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Click here for the full text of this decision FACTS:On May 26, 2003, 69-year-old Edith Camp was in her home when she was killed by a shot to the back of her head. Based on the evidence at the crime scene, the officers surmised the assailant probably knew Camp, the layout of her house, which drawers to search and where Camp kept valuables and cash. The assailant covered Camp’s face with a towel as if disturbed by the image of Camp’s wounded head and lifeless eyes. The assailant removed a 5-carat diamond ring from Camp’s finger with a pair of pliers and removed her deceased husband’s gold “dog tag” from around her neck. Ballistics tests showed a distinctive firing pattern consistent with that of a .22 caliber Cricket Keystone rifle. Neither the murder weapon nor items taken from the residence were recovered. The state’s case was based entirely on circumstantial evidence. Several months before the murder, Camp was apparently upset with her nephew Robert Fischer and told a friend that she intended not to provide Fischer with any further financial support. A few days before the murder, Camp stated that Fischer “gave her the creeps.” Two weeks after the murder, a .22 caliber Cricket rifle was discovered missing from the Boerne Wal-Mart where Fischer was a support manager. Ed Love Jr., a firearms examiner with the Bexar County Crime Lab, subjected a Cricket rifle, with the serial number immediately following that of the stolen firearm, to ballistics tests. Love testified that the slug recovered from the scene of the murder was fired from a Cricket rifle identical or very nearly identical to the rifle taken from Wal-Mart. In an attempt to link Fischer to the murder, the state presented evidence suggesting that Fischer stole the .22 Cricket rifle from the Boerne Wal-Mart as part of his plan to murder Camp. Fischer argues the trial court erred in admitting the evidence relating to the theft of the Cricket rifle from Wal-Mart. The state made an oral proffer to the trial court of the extraneous theft evidence it intended to introduce. Fischer objected to the admission of the extraneous offense on the grounds of relevance, argued that its probative value was outweighed by its unfair prejudice, and contended that the evidence was insufficient to support its admission as an extraneous offense. The trial court overruled Fischer’s objections, and testimony regarding the theft was admitted during the guilt-innocence phase of trial. A jury convicted Fischer of Camp’s murder and sentenced him to 99 years of imprisonment. On appeal, Fischer presented three issues for review: 1. improper admission of extraneous offense evidence regarding the theft of a firearm; 2. factual insufficiency of the evidence; and 3. improper admission of hearsay evidence. HOLDING:Reversed and remanded. In order to properly admit the rifle, the trial court had to determine that a jury reasonably could find beyond a reasonable doubt that Fischer unlawfully appropriated the Cricket rifle with an intent to deprive the owner of the property. The only link between Fischer and the theft, however, was that he was one of possibly 14 managers with a key to the gun locker and that he mentioned “sometime during that time” that Wal-Mart was selling a small child’s rifle. The state failed to offer any statements establishing a motive for the theft or Fischer’s identity as the thief. Although the state’s proffer of the evidence may well have identified Fischer as one of several possible suspects in the theft of the gun, it fell short of a clear showing that Fischer actually committed the offense, the court stated. Thus, the court found that based solely on the proffer presented to the trial court, the trial court abused its discretion in determining that a jury could reasonably find beyond a reasonable doubt that Fischer committed the theft. The court then moved on to harm analysis. In this case, the court stated, significant time was devoted at trial to developing the evidence surrounding the theft of the Cricket rifle from the Wal-Mart. More importantly, the theft of the rifle was the only evidence linking Fischer to the murder weapon. Absent the evidence of the theft, the court found that the other evidence did not establish that Fischer was any more of a suspect than any of Camp’s other family members and friends who had knowledge of her house and where she kept her money and other valuables. Moreover, the state relied heavily on the evidence of the theft during closing argument. Accordingly, the court found that the erroneous admission of the evidence disrupted the jury’s orderly evaluation of the evidence. Having considered the record as a whole, the court concluded that the erroneous admission of the extraneous offense evidence had a substantial and injurious effect or influence on the jury’s verdict thereby affecting Fischer’s substantial rights. OPINION:Simmons, J.; Marion and Simmons, JJ. DISSENT:Speedlin, J. “Although the proffer does not directly place the missing rifle in Fischer’s hands, the proffer certainly connects Fischer to the missing gun, and, as such, supports the trial court’s threshold determination that the evidence was relevant and admissible under Rule 104(b). . . . The State’s proffer contains circumstantial evidence upon which a rational jury could find beyond a reasonable doubt that Fischer unlawfully appropriated the Cricket rifle with intent to deprive the owner of the property. . . . Therefore, I would hold the court did not err in admitting the evidence.”

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