      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        444444444444444
                                        NO. 03-00-00243-CR
                                        444444444444444


                                      Edward Bell, Appellant


                                                   v.


                                    The State of Texas, Appellee



44444444444444444444444444444444444444444444444444444444444444444
 FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-98-0433-S, HONORABLE DICK ALCALA, JUDGE PRESIDING
44444444444444444444444444444444444444444444444444444444444444444




                Appellant Edward Bell appeals his conviction for capital murder. Tex. Pen. Code

Ann. § 19.03(a)(3) (West 1994). After the jury found appellant guilty, the trial court assessed

punishment at life imprisonment, the State having waived the death penalty.


                                           Points of Error

                Appellant advances three points of error.        First, appellant challenges the legal

sufficiency of the evidence to support his conviction for capital murder. Second, appellant urges that

the trial court erred in overruling his objection to an application paragraph of the jury charge relating

to parties in this capital murder case for remuneration. Appellant contends that he could not be guilty
as a party when the primary actor, Luis Ramirez, was not guilty of this aggravated element

(remuneration) of the offense charged. Third, appellant contends that under Rule 403 of the Texas

Rules of Evidence, the trial court erred in admitting into evidence a handwritten note of Luis Ramirez

found in appellant’s wallet because its probative value was outweighed by the danger of unfair

prejudice and the needless presentation of cumulative evidence. We will affirm the conviction.


                                             Indictment

               The indictment in pertinent part charged that appellant on or about April 8, 1998 “did

then and there intentionally cause the death of an individual, namely, Nemecio Nandin, by shooting

the said Nemecio Nandin with a deadly weapon, to wit: a firearm, for remuneration and the promise

of remuneration from Luis Ramirez.”


                                            Background

               The facts of the case are important in view of appellant’s claim that the evidence is

legally insufficient to sustain the capital murder conviction, and to place the other points of error in

proper perspective.

               On April 16, 1998, the decomposing body of twenty-nine year-old Nemecio Nandin

was found buried in a shallow grave near the home of Richard and Lana Riordon on a fifty-acre tract

between Orient and Tennyson in far northeast Tom Green County. The medical examiner determined

that the cause of death was two shotgun blasts to the head, at least one of which was caused by a

twenty-gauge shotgun.




                                                   2
                Nandin was a firefighter for the San Angelo Fire Department. His off-duty business

was repairing washing machines and dryers. Nandin was last heard from around noon on April 8,

1998, when he called his girlfriend, Carla1 Bewick, to tell her he was headed to a business call to

repair a washer and a dryer, and that he would call her when he got back into San Angelo that

evening. Bewick, who testified that her relationship with Nandin was an on-again, off-again one,

related that when Nandin did not call as promised and did not respond to her calls to his cell phone

or pager, she became concerned. Later in the day, when she went to the Wal-Mart store on North

Bryant Street in San Angelo, she saw Nandin’s pick-up truck with a washer and dryer parked near

the rear of the store. The truck was unlocked. Nandin was not to be found in the store. When

Bewick returned to the store later in the evening, the truck was still there. She was unable to contact

Nandin the next morning at the fire department. He had not reported for work. His co-workers

organized a search. As noted, his body was found on April 16, 1998.

                Dawn Ramirez Holquin had remarried after the offense but prior to the time of the

trial. She testified that she married Luis Ramirez in 1985. They had two children and lived in Las

Vegas, Nevada, before moving to San Angelo in 1992. She related that Luis was an angry, jealous,

and domineering man who had to be in control of everything; that their marriage was very turbulent,

very violent and “not happy”; and that she got a divorce in November 1995. Dawn testified that she




       1
           The name was also spelled “Karla” in the record.

                                                  3
did not date for a long period after the divorce because of Luis’s jealousy. He told her that “it drove

him crazy to think that you are with other men.”

               Dawn related that she first met Nemecio Nandin in June 1995 when he repaired her

dryer. She encountered him again in October 1997 when he came to the Town and Country store,

where she was employed, to purchase hot chocolate. He called her at work that evening to thank her

for the hot chocolate. Luis was in the store at the time. She and Nandin began dating. Dawn

decided to move to Austin to get away from Luis. On Saturday, December 20, 1997, Nandin came

by her San Angelo home at 7:30 a.m. to tell her goodbye. While Nandin was there, Luis began

telephoning, telling Dawn to get rid of whomever was there. She learned that Luis was calling from

a grocery store two blocks away. After Luis had called seven or eight times, Nandin took the phone

and told Luis to leave Dawn alone and that her life was none of Luis’s business. Later, Dawn heard

a noise and opened the front door to find her children there. She saw Luis driving away. It was

Luis’s weekend with the children and he had only picked them up the night before.

               Dawn revealed that she saw Nandin again on December 26, 1997, when she brought

the children to San Angelo for their visitation with their father; that on the last week-end in March

1998 Nandin came to Austin to see her; that the following week-end in early April 1998, her children

returned from their visitation with their father; that her daughter reported that her father (Luis) had

become upset when told the children liked Nandin; and that Luis had stated he would take care of the

problem. Dawn related that Luis had once told her that “if he found out that I was with another man,

he would kill him and then come after me.”




                                                   4
               From around Thanksgiving Day of 1997 until the early part of April 1998, appellant

Bell, his girlfriend, Lisa McDowell, and a young child lived with the Riordons on their property near

the Tennyson Road where Nandin’s body was later found. Due to the objections of the Riordons’

landlord, appellant, McDowell, and the child moved in with Timothy and Nicole Hoogstra in their

house in San Angelo. Hoogstra and appellant had been co-workers on several different construction

sites. Neither appellant nor McDowell had jobs at the time they moved. Shortly after the move when

Hoogstra was working on his truck, appellant told him that a man named “Luis” was going to hire

him (appellant) to kill a fireman for $1,000.00. Later, appellant told Hoogstra that he “had done it”

and to watch for it on the news. When Hoogstra learned that Nandin, a fireman, was missing, he

questioned appellant about the matter. Appellant told Hoosgstra that “they” (appellant Bell and Luis

Ramirez) had lured Nandin to a location on Tennyson Road to service a washer and dryer; that “they”

put a gun to Nandin’s head and placed handcuffs on Nandin; and that “they” blew Nandin’s brains

out with a shotgun and buried Nandin’s body behind a chicken house. Appellant explained that the

ground was “real hard,” Nandin was a big man, and they had a difficult time in burying the body.

Hoogstra recalled that appellant “giggled” when relating that “they” blew the fireman’s brains out.

While appellant did not specifically say who fired the shots, he later told Hoogstra that Luis Ramirez

had pulled the trigger. Appellant explained that he and Luis had done this to Nandin because the

fireman was seeing Luis’s wife, or Luis was seeing the fireman’s wife, “one way or the other.”

               Appellant also told Hoogstra that after the burial, he put on gloves and drove Nandin’s

pick-up truck back to San Angelo and parked it at the rear of the old Wal-Mart store on North

Bryant. Appellant left the washer and dryer in the truck, but threw away Nandin’s cell phone and

                                                  5
pager. Later, appellant gave Hoogstra a pair of handcuffs which he said had been used on Nandin.

After appellant left for Tyler, Hoogstra gave the handcuffs to the police. These handcuffs were

shown to be the same brand of handcuffs purchased by Luis Ramirez in 1991 in Las Vegas, Nevada,

where Ramirez worked briefly as a security guard.

               On April 14 or 15, 1998, Hoogstra went with Lee Westerman to do construction work

on a lake house in Brownwood. Hoogstra told Westerman of his conversation with appellant.

Westerman had Hoogstra call Crime Stoppers from Brownwood. Either that day or another in April

when Westerman brought Hoogstra home, Westerman met appellant. Appellant told Westerman that

the police had been at Hoogstra’s home that day, and he did not know whether it was because of a

fight with his girlfriend, or whether it was for the “other thing” that would “get him either life or

death in prison.”

               Lisa McDowell, appellant’s girlfriend, related that early on the morning of April 8,

1998, she and appellant had gone to the Riordons’ home on Tennyson Road to pick up some clothes

they had left behind when they moved. After the Riordons went to work, she got into an argument

with appellant. She left him behind and took her infant son and drove to her aunt’s house in San

Angelo. That afternoon, Luis Ramirez dropped appellant off at the aunt’s house. Appellant and

McDowell then drove to the Miles High School to pick up the Riordon children from school as

McDowell had promised. On the way, McDowell observed appellant throw a latex glove or gloves

out of the car window. Sometime later, McDowell returned to this particular stretch of highway with

police officers. A latex glove was found as well as the keys to Nandin’s pick-up truck.




                                                 6
               On April 16, 1998, appellant and McDowell left San Angelo for Tyler. He supposedly

had a construction job in the area. Appellant had $200 which he told McDowell had been given to

him by Luis Ramirez. Appellant was arrested in a trailer park near Whitehouse, south of Tyler.

Appellant and McDowell both signed consent forms giving the officers permission to search the

Mercury Cougar automobile in which they had traveled. In the search, the officers found appellant’s

wallet near the front seat. In it were two business cards of Luis Ramirez, and a handwritten note

containing directions to two residences in Austin and descriptions of three motor vehicles. According

to Dawn Ramirez Holquin, Ramirez’s ex-wife, the note was in Luis Ramirez’s handwriting and the

residences and vehicles described belonged to her and her uncle.

               In the trunk of the searched automobile, a pair of Bugle Boy jeans were found. After

testing, it was determined that the DNA from the blood stains on the jeans matched the DNA of the

deceased, Nemecio Nandin. Ginger Herring, Luis Ramirez’s girlfriend, testified that Ramirez owned

a pair of Bugle Boy jeans. McDowell testified that when she and appellant were throwing things into

a trash dumpster before leaving San Angelo, she found the jeans in the trunk of the car, that they were

not appellant’s, but he would not let her throw them away.

               A search of the Riordon house uncovered three shotguns—two twenty-gauge

shotguns and one sixteen-gauge shotgun. Lana Riordan testified that the two twenty-gauge shotguns

were in working order, but not the sixteen-gauge shotgun. She related that appellant and McDowell

had arrived at her house early on the morning of April 8, 1998, and when she returned that evening

one of the twenty-gauge shotguns had been moved from its regular place and left in another room.




                                                  7
               After his arrest, appellant wrote a letter to McDowell from the Tom Green County

jail. McDowell kept the letter two months before revealing it to a friend. The letter was introduced

into evidence describing, inter alia, how Nandin was killed by Ramirez in appellant’s presence, how

the body was buried, how he was given money by Ramirez which had been taken out of Nandin’s

wallet, and how he drove Nandin’s truck to the Wal-Mart store. Appellant relied upon some of the

self-serving statements in the letter introduced by the State to support his defense of duress.

Appellant offered no defensive testimony.


                                       Jury Charge—Parties

               In submitting the case to the jury, the trial court inter alia, instructed the jury

abstractly on the law of parties. In paragraph 4, an application paragraph, the trial court charged the

jury on capital murder in accordance with the allegations of the indictment. Then separating the

paragraph with an “OR,” the trial court applied the law of parties to the capital murder. In paragraph

5, the trial court likewise submitted the lesser included offense of murder in the same fashion. The

trial court also charged the jury on the affirmative defense of duress.


                                         Legal Sufficiency

               In his first point of error, appellant contends that the evidence is legally insufficient

to support the capital murder conviction because (1) the evidence is legally insufficient to show that

“he was the triggerman,” and (2) insufficient to show his guilt as a party “because there was no

evidence that the principal, Luis Ramirez, committed the murder for remuneration.” By his expressed

contention, appellant challenges only the legal sufficiency of the evidence.

                                                  8
                                     The Standard of Review

               The standard for reviewing the legal sufficiency of evidence is whether, viewing the

evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found

beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.—Austin 1994, pet. ref’d).

The standard of review is the same in both direct and circumstantial evidence cases. King v. State,

895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.

App. 1992). The State may prove its case by circumstantial evidence if it proves all of the elements

of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex.

App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence

is determined from the cumulative effect of all the evidence; each fact in isolation need not establish

the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is

important to remember that all the evidence the jury was permitted, properly or improperly, to

consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v.

State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.).

               The jury is the exclusive judge of the facts proved, the weight to be given the

testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); Adelman v. State, 828

S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the

evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

                                                  9
The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. Welch

v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, no pet.); Hernandez v. State, 939

S.W.2d 692, 693 (Tex. App.—Fort Worth 1997, pet. ref’d). Moreover, the reconciliation of

evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500,

504 (Tex. Crim. App. 1995).

                Under the Jackson standard, the reviewing court is not to position itself as a thirteenth

juror in assessing the evidence. Rather, it is to position itself as a final due process safeguard insuring

only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

It is not the reviewing court’s duty to disregard, realign, or weigh the evidence. Id. The jury’s

verdict must stand unless it is found to be irrational or unsupported by more than a “mere modicum”

of evidence, with such evidence being viewed in the Jackson light. Id. The legal sufficiency of the

evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996,

pet. ref’d).


                                             Law of Parties

                “A person is criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally responsible, or by both.”

Tex. Pen. Code Ann. § 7.01(a) (West 1994); Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App.

1996). Thus, under the law of parties, the State is able to enlarge a defendant’s criminal responsibility

to acts in which he may not be the primary actor. Tex. Pen. Code Ann. § 7.01(b) (West 1994); Rome

v. State, 568 S.W.2d 298, 300 (Tex. Crim. App. 1997) (op. on reh’g); Rosillo v. State, 953 S.W.2d


                                                    10
808, 812 (Tex. App.—Corpus Christi 1997, pet. ref’d). The law of parties may be applied even

though no such allegation is contained in the indictment. Jackson v. State, 898 S.W.2d 896, 898

(Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989); Pitts v.

State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978); Howard v. State, 966 S.W.2d 821, 824 (Tex.

App.—Austin 1998, pet. ref’d).

                Section 7.02 of the Texas Penal Code provides in pertinent part:


        (a) a person is criminally responsible for an offense committed by the conduct of
            another if

        ***

            (3) acting with intent to promote or assist the commission of the offense, he
                solicits encourages, directs, aids, or attempts to aid the other person to
                commit the offense.


Tex. Pen. Code Ann. § 7.02(a)(3) (West 1994).

                The test for determining when an instruction should be submitted to the jury on the

law of parties was set forth in McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974), and

quoted in Goff, 931 S.W.2d at 544-45. It need not be restated here. When the evidence is sufficient

to support both the primary actor and party theories of liability, as in the instant case, the trial court

does not err in submitting an instruction on the law of parties. Ransom v. State, 920 S.W.2d 288, 302

(Tex. Crim. App. 1994); Webb v. State, 760 S.W.2d 263, 267, 275 (Tex. Crim. App. 1988); Rosillo,

953 S.W.2d at 814. Evidence is sufficient to convict under the law of parties if the defendant is

physically present at the commission of the offense and encourages its commission by words or other

agreement. Ransom, 920 S.W.2d at 302; Rosillo, 953 S.W.2d at 814. Clearly, there was more

                                                   11
evidence here than encouragement by appellant Bell so as to constitute him a party, if in fact Luis

Ramirez was the primary actor.

               The trial court submitted the theory to the jury that appellant was the primary actor

in killing Nandin for remuneration as alleged in the indictment. In the alternative, the trial court

submitted the theory of parties if the jury found that Luis Ramirez was the primary actor and that

appellant for remuneration aided Ramirez in the killing.

               The jury returned a general verdict—“We, the jury find the defendant EDWARD

BELL, guilty of CAPITAL MURDER as charged in the indictment.”

               Appellant argues, however, that the evidence is insufficient to show that he was the

primary actor as alleged. Appellant told Hoogstra that he had been hired to kill a fireman for $1,000.

He later told Hoogstra that “he (appellant) had done it” and to watch the news. Still later, appellant

told Hoogstra that “they” had lured Nandin to the location of the killing, “they” had handcuffed

Nandin, and “they” had blown Nandin’s brains out with a shotgun. Nandin died from two shotgun

blasts, one of which was a twenty-gauge shotgun. The medical examiner, because of the body’s

condition, could not determine what type of shotgun inflicted the other wound. Two twenty-gauge

shotguns in working condition were found at the location of the murder. The medical examiner was

unable to determine if the same shotgun was used to inflict both wounds. The deadly blasts could

have been fired from separate shotguns, one by appellant and one by Ramirez, or could have been

fired by the same shotgun. The jury as the trier of fact could have found that appellant was a primary

actor. In fact, the jury could have found from the evidence that appellant and Ramirez were both

primary actors. It was only later that appellant told Hoogstra that Ramirez pulled the trigger. This



                                                 12
fact was reiterated in appellant’s jail letter to McDowell. The jury was not required to accept this

evidence that Ramirez was the lone gunman. Given all the circumstances, we reject appellant’s claim

that the evidence was insufficient for a rational jury to find beyond a reasonable doubt that appellant

was a primary actor in this capital murder.

                Appellant also urges that if the evidence was sufficient to show that he was a party

to the offense for remuneration, the evidence is insufficient to show that he was guilty of capital

murder. Appellant argues that this is so because the indictment’s allegation of an aggravating element

making murder a capital offense was remuneration or the promise of remuneration.

                Appellant contends that the primary actor was Ramirez and that the court’s charge

did not require the jury to find that Ramirez murdered Nandin for remuneration or the promise of

remuneration, and that without that requirement and a finding by the jury, the offense was not a

capital offense. Therefore, appellant asserts that if he is guilty as a party to the offense, it is not a

capital offense of which he is guilty and that the conviction imposed cannot stand. Appellant

overlooks the law of parties and the fact that section 19.03(a)(3) provides that a person who commits

murder and “commits the murder for remuneration or the promise of remuneration or employs

another to commit the murder for remuneration or the promise of remuneration” is guilty of capital

murder. Tex. Pen. Code Ann. § 19.03(a)(3) (West 1994). (Emphasis added.) We do not understand

appellant to challenge the remuneration issue. In this regard, appellant cites no authorities and there

is no argument except that inherent in his assertion. This briefing fails to comply with Rule 38.1(h)

of the Texas Rules of Appellate Procedure.




                                                   13
                When different theories are submitted to the jury in the disjunctive as in the instant

case, a general verdict is sufficient if the evidence supports one of the theories. Fuller v. State, 827

S.W.2d 919, 931 (Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim.

App. 1991); see also Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999); Rabbani v. State,

847 S.W.2d 555, 558-59 (Tex. Crim. App. 1995). We conclude that a rational jury could have found

beyond a reasonable doubt all the essential elements of the offense charged under either of the two

theories submitted to the jury. The first point of error is overruled.


                                     Jury Charge Error Claimed

                In his second point of error, appellant contends that the “trial court committed

reversible error by overruling appellant’s objection to the application paragraph of the charge.” In

his brief, appellant directs us to the application of the law of parties to the facts in the second part of

paragraph 4 of the jury charge. Appellant, in his trial objection, contended that the State was not

entitled to a charge on the law of parties, that appellant was entitled to a “straight up” charge—“he

either did capital murder or he did not, under this indictment.” Appellant’s argument was that he was

charged with capital murder for remuneration or promise of remuneration and that Luis Ramirez, the

primary actor in any parties charge, was not shown to have committed murder for remuneration or

promise of remuneration. Therefore, appellant contends that he could not be a party to the offense

committed by Ramirez. This is the same contention that appellant advanced in his challenge to the

sufficiency of the evidence. Murder is defined in section 19.02(b)(1). Tex. Pen. Code Ann. §

19.02(b)(1) (West 1994).       Murder becomes capital murder if it is committed under certain

circumstances, limited and set forth in section 19.03. Id. § 19.03. Appellant was charged under

                                                    14
section 19.03(a)(3) which provides that murder becomes a capital offense if “the person commits the

murder for remuneration or promise of remuneration or employs another to commit the murder for

remuneration of promise of remuneration.” (Emphasis added.) As noted earlier, the law of parties

may be applied even without any parties allegation in the indictment. Pitts, 569 S.W.2d at 900.

There was evidence that Ramirez employed appellant to murder Nandin for remuneration or promise

of remuneration, thus indicating his guilt under the very same subsection of section 19.03 under which

appellant was charged. In addition, the evidence shows Ramirez was a primary actor in the murder

of Nandin along with his hired help—appellant.         Appellant cites no authorities supporting his

contention2 and his argument is of little persuasion. We find no error in the trial court’s action in

overruling the objection to the jury charge. The second point of error is overruled.


                                              The Note

                In the third point of error, appellant contends that the “trial court erred in admitting

into evidence an extraneous offense or bad act, in violation of Rule 403 of the Rules of Evidence.”

Despite the language, appellant presents an issue under Rule 403, not Rule 404(b).3 Appellant has

reference to the introduction of a handwritten note found in appellant’s wallet during the search of

the Mercury Cougar automobile in east Texas when appellant was arrested.




       2
         Appellant does cite Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996), for
the nature of errors which result in “egregious harm.” “Egregious harm” applies to a review of
charge error which was not preserved by timely objection. See Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985) (op. on reh’g). Here, appellant timely objected to the court’s charge.
       3
           Tex. R. Evid. 404(b).

                                                  15
                 Before the jury, Jack Allen, Special Investigator of the Texas Department of Public

Safety, identified the note on a yellow piece of paper and two business cards of Luis Ramirez as being

found in the wallet. When the State sought to introduce the note into evidence during the re-direct

examination of Dawn Ramirez Holquin, a hearing in the absence of the jury was conducted. The trial

court overruled appellant’s Rule 403 objection and his subsequently urged Rule 404(b) objection.

                 Appellant complains that the introduction of the note “permitted the jury to speculate

about an unaccomplished extraneous offense, the murder of Luis Ramirez’s ex-wife.” Appellant relies

upon the note and a threat made by Ramirez to his ex-wife, Dawn. Appellant concedes, however,

that the note is relevant evidence.4 He argues that in light of Rule 403 the note’s probative value was

outweighed by the danger of unfair prejudice and the needless presentation of cumulative evidence.

                 The note in question, which was in the handwriting of Ramirez according to Dawn,

gave highway directions from Brady to Austin and further directions to two different street addresses

in Austin and a general description of three motor vehicles. Dawn testified that the street addresses

were those of her home and her uncle’s home. Two of the vehicles described belonged to Dawn’s

uncle and the other was hers.

                 Dawn had earlier testified that Ramirez had told her it drove him crazy to think of her

with another man, and that if he found her with another man that he would kill him “and come after

her.”


        4
            Appellant’s brief states:

            The note itself was undoubtedly relevant evidence establishing a link between
            Ramirez and appellant.


                                                   16
                Rule 403 provides:


       Although 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 consideration of undue delay, or needless presentation of cumulative
       evidence.


Tex. R. Evid. 403


       The factors listed in Rule 403 are the only ones to be balanced against probative
       value. The absence of “such as” or a similar introductory phrase indicates that the
       listed factors are not merely examples. The first three factors—unfair prejudice,
       confusion and misleading—are termed “dangers,” whereas delay and cumulativeness
       are referred to as “considerations.” The former are weightier because they threaten
       the integrity of the fact-finding process, whereas the latter are concerned with
       efficiency.


2A Steven Goode, et al., Texas Practice: Courtroom Handbook on Texas Evidence 283 (2001 ed.).

                Rule 401 defines “relevant evidence.” Tex. R. Evid 401.5 Rule 402 pronounces all

relevant evidence admissible unless barred by certain constitutional and statutory provisions. Tex.

R. Evid. 402. Rule 403 places discretion in the trial court to temper somewhat the breadth of Rule

402. The trial court is authorized to weigh the probative value of relevant evidence against the

countervailing dangers and considerations set forth in Rule 403. Rule 403 favors the admissibility

of evidence in close cases in keeping with the presumptions of admissibility of relevant evidence.




       5
           Rule 401 states:

           “Relevant evidence” means evidence having any tendency to make the existence
           of any fact that is of consequence to the determination of the action more
           probable or less probable than it would be without the evidence.

                                                17
Moreno v. State, 22 S.W.3d 482, 487 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d

at 389); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). The standard of review of

a trial court’s decision under Rule 403 is an abuse of discretion. The trial court’s ruling will be

upheld so long as it is within “the zone of reasonable disagreement.” Lane v. State, 933 S.W.2d 504,

520 (Tex. Crim. App. 1996); see also Moreno, 22 S.W.3d at 487; Poole v. State, 974 S.W.2d 892,

897 (Tex. App.—Austin 1998, pet. ref’d).


                                         Unfair Prejudice

               We turn now to appellant’s claim that the probative value of the note was substantially

outweighed by the danger of unfair prejudice. Any evidence presented by the prosecution will

generally be prejudicial to the defendant in a criminal case. Wyatt v. State, 25 S.W.3d 18, 26 (Tex.

Crim. App. 2000); Ford v. State, 26 S.W.3d 669, 675 (Tex. App.—Corpus Christi 2000, no pet.).

“In one sense, almost every piece of evidence introduced at trial can be said to be prejudicial to one

side or the other.” Blakeney v. State, 911 S.W.2d 508, 516 (Tex. App.—Austin 1995, no pet.).

Consequently, only evidence that is unfairly prejudicial is excluded. Cabellero v. State, 919 S.W.2d

919, 922 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Blakeney, 911 S.W.2d at 516. Unfair

evidence is that evidence which has an undue tendency to suggest a decision be made on an improper

basis, commonly an emotional one. Montgomery, 810 S.W.2d at 389; Ford, 919 S.W.2d at 922.

               Appellant contends that the note in Ramirez’s handwriting and found in appellant’s

possession, when taken with Ramirez’s threat to Dawn, could have caused the jury to speculate a

second conspiracy was afoot. Thus, the introduction of the note resulted in unfair prejudice. The

note was not signed and not dated. It was not addressed to anyone. Dawn moved to Austin in

                                                 18
December 1997. She testified that Ramirez had visitation rights with their children and he had

returned them to Austin one weekend. Dawn related that Nandin visited her in Austin the last

weekend in March 1998 before his death on April 8, 1998. The time of the threat against all of

Dawn’s boyfriends was not established, but it was apparently after the Ramirez divorce in 1995.

               Appellant urges that we apply the four-pronged relevance criteria set forth in

Montgomery, 810 S.W.2d at 389-91, for determining whether the probative value of an extraneous

offense is substantially outweighed by the danger of unfair prejudice. Appellant overlooks the fact

that the introduction of the note, even taken together with the earlier threat by Ramirez, does not

constitute an extraneous offense by appellant Bell6 to which the relevance criteria would apply.7

               The probative value of the note found in appellant’s wallet with Ramirez’s business

cards was not substantially outweighed by the danger of unfair prejudice.


                                       Cumulative Evidence

               Unlike the “danger” of unfair prejudice, the “consideration” of the needless

presentation of cumulative evidence found in Rule 403 is concerned with the efficiency of judicial

proceedings rather than the threat of inaccurate decisions. See Alvarado v. State, 912 S.W.2d 199,

212-13 (Tex. Crim. App. 1998). “Cumulativeness” alone is not a basis for the exclusion of evidence

under Rule 403. The rule speaks to the “needless presentation” of such evidence. In this regard, trial

       6
          See Brown v. State, 6 S.W.3d 571, 575 (Tex. App.—Tyler 1999, pet. ref’d); Conner v.
State, 891 S.W.2d 668, 671 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
       7
          Appellant acknowledges that subsequent to the introduction of the note, the trial court
refused to admit the testimony of Ginger Herring, Ramirez’s girlfriend to the effect that she overheard
Ramirez and appellant talking about going to Austin and killing Ramirez’s ex-wife, her uncle and
possibly her mother. This disallowed evidence was never before the jury.

                                                  19
courts should be sensitive to a party’s “right” to make its case in the most persuasive manner possible.

Etheridge v. State, 903 S.W.2d 1, 20-21 (Tex. Crim. App. 1994); see also generally 1 Steven Goode,

et al., Texas Practice: Texas’ Rules of Evidence: Civil and Criminal § 403.2 (1993).

                Cumulative evidence suggests that other evidence on the same point has already been

received. But this alone is not a basis for exclusion. The cumulative effect of the evidence may

heighten rather than reduce its probative value. Further, evidence that may be cumulative as to one

point may not have that characteristic as to another material point. Goode, § 403.2.

                In this “murder for hire scenario”, the State bore the burden of proof beyond a

reasonable doubt and the link between appellant and Ramirez was of vital importance. The strongest

evidence of a link came from Hoogstra and appellant’s jail letter introduced by the State. Appellant

impeached and discredited Hoogstra by showing, inter alia, that Hoogstra had received hundreds of

dollars from several law enforcement agencies early on in the investigation. Appellant also used

statements in his jail letter to support his defense of duress. If it can be argued that appellant’s

possession of the note written by Ramirez was cumulative evidence of the link between the two, it

was not inadmissible on the basis of needless presentation of cumulative basis. Moreover, the State

urges that the note was admissible to rebut the defense of duress.

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

Rule 403 objection. The third point of error is overruled.

                The judgment is affirmed.




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                                            John F. Onion, Jr., Justice

Before Justices Kidd, Puryear and Onion*

Affirmed

Filed: November 29, 2001

Do Not Publish




*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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