Kirk v. State

• Decision Date: 13 July 2006
• Docket Number: No. 2-05-063-CR.,2-05-063-CR.
• Citation: 199 S.W.3d 467
• Parties: Lance Rayshawn KIRK a/k/a Lance Kirk, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

199 S.W.3d 467

Lance Rayshawn KIRK a/k/a Lance Kirk, Appellant, v. The STATE of Texas, State.

No. 2-05-063-CR.

Court of Appeals of Texas, Fort Worth.

July 13, 2006.

COPYRIGHT MATERIAL OMITTED

Don Hase, Arlington, for appellant.

Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Edward L. Wilkinson, Miles Brisette and Richard Bland, Asst. Criminal Dist. Attys., Fort Worth, for State.

PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Lance Rayshawn Kirk appeals his conviction for capital murder. The jury found Appellant guilty, and because the State waived the death penalty, the trial court sentenced Appellant to the statutory requirement of life imprisonment. See TEX.CODE CRIM. PROC. ANN. art. 37.071 (Vernon Supp.2005). In seven points, Appellant contends that the trial court erred by failing to appoint a second attorney to represent him, by overruling the motion to suppress one of Appellant's statements to the police, by failing to give properly requested limiting instructions, by admitting hearsay statements, and by excluding statements relative to Appellant's state of mind. He also asserts that his trial counsel was ineffective because he failed to immediately ask for a death-qualified lead attorney and failed to object to the admission of Appellant's statement because of the trial court's failure to appoint a second attorney to represent Appellant. We affirm.

FACTUAL BACKGROUND

On Wednesday, May 28, 2003, Appellant ran a stop sign driving a silver Infiniti. Officer Myers, a patrol officer with the Fort Worth police department, stopped Appellant for the traffic violation. Officer Myers entered the license number of the vehicle into his on-board computer before approaching Appellant, who was alone in the car. Appellant informed Officer Myers that he did not have his driver's license or proof of insurance, but he provided Officer Myers with his name and birth date. He told Officer Myers that the car belonged to his aunt. Appellant informed Officer Myers that he was not in school because he had just gotten out of teen court. Officer Myers went back to the vehicle to verify the information that Appellant had provided, but when he reached his patrol car, he saw that the computer screen indicated that the Infiniti was wanted in connection with a homicide.

Officer Myers radioed for assistance in making the arrest and returned to Appellant, told Appellant he was going to write him some tickets for failing to have his driver's license and proof of insurance, and asked Appellant to wait in the backseat of the patrol car. When Officer Stephens arrived, Officer Myers advised Appellant that he was placing him under arrest. Appellant jumped out of the car and slammed Officer Myers to the ground with enough force to knock him unconscious. Appellant was apprehended running through a neighborhood and was arrested for running from the police and injuring the two officers.

The silver Infiniti belonged to Robert and Joan Griswold. Officers had found the Griswolds dead in their home on May 27, 2003. The officers had responded to a welfare check at the Griswold home after Joan Griswold failed to come into work and her coworkers were unable to contact her. Officers found Robert Griswold's body lying on the dining room floor. He had been shot twice. Officers found Joan Griswold's body lying face down in the hallway. She had been shot in the back of the head once at very close range.

The evidence presented at trial showed that Appellant and Quntione "Montrel" Solomon spent the afternoon of May 24, 2003, at Appellant's mother's house. Appellant's mother was not there, and Appellant did not have keys to his mother's house, so the pair used a ladder to enter the house through a second story window. While there, they showered and played video games. Appellant informed Montrel that he was going to "borrow a truck" and left Montrel at the house alone. While Appellant was out, Montrel called his brother two times asking whether he had heard from Appellant.

Around 5:00 p.m. on Saturday, Appellant called his girlfriend, Jennifer Page. During the conversation, he informed Page that he was going to buy a car. Although Appellant had mentioned getting an older car, Page knew that Appellant did not have a job and depended on his mother for money.

Sometime between 4:30 and 5:30 that afternoon, Carla Sams answered the doorbell at her house in the Candleridge neighborhood of Fort Worth, and Appellant was standing outside. He asked her whether Casey stayed there. Sams noticed that as Appellant spoke, he leaned to the side to peer into the house a couple of times. She informed him that there was no one that lived there by that name, and she shut the door. She testified that she had not seen a car parked in the street behind Appellant, and she saw him walking towards Candleridge Park as he left.

That same evening Jacqueline Davis, her husband, and a neighbor finished unloading a heavy outdoor grill that they had just purchased. Davis' parents' house was just a short walk up a back alley from her house, right next door to the Griswolds' home. One of Davis' neighbors helped Davis and her husband unload the outdoor grill off of the truck. Davis escorted her neighbor to the back gate and watched her neighbor walk down the alley to his own backyard. As she did, she noticed a car coming down the alley, "faster than cars usually come down that alley." She saw Appellant, alone, driving a silver Infiniti down the alley.

Montrel testified that Appellant returned to his mother's house around sunset driving a silver Infiniti. He also had a cellular telephone and credit cards. Montrel testified that one of the cards had Robert Griswold's name on it. When Montrel asked Appellant how he got the car, Appellant told him that he got it from a "homeboy." Appellant drove the car to the Solomon house, where he and Montrel picked up one of Montrel's two brothers. The Solomon brothers were surprised to see Appellant driving the silver Infiniti. Appellant told Patrick Solomon that the Infiniti belonged to his uncle.

That evening, Saturday, May 24, 2003, Appellant drove Montrel and Kendrick Solomon to a party. They purchased gas with the credit cards that Appellant had obtained. During the night, Appellant and his friends used the recently acquired cellular telephone that had belonged to the Griswolds. Appellant told Kendrick that the cellular telephone was "his friend's cell phone," and he allowed Kendrick to use the phone.

On May 25, 2003, Appellant drove Montrel, Kendrick, and Wayne Kirk to the Parks Mall in the Infiniti. At a Footlocker store, they purchased athletic shoes, sports jerseys, shorts, and a headband using Robert Griswold's credit card. After shopping, Appellant treated his friends to a meal at a nearby restaurant. An Arlington police officer stopped Appellant as he drove the Infiniti in Arlington, but the officer only detained Appellant for a few minutes for the traffic violation.

The next day, Appellant returned to Footlocker with his friends to buy more clothes, and he continued to use Robert Griswold's credit cards throughout the weekend to buy gas, groceries, and other items. The third time that Appellant attempted to charge merchandise from Footlocker on Robert Griswold's credit card, the charge was declined due to suspicious activity for repeated charges at the same location over a number of days.

Appellant and his friends used the Griswold's phone throughout the weekend as well, and even programmed it with phone numbers. Appellant and his friends sent and received more than five hundred thirty calls over the four days that Appellant possessed the phone.

One evening that weekend, Appellant threw away a large number of credit cards near a Whataburger just off of Southeast Loop 820. The following Wednesday, Joan Griswold's wallet was found behind a business park near a Whataburger located just off Southeast Loop 820. The wallet contained Joan Griswold's drivers's license, military identification card, Sam's Club card, and a Bank of America check card.

On Memorial Day, May 26, 2003, Appellant drove the Infiniti to the Solomons' house to attend a cookout. Although Appellant parked the car nearby, he moved it before his mother arrived. On Tuesday, May 27, 2003, Appellant drove some friends to school and then drove himself to traffic court to appear for an earlier traffic violation. After school, he gave rides to a number of his friends, including his girlfriend Jennifer Page. Appellant told Page that he had bought the Infiniti for $800. However, when Page was riding in the Infiniti with Appellant, she noticed that Appellant immediately backed up out of sight down the street just as his mother drove by. Officers apprehended Appellant the following day.

After Appellant was arrested, he gave three statements to police. Appellant claimed that a high school friend, Landon Phillips, had given him the car, the credit cards, and the cellular telephone; however, the version of how he obtained the items from Phillips differed from statement to statement. The statements were inconsistent and were contradicted by witnesses, physical evidence, and phone and credit card records. Detective Brannan testified that Appellant had consistently changed his story to fit the questions that he was asking and the evidence that he confronted Appellant with.

FAILURE TO APPOINT SECOND ATTORNEY

In his first point, Appellant contends that the trial court erred in failing to appoint a second, death-qualified attorney to represent him. The State asserts that the error, if any, was harmless.

Appellant was arrested on May 28, 2003, and he was charged with capital murder that day. The following day, the trial court appointed Appellant's trial counsel. On August 20, 2003, Appellant was indicted in cause number 0891414D for the capital murders of Joan Griswald and Robert Griswald committed during the same criminal episode.

A...