1

See § 3 6

. 0 6 (a )( 1 )(A) , T EX . P EN . C ODE , ( p e rs on c omm its re ta liatio n if

the pe rs on

int e nti on a lly or knowing ly threatens to ha rm another by an unlawful act on acc ount of the service of anothe r as a prospe ctive witness). 

## IN THE COU RT O F CR IM IN AL AP PE ALS

OF TE XAS

NO. P D-0363-08

GREGORY EARL P OLLARD, Appellan t

v . THE S TATE O F TEXAS
ON STA TE’ S P ETIT ION F OR DI SCRETIO NA RYRE VI EW F RO M THE F OU RT H CO UR T OF AP P EA LS

KER R CO UN TY
H ERV EY , J. , de liv e r e d t he opi nio n of t he Co ur t i n whic h K ELLER , P .J., M E YE RS , W OM ACK , J OHN S ON , K EASLER , H OLC OM B and C OCH RAN , JJ., jo ine d. P RI CE , J., concurre d .

O P I N I O N We gr anted discr etionary

revie w in this c ase to a ddress whether the “victim’s knowledg e of [ap pe lla nt’ s] vi olent pa st” wa s r e le va nt i n th is r e ta liatio n- by -t hr e a t c a se . We d e c ide that th is

1

e vid e nc e wa s n ot r e le va

nt.Pollard--2

Appellant wa s convicted of reta liation by

“intentionally

or knowing ly ” thr ea t en ing to hur t h i s m u ch y o ung er f

riend (K irk) on ac count of Kirk’ s service “as a prospec tive witness.” The

e vid e nc e sh ow s th a t app e lla nt wa s indi c te d for a g g ra

vate d sexua l a ssa

ult of a fo ur te e n- y e ar- old

g ir l. Be fore this, Kirk, who considere d app ell ant a f ather fig ure, ha d made a

statement to the police implicating a

ppellant in this of

fe n s e. Kirk re trac ted this statement shortly afte r appe llant was ind ic te d in

the se xua l- a ssa

ult c a se . K ir k late r t old

the po lic e that he re tr a c te d th is s ta te me nt b e c a us e appellant thre atene d to hurt him or have a biker named “Wolf” hurt him. Kirk testified that he fea red
appe l l ant would ca

rry out his threat to hurt him. Kirk did not testify that his knowledg e of

a pp e lla nt’ s “ vio le nt p a st” c on tr ibute d to his fe ar o f a pp e lla nt, or c on tr ibute d to his re tr a c tio n o f h is ini tia l st a te me nt i mpl ic a tin g a pp e lla nt i n th e se xua l- a ssa

ult c a se , o r c a

us e d h im t o b e mor e lik e ly to be lie ve that a

pp e lla nt w ou ld c arr

y ou t hi s th re a t to hurt

him

. During the g uilt phase of appellant’s trial in the retaliation case , the S tate spent a g ood deal of time making the ju ry aw ar e t hat appe llant had bee n convicted of murder in 1986 ( “the 1986 murder c onviction”). The admissibili ty of this e vidence was discussed twice befor e appe llant’s trial in the reta liation case b eg an. The State claimed that this evidenc e wa s releva nt to show that appellant’ s t h re at t o Kirk “w as leg itimate and could be c arr ied out” and to show that appellant’s motive for thre ateningKirk wa s to a void the 1986 murder c onviction from beingused to enha nce his punishment in t he sexual-assault ca se. [S TATE]: [The State] ca

n fore see testimony about the–[appellant’s] prior offe nse of murder c oming in in the case in c hief, and there are a couple of wa y s that Icould see it coming in. One is the, quote, vic tim in t he ca se, Chris K irk, was awa re that [appellant] had killed somebody , so when the thre ats we re ma de ag ainst him, it g ave him an inc rea sed fee ling that this threat w as leg itimate a nd could be c arr ied out. I ’ve supplied a copyPollard--3

2 The d e f e n s e r e s p o n d e d th a t “ e n h an c e me n t o n p u n is h me n t [w a s ] s tr e tc h in g th e issue on motive to say

that this mot ivated [appellant] to do som ething .”
3 This would not have nec essar ily informed the jur

y that appellant ha d actua lly committed a murder or had bee n convicted of

committing a murde r. to Defe nse counse l here

. And the sec ond thing is, Judge, the–the [appellant] i s well awa re having been to the penitentiary

befor e that if he wer e co n v i ct ed in the sex assault case, he would be enhanc ed pursua

nt to the provisions of the Code that provide f or enha nceme nt upon proof of that prior convic tion, and he’d be fac ing a substantial amount of time in the p e n i t e n t i ar

y. It w o u l d

e n h an c e i tt o l i f

e i nth e p e n i t e n t i ar

y. 2 When the admissibili ty of appellant’s 1986 murder conviction came up ag ain before trial, the State still claimed that this evidenc e wa s admissible to show appellant’s motive for thr eate ning K irk. [S TATE]: Your Honor, it also g oes to [appellant’s] mot ive for the commission of the o ff en s e a tb ar , t o wi t , t h e ob s t ru ct i o no r t h e r et al i at i o nas [ ap p el l an t ] h adk n o wl ed ge of the fa ct that on the sex assaul t case he would be enhanc ed due to the pr ior conviction. You know, you’ve g ot to ask y ourself a s a juror w hy would somebody do this, and that g oes to [appellant’s] mot ive in tampering with a nd obstructing and re ta liatin g a g a ins t th e se wi tne sse s.

. Th e State inf

or me d the tr ia l c ourt

that it a lso int e nd e d to pr e se nt e vid e nc e that a pp e lla nt t old Kirk that he ha d killed a per son (the murder victim in appellant’ s 1986 murder conviction) to show Kirk’s state of

mind, “what he w as told by ap p el l an t,” and that Kir k was “ scar ed to death” of

a pp e lla nt. 3 [ S T A T E ] : W el l , t h e– th e co n t ex t t h at I wi l l t al k ab o u t i t i s n o t as a co n v i ct i o n . It would be the–the state of mind of the victim, what he was told by [appellant]. Idon’t think they used the wor d “convic tion.” I t was something t o the effec t of I ’ve killed a man o r I ’v e kil le d a

g uy or so me thi nglik e that.

* * * So none of that make s sense unless y ou understand f rom the victim’s perspe ct i ve what wa s g oing thr oug h his mind, that he re ally thought that not only

had the thre at been made, but that it could ce rtainly be ca rried out, a

nd he’s sc are d to death of thePollard--4

4 The de fense objected that the only purpose of

the evidenc e of w hat appe llant told Kirk w as “to conf orm cha rac ter of the person” under T EX . R. E V ID . 404(b). [D E F E N S E ]: M y

–m y o b j e c t i o nt o t h a t , o f

c o u r s e , i s t h ati t ’ s a

v i o l a t i o no f

Rul e 404(b) in that it–it’s–the only purpose of

this is–i s to–to confor m ch aracter of the person, a nd that–that’s a violation of the Rule. I t’s a 404(b) violation.

5 We note that this does not constitut e a r uling on the a dmissibi lity o f t h e ev i dence that appellant told Kirk that he had killed a pe rson for the purpose of showing Kirk’s state of

mind.
6 Kirk neve r testified at trial, howeve r, that he w as “sca red to de ath” of appellant be cause he knew that a

ppellant “ha d in the mid ‘80s killed a man.” g u y. 4 The trial c ourt dec ided that a p pellant’s 1986 murde r convic tion was admissible to show appellant’ s motive for threa tening Kirk (“ there was a –a thre at, and the–the threat be ing a question of the motive of the–to pr eclude [appellant ] from possibl y g oing ba ck to prison”) . The trial c ourt also dec ided that the 1986 murde r convic tion wa s admissible beca use it “add[ed] credibility to the victim’s state of mind that say s [appellant] is capa ble of c arr

y ing out this threat.” 5 During its opening statements, the State informe d the jury that it would present evide nce that Kirk wa s “sca

red to de ath” of appe llant beca use Kirk kne w that appe llant “had in the mid ‘80s killed

a man. ” Th e State a lso inf or me d the jur

y that a pp e lla nt’ s 1 98 6 mu

rd e r c on vic tio n w a s r e le va nt t o 6 appellant’ s motive for threa tening Kirk in the sexual-assault ca se. [S TATE]: L et me add one more thing to that. [Appellant] te lls Chris Kirk, You better take this ser iously , and Chris K irk did beca use he ha d knowledg e that [appellant] had in the mid ‘80s killed a man. Chris Kirk was sc are d to death. * * * [Ap pe lla nt], lik e Isa id at th e ve ry

be g inn ing , is un de r t

he g un . H e wa s c on vic te d to do ten y ear s for murde r in t h e ‘8 0 s , and he doe sn’t want to g o back to the penitentiary , and I

submit t hat the evide nce i s going to show that he would do wh a te ve r i t ta

ke s to ke e p th a t f

ro m ha pp e nin g , a

nd that inclu des leani ngon Chr isPollard--5

7 The State did not argue that Kirk w as “sc are d to death” of appellant beca use Kirk knewthat appellant “ had in the mid ‘80s killed a man.” Kirk with the threa

t of death and bodily injury to shut him up, t o silence him just like a Holly wood movie bec ause he knows that if he’ s convicted, h e’ s going to be an enhanc ed off

ender

. Your sec ond time around. Remembe r we talked about that? I t bumps up a notch, and he ’s fa c ing tw o to tw e nty in t he pe nit e nti ary , a

nd that’ s h is m oti ve fo r d oin g thi s to Chris Kirk. The trial court’s char g e instructed the jury to c onsider appe llant’s 1986 murder c onviction for the pur

pose “of deter

mining motive.” During its closing jury arguments, the State argued that appellant’ s 1986 murder conviction was re levant to the issue of a ppellant’s motive for thr eate ning Kirk in the sexual-assault ca se. [S TATE]: But [ appellant] knows also that this ain’t hi s first rodeo. He knows w hen y ou g o back there , y ou look at State’ s Ex hibit 5, and then y ou’ll kno w w hat [appellant] knew that night that he ha d to do in or der to ke ep from g oing back to the pe n it e n ti ar

y , a p la c e th a t h e kn e w w e ll ‘ c a u s e h e ’ d b e e n s e n t th e r e in the ‘80s for murder, a nd he couldn’ t risk goingback. H e’s unde r the gun. * * * This case is about t hat. Why did [appellant] do it? He knows w hat the penitentiar y is about. He knows he’s facing a big hammer if convicted on that sex assault case. 7 On direc t appea l, the court of appea ls de cided that appellant’ s 1986 murder c onviction was inadmissible to show appellant’s motive f or threatening Kirk. Se e Po lla rd v . S tat e , 255 S.W .3d 184, 188-89 (Te x .App.–San Antonio 2008) (“ The State’s a ssertion that [appellant’s] previous [m urder ] conviction , and re sulting inca rce ration, motivated him to threaten K irk with harm is mere speculation.”). The c ourt of appe als also dec ided t h at ap pellant’s 1986 murde r convic tion was ina dmi ssi ble a s “ ba c kg ro un d” e vi dence to s ho w “ that K ir k’ s f e ar o f [a pp e lla nt] c a us e d h im t o

va c ill a te in his a c c ounts of wh a t hap pe ne d or did no t hap pe n re g ard ing the se xua l a ssa ult ” be c a us ePollard--6

“Kirk’ s state of mind is not an el em ent of the of fense of re taliation.” Se e Po lla rd , 255 S.W .3d at 189. We g rante d the S tate’s petition for discretionary revie w which prese nts the following g round: Be cause the victim’s knowledg e of a defe ndant’s viol ent past can be re levant and w as rele vant in this case, the c ourt of appe als err ed by h o l d ing that evidence of the victim’s state of mind is only rele vant if it is an element of the offe nse. The State a sserts that it does not challeng e the c ourt of appe als ’ d ec i s i o n that appellant’ s 1986 murder c onviction was inadmissible to prove appe llant’s m o t ive for thr eate ning K irk. The State argue s, ho we ve r, tha t th e c ourt of a pp e a ls e rr e d w he n it

a lso de c ide d th a t “ wh a t App e lla nt t old Kirk about the murde r” ( for the pur pose of showingKirk’s state of mind) was inadmissible. The State a lso argue s th a t, i f t

he e vid e nc e of

“ wh a t Ap pe lla

nt tol d Ki rk a

bo ut t he mur de r” wa s p ro pe rl y admitted, then this case should be rema nded to the court of appeals t o fac tor this into another ha rm analy sis, specifica lly

whether the er roneously admi t t ed evidenc e of a ppellant’s 1986 murde r conviction “would have had mor e than a slight af fec t on the jury ’s ver dict whe n the jury alre ady knew that Appe llant told Kirk he had killed someone.” The State a rg ues in its brief: The Court of Appe als held that evide nce of Appellant’s murde r convic tion was not rele vant to prove that his motive in threatening Kirk wa s to avoid having to go ba ck to prison. The Court of Appeals also re jected the State’s alter

native theor

y that what Appellant told Kirk about the murde r wa s admissible to prove Kirk’s state of mind. Th e Court

of Ap pe a ls tre a te d th is a s a sin g le po int

of e rr or and did no t di sti nguis h betwee n admissibili ty

of what Appellant told Ki rk and admissibi lity of the murde r conviction. We do not challeng e the Court of A ppeals’ holding that the conviction was inadmissible to prove motive. Our petition a ddresse s the rele vance of evide nce that A p p e ll an t to ld K ir

k h e h a d k il le d s o me o n e . T h e s e is s u e s w e r e in te rtw ined at trial and on a

ppeal, but ca

n be sepa rate d. On or ig ina l su

bmi ssi on , th e Cou

rt of Ap pe a ls b e lie ve d it

wa s e rr or no t only to a dmi t the conviction, but also to admit te stimony that Appellant told Kirk about the murde r. There fore , it factore d this a ssumption i nto its harm analy sis of the impact of the e rror on the ver dict. I f this Court ag ree s that what Appellant told Kirk wa s admissible and su sta ins our g ro un d fo r re vie w, the c a se sh ou ld b e re mand e d f or the Cou rt of Ap pe a ls to rec onsider the issue of

harm in [errone ously ] admit ting the c onviction in light ofPollard--7

8 The State’s br ief on discr etionary revie w does not direc t this C ourt wher e, in its direct-a ppeal br ie f i n th e c ourt

of a pp e a ls, the State pr e se nte d th e “ a lte rn a tiv e the or y that whatApp e lla nt to ld Kir k abou t the m urder w a s a d mi s s ib le to p r o v e K ir k ’ s s tate o f mi n d

. ” ( E mp h a s is s u p p li e d )

. We have r eviewe d the State’s dire ct-a ppeal br ief in the c ourt of appe als, and it d o es not support the State’s asser

tion on discretionar

y revie w that the State’s direc t-appe al brief prese nted this alternative theory . The State’s dire ct-a ppeal br ief a ddresse d the ad m i s sibili ty of appe llant’s 1986 murder c on vic t i o na l m o s te xc l u s i v e l y i nt h e c o n t e xt

o f i t s m o t i v e t h e o r

y . T h e a l t e r

n a t i v e t h e o r

y a c tua lly prese nt ed i n t h e S tate’s dire ct-a ppeal br ief wa s that the 1986 murder conviction (a

nd not “what Appellant told Kirk about the murde r”) was a lso admissibl e to show Kirk’s state of mind. W e set out the rele vant portions of the State’s dire ct-a ppeal br ief: Additionally , the evidence of the m urder , acc ordi n g to the State, and [ Kir k’ s] know ledge of that prior conviction at t he time the thre at was issued, f urnished a rea son for [Kirk’s] willi ng ness to re s p o n d t o the threa t by retra cting his statement imp lic a tin g Ap pe lla

nt i n v ari ou s c ri me s.

* * * Th e [extraneo us 19 86 mur de r c on vic tio n] of fe re d s ho we d App e lla

nt’ s mo tiv e to make the thr eat ag ainst a witness who would put him back in the penitentiary . [The extraneous 1986 murder convic t ion] showed the c ontext of the off ense, demonstrating not only

why the threat was made but also why Kirk vac illated, and ma de c on tr a dic tor

y state me nts

. (E mph a sis su

pp lie d) ; se e als o P oll

ar d , 255 S.W .3d at 189 (“ The State a s s er t s d ef endant’s [ 1986] murder c onviction presents a backg round th at h el p ed the jury understand w hy

Kirk contra dicted himself in his statements for and a g ainst defe ndant.”)

. the fac t that it was not e rror for the jur

y to be informed that Appellant told Kirk he had killed s omeone. The question in the harm ana ly sis should now be whether , [t he err oneous admission of

] evide nce that Appellant actua lly killed some one would have had more than a slig ht affe ct on the jury ’s ver dict when the jury alre ady knew that Appellant told Kirk he ha d killed someone. 8 The fir st question that we must address is whether the g round upon which we g rante d revie w is p ro pe rl y

be fo re thi s Co ur

t, b e c a us e argua bly the c ourt of a pp e a ls d id n ot a dd

re ss t he a dmi ssi bil ity of “w hat Appellant told Kirk a bout the murder.” S

ee T EX . R. A PP . P R OC . 66.1 (this Court “may revie w a c ourt of appe als’ decision ”). ( Emphasis supplied). The question upon which we g rante d revie w is the rele vance of the “ victim’s knowledg e of [appellan t ’s ] v iolent past” (i.e, “ whatPollard--8

9 Appellant ra ised on appe al the admissibility of appe llant’s 1986 m u rd er co nviction which is disti nct from “ what Appe llant told Kirk about the murder .”

10 Th e c ourt of a pp e a ls’ op ini on

state s: T h e S tate empha siz ed def endant’ s prior murder

conviction re peate dly

throug hout t r i a l

. T h e S t a t e d i s c u s s e d t h e m u r d e r

c o n v i c t i o ni ni t s o p e n i n g s t a t e m e n tt o t h e j u r y; it elicite d testim ony from Kir k regarding his know ledge of the conviction , and i td i s c u s s e d

t h e c o n v i c t i o na g a i ni ni t s f i r s t c l o s i n g ar g u m e n tt o t h e j u r y. Se e Po lla rd , 255 S.W .3d at 190 (e mphasis supplied).

11 We also ag ree with the State that, if evidenc e of “what Appellant told Kirk about the murde r” was prope rly

admitted and, if this e vidence informed the jury that appellant ha d actua lly murdere d a per son, then this could have some be aringon the cour t of appe als’ har

m analy sis. Appellant tol d Kirk about the murder ”). The State prese nted this theory of admissibilit y

to the trial court, whic h did not expressly rule on it even though appellant obj ecte d to it. The a dmissibi lity of the e vid e nc e of

“ wh a t App e lla

nt t old Ki rk a bo ut t he mur de r” wa s n ot r a ise d a s a po int of e rr or in

a pp e lla nt’ s b ri e f o n d ir e c t a

pp e a l in the c ourt of a pp e a ls. An d the c ourt of a pp e a ls d id n ot a dd

re ss 9 this specific issue until it c onducted its ha rm ana ly sis of the err oneous admission of appe llant’s 1986 murder co n v i ct i o n. Se e Po lla rd , 2 55 S.W. 3d a t 19 0. On e of

the fa c tor s th a t th e c ourt of a pp e a ls

re lie d u po n in thi s h arm

a na ly sis wa s th a t th e State “ e lic ite d te sti mony fr om K ir k r e g ard inghis k nowledg e of [appellant’ s 1986 murder] conviction.” Se e id

. W e d e c i d e t h a t t h i s c o n s t itu te s a 10 decision that “w hat Appellant told Kirk a bout the murder” was inadmissible. This, along with the 11
court of appea ls’ decision that Kirk’s state of mind wa s irrele vant, ra ises the issue pre sented by the State in its petit ion for discre tionary revie w. Appellant arg ues t hat Kirk’s state of mind was irreleva nt to the cha

rg ed re taliation offense ,
e sp e c ia lly sin c e the re is n o e vid e nc e that a pp e lla nt m ade any refe re nc e to h is “ vio le nt p a st” inPollard--9

12 Se e Te ague v . S

tat e , 864 S.W .2d 505, 519 (Tex.Cr.App. 1993) (out-of -cour t statement was “off ere d to prove the f

act of an assertion, a nonhearsay purpose, and not to prove the truthfulne ss of the asser ted fa ct, a he arsa

y purpose” ), ov e rru le d on oth e r gr ou nd s by Ro be rts on v . S

tat e , 871 S.W .2d 701, 712-13 n.13 (Te x .Cr.App. 1993). connect i o n wi th threate ning K irk by , for e x ample, also say ing to Kir k, “I ’ve hur

t/kill ed someone befor e, I ’ll do it ag ain.” Appe llant argues in his brief: Ki rk ’s state -o f- min d is of

no c on se qu e nc e to t

he c ha rg e d o ff e ns e of re ta liatio n. F ir st, the offe nse of r etaliation does not require that the t hreat be taken se riously , nor is the complainant’s subjec tiv e s t at e-of-mind pertinent to the re quisite elements of the c ha rg e . Se c on d, in o ur

c a se , the re wa s no evi de nc e or fa c tua l is su e pr e se nte d a s to Ki rk ’s a c tua l fe ar or la c k of fe ar of Ap pe lla nt ari sin g fr om Ap pe lla

nt’ s p ri or ba d a c ts. Kirk did not testify

that he wa s actua lly

in fea r of A p p el l an t o r t ook the threat s e r i o u s l y b e c a

u s e o f A p p e l l an t ’ s h i s t o r

y. Nor wa s there a

shred of evidenc e that Appellant ref ere nced or relied upon his history of violence to bolster the alleg ed thre at. Ther e wa s no evidenc e off ere d perta ining to A p p e ll an t’ s ( s ic ) s tate

- o f

- mi n d an d h is b e li e f th a t th e thr e a t w o u ld b e ta ken as le g iti ma te du e to t

he pr ior his tor y of vio le nc e . F or

e xamp le , Ap pe lla

nt’ s c omm e nts such as “ I ’ve hur

t/kill ed someone befor e, I ’ll do it ag ain”, a re en t i re l y

absent fr om the record. Thus, the elements of the of fense do not make such pr oof re levant, nor do the pa rt ic ula r f a c ts o f t his c a se make su c h p ro of re le va nt. I n a re taliation-by -threat case like this, when a thre at (“ retra ct y our st atement or Iwill hurt
y ou”) is ac companied by

a stateme nt (“I ’ve killed be fore , and I ’ll do it ag ain” or “You know I ‘ve kil le d b e fo re , a

nd I wi ll do it ag a in” ), a tr ia l cou rt wo uld no t abu se its dis c re tio n to de c ide that th is la tter ac companyingstate me nt i s r e le va nt. I n th e se c ir c ums tanc e s, a tr ia l c ourt

c ou ld r e a so na

bly decide that the re levanc y

of the acc ompanying statement (“I ’ve killed be fore , and I ”ll do it ag ain” or “Y ou know I ‘ve killed before , and I will do it ag ain”) is not the truth of the matter a sserted in the statement, but the fac t that the statement was made with the intent that the listener believe d that the
statement wa s true, which make s it more probable that the defendant’s thre ateningstatement 12 (“r etra ct y our statement o r Iwill hurt y ou”) w as intended a s a threat. See T EX . R. E V ID
.Pollard--10

13 For example, the State also argues in its brief that “the fac t that Appellant told Kirk he ha d murdere d someone wa s releva nt” and that “ [w] hether t h e m u rder actua lly took place” was not rele vant. This, how ever , seems very differ ent from the c laim actually prese nted in the State’s g round fo r r e vie w that Kir

k’ s kno wl e dg e of a

pp e lla nt’ s “vi ole nt pa st” wa s re le va nt. Pe rm itt ing the jur

y to hear evidenc e that “A

ppellant told Kirk he ha d murdere d someone” for the p u rpose of showing Kirk’s fe ar of

appellant is not the same a s permitting the jury to hear evidenc e of appellant’ s “violent past” for this same purpose. The former does not nece ssarily inform t he jury of appe llant’s “violent pa st” wh ile the la tte r d oe s. This could have some bear ing on a harm a naly sis of t he er

roneous a dmission of appellant’s 1986 murder c onviction. Fo r ex am p le, if evide nce that “Appellant told Kirk he had murde red someone” is a dmissibl e without infor ming the jury that a “murde r ac tually took place,” then it cannot be said, a s the State sug g ests, that evidenc e of appellant’ s 1986 murder conviction could not have 401(“r eleva

nt evidence ” mea

ns evidenc e havingany

tendenc y to make the e x istence of

any fac t that is o f c on se qu e nc e to t

he de te rm in ati on of

the a c tio n mo re pr ob a

ble or le ss p ro ba

ble tha n it wo uld be without the evidenc e). This case does not prese nt this scena rio as t here is no evidence that appellant’ s threat to Kirk

wa s a c c omp anied by

any state me nt s uc h a s “ I ’v e kil le d b e fo re , a nd I ’l l do it a g a in. ” Th e State

never theless ar g ues that it was also re levant that, at some time in the pa st b ef ore a ppellant eve n threatened Kir

k, appellant told Kirk that he had killed a pe rson. The State a rg ues that this evidence

was re levant to show that “Kirk took A ppellant’s threats se riously , which explains why he re cante d h i s i n i t i al statements.” The State also argues that this evidence was re levant to show that “w hen Appellant made the threat, he knew K irk would believe he wa s capa ble of car ry i n g it out, and Ap pe llan t in te nd e d th a t th e c omb ine d e ff e c t of the thr e at and

the kn ow le dg e of

his vio le nt p a st would preve nt Kirk from re porting the cr ime and/or re canting the statements he ha d alre ady made.” The State’s brief is somew hat vag ue on whether the truth of the matter asser ted in appellant’ s
state me nt t o Kir

k tha t he ha d kill e d a p e rs on or wh e the r t he me re a sse rt ion

its e lf (w ith ou t r e g a rd

to its truthfulness) was pre sented to the jury

. The State cites to the following portion of the re cord: 13Pollard--11

ha d mo re “ tha

n a sli g ht a ff e c t on the jur y ’s ve rd ic t whe n the jur

y a lr e a dy kn e w that App e lla

nt t old Kirk he ha d killed someone.” Q. [S TATE]: W hen did y ou first find out that [appellant] had kill ed a ma n? A. [KI RK]: Ican’ t remembe r the date. Q. Wel l, I ’m

no t a sk ingy ou

fo r the date . Ca

n y ou kin d o f r e me mbe r h owit f its in the re ? Was it b e fo re the se x ass a ult ? A. I believe it–I

believe so. Q

. O k ay. [DEFENSE ATTORNEY1]: J udg e, just for-- [DEFENSE ATTORNEY2]: Clay

-- Q. An d d id you

fi nd ou t f ro m th e De fe nd ant? A. He ha d told me once. After the par ties and the trial c ourt discussed the a dmissibi lity of this evidence , the trial cour t ruled that it was a dmissibl e and a lso instructed the jury not t o consider this “e x trane ous offe nse”

un le ss i t f ound be y on d a re a so na ble do ub t th a t a

pp e lla nt c omm itt e d it

. [TR I AL COURT]: Ithink it goes to–it g oes to the basis for his f ear of whether or not the De fe nd ant w a s c a

pa ble of c arr y ingou t th e –c arr

y ingou t th e thr e a t. [DEFENSE]: Yes, sir. That–that was the Court’ s rul i n g y es t er day . Ijust renewe d my -- [ T R IA LC O U R T ] : O h , o k ay. [DEFENSE]: –t hat it’s an extraneous–it is an extraneous off ense, a nd I don’t think there ’s an e x ception, so he–he needs to state a n exception if he has one

. [S TATE ] : T h at, Your Honor, and the D efe ndant’s motive to tamper w ith and reta liate ag ainst a witness to a void the enhanc ed punishment a nd his r eturn to prison. * * * [TR I AL COURT]: L adies a

nd g entlemen, onc e ag ain, y ou may hear evidenc e ofPollard--12

14 Ki rk the n te sti fi e d th a t he wa s a fr a id t hat a pp e lla nt w ou ld h

ur t him if h e did

no t r e tr a c t hi s state me nt: Q. [STA TE ]: Ok ay . M r. Ki rk , d id you have any fe ar wh at wou ld ha

pp e n to y ou

if y ou turned a g ainst [appellant] and left him? Did y ou have any fea rs that something would happen to you? A. [KI RK]: Yes, sir, if I

–Ihad fe ars that if I

made my statement and he knew a bout it, that he wa s g oin g to h

ur t me . H e wa s g oin g to–

y ou kn ow , mor e lik e ly

g e t so me other pe ople af

ter me too. Q. Ok ay . N ow , th a t’ s n ot s ome thi ngthat y ou ’r e g ue ssi ng , is it? A. No

. I

– Ikn ew i nm y

h ea rt t h at h e w o u l d

d o s o m et h i n g. Q. I s that what y ou wer e told by him would happen? A. Yes, sir. extraneous offe nses that may have–ma y have been or may

not have be en committed by [appellant] an d aga i n Iinstruct y ou that unless y ou fee l–believe be y ond a rea sonable doubt that he, i n fac t, committed those offense s, y ou cannot c onsider them fo r a ny re a so n in y our d e lib e ratio ns . 14
We do not believe that the record would support an asse rtion that Kirk testified that appe llant

mere ly told Kirk that he had killed a per s on. The que stion (conce rning what appe llant told Kirk) almost imm ediately

followed the que st i o n “[ w] hen did y ou find out that [appellant] had killed a man.” Kir

k’s answe r to these two que stions in formed the jury in no uncer

tain terms that Kirk lear ned from appellant that a

ppellant had a ctually

killed a per son. The trial c ourt’s instruction to the jury immediately afte r this testimony not to consider this “ extraneous offe nse” un l es s t h e jury believed that appellant committed it also appea rs to confirm that this evidenc e wa s offe red to show that appellant had actua lly killed a person a nd not to show that he mere ly told Kirk that he had killed
a per son.Pollard--13

And we hold that the evidenc e that Kirk knew that appellant had actua lly killed a person wa s not releva

nt. Ki rk d i d n o t testify

that his knowledg e that appe llant had ac tually killed a per son contributed to his fea

r of a ppellant or to his rec antation of his init ial statement implicating appellant in the sexual-assault case , making the evidenc e that appe llant had ac tually killed a per son somewhat fre e-w heelingand unconne cted to any thing of rea l conseque nce in t h e ca se. The e vidence that appellant had actua lly killed a person, standing alone, did not make any fac t of conseque nce mor e or less proba

ble in this retaliation-by -threat prosecution. And, to the e x tent that this evidence of “what Appellant told Kirk about the murde r” might have had some mar g inal rele vance to any fac t of conse quence in this case beyond a cha rac ter-c onformity purpose or the State’s now- abandone d
purp os e of

sh ow ing mot ive , w e do no t be lie ve that th is w ou ld h a ve a ff e c te d th e c ourt

of a pp e a ls’ harm a naly sis on the errone ous admission of appellant’s 1986 murde r convic tion. Se e Po lla rd , 255 S.W. 3 d a t 1 9 0 ( St a te e mp h a s iz e d th e e r r o n e o u s ly a d mi tt e d e v id e n c e o f a p p e ll an t’ s 1 9 8 6 murder conviction re peate dly

throug hout the trial). The judg ment of the c ourt of appe als is affir med.

H e r

v e y , J.

Deliver ed: Fe bruar

y 11, 2009 Pub lis h