Brown, Anthony Keith v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-02-00987-CR ____________ ANTHONY KEITH BROWN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 905477 MEMORANDUM OPINION A jury found appellant, Anthony Keith Brown, guilty of burglary of a habitation with intent to commit theft, and the trial court assessed punishment at 15 years’ confinement in prison. In two issues, appellant contends that the trial court erred in excluding relevant evidence and in admitting extraneous-offense evidence. We affirm. Background Appellant and Lois Bradley dated and lived together in Bradley’s house until their relationship ended in the spring of 1991. Although appellant moved out of Bradley’s house following the breakup, he occasionally returned to her house and requested money. Bradley refused appellant’s requests on these occasions and was sometimes forced to call the police to have him removed from her property. On March 14, 2002, appellant knocked at Bradley’s front door and again requested money. Bradley did not open the door, but instead telephoned the police. Appellant, meanwhile, went to the back of the house and broke through a back door. He damaged both the door and a kitchen drawer in the process. Once inside the house, appellant grabbed Bradley, dragged her into a hallway, and demanded that she give him money. Houston Police Officer Robert Campbell arrived at the house and encountered appellant holding Bradley around her neck. Appellant was subsequently arrested. Issue One: Relevant Evidence In his first issue, appellant contends that the trial court erred in excluding, on relevancy grounds, evidence that Bradley deposited money into appellant’s commissary fund at the Harris County Jail following his arrest. Appellant argues that this evidence was relevant because it tends to show that he received consent to enter Bradley’s house. Relevant evidence tends to make the existence of a consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. Irrelevant evidence is inadmissible. King v. State, 17 S.W.3d 7, 20 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We review a trial court’s ruling on the relevancy of evidence under an abuse of discretion standard. Id. We defer to a trial court’s decision to admit or exclude evidence on relevancy grounds, and we may not simply substitute our judgment for that of the trial court. Moses v. State, No. 2093-01, slip op. at 7 (Tex. Crim. App. May 21, 2003). Rather, we will reverse a trial court’s ruling only if it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Appellant argues that the trial court abused its discretion in excluding evidence that Bradley deposited money into his commissary fund because the evidence was relevant to show that he and Bradley maintained an “ongoing relationship” which, according to appellant, supports his assertion that Bradley consented to his entry into the house. Assuming, arguendo, that Bradley did deposit money into appellant’s commissary fund, we cannot conclude that the trial court acted outside the zone of reasonable disagreement in finding that this evidence would not make the jury’s determination of whether appellant entered Bradley’s house without consent more or less probable than it would be without the evidence. See Tex. R. Evid. 401; Torres, 71 S.W.3d at 760. At trial, appellant introduced evidence that he had an ongoing relationship with Bradley. Bradley’s testimony that she had communicated with appellant after his arrest supported appellant’s assertion that their relationship was ongoing. Given that testimony, we decline to substitute our judgment for that of the trial court to find that further details of the ongoing relationship were relevant to the issue of consent. See Fuentes v. State, 832 S.W.2d 635, 638-39 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding that details of prior problems between defendant and his cousin were not relevant when trier of fact heard that prior problems existed). Accordingly, we hold that the trial court did not abuse its discretion when it excluded evidence that Bradley deposited money into appellant’s commissary fund. We overrule issue one. Issue Two: Extraneous-Offense Evidence In his second issue, appellant contends that the trial court erred in admitting evidence of an extraneous offense. Appellant testified at trial regarding a felony aggravated assault conviction that he received in 1990. Appellant admitted the conviction and did not object when the State questioned him further about the conviction. Consequently, appellant waived any argument about the admission of this conviction, and nothing is preserved for our review. Tex. R. App. 33.1; Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). We overrule issue two. Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Chief Justice Radack and Justices Alcala and Higley. Do not publish. Tex. R. App. P. 47.4.