Frank Scott Peterson v. State

Affirmed and Memorandum Opinion filed December 7, 2006 Affirmed and Memorandum Opinion filed December 7, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00874-CR ____________ FRANK SCOTT PETERSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 1029833 M E M O R A N D U M   O P I N I O N Appellant Frank Scott Peterson was convicted of capital murder and sentenced to life in prison. In four issues he appeals his conviction arguing the trial court erred in (1) overruling hearsay objections to portions of a witness=s testimony, (2) overruling an objection to the prosecutor=s opening statement, (3) permitting the State to impeach a defense witness before the witness testified, and (4) excluding opinion testimony. We affirm. Background On August 14, 2002, the complainant, Thelma Goodwin, an eighty-one year old widow, was found in her front yard with duct tape wrapped around her head and feet. When the complainant was first discovered, she was lying on the ground, and appellant was holding her head. When questioned by the police and neighbors, appellant said he heard the complainant=s cries for help and came to her aid. Both the neighbors and police officers found this claim suspicious because the complainant=s mouth was covered with duct tape. The complainant was transported by ambulance to the hospital, where she died as a result of injuries caused by blunt force trauma. Appellant lived in a travel trailer parked on the lot next to the complainant=s home. Appellant claimed to be renovating the abandoned house on the lot. Danielle Schwartze, a neighbor of the complainant, told police officers that on the day the complainant was killed, appellant asked her to buy a rock of crack cocaine for him. When Schwartze returned with the cocaine, she found appellant in the abandoned house, gave him half of the rock of crack cocaine, and kept the other half for herself. Appellant asked Schwartze if she had any duct tape. Schwartze asked appellant why he needed duct tape and appellant replied, ASo I can tape that bitch=s mouth up.@ When Schwartze returned with the duct tape, she saw the complainant lying on the floor of the abandoned house with her head and legs bound with duct tape. Appellant told Schwartze he and a companion had robbed the complainant. Schwartze testified that appellant and an unknown individual beat and kicked the complainant, then threw her over the fence into her yard. While investigating the death of the complainant, officers learned that appellant had expressed animosity for the complainant because she had not paid him enough money for trimming trees on her property. Investigators found appellant=s fingerprints inside the complainant=s home. Several of the complainant=s neighbors told the police that the complainant was a very private person and did not allow anyone in her home. Further, Schwartze told a witness that she and appellant took money and jewelry from the complainant=s home. Appellant was subsequently convicted of capital murder and sentenced to life in prison. Standard of Review In three of his four issues, appellant challenges the trial court=s ruling on the admission or exclusion of evidence. We review a trial court=s decision to admit or exclude evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will only reverse a trial court=s decision to admit or exclude evidence when that decision falls outside the zone of reasonable disagreement. Id. Hearsay Testimony Angelique Martin Smith worked at Ruth=s House, an assistance organization that provided food, clothing, and shelter for less fortunate people. The complainant worked in the clothes closet of Ruth=s House through an organization called Sheltering Arms, which provides employment for elderly people, such as complainant, in need of work to supplement their retirement income. Smith testified that the complainant attempted to obtain food for appellant through Ruth=s House. Smith told the complainant that she could dispense food once without identification, but after that appellant would have to file the appropriate documents with Ruth=s House to obtain assistance. Appellant objected to Smith=s testimony on the grounds that the documents referred to were hearsay. Because the documents were not in evidence, the trial court overruled the objection. Smith further testified as follows: Q. What did you say to [the complainant] about these documents for an applicant to receive food? A. What I said was that that person, actually, [appellant], would need to come in himself. [Defense counsel]: Your Honor, I object. This is hearsay. THE WITNESS: No, this is not hearsay. This is not hearsay. THE COURT: Hold on, ma=am. I get to rule on that. She=s right. It=s not hearsay. So, overrule your objection. This is what Ms. Martin Smith said. On appeal, appellant contends the contents of the documents referred to by Smith concerning an applicant receiving food constituted written out-of-court statements and were, therefore, inadmissible as hearsay. The documents referred to by Smith were not introduced into evidence. Smith merely testified to the paperwork that needed to be filed for appellant to obtain food. The trial court did not err in overruling an objection to the admission of documents that were never introduced into evidence. Appellant further contends that Smith=s statement that appellant would need to come in to Ruth=s House for food was inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). A statement that is not offered to prove the truth of the matter asserted, but is offered for some other reason, is not hearsay. Jeffley v. State, 38 S.W.3d 847, 861 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Smith=s statement that appellant needed to come in to Ruth=s House and fill out paperwork was not offered for the truth of the matter asserted. The statement was not offered to show how one obtains food from Ruth=s House but that appellant was alleged to have killed a woman who was trying to help him. The trial court did not abuse its discretion in overruling appellant=s objections. We overrule appellant=s first issue. Prosecutor=s Opening Statement In his second issue, appellant contends the trial court erred in denying his objection to the prosecutor=s opening statement. Appellant complains of the following remarks made during the State=s opening statement: She=s going to tell you that she said, AWhy do you need this duct tape?@ And he says, ASo I can tape that f***ing bitch=s mouth shut.@ Now, Danielle backs off of this statement later. Prosecutor named Joni Vollman was handling this case at the time; and Danielle tried to take back those words, probably because even a crackhead can tell that when you make such an admission, it might get you in trouble. [Defense counsel]: Judge, I object. This is not proper opening argument. THE COURT: Well, Counsel, if this is what she expects the evidence will show, she may proceed. Article 36.01 of the Code of Criminal Procedure provides, AThe State=s attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.@ Tex. Code Crim. Proc. Ann. art. 36.01(a)(3). A preliminary statement of what the State expects to prove is proper. Marini v. State, 593 S.W.2d 709, 715 (Tex. Crim. App. 1980). If evidence is admissible at trial, the prosecutor does not err in referencing the evidence during the opening statement. Parra v. State, 935 S.W.2d 862, 871 (Tex. App.CTexarkana 1996, pet. ref=d). The State introduced evidence that Schwartze gave a statement to police and approximately one hour later gave another statement. Schwartze also testified that prior to her grand jury testimony, she struck through certain words in her statement. When questioned why she redacted the statement, Schwartze said she was afraid of appellant. Schwartze also admitted that she originally told police appellant had said, AWe robbed her, and I=m going to kill her.@ Schwartze later struck that sentence from her statement because she again said she was afraid of appellant. Schwartze further testified she had been addicted to crack cocaine and had smoked crack the day of the murder. Thus, because there was evidence admitted a trial that Schwartze regularly smoked crack cocaine and that she had changed her statements, the prosecutor=s opening statement was not improper. As to appellant=s contention that the prosecutor=s remark regarding Schwartze=s reason for changing her statement (i.e., that Ait might get you in trouble@) was improper, we disagree. Schwartze=s motive in changing her statements was a proper area of inquiry at trial, and the prosecutor did not err in referencing it during opening statement. We overrule appellant=s second issue. Impeachment of Defense Witness In his third issue, appellant contends the trial court erred in permitting the prosecutor to impeach a prospective defense witness before the witness testified. Harris County Sheriff=s Deputy Kevin Mason was one of the officers who responded to the scene and testified at trial. On cross-examination, defense counsel questioned Mason about his report and asked whether Officer William Christian had responded to the scene and whether Christian had filed a report. On re-direct examination, the prosecutor asked Mason whether Christian was still employed by the Harris County Sheriff=s Department. Mason replied that Christian was no longer with the department, and the prosecutor inquired as to whether his termination was related to this case. Defense counsel objected on the grounds that the reason for Christian=s termination was irrelevant. Outside of the jury=s presence, the trial court determined that because appellant had issued a subpoena for Christian, the prosecutor could ask Mason why Christian was terminated. Before the jury, Mason testified that Officer Christian had been fired for official misconduct. During appellant=s evidence, Christian testified that he had been convicted of aggravated sexual assault. He further testified that he was employed by the Sheriff=s Department at the time of the murder and he was one of the officers who responded to the scene. Christian testified that his report of the incident reflected that one of the complainant=s neighbors had said he saw appellant removing duct tape from the complainant=s mouth. On cross-examination, the prosecutor asked Christian about his conviction and termination and whether it was related to the death of the complainant. Christian responded that the two cases were unrelated. On appeal, appellant argues that the prosecutor=s questions were improper impeachment because the witness had not yet testified and because his termination from the Sheriff=s Department was not a proper area of inquiry. The State responds that by asking Deputy Mason about whether Officer Christian responded to the scene and filed a report, appellant Aopened the door@ to permit the State to explain why it did not call Christian as a witness. See Parr v. State, 557 S.W. 2d 99, 102 (Tex. Crim. App. 1977). We need not decide, however, whether the trial court erred in overruling appellant=s objections because it is clear that error, if any, in the admission of this evidence was harmless. A non‑constitutional error does not require reversal of the judgment unless it affected substantial rights by having a substantial and injurious effect or influence in determining the jury=s verdict. Tex. R. App. P. 44.2(b); Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). Substantial rights are not affected if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Guevara v. State, 152 S.W.3d 45, 53 (Tex. Crim. App. 2004). Deputy Mason testified that Christian had been terminated for official misconduct. Christian expanded on that evidence and explained he was convicted of aggravated sexual assault and had been sentenced to serve a five-year prison term. Further, appellant did not object when the prosecutor questioned Christian about his conviction. Any damage to Christian=s credibility from Mason=s testimony was obviated by Christian=s own admission of his conviction. We overrule appellant=s third issue. Opinion Testimony In his fourth issue, appellant argues the trial court erred in excluding Amanda Morgan=s testimony as to her opinion of the truthfulness of Danielle Schwartze. The State called Amanda Morgan as a witness for the purpose of impeaching a portion of Schwartze=s testimony. On cross-examination, appellant asked Morgan, AIs Danielle Schwartze a truthful person?@ The State objected, asserting appellant had not Alaid the proper predicate.@ The trial court sustained the State=s objection. At the end of the day, appellant made the following bill of exception outside the presence of the jury: [Defense counsel]: Amanda Morgan hasChad I been allowed toCshe had been allowed to answer the question, Amanda Morgan would have indicated that Danielle Schwartze is not a truthful, honest person. She would have also been able to answer that Danielle Schwartze is a manipulative person. These are all essential elements of who she is, what this case is about; and in such as the State has proven her up to be an accomplice, they become even more relevant. THE COURT: Counsel, the problem is you didn=t ask her a specific question for truth and character. You wouldn=t ask, and I had to sustain her objection. So, that=s why that didn=t get in. During appellant=s case, he called Amanda Morgan for the purpose of making another offer of proof outside the jury=s presence. At that time, the trial court ruled that Morgan could testify as to Schwartze=s reputation for truthfulness in the community. Morgan testified before the jury as follows: Q. And approximately when was it that you met Danielle Schwartze? A. I would say somewhere between January and March of 2001. Q. And, Ms. Morgan, I=m asking, yes or no, do you know her reputation in the community for being a truthful person? A. Yes, sir. Q. And is that reputation good or bad? A. Bad. Appellant contends the trial court erred in excluding Morgan=s opinion of Schwartze=s truthfulness. One method of impeaching a witness=s credibility is to demonstrate that the witness, as a general proposition, does not tell the truth. Tex. R. Evid. 608(a). This method of showing a general lack of credibility is accomplished by showing that the witness has a poor reputation in the community for telling the truth. See Dixon v. State, 2 S.W.3d 263, 272 (Tex. Crim. App. 1998). Another method of impeachment permitted by Rule 608(a) is for a specific witness to testify that, in her opinion, the other witness is not worthy of belief. Id. Rule 608(a) explicitly permits both types of impeachment evidence. Id. Rule 405(a), however, requires that before a witness can be qualified to testify as to the character of the accused, the witness must have been familiar with the reputation of the accused, or with the underlying facts or information upon which the opinion is based. Tex. R. Evid. 405(a). Rule 608(a) imposes no such requirement when the witness whose character is sought to be impeached is not the accused. The record reveals that Morgan=s opinion of Schwartze=s truthfulness was admissible under Rule 608(a). Nevertheless, the exclusion of Morgan=s testimony as to her opinion of whether Schwartze was worthy of belief is not reversible error. When Rule 608(a) was adopted, it expanded the use of character testimony from the common law, which confined character impeachment to reputation testimony. See Thomas v. State, 759 S.W.2d 449, 452 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (recognizing change after promulgation of rules of evidence). The expansion was due to the fact that witnesses who testify about the general reputation of another witness for truthfulness are actually expressing their personal opinions of the witness, and the jury takes it as such. See Fed. R. Evid. 608(a) advisory committee=s note (noting that Awitnesses who testify to reputation seem in fact often to be giving their opinions, disguised somewhat misleadingly as reputation@). Therefore, the admission of Morgan=s testimony that Schwartze generally suffered a bad reputation for truthfulness, rather than admitting Morgan=s opinion that Schwartze did not tell the truth, did not affect appellant=s substantial rights. See Tex. R. App. P. 44.2(b). We overrule appellant=s fourth issue. The judgment of the trial court is affirmed. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed December 7, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).