Junious Lewis Heard v. State

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) JUNIOUS LEWIS HEARD, ) No. 08-02-00253-CR ) Appellant, ) Appeal from ) v. ) 70th District Court ) THE STATE OF TEXAS, ) of Ector County, Texas ) Appellee. ) (TC# A-27,568) MEMORANDUM OPINION Junious Lewis Heard appeals his conviction for murder. A jury found Appellant guilty and assessed punishment at forty-five years' imprisonment. Finding no evidentiary error, we affirm. FACTUAL SUMMARY On April 24, 1999, sisters Darlena Rand and Audrea Heard purchased crack cocaine and gin and returned to their mother's home where they lived along with Audrea's husband, Appellant, and his mother, who suffered from Alzheimer's disease. They found Appellant standing at the front door. Darlena recommended that they not go inside since Appellant was there, but Audrea said they should. Appellant began yelling at Audrea. The sisters entered the house, went into Darlena's bedroom, and locked the door. They then smoked crack for about thirty minutes and drank some of the gin. Appellant began beating on the bedroom door and Audrea opened it to see what he wanted. Appellant asked for Audrea's address book and wanted her to dial a number. After dialing the number, Audrea went back into the bedroom and the sisters continued drinking. When Appellant knocked on the door a second time, Audrea again went to see what he wanted. Darlena stood in the doorway and saw that Appellant and Audrea seemed to be embracing; she then shut her bedroom door again. In the early morning hours of April 25, Darlena heard Audrea scream her name. Darlena grabbed scissors from her bedroom and ran to help her. Darlena saw Appellant stabbing Audrea, and she began hitting him in the back with the scissors. Appellant then turned toward Darlena with a knife, pushed her out of the way, and ran out of the door. Darlena screamed for her mother and called 911. Upon arrival, the paramedics checked Audrea's pulse and breathing and started treatment even though they did not detect a pulse. She had two stab wounds: one on the right arm and one through the chest. Appellant claimed that Audrea voluntarily entered their bedroom around 2:15 a.m. while he was speaking to his mother. She had come in to get her socks because she was leaving the house. Appellant believed that Audrea was going outside to flag down cars to prostitute herself for money to buy more crack. Appellant asked Audrea to stay and turned around to lock the bedroom door. When he turned back around, Audrea had a knife in her hands and a struggle ensued. Appellant remembered his mother telling them to stop, and he was leaving the bedroom as Darlena was approaching. Appellant claimed he did not stab his wife and that he did not know that she was injured. EXTRANEOUS OFFENSE EVIDENCE Appellant filed a motion in limine objecting to the State's disclosure of intent to use evidence falling under Rule 404(b). The State argued the incidences were admissible to show intent, motive, absence of mistake, the common scheme of the relationship, and the nature of the relationship between Appellant and Audrea. The trial court granted the motion as to Appellant's use of controlled substances, as to his assault upon Audrea on August 12, 1997, and as to assaults between January 1, 1997 and April 25, 1999. The court denied the motion as to Appellant's threat to kill Audrea on May 3, 1998, his choking and hitting Audrea on October 23, 1998, and his threats to kill Audrea between January 1, 1997 and April 25, 1999. He ruled that the threats of death, particularly those involving a deadly weapon, were relevant to the issues of motive and intent. However, the judge intended to allow evidence of family violence only if specific as to the date. On the day of trial, the judge decided that he would admit incidences of domestic violence as an indication of the prior relationship between the Appellant and Audrea under Code of Criminal Procedure Article 38.36. Appellant objected based on the relevance, materiality, and prejudicial nature of the evidence. When Darlena was questioned at trial regarding Appellant's prior conduct toward Audrea, Appellant objected again based on materiality, relevance, and the prejudicial nature of the testimony. Appellant also objected that the State's use did not fit within the exceptions of intent, motive, or opportunity under Rule 404(b). The judge overruled these objections. Darlena testified that on May 3, 1998, Appellant was ranting and raving because he could not get into the bathroom and he claimed that Audrea had someone hidden inside. Appellant had a knife, and Audrea asked him to leave the house. Audrea and Darlena locked the door, but Appellant continued to beat on the door while holding the knife. Darlena was concerned for Audrea's safety. Then, on October 23, 1998, Appellant assaulted Audrea, picking her up by her throat, calling her names, and threatening to kill her. Darlena testified that this was not the first time Appellant had threatened Audrea, nor was it the last. Appellant would get violent with Audrea once or twice a week. The last time Appellant threatened to kill Audrea was two weeks before her death. ADMISSION UNDER RULE 404(b) AND ARTICLE 38.36 As a rule, an accused may not be tried for some collateral crime or for being a criminal generally. Tex.R.Evid. 404(b); Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App. 1983). In the face of a proper objection, evidence of other wrongful acts is not admissible to prove the character of the person to establish that he acted accordingly regarding the alleged offense. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.--El Paso 1992, pet. ref'd). An extraneous offense may be admissible, however, if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Montgomery, 810 S.W.2d at 387; Lazcano, 836 S.W.2d at 657. Evidence which logically serves such purposes as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" is relevant beyond its tendency to prove conforming character. Montgomery, 810 S.W.2d at 387; Lazcano, 836 S.W.2d at 657; Tex.R.Evid. 404(b). Extraneous offenses are also admissible to rebut a defensive theory. Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.--San Antonio 1990, pet. ref'd). Finally, in a murder prosecution, evidence relating to the previous relationship between the defendant and the deceased is admissible, as is evidence relating to the condition of the defendant's mind at the time of the offense. Tex.Code Crim.Proc.Ann. art. 38.36(a)(Vernon Pamphlet 2004). Whether objected-to evidence of other crimes, wrongs, or acts has relevance apart from character conformity is a question for the trial court. Montgomery, 810 S.W.2d at 391; Castillo v. State, 910 S.W.2d 124, 127 (Tex.App.--El Paso 1995, pet. ref'd). The trial court must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. Id. An appellate court should not reverse the trial court whose ruling was within the zone of reasonable disagreement. Id. The indictment alleged that Appellant intentionally and knowingly caused the death of Audrea Heard by stabbing her with a knife, a deadly weapon. Because Appellant contended that his conduct was not intentional or knowing, the jury was also given manslaughter, criminal negligence, and aggravated assault charges. The jury was also instructed regarding self defense. Consequently, Appellant's intent was a material issue at trial. Evidence that Appellant had assaulted and threatened to kill Audrea on previous occasions was evidence of an ongoing course of violent conduct toward Audrea and tended to make it more probable than not that it was Appellant's desire to cause Audrea's death. The evidence also reveals Appellant's state of mind at the time of the offense and tends to rebut his defensive theories. However, even if evidence is properly admitted under Article 38.36, it must still meet the requirements of Rule 404(b) and withstand the balancing test under Rule 403, just as evidence under Rule 404(b) must also meet the balancing test under Rule 403. See Smith v. State, 5 S.W.3d 673, 679 (Tex.Crim.App. 1999); Montgomery, 810 S.W.2d at 389. ADMISSION UNDER RULE 403 In his sole point of error, Appellant challenges the trial court's admission of his threats against Audrea under Rule 403, asserting that the probative value of the evidence is outweighed by the danger of unfair prejudice. Rule 403 provides: Although relevant, 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. Extraneous offense evidence, which is relevant beyond proof of character conformity, is presumed admissible subject to exclusion under Rule 403 only if the opponent of the evidence timely objects and demonstrates that the danger of unfair prejudice substantially outweighs its probative value. Montgomery, 810 S.W.2d at 389; Lazcano, 836 S.W.2d at 657. An appellate court should not engage in a de novo review of the record in order to determine whether the probative value of the extraneous act is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 392; Castillo, 910 S.W.2d at 127. In conducting our review, we must measure the trial court's ruling against the relevant criteria by which a Rule 403 decision is to be made. Id. Relevant criteria include whether the ultimate issue was not seriously contested by the opponent; whether the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; whether the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; and whether the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious. Montgomery, 810 S.W.2d at 392-93. Under this approach, we determine the admissibility of extraneous offense evidence by reviewing not only the relevance of that evidence, but the State's need for it as well. See id. at 392; Garcia v. State, 827 S.W.2d 27, 30 (Tex.App.--Corpus Christi 1992, no pet.). Applying this criteria to the issue of intent, evidence of extraneous acts is admissible to prove scienter, where intent or guilty knowledge is an essential element of the State's case and cannot be inferred from the act itself. See Montgomery, 810 S.W.2d at 392; Garcia, 827 S.W.2d at 30. Appellant generally argues that the evidence was prejudicial and that the admission of the evidence was not needed to prove his intent. He contends that the record is replete with evidence of the two chaotic days surrounding and leading to Audrea's death and that the State never claimed a lack of evidence showing intent before offering the evidence at trial. However, Appellant's defensive theories controverted the State's case against him. The State used the continuing course of violent conduct towards Audrea to refute Appellant's theory of self defense. Appellant was charged with intentionally and knowingly causing Audrea's death; without this evidence, the State would not have been able to prove Appellant's state of mind and intent at the time of the offense, and the jury could not have found that he intentionally and knowingly caused Audrea's death instead returning a verdict of manslaughter, criminal negligence, or aggravated assault. See Williams v. State, 927 S.W.2d 752, 758 (Tex.App.--El Paso 1996, pet. ref'd)(holding that evidence of extraneous offenses shed light on Appellant's state of mind at the time of the offense and rebutted Appellant's defensive theories that the victim was the aggressor and Appellant acted under sudden passion); Pena v. State, 864 S.W.2d 147, 150 (Tex.App.--Waco 1993, no pet.)(holding that Appellant's threats to kill his wife by cutting her throat were relevant to show their previous relationship and Appellant's state of mind at the time of the offense). Therefore, the evidence possessed significant probative value. Although any extraneous offense results in some prejudicial effect, the evidence in this case did not result in unfair prejudice to Appellant. Due to the substantial probative value of this evidence, the trial court did not abuse its discretion in admitting it over Appellant's objections. The sole point of error is overruled and the judgment affirmed. April 8, 2004 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish)