Affirmed and Memorandum Opinion filed May 22, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00234-CR
NO. 14-06-00235-CR
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ARTURO IRLAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause Nos. 04CR0183 & 04CR0184
M E M O R A N D U M O P I N I O N
Challenging his convictions for aggravated assault and manslaughter, appellant Arturo Irlas contends the trial court abused its discretion in admitting evidence of extraneous offenses. He also complains about the law enforcement investigation of the vehicular collision that formed the basis of the charges against him. We affirm.
I. Factual and Procedural Background
Appellant was charged by indictment with the aggravated assault of his common-law wife, Devina Garcia, and the murder of her companion, Santana Trigo. The deadly weapon identified in the indictment was appellant=s automobile. Appellant was driving behind Garcia=s truck when he rear-ended her, striking the right corner of the vehicle and causing it to crash into a large oak tree, which injured Garcia and killed Trigo, who was a passenger in her truck at the time of the collision.
Following voir dire, appellant pleaded Aguilty@ to aggravated assault and to a reduced charge of manslaughter, and Atrue@ to the enhancement paragraphs in both cases, which increased the punishment range of each offense to that of a first-degree felony. Appellant waived his right to a jury trial on punishment, opting instead for the court to decide his punishment in both cases.
During the punishment hearing that followed, the State introduced evidence of a threat appellant made to Garcia, and a tape recording of Garcia=s 9-1-1 telephone call. Appellant objected on the basis that these acts were extraneous offenses and, therefore, inadmissible. Although the State had listed both incidents in its extraneous-offense pre-trial notice, the State argued at trial that the acts were not extraneous offenses because they were part of the same transaction that led to appellant=s conduct the morning of the deadly collision. Appellant sought a hearing to determine whether the State=s notice was timely and whether the State had sufficient proof of these offenses. The trial court concluded that the State=s notice was timely and that, because the case was before the trial court and not a jury, no separate hearing was necessary. The trial court further stated that it could Acompartmentalize that evidence,@ and reserve its judgment until all of the evidence was heard. At the conclusion of the punishment hearing, the trial court sentenced appellant to thirty years= confinement in both causes, with the sentences to run concurrently.
II. Issues and Analysis
A. Admission of Extraneous-Offense Evidence
In his first issue, appellant contends the trial court erred in admitting evidence of extraneous offenses. More specifically, within this issue, appellant raises three separate sub-issues: (1) the trial court erred in admitting evidence of the threat to kill Garcia, (2) the State=s notice of its intent to use extraneous offenses was untimely, and (3) the trial court erred in failing to conduct a preliminary hearing on admissibility of the extraneous offenses. We address each sub-argument separately.
Although appellant contends the trial court erred in admitting extraneous offenses, he offers argument with respect to only one offenseCthe alleged threat made by appellant to Garcia shortly before the collision.[1] This evidence came from two sources: (1) the 9-1-1 tape of Garcia calling from her vehicle to report that appellant was chasing her down and rear-ending her vehicle with his own, and that he had threatened to kill her, and (2) Garcia=s testimony that the evening before the collision, appellant called her and threatened her life with the following statement: AVina, I hope you got fC in the aB, because when you walk out in the morning, you=re dead.@
Several months before trial, appellant=s trial counsel had requested the State give notice of its intent to introduce extraneous-offense evidence at trial. More than six months later, the State provided its notice which included a list of eleven extraneous offenses it planned to introduce. The trial court conducted a pretrial hearing at which time appellant urged several motions in limine in regard to the admissibility of the extraneous offenses. At trial, the State sought to introduce evidence of appellant=s phone call to Garcia, as well as a phone call by Garcia to the police,[2] both of which were identified before trial and show that on the night of the deadly collision, appellant threatened Garcia=s life. Appellant=s counsel objected to the use of this evidence, stating that the incidents had not been proved and that they were not adjudicated offenses. On appeal, the State contends this evidence did not amount to extraneous-offense evidence because the acts in question were part of the same transaction.
We review a trial judge=s decision to admit or exclude evidence under an abuse-of- discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Absent an abuse of discretion, we do not disturb a trial judge=s ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). We view the evidence in the light most favorable to the trial judge=s ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex. Crim. App. 2002).
When extraneous‑offense evidence is indivisibly connected to the charged offense, it may be admissible to provide context for the offense. Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App.1992); Mayes v. State, 816 S.W.2d 79, 86B87 n.4 (Tex. Crim. App. 1991). Likewise, when an offense is one continuous transaction, or is closely interwoven with the case on trial, proof of all such facts is proper. Mayes, 816 S.W.2d at 86. This result follows because evidence of this nature is admissible to show the context in which the criminal act occurred. Id. This context permits the trier of fact to realistically evaluate the evidence because Acrimes do not occur in a vacuum.@ Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). We conclude that appellant=s threat against Garcia was admissible as same-transaction contextual evidence to show one continuous episode and to help the jury understand the context and background in which the events transpired. See Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005) (concluding that the extraneous-offense evidence Afills in gaps of the interwoven events and consequences of [the co‑conspirators=] criminal conduct and thus helps the jury to understand the case in context@); see also Tex. Code Crim. Proc. Ann. art. 37.07(3)(a)(1) (Vernon Supp. 2005) (concluding that A[r]egardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried@). Therefore, the trial court did not abuse its discretion in admitting this evidence.
In his second argument, appellant seems to contend that the State=s notice of its intent to use extraneous offenses was untimely. During the pretrial motion hearing, appellant objected that the State=s notice was untimely, but deferred argument on this point to a later date, stating that he would argue whether the timeliness was sufficient when it came up during the trial. The trial court correctly recognized this objection as a pretrial motion in limine. Appellant did not request or receive a ruling on this motion. During the punishment trial, appellant raised this objection again, and the trial court sustained it. Appellant=s pretrial motion in limine did not preserve error, and when appellant raised the objection again, the trial court issued a favorable ruling. After the trial court sustained appellant=s objection, appellant did not make any further objection. Appellant received no adverse ruling. Thus, as to this argument, we conclude that appellant has not preserved any error for appeal. See Turner v. State, 719 S.W.2d 190, 194 (Tex. Crim. App. 1986) (concluding that to preserve error for review the defendant must object until receiving an adverse ruling).
In his final argument, appellant contends the trial court erred in failing to conduct a preliminary hearing regarding the admissibility of the extraneous offenses. Appellant argues that Texas Rule of Evidence 404(b) requires the trial court to conduct a formal oral hearing to determine the admissibility of extraneous-offense evidence. During the pretrial motion hearing, appellant made a motion in limine urging the trial court to exclude all evidence of the extraneous offenses listed in the State=s notice. He further urged the trial court to rule that if the State intended to introduce evidence of any of these offenses at trial, it would conduct a hearing to determine whether the offenses are supported by evidence beyond a reasonable doubt. The trial court, however, made no ruling at that time and appellant voiced no objection to the court=s failure to rule. Later, during the punishment hearing, when the State attempted to introduce evidence of the offenses, appellant again objected, stating that the trial court should conduct a preliminary hearing to resolve the matter. The trial court overruled appellant=s objection and stated that because the trial was to the court, the hearing was effectively being held during trial. The trial court explained that it would be able to evaluate all of the evidence and determine what evidence met the beyond-a-reasonable -doubt standard.
There is no requirement that the trial court hold a formal hearing on the admissibility of extraneous-offense evidence during a bench trial. See Welch v. State, 993 S.W.2d 690, 697 (Tex. App.CSan Antonio 1999, no pet.) (holding that admissibility of extraneous offenses did not require a hearing at the punishment phase of proceedings). Instead, the trial court may make the determination as to admissibility based on evidence presented without conducting a formal hearing. Thus, we conclude that appellant=s argument lacks merit.
Having rejected all of appellant=s arguments under this issue, we overrule his first issue.
B. Investigation of the Collision
In his second issue, appellant states that the investigation conducted by the Galveston County Sheriff=s Department was inadequate, incomplete, and negligent. Appellant contends that investigators had a duty to investigate the deadly collision thoroughly and that they breached this duty, which caused him to suffer damages in the form of his Aloss of freedom.@ Appellant appears to be advancing arguments typically made in a civil context. He has not cited any legal authorities to support or explain how this type of claim would be cognizable in criminal proceedings.[3]
An appeal is wholly frivolous and without merit when it Alacks any basis in law or fact.@ McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they Acannot conceivably persuade the court.@ Id. at 436; Stafford v. State, 813 S.W.2d 503, 509B11 (Tex. Crim. App. 1991). We conclude that appellant=s second issue is not based on arguable grounds, and lacks merit in the context of these appeals from criminal convictions. Moreover, even if this claim were cognizable in the context of an appeal from criminal convictions, we could find no merit in it because appellant failed to preserve error by raising these matters in the trial court. He also waived his complainant by failing to support his arguments with proper legal authority. [4] See Tex. R. App. P. 38.1. For all of these reasons, we overrule his second issue.
The trial court=s judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 22, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Because appellant offers no arguments as to any of the other offenses listed in the State=s notice, we conclude that any error in the admission of these offenses was not preserved. See Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2001) (concluding that when a [defendant] fails to discuss the argument on appeal, he presents nothing for review). Thus, in this appeal, we do not address any of the other extraneous offenses listed in the State=s notice.
[2] The State filed an amended notice approximately three days prior to trial, but this amended notice did not add any new offenses and only corrected some clerical mistakes.
[3] Appellant relies on two cases, one of which he cites to the concurring opinion, and the other is a wrongful-death action in a civil case. See Rodriguez v. State, 191 S.W.3d 428, 462 (Tex. App.BCorpus Christi 2006, pet. ref=d) (Castillo, J. concurring); City of Sugarland v. Ballard, 174 S.W.3d 259, 266 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (reversing the city=s plea to the jurisdiction on grounds of sovereign immunity). We conclude that neither of these cases supports his argument.
[4] Appellant cites two cases, neither of which are on point.