No. 13-01-769-CR
Memorandum Opinion delivered and filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 148th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
RODRIGUEZ, Justice.
Appellant, Ricardo Acuna, stabbed his common law wife, Rosalie Davila, seventeen times during a domestic dispute. At trial, a jury convicted appellant of aggravated assault and sentenced him to nine years imprisonment. Appellant does not contest that he stabbed the victim but, by three issues, seeks a reversal and remand for new trial on grounds that extraneous offense evidence was improperly admitted during both the guilt/innocence phase and the punishment phase of the trial. The trial court has certified that this "is not a plea-bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2(a)(2). We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. II. ANALYSIS A. Extraneous Offense Evidence Admitted at Guilt/Innocence Phase
By his first issue, appellant contends that the trial court erred in admitting extraneous offense evidence during the guilt/innocence phase of the trial, in violation of rule 404(b). See TEX. R. EVID. 404(b). Specifically, appellant argues that the trial court erred in admitting testimony showing appellant held a screwdriver to his wife's neck during a prior argument. A trial court's admission of extraneous offense evidence is reviewed under an abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Hernandez v. State, 52 S.W.3d 268, 281 (Tex. App.-Corpus Christi 2001, no pet.). Generally, evidence of other crimes, wrongs, or acts is not admissible to establish the character of a person. TEX. R. EVID. 404(b). However, the prosecution may use character evidence to rebut the defense's attempt to define the character of the defendant. Id. 404(a)(1)(A). The challenged testimony in this case was introduced during the State's re-direct questioning of the victim in response to the victim's assertion that appellant was generally not violent and the stabbing incident was an isolated incident. The record shows that the victim testified about appellant's non-violent history as a result of questions from appellant's counsel, thereby opening the door for the prosecution's questions to rebut that character evidence. See Feldman v. State, 71 S.W.3d 738, 755-56 (Tex.Crim.App. 2002) (stating that defendant who opens door to otherwise inadmissible evidence risks having that evidence used against him). Given the fact that the admission of evidence was within the discretion of the trial court, see Hernandez, 52 S.W.3d at 281, and that the evidence was offered as rebuttal testimony, see TEX. R. EVID. 404(a)(1)(A), we find that the trial court did not abuse its discretion in admitting evidence of appellant previously threatening his wife. Appellant's first issue is overruled. B. Extraneous Offense Evidence Admitted at Punishment Phase
By his second issue, appellant argues that the trial court committed reversible error in allowing the introduction of extraneous offense evidence without first determining that the evidence was relevant and that the State could prove the offenses beyond a reasonable doubt. We review the trial court's decision to admit extraneous offense evidence during the punishment phase under an abuse of discretion standard. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). During the punishment phase, evidence may be offered by the State as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (Vernon Supp. 2004). The trial court has the responsibility of determining the threshold admissibility of extraneous offense evidence at the punishment phase; that is, the court must make an initial determination at the proffer of the evidence that the evidence is relevant and that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. Moore v. State, 82 S.W.3d 399, 409 (Tex. App.-Austin 2002, pet. ref'd). A review of the record shows that the State made an oral proffer of the extraneous evidence which would be presented during the punishment phase. Appellant responded with an objection as to the relevance of such evidence, which was overruled by the trial court. There is no requirement that the trial court hold a separate evidentiary hearing to determine the relevance and admissibility of extraneous evidence. Malpica v. State, 108 S.W.3d 374, 377 (Tex. App.-Tyler 2003, no pet.). Moreover, the trial court may determine whether there is sufficient evidence through an oral or written proffer of evidence, motions, pretrial hearings, and the trial, including any bench conferences. Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.-El Paso 2002, no pet.). We conclude, therefore, that the trial court complied with the preliminary review requirements regarding extraneous offense evidence. Thus, the trial court did not abuse its discretion in admitting the evidence. Appellant's second issue is overruled. By his third issue, appellant contends the extraneous offense evidence was both legally and factually insufficient to prove the offenses beyond a reasonable doubt. However, the verdict on punishment in a non-capital criminal case is a general verdict, and therefore, we cannot determine whether the jury considered the evidence of the extraneous offense or if it influenced the jury's determination. See Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Therefore, our review of the sufficiency of the evidence in this context is a review under an abuse of discretion standard of the trial judge's threshold ruling on admissibility. Malpica, 108 S.W.3d at 379; Thompson, 4 S.W.3d at 886. As we have concluded above, the trial court acted within its discretion in admitting the extraneous evidence. Therefore, appellant's third issue is overruled. III. CONCLUSION
Accordingly, the judgment of the trial court is affirmed.