Opinion
No. 04-03-00945-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-5684, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Ralph Moreno was indicted for the offense of capital murder but was convicted by a jury of murder. On appeal, Moreno contends that the trial court abused its discretion in admitting evidence of an extraneous offense during the guilt/innocence phase of the trial. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4. The State's theory of the case was that Moreno stabbed the victim while in the course of stealing the victim's television and money. Moreno contends that the trial court abused its discretion in admitting evidence that he had attempted to steal a television from his former girlfriend the day before the murder occurred. The ex-girlfriend testified that Moreno attempted to steal the television so he could sell it to purchase drugs. As a general rule, to prevent an accused from being prosecuted for some collateral crime or misconduct, the State may not introduce evidence of bad acts similar to the offense charged, even if relevant. Tex. R. Evid. 404(b). Rule 404(b) provides that evidence of other crimes, wrongs or acts is not admissible to prove a defendant's character in order to show action in conformity therewith; however, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). Even if evidence is admissible under Rule 404(b), the evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue influence, or needless presentation of cumulative evidence." Tex. R. Evid. 403. A proper Rule 403 analysis includes, but is not limited to, four factors: (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. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). A trial court's decision regarding the admissibility of evidence under Rule 404(b) and Rule 403 is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990). During opening argument, the State alluded to the evidence about which Moreno complains. The prosecutor focused on the television missing from the victim's home and then stated:
You're going to learn that the police officers who patrol this particular area of town had heard about Ralph Moreno before. That on the 4th of March, they had been called over to the defendant's ex-girlfriend's house because she had a complaint concerning this defendant trying to steal a TV. And that one of these officers, after learning that a TV had been taken from the complainant's home on March the 5th, he got a hunch. He called his fellow patrol officers and they followed up on that hunch and they caught the defendant.In addition, defense counsel alluded to the reason this evidence was crucial to the State's case:
At the 3rd of October meeting, and really throughout the jury selection process, the State has indicated to you correctly that they have the burden of proving guilt of all of the elements of capital murder beyond a reasonable doubt. And the State has taken great pain[s] to tell you that they have to prove the how, the when, the where, and they've taken pains to say, we don't have to prove the why. We don't have to prove the motive. Well, that's only part correct. They do have to prove the why. The why is exactly the nexus that they had talked to you about, that we had talked to you about. They have to prove that the murder was committed, in fact, for the purpose of accomplishing the taking of the property. That is the why. I know a lot of you struggled with that concept during selection. Make them prove it.After the trial court overruled defense counsel's objection to the testimony of Moreno's ex-girlfriend regarding his attempt to steal her television, the trial court admonished the jury as follows:
Ladies and gentlemen of the jury, evidence may be introduced from this witness concerning alleged acts of misconduct by the defendant. You cannot consider such testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such acts of misconduct, if any were committed, and even then you may only consider the same in determining the motive and intent of the defendant in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.In addition to the testimony of the ex-girlfriend, Officer Steven Trujillo testified, without objection, regarding his response to a 911 call, and the ex-girlfriend's report of Moreno's attempt to steal her television. Error regarding improperly admitted evidence is waived when the same facts are proven by other properly admitted evidence. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993). Because Officer Trujillo testified regarding the same facts as the ex-girlfriend, any error regarding the ex-girlfriend's testimony is waived. Even if error was not waived, the trial court did not abuse its discretion in admitting the evidence. The evidence was relevant and admissible under Rule 404(b) to prove motive — an issue that defense counsel informed the jury during opening argument that the State was required to prove. We agree with the State that the ex-girlfriend's testimony provided circumstantial evidence of Moreno's reason or motive for going into the victim's home — to steal property to support his drug habit. See Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999) (holding extraneous offense was admissible to prove motive for killing). Furthermore, applying Rule 403, the probative value of the evidence and the State's need for the evidence weighed in favor of admissibility. The time needed to develop the evidence was not great. Although the potential to impress the jury may have weighed against admissibility, this potential was lessened by the limiting instruction given by the trial court. Accordingly, the trial court did not abuse its discretion in weighing all of the factors and determining that the evidence was admissible. The trial court's judgment is affirmed.
Moreno complains only about the extraneous theft offense, not the reference to his use of drugs.