Opinion issued May 16, 2019




                                       In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               No. 01-18-00065-CR
                               No. 01-18-00066-CR
                            ———————————
                         SHAWN AMENDE, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                On Appeal from the 450th District Court1
                         Travis County, Texas
       Trial Court Case Nos. D-1-DC-16-904086, D-1-DC-16-904087




1
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred this appeal from the Court of Appeals for the Third District of Texas to
     this Court. See Misc. Docket No. 18–9010, Transfer of Cases from Courts of
     Appeals (Tex. Jan. 12, 2018); see also TEX. GOV’T CODE § 73.001 (authorizing
     transfer of cases). We are unaware of any conflict between precedent of that court
     and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
                          MEMORANDUM OPINION

      Shawn Amende drove a car that collided with another vehicle, killing its

driver. He appeals his convictions for intoxication manslaughter with a deadly

weapon and aggravated assault with a deadly weapon. See TEX. PENAL CODE

§§ 1.07(a)(17)(b) (deadly weapon); 22.02 (aggravated assault), 49.08 (intoxication

manslaughter). The jury assessed punishment at 28 years’ imprisonment and 5 years’

imprisonment, respectively. The court rendered judgments of conviction on the

jury’s verdicts with the sentences running concurrently. On appeal, he contends that

the trial court erred by admitting evidence of an extraneous bad act. We disagree and

affirm.

                                    Background

      On April 12, 2015, Amende drank margaritas and tequila shots with his

girlfriend and her coworker at a restaurant in Austin. He became so intoxicated that

he passed out on the table. When they left the restaurant, Amende declined a ride

home and drove his car with his girlfriend in the passenger seat at a rate of over 100

miles per hour. He ran many red lights before hitting a car driven by Maleeca Smith.

Smith died at the scene before emergency personnel could arrive. Amende testified

that he was in a blackout state and did not remember driving.




                                          2
      Amende pleaded guilty to intoxication manslaughter for the death of the other

driver and aggravated assault against his girlfriend who was in his car. He also

pleaded true to an enhancement based on a prior felony conviction. He elected for a

jury to decide whether he used a deadly weapon, specifically a car during, the

commission of the crimes and to decide his punishment.

      Before making its decisions, the jury heard testimony from Amende’s

girlfriend’s coworker, describing her observations of Amende at the restaurant and

as he began driving home. The jury heard from other bystanders who observed the

accident.

      Police officers and responding medical personnel described their observations

at the scene and Amende’s demeanor after the collision. Amende’s blood alcohol

level in a sample taken about an hour after the accident was 0.204. His blood also

tested positive for marijuana.

      A vehicular homicide detective trained as a crash reconstructionist concluded

that, just before the collision, Amende’s car was traveling at 90 miles per hour and

Smith’s speed was 45 miles per hour. The detective testified that Amende’s vehicle

could cause serious bodily injury or death.

      The State introduced evidence of Amende’s criminal history, including

misdemeanor marijuana convictions and a 2006 felony conviction for possession of

cocaine. The State played clips of Amende’s phone calls from jail and videos of his


                                         3
jail visits with friends and family. In the clips Amende appeared to joke about going

to treatment, made derogatory comments about the victim’s family, and suggested

more fatal drunk driving incidents reported in the news would normalize what had

happened for potential jurors.

      Defense witnesses testified that, while released on personal bond, Amende

completed a 90-day inpatient drug and alcohol program and a 9-week outpatient

program. A pretrial services officer testified that Amende had no violations and wore

a GPS ankle monitor. He also wore a device that could detect if he ingested alcohol.

At the time of trial, he had worn the device for 787 days without violation.

      The defense called several character witnesses who described Amende’s

troubled upbringing and remorse. Amende’s girlfriend testified; she was the victim

of the aggravated assault. Amende also took the stand in his own defense. He

described his unstable childhood, his criminal history including a prior felony

conviction for cocaine possession, and his previous incarceration. He explained his

recollection of the evening of the fatal collision and his rehabilitative efforts since

the crash. He admitted he had been dealing drugs. He also admitted that he had been

a felon in possession of a firearm.

      The jury found Amende guilty of intoxication manslaughter with a deadly

weapon and assessed punishment at 28 years’ imprisonment. The jury also found

him guilty of aggravated assault with a deadly weapon and assessed punishment at


                                          4
5 years’ imprisonment. The court rendered judgments in both cases, with the

sentences running concurrently. This appeal followed.

                         Admission of Extraneous Offense

      In his sole issue, Amende argues that the trial court erred by admitting

evidence of an extraneous offense during the punishment phase of trial. He argues

that evidence that he possessed a gun after he had been convicted of a felony should

not have been admitted. We disagree.

A.    Standard of Review

      We review a trial court’s decision to admit extraneous offense evidence during

the punishment phase of trial under an abuse of discretion standard. Mitchell v. State,

931 S.W.2d 950, 953 (Tex. Crim. App. 1996). A trial court abuses its discretion if it

acts arbitrarily, unreasonably, or without reference to any guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When

considering a trial court’s decision to admit evidence, we will not reverse the trial

court’s ruling unless it falls outside the “zone of reasonable disagreement.” Green v.

State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We

will uphold a trial court’s evidentiary ruling if it is correct on any theory of law

applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009).




                                           5
      Article 37.07 of the Code of Criminal Procedure provides that during the

punishment phase of trial, evidence as to any matter deemed relevant to sentencing

may be admitted, including evidence of an extraneous offense shown beyond a

reasonable doubt to have been committed by the defendant. TEX. CODE CRIM. PROC.

art. 37.07, § 3(a)(1). Evidence is relevant to sentencing if it is “helpful to the jury in

determining the appropriate sentence for a particular defendant in a particular case.”

Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). This includes but

is not limited to evidence regarding an extraneous crime or bad act for which the

defendant could be held criminally responsible, regardless of whether he has

previously been charged with or finally convicted of the crime or act. TEX. CODE

CRIM. PROC. art. 37.07, § 3(a)(1). Prior crimes or bad acts are introduced to provide

additional information that the jury may consider in determining what sentence the

defendant should receive. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).

      Although the trial court has wide latitude in determining the admissibility of

punishment-phase evidence, the evidence must still satisfy Texas Rule of Evidence

403. Lamb v. State, 186 S.W.3d 136, 143 (Tex. App.—Houston [1st Dist.] 2005, no

pet.); see also Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).

Relevant evidence may be excluded pursuant to Rule 403 if “its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,




                                            6
misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

TEX. R. EVID. 403.

      When a party objects under Rule 403, the reviewing court weighs several

factors in deciding admissibility including: “(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.”

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); see also Gigliobianco

v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (listing factors courts

consider when conducting a Rule 403 balancing test); Sunbury v. State, 88 S.W.3d

229, 235 (Tex. Crim. App. 2002) (suggesting in dicta that these factors also apply to

Rule 403 decisions on punishment evidence). Rule 403 favors the admission of

relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App.

1996). The rule requires exclusion of evidence only when there is a clear disparity

between the danger of unfair prejudice and the probative value of the evidence. Id.

The trial court is presumed to have conducted the proper balancing test if it overrules

a Rule 403 objection, regardless of whether it conducted the test on the record. See

Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997); Parmer v. State,

38 S.W.3d 661, 670 (Tex. App.—Austin 2000, pet. ref’d).




                                           7
B.    Analysis

      The trial court did not abuse its discretion in admitting evidence that Amende

had possessed a gun after a felony conviction.

      Before the punishment hearing, the court held a pretrial hearing on Amende’s

motion to suppress evidence of extraneous conduct. At the hearing, Amende sought

to suppress evidence that on November 11, 2012, he shot and killed another person.

The victim came to Amende’s home to purchase marijuana but robbed him instead.

The grand jury did not issue an indictment. The trial court ruled that evidence of this

incident and the fact that the grand jury did not issue an indictment were not

admissible.

      Amende testified at the punishment hearing. He stated that he was convicted

of felony possession of cocaine in 2006, sentenced to five years’ imprisonment, and

paroled after two years. He also had prior marijuana misdemeanor convictions.

Amende stated that he was selling drugs when arrested for possession of cocaine,

and the amount of cocaine he had with him when arrested was more than for personal

use. After he was released on parole, he struggled to find employment and

participated in medical trials for money. About two years after his release, he

returned to selling marijuana. Eventually, he began working for a moving company,

where he worked at the time of the accident and at the time of trial. He described it




                                          8
as “hard work” that left him with a “good feeling” of exhaustion at the end of each

work day.

      After his testimony, the State requested a hearing outside the presence of the

jury. The State urged the court to reconsider its earlier evidentiary rulings. The State

argued that evidence that Amende had possessed a gun, continued to sell drugs after

his release from prison, and had spent a large amount of money around the time of

the collision should be admissible because Amende’s testimony left a false

impression with the jury that he was “some sort of upstanding citizen working hard

at a blue-collar job.” Over Amende’s objection, the court agreed that the jury had

been left with an impression that Amende was “selling a little bit of marijuana to get

by” and allowed the State to question him regarding expensive jewelry he purchased

and his possession of a gun as “part and parcel” of his drug dealing. The trial court

ruled that the probative value of the evidence of possession of a firearm outweighed

its prejudicial nature. The court did not allow the State to mention the 2012 shooting

or grand jury no-bill.

      On cross-examination, Amende admitted that after he was released from

prison, he returned to selling drugs, including selling a pound of marijuana. He

admitted that he had possessed a firearm as a felon, which is a third-degree felony.

He sold drugs until the date of the fatal collision, he purchased expensive jewelry




                                           9
for his girlfriend, and he made an $8,000 car payment in cash, totaling about $20,000

in cash expenditures.

      The trial court could have reasonably concluded that Amende’s extraneous

conduct had high probative value. At trial, Amende testified that he was a felon in

possession of a firearm, a third-degree felony. See TEX. PENAL CODE § 46.04

(unlawful possession of a firearm). Because this was an act for which he could have

been held criminally responsible for, the trial court could have reasonably concluded

that the extraneous conduct had probative value in determining what sentence he

should receive. See Fields, 1 S.W.3d at 688 (citing TEX. CODE CRIM. PROC. art.

37.07, §3(a)) (stating prior crimes or bad acts give the jury additional information

that they may use to determine punishment).

      The court could have reasonably determined that the State had a specific need

to introduce the evidence. The testimony clarified Amende’s actions by describing

the extent of his drug dealing. The testimony rebutted the defense’s characterization

that Amende sold small amounts of marijuana after struggling to make a living as a

clinical research study subject. It also rebutted the characterization that he supported

himself solely as a hardworking mover. The State needed the evidence to give the

jury a more accurate impression of the likely recurrence of criminal behavior and to

help the jury determine what sentence Amende should receive. See TEX. PENAL

CODE § 1.02 (explaining one of the purposes of the Code is to ensure the public


                                          10
safety by “such punishment as may be necessary to prevent likely recurrence of

criminal behavior”); see also Fields, 1 S.W.3d at 688.

      The trial court did not abuse its discretion in deciding that the probative value

outweighed the risk of unfair prejudice. The evidence’s “legitimate purpose” was to

allow the jury to properly consider Amende’s punishment. Fowler v. State, 126

S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (“Evidence of defendant’s

prior assaults certainly had a tendency to cause a jury to increase his punishment.

But that was its legitimate purpose. The value of the extraneous offense evidence

was in permitting the jury to tailor the sentence to the defendant.”) The trial court

allowed the State to question Amende regarding gun possession but did not allow

the State to question him about the related no-billed homicide. The record

demonstrates that the court was aware of the potential risk of unfair prejudice and

tailored the evidentiary ruling to avoid it.

      For the same reasons, the trial court did not abuse its discretion in determining

that the evidence would not impress the jury in “some irrational, yet indelible way.”

Erazo, 144 S.W.3d at 489. The jury could separate the brief testimony about gun

possession before the incident from testimony from multiple witnesses about the

collision and its aftermath.




                                           11
      We hold that the trial court acted within its discretion by admitting evidence

that Amende was a felon in possession of a firearm. See Mitchell, 931 S.W.3d at

953; see also Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

      We overrule Amende’s sole issue on appeal.

                                   Conclusion

      We affirm the trial court’s judgments.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           12
