Johnson v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before CARROLL; JOHN F. ONION, Jr.
• Citation: Johnson v. State, 932 S.W.2d 296 (Tex. App. 1996)
• Decision Date: 16 October 1996
• Docket Number: No. 03-94-00693-CR,03-94-00693-CR
• Petition History: writ ref'd
• Parties: Duane JOHNSON, Appellant, v. The STATE of Texas, Appellee.

Page 296

932 S.W.2d 296

Duane JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 03-94-00693-CR.

Court of Appeals of Texas Austin.

Oct. 16, 1996.

Robert Icenhauer-Ramirez, Linda Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for Appellant.

Ronald Earle, District Attorney, C. Bryan Case, Jr., Assistant District Attorney, Austin, for State.

Before CARROLL, C.J., and KIDD and JOHN F. ONION, Jr., JJ. ^*

JOHN F. ONION, Jr., Justice.

This appeal is taken from a conviction for capital murder. Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). ¹ After the jury found appellant Duane Johnson guilty, the trial court assessed punishment at life imprisonment as the State did not seek the death penalty. See Tex.Code Crim. Proc. Ann. art. 37.07, § 1 (West Supp.1996).

Appellant advances two points of error concerning the admission of an extraneous offense into evidence at the guilt/innocence stage of the trial. First, appellant urges that the trial court abused its discretion in finding the extraneous offense was relevant to the contested issue of intent under Rule 404(b) of the Texas Rules of Criminal Evidence. Second, appellant contends that the trial court abused its discretion in overruling his objection to the admission of the extraneous offense based on Rule 403 of the Texas Rules of Criminal Evidence and finding that its probative value was not substantially outweighed by the danger of unfair prejudice.

The sufficiency of the evidence is not challenged. In the early morning of July 10, 1993, an individual living near the intersection of Dessau Road and Yager Lane in Travis County called 911 to report an apparent automobile accident. The lifeless body of Mark Long, age 31, was found in his 1966 Pontiac convertible. EMS personnel were unable to revive him. The autopsy revealed that the cause of death was a gunshot wound at the nape of neck, which injured the spinal column and cord, and in the opinion of the medical examiner, caused instantaneous death. A fragmented .22 caliber bullet was recovered from the body. The record reflected that Long was in Austin to visit his natural mother whom he had not seen since he was five years old.

An informer's tip led the peace officers to appellant who gave an extrajudicial written confession and led the officers to the .22 caliber Beretta pistol that he had used. Ballistics tests revealed that the bullet recovered from Long's body had been fired from the recovered weapon. The State introduced a redacted version of appellant's confession. ² The confession reflected that the "day before we killed the dude in the convertible," appellant was with Antonio Wilkins, Patrick Greg Chatham, Seaton Salazar, and Ramont Taylor. They drove around most of the day in Greg's Cadillac automobile, and while driving "we were talking about how we needed money. We decided we were going to jack a car and rob someone." About 1:00 a.m. on Saturday morning, on the outskirts of Austin, they found a location suitable for their needs at the intersection of Dessau Road and Yager Lane where road construction was apparently taking place. The confession reveals the group moved some construction barricades to block the road and then placed a stop sign in the middle of the road. Appellant, Wilkins, and Salazar hid in the bushes nearby. Salazar had a BB gun, Wilkins had a shotgun, and appellant had a .22 caliber pistol. Greg Chatham and Ramont Taylor waited in the Cadillac nearby for the threesome to complete their task.

Within minutes, according to the confession, a light-colored convertible driven by a white male about thirty years of age approached the barricades and stopped. Appellant went to the left rear of the car and the other two men went to the sides of the vehicle. Salazar demanded that the driver get out of the car. The driver put the convertible in reverse and began to back up. At this point, appellant confessed that he shot at the driver and saw the "guy go down." The convertible hit a curb with a loud bang and turned in the opposite direction. Appellant stated that he and his two accomplices ran to Greg Chatham's Cadillac. They drove back to the convertible but left immediately because of oncoming traffic. Appellant learned from "the news" that the driver was dead. Appellant later learned that Wilkins had fired his shotgun at the same time appellant fired the pistol, but understood that Wilkins had aimed at the car.

The pertinent portion of the extrajudicial confession relating to the redacted portion provided:

... The car started to back off and it was about fifteen to twenty feet away when I shot at the driver. The guy was looking right at me when I shot. I only fired once and the guy went down. The guy still had his hands on the wheel and the car started moving faster in reverse. _____ [redacted portion # 1]

I've been thinking this everyday and since it's happened. I had read about how the guy that I killed came to Austin to see his mother. When I read this my eyes almost teared up. _____ [redacted portion # 2] My intent was to take the guy's wallet. I don't know if Seaton or Tony planned on stealing his car.

Immediately after the State introduced the redacted statement, appellant introduced the entire original statement. See Tex.R.Crim. Evid. 106, 107. This exhibit included the redacted portions as follows:

Redacted portion # 1--I didn't think that I hit him because I was aiming at the door.

Redacted portion # 2--I didn't mean to kill the guy in the convertible.

During the presentation of defense testimony, appellant called a Texas Department of Public Safety ballistics expert, William Sorrow, who had examined and test-fired the .22 caliber weapon that had inflicted the fatal wound. Sorrow testified that approximately an inch had been cut off the barrel of the pistol in question, that at a distance of fifteen feet the pistol shot three to five inches above the point of aim, and at a distance of twenty feet the pistol shot five to seven inches higher than the point of aim. Sorrow acknowledged that the pistol was a firearm and was a deadly weapon.

After both sides rested, the State, in rebuttal, called Aimee Reye to testify about an earlier extraneous offense on the basis that the issue of intent was now contested. Appellant first objected on the basis of Rule 404(b), and when that objection was overruled, he objected on the basis of Rule 403. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (op. on reh'g). The latter objection was also overruled and Reye was permitted to testify in rebuttal. ³

Reye testified that, approximately two weeks prior to June 26, 1996, she was present with her boyfriend, Stephen Moreno, at appellant's house when appellant and Moreno got into a fight over a necklace that appellant was wearing which Moreno claimed belonged to Moreno's brother. After the police left the scene, appellant told Moreno that he "was going to get shot" and told Reye that if she was with Moreno she would "get shot, too." Reye revealed that in the early morning hours of June 26, 1993, she and Moreno were driving home from a movie, when a car approached from the opposite direction. Reye saw appellant rise up out of the passenger side window of the other car, aim a pistol at them over the top of the other car and begin to fire. She also saw "Tony" Wilkins aim a shotgun out of the back window of the other car and began firing. Moreno was hit in the arm with buckshot. Reye related that she and Moreno were chased but were able to elude the other car and to flag down a patrolling policeman. Later, Reye found pistol bullets in the exterior of her car and in the dash of her vehicle.

In turn, appellant called one of the prosecutors in the instant case, Frank Bryan, to testify before the jury. Bryan stated that appellant had been indicted on December 10, 1993, for aggravated assault growing out of the incident involving Aimee Reye and Stephen Moreno. Bryan related that the indictment alleged in the first count that appellant "knowingly or intentionally threatened imminent bodily injury," and in the second count that appellant "knowingly or intentionally cause[d] bodily injury to Stephen Moreno," and that the indictment did not allege appellant had the intent to kill Moreno. Bryan also testified that the pending case was now being reconsidered, however, as an attempted murder case. He explained there had been no urgency concerning the pending case in view of the pendency and trial of the instant capital murder case. We do not find that after Bryan's testimony appellant asked for any relief or further objected to the evidence of the extraneous offense already admitted.

After both sides rested and closed at the guilt/innocence stage of the trial, the trial court submitted an instruction limiting the jury's consideration of the extraneous offense, if any, to the issue of intent and required the jury to first find beyond a reasonable doubt that appellant committed the extraneous offense.

With this background, we examine appellant's contentions on appeal. Evidence is relevant if it has "any 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.Crim. Evid. 401; Keller v. State, 818 S.W.2d 425, 428-29 (Tex.App.--Houston [1st Dist.] 1991, pet ref'd). All relevant evidence is admissible except as otherwise provided by constitutions, statutes, or rules prescribed by statutory authority. Tex.R.Crim. Evid. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, etc. Tex.R.Crim. Evid. 403. Rule 403 favors the admissibility of relevant evidence. The presumption is that relevant evidence will be more probative than prejudicial, and in close cases, trial courts shall favor admission in keeping with this presumption. Montgomery, 810 S.W.2d at 377, 378...