No. 05-09-00357-CR
Opinion Filed June 21, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 058078.
Before Justices RICHTER, MURPHY, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Appellant Mark Anthony Chamberlain appeals his conviction for aggravated robbery arguing that the trial court erred by admitting extraneous-offense evidence in violation of Texas Rules of Evidence 404(b) and 403. We affirm.
Background
Appellant and his co-defendant, Darron Barnum, were indicted for the aggravated robbery of Jodi Harris in Sherman, Texas. Appellant pleaded not guilty and his case was tried before a jury. Barnum pleaded guilty and testified for the State at appellant's trial, along with several other witnesses. On the night of the offense, appellant and Barnum smoked crack cocaine and needed money to buy more drugs. At approximately 10:30 p.m. they stopped at Barnum's aunt's house and Barnum entered the house and stole a wallet. A few minutes later they were driving around when they spotted two women walking on the side of the road. Appellant said, "there goes a lick," meaning the women were "easy prey." Barnum got out of the car, ran down the street to where the women were walking, and snatched their purses at knifepoint. He ran a few blocks to where appellant was waiting in the car. The pair then went back to appellant's house, took all of the cash out of the purses, and left the purses in appellant's shed. They drove to Denison, Texas, bought more crack cocaine, and got high. Around 2:00 a.m. they went to a convenience store. Barnum entered the convenience store and went to use the restroom. While Barnum was in the restroom, appellant entered the store, bought some chips, and returned to the car. After exiting the restroom, Barnum approached the cashier, stole the money out of the cash register, and left the store. Appellant and Barnum then drove to Dallas and used the money to buy more drugs. Jodi Harris and her niece identified Barnum as the man that pulled a knife on them and stole their purses. Barnum's aunt and other witnesses testified that Barnum stole the wallet from his aunt's house, and that the wallet and purses were found the next day in appellant's shed. Barnum testified that he turned himself in to police, pleaded guilty to robbing Harris and the convenience store, and was sentenced to twenty years in prison for each of those offenses. Barnum also testified that no one promised him anything specific, including that his sentence would be reduced, in return for his testimony against appellant. Appellant did not testify at his trial, but his defensive theory was apparently that he was not involved in the aggravated robbery of Harris and her niece, and that in order to prevent Barnum from returning to prison, Barnum's family framed appellant by planting the purses in appellant's shed. Before trial began, appellant made an oral motion in limine regarding extraneous offenses, and the State agreed. As a result, during trial but before the State offered any evidence of the convenience-store robbery, the trial court held a hearing outside the presence of the jury to determine the admissibility of that evidence. The trial court initially sustained appellant's objections under rules of evidence 404(b) and 403 and refused to allow the State to introduce any evidence of the convenience-store robbery. Later during trial, after appellant's counsel's cross-examination questions of multiple witnesses continued to imply that appellant was not involved in the robbery of Jodi Harris and her niece, the parties approached the bench again and the State re-urged its request to introduce evidence of the convenience-store robbery, including testimony about that robbery and a videotape from the store's surveillance camera showing the robbery. The trial court conducted a second hearing outside the presence of the jury. At the conclusion of that hearing, the trial court ruled that the evidence of the convenience-store robbery was admissible to rebut appellant's defensive theory that he was not involved in the robbery of Harris and her niece. The trial court also agreed to include a limiting instruction in the jury charge. After the trial court's ruling, Barnum and other witnesses testified that Barnum robbed the convenience store, and the videotape from the store's surveillance camera was introduced into evidence and played for the jury. After the close of the evidence, the trial court instructed the jury that it could convict appellant of the aggravated robbery of Jodi Harris as a party to the offense. The jury found appellant guilty of the aggravated robbery of Jodi Harris and assessed punishment, enhanced by prior felony convictions, at 30 years in prison. On appeal, appellant argues that the trial court erred when it overruled his objections under rules of evidence 404(b) and 403 and allowed the State to present evidence of Barnum's robbery of the convenience store. Applicable Law and Standard of Review
Under rule of evidence 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; but it 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); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh'g). Even if the evidence is admissible under rule 404(b), it may still be excluded under rule 403 if the trial court determines that its probative value is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 387. "The term `probative value' refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). "`Unfair prejudice' refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. We review the trial court's decision to admit evidence under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). Analysis
Was the evidence of the convenience-store robbery admissible under rule 404(b)? In his first issue, appellant argues that the evidence of Barnum's robbery of the convenience store was not admissible under rule 404(b) because it "does not logically rebut any perceived defensive theories." We disagree. The trial court could have reasonably concluded that the evidence of the convenience-store robbery rebutted appellant's defensive theory that he was not with Barnum at the time of the aggravated robbery of Harris and her niece because it corroborated Barnum's testimony that he and appellant were together the entire night. As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection under rule 404(b). See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, No. 09-9635, 2010 WL 978827 (June 14, 2010) ("Rebuttal of a defensive theory is also one of the permissible purposes for which evidence may be admitted under Rule 404(b)."). We overrule appellant's first issue. Was the evidence of the convenience-store robbery admissible under rule 403? Under rule of evidence 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). In its rule 403 analysis, the trial court must balance the inherent probative force of the proffered evidence and the proponent's need for that evidence against competing factors including (1) any tendency of the evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In his second issue, appellant argues that the evidence of the convenience-store robbery was inadmissible under rule 403 because the probative value of that evidence was substantially outweighed by the danger of unfair prejudice, and because "a third party's extraneous conduct, particularly when it involves a robbery, tends to encourage a fact[-]finder to make a decision on an improper basis." We disagree. As to the first two factors relevant to the trial court's rule 403 analysis, we cannot conclude that the evidence of the convenience-store robbery lacked inherent probative force, or that there was no need for the evidence. Appellant concedes on appeal that the disputed issue at trial was whether appellant was with Barnum when Barnum committed the aggravated robbery of Harris and her niece. The evidence of the convenience-store robbery a few hours after that offense corroborated Barnum's testimony that he and appellant were together the whole night. As to the competing factors, we note that appellant does not contend that the evidence of the convenience-store robbery consumed an inordinate amount of time. And particularly in light of the fact that the purses were found in appellant's shed, we cannot conclude that the jury was confused or distracted by the evidence of the convenience-store robbery, or that the jury gave undue weight to that evidence or reached its decision in this case on an improper basis. Additionally, the jury charge included a limiting instruction, which minimized any potential for improper influence on the jury. See Chaddock v. State, 203 S.W.3d 916, 924 (Tex. App.-Dallas 2006, no pet.). As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection under rule 403. We resolve appellant's second issue against him. Conclusion
We resolve appellant's two issues against him and affirm the trial court's judgment.