Opinion issued October 9, 2003

In The

For The

waxed

NO. 01-02-01182-CR

JONATHAN JUDGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 912141

MEMORANDUM OPINION

Appellant, Jonathan Judge, was indicted for the offense of murder. A jury

found appellant guilty andassessed hispunishment at 60years' confinement. Inone

issue, appellant claimsthat the court erred byadmitting extraneous-offense evidence
that appellant possessed a gun priorto the murder. We affirm.

Background

Michelle Millare and appellantdated for about one and one-halfyears. On the

day Michelle disappeared, appellant and Michelle eachvisited the home ofMichael

and Jamira Foster. Appellant took his car to Michael for repair of the radiator.

Michelle arrived separatelyin her 4Runnerto visit Jamira.WhileMichellewas in the

apartment with Jamira, the two men sat inside appellant's car and talked.

During their discussions, appellant displayed a .25-caliber gun and asked

Michael ifhe had bullets for it. Michael claimed that he did not. Appellant opened

the gun's clip, causing Michael to notice bulletsinthe clip. Appellant asked Michael

whether the gun would kill if appellant used it to shoot someone in the head, and

Michael responded that it could. Michael leftappellant, wentintohisapartment, and

called Michelle to appellant's car at appellant's request.

After he had been in his apartment for 15 to 30 minutes, Michael walked

outside and saw that Michelle and appellant were still together inside appellant's car.

Michelle was sitting on appellant's lap, hugging and kissing him. Later that

afternoon, Jamira saw Michelle leavein her4Runner, with appellant following in his

car.

When Michelle did not come home that night,her family calledhercell phone,
pager, and friends in an attempt to locate her, and reported Michelle's disappearance

to the police. Her family discoveredthatMichelle's ATM card was usedto withdraw

money on the night she disappeared. When Michelle's father spoke to Michael,

Michael said that Michelle and appellant had been at his apartment on the night she

disappeared. Appellant, however, claimed that hehad notseen Michelle for months.

Michelle's brother found her 4Runner parked at McGregor Parkwhen he was

posting flyers one day. Dried blood was found on the passenger seat, console and

floorboard. Her burned body was found on a dirtroad near Lake Houston, and an

autopsy wasconducted. The autopsy revealed that Michelle haddied from a contact

gunshot wound to herhead caused by a .25 caliber bullet and thather body had been

burned with diesel fuel.

During the police investigation, officers went to the gas station nearest to the

locationwhere Michelle'sbodywasfound and spokewithPatriciaFoster. Fostertold

police officers that she saw a green 4Runner pulling up to the diesel pump on the

night Michelle was discovered missing. According to Foster, appellant entered the

store, paid afew dollars for diesel fuel, and pumped the fuel, butFoster did notknow

whether appellant putthe fuel into a container or a vehicle. She saw the 4Runner

leave in the direction ofthe site where Michelle's body was found.

Officers obtained a warrant, arrested appellant, and received a written
statement from him. In the statement, appellant said that he had seen Michelle at the

Fosters' apartment, they separated at 3:00 P.M., and they reunited at 6:00 P.M. In a

written statement,appellantclaimedthatMichelledrovehimto anATMmachineand

withdrew $140, which she gave to him. According to appellant, Michelle dropped

him off at a store near his home, and he spent the remainder ofthe night having his

hair braided and playing basketball. Contrary to appellant's written statement, two

inmates incarceratedwith appellant at the Harris County Jail, testified at appellant's

trial thatappellant told them thatheshot thevictim inthehead, burned thebody with

diesel fuel, and urinated on it.

Extraneous Offense Evidence

In his sole point of error, appellant contends that the trial court erred in

admitting evidence ofanextraneous offense because itwasnotprobative ofany issue

in the caseandwas undulyprejudicial in defending his charge ofmurder by firearm.

A single question and answer posed to Michael Foster during the State's re-direct

examination is the subject ofthis appeal:

Question by State: Prior to February 20th, had you seen the defendant,

Jonathan Judge, with a different gun than the one

you saw him with onFebruary 20th?

Answer: Yes, he had a -

Question: That's okay. Thank You.
In overruling appellant's trial objection,the court conducted a balancing test, found

that the evidence was more relevant than prejudicial, and ruled that the evidence was

admissible to correct a false impression that Michael would have been alarmed at

seeing appellant in possession of a gun and would have immediatelycontacted the

police.

An appellate court reviewing a trial court's ruling on the admissibility of

evidenceappliesthe abuse-of-discretion standardofreview. Weatherredv. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000). The appellate court must uphold the trial

court's ruling if it was within the zone of reasonable disagreement. Id. All relevant

evidence is admissible unless its probative value is substantially outweighedby the

danger of unfair prejudice. TEX. R. EVID. 403. Evidence that is otherwise

inadmissible may be admitted to correct a false impression left by the questioning of

a witness. Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002).

To understandthe trial court'sruling, it must beexaminedin the contextofthe

evidence introduced at appellant's trial. During direct examination by the State,

Michael testified thatappellantshowed hima gunandasked himifhehadbulletsfor

it. Michael deniedhavingany. Appellant askedMichael whether the gun couldkill

someone, andMichael responded that it could. Michael further testified that when

Michelle'sfather called looking for his daughter, he saidthat he lastsaw Michelle
withappellant. Duringcross-examinationofMichael,appellant's attorneyattempted

to establish that Michael was not telling the truth about appellant's request for bullets

because bullets would be unnecessary if the gun's clip already contained bullets.

Appellant's attorneysuggested it would have been nonsensical for appellant to ask,

"Would this gun kill somebody ifI shot them in the head?" because the answer to

such a question is obvious. Appellant's attorney further established that Michael

admitted that he never mentioned the gun or the statements made by appellant about

the gun to Michelle's father when he called looking for Michelle.

The State contends that appellant's cross-examinationleft a false impression

with thejury thatMichael would have been alarmed at seeing appellant witha gun,

wouldhavenotified the police,and wouldhavetold Michelle's fatheraboutthe gun

when he called. The State further contends that the evidence that Michael saw

appellant inpossessionofagun beforeMichelle's disappearance explains appellant's

lackofreaction to seeingappellant in possession of a gun on the night of Michelle's

disappearance.

We conclude that the trial court did not abuse its discretion in admitting the

testimony ofappellant's previous gunpossession. TheState waslimited totestimony

in a single question and answer. No details of the previous possession were

introduced, and no mention was made of the type of firearm in the previous
possession, or whetherthe possession was legal or illegal. Finally, no correlation was

shown between the type offirearm appellant was previously seen possessing and the

firearm he carried on the night ofMichelle's disappearance. We conclude that the

court did not abuse its discretion in ruling that the probative value ofthe evidence to

correct a false impression outweighed any prejudicial effect ofthe evidence.

We overrule appellant's sole issue.

Conclusion

We affirm the judgment ofthe trial court.

Elsa Alcala

Justice

Panel consists ofChiefJustice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.4.

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