                            NUMBER 13-07-00404-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RICHARD ESPINOSA,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                                   OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                      Opinion by Justice Benavides

       On June 8, 2007, a jury found Richard Espinosa, appellant, guilty of aggravated

assault on a peace officer (count one), assault on a public servant (count two), and

“attempting to take weapon from a police officer” (count three). See TEX . PENAL CODE ANN .

§ 22.01(b) (Vernon Supp. 2009) (assault on a public servant), § 22.02(b)(2)(B) (Vernon

Supp. 2009) (aggravated assault on a public servant), § 38.14(b) (Vernon Supp. 2009)

(attempting to take weapon from peace officer). The trial court assessed punishment as
follows: on count one, life imprisonment in the Texas Department of Criminal Justice-

Institutional Division (“TDCJ-ID”); on count two, ten years’ imprisonment in TDCJ-ID; and

on count three, two years’ imprisonment in the Texas Department of Criminal Justice-State

Jail Division. The sentences are to run concurrently.

        On appeal, Espinosa raises five issues, which can be more properly characterized

as three:1 (1) the trial court abused its discretion by failing to grant a mistrial after false

testimony was presented to the jury, and the use of such false and perjured testimony

violated his due process and due course of law rights; (2) Espinosa’s due process rights

were violated when testimony from a prior, separate, and unrelated competency hearing

was admitted during the guilt/innocence phase of the underlying trial; and (3) during the

guilt/innocence phase, the trial court abused its discretion by allowing testimony that

Espinosa is on pretrial supervision in a separate and unrelated case. We affirm.

                                            I. BACKGROUND

        On August 7, 2005, Espinosa was driving a car near the Padre Staples Mall in

Corpus Christi, Nueces County, Texas. Richard Perez, an officer with the Corpus Christi

Police Department, was stopped at a stop light near the mall. While Officer Perez was

stopped at the light, Espinosa rammed his vehicle into the back of Officer Perez’s police

car. Officer Perez then saw Espinosa back his car up and ram the police car again.

Officer Perez noticed Espinosa attempting to back his car up a second time, but the car

was embedded under the police car’s rear bumper and Espinosa was unable to dislodge

his vehicle. Looking in his rearview mirror, Officer Perez saw that Espinosa appeared to

have “been on drugs, awake for days.”

        Officer Perez called police dispatch and then exited his vehicle. Once he exited his


        1
         In his brief to this Court, Espinosa addresses his first and second issues as one issue; we will do
the sam e in this opinion, and we will include his third issue as part of our discussion of his first two.
                                                     2
vehicle, he was able to see inside Espinosa’s car, where he saw Espinosa “screaming and

yelling,” but he could not hear what was being said. Espinosa exited his own vehicle,

started “waving his arms in the air,” and ran at Officer Perez at a “full sprint.” Espinosa was

yelling, “Kill me, motherf*****. Kill me.” Espinosa then “swung several times with both of

his fists” and struck Officer Perez several times in the shoulder area. Espinosa grabbed

hold of Officer Perez’s protective vest and pulled him to the ground. While they were

wrestling on the ground, Espinosa attempted to grab Officer Perez’s firearm. Officer Perez

was eventually able to push Espinosa off and spray him in the face with pepper spray.

After deploying the pepper spray, Officer Perez was able to wrestle Espinosa off of him,

and with the help of an unidentified passerby, he was able to handcuff Espinosa. Another

officer arrived at the scene and placed Espinosa in the back of Officer Perez’s vehicle.

Espinosa was arrested and indicted on three counts: aggravated assault on a peace

officer (count one), assault on a public servant (count two), and “attempting to take weapon

from a police officer” (count three).       See TEX . PENAL CODE ANN . § 22.01(b), §

22.02(b)(2)(B), § 38.14(b).

       Dr. Joel Kutnick, the court-appointed psychiatrist, initially determined that Espinosa

was incompetent to stand trial. Upon the trial court’s order, Espinosa was placed in the

care of Vernon’s State Hospital, in Vernon, Texas. Eventually, the staff at Vernon’s State

Hospital determined that Espinosa had become competent to stand trial, and on May 8,

2007, a jury trial was held to resolve the competency issue. The jury determined that

Espinosa was competent to stand trial.

       During the trial on the merits, the only contested issue was whether Espinosa was

legally insane at the time of the incident. Espinosa presented the testimony of his mother,

father, and sister, all of whom confirmed that Espinosa engaged in very bizarre behavior,


                                              3
including changing his name to emulate a rock star; painting his fingernails; having difficulty

getting along with others; living in a home in total disarray with Arabic writings all over the

walls; and dressing as a Catholic priest, then in military fatigues, wearing a beret, then as

a Buddhist or Hindu priest, and then as a naval officer.

       Espinosa also called Dr. Kutnick to the stand, and he testified that, among other

things, Espinosa is schizophrenic and bi-polar. Dr. Kutnick stated that Espinosa told him

during his initial evaluation that a microchip had been implanted in his brain while he was

in the Navy and that he was able to communicate with Condoleeza Rice and Donald

Rumsfeld. Espinosa told Dr. Kutnick that, while he was communicating with Rice and

Rumsfeld, his foot got stuck on the accelerator, causing him to smash into Officer Perez.

Initially, Espinosa would not answer Dr. Kutnick’s question regarding why he attacked

Officer Perez outside of the vehicles, but he later admitted that he did not remember

attacking Officer Perez. Dr. Kutnick believed that Espinosa had a delusional belief system,

at least as far as the purported microchip was concerned.

       Dr. Kutnick also discussed his second evaluation of Espinosa, during which

Espinosa offered at least one more theory to explain why he ran into the back of Officer

Perez’s car. Espinosa claimed that he rammed Officer Perez because he wanted to get

help and get Perez’s attention “because he needed to tell somebody about the microchip

in his brain.” Espinosa then began discussing that he was in a rage, and that is why he hit

Officer Perez’s vehicle. From his conversations with Espinosa and his reading of the

various police reports, Dr. Kutnick surmised that the rage stemmed from either a recent

breakup with a girlfriend or from a previous arrest. Dr. Kutnick believed that Espinosa was

a malingerer, or someone who is “consciously deceptive. In lay terms, lies.” Dr. Kutnick




                                              4
testified that the “rage theory” was the most likely explanation for Espinosa’s actions

towards Officer Perez, and therefore, in his opinion, Espinosa was sane at the time of the

accident.

       Dr. Robert Jimenez, a psychiatrist, testified on Espinosa’s behalf. Dr. Jimenez met

with Espinosa at the Nueces County jail for about two hours and also spent time with

Espinosa’s family. He examined Espinosa’s house and Espinosa’s medical records. Dr.

Jimenez diagnosed Espinosa as having “[c]hronic schizophrenia, paranoid type,” which “is

a very major disabling disease of the mind, and the brain.” “[B]asically what it affects in the

brain is the ability to live in reality. They cannot test reality. They live in another

world[;] . . . [t]hey have this fantasy world where it operates often . . . based on their

delusions and their beliefs . . . .” Dr. Jimenez testified about Espinosa’s strange behavior

and medical history, which dated back to high school and included various diagnoses such

as schizoid disorder, schizoaffective, bipolar, and schizophrenia. Espinosa was prescribed

myriad medications, including anti-psychotics, lithium, and mood stabilizers. Dr. Jimenez

explained that the various diagnoses are a result of Espinosa being a paranoid

schizophrenic:

       [I]t is exceedingly difficult to know what’s going on with that individual [sic],
       especially if they’re bright. Because they view the world very differently, and
       have suspicions of the outside world and others, and they live in ths private
       fantasy world that they don’t share with anyone, and they develop a way of
       dealing with other people in the outside world that we call a false self. You
       know, that is that it’s a put on. It’s kind of like a veneer of a personality that
       they adapt, and that personality is like a chameleon. You know, it can
       change depending on where they find themselves and who they’re talking to,
       and under what circumstances.

Dr. Jimenez also discussed his opinion regarding Dr. Kutnick’s “rage theory,” stating:

       Well, I would think that he [Espinosa] would have to know this man [Officer
       Perez] that he smashed into and have a particular reason why he smashed



                                               5
       into and have a particular reason why he would want to hurt this particular
       individual, and a history of [his] having done rageful things of this nature;
       attacked other people, you know, with automobiles being used as a weapon.
       If you had a pattern there and he knew this person and wanted to go after
       him, that would be understandable. But as far as I’m aware, he didn’t know
       who this police officer was, and—there’s no pattern of [him] doing these sort
       of things in the past. So I—I don’t see any evidence or rage theory, but—

Espinosa’s counsel then asked, “One of the theories was that maybe—you know, because

Richard Espinosa had been arrested before . . . . That maybe he was mad at the police

officers because he had been arrested before.” Dr. Jimenez responded, “Well, people get

arrested all the time . . . for traffic tickets and all . . . and they don’t want to smash into

police officers. I mean, this is rare. This is weird. And it doesn’t make any sense . . . .

You just don’t see this kind of thing.”

       Regarding the events in the underlying case, Dr. Jimenez stated:

       Well, the—the way that he explained to me the events of that particular day
       is that he had been going through these bizarre episodes in his house where
       he would smash the windows and write inscriptions and smash furniture and
       do all kinds of things in his house. And he claims he was being controlled by
       these chips[,] and he would sort of go mad[,] and this was the reason he
       didn’t get out of his house and didn’t go anywhere. And that particular day
       he seemed to be free of some of these episodes, and he got into his car and
       began to drive around. And he contends that he started feeling these—the
       actions of the chip again; namely, the tremors inside his body, and he
       [became] angry and upset and enraged, and then he doesn’t really recall all
       the details of what happened after that until he was told later, you know, of
       the events. And he is convinced that he was operating under the control of
       these alien forces through these chips, you know, when he did what he
       allegedly did. And in his view, he didn’t do it, you know. It was done by
       people who were controlling his brain. They did it, and not him.

       ....

       In my medical opinion, in terms of probability, it is my view that Mr. Espinosa
       has been—you know, fits the definition of insanity prior to the incident, during
       the incident, and subsequently after the incident, and things have not really
       changed that much for him. It is my view that he was operating under this
       delusional system that I mentioned at the time of the crime, that it was part
       and a response to that delusional system, and therefore he didn’t have moral



                                              6
        culpability.

        After hearing this testimony and the testimony of Espinosa’s family and other

witnesses, the jury found Espinosa guilty on all three counts in the indictment. The trial

court assessed punishment, and this appeal ensued.

                                  II. FALSE AND PERJURED TESTIMONY

        In his first issue, Espinosa claims that the trial court abused its discretion by not

granting a mistrial when Dr. Kutnick testified regarding Espinosa’s prior arrest and that the

State violated his due process and due course of law rights when it used such false and

perjured testimony.2 See Ex parte Castellano, 863 S.W.2d 476, 481 (Tex. Crim. App.

1993) (en banc) (“To summarize, the State violates a defendant’s rights to due process

when it actively or passively use[s] perjured testimony to obtain a conviction.”). Espinosa

asserts that he was never actually arrested on the prior offense, even though he had been

indicted and arraigned.

A.      Applicable Law

        We review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Yates v. State, 171 S.W.3d 215, 220 (Tex. App.–Houston [1st Dist.] 2005, pet.

ref’d) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). We “must uphold


        2
           The State asserts that Espinosa failed to properly preserve this issue for our review, contending that
his m otion for m istrial was neither tim ely nor specific. See Griggs v. State, 213 S.W .3d 923, 927 (Tex. Crim .
App. 2007). Espinosa m oved for a m istrial during and after Dr. Jim enez’s testim ony and after the testim ony
of his rebuttal witness, Jason Lucas. Lucas followed im m ediately after Dr. Kutnick’s rebuttal testim ony, and
both of these two witnesses discussed the situation concerning Espinosa’s prior offense. In response,
Espinosa asserts that his m otion following Lucas and Dr. Kutnick was tim ely because he did not learn of the
full circum stances surrounding the prior offense until after Dr. Kutnick first testified as Espinosa’s own witness.
During the hearing on his m otion, Espinosa argued that it should be granted because allowing Dr. Kutnick to
testify that Espinosa had been “arrested” was “im proper” because according to Espinosa, it was not true, and
because such testim ony was “highly prejudicial.” Because “appellate courts should reach the m erits of an
appeal whenever reasonably possible,” we conclude that, under the circum stances of this case, Espinosa’s
m otion for m istrial was tim ely and specific; therefore, he did not waive this issue. Perry v. Cohen, 272 S.W .3d
585, 587 (Tex. 2008).




                                                         7
the trial court's ruling if that ruling was within the zone of reasonable disagreement.” Wead

v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). Under this standard of review, in

the instant case, “[w]e review the record to determine if the State ‘used’ the testimony,

whether the testimony was ‘false,’ whether the testimony was ‘knowingly used,’ and if these

questions are affirmatively answered, whether there is a reasonable likelihood that the

false testimony could have affected the judgment of the jury.” Ramirez v. State, 93 S.W.3d

386, 394-95 (Tex. App.–Austin 2002, pet. ref’d).

        There is no need for a defendant to show the witness knew the testimony
        was false or otherwise harbored a sufficient culpable mental state to render
        the witness subject to prosecution for perjury. Moreover, the Court of
        Criminal Appeals has made clear that whether the rule is violated or not does
        not depend upon the defendant's ability to demonstrate the witness's specific
        factual assertions were technically incorrect or “false.” It is sufficient if the
        witness's testimony gives the trier of fact a false impression.

Id. at 395 (quoting 42 George E. Dix & Robert O. Dawson, TEXAS PRACTICE: CRIMINAL

PRACTICE AND PROCEDURE § 22.53 (2d ed. 2002)).

B.      Discussion

        Espinosa contends that Dr. Kutnick’s testimony that his prior arrest caused him to

be in a rage during the confrontation with Officer Perez is the only testimony that Espinosa

was sane at the time he collided with Officer Perez.3 Espinosa asserts that he was never

“arrested” for the prior offense, and argues that because he was never arrested, Dr.

Kutnick’s testimony was false and misleading to the jury. We disagree that Dr. Kutnick’s

testimony was false or misleading.

        At the outset, we note that Espinosa called Dr. Kutnick as a witness and the


        3
          Nina Espinosa, Espinosa’s m other, stated several tim es during cross-exam ination that Espinosa
knew right from wrong on the day of the accident, at least insofar as he knew that he m ust obey traffic laws.



                                                      8
testimony regarding the prior arrest came in during Espinosa’s direct examination of Dr.

Kutnick. While Dr. Kutnick was being questioned by Espinosa, a bench conference

occurred outside of the presence of the jury to discuss the confines of Dr. Kutnick’s

testimony regarding his theory that Espinosa acted out of rage due to the prior arrest.

Espinosa’s counsel agreed that Dr. Kutnick could testify regarding the rage theory so long

as Dr. Kutnick did not mention what the prior offense was and avoided mentioning any

details of the offense. Following the bench conference, Espinosa’s counsel prompted Dr.

Kutnick to continue discussing the rage theory. Dr. Kutnick testified as follows:

      So as I’m trying to, as I said, determine if a person is insane, I’m trying to
      reconstruct the events. One, do they have a mental illness? Yes, he has a
      mental illness that could so confuse him. But did it? And so[,] essentially in
      the two interviews I had[,] I got three different explanations from him as to
      what happened. One, his accelerator got stuck on the pedal because he
      was hearing the government officials. The second explanation was [that] he
      hit the officer because he wanted to get attention and get this microchip out
      of [his] head.

               And the—and he also started talking about that he had broken up with
      his girlfriend and he—this anger was building up in him, the rage. But I also
      knew from all of the documents handed to me that he had previously been
      arrested a few months ago. And he started talking about this rage. And he
      also told me that he didn’t—he denied that the police officer implanted chips
      in his head so that the rage didn’t come from there, and I began to speculate,
      well, was he angry at police officers because he got arrested previously[,]
      and he saw the cop and hit him[?]

             Now, out of those three explanations, at least the facts as I know it,
      the rage issue makes the most sense. So he hit the officer[,] backed up, hit
      him again, then attacked him. That is rage. He doesn’t shout to the officer,
      at least as far as I know, please help me. I have a microchip, you know.
      Why would you attack the officer if you’re saying you want help[?]

              So as I look at it, at least as much as I know about what happened,
      it’s the rage reaction that seems to be—explained the actions that night[,]
      and [they did] not have anything to do with this microchip.

            And again, as I said, literally over the years I’ve done thousands of
      these cases[,] and when I found somebody to be insane, and I have, what



                                            9
       they told me also fit the facts of the case. As an example, I declared a
       person insane. He had stabbed two women to death in the hospital here.
       This was two years ago. Because he thought they were witches and put a
       hex on him [sic]. And the nurses came as he was stabbing them[,] and he
       shouts to the nurses, “Look what happens to witches.” He doesn’t run away.
       The security officer at the hospital, he gives the guy the knife, and he doesn’t
       try to escape. The police come, he tells them that “I killed the witches,” and
       he doesn’t deny it. All that fits, you know. But he actually believed they were
       witches. And, I mean, a terrible tragedy happened, but it all fits the facts of
       what happened.

              With Mr. Espinosa, the only explanation so far that I know of that fits
       the facts is the rage, and rage is not—in my opinion, does not mean a
       person is insane. Now, if it was rage over the police putting the microchip in
       his head, yeah. But he denies that the police had anything to do with the
       planting of the micro—and that’s why—although I do think he’s ill—why I
       don’t think he meets the insanity definition[,] which says that your thinking
       has to be so distorted by your illness that you do not know that it’s wrong.

              And he also told me that he hit the police car because he knew that
       he would be arrested, and that of course suggests that he understood that
       it was wrong. So people can be sick, but [that doesn’t] necessarily mean that
       they’re actually insane, according to the definition of the State of Texas.

       Later during Espinosa’s direct examination, he asked Dr. Kutnick to confirm that his

conclusion that Espinosa was sane was based on Espinosa’s rage over his prior arrest.

At no point during his direct examination of Dr. Kutnick did Espinosa object to the testimony

or ask the trial court to instruct the jury to disregard the testimony on the grounds that

Espinosa had not previously been arrested. In fact, when Dr. Kutnick was called by the

State as a rebuttal witness later in the trial, the following discussion occurred:

       [Espinosa’s Counsel]:        Okay. Well, do you know when he was arrested
                                    by the police?

       Dr. Kutnick:                 I’d have to look [it] up. I don’t know—I don’t
                                    remember the exact date. It’s—

       Counsel:                     Or do you even know if he was arrested by the
                                    police?

       Dr. Kutnick:                 Well, I know he has a charge.



                                             10
       Counsel:                      Do you know if he was arrested or if his lawyer
                                     turned him in?

       Dr. Kutnick:                  I don’t know the exact circumstances of that
                                     previous charge.

       The first time Espinosa explicitly asserted that he had not actually been arrested for

the prior offense was during the testimony of his rebuttal witness, James Lucas, one of his

defense attorneys on the prior offense.          Lucas stated that his co-counsel “walked

[Espinosa] up to the [trial court] when they found out there was an indictment.” Lucas

further testified that when his co-counsel walked Espinosa into the court for the

arraignment on the prior offense, Espinosa

       was in civilian clothes, so he wasn’t under arrest, and had a religious book
       with him[,] and he was asking me and [his co-defense counsel] if he could
       bring it into the courtroom. So I don’t believe he was under—technical
       arrest, yes. There was an indictment, there was an indictment.

After stating that Espinosa “obtained a bond” at the arraignment, Lucas indicated that

Espinosa was not free to leave at that time, noting, “Well, I mean, I think you have to

technically go down to the jail still and process. I mean, there’s still some—there’s this

legal fiction of an arrest, but there’s not what the common person thinks of custody.” This

testimony is the only evidence in the record specifically detailing the events surrounding

the arraignment on the prior offense.

       “‘[I]t it is not the actual, physical taking into custody that will constitute an arrest. An

arrest is complete whenever a person's liberty of movement is restricted or restrained.’”

Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000) (quoting Hardinge v. State,

500 S.W.2d 870, 873 (Tex. Crim. App.1973)). “An arrest of a person carries with it an

element of detention, custody or control of the accused . . . .” Id. (quoting Smith v. State,




                                               11
153 Tex. Crim. 230, 219 S.W.2d 454, 456 (1949)). While Espinosa may not have been

handcuffed by a peace officer and led into the court in a “perp walk,” that is not required

for an arrest to have occurred in this case. Here, the jury heard Espinosa’s own defense

counsel testify that Espinosa was indicted, arraigned and subject to a “legal fiction of an

arrest.” As Lucas noted, Espinosa was not free to leave upon obtaining a bond at the

arraignment; he had to “go down to the jail still and process.” We conclude that Dr.

Kutnick’s testimony was neither false, misleading to the jury, nor perjurious; thus, the trial

court’s decision is within the zone of reasonable disagreement. See Wead, 129 S.W.3d

at 129. Because the trial court did not abuse its discretion, Espinosa’s first, second and

third issues are overruled.

                          III. TESTIMONY FROM PRIOR COMPETENCY HEARING

         In his second appellate issue, Espinosa argues that he “was denied due process of

law under the United States Constitution and due course of law under the Texas

Constitution because he relied on the protection of article 46.02 [section] 3(g), Texas Code

of Criminal Procedure, and such protection was not afforded to him.” Espinosa notes that

he is raising this issue for the first time on appeal.4 See TEX . R. APP. P. 33.1. We conclude

that no violation of the statute occurred.

         Article 46B.007 of the code of criminal procedure provides:
         4
            W e note that article 46.02 of the code of crim inal procedure was repealed effective January 1, 2004.
See Act of Apr. 30, 2003, 78th R.S., ch. 35, § 15, 2003 T EX . S ESS . L AW S ER V . 57, 72 (Vernon). But see T EX .
C OD E C R IM . P R O C . A N N . art. 46B.007 (Vernon 2006) (containing protections of privacy of com petency hearings
sim ilar to form er article 46.02); Mitten v. State, 145 S.W .3d 225, 227-28 (Tex. Crim . App. 2004) (recognizing
that article 46B.007's prohibitions are m ore broad than those contained in article 46.02). The court of crim inal
appeals has held that adm itting such statem ents is “clearly error” and that “the error cannot be waived
because the statute is too clear and absolute to be held subject to waiver.” Caballero v. State, 587 S.W .2d
741, 743 (Tex. Crim . App. 1979). Espinosa did not reply to the State’s waiver argum ents, but because we
conclude that no violation of the statute occurred, we do not address the State’s waiver assertions. See T EX .
R. A PP . P. 47.1.




                                                         12
       A statement made by a defendant during an examination or trial on the
       defendant's incompetency, the testimony of an expert based on that
       statement, and evidence obtained as a result of that statement may not be
       admitted in evidence against the defendant in any criminal proceeding, other
       than at: (1) a trial on the defendant's incompetency; or (2) any proceeding
       at which the defendant first introduces into evidence a statement, testimony,
       or evidence described by this article.

TEX . CODE CRIM . PROC . ANN . art. 46B.007 (Vernon 2006). The record includes testimony

that Espinosa had been found competent to stand trial in a separate and unrelated case

but does not contain any statements made by Espinosa, expert testimony based on any

such statements, or any evidence obtained as a result of any statements made during the

competency hearing in that separate case. Further, Espinosa’s argument does not direct

us to any statements, testimony, or evidence prohibited by article 46B.007. See TEX . R.

APP. P. 38.1(i). Because no violation of the applicable statute occurred, we overrule

Espinosa’s second issue.

                                 IV. PRETRIAL SUPERVISION

       Espinosa argues, in his third issue, that the trial court erred in admitting evidence

that he “was on pretrial supervision for a pending felony in order for the State to prove [his]

‘motive’ for committing the indicted offense.” During a pretrial conference, the trial court

overruled Espinosa’s objections to the admissibility of evidence that he had been on

pretrial supervision in a separate and unrelated case. See TEX . R. EVID . 103 (stating that

when the court, outside the jury’s presence, rules on the admissibility of evidence,

repeating the objections when the evidence is later introduced is unnecessary to preserve

the issue for appellate review).     Espinosa objected to the admission of his pretrial

supervision under rules 401, 402, 403, and 404 of the Texas Rules of Evidence. See id.

401, 402, 403, 404. The trial court overruled the objections, but limited the State to




                                              13
discussing only the fact that Espinosa had been on pretrial supervision in a separate case

and forbade the State from introducing the charge or substance of that case.5

        To determine whether the trial court erred in admitting evidence, we review its

decision for an abuse of discretion.                Trevino v. State, 228 S.W.3d 729, 734 (Tex.

App.—Corpus Christi 2006, pet. ref’d) (citing McDonald v. State, 179 S.W.3d 571, 576

(Tex. Crim. App. 2005)). “A trial court abuses its discretion when its decision is so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.” Id.

(citing Montgomery, 810 S.W.2d at 391).

        Under rules 401 and 402, relevant evidence is admissible. TEX . R. EVID . 401, 402.

Rule 404(b) prohibits the admission of other crimes “to prove the character of a person in

order to show action in conformity therewith,” but such evidence is admissible for other

purposes, including to show motive. Id. 404(b). However, even if admissible under rule

404(b), evidence of other crimes may still be inadmissible under rule 403 “if its probative

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

or misleading the jury . . . .” Id. 403. Additionally, “extraneous-offense evidence may be

admissible when a defendant raises an affirmative defense or a defensive issue that

negates one of the elements of the crime.” Berry v. State, 233 S.W.3d 847, 858 (Tex.

Crim. App. 2007). Further, “[r]ule 403 favors admissibility of relevant evidence, and the

presumption is that relevant evidence will be more probative than prejudicial.” Montgomery

v. State, 810 S.W.2d at 389. Thus,

        when undertaking a Rule 403 analysis, [the trial court] must balance (1) the
        inherent probative force of the proffered item of evidence along with (2) the
        proponent's need for that evidence against (3) any tendency of the evidence
        5
         The trial court also included a lim iting instruction in the charge inform ing the jury that it was to only
consider evidence of the extraneous offense, if it chose to consider it at all, for the purposes of evaluating
Espinosa’s m otive for comm itting the indicted offenses.



                                                        14
       to suggest decision on an improper basis, (4) any tendency of the evidence
       to confuse or distract the jury from the main issues, (5) any tendency of the
       evidence to be given undue weight by a jury that has not been equipped to
       evaluate the probative force of the evidence, and (6) the likelihood that
       presentation of the evidence will consume an inordinate amount of time or
       merely repeat evidence already admitted

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

       In the present case, the fact that Espinosa committed the offenses at issue was not

disputed, so the only real issue at trial was Espinosa’s affirmative defense that he was

insane at the time the event occurred. The State argued two theories relevant to our

discussion of the extraneous offense evidence: (1) Espinosa had been found competent

to stand trial in the separate case and therefore was motivated to commit an outrageous

act to rebut the finding of competence, and (2) as Dr. Kutnick testified, Espinosa was angry

at the police for the prior arrest. Espinosa asserts that this evidence was irrelevant and

that its probative value was outweighed by the danger of unfair prejudice. We disagree.

       Evidence of extraneous offenses “may be admissible when it is relevant to a

noncharacter conformity fact of consequence in the case, such as rebutting a defensive

theory.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Here, the State

offered evidence of Espinosa’s pretrial supervision through the testimony of Bryan Garcia,

a Nueces County probation officer. It further offered evidence that Espinosa had been

found competent to stand trial in the separate case through the testimony of Melinda

Molina, a Nueces County district court clerk. Garcia stated that he was Espinosa’s pretrial

supervision officer and that as recently as three days before the underlying events

occurred, Espinosa was not acting crazy or bizarre. Molina noted the court-appointed

psychologist in the separate case found Espinosa competent to stand trial in that case and

that a status hearing had been set. We conclude that the trial court could have reasonably



                                            15
determined that the testimony about Espinosa’s pretrial supervision and about his having

been found competent to stand trial in the separate case was relevant rebuttal testimony

that Espinosa was motivated to commit the underlying offenses to show that he was not

competent to stand trial in the other case. See id.

       Reviewing the rule 403 balancing test, we believe that the trial court could have

reasonably concluded that evidence that Espinosa was on pretrial supervision in a

separate case in which he had been found competent to stand trial was probative in

determining his motive for committing the offenses before us and, as such, was needed

by the State to rebut Espinosa’s theory that he was insane at the time the underlying

events occurred. Additionally, the trial court took care to exclude any mention of the

specific offense with which Espinosa had been charged in the separate case, which

protected the jury from deciding the present case on an improper basis. See Gigliobianco,

210 S.W.3d at 641 (explaining that the phrase “unfair prejudice” in rule 403 “refers to a

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one. Evidence might be unfairly prejudicial if, for example, it arouses the jury's

hostility or sympathy for one side without regard to the logical probative force of the

evidence.”) (internal citations omitted). Further, there is no indication in the record that the

evidence of pretrial supervision would confuse or distract the jury from the main issue of

insanity or that the jury would give undue weight to the testimony, and the testimony was

not cumulative, nor did it take an inordinate amount of time to present. See id. We

conclude, therefore, that the trial court’s decision to admit the testimony concerning

Espinosa’s pretrial supervision was within the zone of reasonable disagreement, and the

trial court did not abuse its discretion in admitting this evidence. See Wead, 129 S.W.3d




                                              16
at 129. We overrule Espinosa’s third issue.

                                     V. CONCLUSION

       Having overruled Espinosa’s first, second, and third appellate issues, we affirm the

judgment of the trial court.


                                                       ________________________
                                                       GINA M. BENAVIDES
                                                       Justice

Publish.
TEX . R. APP. P. 47.2(b)

Dissenting Opinion by
Justice Linda Reyna Yañez.

Delivered and filed the
5th day of August, 2010.




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