                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00298-CR

CLIFTON DEAN MONTGOMERY, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 12-01245-CRF-272


                          MEMORANDUM OPINION


      In the early morning of December 14, 2011, just after midnight, two men got out

of a dark-colored Impala and approached the front door of the home of eighteen-year old

Raymond Cavazos, a drug dealer, in Bryan. When Cavazos heard a knock on the door,

he looked out the window, got his handgun, and opened the door. A brief scuffle and an

exchange of several gunshots ensued. Cavazos was shot in the head and killed. The two

men entered the home, went to a bedroom closet, and took a black box that contained

Cavazos’s drugs and cash in the amount of $3,000 to $4,000. They also took his gun.
       Cavazos’s girlfriend, who lived there with Cavazos and her three children,

partially witnessed the events, and neighbors who were outside at the time also partially

witnessed the events. Based on a description of the vehicle and a Crimestoppers tip,

police were quickly led to Appellant Clifton Dean Montgomery, Jr., whom they arrested

on December 16. In a recorded interrogation, Montgomery eventually confessed that he

was one of the two men who went to Cavazos’s home to rob him but that it was Eugene

“Geno” Jenkins who shot Cavazos. Montgomery said that Cavazos fired the first shot.

Bryan Police Detective Steven Fry, who investigated the murder, testified that he believed

that Cavazos fired the first shot; he also opined that Montgomery and Jenkins went to

Cavazos’s home armed so that they could rob him.

       A jury found Montgomery guilty of capital murder, and because the State did not

seek the death penalty, he was assessed an automatic life sentence without parole.

Montgomery appeals, asserting in two issues that the trial court abused its discretion in

admitting extraneous-offense evidence in violation of Rules of Evidence 404(b) and 403,

respectively. We will affirm.

       During the police interrogation, Montgomery repeatedly professed that he was

only a crack dealer. The video of the interrogation was going to be shown to the jury,

and Montgomery’s counsel objected on Rule 404(b) and 403 grounds. The trial court

overruled the objections and gave the jury a limiting instruction that the extraneous-

offense evidence could be considered only on the issues of motive and intent. The charge

likewise included such an instruction.

              “Whether extraneous offense evidence has relevance apart from

Montgomery v. State                                                                 Page 2
       character conformity, as required by Rule 404(b), is a question for the trial
       court.” De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)
       (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). We
       review a trial court’s ruling on the admissibility of extraneous offenses
       under an abuse-of-discretion standard. Id. As long as the trial court’s ruling
       is within the “zone of reasonable disagreement,” it will be upheld. Id.

               Under Rule of Evidence 404(b), 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). However, it may be
       admissible for other purposes, “such as proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake or
       accident.” De La Paz, 279 S.W.3d at 342-43. The rule excludes only that
       evidence that is offered solely for the purpose of proving bad character and
       conduct in conformity with that character. Id. at 343. In addition, evidence
       admissible under rule 404(b) may nonetheless be excluded if the trial judge
       determines that its probative value is substantially outweighed by the
       danger of unfair prejudice. TEX. R. EVID. 403; Mozon v. State, 991 S.W.2d 841,
       846-47 (Tex. Crim. App. 1999).

              An exception to rule 404(b) exists in that 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) (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. Id. at 732. Same-transaction contextual evidence is “admissible
       to show the context in which the criminal act occurred.” Wesbrook v. State,
       29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “[E]vents do not occur in a
       vacuum, and the jury has a right to hear what occurred immediately prior
       to and subsequent to the commission of that act so that it may realistically
       evaluate the evidence.” Id.

               There are two types of contextual evidence: (1) evidence of other
       offenses connected with the primary offense, referred to as same transaction
       contextual evidence; and (2) general background evidence, referred to as
       background contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.
       Crim. App. 1991). Same transaction contextual evidence is admissible as an
       exception under Rule 404(b) where such evidence is necessary to the jury’s
       understanding of the charged offense. See Wyatt, 23 S.W.3d at 25; Rogers v.
       State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Extraneous conduct is

Montgomery v. State                                                                     Page 3
       considered to be same transaction contextual evidence when the charged
       offense would make little or no sense without also bringing in the same
       transaction evidence. Rogers, 853 S.W.2d at 33. Such evidence provides the
       jury information essential to understanding the context and circumstances
       of events that are blended or interwoven. Camacho v. State, 864 S.W.2d 524,
       532 (Tex. Crim. App. 1993).

              The purpose of admitting same transaction contextual evidence is
       not to show that the extraneous charged offenses are part of a common
       scheme or that the charged offense was committed in an identical signature
       manner. Jones v. State, 962 S.W.2d 158, 166 (Tex. App.—Fort Worth 1998, no
       pet.). Nor is the purpose to show that appellant committed the charged
       offense merely because he also committed the extraneous offense. Id.
       Rather, the purpose of admitting extraneous evidence as same transaction
       contextual evidence is to put the instant offense in context. Id.; Mayes, 816
       S.W.2d at 86-87; Camacho, 864 S.W.2d at 532.

       Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003,
       pet. dism’d).

Davis v. State, No. 10-07-00206-CR, 2011 WL 322877, at *9 (Tex. App.—Waco Feb. 2, 2011,

pet. ref’d) (not designated for publication).

       The indictment charged Montgomery with capital murder in that he caused

Cavazos’s death by shooting him with a firearm in the course of committing or

attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014).

On appeal, the State asserts that the motive for the crime and Montgomery’s intent was

to rob Cavazos of drugs and money.

       The evidence showed that Cavazos was a drug dealer, and Detective Fry testified

that drug dealers often carry weapons because they are at a risk of being robbed of their

drugs or money and, upon being robbed, cannot report it to the police because of their

involvement in the illegal activity. Fry added that people involved in drugs tend to have

weapons. Thus, the State concludes, the trial court did not abuse its discretion in

Montgomery v. State                                                                    Page 4
admitting evidence that Montgomery was also a drug dealer; that evidence shows

Montgomery’s motive and intent, and it also put the offense in context as same-

transaction contextual evidence and background contextual evidence. See, e.g., Medellin

v. State, 960 S.W.2d 904, 908-09 (Tex. App.—Amarillo 1997, no pet.); see also Davis, 2011

WL 322877, at *9-10; Prewitt v. State, 133 S.W.3d 860, 865 (Tex. App.—Amarillo 2004, pet.

ref’d); Swarb, 125 S.W.3d at 682. We agree with the State. Because we cannot say that the

trial court abused its discretion in admitting evidence that Montgomery was a drug

dealer as evidence of motive or intent, and because the evidence was same-transaction

contextual evidence and background contextual evidence, we overrule issue one.

       Montgomery’s second issue alleges that the evidence that he was a drug dealer

should have been excluded because its prejudicial effect outweighed its probative value.

See TEX. R. EVID. 403.

       In its seminal decision in Montgomery v. State, the Court of Criminal Appeals
       identified four non-exclusive factors to be considered in determining
       whether evidence should be excluded under Rule 403. Those factors were:
       (1) the probative value of the evidence; (2) the potential to impress the jury
       in some irrational, yet indelible, way; (3) the time needed to develop the
       evidence; and, (4) the proponent’s need for the evidence.

       More recently, the Court has looked to the language of Rule 403 and
       restated the pertinent factors.

          [A] trial court, when undertaking a Rule 403 analysis, 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

Montgomery v. State                                                                     Page 5
          evidence already admitted. Of course, these factors may well blend
          together in practice.

       Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
       (footnotes omitted).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote and

citations omitted).

       Rule 403 “envisions exclusion of evidence only when there is a ‘clear disparity

between the degree of prejudice of the offered evidence and its probative value.’” Id. at

322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). “Generally,

although a trial court must still perform a balancing test to see if the same transaction

contextual evidence’s probative value is substantially outweighed by its prejudicial

effect, the prejudicial nature of contextual evidence rarely renders such evidence

inadmissible, as long as it sets the stage for the jury’s comprehension of the whole

criminal transaction.” Swarb, 125 S.W.3d at 681-82 (citing Houston v. State, 832 S.W.2d

180, 183-84 (Tex. App.—Waco 1992, pet. dism’d); and Smith v. State, 949 S.W.2d 333, 337

(Tex. App.—Tyler 1996, pet. ref’d)).

       Again, we agree with the State that Montgomery’s admission to the police that he

was a drug dealer set the stage for the jury’s understanding of the entire criminal

transaction with Cavazos. See id.; see also Davis, 2011 WL 322877, at *10-11. The jury heard

evidence that Cavazos was a drug dealer and was armed and that drug dealers

commonly carry weapons. We thus cannot say that there is a “clear disparity” between

the danger of unfair prejudice posed by the evidence that Montgomery was also a drug

dealer and its probative value. Thus, the trial court did not abuse its discretion by

Montgomery v. State                                                                   Page 6
overruling Montgomery’s rule 403 objection. We overrule issue two.

       Having overruled both issues, we affirm the trial court’s judgment.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 2, 2015
Do not publish
[CRPM]




Montgomery v. State                                                          Page 7
