AFFIRM; and Opinion Filed June 25, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00705-CR

                           BRENDA ISELA MONTOYA, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1122656-W

                             MEMORANDUM OPINION
                          Before Justices Brown, Stoddart, and Schenck
                                   Opinion by Justice Schenck
       A jury found appellant Brenda Isela Montoya guilty of delivery of a controlled substance,

heroin, in the amount of one gram or more, but less than four grams. The trial court assessed her

punishment at eight years’ imprisonment. In a single issue, appellant argues the trial court

abused its discretion by admitting evidence of an alleged extraneous offense at the

guilt/innocence phase of her trial. We affirm the trial court’s judgment.

       Police surveilled appellant and her brother, Paul Montoya, for some time as a result of a

tip from a confidential informant who suggested that they were selling heroin. Two narcotics

investigators from the Farmers Branch Police Department—Matthew McCain and Phillip

Wardlaw—were in charge of the investigation. Both men testified at trial. They learned that

appellant drove a black Nissan Versa and that whenever appellant and Paul went somewhere

together, appellant always drove. Wardlaw arranged by text to buy heroin from Paul. The
transaction was to take place on September 7, 2011, in a convenience store parking lot. On the

appointed day, appellant drove into the parking lot; Paul was in the front passenger seat.

Wardlaw had arrived earlier, and appellant parked her car immediately next to his undercover

vehicle. Wardlaw and appellant said “hi” to each other through open windows. Paul then

stepped out of the Versa and gave Wardlaw the heroin in return for cash. This is the offense for

which appellant was charged as a party.

          The extraneous offense at issue in this appeal was another undercover buy of heroin that

took place on August 26, approximately a week before the September 7 transaction described

above. Like the September buy, this one was arranged by McCain and Wardlaw through texts to

Paul. 1 Appellant drove her black Nissan Versa to the arranged location; Paul rode in the

passenger seat. When they arrived, Paul exchanged heroin for cash. In this transaction, Paul did

not leave the vehicle: McCain leaned into the passenger side of the Versa to see both occupants

and to make the exchange.

          The record establishes that the State sought to offer evidence of the August transaction to

prove appellant’s knowledge or her lack of mistake concerning why she was driving her brother

to the arranged meeting in September. The State acknowledged that evidence of another crime is

not admissible to prove people acted in accordance with their character of lawlessness on a

particular occasion. See TEX. R. EVID. 404(b)(1). However, it relied on a well recognized

exception provided by that same rule: that evidence of another crime may be admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” See TEX. R. EVID. 404(b)(1). The State argued that after the August transaction

appellant must have been aware of her brother’s heroin dealing. Thus, when she drove him to a


     1
       The August buy was arranged by McCain, who had developed the connection with Paul through his confidential informant. After the
August buy, McCain introduced Paul to Wardlaw, who arranged the September buy.



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meeting place again in September, it was likely that appellant knew she was driving her brother

to a meeting arranged for the sale of heroin. Appellant objected to testimony of the August buy,

contending (1) the evidence would effectively subject her to two trials and (2) the evidence’s

probative value was substantially outweighed by its unfair prejudice. Following an evidentiary

hearing, the trial court admitted the evidence for rule 404(b) purposes. On appeal, appellant

argues only the second objection. See TEX. R. EVID. 403 (court may exclude relevant evidence if

its probative value is substantially outweighed by unfair prejudice).

       We review a trial court’s decision to admit evidence at trial for abuse of discretion.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). And we review rulings based

on rule 403 by balancing the following factors:

       (1) how compellingly the extraneous offense evidence serves to make a fact of
       consequence more or less probable—a factor which is related to the strength of
       the evidence presented by the proponent to show the defendant in fact committed
       the extraneous offense;

       (2) the potential the other offense evidence has to impress the jury “in some
       irrational but nevertheless indelible way”;

       (3) the time the proponent will need to develop the evidence, during which the
       jury will be distracted from consideration of the indicted offense; and

       (4) the force of the proponent’s need for this evidence to prove a fact of
       consequence, i.e., does the proponent have other probative evidence available to
       him to help establish this fact, and is this fact related to an issue in dispute.

De La Paz v. State, 279 S.W.3d 336, 348–49 (Tex. Crim. App. 2009). The first and fourth

factors speak primarily to the probative force of the evidence at issue; the second and third

factors speak to the risk of unfair prejudice.

       Our review of the record persuades us that the evidence of the August heroin transaction

is compelling proof of appellant’s knowledge of the nature of the September transaction.

Appellant’s defense at trial was that she did not know what her brother was doing and did not

knowingly and intentionally deliver a controlled substance on September 7. Her counsel argued,

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“Unbeknownst to Ms. Montoya, her brother was making deals with the police on drug deals that

she had no knowledge of,” and “Folks, it’s clear that Ms. Montoya did not know what her

brother was doing.” But after driving Paul to the August meeting and having the heroin-for-cash

exchange take place in the car right next to her, jurors could reasonably believe she did know.

Neither was there another better way to prove appellant’s knowledge. Appellant points to her

video interview with police, in which she admitted driving Paul to make drug deals. But

appellant’s answers in that interview are sometimes ambivalent and sometimes ambiguous.

Police testimony that officers witnessed appellant driving her brother to a drug buy in precisely

the same way she did one week later was much stronger evidence of her knowledge of the nature

of her conduct and her brother’s conduct.

       We conclude further that any risk of unfair prejudice was not significant in this case. The

extraneous offense was not likely to inflame jurors or to encourage them to decide the case on an

irrational basis. The August buy was not a violent offense or an offense categorically different

or more heinous than the September offense with which appellant was charged. On the contrary,

the August transaction was valuable to the jury because it so clearly showed the defendant and

her brother carried out their transactions following the same pattern—reflecting precisely the

rationale underlying the exception framed into rule 404. When appellant got into the car to take

her brother to a store parking lot in September, reasonable jurors could infer that she knew

precisely what he was going to do. And evidence of that knowledge was highly probative in a

case in which the thrust of the defense was that she did not know what he was going to do.

Moreover, the same investigators participated in and testified to the two drug buys. Therefore,

developing the evidence did not require additional witnesses or significant amounts of time that

would distract the jury from evidence of the September transaction.




                                              –4–
         Weighing these factors, we cannot conclude the evidence of the August transaction was

substantially more unfairly prejudicial to appellant than it was probative. See De La Paz. 279

S.W.3d at 348–49. We discern no abuse of discretion in the trial court’s decision to admit the

evidence. We decide appellant’s single issue against her, and we affirm the judgment of the trial

court.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47

140705F.U05




                                              –5–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

BRENDA ISELA MONTOYA, Appellant                       On Appeal from the 363rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-14-00705-CR         V.                         Trial Court Cause No. F-1122656-W.
                                                      Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee                          Justices Brown and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 25th day of June, 2015.




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