Walker v. State

• Citation: 300 S.W.3d 836
• Decision Date: 01 October 2009
• Docket Number: No. 2-07-272-CR.,2-07-272-CR.
• Parties: Korey Demaine WALKER, Appellant, v. The STATE of Texas, State.
• Court: Court of Appeals of Texas

300 S.W.3d 836

Korey Demaine WALKER, Appellant, v. The STATE of Texas, State.

No. 2-07-272-CR.

Court of Appeals of Texas, Fort Worth.

October 1, 2009.

Wm. Reagan Wynn, Kearney Wynn, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Kimberly Colliet Wesley, Ashley Johnson, Assistant Criminal District Attorneys, for State.

PANEL: LIVINGSTON, DAUPHINOT, and MEIER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Korey Demaine Walker appeals his conviction and sixty year sentence for attempted capital murder.¹ See Tex. Penal Code Ann. § 15.01 (Vernon 2003), § 19.03 (Vernon Supp. 2009). In four points, appellant asserts that the trial court violated his Sixth Amendment right to confrontation and the right to expose bias on the part of a witness under Texas Rule of Evidence 613(b) by refusing to allow a line of questioning, that the trial court erred by failing to include a mistake of fact instruction in its instruction on self-defense, and that the trial court erred by providing an incomplete and ineffective limiting instruction regarding prior inconsistent statements used for impeachment purposes by a State's witness. We affirm.

II. Background

A. The Shooting

On May 8, 2002, appellant pled guilty to possession of more than four but less than two hundred grams of a controlled substance. Appellant did not appear at his January 10, 2003 sentencing hearing, so the trial court forfeited his bond and issued a warrant for his arrest.

Tarrant County Sheriff's Department Deputy Andrew Tatsch, who was charged with executing appellant's warrant, received new information regarding appellant's whereabouts from appellant's girlfriend, Joyce Williams, on September 11, 2003.² The trial court changed the address of the warrant, and Deputy Tatsch arranged for three other deputies, Deputies Hernandez, Johnston, and Pickle, to assist him in executing it. They met at a Costco near appellant's apartment at 6:00 a.m. on September 12, 2003, for a briefing with Deputy Tatsch. At the briefing, each deputy saw a photograph of appellant.

The deputies arrived at appellant's apartment around 6:45 a.m. Over the next forty-five minutes to an hour, the deputies intermittently knocked on the front door and announced their presence, getting progressively louder to the point of banging on the door and yelling for appellant to come out. Appellant never answered the door, but Deputies Hernandez, Johnston, and Pickle each independently noticed what they believed to be someone looking through the blinds.

When appellant did not come to the door, the deputies asked the apartment complex to bring a key to unlock appellant's front door. Jess Cross, the apartment complex's maintenance technician, arrived at appellant's apartment around 8:00 a.m. and gave the key to the deputies. The deputies had contacted a supervisor, Sergeant White, who arrived about the same time. When appellant still did not come to the door, the deputies used the key to attempt to open the door, but the door was locked from the inside with a keyless deadbolt.

Sergeant White authorized the deputies to breach the door by force. The deputies knocked at least one to two more times, and when there was still no response, Deputy Tatsch used a ram and forced the door open. Deputies Tatsch and Johnston entered the apartment first, followed by Deputy Hernandez and Sergeant White. Once inside, Deputy Tatsch announced his presence, stating, "sheriff's department, felony warrant."

The deputies made their way to the closed bedroom door. Deputy Tatsch kicked open the door. As the door slammed back shut, a shot was fired, and Deputy Tatsch was hit by the bullet.³ Although Deputy Tatsch did not see a muzzle flash from a gun, he did see appellant crouched down by the bed in the bedroom, and he felt the blast hit him. Deputies Tatsch and Johnston returned fire through the closed door. The two deputies then retreated around a corner as Deputy Hernandez, who was by the front door, called to Deputy Pickle to get an ambulance. Deputy Johnston testified that appellant, holding a gun in front of him, walked over to where Deputy Johnston was lying on the floor, then, after Deputy Johnston shot at him, kept going toward the door where he collapsed. Deputy Hernandez testified that when he looked back into the apartment, he saw appellant leaving the bedroom with a gun in his hand. Fearing for his life, Deputy Hernandez shot appellant twice. All of these events lasted approximately seventeen seconds.

After the shooting was over and appellant was subdued, Deputy Tatsch was taken to a hospital, where he was treated for his gunshot injuries. The surgeon who operated on Deputy Tatsch testified that he would have died without the surgery. Appellant was treated for his injuries at the scene and then taken into custody.

After the incident was over, the deputies and Sergeant White were separated, and detectives from the Fort Worth Police Department interviewed each of them independently. The police department conducted criminal and administrative investigations but did not file charges against any of the officers from the sheriff's department.

B. Trial proceedings

A grand jury indicted appellant for attempted capital murder and two counts of aggravated assault. Appellant pled not guilty at the outset of his trial. During cross-examination, appellant's counsel asked Sergeant White questions about the investigation following the incident. Appellant asked whether Sergeant White had an attorney present when he gave his statement to Detective Jamison, a detective for the major case unit of the Fort Worth Police Department. After Sergeant White admitted that a CLEET attorney was present, appellant asked Sergeant White if he knew about his Garrity rights.⁴ The prosecutor objected to the question on relevance grounds. After hearing arguments on the issue, the trial court sustained the objection; appellant made a bill for appellate review. During the questioning under the bill, Sergeant White testified that he did not invoke his Garrity rights. Appellant attempted to impeach this claim by showing that before his interview with Detective Jamison, Sergeant White read a card provided by the attorney, who was present during the interview, that stated he reserved his right to remain silent under the Fifth and Fourteenth Amendments and that "this is Garrity." But Sergeant White testified that he did not think this meant he invoked his Garrity rights because he gave a statement anyway.

The State also called Katrina Smith as a witness. Smith dated appellant before the incident, but continued to stay in contact with appellant after their relationship ended. Smith testified that appellant called her at 7:00 a.m. on the morning of the shooting and they had talked. Smith also testified that at some point that same morning, she had listened to a voicemail message from appellant in which he asked if she had sent the police to his apartment. But Smith testified that when she and appellant talked that morning, they did not discuss the police at all. The State asked Smith if she recalled statements that she had made to the police detective about the phone conversation she had with appellant. Appellant objected to the question and requested a limiting instruction to Smith's anticipated answer because appellant believed the prosecutor was attempting to impeach Smith by using a prior inconsistent statement. At this time, appellant submitted a limiting instruction to the trial judge, who read parts of the instruction to the jury before the questioning resumed. The trial judge admonished the jurors that impeachment testimony should be used to assess credibility. The judge declined to instruct the jury, as appellant requested, that impeachment testimony cannot be used to determine guilt or innocence and can only be used to assess credibility.

As part of the prosecutor's efforts to impeach Smith, the State also asked her about other prior inconsistent statements she made to the prosecutor. Appellant requested that the trial court provide another limiting instruction to apply to prior statements made to the prosecutor. The trial court instructed the jury that the previous limiting instruction again applied and should be used to assess Smith's credibility. The trial court again declined to instruct the jury that impeachment testimony only applies to credibility and cannot be used to determine guilt or innocence.

Later, still on direct, Smith testified that she recalled appellant indicating to her at least a couple of days before the offense that he wanted to die and that he would not be seeing her anymore. The State also asked if appellant sounded serious when he told Smith those things. Appellant objected, and at a bench conference, the State urged "that this was a suicide by cop and that he was not coming out and he is calling and saying his good-byes. So this goes to his mental state." But the trial court sustained appellant's objection. Even though the jury did not hear Smith's answer, one of the prosecutors briefly referred to the "suicide by cop" theory in her closing.⁵

During the charge conference, appellant objected to the trial court's proposed charge on several grounds. One objection was that a mistake of fact instruction should have been included in the self-defense application paragraph. Appellant argued that the mistake of fact defense applies not only to the elements of the charged offense, but also to the defense of self-defense, which is not available when an actor knows a peace officer is effecting an arrest. Appellant requested language stating that the jury should find in his favor on the element of self-defense if he was mistaken as to the identity of the peace officer. After argument, the trial court denied appellant's proposed instruction.

Appellant also objected to the trial court's instruction that Smith's impeachment testimony could be...