Guardado, Rogelio Alberto v. The State of Texas--Appeal from Co Crim Ct at Law No 7 of Harris County

Affirmed and Opinion filed  November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01142-CR

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ROGELIO ALBERTO GUARDADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court  at Law No. 7

Harris County, Texas

Trial Court Cause No. 1044229

O P I N I O N

Appellant entered a plea of not guilty to the offense of terroristic threat. He was convicted, and the trial court assessed punishment at forty-five days in the Harris County jail. In three points of error appellant contends that: (1) the trial court erred in admitting evidence of extraneous offenses because the State did not provide reasonable notice under Texas Rule of Evidence 404(b); (2) the trial court erred in admitting evidence of extraneous offenses because the probative value of the offenses was outweighed by unfair prejudice; and (3) the evidence was legally and factually insufficient to support the conviction. We affirm.

I. FACTUAL BACKGROUND

Until February 10, 2001, appellant and the complainant lived in the same home with two of their grown daughters. Appellant and the complainant had been estranged since September, 2000, did not sleep in the same room, and spoke only to argue. On February 10, 2001, appellant told the complainant someone would be contacting her about a divorce and that he did not intend to leave their home. When the complainant asserted her right to the home, appellant told her that the only way he would leave the house would be dead. He then threatened to kill the complainant, then kill himself. Claudia Guardado, one of the daughters, heard appellant threaten the complainant and called the police who arrested appellant.

At trial, the complainant testified to three other incidents where appellant had threatened to kill her. In two of the incidents, appellant threatened to hit his grandson. The complainant told appellant she would call the police if he hit his grandson. Appellant then threatened to kill the complainant if she called the police. One of those incidents occurred approximately four months prior to the offense; the other incident occurred the weekend before the offense. The complainant also testified that approximately one year prior to the offense, appellant attempted to hit the complainant. When their daughter intimated that she would call the police, appellant threatened to kill the complainant.

II. EXTRANEOUS OFFENSES

In his first point of error, appellant claims the trial court erred in admitting evidence of the extraneous offenses because the State failed to provide proper notice under Texas Rule of Evidence 404(b). Appellant claims that, although the State voluntarily provided notice of its intent to use extraneous offenses, the notice did not specifically state the date and county of each act alleged.

An accused may not be tried for collateral crimes or for being a criminal generally. Smith v. State, 646 S.W.2d 452, 455 (Tex. Crim. App. 1983). Thus, evidence of extraneous offenses is inadmissible to show conforming conduct. Tex. R. Evid. 404(b). Evidence of other crimes, however, may be admitted for other purposes, such as to show intent, plan, motive, or absence of mistake or knowledge, provided the State gives notice, upon timely request by the accused, of its intent to introduce such evidence. Hankton v. State, 23 S.W.3d 540, 545 (Tex. App. Houston [1st Dist.] 2000, pet. ref d).

Appellant failed to request notice of the State s intent to introduce extraneous offense evidence. Absent a request, the State was not required to give such notice. Webb v. State, 995 S.W.2d 295, 298 (Tex. App. Houston [14th Dist.] 1999, no pet.). Even though the State voluntarily provided notice, because appellant failed to request notice, he is precluded from complaining about the notice he received. Id. Appellant s first point of error is overruled.

III. PROBATIVE VALUE VERSUS UNFAIR PREJUDICE

In his second point of error, appellant claims the trial court erred in admitting the extraneous offenses because their probative value was outweighed by the danger of unfair prejudice. In a hearing outside the jury s presence, the complainant testified to the three incidents in which appellant had previously threatened to kill her. Appellant objected to the evidence, first under Rule 404(b) and second, under Texas Rule of Evidence 403. The trial court overruled appellant s objections.

A party may introduce extraneous offense evidence where it tends to establish an elemental fact, such as identity or intent or an evidentiary fact, such as motive, opportunity, or preparation. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). When a defendant claims his act was free from criminal intent, extraneous offenses are relevant to prove guilty intent. Plante v. State, 692 S.W.2d 487, 491 92 (Tex. Crim. App. 1985); Bradshaw v. State, 65 S.W.3d 232, 236 (Tex. App. Texarkana 2001, no pet.). We employ an abuse of discretion standard when reviewing the trial court s decision to admit testimony over a Rule 403 objection. Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992).

First, we must determine whether the extraneous offense testimony was relevant. Appellant was charged with the offense of terroristic threat. A person commits the offense of terroristic threat if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent serious bodily injury. Tex. Pen. Code Ann. 22.07(a)(2). Appellant s defense was that he did not intend to place the complainant in fear of imminent serious bodily injury because his threat was based on their divorce, which would occur in the future. Because appellant claimed his act was free from the requisite criminal intent, the extraneous offenses, which demonstrated appellant s intent to place the complainant in imminent fear of serious bodily injury, were relevant. See Bradshaw, 65 S.W.3d at 236.

We presume that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Reviewing the trial court s judgment for abuse of discretion requires deciding whether the court conducted the required balancing of probative value versus the danger of unfair prejudice and did not rule arbitrarily and capriciously. Montgomery, 810 S.W.2d at 392. The trial court s determination must also be reasonable in view of all the relevant facts. Santellan, 939 S.W.2d at 169.

A Rule 403 balancing test by the trial court should include the following factors:

1. how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable;

2. the potential the extraneous offense evidence has to impress the jury in some irrational and indelible way;

3. the trial time the proponent will require to develop evidence of the extraneous misconduct; and

4. the proponent s need for the extraneous transaction evidence.

Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

As discussed above, intent was a contested issue and the extraneous offense evidence made that fact of consequence more probable. Further, the evidence served to rebut the defense s theory that appellant did not intend to place the complainant in imminent fear of serious bodily injury. The State introduced the evidence with two witnesses in a trial that lasted only one day. Further, the State needed the evidence to show intent because there was no direct evidence of appellant s intent. Finally, while evidence of an extraneous offense will usually carry emotional weight and the danger of impressing the jury in an irrational way, the rule of evidence requires the exclusion of relevant evidence only if the danger of unfair prejudice, delay, or needless repetition substantially outweighs the probative value. Here, the trial court s admission of the evidence allowed the jury to understand why the complainant was in imminent fear of serious bodily injury. The trial court s admission of the extraneous offenses fell within the zone of reasonable disagreement and was not an abuse of discretion. See Montgomery, 810 S.W.2d at 392. Appellant s second point of error is overruled.

IV. SUFFICIENCY CHALLENGES

In his third point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In reviewing factual sufficiency, we do not view the evidence in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that proof of guilt is either so obviously weak as to undermine confidence in the jury s determination, or, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).

A person commits the offense of terroristic threat if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent serious bodily injury. Tex. Pen. Code Ann. 22.07(a)(2). Imminent means [n]ear at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. In re A. C., 48 S.W.3d 899, 904 (Tex. App. Fort Worth 2001, pet. denied) (quoting Black s Law Dictionary 750 (6th ed.1990)). The accused s threat of violence, made with the intent to place the victim in fear of imminent serious bodily injury, is what constitutes the offense. Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. 1982). The requisite intent can be inferred from the acts, words, and conduct of the accused. Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. 1980). Section 22.07 does not require the victim to actually be placed in fear of imminent serious bodily injury. Dues, 634 S.W.2d at 305. The offense is committed if the accused, by his threat, sought as a desired reaction, to place a person in fear of imminent serious bodily injury. Id. at 306.

Appellant contends the complainant could not have been placed in fear of imminent serious bodily injury because his threat was conditioned on a future occurrence, i.e., the divorce. Conditioning a threat of harm on the occurrence of a future event does not necessarily mean that the harmful consequences threatened are not imminent. A. C., 48 S.W.3d at 904. Thus, in gauging imminence, we must look to the proximity of the threatened harm to the condition. Cook v. State, 940 S.W.2d 344, 348 (Tex. App. Amarillo 1997, pet. ref d) (noting that it would be an intellectual injustice and a farce for us to methodically dissect the messages word by word, and phrase by phrase to determine some ratio of conditional to non-conditional language. ). The focus of the inquiry should be whether the complainant was afraid of imminent serious bodily injury at the time of the offense. Stults v. State, 23 S.W.3d 198, 205 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). The evidence showed that appellant had a history of threatening to kill the complainant when he was acting violently toward her or a family member. The record reflects that he used his threats to dominate his family and prevent them from notifying authorities. Claudia, their daughter, testified she called the police the night of the offense because she was afraid appellant would lose control and kill her mother or her. Under the circumstances of this case, we are unpersuaded by appellant s contention that his invocation of conditional clauses frees him from criminal liability. When a defendant has a history of controlling his family by verbal threats, conditional language will not automatically free him from the realm of the statute.

Viewing the evidence in the light most favorable to the prosecution, we conclude a rational jury could have found the elements of the offense beyond a reasonable doubt.

Appellant further contends the evidence is factually insufficient to support his conviction. Appellant presented no evidence in his own defense, but relied on the State to prove its case, and on his cross-examination of witnesses. Appellant s cross-examination was limited to the issue of whether the complainant was in fear of immediate danger. After examining the evidence of intent in a neutral light, we find the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant s third point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).