Morrow v. State

• Decision Date: 23 July 1987
• Docket Number: No. C14-84-833-CR,C14-84-833-CR
• Citation: 735 S.W.2d 907
• Parties: Thomas Clayland MORROW, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 907

735 S.W.2d 907

Thomas Clayland MORROW, Appellant, v. The STATE of Texas, Appellee.

No. C14-84-833-CR.

Court of Appeals of Texas Houston (14th Dist.).

July 23, 1987.

Patrick Gailey and Donald W. Rogers, Jr., Houston, for appellant.

John B. Holmes, Jr., David E. Brothers and J. Sidney Crowley, Houston, for appellee.

Before JUNELL, DRAUGHN and ELLIS, JJ.

OPINION

DRAUGHN, Justice.

Appellant Thomas Clayland Morrow was charged with the murder of Ralph Brandes but was convicted by a jury of the lesser included offense of voluntary manslaughter. The court found appellant's conviction was enhanced by two prior felony convictions and sentenced him to sixty years confinement. In his single point of error, appellant argues that the trial court erred by allowing the State to introduce evidence of an extraneous offense, which he allegedly committed one week after the primary offense. We affirm.

Although sufficiency of the evidence is not an issue, a limited rendition of the facts and evidence is necessary for clarity in this case. The facts are somewhat disputed by appellant, but essentially they reflect that appellant shot Ralph Brandes to death in a Houston lounge, the B & C Drive-In. Appellant and a companion, witness Tommy Carroll, were in the lounge drinking for some time when Brandes arrived at the lounge, ordered a beer, and went to the restroom. When he returned to finish his beer, appellant Morrow shot Brandes who then jumped over the bar. According to a witness, appellant came around the bar to Brandes, who was now on his knees, with his arms wrapped around Tommy Carroll's legs, pleading with appellant not to shoot him again. Appellant fired two more shots into Brandes hitting him in the chest and head. Brandes was shot a total of six times. No words were exchanged between appellant and the deceased immediately prior to the shooting, but the evidence reflects that several weeks before there had been some verbal exchanges between them described as "ribbing" about sexual matters directed at appellant by Brandes.

Appellant's version of the facts was considerably different from that of the other witnesses. Appellant essentially testified that he acted in self-defense. He stated that some weeks prior to the shooting he and Brandes had engaged in several heated arguments and, on the occasion of the offense, he thought Brandes had a gun because George Hayes, the lounge owner, had placed a cocked and loaded pistol on appellant's table and told him that the decedent had a gun in his hand. Appellant stated that he noticed that the decedent, who was still seated at the bar, had his hand by his leg. According to appellant, the decedent started to move and appellant placed his hand on the loaded pistol in front of him. Then the decedent jumped off the bar stool and appellant shot him. The decedent leaped over the bar, after which appellant left his table, ran around the end of the bar, and shot the decedent several times. Appellant testified that he shot the decedent again because the decedent was running toward him. Appellant stated he did not know how many times he shot the decedent. He alleged that George Hayes, the owner of the lounge, fired the last shot into Brandes' body. After shooting the decedent, appellant returned to his table and sat there for a minute. At trial appellant explained his actions as follows: "It was either kill or be killed ... I had no intentions of killing Ralph Brandes."

As rebuttal to appellant's theory of self-defense and lack of intent, the State introduced, over appellant's objection, evidence of an extraneous offense committed one week after the Brandes shooting but prior to appellant's arrest in this case. Witness David Watts testified that he had been shot without provocation by appellant. He testified that he, Tommy Carroll, and appellant had been drinking beer and driving around in Carroll's car. At Watts' request, Carroll stopped the car so that Watts could "use the restroom." While Watts was about to do so by the roadside, appellant shot him in the back. Though wounded, Watts ran from the scene, obtained help, and was taken by ambulance to a local hospital for surgery where he remained for three weeks. Tommy Carroll partially corroborated Watts' version of the incident by testifying that he heard the shot and saw Watts running, but did not know that Watts had been hit. He testified that he and appellant had been drinking prior to the shooting and that appellant did not know Watts prior to that occasion. Appellant offered no explanation about the shooting of Carroll at the time, nor did he testify regarding it.

The general appellate issue in this case is clear: Did the trial court abuse its discretion in allowing the State to introduce evidence of an extraneous offense to rebut appellant's theory of self-defense and lack of intent? To answer and further refine this issue, we must again enter what has been referred to as "the murky waters of extraneous offenses." See e.g., Boutwell v. State, 719 S.W.2d 164, 186 (Tex.Crim.App.1985) (Teague, J., concurring opinion); Robinson v. State, 701 S.W.2d 895, 901 (Tex.Crim.App.1985) (Clinton, J., opinion joining in judgment of the court). No clear-cut general rule has been fashioned to guide the trial and appellate courts concerning admission of extraneous offenses in all cases.

We can, however, begin with a general rule that is well-anchored in our jurisprudence. Evidence of an extraneous offense is not admissible to prove the guilt of the defendant. Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, 837 (App.1953). The reason for this general rule is basic: A defendant is entitled to be tried for the offense with which he is specifically charged; and when the State seeks admission of an extraneous offense, it is inherently prejudicial because the defendant has no notice that he will be required to defend against a collateral matter. The defendant is not on trial for his propensity to commit crimes in general because that is not material as to whether he is guilty of the specific offense with which he is charged. Templin v. State, 711 S.W.2d 30, 32 (Tex.Crim.App.1986) (en banc); Elkins v. State, 647 S.W.2d 633 (Tex.Crim.App.1983).

This general rule of inadmissibility presents no real problem. Rather it is the exceptions that have created considerable confusion. The courts have recognized several exceptions to the general prohibition against admitting extraneous offenses. For example, extraneous offenses have been admitted to (1) show the context in which the criminal act occurred, (2) circumstantially prove identity, (3) prove scienter, (4) prove malice or state of mind, (5) show the accused's motive, and (6) refute a defensive theory raised by the accused. Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex.Cr.App.1972). This list caused much confusion because it was interpreted as being all-inclusive, and it became something of a litmus test to determine admissibility of extraneous offenses. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). We now know that the list is not exhaustive and that it is not the "true" test to determine whether an extraneous offense is admissible under an exception to the general rule. The "true" test of admissibility consists of two steps: First, the court must determine that the extraneous offense evidence is relevant to a material issue in the case other than the defendant's character. Second, the probative value of the evidence must outweigh its inflammatory or prejudicial effect. Plante v. State, 692 S.W.2d 487, 491 (Tex.Crim.App.1985); Williams, 662 S.W.2d at 346. As with most tests, applying it neatly to varied fact situations is difficult. We must avoid rote application of this test. Every case must be examined on its own facts, strengths, and weaknesses to determine whether the extraneous transaction is relevant to a material issue, and whether the relevancy value outweighs the prejudicial potential. Boutwell, 719 S.W.2d at 174. To assist us in this examination, various guidelines have evolved from past cases. We will now apply the "true" test to the facts of this case along with some of these guidelines.

The first part of the test requires that the extraneous offense, in order to be admissible, must be relevant to a material issue in the case other than appellant's character. Among such material issues is the question of the appellant's intent, motive, or state of mind. Here, this became material because defendant raised the issue of self-defense when he testified he did not intend to kill Ralph Brandes, and that "it was either kill or be killed." It is clear that appellant is raising the issues of his lack of intent and self-defense. It is equally clear that an extraneous offense may be admissible to refute such defensive theories raised by the accused. Albrecht, 486 S.W.2d at 101.

The State's prima facie case reflected an unprovoked shooting which resulted in the victim's death. As stated, appellant raised the issue of self-defense and lack of intent. The State then, in rebuttal, introduced evidence it considered relevant to show that one week later appellant shot another man also without provocation. We find that the first prong of the true test was met, that the extraneous offense was relevant to material issues in the case: the appellant's intent to kill and his theory of self-defense. These two grounds for admission, intent (or lack thereof) to kill and refutation of appellant's self-defense theory, become somewhat mingled because self-defense gives rise to the question of motive or state of mind. See Lolmaugh v. State, 514 S.W.2d 758, 759 (Tex.Crim.App.1974); Fielder v. State, 683 S.W.2d 565, 575 (Tex.App.--Fort Worth 1985, pet. granted).

We now move to the second prong of the test, which is the more difficult to determine in extraneous offense cases. Did the probative value of the extraneous offense outweigh its prejudicial effect? No easy method has been devised...