Opinion
No. 10-05-00068-CR
Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.
Appeal from the Criminal District Court No. 4, Tarrant County, Texas, Trial Court No. 0688581AR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Carlis Jovonite Russell of capital murder. Because the State did not seek the death penalty, the court sentenced him to life imprisonment. Russell contends in his sole point that the court abused its discretion by admitting evidence of an extraneous offense. We will affirm.
Background
According to the evidence, Russell and two other men forced their way into the home of Shameka Rice in the early morning hours of the date in question. They were looking for Myron Nash. Rice told them that Nash was not there and did not live there. The men took turns sexually assaulting Rice at gunpoint as they did her roommate Cheron Hill. They forced Hill to crawl to another room. The men searched the house and complained about not being able to find money or drugs. After Rice heard a gunshot from the other room, she heard Hill scream. Rice then heard another gunshot, and Hill was silent. Shortly thereafter, one of the intruders shot Rice in the stomach, then in the back. Rice feigned death at that point. She heard the screen door shut, waited a few moments, and then found a telephone and called 9-1-1. The extraneous offense at issue is a burglary which Russell committed with Myron Nash and another man, Tonero Rainey, two days before the capital murder. Myron "had had a falling out" with his cousin Jewel Landers, with whom Myron was involved in various criminal enterprises. Russell, Myron, and Rainey went to burglarize Landers's home. When Landers's daughter unexpectedly answered the door, the men forced their way into the house at gunpoint. They stole a safe, a number of guns and rifles, and other firearm accessories. Russell, Myron, Rainey, and Myron's half-brother Chris went to Rice's home that afternoon to hide the items they had stolen from Landers. A few hours later, a police officer went to Rice's home, acting on a tip that certain stolen property was there. Rice consented to the officer's search of her home. The officer documented the presence of the items left at Rice's home by Russell and the others but did not remove these items. Rice then tried to contact Myron and tell him to remove the stolen property from her house. She eventually made contact through Chris. Apparently, Myron and others removed the stolen property from Rice's house "late in the evening" and unbeknownst to Russell. Russell was enraged when he discovered that Myron had removed the stolen property from Rice's home. Russell went to find Myron, who apparently had gone into hiding. Russell's search eventually led him to Rice's home.Extraneous Offense
Russell contends in his sole point that the court abused its discretion by admitting evidence regarding the burglary of Landers's home. The State responds that the evidence is admissible to show motive and/or identity. Rule of Evidence 404(b) permits the admission of evidence of extraneous conduct to prove motive and identity. Evidence of motive is always relevant and admissible to prove that a defendant committed the offense alleged. Crane v. State, 786 S.W.2d 338, 349-50 (Tex.Crim.App. 1990); Powell v. State, 151 S.W.3d 646, 650 (Tex.App.-Waco 2004, pet. granted); Abshire v. State, 62 S.W.3d 857, 865 (Tex.App.-Texarkana 2001, pet. ref'd). "A previous difficulty between the defendant and a third party may be proved if it led up to the charged offense, or involved the victim in any way, or tended to reveal the defendant's motive or state of mind." Ingham v. State, 679 S.W.2d 503, 506 (Tex.Crim.App. 1984) (emphasis added). The State argues that the evidence regarding the burglary of Landers's home explains Russell's "motive to invade Rice's house armed and wearing a mask; it was not only a location where [Russell] believed [Myron] might be hiding, but by `hitting a lick' there he would be striking at [Myron] through someone who had aided [Myron] in the Landers robbery." Thus, the State essentially contends that the challenged evidence is relevant to show that Russell and his accomplices sexually assaulted Rice and Hill and murdered Hill to get revenge against Myron. In light of the rule stated in Ingham, we cannot say that the court abused its discretion by concluding that the challenged evidence is relevant to the issue of motive. See Ingham, 679 S.W.2d at 505-07.Unfair Prejudice
Even if this evidence is relevant however, Russell contends that its probative value is substantially outweighed by the danger of unfair prejudice. To evaluate this claim, we consider:• how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
• the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";
• the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
• the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003). We must give appropriate deference to the trial court's determination that the probative value of the evidence in question is not substantially outweighed by the danger of unfair prejudice. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). We should reverse such a determination "rarely and only after a clear abuse of discretion." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 392 (Tex.Crim.App. 1991)). The evidence presented convincingly establishes that Russell participated in the burglary of Landers's home and helped transport the stolen property to Rice's home. The evidence also establishes that Myron later moved the stolen property from Rice's home to another location without Russell's participation or knowledge and that Russell was seeking revenge against Myron because of this perceived "double-cross." Because the extraneous offense involves a property crime rather than assaultive conduct, the evidence offered to prove the extraneous offense posed a slight potential to influence the jury in an irrational manner. See Manning, 114 S.W.3d at 928; Booker v. State, 103 S.W.3d 521, 535-36 (Tex.App.-Fort Worth 2003, pet. ref'd). The State used a significant amount of time at trial proving up the extraneous offense. In fact, the State began with the evidence pertaining to the extraneous offense before offering evidence directly relevant to the charged offense. Therefore, the third factor weighs in favor of the exclusion of the evidence. See Russell v. State, 113 S.W.3d 530, 545-46 (Tex.App.-Fort Worth 2003, pet. ref'd). The State suggests that the fourth factor (its need for the challenged evidence) favors admissibility because the State had virtually no other evidence to establish Russell's motive or the depth of his anger toward Myron. However, "motive" is not an element of the offense. As the prosecutor stated in closing argument, the testimony of Russell's accomplice and of Rice "would be enough for [the jury] to convict." Therefore, the fourth factor weighs in favor of the exclusion of the evidence. Id. at 548-49. Because the relevant factors weigh relatively evenly in favor of and against the admission of the challenged evidence, we cannot say that the court abused its discretion by concluding that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Accordingly, we overrule Russell's sole point and affirm the judgment.