                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00142-CR

JERMAINE LAMAR JONES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-522-C2


                          MEMORANDUM OPINION


      A jury found Appellant Jermaine Jones guilty of murder and assessed his

punishment at seventy-five years’ imprisonment as a habitual felon.        This appeal

ensued. In his sole issue, Jones contends that the “trial court abused its discretion in

admitting evidence of a prior violent act under Code of Criminal Procedure Article

38.36 and Texas Rules of Evidence 403 and 404(b).” We review a trial court’s decision to

admit or exclude evidence under an abuse-of-discretion standard. McDonald v. State,

179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
        Article 38.36(a) of the Code of Criminal Procedure provides:

        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.

TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West 2005). The court of criminal appeals has

stated that “[t]he nature of the relationship—such as whether the victim and the

accused were friends, were co-workers, were married, estranged, separated, or

divorcing—is clearly admissible under this Article.” Garcia v. State, 201 S.W.3d 695, 702

(Tex. Crim. App. 2006). Further, “in some situations, prior acts of violence between the

victim and the accused may be offered to illustrate the nature of the relationship.” Id.

        Evidence admitted under article 38.36 is still subject to rules 404(b) and 403 of the

Rules of Evidence. Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999). Under rule

404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” TEX. R. EVID.

404(b). Such evidence “may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Id. “[I]n cases in which the prior relationship between the victim

and the accused is a material issue, illustrating the nature of the relationship may be the

purpose for which evidence of prior bad acts will be admissible.” Garcia, 201 S.W.3d at

703. Under rule 403, “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the


Jones v. State                                                                         Page 2
issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” TEX. R. EVID. 403.

        “Consequently, if a defendant makes timely 404(b) or 403 objections, before a

trial court can properly admit the evidence under Article 38.36(a), it must first find the

non-character conformity purpose for which it is proffered is relevant to a material

issue.” Smith, 5 S.W.3d at 679. “If relevant to a material issue, the trial court must then

determine whether the evidence should nevertheless be excluded because its probative

value is substantially outweighed by the factors in [r]ule 403.” Id.

        Over Jones’s objection,1 victim Cedric “N-O” Robinson’s girlfriend Kiara Degrate

testified that Robinson and Jones had gotten into a dispute. On February 13, 2011,

approximately ten months before Robinson was murdered, she and Robinson had been

standing on the front porch of the apartment where they were staying when she noticed

a white car sitting at the corner of the street. She mentioned the car to Robinson and

told him that she thought they should go inside because she felt like something bad was

going to happen. But before they could get inside, the white car turned in front of their

apartment. Degrate stated that she saw Jones, who was in the front passenger seat, start

shooting out of the back passenger window. She could not see who was driving, nor

could she identify the person in the backseat. When she and Robinson finally got inside

the apartment, Robinson said that he had been “grazed a little bit.” She, however, had

been struck with fragments of bullets in her arm and her hands and had to go to the



1The State initially argues that Jones failed to preserve his complaint for review. We assume without
deciding that Jones’s sole issue is preserved for review.

Jones v. State                                                                                Page 3
hospital. Degrate explained that she initially told the police she did not know who had

shot at her because she was scared. Degrate said that she did not have any dispute with

Jones; therefore, she “guessed” he was trying to shoot Robinson.

        Jones first argues that Degrate’s testimony about the drive-by shooting “was not

relevant to the facts and circumstances surrounding the killing or the relationship

between the defendant and the victim such that it revealed the defendant’s state of

mind at the time of the killing” because of “the significant period of time between the

drive-by shooting and the killing.” We disagree. As pointed out in Reed v. State, 644

S.W.2d 494, 499 (Tex. App.—Corpus Christi 1982, pet. ref’d), the Court of Criminal

Appeals has approved the admission of evidence describing threats or assaults against

the deceased occurring years before the offense. See McClure v. State, 430 S.W.2d 813,

815 (Tex. Crim. App. 1968); Stephen v. State, 163 Tex. Crim. 505, 293 S.W.2d 789, 790

(1956). The drive-by shooting described by Degrate, occurring only ten months before

the murder, was therefore not too remote to be admissible.

        Jones next argues that Degrate’s testimony about the drive-by shooting was not

relevant to prove motive or identity; rather, it merely showed “conformity with Mr.

Jones’s character toward violence.” We again disagree. The Court of Criminal Appeals

has held that “evidence of prior extraneous offenses committed against the victim of the

offense charged, and indicating the existence of ill will or hostility toward the victim, is

admissible as part of the State’s case in chief as circumstantial evidence of the existence

of a motive for committing the offense charged.” Foy v. State, 593 S.W.2d 707, 709 (Tex.

Crim. App. [Panel Op.] 1980); see also Brandley v. State, 691 S.W.2d 699, 706 (Tex. Crim.

Jones v. State                                                                        Page 4
App. 1985) (“[E]xtraneous transactions directed specifically toward a certain individual

… can be relevant and admissible to show motive.”). The trial court therefore could

have reasonably concluded that the drive-by shooting described by Degrate indicated

the existence of Jones’s hostility or ill will toward Robinson and Jones’s motive to later

kill Robinson.

        Finally, Jones argues that the probative value of Degrate’s testimony about the

drive-by shooting is substantially outweighed by its prejudicial effect. When a trial

court balances the probative value of the evidence against its danger of unfair prejudice,

a presumption exists that the evidence will be more probative than prejudicial.

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).

        [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
        inherent probative force of the proffered 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 merely repeat evidence already admitted. Of course,
        these factors may well blend together in practice.

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted)).

        Probative force of the evidence: As stated above, Degrate’s testimony about the

drive-by shooting was an indication of the existence of Jones’s hostility or ill will

toward Robinson and circumstantial evidence of Jones’s motive to later kill Robinson.

This factor weighs in favor of admissibility.


Jones v. State                                                                        Page 5
        Proponent’s need for that evidence: Jones states that the prosecution had at least

some evidence toward the requisite elements of the offense of murder.                 Indeed,

witnesses identified Jones as the person who shot Robinson. And Jones’s ex-girlfriend

confirmed that Jones and Robinson had been in a dispute. But Jones challenged the

credibility of the witnesses who testified against him. In his closing argument, Jones’s

counsel stated: “And I think your job is basically this …. Your job is to decide who’s

telling you the truth, if you believe anybody’s telling you the truth.” The State thus

needed Degrate’s testimony about the drive-by shooting to show the relationship

between Jones and Robinson. The State needed Degrate’s testimony to show that Jones

had such hostility or ill will toward Robinson that he had previously attempted to shoot

him in a drive-by shooting. This factor thus weighs in favor of admissibility.

        Tendency of evidence to suggest a decision on an improper basis: The trial court gave a

limiting instruction for extraneous-offense evidence in the jury charge. We generally

presume the jury follows the trial court’s instructions in the manner presented. Colburn

v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Thus, the extraneous-offense

evidence had limited potential to impress the jury in an irrational way. This factor does

not weigh in favor of exclusion of the evidence.

        Jury confusion or distraction, undue weight, and amount of time or repetition: These

factors concern whether presentation of the evidence consumed an inordinate amount

of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or

to cause the jury to place undue weight on its probative value. See Gigliobianco, 210

S.W.3d at 641-42; Newton, 301 S.W.3d at 320. Degrate’s entire testimony consisted of

Jones v. State                                                                           Page 6
only thirteen pages of the reporter’s record. It was not repetitious, and we do not

believe that it could cause jury confusion or distraction or cause the jury to give it

undue weight, especially given the trial court’s limiting instruction. All of these factors

thus favor admission.

        Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the extraneous-offense

evidence and its probative value.

        For the foregoing reasons, we conclude that the trial court did not abuse its

discretion in admitting Degrate’s testimony under Code of Criminal Procedure article

38.36 and Rules of Evidence 403 and 404(b). We overrule Jones’s sole issue and affirm

the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 17, 2014
Do not publish
[CRPM]




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