                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 AARON RASHAUN BROWN,                                           No. 08-10-00121-CR
                                                §
                   Appellant,                                      Appeal from the
                                                §
 V.                                                          213th Judicial District Court
                                                §
 THE STATE OF TEXAS,                                          of Tarrant County, Texas
                                                §
                   Appellee.                                      (TC# 1192910R)
                                                 §

                                                 §

                                          OPINION

       Aaron Rashaun Brown was convicted of possession with intent to deliver a controlled

substance, methamphetamine, four grams or more, but less than four hundred grams. He was

sentenced to 40 years’ imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, he raises three issues challenging the admissibility of certain

evidence introduced by the State during the punishment phase. Appellant argues that the trial

court abused its discretion by admitting the evidence in violation of Texas Rule of Evidence

Rule 403.

       On October 10, 2008, Officer David Martin stopped a vehicle in which Appellant was a

passenger. As he approached the vehicle, the officer smelled unburnt marijuana. During a

subsequent search of the passenger compartment, Officer Martin located methamphetamine, in

the form of ecstasy pills, and a loaded firearm. Appellant was ultimately convicted of possession

with intent to deliver a controlled substance, between four and four hundred grams. The jury also
found that Appellant had used or exhibited a deadly weapon during the commission of the

offense.

       During the punishment phase of the trial, the State introduced evidence pertaining to the

murder of Mr. Charles Goodacre. Detective Benjamin Lopez testified that Mr. Goodacre was

shot in the head during a gang-related drive-by shooting. During the investigation of

Mr. Goodacre’s murder, Detective Lopez learned that Appellant was present during the shooting.

The detective explained that the investigation had led officers to believe that Appellant may have

taunted or encouraged the shooter, and that the shot that killed Mr. Goodacre was likely intended

for Appellant. When Detective Lopez inquired about Appellant with officers assigned to the

department’s gang unit, those officers confirmed Appellant was a gang member.

       Detective Lopez called Appellant in for an interview. During the interview, Appellant

told the detective that he agreed to talk to the police only because he was afraid they would make

up a reason to arrest him if he refused to cooperate. Appellant was clear that his presence at the

interview was out of fear, and not because he wanted to tell the officers what he saw the day of

the shooting. For the first twenty minutes of the interview, Appellant refused to discuss the

shooting with Detective Lopez, and repeatedly asked what the police would do for him if he

cooperated and identified the shooter. During his testimony at punishment, Detective Lopez

noted that Appellant did not seem concerned with the fact that an innocent person had been

murdered.

       When he did answer the detective’s questions, Appellant told the officer that he had

recognized the person driving the vehicle the night of the shooting, and that he knew that

individual was a member of a rival gang. Appellant explained that when he saw the car drive


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past, he started laughing and blowing kisses towards the vehicle. Appellant watched a person

shoot at him from the backseat of the vehicle. Appellant told Detective Lopez that he did not

know the man who was shot, but he admitted that he knew another person was shot in the face

when the bullet missed him. A video recording of the interview was admitted into evidence as

State’s Exhibit 43. Several other witnesses testified for the State during punishment, including

Mr. Goodacre’s father, who testified about his son and the impact his son’s death had on their

family.

          Prior to the introduction of the evidence at punishment, Appellant objected to any

evidence concerning the murder case based on the theory that the evidence was irrelevant, and if

there was any relevance at all, its probative value was outweighed by the unfair prejudice. The

State responded to the objection on the basis that the evidence was corroborative of Appellant’s

gang involvement and his disregard for the value of human life, and was therefore relevant for

assessing Appellant’s punishment. The trial court overruled Appellant’s objections and admitted

the evidence. The jury sentenced Appellant to confinement for forty years.

          Appellant raises three issues on appeal. In Issue One, Appellant argues that the trial court

erred by permitting the State to present evidence of Appellant’s behavior immediately prior to

Mr. Goodacre’s murder. In Issue Two, Appellant contends that the trial court erred by permitting

the State to present the testimony by Mr. Goodacre’s father. In Issue Three, Appellant complains

that the trial court erred by permitting the State to present evidence of Appellant’s reluctance to

cooperate with authorities during the investigation of Mr. Goodacre’s murder. Since Appellant’s

three issues on appeal are all related to the admission of evidence, the standard of review as to

each matter is abuse of discretion. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App.


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2004). The mere fact that a trial judge may decide a matter within his discretionary authority in a

different manner than an appellate judge in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003).

A trial court does not abuse its discretion so long as its decision to admit the evidence is within

the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990).

       As a preliminary matter, we must first address Appellant’s briefing and discussion of

Issue Two. In order to present the issues to this Court for review, Appellant’s brief must contain

a clear and concise argument for the contentions made, with appropriate citations to authorities

and to the record. TEX .R.APP .P. 38.1(i). The discussion section of Appellant’s brief purports to

address the admissibility of all there pieces of evidence identified in his three appellate issues.

However, the brief omits any discussion of the evidence identified by Issue Two, testimony by

Mr. Goodacre’s father. Because Appellant’s brief fails to provide substantive analysis or

argument supported by citation to legal authority, Issue Two is waived. Instead, Appellant makes

one conclusory statement on this matter rather than engage in a discussion of why the trial court

erred by admitting the testimony by Mr. Goodacre’s father. Therefore, we find Appellant’s

second issue inadequately briefed. See TEX .R.APP .P. 38.1(I); Lozada v. Farrall & Blackwell

Agency, Inc., 323 S.W.3d 278, 286 (Tex.App.--El Paso 2010, no pet.). Issue Two is overruled.

       The remainder of Appellant’s issues are based on Texas Rule of Evidence 403. In Issue

One, Appellant contends that the evidence that he may have provoked the shooting by laughing

and blowing kisses toward individuals he knew to be rival gang members, was lawful conduct.

He argues that the act was directed at the driver, not the shooter, and that he could not have


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anticipated that a person sitting in the back seat of the car would shoot at him and kill a bystander

when the bullet went astray. Similarly in Issue Three, Appellant contends that the evidence of

his reluctance to cooperate with the authorities was inadmissable for punishment because he was

not required by law to cooperate. He also contends that the relevance of the evidence is further

diminished by the fact that Appellant did finally cooperate. In reviewing a Rule 403 objection,

we first decide whether the evidence is relevant. See Montgomery, 810 S.W.2d at 375. Evidence

must be relevant in order to be admissible. TEX .R.EVID . 402. At the punishment phase of a

criminal trial, evidence is admissible if:

       [T]he court deems [it] relevant to sentencing, including but not limited to . . .
       [defendant’s] character, an opinion regarding his character . . . and,
       notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
       of an extraneous crime or bad act that is shown beyond a reasonable doubt by
       evidence to have been committed by the defendant or for which he 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.ANN . art. 37.07, § 3(a)(1)(West Supp. 2010).

       The trial court is afforded a broad discretion in evaluating the relevance of the evidence.

See Montgomery, 810 S.W.2d at 378-79. The trial court acts within its discretion to judge the

evidence of certain conduct as relevant, even though a significant segment of the society consider

the conduct as normal and innocent. Id.

       In this instance, the trial court had discretion to conclude that Appellant’s conduct of

laughing and blowing kisses to a rival gang member posed a great danger to the community and

did in fact cause the death of an innocent bystander. See Montgomery, 810 S.W.2d at 378-79.

The trial court also had discretion to conclude that Appellant’s reluctance to cooperate with the

authorities when an innocent person was killed manifested his disregard for the value of human


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life. Id. Therefore, such evidence is relevant for proving Appellant’s character and for assessing

the punishment he deserved. See TEX .CODE CRIM .PROC.ANN . art. 37.07, § 3(a)(1). The fact that

many people may consider Appellant’s conduct as legitimate and innocent does not affect the

relevance of the evidence. See Montgomery, 810 S.W.2d at 381-82.

       This does not end our analysis however, as relevant evidence must still be excluded if the

probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

See TEX .R.EVID . 403; Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App. 1999). Rule 403

favors the admission of relevant evidence, and carries a presumption that relevant evidence will

be more probative than prejudicial. Conner v. State, 67 S.W.3d 192, 202 (Tex.Crim.App. 2001).

The rule requires exclusion of evidence only when there is a clear disparity between the degree of

prejudice of the offered evidence and its probative value. Conner, 67 S.W.3d at 202.

       To determine whether the probative value is substantially outweighed, the court should

consider several factors. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). The first

factor asks how probative the evidence is to a fact of consequence. State v. Mechler, 153 S.W.3d

435, 440 (Tex.Crim.App. 2005). In essence, this factor asks the court to determine whether or

not the evidence is relevant. See TEX .R.EVID . 402. As we discussed above, the evidence of

Appellant’s conduct immediately prior to the shooting, as well as his behavior during the police

interview are both relevant to assessing Appellant’s punishment.

       The second factor asks the court to consider the potential for the challenged evidence to

impress the jury in an irrational way. See Wyatt, 23 S.W.3d at 26. In this case, the challenged

evidence’s potential to have an overwhelming effect on the jury was limited by an instruction in

the court’s charge. Absent circumstances not present here, the jury is presumed to have


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understood and followed the court’s written instruction. See Hutch v. State, 922 S.W.2d 166,

172 (Tex.Crim.App. 1996). As such, the evidence’s potential to effect their deliberations in an

irrational way was also limited.

       Third, the court should consider the amount of time needed for the proponent to present

the evidence. See Wyatt, 23 S.W.3d at 26. Both the evidence of Appellant’s provoking

behaviors prior to the shooting, and the evidence of Appellant’s uncooperativeness were

developed through Detective Lopez’s testimony. Appellant does not contend that the detective’s

testimony took an overwhelming amount of time to present to the jury. It appears that the entire

punishment phase, including testimony by eight witnesses, was concluded in a single day. In

these circumstances, it does not appear that the evidence required a inordinate amount of time to

develop.

       Finally, the court should consider whether the evidence is necessary to prove a fact of

consequence. Wyatt, 23 S.W.3d at 26. During the punishment phase evidence related to the

defendant’s character, his reputation, and the circumstances surrounding the offense may be

offered to assist the jury in tailoring the sentence to the defendant. See TEX .CODE CRIM .PROC.

ANN . art. 37.07, § 3(a)(1); Hayden v. State, 296 S.W.3d 549, 552 (Tex.Crim.App. 2009). The

evidence challenged in Issues One and Three spoke directly to the nature of Appellant’s

character, and his lack of concern for the safety of others. The evidence was necessary to assist

the jury in determining the appropriate punishment to assess.

       In light of our analysis of the challenged evidence under Rule 403, we conclude the trial

court did not abuse its discretion by overruling Appellant’s objections. Accordingly, Issues One

and Three are overruled and we affirm the trial court’s judgment.


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August 31, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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