Byron Keith Duncan v. State

  















In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00180-CR ______________________________



BYRON KEITH DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 180th Judicial District Court Harris County, Texas Trial Court No. 862006

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Before Grant, Ross, and Cornelius,* JJ.

Opinion by Justice Grant

______________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

O P I N I O N

Byron Keith Duncan appeals from the judgment of the district court entered on Duncan's plea of guilty without an agreed recommendation, on a charge of fraudulent use and possession of identifying information, Tex. Pen. Code Ann. § 32.51 (Vernon Supp. 2002). Duncan was sentenced to two years' confinement in a state jail facility to run concurrently with two other cases also on appeal to this court (cause numbers 06-01-00181-CR and 06-01-00182-CR).

On appeal, Duncan contends that his counsel at trial rendered ineffective assistance at the punishment stage of the trial, in two particulars: 1) by failing to object to evidence suggesting Duncan had committed an extraneous offense; and 2) by failing to object to the victims' recommendations of punishment, which were included in the presentence investigation (PSI) report.

Procedural History

On March 2, 2001, Duncan executed written waivers of his rights, acknowledged the admonishments by the trial court, and entered his plea of guilty to the offense charged in this case.

At the sentencing hearing, the State offered the PSI report into evidence and rested. Duncan testified.

Ineffective Assistance of Counsel

When confronted with a claim of ineffective assistance of counsel, we are to apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington. ⁽¹⁾ Under the first prong of the Strickland test, an appellant must show that counsel's performance was deficient. This requires a showing that he or she made errors so serious that counsel was not functioning as the counsel guaranteed to a defendant in a criminal prosecution by the Sixth Amendment to the United States Constitution. In order to be successful in this regard, an appellant must show that counsel's performance fell below an objective standard of reasonableness. Under the second prong, an appellant must show that this deficient performance prejudiced the defense. The appropriate standard for judging "prejudice" requires an appellant to show there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Both prongs must be proven by a preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 149 L.Ed 2d 1027, 121 S. Ct. 2196 (2001); Blount v. State, 64 S.W.3d 451, 453-54 (Tex. App.-Texarkana 2001, no pet.). This standard is applied at both the trial and punishment phases. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

Counsel's Failure to Object to Victims' Recommendations of Punishment

Duncan contends his trial counsel was ineffective for failing to properly object to portions of the PSI report offered in evidence containing statements by the victims or persons related to the victims, giving their recommendations regarding whether Duncan should be placed on community supervision.

One of the sections of the PSI report is labeled "VICTIM IMPACT STATEMENT." Relevant parts of the Victim Impact Statement are as follows:

Brenorris McBeth is the complainant of the stolen check that Mr. Duncan tried to use to purchase tires and wheels at the Discount Tire Store. Mr. McBeth advised this investigator that he saw this person one time. Mr. Duncan tried to sell him the stolen Yamaha motorcycle. Mr. McBeth refused to purchase the motorcycle until Mr. Duncan provided him with a blue title. He reported he did not give Mr. Duncan permission to use any of his property. Mr. McBeth also reported the check used was stolen from his vehicle. This complainant reported he was not injured and he did not lose anything of value thanks to the careful service of the clerk and manager at the tire store. Mr. McBeth originally stated he could care less what happens to the defendant. He then changed his mind and now wishes the Court to know he is opposed to this person being granted probation.

Sandra Cerquera is the victim of the stolen purse containing all of her identifying information, checkbook, and several credit cards. Some of these items were found in Mr. Duncan's vehicle at the time of arrest. Mrs. Cerquera met Mr. Duncan when she ran and approved credit for the defendant to walk out of the Ex-Imports Motorcycle dealership; . . . . Mr. Duncan was using identifying information for Darris Johnson at the time. Mrs. Cerquera reported to the police that her purse was stolen the same day Mr. Duncan was in her office. Mrs. Cerquera's checkbook and driver's license were missing from the items recovered and have not been returned. Mrs. Cerquera reported to this officer that some of her checks were cashed at Randall's and Kroger's Food Markets. She also reported the defendant went on a clothing shopping spree with her MasterCard. This victim advised she has spent $175.00 out of pocket along with countless hours not working, being on the telephone, and writing to different companies in order to clear up her credit and to keep companies from filing charges against her for purchases she did not make. This has caused her a lot of stress and still wonders what the defendant is going to do with her checkbook and Driver's License. Mrs. Cerquera believes this defendant will continue to commit fraud if given probation. She does not feel comfortable for Mr. Duncan to be granted probation. This victim reported she remembers the defendant very well and stated that defendant seemed to be a convincingly smart and intelligent young man whom [sic] seems to be wasting his life.

. . . .

Kim Huynh is the salesperson that sold Mr. Duncan a men's bracelet and women's earrings for a total of $2466.26. Mr. Duncan walked into Zales Jewelry store and obtained credit to buy the items under the name of Darris Johnson. The men's bracelet recovered from Mr. Duncan's vehicle was in a Zales box. Ms. Huynh request [sic] the Court allow a representative of her company to inspect the recovered men's bracelet in the Zales box to see if this is the item taken from Zales. The jewelry is listed as located at the HPD property room under case #136342100H. Ms. Huynh wants the Court to know that she does not feel comfortable with the defendant being granted probation.

. . . .

Darris Johnson is the victim whose name was used to obtain credit at several places including the Ex-Imports Motorcycle Dealership. Mr. Johnson is a student at College Station. He reported he has been too stressed out over what Mr. Duncan did to him. Mr. Johnson reported his studies have suffered and his grades have dropped due to the pressure of having to clear his name by taking time from school to deal with creditors looking to get paid for Mr. Duncan's fraud. Mr. Johnson reported he has spent about $75.00 in Notary fees along with time needed and is still spending time to rectify the situation. Mr. Johnson wants the Court to know he is severely opposed to Mr. Duncan receiving probation.

(Emphasis added.)

Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (Vernon Supp. 2002) ⁽²⁾ permits a victim, close relative of a deceased victim, or guardian of a victim to appear in person and present to the court and to the defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim. The article provides, however, that this statement may not be made until after the assessment of punishment, after the court has determined whether to grant community supervision, after announcement of the terms and conditions of the sentence, and after sentence is pronounced. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b)(1), (2), and (3). Duncan further argues that these specific limitations on victims' statements prevail over the general language of Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2002), which authorizes the preparation of a PSI report for the trial court "on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge." (Emphasis added.) Duncan further cites Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989). In that appeal, the appellant challenged the ruling of the trial court's refusing to permit a mental health expert to testify as to what punishment, death or mandatory life imprisonment, would be most appropriate for the appellant. The Texas Court of Criminal Appeals affirmed the trial court's ruling, holding "[t]he argument that a witness may recommend a particular punishment to the trier of fact has been soundly rejected" concluded that such testimony would escalate into a "battle of the experts." Id. at 290. The court in Sattiewhite cited Schulz v. State, 446 S.W.2d 872 (Tex. Crim. App. 1969), which affirmed the trial court's refusal to permit a psychiatrist to give opinion testimony that it would be better for the appellant to be placed on probation than to serve time in prison. The court held that permitting such testimony would invade the province of the jury. Id. at 874.

This issue was considered by the Fort Worth Court of Appeals in Fryer v. State, 993 S.W.2d 385 (Tex. App.-Fort Worth 1999). The court held that in Article 42.03, the discussion of the "testimony" of a victim does not include the information contained in the PSI report. Further, the Fort Worth court cited Article 42.12, § 9(a), which contains broad language permitting the PSI report to contain "any other information relating to the defendant or the offense." Fryer, 993 S.W.2d at 388.

At the time of Duncan' briefing, the Texas Court of Criminal Appeals had granted petition for discretionary review in Fryer. The court has now ruled on the petition, affirming the decision of the Fort Worth court. Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002). The Texas Court of Criminal Appeals's opinion in Fryer mentions the above-noted broad language of Article 42.12, § 9(a) with reference to information contained in the PSI report. Id. at 630-31. It distinguishes Sattiewhite as being limited to expert testimony regarding punishment and further holds that the case was limited to testimony and the information contained in the PSI report regarding the victim's recommendation on whether to grant community supervision did not constitute testimony. Id. at 631-32.

As the Texas Court of Criminal Appeals in Fryer has ruled that a PSI report may properly contain the victim's recommendation as to whether to grant community supervision, we follow the court's determination. This issue is overruled.

Failure of Counsel to Object to Errors Referenced in

Duncan's Involvement in a "Pyramid Scheme"

Duncan also contends trial counsel was ineffective at the punishment stage because he failed to properly object to the "prosecutor's unfair manipulation of the Appellant's testimony [that] implied an extraneous offense that had not been shown beyond a reasonable doubt to have been committed by the Appellant." He argues that the prosecutor's questions attempted to show he was involved in some kind of illegal pyramid scheme and, because this offense was not shown beyond a reasonable doubt, it could not therefore be considered by the trial court at the punishment stage. Duncan argues the trial court must have considered this because he was assessed the maximum punishment of two years' confinement in a state jail facility.

At the punishment stage, Duncan testified on direct examination he worked for Prepaid Legal Services. On cross-examination, the first question the prosecutor asked him concerned the nature of Prepaid Legal Services. Duncan answered it was "like a triangular type thing," and the prosecutor continued as follows:

Q. Like a pyramid scheme?

A. Correct. It's -- like they sell like legal insurance for like lawyers or something like that.

Q. Okay. What do you mean? You sell something?

A. Well, I -- if I was to go out into the community and speak to someone about prepaid legal services, I would tell them about the company and I would bring them into a meeting. All our meetings are held on Tuesdays. And I would bring them into the meeting and --

Q. Is this what you do, or you would do?

A. That's what I do.

Q. Okay. What do you sell them? Tell the Judge what you are selling these people.

A. Selling them -- it's insurance to have like a legal shield type insurance. If they were to get into any trouble and they don't have a lawyer --

THE COURT: Did you sell yourself any?

THE DEFENDANT: No, sir. No, sir, I didn't receive any.

Q. [by the prosecutor] And why is that?

A. Because of -- the simple fact that it was something that I could just do -- it was flexible and it would bring in an income.

Q. What's a pyramid scheme?

A. Well, I don't really -- I don't know if it's called a pyramid scheme or if it's called a pyramid.

A pyramid scheme sounds to me is something that's getting over on someone. And that's not what the company does.

The prosecutor continued, several pages later:

Q. All right. Thank you. Prepaid Legal Services, you're telling us it's a pyramid scheme. Is it a legal pyramid scheme?

A. Ma'am.

Q. What are you actually selling?

A. It's legal insurance.

Q. Who are the lawyers?

A. They have their own group of lawyers.

. . . .

Q. So, when you're talking about a pyramid scheme, doesn't that mean that the people who are in it at the beginning make a whole lot of money and the people at the end don't make any money, . . . ?

A. No, that's not correct.

Q. Well, that's what this is -- how is this one different?

A. Because when the people come in they have the opportunity to join into the Prepaid Legal Services. They don't just have to buy or -- to have themselves a lawyer; they can also join into where they're selling insurance also and make the same amount of money that everyone else is making.

The prosecutor continued in her summation:

And this is a fraud case, and which he's admitted to being a member of a pyramid scheme.

. . . .

And the fact that he's working and continues to work at a place that he himself describes as some type of pyramid setup, where people who get in at the beginning get paid a lot and if you don't get in until the end you don't get paid as much.

Besides mischaracterizing Duncan's testimony, it is clear the prosecutor made no serious attempt to get at the true nature of the operation by which Duncan was employed, Prepaid Legal Services, to attempt to show, by facts and not "sound bites," that it was an illegal operation. See Tex. Bus. & Com. Code Ann. § 17.461 (Vernon 2002). Her obvious purpose was to attach the label "pyramid scheme" to Duncan.

The prosecutor has demonstrated through her questioning neither that the Prepaid Legal Services ⁽³⁾ program was an illegal pyramid scheme nor that Duncan admitted being a member of an illegal pyramid scheme. In fact, he specifically disputed the prosecutor's characterization of his employer as an illegal operation. Duncan's counsel did make some attempt to point out that the prosecutor had mischaracterized Duncan's testimony, but counsel did not object to the prosecutor's manipulation of testimony until the testimony was repeated several times. However, no explanation of trial counsel's reasoning or possible strategy appears in the record of this case. Any claim of ineffective assistance is required to be "firmly founded" in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation, if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We will not conclude that the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. In Osorio v. State, 994 S.W.2d 249 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd), the Fourteenth Court of Appeals held that, notwithstanding the prosecutor's blatant injection of erroneous and derogatory remarks about "Columbian cocaine" into the proceedings, called by the concurring opinion "needless prosecutorial misconduct," Id. at 253-54, the appellant's claim that his counsel was ineffective for failure to object could not be sustained because there was no evidence in the record as to trial counsel's reasoning for failure to object. The court held that with nothing in the record, the appellant had failed to overcome the recognized presumption that counsel's actions (or, in this case, inactions) were based on sound trial strategy.  Id. at 253.

Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. Thompson, 9 S.W.3d at 812. One way to present evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. See Motley v. State, 773 S.W.2d 283, 290 (Tex. Crim. App. 1989) (evidence relating to counsel's trial strategy appeared in the record because a motion for new trial was held on the issue of counsel's ineffective assistance). Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex. Code Crim. Proc. Ann. art. 11.01, et seq. (Vernon 1977 & Supp. 2002).

The Texas Court of Criminal Appeals has recognized that a reviewing court will only rarely be provided with a record capable of providing a fair evaluation of the merits of a claim of ineffective assistance. Thompson, 9 S.W.3d at 813; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

When direct appeal does not provide an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, a claim of ineffective assistance of counsel will properly be raised through habeas corpus, even if it had been previously rejected on direct appeal. Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980), quoted by Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); see also Jackson, 973 S.W.2d at 957; Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).

The record in the present case is silent as to trial counsel's strategy. The State contends there is a conceivable trial strategy, i.e., counsel intended to allow Duncan to explain his answers regarding the "pyramid scheme." We also observe that because the matter was tried to the court and not a jury, counsel may have assumed the trial court was aware of the statute authorizing prepaid legal services (Article 5.13-1 of the Texas Insurance Code) and recognized that the elements of the "pyramid scheme," contained in Section 17.461 of the Texas Business and Commerce Code is defined as having certain prerequisites that were not shown in evidence to exist in the program in which Duncan had participated. We are required, therefore, to hold that Duncan has not met his burden to overcome the presumption of professional assistance and sound trial strategy. This point of error is overruled.

The judgment of the trial court is affirmed.

Ben Z. Grant

Justice

Date Submitted: May 30, 2002

Date Decided: August 8, 2002

Publish

1. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

2. All references hereafter are to the Texas Code of Criminal Procedure, unless otherwise specified.

3. Prepaid Legal Services contracts were authorized by Article 5.13-1 of the Texas Insurance Code, which was initially passed in 1975.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00137-CR

                                                ______________________________

                               ANTHONY F. TOMASHESKI, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 5th Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 07F0235-005

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Anthony F. Tomasheski paid Andrew Stokes a visit, but this was not a cordial house call.  Angered by an outstanding debt, Tomasheski greeted Stokes by punching him in the face.  Stokes reached for his black baseball bat to protect himself.  The unsuccessful maneuver allegedly led to Tomasheski’s possession of the bat and resulting blows to Stokes’ shoulder and head. Tomasheski left after Stokes produced a hundred dollar bill.  Neighbor Richard Knight heard the noise from the fight and left his house, finding Stokes “pretty beat up.”  He was “bleeding from his scalp” “and in his face,” “wasn’t completely conscious,” and was “grabbing on his shoulder . . . like he was hurting.” Stokes required a craniotomy and fell into a coma for two days as a result of his injuries.

            Tomasheski was charged with two counts of aggravated assault.  Count one alleged he “intentionally, knowingly, or recklessly cause[d] serious bodily injury to Andrew Stokes by striking [him] with a baseball bat” and with his fists.  Count two alleged he intentionally or knowingly caused bodily injury to Stokes in the manner described in count one, and also used or exhibited a baseball bat as a deadly weapon during the alleged assault.  The jury found Tomasheski guilty of only count one of the State’s indictment.  It assessed a $5,000.00 fine and five years’ confinement and recommended the trial court suspend Tomasheski’s sentence and place him on community supervision. 

            We affirm the trial court’s judgment, because (1) the amended judgments resolve Tomasheski’s judgment complaints and (2) the exclusion of extraneous-offense evidence was harmless.

(1)        The Amended Judgments Resolve Tomasheski’s Judgment Complaints

            Initially, the trial court issued two judgments, both reflecting guilt for aggravated assault with a finding that Tomasheski exhibited a deadly weapon during the commission of the crime.  Each judgment suspended a five-year sentence and placed Tomasheski on community supervision for a period of ten years.  Because the jury found Tomasheski guilty of only count one of the State’s indictment, the first point of error on appeal complained that the trial court erroneously entered a judgment of conviction on count two. Realizing this mistake, the trial court issued amended judgments of conviction.  The first amended judgment finds Tomasheski guilty of aggravated assault, removes the deadly weapon finding, imposes the jury-assessed $5,000.00 fine, and suspends the sentence with imposition of community supervision for a period of ten years.  The second judgment reflects that the jury found Tomasheski “not guilty.”  We find that the trial court’s amended judgments resolve the complaint raised in Tomasheski’s first point of error.  It is overruled. 

            Next, Tomasheski argues that the trial court erred in making him pay the jury’s assessed fine of $5,000.00 as a condition of community supervision.  Because the trial court’s amended condition of community supervision removes the requirement that Tomasheski pay the $5,000.00 as restitution, we overrule this point of error as well. 

(2)        The Exclusion of Extraneous-Offense Evidence Was Harmless

            Tomasheski asserted the issue of self-defense. Outside of the presence of the jury, he told the trial court he punched Stokes once because Stokes was “rushing” him, trying to hit him first.  When Stokes retrieved the baseball bat and “tried to whack” his opponent, Tomasheski “grabbed him and the bat.”  Tomasheski wanted to introduce testimony of extraneous offenses describing Stokes’ violent character to establish a reasonable belief that his use of force against Stokes was “immediately necessary to protect [himself] against [Stokes’] use or attempted use of unlawful force.”  See Tex. Penal Code Ann. § 9.31 (Vernon Supp. 2009).  He wanted to demonstrate that “his perception he was in danger was justified.”  Specifically, Stokes’ ex-wife and Skip Dewberry were prepared to testify that Stokes had previously assaulted them, as well as others, with his baseball bat. The State objected that the evidence was irrelevant, and alternatively, violated Rules 403 and 404 of the Texas Rules of Evidence.  The trial court excluded this evidence under Rule 403, a decision Tomasheski complains was erroneous. 

            In excluding evidence of the extraneous offenses, the trial court stated, “It’s evidence that’s offered essentially to show that the victim’s a bad person.  It’s the old-son-of-a-gun had it coming defense.”  The court pointed to the fact that only Tomasheski and Stokes were present during the assault and ruled “that this is essentially a swearing match between the defendant and the victim, the offer of extraneous evidence creates a danger of unfair prejudice.”  Tomasheski argues that the trial court’s reasoning in excluding the proffered evidence denied him his “constitutional right to present a meaningful defense” and suggests that the trial court acted as the fact-finder on the question of self-defense.  

            One unusual twist that colors our entire analysis of this issue is that, while Tomasheski admitted to the initial punch, he denied hitting Stokes with the bat.  Thus, it appears that his self-defense claim can apply only to the initial punch, not to any assault with the bat.  Therefore, we examine this issue in light of the question of whether the evidence of the extraneous offenses would help establish his reasonable belief that punching Stokes was “immediately necessary to protect [him] against [Stokes’] use or attempted use of unlawful force.”  Because, here, the self-defense claim legitimately addressed only the initial punch, not the assault with Stokes’ bat, the essential force of the proffered testimony about Stokes’ prior use of his bat was a general tendency toward violence, rather than a particular danger from Stokes’ bat.

            A trial court’s decision to admit or exclude evidence is reviewed only for an abuse of discretion.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).  We do not disturb a trial court’s ruling if the decision to admit evidence is within the “zone of reasonable disagreement.”  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not substitute our own decision for that of the trial court.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).  If the trial court’s decision on the admission of evidence is supported by the record, the trial court will not be reversed.  Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379. 

            Although the trial court ruled that the extraneous offenses were admissible under Rule 404, it excluded the evidence after conducting a Rule 403 balancing test.  “Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.  The following relevant criteria are used in determining whether the prejudice of Stokes’ extraneous offenses substantially outweighed its probative value:

(1)        how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent . . .;

(2)        the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”;

(3)        the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;

(4)        the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (citing Montgomery, 810 S.W.2d at 388–90).  We must give appropriate deference to the trial court’s determination that the probative value of the evidence in question was substantially outweighed by the danger of unfair prejudice.  Dudzik v. State, 276 S.W.3d 554, 561 (Tex. App.—Waco 2008, pet. ref’d) (citing Moses, 105 S.W.3d at 627).

            A.        The Extraneous-Offense Evidence Was Relevant

            Would Stokes’ extraneous offenses, in which he used a baseball bat to assault others, aid in establishing the reasonableness of a belief by Tomasheski that the initial punch was “immediately necessary to protect [him] against [Stokes’] use or attempted use of unlawful force?” Because Tomasheski was “aware of Mr. Stokes’ history,” we find the extraneous offenses make Tomasheski’s self-defense claim, as to the punch, more probable.^[1]  This factor weighs in favor of admission.

            B.        The Evidence Would Not Impress the Jury in Some Irrational Way

            One question is the potential of Stokes’ extraneous-offense evidence to impress the jury “in some irrational but nevertheless indelible way.”  The State points to the trial court’s suggestion that the evidence would “essentially show that the victim is a bad person deserving of his injuries” and argues this was proof that the jury would be impressed in some irrational, but nevertheless indelible way.  We consider Rule 404 in analyzing this Rule-403 factor, due to the trial court’s employed reasoning.  The Texas Court of Criminal Appeals recently explained:

The defendant may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the “reasonableness of defendant’s claim of apprehension of danger” from the victim.  This is called “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not.  This theory does not invoke Rule 404(a)(2) because Rule 404 bars character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in conformity with his violent character.  Here, the defendant is not trying to prove that the victim actually is violent; rather, he is proving his own self-defensive state of mind and the reasonableness of that state of mind.

Ex parte Miller, No. AP-76,167, 2009 WL 3446468, at *4 (Tex. Crim. App. Oct. 28, 2009) (citations omitted).  Rule 404(a)(2) provides that “[i]n a criminal case . . . evidence of a pertinent character trait of the victim of the crime offered by an accused is allowed” to prove action in conformity therewith.  “[I]n cases where a person’s character or character trait is an essential element of a . . . defense, proof may also be made of specific instance of that person’s conduct.”  Tex. R. Evid. 405; Mozon, 991 S.W.2d at 846; Dudzik, 276 S.W.3d at 561. 

            The purpose of Rule 404, which allows inclusion of a victim’s extraneous offenses, is to develop a propensity for violence that can support a theory of self-defense.  Excluding evidence of a type the Legislature intended to be before a jury, by concluding that a fact-finder might conclude a victim deserved his or her injuries, should be rarely done.

            Instead, here we ask whether the evidence tends to tempt the jury into making a finding on grounds apart from proof relating to the offenses or defenses charged.  Morales v. State, 293 S.W.3d 901, 912 (Tex. App.—Texarkana 2009, pet. ref’d).  This factor seeks to limit a jury’s finding based on emotional response.  See Ex parte Lane, 303 S.W.3d 702, 715 (Tex. Crim. App. 2009).  The extraneous offenses were probative of Tomasheski’s belief that punching Stokes was reasonable, a matter the jury was charged with deciding.  It does not appear from the record why knowledge of Stokes’ extraneous offenses would tempt the jury into a verdict, decided on irrelevant grounds, that Tomasheski acted in self-defense in punching Stokes.  See id.  Thus, we do not believe that the jury would be improperly impressed by the extraneous offenses given the facts of this case.  The second factor also favors admission of the excluded evidence.

            C.        Length of Time to Present Extraneous Offenses Would Likely Be Short

            Next, the proffered evidence would be established by Stokes’ ex-wife and Dewberry, who would testify that Stokes assaulted them with a baseball bat.  It would likely take little time to present these witnesses.  The third factor also favors admission of the extraneous offenses.

            D.        Tomasheski’s Need for the Evidence Was Slim

            The next factor is Tomasheski’s need for this evidence to prove a fact of consequence.  After the hearing on the State’s motion in limine, Tomasheski took the stand during guilt/innocence and testified Stokes was “coming at [him]” with his fists clenched.  Tomasheski “decked him . . . right on the mouth.”  Stokes got up, quickly walked four or five feet to another room, and came out swinging the baseball bat at Tomasheski.  Tomasheski then testified he took the bat from Stokes, pushed him to the ground, and left without taking the bat.^[2]  As stated, Tomasheski denied hitting Stokes with the bat.  Although Tomasheski might have wanted the jury to hear evidence of extraneous offenses to help establish his reasonable belief that punching Stokes was necessary for his self-defense, the trial court was within its discretion to find the actual need for the evidence was minimal.  This factor weighs against admission.

            Rule 403 “creates a presumption of admissibility of all relevant evidence and authorizes a trial judge to exclude such evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.’” Mozon, 991 S.W.2d 841 (citation omitted).  Evidence will be considered “unfairly prejudicial” only when it has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one.  Id. (citing Montgomery, 810 S.W.2d at 389).  Only one of the four factors in this case weighs against the admission of the extraneous offenses to support Tomasheski’s belief that immediate force was necessary. In balancing the Rule-403 factors, we find that the probative value of the extraneous offenses was not substantially^[3] outweighed by the danger of unfair prejudice.  The evidence of Stokes’ extraneous offenses should have been allowed.  But that error is not reversible unless it was also harmful to Tomasheski.

            Tomasheski argues in his brief that exclusion of extraneous offenses violated his constitutional right to due process and that, therefore, we are to evaluate harm under a constitutional harm analysis. Points of error on appeal must correspond or comport with objections and arguments made at trial.  Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)).  “Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review.”  Id.; see Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).  Tomasheski “did not fairly and specifically object to the exclusion of this evidence on the constitutional due process basis he now urges on appeal.”  See id.  We will not address Tomasheski’s nonpreserved due process claim.

            We examine the record as a whole when evaluating harm from nonconstitutional error flowing from the exclusion of relevant evidence, “and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless.”  Walters v. State, 275 S.W.3d 568, 571 (Tex. App.—Texarkana 2008, no pet.) (citing Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).

            Because Tomasheski denied hitting Stokes with the baseball bat, he could not have employed the theory of self-defense for that part of the alleged assault.  Thus, admission of the extraneous-offense evidence would have no bearing on the question of Tomasheski’s motivation when he struck Stokes with a baseball bat as the State alleged in count one of the indictment.  In this case, Stokes told the jury Tomasheski hit him with the baseball bat, Knight testified to Stokes’ “bleeding from his scalp” and shoulder injury, and the jury heard Stokes required a craniotomy and fell into a coma. Assessing the credibility of the testimony is within the province of the jury.  Stubblefield v. State, 79 S.W.3d 171, 176 (Tex. App.—Texarkana 2002, pet. ref’d).  Considering the evidence presented in this record, the trial court was free to disbelieve Tomasheski’s assertion that he only punched Stokes once and that he did not hit him with the baseball bat.  The indictment also alleged Tomasheski hit Stokes with his hands, a fact he confirmed, but testified was done in self-defense. Again, the jury was free to believe Stokes’ testimony that Tomasheski was the first aggressor.  Therefore, because we are fairly assured that exclusion of the extraneous offenses did not influence the jury or had but a slight effect—in its finding against Tomasheski on his claim that his initial punch was in self-defense—we conclude that there was no harm.

            We affirm the judgment of the trial court. 

                                                                                                Josh R. Morriss, III

                                                                                                Chief Justice

Date Submitted:          June 3, 2010   

Date Decided:             June 23, 2010

Do Not Publish

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^[1]The general rule is that all evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable, is admissible.  Tex. R. Evid. 401, 402.  The trial court agreed that evidence of Stokes’ character was relevant.

^[2]In addition to this evidence, Tomasheski introduced reputation testimony that Stokes did not have a good reputation for truthfulness.  The State argues this reduced Tomasheski’s need for the evidence.  However, Stokes’ reputation for truthfulness, as opposed to his propensity for violence, was not a fact of consequence in the case. 

^[3]We note that the trial court’s finding did not expressly include the word “substantially” in its ruling excluding the evidence.

Now, considering that there’s two episodes here and considering the fact that the defendant was in the victim’s house, considering the fact that the defendant had an opportunity to leave the house before the victim brought the baseball bat back, then it seems to me under the Mozon case, even though the evidence of extraneous acts is admissible under 404, it is not admissible under 403 because the danger of unfair prejudice outweighs the probative value.  It’s essentially as the dissent stated in the Mozon case.

Missing from that finding is the key term used in Rule 403—that danger of unfair prejudice substantially outweighs the probative value.