                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-12-00401-CR
                                     No. 10-12-00407-CR
                                     No. 10-12-00413-CR

SAUL CARRIZALES LOERA,
                                                                     Appellant
    v.

THE STATE OF TEXAS,
                                                                     Appellee



                         From the 54th District Court
                           McLennan County, Texas
          Trial Court Nos. 2011-2309-C2, 2012-63-C2 and 2011-2310-C2


                              MEMORANDUM OPINION


         In these three cases, Saul Carrizales Loera pleaded guilty to four felony offenses

(two counts of aggravated robbery, aggravated assault with a deadly weapon, and

possession of a controlled substance with intent to deliver).1 A punishment hearing

was held before a jury, which assessed punishment ay sixty years’ imprisonment on

1 The guilty pleas were part of an agreement in which the State agreed to drop the drug-free-zone
enhancement allegation in the possession case, to withdraw its motion to cumulate sentences, and to not
pursue additional charges against Loera.
each aggravated robbery charge, twenty years’ imprisonment on the aggravated assault

charge, and thirty years’ imprisonment on the possession charge.         The trial court

entered judgments accordingly, with the sentences to be served concurrently. In his

sole issue in all three cases, Loera complains about the admission of evidence in the

punishment hearing. We will affirm.

         Briefly, the punishment evidence shows that Loera and Clarissa Martinez were

arguing. Miguel Figueroa and his brother Juan were in a nearby car eating lunch, and

Miguel testified that as Martinez was driving away, Loera fired a gun at Martinez’s car.

Miguel said that Loera then approached Miguel’s car, pointed his gun at Miguel and

Juan, and robbed them of their telephones and wallets.

         Former Waco police detective Steve January investigated the assault and

robbery, and after identifying Loera as a suspect, the Figueroas identified Loera as the

robber. January interviewed Clarissa Martinez, which led to the discovery of a bullet

hole in the driver’s door of her car. January obtained an arrest warrant for Loera, and

Waco police officer Steve Anderson executed it and arrested Loera at a Waco residence

with the address of 617 North 33rd Street. During a protective sweep of the residence,

police discovered the contraband (cocaine along with drug paraphernalia) that

constituted the possession offense.

         In explaining how Loera was linked to the offenses by a witness and his location

was found, January testified:

               Q. … And then, what did you do next to try and link the
         Defendant to this crime?


Loera v. State                                                                     Page 2
                A. The information we retrieved from a witness gave us a
         particular house, location that Saul Loera was identified as being
         associated with. So I ran that particular address through our database.

                 Q. And then, do you remember what that address was or what
         street it was on?

                 A. 627 North 33rd.

                 Q. 617 North 33rd?

                 A. Yes. Yes. I’m sorry.

                 Q. So you ran this address?

                 A. I did.

                 Q. And then what information came back for that address?

                 A. Well, and I also had ran his particular name.

                 Q. Okay.

                 A. To see if it was associated with the address we had.

                 Q. And that’s through a database in Waco?

                 A. Yes.

                 Q. Okay.

                 A. That’s the database that I drew some conclusions on.

                 Q. And what conclusions did you draw from that?

               A. Well, there were 70 entries for Saul Loera’s name. And I
         physically counted each of the entries and there were 65 that associated
         him with that particular address on North 33rd that corroborated what the
         witness had told me.

               [Defense Counsel]: Judge, I’m going to object to him referring to
         the number of incidences. He had the information available. Any


Loera v. State                                                                       Page 3
          specificity to that would be – I would object to that under 403 as well as
          404.

                  THE COURT: Overruled.

          Loera’s sole issue asserts that the trial court abused its discretion by admitting

this alleged extraneous-offense evidence offered by January.2 We review a trial court’s

decision to admit or exclude evidence for an abuse of discretion. McDonald v. State, 179

S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion standard, an

appellate court should not disturb the trial court’s decision if the ruling was within the

zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App.

2008).

          Section 3(a) of Article 37.07 of the Code of Criminal Procedure grants trial courts

broad discretion to admit evidence, including extraneous-offense evidence, during the

punishment phase. The relevant statutory language is:

          [E]vidence may be offered by the state and the defendant as to any matter the
          court deems relevant to sentencing, including but not limited to the prior
          criminal record of the defendant, his general reputation, his character, an opinion
          regarding his character, the circumstances of the offense for which he is being
          tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
          other evidence of an extraneous crime or bad act that is shown beyond a
          reasonable doubt by evidence to have been committed by the defendant or for
          which he could be held criminally responsible, regardless of whether he has
          previously been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2013).

          “[T]he admissibility of evidence at the punishment phase of a non-capital felony

offense” trial “is” really “a function of policy rather than relevance.” Rodriguez v. State,



2   On appeal Loera does not argue that the evidence was inadmissible under Rule of Evidence 403.

Loera v. State                                                                                      Page 4
203 S.W.3d 837, 842 (Tex. Crim. App. 2006); accord Miller-El v. State, 782 S.W.2d 892, 894-

95 (Tex. Crim. App. 1990). “Evidence is ‘relevant to sentencing,’ within the meaning of”

Article 37.07, Section 3(a), “if the evidence is ‘helpful to the jury in determining the

appropriate sentence for a particular defendant in a particular case.’” McGee v. State,

233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (quoting Rodriguez, 203 S.W.3d at 842). The

test for relevancy is much broader during the punishment phase because it allows a jury

to consider more evidence in exercising its discretion to assess punishment within the

appropriate range. See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op. on

reh’g).

          The State contends that January’s reference to the database entries for Loera was

not extraneous-offense evidence; we agree. Rule 404(b) provides: “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.” TEX. R. EVID. 404(b). “An extraneous offense is

defined as any act of misconduct, whether resulting in prosecution or not, that is not

shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.

1996). The evidence must show that a crime or bad act was committed and that the

defendant was connected to it. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.

1993). “If the challenged evidence does not show that an offense was committed … ,

then it is not evidence of an extraneous offense.” Mayo v. State, 17 S.W.3d 291, 299 (Tex.

App.—Fort Worth 2000, pet. ref’d).

          Accordingly, the trial court did not abuse its discretion in overruling Loera’s

Rule 404 objection to January’s testimony about the database entries because there was

Loera v. State                                                                       Page 5
no evidence that the entries pertained to a crime or bad act connected to Loera.     We

overrule Loera’s sole issue and affirm the trial court’s judgments in each case.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed December 12, 2013
Do Not Publish
[CRPM]

*(Chief Justice Gray concurs in the judgment only. A separate opinion will not issue.)




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