COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-464-CR
JOSH CHARLES WORSHAM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT
OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A
jury convicted Josh Charles Worsham of murder and sentenced him to fifteen
years’ imprisonment. In one point on appeal, appellant challenges the
admission of extraneous evidence offered to show the previous relationship
existing between appellant and the deceased. We affirm.
Appellant
killed his childhood friend Clint Chalmers by stabbing him in the heart during a
heated argument. Appellant claimed that the two were fighting because
appellant refused to give Chalmers a ride. Earlier, Jonathan Derrick had
gone to appellant’s home to ask for a ride. Appellant had agreed, but
told Derrick to return after dinner. He had also told Derrick that he
would not give anyone else a ride. When Derrick returned, Chalmers was
with him and Chalmers insisted that appellant give him a ride, too.
Appellant refused, the two began fighting, and appellant killed Chalmers.
The
State claimed that appellant killed Chalmers because Chalmers shortchanged
appellant during their drug dealings. In a hearing outside the jury’s
presence, the State argued that it needed to show evidence of drug dealing as
part of the relationship between appellant and Chalmers in order to show
appellant’s motive for the murder and to rebut appellant’s self-defense
claim. Appellant’s counsel objected, arguing that the evidence
concerning drug activity was inadmissible character conformity evidence.
The trial court overruled the objection, found the evidence relevant to motive,
and stated that it would allow evidence concerning drug activity if the State
could show that appellant and Chalmers pooled money to buy drugs, there was some
type of selling activity, and appellant got shortchanged. Appellant’s
counsel then objected that such evidence would be more prejudicial than
probative. After hearing appellant’s testimony concerning drug activity,
the trial court overruled the objection and again stated that the State could
elicit testimony concerning appellant and Chalmers’s pooling their money and
purchasing drugs. The trial court also determined that the probative value
of the evidence was not outweighed by its prejudicial effect.
The
trial court then allowed the State to cross-examine appellant in front of the
jury about his and Chalmers’s prior drug-dealing relationship. Appellant
testified that he had been chauffeuring Chalmers for the past four years, since
they were sixteen. Appellant, Chalmers, and others pooled their money to
purchase cocaine, and appellant believed that he did not get back a fair amount
of the cocaine to sell.
Appellant
argues on appeal that the trial court erred in admitting the following excerpt
from appellant’s testimony concerning drug activity because it is not relevant
to appellant and Chalmers’s relationship and because it is more prejudicial
than probative:
Q: And
about how much would you purchase at a time?
A. About
an ounce of cocaine.
Q:
An ounce. Now, is cocaine when you turn
around and sell it to someone, is that sold in ounces or in grams?
A: Grams.
Q:
And how many hits can you get off of one
gram, let’s say rock cocaine, crack cocaine?
A: How
many hits?
Q: How
many hits in one gram of crack?
A: Depends
on how many lines you divide up, however many you want.
Q: And
would that be more than five?
A: Depends
on the way you break it up.
Q: Could
be more than five?
A: Could
be.
Q: Up
to ten?
A: Yes.
Q: So
that was one gram would be five to ten hits?
A: Depending
on how you break it up, yes.
Q: And
when we say “hits,” it could be five to ten different people getting one
hit, correct?
A: I’m
not sure what you —
Q: If
you’ve got the crack in a pot and you —
A: I’m
not talking about crack. I’m talking about cocaine.
Q: Well,
I’m talking about rock cocaine which is also known as crack cocaine.
A: Oh,
we never — we never got that. We just got coke. We just got powdered coke,
which was kind of in a rock form, but it wasn’t crack. It was just solid
cocaine.
Q: Was
it a powder like sugar?
A: Yes.
It was like a dry sugar is what it was. It wasn’t cracked up yet.
Q: It
was in a block, correct?
A: Yes.
Q: But
it wasn’t a powder, it was a solid block?
A: Some
of it was powder, and some of it was clumped together.
Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of the
defendant and that he acted in conformity with that character. Tex. R. Evid. 404(b). Article
38.36 of the code of criminal procedure provides, however, that in all
prosecutions for murder the State may offer evidence of the defendant’s
previous relationship with the victim, together with all facts and circumstances
going to show the condition of the mind of the accused at the time of the
killing. Tex. Code Crim. Proc. Ann.
art. 38.36(a) (Vernon Supp. 2004).
Evidence
admissible under article 38.36 may be excluded under rules of evidence 404(b)
and 403. Tex. R. Evid.
404(b), 403; Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).
If the defendant makes a timely 404(b) or 403 objection, before the trial court
can properly admit the evidence under article 38.36, it must first find that the
non-character conformity purpose for which it is proffered is relevant to a
material issue. Smith, 5 S.W.3d at 679. If the proffered
evidence is relevant to a material issue, the trial court must then determine
whether the evidence should nevertheless be excluded because its probative value
is substantially outweighed by its inflammatory effect or the danger of unfair
prejudice. Id.; see also Saxer v. State, 115 S.W.3d 765, 774 (Tex.
App.—Beaumont 2003, pet. filed); Gipson v. State, 82 S.W.3d 715, 722
(Tex. App.—Waco 2002, no pet.).
Appellate
courts measure the trial court’s rulings concerning the admissibility of
evidence of other crimes, wrongs, or acts under an abuse of discretion standard.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). As
long as the trial court’s ruling was at least within the zone of reasonable
disagreement, the appellate court will not interfere with the ruling. Id.
at 391.
Rule
401 defines “relevant evidence” as “evidence having 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. Rule
404(b) provides that “[e]vidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Tex. R. Evid. 404(b).
The
above-quoted testimony supported the State’s theory that appellant was
motivated to kill Chalmers because he thought Chalmers was cheating him out of
drug money. The testimony demonstrated that appellant was more than just a
chauffer. Instead, it showed that appellant was an active participant in
the drug purchases. He knew the quantity of drugs Chalmers purchased and
how the drugs potentially were divided for resale. We thus agree with the
trial court that appellant’s testimony concerning drug activity was relevant
as proof of his motive to murder Chalmers. As such, it was admissible
under rule 404(b) because it was being used for purposes other than mere
character conformity.
If
a trial court determines that evidence of other crimes or extraneous misconduct
has relevance aside from character conformity, and a timely, proper rule 403
objection is made, the trial court must make a balancing determination under
rule 403. Montgomery, 810 S.W.2d at 388-89. Rule 403 provides
that "[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence." Tex. R. Evid. 403. Only
"unfair" prejudice provides the basis for exclusion of relevant
evidence. Montgomery, 810 S.W.2d at 389. Unfair prejudice arises
from evidence that has an undue tendency to suggest that a decision be made on
an improper basis, commonly an emotional one. Id. Rule 403
favors admissibility, and a presumption exists that relevant evidence will be
more probative than prejudicial. Id.; DeLeon v. State, 77
S.W.3d 300, 315 (Tex. App.—Austin 2001, pet. ref’d).
The
trial court's balancing determination must be measured against the relevant
criteria by which a rule 403 decision is made. Tex. R. Evid. 403; Mozon v. State,
991 S.W.2d 841, 847 (Tex. Crim. App. 1999). The relevant criteria in
determining whether the prejudice of an extraneous offense substantially
outweighs its probative value include the following: (1) how compellingly the
extraneous offense evidence serves to make a fact of consequence more or less
probable—a factor which is related to the strength of the evidence presented
by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury "in
some irrational but nevertheless indelible way"; (3) the time the proponent
will need to develop the evidence, during which the jury will be distracted from
consideration of the indicted offense; and (4) the force of the proponent's need
for this evidence to prove a fact of consequence, that is, does the proponent
have other probative evidence available to him to help establish this fact, and
is this fact related to an issue in dispute. Id. (citing Montgomery,
810 S.W.2d at 389-90).
Appellant
was the only witness who testified concerning drug activity, and, as we have
previously observed, the only witness who provided the objected-to testimony
concerning the kinds, amounts, and sales of drugs. Testimony concerning
appellant’s active participation in the drug transactions demonstrated the
nature of the previous relationship between appellant and Chalmers and supported
the State’s theory that appellant’s motive for killing Chalmers was
bitterness about being cheated out of drug money by Chalmers. It is
unlikely that the jury had an irrational emotional response to the drug dealing
testimony because the charged offense, murder, was more serious than the
extraneous offense, and drug dealing comprised a small portion of the State’s
case.
Appellant
claims that the State urged the jury to convict appellant based on testimony
concerning drugs. In her closing statement, the prosecutor argued, “I
ask you to listen to those words and think about the prior relation, the drug
dealing and how the Defendant felt he wasn’t getting a fair cut.
That’s what this is all about, not about getting a ride that night.”
This statement reiterates the State’s position that appellant’s motive to
kill Chalmers was a result of the drug dealing, and is not an attempt to have
the jury convict appellant for murder based on the extraneous offense evidence.
We
conclude that the trial court’s ruling admitting the testimony complained of
in this appeal was within the zone of reasonable disagreement as to whether it
was more probative than prejudicial. Accordingly, we hold that the trial court
did not abuse its discretion by admitting the evidence.
We
overrule appellant’s issue and affirm the trial court’s judgment.
ANNE
GARDNER
JUSTICE
PANEL F: LIVINGSTON, GARDNER
and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 13, 2004
NOTES
1.
See Tex. R. App. P. 47.4.