Jared Levi Williams v. State

Opinion issued May 10, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00407-CR

———————————

JARED LEVI

WILLIAMS, Appellant

V.

THE STATE

OF TEXAS, Appellee

On Appeal from the 155th District Court

Waller County, Texas

Trial Court Case No. 09-03-13182

MEMORANDUM OPINION

Jared

Levi Williams pleaded guilty to the offense of murder, and a jury assessed

punishment at ninety-nine years’ confinement and a $10,000 fine. [1] Williams raises three

issues on appeal, contending that the trial court erred by admitting unfairly

prejudicial evidence —specifically,

two autopsy photographs and a black ski mask— and by denying his request

for a new trial on the ground of jury-charge error. We affirm.

Background

One Sunday afternoon, Williams, seventeen-years old at the

time, armed himself with a sawed off shotgun, borrowed his mother’s car, drove

to a nearby video store, and shot and killed the store owner. Looking to rent

videos, Yusell Figueroa and her father pulled into

the store’s parking lot a short time later and observed a young man speed off in

a silver or light blue car. Not thinking much about the young man’s erratic

driving, Figueroa and her father entered the video store and shopped for a few

minutes before noticing the complainant’s body lying behind the store counter.

Figueroa called 911. Police officers responding to Figueroa’s call discovered

that the store’s money drawer was open and empty of cash. But not all items of

value had been removed from the crime scene; on the complainant’s body,

investigators found more than $500 in cash, several credit cards, and a gold

chain.

Williams returned home and confessed to his mother that he

shot someone. At his mother’s urging, Williams turned himself in to police not

more than one hour later. Sergeant Diaz, a Texas Ranger assisting local police

with the investigation of the complainant’s death, noticed that Williams had

been crying when he arrived at the police station. Williams consented to the

collection of forensic evidence from his person and clothing, including

gun-shot residue and blood samples. Police noted an injury to Williams’s right

hand and recovered a small amount of cash from his pocket that included twenty-eight

one-dollar bills, two five-dollar bills, and one ten dollar bill stained with his

blood. Williams’s mother also cooperated with the investigation, informing

police that they could recover the shotgun used to shoot the complainant from a

neighbor whom she asked to hold the gun out of fear Williams would take his own

life. She gave the police permission to search her car and Williams’s

bedroom.

Sergeant Diaz conducted the search of Williams’s bedroom. There,

he recovered the barrel and stock of the shotgun from Williams’s closet and a black

ski mask from near Williams’s bed. Sergeant Diaz testified that the crude manner

in which the shotgun was sawed off would cause injury to the person firing the

gun. This, he opined, might be the reason the police found Williams’s blood —and

not the complainant’s blood— on Williams’s clothing, on the money in his pocket, and in his mother’s

car. Sergeant Diaz further explained that the ski mask was handmade by cutting

holes for the eyes and mouth from a ski hat. He thought the mask might be “a

piece of evidence consistent with a robbery[ .]” Unlike

other items Williams had touched, however, the mask did not contain traces of blood,

hair, or other DNA. And no witness testified that Williams wore the ski mask.

Following the police investigation, Williams was indicted for

capital murder. The indictment alleged that Williams “intentionally or

knowingly cause[d] the death of [the complainant] by shooting [the complainant]

with a firearm . . . in the course of committing or attempting to commit the

offense of robbery of [the complainant].” Williams pleaded guilty to the

lesser-included offense of murder, and the indictment was amended to omit the

capital murder charge. Williams elected to have a jury assess his punishment.

Using a projection screen, the State presented the jury with

a video and numerous color photographs of the complainant’s body and the crime

scene. Dr. D. Phatak , an assistant medical examiner,

testified as to the cause of the complainant’s death: a fatal gun-shot wound to

the head. To support his testimony, Dr. Phatak relied

on numerous color photographs taken during the various stages of the autopsy,

including two photographs depicting the inside of the complainant’s skull and

brain. Williams objected to these two autopsy photographs and some of the crime

scene photographs in oral motions in limine , which

the trial court denied.

The jury also heard testimony about the complainant’s and

Williams’s backgrounds. While members of the complainant’s family testified that

the complainant was beloved and a hard working small business owner, members of

Williams’s family testified that Williams had suffered mental health and social

issues. Williams’s cousin explained that Williams had taken to “huffing” cans

of compressed air. And, in the months preceding the complainant’s death,

Williams’s mother discovered a suicide note in his bedroom. A court-appointed

psychiatrist diagnosed Williams as having a severe “depressive order,” which

was aggravated by his use of inhalants and might impair his thought process or

ability to control impulses.

After two full days of testimony, the trial court submitted

the case to the jury for its consideration. The court’s charge, however,

omitted statutorily-mandated instructions regarding the jury’s consideration of

a defendant’s parole-eligibility in non-capital murder cases. The error was

discovered when the jury asked a question about Williams’s eligibility for parole

during its deliberations. The trial court then submitted an amended charge

containing all of the statutorily-mandated instructions regarding parole,

including the instruction that the jury not consider Williams’s eligibility in

assessing punishment. The jury returned a verdict assessing the maximum

punishment available under the Penal Code: ninety-nine years’ confinement and a

$10,000 fine. Williams appealed.

Admission of Evidence

William’s

first two issues concern the admission of evidence. In his first issue,

Williams argues that the trial court erred by admitting two autopsy photographs —specifically,

the State’s exhibits 60 and 61 depicting the inside of the complainant’s skull

and brain— the probative

value of which were substantially outweighed by the danger of unfair prejudice.

In his second issue, Williams makes a similar argument regarding the black ski

mask, asserting that its admission was unfairly prejudicial because there was

no evidence he used the ski mask during the commission of the offense.

We review the trial court’s evidentiary

rulings for an abuse of discretion. See Schultze v. State , 177 S.W.3d 26, 40 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d ) (op. on reh’g ) (noting trial court’s broad discretion in

determining admissibility of evidence at punishment). A trial court abuses its

discretion when its ruling is arbitrary or unreasonable. State v. Mechler ,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). There is no abuse of

discretion if the trial court’s decision is within the “zone of reasonable

disagreement.” Bigon v. State , 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

I. Two autopsy photographs

To preserve the error alleged in his first issue regarding

the admission of the autopsy photographs, Williams was required to object in a

timely fashion, state the specific ground for his objection, and obtain an

adverse ruling by the trial court. See Tex. R. App. P. 33.1(a); Fuller

v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).

Before opening statements, Williams presented oral motions in limine to the trial court, objecting to the two autopsy

photographs at issue on the ground that the prejudicial effect of showing the

jury pictures of the complainant’s skull and brain, mutilated by autopsy

procedures, outweighed the photographs’ probative value. The trial court

determined that it would allow the autopsy photographs, and, when the State

published the photographs to the jury during direct examination of the medical

examiner, Williams did not renew his objection. [2]

Therefore, the ruling on the admissibility of the autopsy photographs was the trial

court’s denial of Williams’s oral motion in limine . A

motion in limine , however, preserves nothing for our review.

See Fuller , 253

S.W.3d at 232 . “For error to be preserved with regard to the subject of

a motion in limine ,

an objection must be made at the time the subject is raised during trial.” Id. By failing to make objections to the

autopsy photographs at the time they were published to the jury and testified

to by the medical examiner, Williams forfeited his right to complain on appeal.

We overrule his first issue.

II. The black ski mask

Unlike his first issue, Williams’s

second issue complaining about the admission of the black ski mask is preserved

for our review. [3] Williams argues that

“[t]he trial court erred in admitting [the ski mask] when there was no evidence

[he] had used the mask during the offense,” meaning the ski mask “had no

probative value apart from suggesting extraneous offenses.” Even assuming Williams

is correct, we will not reverse the trial court’s

judgment if the alleged error was harmless. Rule of Appellate Procedure 44.2(b)

provides that any error, other than constitutional error, not affecting a

defendant’s substantial rights must be disregarded. See Tex. R. App. P.

44.2(b); Sells v. State , 121 S.W.3d

748 , 764 n. 69 (Tex. Crim. App. 2003). Error, if any, in the admission of the

ski mask is non-constitutional error. See

Casey v. State , 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (applying

standard of review under rule 44.2(b) to erroneous admission of evidence); see also Walters v. State , 247 S.W.3d

204, 219 (Tex. Crim. App. 2007) (stating erroneous evidentiary ruling generally

constitutes non-constitutional error and is reviewed under rule 44.2(b)).

Williams’s substantial rights were affected if, after

reviewing the record as a whole, we conclude the error had a substantial and

injurious effect or influence on the outcome of the proceeding. Burnett v. State , 88

S.W.3d 633 , 637 & n.8 (Tex. Crim. App. 2002); King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

Stated conversely, Williams’s substantial rights were not affected by the

erroneous admission of the ski mask if we, after examining the record as a

whole, have fair assurance that the error did not influence the jury, or had

but a slight effect. McDonald

v. State , 179 S.W.3d 571, 578 (Tex. Crim. App. 2005); Motilla v. State , 78 S.W.3d 352, 355

(Tex. Crim. App. 2002).

In assessing harm, we examine the entire record and calculate,

as much as possible, the probable impact of the error upon the rest of the

evidence. Coble v.

State , 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). We consider,

among other relevant factors, the testimony or physical evidence admitted for

the fact finder’s consideration, the nature of the evidence supporting the

verdict, the character of the alleged error, and how the evidence might be

considered in connection with other evidence in the case. Haley v. State , 173 S.W.3d 510, 518

(Tex. Crim. App. 2005); Motilla ,

78 S.W.3d at 355 − 56.

After two days of testimony from eighteen witnesses, the jury

here assessed the maximum sentence permitted under the Penal Code: 99

years’ confinement and a $10,000 fine. See

Tex. Penal Code

Ann . § 12.32 (West 2011).

Before reaching that verdict, however, the jury heard testimony that the

complainant was shot in the head with an illegal firearm, a sawed off shotgun. The

jury was also presented with a crime-scene video and more than twenty properly admitted or unobjected -to photographs depicting the gruesome

circumstances of the complainant’s death. Members of the complainant’s family

testified about the impact of his death on their lives. The ski mask was but a

single piece of evidence in the State’s case for sentencing, and Williams’s

trial counsel took steps to minimize its evidentiary weight. During

cross-examination, trial counsel elicited testimony from the investigating

officers that the ski mask was not found alongside the discarded shotgun parts

in Williams’s closet, that the ski mask was not tested for DNA, that, unlike

many of the other items William’s touched on the day of the complainant’s

death, the ski mask was not soiled with blood, and that no one had seen Williams

wearing the mask. Trial counsel also asked Figueroa whether the young man she

saw speed away from the video store parking lot was wearing a mask; she

answered in the negative. In closing arguments, trial counsel again addressed

the ski mask, pointing out the lack of evidence of its use during the

commission of the offense and urging the jury not to consider the ski mask in

assessing punishment. At no point during the trial did the State dwell upon or

emphasize the ski mask; in fact, the State did not mention the ski mask once

during its closing argument. After examining the record as a whole, we have a

fair assurance that the alleged error did not influence the jury, or had but a

slight effect. See Motilla ,

78 S.W.3d at 355 . We therefore hold that any error in

admitting the ski mask was harmless, and we overrule Williams’s second issue. See Tex.

R. App. P. 44.2(b).

Charge Error

It is undisputed that the charge

initially given to the jury in this case was inaccurate. Section 4(a) of

article 37.07 of the Code of Criminal Procedure required the trial court to

instruct the jury on parole eligibility as follows:

Under the law applicable in this case, the defendant, if

sentenced to a term of imprisonment, may earn time off the period of

incarceration imposed through the award of good conduct time. Prison

authorities may award good conduct time to a prisoner who exhibits good

behavior, diligence in carrying out prison work assignments, and attempts at

rehabilitation. If a prisoner engages in misconduct, prison authorities may

also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the

defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is

sentenced to a term of imprisonment, he will not become eligible for parole

until the actual time served equals one-half of the sentence imposed or 30

years, whichever is less, without consideration of any good conduct time he may

earn. If the defendant is sentenced to a term of less than four years, he must

serve at least two years before he is eligible for parole. Eligibility for

parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and

good conduct time might be applied to this defendant if he is sentenced to a

term of imprisonment, because the application of these laws will depend on

decisions made by prison and parole authorities.

You may consider the existence of the parole law and good

conduct time. However, you are not to consider the extent to which good conduct

time may be awarded to or forfeited by this particular defendant. You are not

to consider the manner in which the parole law may be applied to this

particular defendant.

Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (West 2011). The charge,

however, omitted the last two paragraphs of section 4(a). Neither party noticed

or objected to the omission of the statutorily-mandated language prior to the

jury’s deliberations—the error was discovered only when the jury asked a

question about Williams’s eligibility for parole. Before the jury reached a

verdict, the trial court interrupted deliberations, retrieved the original

charge from the jury, submitted an amended charge containing all of the section

4(a) language, and instructed the jury to continue deliberating. Neither party

objected to the amended charge. In his third issue, Williams argues the

omission of the statutorily-mandated language was egregiously-harmful error

because it caused the jury to consider the effect of parole in its assessment

of punishment. We disagree.

“Article 36.16 of the Texas Code of

Criminal Procedure has been interpreted to permit a trial court to withdraw and

correct its charge if convinced an erroneous charge has been given.” Smith v. State , 898 S.W.2d 838, 854

(Tex. Crim. App. 1995); see also Bustillos v. State , 464 S.W.2d 118 , 125 − 26 (Tex. Crim. App. 1964) (“In

light of the purpose of [art. 36.16] the court may before verdict withdraw and

correct its charge if convinced an erroneous charge has been given.”).

The trial court corrected the charge error in accordance with section 4(a)’s

mandate. And the amended language was favorable to Williams in its instruction

that the jury not “consider the manner in which the parole law may be applied

to [Williams]”; the original charge did not include any prohibition against the

jury’s consideration of Williams’s parole eligibility. We therefore perceive no

error, and we overrule Williams’s third issue.

Conclusion

Having overruled each of

Williams’s issues on appeal, we affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

Do

not publish. Tex. R.

App. P. 47.2( b).

[1] See

Tex. Penal Code

Ann . § 19.02 (West 2011).

[2]

We note that, although the

autopsy photographs were published to the jury during the medical examiner’s

testimony, we cannot find any place in the record where the trial court

actually admitted the exhibits. This is of no consequence to our determination

that Williams’s waived his right to complain about the prejudicial effect of

the photographs by failing to object at the time they were published to the

jury.

[3]

Although he made his objection to the admissibility of the ski mask during

the presentation of his motions in limine , Williams

renewed his objection when the State offered the ski mask at trial.