Abdnor v. State

• Decision Date: 26 January 1994
• Docket Number: No. 235-93,235-93
• Citation: 871 S.W.2d 726
• Parties: John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 726

871 S.W.2d 726

John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee.

No. 235-93.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 26, 1994.

Rehearing Denied March 9, 1994.

Ronald L. Goranson, Dallas, for appellant.

John Vance, Dist. Atty., and Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by a jury of murder pursuant to Tex.Penal Code Ann. § 19.02(a)(1). Punishment was assessed at life imprisonment. Penal Code § 12.32(a). The Court of Appeals affirmed appellant's conviction. Abdnor v. State, 756 S.W.2d 815 (Tex.App.--Dallas 1988) (Abdnor I ). On discretionary review, we held the trial judge erred in overruling appellant's objection to the jury charge's failure to include a limiting instruction concerning an extraneous offense. We then remanded to the Court of Appeals for a harm analysis pursuant to Almanza v. State. ¹ Abdnor v. State, 808 S.W.2d 476 (Tex.Cr.App.1991) (Abdnor II ). On remand, the Court of Appeals held there was no harm in the trial judge's failure to include a limiting instruction in the jury charge. Abdnor v. State, 845 S.W.2d 302 (Tex.App.--Dallas 1992) (Abdnor III ). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in conducting its Almanza harm analysis. ² We will reverse.

I.

The trial record reveals appellant, who had a history of drug abuse and mental problems, killed the decedent, a nurse, with whom appellant became romantically involved during his stay in a psychiatric hospital. Appellant shot the decedent with a rifle. Appellant was apprehended in his apartment soon after the shooting by Dallas County deputy sheriffs.

Appellant was charged with murder pursuant to Penal Code § 19.02(a)(1). A competency hearing was held in which a jury found appellant competent to stand trial. Thereafter, appellant's trial commenced, lasting several weeks. Because appellant asserted insanity as a defense, both sides presented several psychological experts during the guilt/innocence portion of the trial. The jury ultimately rejected appellant's claim of insanity and found him guilty of murder.

During the guilt/innocence phase of trial, the State introduced testimony of Bryan Parsons, a friend of appellant whom appellant had met during a stay in a psychiatric hospital. We set out verbatim our factual summary from Abdnor II:

... On direct examination during the guilt/innocence phase, State's witness Bryan Parsons testified that appellant telephoned on July 25, 1980, two days before the alleged offense, and stated that complainant, appellant's girlfriend, had an abortion, and that appellant and complainant had terminated their relationship. During that conversation appellant stated, "That bitch really screwed up this time ... if she walked through that door right now I'd blow her head off. I'd just blow her right up against the wall." Parsons related that conversation to members of the Dallas County District Attorney's Office eight months later in March, 1981.

On cross-examination, defense counsel impeached Parsons with his statement of September 13, 1981, the Sunday before trial began, wherein Parsons stated that he had lied about the March, 1981 conversation. On redirect examination, the State attempted to rehabilitate Parsons. Parsons testified that he recanted his March 1981 statement because he feared appellant. His fear stemmed from two extraneous offenses. First, appellant previously pulled a knife on Parsons. Second, appellant telephoned Parsons' boss and threatened to kill Parsons. Both of these events allegedly occurred in June, 1980, approximately one month prior to the telephone conversation and the alleged offense.

Appellant objected to the admission of the extraneous offenses. Specifically, the record reflects the following:

[Defense Counsel]: What we're objecting to, Your Honor, is the testimony, in effect, brings in extraneous matters and extraneous offenses: to-wit, assault, from the witness, which would be inadmissible for general purposes in this case, in that it would show--it would have a tendency to show that the Defendant is a criminal generally, and it is not really admissible on any issue in the trial.

... [I]t affects the state of mind of the witness, and its prejudice far outweighs any relevance of materiality of the testimony.

Basically, it is an extraneous offense: it's not relevant to the actual issues in this case. The State is only offering it for a limited purpose, and the prejudice outweighs its materiality.

THE COURT: Overruled.

* * * * * *

[Defense Counsel]: And I would also request that, as this testimony comes in, immediately after the witness makes the statements ... the Judge instruct the jury, specifically, that the testimony is admitted only for the purposes of how it affects the credibility of the witness, and it's not to be considered for any purpose whatsoever as to whether or not the Defendant is guilty of the offense charged.

THE COURT: Okay. Denied at this time. I'll take that up when we take up the Charge.

Prior to its submission to the jury, appellant objected to the court's charge for its failure to limit the jury's consideration of the extraneous offenses. Appellant offered several proposed charges for the trial court's consideration.

Abdnor II, 808 S.W.2d at 477-478 (emphasis in original) (footnote omitted). The trial judge, however, denied appellant's proposed charges and did not otherwise limit the jury's consideration of Parsons' testimony. Appellant's timely objection to the jury charge was overruled.

II.

In conducting its harm analysis on remand, the Court of Appeals reviewed both Parsons' testimony concerning appellant's extraneous offenses and the State's comments on Parsons testimony during jury argument. Abdnor III, 845 S.W.2d at 304-308. While agreeing the trial judge erred in not limiting Parsons' testimony concerning the extraneous offenses, the divided court found no harm resulted because:

[n]o emphasis was placed on the extraneous offenses with regard to the issue of sanity. Parsons' testimony about the extraneous offenses presented by the State, to explain Parsons' testimony about the inconsistent statements, covered less than three pages out of his 260 pages of testimony in the 5,600-page statement of facts. No other evidence was presented by the State regarding either the extraneous offenses or the credibility of Parsons.

Abdnor III, 845 S.W.2d at 309.

The court then held:

... We conclude that the context in which the State used Parsons' testimony relating to the extraneous offenses does not permit the testimony, by implication, to be drawn into the larger issue of sanity. The evidence of the offenses was used only to respond to the cross-examination and argument of defense counsel. Further, no expert testimony was elicited by either the prosecution or the defense that would lead to a jury concluding that only a sane person threatens others and then does not carry out the threat.

We conclude that the properly admitted, but erroneously unlimited, evidence of extraneous offenses caused no actual harm to appellant....

Id.

We granted appellant's petition for discretionary review to determine whether in conducting its harm analysis pursuant to Almanza v. State, 686 S.W.2d 157, the Court of Appeals had decided an important issue of state law in conflict with applicable decisions from this Court and because the justices of the Court of Appeals had disagreed upon a material question of law. Tex.R.App.P. Rules 200(c)(3) and (4).

III.

The importance of proper instructions in the trial judge's charge to the jury is apparent in the context of the division of responsibilities between judge and jury in a jury trial. While states have traditionally been given broad leeway in dividing responsibility between judges and juries in criminal cases, Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967), Texas has followed the common law in assigning a fact-finding purpose to the jury. Tex. Const. art. I, § 15 interp. commentary (Vernon 1984). We have consistently held, and our Code of Criminal Procedure explicitly provides, that the "juror's are the exclusive judges of the facts ... [and] of the issues of facts." Ex parte Thomas, 638 S.W.2d 905, 907 (Tex.Cr.App.1982). See also, Penagraph v. State, 623 S.W.2d 341 (Tex.Cr.App.1981); Weatherford v. State, 31 Tex.Crim. 530, 21 S.W. 251 (App.1893); Short v. State, 16 Cr.R. 44 (1879); and Tex.Code Crim.Proc.Ann. art. 26.13.

However, while the "jury is the exclusive judge of the facts, ... it is bound to receive the law from the court and be governed thereby." Tex.Code Crim.Proc.Ann. art. 36.13 (Vernon's 1981). In Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977), we explained "[t]he law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence." ³ See also, Daniels v. State, 633 S.W.2d 899 (Tex.Cr.App.1982); Doyle v. State, 631 S.W.2d 732, 738 (Tex.Cr.App.1982) (Op. on reh'g); Rider v. State, 567 S.W.2d 192, 195 (Tex.Cr.App.1978). The function of the jury charge is to instruct the jury on applying the law to the facts. In Williams, we emphasized

It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those facts.

Id., 547 S.W.2d at 20. See also, Williams v. State, 622 S.W.2d 578, 579 (Tex.Cr.App.1981).

Moreover, because the charge is so essential to the jury's deliberations, "[i]t is clear that a charge must include an accurate statement of the law." Cane v. State, 698 S.W.2d 138 (Te...