TRACEY DLYNN JOHNSON v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Francis

Tracey Dlynn Johnson appeals his conviction for aggravated robbery with a deadly weapon.   After finding appellant guilty, the jury assessed punishment, enhanced with a prior conviction, at fifty years in prison.   In three issues, appellant claims he was denied his Sixth Amendment right of cross-examination, the trial court erred by allowing the State to call a witness knowing the witness would invoke his Fifth Amendment right not to testify, and both errors require reversal of his conviction.   We affirm.

Gregory Primus worked at Pitre Auto Sales when appellant and Edmond Mitchell stopped to look at a car.   Mitchell told Primus he was interested in a particular car and said they would return.   A few weeks later, they did return.   When Primus turned to get the keys to the car, the two men put guns to his head and ordered him to the ground.   They bound his hands and feet with duct tape, robbed him, and ransacked the office.   They fled but were later arrested for aggravated robbery.

Mitchell pleaded guilty and was sentenced to fifteen years in prison.   He agreed to testify against appellant but, on the day of appellant's trial, Mitchell's attorney informed the trial court Mitchell would likely not testify.   During trial, the State called Mitchell.   The prosecutor asked, “And, Mr. Mitchell, you remember meeting with Detective Maudlin and telling him that you and [appellant] were the two that committed the aggravated robbery at Pitre Auto Sales, correct?”   Mitchell replied, “Yes.” Appellant immediately objected to the question, asked for an instruction to disregard, and sought a mistrial.   The trial court sustained his objection and instructed the jury to disregard the question but denied the requested motion for mistrial.   Mitchell then refused to answer any further questions despite being ordered to do so by the trial court.   The jury found appellant guilty and sentenced him to fifty years in prison.

In his first two issues, appellant claims the trial court erred by allowing the State to call Mitchell to testify when it was evident he would invoke his right not to testify and appellant was denied his right to cross-examine Mitchell following the prosecutor's question.   In his third issue, appellant contends both constituted harmful, reversible constitutional errors.

Assuming without deciding the trial court erred, we must consider whether the errors require reversal of appellant's conviction.   See Tex.R.App. P. 44.2. Despite appellant's claim, the trial court's decision to allow the State to call Mitchell is a nonconstitutional error.   See Taylor v, State, 268 S.W.3d 571, 592 (Tex.Crim.App.2008) (error in admitting evidence is nonconstitutional error and reviewed under rule 44.2(b)).  Under this standard, we disregard any error that does not affect appellant's substantial rights.   See Tex.R.App. P. 44.2(b).  A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict.  Simpson v. State, 119 S.W.3d 262, 266 (Tex.Crim.App.2003).   In assessing the likelihood the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case.  Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App.2005).   We may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.  Id. at 518-19.   Additionally, the presence of overwhelming evidence of guilt plays a determinative role in this analysis.  Neal v. State, 256 S.W.3d 264, 285 (Tex.Crim.App.2008).

Appellant asserts the trial court erred by allowing the State to call Mitchell knowing he would invoke his right not to testify.   In its opening statement to the jury, the State indicated it would call Mitchell to testify.   By the time it did so, the jury had already heard Primus's testimony.   Primus, who has a photographic memory, had at least two “pretty extensive” dealings with appellant and Mitchell beginning with their first visit to Pitre Auto Sales in late August or early September 2007.   Mitchell talked to Primus about several BMWs, saying he liked the newer one and would return later.   When Mitchell and appellant returned a few weeks later, Primus recognized them and said, “Oh, so you're back.”   Primus said he easily identified Mitchell from the photographic lineup because he looked like one of Primus's former students.   In fact, Primus said Mitchell could have been his student's “twin brother because they looked so much alike.”   He described his memory of Mitchell's face being “like a photograph that was snapped in my mind ․ I didn't have to ponder as to who ․ it was automatic.”   When shown the second photo lineup, Primus recognized appellant's photo at least in part because appellant reminded Primus of a friend.   He also took a “snapshot of [appellant's] face” in his mind and, when he viewed the photo lineup, he definitely identified him.   Primus also identified appellant in court.   Likewise, the jury heard Detective Maudlin's testimony that he felt confident about Primus's level of certainty.

When Mitchell was called to the stand, he answered the State's question.   Appellant objected to his answer, the objection was sustained, and the jury was instructed to disregard.   Mitchell then invoked his Fifth Amendment right not to testify.   Although the State did not discuss Mitchell in its closing remarks, appellant did, arguing that the State made “promises in opening statements that they didn't comply with.   We didn't hear anything from Edmond Mitchell.”   In response, the State countered that it was a reasonable deduction that Mitchell did not want to “rat on his friend.”   In light of the strength of the State's case as well as the other factors, we conclude the error did not have a substantial and injurious effect or influence in determining the jury's verdict.

With respect to the denial of appellant's right to cross-examine Mitchell, we must determine beyond a reasonable doubt whether the error contributed to appellant's conviction.   See Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App.2010) (any Confrontation Clause error is of constitutional dimension and therefore subject to constitutional harm analysis).   When addressing the denial of a right to confront a witness, we consider (1) how important the witness or statement was to the State's case;  (2) whether the statement was cumulative of other evidence;  (3) the presence or absence of evidence corroborating or contradicting the statement on material points;  and (4) the overall strength of the prosecution's case.  Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App.2007).   We do not focus on the propriety of the outcome of the trial, but on the integrity of the process that led to conviction and punishment.  Id. Ultimately, after considering these various factors, we must be satisfied, to a level of confidence beyond a reasonable doubt, “that the error did not contribute to the conviction” before we may affirm the conviction.

After reviewing the entire record, we conclude the denial of appellant's Sixth Amendment right to cross-examine Mitchell did not contribute to appellant's conviction.   Mitchell's testimony was not necessary to the State and, as detailed above, was cumulative of other evidence, most notably the testimony of Primus who had a photographic memory and could recall both Mitchell's and appellant's faces.   Primus “most definitely” identified appellant in the photographic lineup and in court.   The police were confident in his identification.   Under these circumstances, we cannot conclude the error “moved the jury from a state of non-persuasion to one of persuasion.”   See Davis v. State, 203 S.W.3d 845, 853 (Tex.Crim.App.2006).   The denial of appellant's Sixth Amendment right to cross-examine Mitchell was harmless beyond a reasonable doubt.   See id. at 856.   We overrule appellant's three issues

We affirm the trial court's judgment.

MOLLY FRANCIS JUSTICE