Du e to t he fa c t th a t se ve ra l of

the pe op le inv olv e d in this ca se sh are ide nti c a l la st n a me s, 1 we will re fer

to those individuals by

their first name s. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 9 -00 401 -CR

G or don L e e Cur r in , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF MI LAM COUNTY , 20TH JUDICIAL DISTRICT

NO. CR22,32 9 , HO NORAB LE ED MAGRE , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N

G o r d o nL e e C u r

r i nw a s c o n v i c t e d

o f m u r d e r i n g G r e g S t o r e y. See Tex. Pena l Code 1 A n n . § 1 9

. 0 2 ( W e s t2 0 0 3 ) ( l i s t i n g e l e m e n t s f o r m u r d e r )

. D u r i n g t h e t r i a l , C u r r i n p l e a d e d

n o tg u i l t y, but the jury

found him g uilty

and imposed a life sentenc e. On a ppeal, Curr in challeng es the district

c ourt ’s de c isi on

to e xclu de e vid e nc e re g ard ing vio le nt a c ts a lle g e dly c omm itt e d b y Gr e g . We wi ll aff irm the judg ment of the district cour t.

BACK GR OUND Three y ear s befor e his death, Gregpurchas ed property from Currin a

nd agre ed to make monthly

pay ments directly

to Currin. Greglived on that proper ty with his wife, T a m m y S t o r e y. In a d d i t i o n t o t h e S t o r e ys ’ h o m e , t h e r e w a s an o t h e r b u i l d i n g l o c a t e d

o nt h e p r o p e rt y,On e wi tne ss t e sti fi e d th a t Curr in w a s p lann ingon se lli ng the pr op e rt y to t he Al e xan de rs . 2 2 which Gr eghad at one time rented out to John and Debora h Alexander. While they lease d the proper ty , the Alexanders r an a ba rbec ue re staurant i n s i d e t h e building. H oweve r, shortly befor e Gre g ’s murder , Gre g evicted the Alexanders fr om the proper ty

. Currin and Gr eghad an amicable relationship until Curr in indicated that he w anted to discontinue their financ ial arr ang ement and w anted to sell either the prope rty

or the note on the proper ty to someone else. As the re lationship d et er i o rated, Gregand Currin e ach c ontacted la w- 2

e nf or c e me nt of

fi c ia ls re g ard ing thr e a ts a lle g e dly ma de by the oth e r. Se ve ra l of

fi c ia ls a dv ise d b oth Currin and Gr egto stay

awa y from one a

nother. Sho rt ly a ft e r h a vin g a

dis c us sio n wi th the po lic e , Cur ri n sa w G re g sittin g ou tsi de in front of the building that the Alexanders had used as a barbe cue restaur ant. At the time, Currin was riding in his truck with his friend, Rosalee J o n es . As C urrin drove by , he and G regexchang ed obscene g estures. A fter e x chang ing g estures w ith Greg , Currin then proc eede d to J ones’s home a nd dr op pe d h e r o ff

. O nc e Jone s g ot out of the tr uc k, Cur ri n r e tr ie ve d h is s ho tg un

fr om b e hin d th e se a t, put the g un in the front of the car , and proc eede d to Greg ’s prope rty ag ain. While driving by

Gre g ’s ho me fo r the se c on d time , Cur ri n an d Gr e g a g a in exc ha

ng e d obs c e ne g e sture s. I n a dd iti on , G re g a lso y elled something at Currin. Around this time, Gre g told his wife to go to their home and call the po lic e . Ev e ntu a lly , Curr in t ur ne d o nto Gr e g ’s pr op e rt

y and pa rk e d in a lot in f ro nt o f t he re sta ur a nt. After Currin parke d his truck, Greg moved qui ckly towards the truck. When he sa w Gre g moving towa

rds the truc k, Currin pulled his gun f rom the fr ont floorboar d and showed the g un3

to Greg . Once Gre g saw the gun, he y elled, “gun,” and the n turned a nd ran ba ck t owar ds the building. As Gr egwas runningawa y , Currin shot him in t he bac k three times. When Tammy

hear d the shots, she ran back to the restaurant and found her husband l y i n g o nt h e gr o u n d

. S h e a l s o s aw C u rr i n ’ s t ru c k l ea v i n g t h e p ar k i n g l o t

. Af t er s h o o t i n g Gr eg, Currin drove to the sheriff’ s office and told an off icer that he “just shot a fe lla,” “shot the motherfuc ker,” or “shot the son of a bitch.” Shortly afte r his arr iv al at t h e sheriff ’s station, Currin was a

rre sted and que stioned reg ardingthe shooting. D uring the questioning , Currin stated that he shot Gr egin self-de fense and that Gre g must have been running to g et a wea pon. The police sear ched the are a whe re G reg ’s body was found, but they

found no we apons in the ar ea. U ltimately , a trial wa s held, and the jury found Currin g uilty

of murder ing G regand imposed a life sentenc e.

DI SCU SSIO N I n one issue on appeal, C urrin asserts that the di strict court abused i ts discretion by ref using to a llow Currin to present e vidence reg ardingviolent acts alleg edly committed

b y G r e g p rior to the s h o o t i n g . Se e Tat e v . S tat e , 981 S.W .2d 189, 192 (Tex. Crim. App. 1998) (“ Tate I ”) (explaining that a

ppellate c ourts revie w dec ision to ex clude e vidence fo r ab u se of discr etion). Specifica lly , Currin insists t hat the district cour t erre d by preve nting him f rom introducing evidenc e showing that Gre g had threatene d the Alex ander s. After the cour t concluded that J ohn and De borah could not testify

reg ardingthreats Greg alleg edly made ag ainst them, Currin made a n offe r of pr oof in which the Alexander s testified outside the pre sence of the jury re gardingthe eve nts. The Al e xan de rs bo th s ta te d th a t a few week s be fo re Gr e g wa s k ill e d, he c a me to t he ir re sta ur a nt,We n ote th at no evide nc e wa s in tr od uc e d s ho wi ngthat Curr in w a s awa re of the thr e a ts 3 alleg edly made a g ainst the Alexanders prior to the shooting. 4 threatened them, a

nd showed them a g un that he had under his shirt. Fur ther, the Alexanders re lated that during the time of the e viction proce eding s, Greg went to the re staurant a g ain and told t hem that he wo uld burn the ir ho us e do wn

and sh oo t th e m w he n th e y

ra n o ut of the ho us e . On a

pp e a l, C ur

ri n ins ist s th a t th e dis tr ic t c ourt ’s de c isi on ha rm e d h im b e c a

us e it “d e nie d h im the op po rt un ity to discredit the testimony

by the State conce rning the lack of wea pons available to [ Gre g ], as well as the opportunity

to bolster [hi s] contention that he rea sonably thought [ Gre g ] was going for a wea pon when he turned fr om the truck a nd ran towa

rds the building.” 3 I n g e ne ra l, e vid e nc e re g ard ing a vic tim ’s c ha ra c te r i s n ot a dmi ssi ble “ fo r t he purp os e of provingaction in conf ormity there with.” Tex. R. Evid. 404(a). S i m i l ar l y , evidenc e of othe r

c r i m e s o r b a d a c t s c o m m i t t e d

b y a v i c t i m i s n o ta d m i s s i b l e s i m p l y t o s h o w c h ar a c t e r c o n f o r m i t y. Id. R. 40 4( b) ; se e Torre

s v . S tat e , 1 17 S.W. 3d

89 1, 89 5 ( Te x. Cr im. Ap p. 20 03 ). Ho we ve r, the se g ener al rules have several ex ceptions, i ncluding admitting evidence of a “pertinent cha rac ter tra it of the victim.” Id. ; see Tate I , 981 S.W .2d at 192. For murder c ases, if a defe ndant ra ises the issue of

se lf -d e fe ns e , th e de fe nd ant m ay “ int ro du c e e vid e nc e of

the de c e a se d’ s v iol e nt c ha ra c te r” in o rd e r t o demonstrate “ the re asonable ness of the de fenda nt’s fea r of d ang er or

to demonstrate that the dece ased w as the f

i rs t aggr es sor.” Torres , 1 17 S.W. 3d a t 89 5; see Tate I

, 981 S.W .2d at 193 (e xpla ini ngthat r

ule s o f e vid e nc e a ll ow for admi ssi on of e vid e nc e of

pr ior ba d a c ts f

or c e rt a in pur p o s e s ). Ev ide nc e pe rt a ini ngto w he the r t he de c e a se d w a s th e fi rs t a g g re sso r i s a dmi ssi ble be c a us e it relates to “the dece ased’ s intent, moti ve, or state of mind.” Torres , 1 17 S.W. 3d a t 89 5; see Te x. R.5

Ev id. 40 4( b) (a llo wi nge vid e nc e of vio le nt a c ts by vic tim to be int ro du c e d a s pr oo f of

mot ive , in te nt, plan, and other

rea sons). Be caus e evidence addr essing whether the victim was the fir st ag g ressor g oes to the victim’s state of mind, it is not necessar y that the defe ndant know of the violent act or acts. Torres , 117 S.W .3d at 895. B efor e ev i d en ce o f vi olent acts by the victim may

proper ly be int ro du c e d, the de fe nd ant m us t sh ow“so me act

of a g g re ssi on

that tends to raise the issue ofselfdefe nse, which the violent act may then help cla

rify .” See id. Whe n a rguin g that th e dis tr ic t c ourt e rr e d by e xclu din g the e vid e nc e , Curr in i ns ist s t h a ta p r o p e r p r e d i c a t e h a d

b e e nl a i d p r i o r t o t h e A l e x an d e r s b e i n g c a l l e d t o t e s t i f y. S p e c i f i c a l l y, Currin ref ers to testimony

from several witnesses, including himself, describingvarious thre ats Gre g

a lle g e dly ma de and

to t he po rt ion

of his te sti mony

wh ere he stat e d th a t G re g mov e d a g g re ssi ve ly towards his truck be fore the shooting.

Even a ssuming that the d i strict court e rre d by excluding the e vidence soug ht, that

err or woul d not be g rounds for r ever sal in this case. F or cr iminal cases, ther e ar e two ty pes of

reve rsible er

rors: (1) constitutional e rror s, and (2) nonconstitutional errors that affe ct a substantial ri gh t

. See T e x. R. A p p . P. 4 4

. 2

. I n c o r r e c t e v id e n ti ar

y r u li n g s o n ly r ar e ly r is e to th e le v el of constitutional error. W

ill iam s v. S

tat e , 1 91 S.W. 3d

24 2, 25 7 ( Te x. Ap p. —A us tin 20 06 , n o p e t.) ; see also Tex. R. App. P. 44.2( a) ( outlining re view of c onstitut ional err ors). The exclusion of defensive evidenc e is constitutional error only if the “e vidence forms such a v i tal portion of the ca se that exclusion ef

fec tively prec luded the def

endant f rom prese nting a

defe nse.” W

illiams , 191 S.W .3d at 25 7; se e Po tie r v . S

tat e , 68 S.W .3d 657, 6 6 5 (Tex. Crim. App. 2002). I n other wor ds, if the defe ndant was not preve nted from pre senting the substance of his defe nse, the e rrone ous exclusion of evide nce w as not of a c onstitut ional nature

. Potier , 68 S.W .3d at 666.6 No unconstitutional dep ri v ati on occur red in this case . Although Curr in was not

a llo we d to qu e sti on the Al e xan de rs in f ro nt o f t he jur y re g ard ingthr e a ts G re g a lle g e dly ma de a g a ins t them, Currin was a

ble to prese nt his defense . The jury was prope rly instructed reg ardingthe law of self-de fense and wa s told to acquit C urrin if they deter mined that Currin “re asonably believed that the use of de adly

forc e on his part was n ec es s ary to protect himself a g ainst . . . [Greg ’s] use or attempted use of

unlawful de adly

forc e.” See Tex. P enal Code A nn. § 9.32(a) (2)( A) (West S upp. 20 09 ) ( lis tin g c ir c ums tanc e s in wh ic h u se of

de a dly fo rc e is a uth or ize d) . In h is t e sti mony , Curr in also insiste d th a t h e n e v e r thr e a te n e d G r e g . F urth e r , Cur r in a s s e rte d th a t h e p la c e d th e g u n in the front seat beca

use he w as g oing hunt ing later a nd that he only

went to Gre g ’s prope rty

to collect money from him. Reg ardingthe s h o o t i n g , Currin claimed that Gregthreatened to beat him when he dr ov e by the pr op e rt

y and that he on ly

sh ot G re g a ft e r f

ir st h e ari nga

g un sh ot. Dur ingthe tr ia l, Cur ri n in sis te d th a t th e sh ot w a s f ir e d b y a “ sn ipe r” fr om a c ross th e st reet

. I n a dd iti on , Curr in testified that Gre gag g ressively advanc ed towar ds his truck befo re h e p u l led out the g un. F ur the rm or e , Cur

ri n co mmunic a te d his be lie f that Gre g “ ha d to be” or “ mig ht h a ve be e n” g oin g to g et a gun when Gr egran ba ck to the building.

I n addition to Currin, severa l witnesses testified that t h ey hear d more than thre e g unshots. For e x ample, J o h n testified that he wa s in the g ener al ar ea w hen the shooting occur red and that he he ard f

our shots. J ohn also explained t h at o n e of the shots sounded diffe rent than the oth e rs , b ut he a dmi tte d tha t he did no t te ll the po lic e a

bo ut t he fo ur th s ho t w he n th e y

qu e sti on e d h im. De bo ra h a g re e d w ith

he r h us ba nd ’s te sti mony and state d that sh e he ard fo ur sh ots bu t th a t th e fi rs t

one wa s louder than the othe rs. Simil arly , Melissa J ackson testified that she lives about a block f romJ ackson te stified that she has known Curr in for over t welve y ear s and has pur chase d eleve n 4 proper ties from him over the y ear s. 7 wh e re the sh oo tin g oc c ur

re d a nd tha t sh e he ard

the sh ots . H ow e ve r, wh e n s he de sc ri be d th e sh ots , she stated that she initially hear d “a sma ll pop like it wa s either a small pistol or a f irec rac ker, a

nd then three loud booms.” J ackson a dmitted that she never told the police what she had hea rd. 4 Moreove r, althoug h the Alexanders did not testify in front of a

jury about threats Greg alleg edly made a g ainst them, other witnesses pr ovided g ener al tes t imony reg ardingthe alleg ed thr e a ts. F or e xamp le , De pu ty Chr is Whit e te sti fi e d that he ha d be e n c a lle d to the Sto re y s’ pr op e rt y on more than one occa sion due to disag ree ments betwee n Gre g and the Alexanders a nd ag ree d that the par ties had threatened e ach othe r. Simil arly , Constable Her bie Vaug han testified that he had witnessed a c onfrontation betwe en Gr egand the Ale x ander s.

I n a dd iti on

to t e sti mony

pe rt a ini ngto t

he se a lleg ed th reats, te sti mony wa s a lso prese nted desc ribing other thre ateningbehavior alleg edly

eng ag ed in by

Gre g. For

example, Deputy Whit e testified that Curr in and Gre g had both threatened one another . Also, C u rr i n’s daug hter, Dia

ne Whiteley , testified that Currin had be en pre occupie d by “thre ats [Greg ] was making ag ainst him.” Offic er J ohnny Be athar d testified that he had know n Gre g for y ear s and admitted that Gre g had a te mp e r . Si mi la r ly , Sh e r if

f D a v id G r e e n e s tate d

th a t G r e g h a s a

r e p u tati o nf

o r b e ing violent. Finally , Hollis L ewis, who was a former district attorney , and De lmon Cude, who was an inmate at the t ime of t he trial, testified t hat Greg had a reputation for not being a pea cef ul person, that Gre g was a

bully , and that Gr egwas not a la w-a biding c itiz en. Be y on d t h i s g ener al testimony , Currin testified re g ardingspecific threats Greg alleg edly made a g ainst him prior to the day of the shooting. I n his testimony , Currin rec alled thatI n his testimony , Currin stated that the threats did not bothe r him a nd that he was not scare d 5 of Gre g . 8 Gr e g ha d thre a te ne d to be a t him “in to the g ro un d, ” to “ wh oo p” him , to sh oo t hi m, a nd to b ur n h is house down. I n a dd iti on , Curr in r e la te d th a t G re g on c e we nt t o Curr in’ s h ou se w it h a “li ttle o ld

5 pistol” and that T ammy

and Gr eghad thre atene d his life. Fur ther, Currin testified that rig ht after Gre g threatened his life, he invited Gre g to g o hunting with him. When describingthe hunting tr ip, Cur ri n s ta te d th a t he g a ve Gr e g a g un to u se and th at Gr e g la te r p oin te d th e we a po n at hi m and coc ked the gun.

I n light of the prec eding , we c annot conc lude that Currin was pr evente d from prese nting the substance of his self-def

ense c laims. Accor dingly , assuming that the exclusion was

e rr on e ou s, the e rr or

is n on c on sti tut io nal in natur e and , th e re fo re , mu st b e dis re g ard e d unle ss i t

a f f e c te d o n e o f Cur

r in ’ s s u b s ta n ti a l r ig hts. See Te x. R. A pp . P. 44 .2 (b ); se e als o Tat e v . S tat e , 988 S.W .2d 887, 890 (Tex. App.—Austin 1999, pet. ref ’d) ( “ Tate II

”) ( explaining that ruling that results in “the e rrone ous exclusion of defensive e vidence is nonc onstitut ional err or if the tria l court’s ruling mere ly

offe nds the rules of evidenc e”)

. “A substantial right is aff ecte d when the e rror

had a substantial and injurious effe ct or influenc e in deter mining the jury ’s ver dict.” Tate II , 988 S.W .2d at 89 0

. I no th e r

w o r d s , th e c o n v ic ti o ns h o u ld n o t b e o v e rtu

r n e d if th e r e v ie w in g c o u rt, “ a f te r examining the re cord a s a whole, ha s fair assuranc e that the error did not influence the j ury , or had but a slight e ffe ct.” Id.

Even a ssuming that the jury would have be lieved the testimony from the Ale x ander s and assuming that their t estimony would have suppor

ted Currin’s self

-def ense c laim, the exclusion of that e vid e nc e did

no t af fe c t Curr in’ s subs tanti a l rig hts . A s d e sc ri be d a bo ve , th e jur

y wa s p ro pe rl yI n their testimonies, J ohn and Currin both denie d that this ex chang e occ urre d. 6 9 instructed on the law

of self-de fense , and Currin wa s able to elicit testimony from var ious witnesses reg ardingthreatening behavior alleg edly committed by Gre g prior to the shooting . Fur thermore , the evidenc e pre sented at trial demonstrated that Currin drove by Gre g ’s prope rty , exchang ed off ensive ha nd g e sture s w ith

Gr e g , mo ve d h is gun

fr om his ba c k seat to his fr on t se a t be fo re dr ivi ngba c k to Gre g ’s proper

ty , exchang ed obscene g estures with G reg ag ain, parke d on Gre g ’s prope rty , flashed his g un , sho t G re g in t

he ba c k thre e tim e s w he n G re g a tte mpt e d to ru n a wa y fr om t he g un , d ro ve to the police station, and told the police that he had shot Gre g . I n his testimony , Currin also stated that he would not tolerate any one y elling at him. I n addition, Curr in e x plained that his gun w ould have continued to shoot additional rounds if it had not jammed.

Mo re ov e r, e vid e nc e wa s a lso int ro du c e d s ho wi ngtha

t Curr in h a d thre a te ne d to kil l Gre g shortly

befor e Gr egwas shot. Specific ally , J ones testified that on the da y Gre g died, she he ard Cur ri n tell J oh n ov er th e ph on e that “ e ith e r you ’r e g oin g to g e t [Gr e g ] or I ’m g oin g to g e t hi m; somebody

is goingto kill hi m.” I n a dd iti on , T a mmy te sti fi e d th a t Curr in t old he r t hat th e on ly 6

re a so n G re g wa s st ill a liv e wa s b e c a us e Gr e g ha d a wi fe and c hil dr e n to take c are of . D ur inghis testimony , Offic er B eatha rd explained that a

fewday s befor e the shooting , Currin asked, “ what ca n Ido, shoot [ Gre g ]? ”

I n addition, although Curr in testified that Gre g may hav e been g oing f

or a gun, no

e vid e nc e wa s in tr od

uc e d s ho wi ngthat G re g was arme d o r atte mpt e d to us e de a dly fo rc e . In f

a c t, when the police sear ched the are a in re sponse to Currin’s asse rtion that he thoug ht Gregmay have been g oing f

or a w eapon, the police found no w eapons in the are a nea r whe re the shooting oc curr ed.I n his statement, Currin did assert that he thought Gr egwas running from the truck to g et 7 a g un. 10 Fur ther, the thre e shot g un casing s that wer e rec overe d from the scene and fr om Currin’s truck ha d all been f ired fr om Currin’s g un. Reg ardingthe alleg ed sniper, no ne of the witnesses that we re in the a rea when the sh oo tin g oc c ur

re d o r t hat r e sp on de d to th e sc e ne re po rt e d s e e inga sn ipe r. Mo re ov e r, Cur

ri n admitted that he did not know who the sniper wa s shooting at. Also, a lthough the A lexanders and Jac ks o n t e s t i f

i e d t h a t t h e y h e ar d f

o u r s h o t s , T a m m y t e s t i f

i e d t h a t s h e o n l y h e ar d t h r e e sh ots

. Simi larly , J ennife r Juhl , who was dr iving b y t h e Storey s’ prope rty when the shooting occur red, testified that she he ard thre e shots fired.

Fu rt h er m o re , wh en C u rr i ndro v e t o t h e s h er i ff ’s o ff i ce an d ad m i t ted that he shot Greg, he did not mention a sniper. I nstead, Currin state d that he drove to Greg ’s prope rty to see what Greg 7 had bee n y elling a

nd that he blew Gre g ’s “ass awa y” when Gre g tried “to run in the house.” During that same session with the police, he later state d that he shot Gr eg “flat as hell that’s what Idid.” Cur ri n’ s st a te me nt t o th e po lic e wa s p lay e d to the jur y . I n a dd iti on

to t hat r e c or din g , th e State a lso p l ay ed a recordingof a c onversation Currin had with J ones while he was at the police station. Duri ngthat te le ph on e e xch ang e , Jon e s to ld C ur ri n, “ Ihe ard

y ou kil led [ Gre g ],” and

Cur ri n responde d, “Well he knew he was g oing to g et it.”

The absenc e of any evidenc e showing that Gre g used or was a bout to use deadly

forc e ag ainst Currin prior to Curr in display ing his gun and shooting Gr egpersua des us that any err or that the district court may h av e co mmitt ed by excluding the e vidence in question did not have a substantial and injurious effe ct or influenc e on the jury ’s ver dict. I n l i g ht of the evide nce in the11

rec ord, we have mor e than a fair a ssuranc e that the e rror did not influence the jury or had but a

slight

e ff e c t. A c c or din g ly , w e c on c lud e that any e rr or di d no t affe c t a

su bs tanti a l r ig ht a

nd ov e rr ule Currin’s issue on appe al.

CO NC LU SION

Havingoverr

uled Currin’s sole issue on a pp ea l , we aff

irm the judg ment of the district court.

David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: August 27, 2010 Do No t Pu

bli sh