NUMBER 13-10-00491-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CONRADO VELA III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Conrado Vela III, appeals his conviction for one count of aggravated
kidnapping, a first-degree felony, and one count of unauthorized use of a motor vehicle, a
state-jail felony. See TEX. PENAL CODE ANN. §§ 20.04, 31.07 (West 2003). A jury found
appellant guilty and sentenced him to fifty years of confinement in the Texas Department
of Criminal Justice, Institutional Division, for aggravated kidnapping and two years of confinement for unauthorized use of a motor vehicle. The sentences are to run
concurrently.
By one issue, appellant argues the trial court abused its discretion by allowing the
State to introduce testimony about extraneous offenses committed against two other
victims. 1 The testimony was elicited during the State’s redirect examination of its
witness, Amanda Zamora. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about March 15, 2009, Kimberly Garcia, appellant’s then-girlfriend
(complainant), was visiting appellant from Abilene, Texas. Appellant and Garcia had
known each other for about three weeks. During her trip, they went to a party together in
Beeville, Texas. At the party, Garcia sat on a couch underneath a blanket because she
was cold. Appellant told Garcia, ―Let’s go,‖ and Garcia followed appellant outside to
Garcia’s truck. As they walked to the truck, appellant called Garcia a rude name and
accused her of rubbing her leg on another man’s leg, apparently while seated under the
blanket. Garcia denied this allegation.
Garcia told appellant she was going to return home to Abilene, but appellant asked
her for a ride to his mother’s house. She agreed to let him drive her truck, but once
inside, appellant started hitting her and cursing at her. Garcia testified appellant told her
he would drive her to a remote place and kill her, and that afterwards he would have
someone kill her children. Garcia knew appellant was a gang member and that he had a
1 After filing appellant’s brief and arguing this case at oral argument, appellant’s court-appointed appellate counsel filed an unopposed motion to withdraw from representation of appellant and for appointment of new counsel. Counsel’s motion was carried with this case. We hereby grant counsel’s motion and note the trial court has appointed substitute appellate counsel. 2 gang tattoo.
Appellant broke Garcia’s cell phone when she tried to call the police. Garcia
testified that on her third attempt to escape from the truck, she jumped out of it while it was
traveling at forty miles per hour. Appellant ripped Garcia’s shirt as he pulled it to try to
prevent her from escaping. Garcia was bloodied as a result. The shirt was admitted
into evidence at trial. Garcia ran to the nearest house, and the occupants called 9-1-1.
Garcia testified she suffered permanent injury.
On the day after the incident, Garcia recanted and asked police to drop any
charges because appellant told her to do so. Later that weekend, she and appellant
drove to Abilene where he stayed with her for ten days. Garcia subsequently wrote
appellant a love letter.
A. Direct and Cross Examination of Zamora
During the guilt-innocence phase of trial, the State called Amanda Zamora as a
witness. Zamora was another former girlfriend. Zamora testified she dated appellant
from June 2009 until October 2009. She terminated the relationship after appellant told
her that he accused Garcia of rubbing someone’s leg, that appellant hit Garcia inside the
truck, and that appellant did not let her get out of the truck, thereby forcing Garcia to jump
out of the truck to escape. Zamora testified appellant told her that he tried to run over
Garcia after she exited the truck.
On cross-examination, Zamora testified appellant made the statement about
Garcia around October 27, 2009, but that she did not report it to the police at that time and
did not e-mail Garcia about the incident until May 2010. Defense counsel confirmed on
3 cross-examination that more than six months passed before Zamora e-mailed Garcia.
Defense counsel then asked if Zamora had any other contact with Garcia. Zamora
answered: only one e-mail, some five to ten telephone conversations, and about three
meetings. The first meeting was about two days before trial and lasted an hour. The
other two meetings were in the witness room at the courthouse.
B. The Disputed Testimony – Redirect Examination of Zamora
After a bench conference outside the hearing of the jury, the State asked Zamora
why she contacted Garcia in May 2010. Zamora testified that she decided to contact
Garcia after learning in March 2010 of an incident involving appellant and another
woman. Zamora did not elaborate on what happened between appellant and the other
woman. She explained that after learning about the other incident, she contacted Garcia
because she felt she needed to ―put a stop to it,‖ for Garcia’s sake and her own.
Zamora testified appellant held her against her will and beat her in October, 2009.
Appellant slapped, punched, and kneed her day and night, and in the course of doing so,
told her that he could get away with it because ―he had done it before.‖ Zamora testified
that appellant told her what he had done to Garcia. Zamora contacted the district
attorney’s office in March 2010, and told them about her own case and in May 2010, she
encouraged Garcia to report her incident to the district attorney. Garcia came forward as
a result of Zamora’s encouragement.
II. STANDARD OF REVIEW AND DISCUSSION
Appellant argues the trial court erred by admitting Zamora’s testimony about the
other woman and by allowing Zamora to testify regarding the context in which appellant
4 admitted to her the aggravated kidnapping of Garcia. Appellant argues this evidence
was inadmissible extraneous-offense evidence under Texas Rules of Evidence 401
(definition of relevant evidence), 402 (admissibility of relevant evidence), 403 (exclusion
of relevant evidence), and 404(b) (inadmissibility of other wrongs to show character).
See TEX. R. EVID. 401–03; 404(b). A trial court’s ruling on the admissibility of evidence is
reviewed under an abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003). If the trial court's ruling was within the zone of reasonable
disagreement, there is no abuse of discretion. Id. Rarely should the trial court’s
decision be reversed and only after a clear abuse of discretion. Id.
A. Preservation of Error
At oral argument, the State argued appellant only made a rule 403 objection at trial
and therefore appellant’s rule 404(b) and relevance complaints have not been preserved
for our review. We find appellant raised the relevance complaint in the trial court, but
agree with the State as to appellant’s rule 404(b) complaint. Appellant’s complaint under
Texas Rule of Evidence 404(b) was not made in the trial court and thus has not been
Free access — add to your briefcase to read the full text and ask questions with AI
NUMBER 13-10-00491-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CONRADO VELA III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Conrado Vela III, appeals his conviction for one count of aggravated
kidnapping, a first-degree felony, and one count of unauthorized use of a motor vehicle, a
state-jail felony. See TEX. PENAL CODE ANN. §§ 20.04, 31.07 (West 2003). A jury found
appellant guilty and sentenced him to fifty years of confinement in the Texas Department
of Criminal Justice, Institutional Division, for aggravated kidnapping and two years of confinement for unauthorized use of a motor vehicle. The sentences are to run
concurrently.
By one issue, appellant argues the trial court abused its discretion by allowing the
State to introduce testimony about extraneous offenses committed against two other
victims. 1 The testimony was elicited during the State’s redirect examination of its
witness, Amanda Zamora. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about March 15, 2009, Kimberly Garcia, appellant’s then-girlfriend
(complainant), was visiting appellant from Abilene, Texas. Appellant and Garcia had
known each other for about three weeks. During her trip, they went to a party together in
Beeville, Texas. At the party, Garcia sat on a couch underneath a blanket because she
was cold. Appellant told Garcia, ―Let’s go,‖ and Garcia followed appellant outside to
Garcia’s truck. As they walked to the truck, appellant called Garcia a rude name and
accused her of rubbing her leg on another man’s leg, apparently while seated under the
blanket. Garcia denied this allegation.
Garcia told appellant she was going to return home to Abilene, but appellant asked
her for a ride to his mother’s house. She agreed to let him drive her truck, but once
inside, appellant started hitting her and cursing at her. Garcia testified appellant told her
he would drive her to a remote place and kill her, and that afterwards he would have
someone kill her children. Garcia knew appellant was a gang member and that he had a
1 After filing appellant’s brief and arguing this case at oral argument, appellant’s court-appointed appellate counsel filed an unopposed motion to withdraw from representation of appellant and for appointment of new counsel. Counsel’s motion was carried with this case. We hereby grant counsel’s motion and note the trial court has appointed substitute appellate counsel. 2 gang tattoo.
Appellant broke Garcia’s cell phone when she tried to call the police. Garcia
testified that on her third attempt to escape from the truck, she jumped out of it while it was
traveling at forty miles per hour. Appellant ripped Garcia’s shirt as he pulled it to try to
prevent her from escaping. Garcia was bloodied as a result. The shirt was admitted
into evidence at trial. Garcia ran to the nearest house, and the occupants called 9-1-1.
Garcia testified she suffered permanent injury.
On the day after the incident, Garcia recanted and asked police to drop any
charges because appellant told her to do so. Later that weekend, she and appellant
drove to Abilene where he stayed with her for ten days. Garcia subsequently wrote
appellant a love letter.
A. Direct and Cross Examination of Zamora
During the guilt-innocence phase of trial, the State called Amanda Zamora as a
witness. Zamora was another former girlfriend. Zamora testified she dated appellant
from June 2009 until October 2009. She terminated the relationship after appellant told
her that he accused Garcia of rubbing someone’s leg, that appellant hit Garcia inside the
truck, and that appellant did not let her get out of the truck, thereby forcing Garcia to jump
out of the truck to escape. Zamora testified appellant told her that he tried to run over
Garcia after she exited the truck.
On cross-examination, Zamora testified appellant made the statement about
Garcia around October 27, 2009, but that she did not report it to the police at that time and
did not e-mail Garcia about the incident until May 2010. Defense counsel confirmed on
3 cross-examination that more than six months passed before Zamora e-mailed Garcia.
Defense counsel then asked if Zamora had any other contact with Garcia. Zamora
answered: only one e-mail, some five to ten telephone conversations, and about three
meetings. The first meeting was about two days before trial and lasted an hour. The
other two meetings were in the witness room at the courthouse.
B. The Disputed Testimony – Redirect Examination of Zamora
After a bench conference outside the hearing of the jury, the State asked Zamora
why she contacted Garcia in May 2010. Zamora testified that she decided to contact
Garcia after learning in March 2010 of an incident involving appellant and another
woman. Zamora did not elaborate on what happened between appellant and the other
woman. She explained that after learning about the other incident, she contacted Garcia
because she felt she needed to ―put a stop to it,‖ for Garcia’s sake and her own.
Zamora testified appellant held her against her will and beat her in October, 2009.
Appellant slapped, punched, and kneed her day and night, and in the course of doing so,
told her that he could get away with it because ―he had done it before.‖ Zamora testified
that appellant told her what he had done to Garcia. Zamora contacted the district
attorney’s office in March 2010, and told them about her own case and in May 2010, she
encouraged Garcia to report her incident to the district attorney. Garcia came forward as
a result of Zamora’s encouragement.
II. STANDARD OF REVIEW AND DISCUSSION
Appellant argues the trial court erred by admitting Zamora’s testimony about the
other woman and by allowing Zamora to testify regarding the context in which appellant
4 admitted to her the aggravated kidnapping of Garcia. Appellant argues this evidence
was inadmissible extraneous-offense evidence under Texas Rules of Evidence 401
(definition of relevant evidence), 402 (admissibility of relevant evidence), 403 (exclusion
of relevant evidence), and 404(b) (inadmissibility of other wrongs to show character).
See TEX. R. EVID. 401–03; 404(b). A trial court’s ruling on the admissibility of evidence is
reviewed under an abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003). If the trial court's ruling was within the zone of reasonable
disagreement, there is no abuse of discretion. Id. Rarely should the trial court’s
decision be reversed and only after a clear abuse of discretion. Id.
A. Preservation of Error
At oral argument, the State argued appellant only made a rule 403 objection at trial
and therefore appellant’s rule 404(b) and relevance complaints have not been preserved
for our review. We find appellant raised the relevance complaint in the trial court, but
agree with the State as to appellant’s rule 404(b) complaint. Appellant’s complaint under
Texas Rule of Evidence 404(b) was not made in the trial court and thus has not been
preserved for review. See TEX. R. APP. P. 33.1(a); Medina v. State, 7 S.W.3d 633, 644
(Tex. Crim. App. 1999) (holding relevancy objection does not preserve error concerning a
rule 404 extraneous-offense claim); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim.
App. 1993) (same).
Twice, appellant’s trial counsel objected on relevance grounds before the
extraneous-offense evidence was admitted. At the conclusion of the bench conference
concerning the admissibility of the extraneous-offense testimony, trial counsel asked for a
5 running objection that incorporated ―all the arguments that we just made on the record.‖
After clarifying the running objection would include ―all the extraneous offenses,‖ the trial
court granted trial counsel’s request for the running objection. Having carefully reviewed
the record, we conclude appellant raised a timely relevance objection to the admission of
the extraneous-offense evidence in the trial court and therefore the complaint is
preserved for our review. See Haley v. State, 173 S.W.3d 510, 515–17 (Tex. Crim. App.
2005) (discussing preservation of error for appellate review); Ethington v. State, 819
S.W.2d 854, 858–9 (Tex. Crim. App. 1991) (discussing use of running objections to
preserve error).
B. Relevance Analysis
Appellant argues Zamora’s testimony about an incident involving a third victim and
appellant’s abuse of Zamora was irrelevant. We disagree.
Texas Rule of Evidence 402 provides: ―All relevant evidence is admissible,
except as otherwise provided by Constitution, by statute, by these rules, or by other rules
prescribed pursuant to statutory authority. Evidence which is not relevant is
inadmissible.‖ Evidence is relevant if it has any tendency to make the existence of any
fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence. TEX. R. EVID. 401; Hudson v. State, 112 S.W.3d 794,
800 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Montgomery v. State, 810
S.W.2d 372, 386 (Tex. Crim. App. 1990) (op. on reh’g)). Relevance is not an inherent
characteristic of any item of evidence, but exists only as that item of evidence relates to a
matter properly provable in a case. Hudson, 112 S.W.3d at 800. Also, evidence need
6 not prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides
a ―small nudge‖ towards proving or disproving a fact of consequence. Id. A witness’s
motive in providing testimony is never immaterial or collateral. Castillo v. State, 939
S.W.2d 754, 758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (citing Hooper v.
State, 494 S.W.2d 846, 848 n.1 (Tex. Crim. App. 1973)).
Appellant’s statements to Zamora admitting what he had done to the complainant,
Garcia, were an admission by appellant of the offenses for which appellant was on trial.
See TEX. R. EVID. 801(e)(2) (setting forth that admissions by a party opponent are not
hearsay). Whether appellant actually made the admission was a fact of consequence in
determining the case against appellant. Appellant’s cross-examination of Zamora
undermined Zamora’s claim that appellant made the admission to her in October 2009,
because she did not act on the admission until March and May 2010. The
cross-examination of Zamora also suggested Zamora testified about the admission
because of a relationship she had established with Garcia. Thus, the
extraneous-offense evidence was relevant to show Zamora’s motive in testifying at trial
and why she only acted on appellant’s admission many months after he made the
admission. See Castillo, 939 S.W.2d at 758.
The evidence concerning the extraneous offenses was also relevant in proving
appellant’s admission of the offenses against Garcia because it rebutted appellant’s
theory of the case. Extraneous-offense evidence is relevant if it rebuts a defensive
theory. Id.; see also Bargas v. State, 252 S.W.3d 876, 890–91 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (discussing relevance of extraneous-offense evidence offered
7 for non-character purposes in the context of Rule 404(b)). Appellant’s theory of the
case, as expressed in opening statement and cross examination, was that Garcia’s
claims at trial were exaggerated and that appellant and Garcia simply argued or, at most,
appellant committed a far less serious offense such as simple assault, ―terroristic threat,‖
unauthorized use of a motor vehicle and/or unlawful restraint. In defense counsel’s
opening statement and cross-examination of Garcia, she emphasized Garcia dropped
her charges against appellant the day after the alleged offenses. During
cross-examination, defense counsel elicited testimony from Garcia that she recanted her
allegations against appellant. Defense counsel also emphasized that later the same
weekend after the aggravated kidnapping, Garcia traveled in the same truck with
appellant to her home in Abilene, where she stayed with appellant for ten days.
In defense counsel’s opening statement, she also told the jury about post-incident
―love letters‖ and examined Garcia about a love letter she wrote to appellant in April 2009.
Defense counsel questioned Garcia about why the violence she described at trial seemed
greater than that she first reported to police and whether she was arguing with appellant
at the driver side door of her truck immediately after the alleged aggravated kidnapping.
In light of the defensive theory that Garcia was an exaggerating ex-girlfriend who lacked
credibility for not promptly coming forward as a victim, evidence tending to show appellant
admitted the offenses to Zamora was relevant. See Bass v. State, 270 S.W.3d 557, 563
(Tex. Crim. App. 2008) (holding evidence of extraneous sex offenses was admissible to
rebut defensive theory that complainant’s accusations were fabricated where
complainant made police report more than ten years after incidents on hearing her cousin
8 was also a victim). Zamora’s nominal testimony about learning of a third woman in
March 2010 and the context of appellant’s admission concerning Garcia, was relevant to
rebut the defense’s theory of the case, by showing why Zamora waited several months to
come forward and showing Zamora’s impetus for coming forward about appellant’s
admission.
C. Rule 403 Analysis
Having determined that the extraneous-offense evidence was relevant, we
consider whether it should have been excluded under Rule 403. See TEX. R. EVID. 403.
It is a firmly-rooted principle of criminal law that an accused only be tried for the offense
charged and not for being a bad person or a criminal generally. See Hudson, 112
S.W.3d at 800. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence. TEX. R. EVID. 403.
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. Bargas, 252
S.W.3d at 892–93 (citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)).
When, as in this case, the record is silent as to the trial court's balancing of these factors,
we presume the trial court conducted the balancing test. See id.
9 The first factor, the strength of the evidence to make a fact of consequence more
or less probable, weighs strongly in favor of admissibility. Appellant’s admission of the
offenses for which he was on trial was significant and the admission was more likely in
light of Zamora’s testimony concerning her motive for finally acting on appellant’s
admission. The extraneous-offense evidence was probative to rebut appellant’s theory
that Zamora had testified to the admission because of her relationship with Garcia and
that Garcia’s claims were the exaggerations of an ex-girlfriend. See id. at 893. As to
the second and third factors, though there was danger of impressing the jury in an
indelible way and Zamora’s extraneous-offense testimony carried some emotional
weight, the trial court offered appellant a contemporaneous limiting instruction 2
concerning the purpose of the evidence, and the testimony was very brief and
non-graphic. In particular, the testimony concerning the third victim was minimal. The
second and third factors weigh in favor of admissibility of the extraneous-offense
evidence. See id. The fourth factor, requiring balancing the State’s need for such
extraneous-offense evidence, also weighs in favor of admissibility because, as set forth
above, proving appellant’s admission was significant to the State’s case in light of the
defense’s portrayal of the complainant as an exaggerating ex-girlfriend. See id.
We conclude the trial court did not abuse its discretion by overruling appellant’s
relevance and rule-403 objections to the extraneous-offense testimony elicited from
2 No limiting instruction concerning the extraneous-offense testimony was given at or near the time Zamora’s extraneous-offense testimony was received in evidence. See TEX. R. EVID. 105(a) (limited admissibility); Hammock v. State, 46 S.W.3d 889, 893–95 (Tex. Crim. App. 2001) (discussing time and procedure for obtaining a limiting instruction). The jury charge included a general limiting instruction that any extraneous-offense testimony could only be considered if it found beyond a reasonable doubt that appellant committed the extraneous offense and that such evidence could only be considered in determining appellant’s motive, opportunity, intent, preparation, plan, or knowledge, if any, in connection with the charged offense(s). See TEX. R. EVID. 404(b). 10 Zamora on re-direct examination. Appellant’s sole issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 25th day of August, 2011.