Benny L. Cole v. State ( 2009 )

NO. 07-07-0476-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 16, 2009

______________________________

BENNY L. COLE, JR.,

                                                                                      Appellant

v.

THE STATE OF TEXAS,

                                                                                      Appellee

_________________________________

FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-415,498; HON. JIM BOB DARNELL, PRESIDING

                                      _______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Benny L. Cole, Jr. (appellant) appeals his conviction for murder and asserts that the trial court erred in excluding evidence concerning the victim’s propensity towards violence. That evidence encompassed proof that the victim had twice been arrested for domestic violence, had been convicted of aggravated robbery, and purportedly had gang tattoos on his body. Because of the court’s supposed error, appellant was allegedly prevented from presenting a defense in violation of the United States Constitution. We disagree, overrule the issues and affirm the judgment.

          That appellant stabbed his victim is undisputed. However, the act was purportedly justified under the theory of self-defense, according to appellant. And, in effort to prove that it was, appellant sought to present evidence of the victim’s propensity towards violence. That way he could show that the victim was the first aggressor and that he (appellant) was simply acting to protect himself. Moreover, appellant sought to use the aforementioned evidence for that purpose. Yet, the evidence relating to the domestic violence charges and gang tattoos was excluded. While this is true, the jury was allowed to hear that the victim had been convicted of aggravated robbery. So too did the jury have evidence before it describing how the decedent attacked appellant while the latter slept, and how he kicked, hit, and threatened appellant with further violence during that episode. Also before the jury was evidence that the eventual decedent had a bad temper, the initial attack had ended when a third party twice tried to remove the decedent from appellant’s bedroom and into the kitchen of the house, that appellant was told to leave, that appellant was leaving when the decedent again charged him, and that appellant then stabbed decedent.

          The decedent having beaten appellant while he slept then chased him to the door as he tried to leave is certainly evidence establishing the decedent as the first aggressor. Indeed, the State conceded as much below. More importantly, no one disputed that the victim attacked appellant as he slept or that he chased appellant to the door as appellant tried to leave. Given this, the trial court may well have excluded the additional evidence because it had no relevance apart from its tendency to prove the victim’s character conformity. See Reyna v. State, 99 S.W.3d 344, 346-47 (Tex. App.–Fort Worth 2003, pet. ref’d) (stating that because a victim’s unambiguous, violent or aggressive act needs no explaining, evidence of the victim’s extraneous conduct admitted in conjunction with his unambiguous act would have no relevance apart from its tendency to show the victim’s character conformity, and thus would be inadmissible). And, we cannot say that such a conclusion would have fallen outside the zone of reasonable disagreement. See id. at 346 (holding that the decision to admit or exclude evidence is erroneous if it evinces abused discretion and that its discretion is so abused when the decision falls outside the zone of reasonable disagreement).

          In sum, appellant was not denied opportunity to present a defense. Nor did the trial court abuse its discretion in excluding the evidence in question. Consequently, we affirm the judgment of the trial court.

                                                                           Per Curiam

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oth legally and factually insufficient to support the verdict. This is allegedly so because Wall did not see appellant (but only his acquaintance) draw a weapon, and the trial court did not submit a parties charge. We overrule the issues.

          The record contains evidence that 1) two different caliber of shell casings (.40 and .45) were found at the crime scene, 2) the casings were fired from two different guns, 3) appellant’s girlfriend disclosed to the police a conversation she had with appellant wherein he said he too began firing a weapon, and 4) appellant initially gave a voluntary statement to police wherein he mentioned information unknown to the public. This evidence, when viewed in the light most favorable to the verdict, was and is sufficient to allow the jury to rationally conclude, beyond reasonable doubt, that appellant committed aggravated assault as charged in the indictment.

          In questioning the factual sufficiency of the evidence, appellant suggests his colleague could have wielded both guns given the grouping of the shell casings. While it might be possible for one person to have fired both firearms, the jury also could have inferred lawfully from the evidence that each man carried and fired one. Furthermore, appellant admitted that to his girlfriend. And, though his girlfriend not only gave conflicting statements to police but also tried to blame the shooting on others, her credibility was for the jury to resolve. In sum, we cannot say that the manner in which it resolved the credibility issues and ultimately ruled is clearly against the weight of the evidence or undermines our confidence in the verdict. The evidence is both legally and factually sufficient.

          The judgment of the trial court is affirmed.

                                                                           Brian Quinn

                                                                          Chief Justice

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