Opinion
No. 05-03-01717-CR
Opinion Filed June 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F-0257208-JI. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
OPINION
James Lee Turner was indicted for capital murder. The jury found him guilty of the lesser included offense of murder, and assessed his punishment at 60 years of confinement and a $3,000 fine. He brings 10 issues on appeal, generally arguing that: (1) the evidence is legally and factually insufficient to support his murder conviction; (2) the trial court erred when it denied his motion to instruct the jury that two witnesses were accomplices as a matter of law; (3) the trial court erred when it overruled his objections to testimony about extraneous offenses; (4) the trial court erred when it denied his motions for mistrial; and (5) the trial court erred when it overruled his hearsay objections. We decide appellant's issues against him and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jesus Ruiz and Rodrigo Aceves drove to the Ruiz's girlfriend's apartment and sat inside Aceves' gray car in the apartment complex parking lot drinking beer and listening to music. Ruiz was in the driver's seat and Aceves was in the passenger seat. Appellant, J.B. Blunt, Cheriea McDuffie, and Erika Borjas were driving around and smoking marijuana in a red Toyota Camry, owned by appellant's girlfriend, Latonya Cooper. On their way back to Cooper's apartment, they pulled up behind the gray car occupied by Ruiz and Aceves. Appellant said he was going to rob the "hos." Appellant told Borjas to get out of the car and translate, and she complied. Appellant grabbed his revolver from under the driver's seat and got out of the red car. Appellant yelled at Ruiz and Aceves to get out of the car and give him their money. Appellant pulled Aceves out of the car and took his money, and then he went around to the driver's side. In broken English, Ruiz told appellant he did not have any money. Appellant got angry, shot Ruiz, jumped into the gray car, and drove away. Blunt, McDuffie, and Borjas followed appellant in the red car. Aceves heard two gun shots, looked down, and saw Ruiz laying on the ground. Ruiz told Aceves that he was in a lot of pain and Aceves moved him to the grass. Alfonsina Valero, Ruiz's girlfriend, and Carmen Serrato, her roommate, looked out of their apartment window because they heard arguing. They saw a car and two black men. One of the black men was pointing a gun at Ruiz. They ran to tell Valero's sister and heard two gun shots. When they returned to the window the two black men and both cars were gone. Valero saw Ruiz asking Aceves for help and she called the police. The police and an ambulance responded to Valero's call and Ruiz was taken to the hospital. Ruiz's gunshot wound to his hip went through his left iliac artery and vein, causing him to bleed to death. Meanwhile, Blunt, McDuffie, and Borjas followed appellant to Cooper's apartment. McDuffie and Borjas went into the apartment, while appellant and Blunt stripped the gray car of its stereo equipment. Blunt ran off when they heard sirens. Appellant put the stereo equipment in Cooper's apartment and drove off in the gray car. McDuffie and Borjas followed him in the red car. They drove approximately 20 minutes to a school parking lot. Appellant wiped the car down to get rid of any fingerprints, then he got into the driver's seat of the red car and drove away with McDuffie and Borjas. Appellant threw the keys to the gray car away. The police received information about a partial license plate number for the red car. One possible registrant was Cooper, who lived a few blocks from where Ruiz was killed. Two detectives went to the address and appellant answered the door. Appellant told the detectives his name was Eric Turner, but when asked for identification, he produced identification with the name James Turner and admitted he was James Turner. Also, appellant told the detectives the car belonged to his girlfriend and that numerous people drove it. While the detectives were speaking with appellant, Cooper drove the red Toyota Camry into the apartment complex parking lot. After speaking with Cooper the detectives asked appellant to accompany them to the police station and appellant agreed to go. Because appellant was going to ride in the police car, one of the detectives began to pat appellant down. Appellant started fighting with the detectives and they had to put him in a choke hold and handcuff him. During the investigation a detective spoke with McDuffie and Borjas. Borjas initially refused to cooperate, so he charged her with capital murder. Borjas gave the detective her statement and the charges against her were dropped for a lack of evidence. No charges were filed against McDuffie. The police did not find the murder weapon or the stolen property. Aceves, Valero, and Serrato were unable to identify appellant. Appellant was indicted for capital murder. The jury found him guilty of the lesser included offense of murder. After hearing evidence on punishment, the jury sentenced appellant to 60 years of confinement and fined him $3,000.III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first and second issues on appeal, appellant argues the evidence is legally and factually insufficient to support his murder conviction. He contends the evidence is insufficient to prove his identity as the person who shot Ruiz because the witnesses who identified him as the perpetrator were accomplices whose testimony was not sufficiently corroborated. The State responds that a rational jury could have found all of the elements of murder beyond a reasonable doubt, including that it was appellant who shot Ruiz, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Also, the State responds that McDuffie and Borjas were not accomplices as a matter of fact or law and, even if they were, there was sufficient corroboration of their testimony.A. Standards of Review 1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. And the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
A conviction cannot be sustained by accomplice testimony unless corroborated by other evidence tending to connect the defendant with the crime committed; the corroboration is not sufficient if it merely shows the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Although presence alone is insufficient to corroborate an accomplice's testimony, presence coupled with other suspicious circumstances may constitute sufficient corroboration. Davis v. State, 68 S.W.3d 273, 281-82 (Tex.App.-Dallas 2002, pet. ref'd) (citing Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999)). To determine whether an accomplice's testimony has been corroborated, an appellate court eliminates all accomplice testimony and then examines the remaining portions of the record to determine if any incriminating evidence exists that tends to connect the defendant with the crime committed. See Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). But the corroborating evidence need not be sufficient by itself to establish a defendant's guilt. Id.; Davis, 68 S.W.3d at 281. "Instead, any independent evidence verifying the accomplice's version as opposed to the defendant's version is corroborative, even if it only relates to a mere detail as opposed to a substantive connection between the defendant and the offense." Davis, 68 S.W.3d at 281.C. Application of the Law to the Facts
Appellant claims the evidence is legally and factually insufficient because no murder weapon was found, appellant's fingerprints were not found at the murder scene, and there was no eyewitness identification apart from those he claims are accomplices. Viewing the evidence in the light most favorable to the verdict, and even disregarding McDuffie's and Borjas' testimony, there was evidence that tends to connect appellant to the murder and corroborating McDuffie's and Borjas' testimony that appellant shot Ruiz. Aceves testified that two black males and two black females were in the red car. He stated that one of them had a gun, took his money, went around the car to Ruiz, and he heard two shots fired. He stated the man drove away in his gray car and the other man and two females followed in the red car. Valero and Serrato testified they saw a car, two black men, and one of the men was pointing a gun at Ruiz. They also stated they heard two shots, that when they returned to the window the men and both cars were gone, and Ruiz was on the ground asking Aceves for help. A detective stated he received information about a partial license plate number and description of the red car, and that Cooper was a possible registrant, she lived near the scene of the murder, and appellant had access to the car. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of murder. And the evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's murder conviction. We decide appellant's first and second issues against him.II. JURY INSTRUCTION ON ACCOMPLICE AS A MATTER OF FACT
In his seventh issue on appeal, appellant argues the trial court erred when it denied his motion to instruct the jury that McDuffie and Borjas were accomplices as a matter of law. He contends that Borjas was charged with the same offense. Also, he contends McDuffie believed she would not be charged and Borjas believed the charges filed against her would be dropped if they cooperated with the police. The State responds that the evidence shows they were not accomplices, but, even if they were, their testimony was sufficiently corroborated.A. Standard of Review
An appellate court reviews a trial court's submission of jury instructions under an abuse of discretion standard. Slott v. State, 148 S.W.3d 624, 632 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.Crim.App. 2000).B. Applicable Law
An accomplice is a person who participates in an offense, before, during, or after the commission of a crime and acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004); Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002). To participate in an offense, the witness must affirmatively act to promote the commission of the offense. Paredes, 129 S.W.3d at 536. A witness is not an accomplice simply because he knew of the offense and did not disclose it. Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). Evidence showing that a witness was present during the commission of the crime and participated in concealing the crime is not necessarily sufficient to raise the issue of accomplice status. Smith v. State, 721 S.W.2d 844, 851 (Tex.Crim.App. 1986). A witness is not an accomplice where there is no evidence that the witness was involved in the planning of or assisted in the preparation for the offense. See Paredes, 129 S.W.3d at 537-38 (witnesses who assisted in disposal of murder victims' bodies not accomplices). If the evidence creates a fact issue or is conflicting regarding whether a witness was an accomplice, the witness may be an accomplice as a matter of fact and the issue should be submitted to the jury. See Blake, 971 S.W.2d at 455; see also Meeks v. State, 135 S.W.3d 104, 110 (Tex.App.-Texarkana 2004, pet. ref'd); Green v. State, 72 S.W.3d 420, 423 (Tex.App.-Texarkana 2002, pet. ref'd). If the evidence clearly shows that a witness is an accomplice, then the witness is an accomplice as a matter of law, and the trial court has the duty to instruct the jury of this fact and of the necessity of corroborative evidence. See DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990); Green, 72 S.W.3d at 423. A prosecution witness who is indicted for the same offense for which the defendant is charged or a lesser included offense arising out of the same criminal episode is an accomplice as a matter of law. Herron, 86 S.W.3d at 631; cf. Paredes, 129 S.W.3d at 536 (accomplice as a matter of law is one who is susceptible to prosecution for offense for which defendant is charged or lesser included offense) (emphasis added). If a prosecution witness is an accomplice as a matter of law, the trial court errs if it fails to instruct the jury accordingly. Herron, 86 S.W.3d at 631. The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice as a matter of law. Paredes, 129 S.W.3d at 536. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term "accomplice." Id.C. Application of the Law to the Facts
McDuffie and Borjas testified for the State during the trial. A detective stated that no charges were filed against McDuffie and, although Borjas was charged with capital murder, the charges against her were dropped because there was not enough evidence. The trial court instructed the jury regarding the meaning of the term accomplice and the law regarding accomplices and that, if it determined that McDuffie and Borjas were accomplices, it could not convict appellant based on their testimony unless it believed there was other evidence that tended to connect appellant with the offense. Appellant objected to the trial court's instruction and asked the trial court to instruct the jurors that McDuffie and Borjas were accomplices as a matter of law. The trial court denied appellant's request. The record shows that McDuffie never got out of the car and Borjas got out of the car to translate. The record also shows Borjas got back into the car when appellant got out of the car with his revolver and that she asked him what he was doing and to get back into the car. There is no evidence in the record that McDuffie or Borjas were involved in planning or assisting in the preparation for the murder. See Paredes, 129 S.W.3d at 537-38. Their presence during the murder and assistance in getting rid of the gray car is not enough to qualify McDuffie and Borjas as accomplices. Smith, 721 S.W.2d at 851; see also Jester v. State, 62 S.W.3d 851, 854-55 (Tex.App.-Texarkana 2001, pet. ref'd). Finally, even though Borjas was charged with capital murder, those charges were dropped due to a lack of evidence and she was never indicted for the offense. See Herron, 86 S.W.3d at 631. Although McDuffie testified that she believed she would not be charged and Borjas testified that she believed the charges filed against her would be dropped if they cooperated with the police, the detective testified that no such promises were made. We conclude that the trial court did not abuse its discretion by refusing to instruct the jury that McDuffie and Borjas were accomplices as a matter of law. Appellant's seventh issue is decided against him.D. Harm Analysis
Nevertheless, assuming that the trial court erred when it denied his motion to instruct the jury that McDuffie and Borjas were accomplices as a matter of law, we review whether the error was harmless. Appellant argues the failure of the trial court to instruct the jury that McDuffie and Borjas were accomplices as a matter of law was harmful because it denied him a fair trial. The State responds that there was sufficient corroboration of their testimony.1. Applicable Law
When error regarding the trial court's failure to submit an accomplice witness instruction is properly preserved, reversal is required if "some harm" is shown. Herron, 86 S.W.3d at 632. Nonaccomplice testimony can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve. Id. A harmless error analysis for the omission of an accomplice witness instruction should be flexible, taking into account the existence and strength of any nonaccomplice evidence. Id. An appellate court examines the strength of nonaccomplice witness testimony by: (1) its reliability or believability; and (2) the strength of its tendency to connect the defendant to the crime. Id. The reliability inquiry may be satisfied if: (1) there is nonaccomplice witness evidence; and (2) there is no rational or articulable basis for disregarding the nonaccomplice evidence or finding that it fails to connect the defendant to the offense. Id. at 633.2. Application of Harmful Error Analysis to the Facts
The nonaccomplice witness evidence consisted of: (1) Aceves' testifimony that two black males and two black females were in the red car, one of the males had a gun and took his money, the male with the gun went around the car to Ruiz, he heard two shots fired, and the man with the gun drove away in Aceves' gray car and the other man and two females followed in the red car; (2) Valero and Serrato testified they saw a car and two black men, one of the men was pointing a gun at Ruiz, after they heard two shots those two men and both cars were gone, and Ruiz was on the ground asking Aceves for help; and (3) a detective stated he received information about a partial license plate number and description of the red car, and that Cooper was a possible registrant, she lived near the scene of the murder, and appellant had access to the car. As we stated in our discussion of appellant's first and second issues, there is sufficient corroborating nonaccomplice evidence tending to connect appellant to the crime. And there is no rational and articulable basis for doubting the reliability of the nonaccomplice evidence. We conclude that, even if the trial court erred when it denied appellant's motion to instruct the jury that McDuffie and Borjas were accomplices as a matter of law, any error was harmless.IV. EXTRANEOUS OFFENSES
In his fourth, sixth, and tenth issues on appeal, appellant argues the trial court erred by admitting evidence of extraneous offenses during the guilt/innocence and punishment stages of the trial.A. Standard of Review
An appellate court reviews a trial court's ruling on extraneous offense evidence for an abuse of discretion. See Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004). An appellate court shall give deference to a trial court's decision not to exclude the extraneous offense evidence and finding that the probative value of that evidence is not outweighed by the danger of unfair prejudice. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003).B. Article 38.22 Objection to Appellant's Use of Another Name
In his fourth issue on appeal, appellant contends the trial court erred by admitting the extraneous offense evidence that he used his brother's name to misidentify himself to the detectives over his objection pursuant to article 38.22 of the Texas Code of Criminal Procedure during the guilt/innocence stage of the trial. The State responds that the trial court did not abuse its discretion by admitting the evidence because appellant was not in custody when he made the statement.1. Applicable Law
Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of an oral statement of a defendant made as the result of custodial interrogation unless: (1) a visual recording was made of the defendant making the statement; (2) the defendant was given his Miranda warnings; (3) the recording equipment was operating, the operator was competent, and the recording is accurate and has not been altered; and (4) all material voices are identified. See Brown v. State, 92 S.W.3d 655, 660 (Tex.App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003), cert. denied 541 U.S. 938 (2004); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2005). Article 38.22 and Miranda apply only to statements made as the result of custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 478 (1966); see also Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). Custodial interrogation occurs when a person in custody is subjected to direct questioning or its functional equivalent. See Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001) (citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). "Custodial interrogation" includes any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Innis, 446 U.S. at 300-01; Roquemore, 60 S.W.3d at 868.2. Application of the Law to the Facts
The detective testified at trial that the information about the partial license plate numbers he received led him to Cooper's apartment. He stated he went to the apartment, appellant answered the door, and he asked to speak with the registered owner of the car. The State asked the detective how appellant introduced himself and appellant objected pursuant to article 38.22. The trial court held a bench conference during which the State pointed out that appellant was not even a suspect at this point and the court overruled appellant's objection. The detective then proceeded to testify that appellant told him that his name was Eric Turner, but later admitted he was really James Turner after showing the detectives his identification. It is undisputed that appellant was not in custody. Also, the record shows appellant introduced himself as Eric Turner. Asking appellant his name does not constitute an action or words that the police should know is reasonably likely to elicit an incriminating response. See Massie v. State, 744 S.W.2d 314, 317 (Tex.App.-Dallas 1988, pet. ref'd). We conclude the trial court did not abuse its discretion by admitting the evidence that appellant used his brother's name when he introduced himself to the detectives. Appellant's fourth issue is decided against him.C. Admissibility of Appellant's Struggle with the Detectives
In his sixth issue on appeal, appellant contends the trial court erred by admitting extraneous offense evidence of appellant's struggle with the detectives when they attempted to pat him down. He contends the evidence was not relevant and its prejudicial effect outweighed its probative value. The State responds that the evidence of appellant's struggle with the police was admissible under Rule 404(b) because it was evidence of his consciousness of guilt.1. Applicable Law
Evidence which is not relevant is not admissible. Tex. R. Evid. 402; see also Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990) (opin. reh'g). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Even when evidence is relevant, Texas Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts unless it is relevant to prove some issue other than the defendant's criminal character. See Montgomery, 810 S.W.2d at 386. Some of these permissible issues are: (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; and (8) absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Criminal acts that are designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense on trial are admissible under rule 404(b) to show "consciousness of guilt." Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1994). "Consciousness of guilt" evidence includes: (1) threats against the prosecutor, witnesses, and their families; (2) physical violence against witnesses or attorneys; (3) escape from confinement; (4) bail jumping; and (5) presentation of false identification to the police. Id. Once a trial court rules that the evidence is admissible under Texas Rule of Evidence 404(b), it may exclude that evidence if it determines that the probative value of the extraneous act is substantially outweighed by its danger of unfair prejudice. Feldman v. State, 71 S.W.3d 738, 754 (Tex.Crim.App. 2002); see Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman, 71 S.W.3d at 754-55; Montgomery, 810 S.W.2d at 389. When reviewing extraneous offense evidence to determine if its probative value is substantially outweighed by its prejudicial effect, an appellate court should apply the four Montgomery-Mozon factors to analyze the evidence: (1) was the probative value of the evidence, either alone or in combination with other evidence, compelling; (2) did the evidence have the potential to impress the jury in some irrational, but nevertheless indelible way; (3) what amount of time did the proponent of the evidence need to develop that evidence and did it distract the jury from considering the indicted offense; and (4) did the proponent of the evidence have other probative evidence available that would help to establish the same fact and did that fact relate to a disputed issue. See Manning v. State, 114 S.W.3d 922, 927-28 (Tex.Crim.App. 2003); see also Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). If the record reveals that one or more of the Montgomery-Mozon factors led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, an appellate court should conclude that the trial court abused its discretion by admitting the evidence. Reese, 33 S.W.3d at 241.2. Application of the Law to the Facts a. Relevant Evidence
Given the context, appellant's struggle with the detectives was designed to reduce the likelihood of his prosecution, conviction, or incarceration, and the evidence is relevant to show appellant's consciousness of guilt. See Ransom, 920 S.W.2d at 299. We conclude the trial court did not abuse its discretion by deciding that the evidence of appellant's struggle with the detectives was relevant and its relevance was apart from its evidence as character conformity.b. Probative Value Outweighed by Danger of Unfair Prejudice?
Because we have determined that the evidence was admissible under Texas Rule of Evidence 404(b), we must apply the Montgomery-Mozon balancing factors to decide if its probative value is substantially outweighed by its danger of unfair prejudice. See Manning, 114 S.W.3d at 927. The first factor requires courts to evaluate to what degree the extraneous offense evidence was compelling. When the proponent of the extraneous offense evidence has other compelling or undisputed evidence to establish the proposition or fact that the extraneous offense evidence goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance. See Montgomery, 810 S.W.2d at 390. The State introduced his attempt to conceal his identity from the police as other evidence of appellant's consciousness of guilt. Also, at trial, McDuffie and Borjas identified appellant as the shooter. We conclude the other evidence is compelling and this extraneous offense evidence was less compelling. The second factor requires courts to evaluate the potential of the extraneous offense evidence to irrationally impress the jury. Given the nature of the evidence, we cannot conclude that it was inherently inflammatory or that it was likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose. See Karnes v. State, 127 S.W.3d 184, 193 (Tex.App.-Fort Worth 2003, no pet.) (citing Taylor v. State, 920 S.W.2d 319, 323 (Tex.Crim.App. 1996) and Montgomery, 810 S.W.2d at 397)). The third factor requires us to evaluate the time needed to develop the extraneous offense evidence, during which the jury may have been distracted from consideration of the indicted offense. The record of the guilt/innocence phase of the trial is approximately 289 pages in length. The detective's testimony comprises approximately three pages of that record and the bench conference outside the jury's hearing is approximately three and one-half pages. Comparing the total number of pages in the record for the guilt/innocence phase of the trial with the number of pages representing the detective's testimony regarding his struggle with appellant, the record shows the State spent a relatively short period of time presenting the extraneous offense evidence. Although the guilt/innocence phase of the trial lasted approximately two days, the State spent the majority of its time proving the offense charged in the indictment. See Karnes, 127 S.W.3d at 193. Also, the development of this evidence could not have distracted the jury from considering the indicted offense because the jury had already heard evidence that appellant was violent, including that appellant was yelling at Ruiz and Aceves, he pulled Aceves out of the gray car and took his money, and he shot Ruiz. See Manning, 114 S.W.3d at 928 (regardless of time spent presenting evidence, it could not have possibly distracted the jury from the indicted offense). The fourth factor requires courts to evaluate the State's need for the extraneous offense evidence. The record shows that during the State's case-in-chief, it presented other probative evidence which tended to establish appellant's consciousness of guilt, but there was no showing of a particular need for this evidence. Balancing the Montgomery-Mozon factors in this case, we conclude that the trial court did not abuse its discretion by deciding that the prejudice of the evidence of appellant's altercation with the detectives does not substantially outweigh its probative value. We decide appellant's sixth issue against him.D. Admissibility of Unadjudicated Offense During Punishment
In his tenth issue on appeal, appellant contends the trial court erred by admitting extraneous offense evidence of the similar unadjudicated robbery of Dinicio Lopez during the punishment phase of the trial. He contends the extraneous offense was inadmissible because the State failed to prove it beyond a reasonable doubt due to the fact that it relied on the testimony of an accomplice. The State responds that the trial court did not abuse its discretion when it determined that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.B. Applicable Law
Article 37.07 § 3(a) is one of the guiding principles for the admissibility of evidence at a punishment hearing. Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App. 2002); see Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). It permits the State and the defendant to introduce "any matter the court deems relevant to sentencing. . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05); Sunbury, 88 S.W.3d at 233. Preliminary questions concerning the admissibility of evidence are determined by the trial court, which is not bound by the rules of evidence, except those rules with respect to privileges, in making its determination. See Tex. R. Evid. 104(a). When deciding the admissibility of extraneous offense evidence, the trial court must make an initial determination that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. Tex. Code Crim. Proc. Ann. art. 37.07, § 3; see also Tex. R. Evid. 104(b); Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994). The accomplice witness rule is not applicable to extraneous offenses offered during the punishment stage of a noncapital case. Salazar v. State, 87 S.W.3d 680, 684 (Tex.App.-San Antonio 2002, no pet.); Megas v. State, 68 S.W.3d 234, 242 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); Autry v. State, 27 S.W.3d 177, 181 (Tex.App.-San Antonio 2000, pet. ref'd); Goodman v. State, 8 S.W.3d 362, 365 (Tex.App.-Austin 1999, no pet.); Stevenson v. State, 997 S.W.2d 766, 770 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); see also Vasquez v. State, 56 S.W.3d 46, 48 (Tex.Crim.App. 2001) (accomplice witness rule inapplicable to extraneous offenses presented during punishment phase of capital murder case).C. Application of the Law to the Facts
During the punishment hearing, appellant requested a hearing on his motion in limine prior to the State offering evidence of two unadjudicated extraneous offenses, a shooting in a restaurant and an aggravated robbery of a person in a truck. Outside the presence of the jury, the trial court heard the testimony of two police officers and a firearm examiner that a black man and appellant's gun were involved in a shooting before this murder. The trial court also heard Borjas' testimony that appellant shot and robbed Lopez in his truck the day after the murder and a detective who investigated the murder stated he was investigating the red car for three offenses in a four or five day period. Appellant objected to the admissibility of the evidence because there was not enough corroborative evidence to support Borjas' testimony as an accomplice and there was no evidence appellant had the gun that was used to kill Ruiz before Ruiz was shot and killed. The trial court overruled appellant's objection with respect to the aggravated robbery of Lopez in his truck and sustained his objection with regard to the restaurant shooting. To support his complaint about Borjas' testimony, appellant relies on Texas Code of Criminal Procedure article 38.14, which states that a conviction may not be based on an accomplice's testimony unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14. But article 38.14 does not apply to evidence of extraneous offenses offered in the punishment phase. See, e.g., Salazar, 87 S.W.3d at 684; Goodman, 8 S.W.3d at 365. As a result, and regardless of whether Borjas qualifies as an accomplice, the accomplice witness rule does not apply to Borjas' testimony regarding the Lopez shooting and robbery at the punishment phase. We conclude the trial court did not abuse its discretion when it admitted testimony of the unadjudicated aggravated robbery of Lopez during the hearing on punishment. Appellant's tenth issue is decided against him.V. MISTRIAL
In his third and fifth issues on appeal, appellant argues the trial court erred when it denied his motions for mistrial. The State responds that the trial court did not abuse its discretion because any error was cured by the trial court's instructions to disregard.A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)); Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)) (the decision to deny a motion for mistrial is within the discretion of the trial court).B. Applicable Law
A mistrial is an appropriate remedy for a narrow class of highly prejudicial and incurable errors. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is only required when the impropriety is of a character that suggests that it would be impossible to withdraw the impression produced on the minds of the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). An instruction to disregard the improper statement will, in most instances, cure any error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000) (en banc); Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996).C. Application of the Law to the Facts
Appellant contends the trial court erred when it denied his motion for mistrial after the State improperly characterized McDuffie and Borjas' testimony as honest in its opening statement. He also contends the trial court erred by denying his motion for mistrial after the detective gave hearsay testimony about the license plate number, and make and model of the red car. Neither of these statements were of a character that suggested it would have been impossible to withdraw the impression the argument or testimony produced on the minds of the jury. See Hinojosa, 4 S.W.3d at 253. Further, the record shows that, after the trial court sustained appellant's objections, the trial court instructed the jury to disregard. See Martinez, 17 S.W.3d at 691; Shannon, 942 S.W.2d at 597. We conclude the trial court did not abuse its discretion by denying appellant's motions for a mistrial. Appellant's third and fifth issues are decided against him.VI. HEARSAY OBJECTIONS
In his eighth and ninth issues on appeal, appellant argues the trial court erred when it overruled his hearsay objections during the guilt/innocence and punishment stages of the trial.A. Standard of Review
The admissibility of an out-of-court statement under a hearsay exception is within the trial court's discretion, subject to review only for abuse of discretion. King v. State, 953 S.W.2d 266, 269 n. 4 (Tex.Crim.App. 1997).B. Applicable Law
Hearsay is a statement, other than one made by the declarant, while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The critical question is whether there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom. Thornton v. State, 994 S.W.2d 845, 853 (Tex.App.-Fort Worth 1999, pet. ref'd). Police officers may testify to information that might otherwise be considered hearsay in order to explain the course of an investigation or their presence at a crime scene. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995) (court allowed police officer to testify that decedent's appointment book showed defendant as a patient, which explained why the defendant became a suspect in the investigation); Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992) overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App. 2001) (the court allowed police officer to testify he began to suspect defendant, and decided to get arrest warrant for him after listening to another detective question third person). It is permissible for an officer to explain his conduct by testifying that he was acting in response to "information received," but he may not testify to "historical aspects of the case, replete with hearsay statements in the form of complaints and reports . . ." See Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989). The rules of evidence regarding hearsay do not apply to the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Texas Rule of Evidence 104. See Tex. R. Evid. 101(d).C. Application of the Law to the Facts
During the guilt/innocence stage of the trial, the trial court admitted, over appellant's objection, the following testimony:STATE: So what did you do in looking for these two females?
DETECTIVE: I went to various locations where [appellant] was known to hang out. I spoke with people that knew him, tried in an attempt to identify the young females that were — that I was looking for. I also spoke with patrol officers that patrolled the areas where the Defendant was know to hang out in an attempt — basically, it was like looking for a needle in a hay stack just trying to find who these people were.
STATE: And you eventually found the two — two females that you were looking for?
DETECTIVE: Yes, sir.
STATE: And which two females were those?
DEFENSE: Judge, I'm going to object Your Honor because he's already said he's received this information from conversations from other people, and we don't have the opportunity to cross-examine.
COURT: What's your objection?
DEFENSE: Hearsay.
COURT: Overruled.
STATE: May I proceed, Your Honor?
COURT: Yes.
STATE: And what two females did you finally find?
DETECTIVE: I found Erika Borjas and Cheriea McDuffie.The detective's testimony explained the course of his investigation and how he found McDuffie and Borjas, who had already testified at trial. His testimony explained his conduct with respect to information he received, he did not state the content of those conversations. We conclude the trial court did not abuse its discretion when it denied appellant's hearsay objection to the detective's testimony regarding how he found McDuffie and Borjas. During the punishment stage of the trial, the trial court admitted the following testimony over appellant's objection:
STATE: What were you — why were you working with these other detectives?
DETECTIVE: We were looking at a series of robberies that had a similar MO, as well as a similar vehicle description.
STATE: And what was the vehicle description that you were looking for?
DEFENSE: Calls for hearsay.
COURT: Overruled.
DETECTIVE: It was a maroon Toyota Camry, partial license plate of M11P.
STATE: How many offenses were you looking at with that vehicle?
DETECTIVE: There were three offenses within a four or five-day period.The record shows this testimony was given in a hearing outside the presence of the jury to determine the admissibility of the evidence of the unadjudicated extraneous offenses pursuant to Texas Rule of Evidence 104. The rules of evidence regarding hearsay do not apply to the trial court's rule 104 hearing. See Tex. R. Evid. 101(d). We conclude the trial court did not abuse its discretion when it overruled appellant's hearsay objection in the hearing held outside the presence of the jury during the punishment stage of the trial. Appellant's eighth and ninth issues are decided against him.