Opinion issued November 6, 2014




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-13-00845-CR
                        ———————————
                   DEAN JEROME WOOD, Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 176th District Court
                         Harris County, Texas
                     Trial Court Case No. 1285552


                       MEMORANDUM OPINION

     A jury found appellant, Dean Jerome Wood, guilty of first-degree felony

murder, and the trial court assessed his punishment at ninety-two years’
confinement. 1 In his sole point of error, appellant argues that the trial court abused

its discretion by admitting portions of his interrogation by Detective C.

Abbondandolo and allowing the detective to testify about the interrogation.

      We affirm.

                                    Background

      The complainant, Flora Ryan, moved to Houston in 2000, after having been

diagnosed with Alzheimer’s, to live with her daughter, Mary Ostlund, and her

granddaughter, Julie Ramirez. Ryan, who was ninety-two years old in 2010, had a

number of medical problems, including diabetes, thyroid problems, and cataracts.

Because of Ryan’s condition, she could not be left alone. For Ryan’s safety,

Ostlund installed special locks on the apartment that required a key to unlock from

both the inside and outside.

      From the time that Ryan moved to Houston in 2000 until May 2010,

Ramirez was Ryan’s primary caretaker. In May 2010, Ramirez gave birth to a

baby boy and needed assistance taking care of Ryan.           In 2010, Ostlund met

appellant while she was working at the Salvation Army. Appellant subsequently

moved into the apartment to help with Ryan’s care. He slept on a loveseat in the




1
      See TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon Supp. 2013) (providing
      elements of offense of felony murder); id. § 19.02(c) (providing that offense is
      first degree felony).

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apartment right next to the couch on which Ryan slept, and he helped care for

Ryan by helping her get around and by making her food.

      On August 20, 2010, Ostlund went to work and Ryan stayed at the apartment

with Ramirez and appellant.     At some point during the day, Ramirez asked

appellant to go to the store to get her cigarettes; he returned with beer and

cigarettes, as well as a bottle of Steel Reserve malt liquor for himself. Ramirez

then left the apartment with her baby to visit her neighbor and locked the

apartment door when she exited, locking both Ryan and appellant inside the

apartment. When Ramirez returned to her apartment, she noticed that Ryan was no

longer on the couch, so she checked the bathroom. Ramirez testified that she

found Ryan lying flat in the shower, naked, with the showerhead aimed at her

mouth. Ramirez turned the water off and sat Ryan up before calling an ambulance.

Ramirez told the 911 operator to bring the cops because she felt “something just

wasn’t right.”

      While Ramirez was on the phone with 911 and helping Ryan, appellant was

on the porch smoking a cigarette. Ramirez testified that appellant had changed

clothes and was then wearing a different pair of shorts than the pair he had been

wearing when Ramirez left the apartment earlier. When Ramirez asked appellant

to help lift Ryan out of the bathtub, he calmly stated: “grandma’s dead.” When the




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paramedics arrived, Ramirez testified that appellant was being loud and “talking

crap to the ambulance people and the cop that was there.”

      Officer Smith, a police officer who reported to the scene, testified that

appellant was behaving in an erratic and violent manner. He and the other officers

detained appellant because they were worried he might hurt someone.

      Ryan’s autopsy revealed a lot of bruising, mostly concentrated on her face,

head, forearms, and wrists. Dr. Chu, the medical examiner, testified that Ryan’s

bruising was not consistent with a fall; rather, it was consistent with her head being

hit with a blunt object “at least four [times], four impacts, and quite likely many

more than that.” In addition to the bruising, Ryan had a fractured toe and ribs and

vaginal lacerations that were likely caused by “some kind of blunt trauma,

penetrating trauma to the vagina.” Dr. Chu concluded that the cause of Ryan’s

death was “blunt force injuries with cutaneous contusions, or bruising of the skin,

and vaginal lacerations.” The State also presented DNA evidence. Ryan’s DNA

was found on the inside of the shorts appellant had been wearing. Ryan’s and

appellant’s DNA was found on beer bottles collected at the scene.

      At trial, the State called Detective C. Abbondandolo, a homicide detective

with the Houston Police Department, to testify regarding his interview of appellant

in connection with Ryan’s murder. Prior to Detective Abbondandolo’s taking the

stand, appellant objected to any testimony the detective might offer regarding his



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ability to tell whether a suspect was telling the truth. Appellant specifically argued

that Detective Abbondandolo’s assertions that he did not believe appellant’s

statements during his interrogation should not be admitted “because it invades the

province of the jury. They jury can look at [appellant’s] behavior on that video

and they can decide whether or not they think he’s telling the truth. They don’t

need Officer Abbondandolo to tell ‘em.” The trial court overruled appellant’s

objection, stating, “I believe that if the State lays the foundation about his training

and experience and identifying truth telling or not, that the jury can . . . consider

it . . . since he’s an expert when they decide to evaluate the witness and his or the

defendant’s behavior on the video tape.”        Appellant sought, and obtained, a

running objection to any testimony regarding Detective Abbondandolo’s beliefs

regarding appellant’s truthfulness during his interrogation.

      Detective Abbondandolo first testified about the “interviewing style” he

used to question suspects:

      What I like to do is talk to folks that are potential suspects for a while
      before I actually talk to them about the crime itself, to try to determine
      a little bit about them, to see how they answer questions that are not
      related to something that’s terribly stressful but something that’s
      related to something that they should be able to answer easily. That
      way I can establish a baseline for their physical behavior to pick up on
      points of deception when we get to the more difficult parts of the
      interview.

      Appellant interrupted to clarify that he had a running objection to

Abbondandolo’s testimony, and the trial court agreed. Detective Abbondandolo


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went on to testify generally about the “points of deception” he looked for when

interviewing a suspect:

      Little subtle physical things that happen in the body when someone is
      trying to mask the truth. The stress level seems to get elevated, and
      during those times their body makes movements that they can’t
      control. Even though they’re trying to deceive you in what they’re
      saying, there are things that the body does that makes it quite apparent
      that they’re not being honest.

He described these involuntary movements as including “the twitching of the eyes,

perhaps a tear that fall out unexpectedly, a licking of lips, looking in a certain

direction when you talk to them.” He emphasized that every person is different.

      Detective Abbondandolo then testified regarding his interview of appellant

and described the procedures he used, such as setting up recording equipment and

reading appellant his Miranda warnings. Detective Abbondandolo testified that,

contrary to his usual procedure, he did not remove appellant’s handcuffs during the

interview.   He believed, based on appellant’s facial expressions and physical

behavior, that everyone would be safer if appellant remained handcuffed.

      The State then sought to admit the video recording of appellant’s

interrogation that was conducted by Detective Abbondandolo on the day following

Ryan’s death. Appellant raised objections to various statements made by Detective

Abbdondandolo in the video recording, such as his statements to appellant, “I don’t

think you’re telling me the exact truth,” “I don’t think that you’re being honest

with me,” and “[Y]our explanation doesn’t match the physical evidence that’s


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there, doesn’t match what Julie’s saying.” Appellant argued that these statements

were hearsay and that they invaded the province of the jury. The trial court

overruled these objections and admitted the video recording of appellant’s

interview.

      In the video, Detective Abbondandolo questioned appellant about the events

leading up to Ryan’s death.       Appellant stated repeatedly that he could not

remember much about what happened to Ryan because he had “blacked out” after

drinking a large quantity of alcohol.        Appellant repeatedly told Detective

Abbondandolo that he found Ryan not breathing on the sofa and attempted to

perform CPR. Appellant did not recall how Ryan got in the bathtub, he did not

recall seeing any blood, and he stated that he would never hurt Ryan. He could not

explain why Ryan had injuries to her vaginal area, but he denied sexually

assaulting her.

      In response to appellant’s account of what happened to Ryan, Detective

Abbondandolo told appellant that he noticed appellant was “breathing really fast”

and “talking really fast.” He told appellant, “And I don’t mean to insult you, but

from what you’re telling me, I don’t think you’re telling me the exact truth.” He

repeated this statement in various ways, telling appellant at different points in the

interview, “I don’t think you’re being honest with me,” and “Well, I don’t think

you’re being straightforward with me.” When appellant asserted that he “must’ve



                                         7
blacked out,” Detective Abbondandolo stated, “I think you remember” and “I’m

saying to you I don’t believe the blacked out thing.” Appellant persisted in stating

that he did not know what had happened to Ryan. He stated at various points that

he thought she died of a heart attack or that the police might have hurt her when

they showed up.

      After the video was played to the jury, the State proceeded with its

questioning of Detective Abbondandolo, asking whether he observed any signs that

appellant was intoxicated during the interview. Detective Abbondandolo stated

that appellant did not appear to be under the influence of any substances and had

clear speech. The State then asked:

      [State]:     Now, you stated several times throughout the statement
                   that you didn’t believe what the defendant was telling
                   you. Why didn’t you believe what he was telling you?

      [Detective]: The defendant was able to provide us with incredible
                   details in great specifics about certain things, things that
                   occurred that day, things that occurred in the past, but
                   when we came to issues regarding the victim’s death, he
                   wasn’t able to provide us with any details. His story
                   changed dramatically from the bathing incident, whether
                   he did or he didn’t. There were all these nebulous
                   answers in what he had to say, when it came down to
                   issues regarding the death. Other things, he impressed
                   the heck out of me with his ability to recall the baseball
                   score, what type of pills she took, things like that. It was
                   a clear sign of deception.

      [State]:     Were there any other physical body signs of deceptions
                   that you noticed while you were interviewing him?



                                         8
      [Detective]: Yes. . . . Primarily it began with the movement of the
                   legs. We sat and had a discussion for quite a while about
                   easy things, about going to school, where are you from,
                   and things like that, sat motionless. Once we got down to
                   the difficult questions, you know, all of a sudden he had
                   restless leg syndrome and his legs were all over the place.
                   I even asked him about it. . . . [W]hen he looked at me I
                   could tell he was looking through me and not looking at
                   me. Speaking incredibly fast was another sign where
                   we’re going to blur over the issue, like clogging one’s
                   ability to hear with all sorts of words.

      Detective Abbondandolo testified that his involvement with the case ended

with his interview of appellant.

      The jury found appellant guilty, and the trial court assessed his punishment

at ninety-two years’ confinement. This appeal followed.

                              Admission of Evidence

      Appellant complains that the trial court abused its discretion in admitting the

video recording of his interview with Detective Abbondandolo because the

detective made statements to appellant such as, “I don’t think you’re telling me the

exact truth.” Appellant also argues that the trial court erred in allowing Detective

Abbondandolo to testify about his interrogation technique generally and in

allowing him to testify regarding the opinion he formed of appellant’s truthfulness

during the interrogation.

      We review a trial court’s ruling admitting or excluding evidence for abuse of

discretion. Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). We



                                         9
will uphold the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Id. at 418; see also Burke v.

State, 371 S.W.3d 252, 258 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d)

(holding that trial court abuses its discretion in admissibility ruling when its ruling

is arbitrary or unreasonable).

A.    Video Recording of Appellant’s Interrogation

      During his interrogation of appellant, Detective Abbondandolo made

statements such as “I don’t think you’re telling me the exact truth,” “I don’t think

you’re being honest with me,” and “I’m saying to you I don’t believe the blacked

out thing.” At trial, appellant objected to the admission of these portions of his

video-recorded statement on the basis that they constituted hearsay and because

they provided improper opinion testimony.

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” TEX. R. EVID. 801(d). Statements offered only to show their effect on

the listener are not hearsay. See Young v. State, 10 S.W.3d 705, 712 (Tex. App.—

Texarkana 1999, pet. ref’d). Furthermore, statements made by police officers

during an interview are not hearsay if they are offered only to give context to the

interviewee’s replies, even if the officers accuse the interview of lying. See Kirk v.

State, 199 S.W.3d 467, 478–79 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding



                                          10
that trial court did not abuse its discretion by overruling hearsay objection to

statement by detective during tape-recorded interview that “I feel like maybe

you’ve been a little untruthful with me”).

      Here, Detective Abbondandalo’s statements were made in the course of his

interrogation of appellant. The record supports a determination that the statements

by Detective Abbondandolo were not offered to prove the truth of the matters

asserted.   The trial court reasonably could have concluded that Detective

Abbondandolo’s statements were offered either to provide context for appellant’s

statements or to show the effect of his statements on appellant. Accordingly, we

hold that the trial court did not abuse its discretion by overruling appellant’s

hearsay objection.

      Furthermore, appellant has not cited a case to us in which a police officer’s

investigative tactics during an interrogation were considered improper opinion

testimony at trial, and we have found no such case.

      Accordingly, we overrule appellant’s arguments regarding the admission of

his video-recorded interview.

B.    Detective Abbondandolo’s Trial Testimony

      Appellant also argues that the trial court erred in allowing Detective

Abbondandolo to testify at trial regarding his interviewing technique in general and

in allowing Abbondandolo to testify regarding the basis for his opinion, expressed



                                         11
during the interrogation, that appellant was not telling the truth. At trial, appellant

objected to this testimony on the basis that it invaded the province of the jury and

provided improper opinion testimony.

      The determination of a witness’s truthfulness lies solely within the jury’s

province. See Yount v. State, 872 S.W.2d 706, 709–10 (Tex. Crim. App. 1993).

Rule of Evidence 702 prohibits an expert witness from testifying that a particular

witness is truthful. TEX. R. EVID. 702; see Yount, 872 S.W.2d at 712; Schutz v.

State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Non-expert testimony may be

offered to support the credibility of a witness by offering an opinion or reputation

evidence as to the witness’s character for truthfulness or untruthfulness, but lay

witnesses may not testify to the witness’s truthfulness in the particular allegations.

See TEX. R. EVID. 608(a)(1); Schutz, 957 S.W.2d at 72.

      Detective Abbondandolo testified that he often starts interviews with simple

questions unrelated to the crime in order to “establish a baseline for [the suspect’s]

physical behavior to pick up on points of deception when [they] get to the more

difficult parts of the interview.”             This testimony addresses Detective

Abbondandolo’s interrogation techniques generally and does not directly comment

on appellant’s credibility.    See, e.g., Schutz, 957 S.W.2d at 60 (discussing

prohibition against expert witness opining directly on particular witness’s

truthfulness); Reynolds v. State, 227 S.W.3d 355, 366 (Tex. App.—Texarkana



                                          12
2007, no pet.) (holding that testimony “explaining how [witness] interviews

children and the steps taken to ask nonleading questions” does not constitute

opinion on witness’s credibility).

      Assuming without deciding that Detective Abbondandolo’s testimony

regarding his reasons for not believing what appellant was telling him during the

interrogation did constitute impermissible opinion testimony, the error was not

harmful.

      Under Rule of Appellate Procedure 44.2(b), we must disregard non-

constitutional error that does not affect a defendant’s “substantial rights,” that is, if

upon examining the record as a whole, there is a fair assurance that the error did

not have a substantial and injurious effect or influence in determining the jury’s

verdict. TEX. R. APP. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim.

App. 2010). If the improperly admitted evidence did not influence the jury or had

but a slight effect upon its deliberations, such non-constitutional error is harmless.

Coble, 330 S.W.3d at 280. In making this determination, we review the record as a

whole, including any testimony or physical evidence admitted for the jury’s

consideration, the nature of the evidence supporting the verdict, and the character

of the alleged error and how it might be considered in connection with other

evidence in the case. See id.; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.




                                           13
App. 2002); James v. State, 335 S.W.3d 719, 727 (Tex. App.—Fort Worth 2011,

no pet.).

      The evidence of appellant’s guilt was overwhelming.           See Motilla, 78

S.W.3d at 360 (holding that weight of evidence of defendant’s guilt is relevant

factor in conducting harm analysis). Appellant and Ryan were the only two people

in the apartment when Ryan sustained the injuries that ultimately killed her. The

apartment door had a special lock to prevent Ryan from wandering away and

neither appellant nor Ryan had the key. Ramirez testified that she left appellant

alone with Ryan when she went to visit a neighbor, and when she returned, she

found Ryan in the shower showing signs of serious injury.

      The jury also had substantial physical evidence on which to base its verdict.

The medical examiner testified extensively regarding the cause of Ryan’s death,

including blunt force trauma and lacerations to her vagina. Ryan’s DNA was

found on the inside of appellant’s shorts where appellant’s penis would have been

in contact with the fabric, and both Ryan’s and appellant’s DNA was found on beer

bottles collected from the scene.

      Furthermore, the jury watched the video recording of appellant’s interview

and was able to assess appellant’s credibility for itself. Appellant testified that he

found Ryan on the sofa not breathing and that he attempted CPR. He also admitted

that he was drunk and “must have blacked out” because he could not remember



                                         14
how Ryan ended up in the shower. Appellant did not testify at trial or admit any

evidence regarding what might have happened while he was “blacked out.” Thus,

his credibility was not a central issue in the case. And Detective Abbondandolo’s

testimony about his perceptions of appellant’s truthfulness during the interview

were relatively insignificant compared to the other evidence presented at trial.

      Appellant argues that the “lengthy deliberations” and the jury notes

requesting a transcript of appellant’s interrogation, copies of Ostlund’s and

Ramirez’s testimony, Ryan’s medical and autopsy reports, and a copy of the

receipt showing what appellant purchased at the store shortly before Ryan’s death

demonstrate that he suffered harm.        The record demonstrates that the jury

deliberated for approximately five hours in considering the evidence adduced over

four days during the guilt-innocence phase of trial. Under the circumstances of

this case, five hours of deliberation does not support appellant’s claim that jury had

difficulty reaching a verdict. Furthermore, none of the requests for copies or

physical exhibits sought Detective Abbondandolo’s testimony. Rather, the jury

reviewed the transcript of appellant’s interrogation, Ostlund’s and Ramirez’s

testimony, and the physical evidence presented at trial.

      Based on the entirety of the record, we have a fair assurance that the alleged

error did not influence the jury or that it had but a slight effect. See Coble, 330

S.W.3d at 280; Motilla, 78 S.W.3d at 360.



                                         15
      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




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