William Boyd Porter v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00640-CR
William Boyd PORTER,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4455
Honorable Jefferson Moore, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: November 28, 2018
AFFIRMED
William Boyd Porter was convicted by a jury of murder. On appeal, Porter contends the
trial court abused its discretion in excluding evidence of two extraneous, specific bad acts
committed by the complainant. We affirm the trial court’s judgment.
BACKGROUND
Porter’s daughter Brittany testified she met the complainant Trayvouns Edwards at a mall
on December 21, 2015, and left the mall with him to smoke marijuana. Brittany accompanied
Edwards to an apartment complex where he broke into a vacant apartment. Although Brittany
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testified she initially engaged in consensual sex with Edwards, she then described how Edwards
violently prevented her from leaving the apartment, beat her, and raped her. She also explained
the reasons she remained with Edwards over the course of the next four days despite opportunities
she had to inform others about Edwards preventing her from leaving. Over the course of those
days, Brittany travelled with Edwards on public transportation and was introduced to Edwards’s
family and friends. She further described, however, the manner in which Edwards continued to
beat and rape her. Brittany testified she finally convinced Edwards to allow her to use her cell
phone on Christmas Day to phone her cousin. When she spoke with her cousin, she told him she
was being beaten and held against her will. Brittany told her cousin to call Porter and have him
track her cell phone and get her. On cross-examination, Brittany was questioned regarding the
reasons she never told anyone she was being held hostage and about inconsistencies in her
testimony and contradictions between her testimony and other evidence, including phone records
showing texts and phone calls from her cell phone to Porter.
Porter testified he received a phone call on Christmas Day from another cousin Harold
Coleman who informed him a man was beating Brittany and would not allow her to leave. Porter’s
wife began efforts to track Brittany’s cell phone. Porter picked up Coleman and two other men to
search for Brittany. Porter also picked up his gun from Coleman’s home. Porter’s wife was able
to phone Porter with a location for Brittany’s cell phone.
Eventually, Porter pulled up to a gas station where he saw Brittany walking with Edwards.
Coleman approached Edwards from behind and asked if he was beating Brittany. Video from the
gas station showed Coleman aggressively approaching Edwards who punched Coleman. As
Brittany ran to Porter’s truck, Edwards saw Porter approaching with a gun and tried to run away.
Porter caught him and pushed him against a gas pump. With Porter’s gun trained on his back,
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Porter shot Edwards from behind as Edwards began walking back toward Porter’s truck. Porter,
Brittany, and the other men fled the scene. Edwards died at the scene.
When Porter was later brought to the police station for questioning several days later, he
denied any involvement until he was shown still photographs obtained from the video of the
incident. Porter told the interviewing detective he would return the following day to explain what
had occurred; however, Porter never returned.
Porter was subsequently indicted for murder. At trial, Porter’s defensive theory was
defense of a third person, contending he shot Edwards to protect Brittany because Edwards made
an aggressive movement toward Brittany while she was standing by Porter’s truck.
During trial, defense counsel sought to introduce the testimony of two women. One woman
would testify that in 2008, Edwards dragged her into a house, raped her, and would not allow her
to leave. The other woman would testify that in 2012, Edwards beat her and prevented her from
leaving an apartment for three days before she was able to run to the leasing office and call police.
The trial court excluded the evidence.
The jury charge contained an instruction on defense of a third party. The jury rejected
Porter’s defensive theory and convicted him of murder. However, based on the jury’s finding that
Porter caused Edwards’s death under the immediate influence of sudden passion arising from an
adequate cause, the jury assessed the minimum sentence of fifteen years’ imprisonment. The trial
court sentenced Porter in accordance with the jury’s verdict, and Porter appeals.
STANDARD OF REVIEW
“We review the trial court’s decision to admit or exclude evidence, as well as its decision
as to whether the probative value of evidence was substantially outweighed by the danger of unfair
prejudice, under an abuse of discretion standard.” Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.
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Crim. App. 2018). “A trial court abuses its discretion when its decision lies outside the zone of
reasonable disagreement.” Id.
DISCUSSION
In his two issues on appeal, Porter contends the trial court abused its discretion in excluding
the testimony of the two witnesses regarding the extraneous, specific bad acts committed by
Edwards. Porter contends the evidence was admissible: (1) to rebut the State’s contention that
Brittany fabricated her testimony; and (2) to show Edwards was the first aggressor in support of
Porter’s defensive theory.
A. General Law Regarding Admissibility of Other Crimes, Wrongs, or Acts
Under rule 404(b) of the Texas Rules of Evidence, evidence of other crimes, wrongs, or
acts “is not admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with [that] character.” TEX. R. EVID. 404(b)(1). However, “[t]his
evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. 404(b)(2).
The list of permitted uses and exceptions in rule 404(b) is illustrative but not exhaustive. De La
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “The rule excludes only that evidence
that is offered (or will be used) solely for the purpose of proving bad character and hence conduct
in conformity with that bad character.” Id. “The proponent of uncharged misconduct evidence
need not ‘stuff’ a given set of facts into one of the laundry-list exceptions set out in Rule 404(b),
but he must be able to explain to the trial court, and to the opponent, the logical and legal rationales
that support its admission on a basis other than ‘bad character’ or propensity purpose.” Id.
B. Admissibility of Evidence in Response to Brittany’s Testimony
At trial, defense counsel argued the evidence of the extraneous, specific bad acts by
Edwards was being offered “as essentially rebuttal” because the State in their cross-examination
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“indicated to the jury that [Brittany] had fabricated her story.” In support of this argument, defense
counsel cited a case holding extraneous offense evidence is admissible to rebut a defensive theory
of fabrication. See Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). In response to this
argument, the State asserted:
Again, the victim is not on trial for whether or not he committed the sexual assault
of Brittany. The defendant is on trial for murder. The only purpose of putting on
the evidence that defense counsel is asking the Judge to allow is to make the jury
hate the victim and nullify this jury in regards to this defendant’s guilt in regards to
the murder. They’re trying to bolster Brittany’s testimony, and that is not the reason
that you can allow in specific acts of extraneous offenses.
In ruling the evidence was not admissible, the trial court reasoned:
Here, I think the — the proffered evidence is of other crimes, wrongs, or acts
of the decedent in this case. That’s not — I don’t think it’s — I don’t think it’s
probative. I think it’s more prejudicial. I understand that you’re offering it to —
to show it more for the — to rebut the defensive — well, normally the defensive
theory of fabrication or frame-up or retaliation. Now, it’s the — the State’s theory
or something.
But I think the other concern I have is — is that the defense is the one that put
this witness on, and she wasn’t consistent. So now it — the defense is saying that
opens the door for us to put on all these other witnesses, and I don’t think that’s the
intent of the law or the intent of the — the Rules. I mean, I think that would — I’m
not saying that this defense team did this, but it could open up the door for — if I
were to rule that way, it could open up the door for other defense teams to come in,
put on a terrible witness to begin with, and then say, Judge, now it’s opened the
door because the State has done a good job of cross-examining our witness, and
now we’re going to put in all these other witnesses to bring in through a back door,
I think, of 404(b) evidence.
In support of his assertion that the evidence was admissible to rebut the State’s contention
that Brittany fabricated her testimony, Porter cites numerous cases holding extraneous offense
evidence is admissible to rebut a defensive theory that the complainant fabricated allegations
against the defendant. E.g., Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Bass,
270 S.W.3d at 563; De La Paz, 279 S.W.3d at 346-47. In this case, however, Porter did not seek
to introduce the evidence to rebut such a defensive theory. Instead, Porter sought to introduce the
extraneous bad acts to bolster Brittany’s testimony regarding the events occurring prior to the
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murder because the State’s cross-examination challenged Brittany’s credibility regarding those
events. Accordingly, the cases cited by Porter do not support his argument.
In addition, under the case law cited by Porter, “the defensive theory that the State wishes
to rebut through the use of extraneous offense evidence must be elicited on direct examination by
the defense and may not be elicited by ‘prompting or maneuvering’ by the State.” Wheeler v.
State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002). This is the law the trial court alluded to in its
ruling, suggesting the defense cannot “back door” the admissibility of extraneous offense evidence
by calling a witness whose credibility is subject to challenge and then seeking to use extraneous
offense evidence to bolster the witness’s credibility.
Fundamentally, however, the Texas Court of Criminal Appeals has recognized a distinction
between a general attack on a witness’s credibility, which does not allow for rebuttal with
extraneous offense evidence, and a fabrication defense. See De La Paz, 279 S.W.3d at 346 n.32;
see also Banks v. State, 494 S.W.3d 883, 893 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(noting in admitting extraneous offense evidence to rebut defensive theory of fabrication “[t]he
court determined that by advancing these theories appellant went beyond attacking the
complainant’s credibility”); Martinez v. State, No. 03-14-00106-CR, 2016 WL 806718, at *3 n.5
(Tex. App.—Austin Feb. 24, 2016, no pet.) (not designated for publication) (recognizing
distinction between attack on credibility and fabrication defense); Moore v. State, No. 04-12-
00043-CR, 2013 WL 86592, at *2 (Tex. App.—San Antonio Jan. 9, 2013, pet. ref’d) (not
designated for publication) (same). In the instant case, the State’s cross-examination was a general
attack on Brittany’s credibility. Accordingly, the trial court did not abuse its discretion in
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excluding the extraneous, bad acts under the arguments advanced in Porter’s first issue, and
Porter’s first issue is overruled. 1
C. First Aggressor
In his second issue, Porter contends the evidence of the extraneous, bad acts by Edwards
was admissible to show Edwards was the first aggressor in support of Porter’s defensive theory.
At trial, defense counsel argued the evidence was admissible “because we’ve made a prima facie
case of defense of third person and because Mr. Porter testified to an act of aggression by Mr. —
by the decedent.” In response, the State argued “any belief that [Edwards] was being aggressive
is preposterous. He is walking. He is being ordered. It is very clear from the video. Just because
the defendant gets on the stand and lies about what is — is happening, we can see with our own
eyes what is happening on that video.” The State further argued the evidence was so prejudicial
the State could not get a fair trial if the evidence was admitted. After hearing the arguments, the
trial court ruled the evidence was inadmissible, noting the video established the first aggression
was by Coleman, Brittany’s cousin who accompanied Porter to the scene.
When a defendant in a homicide prosecution raises the issue of defense of third person, he
may introduce evidence of specific acts of violence by the deceased to demonstrate the deceased
was the first aggressor. Torres v. State, 117 S.W.3d 891, 894 (Tex. Crim. App. 2003). “However,
such specific acts of violence are admissible only to the extent that they are relevant apart from
showing character conformity.” Id. In the context of proving the deceased was the first aggressor,
“[t]here must be some evidence of aggression by the deceased during the events that gave rise to
1
Even if the trial court erred in excluding the evidence under rule 404(b), it would not have abused its discretion in
excluding the evidence under rule 403 because: (1) the evidence was not compelling in serving to make a fact of
consequence more or less probable because the evidence related to events preceding the murder; (2) the evidence had
the potential to improperly focus the jury on Edwards’s bad character; (3) the evidence would distract the jury from
consideration of the murder offense; and (4) the video was the best evidence of the actual events of consequence to
Porter’s assertion of defense of a third party. See De La Paz, 279 S.W.3d at 348-49 (listing factors trial court must
consider in a rule 403 balancing test).
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the criminal charges in the case before the defendant may introduce evidence of a prior specific
violent act that tends to explain the deceased’s later conduct.” Id. at 895. “[T]he key is that the
proffered evidence explains the deceased’s conduct.” Torres v. State, 71 S.W.3d 758, 762 (Tex.
Crim. App. 2002). “As long as the proffered violent acts explain the outward aggressive conduct
of the deceased at the time of the killing, and in a manner other than demonstrating character
conformity only, prior specific acts of violence may be admitted even though those acts were not
directed against the defendant.” Id.
In this case, the testimony by Porter and Brittany describing Edwards as aggressively
moving toward Brittany is contradicted by the video of the incident which shows Edwards walking
in the direction of Porter’s truck only after Porter prevented Edwards from running away and while
Porter was holding the gun and walking directly behind Edwards. Nevertheless, even if this
testimony was some evidence of aggression, the evidence of the extraneous, bad acts Porter sought
to have admitted did not explain Edwards’s conduct. From the proffer and counter-proffer, the
trial court could have believed the evidence would not have established that Edwards took any
aggressive action toward the two women after someone had intervened and separated him from
the women. 2 Because the key to the admissibility of the evidence is that it explain the deceased’s
conduct, and the trial court could have believed the evidence would not explain Edwards’s
conduct, the trial court did not abuse its discretion in excluding the evidence. 3 Porter’s second
issue is overruled.
2
During defense counsel’s proffer regarding the 2012 incident, he stated the witness would testify Edwards tried to
push past the police to get at the witness; however, in its counter-proffer, the State contended the report of the
responding officers stated Edwards was not present when they arrived but was taken into custody without incident
when the witness pointed him out as they were about to drop her off. In the proffer regarding the 2008 incident,
defense counsel never stated Edwards took any aggressive action after being separated from the witness.
3
Even if the trial court erred in excluding the evidence, the trial court would not have abused its discretion in excluding
the evidence under rule 403 because of its potential to confuse the issues. Furthermore, the exclusion of the evidence
did not result in harm because the video of the incident allowed the jury to determine whether Edwards was the first
aggressor. See TEX. R. APP. P. 44.2(b).
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CONCLUSION
The trial court’s judgment is affirmed.
Irene Rios, Justice
DO NOT PUBLISH
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