Opinion filed September 26, 2013



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00 255

- CR

__________ RASHAD ROY BELL , Appellant s

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR 38,002

M E M O R A N D U M O P I N I O N The jury found Rashad Roy Bell 1 guilty of felony murder and two counts of aggravated assault with a dea dly weapon . The charges were the result of an

1 We note that most of the documents in the record, including the judgments, reflect Appellant's name to be Rashad Ro y Bell but that the indictment reflects his name as Roy Rashad Bell.2 automobile collision

. After it found the enhancement paragraphs true, t he jury assessed punishment at confinement for sixty

- five years and a fi ne of $10,000 for
the felony murder conviction
, confinement for thirty years and a fine of $5,000 for
the first aggravated assault, and confinement for five years fo r the second aggravated assault. The trial court found that Bell participated in a crimina l street

gang, sentenced him according to the jury’s assessment of punishment, and ordered
that his sentences run concurrently. W e affirm. Bell presents two issues for review. In his first issue, Bell argues that the
trial court abused its discretion when it admitted evidence of extraneous offenses under the same transaction contextual evidence exception to Rule 404(b) of the
Texas Rules of Evidence. Bell alleges in his second issue that the trial court abused its discretion when it disqualified Bell’s mother as a witness in the punishment phase of the trial for violating “ T he R ule

. ” Although there is no challenge to the sufficiency of th e evidence , we provide the following for context

. The evidence at trial showed that Bell entered Midtown
Hotel just before 3:00 a.m. on October 14, 2010, and asked about room rates. He
also asked for change for a dollar

. W hen the receptionist opened the cash register
, Bell leaned over the counter and took $170 from the register. Bell drove away
from the hotel in a stolen vehicle. Within m inutes of leaving the hotel, he ran a stop sign and struck a street sweep er

. B e ll was driving in excess of seventy

- seven miles per hour in a thirty mile

- per

- hour zone. The passenger of the street sweeper,
Ronnie Lee Randolph, was thrown from the sweeper and was pronounced dead at
the scene. The driver of the street sweeper, Donald Clark, and the passenger in Bell’s vehicle, Subrina Crystal Kalinoski, were seriously injured.
Prior to burglarizing the hotel , Bell and Kalinoski drove around Odessa and Midland looking for drugs and ways to buy drugs. The State presented evidence that, during the hours leading up to the collision, Bell committed numerous ba d3 acts: (1) he possessed and used crack cocaine numerous times throughout the day; (2) he was in possession of a baggie that contained white powder and a baggie that
contained several “ crack rocks ” when treated at the hospital after the collision; (3) he attempted to sell fake cocaine in order to make money to buy real cocaine; (4) he stole money and other items from an acquaintance’s vehicle; (5) he stole
items from Wal

- Mart and had Kalinoski’s fat her return them for a credit card in order to exchange the credit card for crack; (6) he stole beer from 7

- Eleven and exchanged it for crack; and (7) he stole Kalinoski’s boyfriend’s credit card and attempted to purchase items at Walgreen’s and 7

- Eleven wi th the card
, as well as withdraw money from the account linked to the card. In addition, Bell tested posi tive for cocaine when he was treated at the hospital following the collision

. Bell ’s defense counsel objected to the admission of the numerous bad ac ts committed by Bell prior to the burglary of the h otel . Counsel made the objections under Texas Rules of Evidence 401, 403, and 404(b). The State argued that the
extraneous offe nses were admissible under the same tr ansaction contextual
evidence exceptio n to Rule 404(b). The State also argued that the extraneous offenses were admissible under Rule 404(b) to show Bell’s motive for the burglary , as well as to show a plan or common scheme and design for the day

. The trial court overruled Bell’s objections and adm itted the extraneous offenses. On appeal, Bell contends that the State offered the extraneous offenses to show character conformity and that the trial court erred when it admitted the offenses under the same transaction contextual evidence exceptio n to Rule 404(b). Specifically, Bell argues that the extraneous offenses were not so intermixed with the charged offenses that the jury could not understand the charged offenses
without the admission of the extraneous offenses. Although Bell states in hi s brief
that the evidence was admitted in violation of Rule s 401, 403, and 404, h e does not4 provide any explanation as to why the evidence should have been excluded under
Rule 403.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of reasonable disagreement.” Id. Rule 404(b) provides that “[e]videnc e of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity
therewith .” T EX

. R. E VID . 404(b). The rule further provides that evidence may be
admissible for other purposes , “such as proof of motive, opportunity, intent
, preparation, plan, knowledge, identity, or absence of mistake or accident

. ” Id. Extraneous offense evidence may be admissible for purposes other than those expressly listed. Devoe v. State , 354 S.W.3d 457 (Tex. Crim. App. 20 11); Rogers v. State , 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); Montgomery , 810
S.W.2d at 388.
T he evidence was admissible in this case to show Bell’s intent and motive to
bur g larize the hotel

— to steal money in order to buy more crack

. Moses v. State , 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). In addition, Bell’s defense was that he was not the driver of the vehicle when it collided with the street sweeper. The evidence leading up to the collision showed that Bell was with Kalinoski in the
stolen veh icle all day and that the person Bell claimed was driving was not in the vehicle. Thus, the evidence was also admissible to rebut Bell’s defense. Id.
The trial court’s decision to admit the extraneous offense evidence was not
outside the zone of reasona ble disagreement. Therefore, the trial court did not
abuse its discretion when it admitted the evidence. We overrule Bell’s first issue. Bell asserts in his second issue that the trial court erred when it disqualified Bell’s mother from testifying afte r it found that she had violated Ru le 614. T EX

. R.5 E VID . 614. Rule 614 , “the Rule
, ” provides for the exclusion of witnesses so that they cannot hear the testimony of other witnesses. Disqualification of a defense
witness for a violation of the Rule must be viewed in light of the defendant’s constitutional right to call witnesses on his behalf. Webb v. State , 766 S.W.2d 236
, 240

– 41 (Tex. Crim. App. 1989)

. The trial court abuses its discretion in disqualifying a witness when the re is not a sho wing that the violation of the R ule is due to the procurement or knowledge of the defendant and when the testimony is
crucial to the defense

. Id. Before the trial began, the State specifically asked the court to admonish the
witnesses an d make sure that Bell did not relay messages to witness es that could potentially testify. The State made this request because the prosecutor received information that Bell’s sister planned on passing information regarding the trial to Bell’s mother. The State invoked the Rule
, and the trial court admonished the
witnesses. When defense counsel called Bell’s mother to testify, the State objected on the ground that she had violated Rule 614 because she had been in constant
communication with Bell and Bell h ad relayed information to her regarding the events of the trial, including the details of a witness’s testimony. Bell’s mother acknowledged that she had been admonished under the R ule and that it had been explained to her that she could not discuss matter s that occurred in the court proceedings with anyone. She admitted that her son told her about the proceedings
, including certain testimony
, and that she watched the news and read information online concerning the trial.
The trial court noted that it had instructed the witnesses to not allow anyone to talk to them about the trial. The witnesses were further instructed to stop the conversation immediately and report the incident to the court.6 The trial court found that Bell’s mother violate d Rule 614 and did not allow her to testify. Bell concedes that his mother violated the Rule , but argues that
, because her knowledge of what happened during the guilt/innocence phase did not affect her testimony for the punishment phase, she should not ha ve been disqualified. We disagree. While the knowledge she gained when she violated the
R ule may not have affected the testimony she planned to give, the trial court did
not abuse its discretion under the test in Webb

. Here, the violation of the R ule

oc curred because of the defendant. Bell, himself, told his mother about the events of the trial. In addition, Bell’s mother’s testimony w as not crucial to the defense. Outside the jury ’ s presence, Bell’s mother testified regarding Bell’s upbringing, his
b attle with drugs, the steps he was taking to end that battle, and the fact that he had support from his family. After Bell’s mother was disqualified, defense counsel called Bell’s stepfather to testify. His testimony provided the same information to the jury

. The trial court did not abuse its discretion when it disqualified Bell’s
mother as a witness. We overrule Bell’s second issue.
We affirm the judgment s of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

September 26 , 2013 Do not publish. See T EX

. R. A PP

. P. 47.2( b).
Panel consists of: Wright, C.J., McCall, J., and W ill son , J.