Altamirano, Linda Friss v. State

• Court: Court of Appeals of Texas
• Decided: April 17, 2003
• Docket: 08-01-00235-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LINDA FRISS ALTAMIRANO,                          )

                                                                              )               No.  08-01-00235-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                 70th District Court

THE STATE OF TEXAS,                                     )

                                                                              )              of Ector County, Texas

Appellee.                           )

                                                                              )                   (TC# A-28,353)

                                                                              )

O P I N I O N

Linda Friss Altamirano appeals her conviction for the offense of aggravated kidnapping.  A jury found Appellant guilty and sentenced her to 10 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  Appellant brings five issues for review, four of which concern the trial court=s evidentiary rulings and one which concerns the trial court=s refusal to submit the lesser-included offenses of kidnapping, aggravated assault, and unlawful restraint.  Finding no reversible error, we affirm.

In April 1999, Appellant and a female companion drove to the Estate Lounge, a bar that the Appellant had leased to Carol Babjeck, the complainant.  According to Ms. Babjeck=s testimony, she was working in the bar when Appellant=s companion came in and asked her to go outside because the Appellant had something to show her.  Ms. Babjeck got into the backseat of Appellant=s vehicle.  With Appellant driving, the three left the bar and traveled down the highway and then on to country roads.  Ms. Babjeck did not know where she was going and expressed her concern and worry about leaving her work, but Appellant and her companion continued to tell Ms. Babjeck that they had something she just had to see.  Both the Appellant and Ms. Babjeck testified that all three of them were drinking beer when they left the bar premises.

At some point, they reached a ranch cattle guard on a country road.  Ms. Babjeck testified that Appellant then stopped the vehicle.  Appellant=s companion handed Ms. Babjeck a newspaper article about a decomposed body that had been found on an isolated ranch.  Confused, Ms. Babjeck told Appellant that she did not know the man in the news story.  When Ms. Babjeck looked up, she saw that Appellant was pointing a gun at her.  Appellant told Ms. Babjeck that Ashe was fixing to meet him.@  In her testimony, Ms. Babjeck alleged that the Appellant then accused her of selling and using drugs in the Estate Lounge Bar and began hitting her.  Appellant drove further down the road, stopped the vehicle at an oil pumpjack station on ranch property, and exited the vehicle.  Appellant then opened the back door and pulled Ms. Babjeck out of the vehicle.  Appellant and her companion began hitting and kicking Ms. Babjeck who was knocked down on the ground.  Ms. Babjeck alleged that Appellant and the companion used twine to tie her hands behind her back and tie her ankles together.  Appellant and the companion then proceeded to kick, punch, and slap her intermittently for approximately two to three hours between breaks and drinking.  Ms. Babjeck also alleged that Appellant and the companion smeared cow manure, which was lying nearby, onto her clothes and her face during the incident.

At some point, Appellant and her companion were interrupted by a pickup truck coming down the road towards them.  According to Ms. Babjeck and the pickup truck driver, who was the owner of the ranch property, Appellant and her companion picked Ms. Babjeck off the ground and put her into the backseat of the Appellant=s vehicle, with one holding her by the shoulders and the other holding her by the ankles.  When they dropped Ms. Babjeck, the witness saw that Ms. Babjeck=s feet were tied up.  The witness testified that he saw  Ms. Babjeck struggling, kicking, and hollering Aplease help me.@  The witness called 911 emergency and followed the Appellant=s vehicle as it drove off his property towards the main highway.  During the drive, Ms. Babjeck managed to untie her hands.  When the Appellant stopped at a crossing, Ms. Babjeck jumped out of the vehicle and started hopping down the road towards the pickup truck and again the witness heard her say Aplease help me.@  The witness then saw the Appellant get out of the driver=s side of the vehicle and try to grab Ms. Babjeck and pull her back towards the vehicle.  At this point, a police car arrived.  Appellant stopped what she had been doing and returned to her vehicle.

At trial, Appellant testified in her own defense.  According to her, Ms Bajeck called Appellant earlier in the day and asked her to make up an excuse in order to get out of work.  They went out driving, drank beer, and listened to music.  Appellant had a rule against using or selling drugs at the bar and confronted Ms. Babjeck with her suspicions that Ms. Babjeck had broken this rule.  When Ms. Babjeck denied using and selling drugs, Appellant Abackhanded@ her.  There was a scuffle in the vehicle, which continued on and off again while they were outside at the pumpjack station.  Appellant testified that there was intermittent fighting and drinking amongst the three of them, which continued for approximately twenty minutes.  According to the Appellant, the fight was about Ms. Babjeck lying about using drugs and then admitting to it.  Appellant denied tying up Ms. Babjeck and stated that she did not notice that Ms. Babjeck was tied up.  Appellant also could not recall whether Ms. Babjeck was tied up when she and her companion put Ms. Babjeck into her vehicle.  Appellant testified that she was intoxicated and could not remember the details of what occurred after Ms. Babjeck jumped out of the vehicle.

Motion for Additional Discovery

In her first issue, Appellant asserts that the trial court erred in denying her motion for additional discovery.  In a pretrial hearing, Appellant argued that the State had failed to produce a list which allegedly contained the names of ten to fifteen people who claimed to have bought drugs from Ms. Babjeck in the Estate Lounge Bar.  Appellant learned of this list from a former District Attorney investigator who prepared it with the assistance of an informant sometime in 2000.  Appellant argued that the list was exculpatory because it contained impeachment material.  The District Attorney provided an affidavit, stating that he was made aware that such a list had existed, but did not remember seeing it.  Further, he stated that his staff had searched for this list, but had not found it.  Appellant requested an order from the trial judge to require the State to replicate or otherwise duplicate the list.  The trial judge denied the motion, stating that he would probably find that the information on the list was inadmissible evidence on the basis that it was irrelevant and pertained to collateral matters.  On appeal, Appellant argues that the trial court erred in refusing to require the State to duplicate the witness list, thereby violating the Appellant=s Fourteenth Amendment right to due process because the list was permissible impeachment evidence.

The Due Process clause of the Fourteenth Amendment guarantees that a defendant in a criminal prosecution is afforded a trial that comports with fundamental fairness.  See California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984).  This has been interpreted to mean that a defendant has a right to present a complete defense, and in order to do so, a defendant must have full access to exculpatory evidence.  See id. at 485, 104 S.Ct. at 2532. Evidence is exculpatory if it tends to excuse or clear the defendant from the alleged fault or guilt.  Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992).  A prosecutor is under an affirmative duty to disclose exculpatory evidence that is material to the defendant=s guilt or punishment.  Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  A due process violation occurs if:  (1) the prosecutor fails to disclose evidence; (2) the evidence is favorable to the defendant; and (3) the evidence is material to the accused=s defense.  See id. at 87, 83 S.Ct. at 1196-97; Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999).  Exculpatory evidence is material if there is a reasonable probability that its disclosure would have led to a different outcome in the proceeding.  See McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997).  A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the trial.  McFarland, 928 S.W.2d at 511; U.S. v Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).  Favorable evidence is Amaterial@ if there is a reasonable probability that had the evidence been disclosed to the defendant, the result of the proceeding would have been different.  Little, 991 S.W.2d at 866.  Exculpatory evidence includes impeachment evidence.  Bagley, 473 U.S. at 676, 105 S.Ct. at 3380.  The right to cross-examination, thus includes the right to impeach a State=s witness with relevant evidence affecting her credibility, bias, or interest in the prosecution.  See Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App. 1987).  The trial judge, however, retains broad discretion to impose reasonable limits on cross-examination based upon certain concerns, inter alia witness harassment, prejudice, and confusion of the issues.  See Virts, 739 S.W.2d at 28.

In the present case, Appellant argues that the list contained exculpatory evidence that would have impeached Ms. Babjeck=s testimony with respect to her denial of selling drugs in the Estate Lounge Bar.  Appellant also asserts that this evidence is not collateral because according to Appellant=s testimony, Ms. Babjeck=s drug activities were the cause of their alleged fight.  At trial on cross-examination, Ms. Babjeck admitted to using marijuana and cocaine regularly around the time of the incident and to using and sharing drugs with others at Appellant=s bar.  Appellant has failed to show that the testimony of potential witnesses from the list would be material or favorable to the defense.  Additional evidence of Ms. Babjeck=s drug activities in the bar was not material such as to establish a reasonable probability that its disclosure would have led to a different outcome in the proceeding.  A mere possibility that the evidence would have exculpated the accused is not sufficient to meet the requirement of materiality.  Lee v. State, 893 S.W.2d 80, 87 (Tex.App.--El Paso 1994, no pet.).  We agree with the trial court=s determination that the list and its contents would have constituted impeachment on a collateral matter.  Thus, the list is not exculpatory evidence because Appellant has failed to show that its contents would be relevant, material, or favorable to the defense.  There was no violation of Appellant=s due process right when the State failed to disclose or duplicate the potential witness list.  Even if exculpatory, Appellant failed to show bad faith in the State=s failure to preserve the list allegedly in its possession.  See Lee, 893 S.W.2d at 86.  The trial court did not err in denying Appellant=s motion.  Accordingly, we overrule Issue One.

Impeachment of State=s Witness on Cross-Examination

In her third issue, Appellant asserts the trial court erred in limiting cross-examination of Ms. Babjeck with respect to the extent of her alleged injuries.  Specifically, Appellant contends that the trial court denied her the right to confrontation when it restricted cross-examination of Ms. Babjeck, who was in her first trimester of pregnancy during the alleged kidnapping, about the abortion she had some time after the incident.  On appeal, Appellant asserts that the cross-examination was for the purpose of attacking the credibility of Ms. Babjeck=s account of the extent of her injuries by showing that the fetus was uninjured by the alleged assault.  In the trial, Appellant cross-examined Ms. Babjeck in the form of a bill as to condition of her fetus and to the fact that she did not miscarry after the alleged incident.  Appellant offered this testimony to dispute and rebut Ms. Babjeck=s allegation that Appellant and her companion jumped up and down on her stomach during the alleged kidnapping.  The trial court sustained the State=s objection to the proffered testimony on the grounds that the offense charged did not require a showing of serious bodily injury, that there was already evidence of physical injury on the record, and that the prejudicial impact of the testimony outweighed its probative value.  The trial court also sustained the State=s objection as to Ms. Babjeck not being qualified to testify as to the likely result of the physical impact on the fetus.

When reviewing the extent of cross-examination of a witness, the standard of review is abuse of discretion.  Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).  A party cannot impeach a witness on a collateral matter.  Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App. 1990).

The Sixth Amendment guarantees the accused in a criminal prosecution the right to be confronted with the witnesses against her.  Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965).  The Confrontation Clause includes the right to cross-examine a testifying State=s witness and to impeach that witness with relevant evidence.  See Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996).  Evidence is Arelevant@ if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  Tex.R.Evid. 401. 

A trial judge retains wide latitude to impose reasonable limits on cross-examination based upon concerns that the evidence is only marginally relevant.  See Moody v. State, 827 S.W.2d 875, 891 (Tex.Crim.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992).  We find no abuse of discretion in the trial judge=s decision to exclude the evidence of Ms. Babjeck=s abortion because the proffered testimony in this case was highly prejudicial and that its impact substantially outweighed any probative value.  Issue Three is overruled. 

Extraneous Offense

In Issue Four, Appellant asserts that the trial court committed reversible error when it admitted evidence of an extraneous offense which was not relevant to any issue in the case and was admitted without notice, despite Appellant=s motion in limine for notice of the State=s intent to introduce an extraneous offense.^[1]  The State argues, however, that the alleged extraneous offense was admissible as same transaction contextual evidence which does not require notice.

The trial court has wide discretion in deciding whether to admit evidence of extraneous offenses.  Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App. 1991)(Opin. on reh=g).  We will not disturb the trial court=s decision to admit evidence of extraneous offenses absent an abuse of discretion.  Id.  As long as the trial court=s ruling is within the zone of reasonable disagreement, an appellate court will not reverse that ruling.  Id.

The Court of Criminal Appeals has set forth a two-prong test for determining the  admissibility of background evidence, i.e., background contextual evidence and same transaction contextual evidence under Texas Rule of Evidence 404(b).^[2]  Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App. 1993); Mayes v. State, 816 S.W.2d 79, 86-7 (Tex.Crim.App. 1991).  The first prong requires a determination that the evidence is relevant under Texas Rule of Evidence 401.  Rogers, 853 S.W.2d at 32.  Relevant evidence is evidence which has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  Tex.R.Evid. 401.  Evidence which is not relevant is not admissible.  Tex.R.Evid. 402.

Next, the reviewing court must determine whether the background evidence at issue is admissible as an exception under Rule 404(b).  Rogers, 853 S.W.2d at 33.  Same transaction contextual evidence has been defined as evidence of other offenses connected with the offense charged.  Id.  In Camacho, the Court of Criminal Appeals also defined same transaction contextual evidence as Aevidence [which] imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven.@  Camacho, 864 S.W.2d at 532.  In contrast, background contextual evidence is Aproof of facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness.@  Mayes, 816 S.W.2d at 87.  Background contextual evidence is not admissible as one of the Aother purposes@ for which evidence may be admitted under 404(b) when it includes an impermissible character component.  Id. at 88.  Same transaction contextual evidence is admissible only to the extent that it is necessary to the jury=s understanding of the instant offense.  See England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App. 1994); Rogers, 853 S.W.2d at 33.  Thus, A[o]nly if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted.@  Rogers, 853 S.W.2d at 33.  The notice requirements in Rule 404(b) do not apply to same transaction contextual evidence.  See Brown v. State, 978 S.W.2d 708, 712 (Tex.App.--Amarillo 1998, pet. ref=d); Hodge v. State, 940 S.W.2d 316, 319 (Tex.App.--Eastland 1997, pet. ref=d).

Before trial, Appellant filed a request for the State to provide Rule 404(b) notice of extraneous or unadjudicated offenses.  In a pretrial hearing, the trial court granted Appellant=s motion in limine which requested that the State be precluded from presenting any evidence of extraneous offenses.  At trial, during direct examination of the complainant, Ms. Babjeck, the State prosecutor asked Ms. Babjeck to relate what transpired between she and Appellant during the alleged kidnapping.  The pertinent testimony is as follows:

Q.        Okay.  When she [Appellant] was-- you said earlier that she accused you of dealing drugs there, out at that location; it that correct?

A.        Yes.

Q.        And did she ever get demeaning in that regard as far as calling you stupid or anything?

A.        Well, yes.

Q.        How was that?

A.        Because at one point I just said AYes, I was doing it.@  And she wanted to know how much money I made and I said, AFive hundred dollars.@  And then she called me stupid.  That I should have been making a lot more money at it.

Q.        Did she elaborate on that?

A.        Well, she said that she had been doing it for years and I don=t know how to play the game.

At this point in the trial, defense counsel asked to approach the bench.  The court reporter=s microphone was not working, however, the trial judge later asked defense counsel to restate his objection for the record.  Defense counsel stated that he objected on the grounds that the above testimony constituted evidence of an extraneous offense without notice.  Defense counsel then asked the trial court to instruct the jury not to consider Ms. Babjeck=s answer and requested a mistrial.  The trial judge recounted for the record that the court then asked for the State=s response and that the State had argued that Ms. Babjeck=s answer was Ajust a statement made out at the scene@ and Apart of her demeanor . . . .@  Based on that representation, the court overruled the objection.  In the testimony that followed, Ms. Babjeck affirmed that she had never seen any indication that the Appellant was dealing drugs.

At trial and on appeal, the State argues that Ms. Babjeck=s statement is admissible as same transaction contextual evidence.  First, we must determine if the proffered evidence was relevant.  See Tex.R.Evid. 401.  Here, Ms. Babjeck was describing the conversation between the Appellant and herself during the commission of the offense.  Evidence of the facts and circumstances of an offense are relevant when they have influence over a consequential fact, i.e., a fact which has something to do with the ultimate determination of guilt or innocence in a particular case.  See Mayes, 816 S.W.2d at 84.  Because reasonable persons may differ when determining whether a particular inference arises from certain evidence, we will not disturb the trial court=s relevancy ruling because it falls within the zone of reasonable disagreement.  See Rogers, 853 S.W.2d at 32; Montgomery, 810 S.W.2d at 391. 

Even if Ms. Babjeck=s statements were relevant, this evidence was not admissible as same transaction contextual evidence.  While Ms. Babjeck=s statements regarding Appellant=s alleged drug dealing provided context for incident that occurred, this evidence was not necessary in order for the jury to understand the offense charged.  See England, 887 S.W.2d at 915.   Further, this evidence was not so intertwined and indivisible such that one offense could not be understood without the other.  See Rogers, 853 S.W.2d at 33.  We cannot conclude that the instant offense would make little or no sense without also bringing in Ms. Babjeck=s statements as same transaction contextual evidence.  See Rogers, 853 S.W.2d at 29.  The trial court erred in admitting this evidence.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment.  Even if the trial court erred in admitting this evidence, we must disregard the error as long as it is not of constitutional magnitude and did not affect Appellant=s substantial rights.  Tex.R.App.P. 44.2.  A violation of the evidentiary rules that results in the erroneous admission of evidence is not constitutional in nature.  See Lam v. State, 25 S.W.3d 233, 237-38 (Tex.App.--San Antonio 2000, no pet.).  An Appellant=s substantial rights are affected when the error had a substantial and injurious effect or influence on the jury=s verdict.  See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).  If the error had no influence or only a slight influence, it is harmless.  Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).  In making this determination we review the entire record, including any testimony or evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.  Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000).  The only evidence connecting the Appellant to the alleged extraneous offense was Ms. Babjeck=s statements, which she later testified were unfounded.  At trial, the jury heard evidence from Ms. Babjeck and the pickup truck driver witness as to Appellant=s conduct during the commission of the offense charged.  There was also testimony as to Ms. Babjeck=s physical condition from police officers who arrived at the scene to investigate.  After examining the record in its entirety, we cannot say that the trial court=s error in admitting the extraneous offense warrants reversal.  Accordingly, we overrule Issue Four.

Impeachment Evidence on Prior Inconsistent Statements

In her fifth issue, Appellant contends that the trial court erred when it denied her the opportunity to present certain evidence for the purpose of impeaching Ms. Babjeck=s testimony.  Specifically, Appellant argues that the trial court erred in refusing to admit the testimony of two defense witnesses.  Outside the presence of the jury, Appellant=s counsel offered the testimony of Charles Smith and Jessica Brown in the form of bills.  Mr. Smith testified that Ms. Babjeck had offered him cocaine and marijuana on one occasion at the Estate Lounge bar.  Appellant argued that Mr. Smith=s testimony offered permissible impeachment evidence of prior inconsistent statements by Ms. Babjeck as to never having sold drugs in the Estate Lounge Bar.  In later testimony in the form of a bill, Miss Brown testified that she met Ms. Babjeck on the first day Ms. Babjeck arrived in Odessa, Texas.  Miss Brown was age fifteen at the time.  According to Miss Brown, she and Ms. Babjeck rolled a couple of marijuana joints and then smoked them together on that day.  Appellant offered Miss Brown=s testimony to impeach prior inconsistent statements by Ms. Babjeck as to when she started to use drugs in Odessa.  The trial court refused to admit the proffered testimony of both Mr. Smith and Miss Brown after determining that this evidence constituted improper collateral impeachment.

A trial court has broad discretion in determining the admissibility of evidence and we will not reverse its ruling absent a clear abuse of discretion.  Allridge v. State, 850 S.W.2d 471, 492  (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct 101, 126 L.Ed.2d 68 (1993).  As a general rule, a witness may not be impeached regarding collateral matters.  Ramirez, 802 S.W.2d at 675.  Texas Rule of Evidence 608(b) provides:  ASpecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness= credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.@  Tex.R.Evid. 608(b).  There are, however several recognized exceptions to the rule against collateral attack which permit impeachment of a witness to show bias, interest, or to correct any affirmative misrepresentations made by the witness during direct examination.  See Tex.R.Evid. 613(b); Ramirez, 802 S.W.2d at 676.

In the present case, further inquiry into Ms. Babjeck=s alleged drug activities would have constituted impermissible impeachment on collateral matters, since Appellant as the cross-examining party would not be entitled to prove that Ms. Babjeck sold drugs at the Estate Lounge Bar or that Ms. Babjeck began using drugs when she first arrived in Odessa, rather than several months later.  See Ramirez, 802 S.W.2d at 675.  Appellant argues that even if this impeachment evidence was collateral, it is still admissible because Ms. Babjeck gratuitously testified about her drug activities, which left the jury with a false impression concerning a matter related to her credibility.  Under this exception to Rule 608(b), a witness may be impeached by evidence contradicting her gratuitous and voluntary testimony on an irrelevant or collateral matter.  See Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App. 1986).

At trial during direct-examination, the State questioned Ms. Babjeck as to what Appellant said to her during the alleged aggravated kidnapping.  Ms. Babjeck testified that Appellant called her a liar and accused her of being a Adruggie.@  The State prosecutor then asked Ms. Babjeck if Appellant had ever made these accusations before and Ms. Babjeck replied that Appellant had done so on one other occasion, which occurred sometime during the first two months of her arrival in Odessa.  Ms. Babjeck testified that she was not using drugs at that time.  Ms. Babjeck also denied ever dealing drugs at the Estate Lounge Bar.  On cross-examination, Ms. Babjeck restated that she was not using drugs at the time of the earlier confrontation.  Defense counsel then asked Ms. Babjeck to clarify the time of that confrontation and Ms. Babjeck stated that it was probably a few months after she had arrived in Odessa.  On cross-examination, Ms. Babjeck also stated that she had not started using cocaine at the time of the earlier confrontation.  We cannot conclude that Ms. Babjeck=s testimony was gratuitous such as to create a false impression with respect to her use of illegal drugs.  Ms. Babjeck clearly admitted to prior drug usage, leaving only the exact date on which she started in question. 

On cross-examination, the defense counsel questioned Ms. Babjeck extensively on the subject of whether or not she had ever sold drugs in the Estate Lounge Bar.  The pertinent testimony is as follows:

Q.        And you know Chuck Smith, the guy that is sitting out in the hallway?

A.        Chuckster, yeah, I know him.

Q.        Didn=t you offer him cocaine on one occasion?

A.        I don=t believe that I ever did that.

Q.        And when he refused it didn=t you offer to smoke some marijuana with him?

A.        No, I don=t believe I did that.

Q.        You don=t remember?

A.        I don=t believe offering it to him or---no.

Additional pertinent testimony by Ms. Babjeck included the following:

Q.        Now in response to one of [State prosecutor=s] questions about dealing drugs, he asked you if you ever dealt out of the Estate Lounge and you answered, I never, never dealing [sic] out of the bar. You never dealt out of that bar?

A.        Correct.

Q.        Is that correct?

Q.        What is your definition of deal?

A.        Dealing?

Q.        Yeah.

A.        That would be selling it to somebody. 

Q.        Do you know that if you just give it away that you=re just as guilty as selling it for money?

A.        No, I didn=t

Q.        Did you give it away out of the bar or share it with people at the bar? 

A.        I shared it.

Q.        Did you share marijuana or cocaine or both?

A.        Both.

We cannot agree with Appellant that Ms. Babjeck=s testimony created a false impression with respect to selling drugs at the Estate Lounge Bar.  On cross-examination, Ms. Babjeck admitted to the alleged drug activity.  Further testimony by Charles Smith on this collateral matter would have constituted improper impeachment evidence.  The trial court did not abuse its discretion when it excluded the testimony of Charles Smith and Jessica Brown.  We overrule Issue Five.

Lesser‑Included Offenses

In her second issue, Appellant complains that the trial court erred in denying her request to instruct the jury on the lesser‑included offenses of kidnapping^[3], unlawful restraint^[4], and aggravated assault.^[5]  We apply a traditional two‑prong test to determine whether Appellant was entitled to a charge on a lesser‑included offense.  See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau v. State, 855 S.W.2d 666, 672‑74 (Tex.Crim.App. 1993)(en banc), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981)(Opin. on reh=g); Ramirez v. State, 976 S.W.2d 219, 226‑27 (Tex.App.‑‑El Paso 1998, pet. ref=d).  First, the lesser‑included offense must be included within the proof necessary to establish the offense charged.  Bignall, 887 S.W.2d at 23; Ramirez, 976 S.W.2d at 227.  Unlawful restraint and kidnapping are lesser‑included offenses of aggravated kidnapping.^[6]  See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996); Romero v. State, 34 S.W.3d 323, 325 (Tex.App.‑‑San Antonio 2000, pet. ref=d).  The State did not contest that aggravated assault is a lesser‑included offense of aggravated kidnapping.  We assume, without deciding, that aggravated assault is a lesser-included offense based on the facts of this case, thus the first prong of the test is satisfied.

Under the second prong, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, she is guilty only of the lesser‑included offense.  See Schweinle, 915 S.W.2d at 18; Ramirez, 976 S.W.2d at 227.  The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether the lesser‑included offense should be given.  See Gadsen v. State, 915 S.W.2d 620, 622 (Tex.App.‑‑El Paso 1996, no pet.).  A defendant is guilty only of a lesser‑included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of rebuts or negates a crucial element.  See Ramirez, 976 S.W.2d at 227.  It is not enough the jury may disbelieve crucial evidence pertaining to the greater offense.  See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998).  There must be some evidence directly germane to the lesser‑included for the jury to consider before the instruction on the lesser‑included offense is warranted.  See Bignall, 887 S.W.2d at 24; Ramirez, 976 S.W.2d at 227.  A defendant=s denial of committing any offense does not automatically foreclose an instruction to the jury on a lesser‑included offense.  See Bignall, 887 S.W.2d at 24.

To determine whether the trial court erred in failing to give a charge on the lesser‑included offense, we review all the evidence presented at trial.  Rousseau, 855 S.W.2d at 673.  The record indicates that the following pertinent evidence was presented to the jury.  Appellant testified that she had no intent to harm Ms. Babjeck.  Appellant admitted that there was a scuffle in which she Abackhanded@ Ms. Babjeck and that she and her companion Aslapped@ Ms. Babjeck around, but that the fight was mostly verbal, not physical.  Appellant denied tying up Ms. Babjeck or knowing how she became tied up.  Appellant also denied kicking or jumping on Ms. Babjeck during their fight.  Appellant stated that she and the companion placed a willing Ms. Babjeck into the vehicle and they all left the ranch property with no special destination in mind.  Police officers who arrived to investigate the incident testified that Ms. Babjeck was crying, appeared assaulted, but did not have life-threatening injuries.  The witness who had notified the police and followed behind the Appellant=s vehicle testified that Ms. Babjeck looked Aworn out@ and Alike she had been through a lot,@ but he could not remember if Ms. Babjeck was crying, dirty, had her hands tied, or whether she had a bloody nose.  Police officers found a gun and twine in Appellant=s vehicle, both of which Appellant admitted were her possessions or similar.  A rebuttal witness testified that Appellant spoke with him on the morning of the incident and had told him that she planned to take Ms. Babjeck Aout in the country and beat the shit out of her,@ but he had not taken her seriously.  On appeal, Appellant points out that none of the medical records from Ms. Babjeck=s stay at the Midland Memorial Hospital substantiate the serious injuries allegedly inflicted upon her.  Appellant also argues that Ms. Babjeck never tried to run away.  In addition, the newspaper article that Ms. Babjeck alleges Appellant showed her while in the vehicle was never found.

If the defendant either presents evidence that she committed no offense or presents no evidence, and there is no evidence otherwise showing she is guilty only of a lesser‑included offense, then a charge on a lesser‑included offense is not required.  Bignall, 887 S.W.2d at 24, citing Aguilar v. State, 682 S.W.2d 556, 588 (Tex.Crim.App. 1985).  The evidence must establish that if a defendant is guilty, she is guilty only of the lesser-included offense.  See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001).  In the instant case, Appellant=s testimony refuted both the greater and lesser‑included offenses.  There was no affirmative evidence that Appellant restrained Ms. Babjeck, but did not abduct her as to require an instruction on unlawful restraint.  There was no affirmative evidence that Appellant caused serious bodily injury or threatened Ms. Babjeck with imminent bodily injury, but did not restrain or abduct Ms. Babjeck as to require an instruction on aggravated assault.  There was also no affirmative evidence presented which indicated that the alleged kidnapping was not aggravated by an intent to inflict bodily injury or to terrorize Ms. Babjeck.  We conclude that there was no evidence at trial from any source to affirmatively rebut or negate an element of the greater offense which would have permitted a rational jury to find that the Appellant was guilty of only a lesser‑included offense.  Accordingly, the trial court did not err in refusing Appellant=s requested instructions.  We overrule Issue Two.

Having overruled all of Appellant=s issues for review, we affirm the trial court=s

judgment.

April 17, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)

---

^[1] Appellant also argues on appeal that evidence of the extraneous offense was more prejudicial than probative under Texas Rules of Evidence 404 and 403.  This objection does not appear on the record.  To preserve error for the purposes of appeal, a defendant=s trial objection must comport with the issue raised on appeal.  See Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993); Tex.R.App.P. 44.2(b).  Appellant raises a Rule 404(a) objection for the first time on appeal.  If Appellant did not believe the trial judge engaged in Rule 403 balancing test, she was required to call it to the trial judge=s attention at the time and make a sufficient record from which we could properly review the issue.  Tex.R.App.P. 33.1(a). 

^[2] Texas Rule of Evidence 404(b) governs the admissibility of extraneous offenses.  Rule 404(b) provides:

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.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

^[3] A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. Tex.Pen.Code Ann. ' 20.03 (Vernon 2003).  Abduct means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found, or using or threatening to use deadly force.  Tex.Pen.Code Ann. ' 20.01(2)(A),(B).

^[4] A person commits the offense of unlawful restraint if he intentionally or knowingly restrains another person.  Tex.Pen.Code Ann. ' 20.02(a).  Restrain means to restrict a person=s movements without consent; so as to interfere substantially with the person=s liberty, by moving the person from one place to another or by confining the person.  Restraint is Awithout consent@ if it is accomplished by force, intimidation, or deception.  Tex.Pen.Code Ann. ' 20.01(1)(A).

^[5] A person commits an offense of aggravated assault if the person commits assault as defined in Section 22.01 and the person causes serious bodily injury to another, including the person=s spouse, or uses or exhibits a deadly weapon during the commission of the assault. Tex.Pen.Code Ann. ' 22.02(a)(1),(2).  In pertinent part, Section 22.01 provides:

(a)        a person commits an offense if the person:

(1)        intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse;

(2)        intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse.

Tex.Pen.Code Ann. ' 22.01(a)(1),(2).

^[6] A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to inflict bodily injury on him or violate or abuse him sexually or to terrorize him or a third person.  Tex.Pen.Code Ann. ' 20.04(a)(4),(5).