IN THE
TENTH COURT OF APPEALS
No. 10-92-026-CR
RAYMOND BRIGHT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court # 91-05-11490-BCCR
O P I N I O N
Raymond Bright appeals his conviction for the aggravated sexual assault of his stepdaughter. Bright was found guilty by a jury, and the jury assessed punishment at ninety-five years in prison and a fine of $9,999.05. On appeal Bright complains of the admission of evidence of "other crimes, wrongs, or acts." Because the evidence had relevance apart from its tendency to prove that Bright acted in conformity with his character, we affirm.
In points one and three, Bright contends that, under Rules 401, 402, and 404(b) of the Texas Rules of Criminal Evidence, the trial court erred by allowing evidence of his prior violent conduct toward the complainant and his prior sexual misconduct with the complainant. In points two and four, Bright contends that the trial court erred in failing to state on the record its determination that the evidence had relevance apart from character conformity. He does not, however, contend that the evidence was inadmissible under Rule 403 because its probative value was "substantially outweighed by the danger of unfair prejudice."
During cross-examination of the victim the defense attorney played an audio tape recorded by the victim and sent to her mother several months prior to the trial. The following portion of the victim's statement was played for the jury:
I love you a lot, mom, and I just wish I could be there with you or you could be up here, which I know you don't want to be up here, and really I don't, either. I would like to be with ya'll and I want you to know that that stuff on that paper is not true. Everything that's on there is a lie and only the—I did sign it, but they tricked me into signing something for going to the stupid foster home. I don't know why they tricked me into that, so not to worry, if I have to testify, I'll tell them the truth, 'cause I—you know and I know nothing happened, and I know that he did not do all that other stuff they supposedly said he did. I just wish they would get it through their stupid heads that I don't lie.
The victim acknowledged that her tape recorded statement contradicted her testimony at trial. She explained, however, that at the time the tape was made she was upset.
On redirect examination of the victim, the prosecutor elicited the following testimony, which Bright complains of on appeal:
Q[K.B.], let's spend some time talking about your life. Were you afraid of Raymond Bright?
AYes, sir.
QAnd why were you afraid of Raymond Bright?
[Defense Attorney]: Objection, Your Honor. The District Attorney has not provided the Defendant any notice of any evidence he intends to introduce about anything other than what happened on June 30th, 1990.
[Prosecutor]: Your Honor, the door is now opened. He has questioned her credibility and I'm attempting to show the state of mind and all that she was working under at the time that this tape recording was made.
THE COURT: I'll allow it.
[Prosecutor]:
QWhy were you afraid of Raymond Bright?
ABecause he had beat me before.
QAll right. Had he ever used a firearm in your presence?
AYes, sir.
QHow had he used a firearm?
[Defense Attorney]: Objection, Your Honor. It's an evidentiary harpoon to get something before this evidence—before this jury that cannot be put in evidence in court, it's totally irrelevant to these proceedings here today.
[Prosecutor]: Your Honor, if he had not questioned her credibility, perhaps he would be right. Now that he has questioned her credibility, the State seeks to give all of the background evidence about all of the pressures that this young lady was working under.
THE COURT: All right. I'm going to allow it.
[Prosecutor]:
QHow had he threatened you with a firearm?
AHe had once put the gun—the barrel of the gun down my mouth.
QAll right. And after he did that, did he then shoot the gun?
AYes, sir.
QIt wasn't in your mouth when he shot it?
ANo, sir.
QWhat did he shoot?
AHe shot the refrigerator about three times, also the stool I was sitting on.
QAll right. And you—additionally, when you were almost twelve years of age, two weeks before—starting two weeks before your twelfth birthday, what began to happen between you and Raymond Bright?
[Defense Attorney]: Objection, Your Honor, the same as I have alleged before.
THE COURT: Overruled.
APlease repeat the question.
QDid something begin to happen between you and Raymond Bright two weeks before you were twelve years of age?
AYes, sir.
QWhat happened?
AHe then started raping me.
QAnd how often did he rape you?
AA couple of times a week.
Finally, the victim testified, without objection, that when Bright raped her, "He told [her] not to tell anybody or he would kill [her] whole family and, also, he was breaking [her] in."
Finding a piece of evidence "relevant" is the first step in a trial court's determination of whether the evidence should be admitted before the jury because "[a]ll relevant evidence is admissible . . . . Evidence which is not relevant is not admissible." "Relevant evidence" means evidence having any tendency 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. In deciding whether a particular piece of evidence is relevant, a trial court should ask, "would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit."
Under the rules of evidence, once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible under Rule 402 unless the opponent of the evidence demonstrates that is should be excluded because of some other provision, whether constitutional, statutory, or evidentiary.
Rule 404(b) is such a provision:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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, upon timely request by the accused, 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.
Extraneous offense evidence that logically serves any of the "other" purposes is "relevant" beyond its tendency to "prove the character of a person to show that he acted in conformity therewith." It is therefore admissible, subject only to the trial court's discretion to exclude it under Rule 403. On the other hand, if extraneous offense evidence is not "relevant" apart from supporting an inference of "character conformity," it is absolutely inadmissible under Rule 404(b).
When a party attempts to adduce evidence of "other crimes, wrongs, or acts" the opponent of that evidence, in order to preserve a complaint for appeal, must object in a timely fashion. Once that complaint is lodged, it is incumbent upon the proponent of the evidence to satisfy the trial court that the "other crime, wrong, or act" has relevance apart from its tendency "to prove -the character of a person in order to show that he acted in conformity therewith." The trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which evidence is ultimately admitted by the trial court. Because Bright never requested the court to articulate the "other purpose" for which the evidence was admitted, we overrule points of error two and four.
If the proponent persuades the trial court that evidence of "other crimes, wrongs, or acts" has relevance apart from character conformity, such as to rebut a defensive theory, the evidence should be admitted. The trial judge must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. In reviewing the trial court's decision whether to admit evidence under Rule 404(b), appellate courts uphold the trial court's ruling on appeal absent an "abuse of discretion."
In this case, the defense raised the issue of why the victim—after having recanted her original charges against Bright several months prior to trial—testified in support of the charges. The evidence in question was highly relevant to that issue because it included threats made by Bright as to what would happen to her family if the victim were to tell anybody what happened, as well as evidence showing that he was capable of carrying out those threats. We hold that such evidence, which would explain the basis of the victim's fear of telling the truth, was relevant and, therefore, properly admitted.
Although Bright argues on appeal that the relevance of his prior sexual misconduct and the relevance of his prior violent conduct should be evaluated independently and subjected to different analyses, his objection at trial to the evidence of prior sexual misconduct merely incorporated by reference his previous objection to the evidence of prior violent conduct without distinguishing the two types of extraneous conduct. Furthermore, the evidence of Bright's violent conduct was tied together with the evidence of his sexual misconduct by the victim's own testimony that when Bright raped her he threatened to kill her whole family if she told anybody. As a result, the evidence of both types of "other crimes, wrongs, or acts," are treated together on appeal. We overrule points of error one and three.
In points five, six, and seven, Bright contends that the admission of extraneous "crimes, wrongs, or acts" violated his right of confrontation under the sixth amendment of the United States Constitution, article I, section 10, of the Texas Constitution, and articles 1.05, 1.15, and 1.25 of the Texas Code of Criminal Procedure. Because Bright did not present this complaint to the trial court at the time he made his objection to the relevance of the evidence of extraneous "crimes, wrongs, or, acts," nothing is preserved for review. Therefore, we overrule points of error five through seven.
We affirm the judgment.
BOBBY L. CUMMINGS
Justice
Before Justice Cummings and
Justice Vance
(Chief Justice Thomas not participating)
Affirmed
Opinion delivered and filed January 6, 1993
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