McIntare v. State

SAVANNA MCINTARE APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-18-00145-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

June 14, 2018

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR12692

MEMORANDUM OPINION¹

Appellant Savanna McIntare appeals her conviction for murder. In two points, she argues that the trial court erred by (1) excluding the testimony of two police officers concerning statements her daughter made to a forensic interviewer and (2) allowing the jury to separate during deliberations. We affirm the trial court's judgment.

Summary of the Evidence

Because Appellant does not contest the sufficiency of the evidence to support her conviction, we will summarize the evidence to the extent necessary to contextualize her points.

The record shows that Appellant shot the victim—her husband, Don McIntare—twelve times at close range with three different pistols. Appellant testified at guilt-innocence. She admitted that she shot and killed Don. After killing Don, Appellant washed up; changed clothes; drove to the bank, a travel agent, and the airport; and flew to Vietnam. She was arrested upon her return to DFW Airport several days later.

Appellant testified that a few days before the shooting, her adult daughter, JP, told Appellant that Don had been sexually assaulting her for several years. Appellant testified that immediately before the shooting, she confronted Don with JP's allegation. She testified that a scuffle ensued, during which she shot and killed Don. JP did not testify at trial.²

During the guilt-innocence phase of trial, Appellant offered the testimony of two law enforcement officers—investigator T.D. Elam and Texas Ranger Michael Stoner—concerning statements the officers overheard JP make to a forensic interviewer at the Child Advocacy Center (CAC) about having been sexually assaulted by Don. Appellant made an offer of proof outside the presence of the jury. The State objected to testimony regarding JP's out-of-court statements on hearsay and relevance grounds, and the trial court granted the objection on both grounds. The exclusion of this testimony forms the basis of Appellant's first point, and we will examine the proffered testimony in more detail when we analyze that point.

Appellant requested and received a jury instruction on self-defense. The jury returned a verdict of "guilty" and, after hearing punishment-phase evidence, assessed punishment at twenty years' confinement. The trial court rendered judgment accordingly, and this appeal followed.

Discussion

1. Exclusion of Elam's and Stoner's Testimony

In her first point, Appellant argues that the exclusion of Elam's and Stoner's testimony about JP's statement to CAC prevented Appellant from presenting her self-defense theory. The State argues that the trial court properly excluded the evidence because it was not relevant, it was hearsay, and it was inadmissible under Rule of Evidence 403.

We review a trial court's rulings on evidentiary objections for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial court does not abuse its discretion unless its ruling is arbitrary and unreasonable; the mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref'd) (mem. op.). If the trial court's "evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

Only relevant evidence is admissible. Tex. R. Evid. 402. Evidence is relevant when it makes a fact of consequence more or less probable than it would be without the evidence. Tex. R. Evid. 401.

a. Appellant's Self-Defense Theory

Appellant first argues that the excluded testimony was relevant to her self-defense theory. Appellant contends that if the jury believed that JP told Appellant that Don had been molesting JP, the jurors could "understand that [Appellant] acted reasonably in perceiving Don's attack as a genuine risk of death or serious bodily injury." Appellant argues that the excluded testimony—that JP also told a third party that Don had molested her—makes it more probable that she told Appellant the same thing, thus bolstering Appellant's testimony.

To analyze Appellant's relevancy argument, we first review the applicable Penal Code sections on self-defense. A person is justified in using force against another "when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31 (a) (West 2011). A person is justified in using deadly force against another if the actor would be justified in using force against the other under § 9.31 and "when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other's use or attempted use of unlawful deadly force." Id. § 9.32(a)(2)(A) (West 2011). Thus, Appellant's relevance argument turns on whether the proffered testimony makes it more probable that she reasonably believed that deadly force was immediately necessary to protect herself against Don's attempted use of unlawful deadly force. See id.

b. The Excluded Evidence

With the applicable Penal Code sections in mind, we next examine Appellant's proffered evidence. Outside the presence of the jury, Appellant elicited the following testimony from Stoner during the State's case in chief:

[Counsel] Following your conversation with [Appellant], you referred her daughter, [JP,] to have a forensic interview, is that right?

[Stoner] I did not do that.

[Counsel] Who did that?

[Stoner] I believe Detective Elam.

[Counsel] Detective Elam?

[Stoner] I'm not sure. I know I didn't make that contact.

. . . .

[Counsel] What action did you take once [Appellant] told you that her daughter was sexually abused?

[Stoner] We -- that happened during an interview, and she requested an attorney, so we didn't go any further with that.

[Counsel] I understand. But you were made aware that a young girl was sexually abused. I'm asking, what did you do about it?

[Stoner] Nothing further with that. She had already been interviewed.

[Counsel] By who?

[Stoner] By [CAC].

[Counsel] Okay. And was that a part of this investigation?

[Stoner] Yes.

[Counsel] So between the 21st and the 25th, she had been interviewed by [CAC], is that what you're saying?

[Stoner] Yes, sir.

[Counsel] Let's see. And based on that interview, in the contents of that interview, did that shape your investigation in any way?

[Stoner] On whose interview?

[Counsel] The [CAC] interview. . . .

[Stoner] We were working a homicide investigation at the time. The -- we followed through with the - [CAC] interview, because that was the natural transition to this investigation.

. . . .

[Counsel] Have you determined if there may be any other motive during your investigation, besides that Don was molesting [Appellant's] daughter?

[Stoner] We were investigating several motives, financial motives, infidelity, any -- any motive available, we were looking into.

[Counsel] Okay. And -- and based on your investigation, did you arrive at one being the most likely?

[Stoner] Yes, sir.

[Counsel] What's that?

[Stoner] That would be the sexual assault.

[Counsel] And that would be part of the reason that your investigation continued to focus on [Appellant] and it continued to go forward as a murder as opposed to something else?

[Stoner] Yes, sir.

Later, during Appellant's presentation of evidence, she elicited the following testimony from Elam outside the presence of the jury:

[Counsel] Investigator Elam, did you see a forensic interview of the defendant's daughter?

[Elam] Yes, I did.

[Counsel] And what was the subject of the forensic interview?

[Elam] It's just a normal procedure, when there's allegations made, to be interviewed at CAC.

[Counsel] Right. But what was discussed during the interview?

[Elam] Her home life in generalities and -- and if there was a problem between Don McIntare, Sr. and her.

[Counsel] You've been in the room the whole time I've been talking, right?

[Elam] Yes.

[Counsel] Okay. They discussed Don McIntare sexually molesting his stepdaughter, [JP], right?

[Elam] Yes.

[Counsel] Okay. And you -- you were present when [JP] made those statements.

[Elam] Yes.

[Counsel] And whether they're true or not, you know that [JP] at least said that to the forensic interviewer, and Ranger Stoner was present when she said it and you were present.

[Elam] Yes, that's correct.

[Counsel] So the fact that she was making those statements, you're -- you have personal knowledge that she was making those statements.

[Elam] Yes.

[Counsel] Okay. Whether they're true or not.

[Elam] Correct.

In summary, Stoner would have testified that CAC interviewed JP and that Don's sexual assault of JP was, in Stoner's opinion, the most likely motive for Don's murder. Elam would have testified that he overheard a discussion between JP and CAC about Don's sexually abusing JP.³

c. Appellant's State-of-mind Argument

Appellant argues that JP's statements to CAC were relevant to her state of mind when she shot Don. Appellant contends the jury "could have found [her] perception that Don was a threat more credible because the jury believed [she] was told that Don sexually abused [JP]." Appellant's argument comprises two inferential steps: (1) JP's statement to CAC makes it more probable that JP also told Appellant about the abuse and (2) if Appellant reasonably believed that Don molested JP, then she reasonably believed that Don was using unlawful force against her at the time of the shooting.

The problem with Appellant's argument is the second inferential step. Nothing in the admitted evidence or excluded testimony suggests a connection between Don's alleged sexual...