                                  NO. 07-04-00280-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  NOVEMBER 2, 2005



                            BRIAN CAVAZOS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                      ___________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2002-401,544; HONORABLE CECIL PURYEAR, JUDGE

                    _______________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, J.J.


                               MEMORANDUM OPINION


       Appellant, Brian Cavazos, appeals from convictions in two paragraphs for two

separate charges of burglary of a habitation with intent to commit sexual assault and

resulting punishments of confinement for a period of ten years probated for a period of ten

years and a fine of $7,500.00, not probated, on each paragraph. By three issues,

appellant contends that the trial court erred in (1) denying appellant’s motion to suppress

oral statements made by appellant concerning extraneous bad acts because the same
were irrelevant, (2) admitting the investigating officer’s testimony concerning the

statements of appellant about extraneous bad acts when offered, pursuant to Texas Rule

of Evidence 404(b), to prove identity, and (3) admitting the investigating officer’s testimony

concerning appellant’s statements about extraneous bad acts because the probative value

of said statements was substantially outweighed by the danger of unfair prejudice, in

violation of Texas Rule of Evidence 403.1 We affirm the judgment.


                                   Factual Background


      On June 23, 2002, Jennifer Bittle and Amber Slayton (collectively, the victims) were

at Bittle’s apartment when, at approximately 3:30 a.m., someone knocked on the

apartment door. When Bittle answered the knock, the person, whom the victims did not

know, asked if this was where the party was at. The person then forced his way inside the

apartment. The intruder told the victims that he had a gun and demanded their money.

After the victims informed the intruder that they had no money, the intruder advised the

victims that he had always had a fantasy about having sex with a white woman. The

intruder then ordered the victims to disrobe. The victims refused to disrobe and were

successful in diverting the intruder’s attention to other matters. Eventually, the intruder

agreed to leave and showed the victims that he did not have a gun. The intruder obtained

a promise from the victims that they would not call the police and, after getting a hug from

each, left the scene.




       1
        Further reference to provisions of the Texas Rules of Evidence will be by reference
to “Rule __.”

                                             -2-
       On August 16, 2002, the victims were at the Midnight Rodeo nightclub where they

saw appellant and agreed that he was the intruder of June 23rd. The victims notified the

police who spoke with, but did not arrest, appellant.         Subsequently, appellant was

contacted by Detective Rick Calderon of the Lubbock Police Department. Calderon asked

appellant to come to the station to talk to him. While visiting with Calderon, appellant

stated that he had previously gone to apartments requesting directions to parties.

Appellant was not detained after this initial interview, but was later asked to come back to

sign a statement, which he refused to do.


       Before trial, appellant filed a motion to suppress the statements he had made to

Calderon. Following a hearing, the trial court denied the motion. At trial, appellant

vigorously contested the victims’ identification of him as the intruder. Appellant argued that

he did not meet the description of the intruder that the victims gave soon after the incident.

Appellant renewed his objection to testimony about the statements he made to Calderon

and challenged the State’s position that these statements were direct evidence of the

charged offenses.


                                    Rules 401 and 402


       Appellant’s first issue contends that Calderon’s testimony relating appellant’s oral

statements was not relevant to any issue before the jury and, therefore, was inadmissible

under Rules 401 and 402. On appeal, the trial court’s decision to admit evidence is

reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760

(Tex.Crim.App. 2002). As long as the trial court’s ruling is within the zone of reasonable


                                             -3-
disagreement, the appellate court will not intercede. Montgomery v. State, 810 S.W.2d

372, 391 (Tex.Crim.App. 1990) (op. on reh’g). It is only where the appellate court can say

with confidence that by no reasonable perception of common experience can it be

concluded that the proffered evidence has a tendency to make the existence of a fact of

consequence more or less probable than it would otherwise be that the trial court has

abused its discretion in admitting the evidence. Id.


       As defined by Rule 401, relevant evidence is evidence that has 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. Rankin v. State, 974

S.W.2d 707, 718 (Tex.Crim.App. 1998).               Appellant’s argument is that Calderon’s

testimony relayed information that would be known to any resident of Lubbock and,

therefore, would not be of such a nature as to make a fact of consequence more probable

and, accordingly, was not relevant. While this may be a fair characterization of that portion

of the testimony as it relates to the location of the apartment in question, the entirety of the

testimony must be considered. Appellant’s statements to Calderon indicated that (1) he

went to apartments looking for a party, (2) the apartments were in the same area as the

Brentwood Apartments, where the crime occurred, (3) the apartment was occupied by two

white females, (4) the hair color of the females matched that of the victims, (5) he entered

without permission, and (6) upon leaving, he had asked for a hug. We conclude that the

similarities between the event described by appellant and the victims’ description of the

crime are sufficient that this evidence makes it more probable that appellant committed the




                                              -4-
charged offense. Therefore, we cannot say that the trial court abused its discretion in

admitting the evidence.


       Having determined that the evidence was relevant, appellant’s argument that

Calderon could not specify the time or place of the event appellant described goes to the

weight to be given the evidence rather than to its admissibility. However, the fact finder is

the exclusive judge of the weight to be given the evidence and we may not disturb the

jury’s determination absent a showing that the verdict is so against the great weight of the

evidence as to be clearly wrong or unjust. TEX . CODE CRIM . PROC . ANN . § 38.04 (Vernon

2005); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). Appellant’s contention

does not meet this high burden.


       We cannot say that the trial court’s decision to admit Calderon’s testimony was an

abuse of discretion. Appellant’s first issue is overruled.


                                        Rule 404(b)


       Appellant next contends that the testimony of Calderon was admitted as an

exception to Rule 404(b) and was admitted to prove identity. Appellant’s argument is that

the testimony of Calderon lacked the similarity of characteristics to the charged offense to

mark the acts as appellant’s handiwork. To support this proposition, appellant cites the

court to Bishop v. State, 869 S.W.2d 342 (Tex.Crim.App. 1993). While Bishop does stand

for the proposition put forth by the appellant, appellant’s reliance on it is misplaced. The

State maintained throughout the trial that the testimony of Calderon was direct evidence



                                             -5-
of the crime that also tended to prove identity. Appellant seems to believe that since the

State’s brief, filed in response to the brief filed by appellant in support of his motion to

suppress, indicated that the State needed the testimony to prove the issue of identity, the

testimony must be of an extraneous bad act. However, a close review of the record

discloses that the appellant’s only trial arguments regarding Calderon’s testimony was that

the evidence was not admissible because of a lack of relevancy, pursuant to Rules 401

and 402, and that, even if relevant, the testimony was substantially more prejudicial than

probative, in contravention to Rule 403. Nowhere in the brief filed with the trial court did

appellant argue that the evidence was extraneous evidence of other bad acts and we will

not impute to the State the position that the evidence was of an extraneous bad act.

Throughout the trial, the State maintained that the evidence was direct evidence that

tended to prove appellant was at the scene of the crime on the night in question rather than

evidence of extraneous events.


       The case before the court is more akin to the factual situation found in Henderson

v. State, 962 S.W.2d 544 (Tex.Crim.App. 1997). At issue in Henderson was the testimony

of a witness that the appellant had admitted that she had committed a murder. The

appellant in Henderson, much like the appellant in the instant case, contended that the

testimony was of an extraneous offense unrelated to the charged offense. However, again

as in the case before us, the State contended that the testimony related to the principal

offense and was admissible as an admission. The court in Henderson agreed with the

State and ruled that the testimony could rationally be viewed by a jury as an admission to

committing the offense at trial. Id. at 567.


                                               -6-
       We are of the opinion that the testimony regarding appellant’s statements could

have rationally been viewed by the jury as an admission and, therefore, the admission of

this evidence did not violate Rule 404(b). Appellant’s second issue is overruled.


                                         Rule 403


       Appellant’s final contention is that, even if the testimony of Calderon was admissible

as an extraneous act to prove identity, the probative value of the testimony was far

outweighed by its prejudicial impact. The entire thrust of appellant’s issue assumes that

the evidence was admitted as an extraneous bad act. As we have already rejected that

proposition, we overrule appellant’s third issue.


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                   Mackey K. Hancock
                                        Justice




Do not publish.




                                             -7-
