Maurice Newman v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Maurice Newman Appellant Vs. No. 11-01-00066-CR B Appeal from Dallas County State of Texas Appellee The jury convicted appellant of murder and assessed his punishment at confinement for 18 years and a fine of $5,000. Appellant appeals after having been granted an out-of-time appeal by the Texas Court of Criminal Appeals. We affirm. In his first point of error, appellant asserts that he should be granted a new trial because a portion of the reporter=s record was lost or destroyed through no fault of his own. Eva Ann Walding, the Official Court Reporter for the 194th Judicial Court of Dallas County, filed an affidavit stating that, during appellant=s trial in March of 1993, she had a battery failure in her court-reporting machine at the end of the State=s argument during the punishment stage of the trial. Walding stated that, even though the machine failed to work properly, the record was still reported on the paper tape of the machine. The paper notes were filed with the district clerk=s office. However, when the case was appealed, and Walding attempted to retrieve the paper notes for the missing portion of the argument, she was unable to locate the particular notes. She stated in her affidavit that she has no way of preparing the missing portion of the statement of facts. TEX.R.APP.P. 34.6(f) provides: (f) Reporter=s Record Lost or Destroyed. An appellant is entitled to a new trial under the following circumstances: (1) if the appellant has timely requested a reporter=s record; (2) if, without the appellant=s fault, a significant exhibit or a significant portion of the court reporter=s notes and records has been lost or destroyed orBif the proceedings were electronically recordedBa significant portion of the recording has been lost or destroyed or is inaudible; (3) if the lost, destroyed, or inaudible portion of the reporter=s record, or the lost or destroyed exhibit, is necessary to the appeal=s resolution; and (4) if the parties cannot agree on a complete reporter=s record. Appellant argues that the State Acould have@ and Amight have possibly@ made objectionable or reversible comments during the unrecorded portion of the prosecutor=s argument. Appellant=s argument is based on mere speculation that the prosecutor made improper remarks during the last portion of the argument. Appellant has not shown that the missing portion of the record is Anecessary to the appeal=s resolution.@ Issac v. State, 989 S.W.2d 754 (Tex.Cr.App.1999). Appellant=s first point of error is overruled. Appellant asserts in his second point that the trial court erred in admitting evidence of an extraneous offense without giving appellant proper notice as required by TEX.R.EVID. 404(b). In overruling appellant=s objection, the trial court, outside the presence of the jury, stated that the court of criminal appeals had held on numerous occasions, Athat a jury is entitled to know the totality of the circumstances that surrounded the event in question which form the basis of the prosecution and that an event does not occur in a vacuum.@ The court further stated that the State could bring before the jury evidence that appellant and others with appellant were underage and that they were drinking beer and smoking marihuana before the murder. The State introduced evidence that approximately two hours before the murder, appellant and some of his companions were drinking beer and smoking marihuana. Felix Lamond Fisher agreed that, when they went to the store where the shooting occurred to get more beer, they were all a Alittle drunk.@ We hold that the challenged evidence was same transaction contextual evidence. This court in Hodge v. State, 940 S.W.2d 316 (Tex.App. - Eastland 1997, pet=n ref=d), held that same transaction contextual evidence is not subject to the requirement in Rule 404(b) that the State must give the accused notice of the State=s intent to introduce such evidence. In Hodge, we held that Rule 404(b) by definition excludes from the notice requirement crimes arising in the Asame transaction.@ See also Patton v. State, 25 S.W.3d 387, 392 n. 4 (Tex.App. - Austin 2000, pet=n ref=d). Moreover, if the trial court erred in admitting the challenged evidence, we hold that the error did not affect appellant=s substantial rights. Any error was harmless under TEX.R.APP.P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997). Appellant=s second point of error is overruled. In the third point of error, appellant argues that the evidence that appellant and his companions were drinking beer and smoking marihuana before the shooting violated Rule 404(b) because the evidence was introduced only to show the character of appellant. Appellant further contends that, if the extraneous offense was relevant, the probative value was substantially outweighed by its prejudicial effect. The court in Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Cr.App.200), stated: [T]his Court has held that Ait has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.@ Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986). The court in Mann v. State, 718 S.W.2d 741, 744 (Tex.Cr.App.1986), said: When the balancing test is applied, evidence of the context of the offense is almost always admissible under the reasoning that events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all evidence may be realistically evaluated. See Maddox v. State, 682 S.W.2d 563 Tex.Cr.App. 1985)(Clinton, J. concurring); and Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967). Rarely will the prejudicial value render inadmissible any evidence that is context of the offense. Appellant and his companions were armed with two semi-automatic handguns and one revolver. They fired approximately 28 bullets at two unarmed persons who were killed and at several innocent bystanders. Part of the explanation for their actions was that their adversaries were armed. The reasonableness of their belief and understanding of the situation was potentially colored by their intoxication. The evidence was relevant to the issue of self-defense. The trial court properly admitted the evidence and the probative value was not substantially outweighed by the prejudicial effect. Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991). Moreover, if the trial court erred in admitting the challenged evidence, we hold that the error did not affect appellant=s substantial rights. Any error was harmless under Rule 44.2(b); King v. State, supra. Appellant=s third point of error is overruled. Appellant contends in his fourth point that the prosecutor in his closing argument at the punishment phase of the trial improperly commented on appellant=s failure to testify. Appellant relies upon the following remarks by the prosecutor: And you have to do this, you have to assess what you think is the correct punishment, not based on any fancy words lawyers throw at you, but based on all the evidence you have heard in this trial. You have to look at what was done out there, and what little information you have about the person who committed the act. The punishment has to fit the individual. What I=m basically telling you is: What have you heard from that witness stand? Have you heard any evidence from any source that shows you this individual can be rehabilitated? That=s what probation is, to rehabilitate, to work with that person. Have you heard any evidence at all? The court overruled appellant=s objection. The court in Wolfe v. State, 917 S.W.2d 270, 279 (Tex.Cr.App.1996), said: A prosecutor cannot comment on the lack of evidence presented where that comment necessarily refers to the defendant=s failure to testify, but language that can reasonably be construed as a failure to present evidence other than the defendant=s testimony is not a comment on the failure to testify. Staley [v. State], 877 S.W.2d 895 [(Tex.Cr.App.1994)]. That such language might be construed as an implied or indirect allusion to the defendant=s failure to testify is not enough to warrant exclusion. The only witness called during the punishment phase of the trial was appellant=s aunt. She testified that appellant had lived with her most of his life, that he was enrolled in school at the time of the murder, and that he had never before been convicted of a felony. The aunt did not testify as to appellant=s good behavior or his ability to reform his behavior. Defense counsel argued to the jury that appellant should be placed on probation. Appellant=s aunt could have testified that appellant could be rehabilitated. She could have presented evidence that appellant was capable of rehabilitation. The prosecutor=s statement was not an improper comment on appellant=s failure to testify. The fourth point of error is overruled. In his fifth point of error, appellant maintains that the evidence is factually insufficient to support the verdict. He argues in the sixth point of error that the evidence is legally insufficient to support the verdict. In order to determine if the evidence is legally sufficient, this court must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In determining whether the evidence is factually sufficient, this court must review all of the evidence to determine if the verdict is so against the great weight of the evidence as to be clearly wrong or unjust. Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). Two witnesses identified appellant as the person they saw shoot and kill the victim. The evidence is both legally and factually sufficient to support the verdict. Appellant=s Points of Error Nos. 5 and 6 are overruled. The judgment of the trial court is affirmed. AUSTIN McCLOUD SENIOR JUSTICE November 15, 2001 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Wright, J., and McCall, J., and McCloud, S.J.[1] [1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.