Boudreaux, Clarence Joseph v. State

Affirmed and Memorandum Opinion filed August 24, 2004 Affirmed and Memorandum Opinion filed August 24, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00275-CR ____________ CLARENCE JOSEPH BOUDREAUX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 914,510 M E M O R A N D U M   O P I N I O N The jury convicted appellant of burglary of a habitation with the intent to commit assault, enhanced with a prior conviction for theft. The trial court found true the allegations in the enhancement paragraph and assessed punishment of twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant contends the trial court erred by admitting evidence of five extraneous assaults and threats. We affirm. FACTUAL AND PROCEDURAL SUMMARY On June 8, 2002, appellant telephoned the home of Debra Boudreaux, his ex-wife, where she lived with their two children, Michelle, age seventeen, and Michael, age thirteen. Michelle answered and, at her mother=s instructions, told appellant he could not speak to Debra. Appellant immediately called again, stating he needed to come to the house. Michelle again refused to let him speak with her mother and hung up. Michelle did not answer appellant=s next call and appellant left a message on the answering machine saying he was coming to the house, that there would be a confrontation, and that the police would need to be called. He left additional messages, saying in one that he needed to pick up an oil pan and welder=s torch left at the house. Michelle and Debra testified that appellant sounded extremely intoxicated and angry during these calls. Debra placed the oil pan and welder=s torch on the sidewalk, near the mailbox, so appellant would have no reason to come in the house. Approximately thirty minutes after the last phone call, as she was driving away from the house, Michelle saw appellant riding in a truck that was heading towards the house. She followed the truck until it parked and appellant began walking towards the house. Michelle testified that appellant appeared intoxicated and angry. As Michelle drove past appellant, they yelled obscenities at one another, and Michelle testified that appellant told her he was going to beat her. Honking the car horn to alert Debra, Michelle parked in the driveway and tried to call 911. Debra came out of the house and, upon seeing appellant, yelled at Michelle to get inside. They both ran inside the house as appellant approached. While Michelle locked the door and deadbolt, Debra hid in a bathroom. Just before fleeing to the backyard, Michelle watched through a small window in the door as appellant approached the house and kicked in the door. The door frame and lock broke and appellant entered. Although neither Debra nor Michelle saw appellant inside the house, both testified they could hear appellant screaming from within the house. A neighbor, Phyllis Odom, testified that she saw appellant inside the house from across the street. After less than a minute, appellant exited to the front yard. He then punched the garage door. Hearing the punch and thinking appellant was hitting her mother, Michelle ran back through the house to the front yard where she and appellant once again began yelling at one another; when Ms. Odom stepped between them, appellant pushed her to ground. Appellant then walked down the street, but had turned back towards the house when law enforcement arrived. He was immediately taken into custody. While handcuffed in the back seat of a patrol car, he continued to scream and yell, bang his head against the car window, shake the car, and make obscene gestures towards Michelle and Debra. The oil pan and welder=s torch remained untouched on the sidewalk. Appellant was charged with burglary of a habitation with the intent to commit assault. See Tex. Pen. Code ' 30.02(a). At trial, the State sought to introduce testimony of appellant=s conduct on other occasions to show that he entered the residence intending to commit assault. Following direct and cross-examination of Michelle, the trial court held a voir dire hearing to elicit Michelle=s testimony of prior threats and assaults against her, Debra, and Michael. Following the hearing, appellant objected under Texas Rules of Evidence 403 and 404(b), asserting the extraneous acts were irrelevant and prejudicial. The trial court deferred ruling on the extraneous acts until direct and cross-examination of Debra were completed. Upon conclusion of Debra=s testimony, and outside the presence of the jury, the State argued that the extraneous acts were necessary to show intent to commit assault and that appellant=s cross-examination of the State=s witnesses made intent an issue for which the extraneous acts could be introduced to rebut. Over appellant=s objections to Debra=s testimony, the trial court admitted into evidence five instances of previous conduct: 1. On December 14, 2001, appellant was arrested and jailed for assault after he pushed Debra=s head against a wall, kicked her in the back onto the front lawn, and locked her out of the house; 2. On January 19, 2002, appellant knocked on Debra=s door and window in violation of a Magistrate=s Order for Emergency Protection; 3. On May 18, 2002, appellant called Debra several times and threatened to kill her if she did not change her last name; 4. On May 30, 2002, appellant assaulted Michael for not closing a barbeque grill fast enough; and 5. On May 31, 2002, appellant made several threatening phone calls stating he was on his way to the house to kill Debra, Michelle, and Michael. The trial court did not allow other testimony regarding an assault against Michelle that occurred approximately two years earlier, or assaults against Michelle and Debra that occurred approximately five years earlier. The trial court=s charge to the jury included a limiting instruction that the jury was to consider any extraneous acts or offenses only if they found and believed beyond a reasonable doubt that the appellant committed the offenses, and only in order to determine motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant.[1] ANALYSIS Appellant contends that the trial court erred in admitting evidence of the extraneous acts because the acts were irrelevant and prejudicial under Texas Rules of Evidence 403 and 404(b). Appellant asserts the extraneous acts should not be considered relevant under Rule 404(b) because intent to commit assault was determinable from the act itself and because intent was never contested at trial. Additionally, appellant asserts that even if the evidence was relevant, its prejudicial effect substantially outweighed its probative value, meaning it should have been omitted under the Rule 403 balancing test. We review a trial court=s ruling on the admission of extraneous acts into evidence for an abuse of discretion. Rankin v. State, 947 S.W.2d 707, 718 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (op. on reh=g). AA trial court clearly abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.@ Foster v. State, 909 S.W.2d 86, 88 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (citing Montgomery, 810 S.W.2d at 391). Because reasonable minds could disagree whether appellant=s intent was clearly evident from the act itself and whether intent was contested at trial, we conclude the trial court did not abuse its discretion in determining that the extraneous acts were relevant under Rule 404(b). Additionally, we find that the trial court did not err when it applied the Rule 403 balancing test. We first consider the relevance of the extraneous acts. VI. Because They Assisted the Trier of Fact to Determine Appellant=s Intent when He Entered the House, the Extraneous Acts were Relevant under Texas Rule of Evidence 404(b). Appellant first contends the extraneous acts were irrelevant under Rule 404(b) because (1) the jury could infer his intent during the June 8th incident from the act itself and the surrounding circumstances, including his conduct and speech; and (2) he never contested intent during trial. Before reaching these specific issues, we review the law governing the admission of extraneous acts under Rule 404(b); it is a three-part inquiry. Evidence of an extraneous offense is not admissible to prove character conformity, but may be admissible for other purposes, including proof of intent. Tex. R. Evid. 404(b). Rule 404(b) is intended to ensure that a defendant is tried for the offense he allegedly committed and not for previous acts or bad character traits. Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). For the extraneous act to be admitted, the State must show that it is relevant to a Afact of consequence@ contested in the case. Rankin, 974 S.W.2d at 709; Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972); McGee v. State, 725 S.W.2d 362, 364 (Tex. App.CHouston [14th Dist.] 1987, no pet.). Thus, the State must prove three elements: relevance and a dispute regarding a fact of consequence. We address each element in turn, beginning with whether the extraneous acts relate to a fact of consequence. Intent is a fact of consequence when the indictment requires the State to show beyond a reasonable doubt that a defendant committed an act with a specific intent. See Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim. App. 1985) (A[W]here intent or guilty knowledge is an essential element of the offense which the State must prove to obtain a conviction, its materiality goes without saying.@). In this case, the indictment required the State prove beyond a reasonable doubt that appellant entered the house with the specific intent to commit assault. Thus, appellant=s intent was a fact of consequence. An extraneous act is relevant if it serves to make an elemental fact more or less probable. Tex. R. Evid. 401; Montgomery, 810 S.W.2d at 387B88. Because appellant=s previous conduct made it more probable that he entered the house with the intent to commit assault, evidence of this conduct was relevant. The third element requires that intent be in dispute. A simple plea of not guilty does not create a dispute regarding intent, but intent may be characterized as contested if the required intent cannot be inferred from the act itself, or if a defendant presents evidence to rebut an inference that the required intent existed. Robbins v. State, 88 S.W.3d 256, 260B61 (Tex. Crim. App. 2002); Ludwig v. State, 969 S.W.2d 22, 30 (Tex. App.CFort Worth 1998, pet. ref=d) (citing Johnson v. State, 932 S.W.2d 296, 302 (Tex App.CAustin 1996, pet. ref=d)); McGee, 725 S.W.2d at 364 (citing Ortega, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981)). Accordingly, extraneous acts may not be admitted to show intent when (1) the trier of fact can determine intent from the act itself, and (2) a defendant does not make intent a contested issue either through questions asked or evidence present. Rankin, 974 S.W.2d at 719; Ortega, 626 S.W.2d at 749. However, if either requirement is not met, then intent may be characterized as contested. See Hudson v. State, 112 S.W.3d 794, 803 (Tex. App.CHouston [14th Dist.] 2003, pet. filed) (citing Ludwig, 969 S.W.2d at 30). Appellant contends he satisfied both of these requirements, meaning the trial court should not have admitted the extraneous acts because intent was never in dispute. Because we find appellant made intent a contested issue, we address only that requirement. A. Through his Cross-examination of the State=s Witnesses, Appellant Made Intent a Contested Issue. Appellant clearly created an issue regarding intent based on his cross-examination of Michelle and Debra. Appellant=s counsel questioned both Michelle and Debra whether appellant intended simply to pick up the oil pan and welder=s torch and leave, potentially undermining the State=s direct evidence by creating the impression that appellant entered the house only to recover his tools. Additionally, Michelle acknowledged on cross-examination that appellant did not damage the interior of the house and had not acted on previous threats. The responses of the State=s witnesses raised the defensive theory that appellant did not enter the house with the intent to commit assault. See Albrecht, 486 S.W.2d at 102 (noting that responses from the witnesses during cross-examination determine whether the State=s direct evidence has been undermined). If defensive theories are raised by the State=s witnesses on cross-examination, extraneous acts may be introduced into evidence to rebut such theories. Robbins, 88 S.W.3d at 261 (stating that a defendant puts intent at issue through vigorous cross-examination and the presentation of defensive theories); Webb v. State, 36 S.W.3d 164, 180 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (citing Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994)). The trial court=s actions at trial showed it considered all of the testimony before arriving at its decision to admit the extraneous acts, thus following the standard set out in Rankin and Ortega. See Rankin, 974 S.W.2d at 719; see also Ortega, 626 S.W.2d at 749. It deferred ruling on admitting the extraneous acts until after it had heard the direct and cross-examination of Michelle and Debra, the proffered testimony from Michelle, and appellant=s objections. By this time, appellant had created a doubt regarding appellant=s true intent by pointing to the following: appellant told Michelle and Debra he wanted to pick up his oil pan and welder=s torch; appellant did not damage the house; and appellant had not carried out previous threats. We cannot say the trial court abused its discretion in determining the extraneous acts were relevant to countering any doubt regarding appellant=s intent raised by the cross-examination of the State=s witnesses.[2] Because we find appellant made intent a contested issue, appellant cannot satisfy both of the requirements needed to show error in admitting extraneous acts under Rule 404(b). Therefore, we do not address the issue whether appellant=s intent was evident from the act and surrounding circumstances of the June 8th incident. VII. Applying the Balancing Test of Texas Rule of Evidence 403, the Trial Court Did Not Err in Finding that the Probative Value of the Extraneous Acts Was Not Substantially Outweighed by the Danger of Unfair Prejudice. Appellant also contends that even if the evidence was relevant under Rule 404(b), its prejudicial effect substantially outweighed its probative value and, therefore, it should have been omitted under Rule 403. Upon proper objection, once the trial court finds an extraneous act relevant under 404(b), it must also assess the evidence under the balancing test of Rule 403. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Under Rule 403, relevant evidence may be excluded Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by undue delay, or needless presentation of cumulative evidence.@ Tex. R. Evid. 403. If a trial court determines that evidence is probative of a material issue other than character under Rule 404(b), then a presumption of admissibility exists. Montgomery, 810 S.W.2d at 388B89. In weighing the probative value of the evidence under Rule 403, the trial court considers (1) the evidence=s inherent probative value; (2) its potential to impress the jury in some irrational but nevertheless indelible way; (3) the amount of time the proponent needs to develop the evidence; and (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish the fact at issue. Santellan, 939 S.W.2d at 169; Peters v. State, 93 S.W.3d 347, 351 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). A[R]eviewing for abuse of discretion in this context requires more than deciding whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court's determination must be reasonable in view of all relevant facts.@ Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996) (citing Montgomery, 810 S.W.2d at 392), cert. denied, 519 U.S. 1043 (1996). Because all four of the above factors weigh in favor of admission, the trial court did not abuse its discretion in determining the probative value of appellant=s prior acts was not substantially outweighed by the danger of unfair prejudice. As to the first factor, once intent to commit assault became a contested issue through appellant=s cross-examination of Michelle and Debra, the extraneous acts possessed inherent probative value because, by their nature and similarity to the June 8th incident, they provided proof of appellant=s intent when he broke through the front door. Applying the second factor, any potential to impress the jury in some irrational but nevertheless indelible way was minor and not compelling enough to exclude the evidence. The extraneous acts were not presented or described in an inflammatory manner. The testimony was not extensive, occupying only fourteen pages of over 200 pages of testimony, and the five extraneous acts were addressed briefly and directly over those fourteen pages. Additionally, the trial court properly limited consideration of the extraneous acts by instructing the jury that it had to believe beyond a reasonable doubt that appellant committed the acts and then could consider the acts only for determining appellant=s intent in entering the house. The third factor also favors admissibility of the evidence. As noted above, testimony of the extraneous acts was limited in comparison to the rest of the State=s evidence and did not require a significant amount of time to develop. Finally, applying the fourth factor, appellant cross-examined the State=s witnesses in a manner that arguably put the State=s evidence into doubt. The extraneous acts added a historical context which helped the State prove a fact at issue and assisted the jurors to determine appellant=s intent at the time of the alleged offense. We find the trial court=s determination was reasonable in view of all relevant facts. Accordingly, we overrule appellant=s point of error. VIII. Conclusion We conclude the trial court did not abuse its discretion in admitting the extraneous acts as relevant to and probative of appellant=s intent to commit assault. We affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed August 24, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] In his brief, appellant also contends that the trial court, in its charge to the jury, committed reversible error by including all the non-character conformance purposes listed in Rule 404(b), rather than limiting consideration of the extraneous acts exclusively to the issue of intent. Because appellant failed to object at trial to the wording of the court=s charge, appellant waived any error on this issue. See Tex. R. App. P. 33.1(a)(1). [2] Even if the trial court had erred in determining the evidence was relevant, the error would have been made harmless by appellant=s questioning of Michelle Boudreuax during his defense. See Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). AWhere an extraneous offense is improperly admitted during the State=s case‑in‑chief, the error is rendered harmless if the defendant subsequently presents a defensive theory that authorizes the admission of the same evidence in rebuttal.@ Webb, 36 S.W.3d at 185 n.4 (citing Macias v. State, 776 S.W.2d 255, 258 (Tex. App.CSan Antonio 1989, pet. ref=d)). During rebuttal, Michelle agreed that if appellant had really intended to assault her, he could easily have done so: Q. If your father had had the intent to beat the bajeebers out of you he could have chased you through the house into that backyard and you would have been trapped? A. Correct. Q. Did he go into that backyard? A. Yes B or no, he didn=t go in the backyard. He stayed in the house. Q. He did not go in the backyard? A. No, he didn=t. Q. And beat you up? A. No, he didn=t. Q. But had he intended to assault you, you would have been a sitting duck back there? A. Correct.