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NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.
Court of Appeals of Texas, Beaumont.

Don Ramon HINES, Appellant,

v.

The STATE of Texas, Appellee.

No. 09-99-512 CR.

Submitted Jan. 23, 2001.

Delivered Jan. 24, 2001.

On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 99-09-05321-CR.

Before WALKER , C.J., BURGESS and GAULTNEY, JJ.

OPINION

PER CURIAM.

*1 This is an appeal from a conviction by a jury of Murder. The jury further assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of seventy-five (75) years. As all of the issues appellant presents for our consideration center on the admissibility of several extraneous events perpetrated on the victim, her family, and friends, we will consolidate said issues because the analysis and applicable law on each is identical.

As there is no issue raised concerning the lack of legally or factually sufficient evidence to sustain the verdict, a detailed rendition of the facts is unnecessary. The record reflects that on the evening of February 16, 1999, appellant enlisted the services of a taxi cab in order to determine the whereabouts of his long-time "girlfriend," the victim, N.G. The cabdriver, Jose Sanchez, testified that he and appellant eventually encountered the victim driving her vehicle at an intersection in Conroe. Facing in opposite directions, the vehicles stopped side-by-side. At that point, appellant stated, "Let me take care of this bitch right quick[.]" He then exited the cab and began arguing with the victim. While watching the events through his driver's-side rear view mirror, Sanchez observed appellant produce what appeared to be a handgun. Sanchez then heard two gun-shots, but continued to hear the victim talking. As appellant was walking from the driver's side of the victim's vehicle to the front of her vehicle, Sanchez heard the victim accelerate her vehicle and then heard "something land on the hood." After hearing four gun-shots, Sanchez again looked through his rear view mirror and saw appellant "limping" back to the taxi as the victim left the scene in her vehicle.

A second State's witness, Donald Ray Simpson, corroborated Sanchez's testimony. Having witnessed the events unfold from the vantage point of the living room window of his house, Simpson testified he observed appellant actually jump onto the hood of the victim's vehicle and begin shooting.

Later that evening, police were dispatched to an accident scene involving the victim's vehicle. The vehicle had rolled over and had come to rest top-side down. N.G. was extracted from the vehicle, identified, and treated by emergency medical services personnel. The EMS personnel discovered that she had sustained "a puncture wound to her chest." This "puncture wound" was later discovered to be a gun-shot wound that perforated N.G.'s heart and caused her death.

During the State's case-in-chief, a hearing was held out of the jury's presence to determine the admissibility of testimony concerning incidents of violence perpetrated by appellant upon the victim during the course of their relationship. The State proffered the testimony based upon Tex.Code Crim.Proc.Ann. art. 38.36(a) (Vernon Supp.2001), which provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

*2 Trial counsel for appellant lodged timely objections to said testimony based upon relevancy, as well as upon violations of Tex.R.Evid. 404(b) [FN1] and 403 . [FN2] The parties and the trial court were aware of the case of Smith v. State, 5 S.W.3d 673, 679 (Tex.Crim.App.1999) , in which the Court of Criminal Appeals held that evidence admissible under art. 38.36(a) may nevertheless be excluded under Rule 404(b) or Rule 403 . The Court further held in Smith that should an accused make a timely404(b) or 403 objection, before the trial court can properly admit any evidence offered under art. 38.36(a) , it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue in the case. Id. If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors set out in Rule 403 . Id.

FN1. Rule 404(b) provides: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...."

FN2. Rule 403 provides: "Although 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."

In the instant case, the number of extraneous acts of violence or threats by appellant against the victim was fairly extensive. Admitted at trial was testimony from various witnesses describing assaults on the victim by appellant in full view of others, suspicious incidents of property destruction, and appellant's verbal threats against the victim, including a threat to kill N.G. that Hines made the day before the shooting. The State also tendered a copy of a protective order that was in effect at the time of the murder. At the conclusion of the hearing, the trial court made oral findings and overruled appellant's relevancy, Rule 404(b) , and Rule 403 objections. The trial court did, however, give the jury a verbal limiting instruction regarding the extraneous act testimony and included a written limiting instruction in the jury charge.

Under several of his appellate issues, appellant appears to categorize the complaints regarding extraneous offenses as follows: extraneous acts committed against the victim, extraneous acts committed against other people, and extraneous acts involving appellant's flight from the authorities following acts committed against the victim. However, the record before us does not contain trial objections that distinguish between the extraneous acts admitted for art. 38.36 purposes and the other acts not involving the victim directly. We recognize that sometimes an otherwise general objection will preserve error when the specific grounds for it are apparent from the context in which it occurs. SeeTex.R.App.P. 33.1(a)(1)(A) . The instant case is not one of those times. As we read and appreciate the record, the State's proffer of the testimony was based upon art. 38.36 and the prior relationship between the victim and appellant, and appellant's objections were raised only within that context. Appellant did not specifically request the trial court to exclude the other extraneous act evidence not directly involving the victim. As the trial court was not given the opportunity to first rule on this complaint, appellant has presented us with nothing for review on this sub-issue. See Tex.R.App.P. 33.1(a)(1)(A) .

*3 Based upon the record before us, it cannot seriously be questioned that the extraneous act evidence at issue was admissible under Rule 404(b) for the non-character conformity purposes of motive and intent. The evidence indicates that as the victim drove forward, appellant either jumped or was knocked onto the hood of her vehicle. It is certainly unclear from either the testimony of Sanchez or Simpson as to whether appellant's gun discharged because he intentionally pulled the trigger or whether it discharged involuntarily. The trial court's instructions to the jury included an issue as to whether the shooting of N.G. was a voluntary act. SeeTex.Pen.Code Ann. § 6.01(a) (Vernon 1994). The extraneous act evidence, therefore, was admissible under Rule 404(b) .

Evidence admissible under Rule 404(b) may, nevertheless, be inadmissible under Rule 403 when "its probative value is substantially outweighed by the danger of unfair prejudice." See Tex.R.Evid. 403 . Evidence is unfairly prejudicial when it has "an undue tendency to suggest that a decision be made on an improper basis." Reese v. State, No. 73281, 2000 WL 1781378 at *2 (Tex.Crim.App. Dec. 6, 2000) (not yet released for publication) (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (opinion on rehearing)). The reviewing court should, using an abuse of discretion standard, "do more than decide 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.' " Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997) (quoting Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996) .

A Rule 403 analysis by the trial court should include, but is not limited to, the following factors: (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Montgomery, 810 S.W.2d at 389- 90 . "All relevant facts," as mentioned in Santellan, include, inter alia, whether the ultimate issue was seriously contested by the opponent; whether the State had other convincing evidence to establish the ultimate issue to which the evidence was relevant; whether the probative value of the evidence was not, either alone or in combination with other evidence, particularly compelling; and whether the evidence was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious. Reese, 2000 WL 1781378 at *2 .

In the instant case, the record indicates lack of criminal intent was raised, at least by implication, during the cross-examination by appellant's trial counsel of both Sanchez and Simpson. And, as we have pointed out before, evidence of motive is always proper and relevant to assist in proving a defendant committed the charged offense. ×nJÁREF="http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&ReferencePositionType=S&SerialNum=1996181929&ReferencePositio">Booker v. State, 929 S.W.2d 57, 63 (Tex.App.--Beaumont 1996, pet. ref'd) . Furthermore, the State had no other evidence to prove appellant intentionally shot N.G. other than from the inference raised by the assumption that a handgun does not accidently discharge four times in quick succession. Thus, the probative value of the extraneous act evidence was indeed particularly compelling as to criminal intent, because it placed appellant's actions on the night in question within the continuum of the on-going violence perpetrated by appellant on N.G. over the preceding years of their relationship. Finally, the extraneous act evidence was not such that the trial court's limiting instructions to the jury would have had no effect because the lone issue regarding appellant's culpability was whether or not he "intentionally" shot N.G., or whether appellant was acting recklessly when his gun discharged. None of the other elements of the offense were even inferentially contested. As such, we find that the number and variety of extraneous act evidence admitted by the trial court did not have an undue tendency to suggest that the jury's verdict be made on an improper basis. See Montgomery, 810 S.W.2d at 389 . The trial court's determination of admissibility was reasonable in light of the facts of the case. No abuse of discretion occurred. We overrule all six of the appellate issues presented. We affirm the judgment and the sentence of the trial court.

*4 AFFIRMED.