JOSEPH ELDER v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

   NUMBER 13-03-254-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JOSEPH ELDER, Appellant,

v.

STATE OF TEXAS, Appellee.

 On appeal from the 319th District Court

of Nueces County, Texas.

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

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is an appeal of a conviction for capital murder by appellant, Joseph Elder. In two issues, appellant asserts (1) the evidence was legally insufficient to support a conviction for capital murder, and (2) the trial court erred by admitting evidence of Aextraneous bad acts.@ We affirm.

I. ANALYSIS

1. Legal Sufficiency of Evidence

In his first issue, appellant asserts that the evidence presented was legally insufficient to sustain a conviction of capital murder. The basic premise of his argument is that the evidence showed that appellant=s intent to rob was a mere afterthought to the true intent of appellant and the other assailant, and appellant=s intent to kill - not rob - the victim was actually the only impetus behind the act.

When an appellant challenges that the evidence was legally insufficient to support the conviction, the appellate court has a duty to address that issue, regardless of whether it was raised in trial. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). The court will review the evidence in the light most favorable to the verdict to determine if a rational trier of fact could find each criminal element beyond a reasonable doubt. Herrin v. State, 125 S.W.3d 436, 439 (Tex. Crim. App. 2002).

The elements of capital murder in question in this case are (1) if appellant intentionally or knowingly caused the death of an individual, and (2) if appellant intentionally committed the murder in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. _ 19.03(a)(2) (Vernon 2003). Further, under the law of parties, evidence is sufficient to convict when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). For a murder to qualify as a capital murder under section 19.03(a)(2), the intent to rob the decedent must be formulated before or at the time of the commission of the murder. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Appellant asserts that since both he and the other assailant, Jeffery Logan Fletcher, originally intended only to murder the decedent, the robbery of the decedent that took place was an afterthought, unrelated to the murder, and therefore could not be the basis for a capital murder charge. See generally Herrin, 125 S.W.3d at 436-39. Appellant=s argument fails, however, because the evidence establishes the intent to rob was formulated before the actual killing of decedent.

Viewing the evidence in the most favorable light to the prosecution, we see that Fletcher, the co-assailant, testified that appellant asked the decedent if he had any items of value. Although this occurred long after appellant and Fletcher initially formulated their intent to kill the decedent, and after Fletcher=s initial assault on decedent earlier on the night of the assault, it occurred before appellant and Fletcher returned to the scene and delivered the death blows. Further, the testimony of appellant=s former fiancée shows that he maintained control of decedent=s property until that night.

A rational juror could find without a reasonable doubt that the intent to rob was formulated before appellant and Fletcher inflicted the fatal wounds ending the decedent=s life. See Herrin, 125 S.W.3d at 439. This would mean the jury believed Fletcher=s testimony and found the intent to rob arose prior to the murder itself. Although appellant=s statement to the police shows the actual robbery itself occurred after the passing of decedent, the jury could still infer that intent to rob was formulated before the robbery. Finally, a rational juror could find without a reasonable doubt that appellant either helped commit or assisted in the murder of decedent by providing a large knife to Fletcher, by being present at the scene of the crime, by providing him with liquor and viewing a violent movie with him before the murder, by instructing him on how to more efficiently hold the knife provided, by allegedly participating in the stabbing of the decedent, by allowing him a safe harbor after the killing, and by concealing the weapon in his apartment. As such, the evidence presented, when viewed in a light favorable to the verdict, is legally sufficient to uphold the jury=s conviction. See Herrin, 125 S.W.3d at 439.

Accordingly, we overrule appellant=s first issue.

 2. Admission of Prior  AExtraneous Bad Acts@

In his second issue, appellant asserts that certain witness testimony by appellant=s former fiancée was improperly admitted character evidence, and the State should have been prevented from utilizing this testimony under Texas Rules of Evidence 404(b) and 403.

A trial court's rule 404(b) ruling is reviewed under an abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). Similarly, a rule 403 ruling is also reviewed under this standard. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

Appellant contends that certain testimony of his former fiancée was inadmissable hearsay and submitted to the jury for the purpose of proving conformity of character. Appellant asserts that this Acharacter assassination@ unduly influenced the jury and was not relevant to any issue in dispute. Specifically, appellant alleges that the witness made five inflammatory and irrelevant statements: (1) appellant mutilated and tortured a lizard; (2) he was fascinated by skulls; (3) he was fascinated with the occult; (4) he wore a necklace with an affixed mushroom talisman; and (5) appellant, while watching a television program, made a comment that he would Ahave hung them from their toes and peeled all the flesh off their body.@ Appellant also alleges that the witness=s delivery of the testimony was overly emotional and inappropriately influenced the jury.

A. Analysis of Rule 404(b)

Texas Rule of Evidence 404(b) establishes that Aevidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.@ Tex. R. Evid. 404(b). The rule prohibits the use of character evidence and is designed to prevent the trier of fact from inferring that the person acted in conformity with that character trait. Johnstonv. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004).

Extraneous act evidence, however, may be admissible if it logically proves some other fact. Id. Acceptable purposes to allow admission of such evidence include proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); see Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex. Crim. App. 1972). The threshold inquiry to admit extraneous evidence is whether that evidence is relevant to prove a material issue or simply to define the defendant=s character. See Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). Furthermore, where intent is a material issue in the case, and cannot be inferred from the act itself, then extraneous evidence is relevant. Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim. App. 1985).

Regardless of whether the trial court erred in admitting the extraneous evidence, we find that the evidence would not have led to the rendition of an improper verdict. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A criminal conviction should not be overturned if, after examining the record in its entirety, the appellate court has fair assurance the error had only slight effect and did not influence the jury=s decision. Johnson, 967 S.W.2d at 417.

There are several reasons the admission of the contested evidence was harmless. We note that there was a limiting instruction given to the jury requiring that the fiancée=s testimony about appellant=s extraneous acts only be considered on the issues of motive or intent, which greatly reduced any potentially damaging or prejudicial effect it may have had.

Furthermore, and most importantly, the other evidence proffered by the State at trial was, as we have found, sufficient to support the jury=s verdict. There was a great amount of properly admitted evidence to provide fair assurance that the jury=s decision was not based on any improper extraneous evidence. Johnson, 967 S.W.2d at 417. This includes evidence that appellant provided a large knife to Fletcher, was present at the scene of the crime, provided him with liquor and viewed a violent movie with him before the murder, instructed him on how to more efficiently hold the knife provided, allowed him a safe harbor after the killing, concealed the weapon in his apartment, and allegedly participated in the stabbing of decedent.

Finally, the contested extraneous evidence only carried a minor amount of weight in comparison to the properly admitted evidence. The extraneous acts admitted were not criminal in nature and only slightly deviant, while the stated properly admitted evidence is much more probative in determining if appellant acted criminally. The potential harm would be defused by the properly admitted evidence. King, 953 S.W.2d at 273.

B. Analysis of Rule 403

Extraneous act evidence, assuming it is logically relevant beyond establishing character propensity, is admissible upon the trial court=s determination that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh=g). In other words, extraneous act evidence will almost always require a balancing under Rule 403. Castaldo v. State, 78 S.W.3d 345, 350 (Tex. Crim. App. 2002).

However, Aan objection that proffered evidence amounts to proof of an >extraneous offense= will no longer suffice, by itself, to invoke a ruling from the trial court whether the evidence, assuming it has relevance apart from character conformity, is nevertheless subject to exclusion on the ground of unfair prejudice.@ Montgomery, 810 S.W.2d at 388. Once a rule 404(b) objection is made, a further objection based on rule 403 is specifically required to ensure a balancing of probative weight against the prejudice it will instill in the jury. Id.

Appellant failed to object on rule 403 grounds. The trial objections to the extraneous evidence specifically state that relevance is the grounding for the objection. To preserve the right of appellate review when an appellant claims that the trial court erred in admitting or excluding evidence, a proper and specific objection at the time the evidence was offered or excluded must be made. Moff, 131 S.W.3d at 489. Thus, the issue of whether the evidence was unfairly prejudicial is not properly before this court. See Tex. R. App. P. 33.1.

Finally, appellant also alleges that the witness=s testimony was overly emotional and only sought to unduly influence the jury. However, appellant failed to provide a citation to authority explaining how this applies to, or is, an extraneous act under Texas Rule of Evidence 404(b). Thus, appellant has waived his right to our review of this issue. See Tex. R. App. P. 38.1(h).

Accordingly, we overrule appellant=s second issue.

 IV. CONCLUSION

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 14th day of July, 2005.