                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-11-00845-CR

                                          Diego IBARRA,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008CR7150A
                           Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 17, 2013

AFFIRMED

           Diego Ibarra appeals his conviction for murder, arguing that the trial court erroneously

admitted extraneous offense evidence in violation of Texas Rules of Evidence 404(b) and 403.

We affirm the judgment of the trial court.

                                            BACKGROUND

The State’s Case

           On the night of May 27, 2008, Eduardo Lopez was inside his house at 313 Aransas

Avenue when Ibarra came to his door to ask him for bullets. Lopez kept a 9 millimeter gun
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locked up under his house and ammunition hidden in the backyard. Lopez gave Ibarra four or

five 9 millimeter bullets. Ibarra introduced Lopez to another man, whom he identified as his

cousin. While the three men were standing in front of Lopez’s house, a maroon convertible

Mustang seating three African Americans—two men and a woman—drove by. At the same

time, Lopez heard a shot fired from behind him. The only person holding a gun was Ibarra.

Lopez told Ibarra and his cousin to leave, and they left in a green Mustang. Lopez did not see

who was driving when the pair left, but testified that Ibarra was driving the green Mustang when

they arrived at Lopez’s house. Within minutes of Ibarra leaving, Lopez heard six or seven

gunshots in the vicinity. Shortly thereafter, Lopez heard a crash; he next saw the green Mustang

across the street, with white paint transfer down its side and the mirror hanging down.

       The driver of the maroon convertible Mustang was Simona McCalister. Simona testified

that the car belonged to her brother, John, who was sitting in the passenger seat. Their friend,

Earl Freeland, was sitting in the backseat. Simona was driving up Aransas Avenue when she

heard a gunshot. The shot came from the direction of a house where there appeared to be a party

underway, and there were a number of people in the front yard. As Simona drove by the house

and heard the shot, she saw Ibarra standing with his head down and a pistol in his hand. She saw

another man run up to Ibarra and say, “No, no.” Simona stated that Ibarra was “looking at us

like he . . . hated us or something.”

       Simona wanted to alert the police, but first drove Earl by his aunt’s or grandmother’s

house on Cuney Way so that he could hide some drugs he was carrying. On the way back,

Simona drove down Pine Street until she reached Aransas Avenue where she heard a whistle.

She drove a block further up the street and stopped at the intersection of Denver and Pine Street.

Within seconds, she saw a green Mustang speeding towards her. Earl initially raised up out of

the backseat to acknowledge the other car, thinking that he recognized the car as belonging to
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someone he knew. When Earl saw a gun, however, he slid back down and yelled, “Duck, duck!”

The green Mustang pulled up alongside Simona, so that the drivers were side by side but facing

opposite directions. Simona saw the driver of the green Mustang, with his left hand on the

steering wheel, reach down in his lap and pull out a gun that he began shooting with his right

hand. She slid down in her seat and tried to drive off. She heard between eight and ten shots

fired. Simona heard Earl screaming that he had been shot. She did not hear her brother, John,

say anything, and when she turned to look at him he was bleeding from “front to back.” John

McCalister died as a result of a gunshot wound to his head.

       Simona sped away and stopped when a police car appeared behind her with its

emergency lights flashing. Simona tried to tell the officer that John and Earl had been shot, but

due to the confusion surrounding the two Mustangs, she and Earl were initially placed in

handcuffs. She was questioned and placed in the back of a police car, then driven to the house

where she had heard the first gunshot. After giving a statement at police headquarters, Simona

was taken to University Hospital to identify the shooter. The man she was asked to identify

appeared drugged or intoxicated and his face was swollen and eyes shut; her identification of

Ibarra was thus tentative because earlier in the night he did not look like he was on drugs, but

that he “was just out to get somebody.” After viewing photographs of Ibarra, Simona thought

Ibarra more closely resembled the person who she had seen shooting at her. Simona then

returned to the police station and made a positive identification of the second suspect, who was

later identified to her as Jordan Medina.

       Earl similarly testified that the green Mustang pulled up alongside the car he was riding

in with the McCalisters. Earl recalled the shooter looking him in the eye before pulling out the

gun; the shooter acted “like we had problems, . . . [l]ike we had [a] beef or something.” Earl was



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shot twice in the back and taken to the hospital. At the hospital, Earl identified Ibarra as the

driver of the green Mustang and the shooter.

Appellant’s Defense

       Ibarra testified in support of his defense of duress. Ibarra did not deny shooting at the

maroon Mustang or that his shots resulted in the death of John McCalister and injuries to Earl.

Ibarra explained, however, that an individual by the name of “Chino” forced him to shoot. Ibarra

claimed that he and Chino were in front of Lopez’s home on Aransas Avenue when the maroon

Mustang drove by, with its occupants throwing gang signs. Chino fired the shot that Simona

recalled first hearing.   Immediately afterward, Chino ordered Ibarra to get into the green

Mustang, pointing a gun at him all the while. Fearing for his life, Ibarra followed Chino’s orders

and drove off following the maroon Mustang. Chino sat in the front passenger seat and Jordan

Medina sat in the back, along with another unnamed passenger. As Ibarra approached the

intersection of Denver and South Pine Street, he saw the maroon Mustang on his left. As his car

and the maroon Mustang reached a point where they were side by side, Chino tried to aim his

gun to the left but could not, so he told Ibarra to shoot. Ibarra felt Chino press a gun against his

ribs. Ibarra knew that if he did not shoot at the maroon Mustang, Chino would shoot him. Ibarra

stopped shooting when he no longer felt Chino’s gun against his ribs. Chino became upset when

Ibarra stopped shooting, and aimed the gun at him. Ibarra covered his head with his hands, and

Chino shot Ibarra’s right hand. Ibarra then blacked out, and Chino ran off. Chino and the

unnamed passenger were never apprehended by police in connection with the incident.

State’s Proffer of Extraneous Offense and the Trial Court’s Ruling and Limiting Instruction

       The State argued that Ibarra’s claim of duress during his direct testimony opened the door

to the introduction of extraneous offense evidence related to an aggravated robbery Ibarra was

accused of committing less than an hour before the murder. The trial court had previously
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severed the aggravated robbery and murder charges, and had refused to allow the State to

mention the extraneous offense. After Ibarra testified, the trial court changed course, stating,

“Because now Mr. Ibarra has indicated that he did this under duress. And in saying that, that

suggests that this was a one[-]time incident that he would not have done but for the actions of

Felix a/k/a Chino. And I think the State gets the opportunity to rebut that fact.” Prior to the

State’s cross-examination of Ibarra regarding the aggravated robbery, the trial court orally gave

the jury the following limiting instruction: 1

           You are instructed that if there is any testimony before you in this case regarding
           the defendant’s having committed offenses, other than the offense alleged against
           him in the indictment in this case, you cannot consider said testimony for any
           purpose unless you find and believe beyond a reasonable doubt that the defendant
           committed such other offenses, if any were committed. And even then you may
           only consider the same to rebut a defensive theory in passing on the credibility of
           the defendant as a witness on his own behalf and the weight to be given to his
           testimony. And in determining whether there is motive or intent on the part of the
           defendant, if any, in connection with the offense alleged against him in the
           indictment in this case and for no other purpose.

Evidence of Extraneous Aggravated Robbery

           On cross-examination, Ibarra testified that about 45 minutes to an hour before the

shooting that resulted in McCalister’s death, he and Jordan Medina robbed a woman at gunpoint.

Ibarra was driving his girlfriend’s green Mustang, and Medina was sitting in the passenger seat.

Ibarra pulled up alongside another car at a stop sign. Medina approached the car, carrying

Ibarra’s 9 millimeter gun, and demanded money. Ibarra claimed he did not know that Medina

planned to rob the occupants of the car, further stating, “But when I seen him do it, and he came

back to the car, he said they didn’t have anything. So I said, Well, just get - - get whatever they

got. Get whatever they got. And then they gave him - - they gave him - - I don’t know who was

in the car. They gave him some - - some earrings, I think.”


1
    A similar limiting instruction was given in the court’s charge to the jury.

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       After the defense rested, the State called Latoya Anderson as a rebuttal witness.

Anderson, who is African American, testified that she was driving a silver Dodge Neon on the

night of May 27, 2008 when a green Mustang pulled up alongside her. With the window rolled

down, the passenger of the Mustang pointed a gun and told her to pull over. The passenger then

exited the Mustang, walked to Anderson’s window, pointed the gun at her, and demanded cash.

Anderson, whose mother, two sisters, and young niece were also in the car, begged the man not

to shoot. Anderson told him she did not have any money. The man returned to the Mustang to

talk with the driver, then went back to Anderson and asked whether she had any valuable

possessions. Anderson gave the man her gold earrings. The man eventually motioned for

Anderson to drive off. Soon after, Anderson contacted police, and she later went to University

Hospital where she positively identified Ibarra as the driver of the Mustang. At the police

station, Anderson positively identified Medina as the man who held the gun.

       The jury convicted Ibarra of murder, and the trial court sentenced him to sixty years’

imprisonment.

                                          DISCUSSION

       On appeal, Ibarra argues the trial court erred in admitting the extraneous offense evidence

in violation of Texas Rules of Evidence 404(b) and 403. TEX. R. EVID. 404(b), 403.

Extraneous Offense Evidence

       Under the Texas Rules of Evidence, 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.”

TEX. R. EVID. 404(b); De La Paz v. State, 279 S.W.3d 336, 342 (Tex. Crim. App. 2009). Such

evidence may, however, “be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” TEX. R. EVID.

404(b). The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively
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exhaustive. De La Paz, 279 S.W.3d at 343; Poindexter v. State, 942 S.W.2d 577, 583–84 (Tex.

Crim. App. 1996). “Rule 404(b) is a rule of inclusion rather than exclusion.” De La Paz, 279

S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). The rule

excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad

character and hence conduct in conformity with that bad character. De La Paz, 279 S.W.3d at

343 (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). The proponent of

uncharged misconduct evidence must be able to explain to the trial court, and to the opponent,

the logical and legal rationales that support its admission on a basis other than “bad character” or

propensity purpose. De La Paz, 279 S.W.3d at 343.

       One well-established rationale for admitting evidence of uncharged misconduct is to

rebut a defensive issue that negates one of the elements of the offense. Id.; Martin v. State, 173

S.W.3d 463, 466 (Tex. Crim. App. 2005). Accordingly, a “party may introduce evidence of

other crimes, wrongs, or acts if such evidence logically serves to make more or less probable an

elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive

evidence that undermines an elemental fact.” Martin, 173 S.W.3d at 466.

Standard of Review

       “Whether extraneous offense evidence has relevance apart from character conformity, as

required by Rule 404(b), is a question for the trial court.” Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003). A ruling on the balance between probative value and the counter

factors set out in Rule 403 is also a question for the trial court, although “that balance is always

slanted toward admission, not exclusion, of otherwise relevant evidence.” De La Paz, 279

S.W.3d at 343; Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on

reh’g). Thus, we review the trial court’s ruling on the admissibility of extraneous offenses for an

abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We will
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uphold the trial court’s decision so long as its ruling is within the “zone of reasonable

disagreement.” Montgomery, 810 S.W.2d at 391. Generally, a trial court’s ruling is within this

zone if the evidence shows that 1) an extraneous transaction is relevant to a material, non-

propensity issue, and 2) the probative value of that evidence is not substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz, 279

S.W.3d at 344.

Analysis

       Ibarra contends that the evidence regarding the aggravated robbery was inadmissible

under Rule 404(b) because it only served to prove a character trait and to show that Ibarra acted

in conformity with that trait when he shot John McCalister. Ibarra stresses that, although both

offenses involved African American victims, occurred within an hour of each other in the same

neighborhood, and occurred while he was driving the green Mustang and while the car was

stopped at an intersection, the offenses are more dissimilar than they are alike. Most notably,

Chino was not involved in the robbery and Ibarra did not hold a gun during the robbery. Thus,

he asserts that the extraneous offense evidence was not relevant to prove motive or intent or to

disprove his defense of duress. We disagree.

       Under the circumstances in this case, the trial court could have reasonably concluded that

evidence of Ibarra’s participation in the aggravated robbery had some logical relevance aside

from character conformity. The fact that Ibarra admitted committing the robbery with a deadly

weapon—the same 9 millimeter gun that was used in the murder of John McCalister 45 minutes

later—tends to rebut his claim of duress. See Montgomery, 810 S.W.3d at 376 (evidence is

relevant if it “provides a small nudge toward proving or disproving some fact of consequence”);

see also King v. State, 189 S.W.3d 347, 355 (Tex. App.—Fort Worth 2006, no pet.) (evidence of

extraneous offense may be probative to rebut defensive theory of duress). Thus, it was at least
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subject to reasonable disagreement whether the extraneous offense evidence was admissible for

the noncharacter-conformity purpose of rebutting Ibarra’s defensive theory of duress.

Accordingly, we cannot conclude the trial court abused its discretion in admitting the extraneous

offense evidence under Rule 404(b). We therefore overrule Ibarra’s first issue.

       Ibarra also argues that the extraneous offense evidence should have been excluded under

Rule 403 because it was more prejudicial than probative. TEX. R. EVID. 403. Even when the

admission of extraneous offense evidence is permissible under Rule 404(b), we must still

determine whether the probative value of the offense is substantially outweighed by the danger

of unfair prejudice under Rule 403. Id.; Moses, 105 S.W.3d at 626. We consider the following

factors when conducting a Rule 403 analysis: (1) the strength of the extraneous offense evidence

to make a fact of consequence more or less probable; (2) the potential of the extraneous offense

to impress the jury in some irrational but indelible way; (3) the time during trial that the State

requires to develop evidence of the extraneous misconduct; and (4) the need by the State for the

extraneous evidence.     Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004);

Montgomery, 810 S.W.2d at 389–90. We uphold the trial court’s ruling on a Rule 403 balancing

test if it is within the zone of reasonable disagreement. Santellan v. State, 939 S.W.2d 155, 169

(Tex. Crim. App. 1997). Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial. Williams v. State,

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

       Considering the factors pertinent to the Rule 403 balancing test, we first note that the

evidence in question was highly probative because it tended to rebut Ibarra’s defense of duress.

This factor weighs in favor of the admission of the evidence. Second, the evidence did carry the

danger of impressing the jury in some irrational and indelible way; this factor therefore weighs

against admission of the evidence. Third, although evidence of the aggravated robbery was
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developed by the cross-examination of Ibarra and through three other rebuttal witnesses,

discussion of that offense did not consume an inordinately large amount of time (one day of a

six-day trial) and did not divert the jury’s attention from the crucial issues in the case. Thus, this

factor weighs in favor of admission.         Finally, the State’s need for the extraneous offense

evidence was high given that the State had no other direct evidence with which to rebut Ibarra’s

claim of duress. See Montgomery, 810 S.W.2d at 390 (final factor in Rule 403 balancing

involves consideration of whether the State needed the evidence in question to establish a fact of

consequence and whether that fact of consequence was in dispute). This factor therefore weighs

in favor of the admission of the evidence.

        After weighing the required factors, we conclude the trial court could have reasonably

concluded the probative value of the evidence was not substantially outweighed by the danger of

unfair prejudice. See Erazo, 144 S.W.3d at 489 (setting forth factors); Santellan, 939 S.W.2d at

169 (applying abuse of discretion standard). Because the trial court’s decision to admit the

extraneous offense evidence under Rule 403 was within the zone of reasonable disagreement, the

trial court’s decision must be upheld. See Santellan, 939 S.W.2d at 169. Accordingly, Ibarra’s

second issue is overruled.

                                             CONCLUSION

        Based on the foregoing, we overrule Ibarra’s issues on appeal and affirm the judgment of

the trial court.

                                                          Rebeca C. Martinez, Justice

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