IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE FIRST COURT OF APPEALS
FORT BEND COUNTY
OPINION
In Tate v. State, we decided that Tex. R. Evid. 404(b) allowed a defendant claiming self-defense in a murder prosecution to present evidence of the deceased's prior threat against him. We found this evidence had noncharacter conformity relevance supporting the defendant's self-defense claim that the deceased was the first aggressor at the time of the offense. See Tate v. State, 981 S.W.2d 189, 193 (Tex.Cr.App. 1998). In this case, we are asked to decide if our decision in Tate applies even when the deceased's prior conduct does not "implicate" the defendant.
The record reflects that three indictments were filed. The third indictment charged appellant with murder and with manslaughter. See Section 19.02, Tex. Pen. Code (murder); Section 19.04, Tex. Pen. Code (manslaughter). (1) The evidence shows that appellant shot and killed an innocent third party (Swain) while appellant was firing a gun in the general direction of Swain and another person (Delaney). Appellant claimed self-defense because Delaney was threatening him with deadly force, and the jury was instructed on self-defense as it applied to the murder charge. See Hayes v. State, 124 S.W.3d 781, 784-85 (Tex. App.-Houston [1st Dist.] 2003). (2) The jury was also instructed that self-defense did not apply to the manslaughter charge. (3) See id. The jury acquitted appellant of murder and convicted him of manslaughter. See id.
At trial, the trial court excluded appellant's proffered testimony of two witnesses (Bell and Paisley) who would have testified that Delaney had threatened them with a gun about two years before the incident in this case. See id.
[DEFENSE]: There's [Bell and Paisley]. The proffer, I believe they're admissible, Your Honor, under Rule 404(b) to show the proof of a motive, opportunity, intent, preparation, plan, and lack of accident on the part of [Delaney] in attacking [Bell and Paisley] in a car, running up to a car after getting in a fight with one. They're signature episodes of [Delaney], and I would request the opportunity to present both of them, or at least one of them, to describe the events that they saw and observed, and how he attacked them with a gun and tried to kill both of them. I believe they're admissible under 404(b).
[STATE]: The State's response is that they're not admissible under 404(b), and that they're being offered to show that the witness acted in conformity therewith. They have no probative value as to show what the witness' intent was, what [Delaney's] intent was involving [appellant] who's on trial today. Also, the State contends that under a prejudicial analysis under 402 and 403, that the prejudicial value substantially outweighs the probative effects.
[TRIAL COURT]: Is that an objection?
[STATE]: It is, Your Honor. We object.
[DEFENSE]: The State's not entitled to due process under course of law. Any balancing has to be in favor of [appellant], not the State, because it shows the way [Delaney] thinks and operates when there's alcohol involved and that he gets angry. So, I believe that under 404(b), it shows his modus operandi of not being afraid to attack two people when he's angry.
[TRIAL COURT]: Objection sustained. Anything else?
Appellant claimed on direct appeal that the excluded evidence of Delaney's prior aggression against Bell and Paisley was admissible under Rule 404(b) to show that Delaney was the first aggressor during the incident in which appellant shot and killed Swain. See Hayes, 124 S.W.3d at 786. (4) The Court of Appeals rejected this claim and decided:
In Tate, a threat made by the victim toward the defendant could be introduced as evidence of the victim's state of mind and possibly his motive for the confrontation with the defendant. (Citation omitted). The testimony was probative of whether the victim was the initial aggressor, but it could be brought in for other purposes. (Citation omitted). In the instant case, the incident about which appellant wished to introduce testimony did not implicate appellant in any way. Delaney did not make any threat toward appellant, and Delaney did not indicate that he had any animosity toward appellant. The incident is not probative of Delaney's motivation or state of mind related to the confrontation with appellant.
See Hayes, 124 S.W.3d at 786.
We exercised our discretionary authority to review this decision. The ground upon which we granted discretionary review states:
Whether this Court's decision in [Tate] requires the Defendant to have been "implicated" by the victim's prior bad act before such evidence is admissible under Rule 404(b)?
This Court's decision in Tate does not require a defendant to have been "implicated" by the victim's prior bad act before such evidence can be admissible under Rule 404(b). In Torres v. State, we applied Tate to decide that, in a murder prosecution where a defendant claims self-defense, the deceased's prior threats may be admitted, even though those threats were not directed at the defendant, "as long as the proffered [threats] explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only." See Torres v. State, 71 S.W.3d 758, 761-62 (Tex.Cr.App. 2002).
In this case, however, it is unnecessary to decide whether the evidence of Delaney's two-year-old specific acts of violence against Bell and Paisley was admissible under Torres and Tate because the only relevance of this evidence was to the murder charge of which the jury acquitted appellant.
The judgment of the Court of Appeals is affirmed.
Hervey, J.
Delivered: April 27, 2005
Publish
1. The first three paragraphs of this indictment charged murder and the fourth paragraph
charged manslaughter.
2. The jury essentially was instructed to acquit appellant of murdering Swain if appellant had
the right to use self-defense against Delaney.
3. Section 9.05, Tex. Pen. Code, makes self-defense unavailable to a defendant who recklessly
injures or kills an innocent third person. See Section 19.04(a) (defining manslaughter as recklessly
causing the death of an individual). In considering whether appellant was guilty of manslaughter,
the jury was instructed as follows:
Even though a defendant is justified in threatening or using force or deadly force
against another, if in doing so he recklessly injures or kills an innocent third person,
the justification afforded is unavailable in a prosecution for the reckless injury or
killing of the innocent third person.
4. We express no opinion on whether appellant preserved this claim in the trial court. See Tex.
R. App. Proc., 33.1(a)(1)(A), (to preserve claim for appellate review, record must show that
complaint was timely made to trial court with sufficient specificity to make trial court aware of the
complaint).