Opinion filed November 8, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-16-00324-CR
                                     __________

                    NATHANIEL OLIVAS, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

                    On Appeal from the 161st District Court
                             Ector County, Texas
                       Trial Court Cause No. B-44,614


                     MEMORANDUM OPINION
      Nathaniel Olivas entered an open plea of guilty to the first-degree felony
offense of aggravated assault of a public servant. See TEX. PENAL CODE ANN.
§ 22.02(b)(2)(B) (West 2011). The jury convicted him of the offense, as instructed
by the trial court, and assessed his punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of seventy-five
years. Appellant presents two issues on appeal. We affirm.
                                   Background Facts
      On the night of December 8, 2014, Appellant and his friends drove through
residential neighborhoods in Odessa, Texas. Appellant testified that he planned to
ride around town and steal whatever he could find. He had consumed approximately
eight to ten Xanax pills, and he was carrying a gun. Appellant and his friends stole
a variety of items from parked vehicles, including guns, clothing, and unopened
Christmas presents.
      Later that night, Odessa Police Officer Anthony Rossman responded to a call
about a suspicious vehicle. He pulled over the car carrying Appellant and his friends.
Appellant jumped out of the passenger side of his friend’s car and fled on foot as
Officer Rossman approached. Officer Rossman chased Appellant and commanded
him to stop. During this foot pursuit, Appellant ran across a yard, hurdled a fence,
and ran down an alley to hide. In the alley, Appellant fell to the ground.
      With Officer Rossman still in pursuit, Appellant propped himself up, pointed
his gun at Officer Rossman, and fired two shots.             One of the shots hit
Officer Rossman just below his left knee. Officer Rossman then immediately ran
for cover, and Appellant ran away. Appellant was eventually arrested by other
officers and gave a full confession.
      At Appellant’s punishment trial, the State called Corina Ramirez, an
employee of the Ector County Sheriff’s Department, as a witness. Upon calling
Ramirez as a witness, the State immediately asked to approach the bench, and the
trial court excused the jury. At a hearing outside the jury’s presence, the State
explained that it had called Ramirez to testify about a conversation she overheard
between Appellant and another inmate, James Render, shortly after their
arraignments.    Ramirez’s job duties included escorting inmates to court for
arraignment. According to Ramirez, Render told Appellant: “You should have shot
that m----r f----r in the head,” referring to Officer Rossman. In response, Appellant
stated: “I would have if I had a better aim. But when I shot him, he started running
like a little b---h.” Ramirez did not hear anything else from their conversation.


                                          2
        Before Ramirez testified, Appellant objected to her testimony. Appellant
argued that the statement made by Render was hearsay and that its admission
violated the Confrontation Clause. The trial court agreed and ruled that Ramirez
could not testify as to what Render had told Appellant. However, the trial court
permitted the State to ask Ramirez what she heard Appellant say in response to
Render’s comment. In response to the trial court’s ruling, Appellant objected under
Rule 403, asserting that the admission of only his statement in response to Render’s
question would confuse the jury and result in unfair prejudice.                          See TEX. R.
EVID. 403.
        Additionally, Appellant argued that this evidentiary ruling forced him to make
a “Hobson’s choice” of either waiving his constitutional rights under the Fifth
Amendment or waiving his constitutional rights under the Sixth Amendment.1
Specifically, Appellant asserts that the trial court’s ruling placed him in the
untenable position of having to either explain his statement, thereby waiving his
Fifth Amendment privilege, or having to ask about Render’s statement by cross-
examining Ramirez, thereby waiving his Sixth Amendment privilege. The trial court
overruled Appellant’s Rule 403 objection. Appellant asserts that the trial court
violated his due process rights by overruling his Rule 403 objection.
                                               Analysis
        Appellant asserts two interrelated issues on appeal. Both of Appellant’s issues
arise from the trial court overruling his Rule 403 objection. In his first issue, he
asserts that the trial court’s ruling violated his due process rights. In his second issue,
Appellant contends that the trial court abused its discretion when it failed to exclude
his out-of-court statement to Render under Rule 403.                         We will first address
Appellant’s second issue.

        1
         A Hobson’s Choice is “a choice with the appearance of several options, but [there is] really only
one option.” Tutt v. State, 339 S.W.3d 166, 174 (Tex. App.—Texarkana 2011, pet. ref’d).
                                                   3
      We review a trial court’s ruling under Rule 403 for an abuse of discretion.
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). This standard
requires an appellate court to uphold a trial court’s evidentiary ruling when it is
within the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760
(Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.
2001). We will uphold the trial court’s ruling on the admission or exclusion of
evidence if the ruling was proper under any legal theory or basis applicable to the
case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
      Under Rule 403, 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; see Young v. State, 283 S.W.3d 854,
874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than
prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v.
State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is
unfairly prejudicial when it has the undue tendency to suggest an improper basis for
reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000);
Render, 347 S.W.3d at 921.
      In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991)). When
conducting a Rule 403 analysis, the trial court must balance:
      (1) the inherent probative force of the proffered item of evidence along
      with (2) the proponent’s need for that evidence against (3) any tendency
      of the evidence to suggest [a] decision on an improper basis, (4) any
      tendency of the evidence to confuse or distract the jury from the main
                                         4
      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.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403,
however, does not require that the balancing test be performed on the record.
Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref’d). In
overruling a Rule 403 objection, the trial court is assumed to have applied a Rule 403
balancing test and determined that the evidence was admissible. Id.
      Appellant asserts that, without any contextual facts explaining his statement
to Render, the danger of unfair prejudice inherent in the statement and confusion of
the issues substantially outweighed his statement’s probative value. With respect to
the statement’s probative value, we note that the statement was offered during
punishment. At the punishment phase of trial, there are no discrete factual issues;
rather, deciding what punishment to assess is a normative process. Rogers v. State,
991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (citing Miller-El v. State, 782 S.W.2d
892, 895–96 (Tex. Crim. App. 1990)).          “[A]dmissibility of evidence at the
punishment phase of a non-capital felony offense is a function of policy rather than
relevancy.” Miller-El, 782 S.W.2d at 895. The jury is entitled to consider “any
matter the court deems relevant to sentencing.” TEX. CODE CRIM. PROC. ANN.
art. 37.07, § 3(a)(1) (West Supp. 2018). These matters include the defendant’s
character and the circumstances of the offense for which he is being tried. Id.
“Nevertheless, admissibility of punishment-phase evidence that the trial court deems
relevant is still subject to a Rule 403 analysis.” Rodriguez v. State, 163 S.W.3d 115,
119 (Tex. App.—San Antonio 2005) (citing Rogers, 991 S.W.2d at 266–67), aff’d,
203 S.W.3d 837 (Tex. Crim. App. 2006).


                                          5
      Pursuant to the trial court’s evidentiary ruling, the State questioned Ramirez
in the jury’s presence about Appellant’s statement. Ramirez testified that she heard
Appellant say: “[I] would have, if [I] had had a better aim, but when [I] started
shooting him, he started running like a little b---h.” Appellant contends that this
statement alone, without Render’s initial comment to Appellant, is devoid of any
context and, thus, that its probative value is “weak.” Appellant asserts that his
statement was not probative of any issues the jury could consider in determining an
appropriate sentence and was unfairly prejudicial. We disagree.
      Evidence pertaining to the accused’s “personal responsibility” and “moral
culpability” for the crime charged is admissible at punishment. See Stavinoha v.
State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991) (per curiam).            Appellant’s
statement, as relayed through Ramirez, was probative of Appellant’s knowledge of
the shooting, personal responsibility, and moral culpability. Although the jury did
not know to whom Appellant communicated this statement and in what specific
context, the statement alone is probative of Appellant’s apparent lack of remorse for
shooting Officer Rossman.
      Further, Appellant’s statement of wishing he had better aim and how
Officer Rossman reacted to his gunfire were relevant to his personal responsibility,
moral culpability, and lack of remorse.       Thus, we disagree with Appellant’s
contention that this evidence caused the jury to decide his punishment on an
improper basis. Rather, Appellant’s statement aided the jury in gauging his moral
blameworthiness in order to assess his punishment. Furthermore, the record does
not reflect that Appellant’s statement consumed an inordinate amount of time to
present or repeated evidence already admitted. Accordingly, we conclude that the
trial court did not abuse its discretion by overruling Appellant’s Rule 403 objection
to Ramirez’s testimony about the statement Appellant made to Render. We overrule
Appellant’s second issue.
                                          6
      In his first issue, Appellant contends that the trial court violated his due
process rights by overruling his Rule 403 objection. Specifically, Appellant claims
that the trial court’s ruling forced him into having to choose between the following
options: (1) cross-examining Ramirez about Render’s initial statement, thereby
waiving his Sixth Amendment right to confront Render; or (2) testifying about his
statement to Render to provide context for the statement, thereby requiring him to
waive his Fifth Amendment right against self-incrimination. Appellant asserts that
either choice would result in a compelled waiver of one of his fundamental
constitutional rights.
      With respect to our disposition of Appellant’s first issue, we have determined
that the trial court did not err in overruling Appellant’s Rule 403 objection. In
Caston v. State, the First Court of Appeals noted that the safeguards of Rule 403
serve to protect a defendant’s due process rights because it “ensure[s] that potentially
devastating evidence of little probative value will not reach the jury.” 549 S.W.3d
601, 610 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting United States v.
LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001)). Thus, with respect to the admissibility
of evidence, so long as the evidence is subject to a Rule 403 analysis, the right to a
fair trial remains adequately safeguarded. Id. at 610. We conclude that Appellant’s
due process rights were not violated because the trial court considered Appellant’s
Rule 403 objection and then entered a ruling on it, which we have determined was
not erroneous.
      Furthermore, Appellant did not make either of the two choices he argued he
was forced to make after the trial court overruled his Rule 403 objection. After the
trial court overruled his Rule 403 objection, Appellant stated that he would be forced
to cross-examine Ramirez about Render’s statement to Appellant. But when the
opportunity arose, Appellant chose not to cross-examine Ramirez. Additionally,
although Appellant did testify at his punishment trial, he did not address or provide
                                           7
any context to his own statement during his direct examination. Nor did Appellant
provide context to his statement on cross-examination when questioned about it by
the prosecutor. Rather, he simply denied that he ever made the statement, and he
stated that he did not think Ramirez was telling the truth when asked by the
prosecutor about his opinion on her veracity. Thus, Appellant did not make either
choice that he claims deprived him of a fair trial.
      Moreover, the trial court’s ruling on Appellant’s Rule 403 objection was not
the kind of ruling that required Appellant to make a choice between constitutional
rights. See generally Simmons v. United States, 390 U.S. 377, 393–94 (1968);
Crosson v. State, 36 S.W.3d 642, 645 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d). In Crosson, for example, the defendant sought to challenge the search of his
vehicle under the Fourth Amendment in a suppression hearing, but he did not want
to completely waive his Fifth Amendment right against self-incrimination. Crosson,
36 S.W.3d at 645. Because the defendant did not completely waive his Fifth
Amendment right, the trial court did not permit him to testify in support of his
suppression motion. Id. On appeal, the court concluded that this was “constitutional
error because a defendant cannot be made to give up one constitutional right [the
Fifth Amendment right against self-incrimination] in order to assert another [the
Fourth Amendment right against illegal search and seizure].” Id.
      Contrary to the situation in Crosson, Appellant was not forced to make a
similar choice.    In particular, Appellant was not forced to waive his Fifth
Amendment right to assert his Sixth Amendment right. Nor was Appellant required
to waive his Sixth Amendment right to assert his Fifth Amendment right. Instead,
Appellant was simply presented with a difficult choice to make with respect to his
Fifth Amendment right against self-incrimination.
      The Texas Court of Criminal Appeals addressed a similar situation in Cantu v.
State, 738 S.W.2d 249, 255–56 (Tex. Crim. App. 1987). The defendant in Cantu
                                           8
was faced with a “difficult choice” at his punishment trial: Should he testify in
rebuttal to the State’s evidence that he had shot a police officer and be subject to
cross-examination, thereby waiving his right against self-incrimination on all
relevant issues, knowing some unfavorable evidence might result from cross-
examination; or should he retain that right and not put his version of some aspect of
the case before the jury? Id. at 256. The court stated:
        This difficult decision does not impose an impermissible burden upon
        the exercise [of] Fifth Amendment rights. No constitutional violation
        is presented by the fact of a difficult decision for a defendant.
        Appellant’s due process rights are not violated. He must weigh the
        benefits of presenting his case against the detrimental possibilities that
        cross-examination on all relevant issues might present.
Id. Accordingly, the trial court’s ruling on Appellant’s Rule 403 objection did not
violate Appellant’s due process rights. We overrule Appellant’s first issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




November 8, 2018                                                            JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b).                                CHIEF JUSTICE
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals2;
and Wright, S.C.J.3

Willson, J., not participating.




        2
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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