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.

      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


                                         2
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 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


                                         3
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

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

sentences running concurrently. This appeal followed.


                                           4
                        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).

      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


                                          5
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,

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

TEX. R. EVID. 403.




                                           6
      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




                                          8
described it 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


                                        10
purposes of the Code is to ensure the public 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
