
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





ON REMAND



NO. 03-97-00240-CR


Christopher Michael Tate, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 46,699, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING






On original submission, this Court affirmed appellant Christopher Michael Tate's
conviction for murder.  Tate v. State, 956 S.W.2d 845 (Tex. App.--Austin 1997); see Tex. Penal
Code Ann. § 19.02(b)(2) (West 1994).  The court of criminal appeals reversed our judgment after
concluding that certain defensive evidence was erroneously excluded by the district court and that
this Court erred by holding otherwise.  Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998). 
The appeal was remanded to us to conduct a harm analysis.  Id. at 193.  We will again affirm.


Background
Tate fatally stabbed Michael Neal Rackley, the father of his live-in girlfriend,
Jessica Windham.  The stabbing was the culmination of an argument between Tate and Rackley,
both of whom had been drinking.  Tate testified that he acted in self-defense, and that issue was
submitted to the jury.  See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (West 1994 & Supp. 1999)
(use of deadly force in self-defense).  The jury concluded that the killing was not justified.
In his only point of error, Tate contended the district court erroneously excluded
the testimony of Tate's aunt, Brenda Turner Glen.  Glen would have testified to a conversation
she had with Rackley about two months before his fatal encounter with Tate.  Referring to the
many arguments between his daughter and Tate, Rackley told Glen "he was getting tired of all the
animosity that was in the family. . . .  He was getting tired of Jessica calling wolf every time
something happened and he was getting tired of having to deal with it.  And he said it's going to
cause me to have to kill the little son of a bitch some day."  Tate was not aware of this remark.
In his brief to this Court on original submission, Tate argued that Glen's testimony
was admissible under what we called the Dempsey line of authority.  See Dempsey v. State, 266
S.W.2d 875, 877 (Tex. Crim. App. 1954).  Dempsey and subsequent opinions held that in a
homicide case in which there is evidence of aggression by the deceased that raises the issue of self-defense, the defendant may introduce evidence of the deceased's violent character, and evidence
of prior acts of violent misconduct (or threats of violence) by the deceased which illustrate his
violent character, either (1) to support the defendant's claim that he reasonably believed the force
he used was immediately necessary to protect himself, or (2) to support the defendant's claim that
the deceased was the aggressor.  See Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App.
1989); Thompson v. State, 659 S.W.2d 649, 653-54 (Tex. Crim. App. 1983); Dempsey, 266
S.W.2d at 877-78.  We held that Rackley's remark that he might "have to kill the little son of a
bitch" was not relevant to show the reasonableness of Tate's claimed apprehension of danger
because the remark had not been communicated to him, but we agreed with Tate that the remark
was relevant to support his claim that Rackley had been the aggressor.  Tate, 956 S.W.2d at 847-48.  We further held, however, that the holding in Dempsey and its progeny had been limited by
the rules of evidence. (1)  Under the rules, a person's character may usually be proved only by
reputation or opinion testimony.  Tex. R. Evid. 405(a).  Evidence of other crimes, wrongs, or acts
may not be used as character conformity evidence.  Tex. R. Evid. 404(b).  We concluded that
under rule 404(b), evidence of the threat was not admissible to prove Rackley's aggressive
character and that the district court did not err by excluding the threatening remark.  Tate, 956
S.W.2d at 848.
On Tate's petition for discretionary review, the court of criminal appeals agreed
with our holding that the threatening remark was not admissible to prove Rackley's aggressive
character.  

We . . . agree that Rules 404(a) and 405(a) specifically disallow particular acts of
the victim to demonstrate character.  The Dempsey line of cases stands for the
proposition that reputation or specific act evidence is admissible to show a victim's
character . . . . However, this common law rule, as it developed, cannot be
reconciled with the specific language of the relevant rules of evidence.


Tate, 981 S.W.2d at 192.  The court went on, however, to hold that Rackley's threatening remark
was admissible under a theory Tate did not advance in this Court.  Noting that rule 404(b) permits
evidence of specific conduct for purposes other than to show character, the court wrote:

[T]he evidence of this uncommunicated threat by Rackley, allegedly made only a
month or two before Rackley's death, had relevance beyond its tendency to
demonstrate Rackley's character.  A reasonable jury could have believed this
evidence shed light upon Rackley's state of mind when he arrived at appellant's
house on the night in question . . . .  In other words, the statement . . . was
probative of his state of mind and possibly indicated a motive or demonstration of
intent behind the confrontation that evening.  In sum, Glen's testimony concerning
Rackley's threat was probative of whether he was, in fact, the aggressor and
admissible for "other purposes" besides demonstrating character and actions in
conformity therewith.


Id. at 193.  Thus, the court concluded that the exclusion of the testimony was error and remanded
the appeal to us for a harm analysis.  Id.

Standard of review
A constitutional error that is subject to harmless error review requires reversal
unless the appellate court determines beyond a reasonable doubt that the error did not contribute
to the conviction or punishment.  Tex. R. App. P. 44.2(a).  Any other error that does not affect
a substantial right must be disregarded.  Tex. R. App. P. 44.2(b); and see Tex. R. Evid. 103(a) 
The court of criminal appeals did not specify whether we are to apply rule 44.2(a) or rule 44.2(b)
to the error it found in this cause.
Tate argues that the exclusion of the testimony regarding Rackley's threat was
constitutional error.  He relies on the indisputable proposition that a defendant has a constitutional
right to call witnesses and offer evidence in his own behalf.  See Washington v. Texas, 388 U.S.
14, 19 (1967); Brazelton v. State, 947 S.W.2d 644, 650 (Tex. App.--Fort Worth 1997, no pet.);
Hernandez v. State, 897 S.W.2d 488, 493 (Tex. App.--Tyler 1995, no pet.).  From this, Tate
leaps to the conclusion that constitutional error is committed whenever a trial court erroneously
excludes defensive evidence.  The cited opinions do not support this broad reading of rule 44.2. 
In fact, none of them addresses the harmless error rule.  Under Tate's reasoning, every trial error
would be a constitutional error under rule 44.2 because criminal defendants are constitutionally
guaranteed a fair trial.
The court of criminal appeals was recently called upon to apply rule 44.2 to jury
selection error.  Jones v. State, 982 S.W.2d 386, 390-91 (Tex. Crim. App. 1998).  While
acknowledging that constitutional provisions bear on the selection of a jury to try a criminal case,
the court observed that the constitutional right to trial by an impartial jury is not violated by every
jury selection error.  Id.  The court held that because the error in that case was merely a mistaken
application of article 35.16(b)(3), the error was not of constitutional dimension.  Id.; see Tex.
Code Crim. Proc. Ann. art. 35.16(b)(3) (West Supp. 1999). 
A constitutional error within the meaning of rule 44.2(a) is an error that directly
offends against the United States or Texas constitution, without regard to any statute or rule that
might also apply.  With respect to the erroneous admission or exclusion of evidence, constitutional
error is presented only if the correct ruling was constitutionally required.  A mere misapplication
of the rules of evidence is not constitutional error.  Both the court of criminal appeals and this
Court have treated a violation of the evidentiary rules that results in the erroneous admission of
evidence as nonconstitutional error.  Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Galvez v. State, 962 S.W.2d
203, 207 (Tex. App.--Austin 1998, pet. ref'd).  Similarly, the erroneous exclusion of defensive
evidence is not constitutional error if the trial court's ruling merely offends the rules of evidence. 
The court of criminal appeals did not hold that Tate was constitutionally entitled
to offer Glen's testimony.  In fact, neither federal nor state constitution is cited in the court's
opinion.  Instead, the opinion discusses the rules of evidence at length and agrees that the
threatening remark was not admissible as character evidence, but concludes that the threat was
admissible under rule 404(b) as evidence of Rackley's state of mind or intent on the night he was
killed.  Because the court of criminal appeals held only that Tate was entitled to offer Glen's
testimony pursuant to rule 404(b), we conclude that constitutional error is not presented and that
the error must be disregarded unless a substantial right was affected.

Substantial right not affected
A substantial right is affected when the error had a substantial and injurious effect
or influence in determining the jury's verdict.  King, 953 S.W.2d at 271.  A criminal conviction
should not be overturned for nonconstitutional error if the appellate court, after examining the
record as a whole, has fair assurance that the error did not influence the jury, or had but a slight
effect.  Johnson, 967 S.W.2d at 417 (citing King).
Rackley's statement that he "might have to kill" Tate was admissible as evidence
of Rackley's intent or motive to cause Tate harm on the night in question.  Tate, 981 S.W.2d at
193.  Evidence that Rackley had such a motive or intent tends to support Tate's claim that Rackley
was the aggressor.  Id.  But even if we assume that the jury would have taken Rackley's remark
at face value, the erroneous exclusion of the remark did not affect Tate's substantial rights under
the circumstances shown by this record.
The jury was properly instructed to sustain Tate's claim of self-defense if it found
or had a reasonable doubt that Tate reasonably believed deadly force was immediately necessary
to protect himself against Rackley's use or attempted use of unlawful deadly force.  See Penal
Code § 9.32(a)(3)(A).  The evidence shows that after Rackley arrived at Tate's trailer, he called
to Tate to come outside and threatened to "whip [Tate's] ass."  Tate testified that when he first
went outside, Rackley cursed and threatened him, then "started swinging at me."  There is no
evidence that Rackley was armed.  When Tate reentered the trailer, Rackley did not pursue him. 
After arming himself with the knife, Tate returned to the porch where Rackley was waiting. 
According to Tate, Rackley "drug me down to my knees" and "was hitting me."  It was then, said
Tate, that he stabbed Rackley "just to get him off of me."  Tate testified that Rackley was
"threatening my life, telling me he was going to kill me," but there is no evidence that Rackley
used deadly force during his fight with Tate. 
Tate argues that the exclusion of Rackley's threat "allowed [the State] to paint for
the jury a picture of no aggression on the part of the deceased."  This assertion is factually wrong;
there was evidence that Rackley was belligerent and aggressive on the night in question.  Tate
further argues that without evidence of Rackley's earlier threat to kill him, the State was able "to
belittle [Tate's] effort to show that the fear of being seriously injured or even killed was a
reasonable belief . . . ."  This assertion is legally wrong; because Tate did not know about the
threat, it was not admissible to prove that Tate reasonably believed the force he used was
necessary, but only to prove that Rackley was the aggressor.  Tate, 981 S.W.2d at 192-93. 
Finally, Tate argues that had the threatening remark been properly admitted, the State could not
have argued to the jury that there was no evidence Rackley used deadly force.  We fail to see why
this would be so; evidence that Rackley threatened to kill Tate two months earlier is not evidence
Rackley used deadly force on the night he was killed. 
The absence of any evidence that Rackley used deadly force against Tate convinces
us that the erroneous exclusion of Glen's testimony did not have a substantial and injurious effect
or influence in determining the jury's verdict rejecting Tate's self-defense claim.  See King, 953
S.W.2d at 271.  On this record, there is a fair assurance that the error did not influence the jury,
or had but a slight effect.  See Johnson, 967 S.W.2d at 417.  Because we find that the error did
not affect a substantial right, we again overrule the point of error.  See Rule 44.2(b).
The judgment of conviction is affirmed.


  
				B. A. Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Powers*
Affirmed on Remand
Filed:   March 11, 1999
Publish







*	Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.        In our original opinion, we cited the rules of criminal evidence then in effect.  The present
rules of evidence are identical in all relevant respects.

 or had but a slight
effect.  Johnson, 967 S.W.2d at 417 (citing King).
Rackley's statement that he "might have to kill" Tate was admissible as evidence
of Rackley's intent or motive to cause Tate harm on the night in question.  Tate, 981 S.W.2d at
193.  Evidence that Rackley had such a motive or intent tends to support Tate's claim that Rackley
was the aggressor.  Id.  But even if we assume that the jury would have taken Rackley's remark
at face value, the erroneous exclusion of the remark did not affect Tate's substantial rights under
the circumstances shown by this record.
The jury was properly instructed to sustain Tate's claim of self-defense if it found
or had a reasonable doubt that Tate reasonably believed deadly force was immediately necessary
to protect himself against Rackley's use or attempted use of unlawful deadly force.  See Penal
Code § 9.32(a)(3)(A).  The evidence shows that after Rackley arrived at Tate's trailer, he called
to Tate to come outside and threatened to "whip [Tate's] ass."  Tate testified that when he first
went outside, Rackley cursed and threatened him, then "started swinging at me."  There is no
evidence that Rackley was armed.  When Tate reentered the trailer, Rackley did not pursue him. 
After arming himself with the knife, Tate returned to the porch where Rackley was waiting. 
According to Tate, Rackley "drug me down to my knees" and "was hitting me."  It was then, said
Tate, that he stabbed Rackley "just to get him off of me."  Tate testified that Rackley was
"threatening my life, telling me he was going to kill me," but there is no evidence that Rackley
used deadly force during his fight with Tate. 
Tate argues that the exclusion of Rackley's threat "allowed [the State] to paint for
the jury a picture of no aggression on the part of the deceased."  This assertion is factually wrong;
there was evidence that Rackley was belligerent and aggressive on the night in question.  Tate
further argues that without evidence of Rackley's earlier threat to kill him, the State was able "to
belittle [Tate's] effort to show that the fear of being seriously injured or even killed was a
reasonable belief . . . ."  This assertion is legally wrong; because Tate did not know about the
threat, it was not admissible to prove that Tate reasonably believed the force he used was
necessary, but only to prove that Rackley was the aggressor.  Tate, 981 S.W.2d at 192-93. 
Finally, Tate argues that had the threatening remark been properly admitted, the State could not
have argued to the jury that there was no evidence Rackley used deadly force.  We fail to see why
this would be so; evidence that Rackley threatened to kill Tate two months earlier is not evidence
Rackley used deadly force on the night he was killed. 
The absence of any evidence that Rackley used deadly force against Tate convinces
us that the erroneous exclusion of Glen's testimony did not have a substantial and injurious effect
or influence in determining the