Barber v. State

• Decision Date: 04 March 1999
• Docket Number: No. 2-96-403-CR,2-96-403-CR
• Citation: 989 S.W.2d 822
• Parties: Roby Lee BARBER, Jr. aka Roby Lee Barber, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 822

989 S.W.2d 822

Roby Lee BARBER, Jr. aka Roby Lee Barber, Appellant, v. The STATE of Texas, State.

No. 2-96-403-CR.

Court of Appeals of Texas Fort Worth.

March 4, 1999.

Mary B. Thornton, Fort Worth, for appellant.

Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Debra Ann Windsor, Lisa Amos, and Reed O'Connor, Asst. Dist. Attys., Fort Worth, for appellee.

PANEL S: CAYCE, C.J.; DAY, J., and FRANK MALONEY, J. (Sitting by Assignment) ^*

OPINION

FRANK MALONEY, Justice.

Appellant, charged by indictment with the offense of murder, TEX. PENAL CODE ANN. § 19.02(b)(1) and (2), entered a plea of not guilty, was tried and found guilty by a jury of the offense of murder. Appellant pleaded "not true" to the repeat offender allegations in the indictment and the jury, after hearing evidence, assessed punishment at life in the Institutional Division of the Texas Department of Criminal Justice.

Appellant asserts five points on appeal:

Point One: The trial court, over his objection, allowed the State to elicit testimony about an inadmissible extraneous offense;

Point Two: The trial court erred in not allowing him to elicit testimony from State's witness Tracie Harps that the deceased's reputation for being a peaceable and law-abiding citizen was bad;

Point Three: The trial court erred in not allowing him to elicit testimony from defense witness Cassandra Williams that the deceased's reputation for being a peaceable and law-abiding citizen was bad;

Point Four: The trial court erred in allowing, over his objection, the introduction of autopsy photographs;

Point Five: The trial court erred in allowing, over his objection, the introduction of a statement allegedly made by the deceased.

Although appellant does not raise the issue of either legal or factual sufficiency, a brief statement of the facts is necessary in order to discuss the points raised.

The evidence at trial established that about two weeks prior to the killing of deceased, appellant (neighbor of the deceased) and the deceased engaged in an altercation at which time appellant threatened to kill the deceased.

The killing of the deceased occurred after the deceased knocked on appellant's door and apparently interrupted an attempted sexual assault by appellant upon Deborah Mason. Shortly thereafter, Deborah Mason left appellant's house and then engaged in a conversation with the deceased, who at that time was standing in front of appellant's house and who informed her that it was he who had knocked on appellant's door because he had heard appellant "hitting" her. While she and the deceased were carrying on that conversation, appellant came over to the two of them and stated: "you think you are bad for jumping on me ... I don't forget nothing," at which time he began stabbing the deceased with a knife which, according to Deborah Mason, she had seen on top of appellant's television set in appellant's house just prior to the killing. Appellant surrendered to the police the day following the killing and made a statement to them, describing the area where he had thrown the knife that he had used in stabbing the deceased. Although he admitted killing the deceased, he stated that he had acted in self-defense.

The physician who performed the autopsy testified that at least 17 stab wounds were inflicted on the deceased; that he would characterize the attack as an overkill, delivered by one in a frenzy; and that the wounds were not consistent with wounds that would be inflicted by one acting in self-defense.

POINT ONE

Appellant contends that evidence, admitted over his objection, dealing with the attempted sexual assault upon Deborah Mason by appellant constitutes reversible error.

The State contends that such evidence was admissible as same transaction contextual evidence and was also admissible on the issue of motive, i.e., to show his anger over the interruption of his sexual conduct resulting in sexual frustration, and to show appellant's intent and his possession of the murder weapon prior to the time of the murder.

Outside the presence of the jury, a hearing was conducted on the State's proffer of Deborah Mason's testimony to the effect that appellant hit her, made her disrobe, and told her he was going to have oral and anal sex with her.

Specifically, she testified that the appellant:

started hitting me and made me pull off my clothes and .... [h]e had a knife and it was opened on top of his television, ... he told me that he was going to get off, you know, I was going to have to do what he wanted to do and he wanted to have sex in my mouth and have sex in my rear and I asked him not to that--that he could have sex with me if he was going to take it, not, you know, to do it that way.

So he told me he was going to do it the way he wanted to do and he continued to hit me.

The specific objection by appellant's counsel at the hearing was:

I don't have any objection to the facts that she states about what happened outside. I think whatever happened--she claimed whatever happened inside the house is irrelevant and extraneous and not admissible.

....

I just reurge to the Court that some time had passed between that alleged episode and the incident that occurred out on the driveway. I don't think they are related.

The State argued that it was same transaction contextual evidence and that it put the defendant in possession of the murder weapon moments before the murder occurred and also was admissible to show motive. Specifically, "the victim in this case interrupted the [d]efendant in the course of committing a rape and the [d]efendant was angry immediately at him at that time for interrupting. He was angry and perhaps sexually frustrated at that point--moment. That is when he charged out and confronted [the victim]."

The Court found that there was sufficient connection between the two events; therefore, the assault would be considered contextual and a part of the same episode and would show the context in which the ultimate event occurred.

We begin with Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990) (op. on reh'g), cited by both appellant and the State, which establishes critical guidelines in determining the admissibility of extraneous offenses under the Texas Rule of Criminal Evidence, specifically 404(b) ¹ and also explains the appropriate steps an accused must take to preserve error for appellate review.

Montgomery involved a prosecution for indecency with a child. During the trial of that case the State offered evidence to the effect that the defendant frequently appeared nude with an erection in front of his daughters. See id. at 375. The Court of Criminal Appeals initially affirmed the trial court's admission of that evidence. However, on the Court's own motion, the Court ordered the parties to rebrief and reargue the issue dealing with application of Rule 404(b) and the burden of persuasion on the probative value of such evidence being substantially outweighed by the danger of unfair prejudice. The Court also granted rehearing to determine the proper role of an appellate court's review of the trial court's decision, that the evidence does serve a permissible purpose under Rule 404(b), and that the evidence should not be excluded under Rule 403. See id. at 386.

The Court stated:

Illustrative of the permissible "purposes" to which evidence of "crimes, wrongs, or acts" may be put are "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" Extraneous offense evidence that logically serves any of these purposes is "relevant" beyond its tendency "to prove the character of a person to show that he acted in conformity therewith." It is therefore admissible, subject only to the trial court's discretion nevertheless to exclude it "if its probative value is substantially outweighed by the danger of unfair prejudice...." On the other hand, if extraneous offense evidence is not "relevant" apart from supporting an inference of "character conformity," it is absolutely [sic] inadmissable under Rule 404(b).

....

When a party attempts to adduce evidence of "other crimes, wrongs or acts," in order to preserve error on appeal, the opponent of that evidence must object in a timely fashion. Optimally, the opponent should object that such evidence is inadmissable under Rule 404(b). An objection that such evidence is not "relevant," or that it constitutes an "extraneous offense" or "extraneous misconduct," although not as precise as it could be, ought ordinarily to be sufficient under the circumstances to apprise the trial court of the nature of the complaint. Once that complaint is lodged, it is incumbent upon the proponent of the evidence to satisfy the trial court that the "other crime, wrong, or act" has relevance apart from its tendency "to prove character of a person in order to show that he acted in conformity therewith."

Id. at 387 (citations omitted).

Rule 404(b) is neither mutually exclusive nor collectively exhaustive. Cf. Morgan v. State, 692 S.W.2d 877, 879 (Tex.Crim.App.1985); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972).

In reviewing the trial court's decision whether to admit evidence under Rule 404(b), the Court in Montgomery stated that the definition of relevance provided in Rule 401 is necessarily a broad one:

Whether particular evidence meets the definition will not always be cut and dried. Our adversarial system assigns that question to the trial judge, on the assumption that he has the best vantage from which to decide.... The trial court must rely in large part upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has "any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Montgomery, 810 S.W.2d at 391.

The trial...