Heigelmann v. State

362 S.W.3d 763, 2012 WL 688427, 2012 Tex. App. LEXIS 1670
CourtCourt of Appeals of Texas
DecidedMarch 2, 2012
DocketNo. 06-11-00039-CR
StatusPublished
Cited by15 cases

This text of 362 S.W.3d 763 (Heigelmann 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
Heigelmann v. State, 362 S.W.3d 763, 2012 WL 688427, 2012 Tex. App. LEXIS 1670 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion by

Justice MOSELEY.

Erik Heigelmann was tried before a jury for the first-degree felony of aggravated robbery of Heather Garner and received a sentence of twenty years’ imprisonment. During the trial, the State introduced evidence of four other robberies. In his appeal, Heigelmann raises two points of error, complaining first of the introduction into evidence of the extraneous offenses and second, complaining of error regarding a note given to the jury by the trial court in responding to a question pertaining to the application of the evidence of those extraneous offenses. We find that there was no error in the admission of the extraneous offenses, but that error occurred in the content of the note sent by the trial court to the jury.

1. Background

On November 6, 2009, Garner was working at Holiday Cleaners when she noticed a man acting suspiciously as he repeatedly drove a silver four-door Ford through the parking lot. The man came into the cleaners and asked if it was a barber shop, and Garner replied that it was not. Although the man left the building, Garner did not see him drive away,1 something that Garner believed was “weird.” Approximately five or ten minutes later, a man wearing a red toboggan cap, a gray shirt, and white socks with red lines on his hands entered the cleaners. The man covered his face with something, pointed a silver-black gun at Garner’s head, and demanded cash. Garner complied with the demand, handing over money from the cash register. The robber then fled, and Garner called 9-1-1 to report the robbery.2 At trial, Garner testified that although Heigelmann looked like the robber, she could not be 100 percent sure that he was the one who had robbed her that day due to the face covering the robber had employed.

The State maintained that defense counsel placed identity in issue in his opening statement of the trial by telling the panel, “We only want the right person brought to [767]*767justice and the right person punished.”3 Upon conclusion of opening statements, the trial court conducted a hearing outside the presence of the jury regarding the admission of the extraneous offense evidence. At the hearing, the State claimed that in five robberies occurring in October and November 2009, Heigelmann was positively identified as the assailant. The trial court summarized the offense reports:4

[Tjhere was a robbery October 1 at the Super 8 Motel, the suspect ran in ... and took the money. There’s no allegation that he had a gun, at least in the offense reports. On October 12 it’s alleged that the perpetrator ran in covered by a scarf, white socks, pointed a gun at the clerk covered by a scarf or white socks, ordered her to a room, faced the wall. On October 28 the clerk alleges that the person came up behind the victim, demanded the money, grabbed it from the drawer, suspect had on a blue bandanna around the face and head, socks over both hands, small caliber handgun in a sock in the left hand. November 4, the clerk alleges that a perpetrator wearing a full face Halloween skeleton mask with white socks over both hands, there wasn’t any reference to a gun. And November 6 is the present case. The allegation is defendant came in with a red bandanna and a pistol, and on November 8 at the Dollar General, there’s an allegation that a perpetrator came in a red bandanna with a towel wrapped around the face and socks on both hands.

The trial court concluded the October 12, October 28, November 4, and November 8 extraneous offenses were sufficiently similar to the November 6 offense to be admissible under Rule 404(b) to prove identity. Tex.R. Evid. 404(b).

When the jury was called in, the trial court read a limiting instruction indicating they would hear evidence that Heigelmann committed offenses other than the offense charged in the case before them. The trial court instructed the jury:

[Yjou’re about to hear evidence that the defendant committed offenses other than the offense charged in this case. You are instructed that this evidence is being admitted to prove, if it does, the identity of the defendant as the person who is alleged to have committed the offense charged in this case, and for no other reason. You are instructed that you may not consider this evidence unless you first find beyond a reasonable doubt that the defendant committed the extraneous offenses, and if you make that finding, then you may only consider the evidence for the purpose of establishing the identity of the defendant as the person who is alleged to have committed the offense charged in this case.

Basically the same instruction was repeated in the written jury charge.

The State called six witnesses to prove the extraneous offenses. After having been charged and during the course of its deliberation, the jury submitted a question to the trial court asking, “Whether or not I can use the evidence in the other cases to decide the innocence or guilt of this person in this case.” The trial court indicated that its proposed response was to be, ‘You may use the evidence from any of the other robbery cases that you find beyond a reasonable doubt were committed by the defendant to decide the innocence or guilt [768]*768of the defendant in this case.” Defense counsel objected to the proposed response:

It’s our position that we need a specific limiting instruction, that we need to instruct the jury that that information may only be used if it establishes the defendant’s identity. My concern is with the instruction the way it’s drafted has a tendency to make the — it could have a tendency to make the jury think, if we find that he did these other ones, we necessarily find that he did this one too.... [T]he purpose of the limiting instruction is so that that evidence is not used to establish the defendant’s character, but only to establish his identity....
[[Image here]]
I’m asking for a re-statement of the instruction as it was originally written.

The trial court overruled Heigelmann’s objection and submitted the response as quoted above. Heigelmann was thereafter convicted of the aggravated robbery5 of Garner as charged and sentenced to twenty years’ imprisonment.

II. Analysis

A. The Extraneous Offenses

The admission of extraneous offense evidence is reviewed under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). If the trial court properly admits the evidence in light of the factors enunciated in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990), and the court’s decision to admit the evidence is within the zone of reasonable disagreement, the trial court’s decision will be upheld. Moses, 105 S.W.3d at 627.

The question of evidentiary admissibility rests on the bedrock notion of relevancy. Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. “All relevant evidence is admissible, except as otherwise provided by ... these rules.... Evidence which is not relevant is inadmissible.” Tex.R. Evid.

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Cite This Page — Counsel Stack

Bluebook (online)
362 S.W.3d 763, 2012 WL 688427, 2012 Tex. App. LEXIS 1670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heigelmann-v-state-texapp-2012.