                                        In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                               ________________
                                 NO. 09-12-00241-CR
                               ________________

                  CHRISTOPHER MICHAEL BROWN, Appellant

                                          V.

                     THE STATE OF TEXAS, Appellee
________________________________________________________________________

                 On Appeal from the Criminal District Court
                          Jefferson County, Texas
                         Trial Cause No. 10-10220
________________________________________________________________________

                              MEMORANDUM OPINION

       A jury convicted appellant Christopher Michael Brown of murder and assessed

punishment at ninety-nine years of confinement and a fine of $10,000. In two appellate

issues, Brown argues that the trial court erred by admitting extraneous offense evidence

and permitting the State to “inject appellant’s general reputation before the jury as

character evidence, when appellant had not placed such reputation [at] issue.” We affirm

the trial court’s judgment.




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                                       BACKGROUND

      Michael Guidry testified that he is incarcerated after being charged with the same

murder as Brown and another co-defendant, Isa Lomax. Guidry testified about the

shooting involving Lomax and Brown at 1970 East Lucas. Guidry explained that on the

day of the shooting he went to the hospital with Lomax to visit Brown’s cousin, Cory,

who had been shot by an unknown assailant. According to Guidry, Brown was present at

the hospital. Guidry learned that Cory was to be treated and released, and Guidry and

Lomax went to Cory’s grandmother’s home on Glasshouse Street. Brown was also

present at the Glasshouse residence.

      Brown told Guidry who he believed Cory’s assailant was, offered to buy Guidry

gas, and convinced Guidry to take him to the Lucas house where Brown believed the

shooter was located. Guidry testified that the Lucas house was directly across from the

Honey Stop, a convenience store. Guidry testified that he stopped at the gas pump at the

Honey Stop, and went in to pay while Lomax went across the street to the Lucas house to

see if anyone was home. Guidry flagged down an individual named Eddie, and Eddie

pulled into the Honey Stop to talk to Guidry and Brown. When Lomax returned from the

Lucas residence, he told Brown that a female peeked out the window of the residence but

did not answer the door, and Lomax did not see a car at the residence. Eddie told Lomax

and Guidry that he knew who lived at the residence. Guidry testified that Brown and




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Lomax got out of Guidry’s truck and approached the Lucas house, after which Guidry

heard multiple gunshots.

       Guidry attempted to leave, but Lomax and Brown ran back to Guidry’s truck.

According to Guidry, Brown had a shirt in his hands, and a .40-caliber gun was wrapped

in the shirt.   Brown instructed Guidry to depart; Guidry dropped Brown off on

Glasshouse Street, but before Brown got out of the truck, Brown gave Guidry the gun and

told Guidry to “get rid of it.” Guidry put the gun in a pillowcase, wrapped it in a trash

bag, and later hid the gun “under the back step under the back porch.” Guidry testified

that Lomax had a .22 caliber gun, which Guidry had previously given to Lomax. Lomax

returned the gun to Guidry after Guidry had dropped Brown off. Guidry put this gun

with the other gun inside the pillowcase and trash bag.            Guidry and Lomax were

subsequently arrested and Guidry gave a statement to the authorities about what had

transpired, eventually providing the location of the murder weapons and the identity of

the shooters.   Guidry explained that he did not want to “tell on” Brown because

“[s]nitches get stitches.” Guidry testified that he did not see Brown again until four or

five months later at the Jefferson County Correctional Facility.

       Lomax testified that he was currently incarcerated on a pending murder charge,

and Brown and Guidry are his co-defendants. Lomax testified that early in the morning

on the day of the offense, he learned that Cory had been shot, so he went to Guidry’s

house and awakened Guidry and Guidry took him to the hospital to see Cory. When


                                             3
Guidry and Lomax arrived at the hospital, they also saw Brown.        When Cory was

released from the hospital, Guidry and Lomax followed Cory to the Glasshouse

residence, and Brown was also there.

      Lomax, Guidry, and Brown eventually left in a white truck with Guidry at the

wheel. Lomax testified that when they stopped at the Honey Stop, Brown asked Lomax

to knock on the door of the Lucas residence and Lomax did so. Lomax testified that

Brown told him that someone at the house owed him money, and Brown could not go to

the house because the occupants would not answer the door. According to Lomax, no

one answered the door of the residence when he knocked, but a woman peeked through

the door. Lomax knew the woman as Martisha Landry. Lomax explained that he,

Guidry, and Brown eventually drove to the house, and Brown got out and began talking

on his cell phone. According to Lomax, Brown got back in the truck, and they returned

to the Honey Stop.

      Lomax testified that he and Brown again approached the house, and although

Lomax did not see Brown with a weapon, Lomax admitted that he had a .22-caliber gun.

Lomax saw Landry come outside, after which Brown began shooting the gun while

standing in the doorway of the house. Lomax heard multiple rapid gunshots. Lomax saw

a man inside the house, and the man was jumping up and down and screaming. Lomax

testified that he wanted to run, but he feared that Brown would believe Lomax was going




                                          4
to “tell” and shoot Lomax. According to Lomax, Brown was a member of the Blood

gang.

          Lomax testified that after Brown shot the man, he told Lomax to come with him,

and the two men got into Guidry’s truck and left the scene. Lomax saw Brown holding a

white towel, and when asked what was inside the towel, he testified, “I guess it was the

gun that [Brown] was shooting.” According to Lomax, Brown told Guidry to get rid of

the gun. Lomax testified that they took Brown back to Glasshouse Street. Lomax

testified that after his arrest, he gave three different statements to the police because he

feared that Brown, who was on the run, might harm Lomax’s family in retaliation.

Lomax also explained that when he was incarcerated with Brown, Brown “told me that I

was a snitch. He was going to pay somebody to do me something and other things like

that.” Defense counsel did not object. Lomax further explained, “I didn’t want my

family [at] risk knowing that [Brown] had just killed somebody, sir[,]” and Lomax

explained that he conveyed his fear of Brown to detectives. Defense counsel did not

object.

          Edward Godfrey testified that on the day of the offense, Guidry flagged him down

as he was driving past the Honey Stop. Godfrey testified that Guidry was driving a white

dually truck, and Guidry was pumping gas at the Honey Stop. According to Godfrey,

Lomax had approached a house belonging to Godfrey’s cousin, Landry.                Godfrey




                                              5
explained that the house was directly across the street from the Honey Stop. Godfrey

eventually saw Lomax return to the truck Guidry was driving.

       At some point, Godfrey became suspicious of the situation and concerned about

Landry’s welfare, so he returned to Landry’s house, pulled into her driveway, and entered

the house where Landry and her boyfriend, the victim, were staying. Godfrey and

Landry eventually went to Godfrey’s car for a cigarette, and Godfrey subsequently saw

Brown and Lomax approach the house. Godfrey testified that he did not see anything,

but he heard multiple gunshots when he saw Brown go to the front door of the house.

Godfrey pulled away from the house with Landry in the backseat of his truck. Landry

jumped out of the truck and ran back toward her house, and Godfrey drove to his

fiancee’s house. When asked whether he told the police that he knew who approached

Landry’s house, he testified, “No, I did not. . . . Man, stitches. It ain’t what’s happening

in the neighborhood. I wasn’t going to tell them. . . . Because by me telling that, he will

probably put my family at stake, jeopardize my family.” When asked what his concerns

were about telling the police who he saw going to Landry’s house when he heard the

gunshots, Godfrey testified, “Retaliation. Retaliation.” Defense counsel did not object.

During cross-examination, defense counsel asked the following:

       Q.      Now, anywhere in the statement here, did you ever say, “Man, I
       don’t want to talk to you because of retaliation” or “Chris Brown is going
       to threaten me or my family” or anything like that? Did you say that to the
       police? . . .
       Q.      Did you say anything to the police about the retaliation and things
       like that?

                                             6
      A.     I didn’t tell – no, I didn’t.

During the State’s redirect examination of Godfrey, the following colloquy occurred:

      Q.      Ed, defense counsel was just asking you about why you don’t have
      in your statement that you were concerned about retaliation. Do you
      remember that?
      A.      Yes, sir.
      Q.      You know the defendant?
      A.      Yes, I do.
      Q.      Do you think he’s capable of that type of retaliation?
      A.      Yes. He’s trying to send somebody to do me something now. He
      been –
              [Defense counsel]: Objection, Your Honor.
      A.      –that’s the only reason – I wasn’t going to be involved.
              THE COURT: Hold on. There is an objection that’s been made.
              [Defense counsel]: Can we approach the bench?
                           (Bench Discussion Outside Hearing of the Jury)
              [Defense counsel]: I’m going to object. It’s an extraneous offense
      that I was not given prior notice to. [sic] This is on the State’s questioning;
      and they are eliciting, I guess, other acts that we had no knowledge of. So,
      I’m going to object to anything like that and ask that if you sustain it, that
      you will advise the jury to disregard it.
              [Prosecutor]: He on cross was asking him about this allegation of
      retaliation. I should have an opportunity to address those.
              THE COURT: Your objection is overruled. You opened the door.
               [Defense counsel]: Just for the record, I had on cross because he
      opened the door on direct in reference to retaliation on the State’s cross.
      They were the ones that opened the door on this.
              THE COURT: I didn’t hear you raise an objection to it or approach.
              [Defense counsel]: My objection is, Judge, is now he’s saying that
      he’s now coming with another criminal offense and that is sending out a hit
      to his family and I’m objecting to that, that I know now that he’s got a hit
      out for me, and I’m objecting to that.
              THE COURT: All right. Anything else? Your objection is
      overruled.
                               (Bench Discussion Concluded)




                                             7
At the conclusion of Godfrey’s testimony, the Court stated as follows:

               THE COURT: Okay. I’m reflecting upon [defense counsel]’s earlier
       objection. Again, I’m going to stand by the objection concerning the
       answer about retaliation that you asked. I’m going to stand by the Court’s
       ruling on the objection he made. The Court deems it to be admissible – for
       that answer to be admissible to that question because the defense not only
       opened the door but under Rule 404(b), that such evidence, including
       evidence of threats or coercion by includes [sic] a witness is admissible to
       anxiousness or guilt under Rule 404(b). In the mix, [defense counsel] has
       requested an instruction to be made and I don’t know if he was basing it
       upon me sustaining the objection or not. I’m overruling the objection but I
       do believe that the rule does allow an instruction to be made to the jury, if
       that’s what you request based upon consciousness of guilt. What do you
       say?
               [Defense counsel]: Judge, in response to what you just said, my
       objection was the other offense that is now sending people out to put
       basically a hit on him and his family. That was my objection that I made.
               THE COURT: But he was under Rule 404, other evidence, okay.
               [Defense counsel]: But the retaliation, too, I respectfully disagree
       that I opened the door on retaliation. The record will reflect whatever it
       reflects, but it was on the State’s case under direct. They opened up the
       door on retaliation.
               [Prosecutor]: His statement was different.
               [Defense counsel]: Well, no. He said retaliation and I asked whether
       or not retaliation was ever reported and I stopped it and then –
               THE COURT: I understand.
               [Defense counsel]: Then he asked again about the retaliation and
       then he comes up with the State’s questions -- . . . .

       Landry testified that when she saw Brown approach her house, she could see “this

little gun thing . . . sticking . . . up in his jeans.” Landry testified that after she saw

Brown go into her house, she heard “[a] lot of” gunshots. According to Landry, Lomax

followed Brown into the house. Landry also testified that Brown and the victim had a

heated argument about a rental car the night before the shooting, and Brown threatened


                                            8
the victim. Without objection from defense counsel, Landry testified that when she first

spoke to the authorities, she did not identify Brown as the shooter because she was afraid

of Brown.

       Precious Wrighting testified that she had previously been married to Brown, and

although the marriage ended in divorce, she and Brown began another romantic

relationship years later. Wrighting and Brown were romantically involved on the day of

the offense. Wrighting recalled learning on the day of the offense that Brown’s cousin

Cory had been shot, and Wrighting accompanied Brown to the hospital to visit Cory.

       After the hospital visit, Wrighting and Brown went to the Glasshouse residence.

At some point, Wrighting learned that Brown had left the house with other individuals.

Wrighting testified that she left the Glasshouse residence for a doctor’s appointment, and

returned to her own home afterward. According to Wrighting, when Brown returned to

Wrighting’s house, he told Wrighting that he, Guidry, and Lomax had gone to “that guy’s

house” and “[Lomax] was supposed to knock on the door and [Brown] killed him.”

Brown told Wrighting he had shot and killed the victim, and Brown asked Wrighting to

provide an alibi for him by saying he was with her at the doctor’s office. According to

Wrighting, Brown later told her that he was leaving to go on the run, and that he would

contact her. Wrighting explained that she next had direct contact with Brown when he

called her after his arrest in Houston. Wrighting testified that she decided to cooperate

with the authorities “[b]ecause I feel like it’s the right thing to do and I feel like if he can


                                               9
knock on somebody’s door and do something to them[,] he can come knock on my door

and do it to me because I don’t want to have nothing else to do with him.” Counsel did

not object to Wrighting’s testimony.

       Sue Kelly, an I.D. Technician with the Beaumont Police Department (“BPD”)

crime scene unit, testified that on the date of the offense, she was dispatched to a

residence at 1970 East Lucas. Upon arriving at the scene, she saw the emergency

medical services personnel assisting a black male gunshot victim who was lying in the

front doorway. Kelly collected bullets, bullet casings, slugs, and fragments, and she

turned them over to the laboratory for ballistic analysis. Kelly explained that the casings

recovered from the residence were all from a .40-caliber gun.

       Kelly also attended the autopsy of the victim’s body, which was conducted by a

forensic pathologist. According to Kelly, the pathologist recovered bullet fragments and

slugs from the victim’s body and turned them over to Kelly. Kelly forwarded bullets and

fragments recovered from the victim’s body to the crime lab for ballistic analysis.

       Kelly testified that she subsequently returned to the residence to search for

additional evidence after two suspects volunteered information to detectives concerning

the location of the weapons used during the offense. Kelly explained that she returned to

search for ammunition that might have been fired from something other than a .40-caliber

weapon, but that the only other ammunition she found was from a .40-caliber weapon.

Kelly forwarded the additional ammunition to the crime lab for ballistic analysis. While


                                            10
at the residence, Kelly also performed a trajectory analysis based on the location of the

gunshots. According to Kelly, the trajectory analysis indicated that “the shooter had to be

somewhere in the vicinity of the front door[,]” the victim’s body was just inside the front

door, and the bullets were being fired from “high to low.”

       The doctor, who testified that he performed an autopsy on the victim, testified that

the victim had twelve gunshot wounds, and that three bullets were recovered during the

autopsy. Based upon the internal and external examination of the victim during the

autopsy, he concluded that the cause of the victim’s death was multiple gunshot wounds,

and the manner of death was homicide.

                                   BROWN’S ISSUES

       In his first issue, Brown argues that the trial court erred by admitting extraneous

offense evidence. In his second issue, Brown contends the trial erred by permitting the

State to place his general reputation before the jury as character evidence when he had

not placed his general reputation at issue. Specifically, Brown complains of Godfrey’s

testimony that Brown had been trying to send someone to harm Godfrey and Godfrey’s

family. Brown maintains that the defense did not open the door to testimony concerning

fears of retaliation at the time of trial. Brown argues his two issues together in his brief,

and we will address them together.

       We review the trial court’s decision to admit evidence under an abuse of discretion

standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). Rule 404(b) of


                                             11
the Texas Rules of Evidence prohibits the admission of extraneous offenses to prove a

person’s character or to show that the person acted in conformity with that character.

Tex. R. Evid. 404(b).     However, when a party “opens the door,” evidence that is

otherwise inadmissible may become admissible. Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). In addition, extraneous-offense evidence may be admissible

when it has relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011). Extraneous offenses may be admissible for some other

purpose, such as to show motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery v. State,

810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g).            Evidence that may

otherwise be inadmissible under Rule 404(b) may be admitted to rebut a defensive

theory. Williams, 301 S.W.3d at 687. Rule 404(b) is a rule of inclusion, not exclusion,

and it excludes only evidence that is offered solely to prove bad character and, therefore,

conduct in conformity with that bad character. De La Paz v. State, 279 S.W.3d 336, 343

(Tex. Crim. App. 2009) (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App.

1996)).

       To preserve error in admitting evidence, a party must make a proper objection and

obtain a ruling on that objection. Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim.

App. 2002); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). “In addition, a

party must object each time the inadmissible evidence is offered or obtain a running


                                            12
objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). An error, if

any, in the admission of evidence is cured when the same evidence comes in elsewhere

without objection, either before or after the complained-of ruling. See Lane v. State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004). “Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is affected[.]”

Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b). We will not overturn a conviction if,

after an examination of the record as a whole, we have fair assurance that the error did

not influence the jury or had but slight effect. Taylor v. State, 268 S.W.3d 571, 592 (Tex.

Crim. App. 2008).

       As previously discussed, prior to the complained-of testimony by Godfrey, Guidry

had testified that he did not want to tell the authorities about Brown’s involvement in the

offense because “[s]nitches get stitches.” Prior to Godfrey’s testimony, Lomax had

testified that he gave three different statements to the police because he feared that Brown

would harm Lomax’s family in retaliation, and that while Lomax was incarcerated with

Brown, Brown threatened to pay someone to harm Lomax. In addition, after Godfrey’s

testimony, Wrighting testified without objection that she came forward with what she

knew about Brown’s involvement because she feared that Brown would harm her

because she no longer wanted to be involved with him. Therefore, we conclude that any

error in the admission of the complained-of testimony by Godfrey was cured when the

same type of evidence concerning witnesses’ fear of Brown was admitted elsewhere


                                            13
without objection, both before and after the complained-of ruling. See Lane, 151 S.W.3d

at 193. Furthermore, after examining the record as a whole, we have fair assurance that

the error, if any, did not influence the jury, or had but slight effect. See Taylor, 268

S.W.3d at 592. Accordingly, we overrule Brown’s issues and affirm the trial court’s

judgment.

      AFFIRMED.



                                                 ________________________________
                                                        STEVE McKEITHEN
                                                            Chief Justice



Submitted on December 27, 2012
Opinion Delivered February 6, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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