Corey James Jennings was convicted in March 2001 of capital murder. (1) In response to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 sections 2(b) and 2(e), the trial judge sentenced Jennings to death. (2) Direct appeal to this Court is automatic. (3) Jennings raises twenty points of error. We reject his contentions and affirm his conviction and sentence.
In his first point of error, Jennings claims the evidence is factually insufficient to support the verdict because the State's evidence of the perpetrator's identity was too weak and unreliable to link Jennings to the crime. Jennings argues that the surveillance videotape of the perpetrator was of such poor quality and its images were so blurred and distorted that it cannot bear the weight of supporting the conviction. A review of the pertinent evidence follows.
At approximately 10:30 p.m. on March 6, 2000, Quy Quang Lam was working at a Stop Then Got convenience store in the Spring area of Harris County when a large man wearing a stocking cap, a bandana, and black clothing entered the store. The man forced Lam into a back room at gunpoint and shot him in the neck, resulting in his death. The man took $400 in cash from the cash register. The perpetrator's image was captured on the store's surveillance videotape. The videotape was given to news stations. The following day, they played clips and showed enhanced still photos taken from the tape. The lead investigator with the Harris County Sheriff's Department, Pam Klim, testified to receiving four or five calls in response to the images shown on television and stated that all of the callers named Jennings as the person depicted. After the callers were interviewed, Jennings was arrested. Klim and other officers went to Jennings's apartment following his arrest. Jennings's wife, Bobbie Jennings, was informed of Jennings's arrest, and she signed a consent to search the apartment. Klim stated that when the search commenced, Bobbie was "very cooperative," had the attitude that she had nothing to hide, and was not overly emotional or distraught. During the search, another officer, Detective William Valerio, showed Bobbie still photographs that were taken from the surveillance videotape. Klim testified that when Bobbie saw the photos she started shaking, trembling, and crying, and said, "Oh, my God, why did he do it." Bobbie agreed to go to the police station to view the videotape. Klim stated that before viewing the tape Bobbie appeared a little anxious but generally fine. Once Bobbie began viewing the videotape, she became very upset, and began crying, shaking, and saying "I can't believe he did it."
Detective Valerio testified that when he told Bobbie Jennings that her husband was a suspect in a capital murder her reaction was appropriate-she was "upset, but not overly upset." He testified about showing Bobbie one of the enlarged still photos taken from the videotape. He stated that he did not tell her she had to make an identification or that the man in the photos was Jennings. He said he simply told her "I would like to show you a photograph." He described her reaction:
[H]er knees buckled, she started to fall to the ground. It wasn't as if she was unconscious, but it did appear that sh - her knees involuntarily buckled. She fell to the ground. She was able to stop the fall with her hands. I wasn't close enough to reach out for her. As she started to fall, she started to whimper. And after hitting the ground she said something to the effect of, I can't believe he did it. And then she said, I can't believe he killed somebody like that. . . . After that point she just began to sob and cry hysterically. She put her hands up over her face and cried for several minutes.
Thomas Page, Deputy Sheriff with the Harris County Sheriff's Department, assisted with the search. He described Bobbie's initial demeanor as upset but normal under the circumstances. His testimony about her reaction to being shown the photos was consistent with Valerio's and Klim's.
Donald Bock with the Harris County Sheriff's Department also testified to Bobbie's demeanor. His testimony was consistent with the testimony of the other officers. Bock also testified that several items of men's clothing were seized from the apartment, including several stocking caps, black jogging pants, black boots, and a bandana. On cross-examination, Bock admitted that no blood was found on any of the clothing seized, even though there was a lot of blood at the scene of the crime. Bock admitted that he was not aware of any physical evidence linking Jennings to the crime.
F.B.I. video specialist Ronald Evans testified that he received a copy of the time-lapse surveillance tape and converted it to a "real-time" videotape with clarification and enhanced images. He stated that while the quality of the original surveillance tape was "marginal," "[t]he images were such that if someone were to recognize the individuals on the tape, they would be identifiable." He agreed that he would be comfortable identifying someone on a tape of that quality if he knew the person shown on the tape. Evans noted, however, that the surveillance tape did not have enough clarity to allow him to match photographs of tattoos on Jennings's arms to the markings visible on the arms of the perpetrator in the surveillance video. While the perpetrator's markings appeared "similar" to Jennings's tattoos, they were not clear enough to make a positive identification. On cross-examination, Evans could not say that the person depicted on the videotape was Jennings. Finally, Evans stated that time-lapse videotaping, like that used for the surveillance tape, is done in sequences so that the movements and images reflected are not smooth and consistent; therefore, the gait or walk of an individual depicted is not as smooth as his actual gait or walk.
Jason Richardson and his wife, Holly Richardson, became friends with Jennings and moved in with him and Bobbie for a short time. Jason testified that Jennings had a unique body size and build and stated that he would recognize Jennings even if Jennings had his head covered. He also stated that he had never known anyone with Jennings's unique body size and build. Jason further testified that Jennings had a unique way of walking or carrying himself. Jason and Holly lived in the area where the robbery occurred and Jason was a frequent customer of the Stop Then Got store. When they first saw the tape of the robbery on the news, Jason and Holly were in Livingston, Texas, watching on a television set with such poor reception that they thought the perpetrator was Caucasian. When Jason viewed the tape a second time, he heard that the robber was a black man. At this point Jason said he "knew it was Corey." Jason stated that he was "positive," to a number ten on a scale of one to ten, that the man on the surveillance tape, the F.B.I. tape, and in the still photos was Jennings. Jason testified that he had seen Jennings with a handgun and that Jennings had told him before the offense that he planned on using a pistol to rob the Pizza Hut where Bobbie used to work. Holly's testimony was consistent with Jason's. After viewing the original store surveillance tape, the enhanced F.B.I. tape, and still photographs taken from each, and on a scale of one to ten, Holly felt that Jennings was the man on the tape with certainty to a number eight.
Michael Davis and Jennings were friends for five or six months before the offense. After viewing the original surveillance tape, the F.B.I. enhanced tape, and the still photos taken from each, Davis testified he believed the robber on the tape was Jennings. On a scale of one to ten, Davis placed his level of certainty at eight or higher. Davis stated that he identified the person on the videotape as Jennings based on the person's stature, size, the way he carried himself, and his gestures. On cross-examination, Jennings's attorney pointed out that Jennings's name was mentioned to Davis by the investigator before Davis saw the video. The defense attorney also pointed out that Davis never previously mentioned gestures or movements but only size and stature.
Mitchell Gardiner testified that Jennings had been to his house many times. Gardiner testified that after viewing the videotapes and still photos, on a scale of one to ten, he was certain of the robber's identity as Jennings to a number seven. On cross-examination, Gardiner admitted that when he had seen the videotape on the news and when first shown the video by police, he had not identified Jennings as the perpetrator. He also admitted that he did not initiate Jennings's name in connection with the videos and the offense; it was mentioned to him first by law enforcement.
Michael Lara testified that he lived in the neighborhood where the offense occurred, frequented the Stop Then Got store on a daily basis, and knew Jennings as an acquaintance. Lara stated that on the night of the offense, he and two of his friends, Bobby Hubert and Brad Kny, were walking around the neighborhood after Kny got off work at the restaurant next door to the store. They walked around to the back of the Klein Bank across the street from the store and smoked some marijuana. Then they decided to go get something to drink. As they walked toward the store, they saw a man come out whom Lara described as big and wearing a black shirt and pants. Lara estimated that they were within twenty-five or thirty feet of the man. Lara testified that he did not recognize the man as Jennings. He testified that he was "really high" and "wasn't even paying attention." The three entered the store and realized something was wrong when no one was there to wait on them, the cash register was open, and there was money on the floor. One of them called the police to report a robbery. Before the police arrived, they discovered Lam's body in the back. The three agreed that they would not tell the police that they had seen someone leaving the store because they didn't want to get involved. The next day when police confronted Lara with time-lapse photography from the ATM at the Klein Bank which proved that he and his friends were approaching the store at exactly the same time the perpetrator left, Lara admitted that they had seen someone leave. In the statement he gave to police on that day, Lara stated, "When I saw the video and thought about it, I believe the big black guy that I have known since August 1999 whose name is Corey Jennings is the person I saw coming out of the store and the person in the video." At trial, however, Lara testified that he had not understood at the time he made the statement that it was under oath. He also testified that the statement was not in his own words. He claims he said "maybe" or "there might be a chance" or "it's a possibility" that the man he saw was Jennings. He testified he never told police "word for word" that the man he saw or the man on the video or in the pictures was Jennings. On cross-examination, Lara agreed that he was seventeen when he made the statement, the police picked him up at his house, took him alone to the station, threatened him with possible perjury charges, suggested Jennings's name as a suspect, and gave him a polygraph exam before he was told he could leave. On redirect Lara agreed that he was not coerced or tricked into giving his statement. He also agreed that it would not make sense to be coerced into giving a false statement and then asked to take a polygraph exam to verify an inaccurate statement. Lara agreed that he was treated fairly by the Sheriff's Department and was not mistreated.
Bradley Kny testified that he went to the Stop Then Got store on a daily basis. He knew Jennings by name. Kny's testimony was generally consistent with Lara's testimony except that Kny also testified that he saw the person who left the store get into a dark red vehicle with tinted windows. The only detail he could say he noticed was that the person was black. On the evening of the offense, Kny told police he did not see anyone leave the store. The next day, however, Kny admitted to police that he saw someone leave the store but stated that he did not know who it was. Kny denied that he told his coworker, Daniel Wynn, the day after the offense, that he recognized the person as Jennings and that he saw Jennings get into his black Honda.
Daniel Wynn worked at the restaurant next door to the Stop Then Got at the time of the offense. He had been to Jennings's apartment and had socialized with him on many occasions. About four or five months before the offense Wynn saw a gun at Jennings's apartment which he described as a chrome revolver. A month before the offense, Wynn entered the Stop Then Got and heard Lam and Jennings talking in loud voices. This was unusual because Lam was normally very polite to customers. Jennings grabbed his purchases and left the store. Wynn testified that the day after the offense Kny told him he had seen Jennings coming out of the store the night before and that he was positive it was him. Wynn also testified that Kny told him he noticed a black car with tinted windows that looked like Jennings's car. Wynn did not know the extent of what Kny had told the police, but Kny told him he did not want anything to do with the whole ordeal. Having viewed the surveillance tape, the F.B.I. enhanced video, and the still photographs, Wynn stated he believed, on a scale of one to ten, to a certainty of eight or nine that the perpetrator was Jennings. On cross-examination it was noted that Wynn did not mention his conversation with Kny in the statement he gave to police the day after the offense.
The defense called two witnesses. Matthew Galloway testified for the defense that he overheard a man thanking Jason and Holly Richardson for their help and telling them that as soon as there was an arrest, they would get the reward money.
Bobbie Jennings testified for the defense that while the officers were searching the apartment, Detective Valerio attempted to show her the photos and told her the person depicted in the photos was her husband. Although she "caught a glimpse" of the pictures, she said she would not look at them, turned her head and refused to take them. She denied collapsing, sitting down, crying out, expressing remorse or stating anything concerning the photos. Bobbie stated that she was crying because of the stress of the situation and the news that her husband had been arrested for the murder but not because of the photos. Bobbie testified that at the Sheriff's Department, Klim "narrated" the video as it played by using Jennings's name to describe the perpetrator depicted on the tape. When asked if she recognized Jennings in the video, Bobbie said she imagined the perpetrator to be him because Klim had put that image in her mind. Bobbie agreed she gave a statement averring that Jennings was depicted in the video but said she no longer believes her husband was the perpetrator. She testified that when she made the statement she was very upset and Klim's narration of the video and her statements about Jennings's guilt led Bobbie to believe that Jennings must be guilty. Since signing the statement and watching the video again, however, she no longer believes the man on the video is Jennings. She stated the man on the video has broader shoulders and a smaller lower body than Jennings, and that it was not consistent with her husband's character to commit this crime. She testified she is convinced he was at home with their three-year-old son. She spoke with Jennings on the home phone at 10:09 the night of the offense.
On cross-examination the prosecutor went through Bobbie's sworn statement. When questioned about the portion of her statement, "An officer showed me a copy of the pictures of the robbery and I recognized the man as Corey," Bobbie said she only glanced at the photos, and she should have read her statement more thoroughly. She stated that she never identified her husband from the photos and that that sentence from her statement was false, although she agreed she had initialed the beginning of the sentence and the end of the paragraph and signed the bottom of the page and had sworn to the entire statement under oath. She testified she believed the officers took advantage of her emotionally-vulnerable condition and convinced her it was her husband in the video. Bobbie testified that their apartment was about a minute or two away from the Stop Then Got store.
In conducting a factual sufficiency review of the evidence, the reviewing court looks at all of the evidence on both sides and in a neutral light, without the prism of the "light most favorable to the verdict." (4) Appropriate deference is given to the fact finder to prevent the reviewing court from intruding upon the fact finder's role as the sole judge of the weight and credibility to be given to witness testimony. (5) Evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. (6) Jennings urges factual insufficiency under the first of these formulations, that the evidence is simply so weak that the verdict is clearly wrong and unjust. Jennings argues that the witnesses' identification testimony, like the identification testimony of the witness in Johnson v. State, (7) was too weak and unreliable to support the verdict.
Johnson is not comparable to this case. There was one witness in Johnson, the surviving victim. The verdict in this case rests on a combination of the surveillance tape and the F.B.I. enhancement and photos, which jurors viewed at trial, and numerous trial witnesses who knew Jennings previously and who identified Jennings based on the tapes and photos. Five of Jennings's friends testified that they were certain, to varying degrees, that he was the person depicted in the videotapes and photos. These witnesses described their certainty on a scale of one to ten. Among the five witnesses, they articulated a ten, an eight, an "eight or higher," an "eight or nine" and a seven. They relied on Jennings's unique size and stature and to some extent his movements and gestures in reaching their conclusions. Jennings was described as notable in size and build, being about 6'3" and a muscular 260 pounds. Four police officers testified that Bobbie Jennings collapsed and became hysterical when shown one or more of the still photos of the perpetrator from the scene. Bobbie, on the other hand, testified that she was upset due to the circumstances of her husband's arrest, not the photos. Although she testified she no longer believed her husband was the man on the video, in a sworn statement made after viewing the surveillance video, the F.B.I. video, and the still photos, Bobbie stated that she believed the man on the tape was Jennings. One of the three young men who saw the perpetrator leave the store, Michael Lara, gave a sworn statement in which he stated that he believed the man on the videotape was Jennings. At trial, however, he testified that he meant only that there was a "possibility" that the man was Jennings. Bradley Kny testified that he did not recognize the man they saw leaving the store and could not identify the person depicted on the video. However, Daniel Wynn, who worked with Kny at the restaurant next door to the Stop Then Got, testified that the day after the offense Kny told him he had seen Jennings coming out of the store and that he was "positive" it was him. Wynn also said Kny told him he had noticed Jennings's black car with the tinted windows. Finally, police seized clothing at Jennings's apartment similar to the clothing worn by the perpetrator, including black clothing, stocking hats, and a bandana.
While some of the above evidence is conflicting, such as Wynn's and Kny's testimony, Bobbie's statement and her trial testimony, and Lara's statement and his trial testimony, we defer to the jury on matters of witness credibility. And although the videotape was not the best quality and clarity, the F.B.I. expert testified it was of sufficient clarity to enable a person to identify someone they already knew. Viewing all the evidence on both sides and in a neutral light, we hold the evidence of Jennings's identity is not so weak as to be manifestly unjust. Point of error one is overruled.
In his second point of error, Jennings claims the trial court erred in admitting the identification testimony that he was the person depicted in the videotape, whether as "expert" or "lay opinion" testimony, because in each case the purported identification was so unreliable as to be irrelevant and inadmissible. Jennings also argues the identifications were impermissibly tainted by suggestive procedures that created an irreparable risk of mistaken identity.
Before trial Jennings filed two motions seeking suppression of all identification testimony on the grounds that (1) the procedures were impermissibly suggestive and gave rise to a substantial likelihood of irreparable harm; and (2) the testimony was inadmissible under Rules of Evidence 701 and 702. The trial court held a hearing on the motions. Mitchell Gardiner, Jason Richardson, Holly Richardson, Michael Davis, Michael Lara, Bradley Kny, Detective Klim and Deputy Bock all testified generally consistent with their subsequent trial testimony outlined in point of error one above. At the close of the hearing testimony, the trial court denied Jennings's motions and ruled that the proffered testimony "appeared to be 701 testimony by lay witnesses" but if not, the court also found the testimony met the requirements set forth in Daubert and Kelly. (8) The court also noted the testimony was relevant and its prejudicial value was far outweighed by its probative value. Five days later, the identification hearing resumed upon the arrival of State's witness Daniel Wynn. Wynn also testified in a manner generally consistent with his later trial testimony. The court ruled Wynn's testimony reliable and its scope permissible.
Jennings argues that the opinions of the identification witnesses were not "rationally based on their perceptions" as required by Rule 701 because the witnesses perceived exactly what the jury was capable of perceiving for itself on the videotapes and in court. Jennings maintains that the factors cited by the witnesses as allowing them to identify Jennings on the tapes, such as his size, stature and gait, were factors that the jurors themselves could perceive.
Rule 701, Opinion Testimony of Lay Witness, provides:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
The identification witnesses who are the subject of Jennings's complaint testified to knowing Jennings for some time before the offense. The witnesses had seen Jennings numerous times over the months--walking, standing, sitting, wearing different types of clothing. They had seen him around the neighborhood, in their apartments, up-close and at a distance. As such, their identification testimony was based largely on their personal perceptions of Jennings. These perceptions were founded in their observations of and familiarity with such factors as Jennings's size, build, stature and the way he moved, and therefore were rationally-based. Because the witnesses' personal exposure to Jennings brought a depth to their perceptions that the jurors did not have and could not attain in the limited time and space of the trial setting, their testimony was helpful to a determination of a fact in issue--Jennings's identity. The trial court did not abuse its discretion in ruling their testimony admissible under Rule 701. Given its admissibility under Rule 701, we need not address the admissibility of the testimony under Rule 702.
Jennings also argues that due process principles demanded exclusion of the identification testimony on the ground that it was corrupted by suggestive pretrial procedures. Jennings claims the procedures were suggestive because in each instance law enforcement personnel sought out people who knew Jennings, showed them only the surveillance or FBI videos and photos, and asked them if they recognized Jennings or could identify Jennings, without mentioning any other suspects' names. He says a fair photo-spread or lineup would have duplicated the surveillance tape, using the same type of film and equipment and shooting different suspects wearing clothing like that worn by the perpetrator in the actual video.
The United States Supreme Court has held that pretrial identification procedures may be so suggestive and conducive to mistaken identification that admission of that identification at trial would deny the accused due process of law. (9) A two-step test applies to determine the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. (10) In conducting such analysis, the court should consider the "totality of the circumstances" surrounding the reliability of the identification. (11) The appellant bears the burden of establishing by clear and convincing evidence that the in-court identification is unreliable, as so tainted by the allegedly suggestive procedures. (12)
Jennings's attempt to classify this case with those where eyewitnesses are asked to identify potential suspects from a photo line-up is misguided. Jennings was identified by at least five callers on the basis of the surveillance tape shown on the news, and police wanted to determine if others who knew him agreed with those identifications. Moreover, surveillance tape identifications are different from police file photo line-up identifications. In cases where eyewitnesses viewed a crime and then viewed a surveillance tape afterwards, courts uniformly note that eyewitnesses' identifications are more reliable, not less, based in part on the fact that the surveillance tape shows the actual perpetrator:
The fact that the bank surveillance photographs of the robber were shown to the tellers just prior to their photo lineup selection does not jeopardize their identifications because . . .
The recollection of an eyewitness is refreshed by the use of photographs of the crime itself. Little possibility of misidentification arises from the use of photographs depicting "the likeness not of some possible suspect in the police files, but of the [persons] who actually committed the robbery."
. . . Any resemblance between the persons in the photographs and the defendants was not impermissibly suggestive, but, in fact, was highly probative. (13)
While in the case before us, the witnesses were not crime scene eyewitnesses so the videos were not used to "refresh" their memories, some of the reasoning nonetheless applies. The surveillance videotape, the F.B.I. videotape, and the still photos are not themselves impermissibly suggestive because they merely depict the actual perpetrator during the commission of the crime. Police were not required to attempt to make the video somehow less suggestive by re-creating it using other potential suspects. A surveillance videotape is not a line-up and need not be treated as such by attempting to re-create the crime with different suspects as the "actor."
Jennings argues that the way these items were presented to the witnesses, in connection with Jennings's name, made them impermissibly suggestive. We will look more closely at the testimony of each identification witness at the hearing on this issue, keeping in mind that we are concerned with whether the allegedly suggestive out-of-court procedures gave rise to a "substantial likelihood of irreparable misidentification."
Two of the identification witnesses, Jason and Holly Richardson, had formed the opinion that Jennings was the perpetrator before talking with police, and were among those who called police identifying Jennings as a possible suspect based on the television clips.
Bradley Kny and Michael Lara were present at the store immediately after the perpetrator left, and both eventually admitted to seeing the perpetrator leave the store. When cross-examined about what police said to him when they first asked him if he could identify the person in the photos, Lara agreed that he was asked whether the person was Jennings, and that no other suspects' names were mentioned. Kny was never able to identify the person, and there was no testimony at the hearing about what the police said to him when asking him if he could identify the person shown on the videos and in the photos.
There was no testimony at the hearing establishing how Gardiner came to be contacted by police. Gardiner testified that police brought the videos and photos to his house. He agreed on cross-examination that, during the viewing, the officers mentioned only Jennings's name in connection with their investigation. He testified that he was asked by police whether he thought the videos and pictures depicted Jennings.
Davis's testimony is less clear. There was no testimony at the hearing establishing how Davis came to be contacted by police. On direct examination he agreed he was not told who to identify or that he had to identify someone. When defense counsel inquired whether police suggested Jennings's name before the viewing of the videotape or had asked Davis whether the person depicted was Jennings, Davis testified that he was never asked by police whether the person depicted was Jennings.
Daniel Wynn's hearing testimony did not explore the issue of whether Jennings's name was suggested by police before the viewing. There is no testimony as to when the viewing took place or how Wynn came to be contacted by police. On direct examination, Wynn agreed that he was shown the videos and photos and asked whether he could identify the person depicted in them. When asked whether he identified the person because someone told him to or suggested to him that he should, or whether it was because he actually knew and recognized the person, he testified that he actually knew and recognized the person. Wynn was not cross-examined on the issue.
In summary, it was established at the hearing that the only persons to whom Jennings's name was suggested by police before the viewing of the tape were Lara and Gardiner. Holly and Jason had previously concluded that the perpetrator was Jennings. The issue was not clearly addressed in the hearing testimony of Wynn and Davis. In light of the media attention drawn to the situation in the neighborhood following the incident and Jennings's arrest, the witnesses might have all known that Jennings had been arrested or was at least a suspect, but that fact was not even probed during their hearing testimony. Of the two who stated Jennings's name was mentioned first by police, Lara's in-court identification was marginal at best, as he attempted to retreat from his sworn statement. Gardiner's in-court identification was more definite at a seven on a scale of one to ten. Given the fact that only two of the six identification witnesses stated Jennings's name was mentioned to them by police and they did not testify as to whether or not they knew Jennings was a suspect or had been arrested, and in view of the fact that the testimony of the other witnesses was not developed on this issue, Jennings has not met his burden of showing by clear and convincing evidence that the in-court identifications were tainted by suggestive procedures in the totality of these circumstances. Point of error two is overruled.
In his third point of error, Jennings claims the trial court erred in admitting evidence of an extraneous offense or misconduct that was not relevant to the issue of his guilt, in violation of due process of law and in violation of Rule of Evidence 401. Even if relevant, Jennings further argues, the evidence was inadmissible under Rule of Evidence 403.
At the guilt or innocence phase of trial, Jason Richardson testified that Jennings told him that he planned to rob the Pizza Hut, using a pistol, where Jennings's wife, Bobbie, used to work. Jason said Jennings told him that his cousin was going to hit manager Bill Deskin over the head with a crutch and if Deskin got up, Jennings would shoot him in the leg. Holly Richardson testified that, although Jason told her about the Pizza Hut plan, she didn't believe it; she "thought it was all talk."
We initially note that Jennings mischaracterizes the Pizza Hut plan as an extraneous offense. A defendant's thoughts and expressions about committing a crime, without conduct, do not amount to evidence of other crimes, wrongs or acts. (14) That aside, Jennings waived objection as to the substance of most of the testimony. The following testimony came in before Jennings objected:
Q. Had you ever heard [Jennings] talking about robbing a business in that area?
A. Yes, sir.
Q. Did [Jennings] indicate what sort of weapon he was planning on using and doing that robbery?
A. Yes, sir.
Q. And what sort of weapon was that?
A. A pistol.
Q. And was it a business where [Jennings] knew the person he was going to rob?
A. Yes, sir.
Q. And did [Jennings] tell you what he planned on doing -
[Defense counsel asked to approach the bench and stated that the State was "asking about an extraneous offense"]
The details added later included the name of the business (Pizza Hut), the fact that Bobbie Jennings had previously worked there, and that Jennings's cousin was going to hit the manager with a crutch and Jennings was going to shoot him in the leg if necessary. Admission of the testimony after Jennings's objection was harmless in light of the testimony that had already come in without objection. The name of the business was not particularly probative, and it had already been revealed that Jennings knew the person he was going to rob. That Jennings would use the pistol if necessary could be inferred from his plans to take the gun with him. Point of error three is overruled.
In his fourth point of error, Jennings claims "the trial court erred in refusing to allow the defense to waive a part of its limiting instruction on the extraneous offense evidence at guilt, compromising [his] right to the limiting instruction, and denying him due process of law and effective assistance of counsel." Jennings complains of the impact of the instruction on the jury's consideration of the evidence of Jennings's plans to rob the Pizza Hut, discussed in the previous point of error. But because the evidence of Jennings's plans did not involve any evidence of other crimes, wrongs or acts, (15) it was not affected by the court's instruction. Point of error four is overruled.
In his fifth point of error, Jennings claims that the trial court erred in admitting Bobbie's out-of-court statements identifying him from photos and the video the police showed her under circumstances showing their intent to produce an "excited utterance" and to circumvent her spousal privilege. He claims the statements were compelled and untrustworthy so that their admission violated not only evidentiary hearsay rules and privilege rules, but also his due process fairness guarantees.
The circumstances surrounding Bobbie's out-of-court statements are described in point of error one. Nothing in the evidence supports Jennings's allegations that law enforcement orchestrated their interaction with Bobbie in an effort to incite an excited utterance or circumvent the spousal privilege. The trial court did not abuse its discretion in allowing the statements as "excited utterances" under Rule of Evidence 803(2). (16) Point of error five is overruled.
In his sixth point of error, Jennings claims his guilty verdict was obtained in violation of due process because the Harris County form response to the jury's request for testimony during deliberations, used by the trial court in this case, was unnecessarily restrictive and unfairly deprived Jennings of the jury's consideration of crucial defensive evidence. Specifically, Jennings argues that because jurors could not identify the defense witness by name and state what testimony they wanted "on the particular part of his testimony in dispute," as required by the trial court's form, the jurors did not press their request for that testimony. But Jennings waived this argument because he did not object to the form used by the trial court. Point of error six is overruled.
In his seventh point of error, Jennings claims the trial court abused its discretion under Rule of Evidence 403 by allowing the State to call Bradley Kny for the sole purpose of impeaching him with otherwise inadmissible hearsay evidence. He also complains that the trial court erred in denying the defense its request for an instruction that the impeachment testimony could not be used as substantive evidence of Jennings's guilt. Jennings argues that the State's sole reason for calling Kny, knowing he would give unfavorable testimony, was to set him up to be impeached by Wynn's testimony, which would not otherwise have been admissible.
Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." In Hughes v. State, (17) we discussed the role of Rule 403 when a party calls a witness for the primary purpose of soliciting impeachment evidence. We held that in this scenario, any probative value the impeachment evidence may have is substantially outweighed by its prejudicial effect. (18)
This case is distinguishable from Hughes because the State had other reasons for calling Kny besides eliciting the impeachment evidence. Lara and Kny were the only eyewitnesses to the flight of the perpetrator who were available to testify. The jury would want to know what Kny's version of the events would be, what he saw, if anything, and whether his testimony would be consistent with Lara's. And Kny testified to an important fact that Lara did not. Kny alone gave a description of the man's car. Kny testified the car was maroon or dark red-colored (Jennings's car was black), and it had tinted windows (like Jennings's car). So the State had reasons for calling Kny other than eliciting impeachment evidence. The trial court did not abuse its discretion in determining that Kny was not called primarily for impeachment.
Jennings also complains about the trial court's failure to instruct the jury to consider impeachment evidence only on the issue of credibility. But the request was not made until the conclusion of the guilt or innocence phase. If a limiting instruction is not requested at the first opportunity, the evidence is admitted for all purposes. (19) Because an instruction was not requested at the first opportunity, Kny's testimony was admitted for all purposes. (20) Point of error seven is overruled.
In his eighth point of error, Jennings argues that, considering the law would require him to serve forty calendar years on a life sentence before becoming eligible for parole, the State failed to prove beyond a reasonable doubt the probability that he would constitute a continuing threat to prison society for forty years and that after that time that he would be a threat to free society if paroled. We have rejected arguments that the minimum parole terms have any impact on the State's burden of proving future dangerousness. (21) We also note that the State had the burden of proving beyond a reasonable doubt that there is a probability that Jennings "if allowed to live, would commit criminal acts of violence in the future, so as to constitute a continuing threat to people and property, whether in or out of prison." (22) The State is not required to prove the defendant's dangerousness over any given number of years, but "in the future" as that phrase would be construed by the fact finder in ordinary usage. Point of error eight is overruled.
In his ninth point of error, Jennings claims the future dangerousness special issue was unconstitutional because that issue was not susceptible to proof beyond a reasonable doubt and the jury could not fairly consider it. In other words, Jennings argues that in the capital punishment context, jurors apply a lower standard than proof beyond a reasonable doubt because, he asserts, they will tolerate virtually no risk in assessing future danger.
The jury was properly instructed on the burden of proof beyond a reasonable doubt. We presume the jury follows the trial court's instructions. (23) Jennings points to no evidence to rebut this presumption. Point of error nine is overruled.
In his tenth point of error, Jennings claims the failure to provide a definition of "society" in the special issue on future dangerousness resulted in a sentence of death in violation of Jennings's rights under the Eighth and Fourteenth Amendments. We have held that "society" should be understood in its ordinary connotation, and we decline to depart from that precedent. (24) Point of error ten is overruled.
In his eleventh point of error, Jennings claims the 12-10 rule of Article 37.071 which requires ten votes for the jury to return a negative answer to the first or second special issue and at least ten votes for the jury to return an affirmative answer to the third special issue violates the Eighth Amendment to the United States Constitution. In his twelfth point of error, Jennings claims the trial court erred in denying his request to inform the jury that the failure to answer a special issue would result in a life sentence, in violation of Jennings's rights under the Eighth Amendment to the United States Constitution. We have repeatedly rejected identical claims. (25) Points of error eleven and twelve are overruled.
In his thirteenth point of error, Jennings claims that the language in the charge informing jurors that in order for the court to assess the "proper punishment" it was necessary for them to answer the special issues, was so likely to mislead the jury that it would violate the Eighth Amendment. Jennings's argument has no basis in case law but is based on speculation and conjecture. We see nothing in the phrase "proper punishment" in the context used in the court's charge that would lead the jury to make the implication suggested by Jennings. Point of error thirteen is overruled.
In his fourteenth point of error, Jennings claims the trial court erred in denying his request to clarify the scope of the statutory mitigation instruction so that jurors would understand they were not limited to considering only those facts that they found reduced Jennings's moral blameworthiness. Jennings claims the error placed outside the jury's effective reach Jennings's evidence of childhood abuse, racial discrimination, and school experiences, which he offered as a basis for finding a life sentence more appropriate than the death penalty, rather than an excuse for committing the offense. We have rejected similar arguments, and Jennings has given us no reason to overrule such precedent. (26) Point of error fourteen is overruled.
In point of error fifteen, Jennings complains of the prosecutor's jury argument as improperly characterizing the mitigation issue and denying Jennings fair consideration of evidence on that issue, in violation of the Eighth and Fourteenth Amendments. Both prosecutors argued at length concerning the mitigation evidence. Jennings objected only once on the ground that the prosecutor's definition of mitigation was too restrictive, yet he complains of a number of similar arguments. Jennings waived any error regarding the arguments to which he failed to object. (27) As to the other argument, any error is rendered harmless due to the fact that the prosecutors made similar arguments numerous times without objection. (28) Point of error fifteen is overruled.
In his sixteenth point of error Jennings claims that under Mosley v. State (29) and Apprendi v. New Jersey, (30) the mitigation special issue at punishment is infirm under the Eighth Amendment because it omits a burden of proof. In point of error seventeen, he claims that, after Mosley, the mitigation special issue is constitutionally infirm under the Eighth Amendment because it makes impossible any meaningful appellate review of the jury's determination. And in point of error eighteen, Jennings claims that Article 44.251, requiring appellate review of sufficiency of all capital punishment special issues, when interpreted in conjunction with Article 37.071 § 2(e), placing no burden of proof in the mitigation special issue, is facially unconstitutional, violating the Eighth Amendment to the United States Constitution. With the exception of the Apprendi argument, we have previously rejected all of these claims. (31)
Jennings argues that the absence of a burden of proof is a problem under Apprendi. But Jennings reads Apprendi too broadly. In Apprendi, the Supreme Court held that sentence enhancements based on judicial fact findings violated the Due Process Clause. The Court held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (32) Jennings argues that Apprendi requires the State to bear the burden to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative.
Apprendi is inapplicable to Article 37.071. Apprendi applies to facts that increase the penalty beyond the "prescribed statutory maximum." Under Article 37.071, the "prescribed statutory maximum" is fixed at death. There are no statutory enhancements. A positive jury finding on the mitigation issue does not have the potential of increasing the penalty beyond the prescribed statutory maximum. It has the potential for reducing the prescribed statutory maximum to a sentence of life imprisonment. Finally, although Jennings claims the State should bear the burden of proving the mitigation issue under Apprendi, Apprendi does not address burden of proof. Instead, Apprendi addresses the question of who the factfinder should be for the sentence enhancement. Points of error sixteen, seventeen, and eighteen are overruled.
In point of error nineteen, Jennings claims the trial court erred in denying his request for an instruction allowing the jurors to consider residual doubt as a mitigating circumstance when answering the mitigation special issue. He claims that without such an instruction he was deprived of his right to place all mitigating evidence, including the "circumstances of the offense" within the jury's effective reach in deciding whether a life sentence is more appropriate than the death penalty. Jennings acknowledges that there is no established precedent in this Court in support of his argument, but urges this Court to follow other courts, such as the Fifth Circuit Court of Appeals, which have recognized residual doubt as a mitigating factor.
But even the Fifth Circuit has stated that, although it recognizes residual doubt as an appropriate consideration for a mitigating factor at punishment, a defendant is not constitutionally entitled to a jury instruction to that effect. (33) Indeed, when the United States Supreme Court addressed the question of whether a Texas criminal defendant was entitled to an instruction on residual doubt under a former version of the special issues, a plurality of the Supreme Court noted that it had never endorsed consideration of residual doubt at punishment. (34) The four-judge plurality said: (35)
At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the "residual doubt" question in Lockhart v. McCree supports his position that he has such an entitlement. . . . Lockhart did not endorse capital sentencing schemes which permit such use of "residual doubts," let alone suggest that capital defendants have a right to demand jury consideration of "residual doubts" in the sentencing phase. . . .
* * *
Our edict that, in a capital case, "'the sentencer ...[may] not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record or any of the circumstances of the offense,'" in no way mandates reconsideration by capital juries, in the sentencing phase, of their "residual doubts" over a defendant's guilt. Such lingering doubts are not over any aspect of petitioner's "character," "record," or a "circumstance of the offense." This Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.
Two judges in concurrence stated that the petitioner's residual doubt claim should fail because the Eighth Amendment does not require it. (36) Thus, a majority of the Court rejected the residual doubt claim. We decline Jennings's invitation to hold he was entitled to an instruction on residual doubt. Point of error nineteen is overruled.
In his twentieth point of error, Jennings claims the trial court erred in denying admission of juror Rebecca Smith's affidavit in support of Jennings's motion for new trial. Jennings relied on Smith's affidavit in support of points of error one, six, fourteen and fifteen and argues that if it is not considered by this Court, he will be denied effective assistance of counsel on appeal and a meaningful appeal.
But the record reflects that the trial judge admitted the affidavit for the limited purpose of Jennings's new trial motion. So Jennings's claim that the trial court erred in denying the admission of the affidavit in support of his motion is without merit.
Because the affidavit was admitted only for the limited purpose of Jennings's motion for new trial, we may not consider it as evidence in support of unrelated points of error in this appeal. (37) We reject Jennings's argument that, without the affidavit, he will be denied effective assistance of counsel on appeal and a meaningful appeal. The quality of Jennings's appeal and assistance of counsel on appeal are adequately protected in numerous ways under the federal and state constitutions and do not depend upon a juror affidavit that was admitted for a limited purpose at a motion for new trial hearing. The affidavit is not before us in this appeal, and we will not consider it. Point of error twenty is overruled.
The judgment of the trial court is affirmed.
DATE DELIVERED: June 25, 2003
DO NOT PUBLISH
1. Tex. Penal Code Ann. §19.03(a).
2. Tex. Code Crim. Proc. art. 37.071 §2(g).
3. Tex. Code Crim. Proc. art. 37.071 §2(h).
4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Tex. R. Evid. 803(2).
17. 4 S.W.3d 1 (Tex. Crim. App. 1999).
18. 19. 20. 21. 22. 23. 24. 25. 26. 27. Tex. R. App. P. 33.1.
28. 29. 983 S.W.2d 249 (1998), 30. 530 U.S. 466 (2000).
31. 32. 33. 34. 35. 36. 37.
1. Tex. Penal Code Ann. §19.03(a).
2. Tex. Code Crim. Proc. art. 37.071 §2(g).
3. Tex. Code Crim. Proc. art. 37.071 §2(h).
4.Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
6.Id. at 11.
8.Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).
9.Stovall v. Denno, 388 U.S. 293 (1967); see also Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001).
10.Simmons v. United States, 390 U.S. 377 (1968).
11.Id.; Conner, 67 S.W.3d at 200.
12.Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995), cert denied, 516 U.S. 1176 (1996); Madden v. State, 799 S.W.2d 683, 694 (Tex. Crim. App. 1990), cert. denied, 498 U.S. 1301 (1991).
13.United States v. Monks, 774 F.2d 945, 957 (9th Cir. 1985) (citations omitted); see also United States v. Ervin, 436 F.2d 1331, 1333 (5th Cir. 1971) (noting that pretrial showing to eyewitnesses of actual portion of photo of crime was not impermissibly suggestive-rather, "[t]he photograph did not suggest possibilities, it showed facts"); United States v. Evans, 484 F.2d 1178, 1186 (2nd Cir. 1973) (noting that surveillance film viewed by eyewitnesses "contained the likeness not of some possible suspect in the police files, but of the man who actually committed the robbery [and] [a]s a consequence, to refresh the memory of each eyewitness from that source ran a significantly smaller risk of misidentification than to refresh it from a source unrelated to the actual events").
14.Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.), cert. denied, 510 U.S. 966 (1993) (rejecting defendant's claim that admission of statement in which he expressed plans to commit kidnapping and murder violated Rule 404(b) because such plans were mere thoughts, not extraneous offenses).
16. Tex. R. Evid. 803(2).
17. 4 S.W.3d 1 (Tex. Crim. App. 1999).
18.Id. at 5.
19.Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001).
21.See Campbell v. State, 910 S.W.2d 475, 480 (Tex. Crim. App. 1995), cert denied, 517 U.S. 1140 (1996).
22.Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001) (citing Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App.1999), cert. denied, 529 U.S. 1070 (2000)).
23.Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App 1998).
24.Comacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993)(quoting Rougeau v. State, 738 S.W.2d 651, 660 (1987)), cert. denied, 510 U.S. 1215 (1994).
25.Johnson v. State, 68 S.W.3d 644, 656 (Tex. Crim. App. 2002);Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); McFarland v. State, 928 S.W.2d 482, 519 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997).
26.See Prystash v. State, 3 S.W.3d 522, 534-35 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000); Cantu v. State, 939 S.W.2d 627, 648-49 (Tex. Crim. App.), cert. denied, 522 U.S. 994 (1997).
27. Tex. R. App. P. 33.1.
28.Cf Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996) (holding that if defendant objects to admission of evidence but same evidence is subsequently introduced from another source without objection defendant waives earlier objection).
29. 983 S.W.2d 249 (1998),cert. denied, 526 U.S. 1070 (1999).
30. 530 U.S. 466 (2000).
31.Jackson v. State, 33 S.W.3d 828, 840 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1068 (2001); McFarland, 928 S.W.2d at 498-99; Prystash, 3 S.W.3d at 535-36; Tong v. State, 25 S.W.3d 707, 715 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001).
32.Apprendi, 530 U.S. at 490.
33.Smith v. Black, 904 F.2d 950, 968-69 (5th Cir. 1990) (citing Franklin v. Lynaugh, 487 U.S. 164, 174-77 (1988)), vacated and remanded on other grounds, 503 U.S. 930 (1992).
34.Franklin v. Lynaugh, 487 U.S. 164, 173-74 (1988)(plurality op.).
35.Id. at 172-74 (citations omitted).
36.Id. at 187 (O'Connor, J., concurring, joined by Blackmun, J.).
37.Cf. Davis v. State, 961 S.W.2d 156, 160 (Tex. Crim. App. 1998)(holding that when testimony given for limited purpose, such testimony may not thereafter be admitted on issue of guilt).