Opinion
No. 08-15-00366-CR
08-23-2017
BRANDON LEE JENKINS, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from 75th District Court of Liberty County, Texas (TC # CR31761) OPINION
Appellant was convicted of murder and sentenced to ninety-nine years in prison. He appeals that conviction, challenging the manner of jury selection and the admission of evidence. For the reasons explained below, we affirm.
FACTUAL SUMMARY
Early on the morning of February 11, 2015, Kadijas Holmes left her home for work. Appellant, who was something of her on-again, off-again boyfriend, was with her in the car. She had intended for him to drop her off at work and then drive the car back to the house. Instead, the two got into a heated argument, which caused Kadijas to drop Appellant off at the house.
The home was also occupied by several of Kadijas' immediate family members, including her father, Tracy Odell Holmes. A neighbor had heard the earlier argument between Appellant and Kadijas, and around 6:00 a.m., the neighbor heard Appellant and Holmes arguing. The argument was followed by the sound of gunfire. The neighbor peered out her window and saw Holmes lying by the roadside in front of his house. He had been shot in the head, the heart, and arm, and likely died instantly. The police later found nine shell casings in the street and the magazine for a pistol.
Another neighbor who had heard the shots saw a figure running through the fog to a nearby residence, owned by Paul Stelly. The neighbor then saw a car leave the Stelly residence and drive by the body. Someone got out of the car briefly, and then drove back to the Stelly house. When the responding officers learned of this, they went to the Stelly residence. There, they found Appellant hiding in a shed in the back. They also found the gun hidden in a pile of laundry in the house. Tawana Stelly testified at trial that Appellant had come into the house that morning and exclaimed that he had killed Holmes. He then ran through the laundry room and out the back door.
Appellant admitted to the shooting. He claimed, however, that Holmes struck him in the back of the head with something following an argument. Appellant then turned to run and discharged the handgun in Holmes's direction in self-defense. The jury rejected that defense and instead found Appellant guilty of felony murder, and sentenced him to ninety-nine years. On appeal, Appeal raises three issues. First, he contends the State improperly considered race in making its peremptory strikes. Second, he claims the State improperly interjected into evidence his invocation of the right to remain silent. Finally, he argues that the State improperly admitted prior bad acts testimony in derogation of TEX.R.EVID. 404(b). We take each issue in turn.
BATSON CHALLENGE
In his first issue, Appellant contends that the State's use of jury strikes was racially motivated which denied his right to equal protection under the United States Constitution.
Applicable Law
For more than a century, the United States Supreme Court has "consistently and repeatedly . . . reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause." Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 2351, 120 L.Ed.2d 33 (1992). Stating the principle, however, was easier than applying it because peremptory strikes are traditionally "without a reason stated, without inquiry and without being subject to the court's control." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965). In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court arrived at its current test for evaluating whether a prosecutor excludes a venire member based on race. At the outset, Appellant must make a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes. Id. at 96, 106 S.Ct. at 1723; Williams v. State, 301 S.W.3d 675, 688 (Tex.Crim.App. 2009). The burden then shifts to the State to articulate race-neutral explanations for its strikes. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Williams, 301 S.W.3d at 688. The prosecutor must give a clear and reasonably specific explanation of the legitimate reasons for exercising the challenge. Batson, 476 U.S. at 98, n.20, 106 S.Ct. at 1724.
The Texas Legislature codified Batson in Article 35.261 of the Texas Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. art. 35.261 (West 2006).
If the prosecutor succeeds in doing so, the burden shifts back to the defendant to demonstrate that the explanation is really a pretext for discrimination. Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002). "Whether the opponent satisfies his burden of persuasion to show that the proponent's facially race-neutral explanation for his strike is pre-textual, not genuine, is a question of fact for the trial court . . . ." Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App. 2008). Part of that assessment includes the credibility of a prosecutor. In that regard, the trial court may consider (1) the prosecutor's demeanor, (2) how reasonable or how improbable the explanations are, and (3) whether the proffered rationale has some basis in accepted trial strategy. See Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Additional factors that the United States Supreme Court has looked to include: (1) whether the State struck a higher percentage of the defendant's racial group than other racial groups; (2) whether the State's reasons for striking members of one racial group applied equally to other racial groups whom the State did not strike; (3) whether the State used jury shuffles in a manner that supported an inference of racial discrimination; (4) whether the State questioned one racial group differently and in a way designed to obtain answers justifying strikes of that group; and (5) whether the county in which the defendant was prosecuted had a formal policy of excluding minority jurors from service. See Miller-El v. Dretke, 545 U.S. 231, 240-64, 125 S.Ct. 2317, 2325-39, 162 L.Ed.2d 196 (2005).
While a Batson challenge involves shifting burdens, the complaining party always carries the ultimate burden of persuasion that a peremptory strike was based on race. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723-24; Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). Thus the failure to offer any real rebuttal of the State prosecutor's race neutral rationale can be fatal to the objecting party's claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002).
Because the trial court's ruling turns in part on a credibility evaluation, we give the trial court's decision great deference. Watkins, 245 S.W.3d at 448; Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App. 1999). We review the evidence in the light most favorable to the trial judge's ruling and will uphold that ruling unless it is clearly erroneous. Nieto v. State, 365 S.W.3d 673, 676 (Tex.Crim.App. 2012). In determining whether clear error occurred, we look to the entire record of the voir dire, not merely the passages highlighted by the parties. Watkins, 245 S.W.3d at 448.
Application
The trial court sat 58 prospective jurors. The State asked for a shuffle, but our record provides no information on how the shuffle affected the racial make-up of the panel. Four venirepersons were struck for cause. Each side was given eleven peremptory strikes. Two alternate jurors were selected. The last venireperson who sat on the jury occupied seat 25. Venirepersons 29 and 32 were seated as alternates, but never participated in the deliberations. Appellant is African-American, as was the victim. There were no African-Americans selected for the jury.
Our record does not contain the actual strike sheets made by each side, nor the juror questionnaires, or even a master list of the jurors in numerical order. The prospective jurors identified as having been struck by the State is gleaned entirely from the dialog between counsel and the court at the Batson hearing.
After the jury was seated, Appellant's counsel claimed that the State in derogation of Batson struck all the African-Americans within the strike zone. The State did not argue that Appellant failed to make a prima facie showing, and instead the State's two prosecutors informed the trial court of their rationale for striking each of the four prospective jurors at issue. Any challenge to the first Batson step is therefore moot. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002); Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App. 1993)(when the prosecutor did not object to the trial judge's failure to rule on the defendant's prima facie case, that issue became moot and could not be raised on appeal). We thus turn to the rationale urged by the State for striking each of those prospective jurors.
Venireperson Number 5
The State struck Venireperson 5 for three reasons. First, the prospective juror went to school with Appellant and knew some of his family members. He had also heard about the case through talk around town, but claimed he could set that aside. He affirmed that he was not leaning one way or the other, but would base his decision on what he heard at trial. Second, the State's prosecutor claimed that this venireperson gave conflicting answers on his appreciation of the burden of proof. At one point in the voir dire, he described the State's burden "as close to [100%] as I can be." At another point he said: "The definition of reasonable doubt to me is without doubt. So, if they can't give me without a doubt then -- that's what I want." The State unsuccessfully moved to strike for cause based on these answers. The third reason was that the venireperson was employed as a social worker, and affirmatively stated he believes in rehabilitation.
Appellant argues that Venireperson Five's claim that he was not leaning one way or the other is sufficient proof that the prosecutor's stated rationale was pretextual. Appellant also contends that the State failed to show how being a social worker made him less than fair, and that the State spent an inordinate amount of time questioning this venireperson. We disagree. The trial court's acceptance of one or more of these rationales was not clearly erroneous. A juror's appreciation of the burden of proof is essential to any case and a strike grounded in that rationale is a valid race neutral reason. See Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App. 1993)(strike based in part on venireperson holding State to higher burden than beyond a reasonable doubt did not warrant reversal); Tolbert v. State, 08-10-00096-CR, 2011 WL 3807740, at *4 (Tex.App.--El Paso Aug. 26, 2011, pet ref'd)(not designated for publication) (State justified in striking juror who required 100% certainty); Williams v. State, 939 S.W.2d 703, 707 (Tex.App.--Eastland 1997, no pet.)(holding that prosecutor established race-neutral reason for strike when juror had difficulty understanding "beyond a reasonable doubt" standard). That a venireperson states one of several conflicting understandings of the burden of proof raises a legitimate concern about that person's jury service.
Additionally, a juror's prior knowledge of the parties or witnesses is an important consideration. See Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App. 1988), holding modified by Whitsey v. State, 796 S.W.2d 707 (Tex.Crim.App. 1989)(venireperson who knew defendant's mother was validly struck); Clemons v. State, 893 S.W.2d 212, 218 (Tex.App.--El Paso 1995, no pet.)(venireperson's acquaintance with defendant's family was a valid race neutral reason for strike); Lewis v. State, 779 S.W.2d 449, 454 (Tex.App.--Tyler 1989, pet ref'd)(same). Appellant has failed to sustain his burden to show that the stated rationale was pretextual. For instance, there is no showing that any other venireperson who knew Appellant's family was treated any differently. The only other juror who expressed knowledge with Appellant's family members, Venireperson 21, was also struck. The other jurors who equated "beyond a reasonable doubt" with a near 100% certainty were not selected either. And while this venireperson answered more questions that many of the other panelists, he did so because he responded to more of the general questions asked of the panel as a whole.
The State's third rationale was that Venireperson 5 was a social worker who believed in rehabilitation. When the State indicates that it challenges a prospective juror based on the nature of employment and that the State has had poor success with that type of worker in the past, the reason can be a race neutral explanation for exercising the peremptory challenge. Moore v. State, 265 S.W.3d 73, 84 (Tex.App.--Houston [1st Dist.] 2008, writ dism'd improvidently granted); Middleton v. State, 187 S.W.3d 134, 142 (Tex.App.--Texarkana 2006, no pet.), citing Tompkins v. State, 774 S.W.2d 195, 205 (Tex.Crim.App.1987). The State failed to elaborate on any specific negative history with social workers. And another venireperson who believed in rehabilitation was accepted for jury service. Nonetheless, because the other two rationales offered by the State were sufficiently compelling, there is ample evidence in the record to support the trial court's determination that Appellant has not overcome the race neutral explanation of the State's prosecutors.
The prosecutor's rationale was that "the state views [social workers] as very lax, being a liberal on crime and also on punishment."
Venireperson Number 20
Venireperson 20 answered no substantive questions during voir dire. The prosecutor claimed he struck her because she had served on a jury for a case that he previously tried, and that she was one of three jurors who voted not guilty on one of the charges. The trial judge was also familiar with the case, and the resulting partially hung verdict. Defense counsel offered no rebuttal to the fact that this prospective juror was on that prior jury, that she voted to acquit, or that the State's attorney might have had a legitimate concern given his perception of the merits of that prior case. On appeal, Appellant focuses on the lack of questioning of the venireperson about the prior case, and an absence of any information in the record about the case. But prosecutors may base their strike decisions on matters outside the record as long as they are explained to the trial judge. See Clemons v. State, 893 S.W.2d 212, 218 (Tex.App.--El Paso 1995, no pet.)(prosecutor's knowledge of venireperson's connection to litigation not of record sufficient). That the trial judge was also familiar with the case, its outcome, and this venireperson's prior jury service gives substantial verification of the prosecutor's race neutral rationale.
Venireperson 21
Venireperson 21 knew several of the listed witnesses. He also knew several members of Appellant's family, including his mother and sister. Even with these connections, he explained that he was not leaning one way or the other and could be fair. The prosecutors struck him based on their belief that he knew more than he was saying. The prosecutors also were aware that this prospective juror had been on deferred probation for a second degree felony of aggravated assault with a deadly weapon, a charge analogous to the case about to be tried. The trial court appeared to agree that this latter factor justified the peremptory strike and we conclude this implied finding was not clearly erroneous. The use of peremptory strikes on prospective jurors who have been convicted or charged with a criminal offense is a legitimate and racially neutral reason for exercising a peremptory strike. Dorsey v. State, 940 S.W.2d 169, 176 (Tex.App.--Dallas 1996, pet ref'd); Thornton v. State, 925 S.W.2d 7, 11 (Tex.App.--Tyler 1994, pet. ref'd)(prospective juror related to people with criminal records); Sibley v. State, No. 08-07-00174-CR, 2009 WL 2461273, at *3 (Tex.App.--El Paso Aug. 12, 2009, no pet.)(not designated for publication)(family member of venireperson who were prosecuted for drug offenses). Additionally, this venireperson's connection to Appellant's family would constitute a race neutral rationale. Clemons, 893 S.W.2d at 218; Lewis, 779 S.W.2d at 454. Appellant fails to offer any rationale for how these reasons were mere pretexts.
Venirepersons 30 and 31
Venirepersons 30 and 31 were both prison guards. The prosecutor struck both based on his practice of never allowing a prison guard to be seated on a jury. He reasoned that prison guards work with accused persons every day. Venireperson 31 in fact had direct interactions with Appellant at the jail. Appellant withdrew his challenge to Venireperson Thirty when it was pointed out he had also struck the same prospective juror.
The trial court did not err in crediting the State's rationale. A similar race neutral justification was offered in Moore v. State, 265 S.W.3d 73, 85 (Tex.App.--Houston [1st Dist.] 2008, pet dism'd as improvidently granted) where the prosecutor struck a prison guard. We could envision that a prison guard who was associated with a guilty verdict might expose him or herself to retribution from a convicted defendant awaiting transport to the penitentiary, or those sympathetic to that defendant. At best it would create and uncomfortable situation for the jail staff.
We reject Appellant's argument for an additional reason. The only juror selected because of this strike was one of the alternate jurors. The alternates never participated in the deliberations. Had the State not struck Venireperson 31, at most Number 31 might have been an alternate because the last actual juror selected was in position 25. Appellant failed to show that the State would have used a strike on any of the jurors actually seated, which is the only way that Venireperson 31 would have ever been seated. Thus any error was harmless.
Nor do we find any other indicators that the State used race as a factor in any of its strikes. The State used five of its eleven strikes against African-Americans, but without knowing the overall racial make-up of the panel, that number alone does not prove a racial motive. Our review of the entire voir dire record reveals no disparate treatment by the State between African-American venirepersons and non-African-American venirepersons. The prosecutor's inquiries of the panel as a whole were not discriminatory, nor were different questions posed to African-American members of the panel than those asked of non-African-American members. There is nothing in the record identifying any other non-African-American venireperson who could have been challenged by the State, but was not, on the basis of the State's proffered reasons for challenging Venirepersons 5, 20, 21, and 31.
The record lacks any evidence that the State utilized the jury shuffle in a manner that supports an inference of racial discrimination, or that Liberty County has a policy to exclude minorities or a history of purposefully excluding minorities from jury service. Under the circumstances, Appellant has failed to carry his burden to show racial discrimination or that the trial court's decision to deny his Batson challenge was clearly erroneous. See Camacho v. State, 864 S.W.2d 524, 529 (Tex.Crim.App. 1993)("The appellant, having heard the apparently race-neutral explanation of the prosecutor[,] had nothing additional to present in impeachment of or rebuttal to that explanation."); Williams v. State, 804 S.W.2d 95, 107 (Tex.Crim.App. 1991)("Appellant only makes general allegations as to disparate treatment. This is insufficient to sustain his burden of persuasion."). We overrule Issue One.
INVOCATION OF FIFTH AMENDMENT RIGHTS
In his second issue, Appellant complains that the State interjected his invocation of the Fifth Amendment privilege against self-incrimination as a part of its case in chief. When the defendant takes the stand, he may be cross-examined on his silence as would any other witness, so long as that silence is limited to that before he received a Miranda warning. Cisneros v. State, 692 S.W.2d 78, 85 (Tex.Crim.App. 1985). After the Miranda warning is given, a comment on a defendant's post-arrest silence violates the Fifth Amendment prohibition against self-incrimination. Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App. 1995), citing Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 2244-2245, 49 L.Ed.2d 91 (1976). "A comment on a defendant's post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right." Id. at 356.
Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 1624 n.37, 16 L.Ed.2d 694 (1966).
The issue arises in this context. When Appellant was pulled from the shed behind the Shelly residence, he was read his Miranda rights and handcuffed. At that time, he voluntarily agreed to tell the officers the whereabouts of the gun he had hidden in Shelly's house. The State needed this testimony to tie Appellant to the gun and we find nothing improper about the series of questions and answers directed to a Liberty County investigator:
[PROSECUTOR] Did you attempt to talk to Mr. Jenkins?Appellant raises no complaint about this exchange. Instead, he challenges two questions on re-direct:
[WITNESS] Yes.
Q: Did he want to talk to you?
A: Yes. His Miranda was read, and he agreed to talk.
Q: How long did he talk?
A: Not very long.
Q: Did he stop talking to you?
A: He stopped talking.
Q: Did he give you any kind of information that you followed up on?
A: Yes.
Q: What did you do to follow up on the information that he gave you?
A: Talked to the landowner of the property to recover a possible firearm.
[PROSECUTOR]: When Mr. Jenkins got back to the sheriff's department, he invoked his Miranda protections at the scene; is that correct? [sic]Appellant did not object to either of these exchanges. The only time he did object occurred when he took the stand in his own defense. After he testified to shooting Holmes in self-defense, his counsel objected to cross examination:
[WITNESS]: That is correct.
Q: Did you ever attempt to question him again?
A: No.
[PROSECUTOR]: Now, the police wanted to talk to you, right?The trial judge then immediately instructed the jury not to draw any improper inference:
[APPELLANT]: Yes, sir.
Q: And it's perfectly right for you not to talk to the police. You don't have to, do you?
A: Correct.
Q: At that time you didn't want to talk to them and tell them your side of the story. You waited until today?
[DEFENSE COUNSEL]: Your Honor, objection. This is a direct comment on his constitutional right to remain silent under Miranda.
THE COURT: Ladies and gentlemen of the jury, please disregard the comment. No inference shall arise whatsoever when one exercises their constitutional right. At that time Mr. Jenkins had a constitutional right under Miranda versus Arizona to not say anything. He exercised that right. No inference at all with respect to one way or the other shall arise from that. Wipe it from your mind and from your memory.Assuming the State's questions here to be error, we still must determine if that error was preserved for review. Error falls into one of three categories. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997). A litigant's rights can be classified either as: (1) "absolute requirements and prohibitions;" (2) "rights of litigants which must be implemented by the system unless expressly waived;" or (3) "rights of litigants which are to be implemented upon request." Id. at 279. The latter category--forfeitable rights--require the litigant to make his complaint known to the trial court in such a way as to "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). Otherwise, the error is forfeited. See TEX.R.APP.P. 33.1. We are required to consider error preservation even if the parties do not. Bekendam v. State, 441 S.W.3d 295, 299 (Tex.Crim.App. 2014); Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App. 2009).
[DEFENSE COUNSEL]: Thank you, Your Honor.
Another arresting officer testified without any objection:
Q. While you were -- while you had him in custody, did you do something that's called Miranda?
A. I did.
. . .
Q. Did Mr. Jenkins wish to talk to you?
A. He did not.
A party must preserve error, even many constitutional errors, with a proper objection. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). The right to avoid self-incrimination is generally considered a forfeitable right, that is, one that is to be implemented upon request. Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex.Crim.App. 2012). It is analogous to other procedural and evidentiary issues that require compliance with the procedural rules or an objection at trial. See Anderson v. State, 301 S.W.3d 276, 280 (Tex.Crim.App. 2009) (compliance required with procedural rules for continuance); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004)(confrontation clause rights); Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App. 1998)(requirement to timely assert statute of limitations defense); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)(necessity of objection for improper jury argument).
The failure to object to the only question complained of on appeal forfeits the issue. See Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App. 2004)(lack of objection to comments and questions regarding invoking silence under Texas Constitution forfeited issue); Larios v. State, No. 13-15-00022-CR, 2015 WL 9487107, at *4 (Tex.App.--Corpus Christi Dec. 29, 2015)(memo op., not designated for publication)(failure to object to prosecutors' comment about failure to talk to police waived complaint). And even if this single question drew an objection, the absence of any objection to the other similar questions would be fatal. See Crocker v. State, 573 S.W.2d 190, 201 (Tex.Crim.App.1978)(noting that "[i]t is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged"); Adams v. State, No. 09-12-00104-CR, 2014 WL 989260, at *10 (Tex.App.--Beaumont Mar. 12, 2014, pet. dism'd untimely filed) (mem.op., not designated for publication)("Because similar evidence showing that Adams was a car thief was admitted without objection, we conclude the trial court did not abuse its discretion in admitting the portions of Adams's fourth statement at issue in his appeal."); Suiters v. State, No. 08-11-00048-CR, 2012 WL 4393053, at *6 (Tex.App.--El Paso Sept. 26, 2012, pet ref'd)(not designated for publication)("A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling.").
We would overrule Issue Two for a second reason. For constitutional error, we must reverse unless we conclude beyond a reasonable doubt that the error did not contribute to Appellant's conviction or punishment. TEX.R.APP.P. 44.2(a); Snowden v. State, 353 S.W.3d 815, 818, 822 (Tex.Crim.App. 2011). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt. McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App. 2001). Our focus is on the error itself in the context of the trial as a whole, to determine the likelihood that the error "genuinely corrupted the fact-finding process." Snowden, 353 S.W.3d at 819; see also Clay v. State, 240 S.W.3d 895, 904 (Tex.Crim.App. 2007)(entire record must be considered in harmless error analysis).
Therefore, our analysis should not focus on the propriety of the trial's outcome; instead, we should calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000). Although not an exclusive list, we consider the nature of the error, the extent to which it was emphasized by the State, its probable collateral implications, and the weight a juror would probably place on the error. See Snowden, 353 S.W.3d at 821-22.
Under this rubric, any error here is harmless. We set out above all the instances where the State mentioned Appellant's invocation of his Fifth Amendment rights. Each exchange involves a single question where the actual invocation of the privilege is referenced. The State did not mention any of this testimony in its closing. In voir dire, the State's attorney did inform the panel that every defendant enjoys a right to remain silent which cannot be used against him as any indication of guilt. The trial judge similarly instructed the jury in the one instance where Appellant objected at trial.
Because Appellant admitted to firing the weapon that killed Holmes, the central issue for the jury was the claim of self-defense. The State's theory, as framed by its closing argument, included the factual and legal implausibility of the story. Appellant could only use deadly force in response to the use of deadly force being used against him. While Appellant claimed that Holmes struck him with something on the back of the head, no actual weapon was found near the body. The gun was fired nine times, which the State argued was not a reasonable response to the claimed provocation. The prosecutor also focused on the direction and pattern of the shell casings, arguing they were inconsistent with Appellant's description of the encounter. Before the jury, Appellant admitted to a number of prior convictions for dealing drugs, being a felon in possession of a firearm, and testifying untruthfully in a prior legal proceeding. The State also focused on a technical deficiency in the self-defense theory. As stated in the jury charge, self-defense is not available when a person is carrying a handgun in violation of Section 46.02 of the Texas Penal Code (defined in the charge as intentionally, knowingly, or recklessly carrying on or about his or her person a handgun, if the person is not on the person's own premises or premises under the person's control). Appellant admitted to being a felon in possession of a handgun, and the physical evidence placed him in the street as he was firing the gun. )
In the context of these arguments, we conclude beyond a reasonable doubt that Appellant's single complaint about one question did not contribute to the conviction. Consequently, we overrule Issue Two.
RULE 404(b) OTHER BAD ACTS EVIDENCE
In his third issue, Appellant complains that the State admitted testimony from Kajima about a prior incident when he threatened her with the same gun used to kill Holmes. Appellant objected to the following question:
[PROSECUTOR]: Kadijas, I have placed State's Exhibit Number 9A. Have you seen that gun before?The trial court immediately gave this instruction:
[WITNESS]: Yes, sir.
Q: Has Brandon Jenkins ever threatened you with that gun before?
A: Yes, sir.
THE COURT: Ladies and gentlemen of the jury, you are instructed that before you can consider evidence that you have just heard about prior threats with this gun you must first find and believe beyond a reasonable doubt that that particular act was committed and it was committed by the defendant and you may only consider it to the extent that it bears upon and happens to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident as it relates to the crime that this defendant is on trial for. Proceed.Appellant objected that this testimony violated TEX.R.EVID. 404(b) and that he was not given notice of the State's intent to offer this evidence. The notice argument is not carried forward on appeal. Instead, Appellant now argues the question was subject to exclusion under TEX.R.EVID. 404(b) and also claims it should have been excluded under Rule 403, which was never argued below.
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). The trial court's ruling will be overturned only if is so clearly wrong as to lie outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003).
Relevance and Evidence of Prior Bad Acts
In deciding whether a particular piece of evidence is relevant, a trial court judge should ask "would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit." Montgomery, 810 S.W.2d at 376, quoting United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir.1976). If the trial court believes that a reasonable juror would conclude that the evidence alters the probabilities of contested events to any degree, the evidence is relevant. Id. Relevant evidence is generally admissible, while that which is not, is not. TEX.R.EVID. 402.
In criminal cases, Rule 404(b)(1) commands that evidence of other crimes or bad acts is not admissible to show character conformity. TEX.R.EVID. 404(b)(1). But that type of evidence might be admissible for some other non-character-conformity purpose, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. The other purposes set out in Rule 404(b)(1) are not exclusive; for instance, an extraneous offense may be used to rebut a defensive theory, such as self-defense. Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App. 1988); Halliburton v. State, 528 S.W.2d 216, 219 (Tex.Crim.App. 1975)(op. on reh'g); Albrecht v. State, 486 S.W.2d 97, 101 (Tex.Crim.App. 1972).
Analysis
We overrule Appellant's third issue for two reasons. First, the evidence was admissible to rebut the self-defense theory that Appellant had urged as early as his opening statement. The fact that Appellant shot and killed Holmes was uncontested. The issue before the jury was the nature of the argument between Appellant and Holmes, who was the aggressor, and whether Appellant's resort to gunfire was reasonable. A number of courts have upheld that in a self-defense case, the State may admit a defendant's other violent encounters as evidence to show which combatant was the aggressor. Halliburton, 528 S.W.2d at 218; Lolmaugh v. State, 514 S.W.2d 758, 759 (Tex.Crim.App. 1974); Gonzales v. State, No. 11-14-00046-CR, 2016 WL 787343, at *4 (Tex.App.--Eastland Feb. 29, 2016, no pet.)(mem. op., not designated for publication); Robinson v. State, 844 S.W.2d 925, 929 (Tex.App.--Houston [1st Dist.] 1992, no pet.); Yarbough v. State, 753 S.W.2d 489, 490-91 (Tex.App.--Beaumont 1988, no pet.). This is the converse of the rule that allows a defendant the same ability to show extraneous acts of violence by the deceased to support a claim of self-defense. Torres v. State, 71 S.W.3d 758, 761 (Tex.Crim.App. 2002). Appellant's prior threatening use of a gun might have informed the jury who was the true aggressor that February morning.
The evidence was admitted during the State's case in chief, but Appellant had already raised the self-defense claim in his opening statement which was made immediately after the State's opening. See Bass v. State, 270 S.W.3d 557, 563 n.7 (Tex.Crim.App. 2008)("When, as here, the defense chooses to make its opening statement immediately after the State's opening statement, the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive evidence during its case-in-chief as opposed to waiting until rebuttal."); Powell v. State, 63 S.W.3d 435, 439 (Tex.Crim.App. 2001)(same).
Additionally, even if the admission of this "other act" was error, it was harmless. Ordinarily, error in the admission or exclusion of evidence is not of constitutional dimension. Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.--El Paso 2002, no pet.). We generally disregard non-constitutional error unless a "substantial right" of the appellant is affected. TEX.R.APP.P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We should not reverse a criminal conviction because of non-constitutional error if we have fair assurance that the error did not influence the jury, or had but a slight effect. See Morales, 32 S.W.3d at 867; Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).
In making this determination, we consider the entire record, including the jury instructions, the parties' theories of the case, and closing arguments. Arzaga, 86 S.W.3d at 776. We consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error. See Motilla v. State, 78 S.W.3d 352, 356-58 (Tex.Crim.App. 2002).
While Appellant objected to the one question and answer we set out above, the same type of testimony came in through other witnesses without any objection. The State called Chris Ungles, an investigator who interviewed Kadijas the day of the murder. He testified to the substance of that interview without any objection; his testimony contains the very same reference to Appellant threatening Kadijas with a gun:
[PROSECUTOR]: Did she ever say she was threatened by Mr. Jenkins with that gun?The investigator also testified, again without objection, that Kadijas felt "extremely" threatened by Appellant, that he has anger issues, that he is a violent person, that she feared him, and that he had threatened other people with the gun.
[WITNESS]: She did.
Q: Did she express a fear for her twin boys and Mr. Jenkins?
A: An overall safety, yes, sir.
Q: Did she express a fear because at this time she did not know where Mr. Jenkins was?
A: Yes, sir.
Q: Did she express a fear that Mr. Jenkins could be coming for her?
A: Yes, sir.
When Kadijas herself testified, she described how that morning Appellant raised his hands up in a boxing stance as if to hit her. When Appellant was dropped off at the house, he went inside and retrieved his belongings and the gun. The decedent's wife, Michelle Haley, was in the house at the time and confronted Appellant. She testified, without objection, that Appellant threatened Kadijas:
[PROSECUTOR]: What did he say?
[WITNESS]: He told me, 'Is that what she said?' I say, 'Yes. She wouldn't be crying and upset and say something just to say it." He say, 'Well, I didn't say that; but me and my gun are going to go find her so she want to say that.'
. . .
Q. When Brandon told you that he has got his gun and he's going to go find your daughter, did you call her?
A. Yes, sir. He walked past me after he said it. I told him, 'Is that a threat?' He say, 'Yes.' I say, 'Don't go do nothing to her you will be sorry for.' He say, 'I don't have nothing to lose. I don't have custody of my daughter or my boys,' and that terrified me for my daughter's safety.Defense counsel elicited similar testimony from Haley:
[DEFENSE COUNSEL]: Did you ever see Brandon exhibit a gun to shoot people?And Appellant himself offered similar testimony:
[WITNESS]: I heard of it, but I didn't see it.
[DEFENSE COUNSEL]: Okay. Just tell the jury what kind of trouble you have been in.The jury heard that Appellant pled guilty to the charge of hitting his girlfriend in the face and burning her with an iron. He also pled guilty to making a terroristic threat against the owner of a gun range by threatening to shoot him. The first harm factor -- how the evidence in issues compares with other evidence -- weighs heavily against harm. The jury heard the same and more egregious testimony about threats that Appellant made to Kadijas and others. Appellant fares no better under the other factors. As we recount under the second issue, the State presented a strong case for guilt. Moreover, the State never referenced Appellant's threatening use of a gun in its closing argument. At most, the prosecutor made a general reference that Appellant was "quick-tempered." We conclude that error, if any, was harmless.
[APPELLANT]: When I was like 21 I think or 22, I got in a fight with my girlfriend. Well, we had a little fight and I went to jail for family assault violence and I was --
. . .
Q. When you say you had a fight, there are different definitions for a fight. What's a fight, Brandon?
A: A physical altercation.
Finally, we note that while Appellant's brief directs us to a TEX.R.EVID. 403 analysis, that objection was never lodged below. The Texas Court of Criminal Appeals in Montgomery clearly articulates that a Rule 404(b) objection and a Rule 403 objection are distinct complaints. 810 S.W.2d at 389. Only a Rule 404(b) objection was raised here, and we view any Rule 403 argument as forfeited. But for the reasons we note as to the Rule 404(b) objection, Appellant would be hard pressed to ever make a viable claim that the single question of which he complains was harmful in light of the unobjected to testimony of similar, if not more provocative actions. For these reasons, we overrule Issue Three and affirm the conviction. August 23, 2017
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating (Do Not Publish)