TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. B-94-0484-S, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING
A jury found Ramon Salazar guilty of murder and imposed a sentence of thirty-five years in prison. He appeals by two points of error, contending that the trial court erred by admitting testimony about extraneous offenses and by failing to instruct the jury that, before it could consider extraneous acts with regard to guilt and punishment, it must find beyond a reasonable doubt that Salazar committed the acts. We will affirm the conviction and punishment.
Salazar does not challenge the sufficiency of the evidence to support his conviction. We set forth some of the salient facts to properly frame the issues presented. On August 3, 1995, Rodney Taylor began fighting Xavier Martinez on the street where Salazar lived. Seeing the fight, Salazar retrieved a pistol from his car and ran to the fight. When he arrived, Taylor was on top of Martinez on the ground. Here, the testimony conflicts; Martinez may have called for help, Salazar may have warned Taylor, and Salazar may have tried to pull Taylor off of Martinez. There is no dispute that Salazar shot Taylor in the back, killing him.
Salazar ran and hid at Martinez's house. He cut his hair to avoid detection. He dismantled the gun and his family threw the pieces into a creek bed in another county. When arrested, he signed a voluntary written statement admitting he shot Taylor, but claiming defense of third persons--a defense he used at trial.
He was released on personal recognizance bond on December 16, 1994 with electronic monitoring. On January 9, his community supervision officer called to tell him his monitoring unit was in tamper mode. That same day, Salazar failed to appear for a meeting with the officer and for the scheduled pretrial court appearance. He disappeared for almost a month. He did not turn himself in despite his mother's urging.
On February 8, 1995, a citizen told a patrolling sheriff's deputy that a man was walking down a rural road with what looked to be a shotgun under his coat. When the deputy found the man and stopped the patrol car to investigate, the man started to walk away across the road. The man kept one hand, fumbling, under his coat, but offered no other resistance. The deputy recognized the man as Salazar and knew he was the subject of an outstanding murder warrant. When the deputy, concerned for his own safety, drew his gun, Salazar finally withdrew his hand from his coat. Salazar was carrying a loaded sawed-off shotgun and wearing a bandolier of shotgun ammunition; the coat pocket had a hole that allowed him access to the shotgun.
Salazar contends by his first point of error that the trial court erred in allowing testimony regarding extraneous acts in violation of Texas Rules of Criminal Evidence 403 and 404. He complains of testimony regarding the following events occurring after Salazar was released from jail in December: his electronic monitoring system showing tamper mode, his failure to appear for the pretrial hearing that same day, and his arrest while carrying a loaded shotgun and wearing a bandolier of shotgun shells. Salazar contends that the evidence should have been excluded because it was evidence of other crimes, wrongs, or acts intended to prove character conformity (Rule 404(b)) or because its probative value was substantially outweighed by the danger of unfair prejudice (Rule 403).
We review for an abuse of discretion the trial court's decision. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh'g). We review the trial court's implementation of a three-part analysis. Id. at 386. We examine whether the evidence is relevant to a material issue in the case, whether it has relevance beyond proof of criminal propensity, and whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, delay, or needless repetition of evidence. Id. at 387-90.
We will look at the first two steps together. Relevant evidence is that which tends to make the existence of a consequential fact more or less probable than without the evidence. Tex. R. Crim. Evid. 401. When deciding whether to admit evidence under Rule 404(b), the court must decide whether the evidence serves some purpose other than character conformity to make the existence of a fact or consequence more or less probable than it would be without the evidence. Montgomery, 810 S.W.2d at 391. We will disturb a trial court's ruling only if we can say with confidence that the trial court's decision is not correct by any reasonable perception of common experience. Id. Each of the objected-to instances shows flight, which tends to show awareness of guilt. See Colella v. State, 915 S.W.2d 834, 839 (Tex. Cr. App. 1995). The incidents involving the monitoring device and the failure to appear show flight from the consequences of the crime here; the circumstances of his arrest on the roadside show the same, albeit further removed from the immediate flight. We will not disturb the court's ruling that this evidence was relevant and showed something other than criminal propensity.
Nor will we overturn the trial court's assessment that the probative value was not substantially outweighed by the danger of unfairness. Criteria indicating that the evidence should be excluded under Rule 403 include that the ultimate issue was not seriously contested by the opponent, that the State had other convincing evidence to establish the ultimate issue, that the probative value of the misconduct evidence was not particularly compelling, and that a limiting instruction would not have been effective. Montgomery, 810 S.W.2d at 392-93. Though Salazar admitted he killed Taylor, he insisted consistently that he did it in defense of a third party; evidence of flight undermines the apparent strength of his belief in that defense. This evidence helped the State establish his state of mind--critical to both proving the crime and defeating his defense. While certainly not convincing alone to prove the murder charge, the extraneous acts were somewhat persuasive of guilt, particularly when considered together with other evidence. Further, the risk of unfair prejudice is minimal. None of the extraneous acts was flagrant enough alone to prejudice a jury or persuade them of his criminal propensity. If anything, the incident at his arrest shows him less likely to commit murder generally; he was alone with a deputy, had his hand on or near a loaded shotgun, and yet did not try to shoot or escape. We will not disturb the trial court's assessment that the probative value was not substantially outweighed by the risk of unfairness. We overrule point one.
Salazar contends by his second point of error that the trial court should have instructed the jury that, before it could consider extraneous offenses in assessing punishment, it must find beyond a reasonable doubt that he committed the extraneous offenses. The court must give that instruction when requested by the defendant. George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1995) (guilt/innocence); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (punishment). Salazar, however, admits that he did not request an instruction or object to its absence. It is not clear what the trial court is required to do in the absence of a request or objection. Smith v. State, 899 S.W.2d 31, 35 (Tex. App.--Austin 1995, pet ref'd). As in Smith, assuming without deciding that the failure to sua sponte give the instruction is error, we will examine for egregious harm. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). The failure to give the instruction, therefore, does not necessarily lead to reversal. Escovedo v. State, 902 S.W.2d 109, 114-15 (Tex. App.--Houston [1st Dist.] 1995, no pet.). We will reverse only if the error was egregious and created such harm that it deprived Salazar of a fair and impartial trial. Tex. Code Crim. Proc. Ann. art. 36.19; Almanza, 686 S.W.2d at 171. We assay the degree of harm in light of the entire jury charge, the state of the evidence (including the contested issues and weight of probative evidence), the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
We do not find egregious harm. Salazar does not complain about the remainder of the charge. Though Salazar contends that the constitution requires that he not be convicted except by proof beyond a reasonable doubt, the jury charge did not violate that tenet; it contained the standard reasonable doubt instruction regarding the murder charge. There was overwhelming evidence that he killed Taylor; the only dispute was whether he killed defending a third party. Even as regards the extraneous acts, Salazar does not contend that he did not commit them; he disputes only the legality of carrying a shotgun, and the deputy admitted on the stand that carrying a shotgun under a coat was not illegal and that Salazar was not charged with an offense. There is absolutely no showing that the jury had any reason not to find beyond a reasonable doubt that he took the extraneous actions about which he complains. The range of punishment was five to ninety-nine years; the jurors refused probation and assessed thirty-five years. We find that the absence of the instruction did not deprive Salazar of a fair trial. Even assuming that the failure to give the instruction at guilt/innocence or punishment was error, we find no egregious harm and overrule point two.
We affirm the judgment and punishment.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: March 27, 1997
Do Not Publish
issue was not seriously contested by the opponent, that the State had other convincing evidence to establish the ultimate issue, that the probative value of the misconduct evidence was not particularly compelling, and that a limiting instruction would not have been effective. Montgomery, 810 S.W.2d at 392-93. Though Salazar admitted he killed Taylor, he insisted consistently that he did it in defense of a third party; evidence of flight undermines the apparent strength of his belief in that defense. This evidence helped the State establish his state of mind--critical to both proving the crime and defeating his defense. While certainly not convincing alone to prove the murder charge, the extraneous acts were somewhat persuasive of guilt, particularly when considered together with other evidence. Further, the risk of unfair prejudice is minimal. None of the extraneous acts was flagrant enough alone to prejudice a jury or persuade them of his criminal propensity. If anything, the incident at his arrest shows him less likely to commit murder generally; he was alone with a deputy, had his hand on or near a loaded shotgun, and yet did not try to shoot or escape. We will not disturb the trial court's assessment that the probative value was not substantially outweighed by the risk of unfairness. We overrule point one.
Salazar contends by his second point of error that the trial court should have instructed the jury that, before it could consider extraneous offenses in assessing punishment, it must find beyond a reasonable doubt that he committed the extraneous offenses. The court must give that instruction when requested by the defendant. George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1995) (guilt/innocence); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (punishment). Salazar, however, admits that he did not request an instruction or object to its absence. I