Opinion
NO. 09-15-00162-CRNO. 09-15-00163-CRNO. 09-15-00164-CR
05-04-2016
OTIS SAMUEL MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 410th District Court Montgomery County, Texas
Trial Cause No. 13-10-11074 CR (Counts I, II, and III)
MEMORANDUM OPINION
A jury found Otis Samuel Mitchell (Mitchell or Appellant) guilty on two counts of aggravated sexual assault and one count of aggravated kidnapping, both first degree felonies. See Tex. Penal Code Ann. § 22.021(a)(1)(A) (West Supp. 2015), Tex. Penal Code Ann. § 20.04(a) (West 2011). The trial court assessed punishment at imprisonment for fifty years for each of the two counts of aggravated sexual assault, and punishment at twenty-five years for aggravated kidnapping, with the sentences to run concurrently. Mitchell appealed, raising two issues pertaining to the admission of certain evidence at trial. We overrule both issues and affirm the judgments.
Section 22.021 of the Texas Penal Code was amended in 2015 after the events at issue in this case. The amendments do not affect our analysis of this case. Accordingly, we cite to the current version of the statute in this opinion.
FACTUAL BACKGROUND
Mitchell was indicted for an aggravated sexual assault of S.T. that occurred on or about October 12, 2013, and for the aggravated sexual assault and aggravated kidnapping of T.C. that occurred on or about October 13, 2013. Mitchell pleaded "not guilty" to all charges. At trial, S.T. testified that, on the evening in question, she was walking around the apartment complex where her father lived, holding her baby, when a man came up to her on a bicycle and asked if he could use her phone. S.T. explained that the man said his name was "Otis" and he told her that he had just gotten out of jail after being there for "like 30 days or something." According to S.T., the man used her phone to call several people.
We identify the victims and other witnesses by using initials or by their roles in the investigation. See Tex. Const. art. I, § 30(a)(1) (granting crime victims the "right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
After the man used her phone, he tried to kiss her, but she pulled away and told him to stop. S.T. testified that the man grabbed her by the neck, told her that he had a knife, and told her to pull her shorts down. S.T. provided the details of the sexual assault to the jury. After the assailant left, one of S.T.'s neighbors called 911. S.T. went to the hospital where a sexual assault exam was performed. S.T. was unable to identify Mitchell in the initial photo lineup. After a more recent photo of Mitchell was used in a second lineup, S.T. identified Mitchell as the man who sexually assaulted her.
A forensic nurse examiner (hereinafter the Nurse) testified at trial that she conducted a sexual assault exam on S.T. The Nurse explained that she observed bruising on S.T.'s neck and found injuries to S.T. that were consistent with the sexual assault S.T. reported.
T.C. testified that, in the early morning hours of October 13, 2013, a man approached her while she was sitting outside her apartment smoking a cigarette. At trial, T.C. identified Mitchell as the man who approached her that night, and T.C. explained to the jury that Mitchell asked T.C. for a cigarette and to use her phone. According to T.C., after Mitchell used her phone, Mitchell asked to use her restroom so T.C. allowed him inside her apartment to use the restroom. T.C. described the details of what occurred thereafter. Mitchell slammed the door shut, and told her he had a "22[,]" which she understood was a gun. Mitchell forced her into her room and moved a dresser in front of the bedroom door. T.C. testified that Mitchell identified himself as "Samuel[,]" slapped her, called her a "b----[,]" and he sexually assaulted her more than once during a two-and-a-half hour period.
T.C. testified that, before Mitchell left T.C.'s apartment, Mitchell tied her hands and her legs and left her in the closet. Mitchell stole an X-box, a stereo, a club, a cell phone, T.C.'s wallet, some identification documents belonging to T.C.'s son, and T.C.'s car. After Mitchell left, T.C. managed to make it to her neighbor's apartment, and the neighbor called the police.
The Nurse testified that she conducted a sexual assault exam on T.C. The Nurse stated that she did not find trauma to T.C.'s genitals, but she observed bruising on T.C.'s wrists and collected DNA swabs for testing. A forensic scientist with the Texas Department of Public Safety testified that Mitchell could not be excluded as a contributor to the swabs taken from T.C. T.C. testified that she could not identify Mitchell in the first photo lineup, but she was able to identify Mitchell as her assailant in the second photo lineup.
L.G. also testified at trial. She stated that on October 13, 2013, a man parked across the street from her home and came up to the fence. L.G. said the man told her "he was broke down[]" and he asked for some water and to use her phone. L.G. said she did not let him use her phone, but she did make a phone call for him and sent a text message to the number he provided to her that said "Otis is broken down on Landrum Village Drive." According to L.G., the man also asked her to give him a ride and he asked to go inside L.G.'s home, which she refused. L.G. also recalled that Mitchell smoked a cigarette while he was there. L.G. explained that she was also a smoker at that time, and her roommate did not like cigarettes or cigarette butts on the property so when she smoked, she did so outside, and she also kept the butts picked up and in a plastic bag. L.G. testified that she picked up the cigarette butts from that day, including the one Mitchell discarded, and placed them in a bag, and later she gave the bag to the police when they spoke with her during the investigation.
A police detective testified that the police were called to investigate a suspicious vehicle parked on Landrum Drive. A police investigator testified that when they ran the plates on the vehicle it came back as a stolen car registered to T.C. and that the vehicle had been reported as being connected to a sexual assault. The forensic scientist testified that Mitchell's DNA matched a cigarette butt left at L.G.'s house, and a police detective testified that police later found a backpack containing T.C.'s stolen belongings at Mitchell's residence.
J.C. testified that he knew Mitchell from his neighborhood and that Mitchell usually rode a bicycle. J.C. recalled that Mitchell contacted J.C. on the weekend of October 12, 2013, using phone numbers that J.C. did not recognize. J.C. recalled that when he spoke with Mitchell on the phone, Mitchell tried to sell J.C. an X-box and a vehicle.
C.C. testified that she knew Mitchell because she had worked with him. According to C.C., about one week before Mitchell was arrested for the sexual assaults and kidnapping, Mitchell came to her house on a bicycle, knocked on her door, and asked her for a cigarette and to use her cell phone. C.C. said she let Mitchell use her phone, but then he did not leave. C.C. stated that she then called her cousin who came over and finally, Mitchell left on the bicycle.
The jury found Mitchell guilty on all three counts. Mitchell elected to be sentenced by the court. The court assessed punishment at fifty years for each of the two counts of aggravated sexual assault, and the court assessed punishment at twenty-five years for aggravated kidnapping.
ISSUES ON APPEAL
In both of his issues on appeal, Mitchell complains about the admission of certain evidence during his trial. In his first issue, Mitchell argues that the trial court erred by admitting evidence of Mitchell's prior conviction for criminal trespass. On appeal, Mitchell appears to be arguing that certain testimony regarding his prior conviction was inadmissible under Rule 404 as evidence of an extraneous offense to prove identity and inadmissible under Rule 403 because any probative value of such evidence is outweighed by its prejudicial value. See Tex. R. Evid. 403, 404.
In his second issue, Mitchell argues that the trial court erred by admitting the testimony of C.C., who Mitchell argues testified that the Appellant "rode a bicycle up to her house, knocked on the door, and asked for a cigarette and to use the phone." Mitchell's brief argues that C.C.'s testimony was inadmissible under Rule 404 as an extraneous offense to prove identity because the identity of the Appellant could not have been considered a contested issue at trial at the time C.C. testified. See Tex. R. Evid. 404. He also argues such evidence was inadmissible under Rule 403 as more prejudicial than probative. See Tex. R. Evid. 403.
Mitchell's appellate brief cites to record testimony in the reporter's record given by witness "C.C.," also referenced in the record as "C.W." Although this witness identified herself by a name with the initials "C.W." at trial, we refer to her as "C.C." in accordance with the reporter's record.
STANDARD OF REVIEW
We review a trial court's decision to admit evidence and overrule objections under Rules 404 and 403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). "As long as the trial court's ruling is within the 'zone of reasonable disagreement,' there is no abuse of discretion, and the trial court's ruling will be upheld." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)); State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005). If the trial court's decision is correct on any theory of law applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344; Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
The erroneous admission or exclusion of evidence is generally reviewed under the standard for nonconstitutional error contained in Rule 44.2(b) of the Texas Rules of Appellate Procedure if the trial court's ruling merely offends the rules of evidence. Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Under Rule 44.2(b), even if the trial court erred in admitting the evidence, we may not overturn a criminal conviction for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).
To preserve error for appellate review, a party's objection generally must be sufficiently specific and timely. Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref'd). In order to preserve a Rule 403 complaint for appeal, the objecting party must make a 403 objection at trial separate from a Rule 404(b) objection. See Montgomery, 810 S.W.2d at 389.
"Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Tex. R. Evid. 404(b). Rule 404(b) codifies the common law principle that a defendant should be tried only for the offense for which he is charged and not for other extraneous crimes. Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008); Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993). "Rule 404(b) sets out an illustrative, not exhaustive, list of exceptions to the prohibition against admitting evidence of extraneous offenses including 'proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" Daggett v. State, 187 S.W.3d 444, 451 n.13 (Tex. Crim. App. 2005) (quoting Tex. R. Evid. 404(b)) (emphasis omitted); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). Identity of the assailant is "at issue" when the defense cross-examines witnesses regarding their identification of the assailant or alleges that someone else committed the crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).
Effective April 1, 2015, the Texas Supreme Court and Texas Court of Criminal Appeals adopted amendments to the Texas Rules of Evidence. See 78 Tex. B.J. 42 (Tex. 2015). The amendments were part of a restyling project that may have changed the wording of some of the evidentiary rules cited in this opinion. Id. at 42. All citations to the rules of evidence in this opinion refer to the rules in effect at the time of Mitchell's trial. --------
The Court of Criminal Appeals has explained that "'Rule 404(b) is a rule of inclusion rather than exclusion.' The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character." De La Paz, 279 S.W.3d at 343 (footnotes omitted) (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000) (discussing Fed. R. Evid. 404(b)).
"Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Texas courts utilize a two-step analysis for determining the admissibility of extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts determine first whether the evidence is relevant to a material issue in the case and second whether the relevant evidence should be admitted as an exception to Rule 404(b). Id. The trial court's Rule 404(b) ruling admitting evidence is generally within the zone of reasonable disagreement "if there is evidence supporting that an extraneous transaction is relevant to a material, non-propensity issue." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Even if evidence is admissible under Rule 404(b), it may be inadmissible under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Casey, 215 S.W.3d at 879; see Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair prejudice does not mean simply that the evidence injures the opponent's case. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). "Rather[,] it refers to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). The Rule 403 balancing factors include, but are not limited to, the following: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The trial court is presumed to have engaged in the required balancing test under Rule 403 once a party objects on the ground of Rule 403 and the trial court rules on the objection, unless the record indicates otherwise. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997). The party opposing admission of the evidence bears the burden to demonstrate that the danger of unfair prejudice substantially outweighs the probative value. See Kappel v. State, 402 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Any improper admission of complained-of evidence is harmless when the record establishes that essentially the same evidence is admitted elsewhere in the record without objection. See Marshall v. State, 210 S.W.3d 618, 631 (Tex. Crim. App. 2006) ("any error in the admission of the complained-of evidence was harmless" when the record established appellant brought out essentially the same evidence during his direct examination); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (court of appeals did not err in upholding trial court's admission of victim's out-of-court statements where the record reflected such statements came into evidence on eight separate occasions without objection) (citing and quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) ("An error in the admission of evidence is cured when the same evidence comes in elsewhere without objection.")); Elder v. State, 132 S.W.3d 20, 27 (Tex. App.—Fort Worth 2004, pet. ref'd) ("The admission of inadmissible evidence can be rendered harmless if the same or similar evidence is introduced without objection elsewhere during trial.").
EVIDENCE OF MITCHELL'S PRIOR CONVICTION
At the beginning of the trial, the State announced its intention to offer testimony and documents concerning Mitchell's prior conviction for trespass "to prove up the Defendant's identity[.]" Mitchell objected under Rules 403 and 404, arguing "the State has plenty of other evidence by which to prove identity[]" and that, to begin trial by telling the jury of Mitchell's prior conviction was unduly prejudicial and would "paint[] him as a criminal[.]" The court overruled the objection explaining "You can make the objection when it's offered."
In opening statement, the prosecutor stated that Mitchell "had been in jail on a misdemeanor charge for not a very long time[,]" and Mitchell lodged no objection. On direct examination of S.T., the following exchange occurred:
[State's attorney]: Did he tell you anything about having recently been released from the jail?
[S.T.]: Yeah. When he first started to use my phone.
[State's attorney]: Okay. Do you remember what he said?Mitchell did not object to this testimony.
[S.T.]: Just that he just got out. He was there like 30 days or something.
A police detective testified that
. . . [t]he suspect in the first case . . . had mentioned or named himself as Otis that had recently been released out of jail on a 30-day sentence. It was discovered that there was a person by the name of Otis Samuel Mitchell that had been recently released and the victim also used the victim's cellular phone and that phone number he dialed also linked back to the suspect.The detective then explained that S.T.'s phone had been used by her assailant to call a number that Mitchell had listed as his emergency contact when he had been in jail. Again, Mitchell did not object at the time the testimony was presented to the jury.
The State subsequently offered into evidence certain documents related to Mitchell's prior conviction for trespass. The documents included a jail record showing the dates Mitchell entered and was released from jail, the booking sheet, the charging information, and the judgment. Mitchell made an objection to the documents stating "Relevance and violates 403 and 404. It's too prejudicial for the probative value." The State responded that the exhibits were offered for the limited purpose to establish identity. The court overruled the objection but required redaction of "anything that has to do with anything other than that 30 day sentence[]" for criminal trespass. The court then gave the following limiting instruction:
. . . you're instructed that if there is any evidence before you in this case regarding the Defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case you cannot consider such evidence for any purpose, unless you find and believe beyond a reasonable doubt that the Defendant committed such other offense or offenses, if any. And even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.The custodian of records for the Montgomery County jail testified that the jail records showed Mitchell was confined on September 23, 2013, and released on October 7, 2013.
After the evidence was admitted, the trial court instructed the jury in accordance with Rule 404(b). The Appellant argues on appeal that identity was not at issue in this case, but he failed to make that argument to the trial court at the time the evidence was offered and admitted. See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Additionally, it appears from the record that the Appellant challenged identity at trial, as evidenced by the cross-examination of the victims regarding their in-court identification of Mitchell and their failure to identify him in the first photo lineups. See Page, 213 S.W.3d at 336 (noting that issue of identity may be raised by cross-examination); Burton v. State, 230 S.W.3d 846, 849-50 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (cross-examination of witness on issue of photo lineup identification was sufficient to raise issue of identity).
S.T. testified that her assailant, who was a stranger to her, told her that he "just got out []" of jail after serving "like 30 days or something." A police detective also testified that, at the time of the assaults, Mitchell had been recently released from jail. The challenged evidence showed that the Appellant had just been released from the Montgomery County Jail, only five days prior to the assaults, after completing his sentence for trespass. The trial court could have reasonably concluded that the evidence of Mitchell's prior conviction for trespass was relevant to establish identity and that it was not being used "solely for the purpose of proving bad character and hence conduct in conformity with that bad character." See De La Paz, 279 S.W.3d at 343. Additionally, lack of consent is a necessary element to all three charged offenses, and the trial court could have reasonably concluded that the establishment of the modus operandi evidence was relevant to prove lack of consent as a fact issue because it was an element of the charged offenses. See Casey, 215 S.W.3d at 880-81; Martin v. State, 173 S.W.3d 463, 466-68 (Tex. Crim. App. 2005). We cannot say that the trial court abused its discretion in overruling the objections.
Additionally, any error in the admission of the complained-of evidence was harmless as other evidence of Mitchell's prior conviction was admitted without objection. See Marshall, 210 S.W.3d at 631. Furthermore, the trial court gave a limiting instruction, and we presume that the jury followed this instruction. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
Mitchell also argues that the trial court should have determined whether the probative value of the evidence was substantially outweighed by unfair prejudice, and he asserts that evidence of his prior conviction was unduly prejudicial under Rule 403. As we have already explained herein, we presume that the trial court conducted the proper balancing test when it overrules a Rule 403 objection. The trial court is not required to place the results of its balancing test on the record. Williams, 958 S.W.2d at 195. The record before us does not affirmatively show that the trial court refused to conduct a Rule 403 balancing test. Rather, the trial court overruled the Rule 403 objection. We presume the trial court engaged in a balancing test before the court ruled on the objection. Furthermore, Rule 403 favors the admission of relevant evidence, and relevant evidence carries a presumption that it is more probative than prejudicial. Id. at 196. Mitchell has failed to overcome the presumption that the evidence was more probative than prejudicial. See id. at 195-96.
Finally, even assuming the trial court erred in overruling Mitchell's objections we will not reverse the judgment if the error was harmless. See Tex. R. App. P. 44.2. We review error in admitting extraneous offense evidence as non-constitutional error. Casey, 215 S.W.3d at 885. We will disregard non-constitutional error that does not affect a criminal defendant's substantial rights. See Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In our determination of whether error adversely affected the jury's decision, we consider everything in the record, including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire. Id.
At trial, victims S.T. and T.C. testified about the details of their assaults and both identified Mitchell as their assailant in the second photo lineup. T.C. also provided an in-court identification stating that Mitchell was the person who assaulted her. The Nurse testified as to her examinations of S.T. and T.C. after their assaults. The forensic scientist testified that the DNA evidence of the assault on T.C. could not exclude Mitchell as a contributor. A police detective testified that a telephone number called from S.T.'s phone on the night of S.T.'s assault was known to be that of Mitchell's mother, and the police testified that they found a backpack containing T.C.'s stolen belongings at Mitchell's residence.
The jury heard substantial evidence concerning the aggravated sexual assaults and aggravated kidnapping, as summarized above. We believe there is little risk that the jury would have convicted Mitchell based on the complained-of extraneous offense evidence, rather than the detailed and extensive evidence that supported the basis of the State's indictment. See Tex. R. App. P. 44.2(b). Therefore, we hold that the error in admitting this evidence, if any, did not affect a substantial right of Mitchell and must be disregarded. See id.; Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008); Casey, 215 S.W.3d at 885.
We overrule Mitchell's first issue.
TESTIMONY BY C.C.
C.C. testified at trial that she knew Mitchell because they had worked together and that, about a week before Mitchell was arrested for the sexual assaults and kidnapping, he rode to her house on a bicycle and asked for a cigarette and to use her phone. Defense counsel objected, saying "I want to object to this. I think we're trying to get into an extraneous offense." The following argument ensued outside the presence of the jury:
[Defense attorney]: Not sure what they're trying.
THE COURT: Relevance.
[State's attorney]: Relevance under 404 to show common plan or scheme, to show identity.
[Defense attorney]: I'm not sure we need identity. Well, maybe one other victim. We know he's been identified several times from different witnesses. As far as common scheme, she has already testified nothing happened.
THE COURT: There are similar characteristics here. Bike riding. Asking for a cigarette. Wanting to use a phone. Not leaving. So those are similar characteristics that I think would be admissible.
[State's attorney]: Judge, there's no independent bad act in this particular scenario, so I do not believe it would be unduly prejudicial.
THE COURT: It's not an extraneous offense. Just evidence to show some similar plan or scheme on the part of the Defendant. . . .
. . . .
And the objection is once again stated for me for the record?
[Defense attorney]: Relevance, first of all. Secondly, that it seems to be going into some kind of extraneous offense. We'll leave it at that.
THE COURT: All right. Overruled.
On appeal, Mitchell argues that C.C.'s testimony was not admissible to prove identity because, when C.C. testified, "identity could not have been considered a contested issue at this point in the trial." Mitchell also argues that any probative value of C.C.'s testimony was "substantially outweighed by the prejudicial effect of another potential victim." The State's brief argues that "[t]hese common characteristics—riding a bicycle, approaching a young female, at or near a residence, asking to use the victim's phone, smoking a cigarette, and attempting to gain entry inside the residence—are sufficiently distinct to establish the appellant's modus operandi in seeking to commit sexual assault."
The trial court stated that C.C.'s testimony was "evidence to show some similar plan or scheme on the part of the Defendant" and reflected "similar characteristics" to the charged offenses: "Bike riding. Asking for a cigarette. Wanting to use a phone. Not leaving." On the record before us, we cannot say that the trial court abused its discretion in admitting C.C.'s testimony over Mitchell's Rule 404(b) objection. It was not outside the zone of reasonable disagreement for the trial court to have admitted the evidence. The trial court could have reasonably concluded that the evidence was relevant and that the State was using the testimony for some purpose other than "solely for the purpose of proving bad character and hence conduct in conformity with that bad character." See De La Paz, 279 S.W.3d at 343.
As to Mitchell's argument on appeal that C.C.'s testimony was inadmissible under Rule 403, Mitchell did not make an objection on the basis of Rule 403 at trial and, therefore, that objection was not preserved for our review. See Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (where appellant did not raise a separate trial objection to the evidence based upon Rule 403, the issue is not properly presented for appellate review); Montgomery, 810 S.W.2d at 389 (to raise a Rule 403 complaint on appeal, the objecting party must make a 403 objection at trial, separate from its Rule 404(b) objection); see also Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) ("the point of error on appeal must comport with the objection made at trial"). Mitchell also failed to adequately brief this point on appeal. See Tex. R. App. P. 38.1(i); see Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (an inadequately briefed point of error presents nothing for review). We overrule Mitchell's second issue.
Having overruled both of Mitchell's issues on appeal, we affirm the judgments of the trial court.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on April 18, 2016
Opinion Delivered May 4, 2016
Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.