### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00252
- CR

Kendrick Tremayne Newman, Appellant

v. The State of Texas, Appellee

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 17
- 0293
- K26, THE HONORABLE DONNA GAYLE KING, J U DGE PRES I DING

M E M O R A N D U M O P I N I O N
A jury convicted Kendrick Tremayne Newman of the first

- degree felony offens e of murder , fou nd that he did not act under “ sudden passion , ” and assessed his punishment at eighteen years ’ imprisonment

. See Tex

. Penal Code §§ 12.32(a) ( establishing punis hment range
f or first

- degree felony offense at five to ninety

- nine years or life imprisonment ) , 19.02(b)(1) (defining offense when defendant intentionally or knowingly causes i ndividual ’ s death ) , (c) (pro v iding t h a t murder is first

- degree felony offense un less defendant proves , under subsection 19.02 (d), that he acted “under the immediate influence of sudden passion arising from adequate cause ” )

. The district court rendered judgment consistent with the ju r y’s ver d i ct. I n three issues o n appeal , Newman contends that the district court abus ed its discretion by admitting
certa i n evid ence du ring the gu ilt

- innocence phase of trial and by denying his requested2

instruction on the defense of necessity. We will a ffirm th e district court ’s judgment of

c onviction.

BACKGROUND 1

A jury convicted Newman of murdering John Ammon after an altercation inside a convenienc e store

. The medical examiner determined that Ammon sustained e leven gunshot wounds to hi s body causin g his de a t h

. T he jury heard testimony from witnesses to the events preceding the offense , in cluding some w ho saw the shooting occur outside the store ’ s e n t r a n c e . Additionally, as set forth f urther in our discussion of Newman ’ s first two issues, t he jury h eard a d e t ective testify that the gun recovered by police was not registered to Newma n a nd heard
Ammon ’ s wife testify that Ammon was her husband of fourteen years , father of their two sons , and a war veteran.

During the charge conference , N ewma n reques ted jury i nstruction s on self

defense and necess ity

. The district c ourt granted the request for the self

- defense instruction but d enied the necessity instruction

. H o w e v e r , when the charge conference resumed the next

mo r ning , Newman aba ndoned his request fo r the n e cessity instruction.

T he jury found Newm a n guilty of mur der a n d assessed punishment , and the district cou rt rendered judg ment on th e verdict. This appeal followed

.

1 We provide on ly a brief background because Newman raises no challenge to the sufficiency of the evidence sup porting h is con victio n and a detailed r ecitation of the facts underly ing h is c onviction is unnecessary to our dispos ition of his appellate issues. See Tex. R. App. P . 47.1 (requiring issuance of opinion that is brief as possible but addresses every issue raised and necessary to final disposition of appeal)

.3 DISCUSSION Gun
- Registration Evidence

In his f irst issue, Newman contends tha t the di s t rict cour t abused its di scre tion by admitting evidence that the gun used in the commissio n of the offense was not registere d to him.
Newman co ntends that this evidence showed that he “possessed a st o len firearm [,] which constituted e xtraneous of fense evi d e nce [,] ” and that it affecte d the jury’s verdict by “ unfairly paint [ing him] as a viole nt , law

- breaking thief ” during the g uilt

- innocence phase of trial

. E xtran eous - offens e e vidence necessarily involve s proof of prior criminal conduct by the acc used.
McK a y v. State , 707 S.W.2d 23, 31

- 32 (Tex. Crim. App. 1985) ; Baxter v. State , 645 S.W.2d 812, 815 (Tex. Crim. App. 1983) ( “ [B] efore the rules relating to the admissibility of extraneous offenses come into play, there must be some type of inadmissibl e evidence p r esented of the accused ’ s prior criminal conduct for error to be present. ” ). If the evidence fails to show that an offense was committed or t o conne ct the accu sed to the offense, then evidence of an extraneous offense is not established. McKa y , 707 S.W

. 2 d at 32

.

In McKay , the trial court heard evidence that at the time of his arrest, McKay was found driving a vehicle belonging to th e deceased’s father. I d. at 31

. Police testified that a license

- plate check showed that the license plates on the vehic l e were not registered to that vehicle but t o one owned by a resident of another city. Id. The Court of Criminal Appeals held that this testimony did not show that the vehicle was stolen, establish that McKay stole the vehicle, or implicate the vehicle i n a ny misconduct , and th us , that no improper extraneous

off ense evidence was admitted. Id. at 32

.4 Here, Newman comp lains of the testimony of Detective Jeff Hill of the Round Rock Police Department , who testifie d, over objection, that the gun recove red b y p ol ice officers was not reg istered to Newman :
Q [Prosecutor]: During your investigation into this case, did

— were you aware of whether or n ot a firearm was recovered fro m the scene?
A [Detective Hill]: I was aware

. Q [Prosecutor]: Okay. And wer e yo u a war e whether or not

— generally speaking, do firearms have serial numbers?
A [Detective Hill]: They do.

. . . . Q [Prosec utor ]: Did you determine whether or not the gun that was found at the s cene was registered to John Ammon?
A [Det ective Hill] : I t was not. Q [Prosec utor]: Was it registered to

— as yo u recall, to anyone under the name of Am mon?
A [D etective Hill]: No. Q [Prosecutor]: Was the gun found at t he sc ene registered to Kendrick New man?
A [Detective Hill]: No. Q [Pros ecutor]: Wa s i t r egis tered to anyone with the name Newman?
A [Detecti ve Hill]: No. [Prosecuto r]: Pass the witness.

Dete ct ive Hill did not state that the gun was stolen , i m p l i c a t e Newman i n a ny alleged th eft of the
gun, or suggest that Newman knew the gun was st ole n . Det ective Hill ’ s testimony did not provide evidence of an extraneous offense because it fails to show that a theft of the g un was5

committed or that Newman was connected to any such theft. See id. We conclude that Newman failed to show t hat Detective H i l l ’ s testimony constituted evidence of an extraneous offense or that the district cour t a buse d its discretion by adm itting th is testimony. See id. Accordingly, we

ove rrule Newman ’ s first issue.
Wife ’ s Testimony About Amm on

I n h is seco nd issue, Ne wma n contends that the district court abused its discretion by adm itt in g irrelevant and unfairly prejudicial evidence from Ammon’s wife during the guilt

innoc ence phase o f trial . She testified that she was married to Amm on for f ourte en years ; that they ha d t w o sons together ; a nd that Ammon served in the military , including deploy ment d uring the war in Iraq

. Newm an complains that such informati on was ir r elevant to a determination of his guilt o r innocence and that it constituted victim

- impact evidence

. Se e T e x . R. E vid . 401 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidenc e ” ) ; Miller

– El v . S t ate , 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (noting that victim

- impact evidence generally does not tend to “any tendency to make

more or less probable the existence of any fact of consequence at the guilt stage of trial.” ). He also complains that any proba tive value of that testimony was ou tweighed by its unfair preju dice and served on ly to sway the jury based on who Ammon was, rath er than the ultimate question of
Newman ’ s guil t or innocence of the offens e . S ee id. R. 403 ( a uthorizing exclusi on o f ot herwise relevant evidence when its probative value is substantially outweighed by danger of unfair prejudice )

. Texas Rule of Evidence 403 authorizes exclusion of evidence only when there is a clear dispa rity betwee n its degree of prejudice and it s pr obat ive value. Davis v. State , 3296

S.W.3d 798, 80 6 (Tex. Crim. App. 2010)

. “ The term ‘ probative value ’ refers to the inherent probative force of an item of evidence

— that is, how strongly it serves to make mo re or less probable the existence of a fact of cons equence to the litigation

— coupled with the proponent ’ s need for that item of evidence. ” Id. ( quoting Casey v. State , 215 S.W. 3d 87 0, 879 (Tex. Crim. App. 2007) )

. “ ‘ Unfair prejudice ’ refers to a tendency to suggest decision on an improper basis,

c ommo nly, though not necessarily, an emotional one. ” Id. (quoting Case y , 215 S.W.3d at 880 )

.

Victim

- impact evidence is evidence concerning the effect that the victim ’ s death will have on others, especially the v ictim ’ s fam ily members

. Haley v. State , 17 3 S. W.3d 510, 517 (Tex. Crim. App. 2005)

. V ictim

- impact evidence generally lacks “any tendency to make more or less probable the existence of any fact of consequence at the guilt stage of trial.”
Miller

– El , 782 S. W.2d at 895

. But b ackgroun d evi dence tha t do es n ot describ e the physical, psychological , or economic effect of a crime on the victim’s family has been held admissible

. See Renteria v. State , 206 S.W.3d 689, 705 (Tex. Crim. App . 2006) ( concluding that e vidence from victim ’ s mother about where vi ctim atte nded school, what type of student she was, and what she liked to do was not victim

- impact testimony); Matchett v. State , 941 S.W .2d 922, 931 (T ex. Crim. App. 19 96 ) ( concl uding that victim ’ s wido w’s testimony stating that she h ad be en married to hi m for twe nty

- five years , that they had five children together , that he was home alone on night of his murder, and identifying h im in photograph with friends was not victim

- impa ct testimony ) ; DeLarue v. State , 102 S .W.3d 388, 403

- 04 (Tex. App.

— Houston [14th Dist .] 2 003, pet. ref ’ d ) ( concluding that testi mony from vi ctim ’ s mother about how she learned of her daughter ’ s death and identifying photographs of victim that predated offense was “ victim

background information , ” not vic tim

- impact evidence , because it did n ot c oncern physical, psychological , or economic effect of crime on victim or her family but showed that mother7

“ properly fixed the date of the e vent in her mind ” and provide d background information about victim ) ; see also Brown v. State , No. 03

- 04

- 005 35

- CR , 20 06 Tex. App. LEXIS 7556, at *7 (Tex. App.

— Austin Aug. 25, 2006 , no pet. ) (mem. op., not designated for publication ) (conc l uding that mother ’ s testimony was admissible because it “ simply placed the deceased in context as a real human being, allowin g the jur y to appreciate the ‘ lifelike ’ quality of the factual narrative rather than being forced to view the crime only as a cold and abstract concept ” )

. W e review a chall enge to a trial court ’ s d ecision to admi t evidence under an abuse

- of

- discretion sta ndard

. Da vis , 329 S. W.3d at 80 3

. T he trial court a buses its discr etion only when its decision to a dmit evidenc e is “outside the zone of reasonable disagreement.” I d. Here, the testimon y from Ammon ’ s wife gave the jury some context abo ut Ammon ’ s work a nd fam ily life

. But even if her testimony was not helpful to the jury as “ victim

background information, ” we conclud e that her tes timony was also not determinat ive of a ny fact of consequence to the prosecution and that the State’s need for her testimony w as sli ght. See Casey , 215 S.W. 3d at 879

. Newman complains only about Ammon ’ s wife discussing the length of h er marr iage to Ammon , their children ’ s names and ages, and Ammon ’ s history of military service

. On cross

- examination, Newman esta blished that Amm on ’ s w ife was not living with
Ammon at the time of his death

.

The district court could have deter mined , wi thin th e zone of reasonable disagreement , that t he challenged testimony from Ammon ’ s wife did not have a tendency to suggest a decision on an impr oper em otio nal basis such that the jurors would convict New man of

m u rder even if they had r e asonable doubt of his gui lt. See D avis , 329 S.W.3d at 806

. Accordingly, w e conclude that the district cou rt did no t abu se its discretion by implicitly8

determining that no cle ar disparity existed between her testimony’s degree of prejudi ce and its prob at ive value and thus, admitt ing her testimony

. See id. We ov errule Newman ’ s second iss ue.

Denial of Instructi on on Necessity

In his third is sue, N ew man conte nds that th e d i s trict court abus ed its discretion by denying his requested instruction on the defense of necessity

. Our r eview of c harg e - error issues begins with a determin ation of whether error exists and then an evaluation of whether any h arm resulting f

ro m th e error r equi res reversal

. See Arteaga v. State , 521 S.W.3d 32 9, 333 (Tex. Crim. App. 2017) ; Price v. Stat e , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) ; Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)

. H ere , the record reflects that on the m orning t he

c h arge conference resumed , Newman abandoned his request fo r th e necessity instruction :
Prosecutor] : Oh, and can I just put one other thing on the record? It ’ s my understanding

— and we had a discussion off the record last night before we left t hat the defe n se was abandoning their request fo r necessity, and we just never did that on the recor d, so I jus t wante d to make sure that was clear. [ D efense counsel]: That ’ s correct, Your Honor.
T he Court : Very well.

W e conclude that any error as t o t he di stri c t court ’ s denial of the necessity instruction was not preserved because Newm an ab andoned his request for it. See Vega v. State , 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (conc luding that trial court has no duty to instruct jury sua sponte on unreque sted defensive issues and that “ defendant cannot complain on appeal about the tri al judge ’ s failure to include a defensive instruction that he did not preserve by request or objecti on: he has procedurally defaulted any such complaint ” ) ; Long v. Sta te , 823
S.W. 2 d 259, 279 (Tex. Crim. App. 1991) (concluding that defendant preserve d no er ror as to one9

definition omitted from charge

— alth ough defendant initially objected to lack of that d efinition

a nd submitted his proposed definition

— because record refl ect ed th at d e fendant later aba ndoned his objecti ons by accept ing trial court ’ s cha rge ); s ee also L aBlanche v. State , N o . 14

- 95

- 01133

- CR, 1999 Tex. App. LEXIS 6794, at *12 (Tex. A pp.

— Houston [14th Dist .] Sep t . 9, 1999 , pet. ref ’ d ) (mem. op., not designated for publ icat i on) ( decl ining to address defe ndant ’ s co ntention s that trial court e rr ed by denying her requests for jury

- charge instructions that she abandoned in her post

- submission motion )

. According ly, we overrule Newman ’ s third and final issue.

CONCLUSI ON We affi r m t he district cou rt ’s judgment of co nviction.

______________ ________________________ ____ Gisela D. Triana , Justice Before J ustices G oodw i n, Triana, and Sm it h
A ffirmed Filed: October 21, 2020
Do N ot Publish