# Burks v. State

> Court of Criminal Appeals of Texas · March 9, 1994 · 876 S.W.2d 877

URL: https://www.frixlaw.com/law-library/cases/9776647

## Case

- **Full name:** John Albert BURKS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 9, 1994
- **Citations:** 876 S.W.2d 877; 1994 Tex. Crim. App. LEXIS 31; 1994 WL 68881
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** White, Clinton, Maloney, Miller, McCormick, Baird
- **Cited by:** 394 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/9776647

## How later opinions describe it (automated extraction)

- holding that testimony that the appellant solicited help in a robbery a month prior to the charged offense of murder in the course of robbery was admissible as proof of the appellant's plans and preparations, as well as proof of actions within the same transaction as the charg…
- holding that for “any potential claim of jeopardy which appellant might have to assert in a future prosecution, the proper time to argue this issue is after he has been charged or indicted for that unnamed future offense”
- holding that appellant's threats to his aunt, when she said that she would call the police if she found out that appellant was involved in the offense, was evidence that tended to connect the appellant to the offense
- stating that to avoid forfeiture of appellate complaint a party must let trial court know what he wants, why he is entitled to it, and to do so in a clear enough manner to allow trial court to do something about it
- holding Article 37.071 authorized the trial court to admit any evidence relevant to a defendant’s deathworthiness, including evidence of any extraneous transactions where the prosecution “clearly proved” the offense was committed and the defendant was the perpetrator

## Opinion text

CLINTON, Judge,
dissenting.
I join Judge Maloney’s dissenting opinion in this cause. I write additionally to address the Court’s treatment of appellant’s seventeenth point of error, that the trial court erred to admit testimony from Ike Weeks that fully a month before the instant offense appellant solicited him to participate in an unspecified robbery. The majority holds that this evidence is admissible, Tex.R.Cr. Evid., Rule 404(b) notwithstanding, because it shows a “plan” to rob Jesse’s Tortilla Factory, and because it is “same transaction contextual evidence.” The majority parades these words as if their meanings, and application in the context of this case, were self-evident. One suspects that, forced to articulate how Weeks’ testimony shows “plan” as that word is properly understood in context of Rule 404(b), or how exactly it can be construed to be part of the “same transaction” or “context” as the offense here, the majority would be, ironically, at a loss for words.
Under Rule 404(b), supra, evidence of “other crimes, wrongs, or acts” is not admissible simply “to show that [a person] acted in conformity therewith.” To the extent it may be relevant to show “plan,” not just propensity, evidence of other crimes, wrongs, or acts may be admissible. The existence of a plan may constitute an evidentiary fact from which an elemental fact, such as identity or intent, may be inferred. Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion). But as the late Judge W.C. Davis observed in his plurality opinion in Boutwell v. State, 719 S.W.2d 164, at 181 (Tex.Cr.App.1986) (Opinion on State’s motion for rehearing), before extraneous misconduct is relevant to show “plan,” there must be evidence that both the extraneous misconduct and the charged offense “are steps toward the accom *912 plishment of the plan.” A robbery, real or inchoate, in late December, is not admissible in the prosecution of a robbery/murder in late January, at least under the guise of “plan,” unless there is some basis in the evidence to believe that both robberies were part of an overarching “plan,” such that it can be said that the planner committed both. Otherwise, proof of the earlier robbery serves no probative function but to show that the perpetrator is a robber in general, and therefore more likely committed the later robbery — an inference Rule 404(b) forbids. See Boutwell v. State, supra, at 180-81. There is absolutely no evidence of an overarching “plan” in this cause.
“Plan” aside, evidence that appellant solicited help specifically to rob Jesse’s Tortilla Factory in late December would constitute some evidence that he took part in the robbery of that establishment in late January. It would thus be some evidence, however tenuous, of identity, and would not be per se inadmissible under Rule 404(b). It might not be highly probative evidence relative to its potential for prejudice; but it would be relevant apart from its character conformity value, and I do not understand Tex.R.Cr.Evid., Rule 403, to be at issue here. Indeed, this is the reason I agree with the majority that appellant’s eighteenth point of error is merit-less. Evidence that appellant was overheard the day before the offense engaged in conversation that could rationally be construed as planning the logistics of that offense certainly tends to make more likely his identity as one of the perpetrators. But appellant was not overheard in late December to solicit someone specifically to rob Jesse’s Tortilla Factory. That appellant solicited someone to commit an unspecified (or, as he now calls it, a “generic”) robbery one month before does not tend to make more likely that he robbed Jesse’s Tortilla Factory, except to the extent that one who commits robberies in general is more likely to have committed a particular robbery. The rulemakers have deemed the probativeness of that kind of evidence to be substantially outweighed by the danger of unfair prejudice, as a matter of law, under Rule 404(b). Montgomery v. State, supra, at 387.
Testimony that appellant solicited another to help him to commit an unspecified robbery a month earlier cannot rationally be considered “same transaction contextual evidence” either. It certainly cannot be said that the charged offense “makes little or no sense” absent this testimony. Rogers v. State, 853 S.W.2d 29, at 33 (Tex.Cr.App.1993). The testimony was not, therefore, “necessary.” Id. That the Court has recently held extraneous misconduct admissible as “same transaction context evidence” despite its failing to meet the “necessity” test of Rogers is bad enough. Lockhart v. State, 847 S.W.2d 568, at 575-76 (Tex.Cr.App.1992) (Clinton, J., dissenting); Camacho v. State, 864 S.W.2d 524, at 537-38 (Tex.Cr.App.1993) (Clinton, J., dissenting). Here the solicitation of Weeks was not even remotely contemporaneous with the charged offense, and did not reference Jesse’s Tortilla Factory at all. It cannot reasonably be said to have occurred during the “same transaction,” or in “context” of, the charged offense, even understanding those words in their common acceptation. * Apart from its misbegotten conclusion that *913 appellant’s solicitation of Weeks was all part of one “plan,” the majority does not attempt to explain how it was part of the “same transaction or context.” It seems that these words, “plan” and “same transaction context evidence,” have become even more of a talisman for the admission of objectionable evidence than that old incantation, “res gestae,” ever was!
To the continued substitution of empty words for clear thinking and cogent analysis, I dissent.
MALONEY, Judge,
dissenting.
I respectfully dissent to the majority’s disposition of appellant’s twenty-second point of error. In his twenty-second point of error, appellant contends the trial court erred by excluding Regina Burks’ testimony that Bishop McConnell III admitted killing the deceased. Outside the jury’s presence, Regina testified that three or four hours after the offense, she overheard Bishop repeatedly state to two men whom she did not know that Bishop had shot Jesse Contreras. She further testified that Bishop was very intoxicated and “[njobody ever pays attention to him when he’s drunk.” The trial court sustained the State’s objection that Regina’s testimony was hearsay which did not meet the requirements of the statement against penal interest exception to the hearsay rule.
Statements against penal interest are admissible under rule 803(24) of the Texas Rules of Criminal Evidence only if “corroborating circumstances clearly indicate the trustworthiness of the statement.” Tex. R.CRIM.Evid. 803(24). With respect to the determination of a statement against penal interest’s trustworthiness, we recently wrote:
Any number of factors may be considered in this inquiry, including whether the guilt of the declarant is inconsistent with the guilt of the accused, whether the declarant was so situated that he might have committed the crime, the timing of the declaration and its spontaneity, the relationship between the declarant and the party to whom the declaration was made, and the existence of independent corroborating facts. Further, evidence which undermines the reliability of the statement as well as evidence corroborating its trustworthiness may be considered, so long as the court is careful not to engage in a weighing of the credibility of the in-court witness.
Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App.1994). Considering these factors, Regina’s testimony was admissible, as the majority correctly holds, albeit for slightly different reasons. Maj. Op. at 904-905.
Having determined that Regina’s testimony was admissible, the question is whether the error of exclusion contributed to appellant’s conviction or punishment. Harris v. State, 790 S.W.2d 568, 585-88 (Tex.Crim.App.1989); Tex.R.App.P. 81(b)(2). In Hands, this Court recognized that harmfulness of error is not determined by the existence of overwhelming evidence, although it can be a factor:
[I]n making the [harmless error] analysis the predominant concern must be the error. If the court rules that an error is harmless it is in essence asserting that the nature of the error is such that it could not have affected the jury, so the jury must have relied on overwhelming evidence of guilt in the first place. If overwhelming evidence dissipates the error’s effect upon the jury’s function in determining the facts so that it did not contribute to the verdict then the error is harmless. Otherwise, it is not.
Id. at 587 . As the majority correctly writes, “[t]he question, then, is ‘whether a rational trier of fact might have reached a different result if the error and its effects had not resulted.’” Maj. Op. at 905-906 (quoting Harris, 790 S.W.2d at 588 ).
*914 The record reflects that one hour before the offense and a few blocks away from the crime scene, Bishop was in the same car Victor Macias saw at the crime scene. Macias never identified appellant as the man he saw running from the crime scene. The Waco Police did not obtain fingerprints from the crime scene. Arguably, Bishop could have been the person Macias saw running from the crime scene. Bishop owned a gun similar, if not identical, to the murder weapon. A gun was not recovered from appellant and the accomplice-witness (whose capital murder charges were dismissed for his testimony) testified that he never saw appellant with a gun on the day of the offense. And, despite the threats to his aunt, appellant did not admit committing the offense to her or anyone else.
Regina’s testimony was not inconsistent with the State’s evidence against appellant. Given the weakness of the State’s evidence, Regina’s testimony that shortly after this offense occurred, Bishop repeatedly admitted to committing it, if believed, could have created in the jury’s minds a reasonable doubt as to whether appellant shot Contreras. Therefore, I cannot conclude beyond a reasonable doubt that the trial court’s error in excluding Regina’s testimony did not contribute to appellant’s conviction or subsequent death sentence. Tex.R.App.P. 81(b)(2). I would reverse the judgment of the trial court and remand this cause to that court for a new trial. Because the majority does not, I respectfully dissent.
BAIRD, J., joins.
The Court cites Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986), for the proposition that "same transaction context” evidence is admissible because “events do not occur in a vacuum." Mann was tried before the advent of the new rules, so it is inapplicable to the extent it may conflict with, e.g., Rogers v. State, supra. In any event, it is simply fatuous to maintain that a solicitation to commit an unspecified robbery in late December fills any "vacuum” left in the wake of a specific robbery/murder actually committed in late January. Again the majority invokes words, but fails to justify their application to the instant cause. In Mann , the defendant and an accomplice burst into a home where two men and a woman were watching television. The men were bound, and the woman was taken to a bedroom, where she was raped and killed. The two men were then taken out to a secluded area, shot, and left for dead. Mann was prosecuted for capital murder of one of the men. On appeal he contended that the trial court erred to allow proof of the rape and murder of the woman. This Court held this evidence admissible because it was "necessary to a full picture and understanding of what took place.” 718 S.W.2d at 744 . The killings were, if not contemporaneous, at least part of an uninterrupted chain of events. Here the evidence establishes no link at *913 all between appellant’s solicitation of Weeks in late December and the robbery of Jesse’s Tortilla Factory in late January. Mann is no authority for the Court’s holding today.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776647. Public record. Not legal advice.