Elida Ruiz v. The State of Texas--Appeal from County Court at Law No 6 of Bexar County

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No. 04-98-00272-CR

Elida Ruiz,

Appellant

v.

The State of Texas,

Appellee

From County Court at Law No. 6, Bexar County, Texas

Trial Court No. 676483

Honorable Ray Adams, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 21, 1999

AFFIRMED

A jury found Elida Ruiz guilty of prostitution, and the trial court sentenced her to a $500 fine and 170 days in jail. In a single point of error, Ruiz contends the trial court incorrectly admitted evidence of "track marks." We affirm.

Factual and Procedural Background

Elida Ruiz was arrested for prostitution in a sting operation by the San Antonio Police Department vice unit. At a pretrial hearing, the State informed the court that the undercover officer was going to testify about track marks on Ruiz's hands to prove Ruiz's motive.(1) In response, defense counsel asserted the evidence was a mere attempt to prove Ruiz acted in conformity with a bad character trait because motive was not an element of prostitution. After discussing the issue with the prosecutor and defense counsel, the trial court permitted the officer to testify about the track marks, as long as his testimony was confined to his recollections of that particular day.

At trial, the officer testified as follows:

[THE STATE]: Okay. Did you have the opportunity to make any observations of the defendant?

[THE OFFICER]: Yeah. I did notice she had scars on her hands and track marks from needle marks.

[THE STATE]: Where were these located?

[THE OFFICER]: I noticed the ones on her hand.

[THE STATE]: Okay. I am sorry. You're pointing where?

[THE OFFICER]: Well, on the veins on your hand. That is where --

[DEFENSE COUNSEL]: Objection. Object to anything other than needle marks. He is giving his opinion.

Defense counsel subsequently cross-examined the officer about the track marks.

Argument on Appeal

In her sole point of error, Ruiz contends the trial court erred in admitting the evidence of track marks. More specifically, Ruiz argues the evidence was barred by Texas Rule of Evidence 404(a) because it was offered to prove that she acted in conformity with a bad character trait. To preserve this complaint, however, a specific and timely objection was required. See Tex. R. App. P. 33.1; see e.g., Washington v. State, 943 S.W.2d 501, 504 (Tex. App.--Fort Worth 1997, pet. ref'd.).

Ruiz's trial counsel argues he objected timely to the evidence. We disagree. Although the track marks were discussed at the pretrial hearing, this discussion did not preserve error. See Tex. R. App. P 33.1; Harrington v. State, 547 S.W.2d 616, 620 (Tex. Crim. App. 1977) (holding that, to preserve error, defendant using motion in limine must also object when the evidence is admitted during trial). At trial, counsel's objection related to the officer's opinion of the track marks instead of its admissibility under Tex. R. Evid. 404(a). Therefore, defense counsel did not preserve error.

Even if error had not been waived, however, the trial court did not abuse its discretion in admitting the evidence. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (explaining the standard of review). Generally, evidence of past crimes, wrongs, or acts is not admissible to prove conformity therewith. See Tex. R. Evid. 404. But this evidence may be used for other purposes, including "proof of motive." Tex. R. Evid. 404(b). While motive is not an essential element of the crime of prostitution,(2) it may be proven if relevant to the offense. See Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991); see also Tex. R. Evid. 403 (instructing the court to balance the relevance of the evidence with its ability to unfairly prejudice the jury). In this case, the track marks are relevant to prove motive.

Conclusion

We overrule Ruiz's point of error and affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. "Track marks" are scars resulting from the use of a hypodermic needle. They are often associated with intravenous drug abuse. See De La Paz v. State, 901 S.W.2d 571, 574 n.1 (Tex. App.--El Paso 1995 , pet. ref'd).

2. See Tex. Penal Code Ann. 43.02 (Vernon 1994) (enumerating the elements of prostitution as offering to engage, agreeing to engage, engaging in or soliciting another in a public place to engage in sexual conduct for a fee).