# Foster v. State

> Court of Criminal Appeals of Texas · June 28, 1989 · 779 S.W.2d 845

URL: https://www.frixlaw.com/law-library/cases/9681131

## Case

- **Full name:** Richard Donald FOSTER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 28, 1989
- **Citations:** 779 S.W.2d 845; 1989 Tex. Crim. App. LEXIS 152; 1989 WL 69707
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** White, Clinton, Miller, Duncan, Berchelmann
- **Cited by:** 212 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/9681131

## How later opinions describe it (automated extraction)

- holding that declarant’s gesture “was not a substitute for verbal expression where a declarant is asked a specific question and responds assertively to that question in a non-verbal manner”
- observing that, “[a]fter voir dire, the trial court would have had the benefit of jury selection to help gauge the community attitudes and opinions toward appellant”
- explaining that nonverbal conduct is considered hearsay when it is an assertive substitute for verbal expression
- holding weapon that was used or allegedly used during the commission of an offense was admissible

## Opinion text

CLINTON, Judge,
dissenting.
When it turns to appellant’s fifth, sixth and seventh points of error, regarding admissibility of extraneous transactions, the majority conveniently deletes the first part of the two part test: whether evidence of extraneous transactions is relevant to a material issue in the case. Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983); Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985). The material issues in any given case are those framed by the State’s indictment on which the State has the burden of proof. Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980); (Clinton. J., concurring). “Flight” is not a talisman, any more than so-called “res gestae of the arrest.” See Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App.1985) (Clinton, J., concurring). Evidence of flight must somehow relate to a material issue. Cf. Morgan v. State, supra at 882, n. 7. The majority does not begin to establish a rational connection between the extraneous events and any material issue at trial. Instead the majority simply characterizes appellant’s conduct as “flight,” or a “necessarily related circumstance” of flight, a dubious proposition, and straightaway opines it is admissible.
That appellant desired to exchange his getaway car on April 28, three and a half weeks after the instant offense was com *865 mitted, hardly shows a fear of imminent apprehension, at least absent evidence he believed he was being pursued at that time for the April 5 offense. It may be that the bare fact of appellant’s possession of the getaway car, even three and a half weeks later, may have some incremental probative value toward establishing appellant’s identity as the killer on April 5. But it certainly was not necessary to prove the possession of a pistol to further whatever legitimate inference may be gleaned from this exchange. That eleven days later, on May 10, appellant shot another man and took his car would seem to reflect more an attitude of imperviousness to the law than fear of lawful pursuit. Just because a suspect is at-large and committing further crimes does not necessarily show he is fleeing. “[F]light should show some act or instance of running away.... There must be some circumstance to show the accused is moving out or running.” Jones v. State, 481 S.W.2d 900, at 902 (Tex.Cr.App.1972). See also Riles v. State, 557 S.W.2d 95 (Tex.Cr.App.1977). Only by linking them to statements made during yet another offense, the taking of hostages in a Breckenridge bank, does the State even tentatively identify the acts of May 10 as “flight” from an offense committed well over a month before in nearby Parker County. I am not satisfied the State has demonstrated the relevance of these extraneous transactions. “Flight should not be used merely as a vehicle to show proof of independent crimes when it tends to shed no light on any disputed issue in the case.” Woods v. State, 480 S.W.2d 664, at 668 (Tex.Cr.App.1972) (Onion, P.J., dissenting).
Ironically, the majority fails properly to implement that part of the test it does recognize: whether evidence of the extraneous transactions was more probative than prejudicial. Williams v. State, supra. Assuming arguendo that the evidence of appellant’s extraneous offenses did conduce to establish “flight,” the State had no compelling need to prove flight in this cause in order to obtain a conviction. As the majority’s own recitation of the evidence shows, Op. at 863, the State’s presentation was more than sufficient to establish every element of its case without recourse to a demonstration, however dubious, of a consciousness of guilt. By my understanding of the law, see Morgan v. State, supra, at 879-80, nn. 2 & 3, the extraneous offenses admitted here were therefore far more prejudicial than probative. The trial court erred to admit them, and we cannot say beyond a reasonable doubt these errors did not contribute to appellant’s conviction in this cause. Tex.R.App.Pro., Rule 81(b)(2).
With respect to appellant’s point of error eighteen, I agree the record supports the trial court in granting the State’s challenge for cause against venireman Boling, but disagree with the majority’s characterization of him as a “vacillating” venireman. See Perillo v. State, 758 S.W.2d 567, 576, n. 10 (Tex.Cr.App.1988). In my view Bol-ing’s position was consistent throughout; he never “changed his mind.” Op. at p. 851. He never denied being able to answer the second special issue. He did make clear, however, that his moral aversion to the death penalty might cause him to hold the State to what amounts to an impossible burden of proof. This, in combination with his earlier uncertainty whether he could set aside his opposition to the death penalty and honestly answer the questions, provides adequate support for the trial court’s action in granting the state’s challenge for cause. But I fail to perceive how Boling “wavered.” Op. at 851. Moreover, the majority places undue weight on Boling’s own affirmation that he would likely be “substantially impaired.” That is a bit like allowing the patient to diagnose his own ailment. In context of our capital scheme this phrase has acquired a particularized meaning, see Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988). Whether a venireman is in fact “substantially impaired” is an issue for the trial court to decide.
To the extent it suggests our review of sufficiency of evidence is contingent upon finding challenged portions of that evidence to have been properly admitted, Op. at 855, the majority misleads. See Osban *866 v. State, 726 S.W.2d 107, at 111-12 (Tex.Cr.App.1986), and cases cited there.
For these and other reasons I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681131. Public record. Not legal advice.