Thompson, Al v. State

Affirmed and Memorandum Opinion filed July 29, 2004

Affirmed and Memorandum Opinion filed July 29, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00273-CR

NO. 14-03-00274-CR

____________

AL THOMPSON , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 228th

District Court

Harris County, Texas

Trial Court Cause Nos. 915,676

& 915,677

M E M O R A N D U M O P I N I O N

A jury found appellant Al Thompson guilty

of burglary of a habitation and aggravated assault and assessed punishment at

thirty-five years = confinement and five years = confinement,

respectively. Appellant raises six

issues on appeal. We affirm.

Factual and

Procedural Background

On June 19, 2002, appellant and his

long-time friend, Jerry Cooper, spent the evening together consuming drugs,

including ecstacy, marijuana, and PCP.

In the early morning hours of June 20th, Cooper was driving appellant = s truck, when

appellant, who was riding as a passenger, started acting paranoid and thought

someone was trying to A get @ them. While Cooper was driving, appellant shot him

in the right leg, and when Cooper looked over at him, appellant was pointing

the gun at Cooper = s chest.

Appellant pulled the trigger again, but the gun jammed. Cooper then unlocked the truck door and

jumped from the moving vehicle. Cooper

believed appellant = s unusual behavior was caused by the drugs

appellant had ingested earlier that evening.

Shortly thereafter, at approximately 1:30

a.m., Michael Sotiropoulos and his fiancee, Tami Taylor, heard someone

screaming for help outside their second floor apartment. They looked outside a window and saw

appellant running back and forth on a nearby roof, waiving a gun and yelling for

help. Tami called 911 while Michael

retrieved his gun from a nearby basket.

Appellant then jumped onto their balcony and broke into their apartment

through the french doors located on the balcony. When appellant entered the apartment, he

pointed his gun at Michael, continued to ask for help, and stated that he

needed the police.

When a police officer arrived, he pointed

a spotlight toward the balcony where appellant, Michael, and Tami were

standing. Michael pointed his gun at

appellant and asked him to leave.

Appellant continued asking to call the police, so Michael directed

appellant = s attention to the police vehicle located

nearby. Appellant then took the gun from

Michael = s hand and threw

it on the floor. Tami picked up the gun

from the floor and told appellant to get away from Michael. Appellant lunged for Tami, grabbed her, and

took the gun out of her hand. At the

same time, Michael jumped on appellant to try to prevent Tami from being

injured. Thereafter, a struggle ensued

between appellant and Michael, which ended when appellant shot Michael in the

chest at point-blank range. Tami heard

additional shots, and believing Michael was dead, she ran from the

apartment. Appellant dragged Michael

into the bathroom and began barricading the bedroom doors with furniture. The police then determined a hostage

situation had developed and contacted the Houston Police Department SWAT Team. Appellant eventually surrendered at approximately

6:30 a.m.

The jury found appellant guilty of

burglary of a habitation and aggravated assault. After appellant pleaded true to a prior

conviction, the jury assessed punishment at thirty-five years = confinement for

the burglary offense and five years = confinement for

the aggravated assault offense.

Appellant raises six issues on appeal, claiming the trial court erred by

(1) admitting portions of Michael Sotiropolous = s testimony

because it constituted victim impact evidence; (2) admitting empty medication

bottles because they were also victim impact evidence; (3) allowing a video

camera to record portions of the trial; (4) failing to include a jury

instruction on necessity; (5) failing to hold a hearing on appellant = s motion for new

trial; and (6) denying appellant = s motion for new

trial based on juror misconduct.

Discussion

I. Victim

Impact Evidence

In his first two issues, appellant

contends the trial court erroneously admitted victim impact evidence. Specifically, appellant challenges (1)

Michael Sotiropolous = s testimony concerning his physical and mental state of

mind after the incident and (2) the admission of empty medication bottles. Appellant, however, failed to properly preserve

error on each of the challenged statements and on the admission of the empty

bottles. The relevant trial testimony is

as follows: [1]

Prosecutor: When you got out of the hospital, where did

you go?

Michael: Friend = s house. I was

afraid to go back to the house .

Prosecutor: What were you afraid Of [sic]?

Defense

Counsel: Objection, Your Honor.

Michael: People.

Defense

Counsel: Relevancy of this after this

incident, unless there = s something that directly relates.

Court: Be specific in your questions. Sustained.

* * *

Prosecutor: How often do you think about what happened on

June 20th, 2002?

Michael: Every night, every day, every moment

of my life .

Defense

Counsel: Objection, Your Honor.

Court: That = s overruled.

However, move along, please.

Prosecutor: Yes, sir. How often do you think about what

happened on

June B

Michael: Every moment. Every time I have nightmares. I can = t sleep at night. I go see a psychotherapist. I can = t do anything. I take pills every two hours. I can = t go to the bathroom. I can = t do nothing. I can = t live one moment .

* * *

Prosecutor: How long are you going to have to stay on all

those pills?

Michael: Until I don = t have pain, until the pain stops .

Prosecutor: Do you have any idea when that would be?

Michael: I don = t know. I guess

[the] doctor told me within two to five years.

Most likely I = m not going to be able to use the left two fingers again.

Appellant made only two objections during

this testimony: relevancy and a general objection. The trial court sustained appellant = s relevancy

objection, and because appellant did not request any further relief, the trial

court granted appellant all the relief he requested. Thus, nothing is presented for review. See Tucker v. State , 990 S.W.2d 261,

262 (Tex. Crim. App. 1999) (stating appellant must obtain adverse ruling to

present complaint on appeal); McCoy v. State , 10 S.W.3d 50, 55 (Tex.

App. C Amarillo 1999, no

pet.) (holding that because appellant failed to request instruction to

disregard after objection was sustained, A appellant obtained

all the relief he requested and he may not now complain on appeal @ ).

Further, appellant = s general

objection was insufficient to put the trial court on notice that he was

objecting to alleged improper victim impact evidence. Tex.

R. App. P. 33.1(a)(1) (providing objection must state legal basis, A unless the

specific grounds are apparent from the context @ ). After appellant = s initial

relevancy objection, the prosecutor questioned Michael regarding identification

of appellant and whether he gave appellant permission to enter the

apartment. The prosecutor then asked

Michael how often he thought about the incident, to which appellant = s counsel made a

general objection. Because appellant did

not state the grounds for the general objection, and the grounds for the

objection were not apparent from the context of the testimony, he has waived

any alleged error on review. Id .

Regarding admission of the empty medication

bottles, appellant objected on the grounds of Texas Rules of Evidence 401, 402

and 403 arguing that although A there maybe [sic]

some relevancy here, it seems to be superfluous, unnecessary, confusing to the

jury and prejudicial without being really probative. @ Appellant, however, failed to object on the

basis of improper victim impact evidence; therefore, the alleged error, if any,

is waived. Tex. R. App. P. 33.1(a)(1)(A); Rezac v. State , 782

S.W.2d 869, 870 (Tex. Crim. App. 1990).

Accordingly, we overrule appellant = s first and second

issues.

II. Video

Camera

In his third issue, appellant contends the

trial court erred by allowing a video camera in the courtroom during a portion

of the trial. Appellant claims the

camera was so intrusive that it violated his due process rights and right to a

fair trial. In general, trial courts

have broad and plenary power to regulate trials. State ex rel. Rosenthal v. Poe , 98

S.W.3d 194, 199 (Tex. Crim. App. 2003); Ex parte Jacobs , 664 S.W.2d 360,

363 (Tex. Crim. App. 1984). The court

has all powers necessary for the exercise of its jurisdiction and is required

to conduct the proceedings in an orderly and expeditious manner and to control

the proceedings so that justice is done.

Tex. Gov = t Code Ann. ' 21.001(a), (b)

(Vernon 2004). Thus, absent a

constitutional provision, statute, or rule to the contrary, the trial court has

the power to control the procedural aspects of a case. Poe , 98 S.W.3d at 199 (stating that in

absence of statute specifically prohibiting videotaping of jury deliberations,

it would be difficult to decide whether trial court abused its discretion); Graham

v. State , 96 S.W.3d 658, 660 (Tex. App. C Texarkana 2003,

pet. ref = d).

Appellant cites Estes v. Texas, 381

U.S. 532 (1965), to support his position that the trial court erred in allowing

the camera in the courtroom over objection.

Estes , however, is easily distinguishable. In Estes , the trial was widely

publicized, and the media coverage was very extensive. Id . at 535 B 37. The court referred to the intrusion of the

media as a A bombardment of the community with the

sights and sounds of a two-day hearing during which the original jury panel,

the petitioner, the lawyers and the judge were highly publicized. @ Id . at 538. The court concluded that because of the

notoriety and omnipresence of the media, appellant = s due process

rights were violated. Id . at 535 B 38, 551 B 52.

In this case, the trial court allowed a

camera during the third day of trial, which consisted of the remaining

testimony of Tami Taylor, closing arguments, and the jury rendering its

verdict. [2] Appellant objected, arguing the camera was

intrusive and might affect the jury and the other witnesses. The trial court overruled appellant = s objection. On appellant = s urging, the

court instructed the jury that the film crew was from Bulgaria and the camera

was present to film portions of the trial for a documentary on jurisprudence

throughout the world. The court further

instructed the jury not to consider the fact that any portion of the film might

or might not be used for any purpose.

Here, the trial court allowed one single

camera to film a small portion of the trial for a documentary film. There is nothing in the record to suggest the

societal pressures and media frenzy present in Estes existed in this

case. See Duffy v. State , 567

S.W.2d 197 , 201 B 03 (Tex. Crim. App. 1978) (holding an

accidental filming of a few jurors for a ten to fifteen second time period is

not of sufficient magnitude to create presumption of prejudice to appellant,

thus appellant was required to show harm) .

Additionally, there is no evidence in the record appellant was harmed or

prejudiced in any way by the camera = s presence. See id. Accordingly, we conclude the trial court did

not abuse its discretion by allowing a single camera in the courtroom to film a

small portion of the trial. We overrule

appellant = s third issue.

III. Jury

Instruction on Necessity

In his fourth issue on appeal, appellant

contends the trial court erred in failing to submit a jury instruction on the

defense of necessity. In his brief,

appellant refers to the necessity defense only in the context of the burglary

charge; therefore, we will limit our review to whether the trial court erred in

failing to instruct the jury on the defense of necessity with respect only to

the burglary charge. Tex. R. App. P. 38.1(e).

Generally, a defendant is entitled to an

instruction on every defensive issue raised by the evidence, as long as such an

instruction is properly requested. Granger

v. State , 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). We review the evidence offered in the light

most favorable to the defense to determine whether the evidence raises a

defensive issue. Pennington v. State ,

54 S.W.3d 852, 856 (Tex. App. C Fort Worth 2001,

pet. ref = d); Stefanoff

v. State , 78 S.W.3d 496, 500 (Tex. App. C Austin 2002, pet.

ref = d). The evidence may be from any source and may

be either weak, strong, unimpeached, contradicted, or unbelievable. Muniz v. State , 851 S.W.2d 238, 254

(Tex. Crim. App.1993); Ford v. State , 112 S.W.3d 788, 793 (Tex. App. C Houston [14th

Dist.] 2003, no pet.). Thus, if the

defensive issue is raised from any source, and the defendant properly requests

an instruction on that issue, the trial court = s refusal to

submit the issue constitutes an abuse of discretion. Darty v. State , 994 S.W.2d 215, 218

(Tex. App. C San Antonio 1999, pet. ref = d). However, if the evidence fails to raise every

element of a defensive issue, the trial court is not required to submit the

requested instruction. Muniz , 851

S.W.2d at 254 ; Stefanoff , 78 S.W.3d at 500 .

In order to raise the defense of

necessity, the defendant must first admit he committed the charged offense and

then offer the defense as a justification for his illegal conduct. Young v. State , 991 S.W.2d 835, 838

(Tex. Crim. App. 1999); Ford , 112 S.W.3d at 793 ; Auston v. State ,

892 S.W.2d 141, 145 (Tex. App. C Houston [14th

Dist.] 1994, no pet.). In this case,

appellant was required to admit he entered a habitation without the effective

consent of the owner, Michael Sotiropoulos, and committed or attempted to

commit the felony offense of aggravated assault. See Tex.

Pen. Code Ann. ' 30.02 (Vernon 2003). Appellant argues that A [b]y

cross-examining these witnesses about the manner of Appellant making an entry

into the apartment, and not contesting that entry, trial counsel was admitting

that Appellant had made the entry. @ Appellant, however, failed to specifically

admit each element of the charge of burglary of a habitation; therefore, the

trial court did not abuse its discretion in omitting an instruction on

necessity. See Young , 991 S.W.2d

at 839 ; Auston , 892 S.W.2d at 145 (holding trial court properly omitted

necessity instruction because A [a]ppellant did

not testify, nor present any such evidence as to his state of mind @ ). We overrule appellant = s fourth issue.

IV. Motion

for New Trial

In his final two points of error,

appellant argues the trial court abused its discretion in failing to hold a

hearing on the motion for new trial and in denying the motion. The record shows the trial court held a

hearing on appellant = s motion for new trial on May 14, 2003;

however, the trial court denied appellant = s request to

present live testimony at that hearing.

Since appellant received a hearing on his motion for new trial, we

presume his point of error alleges the trial court erred in not allowing

appellant to present live testimony. Tex. R. App. P. 38.1(e).

Texas Rule of Appellate Procedure 21.7,

which governs the type of evidence allowed at a hearing on a motion for new

trial, provides, A The court may receive evidence by

affidavit or otherwise. @

The case law cited by appellant as support for his position is premised

on the fact that appellant was denied an evidentiary hearing; however, that is

not the case here. The trial court held

a hearing on appellant = s motion for new trial and allowed the

parties to submit evidence by affidavits only, which is specifically allowed by

Rule 21.7. Accordingly, we hold the

trial court did not abuse its discretion by not allowing appellant to present

live testimony during the hearing on his motion for new trial. See McIntire v. State , 698 S.W.2d 652,

658 (Tex. Crim. App. 1985); Scaggs v. State , 18 S.W.3d 277, 281 (Tex.

App. C Austin 2000, pet.

ref = d).

We must next determine whether the trial

court abused its discretion in denying the motion for new trial. During deliberations on the punishment issue,

a juror, Murl Murphy, telephoned his wife on a cell phone while at the

courthouse. The relevant portion of

Juror Murphy = s affidavit is as follows:

On Friday, February 28, 2003, I

spoke with my wife, Rose Murphy, on a cell phone while at the courthouse. I asked her to change travel plans that we

had made for the next Monday, March 3, 2003.

In response to her questioning if it was really necessary to make the

travel changes, I told her that because one juror was holding out for 20 years

and most of the rest of us wanted more time, I did not see any way the jury

could reach a decision by the end of the day.

That was my sole statement about the case itself, and my wife did not

question me about that statement. The

conversation was solely about re-arranging our schedule to accommodate my jury

service.

At no point during the trial did I

discuss the facts of the case with my wife or with anyone else. At no point during the trial did I discuss

any of the issues of the case with my wife or anyone else. At no point during the trial did my wife

comment, offer or suggest any opinion as to the outcome of the trial or what

punishment might be appropriate. It

would be inaccurate to say that my wife and I A discussed @ the case or that my wife A conversed with me @ about the case while the case was

still pending.

In no way did this phone call or

conversation influence my verdict in the case.

My verdicts were based solely on the evidence and testimony that were

presented during the trial. I did not

discuss this phone call with any of the other jurors.

Appellant relies on Texas Rule of

Appellate Procedure 21.3(f), which provides, A The defendant must

be granted a new trial . . . when a juror has talked with anyone about the

case. @ Appellant argues this rule removes any

discretion from the trial court and a new trial is automatic regardless of

whether any harm resulted. We disagree.

When a juror converses with an

unauthorized person about the case, injury to the defendant is presumed and a

new trial may be warranted; however, the State may rebut the presumption of

harm. Quinn v. State, 958 S.W.2d

395, 401 (Tex. Crim. App. 1997); Robinson v. State , 851 S.W.2d 216 , 230

(Tex. Crim. App. 1991). In order to

rebut the presumption, the State is required to show the accused was not

injured or prejudiced. Stults v.

State , 23 S.W.3d 198, 206 (Tex. App. C Houston [14th

Dist.] 2000, pet. ref = d).

Reversal may not be required if the juror testifies that he did not tell

any other members of the jury about the statement and the statement would not

influence the juror in reaching a verdict.

Ites v. State , 923 S.W.2d 675 , 77 B 78 (Tex. App. C Houston [1st

Dist.] 1996, pet. ref = d).

Here, Juror Murphy testified by affidavit

that the telephone call to his wife concerned rearranging travel plans for the

following Monday. He stated his wife did

not make any comments and did not question him about the statement he made

concerning a juror holding out for twenty years. Additionally, Murphy stated in his affidavit

that he did not discuss the case with anyone and his wife never commented,

offered or suggested any opinion as to the outcome of the trial or what

punishment was appropriate. Murphy = s affidavit also

states that the phone call did not influence his verdict, that his verdict was

his own, and that he did not discuss the phone call with any other members of

the jury.

The State also presented an affidavit of

Rose Murphy, Juror Murphy = s wife, which attested to the same facts

concerning the telephone conversation.

She stated the conversation was solely about re-arranging their

schedules to accommodate her husband = s jury service, and, in response to her

questioning about whether it was really necessary, her husband responded that A because one juror

was holding out for 20 years and he and others wanted more time, he did not see

any way the jury could reach a decision by the end of the day. @ Mrs. Murphy also attested that she and her

husband never discussed any of the facts or issues of the case and that she

never offered any opinions or suggestions regarding the outcome.

By these affidavits, the State rebutted

the presumption of injury to appellant. See

Green v. State , 840 S.W.2d 394, 406 (Tex. Crim. App. 1992) (holding State

rebutted presumption by presenting affidavits of all twelve jurors, which

stated their individual verdicts were rendered solely on evidence presented and

no one discussed the improper conduct); Robinson , 851 S.W.2d at 230

(holding State rebutted presumption of harm because juror testified statement

from her sister would not have influenced her verdict and she did not tell the

other jurors about the prejudicial statement).

The affidavits established nothing prejudicial to appellant was said and

the conversation between Juror Murphy and Mrs. Murphy did not influence Juror

Murphy = s verdict in any

way. Additionally, the content of the

statement was never relayed to the other jurors. Because the State adequately rebutted the

presumption of injury, we hold the trial court did not abuse its discretion in

denying appellant = s motion for new trial. Accordingly, we overrule appellant = s fifth and sixth

issues.

Conclusion

Having overruled appellant = s six issues on

appeal, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment

rendered and Memorandum Opinion filed July 29, 2004.

Panel

consists of Justices Yates, Anderson, and Hudson.

Do

Not Publish C Tex.

R. App. P. 47.2(b).

[1] Appellant specifically challenges

the emphasized text on appeal.

[2] The reporter = s record for the third day of trial amounted to a

total of thirty-eight pages, of which the jury was present for thirty-two. In contrast, the jury was present for

approximately 373 pages of trial proceedings before the camera was allowed in

the courtroom.