                          COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                                 NO. 02-18-00145-CR


SAVANNA MCINTARE                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE

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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                      TRIAL COURT NO. CR12692

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                          MEMORANDUM OPINION1

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      Appellant Savanna McIntare appeals her conviction for murder. In two

points, she argues that the trial court erred by (1) excluding the testimony of two

police officers concerning statements her daughter made to a forensic

interviewer and (2) allowing the jury to separate during deliberations. We affirm

the trial court’s judgment.



      1
       See Tex. R. App. P. 47.4.
                               Summary of the Evidence

       Because Appellant does not contest the sufficiency of the evidence to

support her conviction, we will summarize the evidence to the extent necessary

to contextualize her points.

       The record shows that Appellant shot the victim—her husband, Don

McIntare—twelve times at close range with three different pistols. Appellant

testified at guilt-innocence. She admitted that she shot and killed Don. After

killing Don, Appellant washed up; changed clothes; drove to the bank, a travel

agent, and the airport; and flew to Vietnam. She was arrested upon her return to

DFW Airport several days later.

       Appellant testified that a few days before the shooting, her adult daughter,

JP, told Appellant that Don had been sexually assaulting her for several years.

Appellant testified that immediately before the shooting, she confronted Don with

JP’s allegation. She testified that a scuffle ensued, during which she shot and

killed Don. JP did not testify at trial.2

       During the guilt-innocence phase of trial, Appellant offered the testimony of

two law enforcement officers—investigator T.D. Elam and Texas Ranger Michael


       2
        Neither party called JP as a witness. The record shows that toward the
end of the trial’s guilt-innocence phase, the trial court became aware that JP was
in the courtroom. The court stated that all witnesses had been placed under “the
rule” and that JP would not be allowed to testify if she had been sitting in the
courtroom while other witnesses testified. JP then told the court that if called by
either party, she intended to invoke her Fifth Amendment privilege against self-
incrimination.


                                            2
Stoner—concerning statements the officers overheard JP make to a forensic

interviewer at the Child Advocacy Center (CAC) about having been sexually

assaulted by Don. Appellant made an offer of proof outside the presence of the

jury. The State objected to testimony regarding JP’s out-of-court statements on

hearsay and relevance grounds, and the trial court granted the objection on both

grounds. The exclusion of this testimony forms the basis of Appellant’s first point,

and we will examine the proffered testimony in more detail when we analyze that

point.

         Appellant requested and received a jury instruction on self-defense. The

jury returned a verdict of “guilty” and, after hearing punishment-phase evidence,

assessed punishment at twenty years’ confinement. The trial court rendered

judgment accordingly, and this appeal followed.

                                     Discussion

1.       Exclusion of Elam’s and Stoner’s Testimony

         In her first point, Appellant argues that the exclusion of Elam’s and

Stoner’s testimony about JP’s statement to CAC prevented Appellant from

presenting her self-defense theory. The State argues that the trial court properly

excluded the evidence because it was not relevant, it was hearsay, and it was

inadmissible under Rule of Evidence 403.

         We review a trial court’s rulings on evidentiary objections for an abuse of

discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial

court does not abuse its discretion unless its ruling is arbitrary and unreasonable;


                                          3
the mere fact that a trial court may decide a matter within its discretionary

authority in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.

Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref’d)

(mem. op.). If the trial court’s “evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed.” Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011).

      Only relevant evidence is admissible. Tex. R. Evid. 402. Evidence is

relevant when it makes a fact of consequence more or less probable than it

would be without the evidence. Tex. R. Evid. 401.

      a.     Appellant’s Self-Defense Theory

      Appellant first argues that the excluded testimony was relevant to her self-

defense theory. Appellant contends that if the jury believed that JP told Appellant

that Don had been molesting JP, the jurors could “understand that [Appellant]

acted reasonably in perceiving Don’s attack as a genuine risk of death or serious

bodily injury.” Appellant argues that the excluded testimony—that JP also told a

third party that Don had molested her—makes it more probable that she told

Appellant the same thing, thus bolstering Appellant’s testimony.

      To analyze Appellant’s relevancy argument, we first review the applicable

Penal Code sections on self-defense. A person is justified in using force against

another “when and to the degree the actor reasonably believes the force is

immediately necessary to protect the actor against the other’s use or attempted


                                         4
use of unlawful force.” Tex. Penal Code Ann. § 9.31 (a) (West 2011). A person is

justified in using deadly force against another if the actor would be justified in

using force against the other under § 9.31 and “when and to the degree the actor

reasonably believes the deadly force is immediately necessary . . . to protect the

actor against the other’s use or attempted use of unlawful deadly force.” Id. §

9.32(a)(2)(A) (West 2011). Thus, Appellant’s relevance argument turns on

whether the proffered testimony makes it more probable that she reasonably

believed that deadly force was immediately necessary to protect herself against

Don’s attempted use of unlawful deadly force. See id.

      b.     The Excluded Evidence

      With the applicable Penal Code sections in mind, we next examine

Appellant’s proffered evidence. Outside the presence of the jury, Appellant

elicited the following testimony from Stoner during the State’s case in chief:

             [Counsel] Following your conversation with [Appellant], you
      referred her daughter, [JP,] to have a forensic interview, is that right?

             [Stoner]     I did not do that.

             [Counsel]    Who did that?

             [Stoner]     I believe Detective Elam.

             [Counsel]    Detective Elam?

             [Stoner]     I’m not sure. I know I didn’t make that contact.

             ....

            [Counsel] What action did you take once [Appellant] told
      you that her daughter was sexually abused?


                                          5
     [Stoner]     We -- that happened during an interview, and she
requested an attorney, so we didn’t go any further with that.

     [Counsel] I understand. But you were made aware that a
young girl was sexually abused. I’m asking, what did you do about
it?

       [Stoner]   Nothing further with that. She had already been
interviewed.

      [Counsel]   By who?

      [Stoner]    By [CAC].

      [Counsel]   Okay. And was that a part of this investigation?

      [Stoner]    Yes.

       [Counsel] So between the 21st and the 25th, she had been
interviewed by [CAC], is that what you’re saying?

      [Stoner]    Yes, sir.

      [Counsel] Let’s see. And based on that interview, in the
contents of that interview, did that shape your investigation in any
way?

      [Stoner]    On whose interview?

      [Counsel]   The [CAC] interview. . . .

       [Stoner]     We were working a homicide investigation at the
time. The -- we followed through with the – [CAC] interview, because
that was the natural transition to this investigation.

      ....

      [Counsel] Have you determined if there may be any other
motive during your investigation, besides that Don was molesting
[Appellant’s] daughter?




                                 6
            [Stoner]       We were investigating several motives, financial
      motives, infidelity, any -- any motive available, we were looking into.

            [Counsel] Okay. And -- and based on your investigation, did
      you arrive at one being the most likely?

            [Stoner]     Yes, sir.

            [Counsel]    What’s that?

            [Stoner]     That would be the sexual assault.

             [Counsel] And that would be part of the reason that your
      investigation continued to focus on [Appellant] and it continued to go
      forward as a murder as opposed to something else?

            [Stoner]     Yes, sir.

      Later, during Appellant’s presentation of evidence, she elicited the

following testimony from Elam outside the presence of the jury:

      [Counsel] Investigator Elam, did you see a forensic interview of
      the defendant’s daughter?

      [Elam]      Yes, I did.

      [Counsel]   And what was the subject of the forensic interview?

      [Elam]      It’s just a normal procedure, when there’s allegations
      made, to be interviewed at CAC.

      [Counsel]   Right. But what was discussed during the interview?

      [Elam]     Her home life in generalities and -- and if there was a
      problem between Don McIntare, Sr. and her.

      [Counsel] You’ve been in the room the whole time I’ve been
      talking, right?

      [Elam]      Yes.




                                        7
      [Counsel] Okay. They discussed Don McIntare sexually molesting
      his stepdaughter, [JP], right?

      [Elam]      Yes.

      [Counsel] Okay. And you -- you were present when [JP] made
      those statements.

      [Elam]      Yes.

      [Counsel] And whether they’re true or not, you know that [JP] at
      least said that to the forensic interviewer, and Ranger Stoner was
      present when she said it and you were present.

      [Elam]      Yes, that’s correct.

      [Counsel] So the fact that she was making those statements,
      you’re -- you have personal knowledge that she was making those
      statements.

      [Elam]      Yes.

      [Counsel]   Okay. Whether they’re true or not.

      [Elam]      Correct.

      In summary, Stoner would have testified that CAC interviewed JP and that

Don’s sexual assault of JP was, in Stoner’s opinion, the most likely motive for

Don’s murder. Elam would have testified that he overheard a discussion between

JP and CAC about Don’s sexually abusing JP.3




      3
       Appellant characterizes Elam’s proffered testimony this way: “Upon
Defense Counsel pressing Elam, it became clear that Elam and Stoner heard
[JP] tell the forensic interviewer that Don molested her.” But as the State
observes, Elam did not actually state that JP told the CAC interviewer that Don
had abused her.


                                         8
      c.     Appellant’s State-of-mind Argument

      Appellant argues that JP’s statements to CAC were relevant to her state of

mind when she shot Don. Appellant contends the jury “could have found [her]

perception that Don was a threat more credible because the jury believed [she]

was told that Don sexually abused [JP].” Appellant’s argument comprises two

inferential steps: (1) JP’s statement to CAC makes it more probable that JP also

told Appellant about the abuse and (2) if Appellant reasonably believed that Don

molested JP, then she reasonably believed that Don was using unlawful force

against her at the time of the shooting.

      The problem with Appellant’s argument is the second inferential step.

Nothing in the admitted evidence or excluded testimony suggests a connection

between Don’s alleged sexual abuse of JP and the likelihood that he would use

unlawful force against Appellant when she confronted him about the abuse.

Nothing JP said to Appellant or CAC suggests that Don threatened physical

violence against Appellant or any other person. Further, whatever JP said to

CAC, she said it after Appellant killed Don, so JP’s statements to CAC have no

relevance to Appellant’s state of mind at the time of the shooting.

      In some circumstances, testimony from third persons may be relevant to a

defendant’s state of mind when the defendant claims self-defense. For example,

in Potier v. State, the Court of Criminal Appeals held that a trial court erred by

excluding testimony from the defendant and others that the victim told several

people that he was looking for and intended to hurt and kill the defendant. 68


                                           9
S.W.3d 657, 665–66 (Tex. Crim. App. 2002).4 But Appellant’s case is readily

distinguishable from Potier because there is no evidence JP told Appellant that

Don intended to hurt or kill her. Nor does Elam’s and Stoner’s proffered

testimony suggest that JP made any such statement to CAC.

      To support her state-of-mind argument, Appellant relies on Henderson v.

State, 906 S.W.2d 589 (Tex. App.—El Paso 1995, pet. ref’d). In her brief,

Appellant confuses the facts of Henderson with those of Dyson v. State, 672

S.W.2d 460 (Tex. Crim. App. 1984), which Henderson discusses. See

Henderson, 906 S.W.2d at 595–96. Although both cases are superficially similar

to this case, both are easily distinguishable. Both cases were homicide

prosecutions in which the defendant shot the victim and claimed self-defense or

defense of a third party. Dyson, 672 S.W.2d at 461–62; Henderson, 906 S.W.2d

at 591–92. But in both of those cases, the excluded evidence concerned prior

acts of physical violence committed against the defendant or others. 5 Thus, both


      4
       The court went on to hold that despite the erroneous exclusion of the
evidence, defendant was “not prevented from presenting the substance of his
defense to the jury[,]” and the error was harmless. 68 S.W.3d at 666 (quoting
United States v. Willie, 941 F.2d 1384, 1398–99 (10th Cir.1991) (finding
harmless the exclusion of hearsay materials offered to show the defendant’s
state of mind, cert. denied, 502 U.S. 1106 (1992))).
      5
       In both cases, the prior acts of violence were committed by someone
other than the victim. In Dyson, the defendant claimed he thought the person at
whom he fired his gun was his brother, who had made violent threats against
him. Dyson, 672 S.W.2d at 461–62. In Henderson, the defendant thought her ex-
husband, who had made threats against her, was present at the scene where the
shooting occurred. Henderson, 906 S.W.2d at 593.


                                       10
cases are distinguishable from this case because here the excluded testimony

did not concern prior acts of physical violence committed by Don. Unlike the

excluded testimony in Henderson and Dyson, Stoner’s and Elam’s excluded

testimony has no bearing on whether Appellant reasonably believed Don was

using unlawful force against her when she shot him.

      Because there is no connection between JP’s statements to CAC and the

reasonableness of Appellant’s belief that deadly force was immediately

necessary to protect herself against Don’s attempted use of unlawful force, we

reject Appellant’s argument that Elam’s and Stoner’s proffered testimony was

relevant to show her state of mind when she shot Don.

      Appellant’s Other Relevancy Arguments

      Appellant argues that Elam’s and Stoner’s testimony was relevant for two

additional reasons. First, Appellant argues that Stoner’s proffered testimony was

relevant to show Stoner believed her motive for shooting Don was that Don had

sexually abused JP. In other words, if Stoner thought sexual abuse motivated the

shooting, then Stoner believed JP’s allegations; if Stoner believed JP’s

allegations, then it is more likely that JP made the same allegations to Appellant;

if JP made the abuse allegations to Appellant, it is more probable that Appellant

believed deadly force was necessary to protect herself from Don. Thus, argues

Appellant, what Stoner believed about her motive is relevant to her self-defense

theory.




                                        11
       Motive is not an essential element of a criminal offense, but evidence of

motive is relevant when it fairly tends to raise an inference that the accused had

a motive to commit the crime alleged. Bush v. State, 628 S.W.2d 441, 444 (Tex.

Crim. App. 1982); Bisby v. State, 907 S.W.2d 949, 958 (Tex. App.—Fort Worth

1995, pet. ref’d). Usually, the State is the proponent of motive evidence; this case

is unusual because Appellant offered, rather than objected to, motive evidence.

       In any event, Appellant’s relevancy argument based on motive is flawed for

the same reason as her state-of-mind relevancy argument: whether Stoner

believed Don’s sexual abuse of JP motivated Appellant to kill Don is irrelevant to

Appellant’s belief about the need to use deadly force after she confronted Don.

       Finally, Appellant argues that from the testimony that Elam sent JP to the

CAC interview, “the jury could learn that Elam’s testimony that he merely

collected physical evidence [at the crime scene] was untrue” and that the

excluded testimony would allow the “jury to evaluate [Elam’s] view of the

investigation.” But Appellant fails to explain how the extent of Elam’s

investigation was relevant to any issue before the jury, particularly in light of her

admission that she shot and killed Don.

       We hold that Stoner’s and Elam’s proffered testimony was not relevant to

any issue before the jury; therefore, the trial court did not abuse its discretion by

excluding the evidence. See Tienda, 358 S.W.3d at 638. We overrule Appellant’s

first point.




                                          12
2.    Jury Separation

      In her second point, Appellant argues that the trial court erred by

allowing—over her objection—the jury to separate for lunch during its

deliberations on both guilt-innocence and punishment and that the error was

constitutional. The State concedes that the trial court erred but argues that a

nonconstitutional harm analysis applies.

      While the jury was deliberating on guilt-innocence, the trial court

announced that it intended to allow the jury to separate for lunch and asked

whether either side objected. Appellant objected, but the trial court overruled the

objection and allowed the jury to separate. The same thing happened while the

jury was deliberating on punishment.

      a. Error in Allowing Separation

      The relevant statute is Code of Criminal Procedure article 35.23, which

provides in part:

      The court on its own motion may and on the motion of either party
      shall, after having given its charge to the jury, order that the jury not
      be allowed to separate, after which the jury shall be kept together,
      and not permitted to separate except to the extent of housing female
      jurors separate and apart from male jurors, until a verdict has been
      rendered or the jury finally discharged.

Tex. Code Crim. Proc. Ann. art. 35.23 (West 2006). A trial court errs by allowing

a jury to separate over a defendant’s timely objection. Sanchez v. State, 906

S.W.2d 176, 178 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d).




                                         13
      Here, the trial court allowed the jury to separate for lunch during both guilt-

innocence and punishment deliberations over Appellant’s timely objections.

Therefore, the trial court erred by allowing the jury to separate. See id.

      b. Harm analysis

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. If the

error is constitutional, we apply rule 44.2(a) and reverse unless we determine

beyond a reasonable doubt that the error did not contribute to appellant’s

conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule

44.2(b) and disregard the error if it did not affect appellant’s substantial rights.

Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      When this court last analyzed harm in connection with jury separation

twenty-three years ago, the current Rules of Appellate Procedure, including rule

44.2, had not yet been adopted. See Sanchez, 906 S.W.2d at 180 (analyzing

harm under former rule 81(b)(2)). But several of our sister courts have conducted

jury-separation harm analyses under current rule 44.2, and all of them have

determined that a violation of article 35.23 is a statutory violation, not a

constitutional error. See, e.g., Dixon v. State, 455 S.W.3d 669, 683–84 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d); Polk v. State, 367 S.W.3d 449, 454

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Campbell v. State, 189 S.W.3d

822, 826 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Casias v. State, 36


                                         14
S.W.3d 897, 900 (Tex. App.—Austin 2001, no pet.); see also Rojas v. State, 986

S.W.2d 241, 252 (Tex. Crim. App. 1998) (Keller, J., concurring) (“Because any

error is statutory (failure to comply with Art. 35.23) rather than constitutional, the

proper test for harm is provided by R. 44.2(b) of the Texas Rules of Appellate

Procedure[.]”). Today we join our sister courts and hold that a violation of article

35.23 is a statutory violation, not a constitutional error.

      Because we determine that the error is not constitutional, rule 44.2(b)

applies. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an

error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d

356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998).

      The record reflects that before allowing the jurors to separate for lunch

during guilt-innocence and punishment deliberations, the trial court admonished

the jurors to continue to follow all of the instructions the court had previously

given to them and specifically instructed the jurors not to discuss the case with

anyone and not to resume deliberations until all twelve jurors were assembled in

the jury room.




                                          15
      Appellant’s brief does not address harm under rule 44.2(b). But in her

constitutional-harm argument, appellant suggests that the trial court prevented

her from showing jury misconduct on the record. After the jury returned from

lunch and resumed guilt-innocence deliberations, the jury requested certain

testimony from the trial court. The trial court prepared a response to the jury’s

request, to which appellant made several objections. After defense counsel

objected to the court’s response, the following colloquy occurred:

             [Defense counsel]: . . . I objected earlier to the jurors
      separating. . . . Under 35.23, it’s mandatory that the Court keep the
      jurors together . . . . It’s also my understanding that the jurors trickled
      in after the lunch hour, and jurors were in the jury room, not all 12
      together. I don’t know whether they were given an instruction not to
      deliberate until all 12 were together. I would ask the Court to inquire
      of the court officer and each of the jurors as to the conduct during
      the lunch hour.

             THE COURT: Well, the record will reflect that I gave them that
      instruction, not to begin deliberating until all 12 were reassembled in
      the jury room. . . . I’ll overrule that objection.

As noted above, the record does reflect that the trial court instructed the jury not

to deliberate until all twelve jurors were assembled.

      To the extent appellant suggests that the jurors might have committed jury

misconduct by ignoring the trial court’s instruction and deliberating with fewer

than all twelve jurors present, we note that appellant could have attempted to

support a misconduct argument by obtaining affidavits from jurors or other

persons in a position to know the facts. See Tex. R. App. P. 21.3; Dugard v.

State, 688 S.W.2d 524, 529 (Tex. Crim. App. 1985) (requiring a defendant to



                                          16
support a motion for new trial alleging jury misconduct with affidavits and

explaining policy behind requirement), overruled in part on other grounds by

Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1998). “A defendant is not

entitled to a ‘fishing expedition’ into supposed jury misconduct.” Id. We therefore

reject appellant’s argument that the trial court prevented her from creating a

record for appeal.

      Nothing in the record reflects that the jury failed to follow the trial court’s

instructions. Nor does the record indicate any other harm flowing from allowing

the jurors to separate. See Polk, 367 S.W.3d at 454 (holding violation of article

35.23 harmless when record did not show that jury failed to follow trial court’s

instructions or that other harm occurred from allowing jurors to separate). The

trial court’s error in allowing the jury to separate during deliberations did not

affect a substantial right and was harmless error. See Tex. R. App. P. 44.2(b).

We overrule appellant’s second point.

                                   Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).

                                                    /s/ Wade Birdwell
                                                    WADE BIRDWELL
                                                    JUSTICE

PANEL: WALKER, GABRIEL, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)



                                         17
DELIVERED: June 14, 2018




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