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Click here for the full text of this decision FACTS:Three indictments were filed in this case. The third indictment charged the appellant with murder and with manslaughter. The evidence shows that the appellant shot and killed an innocent third party (Swain) while appellant was firing a gun in the general direction of Swain and another person (Delaney). The appellant claimed self-defense, because Delaney was threatening him with deadly force. The jury was instructed on self-defense as it applied to the murder charge. The jury was also instructed that self-defense did not apply to the manslaughter charge. The jury acquitted appellant of murder and convicted him of manslaughter. At trial, the trial court excluded appellant’s proffered testimony of two witnesses (Bell and Paisley) who would have testified that Delaney had threatened them with a gun about two years before the incident in this case. The appellant claimed on direct appeal that the excluded evidence of Delaney’s prior aggression against Bell and Paisley was admissible under Texas Rule of Evidence 404(b) to show that Delaney was the first aggressor during the incident in which appellant shot and killed Swain. The court of appeals rejected this claim HOLDING:Affirmed. This court’s decision in Tate v. State, 981 S.W.2d 189 (Tex. Cr. App. 1998), does not require a defendant to have been “implicated” by the victim’s prior bad act before such evidence can be admissible under Texas Rule of Evidence 404(b). In Torres v. State, 71 S.W.3d 758 (Tex. Cr. App. 2002),the court applied Tate to decide that, in a murder prosecution where a defendant claims self-defense, the deceased’s prior threats may be admitted, even though those threats were not directed at the defendant, “as long as the proffered [threats] explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only.” It is unnecessary to decide whether the evidence of Delaney’s two-year-old specific acts of violence against Bell and Paisley was admissible under Torres and Tate, because the only relevance of this evidence was to the murder charge of which the jury acquitted appellant. OPINION:Barbara P. Hervey, J., delivered the opinion of the court in which Meyers, Price, Womack, Keasler, Holcomb and Cochran, JJ., joined. Keller, PJ., filed a concurring opinion in which Johnson and Cochran, JJ., joined. CONCURRENCE:Sharon Keller, P.J., filed a concurring opinion in which Johnson and Cochran, JJ., joined. “I do not read the court of appeals’s opinion to hold that Tate limited the admissibility of evidence to those instances in which the victim’s prior bad acts implicated the defendant. Rather, I read the court of appeals as simply holding that Tate did not supply a basis for admitting appellant’s evidence because his evidence was not like the evidence in that case, and no other basis for admitting the evidence was apparent.”

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