Opinion issued October 9, 2003




                                     In The


                                     For The
                                                waxed




                              NO. 01-02-01182-CR



                        JONATHAN JUDGE, Appellant

                                        V.


                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 248th District Court
                              Harris County, Texas
                         Trial Court Cause No. 912141



                          MEMORANDUM OPINION


      Appellant, Jonathan Judge, was indicted for the offense of murder. A jury

found appellant guilty andassessed hispunishment at 60years' confinement. Inone

issue, appellant claims that the court erred byadmitting extraneous-offense evidence
that appellant possessed a gun priorto the murder. We affirm.

                                    Background

       Michelle Millare and appellantdated for about one and one-halfyears. On the

day Michelle disappeared, appellant and Michelle eachvisited the home ofMichael

and Jamira Foster. Appellant took his car to Michael for repair of the radiator.

Michelle arrived separately in her 4Runnerto visit Jamira. While Michellewas in the

apartment with Jamira, the two men sat inside appellant's car and talked.

       During their discussions, appellant displayed a .25-caliber gun and asked

Michael if he had bullets for it. Michael claimed that he did not. Appellant opened

the gun's clip, causing Michael to notice bullets inthe clip. Appellant asked Michael

whether the gun would kill if appellant used it to shoot someone in the head, and

Michael responded that it could. Michael leftappellant, went intohis apartment, and

called Michelle to appellant's car at appellant's request.

       After he had been in his apartment for 15 to 30 minutes, Michael walked

outside and saw that Michelle and appellant were still together inside appellant's car.

Michelle was sitting on appellant's lap, hugging and kissing him. Later that

afternoon, Jamira saw Michelle leave in her4Runner, with appellant following in his

car.



       When Michelle did not come home that night, her family calledhercell phone,
pager, and friends in an attempt to locate her, and reported Michelle's disappearance

to the police. Her family discoveredthat Michelle's ATM card was used to withdraw

money on the night she disappeared. When Michelle's father spoke to Michael,

Michael said that Michelle and appellant had been at his apartment on the night she

disappeared. Appellant, however, claimed that he had not seen Michelle for months.

      Michelle's brother found her 4Runner parked at McGregor Parkwhen he was

posting flyers one day. Dried blood was found on the passenger seat, console and

floorboard. Her burned body was found on a dirt road near Lake Houston, and an

autopsy was conducted. The autopsy revealed that Michelle haddied from a contact

gunshot wound to her head caused by a .25 caliber bullet and that her body had been

burned with diesel fuel.

      During the police investigation, officers went to the gas station nearest to the

location where Michelle' sbodywas found and spokewith Patricia Foster. Foster told

police officers that she saw a green 4Runner pulling up to the diesel pump on the
night Michelle was discovered missing. According to Foster, appellant entered the

store, paid a few dollars for diesel fuel, and pumped the fuel, butFoster did notknow

whether appellant put the fuel into a container or a vehicle. She saw the 4Runner

leave in the direction of the site where Michelle's body was found.

       Officers obtained a warrant, arrested appellant, and received a written
statement from him. In the statement, appellant said that he had seen Michelle at the

Fosters' apartment, they separated at 3:00 P.M., and they reunited at 6:00 P.M. In a

written statement,appellant claimedthat Michelle drove himto an ATMmachineand

withdrew $140, which she gave to him. According to appellant, Michelle dropped

him off at a store near his home, and he spent the remainder of the night having his

hair braided and playing basketball. Contrary to appellant's written statement, two

inmates incarceratedwith appellant at the Harris County Jail, testified at appellant's

trial thatappellant told them thatheshot thevictim inthehead, burned thebody with

diesel fuel, and urinated on it.

                            Extraneous Offense Evidence

       In his sole point of error, appellant contends that the trial court erred in

admitting evidence ofanextraneous offense because it wasnotprobative ofany issue

in the case and was undulyprejudicial in defending his charge of murder by firearm.

A single question and answer posed to Michael Foster during the State's re-direct

examination is the subject of this appeal:

       Question by State:          Prior to February 20th, had you seen the defendant,
                                   Jonathan Judge, with a different gun than the one
                                   you saw him with onFebruary 20th?

       Answer:                     Yes, he had a -

       Question:                   That's okay. Thank You.
In overruling appellant's trial objection, the court conducted a balancing test, found

that the evidence was more relevant than prejudicial, and ruled that the evidence was

admissible to correct a false impression that Michael would have been alarmed at

seeing appellant in possession of a gun and would have immediately contacted the

police.

      An appellate court reviewing a trial court's ruling on the admissibility of

evidenceappliesthe abuse-of-discretion standardofreview. Weatherredv. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000). The appellate court must uphold the trial

court's ruling if it was within the zone of reasonable disagreement. Id. All relevant

evidence is admissible unless its probative value is substantially outweighed by the

danger of unfair prejudice. TEX. R. EVID. 403.             Evidence that is otherwise

inadmissible may be admitted to correct a false impression left by the questioning of

a witness. Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002).

          To understandthe trial court's ruling, it must be examined in the context ofthe

evidence introduced at appellant's trial. During direct examination by the State,

Michael testified thatappellant showed hima gunand asked himifhe had bullets for

it. Michael deniedhaving any. Appellant asked Michael whether the gun could kill

someone, and Michael responded that it could. Michael further testified that when

Michelle's father called looking for his daughter, he said that he last saw Michelle
with appellant. During cross-examinationofMichael,appellant's attorneyattempted

to establish that Michael was not telling the truth about appellant's request for bullets

because bullets would be unnecessary if the gun's clip already contained bullets.

Appellant's attorney suggested it would have been nonsensical for appellant to ask,

"Would this gun kill somebody if I shot them in the head?" because the answer to

such a question is obvious. Appellant's attorney further established that Michael

admitted that he never mentioned the gun or the statements made by appellant about

the gun to Michelle's father when he called looking for Michelle.

       The State contends that appellant's cross-examination left a false impression

with thejury that Michael would have been alarmed at seeing appellant with a gun,

wouldhave notified the police, and wouldhave told Michelle's fatheraboutthe gun

when he called. The State further contends that the evidence that Michael saw

appellant inpossession ofagun before Michelle's disappearance explains appellant's

lack ofreaction to seeing appellant in possession of a gun on the night of Michelle's

disappearance.

       We conclude that the trial court did not abuse its discretion in admitting the

testimony ofappellant's previous gunpossession. TheState waslimited to testimony

in a single question and answer. No details of the previous possession were

introduced, and no mention was made of the type of firearm in the previous
possession, or whether the possession was legal or illegal. Finally, no correlation was

shown between the type offirearm appellant was previously seen possessing and the

firearm he carried on the night of Michelle's disappearance. We conclude that the

court did not abuse its discretion in ruling that the probative value ofthe evidence to

correct a false impression outweighed any prejudicial effect of the evidence.

      We overrule appellant's sole issue.

                                     Conclusion


      We affirm the judgment of the trial court.



                                                Elsa Alcala
                                                Justice


Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.4.




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