No. 05-09-00713-CR
Opinion issued August 18, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-57846-XWN.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice MORRIS.
A jury convicted Melvin Wayne Richardson of aggravated assault with a deadly weapon. In two issues, appellant challenges the relevance of certain evidence admitted by the trial court and asserts the evidence's probative value was outweighed by its prejudicial effect. For the reasons that follow, we affirm the trial court's judgment.
Factual Background
On October 10, 2007, Corporal Bradford Davis, a covert officer with the Dallas Police Department, was doing surveillance in plain clothes and a white Ford Explorer. He received a radio report that two black males had burglarized a strip center in the 2900 block of East Kiest Boulevard and had crossed the street to an apartment complex. Davis drove to and through the apartment complex to see if he could locate the suspects before marked police cars arrived. A lone black male approached his vehicle, tried to open the door, and ordered Davis out of the vehicle. Davis refused, pointed his gun at the man, and told him to get away from the car. The man then took off running through the apartment complex. After the marked police cars arrived, an officer told Davis some of the individuals they spoke to thought Davis was one of the burglars. Davis then drove away from the apartment complex and traveled about five miles to an intersection. There, he noticed a small SUV pull up next to his vehicle. The male driver was on a cell phone and looking at Davis. It was about two or three o'clock in the morning. The vehicle continued to follow Davis when he turned west onto Morgan Drive. Davis heard shots being fired, saw a bullet hit the pavement, and realized he was being shot at. He radioed the police dispatcher. The SUV was eventually stopped by patrol officers in marked vehicles. Appellant was identified as the driver of the SUV. At the time of his arrest, appellant indicated that he thought Davis was a burglar of the strip mall. The officers recovered a gun from the SUV and nine shell casings on the SUV's windshield. Kendra West, appellant's ex-girlfriend, was a passenger in the SUV at the time it was stopped by the police. She stated she arrived at the apartment complex that night to pick up appellant. A neighbor had told them someone had tried to break into appellant's aunt's shop at the strip mall. West and appellant then saw a black man standing near the shop and watched as he ran across the street to the apartment complex. They saw a black man wearing similar clothes leaving the complex in a vehicle, and she and appellant followed it in West's SUV. When they caught up to the vehicle, West told appellant "it wasn't him." But appellant continued to follow the vehicle. He eventually retrieved a gun from under the seat and started shooting out the window with his left hand. Crime scene detective Junius Rucker also testified. In addition to finding the shell casings on the SUV windshield, he found matching casings in front of 2546 and 2607 Morgan Drive. He also noticed a bullet hole on the eastside exterior wall of 2546 Morgan Drive. Inside the house, he discovered a bullet hole in the headboard of a bed on the east side of the house. The bullet entered the headboard, struck a book, hit the corner of a dresser, ricocheted off the wall, and went into the hallway, leaving a bullet hole in the wall. The bullet was not recovered. Shirley McLemore was sleeping in her bed at 2546 Morgan Drive when she was awakened by a "loud pop." She noticed a book, previously on the headboard, now on the floor with a hole in it. She heard other shots and saw the bullet hole in the headboard a few inches above where she was sleeping. She also noticed a nick in her dresser. She called the police. Discussion
On appeal, appellant asserts in two issues that the trial court erred in admitting all the evidence about the bullet damage to the interior of the home at 2546 Morgan Drive because it was irrelevant and more prejudicial than probative. A trial court's decision to admit evidence is reviewed on appeal for an abuse of discretion. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. We review the trial court's ruling in light of the evidence that was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Rule 402 provides that all relevant evidence is admissible except as otherwise provided by other authority not applicable here. See Tex. R. Evid. 402. Relevant evidence is anything tending to make the existence of any fact that is of consequence to the determination of the case more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Appellant argues that the evidence concerning damage to the interior of 2546 Morgan Drive was irrelevant because appellant was charged with aggravated assault against Davis and not McLemore. Moreover, he contends the entry and trajectory of the bullet into and within the house was not relevant under any theory of the case. The State counters that this evidence was relevant to rebut appellant's theory, espoused in opening arguments, that appellant merely fired the gun into the air to deter and stop Davis, whom he believed burglarized his aunt's shop. We agree with the State. Here, the direction, and number of shots fired, as well as the trajectory of the bullets, were all relevant to negate the defense's theory that appellant fired a few shots in the air to stop a man whom he believed to be a burglar. Consequently, we cannot conclude the evidence was irrelevant. We resolve appellant's first issue against him. Appellant further contends that even if the evidence was relevant, the prejudicial effect of the evidence outweighed any probative value. See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990). Under Rule 403, the trial court considers the probative value and the need of the evidence against its tendency to (1) suggest decision on an improper basis, (2) confuse or distract the jury from the main issues, (3) be given undue weight by the jury, and (4) consume an inordinate amount of time or be cumulative of evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). We should reverse the trial court's Rule 403 determination "rarely and only after a clear abuse of discretion." Montgomery, 810 S.W.2d at 392. We have already determined the evidence in question was relevant and necessary to negate a key defensive theory on appellant's intent. Moreover, we cannot conclude the testimony and photographs in question were particularly inflammatory or of such a nature as to distract, confuse, or be given undue weight by the jury. Finally, the evidence complained of did not take a lot of time to develop nor was it cumulative of other evidence. Accordingly, the trial court did not abuse its discretion in concluding the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. We resolve appellant's second issue against him. Having resolved appellant's two issues against him, we affirm the trial court's judgment.