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 claims that the court erred byadmitting extraneous-offense evidencethat appellantpossessed a gun priorto the murder. We affirm. Background Michelle Millare and appellantdated for about one andone-half years. On the day Michelle disappeared, appellant and Michelle eachvisited the home of Michael 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 if he had bullets for it. Michael claimed that he did not. Appellant opened 

### the gun's clip, causing Michael to notice bullets inthe clip. Appellant asked Michael whether the gun would kill ifappellant used it to shoot someone in the head, and 

### Michael responded that it could. Michael leftappellant, wentintohis apartment, 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 appellantfollowing 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 hehadnotseen 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 dirt road near Lake Houston, and an 

### autopsy was conducted. The autopsy revealed that Michelle haddied from a contact gunshot wound to herhead caused by a .25 caliber bullet and thatherbody had been
burned with diesel fuel. 

### During thepolice investigation, officers went to the gas station nearest to the location where Michelle'sbodywasfound and spokewithPatricia Foster. 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 dieselfuel, andpumped the fuel, butFoster did notknow whether appellant putthe fuel into a container or a vehicle. She saw the 4Runner leave in the direction of the site where Michelle's body was found. Officers obtained a warrant, arrested appellant, and received a writtenstatement 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 offat 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 thathe shot 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 ofa gun and would have immediatelycontacted the police.An appellate court reviewing a trial court's ruling on the admissibility of evidenceappliesthe abuse-of-discretion standardof review. 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 ofreasonable 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's ruling, it must beexaminedin the contextofthe evidence introduced at appellant's trial. During direct examination by the State, 

### Michael testified thatappellant showed hima gunand asked himifhehadbullets for it. Michael deniedhaving any. Appellant askedMichael whether the gun couldkill 

### someone, and Michael responded that it could. Michael further testified that when Michelle's father called looking for his daughter, he saidthat he last saw Michellewith appellant. Duringcross-examinationof Michael,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 that Michael would have been alarmed at seeing appellant witha gun, wouldhave notified the police,and wouldhavetold Michelle's fatheraboutthe gun when he called. The State further contends that the evidence that Michael saw 

### appellant inpossession ofagun before Michelle's disappearance explains appellant's lackofreaction to seeing appellant 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 previouspossession, or whether the 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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