Asim Shakur Rahim v. State ( 2015 )


Menu:
  •                                                                                ACCEPTED
    06-14-00147-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    1/25/2015 3:24:57 PM
    DEBBIE AUTREY
    CLERK
    NO. 06-14-00147-CR
    IN THE                     FILED IN
    6th COURT OF APPEALS
    SIXTH COURT OF APPEALS           TEXARKANA, TEXAS
    1/27/2015 3:24:57 PM
    AT TEXARKANA, TEXAS
    DEBBIE AUTREY
    _______________________                 Clerk
    Asim Shakur Rahim,
    Appellant,
    v.
    The State of Texas,
    Appellee.
    _______________________________
    On Appeal from the
    County Court at Law, Lamar County, Texas
    Hon. Bill Harris, Presiding
    _______________________________
    APPELLANT’S BRIEF
    Don Biard
    State Bar No. 24047755
    Counsel for Appellant
    ORAL ARGUMENT NOT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    Defendant Below
    Appellant in this Court
    Randyael Dontrell Tyson
    Counsel for Appellant:
    Don Biard                             (on appeal)
    State Bar No. 24047755
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Email: dbiard@att.net
    Quincy Smith Brannan                 (at trial)
    State Bar No. 24077576
    3140 Clark Lane
    Paris, Texas 75460
    Tel: (903)715-4401
    Fax: (469)547-0686
    Appellee in this Court
    The State of Texas
    Counsel for Appellee:
    Gary Young
    Lamar County Attorney’s Office
    119 N. Main Street
    Paris, Texas 75460
    Tel: (903)737-2458
    Fax: (903)737-2455
    1
    TABLE OF CONTENTS
    Identity of Parties and Counsel………………..........………………………………1
    Table of Contents………………………..........…………………………………….2
    Index of Authorities………………......………………………………………….....3
    Issues Presented…………………………………………………………….………4
    Summary of the Argument........................................................................................4
    Statement of the Case………………………………….…………………………...5
    Procedural History………………………....…………………………………….....6
    Facts…………...…………..……………………………………………………..7-8
    Argument and Authorities……………………......…………………….…….....9-17
    Prayer……………………..……………………………………………………….18
    Certificate of Service…………………......…………………………………..…...19
    Certificate of Compliance With Rule 9.4(i)(3)........................................................20
    INDEX OF AUTHORITIES
    Caselaw
    Brown v. State, 
    477 S.W.2d 617
    (Tex. Crim. App. 1972).......................................12
    De La Paz v. State, 
    279 S.W.3d 336
    (Tex. Crim. App. 2009)................................10
    Harrison v. State, 
    241 S.W.3d 23
    (Tex. Crim. App. 2007).....................................12
    Jiminez v. State, 
    32 S.W.3d 233
    (Tex. Crim. App. 2000).........................................9
    Matthews v. State, 
    979 S.W.2d 720
    (Tex. Crim. App. – Eastland 1998)...........10,13
    Montgomery v. State, 
    810 S.W.2d 372
    (Tex. Crim. App. 1991)............................16
    Tate v. State, 
    981 S.W.2d 189
    (Tex. Crim. App. 1998).........................................14
    Thang Cuong Ngo v. State, 
    175 S.W.3d 738
    (Tex. Crim. App. 2005).....................9
    U.S. v. Thomas, 
    134 F.3d 975
    (9th Cir. 1998).........................................................14
    Warner v. State, 
    245 S.W.3d 458
    (Tex. Crim. App. 2008).............................9,15,16
    Wilson v. State, 
    71 S.W.3d 346
    (Tex. Crim. App. 2002)........................................12
    Woodard v. State, 
    322 S.W.3d 648
    (Tex. Crim. App. 2010)....................................9
    Statutes and Rules of Evidence
    Tex. Pen. Code §22.01...............................................................................................6
    Tex. R. Crim. Pro. Art. 103.001..............................................................................17
    Tex. R. Evid. 404.....................................................................................................10
    Tex. R. Evid. 405................................................................................................10,14
    Secondary Sources
    Goode, Wellborn, & Sharlot, Guide to the Texas Rules of Evidence: Civil and
    Criminal §405.2 (2d Ed. 1993)................................................................................14
    3
    SUBJECT MATTER OF ISSUES PRESENTED
    I. Whether the trial court erred in instructing the jury that it could consider
    evidence of extraneous offenses as evidence of Appellant’s character.
    II. Whether the evidence is sufficient to support the trial court’s order
    requiring Appellant to pay costs of court.
    SUMMARY OF THE ARGUMENT
    First, over defense objection, the trial court allowed the state to cross examine
    Appellant about prior instances of assault. The trial court then instructed the
    jury that it could consider those prior bad acts for the purpose of showing
    Appellant’s character for being a peaceable or law abiding person. Evidence
    of prior bad acts may be properly considered for some purposes, such as to
    prove intent or motive. However, it may not be considered by the jury to
    prove Appellant’s character. Accordingly, the trial court erred in instructing
    the jury that it could do so.
    Second, there is insufficient evidence to support the trial court’s order
    requiring Appellant to pay costs of court. The trial court ordered Appellant
    to pay $302.00 in costs of court. However, the record does not contain a
    certified bill of costs. Without a certified bill of costs Appellant cannot be
    required to pay costs of court.
    4
    STATEMENT OF THE CASE
    Nature of the Case:          Plea of Not Guilty to One Charge of Assault
    Trial Court:                 The Honorable Bill Harris
    County Court at Law, Lamar County, Texas
    Trial Court Disposition:     A jury convicted Appellant and sentenced
    Appellant to a 365 day jail term.
    5
    PROCEDURAL HISTORY
    On April 2, 2014, Asim Shakur Rahim was charged by information with
    Assault.1 The offense is a Class A misdemeanor.2 Jury selection was held on
    August 5, 2014 and the case was tried to the jury on August 13, 2014. The jury
    found Rahim guilty of the charged offense and sentenced him to 365 days in jail.3
    The trial court ordered that Rahim also pay $302.00 in costs of court.4 Rahim
    timely filed a notice of appeal.5
    1
    CR, pg. 5
    2
    Tex. Pen. Code §22.01
    3
    CR, pg. 61
    4
    CR, pg. 64
    5
    CR, pg. 65
    6
    FACTS
    Paris Police officers responded to a report of a disturbance at a convenience
    store in Paris, Texas.6 Appellant, Asim Rahim, another man, Larry Solomon, and
    other bystanders were standing outside the store.7 Officers interviewed Solomon.
    He said that he was inside the store when Rahim came in and asked him to go
    outside where they could talk. Once outside, Solomon said that Rahim accused
    him of having an affair with his wife. Solomon denied having an affair. At some
    point a fight ensued, Rahim punched Solomon, and threw him to the ground.8
    The officers also interviewed Rahim. Rahim said that he was inside the
    store when Solomon arrived and asked him to go outside to talk. At some point,
    Solomon began acting aggressively and pointed his fingers in Rahim’s face. So,
    Rahim hit him.9
    Rahim testified at trial. He admitted that he had punched Solomon and that
    they had gone to the ground in a struggle. He testified that he punched Solomon in
    self-defense after Solomon “stepped up and pointed with his finger” in Rahim’s
    face.10 Rahim also testified that he knew Solomon carried a pistol and was afraid
    that Solomon would shoot him.11
    6
    RR, pg. 31
    7
    RR, pg. 31
    8
    RR, pg. 32
    9
    RR, pg. 38
    10
    RR, pg. 225
    11
    RR, pg. 225
    7
    After direct examination during Rahim’s testimony, the state asked the trial
    court for permission to bring up prior instances of assault that Rahim had allegedly
    committed.12 After some discussion outside the presence of the jury, the trial court
    permitted the state to do so.13
    During Rahim’s cross examination, the state questioned him about a Class C
    misdemeanor assault to which Rahim had plead guilty and another assault charge
    that had ultimately been dismissed.14
    The jury ultimately convicted Rahim of the charged offense and sentenced
    him to serve 365 days in jail.
    12
    RR, pg. 241
    13
    RR, pg. 243
    14
    RR, pgs. 245-246
    8
    ARGUMENT AND AUTHORITIES
    Issue No. 1 Restated: The trial court erred when it instructed the jury that it
    could consider evidence of Appellant’s prior bad acts as evidence of
    Appellant’s character.
    Standard of Review
    When there is error in the jury charge and there is a timely objection to the
    charge, reversal is require if there is “some” harm.15 Where there is no timely
    objection, reversal is required if there is “egregious” harm. 16 Errors that result in
    egregious harm are those that affect “the very basis of the case,” “deprive the
    defendant of a valuable right,” or “vitally affect a defensive theory.”17
    Analysis
    a. The primary defense theory at trial was that Rahim acted in self-defense
    There was no dispute at trial that Rahim and the alleged victim, Solomon,
    were in an altercation. The defense theory at trial, however, was that Rahim had
    acted in self defense to protect himself from Solomon’s aggressive actions.
    Rahim testified in his own defense during guilt/innocence phase. During
    cross-examination, the state asked the court for permission to inquire into Rahim’s
    15
    Woodard v. State, 
    322 S.W.3d 648
    , 659 (Tex. Crim. App. 2010)
    16
    Woodard v. State at 659; Jiminez v. State, 
    32 S.W.3d 233
    , 238 (Tex. Crim. App. 2000)
    17
    Warner v. State, 
    245 S.W.3d 458
    , 462 (Tex. Crim. App. 2008); Thang Cuong Ngo v. State,
    
    175 S.W.3d 738
    , 750 (Tex. Crim. App. 2005)
    9
    past instances of aggressive conduct. The state told the court that Rahim had
    previously been convicted of a Class C misdemeanor Assault.
    After some discussion, the trial court permitted the state’s inquiry. 18 The
    trial court stated, “I believe the Defendant’s character for being a peaceful and law-
    abiding citizen is in issue and considering the self-defense claim, the State offering
    this evidence under 404 and 405, I believe that it is in fact relevant.”19
    During its cross examination of Rahim, the state asked the following:
    Q. Mr. Rahim, you have committed violent acts in the past, haven’t you.
    A. Well, I wouldn’t call them violent but I - - according to the charges,
    ma’am, whatever you got me charged for.
    Q. So is that a yes?
    A. No, because it wasn’t violent. That really wasn’t about my wife. It was
    my daughter.
    Q. In 2007 did you plead guilty to a Class C assault?
    ....
    Q. ...Did you plead guilty?
    A. Yes, ma’am. I pleaded guilty.
    ....
    Q. So this is the only time you ever hit anybody in your family?
    18
    RR, pgs. 238-244
    19
    RR, pg. 243
    10
    A. No. I hit my son once, too, in his whole life. Think I choked - - you see
    how big he was, I couldn’t choke him out.
    Before closing arguments in the guilt/innocence phase, the trial court
    instructed the jury. The trial court’s instructions included:
    The State has introduced evidence of extraneous crimes or bad acts
    other than the one charged in the Information in this case. This
    evidence was admitted only for the purpose of assisting you, if it does,
    for the purpose of showing the Defendant’s motive, opportunity,
    intent, plan, knowledge in this case or his character for being a
    peaceable or law abiding person.”20
    b. Specific instances of prior bad acts can be used as evidence of motive,
    intent, plan, etc.
    As noted above, the trial court instructed the jury that it could consider
    evidence of Rahim’s prior bad acts as evidence of the “Defendant’s motive,
    opportunity, intent, plan, knowledge...”21 The evidence of Rahim’s prior offense is
    permitted to serve as evidence of these factors.22 The trial court’s instructions on
    this issue were not in error.
    c. Specific instances of prior bad acts cannot be used as evidence of character.
    Evidence of an extraneous crime or bad act “is not admissible to prove the
    character of a person in order to show that he acted in conformity therewith.”23
    20
    CR, pg. 55 (emphasis added)
    21
    CR, pg. 55
    22
    Tex. R. Evid. 404(b); De La Paz v. State, 
    279 S.W.3d 336
    , 343 (Tex. Crim. App. 2009).
    23
    Tex. R. Evid. 404(b); Matthews v. State, 
    979 S.W.2d 720
    , 722 (Tex. Crim. App. – Eastland
    1998).
    11
    One of the reasons for allowing the state to inquire into Rahim’s prior bad
    acts was that the court determined Rahim had testified that he was a peaceful and
    law abiding person.24 As noted above, the trial court’s instructions stated, in part,
    that the jury could consider Rahim’s prior bad acts as evidence of his “character
    for being a peaceable or law abiding person.”25
    When admissible, proof of a defendant’s character may only be shown
    through opinion or reputation evidence.26 The only way the state may attempt to
    prove the defendant’s character is to present its own witnesses to testify as to either
    their opinion of the defendant’s character or the reputation of the defendant’s
    character in the community.
    The state may cross examine defense character witnesses with “did you
    know” or “have you heard” type questions regarding specific instances of the
    defendant’s conduct.27 When cross examining a defense witness with these types
    of questions, the purpose is not to prove the defendant’s character – that may only
    be done though reputation or opinion evidence – but to impeach the character
    witness’s testimony.28
    24
    RR, pg. 243
    25
    CR, pg. 55
    26
    Harrison v. State, 
    241 S.W.3d 23
    , 25 (Tex. Crim. App. 2007); Brown v. State, 
    477 S.W.2d 617
    , 620 (Tex. Crim. App. 1972).
    
    27 Wilson v
    . State, 
    71 S.W.3d 346
    , 350 (Tex. Crim. App. 2002).
    28
    See Harrison at 25
    12
    An instructive case on this issue is Matthews v. State.29 Matthews was
    accused of injuring his daughter resulting in her hospitalization and was ultimately
    convicted of causing serious bodily injury to a child. At trial, Matthews presented
    several witness to testify that he was a nonviolent, peaceable and truthful person.
    The state was allowed to rebut this testimony through one of Matthew’s former
    high school teachers. The teacher testified that while Matthews was in high school
    he had hit another student with a stool.30
    The court of appeals held that the trial court abused its discretion in allowing
    this testimony. It stated:
    Evidence of an extraneous crime or bad act “is not admissible
    to prove the character of a person in order to show that he acted in
    conformity therewith”; but such evidence may be admissible for other
    purposes, such as showing motive, intent, or identity. Inquiry into
    specific instances of conduct is permissible on cross-examination of a
    character witness; however, proof of such specific instances of
    conduct is not admissible unless character or a character trait is an
    essential element of the charge, claim, or defense.31
    29
    Matthews v. State, 
    979 S.W.2d 720
    (Tex. App. – Eastland 1998).
    30
    
    Id. at 722
    31
    
    Id. 13 c.
    Character is not an essential element of the defense of self-defense.
    “In cases in which a person’s character or character trait is an essential
    element of a charge, claim or defense, proof may also be made of specific
    instances of that person’s conduct.”32 However, in criminal cases, character is
    almost never an essential element of a charge or defense.33 The rare exception is
    the defensive theory of entrapment where some courts have held that evidence of
    the defendant’s predisposition is admissible under certain circumstances.34
    At trial, one of the reasons offered by the state for the introduction of
    Rahim’s prior offenses was that it was admissible under Tex. R. Evide. 405(b)
    because his character was an essential element of the charge or defense.35
    However, even though Rahim introduced a self-defense theory at trial, his
    character as a peaceable or law abiding person was not an essential element of the
    defense of self-defense. Accordingly, the state was not allowed to prove his
    character through specific instances of prior bad acts under Tex. R. Evid. 405(b).
    32
    Tex. R. Evid. 405(b)
    33
    Tate v. State, 
    981 S.W.2d 189
    , 193, note 5 (Tex. Crim. App. 1998), citing Goode, Wellborn,
    & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal §405.2 (2d Ed. 1993)
    
    34 U.S. v
    . Thomas, 
    134 F.3d 975
    , 980 (9th Cir. 1998).
    35
    RR, pg. 241
    14
    d. Because Rahim’s character was not an essential element of the charge or
    his defense, the trial court erred instructing the jury it could consider specific
    instances of prior bad acts as evidence of his character.
    As shown, there were only two permissible uses at trial for the evidence
    concerning Rahim’s prior bad acts. One was to show Rahim’s motive or intent.
    The other was to impeach Rahim’s own testimony concerning his character. It was
    not permissible to use these specific instances as evidence of Rahim’s character
    itself. Accordingly, the trial court erred in instructing the jury it could do so.
    e. The trial court’s erroneous jury instruction caused “egregious harm” to
    Rahim’s case.
    Rahim did not object at trial to the court’s proposed jury instruction.36
    Accordingly, this court must review the trial court’s error under the more rigorous
    “egregious harm” standard.37
    The trial court’s error caused Rahim egregious harm because it went to the
    very heart of the case. It was uncontested at trial that Rahim had been in an
    altercation with Solomon. The only issue was whether or not Rahim did so in self-
    defense.
    Allowing the jury to consider his past bad acts, including a prior conviction,
    as prima facie evidence that Rahim was a violent person struck a serious blow to
    36
    RR, pg. 256
    37
    Warner v. State at 462
    15
    his claim of self-defense. The trial court’s erroneous charge also violated the long-
    standing fundamental principle that evidence of an extraneous crime is not
    admissible to prove the character of defendant “in order to show that he acted in
    conformity therewith.”38
    The trial court’s error went to “the very basis of the case” and was served to
    “vitally affect a defensive theory”, namely the defense’s theory of self-defense.39
    Accordingly, the trial court’s error resulted in egregious harm to Rahim’s case.
    38
    Montgomery v. State, 
    810 S.W.2d 372
    , 387 (Tex. Crim. App. 1991).
    39
    Warner v. State, 
    245 S.W.3d 458
    , 462 (Tex. Crim. App. 2008).
    16
    Issue No. 2 Restated: The record does not contain a certified bill of costs,
    therefore, Rhaim cannot be made to pay costs of court.
    Tex. Code of Crim. Pro. Art. 103.001 states:
    A cost is not payable by the person charged with the cost until a
    written bill is produced or is ready to be produced, containing the
    items of cost, signed by the officer who charged the cost or the officer
    who is entitled to receive payment for the costs.
    The trial court’s judgment orders Rahim to pay costs of court in the amount
    of $302.00.40 The record in this case does not contain a certified bill of costs.
    Accordingly, the evidence is insufficient to support the trial court’s judgment in
    this regard and Tyson cannot be charged with these costs.
    CONCLUSION
    The trial court erred in instructing the jury that evidence of Rahim’s prior bad acts
    could be considered as evidence of his character as a peaceable or law-abiding
    person. This error directly affected the vital defense theory of self-defense and
    went to the very basis of the defense case at trial. Accordingly, the trial court’s
    error resulted in egregious harm to Rahim. Because of this, the judgment below
    should be reversed and remanded to the trial court.
    40
    CR, pg. 73
    17
    PRAYER
    Appellant asks this court to reverse the judgment below and remand to the trial
    court for a new trial. If the judgment below is not reversed in its entirety,
    Appellant asks this court to modify the judgment to remove the requirement that
    Rahim pay $302.00 in costs of court.
    Respectfully Submitted,
    /s/ Don Biard
    ____________________________
    Don Biard
    State Bar No. 24047755
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Email: dbiard@att.net
    Counsel for Appellant
    18
    CERTIFICATE OF SERVICE
    I certify that on January 26, 2015 a copy of the foregoing Appellant’s Brief was
    served to the following parties by hand delivery and email.
    /s/ Don Biard
    ___________________________
    Don Biard
    Attorney for Appellee:
    Gary Young
    Lamar County Attorney’s Office
    19
    CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
    PROCEDURE 9.4(i)(3)
    TO THE HONORABLE COURT OF APPEALS:
    Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
    Counsel for Appellant files this certification that Appellant’s brief is a computer-
    generated document that contains 3,083 words. Counsel further certifies that he
    relied on the word count of the computer program used to prepare this document.
    Respectfully submitted,
    ___/s/Don Biard___________________________
    DON BIARD
    State Bar No. 24047755
    McLaughlin, Hutchison & Biard
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Attorney for Appellant
    20