John Joseph Baker, Sr. v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-97-029-CR

JOHN JOSEPH BAKER, SR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 31143

O P I N I O N

Appellant Baker appeals from his conviction for aggravated assault with a deadly weapon, two counts, for which he was sentenced to 15 years in the Texas Department of Criminal Justice-Institutional Division on count one, and 10 years probated on count two.

On March 9, 1996, Appellant s son J.J. was visiting his mother, Paula Baker, at her residence in Cleburne. Appellant and Paula had been separated for 13 years and had agreed that the son would live with Appellant and that the two daughters, Amanda and Angie, would live with their mother, Paula.

Paula had lived with Logan Sizemore for 13 years although she and Appellant were not divorced. On March 9, 1996, Paula, her son, and Sizemore were eating supper. While they were eating, Appellant drove into Paula s driveway, got out of his pickup and knocked on Paula s back door. J.J. answered the door. Appellant asked to speak to Amanda and Angie. J.J. told Appellant they were not there. Appellant then asked to speak to Sizemore. Sizemore went out the back door to where Appellant was standing. Appellant angrily accused Sizemore of harassing him, using very vile language. Sizemore denied the allegations and advised Appellant to depart. Appellant cursed Sizemore and warned him not to turn his back. Paula, who had been watching and listening, came out the back door and told Appellant to leave. At that moment Appellant reached behind his back and pulled out a pistol. Seeing this, Sizemore grabbed Paula by her shoulders and pushed her toward the back door of the house. At the point where Paula reached the back door, Appellant fired a single shot. The bullet entered the back of Sizemore s arm, exited his arm and entered Paula s left side where it fragmented through her left lung and exited through her left breast. Sizemore called 9-1-1 which dispatched the police and medical personnel. Officer Goetz arrived, handcuffed and patted down Appellant. Appellant exclaimed to Officer Goetz he did not mean to shoot Paula, only to scare them.

Appellant was indicted in count one for aggravated assault with a deadly weapon on Logan Sizemore and, in count two for assault with a deadly weapon on Paula Baker.

A jury convicted Appellant on both counts and assessed his punishment for count one at 15 years in prison and assessed his punishment for count two at 10 years, probated.

Appellant appeals on one point of error: The trial court erred when it refused to admit evidence regarding Appellant s state of mind at the time of the offense.

The State s indictment alleged that [Appellant] did intentionally, knowingly, or recklessly cause bodily injury to [the victim] by shooting [the victim] and the [Appellant] did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault.

Appellant s defense at trial was that the shooting was an accident and that Appellant did not have the culpable mental state required to justify a finding of guilty.

Appellant and Paula had separated about 1982. Paula had moved in with Sizemore. Appellant and Paula had never secured a divorce. At the guilt-innocence phase Sizemore testified Appellant sought to introduce evidence that Appellant and Sizemore used to be drinking buddies during the early 1980's and that there was a confrontation in 1983 or 1984 involving them which resulted in gunfire. Appellant further tried to establish that during that same period Sizemore and Paula removed three children from the residence of Nancy Werdig (paramour of Appellant and former lover of Sizemore) in violation of a court order.

Appellant argued the above evidence was to establish that Sizemore was a dangerous person and that Appellant brought his weapon with him to Paula s house for protection from this dangerous person.

The trial court ruled that proferred evidence of the prior conflict between Appellant and Sizemore, and the evidence regarding removal of the children, too remote and lacked the necessary nexus to the March 9, 1996, shooting, to be admissible. Appellant asserts the excluded evidence was relevant to his state of mind on March 9, 1996.

A trial judge has broad discretion in admitting or excluding evidence. Only when a trial court has abused its discretion should an appellate court conclude that the ruling was erroneous. Fletcher v. State, 852 S.W.2d 271, 276 (Tex. App. Dallas 1993, pet ref d); Montgomery v. State, 810 S.W.2d 376, 390-91 (Tex. Crim. App. 1991).

The trial court did not abuse its discretion in ruling that events occurring in 1983 or 1984, 12 or 13 years prior to the offense charged, were not admissible. See Tex. R. Crim. Evid. 609. There is no showing in the record of an ongoing or running conflict between Appellant and Sizemore or evidence of bad acts by Sizemore during the 12 or 13-year intervening period. The events 12 or 13 years previous were too remote to be relevant.

Appellant further argues the trial court abused its discretion in ruling that evidence of what medicine Appellant was taking at the time he was booked into jail after the offense, and that post-arrest medical treatment he received, was not admissible. Appellant argues this evidence was relevant to Appellant s state of mind at the time of the shooting. We think the evidence was not relevant. The trial court did not abuse its discretion in excluding same.

Finally, Appellant complains the trial court abused its discretion when it excluded evidence that relatives of Appellant were denied visitation to Appellant s and Paula s two girls after August 1996. There is no way this evidence could have affected Appellant s state of mind on March 9, 1996, the time of the offense. The trial court did not err in excluding this evidence.

In any event we hold beyond a reasonable doubt that the court s exclusions made no contribution to Appellant s conviction or sentence. Tex. R. crim. Evid. 81(b)(2).

The record is clear that Appellant arrived at Paula Baker s home on March 9, 1996, uninvited and unprovoked, with a loaded weapon; that Appellant initiated a tirade against Sizemore; that Appellant pulled out a pistol and shot two unarmed people who were trying to retreat. The evidence of Appellant s guilt was overwhelming.

Appellant s point is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 17, 1997

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