                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00371-CR

JAMAL PETERS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F41221


                          MEMORANDUM OPINION


      Appellant Jamal Peters pleaded guilty to the offense of aggravated robbery. He

elected to have the jury assess his punishment and was sentenced to fourteen years’

imprisonment.    In his sole issue, Peters contends that the trial court erred by not

allowing him to testify at punishment as to the sexual nature of his relationship with the

victim. We will affirm.

      On the evening of January 18, 2007, the victim responded to a knock at his front

door. As he began to open the door, two men dressed in black and wearing masks and
gloves rushed into his home. The victim recognized one of the intruders as Peters, who

occasionally worked at his home and at his pet-grooming business. The victim did not

recognize the other intruder, who was later identified as Michael Bean. Bean pushed

the victim against the wall, put a gun up to his head, and demanded money. When the

victim replied that he did not have any money, Bean hit him in the head with the butt of

the gun. The men then pushed the victim into the kitchen. Soon thereafter, Bean forced

the victim into the bedroom. The victim saw that Peters had located a safe that the

victim kept hidden in his bedroom closet. Peters and Bean had the victim get the key

and open the safe. The safe contained about $4,000. As Peters and Bean then tried to

figure out if they could steal any other items, Bean hit the victim in the head about

seven times. Peters and Bean then put the victim on the floor in the utility room, and

Peters bound the victim with duct tape. Peters also ripped out the telephones from the

wall. In all, Peters and Bean took about $4,000 from the safe, an antique butter churn

full of coins, and the victim’s cell phone.

        Prior to trial, the State filed a motion in limine asking the trial court in part to

order Peters, his counsel, and defense witnesses not to allude to, refer to, or in any way

bring before the jury any matter regarding “evidence of character or conduct of any

State’s witness” and “[t]he personal habits of the State’s witnesses such as drinking, use

of drugs or sexual activity, not shown to the Court to be material to this cause” without

first approaching the bench and advising the court. The trial court granted the motion

in limine.




Peters v. State                                                                       Page 2
        During the punishment phase, Peters testified that he is a Hurricane Katrina

evacuee who arrived in Cleburne, Texas, in 2006 when he was seventeen years old.

Peters was looking for a job, so a friend introduced him to the victim. Peters worked for

the victim for approximately seven or eight months. Peters stated that the victim would

pay him daily or weekly, depending on what type of job it was. Peters earned $15 to

$20 or $60 to $70, depending on what type of job it was. When asked what type of

things he would have to do for the victim in order to get paid, he replied, “Well, he

would have me mow -- mow his lawn, shovel the dog droppings, clean the kitty litter

boxes, and have sex with him.” At that time, the State asserted that the answer was a

violation of the motion in limine.

        At defense counsel’s request, a hearing on the admissibility of the testimony was

held outside the presence of the jury. During the hearing, Peters testified that the

victim, aware of Peters’ need for more money, offered to pay Peters to have sex with

him. Peters was seventeen years old at the time, and he thinks the victim was forty or

fifty. Peters agreed to the offer from the victim on a business basis only, and he and the

victim would have sex two or three times a week for which Peters would receive $60 to

$100 per encounter. The trial court sustained the State’s objections, including relevancy

and Rule 403, and excluded the evidence.

         We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Under an abuse of

discretion standard, we will uphold the decision of the trial court concerning the




Peters v. State                                                                     Page 3
admissibility of evidence unless the ruling rests outside the zone of reasonable

disagreement. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

        Section 3(a) of article 37.07 of the Code of Criminal Procedure governs the

admissibility of evidence at punishment:

        Regardless of the plea and whether the punishment be assessed by the
        judge or the jury, evidence 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)(1) (Vernon Supp. 2010). Relevancy in the

punishment phase is “a question of what is helpful to the jury in determining the

appropriate sentence for a particular defendant in a particular case.” Rogers v. State, 991

S.W.2d 263, 265 (Tex. Crim. App. 1999). In punishment, then, admissibility of evidence

is more a matter of policy than of “logical relevance.” Id. We will assume that Peters’

testimony was relevant in the punishment phase.

        But under Rule 403, otherwise relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence.” TEX. R. EVID. 403.

             In its seminal decision in Montgomery v. State, the Court of Criminal
        Appeals identified four non-exclusive factors to be considered in

Peters v. State                                                                      Page 4
        determining whether evidence should be excluded under Rule 403. 810
        S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g). Those factors
        were: (1) the probative value of the evidence; (2) the potential to impress
        the jury in some irrational, yet indelible way; (3) the time needed to
        develop the evidence; and, (4) the proponent’s need for the evidence. See
        id. (citing 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL
        PRACTICE AND PROCEDURE § 5250, at 545-51 (1978); EDWARD J.
        IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE §§ 2:12, 8:03, 8:07
        (1984)); accord Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005).

              More recently, the Court has looked to the language of Rule 403
        and restated the pertinent factors.

             [A] trial court, when undertaking a Rule 403 analysis, must balance
             (1) the inherent probative force of the proffered evidence along
             with (2) the proponent’s need for that evidence against (3) any
             tendency of the evidence to suggest decision on an improper basis,
             (4) any tendency of the evidence to confuse or distract the jury from
             the main issues, (5) any tendency of the evidence to be given undue
             weight by a jury that has not been equipped to evaluate the
             probative force of the evidence, and (6) the likelihood that
             presentation of the evidence will consume an inordinate amount of
             time or merely repeat evidence already admitted. Of course, these
             factors may well blend together in practice.

        Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
        (footnotes omitted); accord Subirias v. State, 278 S.W.3d 406, 408 (Tex.
        App.—San Antonio 2008, pet. ref’d); Brock v. State, 275 S.W.3d 586, 590
        (Tex. App.—Amarillo 2008, pet. ref’d); Stafford v. State, 248 S.W.3d 400,
        411-12 (Tex. App.—Beaumont 2008, pet. ref’d); but see De La Paz [v. State],
        279 S.W.3d [336, 349 (Tex. Crim. App. 2009)] (applying Montgomery
        factors).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote

omitted).

        Peters contends that his testimony that the victim, “an older man,” was paying

him, “a 17 year old boy,” for sexual activity, combined with the testimony of his family

and severe financial troubles, was necessary to show that the victim had Peters “backed


Peters v. State                                                                        Page 5
into a corner where the only options Mr. Peters saw were prostitution or stealing.”

Peters states in his brief, “This type of argument would be something that a jury would

most certainly take into account when determining why, the then seventeen year old,

Mr. Peters, would rob someone who had given him a job, and it might have shortened

Mr. Peter’s [sic] jail term.”

        But nothing in the record suggests a connection between the alleged sexual

arrangement between Peters and the victim and the aggravated robbery. As the State

points out in its brief, there was no mention that the victim failed to pay for one of the

sexual encounters or that Peters was shortchanged in any way for sexual services

rendered. Furthermore, the testimony would tend to suggest a decision on an improper

basis and tend to confuse or distract the jury from the main issues. And while the

presentation of this evidence would not consume an inordinate amount of time, it

would be partially repetitious of evidence already admitted.           Peters had already

testified at the punishment phase that the victim paid him for sex.

        For these reasons, the trial court did not abuse its discretion in excluding Peters’

testimony at punishment as to the sexual nature of his relationship with the victim. We

overrule Peters’ sole issue and affirm the trial court’s judgment.



                                                  REX D. DAVIS
                                                  Justice




Peters v. State                                                                       Page 6
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 24, 2010
Do not publish
[CR25]




Peters v. State                                 Page 7
