In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00086-CR
______________________________
GERALD MILLARD MARSH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 37595-B
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Gerald Millard Marsh appeals his conviction for manslaughter of Felicia Smith, sentence
of fifteen years’ imprisonment, and fine of $10,000.00 on the sole ground that the trial court erred
in denying Marsh the right to introduce evidence of the juvenile record of Marcus Smith, a witness.
We affirm the trial court’s judgment.
The following facts are not in dispute. Felicia was staying with Marsh in his home.
During the night, Marcus and his friend Keith Bates paid a visit to Felicia to ―[s]ee if she wanted to
come drink with us.‖ Marsh answered the knocking at the door and announced that he did not
want Marcus in his home and desired that he leave. A fracas arose among the people who were
there (with Marsh fighting both Felicia and Marcus), ending up with Felicia, Marcus, and Bates
being located on the front yard and Marsh inside the house. Marsh retrieved a gun from within
the home, and seeing a ―silver thing‖ in Felicia’s hand which he said he believed at the time might
have been a pistol, fired several shots through the open front door,1 resulting in the gunshot death
of Felicia.
As to the death of Felicia, Marsh was charged with murder, manslaughter, and aggravated
assault; he was also charged with the aggravated assault with a deadly weapon of Marcus. 2 The
1
Marsh characterized these as ―warning shots‖ and maintained that he was attempting to shoot over the heads of the
brother and sister duo.
2
Marsh was convicted of the aggravated assault with a deadly weapon of Marcus. That conviction is also the subject
of a simultaneous appeal to this Court (our docket number 06-10-00102-CR). The same record has been submitted
for both cases and the briefs submitted on each case are virtually identical.
2
charges against Marsh as to the alleged crimes against Felicia and the crime against Marcus were
tried together. Marsh asserted a self-defense claim, testifying that Marcus and Felicia assaulted
him after Marcus was asked to leave. Marsh wanted to introduce, through his own direct
testimony, a juvenile adjudication on Marcus’ record for attempted capital murder.3 The purpose
stated at trial for the introduction of the records was to establish that his fear of Marcus was
reasonable. The trial court allowed Marsh to testify to Marcus’ character through opinion and
reputation testimony, but ruled the juvenile adjudication and underlying facts of the attempted
capital murder inadmissible. Marsh complains that the trial court’s ruling ―denying the defendant
the right to cross examine Marcus Smith about his juvenile adjudication for attempted capital
murder in light of defendant’s claim of self-defense‖ was in error.4
The sole reason stated at trial for which Marsh sought to admit Marcus’ juvenile
adjudication was to support his theory of self-defense.5
Application of Rules 403 and 404 of the Texas Rules of Evidence
3
This murder, as described in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), was quite cold-blooded.
4
Marsh did not attempt to cross-examine Marcus about his juvenile record as suggested by the point of error. Prior to
Marcus’ examination, Marsh entered into an agreement with the State that he would not mention the juvenile
adjudication.
5
On appeal, a second argument is posited, that being that the trial was essentially a swearing match between Marsh and
Marcus as to the events which transpired and that Marcus’ ―status as a convicted party to capital murder would
undoubtedly have an effect on a jury weighing conflicting evidence.‖ Marsh did not express that reason to the trial
court. The specific grounds of an objection must be stated if it is not apparent from the context in which the objection
is raised. TEX. R. EVID. 103(a); Morales v. State, 951 S.W.2d 59, 62 (Tex. App.—Corpus Christi 1997, no pet.). An
appellant’s trial objection must be timely and specific, and it must comport with his objection on appeal, or error is
waived. TEX. R. APP. P. 33.1(a)(1)(A); Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007). Not having
advanced this argument to the trial court, it was waived.
3
A trial court’s decision to admit or exclude evidence is reviewed only for abuse of
discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State,
70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion if the
decision to admit evidence is within the ―zone of reasonable disagreement.‖ Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not substitute our
own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). If the trial court’s decision on the admission of evidence is supported by the record, there
is no abuse of discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d
531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.
In instructing Marsh not to testify about Marcus’ juvenile adjudication concerning the prior
murder, the trial court stated:
The Court finds that even if that evidence is probative, the danger of unfair
prejudice substantially outweighs any probative value. Further, the Court finds
that those specific instances of conduct would be introduced merely just to show
conformity with character and do not go to the issue at hand.
Thus, it appears the trial court’s ruling was based upon application of Rules 403 and 404.6
6
Rule 404 of the Texas Rules of Evidence prohibits the use of character evidence to show character conformity.
Evidence of ―other crimes, wrongs or acts‖ may be admissible if it has relevance apart from its tendency ―to prove the
character of a person in order to show action in conformity therewith.‖ TEX. R. EVID. 404(b). Rule 404(b) contains
an illustrative, but not exhaustive, list of relevant and permissible uses of such evidence (―proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident‖). If the evidence of
other misconduct is met by a proper objection, the burden is on the proponent to demonstrate that the challenged
evidence has relevance beyond its tendency to show character conformity. Montgomery, 810 S.W.2d at 387. Aside
from self-defense, no argument was advanced by Marsh attempting to demonstrate admission for a purpose other than
to show a tendency toward undesirable character conformity. Moreover, Rule 404(a)(3) provides the admission of
character evidence is subject to Rule 609. Rule 609 of the Texas Rules of Evidence permits the credibility of a
4
As to Rule 403, the court felt that even if the specific instance of conduct––an attempted
capital murder which occurred over sixteen years ago––had probative value on the issue of
self-defense, the probative value was substantially outweighed by the danger of unfair prejudice.
Our review of Marsh’s brief reveals that there is no challenge to the trial court’s discretionary Rule
403 ruling. McDonald, 179 S.W.3d at 576 (trial court’s decision to admit or exclude evidence
reviewed only for abuse of discretion)7; Willover, 70 S.W.3d at 845. One must raise specific
objections at trial in order to preserve them for appeal. See Paredes v. State, 129 S.W.3d 530, 535
(Tex. Crim. App. 2004). An appellant must attack all independent grounds supporting a trial
court’s ruling. Dinger v. State, No. 12-06-00190-CR, 2007 WL 2257936, at *2 (Tex.
App.—Tyler Aug. 8, 2007, pet. ref’d) (mem. op., not designated for publication) (―Appellant
challenges the trial court’s ruling that the evidence was not relevant to punishment under article
37.07. However, even if the evidence was relevant to punishment under article 37.07, evidence
witness to be attacked with evidence of the witness’s conviction for a felony or crime involving moral turpitude.
TEX. R. EVID. 609(a). However, evidence of juvenile adjudications is ordinarily not admissible for impeachment
purposes. TEX. R. EVID. 609(d). The reason for this rule is that juvenile adjudications are not convictions. TEX.
FAM. CODE ANN. § 51.13(a) (Vernon 2008). In limited circumstances, the constitutional right to cross-examination
may require a juvenile adjudication to be admitted. Foster v. State, 25 S.W.3d 792, 795 (Tex. App.—Waco 2000,
pet. ref’d). For example, a pending juvenile charge may be admissible on cross-examination to show the motive or
bias of the witness to testify favorably for the State. Carmona v. State, 698 S.W.2d 100, 102 (Tex. Crim. App. 1985);
Harris v. State, 642 S.W.2d 471, 476 (Tex. Crim. App. 1982). Also, a defendant is permitted to cross-examine a
crucial witness regarding his juvenile record for the limited purpose of showing bias where the witness was on
probation for the juvenile crime while assisting the police and testifying in court. Davis v. Alaska, 415 U.S. 308
(1974). Defendants are not, however, permitted to cross-examine a witness regarding prior juvenile adjudications for
general character impeachment purposes. Foster, 25 S.W.3d at 795; Gilmore v. State, 871 S.W.2d 848, 851 (Tex.
App.—Houston [14th Dist.] 1994, no pet.). During trial, Marsh failed to advance motive or bias as a reason
supporting admissibility of Marcus’ juvenile record.
7
We will uphold the trial court’s ruling on the admission or exclusion of evidence if the ruling was proper under any
legal theory or basis applicable to the case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
5
that runs afoul of Rule 403 may (and should) still be excluded. . . . Because the unchallenged Rule
403 ground supports the trial court’s overall ruling, we do not address whether the evidence was, in
fact, relevant to punishment under article 37.07.‖ (Citations omitted.)); Ortiz v. State,
No.03-02-00520-CR, 2004 WL 437772, *4 (Tex. App.—Austin Mar. 11, 2004, no pet.) (mem.
op., not designated for publication) (―If relevant as presented, the trial court ruled that it did not
meet the balancing test under Rule 403. Appellant acknowledges the Rule 403 decision but has
not challenged that ruling by briefing the issue. We find no abuse of discretion on the part of the
trial court.‖ (Citations omitted.)); see Taylor v. State, No. 05-09-00645-CR, 2010 WL 2927471,
at *1 (Tex. App.—Dallas July 28, 2010, pet. ref’d) (mem. op., not designated for publication)
(Affirming because appellant did not provide adequate briefing on one possible basis for denial of
a motion to suppress. In so holding, court stated, ―We will not make appellant’s arguments for
him.‖); Walker v. State, No. 05-08-01134-CR, 2009 WL 3353627, at *3 (Tex. App.—Dallas
Oct. 20, 2009, no pet.) (mem. op., not designated for publication) (―in order to preserve an issue
for appeal, the appellant must raise all issues or points on appeal in their brief.‖ TEX. R. APP. P.
38.1(h)). Therefore, if the trial court’s ruling can be sustained on an independent ground the
appellant must challenge all of the grounds on appeal. See Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980) (defendant must challenge each ground on which the trial
court relies on to rule against the defendant because one sufficient ground supports trial court’s
order).8
8
Although these unpublished cases have no precedential value, we may take guidance from them ―as an aid in
6
We also point out that even had the trial court’s ruling been in error, we fail to see that
(given the manslaughter verdict rendered by the jury) it would have caused harm to Marsh. A
person is guilty of manslaughter if he recklessly9 causes the death of an individual. TEX. PENAL
CODE ANN. § 19.04 (Vernon 2011). Self-defense renders the use of force against another ―when
and to the degree the actor reasonably believes the force is immediately necessary to protect the
actor against the other’s use or attempted use of unlawful force.‖ TEX. PENAL CODE ANN. § 9.31
(Vernon 2011). Because the actor, in deciding to employ self-defense, must make a decision that
the use of force is immediately necessary for protection, the resulting action is intentional or
knowing. For this reason, courts have stated that one cannot act accidentally or recklessly when
acting in self-defense. Nevarez v. State, 270 S.W.3d 691, 695 (Tex. App.—Amarillo 2008, no
pet.); Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(citing Avila v. State, 954 S.W.2d 830, 838–39 (Tex. App.—El Paso 1997, pet. ref’d) (holding
intentional conduct implicit in claim of self-defense); Johnson v. State, 915 S.W.2d 653, 659 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); see also Alonzo v. State, 328 S.W.3d 19 (Tex.
App.—Corpus Christi 2010, pet. granted). Because self-defense could not be utilized to justify
manslaughter (the crime for which Marsh was convicted), Marsh was not entitled to introduce
developing reasoning that may be employed.‖ Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo 2003,
pet. ref’d).
9
―A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist
or the result will occur.‖ TEX. PENAL CODE ANN. § 6.03(c) (Vernon 2011).
7
Marcus’ juvenile adjudication for that charge on the basis of self-defense and could not have
served to exculpate Marcus of the crime for which he was convicted.
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: May 23, 2011
Date Decided: June 10, 2011
Publish
8