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

NO. 03-0 7 -00 179 -CR

St e ve n Jo hn M ahe r , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF LAMP ASAS COUNTY , 27TH JUDICIAL DISTRICT

NO. 7959 , HO NORAB LE JO E CARROLL , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appel lant Steven J ohn Maher g uilty of ag g ravated assault and obstruction. See Tex. P enal Code A nn. §§ 22.02 , 3 6
. 0 6 (W es t Supp. 2007). After f inding that app e lla nt h a d a pr e vio us fe lony

c on vic tio n, the c ou

rt a sse sse d p un ish me nt at th ir ty -f ive y e ars ’ imp ri so nme nt fo r th e ass ault and a t tw e nty

y e ars ’ i mpr iso nme nt f

or the ob str uc tio n. We w ill
ov e rr ule a pp e lla nt’ s c ha lle ng e to t

he le gal suff

ic ie nc y of the e vid e nc e , b ut w e wi ll s us ta in h is contention that the trial c ourt er red by admitting extraneous misconduc t evidence and re verse the obstruction conviction.

Count one of the indictment, for a g g ravat ed assault, alleg ed that appe llant intentionally

or knowingly threatened Miche lle Colli ns with imm inent bodily injury by brandishing a hatc het at her , and that the hatchet wa s a dea dly wea pon in the manner of its use or intended use. Se e id . § 22.02(a) (2). Count two of the indictment, for obstruction, alleg ed that appe llantThe trailer was the residenc e of Geor g e Truitt. T ruitt testified that appellant wa s stay ing 1 there while Truitt was out of town on a trip. J acobs testified that while Collins was trying to g et appe llant out of her c ar, a ppellant aske d 2 J acobs to take the knife be fore he did “somethingstupid.” 2 i n t en t i o n a l l y o r k n o wi n gl y t h re at en edt o h arm C o l l i n s “b y an u n l aw fu l ac t , t o -w i t : re s t ra i n i n g, threatening with a hatche t, and damag ing he r ca r, to preve nt or delay ” Collins’s service “ as an informant and a

witness.” Se e id . § 36.06(a) (2)( A). Colli ns testified that she, appellant, and J oseph J acobs were at a tra iler house in rur al L ampasa s County

on September 29, 2006, “talking and basica lly having fun.” Colli ns said that she

1 and appe llant “started kind of having a littl e bit of an ar g ument” over a broke n g lass pipe of the sor t used to smo k e n ar co t i cs. She testified that she w ent to the bedr oom to avoid the argument, but appellant f

ollowed, jumped on her , and beg an to c hoke her. Collins responded by biting appe llant on the che st and striking him with her fists, and he beg an to slam her he ad on the f loor. J acobs he ard the ru c ku s, c a me to t

he be dr oo m, a

nd se pa rate d th e c omb a tants
. W h en t h i s fi gh ten d ed , ap p el l an tl ef t t h e ro o m an d

C o l l i n s b ega nt o p ac k

h er t h i n gs to leave. When Collins and J acobs w ent outside, howeve r, appe ll an t wa s sitti ng in Coll ins’s car

. Colli ns a s k e d a

p p e ll an t to g e t o u t o f th e c ar , b u t h e r e f u s e d

. Co ll in s te s ti f

ie d th a t a p p e ll ant had a “buck knif

e betwe en him and the se at.” This knife, introduce d in evidence , was a hunting knife 2 with a five- inch blade. Colli ns said that this encounter “ beca me another

fig ht,” duringwhich one of he r c ar w ind ow s “ g ot bu ste d ou t.” Col lin s a c kn ow le dg e d th a t sh e br ok e the wi nd owwi th h e r f ist

. F i n a l l y, a p p e l l an tg o to u to f

t h e c ar , an d

C o l l i n s an d

J a c o b s dr o v e aw ay.The packag e was addre ssed to Colli ns at her f ather ’s addr ess, but Colli ns had bee n told by 3 appellant that a packa g e for him wa s being sent to he r. She testified that she did not know what the packa g e conta ined. J acobs te stified that appellant told Collins t hat his “seve n g rams better be her e.” 4 3 Colli ns drove to her

f a th e r ’s house whe re a

packa g e for

appellant ha d been de livered. 3 Col lin s d e c ide d to take thi s p a c ka g e to a pp e lla nt “beca us e I did

n’ t w a nt a ny thi ngto d o w ithhim

an y mo r e . ” Wh e n Co ll in s an d Ja c o b s r e tu r n e d to th e tr a il e r , a

p p e ll an t “ w a lk e d ar o u n d th e s id e of the hous e” c ar

r y in g th e kn if

e an d a h a tc h e t. Co ll in s te s ti f

ie d th a t s h e “ p r e tt

y mu c h g o t t

h e idea that [appellant] was not in a happy mood” and sensed that “somethingwas g oing to ha ppen.” T rying to sta y awa y from appellant, she threw him the packa g e. When a ppellant opened t h e p ackag e, Colli ns saw that it contained “dope.” During cross-e x amination, Colli ns said that this “dope” w as
me tha mph e tamin e , w hic h s he c ou ld r e c og nize be c a us e sh e ha d be e n a

us e r o f t he dr ugin t he pa st. Colli ns testified that appe llant, refe rring to the methamphetamine, “ac cused me of stea ling it,” a nd sh e de nie d it

. She added, “ And that’s whe n he g ot pissed off or g ot mad or whatever .”

4 Colli ns testified that she wa s also “a little bit pissed off” beca use appellant ha d had the methamphetamine mailed to her fathe r’s house, a nd that she told appellant that she w as g oing to the police. Aske d if appe llant’s demea nor cha ng ed whe n she told him thi s, Colli ns answer ed, “H e
was a lrea dy

mad as it was. I

don’t think he could have g ot any madder .” Col lin s te sti fi e d th a t w he n s he tr ie d to get ba c k in he r c ar t o le a ve , a

pp e lla nt, sti ll
arme d with the knife a

nd hatche t, blocked her way . Using the knife, a ppellant “star

ted bashingout [C olli n s ’ s ] dr iv e r ’ s w in d o w . ” Co ll in s an s w e r e d a f f ir mati v e ly w h e n a s k e d if s h e w a s a f r a id that appellant would hur

t her. Af t er b re ak i ng the ca

r window, a

ppellant threwthe knife into the c ar.4

Colli ns said that she t hen pull ed her own pocket knife, and appellant backed away from her so that sh e c ou ld g e t in her c ar. As sh e pr e pa re d to dr ive awa

y wi th Ja c ob s, a

pp e lla nt t hr e w t he hatc he t, which “came plowing through [ Colli ns’s] back window” and “hit [t he] console in betwee n” the f ront seats. Collins returned to her fathe r’s house a

nd called the police. When there is a c halleng e to the suffi ci ency of the e vidence to sustain a criminal conviction, the question pre sented is whethe r a r ational trier of fac t could have found t he esse ntial elements of the offe nse beyond a re asonable doubt. Cla y ton v . S tate , 235 S.W .3d 772, 778 (T e x. Cr im. Ap p. 20 07 ). I n a le g a l su ff ic ie nc y re vie w, a ll the e vid e nc e is r e vie we d in the lig ht m os t f a v o r a b l e t o t h e v e r d i c t ; i ti s a s s u m e d t h a tt h e t r i e r

o f f a c tr e s o l v e d c o n f

l i c t s i nt h e t e s t i m o n y, weig hed the e vidence , and dre w re asonable infere nces in a manner that supports the verdic t. Id

. To prove that appellant wa s g uilty of obstruction, the State was require d to show not only that appellant intentionally or knowing ly

eng age d in the alleg ed conduc t, but also that he eng ag ed in this conduct with the s pecif ic i ntent to preve nt or delay Colli ns’s servic e as a

witness or informant. See H

e rre ra v . S

tate , 915 S.W .2d 94, 97 (Tex. App.—San Antonio 1996, no pet.). Ap pe lla nt a rgue s th a t th e re is n o e vid e nc e that he c omm itt e d th e c on du c t a lle g e d in c ount t wo wi th the r e qu i s i t e i n t e n t
. T h e S t a t e r e s p o n d s s i mp l y , “ A f t e r C o l l i n s t o l d A p p e l l an t s h e w a s g oin g to the po lic e and

sta rt e d to le a ve , App e lla

nt atte mpt e d to c ut h e r o ff and dama g e d h e r c ar. Th e State met its burden.”

As is s o o ft e n th e c a se , th e jur y wa s r e qu ir e d to inf

e r a pp e lla nt’ s i nt ent f

ro m hi s conduct a nd the surroundingcirc umstance s . The a ssaultive conduct a lleg ed in count two wa s the
c ulm inatio n o f a

se ri e s of v iol e nt d isa g re e me nts be tw e e n a pp e lla nt a nd Col lin s o n th e a ft e rn oo n in5

question, and the jury

easily could have inferr ed that the c harg ed conduc t was mere ly a fur ther expression of appellant’ s previou s anger . Neve rtheless, whe n Colli ns told appellant that she wa s g oing to the police , he stood betwe en her and her car , smashed the window with his knife , and then threw the hatche t throug h the rear window. The jury could rationally

infer that this conduct under th e s e c ir c u ms ta

n c e s w a s in te n d e d

to f r ig h te nCo ll in s s o a s to d e te r h e r f r o m g o in g to th e p o li c e . We the re fo re c on c lud e tha

t th e e vid e nc e is l e g a lly

su ffi cie nt to s up po rt

a fi nd ingbe y on d a

re a so na ble do ub t th a t appe lla

nt b ra nd ish e d th e hatc he t and

dama g e d Co lli ns ’s c ar s pe c if ic a lly int e nd ingto preve nt or delay

her se rvice as a witness or informa nt. Appellant does not otherw ise question the sufficie ncy

of the e vidence . I ssue two is overr uled. The State’s la st witness at the g ui l t / i n n o ce nce sta g e wa s Copperas Cove Police Offic er Micha el Gonzales. Gonzales testified t hat on the ni g ht of October 17, 2006, he was “looking for a nother subjec t that had ra

n from us ear lier” w hen he spotted a person who f

it the description of this “subject.” He turned the spotlight of his patrol car on this person, who “took off running .” As he ra n, the pe rs on

dr op pe d th e ba c kp a c k h e wa s c arry in g. Gonza le s su c c e e de d in sto pp ingthi s person, who tur

ned out to be appe llant. Gonzales retrie ved the ba ckpac k and opene d it. I t contained (amongother thing s) appe llant’s ident i fi cation, bra ss knuckles, a knife , pepper spray , “numer ous
c on tr oll e d pill s, ” hy

po de rm ic sy

ri ng e s, and

“ thr e e g la ss c oc a ine smo kin g de vic e s” wi th r e sid ue in the m. G on zal e s d e sc ri be d th e pil ls a s p re sc ri pti on dr ug s in bli ste r p a c ks

. The trial c ourt consider ed th e a d mi s s ib il it y of Gonzales’s testimony

outside the jury ’s prese nce. A

ppellant, who re prese nted himself at t ri al, obj ecte d to the rele vance of the prof fer ed testimony . The c ourt ruled that “flig ht is alway s evidenc e of g uilt” and “that’s cer tainly admissible.”The c ourt i n cl u d ed a substantially simil ar instruc tion in it s written cha rg e, limiting the 5 jury ’s consider ation of extraneous offe nse evidenc e to the question of appe llant’s intent or motive. Ap pe lla nt c on c e de s th a t no e rr or

wa s p re se rv e d und e r r

ule 40 3. Te x. R. A

pp . P. 40 3; see 6 Mo ntgom e ry

v . S tate , 810 S.W .2d 372, 388 (Tex. Crim. App. 1991) (op. on re h’g ). 6 Appellant does not c halleng e this ruling. T he State ar g ued that appe llant’s possession of the
we a po ns , c on tr oll e d s ub sta

nc e s, and sy ri ng e s w a s ad mi ss ib le “to sh ow[ap pe lla nt’ s] in te nt t o u se violent force in order to pr otect him and prote ct his drug s from dete ction by law enfor ceme nt.” The State further ar gu ed that appe llant’s possession of the cr ack pipe s and sy ring es re butted the “infe renc e that he’ s tried to establi s h t h ro ug h cross-e x amination of the c omplainant and the other witnesses about the victim’s dr ug use.” The c ourt ruled that testimony reg ardingthe contents of the backpa ck was admissible f or the limit ed purpose of showing appellant’ s intent and motive reg arding the cha rg ed off enses. L ater , during Gonzales’s t estimony , the court instructed the juror s that they
we re to c on sid e r e vid e nc e that a pp e lla nt ha d c omm itt e d of

fe ns e s fo r wh ic h he wa s n ot o n tr ia l on ly if they believed bey ond a reasonable doubt that the evidence was true, and then onl y to determine

a pp e lla nt’ s “ int e nt o r k

no wl e dg e or

pla n” wi th r e g ard

to t he c ha rg e d o ff e ns e s. 5 Appellant conte nds that the trial cour t erre d by

permitting Go nzales to testify reg ardingthe contents of t he backpac k. He urg es t hat the testimony constituted evidenc e of othe r crimes or bad acts that had no rele vance to the offe nses for which he wa s on trial. See Tex. R. Evi d. 404(b). E v i d ence of other crimes or

wrong s is not admissi ble mere ly as a c ircumstance of the defe ndant’s ar

rest. Cou re t v . S

tate , 792 S.W
. 2 d 1 0 6 , 1 0 7 (Tex. Crim. App. 1990). I nstead, the evidenc e must be rele vant to a materia l issue in the case and its proba tive value must outweig h the dang er of unfair pr ejudice. Id

. 67 I n its brief, the St at e asser ts without further explanation, that the evidenc e of appellant’ s possession of wea pons, drug s, and drug para pherna lia at the time of his a rre st: (1) was “dire ctly rele vant to Appellant’s inte n t t o p re vent and de lay Colli ns from informing and being a witness to his drug activities,” (2) “demonstrate[d] Appellant’s intent t o t h re at en Collins,” and (3 ) w a s “ re le va

nt t o App e lla

nt’ s u se of

the kn if e and hatc he t a s d e a dly we a

po ns .” I t is no t f

a c ia lly appar ent, howeve r, how a ppellant’s possession of bra ss knuckles, drugpara p h ernalia, and presc ription d ru g s (which we re not shown to have been unla wfully possessed) on O ctober

17
was re levant to show that on September 29 appellant used or intended to use the knife a nd hatche t in a manner

capa ble of c ausing death or

serious bodily

injury

. See Tex. P enal C o d e Ann. § 1.07(a) (17)( B) (West Supp. 2007). We a lso do not see how the conte nts of appellant’ s backpa ck at the time of his ar

rest shed a

ny light on appe llant’s intentions when he a ssaul t ed C ollins t hree
wee ks ear lier. We note that the State doe s not cite this evidenc e in its response to appe llant’s challeng e to the suff

iciency of the e vidence . Under t h e circ umstances shown by this recor d, the ch al l en g ed evide nce ha d no rele vance to the offe nses for which appe llant was on trial and se rved only to prove a

ppellant’s bad c hara cter . The c ourt err ed by admitting the e vidence over a ppellant’s timely objection. Havingfound er

ror in the a dmission of thi s evidenc e, we must ex amine the r ecor d to deter mine if the er

ror a ffe cted a

substantial rig ht. See Te x. R. Ap p. P. 44 .2 (b ). We c on sid e r o nly whether the er ror c ontributed to appellant’s c onvicti ons beca use it was prope r to consider the extraneous m is c o n d

u c t e v id e n c e in

d e te r miningappellant’ s punishments. See Tex. Code Crim. P roc. Ann. ar t. 37.07, § 3(a)( 1) (West Supp. 2007).8 Duringthe State’s cr oss-examination of M al i sa Casiano, a ppellant’s fia

ncee and th e o n l y defe nse witness at the guilt st ag e, the pr osecutor w as per mitted to ask the witness over objection if she kne w why appellant had “coc aine smoki ng pipes” and sy ring es in his backpa ck whe n he wa s arr es ted. Casiano said that a ppellant did not use drug s, and she did not know why he had the pipes. She said that appe llant used the sy ring es to ref

ill printer ink c artridg es. The prose cutor also broug ht up appellant’s a rre st dur ing jur

y argument. After

reminding the jurors of G onzales’s te sti mony , h e tol d th e m th a t th e c ourt “ ha s in str uc te d you that of fe ns e s . . . that are n’ t c ha

rg e d in th is indictment—what we’ re ta lking a bout is the arrest i n Copperas Cove—can only be used to g o to the intent and mo t i v e o f M r. Maher .” He went on, “[H]e’s g ot knuckles, peppe r spra y , a big knife, sy ri ng e s, dr ugpip e s. He ’s g ot a ll o f t hat a ll t og e the r. I t sh ow s h is in te nt t o u se vio le nt f or c e to protec t his drug activities. That’s what he was doingwhen he assaulted Ms. Collins. That’s what he wa s doing w hen he tr ied to stop Ms. Col lins from leavingthat day .”

We conclude t h at the er

roneous a dmission of the ex trane ous misconduct evidenc e
wa s h arm le ss w ith re sp e c t to a pp e lla nt’ s convic tio n for a g g ra

vate d a ssa

ult . T he pr inc ipa l is su e in the assault prose cution was not appe llant’s motive or intent, b u t wh ether he did in fac t threate n Colli ns wi t h t h e h at chet in the manne r alleg ed. B oth Coll ins and J acobs te stified that appellant brandished the hatche t and then thre w it, sma shing the rea r window of Collins’s car and ca using the hatc he t to land

be tw e e n th e m. C oll ins ’s fathe r a lso te sti fi e d to the dama g e do ne to t he c ar. Tr

uitt, who owned the trailer, testified that appellant told him that he had “tried to stop [ Colli ns],” that he “[h] ad a ha

tchet in his hand,” a

nd that “he mig ht have hit t he window with the hatchet.” I n light of the consider able e vidence that appellant threatened Collins with the hatchet and use d the hatche t as
a deadly wea

pon, we c onclude that the e rrone ous admission of the extraneous misconduct evide nce9

did not contribute to his c onviction for ag g ravated assault. Se e Mo til la v . S tate , 78 S.W .3d 352, 358 (Tex. Crim. App. 2002) (evidenc e of de fenda nt’s g uilt is fac tor to consider in ha rm ana ly sis). We rea ch a dif

fer ent conc lusion with respect to app e ll a nt’ s c o nv ic ti o n

f o r o b s tr u ction. The critica l issue in this prosec ution wa s whether appellant assaulted Colli ns for the p u rp o s e of preve nting or

delay ing he r g oing to the police . The trial c ourt twice instructed the juror s that they
c ou ld c on sid e r e xtra

ne ou s misc on du c t evi de nc e to de te rm ine a pp e lla nt’ s mo tiv e and

int e nt. I n h is argument, the prosec utor reminded the jurors of this instruction and explicitl y asser ted that the contents of a

ppellant’s bac kpack a

t the time of his arre st proved that appellant ha d intended to stop Colli ns from going to the police whe n he assa ulted her. G iven the close ness of the intent que stion,
we c onclude that the e rrone ously admitted evidenc e wa s likely to have influe nced t he jury ’s de te rm inatio n o f t

he iss ue . Th e e rr or thu s af fe c te d ap pe lla

nt’ s su bs tanti a l r ig ht t o b e c on vic te d o nly on the basis of a dmissibl e evide nce.

The district cour

t prepa red a n d fi l ed two judgme nts. W e af firm the judg ment of conviction on count one for ag g ravated assault. We r ever se the judgme nt of conviction on count two fo r o bs tr uc tio n a nd re mand the c a us e to t he tr ia l c ourt

fo r f ur the r p ro c e e din g s.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson Affir med in part; Rever sed and Rema nded in par

t Filed: Jul y

10, 2008 Do No t Pu

bli sh