Affirmed and Memorandum Opinion filed August 10, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01068-CR
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MARK DIOGU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 910,297
M E M O R A N D U M O P I N I O N
Appellant Mark Diogu was convicted by a jury of aggravated assault with a deadly weapon and sentenced to five years= community supervision. In this appeal, appellant contends the trial court erred in admitting evidence of extraneous offenses and in refusing his requested charge on the lesser-included offense of misdemeanor assault.[1] We affirm.
FACTUAL BACKGROUND
On April 28, 2002, there was an altercation at a gas station involving appellant and two of his friends (Dedrick Moore and Jeb Carter) on the one hand and Richard Sydenstricker, the complainant, and two of his coworkers (Daniel Stout and Chase Hall) on the other. The specific details of what happened are hotly disputed. Sydensticker, Carter, Hall, and appellant had been involved in an altercation several weeks earlier in which Sydenstricker had broken Carter=s nose. Sydenstricker said he got a pipe wrench to defend himself after appellant and Carter came after him with metal pipes when they saw him at the gas station. At some point, Sydenstricker threw the wrench and went inside the gas station store. According to Sydenstricker, appellant and Carter then came inside the store and hit him with the pipes. Carter admitted hitting Sydenstricker, but appellant insisted he never hit Sydenstricker. Appellant claimed to be scared of Sydenstricker because of the earlier altercation and said he was using the pipe only to scare Sydenstricker and to defend himself.
At trial, over defense counsel=s objection, the State offered testimony from several witnesses regarding appellant=s violent temper and aggression on two occasions other than the incident in question. A Webster Police Department officer testified regarding an incident in which appellant, who was in custody for another offense, became aggressive and violent, yelling at and pushing several officers. Five other witnesses testified about a second incident at the pretrial services office where appellant tried to flee from custody, eventually requiring about twelve officers to subdue him. During this incident, appellant kicked at least two officers, hit another in the mouth and threatened to beat her with handcuffs, and bit another officer on the thigh. The witnesses confirmed that appellant was the aggressor on both of these occasions.
ANALYSIS
Extraneous Offenses
In four points of error, appellant alleges the trial court erred in admitting evidence of his conduct at the pretrial services office and at the Webster Police Department. The State introduced this evidence in response to appellant=s claim that he acted in self-defense.
Upon timely objection to evidence of other crimes, wrongs, or acts, the proponent of the evidence must persuade the trial court that (1) the extraneous evidence is admissible under Rule 404(b) and (2) the probative value of the evidence substantially outweighs the danger of unfair prejudice to the defendant under Rule 403. Montgomery v. State, 810 S.W.2d 372, 387B88 (Tex. Crim. App. 1991) (op. on reh=g). We review the trial court=s admission of an extraneous offense for an abuse of discretion. The trial court does not abuse its discretion as long as its ruling is within the zone of reasonable disagreement. Id. at 391.
Rule 404(b)
Under Rule 404(b), evidence of extraneous offenses is admissible if it is relevant apart from or beyond character conformity, such as to establish motive, opportunity, or intent or to rebut a defensive theory. Id. at 387B88. If the trial court determines the offered evidence has such relevance, it may admit the evidence and instruct the jury that the evidence is limited to the specific purpose the proponent advocated.[2] Id.
When the accused claims self-defense, the State may introduce evidence of other violent acts where the defendant was the aggressor to show the defendant=s intent. Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.CAustin 1996, pet ref=d) (cited with approval in Rogers v. State, 105 S.W.3d 630, 633 n.4 (Tex. Crim. App. 2003)); Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.CHouston [1st Dist.] 1992, no pet.)(also cited with approval in Rogers); see also Halliburton v. State, 528 S.W.2d 216, 219 (Tex. Crim. App. 1975) (op on reh=g); Morrow v. State, 735 S.W.2d 907, 909 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d). In this case, appellant asked for and received an instruction on self-defense in the charge. The extraneous-offense evidence tended to make it less probable that appellant was acting in self-defense and more probable that he was the first aggressor. Because the extraneous-offense evidence was relevant to disprove appellant=s claim of self-defense, we cannot say the trial court abused its discretion in admitting the evidence on this basis. See Robinson, 844 S.W.2d at 929.
Rule 403
Although admissible under Rule 404(b), the same evidence may be inadmissible under Rule 403 if the probative value of such evidence is substantially outweighed by unfair prejudice.[3] Montgomery, 810 S.W.2d at 388. Having found that the trial court did not abuse its discretion in determining that the extraneous-offense evidence has some relevance apart from showing appellant=s bad character, we now examine whether the trial court conducted a proper Rule 403 analysis.
An appellate court reviews the trial court=s ruling on whether to exclude evidence under Rule 403 by an abuse-of-discretion standard. Id. at 391. To determine if the trial court operated within the boundaries of its discretion in deciding whether the prejudice of an extraneous offense outweighs its probative value, the appellate court must look to the Montgomery-Mozon factors. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). Those factors are as follows:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probableCa 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 Ain 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; and
(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.
Under the Rule 404(b) analysis, we concluded the evidence did make facts of consequence more probable. The evidence showed that appellant was very violent and aggressive on two prior occasions, even to the point of striking and biting police officers. This compelling evidence rebutted appellant=s claim that he acted only in self-defense when he struck Sydenstricker with a metal pipe. With respect to the second factor, the Court of Criminal Appeals has stated that the concern here is only with the danger of Aunfair@ prejudice. Manning, 114 S.W.3d at 927. In this case, the evidence was obviously prejudicial to appellant, but it was not unfairly prejudicial because it rebutted appellant=s claim of self-defense. Nor did it have a great potential to impress the jury in an irrational way. The State was able to develop the testimony relating to the extraneous offenses quickly and efficiently at the end of the trial. Thus, we do not find the proportion of time spent detailing and proving up the extraneous offense to be significant.
As for the fourth and final factor, the issue of appellant=s intent to commit an assault (as opposed to defending himself) was in considerable dispute. Therefore, the probative value of this evidence of two prior acts of violent aggression increased. See Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985); Morrow, 735 S.W.2d at 911B12. Appellant argues that the other incidents are not probative because they are not similar in nature to the incident in question. We disagree. Similarity is relevant to probative value, but it is not determinative. See Halliburton, 528 S.W.2d at 219. When the defendant=s identity is at issue, a high degree of similarity is required, but in intent cases, such as when self-defense is the issue, the degree of similarity required is much less. See Plante v. State, 692 S.W.2d 487, 492B93 (Tex. Crim. App. 1985); Johnson, 932 S.W.2d at 302; Morrow, 735 S.W.2d at 909B11. Here, the extraneous offenses are similar to the charged offense and are therefore probative on the critical point at issue C the appellant=s status as an aggressor. See Plante, 692 S.W.2d at 491. This is consistent with the general principle that when defendant raises self-defense, other acts of violent aggression are relevant to show intent. See Halliburton, 528 S.W.2d at 219; Johnson, 932 S.W.2d at 302; Robinson, 844 S.W.2d at 929.
All four of the Montgomery-Mozon factors weigh in favor of admissibility. We also note that the trial court gave an appropriate limiting instruction, as requested by appellant, which further diminished the prejudicial impact of the evidence. Morrow, 735 S.W.2d at 912. Thus, the trial court did not abuse its discretion in admitting the extraneous-offense evidence concerning appellant=s prior acts of violent aggression. We overrule appellant=s first, second, third, and fourth points of error.
Lesser-Included Offense Instruction
In his fifth point of error, appellant contends the trial court erred in refusing to grant his requested charge on misdemeanor assault, a lesser-included offense. The State=s theory was that appellant threatened Sydenstricker with a deadly weapon, the metal pipe. Appellant contends that he was entitled to the charge because of evidence that (1) he did not hit Sydenstricker, (2) he intended only to scare Sydenstricker, and (3) Sydenstricker did not feel threatened.[4]
A two-prong test applies to determine if a defendant is entitled to a lesser-included offense instruction. First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001). A person commits an assault if he intentionally or knowingly threatens another with imminent bodily injury. See Tex. Pen. Code Ann. ' 22.01(a)(2) (Vernon Supp. 2004). An assault becomes aggravated if, inter alia, the actor Auses or exhibits a deadly weapon during the commission of the assault.@ See Tex. Pen. Code Ann. ' 22.02(a)(2) (Vernon Supp. 2004). Here, there is no dispute that assault is within the proof necessary to establish the offense of aggravated assault. See Moreno v. State, 38 S.W.3d 774, 778 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Thus, we consider only whether there is some evidence in the record that if appellant is guilty, he is guilty only of the lesser-included offense.
The officer on the scene testified that the metal pipes involved in the altercation could cause death if used for a blow to the head. Appellant admitted that the pipe he wielded could be a deadly weapon. Appellant=s evidence that he only intended to scare Sydenstricker with this deadly weapon does not establish that if he was guilty, he was guilty only of the offense of assault.[5] In other words, appellant has no evidence negating the factor that aggravated his assault, namely, using or exhibiting a deadly weapon. Because that evidence would not allow the jury to find that he was guilty of only assault and not aggravated assault, appellant was not entitled to a misdemeanor assault instruction. We overrule point of error five.
Having overruled appellant=s points of error, we affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed August 10, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant filed an original and four amended briefs. The clerk of this court granted appellant leave to file the first and second amended briefs, each of which contained the same points of error. Appellant attempted to file a third amended brief, which contained an improper typeface, and a fourth amended brief, which corrected this problem. However, the third and fourth amended briefs contained an additional point of error not in any of the previous briefs. Appellant did not request leave to raise this new point of error, long after the State=s brief was filed, and therefore it is not properly before this court. See Randle v. State, 878 S.W.2d 318, 319 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (citing Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990)). Accordingly, we do not address the second point of error raised by appellant in his fourth amended brief, in which he asserts ineffective assistance of counsel.
[2] The trial court provided a limiting instruction to the jury.
[3] An appellate court will only conduct the second part of this analysis if, as here, the opponent made a specific objection to the extraneous-offense evidence based on prejudice. Montgomery, 810 S.W.2d at 389.
[4] Sydenstricker testified that he did in fact feel threatened by appellant. However, that contradicted an affidavit he signed before trial. Sydenstricker said he did not read this portion of the affidavit, which he said he thought he was signing to Asettle@ the case. It had apparently been drafted by appellant=s father, an attorney, who approached Sydenstricker=s employer (whose truck had been damaged in the altercation) to Asettle@ the case. We find appellant was not entitled to a lesser-included offense instruction, even considering this questionable evidence, because that would not allow the jury to find that he was guilty of only assault and not aggravated assault.
[5] Appellant cites old cases for the theory that he is guilty of assault and not aggravated assault if he only intended to scare and not injure Sydenstricker, even if using a deadly weapon to do so. See, e.g., Crowley v. State, 146 Tex. Crim. 269, 271, 174 S.W.2d 321, 322 (1943). The Penal Code has been amended several times since then, and under the current version, threatening another with a deadly weapon is clearly aggravated assault. See Tex. Pen. Code Ann. '' 22.01(a)(2), 22.02(a)(2); Ponce v. State, 127 S.W.3d 107, 109 (Tex. App.CHouston [1st Dist.] 2003, no pet.).