Eric Dewayne Kirksey v. State

Opinion issued November 6, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00156-CR

____________

ERIC DEWAYNE KIRKSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 44,187

MEMORANDUM OPINION

A jury found appellant, Eric Dewayne Kirksey, guilty of the offense of burglary

of a habitation, (1) and the trial court assessed his punishment at confinement for twenty

years. In four issues, appellant contends that the trial court erroneously admitted

evidence of extraneous offenses and fingerprint-comparison evidence, his counsel

rendered ineffective assistance due to a conflict of interest, and the State engaged in

improper jury argument.

We affirm.

Factual and Procedural Background

Michael Luera, a maintenance supervisor at Alta Creek apartments, testified

that on April 10, 2006, he saw appellant driving a white sedan that had been used in

committing a previous burglary at the apartments. After notifying the front office to

call for emergency assistance, Luera located the white sedan and waited for police

officers to arrive. Although Luera noticed that appellant was no longer in the white

sedan, he saw a female in the passenger seat. Luera heard a "loud pop," which

sounded like someone breaking a patio sliding door by prying it with a tool. When

police officers arrived, Luera directed them to an apartment with a broken back patio

door. One of the police officers went to the front of the apartment, and the other

officer told appellant to "come out with [his] hands up." Luera saw appellant peek

through the blinds, come outside, and say "You will have to shoot me because I'm not

going to jail." Appellant then began struggling with the police officer, and Luera ran

to help the police officer hold appellant down. Appellant overpowered them both and

started running. Luera dropped his radio and pursued appellant, first on foot and then

in a golf cart. When Luera caught up to appellant, Luera saw that police officers had

apprehended and handcuffed appellant.

Fort Bend County Sheriff's Deputy F. Flores testified that he was dispatched

to the Alta Creek apartments regarding a burglary in progress. When Flores arrived,

Luera pointed out an apartment with a broken back patio door. After another deputy

had secured the front door of the apartment, appellant walked outside, and Flores

identified himself. Appellant ran back into the apartment. Flores climbed over the

patio fence and began moving to the door when appellant came outside again.

Appellant exclaimed, "You're going to have to shoot me." Seeing nothing in

appellant's hands, Flores holstered his weapon and tried to detain appellant, but

appellant resisted. Flores was able to "latch on around [appellant's] neck," but

appellant continued to resist, climbing over the patio fence with Flores on his back.

Luera tried to help Flores get appellant on the ground, but appellant overpowered

them both and ran away. Flores pursued appellant, at first on foot and then, after

appellant jumped over a high fence, in the car of an elderly gentleman who

volunteered the use of his car to Flores. When Flores caught up to appellant, they

"squared off again," and Flores was able to subdue and handcuff appellant. After

securing appellant, Flores returned to the apartment complex and found the white

sedan that appellant had been driving. Inside the car, Flores found Regina Green.

Regina Green, appellant's girlfriend, testified that she had met appellant at a

Wal-Mart and began dating him in April of 2005. On the morning of April 10, 2006,

appellant had borrowed Green's white sedan for two hours. When appellant returned

and picked her up, there were several stolen items in the car, including jewelry, a

jewelry box, a digital camera, a camcorder, and a laptop computer. At this time,

Green did not know that the items were stolen, but when she asked appellant about

some of the items, he told her not to worry about them. Green rode in the car with

appellant to the apartment complex. When they arrived, appellant told her that he was

going to pick up some money, and he left her in the car. As she waited for appellant,

Green saw a police car drive up, police officers running, and an employee of the

apartment complex driving over the grass in a golf cart. About twenty minutes later,

police officers approached Green and asked her permission to look in her car. The

officer arrested Green after they found the stolen property.

Fort Bend County Sheriff's Sergeant L. Phipps testified that two fingerprints

found on cologne bottles inside of the apartment that had been broken into matched

appellant's fingerprints.

Fort Bend County Sheriff's Detective C. Arredondo testified that on April 10,

2006, appellant made a statement to him. In his statement, appellant stated that he

went to the apartment complex to meet an "associate" named Clarence. Appellant

knew where Clarence lived because he had "been there and [had] seen him on three

to four previous occasions." After driving to the apartment building, appellant saw

Clarence walking towards the apartment. Appellant walked to the apartment and

knocked, but Clarence did not answer. When "three unknown guys exited the

apartment across the hall," appellant "asked them if they knew where Clarence went."

They told him that Clarence had just walked into the apartment, so appellant walked

around to the patio. At this time, appellant noticed that the patio door was shattered,

and, to get Clarence's attention, he beat on the glass door, further breaking the patio

door. Appellant then entered the apartment to look for Clarence, but Clarence was

not there. When appellant opened the front door to leave, he saw a police officer and

slammed the front door and locked it. When he left through the patio door, appellant

struggled with a police officer at the patio door before he could run away.

Extraneous Offenses

In his first issue, appellant argues that the trial court erred in admitting

evidence that the officers had found stolen property in Green's car because it was not

relevant, was "more prejudicial than probative," and was "unfairly prejudicial." See

Tex. R. Evid. 402, 403, 404(b).

We review a trial court's decision to exclude evidence under an abuse of

discretion standard. Rodriguez v. State , 203 S.W.3d 837, 841 (Tex. Crim. App.

2006). Therefore, we will not reverse a trial court as long as its ruling was within the

"zone of reasonable disagreement." Id.

Rule 404(b)

Evidence of other crimes is not admissible to prove the character of a person

in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b); Powell

v. State , 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). However, this evidence may

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R.

Evid. 404(b). When evidence of an extraneous offense is offered to show intent, the

relevance of the extraneous offense derives from the "doctrine of chances"--the

common sense recognition of that logical process which eliminates the element of

innocent intent when similar instances ending in the same result recur. Casey v.

State , 215 S.W.3d 870, 881 (Tex. Crim. App. 2007) (citing Plante v. State , 692

S.W.2d 487, 491-92 (Tex. Crim. App. 1985)); Robbins v. State , 88 S.W.3d 256 , 267

n.9 (Tex. Crim. App. 2002) ("Texas courts have adopted and repeatedly applied

Wigmore's 'doctrine of chances' in criminal cases."); see also Rickerson v. State , 138

S.W.3d 528, 531 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd); Brown v. State ,

96 S.W.3d 508, 513 (Tex. App.--Austin 2002, no pet.); 2 John H. Wigmore,

Evidence in Trials at Common Law, § 302 at 241 (Chadbourn rev. 1979)

(discussing doctrine of chances).

Appellant asserts that "none of the items [found in Green's car] were from the

apartment where the burglary took place." Appellant also notes that the State

conceded that the stolen items were not linked to the evidence in the instant case.

However, the State asserted that the stolen property found in Green's car proved

appellant's intent to commit theft in the instant case. Throughout the trial, appellant

challenged the State's theory that appellant had intended to commit a burglary.

During his opening statement, appellant's counsel stated that "the State will be unable

to prove that there was an intent to commit theft." In his written statement, appellant

asserted that he had intended to meet a friend named Clarence, not take any property

belonging in the complainant's apartment. During his closing argument, appellant's

counsel again focused on the defensive theory that the State had not proved a

culpable intent. In light of the fact that intent was the central issue in this case,

evidence that appellant possessed stolen property in Green's car, which had been used

in previous burglaries at the apartment complex, was relevant to show appellant's

motive, intent, plan, and the absence of mistake or accident in the instant case.

Accordingly, we hold that the trial court did not err, under Rule 404(b), in

admitting evidence that appellant possessed the stolen property found in Green's car.

Rule 403

Relevant evidence may be "excluded if its probative value is substantially

outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. The opponent of

the evidence must not only demonstrate the negative attributes of the evidence but

must also show that these negative attributes "substantially outweigh" any probative

value. Page v. State , 125 S.W.3d 640, 649 (Tex. App.--Houston [1st Dist.] 2003,

pet. ref'd) (citing Montgomery v. State , 810 S.W.2d 372, 377 (Tex. Crim. App. 1990)

(op. on reh'g)).

The relevant criteria in determining whether the prejudice of extraneous

offense evidence substantially outweighs its probative value include: (1) how

compellingly the extraneous offense evidence serves to make a fact of consequence

more or less probable, (2) the potential the extraneous offense evidence has to

impress the jury "in some irrational but nevertheless indelible way," (3) the time the

proponent will need to develop the evidence, during which the jury will be distracted

from consideration of the indicted offense, and (4) the force of the proponent's need

for this evidence to prove a fact of consequence. Manning v. State , 114 S.W.3d 922,

926 (Tex. Crim. App. 2003) (describing these factors as Montgomery - Mozon factors).

First, the "fact of consequence" is whether appellant intended to commit a theft

in the complainant's apartment. The evidence that appellant was in possession of

stolen property in Green's car is compelling, tending to prove that appellant intended

to commit a burglary by showing his intent to commit a theft. Second, although there

was some risk that the jury might convict appellant solely because they believed that

he committed an extraneous offense, that risk did not substantially outweigh the

probative value of the evidence as it pertained to appellant's intent. Third, the

majority of the State's case centered on the evidence linking appellant to the

complainant's apartment and his attempt to flee. It is highly unlikely that the

evidence about the previously stolen items distracted the jury from the indicted

offense. See Manning , 114 S.W.3d at 928 . Finally, here, the issue of intent was

disputed, and the extraneous offense evidence strengthened the inference that

appellant had intended to commit a theft.

Accordingly, we hold that the trial court did not err, under Rule 403, in

admitting evidence that appellant possessed the stolen property found in Green's car.

We overrule appellant's first issue.

Fingerprint Evidence

In his second issue, appellant argues that the trial court erred in admitting the

expert fingerprint-comparison testimony of Sergeant Phipps because the State did not

prove, by clear and convincing evidence, that Phipps's expert opinion was reliable.

However, to preserve error, a complaining party must make a timely request,

objection, or motion and obtain an adverse ruling. Tex. R. App. P. 33.1; Lopez v.

State , 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). Here, appellant did not object

to Phipps's testimony at trial. By failing to object to Phipps's testimony, appellant

failed to preserve this issue for our review. Accordingly, we hold that appellant has

waived that issue for our review. (2)

We overrule appellant's second issue.

Conflict of Interest

In his third issue, appellant argues that his trial counsel's "relationship with a

testifying witness [for the State] represented a conflict of interest, and this conflict

had an adverse effect [on] counsel's performance."

Ineffective assistance of counsel may result when an attorney labors under a

conflict of interest. Acosta v. State , 233 S.W.3d 349, 355 (Tex. Crim. App. 2007);

Gaston v. State , 136 S.W.3d 315, 318 (Tex. App.--Houston [1st Dist.] 2004, pet.

struck). In order for a defendant to demonstrate a violation of his right to effective

assistance of counsel based on a conflict of interest, he must show that (1) his counsel

was burdened by an actual conflict of interest and that (2) the conflict had an adverse

impact on specific instances of counsel's performance. Cuyler v. Sullivan , 446 U.S.

335, 348 , 100 S. Ct. 1708, 1718 (1980); Ex parte Morrow , 952 S.W.2d 530, 538 (Tex.

Crim. App. 1997); Gaston , 136 S.W.3d at 318 . An actual conflict of interest exists

only if counsel is required to choose between either advancing his client's interest in

a fair trial or advancing other interests to the detriment of his client. Acosta , 233

S.W.3d at 355 ; Williams v. State , 154 S.W.3d 800, 803 (Tex. App.--Houston [14th

Dist.] 2004, pet. ref'd). It is not enough for appellant to show a possible conflict of

interest. Pollan v. State , 612 S.W.2d 594, 596 (Tex. Crim. App. 1981); Williams , 154

S.W.3d at 803 .

Here, appellant argues that a conflict of interest exists because his trial counsel

and Deputy Arredondo, a testifying witness for the State, "are cousins and have

known each other all their lives." Arredondo's testimony primarily concerned

appellant's statement, which Arredondo took. Appellant, however, has not directed

us to any evidence that defense counsel was required to choose between advancing

appellant's interests and advancing other interests or that any possible conflict had

an impact on specific instances of counsel's performance. See Cuyler , 446 U.S. at

348 , 100 S. Ct. at 1718 ; Acosta , 233 S.W.3d at 355 . Accordingly, we hold that

appellant has not demonstrated that his trial counsel was ineffective in his

representation of appellant.

We overrule appellant's third issue.

Improper Jury Argument

In his fourth issue, appellant asserts that the State made "improper statements"

in its closing argument to the jury. Permissible jury argument by the State generally

falls into four categories: (1) summation of the evidence; (2) reasonable deductions

from the evidence; (3) pleas for law enforcement; and (4) response to opposing

counsel. Jackson v. State , 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Dominguez

v. State , 125 S.W.3d 755, 763 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). To

preserve jury argument error a defendant must contemporaneously object and obtain

an adverse ruling. Cooks v. State , 844 S.W.2d 697, 727 (Tex. Crim. App. 1992);

Dominguez , 125 S.W.3d at 763 . If the objection is sustained, the defendant must

request an instruction to disregard the argument and, if granted, must move for

mistrial. Cooks , 844 S.W.2d at 727-28 ; Dominguez , 125 S.W.3d at 763 .

Appellant first complains that the State improperly argued, "The defense can

subpoena Clarence to come testify, even if Clarence doesn't want to come testify, if

he existed, just the way we subpoenaed Ms. Green to testify." Appellant's counsel

did not object to this portion of the State's argument, but appellant asserts that this

portion of the argument constitutes fundamental error. However, it is not

fundamental error for the State to comment on a defendant's failure to call a witness.

See Bible v. State , 162 S.W.3d 234, 249 (Tex. Crim. App. 2005) (stating that it is

"well-settled" that State may comment on defendant's failure to call certain

witnesses). Because appellant did not object, no error was preserved. Cooks , 844

S.W.2d at 727 ; Dominguez , 125 S.W.3d at 763 . Accordingly, we hold that because

the State's argument does not constitute fundamental error, appellant has waived this

point for review.

Appellant next complains that the State improperly commented on his failure

to testify. During the State's argument the following exchange occurred:

[The State]: Or maybe the Defendant's statement is not correct.

. . . Ask yourself: Why would somebody [] see an

officer standing in the breezeway. Why would you

slam the door and go back the other way? What's in

his mind? If you were just visiting Clarence's

apartment, why would you slam the door and run?

No, he runs out the back.

Why wouldn't the Defendant tell us in his statement

that he's never been in Clarence's apartment?

Because that's what the defense wanted you to

believe.

[Appellant]: I'm going to object, Your Honor. This is getting

really close to commenting on the fact that the

Defendant did not testify in this case. We would

strongly object to any argument coming close to

that.

[The trial court]: Sustained.

[The State]: Ladies and gentlemen, the Defendant's testimony in

this case comes in his statement, okay? Don't

consider the fact-

[Appellant]: Objection, Your Honor, talking about the Defendant

testifying.

[The trial court]: Sustained.

[The State]: Don't consider the fact that he didn't testify in court

here. Don't consider that. That would be wrong.

Do consider what's in this statement. What's in this

statement is properly warned, properly authored,

unobjected to, admitted into evidence, and it's for

you to consider.

Notice in the statement the Defendant calls it - at the

end writes, in his own handwriting, "the apartment

in question"? What happened to Clarence's

apartment? Would you go in - why would you go

pick up a laptop and a camcorder, a camera and

jewelry from some bushes near Auto Zone on

Bissonnet and not know it was stolen?

Prosecutorial argument is a comment on a defendant's failure to testify if "the

language used was manifestly intended or was of such a character that the jury would

necessarily and naturally take it as a comment on the defendant's failure to testify."

Busby v. State , 253 S.W.3d 661, 666 (Tex. Crim. App. 2008) (quoting Cruz v. State ,

225 S.W.3d 546, 548 (Tex. Crim. App. 2007)). Any challenged argument should be

looked at in its full context based on what it would necessarily and naturally mean to

a jury. Cruz , 225 S.W.3d at 549 . "[W]hen a defendant makes a statement which is

admitted into evidence, the State's reference to the statement and comparison between

the statement and the other evidence collected is not a comment on the defendant's

failure to testify or his right to remain silent." Garcia v. State , 126 S.W.3d 921, 924

(Tex. Crim. App. 2004). Here, in its argument, the State referred to appellant's

written statement, which had been admitted into evidence. In doing so, the State

highlighted the inconsistency of appellant's statement that he had entered the

apartment of an "associate" named "Clarence" with the fact that he had actually

entered the apartment of the complainant, not "Clarence." Accordingly, we hold that

the State did not improperly comment on the defendant's failure to testify.

Finally, appellant complains that at the beginning of the State's closing

argument, it explained, "The Defendant has decided to go to the Judge for

punishment, so the Judge can consider the full range of punishment, everything from

probation to time in jail. But if there's a 'not guilty,' the process stops. It stops right

here, and it ends." Appellant did not object to these comments at trial, so no error

was preserved for appeal. Cooks , 844 S.W.2d at 727 ; Dominguez , 125 S.W.3d at 763 .

Accordingly, we hold that appellant has waived this complaint for review.

We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Penal Code Ann. § 30.02 (a)(1) (Vernon 2003).

2.

Within this issue, appellant also "complains of his counsel's ineffectiveness" for

allowing the testimony of Sergeant Phipps without objection or voir dire. Appellant

raises this complaint in one sentence without any substantive argument or citation to

any authority; therefore, appellant has also waived this argument. See Tex. R. App.

P. 38.1(h) ("The brief must contain clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.").