                                   NO. 07-05-0413-CR

                               IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                  NOVEMBER 28, 2007
                            ______________________________

                            AURELIO R. MARANDA, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY;

              NO. 0954664D; HONORABLE EVERETT YOUNG, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       A jury convicted Aurelio Maranda of aggravated robbery and sentenced him to thirty

years imprisonment. On appeal, he presents four issues contending the court erred in

admitting evidence of extraneous bad acts and by admitting a knife allegedly used in the

robbery. Finding the trial court did not abuse its discretion in admitting the challenged

evidence, we will affirm.
                                       Background


       Appellant regularly attempted to purchase Valucraft automobile carburetor cleaner

(“Valucraft”) at an AutoZone automotive parts store in Fort Worth. Because of Valucraft’s

potential use as an inhaled intoxicant, the store maintained a policy requiring purchasers

present identification at the time of purchase.


       On the day of his arrest, appellant returned to the AutoZone store. Assistant

manager Juan Galeazzi observed appellant leave the store with two cans of Valucraft in

his pockets. Appellant had not paid for the cans of Valucraft. Galeazzi followed appellant

outside the store where Galeazzi questioned him. Appellant cursed, exhibited the blade

of a pocket knife, and threatened to kill Galeazzi. Store manager Ray Perez and employee

Richard Cantu also were present. After threatening Galeazzi, appellant threw two dollars

at him and ran from the scene. The AutoZone retail price of Valucraft was $1.29 per can.

AutoZone employees gave chase but appellant escaped as a passenger in an awaiting

SUV. Cantu obtained the vehicle’s license number, which another employee reported to

police by cell phone.


       Fort Worth Police Officer Mark Russell responded to the call and interviewed

Galeazzi about the offense. About two hours later, Fort Worth Police Officer Robert Greer,

on routine patrol, detained appellant along with another adult and a juvenile on suspicion

of public intoxication by inhaling a chemical. A pat-down search of appellant by Greer

produced a pocket knife.     Because the juvenile and adult suspects required police

processing at different locations, Greer called for assistance and Russell responded. On


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arrival, Russell noticed appellant fit the description of the perpetrator of the AutoZone

robbery. Accordingly, he transported appellant and the knife back to the AutoZone store

where Galeazzi identified appellant as the perpetrator and the knife as the instrument with

which appellant threatened him.


         Appellant was indicted and tried for aggravated robbery, enhanced by a prior felony

conviction. A jury found him guilty of the charged offense and assessed punishment at

thirty years in the Texas Department of Corrections Institutional Division with a fine of

$1,000. Appellant timely appealed.


                                         Discussion


Issues


         Appellant presents four issues on appeal, asking: (1) whether the trial court abused

its discretion by admitting “extraneous bad act evidence that two hours after the alleged

robbery the [a]ppellant was arrested for public intoxication caused by inhaling carburetor

cleaner”; (2) whether the “trial court abused its discretion by admitting evidence about store

policy for selling carburetor cleaner because it was used illegally as an intoxicant”; (3)

whether the trial court “erred by allowing the hearsay statement that the complainant

recognized a knife shown by a police officer as the actual weapon that was used”; and (4)

whether “the trial court abused its discretion by admitting a knife that was not

authenticated.”




                                              3
Issues 1 and 2: Rules 404(b), 401, and 403


       In his first issue appellant contends the court erroneously admitted evidence of

appellant’s extraneous conduct. By his second issue he asserts harm from admission of

the AutoZone rationale for requiring identification to purchase Valucraft.1 Appellant’s brief

discusses issues one and two together, and we will likewise address them jointly.


       Relevance of Subsequent Conduct and Events


       We first turn to the admissibility of evidence of events subsequent to the robbery

and the store’s identification policy.


       We review the trial court's evidentiary rulings under an abuse of discretion standard

meaning we will uphold the trial court's decision if it is within "the zone of reasonable

disagreement." Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App. 1990) (op.

on reh'g).


       The general rule is that evidence of other crimes, wrongs, or acts is inadmissible to

prove a person's character, but evidence of other crimes, wrongs, or acts is admissible for



       1
         At a hearing outside the presence of the jury, in the course of objecting to Galeazzi
testifying about the use of Valucraft as an inhaled intoxicant, appellant’s counsel stated he
did not oppose Galeazzi testifying about the store’s policy for purchasing Valucraft. The
State argues that, by this statement, appellant forfeited the complaint urged in his second
issue. We disagree. The statement in question was couched within an objection to
Galeazzi testifying about matters of which he lacked personal knowledge. The objection
followed questioning of Galeazzi about the unlawful use of Valucraft as an inhaled
intoxicant. Appellant complained not merely of the store’s policy in evidence, but of the
policy as the means of admitting evidence of the improper use of Valucraft as an inhaled
intoxicant.

                                              4
other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Tex. R. Evid. 404(b).


       In the face of a Rule 404(b) objection, the proponent of the evidence must persuade

the trial court that the evidence has relevance apart from character conformity; that is, it

tends to establish some elemental fact, such as intent; that it tends to establish some

evidentiary fact, such as motive, opportunity, or preparation leading inferentially to an

elemental fact; or that it rebuts a defensive theory by showing the absence of mistake or

accident. Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1990). Relevant

evidence is evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence. Tex. R. Evid. 401. Relevant evidence is presumed

admissible. Erazo v. State, 144 S.W.3d 487, 499 (Tex.Crim.App. 2004).


       Greer detained appellant and two others for suspicion of public intoxication about

two hours after the AutoZone robbery at a location approximately one mile from the

robbery site. The detainees smelled of a chemical and appeared intoxicated to the officer.

Greer noticed a can of carburetor cleaner nearby. One of the detainees told Greer the soft

drink bottle they used as an inhaler contained carburetor cleaner. The officer testified that

people inhale carburetor cleaner to become intoxicated and such inhaling or “huffing” is

addictive. Also according to the testimony, the AutoZone store maintained a policy

requiring those purchasing Valucraft to prove an age of at least eighteen by proper

identification.



                                             5
       The State contends this evidence allowed it to prove motive under a fact pattern that

might otherwise create confusion for the jury. That is, why would a person commit

aggravated robbery to obtain two cans of carburetor cleaner collectively valued at less than

three dollars? The State’s argument that a party’s appetite for an addictive substance is

evidence of motive for an offense is not of first impression. In Ladd v. State, 3 S.W.3d

547, 568 (Tex.Crim.App. 1999) the court found no abuse of discretion in admitting

evidence that the accused used cocaine on the night of a murder because the trial court

could reasonably have concluded that this conduct was evidence of the accused’s motive

for murder, that is, to obtain money for cocaine. Id.


       In the present matter, we find appellant’s use of an inhaled intoxicant, two hours

after the AutoZone robbery, relevant to motive. Facts such as his previous unsuccessful

attempts to purchase Valucraft and his failure to pay for the product on this occasion even

though he possessed sufficient funds to buy at least one can support an inference that

appellant was motivated to acquire the product from Autozone by criminal means because

he knew he would be unable to buy it.2 Evidence that he engaged in “huffing” carburetor

cleaner shortly after the robbery further served to explain appellant’s willingness to commit

aggravated robbery for an item possessing such small monetary value. The jury could

have inferred that he was motivated to perform such an extreme act for the sake of

becoming intoxicated.



       2
         Galeazzi testified to the store’s refusal to sell Valucraft to appellant in the past, and
testified to the store’s policy requiring identification for its purchase. His testimony does
not make clear whether the store had refused to sell Valucraft to appellant because he
lacked identification or for other reasons.

                                                6
       Further, through cross-examination of the State’s witnesses appellant interjected the

theory that he attempted to purchase one can of carburetor cleaner and tendered more

than the purchase price which Galeazzi refused. In light of Galeazzi’s testimony of the

store’s efforts to avoid sale of Valucraft for use as an inhalant, evidence of appellant’s

intended use of the carburetor cleaner was relevant as rebuttal of his effort to characterize

his actions as a legitimate attempt to purchase the product.


       From our discussion of the robbery and the events following, we find the evidence

in question was relevant as same transaction contextual evidence. Extraneous offenses

may be admissible as same transaction contextual evidence when "several crimes are

intermixed, or blended with one another, or connected so that they form an indivisible

criminal transaction." Prible v. State, 175 S.W.3d 724, 731-32 (Tex.Crim.App 2005), cert.

denied, 546 U.S. 962, 126 S. Ct. 481, 163 L. Ed. 2d 367 (2005) (quoting Rogers v. State,

853 S.W.2d 29, 33 (Tex.Crim.App. 1993)). This type of evidence 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 difficult to understand or incomplete.

Prible, 175 S.W.3d 732. Under such circumstances, "the jury is entitled to know all

relevant surrounding facts and circumstances of the charged offense; an offense is not

tried in a vacuum." Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986).


       Here, the State’s case would have become disjointed had its presentation been

limited to the circumstances immediately surrounding the robbery or had the connection




                                             7
between appellant’s subsequent activities and the carburetor cleaner taken in the

AutoZone robbery been redacted from Russell’s testimony.


       We conclude the trial court, without an abuse of its discretion, could have found the

evidence of events following the robbery that culminated in appellant’s arrest and

identification, relevant to motive, as rebuttal proof, or contextual transactional proof.


       Rule 403: Is Relevant Evidence Nevertheless Inadmissible?


       In evaluating Rule 403 issues, courts begin with the presumption the probative value

is not substantially outweighed by other factors. Tex. R. Evid. 403; Williams v. State, 958

S.W.2d 186, 196 (Tex.Crim.App. 1997).


       The Court of Criminal Appeals has identified four factors a court should consider in

performing the balancing examination Rule 403 requires. They are (1) the probative value

of the evidence; (2) the potential the other offense evidence has to impress the jury in

some irrational but nevertheless indelible way; (3) the time the proponent needed to

develop the evidence, during which the jury will be distracted from consideration of the

indicted offense; (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d

487, 489 (Tex.Crim.App. 2004) (citing Montgomery, 810 S.W.2d at 389-90).


       The evidence of appellant’s activity during the two hours following the AutoZone

robbery, we have concluded, was relevant to his motive for aggravated robbery, to rebut

his defense of a legitimate transaction, or as same transaction, contextual evidence. While

the evidence appellant inhaled carburetor cleaner for intoxication is relevant on these


                                              8
grounds we find little if any likelihood that it impressed the jury in an irrational but indelible

way. In other words, a reasonable juror would not have been persuaded to wrongly convict

appellant for aggravated robbery based on evidence of his inhaling a chemical, a Class B

misdemeanor. Tex. Health & Safety Code Ann. § 485.031 (Vernon 2003). About ten

percent of the reporter’s record concerns the State’s development of inhaling and

appellant’s conduct following the robbery. This presentation consumed a minimal amount

of trial time and could not have significantly distracted the jury, particularly given the

notable intertwining of facts surrounding the robbery and appellant’s subsequent conduct.

Finally, and as noted, the State needed evidence of appellant’s subsequent activity to bring

cohesion to what would otherwise have been an incomplete and likely confusing factual

narrative.


       Finding no abuse of discretion in the admission of the evidence, we overrule

appellant’s first and second issues.


Issue 3: Proof of the Robbery Weapon


       By his third issue, appellant contends the trial court allowed a hearsay statement to

prove the knife offered at trial was the weapon used to threaten Galeazzi in the robbery.


       The essence of appellant’s hearsay complaint is that Russell was allowed to testify

that when he returned to the AutoZone store Galeazzi identified the knife Russell received

from Greer as the offense weapon. The State counters that the statement comes within

the excited utterance exception to the hearsay rule, Tex. R. Evid. 803(2), or appellant

forfeited a hearsay objection when he elicited the same testimony on cross-examination.

                                                9
       Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R.

Evid. 801(d). The admissibility of hearsay evidence is a question for the trial court to

resolve and we review its determination under an abuse of discretion standard. Coffin v.

State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). Improper admission of evidence does

not constitute reversible error if the same facts are proved by other, properly admitted

evidence. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986).


       We initially review the other trial testimony regarding the knife. Galeazzi testified

that during the robbery appellant pointed an open knife at him and said he would kill him.

Appellant fled the scene but was detained a couple of hours later by Greer on suspicion

of public intoxication. Greer’s search of appellant produced a pocket knife, which he

placed on the hood of his patrol car. Russell responded to Greer’s request for assistance

with appellant and the other public intoxication suspects. Believing appellant fit the

description of the suspect in the AutoZone robbery, Russell transported appellant and the

knife left on the hood of Greer’s patrol car back to the AutoZone store. Galeazzi testified

that after he identified appellant in the patrol car as the robbery perpetrator, the officer, that

is, Russell, showed him a knife. Galeazzi further testified that this was the same knife

appellant used to threaten him. Russell testified that he retained custody of the knife he

collected, placed his initials and identification number on it, and delivered it to the police

department property room. The evidence was “booked in” later that day. Russell brought

the envelope from the property room containing the knife to trial for his testimony and

admission. According to Russell, the knife he produced at trial was the one he collected


                                               10
on the date of the AutoZone robbery. On the morning of trial, Greer also recognized the

knife in question.


       It is axiomatic that Russell’s testimony of what Galeazzi told him about the knife was

hearsay. But it is unnecessary to consider whether the statement comes within the excited

utterance exception to the hearsay rule or whether appellant forfeited the hearsay objection

by eliciting the same testimony on cross-examination. As demonstrated by the facts we

have recited, the knife offered at trial was identified as the offense weapon through other

testimony of Russell and Galeazzi without objection. The error, if any, of the trial court in

allowing the challenged testimony of Russell was harmless. See Brooks v. State, 990

S.W.2d 278, 287 (Tex.Crim.App. 1999) (any error in the admission of hearsay testimony

was harmless in light of other properly admitted evidence proving same fact).


       We overrule appellant’s third issue.


Issue 4: Authentication of the Robbery Weapon


       In his fourth issue, appellant claims the knife the State offered at trial was

erroneously admitted because it was not authenticated as the knife used for commission

of the offense. Based on appellant’s trial objection we interpret his complaint to be that a

link in the chain of custody authenticating the knife is missing because Russell offered

hearsay testimony that Galeazzi identified the robbery weapon.


       Authentication of physical evidence requires identification by "evidence sufficient to

support a finding that the matter in question is what its proponent claims." Tex. R. Evid.


                                              11
901(a). Rule 901 requires only a showing satisfying the trial court that the matter in

question is what its proponent claims. Silva v. State, 989 S.W.2d 64, 67-8 (Tex.App.–San

Antonio 1998, pet. ref'd). Evidence should be admitted if the trial court finds that a

reasonable juror could find that the evidence was authenticated. Pondexter v. State, 942

S.W.2d 577, 586 (Tex.Crim.App. 1996). Proof of the beginning and end of the chain of

custody will support admission of an object barring any evidence of tampering or alteration.

Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951, 111

S. Ct. 371, 112 L. Ed. 2d 333 (1990). Without evidence of tampering, most questions

concerning care and custody of an item go to the weight attached, not the admissibility, of

the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997) (addressing

custody of controlled substance). The trial court has discretion to determine the sufficiency

of an evidentiary predicate. Smith v. State, 683 S.W.2d 393, 405 (Tex.Crim.App. 1984).

Once the proponent of evidence meets the threshold requirement of presenting testimony

that the evidence is what the proponent says it is, the weight given the evidence and

related testimony is within the province of the trier of fact. See Davis v. State, 922 S.W.2d

8, 11-12 (Tex.App.–Houston [1st Dist.] 1996, no pet.) .


       Here, direct testimony established that Russell returned to the AutoZone store with

the knife Greer found in appellant’s possession. At the store, Galeazzi positively identified

the knife as the weapon with which appellant threatened him. On cross-examination by

appellant, Russell agreed that when he returned the knife to the AutoZone store Galeazzi

was the only person able to identify it. Russell maintained custody of the knife until later

that day when he tagged it and booked it into the evidence room. There it remained in an


                                             12
envelope until the morning of trial. Greer also recognized the knife. Under such facts, the

court did not abuse its discretion by admitting the knife as the offense weapon.


      We overrule appellant’s fourth issue.


                                       Conclusion


      Having overruled appellant’s four issues, we affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




Publish.




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