      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00362-CR




                                Joseph Alex Melendrez, Appellant

                                                   v.

                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-09-205564, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Joseph Alex Melendrez pleaded guilty to aggravated robbery. See Tex.

Penal Code Ann. § 29.03 (West 2003). A jury assessed his punishment, enhanced by a previous

felony conviction, at twenty-two and one-half years in prison. In a single point of error, appellant

contends that the trial court erred by admitting evidence of appellant’s involvement in a homicide

investigation. We overrule this contention and affirm the conviction.

                On the afternoon of September 24, 2009, appellant approached Matilde Esquivel-Soto

as she sat in her car outside a store, ordered her out of the car at gunpoint, got in the car, and drove

away. Appellant was arrested a short time later while sitting in Esquivel-Soto’s car and rummaging

through her belongings. A loaded pistol identified as appellant’s was found in the car. The

complainant’s bank card and checkbook were among the items found on appellant’s person at the

time of his arrest.
               The State introduced evidence of appellant’s previous convictions for possession of

heroin (the offense used to enhance), possession of marihuana, fraudulent possession of identifying

information, unauthorized use of a vehicle, unlawfully carrying a weapon, and assault. The State

also introduced evidence regarding two unadjudicated offenses committed by appellant: an assault

of another jail inmate while awaiting trial in this cause and a theft of crack cocaine one month before

the charged robbery. Appellant’s point of error relates to the latter offense.

               Sergeant Jeff Crawford testified that he was assigned to the homicide unit of the

Austin Police Department. In August 2009, he interviewed appellant at the homicide office

and eventually took a written statement. The statement was introduced in evidence. In it,

appellant described how he was approached by “the brother of Pete Carbajal” about purchasing

five twenty-dollar rocks of crack cocaine. Claiming to know where a purchaser for the cocaine

lived, appellant got in Pete’s brother’s car and directed him to a house on Pickle Drive.

Appellant explained, “At this point my plan was to rip off the cocaine from Pete’s brother.” The

statement continued:


       I told Pete’s brother to pull up and stop in front of the house and I told him I picked
       up my phone and acted like I was calling someone and I acted like I was telling the
       person on the other end that I was fixing to meet them around back. I acted like I
       hung up and Pete’s brother opened the pill bottle and poured the five rocks of crack
       cocaine into my hand. I got out of the car and went around the back of the house.
       Once I was out of his sight, I took off running and ran through a yard over to Charles
       Street. . . . [M]y cousin Javier Ramirez was waiting in my mom’s truck for me. I
       jumped into the driver’s seat and we drove off.


The statement went on to say that appellant was subsequently contacted by Crawford and agreed to

speak to him, and that appellant identified a photograph of Pete’s brother.

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               The jury was not told that after appellant fled with the stolen cocaine, Pete’s brother,

Catalino Carbajal, fired shots into the house on Pickle Drive, believing that this was where appellant

had gone. A bullet struck and killed an occupant of the house. This was the homicide Crawford was

investigating when he interviewed appellant.

               In addition to seeing appellant’s statement, the jury also heard a portion of a recorded

telephone call from the jail in which appellant mentioned being involved in a murder investigation.

Immediately after this recording was played, the trial court instructed the jury: “As to the reference

you just heard the defendant make in that tape concerning a murder investigation, you are instructed

that the State is not alleging that the defendant committed any homicide, and the investigation

showed, in fact, that this defendant could not be charged with any such act.”

               Appellant urges that the trial court abused its discretion by permitting Crawford to

identify himself as a homicide officer and by allowing the jury to be told that appellant’s written

statement was taken at the homicide office as part of a homicide investigation. He also asserts that

the jury should not have been informed that appellant identified Catalino Carbajal’s photograph. He

argues that “the State offered the foregoing evidence for the sole purpose of insinuating to the

jury that the appellant was responsible for someone’s death when he stole crack cocaine from

Catalino Carbajal.” Appellant contends that the admission of this evidence violated article 37.07

because the evidence did not show beyond a reasonable doubt that he was criminally responsible for

the homicide. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010). He also

contends that any relevance the evidence might have had was outweighed by the danger of unfair

prejudice. See Tex. R. Evid. 403.



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                We agree that from what they were told, the jurors likely inferred that appellant’s theft

of the crack cocaine from Carbajal had some relevance, or at least some suspected relevance, to a

homicide that Crawford was investigating. We do not agree, however, that the jurors would

necessarily have inferred that appellant committed the homicide or was somehow criminally

responsible for it. For one thing, it is probable that the jurors would have assumed that if appellant

had committed a homicide, they would have been told about it—just as they were told about the jail

assault and the cocaine theft. More significantly, any risk that the jurors would have inferred that

appellant was criminally responsible for the homicide was dispelled by the trial court’s admonitory

instruction that appellant was not accused of committing a homicide and that “the investigation

showed, in fact, that this defendant could not be charged with any such act.”

                Appellant does not dispute the admissibility of the cocaine theft. In response to

appellant’s objections, the trial court did not permit the State to offer evidence that this theft led to

a fatal shooting. The court was also careful to instruct the jury that although appellant had been

interviewed by a homicide detective, appellant was not accused or guilty of a homicide. No abuse

of discretion is shown.

                The point of error is overruled, and the judgment of conviction is affirmed.




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                                          ___________________________________________

                                          Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: June 14, 2011

Do Not Publish




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