Russell v. State

• Decision Date: 17 July 2003
• Docket Number: No. 2-01-055-CR.,2-01-055-CR.
• Citation: 113 S.W.3d 530
• Parties: Carlis Jovonite RUSSELL, Appellant, v. The STATE of Texas.
• Court: Texas Court of Appeals

113 S.W.3d 530

Carlis Jovonite RUSSELL, Appellant, v. The STATE of Texas.

No. 2-01-055-CR.

Court of Appeals of Texas, Fort Worth.

July 17, 2003.

Michael Logan Ware and Jack V. Strickland, Fort Worth, for Appellant.

Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A., Chief of the Appellate Division, Michael R. Casillas, Alan Levy, Asst. Crim. D.A's, Fort Worth, for Appellee.

PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. Introduction

A jury convicted Appellant Carlis Jovonite Russell of capital murder and assessed his punishment at life imprisonment. The primary issue we address in this appeal is whether the trial court abused its discretion by admitting testimony and detailed evidence regarding an extraneous offense, the Vogt Street offense, during the State's case-in-chief. The Vogt Street offense was arguably relevant to prove intent, but its prejudicial effect greatly outweighed its probative value. Accordingly, the trial court abused its discretion by admitting the Vogt Street offense during the State's case-in-chief over the defense's Rule 403 objection. See Tex.R. Evid. 403. Because we conclude that the admission of this extraneous offense affected Russell's substantial rights, we reverse the trial court's judgment and remand this case for a new trial.

II. Procedural and Factual Background

On September 3, 1997, Russell and three accomplices committed a robbery at a Fort Worth pool hall known as Fast Freddy's. During the robbery, Russell shot the manager of Fast Freddy's, David Chapa, in the head and killed him. The robbery at Fast Freddy's and the murder of Chapa at Fast Freddy's are collectively referred to herein as the Fast Freddy's offense.

Russell was indicted for the capital murder of Chapa. He pleaded not guilty, and trial commenced before a duly empaneled jury. During its case-in-chief, the State introduced evidence concerning the Fast Freddy's offense, as well as evidence of two extraneous offenses committed by Russell: the S & A offense and the Vogt Street offense. The S & A offense involved the capital murder of Moayad Akhras, a convenience store clerk at the S & A Food Store. The S & A offense occurred approximately ninety minutes before the Fast Freddy's offense. Russell concedes that the S & A offense was a "virtual carbon copy" of the Fast Freddy's offense and was admissible to show identity and intent regarding the capital murder of Chapa. The Vogt Street offense occurred on October 11, 1997, five weeks after the Fast Freddy's offense, and involved the burglary/robbery, sexual assault, attempted murder, and murder of two female victims.

Russell offered no evidence during the guilt-innocence phase of his trial. The jury found Russell guilty of capital murder. Following the punishment phase of the trial, the trial court sentenced Russell to life imprisonment.

III. THE VOGT STREET EXTRANEOUS OFFENSE

In his fifth point, Russell contends that the trial court abused its discretion by admitting evidence of the Vogt Street extraneous offense in violation of Rules 404(b) and 403 of the Texas Rules of Evidence. See Tex.R. Evid. 403, 404(b). In the Vogt Street offense, Russell and three accomplices entered a Fort Worth residence to commit a robbery. One of the accomplices to the Vogt Street offense, Kevin Barnes, participated with Russell in the Fast Freddy's offense and in the S & A offense. During the Vogt Street offense, the robbers repeatedly sexually assaulted two women, forced them to do "nasty stuff" at gunpoint, and eventually shot both of them. One woman was shot five times, but lived; the other woman was shot in the head and died.

Before trial started, the State sought to introduce the Vogt Street offense in conjunction with the S & A Food Store offense and the Fast Freddy's offense in order to show that Russell and Barnes acted together as the shooters in each of these offenses and, therefore, possessed the specific intent to murder Chapa. Russell objected, arguing that under Texas Rule of Evidence 404(b) Russell's alleged participation in a sexual assault, robbery, and murder was not relevant to show his intent in the Chapa murder five weeks earlier, and alternatively, that under Rule 403 the prejudicial effect of the Vogt Street offense outweighed any probative value it had.¹ The trial court overruled Russell's objections and permitted the State to discuss the Vogt Street offense during opening statements.

Later in the trial, the State articulated that it also wanted to introduce specific, detailed facts of the Vogt Street offense through the surviving victim for the purpose of showing identity. The State argued that the Vogt Street offense tended to show identity "[n]ot because it's a signature offense ... but because it shows ... that in each one of these crime scenes it's the same two shooters: Kevin Barnes and Carlis Russell." Russell's counsel again objected, explaining that he did not believe "404(b) contemplates an exception to the general exclusionary rule based upon the association of parties here ... to allow the introduction of all extraneous offenses because somebody's friends with somebody or somebody runs with somebody, I don't believe is supported by the case law and is not contemplated by 404(b)." Russell's counsel also objected that even if the Vogt Street offense was relevant, its probative value was nonetheless greatly outweighed by its prejudicial effect. The trial court again overruled Russell's objections and allowed admission of the details of the Vogt Street offense.

A. Standard of Review for a Determination Under Rule 404(b)

Rule 404(b) embodies the established principle that a defendant is not to be tried for collateral crimes or for being a criminal generally. Tex.R. Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim.App.1992); Booker v. State, 103 S.W.3d 521, 530 (Tex.App.-Fort Worth 2003, pet. filed) (op. on reh'g); Curtis v. State, 89 S.W.3d 163, 170 (Tex.App.-Fort Worth 2002, pet. ref'd). Consequently, extraneous offenses are not admissible at the guilt-innocence phase of trial to prove that a defendant acted in conformity with his character by committing the charged offense. Tex.R. Evid. 404(b); Booker, 103 S.W.3d at 529; Martin v. State, 42 S.W.3d 196, 201 n. 2 (Tex.App.-Fort Worth 2001, pet. ref'd). An extraneous offense, however, has noncharacter-conformity relevance where it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex.R. Evid. 401; Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). That is, extraneous offense evidence that tends to make more or less probable an elemental or evidentiary fact or tends to rebut some defensive theory is relevant beyond its tendency to prove a person's character or that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex.Crim.App. 1991) (op. on reh'g); Johnson v. State, 932 S.W.2d 296, 301 (Tex.App.-Austin 1996, pet. ref'd). Consequently, evidence of other crimes or extraneous misconduct may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. Tex.R. Evid. 404(b); Booker, 103 S.W.3d at 529-30. The State, as the proponent of extraneous offense evidence, bears the burden of showing admissibility. See Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1998) (op. on reh'g).

The trial court's task is to determine whether extraneous offense evidence is relevant for a purpose other than the propensity of the defendant to commit crimes or other bad acts. Booker, 103 S.W.3d at 530. Rulings on relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.), cert. denied, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993); Corley v. State, 987 S.W.2d 615, 618 (Tex.App.-Austin 1999, no pet.). Moreover, appellate courts should give great discretion to the trial courts in matters of relevancy, reversing only if the trial court acts outside "the zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391. A trial court's ruling on admissibility should not be disturbed simply because an appellate judge might decide a question differently than the trial judge. Id. So long as the trial court's decision to admit or exclude evidence falls in the zone within which reasonable minds may differ, appellate courts should refrain from disturbing the trial court's decision on appeal. Id.; Osby v. State, 939 S.W.2d 787, 789 (Tex.App.-Fort Worth 1997, pet. ref'd).

B. Rule 404(b) Relevance Determination

The State asserts that the Vogt Street offense was relevant to the issues of intent and identity in the Fast Freddy's offense. Russell contends, however, that the Vogt Street offense was not relevant; he argues that the State impermissibly utilized the Vogt Street offense to show his character, to show he acted in conformity with that character in murdering Chapa, and to try him as a criminal generally.

1. Intent

In a prosecution for capital murder under penal code section 19.03(a)(2), in order to convict the accused as a primary actor the State must prove and the jury must find that he "intentionally commit[ted] the murder" in the course of the underlying felony. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003); Tucker v. State, 771 S.W.2d 523, 530 (Tex.Crim.App. 1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Barnes v. State, 56 S.W.3d 221, 226 (Tex.App.-Fort Worth 2001, pet. ref'd). Moreover, before the accused may be found criminally responsible for the conduct of another who "intentionally commit[s] the murder" under the law of parties set forth in penal code section 7.02(a)(2), it must be shown the accused harbored a specific "intent to promote or assist the commission of"...