# Tate v. State

> Court of Criminal Appeals of Texas · December 9, 1998 · 981 S.W.2d 189

URL: https://www.frixlaw.com/law-library/cases/9678772

## Case

- **Full name:** Christopher Michael TATE, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 9, 1998
- **Citations:** 981 S.W.2d 189; 1998 Tex. Crim. App. LEXIS 168; 1998 WL 846882
- **Precedential status:** Published
- **Opinion:** Concurrence by Keller
- **Judges:** Mansfield, Baird, Overstreet, Price, Holland, Womack, Meyers, Keller, McCormick
- **Cited by:** 114 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678772

## How later opinions describe it (automated extraction)

- holding that evidence of a threat made by a decedent a month or two before his death was admissible under rule 404(b), when offered by the defendant who was charged with murder and asserted self-defense, because the threat was probative of the decedent’s state of mind to possi…
- holding that evidence of threat made by decedent one or two months before his death was admissible when offered by defendant who was charged with murder and asserted self-defense, because threat was probative of decedent’s state of mind to possibly harm defendant on date of of…
- holding that evidence of a threat made by a decedent a month or two before his death was admissible under rule 404(b
- concluding that a jury could not “properly convict or acquit absent the opportunity to hear proffered testimony bearing upon a theory of defense and weigh its credibility along with other evidence in the case.”
- holding in self-defense case that victim’s prior threat on life of defendant, even though made two months prior to victim's death, is probative of defendant's reasonable apprehension and victim's aggression

## Opinion text

KELLER, Judge,
concurring.
Appellant offered testimony that some months before this murder the victim, Rack-ley, had said to appellant’s aunt that the animosity between Rackley’s daughter and appellant was going to cause Rackley to have to kill appellant some day. The trial court sustained the State’s objection to the aunt’s testimony and said he did so “because it would be hearsay.” Defense counsel said that it was not hearsay because it was within the witness’s personal knowledge, and he argued that the statement was admissible because it would show Rackley’s intent in going to appellant’s residence. The prosecutor’s only response was that the episode was too remote from the date of the murder, and it was therefore irrelevant.
The Court of Appeals understood the offer “for intent” to be an offer to show that the victim was the aggressor. I do not think that is what appellant had in mind when he offered the evidence. It appears to me that since the offer for “intent” was made in response to the court’s declaration that the evidence was hearsay, the offer was an attempt to get the evidence in as a hearsay exception. The hearsay exception that concerns intent is R. 803(3) of the Rules of Criminal Evidence, which provides for the admission of a statement of the declarant’s then existing state of mind.
After appellant claimed that the evidence was admissible to show intent, the State responded that it was too remote. The prosecutor was either saying that the statement, even if it showed Raekley’s intent at the time it was made, was too remote to show his intent at the time of the killing or he was saying that it was so remote that its prejudicial value outweighed its probative value. I think he was saying the former, i.e., Rack-ley’s statement some two months before the killing that he would have to kill appellant was not relevant to what happened on the date of the murder.
Despite the fact that Rackley’s statement was more boastful than threatening, and despite the fact that it was made two months before the killing, I think it was admissible as an exception to the hearsay rule. The jury could account for those matters in deciding how much weight to give the evidence. Unless it is pure hyperbole, a statement that expresses an intent to kill should be admissible under R.803(3).
I agree that the case should be remanded to the Court of Appeals to perform a harm analysis.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678772. Public record. Not legal advice.