No. 04-03-00216-CR
Delivered and Filed: February 23, 2005. DO NOT PUBLISH.
Appeal from the 341st Judicial District Court, Webb County, Texas, Trial Court No. 2002-Crn-000663-D-3, Honorable Elma Salinas Ender, Judge Presiding. Reversed and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Aaron Andrew Webb appeals the judgment convicting him of the murder of Consuelo Morales and sentencing him to ninety-nine years in prison. We hold the trial court committed reversible error in admitting the testimony of Angelica Dominguez regarding an encounter she had with Webb approximately one month before Morales' murder and therefore reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
Factual and Procedural Background
On March 22, 2002, Consuelo Morales was found dead in her bedroom. Consuelo's next-door neighbor, Aaron Andrew Webb, was charged by indictment with the murder. During the ensuing trial, the trial court admitted the following testimony of Angelica Dominguez regarding an encounter she had with Webb while she was working as a convenience store clerk: Q: Did anything unusual happened [sic] on February 9, 2002?
A: Yes.
Q: And what was that?
A: (Through the Interpreter) That day I started working at 11 — about 4:30, five o'clock in the morning. He went in to buy his cigarettes.
Q: Who entered?
A: Aaron.
Q: Aaron? Aaron Webb?
A: Um-huh. Then he asked me for a dollar of change of quarters so he [could] use the phone.
Q: And what happened next?
A: Then he came back and bought some Cheetos. . . . And then I told him, I have a quarter to give you. And I gave it to him and I smiled at him. And then afterwards, he walked outside. Then I picked up the phone because I used to talk a lot with my friends from the other store. Then he knocked through the window.
Q: Who knocked through the window? Who knocked at the window?
A: Aaron.
. . . .
Q: And then what happened after he knocked on the window?
A: (Through the Interpreter) Then I saw that he was grabbing his private parts. And then he walked inside. Then he asked me if I could stand up so he could see me better and I asked him why. Then he asked me if I could go outside so I could — Then, he did something ugly with his mouth.
Q: Ma'am, could you show the jury what kind of — what — Could you just show they jury what he did with his mouth?
A: . . . He wanted me to do like a blow job. And then I told him that I wouldn't and I sat on the corner to continue talking. Then he said, With who are you talking? I said, Why? And then he says, Are you talking to your boyfriend? Then I said, Yes. And even though it wasn't true and I was telling my friend if he was listening to what he was saying. Then he said that he was my friend. And then he said, Come on, let's go outside.
Q: Who said, Come on, let's go outside?
A: Aaron. . . . . And I said no and he walked out. . . . . He went outside. And then again, he knocked on the glass window . . . and he was getting his private part again. And then he went inside again and told me to please go outside so that I could do that with my mouth on him.
. . . .
Q: When you are using the word private part, what are you talking about when you say private part?
A: His penis. . . . . And then when I didn't pay any attention to him and he went outside and he was still standing up outside. And then that's when my friend called the police over. And they came over around 10 or 15 minutes afterwards. And that's when they came over and they ran him away.
. . . .
Q: And then what happened next?
A: And then afterwards in 10 or 15 minutes, I turned around and he was there.
Q: Who was there?
A: Aaron.
. . . .
A: He was outside. . . . . He came inside and he gave me — he apologized and asked me did I frighten you. And I told him yes. And then he said forgive me. And [I] said, I'm going [to] wait till they pick me up. And then that's when my supervisor arrived and also the police . . . and he left. He ran away. And that's it.
Before Dominguez testified, the court held a hearing outside the presence of the jury to determine whether the testimony would be admitted. Webb argued that the evidence was immaterial and its prejudicial effect would outweigh its probative value. The State explained that it would be offering the testimony to establish Webb's identity and motive for committing the charged offense — sexual assault. The trial court overruled Webb's objection, stating "[t]he record will reflect that we have found that the evidence is relevant [and will] help the trier of fact and that we've conducted a balancing test and feel that the probative nature of the events — that the probative nature of the events outweighs any possibility of prejudice." After Dominguez testified, Webb's request for a limiting instruction was granted; the trial court instructed the jury as follows: Ladies and gentlemen, the — the testimony of Angelica Dominguez should not be considered by you as evidence of or proof of the offense that Mr. Aaron Webb is on trial for today. It is being offered by the State solely for the purposes of showing proof of motive or identity.
Ladies and gentlemen, you are instructed that you cannot consider this extraneous offense against the accused for any purpose going towards motive or identity unless you first believe beyond a reasonable doubt that the defendant Aaron Webb actually committed the offense that Ms. Anglica Dominguez testified about. All right.
After Dominguez testified, the State never explained to the jury how her testimony tended to establish that Webb had murdered Morales. At the conclusion of trial, the jury found Webb guilty; and he was sentenced to ninety-nine years in prison. Standard of Review
We review a trial court's admission of evidence under the abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App. 1991) (on rehearing). A trial court does not abuse its discretion if its "ruling was at least within the zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391. Discussion
Webb argues the trial court erred in overruling his objection to Angelica Dominguez's testimony because it was "irrelevant and immaterial." We agree. "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Tex. R. Evid. 404(b). "Although the Rule 404(b) exceptions are merely illustrative and are not exhaustive, we will address only those purposes fostered by the State in obtaining admission of the testimony." Lazcano v. State, 836 S.W.2d 654, 658-59 (Tex.App.-El Paso 1992, pet. ref'd). To be admissible under Rule 404(b)'s motive exception, extraneous offense evidence must have some tendency to show that the defendant's state of mind toward the victim or a class of persons that included the victim was such that he would commit the charged offense. To be admissible under the Rule 404(b)'s identity exception, as a general rule, "an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork. . . . In determining similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them." Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002). Dominguez's testimony that Webb made sexual gestures toward her approximately one month before Consuelo's murder does not tend to show that Webb had a motive to murder Consuelo. Rule 404(b)'s motive exception thus will not support the trial court's ruling. Nor will Rule 404(b)'s identity exception. That Webb made sexual advances toward Dominguez while she was working as a clerk at a convenience store is not so similar to the charged offense — Consuelo's murder — to mark the offenses as Webb's "handiwork." Dominguez testified that Webb made sexual gestures toward her and thus committed the offense of indecent exposure, while Webb was charged with murdering Consuelo; the incident with Dominguez occurred on February 9, 2002, while Consuelo was murdered over a month later on March 22, 2002; and the incident with Dominguez occurred at a convenience store in Webb's neighborhood, while Consuelo was murdered in her apartment, which was next door to Webb's apartment. The two incidents thus do not appear sufficiently similar for the offense against Dominguez to tend to establish Webb's identity as the person who killed Consuelo. See Johnson, 68 S.W.3d at 650-52 (offenses committed within a few hours of each other, directed at lone women, and involving another victim's red Ford Taurus were sufficiently similar for purposes of identity); Ransom v. State, 503 S.W.2d 810, 813 (Tex.Crim.App. 1974) (offenses were sufficiently similar to establish identity because "both offenses were robberies committed at gunpoint in Dallas three days apart, while appellant, identified as the perpetrator of both, was aided by a confederate"). At trial and on appeal, the State has consistently argued that "[t]he fact scenario in this case closely resembles the fact scenario in Montgomery v. State." We fail to see the similarity. Montgomery was charged with two counts of indecency with a child, namely his daughters. Montgomery, 810 S.W.2d at 374. At trial, Montgomery's ex-wife was permitted to testify that Montgomery "frequently walked around the house in front of his children while he was unclothed" with "an erection." Id. at 380. She further testified that "[s]he once found one of the complainants in the shower with him," "observed that when the younger of the two complainants kissed [Montgomery], the girl's mouth was open and she inserted her tongue," she had observed Montgomery "bathe the little girls," heard Montgomery "discuss their genitals," and "say to the girls: `You and I were meant for each other'; `Give me your hot love'; `My lips were made for kissing'; and `Press my hot lips'." Id. Under these circumstances, the court held "it is clear to us that the aggrieved testimony, when consider[ed] in the context of the other evidence at trial is relevant: it provides the `small nudge' toward proving appellant's sexual motive if he touched the complainants." Id. at 380-81. In short, prior instances of Montgomery behaving in an inappropriate, sexual manner with his minor daughters was "logically relevant," id. at 376 — it tended to prove one or more elements of the charged offense — that Montgomery "knowingly and intentionally engage[d] in sexual contact with [the two complainants] . . . then younger than 17 years and not then the spouse of [Montgomery], by contact between the hand of [Montgomery] and the genitals of [the] complainant]s], with the intent to arouse and gratify the sexual desire of [Montgomery]." Id. at 380. But that is not the case here. Whether Webb had behaved indecently with Dominguez does not tend to establish a motive for murdering Morales or that Webb was in fact Morales's murderer. Because Dominguez's testimony did not tend to establish either the identity or motive of Morales's murderer, we hold the trial court erred in admitting her testimony. "Once it has been determined that the trial court erred, we must decide whether that error was harmful to the defendant. . . . . We must disregard any error that does not affect a defendant's substantial rights." Tamez v. State, 48 S.W.3d 295, 296 (Tex.App.-San Antonio 2001, no pet.) (citing Tex.R.App.P. 44.2(b)). "Generally, a criminal defendant may not be convicted of an offense based on character evidence, that is, of being a `bad person.'" Id. (citing Tex. R. Evid. 404(b); Santellan v. State, 939 S.W.2d 155, 168 (Tex.Crim.App. 1997); Smith v. State, 12 S.W.3d 149, 152 (Tex.App.-El Paso 2000, pet. ref'd)). "This prohibition is not only a substantial right, but a basic tenet of our criminal justice system." Tamez, 48 S.W.3d at 296 (citing Smith, 12 S.W.3d at 152). In this case, Webb's "substantial right" to "not be convicted of an offense based on character evidence" might have been only slightly affected by the erroneous admission of Dominguez's testimony if the evidence of Webb's guilt were overwhelming. But it is not. Although the evidence conclusively establishes that Webb and Morales engaged in vaginal and anal intercourse, it is only the DNA recovered from a fitted white sheet that places Webb in Morales's apartment. The State and its witnesses who testified at trial represented that this white fitted sheet came from Morales's bed. However, at the hearing on Webb's motion for a new trial, the State and its witnesses admitted the sheet in fact came from the Laredo Police Department. There is thus no evidence that places Webb in Morales's apartment at the time of her murder or at any other time. Moreover, the State emphasized the improperly admitted evidence by arguing to the jury that the incident at the convenience store evidenced that Webb's "signature" was to commit crimes against women for sexual gratification. Under these circumstances, we cannot say with fair assurance that Dominguez's testimony did not influence the jury or had only a slight affect. See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We therefore reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.