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Click here for the full text of this decision FACTS:Terry Don Woodward Jr., who is white, was charged with the murder of Roderick Brownlow Jr., who was black, in addition to being charged with aggravated assault with a deadly weapon. At trial, one witness said Woodward yelled, “I will kill you niggers” as he shot toward Brownlow and others. Woodward, however, testified that he shot in the air and did not intend to kill anyone. Two witnesses said Woodward was not a racist. At the conclusion of the evidence, Woodward asked the trial court to instruct the jury on the lesser-included offense of criminally negligent homicide. Woodward argued that he did not intend to kill anyone. The trial court refused an instruction on criminally negligent homicide, but did instruct the jury on manslaughter. Following Woodward’s conviction, the trial court allowed the state during the punishment phase to introduce evidence about Woodward’s “White Pride” tattoo. Woodward was sentenced to life in prison. On appeal, Woodward argues that the trial court erred in not giving the lesser-included offense instruction he wanted. He also complains of the introduction of his tattoo. HOLDING:Affirmed. The court first holds that the trial court did not err in refusing to instruct the jury on the lesser-included offense of criminally negligent homicide. Just because Woodward did not intend the result (Brownlow’s death) does not automatically entitle him to such a charge. Furthermore, there is no evidence to show that Woodward failed to perceive the risk of shooting a gun. As to Woodward’s tattoo, the court considers Woodward’s argument that the state failed to provide him with notice of its intent to introduce evidence of the tattoo. The court points out, and Woodward admits, that the state’s duty is triggered by a defendant’s request to the state. Woodward, however, filed a request with the trial court. Woodward would have this court apply principles of error preservation and error estoppel to show that the state was nonetheless in error. The court says it refuses to “encourage gamesmanship” and “shift the burden to the State to make sure the defendant either provides notice to the State or sets his motion for a hearing, or to penalize the State for giving some notice when it was not required to give any notice.” The court next finds that Woodward’s tattoo just like personal drawings can reflect a person’s character and/or demonstrate a motive for his crime. Woodward does not explain his theory of why the tattoo was irrelevant, and under the racially fueled circumstances of this case, the tattoo is relevant to Woodward’s character, and thus relevant to his punishment. The court then finds that the tattoo’s probative value is not outweighed by its prejudicial effect. There was conflicting evidence that the shootings were racially motivated. The probative value of the tattoo was compelling in that Woodward claimed he had no intent to kill anyone and was acting under the immediate influence of sudden passion. The problem is that Woodward did not ask for a limiting instruction regarding the jury’s consideration of his tattoo. A general limiting instruction regarding any extraneous offenses was included within the charge to the jury, but no specific instruction as to the tattoo was included. “However,” the court writes, “based on the record before us, we cannot say that a limiting instruction would not have been effective.” The court also finds no error in the trial court’s allowance of expert testimony in the form of a forensic scientist who testified outside the presence of the jury about the distance Woodward was to the victim. The court concludes that the state demonstrated by clear and convincing evidence that the underlying scientific theory of the gunshot residue analysis distance determination was valid. OPINION:Gray, C.J.; Gray, C.J., Vance and Reyna, JJ.

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