Tate v. State

• Decision Date: 09 December 1998
• Docket Number: No. 185-98,185-98
• Citation: Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998)
• Parties: Christopher Michael TATE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 189

981 S.W.2d 189

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

No. 185-98

Court of Criminal Appeals of Texas En Banc.

Dec. 9, 1998.

James H. Kreimeyer, Belton, for appellant.

James T. Russell, Asst. Dist. Atty., Belton, Matthew Paul, State's Atty., Austin, for State.

OPINION

MANSFIELD, Judge, delivered the opinion of the Court in which BAIRD, OVERSTREET, PRICE, HOLLAND, & WOMACK, Judges, join.

The issue presented is whether Texas Rule of Criminal Evidence 404(b) ¹ allows a defendant to present evidence of a victim's threat against him in order to show that the victim was the aggressor and the defendant acted in self-defense.

The Relevant Facts

On September 11, 1996, a Bell County grand jury indicted appellant, Christopher Michael Tate, for murder under Texas Penal Code § 19.02(b)(2). At appellant's trial, the evidence established that, on August 18, 1996, appellant stabbed his girlfriend's father, Michael Neal Rackley, during an altercation at appellant's home. Rackley died as a result of those wounds. Appellant took the stand in his defense and testified that Rackley was the aggressor in the altercation and that he (i.e., appellant) acted in self-defense. See Tex. Penal Code §§ 9.31(a) & 9.32(a).

To help prove his claim of self-defense, appellant offered the testimony of his aunt, Brenda Turner Glen. She would have testified about a conversation that Rackley had with her a month or two before his death. The substance of the conversation was revealed during voir dire outside the presence of the jury:

DEFENSE COUNSEL: Would it be fair to say you have been around Jessica [appellant's girlfriend], Michael Rackley, and Christopher Tate on many occasions?

GLEN: Yes, sir.

DEFENSE COUNSEL: Were you ever present when Michael Rackley threatened Christopher Tate to either kill him, beat him up, hurt him? Ever present when any of that was said or done?

GLEN: When he made the threats, sir?

DEFENSE COUNSEL: Yes.

GLEN: Yes, sir.

DEFENSE COUNSEL: And what did you hear?

GLEN: Michael Rackley was at my home and they had to come to pick up an infant child that was in my care. I would not let them have the child because they did not have a car seat to carry the child safely from my home in and Michael was aggravated.

He was talking to me and he said that he was getting tired of all the animosity that was in the family. He said he was getting tired of the family's interference. 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. And that was his exact words to me.

* * *

PROSECUTOR: And when was this threat made?

GLEN: The threat was made in the early part of the summer.

PROSECUTOR: Was it made in the presence of this defendant?

GLEN: In front of Christopher ?

PROSECUTOR: Yes.

GLEN: No, sir.

* * *

PROSECUTOR: Judge, we argue that this is inadmissible if it was never communicated to the defendant.

DEFENSE COUNSEL: That shows it wasn't hearsay if it was in her personal knowledge, Your Honor.

PROSECUTOR: Your Honor, a threat in order to get in front of the jury that he was acting under that threat has to be communicated to the object of that threat and this was never communicated to him by this witness' own words.

THE COURT: The objection by the State is sustained. That comment may not be brought up in front of the jury.

DEFENSE COUNSEL: Did I understand the court correctly in saying--- Miss Glen, you never advised this gentleman of this threat?

GLEN: No, sir, not--- to the best of my knowledge, no. There was so many times there was conversations between all of us that---.

DEFENSE COUNSEL: Same kind of threats or maybe not as seemingly serious?

GLEN: A lot of boastful talking is the way I would describe it.

DEFENSE COUNSEL: Okay.

* * *

DEFENSE COUNSEL: ... [U]nder the rules, I think, Mr. Kimball, if you will get I believe that' § 4, the threat does not have to be communicated if it was made whether the man is deceased or not, it would show his intent prior to going over there. Now if he made a statement after that I don't think it would be admissible, so we object to the court's ruling.

PROSECUTOR: Your Honor, with regard to that comment that that was his intent going over there, her testimony was that, was made at the beginning of summer, early in the summer. So we're talking a month or two months before Mr. Rackley was murdered that this occurred and that's so remote in time as to be irrelevant at this point if he had, in fact, made that threat.

THE COURT: The court sustains that objection based on the witness' testimony. The fact that it is not relevant, that it was not communicated to the defendant, per the witness' testimony.

The jury subsequently convicted appellant of murder. The trial court assessed appellant's punishment at imprisonment for sixty years.

On appeal, appellant argued that the trial court had erred in excluding Glen's testimony regarding Rackley's threat. The Third Court of Appeals affirmed appellant's conviction, however, holding that Glen's testimony was properly excluded, although for a different reason than that given by the trial court. Tate v. State, 956 S.W.2d 845 (Tex.App.-Austin 1997). In its analysis, the Court of Appeals reviewed this state's case law on the admissibility of evidence of a homicide victim's character in cases involving claims of self-defense. Id. at 847. Under the Dempsey line of cases, which we will review infra, specific acts of a victim were admissible to establish a defendant's assertion that the victim was the aggressor. Ibid. The Court of Appeals reached the conclusion, however, that Dempsey and its progeny had been superseded by the Texas Rules of Criminal Evidence. Id. at 848. Under the rules, the Court of Appeals determined, character evidence of a victim in a homicide is admissible pursuant to Rule 404(a)(2), ² but the specific act of a threat made by the victim is generally inadmissible because, under most circumstances, ³ character may only be established through reputation or opinion evidence. See Tex.R.Crim. Evid. 405(a). Since the uncommunicated threat was a specific act of the victim, evidence of it was, according to the Court of Appeals, inadmissible, and its exclusion by the trial court was not an abuse of discretion.

We granted appellant's petition for discretionary review to determine whether the Court of Appeals had misconstrued Rules 404 and 405. See Tex.R.App. Proc. 66.3. More specifically, the issue presented for our consideration is whether an uncommunicated threat is admissible under Rule 404(b) for purposes other than to show the victim's character and his conformity therewith. In other words, was Glen's testimony about Rackley's threat admissible to help demonstrate, not that Rackley acted in conformity with his character, but that he had the intent or motive to harm appellant on the night in question?

Analysis

In general, evidence of a person's character may not be used to prove that she behaved in a particular way at a given time. ⁴ This rule exists "despite the fact that, frequently, evidence of a person's disposition will be of obvious probative value with respect to her behavior on an occasion in issue." Goode, et al., Guide to the Texas Rules of Evidence: Civil and Criminal § 405.2 (2nd ed.1993). This general ban on character evidence is not absolute, however. We specifically allow evidence concerning the pertinent character traits of the victim of a crime to be admitted. See Rule 404(a)(2). In this state, the general inclination favoring the admission of evidence concerning the character of a homicide victim has lengthy roots. In a line of pre-rules cases stretching back almost fifty years, we held that, in a homicide case, when there was some evidence of an act on the part of the deceased sufficient to raise an issue as to whether the defendant justifiably caused the death in self-defense, evidence of both the general reputation of the deceased for being of dangerous character, and prior specific acts of violent misconduct, was admissible. See Gutierrez v. State, 764 S.W.2d 796, 798 (Tex.Crim.App.1989); Lowe v. State, 612 S.W.2d 579 (Tex.Crim.App.1981); Beecham v. State, 580 S.W.2d 588 (Tex.Crim.App.1979); Dempsey v. State, 159 Tex.Crim. 602, 266 S.W.2d 875 (Tex.Crim.App.1954). These specific acts could include both actions and statements of the deceased. See Lowe v. State, 612 S.W.2d at 579. This type of evidence was admissible to show either the reasonableness of a defendant's claim of apprehension of danger, or to show who was the aggressor at the time of the killing. Gutierrez v. State, 764 S.W.2d at 798; Thompson v. State, 659 S.W.2d 649, 653 (Tex.Crim.App.1983). If the evidence was offered to show that the deceased was the aggressor, the defendant need not have had knowledge of the acts or statements at the time of the homicide. Lowe v. State, 612 S.W.2d at 581; Beecham v. State, 580 S.W.2d at 590.

We agree with the Court of Appeals that if this case law were applied in the instant case, one would have to conclude that the trial court abused its discretion in excluding the evidence of the victim's uncommunicated threat. We also agree that Rules 404(a) and 405(a) specifically disallow particular acts of the victim to demonstrate character. The Dempsey line of cases stands for the proposition that reputation or specific act evidence is admissible to show a victim's character and demonstrate that either the defendant had a reasonable fear of the victim, or the victim was, in fact, the aggressor. However, this common law rule, as it developed, cannot be reconciled with the specific language of the relevant rules of evidence. While Rule 404(a)(2) allows the admission of evidence concerning a victim's character or pertinent character traits, Rule 405(a) limits the permissible method of proof to reputation or opinion testimony. ⁵ Proving who was...