Lorenzo Dancy v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued December 13, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00128-CR

____________

LORENZO DESHUN DANCY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1096505

MEMORANDUM OPINION

A jury found appellant, Lorenzo Deshun Dancy, guilty of the offense of aggravated assault with a deadly weapon on a family member (1) and assessed his punishment at confinement for five years. In his sole point of error, appellant contends that the trial court erred in excluding evidence that his deceased mother "had a gun in the house."

We affirm.

Factual Background

Ernest Hankston, the complainant, testified that after his mother had died, he and appellant, his son, disputed who inherited her house. After both men had lived at the house for two months, on August 7, 2006, at around 7:00 a.m., appellant "loudly" knocked on the complainant's locked bedroom door, asking to borrow his car. The complainant, who had been asleep with his girlfriend, Priscilla Richard, replied, "No." Approximately fifteen minutes later, when appellant unsuccessfully asked the complainant for a ride to the bank, appellant kicked in the complainant's door and pointed a .357 Magnum revolver at the complainant and Richard. (2) Appellant told the complainant to get up and leave "his goddamn house" or he would blow both of their "brains out." He exclaimed that he should have "killed [the complainant's] ass a long time ago." After the complainant finally gave appellant his car keys, appellant pulled the revolver's trigger, but the revolver did not fire. The complainant promptly left his house, went to a neighbor's home, and called for emergency assistance.

Houston Police Officer W. Reiser testified that when he arrived at the scene, he saw that the complainant's bedroom door had been kicked in and the doorframe had been broken. The complainant led Reiser to appellant's bedroom, where Reiser recovered the revolver used to threaten the complainant in appellant's closet. Appellant testified that when he unlocked the complainant's bedroom door with his finger, the complainant immediately charged him and shoved him. Appellant only shoved him back, and he did not use a gun during their fight. Relevancy

In his sole point of error, appellant argues that the trial court erred in sustaining the State's "relevancy" objection when his trial counsel asked the complainant if his deceased mother had "had a gun in the house" because the "origin" of the gun "was most certainly 'of consequence' in this trial." He asserts that the trial court's error improperly limited his right to cross-examination in violation of the United States and Texas Constitutions. (3)

Appellant complains of the following exchange between his counsel and the complainant:

[Appellant's counsel]: Okay. And prior to your mother's death, did you go and search the house for any other items that perhaps belonged to your mother that you were going to get rid of?

[The complainant]: No, ma'am. I haven't gotten rid of anything.

[Appellant's counsel]: Okay. Well, isn't it true that your own mother had a gun in that house?

[The State]: Objection to relevance.

[The court]: Sustained.

A trial court has discretion to decide the admissibility of evidence and, absent an abuse of discretion, its rulings will not be overturned. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). To determine whether a trial court has abused its discretion, we consider "whether the [trial] court acted without reference to guiding rules and principles; that is, whether the court acted arbitrarily or unreasonably." Fox v. State, 115 S.W.3d 550, 558 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd).

Evidence which is not relevant is inadmissible. Tex. R. Evid. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401.

Appellant asserts that the State's evidence that he had exclusive access to his bedroom bolstered "the complainant's accusation that [a]ppellant had threatened the complainant" with the revolver. He contends that his trial counsel's question raised the possibility that the revolver was a "family gun," accessible to both the complainant and appellant, weakening the complainant's assertion that appellant threatened him with the revolver.

However, whether the complainant's mother had in fact owned a gun has no bearing on who in fact had access to the gun in question. Moreover, it does not logically follow that if the complainant's mother "had a gun in the house" that it is somehow less likely that appellant assaulted the complainant with a gun. In deciding whether evidence is relevant, the pertinent question to ask is "'would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit.'" Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990) (quoting United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976)). Here, the proffered evidence would not have been helpful in making such a determination.

Accordingly, we hold that the trial court did not abuse its discretion in sustaining the State's objection to the question of appellant's trial counsel to the complainant as to whether his mother had previously "had a gun in the house." We further hold that the trial court did not improperly limit appellant's cross-examination of the complainant in violation of the United States Constitution.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. 22.02(a)(2) (Vernon Supp. 2007).

2. Priscilla Richard testified as well that appellant kicked down the door and entered the room with a revolver.

3. See U.S. Const. amend. VI; Tex. Const. art. I, 10. Because appellant has not argued that the protections in the Texas Constitution exceed or differ from the protections of the United States Constitution, we only address appellant's arguments under the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).