                                       In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-13-00169-CR
                              ___________________

                   DANIEL FRANK LONGORIA JR., Appellant

                                         V.

                         THE STATE OF TEXAS, Appellee

_______________________________________________________           ______________

                      On Appeal from the 221st District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-05-05213-CR
________________________________________________________            _____________

                            MEMORANDUM OPINION

      Appellant Daniel Frank Longoria Jr. (Longoria) 1 was convicted for the

murder of Raymundo Zarate Jr. (Zarate). On appeal, Longoria raises two issues,

both pertaining to the trial court’s admission of certain GPS evidence from an

ankle monitor that he was wearing at the time of the murder. He contends that the

trial court erred because the evidence was inadmissible under Rules 403 and

404(b) of the Texas Rules of Evidence.


      1
          The indictment states “Daniel Frank Longoria, Jr. AKA Daniel Longoria[.]”
                                          1
      We overrule both issues and affirm the judgment.

                                BACKGROUND FACTS

      On or about the evening of May 13, 2012, Zarate was shot and killed in the

front yard of his home. Earlier that day, Zarate was at a local park with his family

when he and another man (later identified as Longoria) got into an argument. The

argument developed after Zarate suggested that Longoria should leave the

basketball court area in the park. Zarate’s son testified that Zarate did not want

Longoria near Zarate’s family because Longoria was cursing and appeared to be

drunk. Later that evening, Longoria and his girlfriend, his girlfriend’s daughter,

and Longoria’s son drove to Zarate’s residence to continue the argument. Zarate

was shot and killed at his residence.

      On the day of the shooting, Longoria was wearing a GPS tracking device

placed on him as a requirement of his bond under a different offense out of Fort

Bend County, Texas. After the shooting, Longoria fled the scene. He removed the

GPS tracking device within two hours of the murder of Zarate. Over a month after

the shooting, the police located Longoria and arrested him for the murder of

Zarate.

      During the murder trial, the prosecution sought to introduce evidence from

the GPS device (including the GPS coordinates and mapping, as well as a video

relating to the GPS) to establish that Longoria was at the park, that he was in
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Zarate’s neighborhood after the incident at the park, that he was at the scene at the

time of the shooting, and that he fled from the scene and disconnected his GPS.

Longoria challenged the GPS evidence. Outside the presence of the jury, the trial

court held a hearing specifically relating to the GPS evidence, and Longoria voiced

the following objections:

      [Defense Counsel]: And, Judge, I just have two objections for the
      record. The first being that any mention of global positioning system
      at all in the inference will immediately be from the jury that
      something bad has happened, he has another offense, somebody in the
      government is watching him for a reason. That is our first objection.
            The second objection is any of the documents he brought with
      him are not business records.
            ....
            So my first objection is any mention of GPS obviously would
      have the effect of the government is watching him, there has got to be
      a reason and it has got to be bad. And, two, to admit these documents
      as business records, as far as to admit items that are prepared
      purposely and surely for litigation, and not in the regular course of
      business.

The trial court overruled the objections and it allowed the admission of evidence

from the GPS tracking device, but it did not allow into evidence any testimony or

evidence regarding the reason for Longoria’s having to wear the device.

                                 ISSUES ON APPEAL

      On appeal, Longoria makes no complaint about whether the documents were

business records. Rather, Longoria argues that the trial court erred in overruling his

objections to the GPS evidence pursuant to Rule 404(b) and Rule 403. See Tex. R.

                                          3
Evid. 404(b), 403. Specifically, he contends on appeal that the GPS evidence was

inadmissible evidence of other crimes, wrongs, or acts. Further he contends it was

more prejudicial than probative and that it was “cumulative evidence.” The State

contends Longoria failed to preserve an objection under either Rule 404(b) or Rule

403. See Tex. R. App. P. 33.1(a).

      To preserve error for appellate review, a party’s objection generally must be

sufficiently specific so as to “‘let the trial judge know what he wants, why he

thinks himself entitled to it, and do so clearly enough for the judge to understand

him at a time when the trial court is in a proper position to do something about it.’”

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d)

(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). In order

to raise a Rule 403 complaint, the objecting party must make a 403 objection

separate from its Rule 404(b) objection. See Montgomery v. State, 810 S.W.2d 372,

389 (Tex. Crim. App. 1991) (op. on reh’g).

      After reviewing the record, we conclude that Longoria preserved a Rule

404(b) objection at trial when he challenged the admission of the evidence on the

grounds that the GPS evidence (a) referred to another offense he allegedly

committed and (b) implied he was being watched for other reasons or because he

was bad.


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      As to the Rule 403 objection, the State specifically acknowledged during the

hearing on the admissibility of the GPS evidence that the defendant was objecting

to the “prejudicial nature” of the GPS evidence, and the trial court expressly found

that the probative value of the evidence “outweighs the prejudicial effect, as long

as you limit it to the fact that he had this monitor and here is the data.”

Accordingly, an objection regarding the “prejudicial nature” of the GPS under

Rule 403 was before the trial court. Longoria, however, failed to articulate any

objection that the evidence was “a needless presentation of cumulative evidence[,]”

and there is no indication in the record that the trial court made a “cumulative

evidence” ruling. Therefore, we conclude that Longoria failed to preserve the

“cumulative evidence” argument for appeal. See Tex. R. App. P. 33.1

                              STANDARD OF REVIEW

      We review a trial court’s decision to admit evidence under Rules 404(b) and

403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of

reasonable disagreement,’ there is no abuse of discretion, and the trial court’s

ruling will be upheld.” Id. (quoting Montgomery, 810 S.W.2d at 391). If the trial

court’s decision is correct on any theory of law applicable to the case, we will

uphold the decision. De La Paz, 279 S.W.3d at 344.


                                         5
                                    RULE 404(b)

      On appeal, Longoria argues that the GPS evidence constitutes “character

evidence” or evidence of an “extraneous act” and that it was inadmissible under

Rule 404(b). Longoria contends that the “only true purpose” of the GPS evidence

was “to show the jury that [he] has committed, or is alleged to have committed, a

crime in another county, thereby prejudicing the jury[.]”

      Rule 404(b) expressly provides that evidence of other crimes, wrongs, or

acts is not admissible to prove the character of the defendant in order to show he

acted in conformity therewith. Rule 404(b) codifies the common law principle that

a defendant should be tried only for the offense for which he is charged and not for

being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim.

App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)

(explaining that the defendant is generally to be tried only for the offense charged,

not for any other crimes).

      Extraneous offense evidence, however, may be admissible for other

purposes such as proof of motive, opportunity, intent, preparation, plan,

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

list of examples in Rule 404(b) is nonexhaustive. See Prible v. State, 175 S.W.3d

724, 731 (Tex. Crim. App. 2005). For example, extraneous offense evidence may

be admissible to demonstrate conduct by a defendant that indicates a consciousness
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of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no

pet.); see also Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980)

(“Flight is evidence of guilt.”). This consciousness-of-guilt evidence may include

evidence of a person’s conduct (such as “flight” or destruction of evidence) that

occurs subsequent to the commission of a crime. See Torres, 794 S.W.2d at 598-

600. Such evidence is relevant to prove that the person committed the act with

which he is charged. Id. An extraneous offense may also be admissible to show

identity when identity is at issue in the case, or when the defense cross examines

witnesses or alleges that someone else committed the crime. See Page v. State, 213

S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996). “Whether extraneous offense evidence has relevance apart

from character conformity, as required by Rule 404(b), is a question for the trial

court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial

court’s Rule 404(b) ruling admitting evidence is generally within the zone of

reasonable disagreement “if there is evidence supporting that an extraneous

transaction is relevant to a material, non-propensity issue.” Devoe v. State, 354

S.W.3d 457, 469 (Tex. Crim. App. 2011).

      Texas courts utilize a two-step analysis for determining the admissibility of

extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts

determine first whether the evidence is relevant to a material issue in the case and
                                         7
second whether the relevant evidence should be admitted as an exception to Rule

404(b). Id. The GPS evidence is relevant to material issues in the case, such as the

perpetrator’s identity, his flight, and his consciousness of guilt, because this

evidence establishes Longoria’s movements (both before and after the murder), as

well as the timing of his removal of the GPS device. Accordingly, the trial court

did not commit error in allowing the GPS evidence into the record because it was

admissible for purposes other than character conformity under Rule 404(b). We

overrule issue one.

                                     RULE 403

      Longoria also argues the GPS evidence was inadmissible under Rule 403.

Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. The

Rule 403 balancing factors include, but are not limited to, the following: (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. Hernandez v. State, 390 S.W.3d 310, 324

(Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.

2006). The rules of evidence favor the admission of relevant evidence and carry a
                                         8
presumption that relevant evidence is more probative than prejudicial. Jones v.

State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).

      We conclude that the trial court did not err in its balancing of the Rule 403

factors and in finding that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice under Rule 403. The State articulated

a need for the evidence and the GPS evidence occurred close in time to the charged

offense. The probative value of the GPS evidence (showing Longoria’s movements

and actions immediately before, during, and after the commission of the crime)

was significant, because this evidence was relevant to establishing the identity

element of the crime. In establishing Longoria’s flight after the murder, the GPS

evidence demonstrated his consciousness of guilt, and tended to rebut the

defendant’s misidentification theory of defense developed by the defendant during

the cross-examination of one of the State’s witnesses and during the defendant’s

closing argument. Although the State spent some time during the trial on the

presentation of the GPS evidence, the amount of time was not unreasonable in light

of other evidence presented during the trial as a whole. Furthermore, due to the

nature of the technical details and technology involved, it was not the type of

information that might otherwise cause an inflammatory response. We conclude

the trial court did not abuse its discretion in admitting the GPS evidence in this

case. It was within the zone of reasonable disagreement for the trial court to find
                                         9
that the probative value of the evidence was not substantially outweighed by the

danger of unfair prejudice. Therefore, we overrule issue two.

       Having overruled both of appellant’s issues, we affirm the judgment of the

trial court.

       AFFIRMED.

                                               ___________________________
                                                    LEANNE JOHNSON
                                                         Justice


Submitted on April 24, 2014
Opinion Delivered June 25, 2014
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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