Affirmed and Opinion Filed May 20, 2015




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01251-CR

                    RAYMOND ANTHONY WASHINGTON, Appellant
                                     V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 380-81913-2011

                            MEMORANDUM OPINION
                           Before Justices Bridges, Lang, and Evans
                                  Opinion by Justice Bridges
       Raymond Anthony Washington appeals his murder conviction.              A jury convicted

appellant and sentenced him to thirty-three years’ confinement. In a single issue, appellant

argues the trial court erred in excluding evidence of the impossibility of prosecuting his

seventeen-year-old co-defendant for capital murder, thus denying appellant the ability to present

a complete defense. We affirm the trial court’s judgment.

       Nelson Snider testified he met appellant in May 2011 when appellant asked if Snider

“could find him a gun” or “find him marijuana.” Snider did not deal in guns, but he told

appellant he could provide marijuana, and the two exchanged contact information. On June 1,

2011, appellant called and asked Snider if he could find a pound of marijuana for appellant.

Snider knew a man, Andre Currier, who was “practically family” and who had access to a pound
of marijuana. During the following few hours, Snider was in contact with appellant and Currier,

trying to arrange a deal. Ultimately, appellant agreed to buy a pound of marijuana for $4500,

and appellant picked up Snider and drove him to Frisco where they were to meet Currier near a

7-Eleven and sample the marijuana. Before leaving with appellant, Snider told a friend to take

down appellant’s license plate number when he came to pick up Snider.

       At the meeting, another man, Daniel Ramsour, showed up in a dark blue SUV driven by a

woman. Snider did not know Ramsour was going to show up, and appellant had not mentioned

Ramsour. Appellant said Ramsour was “the person with the money.” After Currier gave

appellant a sample of the marijuana, Snider and appellant left together, and Ramsour left in the

SUV.

       Appellant drove to a convenience store where he went inside, leaving Snider outside on

the phone with Currier. Snider and Currier were “both expressing their worries” concerning the

unknown person who had showed up at the sample exchange. Currier said he wanted to meet at

a Wal-Mart, and appellant drove Snider to that location. On the way, appellant said “his friend

with the money, his ride had to leave,” and appellant pulled over beside the road and Ramsour

got in the back seat of appellant’s car.

       Appellant drove to the “back of the parking lot” at Wal-Mart and parked next to Currier’s

Mercedes. Snider got out of appellant’s car and got in the front passenger side of Currier’s car.

Appellant, who was supposed to get in Currier’s car, “[t]akes off running to the Wal-Mart.”

Ramsour got in the back seat of Currier’s car behind Snider. Currier took out the marijuana and

weighed it before placing it in a bag in the driver’s side floorboard. Ramsour pulled out a gun

and said, “Give me the weed.” “There was some yelling,” and both Snider and Currier had their

hands up. Snider’s “passenger door opened,” and he saw appellant “brandishing a large combat

knife.” Appellant said, “Give me the weed,” and Snider “heard the gun go off behind [his]

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head.” At the time, Snider was “turned to grab the weed,” and he saw Currier get shot in the

chest. In the confusion that followed, Snider threw the marijuana out of the car and appellant

“turned around and grabbed it.”

       While Ramsour continued shooting, Snider got out of the car and ran behind a hill to take

cover. Snider saw appellant and Ramsour running to appellant’s car and hear them “saying that

they had the weed.” Snider ran back to Currier’s car, which Currier had shifted into reverse and

was slowly backing up in the parking lot. Snider was “begging [appellant] to throw my bag out

that belonged to my brother.” Snider had left in appellant’s car the backpack containing his only

pictures of his deceased older brother. Appellant threw the backpack out of the car, and Snider

got the bag and ran to the driver’s side of Currier’s car. Snider saw there was blood coming out

of Currier’s mouth and nose, and Snider moved Currier into the passenger side of the car. Snider

got in the driver’s seat and drove away. At some point, Snider took Currier’s cell phone. Snider

was trying to take Currier to a hospital, but he “ended up getting lost” and returned to the Wal-

Mart. Snider parked the car, and the police pulled in behind him. Snider ran away and called

Currier’s cousin Chris to come get him. Chris later took Snider to the police station where

Snider gave a written statement and told police appellant’s license plate number.         Police

subsequently obtained arrest warrants for Ramsour and appellant and determined they were in

police custody in Beaumont.

       Appellant was indicted on a capital murder charge. Relevant to this appeal, at trial the

prosecutor commented in his opening statement that Ramsour and appellant were “both charged

with capital murder.” Appellant did not object to this comment. In fact, defense counsel argued

in his opening statement the following:

       The situation is that the defendant and Daniel Ramsour – and Daniel Ramsour,
       they just told you, he’s charged with capital murder. He’s 17 years old. He
       cannot be prosecuted for capital murder under the law. It’s illegal. He can only

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       be prosecuted for murder, because the Supreme Court of the United States has
       ruled –

At this point, the prosecutor objected that this statement was “argumentative,” and the trial court

sustained the objection. Defense counsel again stated, “He can’t be prosecuted for it. The most

he’s looking at is a murder charge.” The prosecutor again raised an “argumentative” objection.

Instead of ruling on the objection, however, the trial court said, “Please continue with what you

believe the evidence will show.”

       Later, after a police officer testified he had interviewed Ramsour, defense counsel asked,

“And what is your understanding about whether he can be tried or charged with capital murder?”

The prosecutor objected as to “relevance,” and the trial court sustained the objection.

       After the presentation of the State’s case-in-chief, defense counsel proffered outside the

presence of the jury the testimony of a defense attorney who would testify “whether a seventeen-

year-old could be tried for capital murder.” The following exchange ensued:

       [THE COURT]: Mr. Ramsour’s case is pending in this court as well. He has been
       charged with capital murder. After that indictment we were all aware of the
       Supreme Court decision with reflects that the – a juvenile – again, there’s a
       debate, a genuine debate, too, whether we’re talking about someone under the age
       of 18 or someone who is a juvenile, because they use those terms interchangeably
       in their opinion, and whether or not the State – the Texas death penalty – I’m
       sorry – lack of possibility of parole scheme would apply to someone who is an
       adult in Texas but under the age of 18 at the time of the commission of the
       offense. So the representation that he has been charged with capital murder is
       accurate. How is it going to assist the jury in determining a fact in issue, if [the
       defense attorney] is allowed to testify that in his opinion Mr. Ramsour cannot be
       prosecuted under the current statutes for the offense of capital murder?

       [DEFENSE COUNSEL]: We believe, since the State has proposed it, or has
       breached it in opening statements to the jurors, the insinuation is that Mr.
       Ramsour can and will be tried for the offense of capital murder, and as the shooter
       could very well receive a life without parole verdict from the jury as punishment,
       which we believe is a direct and completely incorrect statement of what the
       current law is under the Supreme Court of the United States.

The prosecutor objected that the defense attorney’s opinion about the law was not relevant

because it would not make any fact of consequence more likely or not that appellant was guilty

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of capital murder as a party and that the testimony would be more prejudicial than probative.

The trial court sustained the prosecutor’s objection, stating it was “not a relevant issue at this

point whether or not Mr. Ramsour ultimately [could] be prosecuted under the current sentencing

scheme for capital murder.

       Before closing arguments in the guilt innocence phase, the prosecutor requested a motion

in limine preventing appellant from mentioning any potential consequences that “the co-

defendant Ramsour may be facing because of his age. There’s been no evidence of it.” The trial

court granted the motion. The jury subsequently convicted appellant of the lesser included

offense of murder, and this appeal followed.

       In his sole issue on appeal, appellant argues the trial court erred in excluding evidence

regarding the legal impossibility of prosecuting and convicting appellant’s seventeen-year-old

co-defendant of capital murder. As a result, appellant argues, the jury was left with a false

impression of fact and law, and appellant was denied the opportunity to present a complete

defense.

       At the outset, we note appellant did not object on the basis that he was being denied the

opportunity to present a complete defense when the trial court excluded the proffered evidence

concerning whether a seventeen-year-old could be tried for capital murder. Because he did not

argue at trial that the exclusion of evidence would violate his constitutional right to present a

defense, he has failed to preserve this constitutional complaint for appellate review.        See

Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (right to meaningful opportunity

to present complete defense subject to forfeiture).

       Even if we were to address appellant’s claim that he was denied the opportunity to

present a complete defense, appellant has cited no authority supporting his argument that his




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proffered evidence constituted a viable defense. On the contrary, section 7.03(2) of the penal

code provides as follows:

       In a prosecution in which an actor’s criminal responsibility is based on the
       conduct of another, the actor may be convicted on proof of commission of the
       offense and that he was a party to its commission, and it is no defense:

       (2) that the person for whose conduct the actor is criminally responsible has been
       acquitted, has not been prosecuted or convicted, has been convicted of a different
       offense or of a different type or class of offense, or is immune from prosecution.

TEX. PEN. CODE ANN. § 7.03 (West 2011); see Ex parte Thompson, 179 S.W.3d 549, 553-54

(Tex. Crim. App. 2005) (acquittal of principal does not prevent conviction of his accomplice).

Thus, whether or not Ramsour could be prosecuted for capital murder, it served as no defense to

appellant in his prosecution for capital murder as a party. See id. Because the disposition of the

case against Ramsour offered no defense to appellant, we cannot conclude appellant was denied

the opportunity to present a complete defense by the exclusion of evidence concerning the

possible disposition of Ramsour’s case.

       Finally, appellant has failed to show he was harmed by the exclusion of evidence

regarding the case against Ramsour. The admission of the prosecutor’s testimony is non-

constitutional error, and a non-constitutional error “that does not affect substantial rights must be

disregarded.” TEX. R. APP. P. 44.2(b); see Schutz v. State, 63 S.W.3d 442, 444-46 (Tex. Crim.

App. 2001). Substantial rights are not affected by the erroneous admission of evidence if the

appellate court, after examining the record as a whole, has a fair assurance that the error did not

influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002).

       Here, the jury acquitted appellant of capital murder and convicted him of the lesser

included offense of murder. As to punishment, the jury sentenced appellant to thirty-three years’

confinement when the punishment range for murder is 5 to 99 years or life. See TEX. PEN. CODE


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ANN. §§ 12.32(a); 19.02(b) (West 2011). In fact, defense counsel asked the jury to assess

appellant’s punishment at twenty years while the State asked for a life sentence. Under these

circumstances, we conclude appellant was not harmed by the exclusion of evidence concerning

whether Ramsour could be prosecuted for capital murder. See Motilla, 78 S.W.3d at 355. We

overrule appellant’s sole issue.

       We affirm the trial court’s judgment.



Do Not Publish
TEX. R. APP. P. 47.2(b)
                                                     /David L. Bridges/
131251F.U05                                          DAVID L. BRIDGES
                                                     JUSTICE




                                               –7–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

RAYMOND ANTHONY WASHINGTON,                       On Appeal from the 416th Judicial District
Appellant                                         Court, Collin County, Texas
                                                  Trial Court Cause No. 380-81913-2011.
No. 05-13-01251-CR       V.                       Opinion delivered by Justice Bridges.
                                                  Justices Lang and Evans participating.
THE STATE OF TEXAS, Appellee

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 20, 2015.




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