1 John T. Boyd, Chief Ju stice (Re t.), Seven th Court of Appeal s, sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 4). NO. 07-03-0522-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JUNE 14, 2005

______________________________ JOE GONZALES, APPELLANT

v. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-400,969; HON. CECIL G. PURYEAR, PRESIDING

_______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. 1 In this appeal, appellant Joe Gonzales chall enges his conviction of capital murder and the ensuing court-assessed punishment of life impris onment in the Institutional Di vision of the Department of Criminal Justice. In doing so, he presents five points for our determination. In those points, he contends: 1) during the State’s case-in-chief, the trial court erred in permitting the State to offer evi denc e of an extraneous offense occurring2

eightdays after the charged capital murder offense; 2) & 3) the evidence was legally and factuallyinsuffic ient to s ustain th e convic tion of capital mu rder; 4) the tri al court erred when itsustained the State’s objection to the admission of Gabriel Gonzales’ confession; and 5) the trial court erred when it refused to give appella nt a continuance because it deprived him of the right to present a witness in his favor. Disagreeing that reversal is required, we affirm thejudgment of the tri al court.
The State’s evidence show ed that on August 14, 2002, appellant and hi s cousin Gabriel Gonzales decided to commit a robbery. In the course of i mplementing that decision, appellant drove his vehicle while Gabriel looked for potential vict ims. After Gabriel pointed out several potential victims that appellant rejected, Gabriel selected Colin Schafer as the intended target of the robbery. Carrying a 9 mm semiautomatic rifle, Gabriel stepped out of the veh icle, confronted Schafer, and demanded money. When Schafer could not prod uce any, Gabriel entered Schafer’s car and ordered him to proceed to an ATM machine to withdraw money. Appellant followed in his car. After Schafer delivered $300 to Gabriel, Gabriel shot Schafer twice, returned to appellant’s car, an d left Scha fer to die. Eightdays after the robbe ry, appel lant and Gabriel were at aresiden ce where appellant

became involve d in a fi ght. After the fight, the pair waited outside the residence. Gabriel took the 9 mm riflefrom appe llant’s car, hand ed it toap pellant, and encouraged him to fire into the residence. Before leaving thearea, appellant fired four rounds into the residence. During the cours e of inve stigatin g the second shoo ting, a p olice of ficer, noting3

the similari ties between the S chafer mur der a nd the shooting, informed the officer investigating the Schafer murder of a possible connection between the two.
The police compared the shell casings from both in cidents and concluded that the
same gun was involved in both of them. B y identifying the suspects in the second shooting, the police obtained a search warrant and conduc ted a sea rch of app ellant’ s home. In conducting the search, the police discovered a 9 mm rifle, as well as the re mnants of a p artiallyburned wallet in the fireplace of appel lant’s residence. Among the ashes in th e fireplace was a pa rtially b urned in surance card fo r Su san Scha fer, Coli n’s mothe r. Appellant

and Gabriel were arrested and both of them gave statements in criminating themselve s in the robbery-mu rder of Co lin Schafer. Reiterated, in his first point, appellant contends the trial court reversibly erred in admitting evidence con cerning th e shooting incident that occurred eight days after the murder in ques tion here . He argu es that th e State i mproperly offe red t he evide nce to demonstra te appellant’s general bad character in violation of the Texas Rules of Evidence.
Pare nthetica lly, the State con tends app ellant d id not pr operly p reserve th is questi o n for appellate review. The gist of that contention arises out of a prelimin ary hearing, the subjectof which, the trial court announced, was “evidentiary matters.” Def e nse counsel objected to the co nsiderat ion of th e balanc ing test necessar y for the t rial cou rt to perfo rm in determining the admissibility of the extraneous offense because the q uesti on was not “ripe.”4

However, the trial court stated that its purpose in calling the hearing was to consider “the question of whether or not [the extraneous offense is] probative or not and whether or notthe extraneous offense carries more prejudice than probative v alue. . . .” At the conclusion of the hearing, and after hea ring test imony, th e court an nounced, “[M]y prelimin aryruling is that this matter is not overly prejudicial, it is probative of thefacts of the capital murder in this case, and that as such, the Court is g oi ng to al low the matter to be proffered before the jury.” When the State tendered the testimony at trial, defense counse l told the court that he was rearguing the objection that was raised at the preliminary hearing. Thatobjection was overruled, and appellant was g iven a running objection to the testimony.

The State arg ues that t he only objection made by d efense co unsel at t he hearin g was t hat the hearing was premature and counsel’s reference to h is objection at the prelimin aryhearing “was ins ufficien tly speci fic to pre serv e e rror concerning Appellant’s complain ts on appeal.” We disagree. The record is sufficien t to show the tr ial court was well aware of

the basis of appellant’s objection and contin ued to believe the evidence was admissible. Thus, the question has been preserved for our appellate review.
Th e nature of appellant’s first point requires us to review the pertinent portions of the applicable Rules of Evidence. R ule 401 defines relevant evidenceas “evidence having anytendencyto make the existence of any fact that is of conseq uence to the determination of the action more probable or less probable than it would be without th e evidence.” Tex. R. Evid. 40 1. Rule 402 provides: “All relevant evidence is admissible, except as otherwise provided by . . . these rules, . . . .” Tex. R. Evid. 402 . Rule 403 provides that although5

relev ant, “evide nce may be excluded if its probative val ue is substantially outweighed by the danger of unfair p rejudice

. . . .” Tex. R. Evid. 403. Rule 404(b) provides that “[e]vidence of other crimes, w rongs, or acts is n ot admiss ible to p rove the c haracter of a person in order

to show action i n conformi ty there with .” Tex. R. Evid. 404(b). It may, however, be admissible for other purposes such as proof of motive, o pportuni ty, i ntent, preparati on, plan , knowle dge, and identity

. Id.
We review a trial court’s decision on the admission or exclu sion of evidence by an abuse of discretion standard

. See Montg omery v. State , 810 S.W. 2d 372, 3 79 (Tex. Crim. App. 1990). The determination of the admissibility of evi dence is a mul ti-st ep process. First, the trial court

is requi red to de cide whe ther the e vidence to be introduced is relevant to the proce edings. Id. at 375. If the evidence is deemed relevant, it is admissi ble unless itis excluded by a constitutional, statutory , or evid entiary provisi on. Id. at 376. Even if the evidence is relevant and otherwise admissible, it may stil l be exc luded if

its prejudicial effect substanti ally out

weighs i ts probati ve value

. Id. at 377.
In this case, the police had noleads or suspects in Schafer’s murder. It was not until after the second shooting that the police were ab le to identify pot ential suspec ts. That being so, the extraneous offense was rele vant to th e develo pment of t he case. However , although it may be relevant, the extraneous offense would not have been admissib le as character

evidence to show appellant’sch aracter traits such as violent behavior or tendency to use deadly weapons, Tex. R. E vid. 404(b), and the burden was on t he State to establish another legitimate reason for admission of the se cond sho oting ev idence. See Russell v. State , 113 S.W. 3d 530, 5 35 (Tex. App.–Fo rt Worth 20 03, pet. r ef’d).6

In this case, the State was required to prove that appellant had intent and acte d to promote, encourage, solicit , direct, aid, or a ttempt to a id in Sc hafer’s m urder. Id. at 536

. Here, the Stateneeded the evid ence toshow the development of the police investigation leading to the suspects, as well as to show that appel lant intended to use or had knowledge thatthe weapon was inte nded to b e used i n a crimesuch as the one t hat led to Schafer’s death. The extraneous evidence was clea rly probative to show appellant’s participation i n the robbery that led to Schafer’s death.
We next consider whether the evidence’s probativevalue o utweighe d its prejudicial effect. In examining the record, we note that although the offense in chief de alt with the emotional issue of the death of a Texas Tech student and included ph otog raphs of the
scene and the autopsy of Schafer’s body, evidence relatin g to the extraneous offense was presented almost ma tter-of-fac tly. Two witnesse s testifi e d to the actual shooting and identified appellant as a suspect in that shooting. Two p olice officers testified as to the investigations of the se parate o ffenses a nd the po ssible l ink between them. A firear m examiner

testified to ballistic examinations on s hell casings t hat connected the two shooting inciden ts to the same rifle. Testimony relating to the second sho oting did not involve any injury and no disturbing photographs or emotional testimony was i ntroduced in that regard. Thus, we conclude that the evidence relating to the second shooting had very little potential to impress the trial jury in an irrational or indelible manner. Out of the some 450 pages of testimony, only 80 pages were related to the extraneous offense.
A majo rity of th e testimony related to the extraneous offense was focused on the developmentof the identification of the suspects, the similarities betwee n the two offenses,7

and the ballistic comparison between weapons u sed in the two offenses. Indeed, the testimony was, in the main, focused on the difficulty the poli ce were having identifying suspectsin the murder until the discovery of the spent cartridges found at the sce ne of the second s hooting. There was very l ittle tes timony re lating to appella nt or hischaracte r. With rega rd to intent and identity, the jury could reasonably consi der the testimony thatappellant fired a rifle at a residenc e with Gabriel’s encouragement to infer that appellant

knew or should have known that Gabriel was willing to use the gun against Schafer. The jury could also have considered the testimony concerning appellant’s use of the 9 mm rifle

as evide nce that a ppellan t had intent to ki ll. See Merca do v. State , 718 S.W.2d 291, 295 (Tex. Crim. App. 1986). Whether appella nt had knowledg e or inte nt to particip ate in Sc hafer’s m urder was directly at issuein this case.
In summary, for the re asons wehave ite rated, theState met its burd en to demonst rate that the evidence was relevant and that its probative value exceeded i t s prejudicial effect. Appellant’s first point is overruled.
Because it also concerns the admissibility of evidence , we next consider appellant’s fourth point. In that point, he contends the trial court reversibly erred in excluding Gabriel’s written statement . In supp orting th at theory , a ppellant contends that the confession was admissible as a statement against interest. In relevant part, Rul e 803(24 ) provide s that a statement that at th e ti me of its making i s so far contrary to the decl arant’s i nterest as to tend to subject the declarant to criminal liability is n o t excluded by the hearsay rule even if the decl arant is availab le as a w itness. T ex. R. E vid. 803 (24). However , it further8

specificallyprovides that in criminal cases, “a statement tending to exp ose the declarant to criminal liabil ity is no t admissi ble unle ss corrob orating c ircumstan ces clea rly indi cate the trustworthiness of the sta tement.” Id. In that connection, although the trial co urtruled that the en ti re confession was not admissible, it did all ow appellant to explore any portion of Gabriel’s statement so long as those portions were corroborated by other evidence.
A trial judge’s evidentiary ruling will be affirmed if the trial court follows the appropri ate analysi s and bal ancing f actors. See Montg

omery v. State , 810 S.W.2d at380. Under this record, the trial court di d not abu se its di scretion in makin g its ruling. Appellant’s fourth issue is overruled.
In his sec ond and third points, appellant contends the eviden ce is legally and factuallyinsuffic ient tosustain his conviction of capital murder. In particular, he argues that
even if the evidence was sufficient to show he agreed to assist Gabriel in a robbery, he had
no intention of killing the vi ct im and the evidence was not sufficient to establi sh that essential element of his conviction.
Evidence is legally sufficient if, viewed in the light most favorable to the jury’s ve rdict,
a rational jury could find the essential elements of the offense beyond areasonab le doubt

. See Jackson v. Virginia , 443 U.S. 307, 319 , 99 S.Ct. 2781, 61 L.Ed.2d 560 (197 9); Clewis
v. State , 922 S.W.2d 126, 132 (Tex. Crim. App. 1996). Evid ence is factually sufficie n t if, when all of

the evid ence is considere d in a ne utral li ght, a rat ional ju rycan make a finding of guilt beyond a reasonab le doubt

. See Zuni ga v. Sta te, 144 S.W.3 d 477, 48 4 (Tex. C rim. App. 200 4).9

In these two challenges, as we have noted, appellant only disputes the sufficiency of the evidence to estab lish whe ther he i ntended to aid or assist in causing Schafer’s death. For the purpose of this discussion, we will as sume, arguendo , that appellant is correct in contending that his statement is the only evidence de mons trating his intent. We will first consider his statement in a light most favorable to the verdict. In that statement, appellant indicates that he was aware that Gabriel had and used a weapon during the commission of robbing Schaf

er. He also i ndicates that he urged Gabriel to hurry up and never attempted to dissuade Gabriel from using violence during the commission of the robbery. Altho ugh appella nt expre sses fear of gettin g caught, his state ment does not re veal anythin g showing that the murder was unexpected. In his statement, appellant also describes that after the shooting, he urged Gabriel to “come on” and he d rove Gabriel away from the murder site. He further describes how he helped Gabriel burn Schafer’s wallet by providing hair spray as a means to help destroy e vidence of the cri me. In sum, viewing appellant’s statement in a light most favo rable to th e verdict, a rational jury could have found the essentia l elemen ts of the capital mu rder of Sc hafer beyond a rea sonabledoubt.
In co nsiderin g the factual sufficiency question, the jury could have consi dered the evidence aga inst Gabriel as reducing appellant’s role in the incident and could have considered it as minimizing appellant’s know ledge of the murder. Even so, in addi tion to this testimony, the jury also heard that appell ant o wned the rifle used in the robbery, provided and drove the getaway car, possibly profited from the proceeds of the rob bery, and assist ed in th e destruction of evidence. Intent is generally a fact qu estion to be determined by the ju ry. Robles v . State , 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). Intent10

may be infer red from th e words a nd condu ct o f an accused

. Hernandez v. State , 819 S .W.2d 806, 8 10 (Tex. Crim. Ap p. 1991), overruled in part on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). After reviewing the evidence in toto , and in a neutral light, we conclude that a ration al jury ha d suffici ent evid ence toconclude that appellant

was guilty beyond a reasonable doub t. Because t h e evidence is legally and factually s ufficien t to suppo rt the jury ’s verdi ct, we ove rrule app ellant’ s second and thir d points. Finally, as we have noted, in his fifth po int , appell ant conte nds the tr ial cour t reversiblyerred in denying his motion for continuance b ecause the denial deprived him of his right to present awitnessin his f avor. In s upport

of that pr oposition, he argues that through no fault of his own, Gabriel was not available to testify at his trial but would have been ava ilable within t

wo days t hereafter

. In considering a trial court’s ruling on a continuance motion , an appell ate court reviews the trial court’s a ction by an abuseof discre tion stan dard. Heiselb etz v. Sta te , 906 S.W.2d 500, 511 (Tex. Cr im. App. 1 995). To establish an abuse of discretion, an appel lant must show that the denial resulted in actual p rejudic e and ha rm to him o r her. Id. Here, in his motion seeking continuance, appellant reci tes the situation leading to the request for the continuance with the conclusory statements that the continuance was necess ary “to
ensure the Defendant’s 6 th amendment [right] for compulsory process, for rightto effective assistance of counsel, his right to confront and cross-examination [of a] witness, his right to a fair trial, and his due process rights under the 4 th , 5 th , 6 th , and 14 th amendments to the U.S. Constitutio n and Art. 1, sec.10 of the Texas Consti tution.” In this ca se, the re cord11

supportsthe conc lusion t hat defen se couns el did n ot attempt to timely locate the missing witness and the motion for continuance was not a ctually filed until well into the course of the trial. Moreover, although he asserts the missing witness’ s t estimony would have “bolstered” his de fens e, he does not assert the testimony would have been crucial or unique. The Cou rt of Crimi nal Appe als has s tated tha t mere desire to have mo re time to prepare does not

establi sh an abu se of dis cretion. Id. at 512. A dditiona lly, a l though a motion for newtrial wa s filed, nowherein the mo tion wasa compla int made of the fai lure to grant themotion fo r continu ance. In Taylor v. State , 612 S.W.2d 566, 569 (Tex. Cr im. App. 1981), the court stated that the only means of preserving error in the overru ling of a motion for continuance due to an absentwitnessis a moti on for new trial. Appell ant’s fif th point is overruled.
In s ummary, all of appellant’s points are overruled, and the judgment of the trial court affirmed.
Per Curiam Do not publish.