Blake Washington v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00153-CR

BLAKE WASHINGTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 331st District Court
Travis County, Texas
Trial Court No. D-1-DC-21-300845, Honorable Chantal Eldridge, Presiding

April 25, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

In an alley off Austin’s Sixth Street during the evening of May 2, 2021, Appellant,

a homeless man, shot Christopher Bowser in the back of the head with a .25 caliber

handgun.1 Bowser died the next day. The shooting was recorded on video by the City

1 Appellant does not challenge the sufficiency of the evidence supporting the jury’s verdict.
of Austin’s High Activity Location Observation (HALO) cameras, which police used to

locate Appellant. Appellant was taken into custody and detained.

At trial, a jury acquitted Appellant of murder but convicted him of the lesser-

included offense of manslaughter. Appellant was sentenced to fifteen years of

confinement.2 On appeal,3 Appellant asserts (1) his sentence is disproportionate to the

crime with which he was convicted, and (2) the trial court erred by excluding evidence of

violent acts committed by Bowser against John Wright and others that Appellant contends

is relevant to self-defense. For the reasons discussed below, we affirm.

Analysis

Issue One: Length of Sentence

The Eighth Amendment to the United States Constitution provides that “[e]xcessive

bail shall not be required, no excessive fines imposed, nor cruel and unusual punishment

inflicted.” U.S. CONST. AMEND. VIII; see Robinson v. California, 370 U.S. 660, 675, 82 S.

Ct. 1417, 8 L. Ed. 2d 758 (1962); Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim.

App. 2010). Appellant’s sentence of fifteen years is within the statutory range for

manslaughter, a second-degree felony.4

2 See TEX. PENAL CODE ANN. § 19.04(a), (b) (a second-degree felony). A second-degree felony is

punishable by a term of imprisonment of not more than 20 years or less than 2 years and a fine not to
exceed $10,000. TEX. PENAL CODE ANN. § 12.33.
3 This appeal was originally filed in the Third Court of Appeals and was transferred to this Court by

a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T. CODE ANN. § 73.001. In the
event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
4 See TEX. PENAL CODE ANN. § 19.04(a), (b). A second-degree felony is punishable by a term of
imprisonment of not more than 20 years or less than 2 years and a fine not to exceed $10,000. TEX. PENAL
CODE ANN. § 12.33.

2
To preserve a complaint that a sentence is unconstitutionally disproportionate to

the committed offense, the appellant must make a timely, specific objection to the trial

court. The Third Court of Appeals, whose authority we must follow as a transferee court,5

described the requirement as follows:

A sentencing issue may be preserved by objecting at the punishment
hearing, or when the sentence is pronounced. A defendant may raise a
sentencing issue in a motion for new trial for the first time only if the
defendant did not have the opportunity to object in the punishment hearing.
Failure to complain about an allegedly disproportionate sentence in the trial
court forfeits the error on appeal.

Here, [appellant] failed to present any complaint about his sentence—that
his sentence was disproportionate to the seriousness of his offense or
violative of the United States or Texas Constitutions—to the district court
during the punishment hearing. [Appellant] does not contend, and the
record does not indicate, that he lacked the opportunity to raise such
objections to his sentence when it was pronounced during the punishment
hearing. Thus, we conclude that [appellant] failed to preserve his first and
second issues for our review.

Rumsey v. State, No. 03-21-00211-CR, 2022 Tex. App. LEXIS 5945, at *3–4 (Tex. App.—

Austin 2022, pet. ref’d) (cleaned up; bracketed material added).

As was the case in Rumsey, the Appellant here also failed to present any complaint

about the disproportionality of his offense during the punishment hearing or

pronouncement of sentence. He was given an opportunity to raise any objections after

the trial court pronounced his sentence. The trial court asked the attorneys whether they

had anything further; both sides answered, “No, Your Honor.” Accordingly, we conclude

that this issue was not preserved for our review. Id.; Shaw v. State, No. 03-19-00435-

5 See Mitschke v. Borromeo, 645 S.W.3d 251, 258 (Tex. 2022) (“Transferee courts must follow

whatever law binds the transferor court . . .”).

3
CR, 2020 Tex. App. LEXIS 6402, at *3–4 (Tex. App.—Austin Aug. 13, 2020, no pet.)

(mem. op., not designated for publication). See TEX. R. APP. P. 33.1(a). We overrule

Appellant’s first issue.

Issue Two: Exclusion of Testimony

In his second issue, Appellant contends the trial court abused its discretion by

preventing Johnny Lee Wright from testifying about assaultive conduct committed by

Bowser against the witness or a third party.6 We review a trial court’s ruling on the

admissibility of evidence for abuse of discretion. Johnson v. State, 490 S.W.3d 895, 908

(Tex. Crim. App. 2016). A judge’s ruling on admission or exclusion of testimony will not

be reversed unless that ruling falls outside the zone of reasonable disagreement.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

In cases like the one presented here, defendants may be permitted to present

evidence regarding the victim’s character for violence or aggression for two purposes: (1)

to show the “reasonableness of defendant’s claim of apprehension of danger” from the

victim;7 and (2) to demonstrate that the victim was in fact the first aggressor.8 Ex parte

Miller, 330 S.W.3d 610, 618-19 (Tex. Crim. App. 2009). Here, the trial court allowed

Wright to testify about instances of Bowser assaulting Appellant, of Bowser’s reputation

6 The court, however, indicated it would permit Wright’s testimony “if or when the defendant testifies

that he had knowledge of those other assaults for purposes of his state of mind for self-defense.”
7 “Here, the defendant is not trying to prove that the victim actually is violent; rather, he is proving

his own self-defensive state of mind and the reasonableness of that state of mind.” Ex parte Miller, 330
S.W.3d 610, 619 (Tex. Crim. App. 2009).
8 “The chain of logic is as follows: a witness testifies that the victim made an aggressive move

against the defendant; another witness then testifies about the victim’s character for violence, but he may
do so only through reputation and opinion testimony under [Texas Rule of Evidence] Rule 405(a).” Id.

4
regarding aggression and violence, and to describe how he observed Bowser behave

while under the influence of narcotics.

Appellant candidly admits that most of the substance of Wright’s excluded

testimony was otherwise admitted. For example, in addition to Wright’s testimony that

Bowser “assaulted” him and was “aggressive and violent towards” him, Wright testified

he has personally witnessed Bowser being violent and aggressive towards Washington

and others, while under the influence of a foreign substance. Wright also testified Bowser

“mess[ed] with” other people’s property.

Moreover, testimony from Appellant, David Taylor,9 and David Courtney10 further

elaborated on Bowser’s unprovoked aggression toward Appellant. Appellant testified

about how weeks leading up to the shooting, Bowser coldcocked him “out of the blue.”

He also broke Appellant’s toe using a skateboard and hit him in the back of the head on

other occasions. Bowser twice attempted to take Appellant’s property; on one occasion,

he took Appellant’s speaker and broke it, saying, “That’s how I’m gonna do your bitch

ass.” Appellant testified that when Bowser used illegal drugs, he would get sweaty and

very aggressive. He said that on the night of the shooting, Bowser had removed his shirt,

was sweating and acting aggressively. Appellant characterized Bowser’s demeanor at

the time as “a gesture of ‘I’m fixin’ to get physical with somebody.’”

9 Taylor’s testimony generally described some of the acts that Appellant told the jury. Bowser’s
unprovoked beatings and threats led him to believe that Bowser was going to hurt or kill Appellant.
10 Courtney recounts that Bowser engaged in unprovoked physical violence a month or so before

Appellant shot Bowser, and “constant[ly]” threatened Appellant by saying things like, “I’ll get my gun and
shoot you.” He also testified that if he and Appellant saw Bowser, they would “go the other way just to
avoid conflict.”

5
Given the testimony by Courtney and Taylor, Appellant has failed to show that

Wright’s excluded testimony was necessary to show the reasonableness of his claim of

apprehension of danger from Bowser or to demonstrate that Bowser was the first

aggressor during the events that led to Appellant shooting him. Moreover, even if

Appellant had known that Wright had been assaulted, the evidence would at best be

cumulative of the testimony of Courtney and Taylor demonstrating Bowser’s violent

tendencies toward Appellant and others. We conclude that the trial court did not abuse

its discretion in excluding Wright’s proffered testimony. We overrule Appellant’s second

issue.

Conclusion

The judgment is affirmed.

Lawrence M. Doss
Justice

Do not publish.

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