Rotella, Joseph Benjamin v. State

Opinion

Opinion issued October 28, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00719-CR

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JOSEPH B. ROTELLA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 905469

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MEMORANDUM OPINION ON REMAND

FROM THE COURT OF CRIMINAL APPEALS

Joseph Benjamin Rotella, appellant, pleaded not guilty to assault of a household member. The jury found him guilty, found an enhancement paragraph true, and assessed punishment at eight years’ confinement. On original submission, this Court affirmed appellant’s conviction, finding that he had not preserved error on his complaints of improperly admitted evidence because he did not object every time the State attempted to elicit testimony regarding appellant’s crack cocaine usage and his plans to go to “Crackville.” Accordingly, we did not reach the merits of appellant's first point of error. Rotella v. State, No. 01-02-00719-CR, 2003 WL 21545117, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2003) (not designated for publication). On discretionary review, the Court of Criminal Appeals held that this Court erred in concluding that the point of error was not preserved and remanded this case for reconsideration of appellant’s first point of error. Rotella v. State, No. 1627-03, 2004 WL 1682885, at *1 (Tex. Crim. App. June 09, 2004) (unpublished opinion). In his sole point of error, appellant contends the trial court erred in admitting evidence that was of little or no probative value and unfairly prejudicial. We affirm the trial court’s ruling.

BACKGROUND

On November 4, 2001, while Chris Cheves was driving with her husband, Cheves saw appellant, the driver of the truck in front of them, beating his passenger, Evelyn Collins. Collins stumbled out of the truck’s passenger door. As Collins collected some of the things that fell out of the truck, she yelled for Cheves to call the police. Appellant threw Collins’s purse out the driver’s side window of the truck, but Collins’s wallet remained in the truck with appellant.

As Cheves’s husband dialed 911 on her cell phone, appellant put the truck in reverse and rammed into Cheves’s car. Appellant got out of the truck and went to the driver’s side of Cheves’s car to pound on the window. While Cheves was calling the police, appellant got back into the truck and sped off. During the phone conversation with the 911 operator, Collins made statements to Cheves, which Cheves repeated to the operator, that appellant was on his way to “Crackville” and that he was “coming down” off of crack cocaine. Based on the information Collins provided to the police about where appellant was going after the assault, the police picked up appellant and placed him in custody.

Appellant was later charged with assault of a household member. At trial, appellant objected to the admission of the audiotape recording of the 911 conversation on the grounds that it violated Texas Rule of Evidence 404 and that its prejudicial effect substantially outweighed its probative value under Texas Rule of Evidence 403. At the pretrial hearing, the trial court initially excluded the comment that appellant was “coming down” off crack cocaine, but admitted the comment about appellant going to Crackville. However, at trial, after Collins, the complainant, testified that appellant did not commit the charged offense and did not take any illegal drugs on the date of the offense, the trial court admitted the comment about appellant coming down off crack cocaine.

Admissibility of Evidence

In his sole point of error, appellant contends that the admitted evidence that appellant “was on his way to Crackville” and that appellant was “coming down” off of crack cocaine was of little or no probative value concerning any disputed issue and was offered by the prosecution solely to prejudice the jury against appellant. The State argues that the evidence was properly admitted under Rule 404(b) as same transaction contextual evidence.

 We review the trial court’s determination of admissibility under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). As a general rule, to prevent an accused from being prosecuted for some collateral crime or misconduct, the State may not introduce evidence of bad acts similar to the offense charged, even if relevant. Rule 404(b) provides that evidence of “other crimes, wrongs or acts” is not admissible to prove a defendant’s character in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, this type of evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R. Evid. 404(b).

In addition to the explicit exceptions set out in Rule 404(b), extraneous offense evidence may be admissible as contextual evidence. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). There are two types of contextual evidence: (1) evidence of other offenses connected with the primary offense, referred to as same transaction contextual evidence; and (2) general background evidence, referred to as background contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991). Same transaction contextual evidence is admissible as an exception under Rule 404(b) when such evidence is necessary to the jury’s understanding of the charged offense. See Wyatt, 23 S.W.3d at 25; Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Extraneous conduct is considered to be same transaction contextual evidence when the charged offense would make little or no sense without also bringing in the same transaction evidence. Rogers, 853 S.W.2d at 33. Such evidence provides the jury information essential to understanding the context and circumstances of events that are blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

We conclude that the trial court’s decision to admit the evidence was not an abuse of discretion. Here, evidence of appellant’s contemporaneous use of crack cocaine at the time of the assault was helpful to the jury’s understanding of the instant offense because it was so intertwined with the offense. In order for the State to adequately describe the events leading to appellant’s assault of Collins and appellant’s subsequent arrest, the State should be allowed to explain fully what appellant was doing and why he committed the offense. The crack cocaine usage evidence provided the jury with a context to show the appellant’s state of mind at the time the offense was committed, as well as where he was headed immediately after he committed the offense. “[I]t has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986).

Similarly, the testimony relating to appellant’s plan to go to Crackville after he committed the offense provides information necessary to the understanding and circumstances of appellant’s assault of Collins. The State’s theory was that the Crackville statement showed appellant’s “motive to lie, his motive to escape, . . . and it shows evidence of his guilty mind” at the time of the assault. The Crackville evidence provided a context for appellant’s actions and shed light on why he might have acted so violently toward his wife and why he was in such a hurry to leave the location of the offense. The evidence provided credence to the State’s theory that appellant was on his way to buy more crack, and that this was why he took Collins’s wallet while throwing the rest of her purse out of the truck during the assault. The Crackville testimony was also necessary for the State to explain how the sheriff’s department knew where to find appellant, because the Crackville testimony described the area of Spring Branch where Collins told the sheriff’s department they could locate appellant. We hold that appellant’s crack usage evidence and the Crackville evidence admitted by the trial court constituted contextual evidence indivisibly connected to the charged offense and that this evidence was, therefore, admissible under section 404(b). Tex.R. Evid. 404(b).

Rule 403 Balancing

          Yet, even if the extraneous evidence satisfies the requirements of same transaction contextual evidence, to be admissible, it must also satisfy the balancing test of Texas Rule of Evidence 403. Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); Tex. R. Evid. 403. Relevant evidence may be excluded if its potentially prejudicial effect outweighs its probative value. Tex. R. Evid. 403. Generally, although a trial court must still perform a balancing test to see if the same transaction contextual evidence’s probative value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s comprehension of the whole criminal transaction. Swarb v. State, 125 S.W.3d at 681; Smith v. State, 949 S.W.2d 333, 337 (Tex. App.—Tyler 1996, pet. ref’d). The reviewing court, using an abuse of discretion standard, should “do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court’s determination must be reasonable in view of all relevant facts.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citations omitted). A Rule 403 balancing test includes, but is not limited to, the following factors:(1) how compellingly evidence of the extraneous offense

serves to make a fact of consequence more or less probable;

(2) the extraneous offense’s potential to impress the jury

in some irrational but indelible way;          (3) the trial time that the proponent will require to develop

          evidence of the extraneous misconduct;

          (4) the proponent’s need for the extraneous transaction

          evidence.

Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

            We conclude that the trial court did not abuse its discretion by finding that the prejudicial effect of the extraneous evidence did not substantially outweigh its probative value. The trial court performed the requisite balancing during the pretrial hearing when it stated, “[I]n this instance the probative value, I find, far outweighs the prejudicial effect except for that one statement about, ‘He’s coming off of crack cocaine.’” At trial, the court reevaluated its initial determination regarding the crack cocaine usage when it explained “as the trial has developed, it appears to me that his mental condition and whether he was intoxicated or not has become a more significant factor in his state of mind and his intent . . . it has become far more probative” and decided to admit the evidence on appellant’s crack cocaine usage. Having reviewed the record, we find the trial court acted reasonably when it permitted the statements regarding Crackville and crack cocaine usage to be admitted into evidence. Consequently, the trial court did not abuse its discretion in admitting this contextual evidence. We overrule appellant’s point of error.

CONCLUSION

          We affirm the judgment of the trial court.

Sherry Radack

                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).