X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Criminal Law No. 02-01-055-CR, 7/17/2003. Click here for the full text of this decision FACTS: A jury convicted the appellant, Carlis Jovonite Russell, of capital murder and assessed his punishment at life imprisonment. The primary issue addressed in this appeal is whether the trial court abused its discretion by admitting testimony and detailed evidence regarding an extraneous offense, the Vogt Street offense, during the state’s case-in-chief. Russell contends that the trial court abused its discretion by admitting evidence of the Vogt Street extraneous offense in violation of Texas Rules of Evidence 404(b) and 403. In the Vogt Street offense, Russell and three accomplices entered a Fort Worth residence to commit a robbery. One of the accomplices to the Vogt Street offense, Kevin Barnes, participated with Russell in the Fast Freddy’s offense and in the S&A offense. During the Vogt Street offense, the robbers repeatedly sexually assaulted two women, forced them to do “nasty stuff” at gunpoint, and eventually shot them. One woman was shot five times, but lived; the other woman was shot in the head and died. Before trial started, the state sought to introduce the Vogt Street offense in conjunction with two other offenses in order to show that Russell and Barnes acted together as the shooters in each of these offenses and, therefore, possessed the specific intent to murder the victim, David Chapa. Russell objected, arguing that under Texas Rule of Evidence 404(b) Russell’s alleged participation in a sexual assault, robbery and murder was not relevant to show his intent in the Chapa murder five weeks earlier, and alternatively, that under Rule 403 the prejudicial effect of the Vogt Street offense outweighed any probative value it had. The trial court overruled Russell’s objections and permitted the state to discuss the Vogt Street offense during opening statements. Later in the trial, the state articulated that it also wanted to introduce specific, detailed facts of the Vogt Street offense through the surviving victim for the purpose of showing identity. The state argued that the Vogt Street offense tended to show identity “[n]ot because it’s a signature offense . . . but because it shows . . . that in eachone of these crime scenes it’s the same two shooters: Kevin Barnes and Carlis Russell.” Russell’s counsel again objected, explaining that he did not believe “Rule 404(b) contemplates an exception to the general exclusionary rule based upon the association of parties here . . . to allow the introduction of all extraneous offenses because somebody’s friends with somebody or somebody runs with somebody, I don’t believe is supported by the case law and is not contemplated by 404(b).” Russell’s counsel also objected that even if the Vogt Street offense was relevant, its probative value was nonetheless greatly outweighed by its prejudicial effect. The trial court again overruled Russell’s objections and allowed admission of the details of the Vogt Street offense. HOLDING: Reversed and remanded. The Vogt Street offense was arguably relevant to prove intent, but its prejudicial effect greatly outweighed its probative value. Accordingly, the trial court abused its discretion by admitting the Vogt Street offense during the State’s case-in-chief over the defense’s Rule 403 objection. The court holds that the trial court’s implied determination that the Vogt Street offense was relevant to show Russell’s intent in the Fast Freddy’s offense falls at least within the zone of reasonable disagreement. The court locates no case law authority for the proposition that a defendant’s association with another to commit prior and subsequent offenses makes his identity as the perpetrator of the present offense along with the other person more probable. The Vogt Street offense raises only a suspicion as to identity in the Fast Freddy’s offense that culminates from the association of Barnes and Russell. Any determination that Russell’s identity in the Fast Freddy’s offense was more probable because of Russell’s subsequent association with Barnes in the Vogt Street offense constituted an abuse of discretion because it authorized an inference of guilt by association, that is, an inference that because Russell acted with Barnes in the Vogt Street offense, he also was the person who acted with Barnes in the Fast Freddy’s offense. The Vogt Street offense was not relevant to prove Russell’s identity in the Fast Freddy’s offense and to the extent the trial court admitted the Vogt Street offense on this basis, it abused its discretion. Affording all due deference to the trial court’s Rule 403 decision, this court’s review of the record and the relevant criteria under Rule 403 demonstrates that the very low probative value of the Vogt Street offense on the issue of Russell’s intent in the Fast Freddy’s offense is overwhelmingly outweighed by the extremely inflammatory nature of the Vogt Street offense evidence. Accordingly, the court holds that the trial court abused its discretion in admitting evidence of the Vogt Street extraneous offense. The court cannot say with fair assurance that the admission of the Vogt Street offense evidence did not have a substantial and injurious effect or influence on the jury’s verdict. In fact, considering the large volume of detailed, emotionally-presented, inherently inflammatory evidence presented to the jury about the Vogt Street offense and considering the State’s discussion of this offense during opening statements and closing arguments, and the fact that 12 witnesses testified during trial concerning this offense, the record reflects a likelihood that the Vogt Street offense did have a substantial influence on the jury’s verdict. The court cannot say, with fair assurance, after considering the entire record without stripping it of the erroneous admission of the Vogt Street offense, that the judgment was not substantially swayed by the error. The court holds that the trial court’s erroneous admission of the Vogt Street extraneous offense evidence was harmful under Texas Rule of Appellate Procedure 44.2(b). OPINION: Walker, J.; Dauphinot, Gardner and Walker, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.