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 Granting Rehearing April 16, 1998.
965 S.W.2d 3
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 sufficiency1 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, Lo-pez, 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
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
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
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
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
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.”
Having found error, we must determine if the error contributed to the conviction or punishment.
In this instant case, the source of the error was the trial court‘s admission of testimony that appellant hit the victim about a month before the murder. The witness testified that both were drunk, and had an argument before the blow was struck. The testimony in question was simple, direct and occupied about a page in the record. The nature of the error was appellant‘s claim that he did not have time to prepare for this testimony, although it is undisputed that he did not request a continuance. The record also shows the State erroneously believed that the testimony was admissible under article 38.36(a) — an issue just this day settled. The record reflects that after this testimony was presented in the State‘s case in chief, the State never again mentioned it, including no allusion to it at final argument.
In determining the existence of collateral implications from the trial court‘s error, we look to matters such as the disparaging of a defense or impact on sentencing. See Higginbotham v. State, 807 S.W.2d 732, 737 (Tex. Crim. App. 1991). The defense presented in this case was essentially that appellant was guilty only of abusing a corpse, not of murder. There was no claim that appellant had not participated in the attack on the victim. There was also little doubt that a group of assailants along with appellant had previously known the victim prior to the attack. It is doubtful, then, that the extraneous act of hitting the victim a month earlier had much collateral impact on the jury‘s verdict. Because the punishment was assessed by the trial court, no impact occurred in that respect.
Having isolated the error and all its effects, we now ask whether a rational trier of fact might have reached a different result without the error. See Harris, 790 S.W.2d at 588. In doing so, we consider how much weight a juror would probably place on the error and its probable impact on the jury in light of the existence of the other evidence. See id.
The record in this case contains no evidence that the jury actually attributed significance to the extraneous conduct at issue. The other evidence in the case was considerable, and the only issue for the jury to decide was what offense appellant committed against the victim — murder, or some lesser included offense. There was no issue of identity, and virtually no issue of intent to assault the victim. In view of these factors and the other evidence presented, we do not believe the jury would have reached a different result without the error and its effects. We find that the error was harmless and overrule point one.7
In points three and four, appellant claims the trial court erred in failing to adequately apply the law of parties to the facts of the case. Appellant essentially argues that the evidence showed that if he was guilty of a crime, such could only have been shown by the utilization of the law of parties. See
Applicable Law
As the State argues, the threshold question is whether the evidence is sufficient to support the conviction of appellant as a principal actor.
A person is criminally responsible [for an offense] if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
Application of Law to Facts
The medical examiner could not say with any degree of certainty which of the blows caused the death of the victim. He did state that all the blows to the victim contributed ultimately to his death. Essentially, he concluded that no one wound inflicted on the victim was the cause of his death, and that each wound was a concurrent cause of death. Because no other concurrent cause was “clearly sufficient” to cause the victim‘s death, appellant was criminally responsible for it as a principal actor. See id. Even assuming arguendo that the trial court erred in the submission of the application paragraph, where the evidence clearly supports a defendant‘s guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. See Williams v. State, 942 S.W.2d 787, 788 n. 3 (Tex. App. — Fort Worth 1997, no pet.). Points three and four are overruled.
In his fifth point, appellant claims the trial court erroneously denied his Batson8 challenge to the State‘s peremptory challenge of a black venireman, Fuller. During a Batson hearing, the prosecutor explained that Fuller was struck because he had ranked rehabilitation as the primary objective of the criminal justice system. Appellant contends that because the trial court, rather than the jury, was to assess punishment in the case, the State‘s proffered reason was pretextual since it was unrelated to the case on trial.
Applicable Law
Our task is to review the trial court‘s decision in a Batson hearing by utilizing the clearly erroneous standard. See Wright v. State, 832 S.W.2d 601, 604 (Tex. Crim. App. 1992). We are not to disturb the trial court‘s finding unless the record leaves us with a definite and firm conviction that the trial court was in error. See id.
In Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam), the United States Supreme Court employed a three-step process to determine whether race-based strikes were exercised: (1) the opponent of a peremptory challenge must make out a prima facie case of racial discrimination; (2) the burden then shifts to the proponent of the strike to come forward with a race-neutral explanation; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Id. at 767, 115 S. Ct. at 1770-71, 131 L. Ed. 2d at 839. While we are mindful that in Batson itself the Supreme Court suggested that the race-neutral reason had to be case-based, in Purkett that Court held that “[u]nless a discriminatory intent is inherent in the prosecutor‘s explanation, the reason offered will be deemed race neutral.” See id. at 768, 115 S. Ct. at 1771, 131 L. Ed. 2d at 839.
Application of Law to Facts
The prosecutor elaborated on his decision to strike Fuller by stating that the juror‘s views on the part played by rehabilitation in the criminal justice system tended to indicate whether Fuller was “lenient on crime or hard on crime.” So under step two of the Purkett analysis, the prosecutor offered a facially race-neutral reason for his strike. Under step three the trial court was to determine the credibility of the prosecu-
Affirmative Finding
In points six and seven, combined in appellant‘s brief, he complains that the trial court erred in entering an affirmative finding of the use of a deadly weapon in the judgment of conviction. The judgment in this case recites that the “jury affirmatively finds that the defendant used or exhibited a deadly weapon, to-wit: a brick, a piece of concrete block, and his hand and foot during the commission of the offense or during the immediate flight therefrom.” The indictment in this case alleged the commission of murder, in two separate paragraphs. Each of the two paragraphs is followed by a paragraph alleging that appellant used or exhibited a deadly weapon during the commission of the offense alleged. The verdict form signed by the jury foreman simply stated that the jury found appellant guilty of murder “as charged in the indictment.”
Appellant contends that the trial court erred in entering this finding because the charge to the jury authorized the jury to find appellant guilty either as a principal actor or as a party to the offense, and given such facts, a separate deadly weapon issue must be submitted to the jury during punishment to authorize an ultimate deadly weapon finding. Because this was not done, the deadly weapon finding was entered erroneously. We agree. There was no affirmative finding by the jury, and the State concedes as much. The trial court erroneously found that the jury made an affirmative finding of the use or exhibition of a deadly weapon. See Bruton v. State, 921 S.W.2d 531, 538 (Tex. App. — Fort Worth 1996, pet. ref‘d).
The only disagreement between the parties concerns the remedy. Appellant argues that the affirmative finding should be in all things deleted. The State contends the cause should be abated. We agree with the State. In this case, the trial court, upon the election of appellant, assessed punishment in the case. Therefore, the trial court, as fact-finder on punishment, had the authority to make a deadly weapon finding. See Flores v. State, 690 S.W.2d 281, 283 (Tex. Crim. App. 1985). As the State correctly notes, it is impossible to tell from the record whether the trial court actually made an independent fact finding as to the deadly weapon usage, making the judgment entry a clerical error, or whether the trial court mistakenly believed a finding could be made based on the jury‘s general verdict of guilty of murder “as charged in the indictment.” Therefore the proper remedy is to abate the case for a hearing to determine whether a nunc pro tunc order to correct a clerical error is proper, or whether the error was a product of judicial reasoning and therefore not to be disturbed. See State v. Bates, 889 S.W.2d 306, 309-10 (Tex. Crim. App. 1994).
Accordingly, the trial court is to conduct a hearing, with appellant, his counsel, and the court reporter present to determine whether or not a nunc pro tunc order correcting the judgment is proper in this case. The trial court shall file a record of the hearing in this court on or before November 26, 1997. On our receipt of the supplemental record, the judgment of this court shall issue.
This cause is abated to the trial court for proceedings consistent with this opinion.
OPINION ON REHEARING
PER CURIAM.
Appellant was convicted by a jury of the offense of murder. At appellant‘s option, the trial court1 assessed punishment at thirty years’ confinement in the Institutional Division of the Texas Department of Criminal
Having found that the trial court committed error, we must determine whether the error is constitutional3 or other error that could have affected the appellant‘s substantial rights.4 Although rule 404(b) of the Texas Rules of Criminal Evidence and rule 404(b) of the Federal Rules of Evidence are largely identical, the notice provisions of the two rules differ. The federal rule provides that notice may be given during trial if good cause exists for not having given pre-trial notice. See
Under rule 44.2(b) we are to disregard the error unless a substantial right is affected.
To determine the question of burden of proof with regard to rule 44.2(b), we compare it with rule 44.2(a). Rule 44.2(a), by implication, requires the beneficiary of the error in the trial court, ordinarily the State, to demonstrate beyond a reasonable doubt on appeal that the error did not
Applying the test in rule 44.2(b) to the instant case, every witness who saw the attack testified that appellant struck the deceased. The medical examiner opined that no single blow in and of itself caused the victim to die, but each wound constituted a contributing factor which, in the aggregate, caused the cerebral edema that resulted in the victim‘s death. As pointed out on original submission, the defense presented in this case was essentially that appellant was guilty only of the lesser included offense of abuse of a corpse, not murder. See Umoja at 5-6. Appellant did not claim that he did not participate in the attack, and there was ample evidence that there had been prior contact between the appellant and the victim. We do not believe, in the context of the entire case against appellant, that testimony that appellant had struck the victim one month before the instant offense had a substantial or injurious effect or influence on the jury‘s verdict such that appellant was deprived of a substantial right. We find that the error was harmless, and overrule point one.
Additionally, on original submission, in points six and seven, appellant challenged the entry by the trial court of an affirmative finding that a deadly weapon was used in the commission of the offense, in the judgment of conviction. See id. at 10. We agreed with appellant that the trial court erroneously entered the finding, in that he opined that the jury had made such a finding. See id. at 10; see also Fowler, 958 S.W.2d at 858. Accordingly we abated this cause to the trial court for a hearing to determine whether a nunc pro tunc order to correct a clerical error was in order, or whether the error was a product of judicial reasoning and therefore not to be disturbed. See Umoja at 10. Pursuant to our order, the trial court conducted a hearing with both parties present. At the conclusion of the hearing, the trial court entered written findings of fact and conclusions of law, ultimately finding that the recitation in the judgment that the jury made a deadly weapon finding was the result of a clerical error and not the product of judicial reasoning. Further, the trial court found that the judgment should be corrected nunc pro tunc to reflect that “the court affirmatively finds that the defendant used or exhibited a deadly weapon,” and that “[t]he correction of the judgment to reflect the court‘s deadly weapon finding constitutes a clerical correction which requires no judicial reasoning.” The record shows that the trial court ultimately entered a nunc pro tunc order correcting the minutes of the court to reflect that the “court affirmatively finds that the defendant used or exhibited a deadly weapon, to-wit: his hand and foot during the commission of the offense or during the immediate flight therefrom.” Accordingly, because the trial court, in the instant case, was the fact-finder during the punishment phase of trial, he had the authority to make a deadly weapon finding. See Flores v. State, 690 S.W.2d 281, 283 (Tex. Crim. App. 1985).7
The judgment of the trial court is affirmed.