CHARLES KOREY THOMAS, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion issued August 26, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00266-CR
............................
CHARLES KOREY THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-67174-NS
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OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Francis
        In this appeal from a jury conviction for theft from a person, we must decide whether the trial court reversibly erred in excluding evidence that the complaining witness was a prostitute. For the reasons set out below, we conclude the evidence was admissible and its exclusion substantially harmed appellant. We therefore reverse the trial court's judgment and remand for further proceedings.
        Charles Korey Thomas was charged with aggravated robbery after Telena Pedford accused him of taking $30 from her at knifepoint. After hearing the evidence, a jury acquitted him of the charge and found him guilty of the lesser-included offense of theft from a person. The trial court assessed punishment at twenty-two months in state jail.         At trial, Pedford represented she was an out-of-work accountant. On the day of the incident, Pedford testified she had borrowed $30 from a friend to buy groceries. As she was walking on Whitehurst Drive to a bus stop, holding a $20 bill and a $10 bill in her hand, she noticed appellant and two other men walking on the other side of the street. As she approached a bridge, Pedford said appellant jogged up, grabbed her arm, put a knife to her neck, and demanded her money.
        Pedford used the cell phone of an unknown woman to call the police and then, with the help of a second unknown woman who was driving a car, followed appellant to a nearby apartment complex. She gave the police a description of her assailant, but did not give a name.
        Pedford testified she did not personally know appellant, but recognized him as the boyfriend of one of her friends, Carmen Richardson. Pedford said she had greeted appellant in passing but had not had “extensive dealings with him.” She denied the incident was “some sort of drug deal” and denied owing appellant money or buying drugs from him in the past.
        On cross-examination, Pedford was asked if she knew a man named James Michael Tucker, and Pedford said she did not. When asked if she knew Michael Tucker, Pedford said she knew “Mike” but did not know his last name. Pedford said she knew “Mike” only because he had once given her a ride when it was raining. Finally, Pedford testified that on the day of the robbery, Mike “was nowhere” at the scene and did not know what happened.
        Dallas police officer Elena Perez testified that when she arrived at the scene, Pedford got into her squad car and directed her to an apartment complex. At the complex, they saw appellant walk around the corner of a building, and Pedford told her “[t]hat's him.” Perez told appellant to “come here,” but appellant began walking up the stairs. When Perez took out her Taser and pointed it at appellant, he stopped. Perez searched appellant and found $30. She did not find a weapon.
        On cross-examination, the defense highlighted various inconsistencies between Pedford's testimony at trial and statements in the police reports. Additionally, the defense focused on the fact that the police talked to a man at the scene who Pedford told them had been with appellant and witnessed the incident. The police, however, did not take a statement from the witness because he was “uncooperative.” After Perez and the supervising detective testified, the State rested.
        Outside the presence of the jury, the defense offered the testimony of Mike Tucker, who was serving time in state jail for an unrelated drug offense. In contrast to Pedford's testimony, Tucker said he had known Pedford for a year and a half, saw her two to three times a week, and they were “[g]ood friends.” When asked to describe his relationship with Pedford, he said they “had a couple of hustles” they would do and “usually, it was because I had a van.” Tucker's role was as “kind of a utility guy” and Pedford was a “prostitute.” Tucker said he would watch after Pedford and “facilitate her travel sometimes.” After Pedford made money “turning tricks,” Tucker said they would use the money to buy drugs.
        A few weeks before the incident, Pedford stopped Tucker in his van; appellant was a passenger. Tucker had not seen Pedford in a while and, when she got in the van, asked for a “favor . . . give me some dope.” Tucker said he was surprised when appellant gave Pedford drugs because “he don't ever give nobody nothing[.]” According to Tucker, Pedford “said she'd turn a trick or two in a few minutes and pay him back.” Later, Pedford told Tucker she was not going to repay appellant and complained that “she didn't like him hammering on her for the money. She wanted him to shut up.” Tucker advised Pedford to repay the money and even offered to repay appellant himself because “he was my friend and she was my friend and I didn't want to mess it up.” Tucker said appellant declined the offer, giving “a reason why he had to collect it, but I can't remember what it was.”
        On the day in question, Tucker said he was with Pedford, watching out for her from twenty to thirty feet away, as she stood under the overpass on Whitehurst looking for a trick. Tucker explained that he was standing back, otherwise she would not be able to get a trick. Tucker said he saw appellant walk across the street and talk to Pedford. Tucker said the two were not “saying anything loud or nothing. . . they were just talking.” Tucker testified: “I saw [Pedford] hand him some money. I saw them talking and he - and he kinda shuffled, you know, and she handed him some money.” Tucker said appellant did not pull a knife on Pedford or hold any object to her neck. Tucker said appellant did not touch Pedford, explaining that “[n]obody touches [Pedford] unless she wants them to - believe me.”
        Defense counsel argued that evidence “regarding the activities under the bridge, what [Pedford] was doing under the bridge and why [Tucker] was down there is . . . transactional context evidence” that would allow the jury to “understand [Tucker's] testimony outside of a vacuum.” He argued the evidence directly contradicted Pedford's version of events and went “to the heart” of the defense. Additionally, the defense argued that without the evidence, appellant was denied due process and an opportunity to confront Pedford fairly. Finally, defense counsel argued that, without the evidence, Pedford had been presented in a “false light” and was being allowed to “give her version of the facts, not subject to rebuttal or contradiction.”
        The trial court ruled that evidence of prostitution was irrelevant. Outside the jury's presence, the trial court admonished Tucker not to go into testimony that Pedford was a prostitute:
 
[TUCKER]: You don't want the whole truth; you want - -
 
 
        
 
[TRIAL COURT]: I want half of it.
 
 
 
[TUCKER]: Okay. I hear you.
 
 
 
[TRIAL COURT]: I don't want you to tell half-lies, though. You understand the difference?
 
 
 
[TUCKER]: No.
 
        The trial court instructed Tucker to say nothing concerning Pedford's “whoring or turning tricks or that -- that -- that she's a prostitute at all” or how Pedford was going to get the money to repay appellant. The court ruled that Tucker could testify that he saw Pedford standing under the bridge immediately before appellant approached Pedford, but he could not, in effect, say why he was standing around the bridge watching Pedford. Additionally, defense witness Richardson, who told the court she was inside Tucker's van when appellant fronted Pedford the drugs and knew how Pedford was going to repay the debt, was similarly instructed not to go into any testimony regarding prostitution.
        In accordance with the trial court's admonishments, when Richardson and Tucker testified, neither made any mention that Pedford was a prostitute. Both testified they were friends with appellant and Pedford and that Pedford owed appellant $30 for crack cocaine appellant had “fronted” her three weeks earlier. Tucker testified Pedford promised to repay appellant that same day, but then reneged on the promise and told Tucker she did not plan on paying appellant back. Tucker told jurors he was standing about twenty feet away when he saw appellant approach Pedford and saw Pedford hand appellant money. The two talked for a “few minutes.” Tucker testified he could not hear what was said, but he did not see appellant touch Pedford or pull out a knife. Tucker said if he had seen Pedford in danger, he would have intervened. After appellant walked off, Tucker said Pedford “came by and said something about the police and she was mumbling something[.]” Tucker told Pedford he was going home.
        Before resting its case, the defense pleaded once more for the trial court to change its ruling. Specifically, defense counsel argued:
 
        . . . I just want to resubmit that evidence about why -- what [Pedford] was doing down by the bridge and what [Tucker] was doing, because you've heard his testimony now outside the jury's presence and in the jury's presence.
        And quite frankly, why would he be there watching her and how -- why he would be observant to whether or not she was in danger doesn't make any sense without the prostitution, and there's a big question that's not being fairly presented.
 
 
 
        And we would reurge that we think that we should be entitled to res gestae to explain why he's paying attention to [Pedford] and why he would be concerned about there being a knife.
 
 
 
        It doesn't -- the way it sounds now is he just happens to be there to stand around and gawk, and it's got no relation to it. That's not what happened and it's not -- it's not fairly presenting the context of the case to the jury.
 
 
 
Again, the trial court ruled the evidence irrelevant.
 
        In two issues, appellant argues the trial court abused its discretion in prohibiting him from establishing on cross-examination of Pedford and through third-party witnesses that Pedford was acting as a prostitute at all times pertinent to the incident. In particular, he contends, among other things, that the evidence was “same transaction contextual evidence” of the offense that was necessary to his defense. We agree.
        We review rulings on the admissibility of evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will conclude a trial court abused its discretion if its ruling lies “outside the zone of reasonable disagreement.” Id.
        “Same transaction contextual evidence,” or res gestae, refers to those events and circumstances that are intertwined, inseparable parts of an event that, if viewed in isolation, would make no sense at all. Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007). This evidence is admitted to “show the context in which the criminal act occurred . . . under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence.” Id. at n.36 (citing Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972)). Necessity is a key element when determining whether same transaction contextual evidence is admissible. Brown v. State, 243 S.W.3d 141, 151 (Tex. App.-Eastland 2007, pet. ref'd). In other words, only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence should that evidence be admitted. See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
        After reviewing the record and considering the evidence excluded and its necessity to a fair portrayal of the defense theory, we conclude the trial court abused its discretion. Without evidence that Pedford was an alleged prostitute, the defense was not able to adequately explain its theory of the case, which depended on full disclosure of the nature of the relationship between Pedford and Tucker, why appellant believed he would be repaid the same day if he fronted drugs to Pedford, why Pedford might falsely accuse appellant of robbing her, and, most importantly, why the only eyewitness at trial, Tucker, was conveniently standing only feet away when Pedford said appellant robbed her and why Tucker was so observant. The facts leading up to and including the incident were so interwoven with the issue of prostitution that, without this evidence, the defense was forced to present a case that was, at best, confusing. At one point, even the trial court acknowledged the challenge faced by the defense in having to dance around the issue: “There's a giant elephant in the room.”
        In reaching this conclusion, we reject the State's argument the evidence was irrelevant and “would only have served to attempt to connect [Pedford] to prostitution to show her bad character.” Relevant evidence is defined as “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. Here, the evidence tends to make Pedford's claims that she was robbed “less probable” and supports Tucker's eyewitness testimony that Pedford voluntarily gave appellant the $30 when he approached her and asked for it.
        Generally, the exclusion of evidence is nonconstitutional error requiring reversal only if we determine the appellant's substantial rights were affected. See Tex. R. App. P. 44.2(b); Walters, 247 S.W.3d at 218. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In other words, a criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, “has fair assurance that the error did not influence the jury, or had but a slight effect.” Id.
        In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. The reviewing court might also consider the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments and even voir dire, if material to appellant's claim. Id. When the claimed error is the exclusion of a relevant piece of evidence, as is the case here, conducting a meaningful harm analysis would necessarily require consideration of all evidence which was admitted at trial. Id.
        The conviction in this case rested upon Pedford's testimony that appellant took her money. Before reaching that conclusion, the jury was presented with two different versions of what occurred that day. The only fact witness called by the State was Pedford. What the jury heard was that she was an out-of-work accountant who was robbed, at knifepoint, by a relative stranger. Although she admitted having done drugs in the past, she denied having any relationship with appellant and denied borrowing drugs from him only a few weeks before accusing him of robbing her. Just as importantly, she denied any relationship with appellant's key witness, Tucker.
        In stark contrast, the defense theory of the case was that appellant fronted Pedford drugs because he knew she could quickly pay him back by “turning a trick,” that Pedford did not repay appellant and was tired of him “hammering” her for the money, and that she was angry enough that she reported him to the police. This defense relied upon the testimony of Tucker, who said he witnessed the interaction between Pedford and appellant that day. Critical to Tucker's credibility was the jury's understanding of why he happened to be standing near the bridge watching Pedford and why he was so observant of her. Outside the jury's presence, Tucker essentially testified he was Pedford's bodyguard and would have intervened to protect her, and his business interest in her, if she had been in danger. Because the trial court excluded the issue of prostitution, the jury could not properly evaluate Tucker's story. Rather, the jury only knew that Tucker was there for some unknown reason.
        The jury's ability to properly evaluate Tucker's story becomes even more important when one considers the jury acquitted appellant of aggravated robbery and the lesser-included offense of robbery. Had the jury known of Tucker's role as “utility man” or bodyguard for Pedford, it may have placed more importance on his testimony that he would have intervened if he believed she was in danger and it may have believed that Pedford voluntarily handed over the money, as Tucker's testimony suggested. In other words, the jury may well have discredited Pedford's testimony entirely, not because she was a prostitute, but because it may have believed she was not truthful of the full circumstances of the incident.
        We acknowledge that the trial court allowed the defense to present evidence that appellant fronted Pedford drugs, that Pedford was supposed to repay him, and that Pedford did not. But the “giant elephant” that went unmentioned to jurors was the allegation that Pedford was a prostitute. In fact, during closing statements, the State argued: “What does [Pedford] gain by sitting here and looking at the twelve of you and lying about an offense that occurred against this man that she met in passing? Why would she do that?” Had the trial court not excluded evidence of prostitution, the defense could have argued its complete theory to the jury. As it was, the jury heard a watered-down version of the facts with key points left unexplained. Under these circumstances, we conclude the exclusion of the evidence had a substantial and injurious effect on the jury's verdict. Accordingly, we sustain the second issue. Our disposition of this issue makes it unnecessary to address the first issue. See Tex. R. App. P. 47.1.
        We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Richter, J. dissenting.
 
 
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Tex. R. App. P. 47
070266F.U05