Brenda Kay Davis v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00132-CR ______________________________ BRENDA KAY DAVIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 20678 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Brenda Kay Davis was convicted by a jury of the felony offense of forgery. The offense was enhanced to a first-degree felony because Davis had two prior felony convictions. The trial court sentenced Davis to twenty-five years' imprisonment. Davis appeals, and, in a single point of error, contends the trial court abused its discretion in allowing testimony that Davis was involved in a homosexual relationship. She contends that evidence of her relationship with another woman, Wendy Neal, was irrelevant, or alternatively, that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. We overrule these contentions and affirm the judgment. Background Davis was a passenger in a truck in Blossom, Texas. Tom Barr, a Lamar County deputy sheriff, stopped the driver of the truck. After approaching the truck, Barr noticed two open cans of beer in the truck and determined that the driver of the vehicle was under the age of twenty-one. Barr also determined that the driver was driving without a license or proof of insurance. Barr arrested the driver and then arrested Davis for violating the open container law and for furnishing alcohol to a minor. Barr conducted an inventory of the truck after the arrests. He found ten counterfeit $10.00 bills in the truck's console. Barr also found an address book on the floorboard, containing several credit cards and uncashed checks that did not belong to Davis. Davis was taken to the Lamar County jail, where she was searched. That search uncovered $78.00 in counterfeit money in one of Davis' pockets. The State introduced evidence that Davis was involved in a romantic relationship with Neal. The State presented the shift sergeant at the Lamar County jail, who testified Neal had visited Davis approximately twenty-eight times during her stay there. The sergeant also testified Davis and Neal referred to each other as "wife." The State presented an investigator with the Collin County Sheriff's Office, who testified Davis and Neal were "girlfriends" or "significant others." The State also introduced evidence that Neal had been investigated for forgery and that investigators had found a scanned image of United States currency on her home computer. Standard of Review We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g). Evidence Was Relevant Evidence that is not relevant is inadmissible. Tex. R. Evid. 402. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. There is no purely legal test to determine whether evidence will tend to prove or disprove a proposition; it is a test of logic and common sense. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). The jury charge in this case allowed conviction under two theories. One, the jury could convict Davis if it found she possessed counterfeit money with the intent to defraud or harm another. Two, the jury could convict Davis if it found that she aided or attempted to aid Neal in the commission of forgery. Under the first theory, it was necessary for the State to prove Davis knew the counterfeit money she possessed was actually counterfeit. See Chesteen v. State, 712 S.W.2d 553, 554 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd). It is impossible to form the intent to defraud or harm someone by using counterfeit money without the prior knowledge that the money is counterfeit. See Pfleging v. State, 572 S.W.2d 517, 519 (Tex. Crim. App. [Panel Op.] 1978). If Davis was associated with people involved in forgery, the jury could draw the inference it was more probable she had the requisite prior knowledge. To this end, the State introduced evidence of the relationship between Davis and Neal. The fact that Davis had a close relationship with someone who had been investigated for forgery made it more probable she knew the money she possessed at the time of her arrest was forged. Under the second theory, that Davis had aided or attempted to aid Neal in committing forgery, it was important for the State to prove whether, and how well, Davis knew Neal. The fact that Davis had a close and intimate relationship with Neal made it more probable she had attempted to aid Neal in the commission of forgery than if the two women had been strangers or mere acquaintances. Therefore, the evidence of the relationship between Davis and Neal was relevant. Probative Value Not Outweighed by Unfair Prejudice Davis further contends that, even if the evidence of her relationship with Neal was relevant, that evidence should not have been admitted because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Evidence which is relevant and otherwise admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. "Unfair prejudice" does not simply mean that the evidence will injure or prejudice the opponent's case which is, after all, the central point of offering evidence. Garrett v. State, 998 S.W.2d 307, 316 (Tex. App.—Texarkana 1999, pet. ref'd, untimely filed). Rather, it refers to an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). A Rule 403 balancing test includes the following factors: 1) how compellingly the extraneous act serves to make a fact of consequence more or less probable; 2) the potential that the evidence of the other act 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; and 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 help establish this act, and is this act related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). We will assume, for the purposes of this discussion, that evidence a defendant was involved in a homosexual relationship amounts to unfair prejudice. Applying the four factors noted above, we hold that the danger of unfair prejudice in this case did not substantially outweigh the probative value of the evidence. First, evidence Davis had a close relationship with Neal certainly made it much more probable that she aided her in the commission of forgery. Second, we are aware that evidence of this nature may have a tendency to influence some jurors in an irrational manner, but we are not convinced that influence would be of such a magnitude as to be indelible. Third, the State used very little time to develop this evidence, presenting two witnesses who testified very briefly about Davis' relationship with Neal. Finally, the State needed evidence that Davis had some relationship with Neal in order to prove its theory that she aided Neal in the commission of forgery. Conclusion This Court will reverse only on a clear abuse of discretion. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) (op. on reh'g). We hold the evidence that Davis was involved in a homosexual relationship with Neal was relevant and the probative value of that evidence was not substantially outweighed by the danger of unfair prejudice. The trial court, therefore, operated within the boundaries of its discretion. We affirm the judgment. Donald R. Ross Justice Date Submitted: February 1, 2006 Date Decided: March 2, 2006 Do Not Publish