Tibbs, Randy Dale v. State

Opinion

Affirmed and Majority and Concurring Opinions filed July 17, 2003

Affirmed and Majority and Concurring Opinions filed July 17, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01173-CR

NO. 14-01-01174-CR

RANDY DALE TIBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 872,137 and 872,015

M A J O R I T Y   O P I N I O N

Following a jury trial, appellant Randy Dale Tibbs was convicted of murder and aggravated assault with a deadly weapon.  See Tex. Penal Code Ann. '' 19.02 and 22.02 (Vernon 1994).  The jury assessed punishment at fifteen years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  In one issue, appellant contends the trial court committed reversible error when it admitted certain character evidence.  We affirm.

BACKGROUND

Appellant=s charges arose out of a fight that occurred on Saturday, March 17, 2001.  On that date, appellant, his fiancee, and their two young children visited the home of appellant=s friend, Brian Brown.  Appellant helped Brown clear brush from Brown=s land and, upon completion of this task, appellant and his family stayed for a barbecue.  At approximately 6:00 p.m., appellant and Brown left to purchase beer at a convenience store.  They took Brown=s Ford Explorer and were accompanied by appellant=s fifteen-month-old daughter, Mary.

At the convenience store, Brown and appellant entered the store with Mary.  While Brown and appellant were in the store, complainant Simmons parked his vehicle and blocked Brown=s car.  When Brown, appellant, and Mary returned to their vehicle, harsh words were exchanged between either Brown and Simmons or appellant and Simmons.  As Brown circled the parking lot to leave, his car was either flagged down by Simmons, or he decided to confront Simmons on his own.  An altercation arose between Simmons and Brown and the two men proceeded to fight with their fists.  After several minutes, complainant Ponce, who was also at the store, entered the fight to defend his friend Simmons.  There were several bystanders. 

Although witnesses gave significantly different accounts of the fight, witnesses agree that at some point, appellant became part of the struggle.  He was the only one with a weapon; a AK-bar knife@ with a 9-inch blade.  Appellant admits stabbing Simmons once in the side and Ponce once in the back and once in the chest.  Ponce died at the scene from injuries inflicted by appellant; Simmons suffered a punctured lung but has since recovered.

Matthew Simmons testified that the fight began because either Brown or appellant yelled a racial slur at him as he walked toward the convenience store.  According to Simmons, he walked up to the truck and had words with Brown.  After words were spoken, Brown exited the truck and began to fight with Simmons.  Ponce joined the fight to help Simmons.  Brown hit Simmons so hard Simmons fell to his knees and became disoriented.  When Simmons re-oriented himself, he saw Ponce and Brown fighting near the passenger side of the truck.  Simmons then tried to split Ponce and Brown apart.  While trying to break up the fight, Simmons was stabbed by appellant.

According to appellant=s testimony, Simmons started a fight with Brown for no apparent reason.  Appellant testified Brown was being beaten by several men and was yelling, AGet=m off me. Get=m off me. Somebody call the cops.@  The  men moved so close to the truck in which appellant and his daughter were sitting that the truck began to rock with the force of the fighting.  As that happened, appellant began to look for something with which to defend himself.  Appellant found a knife in the back of Brown=s truck.  At that moment, appellant testified someone pulled him out of the truck.  Appellant said he thought about driving away, but was unable to do so before someone pulled him out of the truck.

At trial, the State=s theory of the case was that appellant and Brown were white supremacist Askinheads@ and that the fight was racially motivated. To support this theory, evidence was offered to show: 

$          Appellant and Brown are both Caucasians; both had shaved heads the day of the fight; and Brown had swastika and neo-Nazi lightening bolt tattoos over much of his body­.

$          Simmons is half African-American; Ponce was Hispanic.

$          Brown=s actions the day of the fight were, according to bystanders,Afull of hate.@

$          Brown made derogatory remarks to a Pakistani store clerk.

$          Either Brown or appellant started the fight by addressing Simmons with a racial slur.

$          Brown made racially-charged comments during the fight.

$          Brown was known as a racist and Aneighborhood skinhead@ prior to the fight.

$          Brown was once arrested for spray-painting a wall covered with AMexican graffiti.@

$          Brown once claimed to worship AOdin@ in the religious-preference section of a police department booking sheet.^[1]         

Appellant=s theory of the case was that appellant stabbed Ponce and Simmons in self-defense and in defense of Brown and appellant=s daughter.  To support this theory, appellant offered the following evidence:

$                   Appellant and Brown went to the store to buy beer, not to provoke a racially-charged incident.

$          Brown has friends and family who are Hispanic and African-American.

$          Brown attends a Baptist church and his mother is unaware of any affiliation with AOdin.@

$          Brown and appellant have reputations for peacefulness and are not racists.

$          Simmons admits he has been convicted three times for assault and that he is not the type to back down from a fight.

$          While Simmons admits he had six to seven beers prior to the fight, neither Brown nor appellant ingested alcohol prior to the incident.

$          Ponce=s autopsy revealed his blood alcohol level was three times the legal driving limit, he had significant amounts of pure cocaine in his body fluids, and he took cocaine within an hour of his death.

$          The bulk of Brown=s tattoos were covered by clothing the night of the fight and the tattoos described by the State as Aneo-Nazi@ were not visible.

$          Brown made innocuous small talk with an African-American man in the store immediately prior to the fight.

$          Brown=s use of the word Anigger@ was made in an inoffensive way.

$          Brown did not provoke the fight with Simmons; rather, Simmons initiated it by blocking Brown=s vehicle and by engaging Brown as he tried to exit the parking lot.

$                   Brown tried to disengage during the fight by (1) initially driving away from Simmons before being flagged down; (2) pointing out there was a little girl in the car; and (3) calling for appellant=s help after Ponce, Simmons, and two others outnumbered Brown in the fight.     

$                   Appellant remained in the car with Mary, despite Brown=s calls for help and his being outnumbered by at least four to one.  

$          Appellant feared for Brown=s, Mary=s, and his own safety, and he perceived a threat of bodily harm because Brown was hit on the head with a beer bottle.

$          Appellant was pulled from Brown=s car by Brown=s attackers; he did not leave the vehicle willingly. 

$          Fearing for Mary=s and Brown=s safety, as well as his own, appellant blindly swung the knife at his attackers.

$          As a result of the encounter, appellant suffered a black right eye, bruised left eye, and an injury to his hand.

ANALYSIS

Appellant asserts one point of error, arguing the trial court committed reversible error when it (1) admitted irrelevant and unfairly prejudicial evidence that Brown, who was with appellant at the time of the charged offenses, was a neo-Nazi skinhead; (2) allowed the State to portray appellant as a skinhead by this association; and (3) admitted other irrelevant and unfairly prejudicial, racially-charged evidence.

Standard of Review

We review a trial court=s ruling on the admissibility of evidence under an abuse of discretion standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).   We will reverse only if the trial court=s decision falls outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990).

Waiver

In his appeal, appellant objects to the trial court=s admission of several pieces of evidence pertaining to Brown=s character.  Specifically, he objects to the State=s evidence that suggests Brown is a racist and Askinhead,@ Brown was once arrested for spray-painting over Mexican graffiti, Brown once identified himself as an AOdinist@ on a police booking sheet, and Brown has Swastika and ASS@ tattoos over much of his body.

The State asserts appellant waived his right to appeal most of this evidence.  First, the State asserts appellant failed to timely object to much of the objectionable evidence.  See Tex. R. App. P. 33.1(a)(1)(A); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).  Next, it asserts appellant elicited similar evidence in other testimony and so cannot now object to the evidence=s admission.  See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  Third, it asserts appellant provided no record cites to certain evidence and so forfeited his right to object to the evidence=s admission.  See Tex. R. App. P. 38.1(h); Aldrich v. State, 928 S.W.2d 558, 560 n.2 (Tex. Crim. App. 1996).  Finally, the State argues appellant=s written motions and running objections were ineffective in preserving error for appellate review.  See Gonzales v. State, 994 S.W.2d 170, 171-72 (Tex. Crim. App. 1999).

To preserve error for appellate review the complaining party must make a timely objection specifying the grounds for the objection if the grounds are not apparent from the context, the objection must be made at the earliest possible opportunity, and the complaining party must obtain an adverse ruling.  Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).  The objection will be sufficient to preserve error for appellate review if the objection communicates to the trial judge what the objecting party wants, why the objecting party thinks himself or herself entitled to relief, and does so in a manner clear enough for the judge to understand the objection and request at a time when the trial court is in a position to do something about it.  Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992).  Here, appellant filed a motion in limine, objected at the time the evidence was admitted, and obtained running objections to any evidence that appellant or Brown was a member of a racist gang.  Therefore, appellant preserved error.

Character Evidence

At trial, all relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules.  Tex. R. Evid. 402.  ARelevant evidence@ is defined as evidence having Aany 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.

Gang membership evidence is admissible under Texas Rule of Evidence 404(b) if it is relevant to show a non-character purpose that in turn tends to show commission of the crime.  Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002).  Gang membership may be admissible to show bias, motive, intent, or to refute a defensive theory.  See, e.g., United States v. Sargent, 98 F.3d 325, 328 (7th Cir. 1996); Stern v. State, 922 S.W.2d 282, 287 (Tex. App.CFort Worth 1996, pet. ref=d).

Here, appellant=s defensive theory was that he stabbed the complainants because he was defending Brown, Mary, and himself.  Evidence of Brown=s membership in a racist gang served to rebut appellant=s testimony that he and Brown were attacked by several men without provocation.  Simmons testified that the fight began when someone in Brown=s truck yelled a racial slur as Simmons walked by the truck.  Simmons further testified that he thought Brown and appellant Awere a member of some kind of thing.@ 

Appellant contends the evidence was inadmissible because it tended to show appellant=s guilt by association with Brown.  The cases cited by appellant hold evidence that tends to show guilt by association is inadmissible because it has no bearing on the accused=s guilt or innocence.  See generally United States v. Parada-Talamantes, 32 F.3d 168 (5th Cir. 1994); United States v. Roark, 924 F.2d 1426 (8th Cir. 1991); United States v. Romo, 669 F.2d 285 (5th Cir. 1982); Gant v. State, 513 S.W.2d 52 (Tex. Crim. App. 1974).  The facts of this case, however, make evidence of Brown=s and appellant=s association with a racist gang admissible to rebut appellant=s defensive theories.  Simmons testified that Brown and appellant started the fight by uttering a racial slur.  Appellant testified that Simmons started the fight by blocking their vehicle in the parking lot.  Appellant further testified that he used the knife to defend himself because Brown was being beaten by several men.  Evidence of Brown=s racial bias was admissible to rebut appellant=s theory that Simmons started the fight and that appellant was acting in self-defense.^[2]  See Ortiz v. State, 93 S.W.3d 79, 94 (Tex. Crim. App. 2002), cert. denied, ___ U.S. ___, 71 USLW 3531 (2003).  Because the trial court did not err in admitting the evidence, appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

/s/        Leslie Brock Yates

Justice

Judgment rendered and Majority and Concurring Opinions filed July 17, 2003.

Panel consists of Justices Yates, Anderson, and Frost.(Anderson, J. concurring).

PublishCTex. R. App. P. 47.2(a).

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^[1]  According to testimony offered at trial, Odin is a Norse god whose teachings are followed by some white supremacists.

^[2]  The concurrence states that although appellant received a self-defense instruction at trial, he was not entitled to that instruction; therefore, the State was not entitled to introduce evidence to rebut appellant=s defense.  The concurrence cites a dissenting opinion in Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999), in support of this proposition.  The concurrence cites no other authority, nor can we find any authority, that would allow this court to review admissibility of evidence based on a hypothetically correct charge.