                                  NO. 07-09-00238-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JULY 19, 2010


                         NITO JIM GUERRA JR., APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 264TH DISTRICT COURT OF BELL COUNTY;

                NO. 63206; HONORABLE MARTHA J. TRUDO, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      On our own motion, we withdraw our opinion and judgment of May 20, 2010, and

substitute the following. See TEX. R. APP. P. 50.


      A Bell County1 jury found appellant, Nito Jim Guerra, guilty of evading arrest or

detention using a motor vehicle and having been previously convicted of evading arrest




      1
        Pursuant to the Texas Supreme Court’s docket equalization efforts, this case
was transferred to this Court from the Austin Court of Appeals. See TEX. GOV’T CODE
ANN. § 73.001 (Vernon 2005).
or detention, a third-degree felony.2 The trial court assessed a sentence, enhanced by

prior felony convictions, of incarceration for a period of forty years.        On appeal,

appellant contends that the trial court abused its discretion by admitting (1) evidence of

extraneous offenses and (2) victim impact testimony relating to an extraneous offense.

We affirm.


                              Factual and Procedural History


       In October 2007, Office Jeffrey Fudge of the Temple Police Department

observed a vehicle without a front license plate.       Fudge turned his car around to

investigate, and the suspect vehicle drove off at a high rate of speed. Fudge activated

his emergency lights and sirens and pursued the vehicle. He testified that there was

only one occupant in the vehicle as he pursued it.          The driver proceeded into a

neighborhood, traveling at approximately sixty miles per hour, ran a stoplight, nearly

collided head-on with another vehicle, drove between two houses, struck a telephone

pole, and crashed into a concrete drainage ditch.


       Fudge got out of his car and ran toward the crash. When he was within twenty-

five to fifty feet of the crash, Fudge clearly saw the driver leap from the disabled vehicle

and flee on foot. Fudge never lost sight of the driver as he pursued him on foot for

about 100 yards. Following this brief chase, the driver, appellant, surrendered and was

arrested by Fudge and, subsequently, was charged with evading arrest or detention.




       2
           See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (Vernon Supp. 2009).

                                             2
      At trial, appellant called his cellmate, Billy Watkins, who was incarcerated on an

unrelated offense and testified that it was he, not appellant, who had been driving the

vehicle. Watkins testified that appellant had asked to be let out of the vehicle but

Watkins kept driving. Watkins explained that he jumped out of the wrecked car at the

same time appellant did but that he was able to escape whereas appellant was

apprehended. Fudge testified that he never saw a second occupant in the vehicle he

was pursuing and that a second person did not get out of the vehicle following the

crash. He also testified that appellant never claimed, prior to trial, that there was a

second person in the vehicle with him or that he was not the driver.


                           Evidence of Extraneous Offenses


      Appellant’s first issue stems from Watkins’s testimony that it was he, rather than

appellant, who was driving the vehicle and that appellant had asked to be let out of the

vehicle. Following and in response to Watkins’s testimony, the State offered evidence

of three prior convictions of appellant: a 2006 conviction for burglary, a 2005 conviction

for possession of a controlled substance, and a 1999 conviction for aggravated assault.


      Appellant objected, arguing that Watkins’s testimony that appellant asked to be

let out of the vehicle was nonresponsive and did not open the door to evidence of

extraneous offenses. The State argued that the evidence of extraneous offenses was

proper impeachment evidence of appellant’s out-of-court statement and was relevant to

rebut appellant’s defensive theory that Watkins, rather than appellant, was driving the

truck when police were pursuing it.      The extraneous offense evidence, the State

claimed, illustrated appellant’s motive to advance this theory: to avoid an enhanced

                                            3
sentence of twenty-five years to life imprisonment. So, the evidence was relevant,

according to the State, to illustrate motive for appellant to fabricate this defensive theory

challenging the element of identity. The trial court agreed and admitted the evidence

with a limiting instruction that the jury was to consider the evidence only for the

purposes of showing motive to fabricate the version of events that included Watkins as

the driver and impeaching appellant’s statement to Watkins that he wanted out of the

vehicle.


Standard of Review


       Whether objected-to evidence of “other crimes, wrongs, or acts” has relevance

apart from character conformity is a question for the trial court. TEX. R. EVID. 404(b),

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g). The

trial court must conclude that the evidence tends, in logic and common experience, to

serve some purpose other than character conformity to make the existence of a fact of

consequence more or less probable than it would be without the evidence. Id. Because

the trial court is in the best position to make the call on such substantive admissibility

issues, we review its admissibility decision under an abuse of discretion standard.

Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); Montgomery, 810 S.W.2d at

391. This standard requires us to uphold the trial court’s admissibility decision when

that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438.

Moreover, we will sustain a trial court’s decision regarding admissibility of evidence if it

is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d

539, 543–44 (Tex.Crim.App. 1990).

                                             4
Exclusion of Evidence under Rule 404(b), Exceptions


       Evidence of other crimes, wrongs, or acts is not admissible “to prove the

character of a person in order to show action in conformity therewith”; however, it may

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, or identity. TEX. R. EVID. 404(b); Williams v. State, 301

S.W.3d 675, 687 (Tex.Crim.App. 2009). The State maintains that Rule 404(b) permits

this evidence for the purposes of showing the identity of the driver and rebutting

appellant’s defensive theory that Watkins was driving and refused to let appellant out of

the vehicle.


       Relevant evidence of a person’s bad character may be admissible when it is

relevant to a non-character fact of consequence in the case, such as rebutting a

defensive theory.    Powell, 63 S.W.3d at 438; Montgomery, 810 S.W.2d at 387–88.

Additionally, evidence of motive is always relevant and admissible to prove that a

defendant committed the offense alleged. Crane v. State, 786 S.W.2d 338, 349–50

(Tex.Crim.App. 1990); Keen v. State, 85 S.W.3d 405, 413–14 (Tex.App.—Tyler 2002,

pet. ref'd). Evidence of extraneous conduct may be offered to prove motive under Rule

404(b) if the evidence tends to raise an inference that the defendant had a motive to

commit the offense. Crane, 786 S.W.2d at 350. Put another way, such evidence is

admissible under Rule 404(b) if “it tends to establish some evidentiary fact, such as

motive . . ., leading inferentially to an elemental fact [such as identity or intent].” Powell,

63 S.W.3d at 438 (quoting Montgomery, 810 S.W.2d at 387–88).




                                              5
Applicable Law


       As noted, the Texas Supreme Court transferred this case to this Court from the

Austin Court of Appeals. That being so, we must decide this case “in accordance with

the precedent of the transferor court under the principles of stare decisis” if our decision

otherwise would have been inconsistent with the precedent of the transferor court. TEX.

R. APP. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex.App.—El Paso 2009, pet.

denied). This Court has addressed Rule 404(b) admissibility issues generally. See

Williams v. State, 290 S.W.3d 407, 410–11 (Tex.App.—Amarillo 2009, no pet.).

However, we have not faced this precise issue.3 The Austin Court has not directly

addressed this issue either. We will, therefore, examine the Austin Court’s general

approach in analyzing Rule 404(b) issues, some language from a related issue that

would suggest the Austin Court’s approach in this specific context, and look to decisions

of sister courts to best discern the intermediate courts’ treatment of this issue.


       Generally, it appears the Austin Court adheres to the widely-accepted standard

of review of the trial court’s Rule 404(b) admissibility determinations and has applied

that standard in a variety of contexts. See Maher v. State, No. 03-07-00179-CR, 2008

Tex. App. LEXIS 5213, *10–*11 (Tex.App.—Austin July 10, 2008, pet. ref’d) (mem. op.,

not designated for publication) (evidence of drugs found in appellant’s backpack three

weeks after alleged assault was inadmissible because it had no relevance to the

       3
         We, therefore, cannot say that the decision in this case would have otherwise
been inconsistent with that of our sister court. Nor do we read Rule 41.3 as permitting
our independent analysis of the issue in the absence of inconsistent precedent from the
transferee court. Rule 41.3 requires us to apply the law of the transferor court in this
situation, and we do so. We note only that this Court has not directly addressed this
issue in a non-transfer case.
                                              6
offenses for which appellant was on trial and served only to prove appellant's bad

character); Tapps v. State, 257 S.W.3d 438, 447 (Tex. App.—Austin 2008), aff'd on

other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009) (testimony concerning whether

witness knew appellant was registered sex offender may be relevant to show potential

bias by the witness or challenge the witness's credibility, purposes other than showing

conduct in conformity with character); Pierce v. State, No. 03-03-00536-CR, 2005

Tex.App. LEXIS 6229, at *25 (Tex.App.—Austin Aug. 3 2005, no pet.) (mem. op., not

designated for publication) (evidence of prior financial improprieties and deceit

admissible in murder trial to show motive).4 The Austin Court has also recognized that,

when an accused challenges an element of the offense requiring proof of intent,

admission of extraneous offense evidence can aid in proving intent if the required intent

cannot be inferred from the act itself or if the accused presents evidence to rebut the

inference that the required intent existed.       Johnson v. State, 932 S.W.2d 296, 302

(Tex.App.—Austin 1996, pet. ref'd). We see nothing from our survey of the Austin




      4
        See also Hernandez v. State, No. 03-07-00040-CR, 2010 Tex. App. LEXIS 851,
*21–*22 (Tex.App.—Austin Feb. 5, 2010, no pet.) (mem. op., not designated for
publication) (quoting Montgomery in recognition that the standard of review means that
an appellate court should reverse the admissibility decision only if it concludes that “by
no reasonable perception of common experience can it be concluded that proffered
evidence has a tendency to make the existence of a fact of consequence” other than
character conformity “more or less probable than it would otherwise be”) Ramirez v.
State, No. 03-05-00219-CR, 2006 Tex.App. LEXIS 7557, at *20–*21 (Tex.App.—Austin
Aug. 25 2006, pet. ref’d) (mem. op., not designated for publication) (extraneous offense
admissible in trial for aggravated robbery to rebut defensive theory challenging identity);
Brown v. State, No. 03-04-00639-CR, 2006 Tex.App. LEXIS 5163, *9–*10 (Tex.App.—
Austin June 16 2006, no pet.) (mem. op., not designated for publication) (even if error
had been preserved, evidence of appellant’s physical abuse of murder victim admissible
to rebut defendant's claim of accident and show element of intent to cause death,
serious bodily injury, or bodily injury).
                                              7
Court’s cases dealing with Rule 404(b) that would suggest any significant departure

from the widely-applied analysis of general Rule 404(b) issues.


       The Austin Court comes near the precise issue at hand in Speaks v. State, No.

03-08-00420-CR, 2009 Tex.App. LEXIS 5695 (Tex.App.—Austin July 23, 2009, no pet.)

(mem. op., not designated for publication).       In Speaks, appellant, appealing his

conviction for evading arrest or detention, conceded that testimony that he had two

outstanding warrants for his arrest was admissible to show motive for flight; he argued

that testimony regarding the specific nature of offenses for which the warrants were

issued was not admissible. Id. at *3. It was his contention that the trial court should

have granted his motion for mistrial based on the evidence concerning the specific

nature of the warrants, a contention the Austin Court rejected. Id. at *2–*4. Though

Speaks could be read as implied acceptance of the appellant’s concession that general

evidence concerning an extraneous offense is admissible to show motive for flight, the

Austin Court has not been called on to decide the issue squarely. See id. at *3. Other

sister courts have.


       Most notably, we look at Powell v. State, 151 S.W.3d 646, 650–51 (Tex.App.—

Waco 2004), rev’d, 189 S.W.3d 285 (Tex. Crim. App. 2006). Powell, like appellant, was

convicted of evading arrest using a motor vehicle.        Id.   When Powell presented

evidence that it was another man who was driving the vehicle, the State sought to

introduce evidence of Powell’s motive to evade arrest, specifically that a firearm was

found in the vehicle and that Powell was on parole at the time of the offense, and, thus,

subject to revocation of parole for carrying a firearm or associating with people carrying

                                            8
firearms.   Id. at 650–51.      On appeal to the Waco Court, Powell complained that

evidence of the firearm and his parole status violated Rule 404(b) and was inadmissible

under the balancing test of Rule 403. Id. at 650.


       As to the Rule 404(b) issue, the State argued that Powell's parole status tended

to raise an inference that he had a motive to flee because, as a parolee, he was

prohibited from possessing a firearm or associating with someone in possession of a

firearm. Id. The Waco Court agreed:


       [T]he evidence surrounding the handgun does at a minimum tend to
       raise an inference that one of the occupants of the car was in possession
       of a handgun before they fled on foot from the officer. Thus, this
       evidence, when considered with Powell's parole status, is relevant to
       motive.

Id. at 651.     The Waco Court identified the underlying "fact of consequence" or

"elemental fact" to which the evidence was relevant as identity: “[T]he State offered the

evidence in question to prove Powell's motive, which is probative of the disputed

‘elemental fact’ of identity.” Id.


       Though it found the evidence of the firearm and Powell’s parole status admissible

as relevant to motive to evade, the Waco Court ultimately found that the admission ran

afoul of Rule 403’s balancing test. Id. at 653; see TEX. R. EVID. 403. That is, in light of

the relevant considerations, that case was one of the “rare” cases in which the record

demonstrated an abuse of discretion. Id. at 652. It further found that admission of the

evidence was not harmless. Id. at 652–53.


       The Texas Court of Criminal Appeals acknowledged, if not impliedly approved,

the Waco Court’s application of Rule 404(b): “The Court of Appeals found the evidence
                                            9
was relevant to a noncharacter purpose under Rule 404(b) because it tended to show

motive, which in turn tended to show the elemental fact of identity.” Powell v. State, 189

S.W.3d 285, 287 (Tex.Crim.App. 2006). It went on, however, to reverse the Waco

Court’s decision as to the Rule 403 balancing test5 and remanded the case to the Waco

Court for consideration of the “remaining point of error” concerning a lesser-included

offense. See id. at 287–90; Powell v. State, 206 S.W.3d 142–43 (Tex. App.—Waco

2006, pet. ref’d).


       Other sister courts have followed the same general approach when dealing with

evidence of an extraneous offense in a trial on charges of evading arrest or detention.

The Fourteenth Court addressed the issue of admissibility of evidence concerning an

extraneous offense in Britt v. State, No. 14-06-00131-CR, 2007 Tex. App. LEXIS 3148,

at *17–*18 (Tex.App.—Houston [14th Dist.] Apr. 26, 2007, pet. ref’d) (mem. op., not

designated for publication). The question came before the court in a point of error

alleging ineffective assistance of counsel when appellant argued that trial counsel

opened the door to evidence that he was on deferred adjudication community

supervision at the time of the offense and opening the door to such evidence fell below

the standard of prevailing professional norms. Id. The Britt court disagreed, noting that

trial counsel could have believed that evidence of appellant's deferred adjudication

       5
         Though the Texas Court of Criminal Appeals discussion in Powell centered on
Rule 403 primarily, its discussion of the probative value of the evidence as it relates to
the Rule 403’s balancing test is instructive in that it also served to illuminate how and
why the evidence was probative of motive and, ultimately, identity. It disapproved of the
Waco Court’s conclusion that the evidence of the firearm was only weakly probative of
Powell’s motive, emphasizing the facts that the only issue at trial was the issue of
identity and that Powell had introduced positive testimony controverting the issue of
identity. Id. at 288–89.

                                           10
would be admitted, regardless of his question, for the purpose of establishing

appellant's motive and intent to evade arrest. Id. at 18. Importantly, the Britt court read

the Texas Court of Criminal Appeals’ opinion in Powell, 189 S.W.3d at 286-87, 289, as

holding that evidence defendant was on parole was admissible under Rule 404(b) for

purposes of establishing defendant's motive for evading arrest. Id. Similarly, the Dallas

Court concluded that the trial court did not abuse its discretion by admitting evidence of

appellant’s fraudulent possession of identifying information because such evidence was

relevant under Rule 404(b) to show appellant’s “motive to evade detention.” West v.

State, Nos. 05-04-01218-CR, 05-04-01219-CR, 2005 Tex.App. LEXIS 6495, at *5

(Tex.App.—Dallas August 16, 2005, no pet.) (mem. op., not designated for publication).

Likewise, the Fort Worth Court concluded that the trial court did not abuse its discretion

when it admitted a portion of appellant's statement admitting a prior offense of

unauthorized use of a motor vehicle.      Vital v. State, Nos. 02-02-00421-CR, 02-02-

00422-CR, 2003 Tex.App. LEXIS 10628, at *4 (Tex.App.—Fort Worth Dec. 18, 2003, no

pet.) (mem. op., not designated for publication).       The court concluded that such

evidence was relevant under Rule 404(b) to show that appellant had a motive for

evading arrest and that such relevance was “a legitimate basis for the trial court's

ruling.” Id.


Analysis


       From our survey of the Austin Court’s cases addressing Rule 404(b) admissibility

in other contexts and from the implication in Speaks, it would appear that it would

decide the issue in a manner consistent with other sister courts.        That is, it would

                                            11
appear from the Austin Court’s previous cases that, if called on to answer this precise

issue, it, like our sister courts, would conclude that Rule 404(b) permits admission of the

evidence of an extraneous offense to show motive to evade arrest or detention.


       As did the evidence suggesting a driver other than the defendant in Powell,

Watkins’s testimony went directly to the elemental fact of identity. The State’s evidence

suggested that appellant was motivated to evade arrest or detention because he would

be subject to a lengthy prison sentence.6 We would add that such evidence becomes,

perhaps, more relevant in light of the evidence that appellant’s license had been

suspended and that drug paraphernalia was found in the vehicle after the pursuit.

Showing that appellant had prior felony convictions would tend to make it more probable

that he, knowing he had prior felony convictions, a suspended license, and drug

paraphernalia in his vehicle, would attempt to evade arrest or detention because the

likely consequences of being arrested included a lengthy term of imprisonment. So,

showing that appellant, if arrested, was subject to an enhanced punishment would go to

his motive to evade arrest and, therefore, the elemental fact of identity.


       Appellant, in furtherance of his defensive theory, introduced evidence challenging

the identity element and, in doing so, put the element of identity squarely at issue by

urging the defensive theory that Watkins, not appellant, was driving the car during the

pursuit. The admission, for limited purpose, of evidence that suggests that appellant

       6
       The offense with which appellant was charged is a third-degree felony. See
TEX. PENAL CODE ANN. § 38.04(b)(2)(A). Ordinarily, a third-degree felony is punishable
by two to ten years in prison. See id. at § 12.34(a) (Vernon Supp. 2009). Here,
however, having been convicted of, at least, two prior felonies, Guerra was subject to a
punishment of twenty-five to ninety-nine years or life. See id. at § 12.42(d) (Vernon
Supp. 2009).
                                            12
would have motive to evade arrest or detention logically serves to make less probable

appellant’s defensive evidence that Watkins was the driver.


       Therefore, we cannot say that it was outside the zone of reasonable

disagreement for the trial court to conclude that the extraneous offense evidence was

admissible for a non-character purpose under Rule 404(b). The trial court did not abuse

its discretion when it admitted the evidence of extraneous offenses, and we overrule

appellant’s first issue.


                           Testimony of Victim of Extraneous Offense


       Fallon Garcia is appellant’s former girlfriend and testified during the punishment

phase of trial. Garcia testified to previous physical and verbal abuse she suffered at the

hands of appellant. Appellant did not object to this testimony. Likewise, he did not

object to Garcia’s testimony concerning the armed confrontation between appellant and

another man at Garcia’s mother’s house. During the confrontation, appellant pointed a

gun at Garcia and then fired a shot into the air.     When the State asked Garcia if she

feared appellant, appellant objected that such testimony would be “effectively victim

impact evidence on extraneous [offenses].” The trial court overruled the objection, and

Garcia testified that she did fear him.


Standard of Review


       Again, we review a trial court’s admission or exclusion of evidence for an abuse

of discretion. See Powell, 63 S.W.3d at 438.



                                              13
Testimony of Victim of Extraneous Offense, Victim Impact Testimony


       Garcia’s testimony regarding unadjudicated extraneous offenses was admitted

without objection.   On appeal, appellant limits his issue to a complaint regarding

Garcia’s testimony that she feared appellant.


       Appellant relies on Cantu v. State, 939 S.W.2d 627, 637 (Tex.Crim.App. 1996),

for the proposition that it is error to admit victim impact testimony by witnesses not

named in the indictment for the offense for which an appellant is being tried. In Cantu,

the evidence showed that Cantu was involved in the murder of two teen-aged girls. Id.

at 631. During the punishment phase of the capital murder trial relating to the murder of

one of the victims, the mother of the other victim testified as to the impact the murder of

her daughter had on her family. Id. at 637. The Texas Court of Criminal Appeals noted

that this other victim was not the victim named in the indictment and, though evidence of

the details surrounding the other victim’s murder was admissible contextual evidence,

concluded that her mother’s testimony concerning her life and the impact her death had

on the family “serve[d] no other purpose than to inflame the jury.” Id. It, nonetheless,

found the error in admitting the evidence harmless.


       The State responds by pointing to the distinction the Texas Court of Criminal

Appeals drew between Cantu and Roberts v. State, 220 S.W.3d 521, 531

(Tex.Crim.App. 2007). At issue in Roberts was the admissibility of testimony, during the

punishment phase of Roberts’s capital murder trial, of the victim of a robbery committed

by Roberts a few years earlier. Id. The court described “victim impact” evidence as

“evidence of the effect of an offense on people other than the victim.” Id. (emphasis in

                                            14
original). It concluded that the complained-of evidence in Roberts was testimony from

the victim of the extraneous offense, not the offense for which he was being tried, and

specifically distinguished Cantu on this basis.      Id.   The Roberts court ultimately

concluded that the testimony was admissible. Id.


Analysis


      Here, the challenged testimony is in the nature of the evidence examined in

Roberts. That is, the offense to which Garcia testified was an extraneous offense; she

was a victim of that offense, and appellant was not being tried for that offense. Garcia’s

testimony that she feared appellant, then, related solely to the impact the extraneous

offense had on her and was not, therefore, within the definition of “victim impact”

evidence as defined by Roberts. See id. Under Roberts, such testimony is admissible

and distinguishable from the testimony in Cantu; the trial court did not abuse its

discretion by admitting it. We overrule appellant’s second issue.


                                       Conclusion


      Having overruled appellant’s two issues, we affirm the trial court’s judgment of

conviction and sentence.




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.

                                           15
