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

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Donnie Ray Westbrook appeals his murder conviction, raising seven issues while the State presents a cross-issue regarding the exclusion of a witness. The appeal stems from a trial where Westbrook and Jerry Huff engaged in an argument that escalated into a physical confrontation, resulting in Huff's stabbing. Huff initially identified "Crippled Donnie," Westbrook's father, as the assailant, but later clarified that Westbrook was the perpetrator, identifying him in a photo lineup. Westbrook and his father contended that Westbrook only struck Huff with his hand. The State introduced testimony from Kelly Green, Westbrook's girlfriend, who recounted the father’s statement implicating Westbrook; despite Westbrook's hearsay objection, the court admitted the testimony for impeachment purposes. The jury ultimately convicted Westbrook, sentencing him to life imprisonment.

In his appeal, Westbrook contests the sufficiency of the evidence, claiming Huff's identification was too vague. The court clarifies that since a 2010 ruling, Texas appellate courts apply only the legal sufficiency standard established in Jackson v. Virginia, which requires a review of evidence in the light most favorable to the verdict. The court will not consider Westbrook's factual sufficiency argument independently, focusing solely on whether a rational trier of fact could find the crime's essential elements proven beyond a reasonable doubt.

A reviewing court does not act as a thirteenth juror and cannot replace the fact finder's judgment by reassessing the evidence's weight and credibility. It defers to the fact finder's resolution of conflicting evidence unless that resolution is irrational given the burden of proof. The court's role is to confirm that the evidence supports the conclusion that the defendant committed the crime, using a hypothetically correct jury charge as the standard for evaluating evidence sufficiency. For a murder conviction, the State needed to demonstrate that the Appellant intentionally or knowingly caused the victim’s death or acted with intent to cause serious bodily injury in a manner dangerous to human life. 

In this case, the victim, Huff, initially identified Appellant’s father as his assailant but later clarified that "Crippled Donnie," the father’s nickname, referred to Appellant. After being presented with Appellant's father, Huff identified the Appellant as the one who stabbed him, which, along with the nature of his injuries, provided a rational basis for the jury to conclude that Appellant was guilty. Although there was conflicting testimony from Appellant and his father, claiming that Appellant only punched Huff, the jury's decision to believe Huff's identification over the defense's account was reasonable. 

The court found sufficient evidence for a rational jury to conclude that the State proved every element of the offense beyond a reasonable doubt, overruling Appellant's first issue. Regarding Appellant's second issue, he contended that the trial court erred by allowing the State to call a witness, Kelly Green, due to a lack of timely notice.

In 1999, the 392nd District Court established a "Standing Criminal Discovery Order" requiring the State to disclose the names of all witnesses within its "possession, custody, and control" to a defendant's counsel fifteen days before a pretrial hearing, upon written request. The State failed to provide notice of witness Kelly Green until the day before the trial, violating this timeline. The trial court's decision to allow her testimony is reviewed under an abuse of discretion standard. There is no constitutional right to broad discovery in criminal cases, but defendants have the right to be informed of exculpatory evidence. The Texas Code of Criminal Procedure permits discovery of expert witnesses but does not require the disclosure of all witnesses.

To determine if the trial court abused its discretion in allowing an undisclosed witness to testify, the factors considered include whether the State acted in bad faith and whether the defendant could reasonably anticipate the witness's testimony. A lack of bad faith can justify allowing the testimony. The assessment of bad faith involves evaluating whether the State intended to deceive the defendant, provided adequate preparation time, and maintained transparency through practices such as an open file policy. The anticipation of a witness's testimony considers the surprise's impact on the defendant and the court's ability to address that surprise.

The appellant did not claim that the State acted in bad faith or that he was unprepared for Green's testimony, instead asserting that her testimony was significantly damaging. The State indicated that Green's identity was only recently revealed to them, and the court accepted this as a demonstration of good faith.

Appellant’s counsel was aware of witness Green, who had previously brought Appellant to the office. The State provided adequate pretrial disclosure regarding its witnesses and evidence, including Green's expected testimony. Appellant did not claim bad faith on the State's part, insufficient preparation time, or surprise regarding Green's testimony, leading to the conclusion that the trial court did not abuse its discretion in allowing her to testify.

Appellant contended that Green's testimony about statements made by Donnie Dixson, Sr. constituted hearsay and was improperly admitted as impeachment evidence. The admissibility of evidence over a hearsay objection is reviewed for abuse of discretion, and hearsay is defined as a statement not made by the declarant during testimony, offered to prove the truth of the matter asserted. However, witnesses may be questioned about prior inconsistent statements.

Appellant objected to eight specific statements made by Dixson, which included claims about Appellant's actions during an incident with Mr. Huff. These statements, except for two, contradicted Dixson's trial testimony, thereby providing grounds for impeachment. Appellant argued that the State called Dixson solely to introduce these impeachment statements, which would violate rules against impeaching one’s own witness for the purpose of introducing prior statements. The admissibility of such impeachment evidence is assessed under a Texas Rule of Evidence 403 balancing test.

The case presents a close question regarding the admissibility of the impeachment evidence, particularly since the State did not elicit favorable testimony from Dixson and was not surprised by his hostile stance.

The State had valid reasons to call Dixson as a witness despite anticipating that his testimony would not align with their theory of the case. Dixson was the only eyewitness available, and his testimony confirmed that an altercation occurred between Huff and Appellant, establishing Appellant's presence. Additionally, Dixson stated he never saw a weapon in Huff’s hand, which undermined any claims of self-defense or accidental death. The State's decision to call Dixson helped address potential jury questions regarding his absence, given that Huff had previously identified him as the assailant. The trial court's decision to allow impeachment evidence was deemed reasonable, as it highlighted the inconsistencies between Dixson's police statement and his testimony.

Regarding the photo lineup, Appellant's claim that the testimony of Huff’s identification of Appellant was improperly bolstered was overruled because Appellant did not object to the photo lineup during trial, thus waiving his right to contest it. 

Appellant also argued that the trial court erred by not instructing the jury on the limited use of impeachment evidence and his prior convictions, and by refusing to instruct on a lesser included offense of assault. However, Appellant failed to request a limiting instruction at relevant times during the trial, which was necessary for preserving the issue for appeal. While he cited cases suggesting a trial court should provide such instructions even without a request, the context of those cases indicated that a complaint had been preserved in those instances, unlike in Appellant's case.

Appellant did not request limiting instructions regarding his previous conviction or Kelly Green's testimony that impeached Donnie Dixson's testimony, resulting in the issue being unpreserved for appellate review. The court overruled Appellant's fifth issue. Appellant sought jury instructions on the lesser included offense of assault, claiming this was necessary based on his testimony indicating he struck Huff but was uncertain about the circumstances of Huff's injury. According to Article 36.14 of the Texas Code of Criminal Procedure, a trial court must provide a written charge that clearly outlines the law applicable to the case, including lesser included offense instructions if warranted. An offense qualifies as a lesser included offense if it meets specified criteria related to the proof required and the nature of the injury or mental state involved. The initial legal determination involves comparing the charged offense with the proposed lesser offense to identify overlapping elements. The second step assesses whether the evidence presented allows a rational jury to conclude that the defendant is guilty only of the lesser offense. In this case, assault qualifies as a lesser included offense of murder, as the charged murder involves an assault resulting in death. However, the evidence presented did not support the lesser charge since Appellant's admission of striking Huff did not align with the stabbing details that substantiated the murder charge. Thus, the court concluded that the proof required for the charged offense did not encompass the assault admitted by Appellant.

The defendant was on trial for drug possession and admitted to having various drugs. The court clarified that an indictment covering multiple actions does not automatically mean those actions are part of the same criminal act. The trial court correctly chose not to instruct the jury on a misdemeanor assault charge, as it was not encompassed by the evidence supporting the greater charge. 

Regarding the defendant's mental competency to stand trial, he escaped custody after the jury's verdict but returned voluntarily the next day. His attorney expressed concerns about his ability to comprehend the proceedings. The trial court held an informal inquiry, including testimony from the arresting officer, who reported that the defendant communicated effectively. The court found insufficient evidence to warrant a competency evaluation, considering the defendant's rational behavior during interactions and his prior attempts to feign mental illness for personal gain. Thus, the trial court's decision to proceed without further competency evaluation was upheld.

In a related matter, the State claimed error when the trial court excluded its handwriting expert from testifying, despite having provided notice of its expert witnesses twenty days before the trial.

The disclosure related to expert witnesses in a case did not include their areas of expertise or addresses, although Appellant's counsel may have known this information. The witnesses were handwriting analysis experts. Under Texas law, the state must provide the names and addresses of expert witnesses prior to trial as per Tex. Code Crim. Proc. Ann. art. 39.14. Additionally, a standing discovery order by the district court mandated disclosure of witnesses, but the defendant must request discovery, which Appellant failed to do. The State did not provide the defense with the expert's report, which was reportedly completed just before the trial began. The trial court excluded the expert witness due to concerns about the timing of the report's completion affecting the defense's preparation. The court acknowledged a "course of dealing" that justified Appellant's reliance on the State's prior disclosures. While the court's ruling on discovery is not commented on, it is noted that if the trial court found the State acted in bad faith, it would receive some deference.

The appellate court determined that the State did not preserve the complaint for review, citing procedural default principles that apply to both parties. Texas Rule of Evidence 103(a) requires a party to object to the exclusion of evidence and provide an offer of proof; failure to do so precludes the party from claiming error on appeal. The court noted that while the expert might have testified regarding Appellant’s authorship of a handwritten note, there was no offer of proof or outline of the expert's testimony. Therefore, the trial court's decisions regarding the timing of the report and preparation time were deemed reasonable. Furthermore, Appellant later admitted to writing the note, which negated any objection to the expert's testimony and remedied any potential error. The appellate court affirmed the trial court’s judgment, overruling both Appellant’s issues and the State’s cross-issue.

Appellant did not submit a written request for witnesses, yet the State did not contest its obligation to disclose witness Kelly Green or the trial court's authority to require disclosure of nonexpert witnesses. Appellant's counsel relied on the State’s compliance with the discovery order. Although Appellant testified, the State could not compel his testimony. Appellant contends that the trial court improperly allowed the State to use his confession to his father for impeachment purposes, but the court found that most statements cited were contradictions of witness Dixson's testimony, not confessions. Specifically, while Green claimed Dixson relayed that Appellant said he had thrown a knife in a lake, this assertion was not substantiated in the cited passages. Instead, Green’s conclusions seemed to stem from her own deductions rather than direct information from Dixson. The State referred to the discovery order as "nonexistent" but provided no clarification. Discovery issues were prevalent, with Appellant's counsel expressing concerns over inadequate notice regarding various witnesses and evidence. Although the State disclosed substantial evidence and witness information pretrial, significant elements, such as witness Kelly Green and a fingerprint report, emerged late, even during the trial. The trial court considered multiple factors regarding discovery rulings, acknowledging the need for fairness amid late disclosures, despite the State's argument that Appellant's lack of a discovery request diminished its obligations.