Opinion
No. 05-02-01024-CR; No. 05-02-01025-CR; No. 05-02-01026-CR
Opinion Filed June 17, 2003 Do Not Publish
On Appeal from the Judicial District Court No. 194, Dallas County, Texas, Trial Court Cause Nos. F01-58893-LM, F01-59108-NM, F01-76116-NM. AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Appellant appeals three convictions for aggravated robbery. Appellant pleaded guilty to a jury in each case. After finding appellant guilty in accordance with the trial court's instructions, the jury assessed punishment at sixty years' confinement and a $5,000 fine in each case. In two points of error, appellant contends the trial court erred in admitting evidence of extraneous offenses. For the following reasons, we affirm the trial court's judgments. After appellant pleaded guilty to the jury, the trial court proceeded to the punishment phase. At the punishment hearing, the State presented evidence of the three robberies for which appellant had been found guilty, as well as three extraneous robberies. Appellant then testified and admitted committing the six offenses. In explaining his actions, appellant stated that he grew up in a poor neighborhood where he developed a drug problem at an early age. Appellant began his addiction with alcohol and marijuana and progressed to using cocaine by the time he was twenty. Initially, appellant was spending $400 a week to support his drug habit. By the time of the offenses, appellant's habit cost him almost $1,200 per day. Appellant claimed that he only participated in the robberies to pay his drug dealer. On cross-examination, appellant claimed his dealer planned the robberies and kept all the proceeds. He said he was under the influence of drugs during all of the offenses and was unable to remember everything that happened. Appellant conceded his voluntary statement to police contained details about the offenses, but claimed he was only able to provide such details because the officer coached him. Further, appellant claimed he could not remember much of the interview because he was under the influence at that time as well. On rebuttal, the State called Detective Robert Quirk. Quirk testified that he questioned appellant after his arrest and that appellant did not appear under the influence. During the interview, Quirk asked appellant about some unsolved extraneous robberies. Appellant admitted involvement in several offenses. To confirm appellant's responsibility for those offenses, Quirk asked appellant to give information about the offenses. Appellant was able to provide specific information about eighteen other robberies. In his first point of error, appellant contends the trial court erred in admitting evidence that he committed the eighteen extraneous robberies. According to appellant, the extraneous offenses were inadmissible because he did not "open the door" to their admission. Appellant fails, however, to present any argument or authority to show this evidence was inadmissible in the first instance. Without such a showing, whether appellant opened the door is not relevant. Consequently, this issue is inadequately briefed and presents nothing to review. See McFarland v. State, 928 S.W.2d 482, 512 (Tex.Crim.App. 1996); Lewis v. State, 911 S.W.2d 1, 5 n. 8 (Tex.Crim.App. 1995). Furthermore, the trial court has broad discretion in determining the admissibility of evidence at the punishment phase of trial. Davis v. State, 68 S.W.3d 273, 282 (Tex.App.-Dallas 2002, pet. ref'd). The code of criminal procedure allows for the admission of evidence the trial court deems relevant to sentencing, including evidence of other crimes. See Tex. Code Crim. Proc. Ann. art. 37.07, sec. 3(g) (Vernon Supp. 2003); Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App. 2002). At the punishment hearing, "relevant" evidence is that which assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented. Davis, 68 S.W.3d at 282-83. Because the jury is not determining discrete factual issues at punishment, determining whether evidence is admissible at punishment is essentially a policy question. See Sunbury, 88 S.W.3d at 233. Some policy reasons that should be considered when determining whether to admit punishment evidence include (1) giving complete information for the jury to tailor an appropriate sentence, and (2) the policy of optional completeness. Id. at 233-34. In this case, the State presented evidence appellant participated in eighteen extraneous robberies. The State only introduced this evidence after appellant attempted to offer "mitigating" evidence that he only participated in the charged robberies because of his drug habit, claiming he was so high during those robberies that he could not recall their details. We conclude evidence that appellant was able to recall specific details of eighteen other robberies was relevant to appellant's punishment. We overrule appellant's first point of error. In his second point of error, appellant contends the probative value of the extraneous offense evidence was substantially outweighed by the danger of unfair prejudice. At trial, appellant objected to admission of the extraneous robberies under rule 403 of the rules of evidence. Under rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403; Davis, 68 S.W.3d at 283. As used in rule 403, "unfair prejudice" means the undue tendency of the evidence to suggest a decision on an improper basis. Davis, 68 S.W.3d at 283. The trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002). These factors include: (1) the inherent probative value of the evidence, (2) the strength of the evidence to show the defendant in fact committed the extraneous conduct, (3) the potential of the extraneous conduct to impress the jury in some irrational but nevertheless indelible way, (4) the amount of trial time needed to develop the evidence such that the jury's attention is diverted from the charged offense, and (5) how great the proponent's need for the evidence. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1991) (op. on reh'g); Beasley v. State, 838 S.W.2d 695, 702 (Tex.App.-Dallas 1992, pet. ref'd). After reviewing the record, and bearing in mind the issue before the jury was punishment, not guilt/innocence, we conclude the trial court did not abuse its discretion in admitting the evidence. We begin by noting that the probative value of the evidence was substantial with respect to an appropriate sentence. The evidence was also probative of whether appellant had misled the jury concerning the connection between his drug use and the robberies. Further, the State's evidence to show appellant committed the extraneous offenses was reliable, consisting of appellant's own admission. Although the number of extraneous offenses that appellant committed was substantial, the State provided no details regarding the offenses such that the jury might be unduly inflamed. Moreover, the State used little time to develop the evidence thereby reducing the danger the jury would be diverted from the relevant issues. Finally, the State "needed" the evidence to assist the fact finder in determining an appropriate sentence and to counter appellant's mitigating evidence. After reviewing all the relevant factors, we cannot conclude the trial court abused its discretion in overruling appellant's rule 403 objection. We overrule appellant's second point of error. We affirm the trial court's judgments.
Because the jury is not deciding a discrete factual issue at punishment, it is difficult to evaluate the State's "need" for punishment evidence.