Horace v. State
| Decision Date | 21 March 2012 |
| Docket Number | NO. 09-11-00172-CR,09-11-00172-CR |
| Parties | JOHN EDWARD HORACE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
A jury convicted appellant John Edward Horace of aggravated assault with a deadly weapon. In four appellate issues, Horace contends that (1) the judgment is void because the trial court accepted an invalidly rendered jury verdict, (2) a witness who was intoxicated at the time of the offense and at trial was allowed to testify in violation of evidentiary rules, (3) a photograph depicting Horace making gang signs was unfairly prejudicial and cumulative, and (4) trial counsel provided ineffective assistance. We affirm the trial court's judgment.
In his first issue, Horace argues that the judgment of conviction is void because the jury's verdict was invalidly rendered. Specifically, Horace complains that the trial court improperly polled the jury. After the trial court read the jury's verdict, defense counsel requested that the trial court poll the jury. The trial court proceeded to poll the jury, and with the exception of one juror, all of the jurors verbally stated "yes" on the record. The trial court asked one juror what his last name was, and the trial judge repeated the juror's surname and then stated, "Thank you, sir." Defense counsel did not lodge any objection to the polling procedure.
Because defense counsel failed to object to the polling procedure in the trial court, Horace has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Barnett v. State, 189 S.W.3d 272, 277 (Tex. Crim. App. 2006) (). However, even if Horace had preserved the issue, he would not prevail. Article 37.05 of the Code of Criminal Procedure provides as follows:
The State or the defendant shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if the verdict is his. If all, when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any juror answer[s] in the negative, the jury shall retire again to consider its verdict.
Tex. Code Crim. Proc. Ann. art. 37.05 (West 2006). As discussed above, the record does not indicate that the juror in question answered in the negative when polled. See id.
Rather, the record indicates that the juror either gave a non-verbal response or did not respond. The fact that the trial court said "Thank you, sir" when speaking to the juror suggests the possibility that the juror offered a non-verbal affirmative response, as does the lack of an objection by either side to the polling procedure. The verdict is not invalid under article 37.05. See id. We overrule issue one.
In his second issue, Horace contends that one of the State's witnesses was incompetent to testify because she was intoxicated both at the time of the offense and at the time of trial. During cross-examination, the witness testified that she was high on PCP at the time of trial. Defense counsel objected as follows: "Judge, I move to strike this witness and all her testimony because she is intoxicated at this time." The trial judge overruled the objection. Defense counsel also requested that the witness "be tested for PCP or any type of narcotic[,]" and the trial court denied the request. On redirect examination, the witness testified that she was not intoxicated at trial, but was intoxicated on the night of the offense.
It is generally presumed that every person is competent to testify. See Tex. R. Evid. 601(a). Exceptions to this rule include children and insane persons. Id. To be competent to testify, a witness must "possess sufficient intellect to relate transactions with respect to which they are interrogated." Watson v. State, 596 S.W.2d 867, 871 (Tex. Crim. App. 1980). Under Rule 601, the issue is whether a witness has the ability toperceive the relevant events, recollect the events, and the capacity to adequately narrate them. See Lewis v. State, 126 S.W.3d 572, 576 (Tex. App.—Texarkana 2004, pet. ref'd) (citing Watson, 596 S.W.2d at 870-71); Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd). Witness competency is a preliminary question for the trial court, and we will not disturb the trial court's ruling on appeal unless the appellant shows an abuse of discretion. Tex. R. Evid. 104(a); see Garcia v. State, 573 S.W.2d 12, 14 (Tex. Crim. App. [Panel Op.] 1978), overruled on other grounds by Turner v. State, 754 S.W.2d 668 (Tex. Crim. App. 1988); Solis v. State, 647 S.W.2d 95, 98 (Tex. App.—San Antonio 1983, no writ). Nothing in the record reflects an abuse of discretion by the trial court.
The influence of an illegal drug upon a testifying witness is one factor to consider in assessing the witness's credibility. Vasquez v. State, 67 S.W.3d 229, 237 (Tex. Crim. App. 2002) (citing Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997)). The jury is the ultimate authority on the credibility of witnesses and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). The possibility that the witness was intoxicated at the time of trial was a factor the jury could have considered in evaluating her credibility. See Vasquez, 67 S.W.3d at 237. Therefore, the trial court did not abuse its discretion by denying Horace's motion to strike her testimony. See generally Tex. R.Evid. 104(a); see also generally Garcia, 573 S.W.2d at 14; Solis, 647 S.W.2d at 98. Accordingly, we overrule issue two.
In issue three, Horace argues that a photograph depicting him wearing red and making gang signs was "unfairly prejudicial and unnecessarily cumulative." The trial court admitted the photograph into evidence as State's Exhibit 2 during the testimony of the victim, who testified that the photograph of Horace was taken by a photographer during a party at a nightclub "[l]ike tak[ing] pictures at the high school prom." The victim explained that in the photograph, Horace was "throwing up a Crip sign" in a nightclub filled with members of the Bloods, which is a sign of disrespect, and the victim feared that something bad was about to happen. Defense counsel lodged the following objection to the photograph: In response, the State contended that the photograph was relevant to the issue of Horace's intent and motive. The trial court overruled the objection.
On appeal, Horace argues that the unfairly prejudicial nature of the photograph outweighed its probative value because the photograph was cumulative of other photographs and depicted Horace as a "criminal[.]" We review the trial court's decision to admit the photograph into evidence under an abuse of discretion standard. Casey v.State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). Rule 403 of the Texas Rules of Evidence provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The trial judge has wide discretion in determining the admissibility of photographs. Sonnier v. State, 913 S.W.2d 511, 518-19 (Tex. Crim. App. 1995); see also Etheridge v. State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994); Legate v. State, 52 S.W.3d 797, 806 (Tex. App.—San Antonio 2001, pet. ref'd).
Under Rule 403, the trial court must balance the probative value of the offered evidence against the prejudice or harm that may result from its admission. Tex. R. Evid. 403; see Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh'g). In conducting an analysis under Rule 403, the trial court must balance the following factors:
Casey, 215 S.W.3d at 880 (citing Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)). A trial court abuses its discretion only when its ruling onadmissibility falls outside the zone of reasonable disagreement. Id. at 879; Montgomery, 810 S.W.2d at 391.
Because Horace was charged with aggravated assault with a deadly weapon, the State was required to prove that Horace intentionally, knowingly, or recklessly caused bodily injury to the victim by using a deadly weapon. Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (West 2011).1 Therefore, the photograph was relevant to the issue of whether Horace intended to provoke gang members and to instigate or incite an act of violence. See generally Dobbins v. State, 228 S.W.3d 761, 765 (Tex. App.— Houston [14th Dist.] 2007, pet. dism'd) (citing Henderson v. State, 825 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd)) (In determining accused's intent, the jury was entitled to consider events occurring before, during, and after commission of the...
To continue reading
Request your trial