Opinion
Nos. 05-06-01531-CR, 05-06-01532-CR, 05-06-01533-CR, 05-06-01534-CR
Opinion issued April 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause Nos. F04-55859-QJ; F04-55889-QJ; F04-73562-PJ; F04-73563-PJ.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS. Opinion By Justice BRIDGES.
OPINION
Roscoe Douglas, III, appeals his aggravated assault convictions in cause numbers 05-06-01531-CR and 05-06-01532-CR, his burglary of a habitation conviction in cause number 05-06-01533-CR, and his aggravated robbery conviction in cause number 05-06-01534-CR. A jury convicted appellant and sentenced him to fifteen years' confinement in cause number 05-06-01531-CR, twenty years' confinement in cause number 05-06-01532-CR, sixty years' confinement in cause numbers 05-06-01533-CR and 05-06-01534-CR. In eight points of error, appellant challenges the factual sufficiency of the evidence to support his convictions and argues the trial court abused its discretion in admitting a letter he wrote from jail. We affirm the trial court's judgment. Sametra Norman testified she started dating appellant in June 2004 but decided to end the relationship after about four months. At the time, Norman was living with appellant and a freind named Wonona Wyn in an apartment leased by Norman's sister, Tenisha Smart. Norman did not tell appellant she wanted to end their relationship but "acted differently toward him." Norman believed appellant was "getting the message," and appellant told her he would kill her and "anybody that [she] tried to be with" if she tried to leave him. About a month before the night of the offenses, Smart told appellant he was not welcome at the apartment. Though appellant was not staying at the apartment prior to the offenses, he had some clothes and a gun in the apartment. A few days before the offenses, Norman received a letter from appellant that he wrote while in jail. The letter stated it was in Norman's "best interest to read this" and said appellant was not "going to just accept you breaking up with me." The letter said appellant was going to call his cousin to come get him "because my pistol is at his house, and I'm going straight to you hoping I catch you" with another man so appellant could "whack" him. Norman was scared when she received the letter. A day or two later, appellant knocked on Norman's door, and she let him in the apartment. Norman "played it cool" because she was scared of appellant. Appellant again told Norman that he would kill her if she left him. On September 5, 2004, Norman was with her four-year-old girl, Norman's friend Kerri Dial, and Dial's four-year-old daughter at Norman's apartment. Dial asked if she and her daughter could spend the night with Norman because Dial was in the process of getting an apartment and had no place to stay. Norman agreed. Appellant was also at Norman's apartment along with two other men, Dwayne Watson and Keith Dotson. Appellant stayed at the apartment for approximately two hours. Appellant asked for money to buy cigarettes and asked to borrow Norman's car, but she refused. Appellant cussed Norman and left. Norman had hidden her car keys in her purse, but she went to sleep and discovered when she woke up that her car was gone. Norman woke Dial up and asked to use Dial's car to go look for appellant, but Norman decided not to look for appellant by herself. Instead, from inside Dial's car, Norman called her sister, Tenisha Smart, to take her to look for appellant and her car. About ten minutes later, Smart arrived. Norman, getting out of Dial's car, saw appellant drive up in Norman's car. Appellant gave Norman her keys and started walking toward Norman's apartment. Norman told appellant he couldn't be there, but appellant said he "wasn't trying to hear it." Smart told appellant he had to leave, and appellant "said he wasn't going nowhere, and he kind of like got real angry and flinched at [Smart] like he was going to hit her." Appellant did not hit Smart, but they argued, and appellant went back in the apartment and grabbed his shotgun from inside the apartment and ran out the front door. Smart left but pulled up again two or three minutes later to tell Norman that appellant was "around the corner on some girl's porch standing outside." Smart asked Norman and Dial to leave with her, but they went back inside the apartment. Dial went to sleep on the couch, and Norman went into her daughter's room where she fell asleep. At around 5:00 a.m., Dial woke Norman up and told her someone was knocking on her door. Norman looked out the peep hole and saw appellant with his gun. Norman turned away from the door, and appellant started kicking on the door. Norman ran to her daughter's room because she was scared. Appellant succeeded in kicking down the door, and he came inside the apartment. Norman heard Dial tell appellant that "he wasn't going to come back there with that gun," and appellant responded, "it wasn't loaded." Appellant said he just wanted to talk to Norman and told Dial to "stay out of it." Dial asked if "she could just get our kids and leave out," but appellant told her no and "slammed the front door closed and locked it and said no one's going nowhere." Appellant said he had "smoked a 50 bottle of Wet," which Norman understood was a drug, PCP. Appellant asked for Dial's cell phone, but Norman would not respond to him, and appellant pointed the shotgun at her. Dial told Norman, "now ain't the time to be ignoring him," and Norman gave the phone to appellant. Appellant threw the phone against the wall and broke it. Appellant was "screaming and yelling." By this time, Norman's daughter had come out of her bedroom, and Norman picked her up. As Norman held her daughter, appellant hit Norman across her back with the butt of the shotgun. Norman fell back on the couch where she stayed, holding her daughter and "rocking and praying" while appellant continued to scream at her. Dial stood at the front door begging appellant to put the gun down, but appellant was too focused on Norman. Dial picked up a baseball from the floor and tried to hit appellant with it. Appellant turned around and shot Dial, who grabbed the shotgun barrel as she fell. Appellant pushed Dial off the gun and kicked her. Appellant "freaked out." Norman, who was standing now, realized Dial had been shot when she saw Dial "dragging her body towards the front door." Norman's daughter had run back to her room, and appellant told Norman to get his identification and social security card, which he had asked Norman to keep for him. Earlier, appellant had seen Norman and Dial counting approximately $500 they were putting together for a deposit on an apartment. Appellant now demanded all the money along with his identification. Norman went to her bedroom to get the money and identification, and appellant stayed at the front door and screamed for Norman to hurry up. Norman brought appellant all the money and his identification, which he stuffed in a backpack before running out the door. After appellant ran away, Norman was "panicked" and afraid to go outside because she thought appellant was still out there. Dial, who was "getting woozy," asked Norman to get help. Norman ran outside and found a man named Tony talking on a cordless phone, which Norman used to call her grandmother and an ambulance. Police officers and an ambulance arrived at the scene, and Norman was able to give police appellant's identification card that he had dropped at the apartment door. Appellant was charged with aggravated assault against Norman and Dial; burglary of a habitation with intent to commit a felony other than theft, namely, aggravated assault against Norman; and aggravated robbery of Dial. A jury convicted appellant in each case, and these appeals followed. In his first, second, third, and fourth points of error, appellant argues the evidence is factually insufficient to support his convictions. When reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). A person commits aggravated assault with a deadly weapon if he intentionally or knowingly threatens another with imminent bodily injury and if he uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2007). A deadly weapon is defined, in part, as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Tex. Penal Code Ann. § 1.07(17)(A) (Vernon Supp. 2007). A person commits the offense of burglary of a habitation if, without the effective consent of the owner, the person enters a habitation with the intent to commit a felony, theft, or assault or enters a habitation and commits or attempts to commit an assault. Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003). A person commits the offense of aggravated robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(1), (2) (Vernon 2003). Here, Norman testified appellant, armed with a shotgun, kicked in the door of her apartment and entered the apartment. Once inside, appellant threatened Norman and Dial with a shotgun and hit Norman with the butt of the shotgun and shot Dial. Appellant demanded money and a cell phone, which Norman surrendered to appellant. Appellant stuffed the money in a backpack and ran away. In contrast, appellant testified he was arrested on August 16, 2004 for a misdemeanor and released on September 3, 2004. While in jail, he wrote a letter to Norman because he was upset that he had discovered from the jail doctor that he had contracted a sexually transmitted disease which only Norman could have transmitted to him. When appellant was arrested, appellant had eight pints of codeine in a closet at Norman's apartment, but when he got out there were only three pints left. Appellant determined Norman had been selling the codeine while appellant was in jail. Appellant went to see Norman on September 3, 2004, and they had sex. Dial was asleep on the couch in the apartment, and Norman left to go to work. Appellant went to visit his mother who lived "practically around the corner." After a few hours, appellant returned to Norman's apartment and watched a movie with Dial. About 7:30 p.m., Norman returned home, some friends came over, and they smoked marijuana. Appellant called his cousin, who picked up appellant and took him to a football game. Appellant returned to the apartment, and he and Norman had sex again. The next day, appellant woke up at the apartment and was present when Smart came by and told him she did not like appellant being with Norman. Appellant said he did not have to explain anything to Smart. Dwayne Watson came to the apartment, and he and appellant smoked marijuana and watched a movie. Norman came home with Dial and, since Norman had been paid, she went and bought more marijuana. That night, about 1:00 or 2:00 a.m., appellant and Norman had sex again. Appellant left to buy beer and came back to the apartment. Appellant heard a friend knock on the door and tell him Crystal Cooper wanted to talk to him. Appellant knew this meant "a flirtatious kind of talk." Appellant went out and "kind of got involved with" Cooper in another apartment until he heard a knock on the door. When appellant looked out the peep hole, he saw Norman standing outside. When appellant opened the door, he saw Dial was also outside, and she and Norman were threatening Cooper and telling Cooper to come outside. According to appellant, both Norman and Dial had baseball bats. Appellant told Cooper to lock the door, and he went back to Norman's apartment with Norman and Dial. After returning to Norman's apartment, appellant and Norman "were sitting in the back talking." Norman went to the front of the apartment to get some water, and appellant could hear Dial accusing him of "messing with that girl." Appellant prepared to leave the apartment with his codeine and his shotgun, but he turned back about six feet from the door to ask Norman to retrieve his cousin's cell phone from inside. Instead, Norman brought Dial's cell phone, and appellant became "frustrated" because he thought Norman was "just playing with" him. Appellant threw the phone at Norman, but it hit the wall and broke. Dial told appellant, "bitch, I know you ain't just broke my phone." At the same time, appellant approached Norman and raised his hand to slap her, but he saw Dial moving in his peripheral vision. Dial had the butt of the shotgun, and appellant tried to pull it away from her, causing Dial's hands to slide down and the gun to fire. Appellant testified he did not take any of Norman's or Dial's money and did not point the shotgun at either of them with the intention of fighting them. When the shotgun fired, appellant knew Dial had been shot, and he panicked and left. The jury was free to believe Norman's testimony and disregard appellant's testimony that he did not threaten Norman or Dial or take their money, and the shotgun fired accidentally. See Jones, 944 S.W.2d at 647-48; Harvey, 135 S.W.3d at 717. We conclude this evidence is factually sufficient to show appellant committed aggravated assault against Norman and Dial, burglary of Norman's habitation, and aggravated robbery against Dial. See Tex. Penal Code Ann. §§ 22.02(a)(2); 29.03(a)(1), (2); 30.02(a)(1), (3) (Vernon 2003); Watson, 204 S.W.3d at 415. We overrule appellant's first, second, third, and fourth points of error. In his fifth, sixth, seventh, and eighth points of error, appellant argues the trial court erred in admitting the letter he wrote Norman from jail. Specifically, appellant argues the probative value of the letter was substantially outweighed by its unfair prejudice and inflammatory nature. Rule of evidence 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). For example, evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Id. Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under rule 404(b). Id. However, even if the evidence is relevant, and the purpose for which it is being offered is permissible under rule 404(b), it may still be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id. A trial court's admission of extraneous offense evidence is reviewed for an abuse of discretion. Moses, 105 S.W.3d at 627. Whether extraneous offense evidence has relevance apart from character conformity, as required by rule 404(b), is a question for the trial court. Id. When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Id. Here, appellant objected to the admission of the letter because it was highly prejudicial and its rough language would inflame the jury. Appellant objected, "this jury is going to be shocked, because they're not familiar with this kind of language." The trial court noted the letter contained "a number of slang terms" including "hoe," "ass," and "shit." The prosecutor argued the letter was admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. The letter stated it was in Norman's "best interest to read this" and said appellant was not "going to just accept you breaking up with me." The letter said appellant was going to call his cousin to come get him "because my pistol is at his house, and I'm going straight to you hoping I catch you" with another man so appellant could "whack" him. Having reviewed the record and the testimony in this case, we cannot conclude the trial court abused its discretion in admitting the letter to rebut the defensive theory that appellant was innocent, he was at Norman's apartment with Norman's consent, appellant never threatened anyone with the shotgun, and Dial went for the shotgun to attack appellant before it went off as he was trying to take it away from her. See Moses, 105 S.W.3d at 627. We overrule appellant's fifth, sixth, seventh, and eighth points of error. We affirm the trial court's judgments.