Ginger Sue Brown v. State

Court of Appeals of Texas

Ginger Sue Brown v. State

DecidedOctober 7, 2009

Docket07-08-00353-CR

StatusPublished

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Ginger Sue Brown v. State, (Tex. Ct. App. 2009).

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Opinion

NO. 07-08-0353-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 7, 2009

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

GINGER BROWN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

NO. 1152; HONORABLE STEVEN EMMERT, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Appellant, Ginger Sue Brown, was convicted of aggravated sexual assault of a child and subsequently sentenced to 10 years in the Institutional Division of the Texas Department of Criminal Justice. By two issues, appellant contends that the trial judge committed reversible error by 1) allowing hearsay testimony of a forensic interviewer to be admitted before the jury, and 2) refusing to admit the previously recorded statement of appellantâs co-defendant into evidence. We affirm.

Factual and Procedural Background

Â Â Â Â Â Â Â Â Â Â On March 5, 2006, Jimmy Brown, the husband and co-defendant of appellant, was arrested by Lipscomb County Deputy Jessica Kay for violating a protective order. While being transported to jail, Brown began relaying information to Kay of an alleged sexual assault of appellantâs son, Joey, that had occurred on or about March 2, 2002. After arriving at the Lipscomb County jail, Brown gave two written statements and a video taped statement to deputies. After receiving this information, the Lipscomb County Sheriffâs Office dispatched another deputy, Jason McCarthy, to pick up the appellant for questioning. Upon being brought to the jail, and after being advised of her right to remain silent, appellant gave two written statements and a video taped statement admitting her participation in the sexual assault. During her interviews, appellant stated that it was Jimmyâs idea for her to have sex with her son. She further stated that Jimmy was physically and emotionally abusive to her and the children. The statements did not, however, contend that on the night in question that Jimmy physically forced her to have sex with her son.

Â Â Â Â Â Â Â Â Â Â At trial, in addition to the deputies who took the statements in the case, the State produced the testimony of Shelly Bohannon, a forensic interviewer with the Bridge Childrenâs Advocacy Center in Amarillo. Bohannon was qualified as an expert forensic interviewer. She testified about her interviews of Joey. It was a portion of Bohannonâs testimony that gave rise to appellantâs first contention.

Â Â Â Â Â Â Â Â Â Â The State also presented the testimony of the co-defendant, Jimmy, to the jury. Jimmy had given a number of statements to the authorities that contained inconsistencies. During appellantâs presentation of the evidence, Jimmy was recalled to the witness stand and those inconsistencies were explored. At one point, appellant attempted to admit the video taped statement given by Jimmy. From the record, it appeared that the offer was made in an attempt to impeach Jimmyâs testimony. The trial court sustained the Stateâs objection to the introduction of the statement. The exclusion of the video taped statement is the basis of appellantâs second contention.

Â Â Â Â Â Â Â Â Â Â We disagree with appellantâs contentions and will affirm the judgment of the trial court. Both of appellantâs contentions deal with the trial courtâs evidentiary rulings.

Standard of Review

Â Â Â Â Â Â Â Â Â Â We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). Because trial courts are in the best position to decide questions of admissibility, appellate courts will uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because the appellate court disagrees with the decision. Id. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on rehâg).

Â

Hearsay Objection to Bohannonâs Testimony

Â Â Â Â Â Â Â Â Â Â Appellant lodged hearsay objections to much of Bohannonâs testimony. To properly consider these objections, we must first determine whether or not Bohannon was offered as an expert. An expert is someone whose âscientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, . . . .â See Tex. R. Evid. 702. The record reflects that the State spent a substantial amount of testimonial time going over the witnessâs education, training, and experience as a forensic interviewer. Additionally, Bohannon testified about the procedure for conducting a valid forensic interview, especially as it related to child victims of abuse. After a hearing outside the presence of the jury, the trial court accepted Bohannon as an expert witness on the subject of forensic interviews. Additionally, the State had filed a notice pursuant to the Texas Code of Criminal Procedure to allow Bohannonâs testimony to be received as an âoutcry witness.â See Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 2005). At the conclusion of the hearing, the record reflects that the trial court had ruled that Bohannonâs testimony could also be received as an âoutcry witness.â Appellantâs objections as to hearsay purport to find error with each ruling by the trial court.

Â Â Â Â Â Â Â Â Â Â The following is the portion of Bohannonâs testimony that appellant objects to on appeal. (All questions were by the State on direct examination.)

Q. Okay. So he said that his mom had not abused him, is that right?

A. Thatâs correct. Thatâs what he said.

Q. Okay. Did he talk about seeing the Defendantâs lingerie?

A. He talked about someâsome clothes that may have holes in them, but I donât know if he was talking about lingerie or day wear or really what that was.

Q.

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NO. 07-08-0353-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 7, 2009

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

GINGER BROWN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

NO. 1152; HONORABLE STEVEN EMMERT, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Appellant, Ginger Sue Brown, was convicted of aggravated sexual assault of a child and subsequently sentenced to 10 years in the Institutional Division of the Texas Department of Criminal Justice. By two issues, appellant contends that the trial judge committed reversible error by 1) allowing hearsay testimony of a forensic interviewer to be admitted before the jury, and 2) refusing to admit the previously recorded statement of appellantâs co-defendant into evidence. We affirm.

Factual and Procedural Background

Â Â Â Â Â Â Â Â Â Â On March 5, 2006, Jimmy Brown, the husband and co-defendant of appellant, was arrested by Lipscomb County Deputy Jessica Kay for violating a protective order. While being transported to jail, Brown began relaying information to Kay of an alleged sexual assault of appellantâs son, Joey, that had occurred on or about March 2, 2002. After arriving at the Lipscomb County jail, Brown gave two written statements and a video taped statement to deputies. After receiving this information, the Lipscomb County Sheriffâs Office dispatched another deputy, Jason McCarthy, to pick up the appellant for questioning. Upon being brought to the jail, and after being advised of her right to remain silent, appellant gave two written statements and a video taped statement admitting her participation in the sexual assault. During her interviews, appellant stated that it was Jimmyâs idea for her to have sex with her son. She further stated that Jimmy was physically and emotionally abusive to her and the children. The statements did not, however, contend that on the night in question that Jimmy physically forced her to have sex with her son.

Â Â Â Â Â Â Â Â Â Â At trial, in addition to the deputies who took the statements in the case, the State produced the testimony of Shelly Bohannon, a forensic interviewer with the Bridge Childrenâs Advocacy Center in Amarillo. Bohannon was qualified as an expert forensic interviewer. She testified about her interviews of Joey. It was a portion of Bohannonâs testimony that gave rise to appellantâs first contention.

Â Â Â Â Â Â Â Â Â Â The State also presented the testimony of the co-defendant, Jimmy, to the jury. Jimmy had given a number of statements to the authorities that contained inconsistencies. During appellantâs presentation of the evidence, Jimmy was recalled to the witness stand and those inconsistencies were explored. At one point, appellant attempted to admit the video taped statement given by Jimmy. From the record, it appeared that the offer was made in an attempt to impeach Jimmyâs testimony. The trial court sustained the Stateâs objection to the introduction of the statement. The exclusion of the video taped statement is the basis of appellantâs second contention.

Â Â Â Â Â Â Â Â Â Â We disagree with appellantâs contentions and will affirm the judgment of the trial court. Both of appellantâs contentions deal with the trial courtâs evidentiary rulings.

Standard of Review

Â Â Â Â Â Â Â Â Â Â We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). Because trial courts are in the best position to decide questions of admissibility, appellate courts will uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because the appellate court disagrees with the decision. Id. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on rehâg).

Â

Hearsay Objection to Bohannonâs Testimony

Â Â Â Â Â Â Â Â Â Â Appellant lodged hearsay objections to much of Bohannonâs testimony. To properly consider these objections, we must first determine whether or not Bohannon was offered as an expert. An expert is someone whose âscientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, . . . .â See Tex. R. Evid. 702. The record reflects that the State spent a substantial amount of testimonial time going over the witnessâs education, training, and experience as a forensic interviewer. Additionally, Bohannon testified about the procedure for conducting a valid forensic interview, especially as it related to child victims of abuse. After a hearing outside the presence of the jury, the trial court accepted Bohannon as an expert witness on the subject of forensic interviews. Additionally, the State had filed a notice pursuant to the Texas Code of Criminal Procedure to allow Bohannonâs testimony to be received as an âoutcry witness.â See Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 2005). At the conclusion of the hearing, the record reflects that the trial court had ruled that Bohannonâs testimony could also be received as an âoutcry witness.â Appellantâs objections as to hearsay purport to find error with each ruling by the trial court.

Â Â Â Â Â Â Â Â Â Â The following is the portion of Bohannonâs testimony that appellant objects to on appeal. (All questions were by the State on direct examination.)

Q. Okay. So he said that his mom had not abused him, is that right?

A. Thatâs correct. Thatâs what he said.

Q. Okay. Did he talk about seeing the Defendantâs lingerie?

A. He talked about someâsome clothes that may have holes in them, but I donât know if he was talking about lingerie or day wear or really what that was.

Q. Did he ever express to you concerns that his mother would walk around in provocative clothing?

A. No.

Q. Did he ever say he saw her in the clothing?

A. In provocative, no.

Q. Okay. Now did he discuss the role that the Co-Defendant Jimmy Brown played?

A. In which?

Q. In the sexual assault.

A. He - - he talked about Jimmy having his mother, Joeyâs mother go and get him out of his bed and bring him into her bedroom and place him in the bed with her and that he sat in a chair or recliner next to the bed and just watched.

Q. And he said he was just watching. Did he say what his mother was doing?

A. He - - he said he couldnât remember.

Q. Did he ever give you any details as to the sexual assault by the Defendant and the Co-Defendant against him?

A. No, he never did.

Q. Is it - - but he never specifically said about his motherâs private parts or anything happening to him by his mother; is that correct?

A. No he denied that.

Q. Okay. Ms. Bohannon, based on your training and experience and the number of forensic interviews that you have had with children, is it common or uncommon for children not to disclose to you whatâs been happening?

A. We see that pretty frequently.

Q. Okay. Is it common or uncommon for children to only partially disclose?

A. We see that quite a bit too, yes.

Â Â Â Â Â Â Â Â Â Â Initially, we observe that whether or not Bohannon was an âoutcry witnessâ may be determined by whether or not the statements made by Joey were sufficient to describe the alleged sexual assault. See Tex. Crim. Proc. Code Ann. art. 38.072 Â§ 2. A review of the objected to testimony would lead to the conclusion that it did not describe the assault, in fact, Joey said he could not remember or it did not happen. See Garcia v. State, 792 S.W.2d 88, 90-91 (Tex.Crim.App. 1990) (stating that the statement to an outcry witness must describe the alleged offense in some discernable manner as opposed to a general allusion that something in the area or child abuse was going on). Here the child did not give any testimony that could be viewed to sustain the requirement of the statute.

Â Â Â Â Â Â Â Â Â Â However, this is not the end of our inquiry. The State posits that the objected to evidence was not offered for the truth of the matters asserted, rather they were offered to establish the underlying facts or data to support the expertâs opinion about the reluctance of the victim to testify. In this regard it appears that the jury could use this information to evaluate Bohannonâs testimony that child victims commonly are reluctant to disclose the facts of the assault and, in fact, may deny or only partially disclose any information about the event. See Rule 705(a); Austin v. State, 222 S.W.3d 801, 812 (Tex.App.âHouston [14^th Dist.] 2007, pet. refâd). Accordingly, the evidence was admissible for that purpose.

Â Â Â Â Â Â Â Â Â Â Appellant, however, contends that, even if it was admissible for that purpose, there was a danger that the jury would use the information for other purposes than the evaluation of the expertâs opinion. See Rule 705(d). Our review of the record does not support appellantâs contention. This evidence was given to explain the victimâs reluctance to discuss the events at issue. Further, appellantâs statements admitting the sexual assault were admitted prior to Bohannonâs testimony. Therefore, there could be little danger of the jury using the underlying interview to convict appellant of the offense for which she had already confessed in written and video taped statements. Finally, the record further reflects that the victim later testified before the jury and testified to some of the events of the assault but again stated that he could not remember some of the events. Based on the record before us, we cannot say the trial court abused its discretion in admitting the testimony of Bohannon. See Cameron, 241 S.W.3d at 19. Accordingly, appellantâs first issue is overruled.

Previously Recorded Statement of Jimmy Brown

Â Â Â Â Â Â Â Â Â Â Appellant next contends that the trial court committed reversible error in refusing to admit the previously recorded statement of Jimmy Brown into evidence. According to appellant, the statement was admissible under the provisions of Rule 803(24) as an admission against interest. See Rule 803(24). However, at trial appellant offered the statement as a prior inconsistent statement. See Rule 801(e)(1)(A). As such, appellantâs complaint on appeal does not comport with his objection at trial. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (an offer of evidence under one theory does not preserve an appeal that the evidence was admissible under a different theory). Accordingly, nothing has been preserved for appeal. See Tex. R. App. P. 33.1(a)(1)(A). Therefore, appellantâs second issue is overruled.

Conclusion

Â Â Â Â Â Â Â Â Â Â Having overruled appellantâs issues, we affirm the judgment of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Do not publish.

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NO. 07-09-00391-CR

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 15, 2010

ANTHONY C. PARSON, APPELLANT

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-423,019; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Anthony C. Parson, was convicted of attempted[1] burglary of a habitation with intent to commit murder or aggravated assault.[2]Â The indictment included punishment enhancment allegations of two prior felony convictions.[3]Â At the punishment hearing, appellant pleaded true to the enhancement allegations in the indictment and the jury assessed appellantÂs punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 50 years.Â Appellant subsequently filed this appeal contending that the evidence was legally insufficient to support the conviction and that the trial court had committed reversible error in allowing the State to introduce evidence of an extraneous offense.Â We will affirm the conviction.

Appellant and Kathleen McCullough, the victim, had previously had a dating relationship.Â Appellant and McCullough had broken up before the events of October 10, 2008.Â Earlier in the day on October 10, before the events that resulted in appellantÂs conviction, McCullough was doing her laundry at a laundromat when appellant came in and began yelling at McCullough.Â According to McCulloughÂs testimony, appellant continued walking toward her and threatening her.Â McCullough stated she was backing away from appellant when he grabbed her keys.Â He then left the laundromat in the truck she had borrowed from her brother.Â McCullough called a relative who came to the laundromat and took her back to her apartment.Â Upon arriving at her apartment, McCullough found the front door unlocked.Â While McCullough was trying to determine if it was safe to go into her apartment, appellant drove up in the truck.Â Appellant again began shouting at McCullough and was threatening her.Â After a short time, appellant left the apartment complex.Â McCullough eventually went inside her apartment.

A few hours later (the record is not clear as to exactly how much time passed) appellant again returned to the apartment complex.Â Appellant went to McCulloughÂs apartment door and tried to gain entry.Â Upon finding the door locked he began to beat and kick on the door and shout threats at McCullough.Â McCullough became afraid for her safety and called 911.Â While talking to the 911 operator, McCullough heard a window break, and she retreated to the closet.Â At some point, McCullough heard more windows being broken and specifically heard appellant say, ÂBitch, IÂm going to kill you.ÂÂ

The police arrived in response to the 911 call and found appellant outside the apartment.Â Appellant was detained and placed in the back of Officer Travis DensonÂs police car.Â When appellant was placed in the rear seat of the police car, Denson activated the video recording device and placed the camera so as to record appellant.Â A copy of the video was played for the jury.Â In the video, appellant continued to curse and threaten McCullough.Â Upon going back to the door of the apartment, Denson observed that the couch had been pulled in front of the door and, upon entry, observed the broken windows.Â

Denson then made the decision to arrest appellant and transport him to the City of Lubbock holding facility.Â During transportation to the city holding facility, appellant continued to threaten to kill McCullough.Â Upon arrival at the city facility, appellant got into a fight with two other inmates.Â This fight was the subject matter of the extraneous offense of assault that the trial court allowed into evidence before the jury.Â AppellantÂs trial counsel objected to the introduction of the extraneous offense.Â However, the trial court overruled the objection and allowed the testimony before the jury.

The jury subsequently convicted appellant as charged in the indictment and sentenced him to serve 50 years in the ID-TDCJ.Â Appellant appeals contending that the evidence is legally insufficient to prove that appellant had the requisite intent at the time of the attempted entry into the apartment.Â Additionally, appellant contends that the trial court abused its discretion in allowing evidence of the extraneous offense to come before the jury.Â We will affirm the judgment of the trial court.Â

Legal Sufficiency of the Evidence

AppellantÂs first issue contends that the evidence was legally insufficient to sustain the judgment.Â Specifically, appellant challenges the legal sufficiency of the evidence to prove the requisite intent of appellant at the time of the attempted burglary.

Â Â Â Â Â Â Â Â Â Â Â A legal sufficiency review consists of reviewing the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Â Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004).Â However, the jury is the sole judge of the weight and credibility of the evidence.Â Â Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991)).Â We resolve inconsistencies in the evidence in favor of the verdict.Â Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).Â Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor.Â Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).Â Furthermore, the standard of review is the same for both direct and circumstantial evidence.Â Id.

Analysis

Â Â Â Â Â Â Â Â Â Â Â In order to convict for the offense of attempted burglary of a habitation with intent to commit murder or aggravated assault, the State must prove that appellant attempted to enter McCulloughÂs habitation without her effective consent with the intent to commit the offense of murder or aggravated assault.Â There is no argument from appellant regarding the elements of attempt, consent, or habitation.Â Appellant specifically argues that there is legally insufficient evidence of his intent to commit murder or aggravated assault.Â Accordingly, our analysis will be confined to that area of the evidence.

Â Â Â Â Â Â Â Â Â Â Â When considering the question of intent to commit the act charged, we must first realize that a personÂs intent is within his own mind.Â See Norwood v. State, 135 Tex.Crim. 406, 120 S.W.2d 806, 809 (1938).Â Next, in an effort to ascertain intent, we may look to the outward expression of that intent through the words, acts, and conduct of the individual in question.Â Id.Â Finally, it is from all of these circumstances that we determine his intent.Â See Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App. 1998) (citing Gray v. State, 55 Tex.Crim. 90, 114 S.W.635, 645-46 (1908)).Â

Â Â Â Â Â Â Â Â Â Â Â When these considerations are applied to the facts of this case, we find that the record reveals: 1) appellant accosted McCullough on two occasions on the day in question; 2) each time appellant approached McCullough, he did so in a threatening manner stating it was his intent to harm or kill her; 3) appellant was detained outside of McCulloughÂs apartment while shouting threats; 4) the windows had been broken out of McCulloughÂs apartment, and entry had been attempted by kicking the door in; 5) McCullough recognized appellant as the one attempting to get in the apartment; 6) after appellantÂs arrest, he continued to make threats to kill McCullough.Â In short, from the observation of appellantÂs conduct and speech, a rational jury could have concluded beyond a reasonable doubt that appellant intended to kill or seriously injure McCullough.Â See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.Â Therefore, the evidence was legally sufficient.Â See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.Â AppellantÂs first issue is overruled.

Extraneous Offense

Â Â Â Â Â Â Â Â Â Â Â AppellantÂs last issue deals with the trial courtÂs admission of extraneous offense testimony.Â The trial court permitted the StateÂs attorney to ask Denson if appellant had assaulted two other inmates upon arrival at the City of Lubbock holding facility. Â Appellant contends that the admission of the evidence was an abuse of discretion because such testimony was not relevant, and even if relevant, its probative value was clearly outweighed by its prejudicial impact.Â

Â Â Â Â Â Â Â Â Â Â Â We review a trial courtÂs decision to admit or exclude evidence under an abuse of discretion standard.Â See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2009).Â A trial court abuses its discretion when the decision to admit the evidence in question lies outside the zone of reasonable disagreement.Â Id.Â

Law of Extraneous Offenses

Â Â Â Â Â Â Â Â Â Â Â As a legal maxim, extraneous offenses are not admissible during a criminal trial, especially to prove the character of a defendant and that the defendant acted in conformity with that character trait at the time in question.Â See Tex. R. Evid. 404(b).[4]Â There are exceptions to this general prohibition.Â Specifically, extraneous offense evidence is admissible if it tends to prove or disprove an element of the offense.Â See De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009).Â This is the inquiry into the relevance of the evidence.Â See Rule 404(b); De La Paz, 279 S.W.3d at 343.Â The proponent for admissibility of the extraneous offense evidence must carry the burden of establishing the admissibility of such evidence.Â See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1991) (op. on rehÂg).Â Once the relevance is established, the evidence may still be excluded if its probative value is substantially outweighed by its unfair prejudicial effect.Â Rule 403; Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997).Â

Â Â Â Â Â Â Â Â Â Â Â If a rule 403 objection is made, the trial judge must then conduct a balancing test to ascertain whether or not the probative value is substantially outweighed by the prejudicial impact of the proffered extraneous offense.Â Id.Â In conducting this balancing test the trial court considers the following: 1) how compellingly the extraneous offense evidence serves to make the fact of consequence more or less probable; 2) the potential for this evidence to impress the jury in some irrational but indelible way; 3) the time required to develop the evidence; and 4) the force of the proponentÂs need for the evidence. Id.Â

Â Â Â Â Â Â Â Â Â Â Â Our first inquiry is whether or not the proffered extraneous evidence is relevant.Â Rule 404(b); De La Paz, 279 S.W.3d at 343.Â A review of the record reflects that the State had a substantial amount of evidence that bore upon the intent of appellant to murder or assault McCullough at the time he attempted the unauthorized entry into the apartment.Â Further, the quality of the evidence in demonstrating the intent of appellant was much more direct and persuasive than evidence of assaults involving strangers at some time removed from the events that led to appellantÂs arrest.Â A further review of the closing arguments reveals that even the proponent of the evidence must have thought that it was not particularly important, for it is barely even mentioned during those arguments.Â What was the relevance of this evidence, especially in light of the entire record?Â Our review yields the conclusion that this extraneous offense evidence was only minimally relevant.Â For purposes of this opinion, we will treat the evidence as relevant, as it did have some propensity to prove the element of intent.Â See De La Paz, 279 S.W.3d at 343.

Â Â Â Â Â Â Â Â Â Â Â Therefore, we now turn to the balancing test pursuant to rule 403.Â Santellan, 939 S.W.2d at 169.Â Our first inquiry into the strength of the evidence results in a determination that the evidence in question, a subsequent assault of other inmates at a time after the offense being considered, is only minimally compelling.Â See id.Â In addition, we find the force of the StateÂs need for this evidence to be barely above negligible.Â See id.Â The presentation of the evidence required only a minimal amount of time, and, to that extent, did not detract the jury from the real issues at hand.Â See id.Â However, when you review the entire record, the most that can be said for this extraneous offense evidence is that it proved appellantÂs propensity to be aggressive and perpetrate assaults.Â Thus, it did have the potential for impressing the jury in an irrational but indelible way.Â See id.Â As such, this evidence should not have been placed before the jury and to do so was error.Â Rule 403.Â

However, our finding that the admission of the evidence was error does not end the inquiry.Â Rather, we must continue the inquiry to determine whether the admission had an effect on appellantÂs substantial rights by a Rule 44.2(b) harm analysis for non-constitutional errors.Â See Tex. R. App. P. 44.2(b);[5] Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005).Â A substantial right is implicated when the error had a substantial and injurious effect on the juryÂs verdict.Â Haley, 173 S.W.3d at 518.Â In order to ascertain the effect the error may have had on the juryÂs verdict, we are directed to consider everything in the record, including all of the evidence received by the jury and how the alleged error might be considered in connection with other evidence supporting the verdict.Â See id.

When we apply the analysis required to the facts of this case, we find that we have a significant amount of evidence that went to the issue of appellantÂs intent.Â Further, the proponent of the evidence in question mentioned the objected-to evidence only minimally during closing arguments.Â A complete review of the evidence leads us to the conclusion that the error in admitting the evidence of the assaults at the city holding facility did not affect appellantÂs substantial rights.Â See Rule 44.2(b).Â Therefore, the error was harmless.Â See Haley, 173 S.W.3d at 518.Â Accordingly, appellantÂs final issue is overruled.

Having overruled appellantÂs issues, we affirm the judgment of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Do not publish.Â

[1] See Tex. Penal Code Ann. Â§ 15.01(a) (Vernon 2003).

[2] See id. Â§ 30.02(a)(1) (Vernon 2003).

[3] See id. Â§ 12.42(d) (Vernon. Supp. 2010), Â§ 30.02(d) (Vernon 2003).

[4] Further reference to the Texas Rules of Evidence will be by reference to ÂRule __Â or Ârule ___.Â

[5] Rule of Appellate Procedure 44.2 provides:

(a)Â Constitutional Error.Â If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b)Â Other Errors.Â Any other error, defect, irregularity, or variance that does not affect the substantial rights must be disregarded.

Cite This Page — Counsel Stack

Bluebook (online)

Ginger Sue Brown v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ginger-sue-brown-v-state-texapp-2009.

Opinion

Q. Okay. So he said that his mom had not abused him, is that right?

A. Thatâs correct. Thatâs what he said.

Q. Okay. Did he talk about seeing the Defendantâs lingerie?

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Cite This Page — Counsel Stack

A. Thatâs correct. Thatâs what he said.

Q. Okay. Did he talk about seeing the Defendantâs lingerie?