Rickey Ellison v. State
2015 Tex. App. LEXIS 8483
| Tex. App. | 2015Background
- In 1981 Rickey Ellison was implicated in a series of crimes: murders of Cassandra Jackson and Jimmy Milo, abduction of Barbara Scott, and attempted capital murder of Deputy Lacey; Ellison was convicted in 1982 for the attempted murder of Lacey.
- Bullets recovered from the Jackson, Milo, and Lacey scenes were submitted to the DPS lab in 1981; a two‑shot derringer (Wilson’s gun) was later recovered at Ellison’s 1981 arrest site and tested in 1982.
- The original 1981 DPS analyst (Fred Rymer) who test‑fired the derringer and compared test bullets to evidence bullets died before the 2011 Milo trial.
- In 2011 Calvin Story (a DPS ballistics examiner) testified he independently compared the evidence bullets and also relied on Rymer’s 1981 test bullets to conclude the evidence bullets were fired from the same derringer.
- The State introduced a photocopy of the derringer and a photograph of chain‑of‑custody documents; medical examiner Dr. Bayardo identified the Milo decedent; Detective Villegas, Scott, and prior statements by Ellison corroborated the ballistics link and admissions.
- Ellison was convicted of Milo’s 1981 murder and received life; he appealed arguing Confrontation Clause and hearsay errors (ballistics provenance, chain‑of‑custody documents, victim ID) and errors in admitting punishment‑phase reputation/opinion evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Story’s testimony about Rymer’s creation of test bullets (Confrontation) | Rymer’s statements re: firing test bullets were testimonial; Story’s reliance on those statements denied Ellison right to confront Rymer | Rymer was unavailable (dead) and Ellison had prior opportunity to cross‑examine Rymer at the 1982 Lacey trial; Story also gave his own independent opinions | Admission did not violate Confrontation Clause; even if error, it was harmless beyond a reasonable doubt — Issue overruled |
| Hearsay challenge to Story’s reliance on Rymer (Rules of Evidence) | Story’s testimony admitted Rymer’s out‑of‑court findings as hearsay | Under Tex. R. Evid. 703 experts may rely on hearsay reasonably relied upon in the field; Story testified this practice is common; Story also performed independent comparisons | Trial court did not abuse discretion admitting the testimony; any evidentiary error was harmless under Rule 44.2(b) — Issue overruled |
| Admission of photograph of chain‑of‑custody and envelopes (hearsay / confrontation) | Photograph and documents contained hearsay and implicated confrontation problems | Photo was used to illustrate lab procedure and corroborate which items Story examined; it was not admitted for truth of asserted matter | Admission within trial court’s discretion and cumulative of other evidence; any error harmless — Issue overruled |
| Medical examiner’s identification of Milo (hearsay / confrontation) | Dr. Bayardo relied on toe tag/medical investigator (police) not personal knowledge, so testimony was hearsay and Confrontation Clause problem | Detective Villegas — who knew Milo and identified the body — testified earlier and was subject to cross‑examination | Even if admission erred, Villegas’s live testimony established identity; any error harmless — Issues overruled |
| Punishment‑phase reputation and opinion testimony (Confrontation / predicate / improper opinion) | Detective Meaux testified about Ellison’s 1981 reputation and character for violence without personal knowledge or proper predicate, violating Confrontation and rules on opinion/reputation evidence | Evidence was brief and cumulative to strong substantive evidence and prior convictions; error, if any, would not affect punishment | Any error was harmless beyond a reasonable doubt given overwhelming admissible evidence; issues overruled |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial out‑of‑court statements unless witness unavailable and defendant had prior opportunity to cross‑examine)
- Pointer v. Texas, 380 U.S. 400 (1965) (right to confront adverse witnesses applied to states via Fourteenth Amendment)
- Maryland v. Craig, 497 U.S. 836 (1990) (Confrontation Clause purpose: ensure reliability through adversarial testing)
- Scott v. State, 227 S.W.3d 670 (Tex. Crim. App. 2007) (factors for harmless error analysis of Crawford violations)
- Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006) (harmless‑error discussion for Confrontation Clause and cumulative evidence)
- Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (overarching harmless error principles; strength of evidence relevant)
- Martinez v. State, 22 S.W.3d 504 (Tex. Crim. App. 2000) (expert may base opinion on otherwise inadmissible hearsay under Rule 703)
- Clay v. State, 240 S.W.3d 895 (Tex. Crim. App. 2007) (erroneously admitted hearsay may be harmless when same matter is established by other evidence)
- Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) (constitutional‑error harmless‑beyond‑reasonable‑doubt standard)