Affirmed and Memorandum Opinion filed November 24, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00959-CR
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CHRISTOPHER DOUGLAS WOOLVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 895,909
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M E M O R A N D U M O P I N I O N
Appellant entered a plea of not guilty to the offense of retaliation. He was convicted, and the jury sentenced him to sixty years in the Institutional Division of the Texas Department of Criminal Justice. In three issues, he contends the trial court erred in admitting evidence of extraneous offenses and hearsay. We affirm.
Background
In the summer of 2001, Mona Scarbrough and appellant were engaged in an extra-marital affair. When Mona attempted to end the affair, appellant became aggressive and threatened Mona and her family. After receiving several harassing telephone calls, Mona bought a tape-recorder for her telephone and began to record appellant=s calls. Harold Scarbrough, Mona=s husband, worked as a service technician for Halliburton in Houston, Texas. On September 11, 2001, appellant telephoned the Halliburton office in Houston and requested that Harold be terminated from his employment. Appellant threatened to Ablow up@ the Halliburton building and kill Harold Scarbrough or his wife, children, and co-workers. On September 25, 2001, appellant was convicted of making a misdemeanor terroristic threat and sentenced to 120 days in the Harris County Jail.
On November 10, 2001, after being released from jail, appellant again called the Halliburton offices. Because November 10th was a weekend day, Nicole Sheeter, a receptionist with the answering service, answered the call. Sheeter testified that the caller said he had recently been released from jail for harassment, that he had been sexually assaulted in jail, had stitches in his rectal area, and was going to kill everyone concerned. On Monday morning, Sheeter reported the call to the sheriff=s department. She was able to identify appellant=s voice from Mona=s tapes of appellant=s harassing telephone calls.
Issues and Analysis
In his first two issues, appellant challenges the trial court=s admission of extraneous offense evidence. Evidence of other crimes is not admissible to prove a defendant=s character in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b). However, it may be admissible for other purposes, such as proof of motive, intent, knowledge, or absence of mistake or accident. Id. When a party introduces evidence of other crimes for a purpose other than character conformity, the evidence must be relevant. See Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). The standard of review on the admission of extraneous offenses is abuse of discretion. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).
Did the trial court err in admitting details of the September 11, 2001, call?
In his first issue, appellant contends the trial court erred in admitting the details of the September 11, 2001, telephone call. Appellant was first convicted of making a misdemeanor terroristic threat as a result of the call he made on that date. Over appellant=s objection, Harold Scarborough testified that appellant called the Halliburton offices, threatened to blow up the building, and kill Harold or his wife, children, and co-workers. Appellant contends the evidence of the actual threats made during the phone call was not admissible under Texas Rules of Evidence 403 and 404(b).
Admissibility of an extraneous offense hinges on the relevancy of the evidence to a fact of consequence in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). Extraneous offense evidence is admissible if the proponent persuades the trial court the extraneous evidence (1) tends to establish some elemental fact; (2) tends to establish some evidentiary fact, such as intent, leading inferentially to an elemental fact; or (3) rebuts a defensive theory. Santellan v. State, 939 S.W.2d 155, 168B69 (Tex. Crim. App. 1997). The proponent of the evidence must show that evidence has relevance apart from showing character conformity. Rankin, 974 S.W.2d. at 718; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh=g).
Because the offense of retaliation requires proof of a culpable mental state of knowingly or intentionally, the evidence of extraneous offenses is admissible to prove the appellant made the initial threats intentionally. Sewell v. State, 629 S.W.2d 42, 46 (Tex. Crim. App. 1982); see also Tex. Pen. Code Ann. ' 36.06 (Vernon Supp. 2004). Here, the first threat was sufficiently similar to that charged in this case to render it admissible on the issue of intent. The threats were made at the same location, to the same person, close in time, and for the similar purpose of punishing the threatened individual. Because the evidence was properly admitted to show intent, the trial court did not violate Rule 404(b) in admitting the evidence.
Appellant further objected under Rule of Evidence 403 that the prejudicial effect of the details of the September 11th call outweighed its probative value. Although admissible, evidence may be excluded if its relevance is outweighed by a danger that it will unfairly prejudice, confuse, or mislead the jury, if its inclusion will result in undue delay, or if it is needlessly cumulative. Tex. R. Evid. 403. Because Rule 403 favors admissibility of relevant evidence, the presumption is that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d at 389. The burden is on the opponent of the proffered evidence to demonstrate the negative attributes of the evidence and to show how those negative attributes substantially outweigh the probative value of the evidence. Goldberg v. State, 95 S.W.3d 345, 367 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d), cert. denied, 124 S. Ct. 1436 (2004).
In determining whether the prejudice of admitting evidence outweighs its probative value, we consider the following factors:
(1) how compellingly the evidence makes a fact of consequence more or less probable;
(2) the potential the evidence has to impress the jury in an irrational, but 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; and
(4) the proponent=s need for the evidence to prove a fact of consequence.
Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
The evidence of the September 11th call is probative evidence of the offense for which appellant sought retaliation and evidence of his intent to follow through on his threat. As to whether the jury would be impressed in an indelible way, the threat was similar to the threat for which appellant was convicted of retaliation. The fact that appellant chose September 11, 2001, to make his threat was not overly emphasized either in Harold=s testimony or in the prosecutor=s closing argument. The time needed to develop the evidence was minimal; therefore, the jury was not distracted from the indicted offense. Finally, the evidence was necessary to show why appellant had been incarcerated and what had instigated his retaliation. After reviewing the appropriate factors, we conclude there is not a clear disparity between the degree of prejudice of the September 11th call and its probative value. We overrule appellant=s first issue.
Did the trial court err in admitting evidence of previous threats on audiotape?
In his second issue, appellant contends the trial court erred in admitting two audiotapes of threats made by appellant to Mona Scarbrough. Mona testified that prior to the September 11th call to Halliburton, appellant had called her home repeatedly and threatened her and her family. As a result, Mona began to record appellant=s telephone calls to her home. Two of the threatening calls were played for the jury for the purpose of identifying appellant=s voice. Appellant objected that the entire tapes should not be played because they contained extraneous offenses that were not admissible under Texas Rule of Evidence 404(b). Appellant did not object under Rule 403. The trial court overruled the objection, but instructed the jury to consider the audiotape only for the purpose of voice identification.
Extraneous offenses may be admissible to show identity when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). Raising the issue of identity does not automatically render evidence of an extraneous offense admissible. Id. For such evidence to be admissible, the extraneous offense must be so similar to the offense charged that both offenses are marked as the accused=s handiwork. Id. Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Harvey v. State, 3 S.W.3d 170, 175B76 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).
In this case, identity was an issue because appellant did not identify himself to the answering service when he made the November 10th call. The audiotapes were made shortly before the September 11th call, and the threats were similar to those made on September 11th and on November 10th. 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 offenses on the audiotapes to be relevant to the issue of identity. Further, the trial court timely instructed the jury not to consider the audiotape for any purpose other than identity, which lessened any prejudicial effect of the evidence. See Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985). We overrule appellant=s second issue.
Did the trial court err in admitting hearsay testimony through Sergeant Moore?
In his third issue, appellant contends the trial court erred in admitting inadmissible hearsay through Sergeant Moore=s testimony. Sergeant Moore testified that Nicole Sheeter reported the details of the November 10th call to him. Over objection, Moore was permitted to testify to the details of the call. Nicole Sheeter testified at trial to the details of appellant=s threat on November 10, 2001.
Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as provided by statute or the rules of evidence or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 802; Long v. State, 800 S.W.2d 545, 547B48 (Tex. Crim. App. 1990). We conclude Sergeant Moore=s testimony about what Sheeter told him was hearsay that does not fall within an exception. Therefore, the trial court abused its discretion in admitting Sergeant Moore=s testimony over objection.
A violation of evidentiary rules that results in the erroneous admission of evidence is non‑constitutional error under Rule 44.2(b). Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Any non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury=s verdict. King, 953 S.W.2d at 27. The improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay testimony was harmless in light of other properly admitted evidence proving same fact).
Sheeter=s testimony duplicated Sergeant Moore=s testimony with regard to the details of appellant=s threat of retaliation. Because other testimony was admitted that proved the same fact, the erroneous admission of hearsay testimony is harmless. We overrule appellant=s third issue.
We affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed November 24, 2004.
Panel consists of Justices Anderson, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).