Opinion
No. 11-08-00213-CR
Opinion filed December 18, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 266th District Court Erath County, Texas, Trial Court Cause No. CR13009.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted James Leonard Phegley of burglary of a building. The trial court assessed his punishment at confinement for two years in a state jail facility. We affirm. There is no challenge to the sufficiency of the evidence. The jury found appellant guilty of the April 14, 2008 burglary of the laundromat in the Texan Village, an apartment complex owned and operated by Tarleton State University. Toby Christopher Silvertooth testified that he was doing his laundry about 11:15 p.m. when he saw two men in the laundromat area. One man was standing in the doorway while the other was leaning up against a dryer. Silvertooth was suspicious because the men appeared to be about twenty-six years old and "kind of looked rough" and because "something just didn't feel right." Silvertooth was a resident leader for the complex and did not recognize the two men as residents of the university-owned complex. Silvertooth returned about midnight to find that the coin box on the dryer unit had been pried open and all of the money removed. Silvertooth called the police and the resident coordinator. At trial, Silvertooth testified that he was "reasonably certain" that appellant was one of the two men he saw that night. Carol Sue Williams testified that she was appellant's former girlfriend. Williams stated that she saw appellant and Christopher Rowe "running around late [that] night, coming in with money from nowhere." Williams testified that the money was quarters and not bills. Gary Lockie Stout, the facility supervisor for the Tarleton State University campus housing units, testified that appellant and Rowe were not students, residents, or employees of the university. In his sole issue on appeal, appellant complains that the trial court erred by admitting evidence of an extraneous offense during the guilt/innocence phase of the trial. Specifically, appellant complains of Arlington Police Officer Gretchen Weller's testimony concerning her May 3, 2008 investigation of a nighttime burglary of a coin-operated machine in an Arlington apartment complex. Appellant contends that only his innocence and not his identity was in issue and that, therefore, this testimony was not admissible under TEX. R. EVID. 403 and 404(b). After a hearing outside the presence of the jury, the trial court concluded that appellant had opened the door to the issue of identity in his opening statement, that the charged offense and the extraneous offense were "almost identical," that the evidence went to show modus operandi and identity, and that the probative value of the extraneous offense outweighed its inflammatory effect. Officer Weller then proceeded to testify to the jury that she saw appellant using a screwdriver to try to break off the outside bracket of the machine to gain access to the money while Rowe held a flashlight. The trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1991). The trial court's decision will be affirmed by the appellate court when that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438. Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of showing that the person acted in conformity therewith. Rule 404(b); Montgomery, 810 S.W.2d at 386-88. However, this evidence may be admissible when it is relevant to a "noncharacter conformity fact of consequence in the case," such as intent, motive, identity, opportunity, preparation, plan, knowledge, or absence of mistake or accident. Powell, 63 S.W.3d at 438; see Rule 404(b); Montgomery, 810 S.W.2d at 387-88. Evidence of extraneous offenses or prior bad acts may also be admissible to rebut a defensive theory. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). Admissibility of evidence hinges on the relevancy of the evidence to a "fact of consequence" in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). Other crimes, wrongs, or bad acts have noncharacter conformity relevance where it logically serves to make less probable defensive evidence that undermines an elemental fact. Powell, 63 S.W.3d at 438. Even if evidence is admissible under Rule 404(b), the trial court may exclude it if it determines that the probative value of such evidence is substantially outweighed by its unfair prejudice. Rule 403. In determining whether the probative value of evidence of an extraneous offense is outweighed by its prejudicial effect, we look to (1) how compellingly the evidence serves to make a fact of consequence more or less probable, (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way, (3) the time the State will need to develop the evidence, and (4) the force of the State's need for the evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Montgomery, 810 S.W.2d at 389-90; Rickerson v. State 138 S.W.3d 528, 532 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, when the record reveals that one or more such relevant criteria reasonably contribute to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, the evidence should not be admitted. Montgomery, 810 S.W.2d at 392-93. We find that the trial court did not abuse its discretion. In his opening argument, appellant's counsel told the jury that it would not "see any fingerprint evidence," would not "see any videotape evidence," would not "see or hear of any confessions," and would not hear any "smoking gun evidence" such as appellant was arrested with a bag of quarters. When Silvertooth first equivocated on direct concerning his in-court identification of appellant, appellant's counsel thoroughly questioned Silvertooth on cross and on recross concerning appellant's identity. Moreover, the similarities between the late night burglary of the dryer coin box at the university apartment complex and the late night attempted burglary less than a month later of the coin-operated machine in the Arlington apartment complex by the same two men are substantial. The trial court could have reasonably concluded that Officer Weller's testimony was relevant as to such noncharacter issues as intent, motive, identity, opportunity, preparation, plan, knowledge, or absence of mistake or accident and that the probative value of the evidence outweighed any prejudicial effect. The issue is overruled. The judgment of the trial court is affirmed.