John Charles Naef v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00095-CR



John Charles Naef, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR96-211, HONORABLE JACK ROBISON, JUDGE PRESIDING

Appellant was convicted of capital murder and sentenced to life imprisonment. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West 1994) (multiple murders in same transaction) & § 12.31(a) (West 1994) (if State does not seek death, penalty is life imprisonment). Appellant brings three points of error contending the trial court erred (1) in admitting evidence of extraneous offenses in the form of possession of short-barrel firearms; (2) in admitting evidence of a prior arrest showing possession of a firearm, knife, brass knuckles and methamphetamine; and (3) by denying a motion to set aside the indictment and discharge for delay. We will overrule these points and affirm the conviction.

FACTUAL BACKGROUND

Appellant does not challenge the sufficiency of evidence, therefore only a brief description of facts is needed. In March 1996 the bodies of John Patrick Lamb and Kelly Dougherty, the woman with whom he lived, were found at their rural mobile home in Comal County. As Sheriff's deputies were investigating the scene, appellant drove up in a pickup truck. A search of his pickup truck revealed a .38 caliber revolver with a shortened barrel, which tests revealed to be the murder weapon. The deputies also found several items of Lamb's property in appellant's possession: the keys to his residence, his .44 caliber handgun, his portable phone, a red metal security box in which Lamb kept valuables including drugs and money, and Lamb's briefcase containing important records. Appellant also had taken a Toyota pickup truck belonging to Lamb. When he was arrested, appellant told the deputies that he knew about the bodies. While being booked into the jail, appellant volunteered that he had been present when Lamb shot Dougherty and then killed himself. He also volunteered to a corrections officer that he had witnessed a murder-suicide. At trial, the medical examiner testified about the location and angle of the entry wound on Lamb's head, estimated the distance from which the shot was fired based on the stippling pattern of the gunpowder residue, and then gave his opinion that the wound was not self-inflicted. The evidence showed that the initial investigators found preparations for disposal of the bodies, including the wrapping of the bodies with one being placed in a large metal pressure tank with the end cut off and with another such container being available for the other body.

Appellant testified at trial that after each of the decedents had been shot in the head in his presence, he did not call for help from emergency medical services or law enforcement, but removed money from Lamb's wallet, searched for and found the red metal box in which Lamb hid his valuables, discovered it to be locked, took the box to his own house in San Antonio and cut the lock off, and took Lamb's truck. He admitted that after Lamb and Dougherty were dead Lamb's friends had called the home to inquire about the whereabouts of Lamb and Dougherty, and appellant lied to them and invented a story that they were on a shopping trip in Del Rio.

A friend and business associate of Lamb's, Valentine Villarreal, described the relationship between appellant, Lamb, and himself. Villarreal related that Lamb had just completed a sale of ten ounces of methamphetamine for $20,000 at the time of his death. Villarreal had introduced appellant to Lamb, and testified that appellant modified firearms as a trade. Appellant was a mechanic and had worked on vehicles and heavy equipment for Lamb.

ADMISSION OF WEAPONS FOUND IN SEARCH OF APPELLANT'S HOME

In his first point of error, appellant contends that the trial court erred by admitting into evidence certain weapons seized in a search of appellant's home shortly after his arrest. The officers were searching for the lock that had been cut off the lockbox appellant had taken from Lamb's property. The weapons were a sawed-off 12 gauge shotgun, a sawed-off .22 rifle and, in a case, two SKS assault rifles, one with a sawed-off barrel, the other with a bayonet and a collapsible stock that converts into a pistol grip. Also in the case were five magazines, each of which would hold fifty rounds of ammunition. Appellant objected on the ground that since the weapons had been modified so as to make them prohibited weapons, admitting them permitted the State to show the commission of an extraneous offense simply to show his character. He contends that this is error under Rule 404(b). Tex. R. Evid. 404(b).

The State contends that this evidence helps counter appellant's defensive theories and explanations of the evidence. Appellant testified that the weapon found in his truck and which was proved to be the murder weapon was not his but belonged to the victim, John Patrick Lamb. The State argues that showing appellant's possession of the prohibited weapons found in his home shows that its theory--that appellant brought the murder weapon with its sawed-off barrel to the murder scene--is more likely and that the evidence shows appellant had access to other illegally modified weapons such as those found. In addition, the State offered the weapons to rebut appellant's witnesses' testimony that he was a peaceable person.

We review a court's ruling on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse such a ruling so long as it falls "within the 'zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). Moreover, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. See Tex. R. Evid. 103(a).

The ownership and possession of the murder weapon, which had been modified by having the barrel shortened, was clearly in dispute. Appellant testified that the gun was Lamb's and that Lamb used it to kill Dougherty and to commit suicide. The State's theory was that appellant brought the gun with him to commit the crime, and killed both people with it. The possession of other similarly modified weapons by appellant could arguably have some bearing on the issue. We conclude that the trial court did not abuse its discretion in admitting the modified weapons which had been found in appellant's home. The first point of error is overruled.

Extraneous Offenses in Rebuttal

In appellant's second point of error, he contends that the trial court erred by overruling his objection to admitting evidence of extraneous offenses that occurred two years before the capital murder for which he was on trial. See Tex. R. Evid.404(b).

As in the point considered above, we review a ruling on admissibility of evidence under an abuse of discretion standard. We will not reverse such a ruling so long as it is within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d at 391.

Over appellant's objection, a deputy sheriff testified that he stopped appellant in 1994 for a traffic offense, and in a search of appellant's automobile, found a sawed-off shotgun, methamphetamine, brass knuckles, a stun gun, pepper spray, and a knife. The State argues that the evidence was properly admitted after appellant testified and denied that he was in possession of a sawed-off shotgun when he was arrested in 1994. The State contends that testimony about the shotgun is proper to directly counter appellant's denial of possessing it, and that it is proper impeachment to show that he is lying or in error in the matter. The State also contends that the other evidence is proper to rebut appellant's witnesses. His wife testified that in the thirty-seven years she had known appellant he had never been violent to anyone and had never been aggressive toward her. His sister testified that appellant is not a violent or aggressive person, but on the contrary, that as a child appellant was passive and peaceful. The State argues that when an accused creates a false impression about his nature as a law abiding citizen or his propensity for committing criminal acts, that he has opened the door for the State to present rebuttal evidence. The State argues that possession of the types of weapons found in the 1994 arrest is inconsistent with the idea of appellant being a peaceable person. The State emphasized at trial that the weapons modifications made by appellant were all done to make it easier to shoot people. The State refers to Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993), in which the court states the rule that "[w]here the witness creates a false impression of law abiding behavior, he 'opens the door' on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood."

On direct examination, appellant had testified that he had used methamphetamine in the past and he acknowledged the arrest in 1994 for possession of methamphetamine and that he had been placed on probation for ten years for that offense. On cross-examination, he admitted that he was found with brass knuckles but denied having a sawed-off shotgun at the time.

Appellant has not separated his objections and arguments on this issue, but joins together his objection to evidence consisting of pictures of the items found in a consensual search of his automobile in 1994. Appellant admitted possessing methamphetamine at that time. He denied possession of a loaded sawed-off shotgun, which is shown in the pictures. Appellant does not make specific arguments about the rest of the weapons in the pictures. We believe that the trial court was acting within his discretion in admitting the evidence of the shotgun as direct rebuttal of appellant's denial of possession of that weapon. As to the other weapons, along with the shotgun, we believe that the trial court did not abuse its discretion in admitting those to rebut the impression appellant presented of himself as a peaceable and law-abiding person. The second point of error is overruled.

Trial Court's Refusal to Dismiss for Delay

In his third point of error, appellant contends that the trial court erred in denying his motion to set aside the indictment and to discharge him because of the delay between his arrest and indictment. He invokes a statutory provision which he contends requires the trial court to dismiss the indictment with prejudice in such circumstances. Appellant refers us to article 32.01 of the Code of Criminal Procedure, and to Norton v. State, 918 S.W.2d 25 (Tex. App.--Houston [14th Dist.] 1996), pet. dism'd improvidently granted, 969 S.W.2d 3 (Tex. Crim. App. 1998). We have previously decided this precise issue adversely to appellant's position. Lopez v. State, No. 3-97-00661-CR (Tex. App.--Austin February 11, 1999, no pet.); Ex parte Crowder, 959 S.W.2d 732 (Tex. App.--Austin 1998, pet. ref'd). The trial court did not err in overruling appellant's motion.

Having overruled appellant's three points of error, we affirm the judgment of the trial court.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers^*

Affirmed

Filed: May 27, 1999

Do Not Publish

^* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

tends that the other evidence is proper to rebut appellant's witnesses. His wife testified that in the thirty-seven years she had known appellant he had never been violent to anyone and had never been aggressive toward her. His sister testified that appellant is not a violent or aggressive person, but on the contrary, that as a child appellant was passive and peaceful. The State argues that when an accused creates a false impression about his nature as a law abiding citizen or his propensity for committing criminal acts, that he has opened the door for the State to present rebuttal evidence. The State argues that possession of the types of weapons found in the 1994 arrest is inconsistent with the idea of appellant being a peaceable person. The State emphasized at trial that the weapons modifications made by appellant were all done to make it easier to shoot people. The State refers to Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993), in which the court states the rule that "[w]here the witness creates a false impression of law abiding behavior, he 'opens the door' on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood."

On direct examination, appellant had testified that he had used methamphetamine in the past and he acknowledged the arrest in 1994 for possession of methamphetamine and that he had been placed on probation for ten years for that offense. On cross-examination, he admitted that he was found with brass knuckles but denied having a sawed-off shotgun at the time.

Appellant has not separated his objections and arguments on this issue, but joins together his objection to evidence consisting of pictures of the items found in a consensual search of his automobile in 1994. Appellant admitted possessing methamphetamine at that time. He denied possession of a loaded sawed-off shotgun, which is shown in the pictures. Appellant does not make specific arguments about the rest of the weapons in the pictures. We believe that the trial court was acting within his discretion in admitting the evidence of the shotgun as direct rebuttal of appellant's denial of possession of that weapon. As to the other weapons, along with the shotgun, we believe that the trial court did not abuse its discretion in admitting those to rebut the impression appellant presented of himself as a peaceable and law-abiding person. The second point of error is overruled.

Trial Court's Refusal to Dismiss for Delay

In his third point of error, appellant contends that the trial court erred in denying his motion to set aside the indictment and to discharge him because of the delay between his arrest and indictment. He invokes a statutory provision which he contends requires the trial court to dismiss the indictment with prejudice in such circumstances. Appellant refers us to article 32.01 of the Code of Criminal Procedure, and to Norton v. State, 918 S.W.2d 25 (Tex. App.--Houston [14th Dist.] 1996), pet. dism'd improvidently granted, 969 S.W.2d 3 (Tex. Crim. App. 1998). We have previously decided this precise issue adversely to appellant's position. Lopez v. State, No. 3-97-00661-CR (Tex. App.--Austin February 11, 1999, no pet.); Ex parte Crowder, 959 S.W.2d 732 (Tex. App.--Austin 1998, pet. ref'd). The trial court did not err in overruling appellant's motion.

Having overruled appellant's three points of error, we affirm the judgment of the trial court.

Mack Kidd, Justice

Before Chief Justice A