### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00160- CR

Essa M’Bow e, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT D-1- DC-08 -30 0062 , H ONO RAB LE F RED A. MO ORE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Essa M’B owe of murder, see Tex. Penal Code Ann. § 19.02 (West 2003), and sentenc ed him to forty -five y ear s in prison. M’B owe ar gu es that the district court abuse d its discretion by admitting evidenc e of a n extraneous offe nse and by ref using to allow additional questioning of two potential jurors. We aff irm the judg ment of convic tion. I n the ear ly morning hours of Dec ember 23, 2 0 0 7, police responde d to a repor t that g unshots had been fired near a group of fourplexes at the 8200 block of Sam Ray burn Drive in Austin. When office rs arrived on the s cene , they observe d a grou p o f Hispanic males drinking and listening to music in the parking lot. About twenty to thirty fee t from the g roup, office rs found a Hispanic male, Efr aim J aimes, ly ing on his ba ck next to a vehicle. H e wa s alive, but was ha ving difficulty breathing and communicating

. Although J aimes was unable to speak, h e wa s ab le toshow office rs a small puncture wound in his abdomen. J aimes died shortly afte r being transporte d

to the hospital. Police secur ed the sce n e and conducte d an investigation. The g roup of Hispanic males seeme d to be unawa re that a shooting had occur red. Offic ers questioned other potential witnesses, but wer e unable to procur e any reliable information. Eventually , they spoke to Romualdo Diaz-Sosa, who had been in the parking lot with his brother and a friend at the time of the shooting. The men had noticed a white car arr ive in the are a shortly befor e the shooting. After hear ing a sound like a firec rac ker, they observe d eig ht to ten Afric an-A merica n males running from the scene . Some of the men left in the white car while others scatter ed in differ en t d irec tions. Diaz-Sosa and his friends hear d a moaning sound and, upon investiga tion, found J aimes ly ing on the g round. They then called the police.

Severa l day s l at er , on J anuar y 4, 2008, police wer e contac ted by Alton L aPoint, wh o , at t h e t i me, was in custody in the Travis County jail, having been char g ed with unlawful possession of a firea

rm by a felon. L aPoint admi tted to being at 8200 Sam Ray burn Drive at the time of the shooting and identif i ed M ’B o we as the person who had shot and killed J aimes. Acc ording to L aPoint, he, M’B owe, and sever al other men h ad b een at a rec ording studio in the hours befor e the shooting. At the studio, M’B owe had been showing off a black revolve r with

a brown handle. When the men had finished at the studio, M ’Bowe drove sever al of the men, including M’B owe’ s b ro t h er , L arr y Eg ins, Terr ance Ander son, and L aPoint, to the 8200 block of Sam Ray burn Drive, to sell drug s. The men exit ed the vehicle and went their separ ate way s. Both Eg ins and Ander son testified that, afte r the men exit ed the vehicle, they saw M’B owe try ing to

2sell drug s to a Hispanic man. After a g unshot was hear d, the men returne d to the car . Eg ins testified

that, when he returne d to the car, he saw M’Bowe holding a black r evolver with a brown handle. Acc ording to L aPoint, once ever y one was back in the car , M’B owe told L aP o i n t t hat he had shot someone and that “he g onna fee l it in the morning .” Eg ins corr oborate d this testimony and also testified that M’B owe f

urther sta ted: “I

shot that bitch in the stomach.” Ba sed on the information they had lear ned, police b egan sear ching for M’B owe. They eventua lly located him a nd followed him to an apar tment c omplex at 14100 Therma l D rive. Throug h further investigation, police deter mined that M’B owe was inside the apar tment of L aura Ann Roy , the g irlfriend of either J ustin Newma n or J ames Wil son, who both associate d with M’B owe. When M’B owe left the apar tment, acc ompanied by Newma n and Wil son, he was arr ested. Police obtained a war

rant to sear ch Roy ’s apar

tment and rec overe d a black g un with

a brown handle and ammunition. Testing reve aled that the g un was the wea pon that killed J aimes. The bullets found in Roy ’s apar tment wer e simil ar t o t he bullet taken from J aimes’s body

. DNA testing showed that M’B owe could not be excluded as a contributor to the DNA samples taken from the handle of the g un or as a contributor to the DNA samples taken from the trig g er g uard, hammer, and cylinder rele ase of the g un. Although Newma n could be excluded as a contributor to the DNA found on the handle of the g un, he could not be e x cluded a s a contributor to the DNA found on the trig g er guard, ha

mmer, and c y linder re lease of the g un. On Fe bruar

y 27, 2008, M’B owe wa s indicted for murde r. On Fe bruar y 12, 2009, a jury found M’B owe g uilty as char g ed. The jury assessed punishment at forty -five y ear s in prison. I n four issues, M’B owe argues that the district court err ed in allowing the State to introduce evidenc e

3of a prior offe nse of ag g ravated robber y . Acc ording to M’B owe, the evidenc e is not rele vant for any purpose other than to show char acte r confor mity and, there fore , is not admissible under rule 404(b), and, even if rele vant, the evidenc e was unfairly prejudicia l unde r rule 403. See Tex. R. Evid. 403, 404(b). In a fifth issue, M’B owe ar gu es t h at the district court abused its discretion in ref using to allow furthe r questioning of ce rtain potential jurors.

We revie w a trial co u rt ’s d ecision to admit or exclude evidenc e for an abuse of discretion. Shuffield v. State , 189 S.W .3d 782, 793 (Tex. Crim. App. 2006). Unless the trial court’s decision was outside the zone of rea sonable disag ree ment, we uphold the ruling

. Id. ; Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990) (op. on re h’g ).

An acc used may not be tried fo r b ei ng a criminal g ener ally

. Couret v. State , 7 9 2 S .W.2d 106, 107 (Tex. Crim. App. 1990). Evidence of other crimes, wrong s, or acts i s n o t admissible if it does nothing more than establish the bad char acte r of an acc used person in order to show action in confor

mity there with. Tex. R. Evid. 404(b). Howeve r, this ty pe of evidenc e may be admissible if it ha s rele vance to a materia l issue in the case apar t f rom its tende ncy to pr ove the char acte r of the defe ndant. Page v. State , 125 S

. W

. 3 d 640, 649 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Permissible pur poses for which evidenc e of “other crimes, wrong s or acts” may be admitted include the following : “proof of motive, opportuni t y , intent, prepa ration, plan, knowl ed ge, i d enti ty , or absenc e of mistake or acc ident.” Tex. R. Evid. 404(b). Additionally , extraneous evidenc e may be re levant and a dmissibl e to rebut a defe nsive theory

. Roberts v. State , 29 S.W .3d 596, 601 (Tex. App.—Houston [1s t Dist.] 2000, pet. re f’d)

.

4H e r e , M ’ B o we’ s defe nsive theories raised the issue of identity

. Altho u g h a ll e v id e n c e supported the fac t tha

t M’ Bow e was prese nt a

t the scene of the crime, sever al other men wer e also prese nt, including L aPoint, Eg ins, and Ander son, three of M’B owe’ s associate s that night, who also testified at trial. I n his cross-e x amination of these witnesses, defe nse counsel raised the possibili ty that one of the other men could have been the shooter. Def ense counsel expressly asked L aPoint if he, L aPoint, had been t h e s hooter and was now try ing to frame M’B owe. He also questioned the

cre dibilit y

of the other

witnesses, spec ifically

asking Eg ins if he would lie to protec t L aPoint. Evidence of an ex t ra n eo u s act is admissible to prove identity , when identity is

an issue, only if there is some distinguishing char acte ristic common to both the extraneous offe nse and the offe nse for which the acc used is on trial. Ransom v. State , 503 S.W .2d 810, 812 (Tex. Crim. App. 1974). The common distinguishing c hara cter istic may be the proxi mity in time a nd place or the common mode of the commission of the offe nses. Id. (citing Ford v. State , 484 S.W .2d 727, 729 (T ex . Crim. App. 1972)); see also Lane v. State , 933 S.W .2d 504, 519 (Tex. Crim. App. 1996). Her e, in an attempt to prove that the shooter was M’B owe and not L aPoint or one of the other men at the scene , the State introduced evidenc e t h at, on Dec ember 13, 2007, ten day s befor e J aimes’s murder, M’B owe po s s es s ed a distinctive g un whose descr iption matched that of the g un used to kill J aimes. Although this evidenc e rela ted to an ag g ravated robber y , the district court attempted to limit the evidence present ed to the j ury to evidenc e of possession—evidence that, ten day s befor e J aimes’s murder, M’B owe had been in possession of a black revolve r with a brown handle. I t was this act —the act of possessing a wea pon matching the descr iption of the murder wea pon, not the offe nse of ag g ravated robber y —that the State was require d to prove bey ond a rea sonable doubt. See

5Harrell v. State , 884 S.W .2d 154, 159 (Tex. Crim. App. 1994) (holding that standard of admissibili ty

for e x trane ous offe nse evide nce is proof beyond rea sonable doubt). The State’s evidenc e included the testimony of Emmanuel Niembro. Niembro testified that o n De ce m b er 13, 2007, he had encounte red a black male holding a black revolve r with a brown handle. Niembro testified that, soon afte r the Dec ember 13 incident, he had identified M’B owe from a live lineup as the man who had been holding the revolve r. L ikewise, at trial, Niembro made an in-court identification of M’B owe as the man he had encountere d. I n addition, Niembro identified the revolve r rec overe d from Roy ’s apar tment—the revolve r deter mined to be the murder w eapon—a s simil ar to the one he had observe d M’B owe holding on Dec ember 13, 2007. Niembro a lso testified that M’Bow e had touc hed his ca r. Following Niembro’s testimony , the State prese nted the t es t i m o ny of Offic er Rolando Fue rtes, who was at the scene on the night Niembro encounte red M’B owe. Fue rtes testified th at h e had lifted fing erpr ints from Niembro’s vehicle. Bonnie Manno, a latent print examiner, testified that those prints matche d M’B owe’ s.

The rec ord demonstrates that the State’s extraneous act evidenc e—evide n ce t hat M’B owe possessed a wea pon m at ch i n g the descr iption of the murder wea pon ten day s befor e the m urder

—was presented for a purpose other than t o s h ow charac ter conformity , as required by rule 404(b). The identity of the shooter was a centr al issue in th e ca s e, and evidenc e that, only ten day s befor e J aimes’s m urder , M’B owe was in possession of a distinctive wea pon matching the desc ri p t i o n o f t h e murder wea pon tends to make it more likely that M’B owe, rathe r than one of the other men prese nt at the scene , was also in possession of the wea pon when J aimes was shot.

6The evidenc e was not admitted to show that M’B owe committed an ag g ravated robbery

. I ndeed,

there was no direc t evidenc e that an ag g ravated robber y had occur

red. The common act was the possession of a distinctive wea pon—a black revolve r with a brown handle. The district court’s decision to admit this evidenc e under rul e 404(b)—a s having rele vance bey ond its tendenc y to show char acte r confor

mity —was within the zone of re as onable disag ree ment. See Montgomery , 810 S.W .2d at 391. Acc ording ly , we ove rrule M’ Bow e’s f irst and third issues. Having deter

mined that the evidenc e was of a simil ar act that tends to show identity and wa s, theref

ore, admissible unde r rule 404(b), we ne x t consider whe ther the pr obative value of the evidenc e was substantially outweig hed by the dang er of unfair prejudice

. See Tex. R. Evid. 403. Rule 403 objections are to be analy z ed by balanc ing: (1) the inhere nt probative forc e of the proff ere d item of evidenc e along with (2) the proponent’s need for that evidenc e ag ainst (3) any tendenc y of the evidenc e to sug g est decision on an improper basis, (4) any tendenc y of the evidenc e to confuse or distract the jury from the main issues, (5) any t en d ency of the evidenc e to be g iven undue we ight by

a jury that has not been e quipped to evalua te the probative forc e of the evidenc e, and (6) the likelihood that prese ntation of the evidenc e will consume an inordinate amount of time

or mere ly repe at evidenc e alre ady ad m i tted. Gigliobianco v. State , 210 S.W .3d 637, 641-42 (Tex. Crim. App. 2006).

An analy sis of eac h of these six fac tors supports the district court’s decision to admit the evidenc e in question. Evidence that M’B owe pos s es s ed a distinctive wea pon matching the descr iption of the murder wea pon “strong ly serve s to make more [] probable ” the fac t that M’B owe

was in possession of a wea pon matching that descr iption when J aimes was shot. See id. at 641. The

7defe n s e ca l l ed into question the reliability of the other witnesses, sug g esting that L aPoint had

been the shooter and that the others wer e ly ing to protec t L aPoint. Consequently , evidenc e that, only ten day s befor e, M’B owe had been in possession of a wea pon whose descr iption matched that of the weapon us ed to kill J aimes became releva nt to establish the s hooter’s identity and counter the defe nse that L aPoint was the shooter. I n addition, the evidenc e was limit ed to the specific act of M’B owe’ s having possessed the g un.

As for the Niembro incident, the State’s extraneous act evidenc e had littl e tendenc y to sug g est a decision by the jury on an improper basis or to confuse or distract the jury from the main issues. Whether M’B owe was or had been in possession of t h e we apon—the fac t that the State soug ht to prove by

introducing evidenc e of the encounte r wit h Niembro—wa s direc tly rele vant to the question of who was more likely to be the shooter. I dentity was a centr al, disputed issue, and the evidenc e of the Niembro encounte r prese nted by the S t at e wa s limit ed to evidenc e that, ten day s befor e the murder, M’B owe was in possession of a distinctive w eapon whose descr iption matched that of the murde r we apon.

Howeve r, as M’B owe points out, althoug h limit ed, the ev i d en ce rela ting to the Niembro encounte r did inc lude some evidenc e to sug g est that a criminal act had been committed. This evidenc e includes Niembro’s statement that he had identified M’B owe from a live lineup and the testimony of both Ma nno and Offic er F uerte s that M’Bow e’s f inge rprints had been lifted from Niembro’s vehicle. Whil e we ag ree with M’B owe that the evidence could have sugg ested t o the 1

The State contends that M’B owe’ s rule 403 objection was not prese rved as to Manno and 1 Fue rtes, but the rec ord shows that, in express ref ere nce to the fing erpr int evidenc e, defe nse counsel argued: 8jury that some sort of criminal act might have been committed, the re was no direc t e vidence that a

criminal ac t h ad been committed, that M’B owe had been char g ed, or that the act was ag g ravated robber y . There was also no indication that M’B owe had been convicted—or even indicted—for any crime a nd, indeed, in the a

bsence of such e vidence , the j ury might well have inferr ed that, despite police involvement, there was no indictment or conviction at all. The evidenc e indicated only that both the police and M’ Bow e had be en involved in the incident in some manne r.

As explained, the evidenc e was p re s en t ed to show that M’B owe had been in possession of a wea

pon simil ar to the murder wea pon only t en d ay s b ef

o re the murder. The district court’s decision that th e p ro b at i v e v alue of t his evidenc e, which tends to prove one of t he centr al issues in the case , outweig hs the dang er of unfair prejudice is within the zone of rea sonable disag ree ment. Whil e it is questionable whether , in light of Nie mbro’s testimony , the testimony of Manno and Of

fi ce r Fue rtes was also nece ssary , g iven the defe renc e aff orded to the trial court in

m ak ing evidentiar

y ruling s, we cannot say that the court’s decision to admit the evidenc e was outside the zone of rea sonable disag ree ment. See Montgomery , 810 S.W .2d at 391; Jones v. State , 119 S.W .3d 412, 419 (Tex. App.—For t Worth 2003, no pet.) (“[A] revie wing court is to reve rse the trial court’s judgme nt rar ely and only afte r a clea r abuse of discretion, rec og nizi ng that the trial court

Any rea sonable juror would conclude that a prior bad act had o cc u rr ed, and that’s char acte r confor

mity e v id ence which is clea rly inadmissible. Unless that wea pon can be identified beyond a rea sonable doubt, then the proposed evidenc e is substantially outweig hed by

the dang er of

unfair pr ejudice pur suant to Rule 403. M’B owe’ s o b

jection to the fing erpr int evidenc e, which made express ref ere nce to rule 403, was sufficie nt to preser

ve er ror. See Tex. R. App. P . 33.1.

9is in a superior position to g aug e the impact of the rele vant evidenc e.”)

. Acc ording ly , we overr ule M’B owe’ s second a

nd fourth issues. I n his fifth issue, M’B owe argu es t h at the district court abused its discretion by g ranting two of t h e S t at e’s challeng es for cause while ref using M’B owe the opportunity to rehabilitate the jurors or to make a bill of exceptions. The State contends that there wa s n o er ro r beca use defe nse counsel was allowed to ask his questions and was preve nted from asking fu rt her questions only

afte r the State ha d made its cha lleng es for cause . The trial court has broad discretion over the proce ss of selec ting a jury

. Sells v. State , 121 S.W .3d 748, 755-56 (Tex. Crim. App. 2003), cert. denied , 540 U.S. 986 (2003). Voir dire could g o on indefinitely if the trial court did not have the ability to impose rea sonable limit s on it. Barajas

v. State , 93 S.W .3d 36 , 3 8 (T ex . Crim. App. 2002). A trial court abuses its discretion only when it pr ohibits a proper question about a proper are a of inquiry

. Id. A question is pr oper if it se eks to discover a

juror’s view s on an issue applica ble to the ca se. Id. M’B owe’ s specific challeng e perta ins to potential jurors Trull and Dang erf ield

an d t h eir response s to questions reg arding the State’s burden of proof. The discussion reg ard i n g the State’s burden of proof was beg un by the State and direc ted to the full venire pan el

. State’s counsel descr ibed the differ ence betwee n “bey ond all rea sonable doubt” and “bey ond all doubt” and questioned the potential jurors as to their understanding of these standards—w hether they would hold the State to a burden of proving bey ond a rea sonable doubt or if they would require the State to prove its case bey ond all doubt. This exchang e ensued betwee n the State and potential juror Dones, an exchang e eve ntually

joined by Dang erf ield and Trull:

10Dones: I g uess I would have to say ag ainst ever y body else, all doubt. Imean, a murder c ase is ver

y serious to me. State’s counse l: Yes, ma’ am, it is. Dones: I don’t want to just say they did it. I ’m not comforta ble with that.

. . . . Dones: For me, I would say

all doubt. State’s counse l: Okay

. That’s what I neede d to kno w. T hank y ou. Yes, sir,

Mr. Dang erf

ield? Dang erf ield: Now that I

have le arne d more, y eah, I would ag ree with her, too. Yeah. State’s counse l: So, ag ain, my hy pot h et i ca l o f t h re e wi t n es ses coming to testify —I mean, we still have to prove to y ou the case , okay ? But I am saying three witnesses come in, y ou believe them bey ond a rea sonable doubt; howeve r there is not DNA. There is, y ou know, things that y ou are like, g osh, I rea lly wish they had that, but I believe every thing that those witnesses said. Would y ou be able to hold t h e State to bey ond a rea sonable doubt and not to bey ond all doubt? Dang erf ield: Stil l all doubt.

. . . . Trull: I ’m a littl e iffy

. Since it’s murder, I ’m g oing to g o with all

doubt.

At this point, the court interru p t ed and explained the standards of proof at leng th, attempting to clar ify the differ ence s betwee n the t wo s t an dards and explaining the virtual impossibi lity of proving something bey ond all doubt. The court explained that the only way to know bey ond all do u b t t h at s omething happene d is to observe it oneself, and if a person observe s the

11conduct at issue, he is no longe r a juror, but a witness. Stil l, when qu es t i o n ed ag ain, Trull and

Dang erf ield asser ted that they

would require the State to prove its ca se bey ond all doubt. Def ense counsel also had the opportunity to discuss the issue with the venire panel. Def ense counsel explained the burdens by descr ibing the universe of “all doubt” divided into either

rea sonable doubt or unr easona ble doubt and continued:

Those of y ou who said bey ond all doubt, k n owing that the other kind of doubt is un re as o n able doubt, would y ou require the S tate to prove their case to y ou bey ond unrea sonable doubt?

The court ag ain interrupted and attempted to clar ify further , and defe nse counsel further explained the standard, also discussing potential differ ence s betwee n the words “all rea sonable doubt” and “a

rea sonable doubt.” After an ext ensive discussion, but without further individual questioning of Trull or Da ng erf ield, defe nse counse l moved on to other matters. At the conclusion of voir dire, the State challeng ed potential jurors Trull and Dang erf ield, among others, for

cause . The c ourt commented tha t:

Those are the people who even afte r I interrupte d n umerous times said that they would require the State of Texas to prove g uilt bey ond all doubt in a criminal ca se.

The court then sustained the State’s challeng es. Def ense counsel o b

j ec t ed , s tating that Trull and Dang erf ield wer e just confuse d. The court ref used to allow further questioning, stating that the law had been explained multipl e times by both sides and by the court itself. Def ense counsel then asked

12to make a bill of exception by speaking to eac h potential juror individually

. The court re fused,

stating tha t defe nse counse l had the opportunity to speak to them individually during voir dire. Acc ordin g to M ’ B o w e , th e e v id e n ce shows that potential jurors Trull and Dang erf ield

wer e “at best unsure” or “vac illating juror[s] ,” and defe nse cou n s el should have been permitted to que stion them further befor e they wer e excluded from the jury panel. As a matter of proce dure, we find no abuse of discretion in the district cour t’s ref usal to allow furthe r questioning . Def ense counsel ha d ample opportunity to reha bilitate these potential jurors dur ing voir dire. The rec ord shows that the d i s trict court allowed virtually unlimit ed questioning of these potential jurors during voir dire. Fur ther, the corr ect leg al standard was repe atedly explained to Tru ll and Dang erf

ield and, even afte r extensive discussion, both still said that they would hold the S tate to proof bey ond all doubt, rathe r t han proof bey ond a reasonable doubt. After extensive questioning, the district court exercise d its discretion to determine that these potential jurors were biased or p re

j u diced rathe r than mere ly confuse d. On this rec ord, we cannot say that the court’s decision to prohibit further individual questioning afte r the State challeng ed Trull and Dang erf ield for cause —either for purposes of reha bilitation or for purposes of a bill of exception—was an abuse of discretion. See Sells , 121 S.W .3d at 755-56; Barajas , 93 S.W .3d at 38. Acc ording ly , we overr ule M’B owe’ s fifth issue.

13Having overr uled ea ch of M’ Bow e’s issues, we aff irm the judg ment of convic tion.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: May

27, 2010 Do Not Publish

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