Harris v. State

• Decision Date: 22 April 2009
• Docket Number: No. 01-07-00391-CR.,01-07-00391-CR.
• Citation: 287 S.W.3d 785
• Parties: Kenneth Eugene HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

287 S.W.3d 785

Kenneth Eugene HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 01-07-00391-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 22, 2009.

Rehearing Overruled June 9, 2009.

Allen C. Isbell, Houston, TX, for Appellant.

Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.

EN BANC OPINION

TERRY JENNINGS, Justice.

Under Texas Rule of Appellate Procedure 50, we withdraw our January 29, 2009 en banc opinion, substitute this opinion in its place, and vacate our January 29, 2009 judgment.

A jury found appellant, Kenneth Eugene Harris, guilty of the offense of manslaughter with a deadly weapon¹ and assessed his punishment at confinement for twenty years. In four points of error, appellant contends that the trial court erred in instructing the jury to unanimously agree to acquit him of the offense of manslaughter before considering whether he was guilty of the lesser-included offense of criminally negligent homicide, in overruling his objection to the State's argument that the jury must unanimously agree to acquit him of the offense of manslaughter before considering whether he was guilty of the lesser-included offense of criminally negligent homicide, in permitting an expert witness to testify when the State did not disclose the witness to him before trial, and in overruling his motion for continuance when the State's undisclosed, expert witness testified against him.

We affirm.

Factual Background

Brian Barrett, the boyfriend of the complainant, LaTonya Comeaux, testified that on July 10, 2005 at approximately 2:00 a.m., he and a group of five or six people left Mr. Gino's nightclub. Barrett's group decided to cross Cullen Boulevard, a four-lane road with a median in between the two northbound and two southbound lanes, in front of the nightclub, instead of walking to the nearest intersection, because they "were just following the crowd." Barrett and the complainant separately crossed the street in order to get to his car in a parking lot. He explained that, after the complainant had "just" stepped onto the curb,² a car, traveling "at least" forty miles per hour, collided with the complainant. After the car collided with the complainant, the driver of the car stopped for approximately "15 seconds" before leaving the scene. Emergency paramedics pronounced the complainant dead at the scene.

Keisha James testified that on July 10, 2005, after leaving the nightclub at approximately 1:50 a.m., she was riding as a front-seat passenger in another car when she suddenly heard a screeching noise for "[m]aybe a couple of seconds" to "five seconds" and a subsequent "boom." James turned around upon hearing the screeching and saw that a dark-colored Pontiac went up on the curb, striking the complainant on its front windshield, which caused the complainant to land in the street. When the Pontiac came off of the curb and back onto the street, the driver "was driving slowly[,] trying to avoid the [complainant] on the ground," and it "seemed" like the Pontiac ran over the complainant.

Being in the next lane over from the car, James saw that a "young[,] black male with a low cut" drove the car that had collided with the complainant. As the car passed James, she memorized the car's license plate number. After police officers arrived at the scene, James told them the license plate number of the car that had collided with the complainant. Two days after the collision, Houston Police Department Sergeant A. Davis showed James a photographic array, and she identified appellant as the driver of the car that struck the complainant.

Houston Police Department Officer S. Martinez testified that he arrived on the scene approximately thirty minutes after the collision and immediately began reconstructing the accident and gathering evidence. Martinez opined that, given the approximately 225 feet of skid marks made by appellant's car at the scene, the car must have been traveling at approximately seventy-three miles per hour in a forty mile per hour speed zone before it struck the complainant. Martinez also noted that the "area was not well-lit," but "it was lit enough to where [a person] would have seen a pedestrian crossing the street." Martinez further added that it would have been "safest" for the complainant to have crossed the "four-lane" street at an intersection. Martinez stated that the complainant wore a "black and white" dress, which was primarily "white."³

Houston Police Department Officer T. Perrin testified that "lighting was not a factor" in causing the collision and it would not have been difficult for appellant to have seen the complainant crossing the street, even though the complainant wore dark clothing.

Houston Police Department Officer R. Gonzales testified that at the time of the collision, the weather was "cloudy," the road was "dry," and there was "a lot of artificial lighting" in the area.⁴ Gonzales added that there was not a crosswalk for the nightclub's patrons to cross when going to the parking lot and the nightclub was not near an intersection. Thus, Gonzales noted that it was likely that the complainant was not crossing at an intersection or crosswalk when the collision occurred.

Officer Gonzales further testified that on July 10, 2005, he was working at the nightclub. After the collision, witnesses informed Gonzales that a green-colored, Grand Prix Pontiac had struck the complainant. The witnesses also told him the license plate number of the car that had struck the complainant. By talking to people he knew in the nightclub and the local neighborhood, Gonzales "put the word out" of the description of the suspect's car. A few weeks later, Gonzales received a tip about a car which matched the description at 4611 Brinkley in Houston.

Houston Police Department Officer W. Wallace testified that he accompanied Officer Gonzales to 4611 Brinkley. When they arrived at the address, they immediately recognized that the car's license plate number matched the license plate number given to Gonzales by the witnesses to the collision. After removing a tarp from the front windshield, Wallace noticed that the front windshield was broken and there was blood, hair, and an earring inside of the car. Identigene Forensic DNA Analyst Jennifer Otto testified that the DNA from the blood and hair recovered from the car matched the complainant's DNA. After processing the car's information, Wallace learned that Ben Davis was the registered owner of the car.

Davis testified that, although the Grand Prix Pontiac car was registered under his name, he had sold the car to his cousin, appellant, in March of 2005. Davis and appellant agreed that appellant was to assume the car payments and, once appellant finished paying off the car, Davis would pass title to appellant. Davis verified that appellant lived at 4611 Brinkley.

Jury Charge

In his first point of error, appellant argues that the trial court erred in instructing "the jury to agree unanimously to acquit appellant of manslaughter before it could consider whether [appellant] was guilty of the lesser included offense of criminally negligent homicide" because this "sequencing" instruction, also referred to by appellant as an "acquittal first" instruction, "results in undue restrictions and pressure on the jury," "encourages mistrials," and "impedes judicial economy." As the fundamental premise to his argument, appellant asserts that "[t]he law does not require that the jury unanimously agree that an accused is not guilty of a greater offense before they may consider a lesser offense."

In analyzing a jury-charge issue, our first duty is to decide if error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.App.2003). Only if we find error, do we then analyze that error for harm. Id.

Appellant complains of the following provision of the trial court's jury charge: "Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of manslaughter and next consider whether the defendant is guilty of the lesser offense of criminally negligent homicide." (Emphasis added).

In Boyett v. State, the Texas Court of Criminal Appeals explained that when a jury is asked to consider lesser-included offenses in determining the guilt of a defendant, the jury charge should "explicitly" instruct jurors that if they do not believe, or if they have a reasonable doubt of a defendant's guilt of a greater offense, "they should acquit" the defendant of the greater offense and then "proceed to consider whether [the defendant is] guilty of the lesser included offense." 692 S.W.2d 512, 515 (Tex.Crim.App.1985). Although appellant acknowledges that the Texas Court of Criminal Appeals in Boyett expressly approved of the "acquittal first" instruction that he complains of here, he contends that,

The majority opinion [in Boyett] relied solely upon a form book sample jury charge for its holding that the jury charge should have instructed the jury to acquit the defendant of the greater offense before considering a lesser offense. The majority opinion did not explain why a unanimous agreement to acquit of a greater offense is required before the jury is allowed to consider guilt of a lesser included offense.

Appellant asserts that there is "no such requirement under Texas statutory or constitutional law," citing Hutson v. State, No. 03-99-00523-CR, 2000 WL 298675 (Tex. App.-Austin Mar. 23, 2000, pet. ref'd) (not designated for publication). In Hutson, the Third Court of Appeals, referring to article 37.14 of the Texas Code of Criminal Procedure,⁵ opined that "Texas law contemplates [that] the courts may give juries free choice among greater and lesser-included offenses" as "options rather than a sequence of choices descending from the greatest offense"; "otherwise there would be no need for the statute establishing that...