i          i        i                                                                i       i      i




                                  MEMORANDUM OPINION

                                         No. 04-07-00773-CR

                                             Israel MATA,
                                                Appellant

                                                   v.

                                            STATE of Texas,
                                               Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2005-CR-4565B
                            Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 15, 2009

AFFIRMED

           A jury found appellant Israel Mata guilty of murder and sentenced him to life imprisonment.

In two issues, Mata argues the trial court abused its discretion in denying his motion for mistrial and

in admitting certain evidence. We affirm.
                                                                                      04-07-00773-CR

                                          BACKGROUND

       The evidence at trial showed Mata and his brother, Arturo Mata, were responsible for a gang-

related, drive-by shooting that caused the death of a thirteen-year-old girl. The victim was not the

intended target, but a bystander. The shooting took place shortly before 5:30 p.m. on March 3, 2005,

in San Antonio, Texas. The shooter, whose face was partially covered by a bandana, fired a handgun

while kneeling in the back of a truck. Eyewitnesses identified Arturo as the driver of the truck used

in the drive-by shooting, but were unable to identify Mata as the shooter. However, one witness,

Michael Reyes, testified he was with Mata immediately after the shooting, and he heard Mata admit

he was the shooter.

       Specifically, Reyes testified that he watched television with Mata, Arturo, and several other

individuals after the shooting took place. Everyone seemed interested in a news story about a girl

who had been shot. Mata did not seem to want to watch the news story, and kept telling the others

to turn it off or to watch something else. Reyes then overheard a conversation between Mata and

Arturo about the news story. Mata said to Arturo that they had shot a girl in the head. Then, Mata

and Arturo discussed how the shooting happened: Arturo was driving, Mata was lying in the back

of the truck, and when they stopped in front of the house, Mata got up and started shooting. Later

that night, Reyes drove the Mata brothers and one of their cousins to Port Aransas, Texas. During

this drive, the passengers listened to loud music, drank, and smoked. Sometimes the passengers

turned down the music volume, which allowed Reyes to hear their conversations. Reyes overheard

Mata say, “I think I shot a girl in the head.” According to Reyes, Mata seemed scared, and said he

was planning to go to Mexico to escape from the police. Reyes also testified he was reluctant to tell




                                                 -2-
                                                                                       04-07-00773-CR

police about the Matas’ involvement in the shooting because he feared for his safety and the safety

of his family.

                                  DENIAL OF MOTION FOR MISTRIAL

        In his first issue, Mata argues the trial court abused its discretion in denying his motion for

mistrial. During the State’s direct examination of Mata’s sister, Leticia Rodriguez, the following

exchange took place:

        Prosecutor:    And do you remember telling the police that you knew your brothers
                       carried weapons sometimes?

        Witness:       No, sir.

        Prosecutor:    You don’t remember telling the police that? It was videotaped.

        Witness:       That they carried weapons?

        Prosecutor:    Pardon me?

        Witness:       That I said they carried weapons?

        Prosecutor:    That you admitted that—

        Defense counsel then objected, stating the prosecutor’s line of questioning violated the trial

court’s limine order. The limine order required a hearing outside the presence of the jury prior to the

admission of any extraneous offenses or misconduct. The trial court sustained the objection, and

defense counsel asked the trial court to instruct the jury to disregard the last question and answer.

The trial court so instructed the jury. Defense counsel then made a motion for a mistrial which the

trial court denied.

        We review the denial of a motion for mistrial under an abuse of discretion standard. Hawkins

v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Dossett v. State, 216 S.W.3d 7, 31 (Tex.

App.—San Antonio 2006, pet. ref’d). Ordinarily, a prompt instruction to disregard will cure error


                                                  -3-
                                                                                       04-07-00773-CR

associated with an improper question and answer, even one regarding extraneous offenses. Ovalle

v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A mistrial is appropriate only for a narrow

class of highly prejudicial and incurable errors and may be used to end trial proceedings when the

error is so prejudicial that expenditure of further time and expense would be wasteful and futile.

Hawkins, 135 S.W.3d at 77; Dossett, 216 S.W.3d at 31. To determine if the trial court abused its

discretion in denying the motion for mistrial, we consider (1) the magnitude of the prejudicial effect;

(2) the measures adopted to cure the error; and (3) the certainty of conviction absent the erroneous

admission of evidence. Hawkins, 135 S.W.3d at 75; Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998).

       After considering these factors, we conclude the trial court did not abuse its discretion in

denying the motion for mistrial. First, the prejudicial effect was minimal in this case. The witness

never actually revealed any evidence to the jury about misconduct by Mata. Instead, the witness

denied telling police that her brothers sometimes carried weapons, and her testimony on the subject

was never impeached by other evidence. Moreover, “[t]he asking of an improper question, by itself,

will seldom call for a mistrial.” Moore v. State, 882 S.W.2d 848, 847 (Tex. Crim. App. 1994).

Second, the measures adopted to cure the error were adequate. Here, the trial court promptly gave

the jury an instruction to disregard the last question and answer. A reviewing court generally

presumes the jury followed the trial court’s instructions, unless this presumption is rebutted. Thrift

v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Mata does not point to anything in the record

indicating the jury did not follow the trial court’s instruction. Thus, Mata has not rebutted this

presumption that the jury followed the trial court’s instruction to disregard. Finally, there were

sufficient grounds for the jury to convict regardless of the complained-of question and answer.



                                                  -4-
                                                                                       04-07-00773-CR

Considered as a whole, the trial evidence showed the Mata brothers engaged in a drive-by shooting

to retaliate against a member of a rival gang. Additionally, the evidence showed Mata admitted his

involvement in the shooting several times.

        Having determined the trial court did not abuse its discretion in denying Mata’s motion for

new trial, we overrule his first issue.

                                 EXTRANEOUS OFFENSE EVIDENCE

        In his second issue, Mata argues the trial court abused its discretion when it allowed the

admission of extraneous offense evidence that Mata was involved in drug dealing.

        Although evidence of extraneous offenses may not be used against a defendant in a criminal

trial, this general prohibition against the admission of extraneous offenses carries with it numerous

exceptions. Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005); TEX . R. EVID . 404(b).

Evidence of other crimes, wrongs, or acts “may...be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” TEX . R. EVID . 404(b). Rule 404(b) allows evidence of other crimes, wrongs, or acts if the

evidence has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622, 626 (Tex.

Crim. App. 2003). Extraneous offenses are admissible to rebut defensive theories raised by the

testimony of a State’s witness during cross-examination. Ransom v. State, 920 S.W.2d 288, 301

(Tex. Crim. App. 1994); see also Powell v. State, 63 S.W.3d 435, 438-39 (Tex. Crim. App. 2001).

“The issue does not necessarily turn on the type of defense presented, but on whether the extraneous-

offense evidence has noncharacter-conformity relevance by, for example, rebutting a defensive

theory or making less probable defensive evidence that undermines an elemental fact.” Bass v. State,

270 S.W.3d 557, 563 n.8 (Tex. Crim. App. 2008).



                                                 -5-
                                                                                        04-07-00773-CR

       Texas Rule of Evidence 403 provides that, “[a]lthough relevant, evidence may be excluded

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

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

cumulative evidence.” TEX . R. EVID . 403. Thus, a trial court may exclude any relevant evidence if

its probative value is substantially outweighed by any or all the countervailing factors specified in

Rule 403. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).

       Because trial courts are in the best position to make the call on these substantive admissibility

questions, an appellate court reviews the trial court’s decision to admit extraneous offense evidence

under an abuse of discretion standard. Powell, 63 S.W.3d at 438. This standard requires an appellate

court to uphold a trial court’s admissibility decision when that decision is within the zone of

reasonable disagreement. Id.

       During his cross-examination of Reyes, defense counsel asserted it was not plausible for

Mata to have made incriminating statements about the shooting in front of Reyes, or for Reyes to

have been reluctant to tell the whole truth to police. Defense counsel elicited testimony that Reyes

had made several written statements about the events following the shooting and the information

revealed in these statements varied. Finally, defense counsel elicited testimony about Reyes’s drug

use. After Reyes’s cross-examination, and outside the jury’s presence, the prosecutor stated:

       Judge, I’d like to go into [Reyes’s] relationship with Israel Mata, because the fact of
       the matter is, I believe [defense counsel] has opened the door. Israel trusted this
       witness because this witness would run drugs for Israel. [Reyes] handled [Mata’s]
       drugs, he handled his money, okay. And so I think because of the impressions left
       during cross-examination that I need to establish some of the reasons why this
       witness was reluctant to give up Israel. And I need—I think the fact that they were
       all involved in the drug trade, as it were, for these years that they’d known each other,
       comes into play because he’s left an impression that [Reyes is] the only one that’s
       involved in this stuff. I don’t want to, you know, make a big deal out of it. But I think



                                                  -6-
                                                                                       04-07-00773-CR

       that the jury should know that there’s a reason for the relationship and the reluctance
       of this witness to tell the police what he knows.

Defense counsel opposed the admission of evidence of Mata’s drug dealing based on Rule 404(b)

and 403 of the Texas Rules of Evidence. Nevertheless, the trial court ruled the evidence would be

admitted for the limited purpose of showing the relationship between Mata and Reyes. On re-direct

examination, Reyes testified he had helped Mata with drug dealing in the past and Mata trusted him.

Specifically, Reyes stated he rented cars and drove Mata to sites to drop off drugs and other items.

Reyes also testified he collected money and handled drugs on Mata’s behalf.

       Under the circumstances of this case, the trial court could have reasonably concluded that

evidence of Mata’s drug dealing had some logical relevance aside from character conformity.

Defense counsel’s cross-examination of Reyes arguably left the impression that Reyes’s relationship

with Mata was not the kind of relationship in which Mata would make incriminating statements in

Reyes’s presence. Defense counsel’s cross-examination also arguably left the impression that

Reyes’s written statements varied because he was worried about his own legal situation, rather than

about his safety and the safety of his family.

       Similarly, the trial court could have reasonably concluded the probative value of Mata’s drug

dealing was not outweighed by the danger of unfair prejudice. In deciding to admit the extraneous

offense evidence, the trial court reasoned that in the context of the other evidence admitted at trial,

including evidence of Mata’s gang membership, evidence of Mata’s drug dealing was not unfairly

prejudicial. Because the trial court’s decision to admit the extraneous offense evidence was within

the zone of reasonable disagreement, the trial court’s decision must be upheld. See Powell, 63

S.W.3d at 438 (holding trial court could have reasonably decided extraneous offense evidence had




                                                  -7-
                                                                                        04-07-00773-CR

noncharacter conformity relevance, and therefore, did not abuse its discretion in admitting

extraneous offense evidence).

        However, even assuming it was error to admit the extraneous offense evidence, we could

not reverse Mata’s conviction unless the error affected his substantial rights. Under Texas Rule of

Appellate Procedure 44.2(b), a non-constitutional error “that does not affect substantial rights must

be disregarded.” TEX . R. APP . P. 44.2(b). Substantial rights are not affected by the erroneous

admission of evidence if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002).

       After examining the record as a whole, we conclude any error did not influence the jury, or

had but a slight effect. In the charge, the jury was instructed that the evidence of Mata’s drug dealing

could only be considered for the limited purpose of determining the relationship between Reyes and

Mata. Additionally, the State did not mention Mata’s drug dealing in its closing argument, and thus,

this evidence was not emphasized before the jury. We conclude Mata’s substantial rights were not

affected by the admission of the extraneous offense evidence, and therefore, any error must be

disregarded. Issue two is overruled.

                                            CONCLUSION

       The judgment of the trial court is affirmed.

                                                        Karen Angelini, Justice



DO NOT PUBLISH




                                                  -8-
