IN THE
TENTH COURT OF APPEALS
No. 10-13-00298-CR
CLIFTON DEAN MONTGOMERY, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 12-01245-CRF-272
MEMORANDUM OPINION
In the early morning of December 14, 2011, just after midnight, two men got out
of a dark-colored Impala and approached the front door of the home of eighteen-year old
Raymond Cavazos, a drug dealer, in Bryan. When Cavazos heard a knock on the door,
he looked out the window, got his handgun, and opened the door. A brief scuffle and an
exchange of several gunshots ensued. Cavazos was shot in the head and killed. The two
men entered the home, went to a bedroom closet, and took a black box that contained
Cavazos’s drugs and cash in the amount of $3,000 to $4,000. They also took his gun.
Cavazos’s girlfriend, who lived there with Cavazos and her three children,
partially witnessed the events, and neighbors who were outside at the time also partially
witnessed the events. Based on a description of the vehicle and a Crimestoppers tip,
police were quickly led to Appellant Clifton Dean Montgomery, Jr., whom they arrested
on December 16. In a recorded interrogation, Montgomery eventually confessed that he
was one of the two men who went to Cavazos’s home to rob him but that it was Eugene
“Geno” Jenkins who shot Cavazos. Montgomery said that Cavazos fired the first shot.
Bryan Police Detective Steven Fry, who investigated the murder, testified that he believed
that Cavazos fired the first shot; he also opined that Montgomery and Jenkins went to
Cavazos’s home armed so that they could rob him.
A jury found Montgomery guilty of capital murder, and because the State did not
seek the death penalty, he was assessed an automatic life sentence without parole.
Montgomery appeals, asserting in two issues that the trial court abused its discretion in
admitting extraneous-offense evidence in violation of Rules of Evidence 404(b) and 403,
respectively. We will affirm.
During the police interrogation, Montgomery repeatedly professed that he was
only a crack dealer. The video of the interrogation was going to be shown to the jury,
and Montgomery’s counsel objected on Rule 404(b) and 403 grounds. The trial court
overruled the objections and gave the jury a limiting instruction that the extraneous-
offense evidence could be considered only on the issues of motive and intent. The charge
likewise included such an instruction.
“Whether extraneous offense evidence has relevance apart from
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character conformity, as required by Rule 404(b), is a question for the trial
court.” De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)
(quoting Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). We
review a trial court’s ruling on the admissibility of extraneous offenses
under an abuse-of-discretion standard. Id. As long as the trial court’s ruling
is within the “zone of reasonable disagreement,” it will be upheld. Id.
Under Rule of Evidence 404(b), 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.” TEX. R. EVID. 404(b). However, it may be
admissible for other purposes, “such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” De La Paz, 279 S.W.3d at 342-43. The rule excludes only that
evidence that is offered solely for the purpose of proving bad character and
conduct in conformity with that character. Id. at 343. In addition, evidence
admissible under rule 404(b) may nonetheless be excluded if the trial judge
determines that its probative value is substantially outweighed by the
danger of unfair prejudice. TEX. R. EVID. 403; Mozon v. State, 991 S.W.2d 841,
846-47 (Tex. Crim. App. 1999).
An exception to rule 404(b) exists in that extraneous offenses may be
admissible as same-transaction contextual evidence when “several crimes
are intermixed, or blended with one another, or connected so that they form
an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 731-32
(Tex. Crim. App. 2005) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim.
App. 1993)). This type of evidence results when an extraneous matter is so
intertwined with the State’s proof of the charged crime that avoiding
reference to it would make the State’s case difficult to understand or
incomplete. Id. at 732. Same-transaction contextual evidence is “admissible
to show the context in which the criminal act occurred.” Wesbrook v. State,
29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “[E]vents do not occur in a
vacuum, and the jury has a right to hear what occurred immediately prior
to and subsequent to the commission of that act so that it may realistically
evaluate the evidence.” Id.
There are two types of contextual evidence: (1) evidence of other
offenses connected with the primary offense, referred to as same transaction
contextual evidence; and (2) general background evidence, referred to as
background contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.
Crim. App. 1991). Same transaction contextual evidence is admissible as an
exception under Rule 404(b) where such evidence is necessary to the jury’s
understanding of the charged offense. See Wyatt, 23 S.W.3d at 25; Rogers v.
State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Extraneous conduct is
Montgomery v. State Page 3
considered to be same transaction contextual evidence when the charged
offense would make little or no sense without also bringing in the same
transaction evidence. Rogers, 853 S.W.2d at 33. Such evidence provides the
jury information essential to understanding the context and circumstances
of events that are blended or interwoven. Camacho v. State, 864 S.W.2d 524,
532 (Tex. Crim. App. 1993).
The purpose of admitting same transaction contextual evidence is
not to show that the extraneous charged offenses are part of a common
scheme or that the charged offense was committed in an identical signature
manner. Jones v. State, 962 S.W.2d 158, 166 (Tex. App.—Fort Worth 1998, no
pet.). Nor is the purpose to show that appellant committed the charged
offense merely because he also committed the extraneous offense. Id.
Rather, the purpose of admitting extraneous evidence as same transaction
contextual evidence is to put the instant offense in context. Id.; Mayes, 816
S.W.2d at 86-87; Camacho, 864 S.W.2d at 532.
Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003,
pet. dism’d).
Davis v. State, No. 10-07-00206-CR, 2011 WL 322877, at *9 (Tex. App.—Waco Feb. 2, 2011,
pet. ref’d) (not designated for publication).
The indictment charged Montgomery with capital murder in that he caused
Cavazos’s death by shooting him with a firearm in the course of committing or
attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014).
On appeal, the State asserts that the motive for the crime and Montgomery’s intent was
to rob Cavazos of drugs and money.
The evidence showed that Cavazos was a drug dealer, and Detective Fry testified
that drug dealers often carry weapons because they are at a risk of being robbed of their
drugs or money and, upon being robbed, cannot report it to the police because of their
involvement in the illegal activity. Fry added that people involved in drugs tend to have
weapons. Thus, the State concludes, the trial court did not abuse its discretion in
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admitting evidence that Montgomery was also a drug dealer; that evidence shows
Montgomery’s motive and intent, and it also put the offense in context as same-
transaction contextual evidence and background contextual evidence. See, e.g., Medellin
v. State, 960 S.W.2d 904, 908-09 (Tex. App.—Amarillo 1997, no pet.); see also Davis, 2011
WL 322877, at *9-10; Prewitt v. State, 133 S.W.3d 860, 865 (Tex. App.—Amarillo 2004, pet.
ref’d); Swarb, 125 S.W.3d at 682. We agree with the State. Because we cannot say that the
trial court abused its discretion in admitting evidence that Montgomery was a drug
dealer as evidence of motive or intent, and because the evidence was same-transaction
contextual evidence and background contextual evidence, we overrule issue one.
Montgomery’s second issue alleges that the evidence that he was a drug dealer
should have been excluded because its prejudicial effect outweighed its probative value.
See TEX. R. EVID. 403.
In its seminal decision in Montgomery v. State, the Court of Criminal Appeals
identified four non-exclusive factors to be considered in determining
whether evidence should be excluded under Rule 403. Those factors were:
(1) the probative value of the evidence; (2) the potential to impress the jury
in some irrational, yet indelible, way; (3) the time needed to develop the
evidence; and, (4) the proponent’s need for the evidence.
More recently, the Court has looked to the language of Rule 403 and
restated the pertinent factors.
[A] trial court, when undertaking a Rule 403 analysis, must balance
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4)
any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat
Montgomery v. State Page 5
evidence already admitted. Of course, these factors may well blend
together in practice.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
(footnotes omitted).
Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote and
citations omitted).
Rule 403 “envisions exclusion of evidence only when there is a ‘clear disparity
between the degree of prejudice of the offered evidence and its probative value.’” Id. at
322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). “Generally,
although a trial court must still perform a balancing test to see if the same transaction
contextual evidence’s probative value is substantially outweighed by its prejudicial
effect, the prejudicial nature of contextual evidence rarely renders such evidence
inadmissible, as long as it sets the stage for the jury’s comprehension of the whole
criminal transaction.” Swarb, 125 S.W.3d at 681-82 (citing Houston v. State, 832 S.W.2d
180, 183-84 (Tex. App.—Waco 1992, pet. dism’d); and Smith v. State, 949 S.W.2d 333, 337
(Tex. App.—Tyler 1996, pet. ref’d)).
Again, we agree with the State that Montgomery’s admission to the police that he
was a drug dealer set the stage for the jury’s understanding of the entire criminal
transaction with Cavazos. See id.; see also Davis, 2011 WL 322877, at *10-11. The jury heard
evidence that Cavazos was a drug dealer and was armed and that drug dealers
commonly carry weapons. We thus cannot say that there is a “clear disparity” between
the danger of unfair prejudice posed by the evidence that Montgomery was also a drug
dealer and its probative value. Thus, the trial court did not abuse its discretion by
Montgomery v. State Page 6
overruling Montgomery’s rule 403 objection. We overrule issue two.
Having overruled both issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 2, 2015
Do not publish
[CRPM]
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