Codiem Renoir Wooten v. StateCodiem Renoir Wooten v. State
Jessica Alane Caird, Houston, for the State.
Panel consists of Justices FROST, BROWN, and CHRISTOPHER.
OPINION
JEFFREY V. BROWN, Justice.
Appellant Codiem Renoir Wooten appeals his jury conviction for murder on two grounds: (1) the State’s questions during cross examination amounted to аn admission of irrelevant hearsay about prior bad acts and (2) the trial court erred during
I
On the night of August 30, 2009, Kwasi Johnson and a friend were passing time at a strip club. While there, Brandi Cleveland approached Johnson and offered to perform sexual acts for a set price. Johnson agreed and later picked up Cleveland at a house somewhere in Harris County. After bringing Cleveland to his apartment complex, Johnson tried to negotiate a lower price. Cleveland deсlined and asked Johnson to take her home. In the car, Cleveland called Wooten, her pimp, to inform him that the proposed transaction did not go through.
Wooten was outside waiting when Johnson and Cleveland arrived. Cleveland got out of Johnson’s SUV, leaving the passenger door open. Wooten testified that he approached the open door desiring to discuss with Johnson “why the date went wrong.” He could seе that Johnson was armed, and Wooten had a gun in the back of his pants. As the discussion progressed, Wooten testified that Johnson’s businesslike demeanor changed so that he heard “frustration in his voice, a little bit of anger,” a “heightened tone,” and an “aggressiveness as he spoke.” Wooten said at that point he “felt threatened.” “I was in my own yard,” he testified, and “[t]his man was at my house with a weapon dealing with my female.”
Wooten tеstified he then said to Johnson, “You’ve been gone over an hour with my girl. This is how we eat, this how we live, this is how we survive, she’s been gone over an hour, can you give her something for her time.” Johnson’s response, according to Wooten, was “fuck you, fuck
Cleveland testified she was paying little attention to the argument, but saw a flash inside Johnson’s car when the shooting began. Johnson sped off after the shooting, and police later found his SUV nearby with his dead body inside. He had been killed by a gunshot wound to the heart. Wooten was also hit, and he spent nearly a month in a hospital recovering.
After conceding that he lied to police in his initial interview, Wooten testified that he lied only because he had never dealt with police before: “I’ve never been in this situation. I’ve nеver been in any trouble whatsoever, so I don’t know how to handle this situation. I didn’t have counsel to lead me for the questions, so I denied everything.” In response, the State gave notice of its intent to question Wooten regarding several extraneous offenses which had caused him to come into contact with police. The court allowed that line of questioning, noting that Wooten’s comment had “more than openеd the door.” Afterwards, the following exchange occurred concerning Chelsie Griffin, the mother of one of Wooten’s children:
Q. Okay. The police got called out to [the address where Wooten shot Johnson] on February 12, 2009, did they not?
A. February 12, 2009—for [Chelsie] Griffin?
Q. Yes, sir.
A. Uh, I don’t believe that’s true.
Q. Are you telling me that the police report I have in my hand is not true?
...
Q. And if [Griffin] described you as violent, suicidal, and uses drugs, would she be telling the truth?
Neither the police report nor any statement made by Griffin wаs offered into evidence. The jury ultimately rejected Wooten’s assertions of self-defense and found him guilty of murder.
Before the punishment phase of the trial, Wooten requested a sudden-passion instruction from the court:
[Counsel]: We would argue that the evidence, there is evidence in the record that supports such a charge, specifically that Mr. Wooten in his testimony stated that once the shooting began that hе was overwhelmed by emotions of fear.
[The court]: Once his shooting began?
[Counsel]: Once the shooting began, that he was overwhelmed by emotions of fear, disorientation, confusion, et cetera. And, your Honor, I would argue that this would substantiate thе charge. (emphasis added).
The court refused Wooten’s requested charge, and the jury sentenced Wooten to 60 years in prison. This appeal followed.
II
A
In his first issue, Wooten complains that the trial cоurt erred in admitting irrelevant hearsay about extraneous bad acts. We review the trial court’s denial or admission of evidence using an abuse-of-discretion standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005);
Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex.Crim.App.2005). This does not mean, however, that such evidence will always be inadmissible. Id. at 451; see Hudson v. State, 112 S.W.3d 794, 801 (Tex.App.-Houston [14th Dist.] 2003, pеt. ref‘d). If a defendant testifies to a blanket statement of good conduct or character—e.g., “I would never have sex with a minor”—he may “open the door” by leaving a false impression with the jury about a relеvant act or character trait. Daggett, 187 S.W.3d at 452. Evidence of an extraneous act that tends to rebut such testimony may be admissible to impeach the defendant. Id. These standards notwithstanding, neither remarks by counsel nor questiоns put to a witness are evidence. Wells v. State, 730 S.W.2d 782, 786 (Tex.App.-Dallas 1987, pet. ref‘d); see Madden v. State, 242 S.W.3d 504, 513 (Tex.Crim.App.2007).
At trial and on appeal, Wooten’s complaints are centered on the State’s questions regarding Chelsie Griffin. Assuming that Wooten timely objected, we can find no error in the trial court’s handling of the relevant cross-examination. Initially, we note that the State’s questions did not constitute evidence, and thus the trial court could not err by “admitting” them. See Wells, 730 S.W.2d at 786. Further, the State was justified in pursuing its chosen line of questioning. Insofar as the State made reference to a police report, Wooten himself “opened the door” when he testified that he had “never been in any trouble whatsoever.” See Daggett, 187 S.W.3d at 452. Likеwise, Wooten’s self-defense theory ensured the State was justified in asking whether “violent, suicidal, and uses drugs” accurately described him. See, e.g., Hudson, 112 S.W.3d at 801 (“It is well-settled that extraneous[-]offense and prior[-]bad[-]acts evidenсe is admissible to rebut a defensive theory.”). We overrule Wooten’s first issue.
B
In his second issue, Wooten complains that the trial court erred by refusing to charge the jury on sudden passion. We review claims of jury-chargе error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g); Swearingen v. State, 270 S.W.3d 804, 808 (Tex.App.-Austin 2008, pet. ref‘d). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If error exists, we then evaluate the harm caused by the error. Id. The degree of harm required for reversal depends on whether that error was preserved in the trial сourt. Swearingen, 270 S.W.3d at 808. When error is preserved in the trial court by timely objection, the record must show only “some harm.” Almanza, 686 S.W.2d at 171. By contrast, unobjected-to charge error requires reversal only if it resulted in “egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App.2008).
During the punishment phasе of a murder trial, a defendant may argue that he caused the death while under the immediate influence of a sudden passion arising from an adequate cause.
Self-defense and sudden passion are intricately intertwined, and except in rare instances, facts that give rise to a self-defense issue also give rise to a sudden-passion issue. Chavez v. State, 6 S.W.3d 56, 65 (Tex.App.-San Antonio 1999, pet. ref‘d) (cited by Trevino v. State, 100 S.W.3d 232, 242 n. 40 (Tex.Crim.App. 2003)). The reverse is also true: Except for rare instances, evidence sufficient to overcome a self-defense issue is sufficient tо disprove sudden passion. Id. Because self-defense and sudden passion so often arise from the same facts, trial courts are “generally well advised to give both instructions.” Benavides v. State, 992 S.W.2d 511, 525 (Tex.App.-Houston [1st Dist.] 1999, pet. ref‘d). A trial court is obligated to instruct the jury on sudden passion only when the evidence supports such a finding. Id. at 524-25 (citing Lewis v. State, 89 Tex.Crim. 345, 231 S.W. 113, 115 (Tex.Crim.App.1921)). It takes very little evidence to reach this threshold: As long as the record contains some evidence to support a sudden-passion charge—even if that evidence is weak, impeached, contradicted, or unbelievable—the jury should receive a sudden-passion instruction. McKinney, 179 S.W.3d at 569. However, the evidence cannot bе so weak, contested, or incredible that it could not support such a finding by a rational jury. Id.
The thrust of Wooten’s case is his claim that he acted in self-defense. But there was also at least some evidence that he acted out of sudden passion. Wooten testified that he felt threatened by Johnson’s insulting words, directed at him and Cleveland while in their own front yard, even before either man reached for a gun. The Court of Criminal Appeals has held that a “jury’s rejection of self-defense at guilt-innocence does not necessarily mean that, given an instruction on sudden passion at punishment, it would have rejected that theory as well.” Trevino, 100 S.W.3d at 242-43. Accordingly, we hold the trial court should have instructed the jury on sudden passion at the punishment phase. See id.
If the jury had determined that Wooten acted out of sudden passion, the offense would have been reduced to a felony of the second degree, which carries a maximum sentence of 20 years. See
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For the foregoing reasons, we affirm appellant’s conviction, reverse the trial court’s judgment as to punishment, and