Opinion
No. 04-15-00796-CR
03-01-2017
Dennis COSBY, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR3606
Honorable Philip Kazen, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
Dennis Cosby was convicted by a jury of murder. On appeal, Cosby contends the trial court abused its discretion in refusing to admit evidence of a specific prior, violent act committed by the complainant against a third party. We overrule Cosby's issue and affirm the trial court's judgment.
The jury found Cosby caused the complainant's death under the immediate influence of sudden passion arising from an adequate cause and assessed Cosby's sentence at ten years' imprisonment.
BACKGROUND
Cosby and Paul Quiroga lived in a house with Raymond Gausline and Gausline's brother. Cosby and Quiroga did not get along with each other. The following background is based on the statements Cosby provided to police detectives in two interviews.
On February 23, 2014, Cosby returned home from a bar and opened the front gate to enter the property with his bicycle. Quiroga, who was drinking beer in the front yard, told Cosby to close the gate. Cosby ignored Quiroga and continued to walk his bicycle toward the back of the house. Quiroga grabbed the bicycle from Cosby and threw it over the neighbor's fence. When Cosby told Quiroga to get the bicycle, Quiroga pushed Cosby down causing his elbows to be scraped and cut. Cosby went inside to bandage his elbow, and Quiroga returned to the front door.
Sometime later, Cosby returned outside and again confronted Quiroga about getting his bicycle. Quiroga stated he would get the bicycle when he finished his beer. Cosby went back inside to his bedroom and watched television.
About thirty minutes later, Cosby went back outside and saw the bicycle was no longer in the neighbor's yard. Cosby looked around and found the bicycle on the opposite side of the house. After locking the bicycle to the back porch, Cosby returned to the front yard and told Quiroga, "Thanks for bringing the bicycle back asshole." Quiroga followed Cosby to the back of the house and again pushed Cosby to the ground. Cosby went inside the house and retrieved his gun from his room. In his statements, Cosby could not recall the reason he retrieved the gun. When Cosby returned to the back porch with the gun, Quiroga grabbed a traffic cone. After Quiroga began to swing the cone at Cosby, Cosby shot him. Cosby shot Quiroga a second time when Quiroga continued to advance toward him. Finally, Cosby shot Quiroga a third time when Quiroga fell on top of him.
During his interviews with the detectives, Cosby stated Quiroga had previously beaten a former roommate, and Cosby wanted to prevent Quiroga from beating him in the same manner. In addition to the statements provided by Cosby in his interviews, the evidence presented at trial included the testimony of Gausline, another roommate, and the detectives who conducted the interview.
Gausline further explained Cosby's reference to Quiroga beating a former roommate. Gausline testified Quiroga had fought with the former roommate three times, including hitting that roommate with a baseball bat. Gausline also testified he observed Quiroga beat up a guy at a bar with his fists and that Quiroga had a reputation for having a violent character when he drinks.
Gausline further testified about his recollection of the events that occurred on the day Cosby shot Quiroga. Gausline was drinking with Quiroga in the front yard when Cosby left the house to go to the bar on the day of the shooting. When Cosby left, Quiroga told Gausline that he wanted to kick Cosby's ass. Gausline told Quiroga to leave Cosby alone. Gausline testified he and Quiroga each drank a half a bottle of whisky and eight beers and smoked two joints before Gausline went inside to take a nap. Sometime later, Quiroga woke Gausline up and showed him where he had thrown Cosby's bicycle into the neighbor's yard. Gausline told him to get the bicycle back and to leave Cosby alone. Gausline then returned to his room and did not witness the shooting.
Both of the detectives who interviewed Cosby testified they did not believe Cosby acted in self-defense. One detective stated Cosby's use of deadly force was not immediately necessary. The other detective testified Cosby never indicated he feared for his life or that getting his gun was immediately necessary. In addition, the detective noted Cosby agreed Quiroga never displayed a weapon or threatened Cosby. The detective further noted Cosby could have gone inside and stayed inside. The jury also heard the testimony of the investigating officers, the paramedic, the medical examiner, and the crime scene investigator.
The jury charge included an instruction on self-defense; however the jury found Cosby guilty of murder as charged in the indictment. Cosby appeals.
QUIROGA'S PRIOR BAD ACT
The sole issue raised on appeal is whether the trial court abused its discretion in excluding testimony by a former bar owner that Quiroga had threatened to knock him down and burn down his bar after he asked Quiroga to stop writing graffiti in the restroom. Cosby was not aware of the incident which occurred in 1998 or 1999. Cosby contends the evidence was admissible to prove Quiroga was the first aggressor during the course of the incident with Cosby.
We review a trial court's decision to exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). In a homicide prosecution, a defendant who raises the issue of self-defense may introduce evidence of the victim's violent character. TEX. R. EVID. 404(a)(3)(A); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Smith v. State, 355 S.W.3d 138, 150 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). The defendant may offer opinion or reputation testimony to prove the victim acted in conformity with his violent nature. TEX. R. EVID. 405(a)(1); Torres, 71 S.W.3d at 760; Smith, 355 S.W.3d at 150. In addition, specific, violent acts of misconduct may be admitted to show the victim was the first aggressor. Torres, 71 S.W.3d at 760; Smith, 355 S.W.3d at 150. However, specific acts are admissible only to the extent that they are relevant for a purpose other than character conformity. TEX. R. EVID. 404(b); Torres, 71 S.W.3d at 760; Smith, 355 S.W.3d at 150. "Because a victim's unambiguous, violent or aggressive act needs no explaining, evidence of the victim's extraneous conduct admitted in conjunction with his unambiguous act would have no relevance apart from its tendency to prove the victim's character conformity, and thus would be inadmissible." Reyna v. State, 99 S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref'd); see also Smith, 355 S.W.3d at 150. Therefore, two conditions precedent must exist before an extraneous act of the victim will be admissible to support a self-defense claim: "1) some ambiguous or uncertain evidence of a violent or aggressive act by the victim must exist that tends to show the victim was the first aggressor; and 2) the proffered evidence must tend to dispel the ambiguity or explain the victim's conduct." Reyna, 99 S.W.3d at 347; see also Guillen v. State, No. 04-14-00772-CR, 2016 WL 4444444, at *3 (Tex. App.—San Antonio Aug. 24, 2016, no pet.) (same) (not designated for publication). "For purposes of proving that the deceased was the first aggressor, the key is that the proffered evidence explains the deceased's conduct." Torres, 71 S.W.3d at 762.
In the instant case, Quiroga's violent and aggressive acts toward Cosby were unambiguous and needed no explanation. Accordingly, the trial court did not err in excluding the proffered testimony regarding a specific, violent act Quiroga committed in 1998 or 1999. See Guillen, 2016 WL 4444444, at *4; Reyna, 99 S.W.3d at 347.
CONCLUSION
The trial court's judgment is affirmed.
Rebeca C. Martinez, Justice DO NOT PUBLISH