AFFIRM; and Opinion Filed June 25, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00705-CR

BRENDA ISELA MONTOYA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F-1122656-W

MEMORANDUM OPINION

Before Justices Brown, Stoddart, and Schenck

Opinion by Justice Schenck

A jury found appellant Brenda Isela Montoya guilty of delivery of a controlled substance, 

heroin, in the amount of one gram or more, but less than four grams. The trial court assessed her 

punishment at eight years’ imprisonment. In a single issue, appellant argues the trial court 

abused its discretion by admitting evidence of an alleged extraneous offense at the 

guilt/innocence phase of her trial. We affirm the trial court’s judgment.

Police surveilled appellant and her brother, Paul Montoya, for some time as a result of a 

tip from a confidential informant who suggested that they were selling heroin. Two narcotics 

investigators from the Farmers Branch Police Department—Matthew McCain and Phillip 

Wardlaw—were in charge of the investigation. Both men testified at trial. They learned that 

appellant drove a black Nissan Versa and that whenever appellant and Paul went somewhere 

together, appellant always drove. Wardlaw arranged by text to buy heroin from Paul. The 
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transaction was to take place on September 7, 2011, in a convenience store parking lot. On the 

appointed day, appellant drove into the parking lot; Paul was in the front passenger seat. 

Wardlaw had arrived earlier, and appellant parked her car immediately next to his undercover 

vehicle. Wardlaw and appellant said “hi” to each other through open windows. Paul then

stepped out of the Versa and gave Wardlaw the heroin in return for cash. This is the offense for 

which appellant was charged as a party. 

The extraneous offense at issue in this appeal was another undercover buy of heroin that 

took place on August 26, approximately a week before the September 7 transaction described 

above. Like the September buy, this one was arranged by McCain and Wardlaw through texts to 

Paul.1

 Appellant drove her black Nissan Versa to the arranged location; Paul rode in the 

passenger seat. When they arrived, Paul exchanged heroin for cash. In this transaction, Paul did 

not leave the vehicle: McCain leaned into the passenger side of the Versa to see both occupants 

and to make the exchange. 

The record establishes that the State sought to offer evidence of the August transaction to 

prove appellant’s knowledge or her lack of mistake concerning why she was driving her brother 

to the arranged meeting in September. The State acknowledged that evidence of another crime is 

not admissible to prove people acted in accordance with their character of lawlessness on a 

particular occasion. See TEX. R. EVID. 404(b)(1). However, it relied on a well recognized 

exception provided by that same rule: that evidence of another crime may be admissible to prove 

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack 

of accident.” See TEX. R. EVID. 404(b)(1). The State argued that after the August transaction 

appellant must have been aware of her brother’s heroin dealing. Thus, when she drove him to a 

 1

 The August buy was arranged by McCain, who had developed the connection with Paul through his confidential informant. After the 

August buy, McCain introduced Paul to Wardlaw, who arranged the September buy. 
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meeting place again in September, it was likely that appellant knew she was driving her brother 

to a meeting arranged for the sale of heroin. Appellant objected to testimony of the August buy, 

contending (1) the evidence would effectively subject her to two trials and (2) the evidence’s 

probative value was substantially outweighed by its unfair prejudice. Following an evidentiary 

hearing, the trial court admitted the evidence for rule 404(b) purposes. On appeal, appellant 

argues only the second objection. See TEX. R. EVID. 403 (court may exclude relevant evidence if 

its probative value is substantially outweighed by unfair prejudice).

We review a trial court’s decision to admit evidence at trial for abuse of discretion. 

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). And we review rulings based 

on rule 403 by balancing the following factors:

(1) how compellingly the extraneous offense evidence serves to make a fact of 

consequence more or less probable—a factor which is related to the strength of 

the evidence presented by the proponent to show the defendant in fact committed 

the extraneous offense;

(2) the potential the other offense evidence has to impress the jury “in some 

irrational but nevertheless indelible way”;

(3) the time the proponent will need to develop the evidence, during which the 

jury will be distracted from consideration of the indicted offense; 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 this fact, and is this fact related to an issue in dispute.

De La Paz v. State, 279 S.W.3d 336, 348–49 (Tex. Crim. App. 2009). The first and fourth 

factors speak primarily to the probative force of the evidence at issue; the second and third 

factors speak to the risk of unfair prejudice. 

Our review of the record persuades us that the evidence of the August heroin transaction 

is compelling proof of appellant’s knowledge of the nature of the September transaction. 

Appellant’s defense at trial was that she did not know what her brother was doing and did not 

knowingly and intentionally deliver a controlled substance on September 7. Her counsel argued, 
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“Unbeknownst to Ms. Montoya, her brother was making deals with the police on drug deals that 

she had no knowledge of,” and “Folks, it’s clear that Ms. Montoya did not know what her 

brother was doing.” But after driving Paul to the August meeting and having the heroin-for-cash 

exchange take place in the car right next to her, jurors could reasonably believe she did know. 

Neither was there another better way to prove appellant’s knowledge. Appellant points to her 

video interview with police, in which she admitted driving Paul to make drug deals. But 

appellant’s answers in that interview are sometimes ambivalent and sometimes ambiguous. 

Police testimony that officers witnessed appellant driving her brother to a drug buy in precisely 

the same way she did one week later was much stronger evidence of her knowledge of the nature 

of her conduct and her brother’s conduct. 

We conclude further that any risk of unfair prejudice was not significant in this case. The 

extraneous offense was not likely to inflame jurors or to encourage them to decide the case on an 

irrational basis. The August buy was not a violent offense or an offense categorically different 

or more heinous than the September offense with which appellant was charged. On the contrary, 

the August transaction was valuable to the jury because it so clearly showed the defendant and 

her brother carried out their transactions following the same pattern—reflecting precisely the 

rationale underlying the exception framed into rule 404. When appellant got into the car to take 

her brother to a store parking lot in September, reasonable jurors could infer that she knew 

precisely what he was going to do. And evidence of that knowledge was highly probative in a 

case in which the thrust of the defense was that she did not know what he was going to do. 

Moreover, the same investigators participated in and testified to the two drug buys. Therefore, 

developing the evidence did not require additional witnesses or significant amounts of time that 

would distract the jury from evidence of the September transaction.
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Weighing these factors, we cannot conclude the evidence of the August transaction was 

substantially more unfairly prejudicial to appellant than it was probative. See De La Paz. 279 

S.W.3d at 348–49. We discern no abuse of discretion in the trial court’s decision to admit the 

evidence. We decide appellant’s single issue against her, and we affirm the judgment of the trial 

court. 

Do Not Publish

TEX. R. APP. P. 47

140705F.U05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

BRENDA ISELA MONTOYA, Appellant

No. 05-14-00705-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F-1122656-W.

Opinion delivered by Justice Schenck. 

Justices Brown and Stoddart participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 25th day of June, 2015.