TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00350-CR
v.
The State of Texas, Appellee
NO. 97-272, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
Factual Summary
Luellen "Tina" Brackens, the complainant, testified that she and appellant had a two and a half year romantic relationship and were living together on November 17, 1997. Early in the morning of November 17, Brackens woke up to get ready for work. She woke appellant at about 5:00 a.m. Appellant came out of the bedroom pointing a gun at her, "ranting and raving" and accusing her of working for the Central Intelligence Agency, the Federal Bureau of Investigation, and the Drug Enforcement Agency. When a friend called, appellant told him that Brackens had infiltrated appellant's family and that appellant was going to "put a cap in [her] ass and . . . kill the lying bitch." Brackens testified that appellant then placed the gun next to her head and fired; at first she thought he had shot her, but he had fired at the wall and the bullet missed her head. Appellant indicated that he was going to kill Brackens and then commit suicide. Appellant continued to hold Brackens at gunpoint, threatening her from about 5:00 a.m. until 1:45 p.m. Throughout the day, he repeated "that he was going to put a cap in [Brackens'] ass if [she] went anywhere in the house." About 1:45 p.m., Brackens went to the sink near the front door and pretended to wash her hair while appellant spoke on the telephone to his mother. Brackens heard appellant tell his mother that he was going to kill Brackens, that he "wanted to put [Brackens] down," and that "today was [Brackens'] deadline for life." As she pretended to wash her hair, Brackens leaned over, unlatched the door, and ran down the driveway as fast as she could. She turned to look back and saw appellant leaning out the door, aiming the gun at her. Appellant fired the gun and hit Brackens in the back. Brackens said she heard another three shots, but only the first shot hit her. The bullet entered her back, passed through her body, and exited from her upper abdomen. She flagged down a truck and was taken to a Luling hospital. She had to be air-lifted to a San Antonio hospital due to the severity of her injuries. Brackens was hospitalized for nine days, had her spleen removed, and at time of trial was still unable to return to work.
Discussion
In his sole issue on appeal, appellant argues the trial court erred in allowing Brackens to testify as to the events occurring between 5:00 a.m., when he fired the gun while holding it next to her head, (1) and 1:45 p.m., when he shot her, the second count of the indictment for which he was convicted. We disagree and will overrule appellant's issue on appeal.
The State correctly argues in its brief that appellant waived any error by not objecting in time to Brackens' testimony regarding appellant's threats to kill her. Appellant did not object timely, waiting until after she had stated twice that appellant threatened to "put a cap in [her] ass." However, appellant's objection was timely as to Brackens' testimony that appellant held her captive during the day, and we will review this issue on appeal.
The admission or exclusion of evidence is reviewed under an abuse of discretion standard. See Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.--Austin 1998, pet. ref'd). Evidence of other crimes generally is inadmissible when introduced to show the defendant acted in conformity therewith. See Tex. R. Evid. 404(b); Blakeney v. State, 911 S.W.2d 508, 514 (Tex. App.--Austin 1995, no pet.). However, extraneous bad acts may be admissible as background evidence if (1) the evidence is relevant under rule 401 of the Texas Rules of Evidence and (2) it falls within an exception under rule 404(b). See Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993); Garrett v. State, 875 S.W.2d 444, 446 (Tex. App.--Austin 1994, pet. ref'd).
"Same transaction contextual evidence," evidence of other bad acts connected with the charged offense, is admissible as a rule 404(b) exception when it is so intermixed and connected with the charged offense as to make it impossible for the jury to understand the charged offense without the evidence. See Rogers, 853 S.W.2d at 33; Dusek v. State, 978 S.W.2d 129, 136 (Tex. App.--Austin 1998, pet. ref'd). In other words, same transaction contextual evidence is admissible if the facts and circumstances of the charged offense make little or no sense without the same transaction evidence. See Rogers, 853 S.W.2d at 33.
In this case, appellant objected to Brackens' testimony about appellant threatening to kill her and holding her at gunpoint in the house between 5:00 a.m. and 1:45 p.m. The State contends that both assaults and the extraneous offenses were part of one continuous transaction. We agree. The events occurring between the first and the final assault were so connected with the charged offenses as to be necessary for the jury's understanding of the charges. The evidence gave the jury "information essential to understanding the context and circumstances" of the charged offenses. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). The district court did not abuse its discretion in finding that the evidence of appellant's extraneous offenses fell within the rule 404(b) exception. We overrule appellant's issue on appeal and affirm the district court's judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: March 30, 2000
Do Not Publish
1. This was the first count of the indictment, and the jury acquitted him of this charge.
ired the gun and hit Brackens in the back. Brackens said she heard another three shots, but only the first shot hit her. The bullet entered her back, passed through her body, and exited from her upper abdomen. She flagged down a truck and was taken to a Luling hospital. She had to be air-lifted to a San Antonio hospital due to the severity of her injuries. Brackens was hospitalized for nine days, had her spleen removed, and at time of trial was still unable to return to work.
Discussion
In his sole issue on appeal, appellant argues the trial court erred in allowing Brackens to testify as to the events occurring between 5:00 a.m., when he fired the gun while holding it next to her head, (1) and 1:45 p.m., when he shot her, the second count of the indictment for which he was convicted. We disagree and will overrule appellant's issue on appeal.
The State correctly argues in its brief that appellant waived any error by not objecting in time to Brackens' testimony regarding appellant's threats to kill her. Appellant did not object timely, waiting until after she had stated twice that appellant threatened to "put a cap in [her] ass." Howeve