Wilbert Hamilton v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-250 CR ____________________ WILBERT HAMILTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 1-A District Court Tyler County, Texas Trial Cause No. 9421 MEMORANDUM OPINION A jury found Wilbert Hamilton guilty of aggravated assault, a second degree felony offense. Tex. Pen. Code Ann. §22.02 (Vernon Supp. 2004). The trial court assessed Hamilton's punishment at twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. We will affirm. In a sole appellate issue, Hamilton asserts the trial court erred when it admitted evidence of his three prior felony convictions over defense counsel's objection. The State maintains that the extraneous offenses were admissible to rebut Hamilton's claim of self-defense. At trial, Hamilton presented evidence of self defense through his testimony. Hamilton was asked to describe what was "going through [his] mind" when he saw the assault victim with a weapon. Hamilton responded: Well, my natural instinct was he's fixing to beat on me. Then when I seen him coming to me, my natural instinct was to attack him before he attacks me to hurt me. That's the only thing - you know, I didn't have no other choices. It was a hand-to-hand situation - a dire situation. Under cross examination, Hamilton testified that his intent was not to hurt the victim, but rather was "to protect [himself]." The jury charge included a "deadly force in defense of a person" instruction, which provided, in part, that deadly force would be justified if a person believed such force were immediately necessary to protect himself against use or attempted use of unlawful deadly force. Also included in the charge was the instruction that the extraneous offense evidence was to be considered for the sole purpose of rebutting Hamilton's self-defense claim. We review a trial court's decision to admit evidence over objections for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). To be admissible, evidence must be relevant to some material issue in the case and not simply be proof of character conformity. Moses, 105 S.W.3d at 626. An appellate court should not conduct a de novo review of the record and "as long as the trial court's ruling was at least within the zone of reasonable disagreement," we will not overrule the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)(op. on rehearing). Generally, a defendant's prior crimes or bad acts are inadmissible to prove he has a bad character or a propensity to commit the offense charged. Id. at 386; Tex. R. Evid. 404(a)-(b), 405(a). Such evidence, however, may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or lack of mistake or accident. Montgomery, 810 S.W.2d at 387; Tex. R. Evid. 404(b). The Texas Court of Criminal Appeals has held that when a defendant claims self-defense, the State may introduce evidence of other violent acts where the defendant was an aggressor in order to show intent. Halliburton v. State, 528 S.W.2d 216, 217-18 (Tex. Crim. App. 1975). We previously have followed Halliburton as have other courts of appeal. Yarbough v. State 753 S.W.2d 489, 490-91, (Tex. App.--Beaumont 1988, no pet.); Johnson v. State, 963 S.W.2d 140, 144 (Tex. App.--Texarkana 1998, pet. ref'd). Here, we see no reason to depart from precedent. The trial court did not abuse its discretion in admitting evidence of the extraneous offenses. We overrule Hamilton's sole appellate issue and affirm his conviction. PER CURIAM Submitted on April 28, 2004 Opinion Delivered June 16, 2004 Do not publish Before McKeithen, C.J., Burgess, and Gaultney, JJ.