King v. State

• Decision Date: 24 September 1997
• Docket Number: No. 72145,72145
• Citation: 953 S.W.2d 266
• Parties: Calvin Eugene KING, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 266

953 S.W.2d 266

Calvin Eugene KING, Appellant, v. The STATE of Texas.

No. 72145.

Court of Criminal Appeals of Texas.

Sept. 24, 1997.

Douglas M. Barlow, Beaumont, for Appellant.

John R. DeWitt, Assistant District Attorney, Beaumont, Matthew Paul, State's Atty., Austin, for State.

OPINION

KELLER, Judge.

Appellant was convicted in June, 1995 of the capital murder (murder in the course of a robbery) of Billy Ezell. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). ¹ Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises fourteen points of error. We will affirm.

Appellant does not challenge the sufficiency of the evidence supporting his conviction. Accordingly, only a brief recitation of the facts is necessary.

Several individuals were engaged in drug trafficking at the Cedar Sands Motel during the time period near the date of the offense. On the night of the murder, appellant and Leonard Johnson bought drugs from Billy Ezell. Appellant, Johnson and Ezell were seen going in and out of appellant's motel room throughout the night and early morning. Later that morning, appellant returned to his rented apartment. He was covered in blood. He possessed crack cocaine and blood stained money, and bragged to his girlfriend that he "had to kill a white boy because the white boy was trying to kill him." Appellant told his girlfriend that he "hit (Ezell) over the head with a lamp, put a cord around his neck and slice (sic) his throat." One of the motel's owners discovered Ezell's body in the room registered to appellant. The causes of death were multiple stab wounds and blunt force injuries.

I.

In appellant's first point of error, he complains that the court committed reversible error when it failed to comply with the mandatory provisions of art. 34.04. Article 34.04 establishes notice requirements regarding the venire panel:

Where the venire is exhausted, by challenges or otherwise, and additional names are drawn, ... the clerk shall compile a list of such names promptly after they are drawn and if the defendant is not on bail, the sheriff shall serve a copy of such list promptly upon the defendant.

In the present case, the trial court, seeing a potential need for a supplemental panel, secured an additional jury pool from which twenty names were drawn. Once the supplemental list of twenty veniremen became available, the trial court presented defense counsel with the list:

The State: Also, Your Honor, if I may at this point and so that the record is clear, I have secured from the District Clerk's office a certified copy of a list of the pool from which the supplemental venire of 20 will be drawn. Presented that to the Court. May the record reflect that the defendant or his counsel has in fact been served with that?

The Court: Let the record reflect that I gave the list to Mr. Michael Laird (defense counsel) yesterday, June 1st, 1995, of the additional people that have been summoned as potential venire people in this case. Is that correct Mr. Laird?

The State: Thank you Your Honor.

Mr. Laird: That's correct Your Honor

The Court: Thank you. We're in recess.

Eleven days after this exchange took place and six days after the jury had been selected, appellant filed a motion to dismiss the jury and declare a mistrial on the basis that the trial court provided the supplemental list to counsel rather than having the sheriff personally serve the defendant as required by statute.

We do not reach the merits of appellant's first point of error as he has failed to preserve error for review. To preserve an issue for appellate review, the defendant must make a timely request, objection or motion stating specific grounds for the ruling he desires the trial judge to make; the objection must be made at the earliest opportunity. Tex.R.App. Proc. 52(a)(West 1996)(Now Rule 33.1); Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App.1993) (and cases cited therein). Appellant claims that his objection to improper service was timely because he filed his motion prior to trial. "Prior to trial," however, was not the earliest opportunity for appellant to object. To preserve error, defense counsel should have objected when he was presented with the list. Appellant's first point of error is overruled.

II.

In points of error two and three, appellant complains that the trial court committed reversible error by failing to grant his challenges for cause regarding veniremen ten and forty-one. It is appellant's contention that neither venireman could consider the minimum punishment for the offense of murder, and were thus challengeable on the basis that they had bias or prejudice against the law upon which appellant was entitled to rely. See art. 35.16(c)(2).

We need not address the merits of this allegation because any error would be harmless. Because appellant was convicted of capital murder, any error relating to the punishment range of the lesser-included offense of murder made no contribution to appellant's conviction or punishment. See Dowthitt v. State, 931 S.W.2d 244, 251 (Tex.Crim.App.1996); Jones v. State, 843 S.W.2d 487 (Tex.Crim.App.1992) cert. denied 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Appellant's points of error numbers two and three are overruled.

III.

Appellant's fourth and fifth points of error concern an out-of-court statement made by Angelita Williams. Police officer Leslie Apple testified that a woman at the crime scene, Williams, "stated to me that a black male that she knew as King [appellant] ... possibly killed Billy." Appellant objected to the statement on two grounds; (1) that the statement was hearsay; and (2) that the statement was opinion testimony with no basis. Appellant's fourth point of error addresses the hearsay objection and his fifth point of error addresses the objection regarding opinion testimony.

A. HEARSAY

Appellant contends that the trial court committed reversible error in admitting hearsay. The State offered Williams' statement as an excited utterance under Texas Rule of Criminal Evidence 803(2). ² The trial court, after a hearing outside the presence of the jury, determined that the statement met the requirements of the excited utterance exception. Rule 803(2) states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * * * * *

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Appellant argues that Williams was not under the stress of excitement caused by the event or condition. Appellant contends that Williams had time to reflect, that she was "not relaying information she had just received, nor had the event prompting her demeanor just occurred." Appellant also contends that the statement did not relate to the event or condition--discovery of the body--because her statement regarded who caused the death rather than the dead body itself.

In determining whether a statement is an excited utterance under Rule 803(2), the pivotal inquiry is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event." McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992). The passage of time is but one factor to consider. Id. Thus, even if the event had not "just" occurred, Williams' statement may nevertheless be admissible if she was "still dominated" by the emotions surrounding the body's discovery.

During the hearing outside the presence of the jury, Officer Apple testified that shortly after 11:00 a.m., she and another officer arrived at the motel where the murder took place and determined that Ezell was dead. They secured the scene, removed everybody, and told fire department personnel not to go back into the motel room. Then, within thirty minutes of having arrived at the motel, Officer Apple walked downstairs and saw Williams for the first time. Apple testified that Williams was crying profusely and in an extreme emotional state. This testimony supports the notion that Williams was still under the emotional stress of a startling event, i.e. discovering that someone she had seen alive earlier that morning was dead. ³

Finally, appellant's contention that the statement did not relate to the startling event is without merit. The startling event--the discovery that Ezell was dead--clearly prompted Williams' statements about Ezell's comings and goings and who might have killed him. The statements about Ezell's death are related to the discovery that he was dead. Because the record supports the trial court's finding that the statement was admissible as an excited utterance, we cannot say that it abused its discretion in so finding. ⁴ Appellant's fourth point of error is overruled.

B. OPINION

Notwithstanding the statement's admissibility as an excited utterance, appellant contends in a related point of error that the trial court erred in admitting the statement because it was a personal opinion with no basis. ⁵ As previously noted, appellant objected to Officer Apple relating the above quoted statement not only on hearsay grounds but also "as being opinion testimony with no basis for the opinion."

In support of his argument, appellant cites authority for the propositions that no witness may voice an opinion as to guilt or innocence, and also that an opinion amounting to choosing up sides is inadmissible. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Mowbray v. State, 788 S.W.2d 658 (Tex.App.--Corpus Christi 1990, pet. ref'd), cert. denied, 498 U.S. 1101, 111 S.Ct. 999, 112 L.Ed.2d 1082 (1991).

We find appellant's argument unpersuasive. According to Officer Apple, Williams stated that "she believed that appellant possibly killed" Ezell....