Opinion filed September 26, 2013




                                              In The


           Eleventh Court of Appeals
                                          __________

                                   No. 11-11-00255-CR
                                       __________

                         RASHAD ROY BELL, Appellants

                                                 V.

                        THE STATE OF TEXAS, Appellee


                        On Appeal from the 441st District Court

                                   Midland County, Texas

                             Trial Court Cause No. CR 38,002


                         MEMORANDUM OPINION

       The jury found Rashad Roy Bell 1 guilty of felony murder and two counts of
aggravated assault with a deadly weapon. The charges were the result of an

       1
        We note that most of the documents in the record, including the judgments, reflect Appellant's
name to be Rashad Roy Bell but that the indictment reflects his name as Roy Rashad Bell.
automobile collision. After it found the enhancement paragraphs true, the jury
assessed punishment at confinement for sixty-five years and a fine of $10,000 for
the felony murder conviction, confinement for thirty years and a fine of $5,000 for
the first aggravated assault, and confinement for five years for the second
aggravated assault. The trial court found that Bell participated in a criminal street
gang, sentenced him according to the jury’s assessment of punishment, and ordered
that his sentences run concurrently. We affirm.
      Bell presents two issues for review. In his first issue, Bell argues that the
trial court abused its discretion when it admitted evidence of extraneous offenses
under the same transaction contextual evidence exception to Rule 404(b) of the
Texas Rules of Evidence. Bell alleges in his second issue that the trial court
abused its discretion when it disqualified Bell’s mother as a witness in the
punishment phase of the trial for violating “The Rule.”
      Although there is no challenge to the sufficiency of the evidence, we provide
the following for context. The evidence at trial showed that Bell entered Midtown
Hotel just before 3:00 a.m. on October 14, 2010, and asked about room rates. He
also asked for change for a dollar. When the receptionist opened the cash register,
Bell leaned over the counter and took $170 from the register. Bell drove away
from the hotel in a stolen vehicle. Within minutes of leaving the hotel, he ran a
stop sign and struck a street sweeper. Bell was driving in excess of seventy-seven
miles per hour in a thirty mile-per-hour zone. The passenger of the street sweeper,
Ronnie Lee Randolph, was thrown from the sweeper and was pronounced dead at
the scene. The driver of the street sweeper, Donald Clark, and the passenger in
Bell’s vehicle, Subrina Crystal Kalinoski, were seriously injured.
      Prior to burglarizing the hotel, Bell and Kalinoski drove around Odessa and
Midland looking for drugs and ways to buy drugs. The State presented evidence
that, during the hours leading up to the collision, Bell committed numerous bad
                                          2
acts: (1) he possessed and used crack cocaine numerous times throughout the day;
(2) he was in possession of a baggie that contained white powder and a baggie that
contained several “crack rocks” when treated at the hospital after the collision;
(3) he attempted to sell fake cocaine in order to make money to buy real cocaine;
(4) he stole money and other items from an acquaintance’s vehicle; (5) he stole
items from Wal-Mart and had Kalinoski’s father return them for a credit card in
order to exchange the credit card for crack; (6) he stole beer from 7-Eleven and
exchanged it for crack; and (7) he stole Kalinoski’s boyfriend’s credit card and
attempted to purchase items at Walgreen’s and 7-Eleven with the card, as well as
withdraw money from the account linked to the card. In addition, Bell tested
positive for cocaine when he was treated at the hospital following the collision.
      Bell’s defense counsel objected to the admission of the numerous bad acts
committed by Bell prior to the burglary of the hotel. Counsel made the objections
under Texas Rules of Evidence 401, 403, and 404(b). The State argued that the
extraneous offenses were admissible under the same transaction contextual
evidence exception to Rule 404(b). The State also argued that the extraneous
offenses were admissible under Rule 404(b) to show Bell’s motive for the
burglary, as well as to show a plan or common scheme and design for the day. The
trial court overruled Bell’s objections and admitted the extraneous offenses.
      On appeal, Bell contends that the State offered the extraneous offenses to
show character conformity and that the trial court erred when it admitted the
offenses under the same transaction contextual evidence exception to Rule 404(b).
Specifically, Bell argues that the extraneous offenses were not so intermixed with
the charged offenses that the jury could not understand the charged offenses
without the admission of the extraneous offenses. Although Bell states in his brief
that the evidence was admitted in violation of Rules 401, 403, and 404, he does not


                                          3
provide any explanation as to why the evidence should have been excluded under
Rule 403.
      We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is
outside the “zone of reasonable disagreement.” Id.
      Rule 404(b) provides that “[e]vidence 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). The rule further provides that evidence may be
admissible for other purposes, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
Extraneous offense evidence may be admissible for purposes other than those
expressly listed.   Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011);
Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); Montgomery, 810
S.W.2d at 388.
      The evidence was admissible in this case to show Bell’s intent and motive to
burglarize the hotel—to steal money in order to buy more crack. Moses v. State,
105 S.W.3d 622, 626 (Tex. Crim. App. 2003). In addition, Bell’s defense was that
he was not the driver of the vehicle when it collided with the street sweeper. The
evidence leading up to the collision showed that Bell was with Kalinoski in the
stolen vehicle all day and that the person Bell claimed was driving was not in the
vehicle. Thus, the evidence was also admissible to rebut Bell’s defense. Id.
      The trial court’s decision to admit the extraneous offense evidence was not
outside the zone of reasonable disagreement. Therefore, the trial court did not
abuse its discretion when it admitted the evidence. We overrule Bell’s first issue.
      Bell asserts in his second issue that the trial court erred when it disqualified
Bell’s mother from testifying after it found that she had violated Rule 614. TEX. R.
                                          4
EVID. 614. Rule 614, “the Rule,” provides for the exclusion of witnesses so that
they cannot hear the testimony of other witnesses. Disqualification of a defense
witness for a violation of the Rule must be viewed in light of the defendant’s
constitutional right to call witnesses on his behalf. Webb v. State, 766 S.W.2d 236,
240–41 (Tex. Crim. App. 1989).             The trial court abuses its discretion in
disqualifying a witness when there is not a showing that the violation of the Rule is
due to the procurement or knowledge of the defendant and when the testimony is
crucial to the defense. Id.
      Before the trial began, the State specifically asked the court to admonish the
witnesses and make sure that Bell did not relay messages to witnesses that could
potentially testify. The State made this request because the prosecutor received
information that Bell’s sister planned on passing information regarding the trial to
Bell’s mother. The State invoked the Rule, and the trial court admonished the
witnesses.
      When defense counsel called Bell’s mother to testify, the State objected on
the ground that she had violated Rule 614 because she had been in constant
communication with Bell and Bell had relayed information to her regarding the
events of the trial, including the details of a witness’s testimony. Bell’s mother
acknowledged that she had been admonished under the Rule and that it had been
explained to her that she could not discuss matters that occurred in the court
proceedings with anyone.       She admitted that her son told her about the
proceedings, including certain testimony, and that she watched the news and read
information online concerning the trial.
      The trial court noted that it had instructed the witnesses to not allow anyone
to talk to them about the trial. The witnesses were further instructed to stop the
conversation immediately and report the incident to the court.


                                            5
      The trial court found that Bell’s mother violated Rule 614 and did not allow
her to testify. Bell concedes that his mother violated the Rule, but argues that,
because her knowledge of what happened during the guilt/innocence phase did not
affect her testimony for the punishment phase, she should not have been
disqualified. We disagree. While the knowledge she gained when she violated the
Rule may not have affected the testimony she planned to give, the trial court did
not abuse its discretion under the test in Webb. Here, the violation of the Rule
occurred because of the defendant. Bell, himself, told his mother about the events
of the trial. In addition, Bell’s mother’s testimony was not crucial to the defense.
Outside the jury’s presence, Bell’s mother testified regarding Bell’s upbringing, his
battle with drugs, the steps he was taking to end that battle, and the fact that he had
support from his family. After Bell’s mother was disqualified, defense counsel
called Bell’s stepfather to testify. His testimony provided the same information to
the jury. The trial court did not abuse its discretion when it disqualified Bell’s
mother as a witness. We overrule Bell’s second issue.
      We affirm the judgments of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


September 26, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                          6
