NO. 07-02-0010-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D APRIL 27, 2004

______________________________ JOHN IRVIN PREWITT,

Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 163 RD DISTRICT COURT OF ORANGE COUNTY; NO. B-000350-R; HON. DENNIS POWELL, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Appella nt, John Irvin Prewitt, argues in three issues tha t his conviction for murder should be rev e rsed. The first issue concerns whether the trial court erred in admitting evidence of extraneous offenses. The secon d involves the trial court’s decision which overruled his obje ctions to voir dir e questi ons pose d by the S tate, w hi le the th ird encompasses the issue of lesser-included offenses and the trial court’s refusal to submit those req uested by

appella nt. We aff

irm the ju dgment.2 Background Appellant

was a friend of

Mark Jimijo N eese (Ne ese) and bought d rugs from h im to resell to others. However, he allegedly became angry with Neese over a stolen car Neese had sold him. Other evidenc e suggests t hat he also wanted to take over Neese’s drug operatio n. During a trip to Houston on August 22, 1999, appellant and his friends Shad Brown (Brown) (the son of Neese’s girlfriend) and Billy McIntosh discussed killing Neese by luring him to a lake. Once at the lak e, they w ould shoot him. That evening, and after inducin g Neese to meet them later, appellant, Brown, McIntosh and David Venable gathered at the lake. Appellant had a gun which was going to beused as the murder weapon. So too had he made a si lencer fo r it. Furt hermore, B rown pho ned Nees e from timeto time to ascertain when he woul d arrive. Before N eese did , howeve r, appell ant left. Eventually, Neese did arrive, and he was shot and stabbed by the other men. Thereafter, they weighed down his body, dum ped it in the lake , and too k money fr om his tru ck. The next morning, appellant joined the group and helped clean the boat used to dispose of th e body. He a lso assi sted in l eaving N eese’s tr uck in th e parkin g lot of a shopping mall and received a share of the stolen money . Approx imately aweek la ter, Neese’sbody sur

faced and was dis covered b y a fishe rman in th e lake. After hearing stories that Brown was talking about the murder, the police obtained
a confession from him. The information he imparted led to the recovery of the sil encer. Moreover, appella nt’s fing erprints were dis covered o n tape wr apped ar ound theitem. Eventually, appella nt gave astatement to the po lice. He admitted to providing the gun and the sile ncer.3 Issue Three – Lesser-Included Offenses In his third and last issue, which we opt to consider first, appellant contends that the trial court erred in refusing to grant his request to incl ude in the c harge var ious les serincluded offenses

. T he latter consisted of an instruction on manslaughter, criminally negligent homicide, and deadly conduct. We overrule the issue. Assuming arguendo tha t the crimes encompassed by the requested instructions
were lesser-i ncluded off enses of murder, the complainant must still show that evidence appeared of record permitting a jury to rationally find that appellant committed only the lesser offenses

. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Gilchrest
v. State , 904 S.W.2d 935, 940 (Tex. App.–Amarillo 1995, no pet.). Here, appellant alleges that such evidence appeared in his written statement to the po lice. Th e specifi c comments to which he alludes follow: When this started out – when this started, I thoug ht it was for threats to [Neese], and I did not intend for him to die or to be hurt. I liked Jim, and I am sorry he was killed. If I would have – if I had known i t would have co me to this, I wo uld havecalled Jim and warned hi m. Bythe time the foreg oing utte ra nc e was made, appellant had also admitted (in his statement)

to 1) being present while the group discussed shooting Neese, 2) knowing that RickMassey was attemptin g to find a gun wi th which to shoot Ne ese, 3) te lling Ma ssey to
use one of his (Massey’s) own gu ns, 4) retrieving his (appellant’s) own gun and h anding itto David Venable when Massey directed him to do so, 5) later obtaini ng a silencer he (appella nt) builtto use with the weapon he delivered to Venable, 6) witnessing Brown and Venable install the silencer on the weapon h e obtained, 7) knowing that the weapon was “abouthalf loaded,” 8) hearing others discuss how to dispose of N eese’s body, 9) hearing4

that Neese would arrive at the lak e “before midnight,” and 10) leaving since he “did n ot wantto be around during the shooting .” (Emphasis sup p lied). Thus, from the context of the utterance

cited by appella nt, we see that by the time he left for the evening he knew of the intende d shooti ng and p rovided the weap on to be used. See Mean s v. State , 955 S.W.2d 686, 692-93 (Tex. App.–Amarillo 1997, pet. ref’d un timely filed) (hol ding that a defend ant cannot dissect a record for words which may be rendered ambiguous when taken from their context but rather evidence purportedly entitli ng a defe ndant to a lesserincluded offense must be viewed within its context). This is pivotal because what he may ha ve though t or intended when the group “started out” does not negate the effect of his actions and knowledge when he departed thescene. Again, the State accused and tried appellant

as a party to the murder, and by the t ime he left the lake, appellant had develop ed the re quisiteintent and committed the requisite acts to inculpate him as such. See T EX
. P EN
. C ODE A NN . §7.02(a)(2) (Vernon 2003) (defining a party as one who soli cits, encourages, directs, aids, or attempts toaid another person to commit the offense while acting with theintent to promote o r assist in the co mmission of the of fense). In short, because the tenor of the evidence at the t ime the murde r occurred controls , see Solomon
v. State , 49 S.W.3d 356, 369 (Tex. Crim. App. 2001) (stating that whe ther the defendant intended to kill the victim before the robbery took place matters not if the re levant l iabilit

y elementswere establishe d at the t ime the c rime occu rred), Gilchres t v. State , 904 S.W.2d at 940 (stating that“the evidence at the moment of the attack and immediate departure wa s all controlling”), and bec a use by that time appellant had already secured the murder
w eapon for Massey while knowing its intended use , whatever thoughts he may have5

originally had about merel y t hreatening Neese were of no probative value viz his entitleme nt to an i nstructio n on a le sser offen se. Nor can we say that the comment about his warning Neese if he “had known it would have come to this” is of any consequence. This is so for several reasons. First, we have
no idea about what he meant when he used the word “this.” T he word could equally refer to the murde r of Nees e, th e fact of hi s arrest for that murder and the realization of the potentiallyonerous nature of the accompanying ramifications, or the fact that he may have felt remorse. And, b ecause it could be any of those three things, if not others, then we must conclude that

the comment l acks prob ative val ue of any thing. Hammerly Oaks, Inc.
v. Edwards , 958 S.W.2d 387, 392 (Tex. 1997) (holding that evidence which can reasonably be construed in two different and opposing ways is n ot evidence of anything). Second, when placed in context, the utterance can hardly be interpreted as eviden ce illustrating a wantof knowledge about the purported shooting or intent to aid in that endeavor. Again, before uttering it, appellanthad already admitted to acquiring the gun an d silencer. And that he knew of their intended use is both clearly and indisputably exemplified b y his statement that he left the scene since he “did not want to b e around during the shoo ting.” Logicwould not permit a juro r to rationally conclude that appellant was un aware of the intended shooting given that he left becau se he did not want to be at the shooting. Consequently , th e passage at issue could only refer to his subsequent arrest, his subsequentfeelings of remorse, or something else, none of which negate his liability as a party.1 Appell ant does notargue t hat t he Stat e fai led to di sclos e it s int ent t o use th e evid en ce . He m ere ly

con tend s tha t the dis closu re by the S tate w as n ot su fficiently s pec ific. 6 In sum, the evidence alluded to by appell antdoes not negate one or mo re elemen ts of his responsibility as a party for the greater offense of murder. Thus, it would not permit a jury to r

ationall y conclu de that i f he was guilty, i t would b e of only a lesser offense. Issue One - Extraneous Offenses We next co nsider a ppellan t’s first i ssu e. Therein, he complains about the trial court’s
a dmission of evide nce regar ding ex traneous offenses. Purporte dly, it was irrele vant, its undue prejudice outweighed its probative value, and he was not accorded sufficient prior notice of the State’s in tent to use the evidence. 1 Though he appears to suggest that the extraneous offensesinvolve d were ma ny, the re cord excerpts he m entions allude o nly to two examples. T hey pertained to comments by two witnesses about appell ant buying drugs from Neese and selling drugs to others. And, b ecause itis not our obligat ion to peruse through the r ecord in s earch of instances where evidence of other extraneous offenses mayhave been admitted, we limit our consideration of appellant’s complaint to the instances mentioned above. So too do we overrule the issue. As to the matter of prior notice, Texas Rule o f Evidence 404(b) does obligate the prosecutor

to afford a defend ant reaso nable no tice of i ts inte nt to introd uce evidence of other crimes, wrongs, and bad acts during its case in chief. This, of course, assumes that the defendant requests notification; should he not, then there is n o duty to notify. H enderson v. State, 29 S.W.3d 616, 624 (Tex. Ap p.–Houston [1 st Dist.] 2000, pet. ref’d) (holding that the requirement of notice applies only if the defendantmakes a timely request to the State ); Webber v. State, 21 S.W.3d 72 6, 728 n. 1 (Tex. App.–Austin 2000, pet. ref’d)7

(holding that the record failed to show the defendant requested notice of intent to offer bad acts into evidence). Here, we have failed to fi nd in the record a request by appellant for notice of extraneous offenses, and he has failed to direct us to any such notice. Therefore,
we canno t say that

the Statewas und er a duty t o comply with Rul e 404(b). Furthermore, even if a request was made, we would have to reject appella nt’s complaintgiven i ts tenor. That is, appella nt conten ds that th e State failed to compl y with Rule 404(b) b ecause th e notice did not ment ion any “specifi c bad act .” Here, t he State included the following in its “Third Supplemental Discovery Compliance”: “Defendant used and possessed illegal narcotics, including co caine and marihuana. Defendant would also buyand sel l those i llegal narcotics .” Next, the testimony mentioned in his brief and about which he now complains encompas sed one w itness stati n g that appellant bought drugs from Neese and another saying that appellant sold drugs to her. N o specific transactions
were mentioned in either excerpt. By juxtaposing the testimony of the two witn esses wi th the notice a fforded b y the Sta te, one can reasonably conclude that the generality of the State’s disclosure comported with the generality of the testimony abou t which he complains. Given this comparability and the generality inhe rent in the testimony at issue,
we reject the assertion that to be reasonable, the notice contemplated un der Rule 404(b) had to in clude in formation about specific acts or tr

ansactio ns. As to the relevance of the evi dence , we note that it provided a link in the chain of motive. Simply put, the S tate ende avored to prove that appellant participated in the murder to enhance his position in the drug trade. That is, he sought to take over the trade routes b ei ng serviced by Neese. And, while motive may not be an element of murder, it nonetheless reflects upon the mens rea of appellant as a party to murder. In other words,8

the evidence provides support for the proposition that appel lan t aided in the murder of Neese while a cting wi th the in tent to pr omote or a ssist in the murde r. So, that appellan t boughtand sol d drugs was indee d releva nt. See T EX
. R. E VID
. 404(b) (stating that eviden ce of other

crimes, w rongs, an d acts isnot admi ssible to prove th e character of a person in order to show action in conformity therewith, but may be admitted for other purposessuch as motive, p reparatio n, plan o r intent). As to the pr

ejudicia l effect of the evi dence su bstanti ally outwe ighing its probative value, see T EX
. R. E VID . 403 (stating that evidence, although relevan t, may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”), we cannotsay that evidence of appellant’s drug dealing took an inordinate amount of time to develop, given th e totalit y of the e vidence presente d. So, i t had little likelihood of distracting the jurors

from assessing appellant’s culpability for the in dicted offense. Indeed, given its tendency to prove motive and intent, one could reasonably conclude that it actually served to focus the jury’s attention on the underlyi n g crime and why it occurred. And though conviction was not utterly dependent upon its p resentation to the jury (given the testimony of Shad Brow n and t he statement of appellant inculpating himself), it nonetheless helped place th e murder w ith in a fram ework ea sily und erstandab le to the jury, i.e. that appellant

wanted Neese ki lled so he could take over. Given this, we cannot say that the trial court’s decision to admit the eviden ce despi te appellant’s Rule 403 objection fell outside the zone of reasonable disagreement and, thereby, evinced an abuse of discretion. See Montgom ery v. Sta te , 810 S.W. 2d 372, 392 (Tex . Crim. App. 1991) (stating that whether the trial court erre d in admi tting evi dence de pends up on wheth er its decision fell9

outside the z one of re asonable disagreement and, therefore, constituted an abuse of discreti on). Next, and assuming arguendo that the trial cou rt did err in admitting the evidence,
we would nevertheless find that the error did not affect an y substantial right of the appella nt. See T EX
. R. A PP
. P. 44.2(b) (stating that any non-constitutional error must be disregarded unless i t affects s ubstanti al rights ); see Avila v. State , 18 S.W.3d 736, 741-42 (Tex. App.–San Antonio 2000, no pet.) (noting that the erroneous admission of evidence of extraneous offenses was not constitutional error). As discus sed under the foregoing issue, appellant was tried for being a party to murder. And, to the extent that the topics of drugs and appellant’s involvement therewith were de veloped, such evidence was relevant to the issu e of motiv e. At thevery lea st, it, cou pled wi th other evidence, tended to illu strate
a desire to eradicate Neese so he (appellan t) could advance in the trade. Thu s, t here existed a legitimate purpose underlying the State’s effort to admit i t, and the State was not using the evidence simply as a way to invo ke emotio nal reac tion by t he jury. See Motilla
v. State , 78 S.W.3 d 352, 35 7-58 (Tex

. Crim. App. 2002) (stating that when addressing harm, the appe llate co urtshould consider, among other things, the character of the alleged error and how it mi ght be co nsidered in conn ection w ith the o ther evid ence). More importantly, appellant himself acknowledged in his brief that the testimony of Shad Brown “was more then [sic] sufficient to establish the ele ments of the of fense charged,” i.e. a party to m urd er. With that we cannot disagree. Brown amply describ ed howappellant not only helped plan the killing but also secured the weap onry to be used to effectuate

it, as did appellant himself. Consequently, the evidence of appellant’s guilt as
a party to murder

was and is more than ove rwhelmin g. See Motil la v. Sta te , 78 S.W.3d at10

358 (stating that the evidence of defenda nt’s guilt is a factor to consider in assessing harm). Furthermore, the punishment assessed was 35 years imprisonment. Hi s conviction for murder, th e latter b eing a fe lony of t he first d egree, T EX
. P EN
. C ODE A NN . §19.02(c) (Vernon 2003), could have resulted in a sentenceof 99 yea rs or life

. Id. §12.32(a). Thus, appellant

having received a term well below the maximum allowable hardly suggests that the evidence of his drug involvement influenced the amount of puni shme nt levied, especial ly given the exte nt of hisinvolve ment in th e premedi tated murd er. In sum, and upon reviewing the entire record, we cannot say that admission of the evidence in question had a substantial and i njurious effect or inf luence on the verdict of guiltor punis hment ass essed. See Hurrelbrink v. State , 46 S.W.3d 35 0, 356-57 (T ex. App.–Ama ri llo 2001 , pet. ref’d) (stating that a substantial right is affected when the error had a substa nti a l and injurious effect or influence in determining the jury’s verdict). So, even if i t was erro r to admit it, the mi stake was

harmless

. Issue Two - Voir Dire Question Via his second issue, appellant complains that the trial court erred in overruling his objections to the State’s voir dire question which attempted to co mmit the p rospective jurors to a specific set of facts. We overrule the issue. The two instances to which appellant objected are: [Prosecutor]: . . . Let m e just - - Ms. Ash more, if you found out, hey, there was a real good reason that made a lot of sense that you could ki nd of empathiz e with, like, hey, this guy sold drugs to this man’s kids, you know, ten-year-old, twelve-year-old - - doesn’t really matter. You know, maybe he shouldn ’t have d one it, b ut you ca n sure se e where h e came fro m, right?11

Nowwould that be the same as, though - - I’m goin g to use you now, M r. Le[B]lanc. I apologize. Say Mr. LeBlanc just wanted apiece of the action, wanted the money, wanted what the drug dealer had, wanted to take over the deal. Do you see a difference there? [Venireme mber]: (No

response ). [Prosecutor]: I hop e you do. If you do n’t, tell me. [Defense Counsel ]: I will object to that. Th at’s an i ntent to commit the juror - - perspective [sic] juror to a specific fact circumstance. The Court: Overruled. * * * [Prosecutor]: Let me see if I can go about it this way: Mr. Procella, as I said, is the brains of the operation. Mr. Procella, let’s just say, for the purposes of this hypothetical or this example, doesn’t even d rive the get away car. Let’s just say he never even sets foot out of his house, but we meet at hishouse. He sets it all up. He does the research. H e go es down to the bank a few times. He cases the place. He takes a few su rveillan ce photos when the y’re notlooking . He find s out whe re the camer as are in the bank . He sits down, diagramsthe bank, does a little floor plan, and sits down wi th it and tells me and Ms. Robichaux how we need to g o about this and who the younger teller is and w ho we ne ed to targ et and al l that. All right. He has encouraged us. He has aided us. He has helped us commit this offense, yet he has never set foot outside his house. Under that fact situation, who would ag ree that h e is still, nonetheless, a party to this bank robb ery offens e that Ms. Robicha ux and I commit? [Defen se Coun sel]: Your Honor, we now renew our objection. That is a specific question, and it’s meant to commit the perspective [sic] jurors to a specific fact circ umstance. It’s an improper hypotheti cal, als o. The Cour

t: Okay. O verruled

. Next, authority prevents an attorney from commi tting a p rospectiv e juror toa verdict based on a set of hypoth etical fa cts. Allridge v. State, 850 S.W.2 d 471, 48 0 (Tex. C rim. App

. 1991), cert. deni ed, 510 U.S. 831, 114 S.Ct. 101 , 126 L.E d.2d 68 ( 1993). Furthermor e, a que stion is of that ilk if it solicits a veni reman to resolve or refrain from12

resolving an issue

on the b asis of o ne or morefacts contained in the questio n. Standefer
v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001). Howeve r, one mustremember that jurors may be asked whether they can follow aparticul ar, relev ant law. Id. at 181. And , litiga nts ca n pose questions to assess whether any potential juror would be unable to do
so. So, care must be taken in constructing a hypothetical that le gitimately delves into the possibi lity

of disclosing basis upon which to challenge a juror while avoiding the inclusion of facts unn ecessary for that p urpose. Id. at 182. With this said, we turn to the questions before us

. With respect to the first, the State was explaining the effect of motive. While doing so, it asked if the jurors discerned some difference between a situation wherein the motive
was to seek revenge for the victim having sold drugs to the defendant’s children and wherein the motive was to take over the victim’sdrug bus iness. T he Statedid not ask the jurors whether they would resolve or refrain from resolving an issue based on those facts. Therefore, we cannot

say that the Statewas aski ng for a commitment or that th e trial court abused i ts discre tion in o verrulin g appell ant’s ob jection to

the ques tion. With respectto the second situation, the State was attempting to explain the law of parties. Furthermore, the question did ask the venire members to resolve an issue based upon a setof hypothetical facts. Thus, it could be said that the query sought a commitment from them. Nevertheless, the State may rely on the law of parties to secure a conviction, and potential jurors ar e challen geable for cause based upon an inabi lity to abide by that legal concept. Nichols

v. State, 754 S.W.2 d 185, 19 7 (Tex. C rim. App. 198 8), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989), ove rruled on other grounds by Butler v. State, 803 S .W.2d 125 (Tex. Crim. App. 1992). Therefore, the question wa s13

proper if it did n ot contai n facts other tha n those n ecessary to establish the challenge for
cause. And, in that regard, appellant never in forms us of thefacts whi ch he con siders to be unnecessary. Yet, assuming that the question does contain irrelevant hypothetical facts, we would nonetheless find theerror har mless. Se e Paustian v. State, 992 S.W.2d 62 5, 628 (Tex. App.–El Paso 1999, pet. ref’d) (applying Texas R ule of Ap pellate Procedur e 44.2(b)

to determ ine the ha rm resulting from a litigant attempting to improperly commit a juror to a hypothetical and find ing that the appe llant wa s harmed). Unlike the situation in Paustian , the State he re did not ask each member of the veni re to respond to the hypothetical. Thus, itwas less likely to become ingrained within the minds of the veniremen through repetition. Additionally, the facts

in the hypothetical posed by the State were utterly distinct from those which were to be used to establish appellan t’s culpability for murder. Nor was t he S tate posing a h ypot hetical that effectively relieved the potential jurors from having to find the existence of

a particular element of the crime, again, unlike the situation in Paustian . And,
as to the relevance of the question, the State sought to determine whether anyone on the venire disagre ed with t he law a uthorizi ng convi ction as a princi pal th ough th e defendant
m ay only ha ve been aparty. Th at was a permissi ble topi c to cove r, a s noted above

. Moreover, by the time the hypothet ical was posed, th e State had already asked a similar “r obbery” questio n to the p anel (wh erein theprosecutor acted a s the part y). Appellan t objected neither to it nor a venireman’s answer to it. Thus, exposure to the supposed taint arising from the hypothetical now at issue already occurred without any complaint by the appella nt. Next, the question about which appellant complains was asked during the first half of the State’s rather long voir dire. Thus, the timing of the hypothetical was not such14

as to allow the venire member to mentally linger on the subject. These i ndicia coupled w ith those co nsidered under is sue two w hich wei ghed aga inst a fi nding of harm are determinative. Assuming that the question asked was improper, we concl ude that it had little to no influence or effect upon the verdict rendered or punishment levied. Having o verruled each iss ue, we af firm the ju dgment of

the trial court.

Brian Quinn Justice

Publish

.