Kihega v. State
| Decision Date | 11 January 2013 |
| Docket Number | No. 06–12–00078–CR.,06–12–00078–CR. |
| Citation | 392 S.W.3d 828 |
| Parties | Brandon Cody KIHEGA, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Craig L. Henry, Texarkana, for Appellant.
Lauren Sutton, Asst. Dist. Atty., Texarkana, for Appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Charged with capital murder and found guilty by a Bowie County jury, Brandon Cody Kihega has filed an appeal with this Court. Kihega urges the unusual position that when the trial court ruled four of the State's witnesses were qualified as experts, such rulings amount to a comment by the court on the weight of the evidence. He also maintains on appeal that the trial court erred in denying his requested “benefit of the doubt” instruction to the jury pertaining to potential lesser-included offenses and asserts that a question asked a witness by the State constituted an impermissible comment on Kihega's failure to testify. We overrule the points of error and affirm the trial court's judgment and sentence.
While Kihega does not challenge the sufficiency of the evidence, a summary of the facts of the case will provide context for much of our analysis; consideration of the entire state of the evidence will be necessary for our discussion of the jury charge. On the night of February 23, 2011, Kihega, his brother, Justin Childs, and several other men gathered at the shop behind the house of the victim and Kihega's friend, Billy Stone. The men drank alcoholic beverages (and perhaps some smoked marihuana) as they entertained themselves talking about motorcycles 1 and guns. Kihega apparently wanted the entertainment to include a fight involving Childs and another person because Kihega is reported to have said the following about Childs: “[J]ust sic him on anyone, I want to see a fight.”
Not surprisingly, in a gathering of young men fueled by alcohol and a discussion of somewhat macho adult toys such as motorcycles and firearms, there apparently was some huffing and boasting or showing off. Stone's former spouse, Melissa Stone (Melissa), described Stone as having a propensity to exaggerate, saying that he was a “story teller” prone to telling “tall tales.” At the party on February 23, Stone told Kihega to go into the house and fetch a specific box of cereal or a sack (testimony differed), and when Kihega returned with it, Stone withdrew a stash of cash. The cash was bundled in bank straps, or wrappers of the kind used by banks, and Stone claimed to total $200,000.00. 2 In his post-arrest statement, Kihega said the money retrieved after killing Stone had only been stacks of single dollar bills, with hundred dollar bills on the top and bottom of the stacks, wrapped in bank straps; Kihega's description of the amount of cash varied from $1,200.00 to $3,700.00. Melissa also said that about two weeks before Stone's death, he had borrowed about $2,000.00 from an aunt. Two of the men at the drinking party that night described the exchange between Childs and Kihega as being a “bragging contest” and a “pissing contest.”
Eventually, most of the men left, leaving only Stone, Kihega, and Childs. Kihega gave two statements to police that were video recorded in which he said the three men sat around Stone's dining table, drinking whiskey and “play[ing]” with Stone's .44 Desert Eagle pistol. In his initial statement, Kihega said he was holding the pistol and it accidentally discharged, shooting Stone in the face. Kilhega maintained that this so startled him that the gun he held accidentally discharged a second time. In this version of events, Kihega said one shot was to Stone's face and one to his side, beneath his arm (Stone's body, though, only showed two bullet entrances, one to his face and one to the side of his head, over his ear.). A second scenario was later described by Kihega. In this later and alternate rendition, Kihega said that Stone had allowed him to hold and “play” with the pistol; in this second story, Kihega said he contemplated, for as long as forty-five minutes, whether to shoot Stone and that he ultimately decided to shoot Stone twice.
Two witnesses (investigating officer Robby McCarver and forensic expert John Beene) each debunked Kihega's story about the accidental discharge of the pistol, saying that such an accidental discharge was virtually impossible. Further, while Kihega suggested that his shots may have been accidental, that story was contradicted by the medical examiner, who said that the bullet wound to the head (above the right ear) evinced a small amount of soot around the entrance wound and that it had several “marginal lacerations.” Both of these things were characteristic of marks that would result when a gun was fired with the gun's muzzle being in contact with or while being held extremely close to the eventual entrance spot. This head wound injury was contrasted with the other, which was characterized by a more distinct round entrance wound having no evidence of soot or stippling around the wound site. Such facts suggested the gunshot injury to the face was inflicted by the gun when it was held a greater distance from the victim than the gunshot causing the wound to the head.
Law enforcement investigators recovered several shell casings from Stone's home, all of which had contained bullets fired from the Desert Eagle pistol. One shell casing with the same head stamp (indicating the caliber and manufacturer of the shell) as the shell casings from the murder scene was found in Kihega's bedroom.3 Another witness, Scott Neff, testified that a few days after the killing, Kihega contacted him and offered to sell him a Desert Eagle pistol. In order to demonstrate the pistol's effectiveness, Kihega fired it at some street signs. Neff said he reported this incident to law enforcement and told them where the shooting demonstration occurred. Later, at that location, Investigator Jerl Palmore said he found street signs with bullet holes and a shell casing bearing the same head stamp as those found at the murder scene (and thus, by extension, on the casing found in Kihega's bedroom).4
In Kihega's bedroom, police investigators also found a pair of Kihega's blue jeans, which appeared to have blood on them. Holly Cherain, a forensic scientist in the serology section of the Texas Department of Public Safety (DPS) crime laboratory, testified that she performed a “presumptive test for the presence of blood” and that the tests she conducted indicated “positive possible blood stains on the jeans.” After obtaining that positive presumptive result, Cherain preserved the stained sections of the jeans in a freezer so the laboratory's DNA section could do further testing. On cross-examination, Cherain acknowledged that this presumptive test did not conclusively establish the substance on the jeans to be blood. DPS crime laboratory forensic scientist Amber Moss testified that she tested the stain on the jeans and found DNA from Kihega, Stone, and a third, unknown person. Moss acknowledged that she could not conclusively testify that the stain was blood and further agreed that the DNA she obtained from that stain sample could have come from other sources, such as saliva or skin cells.
The State qualified four expert witnesses at trial: Dr. Reade Quinton as a medical examiner and pathologist; Cherian as a serologist; Moss as a forensic scientist capable of making a DNA analysis; and Beene as a firearms specialist. After each witness testified to his or her qualifications, education, and credentials, the State offered the respective witnesses as experts in their fields of expertise. When Dr. Quinton was offered as an expert, the trial court stated that the witness would “be so recognized.” Then, Kihega's attorney announced that he had an objection and asked to approach the bench. The reporter's record states the next part of the proceeding occurred “(AT THE BENCH, ON THE RECORD).” 5 Kihega's attorney objected that the expressed determination by the trial court, in the presence of the jury, that the witness was an expert would amount to an improper comment on the weight of the evidence. In the same fashion, Kihega objected when each of the other three witnesses were qualified as experts. In doing so, Kihega informed the trial court he would object, and the objections and trial court rulings all occurred after the reporter's record indicated, in each of the four occasions Kihega's objections were articulated “(AT THE BENCH, ON THE RECORD)” and after being overruled, the record indicates proceedings continued in “(OPEN COURT, DEFENDANT AND JURY PRESENT).” We point this out only because Kihega's points of error complain that the trial court impermissibly commented on the weight of the evidence when the court ruled “in the presence of the jury” that each of the proffered witnesses were experts. Strictly speaking, Quinton was the only one of the four witnesses whose status as an expert was ruled on by the trial court in the presence of the jury.
In support of his claims of reversible error, Kihega directs us to United States v. Johnson, 488 F.3d 690, 697–99 (6th Cir.2007). “Except in ruling on an objection, the court should not, in the presence of the jury, declare that a witness is qualified as an expert or to render an expert opinion, and counsel should not ask the court to do so.” Id. at 697–98. Federal circuit court opinions may be persuasive authority, but they are not binding authority on Texas courts. Guzman v. State, 85 S.W.3d 242, 249 n. 24 (Tex.Crim.App.2002); Reynolds v. State, 4 S.W.3d 13, 20 n. 17 (Tex.Crim.App.1999). Kihega cites no controlling Texas authority that a trial court improperly comments on the weight of the evidence by recognizing a witness as an expert in his or her field.6
That is not to say that Kihega has not raised an interesting point. ...
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...evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole.’ ” Kihega v. State, 392 S.W.3d 828, 835 (Tex.App.-Texarkana 2013, no pet.) (quoting Almanza, 686 S.W.2d at 171); (citing Tex.Code Crim. Proc. Ann. art. 36.19). Additionally,......
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