


 
IN THE
TENTH COURT OF APPEALS










 

Nos. 10-06-00215-CR,
10-06-00216-CR, 10-06-00217-CR,
10-06-00218-CR,
10-06-00219-CR, 10-06-00220-CR,
10-06-00221-CR, and
10-06-00222-CR
 
Stephen Ruffin,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 52nd District
Court
Coryell County, Texas
Trial Court Nos. 17796,   17797, 17798, 17799,
17800, 17801, 17802,
and 17803
 

Opinion ON REMAND

 




            On original submission, we affirmed
Stephen Ruffin’s convictions for aggravated assault on a public servant and
found that expert testimony of a mental abnormality offered to negate the mens
rea element was properly excluded because Ruffin was neither prosecuted for
homicide nor pursuing an insanity defense.  See Ruffin v. State, 234 S.W.3d 224 (Tex. App.—Waco
2007, pet. granted).  The Court of Criminal Appeals reversed, finding the
expert testimony relevant,
and remanded for a Rule 403 analysis and a harm analysis if applicable.  See
Ruffin v. State, 270 S.W.3d 586, 595-97 (Tex. Crim. App. 2008).  We reverse and
remand.
ANALYSIS
Ruffin was charged with shooting at
officers during a standoff on his property.  At trial, he sought to admit
expert testimony from Dr. William Carter to show that he suffered from a mental
abnormality and did not know he was shooting at police officers.  The trial
court not only excluded the testimony because Ruffin had not raised an insanity
defense and was not being prosecuted for homicide, but found: “[U]nder 403 it
would be more confusing to the jury because they would intend to interpret it
as an insanity defense which has not been raised.”  Ruffin contends that the
trial court failed to explain why the evidence was more prejudicial than
probative and “simply invoked Rule 403 in support of its belief that, as matter
of law, [] Ruffin should not have been permitted to offer mental impairment
evidence to negate mens rea because to do so was inherently confusing.”
We agree that the trial court’s ruling is
based on an erroneous conclusion.  See Ruffin,
270 S.W.3d at 597.  Nevertheless, we must uphold the trial court’s ruling if it
is “correct under any theory of law applicable to the case,” “even if the trial
court gave the wrong reason for its ruling.”  Armendariz
v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003).  We, therefore, proceed with our Rule 403
analysis.
Under Rule 403, relevant evidence may be
excluded where its “probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.” 
Tex.
R. Evid. 403.  When conducting
a Rule 403 analysis, the
trial court must balance: (1) the inherent probative force of the proffered
item of evidence; (2) the proponent’s need for that evidence; (3) any tendency
of the evidence to suggest decision on an improper basis; (4) any tendency of
the evidence to confuse or distract the jury from the main issues; (5) any tendency
of the evidence to be given undue weight by a jury that has not been equipped
to evaluate the probative force of the evidence; and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted.  Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.
Crim. App. 2006); Newton v. State, No.
10-06-00160-CR, 2009 Tex. App. LEXIS 6534, at *9-10 (Tex. App.—Waco Aug. 19, 2009, no pet. h.).  
            Carter opined that Ruffin suffers from
“major depression with psychotic features,” including “considerable irrationality,”
delusions, paranoia, and “lack of contact with reality.”  He explained
“delusional thinking” to mean “beliefs that aren’t based in reality,” but a
delusional person often believes that the delusions are true.  Ruffin believed
he was communicating with aliens and was an heir to the English throne.  Carter
further explained that a paranoid person believes that “people are out to get
him” and is suspicious and mistrustful.  According to Carter, Ruffin
“interprets what [people] say and do according to his irrational or paranoid
thinking, so his response to them is going to be based on his own irrationality
as opposed to the other person’s more rational state of being.”  He reviewed
the recording of Ruffin’s conversation with the police negotiator, whom Ruffin
believed was a doctor.  Carter believed that Ruffin was paranoid, irrational,
hearing and seeing things, and unaware of the affect of his behavior on others
on the night of the offense.  He opined that Ruffin’s condition “diminished his
capacity to make rational judgments.”
Several of Ruffin’s friends and family
members testified to his mental state.  They testified that Ruffin was obsessed
with the color orange, burned his mother’s paintings because they contained
other colors, talked to the television and a cigarette lighter, removed
electrical appliances from the home because they were “bugged,” wore a t-shirt
with aluminum foil taped to it because he was receiving signals from a tower,
cut his friend’s hand when the friend failed to say that orange was his
favorite color, believed he was receiving secret messages from the television,
fired a doctor when his family tried to seek help, refused to eat his mother’s
food because he believed she was poisoning him, separated a photograph of his
mother and father, believed that women were “getting rid of the men,” promised his
nephew a thousand orange helicopters from his kingdom, believed he had a castle
in Scotland, and believed he was an heir to the thrown.  Deputy Carol Brown,
Ruffin’s friend, was present during the standoff and testified that Ruffin said
some unusual things and stated that he was declaring martial law.  Witnesses
described Ruffin as “off in left field,” having “lost his rocker,” and in his
“own world.”
            Ruffin testified that he first
noticed a problem when he drove through town and saw that it was a “hippy town”
painted in “psychedelic colors.”  He explained that people on television were
talking to him and ridiculing him.  He heard two voices in his head: one female
and Christian, the other male and Muslim.  The voices liked each other, but not
Ruffin.  He covered his head with aluminum foil to escape the voices.  He
believed that the colors blue and orange were a “mafia plan.”  He recalled
cutting his friend’s hand.  He believed that his mother murdered his father and
brother and thought the Christian girls were killing the men.  He asked the
Sheriff’s Department for a badge because he believed he was the “supreme
commander” of the world.
On the night of the offense, Ruffin
thought he was being hunted by Muslims.  He had heard voices laughing at him
and thought someone was stealing from him.  When Brown called out to him, he
told her to go away, accused her of trespassing, and fired some shots.  At some
point, he heard a helicopter and believed it was an Apache helicopter, with
missiles, being flown by his sister.  He thought Muslims were in the bushes, so
he fired in the direction of the voices.  He believed there were hundreds of
Muslims.  In the morning, he was surprised to see police vehicles in front of
his house.  After his arrest, Ruffin believed that the girls in the jail were
“witches” walking around with black teeth and laughing.
As the Court of Criminal Appeals noted,
“The testimony proffered by Dr. Carter in this case is clearly relevant to the
issue of whether appellant intended to shoot at police officers during the
standoff or whether, because of a mental disease and the delusions that he
suffered as a result of that disease, he believed that he was shooting at
Muslims or some other figment of his mind.”  Ruffin,
270 S.W.3d at 596.  Because Carter’s testimony was
admissible to rebut the mens rea element of aggravated assault on a
public servant, the inherent probative value of the evidence was great.
We are not persuaded that the probative value
of this evidence is minimized by the lay testimony admitted at trial:
Although the trial judge permitted
numerous lay witnesses, including appellant himself, to testify to
“observational evidence” concerning appellant’s mental breakdown and delusions,
that evidence was never put into a mental-disease context or its
psychological significance explained.
 
Ruffin, 270 S.W.3d at 596-97 (emphasis added).  Carter’s
testimony was needed to perform this very function.
While the testimony would certainly be
prejudicial to the State’s case, it would not be unfairly so in
proportion to its probative value.  See Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App.
2002) (“To violate Rule 403, it is not
enough that the evidence is ‘prejudicial’ - it must be unfairly prejudicial.”).  Rather than suggesting a decision on an
improper basis, Carter’s testimony would place the evidence of Ruffin’s mental
state in the proper context and allow the jury to properly evaluate the
probative force of the evidence.  The evidence goes to the heart of the main
issue in the case: whether Ruffin committed the charged offense.  We cannot say
that the jury would have been confused, distracted, or misled by this
evidence.  See Ruffin, 270 S.W.3d at 595 (Expressing “confidence that our Texas judges and
juries are sufficiently sophisticated to evaluate expert mental-disease
testimony in the context of rebutting mens rea just as they are in
evaluating an insanity or mental-retardation claim.”).
Finally, the record does not suggest
that the testimony would cause “undue delay” or “needless presentation of
cumulative evidence.”  Carter’s testimony is not cumulative of other testimony
at trial.  The bill of exception consumed approximately nineteen pages of the
record, and Carter’s testimony at the punishment phase of trial consumed about
forty pages of the record.
In summary, the above factors favor
admission of the evidence.  The trial court abused its discretion by excluding
Ruffin’s proffered expert testimony under Rule 403.  
We now address whether Ruffin suffered
harm as a result of the exclusion of his evidence.  The State argues that harm
should be evaluated for non-constitutional error.  Citing Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007), Ruffin contends that harm should be
evaluated for constitutional error:
The erroneous exclusion of evidence
offered under the rules of evidence generally constitutes non-constitutional
error and is reviewed under Rule 44.2(b).  The
exception is when erroneously excluded evidence offered by the criminal
defendant “forms such a vital portion of the case that exclusion effectively
precludes the defendant from presenting a defense.”  Exclusion of evidence
might rise to the level of a constitutional violation if: (1) a state
evidentiary rule categorically and arbitrarily prohibits the defendant from
offering otherwise relevant, reliable evidence vital to his defense; or (2) a
trial court’s clearly erroneous ruling results in the exclusion of admissible
evidence that forms the vital core of a defendant’s theory of defense and
effectively prevents him from presenting that defense.  In such a case, Rule 44.2(a), the
standard for constitutional errors, would apply.
 
Walters, 247 S.W.3d at 219 (emphasis added).
Texas
does not recognize diminished capacity as an affirmative defense i.e., a
lesser form of the defense of insanity.  Jackson
v. State, 160 S.W.3d
568, 573 (Tex. Crim. App. 2005).  It
is “simply a failure-of-proof defense in which the defendant claims that the
State failed to prove that the defendant had the required state of mind at the
time of the offense.”  Id.  The standard for non-constitutional error
applies.  See Morales
v. State, 32 S.W.3d
862, 866-67 (Tex. Crim. App. 2000) (remanding case to the First Court of
Appeals to evaluate the exclusion of defendant’s expert testimony for
non-constitutional error).
 When evaluating harm from non-constitutional error
flowing from the exclusion of relevant evidence, we examine the record as a
whole, and if we are fairly assured that the error did not influence the jury
or had but a slight effect, we conclude that the error was harmless.  Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim.
App. 2005).  Any error must be disregarded unless it affected Ruffin’s
substantial rights.  See Tex. R.
App. P. 44.2(b).
The State argues that Ruffin’s
substantial rights were not affected because he was able to present similar
testimony from other witnesses, the record contains a wealth of evidence to
support the verdict,[1]
and the jury must have considered Ruffin’s diminished mental state, having assessed
ten years in prison for each count.[2]
 
Whether Ruffin knew he was shooting at
law enforcement officers was central to the case.  The lay testimony of Ruffin’s mental
state amounts to “observational evidence” that was “never put into a
mental-disease context or its psychological significance explained.”  Ruffin, 270 S.W.3d at 597.  The jury did not have the opportunity to hear Carter’s
testimony, which was relevant to his failure-of-proof defense, and to evaluate its
credibility in addition to other evidence presented at trial.  
In Morales v. State, No. 01-99-00457-CR, 2001 Tex. App. LEXIS 3219 (Tex. App.—Houston [1st Dist.] May 17, 2001, no pet.) (not designated for publication),
Morales was charged with
felony driving while intoxicated.  See Morales,
2001 Tex. App. LEXIS 3219, at *1.  Morales
called an acquaintance who testified that he and Morales had four or five beers
several hours before the offense; thus, he did not believe that Morales was
intoxicated.  Id. at *7.  Morales sought to introduce expert testimony
to show that he “would not have been mentally or physically impaired because of
the alcohol burn-off rate.”  Id.  When conducting its harm analysis, the First Court noted that the sole issue at trial was whether
Morales was driving while intoxicated.  See id. at *9.  Morales’s
“primary defense was that he could not have been driving while intoxicated
because such a long period of time had elapsed since his last drink.”  Id.  The expert’s testimony would have “substantially bolstered” that defense. 
  Id. at *9-10.  Although the First Court did not believe that Morales
would have been acquitted “but for the trial court’s error,” it could not say
with “fair assurance
that the excluded
testimony would have had no effect, or but slight effect, on the jury’s
consideration of [Morales’s] defense.”  Id. at *10.  Morales was harmed
because the “jury was not given an opportunity to hear testimony relevant to
[his] defense and assess its credibility along with the other evidence in the
case.”  Id.  
As in Morales, we do not have a
fair assurance that the exclusion
of Carter’s testimony did not influence the jury or had but a slight effect.  Because
we conclude that Ruffin was harmed by this error, we reverse the judgment and
remand this cause to the 
trial court for further proceedings
consistent with this opinion.
   
FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
(Chief
Justice Gray dissenting with note)*
Reversed and
remanded
Opinion
delivered and filed September 23, 2009
Do not publish
[CRPM]
 
*           (Chief
Justice Gray dissents.  A separate opinion will not issue.  The admissibility
of the evidence is dependent on a balancing test administered by the trial
court and even if erroneously excluded must be harmful.  Based on the precedent
of this Court, I cannot conclude the trial court erred in his decision to exclude
the evidence or that, if erroneous, the exclusion was harmful.)
            




[1]
              On original
submission, we noted several facts supporting the verdict: (1) Ruffin had known
Brown for years, knew that she was a law enforcement officer, and acknowledged
her on the night of the offense; (2) some officers had activated the overhead
lights on their patrol cars at the time of their arrival at the scene; (3) the
headlights of some patrol cars illuminated the law enforcement markings on
other vehicles, as well as officers in uniform; and (4) at some point during
the night, Ruffin fired shots at both the officers and a police helicopter.  See
Ruffin v. State, 234 S.W.3d 224, 227-28 (Tex.
App.—Waco 2007, pet. granted).
 


[2]               Citing Peters
v. State, 31 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) and Wilkerson v. State, 766 S.W.2d 795 (Tex. App.—Tyler
1987, writ ref’d), Ruffin contends that exclusion of Carter’s testimony was
harmful.  Because these cases involve testimony excluded at the punishment
phase, they are not particularly helpful.


