Opinion filed August 22, 2019




                                     In The


        Eleventh Court of Appeals
                                ________________

       Nos. 11-17-00352-CR, 11-17-00353-CR, 11-17-00354-CR,
                 11-17-00355-CR, & 11-17-00356-CR
                         ________________

                    RAUL OJINAGA REYES, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 118th District Court
                           Howard County, Texas
          Trial Court Cause Nos. 14988, 14989, 14990, 14991, & 14992


                      MEMORANDUM OPINION
      Raul Ojinaga Reyes entered an open plea of guilty to five counts of aggravated
assault against a public servant. See TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West
2019). The jury assessed Appellant’s punishment at confinement for a term of
twenty years in the Institutional Division of the Texas Department of Criminal
Justice for each count, with each sentence to be served concurrently. In a single
issue, Appellant asserts that the trial court abused its discretion by admitting
photographs of weapons that were not used in the aggravated assaults. We affirm.
                                 Background Facts
        On December 27, 2016, Appellant entered an AT&T store in Big Spring. A
store employee testified that she called 9-1-1 because Appellant “had his pants kind
of undone” and had “a gun shoved in the back of his pants.” She also testified that
Appellant was incoherent. While the employee called 9-1-1, Appellant left the store
and drove away in a silver Ford pickup. Big Spring Police Officer Celeste Valle
testified that she received an alert from Howard County Dispatch regarding an armed
suspect in a silver Ford pickup. Officer Valle observed a vehicle matching the
description change lanes without using a turn signal. Officer Valle initiated a traffic
stop.    Officer Valle approached Appellant’s vehicle and made contact with
Appellant. Texas Department of Public Safety Corporal Hope Hohertz arrived at
the scene near the same time, and she approached the other side of Appellant’s
vehicle.
        After briefly speaking with Appellant, Officer Valle and Corporal Hohertz
instructed Appellant to get out of the vehicle, but Appellant refused. Officer Valle
testified that Appellant then pointed a pistol at the officers. Both officers fled to
defensive positions, and Corporal Hohertz fired at Appellant. Corporal Hohertz
believed that Appellant also fired at them before driving off. Officer Valle and
Corporal Hohertz pursued Appellant in their vehicles, along with numerous other
officers who responded to the dispatch alert. After several minutes, Appellant
stopped his vehicle.
        Sergeant Michael Moore, Officer Jordan Whetsel, and Detective Wesley
Davis, all from the Big Spring Police Department, stopped near Appellant’s vehicle.
Appellant fired shots at the officers as they arrived. A total of twenty-eight shell
casings fired from Appellant’s assault rifle were found at the scene. Multiple police
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vehicles were damaged, and Detective Davis was injured. When Appellant briefly
paused firing at the officers, Corporal Hohertz fired her shotgun at Appellant until
Appellant fell down. The officers arrested Appellant, who was taken to the hospital
and treated for his injuries.
       Teresa Dunnam Cox, a Big Spring Police Department identification
technician, testified during the punishment phase. During Cox’s testimony, the State
offered into evidence three photographs of items recovered during a search of
Appellant’s vehicle. Cox described these items as follows: “other firearms and
ammunition and other tactical items that were located in the suspect’s vehicle.”
Appellant objected to these photographs on the grounds that the photographs did not
depict any weapons used during the commission of the charged offenses and that
“the only purpose of [the exhibits] is to somehow paint [Appellant] as some kind of
villain.”   The trial court overruled Appellant’s objection and admitted the
photographs into evidence.
                                       Analysis
       In a single issue, Appellant asserts that the trial court abused its discretion
when it admitted the photographs of weapons that he did not use during the
commission of the charged offenses. Appellant asserts that any probative value was
substantially outweighed by the danger of unfair prejudice. Appellant asserts that
the admission of these exhibits was improper under Rule 403 of the Texas Rules of
Evidence because the State offered these exhibits to demonstrate Appellant’s future
danger to the public. Appellant contends that this is a subject that is speculative. He
asserts that the admission of these photographs resulted in unfair prejudice. See
TEX. R. EVID. 403.
       We review a trial court’s ruling under Rule 403 for an abuse of discretion.
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). This standard
requires an appellate court to uphold a trial court’s evidentiary ruling when it is
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within the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760
(Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.
2001). We will uphold the trial court’s ruling on the admission or exclusion of
evidence if the ruling was proper under any legal theory or basis applicable to the
case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
      Under Rule 403, 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; see Young v. State, 283 S.W.3d 854,
874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than
prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v.
State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is
unfairly prejudicial when it has the undue tendency to suggest an improper basis for
reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000);
Render, 347 S.W.3d at 921.
      In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991)). When
conducting a Rule 403 analysis, the trial court must balance:
      (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 [a] 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


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      consume an inordinate amount of time or merely repeat evidence
      already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403,
however, does not require that the balancing test be performed on the record.
Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref’d). In
overruling a Rule 403 objection, the trial court is assumed to have applied a Rule 403
balancing test and determined that the evidence was admissible. Id.
      With respect to the probative value of the photographs, we note that they were
offered during the punishment phase. At the punishment phase of trial, there are no
discrete factual issues; instead, the task of deciding what punishment to assess is a
normative process. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)
(citing Miller-El v. State, 782 S.W.2d 892, 895–96 (Tex. Crim. App. 1990)).
“[A]dmissibility of evidence at the punishment phase of a non-capital felony offense
is a function of policy rather than relevancy.” Miller-El, 782 S.W.2d at 895. The
jury is entitled to consider “any matter the court deems relevant to sentencing.” TEX.
CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018). These matters
include the defendant’s character, the circumstances of the offense for which he is
being tried, and evidence pertaining to the accused’s “personal responsibility” and
“moral culpability” for the crime charged. See id.; Stavinoha v. State, 808 S.W.2d
76, 79 (Tex. Crim. App. 1991) (per curiam).         “Nevertheless, admissibility of
punishment-phase evidence that the trial court deems relevant is still subject to a
Rule 403 analysis.” Rodriguez v. State, 163 S.W.3d 115, 119 (Tex. App.—San
Antonio 2005) (citing Rogers, 991 S.W.2d at 266–67), aff’d, 203 S.W.3d 837 (Tex.
Crim. App. 2006).
      After the trial court overruled Appellant’s objection to the three photographs,
the prosecutor questioned Cox about the three photographs. Cox testified that the
photographs depicted firearms, ammunition, and tactical items that were seized in

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the inventory of Appellant’s vehicle. Specifically, the items included fully loaded
magazines, an assault rifle, a pistol, a tactical hatchet, boxes of ammunition,
binoculars with night vision, and gloves.
      The three photographs were probative of Appellant’s readiness to exchange
gunfire with police for an extended amount of time because they depicted items
recovered from his vehicle. They were also relevant to his personal responsibility
and moral culpability. Although these weapons may not have been used in the five
aggravated assaults for which Appellant was convicted, the evidence did not take an
inordinate amount of time to present, and there is little danger that the evidence
confused the issues or misled the jury. Rather than confusing the issues, the evidence
served to further the jury’s understanding of the issues by explaining the
circumstances surrounding the aggravated assaults.
      Appellant contends that “these exhibits were offered for the stated purpose of
establishing ‘future dangerousness’” and “would have no bearing on [Appellant’s]
hypothetical conduct post-release or if given probation.” Therefore, Appellant
asserts that the exhibits “merely suggested to the jury that the jury should increase
the length of the sentence based on evidence that was more prejudicial than
probative.” Appellant contends that, because the Court of Criminal Appeals has
warned that evidence of future dangerousness is inherently imprecise and “often
mere speculation,” the photographs were more prejudicial than probative. See
Crawford v. State, 617 S.W.2d 925, 937 (Tex. Crim. App. 1980) (Phillips, J.,
dissenting). We disagree.
      In response to Appellant’s objection to the admission of the photographs, the
prosecutor argued:
             Your Honor, we intend to offer them to demonstrate the intent of
      [Appellant], that he had a tremendous potential of future danger; that
      he deliberately had weapons with him with additional ammunition; that
      he presents a future danger to the public; and that he utilized the
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        weapons in his possession; that there were additional weapons available
        to him immediately, and that his intent was to utilize those weapons or
        to utilize the weapons he had in hand.
Thus, the State did not seek to offer the photographs solely for the purpose of
showing post-release dangerousness. As noted by the prosecutor, the State also
sought to offer the photographs to show the danger posed by Appellant at the time
the assaults occurred. As we have noted, the photographs were probative of the
circumstances surrounding the assaults, Appellant’s willingness to endanger the
public and police, and Appellant’s moral culpability. Accordingly, the trial court
did not abuse its discretion when it admitted the photographs because their probative
value was not substantially outweighed by the danger of unfair prejudice. We
overrule Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


August 22, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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