Yohey v. State

• Decision Date: 12 December 1990
• Docket Number: Nos. 04-88-00215-C,04-88-00216-CR,s. 04-88-00215-C
• Citation: 801 S.W.2d 232
• Parties: Leslie Wayne YOHEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 232

801 S.W.2d 232

Leslie Wayne YOHEY, Appellant, v. The STATE of Texas, Appellee.

Nos. 04-88-00215-CR, 04-88-00216-CR.

Court of Appeals of Texas,

San Antonio.

Dec. 12, 1990.

Gary W. Hutton, San Antonio, for appellant.

Fred G. Rodriguez, Jane Davis, Kirk Sherman, Edward Shaughnessy, III, Crim. Dist. Attys., San Antonio, for appellee.

Before BUTTS, CARR and ONION, JJ.

OPINION

JOHN F. ONION, Jr., Justice. ¹

These appeals are taken from convictions for the murder of Terri Yohey and of Craig Gooch. TEX.PENAL CODE ANN. § 19.02(a)(1) (Vernon 1989). Appellant was separately indicted for the offenses. The indictments were consolidated for trial. The jury assessed punishment in each cause at life imprisonment in the Texas Department of Corrections ² and a fine of $10,000.00.

Appellant advances forty-four points of error. Inter alia, appellant contends the trial court erred in consolidating the two causes for trial, erred in overruling the motion to quash the indictments for failure to give notice which particular gun was used in the deaths of the decedents, and erred in declaring mistrial when insurance was mentioned. Further, appellant urges the trial court erred in requiring him to turn over his personal statement of the case to the State after it had been used by a psychiatrist testifying for the defense, erred in not appointing a psychiatrist until eleven days before trial, and erred in allowing the State to call rebuttal witnesses and permitting them to testify. Still further, appellant argues the trial court erred in permitting a police officer to express his opinion as to how long the alleged victims had been dead at the time the officer arrived at the scene. Among the other points of error are a cumulative error contention, a challenge to the sufficiency of the evidence at the penalty stage of the trial, and a constitutional challenge to the 1981 version of TEX.CODE CRIM.PROC.ANN. art. 26.05, § 1(d), in effect during part of the pre-trial proceedings in these cases. Appellant complains of a number of special requested charges which were denied, and he attempts to raise points of error from briefs filed in pre-trial appeals on other matters.

Except as earlier mentioned, the sufficiency of the evidence to sustain the convictions is not challenged. Neither of the parties summarizes the facts in its respective brief. The record shows that the appellant and his wife, Terri Denise Yohey, had separated and were in the process of getting a divorce. In the early morning hours of July 14, 1985, the appellant entered his estranged wife's apartment with a key. She was not home. Appellant had with him his loaded nine-millimeter pistol. He lay down on the bed and waited for his wife. Later when Terri Yohey and Craig Gooch entered the apartment and came into the bedroom they were shot and killed. Gooch was shown to have been shot fifteen times. Seven or eight nine-millimeter bullets were recovered from his body including one in the back of his head. Terri Yohey was shot seven times. Three nine-millimeter bullets and two .22 caliber bullets were recovered from her body. There was some controversy about how long after the shootings the police were called. When the police arrived at the apartment in the northern part of San Antonio around 6:00 a.m. appellant told them he had shot the two individuals. He later gave a written extra-judicial confession. In his testimony appellant states he carried his nine-millimeter weapon into the apartment, as he was afraid it would be stolen if he left it in his truck outside. In the confusion that followed the entry of Gooch and appellant's wife into the bedroom, appellant admitted shooting both. He related his wife had retrieved the .22 caliber pistol from a drawer and shot at him apparently after she had been shot. He admitted taking the .22 caliber pistol from her and then shooting her with it. He related that at one point he gathered the shells and the two guns and left in his truck; that he returned shortly thereafter, scattered the shells in the bedroom, and placed the .22 caliber pistol in Gooch's hand. Appellant stated his wife remained alive and asked him to call EMS (Emergency Medical Services), and he tried but kept misdialing. The police department was later called.

In his initial point of error appellant contends the trial court erred in permitting the State to call rebuttal witnesses without proper notice being given of their appearance as requested in his pre-trial motions. Though not mentioned in his brief, appellant apparently relies upon TEX.R.CRIM.EVID. 404(b) which provides in part that evidence of other crimes, wrongs or acts may become admissible for certain purposes conditioned that upon "timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction (emphasis added)."

By its very terms the notice requirements are not applicable to rebuttal evidence. Cf. Herring v. State, 752 S.W.2d 169, 172 (Tex.App.--Houston [1st Dist.], remanded on other grounds, 758 S.W.2d 283 (Tex.Crim.App.1988). Appellant's reliance upon Rule 404(b) is misplaced. The first point of error is overruled.

In his second point of error appellant urges that the trial court erred in permitting the State to call rebuttal witnesses as he did not open the door to such testimony. TEX.CODE CRIM.PROC.ANN. art. 36.01(a)(7) (Vernon Supp.1990) provides that rebutting testimony may be offered by each party. As a general rule the State is entitled to present, on rebuttal, any evidence that tends to refute the defensive theory and evidence introduced to support that theory. Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984); Laws v. State, 549 S.W.2d 738, 741 (Tex.Crim.App.1977); 23 TEX.JUR. 3rd Criminal Law § 2558 (1982 & Supp.1990). The possibility that such rebuttal evidence may encompass extraneous offenses or acts on the part of the defendant does not preclude its admission into evidence. See and cf. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983); Beasley v. State, 634 S.W.2d 320, 322 (Tex.Crim.App.1982).

An examination of the record shows there were defensive issues raised by defense testimony authorizing the use of rebuttal testimony. Dr. Robert Kalter, a psychiatrist, testified the killings were not the result of premeditated acts by the appellant, that appellant was incapable of putting together an elaborate plan, and that appellant was not a man of violence save in limited circumstances. Appellant tried to explain why he had his nine-millimeter pistol with him at the time of the killings and testified that he did not always carry a pistol and that he did not own a pistol between 1979 and 1983. Such evidence opened the door to the rebuttal testimony.

Further, the trial court shall allow testimony to be introduced at any time before the conclusion of argument if it appears necessary to the administration of justice. TEX.CODE CRIM.PROC.ANN. art. 36.02 (Vernon 1981); 23 TEX.JUR. 3rd Criminal Law, § 2560 (1982). Appellant's second point of error is overruled.

In his third point of error appellant contends that the trial court erred in permitting the rebuttal testimony because its inflammatory nature outweighed its probative value. Although not well briefed along these lines, it appears to be appellant's contention that the rebuttal testimony contained evidence of extraneous offense and, thus, was inadmissible. See TEX.R.CRIM.EVID. 403 and 404(b).

Rule 404(b) provides in part that evidence of other crimes, wrongs, or acts may become admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The "other purposes" listed in Rule 404(b) are not exclusive or exhaustive. Banda v. State, 768 S.W.2d 294, 296 (Tex.Crim.App.1989), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 270 (1989); Torres v. State, 794 S.W.2d 596 (Tex.App.--Austin 1990, no pet.). Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Rule 404(b) recognizes that that evidence of extraneous acts, while inadmissible to prove character, "may, however, be admissible for other purposes," and Rule 403 may come into play in determining the admissibility of that evidence. "It would seem that Rule 403 more strongly favors admissibility than did many of the earlier formulations of the appropriate balancing test; with the opponent of the evidence bearing the burden of showing that the probative value is 'substantially outweighed' by the countervailing factors." 33 S. GOODE, O. WELLBORN & M. SHARLOT, GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 403.1 at 90 (Texas Practice 1988) [hereinafter GOODE] (emphasis supplied); see also Crank v. State, 761 S.W.2d 328, 342 n. 5 (Tex.Crim.App.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 209, 107 L.Ed.2d 162 (1989).

"Unfair prejudice" is a consideration that can justify the exclusion of relevant evidence. The term, however, does not simply mean that the evidence will injure or prejudice the opponent's case, which is, after all, the central point of offering evidence. The term refers to an " 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one' " GOODE, supra, § 403.2 at 93; See also Montgomery v. State (Tex.Crim.App., Nos. 1090-88 and 1091-88, May 30, 1990).

"In using Rule 403 as a basis of objection, counsel should make (and judges should expect) specific offers of proof or argument rather than bland incantations which do little to help the judge decide whether the evidence is admissible. Indeed, standardized objections of 'prejudicial' will...