Opinion
No. 05-08-00647-CR
Opinion issued January 11, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-49116-Y.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Filiberto Perez of murder and assessed punishment, enhanced by a prior felony conviction, at ninety-nine years in prison. In three issues, appellant complains about extraneous offense evidence and improper jury argument. We affirm. Briefly, the evidence showed that appellant had been in a long-term, live-in relationship with Maria Huerta. Huerta ended the relationship after appellant left for four months. During that time, she began a new relationship with Ignacio Gonzalez. When appellant returned to Dallas in November 2007, Huerta told him she had moved on with her life, but appellant continued to "bother" her at work two to three times a week trying to convince her to reestablish their relationship. Huerta once saw appellant following her and, despite her efforts, appellant learned where she lived and showed up at her new residence. Appellant told Huerta he would not "allow" her to be with somebody else and said he would kill "whoever was going to be with" Huerta. In February 2007, Gonzalez picked up Huerta from her job at a grocery store. Appellant was hiding in the parking lot and walked up to Gonzalez's vehicle with a gun, demanded Huerta open the door, and then began shooting into the vehicle. Gonzalez was hit multiple times and died of his wounds. As appellant fled the scene, he exchanged gunfire with the store's security guard. Both the guard and appellant were struck by bullets. Appellant, however, was able to escape and, about fifteen minutes later, was located by the police. The gun used in the shooting was found about six feet away from appellant. In his first issue, appellant contends the trial court erred by allowing the State to present evidence relating to two incidents involving appellant's display of a gun. He asserts the "only possible value" of the evidence was to show appellant's "bad character and propensity for showing off guns and making threats." We review a trial court's ruling on admission of evidence for an abuse of discretion. Saucedo v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). Under an abuse of discretion standard, an appellate court should not disturb the trial court's decision if the ruling was within the "zone of reasonable disagreement." Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006). Evidence of crimes, wrongs, or acts by the defendant is not admissible if it is relevant only to prove the character of the defendant in order to show that he acted in conformity. See Tex. R. Evid. 404(b). Such evidence may be admissible for other purposes, such as to show motive, plan, or intent. See id. In the first incident, Huerta testified that about one month before the shooting, appellant showed her a gun and bullet and told her "that with that bullet he was going to turn someone upside down, belly facing up." Although Huerta initially did not believe the incident was "important," she decided to report it to the police only hours later. With respect to Huerta's testimony, appellant asserts his statement when showing her the gun and bullet did not constitute a general threat to kill anyone he saw her with nor was it made at a time when he had any knowledge she had begun a relationship with Gonzalez. Consequently, he asserts it is not probative of intent at the time of the murder. We disagree. During voir dire, appellant questioned potential jurors on a self-defense theory and, during trial, suggested during the questioning of State's witnesses that Gonzalez had a gun that night. Given appellant's prior threats to Huerta, Huerta's testimony regarding appellant's threat when showing her a gun and bullet allowed for the inference that the threat was directed at anyone she got involved with and that he acted with that intent on the night he saw her with Gonzalez. Moreover, the evidence was relevant to show a motive in this case — jealousy. In the second incident, appellant's nephew testified that, a couple of weeks before the murder, appellant showed him a revolver he had recently purchased. The nephew stated the revolver looked like the one used to kill Gonzalez. Appellant argues this testimony was "even less probative of" appellant's intent or motive to shoot Gonzalez because it shows "[a]ppellant did nothing more than show Rodrique the new gun he had recently acquired." We question whether this evidence even falls under the ambit of rule 404(b); nothing suggests it was a crime for appellant to possess a weapon. Regardless, the testimony connected appellant to the gun found near him at the time he was arrested and therefore had probative value apart from any character conformity issue. We resolve the first issue against appellant. In his second and third issues, appellant complains about two arguments made by the prosecutor. Appellant did not object to either argument but suggests we should review them for fundamental error. The Texas Court of Criminal Appeals has made clear that a defendant's failure to object to improper jury argument forfeits the right to complain about the argument on appeal. See Threadgill v. State, 146 S.W.3d 654, 667, 670 (Tex. Crim. App. 2004). Accordingly, we conclude appellant has waived these complaints. We resolve the second and third issues against appellant. We affirm the trial court's judgment.