Kennedy v. State, No. 2-02-376-CR (TX 2/3/2005)
| Decision Date | 03 February 2005 |
| Docket Number | No. 2-02-376-CR.,2-02-376-CR. |
| Parties | PATRICK AARON KENNEDY, Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Supreme Court |
Appeal from Criminal District Court No. 1 of Tarrant County.
Panel B: DAUPHINOT, HOLMAN, and MCCOY, JJ. DAUPHINOT, J. filed a dissenting opinion.
In nine points, Patrick Aaron Kennedy ("Kennedy") appeals his jury conviction for the offense of murder. We affirm.
On the afternoon of November 5, 2001, Ginny Ward stood outside Enterprise Rent-A-Car, where she was picking up a vehicle, and observed Corey McMillan, the deceased, and Brandy Upchurch arguing in the adjoining parking lot of the Budget Inn. Ward testified that after McMillan yelled at and shoved Upchurch, Upchurch walked away from the motel. McMillan then began bringing out different items and loading them into his car located directly outside his first-floor motel room.
About twenty minutes later, Ward watched a grey Mustang, driven by Matthew Schiffert, Kennedy's uncle, and containing Kennedy and Upchurch drive slowly into the parking lot "like they were looking for someone." Near the exit, Schiffert revved the car motor, drove back around the lot, hit a parked rental truck, and stopped five or six inches behind McMillan's car. Ward watched Kennedy get out of the Mustang's front passenger seat and run up to McMillan, who stood up from the backseat of his car. According to Ward, McMillan was not holding anything and did nothing physical or aggressive toward Kennedy, who made a slashing motion toward McMillan that caused McMillan to back up from where he was originally standing. Kennedy then returned to the Mustang, which left in a hurry, but not before Devin Smith, an Enterprise Rental Car employee, wrote down the Mustang's license plate number. McMillan then went to the front of his car while holding his neck and hollering for somebody to help him. Ward testified that her husband helped McMillan to the ground and put his hands on McMillan's throat in an attempt to stop it from bleeding. McMillan died from two stab wounds, one in the left side of his neck and the other in the left chest.
Ward later picked Kennedy out of a photo lineup as the man who had stabbed McMillan, and police officers identified Schiffert as the owner of the Mustang. Kennedy was later arrested, charged with the murder, and pleaded not guilty. At the conclusion of his trial, the jury found Kennedy guilty of murder and sentenced him to twenty-seven years' confinement. This appeal followed.
In his fifth point, Kennedy complains the trial court erred by limiting defense counsel's question to a witness about weapons found in McMillan's room on the day he was killed and by excluding four photographs, defendant's exhibits 12-15, which showed the weapons and their location in the motel room.1 At trial, the defense sought to admit these exhibits three times: twice during the cross-examination of Detective Kevin Brown and again during Kennedy's case-in-chief. In response to the first attempt, the State objected that the evidence was irrelevant because the crime occurred outside the apartment and there was no evidence that anyone was near the room. Defense counsel replied that the photos were relevant because Ward testified that McMillan had been going in and out of the room while loading items in his car, and because they showed what had been going on inside the room moments before and possibly after the stabbing. The trial court reviewed the photos and sustained the State's objection.
Later, after establishing that McMillan's door was wide open and a large pool of blood was found right in front of the door, defense counsel asked Detective Brown whether a person could have thrown a knife or other weapon inside the door of McMillan's room. The trial court sustained the State's speculation and relevance objections, but admitted the exhibits for purposes of the record. The record does not reflect what Detective Brown's response would have been had the questioning been allowed. Defense counsel attempted to introduce the exhibits again during its case-in-chief, and the State renewed its relevancy objection, which the trial court sustained.
In order to preserve his complaint regarding the exclusion of the testimony, Kennedy was required to make an offer of proof or file a bill of exceptions. Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Johnson v. State, 925 S.W.2d 745, 749 (Tex. App.-Fort Worth 1996, pet. ref'd). Rule 103 provides, "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." Tex. R. Evid. 103(a)(2). In this case, Kennedy's failure to do so waived his complaint regarding the exclusion of Detective Brown's testimony. Johnson, 925 S.W.2d at 749.
In regard to the photos, Kennedy now argues that they were relevant to show that Kennedy acted in self-defense, to show McMillan's alleged violent character, and to show that McMillan was the first aggressor. Kennedy failed, however, to offer these arguments to the trial court in support of the admission of the photos. When the trial court excludes evidence, an appellant must object or offer argument in response to the State's objection to preserve error for appellate review. See Tex. R. App. P. 33.1(a)(1)(A); Johnson, 925 S.W.2d at 750. Failing to present a particular argument to the trial court and then making such an argument to the appellate court, as Kennedy does here, in effect usurps the trial court's function on such arguments. Johnson, 925 S.W.2d at 750. Accordingly, we overrule Kennedy's fifth point.
In his eighth point, Kennedy complains the trial court erred by limiting questions regarding his vision and preventing his trial counsel from making a bill when timely requested. At trial, Kennedy testified that he had "one good eye and one real weak eye." When the defense counsel asked Kennedy about the extent of the weakness, the State objected on relevancy grounds, and the trial court sustained the State's objection. Later, after both sides had rested but before the court's charge was read to the jury, the defense counsel asked to proffer evidence regarding what Kennedy's answers would have been to questions about his vision. The trial court denied the request, stating,
The original record did not contain such a bill. Therefore, pursuant to Spence v. State,2 we ordered this appeal abated and remanded the cause to the trial court for a hearing so that Kennedy could properly perfect the record. At the abatement hearing, the only evidence that Kennedy offered was that he is legally blind in his left eye and has to wear a corrective lense to see with his right eye. Kennedy failed to file a supplemental brief, as we permitted him, regarding the evidence presented at the abatement hearing, leaving us with only his contention in his original brief that "[b]ecause this is a situation where the [trial court] may have found the evidence to be admissible if the [c]ourt would have heard it, and the jury charge had not yet been read, this case should be reversed and remanded for a new trial." Because Kennedy has not filed a supplemental brief explaining why the evidence about his vision warrants a new trial, he has received all the relief required by Spence. See Spence, 758 S.W.2d at 600; see also Rodriguez v. State, 90 S.W.3d 340, 363 (Tex. App.-El Paso 2001, pet. ref'd); Rivera v. State, 981 S.W.2d 336, 341 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (both stating that proper remedy for trial court's erroneous refusal to allow a bill is to abate appeal to trial court so appellant can properly perfect the record). Accordingly, we overrule Kennedy's eight point.
In his first, second, and third points, Kennedy complains that the trial court erred by failing to instruct the jury as to (1) the lesser included offense of manslaughter, (2) the defense of third persons,3 and (3) sudden passion. In his fourth point, Kennedy argues the trial court erred in instructing the jury as to provocation.
To determine whether a jury must be charged on a lesser included offense, we apply a two-step test. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). The first step is to decide whether the offense is a "lesser included offense" as defined in article 37.09 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. Here, the State acknowledges that manslaughter is a lesser included offense of murder. Therefore, this issue turns on the second step.
The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense and not of the greater. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002); Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source that negates or refutes the element establishing the greater offense, or if...
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