                                                                                 PD-1659-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 1/16/2015 1:28:17 PM
JANUARY 16, 2015                                                Accepted 1/16/2015 1:58:11 PM
                                 PD-1659-14                                       ABEL ACOSTA
                                                                                          CLERK

                      COURT OF CRIMINAL APPEALS OF TEXAS
                   _______________________________________

                             DEAN JEROME WOOD,
                                  Appellant,

                                     VS.

                        THE STATE OF TEXAS,
                              Appellee.
__________________________________________________________________

     On Petition for Discretionary Review from the First Court of Appeals in
   Cause No. 01-13-00845-CR, affirming the conviction in Cause No. 1285552,
              from the 176th District Court of Harris County, Texas
__________________________________________________________________

           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                           ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas

                                           BOB WICOFF
                                           Assistant Public Defender
                                           Harris County, Texas
                                           TBN 21422700
                                           1201 Franklin, 13th floor
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
                                           Fax: (713) 368-9278
                                           bwicoff@pdo.hctx.net

                                           Counsel for Appellant




                                      i
                      IDENTITY OF JUDGE, PARTIES AND COUNSEL


Trial Court Judge:                                  Hon. Stacey Bond
                                                    176th District Court
                                                    Harris County, Texas
                                                    1201 Franklin Street, 19th floor
                                                    Houston, Texas 77002


Parties to the Judgment:                            Dean Jerome Wood
                                                    The State of Texas


Names and addresses of trial counsel (State):       Keri Fuller
                                                    Stephen Aslett
                                                    Assistant District Attorneys
                                                    Harris County, Texas
                                                    1201 Franklin Street, 6th floor
                                                    Houston, Texas 77002


Names and addresses of trial counsel (Defense):     Mark Hochglaube
                                                    Franklin Bynum
                                                    Assistant Public Defenders
                                                    Harris County, Texas
                                                    1201 Franklin Street, 13th floor
                                                    Houston, Texas 77002


Counsel on appeal for the State of Texas:           Eric Kugler
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin Street, 6th floor
                                                    Houston, Texas 77002


Counsel on appeal for the Appellant:                Bob Wicoff
                                                    Assistant Public Defender
                                                    Harris County, Texas
                                                    1201 Franklin Street, 13th floor
                                                    Houston, Texas 77002
                                                i
                                   TABLE OF CONTENTS

                                                                                 PAGE

Identity of Judge, Parties and Counsel:                                           i

Table of Contents:                                                                ii

Index of Authorities:                                                             iii

Statement Regarding Oral Argument:                                                iv

Statement of the Case:                                                            iv

Statement of Procedural History:                                                  iv

Ground for Review                                                                 iv

The First Court of Appeals held that any error in allowing a police officer to
provide repeated and improper opinion testimony regarding the Appellant’s
credibility had only a slight effect on the jury’s verdict. Is this conclusion
justified in light of the fact that the improper opinion testimony was
repeated several times, the jury engaged in lengthy deliberations, the jury
asked to view the tape recording in which the officer gave his improper
opinion testimony, and the prosecutor adopted the officer’s improper
opinion in his closing argument?

Argument Under Ground for Review:                                                 1

Prayer for Relief:                                                                9

Certificate of Service:                                                           9

Certificate of Compliance:                                                        10

Appendix (Wood v. State):                                                    attached




                                              ii
                                         INDEX OF AUTHORITIES

                                                                                                   PAGE
Cases

Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011) ............................................. 10, 11

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) .................................................. 10

Torres v. State, 137 S.W.3d 191 (Tex. App.-Houston [1st Dist.] 2004, no pet.)............... 7-8

Wood v. State, No. 01-13-00845-CR, 2014 WL 5780273 ..............................................passim
  (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.)(mem. op., not
   designated for publication)

Statutes and Rules

Tex. R. App. P. 44.2(b)………………………………………………………………13




                                                         iii
                       STATEMENT REGARDING ORAL ARGUMENT

      The Appellant waives oral argument.

                                  STATEMENT OF THE CASE

      Dean Jerome Wood was indicted in cause number 1285552 for Felony Murder,

alleged to have occurred on or about August 20, 2010 (C.R. at 7); See Tex. Penal Code, §

19.02(b)(3). The case was tried in September of 2013 and a jury found Wood guilty (C.R. at

224). The trial court sentenced him to ninety-two (92) years in prison (C.R. at 225). No

motion for new trial was filed.

                          STATEMENT OF PROCEDURAL HISTORY
      On November 6, 2014, the First Court of Appeals affirmed the Appellant’s

conviction in an unpublished memorandum opinion. Wood v. State, No. 01-13-00845-CR,

2014 WL 5780273 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.)(mem. op., not

designated for publication). This Court extended the time to file the Petition for

Discretionary Review until January 7, 2015.

                                   GROUND FOR REVIEW
      The First Court of Appeals held that any error in allowing a police officer to
      provide repeated and improper opinion testimony regarding the Appellant’s
      credibility had only a slight effect on the jury’s verdict. Is this conclusion
      justified in light of the fact that the improper opinion testimony was repeated
      several times, the jury engaged in lengthy deliberations, the jury asked to view
      the tape recording in which the officer gave his improper opinion testimony,
      and the prosecutor adopted the officer’s improper opinion in his closing
      argument?




                                              iv
                        ARGUMENT UNDER GROUND FOR REVIEW

   A. The Appellant’s argument at the court of appeals

      The Appellant argued at the court of appeals that the trial court abused its discretion

in allowing the jury to hear, over objections from defense counsel, Houston Police

Department Officer Abbonandolo’s repeated opinion that the Appellant was lying about his

involvement in the death of the Complainant. The officer’s opinion was provided both

during his testimony at trial, and in numerous comments that he made during a videotaped

interview of the Appellant that was played for the jury (State’s exhibit 94; 6 R.R. at 126). The

officer’s opinion that the Appellant was lying was based in part on the Appellant’s body

language during the interview. At other times, he simply voiced the same conclusion without

citing any reason.

      The videotape of the interview was admitted during Officer Abbonandolo’s

testimony. Prior to the officer taking the stand and the videotape being played, defense

counsel objected to both the videotape itself, and posed an objection to any opinions the

officer might give during his testimony which gave an opinion that the Appellant was lying

(6 R.R. at 104-105, 106, 110, 111-112). The trial court denied those objections, but the trial

court did order the State to redact some portions of the interview where the officer told the

Appellant that he could tell by his physical responses that he was lying (6 R.R. at 106-107;

110-111).




                                              -1-
   B. The court of appeals opinion

       The court of appeals held that there was no error in admitting the videotaped

interview itself. Opinion, at *5-6. As to the Appellant’s argument that the trial court also erred

in allowing impermissible opinion testimony from the officer as to whether the Appellant

was telling the truth, the court of appeals concluded as follows:

       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. 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
                                              -2-
      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.

      *7 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 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.

      We overrule appellant’s sole issue. Opinion, at *6-*7.

   C. Argument

      As argued at the court of appeals below, lengthy deliberations by the jury may

underscore the harmfulness of error in a non-constitutional harm analysis. Torres v. State, 137

S.W.3d 191, 198-199 (Tex. App.-Houston [1st Dist] 2004, no pet.). In Torres, the jury
                                             -3-
deliberated for approximately six hours before reaching a verdict, sending out two notes in

the process, one factor that the First Court of Appeals cited in that case in determining that

the error in that case resulted in “some harm” requiring reversal. Id., at 198. The First Court

of Appeals in this case downplayed the length of deliberations in this case, observing that

“[T]he record demonstrates that the jury deliberated for approximately five hours in

considering the evidence adduced over four days during the guilt-innocence phase of the

trial,” indicating that “five hours of deliberation does not support appellant’s claim that the

jury had difficulty reaching a verdict.” Opinion at *7.

       Putting aside the question of how the court of appeals can reconcile its conclusion

that five hours of deliberation is not a particularly long time to deliberate guilt-innocence in a

case where they have noted that “[T]he evidence of appellant’s guilt was overwhelming,” it is

not simply the length of time spent deliberating but what jury notes revealed as the issue that

the jury may have been grappling with, in determining whether the complained-of error had

an effect on the jury’s verdict.

       It makes sense to consider the contents of any jury notes in determining whether the

error might have had an effect on the jury’s verdict. Obviously, if the notes fairly suggest

that the jury was struggling with the very issue that the alleged error pertained to, then those

notes, coupled with a lengthy deliberation process, might reasonably suggest that the error

had some effect on the jury’s verdict. A reviewing court should hesitate to conclude that an

error wasn’t harmful, given the strength of the other evidence as they see it if,

notwithstanding such other evidence, the particular lay jury that heard the case still struggled


                                               -4-
to reach a verdict. A reviewing court should recognize and respect that fact, rather than

substituting its own view that because the case shouldn’t have been a close one in its mind,

then the error at the trial was harmless.

      The docket sheet in this case reflects that jurors retired to deliberate sometime around

noon on September 24, 2013 (C.R. at 236). About an hour later, they sent out a note that

began by requesting “a copy of the transcript of Officer Abby’s (Abbonandolo’s)

interrogation of Defendant” (C.R. at 213). The note also requested the medical report from

Bayshore Medical Hospital, where the complainant had been admitted for injuries on a date

prior to the date she died. The note also requested the autopsy report. It is reasonable to

infer from the contents of the note that the jury was focusing on the complainant’s

admission to Bayshore Hospital for injuries sustained on the occasion prior to the date she

died, perhaps to compare such medical records to the autopsy report. This may have been to

determine whether the prior injury (in which the Appellant played no part) contributed to

the complainant’s death. It may also have been a matter of trying to determine whether the

prior injury may have involved abuse, and could shed some light on whether the

Complainant’s granddaughter, who was her caretaker prior to the Appellant, played some

part in her death.

      About an hour after the first note, the jury sent a second note, which asked “to see

the Fiesta receipt and a picture of that purchase” (C.R. at 214). The only reasonable

explanation of why the jury would want to inspect the Fiesta receipt is that they were trying

to determine whether the testimony provided by the complainant’s granddaughter, Julie


                                            -5-
Ostlund, was credible, regarding when she went to Fiesta and what she bought there.

Coupled with the first note, it is reasonable to infer that the jury was considering the issue of

Julie’s credibility and her possible involvement in her grandmother’s death.

      Still a third note was sent by the jury, this one an hour after the second (C.R. at 215).

This note asked for a copy of “Julie’s and Mary’s testimony, and copy of Dean’s

interrogation in bunny suit.” This note clearly suggests that the jury was focusing on the

credibility of the three people who could possibly have killed the complainant. It was the

second request for evidence of the interview between Officer Abbonandolo and the

Appellant. It must be stressed that in terms of hearing the Appellant’s version of events and

assessing his credibility, the jury had nothing to refer to other than the videotape.

      The lengthy deliberations, coupled with the contents of the jury notes, suggests that to

this particular jury, the credibility of the Appellant, vis-à-vis Mary and especially Julie, was

the most important issue in the case. The error in allowing Officer Abbonandolo to

repeatedly assert that the Appellant was lying should give this court grave concern about

whether the jury’s verdict suffered from the effect of the error. Barshaw v. State, 342 S.W.3d

91, 93 (Tex. Crim. App. 2011). The First Court of Appeals’ “fair assurance that the alleged

error did not influence the jury or that it had but a slight effect” should not supplant the

clear evidence that the jury did struggle with the verdict, as evidenced by the length of

deliberations and the notes sent out by the jury.

      Additionally, the First Court of Appeals did not consider the fact that the error in

allowing the officer to give his opinion testimony was repeated, not an isolated instance. This


                                              -6-
Court has considered the fact that an error was isolated in concluding that it was not

harmful. Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App. 2004). The converse should

also be true. Where an error is repeated with impunity, the likelihood that it affected the

jury’s verdict would be greater. In Hawkins, which involved improper argument by the

prosecutor, the error was followed by immediate curative action by the court, and an

apology and retraction from the prosecutor. Id., at 85.

      By contrast, the jury in this case was not merely exposed to an isolated instance of

Officer Abbonandolo’s improper opinion. The officer interjected his opinion that the

Appellant was lying at least eight times during the videotaped interview (see pages 14-15,

supra) which was itself prefaced by Abbonandolo’s live testimony, in which he claimed to be

able to detect the Appellant’s lying because of the latter’s body language (6 R.R. at 111-112).

There were of course no curative measures taken by the trial court; the trial court implicitly

sanctioned Abbonandolo’s “expertise” by allowing it into evidence over objection. Because

the trial court’s erroneous ruling allowed the jury to be inundated with Abbonandolo’s

improper opinion on the most critical issue in the case, such factor also suggests that the

error had “a substantial or injurious effect on the jury’s verdict.” The First Court of Appeals

did not address the repetitiveness of the error in its opinion.

      In assessing the likelihood that the jury’s decision was improperly influenced, “other

testimony and physical evidence” is a factor to be considered in conducting a harm analysis.

Barshaw, 342 S.W.3d at 94. In this regard, the credibility of the Appellant, Mary and Julie may

have become the jury’s main focus because none of the eleven different items of evidence


                                              -7-
that comprised the rape kit that was submitted to the crime lab from the complainant

contained any DNA from the Appellant (7 R.R. at 169-170). Perhaps the jury’s difficulty in

reaching a verdict also had something to do with there being no indication that there was

blood on either of the beer bottles that were found, bottles that the State suggested had been

used in the offense (7 R.R. at 182). The absence of incriminating physical evidence that one

might expect to be found on these items, coupled with the notes that were sent from the

jury, again reinforces the likelihood that this jury’s verdict turned on a credibility

determination. Because the trial court’s error directly impacted credibility issue, it had “a

substantial or injurious effect on the jury’s verdict.”

       It is finally worth noting that although the prosecutor did not directly mention Officer

Abbonandolo’s opinion during closing argument, he did adopt the officer’s “body language”

indicator of credibility:

       And let’s not forget the demeanor. It’s a minor part of all this, but how does he
       answer questions that have to do with where he went to college and what sport
       he played? He’s calm, he’s collected, he’s not shuffling around, but when he’s
       asked questions about Flora’s death, he speeds through. He wants to change
       the subject. He’s nervously shuffling. (8 R.R. at 32-33).

       Just as it did not mention the repeated instances of the officer interjecting his opinion,

neither did the First Court of Appeals mention the prosecutor’s argument in deciding that

the error, if any, was not harmful. The First Court of Appeals, in concluding that it had a

“fair assurance” that the error was not harmful, improperly overlooked numerous indicators

that suggested that the jury did not have such fair assurance, but was instead troubled by the

very matters that the error would have impacted.


                                               -8-
                                   PRAYER FOR RELIEF

       For the reasons stated above, the Appellant moves that this Court grant his petition,

hold that harm has been demonstrated under Tex. R. App. P. 44.2(b), and reverse the case

for a new trial.

                                              Respectfully submitted,

                                              Alexander Bunin
                                              Chief Public Defender
                                              Harris County Texas



                                              /s/ Bob Wicoff
                                              Bob Wicoff
                                              Assistant Public Defender
                                              Harris County Texas
                                              1201 Franklin, 13th floor
                                              Houston Texas 77002
                                              (713) 274-6781
                                              TBA No. 21422700

                                              Counsel for Appellant

                                CERTIFICATE OF SERVICE

       I hereby certify that on January 16, 2015 copy of the foregoing petition has been

served electronically on Alan Curry, who is the chief of the appellate division of the Harris

County District Attorney’s Office, through the efile system, and on the State Prosecuting

Attorney.



                                              /s/ Bob Wicoff


                                            -9-
                            CERTIFICATE OF COMPLIANCE

     This petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)

and 9.4(i). It contains 2,553 words printed in a proportionally spaced typeface using

Garamond 14 point font.



                                            /s/ Bob Wicoff




                                         - 10 -
                        A P P E N D I X
           Opinion in Wood v. State, No. 01-13-00845-CR,
2014 WL 5780273 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.)
             (mem. op., not designated for publication)




                                  11
                                                                    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
                2014 WL 5780273
  Only the Westlaw citation is currently available.                 outside.

  SEE TX R RAP RULE 47.2 FOR DESIGNATION                            From the time that Ryan moved to Houston in 2000 until
         AND SIGNING OF OPINIONS.                                   May 2010, Ramirez was Ryan’s primary caretaker. In
                                                                    May 2010, Ramirez gave birth to a baby boy and needed
         MEMORANDUM OPINION                                         assistance taking care of Ryan. In 2010, Ostlund met
   Do not publish. TEX. R. APP. P. 47.2(b).                         appellant while she was working at the Salvation Army.
           Court of Appeals of Texas,                               Appellant subsequently moved into the apartment to help
              Houston (1st Dist.).                                  with Ryan’s care. He slept on a loveseat in the apartment
                                                                    right next to the couch on which Ryan slept, and he
          Dean Jerome WOOD, Appellant                               helped care for Ryan by helping her get around and by
                        v.                                          making her food.
           The STATE of Texas, Appellee.
                                                                    On August 20, 2010, Ostlund went to work and Ryan
        No. 01–13–00845–CR. | Nov. 6, 2014.                         stayed at the apartment with Ramirez and appellant. At
                                                                    some point during the day, Ramirez asked appellant to go
On Appeal from the 176th District Court, Harris County,             to the store to get her cigarettes; he returned with beer and
Texas, Trial Court Case No. 1285552.                                cigarettes, as well as a bottle of Steel Reserve malt liquor
                                                                    for himself. Ramirez then left the apartment with her baby
Attorneys and Law Firms
                                                                    to visit her neighbor and locked the apartment door when
Franklin Bynum, for Dean Jerome Wood.                               she exited, locking both Ryan and appellant inside the
                                                                    apartment. When Ramirez returned to her apartment, she
Alan Curry, Devon Anderson, for The State of Texas.                 noticed that Ryan was no longer on the couch, so she
                                                                    checked the bathroom. Ramirez testified that she found
Panel consists of Chief Justice RADACK and Justices                 Ryan lying flat in the shower, naked, with the showerhead
JENNINGS and KEYES.                                                 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
             MEMORANDUM OPINION                                     Ryan, appellant was on the porch smoking a cigarette.
                                                                    Ramirez testified that appellant had changed clothes and
EVELYN V. KEYES, Justice.                                           was then wearing a different pair of shorts than the pair he
                                                                    had been wearing when Ramirez left the apartment
*1 A jury found appellant, Dean Jerome Wood, guilty of
                                                                    earlier. When Ramirez asked appellant to help lift Ryan
first-degree felony murder, and the trial court assessed his
                                                                    out of the bathtub, he calmly stated: “grandma’s dead.”
punishment at ninety-two years’ confinement.1 In his sole
                                                                    When the paramedics arrived, Ramirez testified that
point of error, appellant argues that the trial court abused
                                                                    appellant was being loud and “talking crap to the
its discretion by admitting portions of his interrogation by
                                                                    ambulance people and the cop that was there.”
Detective C. Abbondandolo and allowing the detective to
testify about the interrogation.
                                                                    Officer Smith, a police officer who reported to the scene,
                                                                    testified that appellant was behaving in an erratic and
We affirm.
                                                                    violent manner. He and the other officers detained
                                                                    appellant because they were worried he might hurt
                                                                    someone.

                       Background                                   *2 Ryan’s autopsy revealed a lot of bruising, mostly
                                                                    concentrated on her face, head, forearms, and wrists. Dr.
The complainant, Flora Ryan, moved to Houston in 2000,              Chu, the medical examiner, testified that Ryan’s bruising
after having been diagnosed with Alzheimer’s, to live               was not consistent with a fall; rather, it was consistent
with her daughter, Mary Ostlund, and her granddaughter,             with her head being hit with a blunt object “at least four
Julie Ramirez. Ryan, who was ninety-two years old in                [times], four impacts, and quite likely many more than
2010, had a number of medical problems, including                   that.” In addition to the bruising, Ryan had a fractured toe

                                                               12
and ribs and vaginal lacerations that were likely caused by                         *3 Little subtle physical things that
“some kind of blunt trauma, penetrating trauma to the                               happen in the body when someone
vagina.” Dr. Chu concluded that the cause of Ryan’s                                 is trying to mask the truth. The
death was “blunt force injuries with cutaneous contusions,                          stress level seems to get elevated,
or bruising of the skin, and vaginal lacerations.” The State                        and during those times their body
also presented DNA evidence. Ryan’s DNA was found on                                makes movements that they can’t
the inside of the shorts appellant had been wearing.                                control. Even though they’re trying
Ryan’s and appellant’s DNA was found on beer bottles                                to deceive you in what they’re
collected at the scene.                                                             saying, there are things that the
                                                                                    body does that makes it quite
At trial, the State called Detective C. Abbondandolo, a                             apparent that they’re not being
homicide detective with the Houston Police Department,                              honest.
to testify regarding his interview of appellant in
connection with Ryan’s murder. Prior to Detective                       He described these involuntary movements as including
Abbondandolo’s taking the stand, appellant objected to                  “the twitching of the eyes, perhaps a tear that fall out
any testimony the detective might offer regarding his                   unexpectedly, a licking of lips, looking in a certain
ability to tell whether a suspect was telling the truth.                direction when you talk to them.” He emphasized that
Appellant      specifically     argued      that       Detective        every person is different.
Abbondandolo’s assertions that he did not believe
appellant’s statements during his interrogation should not              Detective Abbondandolo then testified regarding his
be admitted “because it invades the province of the jury.               interview of appellant and described the procedures he
They jury can look at [appellant’s] behavior on that video              used, such as setting up recording equipment and reading
and they can decide whether or not they think he’s telling              appellant his Miranda warnings. Detective Abbondandolo
the truth. They don’t need Officer Abbondandolo to tell                 testified that, contrary to his usual procedure, he did not
‘em.” The trial court overruled appellant’s objection,                  remove appellant’s handcuffs during the interview. He
stating, “I believe that if the State lays the foundation               believed, based on appellant’s facial expressions and
about his training and experience and identifying truth                 physical behavior, that everyone would be safer if
telling or not, that the jury can ... consider it ... since he’s        appellant remained handcuffed.
an expert when they decide to evaluate the witness and his
or the defendant’s behavior on the video tape.” Appellant               The State then sought to admit the video recording of
sought, and obtained, a running objection to any                        appellant’s interrogation that was conducted by Detective
testimony regarding Detective Abbondandolo’s beliefs                    Abbondandolo on the day following Ryan’s death.
regarding appellant’s truthfulness during his interrogation.            Appellant raised objections to various statements made by
                                                                        Detective Abbdondandolo in the video recording, such as
Detective Abbondandolo first testified about                the         his statements to appellant, “I don’t think you’re telling
“interviewing style” he used to question suspects:                      me the exact truth,” “I don’t think that you’re being
                                                                        honest with me,” and “[Y]our explanation doesn’t match
             What I like to do is talk to folks                         the physical evidence that’s there, doesn’t match what
             that are potential suspects for a                          Julie’s saying.” Appellant argued that these statements
             while before I actually talk to them                       were hearsay and that they invaded the province of the
             about the crime itself, to try to                          jury. The trial court overruled these objections and
             determine a little bit about them, to                      admitted the video recording of appellant’s interview.
             see how they answer questions that
             are not related to something that’s                        In the video, Detective Abbondandolo questioned
             terribly stressful but something                           appellant about the events leading up to Ryan’s death.
             that’s related to something that they                      Appellant stated repeatedly that he could not remember
             should be able to answer easily.                           much about what happened to Ryan because he had
             That way I can establish a baseline                        “blacked out” after drinking a large quantity of alcohol.
             for their physical behavior to pick                        Appellant repeatedly told Detective Abbondandolo that he
             up on points of deception when we                          found Ryan not breathing on the sofa and attempted to
             get to the more difficult parts of the                     perform CPR. Appellant did not recall how Ryan got in
             interview.                                                 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
Appellant interrupted to clarify that he had a running
                                                                        denied sexually assaulting her.
objection to Abbondandolo’s testimony, and the trial
court agreed. Detective Abbondandolo went on to testify
generally about the “points of deception” he looked for                 In response to appellant’s account of what happened to
when interviewing a suspect:                                            Ryan, Detective Abbondandolo told appellant that he

                                                                   13
noticed appellant was “breathing really fast” and “talking           Detective Abbondandolo testified that his involvement
really fast.” He told appellant, “And I don’t mean to insult         with the case ended with his interview of appellant.
you, but from what you’re telling me, I don’t think you’re
telling me the exact truth.” He repeated this statement in           The jury found appellant guilty, and the trial court
various ways, telling appellant at different points in the           assessed his punishment at ninety-two years’
interview, “I don’t think you’re being honest with me,”              confinement. This appeal followed.
and “Well, I don’t think you’re being straightforward with
me.” When appellant asserted that he “must’ve 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                             Admission of Evidence
did not know what had happened to Ryan. He stated at
various points that he thought she died of a heart attack or         Appellant complains that the trial court abused its
that the police might have hurt her when they showed up.             discretion in admitting the video recording of his
                                                                     interview with Detective Abbondandolo because the
*4 After the video was played to the jury, the State                 detective made statements to appellant such as, “I don’t
proceeded with its questioning of Detective                          think you’re telling me the exact truth.” Appellant also
Abbondandolo, asking whether he observed any signs that              argues that the trial court erred in allowing Detective
appellant was intoxicated during the interview. Detective            Abbondandolo to testify about his interrogation technique
Abbondandolo stated that appellant did not appear to be              generally and in allowing him to testify regarding the
under the influence of any substances and had clear                  opinion he formed of appellant’s truthfulness during the
speech. The State then asked:                                        interrogation.

     [State]: Now, you stated several times throughout the           We review a trial court’s ruling admitting or excluding
     statement that you didn’t believe what the defendant            evidence for abuse of discretion. Ramos v. State, 245
     was telling you. Why didn’t you believe what he was             S.W.3d 410, 417–18 (Tex.Crim.App.2008). We will
     telling you?                                                    uphold the trial court’s ruling if it is reasonably supported
                                                                     by the record and is correct under any theory of law
     [Detective]: The defendant was able to provide us               applicable to the case. Id. at 418; see also Burke v. State,
     with incredible details in great specifics about certain        371 S.W.3d 252, 258 (Tex.App.-Houston [1st Dist.] 2011,
     things, things that occurred that day, things that              pet. dism’d) (holding that trial court abuses its discretion
     occurred in the past, but when we came to issues                in admissibility ruling when its ruling is arbitrary or
     regarding the victim’s death, he wasn’t able to                 unreasonable).
     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             A. Video Recording of Appellant’s Interrogation
     issues regarding the death. Other things, he                    *5 During his interrogation of appellant, Detective
     impressed the heck out of me with his ability to                Abbondandolo made statements such as “I don’t think
     recall the baseball score, what type of pills she took,         you’re telling me the exact truth,” “I don’t think you’re
     things like that. It was a clear sign of deception.             being honest with me,” and “I’m saying to you I don’t
                                                                     believe the blacked out thing.” At trial, appellant objected
     [State]: Were there any other physical body signs of            to the admission of these portions of his video-recorded
     deceptions that you noticed while you were                      statement on the basis that they constituted hearsay and
     interviewing him?                                               because they provided improper opinion testimony.

     [Detective]: Yes.... Primarily it began with the                Hearsay is “a statement, other than one made by the
     movement of the legs. We sat and had a discussion               declarant while testifying at the trial or hearing, offered in
     for quite a while about easy things, about going to             evidence to prove the truth of the matter asserted.”
     school, where are you from, and things like that, sat           TEX.R. EVID. 801(d). Statements offered only to show
     motionless. Once we got down to the difficult                   their effect on the listener are not hearsay. See Young v.
     questions, you know, all of a sudden he had restless            State, 10 S.W.3d 705, 712 (Tex.App.-Texarkana 1999,
     leg syndrome and his legs were all over the place. I            pet. ref’d). Furthermore, statements made by police
     even asked him about it.... [W]hen he looked at me I            officers during an interview are not hearsay if they are
     could tell he was looking through me and not                    offered only to give context to the interviewee’s replies,
     looking at me. Speaking incredibly fast was another             even if the officers accuse the interview of lying. See Kirk
     sign where we’re going to blur over the issue, like             v. State, 199 S.W.3d 467, 478–79 (Tex.App.-Fort Worth
     clogging one’s ability to hear with all sorts of words.         2006, pet. ref’d) (holding that trial court did not abuse its
                                                                     discretion by overruling hearsay objection to statement by
                                                                14
detective during tape-recorded interview that “I feel like             witness opining directly on particular witness’s
maybe you’ve been a little untruthful with me”).                       truthfulness); Reynolds v. State, 227 S.W.3d 355, 366
                                                                       (Tex.App.-Texarkana 2007, no pet.) (holding that
Here, Detective Abbondandalo’s statements were made in                 testimony “explaining how [witness] interviews children
the course of his interrogation of appellant. The record               and the steps taken to ask nonleading questions” does not
supports a determination that the statements by Detective              constitute opinion on witness’s credibility).
Abbondandolo were not offered to prove the truth of the
matters asserted. The trial court reasonably could have                Assuming       without     deciding   that   Detective
concluded that Detective Abbondandolo’s statements                     Abbondandolo’s testimony regarding his reasons for not
were offered either to provide context for appellant’s                 believing what appellant was telling him during the
statements or to show the effect of his statements on                  interrogation did constitute impermissible opinion
appellant. Accordingly, we hold that the trial court did not           testimony, the error was not harmful.
abuse its discretion by overruling appellant’s hearsay
objection.                                                             Under Rule of Appellate Procedure 44.2(b), we must
                                                                       disregard non-constitutional error that does not affect a
Furthermore, appellant has not cited a case to us in which             defendant’s “substantial rights,” that is, if upon examining
a police officer’s investigative tactics during an                     the record as a whole, there is a fair assurance that the
interrogation were considered improper opinion testimony               error did not have a substantial and injurious effect or
at trial, and we have found no such case.                              influence in determining the jury’s verdict. Tex.R.App. P.
                                                                       44.2(b); Coble v. State, 330 S.W.3d 253, 280
Accordingly, we overrule appellant’s arguments regarding               (Tex.Crim.App.2010). If the improperly admitted
the admission of his video-recorded interview.                         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
B. Detective Abbondandolo’s Trial Testimony                            any testimony or physical evidence admitted for the jury’s
Appellant also argues that the trial court erred in allowing           consideration, the nature of the evidence supporting the
Detective Abbondandolo to testify at trial regarding his               verdict, and the character of the alleged error and how it
interviewing technique in general and in allowing                      might be considered in connection with other evidence in
Abbondandolo to testify regarding the basis for his                    the case. See id.; Motilla v. State, 78 S.W.3d 352, 355
opinion, expressed during the interrogation, that appellant            (Tex.Crim.App.2002); James v. State, 335 S.W.3d 719,
was not telling the truth. At trial, appellant objected to this        727 (Tex.App.-Fort Worth 2011, no pet.).
testimony on the basis that it invaded the province of the
jury and provided improper opinion testimony.                          The evidence of appellant’s guilt was overwhelming. See
                                                                       Motilla, 78 S.W.3d at 360 (holding that weight of
The determination of a witness’s truthfulness lies solely              evidence of defendant’s guilt is relevant factor in
within the jury’s province. See Yount v. State, 872 S.W.2d             conducting harm analysis). Appellant and Ryan were the
706, 709–10 (Tex.Crim.App.1993). Rule of Evidence 702                  only two people in the apartment when Ryan sustained
prohibits an expert witness from testifying that a                     the injuries that ultimately killed her. The apartment door
particular witness is truthful. TEX.R. EVID. 702; see                  had a special lock to prevent Ryan from wandering away
Yount, 872 S.W.2d at 712; Schutz v.. State, 957 S.W.2d                 and neither appellant nor Ryan had the key. Ramirez
52, 59 (Tex.Crim.App.1997). Non-expert testimony may                   testified that she left appellant alone with Ryan when she
be offered to support the credibility of a witness by                  went to visit a neighbor, and when she returned, she found
offering an opinion or reputation evidence as to the                   Ryan in the shower showing signs of serious injury.
witness’s character for truthfulness or untruthfulness, but
lay witnesses may not testify to the witness’s truthfulness            The jury also had substantial physical evidence on which
in the particular allegations. See TEX.R. EVID. 608(a)(1);             to base its verdict. The medical examiner testified
Schutz, 957 S .W.2d at 72.                                             extensively regarding the cause of Ryan’s death,
                                                                       including blunt force trauma and lacerations to her
*6 Detective Abbondandolo testified that he often starts               vagina. Ryan’s DNA was found on the inside of
interviews with simple questions unrelated to the crime in             appellant’s shorts where appellant’s penis would have
order to “establish a baseline for [the suspect’s] physical            been in contact with the fabric, and both Ryan’s and
behavior to pick up on points of deception when [they]                 appellant’s DNA was found on beer bottles collected from
get to the more difficult parts of the interview.” This                the scene.
testimony     addresses     Detective     Abbondandolo’s
interrogation techniques generally and does not directly               *7 Furthermore, the jury watched the video recording of
comment on appellant’s credibility. See, e.g., Schutz, 957             appellant’s interview and was able to assess appellant’s
S.W.2d at 60 (discussing prohibition against expert                    credibility for itself. Appellant testified that he found

                                                                  15
Ryan on the sofa not breathing and that he attempted               appellant’s claim that jury had difficulty reaching a
CPR. He also admitted that he was drunk and “must have             verdict. Furthermore, none of the requests for copies or
blacked out” because he could not remember how Ryan                physical exhibits sought Detective Abbondandolo’s
ended up in the shower. Appellant did not testify at trial         testimony. Rather, the jury reviewed the transcript of
or admit any evidence regarding what might have                    appellant’s interrogation, Ostlund’s and Ramirez’s
happened while he was “blacked out.” Thus, his                     testimony, and the physical evidence presented at trial.
credibility was not a central issue in the case. And
Detective Abbondandolo’s testimony about his                       Based on the entirety of the record, we have a fair
perceptions of appellant’s truthfulness during the                 assurance that the alleged error did not influence the jury
interview were relatively insignificant compared to the            or that it had but a slight effect. See Coble, 330 S.W.3d at
other evidence presented at trial.                                 280; Motilla, 78 S .W.3d at 360.

Appellant argues that the “lengthy deliberations” and the          We overrule appellant’s sole issue.
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                                  Conclusion
suffered harm. The record demonstrates that the jury
deliberated for approximately five hours in considering            We affirm the judgment of the trial court.
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

Footnotes
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).




    End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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