Lam v. State, 04-99-00195-CR

• Decision Date: 19 April 2000
• Docket Number: No. 04-99-00195-CR,04-99-00195-CR
• Parties: (Tex.App.-San Antonio 2000) Pan Fei LAM, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 233

25 S.W.3d 233 (Tex.App.-San Antonio 2000)

Pan Fei LAM, Appellant v. The STATE of Texas, Appellee

No. 04-99-00195-CR

Court of Appeals of Texas, San Antonio.

April 19, 2000.

Rehearing Overruled June 16, 2000.

From the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 98-1164-CR, Honorable Dwight E. Peschel, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Catherine Stone, Justice,Paul W. Green, Justice, Karen Angelini, Justice

OPINION

Opinion by:Catherine Stone, Justice

Pan Fei "Ricky" Lam appeals from convictions for the offenses of murder and aggravated assault with a deadly weapon. On appeal, Ricky brings forward twelve points of error in which he complains about the introduction of extraneous offense evidence, the introduction of an oral statement made to an investigating officer, and jury charge error. Finding no reversible error, we affirm the trial court's judgment.

Facts

The material facts are undisputed. On August 21, 1998, Ricky was staying in a guest room in the home of his father and stepmother, Ling and Lee Lam. Courtney and William, the Lams' eleven year-old daughter and twelve year-old son, also lived at the Lam residence. In celebration of her birthday, Courtney had several friends spending the night at the house; the girls camped out in the living room in front of the television set. Sometime between 11:00 p.m. and 1:00 a.m., Ricky returned home after working at the family's restaurant. Ricky entered the living room, turned on the lights, and asked Courtney if the girls were asleep; they were not. Ricky went to his room. For the next couple of hours, Ricky sporadically popped into the living, turned on the lights, repeating his question of whether the girls were asleep. At one point in the night, the girls went outside on the back porch for fresh air, where they saw Ricky smoking "something that did not smell like a cigarette." A crack pipe and lighter were later found at the crime scene. The girls fell asleep sometime between 2:00 a.m. and 3:00 a.m.

At approximately 3:00 a.m., Jessie Hester, one of Courtney's guests, was awakened by Ricky when he placed one of his hands over her mouth and whispered inaudible remarks into her ear. Hester struggled, kicking the girls sleeping next to her. The other girls were awakened by Hester's struggle. Startled, they began screaming. Ricky was holding a hunting knife with a 3-4 inch blade to Hester's throat.

The Lams were awakened by the girls' screams. Lee entered the living room first. She saw Ricky "trying to pick the girl up . . . to molest her." Ricky unhanded Hester, then he attacked Lee. Lee testified that Ricky came toward her, screamed out an obscenity, and pushed her to the wall. On the ground, Lee saw that Ricky had a knife. She felt a "warm liquid" on the back of her neck, but did not immediately realize she had been cut. Courtney indicated that Ricky "beat [Lee] until she collapsed." During this attack, Courtney's friends were able to escape harm by hiding in Courtney's closet. Courtney called the police. Lee called out to Ling for help. Within moments, Ling entered the room and attempted to pull Ricky away from Lee. A struggled ensued, which ended when Ricky stabbed Ling in the chest, delivering a fatal wound. Ricky dropped his weapon, walked to his room, climbed out the window, and drove away from the house in his truck. Seguin police officers apprehended Ricky the following day.

Ricky was tried for the aggravated assault of Lee and the murder of Ling. At trial, the defense attempted to show that Ricky's actions were not intentional.

Extraneous Offense Evidence

At trial, the State sought, and was permitted over defense counsel's objection, to introduce evidence that investigating police officers found a young girl's bra and panties and a pornographic videotape in the room in which Ricky was staying. Crack cocaine and a crack pipe were also found in that room. The drug evidence was admitted without objection. The State introduced the evidence regarding the adolescent undergarments and videotape during its case-in-chief in an attempt to explain its theory of the events that led to the charged offenses. The State theorized that Ricky sexually aroused himself with the undergarments and videotape, and, after "fortifying" his courage by smoking crack cocaine, he ventured into the living room, grabbing one of the girls, intending to molest her. When Ling interrupted this plan, Ricky lashed out at her verbally and stabbed her in the neck. Lee entered the room, the men struggled, and Ricky stabbed Lee in the chest, fatally wounding him. The State reiterated this theory during its closing argument.

At trial, the State was unable to establish who owned the undergarments. It was never suggested that they belonged to one of Courtney's friends. Rather, it was suggested that Ricky had taken the items, which were given to William as a gag gift, after William had thrown them in the trash. It also appears that the State was unable to affirmatively establish that Ricky was in fact watching the videotape on the night in question. It is not clear from the record whether the videotape was found in a video machine or simply on the floor. The State could only establish that investigating officers found it in Ricky's room.

In points of error one through four, Ricky argues that the trial court erred in admitting evidence of these extraneous bad acts. See Plante v. State, 692 S.W.2d 487, 490 n. 3 (Tex. Crim. App. 1985) (admissibility of extraneous conduct that reflects adversely on character of defendant, regardless of whether that conduct gives rise to criminal liability, is subject to same analysis as extraneous penal offense under Rule 404(b)). Ricky complains that such evidence was not relevant to the State's case because the State failed to prove beyond a reasonable doubt that Ricky had any connection to the undergarments and videotape. Absent proof of this connection, Ricky argues that evidence of those items was not relevant, and was therefore inadmissible. See Tex. R. Evid. 402. Ricky further claims that the evidence was introduced as character evidence in violation of Texas Rule of Evidence 404(b). He contends that the complained-of evidence did not show motive, opportunity, intent, preparation, plan, knowledge,identity, or absence of mistake or accident in relation to the charged offenses, the permissible uses for such type of evidence. See Tex. R. Evid. 404(b). Alternatively, Ricky argues that even if such evidence was admissible pursuant to Rule 404(b), the trial court erred in admitting it because its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Ricky also claims error in the trial court's refusal to instruct the jury that it could not consider the extraneous offenses offered against Ricky unless it believed beyond a reasonable doubt that he committed them. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990).

We review the trial court's ruling under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). The trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts in a manner that is arbitrary or capricious. Id.

The State counters that the trial court did not abuse its discretion in admitting the challenged evidence because it was relevant and properly admitted as "same transaction contextual evidence," an exception to Rule 404(b). See Rogers v. State, 853 S.W.2d 29, 33 & n. 6 (Tex. Crim. App. 1993); Mayes v. State, 816 S.W.2d 79, 84-87 (Tex. Crim. App. 1991). And, because same transaction contextual evidence is not offered as evidence against a defendant within the proscription of Rule 404(b), but rather to explain the circumstances of the offense, a reasonable doubt instruction is not required. The State thus asserts that the trial court did not abuse its discretion in failing to include such an instruction. See Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993); Garza v. State, 2 S.W.3d 331, 335 (Tex. App. San Antonio 1999, pet. denied). We disagree with the State's characterization of this evidence.

"Same transaction contextual evidence" refers to other offenses connected with the primary offense, which is admissible when the evidence is necessary for the State to logically present evidence of the charged offense. Garza, 2 S.W.3d at 335. Crimes do not occur in a vacuum, and the State is entitled to prove the circumstances surrounding the crime even though they may seem like irrelevant details. Id. Extraneous conduct is properly considered "same transaction contextual evidence" only when the charged offense would make little or no sense without also bringing in the extraneous conduct. See Pondexter v. State, 942 S.W.2d 577, 583-85 (Tex. Crim. App. 1996) (emphasis added); Mayes, 816 S.W.2d at 86 n. 4. Stated differently, the conduct must be blended or connected to the act for which the defendant is being tried so that they form an indivisible criminal transaction, such that full proof of one could not be given without showing the other. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995).

At first blush, the State's position is plausible. The events that may have precipitated Ricky's venture into the living room seem material to the tragic events that unfolded in that room to the extent that they potentially explain Ricky's motive for putting a hunting knife to Hester's throat while she slept. Ricky, however, was not on trial for the assault of Hester. He was on trial only for the aggravated assault of Lee and the murder of Ling. We find that both crimes could have been logically presented to the jury, without risk of confusion or ambiguity, and without mention of items that may have "aroused" Ricky before he entered the living room and threatened Hester. Presumably the jury could also clearly understand the...