Opinion
NO. 01-16-00794-CR
07-12-2018
BRANDON DESHAWN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1478986
MEMORANDUM OPINION
A jury found appellant, Brandon Deshawn Williams, guilty of the offense of aggravated robbery and assessed his punishment at confinement for twenty-seven years. In his sole issue, appellant contends that the trial court erred in admitting certain extraneous-offense evidence.
See TEX. PENAL CODE ANN § 29.03(a)(2) (Vernon 2011).
See TEX. R. EVID. 403, 404(b).
We affirm.
Background
Criswan Jones, the complainant, testified that on the night of August 20, 2015, he noticed two men at his apartment complex as he was leaving to pick up his girlfriend from work. One of the men was "big," and the other man was smaller. As the complainant walked past them to get to his car, the "big one" asked him for the address of the apartment complex. The men were still there when the complainant and his girlfriend returned.
As the complainant walked past the men toward his apartment, the smaller man, who the complainant identified as appellant at trial, pointed a firearm at him and demanded his car keys. When the complainant handed appellant his car keys, appellant also grabbed the cellular telephone from the complainant's pocket. At the same time, the "bigger" man took the cellular telephone of the complainant's girlfriend. Both of the men then got into the complainant's car and drove away. The complainant and his girlfriend went to a neighbor's apartment and called for emergency assistance.
Later that evening, the complainant went to another location where law enforcement officers had detained two suspects. There, he identified appellant as the person who took his car keys while pointing a firearm at him. The complainant testified that he was certain of his identification of appellant.
Leroy Chevalier testified that he was with appellant on the night of August 20, 2015. Before the incident with the complainant, he and appellant had taken appellant's car to "scope out" a person that they had planned "to rob." According to Chevalier, they brought three firearms with them in appellant's car that night. Appellant and Chevalier located their intended victim in a red truck, but before they could approach him, someone in the red truck began "shooting" at them. Chevalier and appellant then "shot back and drove off"; however, the person in the red truck followed them and continued to fire shots in their direction. Chevalier shot back with his firearm while appellant drove his car. Eventually, the person in the red truck turned around and stopped pursuing them. But at that point, appellant's car was badly damaged, so Chevalier and appellant abandoned the car and walked to a nearby apartment complex, where they encountered the complainant.
At the apartment complex, Chevalier and appellant telephoned family and friends, searching for a ride because appellant's car was not drivable at that point. They then saw the complainant as he was leaving and asked him for the address of the apartment complex. Chevalier and appellant were still trying to find someone to pick them up when the complainant returned with a "female." As the complainant walked by, appellant held a firearm "to his head" and took "his car keys [and everything else he had] . . . basically robbing him."
At the same time, Chevalier grabbed the woman's cellular telephone and threw it away from her to prevent her from calling anyone. He and appellant then got into the complainant's car and drove away. However, they were quickly stopped by law enforcement officers.
Although appellant initially stopped the car, he "sped off" as the law enforcement officers exited their patrol car and began to approach. A few blocks later, Chevalier and appellant abandoned the complainant's car and ran "on foot" into a residential neighborhood. They eventually hid in an empty van in the backyard of a private residence.
Law enforcement officers located Chevalier and appellant with the assistance of a service dog. Chevalier immediately surrendered, but appellant refused to exit the van, and the service dog was sent in to draw him out. The officers eventually took appellant, along with Chevalier, into custody and escorted them back to where they had abandoned the complainant's car so that they could be identified by the complainant. At trial, Chevalier also identified appellant as the same person who had taken the complainant's car keys while pointing a firearm at him.
Houston Police Department ("HPD") Officer J. Huckabee testified that on the evening of August 20, 2015, he and HPD Officer J. Harris were dispatched to an aggravated robbery that occurred at an apartment complex. They were told that a "gold or tan . . . Toyota Camry" with paper tags had been stolen. On their way to the scene, Huckabee and Harris spotted the car and initiated a traffic stop. Initially, the stolen car stopped, but it quickly sped off as they exited their patrol car. The car then stopped at an intersection where the driver and the passenger exited the car and "proceeded to run on foot." Although Huckabee attempted to chase the two men, he was not able to catch them. He called in other units to set up a perimeter and a canine unit to track the scent of the two men. Ultimately, the dog traced the driver and the passenger to a van in a private resident's yard.
Officer Huckabee called for the two men to surrender from outside of the van. One of the men surrendered quickly and was taken into custody. The other man, who Huckabee identified at trial as appellant, would not surrender, so the service dog was sent into the van to draw him out. Appellant eventually surrendered and was taken into custody. Huckabee then took appellant and the other man back to the location where they had abandoned the stolen car. And the complainant positively identified appellant as the person who had taken his car keys while pointing a firearm at him.
Standard of Review
We review a trial court's ruling on the admissibility of extraneous offenses for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Extraneous-Offense Evidence
In his sole issue, appellant argues that the trial court erred by "[p]ermitting the [j]ury to [h]ear [e]vidence [t]hat [a]ppellant [e]ngaged in an [e]xtraneous [a]ggravated [a]ssault [w]ith a [d]eadly [w]eapon [p]rior to the [a]ggravated [r]obbery [f]or [w]hich [a]ppellant [w]as [f]ound [g]uilty [b]ecause [t]he [p]robative [v]alue of [t]his [e]xtraneous [o]ffense [i]s [s]ubstantially [o]utweighed by the [d]anger of [u]nfair [p]rejudice."
The admission of extraneous offenses to prove a person's character or to show that the person acted in conformity with that character is prohibited. TEX. R. EVID. 404(b)(1). Evidence of extraneous offenses may, however, be admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2); see also Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). And evidence of extraneous acts may also be admissible to rebut defensive theories. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).
The state's argument that appellant failed to preserve an objection based on Texas Rule of Evidence 404 is without merit because appellant's objection to the "extraneous[-]offense" evidence is apparent from the record and would have been obvious to the judge and opposing counsel. See Washington v. State, No. 01-06-00042-CR, 2007 WL 1412903, at *2 (Tex. App.—Houston [1st Dist.] May 10, 2007, pet. ref'd) (mem. op., not designated for publication) ("[W]here the correct ground of exclusion [i]s obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection.").
In this case, appellant's entire defense was premised on mistaken identity. Then, Chevalier's testimony that he was with appellant before, during, and after the robbery was relevant to rebut appellant's defensive theory of mistaken identity. Lane, 933 S.W.2d at 519 ("Identity and the rebuttal of defenses are both valid purposes for admitting evidence under Rule 404(b)."); see also Page v. State, 125 S.W.3d 640, 649 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (trial court did not err in admitting testimony defendant "possessed a black handgun" before robbery because "part of the State's identity evidence was [the witness's] testimony that [appellant] carried a handgun that matched the description of the handgun used in the robbery"). Similarly, Chevalier's testimony was admissible to establish appellant's state of mind or motive in stealing the complainant's car. He testified that at the time of the robbery, appellant's car was not drivable due to damages it sustained in the shootout from earlier in the evening. And Chevalier and appellant were trying to find transportation away from the apartment complex at the time they stole the complainant's car. See Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (evidence linking car to homicide admissible where "State used it to explain one of [defendant's] motives for the insurance fraud"). Accordingly, we hold that the trial court did not err in overruling appellant's "extraneous offense" objection.
Identity was the primary, if not only, substantial defensive issue raised at trial, contrary to appellant's assertion otherwise.
We need not address appellant's arguments about whether or not Chevalier's extraneous-offense testimony concerned the "same transaction" as the aggravated robbery for which appellant was convicted because we have held that the extraneous-offense evidence is admissible on other grounds. See TEX. R. APP. P. 47.1; Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002) ("[I]f the decision is correct on any theory of law applicable to the case, it will be sustained.").
However, even if extraneous-offense evidence is admissible under rule 404(b), a trial court still has "a nondiscretionary obligation to weigh the probative value of the evidence against the unfair prejudice of its admission" when, as here, a defendant objects to the admission of extraneous-offense evidence based on rule 403. See Martines v. State, 371 S.W.3d 232, 246-47 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also TEX. R. EVID. 403. When determining whether the danger of unfair prejudice in the admission of extraneous-offense evidence substantially outweighs the probative value of the evidence, we consider (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in some irrational but indelible way, (3) the time during trial required to develop the evidence, and (4) the State's need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also Smith v. State, 355 S.W.3d 138, 153-54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd).
Where the trial court overrules a party's objection, we assume that it conducted the balancing test and determined that the evidence was admissible. Martines, 371 S.W.3d at 247. The trial court need not perform this balancing test on the record. Id. The opponent of the evidence has the burden to demonstrate that its negative attributes substantially outweigh any probative value. Montgomery, 810 S.W.2d at 377. Great deference is given to the trial court's decision to admit or exclude evidence under rule 403. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Appellant argues that the extraneous-offense evidence should have been excluded under rule 403 because Chevalier was an accomplice to the extraneous offense and his "uncorroborated testimony" was untrustworthy and not necessary because "[i]ntent and identity were not contested issues." However, the record reflects that identity was the only issue at trial. For example, in his closing argument, appellant's counsel told the jury: "The only question for you to decide is does the evidence prove to the point of reasonable doubt and beyond that point that Mr. Williams sitting there is one of those two robbers?" As such, Chevalier's testimony was substantially probative and important to the State's case given that the sole defensive issue at trial concerned identity. Further, the trial court issued a limiting instruction in its charge that directed the jury to consider the evidence of the extraneous offense only "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." Therefore, any prejudice or confusion caused by the admission of the extraneous-offense evidence would have been mitigated by, among other things, the trial court's limiting instruction. See Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ("The impermissible inference of character conformity can be minimized, however, with a limiting instruction."). Finally, Chevalier's testimony regarding the extraneous-offense evidence did not consume so much time that it would have confused the jury as only approximately ten pages, of the one hundred and twenty-three pages of testimony in the record, concerned the extraneous offense.
We understand appellant's statement that Chevalier's testimony was suspect and "uncorroborated" as an argument regarding the probative force of the evidence in the context of a rule 403 analysis. To the extent that appellant is attempting to make another challenge to Chevalier's testimony, it is inadequately briefed. See TEX. R. APP. P. 38.1.
Any alleged confusion by the jury would further be mitigated by the fact that appellant's counsel dedicated a significant portion of his closing argument to explain that his client was not on trial for the extraneous offense.
Accordingly, we hold that the trial court did not abuse its discretion in determining that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).