      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00160-CR



                                    Essa M’Bowe, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        D-1-DC-08-300062, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Essa M’Bowe of murder, see Tex. Penal Code Ann.

§ 19.02 (West 2003), and sentenced him to forty-five years in prison. M’Bowe argues that the

district court abused its discretion by admitting evidence of an extraneous offense and by refusing

to allow additional questioning of two potential jurors. We affirm the judgment of conviction.

               In the early morning hours of December 23, 2007, police responded to a report

that gunshots had been fired near a group of fourplexes at the 8200 block of Sam Rayburn Drive

in Austin. When officers arrived on the scene, they observed a group of Hispanic males drinking

and listening to music in the parking lot. About twenty to thirty feet from the group, officers found

a Hispanic male, Efraim Jaimes, lying on his back next to a vehicle. He was alive, but was having

difficulty breathing and communicating. Although Jaimes was unable to speak, he was able to
show officers a small puncture wound in his abdomen. Jaimes died shortly after being transported

to the hospital.

                   Police secured the scene and conducted an investigation. The group of Hispanic

males seemed to be unaware that a shooting had occurred. Officers questioned other potential

witnesses, but were unable to procure any reliable information. Eventually, they spoke to Romualdo

Diaz-Sosa, who had been in the parking lot with his brother and a friend at the time of the shooting.

The men had noticed a white car arrive in the area shortly before the shooting. After hearing a sound

like a firecracker, they observed eight to ten African-American males running from the scene. Some

of the men left in the white car while others scattered in different directions. Diaz-Sosa and his

friends heard a moaning sound and, upon investigation, found Jaimes lying on the ground. They then

called the police.

                   Several days later, on January 4, 2008, police were contacted by Alton LaPoint,

who, at the time, was in custody in the Travis County jail, having been charged with unlawful

possession of a firearm by a felon. LaPoint admitted to being at 8200 Sam Rayburn Drive at the

time of the shooting and identified M’Bowe as the person who had shot and killed Jaimes.

According to LaPoint, he, M’Bowe, and several other men had been at a recording studio in the

hours before the shooting. At the studio, M’Bowe had been showing off a black revolver with

a brown handle. When the men had finished at the studio, M’Bowe drove several of the men,

including M’Bowe’s brother, Larry Egins, Terrance Anderson, and LaPoint, to the 8200 block of

Sam Rayburn Drive, to sell drugs. The men exited the vehicle and went their separate ways. Both

Egins and Anderson testified that, after the men exited the vehicle, they saw M’Bowe trying to



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sell drugs to a Hispanic man. After a gunshot was heard, the men returned to the car. Egins testified

that, when he returned to the car, he saw M’Bowe holding a black revolver with a brown handle.

According to LaPoint, once everyone was back in the car, M’Bowe told LaPoint that he had

shot someone and that “he gonna feel it in the morning.” Egins corroborated this testimony and also

testified that M’Bowe further stated: “I shot that bitch in the stomach.”

               Based on the information they had learned, police began searching for M’Bowe.

They eventually located him and followed him to an apartment complex at 14100 Thermal Drive.

Through further investigation, police determined that M’Bowe was inside the apartment of

Laura Ann Roy, the girlfriend of either Justin Newman or James Wilson, who both associated with

M’Bowe. When M’Bowe left the apartment, accompanied by Newman and Wilson, he was arrested.

               Police obtained a warrant to search Roy’s apartment and recovered a black gun with

a brown handle and ammunition. Testing revealed that the gun was the weapon that killed Jaimes.

The bullets found in Roy’s apartment were similar to the bullet taken from Jaimes’s body. DNA

testing showed that M’Bowe could not be excluded as a contributor to the DNA samples taken from

the handle of the gun or as a contributor to the DNA samples taken from the trigger guard, hammer,

and cylinder release of the gun. Although Newman could be excluded as a contributor to the

DNA found on the handle of the gun, he could not be excluded as a contributor to the DNA found

on the trigger guard, hammer, and cylinder release of the gun.

               On February 27, 2008, M’Bowe was indicted for murder. On February 12, 2009, a

jury found M’Bowe guilty as charged. The jury assessed punishment at forty-five years in prison.

In four issues, M’Bowe argues that the district court erred in allowing the State to introduce evidence



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of a prior offense of aggravated robbery. According to M’Bowe, the evidence is not relevant for any

purpose other than to show character conformity and, therefore, is not admissible under rule 404(b),

and, even if relevant, the evidence was unfairly prejudicial under rule 403. See Tex. R. Evid. 403,

404(b). In a fifth issue, M’Bowe argues that the district court abused its discretion in refusing to

allow further questioning of certain potential jurors.

               We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). Unless the trial court’s

decision was outside the zone of reasonable disagreement, we uphold the ruling. Id.; Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

               An accused may not be tried for being a criminal generally. Couret v. State,

792 S.W.2d 106, 107 (Tex. Crim. App. 1990). Evidence of other crimes, wrongs, or acts is not

admissible if it does nothing more than establish the bad character of an accused person in order

to show action in conformity therewith. Tex. R. Evid. 404(b). However, this type of evidence may

be admissible if it has relevance to a material issue in the case apart from its tendency to prove the

character of the defendant. Page v. State, 125 S.W.3d 640, 649 (Tex. App.—Houston [1st Dist.]

2003, no pet.). Permissible purposes for which evidence of “other crimes, wrongs or acts” may be

admitted include the following: “proof of motive, opportunity, intent, preparation, plan,

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

extraneous evidence may be relevant and admissible to rebut a defensive theory. Roberts v. State,

29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).




                                                  4
               Here, M’Bowe’s defensive theories raised the issue of identity. Although all evidence

supported the fact that M’Bowe was present at the scene of the crime, several other men were also

present, including LaPoint, Egins, and Anderson, three of M’Bowe’s associates that night, who also

testified at trial. In his cross-examination of these witnesses, defense counsel raised the possibility

that one of the other men could have been the shooter. Defense counsel expressly asked LaPoint if

he, LaPoint, had been the shooter and was now trying to frame M’Bowe. He also questioned the

credibility of the other witnesses, specifically asking Egins if he would lie to protect LaPoint.

               Evidence of an extraneous act is admissible to prove identity, when identity is

an issue, only if there is some distinguishing characteristic common to both the extraneous offense

and the offense for which the accused is on trial. Ransom v. State, 503 S.W.2d 810, 812 (Tex. Crim.

App. 1974). The common distinguishing characteristic may be the proximity in time and place or

the common mode of the commission of the offenses. Id. (citing Ford v. State, 484 S.W.2d 727, 729

(Tex. Crim. App. 1972)); see also Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).

Here, in an attempt to prove that the shooter was M’Bowe and not LaPoint or one of the other men

at the scene, the State introduced evidence that, on December 13, 2007, ten days before Jaimes’s

murder, M’Bowe possessed a distinctive gun whose description matched that of the gun used to

kill Jaimes. Although this evidence related to an aggravated robbery, the district court attempted to

limit the evidence presented to the jury to evidence of possession—evidence that, ten days before

Jaimes’s murder, M’Bowe had been in possession of a black revolver with a brown handle. It was

this act—the act of possessing a weapon matching the description of the murder weapon, not the

offense of aggravated robbery—that the State was required to prove beyond a reasonable doubt. See



                                                  5
Harrell v. State, 884 S.W.2d 154, 159 (Tex. Crim. App. 1994) (holding that standard of admissibility

for extraneous offense evidence is proof beyond reasonable doubt).

               The State’s evidence included the testimony of Emmanuel Niembro. Niembro

testified that on December 13, 2007, he had encountered a black male holding a black revolver

with a brown handle. Niembro testified that, soon after the December 13 incident, he had identified

M’Bowe from a live lineup as the man who had been holding the revolver. Likewise, at trial,

Niembro made an in-court identification of M’Bowe as the man he had encountered. In addition,

Niembro identified the revolver recovered from Roy’s apartment—the revolver determined to be the

murder weapon—as similar to the one he had observed M’Bowe holding on December 13, 2007.

Niembro also testified that M’Bowe had touched his car.

               Following Niembro’s testimony, the State presented the testimony of Officer

Rolando Fuertes, who was at the scene on the night Niembro encountered M’Bowe. Fuertes testified

that he had lifted fingerprints from Niembro’s vehicle. Bonnie Manno, a latent print examiner,

testified that those prints matched M’Bowe’s.

               The record demonstrates that the State’s extraneous act evidence—evidence that

M’Bowe possessed a weapon matching the description of the murder weapon ten days before

the murder—was presented for a purpose other than to show character conformity, as required by

rule 404(b). The identity of the shooter was a central issue in the case, and evidence that, only

ten days before Jaimes’s murder, M’Bowe was in possession of a distinctive weapon matching

the description of the murder weapon tends to make it more likely that M’Bowe, rather than one

of the other men present at the scene, was also in possession of the weapon when Jaimes was shot.



                                                 6
The evidence was not admitted to show that M’Bowe committed an aggravated robbery. Indeed,

there was no direct evidence that an aggravated robbery had occurred. The common act was the

possession of a distinctive weapon—a black revolver with a brown handle. The district court’s

decision to admit this evidence under rule 404(b)—as having relevance beyond its tendency to

show character conformity—was within the zone of reasonable disagreement. See Montgomery,

810 S.W.2d at 391. Accordingly, we overrule M’Bowe’s first and third issues.

               Having determined that the evidence was of a similar act that tends to show identity

and was, therefore, admissible under rule 404(b), we next consider whether the probative value of

the evidence was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.

Rule 403 objections are to be analyzed by balancing: (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. Gigliobianco v. State, 210 S.W.3d 637, 641-42

(Tex. Crim. App. 2006).

               An analysis of each of these six factors supports the district court’s decision to admit

the evidence in question. Evidence that M’Bowe possessed a distinctive weapon matching the

description of the murder weapon “strongly serves to make more [] probable” the fact that M’Bowe

was in possession of a weapon matching that description when Jaimes was shot. See id. at 641. The



                                                  7
defense called into question the reliability of the other witnesses, suggesting that LaPoint had

been the shooter and that the others were lying to protect LaPoint. Consequently, evidence that, only

ten days before, M’Bowe had been in possession of a weapon whose description matched that of

the weapon used to kill Jaimes became relevant to establish the shooter’s identity and counter the

defense that LaPoint was the shooter. In addition, the evidence was limited to the specific act of

M’Bowe’s having possessed the gun.

               As for the Niembro incident, the State’s extraneous act evidence had little tendency

to suggest a decision by the jury on an improper basis or to confuse or distract the jury from the main

issues. Whether M’Bowe was or had been in possession of the weapon—the fact that the State

sought to prove by introducing evidence of the encounter with Niembro—was directly relevant to

the question of who was more likely to be the shooter. Identity was a central, disputed issue, and the

evidence of the Niembro encounter presented by the State was limited to evidence that, ten days

before the murder, M’Bowe was in possession of a distinctive weapon whose description matched

that of the murder weapon.

               However, as M’Bowe points out, although limited, the evidence relating to the

Niembro encounter did include some evidence to suggest that a criminal act had been committed.

This evidence includes Niembro’s statement that he had identified M’Bowe from a live lineup and

the testimony of both Manno and Officer Fuertes that M’Bowe’s fingerprints had been lifted from

Niembro’s vehicle.1 While we agree with M’Bowe that the evidence could have suggested to the


       1
          The State contends that M’Bowe’s rule 403 objection was not preserved as to Manno and
Fuertes, but the record shows that, in express reference to the fingerprint evidence, defense counsel
argued:

                                                  8
jury that some sort of criminal act might have been committed, there was no direct evidence that a

criminal act had been committed, that M’Bowe had been charged, or that the act was aggravated

robbery. There was also no indication that M’Bowe had been convicted—or even indicted—for any

crime and, indeed, in the absence of such evidence, the jury might well have inferred that, despite

police involvement, there was no indictment or conviction at all. The evidence indicated only that

both the police and M’Bowe had been involved in the incident in some manner.

                As explained, the evidence was presented to show that M’Bowe had been

in possession of a weapon similar to the murder weapon only ten days before the murder. The

district court’s decision that the probative value of this evidence, which tends to prove one of the

central issues in the case, outweighs the danger of unfair prejudice is within the zone of reasonable

disagreement. While it is questionable whether, in light of Niembro’s testimony, the testimony of

Manno and Officer Fuertes was also necessary, given the deference afforded to the trial court in

making evidentiary rulings, we cannot say that the court’s decision to admit the evidence was

outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391; Jones v. State,

119 S.W.3d 412, 419 (Tex. App.—Fort Worth 2003, no pet.) (“[A] reviewing court is to reverse the

trial court’s judgment rarely and only after a clear abuse of discretion, recognizing that the trial court




        Any reasonable juror would conclude that a prior bad act had occurred, and that’s
        character conformity evidence which is clearly inadmissible. Unless that weapon can
        be identified beyond a reasonable doubt, then the proposed evidence is substantially
        outweighed by the danger of unfair prejudice pursuant to Rule 403.

M’Bowe’s objection to the fingerprint evidence, which made express reference to rule 403, was
sufficient to preserve error. See Tex. R. App. P. 33.1.

                                                    9
is in a superior position to gauge the impact of the relevant evidence.”). Accordingly, we overrule

M’Bowe’s second and fourth issues.

                In his fifth issue, M’Bowe argues that the district court abused its discretion by

granting two of the State’s challenges for cause while refusing M’Bowe the opportunity to

rehabilitate the jurors or to make a bill of exceptions. The State contends that there was no error

because defense counsel was allowed to ask his questions and was prevented from asking further

questions only after the State had made its challenges for cause.

                The trial court has broad discretion over the process of selecting a jury. Sells v. State,

121 S.W.3d 748, 755-56 (Tex. Crim. App. 2003), cert. denied, 540 U.S. 986 (2003). Voir dire could

go on indefinitely if the trial court did not have the ability to impose reasonable limits on it. Barajas

v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). A trial court abuses its discretion only when

it prohibits a proper question about a proper area of inquiry. Id. A question is proper if it seeks to

discover a juror’s views on an issue applicable to the case. Id.

                M’Bowe’s specific challenge pertains to potential jurors Trull and Dangerfield

and their responses to questions regarding the State’s burden of proof. The discussion regarding

the State’s burden of proof was begun by the State and directed to the full venire panel. State’s

counsel described the difference between “beyond all reasonable doubt” and “beyond all doubt” and

questioned the potential jurors as to their understanding of these standards—whether they would

hold the State to a burden of proving beyond a reasonable doubt or if they would require the State to

prove its case beyond all doubt. This exchange ensued between the State and potential juror Dones,

an exchange eventually joined by Dangerfield and Trull:



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       Dones:                  I guess I would have to say against everybody else, all doubt.
                               I mean, a murder case is very serious to me.

       State’s counsel:        Yes, ma’am, it is.

       Dones:                  I don’t want to just say they did it. I’m not comfortable with
                               that.

       ....

       Dones:                  For me, I would say all doubt.

       State’s counsel:        Okay. That’s what I needed to know. Thank you. Yes, sir,
                               Mr. Dangerfield?

       Dangerfield:            Now that I have learned more, yeah, I would agree with her,
                               too. Yeah.

       State’s counsel:        So, again, my hypothetical of three witnesses coming to
                               testify—I mean, we still have to prove to you the case, okay?
                               But I am saying three witnesses come in, you believe them
                               beyond a reasonable doubt; however there is not DNA. There
                               is, you know, things that you are like, gosh, I really wish they
                               had that, but I believe everything that those witnesses said.
                               Would you be able to hold the State to beyond a reasonable
                               doubt and not to beyond all doubt?

       Dangerfield:            Still all doubt.

       ....

       Trull:                  I’m a little iffy. Since it’s murder, I’m going to go with all
                               doubt.


                At this point, the court interrupted and explained the standards of proof at length,

attempting to clarify the differences between the two standards and explaining the virtual

impossibility of proving something beyond all doubt. The court explained that the only way to know

beyond all doubt that something happened is to observe it oneself, and if a person observes the

                                                  11
conduct at issue, he is no longer a juror, but a witness. Still, when questioned again, Trull and

Dangerfield asserted that they would require the State to prove its case beyond all doubt.

               Defense counsel also had the opportunity to discuss the issue with the venire panel.

Defense counsel explained the burdens by describing the universe of “all doubt” divided into either

reasonable doubt or unreasonable doubt and continued:


       Those of you who said beyond all doubt, knowing that the other kind of doubt is
       unreasonable doubt, would you require the State to prove their case to you beyond
       unreasonable doubt?


The court again interrupted and attempted to clarify further, and defense counsel further explained

the standard, also discussing potential differences between the words “all reasonable doubt” and “a

reasonable doubt.” After an extensive discussion, but without further individual questioning of Trull

or Dangerfield, defense counsel moved on to other matters.

               At the conclusion of voir dire, the State challenged potential jurors Trull and

Dangerfield, among others, for cause. The court commented that:


               Those are the people who even after I interrupted numerous times
               said that they would require the State of Texas to prove guilt beyond
               all doubt in a criminal case.


The court then sustained the State’s challenges. Defense counsel objected, stating that Trull and

Dangerfield were just confused. The court refused to allow further questioning, stating that the law

had been explained multiple times by both sides and by the court itself. Defense counsel then asked




                                                 12
to make a bill of exception by speaking to each potential juror individually. The court refused,

stating that defense counsel had the opportunity to speak to them individually during voir dire.

               According to M’Bowe, the evidence shows that potential jurors Trull and Dangerfield

were “at best unsure” or “vacillating juror[s],” and defense counsel should have been permitted

to question them further before they were excluded from the jury panel. As a matter of procedure,

we find no abuse of discretion in the district court’s refusal to allow further questioning. Defense

counsel had ample opportunity to rehabilitate these potential jurors during voir dire.

               The record shows that the district court allowed virtually unlimited questioning of

these potential jurors during voir dire. Further, the correct legal standard was repeatedly explained

to Trull and Dangerfield and, even after extensive discussion, both still said that they would hold

the State to proof beyond all doubt, rather than proof beyond a reasonable doubt. After extensive

questioning, the district court exercised its discretion to determine that these potential jurors were

biased or prejudiced rather than merely confused. On this record, we cannot say that the court’s

decision to prohibit further individual questioning after the State challenged Trull and Dangerfield

for cause—either for purposes of rehabilitation or for purposes of a bill of exception—was an abuse

of discretion. See Sells, 121 S.W.3d at 755-56; Barajas, 93 S.W.3d at 38. Accordingly, we overrule

M’Bowe’s fifth issue.




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              Having overruled each of M’Bowe’s issues, we affirm the judgment of conviction.




                                           __________________________________________

                                           G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: May 27, 2010

Do Not Publish




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