                                 MEMORANDUM OPINION
                                        No. 04-09-00794-CR

                                            Jack Lee KING,
                                               Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-1358
                          Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: February 2, 2011

AFFIRMED

           Jack Lee King was convicted of murder and sentenced to sixty years in prison. In two

issues on appeal, King complains of the trial court’s exclusion of evidence in the guilt-innocence

and in the punishment phases of trial. We affirm the trial court’s judgment.
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                                           DISCUSSION

       Both of King’s issues concern the trial court’s exclusion of evidence. We review a trial

court’s decision to admit or exclude evidence under an abuse of discretion standard. McDonald

v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

       In July 1993, Johnny Perez, the deceased victim, was reported missing. It was not until

2006, that Bexar County Sheriff’s Office Investigator Adrian Ramirez discovered new

information when he began re-interviewing witnesses in connection with Perez’s disappearance.

Through a series of interviews, Investigator Ramirez obtained information about a party at the

Falcon Body Shop in 1993, which Perez and King attended together. Perez was acting drunk,

obnoxious, intimidating, and insulting. At one point, King left the party on foot, but returned

fifteen minutes later. Witnesses stated that after King returned, he shot Perez in the head and then

drove away with Perez in the car with him. Some witnesses stated that King later told them he

had shot Perez and buried the body. King, who testified on his own behalf, said that he was with

Perez that night, but that when they stopped for gas, Perez left with a lady in a brown or maroon

Cutlass. Perez’s body was never found.

       In his first issue, King argues that when the trial court sustained the State’s relevance

objection to the testimony of Debra Negrete, King’s girlfriend, it denied him his constitutional

right to present an alternative perpetrator defense. According to King, Negrete should have been

allowed to testify that Perez had been physically abusive toward her and that he was a drug user.

King argues this testimony indicates Perez had enemies who might have killed him. In other

words, King argues that the possibility of Perez having enemies raised the alternative perpetrator

defense.




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       Before ruling the testimony inadmissible, the trial court listened to Negrete’s testimony

outside the presence of the jury. Negrete testified that Perez had been her boyfriend and was the

father of her child. She stated that Perez had been physically abusive with her to the point of

leaving visible bruises or marks. She also stated that Perez had used drugs but did not sell them.

Further, she testified that she did not know of any enemies Perez had made. The trial court

sustained the State’s objections to relevance.

       In Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002), the Texas Court of

Criminal Appeals considered evidentiary issues as they relate to presenting an alternative

perpetrator defense. The court discussed two ways in which rulings excluding evidence might

rise to the level of violating the constitutional right to present a meaningful defense. See id.

(discussing Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)). The first involves an

evidentiary rule that categorically and arbitrarily prohibits the defendant from offering relevant

evidence that is vital to his defense. Id. The second involves “a trial court’s clearly erroneous

ruling excluding otherwise, relevant, reliable evidence [that] ‘forms such a vital portion of the

case that exclusion effectively precludes the defendant from presenting a defense.’” Id. (quoting

Potier, 68 S.W.3d at 665). The court described this second scenario as one in which “the

erroneous ruling goes to the heart of the defense.” Id. Like this case, in Wiley, the court was

presented with the second scenario.

       In Wiley, the appellant, who was charged with arson, argued the trial court erred in

excluding evidence that a known “fire-starter,” who had been ejected a few days earlier from the

restaurant that burned, stood across the street watching it burn. Id. According to the appellant,

although this known “fire-starter” did not have the intellectual capacity to “set this sophisticated

fire,” he may have assisted someone else in starting the fire. Id. at 406. Thus, the appellant



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argued that “had the jury been permitted to hear evidence that another person could have

committed the offense, they might have entertained a reasonable doubt as to Appellant’s guilt.”

Id. at 405.

        In finding the trial court did not err in excluding the evidence under Texas Rule of

Evidence 403, the Court stated the following:

        In weighing probative value against Rule 403 counterfactors, courts must be
        sensitive to the special problems presented by “alternative perpetrator” evidence.
        Although a defendant obviously has a right to attempt to establish his innocence
        by showing that someone else committed the crime, he still must show that his
        proffered evidence regarding the alleged alternative perpetrator is sufficient, on its
        own or in combination with other evidence in the record, to show a nexus
        between the crime charged and the alleged “alternative perpetrator.”

Id. at 406. The court found the evidence suggesting another individual started the fire was “both

meager and speculative.” Id. And, according to the court, even if the evidence was marginally

relevant, it could not survive the Rule 403 balancing test. Id. at 407. The court explained that the

probative value of the evidence was slight because it was speculative. Id. Further, the evidence

“present[ed] a great threat of ‘confusion of the issues’ because it would have forced the State to

attempt to disprove the nebulous allegation” that some other person was involved as an assistant

to an unknown arsonist in burning down the restaurant. Id. The court concluded,

        It is not sufficient for a defendant merely to offer up unsupported speculation that
        another person may have done the crime. Such speculative blaming intensifies the
        grave risk of jury confusion, and it invites the jury to render its findings based on
        emotion or prejudice.

Id.

        Our court, as recently as last year, likewise dealt with evidentiary issues as they related to

the alternative perpetrator defense. See Lopez v. State, 314 S.W.3d 54 (Tex. App.—San Antonio

2010, pet. ref’d). In Lopez, the defendant was charged with and convicted of murder. Id. at 56.

She contended the trial court violated her right to present the defense of alternative perpetrator

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when it excluded evidence that “the victim may have had ‘a lot of’ enemies; the victim dealt

drugs; the victim was seen with a gun months before the killing; and the victim may have been

affiliated with a gang that had experienced internal strife that led to the killing of at least two

members of the gang.” Id. at 61. Our court, in finding no error, stated the following:

       Lopez did not provide a sufficient nexus between some alternative perpetrator and
       the murder of the victim. None of the evidence pointed to a particular individual
       as responsible for the killing. The proffered evidence amounted to no more than
       mere speculation that another person may have committed the crime.


Id. at 61-62.

       For the same reasons given by the court of criminal appeals in Wiley and our court in

Lopez, the trial court in the case before us did not err in excluding the evidence that King had

been physically abusive to his girlfriend and had used drugs. King not only did not provide a

nexus between an alternative perpetrator and Perez’s murder, but he also failed to identify any

particular individual who might have been responsible for killing Perez. Perez’s violent

tendencies toward his girlfriend and his history of drug use amount to no more than speculation

that another person may have killed Perez. And, the evidence would present a threat of confusing

the issues since the State would be forced to disprove King’s contention that some unknown

person may have committed the murder. Thus, we hold the trial court did not err in excluding

Negrete’s testimony regarding Perez’s violent tendencies toward her and his drug use.

       In his second issue, King argues that, during the punishment phase of the trial, the trial

court erred in again refusing to allow Negrete to testify that Perez was physically abusive toward

her and used drugs because such evidence was relevant to counter the State’s evidence that

Lopez was a good soldier and loving family member. In other words, according to King, the




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State opened the door to evidence of Perez’s character, and therefore it should not have been

excluded.

        Again, we look to guidance from the Texas Court of Criminal Appeals. In Hayden v.

State, 296 S.W.3d 549 (Tex. Crim. App. 2009), the trial court was faced with a similar argument

during the punishment phase following a murder conviction. In that case, the appellant argued

that the trial court erred in excluding evidence that the murder victim was a convicted sex

offender. Id. at 552. In finding no error, the court of criminal appeals discussed the admissibility

of evidence during punishment and noted that evidence is admissible if “the court deems [it]

relevant to sentencing.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon

2006)). According to the court, evidence is relevant in the punishment phase “if it helps the

factfinder decide what sentence is appropriate for a particular defendant given the facts of the

case.” Id.

        Here, evidence showing Perez had displayed violent behavior toward his girlfriend or that

he used drugs was in no way relevant to helping the factfinder decide the appropriate sentence

for King. The evidence only showed that Perez was perhaps not as worthy as others who might

fall victim to a murderer. As the court stated in Hayden, “evidence that draws comparisons

between the victim and other members of society based on the victim’s worth or morality should

usually be excluded under Rule 403.” Id.

        The appellant in Hayden also raised the same issue King has — that the evidence was

offered to rebut the false impression of the victim’s character created by the State. See id. at 554.

In Hayden, however, the court found that even where a party opens the door to rebuttal evidence,

the trial judge still has discretion to exclude the evidence under Rule 403. Id. And, the court in

Hayden found no error because any false impression created was not directly relevant to the



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offense charged. Id. In other words, the victim’s character was a collateral issue, not relevant to

the jury’s decision on the appropriate sentence to impose on the defendant. Id. According to the

court, allowing the defendant to elicit such evidence “would waste time and confuse the issue by

focusing the jury’s attention on the victim’s character rather than the defendant’s personal

responsibility and moral culpability.” Id. at 554-55.

       Likewise, in this case, regardless of whether the State opened the door, the evidence King

wanted to present was collateral and irrelevant to the sentence imposed on King. Negrete’s

testimony that Perez had abused her and that he used drugs would result in the jury focusing its

attention on Perez’s character rather than on King’s personal responsibility and moral

culpability. Therefore, the trial court did not abuse its discretion in excluding the proffered

testimony.

                                           CONCLUSION

       Accordingly, we affirm the trial court’s judgment.



                                                  Karen Angelini, Justice

Do not publish




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