Christopher Harris, Appellant v. The State of Texas, Appellee
NO. 03-17-00539-CR
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
March 13, 2019
Gisela D. Triana, Justice
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-DC-15-301782, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
A jury convicted Christopher Harris of the first-degree felony offense of murder and assessed punishment at life imprisonment. See
A jury convicted Harris of murdering Byron James Roberson in an early-morning attack at Roberson‘s house. The medical examiner determined that Roberson sustained twenty-four stab wounds, eleven of those to his neck and head. Harris was one of several people living in Roberson‘s house at the time. The jury heard testimony from others who were in the house when the murder occurred—Roberson‘s adult son Diamond Roberson,3 Delphia “Liz” White, Harris, and Diamond‘s friend Rashard Rogers.
Harris testified that he had been renting the living room of Roberson‘s house for a few months and planned to stay there temporarily. In the hours before Roberson‘s death, Harris stated that he came home from work and relaxed in the living room, smoking marijuana, using cocaine, playing video games, and watching television. Harris stated that two friends came to visit him but both left the house before midnight. Harris also recalled that Rogers came to visit Diamond.
Harris testified that later that evening, another friend of Diamond‘s and a man that Harris did not know came to the front door asking for Diamond. Harris closed the door and called Diamond, who came downstairs and opened the door but saw no one. Harris suggested that Diamond check the back door. Diamond opened the back door, looked left and right, saw no one, closed the door, and headed back toward the stairs.
Harris testified that he went to the kitchen looking for a towel for his bleeding hand, then went outside and saw the assailant attacking Roberson a few houses away. Harris also saw Roberson fall. Harris testified that he chased the assailant down the street, around a corner, and over a fence into a backyard. There the assailant stabbed Harris‘s right hand and leg and then jumped over the fence. Harris said, “as far as [he] can remember,” he pulled the knife out of his own leg and “blacked out.” When he awoke, he walked through the gate to the police, in the direction of their vehicles’ flashing lights. Harris was no longer wearing his shorts, t-shirt, or shoes, but he testified that he did not remember removing his clothing. He did not tell police about the assailant‘s attacks on him, on the others at the house, or on Roberson down the street. Harris acknowledged that he
Diamond and Rogers each testified that they were “positive” Harris stabbed them. They also stated that Harris‘s attacks on them were unprovoked. Diamond testified that Harris attacked him from behind, stabbing him in the neck. Diamond fell to the kitchen floor, and Harris stabbed him again in the neck before running upstairs. Diamond was able to get upstairs and yell to the others to keep their doors closed because Harris was stabbing people. Diamond stated that he collapsed at the top of the stairs and lost consciousness because of his blood loss.
Rogers testified that he heard Diamond yelling not to come out of the room, but he did anyway, and he saw Diamond at the top of the stairs with his neck cut open. Rogers went to Roberson‘s bedroom where he saw a figure with long dreadlocks that appeared to be Harris, who had his arm at an angle holding something. Harris then “ran up on” Rogers saying, “I‘m going to kill all of you all,” and stabbed Rogers with a knife. Rogers sustained stab wounds to his cheek and the back of his head. He ran out the front door with Harris in pursuit. Rogers began knocking on doors for help. He testified that he passed out on the front porch of a house due to his blood loss.
One of Roberson‘s neighbors testified that he woke to the sound of his doorbell ringing repeatedly at about 1:00 a.m. He opened the front door, heard a commotion in the driveway, and saw blood on his front porch. He closed the door and asked his wife to call 911. Looking out a window toward his front yard, he saw a larger man attacking another. The neighbor “saw a man go down,” and the attacker ran away. The neighbor found Roberson‘s body in the front yard. Several hours later, the neighbor saw a man walking toward police. He recognized the man‘s
Police recovered Harris‘s bloodstained t-shirt, shorts, shoes, and a knife from another neighbor‘s backyard. Roberson could not be excluded as a contributor of the DNA detected in the bloodstains on the front of Harris‘s shoe. Harris and Roberson could not be excluded as contributors of the DNA detected in the bloodstains on Harris‘s t-shirt and on the handle and blade of the knife. Police testified that hours after they began their investigation, Harris walked up seeking help for the wounds to his hands. He was dressed only in underwear and socks. One of the officers at the scene recorded her conversation with Harris, including her asking him how he got the cuts on his hands. Harris replied, “I remember [indistinct] this one with Diamond and this one with Byron.”
The jury heard evidence, over Harris‘s objection, that Harris had committed a prior bad act by attacking Jaime Sifuentez with a box cutter. This evidence was introduced to challenge testimony from Harris‘s mother that Harris was not a confrontational person and was “usually very peaceful.” Harris sought to introduce evidence that the Sifuentez incident was “no-billed” by a grand jury, but the district court sustained the State‘s objection and excluded that evidence. At the conclusion of the guilt-innocence phase of trial, the jury found Harris guilty of murder and found that he used a deadly weapon in committing the offense. During punishment, the State called Sifuentez, who testified about the prior bad act over Harris‘s objection that Sifuentez was not on the State‘s witness list. The jury assessed Harris‘s punishment at life imprisonment, and the court rendered judgment on the jury‘s verdict. Harris filed a motion for new trial that was overruled by operation of law. This appeal followed.
Jury selection
In his first issue, Harris contends that the district court erred by overruling his challenge for cause against venireperson number 28 and by declining to grant him an extra peremptory challenge to strike venireperson number 51. To preserve a complaint about the trial court‘s denial of a challenge for cause, a party must show that he: (1) used all of his peremptory strikes; (2) asked for and was refused additional peremptory strikes; and (3) was then forced to take an identified, objectionable juror whom the party would not have otherwise accepted had the trial court granted his challenge for cause (or had the trial court granted him an additional peremptory challenge to strike the juror). Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016). Additionally, a party must show that it made the trial court aware of that complaint “at a time and in a manner so that it can be corrected.” Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004); Redfearn v. State, No. 2-09-270-CR, 2010 Tex. App. LEXIS 7018, at *4 (Tex. App.—Fort Worth Aug. 26, 2010, pet. ref‘d) (mem. op., not designated for publication).
Here however, Harris did not complain until after he had already exercised his peremptory challenges and provided his strike list to the clerk, the clerk had called the members of the jury and the jury was seated, and the court had excused the rest of the venire. See
Accordingly, Harris failed to preserve his complaint about the court‘s rulings as to his challenge for cause and his request for an additional peremptory challenge. See
Evidence concerning extraneous bad act
In his second issue, Harris makes two complaints: first, that the district court erred by overruling his objection to the admission of extraneous bad act evidence; and second, by preventing him from introducing evidence that the bad act had been “no-billed” by a grand jury. Use of evidence concerning a person‘s extraneous bad acts is set forth in
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State‘s case-in-chief such evidence other than that arising in the same transaction.
Before trial, the State provided notice of its intent to present the jury with evidence about an extraneous bad act. See
| Prosecutor: | Good morning. On direct examination you testified that you had the opinion that your son Christopher Harris had the character of peacefulness; is that correct? |
| Zavala: | Yes. |
| Prosecutor: | And you also testified that you were of the opinion that he was non-confrontational? |
| Zavala: | Yes. |
| Prosecutor: | Are you aware of the fact that your son Christopher Harris attacked a Jaime Sifuentez on October 24, 2014, with a box cutter? |
| Zavala: | No. |
| Prosecutor: | If you were to learn that he—your son Christopher Harris attacked Jaime Sifuentez with a box cutter on October 24, 2014, would that change your opinion that your son is a peaceful person? |
| Zavala: | No. |
| Prosecutor: | And if you had that information that he attacked Jaime Sifuentez with a box cutter, would that change your opinion that he is a non-confrontational person? |
| Zavala: | No. |
| Prosecutor: | Pass the witness, Your Honor. |
On redirect, Zavala acknowledged knowing that Harris had been charged in that incident:
| Defense counsel: | Ms. Zavala, the case that the State is referring to, you‘re aware that that case was presented to a grand jury and the grand jury— |
| Prosecutor: | Objection, Your Honor. |
| The Court: | Sustained. |
| . . . . | |
| Defense counsel: | Were you aware that Chris was charged in that incident? |
| Zavala: | Yes. |
| Defense counsel: | And what was your understanding as to the end result of that charge? |
| Prosecutor: | Objection. |
| The Court: | Sustained. |
The court‘s charge at the conclusion of the guilt-innocence phase of trial provided the following instruction to the jury about Zavala‘s testimony:
You are instructed that if there is evidence before you to the effect that Laura Zavala, a witness for the defendant, had heard about other offenses on the part of the defendant, if any, then such evidence may only be considered by you if you consider it at all for the purpose of testing, if it does, the knowledge of Laura Zavala as to the defendant‘s reputation and the weight to be given to their testimony, and you must not consider such evidence for any other purpose.
1. Admission of extraneous bad act evidence
Harris contends that the district court erred by overruling his objection to the admission of extraneous bad act evidence involving Sifuentez. Under Rules 404 and 405 of the Texas Rules of Evidence, if the defendant offers evidence of his good character, the prosecution can introduce its own character evidence to rebut the implications of the defendant‘s character evidence. Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim. App. 2007); Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002); see
However, even when evidence of an extraneous bad act is admissible under Rules 404 and 405, it may be excluded as unfairly prejudicial under Rule 403. During a hearing outside the presence of the jury, Harris objected that allowing the State to question Zavala about the extraneous bad act would violate Rule 403 “because of similar accusations in that case to this one,” which would be “unduly prejudicial to the jury and would influence the jury in the incorrect manner.”
Here, Zavala offered the jury her opinion that Harris was a peaceful and non-confrontational person. The jury had heard similar testimony from White, although she admitted that she did not know him well. The district court could have concluded that the State needed to ask Zavala whether she was aware of the incident involving Sifuentez to test how well she knew him and the credibility of her opinion if she knew about conduct inconsistent with the traits about which she testified. See Wilson, 71 S.W.3d at 350 n.4. The district court‘s limiting instruction in the charge about Zavala‘s testimony minimized any risk that the jury would consider the substance of her questioning for any improper purpose or give it undue weight. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011) (noting that jury is presumed to have understood and followed trial court‘s jury-charge instructions absent evidence to the contrary); Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (noting that impermissible inference of character conformity can be minimized through limiting instruction). The incident Zavala was asked about was not confusing or technical in nature and would not tend to mislead the jury, which weighs in favor of admission of the evidence. See Gigliobianco, 210 S.W.3d at 641 (noting that scientific evidence is of type that
2. Exclusion of evidence of no-bill
Within his second issue, Harris also complains that the district court abused its discretion by excluding evidence that a grand jury had “no-billed” him as to the Sifuentez assault. Harris contends that because the assault resulted in a no-bill, the assault did not qualify for admission as an extraneous bad act under Rule 404(b). He further contends that allowing evidence of that assault—without also admitting evidence of the no-bill—violated Rule 403 because its probative value was greatly outweighed by its potential prejudice and gave the jury the misimpression that Harris had been charged with an offense for stabbing Sifuentez with a boxcutter.
A grand jury has the duty to determine whether evidence exists to formally charge a person with an offense. See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). A no-bill from a grand jury is merely a finding that the specific evidence brought before that particular grand
Furthermore, there was no need to correct a “misimpression” about the assault when as here, the State was not attempting to prove to the jury that Harris committed the extraneous bad act, but only testing the weight of character testimony from Zavala. See Wilson, 71 S.W.3d at 351 & nn.5-6 (citing commentary to Federal Rule of Evidence 405(a)—which is nearly identical to
Even if we were to assume that the court erred by excluding evidence that a grand jury had “no-billed” Harris for the Sifuentez assault, Harris has not demonstrated harm requiring reversal. See
Here, the State‘s questioning of Zavala did not result in the admission of substantive evidence regarding the Sifuentez incident, and after Zavala denied awareness of that incident, the State did not refer to it again during the guilt-innocence phase. The jury had strong proof of Harris‘s guilt in this case, including testimony from Diamond, Rogers, and the neighbor who witnessed Roberson‘s attack, as well as corroborating DNA evidence on Harris‘s bloodstained shoe, t-shirt, and the handle and blade of the knife. Thus, if there were any error in the court‘s evidentiary ruling because of a misimpression from the exclusion of Harris‘s no bill, considering everything in this record, it is unlikely that the jury‘s decision was adversely affected by such error. See Id. We overrule Harris‘s second issue.
Punishment-phase testimony from person not on State‘s witness list
In his third issue, Harris contends that the district court erred by overruling his objection to punishment-phase testimony from Sifuentez, who was not on the State‘s witness list. Harris asserts that Sifuentez gave unfairly prejudicial testimony and that the State‘s nondisclosure of Sifuentez as a witness prevented Harris from adequately preparing for sentencing. We review a trial court‘s decision to allow testimony from a person who is not on the State‘s witness list under
1. Reasonable anticipation that Sifuentez would testify during punishment
Here, Harris does not contend that the State acted in bad faith; rather, he contends that he “had no way of knowing that Mr. Sifuentez would testify at trial.” We disagree. As Harris acknowledges (and conceded at trial), the State: (1) gave notice of its intention to introduce evidence of the prior assault against Sifuentez; (2) provided Harris with an offense report identifying Sifuentez as the complainant in that assault; and (3) provided Harris with Sifuentez‘s criminal history in response to Harris‘s “Motion for Discovery of the Arrest and Conviction Records of State‘s Witnesses.” Under these circumstances, Harris could have reasonably anticipated that the State would call Sifuentez as a witness. See, e.g., Lemasurier v. State, 91 S.W.3d 897, 900-01 (Tex. App.—Fort Worth 2002, pet. ref‘d) (concluding that counsel should have reasonably anticipated witness‘s testimony when witness‘s report had been part of prosecution‘s file and counsel was aware of report through his own review of that file); see also Fox v. State, No. 04-15-00618-CR, 2017 Tex. App. LEXIS 150, at *7 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not designated for publication) (concluding that defendant could have reasonably anticipated that State
2. Sifuentez‘s testimony during punishment was not unfairly prejudicial
Within his third issue, Harris also contends that the district court erred by overruling his objection to Sifuentez‘s testimony during punishment about the extraneous bad act because it was “unduly prejudicial” and a violation of Rule 403.
Here, the charged offense and the extraneous bad act, which occurred less than ten months apart, were similar in several ways—the victims sustained cuts to areas of the neck and head, made with a type of knife, while in close proximity to their attacker, and seemingly without provocation. Thus, the extraneous bad act had probative value because it showed Harris‘s pattern of conduct. Given that the extraneous bad act established a pattern of conduct, and that a defendant‘s character and criminal history are legitimate concerns in sentencing, consideration by a jury of the extraneous bad act would not suggest decision on an improper basis or distract from the main issue. Further, given the high probative value of this evidence and the broad punishment range, the State‘s need for this evidence was high. The district court‘s limiting instruction in the charge minimized any risk that the jury would have considered the extraneous bad act for an improper purpose or given it undue weight.5 See Taylor, 332 S.W.3d at 492 (noting presumption that jury understood and
3. Ability to adequately prepare for sentencing
Also within his third issue, Harris contends that because Sifuentez was allowed to testify, he was unable to adequately prepare for sentencing. Specifically, Harris informed the court during punishment that the defense “would call several witnesses to show that this particular offense was no-billed because there was a self-defense claim that was presented and the grand jury found that there was insufficient evidence to hold Christopher Harris over for trial in that particular case.” However, the record reflects that the defense was able to present such evidence through other witnesses.
During his cross-examination in the punishment phase of trial, Sifuentez agreed that a grand jury “no-billed” Harris for the extraneous bad act involving Sifuentez, and the prosecutor‘s next question confirmed for the jury that the case was “no-billed“:
| Defense counsel: | Did you learn that this case was no-billed by a Travis County district by a Travis County grand jury? |
| Sifuentez: | What does that mean? |
| Defense counsel: | That they didn‘t—the grand jury found that there was not sufficient probable cause to hold Christopher Harris over for trial in that case. |
| Sifuentez: | Oh, yeah, yeah. I heard something about that. That‘s why they let it go. |
| Defense counsel: | Pass the witness. |
| Prosecutor: | Do you know why the grand jury no-billed the case? |
| Sifuentez: | No, ma‘am. |
Also during punishment, Zavala testified on redirect for the defense about her understanding of what happened with the Sifuentez incident. Over the State‘s objection, she stated, “I was told it was self-defense[.]” Further, the State cited article 37.07 in its notice of intention to introduce evidence of the prior assault against Sifuentez and that statute specifically refers to evidence of a defendant‘s prior criminal record during sentencing. See
On this record, Harris has not shown that the district court‘s ruling allowing Sifuentez to testify was outside the zone of reasonable disagreement. See Wood, 18 S.W.3d at 649; Hightower, 629 S.W.2d at 925. Accordingly, we overrule Harris‘s third issue.
We affirm the district court‘s judgment of conviction.
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Goodwin and Triana
Affirmed
Filed: March 13, 2019
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