pd-1589-15
PD-1589-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/8/2015 11:13:49 AM
Accepted 12/10/2015 5:22:16 PM
ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals of Texas
Cause No. 14-14-00449-CR
In the
Court of Appeals for the Fourteenth District of Texas
at Houston
Cause No. 0924378
In the 180th District Court
Of Harris County, Texas
ROGELIO MORA
Appellant
v.
THE STATE OF TEXAS
Appellee
PETITION FOR DISCRETIONARY REVIEW
Casey Garrett
4010 Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Casey.garrett@sbcglobal.net
December 10, 2015
IDENTITY OF PARTIES AND COUNSEL
Appellant: Rogelio Mora
Counsel for Appellant at Trial:
Rudy Morin Duarte
2016 Main Street, Ste 103
Houston, Texas 77002
Texas Bar No. 06144140
713-650-1240
Counsel for Appellant on Appeal:
Casey Garrett
4010Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Counsel for the State at Trial:
Mary McFaden
Texas Bar No. 24036822
Lauren Bard
Texas Bar No. 24058398
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002
713-755-5800
Counsel for the State on Appeal:
Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002
(713)755-5800
Trial Judge: The Honorable Carroll E. Wilborn
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT REGARDING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF PROCEDURAL HISTORY 5
QUESTION PRESENTED FOR REVIEW 6
REASONS FOR REVIEW 6
PRAYER 12
CERTIFICATE OF SERVICE 13
INDEX OF AUTHORITIES
Cases
Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009) 7
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) 9
Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) 7
Montgomery v. State, 810 S.W.3d 372 (Tex. Crim. App. 1990) 7
Prince v. State, 192 S.W.3d 49 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref d) 8, 10
STATEMENT REGARDING ORAL ARGUMENT
Mr. Mora does not request oral argument.
STATEMENT OF THE CASE
Mr. Mora was charged by indictment with the felony offense of capital
murder (C.R. 9). In particular, Mr. Mora was charged with causing the death of
Prisileano Rodriguez by shooting him with a deadly weapon, namely a firearm,
while in the course of committing and attempting to commit a robbery (C.R. 9).
Mr. Mora pled not guilty (R.R.2 - 11). The case was tried before a jury and the
jury found Mr. Mora guilty as charged in the indictment (C.R. 123). Punishment
was automatically set at confinement for life without parole in the Texas
Department of Criminal Justice, Institutional Division (C.R. 123-125). Mr. Mora
timely filed notice of appeal (C.R. 125).
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals filed a memorandum opinion affirming the
conviction on October 22, 2015. No motion for rehearing was filed.
Pursuant to Rule 68.2 of the Texas Rules of Appellate Procedure, this
Petition for Discretionary Review should be filed thirty days after the day
the court of appeals filed its opinion. A motion for extension of time was
filed within fifteen days of the due date.
QUESTION PRESENTED FOR REVIEW
If a defendant is living out of the country for more than a decade
and there is no evidence to suggest that he fled to the home of his
parents but rather the evidence merely showed his family history
and origin is from another country, does a trial court err in
allowing the State to present highly prejudicial testimony about his
pursuit and arrest even though this evidence is insufficiently
probative?
REASONS FOR REVIEW
The decision of the court of appeals conflicts with
applicable decisions of the Court of Criminal Appeals
and the Supreme Court of the United States.
APPELLANT'S QUESTION FOR REVIEW
If a defendant is living out of the country for more than a decade
and there is no evidence to suggest that he fled to the home of his
parents but rather the evidence merely showed his family history
and origin is from another country, does a trial court err in
allowing the State to present highly prejudicial testimony about his
pursuit and arrest even though this evidence is insufficiently
probative?
In an effort to shore up its insufficient evidence, the State presented
evidence that Mr. Mora left the jurisdiction and went to Mexico during an
investigation into the death of the complainant. Although nothing in the record
supports this conclusion, the State introduced the evidence in an attempt to suggest
that Mr. Mora must have fled to Mexico or, alternatively, to suggest that Mr. Mora
must be a an outsider or a person of bad character because he was seen in
Matamoros and Matamoros has become "a major place for cartel activity over the
past few years." (R.R.5 - 15). Counsel for the defense objected to the introduction
of this evidence under Rules 404(b) and 403 of the rules of evidence.
When an appellant challenges the trial court's admission of evidence, the
appellate court reviews the decision under an abuse of discretion standards. See
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). The test for abuse
of discretion is whether the trial court acted without reference to any guiding rules
or principles. Montgomery v. State, 810 S.W.3d 372, 380 (Tex. Crim. App. 1990).
A reviewing court applying the abuse of discretion standard should not reverse a
trial judge's decision whose ruling was within the zone of reasonable
disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
Under Rule 404(b), evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. Tex. Rules Evid. 404 (b). It may be admissible if it is relevant to non-
character conformity facts, such as establishing motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident. Id.
The court below relied on opinions establishing that evidence of flight is
admissible as a circumstance from which an inference of guilt may be drawn. See
Mem. Op. 7, citing Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994)
and Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994). This reliance
was misplaced. As the court of appeals acknowledged, the evidence showed that
Officer Robert King testified that he went to serve an arrest warrant on appellant
in September 2002 but Mr. Mora was not at the residence where the police
believed he was living. (Mem. Op. 7). Eight years later, U.S. Marshal Max Pinon
located Mr. Mora in Matamoros, Mexico. (Mem. Op. 7). The mere fact that Mr.
Mora was not living where the police believed he was living, however, coupled
with the fact that a U.S. Marshal located him nearly a decade later in Mexico, does
not establish "flight." The court concluded that "testimony that appellant left his
job in June 2002 and moved to Mexico sometime shortly thereafter was relevant
circumstantial evidence from which the jury could infer that appellant committed
the crime and sought to avoid arrest." (Mem. Op. 8). The court is mistaken.
Testimony that a potential investigation target has left a job or is no longer
employed is not evidence of anything. There was no testimony about why he left
the job, whether he'd been fired or quit, what kind of job it was, whether he had a
better opportunity at a different job or what reasons he gave for leaving the job.
Moreover, the evidence did not show that he moved to Mexico "sometime shortly
thereafter." Rather, the evidence showed he was found in Mexico nearly a decade
later.
Even if evidence may be admissible under Rule 404(b), it may nevertheless
remain inadmissible under Rule 403 if the probative value of such evidence is
substantially outweighed by unfair prejudice. Prince v. State, 192 S.W.3d 49, 56
(Tex. App.—Houston [14th Dist.] 2006, pet. ref d). In conducting a Rule 403
analysis, the following factors should be taken into consideration: (1) the inherent
probative force of the proffered evidence; (2) the proponent's need for that
8
evidence; (3) any tendency of the evidence to suggest decision on an improper
basis; (4) any tendency of the evidence to confuse or distract; (5) any tendency of
the evidence to be given undue weight by a jury; and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.w.3d 637, 641-42
(Tex. Crim. App. 2006).
In the instant case, the State attempted to buoy up a very slender thread of
identification evidence with character evidence about Mr. Mora's alleged flight to
Matamoros, Mexico. The evidence at issue came down to a police officer
testifying they "had information" he was "not living in Harris County" after Kelly
Holloway identified him from a photo array (R.R.4 - 307), a U.S. Marshal
suggesting that Mr. Mora is a U.S. citizen with parents from Mexico (R.R.5 - 17)
and an assertion from the U.S. Marshal that deportation was unsuccessful (R.R.5 -
19). The U.S. Marshal threw in extra facts such as, "deportation was unsuccessful
because the immigration agents in Matamoros were too scared to go and look for
Mr. Mora" (R.R.5 - 19) and "over the last few years, Matamoros had been a major
place for cartel activity" (R.R.5 - 15), despite the fact that there was nothing else
during the trial to indicate anyone was involved in a drug cartel, and nothing to
indicate Mr. Mora had illegal business in Matamoros. This evidence was
obviously intended to sway the jury into a conviction based on the shadowy idea
that Mr. Mora was involved in Mexican drug cartels, and therefore must have been
responsible for the shooting of P.J., even though the events on the night P.J. was
shot had nothing to do with drugs or drug cartels.
Even if the trial court concluded that the evidence was admissible under
404(b) as something other than character evidence, the evidence fails the test
under 403. The trial court put nothing on the record with regard to these factors. In
fact, the judge initially granted the defense motion in limine and then inexplicably,
without argument or explanation, reversed itself (C.R. 98, R.R.4 - 8). Reviewing
the 403 factors, however, the only conclusion is that the evidence was highly
prejudicial and any probative value was outweighed by unfair prejudice. See
Prince v. State, 192 S.W.3d 49, 56 (Tex. App.—Houston [14th Dist.] 2006, pet.
refd).
Considering the first two factors, the evidence the State used to paint a
picture of Mr. Mora as a drug cartel member who fled to Mexico was potentially
probative because the State had no other evidence linking Mr. Mora to the
shooting and no other motive or circumstances to point to regarding Mr. Mora's
involvement. Under the second prong, the State needed the evidence because its
case regarding Mr. Mora's identity as the perpetrator was otherwise weak and
insufficient. The State should not be rewarded for going to trial with weak
identification evidence, however, and the fact that the State's own case was weak
and hard to substantiate should not give it an advantage in the weighing of factors
under Rule 403. The third factor is whether the evidence tended to suggest a
decision on an improper basis, and the evidence was plainly prejudicial under this
10
test. The State gave the jury a shadowy demon from the news media, Mexican
drug cartel members, and grafted this image onto Mr. Mora to persuade them to
convict with otherwise limited evidence. Likewise, evidence about the State's
pursuit of Mr. Mora in Mexico and evidence from a U.S. Marshal about the
history and character of Matamoros, the difficulty of extraditing U.S. citizens with
Mexican parents, and the corruption and fear of Mexican immigration officials had
a high likelihood of distracting and confusing the jury in a case about a simple
robbery and murder on American soil. Factors five and six also weigh against the
State, as no special instructions or information was given to the jury about
evaluating the probative force of the evidence and the presentation of the evidence
needlessly extended the length of the trial and made the State's evidence seem
weightier and more complete than it was.
The appellate court justified the State's weaknesses in each of these five
categories by pointing to the State's interest in explaining the lapse of time
between the crime and Mr. Mora's arrest. This one interest, however, was not
sufficient to overcome the prejudicial effect of the evidence.
Defense counsel objected to this evidence and the State should not have
been allowed to use it. The use of this confusing, highly prejudicial evidence gave
the jury a reason to convict Mr. Mora in the absence of sufficient evidence to show
he killed P.J. The trial court's decision was outside the reasonable zone of
disagreement and this Court should reverse and remand for a new trial.
11
PRAYER
Appellant respectfully prays this Honorable Court to grant his petition
for discretionary review.
Respectfully submitted,
Isi Casey Garrett
Casey Garrett
4010 Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Casey.garrett@sbcglobal.net
12
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent
through the e-file system to the following party:
Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002
_/s/ Casey Garrett_
Casey Garrett
4010 Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Casey.garrett@sbcglobal.net
13
In the
Court of Criminal Appeals of Texas
Cause No. 14-14-00449-CR
In the
Court of Appeals for the Fourteenth District of Texas
at Houston
ROGELIO MORA
Appellant
v.
THE STATE OF TEXAS
Appellee
CERTIFICATE OF COMPLIANCE
Casey Garrett
4010 Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Casey.garrett@sbcglobal.net
This is to certify that the Petition for Discretionary Review filed in
the above-numbered cause has 2,194 words in compliance with Rule 9 of
the Texas Rules of Appellate Procedure.
Respectfully submitted,
Is/ Casey Garrett
Casey Garrett
4010 Bluebonnet, Ste. 204
Houston, Texas 77025
(713)228-3800
Texas Bar No. 00787197
Casey.garrett@sbcglobal.net
Affirmed and Memorandum Opinion filed October 22, 2015.
In The
iffourtantfr, Court of Appeals
NO. 14-14-00449-CR
ROGELIO MORA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 924378
MEMORANDUM OPINION
A jury convicted appellant Rogelio Mora of capital murder, and he was
sentenced to life in prison. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp.
2014). In two issues, appellant contends that: (1) the evidence was legally
insufficient to support his conviction; and (2) the trial court abused its discretion in
allowing the admission of evidence that appellant fled to Mexico after the murder
and was arrested there 10 years later. We affirm.
Background
Complainant Prisileano "PJ" Rodriguez was riding in a truck with three
friends in the early morning hours on May 19, 2002. When they arrived at the
complainant's apartment complex to drop him off, a man ran in front of the truck
and demanded that they stop. The man then banged on the driver's window with a
pistol and told the driver to open his door. The driver complied and got out, at
which point another man approached; the two men proceeded to go through the
driver's pockets and repeatedly kick the driver.
A Hispanic male approached the passenger side door while this was going
on and banged on the passenger window with a pistol, demanding that complainant
get out of the truck. Complainant complied.
After finding nothing of value in the driver's pockets, the two men on the
driver's side told the driver to get back in the truck. The driver entered the truck
and put it in gear. The driver ducked and took his foot off the clutch after hearing
a gunshot, and the truck started driving away.
Kelly Holloway was a passenger in the truck sitting in the backseat on the
floor facing the passenger side. When the first gunshot went off and the truck
started driving away, she looked out the rear window and saw the third man shoot
complainant several times.
Information from an informant provided the investigating officer with names
of individuals thought to be involved in the crime, including appellant's name.1
The officer included a picture of appellant in one of the photo arrays he showed to
the three truck occupants who had been riding with complainant. Holloway
The informant, Antonio Moreno, was described as an acquaintance of the appellant.
Moreno did not testify at trial, and it is unclear how he knew that appellant and the other
individuals were involved with the crime.
immediately identified appellant as the man who shot complainant after viewing
multiple photo arrays featuring more than 20 Hispanic males.
A probable cause warrant was issued for appellant and was executed on
September 16, 2002. Appellant could not be located at his previous residence and
officers learned that he had left his job in June. Appellant was located in
Matamoros, Mexico in 2010; he was arrested there in 2012 and returned to U.S.
custody. Appellant was tried in May 2014, and was convicted by a jury of capital
murder. Punishment was set at confinement for life without parole. This appeal
followed.
Analysis
I. Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence
establishing his identity. Appellant contends that the only evidence linking
appellant to the crime was an identification by a single eyewitness based on a brief
encounter, which appellant contends was insufficient to support the conviction.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single legal
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See
Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
2 The driver testified that he never saw the man on the passenger side. The other
occupant in the back seat was sitting in a fold-down jump seat that faced the driver's side of the
vehicle; he also did not see the third individual on the passenger side. Both separately identified
from photo arrays the two other individuals named by the informant as the two men on the
driver's side.
In determining whether the evidence is legally sufficient to support a
conviction, we view the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences from it, whether
any rational factfinder could have found the elements of the offense beyond a
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); see
also Jackson, 443 U.S. at 319. The jury is the exclusive judge of the credibility of
witnesses and the weight to be given to the evidence, and we do not re-evaluate the
weight and credibility of the evidence and substitute our judgment for that of the
jury. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
B. Discussion
To establish the offense of capital murder, the State had to prove that
appellant (1) intentionally caused the death of complainant, (2) while in the course
of committing or attempting to commit robbery. See Tex. Penal Code Ann. §
19.03(a)(2). On appeal, appellant challenges only the sufficiency of the evidence
regarding the identity of the person committing the offense; appellant does not
challenge the sufficiency of the evidence demonstrating intent or that the murder
occurred during the course of a robbery.
The testimony of a single eyewitness can be sufficient to support a
conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); see also
Walker v. State, 180 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.] 2005, no
pet.); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.]
2005, pet. ref d). Likewise, the jury alone weighs the evidence, and it may find
guilt without physical evidence linking the accused to the crime. Bradley v. State,
359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist] 2012, pet. refd).
Inconsistencies in witness testimony do not render the evidence insufficient.
Romero v. State, 406 S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.] 2013),
rev 'd on other grounds, 427 S.W.3d 398 (Tex. Crim. App. 2014) (per curiam).
Holloway was the only truck occupant who saw appellant's face. Holloway
testified that, while the driver was being pulled out of the truck, appellant came up
to the passenger side door and hit the window with a pistol demanding that
complainant "[o]pen up the door" and "get out of the car." Holloway stated that
her attention was focused toward the passenger side during the encounter, and that
she "stayed down and just paid attention to what [she] could see directly in front of
[her]."
Holloway testified that, as complainant was getting out of the truck, she
watched appellant yank the necklace from complainant's neck. Appellant then
leaned into the truck and demanded money from the occupants; appellant's head
was inside the truck for five to ten seconds. Holloway testified that the streetlights
were on so she got a good look at appellant's face. She also testified that she could
see appellant's face as he was walking up to the truck, "[s]o, it was more than just
five or ten [seconds] that [she] saw his face."
Holloway testified that the driver got back into the truck, and, as the truck
started driving away, she heard the first shot and turned to look out the back
window. She then saw appellant shoot complainant several times. Although she
could not see appellant's face as he was shooting complainant, Holloway testified
that she was "absolutely sure" it was the same person she had seen as he walked
towards the truck and leaned into the truck.
At trial, Investigator Richard Martinez testified that he showed Holloway
multiple photo arrays. When Martinez showed Holloway a photo array with
appellant's photo, Holloway "immediately picked out [appellant] and said that that
was the person who she saw shoot her friend PJ." Martinez testified that Holloway
5
picked out appellant's photo with no hesitation. Likewise, Holloway testified that
her identification of appellant was immediate, and that she identified appellant
without hesitation.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a reasonable juror could find that appellant committed the offense of capital
murder. See Aguilar, 468 S.W.2d at 76-77 (evidence legally sufficient where only
one witness saw appellant shoot victim); In re D.R.T., 339 S.W.3d 208, 210 (Tex.
App.—El Paso 2011, no pet.) (testimony by single witness that appellant was only
three to four feet away from witness in adjacent vehicle and had his head out the
window prior to shooting, along with photo and in-court identifications, was
sufficient to support conviction); Walker, 180 S.W.3d at 831-33 (where robbery
lasted less than a minute and perpetrator was wearing a hood, evidence was legally
sufficient to support conviction even though based on single witness's
identification because witness testified that he had studied the perpetrator's face
and had seen it clearly, and identified the perpetrator in a photo array and in court).
Appellant's first issue is overruled.
II. Admission of Evidence
In his second issue, appellant contends the trial court abused its discretion in
allowing the admission of evidence that appellant fled to Mexico after the murder
and was arrested there 10 years later. Appellant contends that the probative value
of such evidence was outweighed by its highly prejudicial nature.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence, as well as
its decision as to whether the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice, for an abuse of discretion. Martinez
v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). An abuse of discretion
only occurs if the trial court's determination lies outside the zone of reasonable
disagreement. Id.
B. Discussion
Evidence of flight is admissible as a circumstance from which an inference
of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994); Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994). However,
before such evidence is admitted it must appear that the evidence has some
relevance to the offense under prosecution. Bigby, 892 S.W.2d at 883; Burks, 876
S.W.2d at 903. Evidence of flight may be "relevant to show efforts made to locate
or apprehend a defendant, his pursuit and capture, [and] circumstances of his arrest
. . . ." Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987). Once this
relevancy requirement is met, evidence of flight to avoid arrest is admissible unless
the defendant shows that the flight was related to circumstances unrelated to the
charged offense. Bigby, 892 S.W.2d at 883; Burks, 876 S.W.2d at 903.
At trial, Officer Robert King testified that he went to serve an arrest warrant
on appellant in September 2002. Appellant was not at the residence where he was
believed to be living, and subsequent investigation revealed that appellant had left
his job in June 2002 and that he was not living or working in Harris County. The
case remained dormant until U.S. Marshal Max Pinon received a tip in November
2010 that appellant was in Matamoros, Mexico. Pinon testified that, after
unsuccessfully seeking both deportation and extradition of appellant from Mexico,
Pinon had a deputy marshal in Mexico City travel to Matamoros and confirm
appellant's location. The deputy marshal then obtained assistance from the
Mexican Marines to apprehend appellant in August 2012. Appellant was turned
over to the Mexican immigration service in Matamoros. Cameron County
Sheriffs Deputy Andres Arreola testified that he received custody of appellant at
the U.S. border in September 2012, and that appellant was transferred to Harris
County.
The testimony that appellant left his job in June 2002 and moved to Mexico
sometime shortly thereafter was relevant circumstantial evidence from which the
jury could infer that appellant committed the crime and sought to avoid arrest, and
was therefore admissible. See Burks, 876 S.W.2d 877, 903-04 ("Since appellant
was already identified as a suspect in the case, his flight when confronted by the
police was relevant to the issue of whether or not he committed the instant
crime."); Martinez v. State, 140 S.W.2d 187, 193 (Tex. Crim. App. 1939)
(evidence of flight was admissible where, "a short time after the disappearance of
the deceased person and his wife, ... the appellant disposed of his automobile and
fled to Mexico, where he remained for a period of practically two years ..."). The
testimony also was relevant to explain why trial was taking place 12 years after the
murder, and to illustrate the efforts made to locate and apprehend appellant. See
Cantrell, 731 S.W.2d at 92.
Once the testimony concerning appellant's flight to Mexico and subsequent
arrest there was determined to be relevant, the burden shifted to appellant to
affirmatively show that his sudden departure to Mexico was not connected with the
offense at trial. See Bigby, 892 S.W.2d at 883; Burks, 876 S.W.2d at 903.
Appellant made no effort to provide any such explanation.
Appellant further contends on appeal that the testimony should have been
excluded even if relevant because its probative value was substantially outweighed
by a danger of unfair prejudice. See Tex. R. Evid. 403. A proper Rule 403
analysis includes, but is not limited to, the following factors: (1) the inherent
probative force of the proffered evidence; (2) the proponent's need for that
evidence; (3) any tendency of the evidence to suggest decision on an improper
basis; (4) any tendency of the evidence to confuse or distract the jury from the
main issues; (5) any tendency of the evidence to be given undue weight by a jury
that has not been equipped to evaluate the probative force of the evidence; and (6)
the likelihood that presentation of the evidence will consume an inordinate amount
of time or merely repeat evidence already admitted. Gigliobianco v. State, 210
S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Regarding the first factor, appellant admits that the testimony was
potentially probative, but only "because the State had no other evidence linking
[appellant] to the shooting and no other motive or circumstances to point to
regarding [appellant's] involvement." This analysis ignores the testimony's
probative value in explaining the lapse of time between the murder and trial.
Appellant likewise concedes the State's need for the testimony, but contends
that the necessity was the result of otherwise weak and insufficient evidence
establishing appellant's identity as the assailant who shot complainant. However,
this argument again ignores the testimony's value in establishing a timeline for the
events leading up to appellant's arrest and trial.
Regarding the third factor — the tendency of the evidence to suggest a
decision on an improper basis — appellant argues that the testimony suggested
appellant "must be an outsider or a person of bad character" because of testimony
by U.S. Marshal Pinon that the city in Mexico where appellant was arrested "has
been a major place for cartel activity" over the past few years. However, no
testimony was presented that appellant was involved in any cartel activity. To the
contrary, Deputy Arreola testified that appellant was not the subject of any known
criminal investigation in Cameron County or Matamoros at the time of his arrest,
and that Arreola would have known had he been under investigation.
Regarding the fourth factor, appellant contends that testimony regarding the
State's pursuit of appellant in Mexico, the history and character of Matamoros, the
difficulty of extraditing U.S. citizens with Mexican parents, and the corruption and
fear of Mexican immigration officials was likely to confuse or distract the jury.
This testimony explained the State's difficulty in arresting appellant in Mexico,
which in turn explained the two-year span between appellant's location in Mexico
and his arrest.
Regarding the fifth factor, appellant contends that the testimony was likely
to be given undue weightby a jury because no limiting instruction was given to the
jury. However, appellant neither requested such a limiting instruction nor objected
to its omission from the jury charge.
Finally, appellant contends that the testimony "needlessly extended the
length of the trial and made the State's evidence seem weightier and more
complete than it was." Reviewing the testimony, we cannot conclude that the
testimony consumed an inordinate amount of time or merely repeated evidence
already admitted. The testimony accounted for a small portion of the total trial
testimony, did not repeat the testimony of other witnesses, and was elicited from
only two of the State's eleven witnesses.
Reviewing all of the factors, we conclude that the trial court did not abuse its
discretion in allowing testimony concerning appellant's flight to Mexico and
subsequent arrest there. We overrule appellant's second issue.
10
Conclusion
We overrule appellant's two issues and affirm the judgment of the trial
court.
Isi William J. Boyce
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish —Tex. R. App. P. 47.2(b).
11
October 22, 2015
JUDGMENT
(Pje Jfaurtecntlj Court of Appeals
ROGELIO MORA, Appellant
NO. 14-14-00449-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance.