Boswell v. State

• Decision Date: 07 July 2017
• Docket Number: NO. 03-15-00540-CR,03-15-00540-CR
• Parties: Larry Donnell Boswell, Jr., Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Larry Donnell Boswell, Jr., Appellant v. The State of Texas, Appellee

NO. 03-15-00540-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 7, 2017

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 72804, HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Larry Donnell Boswell, Jr., of the offense of capital murder.¹ The district court rendered judgment on the verdict and assessed punishment at life imprisonment without the possibility of parole. In three issues on appeal, Boswell asserts that the district court abused its discretion in admitting evidence of Boswell's gang affiliation and in denying his motion for new trial. We will affirm the judgment of conviction.

BACKGROUND

The jury heard evidence that on the night of July 16, 2012, Ricky Brandon was killed during an armed robbery at a residence in Killeen. The evidence tended to show that Brandon had participated in the robbery and that at some point while the robbery was ongoing, Brandon was shotin the chest by one of his accomplices and was abandoned outside the residence as the other perpetrators escaped. Brandon's body was subsequently found by police.

According to the evidence presented, Boswell, the leader of a street gang known as the Gangster Disciples, had ordered several members of the gang to commit the robbery. This evidence included the testimony of gang members Daniel "D.C." Carruth, who testified that he had participated in the robbery as ordered by Boswell; Paul Sterling, who testified that he had been asked by Boswell to participate in the robbery but refused to do so; and John Bowman, a former officer with the Killeen Police Department who had extensive experience investigating gang-related crimes and who provided detailed testimony connecting Boswell to the Gangster Disciples. Based on this and other evidence, which we discuss in more detail below, Boswell was charged as a party to the robbery that resulted in Brandon's death. The jury found Boswell guilty of capital murder as charged and the district court rendered judgment on the verdict, sentencing Boswell to life imprisonment without the possibility of parole as mandated by statute.² Boswell subsequently filed a motion for new trial, which the district court denied following a hearing. This appeal followed.

ANALYSIS

Admissibility of gang-related evidence

In his first issue, Boswell asserts that the district court abused its discretion in admitting evidence of Boswell's affiliation with the Gangster Disciples. Specifically, Boswellclaims that his gang affiliation was inadmissible character evidence not relevant to any issue in the case or, in the alternative, was more prejudicial than probative.³

We review a district court's evidentiary rulings for abuse of discretion.⁴ We are to view the record "in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or 'outside the zone of reasonable disagreement.'"⁵ "We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case."⁶

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."⁷ "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."⁸ However, such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent,preparation, plan, knowledge, identity, absence of mistake, or lack of accident."⁹ "The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive."¹⁰ "Rule 404(b) is a rule of inclusion rather than exclusion—it excludes only evidence that is offered solely for proving bad character and conduct in conformity with that bad character."¹¹

Similarly, Rule 403 allows for the exclusion of evidence only if its probative value is "substantially outweighed" by the danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence."¹² "Accordingly, 'the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial.'"¹³ Rather, "[t]he rule envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'"¹⁴ In determining whether such a disparity exists, "a trial court, when undertaking a Rule 403analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted."¹⁵ "[T]hese factors may well blend together in practice."¹⁶

We first address Boswell's claim that the gang-affiliation evidence was not relevant. "Gang-membership evidence is admissible under Rule 404(b) . . . if it is relevant to show a non-character purpose that in turn tends to show the commission of the crime."¹⁷ For example, it is well established that "gang affiliation is relevant to show a motive for a gang-related crime."¹⁸Additionally, "it has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum."¹⁹ Thus, in some cases, extraneous-offense evidence may be admissible as "same-transaction contextual evidence," the purpose of which is to "place the instant offense in context."²⁰ "Same-transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury's understanding of the instant offense."²¹ "But, under Rule 404(b), same-transaction contextual evidence is admissible only when the offense would make little or no sense without also bringing in that evidence, and it is admissible 'only to the extent that it is necessary to the jury's understanding of the offense.'"²²

In this case, Boswell was charged under the law of parties, and the district court would not have abused its discretion in finding that in order to prove Boswell's status as a party to the offense, the State needed to present evidence connecting Boswell to the individuals who had committed the robbery. It would not have been outside the zone of reasonable disagreement for the district court to conclude that evidence tending to show that Boswell was the leader of the same gang to which those individuals belonged had at least some tendency to connect Boswell to the offense and thus would be relevant for that reason. Moreover, because Sterling and Carruth provided detailed testimony explaining how the robbery was a gang-related crime, the district court would not have abused its discretion in finding that Boswell's affiliation with the gang that had committed the robbery had at least some tendency to establish: (1) Boswell's motive and intent to commit the offense; (2) Boswell's identity as the person who had ordered the robbery; (3) Boswell's preparation and planning of the robbery; and (4) Boswell's knowledge of the circumstances surrounding the events that occurred before, during, and after the offense, including Brandon's death. As the State explained at the hearing on the admissibility of the gang-related evidence, Boswell's gang affiliation was "part of that plan, part of his preparation, and part of what made him a party to this offense, and in that the evidence will show that he ordered this to take place. . . . In fact, one of the State's first witnesses of this case is a member of the Gangster Disciples. That's how he knows the defendant so identity comes into play as well." The district court would not have abused its discretion inconcluding that the gang-related evidence was admissible for these and other non-character conformity purposes pursuant to Rule 404(b).

Nor would the district court have abused its discretion in finding that Boswell's gang affiliation was admissible as same-transaction contextual evidence. It would not be outside the zone of reasonable disagreement for the district court to conclude that this was a case in which the gang affiliation of Boswell and his associates was an essential aspect of the offense. The State's key witnesses, Daniel Carruth and Paul Sterling, were both members of the gang that had committed the robbery, and, according to their testimony, they had both been ordered by Boswell, who they claimed was the leader of that gang, to participate in the robbery along with other gang members, one of whom was killed during the commission of the offense. Also, Carruth had agreed to participate in the robbery but Sterling had refused, which, the district court could have further found, would make it necessary for the jury to understand the reasons for the witnesses' respective decisions so as to better assess the credibility of their testimony. It would not be outside the zone of reasonable disagreement for the district court to have concluded that the jury would not be able understand these and other circumstances surrounding the offense without the presentation of gang-related evidence that "placed the instant offense in context" by explaining how the witnesses, the victim, the defendant, and other participants in the robbery...