Shawn Bascom v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-066-CR





SHAWN BASCOM,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 100,569, HONORABLE JON N. WISSER, JUDGE

The jury found Shawn Bascom guilty of voluntary manslaughter in the death of Christobal Hernandez, and assessed punishment at 20 years' imprisonment. The trial court adjudged Bascom guilty and sentenced him accordingly. We will affirm the conviction.

THE CONTROVERSY

Bascom testified at trial, after the State rested, relating in detail the events surrounding his killing of Hernandez and contending that he did not intend the homicide. Bascom testified as follows:

Bascom met Hernandez about seven o'clock in the evening when Bascom was walking on a sidewalk adjoining the frontage road of Interstate Highway 35, near the Town Lake bridge in Austin. Hernandez stopped his automobile, a gold BMW, and asked Bascom where Riverside Drive was located. Bascom got in Hernandez's car to direct him to the street. Hernandez drove past the Riverside Drive intersection (apparently with Bascom's consent), and the two drove to a store where they bought beer, and then picked up Hernandez's friend, Joey Williamson, at his residence nearby. The three drove to a park. There they smoked marijuana and drank several beers before going to a bar named The Back Room, where Bascom was denied admission because of his minority. At Bascom's suggestion, they drove then to Speed's Pool Hall on Riverside Drive. There they stayed for several hours, drinking five or six pitchers of beer for which Hernandez paid. By this time, Bascom had deduced that Hernandez knew his way around Austin and had not really required directions to Riverside Drive.

After Williamson left, Hernandez and Bascom drove to Hernandez's apartment to listen to music. There, they drank more beer and smoked more marijuana. While the two were seated on a sofa, Hernandez made a sexual advance toward Bascom by putting a hand on Bascom's leg. Bascom resisted the gesture, but Hernandez again put his hand on Bascom's leg and squeezed. Bascom stood and jumped over a coffee table in front of the sofa. Hernandez came toward Bascom, reassuring him that he "wasn't going to do nothing to [Bascom]." But when Hernandez continued to approach him, Bascom took a knife from a nearby chair, pointed the knife at Hernandez, and told him to "stay away." Hernandez "grabbed" Bascom around the neck and tried to pull Bascom to the ground. Bascom managed to trip Hernandez, causing him to fall to the floor "pretty hard." Bascom fell on top of Hernandez.

While the two struggled, Bascom dropped the knife. Keeping Hernandez on the floor, Bascom tied Hernandez's hands behind his back and his feet together, and gagged him (Bascom testified that he bound and gagged Hernandez with pillow cases that Bascom had removed from pillows in a linen closet while the two men were struggling). Bascom then brought Hernandez a paper towel for his finger which he had cut during the struggle. Throughout the struggle, Bascom repeatedly told Hernandez to leave him alone, and that he wanted to leave.

After wiping the beer bottles to remove any fingerprints, Bascom started toward the door, but Hernandez had untied the bindings on his feet and was trying to get up, so Bascom "grabbed him from the back of the neck up around by his hair on the back of his shirt and bent him." Bascom then hit Hernandez in the stomach, seizing him at the same time, then "leaned him toward the chair . . . turned him around and threw him onto the couch, ran him into it." After the two wrestled, Bascom then put a neck tie around Hernandez's neck, and "grabbed [the tie] with [his] right-hand as tight as [he] could," holding the ligature for about twenty seconds, Hernandez struggling all the while.

After determining that Hernandez's pulse had stopped, Bascom waited in the apartment for 45 minutes. Then he "wiped the place down," took the money from Hernandez's wallet, took Hernandez's car, and drove down Interstate Highway 35 to a roadside park in New Braunfels where he spent the night. Bascom spent the next two days driving around and visiting people.

A couple of days after Hernandez's death, peace officers arrested Bascom in Kyle after he had cashed one of Hernandez's checks at a store in Creedmoor.

Bascom also testified that he had not meant to kill or even hurt Hernandez, that Hernandez had not told Bascom that he was gay, and that Hernandez had not made any sexual advances toward him before the two left Speed's pool hall together.

THE CONFESSION

While in police custody, Bascom confessed to killing Hernandez and gave an account of what had happened the night of the killing and during the two days between Hernandez's death and Bascom's arrest.

On appeal, Bascom complains, in his fifth point of error, that "the trial court erred in admitting into evidence . . . [the confession] when the involuntary character of the statement was established and when appellant invoked his right to counsel." Because Bascom waived any error resulting from the admission of the confession, we need not consider whether the trial court erred in admitting the confession.

Under the doctrine of "curative admissibility," the admission of improper evidence cannot be grounds for reversal if the defendant gives testimony on direct examination that establishes the same facts as those established by the evidence of which he complains. Sherlock v. State, 632 S.W.2d 604, 606 (Tex. Cr. App. 1982); Thomas v. State, 572 S.W.2d 507, 512 (Tex. Cr. App. 1976). The doctrine of curative admissibility does not apply, however, if the defendant testified in order to overcome the impact of the improperly admitted evidence. See Sherlock, 632 S.W.2d at 606; Thomas, 572 S.W.2d at 512-13. Thus, if the defendant took the stand in order to refute, deny, contradict, or impeach the improperly admitted evidence, error is not waived. Id.

In the present case, Bascom's confession is no more incriminating than his trial testimony: in both, Bascom related substantially the same story about the events surrounding Hernandez's death. The only material inconsistency between Bascom's trial testimony and his confession related to when he realized that Hernandez may have known his way around Austin and did not really need directions to Riverside Drive: in his statement, Bascom said he did not begin to realize that Hernandez may have known his way around Austin until the three men were at Speed's; in his direct testimony, on the other hand, Hernandez stated that he had "figured it out" by the time the two men arrived at Williamson's residence.

In determining whether the State met its burden of proving that the defendant did not testify in order to overcome the impact of an improperly admitted confession, we are instructed to consider the following factors: (1) evidence that defendant would not have testified but for the admission of the confession; (2) evidence that, even if the defendant would have testified regardless of whether the confession had come into evidence, he would have testified in the same manner had the confession not been admitted; (3) whether the State introduced other evidence of guilt and the strength of that other evidence; and (4) whether there is other evidence, aside from the evidence objected to, that would have induced the defendant to testify in the same manner. See Sherlock, 632 S.W.2d at 607.

In the present case, there is nothing in the record indicating that Bascom would not have testified had the confession been excluded. Secondly, there is no indication that Bascom's testimony on direct examination would have been any different from that which he in fact gave had the confession not been admitted. ⁽¹⁾

Concerning the third factor from Sherlock, we conclude that the other evidence of guilt tended strongly to corroborate the State's case.

Joey Williamson, Hernandez's friend who had accompanied Bascom and Hernandez to the park and Speed's Pool Hall on the night of Hernandez's death, told substantially the same story as did Bascom regarding the events of the evening up until the time Williamson left Speed's Pool Hall at around 12:30.

Williamson testified, in addition, that while the three were in the car at a park, Bascom had pulled a firearm out of his boot, put it on his waistband, and was "kind of bragging about it a little bit." Williamson also testified that, while the three were at Speed's, Bascom told him that Hernandez "was gay and if he comes on to him he'll do something real bad to him." Williamson responded by saying, "[h]e's cool. He won't come on to you. Just tell him no." Williamson left Speed's about 12:30 or 12:45 that night. He called Hernandez twice during the next two days, but was answered by a recording each time. When he called a third time, a homicide detective answered the telephone and informed Williamson that Hernandez was dead.

Williamson's account of the evening differed from Bascom's in only two material respects: firstly, Williamson recounted his conversation with Bascom in Speed's regarding Hernandez's homosexuality, whereas Bascom testified that, when they left Speed's, he did not suspect Hernandez was homosexual; secondly, contrary to Williamson's testimony, Bascom testified on cross-examination that he did not have a firearm the night he accompanied Hernandez and Williamson.

Police officers, EMS employees, and other witnesses testified that, on the morning of May 17, 1989, they found Hernandez face-down on his couch, gagged, hands and feet bound, with a tie around his neck. One of the officers and a medical examiner testified that the pillowcases binding Hernandez's hands, feet, and mouth were folded "lengthwise" and loosely tied. (Apparently, a friend of Hernandez who discovered the body that morning and called the police had attempted to untie the binding on the wrists, loosening it. There was no evidence that any of the other pillowcases had been disturbed.)

Sergeant Cearley, a homicide detective, observed that there was no sign of struggle: the apartment was very clean and there was no blood anywhere except on the couch under Hernandez's head and on Hernandez's finger where Sergeant Cearley saw a small cut. Hernandez held a paper towel in his cut hand. Sergeant Cearley also observed that there was a pillow with no case on it in the back bedroom of the apartment.

Irma Rios, a DPS chemist, testified she did not find any blood stains or other significant evidence on Bascom's clothing and that she did not find any of Bascom's hair or any blood of Bascom's type on the pillowcases used to bind Hernandez, on the paper towel in Hernandez's hand, or on Hernandez's clothing.

Suzanna Dana, a medical examiner who performed an autopsy on Hernandez's body, testified that Hernandez had died of strangulation with a ligature. She also testified that it did not appear that Hernandez had struggled during the strangulation because the bindings around his wrists and ankles were neatly rolled and there were no abrasions on his wrists or ankles where the pillowcases were tied. She testified that the small cut on Hernandez's forefinger did not appear to be a "defensive wound."

Other evidence showed that Bascom was driving Hernandez's car when police arrested him two days after Hernandez's death and that he had cashed two checks on Hernandez's account after Hernandez's death and before he was arrested.

Rita Shields, the mother of a friend of Bascom, testified that Bascom had come to her house on May 17. He was driving a Gold BMW which he told her was a company car owned by IBM, where he worked as a courier. Not believing the story, Shields called her brother, an officer with the Austin Police Department, gave the vehicle identification number on the car, and learned that the car had been reported stolen. Shields testified that Bascom's mood had been the same as ever -- that he was "laughing and talking and cutting up."

David Stocker, an "I.D. technician," found fingerprints on a paper on Hernandez's coffee table. He concluded the prints were "conclusive as to the identity" of Bascom. He also testified that the coffee table and beer bottles in Hernandez's apartment appeared to have been "wiped clean."

The evidence presented by the state, not considering the confession or Bascom's own testimony, strongly supported the State's theory that Bascom went to Hernandez's home intending to rob him: Williamson's testimony linked Bascom to Hernandez around the estimated time of Hernandez's death; Williamson testified that he had talked with Bascom about Hernandez's homosexuality and that Bascom had warned that, if Hernandez "comes onto him he'll do something real bad to him"; the "I.D. technician" found Bascom's fingerprint on a piece of paper in Hernandez's apartment and stated that the coffee table and beer bottles had in his opinion been "wiped clean"; several witnesses testified that Hernandez's body was found face down on his couch, his wrists and ankles bound and his mouth gagged with pillowcases, and a tie around his neck; the medical examiner testified that Hernandez had died of strangulation with a ligature and that there appeared to have been no struggle; Sergeant Cearley testified that the condition of the apartment did not indicate that any struggle had occurred there; evidence showed there was no cash in Hernandez's wallet, which was lying on the coffee table; Bascom was arrested driving Hernandez's gold BMW the day after Hernandez's body was found; Rita Shields testified that Bascom lied about where he had got the gold BMW; and evidence showed that Bascom cashed two checks on Hernandez's bank account that were dated after the estimated time of Hernandez's death.

We consider now the fourth Sherlock factor -- whether there was any evidence, exclusive of the confession itself, which would have induced Bascom to testify in the case. We believe there was. The cause of Hernandez's death (strangulation with a neck tie) implied an intentional homicide, and no evidence suggested self-defense, an accident, or other exculpatory circumstances. The testimony of witnesses placed Bascom with Hernandez at the time of death, and the fingerprint evidence placed Bascom at the scene of death. Immediately after Hernandez's death, Bascom was in possession of Hernandez's automobile; he explained his possession by a falsehood; and he withdrew sums from Hernandez's bank account through the use of Hernandez's blank bank checks. The strength of this evidence explains the position taken by Bascom's lawyer in closing argument to the jury: "I knew in the very beginning, although I had to hold it back as a hold [sic] card, I knew my client would take the stand." We hold that the evidence, apart from the confession, would have induced Bascom to testify.

Based on our consideration of the four factors enumerated in Sherlock and because any inculpating inferences from the confession were also presented to the jury by Bascom himself in his trial testimony, we hold the doctrine of curative admissibility precludes reversal based on erroneous admission of the confession. We therefore overrule Bascom's fifth point of error.

EVIDENCE OF AIDS

At trial, Bascom proffered, through a bill of exceptions, testimony by Hernandez's treating physician that Hernandez suffered from the AIDS (acquired immune deficiency syndrome) virus and malignant lymphoma (a cancer of the lymphoid system), was under chemotherapy for his cancer, and was taking several other medications for AIDS-related illnesses at the time of his death. The physician also testified that Hernandez's illnesses and chemotherapy had caused him to feel weak and that the AIDS virus is transmitted through sexual contact. The trial court excluded the testimony on the grounds that such evidence was not "relevant [or] material" ⁽²⁾ and that the prejudicial effect would outweigh any probative value.

In his first point of error, Bascom contends the trial court committed reversible error by refusing to allow into evidence the physician's testimony that Hernandez suffered from AIDS.

In reviewing the trial court's decision whether to admit evidence, we cannot disturb the trial court's ruling except for abuse of discretion. See Johnson v. State, 698 S.W.2d 154, 160 (Tex. Cr. App. 1985), cert. denied, 479 U.S. 871 (1986); Torres v. State, 794 S.W.2d 596, 600 (Tex. App. 1990, no pet.).

We agree with the trial court that the evidence showing that Hernandez suffered from AIDS was not relevant to any material issue in the case. The fact that the victim had AIDS would be relevant only if Bascom attempted to prove that he killed Hernandez in self-defense. Under a theory of self-defense, Bascom would have had to prove that he had a reasonable belief Hernandez had AIDS, and therefore had a reasonable belief that deadly force was necessary to repel Hernandez's use of deadly force. See Tex. Pen. Code Ann. § 9.32(3)(A) (Supp. 1991). There was no evidence at trial suggesting any of these factors.

Holding the trial court did not abuse its discretion in excluding evidence that Hernandez had AIDS, ⁽³⁾ we overrule Bascom's first point of error.

EVIDENCE OF HERNANDEZ'S WEAKENED PHYSICAL CONDITION

In his second and third points of error, Bascom complains the trial court erred by not permitting the physician's testimony about the effect of cancer, chemotherapy, and other diseases on Hernandez's physical condition. Bascom asserts that, even if the trial court believed the evidence of AIDS too prejudicial, it should have permitted the physician to testify about Hernandez's other physical ailments. Bascom avers the testimony is relevant to rebut the State's theory that Bascom was the first aggressor or, alternatively, that Hernandez either allowed Bascom to tie him up or that Bascom tied him up after he died. The evidence of Hernandez's weakened physical condition, Bascom contends, would rebut the State's theory and corroborate Bascom's account of what happened in Hernandez's apartment.

While evidence of a victim's physical condition is admissible if relevant, Lopez v. State, 535 S.W.2d 643, 650 (Tex. Cr. App. 1976), we cannot say in the present case that the trial court abused its discretion in deciding that the physician's testimony was not relevant or that its prejudicial effect substantially outweighed any probative value. See Johnson, 698 S.W.2d at 160; Torres, 794 S.W.2d at 600. After sustaining the State's objection to the physician's testimony, the court stated: "After all the evidence is in, perhaps the Defense may reargue the admissibility of some of this. To say that the victim had a slight weakness still makes him stronger than 50 percent of the people. It is all such a relative thing. I don't know that it's very meaningful." Indeed, the physician testified that Hernandez's "general condition was a little weaker" and that "he might be a little bit more susceptible to the effects from a general weakened condition." (Emphasis added.)

Furthermore, Bascom had already presented evidence that Hernandez suffered from cancer at the time of his death, and that his physical condition was weak as a result: on cross-examination of Hernandez's friend Sherry Warren, Bascom's counsel asked whether Hernandez had told her "of a physical condition that he had that left him in a weakened position, weakened physically." She responded that he had, that "[h]e had cancer. That's [why] he was going for the doctor's."

The trial court may have concluded that the probative value of the testimony was not great because even though Hernandez may have suffered from a "slight weakness," he was still "stronger than fifty percent of the people." Moreover, the trial court could reasonably have concluded that the prejudicial effect outweighed any slight relevance the evidence may have had. We therefore hold that the trial court did not abuse its discretion, overruling Bascom's second and third points of error.

Bascom further asserts, in his fourth point of error, that "the trial court erred in preventing [Bascom] from responding to invited argument regarding the physical condition of [Bascom] in comparison to the physical condition of [Hernandez]." In support of his point of error, Bascom seems to contend that the trial court should have allowed Bascom's counsel to argue, during final argument, that Hernandez had AIDS at the time of his death or that he was physically weak for reasons stated in the physician's testimony because the State invited argument on Hernandez's weakened physical condition by the following remarks:

And when you ask yourself whether the defendant's testimony about how this happened is reasonable, think about it and ask yourself: Could you tie someone up, a grown man struggling, with pillow cases binding his hands and his feet? Maybe somebody could do that. Maybe Arnold Schwarzenegger could do it, but that's not who [Bascom] is.

In light of our holding that the trial court did not abuse its discretion in excluding the physician's testimony, we hold that the trial court did not err in not allowing Bascom to state the contents of such testimony in final argument. Jury argument based upon matters not in evidence or not reasonably inferable from the evidence is improper. Allridge v. State, 762 S.W.2d 146, 155 (Tex. Cr. App. 1988), cert. denied, 489 U.S. 1040 (l989). We overrule Bascom's fourth point of error.

WARRANTLESS ARREST

In his sixth point of error, Bascom complains "the trial court erred in failing to sustain appellant's timely motion to suppress evidence obtained after unlawful arrest without warrant." In his argument of the point, Bascom does not, however, specify which items of evidence were obtained as a result of the arrest, but simply argues, in some detail, why the arrest was illegal.

We need not reach the merits of the point because Bascom has not properly preserved any error in this respect. Firstly, Bascom failed to obtain a ruling on the motion to suppress, and therefore failed to preserve for appeal any complaint regarding the motion. ⁽⁴⁾ See Tex. R. App. P. Ann. 52(a) (Pamph. 1991). Secondly, Bascom does not, in his brief, connect the allegedly illegal arrest with any specific item of evidence. Moreover, the motion to suppress states, generally, that the following evidence should be suppressed:

All tangible evidence seized by law enforcement officers or others in connection with the detention and arrest of Defendant in this cause or in connection with the investigation of this cause[;] [a]ll written and oral statements made by Defendant to any law enforcement officers or others in connection with this cause[;] [t]estimony of law enforcement officers of [sic] others concerning any actions or [sic] Defendant while under detention or arrest in connection with this cause[;] [t]estimony of law enforcement officers or others concerning the tangible evidence or statements to which reference was made above.

Because Bascom failed to state in his brief which items of evidence were erroneously obtained as a result of the arrest and in light of the non-specific nature of the motion to suppress, we hold that Bascom has failed to direct our attention "to the error about which complaint is made," thereby waiving any error. Tex. R. App. P. Ann. 74(d) (Pamph. 1991). We overrule Bascom's sixth point of error.

INSTRUCTION REGARDING LACK OF IMPULSE CONTROL

In his seventh point of error, Bascom contends the trial court erred in failing to instruct the jury "to disregard statements of the prosecutor that Bascom suffered from a mental illness that prevented him from controlling his behavior." Bascom directs his complaint at the following comment by the prosecutor in her opening statement: "You are going to find out that this defendant cannot read or write because he has a learning disability because of an emotional disturbance, that he cannot control his impulses." Bascom objected to the statement, then requested a mistrial (which request the trial court denied), but failed to obtain a ruling on his objection or object to the trial court's failure to rule on the objection. See Tex. R. App. P. Ann. 52(a). He therefore waived any complaint on appeal. We overrule Bascom's seventh point of error.

EVIDENCE OF HERNANDEZ'S SEXUAL HISTORY

At trial, Bascom attempted to introduce testimony of Hernandez's friends, Gary McNeese and Sharla Bolerjak, regarding Hernandez's homosexual promiscuity. In his eighth point of error, Bascom contends the trial court erred in excluding testimony respecting Hernandez's sexual tendencies.

The State objected to the testimony on the ground that it was inadmissible character evidence and the trial court sustained the objections as to both witnesses. On appeal, Bascom urges that the evidence was relevant because it tended to support the following theories: (1) Hernandez "sought out" Bascom; (2) Hernandez made sexual advances toward Bascom; and (3) Hernandez "had a plan and . . . his actions were not accidental or arbitrary."

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Cr. Evid. Ann. 401. Evidence of Hernandez's sexual history is not relevant to any material issue in Bascom's case. It does not refute any element of the offense or support any element of any exculpatory theory. We therefore hold the trial court did not abuse its discretion in excluding the evidence of Hernandez's sexual history. Johnson, 698 S.W.2d at 160. Because we hold the evidence is not relevant, we need not address Bascom's argument that it constituted admissible character or habit evidence. We overrule Bascom's eighth point of error.

"BLOOD-SPLATTER" REPORT

In his ninth point of error, Bascom asserts that the trial court, in a pre-trial order, "granted [Bascom] the right to discover any scientific reports produced by witnesses for the State"; and "[t]he trial court erred in failing to grant a mistrial due to the State's failure to provide [a] blood splatter report as required by the discovery order." We find in our transcript what purports to be a proposed pre-trial discovery order. It is not signed and bears no indication that the trial court actually rendered the order that forms the basis of Bascom's complaint. We therefore overrule the point.

In his tenth point of error, Bascom contends the trial court erroneously denied his motion for a continuance when he learned of the existence of the blood-splatter report which the State had received and did not turn over to him. In light of the fact that there is in the record no discovery order signed by the trial judge, and no showing that the State was ordered to turn over the blood-splatter report, we hold the trial court did not err in denying Bascom's motion for continuance. We therefore overrule Bascom's tenth point of error.

CHAIN OF CUSTODY

In his eleventh and twelfth points of error, Bascom contends the trial court erred by admitting into evidence several items of Bascom's clothing; some boots that Sergeant Cearley of the Austin Police Department testified he found in Bascom's bedroom; and the pillow cases, neck tie, and paper towel, which were found on Hernandez's body. Sergeant Cearley identified the pillow cases, neck tie, and paper towel as those which the medical examiner removed from Hernandez's body and handed to Cearley before performing the autopsy. He also identified the clothing and boots as items which he had found in Bascom's bedroom.

Bascom does not indicate in his brief where he believes there was a break in the chain of custody. However, we need not address the question because we believe, beyond a reasonable doubt, that any error in the admission of the complained-of evidence could not have contributed to the conviction. See Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1991); see generally Harris v. State, 790 S.W.2d 568, 586-88 (Tex. Cr. App. 1989) (Duncan, J.).

Presumably, the purpose of introducing the pillowcases, neck tie, and Bascom's clothing was to corroborate the already- ample evidence that Bascom was in Hernandez's apartment the night of Hernandez's death, and that he strangled Hernandez with a ligature. Bascom admitted, in his testimony and written confession, that he strangled Hernandez in his apartment. Because we believe any error was harmless, we overrule Bascom's eleventh and twelfth points of error.

JURY VOIR DIRE

In his thirteenth point of error, Bascom avers the trial court erred by allowing the State to ask the venire whether they were aware of an incident in Dallas in which a trial judge imposed a light sentence on a defendant whose victims were homosexual and whether they thought the sexual orientation of the victim should bear any relevance to the length of a defendant's sentence.

In reviewing the point of error, we note that the scope of voir-dire examination by counsel is within the discretion of the trial court. Dowden v. State, 758 S.W.2d 264, 274 (Tex. Cr. App. 1988); Clark v. State, 608 S.W.2d 667, 669 (Tex. Cr. App. 1980); Preston v. State, 242 S.W.2d 436, 439 (Tex. Cr. App. 1951), cert. denied, 343 U.S. 917 (1952). The permissible areas of questioning the panel in order to exercise peremptory challenges are broad and cannot be unnecessarily limited. Mathis v. State, 576 S.W.2d 835, 836 (Tex. Cr. App. 1979).

We cannot say the trial judge abused his discretion. The question concerned a punishment consideration that was legally irrelevant but which might influence a juror given the facts of the case. Accordingly, we overrule Bascom's thirteenth point of error. In light of our disposition of Bascom's thirteenth point of error, we also overrule his fourteenth point of error in which he complains of prosecutorial misconduct in the State's questioning the venire about the controversial sentencing by a Dallas judge.

WITNESS LIST

In his fifteenth and final point of error, Bascom contends the trial court erred by allowing Guadalupe Hernandez, the victim's brother, to testify at trial when his name was not on the State's witness list.

If the trial court permits a witness not on a witness list to testify, we may reverse the trial court's decision only if the trial court abused its discretion. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Cr. App. 1981). In determining whether the trial court abused its discretion, we consider whether the defendant could reasonably have anticipated that the witness would testify and whether there was a claim of bad faith on the part of the prosecutor. Bridge v. State, 726 S.W.2d 558, 566-67 (Tex. Cr. App. 1986); Hightower, 629 S.W.2d at 925.

In the present case, the State argued to the trial court that, before trial, it had furnished Bascom with a witness list naming "Hernandez family member," but that, at the time, the State did not know whether it would call Hernandez's mother, brother, or sister. The State further contended that it had advised Bascom's counsel of the uncertainty as to which family member it would call and that Bascom had not complained. Bascom did not contest the State's statements to the trial court or suggest any bad faith on the part of the State. Furthermore, we do not believe Bascom could have been harmed by the contents of the brother's testimony -- the witness merely identified the victim's photograph, established the correct name of the victim in the indictment, and stated the names, ages, and locations of other family members of the victim.

In light of the lack of any indication of bad faith by the prosecution and the limited nature of the brother's testimony, we hold the trial court did not abuse its discretion in permitting the victim's brother to testify, but that any error was harmless in all events. We therefore overrule Bascom's fifteenth point of error.

We affirm the judgment of the district court.

John Powers, Justice

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: August 28, 1991

[Do Not Publish]

1. During direct examination, neither Bascom nor his counsel referred to the statement; Bascom simply related a version of the facts surrounding Hernandez's death that was almost identical to that which he had recounted in his confession. It was not until his cross-examination that the prosecution referred repeatedly to the confession in order to impeach Bascom with inconsistencies between his direct examination and the statement. With the exception of the discrepancy between his confession and direct testimony regarding when he realized that Hernandez did not need directions to Riverside Drive, the inconsistencies with which the State tried to impeach Bascom were minor and did not relate to any material facts surrounding the offense.

On re-direct examination, Bascom explained that he had not intentionally misled the officer taking his statement with respect to the "little details," but that at trial he recalled some details that he had not remembered when he gave his statement.

2. Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Cr. Evid. Ann. 401 (Pamph. 1991).

3. Bascom also argues that evidence of the character of the victim is relevant, even if the defendant is not aware of the character trait, if such character evidence is being offered to prove that the victim was the first aggressor. See Beecham v. State, 580 S.W.2d 588, 590 (Tex. Cr. App. 1979). Evidence that Hernandez had AIDS is not character evidence; it is evidence of a bodily disease. Thus, Beecham does not apply in the present case.

Bascom argues next that the evidence showing that Hernandez had AIDS is relevant because it shows the physical condition of the victim, which is relevant in homicide prosecutions. See Lopez v. State, 535 S.W.2d 643, 650 (Tex. Cr. App. 1976). Even if such evidence is relevant, we see no basis for holding that the trial court abused its discretion in determining that the prejudicial effect of such evidence would outweigh any probative value it may have.

Finally, Bascom argues that the AIDS evidence was relevant because Hernandez's bodily fluids, with which he could spread the AIDS virus, constituted a secret weapon, evidence of which was relevant. See Meyer v. State, 276 S.W.2d 286, 290 (Tex. Cr. App. 1954). We disagree. In Meyer, the court of criminal appeals stated that a pistol found in the defendant's car beside the one which he had used to kill the victim would be admissible to show the defendant's preparation. Meyer applies to a defendant's weapon, not a weapon possessed by the victim, and is therefore inapposite in the present case.

4.   The transcript contains a proposed order on Bascom's Motion to Suppress Evidence. However, the proposed order is not signed; nor does it bear any other indication that the trial court ruled on it.