Norma Linda Cardenas v. The State of Texas--Appeal from 46th District Court of Wilbarger County (majority)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
APRIL 5, 2012
NORMA LINDA CARDENAS, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 11,298; HONORABLE DAN MIKE BIRD, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Norma Linda Cardenas, appeals her conviction for the offense of
murder,1 and sentence of confinement in the Institutional Division of the Texas
Department of Criminal Justice (ID-TDCJ) for a term of life. By one issue, appellant
contends the trial court committed reversible error in admitting testimony regarding
extraneous offenses. We disagree and will affirm the conviction.
See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011).
Factual & Procedural Background
On May 30, 2009, Jordan Eli Ramirez, was struck and killed by a Chevrolet
Tahoe SUV that belonged to appellant. At the time Ramirez was struck and killed, the
vehicle was being driven by David Hamilton and appellant was a passenger in the SUV.
Earlier in the evening, appellant had attended a party at Rachel Garcia’s house.
Ramirez was not in attendance at the party. Later in the evening, appellant and several
other individuals left the Garcia home and went to appellant’s house with the intention of
continuing the party.
When the group arrived at appellant’s home, Ramirez came out of the front door
and an altercation with appellant erupted.
Ramirez struck appellant during this
altercation and, after appellant sought refuge in her SUV, Ramirez broke the driver’s
Eventually, appellant fled from the house.
Edgar Morales, who had
attended the party at the Garcia home, drove to an Allsups convenience store. After he
had been there a short while, appellant’s SUV drove up with David Hamilton driving and
appellant seated in the front passenger seat. David Hamilton had not attended the
Hamilton came over to Morales’s vehicle and inquired whether Morales had any
weapons with him. Hamilton stated he needed a weapon because appellant asked him
to get one in order to “show [Ramirez] how it feels to be beaten by someone else.”
Morales testified that appellant pointed out Ramirez walking down the street and told
Hamilton to go get him. Hamilton pulled the SUV out of the parking lot of Allsups and
headed in the direction of Ramirez. Morales followed appellant’s SUV out of the Allsups
Morales caught up with Ramirez and observed that Ramirez looked scared.
Ramirez informed Morales that the SUV had just attempted to run him down. When
asked if he wanted a ride home, Ramirez pointed out that he was actually in front of his
house. Morales then observed Ramirez go into the house.
Residing in the house was Ramirez’s father, Pedro Ramirez. After Ramirez went
inside, he stayed a very short period of time before he and his father came back outside
and Ramirez went into the street. Fearing his son was going to be involved in a fight
with someone, Pedro Ramirez went into the house to grab a baseball bat. As the father
came back outside, he heard a vehicle revving up its engine and then the tires digging
into the road as the vehicle accelerated rapidly. Pedro Ramirez looked up in time to see
the SUV strike his son. The 911 operator was called and EMS came to the scene.
Ramirez was taken to the hospital where he was pronounced dead.
All witnesses agreed that the vehicle that struck Ramirez was appellant’s SUV.
Further, there was no dispute during the trial that Hamilton was driving the SUV at the
moment it struck Ramirez. The entire dispute was the role of appellant in the death of
During the opening statement for appellant, trial counsel stated that appellant
had no agreement with Hamilton regarding Ramirez.
Further, trial counsel said
appellant was just a passenger and had no intent to kill Ramirez. This theory of the
case continued during the presentation of evidence. During the cross-examination of
Morales, trial counsel elicited testimony that appellant never said she wanted to have
Ramirez killed or that she even wanted to hurt Ramirez.
As a result of the opening statement of trial counsel and the cross-examination of
witnesses, the State concluded that appellant’s defense was that she was only a
passenger and lacked any intent to harm Ramirez. Accordingly, the State offered the
testimony of Marty Leija, the former husband of appellant. The trial court first heard the
testimony of Leija out of the presence of the jury. Appellant objected to the testimony
under Texas Rule of Evidence 404(b) and 403. See TEX. R. EVID. 403, 404(b).2 The
trial court overruled the objections and Leija was allowed to testify.
Leija testified to events that happened during his marriage with appellant,
specifically that appellant would become very angry with him and respond with physical
violence. On one occasion, Leija and appellant were arguing and appellant told Leija to
leave. When Leija did not leave, she began striking Leija with a baseball bat, and
eventually broke a window in his car when he attempted to flee. A second incident
involved an argument between the two after both had been drinking. On this occasion,
as Leija was walking out of the house, appellant struck Leija in the back of the head with
a bottle of rum. Leija’s neighbor witnessed the assault and, after Leija had cleaned
himself up, invited Leija to his house. While in his neighbor’s backyard, Leija was
enticed by appellant to jump over the fence and come back to his own house. When
Leija jumped the fence, appellant stabbed him in the back with a knife. When the
Further reference to Texas Rules of Evidence will be by reference to “Rule
court’s charge was prepared, the trial court gave a charge that properly limited the use
of the extraneous offense evidence.
After hearing the evidence, the jury returned a verdict of guilty. The same jury
subsequently sentenced appellant to confinement for life in the ID-TDCJ. Appellant
perfected her appeal and brings forth a single issue: that the trial court committed
reversible error in allowing the extraneous offense evidence. Appellant’s issue is limited
to the Rule 403 portion of the trial objection. We disagree with appellant and affirm the
Standard of Review
As appellant=s issue relates to the trial court=s admission of evidence, we review
the decision under the abuse of discretion standard.
See Billodeau v. State, 277
S.W.3d 34, 39 (Tex.Crim.App. 2009). The test for abuse of discretion is whether the
trial court acted without reference to any guiding rules and principles. Montgomery v.
State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).
A reviewing court applying the
abuse of discretion standard should not reverse a trial judge=s decision whose ruling
was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102
Once a trial court rules that uncharged misconduct evidence is not barred under
Rule 404(b), as occurred in this case, the opponent of the evidence may further object
under Rule 403. See Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). Rule
403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” Rule 403. “Unfair prejudice does not, of course, mean that the
evidence injures the opponent's case -- the central point of offering evidence. Rather it
refers to an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” Garza v. State, No. 07-09-00295-CR, 2011
Tex. App. LEXIS 6480, at *16 (Tex.App.—Amarillo Aug. 15, 2011, pet. ref’d) (mem. op.)
(quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex.Crim.App. 1993)). The use of the
word “may” in Rule 403 reflects an intent that the trial judge be given very substantial
discretion in balancing probative value and unfair prejudice, and that this determination
should not be reversed simply because a reviewing court believes that it would have
decided the matter otherwise. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.
2003) (citing Montgomery, 810 S.W.2d at 379).
When evidence is objected to under Rule 403, the trial court must balance the
probative value of the evidence with the danger of unfair prejudice, but starts with a
presumption favoring probative value. See Feldman v. State, 71 S.W.3d 738, 754-55
In performing the required balancing, a trial court should
consider (1) the inherent probative force of the proffered item of evidence along with (2)
the proponent's need for that evidence against (3) any tendency of the evidence to
suggest decision on an improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or repeat evidence already admitted. Casey, 215 S.W.3d at
Initially, we observe that, from the beginning of the trial, appellant pursued a
strategy of contending that she was merely a passenger in the SUV that struck
Ramirez. During opening statement, trial counsel stated, “[David] Hamilton was driving.
There was no plan. There was no agreement. My client was merely a passenger in the
vehicle.” Later in the opening statement, trial counsel said, “She had no intent to kill
him, no intent to harm him and she wasn’t in control of the situation because she was
the passenger and David Hamilton was the driver.”
her intent squarely before the jury.
This strategy placed the issue of
See Bass v. State, 270 S.W.3d 557, 563
(Tex.Crim.App. 2008). Such is especially true in a situation, such as ours, where the
intent of the actor cannot be inferred from the act itself. See Brown v. State, 96 S.W.3d
508, 512 (Tex.App.—Austin 2002, no pet.).
Additionally, trial counsel continued to
pursue this strategy in his cross-examination of witnesses, especially Morales.
During Morales’s direct testimony, he testified that he overheard appellant asking
where Ramirez was so that Hamilton could fight him. Morales also testified that, when
appellant saw Ramirez walking down the street, appellant told Hamilton to go and get
During cross-examination of Morales, trial counsel asked if appellant ever
specifically said she wanted to kill Ramirez. Trial counsel also inquired as to whether
appellant ever specifically said she wanted to hurt Ramirez. From the questioning of
this witness on cross-examination, the strategy of appellant was apparent: appellant
had no intent to harm, much less kill, Ramirez. Accordingly, her intent was squarely
before the jury.
In conducting the Rule 403 analysis, we begin with the inquiry into the inherent
probative value of the evidence.
See Casey, 215 S.W.3d at 880. “‘[P]robative value’
refers to the inherent probative force of an item of evidence--that is, how strongly it
serves to make more or less probable the existence of a fact of consequence to the
litigation--coupled with the proponent’s need for that item of evidence.” Id. at 879. By
trial counsel’s trial strategy of attacking the issue of appellant’s intent to cause harm to
the victim, appellant’s prior actions upon becoming angry with her romantic partner
became very probative to the jury. Accordingly, this element leans toward resolution of
the Rule 403 objection in favor of the State.
The second part of the analysis of probative value requires us to look at the
proponent’s need for the evidence. Id. at 880. Appellant was charged under a parties
theory. Clearly, the evidence proved that David Hamilton was driving the vehicle at the
time it struck the victim. Under the parties charge, the State was required to prove that
appellant was acting with the intent to promote or assist David Hamilton in the
commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). The
intent of appellant at the time of the offense is the key to the charge. This is especially
true in these circumstances where the act itself does not infer the intent. See Brown, 96
S.W.3d at 512. The proponent’s need for the evidence supports the trial court’s ruling.
We must next examine the tendency of the evidence to suggest a decision on an
improper basis; this is the unfair prejudice prong of the analysis. Casey, 215 S.W.3d at
883 (citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d
574 (1997)). As pointed out earlier, unfair prejudice does not arise from the mere fact
that evidence injures a party’s case, as that is the central point in offering evidence.
See Garza, 2011 Tex. App. LEXIS 6480, at *16. Evidence is unfairly prejudicial when
the adverse effect on the opponent goes beyond tending to prove the fact at issue that
justifies its admission. Casey, 215 S.W.3d at 883. Appellant’s sole argument on this
issue is that the evidence of her treatment of Leija left an indelible impression on the
jury. Even if that is the case, does the indelible impression allow the jury to make a
decision on an emotional or otherwise improper basis as a result of hearing this
evidence? We think not, more especially since, from the outset of the trial, the strategy
of the appellant was to portray herself as a mere passenger in the vehicle.
evidence at issue went to the heart of appellant’s defensive theory. Accordingly, we find
that the probative value was not substantially outweighed by the danger of unfair
prejudice. See Rule 403.
From a review of the record, it does not appear that the jury was distracted by
this evidence nor that the evidence caused any confusion to the jury.
reveals that the evidence was argued by the State in the context of proving the issue of
intent. This was the central issue in the case. Further, the record reveals that the
court’s charge properly limited the jury’s use of the evidence. Finally, a review of the
record shows that the time taken up in the presentation of this evidence was something
less than 11 pages in the reporter’s record as opposed to the total trial testimony of 136
In the final analysis, the trial court’s ruling was within the zone of reasonable
disagreement. See Green, 934 S.W.2d at 102. Therefore, in admitting the evidence
before the jury, the trial court did not abuse its discretion. See Billodeau, 277 S.W.3d at
39. Accordingly, we overrule appellant’s single issue.
Having overruled appellant’s only issue, we affirm the trial court’s judgment of
Mackey K. Hancock
Do not publish.