Fischer v. State

235 S.W.3d 470, 2007 Tex. App. LEXIS 8378, 2007 WL 3085183

• Court: Court of Appeals of Texas
• Decided: October 24, 2007
• Docket: 04-05-00834-CR
• Status: Published

Opinions

OPINION

Opinion by

REBECCA SIMMONS, Justice.

This court’s opinion and judgment dated September 5, 2007 are withdrawn and this opinion and judgment are substituted. We substitute this opinion to clarify issues relating to this court’s review of the trial court’s ruling.

Appellant Robert Fischer was convicted by a jury of the murder of Edith Camp and sentenced to ninety-nine years imprisonment. Fischer presents three issues for review: (1) improper admission of extraneous offense evidence regarding the theft of a firearm; (2) factual insufficiency of the evidence; and (3) improper admission of hearsay evidence. Because we find the trial court erred in admitting the evidence regarding the theft of the firearm based on the proffer presented to the trial court, we reverse the trial court’s judgment and remand the cause to the trial court for a new trial.¹

Factual Background

On May 26, 2003, sixty-nine-year-old Edith Camp was in her home when she was killed by a gun shot to the back of her head. Cash and valuables were taken from the home. Ballistics tests showed a distinctive firing pattern consistent with that of a .22 caliber Cricket Keystone rifle. Neither the murder weapon nor items taken from the residence were recovered.

The State’s case was based entirely on circumstantial evidence. Several months before the murder, Mrs. Camp was apparently upset with Fischer, her nephew, and told a friend that she intended not to provide Fischer with any further financial support. A few days prior to the murder, Mrs. Camp stated that Fischer “gave her the creeps.” Two weeks after the murder, a .22 caliber Cricket rifle was discovered missing from the Boerne Wal-Mart where Fischer was a support manager. Ed Love, Jr., a firearms examiner with the Bexar County Crime Lab, subjected a Cricket rifle, with the serial number immediately following that of the stolen firearm, to ballistics tests. Love testified that the slug recovered from the scene of the murder was fired from a Cricket rifle identical or very nearly identical to the rifle taken from Wal-Mart. In an attempt to link Fischer to the murder, the State presented evidence suggesting that Fischer stole the .22 Cricket rifle from the Boerne Wal-Mart as part of his plan to murder Mrs. Camp.

Admission of Extraneous Offense Evidence

Fischer argues the trial court erred in admitting the evidence relating to the theft of the Cricket rifle from Wal-Mart. The State made an oral proffer to the trial court of the extraneous theft evidence it intended to introduce. Fischer objected to the admission of the extraneous offense on the grounds of relevance, that its probative value was outweighed by its unfair prejudice, and that the evidence was insufficient to support its admission as an extraneous offense. The trial court overruled Fischer’s objections, and testimony regarding the theft was admitted during the guilt-innocence phase of trial.

1. Standard of Review

“A trial court’s actions as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard.” Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App.1996). As long as the trial court’s ruling is within the “zone of reasonable disagreement” and is not arbitrary or unreasonable, there is no abuse of discretion and the trial court’s ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996).

2. Analysis

Extraneous offense evidence is admissible if the trial court determines: (1) the evidence is relevant to a material issue in the case; (2) the evidence is relevant apart from character conformity; and (3) the probative value of the evidence substantially outweighs the danger of unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex.Crim.App.1990). In this appeal, Fischer concedes that the evidence of the theft, if proven, is not purely character evidence but is relevant as to plan or motive and that the evidence is not overly prejudicial. Fischer argues that the trial court abused its discretion in admitting the evidence because, prior to the admission of the evidence, there was insufficient proof for the trial court to determine that a jury could reasonably find beyond a reasonable doubt that he committed the extraneous offense. The issue, in this case, focuses on the first prong of the initial determination of relevancy. In order to make this determination we must explore Rule 104(b). Tex.R. Evid. 104(b).

Texas Rule of Evidence 104(b) governs the admissibility of evidence that is not relevant unless other connecting facts are proven. Tex.R. Evid. 104(b). “[I]n deciding whether to admit extraneous offense evidence ... the trial court must, under Rule 104(b), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.” Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App.1994). Proof of a culpable connection between the accused and the extraneous offense is an essential precondition to establishing the relevance of the extraneous offense. Id. at 157.

Much like in Harrell, the conditional fact that the trial court was required to determine in this case, was whether a jury could reasonably find beyond a reasonable doubt that Fischer committed the theft of the firearm. Id. at 160. If a jury could determine that Fischer unlawfully appropriated the Cricket rifle with an intent to deprive the owner of the property, then the evidence was relevant and admissible.² Id.; see also Tex. Pen.Code Ann. § 31.03 (Vernon 2003). Otherwise, the evidence was irrelevant and therefore inadmissible under Rules 104(b) and 402. Tex.R. Evid. 104(b) & 402; Harrell, 884 S.W.2d at 160. As long as the trial court’s decision-that a jury could reasonably find beyond a reasonable doubt that Fischer committed the extraneous offense-was within the zone of reasonable disagreement, we must affirm the trial court’s decision.

In determining whether the trial court abused its discretion, we believe a legal sufficiency review is instructive.³ When reviewing legal sufficiency of the evidence to support a criminal conviction, this court examines whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). This standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999). Thus, under this standard of review, if we conclude that no rational trier of fact could have found the essential elements of the alleged theft based on the State’s proffer, then the trial court could have only concluded the same. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996) (stating that a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt when there is legally sufficient evidence). If the trial court determined otherwise, then we must conclude that the trial court’s decision was outside the zone of reasonable disagreement and thus, it abused its discretion.

During Fischer’s pretrial motion in limine, the trial court elected and the parties agreed, to address the admissibility of the extraneous offense evidence to be adduced during trial under Rule 404(b) by oral proffer.⁴ The proffer was made before opening statements and any presentation of evidence, and was only preceded by voir dire in which both the trial court and the prosecutor acknowledged that no statements regarding the facts of the case could be made.

The State’s proffer included the details of the investigation into the nature of the murder weapon. During its proffer, the State argued that the evidence would show:

(1) Fischer worked at a Wal-Mart where a weapon was stolen;

(2) a ballistic expert “can eliminate as an exact match any other firearm other than the one that was stolen from the Wal-Mart during the time that [Fischer] was working there with access to it;”

(3) Fischer was seen at the gun locker shortly before the murder;

(4) there were between nine to fourteen keys to the gun locker and only people in management had access to the gun locker;

(5) Fischer had a key to the gun locker;

(6) “the sporting goods manager will testify that she remembered seeing [the missing gun] two weeks before the last inventory, ..., four or five days before the murder;”

(7) Fischer mentioned that Wal-Mart was selling a small child’s rifle; and

(8) that Wal-Mart had never experienced a stolen weapon.

Based on the proffer, the only link between Fischer and the theft is that he was one of possibly fourteen managers with a key to the gun locker and that he “mentioned” that Wal-Mart was selling a small child’s rifle. Although the proffer may well have identified Fischer as one of several possible suspects in the theft of the gun, the proffer falls short of providing legally sufficient evidence to allow the trier of fact to reasonably find that Fischer committed the offense.

Harrell describes the procedure to be utilized by the trial court in the admission of extraneous offenses. At the time of the proffer, there was legally insufficient evidence that Fischer committed the extraneous offense. Therefore, the trial court could only conclude that a jury could not reasonably find beyond a reasonable doubt that Fischer committed the extraneous offense. Because the trial court reached a decision outside the zone of possibilities, we must conclude that the trial court abused its discretion.

3. Harm Analysis

Having determined that the trial court erred in admitting evidence of the extraneous offense, we must determine whether the record establishes that Fischer was harmed by its admission. The erroneous admission of an extraneous offense is not constitutional error. Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.San Antonio 2000, no pet.). We disregard a nonconstitutional error unless it affects a substantial right. Tex.R.App. P. 44.2(b).

An error affects a substantial right when the error has a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Russell v. State, 113 S.W.3d 530, 549 (Tex.App.-Fort Worth 2003, pet. refd). We must consider the trial court’s erroneous admission of the extraneous offense evidence in the context of the entire record and not just whether there was sufficient or overwhelming evidence of the defendant’s guilt. Motilla v. State, 78 S.W.3d 352, 357-58 (Tex.Crim.App.2002); Russell, 113 S.W.3d at 550. We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harrins v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); McQuarters v. State, 58 S.W.3d 250, 258 (Tex.App.-Fort Worth 2001, pet. refd). We do not focus upon the propriety of the outcome, but on the integrity of the process leading to the conviction, and determine if the error disrupted the jury’s evaluation of the evidence. Harris, 790 S.W.2d at 587-88; Russell, 113 S.W.3d at 550.

A review of the entire record in this case reveals that significant time was devoted at trial to developing the evidence surrounding the theft of the Cricket rifle from the Wal-Mart. According to the State’s expert, the stolen Cricket rifle and the murder weapon were likely one and the same. The theft of the Cricket rifle is the only evidence linking Fischer to the murder weapon. It was this evidence of the theft that allowed the jury to reasonably conclude that Fischer possessed the murder weapon. At oral argument, the State took the position that the evidence of the theft of the Cricket rifle was “mutually interconnected” with the murder charge. Moreover, the State acknowledged that excluding the evidence of the theft would make proving the murder charge difficult, if not impossible. Given the time spent during trial, the value of the evidence, and the State’s heavy emphasis at closing, it is likely that the jury placed great weight on the link between the stolen Cricket rifle and the murder in finding Fischer guilty.

In this case, the difficulty of the harm analysis arises from the admission of additional evidence beyond the proffer during trial. The State urges there is no harm because, even if the proffer was initially deficient, evidence submitted after the proffer, connecting Fischer to the missing rifle, was sufficient to allow the jury to find Fischer committed the theft beyond a reasonable doubt. The additional evidence connected the Cricket rifle to the murder victim, who was Fischer’s aunt, and additional testimony described a strained familial relationship between Fischer and the murder victim. Yet, if the court had correctly excluded the evidence described in the proffer, the jury would not have heard any of the evidence linking Fischer to the Cricket rifle reportedly stolen from Wal-Mart. The purpose of the procedure described in Harrell is to prevent the introduction of irrelevant extraneous offense evidence. Thus, if we agreed with the State’s argument that we may consider unrelated evidence submitted after the proffer to cure the deficiency of the proffer, then we defeat the purpose described in Harrell. Because we are bound to follow Harrell, we decline to accept the State’s argument. Having considered the record as a whole, we conclude that the erroneous admission of the extraneous offense evidence had a substantial and injurious effect or influence on the jury’s verdict thereby affecting Fischer’s substantial rights.

Conclusion

The trial court’s judgment is reversed, and the cause is remanded to the trial court for a new trial.

1 . We do not address Fischer's remaining issues because they are not necessary to the fmal disposition of this appeal. See Tex.R.App. P. 47.1.

2 . Texas Rules of Evidence 401, 403, and 404(b) would remain applicable, however, in this appeal these rules are not at issue.

3 . In general, we recognize that the Texas Court of Criminal Appeals has stated that a "no-evidence standard of review is not the proper test” in determining the admissibility of the evidence. Gigliobianco v. State, No. 1851-03, 2004 WL 3092759 *1 (Tex.Crim.App. May 19, 2004). Here, however, the trial court's decision on the admissibility of the evidence requires a determination that a jury could reach the prescribed quantum of proof, beyond a reasonable doubt. This quantum of proof is met by legally sufficient evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). Although the dissent criticizes the legal sufficiency review, it embarks on such an analysis merely concluding that the State’s proffer contains sufficient evidence by which a jury could find Fischer stole the Cricket rifle.

4 . See Arzaga v. State, 86 S.W.3d 767, 781 (Tex.App.-El Paso 2002, no pet.) (noting trial court can satisfy its responsibility to make initial determination that jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense by oral or written proffer).