Opinion
No. 05-04-00419-CR
Opinion Filed July 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA03-43967-N. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted Kenny Iroegbu of assaulting his wife, Daniela Iroegbu. The trial court assessed punishment at one year's imprisonment, probated for two years, and a six hundred dollar fine. Iroegbu appeals. In two points of error, Iroegbu asserts the trial court erred in allowing the State to introduce evidence of an unadjudicated extraneous offense-a videotape of Iroegbu admitting a previous assault on his wife. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. The State contended that Iroegbu assaulted Daniela by pushing her against a wall, hitting her, and kicking her. The record contains evidence that Daniela spent the earlier part of the evening at Julie Byrne's, a friend, apartment watching television, drinking beer, and smoking. Before returning to her apartment, Daniela asked Byrne to call her when she got home. When Byrne called, Iroegbu answered and told her to come over. When she arrived, Bryne saw Daniela sitting on a mattress, bleeding from the head, and crying. Iroegbu questioned Byrne about Daniela's activities that evening, and then he left the apartment. Daniela, her son, and Bryne went to Bryne's apartment where Bryne called the police and witnessed Daniela's statements to the officer. Daniela reported Iroegbu hit and kicked her because of her activities earlier in the night. At a pretrial hearing, Daniela testified Iroegbu did not touch her; instead she fell and hit her head on a cupboard. To rebut this defensive theory, the State indicated that it intended to introduce the videotaped statement by Iroegbu, made in Germany approximately ten years before trial. In this statement, Iroegbu admitted to physically harming Daniela in Germany. The State argued the statement was admissible in order to rebut the defensive theory that Daniela's injuries were the result of an accident and not an assault because Daniela recanted her previous statement and now denied that Iroegbu ever hit and kicked her. Iroegbu objected, but the trial court overruled Iroegbu's objections. At trial, Daniela was called by the defense and denied the assault. She testified the injury occurred as the result of an accident. When Iroegbu testified that he did not touch Daniela, the State introduced the videotaped statement to demonstrate the absence of mistake or accident in the underlying case under Rule 404(b). The trial court instructed the jury the evidence was for the sole purpose of aiding the jury in determining "whether the current offense of assault was committed absent of mistake or accident." The court further instructed the jury not to consider the extraneous offense evidence for any purpose unless it determined beyond a reasonable doubt that Iroegbu committed the other act. In two points of error, Iroegbu contends the trial court erred in admitting evidence of an extraneous assault offense under Tex. R. Evid. 403 and 404(b). He argues the trial court erroneously admitted the evidence because he did not raise the defense of accident, as the State claims. However, if relevant to rebut a claim of accident, Iroegbu asserts the danger of unfair prejudice far outweighed the probative value of the evidence. The admission or exclusion of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378-379 (Tex.Crim.App. 1990); Riney v. State, 60 S.W.3d 386, 388 (Tex.App.-Dallas 2001, no pet.). Absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. Riney, 60 S.W.3d at 388. As long as the trial court's ruling was "within the zone of reasonable disagreement," there is no abuse of discretion, and we must uphold the trial court's ruling. Montgomery, 810 S.W.2d at 391 (op. on reh'g). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). Nevertheless, such evidence may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or absence of mistake or accident. See id. On proper objection, once the trial court decides the evidence is relevant and falls within a permissible exception under Rule 404(b), the trial court must decide if its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403. See Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 387. A presumption exists that favors the evidence's probative value. Id. at 389. Daniela's testimony denying that Iroegbu touched her raised the issue of accident. Her testimony on behalf of the defense was an attempt to show the injury was caused by an accident not the intentional actions of Iroegbu. Because Iroegbu went beyond the normal not guilty plea to assert a defensive theory of accident, the videotaped statement is relevant for the purpose of showing the absence of accident. See Robbins v. State, 88 S.W.3d 256, 262 (Tex.Crim.App. 2002). Because the extraneous offense evidence logically makes the defensive theory of accident less probable, the videotape is relevant. See Montgomery, 810 S.W.2d at 387. Thus, the trial court did not abuse its discretion by deciding the evidence was relevant to rebut the defensive theory of accident. See Robbins, 88 S.W.3d at 262. In weighing the value of the evidence under Rule 403, the trial court decided that the probative value of the extraneous offense evidence was not substantially outweighed by the danger of unfair prejudice. Id. The evidence was compelling to rebut the defensive theory asserted by Daniela's testimony, the trial court provided jury instructions to ensure the jury limited the use of the extraneous offense evidence, and the State did not require a large portion of time to develop the evidence. See Manning v. State, 114 S.W.3d 922, 927-928 (Tex.Crim.App. 2003); see also Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). After considering these factors, we conclude the trial court's decision to admit the evidence of the extraneous offense is within the zone of reasonable disagreement; therefore, the trial court did not abuse its discretion. Moreno v. State, 22 S.W.3d 482, 487 (Tex.Crim.App. 1999). We overrule Iroegbu's points of error. We affirm the judgment of the trial court.