Morrison v. State, 08–13–00319–CR
| Decision Date | 04 November 2015 |
| Docket Number | No. 08–13–00319–CR,08–13–00319–CR |
| Citation | 480 S.W.3d 647 |
| Parties | Roderick Morrison, Appellant, v. The State of Texas, Appellee. |
| Court | Texas Court of Appeals |
Katherine A. Drew, Assistant Public Defender, Dallas County Public Defender's Office, Dallas, TX, for Appellant.
Craig Watkins, District Attorney, Dallas, TX, for State.
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Appellant Roderick Morrison was charged with capital murder in the death of Jose Munoz–Bosquez. The jury found Appellant guilty of the lesser-included offense of murder, and the trial court sentenced him to 60 years in prison. Appellant raises four related points of error on appeal, contending the trial court violated his constitutional and statutory rights by excluding him from the courtroom during voir dire, and by not giving him any opportunity to reclaim his right to be present in the courtroom during the remainder of the guilt-innocence phase of his trial. Although we believe the trial court violated Appellant's rights when it excluded him from the courtroom without the opportunity to return, we conclude the error was harmless and affirm. The judgment of conviction, however, contains a clerical error mistakenly reflecting that Appellant was found guilty of capital murder. We therefore modify the judgment to reflect that Appellant was instead found guilty of murder.1
The day before Bosquez's murder, Appellant and 19–year–old Terrence Smith had been drinking and smoking marijuana together in an apartment they shared with Smith's sister, Doyan, who was Appellant's girlfriend and the mother of his child. Terrence Smith testified that he and Appellant left their apartment at approximately 9 or 10 that evening, with Appellant carrying an unloaded gun and a "clip" of ammunition.2 Shortly before midnight, Appellant advised Smith that he wanted the two of them to either rob someone or to "jack" a car. Smith explained that they were looking for a car with people in it, and that they intended to remove the individuals from the car, take the car, and later sell it. Smith claimed they had no intent to harm or kill anyone in the process. Smith testified that in the early morning hours, Appellant selected a car to "jack" that was parked in an isolated area in the parking lot of their apartment complex. As they approached the vehicle, Smith observed Appellant place the loaded "clip" inside the gun he was carrying.
The victim, Bosquez, who lived in the same apartment complex, was in the car with his girlfriend, Maria de Los Angeles Benitez. Appellant and Smith approached the vehicle on the passenger side where Bosquez was sitting. Appellant placed the gun through a crack in the passenger side window, pointed the gun at Bosquez's head, and ordered Bosquez out of the car. Appellant then told Smith to take Bosquez's wallet from his back pocket. As Smith was taking his wallet, Bosquez unsuccessfully tried to grab Smith's hand. Appellant ordered Bosquez not to move, and, in response, Bosquez raised his arms into the air. According to Smith, Appellant had his gun pointed within an inch of Bosquez's head this entire time.
Appellant next directed Smith to get Benitez out of the car. While Smith was attempting to open the driver's side door, Bosquez lunged at Appellant. Smith testified that Appellant fired his gun at Bosquez's head, resulting in Bosquez dying at the scene. Appellant and Smith immediately ran from the scene and returned to their apartment.
Benitez testified that she heard, but did not see the shooting. When she saw the two men run away, she left the scene in her car, fearing for her safety. She returned later, however, to describe the incident to police. Benitez testified that she was unable to provide a description of the two men to the police, because it was dark at the time and both she and Bosquez had been drinking.
A witness observed the two men running from the scene to their apartment, and the police were able to locate Appellant and Smith at their apartment within an hour of the shooting. During a search of the apartment, the police found Bosquez's wallet inside a couch, where Smith had placed it. The police took buccal swabs from both men's hands, and subsequent testing revealed gunshot residue on Appellant's hands.
Shortly after Appellant was arrested, Doyan visited Appellant in jail. During a recorded conversation at the jail, Appellant advised Doyan he had shot and killed a man that evening. Appellant claimed the shooting occurred during a struggle in which the victim had "jumped" Smith, and asserted he was simply trying to help Smith by getting the victim "off" of him. Appellant also told Doyan he had intended to shoot the victim in the shoulder, but that the bullet went through the victim's head. Appellant informed Doyan that he had placed the gun in a zippered section of the sofa. He asked Doyan to sell the gun, but she refused. During a subsequent recorded Jail-house phone call with Doyan, Appellant once again admitted to shooting the victim and repeated that he did not intend to shoot the victim in the head.
Appellant was indicted on a single count of capital murder, on the theory that he intentionally committed Bosquez's murder during the course of a robbery. On the first day of trial, Appellant made an outburst in the courtroom during jury selection, and the trial court granted defense counsel's motion for a mistrial. The trial court assembled a new jury panel the next day, but during voir dire, Appellant made a second outburst, and the trial court immediately removed him from the courtroom and placed him in a holdover cell where he was able to listen to the proceedings through a speaker for the remainder of the guilt-innocence phase of his trial.
During trial, Appellant's attorney repeatedly advised the jury that Appellant was not disputing the fact that he had shot the victim, and was not claiming that this was a case of mistaken identity. Instead, defense counsel argued that Appellant did not intentionally murder Bosquez during the robbery, as required for a capital murder conviction, and that the shooting was an unintentional, yet tragic, outcome of the events that occurred the morning of the shooting. Defense counsel acknowledged that his client was clearly guilty of the lesser-included offense of murder, admitting that Appellant shot Bosquez with a deadly weapon, albeit without intending to kill him. Defense counsel repeatedly advised the jury that he was not requesting an outright acquittal, and that he was instead requesting the jury to acquit Appellant of capital murder and instead find him guilty of the lesser-included offense of murder.3
At the close of evidence, the trial court instructed the jury that in order to find Appellant guilty of capital murder, it was required to find that Appellant had intentionally murdered the victim during the course of committing or attempting to commit the offense of robbery. The court also instructed the jury that if it had a reasonable doubt regarding whether Appellant was guilty of capital murder, it was required to consider whether Appellant was guilty of the lesser-included offense of murder. In the application paragraph of the charge, the trial court informed the jury that Appellant could be found guilty of murder if it found he had shot the victim "with a firearm, a deadly weapon [.]"4
The jury found Appellant guilty of murder. At Appellant's request, the trial court assessed Appellant's punishment, and the trial court allowed Appellant to return to the courtroom for his sentencing hearing. After finding the two enhancement paragraphs in the indictment (alleging that Appellant had previously been convicted of robbery and burglary of a habitation) to be true, the trial court sentenced Appellant to 60 years in prison.
In four separate points of error, Appellant contends the trial court violated his rights under the United States and Texas Constitutions, as well as his statutory rights, by excluding him from the courtroom during jury voir dire, and by not giving him the opportunity to reclaim his right to be present in the courtroom at any point during the guilt-innocence phase of his trial. Although we agree the trial court violated Appellant's constitutional and statutory rights, we conclude the trial court's error was harmless.
The record before us reflects that while Appellant was in jail awaiting trial, he engaged in conduct that caused him to be evaluated for competency to stand trial on several occasions.5 The first record we have is of a pretrial conference held on July 18, 2012, where it was revealed that Appellant's case had been reset on two prior occasions after Appellant had acted mentally ill during court proceedings, and that the trial court had ordered Appellant examined for competency to stand trial on both of those occasions. The trial court noted that the psychiatrists who had examined Appellant found him competent to stand trial on both occasions. Appellant's attorney acknowledged that the examining psychiatrists had expressed their opinions that Appellant had been purposely acting mentally ill in order to avoid trial. The trial court advised Appellant she would be setting the matter for trial, and admonished Appellant that he needed to cooperate with his attorney in preparing for trial.
At a subsequent pretrial hearing on July 11, 2013, defense counsel requested that Appellant be examined for competency once more before trial. During this hearing, Appellant denied that a third evaluation was necessary, and repeatedly stated that he had already been evaluated; that he understood the nature of the proceedings; that he was competent to stand trial; and that he was ready to attend his trial. The trial court nevertheless ordered a third evaluation, after which Appellant was once again found competent to stand trial.
Appellant's trial initially went forward with jury selection on August 26, 2013. Prior to voir...
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