

 





 


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0191-04


SHANNON EUGENE HAYES, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

FORT BEND COUNTY



 Hervey, J., delivered the opinion of the Court in which Meyers, Price, Womack,
Keasler, Holcomb and Cochran, JJ., joined.  Keller, PJ., filed a concurring opinion in
which Johnson and Cochran, JJ., joined.

OPINION


 In Tate v. State, we decided that Tex. R. Evid. 404(b) allowed a defendant claiming self-defense in a murder prosecution to present evidence of the deceased's prior threat against him.  We
found this evidence had noncharacter conformity relevance supporting the defendant's self-defense
claim that the deceased was the first aggressor at the time of the offense.  See Tate v. State, 981
S.W.2d 189, 193 (Tex.Cr.App. 1998).  In this case, we are asked to decide if our decision in Tate
applies even when the deceased's prior conduct does not "implicate" the defendant.
	The record reflects that three indictments were filed.  The third indictment charged appellant
with murder and with manslaughter.  See Section 19.02, Tex. Pen. Code (murder); Section 19.04,
Tex. Pen. Code (manslaughter). (1)  The evidence shows that appellant shot and killed an innocent
third party (Swain) while appellant was firing a gun in the general direction of Swain and another
person (Delaney).  Appellant claimed self-defense because Delaney was threatening him with deadly
force, and the jury was instructed on self-defense as it applied to the murder charge.  See Hayes v.
State, 124 S.W.3d 781, 784-85 (Tex. App.-Houston [1st Dist.] 2003). (2)  The jury was also instructed
that self-defense did not apply to the manslaughter charge. (3) See id.  The jury acquitted appellant of
murder and convicted him of manslaughter.  See id.
	At trial, the trial court excluded appellant's proffered testimony of two witnesses (Bell and
Paisley) who would have testified that Delaney had threatened them with a gun about two years
before the incident in this case.  See id.
	[DEFENSE]: There's [Bell and Paisley].  The proffer, I believe they're admissible,
Your Honor, under Rule 404(b) to show the proof of a motive, opportunity, intent,
preparation, plan, and lack of accident on the part of [Delaney] in attacking [Bell and
Paisley] in a car, running up to a car after getting in a fight with one.  They're
signature episodes of [Delaney], and I would request the opportunity to present both
of them, or at least one of them, to describe the events that they saw and observed,
and how he attacked them with a gun and tried to kill both of them.  I believe they're
admissible under 404(b).

	[STATE]: The State's response is that they're not admissible under 404(b), and that
they're being offered to show that the witness acted in conformity therewith.  They
have no probative value as to show what the witness' intent was, what [Delaney's]
intent was involving [appellant] who's on trial today.  Also, the State contends that
under a prejudicial analysis under 402 and 403, that the prejudicial value
substantially outweighs the probative effects.

	[TRIAL COURT]: Is that an objection?

	[STATE]: It is, Your Honor.  We object.

	[DEFENSE]: The State's not entitled to due process under course of law.  Any
balancing has to be in favor of [appellant], not the State, because it shows the way
[Delaney] thinks and operates when there's alcohol involved and that he gets angry. 
So, I believe that under 404(b), it shows his modus operandi of not being afraid to
attack two people when he's angry.

	[TRIAL COURT]: Objection sustained.  Anything else?

	Appellant claimed on direct appeal that the excluded evidence of Delaney's prior aggression
against Bell and Paisley was admissible under Rule 404(b) to show that Delaney was the first
aggressor during the incident in which appellant shot and killed Swain.  See Hayes, 124 S.W.3d at
786. (4)  The Court of Appeals rejected this claim and decided:
	In Tate, a threat made by the victim toward the defendant could be introduced as
evidence of the victim's state of mind and possibly his motive for the confrontation
with the defendant.  (Citation omitted).  The testimony was probative of whether the
victim was the initial aggressor, but it could be brought in for other purposes. 
(Citation omitted).  In the instant case, the incident about which appellant wished to
introduce testimony did not implicate appellant in any way.  Delaney did not make
any threat toward appellant, and Delaney did not indicate that he had any animosity
toward appellant.  The incident is not probative of Delaney's motivation or state of
mind related to the confrontation with appellant.

See Hayes, 124 S.W.3d at 786.

	We exercised our discretionary authority to review this decision.  The ground upon which
we granted discretionary review states:
	Whether this Court's decision in [Tate] requires the Defendant to have been
"implicated" by the victim's prior bad act before such evidence is admissible under
Rule 404(b)?

	This Court's decision in Tate does not require a defendant to have been "implicated" by the
victim's prior bad act before such evidence can be admissible under Rule 404(b).  In Torres v. State,
we applied Tate to decide that, in a murder prosecution where a defendant claims self-defense, the
deceased's prior threats may be admitted, even though those threats were not directed at the
defendant, "as long as the proffered [threats] explain the outward aggressive conduct of the deceased
at the time of the killing, and in a manner other than demonstrating character conformity only."  See
Torres v. State, 71 S.W.3d 758, 761-62 (Tex.Cr.App. 2002).
	In this case, however, it is unnecessary to decide whether the evidence of Delaney's two-year-old specific acts of violence against Bell and Paisley was admissible under Torres and Tate because
the only relevance of this evidence was to the murder charge of which the jury acquitted appellant.

	The judgment of the Court of Appeals is affirmed.
								Hervey, J.
Delivered: April 27, 2005
Publish
1. 	The first three paragraphs of this indictment charged murder and the fourth paragraph
charged manslaughter.
2. 	The jury essentially was instructed to acquit appellant of murdering Swain if appellant had
the right to use self-defense against Delaney.
3. 	Section 9.05, Tex. Pen. Code, makes self-defense unavailable to a defendant who recklessly
injures or kills an innocent third person.  See Section 19.04(a) (defining manslaughter as recklessly
causing the death of an individual).  In considering whether appellant was guilty of manslaughter,
the jury was instructed as follows:

	Even though a defendant is justified in threatening or using force or deadly force
against another, if in doing so he recklessly injures or kills an innocent third person,
the justification afforded is unavailable in a prosecution for the reckless injury or
killing of the innocent third person. 
4. 	We express no opinion on whether appellant preserved this claim in the trial court.  See Tex.
R. App. Proc., 33.1(a)(1)(A), (to preserve claim for appellate review, record must show that
complaint was timely made to trial court with sufficient specificity to make trial court aware of the
complaint).
