
Opinion issued October 9, 2003
     









In The
Court of Appeals
For The
First District of Texas




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 and assessed his punishment at 60 years’ confinement.  In one
issue, appellant claims that the court erred by admitting extraneous-offense evidence
that appellant possessed a gun prior to the murder.  We affirm.Background
          Michelle Millare and appellant dated for about one and one-half years.  On the
day Michelle disappeared, appellant and Michelle each visited the home of Michael
and Jamira Foster.  Appellant took his car to Michael for repair of the radiator. 
Michelle arrived separately in her 4Runner to visit Jamira. While Michelle was 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 in the 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 left appellant, went into his 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 her 4Runner, with appellant following in his
car.
          When Michelle did not come home that night, her family called her cell phone,
pager, and friends in an attempt to locate her, and reported Michelle’s disappearance
to the police.  Her family discovered that 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 Park when 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 had died 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’s body was found and spoke with 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, but Foster did not know
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 claimed that Michelle drove him to an ATM machine and
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 incarcerated with appellant at the Harris County Jail, testified at appellant’s
trial that appellant told them that he shot the victim in the head, burned the body 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 of an extraneous offense because it was not probative of any issue
in the case and was unduly prejudicial 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 on February 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 
evidence applies the  abuse-of-discretion standard of review.  Weatherred v. 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 understand the trial court’s ruling, it must be examined in the context of the
evidence introduced at appellant’s trial.  During direct examination by the State,
Michael testified that appellant showed him a gun and asked him if he had bullets for
it.  Michael denied having 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-examination of Michael, appellant’s attorney attempted
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 the jury that Michael would have been alarmed at seeing appellant with a gun,
would have notified the police, and would have told Michelle’s father about the gun 
when he called.  The State further contends that the evidence that Michael saw
appellant in possession of a gun before Michelle’s disappearance explains appellant’s
lack of reaction 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 of appellant’s previous gun possession.  The State was limited 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 of firearm 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 of the 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.
