Opinion
No. 09-08-00011-CR
Submitted on September 21, 2009.
Opinion Delivered October 14, 2009. DO NOT PUBLISH.
On Appeal from the 356th District Court, Hardin County, Texas, Trial Cause No. 18346.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
A jury convicted appellant Brian Wayne Drake of first-degree felony murder and assessed his punishment at sixty years in prison. Appellant presents eight issues for review. Finding no reversible error, we affirm the trial court's judgment. Appellant and his brother, David, were involved in an altercation with their former stepfather, Willard French, at Willard's home in Hardin County, Texas. Sandy French, appellant's mother, witnessed Willard hit David, throw furniture at appellant, and then continue to struggle with David. Sandy called 9-1-1. She saw appellant standing over Willard. Appellant stabbed and cut Willard with a knife. Willard died as a result of the incident. The following day, Chambers County law enforcement received information that appellant was living in Winnie. A deputy located appellant and the deputy and an investigator with the Chamber's County Sheriff's Department attempted to approach him. Appellant got in his truck and a chase ensued. Law enforcement officials stopped appellant and arrested him. In his first issue, appellant asserts that the State's jury argument was a comment on the failure of appellant to testify. However, appellant did not object to the argument. See Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) ("Before a defendant will be permitted to complain on appeal about an erroneous jury argument. . ., he will have to show he objected and pursued his objection to an adverse ruling."); Cacy v. State, 942 S.W.2d 783, 784 (Tex. App.-Waco 1997, pet. ref'd) (refusing to address merits of unobjected to jury argument where defendant argued his constitutional rights were violated as a result of prosecutor's improper jury argument). We overrule issue one. In issue two, appellant asserts the trial court erred in allowing the State, over appellant's objection, to introduce appellant's general reputation as character evidence when appellant had not placed his reputation at issue. By his third issue, appellant maintains the trial court should have granted appellant's motion for mistrial after the State presented this evidence. Generally, "[e]vidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]" Tex. R. Evid. 404(a). Rule 404(a) of the Texas Rules of Evidence provides limited exceptions to this general rule. Id. Rule 404(a)(1)(a) states that in a criminal case, "[e]vidence of a pertinent character trait" of the defendant may be offered by the defendant, or by the prosecution "to rebut the same[.]" Id. 404(a)(1)(a). Appellant complains of the following testimony by a Chamber's County Sheriff's Department deputy:
[State:] Okay. Did you — what did you do next?
[Witness:] At that point whenever I was in the What-A-Burger parking lot, I observed a truck matching the same description that Deputy Rosetta told me about and I also observed a white male matching the same description, wearing coveralls, matching the same description Deputy Rosetta told me.
At that point I was told — prior to this I was told by Deputy Rosetta that the suspect may have a scanner, so, not — if I do see him, don't put it across the radio. So, at that point I picked up my cell phone and I called Investigator Rabalais. I was also told not to approach the suspect, you know, by myself because he possibly could be armed, did not know. I was also told that information was he had violent tendencies.
[Defense Counsel]: Your Honor, I'm going to object. That is hearsay. We're not —
THE COURT: Sustained.
[Defense Counsel]: And, Your Honor, I'd ask that be stricken from the testimony.
THE COURT: That's sustained.
[Defense Counsel]: I would ask the jury be asked to disregard that.
THE COURT: Ladies and gentleman, disregard the comments of the deputy.
[Defense Counsel]: And I would ask that a motion for mistrial be heard.
THE COURT: Be denied.The trial court sustained appellant's hearsay objection, struck the testimony, and instructed the jury to disregard the evidence. The trial court did not allow the testimony into evidence. Furthermore, although defense counsel objected to the hearsay nature of the testimony, the record contains no contemporaneous objection on the ground that the testimony constituted impermissible character evidence under Texas Rule of Evidence 404(a). See Tex. R. Evid. 404(a); Tex. R. App. P. 33.1. "`An objection stating one legal theory may not be used to support a different legal theory on appeal.'" Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). Appellant failed to preserve any error on the ground he now argues on appeal. See Tex. R. App. P. 33.1. The second instance appellant complains of occurred during the testimony of a Hardin County Sheriff's deputy. Anticipating that the State intended to question the deputy on appellant's reputation in the community, appellant questioned the witness on voir dire and the deputy stated his opinion of appellant was not based on personal knowledge. Appellant objected to the admission of the evidence based on hearsay and the trial court overruled that objection. The deputy then testified in the jury's presence that appellant's reputation in the community was that he was "a fighter" and "a brawler[.]" Appellant did not object to the testimony on the ground he now asserts on appeal, and therefore failed to preserve the complaint. See Tex. R. App. P. 33.1; see also Broxton, 909 S.W.2d at 918. Moreover, the jury heard Willard's daughter testify, without objection, that appellant had previously attacked Willard more than ten times. On this record, the admission of the deputy's testimony does not require reversal of the judgment. See Tex. R. App. P. 44.2. Issues two and three are overruled. Appellant argues in his fourth issue that the jury charge was so misleading that it caused him egregious harm as a matter of law. He maintains that although he received an instruction concerning his theory of self-defense, the application paragraph of the jury charge failed to apply it to the facts here. He argues that the jury charge not only allowed the jury to convict him even if they believed he acted in self-defense, but also did not require the State to disprove self-defense beyond a reasonable doubt before allowing the jury to convict him. When reviewing a challenge to the jury charge, we first determine whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). This requires our examination of the charge as a whole. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). If an appellate court determines error exists and the charge is inadequate, the court then determines whether any resulting harm necessitates reversal. Ngo, 175 S.W.3d at 743. Section 2.03(d) of the Texas Penal Code requires the trial court to instruct the jury it must acquit the defendant if it has reasonable doubt on the existence of a defensive issue. Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003). The jury charge submitted to the jury provided the law on self-defense as well as defense of third parties, and then included application paragraphs on the defensive issues. The trial court instructed the jury in its charge with an application paragraph on the elements of the offense of murder. Although the application paragraph on the elements of murder made no mention of self-defense, the charge included a separate application paragraph on the defensive issues. The combination of the application paragraphs are logically consistent. See Plata, 926 S.W.2d at 304; see also Wingo v. State, 143 S.W.3d 178, 190 (Tex. App.-San Antonio 2004), aff'd, 189 S.W.3d 270 (Tex. Crim. App. 2006) ("We do not believe the trial court's arrangement of the jury charge was illogical or that placing the defensive instructions after the application paragraph was the only logical arrangement."); Peterson v. State, No. 05-99-01054-CR, 2001 Tex. App. LEXIS 4736, at **11-12 (Tex. App.-Dallas July 12, 2001, no pet.) (not designated for publication) (rejecting contention that "the trial court was required to include the elements of the offense and the elements of any defensive issues into one application paragraph"). Issue four is overruled. In his fifth issue, appellant contends he was denied the right to be indicted by grand jury because the trial court allowed the State to amend the indictment to include alternate means of committing the offense. After a hearing months before trial, the trial court granted the State's motion to amend the indictment. The State filed the amended indictment as an attachment to the motion. The indictment should include everything which is "necessary to be proved." Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 2009). "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Id. art. 21.04 (Vernon 2009). "After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences." Id. art. 28.10(a) (Vernon 2006). Upon the defendant's request the court must allow the defendant not less than ten days, or a shorter period if requested by the defendant, to respond to the amendment. Id. "An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced." Id. art. 28.10(c) (Vernon 2006). A defendant who fails to object to a defect of form or substance in an indictment before trial begins loses the right to later complain about the defect on appeal. Id. art. 1.14(b) (Vernon 2005); Kirkpatrick v. State, 279 S.W.3d 324, 327 (Tex. Crim. App. 2009). In this case, appellant did not object to the amendment. See Tex. Code Crim. Proc. Ann. arts. 1.14(b), 28.10; Kirkpatrick, 279 S.W.3d at 327-28. Issue five is overruled. In issues six and seven, appellant challenges the trial court's rulings excluding and limiting testimony regarding Willard's reputation as a dangerous and violent person. Specifically, appellant argues that the trial court erred in excluding portions of Sandy's testimony concerning specific events of violence by Willard against her. Prior to trial, the State filed a motion in limine and requested that the court restrict appellant from eliciting testimony or evidence at trial regarding violence between Sandy and Willard. The trial court granted that portion of the motion and asked that at trial the parties approach the bench if they wanted to discuss anything about the violence as to Sandy, and the trial court would then make a ruling. The State objected when appellant attempted to introduce evidence of violence by Willard against Sandy at trial. The State objected on the basis of relevance and on the basis that under Rule 403 this evidence would be unfairly prejudicial. See Tex. R. Evid. 403. Appellant argued that this evidence was relevant to show his state of mind during the altercation and that he justifiably acted in self-defense. The trial court sustained the State's objection and excluded the testimony. A victim's extraneous acts of violence may be relevant to show the defendant's state of mind. Tex. R. Evid. 404(b); Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998). Texas Rule of Evidence 403 states, however, that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Therefore, "while evidence may be admissible under Rule 404 the trial court may nevertheless exclude the same evidence if it determines, within its discretion, that the probative value of such evidence is substantially outweighed by its unfair prejudice." Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). There was no evidence that at the time of the altercation appellant and his brother were defending their mother against a violent act by Willard. The trial court allowed evidence of previous specific acts of violence between Willard and appellant and Willard and David, but not evidence of specific acts of violence between Willard and Sandy. As to Sandy's testimony of specific acts of violence by Willard against her, the State made a Rule 403 objection. See Tex. R. Evid. 403. Under the circumstances presented, considering the other evidence of Willard's violence admitted by the court, the trial court did not err in excluding the specific evidence. See Mozon, 991 S.W.2d at 846. Issues six and seven are overruled. Appellant maintains in his eighth issue that the trial court erred in allowing the State to introduce evidence of extraneous offenses over his objection. Prior to trial, the State provided appellant notice of its intent to introduce certain extraneous offenses at trial. See Tex. R. Evid. 404(b). The State introduced testimony at trial that appellant encountered law enforcement in another county the day after the charged offense; after appellant evaded law enforcement, a police chase ensued. Appellant objected to the testimony on the grounds that he was not given notice that the State would attempt to introduce this evidence and that it was not related to the charged offense. The State acknowledged that the evidence was not included in its notice of intent to introduce extraneous offenses that it provided to appellant, but argued at trial that the evidence was contextual to the charged offense and relevant. The trial court overruled appellant's objection. We review a ruling admitting evidence for abuse of discretion and must uphold the trial court's admissibility ruling if it falls "within the zone of reasonable disagreement." Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We must reverse the trial court's ruling admitting the evidence if the ruling "is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Pursuant to Texas Rule of Evidence 404(b), evidence of "other crimes, wrongs or acts" is inadmissible "to prove the character of a person in order to show action in conformity" with that character. Tex. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" if the State, upon timely request by the accused in a criminal case, provides the accused with notice of the State's intent to use such evidence. See id. The notice requirement does not apply when the evidence arises from the same transaction. McDonald, 179 S.W.3d at 577. "[S]ame transaction contextual evidence is admissible `only to the extent that it is necessary to the jury's understanding of the offense.'" Id. (quoting England v. State, 887 S.W.2d 902, 915 (Tex. Crim. App. 1994)). Evidence of flight or escape may be admissible evidence from which an inference of guilt may be drawn as long as it appears that the flight or escape has some legal relevance to the offense under prosecution. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). Flight is no less relevant if it is to avoid arrest. Id. "[A] lapse of time between commission of the offense and the defendant's flight does not always adversely affect admissibility of the flight." Id. As long as any extraneous offenses committed while in flight are shown to be necessarily related to the circumstances of the defendant's flight, they may be admissible. Id. Moreover, circumstances surrounding an arrest are generally admissible unless that evidence is "`inherently prejudicial and has no relevance to any issue in the case[.]'" Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985) (quoting Hernandez v. State, 484 S.W.2d 754, 755 (Tex. Crim. App. 1972); see also Tex. Code Crim. Proc. Ann. art 38.36(a) (Vernon 2005). Appellant had been identified as the person who used the knife in the altercation with Willard and his flight when confronted by the police was relevant to the issue of whether or not he committed the crime. See Burks v. State, 876 S.W.2d 877, 903-904 (Tex. Crim. App. 1994). The relevancy requirement was satisfied. Nothing suggests that his flight to avoid arrest was related to circumstances other than the charged offense. Id. The trial court did not err in admitting the evidence. We overrule appellant's eighth issue. The trial court's judgment is affirmed. AFFIRMED.