Bryan Keith Johnson v. State

Johnson-BK

IN THE

TENTH COURT OF APPEALS

No. 10-95-017-CR

        BRYAN KEITH JOHNSON,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-497-C

                                                                                                    

SUPPLEMENTAL OPINION ON PETITION

FOR DISCRETIONARY REVIEW

                                                                                                    

          Our original opinion was issued on August 14, 1996. Johnson v. State, 933 S.W.2d 195 (Tex. App.—Waco 1996, pet. filed). The State's Petitions for Discretionary Review assail us for failing to consider its assertion that the testimony about S.M.'s prior sexual activity was properly excluded because of Rule 403. Tex. R. Crim. Evid. 403. We offer the following explanation as allowed by Rule 101. Tex. R. App. P. 101.

          We reject the Rule 403 assertion for several reasons. First, the State's motion in limine, filed before trial in an attempt to keep the testimony in question from the jury, does not mention Rule 403. Second, the State made no Rule 403 objection when the testimony was adduced outside of the presence of the jury. Two references to the testimony being "prejudicial" are the closest that the record comes to such an objection. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (on rehearing) ("Further objection based upon Rule 403 is now required."). Third, we review rulings of the trial court, and the court made no attempt to balance the probative value of the testimony against the danger of unfair prejudice, confusion of the issues, or any other factor listed in Rule 403. Tex. R. Crim. Evid. 403. Fourth, the matter was barely mentioned in the State's brief on original submission. In fact, the entire presentation of the Rule 403 argument is contained in seven lines at page 14 of the State's Brief and includes no analysis.

          We might have considered the provisions of Rule 403 in conducting the harm analysis. We determined that the court erred in failing to allow relevant evidence of prior sexual activity of the prosecutrix, then determined that the error had harmed Johnson because the erroneous ruling denied him evidence of a statutory defense provided by the legislature. Johnson, 933 S.W.2d at 203. Had we inserted a Rule 403 factor into the harm equation, we would have reached the same result, i.e., that exclusion of the evidence required reversal because of the absence of the defensive theory from the jury's deliberations. Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989); Tex. R. App. P. 81(b)(2). Applying the factors set out in Montgomery to our harm analysis, we find initially that the "approach under Rule 403 is to admit relevant evidence unless the probative value of that relevant evidence is substantially outweighed by the danger of unfair prejudice . . . ." Montgomery, 810 S.W.2d at 389. Johnson's need for the testimony to raise the defense of promiscuity was great—no other evidence of promiscuity is in the record. The State has not demonstrated how the testimony is unfairly prejudicial to it, particularly in light of the fact that the defense to which the testimony was relevant was a statutory defense. Indeed, the State did not argue that the testimony was "unfairly prejudicial," as stated in the Rule; only that it was "prejudicial." Additionally, the rule requires that the unfair prejudice substantially outweigh the probative value of the proffered testimony. Tex. R. Crim. Evid. 403. For these reasons, we would have reached the same conclusion about harm, had we considered a properly presented Rule 403 argument.

          Finally, the State argues that the defense of promiscuity is not consistent with Johnson's theory of the case, as demonstrated by his testimony that he "was elsewhere in the school building." We review a trial court's evidentiary rulings as of the time that the court made the ruling. The court excluded testimony about the prosecutrix' prior sexual activity during the State's case-in-chief. Johnson had not elected to testify as of that point in time. Further, we allow defendants to submit defensive theories alternatively.

          With these additional comments, we reaffirm our original position that the judgment in this case be reversed and a new trial ordered.

 

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

          (Justice Cummings dissents without further opinion)

Opinion delivered and filed February 5, 1997

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fy;text-indent:.5in;line-height:200%'>As we have noted, in a legal sufficiency review, we do not resolve conflicts of fact or assign credibility to the witnesses, and inconsistencies in the evidence are resolved in favor of the verdict.  See Curry, 30 S.W.3d at 406; Dewberry, 4 S.W.3d at 740.  Applying this standard, we find that a rational jury could have credited the evidence showing that Jason lived at 1321 Spring Street and disregarded the contrary evidence to find that he exercised joint control over the cocaine and the gun and find him guilty beyond a reasonable doubt.  Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (We are in the position of a final, due process safeguard, ensuring only the rationality of the fact finder.); Cude, 716 S.W.2d at 47.  We thus reject his contentions that the evidence is legally insufficient.

            Related to factual sufficiency, our task is to review the evidence weighed by the jury that tends to prove the existence of the elemental fact of knowing possession and compare it with the evidence that tends to disprove that fact.”  Johnson, 23 S.W.3d at 7.  Again, we do not indulge in inferences or confine our view to only the evidence favoring one side of the case.  Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment.  Id.  Utilizing this standard in a neutral review, we cannot find that the evidence demonstrates either that the proof tending to show that Jason was affirmatively linked to the cocaine and the gun is so weak or that conflicting evidence that he had little connection to the residence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust.  Watson, 204 S.W.3d at 414-15; see also Bollinger, 224 S.W.3d at 774-75; Brown, 911 S.W.3d at 747.  Thus, we reject Jason’s factual sufficiency complaints.

            We overrule issues one and two.

CONCLUSION

            Having rejected Jason’s issues, we affirm the judgment.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 1, 2007

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[CR25]

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[1] Kevin identified a bill in Jason’s name from the city of Waco for water and sewer service at the residence.  He said he gave Jason the money to turn the lights, water, sewer, and cable service on and that the phones were in his cousin’s name.