Opinion
NO. 14-16-00231-CR
02-01-2018
JORDAN MARQUI GRANT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13 Harris County, Texas
Trial Court Cause No. 2054134
MEMORANDUM OPINION
A jury found appellant Jordan Marqui Grant guilty of assault causing bodily injury and assessed punishment at 365 days in the county jail. See Tex. Penal Code § 22.01(a)(1), (b). Appellant contends that that the trial court erred by limiting his cross-examination of the complainant concerning her pending shoplifting charge. And appellant contends that he suffered egregious harm from the omission of several jury instructions in the punishment charge. We affirm.
I. BACKGROUND
Appellant lived in an apartment with a roommate. One day, the roommate's girlfriend left her bag with the roommate. The girlfriend returned to the apartment to retrieve the bag. The roommate did not give the girlfriend her bag.
The girlfriend called her mom, the complainant, to the scene. When the complainant arrived, she had an "exchange" with the roommate while the complainant stood in the parking lot near the apartment building. They were yelling at each other.
From this point on, most of the encounter was captured on the apartment complex's surveillance video. The video was admitted into evidence.
When the roommate got in his car to leave, the complainant stood in the way of the car door so it could not close. The roommate backed up the car. The girlfriend testified that the complainant was "trying to stop him, so she hopped on, like, the door like inside area." The complainant then rode on the car, in the doorjamb with the door open, while the roommate drove around the apartment complex. The complainant testified that they were "having a conversation." The car started and stopped a few times and then returned to the scene.
While the complainant and the roommate were going for a drive, the roommate's friend attacked and fought with the girlfriend in the parking lot. Appellant broke up the fight.
The roommate got out of his car and threw the complainant to the ground. Then, the complainant got in the driver's seat of the car and closed the door. The complainant testified that her intent was to "go out the other side" of the car to get to the girlfriend. She testified that she was not trying to steal the car. She testified, "I tried to go out the door; but I said, no, I'm just going to stay here." She "wedged" herself into the driver's seat. She testified that the roommate was saying, "Get out of my car, Get out of my car." The roommate "started calling people." The roommate, assisted by appellant and the roommate's friend, removed the complainant from the car. In the process, appellant hit the complainant in the face and bruised her arm.
The jury rejected appellant's claim of third-party-property-defense and found him guilty of assault causing bodily injury. After the punishment phase, the jury assessed a sentence of confinement at the maximum of 365 days in jail.
II. EXCLUSION OF EVIDENCE
In his first issue, appellant contends that the trial court erred by limiting his cross-examination of the complainant about a pending unadjudicated theft. He contends that the complainant's denial of an intent to steal the car is "akin to a defensive theory of lack of intent." Accordingly, appellant contends that he should have been allowed to question the complainant about the pending theft charge under Rule 404(b) to rebut her defense and show intent. We hold that the trial court did not abuse its discretion by ruling that the evidence was irrelevant.
A. The Excluded Evidence
Outside the jury's presence, appellant asked for the opportunity to cross-examine the complainant about an "open theft case" to show that her intent was to commit a theft of the roommate's car. Appellant cited Rule 404(b) of the Texas Rules of Evidence. During the offer of proof, the State acknowledged that the complainant had a pending theft charge for "shoplifting." No details of the pending charge were elicited. The trial court ruled that evidence of the pending theft charge was irrelevant.
The parties and trial court referred to the procedure as a "bill." See Fletcher v. Minn. Min. & Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (noting that an offer of proof was formerly referred to as an "informal bill of exception"); see also Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993) ("An informal bill will suffice as an offer of proof when it includes a concise statement of counsel's belief of what the testimony would show.").
B. Legal Principles for Extraneous Offenses
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. De La Paz v. State, 279 S.W.3d 336, 342 (Tex. Crim. App. 2009); see Tex. R. Evid. 404(b)(1). But such evidence may be admissible for other purposes. See Tex. R. Evid. 404(b)(2); De La Paz, 279 S.W.3d at 342. To be admissible, the evidence must be relevant to a material, non-propensity issue. See De La Paz, 279 S.W.3d at 344. One such issue may be intent. See Tex. R. Evid. 404(b)(2); De La Paz, 279 S.W.3d at 342; see also Ex parte Miller, 330 S.W.3d 610, 620 (Tex. Crim. App. 2009) (noting that a complainant's extraneous offenses may be admissible under Rule 404(b) when offered for a non-character purpose, such as to show specific intent, motive, or hostility). Generally, evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Tex. R. Evid. 401.
In the context of proving intent for an offense, the relevance of an extraneous offense "is a function of its similarity to the offense charged." Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985) (quotation omitted). "[S]imilarity, and hence relevancy, is determined by the inquiry or issue to which the extrinsic offense is addressed." Id. (quoting United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)). When offered to prove intent, the similarity need not be as great as when the evidence is offered to prove modus operendi or identity. See Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987). Although the extraneous offense need not be exactly the same, it must be "substantially similar to be admissible." Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.—Austin 1996, pet. ref'd) (citing Robinson v. State. 701 S.W.2d 895, 898 (Tex. Crim. App. 1985)); see also Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) ("To be probative, the extraneous offense evidence admitted to rebut a defensive theory [of frame-up or lack of intent] must be similar to the charged offense.").
A trial court's ruling on whether an extraneous offense is admissible—that is, whether the evidence has relevance apart from character conformity—is reviewed for an abuse of discretion. See De La Paz, 279 S.W.3d at 343. We will uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id. at 343-44.
C. Analysis
For purposes of this case, we assume without deciding that evidence of the complainant's intent to steal the car would make a fact of consequence in determining the action more or less probable when the defendant asserts a third-party-property-defense claim and the complainant denies an intent to steal. The record contains no evidence or offer of proof demonstrating any similarity between the complainant's shoplifting charge and the purported theft of the roommate's car. Thus, the trial court did not act outside the zone of reasonable disagreement in determining that the pending shoplifting charge was not sufficiently similar to the purported theft of the roommate's car, so the shoplifting charge did not make it more probable that the complainant intended to steal the roommate's car. Cf. Cantrell, 731 S.W.2d at 90-91 (no error to admit evidence of an extraneous offense of aggravated robbery to prove intent when there were "sufficient common similar characteristics between the offenses"—namely, both offenses were aggravated robberies committed at private residences, at gunpoint, at the same time of the morning, and shortly after the victims had awaken or were getting ready for work); Smith v. State, 420 S.W.3d 207, 220-22 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (no error to admit evidence of a robbery "substantially similar" to the charged offense of capital murder to prove intent to commit a robbery when both incidents involved the same accomplice and the defendant approaching an unsuspecting person in a parking lot, and the incidents occurred seventeen days apart); Prince v. State, 192 S.W.3d 49, 54-55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (no error to admit evidence of two "sufficiently similar" extraneous offenses to prove intent to rob when the offenses were all committed with a blunt instrument or knife, the offenses were committed at convenience stores in the same county, the offenses were committed by the defendant alone, the defendant took no property from the store clerk, the defendant drove away quickly, and the defendant took only cash and not coins during two of the robberies); Johnson, 932 S.W.2d at 302-03 (no error to admit evidence of an extraneous aggravated assault to prove intent to kill for capital murder when both instances involved the defendant shooting at other individuals in a car with a deadly weapon in the early morning hours while accompanied by the same person, who was also shooting with a shotgun, and involved efforts to prevent the escape of the other individuals).
The State contends that the primary issue for the jurors to decide was not whether the complainant "actually intended to steal" the car, but rather, whether appellant "reasonably believed that [the complainant] had that intent." See Tex. Penal Code §§ 9.41, 9.43. But the Court of Criminal Appeals has acknowledged that the assertion of a similar justification defense that focuses on the reasonable belief of the defendant—self defense—may permit inquiry into the complainant's specific intent with evidence of extraneous offenses. See Ex parte Miller, 330 S.W.3d 610, 620 (Tex. Crim. App. 2009).
With nothing to indicate that the two alleged offenses were similar, the trial court did not abuse its discretion by concluding that the pending theft charge was irrelevant. Appellant's first issue is overruled.
III. PUNISHMENT JURY CHARGE
In his second issue, appellant contends that the trial court erred by not properly instructing the jury regarding evidence of gang membership admitted during the punishment phase of the trial. Appellant contends that he suffered egregious harm from the omission of both a Beasley instruction and an Article 37.07 reasonable doubt instruction in the written jury charge. We hold that appellant was not egregiously harmed by the omission of either instruction.
Beasley v. State, 902 S.W.2d 452 (Tex. Crim. App. 1995) (plurality op.).
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1).
A. Punishment Evidence
Most of the evidence during the punishment phase of the trial concerned appellant's membership in the Bloods gang. Sergeant Clinton Ponder of the Houston Police Department testified as an expert witness concerning gangs. He testified that the Bloods criminal street gang regularly associate in the commission of criminal activities, including burglaries, assaults, robberies, weapons offenses, drug offenses, and murders.
Ponder opined that appellant was "definitely" a Bloods gang member. Ponder testified about appellant's tattoos, pictures of which the trial court admitted into evidence. Appellant had a tattoo of dog paws with blood on them, and Ponder testified that this tattoo is common for Bloods gang members. Appellant had a tattoo of a bull's head with blood on it that resembled the Chicago Bulls logo, and Ponder testified that he had seen this tattoo on other Bloods gang members. Appellant had a tattoo of "SWAT," which stands for Southwest Alief, Texas. Ponder testified that a lot of gang members in the Alief area have had this tattoo. Finally, appellant had tattoos of a bomb and the Rockets logo, which Ponder also had seen on multiple Bloods gang members in the Alief area.
Ponder testified that SWAT was not a gang itself, but another officer testified that he believed SWAT was a criminal street gang. The other officer opined that appellant was a member of the "SWAT and Bloods."
The trial court admitted pictures of appellant standing with a group of people, most of whom are wearing red and making hand gestures, and some of whom are wearing shirts with "RIP" or "BIP" written on them. Ponder testified that the shirts signified that a Bloods gang member had passed away, and "BIP" stands for "Blood in peace." Ponder testified that many of the people in the pictures are making a "B" hand gesture, which means "Bloods." In the picture, appellant is giving the "B" hand gesture for Bloods. He is wearing red pants, and his shirt includes the picture of a person with a red bandanna over their shoulder. Another person is holding up a red bandanna. Ponder testified that red bandannas are associated with the Bloods gang.
A latent print examiner testified about appellant's prior conviction for unlawfully carrying a weapon. The trial court admitted a judgment of conviction for that offense.
Appellant's mother testified that appellant had never been in a gang. She testified that, to her and appellant, the color red meant "believers in God, the blood of Jesus," which was a church youth group to which appellant belonged. She testified that appellant was an outstanding gentleman, kindhearted, helpful towards others, and well-rounded. On cross-examination, she answered "yes" to several "have you heard" questions from the State—for example, that appellant had a pending charge for capital murder. B. Legal Principles Regarding Beasley and Article 37.07, Section 3(a)
The Code of Criminal Procedure provides that evidence may be admitted during the punishment phase of a trial concerning extraneous crimes or bad acts that are "shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible." Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). This requirement of proof beyond a reasonable doubt for extraneous offenses is "law applicable to the case" for purposes of Article 36.14, so a trial court has a sua sponte duty to instruct the jury in accordance with Article 37.07, Section 3(a), when there is some evidence of unadjudicated bad acts. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. art. 36.14 (requiring a trial court to deliver to the jury "a written charge distinctly setting forth the law applicable to the case").
In Beasley, the Court of Criminal Appeals addressed the admissibility of evidence of a defendant's gang membership during the punishment phase of the trial under a version of Article 37.07 that did not allow for the admission of evidence of unadjudicated bad acts (and which, therefore, did not contain the reasonable doubt requirement). See Beasley, 902 S.W.2d 456-57; Orellana v. State, 489 S.W.3d 537, 542 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). A plurality of the court reasoned that gang membership evidence was admissible because it was relevant to the defendant's character. See Beasley, 902 S.W.2d at 456. This court recited Beasley's requirements for such evidence to be admissible:
Both the prior and current versions of Article 37.07 allow for the admission of character evidence. Compare Tex. Code Crim. Proc. art. 37.07, § 3(a)(1), with Beasley, 902 S.W.2d at 456.
Beasley allows admission of evidence regarding a defendant's membership in a gang even if it does not link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the fact-finder is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine whether the defendant committed the bad acts or misconduct, and (4) asked only to consider the evidence for the reputation or character of the accused.Orellana, 489 S.W.3d at 542 (citing Beasley, 902 S.W.2d at 457).
This court noted that Beasley has not been overruled since the amendment of Article 37.07, see id. at 542 & n.1, so evidence of gang membership may be admitted for different purposes during the punishment phase, see id. at 543. "If the evidence tends to show a bad act by the defendant, the jury must be instructed that it cannot consider evidence of an alleged bad act unless it is satisfied beyond a reasonable doubt that the act is attributable to the defendant." Id. "If the evidence is offered as relevant to the defendant's character, however, the evidence must meet the first two prongs of Beasley in order to be admitted, and the jury must be given instructions consistent with the third and fourth prongs of Beasley." Id. C. No Egregious Harm from Lack of a Beasley Instruction
But see Goodman v. State, 8 S.W.3d 362, 365-66 (Tex. App.—Austin 1999, no pet.) (holding that the defendant was not entitled to an instruction under Beasley that the jury limit its consideration of gang membership to the question of the defendant's character).
The State concedes that appellant was entitled to a Beasley instruction in the written charge. For purposes of this appeal, we assume without deciding that appellant was entitled to a Beasley instruction in the written charge. But when, as here, a defendant does not object to the omission of a jury instruction that is "law applicable to the case," the conviction will be reversed only if the error caused egregious harm. See id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).
A defendant suffers egregious harm only if he has not had a fair and impartial trial. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Id. at 490; see also Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). We will review the record as a whole to determine if the defendant suffered actual rather than theoretical harm. See Taylor, 332 S.W.3d at 489-90; Orellana, 489 S.W.3d at 543-44. Accordingly, we will review the entire jury charge, the state of the evidence and contested issues, the arguments of counsel, and any other relevant information in the record. Taylor, 332 S.W.3d at 489; Orellana, 489 S.W.3d at 543-44.
At no point during the punishment phase did the trial court or the State ask the jury to determine whether appellant engaged in any specific misconduct related to his membership in a gang. Although most of the evidence during punishment concerned appellant's gang membership, the State spent a relatively short amount of time discussing it during the closing argument. The State told the jury to consider appellant's gang membership in relation to "who he is"—i.e., in relation to his character. And, the State focused on appellant's violent character more directly related to the particular circumstances of this crime, not tying it to gang membership.
Under these circumstances, appellant has not suffered egregious harm related to the lack of a Beasley instruction. See Moore v. State, 339 S.W.3d 365, 370-71 (Tex. App.—Amarillo 2011) (holding that the defendant did not suffer egregious harm from the lack of an instruction limiting the jury's consideration of gang membership evidence to matters of the defendant's reputation and character in part because the State's argument mentioned the gang only one time and instead focused on other punishment evidence), aff'd as modified, 371 S.W.3d 221 (Tex. Crim. App. 2012).
D. No Egregious Harm from Lack of a Reasonable Doubt Instruction
As noted above, Article 37.07, Section 3(a)'s requirement of proof beyond a reasonable doubt for extraneous offenses is "law applicable to the case" for purposes of Article 36.14, so a trial court has a sua sponte duty to give a reasonable doubt instruction concerning extraneous offenses during the punishment phase of a trial if there is some evidence of unadjudicated offenses. See Huizar, 12 S.W.3d at 484; see also Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (no error to omit reasonable doubt instruction when there was no evidence of unadjudicated offenses). Because appellant did not object to the omission of a reasonable doubt instruction, we will review the error under the standards for egregious harm discussed above. See Orellana, 489 S.W.3d at 543 (reviewing egregious harm from the lack of a reasonable doubt instruction in the context of the defendant's membership in the MS-13 gang); see also Ellison v. State, 97 S.W.3d 698, 701 (Tex. App.—Texarkana 2003, no pet.) (reviewing egregious harm from the lack of a reasonable doubt instruction in the context of the defendant's membership in the Aryan Brotherhood).
Here, the State did not link appellant to any specific crimes committed by other members of the gang, which minimalized any risk of the jury improperly considering the gang evidence. See Orellana, 489 S.W.3d at 544 n.2. Although evidence of appellant's gang membership was contradicted by his mother, Sergeant Ponder's testimony was clear, strong, direct, and unimpeached. Ponder described several of appellant's tattoos as being related to the Bloods gang, and Ponder identified appellant in a picture wearing the color of the Bloods gang while making a Bloods hand sign, surrounded by many other people wearing and doing the same. The state of the evidence weighs against a finding of egregious harm regarding gang membership. See id. at 544-45.
Furthermore, nothing in the closing arguments linked appellant to any specific extraneous bad acts committed by other members of the gang. The State pointed to the gang evidence for the jury to "consider who he is." And, the State focused on the violent nature of the offense itself. Because the State gave several reasons for assessing the maximum punishment, unrelated to any extraneous offenses, the arguments of counsel weigh against a finding of egregious harm. See id. at 545.
Appellant notes in his brief that the State introduced evidence of an unadjudicated capital murder solely through a "have you heard" question directed at appellant's mother:
Q. Have you heard that your son, Jordan Grant, has a pending charge for capital murder?Appellant notes that none of the underlying facts of the capital murder case were presented to the jury.
A. Yes, I have.
The State's question about the capital murder charge was appropriate to undermine the mother's credibility concerning her testimony about appellant's good character. See, e.g., Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). But the jury did not receive a limiting instruction telling it that it should consider this evidence only for purposes of evaluating the mother's credibility, which created the risk that the jury would consider the evidence as substantive evidence of appellant's commission of the extraneous offense. See Brown v. State, 477 S.W.2d 617, 619-20 (Tex. Crim. App. 1972) (noting the risk that "the jury will consider the content of the question as substantive evidence" of the extraneous offense, and "in light of the danger involved in asking such a question, it would be quite proper for the trial court, if requested, to give a limiting instruction to the jury to the effect that the questions are not to be considered as substantive evidence"); see also Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001) ("Once evidence is received without a limiting instruction, it becomes part of the general evidence and may be used for all purposes.").
Nonetheless, both trial counsel and the State told the jury that it should not consider whether appellant actually committed the crime of capital murder. In particular, the State argued,
In that capital murder case he is presumed innocent. He has the same rights in that case that he does here. He has not be adjudicated on it. No jury has been sworn in to consider those facts. That is not the point of putting that information in front of you as a jury in a punishment phase of this case.In light of the State's closing argument that the jury should presume appellant innocent of capital murder, that no jury was to consider the facts of the capital murder, and that no jury had adjudicated the capital murder, it is unlikely the jury found that appellant actually committed the murder.
Considering the totality of the record—the substantial evidence of the appellant's membership in the Bloods gang, the unimpeached evidence of appellant's conviction for unlawfully carrying a weapon, the brief reference to an unadjudicated extraneous offense, and the State's argument to focus on appellant's violent character and the nature of the assault rather than the unadjudicated offense—we conclude that the absence of a reasonable doubt instruction did not cause egregious harm. Cf. Martinez v. State, 313 S.W.3d 358, 367-70 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (no egregious harm from the lack of reasonable doubt instruction when the defendant received the maximum sentence of life in prison for aggravated robbery, the State presented substantial evidence of extraneous offenses and referred to those offenses during closing arguments, but the arguments also focused on the violent nature of the offense).
The trial was fair and impartial. Appellant's second issue is overruled.
IV. CONCLUSION
Having overruled both of appellant's issues, we affirm the trial court's judgment.
/s/ Ken Wise
Justice Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).