Opinion issued May 2, 2013.




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00034-CR
                            ———————————
                   MARCUS ANTHONY SHUFF, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 405th District Court
                          Galveston County, Texas
                       Trial Court Case No. 10CR0506



                          MEMORANDUM OPINION

      A jury convicted appellant, Marcus Anthony Shuff, of murder, found two

enhancements true, and the trial court assessed punishment at confinement for life.

In two points of error, appellant contends that the trial court erred by (1) admitting
evidence of two extraneous offenses, and (2) by allowing the medical examiner to

testify because a statement of appointment and oath of office was not on file at the

time the medical examiner performed the autopsy. We affirm.

                                  BACKGROUND

      On October 5, 2007, a Galveston County Deputy Constable found seventy-

four year-old Albert Lacy dead in his home in Bacliff, Texas. Lacy had died from

blunt force trauma to the head.

      The Galveston County Medical Examiner, Dr. Stephen Pustilnik, performed

the autopsy on Lacy and found multiple lacerations and chop injuries to the scalp.

He concluded that Lacy was hit by a smooth object such as a baseball bat, ax

handle, broomstick, or smooth pipe. He also concluded that Lacy was hit with at

least three different types of instruments.

      When the Galveston County Sheriff’s Office investigated the scene, they

found a baseball bat floating in a pond on Mr. Lacy’s property. During the course

of the investigation, Detective M. Bonner of the Galveston County Sheriff’s Office

collected DNA samples from Roberto Villanueva, Joshua Tucker, Jesse Travis

Brown, Michael Shannon Davis, and appellant. Tanya Dean, a forensic DNA

analyst at the DPS crime lab in Houston, conducted a DNA analysis on the

baseball bat. She tested the blood found on the head of the bat and found that it



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matched Lacy’s DNA. She also concluded that the DNA found on the grip of the

bat matched Joshua Tucker’s DNA. Appellant’s DNA was not found on the bat.

      A few days after the offense, on October 19, 2007, Detective Bonner

conducted a video-taped interview of appellant, who stated that he did not know

who killed Lacy.

      Over a year later, appellant approached police and Detective Bonner

conducted a second video-taped interview of appellant on November 21, 2009. In

the second interview, appellant stated that he stole a green truck and drove to

Lacy’s home. Once there, he stated that he killed Lacy by hitting him in the head

with the baseball bat and then throwing the bat in a pond in front of Lacy’s house.

He also stated that he committed the killing alone. He stated that he killed Lacy

because Lacy was “suffering.” Lacy had an infected abscess on his neck that had

been chronically draining into his skin. However, the medical examiner testified

that the abscess was not cancerous. Subsequently, appellant was indicted for

Lacy’s murder and was arrested on February 18, 2010.

      Appellant’s theory of the case at trial was that he gave a false confession,

and that Joshua Tucker, whose DNA was on the baseball bat, was the true

murderer. In support, appellant presented evidence that, four months before the

murder, Tucker and Lacy had gotten into a dispute, and that Lacy had pulled a gun

on Tucker.    As a result, Tucker had Lacy charged with aggravated assault.

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Appellant’s evidence also suggested that Tucker was extorting $600 from Lacy in

return for dropping the criminal charges, and, in fact, the charges were dropped the

day before Lacy’s death.      There was also evidence that another man, Robert

Villanueva, had been arrested and charged with Lacy’s murder before appellant

confessed.

      Having heard this conflicting evidence, the jury apparently believed

appellant’s confession to be substantially true and convicted him of Lacy’s murder.

This appeal followed.

                           EXTRANEOUS OFFENSES

      In appellant’s first point of error, he argues that the trial court violated Rules

of Evidence 401, 403, and 404(b) by admitting extraneous offense evidence of

theft of a vehicle and cocaine use. In his confession, appellant stated that he stole a

green pickup truck and drove to Lacy’s house before committing the murder. He

also stated that, after the murder, he felt so guilty about it that he went on a cocaine

binge. Before trial, appellant moved to suppress both of these extraneous offenses.

The trial court granting the motion as it applied to evidence that appellant used the

stolen truck after the murder, but allowed evidence that appellant stole and used

the truck to go to Lacy’s house to commit the murder. The trial court also allowed

evidence of appellant’s cocaine binge after the murder.




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Standard of Review

      We review a trial court’s evidentiary rulings under an abuse of discretion

standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Pierre v.

State, 2 S.W.3d 439, 442 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). We

recognize that a trial court must be given wide latitude to admit or exclude

evidence. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Pierre,

2 S.W.3d at 442. If the trial court’s evidentiary ruling is within the zone of

reasonable disagreement, we will not disturb the ruling. Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005); Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1990); Sunbury v. State, 33 S.W.3d 436, 441 (Tex. App.—

Houston     [1st Dist] 2000), aff’d, 88 S.W.3d 229 (Tex. Crim. App. 2002).

Conversely, if the trial court’s ruling “is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree,” then we must reverse for abuse

of discretion. Burks v. State, 227 S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d) (quoting McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005)).

Rule 401 & 404(b)

      Rule 401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence. TEX.

                                           5
R. EVID. 401. Evidence of other crimes, wrongs, or acts is not admissible to prove

character conformity, but may be admissible for other purposes, “such as proof of

motive, opportunity, intent, preparation, plan knowledge, identity, or absence of

mistake or accident.” TEX. R. EVID. 404.

      Theft of the Pickup Truck

      Appellant argues that “stealing the truck wasn’t part of some ‘motive,

opportunity, intent, preparation, or plan’ or any of the other purposes contemplated

by Rule 404(b),” because he stole the truck before he formed the intent to kill

Lacy. However, the State not only argued that the theft was relevant to show

“motive, opportunity, intent, preparation, or plan,” it also argued that it was

admissible to corroborate appellant’s confession. We agree.

      A defendant cannot be convicted based solely on an extrajudicial confession.

See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002). There must

some additional evidence that, considered alone or in connection with the

confession, tends to show that the crime actually occurred. Id. at 645. To be

sufficient, the corroborating evidence need only permit a rational finding of guilt

beyond a reasonable doubt when considered in conjunction with the extrajudicial

confession. Turner v. State, 877 S.W.2d 513, 515 (Tex. App.—Fort Worth 1994,

no pet.). The doctrine is concerned with preventing a conviction from being based




                                           6
solely upon a false confession. Bible v. State, 162 sw3d 234, 247 (Tex. Crim. App.

2005).

      The list of exceptions under Rule 404(b) is “neither mutually exclusive nor

collectively exhaustive.” Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim.

App. 1990). The Court of Criminal Appeals has held that extraneous-offense

evidence is also admissible to corroborate certain kinds of statements and

testimony, such as to rehabilitate an impeached witness or corroborate a

defendant’s confession. Prible, 175 S.W.3d at 731 (citing Long v. State, 823

S.W.2d 259, 273 (Tex. Crim. App. 1992) and Crank v. State, 761 S.W.2d 328, 343

(Tex. Crim. App. 1988)).

      Here, in appellant’s confession to police he stated that he stole a green truck

from a certain location and then drove that truck to Lacy’s home, where he then

committed the murder. At trial, the State was able to corroborate this portion of

appellant’s confession by introducing evidence from Bruce Alexander that his

green truck had been stolen on the same day and from the same location as

appellant indicated in his confession. An officer from the League City Police

Department confirmed that he wrote a report for a stolen truck by Bruce Alexander

at the same time and location as described by appellant in his confession. Thus, the

evidence of the stolen truck was not relevant just to show “character conformity,”




                                         7
but was relevant under 401 and admissible under 404(b) to corroborate appellant’s

confession.

      The Cocaine Use

      Appellant also contends that the trial court erred in admitting evidence of his

cocaine use after the charged offense. The State responds that the evidence was

admissible to show appellant’s “consciousness of guilt.” Under the circumstances

presented in this case, we agree with the State.

      A ‘consciousness of guilt’ is perhaps one of the strongest kinds of
      evidence of guilt. It is consequently a well-accepted principle that any
      conduct on the part of a person accused of a crime subsequent to its
      commission, which indicates a ‘consciousness of guilt’ may be
      received as a circumstance tending to prove that he committed the act
      with which he is charged.

Ray, Texas Practice Vol. 2, Law of Evidence, § 1538, at 242 (1980). Evidence of

extraneous wrongs or bad acts is sometimes admitted to show consciousness of

guilt, which is relevant apart from the question of character conformity. See

Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994).

      While drug use does not, in and of itself, indicate a consciousness of guilt, in

this case appellant stated that he went on a cocaine binge because he felt guilty

about the murder. Thus, the trial court did not abuse its discretion in concluding

that appellant’s cocaine binge was evidence of his consciousness of guilt and had

relevancy beyond “character conformity.”



                                          8
Rule 403

      Appellant also argues that the evidence of the stolen truck and cocaine use

was inadmissible under Texas Rule of Evidence 403. Evidence, though relevant,

can nonetheless be excluded when its probative value substantially outweighs the

danger of unfair prejudice. See TEX.R. EVID. 403. Once a trial court determines

that extraneous offense evidence is admissible under Rule 404(b), the trial court

must, on proper objection by the opponent of the evidence, weigh the probative

value of the evidence against its potential for unfair prejudice. Montgomery, 810

S.W.2d at 389; see TEX.R. EVID. 403. Rule 403 favors admissibility of relevant

evidence, and the presumption is that generally, relevant evidence will be more

probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 389. Unfair

prejudice does not mean the evidence injures the opponent’s case—“the central

point of offering evidence.” Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim.

App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.’” Id.

(quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).

      Although not limited to the following enumerated factors, courts should

balance the following factors under a rule 403 analysis: (1) the probative value of

the evidence; (2) the potential of the evidence to impress the jury in some

irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4)

                                         9
the proponent’s need for the evidence. Prible, 175 S.W.3d at 733. The trial court is

presumed to have conducted the proper balancing test if it overrules a 403

objection, regardless of whether it conducted the test on the record. See Williams v.

State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).

      Here, appellant argues only that the extraneous offense were “highly

prejudicial” to appellant because “it portrays Appellant as a thief and drug addict.”

However, as we have previously discussed, the evidence of the stolen truck was

probative because it corroborated appellant’s confession, and evidence of the

cocaine usage was probative because appellant testified that he went on cocaine

binge because he felt guilty about the murder, thus evidencing a consciousness of

guilt. And, while the evidence may portray appellant as a “thief and drug addict,”

it is not likely that such a portrayal would have an irrational effect on the jury,

especially because appellant was charged with the much more heinous crime of

beating someone to death with a baseball bat. The evidence of the stolen truck and

the cocaine use took very little time to develop and did not distract the jury from

the charged offense for any significant period of time during the trial. And, finally,

the State had a great need for the evidence of the stolen truck to corroborate

appellant’s confession. Admittedly, the State’s need for admitting the cocaine use

was not as great, but showing appellant’s consciousness of guilt was one more

factor used in establishing the charged offense. After considering the rule 403

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factors, we conclude that the trial court did not abuse its discretion in concluding

that the probative value of the challenged evidence was not substantially

outweighed by the danger of unfair prejudice.

         Accordingly, we overrule point of error one.

      LACK OF ANTI-BRIBERY AFFIDAVIT BY MEDICAL EXAMINER

         In appellant’s second issue on appeal, he contends that “the trial court erred

in allowing the medical examiner to testify since a statement of appointment and

oath of office was not on file at the time the autopsy was performed and all actions

performed by the medical examiner and his officers/employees were void.”

Specifically, he claims that Dr. Stephen Pustilnik, the Galveston County Medical

Examiner, failed to file the anti-bribery affidavit as set out in Article XVI, section

1(b) of the Texas Constitution.1

1
         Article XVI, section 1 sets out two required oaths:

Sec. 1. (a) All elected and appointed officers, before they enter upon the duties of their
offices, shall take the following Oath or Affirmation:


         I, _____________, do solemnly swear (or affirm), that I will faithfully execute the
         duties of the office of _____________ of the State of Texas, and will to the best of
         my ability preserve, protect, and defend the Constitution and laws of the United
         States and of this State, so help me God.

TEX. CONST. ART. XVI, § 1(a) (hereinafter the “constitutional oath”).

    (b) All elected or appointed officers, before taking the Oath or Affirmation of office
    prescribed by this section and entering upon the duties of office, shall subscribe to the
    following statement:

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       At a hearing outside the presence of the jury, and before Dr. Pustilnik

testified, the following exchange took place:

       [Defense Counsel: Doctor, I would like to get you to look at an
       exhibit marked Defendant’s Exhibit D for Identification and ask if you
       could identify that.

       [Dr. Pustilnik]: This appears to be the file on---a copy of the file---a
       copy of the oath and anti-bribery affidavits that should be on file with
       the County Clerk here in Galveston.

       [Defense Counsel]: And that was put on file when?

       [Dr. Pustilnik]: August---it was certified---it was filed on August 11th
       of 2011.

       [Defense Counsel]: Okay. And prior to that date did you have an
       anti-bribery affidavit on file in Galveston County?

       I, _____________, do solemnly swear (or affirm) that I have not directly or
       indirectly paid, offered, promised to pay, contributed, or promised to contribute
       any money or thing of value, or promised any public office or employment for the
       giving or withholding of a vote at the election at which I was elected or as a
       reward to secure my appointment or confirmation, whichever the case may be, so
       help me God.

Id. § 1(b) (hereinafter the “antibribery oath”).


(c) Members of the Legislature, the Secretary of State, and all other elected and appointed
state officers shall file the signed statement required by Subsection (b) of this Section
with the Secretary of State before taking the Oath or Affirmation of office prescribed by
Subsection (a) of this section. All other officers shall retain the signed statement required
by Subsection (b) of this section with the official records of the office.


Id. § 1(c) (hereinafter the “filing requirement”).




                                              12
      [Dr. Pustilnik]: On file, no . . . .

Defense counsel then argued that all actions taken by Dr. Pustilnik and his

employees were void because the autopsy was performed in October 2007 and the

anti-bribery affidavit was not filed until August 11, 2011.

      However, Dr. Pustilnik’s failure to file his anti-bribery affidavit does not

affect his status as a de facto public officer. A de facto officer is one who has the

reputation of being an officer and who acts under color of a known and valid

appointment, but who has failed to conform to some precedent requirement such as

taking an oath, giving a bond, or the like. Williams v. State, 588 S.W.2d 593, 595

(Tex. Crim. App. 1979) (citing Weatherford v. State, 31 Tex. Crim. 530, 535, 21

S.W. 251, 251 (Tex. Crim. App. 1893)); Delamora v. State, 128 S.W.3d 344, 357

(Tex. App.—Austin 2004, pet. ref’d).         Here, there is evidence in the record that Dr.

Pustilnik was acting under the color of authority as the medical examiner. See id.

He testified that he had been a medical examiner since 2001, or for six years before

conducting the autopsy involved in this case. See Ex parte Grundy, 110 Tex. Crim.

367, 368–69, 8 S.W.2d 677, 677 (Tex. Crim. App. 1928) (validating acts of

assistant prosecuting attorney who failed to take oath of office).

      Further, the evidence shows only that Dr. Pustilnik did not file the affidavit;

it does not show that he failed to take the required oaths. The fact that the anti-

bribery oath was not filed is not sufficient to render his actions void. The failure to
                                               13
file the oath with the Secretary of State does not vitiate the oath or deprive the

official of the authority to act. Soderman v. State, 915 S.W.2d 605, 612 (Tex.

App.—Houston [14th Dist.] 1996, writ ref’d).

      Finally, appellant also argued that Dr. Pustilnik’s testimony should be

excluded under article 38.22 of the Code of Criminal Procedure because it was

taken in violation of the Constitution. However, there is no evidence of a causal

connection between the medical examiner not having filed the anti-bribery

statement and his testimony concerning Lacy’s cause of death. Absent evidence of

a causal connection, the medical examiner’s testimony was not excludable under

article 38.23(a). See Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App.

2001); Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (the “plain

language” of article 38.23(a) does not require exclusion of evidence when no

“ordinary person” would consider the evidence to have been obtained in violation

of the law); State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996)

(ordinary meaning of “obtained” does not extend to remote causal relationships).

      Accordingly, we overrule point of error two.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice


Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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