Turner v. State

• Decision Date: 09 August 2012
• Docket Number: No. 02–10–00438–CR.,02–10–00438–CR.
• Citation: 413 S.W.3d 442
• Parties: Kory Nelson TURNER, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

413 S.W.3d 442

Kory Nelson TURNER, Appellant,

v.The STATE of Texas, State.

No. 02–10–00438–CR.

Court of Appeals of Texas, Fort Worth.

Aug. 9, 2012.

Larry M. Moore, Law Offices of Moore & Cummings, Allan K. Butcher, Law Offices of Allan K. Butcher, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Criminal District Attorney; Charles M. Mallin, Chief of the Appellate Section; Helena F. Faulkner, David Hagerman & Paige McCormick, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for State.

Panel: LIVINGSTON, C.J.; WALKER and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

Kory Nelson Turner appeals his conviction and twelve-year sentence for murder. He brings nine points: (1) the trial court violated his right to a public trial by excluding his family members from voir dire; (2–3) the trial court erred by refusing to allow testimony regarding prior acts of violence by the victim and the victim's character for violence; (4) the trial court erred by refusing to strike testimony regarding the victim's never having been violent in the past; (5–7) the trial court erred by refusing to allow appellant to present evidence of his peaceful character under rule 404 and to rebut the State's evidence of his aggressive behavior, thereby preventing appellant from presenting a complete defense under the Sixth and Fourteenth Amendments; (8) the trial court erred by refusing to allow appellant to present evidence that a key State's witness was subject to having been influenced by his arrest for family violence; and (9) the trial court erred by refusing appellant's timely requested jury instruction on criminally negligent homicide. We reverse and remand.

Background

David (Dave) Castello, a friend of appellant's, invited another friend of his, Leonard E. “Lenny” Keith, Jr., to a party at appellant's house. Appellant, Dave, and Keith were all drinking at the party. Early the next morning, after at least one confrontation with Keith about appellant's wife, appellant shot and killed him. A jury convicted appellant of murder.

Right to Public Trial

Appellant contends in his first point that the trial court violated his right to a public trial by refusing to allow some of the prospective jurors to sit in the jury box during voir dire to make room for appellant's family in the gallery. The State contends that appellant failed to preserve his appellate argument for review.

Preservation of Error

The following exchange occurred at trial:

THE COURT: All right. Outside the presence of the jury, it is my understanding that the Defense wishes to have family members present during the jury selection; is that correct?

MR. MOORE: Judge, his wife and his brother are here, and I've asked them to be here today for the express purpose to see if anybody on the panel knows them. I think his father-in-law is also here. I don't—in making an inquiry of the Court, it appears that the entire courtroom seating area is going to be full, so I have requested that the Court seat some of the potential jurors in the jury box so that I can have room to get at least those three people in the room.

THE COURT: Well, I'm going to deny that request, but I will allow you to have them come in if you would—for the purpose of introductions.

MR. MOORE: We'll do it that way, Judge.

THE COURT: I've got no problem with that.

MR. MOORE: I object to the Court's not making arrangements allowing them to be present for the voir dire examination.

THE COURT: Well, unfortunately, we are bringing in chairs to accommodate the large panel, and so I'm going to overrule your request.

MR. MOORE: Note my exception.

THE COURT: I understand. [Emphasis added.]

The Sixth Amendment guarantees to the accused in all criminal prosecutions the right to a “public trial”; this fundamental right was extended to defendants in state criminal prosecutions through the Fourteenth Amendment. See Herring v. New York, 422 U.S. 853, 856–57, 95 S.Ct. 2550, 2552–53, 45 L.Ed.2d 593 (1975); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). Although the violation of the right to a public trial is structural error—that is, error that does not require an appellant to prove specific prejudice to obtain a new trial, Steadman v. State, 360 S.W.3d 499, 510 & nn. 40–41 (Tex.Crim.App.2012)—a complaint that the right to a public trial was violated is nevertheless subject to procedural error preservation rules, Levine v. United States, 362 U.S. 610, 618–19, 80 S.Ct. 1038, 1043–44, 4 L.Ed.2d 989 (1960); United States v. Hitt, 473 F.3d 146, 155 (5th Cir.2006), certs. denied,549 U.S. 1360, 127 S.Ct. 2083, 167 L.Ed.2d 802,550 U.S. 969, 127 S.Ct. 2893, 167 L.Ed.2d 1154 (2007); Brandley v. State, 691 S.W.2d 699, 707 (Tex.Crim.App.1985); see also Lilly v. State, 365 S.W.3d 321, 327–28 (Tex.Crim.App.2012) (refusing to address appellant's right to public trial claims under the Texas constitution and code of criminal procedure because appellant failed to brief those arguments and authorities separately).

To preserve error for appeal, a party must have “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex.R.App. P. 33.1(a)(1)(A). The court of criminal appeals has held that

[a]s regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.

Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). The objection must merely be sufficiently clear to provide the trial judge and opposing counsel an opportunity to address and, if necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App.2009). In making this determination, an appellate court should consider the context in which the complaint was made and the parties' understanding of the complaint at the time. Id.

Appellant clearly objected to the exclusion of members of the public, his family, from the trial court proceedings. Although he did not give the trial court any constitutional authority for his objection to the exclusion of those family members, he made his desire for their inclusion clear even though he agreed to a less desirable alternative, i.e., their being introduced to the jury, over his objection. This case is similar to Clarke v. State, in which the court of criminal appeals held that the appellant's argument in his motion for new trial—that the prosecutor had deliberately allowed false material to be included in the presentence investigation report (PSI)—was the same substantively as his argument on appeal; the appellant “added more whistles and bells on appeal, but the tune was the same.” 270 S.W.3d 573, 580–81 (Tex.Crim.App.2008).

In Clarke, the appellant entered an open plea of guilty to sexually assaulting his fourteen-year-old step-cousin. Id. at 575. At the punishment hearing, the State proffered, and the trial court admitted, a PSI, in which Clarke's aunt said that “she had an intuition that perhaps the [appellant's] sister had a similar experience with her brother, but was afraid to relate the experience to anyone.” Id. At the beginning of the hearing, when the trial judge asked if anyone had a problem with the PSI, Clarke's counsel said that Clarke had no problems with the PSI “except for the ‘conjecture on behalf of the victim's mother.’ ” Id.

Clarke filed a motion for new trial, asserting that the PSI “contained totally unfounded allegations from the Complainant's mother ... that [Clarke] had molested his own sister.” Id. at 576. He argued at the motion for new trial hearing that “based on the affidavit by the complainant's mother, the prosecutor was aware that the implication in the PSI was false and that she ‘[t]ook no steps to alert the Court or defense counsel that this exculpatory evidence—that there was exculpatory evidence, namely the falsity of this extraneous offense.’ ” Id. at 577. On appeal, Clarke raised the following issue: “The prosecutor deliberately deceived the trial court during the punishment phase by allowing evidence concerning an alleged extraneous offense known by the prosecutor to be false, to remain in the presentence report, in violation of the Fourteenth Amendment of the United States Constitution and Article 1, Section 19 of the Texas Constitution.” Id. at 578. The Fourteenth District court of appeals, with Justice Mirabal dissenting, held that Clarke did not preserve this argument for appeal because

(1) he did not timely make a prosecutorial misconduct claim in his written motion for new trial or in any amendment to that motion, and (2) even if he had raised a prosecutorial misconduct claim at the hearing itself, he still waived any constitutional claim on appeal because he did not present any constitutional argument to the trial court at the hearing.

Id. (footnotes omitted).

The court of criminal appeals reversed, holding that Clarke had preserved his complaint, even though it was not set forth in his written motion for new trial, because he “argued at the new-trial hearing that the prosecutor was aware that the implication in the PSI was false and that the prosecutor had a duty to inform defense counsel and the trial court that the allegation was false.” Therefore, his complaint at trial and on appeal were “essentially the same” even though he did not cite...