Lockhart v. State

LOCKHART, Appellant, Michael Lee Texas, Appellee.

STATE of

No. 70734. Texas, Appeals of

Court of Criminal

En Banc.

Dec.

Rehearing Denied Feb. Beaumont, Barlow,

Douglas ap- M. for pellant. Maness, Atty.,

Tom Dist. and John R. Beaumont, DeWitt, Atty., Asst. Dist. Rob- Huttash, Austin, Atty., for the ert State’s State.

OPINION MALONEY, Judge. jury capital

A mur convicted der, peace specifically murder of a officer.* Code, 19.03(a)(1). Penal V.T.C.A. § affirmatively answered the submitted 37.071(b) prescribed issues article punishment at the trial court assessed 37.071(e), death. Art. V.A.C.C.P. This County on a cause was tried in Bexar change County. of venue from Jefferson twenty-two Appellant appeals, alleging points of We will affirm his convic error.1 challenge does tion. Because evidence, sufficiency of the we will dispense a detailed recitation of the facts. 22, 1988,

Briefly, March Beaumont Hulsey, Officer Paul Jr. saw Police red with a Florida driving lant Corvette high in a crime area Beau- mont, recognized . Texas. being a local dealer. passenger officer, began When saw running stop signs. Officer speeding and no Hulsey chased but to avail.2 evening, discovering that Later that after motel, into a appellant had checked local Hulsey went to motel * introductory points tionality does Only paragraphs, er- trial. Because nineteen, closing right hybrid through representation, ror twelve absolute paragraph designated publication. are Miniel v. we will not address these claims. Tex.R.App.P. 223(b). (Tex.Cr.App. n. (citations omitted). 1992) supplemental pro filed a se has also raising points four additional brief a different We testified to constitutionality note that challenging 071, 37.- of article According the facts. coun- version of and the effectiveness V.A.C.C.P. testimony, the car. failing challenge never chased article’s constitu- sel for re- The trial court admitted the evidence on an altercation ensued which

room and trial, ap- relevancy ultimately death. At sulted in the officer’s the condition that be shooting killing Offi- pellant 104(b). admitted shown. Before Tex.R.Crim.Evid. Hulsey, claimed self-defense. but case, prosecu- rested its State main tor stated that evidence of stolen through eighteenth points In his twelfth gun, plate, the stolen license error, appellant complains of extraneous of money, appellant pos- showed what guilt- admitted at offenses that were sessed at the time he killed the officer.4 trial, portion trial.3 At innocence of his physical testimonial introduced State acts Evidence of other crimes or bad attempted drug regarding an of- may that a defendant have committed can fense, aggravated robbery of an auto- an guilt-innocence not be introduced (i.e. car), burgla- a salesman a stolen mobile in phase to show that the defendant acted (i.e. plate), a license ry of a vehicle conformity his criminal nature burglary aggravated robbery, a an bank the crime for which he therefore committed (i.e. “diary so-called of gun), a stolen and a State, 810 Montgomery v. is on trial. Appellant objected extraneous offenses.” 872, (Tex.Cr.App.1991) (op. on 386 constitut- the aforementioned evidence State, reh’g); Abdnor v. 476, 808 S.W.2d offenses; ed evidence of extraneous State, v. Couret (Tex.Cr.App.1991); ma- proven relevancy had not the State (Tex.Cr.App.1990); case, 792 S.W.2d and that teriality to issue (Tex. given any reason for the Foster 779 S.W.2d had not State denied, 494 U.S. Cr.App.1989), evidence. admissibility of such it, Well, possession in of Specifically, appellant he was [Prosecutor]: contends: your put possession him in Honor and we can NO. TWELVE: Reversible POINT OF ERROR it earlier. of allowed to error occurred when the State was say the Court—state if the Let me also generally through try Appellant a criminal this, let me state Court is concerned about of extraneous offenses. the introduction bag she sees it that the bank or the last time Tri- ERROR NO. THIRTEEN: The POINT OF objection or—if his is that it will confuse admitting evidence of an al Court erred in bag robbery, issues because of the the bank offense, burglary a habi- to-wit: of extraneous is—or she sees it before the that she sees tation. re- I think the Court will occurred. NO. FOURTEEN: The Tri- POINT OF ERROR will member it occurred—I think the Court admitting an in evidence of al Court erred twenty-first offense, remember it occurred on attempted drug to-wit: an extraneous bag the bank or she I think she doesn’t see offense. last time she sees even the Defendant —the FIFTEEN: The Trial OF ERROR NO. POINT bag the bank is the sees the Defendant or admitting erred in evidence of an extra- Court offense, aggravated robbery nineteenth or twentieth. of neous to-wit: is, question I have where is The [The Court]: salesman. an automobile bag possession a at all relevant to The Trial of bank OF ERROR NO. SIXTEEN: POINT admitting an extra- or not— erred in evidence of whether Court offense, possession same of a vehicle. He’s in of that to-wit: [Prosecutor]: neous bag— SEVENTEEN: The POINT OF ERROR NO. bank admitting I a in evidence of Wait a minute until ask Trial Court erred [The Court]: offense, aggravated question, please. rob- extraneous to-wit: answer, my bery sir. at a bank. That’s [Prosecutor]: Tri- completed question. EIGHTEEN: The OF ERROR NO. POINT I haven’t [The Court]: admitting ques- Exhibit give in State’s you al Court erred answer? The How can me an Sixty-five, diary offenses. allegations of extraneous is where is that relevant to tion you the indictment? made in record, only searching reference 4. After just posses- Judge, puts him [Prosecutor]: any any purpose introduction possession things of at the sion of that he’s in regard alleged is in extraneous offenses just Hulsey, he’s in Paul like time he killed bag the Louisiana bank taken from the bank Corvette, just pos- possession he’s in of a like day offi- killed the before possession plate, of a stolen he’s session cer. gun. money, possession We want he’s in possession of the same to show he’s in objected counsel] He [defense [Prosecutor]: helps bag It draw you bank earlier. bag, Judge telling similar and I’m bank to the identity bag that bank bank and his why to that bag. relevant. that’s it's Why? Court]: [The Beaumont, (1990); ning stop signs through 108 L.Ed.2d 639 ulti- S.Ct. (Tex. losing chase. Templin mately omitted); (citations Cr.App.1986) Tex. The revealed that evidence at trial However, 404(b). extraneous R.CRIM.Evid. red from an lant had stolen the Corvette pur- may be admitted for offenses gunpoint salesman at about automobile “motive, opportuni- poses, prove as to such and that four months before intent, plan, knowledge, ty, preparation, appellant checked into Beaumont motel or acci- identity, or absence mistake using Appel- name. room salesman’s 404(b). dent.” Tex.R.Crim.Evid. stealing lant car. Florida admitted on the red Corvette was identi- Also, evidence of extraneous of fied as that stolen about at trial two indivisibly that are connected the fenses offense a months before this from vehicle charged necessary to the offense and Appellant a belonging to Florida witness. proving State’s case offense plate he put testified that a Florida license may be admissible as relevant evidence to on the around that time. Corvette explain the context of the offense for This evidence describes the circum- Mayes defendant is on trial. See which the (Tex.Cr. State, surrounding 4 Officer death 86-87 n. stances State, necessary jury’s comprehen- App.1991); and is to the see also Mann v. 718 Hulsey (Tex.Cr.App.1986), sion Officer would S.W.2d de- of the offense. nied, gone not motel room 481 U.S. S.Ct. (1987); had not been involved in a car chase L.Ed.2d 206 Albrecht v. he (Tex.Cr.App.1972). driving who was a stolen car appellant S.W.2d And, plate.5

with a stolen license Here, Hulsey appellant following saw Hulsey would not have been suspected drug talking a near a dealer by appellant suspicions car had driven high court in a crime area. Ac by basketball not what been aroused he saw concern- testimony, cording drug ap to the dealer’s ing drug a suspected transaction. pellant approached drug dealer and get if he

asked him knew how to some of the We hold that evidence marijuana. drug The dealer said drug cocaine or attempted no, got into car. Offi plate but then stolen license constituted contextual suspicious became he this when saw indivisibly evidence connected to of get dealer into the car because under fense and therefore relevant Tex. appellant driving was a red Corvette with a R.Crim.Evid. 401.6 We also conclude that plate in a high Florida license crime area. possible prejudicial effect of the afore that substantially When noticed evidence did not mentioned them, value; therefore, began speeding had he and run- probative seen outweigh its appellant, probable stop was cause that issue 5. It is unclear whether Officer ever stolen; however, jury.” at the Corvette was aware that was not contested before appel- when part the record reflects that he went We held that the evidence was further room, was lant’s motel aware that offense.” of the "context of the was on the Corvette stolen. Christopher, was In the fact any inconsequential to driving a stolen car was case are distin- 6. We note the facts Moreover, jury. issue for determination guishable Christopher from the facts necessary car was of the stolen evidence (Tex.Cr.App.1992). In Christo- 833 S.W.2d 526 give complete picture the commis- a stopped driving pher, was case, In the instant these sion of the offense. property car contained stolen vehicle. The appearance events lead to the officer’s reported several resi- had been stolen from prior The encounter be- lant’s motel room. day. dences earlier that sub- habitation, is so intertwined tween the officer and sequent trial for of a of the instant offense as to with the commission appellant was trial court admitted evidence that jury's comprehension necessary to the render driving of his arrest. a stolen car at time Mayes, 816 S.W.2d at establishing instant offense. See We "[w]hile stated n. 4. car was relevant to the determination 86-87 as stolen Mann, 718 that one hundred dollar bill as the bait was admissible.7 such evidence money given Appel- had to the (the prejudicial effect of evi- she robber. at 744 that he had in Baton it inadmissible if it lant testified been rarely render dence will March, offense). Rouge during the second week of the proves the context couple stayed for a weeks 1988 and had testimony complains also Thus, thereafter. the fact that concerning aggravated bank Rouge in Baton when the bank rob- was burglary. jury’s pres- Out of committed, bery and the fact that he ence, appellant objected that such testimo- possessed money one and about evidence lack- ny extraneous offense indi- days one-half after the would value, that it confused ing probative robbery. that he committed the bank cate issues, effect of prejudicial and that the after outweighed any pro- found red Corvette testimony clearly identified at the Officer was killed was The trial court overruled bative value. by police magnum officer as his .357 Ap- objection under Tex.R.CRIM.Evid. revolver, which specify and Wesson service requested the State to Smith pellant then stolen from his home about seven purposes under rule had been in the record for what And, accord- 404(b) The trial months before this offense. testimony was offered. special FBI ing testimony to the of an request because the evi- rejected court that agent, evidence a bullet found near Officer tendered as relevant dence was gun.9 Undaunted, body fired from that same appellant fur- was under rule 401. the trial court limit the requested ther that agree appellant that the We jury could consider purposes for which the robbery testimony concerning the bank and he testimony. Appellant did note that the offenses, burglary indicate extraneous the purposes were not know what those did of their admissi and now turn to the issue required to articu- since the State was aggravated robbery and bility. The bank court stated that its reasons. The trial late in burglary separate and the are offenses given in limiting would be any instruction police offi dependent killing of the testimony.8 charge, during that cer. The State has not shown robbery any way in connected to March bank was testified that on A bank teller offense, offense, although and the stolen the instant day the instant before weapon, murder the fact gunpoint in was the her bank at someone robbed necessary to the stolen was not Rouge, The teller hand- was Baton Louisiana. offense; bill, comprehension of jury’s hundred dollar a one ed robber therefore, burgla money.” robbery and aside as “bait bank had been set which contextual ry are not “same transaction” previously recorded the seri- The bank had n. 4. Mayes, 816 S.W.2d at 86-87 log. Shortly in a evidence. of that bill al number Rather, of the offense, gave a the evidence bank after the instant general to the burglary are akin dollar bill to a one hundred taxi-cab driver is evidence that “background” contextual The teller identified him to Houston. take against consider this testi- any him. You cannot Additionally, appellant error in waived you any purpose believe be- mony unless the at- for introduction of evidence of the State's defendant yond testified that the tempted offense because a reasonable doubt offenses, marijuana. Hughes any. looking if Even for that he was committed such (Tex.Cr.App.1978), then, may only S.W.2d the same in you consider denied, defendant, determining identity of the (1979). Similarly, appellant motive, intent, waived L.Ed.2d 640 system, scheme the issues of testimony concerning regarding offense, any error design, with this in connection that he stole because he admitted purpose. for no other gunpoint. salesman at Id. the car from the special agent that a also testified 9.The FBI following paragraph charge contained the 8. The body bullet and a removed from the bullet concerning extraneous offenses: could the motel room under a chair in found gun, he could but that been fired from that introduced in this case Evidence has been regarding exclusion of to the having not make that determination committed the defendant's guns. alleged all other the offense now offenses other than trial, appellant At testified that he killed comprehension of unnecessary jury’s to the knew that deceased and at 88. Such evi- offense. Id. police when he it is was a is unless authorized deceased dence inadmissible 404(b). only killed him. The issue whether purpose” “other under rule as an As ulti- appellant acted self-defense. we Id. opinion, even if mately hold in this pro In detailed the Montgomery we facts, as appellant’s version of the believed for admis preserving cedure error law, matter of the evidence did not consti- a of extraneous offenses. The defen sion light tute self-defense.10 object must inad dant the evidence is persuaded admission to this we are 404(b), rule missible under then the State beyond a that the error reasonable doubt proffered is must that the evidence show admitting aggravated evidence bank tendency from to show apart relevant its did not contrib- is a criminal. Mont defendant Harris, conviction.11 ute Further, the at 387. gomery, 810 S.W.2d Tex.R.App.P. 584-88; 81(b)(2). request court honor trial should into defendant for the State to articulate admissibility We now consider the purpose the record the for which the evi “diary” that he contends is If the court dence offered. of tended to connect to extraneous relevant, is determines that “diary” actually a 1988 fenses. This object must further under the defendant containing mis glance week at datebook rule 403. names, figures, and cellaneous notations. offense, the To constitute an extraneous Here, the State never offered the evi- act, evidence must show crime or bad purpose limited rule dence under to it. the defendant was connected 404(b), though appellant requested even (Tex. Hams specify purpose that the State for what the reh’g), denied, Cr.App.) (op. on rule. evidence was offered under 98 L.Ed.2d Therefore, aggra- since the of evidence 404(b). Here, (1987); see Tex.R.CRIM.Evid. vated bank and the were “diary” appel did not tend to connect as and inadmissible contextual evidence any appel bad or prior lant to acts crimes exceptions were not offered as under rule Indeed, did may lant have committed. it 404(b), admitting in the trial court erred acts, depict activity or any not criminal bad such evidence. We decide now whether trial. let alone offered at his As such those Tex.R.App.P. that error was harmless. ex not excludable as an the calendar was 81(b)(2). traneous offense. 81(b)(2) “Rule mandates that the However, rel upon court deter- must be late focus the error and calendar evi it to it can be admitted into mine whether contributed the convic- evant before 84; at or 816 S.W.2d punishment.” Mayes, tion Harris v. dence. Tex. Texas of (Tex.Cr.App.1989). 402. The Rules 790 S.W.2d R.Crim.Evid. relevancy Nevertheless, as “evi impact “the of the error can- Evidence define Criminal having any tendency to make properly be evaluated without examin- dence not consequence any with of fact that is of ing its interaction evidence.” existence the action more question at The then is to the determination of Id. 586. “whether probable it be might probable reached or less than would a rational trier fact if result the error and its ef- the evidence.” Tex.R.CRIM.Evid. a different without need consequential had at 401. The fact issue fects not resulted.” Id. ishment, testimony appellant’s of nu- nine- also heard 10. the discussion of infra point error. teenth more heinous offenses much merous extraneous robbery, including rape the murders, brutal than bank The evidence of the bank capital two each his ex-wife and of involving burglary although guilt-inno- not admissible at teenage girl. rape of a and murder punish- cence would have been admissible at 37.071, 2(a), pun- V.A.C.C.P. At § ment. Art. again get against can told to not be contested before evidence be the wall finally at and Mayes, complied. relevant. 84. Evi- if dence relevant it influences facts that is wall, against the Once guilt. concern the ultimate determination of placed weapon his to officer the back appellant’s Hulsey neck. Officer When Here, appel weapon, lowered his turned a witness who dated fist, him and hit in the face with his lant a short time testified that around “diary” belonged appellant. causing to The “dia the officer to fall back onto the Appellant top in in ry” jumped was relevant that was found bed. of Officer room, appellant’s Hulsey struggled. motel where offense and the two Officer occurred, connecting appellant Ap- thus to the Hulsey trigger finger. bit pellant crime scene. 401. Ac already angry, testified he was Tex.R.Crim.Evid. through eigh cordingly, finger twelfth and the officer bit his he be- when points teenth are overruled. error angrier. Appellant hit the came officer They a pen. the head with fell on the point his nineteenth ground weapon and the officer’s accidental- contends that erred “[t]he [t]rial [c]ourt ly discharged, but no one was hurt. failing negate require the State to application issue of self-defense struggle and They continued to [c]harge.” Be- paragraph of [c]ourt’s grabbed pointed gun, it at Offi- cause we determine that head, him drop told his self-defense, sufficiently raise did not weapon. struggle continued and the given charge error in the self-defense discharged. Again, gun accidentally stolen necessarily harmless. Appellant no hurt. hit Officer one was Hulsey gun, butt of the According testimon Hulsey Ap- dropped weapon. his Officer y12, appel knocked on Officer pellant from the and told away backed bed room and asked him for lant’s motel door weapon. reach for some identification. knew But, it and appellant officer reached for police Appel was a officer. ap- shot asked him twice. reason, if inquired lant asked pellant again. Appellant shoot arrest, if the had he was under agreed Appellant fled room. testi- and Hul- an arrest or search warrant. Officer pulled fied he did realize that he that not sey just that wanted to see responded he feeling in trigger he had no because Appellant indi identification. finger. that on and he cated that it was the dresser get would it. investigating testified to oral An door, and Appellant partially appellant closed made after he had statements the general rights13. the room towards went inside been of his He testified warned said, nightstand plain area on which “I’ll never of chuckled Hulsey gun. pushed Hulsey’s] Officer forget view was the look in his [Officer and, drawn, weapon open with his eyes begged door he me not shoot as get Ap- against Appellant told wall. also said that when anymore.” why, respond- pellant Hulsey asking and the officer his room asked came to Officer identification, over “you gun “planned get ed have a there.” because had [the Appellant again get drop if he was under ar- on offi- asked stolen] rest, or if the officer had arrest cer.” warrant,

search which Officer Appellant initiated the altercation responded negatively. asked death; that resulted officer to leave room. Arizona, happened in the 13. Miranda v. entire account of what This 15.17(a), (1966); night Art. 16 L.Ed.2d 694 shot and killed motel room testimony. is V.A.C.C.P. from Op. majority opinion implies. this cause in the record that there is no evidence attempted the encoun- to abandon at 571. new Rules of Criminal Under Further, Evidence, it. the record ter once he initiated required.1 is more use that Officer did not reflects “purpose” for some oth- To be admissible resis- force14 and excessive in Rule er than of those delineated one evidence did tance unreasonable. The was crimes, 404(b) itself, of “other self-defense, sufficiently not raise wrongs, relevance or acts” must some omission, any, charge error of if was Tex.R.Cr.Evid., to an issue in the case. Penal necessarily harmless. See V.T.C.A. say, 402. That is to it must have Rule Code, 9.31(b)(2) (4). Appellant’s § “tendency to of some make the existence point error overruled. nineteenth of is consequence any fact is of de- Having appellant’s points reviewed all of probable of the action more termination mer- of we hold that each is without probable than it would be without the less Accordingly, judgment it. court’s Tex.R.Cr.Evid., Rule 401. evidence.” Sim- is affirmed. an extraneous offense ply to observe that is is “contextual” not sufficient establish BENAVIDES, J., participating. apart it has from its character relevance CLINTON, dissenting. Judge, conformity And where evidence of value. of majority’s crimes, I dissent to the resolution only has wrongs, “other or acts” points complaining of error of the admis- value, conformity balancing character “the in this sion extraneous offenses cause. required by [Tex.R.Cr.Evid.,] otherwise majority concludes that evidence that obviated, Rule 403 is the rulemakers hav- driving was car ad- ing probativeness of deemed that the such Op. missible “contextual evidence.” slight ‘substantially evidence is so as to be majority on primarily 571. The relies outweighed’ by danger preju- of unfair Mayes (Tex.Cr.App. 816 S.W.2d79 Montgomery dice as matter law.” 1991). 571-572, Op. at n. Mayes 570 & (Tex.Cr.App. at 387 holds expressly that “evidence 1991) rehearing (Opinion on own Court’s crimes, acts,” Tex.R.Cr.Evid., wrongs, or motion). 404(b), only Rule is if not admissible “context,” Apart proclaiming from theory the State can articulate for its ad- identify majority fact con- does missibility provides “background” is that it car sequence evidence that the offense. Whether “other probable. stolen makes more or less Nor crimes, wrongs, may proven or acts” be explain evidence is majority does how simply they during occurred because just it under Rule 401 because “relevant” transaction,” “same and thus constitute doubtful) (if is, “indivisibly which is question of the left is “context” is a it, open by Op. offense.2 at Mayes —not resolved as connected to” question officer was authorized to enter motel 14. was authorized appellant, investigate prevent safety. and to protect and Terry room to his Ohio, consequences of v. theft. (1968); 88 S.Ct. L.Ed.2d authority by majority cited 1. All decisions as State, (Tex.Cr.App. Worthey v. S.W.2d 435 prior Mayes prosecuted other than were 1991); Mays v. 943-44 of the new rules. effective date denied, (Tex.Cr.App.1986), 484 U.S. (1988). 98 L.Ed.2d 1020 Before why majority believes 2. It is unclear to me room, appellant’s motel went to part of the “same transac- the car was stolen as talking he had witnessed with some- shooting tion” as the of Officer dealer, recognized officer as a one the appellant Thus, even hotel room. I would not think so. chase, in a car had outrun believes, mistakenly assuming, majority and the officer knew appellant's Mayes did hold that "same transaction” (indicating car was stolen always under will be admissible stolen). misconduct might Because the offi- car too also be all 404(b), supra, that would I do not see how possessed Rule saw this information when he room, gun plain the offense here admissible. view in render me certainly 571. It is not self evident to readily could not have under- transpired in what the hotel room

stood

between and Officer with- fact, car I knowing

out was stolen. knowledge how imagine

cannot could impacted jury’s deliberation of the way in this case one or the

material issues prosecutor, judg-

other. Neither could the

ing complete inability identify his from

single consequence fact of the offense was 570, n. It prove. Op.

relevant

appears offense had no the extraneous prejudice appellant purpose

more than to showing propensity

unfairly by general prov- no more contributed to crime. It

ing consequential fact than did those we erroneously

held were admitted Christo-

pher (Tex.Cr.App. 833 S.W.2d 526

1992). beyond say

I a reasonable doubt cannot

that, especially together taken evi- with the Rouge robbery in

dence of the Baton during which the

stolen, majority acknowledges which evidence of the sto-

was admitted

len no contribution to the verdict. car made 81(b)(2).

Tex.R.App.Pro., I Rule Therefore judgment

would reverse new

court and the cause for trial. remand not, respectful- I majority does

Because

ly dissent. RANDLE, Appellant,

Michael Texas, Appellee.

The STATE

No. 889-91. Texas, Appeals of of Criminal

Court

En Banc. 20, 1993.

Jan.

Rehearing Feb. Denied

Case Details

Case Name: Lockhart v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 2, 1992

Citation: 847 S.W.2d 568

Docket Number: 70734

Court Abbreviation: Tex. Crim. App.