No. 05-04-01599-CR
Opinion Filed July 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22670-422. Affirmed.
Before Justices MOSELEY, FRANCIS, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FRANCES MALONEY, Justice, Assigned.
A jury convicted Steven Diajanone Jones of attempted capital murder and assessed a ninety-nine-year sentence and $10,000 fine. In a sole point of error, appellant contends the trial court erred in admitting evidence of the numerous weapons found at the scene of appellant's arrest. We affirm the trial court's judgment.
BACKGROUND
Kevin Garvin, a Kaufman County Constable, stopped a gray Ford Excursion because it had paper dealer's plates, no inspection sticker, and no registration sticker. He left his red and blue flashing lights on as he approached the Excursion. When Garvin reached the driver's door and asked for appellant for his license and insurance, appellant shot him in the right check and lower left abdomen. Garvin fell to the ground in the highway lane and appellant took off at a high speed in the Excursion. Just before the voir dire of the jury, the trial court began the hearing on all pretrial motions, including the motions to suppress appellant's statement and all tangible evidence. The trial court recessed the pretrial hearing and began voir dire. After concluding voir dire, but before seating the jury, the trial court reconvened the pretrial hearing and heard appellant's testimony and arguments. The trial court denied the motions to suppress appellant's statements, tangible evidence, any items retrieved from the Excursion, the computer seized under the search warrant, and photo lineups. Only Richard Shing, a Texas Department of Safety Ranger testified to the weapons found at the scene of appellant's arrest. Jolie Stewart, a Kaufman County Sheriff, testified to the circumstances surrounding appellant's written confession. THE EVIDENCE
1. Shing's Testimony At the pretrial hearing, Shing testified that Stewart telephoned him to come to Mary Estrada's apartment where they had located appellant. Although Estrada was the only one on the lease, she and appellant "shared" the apartment. Apparently, appellant stayed there despite Estrada saying appellant was only there "occasionally." Shing talked with Estrada in the manager's office, and she gave him consent to search her apartment. During the search, Shing found the weapons that are the subject of this appeal. Shing testified to the weapons he found as follows: There was a large amount of ammunition, firearms, assault type rifles, high caliber rifles, 223, M16, AR15 type weapons, several handguns, a couple [sic] pump shotguns, one kind of pistol grip shotgun, backpacks, smoke grenades, bulletproof vests, black fatigues, boots in [appellant's] size, duct tape, things that might be used in other criminal offenses.
Appellant's statement acknowledged that the bulletproof vest belong to him. At trial, Shing testified to finding a "large cache of weapons" in the master bedroom. He inventoried an AR15; a "military type rifle;" two pump shotguns, one of which had its stock removed; a .45-caliber handgun; a .389-caliber handgun; and the 9-millimeter handgun. It is this trial testimony about which appellant complains. 2. Appellant's Testimony
Although appellant did not testify at trial, he did testify at the pretrial hearing to the facts surrounding the taking of his confession. The trial court overruled appellant's motion to suppress his statement and admitted appellant's confession before the jury. In his confession, appellant stated that he only wanted to knock the officer down by "tag[ging] him in his chest." Additionally, his statement recites, "I don't remember the first round at the officer, the second round was an accidental discharge." EXTRANEOUS OFFENSES
In a single point of error, appellant argues the trial court abused its discretion in admitting Shing's testimony of the numerous weapons found in the apartment where the police arrested appellant. He maintains that the State only offered the evidence to show appellant "acted in conformity therewith[.]" The State responds that the "cache of assault weapons . . . was relevant and admissible because it indicated an unusual preoccupation and expertise with assault" to rebut appellant's testimony that he did not intend to kill the officer. The State also claims that at pretrial, appellant did not object to Shing's testifying about "a large cache of weapons found in the master bedroom area." Although appellant did not object to this testimony at the pretrial hearing, he did timely object to the testimony at trial. Moreover, our reading of the record shows that appellant made the two-pronged objection required to preserve error. See Montgomery v. State, 810 S.W.2d 372, 387-89 (Tex.Crim.App. 1991) (op. on reh'g). 1. Standard of Review
We review the trial court's decision to admit evidence under an abuse of discretion standard. See Montgomery 810 S.W.2d at 391. As required by rule 404, the trial court determines whether the evidence has relevance apart from character conformity. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). We defer to the trial court's finding that the evidence's probative value was not outweighed by the danger of unfair prejudice and do not reverse a trial court's ruling if it was within the zone of reasonable disagreement. See id. (citing Montgomery, 810 S.W.2d at 392). Rather, we reverse the trial court's judgment "rarely and only after a clear abuse of discretion" and not on our independent judgment whether unfair prejudice resulted from the trial court's admitting evidence of other wrongs. See id. 2. Applicable Law
If evidence makes the existence of a fact that is of consequence to the determination of the action more probable than it would be without the evidence, then, that evidence is relevant. See Tex. R. Evid. 401; Robles v. State, 85 S.W.3d 211, 213 (Tex.Crim.App. 2002). All relevant evidence is admissible except as otherwise provided by the Constitution, statutes, and rules. See Tex. R. Evid. 402. But, evidence of other crimes, wrongs, or acts must have relevance apart from character conformity. See Tex. R. Evid. 404(b). Such evidence may become admissible when offered to show identity, intent, motive, opportunity, or preparation. See id.; Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1998) (op. on reh'g) (citing Montgomery, 810 S.W.2d at 387-88). Relevant evidence is also admissible to refute the defensive theory of mistake or accident. See Tex. R. Evid. 404(b). If the defendant claims he committed the charged act by accident or mistake, evidence that shows the alleged act was not accidental or done by mistake becomes admissible. See Deleon v. State, 77 S.W.3d 300, 313 (Tex.App.-Austin 2001, pet. ref'd). 3. Application of Law to Facts
The indictment charged appellant with Attempted Capital Murder-alleging the specific intent to commit capital murder. In his confession, appellant not only denied he intended to kill Garvin but also affirmatively stated he only wanted to knock Garvin down and that he accidently fired the second shot. Consequently, the evidence of the amount and type of weapons showed it was more probable than not that appellant was familiar with weapons and practiced in the use of sophisticated weaponry. Thus, the evidence was relevant to refute appellant's claim of accident. Appellant never argues on appeal how this evidence was more prejudicial than probative. Nor can we conclude the evidence was more prejudicial than probative. Therefore, the trial court did not abuse its discretion in admitting the evidence of the cache of weapons. We resolve appellant's issue against him and affirm the trial court's judgment.