Opinion
No. 10-16-00123-CR
09-06-2017
RONALD ANTHONY WHITE, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court No. 14-04381-CRF-85
MEMORANDUM OPINION
Ronald White appeals from a conviction for aggravated assault for which he was sentenced to forty years in prison. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). White complains that the trial court abused its discretion in admitting evidence of extraneous offenses of which he had not received notice as required by Rule 404(b) of the Rules of Evidence, that the trial court erred by refusing to give a limiting instruction at the time of the admission of extraneous offenses, and that the abstract portion of the jury charge was erroneous because it contained an improper definition for "nature-of-conduct." Because we find no reversible error, we affirm the judgment of the trial court.
RULE 404(b)
In his first issue, White complains that the trial court abused its discretion in the admission of extraneous evidence relating to threats he allegedly made to the victim, her mother, and a friend of the victim and relating to a prior incarceration. White complains that the State did not give him timely notice of its intent to introduce evidence of these extraneous acts pursuant to Rule 404(b) of the Rules of Evidence and the evidence should have thus been excluded due to surprise.
Rule 404(b) allows the introduction of evidence relating to crimes, wrongs, or other acts in certain circumstances. TEX. R. EVID. 404(b). In a criminal case, upon timely request by a defendant, the State must provide reasonable notice before trial that the State intends to introduce such evidence in its case-in-chief. TEX. R. EVID. 404(b)(2). There is no dispute that White requested notice of the extraneous offense evidence and the State did not provide notice of the extraneous acts in question.
White did not request a continuance of the trial on the basis of surprise or lack of notice during the discussion with the trial court regarding a motion in limine concerning the extraneous acts in question, nor did he seek a continuance when the evidence was actually admitted. The failure to request postponement or seek a continuance waives any error urged on appeal on the basis of surprise. See Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985); see also Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); Martin v. State, 176 S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.). Because White did not request a continuance, he cannot complain of surprise on appeal.
Further, the State is not required to provide notice of extraneous offenses to rebut a defensive theory. Both in voir dire and in his opening statement, White expressed that the injuries sustained by the victim were the result of self-defense. The Court of Criminal Appeals has expressed that "[w]hile Rule 404(b) requires the State to provide notice of other crimes, wrongs, or acts it plans to introduce in its case-in-chief, there is an exception to this notice requirement when the defense opens the door to such evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence. To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of trial, any and all potential defenses that a defendant may raise." Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (internal citations omitted). Therefore, because the defensive theory raised in voir dire and the defense's opening statements opened the door to the extraneous-offense evidence presented by the State, the State was not required under Rule 404(b) to provide notice of the evidence in question used to rebut this theory. The trial court did not abuse its discretion in the admission of the extraneous acts because of the lack of notice provided by the State. We overrule issue one.
LIMITING INSTRUCTION
In his second issue, White complains that the trial court erred by refusing to give a limiting instruction to the jury at the time of the introduction of extraneous act evidence on approximately six separate occasions during the trial. White presented a proposed limiting instruction in writing to the trial court that stated:
You are instructed that evidence offered by the State that the defendant allegedly committed crimes or acts of misconduct against [the victim] other than that alleged in the indictment in this case cannot be considered by you for the purpose of determining the guilt or innocence of the defendant and concerning the offense on trial in this case but for purposes of assisting you, if it does, in determining the nature of the relationship between the defendant and [the victim] or in rebutting a claim of self-defense and for no other purpose.
Each of the objections made by White to the introduction of extraneous act evidence referred to this instruction. Although White objected to the admissibility of this evidence pursuant to Rule 404(b) generally as well as Rule 403, those complaints are not raised in this appeal. White's sole argument to this Court is that the trial court's refusal to give his proposed contemporaneous limiting instruction was erroneous, not that the evidence should have been excluded.
Rule 404(b) states that extraneous act evidence may be admissible for a purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b). "Rule 404(b) is a rule of inclusion rather than exclusion—it excludes only evidence that is offered solely for proving bad character and conduct in conformity with that bad character." Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016). However, when evidence is offered for a limited purpose in Rule 404(b), a limiting instruction should be given to the jury upon proper request. TEX. R. EVID. 105.
One of the instances of which White complains relates to threats made by White to his mother. Another instance relates to testimony regarding an assault on another inmate while he was in custody awaiting trial. The limiting instruction requested by White did not fit the circumstances for which this evidence would have been admissible, if it was properly admissible. Thus, it was not error for the trial court to refuse to give White's requested limiting instruction at the time of the admission of this evidence.
Three of the instances of which White complains relate to the admission of testimony from three separate witnesses regarding an incident where White threw a brick through the victim's windshield, and the other instance complained of by White relates to the victim's testimony that White would become violent and break things. While this testimony was relevant for describing the relationship between White and the victim and potentially to rebut his claim of self-defense, there were other purposes pursuant to Rule 404(b) for which the evidence was admissible, such as intent, motive, absence of mistake, or lack of accident. See, generally, McIntosh v. State, 855 S.W.2d 753, 768-69 (Tex. App.—Dallas 2003, pet. ref'd) (not error to refuse limiting instruction restricted to impeachment when evidence admissible as to motive or identity). Therefore, White's requested limiting instruction was not a proper limiting instruction pursuant to the facts of the case and the trial court did not abuse its discretion by refusing to give the instruction as requested by White at the time of the admission of the evidence. We overrule issue two.
The trial court did include an instruction relating to extraneous offenses pursuant to Rule 404(b) in the jury charge.
JURY CHARGE ERROR
In his third issue, White complains that the trial court erred by including the definition for "nature-of-conduct" as well as for "result-of-conduct" in the jury charge relating to the intent elements of the offense of aggravated assault with a deadly weapon. White argues that it was only proper to include the "result-of-conduct" definition in the jury charge. It is undisputed that White objected on this basis to the trial court and his objection was overruled.
A claim of error in the jury charge is reviewed using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The first step is to determine whether there is error in the charge. Barrios, 283 S.W.3d at 350; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there was error and the appellant objected to the error at trial, reversal is required if there was some harm, that being that the error is calculated to injure the rights of the defendant. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171.
Aggravated assault with bodily injury is a "result-of-conduct" offense. However, this Court has previously held that if the indictment alleges elements relating to the use or exhibition of a deadly weapon during the commission of the offense, those elements relate to the "nature-of-conduct." See Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref'd). This is because what makes a weapon "deadly" is whether or not it is "capable" of causing serious bodily injury in the manner of its use or intended use, without regard to whether the infliction of serious bodily injury is the result. TEX. PENAL CODE ANN. § 1.07(a)(17). Therefore, as alleged in the indictment, it was not improper to include the definitions of "nature-of-conduct" as well as "result-of-conduct" in the jury charge. Johnson, 271 S.W.3d at 761. Therefore, the trial court's inclusion of the "nature-of-conduct" instructions was not erroneous. We overrule issue three.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed September 6, 2017
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