Erik Jimenez v. State ( 2019 )

Affirmed and Memorandum Majority and Concurring Opinions filed
December 31, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00364-CR
ERIK JIMENEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1514680
CONCURRING OPINION
While I concur in the majority’s judgment affirming this case, I do not agree
that the “bad act” testified to, to wit, Appellant’s mere presence in a vehicle in a
parking lot, comes even close to satisfying the relevancy requirement that 404(b)
entails. Character conformity evidence is inadmissible if it has no relevance
beyond a tendency to show the defendant is a bad person or of a character from
whom criminal conduct might be expected. Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). Here, the State attempted to bolster its
evidence by merely placing Appellant in the same parking lot a few months after
the arrest with no evidence that there was a bad act or crime committed at that later
time. Mere presence at a location cannot be allowed to constitute 404(b) evidence
without more. The trial court abused its discretion by allowing the testimony to
come into evidence over a proper objection.
However, the trial court’s error in admitting this testimony was ultimately
harmless. The State elicited testimony from Cindy Carillo regarding the June 22,
2016 incident (including her description of the general business affairs of
Appellant’s prostitution enterprise). Therefore, even though I would find that the
trial court erred in overruling Appellant’s objections to the testimony concerning
the October 19, 2016 event, that error was unlikely to have had a substantial and
injurious effect or influence upon the jury’s deliberations and, so, was harmless.
See, e.g., Leyba v. State, 416 S.W.3d 563, 570 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (alleged error in the admission of evidence was harmless where
remaining evidence “presented a strong case” of the defendant’s guilt).
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Frost and Justices Wise and Hassan (Wise, J.,
majority).
Do Not Publish — Tex. R. App. P. 47.2(b).
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