                         NUMBER 13-10-00491-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CONRADO VELA III,                                                           Appellant,

                                             v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 156th District Court
                          of Bee County, Texas.


                         MEMORANDUM OPINION
                  Before Justices Garza, Vela, and Perkes
                  Memorandum Opinion by Justice Perkes

      Appellant, Conrado Vela III, appeals his conviction for one count of aggravated

kidnapping, a first-degree felony, and one count of unauthorized use of a motor vehicle, a

state-jail felony. See TEX. PENAL CODE ANN. §§ 20.04, 31.07 (West 2003). A jury found

appellant guilty and sentenced him to fifty years of confinement in the Texas Department

of Criminal Justice, Institutional Division, for aggravated kidnapping and two years of
confinement for unauthorized use of a motor vehicle.                     The sentences are to run

concurrently.

        By one issue, appellant argues the trial court abused its discretion by allowing the

State to introduce testimony about extraneous offenses committed against two other

victims. 1   The testimony was elicited during the State’s redirect examination of its

witness, Amanda Zamora. We affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        On or about March 15, 2009, Kimberly Garcia, appellant’s then-girlfriend

(complainant), was visiting appellant from Abilene, Texas. Appellant and Garcia had

known each other for about three weeks. During her trip, they went to a party together in

Beeville, Texas. At the party, Garcia sat on a couch underneath a blanket because she

was cold. Appellant told Garcia, ―Let’s go,‖ and Garcia followed appellant outside to

Garcia’s truck. As they walked to the truck, appellant called Garcia a rude name and

accused her of rubbing her leg on another man’s leg, apparently while seated under the

blanket. Garcia denied this allegation.

        Garcia told appellant she was going to return home to Abilene, but appellant asked

her for a ride to his mother’s house. She agreed to let him drive her truck, but once

inside, appellant started hitting her and cursing at her. Garcia testified appellant told her

he would drive her to a remote place and kill her, and that afterwards he would have

someone kill her children. Garcia knew appellant was a gang member and that he had a


        1
          After filing appellant’s brief and arguing this case at oral argument, appellant’s court-appointed
appellate counsel filed an unopposed motion to withdraw from representation of appellant and for
appointment of new counsel. Counsel’s motion was carried with this case. We hereby grant counsel’s
motion and note the trial court has appointed substitute appellate counsel.
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gang tattoo.

        Appellant broke Garcia’s cell phone when she tried to call the police. Garcia

testified that on her third attempt to escape from the truck, she jumped out of it while it was

traveling at forty miles per hour. Appellant ripped Garcia’s shirt as he pulled it to try to

prevent her from escaping. Garcia was bloodied as a result. The shirt was admitted

into evidence at trial. Garcia ran to the nearest house, and the occupants called 9-1-1.

Garcia testified she suffered permanent injury.

        On the day after the incident, Garcia recanted and asked police to drop any

charges because appellant told her to do so. Later that weekend, she and appellant

drove to Abilene where he stayed with her for ten days. Garcia subsequently wrote

appellant a love letter.

   A.    Direct and Cross Examination of Zamora

        During the guilt-innocence phase of trial, the State called Amanda Zamora as a

witness. Zamora was another former girlfriend. Zamora testified she dated appellant

from June 2009 until October 2009. She terminated the relationship after appellant told

her that he accused Garcia of rubbing someone’s leg, that appellant hit Garcia inside the

truck, and that appellant did not let her get out of the truck, thereby forcing Garcia to jump

out of the truck to escape. Zamora testified appellant told her that he tried to run over

Garcia after she exited the truck.

        On cross-examination, Zamora testified appellant made the statement about

Garcia around October 27, 2009, but that she did not report it to the police at that time and

did not e-mail Garcia about the incident until May 2010. Defense counsel confirmed on


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cross-examination that more than six months passed before Zamora e-mailed Garcia.

Defense counsel then asked if Zamora had any other contact with Garcia. Zamora

answered: only one e-mail, some five to ten telephone conversations, and about three

meetings. The first meeting was about two days before trial and lasted an hour. The

other two meetings were in the witness room at the courthouse.

   B. The Disputed Testimony – Redirect Examination of Zamora

      After a bench conference outside the hearing of the jury, the State asked Zamora

why she contacted Garcia in May 2010. Zamora testified that she decided to contact

Garcia after learning in March 2010 of an incident involving appellant and another

woman. Zamora did not elaborate on what happened between appellant and the other

woman. She explained that after learning about the other incident, she contacted Garcia

because she felt she needed to ―put a stop to it,‖ for Garcia’s sake and her own.

      Zamora testified appellant held her against her will and beat her in October, 2009.

Appellant slapped, punched, and kneed her day and night, and in the course of doing so,

told her that he could get away with it because ―he had done it before.‖ Zamora testified

that appellant told her what he had done to Garcia.       Zamora contacted the district

attorney’s office in March 2010, and told them about her own case and in May 2010, she

encouraged Garcia to report her incident to the district attorney. Garcia came forward as

a result of Zamora’s encouragement.

                     II. STANDARD OF REVIEW AND DISCUSSION

      Appellant argues the trial court erred by admitting Zamora’s testimony about the

other woman and by allowing Zamora to testify regarding the context in which appellant


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admitted to her the aggravated kidnapping of Garcia. Appellant argues this evidence

was inadmissible extraneous-offense evidence under Texas Rules of Evidence 401

(definition of relevant evidence), 402 (admissibility of relevant evidence), 403 (exclusion

of relevant evidence), and 404(b) (inadmissibility of other wrongs to show character).

See TEX. R. EVID. 401–03; 404(b). A trial court’s ruling on the admissibility of evidence is

reviewed under an abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003). If the trial court's ruling was within the zone of reasonable

disagreement, there is no abuse of discretion.        Id.   Rarely should the trial court’s

decision be reversed and only after a clear abuse of discretion. Id.

   A.    Preservation of Error

        At oral argument, the State argued appellant only made a rule 403 objection at trial

and therefore appellant’s rule 404(b) and relevance complaints have not been preserved

for our review. We find appellant raised the relevance complaint in the trial court, but

agree with the State as to appellant’s rule 404(b) complaint. Appellant’s complaint under

Texas Rule of Evidence 404(b) was not made in the trial court and thus has not been

preserved for review. See TEX. R. APP. P. 33.1(a); Medina v. State, 7 S.W.3d 633, 644

(Tex. Crim. App. 1999) (holding relevancy objection does not preserve error concerning a

rule 404 extraneous-offense claim); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim.

App. 1993) (same).

        Twice, appellant’s trial counsel objected on relevance grounds before the

extraneous-offense evidence was admitted. At the conclusion of the bench conference

concerning the admissibility of the extraneous-offense testimony, trial counsel asked for a


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running objection that incorporated ―all the arguments that we just made on the record.‖

After clarifying the running objection would include ―all the extraneous offenses,‖ the trial

court granted trial counsel’s request for the running objection. Having carefully reviewed

the record, we conclude appellant raised a timely relevance objection to the admission of

the extraneous-offense evidence in the trial court and therefore the complaint is

preserved for our review. See Haley v. State, 173 S.W.3d 510, 515–17 (Tex. Crim. App.

2005) (discussing preservation of error for appellate review); Ethington v. State, 819

S.W.2d 854, 858–9 (Tex. Crim. App. 1991) (discussing use of running objections to

preserve error).

   B. Relevance Analysis

       Appellant argues Zamora’s testimony about an incident involving a third victim and

appellant’s abuse of Zamora was irrelevant. We disagree.

       Texas Rule of Evidence 402 provides:         ―All relevant evidence is admissible,

except as otherwise provided by Constitution, by statute, by these rules, or by other rules

prescribed pursuant to statutory authority.         Evidence which is not relevant is

inadmissible.‖ Evidence is relevant if it has any tendency to make the existence of any

fact that is of consequence to the determination of the action more or less probable than it

would be without the evidence. TEX. R. EVID. 401; Hudson v. State, 112 S.W.3d 794,

800 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Montgomery v. State, 810

S.W.2d 372, 386 (Tex. Crim. App. 1990) (op. on reh’g)). Relevance is not an inherent

characteristic of any item of evidence, but exists only as that item of evidence relates to a

matter properly provable in a case. Hudson, 112 S.W.3d at 800. Also, evidence need


                                             6
not prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides

a ―small nudge‖ towards proving or disproving a fact of consequence. Id. A witness’s

motive in providing testimony is never immaterial or collateral. Castillo v. State, 939

S.W.2d 754, 758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (citing Hooper v.

State, 494 S.W.2d 846, 848 n.1 (Tex. Crim. App. 1973)).

       Appellant’s statements to Zamora admitting what he had done to the complainant,

Garcia, were an admission by appellant of the offenses for which appellant was on trial.

See TEX. R. EVID. 801(e)(2) (setting forth that admissions by a party opponent are not

hearsay). Whether appellant actually made the admission was a fact of consequence in

determining the case against appellant.             Appellant’s cross-examination of Zamora

undermined Zamora’s claim that appellant made the admission to her in October 2009,

because she did not act on the admission until March and May 2010.                          The

cross-examination of Zamora also suggested Zamora testified about the admission

because     of   a   relationship   she   had       established   with   Garcia.    Thus,    the

extraneous-offense evidence was relevant to show Zamora’s motive in testifying at trial

and why she only acted on appellant’s admission many months after he made the

admission. See Castillo, 939 S.W.2d at 758.

       The evidence concerning the extraneous offenses was also relevant in proving

appellant’s admission of the offenses against Garcia because it rebutted appellant’s

theory of the case. Extraneous-offense evidence is relevant if it rebuts a defensive

theory. Id.; see also Bargas v. State, 252 S.W.3d 876, 890–91 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (discussing relevance of extraneous-offense evidence offered


                                                7
for non-character purposes in the context of Rule 404(b)). Appellant’s theory of the

case, as expressed in opening statement and cross examination, was that Garcia’s

claims at trial were exaggerated and that appellant and Garcia simply argued or, at most,

appellant committed a far less serious offense such as simple assault, ―terroristic threat,‖

unauthorized use of a motor vehicle and/or unlawful restraint. In defense counsel’s

opening statement and cross-examination of Garcia, she emphasized Garcia dropped

her charges against appellant the day after the alleged offenses.                    During

cross-examination, defense counsel elicited testimony from Garcia that she recanted her

allegations against appellant. Defense counsel also emphasized that later the same

weekend after the aggravated kidnapping, Garcia traveled in the same truck with

appellant to her home in Abilene, where she stayed with appellant for ten days.

       In defense counsel’s opening statement, she also told the jury about post-incident

―love letters‖ and examined Garcia about a love letter she wrote to appellant in April 2009.

Defense counsel questioned Garcia about why the violence she described at trial seemed

greater than that she first reported to police and whether she was arguing with appellant

at the driver side door of her truck immediately after the alleged aggravated kidnapping.

In light of the defensive theory that Garcia was an exaggerating ex-girlfriend who lacked

credibility for not promptly coming forward as a victim, evidence tending to show appellant

admitted the offenses to Zamora was relevant. See Bass v. State, 270 S.W.3d 557, 563

(Tex. Crim. App. 2008) (holding evidence of extraneous sex offenses was admissible to

rebut defensive theory that complainant’s accusations were fabricated where

complainant made police report more than ten years after incidents on hearing her cousin


                                             8
was also a victim). Zamora’s nominal testimony about learning of a third woman in

March 2010 and the context of appellant’s admission concerning Garcia, was relevant to

rebut the defense’s theory of the case, by showing why Zamora waited several months to

come forward and showing Zamora’s impetus for coming forward about appellant’s

admission.

   C. Rule 403 Analysis

       Having determined that the extraneous-offense evidence was relevant, we

consider whether it should have been excluded under Rule 403. See TEX. R. EVID. 403.

It is a firmly-rooted principle of criminal law that an accused only be tried for the offense

charged and not for being a bad person or a criminal generally. See Hudson, 112

S.W.3d at 800. Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence. TEX. R. EVID. 403.

       Courts should balance the following factors under a Rule 403 analysis: (1) the

strength of the evidence in making a fact more or less probable, (2) the potential of the

extraneous-offense evidence to impress the jury in some irrational but indelible way, (3)

the amount of time the proponent needed to develop the evidence, and (4) the strength of

the proponent’s need for this evidence to prove a fact of consequence. Bargas, 252

S.W.3d at 892–93 (citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)).

When, as in this case, the record is silent as to the trial court's balancing of these factors,

we presume the trial court conducted the balancing test. See id.


                                              9
        The first factor, the strength of the evidence to make a fact of consequence more

or less probable, weighs strongly in favor of admissibility. Appellant’s admission of the

offenses for which he was on trial was significant and the admission was more likely in

light of Zamora’s testimony concerning her motive for finally acting on appellant’s

admission. The extraneous-offense evidence was probative to rebut appellant’s theory

that Zamora had testified to the admission because of her relationship with Garcia and

that Garcia’s claims were the exaggerations of an ex-girlfriend. See id. at 893. As to

the second and third factors, though there was danger of impressing the jury in an

indelible way and Zamora’s extraneous-offense testimony carried some emotional

weight, the trial court offered appellant a contemporaneous limiting instruction 2

concerning the purpose of the evidence, and the testimony was very brief and

non-graphic. In particular, the testimony concerning the third victim was minimal. The

second and third factors weigh in favor of admissibility of the extraneous-offense

evidence. See id. The fourth factor, requiring balancing the State’s need for such

extraneous-offense evidence, also weighs in favor of admissibility because, as set forth

above, proving appellant’s admission was significant to the State’s case in light of the

defense’s portrayal of the complainant as an exaggerating ex-girlfriend. See id.

        We conclude the trial court did not abuse its discretion by overruling appellant’s

relevance and rule-403 objections to the extraneous-offense testimony elicited from

        2
            No limiting instruction concerning the extraneous-offense testimony was given at or near the
time Zamora’s extraneous-offense testimony was received in evidence. See TEX. R. EVID. 105(a) (limited
admissibility); Hammock v. State, 46 S.W.3d 889, 893–95 (Tex. Crim. App. 2001) (discussing time and
procedure for obtaining a limiting instruction). The jury charge included a general limiting instruction that
any extraneous-offense testimony could only be considered if it found beyond a reasonable doubt that
appellant committed the extraneous offense and that such evidence could only be considered in
determining appellant’s motive, opportunity, intent, preparation, plan, or knowledge, if any, in connection
with the charged offense(s). See TEX. R. EVID. 404(b).
                                                    10
Zamora on re-direct examination. Appellant’s sole issue on appeal is overruled.

                                    III. CONCLUSION

      We affirm the trial court’s judgment.


                                                   GREGORY T. PERKES
                                                   Justice


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

Delivered and filed the
25th day of August, 2011.




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