Slott v. State

856 S.W.2d 817, 1993 Tex. App. LEXIS 1965, 1993 WL 248754
CourtCourt of Appeals of Texas
DecidedJune 9, 1993
DocketNo. 09-90-161 CR
StatusPublished
Cited by1 cases

This text of 856 S.W.2d 817 (Slott 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
Slott v. State, 856 S.W.2d 817, 1993 Tex. App. LEXIS 1965, 1993 WL 248754 (Tex. Ct. App. 1993).

Opinions

OPINION ON REMAND

BROOKSHIRE, Justice.

On May 21, 1990, the appellant, Debbra Slott, went to trial before a jury for the murder of Donna Raney for having stabbed her to death with a knife. The jury was charged with instructions regarding murder and lesser included offenses. The jury found the appellant, Debbra Slott, guilty of the lesser included offense of voluntary manslaughter. The jury also assessed punishment at 20 years confinement in the Texas Department of Criminal Justice, Institutional Division, and made an affirmative finding of use of a deadly weapon. Appellant perfected her appeal to this Court and on January 8, 1992 this Court rendered an opinion overruling appellant’s points of error and affirming the judgment and sentence of the trial court with one justice filing 'a dissent. Slott v. State, 824 S.W.2d 225 (Tex.App.—Beaumont 1992), rev’d and rem., 843 S.W.2d 571 (Tex.Crim.App.1993).

The appellant, Debbra Slott, filed a petition for discretionary review and the Texas Court of Criminal Appeals granted said petition to determine whether unadjudicat-ed acts of misconduct are admissible at the punishment phase of a non-capital trial after the legislative amendment in 1989 to Tex.Code Crim.Proc.Ann. art. 37.07(3)(a) (Vernon Supp.1993).

In a Per Curiam opinion delivered December 23, 1992, the Texas Court of Criminal Appeals reversed the judgment of this Court of Appeals, and remanded the cause to this Court for reconsideration in light of its decision in Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).

Appellant brings one point of error alleging that the trial court committed reversible error when it allowed the introduction of evidence of four extraneous offenses before the jury at the punishment phase of the trial.

The issue before the Texas Court of Criminal Appeals in Grunsfeld was to de[818]*818termine whether Article 37.07(3)(a) as amended, allows admission of unadjudicat-ed extraneous offense evidence in the punishment phase of a trial for a non-capital offense.

In Grunsfeld as in Hunter v. State (decided with, and as a companion case to Grunsfeld) each defendant was charged with the offense of aggravated sexual assault on a female and in each case at the punishment phase, testimony was admitted that the defendant had sexually assaulted other individuals but there was no final conviction of said assaults. Timely objections to that testimony were lodged by each defendant under Article 37.07(3)(a) as being inadmissible. In each case the defendants’ mother testified that the defendant had not been previously convicted of a felony, thus establishing his eligibility for probation.

The relevant portion of Article 37.07(3)(a) as amended provides as follows:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged, (emphasis on portion added by amendment).

After the Court of Criminal Appeals in Grunsfeld examined the legislative intent and history of the amendment in question and the term “prior criminal record,” the court found evidence of extraneous unadju-dicated offenses was improperly admitted. After finding error, the court noted that it would be reversible unless it could be determined beyond a reasonable doubt that the error made no contribution to the assessment of punishment. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989); Tex. R.App.P. 81(b)2. The court then affirmed the Court of Appeals which had reversed the trial court in Grunsfeld, and reversed the Court of Appeals in Hunter which had affirmed the trial court and remanded both cases to their respective trial courts for proceedings consistent with Tex.Code.Crim. Proc.Ann. art. 44.29(b) (Vernon Supp.1993).

In the case before us, the appellant filed a motion in limine to prevent the introduction of five unadjudicated offenses. These offenses were not offered during the guilt/innocence portion of the trial. However, testimony concerning drug usage by the appellant was admitted with the consent of the appellant since it was part of her defense.

After the jury found the appellant, Deb-bra Slott, guilty of the lesser included offense of voluntary manslaughter, the prosecution informed the court that they wanted to refer to four extraneous offenses which had been the subject of a motion in limine filed by the appellant. The court was asked to rule on the admissibility of the extraneous offenses and the court held that Article 37.07 was the basis for which he would allow the introduction of that evidence over the objection by the appellant.

It should be noted at this point that the appellant had applied for felony probation alleging by sworn affidavit that she had never before been convicted of a felony in the State of Texas or any other State. In reviewing the case before us, in light of Grunsfeld, we recognize this to be a critical element in the case before us.

Appellant used one of the extraneous offenses as part of her defense, that is the use of controlled substances, but the remaining four 1) an assault on her ex-husband, Mike Gordon, with a glass Coke bottle, 2) stabbing the said Mike Gordon, 3) an assault on Mark Slott (her husband at the time of trial) by cutting him with a razor, and 4) assaulting the said Mark Slott with a knife, were admitted over objection by the appellant. Error was preserved by objection during a hearing out of the presence of the jury in accordance with Ethington v. State, 819 S.W.2d 854 (Tex.Crim.App.1991). The State mentioned the extraneous of[819]*819fenses in its opening argument of the punishment phase by referring to “defendant’s past”, “drug usage”, and “assaultive type of offenses that you may have been interested in that she may have committed in the past.” Mark Slott was the only witness tendered by the State during the punishment phase. He testified that she had cut him with a knife but that he had been beating her. The appellant testified also and on cross examination she was asked about knifing her ex-husband, Mike Gordon. All the above extraneous unadjudi-cated offenses were presented to the jury during the punishment phase. The appellant was the only witness on her behalf during the punishment phase. She testified that five of her seven children lived with her. She disclaimed remembering how the deceased got stabbed and went on to testify that she understood the usual and special terms of probation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peters v. State
31 S.W.3d 704 (Court of Appeals of Texas, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
856 S.W.2d 817, 1993 Tex. App. LEXIS 1965, 1993 WL 248754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slott-v-state-texapp-1993.