Woodall v. State

• Citation: 77 S.W.3d 388
• Decision Date: 02 May 2002
• Docket Number: No. 2-01-084-CR.,2-01-084-CR.
• Parties: Thomas Randall WOODALL, Appellant, v. The STATE of Texas, State.
• Court: Court of Appeals of Texas

77 S.W.3d 388

Thomas Randall WOODALL, Appellant, v. The STATE of Texas, State.

No. 2-01-084-CR.

Court of Appeals of Texas, Fort Worth.

May 2, 2002.

Pete Gilfeather, Fort Worth, for Appellant.

Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Asst. Criminal Dist. Atty. and Chief of Appellate Div., David M. Curl, Lisa Callaghan, and Jim Renfroth, Asst. Criminal Dist. Attys., Fort Worth, for Appellee.

Panel A: HOLMAN and WALKER, JJ.; and DAVID L. RICHARDS, J. (Sitting by Assignment).

OPINION

DIXON W. HOLMAN, Justice.

Appellant Thomas Randall Woodall was convicted of aggravated assault with a deadly weapon and sentenced to twenty years in prison. In five points, Appellant complains the trial court erred in: (1) overruling his motion for mistrial; (2) preventing him from cross-examining the sole eye witness about the witness' prior convictions; (3) overruling Appellant's objection to the admission of hearsay statements made by his wife; (4) overruling his objection and motion for mistrial based on the prosecutor's improper comments during jury selection; and (5) overruling Appellant's oral motion for continuance. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's wife worked at a topless club, Club Legacy. Appellant attempted to enter the club while intoxicated and a manager, Samuel Procell, refused to allow Appellant in. Appellant pushed Procell aside and entered. After Appellant argued with his wife and tried to get her to leave, Procell told Appellant that he had called the police, and Appellant left.

Later that night, Appellant called the club and demanded to speak to his wife. After Procell told him that she was dancing and that Appellant would have to call back later, Appellant told Procell that he had an "AK-47 waiting on [his] ass." Around midnight, as Procell escorted an employee to her car, he noticed Appellant's car in an adjacent parking lot. He began to walk quickly back into the club, but heard five or six gun shots and was hit.

Waiting in the parking lot was Alton Dean Bishop, whose wife worked as a waitress at the club. Bishop witnessed Appellant shoot Procell, followed Appellant's car, and memorized Appellant's license plate number. The police later found an AK-47 in a dumpster within seventy-five feet of Appellant's motel room and shell casings from the gun in Appellant's car. Appellant was charged with attempted murder and aggravated assault with a deadly weapon, but was only convicted of the latter charge.

THE PHOTOGRAPHS

In his first point, Appellant argues the trial court erred in overruling the motion for mistrial he filed after learning that several members of the jury viewed photographs that were not in evidence. At trial, as the jury was deliberating, it requested four items of evidence. In the evidence given to the jury, the trial court inadvertently included fifty-eight photographs that had not been admitted into evidence. The error was not discovered until the jury foreman handed the bailiff the jury's verdict along with the photographs. The trial court stated that it had ordered the bailiff to give the jury all of the exhibits.

At a hearing during which the trial court brought in each juror one by one, the foreman stated that only he and perhaps the juror next to him had seen two of the photographs, but not the remainder. However, at least six of the other jurors testified as to various photographs they viewed and accurately described the photographs' contents. The photographs seen by the jurors consisted of: (1) a crossbow on the bed in Appellant's motel room; (2) a pistol in the trunk of Appellant's car; (3) a knife in a drawer in Appellant's motel room; (4) an open bag or purse with a pistol inside it; (5) a white tennis shoe with blood on it; and (6) a picture of the outside of the strip club. All twelve jurors testified that the photographs did not influence their verdict. The jurors also testified that they quickly realized the photographs were not marked as exhibits and that they were not to consider them, so they turned them face-down and set them aside. However, the jurors' testimony as to whether or not any comments were made about the contents of the photographs was conflicting. Eight of the jurors stated they did not discuss the contents of the photographs in reaching their verdict, but others testified that some comments were made. One juror who said she did not see any of the pictures stated that a comment was made about an arrow. A second juror stated that someone made a comment to the effect of, "Wow, they have other weapons in the room," and a third juror stated that he remarked, "[t]hat was a big knife."

Standard of Review

Although Appellant's first point complains only about the trial court's decision to overrule his motion for mistrial, Appellant cites a case in support of his argument involving rule of appellate procedure 21.3(f),¹ which provides that a trial court must grant a defendant's motion for new trial when, after retiring to deliberate, the jury receives other evidence than that presented at trial. TEX.R.APP. P. 21.3(f). Because Appellant seeks review of whether the trial court erred in overruling his motion for mistrial, rather than whether the trial court erred in overruling his motion for new trial, the State argues that Appellant's reliance on the case involving rule 21.3(f) is misplaced.

We agree Appellant does not complain about the trial court's decision to overrule his motion for new trial and, therefore, will not decide whether the trial court's decision to overrule the motion for new trial is correct. However, Appellant clearly raises the issue of the jury's receipt of the photographs in his motion for mistrial and on appeal. Furthermore, Appellant raised the issue as one of the grounds in his motion for new trial. Therefore, we regard the cases involving rule 21.3(f) as instructive and will consider them in determining whether the trial court erred in overruling Appellant's motion for mistrial.

To obtain relief under rule 21.3(f) the burden is on the defendant to show that (1) the jury "received" evidence that was not admitted during trial, and (2) the evidence was detrimental to the defendant. Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim.App. [Panel Op.] 1981); Jones v. State, 772 S.W.2d 551, 556 (Tex.App.-Dallas 1989, pet. ref'd). Whether the jury has received the evidence is a fact question to be decided by the trial court. Guice v. State, 900 S.W.2d 387, 389 (Tex.App.-Texarkana 1995, pet. ref'd). The trial court's decision to overrule a motion for new trial will not be disturbed absent an abuse of discretion. Id. Moreover, a trial court does not abuse its discretion in overruling a motion for new trial where the testimony of the jurors is conflicting. Tollett v. State, 799 S.W.2d 256, 259 (Tex.Crim.App. 1990). At a hearing on a motion for new trial the trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); Tollett, 799 S.W.2d at 259.

In Mayo v. State, we held that the trial court did not abuse its discretion in determining that the jury did not "receive" additional evidence even though two draft copies of jury charges with several interlineations made by the trial judge and an instruction on the statute of limitations for the offenses charged were inadvertently left in the jury room. 17 S.W.3d 291, 295-96 (Tex.App.-Fort Worth 2000, pet. ref'd). We so held because the jurors testified they did not refer to the copies or consider them as evidence in their deliberations and the trial court found that the incident had no injurious effect or influence on the deliberations. Id.

In Escobedo v. State, the San Antonio Court of Appeals reviewed the trial court's decision to overrule the defendant's motion for new trial on rule 21.3(f) grounds. 6 S.W.3d 1, 8 (Tex.App.-San Antonio 1999, no pet.). There, Juror Norma DeSoto, stated in her affidavit and testimony that she told the other jurors of her mother's experience with gang vandalism. Id. The San Antonio Court of Appeals affirmed the defendant's conviction after holding that the jury did not "receive" the evidence because the foreman of the jury instructed the other jurors that Juror DeSoto's remarks could not be considered as evidence, and the record did not conclusively show that DeSoto's remarks prejudiced the defendant. Id. at 9. The court of appeals relied on the court of criminal appeals' holding that information treated as a "passing remark" does not require reversal. Id. (citing Stephenson v. State, 571 S.W.2d 174, 176 (Tex.Crim.App. [Panel Op.] 1978)).

Here, although at least six of the jurors testified that they saw one or more of the photographs at issue, all twelve of the jurors unequivocally testified that the photographs had no effect on their verdict because they did not consider the photographs as evidence. The foreman testified:

I picked up the photographs, and I was looking through them, and I said, "Well, I don't remember this photograph being in evidence."

And somebody said, "Is it marked?"

And I said, "No. There is [sic] a bunch not marked."

We flipped them over and looked at all the ones that were marked without looking at the photographs and separated them and put [the unmarked photographs] aside.

The other jurors corroborated this testimony by indicating that they quickly realized the photographs were not in evidence and that they could not consider them, so they put the photographs face down on another table away from the admitted exhibits. Juror Page testified, "[The Foreman] realized [the photographs] were something that wasn't marked, and he moved them." Juror Albert stated, "When we realized they were not stamped, I grabbed the stack and put if off on the table upside down face down." Juror Jones testified, "Whenever we discovered that they were pictures we had not seen.... They were immediately gathered up and put aside." Juror Vermeulen...