Santhy Inthalangsy v. State ( 2020 )

Reversed and Remanded and Majority and Dissenting Opinions filed
September 24, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00205-CR
SANTHY INTHALANGSY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1471491
MAJORITY OPINION
In this appeal from a conviction for capital murder, Appellant Santhy
Inthalangsy argues that he is entitled to an acquittal because the evidence is
insufficient to support the conviction. He further argues in the alternative that, even
if the evidence were sufficient, he should still receive a new trial because the trial
court abused its discretion by admitting certain evidence. For the reasons below, we
reverse the trial court’s judgment and remand for a new trial.
BACKGROUND
A woman nicknamed Cassie was kidnapped twice in a single week. During
the first kidnapping, Cassie retained the use of her cellphone, and she texted her
landlord saying that she was “being held hostage” because of a “huge deal gone
bad.” Cassie indicated that she had been trying to facilitate a large transaction
between drug dealers, but that someone had stolen the money, which belonged to
her captors. Cassie did not identify her captors by name in her text messages, but
she identified the street address where they were keeping her. The residence at that
street address was occupied by Appellant’s girlfriend, Linda.
The captors released Cassie after she arranged to give them her father’s boat
to compensate them for their loss. Upon her release, Cassie went to her garage
apartment, where her landlord immediately evicted her and her boyfriend, Jimmy.
Cassie then followed Jimmy to a house belonging to his friend, Frank, where
Jimmy had been working as a mechanic. While on Frank’s property, Cassie and
Jimmy slept overnight in their separate cars, until Frank discovered them one
morning and invited them inside to sleep on the couch.
As Cassie and Jimmy stayed with Frank, Cassie’s captors renewed their
search for her, apparently due to title problems with the boat. The captors first went
to Cassie’s garage apartment, where her landlord saw what he believed to be three
Asian men going through the belongings that Cassie had left behind. Then they went
to the house belonging to Jimmy’s parents, where they were identified as two Asian
men (Appellant and his associate Amalinh) and one Asian woman (Linda).
The captors were eventually tipped off by a man nicknamed Monk, another
drug dealer in the area who knew the individuals involved and who knew about
Linda’s desire to track down Cassie. Monk called Frank one morning and asked if
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Frank knew Cassie’s whereabouts. When Frank said that Cassie was staying with
him, Monk told Frank to not mention their conversation to anyone. Monk then told
Linda where she could find Cassie.
Linda gathered Appellant and Amalinh, and together they drove out to Frank’s
neighborhood, but they could not locate Frank’s house. Linda contacted Monk, who
lived nearby, and he agreed to show them the way.
Monk drove in his own car and, as he approached Frank’s house, he called
Frank and told Frank to meet him in his car, where he said that he would provide
Frank with some drugs. As instructed, Frank walked outside to Monk’s car, which
was parked on the street, and he got inside. Linda then pulled into Frank’s driveway,
as Frank watched from a distance.
Frank saw Appellant and Amalinh exit Linda’s vehicle, rummage briefly
through her trunk, and then walk towards his house. Shortly after they were inside,
Frank heard a loud sound that resembled a gunshot. Then he saw Cassie being
escorted out of the house with Appellant and Amalinh on either side of her. Cassie
and her captors got into the backseat of Linda’s vehicle, with Cassie in the middle,
and then Linda drove away.
Frank exited Monk’s vehicle after Linda left. When Frank returned to his
house, he found Jimmy gasping for air and bleeding from a single gunshot wound to
the face. Frank called 911 and Jimmy was rushed to a local hospital, but Jimmy
succumbed to his injuries. The next day, Cassie’s body was found near an area river,
having been shot multiple times.
Appellant was soon charged with Jimmy’s capital murder, with the
aggravating element being that the murder occurred during the course of Cassie’s
second kidnapping. Appellant pleaded not guilty, but a jury found otherwise and,
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because the prosecution did not seek the death penalty, the trial court sentenced him
to a mandatory term of life imprisonment without the possibility of parole.
ANALYSIS
Appellant raises four issues on appeal:
1. the evidence is legally insufficient to support his conviction for capital
murder;1
2. the trial court abused its discretion by admitting evidence of Cassie’s
extraneous murder;
3. the trial court abused its discretion by admitting certain hearsay
statements; and
4. the trial court abused its discretion by denying Appellant’s motion for
a continuance.
Beginning with Appellant’s first issue, we conclude that his conviction is supported
by legally sufficient evidence. With respect to the second issue, we hold the trial
court abused its discretion by admitting evidence of Cassie’s murder. Because this
error affected Appellant’s substantial rights, we reverse the trial court’s judgment
and remand for a new trial. See, e.g., Veliz v. State, 474 S.W.3d 354, 367-68 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d). We do not reach Appellant’s other
issues on appeal.
I. Sufficiency of the Evidence
In a sufficiency challenge, a reviewing court must determine whether a
rational trier of fact could have found the essential elements of an offense beyond a
1
Appellant raises the sufficiency challenge as the final issue in his brief, but we address
that issue first because, if meritorious, it would afford him greater relief than his other issues. See
Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per curiam) (en banc) (holding
that the court of appeals erred by remanding a case on a claim of ineffective assistance of counsel
without ever addressing a sufficiency challenge, which could have entitled the defendant to a
rendition of judgment).
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reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The offense here was capital murder, which meant that the jury was required
to find the following essential elements: (1) Appellant intentionally murdered
Jimmy, and (2) Appellant committed Jimmy’s murder in the course of committing
Cassie’s kidnapping. See Tex. Penal Code Ann. § 19.03(a)(2). When deciding
whether these elements were proven beyond a reasonable doubt, we consider all of
the evidence in the light most favorable to the jury’s decision. See Robinson v. State,
466 S.W.3d 166, 172 (Tex. Crim. App. 2015).
For the first element of murder, the prosecution had to prove that Appellant
intentionally caused Jimmy’s death. See Tex. Penal Code Ann. § 19.02(b)(1). There
was conclusive evidence that Jimmy died from a single gunshot wound to the face,
but there was no conclusive evidence as to who fired the shot that killed him.
Nevertheless, the jury could have reasonably found that the shot was fired either by
Appellant or his associate Amalinh. The evidence showed that both men entered
Frank’s house at the same time and that a gunshot was heard shortly thereafter. Even
if Amalinh was the actual shooter, Appellant was still charged under the law of
parties, and the jury could have reasonably determined that Appellant at least
encouraged or aided Amalinh in the commission of Jimmy’s murder. See id.
§ 7.02(a)(2) (providing that a person is criminally responsible as a party if the person
encourages or aids another in the commission of an offense); Anderson v. State, 416
S.W.3d 884, 889 (Tex. Crim. App. 2013) (holding that the conviction must be upheld
if the evidence is legally sufficient on any theory authorized by the jury charge). The
jury could have also inferred that the murder was intentional because death is the
natural consequence of a gunshot to the face. See Tex. Penal Code Ann. § 6.03(a).
For the second element of kidnapping, the prosecution had to prove that
Appellant intentionally or knowingly “abducted” Cassie. See id. § 20.03(a). The
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word “abduct” has a statutory definition, meaning “to restrain a person with intent
to prevent [her] liberation by secreting or holding [her] in a place where [she] is not
likely to be found; or using or threatening to use deadly force.” See id. § 20.01(2).
The word “restrain” also has a statutory definition, meaning “to restrict a person’s
movements without consent, so as to interfere substantially with the person’s liberty,
by moving the person from one place to another or by confining the person.” See
id. § 20.01(1).
The evidence showed that Cassie was escorted from Frank’s house into
Linda’s car, with Appellant and Amalinh on either side of her. From this evidence,
the jury could have reasonably determined that Appellant restrained Cassie without
her consent because the escort occurred immediately after Jimmy was shot. See id.
§ 20.01(1)(A) (providing that restraint is “without consent” if it is accomplished by
force, intimidation, or deception). Similarly, the jury could have reasonably
determined that, during Cassie’s restraint, Appellant formed the intent to prevent her
liberation by taking her, with the assistance of Linda, to a place where Cassie was
not likely to be found and by using deadly force against her. See Laster v. State, 275
S.W.3d 512, 521 (Tex. Crim. App. 2009).
Appellant responds that the evidence is insufficient to establish a kidnapping
because Frank affirmatively testified that Cassie appeared “nonchalant” when she
left Frank’s house. Appellant also refers to other testimony that neither he nor
Amalinh were seen with any weapons, and that they did not touch Cassie as they
escorted her from Frank’s house to Linda’s car. Based on this evidence, Appellant
suggests that a rational jury could not make a finding that Cassie was restrained
without her consent.
Appellant has failed to view the evidence in the light most favorable to the
verdict. There was testimony from Monk, who was also present at the scene, that
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Cassie looked “like she was fixing to cry.” Considering the other evidence that
Jimmy had just been shot inside the home where she was staying, the jury could have
reasonably concluded that Appellant and Amalinh used force and intimidation to
restrain Cassie without her consent, even if they did not actually touch her with their
hands.
Appellant contends next that there is insufficient evidence to show that
Cassie’s kidnapping was intentional. Appellant suggests in his brief that the
kidnapping may have just been an “afterthought,” but there was an abundance of
evidence to the contrary. Intent can be inferred from the circumstances, and there
was evidence that Appellant (along with Amalinh and Linda) was searching for
Cassie at her garage apartment and at the house belonging to Jimmy’s parents. When
combined with the other evidence that Cassie had previously been kidnapped earlier
in the week by the same parties, the jury could have reasonably concluded that
Cassie’s subsequent kidnapping was also performed intentionally.
In one last point, Appellant contends that he could not be convicted of capital
murder because there is no evidence that he committed Jimmy’s murder “in the
course of” committing Cassie’s kidnapping, as required by the relevant statute. See
Tex. Penal Code Ann. § 19.03(a)(2). According to Appellant, Jimmy’s murder was
already completed before Cassie’s kidnapping began. This argument overlooks
Frank’s testimony that when he returned to his house after Cassie was escorted away,
he found that Jimmy was still alive and gasping for air, which means that the murder
had not yet been completed. Because of this testimony, the jury could have
reasonably found that Appellant intentionally murdered Jimmy in the course of
committing Cassie’s kidnapping. See Robertson v. State, 871 S.W.2d 701, 705 (Tex.
Crim. App. 1993) (holding that a murder occurs “in the course of” committing
another offense if the murder occurs “in an attempt to commit, during the
7
commission, or in the immediate flight after the attempt or commission of the
offense”); see also Santellan v. State, 939 S.W.2d 155, 163-64 (Tex. Crim. App.
1997) (en banc) (holding that the evidence was sufficient to support a conviction for
capital murder where there was testimony that the defendant restrained and drove
the victim away after the victim was shot in the head but during a time when the
victim “may have still been alive”).
We conclude that the evidence is legally sufficient to support every essential
element of the offense beyond a reasonable doubt.
II. Evidence of Cassie’s Extraneous Murder
In his next issue, Appellant complains about the evidence of Cassie’s
extraneous murder, which was admitted over his timely objection. Specifically,
Appellant asserts (1) this evidence is irrelevant with respect to the charged offense,
and (2) even if relevant, this evidence was substantially outweighed by the danger
of unfair prejudice.
A. The Trial Court Erred by Admitting Evidence of Cassie’s Murder.
We review the trial court’s decision to admit evidence for an abuse of
discretion. See Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). “[T]he
primary purpose of rules of evidence is to narrow the evidence offered at the trial to
those matters which have logical and probative value in determining the guilt or
innocence of the accused. Thus, to the extent that the law of evidence precludes
decisions based on illogical conclusions, it aids the administration of justice.”
Barbara E. Bergman, Nancy Hollander & Theresa M. Duncan, Wharton’s Criminal
Evidence § 1:2 (15th ed.); see also Tex. R. Evid. 102. In furtherance of this
objective, Texas Rule of Evidence 402 prohibits the introduction of irrelevant
evidence. See Tex. R. Evid. 402.
8
Appellant was charged with capital murder of Jimmy; this charge required the
State to prove Appellant both (1) intentionally murdered Jimmy and (2) did so in the
course of committing Cassie’s kidnapping. See Tex. Penal Code Ann. § 19.03(a)(2).
To prove kidnapping, the State had to prove Appellant intentionally or knowingly
abducted Cassie. See id. § 20.03(a). Abduction includes (in relevant part) “using or
threatening to use deadly force.” Id. § 20.01(2). The State did not prove Appellant
killed Cassie; instead, it introduced other pejorative evidence against him (including
evidence tending to prove he used deadly force against Jimmy) that insufficiently
connected him to her death.
Extraneous offenses:
may not be received into evidence unless and until there is a clear
showing that: 1) the evidence of the extraneous offense is material, i.e.,
going to an element of the offense charged in the indictment or
information, 2) the accused participated in the extraneous transaction
being offered into evidence, and 3) the relevancy to a material issue
outweighs its inflammatory or prejudicial potential[.]
McCann v. State, 606 S.W.2d 897, 901 (Tex. Crim. App. [Panel Op.] 1980), holding
modified by Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994) (en banc)
(citing Murphy v. State, 587 S.W.2d 718, 721 (Tex. Crim. App. [Panel Op.] 1979)
and Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. [Panel Op.] 1979)).2 Clear proof
means “proof beyond a reasonable doubt.” Harrell, 884 S.W.2d at 158.3 The State’s
2
Contrary to the dissent’s assertion that we are “start[ing] off on the wrong foot by not
beginning [our] analysis with Rule 404 of the Texas Rules of Evidence,” we instead begin with
binding authority that dictates when extraneous offenses may be received into evidence and need
not go further because our analysis reveals the evidence is not relevant. While we acknowledge
that appellate courts should not superimpose their judgment concerning relevance in all cases (see
generally Montgomery v. State, 810 S.W.2d 372, 390-92 (Tex. Crim. App. 1990) (en banc)), the
test itself requires examining relevance then balancing that determined relevance against “its
inflammatory or prejudicial potential.” We are not tasked with examining properly preserved
relevance objections only to be precluded from reaching a conclusion it is irrelevant as a matter of
law.
3
See also Harrell, 884 S.W.2d at 166 (Clinton, J., concurring) (citing Williams v. State, 41
9
inability to prove Appellant participated in Cassie’s death beyond a reasonable doubt
made the evidence thereof prejudicial and inadmissible. See Miles v. State, 468
S.W.3d 719, 724 (Tex. App.—Houston [14th Dist.] 2015), aff’d on other grounds,
506 S.W.3d 485 (Tex. Crim. App. 2016) (“To determine whether evidence is
relevant in a particular case, courts must ‘examine the purpose for which the
evidence is being introduced.’ . . . There must be a ‘direct or logical connection
between the actual evidence and the proposition sought to be proved.’”) (quoting
Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009)).
Cassie’s death had no logical tendency to make a fact of consequence
concerning her kidnapping more or less probable than it would have been without
her death, particularly because there is no sufficient evidence connecting Appellant
S.W. 645, 648 (Tex. Crim. App. 1897) (“before evidence of an extraneous crime can be offered,
some cogent evidence should be adduced of appellant’s connection therewith . . . .”); Walton v.
State, 55 S.W. 566, 567 (Tex. Crim. App. 1900) (“there should have been some testimony
indicating with a reasonable degree of certainty that appellant was guilty” of the extraneous
offense); Denton v. State, 60 S.W. 670, 672 (Tex. Crim. App. 1901) (same as Walton); Glenn v.
State, 76 S.W. 757, 758 (Tex. Crim. App. 1903) (before evidence of extraneous misconduct can
be admitted, “there must be pertinent testimony tending to show that appellant” is the one who
committed it, citing Williams); Fountain v. State, 241 S.W. 489, 491 (Tex. Crim. App. 1921) (that
accused committed extraneous offense “must be shown . . . with reasonable certainty”); Hooks v.
State, 261 S.W. 1053, 1054-55 (Tex. Crim. App. 1923) (same as Glenn ); Wells v. State, 42 S.W.2d
607, 608 (Tex. Crim. App. 1931) (that accused perpetrated extraneous offense must be
“satisfactorily shown” to justify admissibility); Shepherd v. State, 158 S.W.2d 1010, 1011 (Tex.
Crim. App. 1942) (same as Wells); Clark v. State, 165 S.W.2d 747, 748 (Tex. Crim. App. 1942)
(that accused perpetrated extraneous offense must be “shown”); Carmean v. State, 290 S.W.2d
240 (Tex. Crim. App. 1956) (citing, at one point or another, all of the above); Tomlinson v. State,
422 S.W.2d 474, 474 (Tex. Crim. App. 1967) (State must be “prepared to prove that the accused
committed” extraneous misconduct); Landers v. State, 519 S.W.2d 115, 118 (Tex. Crim. App.
1974) (quoting 23 Tex. Jur. 2d, Evidence, § 194, at pg. 294, for the proposition that the accused
must be “shown to have been [the] perpetrator” of an extraneous offense before it can be admitted);
Fentis v. State, 528 S.W.2d 590, 592 (Tex. Crim. App. 1975) (that accused committed extraneous
misconduct “must be shown with some degree of certainty before evidence of [it] can come in”);
Tippins v. State, 530 S.W.2d 110, 111 (Tex. Crim. App. 1975) (before the State may introduce
evidence of extraneous misconduct, it must be “prepared to clearly prove that the accused
committed” it); Eanes v. State, 546 S.W.2d 312, 315 (Tex. Crim. App. 1977) (echoing Tomlinson
and Landers)).
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thereto. See Tex. R. Evid. 401; see also Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990) (en banc) (“Where the appellate court can say with
confidence that by no reasonable perception of common experience can it be
concluded that proffered evidence has a tendency to make the existence of a fact of
consequence more or less probable than it would otherwise be, then it can be said
the trial court abused its discretion to admit that evidence.”). Legally sufficient proof
of Cassie’s kidnapping was introduced via Frank’s testimony that (1) he heard a loud
sound that resembled a gunshot come from his home; (2) he saw Cassie being
escorted out of the house between Appellant and Amalinh into the backseat of
another car before it drove away; and (3) he then went into his home and saw Jimmy
dying from a gunshot wound. The trial court abused its discretion when it overruled
Appellant’s objection under Texas Rule of Evidence 402 to the
introduction/admission of evidence of Cassie’s death.
While it is easy to imagine a connection between Appellant’s conduct and
Cassie’s violent death, such ease is the precise reason for our well-established
prohibition against introducing irrelevant evidence. See Bergman, Hollander &
Duncan, Wharton’s Criminal Evidence § 1:2 (“These rules of exclusion stem from
the concern that the jury would not be able to consider the evidence only for the
purpose for which it is properly admitted.”); see also Montgomery, 810 S.W.2d at
391 (“Moreover, when it is clear to the appellate court that what was perceived by
the trial court as common experience is really no more than the operation of a
common prejudice, not borne out in reason, the trial court has abused its discretion.
In either event the appellate court should recognize that the trial court erred to admit
the proffered evidence, and proceed to determine harmfulness under Tex. R. App.
Pro., Rule 81(b)(2).”).
Because Cassie’s death was irrelevant, it had no probative value; because
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Cassie’s death involved violence and insufficient facts tending to prove Appellant’s
culpability, it was inherently prejudicial. This prejudice was unfair and substantially
outweighed the non-existent probative value of Cassie’s death relative to the charge
alleged and the elements thereof. The dissent opines that “the danger of unfair
prejudice was low”; we disagree and believe it was especially high, particularly
given the insufficiency of the evidence of legal culpability for Cassie’s death.
Therefore, the trial court abused its discretion when it overruled Appellant’s
objection under Texas Rule of Evidence 403. See Montgomery, 810 S.W.2d at 389
(“Once this objection is made, the trial court is called upon to weigh probativeness
of the evidence against its potential for ‘unfair’ prejudice — that is, as the majority
iterated on original submission, its ‘tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’”) (citing Advisory
Committee’s Note to Fed. R. Evid. 403); see also id. (“Indeed, the Fifth Circuit has
commented that it reads the rule ‘to require exclusion when prejudice outweighs
probative value.’”) (emphasis in original) (citing United States v. Preston, 608 F.2d
626, 639 n.16 (5th Cir. 1979)).
The dissent cites Rogers v. State, 853 S.W.2d 29, 32-33 (Tex. Crim. App.
1993) (en banc), for the proposition that “a reviewing court should not superimpose
its own judgment over the judgment of the trial court when deciding whether
extraneous-offense evidence is relevant”; we do not believe Rogers stands for the
proposition cited. There, the Texas Court of Criminal Appeals (while examining a
comparable question concerning relevancy relative to 404(b)) said:
While this Court is not necessarily convinced of the relevancy of
the marijuana evidence under that argument, we will not
“superimpose [our] own judgment as to relevance over that of
the trial court.”
Id. at 32 (quoting Montgomery, 810 S.W.2d at 390).
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In our view, the Court’s language in Rogers reveals that it refrained from
imposing its judgment in that case; the Court did not say that (1) it could not
superimpose its judgment of relevancy on the trial court or (2) Montgomery held (or
even implied) otherwise. Indeed, in Montgomery, the Court simply says,
To the extent it suggests that an appellate court may always
superimpose its own judgment as to relevance over that of the
trial court, we reject this approach.
Montgomery, 810 S.W.3d at 391.
Therefore, we believe the dissent relies upon Rogers for a proposition that is
not present therein.
B. This Error Affected Appellant’s Substantial Rights.
Generally, the erroneous admission of evidence is non-constitutional error
that we analyze for harm under Texas Rule of Appellate Procedure 44.2(b). See Tex.
R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Rule 44.2(b) provides that an appellate court must disregard a non-constitutional
error that does not affect a criminal defendant’s “substantial rights”. 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. Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010). Non-constitutional error is harmless if
the improperly admitted evidence did not influence the jury or had but a slight effect
upon its deliberations. Id. “If the reviewing court is unsure whether the error
affected the outcome, that court should treat the error as harmful.” Fox v. State, 283
S.W.3d 85, 95 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
In performing this analysis, we examine the entire trial record and calculate,
as much as possible, the probable impact of the error upon the rest of the evidence.
Id.; see also Torres v. State, 424 S.W.3d 245, 260 (Tex. App.—Houston [14th Dist.]
13
2014, pet. ref’d). We analyze “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.” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). We also
consider “overwhelming evidence supporting the particular issue to which the
erroneously admitted evidence was directed, but that is only one factor in our harm
analysis.” Torres, 424 S.W.3d at 260. The burden to demonstrate whether the
appellant was harmed by a trial court error does not rest on either the appellant or
the State. Coble, 330 S.W.3d at 280.
Here, we conclude the erroneous admission of evidence of Cassie’s murder
affected Appellant’s substantial rights. The jury charge at the end of the
guilt/innocence phase provided the jurors with six options for their verdict: not
guilty; guilty of capital murder; guilty of murder; guilty of felony murder; guilty of
aggravated kidnapping; and guilty of kidnapping. The jury found Appellant guilty
of capital murder, and immediately thereafter the trial court sentenced Appellant to
life without parole. Multiple times throughout the five-day trial, the State referenced
Cassie’s death and manner of death, and introduced photographs into evidence of
her dead body in connection with the kidnapping. Because the State so heavily relied
upon Cassie’s death throughout its case against Appellant, we cannot separate the
potential harm of those statements from what the jury may have believed about
Appellant’s involvement in the State’s case for kidnapping Cassie and murdering
her boyfriend. See, e.g., Jackson v. State, 320 S.W.3d 873, 887-890 (Tex. App.—
Texarkana 2010, pet. ref’d) (at the defendant’s trial for capital murder, erroneous
admission of evidence that the defendant committed a separate robbery was harmful
error); Booker v. State, 103 S.W.3d 521, 537-540 (Tex. App.—Fort Worth 2003, pet.
ref’d) (at the defendant’s trial for aggravated robbery, erroneous admission of
14
evidence that defendant committed aggravated kidnapping and aggravated assault as
part of the same incident gave rise to harmful error).
Extraneous offense evidence can have a significant impact on the jury’s
rational disposition towards other evidence because of the jury’s natural inclination
to infer guilt to the charged offense from the extraneous offenses. See Abdnor v.
State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (en banc); Mayes v. State, 816
S.W.2d 79, 86 (Tex. Crim. App. 1991) (en banc). And we cannot speculate what
verdict the jurors might have decided upon without evidence of this extraneous act;
it is entirely possible that they would have come to the same verdict without the
improperly admitted extraneous evidence. But it is also possible that they would
have decided upon a different verdict. This uncertainty renders the trial court’s
admission of evidence of Cassie’s murder harmful error. See Fox, 283 S.W.3d at 95
Moreover, because the other offenses included in the jury charge carried sentences
less than the life without parole sentence imposed on Appellant herein,4 we find the
erroneous admission of this extraneous evidence to have been harmful.
CONCLUSION
We reverse the trial court’s judgment and remand for a new trial.
4
Specifically, the other offenses included in the jury charge carried the following
punishments: murder, felony murder, and aggravated kidnapping, as first-degree felonies, carried
punishment ranges of five to 99 years’ imprisonment. See Tex. Penal Code Ann. §§ 12.32, 19.02,
20.04. Kidnapping, as a third-degree felony, carries a punishment ranged of two to ten years’
imprisonment. Id. §§ 12.34, 20.03.
15
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Bourliot, and Hassan (Christopher, J.,
dissenting).
Publish — Tex. R. App. P. 47.2(b).
16