Tate v. State

• Decision Date: 04 December 1997
• Docket Number: No. 03-97-00240-CR,03-97-00240-CR
• Citation: Tate v. State, 956 S.W.2d 845 (Tex. App. 1997)
• Parties: Christopher Michael TATE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 845

956 S.W.2d 845

Christopher Michael TATE, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00240-CR.

Court of Appeals of Texas Austin.

Dec. 4, 1997.

James H. Kreimeyer, Belton, for Appellant.

Arthur Cappy Eads, District Attorney, James T. Russell, Administrative Assistant, Belton, for State.

Before POWERS, ABOUSSIE and B. A. SMITH, JJ.

BEA ANN SMITH, Justice.

A jury found appellant Christopher Michael Tate guilty of murder. Tex. Penal Code Ann. § 19.02(b)(2) (West 1994). The district court assessed punishment at imprisonment for sixty years. In a single point of error, Tate contends the court erred by excluding evidence that the deceased had threatened to kill him, which evidence he contends was relevant to his claim of self-defense. We conclude that the evidence was properly excluded, although for a reason different from that given by the district court. Accordingly, we will affirm the conviction.

Tate lived with his girlfriend Jessica Windham. The deceased, Michael Neal Rackley, was Windham's father. Windham testified that she and Tate spent the afternoon of August 18, 1996, drinking with friends. When they returned to their mobile home that evening, they began to argue. The argument degenerated into a shoving and wrestling match in the front yard. A neighbor broke up the fight, after which Tate entered the trailer and went to bed. Windham went to the neighbor's house, called Rackley, and asked him to come get her. When Rackley arrived, Windham went inside the trailer to get her things. Tate had taken Windham's purse during their fight and would not return it. Rackley, who could hear Tate and Windham talking as he stood outside the back door of the mobile home, shouted, "Come on, man, just give her her purse." Tate replied, "Come on, old man, do you want some of this?" Rackley, who had also been drinking, ¹ answered, "Come outside and I'll whip your ass." Tate accepted Rackley's invitation and the two men began to fight on the back porch. Windham said, "[T]hey were like pulling and pushing and hitting each other." She got between them and broke up the fight, ordering her father to return to his pickup truck and Tate to return to the bedroom. But as Windham turned to walk away, the fight was renewed. Windham again stopped the fight, this time taking Tate to the bedroom while Rackley remained outside. Windham resumed her search for her purse. When she looked up, she saw Tate with "blood all over his face and it was like all over his chest and his hands." Windham found Rackley lying on the back porch with "blood everywhere."

Tate had stabbed Rackley six times with a throwing knife. Two of the stab wounds penetrated almost seven inches, piercing Rackley's heart, several major arteries, and a lung. These wounds were fatal.

Tate testified that he and Windham fought often. "[E]very time we [Tate and Windham] drank we always got into fights and every time we got into fights she would call her dad and her dad would come over, threaten me, at times he beat me up." Appellant described a previous fist fight with Rackley that had been broken up by Windham. Tate testified that he tried to fight back when Rackley attacked him, but "he was a lot bigger than I was. He overpowered me."

With regard to the night in question, Tate testified that he was awakened by Windham's return to the trailer. He heard Rackley outside, "yelling at me, cussing at me, threatening me." When Tate went to the back door, Rackley "started swinging at me. So I started batting his hands down." After Windham stepped in, Tate went to the bedroom, put on shorts, and armed himself with the knife. When Tate returned to the back door of the trailer, Rackley "drug me down to my knees.... I fell onto my knees inside the door frame and that's when he was hitting me.... I fell forward and that's when I stabbed him the first time." Tate testified, "I just tried to get him off of me. He was being the aggressor." Tate said he remembered stabbing Rackley only three times. Tate testified he armed himself before resuming his confrontation with Rackley because "he was drunk, belligerent and scaring me. He kept threatening my life, telling me he was going to kill me." Tate added, "I was afraid of him. I was scared."

The jury was instructed on the use of deadly force in self-defense. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (West 1994 & Supp.1997). By its verdict, the jury concluded that Tate was not justified in killing Rackley.

Tate contends the district court erred by excluding the testimony of his aunt, Brenda Turner Glen, concerning a threat to kill Tate made by Rackley. By bill of exception, Glen testified, "[Rackley] was talking to me [in early summer 1996] and he said that he was getting tired of all the animosity that was in the family.... He was getting tired of Jessica calling wolf every time something happened and he was getting tired of having to deal with it. And he said it's going to cause me to have to kill the little son of a bitch some day." Glen said that Tate did not hear this remark and, as far as she knew, never learned of it. The State objected that this testimony was inadmissible because the threat was not communicated to Tate. The court sustained the objection saying, "[I]t is not relevant ... [because] it was not communicated to the defendant per the witness's testimony."

Appellant relies on a line of authority stating that in a homicide case in which there is evidence of some act of aggression by the deceased that raises an issue as to whether the defendant justifiably acted in self-defense, the defendant may introduce evidence of the deceased's violent character, as well as evidence of prior acts of violent misconduct (or threats of violence) by the deceased which illustrate his violent character. 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 (App.1954). This testimony is said to be admissible pursuant to one or both of two theories: (1) to support the defendant's claim that he reasonably believed the force he used was immediately necessary to protect himself and (2) to support the defendant's claim that the deceased was the aggressor. Gutierrez, 764 S.W.2d at 798; Thompson, 659 S.W.2d at 653-54; Dempsey, 266 S.W.2d at 877-78; see 1 Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 404.4 (Texas Practice 2d ed.1993) (hereafter "Guide to Texas Rules "); Helen D. Wendorf, David A. Schlueter & Robert R. Barton, Texas Rules of Evidence Manual IV-46 (3d ed.1994) (hereafter "Evidence Manual "). The deceased's violent character is relevant to prove the reasonableness of the defendant's apprehension of danger only if that character was known to the defendant. Thompson, 659 S.W.2d at 653; Dempsey, 266 S.W.2d at 877. But the defendant need not be aware of the deceased's violent character if the evidence is offered to prove that the deceased was the aggressor. Thompson, 659 S.W.2d at 653-54; Dempsey, 266 S.W.2d at 877-78. In the latter situation, the deceased's violent character is relevant to support the inference that he acted in conformity with his character; that is, was the aggressor as the defendant claims. Guide to Texas Rules § 404.4.

Rackley's remark that he might "have to kill the little son of a bitch" was not relevant to show the reasonableness of Tate's claimed apprehension of danger because the remark had not been communicated to him. But Tate correctly argues that it was unnecessary for him to have been aware of Rackley's remark for it to be relevant to his claim that Rackley was the aggressor in the fatal encounter. See Lowe, 612 S.W.2d at 580 (evidence deceased told witness "he always knew that one of these days he would have to be the one to kill" defendant was admissible to show deceased was aggressor). The State contends Tate did not clearly articulate this theory of admissibility in the district court. We disagree. After the State objected that Rackley's remark had not been communicated to Tate, defense counsel argued, "[T]he...