Abel Morales Almaguer v. State

• Court: Court of Appeals of Texas
• Decided: June 12, 2008
• Docket: 14-06-00996-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 12, 2008

Affirmed and Memorandum Opinion filed June 12, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00996-CR

ABEL MORALES ALMAGUER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1041194

M E M O R A N D U M   O P I N I O N

Appellant Abel Morales Almaguer appeals his conviction for burglary of a habitation, asserting the trial court erred by (1) admitting extraneous-offense evidence in violation of Texas Rules of Evidence 404(b) and 403, and (2) admitting an in-custody statement in violation of article 38.22 of the Texas Code of Criminal Procedure.  We affirm.

I.  Factual and Procedural Background

Complainant Heather Upshaw returned to her home one evening and discovered her back door had been kicked in.  Because she feared that someone was still inside her home, she drove to the home of her fiancé, Chris Leard, and sought his help.  She asked Leard to accompany her to her home to assess the damage.  They carried pistols for protection.

Upon their arrival at the home, they found Upshaw=s belongings had been Arifled through.@  Upshaw and Leard did not conduct a complete inventory of her belongings, but only a cursory assessment.  Upshaw noticed a trumpet and DVD player were missing.  They remained in the home for less than an hour and did not look for the perpetrator.  The damage to the back door made it impossible to secure the door, and out of safety, Upshaw decided she should not sleep in her home that evening.  Upshaw and Leard closed and attempted to lock the damaged door to secure the residence as much as possible.

The next morning, Upshaw and Leard stopped at the home before taking Upshaw=s son to school.  They discovered the damaged back door was open again.  Upon their entry, they noticed more disarray than when they left the home the previous night.  Someone had removed pictures from the walls and emptied the contents of drawers and boxes onto the floors.  Upshaw and Leard again closed the damaged door and took Upshaw=s son to school.

Twenty minutes later, they returned to the home for a third time within twelve hours to find that the damaged door was open again.  Leard armed himself with a pistol.  As he was loading the gun, appellant walked through the damaged doorway and said, ADon=t shoot me.@  Leard held appellant at gunpoint while Upshaw called police from a neighbor=s home.  Appellant told Upshaw that he did not burglarize her home, but was protecting it from a person named APsycho.@

Officer Mundy responded to the call and searched appellant, finding in appellant=s pockets a steak knife bearing Upshaw=s identifying marks and a comb and lighter from Upshaw=s night stand.  Officer Mundy arrested appellant.  The officer did not find anyone else in the home.  Police could not locate a person named APsycho,@ whom appellant alleged was involved.

Appellant was charged as a habitual offender with the felony of burglarizing Upshaw=s home, a habitation.  Appellant pleaded Anot guilty.@  A jury found appellant guilty as charged and assessed punishment at twenty-five years= confinement.

II.  Issues and Analysis

A.      Did the trial court err in admitting evidence of prior burglaries in violation of Texas Rules of Evidence 404(b) and 403?

In his first two issues, appellant claims the trial court erred in admitting extraneous-offense evidence in violation of Texas Rules of Evidence 404(b) and 403.  Appellant complains of Upshaw=s testimony that her home was burglarized at least three times over a twelve-hour period.  The first burglary occurred when she discovered the door was kicked in and her items were Arifled through;@ the second occurred the next morning when she discovered her house had been Aransacked;@ and the third occurred twenty minutes later when appellant was arrested at Upshaw=s home.

Before testimony began, appellant filed a motion in limine requesting an evidentiary hearing outside of the jury=s presence before the State made reference to any past burglaries at Upshaw=s home.  The motion provided in part:

Defense counsel has examined the document purported to be the official Houston Police Department offense report.  Contained therein, counsel has read that the complaining witness claimed that she had been burglarized one or more times.  The complainant further makes the claim that the reason she was not present at the alleged scene of the alleged offense was that she was afraid because of the alleged past burglary/burglaries.  Absolutely no evidence linking [appellant] to the alleged burglary/burglaries is present in the State=s file of the instant trial.

The record reflects the State orally agreed to this motion, but the trial court did not rule on the motion before the trial began.  During the State=s opening statement, appellant objected to the prosecutor=s reference to Upshaw finding her home burglarized two times within the twelve-hour period before appellant=s arrest.  Outside of the jury=s presence, the prosecutor explained that he believed appellant=s motion in limine referred to a burglary involving a motor scooter that occurred at Upshaw=s home two weeks before the charged offense.^[1]  The prosecutor argued first that any reference to the two prior instances of burglary in the twelve-hour period preceding appellant=s arrest was part of a continuing transaction as alleged in the indictment, or, alternatively, that the burglaries were same-transaction contextual evidence.

The trial judge determined that the two prior incidents Ablended together@ as one because Upshaw did not inventory her property after the first incident.  The trial judge determined that the presentation of the evidence would explain the context for Upshaw leaving her home unsecured. The trial judge indicated that jury members could draw their own inferences from the weight of the evidence that showed appellant was not found Aon the scene@ until shortly before he was arrested, and that some items were missing from Upshaw=s home in the first burglary.  The trial judge overruled appellant=s motion in limine.  After conducting a Rule 403 balancing test at appellant=s request, the trial judge admitted the extraneous-offense evidence, finding it to be more probative than prejudicial.

Appellant asserts the trial court erred in admitting Upshaw=s extraneous-offense testimony because the evidence suggests that he was repeatedly involved in burglarizing Upshaw=s home.  He also claims harm in that he was not offered proper notice of the State=s intent to use the extraneous-offense evidence under Rule 404(b).  The State argues on appeal that Upshaw=s testimony is not extraneous-offense evidence, and alternatively, that the evidence is same-transaction contextual evidence.

We review a trial court=s decision to admit or exclude evidence under an abuse-of-discretion standard.  Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).  Under this standard, we reverse only if the ruling is outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).

1.       Texas Rule of Evidence 404(b)

Evidence of other crimes, wrongs, or bad acts that an accused may have committed cannot be introduced for the purpose of showing an accused=s action in conformity with criminal character in proving the crime currently charged.  Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992); Montgomery, 810 S.W.2d at 386.  However, evidence of extraneous offenses may be admitted for other purposes.  Tex. R. Evid. 404(b); Lockhart, 847 S.W.2d at 571.

Evidence of extraneous offenses that are indivisibly connected as a continuous transaction to the charged offense or are closely interwoven with the case on trial may be admitted for the purpose of illuminating the nature of the crime alleged or for providing context for the offense.  Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Lockhart, 847 S.W.2d at 570; Mayes v. State, 816 S.W.2d 79, 86B87 n.4 (Tex. Crim. App. 1991); see Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986).  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.  Circumstances of the offense that tend to prove the allegations in the indictment are not extraneous offenses.  Camacho, 864 S.W.2d at 532.

Same-transaction contextual evidence may constitute legally separate offenses; however, the evidence imparts to the trier of fact information essential to understanding the context and circumstances of events.  Camacho, 864 S.W.2d at 532.  Offering context is necessary for a trier of fact to realistically evaluate the evidence to gain an understanding of what occurred immediately prior to and after the commission of the charged act because Acrimes do not occur in a vacuum.@  See Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d); see also Camacho, 864 S.W.2d at 532; Rogers v. State, 853 S.W.2d 29, 33B34 (Tex. Crim. App. 1993) (pertaining to necessity); Mann, 718 S.W.2d at 744; Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972) (involving background evidence).  Contextual evidence is admissible when the charged offense would make little or no sense without the contextual evidence, because in narrating the charged offense, it is difficult to avoid describing the other offense.  Rogers, 853 S.W.2d at 33B34.

We conclude that Upshaw=s testimony of finding her home burglarized twice in the twelve hours preceding appellant=s arrest was relevant as same-transaction contextual evidence to show the events were closely interwoven 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 extraneous-offense evidence Afills in gaps of the interwoven events@ and of criminal conduct and helps the jury understand the context of the case); Lockhart, 847 S.W.2d at 571 (finding same-transaction contextual evidence relevant under Rule of Evidence 401).  The evidence pertaining to the prior burglaries constitutes same-transaction contextual evidence because such evidence imparted essential information pertinent to understanding the context and circumstances of the events, which although are legally separate offenses, are blended or interwoven with the charged offense.  See Camacho, 864 S.W.2d at 532.  Upshaw=s testimony of the prior burglaries was relevant to understanding why she left her home unsecured and why she and Leard returned to the home with guns.  See Mann, 718 S.W.2d at 743 (involving relevance).  Her testimony would make little sense in describing why Leard held appellant at gunpoint without an understanding that twice before in the preceding twelve hours, someone had kicked in Upshaw=s backdoor and stolen her belongings.  Rogers, 853 S.W.2d at 33B34.  Because the burglaries in the twelve hours preceding appellant=s arrest are closely interwoven with the events supporting the case on trial, proof of these facts is proper.  See Mayes, 816 S.W.2d at 86.  As such, the evidence is admissible not for the purpose of showing character conformity, but to offer context and illuminate the nature of the crime alleged.  See Camacho, 864 S.W.2d at 532.  Therefore, the trial court did not abuse its discretion in admitting the evidence.

Appellant also alleges harm in the State=s failure to notify him of its intent to use this same evidence.  The requirement under Texas Rule of Evidence 404(b) that the State give a defendant reasonable notice before trial of its intention to offer evidence of other crimes, wrongs, or acts does not apply when other crimes, wrongs, or acts arise in the Asame transaction.@  Tex. R. Evid. 404(b); see Gregory v. State, 56 S.W.3d 164, 177 (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d).  Crimes, wrongs, or acts that are not Aextraneous@ to the offense charged, as in this case, but rather arise from the same transaction are not subject to the Rule 404(b) notice requirement.  Tex. R. Evid. 404(b); see Gregory, 56 S.W.3d at 177; see also Camacho, 864 S.W.2d at 534 (involving limiting instructions for same-transaction contextual evidence that appellant disputed as Aextraneous@).  Furthermore, the record reflects the trial judge specifically ruled that no harm ensued from the State=s use of Upshaw=s testimony describing the prior burglaries because appellant knew of the burglaries before trial began, as reflected in appellant=s motion in limine.  Because Upshaw=s testimony was admissible same-transaction contextual evidence, the State was not required to give advance notice that it would offer such evidence at trial.  See Gregory, 56 S.W.3d at 177.  Thus, the trial court did not abuse its discretion in overruling appellant=s notice objections.  See id.

Even if the trial court had erred in overruling appellant=s notice objections, appellant still could not prevail because the record does not show that these rulings would amount to reversible error.  Under Texas Rule of Appellate Procedure 44.2(b), we are to disregard any error unless it affects appellant=s substantial rights.  Tex. R. App. P. 44.2(b).  A substantial right is affected when the error had a substantial, injurious effect or influence on the jury=s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  The weight of the evidence of appellant=s guilt is relevant in conducting a harm analysis under Rule 44.2(b).  Motilla v. State, 78 S.W.3d 352, 360 (Tex. Crim. App. 2002).  In this case, the evidence of appellant=s guilt is overwhelming, considering that he exited Upshaw=s home through the damaged doorway with Upshaw=s belongings in his pockets.  We conclude that even if the trial court erred in overruling appellant=s objections, this error would not affect appellant=s substantial rights.  See Tex. R. App. P. 44.2(b); Moreno v. State, 195 S.W.3d 321, 328 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).  Accordingly, we overrule appellant=s first issue.

2.       Texas Rule of Evidence 403

Even if relevant evidence is offered and admitted under Rule 404(b), a trial court nonetheless should exclude it from evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 387.  Courts should balance the following factors under a Rule 403 analysis:  (1) the strength of the evidence in making a fact more or less probable, (2) the potential of the extraneous-offense evidence to impress the jury in some irrational but indelible way, (3) the amount of time the proponent needed to develop the evidence, and (4) the strength of the proponent=s need for this evidence to prove a fact of consequence.  Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).  Rarely will prejudicial value render contextual evidence inadmissible.  Mann, 718 S.W.2d at 744. 

Reference to the burglaries was relevant to explaining the context for the closely interwoven events that transpired preceding appellant=s arrest for the instant case.  See Tex. R. Evid. 401; Lockhart, 847 S.W.2d at 571.  In this case, the probative value is compelling, as the evidence relates to appellant=s claim that APsycho@ was returning to steal Upshaw=s items and explains the context for why Upshaw left her home unsecured and returned with a gun.  Though evidence of the burglaries in the twelve hours preceding appellant=s arrest may be prejudicial in suggesting to the jury that appellant repeatedly burglarized Upshaw=s home preceding his arrest at Upshaw=s home, the probative value of this evidence outweighs any prejudicial effect especially when considering that the evidence did not prove beyond a reasonable doubt that appellant entered the home in the two burglaries preceding his arrest.  See Jones v. State, 962 S.W.2d 158, 166 (Tex. App.CFort Worth 1998, no pet.); Yates v. State, 941 S.W.2d 357, 368 (Tex. App.CWaco 1997, pet. ref=d).  The State devoted a significant amount of time to developing the evidence of which appellant complains; however, this evidence was necessary to develop the context of the charged offense in explaining why Upshaw left her home unsecured and returned with a pistol.  See Yates, 941 S.W.2d at 368.  The decision to admit or exclude the contextual evidence was within the zone of reasonable disagreement.  See Montgomery, 810 S.W.2d at 391.  Based on our consideration of the required factors, the trial court did not abuse its discretion in admitting the evidence.  We overrule appellant=s second issue.

B.      Did the trial court err in admitting appellant=s in-custody statement in violation of article 38.22 of the Texas Code of Criminal Procedure?

In his third issue, appellant complains that the trial court erred in admitting a statement appellant allegedly made to Officer Mundy while in police custody in violation of article 38.22 of the Texas Code of Criminal Procedure.  The statement was admitted during the State=s direct examination of Officer Mundy in the following exchange:

[PROSECUTOR]:  When you met the defendant, did he make any statement without you asking any questions as to what happened?

[DEFENSE COUNSEL]:  Objection, Your Honor, hearsay.

[PROSECUTOR]:  That may be an admission againstC

[TRIAL COURT]:  Excuse me.

[PROSECUTOR]:  It=s aC

[TRIAL COURT]:  Just rephrase your question.  Ask it again. 

[PROSECUTOR]:  Did the defendant make any statements to you?

[WITNESS]:  Yeah, when I first asked himC

. . .

[PROSECUTOR]:  What statement did he make?

[DEFENSE COUNSEL]:  Objection, Your Honor, to any of the defendant=s statements.

[TRIAL COURT]:  Overruled.

[PROSECUTOR]:  You can answer the question.

[WITNESS]:  The defendant basically told me he was trying to protect the person=s home from his friend coming back and stealing some more items.

Article 38.22 of the Texas Code of Criminal Procedure prescribes strict requirements that must be satisfied before an accused=s oral statement, made as the result of custodial interrogation, may be admitted into evidence.  See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).  In this case, the record reflects that Officer Mundy first described how he searched appellant and placed appellant in his police vehicle before appellant allegedly made the statement.  We presume without deciding that appellant was in custody at the time appellant allegedly made the statement.

To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.  Tex. R. App. P. 33.1(a)(1)(A); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).  Appellant has not cited and our independent review of the record has not revealed that appellant raised an objection under article 38.22 in the trial court.^[2]  See Thomas, 723 S.W.2d at 700.  With few exceptions, not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court.  See Saldano, 70 S.W.3d at 886B89.

Furthermore, appellant=s objection on appeal does not comport with the objection levied in the trial court.  See Thomas, 723 S.W.2d at 700.  Appellant initially objected to the line of questioning on hearsay grounds and then objected to testimony involving Aany of the defendant=s statements.@  No error is preserved when, as in this case, an objection made in the trial court differs from the complaint made on appeal.  See id.

Finally, even if appellant had preserved his complaint for appellate review, he still cannot prevail because appellant cannot demonstrate harm.  The same facts were established by other, admissible evidence introduced without objection.  See Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989).  The record reflects that Upshaw testified without objection that appellant told her he entered the home only because a friend named APsycho@ was in the home and appellant was attempting to Arun him off.@  Because Officer Mundy=s testimony established the same information to which Upshaw already had testified without appellant=s objection, Officer Mundy=s testimony was cumulative.  Any error in admitting Officer Mundy=s testimony was, thus, harmless.  See id.  We overrule appellant=s third issue.

Having overruled appellant=s three issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 12, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  The parties do not contest whether the incident involving the motor scooter should be admissible as extraneous-offense evidence.  Rather, appellant specifically alleges that references to any burglaries at Upshaw=s home within the twelve hours preceding appellant=s arrest at her home constitute extraneous-offense evidence.

^[2]  Appellant asserts that under the analysis and cases cited within Heidelberg v. State, 144 S.W.3d 535, 538 (Tex. Crim. App. 2004), he has preserved error because the grounds for his objection were apparent from the context that the statement was made while appellant was in police custody.  Heidelberg instructs a reviewing court to look at each situation individually.  See id. at 538.  The record in this case does not reflect that the nature of appellant=s imprecise objection pertained to an article 38.22 objection, especially when the objection fell on the heels of a previous hearsay objection in the same exchange.  In Heidelberg, the court specifically held that (1) lack of time-specific questions by a prosecutor, (2) trial counsel=s failure to cite authority or specify that the objection was based on post-arrest silence, or (3) the lack of commentary made by the trial judge in making rulings on objections were factors specific to that case to support that appellant had not preserved error.  Id. at 542B43.  It is unclear, in light of the holding in Heidelberg, that all parties in this case understood the nature of appellant=s objection as involving an article 38.22 post-arrest statement.  See id.