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Wilson v. State6/20/2003
also within the province of the jury to believe the State's theory that Wilson had a second gun and shot at Hancock while he was behind his patrol car and while he was chasing Wilson. Cuellar, Ellis, and Salazar saw Wilson running backward and shooting in the direction of Hancock. Cuellar, Ellis, and Salazar also saw fire come out of the gun that Wilson was using. Ellis and Salazar testified they saw Wilson throw something over a fence during the police chase. Wilson also had barium and lead on his left hand, which was consistent with firing a .22 weapon. Having reviewed the entire record, we conclude that the evidence is legally and factually sufficient to support Wilson's conviction for attempted capital murder of a peace officer. We overrule Wilson's first and second issues.
Texas Rule of Evidence 401, 403, & 404(b)
In his third issue, Wilson contends the trial court abused its discretion when it failed to suppress evidence that Wilson clenched his fists when Officer Tiffany Dillon ("Dillon") attempted to fingerprint him after his arrest. Wilson asserts that the evidence should have been excluded because the State failed to provide proper notice of its intent to introduce such evidence pursuant to Texas Rule of Civil Procedure 404(b). Wilson further contends that even if the evidence was not within the scope of Rule 404(b), such evidence was inadmissible under Rules 401 and 403 because it was not relevant, more prejudicial than probative, and violated the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. The State responds that it was not required to give notice of its intent to introduce such evidence pursuant to Rule 404(b) because it was "same transaction contextual evidence." Even if the evidence was subject to the 404(b) notice requirement, the State further responds that it gave Wilson sufficient notice of its intent to introduce the evidence and that the evidence was both relevant and more probative than prejudicial. Finally, the State argues that even if the trial court committed error by improperly admitting the evidence, such error was harmless.
Texas Rule of Evidence 404(b) provides that extraneous acts may be admissible to prove
"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," provided that upon a defendant's timely request, the State gives reasonable notice of its intent to introduce such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b). For an extraneous offense to be admitted at trial, it must be relevant to a material issue in the case other than the defendant's character. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (opinion on reh'g). All relevant evidence, that is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable," is admissible. Tex. R. Evid. 401, 402.
We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001); Aguilera v. State, 75 S.W.3d 60, 64 (Tex. App.-San Antonio, 2002, pet. ref'd). "The trial court abuses its discretion when it acts without reference to any guiding rules and principles, or acts in a manner that is arbitrary or capricious." Lam v. State, 25 S.W.3d 233, 236-37 (Tex. App.-San Antonio 2000, no pet.) (citing Montgomery, 810 S.W.2d at 392). We will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar, 38 S.W.3d at 153-54.
Before we address the issue of whether the State gave proper notice to Wilso
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