the failure to make objections at Akey points in trial.@ When confronted with a claim of ineffective assistance of counsel, we apply the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of the Strickland test requires appellant to show that his counsel=s performance was Adeficient.@ Strickland v. Washington, supra at 687. A showing that counsel was deficient requires a showing that the representation fell below an objective standard of reasonableness. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000). The second prong of the Strickland test requires appellant to show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Tong v. State, supra at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra at 694. There is a strong presumption that counsel=s actions fell within the wide range of reasonable professional assistance. Appellant has the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The standard of proof for ineffectiveness of counsel is a preponderance of the evidence. Ramirez v. State, 987 S.W.2d 938, 943 (Tex.App. - Austin 1999, no pet=n). Appellant asserts that, when the prosecutor was cross-examining appellant, she repeatedly asked appellant if other witnesses were lying when they testified. Appellant asserts that requiring appellant to state his opinion as to the truth or falsity of the other witnesses= testimony was improper. However, Williams v. State, 17 S.W.2d 56, 58 (Tex.Cr.App.1928), states that, while it is improper to require a witness to express his opinion as to the truth or falsity of testimony contradicting him, such actions do not mandate reversal. The trial court reasoned that, if the jury had accepted appellant=s version as the truth, it would have necessarily concluded that the State=s witnesses had testified falsely. Williams v. State, supra at 58. We find that counsel=s lack of objection to the State=s cross-examination does not meet the second prong of the Strickland test in that there is not a reasonable probability that the outcome would have been different if this line of questioning had been excluded. In addition, appellant argues that statements made by the prosecutor during closing arguments were improper. One such statement called appellant=s experts Ahigh-dollar experts@ and alluded to the fact that, if the experts would not testify in a way which would help the defense, they would not be paid. Drawing attention to possible biases of witnesses is permissible jury argument. Satterwhite v. State, 858 S.W.2d 412, 425 (Tex.Cr.App.1993). Because the argument was permissible, the first prong of the Strickland test cannot be met: counsel=s omission of an objection to permissible argument cannot constitute deficient performance. Appellant=s fifth issue is overruled. In his sixth issue, appellant urges that the trial court erred in refusing to allow him to testify about statements made by the victim describing a homosexual relationship between the victim and Bartee. Appellant testified in a hearing outside of the presence of the jury that the victim had had an argument with Bartee shortly before his disappearance. Appellant argues that not allowing testimony about the substance of this argument and the relationship between the victim and Bartee violated his right to present his defense in violation of his Sixth and Fourteenth Amendment rights under the U.S. Constitution as well as his rights under TEX. CONST. art. I, ' 10. Defense counsel did make an offer of proof. Appellant testified that the argument had taken place because Bartee had supposedly been Amessing@ with a lady in Fort Worth and that the victim was upset about that. Appellant stated that the victim was gay and that the victim had often discussed his relationships with men. Additionally, the defense counsel offered the following items for the trial court=s review: (1) an inventory of the victim=s car which included videos showing homosexual behavior and erotic books which had a homosexual theme and (2) a statement of Roberts, the woman who worked with the victim at the E-Z Mart who said that the victim often went to the park when he was not working to Asee if any men came by.@ The court would not allow this testimony, and it appears this was based on the State=s argument that such testimony would violate the hearsay rule. TEX.R.EVID. 802. Appellant argues that the evidence is admissible as a hearsay exception as a statement against interest and is independently admissible under Chambers v. Mississippi, 410 U.S. 284 (1973). Appellant asserts that the statements are against the victim=s social interest. To be admissible, a statement against interest that makes the declarant the object of hatred, ridicule, or disgrace must be considered in the context of the declarant=s social interests. Miles v. State, 918 S.W.2d 511, 516 (Tex.Cr.App.1996). As in Miles, we do not find that the victim was subject to hatred, ridicule, or disgrace at the time he made the statements such that the statements were against his interest. Part of appellant=s testimony that was not admitted included the fact that the victim had described his relationships with men to appellant and that the victim was Avery open with it.@ Roberts, a coworker and friend of the victim, testified that everyone knew the victim was gay. If it was common knowledge that the victim was a homosexual, the statements were not against the victim=s social interest and were not admissible. Appellant=s sixth issue is overruled. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE May 30, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.