Charles Ray DORSEY, Appellant, v. The STATE of Texas, Appellee.
No. 09-02-023 CR.
Court of Appeals of Texas, Beaumont.
Submitted May 13, 2003. Decided Aug. 28, 2003.
117 S.W.3d 332
Michael A. McDougal, Dist. Atty., Mike Griffin and Gail Kikawa McConnell, Asst. Dist. Attys., Conroe, for State.
Before BURGESS, GAULTNEY and BOYD, JJ.
OPINION
JOHN T. BOYD *, Justice.
In this appeal, appellant Charles Ray Dorsey challenges his conviction of murder and the jury-assessed punishment of forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In pursuing his appeal, he presents sixteen issues for our determination. We will discuss those issues sequentially as their decision may become necessary to the disposition of this appeal. For reasons hereinafter stated, we modify the judgment of the trial court. As modified, the judgment is affirmed.
In his first four issues, appellant contends the trial court reversibly erred in admitting evidence of the movie NEVER TALK TO STRANGERS (Columbia/Tristar 1995) because 1) it amounted to a comment on the weight of the evidence, 2) it was irrelevent, 3) it was in violation of Texas Rule of Evidence 404(b), and 4) its probative value was exceeded by its prejudicial value. Because they are interrelated, appellant argues them together. We will likewise consider them together.
As an appellate court, we review the trial court‘s decision to admit or exclude evidence under an abuse of discretion standard, and we may not reverse a trial court if its ruling was within the zone of reasonable disagreement. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996).
At trial, and after the State had presented its case in chief, appellant presented a vigorous defense supporting his assertion that the fatal shots were accidentally fired by his infant son. As a part of the State‘s rebuttal evidence, Montgomery County Sheriff‘s Detective Bonnie Tidwell was allowed to testify, over objection, that she had viewed the movie NEVER TALK TO STRANGERS. In particular, she said the movie concerned a female psychiatrist who has a flash back in which she remembers that when she was a child, her father “tells the little girl [the psychiatrist] to stay with him. He takes her in front of him, has a gun in his hand, takes the little girl‘s hands that‘s on the weapon, on the trigger, puts his hands over hers, pulls the trigger and kills her mother.” Subsequently, “she [the psychiatrist] killed her father and the police officer [with whom she had been involved]. And then she went on with her life.”
At trial, on direct examination by the State, McRae‘s testimony that she checked the movie out to appellant was unequivocal. When cross-examined about testimony in a prior trial of this case in which the record showed she had said she rented the movie to Pam and Chad Dorsey (appellant), McRae averred she did not remember that prior testimony, and reiterated that her present testimony as to the person to whom the movie was checked out was correct. Under redirect testimony, she testified that she particularly remembered the occasion because of the death of appellant‘s wife the week after the movie was rented, and that appellant had some physical characteristics that were “substantially different” from any of the other renters with whom she had contact. Even assuming there may have been conflicts between her testimony in the first trial and her testimony in this one, her testimony was still sufficient to bring it within the jury‘s exclusive province of resolving conflicts and assessing the credibility of the testimony and the weight to be given it.
In supporting his position that the admission of the testimony requires reversal, appellant argues that the only evidence connecting appellant with the movie was the “conflicting” testimony of the clerk. He reasons that even viewing her testimony in a light most favorable to the State, the State failed to bring any evidence that appellant actually watched the movie or was aware of the plot. As highlighting the differences in a proper predicate laid for the admission of movies, and the predicate laid here, appellant cites two cases, namely Morton v. State, 761 S.W.2d 876 (Tex. App.-Austin 1988, pet. ref‘d), and Parrish v. State, 950 S.W.2d 720 (Tex.App.-Fort Worth 1997, no pet.). That reliance warrants a discussion of the cases.
In Morton, the State‘s theory was that Morton had killed his wife in a fit of sexual frustration and anger after she had refused him sex. Morton, 761 S.W.2d at 877. In the appeal, the court addressed Morton‘s contention that a statement, in which he admitted that he and his wife had watched a sexually explicit movie prior to her rejection of him, was involuntary and not admissible. Id. at 878-79. It was in that context that the appellate court held Morton‘s statement was voluntary and properly admitted. Id. at 879. Because the statement was admissible, it was uncontroverted that Morton had watched the film, and thus the court had no occasion to discuss or consider the predicate necessary in an instance such as that before us. Indeed, more relevant is the court‘s discussion in which it held that the case depended upon circumstantial evidence and in such a case, the probative value of the portion of the film admitted exceeded its prejudicial effect. Id. at 881. Of course,
In Parrish, the State‘s theory was that appellant had murdered his wife to collect on her life insurance policy. Parrish, 950 S.W.2d at 721. The videotape in question there was made by the appellant and revealed that he had thought about collecting death benefits by defrauding an insurance company. Id. at 723-24. The court was concerned with the question whether the probative value of the evidence was outweighed by its prejudicial effect. Id. It concluded that the tape was admissible and relevant in establishing Parrish‘s intent, preparation, and plan to commit the crime charged. Id. at 724. The court had no occasion to discuss the requisites of a proper predicate in such a case because it was undisputed that the appellant had created the video. Rather, the court‘s primary concern was whether the prejudicial value of the video exceeded its probative value. The court concluded the tape was relevant as establishing the defendant‘s intent, preparation, and plan to commit the crime charged. In the course of its opinion, it noted, to the extent the evidence was prejudicial, “such is the inherent nature of evidence used by the State to prove its case.” Id.
It is axiomatic that determining the credibility of evidence and the weight to be given that testimony is within the province of the jury. In this circumstantial evidence case, the evidence was relevant and admissible to show appellant‘s motive and intent and that the shooting was not the result of an accidental firing by his two and one-half year old son. It was also sufficient to justify a reasonable conclusion that appellant did rent the film, did so for the purpose of viewing it, and that he viewed it.
Having made that decision, it now becomes necessary to review appellant‘s contention that the prejudicial effect substantially outweighed its probative value. In the seminal case of Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App. 1996), the Court of Criminal Appeals explicated that in making a determination of this kind, the reviewing court should consider: “1) whether the ultimate issue was seriously contested by the opponent of the evidence; 2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; 3) the compelling nature, or lack thereof, of the evidence; and 4) the likelihood that the evidence was of such a nature to impair the efficacy of a limiting instruction.” Id. at 322.
In applying those factors, first, the ultimate issue here, i.e., whether appellant‘s wife was shot by accident or whether appellant was the actual killer, was hotly contested. Second, the State had no other convincing evidence as to why appellant would say his small son shot Pamela. Third, only brief testimony about the movie was admitted rather than the movie itself. Fourth, because the movie concerned a fictional murder, it is unlikely that the jury would have used it for anything other than the purpose for which it was admitted. We conclude that in this circumstantial evidence case, the probative value of the evidence was not substantially outweighed by its prejudicial value. Thus, the trial court did not abuse its discretion in admitting the tape. Appellant‘s first four issues are overruled.
Appellant‘s next six issues concern the admission into evidence of a video tape of his son Conner‘s interaction with the holstered gun used in Pamela‘s shooting. The purpose of the tape was to determine whether Conner had the physical capability of pulling the trigger of the gun. The tape showed that Conner had the physical capability of pulling the trigger of the gun
The issues are interrelated and we will discuss them together. In issues five and six, appellant contends his federal and state due process rights were violated because the State maintained inconsistent positions between the first trial 1 and the second trial of this case. In his seventh, eighth, ninth, and tenth issues, appellant argues the trial court reversibly erred in denying his motion to suppress the video tape because it constituted an improper experiment, it constituted an improper interview, it constituted hearsay, and the tape was obtained in violation of a valid court order.
The tape was shot in an interview room at the sheriff‘s office. In the course of overruling appellant‘s objection to the admission of the tape, having previously viewed the tape, the trial court made findings that: 1) it was immaterial whether the taped episode was called an experiment or an interview; 2) significant factors were “the presence of the child, gun, holster, lighted room, apparently no pressure exerted one way or the other by anyone on the child;” and 3) it was not relevant whether the episode was filmed in a room that did not have a bed, whether or not there was a body there, and whether or not it looked like the room in which the decedent expired. Indeed, he opined, where the tape was shot was more conducive to a reasonable, realistic result than if it had occurred in the bedroom where the child may have had memories.
The record contains Officer Tidwell‘s description of the events shown on the tape. Other than the general objections to the admission of the tape we have noted, appellant initially made no objection to the narration of the events depicted. Tidwell‘s narrative was made as the tape was running before the jury and they could observe themselves what was taking place. Tidwell initially described the child running in front of her into the room. He picked up a couple of dolls that were in the room, looked at them briefly, threw them away, and went to the gun. It was not until that point that appellant objected to Ms. Tidwell‘s narrative of the events being shown on the tape. His objection was that “the tape which is in evidence speaks for itself.” That objection was not timely.
The tape continued to the point where the child picked up the weapon and attempted to open the strap part on the holster. Ms. Tidwell then narrated that when the child could not open the holster because of the strap on it, “we both together got it open and he took the weapon out of the holster and began to look at it.” She described the child‘s unsuccessful efforts to cock the double action pistol or to pull the trigger when it was uncocked.
Appellant initially argues that the State maintained inconsistent positions between the first and second trials “as to whether Conner‘s video tape was an interview or whether it was an experiment.” He posits that the difference in the terms occurred after his initial objection. The change in terminology, he contends, was material and adversely affected his due process rights because if the occurrence was an experiment, “it raised the legal issues regarding the legal requirements of an admissible police experiment.” As best we understand, he reasons that the State‘s transition to the term “interview” was an attempt “to shield itself from the legal requirements of an admissible experiment”
With regard to the admissibility of experiments, appellant cites and relies upon Marras v. State, 741 S.W.2d 395 (Tex. Crim.App.1987), overruled on other grounds by Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993); Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App. 1980); and Lopez v. State, 651 S.W.2d 413 (Tex.App.-Fort Worth), rev‘d and remanded on other grounds, 664 S.W.2d 85 (Tex. Crim.App.1983). These cases stand for the general principle that the results of an out-of-court experiment is admissible within the discretion of the trial court if the experiment was made under conditions similar to the event to which the results of the experiment relate. See Esquivel, 595 S.W.2d at 529. However, that principle is qualified by the fact that an experiment not made under exactly the same conditions goes to the weight and not the admissibility of the evidence. Id.
In arguing that the taped events were, in effect, a recreation of the crime, appellant places considerable reliance upon the statement by the Lopez court that “any staged, re-enacted criminal acts or defensive issues involving human beings” are “inherently dangerous, offer little in substance and the impact of re-enactments are too highly prejudicial to insure the State or the defendant a fair trial.” Lopez, 651 S.W.2d at 416. We find the reasoning the court employed in Marras helpful in considering this argument. In Marras, a capital murder case, the court was concerned with a videotape that showed the area through which an eyewitness walked after the witness viewed the crime. Marras, 741 S.W.2d at 404. The events shown on the tape were narrated by the witness as it was shown. Id. Marras had objected to the admission of the tape on the basis that the tape was not an accurate “duplication” and asked the appellate court to apply the reasoning of the Lopez court and hold the trial court erred in admitting the tape. Id. In considering that argument, although approving the Lopez explication, the Marras court said because the tape only showed the route taken by the witness and the accused after the crime was actually committed, it did “not depict any staged, re-enacted criminal acts” and the trial court did not abuse its discretion in admitting the tape. Id. Regardless of the nomenclature of the events pictured in the tape here, the reasoning employed by the Marras court is applicable. The events depicted on the tape were not a re-enactment of the crime itself, the tape was taken after the crime, and the weight to be given the events depicted was a matter within the purview of the jury as fact-finder. The trial court did not abuse its discretion in admitting the tape. Appellant‘s fifth and sixth issues are overruled.
In his seventh, eighth, and ninth issues, appellant contends that the videotape was the result of an improper experiment or interview and thus was inadmissible as hearsay. In advancing that proposition, he initially reasons that the events shown on the tape were analogous to the child testifying and, because the child was not placed under oath, nor was there any showing that he was competent to understand the obligation that court testimony be truthful, the tape was not admissible. We agree with the State that videotape of the activities of the child is comparable to the videotapes of a driver alleged to be intoxicated. The Court of Criminal Appeals has held visual depictions of sobriety tests are not testimonial and do not violate a defendant‘s federal or state constitutional right against self-incrimination. See Miffleton v. State, 777 S.W.2d 76, 80 (Tex. Crim.App.1989); see also Gassaway v. State, 957 S.W.2d 48, 50-51 (Tex.Crim.App.1997)(recitation of the al-
In this case, the videotape was played before the jury without sound. As we noted above, there was no attempt to re-create the actual shooting. That being so, and because the actions of the child were merely being observed, the rather strict restrictions governing the determination of the competency of child witnesses are not applicable here.
Appellant next contends that the child‘s activities in response to questions by Tidwell 2 amounted to inadmissible hearsay. He argues the fact that the child responded to Tidwell‘s questions by actions rather than words does not mean that Conner was not communicating with Tidwell. Thus, any opinion arrived at by Tidwell as to the child‘s ability to pull the trigger of the gun must necessarily be based upon the child‘s out-of-court conduct, i.e., inadmissible hearsay. To support that argument, appellant cites and relies upon D.L.N. v. State, 590 S.W.2d 820 (Tex.Civ. App.-Dallas 1979, no writ), a prosecution for alleged deviate sexual intercourse. However, that case is distinguishable. In D.L.N., in response to questions asked by the prosecution, the father of the complainant was allowed to testify about the child‘s re-enactment of the acts giving rise to the prosecution. Id. at 822. A minister was also present at the time and was allowed to testify about the child‘s actions in response to the questions. Id. It was in that context the appellate court decided the testimony was inadmissible hearsay. Id. In the instant case, none of the circumstances of appellant‘s version of the shooting were attempted to be re-enacted. Rather, the child simply performed physical responses that, when viewed by the jury, were relevant and admissible to aid them in assessing the credibility of appellant‘s testimony. Appellant‘s seventh, eighth, and ninth issues are overruled.
In his tenth issue, without citation of case authority, appellant complains that the trial court reversibly erred in denying his motion to suppress the videotape described above because it was allegedly obtained in violation of a court order. The failure to cite relevant authority could result in the waiver of this issue. See
At the suppression hearing, James McClure, the child‘s maternal grandfather testified. He averred he was present when the judge awarded custody of Conner to him and his wife, although they did not pick the child up until 6:00 or 7:00 in the evening of May 28. He said that at the hearing, the District Attorney had asked them to come to his office. When the couple arrived at the District Attorney‘s office, they were told that the authorities did not know exactly where Conner was at the time because the person in possession of him was “shopping or something.” They were informed the authorities would let them know as soon as they contacted “her.” Evidently, that reference was to the person with whom the child had been temporarily placed. When they were
Appellant‘s eleventh, twelfth and thirteenth issues are also interrelated and will be considered by us together. The gist of those issues is that the trial court reversibly erred in admitting Pamela‘s out-of-court statements that appellant would harm or kill her and her belief that appellant would take Conner away. As we have noted, a trial court‘s ruling on the admission of evidence is measured by an abuse of discretion standard. Its ruling should not be reversed if the ruling is within the “zone of reasonable disagreement.” See Green, 934 S.W.2d at 101-02 (quoting Montgomery v. State, 810 S.W.2d 372, 379-80, (Tex.Crim.App.1990)). Moreover, there is a “state of mind” exception to the hearsay rule which is codified in
(3) Then existing Mental, Emotional, or Physical Condition. A statement of the declarant‘s then existing state of mind, emotion, sensation, or physical condition (such as intent, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant‘s will.
In argument under this issue, appellant points out testimony the State elicited that Pamela was preparing to divorce appellant, that she believed appellant would harm or kill her, and that she believed appellant might take Conner away from her. He acknowledges that the testimony about Pamela‘s preparations for divorce fall within the “state of mind” hearsay exception. However, he argues, the testimony that Pamela believed Dorsey would harm or kill her or might take Conner away did not fall within the “state of mind” exception and was not admissible.
In support of his argument that reversal is required, appellant made record citations to portions of the testimony of Linda Reynolds, Pamela‘s work supervisor, Sherri Scarpa, a former co-employee with Pamela, Rachel Courreage, another former co-employee of Pamela, and Melvin Franklin, a Montgomery County sheriff‘s detective. In reviewing the portions of the record upon which appellant cites and relies, we find no testimony elicited by the State that Pamela believed appellant would harm or kill her or words to that effect.
With regard to appellant‘s threats to take Conner away from Pamela, appellant cites:
- Ms. Reynold‘s testimony on November 6, 2001 that Pamela “was afraid that her husband would take Conner and run away with him and she would never see him again.”
- Ms. Scarpa‘s testimony on November 6, 2001, that Pamela “was fearful of her husband“, and that she “was think-
ing of leaving her husband, Chad, and that Chad had told her that he would take the baby to Scotland, should she leave.”
Appellant made no trial objection to that testimony of Ms. Reynolds.
Moreover, assuming arguendo that the question was preserved for our review, because Ms. Reynolds‘s earlier and similar testimony had been admitted without objection, any error in the admission of the later testimony was cured. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim. App.1991) (an error in admission of evidence is cured when the same evidence comes in elsewhere without objection).
Additionally, in this court‘s earlier opinion, we held that hearsay testimony describing Pamela‘s fear of Dorsey was admissible to show her emotional state or “mental feeling” at the time she made such statements. Dorsey, 24 S.W.3d at 928. We also held that certain statements that were not reflective of Pamela‘s state of mind but rather were her memories of specific events were not admissible under
The testimony which led to the reversal of the first trial of this case was, in our words, “not reflective of Pamela‘s state of mind but instead were her memories of specific events” and thus not admissible under
In his fourteenth issue, appellant argues the trial court reversibly erred in admitting evidence of extraneous acts of appellant in violation of
On cross-examination, Stacy testified that on May 9, 1996, appellant came to her house to pick up some Amway products. Stacey testified that she was familiar with the couple‘s relationship and it was “not a good one” and “[t]hey argued all the time.” On May 9, 1996, she and appellant had a discussion about their relationship and appellant said “[t]hat he would pull the trigger first.”
On redirect examination by appellant, Stacy said that she had made a remark jokingly but his response was not joking. The record then shows the following colloquy between defense counsel and the witness:
Q. What did you say to him that got that response?
A. I said to him that, “One of these days you‘re going to open the paper and see ‘April Sound [the location of their residence] couple found dead in their home, double suicide[.]‘” And then I said, “No, it will be a double homicide, whenever you see it.”
Although appellant admits the statement was admissible as an admission by a party opponent, he argues it must also meet the requirements of
In his fifteenth issue, appellant argues the trial court reversibly erred in excluding the testimony of his expert witness Dr. Rex Frank, who, he says, would have testified about Conner‘s motor skills ability. Dr. Franks would have testified about the average grip strength of an average two and one-half year old child and whether such a child would have the strength to pull the trigger of a gun such as the one used in the shooting. After the State‘s objection to his testimony was sustained, appellant‘s careful trial lawyers included his testimony in a bill of exceptions and we have reviewed that testimony. The bill shows that the doctor‘s testimony was based upon various studies and, other than viewing a video tape of the child mowing grass and the State‘s video we have discussed above, he had never actually seen and tested Conner nor had he personally conducted any grip strength test on any child or children actually equivalent to Conner in age and fitness.
In his sixteenth and final issue, appellant complains of the deadly weapon finding in the trial court‘s judgment and asks us to reform the judgment to delete that finding. In relevant part, the indictment in this case provides:
Charles Ray Dorsey ... did then and there intentionally and knowingly cause the shooting death of an individual, namely Pamela Gale Dorsey, by shooting her.
The jury found appellant was guilty “as charged in the indictment.” It made no express finding as to the use of a deadly weapon.
In Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985), the court instructed that a trial court may not properly enter an affirmative finding concerning the defendant‘s use or exhibition of a deadly weapon during the commission of the offense unless:
- the deadly weapon or firearm has been specifically pleaded as such and the verdict reads “guilty as charged in the indictment“;
- where not specifically pleaded as a deadly weapon or firearm, the weapon pleaded is per se a deadly weapon or a firearm; or
- a special issue is submitted and answered affirmatively.
In Ex Parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App.1989), cited by the State, the court considered an indictment which alleged that the appellant caused the death of the victim “shooting him with ‘a gun.‘” In the course of its discussion, the court noted that the allegation was sufficient to give the defendant notice that the State would attempt to prove that the named gun was used in a manner that caused death and was, therefore, a deadly weapon. Id. at 528. However, the court warned, had the jury in that case not answered a special issue that the gun was a deadly weapon, “there would have been no affirmative finding of deadly weapon made, even upon the return of a verdict of ‘guilty as charged in the indictment.‘” Id.
In Boyett v. State, 692 S.W.2d 512, 517 (Tex.Crim.App.1985), the court had occasion to consider an indictment that charged a death was caused “by shooting him with a gun.” As relevant here, the court reiterated its previous holding that a “gun” is not a deadly weapon. Id. That being so, the court concluded, “the indictment in this case does not allege a deadly weapon so as to permit a verdict of ‘guilty as alleged in the indictment’ to be considered an affirmative finding.” Id. It is true that the Court of Criminal Appeals has held a “pistol” is a deadly weapon per se, see Giles v. State, 617 S.W.2d 690, 691 (Tex. Crim.App.1981), a “firearm” is a deadly weapon per se, see Stewart v. State, 532 S.W.2d 349, 350 (Tex.Crim.App.1976), and a “handgun” is a deadly weapon per se, see Dade v. State, 622 S.W.2d 580, 581 (Tex.Crim.App.1981).
In summary, all of appellant‘s issues are overruled except his sixteenth issue which is granted. The trial court judgment is modified to delete all reference to the use of a deadly weapon. As modified, the judgment is AFFIRMED.
DAVID B. GAULTNEY, Justice, concurring.
I concur. But respectfully I write separately because I question the rationale of Boyett and the need to strike the deadly weapon finding in this murder case. See Boyett v. State, 692 S.W.2d 512 (Tex.Crim. App.1985).
Any object used to cause death is a deadly weapon. See