George Aleman v. The State of Texas--Appeal from 248th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00141-CR

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GEORGE ALEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th Judicial District Court

Harris County, Texas

Trial Court No. 1012816

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

George Aleman appeals from his conviction by a jury for aggravated robbery. The jury assessed punishment at twenty-five years' imprisonment. Aleman contends the trial court committed reversible error by overruling his objections to the admission of evidence that he had committed another theft on the same date as the aggravated robbery, and by admitting evidence that the victim was pregnant at the time of the attack. We affirm.

Aleman does not attack the sufficiency of the evidence, but we provide a brief synopsis to provide context for our review. Aleman was convicted for attacking Melissa Hanks in the parking lot of a convenience store. The attack occurred at about 4:25 p.m. Hanks testified that, on arrival at the store, she exited her vehicle, with her car keys and a small wallet in her hand. After exiting the car, she was approached by two males whom she described as "Hispanic," one wearing blue jeans and a "mustard-colored" shirt, and the other wearing blue jeans and no shirt. In court, she identified Aleman as the one with no shirt and identified Abraham Gomez as the one wearing the "mustard-colored" shirt. Hanks testified that, as Aleman approached her, he grasped her arm, demanded the keys to her car, and while she pleaded with him not to hurt her because she was pregnant, he hit her on the head with a bottle. Hanks testified she gave Aleman the keys and threw her wallet to the ground, but Aleman continued to grip her arm. As Hanks struggled to get free, she managed to maneuver Aleman toward the front of the store. Aleman was apparently on the ground, continuing to grasp Hanks' arm, when Hanks stepped on a "cement" step and kicked Aleman on his head, causing Aleman to release her. Hanks ran into the store and told an employee to call the police. Hanks testified that, while she was struggling with Aleman, Gomez entered her vehicle and was sitting on the passenger's side. After she broke free from Aleman, he too entered her car, on the driver's side, and tried unsuccessfully to get it started. From inside the store, Hanks observed Gomez run away with her purse, with Aleman following him.

Police had left the store only a few minutes earlier after responding to a report that two males had stolen beer from this particular convenience store. This theft took place at about 3:30 that afternoon. Officer D. J. Patterson testified he left the store at about 4:05 p.m. Officers responding to the Hanks robbery apprehended Gomez almost immediately. Aleman was arrested the next day, exhibiting a head injury for which he was hospitalized.

Aleman first complains the trial court erred by admitting evidence that he had committed an extraneous offense. His point of error addresses only the testimony of Abdul Allana, the owner of the convenience store. Over a running objection, Allana testified he saw two boys in his store steal beer and agreed they were the same two who were outside the store with the woman who was attacked.

We review the trial court's determination of admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 79 (Tex. Crim. App. 1990). Rule of Evidence 404(b) prohibits the use of evidence of a defendant's other bad acts or wrongs to prove that such defendant acted in conformity with his or her character. Tex. R. Evid. 404(b). Evidence of extraneous offenses may be admitted for other purposes, however, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id. It may also be admitted as contextual evidence. // Thus, the evidence may be admitted if the proponent convinces the court that it is relevant to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory. Marc v. State, 166 S.W.3d 767, 775 (Tex. App. Fort Worth 2005, pet. ref'd); Massey v. State, 933 S.W.2d 582, 586 (Tex. App. Houston [1st Dist.] 1996, no pet.).

Allana's identification of Aleman and Gomez weakened by the evidence that he could not see clearly through the doors of the store and by the distance between him and the attack was strengthened by his ability to identify them as also being the two who had, very shortly before, stolen beer from his store. The identity of the attacker was at issue, and evidence that the same person, wearing the same clothes, had within the hour returned to the scene of one crime and committed another is evidence that tends to establish the elemental fact of identity.

The remaining question raised by Aleman is whether the evidence was of such a nature that it should nonetheless have been excluded under Tex. R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 388 89 (op. on reh'g). In Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997), the Texas Court of Criminal Appeals restated the factors discussed in Montgomery that should go into the balancing test:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Id. at 169 (footnote omitted).

In this case, Hanks testified compellingly that Aleman was her attacker she saw him up close and fought with him in broad daylight. She kicked him on the head, and when he was arrested the next day, he had a head injury. Hanks also testified she viewed the surveillance video recording of the interior of the store and recognized Aleman from that recording. The nature of Allana's testimony about the prior event was extremely brief, consuming very little time or attention.

It is appropriate to allow evidence to prove identity, and even though there was other strong testimony about Aleman's actions, evidence from an unrelated source identifying Aleman as an attacker was appropriate to help ensure that justice was served. We find the trial court's decision, based on these factors, to be within the zone of reasonable disagreement.

Aleman also directs us to testimony by Patterson that, while he was investigating the robbery, he also reviewed the surveillance video recording at the convenience store. The video recording was taken shortly before the attack on Hanks. This recording did not show the robbery at bar; however, it did show two Hispanic males shoplifting two six-packs of beer. In his testimony, Patterson described the general appearance of these two males and their clothing, including the fact that one of them was wearing a yellow shirt. He did not identify either as participants in the Hanks robbery.

Aleman does not direct this Court to any other testimony by Patterson. However, Patterson did later testify that, after cruising the area, he located and arrested a man in a yellow shirt, who was not Aleman, but Gomez. Even though it is evidence of an extraneous offense, it is not clear that Patterson's testimony links Aleman directly to that offense, and Aleman has not shown us how it should be so linked. To constitute an extraneous offense, the evidence must show a crime or bad act and the defendant's connection to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992). The contention of error is overruled.

Aleman next contends the court erred by allowing evidence that the victim was pregnant at the time of the attack. He argues that it is not relevant to the issue of guilt or innocence, and clearly is the type of evidence that was unfairly prejudicial. At trial, Aleman made a motion in limine in which he asked the court to prohibit the State from questioning the victim about the fact she was pregnant at the time of the attack. When testimony about that matter was introduced, however, counsel did not object. It is well-settled that the denial of a motion in limine is not sufficient to preserve error for review, but, rather, there must be a proper objection to the proffered evidence. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997). We have reviewed the record and find no timely objection to that testimony. The claimed error has not been preserved for review.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: February 2, 2006

Date Decided: March 14, 2006

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