Dlijawon McMaryion v. State ( 2021 )

Opinion filed February 4, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00042-CR
__________
DLIJAWON MCMARYION, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR51674
MEMORANDUM OPINION
The grand jury indicted Appellant, Dlijawon McMaryion, for the first-degree
felony offense of aggravated robbery, enhanced by an allegation of a prior
conviction for felony theft. Appellant entered a plea of not guilty to the charged
offense, and the case proceeded to a jury trial. The jury convicted Appellant of the
lesser included offense of aggravated assault with a deadly weapon and assessed his
punishment at twenty years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. The trial court sentenced Appellant accordingly.
In a single issue, Appellant argues that the trial court committed reversible error
when it admitted extraneous evidence of Appellant’s attempted escape. We affirm.
I. Factual Background
On April 4, 2018, Appellant went to the apartment of the victim, Austin
Haynes. Appellant and Haynes had been friends for approximately ten years.
Witnesses presented conflicting testimony as to the reasons for the meeting;
however, Haynes ultimately suffered a gunshot wound to his left leg. Appellant fled
the scene after the shooting.
Officer Aaron Smith of the Midland Police Department was dispatched to the
scene of the shooting. When he arrived at the scene, Officer Smith made contact
with another officer who was already there. Officer Smith found Haynes lying on
the floor just inside the doorway to the apartment, suffering from a gunshot wound
to his left leg. During his discussion with Officer Smith, Haynes identified
Appellant as the shooter. Law enforcement officers later found and arrested
Appellant at a different residence.
Detective Rosie Rodriguez of the Midland Police Department interviewed
Haynes at the hospital. On the day of the shooting, Haynes and Appellant were at
Haynes’s apartment smoking a blunt. At the time, Haynes had $800 in cash that he
had received when he sold a vehicle. Appellant asked Haynes if he had change for
a $100 bill. When Haynes produced the $800 from his pocket to see if he could
make change, Appellant “pulled out the gun and pointed it to [Haynes’s] head.”
Haynes testified that, because he refused to give Appellant the money, Appellant
shot him in his left leg.
Appellant testified at trial and presented a different version of events.
Appellant testified that Haynes contacted him on April 3 via Snapchat for the
purpose of buying marihuana from Appellant. According to Appellant, he went to
Haynes’s apartment the next day to smoke a blunt with him. After they had smoked
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the blunt, Haynes pointed a gun at Appellant and threatened him. Appellant stated
that a struggle over the gun ensued and that the gun discharged. Appellant fled the
scene and went to a house on Pine Street, where the police later arrested him.
During cross-examination, the State questioned Appellant about his guilt for
the charged offense of aggravated robbery. In response, Appellant testified that, if
anything, he was only guilty of “fixing to sell [Haynes] some marijuana.” Based on
this testimony, the State requested permission to offer testimony about Appellant’s
attempted escape from custody, during an earlier pretrial hearing, to show
Appellant’s “consciousness of guilt.” The trial court had previously ruled during the
State’s case-in-chief that such evidence was inadmissible because, on balance, the
prejudicial effect of the evidence outweighed its probative value. However, because
Appellant had testified during the State’s cross-examination that he was “completely
innocent” of the charged offense, the State contended that Appellant had “opened
the door” to the admissibility of his attempted escape. In light of Appellant’s
testimony, the trial court reconsidered its previous ruling, agreed with the State, and
admitted evidence of Appellant’s escape attempt.
II. Standard of Review – Admissibility of Evidence
In Appellant’s sole issue, he challenges the trial court’s final decision to admit
evidence of his attempted escape. See TEX. R. EVID. 403. We review the trial court’s
decision to admit or exclude evidence under an abuse of discretion standard.
Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Coble v. State, 330 S.W.3d 253, 272
(Tex. Crim. App. 2010). This standard of review also applies to a trial court’s
decision to admit or exclude extraneous-offense evidence. De La Paz v. State, 279
S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse a trial court’s decision
to admit or exclude evidence, and there is no abuse of discretion, unless that decision
lies outside the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474,
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478 (Tex. Crim. App. 2018); De La Paz, 279 S.W.3d at 343–44; Martin v. State, 173
S.W.3d 463, 467 (Tex. Crim. App. 2005). Furthermore, we will uphold a trial
court’s evidentiary ruling if it is correct on any theory of law that finds support in
the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex.
Crim. App. 2016); Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim. App.
2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).
III. Analysis
Appellant asserts that the trial court committed reversible error when it
allowed the State to offer evidence of Appellant’s earlier escape attempt solely
because Appellant professed his innocence to the charged offense during the State’s
cross-examination.
As we have noted, the trial court originally ruled that evidence of Appellant’s
attempted escape was inadmissible because, on balance, the prejudicial effect of
admission substantially outweighed any probative value. However, when
responding to the State’s cross-examination, Appellant repeatedly asserted that he
was innocent of the charged offense. The State then re-urged its request to offer
evidence of Appellant’s escape attempt, claiming that, because of his testimony
during cross-examination, Appellant had “opened the door” to the admission of this
evidence. The State contended that the purpose in offering this evidence was to
show Appellant’s “consciousness of guilt.”
The trial court reconsidered its ruling and agreed with the State. The State
proceeded to develop and elicit evidence of Appellant’s prior escape attempt. On
appeal, Appellant contends that the trial court erred when it reconsidered its ruling
and admitted this evidence—effectively penalizing him for professing his innocence
to the charged offense. We disagree.
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A. Opening the Door
We note at the outset that Appellant relies on Shipman v. State, 604 S.W.2d
182, 185 (Tex. Crim. App. [Panel Op.] 1980), and Roberts v. State, 29 S.W.3d 596,
601 (Tex. App.—Houston [1st Dist.] 2000, no pet.), for the proposition that the State,
during its cross-examination, may not by its own prompting or other conduct elicit
evidence from Appellant that would “open the door” to the admission of evidence
that would otherwise be inadmissible. As such, because Appellant has the right to
maintain his innocence throughout the trial, the State could not cause Appellant to
“open the door” to the very evidence that he now claims that the trial court
improperly admitted. Although this proposition may generally be true, the record
before us does not support its application and refutes Appellant’s contention.
Otherwise inadmissible evidence may be admitted if the party against whom
the evidence is offered “opens the door.” Hayden v. State, 296 S.W.3d 549, 554
(Tex. Crim. App. 2009). A party “opens the door” by leaving a false impression
with the jury that invites and permits the other party to present evidence to expose,
correct, or rebut the false impression. Id. As we noted in Kinsey, the concept of
“opening the door” is an aspect of relevancy that can make otherwise nonrelevant
evidence relevant. Kinsey v. State, No. 11-12-00102-CR, 2014 WL 2459690, at *11
(Tex. App.—Eastland May 22, 2014, no pet.) (mem. op., not designated for
publication). Furthermore, “‘[o]pening the door’ or ‘inviting’ testimony that would
otherwise pertain to an inadmissible subject matter does not mean that such
testimony is necessarily ‘invited’ into evidence in any form.” Kipp v. State, 876
S.W.2d 330, 337 (Tex. Crim. App. 1994).
Appellant argues that he was impermissibly prompted by the State during
cross-examination into “opening the door” to the admission of evidence of his escape
attempt. We are not persuaded. To the contrary, Appellant testified during direct
examination and presented a competing factual version as to how Haynes was shot,
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including an assertion of self-defense whereby he claimed that Haynes brandished
the weapon and that the weapon was discharged during their struggle for it.
Appellant also vehemently denied his guilt during his direct examination testimony.
He specifically proclaimed his innocence to the charged offense of aggravated
robbery and testified that he would have pleaded guilty to this offense if he was, in
fact, guilty. Furthermore, during cross-examination, he repeatedly reiterated his
claim of innocence.
We conclude that Appellant’s collective testimony provided a justifiable basis
for the trial court to reasonably determine that Appellant had “opened the door” to
the admission of evidence of his escape attempt. Moreover, the State was entitled
to present evidence to clarify and rebut any false impression that Appellant’s
testimony might have created on that matter.
B. Escape/Flight
There is another theory that supports the trial court’s decision to admit the
evidence of Appellant’s escape attempt.
Rule 404(b) generally prohibits the admission of extraneous-offense evidence
during the guilt/innocence phase of a trial to prove that a defendant committed the
charged offense in conformity with bad character. Devoe v. State, 354 S.W.3d 457,
469 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 404(b)). However, extraneous-
offense evidence may be admissible for other purposes if it has relevance apart from
character conformity. Id.; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.
2003); Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland 2014, pet.
ref’d).
Evidence of escape or flight is an exception to Rule 404(b)’s admissibility
prohibition because such evidence is admissible as a circumstance from which an
inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim.
App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989);
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Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987); Rumbaugh v. State,
629 S.W.2d 747, 752 (Tex. Crim App. 1982); Valdez v. State, 623 S.W.2d 317, 321
(Tex. Crim. App. [Panel Op.] 1981); Holloway v. State, 525 S.W.2d 165, 167–68
(Tex. Crim. App. 1975). Before the evidence of escape from custody or flight is
admissible, it must pertain to and have some legal relevance to the offense under
prosecution. Rumbaugh, 629 S.W.2d at 752; Wockenfuss v. State, 521 S.W.2d 630,
632 (Tex. Crim. App. 1975); Hodge v. State, 506 S.W.2d 870, 873 (Tex. Crim. App.
1974) (op. on reh’g). Thus, to have this evidence excluded, a defendant must
affirmatively show that the escape or flight is directly connected to another
transaction and not to the offense on trial. Wockenfuss, 521 S.W.2d at 632; Hodge,
506 S.W.2d at 873.
Even if its admissibility is not prohibited under Rule 404(b), evidence of flight
or escape may nonetheless be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Because
Rule 403 favors the admissibility of relevant evidence, it is presumed that relevant
evidence will be “more probative than prejudicial.” Montgomery v. State, 810
S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh’g); see also De La Paz, 279
S.W.3d at 343 & n.17. The intent of Rule 403 is not to exclude all evidence that
tends to prejudice the opponent’s case. Davis v. State, 329 S.W.3d 798, 806 (Tex.
Crim. App. 2010). Rather, it only prevents the admission of evidence that promotes
a jury’s decision on an improper basis. Id.; Montgomery, 810 S.W.2d at 389.
Therefore, we must determine how compelling or probative the evidence of escape
is as it concerns a fact of consequence. Montgomery, 810 S.W.2d at 391.
When performing a Rule 403 analysis, a trial court must balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest [a] decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
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issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or repeat evidence already
admitted.
Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (citing Gigliobianco v.
State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). Similarly, in reviewing
the trial court’s determination of whether evidence should be excluded under
Rule 403, we consider the above factors and balance the claimed probative force of
the evidence with the proponent’s need for such evidence. Henley, 493 S.W.3d at
93; Gigliobianco, 210 S.W.3d at 641–42.
In this case, Appellant claims that the trial court erred when it reconsidered its
ruling to exclude evidence of his escape attempt because it had previously
determined that this evidence was, on balance, too prejudicial. This argument fails.
The trial court properly balanced the need for admitting this evidence based on the
state of the evidence that had been presented at the time. Indeed, evidence of escape
or flight, unlike many other extraneous offenses, shows a consciousness of guilt of
the crime for which the defendant is on trial. See Foster, 779 S.W.2d at 859;
Cantrell, 731 S.W.2d at 93; Rumbaugh, 629 S.W.2d at 752; Wockenfuss, 521 S.W.2d
at 632; Hodge, 506 S.W.2d at 873. Such is the case here. Appellant’s attempt to
escape is indicative of his consciousness of guilt of the charged offense, and the jury
was entitled to so infer.
Here, there is no evidence in the record that the admission of this evidence
resulted in or suggested that the jury’s decision was made on an improper basis.
There is no evidence that the admission of this evidence enhanced the jury’s hostility
or sympathy for or against either party. There is no evidence that the admission of
such evidence tended to confuse or distract the jury from ultimately deciding
whether Appellant committed the charged offense or the lesser offense for which the
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jury convicted Appellant. Furthermore, the admitted evidence of Appellant’s escape
attempt was neither repetitive nor cumulative. In fact, there was, at best, only
minimal emphasis of this evidence by the State.
Finally, the trial court included a proper limiting instruction in the jury charge
in which the trial court addressed the jury’s use and consideration of any extraneous-
offense evidence admitted at trial so as to mitigate any potential improper
consideration of this evidence by the jury when it was deciding Appellant’s guilt.
When we review a trial court’s ruling on the admissibility of relevant
evidence, we must give wide latitude to the trial court, particularly in light of the
presumption that the probative value of relevant evidence outweighs the danger of
unfair prejudice. Montgomery, 810 S.W.2d at 389; see De La Paz, 279 S.W.3d at343 & n.17. Evidence of escape from custody has greater probative value than
prejudice and is therefore admissible to show a defendant’s guilt. Havard v. State,
800 S.W.2d 195, 203 (Tex. Crim. App. 1989); Rumbaugh, 629 S.W.2d at 752;
McWherter v. State, 607 S.W.2d 531, 534–35 (Tex. Crim. App. 1980). Here,
Appellant did not dispute the evidence offered by the State of his escape attempt,
nor did he advance any alternative or legitimate reason for his escape attempt that
was not otherwise directly connected with the offense on trial.
IV. Conclusion
We have reviewed the record under the applicable standards of review to
determine whether the trial court abused its discretion when it admitted evidence of
Appellant’s escape attempt. Here, the trial court could have properly determined
that Appellant opened the door to the admission of the evidence. Additionally, it
was within the trial court’s discretion to determine that the probative value of the
evidence that concerned Appellant’s escape attempt substantially outweighed any
unfair prejudice to Appellant. The trial court properly balanced the State’s need for
this evidence, and the record supports the trial court’s decision to admit this evidence
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under either theory addressed above. As such, the trial court’s decision to admit
evidence of Appellant’s escape attempt was not outside the “zone of reasonable
disagreement.” See Bigby, 892 S.W.2d at 884. Therefore, we hold that the trial
court did not abuse its discretion when it admitted this evidence. Accordingly, we
overrule Appellant’s sole issue on appeal.
V. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
February 4, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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