Tibbs, Randy Dale v. State

Affirmed and Majority and Concurring Opinions filed July 17, 2003

Affirmed and Majority and Concurring Opinions filed July 17, 2003.

In The

Fourteenth Court of Appeals

____________

NOS. 14-01-01173-CR and

14-01-01174-CR

____________

RANDY DALE TIBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos.  872,137 and 872,015

C O N C U R R I N G O P I N I O N

I concur in the court=s judgment, but I disagree with the majority=s analysis to the extent it holds the trial court did not err when it admitted evidence of Brown=s skinhead affiliations and racist activities.  This error, however, was harmless.

THE STATE=S EVIDENCE WAS

INADMISSIBLE CHARACTER EVIDENCE

Evidence pertaining to a third person who is not the victim, accused, or a witness, is character evidence subject to Evidence Rule 404 analysis.  See Castaldo v. State, 78 S.W.3d 345, 348B51 (Tex. Crim. App. 2002) (finding rule limiting evidence of other crimes, wrongs, or acts applies not only to accused, but also to third persons).  Evidence that a person is a skinhead or affiliated with a gang is also evidence subject to Evidence Rule 404 analysis.  See Pondexter v. State, 942 S.W.2d 577, 583B84 (Tex. Crim. App. 1996) (gang evidence not relevant under Evidence Rule 401 may not be introduced during guilt/innocence stage if proffered simply to show bad character).

Evidence of Brown=s tattoos and gang-affiliation is properly characterized as character evidence.  As such, it is inadmissible during the guilt/innocence phase of a defendant=s trial unless it is relevant for a Anon-character@ purpose that tends to show commission of the crime. Vasquez v. State, 67 S.W.3d 227, 239B40 (Tex. Crim. App. 2002); see also Tex. R. Evid. 404(a) and (b); Pondexter, 942 S.W.2d at 584 n.2 (gang evidence introduced during guilt/innocence phase Ato show . . . bad character@ is improper).

THE STATE=S EVIDENCE WAS NOT RELEVANT

FOR A NON-CHARACTER PURPOSE

Appellant testified he is not a skinhead or member of a gang.  Evidence that his friend is a skinhead is irrelevant, unfairly prejudicial, and convicts appellant through guilt by association.

The majority argues that the racial slurs coming from Brown=s car immediately preceding the fight and the racially-charged remarks made by Brown during the fight show a causal connection between the assault and Brown=s neo-Nazi tattoos and racially-motivated behavior.  Photographs of Brown=s tattoosCincluding a swastika and other Nazi symbolsCare relevant, argues the majority, to show intent and motive and to rebut appellant=s self-defense argument. See Bradshaw v. State, 65 S.W.3d 232, 238 (Tex. App.CWaco 2001, no pet.). 

I disagree.  The need to show motive and intent, the need to rebut a self-defense argument, and the need to show any number of other potential bases for admission of gang-affiliation evidence simply are not extant in this case.

(1)     The evidence was not necessary to prove intent.

Aggravated assault and murder both require culpable mental states of intentionally or knowingly causing bodily injury or death, and appellant=s indictments so provided.  See Tex. Pen. Code '' 22.02 and 19.02.  At trial, therefore, the State was required to prove appellant intentionally or knowingly caused bodily injury and death when he assaulted Ponce and Simmons.

Intent can be inferred from an accused=s acts, words, or conduct. See Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980); In re. B.P.H., 83 S.W.3d 400, 408 (Tex. App.CFort Worth 2002, no pet.).  A specific intent to kill may be inferred from the use of a deadly weapon unless, in the manner of its use, it is reasonably apparent that death or serious bodily injury could not result.  Staley v. State, 887 S.W.2d 885, 889 (Tex. Crim. App. 1994).  Where the State=s direct evidence clearly shows the intent element of the crime and that evidence is uncontradicted by the defendant or not undermined by cross-examination of the State=s witnesses, the offer of other crimes is unjustified due to the lack of relevancy.  Rankin v. State, 974 S.W.2d 707, 719 (Tex. Crim. App. 1996) (op. on reh=g).

A knife is considered a deadly weapon if used in a manner capable of causing death or serious injury.  Tex. Pen. Code Ann. 1.07(a)(17)(B)(Vernon 1994) (defining deadly weapon as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury@); McCain v. State, 22 S.W.3d 497, 502B3 (Tex. Crim. App. 2000) (finding knife to be a deadly weapon); Thomas v. State, 821 S.W.2d 616, 619B20 (Tex. Crim. App. 1991) (same).  If a deadly weapon is used in a deadly manner, the inference is almost conclusive that defendant intended to kill.  Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993).  See also Gutierrez v. State, 85 S.W.3d 446, 450 (Tex. App.CAustin 2002, no pet. h.) (finding jury could infer culpable intent to kill where numerous witnesses observedCand appellant admittedCappellant stabbed and killed victim in self-defense).

Here, appellant produced a knife with a 9-inch blade, blindly swung the knife at his attackers, killing one person and injuring another.  A reasonable trier of fact could infer from these acts that appellant had the intent to cause death or bodily harm.  See Tex. Pen. Code ' 1.07(a)(17)(B) (Vernon 1994).  See also B.P.H., 83 S.W.3d at 408 (finding intent to kill could be inferred where defendant pulled out knife and threatened student with death if student acted as witness against defendant). 

Consequently, character evidence about Brown=s racist activities was not necessary for the State to prove the element of intent for both offenses. See Rankin, 974 S.W.2d at 719.

(2)     The evidence was not necessary to rebut self-defense, because appellant was not entitled to such an instruction.

Appellant testified his attacks on Ponce and Simmons were made in self-defense and a self-defense instruction was submitted to the jury.  The evidence, however, does not support such a charge; thus, rebuttal evidence was unnecessary.

A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.  See Tex. Pen. Code Ann. ' 9.31(a) (Vernon Supp. 2003).  Deadly force, however, is only justified when a reasonable person in the actor=s situation would not have retreated.  Id. at ' 9.32(a)(2).  See also Juarez v. State, 886 S.W.2d  511, 513B14 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); Broussard v. State, 809 S.W.2d 556, 558B59 (Tex. App.CDallas 1991, pet. ref=d).^[1]

Before an instruction on self-defense is warranted, the defendant has the burden of coming forward with evidence that sufficiently raises the issue.  Clifton v. State, 21 S.W.3d 906, 907 (Tex. App.CFort Worth 2000, pet. ref=d).  See also Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994).  If he meets this burden, the right to the instruction enures to the defendant regardless of whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of his defense.  Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Torres v. State, 7 S.W.3d 712, 714 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).

Here, evidence suggests there were three ways appellant could have Aretreated@: he could have retreated within the car itself, by locking its doors and/or driving away; he could have retreated to the convenience store and called 9-1-1; or he could have retreated on foot by grabbing Mary and running away.  No evidence was produced to demonstrate appellant utilized any of these escape routes.

Rather, three State witnesses and one defense witness testified appellant voluntarily got out of Brown=s vehicle.  Indeed, the State=s witnesses all testified appellant entered the fight willingly; one even testified appellant could have re-entered the vehicle, locked the doors, or entered the store and called police.  No one testified to hearing appellant say anything like Astop or I=ll cut you.@

Although appellant testified he did not voluntarily get out of Brown=s vehicle, he does admit he planned to.  His plan, he claims, was to attempt to scare Brown=s assailants with the knife; however, before he could execute the plan, he was pulled from Brown=s van and forced to defend himself.  He admits thatCdespite Athinking about it@Che did not try to lock the car doors during the fight, did not attempt to roll up the windows, and did not try to get into the driver=s seat and drive off.  The only rational inference to draw from such evidence is that appellant did not behave as a reasonable person in appellant=s position would haveCnamely, he did not retreat; rather he made plans to escalate the confrontation.  See Broussard, 809 S.W.2d at 560 (finding where Athere [was] nothing in evidence to show that a reasonable person in [appellant=s] circumstances would not have retreated,@ appellant was not entitled to self-defense instruction).

Because the record fails to support the Ainability to retreat@ element of self-defense, I believe the evidence at trial was insufficient to raise the issue of self-defense with deadly force.  See Tex. Pen. Code Ann. '  9.32(a)(2) (Vernon Supp. 2003); Riddle, 888 S.W.2d at 6B7 (appellant not entitled to self-defense instruction where appellant did not testify he could not retreat or that he attempted to retreat but was prevented from doing so); Flores v. State, 49 S.W.3d 29, 34 (Tex. App.CSan Antonio 2001, pet. ref=d) (appellant not entitled to self-defense instruction where he shot victim nine times, took another gun, and shot victim two more times because a rational juror could not believe Aa reasonable person in [appellant=s] situation would not have retreated@). 

Because appellant was not entitled to an instruction on self-defense, Brown=s character evidence had little, if any, probative value and A[g]iven the danger of unfair prejudice,@ the trial court should have excluded it. See Mozon v. State, 991 S.W.2d 841, 848 (Tex. Crim. App. 1999) (Keller, J., dissenting).^[2]  Even though the rule articulated in Mozon is in the dissent, the mere location of the rule does not defeat its accuracy.  The essential element justifying deadly force in self-defense is Aa reasonable person in the actor=s position would not have retreated.@  Tex. Pen. Code Ann. ' 9.32(a)(2) (Vernon Supp. 2003).  Because appellant failed to prove that a reasonable person would not have retreated, his self-defense instruction was improper, and concomitantly, evidence rebutting that instruction was improperly admitted.

Moreover, even if appellant had been entitled to the trial court=s self-defense instruction, the State=s character evidence regarding Brown was unnecessary because, as determined above, a reasonable trier of fact could clearly infer from appellant=s acts with a deadly weapon that he had the intent to kill or cause bodily harm.  See B.P.H., 83 S.W.3d at 408.

(3)     The evidence was not necessary to satisfy a hate crime enhancement.

Under Texas law, a person found guilty of certain hate crimes can be subject to enhanced punishment.  Tex. Pen. Code ' 12.47(a) (Vernon Supp. 2002) (stating that if an affirmative finding under 42.014 of the Texas Code of Criminal Procedure is made in the trial of an offense other than a first degree felony or Class A misdemeanor, punishment increases to the next highest category of punishment).  See also Martinez v. State, 980 S.W.2d 662, 666 (Tex. App.CSan Antonio 1998, pet. ref=d); Sterry v. State, 959 S.W.2d 249, 255 (Tex. App.CDallas 1997, no pet.). 

In such cases, the State must prove the person intentionally selected his victim because of his race or some other feature. Tex. Crim. Proc. Code Ann. ' 42.014(a) (Vernon Supp. 2002) (stating that if the trier of fact in the guilt-innocence phase of a trial determines defendant intentionally selected his victim because of bias or racial prejudice, that fact shall be used in judgment of the case).

Here, no hate crime enhancement was sought against appellant.  The State=s indictment did not include an enhancement and the State did not submit the hate crime issue to the jury.  Additionally, no evidence was produced to indicate appellant was a racist or skinhead.  The homicide detective who testified on behalf of the State said he found no evidence or documentation that appellant was a racist or skinhead, and when he provided the Federal Bureau of Investigation (FBI) with information about appellant=s offenses, the FBI, too, found no hate crime.

Because the State did not seek a hate crime enhancementCand because the State proffered no proof appellant himself was a racistCthe State did not need evidence tending to suggest appellant=s crimes were racially-motivated.  Therefore, evidence that appellant=s friend Brown sported racist tattoos, that he was once arrested for painting over AMexican graffiti,@ and that he once claimed to follow AOdin,@ was irrelevant.

(4)     The evidence was not necessary to show appellant belonged to a gang.

Brown was not the person on trial; appellant was. Indeed, Brown never even appeared as a witness.  Yet two State witnesses and five defense witnesses testified for no other reason than to provide evidence as to Brown=s character.

Such evidence was irrelevant to prove appellant committed the crimes in question. Indeed, neither the majority nor the State cite authority for the proposition that character evidence pertaining to someone not on trialCwho is not even a witnessCis relevant to proving a defendant=s guilt.  Quite the opposite is true: Aevidence as to character should be confined to the defendant=s character alone, and the inquiry should not be extended to the character of others connected with him or with whom he may associate.@  Holsey v. State, 5 S.W.523, 525 (Tex. Ct. App. 1887).  See also Gant v. State, 513 S.W.2d 52, 53 (Tex. Crim. App. 1974) (AIt should be . . . obvious that the character of one=s associates is no evidence of guilt, and we have held that such evidence should not be admitted.@). 

AGuilt by association@ has been rejected in Texas. Holsey,  5 S.W. at 525.  Indeed, the mere presence of an accused in the company of another is not enough to connect a defendant to a charged offense.  Wincott v. State, 59 S.W.3d 691, 698 (Tex. App.CAustin 2001, pet. ref=d) (finding association with another may be offered as corroborationCbut only when facts and circumstances sufficiently connect the accused with commission of the crime).

When gang evidence is admitted during trial, guilt by association becomes a Agenuine concern.@  U.S. v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996) (finding abuse of discretion where Ahighly charged gang-affiliation@ was admitted to serve as a substitute for direct evidence against a passenger in a stopped vehicle found to contain drugs); U.S. v. Polasek, 162 F.3d 878, 887 (5th Cir. 1998) (noting court had repeatedly characterized guilt by association evidence as Ahighly prejudicial@). 

Texas courts have been very careful when admitting skinhead and gang-affiliation evidence during the guilt-innocence phase of trialCindeed, they appear to have done so only when such evidence pertains to a defendant or witness, not when it pertains to a defendant=s associates.  See Vasquez, 67 S.W.3d at 239B40 (defendant=s Mexican Mafia affiliation admissible to show defendant=s motive for killing victim); Williams v. State, 974 S.W.2d 324, 331 (Tex. App.CSan Antonio 1998, pet. ref=d) (defendant=s gang affiliation admissible to show defendant=s motive to rob victim); McNight v. State, 874 S.W.2d 745, 747 (Tex. App.CFort Worth 1994, no pet.) (defendant=s and witness= gang membership admissible to show defendant=s bias); Langley v. State, 723 S.W.2d 813, 817 (Tex. App.CTyler 1987, pet. ref=d) (defendant=s membership in Aryan Brotherhood admissible to show defendant=s pre-existing relationship with fellow kidnapper).

Here, no evidence was admitted to show appellant belonged to a gang.  Thus, evidence that Brown was a skinhead was irrelevant.

(5)     The evidence was not necessary to place appellant=s acts into context. 

It is undisputed that character evidence of a defendant=s membership or association with a gang and the gang=s character and reputation are properly admissible during the punishment phase of a trial.   Jones v. State, 944 S.W.2d 642, 652B53 (Tex. Crim. App. 1996).  During the guilt/innocence phase of a trial, however, such evidence is generally inadmissible unless it fits within the Asame transaction contextual evidence@ rule.  Pondexter v. State, 942 S.W.2d 577, 583B84 (Tex. Crim. App. 1996); Macias v. State, 959 S.W.2d 332, 339 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). 

Under the Asame transaction contextual evidence@ rule, character evidence such as crimes, wrongs, or other acts is admissible only when an offense would make little or no sense without it.  Pondexter, 942 S.W.2d at 584. Indeed, it is only in situations where there is no other reason for defendant to have acted as he did to commit a crime that gang-affiliation evidence comes in during the guilt-innocence stage of a trial.  Brumfield v. State, 18 S.W.3d 921, 925B26 (Tex. App.CBeaumont 2000, pet. ref=d) (emphasis added) (finding evidence that defendant was member of Aryan Circle admissible to prove intent to work together in continuing course of criminal conduct).

Here, appellant=s assaults on Ponce and Simmons were not random acts of violence.  Nothing suggests Ponce and Simmons were targets of a drive-by shooting or predetermined plan; rather, evidence suggests just the opposite: Simmons blocked Brown=s car and Brown and appellant were unhappy about it; SimmonsCan acknowledged fighterChad six or seven beers the night in question and Ponce had alcohol and cocaine in his system; Brown=s mother testified Brown had problems controlling his temper; and Brown and appellant circled the parking lot to leave the store, but were flagged down by Simmons. 

Because evidence that Brown has tattoos and is a skinhead is not necessary to make sense of appellant=s offense, such evidence was inadmissible during the guilt/innocence stage of appellant=s trial.  See Pondexter, 942 S.W.2d at 584 (finding that A[h]ad the State put on its case without . . . appellant=s connection with gangs, the jury surely would have had no problems following and understanding the sequence of events of the night of the murder@); Macias, 959 S.W.2d at 339 (finding A[u]ndoubtedly the State could have presented a clear and understandable case@ explaining appellant=s actions without interjecting Aunnecessary information@ about appellant=s gang-affiliation).

Finding the State=s proffered evidence does not tend to make the existence of a material fact more or less probable, it is my opinion that the trial court abused its discretion in admitting the evidence about Brown and his tattoos.  See Rankin, 974 S.W.2d at 719 (op. on reh=g) (where State=s direct evidence clearly showed intent and was uncontradicted by defendant, offer of other crimes was unjustified due to lack of relevance); Montgomery, 810 S.W. 2d at 391 (admission of extraneous acts was abuse of discretion where State had no compelling need for the evidence to prove intent or shore up testimony); Owens v. State, 827 S.W.2d 911, 916 (Tex. Crim. App. 1992) (extraneous offense evidence was inadmissible where only fact to be resolved in aggravated sexual assault prosecution was whether criminal offense occurred as alleged).

HARM ANALYSIS

Although it is my opinion that the trial court erred in admitting evidence of Brown=s skinhead affiliations and racist activities, I believe the error was harmless.

Where error is not constitutional, we disregard it if it does not affect the appellant=s substantial rights.  See Tex. R. App. P. 44.2(b).  A substantial right is affected where the error causes a substantial and injurious effect or influence in determining the jury=s verdict.  Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); King v. State, 953 S.W.266, 271 (Tex. Crim. App. 1997).

After a careful review of the record, the nature of the evidence supporting the verdict, the character of the error, appellant=s defensive theory, and the amount of emphasis the State placed on the error, it is my opinion that admission of Brown=s skinhead affiliation and tattoos did not have a substantial and injurious effect on the jury=s verdict.  See Motilla, 78 S.W.3d at 355.

First, the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly-admitted evidence.  Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).  Here, appellant himself provided much of the evidence to which he now objects.^[3]  Indeed, five witnessesCBrown=s mother, two of Brown=s longtime Hispanic acquaintances, and two witnesses who were in the convenience store at the time Brown allegedly made comments about APakistanis and Jews@Cwere put on by the defense to address the issue of Brown=s character.

Next, the evidence represented only a small part of the proof put on by the State.  The State put on thirteen witnesses and admitted 52 exhibits during five days of testimony.  The defense put on eleven witnesses and admitted 30 exhibits.  Yet, the evidence to which appellant now excepts encompasses less than 100 lines of prosecution testimony and only three photographs. 

Finally, the injurious effect of the trial court=s errorCnamely, that the State was allowed to make racism a theme of its caseCwas likewise minimal.  While Brown=s character evidence may potentially have diverted jurors from appellant=s self-defense claim, appellant was not entitled to the defense.  Moreover, the State=s evidence may have even helped appellant because appellant was able to rebut State evidence with evidence of his own that Brown and appellant were not racists.^[4]  See e.g. Castaldo, 78 S.W.3d at 350B51 (acknowledging that while evidence defendant voluntarily rode with intoxicated driver may have shown defendant to be reckless, it also helped the defense because it showed the person who caused the accident was intoxicated and a Abad person@).

The unchallenged evidence in this case permitted the jury to find all of the elements of the charged offense.  This evidence was not contradicted.  Given this evidence, the jury was clearly not equally balanced on the issue of guilt or innocence.  Indeed, nothing suggests the jury would have come back with a different verdict Abut for@ admission of Brown=s character evidence. 

Accordingly, it is my opinion that the erroneous admission of Brown=s character evidence was harmless.  Finding no reversible error, I concur in the majority=s judgment.

/s/        John S. Anderson

Justice

Judgment rendered and Majority and Concurring Opinions filed July 17, 2003.

Panel consists of Justices Yates, Anderson, and Frost (Yates, J. majority).

PublishCTex. R. App. P. 47.2(a).

---

^[1]  The reasonableness of an accused=s belief that force was required to defend himself is viewed from the defendant=s standpoint at the time he acted.  Juarez, 886 S.W.2d at 514.  See also Tex. Pen. Code Ann. ' 1.07(a)(42) (Vernon 1994) (AReasonable belief@ is Aa belief that would be held by an ordinary and prudent man in the same circumstances as the actor.@)

^[2]  Although appellant received the Awindfall@ of an instruction concerning self-defense in the jury charge, that does not change the analysis.  See Mozon v. State, 991 S.W.2d 84, 848 n.1 (Tex. Crim. App. 1999) (Keller, J., dissenting).

^[3]  Arguably, appellant proffered this testimony to place objectionable State evidence into context.

^[4]  This help was reflected in the minimal amount of weight the jury seemed to place on the error.  Indeed, during the trial=s punishment phase, the jury attempted to give appellant probation for both the murder and aggravated assault.  It was only after the jury=s initial attempt to assess a Alight@ sentence failed, that jurors assessed punishment at 15 years= confinement.  This suggests the juryCdespite appellant=s failure to produce evidence satisfying all the elements of self-defenseCremained sympathetic to appellant.