Memorandum Opinion of November 28, 2006 Withdrawn, Affirmed and Substitute Memorandum Opinion filed January 16, 2007.
In The
Fourteenth Court of Appeals
_______________
NO. 14-05-00807-CR
_______________
VICENTE CARRANZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1014095
S U B S T I T U T E M E M O R A N D U M O P I N I O N
Our opinion issued in this case on November 28, 2006 is withdrawn, and the following opinion is issued in its place. Vicente Carranza appeals a conviction for aggravated assault with a deadly weapon[1] on the grounds that the trial court erred by: (1) admitting evidence of a prior violent crime he committed; (2) refusing to charge the jury on the lesser offense of (non-aggravated) assault; (3) excluding cross-examination pertaining to the complainant=s motive and health history; and (4) excluding evidence concerning the appellant=s post-assault relationship with the complainant. We affirm.
Prior Conviction
Appellant=s first point of error contends that the trial court erred by permitting the State to elicit from him, during the guilt phase of trial, testimony about a prior felony assault conviction because it was: (1) more than ten years old; (2) unduly prejudicial; and (3) not needed to correct any Afalse impression.@ A trial court=s ruling on the admission of evidence is reviewed for abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006) petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 19, 2006) (No. 06-6055). An evidentiary ruling will be upheld if it is correct under any theory of law applicable to the case and supported by the record before the trial court at the time the ruling was made. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
Evidence of a prior conviction is not admissible to attack the credibility of a witness if the conviction is more than ten years old. See Tex. R. Evid. 609(b). However, the evidence appellant challenges was not offered to attack his credibility, but to rebut his testimony that the complainant=s injuries resulted from accidental causes rather than an assault.[2] See Tex. R. Evid. 404(b); Rogers v. State, 105 S.W.3d 630, 633 n.4 (Tex. Crim. App. 2003); Booker v. State, 929 S.W.2d 57, 63 (Tex. App.CBeaumont 1996, pet. ref=d). Because appellant does not demonstrate that the prior conviction was not relevant for that purpose, the complaint that the conviction was more than ten years old presents nothing for our review and is overruled.
Appellant next contends that, regardless of relevance, the prior conviction should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice in that: (1) the probative value of a twenty-two year old case is minimal, and (2) it is unduly prejudicial to allow testimony of a shooting incident when one is on trial for threatening someone with a firearm. Relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Tex. R. Evid. 403. The party opposing admissibility has the burden of showing that the unfair prejudice substantially outweighs the evidence=s probative value. See id.; Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1991); Runnels v. State, 193 S.W.3d 105, 107 (Tex. App.CHouston [1st Dist.] 2006, no pet.). A Rule 403 analysis includes, but is not limited to, consideration of: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
As to the first factor, the prior conviction was probative to rebut appellant=s contention that the complainant=s injuries resulted from an accident. On the second factor, any chance that the jury would be impressed in an irrational way was minimized by the trial court=s limiting instructions, both orally and in the jury charge, to consider the prior conviction only for determining an absence of mistake or accident. On the third factor, the evidence was developed quickly because the prosecutor asked appellant if he had been convicted of the prior offense, to which appellant answered Ayes,@ and then no further inquiry was made. On the fourth factor, the prior conviction was needed because appellant and the complainant were the only two eyewitnesses to the events in question, their testimony conflicted on whether the complainant=s injuries were caused by an accident or an assault, and this was a pivotal fact issue in the case. Under these circumstances, appellant=s first point of error fails to demonstrate that the probative value of the prior conviction was substantially outweighed by a danger of unfair prejudice, and it is overruled.
Lesser Included Offense
Appellant=s second point of error complains that the trial court erred in refusing to charge the jury regarding the lesser offense of (non-aggravated) assault because there was evidence that appellant had repeatedly pushed the complainant=s head into the mattress, but consistent with her affidavit,[3] that he had neither placed a gun in her mouth nor threatened to shoot her.
A defendant is entitled to a charge on a lesser-included offense if: (1) the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). The first prong is met if the elements of the lesser offense are established by proof of the same or less than all the facts required to establish the commission of the charged offense, as alleged in the indictment. Id.; see Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 2006). Thus, while simple assault can be a lesser-included offense of aggravated assault in some cases, a lesser-included offense instruction is not warranted based on different conduct than is alleged for the charged offense because proof of those facts is not required to prove the charged offense and the State could therefore not obtain a conviction on them.[4]
In this case, the indictment alleged aggravated assault by threatening the complainant with a handgun. Appellant contends that there is some evidence he committed only a simple assault by slamming the complainant=s head into a mattress. However, because the indictment did not allege slamming the complainant=s head into a mattress, proof of those facts were not required to convict appellant of the charged offense and would not have supported a conviction under appellant=s indictment. Therefore, the simple assault that appellant relies upon was not a lesser-included offense of the charged assault, and, he was not entitled to an instruction on it.[5] Because appellant=s second point of error thus fails to demonstrate that the trial court abused its discretion in denying his request for a lesser- included offense instruction, it is overruled.
Cross-Examination and Photographs
Appellant=s third and forth points of error challenge the trial court=s refusal to allow cross-examination of the complainant concerning withdrawals she made from his bank account after his arrest and her history of mental health problems. Appellant argues that this cross-examination was relevant to show the complainant=s motive to have him arrested, credibility, and ability to process information. As relevant to this case, a complaint regarding the exclusion of evidence may not be urged on appeal unless the substance of the evidence was made known to the trial court by an offer of proof or bill of exceptions. Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). In this case, because the record contains no offer of proof or bill of exceptions containing the substance of the excluded cross-examination testimony, this complaint presents nothing for our review. Accordingly, appellant=s third and forth points of error are overruled.
Appellant=s fifth point of error challenges the trial court=s refusal to allow: (1) cross-examination of the complainant regarding her relationship with appellant after the alleged assault; and (2) admission of photographs in which the complainant allegedly posed for appellant in a sexually provocative manner. Appellant contends that this evidence was relevant to show the relationship between the parties after the assault, behavior by the complainant that contradicted her stated fear of appellant, and, thus, the improbability of her testimony that he violently attacked and threatened her. The trial court ruled that the photos were Ahighly inflammatory@ and that any probative value of the evidence was far outweighed by the prejudicial effect.
The probative value of evidence regarding whether appellant and complainant continued their relationship after the assault is slight for the purpose of showing whether the alleged assault occurred.[6] In addition, because of the graphically sexual nature of the photos, there was a danger that the jury would unfairly consider them for purposes other than that for which they were offered. In any event, because the record contains no offer of proof or bill of exceptions containing the substance of the testimony that appellant sought to elicit in this regard, this complaint presents nothing for our review. Therefore, his fifth point of error is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Substitute Memorandum Opinion filed January 16, 2007.
Panel consists of Justices Fowler, Edelman, and Frost.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at 14 years confinement.
[2] Appellant testified that the complainant injured the side of her face and elbow accidentally on the morning of the alleged assault when she jumped off the bed and stumbled over a mirror in their bedroom. Appellant also stated that he injured the complainant=s ribs when he slipped while he was attempting to pick her up after she stumbled on the mirror.
[3] About a month after the offense, the complainant executed an affidavit stating that appellant did not assault her and that her injuries resulted from her own clumsiness. At trial, she testified that this affidavit was false and that she signed it only because appellant threatened her. The affidavit was used to impeach the complainant=s testimony, but was not admitted into evidence. In addition, even if it had been admitted into evidence, it would not have been evidence of a lesser-included offense, but that no offense was committed at all. See, e.g., Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
[4] See, e.g., Irving v. State, 176 S.W.3d 842, 845B46 (Tex. Crim. App. 2005) (holding that appellant was not entitled to a simple assault charge for grabbing the victim and falling on top of her where the aggravated assault charged was attacking and hitting the victim with a baseball bat).
[5] See id. at 846.
[6] See, e.g., Mumphrey v. State, 155 S.W.3d 651, 664 n.5 (Tex. App.CTexarkana 2005, pet. ref=d) (holding that evidence of defendant=s and victim=s post-assault reconciliation was not relevant to the issue of whether the assault occurred).