RICHARD NICKLESON v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

 NUMBERS 13-04-00053-CR & 13-04-00082-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

RICHARD NICKLESON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 105th District Court of Nueces County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

 Memorandum Opinion by Justice Hinojosa

Pursuant to a plea agreement, appellant, Richard Nickleson, pleaded guilty in cause number 13-04-082-CR[1] to the offense of possession of a controlled substance.[2] In accordance with the plea agreement, the trial court assessed appellant=s punishment at ten years= imprisonment and a $2000 fine, suspended the prison sentence, and placed him on community supervision for ten years.

Appellant was later charged with the offense of murder[3] in cause number 13-04-053-CR.[4] A jury found him guilty of murder and assessed his punishment at thirty-eight years=imprisonment and a $10,000 fine.

Taking judicial notice of the proceedings in cause number 13-04-053-CR, the trial court found that appellant had violated the conditions of his community supervision in cause number 13-04-082-CR. The trial court revoked appellant=s community supervision and ordered that appellant serve the ten-year sentence previously imposed. The trial court also ordered that the two sentences run consecutively.

The trial court has certified that these two cases are not plea bargain cases, and appellant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). In cause number 13-04-053-CR, appellant asserts the following four points of error: (1) the trial court erred in denying his motion for mistrial because of the improper admission of extraneous offense evidence; (2) the trial court admitted unfairly prejudicial evidence; (3) the evidence was factually insufficient to support his conviction; and (4) the evidence was legally insufficient to support his conviction. In cause number 13-04-082-CR, by a single point of error, appellant contends the trial court lacked sufficient evidence to justify revoking his community supervision. For the sake of clarity, we will address each cause separately.

The issues of law presented by this case are well settled and the parties are familiar with the facts. Therefore, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Cause Number 13-04-053-CR

1. Admission Of Extraneous Offense

By his first point of error, appellant complains the trial court erred in denying his motion for mistrial. Appellant raised this motion after the State revealed to the jury that appellant had a prior felony conviction.

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990). The mere asking of an improper question will not constitute reversible error unless the question results in obvious harm to the accused. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). An instruction to disregard will be presumed effective unless the facts of the case Asuggest the impossibility of withdrawing the impression produced on the minds of the jury.@ Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (citing Hatcher v. State, 43 Tex. Crim. 237, 65 S.W. 97, 98 (1901)). Although not expressly adopted as exhaustive or definitive, the Texas Court of Criminal Appeals has relied on several factors when determining whether an instruction to disregard cured the prejudicial effect. Id.; Veteto v. State, 8 S.W.3d 805, 811 (Tex. App.BWaco 2000, pet. ref=d). These factors include (1) the nature of the error, (2) the persistence of the prosecution in committing the error, (3) the flagrancy of the violation, (4) the particular instruction given, (5) the weight of the incriminating evidence, and (6) the harm to the accused as measured by the severity of the sentence. Waldo, 746 S.W.2d at 754; Veteto, 8 S.W.3d at 811.

Applying these factors to the case at hand, we conclude that any prejudice caused by the admission of appellant=s extraneous offense was cured by the trial court=s instructions. The record shows that the State brought attention to the extraneous offense on only one occasion. On this occasion, the State asked a witness if she knew that appellant had been convicted of a felony, after the witness had voiced a favorable opinion of appellant=s character during questioning by appellant=s counsel.[5] This question was followed immediately by a sustained objection and a curative instruction by the trial court. Reviewing this exchange in the light of the Waldo factors, we conclude that the prejudicial effect of the question by the prosecution was not of such a nature that it could not be cured by an instruction to disregard. Accordingly, we hold the trial court did not err in refusing to grant a mistrial on this basis. Appellant=s first point of error is overruled.

2. Prejudicial Evidence

In his second point of error, appellant contends the trial court erred in allowing the State to present evidence of appellant=s drug transaction with the victim shortly before the murder.

Appellant objected under rules 404(b) and 403 of the rules of evidence. See Tex. R. Evid. 404(b), 403. The trial court overruled appellant=s objections and allowed the witness to testify that he saw appellant and the victim engage in a drug transaction shortly before the murder. In reviewing the trial court=s determination of admissibility under both rules 404(b) and 403, we apply an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).

Under rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove a person=s character and/or to show that the person acted in conformity with that character. See Tex. R. Evid. 404(b). However, such evidence may be admitted if it is relevant to motive, identity, intent, opportunity, preparation, plan or absence of mistake. Id. As the court of criminal appeals has explained, AIt has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.@ Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (citing Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)).

The State=s theory in this case was that a dispute arose between appellant and the victim, possibly arising from the prior drug transaction that had taken place between them earlier that same day. Thus, the drug transaction evidence was relevant evidence of motive to show an intent to kill and is permissible under rule 404(b). Because appellant's drug transaction with the victim was relevant to show the motive for the victim's murder, rather than mere conformity with character, the trial court did not abuse its discretion in allowing it.

Even though evidence is admissible under rule 404(b), it may still be excluded under Rule 403 if the danger of unfair prejudice substantially outweighs its probative value. In making this determination, a trial court should consider (1) how probative the evidence of the extraneous offense is, (2) the potential for the extraneous offense to impress the finder of fact in some irrational but nevertheless indelible way, (3) the amount of time the proponent will need to develop the evidence, and (4) the proponent=s need for this evidence to prove a fact of consequence. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

Applying the Wyatt factors, we conclude the following: (1) evidence of the drug transaction was probative of appellant=s motive in murdering the victim; (2) there was not an overwhelming potential for the evidence to impress the jury in an irrational way; (3) the State needed little time to develop the evidence in the course of putting on the witness=s testimony; and (4) the State needed the evidence to prove a fact of consequence B appellant=s motive for the murder. While it is true that evidence of a drug transaction may prejudice a jury to some extent, we conclude that, in the context of this case, the danger of any unfair prejudice does not substantially outweigh the probative value of the evidence. Balancing the relevance of the evidence against the danger of unfair prejudice, we conclude the trial court did not abuse its discretion in overruling appellant=s rule 403 objection. Appellant's second point of error is overruled.

3. Legal And Factual Sufficiency of the Evidence

In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction for murder. Specifically, appellant asserts the evidence is not legally and factually sufficient to prove his involvement in the victim=s murder.

a. Legal Sufficiency

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). ASuch a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Id.

Section 19.02 of the penal code provides that a person commits the offense of murder if the person A(1) intentionally or knowingly causes the death of an individual; [or] (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.@ Tex. Pen. Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).

The testimony of police officer Roy Gardner implicated appellant as the party responsible for the victim=s death. Gardner said he spoke with Guy Nickleson and Troy Nickleson, appellant=s uncles, prior to arresting appellant. Gardner testified that in separate conversations with Guy and Troy, each stated that appellant had admitted to fatally shooting an individual but claimed it was in self-defense. When Gardner raised this topic during his testimony about his conversation with Guy, appellant objected on hearsay grounds. The State asserted that Gardner=s testimony was not being offered for the truth of the matter asserted, leading the trial court to overrule appellant=s objection.

Later, Gardner testified about his conversation with Troy, during which appellant=s admitted involvement in a fatal shooting was revealed. Appellant did not object to this testimony. Because this testimony was not offered or admitted under any limitation, the evidence was available for the jury=s use in assessing appellant=s guilt. In addition to this evidence, the State presented testimony from three witnesses that placed an individual matching appellant=s physical description at the scene of the crime seconds before and after the victim was shot and killed. Furthermore, witness testimony revealed that appellant had initially avoided contact with law enforcement personnel shortly after the murder.

We hold that any rational trier of fact could have found the essential elements of the offense of murder beyond a reasonable doubt. Accordingly, we hold the evidence is legally sufficient to support the jury=s finding that appellant committed murder. Appellant=s fourth point of error is overruled.

b. Factual Sufficiency

We measure the factual sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if Aproof of guilt is so obviously weak as to undermine confidence in the [fact-finder=s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.@ Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We are also required to accord due deference to the fact-finder=s determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; see Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

After reviewing all of the evidence, we conclude that the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is factually sufficient to support the jury=s finding that appellant committed the offense of murder. Appellant=s third point of error is overruled.

The judgment of the trial court in cause number 13-04-053-CR is affirmed.

B. Cause Number 13-04-082-CR

Appellant complains that the evidence presented at his revocation hearing was not sufficient to show that he violated the terms of his community supervision.

We review a trial court=s imposition or revocation of community supervision under an abuse of discretion standard. See Belt v. State, 127 S.W.3d 277, 280 (Tex. App.BFort Worth 2004, no pet.). An order revoking community supervision must be supported by a preponderance of the evidence. See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). In other words, the burden of proof is on the State to establish that the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision. See Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.BWaco 2001, pet. ref=d).

On appeal, this Court must view the evidence presented at the revocation hearing in the light most favorable to the trial court=s decision. See Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.BBeaumont 1999, no pet.). When a trial court fails to make specific findings of fact and conclusions of law, it is presumed that the court made the necessary findings to support its decision. Ice v. State, 914 S.W.2d 694, 695 (Tex. App.BFort Worth 1996, no pet.). The reviewing court does not engage in its own fact finding, but rather must review the entire record to determine whether there are any facts that lend support for any theory upon which the trial court's decision can be sustained. Id. at 696. If the implied or actual finding is supported by the record, it must be sustained. Id.

After taking judicial notice of the prior proceedings before the jury in appellant=s murder trial, the trial court found that appellant had violated the terms of his community supervision. We have held that the evidence presented at that trial was legally and factually sufficient to support appellant=s conviction for murder. Accordingly, we conclude the trial court did not abuse its discretion in finding that appellant had violated the conditions of his community supervision. Appellant=s sole point of error is overruled.

The judgment of the trial court in cause number 13-04-082-CR is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

[1] Trial court cause number 02-CR-2320-D.

[2] See Tex. Health & Safety Code Ann. ' 481.115(a), (d) (Vernon 2003).

[3] See Tex. Pen. Code Ann. ' 19.02 (Vernon 2003).

[4] Trial court cause number 03-CR-1839-D.

[5] The court of criminal appeals has stated the following regarding character evidence:

While Aevidence of a person=s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion,@ the accused in a criminal case may place his character in issue by offering evidence of his good character. Rule 404(a)(1)(A). By placing his character in issue, however, the accused Aopens the door@ for the State to rebut evidence of his good character with its own evidence of the accused=s bad character. On cross-examination, the State may test the character witness= familiarity with the defendant=s character or demonstrate that the witness has a low standard for what he considers good character by inquiring into prior specific instances of conduct that are inconsistent with the particular character trait, but the State may not offer extrinsic evidence regarding the prior incidents solely to show the character witness is Awrong@ in his opinion. Rule 405(a).

Wheeler v. State, 67 S.W.3d 879, 887 n. 16 (Tex. Crim. App. 2002).