Opinion
No. 04-16-00838-CR
06-20-2018
Avie Lee LOZANO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR8489
Honorable Sid L. Harle, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
A jury convicted Avie Lee Lozano of three counts of burglary of a habitation with the intent to commit aggravated assault. The only issue Lozano presents on appeal is whether the trial court erred in admitting extraneous offense evidence during the guilt-innocence phase of trial. We affirm the trial court's judgment.
BACKGROUND
On October 23, 2014, five sheriff's deputies were conducting surveillance of an apartment in an effort to apprehend a person with outstanding warrants. The deputies were in three separate vehicles at different locations in the apartment complex.
Deputy Juan Guillen testified he heard a noise "like a boom" and saw people in the parking lot pointing to a certain apartment. Deputy Guillen then saw three men running down the staircase from the apartment. One of the men was dressed in gray pants and a gray shirt and was wearing sunglasses and a scarf or mask. The man was later identified to be Lozano. Deputy Guillen noticed Lozano was carrying a handgun. Deputy Guillen and Deputy Joe Quiroz started chasing the men but then focused their efforts on Lozano because he had a handgun. When Lozano threw the handgun into some bushes, Deputy Quiroz stopped chasing him and stayed with the handgun. Deputy Guillen continued chasing Lozano but lost sight of him after he jumped over a fence into a wooded area.
The apartment was a different apartment than the one under surveillance.
Sergeant Aaron Barasa testified he was driving his vehicle toward Lozano when he saw him throw two objects over the fence on one side of the road and jump over the fence on the other side of the road into a wooded area. Sergeant Barasa then maneuvered his vehicle to a location on the opposite side of the wooded area where he was joined by Deputy Chad Chapman. Both Sergeant Barasa and Deputy Chapman testified they saw Lozano running toward them and both observed that Lozano was trying to remove his gray pants. Sergeant Barasa stated Lozano had a gray top on before he jumped the fence but he had removed the gray top, and it was on the path behind him. Sergeant Barasa and Deputy Chapman apprehended Lozano and placed him in custody. In addition to the handgun and gray pants, evidence recovered from the scene included sunglasses and a cap in the area where Sergeant Barasa saw Lozano throw objects over the fence, and gloves, a t-shirt, and a gray shirt along the path Lozano had taken through the woods. After his arrest, Lozano was subsequently charged with three counts of burglary of a habitation with intent to commit aggravated assault.
Lozano called April Majallanez as his only witness. Majallanez testified Lozano "can't really run" because "he was born with a birth defect on his toe" and had asthma that prevented him from running. Majallanez further testified Lozano could not run if his life depended on it or if he was about to get hit by a car. Finally, Majallanez testified she dropped Lozano off in the area where he was arrested because they had gotten into an argument and Lozano wanted to get out of the car.
The State proffered two police officers as witnesses to rebut Lozano's defensive theory that he was not the man the deputies had chased from the apartment complex because he was unable to run. After the trial court overruled defense counsel's objections to the testimony, Officer Nicolas Garcia testified he was on patrol in June of 2015 and responded to a call for a burglar alarm at a business. Upon arriving at the scene, Officer Garcia saw a van dragging an ATM machine with a chain. Lozano was driving the van, and Officer Garcia observed that Lozano was wearing a long-sleeve brown shirt and shorts. Lozano ran from the scene, and Officer Garcia pursued Lozano in his vehicle. Officer Garcia testified Lozano was running fast enough that Officer Garcia needed his vehicle. When Lozano doubled back towards his van, Officer Garcia had to maneuver his car to continue the chase. Lozano then ran toward a tree line with high grass and brush. Officer Garcia lost sight of Lozano but broadcast a description of him and the direction of his flight. Within minutes, Lozano was apprehended by Officer Ernesto Pena. At that time, Lozano was no longer wearing a shirt, and his shorts and socks were covered with grass burrs and debris. Officer Pena testified Lozano was sweating profusely and out of breath. Lozano told the officers he had gotten into an argument with his girlfriend and was out jogging.
After hearing all of the evidence, including testimony from the victims of the offenses with which Lozano was charged, the jury convicted Lozano of three counts of burglary of a habitation with the intent to commit aggravated assault. Lozano appeals challenging the trial court's admission of the rebuttal testimony regarding the extraneous offense.
STANDARD OF REVIEW
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id.
APPLICABLE LAW
Evidence of extraneous offenses is generally not admissible as evidence to show a defendant acted in conformity with his character by committing the charged offense. TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). Evidence of extraneous misconduct may be admissible, however, if it is logically relevant to prove some fact other than character conformity. TEX. R. EVID. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Rebuttal of a defensive theory is one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b). Id.
In order for extraneous offense evidence to be admissible to rebut a defensive theory, the evidence must contradict some aspect of the defense itself or must logically serve to make defensive evidence undermining an elemental fact of the offense less probable. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). For example, when a defendant introduces evidence to establish he is not the type of person to commit the charged offense, the prosecution may impeach the defense witnesses' testimony by introduction of similar extraneous offenses. Roberts, 29 S.W.3d at 601. By raising a defensive theory, a defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense if the extraneous offense is similar to or has common characteristics with the offense for which the defendant is on trial. Sandoval v. State, 409 S.W.3d 259, 301 (Tex. App.—Austin 2013, no pet.); Richardson v. State, 328 S.W.3d 61, 71 (Tex. App.—Fort Worth 2010, pet. ref'd); Roberts, 29 S.W.3d at 601.
DISCUSSION
Lozano contends the trial court erred in admitting the extraneous offense evidence because the offense "was not a signature crime" and points to differences between the charged offense and the extraneous offense, including the extraneous offense being a theft of an "inanimate object" as opposed to a burglary with intent to assault a person. Lozano's contention, however, ignores that the extraneous offense was not being admitted in this case to prove identity based on a signature crime. Instead, the evidence was being offered to rebut a defensive theory. "Unlike when evidence is offered under Rule 404(b) to prove identity or a signature crime, the degree of similarity required to rebut a defensive issue is not [as] great, and the extraneous offense need not be identical to the charged offense." White v. State, No. 11-08-00241-CR, 2010 WL 2803018, at *4 (Tex. App.—Eastland July 15, 2010, no pet.) (not designated for publication); see also Dennis v. State, 178 S.W.3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (holding extraneous offense to rebut a defensive theory does not require same degree of exacting similarity as when extraneous offense is offered to prove a defendant's system). Instead, as previously noted, when extraneous offense evidence is offered to rebut a defensive theory, the offense need only have common characteristics with the offense for which the defendant is on trial. Sandoval, 409 S.W.3d at 301; Richardson, 328 S.W.3d at 71; Roberts, 29 S.W.3d at 601.
In this case, the extraneous offense shares several common characteristics with the charged offense that are relevant to rebut Lozano's defensive theory that he was incapable of running. In both offenses, Lozano ran from the scene into a wooded or brushy area while being pursued by an officer. In addition, Lozano removed clothing in an effort to change his appearance. Finally, Lozano claimed he was in the area because he had gotten into an argument with someone. Therefore, the trial court did not abuse its discretion in concluding the extraneous offense was sufficiently similar to the charged offense as to be admissible to rebut Lozano's defensive theory. See Menjares v. State, No. 11-14-00119-CR, 2016 WL 3085833, at *3 (Tex. App.—Eastland May 27, 2016, no pet.) (not designated for publication) (noting extraneous offense evidence is admissible to rebut a defense of physical inability); Perez v. State, No. 08-03-00424-CR, 2005 WL 387116, at *6 (Tex. App.—El Paso Feb. 17, 2005, no pet.) (not designated for publication) (holding extraneous offenses were admissible to rebut defendant's testimony that he was unable to run).
RULE 403
At trial, defense counsel also objected to the admissibility of the extraneous offense evidence under Rule 403; however, the State contends Lozano "does not advance a Rule 403 argument in his brief." In his reply brief, Lozano points to the reference to the trial objection in the statement of facts section of his brief, his quotation of Rule 403 in the law section of his brief, and his statement that relevant evidence may be excluded if its relevance is substantially outweighed by the danger of unfair prejudice in the argument section of his brief.
Although Lozano's brief contains brief references to the legal requirements for the exclusion of evidence under Rule 403, his brief does not include any substantive analysis applying Rule 403 to the facts of the case and explaining why Rule 403 required the exclusion of the evidence, and we are under no obligation to make Lozano's argument for him. Accordingly, Lozano's Rule 403 complaint is inadequately briefed and presents nothing for our review. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (holding failure to adequately brief issue waives any error); Jackson v. State, 424 S.W.3d 140, 155 (Tex. App.—Texarkana 2014, pet. ref'd) (holding Rule 403 complaint inadequately briefed); Jessop v. State, 368 S.W.3d 653, 681 (Tex. App.—Austin 2012, no pet.) (same).
CONCLUSION
The trial court's judgment is affirmed.
Marialyn Barnard, Justice DO NOT PUBLISH