Nito Jim Guerra Jr. v. State ( 2010 )

NO. 07-09-00238-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 19, 2010
NITO JIM GUERRA JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 264TH DISTRICT COURT OF BELL COUNTY;
NO. 63206; HONORABLE MARTHA J. TRUDO, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On our own motion, we withdraw our opinion and judgment of May 20, 2010, and
substitute the following. See TEX. R. APP. P. 50.
A Bell County1 jury found appellant, Nito Jim Guerra, guilty of evading arrest or
detention using a motor vehicle and having been previously convicted of evading arrest
1
Pursuant to the Texas Supreme Court’s docket equalization efforts, this case
was transferred to this Court from the Austin Court of Appeals. See TEX. GOV’T CODE
ANN. § 73.001 (Vernon 2005).
or detention, a third-degree felony.2 The trial court assessed a sentence, enhanced by
prior felony convictions, of incarceration for a period of forty years. On appeal,
appellant contends that the trial court abused its discretion by admitting (1) evidence of
extraneous offenses and (2) victim impact testimony relating to an extraneous offense.
We affirm.
Factual and Procedural History
In October 2007, Office Jeffrey Fudge of the Temple Police Department
observed a vehicle without a front license plate. Fudge turned his car around to
investigate, and the suspect vehicle drove off at a high rate of speed. Fudge activated
his emergency lights and sirens and pursued the vehicle. He testified that there was
only one occupant in the vehicle as he pursued it. The driver proceeded into a
neighborhood, traveling at approximately sixty miles per hour, ran a stoplight, nearly
collided head-on with another vehicle, drove between two houses, struck a telephone
pole, and crashed into a concrete drainage ditch.
Fudge got out of his car and ran toward the crash. When he was within twenty-
five to fifty feet of the crash, Fudge clearly saw the driver leap from the disabled vehicle
and flee on foot. Fudge never lost sight of the driver as he pursued him on foot for
about 100 yards. Following this brief chase, the driver, appellant, surrendered and was
arrested by Fudge and, subsequently, was charged with evading arrest or detention.
2
See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (Vernon Supp. 2009).
2
At trial, appellant called his cellmate, Billy Watkins, who was incarcerated on an
unrelated offense and testified that it was he, not appellant, who had been driving the
vehicle. Watkins testified that appellant had asked to be let out of the vehicle but
Watkins kept driving. Watkins explained that he jumped out of the wrecked car at the
same time appellant did but that he was able to escape whereas appellant was
apprehended. Fudge testified that he never saw a second occupant in the vehicle he
was pursuing and that a second person did not get out of the vehicle following the
crash. He also testified that appellant never claimed, prior to trial, that there was a
second person in the vehicle with him or that he was not the driver.
Evidence of Extraneous Offenses
Appellant’s first issue stems from Watkins’s testimony that it was he, rather than
appellant, who was driving the vehicle and that appellant had asked to be let out of the
vehicle. Following and in response to Watkins’s testimony, the State offered evidence
of three prior convictions of appellant: a 2006 conviction for burglary, a 2005 conviction
for possession of a controlled substance, and a 1999 conviction for aggravated assault.
Appellant objected, arguing that Watkins’s testimony that appellant asked to be
let out of the vehicle was nonresponsive and did not open the door to evidence of
extraneous offenses. The State argued that the evidence of extraneous offenses was
proper impeachment evidence of appellant’s out-of-court statement and was relevant to
rebut appellant’s defensive theory that Watkins, rather than appellant, was driving the
truck when police were pursuing it. The extraneous offense evidence, the State
claimed, illustrated appellant’s motive to advance this theory: to avoid an enhanced
3
sentence of twenty-five years to life imprisonment. So, the evidence was relevant,
according to the State, to illustrate motive for appellant to fabricate this defensive theory
challenging the element of identity. The trial court agreed and admitted the evidence
with a limiting instruction that the jury was to consider the evidence only for the
purposes of showing motive to fabricate the version of events that included Watkins as
the driver and impeaching appellant’s statement to Watkins that he wanted out of the
vehicle.
Standard of Review
Whether objected-to evidence of “other crimes, wrongs, or acts” has relevance
apart from character conformity is a question for the trial court. TEX. R. EVID. 404(b),
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g). The
trial court must conclude that the evidence tends, in logic and common experience, to
serve some purpose other than character conformity to make the existence of a fact of
consequence more or less probable than it would be without the evidence. Id. Because
the trial court is in the best position to make the call on such substantive admissibility
issues, we review its admissibility decision under an abuse of discretion standard.
Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); Montgomery, 810 S.W.2d at
391. This standard requires us to uphold the trial court’s admissibility decision when
that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438.
Moreover, we will sustain a trial court’s decision regarding admissibility of evidence if it
is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d
539, 543–44 (Tex.Crim.App. 1990).
4
Exclusion of Evidence under Rule 404(b), Exceptions
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”; however, it may
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, or identity. TEX. R. EVID. 404(b); Williams v. State, 301
S.W.3d 675, 687 (Tex.Crim.App. 2009). The State maintains that Rule 404(b) permits
this evidence for the purposes of showing the identity of the driver and rebutting
appellant’s defensive theory that Watkins was driving and refused to let appellant out of
the vehicle.
Relevant evidence of a person’s bad character may be admissible when it is
relevant to a non-character fact of consequence in the case, such as rebutting a
defensive theory. Powell, 63 S.W.3d at 438; Montgomery, 810 S.W.2d at 387–88.
Additionally, 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); Keen v. State, 85 S.W.3d 405, 413–14 (Tex.App.—Tyler 2002,
pet. ref'd). Evidence of extraneous conduct may be offered to prove motive under Rule
404(b) if the evidence tends to raise an inference that the defendant had a motive to
commit the offense. Crane, 786 S.W.2d at 350. Put another way, such evidence is
admissible under Rule 404(b) if “it tends to establish some evidentiary fact, such as
motive . . ., leading inferentially to an elemental fact [such as identity or intent].” Powell,
63 S.W.3d at 438 (quoting Montgomery, 810 S.W.2d at 387–88).
5
Applicable Law
As noted, the Texas Supreme Court transferred this case to this Court from the
Austin Court of Appeals. That being so, we must decide this case “in accordance with
the precedent of the transferor court under the principles of stare decisis” if our decision
otherwise would have been inconsistent with the precedent of the transferor court. TEX.
R. APP. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex.App.—El Paso 2009, pet.
denied). This Court has addressed Rule 404(b) admissibility issues generally. See
Williams v. State, 290 S.W.3d 407, 410–11 (Tex.App.—Amarillo 2009, no pet.).
However, we have not faced this precise issue.3 The Austin Court has not directly
addressed this issue either. We will, therefore, examine the Austin Court’s general
approach in analyzing Rule 404(b) issues, some language from a related issue that
would suggest the Austin Court’s approach in this specific context, and look to decisions
of sister courts to best discern the intermediate courts’ treatment of this issue.
Generally, it appears the Austin Court adheres to the widely-accepted standard
of review of the trial court’s Rule 404(b) admissibility determinations and has applied
that standard in a variety of contexts. See Maher v. State, No. 03-07-00179-CR, 2008
Tex. App. LEXIS 5213, *10–*11 (Tex.App.—Austin July 10, 2008, pet. ref’d) (mem. op.,
not designated for publication) (evidence of drugs found in appellant’s backpack three
weeks after alleged assault was inadmissible because it had no relevance to the
3
We, therefore, cannot say that the decision in this case would have otherwise
been inconsistent with that of our sister court. Nor do we read Rule 41.3 as permitting
our independent analysis of the issue in the absence of inconsistent precedent from the
transferee court. Rule 41.3 requires us to apply the law of the transferor court in this
situation, and we do so. We note only that this Court has not directly addressed this
issue in a non-transfer case.
6
offenses for which appellant was on trial and served only to prove appellant's bad
character); Tapps v. State, 257 S.W.3d 438, 447 (Tex. App.—Austin 2008), aff'd on
other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009) (testimony concerning whether
witness knew appellant was registered sex offender may be relevant to show potential
bias by the witness or challenge the witness's credibility, purposes other than showing
conduct in conformity with character); Pierce v. State, No. 03-03-00536-CR, 2005
Tex.App. LEXIS 6229, at *25 (Tex.App.—Austin Aug. 3 2005, no pet.) (mem. op., not
designated for publication) (evidence of prior financial improprieties and deceit
admissible in murder trial to show motive).4 The Austin Court has also recognized that,
when an accused challenges an element of the offense requiring proof of intent,
admission of extraneous offense evidence can aid in proving intent if the required intent
cannot be inferred from the act itself or if the accused presents evidence to rebut the
inference that the required intent existed. Johnson v. State, 932 S.W.2d 296, 302
(Tex.App.—Austin 1996, pet. ref'd). We see nothing from our survey of the Austin
4
See also Hernandez v. State, No. 03-07-00040-CR, 2010 Tex. App. LEXIS 851,
*21–*22 (Tex.App.—Austin Feb. 5, 2010, no pet.) (mem. op., not designated for
publication) (quoting Montgomery in recognition that the standard of review means that
an appellate court should reverse the admissibility decision only if it concludes that “by
no reasonable perception of common experience can it be concluded that proffered
evidence has a tendency to make the existence of a fact of consequence” other than
character conformity “more or less probable than it would otherwise be”) Ramirez v.
State, No. 03-05-00219-CR, 2006 Tex.App. LEXIS 7557, at *20–*21 (Tex.App.—Austin
Aug. 25 2006, pet. ref’d) (mem. op., not designated for publication) (extraneous offense
admissible in trial for aggravated robbery to rebut defensive theory challenging identity);
Brown v. State, No. 03-04-00639-CR, 2006 Tex.App. LEXIS 5163, *9–*10 (Tex.App.—
Austin June 16 2006, no pet.) (mem. op., not designated for publication) (even if error
had been preserved, evidence of appellant’s physical abuse of murder victim admissible
to rebut defendant's claim of accident and show element of intent to cause death,
serious bodily injury, or bodily injury).
7
Court’s cases dealing with Rule 404(b) that would suggest any significant departure
from the widely-applied analysis of general Rule 404(b) issues.
The Austin Court comes near the precise issue at hand in Speaks v. State, No.
03-08-00420-CR, 2009 Tex.App. LEXIS 5695 (Tex.App.—Austin July 23, 2009, no pet.)
(mem. op., not designated for publication). In Speaks, appellant, appealing his
conviction for evading arrest or detention, conceded that testimony that he had two
outstanding warrants for his arrest was admissible to show motive for flight; he argued
that testimony regarding the specific nature of offenses for which the warrants were
issued was not admissible. Id. at *3. It was his contention that the trial court should
have granted his motion for mistrial based on the evidence concerning the specific
nature of the warrants, a contention the Austin Court rejected. Id. at *2–*4. Though
Speaks could be read as implied acceptance of the appellant’s concession that general
evidence concerning an extraneous offense is admissible to show motive for flight, the
Austin Court has not been called on to decide the issue squarely. See id. at *3. Other
sister courts have.
Most notably, we look at Powell v. State, 151 S.W.3d 646, 650–51 (Tex.App.—
Waco 2004), rev’d, 189 S.W.3d 285 (Tex. Crim. App. 2006). Powell, like appellant, was
convicted of evading arrest using a motor vehicle. Id. When Powell presented
evidence that it was another man who was driving the vehicle, the State sought to
introduce evidence of Powell’s motive to evade arrest, specifically that a firearm was
found in the vehicle and that Powell was on parole at the time of the offense, and, thus,
subject to revocation of parole for carrying a firearm or associating with people carrying
8
firearms. Id. at 650–51. On appeal to the Waco Court, Powell complained that
evidence of the firearm and his parole status violated Rule 404(b) and was inadmissible
under the balancing test of Rule 403. Id. at 650.
As to the Rule 404(b) issue, the State argued that Powell's parole status tended
to raise an inference that he had a motive to flee because, as a parolee, he was
prohibited from possessing a firearm or associating with someone in possession of a
firearm. Id. The Waco Court agreed:
[T]he evidence surrounding the handgun does at a minimum tend to
raise an inference that one of the occupants of the car was in possession
of a handgun before they fled on foot from the officer. Thus, this
evidence, when considered with Powell's parole status, is relevant to
motive.
Id. at 651. The Waco Court identified the underlying "fact of consequence" or
"elemental fact" to which the evidence was relevant as identity: “[T]he State offered the
evidence in question to prove Powell's motive, which is probative of the disputed
‘elemental fact’ of identity.” Id.
Though it found the evidence of the firearm and Powell’s parole status admissible
as relevant to motive to evade, the Waco Court ultimately found that the admission ran
afoul of Rule 403’s balancing test. Id. at 653; see TEX. R. EVID. 403. That is, in light of
the relevant considerations, that case was one of the “rare” cases in which the record
demonstrated an abuse of discretion. Id. at 652. It further found that admission of the
evidence was not harmless. Id. at 652–53.
The Texas Court of Criminal Appeals acknowledged, if not impliedly approved,
the Waco Court’s application of Rule 404(b): “The Court of Appeals found the evidence
9
was relevant to a noncharacter purpose under Rule 404(b) because it tended to show
motive, which in turn tended to show the elemental fact of identity.” Powell v. State, 189
S.W.3d 285, 287 (Tex.Crim.App. 2006). It went on, however, to reverse the Waco
Court’s decision as to the Rule 403 balancing test5 and remanded the case to the Waco
Court for consideration of the “remaining point of error” concerning a lesser-included
offense. See id. at 287–90; Powell v. State, 206 S.W.3d 142–43 (Tex. App.—Waco
2006, pet. ref’d).
Other sister courts have followed the same general approach when dealing with
evidence of an extraneous offense in a trial on charges of evading arrest or detention.
The Fourteenth Court addressed the issue of admissibility of evidence concerning an
extraneous offense in Britt v. State, No. 14-06-00131-CR, 2007 Tex. App. LEXIS 3148,
at *17–*18 (Tex.App.—Houston [14th Dist.] Apr. 26, 2007, pet. ref’d) (mem. op., not
designated for publication). The question came before the court in a point of error
alleging ineffective assistance of counsel when appellant argued that trial counsel
opened the door to evidence that he was on deferred adjudication community
supervision at the time of the offense and opening the door to such evidence fell below
the standard of prevailing professional norms. Id. The Britt court disagreed, noting that
trial counsel could have believed that evidence of appellant's deferred adjudication
5
Though the Texas Court of Criminal Appeals discussion in Powell centered on
Rule 403 primarily, its discussion of the probative value of the evidence as it relates to
the Rule 403’s balancing test is instructive in that it also served to illuminate how and
why the evidence was probative of motive and, ultimately, identity. It disapproved of the
Waco Court’s conclusion that the evidence of the firearm was only weakly probative of
Powell’s motive, emphasizing the facts that the only issue at trial was the issue of
identity and that Powell had introduced positive testimony controverting the issue of
identity. Id. at 288–89.
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would be admitted, regardless of his question, for the purpose of establishing
appellant's motive and intent to evade arrest. Id. at 18. Importantly, the Britt court read
the Texas Court of Criminal Appeals’ opinion in Powell, 189 S.W.3d at 286-87, 289, as
holding that evidence defendant was on parole was admissible under Rule 404(b) for
purposes of establishing defendant's motive for evading arrest. Id. Similarly, the Dallas
Court concluded that the trial court did not abuse its discretion by admitting evidence of
appellant’s fraudulent possession of identifying information because such evidence was
relevant under Rule 404(b) to show appellant’s “motive to evade detention.” West v.
State, Nos. 05-04-01218-CR, 05-04-01219-CR, 2005 Tex.App. LEXIS 6495, at *5
(Tex.App.—Dallas August 16, 2005, no pet.) (mem. op., not designated for publication).
Likewise, the Fort Worth Court concluded that the trial court did not abuse its discretion
when it admitted a portion of appellant's statement admitting a prior offense of
unauthorized use of a motor vehicle. Vital v. State, Nos. 02-02-00421-CR, 02-02-
00422-CR, 2003 Tex.App. LEXIS 10628, at *4 (Tex.App.—Fort Worth Dec. 18, 2003, no
pet.) (mem. op., not designated for publication). The court concluded that such
evidence was relevant under Rule 404(b) to show that appellant had a motive for
evading arrest and that such relevance was “a legitimate basis for the trial court's
ruling.” Id.
Analysis
From our survey of the Austin Court’s cases addressing Rule 404(b) admissibility
in other contexts and from the implication in Speaks, it would appear that it would
decide the issue in a manner consistent with other sister courts. That is, it would
11
appear from the Austin Court’s previous cases that, if called on to answer this precise
issue, it, like our sister courts, would conclude that Rule 404(b) permits admission of the
evidence of an extraneous offense to show motive to evade arrest or detention.
As did the evidence suggesting a driver other than the defendant in Powell,
Watkins’s testimony went directly to the elemental fact of identity. The State’s evidence
suggested that appellant was motivated to evade arrest or detention because he would
be subject to a lengthy prison sentence.6 We would add that such evidence becomes,
perhaps, more relevant in light of the evidence that appellant’s license had been
suspended and that drug paraphernalia was found in the vehicle after the pursuit.
Showing that appellant had prior felony convictions would tend to make it more probable
that he, knowing he had prior felony convictions, a suspended license, and drug
paraphernalia in his vehicle, would attempt to evade arrest or detention because the
likely consequences of being arrested included a lengthy term of imprisonment. So,
showing that appellant, if arrested, was subject to an enhanced punishment would go to
his motive to evade arrest and, therefore, the elemental fact of identity.
Appellant, in furtherance of his defensive theory, introduced evidence challenging
the identity element and, in doing so, put the element of identity squarely at issue by
urging the defensive theory that Watkins, not appellant, was driving the car during the
pursuit. The admission, for limited purpose, of evidence that suggests that appellant
6
The offense with which appellant was charged is a third-degree felony. See
TEX. PENAL CODE ANN. § 38.04(b)(2)(A). Ordinarily, a third-degree felony is punishable
by two to ten years in prison. See id. at § 12.34(a) (Vernon Supp. 2009). Here,
however, having been convicted of, at least, two prior felonies, Guerra was subject to a
punishment of twenty-five to ninety-nine years or life. See id. at § 12.42(d) (Vernon
Supp. 2009).
12
would have motive to evade arrest or detention logically serves to make less probable
appellant’s defensive evidence that Watkins was the driver.
Therefore, we cannot say that it was outside the zone of reasonable
disagreement for the trial court to conclude that the extraneous offense evidence was
admissible for a non-character purpose under Rule 404(b). The trial court did not abuse
its discretion when it admitted the evidence of extraneous offenses, and we overrule
appellant’s first issue.
Testimony of Victim of Extraneous Offense
Fallon Garcia is appellant’s former girlfriend and testified during the punishment
phase of trial. Garcia testified to previous physical and verbal abuse she suffered at the
hands of appellant. Appellant did not object to this testimony. Likewise, he did not
object to Garcia’s testimony concerning the armed confrontation between appellant and
another man at Garcia’s mother’s house. During the confrontation, appellant pointed a
gun at Garcia and then fired a shot into the air. When the State asked Garcia if she
feared appellant, appellant objected that such testimony would be “effectively victim
impact evidence on extraneous [offenses].” The trial court overruled the objection, and
Garcia testified that she did fear him.
Standard of Review
Again, we review a trial court’s admission or exclusion of evidence for an abuse
of discretion. See Powell, 63 S.W.3d at 438.
13
Testimony of Victim of Extraneous Offense, Victim Impact Testimony
Garcia’s testimony regarding unadjudicated extraneous offenses was admitted
without objection. On appeal, appellant limits his issue to a complaint regarding
Garcia’s testimony that she feared appellant.
Appellant relies on Cantu v. State, 939 S.W.2d 627, 637 (Tex.Crim.App. 1996),
for the proposition that it is error to admit victim impact testimony by witnesses not
named in the indictment for the offense for which an appellant is being tried. In Cantu,
the evidence showed that Cantu was involved in the murder of two teen-aged girls. Id.
at 631. During the punishment phase of the capital murder trial relating to the murder of
one of the victims, the mother of the other victim testified as to the impact the murder of
her daughter had on her family. Id. at 637. The Texas Court of Criminal Appeals noted
that this other victim was not the victim named in the indictment and, though evidence of
the details surrounding the other victim’s murder was admissible contextual evidence,
concluded that her mother’s testimony concerning her life and the impact her death had
on the family “serve[d] no other purpose than to inflame the jury.” Id. It, nonetheless,
found the error in admitting the evidence harmless.
The State responds by pointing to the distinction the Texas Court of Criminal
Appeals drew between Cantu and Roberts v. State, 220 S.W.3d 521, 531
(Tex.Crim.App. 2007). At issue in Roberts was the admissibility of testimony, during the
punishment phase of Roberts’s capital murder trial, of the victim of a robbery committed
by Roberts a few years earlier. Id. The court described “victim impact” evidence as
“evidence of the effect of an offense on people other than the victim.” Id. (emphasis in
14
original). It concluded that the complained-of evidence in Roberts was testimony from
the victim of the extraneous offense, not the offense for which he was being tried, and
specifically distinguished Cantu on this basis. Id. The Roberts court ultimately
concluded that the testimony was admissible. Id.
Analysis
Here, the challenged testimony is in the nature of the evidence examined in
Roberts. That is, the offense to which Garcia testified was an extraneous offense; she
was a victim of that offense, and appellant was not being tried for that offense. Garcia’s
testimony that she feared appellant, then, related solely to the impact the extraneous
offense had on her and was not, therefore, within the definition of “victim impact”
evidence as defined by Roberts. See id. Under Roberts, such testimony is admissible
and distinguishable from the testimony in Cantu; the trial court did not abuse its
discretion by admitting it. We overrule appellant’s second issue.
Conclusion
Having overruled appellant’s two issues, we affirm the trial court’s judgment of
conviction and sentence.
Mackey K. Hancock
Justice
Do not publish.
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