
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-023 CR

____________________


CHARLES RAY DORSEY, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 96-08-01088-CR




OPINION
	In this appeal, appellant Charles Ray Dorsey challenges his conviction of murder
and the jury-assessed punishment of forty years' confinement in the Institutional Division
of the Texas Department of Criminal Justice.  In pursuing his appeal, he presents sixteen
issues for our determination.  We will discuss those issues sequentially as their decision
may become necessary to the disposition of this appeal.  For reasons hereinafter stated, we
modify the judgment of the trial court.  As modified, the judgment is affirmed.
	Early on the morning of May 14, 1996, appellant Charles Dorsey called 911 and
reported that his wife Pamela had been shot.  When the operator queried if the person who
shot her was still present, appellant replied, "It's my little boy.  He got in her purse and
got her gun."  DeLane Potter, a patrol security officer for appellant's residential
subdivision, who was first on the scene, testified that he found Pamela in the bedroom,
lying face down on the bed covered up to her neck with a blanket and sheet.  He testified
that when he arrived, appellant was very upset and the couple's child, two and one-half
years old at the time, was confused and disoriented.  There was evidence that Pamela died
as a result of a gunshot wound to the head.  Other portions of the rather extensive evidence
will be referred to as it may become necessary to a discussion of the questions presented
in this appeal. 	
	In his first four issues, appellant contends the trial court reversibly erred in 
admitting evidence of the movie Never Talk to Strangers (Columbia/Tristar 1995)
because 1) it amounted to a comment on the weight of the evidence, 2) it was irrelevant,
3) it was in violation of Texas Rule of Evidence 404(b), and 4) its probative value was
exceeded by its prejudicial value.  Because they are interrelated, appellant argues them
together.  We will likewise consider them together.
	As an appellate court, we review the trial court's decision to admit or exclude
evidence under an abuse of discretion standard, and we may not reverse a trial court if its
ruling was within the zone of reasonable disagreement.  See Green v. State, 934 S.W.2d 
92, 101-02 (Tex. Crim. App. 1996).  Rule of Evidence 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. R. Evid. 401.  Rule 402 provides that all relevant evidence is admissible
except as otherwise provided by the Constitution, by statute, by the rules of evidence or
by any other rules adopted pursuant to statutory authority.  See Tex. R. Evid. 402.  In
applicable part, Rule 403 provides that relevant evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury."  Tex. R. Evid. 403.  In relevant part, Rule 404(b) provides that
evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in conformity therewith.  Such evidence, however,  may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.  See Tex. R. Evid. 404(b).   
	At trial, and after the State had presented its case in chief,  appellant presented a
vigorous defense supporting his assertion that the fatal shots were accidentally fired by his
infant son. As a part of the State's rebuttal evidence, Montgomery County Sheriff's
Detective Bonnie Tidwell was allowed to testify, over objection, that she had viewed  the
movie Never Talk to Strangers.  In particular, she said the movie concerned a female
psychiatrist who has a flash back in which she remembers that when she was a child,  her
father  "tells the little girl [the psychiatrist]  to stay with him.  He takes her in front of
him, has a gun in his hand, takes the little girl's hands that's on the weapon, on the trigger,
puts his hands over hers, pulls the trigger and kills her mother."  Subsequently, "she [the
psychiatrist] killed her father and the police officer [with whom she had been involved]. 
And then she went on with her life."
	Appellant initially argues that the State failed to offer evidence that appellant had
ever watched the movie or was aware of the movie's plot, thus the probative value, if any,
arising from the movie was substantially outweighed by its prejudicial effect.  To lay a
predicate for the movie's admission, the State produced Peggy Sue McRae, a clerk at the
"Take One Video" in May of 1996.  Ms. McRae testified that the records of the video
rental company showed that the movie was checked out by appellant on May 5, 1996, and
was returned on May 6, 1996, approximately one week prior to the death of Pamela
Dorsey.  When she read about the circumstances of the shooting in the newspapers, her
curiosity was piqued,  she looked at Charles and Pamela Dorsey's account, noticed that
the last rental was the movie in question, and told her supervisor that "the rental of this
movie . . . might be pertinent to this case."  Subsequently, the records of Take One Video
relating to the rental were subpoenaed.    
	At trial, on direct examination by the State, McRae's testimony that she checked the
movie out to appellant was unequivocal.  When cross-examined about testimony in a prior
trial of this case in which the record showed she had said she rented the movie to Pam and
Chad Dorsey (appellant),  McRae averred she did not remember that prior testimony, and
reiterated that her present testimony as to the person to whom the movie was checked out
was correct. Under redirect testimony, she testified that she particularly remembered the
occasion because of the death of appellant's wife the week after the movie was rented, and
that appellant had some physical characteristics that were "substantially different" from
any of the other renters with whom she had  contact.  Even assuming there may have been
conflicts between her testimony in the first trial and her testimony in this one, her
testimony was still sufficient to bring it within the jury's exclusive province of resolving
conflicts and assessing the credibility of the testimony and the weight to be given it. 
	In supporting his position that the admission of the testimony requires reversal,
appellant argues that the only evidence connecting appellant with the movie was the
"conflicting" testimony of the clerk.  He reasons that even viewing her testimony in a light
most favorable to the State, the State failed to bring any evidence that appellant actually
watched the movie or was aware of the plot.  As highlighting the differences in a proper
predicate laid for the admission of movies, and the predicate laid here, appellant cites two
cases, namely Morton v. State, 761 S.W.2d 876 (Tex. App.-Austin 1988, pet. ref'd), and
Parrish v. State, 950 S.W.2d 720 (Tex. App.-Fort Worth 1997, no pet.). That reliance
warrants a discussion of the cases.
	In Morton, the State's theory was that Morton had killed his wife in a fit of sexual
frustration and anger after she had refused him sex.  Morton, 761 S.W.2d at 877.  In the
appeal, the court addressed Morton's contention that a statement, in which he admitted 
that he and his wife had watched a sexually explicit movie prior to her rejection of him,
was involuntary and not admissible.  Id. at 878-79.  It was in that context that the appellate
court held Morton's statement was voluntary and properly admitted.   Id. at 879.  Because
the statement was admissible, it was uncontroverted that Morton had watched the film, and
thus the court had no occasion to discuss or consider the predicate necessary in an instance
such as that before us.  Indeed, more relevant is the court's discussion in which it held that
the case depended upon circumstantial evidence and in such a case, the probative value of
the portion of the film admitted exceeded its prejudicial effect.  Id. at 881.  Of course, the
instant case is also a circumstantial one. 
	In Parrish, the State's theory was that appellant had murdered his wife to collect on
her life insurance policy.  Parrish, 950 S.W.2d at 721.  The videotape in question there
was made by the appellant and revealed that he had thought about collecting death benefits
by defrauding an insurance company.  Id. at 723-24.  The court was concerned with the
question whether the probative value of the evidence was outweighed by its prejudicial
effect.  Id.  It concluded that the tape was admissible and relevant in establishing Parrish's
intent, preparation, and plan to commit the crime charged.  Id. at 724. The court had no
occasion to discuss the requisites of a proper predicate in such a case because it was
undisputed that the appellant had created the video.  Rather, the court's primary concern
was whether the prejudicial value of the video exceeded its probative value.  The court
concluded the tape was relevant as establishing the defendant's intent, preparation, and
plan to commit the crime charged.  In the course of its opinion, it noted, to the extent the
evidence was prejudicial, "such is the inherent nature of evidence used by the State to
prove its case."  Id.  
	It is axiomatic that determining the credibility of evidence and the weight to be
given that testimony is within the province of the jury.  In this circumstantial evidence
case, the evidence was relevant and admissible to show appellant's motive and intent and
that the shooting was not the result of an accidental firing by his two and one-half year old
son.  It was also sufficient to justify a reasonable conclusion that appellant did rent the
film, did so for the purpose of viewing it, and that he viewed it.
	Having made that decision, it now becomes necessary to review appellant's
contention that the prejudicial effect substantially outweighed its probative value. In the
seminal case of Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996), the Court
of Criminal Appeals explicated that in making a determination of this kind, the reviewing
court should consider: "1) whether the ultimate issue was seriously contested by the
opponent of the evidence; 2) whether the State had other convincing evidence to establish
the ultimate issue to which the disputed evidence was relevant; 3) the compelling nature,
or lack thereof, of the evidence; and 4) the likelihood that the evidence was of such a
nature to impair the efficacy of a limiting instruction."  Id. at 322.
	In applying those factors, first, the ultimate issue here, i.e., whether appellant's
wife was shot by accident or whether appellant was the actual killer, was hotly contested. 
Second, the State had no other convincing evidence as to why appellant would say his
small son shot Pamela.  Third, only brief testimony about the movie was admitted rather
than the movie itself. Fourth, because the movie concerned a fictional murder, it is
unlikely that the jury would have used it for anything other than the purpose for which it
was admitted.  We conclude that in this circumstantial evidence case, the probative value
of the evidence was not substantially outweighed by its prejudicial value.  Thus, the trial
court did not abuse its discretion in admitting the tape.  Appellant's first four issues are
overruled.
	Appellant's next six issues concern the admission into evidence of a video tape of
his son Connor's interaction with the holstered gun used in Pamela's shooting.  The
purpose of the tape was to determine whether Connor had the physical capability of pulling
the trigger of the gun.  The tape showed that Connor had the physical capability of pulling
the trigger of the gun when the hammer was cocked but could not do so when the gun was
not cocked.  It also showed that Connor could not open the holster when it was strapped
shut.   
	The issues are interrelated and we will discuss them together.  In issues five and six,
appellant contends his federal and state due process rights were violated because the State
maintained inconsistent positions between the first trial (1) and the second trial of this case. 
In his seventh, eighth, ninth, and tenth issues, appellant argues the trial court reversibly
erred in denying his motion to suppress the video tape because it constituted an improper
experiment, it constituted an improper interview, it constituted hearsay, and the tape was
obtained in violation of a valid court order.
	The tape was shot in an interview room at the sheriff's office. In the course of
overruling appellant's objection to the admission of the tape, having previously viewed the
tape, the trial court made findings that: 1) it was immaterial whether the taped episode was
called an experiment or an interview; 2) significant factors were "the presence of the child,
gun, holster, lighted room, apparently no pressure exerted one way or the other by anyone
on the child;" and 3) it was not relevant whether the episode was filmed in a rom that did
not have a bed, whether or not there was a body there, and whether or not it looked like
the room in which the decedent expired.  Indeed, he opined, where the tape was shot was
more conducive to a reasonable, realistic result than if it had occurred in the bedroom
where the child may have had memories.  
	The record contains Officer Tidwell's description of the events shown on the tape. 
Other than the general objections to the admission of the tape we have noted, appellant
initially made no objection to the narration of the events depicted. Tidwell's narrative was
made as the tape was running before the jury and they could observe themselves what was
taking place. Tidwell initially described the child running in front of her into the room. He
picked up a couple of dolls that were in the room, looked at them briefly, threw them
away, and went to the gun.  It was not until that point that appellant objected to Ms.
Tidwell's narrative of the events being shown on the tape.   His objection was that "the
tape which is in evidence speaks for itself."  That objection was not timely.
	The tape continued to the point where the child picked up the weapon and attempted
to open the strap part on the holster.  Ms. Tidwell then narrated that when the child could
not open the holster because of the strap on it,  "we both together got it open and he took
the weapon out of the holster and began to look at it."   She described the child's
unsuccessful efforts to cock the double action pistol or to pull the trigger when it was
uncocked.
	Appellant initially argues that the State maintained inconsistent positions between
the first and second trials  "as to whether Conner's video tape was an interview or whether
it was an experiment." He posits that the difference in the terms occurred after his initial
objection.  The change in terminology, he contends, was material and adversely affected
his due process rights because if the occurrence was an experiment, "it raised the legal
issues regarding the legal requirements of an admissible police experiment."  As best we
understand, he reasons that the State's transition to the term "interview" was an attempt
"to shield itself from the legal requirements of an admissible experiment" and would lessen
the State's burden to establish the admissibility of the evidence.  
	With regard to the admissibility of experiments, appellant cites and relies upon
Marras v. State, 741 S.W.2d 395 (Tex. Crim. App. 1987), overruled on other grounds by
Garret v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993); Esquivel v. State, 595 S.W.2d
516 (Tex. Crim. App. 1980); and Lopez v. State, 651 S.W.2d 413 (Tex. App.-Fort
Worth), rev'd and remanded on other grounds, 664 S.W.2d 85 (Tex. Crim. App. 1983).
These cases stand for the general principle that the results of an out-of-court experiment
is admissible within the discretion of the trial court if the experiment was made under
conditions similar to the event to which the results of the experiment relate.  See Esquivel,
595 S.W.2d at 529.  However, that principle is qualified by the fact that an experiment not
made under exactly the same conditions goes to the weight and not the admissibility of the
evidence.  Id.  
	In arguing that the taped events were, in effect, a recreation of the crime, appellant
places considerable reliance upon the statement by the Lopez court that "any staged, re-enacted criminal acts or defensive issues involving human beings" are "inherently
dangerous, offer little in substance and the impact of re-enactments are too highly
prejudicial to insure the State or the defendant a fair trial."  Lopez, 651 S.W.2d at 416.
We find the reasoning the court employed in Marras helpful in considering this argument. 
In Marras, a capital murder case, the court was concerned with a videotape that showed
the area through which an eyewitness walked after the witness viewed the crime.  Marras,
741 S.W.2d at 404.  The events shown on the tape were narrated by the witness as it was
shown.  Id.  Marras had objected to the admission of the tape on the basis that the tape was
not an accurate "duplication" and asked the appellate court to apply the reasoning of the
Lopez court and hold the trial court erred in admitting the tape.  Id.  In considering that
argument, although approving the Lopez explication, the Marras court said because the
tape only showed the route taken by the witness and the accused after the crime was
actually committed, it did "not depict any staged, re-enacted criminal acts" and the trial
court did not abuse its discretion in admitting the tape.  Id.  Regardless of the
nomenclature of the events pictured in the tape here, the reasoning employed by the
Marras court is applicable.   The events depicted on the tape were not a re-enactment of
the crime itself, the tape was taken after the crime, and the weight to be given the events
depicted was a matter within the purview of the jury as fact-finder.  The trial court did not
abuse its discretion in admitting the tape.  Appellant's fifth and sixth issues are overruled.
	In his seventh, eighth, and ninth issues, appellant contends that the videotape was
the result of an improper experiment or interview and thus was inadmissible as hearsay. 
In advancing that proposition, he initially reasons that the events shown on the tape were
analogous to the child testifying and, because the child was not placed under oath, nor was
there any showing that he was competent to understand the obligation that court testimony
be truthful, the tape was not admissible.  We agree with the State that videotape of the
activities of the child is comparable to the videotapes of a driver alleged to be intoxicated. 
The Court of Criminal Appeals has held visual depictions of sobriety tests are not
testimonial and do not violate a defendant's federal or state constitutional right against self-incrimination. See Miffleton v. State, 777 S.W.2d 76, 80 (Tex. Crim. App.1989); see also
Gassaway v. State, 957 S.W.2d 48, 50-51 (Tex. Crim. App. 1997)(recitation of the
alphabet and counting backwards in sobriety tests are not testimonial in nature and thus are
not within the purview of Fifth Amendment protection). 
	In this case, the videotape was played before the jury without sound.  As we noted
above, there was no attempt to recreate the actual shooting.  That being so, and because
the actions of the child were merely being observed, the rather strict restrictions governing
the determination of the competency of child witnesses are not applicable here.
	Appellant next contends that the child's activities in response to questions by
Tidwell (2) amounted to inadmissible hearsay.  He argues the fact that the child responded
to Tidwell's questions by actions rather than words does not mean that Conner was not
communicating with Tidwell.  Thus,  any opinion arrived at by Tidwell as to the child's
ability to pull the trigger of the gun must necessarily be based upon the child's out- of-court conduct, i.e., inadmissible hearsay.  To support that argument, appellant cites and
relies upon D.L.N. v. State, 590 S.W.2d 820 (Tex. Civ. App. - Dallas 1979, no writ), a
prosecution for alleged deviate sexual intercourse.  However, that case is distinguishable. 
In D.L.N., in response to questions asked by the prosecution, the father of the complainant
was allowed to testify about the child's re-enactment of the acts giving rise to the
prosecution.  Id. at 822.  A minister was also present at the time and was allowed to testify
about the child's actions in response to the questions.  Id.  It was in that context the
appellate court decided the testimony was inadmissible hearsay.  Id.  In the instant case,
none of the circumstances of appellant's version of  the shooting were attempted to be re-enacted.  Rather, the child simply performed physical responses that, when viewed by the
jury, were relevant and admissible to aid them in assessing the credibility of appellant's
testimony.  Appellant's seventh, eighth, and ninth issues are overruled.
	In his tenth issue, without citation of case authority, appellant complains that the
trial court reversibly erred in denying his motion to suppress the videotape described above
because it was allegedly obtained in violation of a court order.  The failure to cite relevant
authority could result in the waiver of this issue.  See Tex. R. App. P. 38.1(h); Salazar
v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001).  However, because of appellant's
diligent briefing on other issues, in the interest of justice, we will consider the question
presented.  The record reveals that Child Protective Services took custody of Conner under
an emergency order on May 24, 1996.  A hearing was held on the matter on the morning
of May 28, 1996, the next working day.  As a result of the hearing, custody of the child
was awarded to Conner's maternal grandparents.  
	At the suppression hearing, James McClure, the child's maternal grandfather
testified.  He averred he was present when the judge awarded custody of Conner to him
and his wife, although they did not pick the child up until 6:00 or 7:00 in the evening of
May 28.  He said that at the hearing, the District Attorney had asked them to come to his
office. When the couple arrived at the District Attorney's office, they were told that the
authorities did not know exactly where Conner was at the time because the person in
possession of him was "shopping or something."  They were informed the authorities
would let them know as soon as they contacted "her." Evidently, that reference was to the
person with whom the child had been temporarily placed.  When they were later contacted,
they were told to pick the child up at the Sheriff's office.  In his testimony, McClure said
that although no video taping was mentioned, he was told the Sheriff's Department wanted
to see if Conner could handle the gun.  His response was that would be fine, but he wanted
them to do it before "I got ahold of him [the child] because I wanted to bring him back."
Although McClure did not see the tape until later, when he did so, he said he was glad it
was made and had no objection to it.  Appellant's tenth issue is overruled.
	Appellant's eleventh, twelfth and thirteenth issues are also interrelated and will be
considered by us together. The gist of those issues is that the trial court reversibly erred
in admitting Pamela's out-of-court statements that appellant would harm or kill her and her
belief that appellant would take Conner away.  As we have noted, a trial court's ruling on
the admission of evidence is measured by an abuse of discretion standard.  Its ruling
should not be reversed if the ruling is within the "zone of reasonable disagreement.  See
Green, 934 S.W.2d at 101-02 (quoting Montgomery v. State, 810 S.W.2d 372, 379-80,
(Tex. Crim. App.1990)).  Moreover, there is a "state of mind" exception to the hearsay
rule which is codified in Texas Rule of Evidence 803(3),   That rule provides:
	(3) Then existing Mental, Emotional, or Physical Condition.  A statement
of the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, motive, design, mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
 
	In argument under this issue, appellant points out testimony the State elicited that
Pamela was preparing to divorce appellant, that she believed appellant would harm or kill
her, and that she believed appellant might take Conner away from her.  He acknowledges
that the testimony about Pamela's preparations for divorce fall within the "state of mind"
hearsay exception.  However, he argues, the testimony that Pamela believed Dorsey would
harm or kill her or might take Conner away did not fall within the "state of mind"
exception and was not admissible.  
	In support of his argument that reversal is required, appellant made record citations
to portions of the testimony of Linda Reynolds, Pamela's work supervisor, Sherri Scarpa,
a former co-employee with Pamela, Rachel Courreage, another former co-employee of
Pamela,  and Melvin Franklin, a Montgomery County sheriff's detective.  In reviewing
the portions of the record upon which appellant cites and relies, we find no testimony
elicited by the State that Pamela believed appellant would harm or kill her or words to that
effect.  The Rules of Appellate Procedure not only require a clear and concise argument
for the contentions made, they also require appropriate citations to the authorities and to
the record.  See Tex. R. App. P. 38.1(h).  Appellant's failure to comply with that
requirement fails to preserve that portion of his issue for appellate review.  
	With regard to appellant's threats to take Conner away from Pamela, appellant cites: 
	1. Ms. Reynold's testimony on November 6, 2001 that Pamela "was afraid
that her husband would take Conner and run away with him and she would
never see him again."

	2. Ms. Scarpa's testimony on November 6, 2001, that Pamela "was fearful
of her husband", and that she "was thinking of leaving her husband, Chad,
and that Chad had told her that he would take the baby to Scotland, should
she leave."  

	Appellant made no trial objection to that testimony of Ms. Reynolds.  Texas Rule
of Appellate Procedure 33.1 requires a timely and specific objection to preserve a question
for appellate review.  Tex. R. App. P. 33.1.  Texas Rule of Evidence 103 also provides
that error may not be predicated upon a ruling admitting evidence without a timely
objection or motion to strike unless the ruling is fundamental error.  Tex. R. Evid. 103. 
Because of the lack of a timely and specific objection on the basis he now raises, appellant
has failed to preserve the question for appellate review.  See Wilson v. State, 7 S.W.3d
136, 145 (Tex. Crim. App. 1999).  Although appellant had made an earlier hearsay
objection to portions of Ms. Scarpa's testimony, he did not ask for, and was not granted,
a running objection to her testimony.  He also made no such objection to this portion of
Ms. Scarpa's testimony.  By failing to do so, he did not preserve the hearsay question for
our review.  Parenthetically, he does not argue fundamental error. 
	  Moreover, assuming arguendo that the question was preserved for our review,
because Ms. Reynolds's earlier and similar testimony had been admitted without objection,
any error in the admission of the later testimony was cured.  See Ethington v. State, 819
S.W.2d 854, 858 (Tex. Crim. App. 1991) (an error in admission of evidence is cured
when the same evidence comes in elsewhere without objection). 	
	Additionally, in this court's earlier opinion, we held that hearsay testimony
describing Pamela's fear of Dorsey was admissible to show her emotional state or "mental
feeling" at the time she made such statements.  Dorsey, 24 S.W.3d at 928.  We also held
that certain statements that were not reflective of Pamela's state of mind but rather were
her memories of specific events were not admissible under Rule 803(3).  Id. at 929.   In
Barnes v. State, 56 S.W.3d 221, 231 (Tex. App.-Fort Worth 2001, pet. ref'd), with
citation of the decisions of numerous sister courts, including the Dorsey decision, the court
opined that a statement that the declarant is afraid or testimony demonstrating that the
declarant was afraid when the statement is made is admissible under Rule 803(3).  
	The testimony which led to the reversal of the first trial of this case was, in our
words, "not reflective of Pamela's state of mind but instead were her memories of specific
events" and thus not admissible under Rule 803(3).  Dorsey, 24 S.W.3d at 929.  In
contrast, the testimony in question here, namely, that Pamela was "fearful" of her husband
or was afraid he might harm her, or that he might take Conner away were not related to
memories of underlying specific events but were limited to her mental impressions.  As
such, even had the question been properly preserved for our review, the testimony was
admissible.  Appellant's eleventh, twelfth and thirteenth issues are overruled.
	In his fourteenth issue, appellant argues the trial court reversibly erred in admitting
evidence of extraneous acts of appellant in violation of Texas Rule of Evidence 404(b). 
Tex. R. Evid. 404(b).  Specifically, his complaint is about testimony elicited during the
cross-examination of defense witness Stacey Hert, the couple's Amway supervisor. 
During her direct examination, Stacey testified that she was visiting Pamela in the Dorsey
home around the end of 1995 or in early 1996. As she visited, she saw Conner climb up
on a counter,  pull out a gun from Pamela's purse, and hold it in both hands.  She said that
frightened her, she told Pamela the child had the gun, and Pamela laughed and took the
gun away from Conner and replaced it in her purse.
	On cross-examination, Stacy testified that on May 9, 1996, appellant came to her
house to pick up some Amway products. Stacey testified that she was familiar with the
couple's relationship and it was "not a good one" and [t]hey argued all the time."  On May
9, 1996, she and appellant had a discussion about their relationship and appellant said
"[t]hat he would pull the trigger first."
	On redirect examination by appellant, Stacy said that she had made a remark
jokingly but his response was not joking.  The record then shows the following colloquy
between defense counsel and the witness:
	Q.  What did you say to him that got that response?

	A.  I said to him that, "One of these days you're going to open the paper and
see 'April Sound [the location of their residence] couple found dead in their
home, double suicide[.]'" And then I said, "No, it will be a double
homicide, whenever you see it.

Although appellant admits the statement was admissible as an admission by a party
opponent, he argues it must also meet the requirements of Texas Rule of Evidence 404(b). 
Although that Rule excludes evidence of other crimes, wrongs, or acts introduced to prove
conformity with that character, it does allow such evidence to show proof of motive,
intent, opportunity, or absence of mistake or accident.  In view of appellant's defense that
the shooting was accidental, the testimony was clearly admissible to show the absence of
mistake or accident as well as motive and intent.  Moreover, statements of this nature are
admissible in a murder trial under Texas Code of Criminal Procedure article 38.36(a). 
That article permits the State to offer testimony "as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between the accused and the
deceased, together with all relevant facts and circumstances going to show the condition
of the mind of the accused at the time of the offense." Tex. Code Crim. Proc. Ann. art.
38.36(a) (Vernon Supp. 2003). Appellant's fourteenth issue is overruled.
	In his fifteenth issue, appellant argues the trial court reversibly erred in excluding
the testimony of his expert witness Dr. Rex Frank, who, he says, would have testified
about Connor's motor skills ability.  Dr. Franks would have testified about the average
grip strength of an average two and one-half year old child and whether such a child would
have the strength to pull the trigger of a gun such as the one used in the shooting.  After
the State's objection to his testimony was sustained, appellant's careful trial lawyers
included his testimony in a bill of exceptions and we have reviewed that testimony.  The
bill shows that the doctor's testimony was based upon various studies and, other than
viewing a video tape of the child mowing grass and the State's video we have discussed
above, he had never actually seen and tested Conner nor had he personally conducted any
grip strength test on any child or children actually equivalent to Connor in age and fitness. 
	Texas Rule of Evidence 702 allows the admission of expert testimony such as this
if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." 
Tex. R. Evid. 702.  Under the Rule, the proponent of the evidence must show by clear and
convincing evidence that the evidence proffered is sufficiently relevant and reliable to
assist the jury in that regard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000).  In addressing the admissibility of expert evidence, "the trial court's first task
is to determine whether the testimony is sufficiently reliable and relevant to help the jury
in reaching accurate results."  Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App.
1992).  Thus, "the testimony must be 'sufficiently tied to the facts to meet the simple
requirement that it be 'helpful' to the jury.'"  Morales v. State, 32 S.W.3d 862, 865 (Tex.
Crim. App. 2000) (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App.
1996)).  We review a trial court's ruling on the admissibility of evidence under an abuse
of discretion test and must uphold the trial court's ruling if it is within the zone of
reasonable disagreement. Weatherred, 15 S.W.3d at 542.  Under this record, the trial
court did not abuse its discretion in excluding the evidence.  Appellant's fifteenth issue is
overruled.
	In his sixteenth and final issue, appellant complains of the deadly weapon finding
in the trial court's judgment and asks us to reform the judgment to delete that finding.  In
relevant part, the indictment in this case provides:
		Charles Ray Dorsey . . .  did then and there intentionally and
knowingly cause the shooting death of an individual, namely
Pamela Gale Dorsey, by shooting her.

The jury found appellant was guilty "as charged in the indictment."  It made no express
finding as to the use of a deadly weapon.
	In Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985), the court instructed
that a trial court may not properly enter an affirmative finding concerning the defendant's
use or exhibition of a deadly weapon during the commission of the offense unless:

	the deadly weapon or firearm has been specifically pleaded as such
and the verdict reads "guilty as charged in the indictment";

 

 	where not specifically pleaded as a deadly weapon or firearm, the
weapon pleaded is per se a deadly weapon or a firearm; or
 	a special issue is submitted and answered affirmatively.

	In Ex Parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989), cited by the State,
the court considered an indictment which alleged that the appellant caused the death of the
victim "shooting him with 'a gun.'"  In the course of its discussion, the court noted that
the allegation was sufficient to give the defendant notice that the State would attempt to
prove that the named gun was used in a manner that caused death and was, therefore, a
deadly weapon. Id. at 528.  However, the court warned, had the jury in that case not
answered a special issue that the gun was a deadly weapon, "there would have been no
affirmative finding of deadly weapon made, even upon the return of a verdict of 'guilty as
charged in the indictment.'" Id.   
	In Boyett v. State, 692 S.W.2d 512, 517 (Tex. Crim. App.1985), the court had
occasion to consider an indictment that charged a death was caused  "by shooting him with
a gun." As relevant here, the court reiterated its previous holding that a "gun" is not a
deadly weapon.  Id.  That being so, the court concluded, "the indictment in this case does
not allege a deadly weapon so as to permit a verdict of 'guilty as alleged in the indictment'
to be considered an affirmative finding."  Id.  It is true that the Court of Criminal Appeals
has held a "pistol" is a deadly weapon per se, see Giles v. State, 617 S.W.2d 690, 691
(Tex. Crim. App. 1981), a "firearm" is a deadly weapon per se, see Stewart v. State, 532
S.W.2d 349, 350 (Tex. Crim. App. 1976), and a "handgun" is a deadly weapon per se,
see Dade v. State, 622 S.W.2d 580, 581 (Tex. Crim. App. 1981).   
	The State argues that although the indictment did not allege the specific murder
weapon used in shooting Pamela, the indictment alleged a death and means related to some
weapon.  Thus, it concludes, the jury made an explicit finding that appellant used a deadly
weapon.  We disagree.  While it might be argued that the use of the word "shooting" in
the indictment might mean some use of a firearm, a pistol, or a hand gun, all deadly
weapons per se, it is equally reasonable to assume that it means the use of a "gun", which
is not a deadly weapon per se.  Under the present state of the law, we can only conclude
the trial court erred in making the affirmative deadly weapon finding.  Appellant's
sixteenth issue is sustained.  That sustention requires us to modify the trial court's
judgment to delete all references to the use of a deadly weapon. See Tex. R. App. P.
43.2(b).
	In summary, all of appellant's issues are overruled except his sixteenth issue which
is granted.  The trial court judgment is modified to delete all reference to the use of a
deadly weapon.  As modified, the judgment is AFFIRMED.
 
								___________________________
									  JOHN T. BOYD (3)
										Justice

Submitted on May 13, 2003
Opinion Delivered August 28, 2003
Publish

Before Burgess, Gaultney and Boyd, JJ.
CONCURRING OPINION

	I concur.  But respectfully I write separately because I question the rationale of
Boyett and the need to strike the deadly weapon finding in this murder case.  See Boyett
v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985).
	Any object used to cause death is a deadly weapon.  See Tex. Pen. Code Ann. §
1.07(a)(17)(B) (Vernon 2003)("Deadly weapon" means "anything that in the manner of
its use or intended use is capable of causing death or serious bodily injury.").  In a
homicide involving a "shooting," the instrumentality of death is a deadly weapon, because
it is something that actually caused a death.  The Court of Criminal Appeals has held that
an indictment charging the accused with causing death by use of any instrument is
sufficient notice of the State's intent to seek a deadly weapon finding.  See Ex parte
McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App.1992) (indictment alleging death caused
by motor vehicle provided notice of intent to seek affirmative finding of use of deadly
weapon in an involuntary manslaughter case) (citing Ex parte Beck, 769 S.W.2d 525, 526-28 (Tex. Crim. App. 1989)). Likewise, the Court of Criminal Appeals has said that
anything actually used to cause the death of a human being is a deadly weapon for purpose
of supporting a jury's deadly weapon finding.  See Tyra v. State, 897 S.W.2d 796, 798
(Tex. Crim. App. 1995) (approving deadly weapon finding in involuntary manslaughter
case where a driver, by reason of operating a motor vehicle while intoxicated, caused the
death of an individual).  In contrast, Boyett unequivocally held that a jury's finding -- that
the accused committed voluntary manslaughter "as alleged in the indictment" -- could not
be considered an affirmative finding of the use of a deadly weapon where the indictment
alleged that the accused caused the victim's death "by shooting him with a gun." 
Boyett, 692 S.W.2d at 517.  If an indictment allegation provides sufficient notice of the
State's intent to seek an affirmative finding, and if the evidence will support an affirmative
finding, why does that same indictment by reference in the jury's verdict not function as
an express deadly weapon finding?  And, as here, where the jury finds a death was caused
by shooting, how can the finding be anything other than that a deadly weapon was used? 
But Boyett holds otherwise.  Id. at 517.  As an intermediate appellate court we are bound
by Boyett.  Because murder is a "3g" offense, the deadly weapon finding may seem
irrelevant.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon 2003).  But a
court should not be required to strike the judgment's deadly weapon finding when the
indictment says the defendant intentionally and knowingly caused the death of Pamela
Dorsey by "shooting her," and the jury found defendant guilty as charged in the
indictment.  It seems inconsistent with reason and the cited case law to do so.  I believe
the holding in Boyett should be reconsidered.  
							_______________________________
								DAVID B. GAULTNEY
									  Justice

Concurrence Delivered
August 28, 2003
1. In the first trial, appellant's conviction was reversed by the Beaumont Court of
Appeals.  See Dorsey v. State, 24 S.W.3d 921, 930 (Tex. App.-Beaumont 2000, no pet.).
2. The jury did not hear the audio on the videotape.
3. The Honorable John T. Boyd, sitting by assignment pursuant to Tex. Gov't Code
Ann. § 74.003(b) (Vernon 1998).
