In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00407-CR
____________
JEFF REYNOLDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 36,990
O P I N I O N
A jury found appellant guilty of murder and assessed punishment at 40 years confinement. We affirm.
Background
The victim worked as a carpenter on one of appellant’s properties. When the project was complete, the victim paid appellant to live in appellant’s home while he tried to find work in the area. The night before the shooting, appellant and the victim argued in a bar. They continued to argue later at appellant’s home. The victim poked appellant in the chest. Appellant grabbed the victim’s hand, and the victim twisted appellant’s hand. Appellant told the victim to move out of the house if he was not going to pay rent. The victim left.
Later, appellant approached a different tenant who lived in his house and had been storing appellant’s guns. Appellant said that he needed a gun to protect himself from the victim because appellant was scared. When appellant returned to the main house, the victim said, “You think you want to get it on now?” Appellant claims that he was scared of the victim. While both men were sitting at a table, appellant arose, and the victim pushed him down. They struggled, and appellant thought the victim reached behind his back. Appellant pulled out his gun and shot the victim twice. Appellant returned the gun to the other tenant, went back to his house, and fell asleep.
Appellant claims that he shot the victim in self defense. To contradict the theory of self defense, the State offered two possible theories for appellant’s motive: love and money. First, appellant was jealous that the victim had tried to date appellant’s girlfriend. Second, the victim owed appellant rent money.
The jury found appellant guilty of murder. In two points of error, appellant contends that the trial court erred in: (1) excluding evidence of the victim’s prior robbery conviction and (2) admitting evidence of appellant’s prior unadjudicated assault.
Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Id.
Victim’s Prior Robbery Conviction
In the first point of error, appellant contends that the trial court erred in excluding evidence of the victim’s prior robbery conviction.
Appellant claimed self defense, arguing that the victim’s prior robbery showed the victim’s violent and aggressive behavior. He sought to introduce two of the victim’s prior offenses. First, the victim had been convicted of robbery on April 20, 1979. Second, the victim had been convicted in 1983 for possession of a prohibited weapon. The victim had possessed a shotgun, which was prohibited because he was on parole at that time.
The murder offense in this case occurred on June 5, 1999, almost 21 years after the 1979 robbery conviction. The State objected to the admission of the victim’s two prior offenses under Rule 403 based on the remoteness in time and the lack of relevancy. TEX. R. EVID. 403. The trial court admitted the 1983 offense and excluded the 1979 offense, holding as follows:
As regards the nature of the offenses, the probative versus prejudicial effect before the jury, I will find that there is a substantial likelihood that the robbery extraneous offense would be more prejudicial than probative as to any of the issues before this Court and will exclude the robbery case on that ground, in that there is—I am making a finding that it is, the prejudicial effect is substantially outweighed or outweighs the probative value. Though it may be probative, it is substantially prejudicial.
Appellant contends that the trial court erred in finding that the probative value of the evidence of the robbery conviction substantially outweighed the prejudicial effect. A defendant in a homicide prosecution who raises the issue of self defense may introduce evidence of the deceased’s violent character. Tex. R. Evid. 404(a)(2); Tate v. State, 981 S.W.2d 189, 192-93 (Tex. Crim. App. 1998). The victim’s aggressive nature is admissible when offered by the accused under Rule 404(a)(2) to provide evidence of a pertinent character trait of a victim. Tex. R. Evid. 404(a)(2). The defendant may offer opinion or reputation testimony to prove that the deceased acted in conformity with his violent nature. Tex. R. Evid. 404(a)(2), 405(a); Tate, 981 S.W.2d at 192. Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant’s fear of danger, or to show that the deceased was the first aggressor. Torres, 71 S.W.3d at 760. Specific acts are admissible only to the extent that they are relevant for a purpose other than character conformity. Tex. R. Evid. 404(b); Mozon v. State, 991 S.W.2d 841, 845-46 (Tex. Crim. App. 1999).
Evidence offered under Rule 404(a)(2) is subject to the balancing test set forth in Rule 403 to determine its prejudicial value. Mozon, 991 S.W.2d at 847. Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
TEX. R. EVID. 403. In determining the admissibility of extraneous offenses of the victim, courts apply the same test regarding extraneous offenses of the defendant, which includes the following factors:
(1) how compellingly the objected-to evidence makes a fact of consequence more or less probable;
(2) the evidence’s potential to impress the jury in some irrational, but nevertheless indelible way;
(3) the time needed to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
(4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence to help establish this fact, and is this fact related to an issue in dispute.
See Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (op. on reh’g).
The State argues that the prior offense did not involve a weapon, there was no evidence that any physical assault occurred during the robbery, and no evidence that appellant knew about the victim’s past. The State also argues that the victim’s 1979 robbery conviction, which occurred 21 years prior to the murder, was remote in time; therefore, it was not relevant to show that the victim was the first aggressor. For support, the State relied on cases that analyzed the remoteness of an extraneous offense committed by the defendant. The issue here, however, is an extraneous offense committed by the victim, not by the defendant.
Appellant relied on Gonzales v. State, which held that the exclusion of evidence of the victim’s aggressive character was reversible error. 838 S.W.2d 848, 859-60 (Tex. App.—Houston [1st Dist.] 1992), pet. dism’d, improvidently granted, 864 S.W.2d 522 (Tex. Crim. App. 1993). In Gonzales, the trial court excluded evidence of the victim’s prior acts, which had occurred 18 or more years before the offense, because they were remote in time. 838 S.W.2d at 856-58. This Court held that the evidence was not excludable due to remoteness. Id. at 861.
In Gonzalez, this Court held that a “victim’s aggressive character is an essential element of the defense of self defense” and that “specific acts of misconduct are admissible in cases in which character or trait of character of a person is an essential element of a charge, claim, or defense.” Id. at 859 (citing former Tex. R. Crim. Evid. 405(b)). However, the court of criminal appeals criticized that language in Gonzales, holding that a “victim’s character is not an essential element of a claim of self-defense.” Tate v. State, 981 S.W.2d 189, 194 n.5 (Tex. Crim. App. 1998) (emphasis added).
The 1979 conviction occurred 21 years before the murder offense in this case and was remote in time. The trial court admitted the more recent 1983 conviction relating to the victim’s felony possession of a prohibited shotgun while on parole. The jury was aware of this later conviction and found appellant guilty. Given the remoteness of the 1979 conviction, we hold that the trial court did not err in excluding this evidence.
We overrule the first point of error.
Appellant’s Unadjudicated Assault
In the second point of error, appellant contends that the trial court erred in admitting evidence of appellant’s unadjudicated assault on a third party two weeks prior to the murder.
Stacy Thompson (“the roommate”) lived with appellant’s girlfriend, Mindy Glispin (“the girlfriend”). The roommate testified that appellant assaulted her about two weeks before the offense. She had told appellant about the victim’s plan to install a stove in the house that she shared with the girlfriend. Appellant became angry, grabbed the roommate by her neck, pushed her against the wall, and threatened to kill the victim if he came around the house. The trial court held:
With regard to the testimony, I will find that the testimony is relevant to the matters before this jury, that it is more probative than prejudicial, and that it may tend to rebut a defensive theory, and it may tend to present evidence to this jury as to motive and opportunity with regard to the offense that is charged.
One of the issues that is, at this point, based upon the testimony that’s been elicited at this point, it’s a hotly contested issue is the issue of intent or self-defense; and I’m going to permit it with regard to that matter.
I’ll give the jury an instruction. I certainly will give you a running objection with regard to all the testimony that will be elicited through Ms. Thompson; and I’ll give the jury an instruction, as well.
A defendant is entitled to be tried on the accusation made in the State’s pleadings and not on some collateral crime, or for being a criminal generally. Cantrell v. State, 731 S.W.2d 84, 88 (Tex. Crim. App. 1987). Such evidence is inherently prejudicial and the defendant’s alleged propensity to commit crimes is not material to whether he is guilty of the charged offense. Elkins v. State, 647 S.W.2d 663, 665 (Tex. Crim. App. 1983). Extraneous evidence may be admissible under the exceptions listed in Rule 404(b), which states:
Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
Tex. R. Evid. 404(b). These exceptions and others drawn from case law are neither exclusive nor exhaustive. Pondexter v. State, 942 S.W.2d 577, 583-84 (Tex. Crim. App. 1996). Extraneous offenses may be admissible to rebut a defensive theory. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994). For example, evidence of extraneous acts between a defendant and a third party are admissible in sexual abuse cases to rebut a defensive theory that the defendant was being framed. Moore v. State, 4 S.W.3d 269, 275 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Extraneous offenses may be admissible provided that the probative value is not substantially outweighed by any prejudicial effect. Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 378. The issue, therefore, is whether the evidence had any relevance in the trial of this case beyond its value as character evidence. Camp v. State, 925 S.W.2d 26, 32 (Tex. App.—Tyler 1995, pet. ref’d). If not, the evidence pertains to an extraneous offense and is inadmissible as a matter of law. Id.; see Tex. R. Evid. 404(b). As long as the trial court’s decision to admit evidence is within the “zone of reasonable disagreement,” there is no abuse of discretion. Montgomery, 810 S.W.2d at 391-92.
The State relied on cases which held that the defendant’s extraneous offense against the victim are admissible. The issue here, however, is whether a defendant’s extraneous offense against a third party is admissible. Appellant contends that the trial court improperly admitted his unadjudicated assault against a third party, the roommate. Specifically, he argues that the roommate’s testimony related to his assault is inadmissible. He does not complain about the admission of his threats to kill the victim. He concedes that he did not object to those threats at trial.
A defendant’s extraneous offense against a third party may be admissible in some circumstances. See Camp, 925 S.W.2d at 32. Appellant’s assault against the roommate, coupled with his threat to kill the victim, showed appellant’s jealousy of the victim’s dating appellant’s girlfriend. The evidence provided the jury with insight into appellant’s intent and motive for shooting the victim. Appellant’s conduct rebuts his claims that the victim was the first aggressor and that appellant acted in self defense. Therefore, the trial court did not abuse its discretion in admitting the evidence.
The trial court properly instructed the jury to consider the evidence for the limited purpose in determining preparation, motive, opportunity, or the rebuttal of any defensive theory, and for no other purpose. The jury instruction stated as follows:
You cannot consider testimony of the extraneous acts for any purpose unless you first find and believe beyond a reasonable doubt that the defendant committed any such extraneous acts, if any were committed, and even then, you may only consider the same in determining the preparation, motive, opportunity, or as the same may relate to the rebuttal of any defensive theory in connection with the offense alleged, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.
We overrule the second point of error.
Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Hedges, Jennings, and Evans.
Do not publish. Tex. R. App. P. 47.