Donnie Ray Westbrook v. State

Citation: Not availableDocket: 12-09-00381-CR

Court: Court of Appeals of Texas; February 27, 2011; Texas; State Appellate Court

Original Court Document: View Document

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Donnie Ray Westbrook appeals his murder conviction, raising seven issues, while the State contends the trial court wrongly excluded one of its witnesses. The appellate court affirmed the conviction. 

During the trial, evidence showed that Westbrook engaged in a heated argument with Jerry Huff outside his father's home, which escalated into a physical confrontation resulting in Huff being stabbed. Huff identified "Crippled Donnie" as the assailant; however, he later confirmed that it was Westbrook, his son, who stabbed him after initially being confused due to the father's nickname. Following the stabbing, Huff died from complications related to the wound. Testimony from Kelly Green, Westbrook's ex-girlfriend, indicated that Westbrook's father claimed his son had used a knife during the altercation. Westbrook objected to this hearsay testimony, but the court permitted it for impeachment purposes. The jury ultimately convicted Westbrook of murder and sentenced him to life imprisonment.

In his appeal, Westbrook argues the evidence, particularly Huff's identification, is insufficient to support the jury's verdict. The Texas appellate courts previously distinguished between legal and factual sufficiency of evidence, but a 2010 ruling established that only the legal sufficiency standard from Jackson v. Virginia should be applied in reviewing criminal cases.

Appellant's argument regarding the factual insufficiency of the evidence to support the verdict will not be independently considered. The review of evidence sufficiency requires viewing all evidence favorably to the verdict, determining whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. A reviewing court does not act as a thirteenth juror and cannot reassess the weight or credibility of the evidence. Instead, it defers to the fact finder's resolution of conflicting evidence unless that resolution is irrational given the burden of proof. The court's duty is to confirm that the evidence supports the conclusion that the defendant committed the crime, measured against a hypothetically correct jury charge that accurately reflects the law and the indictment.

To uphold Appellant's murder conviction, the State needed to prove that he intentionally or knowingly caused the victim Huff's death or that he intended to cause serious bodily injury through an act dangerous to human life. Evidence indicated that Huff initially identified "Donnie Dixson" as his assailant, which could refer to either Appellant or his father. However, after clarification, Huff identified "Crippled Donnie," the nickname for Appellant's father, but later asserted that it was Appellant who stabbed him. This was corroborated by Huff's identification in a police photo lineup. Given this evidence and the nature of Huff's injuries, a rational jury could conclude that Appellant was responsible for Huff's death, supporting the jury's verdict.

Evidence contrary to the verdict includes testimonies from Appellant and Donnie Dixson, both stating that Appellant only punched Huff. Appellant clarified he attempted to punch Huff, who evaded, resulting in a mere bruise, and denied stabbing him. The jury's assessment of the factual disputes was reasonable, leading to the conclusion that the State sufficiently proved each essential element of the offense beyond a reasonable doubt; thus, Appellant's first issue is overruled.

In addressing the second issue, Appellant contends the trial court erred by allowing the State to call Kelly Green as a witness, arguing that the State failed to provide timely notice of her testimony. A 'Standing Criminal Discovery Order' from 1999 mandates the State to disclose witness names within its control fifteen days before the Pre-Trial Hearing if a written request is made by the defendant. Appellant did not submit such a request, and the State did not contest its obligation to disclose Green as a witness. Appellant's counsel relied on the State’s compliance with the discovery order.

The trial court's decision to permit a witness to testify without proper disclosure is reviewed for abuse of discretion. There is no constitutional right to discovery in criminal cases, and while the Due Process Clause requires disclosure of exculpatory evidence, it does not mandate the disclosure of witnesses who may testify against the defendant. The code of criminal procedure allows for the discovery of expert witnesses but does not require general witness disclosure.

The determination of whether the trial court abused its discretion in permitting the testimony of an unlisted witness hinges on two critical factors: the state's bad faith in failing to disclose the witness's name and the defendant's ability to reasonably anticipate the witness's testimony. A lack of bad faith from the state can justify the trial court's decision to allow the testimony. To assess bad faith, key considerations include whether the state intended to deceive the defendant, whether the defendant had adequate time to prepare, and whether the state maintained an open file policy and updated witness lists. The defense's anticipation of the witness's testimony is evaluated based on the level of surprise, the disadvantage from that surprise, and the trial court's ability to mitigate it.

In the case at hand, the appellant did not argue bad faith or lack of anticipation regarding the witness, Green. Instead, he contended that her testimony was detrimental. The court accepted the state's assertion that it only recently became aware of Green as a witness and noted that the appellant's counsel had prior knowledge of her. Given the significant pretrial disclosures made by the state, the court concluded that the witness was known to the defense, and the state acted in good faith by disclosing her as soon as it could. Therefore, the trial court did not abuse its discretion in allowing Green to testify.

Regarding the appellant's argument that Green's testimony about a conversation with Donnie Dixson, Sr. was hearsay and improper for impeachment purposes, the court reviews such evidentiary decisions for abuse of discretion. Hearsay is defined as a statement not made by the declarant while testifying, used to prove the truth of the matter asserted. However, a witness may be questioned about prior inconsistent statements. The trial court's rulings on these matters will not be disturbed unless they fall outside reasonable disagreement.

The appellant contends that the trial court improperly permitted Green to testify about eight statements made by Donnie Dixson, Sr., which included allegations that the appellant engaged in an altercation with Mr. Huff, retrieved a butcher knife, and subsequently fled into the woods. The key points of contention are that these statements contradict Dixson's prior testimony, except for the assertion that Huff instigated the argument. The appellant maintains that the State called Dixson merely to introduce impeachment evidence, which is impermissible under Texas law if the primary purpose of calling the witness is to present prior statements. The relevant legal precedent establishes that impeachment evidence should be excluded if it is clear that the witness was called solely for that purpose, unless the testimony is unexpected.

In this case, the trial court's decision to allow the impeachment was justified because the State had legitimate reasons for calling Dixson. He was the only eyewitness available besides the appellant and provided essential testimony about the altercation between the appellant and Huff, establishing the presence of the appellant. Additionally, Dixson's testimony that he did not see a weapon in Huff's hand was crucial in refuting self-defense claims. Although the State likely anticipated Dixson's unhelpful testimony, it was reasonable to call him to avoid juror confusion about his absence, given Huff's prior identification of him as the assailant. The trial court's ruling was not an abuse of discretion, leading to the overruling of the appellant’s third issue.

Appellant contends that the trial court erred by allowing an officer to testify about Huff identifying him in a photo lineup as the person who stabbed him, arguing it improperly bolstered Huff's testimony. However, Appellant did not object to the photo lineup during the trial, and his counsel explicitly stated “no objection” after a voir dire examination of the officer, resulting in a waiver of this issue. 

Regarding jury instructions, Appellant claims the trial court failed to instruct the jury that impeachment evidence from Kelly Green and his prior convictions should only be considered for impeachment and not as substantive evidence. He also argues the trial court erred by refusing to instruct the jury on the lesser included offense of assault. However, he did not request a limiting instruction when the evidence was presented, nor did he raise the issue during the charge conference. Citing case law, Appellant suggests that a trial court is required to provide a limiting instruction even if not requested; however, the cited cases indicate that this requirement does not apply if the issue was not preserved through a request. Consequently, Appellant’s failure to request a limiting instruction on both his prior conviction and Green's testimony results in the issue not being preserved for review.

Finally, regarding the lesser included offense, Appellant's request was based on his testimony of hitting Huff, asserting that the instruction was warranted due to the ambiguity surrounding how Huff was injured.

Article 36.14 of the Texas Code of Criminal Procedure mandates that the trial court provide the jury with a written charge that clearly states the applicable law for the case. A trial court is required to include a lesser included offense instruction in the jury charge if requested by the defendant, provided there is evidence suggesting that, if guilty, the defendant is only guilty of the lesser offense. A lesser included offense is defined as one that can be proven with the same or fewer facts than those needed to establish the charged offense, involves a less serious injury or risk, requires a less culpable mental state, or consists of an attempt to commit the charged offense.

Determining whether an offense qualifies as a lesser included offense is a legal question that involves comparing the elements of the charged offense with those of the proposed lesser offense, independent of trial evidence. Following this, the court assesses if the evidence presented could allow a jury to find the defendant guilty solely of the lesser offense.

The court acknowledges that assault can be a lesser included offense of murder, particularly when the murder charge stems from an assault that resulted in death. However, in this case, the assault admitted by the Appellant (striking the victim) does not constitute proof of the charged offense (stabbing the victim). The precedent set in Campbell v. State is referenced, where the court clarified that not all conduct covered by an indictment is part of the same criminal act. Consequently, the trial court correctly decided against instructing the jury on the misdemeanor assault charge, as the evidence necessary to establish assault was not part of the proof required for the murder charge.

Additionally, the Appellant raises a seventh issue regarding the trial court’s failure to order a mental competency evaluation after he escaped from custody during the trial.

A defendant is deemed incompetent to stand trial if he lacks the ability to consult with counsel or does not have a rational understanding of the proceedings. Competency is presumed, and if competency is questioned, the trial court must conduct an informal inquiry to find any supporting evidence. If evidence indicates incompetency, the court must stay proceedings and order further evaluation. The trial court's decision not to stay is reviewed for abuse of discretion.

In this case, after a jury verdict, the defendant escaped custody but returned voluntarily the next day. His counsel expressed concerns about his competence, prompting an informal hearing. Testimony from the arresting officer indicated the defendant communicated effectively, contradicting claims of incompetency. The trial court found insufficient evidence to warrant further examination and proceeded with sentencing.

Additionally, the State contended that the trial court improperly excluded its handwriting expert from testifying. The State had notified the defense of the expert witnesses but did not provide specific details required by Texas law, as the defendant did not request additional discovery. The expert’s report was completed shortly before trial, leading to the court's decision to exclude the testimony. The trial court's actions regarding both competency and evidence admission were upheld.

The trial court was concerned that a report, completed a week into the trial, hindered the defense's preparation. It excused the failure to request discovery based on a 'course of dealing' between the State and defense, crediting Appellant's reliance on the State's voluntary disclosures. No opinion was expressed on the trial court's discovery ruling, but any finding of the State's bad faith in delaying forensic work would receive deference. The State failed to preserve its complaint for review due to procedural default principles; specifically, it did not object to the exclusion of evidence nor provide an offer of proof, which is required under Texas Rule of Evidence 103(a). Although there was speculation about the expert's potential testimony regarding a handwritten note, no details were provided to assess the trial court's decisions on the timing of evidence disclosure. The State had made substantial pretrial disclosures, yet certain evidence, particularly concerning witness Kelly Green and a fingerprint report, emerged late. The trial court acknowledged the need for fairness regarding late disclosures but did not rule out alternative approaches to present the evidence. Appellant later testified and admitted to writing the note, effectively nullifying his objection to the expert testimony and curing any potential error. The court overruled all of Appellant's issues and the State's cross-issue, affirming the trial court's judgment.