Umoja v. State

• Decision Date: 16 October 1997
• Docket Number: No. 2-96-236-CR,2-96-236-CR
• Citation: 965 S.W.2d 3
• Parties: Emoshie S. UMOJA, aka Emo S. Umoja, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 3

965 S.W.2d 3

Emoshie S. UMOJA, aka Emo S. Umoja, Appellant, v. The STATE of Texas, State.

No. 2-96-236-CR.

Court of Appeals of Texas Fort Worth.

Oct. 16, 1997.

Opinion GrantingRehearing April 16, 1998.

Allan K. Butcher, Allan K. Butcher, Jr., Law Offices of Allan K. Butcher, Fort Worth, for Appellant.

Tim Curry, Crim. Dist. Attorney, Charles M. Mallin, Chief of Appellant Sec., Edward L. Wilkinson, Jamie Cummings, Martin Purselley, Assistant Criminal District attorneys, Fort Worth, for Appellee.

Before CHARLES F. CAMPBELL (Sitting by Assignment), DAY and LIVINGSTON, JJ.

OPINION

PER CURIAM.

Appellant was convicted by a jury of the offense of murder. At appellant's option, the trial court assessed punishment at thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises seven points on appeal. We will abate this cause to the trial court for a hearing on the issue of whether the judgment should be corrected nunc pro tunc.

Because appellant challenges the factual sufficiency ¹ of the evidence, a brief recitation of the facts is in order. The record reflects that on September 12, 1994, appellant, along with about fifteen other young men and women gathered for a party at a house. Among the partygoers were Jose Martinez, Dejuan Allen, Tracey and Robert McCoy, Tony Lopez, Edwon Tubbs and appellant. The group, including appellant, was drinking heavily and making trips to a nearby convenience store to buy alcoholic beverages. Outside the convenience store Martinez, Lopez, and Tubbs encountered the victim, a homeless man. For reasons unclear from the record, the three began to beat the victim with their fists. They continued to beat and kick the victim as he lay unconscious on the ground. They drug the victim behind a restaurant, where they were joined by appellant. Appellant joined in the assault, striking the victim with his fist and feet. Tubbs slammed a concrete brick on the victim's head. Appellant then took up further assault on the victim, until his friends finally restrained him.

An autopsy conducted on the victim revealed that his wounds were consistent with having been struck with a fist or kicked with feet. The wound caused by the brick was the most serious, but no single wound caused the victim's death. According to the medical examiner, each of the head wounds was a factor contributing to the victim's death.

Appellant's Argument

In his second point, appellant challenges the factual sufficiency of the evidence. Appellant essentially argues that if this court finds that appellant joined the attack on the victim before Tubbs hit the victim with the brick, then appellant only caused superficial wounds rather than death. However, appellant argues, if he struck the victim after Tubbs hit the victim with the brick, then appellant would, at most, be guilty of abuse of a corpse.

Standard of Review

In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), the Court of Criminal Appeals held that in considering the factual sufficiency question, an appellate court should review the factfinders' weighing of the evidence and may disagree with the factfinders' determination, but the appellate court must not substitute its judgment for that of the trier of fact. Id. at 133. In a factual sufficiency review, the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We should find factual insufficiency only where we can "clearly state why the jury's finding is so factually insufficient as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias." Id. at 135.

Application of Law to Facts

In this case, all but one witness testified that they saw appellant strike or kick the victim as he lay on the ground. The only witness who did not testify that he saw appellant strike the victim admitted that he did not go down the alley where the victim lay and was unaware of appellant's role at that time. The medical examiner testified that each of the victim's head and face wounds was a contributing factor to his death. He further testified that each of the wounds was inflicted while the victim was alive. The mere fact that appellant did not inflict the most damaging blow to the victim does not relieve him of responsibility for the victim's murder. Under this evidence, we cannot find that the verdict is so contrary to its overwhelming weight as to be clearly wrong or unjust. We find the evidence to be factually sufficient. Appellant's second point is overruled.

Rule 404(b)

In his first point, appellant avers that the trial court erred in admitting testimony, during the State's direct evidence on guilt, that appellant had committed a prior attack on the victim. ² Basically he claims that this testimony of extraneous bad conduct was inadmissible under TEX.R.CRIM. EVID. 404(b), because the State failed to provide "reasonable" notice ³ of its intent to introduce this evidence. The State does not contest the sufficiency of the notice ⁴ but rather argues that rule 404(b) does not apply. Essentially the State argues, as it did at trial, that the evidence was offered under TEX.CODE CRIM. PROC. ANN. art. 38.36(a) (Vernon Supp.1997). ⁵

The State argues that there is a direct conflict between article 38.36(a) and rule 404(b), at least in murder cases, in that article 38.36(a) allows extraneous bad conduct evidence to be admitted without the requirement of notice, while rule 404(b) contains a notice requirement applicable to all criminal cases. The State contends that legislative enactments in the Texas Code of Criminal Procedure take hierarchical precedence over the rules promulgated by the Court of Criminal Appeals in the Texas Rules of Criminal Evidence, citing TEX.R.CRIM. EVID. 101(c). Thus, the State reasons, article 38.36(a) would take precedence over rule 404(b) and in murder cases, no notice should be required to introduce extraneous bad acts as long as they fit the criteria contained in article 38.36(a). While this argument has some surface appeal, we reject it.

Applicable Law

Whether article 38.36(a) takes precedence over the rule 404(b) notice requirement in murder cases is an issue that has not been previously addressed by this court. Appellate courts in this state have, however, discussed a critical threshold question: whether article 38.36(a) and rule 404(b) as a general proposition can co-exist in Texas jurisprudence. In Werner v. State, 711 S.W.2d 639 (Tex.Crim.App.1986), modified on other grounds, Hamel v. State, 916 S.W.2d 491 (Tex.Crim.App.1996) the defendant attempted to introduce evidence of post-traumatic stress disorder, in a murder case, ostensibly to show a perception on his part that he needed to resort to deadly force for selfprotection. Id. at 644. The Court of Criminal Appeals held that the statute ⁶ did not broaden or in any way affect the rules of evidence that apply, or the way in which they apply in any given homicide case. Id. at 646. Accordingly, before a court can properly admit evidence of an extraneous offense under now article 38.36(a), it must first find the evidence relevant to a material issue other than the defendant's character. See Hernandez v. State, 914 S.W.2d 226, 232 (Tex.App.--Waco 1996, no pet.). In

Hernandez, the Waco Court of Appeals directly confronted the issue before us today. In that case, the State made the same argument the State makes here today--that the notice provision of rule 404(b) did not apply because of the existence of now article 38.36(a). The Waco court applied the reasoning from Werner and also from Fielder v. State, 756 S.W.2d 309, 318 (Tex.Crim.App.1988), to find that the notice requirement of rule 404(b) is applicable. Hernandez 914 S.W.2d at 234-35. We believe this reasoning is sound. Having applied relevancy requirements of TEX.R.CRIM. EVID. 401, et. seq., to article 38.36(a), it would make little sense to pick and choose between the provisions of rule 404(b) under the guise that a statute takes precedence over a rule, in order to conclude that the notice provision does not apply to evidence admitted under article 38.36(a). In holding that the notice provision of rule 404(b) is applicable to article 38.36(a), we are not seeking to abrogate the legislative intent of article 38.36(a). We simply find that its application in murder cases is limited by rule 404(b), including the notice requirement, and we so hold.

Having found that the notice provision of rule 404(b) is applicable to extraneous bad conduct under article 38.36(a), we must consider whether the State's notice in this case was timely. Both sides agree that the notice was given to appellant on the day of trial. The purpose of the notice provision is to adequately apprise the defendant of the extraneous conduct the State intends to introduce at trial so the defendant can prepare for same. See Hernandez, 914 S.W.2d at 234. The rule itself provides that notice be given "in advance of trial." TEX.R.CRIM. EVID. 404(b). In the instant case, notice was given on the day of trial. Therefore, notice to appellant was not timely given. See Hernandez, 914 S.W.2d at 234. The trial court erred in admitting the extraneous offense.

Having found error, we must determine if the error contributed to the conviction or punishment. TEX.R.APP. P. 44.2(a). We focus on the error and its effect on the process whereby the jurors apply the law to the facts to reach a verdict, rather than on the result. See Harris v. State, 790 S.W.2d 568, 588 (Tex.Crim.App.1989). We examine whether the trial was essentially a fair one. See id. If the error was of a magnitude that it disrupted the jurors' orderly evaluation of the evidence, no matter how overwhelming the overall evidence might have been, then the conviction is tainted. See id. We must isolate...