                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 STEVEN EDWIN STEMBRIDGE,                       §
                                                                No. 08-07-00181-CR
                   Appellant,                   §
                                                                   Appeal from the
 v.                                             §
                                                             355th Judicial District Court
                                                §
 THE STATE OF TEXAS,                                           of Hood County, Texas
                                                §
                   Appellee.                                      (TC# CR10094)
                                                §


                                          OPINION

        Steven Edwin Stembridge appeals his murder conviction. A jury found him guilty and

assessed punishment at 45 years’ confinement. Appellant asserts in a single issue that the trial

court erred in admitting extraneous conduct by Appellant into evidence in violation of Texas

Rule of Evidence 404(b), prejudicing his substantial rights. We affirm the trial court’s decision.

       David Schermer’s body was discovered in Hood County, Texas, floating next to a

partially submerged car in Lake Granbury. He had been shot several times at close range. The

night before his death, the victim, Appellant, Issac Cantrell, and others were at David Bridges,

a.k.a. Dooner’s house, smoking methamphetamine. Appellant asked Mr. Cantrell to drive him

down the road to “Pork Chop’s” house. When they arrived, Appellant knocked on the front door,

but no one answered. Appellant got back inside the car, and told Mr. Cantrell to back up.

Mr. Cantrell backed the car up and then Appellant began shooting at the house. Afterwards, the

two men returned to Dooner’s; nothing more was said about the shooting.

       Later that night around 4:30 a.m., Appellant asked Mr. Schermer for a ride home.
Appellant claimed that during the car ride, Mr. Schmerer pulled out a gun and fired it in front of

his face. According to Appellant’s confession, he was in fear of his life when the gun was fired,

so he took away Mr. Schermer’s gun and shot him in the head. With the car stopped, Appellant

moved Mr. Schermer to the back seat. When Mr. Schermer continued to moan in pain, Appellant

shot him with the rest of the bullets in the gun. Appellant confessed Mr. Schermer had another

gun, which he used to shot Mr. Schermer several more times. He then threw both guns off the

Pearl Street Bridge, into Lake Granbury. Appellant, then drove Mr. Schermer’s car into the lake

and left Mr. Schermer’s body in the water.

       The Texas Department of Public Safety subsequently found the guns in the lake. The

shell casings from the victim’s body, as well as, from the shooting at Pork Chop’s home matched

the guns found in the lake. Appellant was indicted by a grand jury for murder.

       The sole issue Appellant presents to the Court is whether the trial court erred in admitting

extraneous evidence under Texas Rule of Evidence 404(b), of Appellant shooting at Pork Chop’s

home hours before Mr. Schemer was killed. Appellant makes three contentions within his single

issue: (1) that the shooting at Pork Chop’s home had no relevance apart from its tendency to

prove conduct in conformity with character; (2) that the introduction of that evidence prejudiced

Appellant’s substantial rights; and (3) that the admission of extraneous evidence that a defendant

has not been convicted of is reversible error. The State contends that the evidence Appellant

complains of is not extraneous evidence. The State contends that Appellant claimed self-

defense, which allowed the State to show other violent acts where Appellant was an aggressor to

prove Appellant’s intent to commit murder. Further, the State asserts that the probative value of

the evidence outweighed any prejudicial effect associated with the evidence.


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       We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1991)(Op. on

reh’g); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.--Houston [1st Dist.] 2000, pet. ref’d).

An abuse of discretion occurs only when the trial court’s decision is so clearly wrong as to lie

outside the zone within which reasonable persons might disagree. Montgomery, 810 S.W.2d at

391; Roberts, 29 S.W.3d at 600. Generally, a defendant’s prior crimes or bad acts are

inadmissible to prove he has a bad character or a propensity to commit the offense charged.

Montgomery, 810 S.W.2d at 391. Such evidence, however, may be admissible for other

purposes, such as proof of motive, intent, plan, knowledge, or lack of mistake or accident. Id. at

387. When the accused claims self-defense or accident, the State, in order to show the accused’s

intent, may show other violent acts where the defendant was an aggressor. Bradley v. State, 960

S.W.2d 791, 803 (Tex.App.--El Paso 1997, pet. ref’d), citing Halliburton v. State, 528 S.W.2d

216, 217-18 (Tex.Crim.App. 1975).

       Under Texas Rules of Evidence, the admissibility of extraneous offenses involves a two-

part balancing test: (1) Whether the extraneous misconduct evidence is relevant to a fact of

consequence in the case apart from its tendency to prove conduct in conformity with character;

and (2) whether the probative value of the evidence is strong enough that it is not substantially

outweighed by unfair prejudice. See Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001).

       If the answer is “YES” to both questions, then the evidence is admitted. Montgomery,

810 S.W.2d at 388. If the answer is “NO” to either question, then the evidence is excluded. Id.

       Rule 401 defines “relevant evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or


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less probable than it would be without the evidence.” TEX .R.EVID . 401. 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.” TEX .R.EVID .

403. Only “unfair” prejudice provides the basis for exclusion of relevant evidence.

Montgomery, 810 S.W.2d at 378. Unfair prejudice arises from evidence that has an undue

tendency to suggest that a decision be made on an improper basis, commonly an emotional one.

Id.

       In the instant case, the court concluded that the evidence of Appellant’s shooting at Pork

Chop’s house was relevant to a fact of consequence in the trial, and was not conduct in

conformity therewith. The trial court conducted a balancing test and further concluded that the

evidence’s probative value outweighed any prejudicial effect under Rule 403, and charged the

jury with limiting instructions. See TEX .R.EVID . 403.

       Under step one, we must address whether the shooting by Appellant at Pork Chop’s home

was relevant to a fact of consequence in the case apart from its tendency to prove conduct in

conformity with character. Montgomery, 810 S.W.2d at 388. Appellant confessed that he knew

Mr. Schermer had another gun aside from the one Mr. Schermer allegedly fired in front of

Appellant’s face, so he took the second gun and shot Mr. Schermer again. Because Appellant

confessed that both guns belonged to Mr. Schermer when shell casings taken from

Mr. Schermer’s body matched shell casings taken from Pork Chop’s house, whether Appellant

owned any of the guns used to shoot Mr. Schermer was a material issue in the case. The fact that

such matches were confirmed, indicated that the same weapon could have been used in both


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instances. Secondly, because Appellant claimed self-defense, his intent and motive were also

material issues in the case. In order for a jury to realistically determine whether Appellant was

the aggressor and/or possessed a gun used to shoot Mr. Schermer, they had to evaluate that

evidence. Therefore, we conclude that the extraneous misconduct by Appellant was relevant to

the above material issues, apart from its tendency to prove conduct in conformity therewith.

Thus, the answer to question one is, yes.

       Moreover, extraneous offenses may be admissible whenever the defendant raises an

affirmative defense or raises a defensive issue that negates one of the elements of the offense.

Bradley, 960 S.W.2d at 803. Here, Appellant claimed he acted in self-defense, which negated

the elements of intent and motive needed to convict him for murder. Therefore, he “opened the

door” to allow the State to introduce extraneous evidence to rebut his defensive theory, if the

evidence’s probative value outweighed the danger of unfair prejudice. Id. at 803.

       Under step two, we must address whether the probative value of the extraneous evidence

was substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at

388. Only “unfair” prejudice provides the basis for exclusion of relevant evidence. Id. at 389.

The criteria for evaluating the danger of unfair prejudice includes: (1) whether the ultimate issue

to which the extraneous misconduct was relevant, was seriously contested by the defendant; (2)

whether the State had other convincing evidence to establish the ultimate issue; (3) whether the

probative value of the extraneous misconduct evidence was, particularly compelling; and (4)

whether the extraneous misconduct was of such a nature that a jury instruction to disregard it

except for its proffered purpose, would not likely have been effective. Montgomery 810 S.W.2d

at 393. We conclude that the probative value in this case was not substantially outweighed by


                                                -5-
unfair prejudice.

       Reviewing the record in light of these factors, we first conclude that the ultimate issue to

which the evidence related, Appellant’s claim of self-defense, was seriously contested. It was

reasonable for the trial court to find that the probative value of the evidence was compelling. By

linking the shell casings from the two scenes, the State refuted Appellant’s claim of self-defense.

The fact that the shell casings were linked together, was particularly compelling because it

indicated that Appellant could have been the aggressor and/or possessed a gun used to shoot

Mr. Schermer. In addition, the court’s limiting instruction was sufficient for a jury to disregard

the evidence for any but its proffered purpose. Under these facts, the trial court did not abuse its

discretion by admitting evidence of Appellant’s extraneous misconduct. Thus, the answer to

question two is, yes.

       Finally, Appellant contends that the admission of the extraneous evidence constituted

reversible error because Appellant was not convicted of a crime related to the first shooting.

Appellant’s argument is mistaken because that is no longer the law in Texas. In two 1994 cases,

the Texas Court of Criminal Appeals declared that the burden of proof for the admission of

extraneous offenses in Texas is proof beyond a reasonable doubt. George v. State, 890 S.W.2d

73, 76 (Tex.Crim.App. 1994)(holding that the standard of proof for admitting an extraneous

offense is beyond a reasonable doubt); Harrell v. State, 884 S.W.2d 154, 159-60 (Tex.Crim.App.

1994). The record reflects that the trial court’s limiting instructions to the jury were in

accordance with the law set out by the Texas Court of Criminal Appeals. Specifically, the court

instructed the jury that they could not consider the extraneous evidence for any purpose unless

they found and believed beyond a reasonable doubt that the defendant committed such other


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offenses, wrongs, or acts, if any were committed, and even then they may only consider the same

in determining the intent or knowledge of the defendant, if any, alleged against him in the

indictment in this case, and for no other purposes.

       Having reviewed the record, we hold that the trial court’s decision to admit the

extraneous evidence did not lie outside that zone within which reasonable persons might

disagree, and did not abuse its discretion. Therefore, Appellant’s issue is overruled.

       Having overruled all three parts of Appellant’s issue, we affirm the trial court’s judgment.



October 30, 2008
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)




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