                                   NO. 07-03-0522-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                     JUNE 14, 2005

                          ______________________________


                             JOE GONZALES, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2002-400,969; HON. CECIL G. PURYEAR, PRESIDING

                         _______________________________

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1


       In this appeal, appellant Joe Gonzales challenges his conviction of capital murder

and the ensuing court-assessed punishment of life imprisonment in the Institutional Division

of the Department of Criminal Justice. In doing so, he presents five points for our

determination. In those points, he contends: 1) during the State’s case-in-chief, the trial

court erred in permitting the State to offer evidence of an extraneous offense occurring



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
eight days after the charged capital murder offense; 2) & 3) the evidence was legally and

factually insufficient to sustain the conviction of capital murder; 4) the trial court erred when

it sustained the State’s objection to the admission of Gabriel Gonzales’ confession; and 5)

the trial court erred when it refused to give appellant a continuance because it deprived him

of the right to present a witness in his favor. Disagreeing that reversal is required, we

affirm the judgment of the trial court.


      The State’s evidence showed that on August 14, 2002, appellant and his cousin

Gabriel Gonzales decided to commit a robbery. In the course of implementing that

decision, appellant drove his vehicle while Gabriel looked for potential victims. After

Gabriel pointed out several potential victims that appellant rejected, Gabriel selected Colin

Schafer as the intended target of the robbery. Carrying a 9 mm semiautomatic rifle, Gabriel

stepped out of the vehicle, confronted Schafer, and demanded money. When Schafer

could not produce any, Gabriel entered Schafer’s car and ordered him to proceed to an

ATM machine to withdraw money. Appellant followed in his car. After Schafer delivered

$300 to Gabriel, Gabriel shot Schafer twice, returned to appellant’s car, and left Schafer

to die.


          Eight days after the robbery, appellant and Gabriel were at a residence where

appellant became involved in a fight. After the fight, the pair waited outside the residence.

Gabriel took the 9 mm rifle from appellant’s car, handed it to appellant, and encouraged

him to fire into the residence. Before leaving the area, appellant fired four rounds into the

residence. During the course of investigating the second shooting, a police officer, noting



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the similarities between the Schafer murder and the shooting, informed the officer

investigating the Schafer murder of a possible connection between the two.


          The police compared the shell casings from both incidents and concluded that the

same gun was involved in both of them. By identifying the suspects in the second shooting,

the police obtained a search warrant and conducted a search of appellant’s home. In

conducting the search, the police discovered a 9 mm rifle, as well as the remnants of a

partially burned wallet in the fireplace of appellant’s residence. Among the ashes in the

fireplace was a partially burned insurance card for Susan Schafer, Colin’s mother.

Appellant and Gabriel were arrested and both of them gave statements incriminating

themselves in the robbery-murder of Colin Schafer.


          Reiterated, in his first point, appellant contends the trial court reversibly erred in

admitting evidence concerning the shooting incident that occurred eight days after the

murder in question here. He argues that the State improperly offered the evidence to

demonstrate appellant’s general bad character in violation of the Texas Rules of Evidence.


          Parenthetically, the State contends appellant did not properly preserve this question

for appellate review. The gist of that contention arises out of a preliminary hearing, the

subject of which, the trial court announced, was “evidentiary matters.” Defense counsel

objected to the consideration of the balancing test necessary for the trial court to perform

in determining the admissibility of the extraneous offense because the question was not

“ripe.”




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        However, the trial court stated that its purpose in calling the hearing was to consider

“the question of whether or not [the extraneous offense is] probative or not and whether or

not the extraneous offense carries more prejudice than probative value. . . .” At the

conclusion of the hearing, and after hearing testimony, the court announced, “[M]y

preliminary ruling is that this matter is not overly prejudicial, it is probative of the facts of the

capital murder in this case, and that as such, the Court is going to allow the matter to be

proffered before the jury.” When the State tendered the testimony at trial, defense counsel

told the court that he was rearguing the objection that was raised at the preliminary hearing.

That objection was overruled, and appellant was given a running objection to the testimony.




       The State argues that the only objection made by defense counsel at the hearing

was that the hearing was premature and counsel’s reference to his objection at the

preliminary hearing “was insufficiently specific to preserve error concerning Appellant’s

complaints on appeal.” We disagree. The record is sufficient to show the trial court was

well aware of the basis of appellant’s objection and continued to believe the evidence was

admissible. Thus, the question has been preserved for our appellate review.


        The nature of appellant’s first point requires us to review the pertinent portions of

the applicable Rules of Evidence. 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 less probable than it would be without the evidence.” Tex.

R. Evid. 401. Rule 402 provides: “All relevant evidence is admissible, except as otherwise

provided by . . . these rules, . . . .” Tex. R. Evid. 402. Rule 403 provides that although

                                                 4
relevant, “evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice . . . .” Tex. R. Evid. 403. Rule 404(b) provides that

“[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).           It may,

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

preparation, plan, knowledge, and identity. Id.


       We review a trial court’s decision on the admission or exclusion of evidence by an

abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim.

App. 1990). The determination of the admissibility of evidence is a multi-step process.

First, the trial court is required to decide whether the evidence to be introduced is relevant

to the proceedings. Id. at 375. If the evidence is deemed relevant, it is admissible unless

it is excluded by a constitutional, statutory, or evidentiary provision. Id. at 376. Even if the

evidence is relevant and otherwise admissible, it may still be excluded if its prejudicial effect

substantially outweighs its probative value. Id. at 377.


       In this case, the police had no leads or suspects in Schafer’s murder. It was not until

after the second shooting that the police were able to identify potential suspects. That

being so, the extraneous offense was relevant to the development of the case. However,

although it may be relevant, the extraneous offense would not have been admissible as

character evidence to show appellant’s character traits such as violent behavior or

tendency to use deadly weapons, Tex. R. Evid. 404(b), and the burden was on the State

to establish another legitimate reason for admission of the second shooting evidence. See

Russell v. State, 113 S.W.3d 530, 535 (Tex. App.–Fort Worth 2003, pet. ref’d).

                                               5
       In this case, the State was required to prove that appellant had intent and acted to

promote, encourage, solicit, direct, aid, or attempt to aid in Schafer’s murder. Id. at 536.

Here, the State needed the evidence to show the development of the police investigation

leading to the suspects, as well as to show that appellant intended to use or had knowledge

that the weapon was intended to be used in a crime such as the one that led to Schafer’s

death. The extraneous evidence was clearly probative to show appellant’s participation in

the robbery that led to Schafer’s death.


       We next consider whether the evidence’s probative value outweighed its prejudicial

effect. In examining the record, we note that although the offense in chief dealt with the

emotional issue of the death of a Texas Tech student and included photographs of the

scene and the autopsy of Schafer’s body, evidence relating to the extraneous offense was

presented almost matter-of-factly. Two witnesses testified to the actual shooting and

identified appellant as a suspect in that shooting. Two police officers testified as to the

investigations of the separate offenses and the possible link between them. A firearm

examiner testified to ballistic examinations on shell casings that connected the two shooting

incidents to the same rifle. Testimony relating to the second shooting did not involve any

injury and no disturbing photographs or emotional testimony was introduced in that regard.

Thus, we conclude that the evidence relating to the second shooting had very little potential

to impress the trial jury in an irrational or indelible manner. Out of the some 450 pages of

testimony, only 80 pages were related to the extraneous offense.


       A majority of the testimony related to the extraneous offense was focused on the

development of the identification of the suspects, the similarities between the two offenses,

                                             6
and the ballistic comparison between weapons used in the two offenses. Indeed, the

testimony was, in the main, focused on the difficulty the police were having identifying

suspects in the murder until the discovery of the spent cartridges found at the scene of the

second shooting. There was very little testimony relating to appellant or his character.


       With regard to intent and identity, the jury could reasonably consider the testimony

that appellant fired a rifle at a residence with Gabriel’s encouragement to infer that

appellant knew or should have known that Gabriel was willing to use the gun against

Schafer. The jury could also have considered the testimony concerning appellant’s use of

the 9 mm rifle as evidence that appellant had intent to kill. See Mercado v. State, 718

S.W.2d 291, 295 (Tex. Crim. App. 1986). Whether appellant had knowledge or intent to

participate in Schafer’s murder was directly at issue in this case.


       In summary, for the reasons we have iterated, the State met its burden to

demonstrate that the evidence was relevant and that its probative value exceeded its

prejudicial effect. Appellant’s first point is overruled.


       Because it also concerns the admissibility of evidence, we next consider appellant’s

fourth point. In that point, he contends the trial court reversibly erred in excluding Gabriel’s

written statement. In supporting that theory, appellant contends that the confession was

admissible as a statement against interest. In relevant part, Rule 803(24) provides that a

statement that at the time of its making is so far contrary to the declarant’s interest as to

tend to subject the declarant to criminal liability is not excluded by the hearsay rule even

if the declarant is available as a witness. Tex. R. Evid. 803(24). However, it further


                                               7
specifically provides that in criminal cases, “a statement tending to expose the declarant

to criminal liability is not admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement.” Id. In that connection, although the trial court ruled that

the entire confession was not admissible, it did allow appellant to explore any portion of

Gabriel’s statement so long as those portions were corroborated by other evidence.


       A trial judge’s evidentiary ruling will be affirmed if the trial court follows the

appropriate analysis and balancing factors. See Montgomery v. State, 810 S.W.2d at 380.

Under this record, the trial court did not abuse its discretion in making its ruling. Appellant’s

fourth issue is overruled.


       In his second and third points, appellant contends the evidence is legally and

factually insufficient to sustain his conviction of capital murder. In particular, he argues that

even if the evidence was sufficient to show he agreed to assist Gabriel in a robbery, he had

no intention of killing the victim and the evidence was not sufficient to establish that

essential element of his conviction.


       Evidence is legally sufficient if, viewed in the light most favorable to the jury’s verdict,

a rational jury could find the essential elements of the offense beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis

v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996). Evidence is factually sufficient if,

when all of the evidence is considered in a neutral light, a rational jury can make a finding

of guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim.

App. 2004).


                                                8
       In these two challenges, as we have noted, appellant only disputes the sufficiency

of the evidence to establish whether he intended to aid or assist in causing Schafer’s death.

For the purpose of this discussion, we will assume, arguendo, that appellant is correct in

contending that his statement is the only evidence demonstrating his intent. We will first

consider his statement in a light most favorable to the verdict. In that statement, appellant

indicates that he was aware that Gabriel had and used a weapon during the commission

of robbing Schafer. He also indicates that he urged Gabriel to hurry up and never

attempted to dissuade Gabriel from using violence during the commission of the robbery.

Although appellant expresses fear of getting caught, his statement does not reveal anything

showing that the murder was unexpected. In his statement, appellant also describes that

after the shooting, he urged Gabriel to “come on” and he drove Gabriel away from the

murder site. He further describes how he helped Gabriel burn Schafer’s wallet by providing

hair spray as a means to help destroy evidence of the crime. In sum, viewing appellant’s

statement in a light most favorable to the verdict, a rational jury could have found the

essential elements of the capital murder of Schafer beyond a reasonable doubt.


       In considering the factual sufficiency question, the jury could have considered the

evidence against Gabriel as reducing appellant’s role in the incident and could have

considered it as minimizing appellant’s knowledge of the murder. Even so, in addition to

this testimony, the jury also heard that appellant owned the rifle used in the robbery,

provided and drove the getaway car, possibly profited from the proceeds of the robbery,

and assisted in the destruction of evidence. Intent is generally a fact question to be

determined by the jury. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). Intent


                                             9
may be inferred from the words and conduct of an accused. Hernandez v. State, 819

S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled in part on other grounds by Fuller v.

State, 829 S.W.2d 191 (Tex. Crim. App. 1992). After reviewing the evidence in toto, and

in a neutral light, we conclude that a rational jury had sufficient evidence to conclude that

appellant was guilty beyond a reasonable doubt. Because the evidence is legally and

factually sufficient to support the jury’s verdict, we overrule appellant’s second and third

points.


          Finally, as we have noted, in his fifth point, appellant contends the trial court

reversibly erred in denying his motion for continuance because the denial deprived him of

his right to present a witness in his favor. In support of that proposition, he argues that

through no fault of his own, Gabriel was not available to testify at his trial but would have

been available within two days thereafter.


          In considering a trial court’s ruling on a continuance motion, an appellate court

reviews the trial court’s action by an abuse of discretion standard. Heiselbetz v. State, 906

S.W.2d 500, 511 (Tex. Crim. App. 1995). To establish an abuse of discretion, an appellant

must show that the denial resulted in actual prejudice and harm to him or her. Id. Here,

in his motion seeking continuance, appellant recites the situation leading to the request for

the continuance with the conclusory statements that the continuance was necessary “to

ensure the Defendant’s 6th amendment [right] for compulsory process, for right to effective

assistance of counsel, his right to confront and cross-examination [of a] witness, his right

to a fair trial, and his due process rights under the 4th, 5th, 6th, and 14th amendments to the

U.S. Constitution and Art. 1, sec.10 of the Texas Constitution.” In this case, the record

                                              10
supports the conclusion that defense counsel did not attempt to timely locate the missing

witness and the motion for continuance was not actually filed until well into the course of

the trial. Moreover, although he asserts the missing witness’s testimony would have

“bolstered” his defense, he does not assert the testimony would have been crucial or

unique. The Court of Criminal Appeals has stated that mere desire to have more time to

prepare does not establish an abuse of discretion. Id. at 512. Additionally, although a

motion for new trial was filed, nowhere in the motion was a complaint made of the failure

to grant the motion for continuance. In Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim.

App. 1981), the court stated that the only means of preserving error in the overruling of a

motion for continuance due to an absent witness is a motion for new trial. Appellant’s fifth

point is overruled.


       In summary, all of appellant’s points are overruled, and the judgment of the trial

court affirmed.


                                                 Per Curiam

Do not publish.




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