In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00071-CR ______________________________
CLAYTON D. SIMMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2006-0209
Before Morriss, C.J., Carter and Cornelius,* JJ. Memorandum Opinion by Justice Carter *William J. Cornelius, C.J., Retired, Sitting by Assignment
MEMORANDUM OPINION
A Harrison County jury convicted Clayton D. Simmons of misdemeanor assault involving family violence. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). (1) The trial court sentenced Simmons to 365 days in jail, probated for twenty-four months, and a $4,000.00 fine. He appeals that conviction, contending the trial court abused its discretion by admitting improper character evidence through unadjudicated and extraneous offenses. He also maintains that, even if the trial court did not abuse its discretion by admitting such evidence, the trial court abused its discretion when it concluded that the probative value of such evidence outweighed its prejudicial effect pursuant to the balancing tests outlined in Rules 403 and 609. (2) We will reverse and remand the cause.
I. FACTUAL BACKGROUND
Simmons and his wife, Christie, were going through a rather contentious divorce at the end of the year 2005 and early part of 2006. Christie had filed her petition for divorce in November 2005 and, on January 13, 2006, Simmons filed his counterpetition for divorce seeking custody of the children.
The evidence adduced at trial depicted conflicting accounts of the events of January 17, 2006, four days after Simmons filed his counterpetition. According to Christie, Simmons had moved out of the house when the couple decided to separate. He came to the house unannounced that day between two and three o'clock in the afternoon to, perhaps, visit with one of their twin boys who was sick and had stayed home from school. Simmons and their son were chatting in a room near the back door when Christie noticed it was nearly time to go pick up the other children from school. When she went back to let Simmons know she had to leave, he asked if the two could talk. Fearing that he wanted to talk about the divorce and that she would likely get upset, she requested the two go outside to talk so their son would not have to hear the conversation.
She testified that Simmons began talking, and she told him that he was going to have to leave because she had to go pick up the children. Simmons, instead, continued to talk to her, eventually becoming angry and starting to curse. She insisted that he had to leave so that she could go pick up the children and made her way to the truck and sat down. As she sat in the driver's seat, Simmons had one arm on the hood and one arm on the open truck door as he continued to talk about the divorce. Christie decided to go get the son out of the house, but as she tried to get out of the truck, Simmons blocked her. He then "kind of" shoved her in the chest and knocked her back into the console of the truck. Simmons continued to yell and curse and moved away from the truck door, leading Christie to believe she could then get out of the truck. As she moved toward the door, Simmons slammed the truck door on her wrist, causing redness, pain, and swelling.
Christie reported the event to the Marshall Police Department after she picked the children up from school. She also reported the event to her divorce lawyer, who filed her application for protective order approximately eight days later, on January 25, 2005.
According to Simmons, he did, in fact, go over to the house January 17. He had locked himself out of his mother's house and needed to take a shower. Since he and Christie had been getting along fine, he decided to ask to shower over there and Christie permitted him to do so. He explained that he and Christie had been out to dinner within the few preceding days and had been discussing the divorce in a civil manner. After he took a shower, he went to ask if he could have a conversation with Christie. He, too, testified that Christie expressed a need to go pick up the children and noted that both parents wanted to talk outside the presence of the child at home.
Once outside and sitting in the truck, Christie complimented his new haircut and asked who had cut it. When he answered that a former friend of Christie had cut his hair, Christie became "extremely furious." Christie, who it seems had suspected her former friend of having some type of inappropriate relations with Simmons, then began hitting Simmons in the chest with her fists as Simmons stood by the open truck door. Simmons explained that he put his arm up to block the blows. Simmons stepped away from the open door as Christie gassed the vehicle to take off in a backward direction. As the front of the truck passed him, he knocked the hood of the truck and "flipped her off."
Based on the January 17 incident, Simmons was charged with assault involving family violence. Also based, in part, on the January 17 altercation, Christie filed an application for a protective order. It appears this application may have been abandoned at the end of January. (3) As a part of the divorce proceeding, Christie requested that Simmons take a drug test, which he failed.
At the trial on the assault charges, Simmons made clear that his defensive theory was that Christie had fabricated the allegations of assault so as to gain an advantage in the divorce and child custody matters. He made that argument in his opening statement to the jury and cross-examined Christie on her previous accounts of January 17, pointing out the inconsistencies in her testimony, police report, and affidavit in support of her application for a protective order.
II. APPLICABLE LAW
A. Rule 404(b)
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. Tex. R. Evid. 404; Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990) (op. on reh'g). 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, on 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; Powell, 63 S.W.3d at 438.
The list included in Rule 404(b) is not exhaustive. "If it were intended for the Rule to allow an exception only for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, then it would not have included the phrase 'other purposes, such as . . . .'" Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006). This language makes clear there are additional "other purposes" for which evidence of prior acts may be admitted. Id. It is well established that one of those other purposes is rebutting a defensive theory. (4) See Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002); Taylor v. State, 920 S.W.2d 319, 321 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 388. The Texas Court of Criminal Appeals has stated that "evidence will be relevant to a material issue if the purpose for which the party seeks to have it submitted tends to make 'the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Smith v. State, 5 S.W.3d 673, 679 n.13 (Tex. Crim. App. 1999); Rankin v. State, 974 S.W.2d 707, 718-19 (Tex. Crim. App. 1996) (op. on reh'g). The range of material issues in each case will depend on the theories of the prosecution and the defense in that case. See Garcia, 201 S.W.3d at 703; Smith, 5 S.W.3d at 679 n.13.
B. Standards of Review
We review a trial court's ruling on the admissibility of evidence under Rule 404(b) for an abuse of discretion. Powell, 63 S.W.3d at 438.
III. ANALYSIS
A. Evidence That Simmons Failed a Drug Test
Evidence that Simmons failed a drug test associated with the divorce proceedings came into evidence unexpectedly as Christie responded to defense counsel's cross-examination on her recollection of the filing of Simmons' counterpetition seeking custody of the couple's three children:
[Defense Counsel:] Okay. Now, when did you receive his paperwork that stated that he was asking to be appointed the managing conservator with the obligation to establish the primary residence of the children?
[Christie:] I don't recall ever receiving that.
[Defense Counsel:] When did you find that out?
[Christie:] I don't recall having to fight for that.
[Defense Counsel:] Ma'am?
[Christie:] I don't recall him asking for custody.
[Defense Counsel:] You don't?
[Christie:] No. It was never any - -
[Defense Counsel:] Are you clear about that? Your lawyer didn't tell you? You didn't get served?
[Christie:] I don't recall any of that. No.
[Defense Counsel:] Okay. You recall a great deal of other things, but you don't recall any of this about him - -
[Christie:] I recall him getting a lawyer, yes. And I recall when he failed the drug test, there was no doubt about what was going to happen.
[Defense Counsel:] Your Honor, may we approach?
[Christie:] There was no way he was going to get custody.
[Defense Counsel:] Your Honor, may we approach?
After Christie's nonresponsive answer and comment came in during cross-examination, defense counsel objected to the statement as nonresponsive and that it interjected extraneous bad acts. A lengthy discussion ensued outside the presence of the jury. The trial court stated that, if the drug testing occurred before Simmons' counterpetition, it seemed to be relevant. The trial court concluded that the failure of the drug test was relevant to undermine the defensive theory that Christie fabricated the allegations to impact the child custody issues. At the end of the discussion, the trial court overruled the objections and denied defense counsel's request for an instruction to disregard the testimony concerning the drug test and also denied defense counsel's motion for mistrial.
1. Timing and relevance of drug test results
As Christie's comment following defense counsel's request to approach the bench demonstrates, it appears Christie was not concerned with any possibility that Simmons would get custody of the children. From the argument that followed, it appeared the State took the position that the evidence was relevant to undermine the theory that Christie fabricated the allegations to damage Simmons' attempt to get custody of the children.
During the time the trial court was considering objections to the drug test evidence, Simmons stated the drug test occurred after the January 17 incident. At a later stage of the trial, evidence was admitted that the drug test was taken January 30, 2006. This was approximately two to three weeks after Christie reported the assault and gave a written statement to the police. It was also about two weeks after Christie made the allegations in her affidavit in support of her application for protective order. We conclude that the timing of the test results make it considerably less likely that the results of the drug test would provide Christie with any assurance, at the time she made the allegations that Simmons assaulted her January 17, that Simmons had no chance of obtaining custody of the children.
The record demonstrates that Christie reported the assault shortly after it occurred January 17 and that her divorce lawyer filed her application for a protective order January 25. Thus, it appears the failure of the drug test January 30 would not be relevant to undermine the defensive theory that Christie fabricated the allegations of the assault two to three weeks earlier. Simply put, she could not have known about the drug test results at the time she made statements to the police and signed the affidavit for a protective order. Therefore, the evidence Simmons failed the drug test weeks after the allegation of assault lends no relevance beyond demonstrating poor character through a prior bad act, the very purpose prohibited by Rule 404(b).
2. Harm analysis
When reviewing nonconstitutional error, we must disregard the error when it does not affect substantial rights. Tex. R. App. P. 44.2(b); Tex. R. Evid. 103(a). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A particular error does not affect a substantial right if "the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight affect." Gray v. State, 233 S.W.3d 295, 299 (Tex. Crim. App. 2007) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). To assess the likelihood that the jury's decision was adversely affected by the erroneous admission of evidence, we consider the entire record, including the other evidence admitted, the nature of the evidence supporting the verdict, and the character of the error in light of the other evidence in the case. See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002). We also consider the arguments of counsel and the extent to which the State emphasized the improper evidence. See id. at 357.
Here, we note that the evidence concerning the drug test results came in unexpectedly during cross-examination. That is, the State did not purposely elicit Christie's testimony on the results and, subsequently, did not elicit any further testimony from Christie. The next mention of the drug test results came from Simmons, who explained he had been ill and had also been taking antidepressants for a period during the divorce. He admitted that, in his past, he had used drugs, but denied using illegal drugs now. He added he was subject to drug testing at his job in the healthcare field. He explained that, when the extraordinarily high levels came in from that test, he went to get another test done the very same day. The implication is that prescription medications skewed the test results. He also testified he has passed all of the several other drug tests he has taken, including a more comprehensive hair analysis. On cross-examination, the State pointed out that the results were extremely high for methamphetamine and opiates and questioned Simmons about not bringing in an expert to testify about later results:
[State:] I'm just talking about -- regardless of any experts, just mathematically speaking it is 400 times higher than the cut-off.
[Simmons:] Okay.
[State:] And you said you were told by folks at the testing facility, maybe your doctor - - where are you getting this knowledge that something else could have caused this or triggered this positive reading?
[Simmons:] The medical review officer at the clinic.
[State]: And you realize that this is going to be something that - - I know if I was sitting on that jury panel, I would think that is very serious.
[Simmons:] Sure, it is serious.
[State:] A very serious issue in this case.
[Simmons:] Yes.
[State:] And this is the day of your trial. Do you have anybody here who is going to come testify that is a medical expert, doctor, pathologist, toxicologist to let this jury know that, yes, that is possible that anti-depressants caused that reading? Do you have anybody here to give that testimony or just is this just stuff you heard through the grapevine?
[Simmons:] Today?
[State:] Yes, today. Anybody coming to testify?
[Simmons:] I didn't know this was going to be brought up.
The State then left the topic and returned to more issues of past infidelity having occurred in 1999 while the couple was married and relating little to the assault.
During argument to the jury, the State again mentioned the failure of the drug test: "Think of the drug results. Two weeks after this occurred, he is off the charts for a drug test. And he claims in this flimsy testimony, oh, it was some anti-depressants I was on." Defense counsel answered that argument:
We've heard things in the divorce about drug use. My client said, yeah, I've used drugs in the past. I used them with her. And, yeah, I took a drug test. I've taken [a] lot of drug tests since then. I take drug tests at work when I'm required to do so. I don't know what - - why that drug test came back, but I ran and had another one done and I've had drug tests ever since then. Nothing. This is not a case about drugs, ladies and gentlemen. That's just a bias and a prejudice they are trying to use against my client.
On rebuttal, the State revisited the issue:
Flunks a drug test. Mr. Solomon wants you to say, "Hey, you've got to believe that beyond a reasonable doubt." He admitted that he did it; and if he's passed all these other ones, once again, where are they? Why didn't he bring those and say, "Hey, Jurors, I've ten other ones I passed." Oh, no, they don't have the burden. Once they put it out there, Folks, you've got to believe it. If you don't believe it, hold it against them. Don't let them sit there and go, "Oh, we don't have the burden. We can just throw this junk up here. We can just say she did this and we don't really have to prove it. We can just say she did it and you ought to believe it because, guess what, we don't have the burden." Wrong. That's not the way it works. This is not the way it works.
From this excerpt, it appears the State's argument centers on whether Simmons did or did not use drugs, allegations entirely separate from the charges of an assault. While several misdeeds and character flaws were raised by both sides during trial, it is during argument that the strongest emphasis was placed on Simmons' drug use, which had no relevance other than to demonstrate he had committed another crime.
Even though the State did not originally seek to introduce the drug test evidence, the State warmly embraced such evidence and emphasized it throughout the trial. It cannot be concluded this emphasis was justified, because Simmons attempted to answer and explain the inadmissible evidence. A party has the right to explain or rebut inadmissible evidence to which he or she has objected and been overruled by the trial court. If the testimony is inadmissible, an attempt to minimize its impact does not forfeit a right to complain of the inadmissible evidence or authorize the State to continue to emphasize it. See Maynard v. State, 685 S.W.2d 60, 66 (Tex. Crim. App. 1985); Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973).
The trial court gave a general limiting instruction in the jury charge as to evidence of other crimes or wrongful acts, even though the drug test evidence was admitted without limitation. Conceivably, the limiting instruction in the jury charge related to the evidence of another extraneous offense, the alleged prior altercation. Regardless of any instruction, the State made great effort to connect the drug test results to the assault by arguing to the jury that "[t]wo weeks after this occurred, he is off the charts for a drug test." The State then argued to the jury about burdens of proof in such a way as to direct the jury's attention to the drug test results. We add that the State continued to stress to the jury that Simmons did not bring an expert witness on the issue of the drug test results despite the obvious surprise at having to defend any allegations relating to drug use. Further, during its cross-examination of Simmons, the State twice commented that the failed drug test was a "very serious issue" for the jury in this case.
As to the strength of the State's evidence, we note this was a classic swearing match between the only two witnesses to the event; the complainant alleged facts constituting an assault, while the defendant denied such an attack. Further, these parties had recently been involved in an apparently bitter divorce proceeding involving custody of the children. Having considered the entire record, the nature of the evidence of the drug test evidence in light of the other evidence and the degree to which the State emphasized the drug test results, we cannot say we are fairly assured the error in admitting the evidence did not influence the jury. Nor can we say the highly-emphasized evidence had but a slight effect. We sustain this point of error.
Since this issue is dispositive of this appeal, we need not address the other evidentiary issues raised by Simmons. We reverse the trial court's judgment and remand the case for a new trial.
Jack Carter
Justice
Date Submitted: October 31, 2007
Date Decided: December 14, 2007
Do Not Publish
1. Although an assault on a family member is generally a class A misdemeanor, a second conviction for assault on a family member is considered a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2007). There is no such evidence for enhancement in the instant case.
2. See Tex. R. Evid. 403, 609.
3. There was significant dispute over whether Christie effectively abandoned her application
for a protective order or whether the family court judge refused to issue a protective order based on
uncontroverted evidence that Christie visited Simmons at his home after the alleged assault. There
is nothing in the record before us that would definitively provide an answer to this dispute.
4. Since Simmons presented his defensive theory in his opening statement to the jury and
developed it during cross-examination of the State's first witness, the State was allowed to introduce
evidence to rebut the defensive theory during its case-in-chief. See Powell, 63 S.W.3d at 438-39.