                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-11-00290-CR


                         RAYMOND NIETO, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 222nd District Court
                                 Deaf Smith County, Texas
              Trial Court No. CR-101-108, Honorable Roland D. Saul, Presiding

                                       July 3, 2013

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.



      Appellant Raymond Nieto, Jr. appeals from his jury conviction of the felony

offense of aggravated robbery and the resulting sentence of forty years of

imprisonment.    Through one issue, appellant contends the trial court abused its

discretion in admitting evidence of an extraneous felony offense. We will affirm.
                                       Background


       Appellant was charged by indictment with aggravated robbery. 1            The State

offered the testimony of several police officers to establish appellant, along with three

other people, took a Jeep from the victim. In the course of the theft, which occurred in

Hereford, Texas, one of them hit the victim on the head with a beer bottle, injuring him.

Appellant maintained he never drove the victim’s Jeep, did not hit the victim with the

bottle, and was merely a passenger in the car with his friends.


       Evidence was also admitted showing appellant and his three friends stole a white

Chevrolet truck in Lubbock later the same afternoon. Appellant complains on appeal of

the admission of evidence of that theft, during the guilt-innocence phase of trial.


                                         Analysis


       Evidence showed that appellant and his three friends committed the robbery in

Hereford around 12:30 or 1:00 in the afternoon, and that they abandoned the Jeep in

Lubbock about 5:30 that afternoon after the Jeep had run out of gas. The four left the

Jeep at a convenience store and took the Chevrolet truck from the same store. They

returned to Hereford in the truck, where a security camera at a Hereford convenience

store recorded their presence later that day. Appellant objected to the admission of any

evidence of their theft of the Chevrolet truck.      He asserted several bases for his

objection, including Rules of Evidence 404(b) and 403. The parties argued the issue at

length. The State argued the evidence was admissible under several theories of law.



       1
           Tex. Penal Code Ann. § 29.03 (West 2011).


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      After reviewing case law and hearing argument, the trial court permitted the

admission of evidence of the circumstances surrounding appellant’s charge for

“unauthorized use of a motor vehicle (theft of a motor vehicle),” 2 the Chevrolet truck,

finding it to be “same transaction contextual evidence” with the evidence of the Hereford

robbery, and finding it admissible to show intent, knowledge and motive under Rule

404(b). The court also found the evidence admissible under section 31.03(c)(1) 3 of the

Penal Code. Because we find the admissibility of the evidence under Rules 404(b) and

403 is dispositive of appellant’s issue on appeal, we do not address the other possible

bases for its admission.


Rule 404(b) provides:


      Evidence of other crimes, wrongs or acts is not admissible to prove the
      character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident, provided that upon timely request by the accused in a
      criminal case, reasonable notice is given in advance of trial of intent to
      introduce in the State's case-in-chief such evidence other than that arising
      in the same transaction. Tex. R. Evid. 404(b).
      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. 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


      2
          Tex. Penal Code Ann. § 31.07 (West 2012).
      3
          Tex. Penal Code Ann. § 31.03(c)(1) (West 2012).


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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.

These factors may blend together in practice. Newton v. State, 301 S.W.3d 315, 319

(Tex App.—Waco 2009, pet. ref'd) (quoting Gigliobianco v. State, 210 S.W.3d 637, 641-

42 (Tex.Crim.App. 2006) (footnote omitted)).


       We review the trial court's determination under Rules 404(b) and 403 for an

abuse of discretion. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Lane

v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996).


       The theft of the vehicle in Lubbock was accomplished by the same four

individuals who, hours before, robbed the victim in Hereford of his Jeep. The nature

and extent of appellant’s involvement in the Hereford robbery were placed at issue in

trial of that offense. Appellant emphasizes on appeal that robbery is an assaultive

offense. See Jones v. State, 323 S.W.3d 885, 889 (Tex.Crim.App. 2010); Garfias v.

State, 381 S.W.3d 626, 631 (Tex.App.—Fort Worth 2012, pet. ref’d) (the gravamen of

robbery offenses is the defendant’s assaultive conduct). While that may be true, the

State nonetheless was required to prove appellant acted in Hereford in the course of

committing theft and with an intent to obtain or maintain control of the victim’s property.

Tex. Penal Code Ann. §§ 29.02, 29.03 (West 2011). We see no abuse of discretion in

the trial court’s conclusion that appellant’s involvement in the later theft in Lubbock was

relevant evidence of the intent with which he participated in the events in Hereford.

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That appellant was charged in another vehicle theft occurring the same day also served

to rebut his defensive theory that he was merely along for the ride with his friends. See

Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003) (rebuttal of a defensive

theory is one of permissible purposes for which relevant evidence may be admitted

under Rule 404(b)).


       Turning to the application of Rule 403, we note the similarity of the Lubbock

offense to that for which appellant was on trial here weighs in favor of admissibility of

the extraneous offense. The evidence required to prove the extraneous offense

consisted of two witnesses, the store clerk and the owner of the Chevrolet truck. The

short time it took to prove the extraneous offense also weighs in favor of its

admissibility. Third, the State needed evidence of the extraneous offense to prove

appellant’s intent in committing the aggravated robbery because, as noted, appellant

minimized his involvement with the Jeep. He contested the State’s evidence throughout

trial, asserting he was only present in the vehicle with his friends. The extraneous

offense evidence tended to show appellant’s intent at the time the Hereford victim was

hit with a beer bottle was more than an intent to commit an assaultive offense. This also

weighs in favor of admitting evidence of the extraneous offense. Finally, the extraneous

offense evidence had little potential to confuse, distract or suggest to the jury a decision

on an irrational basis. The court’s charge to the jury included a limiting instruction to the

jury that it could not consider extraneous offenses for any purpose other than in

determining the intent, motive, or knowledge of appellant in connection with the charged

offense.   We generally presume the jury follows the trial court's instructions in the

manner presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998).


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         Because the trial court reasonably could have found the extraneous offense

evidence admissible under Rules 404(b) and 403, it did not abuse its discretion by

admitting it. We overrule appellant’s sole issue and affirm the judgment of the trial

court.




                                              James T. Campbell
                                                  Justice


Do not publish.




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