Opinion
03-21-00537-CR
08-10-2023
Willis Everett Washington, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. FR82323, THE HONORABLE STEVEN J. DUSKIE, JUDGE PRESIDING.
Before Baker, Kelly, and Theofanis, Justices.
MEMORANDUM OPINION
Chari L. Kelly, Justice.
A jury convicted Willis Everett Washington of the first-degree felony of murder for killing his wife, Latonya Washington, and assessed his punishment at life in prison and a fine of $4,720.20. See Tex. Penal Code §§ 12.32, 19.02. The trial court rendered judgment in accordance with the verdict. Washington now appeals the judgment, raising three issues: (1) improper admission of testimony over a Rule 403 objection, (2) Brady and Michael Morton Act violationsarising out of late notice of a witness's statements, and (3) refusing to instruct the jury on "sudden passion." We affirm.
Because the appellant and victim share a surname, we refer to the appellant as "Washington" and to the victim as "Latonya."
See generally Brady v. Maryland, 373 U.S. 83 (1963); Act of May 14, 2013, 83d Leg., R.S., ch. 49, §§ 1-2, 2013 Tex. Gen. Laws 106, 106-08 (codified as amended at Tex. Code Crim. Proc. art. 39.14); see Ex parte Lozoya, 666 S.W.3d 618, 623 n.7 (Tex. Crim. App. 2023) (equating Act with Article 39.14).
BACKGROUND
Three years before she was killed, Latonya began an extramarital affair. And Washington learned about it about a month before she died. As a result, he kicked Latonya, their children, and their grandchild out of their home for about a week. While they all eventually returned to the home, things were tense in the following two to three weeks. In the days before her death there had been several arguments between Washington and Latonya, including yelling and door-slamming. Washington assaulted Latonya with a belt and a BB gun as punishment for the affair.
Latonya and Washington's relationship had been rocky and violent well before this point. Once, Washington cut the power and "doused the house with gasoline while everybody" was inside. He threw gasoline on Latonya and threatened to kill everyone by burning the house down. Another time, he threw a flaming "rag or cup" at Latonya in their car. Other times he had also threatened her with a sword and kitchen knives, held a knife to her neck, and threatened her with a gun more than once. In addition to the violent behavior, Washington also had several extramarital affairs, one of which produced a child.
The day that Latonya died included much of the family watching a movie together and a family meeting. During the meeting, Washington pulled out a gun and said that he would kill himself, and the Washingtons' children began crying. Later, he asked Latonya to go with him to their room to have a conversation. The two had sex, but more arguing could be heard from outside their room. Eventually, a gunshot rang out and was followed by the sound of Latonya's body falling. Washington came out of the room, talked with one of his daughters, began packing clothes and a TV, and got rid of the gun. Latonya was found dead on the floor of the couple's bathroom "kind of in a praying position" with a head wound and "a good pool of blood coming from her head."
Washington was indicted for murder. A jury heard the case and convicted him. He now appeals.
ADMISSION OF EVIDENCE-RULE 403
In his first issue, Washington maintains that the trial court should have excluded testimony by one of the Washingtons' daughters about extraneous bad acts committed by Washington, under Rule of Evidence 403. The daughter testified over the Rule 403 objection that roughly two weeks before Latonya was killed, (a) Washington shot Latonya with a BB gun because he was upset that she had had an affair; (b) Washington whipped Latonya with a belt, resulting in welts on her legs and which Washington explained as Latonya's both needing "to pay" for "mess[ing] up" and being "treated like a child" because she had "act[ed] like a child"; and (c) the daughter overheard sounds of Washington and Latonya having sex in their bedroom but at the same time also overheard Latonya crying and asking him to stop. We review a challenge to an admission of evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
Washington's appellate brief also states an evidence-admission issue based on relevance but does not identify when Washington preserved any relevance complaint before the trial court. We have reviewed the relevant portion of the record and see nothing to preserve a relevance complaint, so the complaint is forfeited. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) ("We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.").
The daughter explained that her room in the home shares a wall with her parents' bedroom.
Under Rule 403, if the probative value of relevant evidence is substantially outweighed by certain dangers, then the evidence is inadmissible. Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018). The dangers include "unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial." Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). The rule calls for a balancing test, under which the analysis includes, but need not be limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for it. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). Probative value is "the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation- coupled with the proponent's need for that item of evidence." Davis, 329 S.W.3d at 806. The balancing test "is always slanted" in favor of admissibility. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
Under the first factor, evidence of motive tends to be highly probative evidence in the State's favor. See Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995), abrogated in part on other grounds, Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); Atnipp v. State, 517 S.W.3d 379, 394 (Tex. App.-Eastland 2017, pet. ref'd). So it was here with the evidence of shooting with the BB gun, whipping with the belt, and sounds suggesting a sexual assault. Those extraneous bad acts tend to show a motive by Washington to hurt or to punish Latonya because of her affair, which reasonably supports a motive also to commit the offense charged. See Brock v. State, 275 S.W.3d 586, 589-90 (Tex. App.-Amarillo 2008, pet. ref'd); Page v. State, 819 S.W.2d 883, 887 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd). The first factor favors admission.
Under the second factor, two circumstances lead us to conclude that this factor weighed in favor of admission: the trial court's limiting instruction and that the testimony was not complex and addressed self-contained acts. See Brickley v. State, 623 S.W.3d 68, 81-82 (Tex. App.-Austin 2021, pet. ref'd) (reviewing these two circumstances in Rule 403 second-factor analysis). The jury charge here included an instruction on extraneous-bad-act evidence:
This evidence was admitted only for the purpose of assisting you, if it does, for the purpose of showing the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if any. You cannot consider the testimony unless you find and believe beyond a reasonable doubt that the defendant committed these acts, if any, were committed [sic].
We have also reviewed the record of the testimony at issue and consider it not to be complex and to have addressed self-contained acts. These circumstances make this second factor favor admission. See id.
Under the third factor, several circumstances support admission. The daughter's testimony on the objected-to topics did not take an inordinate amount of time. It did not repeat evidence that had been admitted. And although the guilt-innocence phase occurred over three days and its record is hundreds of pages long, the daughter's testimony on these topics lasts for only nine pages. All these circumstances lead us to conclude that this third factor favors admission. See Robisheaux v. State, 483 S.W.3d 205, 221 (Tex. App.-Austin 2016, pet. ref'd) (reviewing same circumstances in Rule 403 third-factor analysis).
Under the final factor, our analysis is guided by three questions: "Does the proponent have other available evidence to establish the fact of consequence that the [evidence] is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute?" Erazo v. State, 144 S.W.3d 487, 495-96 (Tex. Crim. App. 2004) (quoting Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh'g)). The answer to the last question is "yes," with the fact of consequence being Washington's motive to commit the charged offense. The extraneous-act evidence by showing motive "provides a 'backstory' for the murder," and because the State lacked an eyewitness who could say which of the two people in the room pulled the trigger of the gun that killed Latonya, the State needed the extraneous-act evidence to at least some degree. See Colone, 573 S.W.3d at 267-68. Under the other two questions, the record is unclear about whether anyone else could have testified about Washington's motive to kill Latonya. At best for Washington then, this fourth factor weighs neither in favor of admission nor against it.
Under all the factors together-three favoring admission and the fourth, at best for Washington, neutral-we hold that the trial court did not abuse its discretion by admitting the testimony over the Rule 403 objection. We overrule Washington's first issue.
BRADY AND MICHAEL MORTON ACT
In his second issue, Washington maintains that the prosecution committed a Brady violation by disclosing to him only on the first day of guilt-innocence statements by the Washingtons' daughter. The daughter's statements address the same substance-the same extraneous bad acts-as did her testimony that we dealt with under the prior appellate issue.
Washington did not preserve any Brady issue about the statements. "[W]hen previously withheld evidence is disclosed at trial, the defendant's failure to request a continuance waives any Brady violation," so because "[a]t no time after the prosecution disclosed the [daughter's statements] did appellant request a continuance . . ., any Brady violation was waived." See Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.-Austin 2002, pet. ref'd) (citations omitted).
Beyond Brady, Washington's appellate brief also mentions the Michael Morton Act and Heath v. State, 642 S.W.3d 591 (Tex. App.-Waco 2022, pet. granted), to argue both that the prosecution's disclosure of the statements was not "as soon as practicable" and that he did not need to preserve his Brady issue in the trial court. On the contrary, he had to preserve his Brady issue, under this Court's precedent as seen in Gutierrez. And Heath's statement that the defendant there did not need to file a motion for a continuance depended on the fact that the trial court there had otherwise granted a defense motion to suppress the evidence at issue. See 642 S.W.3d at 598. Heath is thus procedurally distinguishable from this case, in which Washington did not move to suppress the daughter's testimony on the ground that her statements were not timely disclosed and did not object to admitting the testimony on any such ground.
Otherwise, Washington did not preserve any Michael Morton Act or discovery-order issue about the late disclosure of the daughter's statements for the same reason that he did not preserve his Brady issue-he did not move for a continuance. See Rodriguez v. State, 630 S.W.3d 522, 524-25 (Tex. App.-Waco 2021, no pet.); Prince v. State, 499 S.W.3d 116, 121 (Tex. App.-San Antonio 2016, no pet.); Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.- Texarkana 2002, pet. ref'd); see also Foyt v. State, 602 S.W.3d 23, 49 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) (motion for mistrial did not preserve Michael Morton Act issue about late disclosure of evidence because motion was untimely and defendant could have objected to same evidence when it was offered but did not).
SUDDEN PASSION
In his third issue, Washington maintains that the trial court erred by refusing to instruct the jury on "sudden passion." "Sudden passion" is an issue for the punishment phase of a murder trial, and the defendant bears the burdens of production and persuasion on the issue. See Tex. Penal Code § 19.02(a), (c), (d); Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). According to the Court of Criminal Appeals,
To justify a jury instruction on the issue of sudden passion . . ., the record must at least minimally support an inference: 1) that the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment; 2) that his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; 3) that he committed the murder before regaining his capacity for cool reflection; and 4) that a causal connection existed "between the provocation, passion, and homicide."Wooten, 400 S.W.3d at 605 (quoting McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)).
Washington raises four items of evidence that, he says, required a sudden-passion instruction. He first raises the daughter's testimony that she heard yelling between her parents and Latonya telling Washington to "get out" shortly before the shooting. Yelling like this does not raise sudden passion. See McKinney, 179 S.W.3d at 570 ("[T]he only thing Jeremy did to Appellant was yell at him and push him. These actions do not rise to the level of adequate cause.").
Washington next raises the daughter's testimony tending to show that her parents were having sex and arguing about Latonya's affair just before the shooting. Washington does not explain how the sex alone could raise sudden passion. As for Latonya's affair, the evidence showed that Washington had learned of the affair about two or three weeks before the day Latonya died. No evidence suggested that the affair had continued. Under these circumstances, the two- or three-week lag meant that the affair and its residual effects on the Washingtons did not raise sudden passion. See Naasz v. State, 974 S.W.2d 418, 425 (Tex. App.-Dallas 1998, pet. ref'd); Powers v. State, 757 S.W.2d 88, 90-91 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd).
Third from Washington is his reliance on evidence that after the shooting, he told the daughter that he and Latonya had struggled for the gun and that Latonya had pulled the trigger. This evidence does not raise sudden passion because it requires Washington not to have committed the offense at all. See Wooten, 400 S.W.3d at 605 (the inferences required to raise sudden passion must include that the defendant committed the murder).
Finally, Washington puts forward that he "suffers from Post-Traumatic Stress Disorder which causes him to become more emotional." But sudden passion does not focus on the defendant's specific characteristics; it focuses on a "person of ordinary temper" in the same circumstances as the defendant. See Tex. Penal Code § 19.02(a)(1); Gonzales v. State, 689 S.W.2d 900, 903-04 (Tex. Crim. App. 1985); Segovia v. State, 467 S.W.3d 545, 556-57 (Tex. App.- San Antonio 2015, pet. ref'd). This means that personal attributes not shared by the ordinary reasonable person do not alone raise sudden passion. See Gonzales, 689 S.W.2d at 903-04; Gaston v. State, 930 S.W.2d 222, 226 (Tex. App.-Austin 1996, no pet.) (per curiam).
We conclude that the evidence did not raise sudden passion and thus hold that the trial court did not err by refusing the requested instruction. We overrule Washington's final issue.
CONCLUSION
We affirm the trial court's judgment.
Affirmed.