Opinion
No. 04-05-00834-CR
Delivered and Filed: September 5, 2007.
Appeal from the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CR-0216, Honorable Sid L. Harle, Judge Presiding.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
OPINION
REVERSED AND REMANDED
Appellant Robert Fischer was convicted by a jury of the murder of Edith Camp and sentenced to ninety-nine years imprisonment. Fischer presents three issues for review: (1) improper admission of extraneous offense evidence regarding the theft of a firearm; (2) factual insufficiency of the evidence; and (3) improper admission of hearsay evidence. Because we find the trial court erred in admitting the evidence regarding the theft of the firearm based on the proffer presented to the trial court, we reverse the trial court's judgment and remand the cause to the trial court for a new trial.
We do not address Fischer's remaining issues because they are not necessary to the final disposition of this appeal. See Tex. R. App. P. 47.1.
Factual Background
On May 26, 2003, sixty-nine year-old Edith Camp was in her home when she was killed by a shot to the back of her head. Based on the evidence at the crime scene, the officers surmised the assailant probably knew Mrs. Camp, the layout of her house, which drawers to search and where Mrs. Camp kept valuables and cash. The assailant covered Mrs. Camp's face with a towel as if disturbed by the image of Mrs. Camp's wounded head and lifeless eyes. The assailant removed a five-carat diamond ring from Mrs. Camp's finger with a pair of pliers and removed her deceased husband's gold "dog tag" from around her neck. Ballistics tests showed a distinctive firing pattern consistent with that of a .22 caliber Cricket Keystone rifle. Neither the murder weapon nor items taken from the residence were recovered.
The State's case was based entirely on circumstantial evidence. Several months before the murder, Mrs. Camp was apparently upset with Fischer, her nephew, and told a friend that she intended not to provide Fischer with any further financial support. A few days prior to the murder, Mrs. Camp stated that Fischer "gave her the creeps." Two weeks after the murder, a .22 caliber Cricket rifle was discovered missing from the Boerne Wal-Mart where Fischer was a support manager. Ed Love, Jr., a firearms examiner with the Bexar County Crime Lab, subjected a Cricket rifle, with the serial number immediately following that of the stolen firearm, to ballistics tests. Love testified that the slug recovered from the scene of the murder was fired from a Cricket rifle identical or very nearly identical to the rifle taken from Wal-Mart. In an attempt to link Fischer to the murder, the State presented evidence suggesting that Fischer stole the .22 Cricket rifle from the Boerne Wal-Mart as part of his plan to murder Mrs. Camp.
Admission of Extraneous Offense Evidence
Fischer argues the trial court erred in admitting the evidence relating to the theft of the Cricket rifle from Wal-Mart. The State made an oral proffer to the trial court of the extraneous theft evidence it intended to introduce. Fischer objected to the admission of the extraneous offense on the grounds of relevance, that its probative value was outweighed by its unfair prejudice, and that the evidence was insufficient to support its admission as an extraneous offense. The trial court overruled Fischer's objections, and testimony regarding the theft was admitted during the guilt-innocence phase of trial.
1. Standard of Review
"A trial court's actions as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard." Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). As long as the trial court's ruling is within the "zone of reasonable disagreement" and is not arbitrary or unreasonable, there is no abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996).
2. Analysis
The trial court is deemed the authority on the threshold issue of the admissibility of extraneous offense evidence. See Mitchell, 931 S.W.2d at 953; Harrell v. State, 884 S.W.2d 154, 160-61 (Tex.Crim.App. 1994). Extraneous offense evidence is admissible if the trial court determines: (1) the evidence is relevant apart from character conformity; and (2) the jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. See Harrell, 884 S.W.2d at 163. Proof of a culpable connection between the accused and the extraneous offense is an essential pre-condition to establishing the relevance of the extraneous offense. Id. at 157. Thus, if Fischer was not involved in the theft of the gun, the theft does not make it any more probable that he committed the murder. Texas Rule of Evidence 104 governs the admissibility of evidence that is not relevant unless other connecting facts are proven. Tex. R. Evid. 104(b). In accordance with rule 104(b), the trial court must make the initial determination of a culpable connection between the party and the offense from the evidence presented through the proffer.
Texas Rule of Evidence 104(b) provides:
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Much like Harrell, the conditional fact that the trial court was required to determine in this case was whether Fischer committed the theft of the firearm. Harrell, 884 S.W.2d at 160. In making its determination, the trial court must find that a jury could reasonably find beyond a reasonable doubt that Fischer committed the offense. Id. at 161. If he committed the offense, the evidence is relevant and admissible assuming it complies with rules of evidence 401, 403 and 404(b). Tex. R. Evid. 401, 403 and 404(b); Harrell, 884 S.W.2d at 160. If Fischer did not commit the theft, the evidence is irrelevant and is therefore inadmissible under rule 402. Tex. R. Evid. 402; Harrell, 884 S.W.2d at 160.
In this appeal, Fischer concedes that the evidence of the theft is not purely character evidence but is relevant as to plan or motive and that the evidence is not overly prejudicial. The only challenge Fischer makes with regard to the evidence is that the trial court abused its discretion in admitting the evidence because, prior to the admission of the evidence, there was insufficient proof for the trial court to determine that a jury could reasonably find beyond a reasonable doubt that he committed the extraneous offense. See Tex. R. Evid. 104(b); 402. Fischer emphasizes in his reply brief that he is only challenging "the question of threshold admissibility" and not "whether the jury could have found the extraneous offense was committed beyond a reasonable doubt considering all the evidence adduced at trial." (emphasis in original).
During Fischer's pretrial motion in limine, the trial court elected, and the parties agreed, to address the admissibility of the evidence to be adduced during trial under Rule 404(b) by oral proffer. Tex. R. Evid. 404(b); see Arzaga v. State, 86 S.W.3d 767, 781 (Tex.App.-El Paso 2002, no pet.) (noting trial court can satisfy its responsibility to make initial determination that jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense by oral or written proffer). The State's proffer included the details of the investigation into the nature of the murder weapon. During the investigation, a Cricket rifle, which was a small child's rifle, was discovered missing from the Wal-Mart where Fischer worked as a support manager. The only people with access to the gun locker were management, "of which there [were] between nine and fourteen keys." Ballistics comparisons of bullets from a Cricket rifle with the serial number directly after the serial number of the Cricket rifle missing from the Wal-Mart would establish that the slug recovered from the crime scene was fired from the missing rifle. Fischer was seen at the gun locker a couple of weeks before the murder and mentioned that Wal-Mart was selling a small child's rifle. The State conceded that they could not "pin down the exact time" that Fisher mentioned the rifle other than "sometime during that time."
In order to be properly admitted, the trial court had to determine that a jury could reasonably find beyond a reasonable doubt from the foregoing proffer that Fischer unlawfully appropriated the Cricket rifle with an intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (Vernon 2003). From the proffer, the only link between Fischer and the theft is that he was one of possibly fourteen managers with a key to the gun locker and that he mentioned "sometime during that time" that Wal-Mart was selling a small child's rifle. Absent from the proffer were any statements establishing a motive for the theft, or Fischer's identity as the thief, such as the evidence later introduced at trial establishing the familial relationship between Fischer and Mrs. Camp and the fact Mrs. Camp was likely killed by a relative or someone who knew her. See Pesina v. State, 949 S.W.2d 374, 381 (Tex.App. — San Antonio 1997, no pet.) (noting importance of showing of relationship between appellant and victim in circumstantial evidence case). The proffer was made before opening statements and any presentation of evidence, and was only preceded by voir dire in which both the trial court and the prosecutor acknowledged that no statements regarding the facts of the case could be made. Although the proffer may well have identified Fischer as one of several possible suspects in the theft of the gun, the proffer falls short of a clear showing that Fischer actually committed the offense. See Harrell, 884 S.W.2d at 161. Based solely on the proffer presented to the trial court, the trial court abused its discretion in determining that a jury could reasonably find beyond a reasonable doubt that Fischer committed the theft.
The dissent cites Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990), as support that the proffer connects Fischer to the missing gun. Yet Harrell requires the trial court to find that the jury could conclude beyond a reasonable doubt that the accused committed the extraneous act under rule 104(b). Tex. R. Evid. 104(b), 402; Harrell, 884 S.W.2d at 160. As noted in Harrell, " Montgomery is distinguishable because it does not concern quantum of proof, and nothing in Montgomery abolishes the requirement of a quantum of proof regarding extraneous offenses." Id. at 161 n. 14.
Based strictly on the proffer, it was just as likely that any of the other managers, with access to the gun locker, stole the gun.
3. Harm Analysis
Having determined that the trial court erred in admitting evidence of the extraneous offense, we must determine whether the record establishes that Fischer was harmed by its admission. The erroneous admission of an extraneous offense is not constitutional error. Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.-San Antonio 2000, no pet.). We disregard a non-constitutional error unless it affects a substantial right. Tex. R. App. P. 44.2(b).
An error affects a substantial right when the error has a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); Russell v. State, 113 S.W.3d 530, 549 (Tex.App.-Fort Worth 2003, pet. ref'd). We must consider the trial court's erroneous admission of the extraneous offense evidence in the context of the entire record and not just whether there was sufficient or overwhelming evidence of the defendant's guilt. Motilla v. State, 78 S.W.3d 352, 357-58 (Tex.Crim.App. 2002); Russell, 113 S.W.3d at 550. We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989); McQuarters v. State, 58 S.W.3d 250, 258 (Tex.App.-Fort Worth 2001, pet. ref'd). We do not focus upon the propriety of the outcome but on the integrity of the process leading to the conviction and determine if the error disrupted the jury's evaluation of the evidence. Harris, 790 S.W.3d at 587-88; Russell, 113 S.W.3d at 550.
In this case, significant time was devoted at trial to developing the evidence surrounding the theft of the Cricket rifle from the Wal-Mart. More importantly, the theft of the rifle is the only evidence linking Fischer to the murder weapon. Absent the evidence of the theft, the other evidence did not establish that Fischer was any more of a suspect than any of Mrs. Camp's other family members and friends who had knowledge of her house and where she kept her money and other valuables. Furthermore, the State relied heavily on the evidence of the theft during closing argument. Accordingly, the erroneous admission of the evidence disrupted the jury's orderly evaluation of the evidence. Having considered the record as a whole, we conclude that the erroneous admission of the extraneous offense evidence had a substantial and injurious effect or influence on the jury's verdict thereby affecting Fischer's substantial rights.
Conclusion
The trial court's judgment is reversed, and the cause is remanded to the trial court for a new trial.
I disagree with the majority's conclusion that the trial court's admission of the extraneous offense evidence, i.e., the rifle theft, during the guilt/innocence phase was an abuse of discretion. As noted by the majority, Fischer only challenges "the question of threshold admissibility" that the trial court made under Rule 104(b). Tex. R. Evid. 104(b) (providing that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to[,] the introduction of evidence sufficient to support a finding of the fulfillment of the condition"). Specifically, Fischer maintains the trial court should not have admitted evidence of the rifle theft because "no reasonable fact finder" could conclude beyond a reasonable doubt that Fischer had stolen the missing Cricket rifle from the Wal-Mart at which he worked based solely on the State's proffer.
In 1994, our Court of Criminal Appeals held that before a trial court could admit evidence of an extraneous offense during the guilt/innocence phase of trial, "the trial court must, under rule 104(b), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994) (stating that "the proper quantum of proof" to be used by the trial court in determining the admissibility of extraneous offense evidence is the same as that used by the jury — i.e., beyond a reasonable doubt, rather than a "clear showing" or a preponderance of the evidence). This principle was refined in Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996), a case involving the admission of extraneous offense evidence during the punishment phase of trial, in which the court clarified the different functions of the judge and jury with respect to extraneous offense evidence. "Consequently, we find that the trial court is deemed the authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial, while the jury, as the `exclusive judge of the facts,' i.e. finder of fact, determines whether or not the burden of proof for those offenses presented has been satisfied by the party offering the evidence." Id. at 953 .
The majority opinion relies on several punishment phase cases dealing with admissibility of extraneous offense evidence. We note, as the Court of Criminal Appeals has noted, that while the standard of proof for extraneous offenses is the same for both phases of trial, i.e., beyond a reasonable doubt, the relevancy of the extraneous offense evidence serves a different purpose in each phase of trial. Mitchell, 931 S.W.2d at 954 (stating that while ". . . the use of extraneous offenses during the punishment phase should be analogous to that of the guilt/innocence phase of a trial regarding burden of proof [,] [t]he use of evidence of extraneous offenses during the guilt/innocence phase is used to prove `motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident'[,] [while] [d]uring the punishment phase, evidence of an extraneous offense is offered to assist the trial court or the jury in determining punishment").
In reviewing a trial court's decision to admit evidence of an extraneous offense, it is well established that we apply an abuse of discretion standard. See Harrell, 884 S.W.2d at 161 n. 14 (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)) (op. on rehearing); see also Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002). In fact, the Montgomery court spoke at length when establishing the guidelines for reviewing a trial court's ruling on Rule 404(b) evidence:
. . . appellate courts uphold the trial court's ruling on appeal absent an `abuse of discretion.' That is to say, as long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. The trial court's ruling is not, however, unreviewable. 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. 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.
Montgomery, 810 S.W.2d at 391. Accordingly, as long as the trial court's ruling is within the "zone of reasonable disagreement" and is not arbitrary or unreasonable, there is no abuse of discretion and the trial court's ruling should be upheld. Id.
Here, the State and Fischer made an oral proffer of essentially stipulated evidence concerning the rifle theft outside the presence of the jury prior to opening statements. The record reveals the following facts were before the trial court at the time of its ruling on the admissibility of the extraneous offense evidence:
(1) A .22 caliber "Cricket" rifle was missing from the Wal-Mart at which Fischer worked;
(2) The rifle was removed from the store inventory sometime between May 20 and June 4, 2003 (the decedent was murdered on May 26, 2003);
(3) A .22 caliber rifle bullet was used to cause the death of the victim, and that bullet was impressed with a rifle barrel with a right hand twist and "twelve lands and grooves;"
(4) No .22 caliber rifle in the State's firearm database fit this pattern; and the .22 caliber Cricket rifle missing from the Wal-Mart was not in the State's database;
(5) The rifle with the serial number next in the series to that of the missing Cricket rifle was located in a Wal-Mart in Florida, and upon test firing made the same impression on the bullet as the murder weapon made on the bullet that killed the victim;
(6) To the State's firearm expert's knowledge, the only kind of gun that could have been used to kill the victim was a Cricket .22 caliber rifle;
(7) The only people with access to the rifles at Wal-Mart were the managers and there existed between nine and fourteen keys to the gun locker;
(8) Fischer had a key and had access to the gun locker as an associate manager; and
(9) Fischer was seen opening the gun locker "some time" before the murder and mentioned at the time that he knew there was a "small child's rifle" being sold by Wal-Mart.
The parties agree that the .22 caliber Cricket rifle is a "small child's rifle."
At the hearing, Fischer objected to the admission of evidence related to the stolen Cricket rifle on the basis that it was not relevant and was unfairly prejudicial because "no one puts the rifle in Mr. Fischer's hand," "we don't know that he's the one that took it," and "we don't know when it was taken." In making its ruling, the trial judge stated, "[s]o we're doing this based upon what his [the prosecutor's] good faith belief of the evidence is. If at some point during this trial it turns out that's not the case . . . then you have an appropriate remedy . . . But at this point . . . under the 404(b) proffer, I'll admit it on the case in chief, finding that the probative outweighs the prejudicial." When defense counsel questioned whether the court was also determining that "the extraneous offense is admissible beyond a reasonable doubt," the judge replied, "[a]t this time I'm going to say that based on the proffer. Now, once again, I've left you your outlet on that, depending on what the testimony reveals." Thus, the record confirms that the trial court made a threshold decision under Rule 104(b) to admit the extraneous offense evidence dependent on the fulfillment of a condition of fact, i.e., that the State prove that Fischer committed the theft of the rifle. See Tex. R. Evid. 104(b); see Harrell, 884 S.W.2d at 160 (stating that in that case the "conditional fact" was whether the appellant committed the extraneous offenses depicted in the state's exhibit, and stating that, "[i]f appellant committed the extraneous offense, the evidence is relevant and admissible, provided it is not too prejudicial and is offered for a proper purpose . . . [h]owever, if appellant did not commit the extraneous offense[s], the evidence is irrelevant and therefore inadmissible").
During trial, the evidence concerning the theft of the rifle was admitted through several different witnesses's testimony. There was no further objection by Fischer during trial, or through motion for directed verdict, raising the State's purported failure to prove that he committed the rifle theft.
We further note that Fischer is not challenging the legal sufficiency of the evidence to support his murder conviction.
On appeal, Fischer now concedes the evidence of the rifle theft is probative of "preparation or plan" and is not "unfairly prejudicial." See Tex. R. Evid. 404(b), 403; see also Montgomery, 810 S.W.2d at 387 (extraneous offense evidence that meets permissible purposes of Rule 404(b) is "relevant" beyond tendency to show character conformity and is therefore admissible subject only to a Rule 403 analysis). However, Fischer stills maintains the State's proffer lacked the necessary "threshold quantum of proof" for admissibility before the jury. He argues the only evidence the State produced at the proffer with respect to the missing Cricket rifle was the fact that it was "missing from the Wal-Mart store inventory near the time of the murder, Mr. Fischer worked at the store, was one of approximately sixteen [sic] managers who had a key to the store gun bunker, and a fellow employee recalled that he once had mentioned or expressed interest in that particular gun." Fischer maintains, and the majority apparently agrees, that based on this "scant evidence," no reasonable fact finder could conclude beyond a reasonable doubt that he had stolen that firearm, and that it was thus error for the court to admit it into evidence. After applying the abuse of discretion standard of review to the trial court's threshold determination as to the admissibility of the evidence, I respectfully disagree.
The dispositive issue appears to be the proper interplay between Harrell's mandate that the trial court must make an "initial determination" that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense, and an appellate court's mandate to review a trial court's decision to admit such evidence under an abuse of discretion standard. See Harrell, 884 S.W.2d at 160-61, n. 14 (emphasis added). My reading of Harrell and Mitchell, and the subsequent cases applying them, is that the trial judge, in ruling on the admissibility of the extraneous offense evidence, does not engage in a weighing of the evidence, which is the jury's sole province, but only makes a threshold determination of relevance, i.e., whether a reasonable fact finder could find the defendant committed the extraneous offense beyond a reasonable doubt. See Harrell, 884 S.W.2d at 159-60 (contrasting the trial court's duty under Rule 104(a) to make a "preliminary finding" of fact, with its duty under Rule 104(b) to make an "`initial determination' as to the relevancy of the evidence, dependent `upon the fulfillment of a condition of fact'"); see also Mitchell, 931 S.W.2d at 956 (Clinton, J., concurring) (characterizing Harrell as "acknowledg[ing] that proof of a defendant's culpability for an extraneous crime is not a preliminary question of fact to be resolved by the trial judge under Rule 104(a), but is a condition of relevancy to be resolved by the jury under Rule 104(b)").
In turn, on appeal of the trial court's ruling under Rule104(b), we as a reviewing court do not engage in a re-weighing of the evidence in a type of sufficiency analysis, but rather we consider only whether the trial court's ruling falls outside the zone of reasonable disagreement, i.e., whether its ruling was arbitrary and without reference to guiding principles. The majority, while stating that it is applying an abuse of discretion standard, actually engages in an improper sufficiency type of review, re-weighing the strength of the State's proffer and superimposing its own judgment as to relevance over that of the trial court. See Montgomery, 810 S.W.2d at 390-91 (rejecting suggestion that appellate court may substitute its own judgment for that of trial court as to relevance).
As previously stated, the trial court did apply the correct guiding principle in making its threshold ruling as to relevance under Rule 104(b). We now examine the State's proffer only to determine whether the court's decision to admit the evidence was arbitrary or capricious. See Montgomery, 810 S.W.2d at 391. Here, the State proffered circumstantial evidence that Fischer planned and carried out the theft of the Cricket rifle in order to gain possession of the firearm to commit the charged murder. Included within the proffer was evidence that the missing Cricket rifle was taken at or near the time of the murder, and in fact matched the weapon used to commit the murder. The proffer further establishes that the missing Cricket rifle was kept inside a locked gun locker at Wal-Mart; therefore, only a limited group of people would have had access to the murder weapon. In addition, the proffer showed that, in his capacity as a support manager at the Wal-Mart, Fischer had a key to the gun locker, and thus he had access to the locker and had the opportunity to steal the rifle. Finally, based on his own comments to a witness during the period of time in which the State believed the weapon was stolen, Fischer had personal knowledge of the Cricket rifle's existence and expressed an interest in it before the murder.
Although the proffer does not directly place the missing rifle in Fischer's hands, the proffer certainly connects Fischer to the missing gun, and, as such, supports the trial court's threshold determination that the evidence was relevant and admissible under Rule 104(b). See Montgomery, 810 S.W.2d at 391 (discussing relevance criteria for admission of Rule 404(b) evidence). The State's proffer contains circumstantial evidence upon which a rational jury could find beyond a reasonable doubt that Fischer unlawfully appropriated the Cricket rifle with intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2006). Applying an abuse of discretion standard as we must, I cannot conclude that the trial court's threshold decision to admit the evidence of the rifle theft was arbitrary or unreasonable, or falls outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Therefore, I would hold the court did not err in admitting the evidence.
I also question the majority's harm analysis in light of Rowell v. State, No. 01-97-01227-CR, 1999 WL 11737, at *2 (Tex.App. — Houston [1st Dist.] Jan. 14, 1999, pet. ref'd) (not designated for publication) (holding erroneous admission of extraneous offense evidence is harmless where evidence is later admitted clearly linking defendant to commission of extraneous offense).
Phylis J. Speedlin, Justice
PUBLISH