Opinion issued October 4, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NOS. 01-12-00106-CR
                                 01-12-00107-CR
                                 01-12-00108-CR
                          ———————————
                    MIGUEL MALDONADO, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



              On Appeal from the 300th Judicial District Court
                          Brazoria County, Texas
                       Trial Court Case No. 61283



                        MEMORANDUM OPINION

      In a single indictment, the State charged Miguel Maldonado with aggravated

sexual assault and two counts of aggravated kidnapping, all first-degree felony
offenses. See TEX. PENAL CODE ANN. §§ 20.04, 22.01(a) (West 2011). The jury

found Maldonado guilty of all three offenses and assessed his punishment at

thirty-five years’ incarceration and a $10,000 fine. In his single issue on appeal,

Maldonado contends that the trial court abused its discretion in admitting evidence

that he had stabbed one of the complainants, D.S., in Harris County, before

traveling to Brazoria County, the location of the charged crimes. Finding no error,

we affirm.

                                   Background

      D.S., a young single woman, lived near Austin, where she worked as a

cocktail waitress at a men’s club. She frequently returned to Houston to spend

time with her family and her son, C., who was two years old. According to the

visitation agreement with C.’s father, C. spent two weeks with one parent and then

two weeks with the other parent.

      In mid-December 2009, D.S. planned a trip to Pasadena to pick up C. for the

holidays. Before leaving, she posted on her Facebook page about her plans and her

interest in going out to a club after she arrived in Pasadena. The day before her

trip, D.S. received a telephone call from Maldonado, a friend of her brother and her

cousin’s boyfriend. Maldonado had not initiated contact with D.S. before, and

D.S. was surprised to hear from him. The next day, Maldonado posted a message




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on D.S.’s Facebook page, inviting her to get together with him while she was in

Pasadena.

      After D.S. arrived at her mother’s home, Maldonado called again, and D.S.

agreed to help him shop for a Christmas present for her cousin. While they were

out, they stopped for lunch. They conversed about drugs and came up with a plan

to sell ecstasy at the club where D.S. worked.

      D.S. spent much of the afternoon driving Maldonado to various locations so

that he could obtain the narcotics. While riding in the car, Maldonado began to ask

D.S. various questions of a sexual nature, suggesting that he sought the information

to help him further his relationship with D.S.’s cousin. Eventually, D.S. drove

Maldonado to his uncle’s house and left to pick up her son.

      D.S. took C. to her mother’s house. She then went to collect the narcotics

with Maldonado at an abandoned hospital in Pasadena. Maldonado went inside the

hospital and came out with a bag, which he deposited in the trunk. D.S. drove

Maldonado to his brother’s house so that he could leave the drugs there. D.S. did

not want to transport the narcotics with her son in the car, so Maldonado agreed to

bring them to her in Austin the following week.

      After this last errand, D.S. told Maldonado that she was ready to pick up her

son and head back to Austin. She rejected Maldonado’s request for a ride to

Austin, but agreed to take him to his cousin’s automotive shop in Pasadena. D.S.

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stopped at her mother’s house, put C. in his car seat, and drove to the shop.

Maldonado asked her to pull the car behind the shop. When D.S. stopped the car,

Maldonado asked her if she could show him her breasts and give him a kiss

goodbye. She refused and, still sitting in the driver’s seat, told him to get out of

the car. He reached for the door, then turned around and lunged at her. She felt

pressure on her stomach. At first she thought he had punched her, but soon

realized he had stabbed her and she was bleeding. She pleaded with him to stop,

but he stabbed her again in the stomach, then in the leg. She tried to prevent

Maldonado from stabbing her in the neck by shielding it with her hand; he stabbed

her ear, her face, and the back of her head, and then put the blade through her hand.

Maldonado told her she was going to die and ordered her to get out of the car. D.S.

refused to leave without her son and pleaded with Maldonado to take her to a

clinic, reassuring him that she would not turn him in. When Maldonado eventually

agreed to take her to a clinic, D.S., bleeding profusely from her wounds, got back

in the driver’s seat. As she drove, Maldonado continued to hold the knife so D.S.

could see it, first pointing the blade at her and then backward toward C.

      Maldonado ordered D.S. to “just drive.” D.S. realized that he was not taking

her to a clinic and ran a couple of red lights, which angered Maldonado. D.S.

continued to plead with him to help her get medical attention and assured him that

she would not tell anyone that he had injured her. Maldonado told her that he

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would drive her to a hospital and ordered her to pull the car into a parking lot

behind some warehouses near State Highway 288 in Pearland. There, Maldonado

attempted to discard the knives he used to attack D.S. First, he tried to wipe the

blood from the knives by scraping the blades against D.S.’s eyeglass case. As he

dropped them on the ground, though, Maldonado saw two trucks pull into the lot.

He quickly retrieved the knives, got into the driver’s seat, pulled the car out of the

lot, drove to the daycare behind the warehouses, and parked the car in an area

shielded by the daycare’s bus on one side and a boat on the other.

      As D.S. reached for the car door and glanced back at her son, Maldonado,

still fumbling with the knives, muttered that D.S. wouldn’t be able to step two feet

before he killed both her and her son. Maldonado also told D.S. that he had people

watching her family in Pasadena and that he could have them killed simply by

making a telephone call. Still in the car, Maldonado demanded that D.S. perform

oral sex on him, but a stab wound near her jaw made her unable to open her mouth.

Maldonado ordered D.S. to pull down her pants, then sexually assaulted her while

sticking his fingers into her knife wounds and pulling her toward him, which

caused her to lose more blood. D.S. tried to keep her son calm by patting his legs

while Maldonado was assaulting her.

      When Maldonado finished, he told D.S. to use her GPS to find a hospital

nearby. D.S., who by then had lost a significant amount of blood and was in a

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seriously weakened state, had trouble doing so. Eventually, Maldonado parked the

car at the Silverlake Mall in Pearland and called 911. He told the operator that

they had been robbed and his friend had been stabbed in the neck.

      Two patrol officers arrived shortly after receiving the call.      Officer R.

Gonzalez began attending to D.S. D.S. first told Gonzalez that she had been

robbed and stabbed, and Maldonado explained that D.S. had called him for help.

Then, seeing that Maldonado was holding C., D.S. whispered to Gonzalez to get C.

away from Maldonado, and she told him that Maldonado was her attacker.

Maldonado protested that he had not done anything, which further aroused the

officers’ suspicions. Deputy Humbird, who was training with Officer Gonzalez,

stayed with D.S. until the ambulance arrived while Officer Gonzalez detained

Maldonado. During the pat-down, Gonzalez discovered Maldonado had a bag of

marijuana in his sweater and booked him on a possession charge.

      During her investigation of the scene, Detective P. Newsome found blood all

over the inside of the car, including pools of coagulated blood in both front seats.

She also noticed a knife lying on the driver’s seat. Investigators found blood on

the outside of Maldonado’s clothes and on his undergarments.          DNA testing

identified it as D.S.’s blood.




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                                    Discussion

Standard of Review

      Maldonado challenges the trial court’s admission of evidence that he stabbed

D.S. in Harris County after it found that the stabbing was part of the same criminal

episode as the crimes charged in Brazoria County. “We review a trial court’s

decision to admit evidence over objection under an abuse-of-discretion standard

and will not reverse that decision absent a clear abuse of discretion.” McCarty v.

State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008) (citing Zuliani v. State, 97

S.W.3d 589, 595 (Tex. Crim. App. 2003). “The trial court abuses its discretion

when the decision lies outside the zone of reasonable disagreement.” Id. (citing

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

Analysis

      Same-transaction contextual evidence is admissible as an exception under

Rule 404(b) where such evidence is necessary to the jury’s understanding of the

instant offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). It

“results when an extraneous matter is so intertwined with the State’s proof of the

charged crime that avoiding reference to it would make the State’s case incomplete

or difficult to understand.” Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App.

2005); see Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting

Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). The purpose of

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admitting extraneous evidence as same-transaction contextual evidence is to put

the charged offense in context. Mayes v. State, 816 S.W.2d 79, 86–87 (Tex. Crim.

App. 1991); Camacho v. State, 864 S.W.2d 524. 532 (Tex. Crim. App. 1993);

Jones v. State, 962 S.W.2d 158, 166 (Tex. App.—Fort Worth 1998, no pet.).

“[E]vents do not occur in a vacuum, and the jury has a right to hear what happened

immediately” before and after the commission of the charged act so that it may

properly evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000). Same-transaction contextual offense evidence is admissible

only to the extent that it is necessary to the jury’s understanding of the charged

offense. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

      Whether the trial court could correctly admit evidence that Maldonado

stabbed D.S. in Harris County depends on the substantive elements of the charged

offenses that the State was required to prove in his Brazoria County case. A

person commits kidnapping if he “intentionally or knowingly abducts another

person with the intent to . . . (3) facilitate the commission of a felony or the flight

after the attempt or commission of a felony; (4) inflict bodily injury on him or

violate or abuse him sexually; [or] (5) terrorize him or a third person . . . .” TEX.

PENAL CODE ANN. § 20.04(a)(3), (4), (5) (West 2011). A person also commits

aggravated kidnapping if he “intentionally or knowingly abducts another person




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and uses or exhibits a deadly weapon during the commission of the offense.” Id.

§ 20.04(b).

      Without evidence that Maldonado used the knife on D.S. and continued to

threaten her with it, the State could not have adequately explained how D.S. and

her son ended up in Brazoria County with Maldonado in the car. The evidence

also sheds light on D.S.’s motivation for initially following Maldonado’s lead in

concealing the actual circumstances of the crime from the police and for failing to

immediately identify Maldonado as the perpetrator. Maldonado’s stabbing of D.S.

in Harris County was so intertwined with the incidents that followed in Brazoria

County that the jury’s understanding of those crimes would have been obscured

without that evidence. See Taylor v. State, 263 S.W.3d 304, 314 (Tex. App.—

Houston [1st Dist.] 2007), aff’d, 268 S.W.3d 571 (Tex. Crim. App. 2008).

      A person commits aggravated sexual assault if he intentionally or knowingly

causes the sexual organ of another person, without that person’s consent, to contact

or penetrate the mouth, anus, or sexual organ of another person, including the

actor, and by acts or words occurring in the presence of the victim threatens to

cause death, serious bodily injury, or kidnapping of any person, or uses or exhibits

a deadly weapon in the course of the same criminal episode. TEX. PENAL CODE

ANN. §§ 22.021(a)(1)(A)(iii), (a)(2)(A)(iii), (a)(2)(A)(iv).   For purposes of the

aggravated sexual assault statute, the “criminal episode” “begins when the attacker

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in any way restricts the victim’s freedom of movement and it ends with the final

release or escape of the victim from the attacker’s control.” Cruz v. State, 238

S.W.3d 389, 398 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see Quincy v.

State, 304 S.W.3d 489, 497 (Tex. App.—Amarillo 2009, no pet.) Maldonado

began restricting D.S.’s freedom of movement when he stabbed her repeatedly,

then forced her to drive while still holding her under the threat of the knife. He

manipulated her into continuing to drive by claiming that he would help her get to

a clinic or hospital to obtain medical treatment for the wounds he had inflicted.

The restriction did not end until the police officers arrived and D.S. was able to tell

them the truth about Maldonado’s attack and get her son to safety.

      The evidence that Maldonado stabbed D.S. in Harris County was also

necessary for the jury to decide whether the State had proved beyond a reasonable

doubt that the sexual assault occurred in Brazoria County and met the legal

definition of aggravated sexual assault. Maldonado testified in his own defense

that he had consensual sex with D.S. before he stabbed her. The complainant’s

testimony concerning the stabbing, as well as other evidence that the stabbing

occurred in Harris County before the assault—including the placement of D.S.’s

wounds and the physical evidence showing the amount and location of D.S.’s

blood found on Maldonado’s clothing—was critical to a complete understanding of




                                          10
the sequence and nature of events and whether Maldonado’s testimony cast any

reasonable doubt on the State’s proof.

      In addition to satisfying the requirements of Rule 404(b), extraneous

evidence must also satisfy the balancing test of Rule 403. TEX. R. EVID. 403;

Nguyen v. State, 177 S.W.3d 659, 668 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d). In our review, we defer to the trial court’s determination that the probative

value of the extraneous offense evidence outweighs its prejudicial effect. Id. at

667. “Generally, although a trial court must still perform a balancing test to see if

the same transaction contextual evidence’s probative value is substantially

outweighed by its prejudicial effect, the prejudicial nature of contextual evidence

rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s

comprehension of the whole criminal transaction.” Swarb v. State, 125 S.W.3d

672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); accord Quincy, 304

S.W.3d at 502. Here, the evidence that Maldonado stabbed D.S. in Harris County

proved part of the same criminal episode that included the aggravated sexual

assault and was also necessary to a complete understanding of the aggravated

kidnapping charges. We hold that the evidence of the Harris County stabbing was

not substantially outweighed by any danger of unfair prejudice.




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                                    Conclusion

      We hold that the trial court acted within its discretion in admitting the

evidence that Maldonado stabbed D.S. in Harris County before forcing her to

drive, at knifepoint, to Brazoria County, where he committed the offenses at issue

in this appeal. We therefore affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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