This post examines a recent opinion from the Court of Appeals of Texas - 14th District 2017: Kahlid Yusuf Worrell v. State, 2017 WL 124351 (2017). The opinion
addresses what is, at least to me, a novel scenario. As the court explains,
[t]his is an appeal from two separate
judgments. The first is a judgment adjudicating guilt, which arises out of an
offense committed in 2011. The second is a judgment of conviction by jury,
which arises out of an offense committed in 2015, when appellant was on
community supervision. Several issues are raised between the two cause numbers,
but we only address the merits of one issue in which appellant challenges the
admission of extraneous-offense evidence.
Kahlid Yusuf Worrell
v. State, supra. You can read about the prior judgments in the news stories you can find here, here, here and here.
The opinion goes on to outline the charges in and the
outcome of each of the prior prosecutions, beginning with the burglary case:
NO.
14-15-00966-CR
Appellant pleaded guilty in 2011 to a charge of
burglary of a habitation. The trial court deferred an adjudication of guilt and
placed appellant on community supervision for a period of six years. In 2015,
the State moved to adjudicate guilt, alleging that appellant had violated the
terms of his community supervision by committing the murder that is the subject
of the other cause number in this appeal. The trial court carried the motion
with the murder trial and ruled on it after the jury returned a verdict in that
other case.
Appellant's trial counsel filed notices
of appeal in both the burglary case and the murder case. Appellant was
appointed different counsel on appeal, and counsel here has filed a single
brief addressing both cases together. In the combined brief, counsel concludes
that the appeal of the burglary case (and only that case) is wholly frivolous
and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of
the record and demonstrating why there are no arguable grounds to be advanced. See High
v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
A copy of counsel's brief was delivered
to appellant, and he was advised of the right to examine the appellate record
and file a pro se response. Appellant requested and was provided a copy of the
record. Appellant also filed a pro se response to counsel’s Anders brief.
We have carefully reviewed the record,
counsel's brief, and appellant's pro se response and agree that the appeal in
the burglary case is wholly frivolous and without merit. Further, we find no
reversible error in the record. We need not address the merits of each claim
raised in an Anders brief or a pro se response when we have
determined that there are no arguable grounds for review. See Bledsoe
v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Accordingly, we affirm the trial
court's judgment in the burglary case.
Kahlid Yusuf Worrell
v. State, supra.
The court then outlines the facts and led to the charges in
the appeal before it:
NO.
14-15-00967-CR
In the murder case, appellant's
appointed counsel asserts three separate points of error, but they all complain
of the same issue, which is the admission of extraneous-offense evidence. The
State did not file a brief responding to the merits of this complaint.
Background. The complainant, a twelve-year-old boy, was
fatally shot three times in his home. The exact reason for the shooting was
never fully explained at trial. The evidence suggested that the
complainant was merely in the wrong place, at the wrong time, caught in a
terrible moment between his adult brother, Dashawn, and appellant, who was
Dashawn's former friend.
Dashawn testified that he had known
appellant for about a year. On the day of the shooting, Dashawn invited
appellant over to his house to smoke marijuana. Dashawn also hoped that
appellant would drive him to a barbershop to get his hair cut. Appellant arrived
in the afternoon. He came into the living room and engaged in small talk with
Dashawn. The complainant was also in the living room, watching cartoons. After
a few minutes, Dashawn left for the bathroom to brush his teeth. He left the
door to the bathroom open and carried on his conversation with appellant.
Dashawn did not detect any sense of animosity or disagreement coming from
appellant.
Without warning, appellant walked over
to the area just outside the bathroom and shot Dashawn in the face. Dashawn
managed to close and lock the bathroom door. Appellant then fired into the
bathroom through the door. Dashawn was struck five more times. He escaped
through the bathroom window and ran to a neighbor's house, where he sought
help. Because he could not speak (a bullet had lodged in his throat), Dashawn
used a neighbor's phone to write a message saying that he had just been shot by
appellant. Dashawn also wrote that his siblings were still inside the home.
When the police arrived, appellant had
already fled the scene. The complainant was pronounced dead on arrival. He had
been shot in the head, in the living room where he had been watching
television. Another sibling had been shot in the neck, but the bullet just
grazed the skin.
The police quickly identified appellant
as a likely suspect. Appellant had dialed Dashawn's house phone shortly before
the shooting, and his number appeared on the caller ID. The complainant's twin
had also identified appellant in a photo array. The twin was in another room
when the shooting occurred, meaning that he did not witness the shooting, but
the twin said that he had seen appellant in the home in the moments immediately
preceding the shooting. The twin was also able to give a description of what
appellant had been wearing.
Within a week of the shooting, the
police found appellant driving around in the neighborhood. They initiated a
traffic stop and searched his vehicle. In the trunk, they found the murder
weapon, a box of ammunition, and a laptop.
The laptop is the
focus of appellant's extraneous-offense complaint.
Kahlid Yusuf Worrell
v. State, supra. If you are
interested, you can read more about the facts in the second case in the news
stories you can find here, here and here.
The opinion goes on to explain that,
In a hearing outside the presence of
the jury, the State indicated that it was planning to introduce evidence that
appellant had stolen the laptop.
The State explained that this extraneous theft was relevant, in part, because
the laptop led to the
discovery of other important evidence. In its proffer, the State said that the laptop was registered to a
Vietnamese man, who reported that the laptop was taken from the trunk of his car when he was
shopping at Walmart. The theft occurred on the same day as the shooting, and
the Walmart was less than two miles away from Dashawn's house. Based on that
information, investigators sought the surveillance footage from inside the
Walmart. From that footage and additional investigations, the State learned
that appellant had paid cash for a box of ammunition, that the ammunition
matched the kind that was both used in the shooting and found in appellant's
car, and that the purchase occurred less than one hour before the shooting. The
surveillance footage also corroborated the twin's description of appellant's
clothing.
The State argued that the extraneous
theft was admissible because of the role it played in the investigation. The
State also argued that the extraneous theft was probative of appellant's motive
and identity. Defense counsel objected. He argued that the evidence of
appellant's purchase at Walmart could be introduced without mentioning the
extraneous theft. The trial court overruled the objection.
Kahlid Yusuf Worrell
v. State, supra.
The Court of Appeals then explained that
[w]e need not determine whether the
trial court abused its discretion by admitting the evidence of the extraneous
offense because any error in the admission of that evidence would be subject to
a harm analysis for nonconstitutional error, and under that standard, the error
would be harmless.
Nonconstitutional error must be disregarded
unless it affects a defendant's substantial rights. See Tex.
R. App. P. 44.2(b). An error affects a defendant's substantial rights when the
error has a substantial and injurious effect or influence on the jury's
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). If the error had no or only a slight influence on the verdict, the
error is harmless. See Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998).
When assessing harm, we consider `everything
in the record, including any testimony or physical evidence admitted for the
jury's consideration, the nature of the evidence supporting the verdict, the
character of the alleged error and how it might be considered in connection with
other evidence in the case.’ See Morales v. State, 32 S.W.3d
862, 867 (Tex. Crim. App. 2000). We also consider the jury instructions given
by the trial court, the State's theory and any defensive theories, closing
arguments, and even voir dire, if material to the defendant's claim.
Kahlid Yusuf Worrell
v. State, supra.
The court goes on to point out that the
State produced overwhelming evidence of
appellant's guilt. When the complainant was killed, the only other people in
his home were his siblings and appellant. Dashawn testified that appellant was
the only shooter, and the physical evidence supported that finding.
A total of eleven cartridge casings
were recovered from the home. Ten of the casings were aluminum, and the
eleventh was brass. A firearms expert testified that all eleven casings were
fired from the same weapon—the gun found in appellant's vehicle. The aluminum
casings matched the brand of ammunition that appellant purchased from Walmart.
Moreover, the box of ammunition found in appellant's vehicle was missing
exactly ten bullets. The State suggested that the bullet with the brass casing
may have already been in the chamber when appellant loaded the magazine with
the bullets with the aluminum casings.
The jury also heard testimony from one
of appellant's coworkers that appellant had confessed to the murder. The
coworker testified that appellant called him after the shooting, during a time
when there was widespread media coverage of the killing. Appellant wanted the
coworker to pick up appellant's paycheck, but the coworker declined. According
to the coworker, appellant mentioned during their conversation that he was
trying to hurt Dashawn and that the killing of the complainant was accidental.
The evidence of guilt in this case was
strong and compelling. Appellant's role in an extraneous theft was not likely
to move the jury from a state of non-persuasion to a state of persuasion.
Kahlid Yusuf Worrell
v. State, supra.
The Court of Appeals went on to explain that the
appellant was charged with murder, not
theft, and because two offenses are dissimilar, there is a reduced chance that
the jury would have convicted appellant based on a pattern of past conduct. We
also note that the jury received a limiting instruction in the charge, which
further reduced the chance that the conviction was based on an impermissible
inference of character conformity. See Jones v. State, 944
S.W.2d 642, 654 (Tex. Crim. App. 1996).
Kahlid Yusuf Worrell
v. State, supra.
The court then took up the remaining issues in the case:
The State did not mention the
extraneous theft during its closing argument. Neither did defense counsel,
which means the jury probably gave little weight to it. See Lester
v. State, 889 S.W.2d 592, 594 (Tex. App.—Houston [14th Dist.] 1994,
pet. ref'd) (`Because the prosecutor did not mention the extraneous offense in
her closing argument, the jurors probably gave little weight to it’).
However, defense counsel emphasized a
different extraneous offense: the aggravated assault against Dashawn. Even
though appellant did not testify, counsel accepted as true that appellant went
to Walmart, that he purchased a box of ammunition, and that he then went into
Dashawn's house with a loaded gun. Counsel said that all of those facts were
`uncontroverted.’ What happened inside the house is where counsel's story
differed from the State's. Counsel said that there was a two-person gunfight
between Dashawn and appellant. Counsel's strongest piece of evidence in favor
of this theory was the brass casing, which was found inside the bathroom.
Counsel suggested that Dashawn must have fired the bullet from this casing
(allocating all of the aluminum casings to appellant), meaning that Dashawn
could have been responsible for the death of the complainant.
Counsel then argued that the State had
overreached when it filed its criminal charges against appellant:
`Is he guilty of something? Damn straight. Yes, he is. Should he pay
for what he did? Yes. But he should . . . pay for what he did, not for what the
State has the power to charge him with. Because you know that there'[re] other
offenses he can be charged with. Aggravated assault.
But appellant was not charged with the
aggravated assault of Dashawn; he was charged instead with the murder of the
complainant. By emphasizing this extraneous assault, counsel drew attention
away from the extraneous theft and any unfair prejudice it might have created.
Based on the entire record, we cannot
say that the evidence of the extraneous theft had a substantial and injurious
effect on the jury's verdict. At most, the evidence only slightly influenced
the jury. We conclude that any error in the admission of this evidence was
harmless. See Johnson, 967 S.W.2d at 417.
Kahlid Yusuf Worrell
v. State, supra.
The Court of Appeals therefore held that the “trial court’s
judgments are affirmed.” Kahlid Yusuf
Worrell v. State, supra.
No comments:
Post a Comment