Affirmed and Memorandum Opinion filed June 26, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-01-01197-CR
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RICHARD MILLER WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 841,603
M E M O R A N D U M O P I N I O N
Appellant, Richard Miller Walker, was convicted by a jury of murder. In four points of error, appellant claims: (1) section 19.02(d) of the Penal Code violates due process of law; (2) the trial court erred in refusing to place the burden on the State to disprove that appellant acted with Asudden passion arising from an adequate cause@ as requested by the defense; (3) the trial court erred in permitting the prosecution to cross-examine appellant as to an extraneous offense; and (4) the trial court erred in refusing to allow defense counsel to make opening and concluding final argument at the sentencing phase of trial. We affirm.
Background
The appellant and complainant, Aneeka Dawn Walker, were married in July of 1984 and resided at a home on Drexel Street in Houston. In 1996, the couple began experiencing marital problems after the appellant learned the complainant allegedly had an extra-marital affair. According to Snezana Ortega, the appellant=s secretary, appellant became obsessed with the infidelity. The couple divorced in December of 1999.
On April 5, 2000, the Wednesday before the fatal shooting, the appellant went to the family home. He discovered a man in the complainant=s bedroom closet and became enraged. The appellant repeatedly kicked the man and punched the complainant in the face numerous times. The following Saturday, April 8, appellant picked up his children to take them to his family=s farm in Caldwell, Texas. He took his .9 millimeter pistol with him.
On April 10, 2000, witnesses reported hearing a gun shot at the Drexel residence and then seeing appellant exit his home carrying a brown paper bag. At approximately 12:30 p.m., appellant telephoned Ortega and stated, AI just killed Aneeka.@ He told her that he had fired eight shots into the complainant=s head. Ortega then notified the appellant=s parents, who went to the Drexel residence and observed the complainant=s car parked outside. During a telephone conversation with his parents, the appellant told his father not to go inside or to call the police.
The following day, appellant=s parents met with an attorney who then contacted the Houston Police Department. The police went to the Drexel residence where they found the complainant=s body in an upstairs room. Physical evidence showed that four shots had been fired from a .9 millimeter Glock pistol owned by appellant. He was subsequently indicted and convicted of murder.
At the punishment phase of trial, the trial court submitted the following special issue to the jury:
Do you the Jury find by a preponderance of the evidence that the defendant caused the death of Anneka Dawn Walker under the immediate influence of sudden passion arising from an adequate cause?
The jury answered, AWe do not,@ and sentenced appellant to a term of 75 years= confinement and a fine of $10,000.
Constitutionality of ' 19.02(d)
In appellant=s first point of error he claims section 19.02(d) of the Penal Code is unconstitutional in that it violates due process of law by placing the burden on the defendant to prove by a preponderance of the evidence Asudden passion arising from an adequate cause.@ Appellant=s second point of error alleges the trial court erred in refusing to place the burden on the State to disprove that the defendant acted with Asudden passion arising from an adequate cause@ as requested by the defense.
Under the 1974 Penal Code, the State had the burden of disproving sudden passion when the issue was raised. See Nance v. State, 807 S.W.2d 855, 860 (Tex. App.CCorpus Christi 1991, pet. ref=d). In 1993, the Texas Legislature repealed the offense of voluntary manslaughter, in which the State had to prove that the defendant caused death under the immediate influence of sudden passion arising from an adequate cause, and added the language in 19.02(d) requiring the defendant to prove sudden passion during the punishment phase to reduce murder to a second degree felony. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, ' 1.01, 1993 Tex. Gen. Laws 3586, 3613-14.
Texas courts have consistently upheld the constitutionality of section 19.02 relying primarily on Patterson v. New York, 432 U.S. 197 (1977). See Leifester v. State, 2001 WL 1587407, at *4 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d) (not designated for publication); Vasquez v. State, 2 S.W.3d 355, 361 (Tex. App.CSan Antonio 1999, pet. ref=d); Green v. State, 971 S.W.2d 639, 644 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); Robinson v. State, 945 S.W.2d 336, 341 (Tex. App.CAustin 1997, pet. ref=d) (case of first impression regarding constitutionality of section 19.02(d)). In Patterson, the United States Supreme Court upheld the constitutionality of a New York murder statute similar to section 19.02. The New York statute provided for an affirmative defense where the defendant Aacted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.@ Patterson, 432 U.S. at 198 n. 2. The Supreme Court held that Aall circumstances of excuse or alleviation rested on the defendant.@ Id. at 202. Finding no distinction between the affirmative defense the defendant had the burden of proving in Patterson and section 19.02(d), Texas courts have found that section 19.02(d) does not violate the due process clause of the United States Constitution or the Texas Constitution. Vasquez, 2 S.W.3d at 362 (placing burden on defendant to prove sudden passion is constitutional).
Appellant argues, however, the recent United States Supreme Court decision in Apprendi calls the constitutionality of section 19.02 into question. Apprendi v. New Jersey, 530 U.S. 465 (2000). We disagree. The Court held in Apprendi that Aother than a fact of prior conviction, any fact that increases the penalty for crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.@ Id. at 492. The New Jersey statute allowed a jury to convict a defendant of a second degree offense based on its finding beyond a reasonable doubt that the defendant illegally possessed a weapon. A subsequent and separate proceeding was then held for the judge to determine, by a preponderance of the evidence, if the defendant possessed the weapon with an intent to intimidate victims on the basis of personal characteristics, such as race. If the judge found in the affirmative, he or she may then impose a punishment equivalent to a first degree offense. The proper inquiry, therefore, is whether the required finding exposes the defendant to a greater punishment than that authorized by the jury=s guilty verdict. Basso v. State, No. 73,672, slip op. at 31, 2003 WL 1702283, at *18 (Tex. Crim. App., Jan. 15, 2003) (finding that under Article 37.071, there is no authorized increase in punishment contingent on the jury=s finding on the mitigation special issue). Here, we find that it does not.
In contrast to the New Jersey statute, section 19.02(d) does not place a burden on a defendant on an issue increasing the punishment range. Rather, it gives the defendant an opportunity to decrease the applicable range of punishment. The Constitution does not prohibit the state from putting the burden on the defendant to prove an issue in mitigation of punishment. See Vasquez, 2 S.W.3d at 361; Fleming v. State, 956 S.W.2d 620, 622 (Tex. App.CEastland 1997, pet ref=d); Jones v. State, 955 S.W.2d 438, 440 (Tex. App.CFort Worth 1997, pet. ref=d). Therefore, Apprendi is inapplicable.
Appellant=s first and second points of error are overruled.
Extraneous Evidence
In his third point of error, appellant contends the trial court erred in allowing the State to cross-examine him about an extraneous offense that was inadmissible and not supported by any proof admitted at trial. The complained of testimony is as follows:
Q: Sir, do you recall an incident where in an attempt to get her (complainant) to confess to this affair, you put a gun to her head? Did that happen?
A: No.
Q: Never happened?
A: No.
Q: You were never that angry, sir, that you would take one of those guns that you often had out at the ranch and put it to her head?
A: No.
Q: Just didn=t happen?
A: Did not.
1. Notice
Appellant correctly points out that the State=s ASixth Amended Notice of Intent Under Rule 404(b), Rule 609, Tex. Crim. Proc. Art. 38.36 and 37.07 and Rebuttal@ failed to include notice with regards to a prior incident wherein the appellant held a gun to complainant=s head. However, appellant did not object at trial to the State=s failure to give notice of its intent to introduce an extraneous offense. Appellant=s only objection was that the evidence had not been shown admissible under Texas Rule of Evidence 403. To preserve error for appeal, an appellant=s objection on appeal must comport with his objection in the trial court. See Knox v. State, 934 S.W.2d 678, 787 (Tex. Crim. App. 1996). Because appellant did not object to the extraneous offense evidence on the basis of lack of notice, appellant did not preserve this complaint for review.
2. Character Evidence
Appellant did, however, object to the evidence as being both improper and prejudicial.[1] Evidence of an extraneous offense may be admitted if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. See Tex. R. Evid. 404(b). Such evidence has relevance apart from character conformity when it tends to establish some elemental fact, such as identity or intent. See Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990); Aitch v. State, 879 S.W.2d 167, 174 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). Although relevant, such evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. This analysis is to be conducted by the trial judge in light of the unique facts and circumstances of each case, and will not be disturbed on appeal unless it is outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391.
Whether or not appellant had offered evidence in mitigation at the time the extraneous offense was admitted, the State was required to show intent as an element of the charged offense. See Tex. Penal Code Ann. ' 19.02(b)(1) (Vernon 1994). In a prosecution for murder, the State or the defendant may Aoffer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.@ Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 2003). Testimony regarding appellant=s prior holding of a gun to the complainant=s head clearly is probative of the relationship between appellant and the complainant and appellant=s state of mind at the time of the offense, and therefore is relevant apart from character conformity.
Once evidence is determined to be relevant, it is admissible unless the unfair prejudicial effect of the evidence substantially outweighs its probative value. See Tex. R. Evid. 403. All evidence is prejudicial to the opposing party to some extent. To prove error in admission of evidence, appellant must show that it was unduly prejudicial, and that its probative value is substantially outweighed by the danger of unfair prejudice. See Montgomery, 810 S.W.2d at 377-78. Rule 403 favors the admissibility of relevant evidence, Aand the presumption is that relevant evidence will be more probative than prejudicial.@ Id. at 389. Thus, Atrial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.@ Id.
Factors relevant to balancing the probative value of extraneous offenses include the similarity between the prior act and the offense charged, the closeness in time of the extraneous transaction to the charged offense, and the availability of alternative sources of proof. See Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985). In the present case, appellant=s prior wielding of a gun against complainant indicates the offense was not an isolated act of sudden passion. See Sattiewhite v. State, 786 S.W.2d 271, 285 (Tex. Crim. App. 1989). Absent evidence of appellant=s prior assaultive conduct toward complainant, the jury would have been deprived of important information concerning the nature of the couple=s relationship. These factors, coupled with the short duration of the exchange and appellant=s denial of the incident, support the trial court=s conclusion that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Green, 971 S.W.2d at 645. Point of error three is overruled.
Final Arguments
In appellant=s fourth point of error, he contends the trial court erred in refusing to allow defense counsel to make the opening and concluding final argument at the sentencing phase of the trial, when appellant had the burden of proof to establish Asudden passion.@ The order of argument of counsel is within the discretion of and may be regulated by the trial court, except that counsel for the State shall have the right to make the concluding address to the jury. Tex. Code. Crim. Pro. Ann. art. 36.07 (Vernon 1981); Nelson v. State, 828 S.W.2d 185, 187 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d). It has long been the rule in Texas that the State has the right to make the closing argument to the jury at the punishment phase. See Garcia v. State, 537 S.W.2d 930 (Tex. Crim. App. 1976). Further, in Martinez v. State, 501 S.W.2d 130 (Tex. Crim. App. 1973), the Court of Criminal Appeals found the defendant was not entitled to open and close jury arguments even where the defendant had the burden of proving the affirmative defense of insanity.
Appellant argues, however, that the instant case is distinguishable from Martinez in that it deals with the punishment phase, rather than the guilt/innocence phase, of trial. He notes that the Martinez court reasoned that although the defendant bears the burden of establishing the defense of insanity by a preponderance of the evidence, the State still must prove the defendant=s guilt beyond a reasonable doubt. See id. at 131. We find the rationale in Martinez applicable here. As noted above, the court=s charge at the punishment phase included a special issue on sudden passion, which the defense had the burden of proving by a preponderance of the evidence. The charge also included an instruction on extraneous offenses, which the State was required to prove beyond a reasonable doubt. Given the dual burdens of proof, we find the trial court did not abuse its discretion in denying appellant=s request to make the opening and concluding argument at the punishment phase. Accordingly, appellant=s fourth point of error is overruled.
There being no reversible error, the judgment of the trial court is affirmed.[2]
/s/ Leslie Brock Yates
Justice
Judgment rendered and Opinion filed June 26, 2003.
Panel consists of Justices Yates, Frost, and Draughn.[3]
Do Not Publish C Tex. R. App. P. 47.3(b).
[1] Appellant argues the State=s cross-examination regarding the extraneous offense was conducted in bad faith. It is well settled that the examiner must have a good-faith belief the event inquired of occurred. However, appellant failed to preserve error for review by not making a timely, specific objection on this ground. See Tex. R. App. P. 33.1(a).
[2] Having found no reversible error, we need not address the State=s conditional cross-point.
[3] Senior Justice Joe L. Draughn sitting by assignment.