Hilliard v. State, 2-93-223-CR

• Decision Date: 24 August 1994
• Docket Number: No. 2-93-223-CR,2-93-223-CR
• Parties: Danny HILLIARD, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 917

881 S.W.2d 917

Danny HILLIARD, Appellant, v. The STATE of Texas, State.

No. 2-93-223-CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 24, 1994.

J.E. Brownlee, Denton, for appellant.

Bruce Isaacks, Crim. Dist. Atty., Kathleen A. Walsh, Nancy Jessee, and Paul Johnson, Asst. Dist. Attys., Denton, for appellee.

Before FARRIS, DAY and HICKS, JJ.

OPINION

FARRIS, Justice.

Danny Hilliard appeals a conviction for retaliation under TEX.PENAL CODE ANN. § 36.06 (Vernon 1989). He was sentenced by a jury to eight years' confinement. On appeal, he claims the trial court erred in the following: (1) permitting the introduction of extraneous offense evidence not relevant to any issue at trial; (2) permitting the introduction of photographs when their prejudicial potential outweighed any probative value; (3) permitting the State to ask an irrelevant and inflammatory question of appellant during cross-examination concerning a prior extraneous offense; and (4) limiting defense counsel's tender of evidence offered to rebut the extraneous offense evidence introduced by the State. Hilliard also claims the court abused its discretion in improperly restricting his cross-examination of the complaining witness and two of the State's witnesses.

Finding the trial court did abuse its discretion, we reverse and remand the cause for a new trial.

On March 6, 1992, Hilliard and his former girlfriend, Nicholle Trent, were alone together in his home. While there, he allegedly assaulted her. Trent filed charges against Hilliard and on March 9, he was arrested at his place of employment. Upon his release from jail, Hilliard allegedly called Trent and threatened to kill her if she did not drop the assault charge. Trent called the police and Hilliard was again arrested at his place of employment on the retaliation charge.

Hilliard's first and second points of error concern the introduction of fourteen photographs taken of the complaining witness, Trent, after the appellant allegedly assaulted her. They rather gruesomely depict Trent with two black eyes, several bruises, and scratches. Hilliard claims the court erred in admitting these because they were evidence of an extraneous offense not relevant to any issue at trial, and because their prejudicial potential outweighed any probative value. The correct standard of review is whether the trial court abused its discretion in determining this evidence was relevant and in determining its probative value was not substantially outweighed by the danger of unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1990). Further, upon such a finding, this court must then determine beyond a reasonable doubt whether this error did not contribute to Hilliard's conviction or punishment. See TEX.R.APP.P. 81(b)(2).

It is the general rule that "evidence of prior criminal conduct that is collateral to the charge on which the defendant is being tried is inadmissible." Maynard v. State, 685 S.W.2d 60, 66 (Tex.Crim.App.1985). This is so that the defendant will be tried for the offense charged and none other. Alvarez v. State, 511 S.W.2d 493, 494 (Tex.Crim.App.1973). The relevant facts in this case were: (a) whether the complainant reported an assault allegedly committed by Hilliard; and (b) whether Hilliard threatened her as a result of her making that report. The photographs showed the complainant had suffered an assault, but they were not relevant in that they did not have the tendency to make the existence of the facts of consequence to the determination of the action any more or less probable than they would be without the photographs. See TEX.R.CRIM.EVID. 401. It was, therefore, an abuse of discretion for the court to allow the photographs into evidence and we must now determine if Hilliard was harmed by the error.

Later in the proceedings, Hilliard did himself testify as to the occurrence of the alleged assault. While in some cases this might cure any harm, we hold that in this case, the doctrine of curative admissibility is not applicable. See Maynard, 685 S.W.2d at 65. When Hilliard testified, he sought to explain the assault, claiming the complainant attacked him and that he responded in self-defense. He also claimed she received some of her injuries when she jumped from his moving truck onto the road and a ditch below. The harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, explain, contradict or refute such evidence by the introduction of rebutting evidence. Id. at 65-66. The photographs were of an extraneous offense, not tied to the elements of the case, but useful only to show the possible character of Hilliard. Id. at 66. Admission of the evidence of this alleged offense was inherently prejudicial. See id.; Murphy v. State, 777 S.W.2d 44, 48 (Tex.Crim.App.1988). This is not only true generally, but as evident by the record which reveals that the vast majority of the testimony elicited by both the State and defense concerned the underlying offense rather than the one for which Hilliard was being tried. Even the jury charge instructed the panel that they could consider the testimony of the extraneous offense in determining impeachment, if they found beyond a reasonable doubt that the defendant committed such other offense. Certainly, this admission of the unadjudicated extraneous offense evidence did result in a confusion of the issues for the jury and harm for the appellant. Points one and two are sustained.

In his third point, Hilliard claims the court erred in permitting the State to ask an irrelevant and inflammatory question of him concerning a prior extraneous offense. The question was asked on cross-examination during the punishment phase of the trial. The prosecutor showed Hilliard the photos of the complainant admitted into evidence during the guilt/innocence phase of the trial and asked:

[PROSECUTOR]: You feel like this--these exhibits, these photographs right here represent the work of a useful and productive member of society?

[HILLIARD]: I believe that pertains to another case.

[PROSECUTOR]: Well, what society do you believe that a person would have to belong to to be considered useful and productive and do something like that?

Hilliard's counsel objected on the grounds of relevance, was overruled, and the same line of questioning continued. His counsel again objected on grounds of relevancy and that these questions were argumentative and amounted to badgering the witness. He was again overruled and the same line of questioning continued as follows:

[PROSECUTOR]: What kind of society do you feel like you would belong to in order to be considered useful and productive to do something--to threaten to kill somebody if they came to court and testified or if they pressed charges against you for doing something like that? What kind of society would that be that you would belong to?

[HILLIARD]: I can't answer that question.

[PROSECUTOR]: It's a society of criminals in the Texas Department of Corrections, isn't it, Mr. Hilliard?

The scope of cross-examination is within the control of the trial judge in the exercise of his sound discretion. Arnold v. State, 679 S.W.2d 156, 160 (Tex.App.--Dallas 1984, pet. ref'd). When the defendant voluntarily takes the stand and testifies in his own behalf, he is subject to the same rules of cross-examination as any other witness. Guzmon v. State, 697 S.W.2d 404, 408 (Tex.Crim.App.1985). He may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness testifying in behalf of the defendant, except when there are overriding constitutional or statutory prohibitions. Id. The determination of whether the evidence elicited by the questions on cross-examination is admissible is a determination of the relevancy of the evidence. Posey v. State, 738 S.W.2d 321, 325 (Tex.App.--Dallas 1987, pet. ref'd). The trial court's determination of relevancy will only be reversed for an abuse of discretion. Id.

During direct examination, Hilliard had requested that the jury give him probation. As a result of that request, he put his character into issue. See Murphy, 777 S.W.2d at 46. However, the questions asked by the prosecutor, using the improperly admitted photographs, focused on the underlying, unadjudicated extraneous offense. The jury had already convicted Hilliard of retaliation after hearing testimony from the complainant that he threatened to kill her. Then once again, the jury's attention was drawn to this alleged underlying violent act and the prosecutor's assertion that anyone who did such a thing, regardless of the circumstances, belonged in prison. We find the prosecutor's line of questioning was error and we cannot conclude beyond a reasonable doubt that this error did not contribute to Hilliard's punishment. Id. at 49-50. Point of error three is sustained.

Points five, six, and seven...