Gratton v. State

• Decision Date: 11 July 2013
• Docket Number: NO. 01-10-00615-CR,01-10-00615-CR
• Citation: Gratton v. State, NO. 01-10-00615-CR (Tex. App. Jul 11, 2013)
• Parties: CLIFFORD JAMES GRATTON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

CLIFFORD JAMES GRATTON, Appellant

v.THE STATE OF TEXAS, Appellee

NO. 01-10-00615-CR

Court of Appeals For The First District of Texas

Opinion issued July 11, 2013

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1231782

MEMORANDUM OPINION

A jury convicted appellant, Clifford Gratton, of the offense of capital murder.¹ Because the State did not seek the death penalty, the trial courtautomatically assessed punishment at confinement for life. In two issues, appellant contends that (1) the State failed to present sufficient evidence of identity and (2) the trial court abused its discretion when it required his alibi witness to testify in jail clothing without making any findings of fact or conclusions of law concerning this decision.

We affirm.

Background

In May 2007, Joseph Brown lived near the corner of Fondren and the Southwest Freeway, by the Arena Towers, in southwest Houston. Around 7:30 or 8:00 p.m. on May 11, 2007, Brown was standing in the doorway of his garage talking on his cell phone. Across the street, Brown saw a car stopped at the intersection of Fondren and the driveway from the Arena Towers, waiting to turn left onto Fondren. Brown then saw a person run from behind a nearby fence to the car and shoot into the front passenger window of the car. The shooter then ran back behind the fence. The car rolled across two lanes of Fondren and stopped at the grassy median. Brown called 9-1-1. He then saw a man, later identified as John Wells, climb out of the rear driver's side door, "stagger" across Fondren to a parking lot, and collapse. Brown walked over to the car and saw a passenger, later identified as Demonceon Coleman, sitting motionless and the driver, later identified as Ralph Houston, "gasping for breath." Coleman and Houston bothdied of multiple gunshot wounds. Brown testified that "[a]ll [he] saw [of the shooter] was a person with black clothing, and [he] couldn't even see skin or the face." It appeared to Brown that the shooter was wearing a hood and something to cover his face.

Kenya Hutchins testified that he was walking into a business on Fondren with two friends, Tiara Warren and Lashanda Reid, when he heard a loud bang followed a few seconds later by a series of several bangs. Hutchins ducked into the store and waited for several seconds before looking outside. Hutchins started walking toward Fondren. As he did so, he saw a car moving at a crawl toward the median, where it stopped. Hutchins then saw Wells climb out of the rear driver's side door of the car. Wells, holding both of his sides, hobbled across Fondren. Hutchins and his friends helped Wells over to the front of a nail salon. The only thing he heard Wells say to them was, "Please don't let me die." Hutchins brought towels out from the nail salon to try to stop Wells from bleeding. Hutchins left Wells with Reid, who was trying to bandage him, and he went back over to the car to check on its occupants.

Lashanda Reid testified in a prior proceeding in this case. Because she was unavailable to testify at the trial that is the subject of this appeal, her prior testimony was read into the record. Reid stated that she was standing in front of a business when she heard gunshots. Reid turned in the direction of the gunshotsand saw a "flash" and a "figure." Reid recalled telling the police in her statement that she saw the shooter and that she could tell the shooter was a man. She told the police that the man was "dark-skinned," and she clarified in her testimony that she meant that the man was African-American. She stated that the shooter was too far away for her to be able to tell what his actual complexion was. Reid also spoke with Wells, who appeared in shock, as she was assisting him. Reid testified that she asked Wells if he knew who shot him, and Wells responded, "No."

John Wells testified that he met Coleman and Houston when they started working for a company called Bargain Network, which had its office in the Arena Towers, in early 2007. Wells, Coleman, and Houston were part of a training group that met in the afternoon. The three of them became friends, and they would carpool home after work. Appellant had also recently started working at Bargain Network and was attending the morning training session. Appellant and Coleman knew each other from high school, and, occasionally, as appellant was leaving training for the day and Coleman was beginning, appellant would pass by Coleman's work station and call him derogatory names. At work on the day of the shooting, appellant walked over to Coleman and started talking to him. The conversation turned into an argument, during which appellant again called Coleman derogatory names. Appellant then told Coleman, "Meet me outside," and, as he was walking away, appellant said, "I got you."

Around 8:00 p.m., Wells, Coleman, and Houston left work in Houston's car. They were sitting at an intersection waiting to turn onto Fondren when Wells heard a "big bang." Wells, who was sitting in the back seat of the car, ducked down. He looked over and saw appellant, who was wearing a black hooded sweatshirt and something covering his mouth, standing at the front passenger window and shooting into the car. Wells tried to reach for the gun and open the car door, and as he did this, he was shot as well. After appellant stopped shooting, he said to Coleman, "I told you I'd get you." Wells recognized the voice as appellant's. Appellant then ran over to a car that was parked nearby and left the scene.

After appellant left, Wells managed to get out of the car and go to a nearby parking lot. Wells remembered speaking to a woman in the parking lot, but he did not remember her asking who shot him. When asked by the prosecutor if he knew, at that point in time, who had shot him, Wells responded, "Yes."

Wells spoke to the police twice at the hospital. The first time, he told the officer that "[a] guy at work" had shot him, because he did not know appellant's name. The second time, two days later, Wells viewed three photo-arrays. He did not identify anyone in the first photo-array, but he did identify appellant in the second photo-array. When asked who he was identifying, Wells responded, "I was identifying a person who shot me." Wells stated that he "knew exactly who shot [him]." Wells later gave a recorded statement to police, in which he describedwhat had happened earlier in the day at work and what had happened in the car. He again identified appellant as the shooter.

Lauren Philmon also worked at Bargain Network. She testified that she was in the same training group as Coleman, Houston, and Wells, which met in the afternoon. She testified that she had seen appellant at work and that he was part of the morning training group. She stated that, on the day of the shooting, appellant and Coleman started arguing while at work. She heard appellant tell Coleman that he "would be waiting for them after work." She stated that neither appellant nor Coleman was belligerent during this altercation, but she could tell from their attitudes and their tone of voice that they did not like each other.

Houston Police Department ("HPD") Sergeant J. Roberts was assigned to investigate the shooting. Sergeant Roberts testified that after he assisted in processing the scene he saw John Wells at Ben Taub Hospital. Wells was heavily sedated at the time, so Sergeant Roberts had only a brief conversation with him before Wells went into surgery. After this conversation, Sergeant Roberts received a telephone tip from Shelly Houston, Ralph Houston's sister, and she gave him the names of three potential suspects, including appellant. Sergeant Roberts obtained a photograph of appellant, and another homicide investigator prepared three photo-arrays, each one containing a picture of one of the possible suspects Shelly Houston had named. Sergeant Roberts then visited Wells in the hospital on May13, 2007, and showed him the photo-arrays.² The first and third photo-arrays did not contain a picture of appellant, and Wells did not identify anyone in these arrays. The second photo-array contained appellant's picture, and Wells pointed to appellant's picture and "identified him as Cliff who works with them at Bargain Network and also as the person who shot them." Sergeant Roberts testified that Wells "immediately" pointed to appellant's picture and that, when asked whether he was sure about his identification, Wells responded, "Yes." Sergeant Roberts was not able to speak with Wells about the details of the shooting at that time because Wells was still too weak from surgery, but Roberts interviewed Wells approximately two weeks later.

Appellant called Demarco Coleman, who was not related to the complainant Demonceon Coleman, as an alibi witness. At the time of the trial, Demarco was incarcerated on an unrelated offense and was dressed in the orange jumpsuit of the Harris County Jail. Before defense counsel called Demarco, he objected to requiring Demarco to testify in his jail clothes. Counsel stated:

We believe that the fact that [Demarco is] in an orange jumpsuit and clearly known to be in custody would be—would create an impression of untruthfulness and would take away from the witness' testimony. I feel like if he could be dressed in street clothing, he would be put on equal footing with all other witnesses that have appeared so far, Your Honor.

The trial court stated, "That ruling is denied." On direct-examination of Demarco, defense counsel called attention to his attire, and Demarco testified that he was currently in custody. He stated that he had previously been convicted of burglary of a habitation and that he had violated the terms of his probation, leading to his present incarceration.

Demarco testified that he arrived at appellant's apartment between 5:30 and 6:00 p.m. on May 11, 2007, and that he remained at the apartment for the entire evening. About four hours after he arrived, Demarco received text messages...