Hart, Brian ( 2015 )

PD-1426-15 PD-1426-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/5/2015 1:58:04 PM
Accepted 11/5/2015 3:27:33 PM
NO. PD-_______________ ABEL ACOSTA
CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Brian Hart, Appellant
v.
The State of Texas, Appellee
*************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
***************
FROM THE COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
FORT WORTH, TEXAS
NO. 02-14-00268-CR
TARRANT COUNTY
TRIAL COURT NO. 1365673
R. Scott Walker
STATE BAR # 24004972
222 W. Exchange Avenue
Fort Worth, TX 76164
(817) 478-9999
November 5, 2015
(817) 977-0163 FACSIMILE
scott@lawyerwalker.com
Attorney for Appellant
Oral Argument Not Requested
1
IDENTITY OF TRIAL JUDGE, PARTIES, AND COUNSEL
The following is a complete list of all
parties, the trial judge, as well as the names and
addresses of all counsel.
Trial Judge: Hon. Mollee Westfall
Hon. Roger Towery
Appellant: Brian Hart
Trial Counsel: Kathy Lowthorp
Attorney at Law
P.O. Box 13575
Arlington, Texas 76094
Appellate R. Scott Walker
Attorney for Appellant: Attorney at Law
222 W. Exchange Avenue
Fort Worth, Texas 76164
Appellee: The State of Texas
Trial Tracey Kapsidelis &
Rebecca McIntire
Attorney for Appellee: Tarrant County Assistant
District Attorney
401 W. Belknap
Fort Worth, Texas 76196
Appellate Deborah Windsor
Attorney for Appellee: Tarrant County
District Attorney
401 W. Belknap
Fort Worth, Texas 76196
2
TABLE OF CONTENTS
PAGE
IDENTITY OF TRIAL JUDGE, PARTIES, AND COUNSEL. . 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . . 6
QUESTION PRESENTED . . . . . . . . . . . . . . . 6
ARGUMENT (Evidence of Defendant’s status as a
sex offender should have been excluded.). . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 15
APPENDIX. . . . . . . . . . . . . . . . . . . . 16
3
INDEX OF AUTHORITIES
CASES
Montgomery v. State,
810 S.W.2d 372 (Tex.Crim.App. 1991). . . . 7, 8
Mozon v. State,
991 S.W.2d 841 (Tex.Crim.App. 1999) . . . . 8
Robles v. State,
85 S.W.3d 211 (Tex.Crim.App. 2002). . . . . . 7
STATUTES
Texas Rules of Evidence,
§609. . . . . . . . . . . . . . . . . . . . 11
4
STATEMENT REGARDING ORAL ARGUMENT
Oral argument of this case is hereby not
requested on behalf of Appellant.
All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
BRIAN HART, Appellant-Applying for Review
V.
THE STATE OF TEXAS, Appellee
************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:
STATEMENT OF THE CASE
This appeal has resulted from a criminal
prosecution for arson. On June 3, 2014, Appellant
pled not guilty to the offense. On June 4, 2014,
after evidence was presented, the jury found
Defendant guilty. The jury set punishment at three
years confinement. (C.R., Vol.1 p.154).
5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written non-published memorandum
opinion on October 8, 2015. The deadline for
filing a Petition for Discretionary Review is
November 9, 2015.
QUESTION PRESENTED
Whether the trial judge erred by admitting
evidence of Defendant’s status as a sex offender
into evidence during the punishment phase of the
trial.
ARGUMENT
APPLICABLE LAW: Rule 401 of the Texas Rules of
Evidence makes it clear that evidence is relevant
if it makes the existence of a fact that is of
consequence to the determination of the action more
probable than it would be without the evidence.
However, even relevant evidence may not be
admissible for every purpose. Because of the fact
that our system of justice recognizes that a
defendant should be tried only for the charged
6
crime and not for his criminal propensities,
evidence of extraneous offenses is normally
inadmissible. Robles v. State, 85 S.W.3d 211,213
(Tex.Crim.App. 2002). However, Rule 404(b) allows
evidence of other crimes, wrongs, or acts if the
evidence has relevance apart from character
conformity. Evidence of other crimes, wrongs or
acts may be admissible to prove identity or intent,
to establish motive, or to show opportunity or
preparation. Montgomery v. State, 810 S.W.2d 372,
387-88 (Tex.Crim.App. 1991)(opinion on rehearing).
Rebuttal of a defensive theory is one of the
permissible other purposes for which relevant
evidence may be admitted under Rule 404(b).
However, any evidence permissible under 404(b) may
still be excluded under Rule 403 if its probative
value is substantially outweighed by the danger of
unfair prejudice. Montgomery v. State, 810 S.W.2d
372, 387 (Tex.Crim.App. 1991)(opinion on
rehearing). If a court determines that evidence of
a prior bad act is evidence that is relevant under
404, then the court is to do a balancing test to
7
determine if the probative value is substantially
outweighed by the danger of unfair prejudice.
Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App.
1999). The balancing test is comprised of four
factors: (1) how compelling the extraneous offense
evidence serves to make a fact of consequence more
or less probable; (2) the potential that 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; (4) whether the proponent has other
available evidence to establish the fact of
consequence that the extraneous misconduct is
relevant to show. Mozon v. State, 991 S.W.2d 841,
847 (Tex.Crim.App. 1999), Montgomery v. State, 810
S.W.2d 372, 389-390 (Tex.Crim.App. 1991). A trial
court’s determination as to the admissibility of
evidence under 403 is within the discretion of the
trial court and will not be overturned absent an
abuse of discretion. Montgomery v. State, 810
S.W.2d 372, 391 (Tex.Crim.App. 1991)(opinion on
rehearing).
8
ANALSIS: The Court of Appeals correctly ruled
that the admission of the complained of evidence in
the guilt/innocence phase of trial was error.
However, the Appeals Court went on to say that the
error was harmless because the same evidence was
correctly admitted in the punishment phase of
trial. (Opinion p. 2). The analsis was that the
probative value of impeachment of Appellant
outweiged the danger of unfair prejudice under 403.
(Opinion p. 4-5). The Appeals Court failed to see
the enormous degree of prejudice created by telling
the jury that Appellant was a convicted sex
offender.
The defense theory in this arson case was the
defense of necessity. (C.R. P. 135). The
Defendant testified at the guilt/innocence phase of
trial. He admitted that he set a small fire in the
bathroom of his motel room. (R.R. Vol. 4 p. 79).
However, his testimony was that he had a seizure
which caused him to have delusions that some people
were trying to get into the room to kill him. He
then set the fire for the purpose of causing a
9
smoke detector to be activated so emergency
personnel would come and save him. (R.R. Vol. 4 p.
58-86).
Prior to any testimony, Defense Counsel
presented a motion in limine to the court. The
motion dealt with testimony from police that the
Defendant told them that he was a registered sex
offender. The argument was that the Defendant’s
status as a registered sex offender was evidence of
a conviction for a sex offense, and would be
extremely prejudicial to the Defendant. The State
argued that the evidence should come in because it
was evidence of the Defendant’s state of mind or
motive. The trial judge denied the motion in
limine. (R.R. Vol. 3, p. 8-16). When the evidence
was offered, Defense Counsel objected, and the
objection was overruled. (R.R. Vol. 3, p. 200).
Again, the Court of Appeals correctly ruled that
this ruling was error.
Again, the Court of Appeals ruled that the
evidence was admissible in punishment because it
was probative for impeaching Appellant. The
10
evidence was extremely prejudicial and the
prejudice substantially outweighed the probative
value. There is no doubt that jurors are extremely
prejudiced toward sex offenders. As soon as a
juror learns that a defendant is a registered sex
offender, he or she is ready to vote guilty
regardless of whether the case has been proven
beyond a reasonable doubt. Allowing sex offender
evidence creates a situation in which a jury is
likely to render a verdict in an irrational but
nevertheless indelible way. Therefore, the second
Montgomery/Mozon factor definitely favors
inadmissability. The enormous degree of prejudice
created by telling the jury that Appellant was a
convicted sex offender far outweighed any probative
value.
Rule 609 of the Texas Rules of Evidence states,
“For the purpose of attacking the credibility of a
witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited
from the witness or established by public record,
but only if the cime was a felony or involved moral
11
turpitude, regardless of punishment, and the court
determines that the probative value of admitting
this evidence outweighs its prejudicial effect to a
party.” Under 609, the Defendant does not need to
show that unfair prejudice substantially outweighs
the probative value. The evidence would be
inadmissible under 609 if the prejudicial effect is
merely equal to the probative value. There is no
need for reiterating the prior argument as to how
extreme the prejudicial effect is when evidence is
admitted of a sexually-related offense. However,
the probative value here relates to how much the
conviction attacks the credibility of the
Defendant. In this case, the conviction does
little to attack the credibility of the Defendant,
because the State actually adopted, to a large
extent, the Defendant’s testimony. In closing, the
State agreed that the Defendant was delusional and
paranoid. (R.R. Vol. 4, p. 220). The prosecution
also stated in closing that the officers and
firefighters at the scene understood that the
Defendant was not really grounded in reality that
12
night. (R.R. Vol. 4, p. 221). The State even told
the jury that they all knew that the Defendant was
delusional and paranoid. (R.R. Vol. 4, p. 222).
The State also agreed with the Defendant’s
testimony that he had intentionally failed to take
his seizure medication. (R.R. Vol. 4, p. 220).
The only part of the Defendant’s testimony that the
State questioned is whether the Defendant told
officers and paramedics that he had had a seizure
that morning. (R.R. Vol. 4, p. 222). The primary
focus of the State’s close was that the Defendant
admitted that he intentionally failed to take his
seizure medication and that doing so was not a
reasonable thing to do because doing so could cause
a seizure. Therefore, the probative value of the
prior sexually-related conviction for the purpose
of attacking the credibility of the Defendant was
minimal at best, while the prejudicial effect was
enormous. The probative value certainly did not
outweigh the prejudicial effect. The ruling was in
error and was an abuse of discretion.
13
PRAYER
WHEREFORE, PREMISES CONSIDERED, Brian Hart,
Appellant, prays that the case be reversed or for
whatever other relief he has shown himself
entitled.
Respectfully Submitted,
S/Scott Walker
By: R. Scott Walker
Attorney for Appellant
222 W. Exchange Avenue
Fort Worth, Texas 76164
(817) 478-9999
(817) 977-0163 FAX
State Bar No. 24004972
CERTIFICATE OF SERVICE
A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 5th day of November, 2015.
s/Scott Walker
R. Scott Walker
14
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2,041 words, and that the document is in
14 point type.
s/Scott Walker
R. Scott Walker
15
APPENDIX
16
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00268-CR
BRIAN HART APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1365673R
----------
MEMORANDUM OPINION1
----------
I. Introduction
A jury convicted appellant Brian Hart of arson and assessed his
punishment at three years’ confinement.2 In a single issue, Hart complains that
1
See Tex. R. App. P. 47.4.
2
Arson is a state jail felony with a punishment range of 180 days’ to two
years’ confinement, but its punishment range can be enhanced by prior felony
convictions to the two-to-twenty-year punishment range of a second-degree
the trial court’s two admissions of evidence of his sex offender status during the
guilt-innocence phase of trial were extremely prejudicial and likely caused him to
be convicted of arson “solely because he is a sex offender.” We conclude that
while the trial court erred by admitting the evidence in one instance, as set out
below, that the instance was harmless in light of the subsequent proper
admission of similar evidence.3 See Anderson v. State, 717 S.W.2d 622, 627
(Tex. Crim. App. 1986). Further, even if both had been admitted in error, neither
affected Hart’s substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070 (1999). Therefore, we affirm.
II. Background
Much of the evidence in this case was undisputed. For example, no one
disputed that Hart set a fire in his hotel room or that he suffered from seizures.
felony. See Tex. Penal Code Ann. § 12.33 (West 2011) (second-degree felony
punishment range), § 12.425 (West Supp. 2014) (penalties for repeat and
habitual felony offenders on trial for state jail felony). Hart’s indictment contained
an enhancement paragraph regarding his prior felony convictions of failure to
comply with sexual offender registration requirements on August 10, 2004, and
indecency with a child by fondling on June 17, 1996. Hart pleaded true to the
enhancement paragraph, and the jury found that paragraph true, elevating Hart’s
punishment range to that of a second-degree felony.
3
Three different judges presided over this matter during the three-day trial.
A Tarrant County magistrate judge conducted voir dire on the first day. The
sitting district judge presided during the second day of trial, and a retired judge
sitting by assignment presided during the final day of trial, which included a
portion of the guilt-innocence phase.
2
The issue before the jury was whether the defense of necessity applied based on
Hart’s post-seizure hallucination that people were after him and that he needed
to draw the attention of rescuers by setting the fire.
III. Discussion
Hart complains that the admission of Arlington Police Officer David Todd’s
recitation of Hart’s statement about being a sex offender and the evidence of
Hart’s conviction for failure to register as a sex offender during the guilt-
innocence phase of the trial were substantially more prejudicial than probative
and ultimately harmful in that the jury convicted him of arson.
A. Impeachment
Hart elected to testify, and the State offered evidence of Hart’s criminal
history, including a prior conviction for failure to register as a sex offender, during
Hart’s testimony. Prior to tendering the evidence, in a conference outside the
jury’s presence, the State argued that Hart’s failure-to-register conviction was
admissible impeachment evidence that went not only to Hart’s credibility but also
to his motive, intent, preparation, plan, knowledge, identity, absence of mistake,
or accident and to show his clarity of mind at that time. Hart argued that the
failure-to-register conviction was not a crime of moral turpitude, that it was
irrelevant, and that its highly prejudicial nature outweighed any probative value
under rule 403. The trial court overruled Hart’s objections, and after the evidence
3
was introduced, Hart requested a running objection, which the trial court
granted.4
Rule of evidence 609(a) generally provides that evidence of a criminal
conviction is admissible if the court determines that its probative value outweighs
its prejudicial effect. Tex. R. Evid. 609(a). The State argued at trial, as it does
here, that Hart’s failure-to-register conviction was probative as to Hart’s
credibility.
In reviewing the trial court’s conduct in balancing the probative value of the
evidence against its prejudicial effect, we must accord the trial court “wide
discretion.” Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). A
ruling permitting use of a prior conviction to impeach will be reversed on appeal
only upon a showing of a clear abuse of discretion. Id. Only if the trial court’s
decision falls outside the “zone of reasonable disagreement” has it abused its
discretion. Id.; Miller v. State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth
2006, pet. ref’d).
A nonexclusive list of factors to consider in weighing the probative value of
a conviction against its prejudicial effect includes (1) the past crime’s
impeachment value, (2) the past crime’s temporal proximity relative to the
charged offense and the witness’s subsequent history, (3) the similarity between
the past crime and the offense being prosecuted, (4) the importance of the
4
The trial court also admitted Hart’s conviction for possession of
methamphetamine.
4
defendant’s testimony, and (5) the importance of the credibility issue. Theus,
845 S.W.2d at 880. The impeachment value of crimes that involve deception is
higher than those involving violence, while those involving violence have a higher
prejudicial potential. Id. at 881. Temporal proximity favors admission if the past
crime is recent and the witness has demonstrated a propensity for running afoul
of the law, while if the past crime and charged crime are similar, this weighs
against admission because similarity suggests the possibility that the jury could
convict on the perception of a pattern of past conduct rather than on the facts of
the charged offense. Id. When the case involves the testimony of only the
defendant and the State’s witnesses, the importance of the defendant’s credibility
and testimony escalates and weighs in favor of admission. Id.
Because Hart’s failure to register as a sex offender worked to conceal the
address at which he resided or intended to reside, the offense was a crime
involving deception. See Tristan v. State, 393 S.W.3d 806, 813–14 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (holding that failure to register as a sex
offender is “a crime of deception” and “a significant piece of evidence” bearing on
a defendant’s character for truthfulness under rule 609); see also Robertson v.
State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth 1985, no pet.) (holding that a
crime involving dishonesty is relevant to the credibility of a witness). This factor
weighs in favor of admission, as does the fact that the failure-to-register offense
and the charged arson offense were not similar. See Theus, 845 S.W.2d at 881.
5
However, the failure-to-register offense was several years old; this factor weighs
against admission. See id.
The last two factors under Theus are related in that they both depend on
the nature of a defendant’s defense and the means available to him of proving
that defense. See id. Hart’s necessity defense hinged upon whether the jury
believed his contention that he set the fire in an attempt to summon aid while
suffering from a delusion that people were trying to attack him. Hart testified to
this, as did Dr. Roger Blair, an expert who opined that he had no doubt that Hart
had been psychotic and suffering from delusions that were very real to him at the
time he set the fire, none of which would seem out of the ordinary, given Hart’s
mental condition at the time. When the case involves the testimony of only the
defendant and the State’s witnesses, the importance of the defendant’s credibility
and testimony escalates, as will the need to allow the State the opportunity to
impeach his credibility. See id. Although Hart also had an expert witness testify
in support of his defense, because Hart had to confess to the offense in order to
use the necessity defense,5 his credibility and character for veracity were directly
in issue. See Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).
Therefore, these factors weigh in favor of admission. See Theus, 845 S.W.3d at
5
The confession-and-avoidance doctrine applies to the necessity defense,
requiring a defendant to admit the conduct—both the act and the culpable mental
state—of the charged offense to be entitled to a necessity instruction. Juarez v.
State, 308 S.W.3d 398, 399, 405 (Tex. Crim. App. 2010); see Tex. Penal Code
Ann. § 1.07(a)(10) (West Supp. 2014) (defining conduct to mean an act or
omission and its accompanying mental state).
6
881. We conclude that because the majority of the factors under Theus favor
admission, the trial court did not abuse its discretion by admitting Hart’s failure-
to-register conviction.6 See id.; see also Tristan, 393 S.W.3d at 814; Theragood
v. State, No. 08-10-00013-CR, 2011 WL 3848840, at *4–7 (Tex. App.—El Paso
Aug. 31, 2011, no pet.) (not designated for publication).
B. Relevance
Hart also complains about the admission of Officer Todd’s testimony
relating Hart’s statement at the scene about being a sex offender. Officer Todd
testified that Hart told him that
he had been in the room with two females that he didn’t know the
names of, and he advised that the females had somehow found out
that he was a sex offender, and he didn’t know how they found out,
but he said that they left and that they returned with two males and
that the males began pounding and kicking the door, and that after—
or whenever they started pounding and kicking the door, he went to
the bathroom, shut the door, and lit toilet paper on fire to get the
attention of [the police] and the fire department. [Emphasis added.]
6
Further, the trial court included an instruction in the jury charge with
regard to the use of Hart’s prior convictions that either eliminated or reduced the
potential that the jury would use this evidence in an impermissible manner
because we generally presume that juries follow the trial court’s instructions in
the manner presented. Kirk v. State, 199 S.W.3d 467, 479 (Tex. App.—Fort
Worth 2006, pet. ref’d); see Young v. State, 283 S.W.3d 854, 882 (Tex. Crim.
App. 2009) (Cochran, J., concurring) (“We must, however, ‘presume[] that jurors,
conscious of the gravity of their tasks, attend closely [to] the particular language
of the trial court’s instructions in criminal cases and strive to understand, make
sense of, and follow the instructions given them.’”) (quoting Francis v. Franklin,
471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976 n.9 (1985)), cert. denied, 558 U.S.
1093 (2009); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).
Courts will abandon this presumption only if there is evidence showing that the
jury did not follow the instructions. Williams, 937 S.W.2d at 490. There is no
such showing here.
7
That is, Officer Todd testified that Hart’s statement attributed the motivation of his
would-be attackers to their belief that he was a sex offender.7
While Hart’s objection to the evidence was summarily overruled without
argument, earlier that day the trial court had permitted extended argument
regarding the evidence in question when it considered but denied Hart’s motion
in limine. During the limine argument, Hart argued that the evidence was
irrelevant, or alternatively, that any probative value was outweighed by its highly
prejudicial effect. The State argued that the evidence was relevant to prove
Hart’s reason for setting the fire, his motive, his state of mind, and to rebut a
claim of medical necessity. During the limine hearing, the trial court indicated
that it would “allow it” because it went “directly to his state of mind” and to motive,
which, the trial court stated, was “squarely an issue” in the case.8
It is undisputed that Hart’s would-be attackers were not real, that they were
a delusion. To the extent that Hart believed that these imaginary people were
trying to kill him, evidence of this belief was probative of Hart’s mental state and
Hart’s motive in setting fire to the hotel room. However, the evidence that the
7
The testimony is ambiguous on this point. It is not clear from Officer
Todd’s testimony whether the imaginary men’s belief that Hart was a sex
offender was, in fact, correct or incorrect.
8
While this court is aware that motions in limine do not preserve error, see
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 555
U.S. 1105 (2009), the hearing on the motion in limine allowed both sides to flesh
out their arguments for and against the admission of the evidence.
8
trial court admitted went one step too far. The mental state and motivations of
Hart’s hallucinations—whether greed, hatred, jealousy, animosity toward sex
offenders, or a quest to save the planet—are wholly irrelevant9 to any fact of
consequence in this case. The fact of consequence here was whether Hart
thought he was being attacked, not the motivation he attributed to his imaginary
attackers.
C. Harmless Error
Although the court erred by admitting Officer Todd’s testimony, this error
ultimately proved harmless. It is well-established that the improper admission of
evidence becomes harmless error if the same facts are proved by other properly
admitted evidence. Land v. State, 291 S.W.3d 23, 28 (Tex. App.—Texarkana
2009, pet. ref’d); see also Anderson, 717 S.W.2d at 627. As discussed above,
Hart’s conviction for failure to register as a sex offender was subsequently
admitted into evidence, and we have held that the trial court committed no error
by doing so; therefore, admitting Officer Todd’s testimony on this point was
subsequently rendered harmless.
Further, if, as here, the trial court’s ruling merely offends the rules of
evidence, such erroneous admission of evidence is nonconstitutional error
9
Relevant evidence is that which has any tendency to make the existence
of any fact of consequence to the determination of the action more probable or
less probable. See Tex. R. Evid. 401; Hawkins v. State, 871 S.W.2d 539, 541
(Tex. App.—Fort Worth 1994, no pet.) (citing Montgomery v. State, 810 S.W.2d
372, 387 (Tex. Crim. App. 1990) (op. on reh’g)).
9
governed by rule 44.2(b). See Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001); see also Walters v. State, 247 S.W.3d 204, 222 (Tex. Crim.
App. 2007). Under rule 44.2(b), any error, defect, irregularity, or variance that
does not affect the appellant’s substantial rights must be disregarded. Tex. R.
App. P. 44.2(b). A substantial right is affected when the error had a substantial
and injurious effect or influence in determining the jury’s verdict. King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not
affect a substantial right if we have “fair assurance that the error did not influence
the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, and the character of the alleged
error and how it might be considered in connection with other evidence in the
case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also
consider the jury instructions, the State’s theory and any defensive theories,
whether the State emphasized the error, closing arguments, and even voir dire, if
applicable. Id. at 355–56.
The evidence showed that Hart, who had been homeless prior to moving
into the Caravan Motel, set a fire in his room in the early morning hours of August
24, 2013. The Caravan Motel is an older wood-framed, two-story hotel which
10
had been grandfathered-in under an older fire code. Fifteen to twenty occupants
were in the structure at the time of the fire.
While Arlington Fire Department’s deputy fire marshal classified the fire as
small, he testified that it had the potential to be dangerous because it occurred at
approximately 5:00 a.m., a time when the old hotel’s occupants would likely be
asleep, and the condition of the structure would cause the fire to burn quickly.
One of the firefighters described the incident as a “heavy box response,”
meaning that more firefighting units would respond because it was a high
occupancy building with a greater potential for victims.
Hart admitted that he intentionally set the fire but testified that he did so in
an attempt to set off the smoke alarm and thereby summon help because he
thought people were attempting to do him harm.10 See Tex. Penal Code Ann.
§ 28.02(a-2)(1), (f) (West 2011) (stating that a person commits an offense if he
intentionally starts a fire and recklessly damages or destroys a building belonging
to another). The resulting fire caused damage to the bathroom door and the
subfloor.
10
Hart testified that he panicked and knew he needed help, but he had no
ability to summon aid. According to Hart, because he did not have a cell phone
and there was no phone in the hotel room, he thought, “[T]here’s a smoke alarm
in this room. If I make enough smoke, I’m going to get my help. People will
come. I will -- I’ll get my treatment. I’ll be saved.” So he lit some toilet paper on
fire with a cigarette lighter and waited for help to arrive. Two firefighters and two
police officers confirmed that Hart told them at the scene that he had lit toilet
paper on fire so that help would come because he thought people were after him.
11
Both sides agreed that Hart’s would-be attackers that evening were not
real but were part of a delusion caused by Hart’s failure to take his medication.
Hart testified that while he had been prescribed anti-seizure, anticonvulsant
medication, he had not taken his pills.11 Hart explained that he had just started a
new job and, because obtaining a prescription refill at Mission Arlington’s free
medical clinic would require him to wait in line for a full day, that he had been
trying to make his medication last for as long as possible. Consequently, he was
not taking his medication as often as prescribed.
The jury received limiting instructions during Officer Todd’s testimony and
in the court’s charge with regard to the evidence in question, and we generally
presume that the jury followed the trial court’s instructions in the manner
presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998);
see also Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (stating that
the presumption that the jury followed the trial court’s instructions is rebuttable
but that the appellant must rebut the presumption by pointing to evidence that the
jury failed to follow the trial court’s instructions). The State embraced the
limitations on the jurors’ consideration of this evidence as early as voir dire when,
in response to the question, “Can prior convictions be brought up as evidence?”
posed by one of the veniremembers, the State explained,
11
Hart was found with an unmarked bottle of white pills. Dr. Blair, the
board-certified neurologist who reviewed Hart’s medical records, confirmed that
the medicine in Hart’s medicine bottle was seizure medication that he had been
prescribed.
12
Prosecutor: Not normally in the guilt-innocence phase,
because we want the jury to focus on the actual action, not the –
what somebody may have done in their prior –
Venireperson: Yeah, but wouldn’t that be important to know?
Prosecutor: It would be important, but your job, if you are a
juror, is to decide the facts of the case based upon the evidence, not
based upon what somebody did in the past. And you would be
instructed on that. If a prior conviction came out during guilt-
innocence, the judge would give you very specific instructions on
what you could consider that for. Does that answer your question?
Venireperson: Uh-huh.
During closing arguments, the State argued that Hart had been delusional
and paranoid because he had deliberately chosen not to take his anti-seizure
medicine, that he was a liar, that he could not have reasonably believed that
setting the fire was immediately necessary to avoid harm, and that Hart was
reckless.
Hart’s counsel argued that Hart’s prior convictions were offered to confuse
the jurors and to prejudice them against Hart. She asked the jury to set aside
those old convictions unless they thought Hart’s integrity and credibility were
affected by them. She reminded the jury that Hart had made the decisions he did
because he had been homeless, and she argued that Hart had reasonably
believed that his conduct was immediately necessary to avoid imminent harm
because it would summon help to him.
In rebuttal, the State responded that an ordinary and reasonable person
would take his anti-seizure medicine and that Hart was, therefore, reckless when
13
he opted not to. The State also argued that Hart had adapted toilet paper into a
deadly weapon by igniting it with a cigarette lighter.12 The trial court included an
instruction on necessity in the jury charge, along with two limiting instructions,
and the jury found Hart guilty and found that he had used a deadly weapon.
Despite Hart’s explanation for setting the fire—which was repeated by
several witnesses in addition to Hart himself—the jury was entitled to find that
Hart had been reckless in setting the fire and that his belief that setting fire was
immediately necessary to avoid imminent harm was not reasonable in light of his
deliberate decision not to take his anti-seizure medication.13
In light of all of the evidence and the arguments presented at trial, and in
the context of the entire case against Hart, we conclude that the admission of
evidence that Hart was a sex offender did not have a substantial or injurious
12
We express no opinion about the State’s theory in this regard because it
was not raised as a point of error on appeal.
13
During the punishment phase, Hart pleaded true to the enhancement
allegation regarding his prior felony convictions. In closing, Hart’s counsel
reminded the jury that because the punishment range had been enhanced by
Hart’s admitting to his prior convictions, the jury had to decide from a range of
two to twenty years’ confinement but that Hart was already a prisoner of his
mind. She pointed out that Hart did not mean to burn down a building and that,
“[f]or whatever reason, he got the attention he needed.” And she pointed out that
Hart’s previous offenses had been several years prior and that Hart was
seventeen years old when he pleaded guilty to the 1996 indecency offense. She
also stated that Hart was still paying for that indecency conviction and would be
doing so for the rest of his life. She asked that the jury assess only two years’
confinement “because this crime is only worth that.” The prosecutor agreed that
Hart’s crime was not worthy of a twenty-year sentence but reminded the jury that
Hart had made choices that night and asked the jury to assess five years’
confinement. The jury assessed three years’ confinement.
14
effect on the jury’s verdict and did not affect his substantial rights. See King, 953
S.W.2d at 271. Therefore, we overrule Hart’s sole issue.
IV. Conclusion
Having overruled Hart’s sole issue, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 8, 2015
15
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00268-CR
Brian Hart § From the 371st District Court
§ of Tarrant County (1365673R)
v. § October 8, 2015
§ Opinion by Justice Sudderth
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By __/s/ Bonnie Sudderth_________
Justice Bonnie Sudderth