No. 01-07-00780-CR
Opinion issued July 3, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.4.
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 1061270.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
JANE BLAND, Justice.
A jury convicted appellant Leon Lugo Andrade of murder and assessed punishment at life in prison. See TEX. PENAL CODE ANN. § 19.02 (Vernon 2003). In his sole issue on appeal, Andrade contends that the trial court erred in allowing the State to introduce certain extraneous offense evidence about his history of jealousy, anger, and violence toward his estranged wife. We affirm.
Background
William Huang, the owner of a seafood restaurant, walked out of the restaurant after closing on March 12, 2006 with Maritza Andrade and her mother, Serefina Flores. At the time of the offense, Flores was Andrade's estranged wife. Maritza saw her father, Andrade, drive by the front of the restaurant in his van, turn the van around, and then stop behind her mother's truck. As Andrade exited his van, he asked who Huang was; Maritza responded that he was their employer. Andrade continued asking about Huang's identity, and Maritza testified that he seemed drunk and angry. Andrade retrieved a machete from his van and began chasing Huang around her mother's truck and Huang's van. Huang stopped running at a dead end in an alley along the side of the restaurant, and Andrade hit him multiple times with the machete. Andrade fled the scene in his van. When Houston Police Officer Gerald Welch arrived, he found Huang lying in the alley facedown in a pool of blood with a large gash in the back of his head. Police arrested Andrade months later in West Virginia. At trial, Andrade objected to testimony regarding his history of jealousy, anger, and violence toward Flores. The trial court allowed the State to elicit testimony that Andrade was jealous of his wife and had made threats in the past based on that jealousy. Extraneous Offenses
Andrade contends that the trial court erred in allowing the State to introduce extraneous offense evidence that Andrade was a jealous man, who would get angry at Flores for talking to other men, would get drunk, had threatened to harm her, and had been violent with her in the past. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). An abuse of discretion occurs only when the trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery, 810 S.W.2d at 391; Roberts, 29 S.W.3d at 600. Outside the presence of the jury, the State expressed its desire to elicit testimony from Flores that Andrade had threatened her, had abused her, was jealous, and was angry. Andrade objected that the probative value of such testimony would be outweighed by the danger of unfair prejudice. The trial court ruled that the State could briefly go into the fact that the relationship between Andrade and Flores was contentious, that Andrade was a jealous individual, that he had threatened her in the past because of this jealousy, and that the jealousy had manifested itself in violence. During the conference, the State did not raise — and Andrade did not object to — the issue of Andrade's drinking. Thereafter, Flores testified without objection that Andrade would get drunk during their marriage. Similarly, Andrade did not object when Maritza also testified that he drank. To preserve error for appeal, Andrade was required to raise an objection to the trial court at the earliest possible opportunity. See TEX. R. APP. P. 33.1 (requiring that the trial record reflect complaint made at trial as prerequisite to presenting complaint for appellate review); see also Goldberg v. State, 95 S.W.3d 345, 368 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (requiring that a timely objection be made as soon as the grounds for objection become apparent). Because Andrade failed to object to this testimony at trial, he did not preserve any ruling for appeal on the admissibility of evidence about his drinking. Andrade's claim that the other extraneous evidence was "clearly inadmissible" under Rule 404(b) is also waived because he failed to preserve the complaint for review. See TEX. R. APP. P. 33.1(a)(1)(A) (requiring trial court objection to comport with objection on appeal); Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993). Andrade's objection at trial must comport with the complaint he raises on appeal. See Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App. 2005); Lopez v. State, 200 S.W.3d 246, 251 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Though Andrade objected at trial to Flores's testimony under Rule 403, he failed to voice an objection under Rule 404(b) and, therefore, waived this argument. See TEX. R. APP. P. 33.1(a)(1)(A); Wilson v State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Lopez, 200 S.W.3d at 251. Consequently, we consider only Andrade's assertion that the extraneous offense testimony was unduly prejudicial. Evidence may be excluded under Rule 403 if the danger of unfair prejudice substantially outweighs its probative value. TEX. R. EVID. 403; Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App. 1999). In making this determination, a trial court should consider (1) how probative the evidence of the extraneous offense is; (2) the potential for the extraneous offense to impress the jury "in some irrational but indelible way;" (3) the amount of time the proponent will need to develop the evidence; and (4) the proponent's need for the evidence to prove a fact of consequence. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). Only a significant disparity between the degree of prejudice of the evidence and its probative value will tip the balance toward requiring exclusion. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996). The first of the balancing factors — the probative weight of the extraneous offense — favors admissibility because the evidence speaks to Andrade's motive for killing Huang. The prosecution may offer such testimony to show motive. Porter v. State, 623 S.W.2d 374, 385-86 (Tex.Crim.App. 1981). The testimony of Andrade's jealousy and its having manifested itself violently in the past was necessary to understand Andrade's behavior. It explains Maritza's testimony that her father repeatedly and angrily asked her who Huang was and continued to ask even after she had answered that he was their employer. As to the second and third factors, although testimony of Andrade's jealousy and history of violent behavior carries some emotional weight, the State did not take a great deal of time developing the testimony. Maritza testified that Andrade sometimes got angry when he was drunk and that she had seen him get jealous. Flores's testimony of the disputed evidence was also limited — constituting little more than a page of the twenty-four page record of her direct examination. Further, only one paragraph of the State's closing argument dealt with the disputed testimony. Given the eyewitness accounts of the killing from Flores and Maritza, and the DNA evidence linking him to the crime, the jury is not likely to have been prejudiced in an irrational way by testimony concerning Andrade's history of jealousy and violence. The second and third factors therefore also weigh in favor of admissibility. The fourth factor requires balancing the State's need for such extraneous offense evidence against any prejudice. Understanding that Andrade was a jealous man helped to prove his motive for killing Huang, and the trial court properly limited the testimony to behavior that might explain his motivations. This factor therefore weighs in favor of admissibility. A trial court's rule 403 ruling admitting extraneous offense evidence must be upheld so long as it is "within the zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391. In balancing the four factors, the prejudice from the extraneous offense testimony does not outweigh its probative value. The trial court's ruling is within the zone of reasonable disagreement. We conclude that the trial court did not abuse its discretion in admitting the extraneous offense evidence. Conclusion
We hold that the trial court did not abuse its discretion in allowing extraneous evidence to be introduced. Accordingly, we affirm the judgment of the trial court.