Abdnor v. State

845 S.W.2d 302, 1992 Tex. App. LEXIS 3254, 1992 WL 275616
CourtCourt of Appeals of Texas
DecidedOctober 9, 1992
Docket05-81-01289-CR
StatusPublished
Cited by4 cases

This text of 845 S.W.2d 302 (Abdnor v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abdnor v. State, 845 S.W.2d 302, 1992 Tex. App. LEXIS 3254, 1992 WL 275616 (Tex. Ct. App. 1992).

Opinions

OPINION ON REMAND

ENOCH, Chief Justice.

The issue in this case is not whether John Howard Abdnor killed Janis Ballew, but whether John Howard Abdnor was insane at the time of the offense. The jury rejected appellant’s insanity defense, convicted him of murder, and sentenced him to life in prison. This Court originally affirmed the trial court’s judgment. Abdnor v. State, 756 S.W.2d 815 (Tex.App.—Dallas 1988), rev’d, 808 S.W.2d 476 (Tex.Crim.App. 1991). This appeal comes to us on remand from the Court of Criminal Appeals for a harm analysis on a preserved jury charge error. Contrary to our opinion, the Court of Criminal Appeals held that the trial court abused its discretion in admitting the testimony of Lowell Bryan Parsons with regard to certain extraneous offenses without providing a limiting instruction. Abdnor v. State, 808 S.W.2d 476, 478 (Tex.Crim.App.1991).

On remand, appellant brings one point of error. He contends that the trial court’s failure to instruct the jury to consider these extraneous offenses only for the limited purpose of explaining Parsons’ prior inconsistent statement was harmful error. We conclude that the admission of the extraneous offenses without a limiting instruction was harmless, overrule Abdnor’s point of error, and affirm the trial court’s judgment.

A. STANDARD OF REVIEW-HARM ANALYSIS

Where an appellant timely preserves jury-charge error, reversal is required if the error is “calculated to injure the rights of the [appellant],” which means no more than that there must be some harm to the accused from the error. Tex. Code Crim.Proc.Ann. art. 36.19 (Vernon 1974); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (emphasis in original). “[S]ome harm” is defined as the presence of any harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) (emphasis in original). In determining whether the error was harmful and reversal is required, an evi-dentiary review must be conducted, as well as a review of any other part of the record as a whole that may illuminate the actual, not just theoretical, harm to accused. Almanza, 686 S.W.2d at 174. For this review, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Id. at 171. We are presented with an atypical issue. In explaining his original objection, defense counsel stated that these extraneous offenses were objectionable because they “would have a tendency to show that the Defendant is a criminal generally ... ”, the traditional objection to extraneous offenses. In fact, on review for harm by an appellate court, we ordinarily must determine whether the appellant might have been convicted, not for having actually committed the crime charged, but just for being a criminal. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Crim.App.1987). However, appellant’s [304]*304conviction was not based upon an affirmative finding of commission of the offense, but was based upon his failure to prove by a preponderance of the evidence that he was insane at the time of the offense. Under this circumstance, we review the entire record to see if appellant might not have been found sane at the time of the offense but for Parsons’ testimony that was unlimited by a jury instruction.

B. EXTRANEOUS OFFENSES

On direct examination by the State, Parsons1 testified that two days before the murder in 1980, appellant, who was highly intoxicated, telephoned Parsons and said that the victim, Janis Ballew, had had an abortion, that he was “mad as hell,” and that he and the victim had broken up. Parsons quoted appellant as saying, “That bitch really screwed up this time ... if she walked through that door right now, I’d blow her head off. I’d just blow her right up against the wall.” Parsons then stated that he told appellant not to think like that, that he could not get away with things like that, and that appellant laughed and said, “Yeah, well, I know some things you don’t.”

However, on September 12, 1981, shortly before trial, Parsons told the prosecutor that he had lied about this telephone conversation with appellant. The prosecutor brought the statement to appellant’s and the trial court’s attention. On cross-examination, appellant used the statement in an effort to impeach Parsons. Appellant also elicited testimony from Parsons establishing that he spent time in the psychiatric ward of Baylor Hospital and that he steadily used drugs, both prescription and illegal, during the time period about which he testified.

1. Testimony

In an attempt to rehabilitate Parsons on re-direct examination, the State took up the issue of Parsons’ inconsistent statement. The testimony was as follows:

Q. Mr. Parsons, with respect — I believe my last question was with respect to your telephone call to me on Saturday, the 12th, before the Monday that the trial was to begin.
I believe I asked you if you had a reason for, at that point in time, with the trial approaching the following Monday, to make those statements to me.
Do you recall that?
A. Yes.
Q. All right. You have testified earlier that when the Defendant was intoxicated, he got violent and got in people’s faces; is that correct?
A. Yes, sir; that’s right.
Q. Let me ask you if you have had occasion to be in the presence of the Defendant — Miss Ballew being killed on the 27th of July, which was a Sunday morning, and the telephone call being that Friday night before that, if within the week or two-week period prior to that, you had occasion to be in the presence of the Defendant?
[Defense Counsel]: Objection, Your Hon- or. The question calls for extraneous matters and is not limited solely to the purposes for which it’s being offered.
The Court: Well, as to that specific question, as to whether he was in the presence, I overrule the objection.
A. Yes, I was.
Q. Do you recall what day of the week that was, or what night it was?
A. It was a Saturday night, I believe.
Q. Was it the Saturday immediately preceding the killing of Miss Ballew, or was it the Saturday before that, or do you recall which Saturday it was?
A. It was not the preceding Saturday, but the week before.
Q. The Saturday before that?
A. Yes.
Q. Now, I’ll ask you if the events that occurred on that night, plus conversations

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Related

Abdnor v. State
871 S.W.2d 726 (Court of Criminal Appeals of Texas, 1994)
Saenz v. State
843 S.W.2d 24 (Court of Criminal Appeals of Texas, 1992)
Abdnor v. State
845 S.W.2d 302 (Court of Appeals of Texas, 1992)

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Bluebook (online)
845 S.W.2d 302, 1992 Tex. App. LEXIS 3254, 1992 WL 275616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdnor-v-state-texapp-1992.