Opinion
No. 05-03-01445-CR
Opinion Filed July 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-81350-02. Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
The trial court convicted Donna Lynn Thomas of credit card abuse and assessed punishment at 180 days in state jail, probated for two years, and a $750 fine. In two issues, appellant complains the trial court violated Texas Rules of Evidence 404(b) and 403 by allowing evidence of an extraneous offense. We affirm. Stacy Urtso purchased $194.74 in clothing from a boutique owned by appellant. She made the purchase with her credit card. Two days later, while Urtso was in Europe, the boutique charged her card another $1,194.74 without her consent or approval. Appellant was ultimately charged with making the unauthorized charge on Urtso's credit card. In the opening statement and while cross-examining State's witnesses, the defense proferred two theories: (1) the overcharge was made by accident and (2) any one of several people had access to the credit card machine and could have been the person to make the charge. Consequently, during its case-in-chief, the State called Peggy Arledge, who testified over defense objection that appellant had also overcharged her credit card. In her first issue, appellant contends Arledge's testimony should have been excluded under rule 404(b) because (1) the State did not give notice of its intent to introduce the evidence and (2) it was inadmissible as "same transaction contextual evidence." We begin with appellant's notice complaint. When the State called Arledge as a witness (but before she was sworn in or gave testimony), appellant objected as follows: "The only reason that they would want her to testify is basically hearsay, and under 404b I was not given notice and it's irrelevant and under 403." The trial judge informed appellant he would "consider any objections once the State finishes laying a predicate for the testimony." Arledge then testified, without objection, that she made a $98.16 purchase from the boutique on March 29, 2002, appellant waited on her, and her credit card was charged another $400 that same day without her consent. After Arledge testified, appellant moved to "strike the testimony based on 404b and that it's irrelevant under 403." The trial court asked the State's theory of admissibility, and the State responded that the evidence went to the defense theory of mistake and was offered "for the purpose of showing there was intent, plan, motive, opportunity, lack of absence or mistake in these transactions." Appellant then stated: "I'm objecting on 404b, irrelevant, 403 as far as to the substance of what her testimony is, that it's irrelevant, Your Honor." The trial court admitted the evidence, saying it would "consider the testimony for the purpose of scheme or duplicate occurrence, something of that nature." Appellant first argues the trial court erred in allowing the evidence because the State did not give her notice of its intent to introduce the evidence despite her timely request for such notice. The record shows that appellant did not reassert an objection as to lack of notice. She complained only that the evidence was not relevant under rule 404(b). The trial judge clearly did not rule on any notice objection; his concern was with the substantive violation. Because appellant did not object to notice at the time the trial court ruled, this complaint has not been properly preserved for our review. See Tex.R.App.P. 33.1. Appellant next argues the evidence was inadmissible under rule 404(b). Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex. R. Evid. 404(b). This evidence may, be admissible when it is relevant to a non-character conformity fact of consequence in the case, such as rebutting a defensive theory. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). We review a trial court's admissibility decision for an abuse of discretion. Id. Under the indictment in this case, the State had to prove that appellant intended to benefit fraudulently by using Urtso's credit card without her permission. Appellant's defense at trial — mistake or accident — was made clear early on in opening statement ("The evidence is going to show you . . . that this is nothing more than an overcharge that was an oversight, that was a mistake") and through the cross-examination of States' witnesses. To rebut that defensive theory and to prove the act was not accident or mistake, the State presented evidence that Arledge went to the boutique two weeks after the Urtso incident, was waited on by appellant, and made a $98.16 purchase. That same day, Arledge's credit card was charged an additional $400. This evidence had a purpose apart from character conformity; it was relevant to show that appellant had fraudulent intent when charging the $1,194.74 on Urtso's credit card and that the act was not a mistake or accident. In other words, this evidence showed that it was unlikely that appellant accidently or mistakenly made the charge to Urtso's credit card, if she overcharged another customer under similar circumstances. The first issue is without merit. In her second issue, appellant argues that even if relevant, the evidence was inadmissible under rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice. In determining whether the prejudicial effect of evidence substantially outweighs its probative value, several factors must be considered: (1) how compellingly the evidence serves to make more or less probable a fact of consequence, (2) the potential the evidence has to impress the jury in some irrational but indelible way, (3) how much trial time the proponent needs to develop the evidence, and (4) how great is the proponent's need for the evidence. See Montgomery v. State, 810 S.W. 372, 389-90 (Tex.Crim.App. 1990) (op. on reh'g). First, we note this was a bench trial. Although we no longer presume that a trial court will disregard inadmissible evidence, when a case is tried to a trial court rather than to a jury, the danger that the trier of fact will consider extraneous offense evidence for anything other than the limited purpose for which it is admitted is reduced, and the likelihood that the extraneous offense evidence will unfairly prejudice the defendant is diminished. Corley v. State, 987 S.W.2d 615, 621 (Tex.App.-Austin 1999, no pet.). Appellant's defense theory was that she overcharged Urtso by mistake. The extraneous offense evidence was highly relevant to rebut this theory. Further, the State needed little time to develop this testimony. The trial judge clearly did not consider the evidence for character conformity, given his remark that he allowed the testimony for a limited purpose. Under these circumstances, we cannot conclude the probative value of the evidence was substantially outweighed by its prejudicial effect. The trial judge did not abuse its discretion in admitting the evidence. We resolve the second issue against appellant. We affirm the trial court's judgment.