No. 10-04-00228-CR
Opinion Delivered and Filed July 6, 2005. DO NOT PUBLISH.
Appeal from the 411th District Court, Polk County, Texas, Trial Court No. 17499. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE concurring with note)
"(Justice Vance concurs with a note: It is hard to understand why this opinion, even though it is a memorandum opinion, does not adequately address Appellant's issues. The sufficiency issues contain no analysis of the evidence whatsoever and there is no real analysis of the probative vs. prejudicial aspects of the Rule 403 objection. Although I concur in the judgment, I cannot join this opinion.)"
TOM GRAY, Chief Justice.
Barnett appeals his conviction for manslaughter. See Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). We affirm.
Sufficiency of the Evidence.
In Barnett's first and second issues, he contends that the evidence of recklessness was insufficient. See Tex. Penal Code Ann. § 6.03(c) (Vernon 2003), § 19.04(a). Barnett struck the victim while the two were standing in a lake, and thus caused the victim to lose consciousness, so that she drowned. In Barnett's first issue, he contends that the evidence was legally insufficient. In Barnett's second issue, he contends that the evidence was factually insufficient. Barnett argues that there was no direct evidence. Barnett points to evidence that he attempted CPR and called 9-1-1 after he found the body, and that the victim was in shallow water for only a short time. The State points primarily to the following evidence. Before the victim's death, Barnett was drunk and angry and wanted to fight; and was fighting with the victim and others. Barnett slapped the victim and punched her with his fist on the top of her head, and those injuries would have caused her to lose consciousness. Barnett knew that the victim was not able to swim. Legal Sufficiency. Considering the record evidence in the light most favorable to the jury's verdict, we determine that a rational jury could have found beyond a reasonable doubt that Barnett acted recklessly. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Prible v. State, No. AP-74,487; 2005 Tex. Crim. App. LEXIS 110, at *12-*13 (Tex.Crim.App. Jan. 26, 2005). We overrule Barnett's first issue. Factual Sufficiency. Viewing the evidence in a neutral light, we determine that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust, and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Prible, 2005 Tex. Crim. App. LEXIS 110, at *16; Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). We overrule Barnett's second issue. Admission of Extraneous Offenses.
In Barnett's third and fourth issues, he contends that the trial court erred in overruling Barnett's objections to evidence of Barnett's other assaults against the victim. In Barnett's third issue, he complains that the evidence constituted inadmissible character evidence. See TEX. R. EVID. 404(a). In his fourth issue, he complains that the evidence was unfairly prejudicial. See id. 403. Evidence of extraneous offenses may be admissible if relevant to show motive, intent, knowledge, or absence of mistake or accident, among other purposes. Id. 404(b); see Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004). The trial court did not abuse its discretion in overruling Barnett's objections, where the evidence was relevant to show Barnett's intent and absence of mistake in striking the victim; and was probative and necessary for those purposes while unlikely to impress the jury irrationally. See Prible, 2005 Tex. Crim. App. LEXIS 110, at *17, *23; Johnston at 219; Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh'g). We overrule Barnett's third and fourth issues. Having overruled Barnett's issues, we affirm the judgment.