Jose Escobedo v. State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-00-00356-CR
Jose ESCOBEDO,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th District Court, Bexar County, Texas
Trial Court No. 99-CR-1475
Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: April 25, 2001

AFFIRMED

Jose Escobedo was found guilty of murder by a jury. The jury sentenced him to twenty-five years in the Texas Department of Criminal Justice. Escobedo appeals his conviction in three points of error alleging that the evidence is factually insufficient and that the trial court erred in admitting evidence of extraneous misconduct. Finding no error, we affirm the trial court's judgment.

Factual and Procedural Background

Jose Escobedo shot and killed his wife Angie following a separation of several months. Escobedo had been unhappy with the separation and this was not the first time Angie had left him. The testimony revealed that she left the first time after Escobedo slapped her and the second time after he pressed his fingers and knuckles against her throat, leaving marks. It was testified that Angie had decided she would not return to the marriage this time.

On the day of the shooting, the two visited an automobile dealership about getting Angie a car. Later that afternoon Angie went to Escobedo's house. Before she arrived, Escobedo called and spoke to Angie's roommate. He told the roommate that Angie had been drinking all day. What happened next is unclear, but shortly after Angie entered the house, the two were in the bedroom when Escobedo shot her in the back of the head. Escobedo's youngest son testified that he heard the two arguing shortly before the gunshot. Escobedo testified at trial that the shooting was an accident. He said Angie stormed into the room and he thought he saw the butt of a rifle in her hand. Afraid for his life, he reached under the mattress for a holster with a loaded pistol. When Escobedo removed the pistol from the holster he claimed it accidentally discharged, striking Angie.

The medical examiner testified that he found no alcohol present in Angie's system. Police testified that there were no bullets in the rifle Angie allegedly held. Also, the rifle was found away from Angie's body, propped up against one of the bedroom's walls. A firearms expert testified that the pistol Escobedo claimed accidentally discharged had a safety mechanism that was not in perfect working order. However, he also testified that one would have to do more than just remove the gun from its holster to discharge it.

The jury chose not to believe Escobedo's story, convicted him of murder, and sentenced him to twenty-five years. Escobedo appeals claiming that the evidence was factually insufficient to uphold the conviction and that the trial court erred in allowing testimony of his prior abusive behavior towards Angie.

Sufficiency of the Evidence

Escobedo maintains he did not intend to shoot his wife. He contends the State's evidence against him was minimal and that the evidence overwhelmingly supports his version of events. According to his version of events, Angie went willingly to his house that night. He thought she had a rifle so he pulled the pistol out in fear for his life and it discharged accidentally. He further points to testimony that the safety mechanism on the pistol was faulty. Also, he presented testimony that Angie had pointed a gun at him in the past.

Standard of Review

In a factual sufficiency review, we must view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A factual sufficiency review must be appropriately deferential. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The appellate court's evaluation cannot substantially intrude upon the role of the trier of fact as the sole judge of the weight and credibility of witness testimony. See id. A determination that the evidence is factually insufficient is proper only when the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Id.

Escobedo admitted shooting Angie. The question for the jury was whether he intended to do so, or whether it was an accident resulting from an act of self-defense. Escobedo testified that it was an accidental discharge from the gun that killed his wife. The firearms expert testified that the gun's safety was not functioning properly. Two of Escobedo's children, raised by both he and Angie, testified that they had seen her hold a gun on their father one time in the past. However, there was evidence that countered Escobedo's story.

The jury heard testimony that in the past Escobedo had slapped Angie and had pressed his fingers and knuckles against her throat. Margarita Caballero, a friend of Angie's, testified that this so frightened and upset Angie that she left Escobedo and came to her house. The jury also heard the call notes tape of a message Escobedo left the day before the murder. On the tape Escobedo repeatedly said that if Angie did not call him back, she would regret it. At the scene of the shooting, the unloaded rifle Angie supposedly held when Escobedo shot her was found some distance away from the body, propped up against a wall. The firearms expert testified that although the safety of the gun Escobedo used did not always function properly, the gun would have to be dropped, slammed, or have some force applied to the butt for the gun to fire accidentally. Otherwise, the only way it would discharge would be if the trigger were pulled. The expert testified the gun would not fire merely because it was picked up or taken out of its holster.

There was testimony that Escobedo had pulled a gun on Angie in the past. Also in evidence before the jury was a conversation with Angie's roommate right before the shooting. Escobedo told the roommate Angie had been drinking all day. Escobedo told the first officer to arrive at the scene that Angie had "stumbled" into the room before he accidentally shot her. However, the medical examiner testified that Angie had no alcohol in her system. It is possible the jury interpreted this as Escobedo trying to set up a defense for himself.

There was conflicting evidence. Yet, the evidence against Escobedo is not minimal as he argues. The jurors judged the weight and credibility of the witnesses and found ample evidence to determine that Escobedo was guilty of murder. The jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. We overrule Escobedo's first point of error.

Extraneous Misconduct Evidence

Escobedo argues in points of error two and three that the trial court erred in admitting evidence that he had previously physically abused Angie and that on one occasion he pointed a gun at her. The State responds that this was not preserved for review because Escobedo's objection at trial was not sufficiently specific. However, when the trial judge is aware of what counsel is objecting to because of a motion in limine, it may be sufficient to preserve review. See Thomas v. State, 1 S.W.3d 138, 143 (Tex. App.-Texarkana 1999, pet. filed); Snellen v. State, 923 S.W.2d 238, 242 (Tex. App.- Texarkana 1996, no pet.). Here there was a pretrial motion regarding the evidence of prior abuse. The evidence was heard by the court outside the presence of the jury. Defense counsel objected both pretrial and at trial. When the testimony was then actually heard in front of the jury, counsel objected with a non-specific objection. We believe the trial court was aware of defense counsel's objection to the evidence because of the pretrial and trial objections to the same evidence based on Tex. R. Evid. 403 and 404(b). Therefore, in light of the record and in the interest of justice, we will review Escobedo's second and third points of error.

The defense presented evidence that Angie was a money-driven woman who became angry when Escobedo did not give her what she wanted. The defense portrayed Angie as an angry woman who stormed over to Escobedo's house, grabbed a gun, and scared him to the point that he reached for a gun in self-defense. The trial court ruled that the defense that Escobedo was relying on allowed the State to counter this portrayal of the relationship between Escobedo and Angie. The testimony of prior abuse was allowed under Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 2001). (1)

Standard of Review

The trial court's admission of extraneous offense evidence is reviewed under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996); Saenz v. State, 843 S.W.2d 24, 26 (Tex. Crim. App. 1992). Testimony allowed under article 38.36(a) must still comport with Tex. R. Evid. 403 and 404(b). See Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999). The court must initially find that the non-character conformity purpose for which the evidence is offered is relevant to a material issue. See id. Then the court must balance the probative value against the factors of Rule 403. Tex. R. Evid. 403; see Smith v. State, 5 S.W.3d at 679.

The evidence was relevant because of Escobedo's portrayal of the relationship between he and Angie. Escobedo testified that he never physically hurt Angie. He contended their only arguments were over finances. He claimed the shooting was an accident and that he had been frightened into acting in self-defense. See Booker v. State, 929 S.W.2d 57, 63 (Tex. App.- Beaumont 1996, pet. ref'd) (quoting Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.-Houston [1st Dist.] 1992, no pet.) which states that when an accused claims self-defense or accident, the State may show other violent acts where the defendant was the aggressor); Yohey v. State, 801 S.W.2d 232, 236 (Tex. App.-San Antonio 1990, pet. ref'd) (stating extraneous offenses are admissible to rebut a defensive theory).

We hold that the evidence of prior abuse, which includes Escobedo's holding a gun on Angie on one previous occasion, is admissible under article 38.36, and Tex. R. Evid. 403 and 404(b). The evidence was allowed because it showed Escobedo's motive and the absence of accident or mistake in the shooting. It was therefore relevant beyond its character conformity value. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990)).

A Rule 403 balancing test presumes relevant evidence is more probative than prejudicial. See id. The appellate court should be deferential to the trial court in a review of whether the probative value is substantially outweighed by the danger of unfair prejudice. See Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). The appellate court should only reverse the trial court after a clear abuse of discretion is established. See id. Escobedo claims the evidence is more prejudicial than probative. However, the rules which provide for the exclusion of extraneous evidence are designed to reduce the risk that the fact finder will improperly convict on evidence unconnected to the crime. In this case, the abusive acts were undoubtedly connected to the crime. The evidence came in to show motive and absence of accident. The evidence was important to rebut Escobedo's portrayal of his relationship with Angie and the events of the day in question. This is particularly true because only Escobedo and Angie were in the room at the time of the shooting. See Montgomery, 810 S.W.2d at 392 (ruling that in a Rule 403 analysis it is also important to consider the State's need for the evidence). Under these circumstances, the trial court did not abuse its discretion in finding the evidence more probative than prejudicial.

We hold the trial court did not abuse its discretion in admitting the testimony of prior abuse, including the testimony that Escobedo had once held a gun on Angie. We overrule Escobedo's points of error two and three.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. Article 38.36(a) provides as follows:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. Id.