COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SAUL ROMERO, Appellant, v. THE STATE OF TEXAS, Appellee. |
§ § § § § |
No. 08-05-00005-CR Appeal from the 168th District Court of El Paso County, Texas (TC# 20040D00902) |
O P I N I O N
This is an appeal from jury convictions for three counts of aggravated assault with a deadly weapon, (Counts One through Three), and one count of deadly conduct (Count Four). The jury assessed punishment at fifteen years’ imprisonment and a $5,000 fine on Count One, five years’ imprisonment and a $2,000 fine on Count Two, two years’ imprisonment and a fine of $2,000 on Count Three, and eight years’ imprisonment and a fine of $5,000 on Count Four. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
Prior to trial, Appellant objected to the anticipated evidence that Appellant had given a sum of money to one of his companions to buy cocaine from Sidina Mobley who was nicknamed “Precious.” Appellant wanted to avert any mention of a drug deal. On the day of trial, the court ruled that the State could refer to activities that led up to searching for Mobley, but could not refer to the possible use of counterfeit money or cocaine. Appellant argued that even with these restrictions, the evidence was more prejudicial than probative. The court overruled this objection.
The offenses involved were alleged to have occurred on or about December 2, 2003 in El Paso County, Texas. Around that date, Sergio Diaz testified that he picked up Appellant between 5 p.m. and 6 p.m. to go to a house were a woman named Monica lived. Diaz characterized Monica as being Appellant’s wife. Diaz, Appellant, and an individual named Victor Devora were in the car. When they arrived at the house, they picked up Monica’s brother, Jose Borjon, known as “Junior.” They drove to a store to meet up with some of Junior’s friends in order to buy what was characterized as “product” at trial. After going to various stores and a fast food outlet, they stopped at a Wendy’s restaurant. Junior had changed vehicles and was in a tan Explorer. They parked on one side of the restaurant and Junior went to the other side to get the product. He phoned back to the car that a girl was walking to their side, she had the money, and she was going to get the product. Diaz saw her get into a blue BMW and leave. He described the girl as being black. They were unable to follow the car, and they returned to the Wendy’s to get Junior. It became apparent to Diaz that Appellant’s money was used to try to purchase the product. Junior and Appellant were arguing and Appellant was upset with Junior that the girl had left without providing the product. They continued the search to no avail.
They drove to Diaz’ house and changed cars. They drove off in Diaz’ red Mustang. They went to Appellant’s house were he got a gun. Appellant had the gun tucked into his pants and covered with his shirt. Appellant got into the car and stated that he was going to scare the people in the BMW in order to get the money back. Monica called and they met her at a bar called Tequila Sunrise. The BMW was there and Appellant spoke to two individuals who were friends with Monica. They agreed to follow the BMW when it left the bar. Diaz, Appellant, Junior, and Devora waited at Monica’s house to hear from the individuals in the white car. They got a call and they went to the stated location. Diaz was driving the Mustang, Appellant was in the passenger’s seat, Junior was behind Appellant, and Devora was seated behind Diaz. They saw the white car blocking the BMW at a stop sign. Someone got out of the BMW and threw a can at the white car. Diaz drove up next to the BMW and started driving side-by-side. He heard gunshots and he saw that the windows in the BMW were shot out and it was swerving. Diaz saw Appellant get back into the car from the window. He had the gun in his hand. Appellant threw the gun out of the window. They proceeded to Monica’s house, and Devora took Diaz’ car back to his house, and Appellant took Diaz home in Monica’s truck.
Victor Devora testified that on the day of the shooting, Sergio Diaz came by and took him out to eat. They drove to a Burger King restaurant. Devora, Sergio Diaz, Appellant, and Junior were in a white Honda. At the restaurant, Devora went inside to eat and the others remained outside. Later, Devora met up again with the same individuals. Appellant appeared angry, and Junior seemed worried. Appellant asked Junior “why had he given it to him” or her.
Devora and the others drove to some apartments, strip clubs, and bars, and then went to pick up a red mustang belonging to Diaz’ mother. They then went to Appellant’s house. Only Appellant went inside, and Devora was unaware of why Appellant went into the house. They then proceeded to the Tequila Sunrise bar. There, Appellant and a woman Devora knew as being Appellant’s wife waited in the parking lot for the arrival of someone. Devora joined them as they stood with two other individuals in front of a white car. They then went to Junior’s house for a phone call. After receiving a call, they went to a location where the white car and the BMW were stopped at a traffic light. Diaz was driving, Appellant was in the front passenger seat, Devora was seated behind the driver, and Junior was behind the Appellant. The Mustang traded places with the white car behind the BMW. After initially losing sight of the BMW, they came across the BMW and the white car. Someone from the BMW was fighting someone from the white car. The BMW took off leaving its passenger behind. The Mustang pulled up on the right side of the BMW. Devora saw Appellant put his hand out the window and start shooting. He bent down and did not see anything else. He did not think Junior was shooting. He never actually saw a gun.
They went back to Junior’s house, and Devora asked if he could take the Mustang in order to go home. He took it to Diaz’ house and then went home. He did not talk to the others afterward about the incident as he was afraid of them. He did not know anyone in the car had a gun, and he was not involved in the shooting. He was never arrested for the offense.
Regina Lauren Rendon testified that she was Jose Borjon’s (Junior’s) girlfriend. Appellant was Monica Borjon’s boyfriend and Rendon knew Appellant from that connection. Earlier in the day of the shooting, she was helping Monica move into her father’s house. Junior was assisting. Later, Appellant and Diaz and Devora came to help. Those three left and returned later. While she did not understand Spanish, she was able to discern that Junior wanted to find a girl named “Precious” because Appellant’s money had been taken. Rendon and Monica went to the Tequila Sunrise bar and obtained what she referred to as “product.” Monica spoke to an individual named Eric who was driving a white car. Rendon and Monica were looking for a BMW because someone named “Precious” was in the vehicle. The two then returned to Monica’s house.
Leslie Saenz testified that on the day of the shooting, she was in the process of moving. Rick Gomez, Sidina Mobley, and Rick Dominguez, who was known as “Watts,” were helping her. Sidina’s nickname was “Precious.” Mobley persisted in saying that she wanted to go eat. After dropping off a load in the U-Haul truck, they stopped at a McDonald’s restaurant. Mobley got out of the car to make a phone call. She then walked to a nearby Wendy’s restaurant.
When they returned to the house, Mobley went into another room to talk on her phone and the phone kept ringing all night. They returned the U-Haul truck and they went out to eat. Mobley told Saenz that she was afraid to go home and she asked the others if she could spend the night with them. She received a negative answer. They then went to the Tequila Sunrise bar to get one beer. Mobley “went crazy” buying drinks for everyone. She was trying to go out with some men so that she could stay with them.
When they left the bar, it was their intention to go back to Saenz’ house to get Rick Dominguez’ car in order to proceed to Gomez’ house. Gomez was driving the BMW, Saenz was in the passenger’s seat, Mobley was behind her, and Dominguez was behind the driver. Gomez stated that he thought someone was following them. While Gomez made a turn, a white car almost ran into them. Someone was hanging outside the passenger side window. Saenz stated that she was intoxicated and she did not know how many people were in the other car. It appeared that rocks were being thrown. Dominguez jumped out of the car. Gomez stated that someone was shooting at them. Gomez released Saenz’ seatbelt and pushed her head down. A bullet came into the car, grazed Saenz’ head, and hit Gomez. Gomez accelerated, but he had been paralyzed, and he needed Saenz’ help to stop the car. They narrowly avoided hitting some gas pumps at a convenience store. A woman at the store called the police. Saenz was unable to identify anyone with a gun.
Rick Dominguez also helped Saenz to move. After they finished moving, Dominguez, Saenz, Mobley, and Gomez went to eat. They then went to the Tequila Sunrise bar for a drink. Mobley kept on buying them all drinks. She did not want to go home. When they left the bar, Dominguez saw a white car driving by on the opposite side of the street and someone was hanging out the passenger-side window. Someone in the white car threw something at the car Dominguez and his friends were in. Gomez stopped and Dominguez got out of the car. Gomez drove off and four individuals got out of the white car. Dominguez jumped over a wall to escape them. The individuals in the white car left. Dominguez had no reason to believe that anyone was after him or the others.
Ricardo Gomez testified that he also helped Saenz move. When they had returned the U-Haul truck, they all went out to eat and then went to the Tequila Sunrise bar for a beer. Mobley started buying drinks nonstop and it appeared that she had a lot of money. She did not want to leave and they stayed at the bar until about 1 a.m. Gomez was driving, and Saenz was in the front passenger seat. Mobley was behind Saenz, and Dominguez was seated behind Gomez. As he was driving Dominguez home, Gomez noticed that a white car was following. The white car cut them off. A bald-headed individual was sitting on the window of the white car. It was an individual he had seen outside the Tequila Sunrise bar that night. Something was thrown at the BMW Gomez was driving. Gomez saw that the man sitting on the window had a gun. He fired several shots but the shots did not hit them. Just as Gomez drove around the white car, a red car came up on the right side of Gomez’ car. Shots were fired and one bullet hit a door lock on the BMW. He stated that he saw a flash from where he guessed was in the back of the driver. Gomez accelerated. Then he told Saenz to get down just as he was shot. Saenz said she was shot in the head, and Gomez knew he was shot because he could not feel his legs. He told Saenz to get his foot off the accelerator, and the car pulled into a gas station. As ambulance transported Gomez to the hospital. He was paralyzed from the chest down.
On cross-examination, Gomez said that he was unable to identify Appellant as the shooter. He stated that the red car was to the right of his when the shots were fired. He saw a flash, but because he was accelerating, he could not tell where the shot came from.
Dionicio Romero, Appellant’s brother, testified for the defense. He stated that at the time of the offense, he, Appellant, a friend, and some other brothers were working in Tularosa, New Mexico doing construction work. The crew would leave El Paso at about five o’clock in the morning and they would return to El Paso at six o’clock in the evening. The witness testified that Appellant had worked the entire week after the Thanksgiving holiday. Margarito Nevarez related that he worked on the construction crew. He testified that all members of the crew, including Appellant, worked the week following the Thanksgiving weekend.
Socorro Romero, Appellant’s mother stated that Appellant was living at home with her around Thanksgiving time. She woke him up to go to work at 4 a.m. on both Monday, December 1, and Tuesday December 2. A woman named Carla was with him. On Monday night, he got back at 6 p.m. She saw Appellant and Carla watching a movie at 9 p.m.
Carla Hernandez testified that after spending the Thanksgiving holiday with her friends and family, she went to Appellant’s house on Monday at about 6:30 or 7 p.m. She ate and visited with Appellant’s family. She and Appellant went to his room and watched movies until they went to sleep at 1 or 2 a.m. She had seen Appellant’s mother at 9:30 p.m. earlier that night. Appellant stayed with her the whole evening until his mother woke him up at 4 a.m. She left the house at 5 a.m. to go to work.
Sidina Mobley testified that she was in the vehicle when the driver received a gunshot wound on December 2, 2003. She stated that she was confused as to who fired the shots notwithstanding that she told the police that morning that Jose Borjon had fired the shots. She thought that the white car was on the right side of the vehicle she was in while the red car was in front. Mobley stated that she was not positive about anything that happened even though she had stated otherwise in her statements to the police.
Mobley testified that she saw Jose Borjon and two other men at the McDonald’s restaurant when she and Saenz were in the BMW that afternoon. She identified Appellant as being one of the men. She was nervous that night because she had taken money from Borjon, and she thought someone was going to come after her. She knew the money belonged to Appellant.
The court instructed the jury that Sergio Diaz was an accomplice as a matter of law and the court gave instructions as to how the testimony of that witness must be corroborated. Appellant requested that the jury charge indicate that Victor Devora was an accomplice witness. This request was denied.
II. DISCUSSION
In Issue No. One, Appellant asserts that the court erred when it failed to charge the jury on Victor’s status as an accomplice as a matter of law and fact. Accomplice-witness testimony is “inherently suspect.” Jones v. State, 982 S.W.2d 386, 389 n.5 (Tex. Crim. App. 1998). Therefore, the “accomplice-witness rule” provides that a conviction cannot stand on accomplice testimony unless there is other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997)). The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser-included offense. Id.; Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Blake, 971 S.W.2d at 455. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term “accomplice.” Id. A witness is not an accomplice simply because he knew of the crime but failed to disclose it or even concealed it. Villarreal v. State, 576 S.W.2d 51, 56 (Tex. Crim. App. 1978).
An accused has the right to an instruction on any defensive issue raised by the evidence whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). When evidence from any source raises a defensive issue, and the defendant requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, 510 U.S. 837, 114 S. Ct. 116, 126 L. Ed. 2d 82 (1993). However, in determining the application of a defensive instruction, one aspect of a witnesses’ testimony “. . . cannot be plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). The entire record must be examined for evidence raising the issue of whether or not a particular witness is an accomplice. See Cruz v. State, 690 S.W.2d 246, 250 (Tex. Crim. App. 1985).
In the present case, the record shows that Devora was not present at the time of the drug transaction with Mobley. Further, there is no evidence that he was aware of the transaction. Appellant was in the front seat of the Mustang when he showed the gun to Diaz. Evidence shows that Devora was in the backseat, and there was no evidence that he saw the gun or that he was aware of Appellant’s intent to use it to scare Mobley. Appellant relies on the testimony of the victim, who described seeing a flash which he guessed came from in back of the driver. Appellant contends that this is evidence that Devora was the shooter. However, on cross-examination, the victim clarified his testimony and said he just saw a flash, and because he was accelerating, he could not tell where it came from. In addition, Appellant relies on the testimony of several police officers to the effect that it appeared that the shot that was fired into the door of the victim’s vehicle was a straight-in shot. Officer Julio Ordaz agreed that the shot trajectory would be consistent with someone holding a handgun out level as they were driving by and firing. Appellant has taken this evidence again to show that Devora was the actual shooter, and therefore should have been charged as an accomplice. However, we find this evidence to be speculative and not supportive of Appellant’s conclusion; it is not sufficient to warrant an accomplice instruction as a matter of law or fact. Issue No. One is overruled.
In Issue No. Two, Appellant argues the trial court erred when it failed to require the jury to return a unanimous verdict on whether Appellant committed the offense by firing the gun in question or whether he committed the offense by assisting in the commission of the offense. Appellant also argues that the trial court erred when it failed to require that the jury return a unanimous verdict with respect to what kind of aggravated assault was committed under Count One of the indictment. Appellant did not object to the jury charge on these grounds at trial. The charge read in part, concerning the manner of deliberation, “[i]n order to return a verdict, each juror must agree to it” and “[y]ou shall not reach a verdict by lot or by chance or by any other method except by a fair and impartial deliberation of the law and the evidence.” The application paragraph as to Count One, read in pertinent part:
Now if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of December, 2003 in El Paso County, Texas, the Defendant, SAUL ROMERO, acting either individually or as a party as that term is herein defined,
PARAGRAPH A
did then and there intentionally or knowingly or recklessly cause serious bodily injury to RICARDO GOMEZ by shooting RICARDO GOMEZ with a firearm, or
PARAGRAPH B
did then and there intentionally or knowingly or recklessly cause bodily injury to RICARDO GOMEZ by shooting RICARDO GOMEZ with a firearm, and the said Defendant, SAUL ROMERO, did then and there use or exhibit a deadly weapon, during the commission of or immediate flight from said assault, to wit: a firearm, or
PARAGRAPH C
did then and there intentionally or knowingly threaten RICARDO GOMEZ with imminent bodily injury and did then and there use or exhibit a deadly weapon, to wit: a firearm during the commission of said assault, then you will find the Defendant, SAUL ROMERO, guilty of aggravated assault as alleged in Count I of the indictment.
When reviewing charge error, we employ a two-step analysis. Washington v. State, 930 S.W.2d 695, 698 (Tex. App.--El Paso 1996, no pet.). We must first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Washington, 930 S.W.2d at 698. In making this determination, we view the charge as a whole and our review is not limited to a series of isolated statements or portions of the charge standing alone. Washington, 930 S.W.2d at 698; see Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989). Second, we must determine whether sufficient harm resulted from the error so as to require reversal. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. Which harmless error standard applies depends upon whether the defendant objected. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Washington, 930 S.W.2d at 698. Where, as here, the defendant failed to object, he must show that he suffered actual egregious harm. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. Where there has been a timely objection made at trial an appellate court will search only for “some harm.” Abdnor, 871 S.W.2d at 732; Almanza, 686 S.W.2d at 171. Under Almanza, we examine the error in light of (1) the entire jury charge, (2) the state of the evidence, including the contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information. Almanza, 686 S.W.2d at 171.
Jury unanimity is required in felony cases. Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2006); Tex. Code Crim. Proc. Ann. art. 37.03 (Vernon 1981). In this context, unanimity means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). In reviewing a disjunctive jury charge, we first determine whether the application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense. Holford v. State, 177 S.W.3d 454 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d). If the disjunctive paragraphs contain different criminal acts, then the jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Id. at 461 (citing Ngo, 175 S.W.3d at 744 (holding that because defendant was charged with three different criminal acts of credit card abuse, jury had to unanimously agree that defendant did at least one of three different things: steal the credit card, knowingly receive the stolen credit card, or fraudulently present stolen credit card with intent to obtain benefit)). But if the disjunctive paragraphs merely inform the jury of different means of committing a single offense, then the jury does not have to unanimously agree on which alternative means the defendant used to commit the offense. Holford, 177 S.W.3d at 462 (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
In Marinos v. State, 186 S.W.3d 167, 174 (Tex. App.--Austin 2006, pet. filed), that court held, citing Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005), that the trial court erred by failing to require a unanimous verdict finding the accused guilty of either aggravated assault by bodily injury or aggravated assault by threat as each allegation constituted a different offense. See also Gonzales v. State, 191 S.W.3d 741, 748 (Tex. App.--Waco 2006, no pet.). Accordingly, in this case, the court erred in submitting the three different allegations of aggravated assault without requiring a unanimous verdict on one of the allegations.
An unpreserved complaint about a charge error in a criminal case is reviewed for “egregious harm.” Almanza, 686 S.W.2d at 171-72 (op. on reh’g). Because trial counsel did not timely object to the charge, Appellant must show that he suffered egregious harm, a difficult standard that is determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Errors that result in egregious harm are those that affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at 172). The harm to an accused must be actual, not just theoretical. Almanza, 686 S.W.2d at 174. In deciding whether egregious harm exists, we look at (1) the charge itself, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171; see Ngo, 175 S.W.3d at 749.
In the present case, the prosecutor argued in closing argument that the jurors did not have to concur on each paragraph as long as all twelve jurors believed that at least one of the paragraphs had been proven by the State beyond a reasonable doubt. That statement accentuated the charge error. Marinos, 186 S.W.3d at 176. Further, the statement in the charge that each juror must agree to the verdict, did not serve to cure the error. Id. at 175. However, regarding the contested issues at trial, each paragraph required that Appellant used a firearm, which was described as a deadly weapon. The contested issue at trial was whether or not Appellant was the shooter. His defensive posture was that he was at home at the time of the shooting. None of the paragraphs are mutually exclusive. There was no question at trial that the complainant suffered serious bodily injury and that a deadly weapon was used. Accordingly, we find that Appellant did not suffer egregious harm as a result of the erroneous charge. See Gonzales, 191 S.W.3d at 751. Issue No. Two is overruled.
In Issue No. Three, Appellant argues the trial court erred when it allowed the State to present evidence that Mobley and Appellant were involved in a transaction in which she took a sum of money for a product without providing the product.
Prior to the presentation of evidence, Appellant asked the judge to exclude evidence that he had been involved in the purchase of cocaine with one of the complainants, Sidina Mobley, and that Mobley had taken the money without providing the drugs. Appellant urged the court to exclude the evidence on the basis that the probative value of such evidence would be outweighed by its prejudicial effect. The trial court ruled that the State could say a transaction to purchase something fell apart because Mobley did not produce the purchased product, and they went after her. Appellant argues the evidence was unnecessary and extremely prejudicial since Romero’s defense was that he was not in the car at the time of the offense.
Tex. R. Evid. 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. But the “other crime, wrong, or act” may have relevance “apart from character conformity; that it tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (citing Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex. Crim. App. 1990) (op. on reh’g)). Additionally, same transaction contextual evidence may be admissible where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, . . ., of any one of them cannot be given without showing the others.” Id. (citing Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). The Court of Criminal Appeals has held that “it has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986).
Under Rule 404(b), however, same transaction contextual evidence is admissible “only to the extent that it is necessary to the jury’s understanding of the offense.” Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). It is admissible only “when the offense would make little or no sense without also bringing in the same transaction evidence.” Id.
We conclude that the trial court did not err. The evidence of the product transaction was so intertwined with the aggravated assault that the jury’s understanding of the offense would have been obscured without it. Further, admission of the product transaction evidence tended to establish some evidentiary fact, such as motive, opportunity, and preparation. Id. In the instant case, the State’s theory was to prove that the aggravated assault was intentional by showing that the product transaction and Mobley’s subsequent failure to deliver the product was the motive for the aggravated assault. See Wyatt, 23 S.W.3d at 25.
Appellant asserts the evidence was more prejudicial than probative. The Texas Rule of Evidence Rule 403 balancing test includes the following factors:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable-a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way;”
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
Id. at 26.
This Court will reverse only upon a clear abuse of discretion. Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994); see also Montgomery, 810 S.W.2d at 390 (stating that “so long as the trial court . . . operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be”).
First, we note that the evidence presented by the prosecution to show the drug transaction was necessary for the jury to understand Appellant’s actions and motive. Additionally, the trial court limited reference to the drug transaction by only allowing the State to say a transaction to purchase a product. Therefore, it is unlikely that the jury would convict Appellant solely for being a criminal. Further, the evidence was important to the prosecutors’ contention that Appellant intentionally committed the aggravated assault and that said assault stemmed from the transaction gone bad. Any evidence presented by the State is generally prejudicial to the defendant; however, because the two crimes here were so intertwined, the evidence of one was necessarily probative of the other. In light of these facts, we hold that the trial judge did not abuse her discretion in concluding that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. See Montgomery, 810 S.W.2d at 387. Issue No. Three is overruled in its entirety.
In his fourth issue, Appellant asserts the trial court erred when it denied Appellant’s request for a mistrial after the State referred to a drug deal in violation of the court’s order that it not do so. On direct examination of Sergio Diaz, the prosecutor asked the following question; “Let’s back up for a second, Mr. Diaz, and talk about the different cars that everyone was in during the drug--excuse me--during the product transaction.” Appellant objected and requested a mistrial on the basis that a curative instruction would be futile. The court sustained the objection on the grounds that the State’s question violated a motion in limine and warned the prosecutor. The court denied the request for a mistrial and instructed the jury to disregard the prosecutor’s question. The judge expressed her belief that it was a mistake and not intentional.
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Id. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard. Id.
An instruction to disregard an impermissible question generally cures any prejudicial effect. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). In assessing the curative effect of a court’s instruction to disregard, the correct inquiry is whether, in light of the record as a whole, the argument was extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory the instruction to disregard was ineffective. Id. at 115-16. We do not find that the question was so inflammatory as to be incurable by an instruction to disregard. The jury was certainly aware of purported theft of the money given to Mobley, and the issue of drugs was collateral to the actual charges upon which Appellant was being tried. We discern no abuse of discretion in the trial court’s denial of the motion for mistrial. We overrule Issue No. Four.
In Issue No. Five, Appellant asserts that the evidence is legally and factually insufficient to support the conviction. Specifically, Appellant contends that the jury should have been instructed that Devora was an accomplice; as such, there was insufficient evidence to corroborate Diaz’ and Devora’s testimony. We note that we have held that the court did not err in failing to give accomplice witness instructions regarding Devora’s testimony. Furthermore, when reviewing evidentiary sufficiency, the court must consider all of the evidence presented, whether properly or improperly admitted. Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996).
In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).
Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref’d). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State ,901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref’d); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref’d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness’s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref’d).
In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder’s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury’s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.
In the instant case, evidence was presented that Appellant gave Junior a sum of money to purchase cocaine from Mobley, and that Mobley took the money without delivering the drugs. The Appellant picked up a gun and said he wanted to scare Mobley to get his money back. Appellant with the help of somebody in a white car, located the BMW Mobley had been seen in. Diaz testified he pulled up next to the BMW, was driving about 80 miles per hour, and then heard gun shots. Diaz said he then saw Appellant getting back into the car from the window, and he had the gun in his hand.
Devora testified that he saw Appellant pull out his hand and start shooting. Although he did not see the gun because he bent down when Appellant started shooting, he testified that he believed Appellant was the person shooting. Devora was not an accomplice in the offense and we find his testimony sufficient to corroborate Diaz’ accomplice testimony.
Appellant presented testimony from his mother and Carla Hernandez to the effect that Appellant was at home the entire evening of the instant offense and therefore could not possibly have committed the offense. The credibility of the witnesses was an issue for the jury as the sole judge of the weight and credibility to attach to each witness. The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness’s testimony. The jury could have reasonably disregarded the testimony of Carla Hernandez and Appellant’s mother. Consequently, we find the evidence legally and factually sufficient to support the jury’s guilty verdict in the instant case. Issue No. Five is overruled.
In Issue No. Six, Appellant argues that the court erred when it denied his request for a mistrial after the prosecutor asked a witness if she knew that Appellant had been arrested for battery of a family member. Appellant’s brother testified at the punishment phase on Appellant’s behalf. On cross-examination, the prosecutor inquired if Appellant’s brother was aware of Appellant’s criminal history. He said that he was aware of Appellant’s criminal record but was not aware that Appellant had been in trouble in New Mexico. The prosecutor asked if Appellant’s brother was aware of two specific offenses and he replied that he was. Then the prosecutor asked, “[d]id you know that in August of 2000 in Dona Ana County, New Mexico, he was arrested by the Sunland Park Police Department and charged with battery on a family member?” Appellant objected to the question on the basis that the charges had been dismissed. The trial court sustained Appellant’s objection, instructed the jury to disregard the last question, and denied Appellant’s request for a mistrial.
Again, a mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ladd, 3 S.W.3d at 567. An instruction to disregard an impermissible question generally cures any prejudicial effect. See Wesbrook, 29 S.W.3d at 115. In assessing the curative effect of a court’s instruction to disregard, the correct inquiry is whether, in light of the record as a whole, the argument was extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory the instruction to disregard was ineffective. Id. at 115-16. Looking at the record as a whole and given the fact that it was established that Appellant had a criminal history, we find the instruction to disregard cured any error that may have occurred. Issue No. Six is overruled.
In Issue No. Seven, Appellant argues that during the punishment phase, the trial court erred when it overruled his relevance objection and his Texas Rules of Evidence Rule 403 objection to questions asked by the State of Ricardo Gallegos, a defense witness, regarding a charge that had been dismissed. As a character witness for the defense, Gallegos testified at punishment that he had known Appellant for about fifteen years, that they had gone to school together, and had played sports in school. Gallegos stated that Appellant was a good kid, that he was “into sports,” and that they had played baseball and football together. When Appellant asked him if there was something he would like to say to the jury, Gallegos asked for “clemency,” and stated that Appellant was a good father, that his children needed him, and that he was a nice guy, and a good worker.
On cross-examination, the prosecutor said, “Let’s talk about the kinds of things you and Mr. Romero were doing in 1998 together, and 1999. Do you remember those years?” When Gallegos indicated he did, she asked him what kind of things they were doing together, and Gallegos responded, “We hang out.” The prosecutor then asked, “Were you arrested together?” Gallegos answered, “yes.”
At a bench conference, Appellant objected to talking about the arrest since the charges were dismissed, and lodged a relevance objection under article 37.07. The trial court ruled that the prosecutor could question the witness about the events that led up to the arrest. Appellant again stated the case was dismissed, and the judge replied, “That can come out, too.” Appellant then objected to the evidence being more prejudicial than probative. The trial court overruled the objection.
Gallegos testified that they were partying, were at a party, and he remembered that a guy tried to run over them. He denied that Appellant beat up a kid, and took a tool box. Gallegos said he was acquitted of those charges, and denied that charges were dismissed because the kid did not show up for trial.
While “[e]vidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion,” the accused in a criminal case may place his character in issue by offering evidence of his good character. Tex. R. Evid. 404(a)(1)(A). By placing his character in issue, however, the accused “opens the door” for the State to rebut evidence of his good character with its own evidence of the accused’s bad character. On cross-examination, the State may test the character witness’s familiarity with the defendant’s character or demonstrate that the witness has a low standard for what he considers good character by inquiring into prior specific instances of conduct that are inconsistent with the particular character trait, but the State may not offer extrinsic evidence regarding the prior incidents solely to show the character witness is “wrong” in his opinion. Tex. R. Evid. 405(a).
Appellant argues the evidence presented by the State had no probative value since the witness answered that none of the offenses had occurred. We disagree. By raising the defensive theory that Appellant was a nice guy, or of good character, Appellant (through Gallegos) opened the door for the State to cross-examine him regarding an extraneous offense if the extraneous offense would tend to correct the false impression left by the witness’s direct examination testimony. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002). We find that the court did not err in admitting the complained-of testimony. Issue No. Seven is overruled
Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.
RICHARD BARAJAS, Chief Justice
August 24, 2006
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)