                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-12-00857-CR

                                      Charles D. WILLIAMS,
                                             Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011CR5580B
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 4, 2013

AFFIRMED

           Charles Williams was charged, as a habitual offender, with aggravated assault with a

deadly weapon. He pled not guilty, and was tried and convicted by a jury. He was then sentenced

by the trial court to life imprisonment. In one issue on appeal, Williams argues that evidence of a

prior extraneous unadjudicated offense (aggravated assault with a deadly weapon) was improperly

admitted in violation of Texas Rule of Evidence 403. We affirm the trial court’s judgment.
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                                          BACKGROUND

       The State’s evidence at trial showed that the shooting, which occurred on April 28, 2011,

was part of an on-going neighborhood gang-related dispute. The victim, Michael Whitley, who

was a member of the East Terrace Gangsters at the time, testified that on the occasion in question,

he was coming out of his apartment and saw a Jeep Cherokee drive by. According to Whitley, he

saw Williams riding in the backseat of the Jeep Cherokee. Whitley then got into his car, and as he

drove away, the Jeep Cherokee started chasing after his car. Whitley testified that he then saw

Williams shooting at him from the Jeep Cherokee. At a gas station, Whitley got out of his car and

started running. As he ran, he was shot in the ankle, leg, and back. As Whitley hid behind a

building, he saw the Jeep Cherokee in which Williams was riding leave in a hurry. Whitley testified

that he then asked someone at the gas station to take him back to his own neighborhood where he

waited for EMS to arrive. According to Whitley, although police officers arrived and asked him

questions, he did not initially tell them what happened because he wanted to “take care” of the

situation himself. However, he eventually decided he did not want to go to prison for retaliating

against Williams and hinted to an officer that Williams had shot him. Whitley testified that several

days after the shooting, he gave a written statement about the events of April 28, 2011. At trial,

Whitley also testified that Williams had been shot himself a few weeks before the night Whitley

was shot.

       The defense evidence focused on Williams’s physical condition due to his gunshot wound,

which had been inflicted a few weeks before the night Whitley was shot. The defense also focused

on the fact that at the time of the shooting, Williams was at home recuperating from his wounds

and attending a birthday party. Williams’s sister, Jacqueline Williams, testified that the day of the

shooting, April 28, 2011, was her birthday. According to Jacqueline, she spent all afternoon and

evening with Williams at his house celebrating her birthday and helping with his wound care. She
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testified that Williams had been shot on March 21, 2011, or March 22, 2011, and was released

from the hospital on April 2, 2011. Because Jacqueline is a certified nurse assistant, she went to

his house every day to help dress the wound in his back and to check on his colostomy bag.

Jacqueline testified that Williams never left the house that day because he was in a lot of pain and

was on bed rest.

       Also testifying for the defense was Claudia Gutierrez. She testified Williams was shot on

March 21, 2011, and after he was released from the hospital, she went to the house three times a

day to change his dressing. According to Gutierrez, Williams also had a colostomy bag, which his

wife would change for him. Gutierrez testified that she was at Williams’s house on the day of

shooting. He had difficulty moving around, and he never left the house.

       To rebut the evidence presented by the defense, the State called Cassihde Mobley to testify

about a shooting that occurred on April 24, 2011, four days before Whitley was shot. According

to Mobley, she was babysitting for a friend at an apartment complex. When her friend walked her

to her car at about 4:00 a.m., a burgundy Taurus drove by, and two of the three occupants of the

car began shooting. Mobley identified Williams as the driver of the Taurus. Mobley testified she

was shot in the ankle and the calf. Although the defense objected to Mobley’s testimony, the trial

court overruled the objection and allowed the evidence to be offered as proof of opportunity and

identity pursuant to Rule 404(b). The trial court also included an instruction in the court’s charge

instructing the jury that the extraneous offense evidence could only be considered for the purpose

of identity and to rebut a defensive theory.

                                               DISCUSSION

       On appeal, Williams argues that the trial court erred by admitting the extraneous offense

evidence over his Rule 403 objection. We review the trial court’s decision to admit evidence under



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an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). As

long as the trial court’s ruling is within the zone of reasonable disagreement, we will affirm. Id.

       Rule of Evidence 401 provides that evidence is relevant if it makes the existence of a fact

that is of consequence to the determination of the action more probable than it would be without

the evidence. TEX. R. EVID. 401. However, even relevant evidence may not be admissible for every

purpose. Moses, 105 S.W.3d at 626. Extraneous offense evidence is normally not admissible

because our justice system recognizes that a defendant should only be tried for the charged crime

and not for his propensity to commit crimes. Id. However, Rule 404(b) allows evidence of

extraneous offenses if the evidence has relevance apart from character conformity. Id.; see TEX.

R. EVID. 404(b). Thus, evidence of other crimes, wrongs or acts may be admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” TEX. R. EVID. 404(b); see Moses, 105 S.W.3d at 626. Rebuttal of a defensive theory is

also one of the permissible purposes for which relevant evidence may be admitted under Rule

404(b). Moses, 105 S.W.3d at 626. But, even if the evidence is relevant under Rule 401 and the

purpose for which it is being offered is permissible under Rule 404(b), the evidence may still be

excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair

prejudice. Id.; see TEX. R. EVID. 403. Thus, even though evidence may be admissible under Rule

404(b), the trial court may exercise its discretion to exclude the evidence under Rule 403 if it

determines that the probative value is substantially outweighed by the danger of unfair prejudice.

Moses, 105 S.W.3d at 626. When the trial court exercises its discretion not to exclude the evidence

by finding that the probative value of the evidence is not outweighed by the danger of unfair

prejudice, we give deference to this decision. Id. at 627. We cannot substitute our own decision

for that of the trial court. Id. Therefore, in determining whether the probative value of the evidence

is substantially outweighed by the danger of unfair prejudice, we cannot conduct a de novo review
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and “should reverse the judgment of the trial court rarely and only after clear abuse of discretion.”

Id. (quotations omitted).

       We note that pursuant to Rule 403, it is not mere prejudice that will render the evidence

inadmissible, but rather the admission of the evidence must be unfairly prejudicial. See TEX. R.

EVID. 403. Unfair prejudice “refers to a tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.” Gigliobianco v. State, 210 S.W.3d 637, 641

(Tex. Crim. App. 2006). When conducting a Rule 403 analysis, courts 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 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. Id. at 641-42.

It is the objecting party’s burden to show that the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. Poole v. State, 974 S.W.2d 892, 897 (Tex. App.—

Austin 1998, pet. ref’d).

       Williams’s complaint pertains to the trial court’s admission of Mobley’s testimony

showing that Williams was the driver of a vehicle involved in a drive-by shooting four days before

Whitley was shot. Williams contends the trial court abused its discretion because, under the Rule

403 balancing test, the danger of unfair prejudice substantially outweighed the probative value of

the evidence. Specifically, he argues that (1) the degree of relevance was lacking, (2) the jury was

misled into losing sight of the issue they were called upon to decide, (3) presenting the evidence

took an excessive amount of time, and (4) the prosecution did not need the testimony. We disagree.



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          We find that the trial court did not err in finding the evidence probative. Williams’s entire

defense rested on evidence showing that (1) he never left his house on the day and evening of the

shooting and (2) he was recuperating from a gunshot wound, which made it difficult for him to

move around, and required dressing changes and tending to a colostomy bag. His defense was that

he could not be the person who shot Whitley because he was at home during the time of the

shooting, and he was recuperating from an injury. Thus, he argued he had no opportunity to shoot

Whitley. Therefore, the testimony Williams complains about (Mobley’s testimony that four days

before Whitley was shot, she witnessed Williams driving a car that was involved in a drive-by

shooting) was probative to show opportunity and identity, and to rebut Williams’s defensive

theory.

          Further, we find there was nothing confusing or misleading about the evidence that would

cause the jury to lose sight of the issue before them, and the evidence did not take an excessive

amount of time. 1 Nor was the evidence cumulative of other evidence. Moreover, the trial court’s

limiting instruction helped ensure the jury would not be confused by the extraneous offense

evidence or use it for an improper purpose. See Burton v. State, 230 S.W.3d 846, 851 (Tex. App.—

Houston [14th Dist.] 2007, no pet.).

          Accordingly, we hold the trial court did not abuse its discretion in admitting the extraneous

offense evidence and affirm the judgment of the trial court.



                                                         Karen Angelini, Justice

DO NOT PUBLISH




1
  Although Williams argues that one entire volume of testimony related to the extraneous offense evidence, Mobley’s
testimony only amounted to a portion of the volume.

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