Curtis Lee Jones v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed August 14, 2007

Affirmed and Memorandum Opinion filed August 14, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01024-CR

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CURTIS LEE JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1071878

M E M O R A N D U M O P I N I O N

Appellant, Curtis Lee Jones, was convicted by a jury of aggravated assault. The jury subsequently found the enhancement allegations to be true and assessed appellant=s punishment at confinement in the state penitentiary for a term of 30 years. In his sole point of error, appellant contends the trial court erred in admitting testimony regarding extraneous crimes and bad acts. We affirm.

Geraldine Todd and her two sons were living in a house belonging to appellant=s brother. The electricity had been turned off, and light was provided by several candles. On June 6, 2006, after being released from jail, appellant bought some beer and went over to the house. He stayed the entire day, leaving once to purchase additional beer. Jamarcus, Todd=s ten-year old son, returned home at dark and proceeded to take a nap on the living room couch. He was awakened by a verbal altercation between his mother and appellant. Appellant went to the kitchen, retrieved a knife and held it to Jamarcus= neck, demanding that he leave the house. Todd fled to the neighbor=s house to call the police. Jamarcus was able to flee a short time later without injury.

In his sole point of error, appellant objects that parts of Todd=s testimony were improperly admitted under the Texas Rules of Evidence. The standard of review for a trial court=s ruling on evidentiary matters is abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We will reverse the trial court 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). We must view the evidence in the light most favorable to the trial court=s ruling, giving the trial court deference on its findings of historical facts that are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Appellant objects to the trial court=s admission of the extraneous acts under Rule 404(b). Tex. R. Evid. 404(b). Appellant=s argument centers on Todd=s testimony regarding: appellant=s threatening and throwing Todd to the ground, appellant=s nudity and his attempt to force Todd to read Playboy with him; display of a crack pipe; and prior drug use. The State contends these arguments are not preserved for review. To preserve an issue for appeal, a timely request, objection, or motion must be made that states the grounds for the ruling that the complaining party sought. Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002). Furthermore, with two exceptions: (1) counsel obtains a running objection, or (2) counsel requests a hearing outside the jury, an objection is required each time the evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).

After reviewing the record, we conclude appellant failed to object to Todd=s testimony concerning the crack pipe. Todd testified appellant came into the living room where she and Jamarcus were sitting, wearing only a muscle shirt, and carrying a Anude book@ and a crack pipe. Todd further testified appellant had done drugs at the house on other occasions. Todd continued to testify about appellant=s drug use and appellant did not object until the State asked Todd if appellant A[w]alking around with a nude book and a crack pipe@ was appropriate. Thus, appellant waived any objection to the testimony regarding the crack pipe.

During two separate bench conferences, appellant objected to his lack of notice regarding extraneous offenses, specifically the magazine and appellant=s threats and abuse. The State argued the magazine testimony was necessary to explain the circumstances leading up to the assault of Jamarcus. The trial court requested the prosecutor go into the Arelationship building up to the ruckus,@ but nothing else. Todd testified at length about appellant=s threats and physical abuse before appellant objected. The trial court did not give a formal ruling on the objection, but allowed Todd to testify to the fight Aon a limited basis.@ However, the fight was not mentioned again. We need not decide whether the objections were preserved for appeal, because the testimony is admissible under Rule 404(b) as same-transaction evidence.[1]

For evidence of other acts to be admissible under Rule 404(b), it must be relevant for a purpose other than to show the character of a person and that he acted in conformity with it. Tex. R. Evid. 404(b). Extraneous act evidence may also be admitted if it would be considered same-transaction evidence needed to assist the fact finder in understanding the nature and context of the charged offense. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). Same-transaction evidence illuminates the nature of the crime charged by imparting to the trier of fact information that is essential to understanding the context and circumstances of events that, although legally separate offenses, are blended and interwoven. Id. Aside from the determination of admission under Rule 404(b), the trial court must conclude the probative value is not substantially outweighed by the unfair prejudice to the defendant. Tex. R. Evid. 403.

The testimony from Todd flowed from one event to the next. She testified she and appellant fought over a candle for lighting. Appellant immediately went into another room with the candle, only to return wearing just a muscle shirt, and carrying a crack pipe and Anude book.@ Todd and appellant got into another fight, this time regarding his nudity and the objects he was carrying being inappropriate in front of her son. At this point, appellant went into the kitchen, grabbed the knife, and assaulted Jamarcus. Although the record does not give us an exact time, it appears from Todd=s testimony that the events occurred within a matter of minutes. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (stating the jury has a right to hear what occurred immediately prior to and subsequent to the offense so that it may realistically evaluate the evidence).

The trial court found the fight was context for the aggravated assault. In overruling appellant=s objection, the trial court allowed Todd=s testimony Ato show how it built up and put it in context, since she was the mother of the child,@ limiting it to the Arelationship building up to this ruckus where she ran out of the house.@ The circumstances justifying the admission of extraneous act evidence vary and each case must be determined on its own merits. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).

Reviewing the record in the light most favorable to the trial court=s ruling, Todd=s testimony related to a single episode in which each of the offenses flowed together. The incidents were necessary to give context to the jury and let them realistically evaluate the evidence. See Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992) (stating the circumstances surrounding an officer=s death were necessary for the jury=s comprehension of the crime). Therefore, the probative value is not substantially outweighed by any unfair prejudice that might have resulted. Tex. R. Evid. 403. Thus, the trial court ruling was within the reasonable zone of disagreement, and it did not abuse its discretion by allowing the testimony.

Additionally, appellant argues the evidence should have been excluded because the State failed to give proper notice to him, resulting in prejudice to him. However, notice is not required for evidence of other bad acts Aarising in the same transaction.@ Tex. R. Evid. 404(b). Thus, because we find the acts were part of the same transaction, notice was not required.

Accordingly, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 14, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

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

[1] Rule 404(b) of the Texas Rules of Evidence states:

(b) Other Crimes, Wrongs or Acts. 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.

Tex. R. Evid. 404(b).