Belinda Kay Tucker v. The State of Texas--Appeal from 294th District Court of Van Zandt County

NO. 12-03-00382-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BELINDA KAY TUCKER, APPEAL FROM THE 294TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant Belinda Kay Tucker of murder and assessed her punishment at imprisonment for fifteen years. She presents two issues on appeal. First, she contends the trial court erred in admitting her statement that she had shot her boyfriend. In her second issue, she complains the trial court erred in excluding evidence from the victim s pen packet. We affirm.

Background

Appellant fled her mobile home during a violent argument with Timothy Byram, her live-in boyfriend. She told her friend (and co-defendant) Donna McCants what had happened. McCants armed herself with a handgun, and they both returned to Appellant s mobile home where she lived with Byram. In trying to enter the house, McCants shot a hole in the door. According to both women, Byram then burst through the door and started to struggle with both women on the porch. McCants fired one more shot without hitting anybody. After Byram had thrown her from the porch, Appellant took the gun from McCants who was struggling with Byram. She testified that she ducked her head down and fired. The bullet struck Byram in the back, killing him. Both women had been drinking before the incident, and Byram had a .15 blood alcohol level at the time of his death.

Deputy David Arnold arrived at the scene in response to a report of shots fired at that location. Upon his arrival, he saw a pickup truck with its headlights on parked facing the county road. He observed two women walking toward the truck. As he stopped his patrol car, he saw one of the women, later identified as Donna McCants, get into the truck. The other woman stood by the truck. He ordered the woman in the truck to get out. Deputy Arnold saw a pistol on the seat of the truck so he locked it inside the truck. In response to Deputy Arnold s inquiry, McCants identified herself. Arnold recognized Appellant from a previous disturbance call at this location. Arnold then asked both women what was going on tonight; what had happened here. Deputy Arnold told the jury that Appellant said that she had shot her boyfriend.

Deputy Kevin Mayberry arrived at the scene just as McCants was getting out of the pickup at Deputy Arnold s command. At approximately the same time, Deputy Arnold asked the two women what was going on, Deputy Mayberry told Arnold he could see a person lying on the porch. Apparently Appellant had already told Arnold that she had shot Byram before either deputy went to the porch and found Byram dead, lying face down with a pool of blood in the middle of his back. Both women were arrested within minutes and taken to the Van Zandt County Jail.

Appellant was charged with murder, convicted by a jury, and sentenced to imprisonment for fifteen years.

Admissibility of Statement

In her first issue, Appellant contends that her statement I shot my boyfriend was given in response to Deputy Arnold s question about what happened here. She argues that Deputy Arnold asked the question that elicited the statement knowing that shots had been fired, a pistol lay on the pickup seat, and that someone was lying on the porch. The circumstances, in Appellant s view, render her statement the product of custodial interrogation. Because her statement was elicited by Deputy Arnold without giving Miranda // and Article 38.22 // warnings, she contends it was inadmissible at trial and the trial court erred in admitting it.

Neither Miranda nor Article 38.22 are applicable unless Appellant gave the statement (1) while in custody and (2) in response to interrogation. The United State Supreme Court defined custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. California v. Beheler, 463 U.S. 1121, 1123, 89 S. Ct. 3517, 3519, 77 L. Ed. 2d 1275 (1983). Custody requires a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id., 463 U.S. at 1125, 89 S. Ct. at 3520. Custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person questioned. Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994).

The best recent discussion of the subject under Texas law is found in Dowthit v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). In Dowthit, the court of criminal appeals stated as follows:

We have outlined at least four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Concerning the first through third situations, Stansbury indicates that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Concerning the fourth situation, Stansbury dictates that the officers knowledge of probable cause be manifested to the suspect.

Id. at 255.

Appellant was not under formal arrest when she made the challenged statement nor had any restrictions been placed on her freedom of movement. She was neither a suspect nor the focus of an investigation. Appellant made the statement to Deputy Arnold at the very outset of his investigation before he knew a crime had been committed. Since Appellant was not in custody when she gave the statement, neither Miranda nor Article 38.22 is applicable, and the statement was admissible. Appellant s first issue is overruled.

Admissibility of Pen Packet

In her second issue, Appellant maintains the trial court erred in refusing to allow evidence from the deceased s pen packet to be used in support of her self defense theory. Byram s pen packet shows that his probation granted after a 1988 conviction for delivery of marijuana was revoked in 1991 for making terroristic threats. The trial court excluded the pen packet evidence because its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues or misleading the jury.

Appellant testified the decedent was violent and abusive toward her throughout the time they lived together. She had called the police to their house on several occasions because of his conduct. He beat her, chased her with a shotgun, and threatened her with a knife. On the night in question, he had choked Appellant and hit her windshield with a chair while she was in the truck. She escaped, she told the jury, only after the intervention of her sons. She testified that she feared for her own life as well as the life of her friend McCants and that she fired the single shot to protect herself and her friend from the attack by a 270-pound drunk.

Because Byram s pen packet shows that his probation granted after his conviction in 1988 for delivery of marijuana was revoked in 1991 for making terroristic threats, Appellant argues that evidence of Byram s violent behavior would have supported her plea of self defense in that it tended to prove both the victim s violent nature and Appellant s state of mind. Therefore, she contends the trial court erred in excluding the evidence under Rule 403.

Under Rule 403, the trial judge has substantial discretion in balancing probative value against unfair prejudice, and the trial judge will not be reversed absent an abuse of discretion. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). However, trial courts should favor admission in close cases in keeping with the presumption of admissibility of relevant evidence. Id. In determining whether the trial court has abused its discretion in the admission or exclusion of extraneous offenses, the reviewing court should consider the following factors:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way ;

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

(4) the force of the proponent s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Id.

The victim s convictions were for delivery of marijuana. A drug conviction is not evidence of a violent nature. The revocation of his probation because of his making terroristic threats is, however, at least some evidence of his violent character.

Appellant had only her own testimony to support her self defense theory, and the admission of Byram s pen packet would have provided at least some confirmation of Byram s violent character and of Appellant s fear for her life when she fired the fatal shot. However, evidence that Byram had spent time in prison for any reason would have had the potential to irrationally impress the jury that he was a bad person generally who probably deserved what he received.

A trial should exclude such evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). In reviewing the trial court s balancing test determination, the reviewing court is to reverse the trial court s judgment rarely and only after a clear abuse of discretion. The trial judge should not be reversed simply because the appellate court believes that it would have decided the matter otherwise. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991) (op. on reh g). Weighing the trial court s decision against the relevant criteria, we conclude that the trial court did not abuse its discretion in excluding the challenged evidence.

Conclusion

The judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered April 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)