Opinion issued July 7, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00493-CR ——————————— RODRICK ODELL WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1373609
MEMORANDUM OPINION
A jury convicted appellant, Rodrick Odell Williams, of murder and assessed
his punishment at confinement for life in the Institutional Division of the Texas
Department of Criminal Justice. In two points of error, appellant contends that the trial court abused its discretion by (1) admitting extraneous offense evidence because
the State failed to provide notice of its intention to offer the evidence as required by
Code of Criminal Procedure article 37.07, and (2) denying his request to include a
sudden passion instruction in the jury charge. We affirm.
Background
Shortly after 6:00 a.m. on January 1, 2013, Houston Police Department
Officer Hunter was dispatched to a shooting in the 9600 block of Bissonnet, near
Cube’s Sports Bar and Ballers, two after-hour nightclubs. When Officer Hunter
arrived, he observed paramedics attending to a man lying on the ground and later
identified as the complainant, Damon Romel Williams, whom paramedics
pronounced as dead. An autopsy later revealed that Williams had been shot ten
times.
At trial, Katerina Gutierrez testified that she and a friend went to Cube’s just
before midnight on December 31, 2012. While there, Gutierrez started talking with
appellant whom she knew by the nickname “Memphis.” Gutierrez testified that she
saw appellant and the complainant start arguing but then left the bar and went
outside. The complainant and appellant left the bar shortly afterwards when
Gutierrez saw appellant run up behind the complainant and shoot him. Gutierrez
testified that she heard five or six shots. Gutierrez later identified appellant in a
photo array as the shooter.
2 Frank Medina, an employee at Cube’s, testified that he saw appellant who he
knew as “Memphis” at the bar in the early morning of January 1, 2013. Medina
testified that appellant and the complainant began arguing and pushing each other
whereupon two bouncers escorted them outside. According to Medina, the
altercation was “a little bickering, a little pushing, a little shoving, but nothing
major,” and that neither appellant nor the complainant became physical or had to be
“manhandled” by the bouncers but “[t]hey just took it as, okay, we got to go.”
Medina testified that when the complainant began to walk away from appellant,
appellant went to his car, opened the trunk, and removed a gun. Medina then saw
appellant shoot the complainant approximately four or five times. Medina testified
that appellant then got in his car, drove around the parking lot, exited his car, and
shot the complainant several more times as he lay on the ground. Medina later
identified appellant in a photo line-up as the shooter.
Clyde Benjamin, a TDCJ inmate at the time of trial, testified that on January
10, 2013, while he was at the Harris County jail awaiting processing, he recognized
appellant whom he knew as “Memphis.” Appellant had been arrested during a traffic
stop earlier that day. When Benjamin asked appellant why he was in jail, appellant
told him that it was for “dumping on someone” who had disrespected him in a bar,
which Benjamin testified is slang for shooting someone until the clip is empty.
3 Appellant presented two witnesses, Adam Daniels and Willie Jobe. Daniels
and Jobe testified that they saw the complainant get shot in the parking lot outside
the nightclubs and that appellant was not the shooter.
At the conclusion of the guilt-innocence phase of the trial, the jury found
appellant guilty of the charged offense.
During the punishment phase, Officer Trevino testified about the traffic stop
that led to appellant’s arrest. Trial counsel objected to the State eliciting any
testimony related to the discovery of the pistol and marijuana under the hood of
appellant’s vehicle during the stop. Trial counsel acknowledged “I am aware of [the
extraneous evidence] and it’s in the police report, we have even talked about it,” but
objected to its admission on the ground that the State had failed to provide notice as
required under Code of Criminal Procedure article 37.07. After the trial court
overruled the objection, Officer Trevino testified about discovery of the pistol.
The State also sought to introduce photographs from appellant’s Facebook
page depicting appellant holding a firearm. Trial counsel again objected on the
ground that the State had not provided him with written notice pursuant to article
37.07. The State responded that counsel had been aware of the photos for a long
time, and counsel admitted that the State had previously shared the photographs with
him. The trial court overruled the objection and the photos were admitted.
4 Reginald Williams, appellant’s father, and Robert Harper, appellant’s
minister, testified on behalf of the defense. At the conclusion of the punishment
hearing, trial counsel informed the court that the State had just given him a list of
appellant’s numerous prior convictions in Tennessee, which included convictions
for aggravated assault and drug-related offenses, on the morning of the hearing and
that he had not known about these offenses prior to that moment. Trial counsel then
stated,
The State acknowledged that was not part of their written notice, but indicated that they intend to offer those through, Did-you-know or have-you-heard type cross-examination questions if I presented any what we will call character witnesses on behalf of the defendant.
Therefore, it is my clear trial strategy to not put on two witnesses, meaning Bianca Horton [appellant’s girlfriend] and his mother Tane Burrus, that I limited some of the questioning to Robert Harper, the minister, and also his father, Reginald Williams, because the worst thing that I could do for this defendant is to open the door that will allow the State to get in any of those priors.
Trial counsel did not offer the two witnesses and the State did not attempt to
introduce the Tennessee convictions. The jury assessed appellant’s punishment at
confinement for life. This appeal followed.
Extraneous Offense Evidence
In his first point of error, appellant contends that the trial court abused its
discretion in overruling appellant’s objection under article 37.07 because the State
failed to provide reasonable notice of its intention to offer extraneous offense
5 evidence during the punishment phase. Specifically, he complains that the State did
not provide reasonable notice of its intent to introduce evidence of (1) the marijuana
and pistol found during the search of appellant’s vehicle, (2) photographs from
appellant’s Facebook page showing him holding a gun, and (3) appellant’s numerous
prior convictions in Tennessee.
A. Standard of Review and Applicable Law
We review the admission of extraneous offenses and bad acts for an abuse of
discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We
will reverse the trial court’s decision only when it is so clearly wrong that it is outside
“the zone of reasonable disagreement.” Salazar v. State, 38 S.W.3d 141, 153–54
(Tex. Crim. App. 2001).
The admissibility of evidence at the punishment phase of trial is governed by
Article 37.07, § 3(a)(1), which provides, in relevant part:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
6 TEX. CODE CRIM. PRO. ANN. Art. 37.07, § 3(a)(1) (West Supp. 2015). Section 3(g)
further provides that “[o]n timely request of the defendant, notice of intent to
introduce evidence under this article shall be given in the same manner required by
Rule 404(b), Texas Rules of Evidence.” See id. § 3(g).
“The purpose of the notice requirement is to enable the defendant to prepare
to meet the extraneous offense evidence.” Roethel v. State, 80 S.W.3d 276, 282
(Tex. App.—Austin 2002, no pet.) (op. on reh’g). Any deficiency in notice is
analyzed on how it affected a defendant’s “ability to prepare for the evidence.” Id.;
see also Nance v. State, 946 S.W.2d 490, 492 (Tex. App.—Fort Worth 1997, pet.
ref’d) (explaining notice requirement avoids unfair surprise and trial by ambush).
However, the notice required under Rule 404(b) does not have to be provided in
written form. See Agbogwe v. State, 414 S.W.3d 820, 836 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (noting that although written Rule 404(b) notice provided
did not include certain extraneous acts, Rule 404(b) does not require that notice be
in writing); Blackmon v. State, 80 S.W.3d 103, 108 (Tex. App.—Texarkana 2002,
pet. ref’d). The reasonableness of the notice turns on the facts and circumstances of
each case. Segovia v. State, 467 S.W.3d 545, 553–54 (Tex. App.—San Antonio
2015, pet. ref’d); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet.
ref’d).
7 Admitting evidence of extraneous offenses when the State has not provided
proper notice is non-constitutional error, subject to harm analysis under Texas Rule
of Appellate Procedure 44.2(b). McDonald, 179 S.W.3d at 578; TEX. R. APP. P.
44.2(b). An appellate court may reverse a judgment of conviction or punishment
based on non-constitutional error only if that error affected the defendant’s
substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s
verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
When a defendant objects to the admissibility of extraneous acts based
exclusively on the State’s failure to give proper notice, reviewing courts “look only
at the harm that may have been caused by the lack of notice and the effect the lack
of notice had on the [defendant’s] ability to mount an adequate defense.” McDonald,
179 S.W.3d at 578; see also Roethel, 80 S.W.3d at 281–82 (noting that purpose of
article 37.07’s notice requirement is to enable defendant to prepare to meet
extraneous offense evidence, and that harm is assessed in view of whether statute’s
purpose was thwarted). Specifically, we consider whether the lack of reasonable
notice surprised the defense. Hernandez v. State, 176 S.W.3d 821, 823–25 (Tex.
Crim. App. 2005) (citing with approval Roethel, 80 S.W.3d at 281–82). “A
defendant may demonstrate surprise by showing how his defense strategy might
have been different had the State explicitly notified him that it intended to offer the
8 extraneous-offense evidence.” Allen v. State, 202 S.W.3d 364, 369 (Tex. App.—
Fort Worth 2006, pet. ref’d) (discussing Rule 404(b) notice) (citing Hernandez, 176
S.W.3d at 826).
B. Analysis
On September 7, 2014, appellant timely requested notice of the State’s intent
to introduce extraneous offense evidence and evidence of prior criminal convictions.
The State notified appellant that it intended to offer evidence regarding appellant’s
membership in the Gangster Disciple Criminal Street gang.1
1. Gun, marijuana, and Facebook photos
During the State’s questioning of Officer Trevino regarding the traffic stop
that led to appellant’s arrest, trial counsel objected to the State eliciting any
testimony regarding the gun and marijuana discovered under the hood of appellant’s
vehicle. Trial counsel acknowledged “I am aware of [the extraneous evidence] and
it’s in the police report, we have even talked about it,” but objected to its admission
on the ground that the State had failed to provide written notice. When the State
sought to introduce photographs from appellant’s Facebook page depicting him
holding a firearm, trial counsel again objected to the lack of written notice. The
State responded that trial counsel “has been aware of [the photos] for a long time,”
1 We note that these pleadings do not appear in the clerk’s record. However, appellant has attached a copy of the documents, reflecting that they were filed with the district clerk’s office on September 7, 2014, in the appendix to his brief.
9 and counsel admitted that he was familiar with the photos and that the prosecutor
had previously shared the photos with him. The trial court overruled the objections.
The purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is,
trial by ambush. Nance, 946 S.W.2d at 493. Here, the record demonstrates that the
prosecutor discussed the pistol, marijuana, and Facebook photos with counsel before
trial, and that counsel acknowledged to the court that he had actual notice of the
evidence. See Agbogwe, 414 S.W.3d at 836 (noting that Rule 404(b) does not require
that notice be in writing); see also Barnstein v. State, No. 02-04-442-CR, 2006 WL
59400, at *7 (Tex. App.—Fort Worth Jan. 12, 2006, pet. ref’d) (mem. op., not
designated for publication) (concluding trial court did not abuse its discretion when
it determined that State had provided reasonable notice to defense of its intent to
introduce extraneous bad acts where record showed prosecutor had provided oral
notice to trial counsel and offense report included information regarding extraneous
offenses). Further, we note that the State did not elicit any testimony from Officer
Trevino regarding the marijuana. The trial court did not abuse its discretion in
determining that the State provided appellant with reasonable notice of its intent to
introduce evidence regarding the gun, marijuana, and Facebook photos.
2. Tennessee convictions
Appellant also complains that the State failed to provide reasonable notice of
its intent to introduce evidence of his numerous prior convictions in Tennessee.
10 At the punishment hearing, trial counsel called appellant’s father and
appellant’s minister to testify on behalf of the defense. At the conclusion of the
hearing, counsel informed the court that the State had only provided him a written
list of appellant’s numerous prior convictions in Tennessee on the morning of the
hearing, which included felony convictions for aggravated assault and drug-related
offenses. Counsel informed the court that, as a result of the deficient notice, his trial
strategy was to not call two witnesses and that he had limited his examination of the
other two witnesses.
Appellant argues on appeal that the State’s failure to provide reasonable notice
and its expressed intention to use the Tennessee convictions to impeach his witnesses
thwarted presentation of his defense because he did not call two witnesses and
limited his examination of the two he did call in order to not “open the door” to those
prior convictions.2
A review of the record reveals that the State did not introduce the Tennessee
convictions at the punishment hearing, and therefore, counsel did not object to their
admission and the trial court did not rule on their admissibility.3 Consequently, there
2 The State does not address appellant’s argument regarding the Tennessee convictions in its brief. 3 The written list of appellant’s prior Tennessee convictions about which appellant complains are not part of the record before us. However, the record reflects that counsel informed the court that the State had provided a list of appellant’s Tennessee convictions on the morning of the hearing, and the State did not dispute the
11 is no trial court ruling before us to review. We also note that, other than a general
assertion that he “could have prepared a different defense for punishment, or could
have simply prepared those witnesses for the questions they were likely to face,”
trial counsel made no proffer as to what his witnesses’ testimony would have been
had they testified or how he would have modified his trial strategy had he been
provided reasonable notice of the State’s intent to introduce the convictions. Further,
the record does not reflect that trial counsel requested a continuance or recess to
prepare the witnesses for the State’s questions.
In Luce v. United States, the United States Supreme Court addressed a similar
situation where a defendant claimed that his rights had been infringed upon when
the Government’s threat to use a prior conviction for impeachment purposes kept
him from testifying. 469 U.S. 38, 40, 105 S. Ct. 460, 462 (1984). The Court held
that the issue was waived because the defendant did not testify, thereby depriving
the appellate courts of a record on which to make a ruling. See id. at 43, 105 S. Ct.
at 464.
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true
statement. We therefore assume that the State provided written notice of these convictions on the morning of the hearing, as contended by appellant. See Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001) (noting courts accept as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel).
12 under Rule 609(a)(l),4 which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.
Id. at 41, 105 S. Ct. at 463. The Texas Court of Criminal Appeals used the same
reasoning and cited Luce when confronted with the case of a defendant claiming
error when he declined to testify in the punishment phase of a trial because of the
threat of impeachment with a prior conviction. Jackson v. State, 992 S.W.2d 469,
479–80 (Tex. Crim. App. 1999).
Given the record before us, we would be forced to speculate about (1) the
precise nature of the witnesses’ testimony; (2) whether the State would have sought
to introduce the evidence through cross-examination of the witnesses; (3) whether
the trial court would have allowed the State to introduce it or excluded it based on
the State’s lack of reasonable notice; and (4) whether any resulting error in
permitting the extraneous evidence would have been harmless. See Jackson, 992
S.W.2d at 479–80; see also Washington v. State, No. 14–13–00818–CR, 2015 WL
2250628, at *2 (Tex. App.—Houston [14th Dist.] July 15, 2015, pet. dism’d) (mem.
op., not designated for publication). We cannot make a ruling based on speculation.
Appellant failed to preserve error with regard to the Tennessee convictions.
4 Texas Rule of Evidence 609 was derived from the federal corollary rule. Theus v. State, 845 S.W.2d 874, 879 (Tex. Crim. App. 1992).
13 We emphasize that this conclusion is controlled by the facts of this case. The
State should not take this opinion as license to ignore the Legislature’s mandate that
the State provide reasonable notice of its intent to introduce extraneous offense
evidence. See Roethel, 80 S.W.3d at 283. To protect the fundamental fairness of
our system, defendants must be permitted to determine what allegations they will be
required to defend themselves against during trial. Nance, 946 S.W.2d at 492. As
previously stated, the clear purpose of article 37.07, section 3(g) is to avoid unfair
surprise and trial by ambush. Id. Providing notice to trial counsel on the morning
of the punishment hearing of its intention to introduce numerous prior out-of-state
felony convictions through cross-examination of defense witnesses undeniably
defeats this purpose and, on a slightly different record, could have required this case
to be remanded for another punishment hearing.
We overrule appellant’s first point of error.
Sudden Passion Instruction
In his second point of error, appellant argues that the trial court abused its
discretion by overruling his objection to the jury charge and his request that a sudden
passion instruction be included in the charge.5
5 Although appellant frames his point of error as a complaint about the trial court’s failure to instruct the jury on the lesser-included offense of second-degree murder, a review of the record below and his brief makes clear that he is actually complaining about the trial court’s denial of his request for a sudden passion instruction.
14 A. Standard of Review and Applicable Law
We use a two-step process in reviewing jury charge error. Wooten v. State,
400 S.W.3d 601, 606 (Tex. Crim. App. 2013) (citing Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005)). If we first determine that error exists in the charge,
we then review the record to determine whether the error caused sufficient harm to
require reversal of the conviction. Wooten, 400 S.W.3d at 606.
At the punishment stage of a murder trial, a defendant may argue that he
caused the death while under the immediate influence of sudden passion arising from
an adequate cause. Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003).
Sudden passion is a mitigating circumstance that, if found by the jury to have been
proven by a preponderance of the evidence, reduces the offense from a first-degree
felony with a punishment range of five to ninety-nine years’ imprisonment to a
second-degree felony with a punishment range of two to twenty years. TEX. PENAL
CODE ANN. §§ 12.32(a), 12.33(a), 19.02(d) (West 2011). A defendant is entitled to
a jury instruction on the issue of sudden passion if the record, at a minimum, supports
an inference that (1) the defendant in fact acted under the immediate influence of a
passion such as terror, anger, rage, or resentment; (2) his sudden passion was in fact
induced by some provocation by the deceased or another acting with him, which
provocation would commonly produce such a passion in a person of ordinary
temper; (3) he committed the murder before regaining his capacity for cool
15 reflection; and (4) a causal connection existed “between the provocation, passion,
and homicide.” Wooten, 400 S.W.3d at 605 (quoting McKinney v. State, 179 S.W.3d
565, 569 (Tex. Crim. App. 2005)); see also TEX. PENAL CODE ANN. § 19.02(a)(1)–
(2) (West 2011) (defining sudden passion and adequate cause).6
In considering whether any evidence was raised on this punishment issue, we
review the record from both the guilt-innocence and punishment phases of the trial.
Trevino, 100 S.W.3d at 238. We review evidence offered in support of a defensive
issue in the light most favorable to the defense. See Griffin v. State, 461 S.W.3d
188, 192 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Granger v. State, 3
S.W.3d 36, 38 (Tex. Crim. App. 1999)). However, “[t]he mere fact that a defendant
acts in response to the provocation of another is not sufficient to warrant a charge on
sudden passion. Instead, there must be some evidence that the defendant was under
the immediate influence of sudden passion.” Trevino, 100 S.W.3d at 241.
Appellant argues that he was entitled to have a sudden passion instruction
submitted to the jury because there was more than a scintilla of evidence to support
6 Sudden passion is defined as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2011). Adequate cause means “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1).
16 his requested charge. Specifically, appellant points to Medina’s testimony that
appellant and the complainant were arguing in the bar, they had to be escorted
outside by bouncers, appellant and the complainant continued their argument
outside, and that whatever the subject of the argument, it was sufficient to cause
appellant to circle the parking lot, return to the complainant, and shoot him several
more times. Appellant also relies on Benjamin’s testimony that appellant told him
that he was in jail because he had “dumped” on someone who had disrespected him
in a club.
The record reveals that Medina described the altercation as “a little bickering,
a little pushing, a little shoving, but nothing major.” He testified that when the
bouncers escorted appellant and the complainant out of the bar, neither appellant nor
complainant became physical or had to be “manhandled,” but “[t]hey just took it as,
okay, we got to go.” This evidence does not demonstrate the anger, rage, or
resentment required to establish sudden passion. See Dukes v. State, ___ S.W.3d
___, 2016 WL 828106, at *6 (Tex. App.—Houston [1st Dist.] Mar. 3, 2016, no pet.
h.) (noting sudden passion is extreme emotional and psychological state and that
ordinary anger does not justify sudden passion instruction); Willis v. State, 936
S.W.2d 302, 305 (Tex. App.—Tyler 1996, writ ref’d) (concluding issue of sudden
passion arising from adequate cause was not raised where defendant was having
argument with victim, victim walked away and broke out windows of defendant’s
17 car, and defendant then left and retrieved gun from his room, returned, and shot
victim repeatedly in back). Although Benjamin testified that appellant told him that
he “dumped” on someone who had disrespected him at a club, there is no testimony
as to what the complainant allegedly said to appellant and, therefore, no evidence
showing whether the complainant’s remarks were of a kind that would make an
ordinary person’s mind incapable of cool refection. See Dukes, 2016 WL 828106,
at *6. Finally, Medina’s testimony that after the complainant began to walk away
from appellant, appellant went to his car, opened the trunk, removed a gun, and shot
the complainant does not show that appellant was angry to the degree that he was
incapable of cool reflection but rather reveals a deliberate, reflective action by
appellant. See Saldivar v. State, 980 S.W.2d 475, 505–06 (Tex. App.—Houston
[14th Dist.] 1998, pet. ref’d) (concluding defendant who became enraged after
victim divulged that victim’s father had accused defendant of embezzlement and
lesbianism and killed victim as she turned and began walking towards door was not
entitled to sudden passion charge); Tronsco v. State, No. 06-03-00065-CR, 2004 WL
573659, at *9 (Tex. App.—Texarkana Mar. 24, 2004, pet. ref’d) (mem. op., not
designated for publication) (finding defendant’s testimony that he obtained machete
from his truck after victim had kicked him, struck victim with machete, and then
when he perceived another threat from victim, obtained knife and stabbed victim
showed deliberate, reflective action).
18 Because we find no evidence raising an issue that appellant shot the
complainant under the immediate influence of a sudden passion arising from an
adequate cause, the trial court did not err in overruling his objection to the jury
charge and his requested instruction on the issue. See Saldivar, 980 S.W.2d at 506.
Accordingly, we overrule appellant’s second point of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
Radack, C.J., concurring in judgment only, without separate opinion.
Do not publish. TEX. R. APP. P. 47.2(b).