Affirmed and Opinion filed July 11, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00542-CR
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GARY LEE HAWKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 840714
O P I N I O N
Appellant, Gary Lee Hawkins, was charged with capital murder. A jury convicted him, and the trial court assessed punishment at life in prison. In a single issue, appellant contends the trial court erred in excluding evidence that a witness had, on a prior occasion, falsely implicated another person for a robbery the witness committed. We affirm.
Background
Stanley White testified that on March 28, 2000, he met up with appellant and Melvin Pope at a friend’s house. Appellant told White that they wanted to “hit a lick,” or rob, a payroll van. The three of them then drove around for a time, and at one of their stops, appellant told White that Pope had money in his possession.[1] According to White, he and appellant then discussed robbing Pope. At their next stop, appellant exchanged a smaller handgun for a .357 caliber handgun. After the exchange, appellant got in the back seat of the car, with White in the front passenger seat, and Pope driving. According to White, appellant told Pope to stop because he needed to disgorge. Pope stopped the vehicle, and appellant exited the car. White stated that appellant then got back in the car and, as Pope put the car in gear, he, appellant, shot and killed Pope. White was charged with aggravated robbery for his part in the crime. In exchange for his testimony, he was to receive a sentencing recommendation from the district attorney.
Appellant’s trial counsel sought to introduce testimony from Donte Casey that White had falsely accused him, Casey, of committing a robbery of a Payless shoe store when it was really White who committed the crime.[2] Although Casey was allowed to testify that White’s reputation for truthfulness in the community was “probably bad,” the trial court refused to let him testify regarding the robbery.[3] On appeal, appellant contends that the trial court erred in disallowing the testimony under Rules 403 and 404 of the Texas Rules of Evidence and in violation of appellant’s constitutional rights to due process. See U.S. Const. amend. XIV, § 1; Tex. R. Evid. 403, 404.[4]
Exclusion of Evidence
We review a trial court’s decision to exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Thompson v. State, 44 S.W.3d 171, 174 (Tex. App.—Houston [14th Dist.] 2001, no pet.). The standard requires us to uphold a trial court’s admissibility decision when that decision is within “the zone of reasonable disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
Although somewhat convoluted, appellant’s brief appears to make two contentions: (1) Casey’s testimony, that White falsely accused him of robbery, is admissible to show that White has falsely accused appellant of murdering Pope; or (2) Casey’s testimony, regarding White’s involvement in the earlier robbery, is relevant to establishing White’s intent to murder Pope. We find merit in neither of these contentions.
The first argument is an attack on White’s credibility as a witness. Appellant’s brief states: “[a]ppellant sought to admit the evidence because the witness against him lied about his role in the offense, according to appellant’s testimony; the existence of a similar offense where White also lied to escape the consequences of his conduct substantially supported that position.” The rules governing the admissibility of credibility evidence are principally contained in article VI of the Texas Rules of Evidence. Rule 608(b) states: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” Tex. R. Evid. 608(b). The rule has been described as very restrictive and allowing for no exceptions. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990). But see 1 Steven Goode et al., Texas Practice Guide to the Texas Rules of Evidence: Civil & Criminal § 608.1, at 574 (2d ed. 1993) (explaining that specific acts may be proved for other purposes under other rules, such as to establish bias, rebut misrepresentation, or show lack of capacity).[5] Casey’s testimony that White lied in a particular instance was prohibited by the explicit language of Rule 608(b). Appellant’s brief does not provide any argument or authority under any other rule that could conceivably allow admission of the testimony about the allegedly false accusation. See Tex. R. App. P. 38.1(h) (“The brief must contain a clear and concise argument . . . with appropriate citations to authorities and to the record.”); Jackson v. State, 50 S.W.3d 579, 591 n.1 (Tex. App.—Fort Worth 2001, pet. ref’d) (when brief is devoid of any argument or supporting authority on alleged error, appellant waives the right to complain about the issue on appeal).
Appellant’s second possible argument, that evidence of White’s involvement in a robbery of a Payless shoe store is admissible as evidence relevant to show that White murdered Pope, can arguably be analyzed under Rule 404(b). See Tex. R. Evid. 404(b). Rule 404(b) states: “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 . . . .” Id. [6] In the trial court, defense counsel argued only that Casey’s testimony was admissible under Rule 404(b), specifically stating at one point: “It’s our position that we would be offered [sic] 404(b) prior relevant conduct on the part of Mr. White to show that he acted in conformity with it again.” The very language of Rule 404(b) prohibits that use of the evidence. See id.
On appeal, appellant additionally appears to argue that Casey’s testimony was admissible as evidence of intent. Intent is one of the exceptions listed in Rule 404(b) to the general rule of inadmissibility for other crimes, wrongs, or acts. See id. Casey testified in the offer of proof that White drove to the Payless shoe store and then entered the store with a gun. Casey further stated that “[White] wasn’t just the get-a-way [sic] driver.” Appellant, however, provides no rationale as to how this testimony is relevant to any intent to murder Pope, and we can discern no such rationale. Under Rule 404(b), evidence is not admissible simply because of its tendency to demonstrate a person’s general propensity for committing criminal acts. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Appellant makes no arguments regarding any other exception under Rule 404(b).[7] Accordingly, we find that the trial court did not abuse its discretion in refusing to admit Casey’s testimony under Rule 404(b).
Due Process
Appellant additionally contends that, in excluding Casey’s testimony, the trial court violated appellant’s constitutional right to due process by denying him the ability to present a defense. Certainly, the United States Constitution mandates that criminal defendants have “a meaningful opportunity to present a complete defense.” Gilmore v. Taylor, 508 U.S. 333, 343 (1993). However, a defendant’s right to present evidence is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998). A defendant has a right to present evidence of a defense “as long as the evidence is relevant and is not excluded by an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973); New Mexico v. Duncan, 830 P.2d 554, 558 (N. M. Ct. App. 1990); and Pennsylvania v. Greene, 366 A.2d 234, 237 (Pa. 1976)). As discussed above, Casey’s testimony was properly excluded under Rule 404(b)’s prohibition against using evidence of other acts to show character conformity and under Rule 608(b)’s prohibition against impeachment by specific conduct. Both are frequently cited, frequently followed, and well-established rules of evidence.[8] Accordingly, appellant’s constitutional arguments are without merit. The trial court did not abuse its discretion in excluding Casey’s testimony. We overrule appellant’s sole issue.
The judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed July 11, 2002.
Panel consists of Justices Yates, Seymore, and Guzman.
Do Not Publish — Tex. R. App. P. 47.3(b).
[1] Anna Marie Rice, Melvyn Pope’s roommate, testified that on March 28 she had given Pope $500 or $600 for the rent on their apartment and that Pope had counted this money in front of appellant.
[2] Trial counsel developed a bill of exception regarding the proffered testimony.
[3] The record does not demonstrate that the prosecution ever objected to the admission of evidence relating to the Payless shoe store robbery. Defense counsel asked about admissibility of the testimony prior to examining Casey in open court, and the judge said he would not allow it. The State did object as to relevance when defense counsel asked Casey if he had any knowledge whether White owned any firearms. The judge sustained the objection, and defense counsel passed the witness without attempting to ask any questions regarding the robbery. However, in the interests of justice, we will treat appellant’s complaint as having been preserved in the trial court. See generally Tex. R. Evid. 103(a)(2) (when evidence is excluded, party must make an offer of proof in order to preserve error); In re B.N.E., 927 S.W.2d 271, 273 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (once court excluded evidence, defendant’s only burden to preserve error was to make an offer of proof).
[4] Rule 403 simply states that even relevant evidence may be excluded under certain circumstances. Appellant cites the rule but makes no arguments based on it. We therefore do not consider whether Rule 403 has any bearing on this case. See Tex. R. App. P. 38.1(h) (“The brief must contain a clear and concise argument . . . with appropriate citations to authorities and to the record.”); see also Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.—Amarillo 2000, no pet.) (holding that conclusory statements unsupported by argument or authority are inadequately briefed, and thus are waived); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (same).
[5] Casey testified without objection regarding White’s reputation for truthfulness, as allowed under Rule 608(a). Rule 609 allows for impeachment of a witness through evidence that the witness had been convicted of a crime. The record from appellant’s offer of proof reveals that defense counsel was attempting to get evidence of White’s allegation against Casey admitted and not evidence that White had been convicted of any crime.
[6] Appellant cites no cases, and we have found none, permitting admission of extraneous offense evidence against a witness under Rule 404(b) in a criminal case. At least one court has suggested that Rule 404(b) can never be used to admit such evidence against a witness. See Russell v. State, 798 S.W.2d 632, 636 (Tex. App.—Fort Worth 1990, no pet.) (interpreting 404(b) as applying only to criminal defendants). However, we decline to adopt the broad exclusion embraced in Russell. First, it is conceivable that a criminal defendant could attempt to introduce evidence that a different person actually committed the crime and that evidence relevant to the defense could fit into one of the exceptions. Second, prior to the unification of the rules of evidence in Texas, the civil rules had a substantially similar provision. See Tex. R. Civ. Evid. 404(b); 1 Goode et al., supra § 404.6, at 88 (Supp. 2001). Last, the rule is still used in civil cases. See, e.g., Eris v. Phares, 39 S.W.3d 708, 717 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). In short, we do not agree with the Russell court’s suggestion that 404(b) should always be read as applying only to criminal defendants.
[7] Appellant may be attempting to argue that it is the evidence of the prior false accusation that is admissible under Rule 404(b). However, as explained above, such evidence is explicitly excluded under Rule 608(b). A specific rule of evidence controls over a more general rule. See Ballard v. State, 945 S.W.2d 902, 904 (Tex. App.—Beaumont 1997, no pet.) (holding specific evidentiary rule in theft statute controls over Rule 404(b)). Appellant makes no arguments related to Casey’s testimony that White had previously possessed a firearm of a caliber that may have been used to commit the murder.
[8] Texas Rule of Evidence 404(b) is substantially identical to Federal Rule of Evidence 404(b). Compare Tex. R. Evid. 404(b) with Fed. R. Evid. 404(b). The prohibition against impeachment by specific instances of conduct, currently contained in Rule 608(b), has been the rule in Texas criminal trials since 1951. 1 Goode et al., supra § 608.1, at 574.