Nos. 05-08-00249-CR, 05-08-00250-CR
Opinion Filed July 21, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F07-52842-N F07-52843-N.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
Opinion By Justice MORRIS.
In a single trial, a jury convicted Marvin Clarence Presley of assault on a public servant and attempting to take a weapon from a peace officer. He complains on appeal that the trial court erred in admitting testimony showing he threatened the peace officer's life. Concluding the trial court did not abuse its discretion, we affirm the trial court's judgment.
Factual Background
After a convenience store clerk called police to report a theft in progress, Dallas Police Officer Terrance Burley saw appellant leaving the store and began to pursue him. Burley chased appellant for approximately a quarter of a mile before he caught him. As Burley struggled to apprehend appellant, appellant punched Burley several times, hitting him in the face, in the back, and in the back of his head. During the five-minute struggle, Burley felt appellant attempt to pull the gun out of his holster. Burley thought he "was going to die right there." Appellant injured Burley so severely that by the time backup officers arrived at the scene, Burley was lying on the ground, with appellant on top of him. It appeared to the backup officers that Burley was in shock or losing consciousness. Burley was treated for his injuries at Parkland Hospital. Outside the presence of the jury, Burley testified that as he attempted to arrest and handcuff appellant, appellant asked Burley to let him go and told Burley he could not go back to jail. Burley replied that he could not let appellant go. Then appellant said, "I'm going to take your gun and I'm going to kill you." Appellant objected that the statement was hearsay and alluded to terroristic threats. He further requested that the trial court determine whether the probative value of the evidence would exceed its prejudicial effect on the jury. The trial judge responded as follows: The Court does note that the indictment alleges the offense of assault on a public servant and attempt to take a weapon from a police officer.
The Court's opinion is that the testimony proffered is admissible. With respect to a balancing test the Court finds that the probative value of the evidence proffered has outweighed any prejudicial effect to the defendant and [is] not only part of the res gestae, the offense and arrest, but part of the operative facts of the case and also constitutes background contextual evidence. And for those reasons, the statements are admissible.
When the State introduced similar testimony before the jury, appellant renewed his earlier objection. The trial court again overruled the objection. Discussion
Appellant complains in his sole issue that the trial court abused its discretion in admitting his threat to take Burley's gun and kill him. He argues the statement amounted to evidence of an extraneous offense offered during the guilt-innocence phase of trial. He asserts the statement was not probative of either charged offense and further asserts that the statement's prejudicial effect outweighed its probative value. We review the trial court's decision to admit evidence under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). It may, however, be admissible for other purposes, such as proof of intent or absence of mistake or accident. See id. Relevant evidence may nevertheless be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex. R. Crim. Evid. 403. Here, appellant's threat to take Burley's gun and kill him was probative evidence of his precise intentions at the time he was assaulting Burley. It offered significant proof of appellant's commission of the charged offense of attempting to take a weapon from a peace officer "with the intention of harming the officer." See Tex. Penal Code Ann. § 38.14(b) (Vernon Supp. 2008). The fact that it may have demonstrated his guilt for additional offenses as well does not render the evidence inadmissible. C.f. McWherter v. State, 607 S.W.2d 531, 535-36 (Tex.Crim.App. 1980) (holding evidence of flight generally probative of guilt and fact that circumstances of flight incidentally show the commission of another crime does not render evidence inadmissible). Under Rule of Evidence 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, — — S.W.3d —, 2009 WL 928561 at * 8 (Tex.Crim.App. Apr. 8, 2009). In its rule 403 analysis, the trial court must balance (1) the inherent probative force of the proffered evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-642 (Tex.Crim.App. 2006). Given the testimony's direct proof of appellant's intentions and the context of appellant's brutal assault on the officer, we cannot conclude the trial court abused its discretion in admitting the evidence. We resolve appellant's sole issue against him. We affirm the trial court's judgment.