Mozon v. State

• Decision Date: 28 April 1999
• Docket Number: No. 380-98,380-98
• Parties: Cecola Jean MOZON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 841

991 S.W.2d 841

Cecola Jean MOZON, Appellant, v. The STATE of Texas.

No. 380-98.

Court of Criminal Appeals of Texas.

April 28, 1999.

Walter M. Reaves, Jr., West, for appellant.

Dan V. Dent, Dist. Atty., Hillsboro, Matthew Paul, State's Atty., Austin, for State.

O P I N I O N

HOLLAND, J., delivered the opinion of the Court, in which MEYERS, MANSFIELD, PRICE, WOMACK, and JOHNSON, JJ. joined.

Appellant Cecola Jean Mozon was charged with aggravated assault with a deadly weapon. TEX. PENAL CODE § 22.02 (1998). The jury convicted appellant of aggravated assault and assessed her punishment at five years imprisonment and recommended community supervision. The Tenth Court of Appeals affirmed in an unpublished opinion. Mozon v. State, 10-96-00276-CR (Tex.App.--Waco Dec. 17, 1997).

I.

The undisputed testimony established that on Monday, Sept. 25, 1995, before leaving for Hillsboro High School, appellant purchased thirty cents worth of gasoline. During her lunch break, appellant went to the school cafeteria and sat down at a table. Rodrick Brown, the victim, sat at the table with appellant. After sitting with Brown while he ate his lunch, appellant threw a cup of gasoline on him, lit a piece of paper with a lighter, and tossed the lit paper on him. Brown was taken to the hospital where he was treated for burns on his face, arm, and upper body.

At trial, appellant testified that she was afraid of Brown because he had repeatedly threatened and harassed her. During the two weeks leading up to the instant offense, she claimed Brown would pull her hair and breast and call her vulgar names. On the Friday night prior to the offense, appellant claimed Brown ordered her to take her "dead shirt off" because it was the color of a rival gang and hit her in the back with rocks. Later that night Brown stated he intended to "beat [appellant's] ass Monday morning" and "beat the baby" out of her. ¹ Appellant testified she saw Brown the following day and he again stated he planned to beat "her ass" and "the baby out of her" Monday at school.

Appellant testified she feared Brown and believed he would carry out his threats on Monday. She admitted she did not share her fears with a teacher or a police officer because she believed they would not protect her. Appellant testified she believed she needed to protect herself and her baby from Brown. She testified that she considered using a gun or knife but decided to set Brown's shirt on fire because she "didn't want to hurt him."

Appellant testified that after purchasing the gasoline on Monday morning, she went back to her house where she poured some of the gas into a spray bottle and placed it in her backpack. She put the remaining gas in a baby cup which she put in her front pocket. She then proceeded to school. Appellant claimed when she saw Brown in the hallway, he told her he was "going to show her how tough he was." At lunch, appellant went to the school cafeteria and took her usual seat. Brown took the seat next to her and stated he was going to "show her how tough [he was] when [he] finished eating." Though Brown normally sat at the same table that she did, appellant explained it was unusual for him to sit next to her.

Appellant admitted she had the opportunity to leave the table but chose not to "because [she was] tired of running" from Brown. Appellant also admitted that during lunch Brown was saying things that made her mad and upset. Appellant testified that as Brown ate his lunch she "got the gas out of [her] pocket," put it "between [her] legs," and started "playing with the lighter." She testified she became more frightened when Bo Posey, Brown's friend, got up from their table and walked to the front of the cafeteria as though he were watching for teachers. Appellant testified that she believed Brown's act of pushing his tray aside meant that he was about to carry out his threats and she had to defend herself. Appellant admitted she threw the cup of gasoline on Brown and lit it with a piece of paper. She denied any intent to hurt Brown and claimed she only wanted to "scare him away."

Outside the presence of the jury, appellant sought to testify as to three prior violent incidents involving Brown which she was aware of at the time of instant offense. Specifically, she wanted to testify that she was aware that Brown had put his cousin's eye out; knocked a girl's tooth out during an argument, and hit another student with a board during a fight at school. She maintained this testimony went to the reasonableness of her belief that Brown's furtive act of pushing the tray aside constituted a threat which she believed he was about to carry out. The State objected to admitting this evidence on several grounds. The State maintained the evidence was inadmissible because the issue of self-defense was not raised. Even if self-defense were raised, the State claimed appellant's testimony was not relevant because she could not testify as to whether Brown committed the acts intentionally. The State also objected on grounds that the evidence was vague and remote because appellant could not testify as to the time the acts allegedly occurred. Finally, the State claimed the evidence was irrelevant because it did not justify the use of deadly force. The trial court ruled the evidence was relevant to appellant's claim of self-defense but determined it inadmissible pursuant to Rule 403 of the Texas Rules of Criminal Evidence.

On appeal, citing Gonzales v. State, 838 S.W.2d 848, 862 (Tex.App.Houston [1 st] 1992), pet. dism'd, improvidently granted, 864 S.W.2d 522 (Tex.Crim.App.1993), appellant claimed the trial court abused its discretion because evidence supporting her claim of self-defense could not be excluded under Rule 403. The Tenth Court of Appeals agreed the evidence of Brown's extraneous acts of violence were relevant to appellant's defensive theory. The court, however, declined to find the trial court abused its discretion in subjecting the evidence to Rule 403 or in determining the evidence's probative value was substantially outweighed by "the dangers mentioned in the rule." Mozon, slip op. at 4.

In concluding the trial court's decision to exclude the evidence was not "outside the zone of reasonable disagreement," the Court of Appeals cited the fact that appellant did not know when the extraneous acts occurred and whether they were committed intentionally. Mozon, slip op. at 5. Additionally, the court observed the trial judge admitted evidence of Brown's threats of violence toward appellant through her testimony and the testimony of several other witnesses.

The Court noted there was also other evidence of Brown's violent character through the witnesses' testimony that Brown was in the alternative school and did not have a reputation in the community as a peaceful, law-abiding citizen. Id.

We granted appellant's petition for discretionary review to determine whether evidence which supports a relevant defensive theory is subject to Rule 403 and, if so, whether the trial court's balancing test determination is to be reviewed by the standard set out in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1991) (op. on reh'g).

II.

Appellant claims the Tenth Court of Appeals erred in holding her testimony regarding the victim's extraneous acts of violence could be excluded under Rule 403. ² Appellant contends Rule 403's balancing test does not apply to this evidence because it supports her theory of self-defense, and thus, any prejudice arising from its admission is not "unfair" to the State. Citing the limitations on the admissibility of a victim's character for violence under the common law and now codified in Rule 404(a)(2), appellant claims this evidence is admissible only where the courts have already determined the State suffers no "unfair prejudice." We begin our analysis by addressing appellant's contention that a balancing determination is unnecessary because the common law and Rule 404(a)(2) incorporate Rule 403's concept of prejudice.

The common law on which appellant relies is the Dempsey line of cases. In these cases, we held a defendant could admit evidence of the deceased's character for violence if there was some evidence of an act of aggression by the deceased that raised an issue as to whether the defendant justifiably acted in self-defense. See e.g., Gutierrez v. State, 764 S.W.2d 796, 798 (Tex.Crim.App.1989); Thompson v. State, 659 S.W.2d 649, 653 (Tex.Crim.App.1983); Lowe v. State, 612 S.W.2d 579, 580 (Tex.Crim.App.1981); Dempsey v. State, 159 Tex.Crim. 602, 266 S.W.2d 875, 877 (1954). We recognized two theories for admitting evidence of the deceased's character for violence: (1) to show the defendant reasonably believed the force she used was immediately necessary to protect herself from the deceased; and (2) to show the deceased was the first aggressor. See e.g., Tate v. State, 981 S.W.2d 189, 192 (Tex.Crim.App.1998) (citing Gutierrez, 764 S.W.2d at 798 and Thompson, 659 S.W.2d at 653-54). The relevant theory typically turned on whether a defendant's claim of self-defense rested on a danger that was actual or perceived.

If the defendant's claim rested on a perceived danger, then she could present evidence of the deceased's violent character to show she reasonably believed force was necessary to protect herself from the deceased. Thompson, 659 S.W.2d at 653; Dempsey, 266 S.W.2d at 877. The evidence was admissible because it showed why the defendant considered the deceased's furtive gesture to be a threat of violence. Horbach v. State, 43 Tex. 242, 251 (1875). Because the evidence was intended to show the defendant's state of mind it was relevant only if the defendant was aware of it.

When a defendant's claim, however, was that the deceased was the first aggressor, evidence of the deceased's violent character was relevant to support the inference that the deceased acted in conformity with his character. Thompson, 659 S.W.2d at 653-54; Dempsey, ...