Affirmed and Opinion filed February 6, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-98-01303-CR
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KENNETH WEST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 771,595
O P I N I O N O N R E M A N D
Appellant, Kenneth West, was convicted by a jury of the offense of murder and sentenced to sixty years= imprisonment. On original submission, this Court held that appellant failed to preserve error with regard to two of his issues, namely, (1) whether the probative value of an extraneous homicide was outweighed by unfair prejudice under Rule 403 of the Texas Rules of Evidence, and (2) whether the trial court erred in refusing to instruct the jury on the law of self-defense with regard to the extraneous homicide. West v. State, No. 14‑98‑01303‑CR, 2001 WL 333118 (Tex. App.CHouston [14th Dist.] April 5, 2001, pet. granted). The Court of Criminal Appeals found no procedural default with regard to these two issues, reversed our initial opinion, and remanded the case for consideration of these issues on their merits. West v. State, No. 1195‑01 (Tex. Crim. App. April 17, 2002). We affirm.
The evidence shows that at approximately 2:00 a.m., appellant and his accomplice approached a car outside the Carrington Club and fired thirty shots into the back of the vehicle. One of the occupants was killed; three others were wounded. The only contested issue was identity. Two eyewitnesses testified that they observed appellant firing shots at the vehicle in which the victim was riding. Appellant=s trial counsel, however, while allowing appellant was present at the scene of the murder, repeatedly challenged these witnesses as to the accuracy of their identification of appellant as one of the shooters. Moreover, another witness to the incident testified that appellant was not involved, as did appellant himself.
In rebuttal, the State offered evidence showing that six months earlier, appellant and his accomplice walked up behind another car parked at an Exxon service station, across the street from the Carrington Club, at approximately 2:00 a.m. and fired twenty-five shots into the back of the vehicle. Again, one occupant was killed.
In his first issue, appellant contends the trial court improperly admitted evidence of an extraneous shooting because its probative value was substantially outweighed by the danger of unfair prejudice.[1] We disagree.
Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.[2] Questions of admissibility of evidence under the rule are assigned to the trial court and are reviewable only for abuse of discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Reviewing the trial court=s judgment for abuse of discretion requires more than deciding that the court conducted the required balancing of probative value versus the danger of unfair prejudice and did not rule arbitrarily or capriciously. Graff v. State, 65 S.W.3d 730, 739 (Tex. App.CWaco 2001, pet. ref=d). Instead, we measure the trial court=s ruling against the relevant criteria by which a Rule 403 decision is to be made: (1) that the fact at issue was not seriously contested; (2) that the State had other convincing evidence to establish the issue; (3) that the probative value of the evidence was not particularly compelling; and (4) that the evidence was of such a nature that a limiting instruction would not likely have been effective. Reese v. State, 33 S.W.3d 238, 240B41 (Tex. Crim. App. 2000); Montgomery, 810 S.W.2d at 392B93 (recognizing the criteria are not exhaustive). The trial court does not abuse its discretion if its decision falls within the zone of reasonable disagreement and is reasonable in view of all relevant facts. Santellan, 939 S.W.2d at 169; Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996).
Virtually all relevant evidence proffered by a party will be prejudicial to the opposing party; in fact, in an adversarial system of justice, prejudice to the opponent is the ultimate objective to be achieved by the introduction of evidence. Only unfair prejudice provides a basis for exclusion of relevant evidence. Montgomery, 810 S.W.2d at 378. Unfair prejudice refers to an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Unfair prejudice will substantially outweigh probative value only if there is a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996). Moreover, there is a presumption that relevant evidence will be more probative than prejudicial. Santellan, 939 S.W.2d at 169; Graff, 65 S.W.3d at 739.
Here, the only contested issue with regard to the primary offense was identity. Thus, the extraneous homicide was introduced by the State to buttress the evidence identifying appellant as one of the shooters.[3] Given the questions raised regarding the extent of appellant=s involvement, the probative value of his extraneous offense was compelling. Lastly, the trial judge instructed the jury to consider evidence of appellant=s extraneous offense only for the purposes permitted by Rule of Evidence 404: determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of [appellant], if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose. See Tex. R. Evid. 404(b). We do not perceive any reason such a limiting instruction would be any less effective in the present case than in other cases in which identity is an issue. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (en banc).
Under these circumstances, the trial court was within the zone of reasonable disagreement when it concluded that the probative value of the extraneous offense was not substantially outweighed by its prejudicial impact. Appellant=s first issue is overruled.
In his second issue, appellant contends the trial court erred in refusing to instruct the jury on the law of self‑defense as it applied to the extraneous shooting offered in rebuttal to the appellant=s defensive theory, i.e., mistaken identification.
“[W]hen evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof.” Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001) (quoting Lankford v. State, 93 Tex. Crim. 442, 248 S.W. 389, 389 (1923)). Thus, upon request, the jury should be instructed they are not to consider extraneous act evidence unless the jurors believe beyond a reasonable doubt that the defendant committed that act. Id.; see also Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (“If a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction”). Similarly, the trial court must, upon demand, instruct the jurors that they may consider the extraneous act only for the limited purposes for which it was admitted. Ex parte Varelas, 45 S.W.3d at 631, 634 (noting that, “[w]ithout such an instruction, the jury [i]s likely to consider the extraneous acts as direct evidence of [a defendant=s] guilt; that is, he acted in conformity with his character”).
There is no requirement, however, that the jury be provided further instructions of the type sought by appellant. When the State offers evidence of an extraneous offense, it has no obligation to prove up the criminality of that offense. The extraneous conduct is relevant if it has probative value in proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, etc., whether such conduct does or does not constitute a criminal offense. For example, in Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996), the State introduced evidence of an extraneous homicide at the punishment phase of a capital murder trial to show the defendant would likely be a continuing threat to society. The defendant was never convicted of the extraneous offense, however, because he was no-billed by the grand jury. In fact, the prosecuting attorney admitted the extraneous homicide was probably justified under the law of self-defense. Nevertheless, the Court of Criminal Appeals held the extraneous offense was properly admitted in evidence because it showed that “appellant knowingly and willingly placed himself in, and sought after, circumstances facilitating homicide soon after [the extraneous] killing,” thereby demonstrating “a callousness and lack of reflection about taking human life” which would increase the probability of further violence. Id. at 807B08. In a concurring opinion, Judge Clinton wrote that even if the extraneous killing was lawful, it might nevertheless “show a lack of compunction about taking human lifeCa nascent taste for killing which came to fruition in the instant murders.” Id. at 819 (Clinton, J., concurring).
Here, the extraneous offense was remarkably similar to the primary offense. Given the “signature” nature of the two offenses, the extraneous offense was highly probative on the issue of identity regardless of whether it was legally justified.[4] Accordingly, appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed February 6, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] In addition, appellant contends the trial court erred in admitting evidence of his extraneous offense because it was irrelevant. We have previously held, however, Athat the proximity in time and place, the common mode of committing the offenses, and the circumstances surrounding the offenses, are sufficiently similar for the extraneous offense . . . to be relevant to the issue of identity.@ West, No. 14-98-01303-CR, 2001 WL 333118, at *3. As the Court of Criminal Appeals left this finding undisturbed, the issue need not be addressed anew herein.
[2] In its entirety, Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
Tex. R. Evid. 403.
[3] As we noted in our prior opinion, the charged and extraneous offenses were alike in that:
(1) both offenses were murders committed with automatic pistols; (2) both offenses occurred at approximately the same time at night and after the Carrington Club had closed for the night; (3) appellant was aided by the same confederate, Chris White; (4) the offenses were committed in the same area, at or near the Carrington Club; (5) appellant and White used the same method of operation in each offense (appellant and White walked to the rear of the victims= cars and opened fire on the rear of the car with automatic pistols, puncturing the cars with a large number of bullets); and (6) the extraneous act was committed six months earlier.
West, No. 14-98-01303-CR, 2001 WL 333118, at *3.
[4] We also observe that even though the defendant=s extraneous conduct must be proven beyond a reasonable doubt, courts need not give an instruction regarding accomplice witness testimony for extraneous offenses nor is a special verdict listing elements of the extraneous offense required. Jones v. State, 982 S.W.2d 386, 395 (Tex. Crim. App. 1998); Matchett v. State, 941 S.W.2d 922, 937 (Tex. Crim. App. 1996). Similarly, we perceive no necessity for the trial court to give an instruction on the law of self-defense pertaining to an extraneous offense.