ORR v. STATE

Full title: BURNEY WILLIAM ORR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 27, 2009

No. 05-07-01086-CR (Tex. App. Feb. 27, 2009)

Opinion

No. 05-07-01086-CR

Opinion issued February 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80157-06.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

MEMORANDUM OPINION

Opinion by Justice MOSELEY.

A jury convicted Burney William Orr of four counts of the second degree felony offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1), (d) (Vernon 2003).¹ The jury then sentenced appellant to eight years' confinement for each count, and the trial court ordered the sentences to run concurrently. In a single issue, appellant contends the trial court abused its discretion in admitting evidence of extraneous offenses during the punishment phase. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.

1 The record on appeal does not include the reporter's record of the guilt/innocence phase. Appellant does not raise any issues directed to the guilt/innocence phase of the trial.

EXTRANEOUS OFFENSE EVIDENCE

Appellant filed a pre-trial application for probation. At the beginning of the punishment phase, the State informed the jury that it could take into consideration all the evidence it had heard in the guilt/innocence phase. Appellant called seven witnesses. Their testimony established that appellant was convicted of sexual contact with his step-daughter, who was ten years old at the time of the offenses. Appellant's witnesses generally testified they did not believe appellant had committed the offenses of which he had been convicted and he did not deserve imprisonment. The State called Karen Orr, appellant's former wife and the mother of the complainant, and asked her whether appellant told her "about the time when he was a boy and the things he used to do with the neighborhood boys" that alarmed her. Appellant objected and requested a hearing. Outside the presence of the jury, Orr testified appellant told her that, when he was a boy, he and other neighborhood boys had anal sex with each other; they would "take turns practicing on one another"; and appellant "preferred to give than to receive." Appellant also told Orr that he had been accused of a sexual offense in the past involving his brother Ricky's daughter. Orr did not remember which one of two named children was involved. She said appellant did not say specifically what conduct had occurred; appellant told Orr it was "just messing with them." Further, Orr testified appellant and Ricky were "not close at all," and Ricky and his daughters never came around her and appellant. On cross-examination, Orr was asked when appellant told her about "this boyhood sex thing." She did not remember exactly, but stated "it was definitely long after we got married." She did not remember exactly what appellant's words were; he did not describe the sexual conduct in detail, but "he was not joking." Orr testified she did not know how old appellant was when that conduct occurred. Appellant objected that Orr's testimony was irrelevant and the prejudicial effect greatly outweighed any probative value. The trial court overruled appellant's objections and admitted the evidence. Most of the above testimony was then elicited from Orr before the jury.

ISSUE ON APPEAL AND STANDARD OF REVIEW

Relying on code of criminal procedure article 37.07, section 3(a)(1) and Texas Rules of Evidence 401 and 403, appellant argues the trial court abused its discretion in admitting Orr's testimony outlined above about extraneous offenses. The trial court is given wide latitude to admit or exclude evidence of extraneous offenses. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990) (op. on reh'g); Sanders v. State, 255 S.W.3d 754, 760 (Tex.App.-Fort Worth 2008, pet. ref'd). We do not reverse a trial court's ruling on the admissibility of evidence if it is within the "zone of reasonable disagreement." Sanders, 255 S.W.3d at 760 (quoting Montgomery, 810 S.W.2d at 391).

RELEVANCE

In pertinent part, article 37.07, section 3(a)(1) provides:

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . ., the circumstances of the offense for which he is being tried, and, . . ., any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. . . . .

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008). The admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevance. Rodriguez v. State, 203 S.W.3d 837, 842 (Tex.Crim.App. 2006). This is so because, by and large, there are no discrete factual issues at the punishment phase. Miller-El v. State, 782 S.W.2d 892, 895-96 (Tex.Crim.App. 1990). There are simply no distinct "fact[s] . . . of consequence" that proffered evidence can be said to make more or less likely to exist. Id. at 896 (quoting Tex. R. Evid. 401). Rather, deciding what punishment to assess is "`a normative process, not intrinsically factbound.'" Id. (citation omitted). Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rodriguez, 203 S.W.3d at 842; Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). In determining whether evidence is admissible, we consider the following policy reasons: admitting the truth in sentencing, giving complete information for the jury to tailor an appropriate sentence for appellant, and the policy of optional completeness. Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000). Appellant argues Orr's testimony was "so incomplete" and "devoid of any details" as to be irrelevant. However, Orr's testimony concerned appellant's past sexual conduct and improper gratification. Any issues as to truthfulness or lack of detail in Orr's testimony go to the weight, not the admissibility, of this evidence and were for the jury's determination. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007) ("Unless otherwise provided in this Code, the jury is the exclusive judge of the facts,. . . ."). See also Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996) (applying article 36.13 to punishment phase evidence). We cannot conclude the trial court abused its discretion in deciding that Orr's testimony concerning appellant's past sexual behavior would be helpful to the jury in determining an appropriate sentence for appellant in this particular case. See Rodriguez, 203 S.W.3d at 842; Mendiola, 21 S.W.3d at 285; Rogers, 991 S.W.2d at 265. We reject appellant's argument that the trial court abused its discretion in admitting Orr's testimony on grounds of relevance.

RULE 403

Relevant evidence is generally admissible, but it is properly excluded under rule of evidence 403 when "its probative value is substantially outweighed by the danger of unfair prejudice." Reese v. State, 33 S.W.3d 238, 240 (Tex.Crim.App. 2000) (quoting Tex. R. Evid. 403). Evidence is unfairly prejudicial when it has "an undue tendency to suggest that a decision be made on an improper basis, commonly, though not necessarily, an emotional one." Id. (citing Montgomery, 810 S.W.2d at 389); Rogers, 991 S.W.2d at 266. When reviewing a trial court's decision to admit evidence, we presume the probative value outweighs any prejudicial effect. Montgomery, 810 S.W.2d at 389. We consider the following criteria: (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible, way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Reese, 33 S.W.3d at 240-41. In overruling a rule 403 objection, the trial court is assumed to have applied the rule 403 balancing test and determined the evidence was admissible. Isenhower v. State, 261 S.W.3d 168, 178 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Orr's testimony was probative on the issue of appellant's sexual conduct. Orr's testimony would not have irrationally impressed the jury because, during the guilt/innocence phase, it would have heard details concerning appellant's sexual conduct toward the complainant. The time needed to develop the evidence was minimal compared to the length of time devoted to appellant's witnesses; the time devoted to Orr's testimony was primarily taken up by the objections, not the time needed to develop it before the jury. Finally, the State needed the evidence in light of appellant's witnesses' testimony regarding their belief appellant could not have engaged in the conduct constituting the offenses for which he had been convicted; some witnesses testified they would not restrict appellant's access to children in their care even after his conviction. There was evidence that appellant had children and had not expressed any remorse for his conduct towards the complainant. Appellant argues Orr's testimony "amounted to nothing more than [appellant] being deemed a sexual deviant monster" without the State or Orr "being required to back up the claims." However, to the extent Orr's evidence showed appellant's sexual conduct with children, we cannot say it was unfairly prejudicial. See Nenno v. State, 970 S.W.2d 549, 564 (Tex.Crim.App. 1998) (in trial for rape and murder of child, rejecting rule 403 challenge to testimony of another child regarding sexual conduct, showing defendant as a "child molester"), overruled in part on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999). Finally, because there was no evidence of any previous conviction, we cannot agree with appellant's argument he was "allowed to be punished as a repeat offender," although he was convicted of "one mistake." We reject appellant's argument that the trial court abused its discretion in admitting Orr's testimony on grounds that its probative value was substantially outweighed by the danger of unfair prejudice.

CONCLUSION

Having rejected appellant's arguments that the trial court abused its discretion in admitting evidence of extraneous offenses during the punishment phase of the trial, we resolve appellant's single issue against him. We affirm the trial court's judgment.