COURT
OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-060-CR
MILTON
SAVAGE, JR.
APPELLANT
V.
THE STATE
OF TEXAS
STATE
------------
FROM THE 367TH DISTRICT COURT OF DENTON
COUNTY
------------
MEMORANDUM OPINION
------------
I.
Introduction
Appellant
Milton Savage, Jr. appeals his conviction for aggravated assault. A jury found Savage guilty and assessed
his punishment at twenty-five years=
confinement and a $5,000 fine. The
trial court sentenced him accordingly.
In two points, Savage contends that the trial court erred (1) by
admitting extraneous bad acts evidence and (2) by overruling his objection to
allegedly improper argument by the State.
We will affirm.
II. Factual and Procedural
Background
Savage
and his girlfriend, Gabina Gosse, lived together in Gosse=s
apartment. On September 12, 2004,
an upstairs neighbor called 911 because she heard a woman screaming in the
apartment below. Officer Kristi
Nathan responded to the call, and when she knocked on Gosse=s
door, Savage answered it. He was
sweating and wearing a white t-shirt that had a few small blood smears on
it. Savage told Officer Nathan that
he and Gosse had been arguing because he was moving out but that nothing
physical had happened. While Officer Nathan and Savage were talking, Gosse
approached them from outside of the apartment. She was crying, her hair was messed up,
and she had blood on her lip and chin.
She told Officer Nathan that Savage had been threatening her and holding
a knife to her throat for the last twenty minutes.
Officer Andrea Fisher soon arrived to assist. Gosse walked Officer Fisher through the
apartment and explained what had just taken place. Gosse said that she and Savage had been
arguing, that she had told Savage that their relationship was over, and that she
had put some of his things outside and locked the door. Gosse said that she was sleeping on her
couch when she heard Savage kick in her back door. Savage entered her apartment and punched
her in the face. Gosse said that
she tried to call 911, but Savage grabbed her cell phone from her and threw it
across the room, breaking it into two pieces. Gosse said Savage forced her into the
bedroom and pinned her down on the bed.
Savage pulled two knives out from under the mattress and threatened her
with them. Gosse said that she
escaped through the back door when Savage got up to answer Officer
Nathan=s
knock at the front door.
Gosse
wrote a narrative victim statement setting forth the same facts that she had
told the officers. She also filled
out a domestic violence victim statement, and in answer to the question,
AHas
this person assaulted you before? When? Where? How?,@ she
responded, AYes,
[three] nights ago, the police were here.@
The
next morning, however, Gosse went to the police department and recanted her
story. She said that she had lied
to Officers Nathan and Fisher because she was angry at Savage for moving out and
because she wanted to get him in trouble.
She said that she had been drinking all day and had taken Valium. She said Savage broke into her apartment
because he was worried that she had overdosed. She said that she threw her phone across
the room because Savage wanted to call her sister-in-law to stay with her that
night and that she screamed because she wanted Savage to stay with her. The same day that Gosse recanted her
story, she also filed a complaint against Officer Fisher. She stated in her complaint that Officer
Fisher had asked Gosse Awhy
she was dating black guys.@
At
trial, Gosse testified that she lied to Officers Nathan and Fisher and that her
second story was true. She
contended that Officer Fisher told her what her statement needed to say in order
to hold Savage. She also said that
she told Officers Fisher and Nathan that she was intoxicated and that she had
been taking drugs but that Officer Fisher told Gosse that she did not need to
write that in her statement. Gosse
testified that she was not afraid of Savage and that he had never assaulted or
threatened her.
Prior
to trial, Savage filed a motion in limine, asking the trial court to instruct
the State not to mention any extraneous offenses without permission from the
trial court. After Gosse testified
for the defense, the State informed the trial court that after the defense
rested, it wished to call Barbara Giaimo to testify concerning
Savage=s
prior bad acts. In accordance with
Savage=s
motion in limine, the court held a hearing outside the jury=s
presence and overruled Savage=s
objection to Giaimo=s
testimony.
The
State then called Gosse=s
upstairs neighbor, who testified that on September 9th, three nights before
Savage allegedly assaulted Gosse, she heard a woman screaming and heard the
sounds of a struggle coming from Gosse=s
apartment. The State then called
Giaimo, who testified in the jury=s
presence that she lived near Savage and Gosse and that on September 9th, she
heard a woman screaming, AHelp
me, please, God help me, get out of here.@ Giaimo testified that she called 911
because she could see Savage inside the apartment with his arm around
Gosse=s
throat and stomach, pushing Gosse back towards the bedroom.
After
Giaimo testified, Gosse again took the stand. She testified that Savage did not
assault her on September 9th. She
explained that she lied in her victim statement when she wrote that Savage had
previously assaulted her.
III. Extraneous Offense
Testimony
In his
first point, Savage contends that the trial court erred by allowing testimony of
an extraneous offense. Savage does
not argue that Giaimo=s
testimony is not relevant, but instead apparently contends that under Rule 403,
the prejudicial nature of the testimony substantially outweighs any probative
value it may have because the acts to which Giaimo testified are not criminal
offenses. See Tex. R. Evid. 403. The State responds that
Giaimo=s
testimony was properly admitted to rebut Gosse=s
testimony that Savage had never assaulted her and also to rebut
Savage=s
defensive theory that Officer Fisher pursued Savage=s
conviction to retaliate against Gosse for filing a complaint against the
officer.
Generally,
evidence of other wrongful acts is not admissible to prove the character of the
person to establish that he acted accordingly regarding the alleged
offense. Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=g). An
extraneous offense may be admissible, however, if it has relevance apart from
its tendency to prove the character of a person in order to show that he acted
in conformity therewith. Id.
at 387. Evidence that logically
serves such purposes as Aproof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident@ is
relevant beyond its tendency to prove conforming character. Id.; See Tex. R. Evid. 404(b). Extraneous offenses are also admissible
to rebut a defensive theory or when a false picture is presented by the
defense. See, e.g., Crank
v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) (AProbably
the most common situation which gives rise to the admission of extraneous
offenses is in rebuttal of a defensive theory.@),
cert. denied, 493 U.S. 874 (1989), overruled on other grounds by
Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993); Albrecht
v. State, 486 S.W.2d 97, 100-01 (Tex. Crim. App. 1972) (AEvidence
of extraneous offenses committed by the accused has been held admissible . . .
to refute a defensive theory raised by the accused.@);
Yohey v. State, 801 S.W.2d 232, 236 (Tex. App.CSan
Antonio 1990, pet. ref'd) (AAs a
general rule the State is entitled to present, on rebuttal, any evidence that
tends to refute the defensive theory. . . . The possibility that such rebuttal
evidence may encompass extraneous offenses or acts on the part of the defendant
does not preclude its admission into evidence.@).
Here,
it is clear that the trial court admitted the extraneous offense evidence
concerning the September 9th incident to rebut Savage=s
defensive theories that Gosse lied in her statement to the officers, that Gosse
was not afraid of Savage and also lied when she indicated that he had previously
assaulted her on September 9th, and that Officer Fisher orchestrated
Savage=s
prosecution to retaliate against Gosse because Gosse filed a complaint against
Fisher.
We
next apply the Rule 403 balancing factors set out in Montgomery to
determine whether the trial court abused its discretion by determining that the
probative value of the September 9th extraneous offense evidence was not greatly
outweighed by its prejudicial effect.
First we examine how compellingly Giaimo=s
testimony shows that Gosse was afraid of Savage and that Savage had in fact
assaulted Gosse on September 9th.
Savage=s
defense attorney contended at trial that Gosse made up her initial story to the
police, and Gosse herself testified that she was not afraid of Savage and had
never been attacked by him. The
State answered this contention with Giaimo=s
testimony that three days before the incident at issue, she heard a woman
screaming and saw Savage pushing Gosse.
Giaimo=s
testimony makes it at least somewhat more likely that Gosse lied when she said
she was not afraid of Savage and when she said Savage had never assaulted her.
Moreover,
it is doubtful that Giaimo=s
testimony impressed the jury in some irrational way; the prior act that Giaimo
testified to was no worse than the charged offense. Additionally, the jury had already heard
testimony from Gosse=s
upstairs neighbor that on September 9th, she also heard a woman repeatedly
screaming Ahelp
me@ from
Gosse=s
apartment and that she heard a struggle Alike
[Gosse] was being hit and pushed against the wall.@ The State did not spend an excessive
amount of time developing the extraneous evidence during the guilt-innocence
phase; the testimony in front of the jury amounts to 14 pages from a 274-page
record. Cf. Booker v. State,
103 S.W.3d 521, 536 (Tex. App.CFort
Worth 2003, pet. ref=d)
(op. on reh=g)
(noting third Montgomery factor weighed in favor of excluding extraneous
offense when trial time spent proving extraneous offense exceeded time spent
proving charged offense).
Furthermore, the State needed Giaimo=s
testimony because Gosse testified that the charged offense never took
place. The evidence of an
extraneous act showing Savage=s
behavior towards Gosse just three days before the alleged aggravated assault at
issue was necessary to rebut Gosse=s
claim that she lied in her statement to the police and to rebut the
defense=s
Aframe
up@
theory that Officer Fisher pursued Savage=s
conviction to retaliate against Gosse for filing a complaint against her. See Waddell v. State, 873 S.W.2d
130, 136 (Tex. App.CBeaumont
1994, pet. ref'd) (holding that extraneous bad acts were logical and necessary
rebuttal of major defense theory of fabrication).
Our
review of the record and the relevant criteria under Rule 403 demonstrates that
the probative value of Giaimo=s
testimony was not substantially outweighed by its prejudicial impact. Consequently, we hold that the trial
court did not abuse its discretion by admitting Giaimo=s
testimony regarding Savage=s
extraneous offense. See
Montgomery, 810 S.W.2d at 392‑93.
We overrule Savage=s
first point.
IV. Alleged Improper
Argument
At
trial, the State presented testimony from Officers Nathan and Fisher that it was
common for victims of family violence to recant their initial statements to
police. In closing argument, the
State=s
attorney discussed how the jury should decide a conflict in testimony:
[Prosecutor 1]: Now, in
voir dire [Prosecutor 2] talked to you about how do you decide a case when
[there are] conflicts in testimony.
How do you do that?
You=ve got Party A coming and
saying one thing, Party B coming and saying another thing. You=re the jury. You decide how do you do that. And then he went a step further and
asked you, how do you do it in a case where the two stories, A and B, are coming
from the same person?
You=ve got a victim of a
crime who at first says they are a victim of a crime and then says
they=re not. And everybody in here said two things:
Number one, generally speaking, . . . all of you agreed, one of you even
specifically said, whatever came out first - -
[Defense attorney]: I=m going to object, Your
Honor. That=s asking them to consider
facts that are not in evidence.
The Court: Sustained.
[Defense attorney]: I=d ask the jury be
instructed to disregard.
The Court: The very last portion of the argument, I
will instruct the jury to disregard.
[Defense attorney]: I=d ask for a
mistrial.
The Court: Denied.
[Prosecutor 1]: Whatever comes out first tends to be more
reliable. The next - -
[Defense attorney]: Objection, Your Honor. That assumes facts not in
evidence.
The
Court: Overruled. [Emphasis added.]
In his
second point, Savage contends that the trial court erred by overruling his
objection to the above-italicized final argument by the State during the
guilt-innocence phase.
Specifically, Savage complains that the prosecutor=s
statement that A[w]hatever
comes out first tends to be more reliable@ was
an Ainvitation
to consider evidence outside the record . . . [in] an attempt by the State to
bolster their entire case with evidence that was not before the
jury.@ The State argues that the comment was a
summation of the testimony of two police officers, that it was a reasonable
deduction from that testimony, or alternatively, that it was common knowledge.
To be
permissible, the State=s jury argument
must fall within one of the following four general areas: (1) summation of the evidence; (2)
reasonable deduction from the evidence; (3) answer to argument of opposing
counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95
(Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro
v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
One
permissible area of jury argument is the making of reasonable deductions from
the evidence. Gaddis v.
State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Counsel is allowed wide latitude in
drawing inferences from the evidence, so long as the inferences drawn are
reasonable, fair, legitimate, and offered in good faith. Id. The purpose of closing argument is to
assimilate the evidence to assist the fact finder in drawing proper conclusions
from the evidence. Id. at
400. The jury is then free to
accept or reject such conclusions and inferences. Id.
Here,
the State read to the jury portions of Gosse=s
written statements in which she said that Savage assaulted her, and the jury
heard Gosse=s
testimony that she lied in those statements. The jury heard Officers Nathan and
Fisher testify that it is very common for victims of domestic violence to recant
their initial statements to police officers. A reasonable deduction from the
officers=
statements is that the first statement of a domestic violence victim is more
reliable than the second statement, i.e., that a domestic violence victim
typically tells the truth in her first statement but commonly later recants that
statement. See generally Hudson
v. State, No. 01-00-00431-CR, 2001 WL 1587337, at *3 (Tex. App.CHouston
[1st Dist.] Dec. 13, 2001, pet. ref=d)
(not designated for publication) (restating social worker=s
testimony that reasons for domestic violence victim to recant her accusations
include abuser=s
financial support, abuser=s
promising to get help, and abuser=s
threatening victim into recanting).
Thus, we hold that the complained of arguments constituted a reasonable
deduction from the evidence and were proper. See Felder, 848 S.W.2d at
94-95. We hold that the trial court
did not err by overruling Savage=s
objection to the prosecutor=s jury
argument. We overrule
Savage=s
second point.
V. Conclusion
Having
overruled both of Savage=s
points, we affirm the trial court=s
judgment.
PER
CURIAM
PANEL F: WALKER, J.; CAYCE, C.J.; and
LIVINGSTON, J.
DO NOT
PUBLISH
Tex.
R. App. P.
47.2(b)
DELIVERED: December 8,
2005
See Tex. R. App. P.
47.4.