Summary
concluding that casing from prior extraneous offense was relevant because it matched those recovered from scene of charged offense and helped to establish identity of shooter
Summary of this case from Keller v. StateOpinion
No. 05-05-01305-CR
Opinion issued June 23, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-72705-MN. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
Juan Gabriel Garcia appeals his conviction for capital murder. After finding appellant guilty and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at life confinement. In a single issue, appellant claims the trial judge erred in admitting certain evidence. We affirm the trial court's judgment. Appellant was charged with the April 11, 2003 murders of Elias Quintera and Martin Alvarez. Before trial, appellant pleaded guilty to the April 7, 2003 aggravated assault of Albert Gutierrez. During the aggravated assault, appellant pulled a gun and fired at, but missed Gutierrez. Police recovered a spent cartridge case from the Gutierrez investigation. Following the murders, police compared the Gutierrez cartridge case to shell casings recovered at the murder scene. Before trial, appellant agreed to stipulate that the Gutierrez cartridge case matched the shell casings from the scene of the Quintera and Alvarez murders; he later withdrew his agreement. Thereafter, when the State sought to introduce evidence that the spent cartridge case from the Gutierrez aggravated assault matched shell casings from the Quintera and Alvarez murder scene, appellant objected to the admission of the evidence. In a hearing outside the jury's presence, the State asked the trial judge to rule on the admissibility of the Gutierrez cartridge case. Appellant claimed it was an extraneous offense and was not relevant to the murders. He also alleged that any relevancy would be greatly outweighed by the prejudicial effect. The trial judge found the evidence was relevant and that, although the evidence was prejudicial to appellant, the probative value of the evidence was not substantially outweighed by the danger of prejudice. In his sole issue on appeal, appellant assigns this ruling as error. After reviewing the record, we cannot agree. We review a trial judge's decision to admit extraneous offense evidence for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). A trial judge does not abuse his discretion as long as his decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1991) (op. on reh'g). Whether extraneous offense evidence has relevance apart from character conformity is a question for the trial judge, and an appellate court owes "no less deference to the trial judge in making this decision than it affords him in making any other relevancy determination." Moses, 105 S.W.3d at 627. When a trial judge decides not to exclude certain evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Moses, 105 S.W.3d at 627; see Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005). We may not substitute our own decision for that of the trial judge. Moses, 105 S.W.3d at 627. Rule 404(b) provides that
[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given.Tex. R. Evid. 404(b). Extraneous offense evidence might be relevant under rule 404(b) to prove identity by rebutting a defensive theory that appellant did not commit the offense or that someone other than the appellant caused the specific injury alleged. Johnston v. State, 145 S.W.3d 215, 220 (Tex.Crim.App. 2004). In such a case, evidence of another act of misconduct may be offered to show that it was appellant, and not some other person, who was the assailant in the charged incident by showing appellant committed another act similar to the charged act or, as in this case, using the same weapon. See Johnston, 145 S.W.3d at 220. Before admitting evidence of the other act of misconduct to show the identity of the assailant under this theory, the State must first show that appellant is, in fact, the person who committed the other act. Johnston, 145 S.W.3d at 220. Appellant complains that identity was not an issue and that even assuming it was, the cartridge case from the Gutierrez assault does not connect appellant to the double homicide. We disagree. In light of appellant's withdrawal of his agreement to stipulate that the Gutierrez cartridge case matched those found at the double homicide and the focus of appellant's cross-examination of several witnesses, it was reasonable for the trial judge to conclude identity was an issue. Furthermore, when appellant pleaded guilty to the Gutierrez assault, he necessarily admitted to firing the gun in that assault. The shell casings recovered at the double murder scene matched the cartridge case in the Gutierrez case, thereby indicating that the same gun was present at both crime scenes. Given the link between the assault and the murders, the trial judge reasonably concluded the evidence was relevant and, therefore, admissible under rule 404(b) to show identity. See Carter v. State, 145 S.W.3d 702, 709 (Tex.App.-Dallas 2004, pet. ref'd) (discussing Siqueiros v. State, 685 S.W.2d 68, 71 (Tex.Crim.App. 1985) and concluding extraneous offense admissible to prove identity when identity is contested issue in case and something unique exists that connects extraneous offense to charged offense-i.e., there is some distinguishing characteristic common to both extraneous offense and offense charged.). Having concluded the evidence was relevant, we must examine the trial judge's decision that the probative value substantially outweighed the prejudicial effect. See Tex. R. Evid. 403 (evidence may be excluded if probative value of evidence is substantially outweighed by danger of unfair prejudice); Moses, 105 S.W.3d at 626. In examining a claim under rule 403, courts should consider the following factors: (i) the strength of the extraneous offense evidence to make a fact of consequence more or less probable; (ii) the potential of the extraneous offense to impress the jury in some irrational but indelible way; (iii) the time during trial that the State requires to develop evidence of the extraneous misconduct; and (iv) the need by the State for the extraneous evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002); Lane v. State, 933 S.W.2d 504, 520 (Tex.Crim.App. 1996). The evidence that the shell casing from the Gutierrez assault, to which appellant had pleaded guilty, matched shell casings from the double murder crime scene tended to connect appellant to the gun involved in the Quintera and Alvarez murders. Because the gun was not found after the murders, evidence linking appellant to the gun and the murders was important to the State's case. Although the presentation of the evidence from the Guitierrez assault required several witnesses, the time expended introducing the evidence and developing the link was minimal, taking less than twenty pages of a three-hundred page record. While there was some potential for the facts of the Gutierrez assault to impress the jury, the details of the assault were kept to a minimum and were not emphasized. Finally, the State needed to link appellant to the double homicide because, as noted previously, appellant raised the issue of identity. Under these circumstances, we conclude the trial judge's decision that the probative value of the evidence substantially outweighed the prejudicial effect was within the "zone of disagreement." See Montgomery, 810 S.W.2d at 391 (as long as trial court's ruling was at least within zone of reasonable disagreement, appellate court will not intercede). Accordingly, the trial judge did not err in allowing the evidence. Finally, even assuming the trial judge's decision to admit the evidence was in error, we would not reverse the trial court's judgment. Rule 44.2 provides that, excluding constitutional errors, an "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). In support of his claim that we must reverse his conviction because of the harmful effect, appellant argues the admission of the extraneous offense allowed the State to "dump onto the defendant an aura of criminality generally" and was a contributing factor in the return of a verdict of capital murder instead of murder. With respect to appellant's first argument, we conclude any "aura of criminality generally" came from the facts surrounding the crimes for which appellant was tried and found guilty. The evidence before the jury showed that appellant and a friend, Robert Moya, agreed to buy approximately 120 pounds of marijuana from Quintera. The price quoted for the drugs was $39,000, about $325 a pound, but Moya testified appellant did not intend to pay for the drugs. Appellant told Moya he intended to "finish the guy . . . point-blank." Moya was to accompany appellant when he "finish[ed] the guy" off but was arrested on an unrelated charge. Armando Lyra, appellant's cousin, testified he lived across the street from the decedents. According to Lyra, appellant and Jose Moran pulled up in a car and told Lyra they were going to talk to the decedents. Lyra started to go with them but took off running when he saw appellant pull out a gun. Lyra ran inside and told his mother what was happening. He then heard gunshots. He looked outside and saw appellant and Moran leaving. Diana Brown testified she had dated appellant. After April 11, 2003, she spent some time with appellant. She was driving home from a club one night when appellant told her to slow down. When she asked him why, he told her he was wanted by the police for murder. Brown later drove appellant to Laredo. She was also present when appellant's sister-in-law told appellant she "got rid of the gun." In light of the evidence introduced at trial relating to the double homicide, we cannot conclude appellant was substantially harmed by the introduction of the limited facts introduced regarding the Gutierrez assault. We similarly reject his second argument, that the evidence of the Gutierrez assault was likely a contributing factor in the return of a verdict of capital murder instead of murder. The main contributing factor to appellant's guilty verdict for capital murder was likely due to the jury instruction that murder "becomes a capital murder if the person murders more than one person during the same criminal transaction or during different criminal transactions where the murders are committed pursuant to the same scheme or course of conduct." Because the overwhelming weight of the evidence established that appellant shot Quintera and Alvarez rather than pay the $39,000 he owed them for 120 pounds of marijuana, we conclude appellant's complaint lacks merit. We overrule appellant's sole issue on appeal. We affirm the trial court's judgment.