Alfonzo Lamar Black v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-05-00130-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALFONZO LAMAR BLACK, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant Alfonzo Lamar Black of the offense of aggravated assault on a public servant and assessed his punishment at imprisonment for thirty years. In his one issue on appeal, Appellant contends the trial court erred in admitting evidence of fourteen warrants for his arrest outstanding at the time of his arrest for this offense. We affirm.

Background

Officer Patrick Mulligan observed Appellant s car roll through a stop sign. Officer Mulligan followed Appellant and activated the lights on his motorcycle signaling that Appellant should stop. Appellant told his passenger, his fiancé, that he intended to run. Appellant turned his car into a residential driveway and drove sixty yards up the steeply inclined driveway before stopping. Officer Mulligan stopped his motorcycle a car length or a car length and a half behind Appellant s vehicle. Immediately after stopping his car, Appellant fled on foot through the residence s backyard and into the nearby woods. Appellant s auto started rolling backwards down the hill. Before Officer Mulligan could push his motorcycle out of the way, Appellant s car, with its motor still running and the transmission still in drive, hit Officer Mulligan and the motorcycle, slamming the officer and the motorcycle to the ground between a retaining wall and Appellant s car. Officer Mulligan suffered a cut nose and a slight sprain of his left ankle. He also testified that he was stiff and sore for the next few days.

Another officer and a citizen apprehended Appellant by tackling him after a short chase.

Extraneous Offenses

In his one issue presented, Appellant contends the trial court reversibly erred in admitting evidence of fourteen warrants for his arrest outstanding at the time of his apprehension for this offense.

Standard of Review

A trial court s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). As long as the trial court s ruling was within the zone of reasonable disagreement, its decision will be sustained. Id. at 391. A determination is beyond the zone of reasonable disagreement if by no reasonable perception of common experience could it be concluded that the proffered evidence had a tendency to make the existence of a fact of consequence more or less probable than it would be otherwise. Id. If the trial court s ruling on the admission of evidence is correct under any theory of law, the trial court s decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Applicable Law

Rule 404(b) of the Texas Rules of Evidence provides in pertinent part as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Tex. R. Evid.404(b). [T]he mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, in itself, make that evidence admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). A Rule 404(b) objection requires a relevancy analysis of the challenged evidence. Id. Relevant evidence means 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. Evidence which is not relevant is inadmissible. Tex. R. Evid. 402. In Rankin, the court of criminal appeals explained the relevancy inquiry necessary under 404(b).

Under Montgomery, then, it appears that fact of consequence includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a fact of consequence. A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a fact of consequence in the case more or less likely.

Rankin, 974 S.W.2d at 710.

Although the evidence of extraneous offenses satisfies all the requirements for admissibility under Rule 404(b), the trial court may, under Rule 403, still exclude it, because it is excessively prejudicial. Id. Rule 403 states as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex. R. Evid.403. If the defendant has raised a Rule 403 objection, the trial court must conduct a balancing test to determine if the probative value of the evidence is substantially outweighed by one or more of the named dangers. Montgomery, 810 S.W.2d at 388. Factors to be considered in making this determination include the potential the other crimes, wrongs, or acts have to impress the jury in some irrational but indelible way and the trial time needed to develop the evidence. The proponent s need for the evidence should be assessed considering what other evidence the proponent has available to establish the same fact that the extraneous misconduct was relevant to show, how strong that evidence is, and whether the fact of consequence is related to an issue in dispute. Id. at 390.

Appellant was charged with acting intentionally, knowingly, or recklessly. The Penal Code defines these culpable mental states:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor s standpoint.

Tex. Pen. Code Ann. 6.03(a)-(c) (Vernon 2003).

Discussion

Immediately before the close of the State s evidence, the prosecutor, over Appellant s objection, asked Officer Horton of the Tyler Police Department how many warrants for Appellant s arrest were outstanding on April 27, 2004, the date of the instant offense. The prosecutor then asked Officer Horton to read for what offenses the fourteen warrants were issued. Officer Horton read as follows:

Criminal non-support, possession of marijuana, failed to identify, possession of marijuana, no driver s license, failed to maintain financial responsibility, failed to appear, failed to appear, speeding, failed to maintain financial responsibility, no driver s license, racing, failed to maintain financial responsibility, and no driver s license.

Appellant had objected to the testimony regarding the outstanding warrants under Rule 404(b), contending that, although the evidence was probative of the reason for his attempt to evade arrest, it had no relevance to any issue in dispute. Therefore, Appellant argued, the testimony about the warrants served no purpose except to show character conformity and was inadmissible. Even if relevant, Appellant contended, the probative value of the evidence was substantially outweighed by the danger of its prejudicial effect.

The State maintained at trial that the evidence was probative of Appellant s motive in assaulting Officer Mulligan and therefore relevant to show intent or state of mind.

The trial court found the evidence regarding the warrants was relevant to show why Appellant reacted in such a peculiar fashion to an apparent traffic stop. The trial court also conducted a Rule 403 balancing test and determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice from their admission.

The facts are not in dispute. It is uncontroverted that when Appellant saw Officer Mulligan signaling him to stop, he told his fiancé that he was going to run; he turned into a long inclined driveway, stopped the car with its rear wheels still on the downhill slope, and fled leaving the car s transmission in drive. It is also uncontested that, as Officer Mulligan dismounted from his motorcycle, he saw Appellant flee and then saw Appellant s vehicle rolling down the hill toward him. There is no question that Officer Mulligan was injured in the resulting collision.

Appellant s culpable mental was the only disputed issue. The State had the burden of establishing that Appellant s conduct was not merely grossly negligent or even criminally negligent, but that Appellant acted intentionally, knowingly, or recklessly. The State suggests on appeal that the evidence of the outstanding warrants aids the inference that Appellant, desperate to avoid imprisonment, left the vehicle intending that it roll back on the officer, impeding the officer s pursuit and aiding Appellant s escape. It seems improbable that Appellant acted intentionally. But from these facts, the jury might reasonably infer recklessness; that, because of the warrants, Appellant was so desperate to evade arrest that, knowing the officer was dismounting behind him, he abandoned his vehicle on an incline and in drive, consciously disregarding the substantial and unjustifiable risk of injury to Officer Mulligan. Therefore, the evidence of the outstanding warrants does more than explain his flight, but also bears on the elemental issue of Appellant s culpable mental state. The trial court did not abuse its discretion in determining the evidence admissible under Rule 404(b).

The trial court also found that the challenged testimony should not be excluded under Rule 403. Although we have determined that the testimony in question served to make more probable a fact of consequence at issue, Appellant s culpable mental state, we hesitate to characterize the evidence as compelling. Moreover, the State presented no evidence, other than the warrants, that Appellant had actually committed the offenses named in the warrants.

At least three factors must be weighed in favor of admitting the challenged evidence. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). Most of the extraneous offenses were traffic related. One was for criminal nonsupport and two others were for possession of marijuana. Therefore, the offenses had only a slight potential to irrationally and indelibly impress the jury. The State devoted little time to the development of the evidence of the outstanding warrants. Finally, the State apparently had almost no other evidence available that might serve to establish one of the culpable mental states charged. We conclude that the trial court did not abuse its discretion in refusing to exclude the evidence under Rule 403. Appellant s sole issue is overruled.

Disposition

The judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered August 25, 2006.

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

(DO NOT PUBLISH)