Larry Robert Baker v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-167-CR

LARRY ROBERT BAKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-321-C

O P I N I O N

A jury convicted Larry Baker of murdering Joseph "Dyke" Moore and assessed his punishment at ninety-nine years in prison. Baker admitted the shooting but claimed self-defense. Baker complains on appeal about the denial of his requested instruction on threats, prosecutorial misconduct, and an extraneous offense. We will affirm.

REQUESTED INSTRUCTION

Baker had threatened to kill Dyke Moore on several occasions, including the night of the murder, because of allegations that Moore had tried to rape Baker's live-in girlfriend, Sheryl Phillips. According to Baker, Kenneth Rhymes told him just prior to the shooting that Moore was waiting with a shotgun at Baker's house trailer and was going to kill him. Baker, who said he had had a disagreement with Dyke Moore's brother, "Puff," stated that he was "scared to death" and "terrified" that Dyke and Puff would be lying in wait for him when he returned home. Shortly after Rhymes told Baker of Moore's threat, Baker and Rhymes left the lounge, where they had been drinking, in Rhymes' pickup and drove to Baker's house trailer. As they arrived at the trailer park, Rhymes gave Baker a .22 bolt-action rifle he kept behind the seat of his pickup. An eye-witness said that Baker shot Dyke Moore in the chest without warning and without any provocation on Moore's part. Baker claimed, however, that he shot only after Moore ignored a plea to "Stop" and rushed toward him.

Baker asked the court to include the following instruction in the charge on guilt-innocence:

You are instructed that where a defendant accused of murder seeks to justify himself on the grounds of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording justification for the offense unless it be shown that at the time of the killing, the person killed, by some act then done, manifested an intention to execute the threats so made, and if a reasonable person in defendant's situation would not have retreated.

Now if you find from the evidence that prior to the homicide in question the deceased made a threat to take the life of the defendant or to inflict serious bodily injury upon him, or whether you believe the deceased to have made such threat or not, if you believe from the evidence that information was given to the defendant that the deceased had made such threat, and that the defendant believed such information so reported to him as to such threat, and if you further believe from the evidence that at the time of the homicide the deceased, by any acts then done, or by words coupled with such acts, reasonably created within the mind of defendant, as viewed by him from his standpoint at the time, a reasonable belief that the said deceased was in the act of executing the threat so made or so reported to him, whether such threat had in fact been made or not, or that the deceased was about to carry out said threat, whether such threat had in fact been made or not, or if you have a reasonable doubt thereof, and if you further believe that a reasonable person in defendant's situation would not have retreated, then the defendant would be entitled to act upon the information received by him whether the alleged threats in question had actually been made or not and he would be justified in law in shooting the deceased, and if you so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."

The court refused to give the instruction, which was taken verbatim from McClung's. See P. McClung, Jury Charges For Texas Criminal Practice 315 (rev. 1993).

Baker's first complaint is that, by refusing the instruction, the court unduly restricted his right of self-defense to Dyke Moore's words, acts, and conduct at the time of the shooting, when the victim's prior threat may have produced a fear of death in Baker's mind. He contends he was harmed because his theory of self-defense was predicated on his reaction to and apprehension of danger resulting from Moore's threat communicated to him by Kenneth Rhymes. The State asserts, however, that the charge given the jury encompassed the substance of the requested instruction and, for that reason, there is no error.

If there is evidence that the victim in a murder case verbally threatened the defendant, and that the defendant may have acted in self-defense, the court should not restrict the charge on self-defense solely to the acts of the victim at the time of the offense; verbal threats should be included as well. Ellis v. State, 811 S.W.2d 99, 101 (Tex. Crim. App. 1991). Following a general abstract instruction on the law of self-defense, which included definitions of "deadly force" and "reasonable belief," the court included this additional instruction:

You are further instructed that in determining the existence of real or apparent danger, it is your duty to consider all of the facts and circumstances in evidence in the case before you and consider the words, acts, and conduct, if any, of Joseph Moore at the time of and prior to the time of the alleged killing, if any, and in considering such circumstances, you should place yourselves in defendant's position at that time and view them from his standpoint alone.

(Emphasis added). The instruction quoted above immediately preceded the following paragraph applying the law of self-defense to the facts:

Now, if you find from the evidence . . . that . . . the defendant . . . did then and there shoot . . . Joseph Moore . . . , but you further find from the evidence that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Joseph Moore it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Joseph Moore, . . . then you should acquit the defendant of all charges on the grounds of self defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self defense on the occasion . . . , then you should give the benefit of that doubt to defendant and find him not guilty.

(Emphasis added).

Clearly, the charge did not restrict the jury to considering only the acts of Dyke Moore at the time of the shooting, but expressly required consideration of "the words, acts, and conduct, if any, of Joseph Moore . . . prior to the time of the alleged killing." Thus, it did not suffer from the defect in Ellis. See id. at 100. When the charge given is substantially the same as or adequately covers the substance of the charge refused, there is no error. Valentine v. State, 587 S.W.2d 399, 402 (Tex. Crim. App. [Panel Op.] 1979). Because the charge did not restrict the jury's consideration only to the acts of Dyke Moore at the time of the shooting, and because the substance of the refused instruction is substantially contained in the charge, the court did not err when it refused the requested instruction. Point one is overruled.

PROSECUTORIAL MISCONDUCT

Kenneth Rhymes, who told Baker of Dyke Moore's threat and furnished the rifle used in the killing, was also arrested with Baker for the murder. However, at the time of Baker's trial, Rhymes had yet to be indicted for the offense. Baker issued a subpoena for Rhymes, which the court quashed on Rhymes' motion after he claimed his constitutional privilege against self-incrimination. When the prosecution refused to grant Rhymes immunity, Baker asked the court to order the State to do so, but the court refused. During his trial, Baker testified that Rhymes told him just before the shooting that Moore was at his (Baker's) house trailer, waiting for him with a shotgun, and that he was going to kill him (Baker). When the prosecutor cross-examined Baker, the following occurred:

Q All right. Now, you say . . . Kenneth [Rhymes] told you that Dyke [Moore] was at Mark's house; is that right?

A No. Kenneth told me he was at my house.

Q Okay. At your house. And he told you what else?

A He told me he was at my house, and he had a gun and he wanted to talk to me. At first, yes, sir, that's what he said at first. Then when he got to talking, he said [Moore] was going to kill me, which I. . .

Q Can you explain why Kenneth, in his statements to the police, never mentions that he said [Moore] had a gun?

The defense immediately moved for a mistrial, arguing that the prosecutor engaged in prosecutorial misconduct by asking Baker about Rhymes' statements to police, knowing all along that they were inadmissible unless Rhymes testified. Baker pointed out to the court that the defense could not call Rhymes as a witness either to rebut or explain his purported statements to police because Rhymes had claimed his privilege against self-incrimination and the State had refused to grant him immunity. The court refused to grant a mistrial, but did give the jury an instruction to disregard.

Essentially, Baker's second point is that the court erred when it refused to grant a mistrial based on prosecutorial misconduct and, because of such refusal, he was denied a fair trial. He constructs prosecutorial misconduct out of the following facts and sequence of events: (1) his theory of self-defense hinged on his increased apprehension of danger and fearful state of mind based on Dyke Moore's threat, which was relayed by Rhymes, that Moore was waiting with a shotgun to kill him; (2) the defense wanted to call Rhymes as a witness but was prevented from doing so by the privilege against self-incrimination and the refusal of the State to grant him immunity; (3) knowing that Rhymes could not be called as a witness, the prosecutor intentionally introduced before the jury Rhymes' purported statements to police (i.e., Rhymes never told police that Moore had a weapon) to discredit his self-defense theory; and (4) the State exacerbated the harm by alluding to Rhymes' role in the murder.

There is no general test for determining whether prosecutorial misconduct has occurred in any particular situation or trial, so each claim must be decided on a case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988). Our inquiry will be two-fold: (1) were the acts complained of prosecutorial misconduct?; (2) if so, did the misconduct result in reversible error? See Stoker v. State, 788 S.W.2d 1, 14 (Tex. Crim. App. 1989). Three factors, although not exhaustive or to be mandatorily applied, will be considered in assessing whether any misconduct resulted in reversible error: (1) whether the defendant objected to the act; (2) whether the prosecutor deliberately violated a court order; and (3) whether the misconduct, if present, was so blatant as to border on contumacy. See id.

Rhymes' purported statements to police were inadmissible hearsay and could not be used to impeach Baker's claim that Rhymes told him Moore had a shotgun. See Iness v. State, 606 S.W.2d 306, 310 (Tex. Crim. App. 1980); Callaway v. State, 818 S.W.2d 816, 830 (Tex. App. Amarillo 1991, pet. ref'd). Thus, questioning Baker about Rhymes' statements was misconduct because the prosecutor knew that Rhymes had refused to testify and that the State had refused to grant him immunity. Moreover, the defense could not call Rhymes as a witness to refute or explain the statements attributed to him in the prosecutor's question.

Having found prosecutorial misconduct, we now examine the question whether it resulted in reversible error. Although the first of the three factors used to assess reversible error from prosecutorial misconduct is present i.e., Baker timely objected the remaining two are absent. See Stoker, 788 S.W.2d at 14. The prosecutor did not deliberately violate a court order when he asked the improper question; nor was the misconduct so blatant that it bordered on contempt. See id. After the court denied the motion for a mistrial and gave a curative instruction, the prosecutor never again alluded to Rhymes' inadmissible statements to police.

Baker argues, however, that the prosecutor exacerbated the harm flowing from the improper reference to Rhymes' police statements by making the following argument on guilt-innocence:

So, then we come to the date of the murder. What's the testimony about that? We know [Baker] had been drinking and that, sometime later in the evening, [Baker] ends up at the Frontier Lounge. [Baker] says Sheryl Phillips comes in [the lounge] and she tells [Baker], Joseph Moore is back at the trailer park. And then Kenneth Rhymes just says he's going home, but he conveniently ends up back at the trailer park, where he doesn't live. Like he [i.e., Rhymes] conveniently showed up to give [Baker] a ride after [Baker] killed Joseph Moore, [Rhymes] conveniently ends up back at the trailer park.

Does it make more sense to think that [Rhymes] just happened to go [to the trailer park] when he told everybody [at the lounge] he was going home, or that he had been sent there by Larry Baker--.

(Emphasis added). This argument was proper as a legitimate summation of the evidence and a reasonable deduction from the facts. See Hughes v. State, 878 S.W.2d 142, 157-58 (Tex. Crim. App. 1992) (on rehearing).

Although the prosecutor's improper question regarding Rhymes' purported statements to police constituted misconduct, such did not rise to the level of reversible error. Ordinarily, the harmful effect from an improper question is removed by an instruction to disregard. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990). We conclude that the court's curative instruction removed whatever harm that resulted from the improper question and, because two of the three factors used to assay reversible error from prosecutorial misconduct are missing, that the misconduct did not result in reversible error. See Stoker, 788 S.W.2d at 14. Point two is overruled.

STRIKING "OVER COUNSEL'S SHOULDER"

During the State's argument on guilt-innocence, the prosecutor make the following comments: "Third thing that I want to point out is, as I am recalling the evidence for you, we heard a lot of testimony from counsel table. That is not evidence in this case. What you heard in questions or stated --." At this point, defense counsel objected that the prosecutor was striking at his client "over the shoulder" of his attorney, but the objection was overruled. After which the prosecutor continued: "The evidence in this case came from the words of the witnesses, the mouths of the witnesses . . . ." Baker's third point is that the court erred when it overruled the objection.

Striking at the defendant by attributing bad faith or improper conduct to defense counsel is improper and can result in reversible error. Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). The standard of review is contained in Rule 81(b)(2): whether, in light of the entire record, there is a reasonable possibility that the argument might have contributed to the defendant's conviction or punishment. Id.; Tex. R. App. P. 81(b)(2).

The prosecutor's comment, which was made in the context of explaining to the jury that evidence comes from witnesses on the witness stand, did not explicitly attribute bad faith, insincerity or improper conduct to defense counsel. Considering its context, one could fairly characterize it as being equally applicable to both sides of the case, i.e., whatever facts were suggested in questions from the prosecution or defense counsel are not evidence. Assuming, however, that one could interpret the passing comment as suggesting that only defense counsel had offered "testimony from the counsel table," such an allusion was so fleeting, veiled and innocuous as to be harmless. See id. When considered in light of the record as a whole, there is no reasonable possibility that the comment contributed either to Baker's conviction or sentence. See Orona, 791 S.W.2d at 128. Point three is overruled.

EXTRANEOUS OFFENSE

Baker's final point is that the court improperly overruled an objection to an extraneous offense. During the defense's cross-examination of Sheryl Phillips, the State's first witness, the following occurred:

Q Now, you had known Larry Baker quite a while before April 9th [the date of the murder], hadn't you?

A Yes.

Q And Larry never had been violent, that you had ever seen, had he?

A No.

Q Never hit you, did he?

A No.

Q Never hit anybody that you knew of?

A No.

Q And you had been with him when he was drinking, when he was sober, when he was drinking a little, drinking a lot, all conditions. Larry Baker had never threatened anybody or been violent toward you or anyone else that you knew of except for the man known as Dyke, who is named Joseph Moore, is that correct?

A Yes.

On redirect examination the prosecutor asked Phillips:

Q Now, let's go to the incident at the Frontier Lounge there. Prior to Mr. Baker leaving, you say he stayed there for a while?

A Yes.

Q I believe you said that was five to 10 minutes?

A Yes.

Q During that period of time, was there a fight that broke out, a scuffle?

A We were standing in the front of the bar, at the end of it, and there was another guy sitting at the other end, and Kenneth [Rhymes] told Larry --

. . .

A A scuffle broke out, yes.

Q And how long did that take?

A It didn't last but just a second or two.

Q All right. And who was involved in that?

[At this point defense counsel objected that the State was inquiring about an extraneous offense, an objection the court overruled].

A Larry [Baker] and another guy. I don't who he was.

Q In fact, there was some shoving that took place, wasn't there?

A Yes.

Q And Larry was involved in that, right?

A Yes.

Questions about the scuffle or fight at the lounge between Baker and another party, which occurred immediately prior to the killing, were clearly invited by the defense's cross-examination of the witness, which sought to portray Baker as non-violent. For this reason, evidence of the scuffle was properly admitted even though it related to an otherwise extraneous occurrence. See Griffin v. State, 787 S.W.2d 63, 67 (Tex. Crim. App. 1990). We overrule point four. Affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 26, 1994

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