IN THE
TENTH COURT OF APPEALS
No. 10-98-359-CR
GENE WILLIAMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Madison County, Texas
Trial Court # 10,148-B
DISSENTING OPINION
Gene Williams was indicted and tried for assault on a correctional officer. The indictment alleged that Williams “acting together [with Desmond Martin], did then and there intentionally and knowingly cause bodily injury to Andy Casey, by striking him in the head with their fists, and the defendants knew that the said Andy Casey was then and there a public servant, to-wit: a correctional officer....” Williams and Martin are both in prison. Casey is a prison guard.
The testimony was that as the result of Martin allegedly masturbating in the day room, he was being escorted back to his cell by Casey. Martin denied the incident and used profanity and made various accusations against Casey in route back to his cell. As Martin was entering his cell and Casey was continuing down the cat-walk outside the cell and behind Martin, Casey testified that Martin turned, raised his hand and told Casey to “Start leaving him the fuck alone and get off his back all the time.” Casey ordered Martin to lower his hand. Martin refused. Martin then attempted to hit Casey with the raised hand, which was blocked by Casey, but Martin struck Casey in the face with his other hand.
Unknown to Casey, when Martin’s cell door was opened the adjacent cell also opened. This was the cell door to Williams’s cell. Williams left his cell and struck Casey from behind on the head. The force of the blow was so hard that Casey’s legs gave way and he fell to his knees. Both assailants then proceeded to strike him on the head with their fists. Eventually Casey was down on all fours being attacked by the two prisoners. During the struggle, Casey looked up and was able to determine the identity of the assailant who attacked him from behind, Williams. As other guards could be heard running to the scene of the “fight” and the doors to the cells were closing, Casey was able to shove Martin back into his cell and observe Williams retreating to his.
If the State was attempting to inflame the jury with the alleged masturbation of Martin, they did a very poor job of it. They only raised it as the basis for explaining why Casey was having to escort Martin to his cell from the day room. It also provided the context for the profanity and accusations being made by Martin against Casey while in route to the cell and immediately prior to the incident. As the majority notes, the State only referred to the incident once in their opening and once in their closing arguments and did not use the term “masturbation.” It was referred to by the much more general phrase, “sexual misconduct.”
As the State argued to the trial court in the pre-trial hearing to suppress introduction of the alleged sexual misconduct, it was the incident which in an unbroken chain of events ended with the assault on Casey. There was no question that it was not Williams that was engaged in the conduct and thus no chance of the jury being confused about who was being tried for what offense. To show the full context of the events the State is allowed some latitude regarding what evidence is admissible. See generally, Christopher v. State, 833 S.W.2d 526 (Tex. Crim. App. 1992); Couret v. State, 792 S.W.2d 106 (Tex. Crim. App. 1990); Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985). I would hold that the evidence was properly admitted over both the relevancy objection and the objection that the probative value was outweighed by the prejudicial effect.
Further, Williams introduced evidence that it was Texas Department of Criminal Justice policy to have two guards, one equipped with a video camera, to escort a prisoner back to his cell after an alleged disciplinary violation. Williams also established that masturbation in the day room was a disciplinary violation. Williams established the policy requiring a video escort was violated in this instance, in an effort to create doubt that the sexual misconduct incident occurred. This testimony had the effect of further distancing the sexual misconduct of Martin from the assault of Casey by Williams.
Finally, having reviewed the entire record of the proceedings from voir dire to verdict, I cannot agree that, if it was error, that it in any way contributed to the guilty verdict or the sentence. I would hold that the error, if any, was harmless.
For the reasons stated, I respectfully dissent from the majority’s opinion and judgment.
TOM GRAY
Justice
Dissenting opinion delivered and filed August 30, 2000
Publish