Opinion
Nos. 05-09-00434-CR, 05-09-00435-CR
Opinion Filed June 14, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court, Cause Nos. F08-72549-VR and F09-00087-PR.
Before Justices RICHTER, LANG-MIERS, and MYERS.
OPINION
Billy J. Brown, Jr. was convicted in two cases of aggravated assault and sentenced to concurrent terms of life imprisonment. In three issues, he argues the trial court erred by overruling objections to testimony that (1) he pulled out a pistol and threatened to shoot the complainant's sister, as well as (2) "shoot up" her house, and (3) that a prosecutor's question to a trial witness was actually a statement to the jury that injected harmful, new facts which were not in evidence. We affirm the trial court's judgments.
Background and Procedural History
Tanika Tarbutton dated appellant "off and on" for approximately two-and-a-half years. She testified that appellant was violent with her during their relationship, that is, he punched, choked her, and threatened her life. In May 2008, Tanika decided to "[e]nd the relationship once and for all." Because she worried something might happen to her if she left appellant, she told him she was going to her grandfather's funeral in Corsicana when she actually went to the home of her best friend, Latoyia Bizzell. After Tanika left appellant, he attempted to contact her on several occasions via e-mail. Appellant e-mailed Tanika on May 24, 2008, for example, and asked her if she had left him. An e-mail from appellant on May 25, 2008, mentioned the zip code of the Oak Cliff address where Tanika was then staying and stated that he "ain't the one for these games." On May 26, 2008, Tanika, her sister, Ladonna Tarbutton, and Latoyia were at Latoyia's grandmother's house in Oak Cliff preparing for a Memorial Day weekend party. Appellant went to the house uninvited and, when told by Ladonna to leave, said, "If y'all sitting outside, I'm going to shoot the bitch up." Ladonna understood this to mean appellant was going to fire "bullets through the house." Latoyia also told appellant to leave, but he refused and insisted that Tanika come outside. When Tanika refused to come outside, appellant threatened to "shoot the house up if Tanika didn't come out." Appellant lifted his shirt and showed Ladonna and Latoyia a gun in a holster. When Ladonna asked appellant what he would do if Tanika came out and told him she did not want to be with him any more, appellant replied, "I'm going to kill her." About twenty minutes later, appellant attempted to climb over a fence in the backyard while holding the "pistol in the air." He yelled, "Don't run, don't run. I got something for you. I'm going to get you, Ladonna. You and [Tanika], I'm going to get you. I'm going to get you." Everyone ran back into the house except Ladonna, who stood outside until Latoyia convinced her to go back into the house. Ladonna testified that the police were called during the incident, but that they "didn't . . . show up," and they never "showed up" until the day of the shooting. Appellant e-mailed Tanika after the Memorial Day party and told her that she was "going to pay for doing me like that," and that her friends and family could not "hide you forever." On May 28, 2008, appellant wrote another e-mail to Tanika that read, in part, "I really hope you know what you're doing `cause if you talk to me and let me know what's up with all this bullshit you put me through, when you see me again believe me I'm shooting and whoever you with." He also wrote, "I can't let you make it." Another e-mail sent by appellant to Tanika on the morning of May 28th said, "I ain't playing. Game over. If I have to come after you one more time, I'm shooting you because you're playing with my shit and my heart hoe and you know I don't play no games." Referring to his personal belongings that were still in Tanika's possession, appellant's e-mail also said, "I want my shit today not Thursday, today, or I will [be] the last person you see and that's 100 percent." Appellant e-mailed Tanika again that afternoon and told her "now you won't have a chance to run." On May 28, 2008, Ladonna left Latoyia's grandmother's house and went to the train station to catch a ride back to her home. While she was waiting at the train station, appellant approached her and started talking to her about problems he was having in his relationship with her sister, Tanika. Ladonna told appellant she did not care about his problems. Appellant then put a bag with a gun in it behind her back, and they both boarded the train. Once they were on the train, appellant told Ladonna that Tanika had some of his clothes that he wanted back. Ladonna called Tanika on her cell phone and told her to return the clothes. Ladonna then handed the cell phone to appellant, who began arguing with Tanika. When appellant would not return the phone, Ladonna grabbed it from him. Appellant said, "You think I won't shoot you on the motherfucking train, bitch?" Appellant pulled out the pistol and the other passengers on the train began running. They continued to talk, and appellant threatened to shoot her when she got off the train. When appellant and Ladonna changed trains at Union Station, appellant said he was going to shoot her, but that there were too many people around. At the Forest Lane Station, appellant boarded another train going south, towards Oak Cliff. Ladonna got into a car driven by her cousin. Ladonna told her cousin that appellant was going to shoot Tanika. Latoyia was with Tanika when Ladonna called from the train, saying that she was on the train and that appellant had "the gun to her back." Both Latoyia and Tanika called 911 and reported the incident. Later, Ladonna called Tanika and said she and appellant got off the train and that appellant took another train back to Oak Cliff. The police arrived, talked to Tanika about the threats, and then left. Several hours later, Tanika and Latoyia decided to walk to a nearby convenience store to get something to eat. Before leaving the house, Latoyia grabbed two kitchen knives for "protection" and gave one knife to Tanika and put the other in her pocket. They walked to the store without incident and purchased some snacks. On the way back to Latoyia's grandmother's house, Latoyia thought she saw appellant and told Tanika, but Tanika did not think that it was him. They continued walking until Latoyia saw a small brown dog. When she bent over to pet the dog, the knife in her pocket stuck her so she handed it to Tanika, who put the knife in her own pocket. After playing with the dog, Tanika and Latoyia walked down Montague Avenue toward Latoyia's grandmother's house. A man named Jimmie Edman, who lived on Montague, said hello to them. At the corner of Montague and Strobel, appellant appeared from behind a vacant house. He said to Tanika, ". . . I thought you loved me. You sending me all these text messages and things." Edman heard Tanika respond, "[L]ike I said before, I didn't send you no text message, I hadn't called you, I hadn't did anything." She also said that she was "tired of the beating and knocking." Latoyia, meanwhile, had gotten out her cell phone to call 911. She heard appellant say to Tanika, "You think I won't kill you?" While Latoyia was on the phone, appellant pulled out a gun and called Latoyia a "police calling ass bitch." He aimed his gun at her and fired. After appellant fired the first shot, Latoyia heard appellant say to her, "Run bitch, I'm going to kill you." Latoyia ran towards her grandmother's house. Appellant next pointed the gun in the direction of Tanika and told her to walk with him. As they walked, Tanika told appellant that she did not want to be with him. She did not take the knives out of her pocket or threaten appellant, according to Tanika's testimony. Appellant responded that, if Tanika was not going to be with him, she was "not going to be with anyone else." Appellant shot her in the abdomen, elbow, and, after she fell face down on the ground, in the thigh. After shooting Tanika, appellant ran away. Jasmine Chambers, who lived on Montague, saw the shooting and ran over to Tanika to render assistance. Latoyia also ran towards Tanika after hearing additional shots and hearing her scream "real loud." Sharon Chambers, Jasmine's mother and a trained nurse, heard the gunshots from inside her house, ran outside, and provided medical assistance to Tanika until paramedics arrived. Appellant, twenty-eight years old at the time of trial, testified in his own defense. He admitted that he had a prior conviction for aggravated sexual assault of a child and that he was scheduled to go to court on May 28, 2008, concerning a charge of failing to register as a sex offender. He testified that he first met Tanika in 1997, and that they eventually developed a dating relationship. He said he provided her with a place to stay. Appellant contended that he received an e-mail from her on the morning of May 28, 2008, stating that she missed him and wanted to come home. He said he wrote back to her and asked where she was, and Tanika gave him the Montague address of Latoyia's grandmother. Appellant testified that he had a bag with a gun inside it when he went by train to Oak Cliff to meet Tanika. He said he brought the gun because of e-mails he had received from Latoyia, and that he waited near a vacant "burnt up house" for Tanika to return his personal belongings. Appellant testified that he argued with Tanika as they walked down the street. He contended that Latoyia pulled out a knife and threatened to cut him before she handed the knife to Tanika and walked away. As she handed the knife to Tanika, Latoyia told her, "girl, don't be scared" and "if he try anything, cut his ass." Appellant said he had his back turned to Tanika and was walking away when he heard her walking up behind him and making a sound like she was sharpening knives, "or something." When appellant turned around, Tanika grazed his arm with the knife. Appellant then closed his eyes and started shooting. He did not recall how many times he fired but acknowledged that "they say four times." Appellant contended he stopped shooting when he heard Tanika scream, which scared him. Appellant recalled that when he saw Tanika lying on the ground, he got scared and ejected the remaining unfired rounds from the pistol so that no one else would "get hurt." Appellant looked at her for a moment and asked her if she was okay, and she said no. Tanika "started hollering for her mama," and appellant "just turned around and ran." He admitted that he shot Tanika with a deadly weapon and caused her bodily injury, but stated he never intended to murder or hurt anyone and that he "was just trying to defend myself and get her off of me." Appellant denied pointing the pistol at Latoyia. Appellant pleaded not guilty to two indictments for aggravated assault with a deadly weapon. The jury convicted him of aggravated assault as alleged in both indictments, found an enhancement allegation true in each case, and sentenced appellant to concurrent terms of life imprisonment.Discussion
Testimony regarding the incident on the train and the Memorial Day party In his first issue, appellant argues the trial court erred under rule 404(b) in admitting Ladonna's testimony that he pulled out a pistol while on the train and threatened to shoot her when she got off the train. In his second issue, appellant contends the trial court erred under rule 404(b) in admitting Ladonna's testimony that he went to the Memorial Day party at Latoyia's grandmother's house and threatened to "shoot up" the house and to shoot Ladonna. The State argues these issues were not preserved for appellate review and the trial court did not err or, alternatively, that the error was harmless. Preservation: Appellant's first issue Beginning with the question of preservation, the State argues that appellant's first issue is not preserved for review because the State offered testimony about the incident without objection, before and after appellant objected. According to the record, Ladonna testified that, while they were on the train, appellant pulled "the gun out and people started running from both sides of the train." Thereafter, the record reads in part as follows:Q. [PROSECUTOR]: So you were actually at the first stop after —
A. [LADONNA]: No, we wasn't even on the complete stop yet, that train was still fixing to —
Q. So you're on the train and people ran —
A. Yeah.
Q. — either direction.
[DEFENSE COUNSEL]: Your honor, I'm going to object to this not being relevant to the charged offense. This is [sic] purely extraneous offenses that are not related to the charged offenses.
THE COURT: I overrule the objection. Continue.Ladonna further testified, without objection, that appellant said, "[W]hatever stop you get off at, I'm going to shoot you whatever stop you get off at." She also testified that they both exited the train at Union Station and appellant said he was going to shoot her, but there were too many people around. In Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990), overruled on other grounds by Hietman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991), the court of criminal appeals concluded that "[t]o be timely an objection must be raised `at the earliest opportunity,' or `as soon as the ground of objection becomes apparent." Id. at 291. In this case, the two short questions that occurred between Ladonna's testimony and the defense's objection concerned her location when the gun was pulled out. They merely repeated the fact that the people on the train ran in either direction. As a result, the objection was timely. Furthermore, although the defense did not object to Ladonna's subsequent testimony that "[h]e said, whatever stop you get off at, I'm going to shoot you whatever stop you get off at," the defense had already objected to this line of questioning, but the objection had been overruled. We therefore conclude appellant's first issue was preserved for appellate review. Preservation: Appellant's second issue The record shows that Ladonna testified she was at Latoyia's grandmother's house on May 26, 2008, cooking for a Memorial Day party, when appellant walked over to the house. At this point appellant objected, "Excuse me, Your Honor, I'm going to object to relevance. This case is totally about what happened on the 28th, and, at this point, they have laid nothing that shows that this prior information from the 26th has anything to do with what happened on the 28th." The trial court overruled the objection, stating, "Well, I'll let them develop that." Ladonna went on to testify that she argued with appellant and told him to leave. Without objection, she testified that appellant said, "If y'all sitting outside, I'm going to shoot the bitch up," which she understood to mean that appellant was "going to shoot through the house," that is, send "bullets through the house." Ladonna also testified that appellant lifted up his shirt and displayed a gun in a holster. Appellant did not object when Ladonna testified that, approximately twenty minutes later, appellant attempted to climb over the fence while holding the pistol in the air and that he said, "Don't run, don't run. I got something for you. I'm going to get you, Ladonna. You and [Tanika], I'm going to get you, I'm going to get you." The State contends appellant's second issue was not preserved because the defense did not object to each of the statements complained of on appeal. But appellant had already objected and received an adverse ruling from the court, and was told the State would be permitted to develop the testimony regarding the Memorial Day incident. Ladonna's testimony after the defense's objection concerned the same subject matter as her previous testimony. The record suggests the trial judge was well aware of the nature of the defense's objection and that there was no need for the defense to repeat its objection. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (standards of procedural default "are not to be implemented by splitting hairs in the appellate courts"). The State also argues the issue was not preserved for review because appellant stated a "relevancy" objection rather than a rule 404(b), or "extraneous offense" objection. The court of criminal appeals allows review under rule 404(b) even though an appellant does not precisely recite rule 404(b) when making an objection to the trial court. See Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.-Houston [14th Dist.] 2006, pet ref'd); see also Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009) (objection is not defective merely because it does not identify a rule of evidence); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh'g) ("Optimally, the opponent should object that such evidence is inadmissible under Rule 404(b). An objection that such evidence is not `relevant,' or that it constitutes an `extraneous offense' or `extraneous misconduct,' although not as precise as it could be, ought ordinarily to be sufficient under the circumstances to apprise the trial court of the nature of the complaint."). If the circumstances do not sufficiently advise the trial court of the nature of the complaint, a relevancy objection alone is not sufficient to preserve error under rule 404(b). See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999). Moreover, an objection stating one legal theory may not be used to support another legal theory on appeal. Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993). In this case, however, the defense's objection was sufficient, when viewed in context, to make the trial court aware of the nature of the complaint, that is, an objection to the admission of extraneous offense evidence. Accordingly, we conclude appellant's second issue was preserved for appellate review, and we now turn to the merits of appellant's complaints. Standard of Review The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). So long as the trial court's ruling lies within the zone of reasonable disagreement, the appellate court should affirm. Id.Applicable Law "Relevant evidence" means evidence having any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence, and, except as otherwise provided, relevant evidence is admissible. Tex. R. Evid. 401; see Tex. R. Evid. 402. Under the Texas Rules of Evidence 404(b), evidence of other crimes, wrongs, or acts is not admissible "to prove the character of a person in order to show action in conformity therewith." Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). It may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." De La Paz v. State, 279 S.W.3d 336, 342-43 (Tex. Crim. App. 2009). These exceptions are neither mutually exclusive nor collectively exhaustive. Id. at 343. The rule excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that character. Id. "Same transaction contextual evidence" is evidence reflecting the context in which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). It is a recognition that events do not occur in a vacuum, and a jury has a right to hear what occurred immediately before and after the offense in order to realistically evaluate the evidence. Id. Extraneous offenses may be admissible as "same transaction contextual evidence" when "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction." Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005). This type of evidence results when an extraneous matter is so intertwined with the State's proof of the charged offense that avoiding reference to it would make the State's case difficult to understand or incomplete. Id. at 732. The jury is entitled to hear "`all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.'" Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). The purpose of admitting extraneous offense evidence as "same transaction contextual evidence" is to place the instant offense in context. Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Analysis Appellant argues that evidence he threatened to shoot Latoyia's grandmother's house and that he threatened to shoot Ladonna on the train was not admissible under an exception to rule 404(b). He asserts that the issue in the instant cases was whether he acted in self-defense, and that the disputed evidence was not relevant to either of the charged offenses. The State's theory at trial was that appellant, who was in an angry, vengeful mood after Tanika ended their relationship, began harassing her via e-mail and at the house where she was residing; he also threatened Tanika's friends and family members before eventually confronting Tanika and Latoyia on the day in question. Appellant's defensive theory, on the other hand, which defense counsel introduced during voir dire, was that he fired in self-defense. Evidence of the Memorial Day incident and evidence regarding appellant's actions and threats on the train established relevant facts and circumstances surrounding the charged offenses. See Wyatt, 23 S.W.3d at 25. The evidence constituted same transaction contextual evidence because appellant's actions formed an "indivisible criminal transaction" that began with the threatening e-mails and culminated in the May 28th shooting. See Prible, 175 S.W.3d at 731-32; Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Furthermore, the disputed evidence tended to make the State's theory of the case more probable and helped to rebut appellant's defensive theory. See Tex. R. Evid. 404(b); see also Lemmons v. State, 75 S.W.3d 513, 522-23 (Tex. App.-San Antonio 2002, pet. ref'd) (explaining that an extraneous robbery offense offered by State to show murder defendant was aggressor in the past was relevant to rebut defendant's self-defense claim; State needed to rebut defendant's claim that he was not the first aggressor). Accordingly, we overrule appellant's first and second issues.
Prosecutor's question to appellant
In his third issue, appellant alleges the trial court erred in overruling his objection to the prosecutor's question regarding whether he knew Jimmie Edman had picked him out of a lineup because "the prosecutor's so-called question was, in fact, an unsworn statement that injected a harmful, new fact before the jury." The State argues the prosecutor was entitled to cross-examine appellant on this subject and, alternatively, that the error was harmless. Background During the State's cross-examination of appellant, the prosecutor asked him about Jimmie Edman's testimony that he saw appellant "snooping around" the neighborhood before the shooting:[PROSECUTOR]: He said he saw you snooping around the neighborhood. Did you hear him say that?
[APPELLANT]: Yes, I heard him say that.
Q. Is he lying?
A. Like I said, I'm not calling anyone a liar, but I never seen him and I doubt if he ever seen me.
Q. Well, he was able to pick you out of a lineup.
[DEFENSE COUNSEL]: Your Honor, I object this evidence is not — it's not in evidence.
TRIAL COURT: Response?The prosecutor responded that she had a "good faith basis to ask it." The trial court overruled the objection, and the prosecutor continued her examination by asking appellant, "You know the evidence; your attorney had the evidence. You know that he was able to pick you out of a lineup, don't you?" At that point, defense counsel objected that the prosecutor was striking at the defendant over the shoulders of counsel. The trial court sustained the objection and instructed the jury to "disregard the statements in regard to what the defense lawyer knows." The court denied defense counsel's request for a mistrial. The cross-examination continued as follows:
[PROSECUTOR]: Mr. Brown, you've seen that there is evidence in this trial, correct?
[APPELLANT]: Yes, ma'am, I have.
Q. And are you aware that Jimmie was able to pick you out of a lineup?
A. No, I'm not.
Q. Okay. If he was that would be a good indication that he had seen you before, wouldn't you agree?
A. Yes.
Q. And the fact that he picks exactly you, the person he doesn't know, as a person who shot the girl he doesn't know is pretty good evidence for this jury, isn't it?
[DEFENSE COUNSEL]: I object to that invades the province of the jury.
THE COURT: Overruled.
Q. Answer. That's pretty good evidence, isn't it?
A. Is what — I didn't hear the — could you repeat the question?
Q. The fact that Jimmie, who doesn't know you, picked you out of a lineup as the person who shot the girl he doesn't know, that's pretty good evidence for this jury, isn't it?
[DEFENSE COUNSEL]: Again I object at this point in time [sic] comments on the weight of the evidence.
THE COURT: Overruled.
Q. Answer the question.
A. I mean yes, if you put it like that.Analysis In this case, there was no testimony offered at trial that Edman ever picked appellant out of a lineup. Consequently, the prosecutor's question was improper because it assumed facts not in evidence. See Duncan v. State, 95 S.W.3d 669, 673 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) ("Prohibiting this kind of interjection of prejudicial hearsay as fact, in front of the jury, is the purpose of the objections `assumes facts not in evidence' and `counsel testifying.'") (citing Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991)). By objecting that the "evidence is not — it's not in evidence," appellant's trial counsel properly objected to the prosecutor's question, and that objection was overruled by the trial court. We therefore conclude the trial court abused its discretion by overruling appellant's objection and permitting the question about which he complains. HarmAnalysis Having concluded the trial court erred, we must now determine whether the error was harmful. Because the alleged error is non-constitutional, we apply the harm analysis provided in rule 44.2(b). See Tex. R. App. P. 44.2(b). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Tex. R. App. P. 44.2(b). The presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). In this case, the State presented considerable evidence of guilt. Latoyia and Tanika identified appellant as the shooter. The arresting officer testified that, when he arrested appellant approximately one week after the shooting, appellant had a nine millimeter Glock handgun with him and told the officer "that's the gun he shot [the] old girl with." Jimmie Edman also identified appellant at trial as the shooter. Moreover, appellant did not contest his identity as the shooter, and claimed he acted in self-defense. His presence at the scene was, therefore, not disputed. Appellant nonetheless argues that the prosecutor's question regarding Edman picking him out of a lineup was damaging because it supported the State's theory that appellant went to the neighborhood for the purpose of confronting and assaulting Tanika. Yet even without the complained-of portion of the State's cross-examination of appellant, the jury was aware that Edman spoke to the officers and provided a statement. The jury also heard Edman's testimony that he saw a young man lurking around the neighborhood before confronting Latoyia and Tanika, and before shooting Tanika. Edman identified appellant at trial as the man that he saw in the neighborhood. Given this testimony and the other evidence of guilt presented by the State, we conclude the trial court's error was harmless. We overrule appellant's third issue. We affirm the trial court's judgment.