Scott v. State

555 S.W.3d 116

Gregory SCOTT, Appellant

v.The STATE of Texas, Appellee

NO. 01-16-00933-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 8, 2018

Discretionary Review Refused September 12, 2018

Danny K. Easterling, EASTERLING & EASTERLING, P.C., 1018 Preston, 6^th Floor, Houston, TX 77002, for Appellant.

Kim Ogg, District Attorney—Harris County, 1201 Franklin, Suite 600, Houston, TX 77002, Chris Conrad, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.

Panel consists of Justices Jennings, Keyes, and Higley.

Evelyn V. Keyes, Justice

A jury convicted appellant, Gregory Scott, of the first-degree felony offense of aggravated robbery and, after finding the allegations in two enhancement paragraphs true, assessed his punishment at sixty-five years' confinement.¹ In two issues, appellant contends that the trial court erroneously (1) gave an unconstitutional explanation of "beyond a reasonable doubt" during voir dire; and (2) allowed a bailiff to testify during the punishment phase about appellant’s absence from a portion of the guilt-innocence phase and the punishment phase.

We affirm.

Background

A. Factual Background

Marc Hill, the complainant, owned and operated a laundromat in north Houston. Hill kept three chairs outside in front of the building where customers could sit while waiting for their laundry. On the afternoon of August 13, 2013, Hill was sitting in one of the chairs with his aunt, who was sitting in another chair, and his cousin, who was sitting on top of a bucket near the chairs. One chair remained unoccupied.

After a while, appellant approached on foot and sat down in the remaining chair. Appellant, Hill, and Hill’s family members engaged in small talk about the weather, and then appellant asked if the laundromat had a restroom inside. Hill responded that it did, and he gave appellant directions to the restroom. Nothing about this conversation or appellant’s behavior seemed unusual to Hill.

A couple of minutes after appellant went inside the laundromat, two more men walked up to the laundromat from around the corner of the building. One of the men stopped in the doorway before turning around and pointing a pistol at Hill. The other man pointed a gun at Hill’s relatives. The men told Hill and his relatives to get up and not to run away. The men led Hill inside the laundromat where he saw all of his customers lying on the floor while appellant held them at gunpoint. Appellant took purses, cell phones, and car keys from the customers. One of the men forced Hill to give him all of the change from the laundromat, and the man also took money from Hill’s pocket.

The three robbers left the laundromat after another customer arrived. Hill grabbed his gun from his office and ran after the men. One of the men shot at Hill, who ducked around the corner of the building. When Hill looked back at the men, all three of the robbers started shooting at him. Hill fired back with his own gun, and he then heard a car quickly leave the area. Shortly after the men left, Hill was able to retrieve some of the customers' belongings from where they had been discarded further down the street.

Yvonne Brown, who lived near the laundromat, noticed a car that was parked on the street but facing the wrong direction. She "didn't think too much of it," but then she heard gunshots. She looked out her window and saw three men: one driving the car and the other two, who had guns, running to get into the car. The car then sped away from the area. Brown was not able to identify any of these men.

Christopher Howard, who was working as a mechanic at a shop near the laundromat, heard multiple gunshots. Once the shooting was over, he looked outside and saw a car driving by. Howard testified:

The car that was driving by had three people in it, two people in the front seat and one person was jumped (sic) over the front seat driver and passenger with his legs hanging out the driver’s side door so they couldn't get the door shut; and there was blood all over the bottom of the car.

Howard saw Hill, who was holding a gun, put his gun in a bag, walk out into the street, and pick up a purse before walking back to the laundromat. Howard did not identify any of the men in the car.

Harris County Sheriff’s Office (HCSO) Deputy T. Bissell was driving in the area when he saw a car that had several bullet holes pass him and pull into a shopping center. When the car turned, Deputy Bissell saw blood "all over the driver’s side door," and he contacted dispatch, asking if there had been reports of any shoot-outs in the area. Instead of turning in the direction of a nearby hospital, the car turned into a neighborhood. When the driver of the car saw Deputy Bissell, who was driving a marked HCSO truck, the driver sped towards a residence and parked. The driver and one of the passengers—appellant—ran up to the house and started banging on the door, yelling for the residents to come outside. Deputy Bissell tried to speak with the men to determine if someone in the car needed medical assistance, but both of the men ran off. Deputy Bissell was unable to apprehend either of the men, and when he returned to the car, he discovered that the third man in the car, Ronald Sanders, was deceased.

Houston Police Department officers processed the car for evidence. Officers found handguns lying on the floorboards of the driver’s seat and the front passenger seat. Officers also found multiple cell phones and cell phone cases, rolls of quarters and loose quarters, a shirt, and a syringe. Appellant could not be excluded as a major contributor to a DNA mixture found on one of the handguns. Appellant also could not be excluded as a contributor to the DNA profile found on a cell phone case, a syringe, a spoon, and a t-shirt. Firearms analysis revealed that a projectile recovered from the scene of the shooting at the laundromat was fired from the handgun that had appellant’s DNA.

B. Trial Proceedings

During voir dire, the trial court addressed topics such as the presumption of innocence and the burden of proof. The trial court made the following statements:

[T]he burden of proof in all criminal cases rests with the State and never shifts to the defense. The defense does not have to prove his innocence. Why? Because he is presumed by law to be innocent. The State has to prove guilt beyond a reasonable doubt. The law does not define reasonable doubt anymore. It is what you determine after hearing all of the evidence.

Reasonable doubt is, however, not meant to mean beyond all doubt or beyond a shadow of a doubt or what you may have heard on some of the television shows. The only way anyone could probably be convinced of something beyond all doubt or beyond a shadow of a doubt is if you were actually there and witnessed the event. And in that case, you would be waiting to be called as a witness and not as a juror.

Defense counsel did not object to this explanation of "beyond a reasonable doubt."²

The trial court’s charge included the following instructions:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.... The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all reasonable doubt concerning the defendant’s guilt.

In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict "Not Guilty."

After the State rested its case in chief, on a Friday afternoon, the trial court recessed the proceedings for lunch. Appellant was present at that time. At the end of the lunch recess, appellant did not appear in the courtroom, and defense counsel stated that he had not been able to find appellant in the courthouse. The trial court held a hearing outside the presence of the jury to determine whether appellant’s absence was voluntary, and two deputies testified concerning their efforts to locate appellant in the courthouse. The trial court granted defense counsel’s request to recess the case until Monday morning.

When proceedings resumed on Monday morning, appellant did not appear. Defense counsel informed the court that he had been unable to contact appellant and, thus, he did not know why appellant had not appeared. The trial court denied defense counsel’s motion for a further continuance and determined that it would proceed in appellant’s absence.

Defense counsel rested his case in the presence of the jury. After hearing closing arguments, the jury found appellant guilty of aggravated robbery.

After a brief recess, the punishment phase began and appellant still did not appear. At the beginning of this phase, the trial court stated, "For your information, ladies and gentlemen of the jury, the defendant left Friday at 1:05 p.m., and he did not return. The law allows him to be sentenced in absentia. We're now going to proceed with the punishment phase of the trial."

On appellant’s behalf, defense counsel entered a plea of "not true" to the allegations in two enhancement paragraphs. The State introduced evidence that appellant had two prior convictions. The State also called Deputy Banks, a bailiff for the 245th District Court who had been helping out in the trial court. Deputy Banks testified that appellant left the courtroom on the Friday before and did not come back. Deputy Banks testified that she looked for a...