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Wilson v. State6/20/2003
court unless it was within the "zone of reasonable disagreement." Id. at 391.
In the instant case, the evidence that Wilson resisted being fingerprinted at the hospital was relevant and probative of his consciousness of guilt. The evidence did not require a significant amount of time to present, and the court's determination that the prejudicial effect of the evidence did not substantially outweigh its probative value was within the "zone of reasonable disagreement." See id.; Tex. R. Evid. 403.
We overrule Wilson's fourth issue.
Cross-Examination
In his fourth issue, Wilson contends the trial court "abused its discretion in ruling that the defense could not cross-examine the complainant officer as to information bearing on his state of mind, denying the defense the right to present a defense and the right to effective cross-examination in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Constitution." The State responds that Wilson waived these issues at trial by failing to object on these grounds. The State further responds that the trial court did not abuse its discretion in excluding the evidence because the evidence was not relevant. Even if such evidence was relevant, the State contends any error was harmless.
At trial, Wilson objected to the exclusion of evidence that Hancock had been involved in prior incidents in which he had been injured by suspects on the basis that it was relevant to show his propensity for drawing a weapon.
Reviewing the entire record, however, Wilson did not specifically object that the evidence was relevant to his state of mind. Wilson also did not at any time object on the basis that such exclusion violated his right to cross-examination or his right to present a defense. As stated above, to the extent that Wilson brings this issue on the basis of these grounds for the first time on appeal, he has waived his complaint. Tex. R. App. P. 33.1(a)(1); see Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Because Wilson properly preserved the issue on the basis of relevancy, we will address whether the trial court abused its discretion in excluding the evidence on this ground.
Relevant evidence is that evidence "having any tendency to make the existence of any fact or consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar, 38 S.W.3d at 153-54; Aguilera, 75 S.W.3d at 64.
Wilson asserts that he was entitled to cross-examine Hancock to show his possible propensity to pull his weapon more quickly than he would have had it not been for these prior incidents. As stated above, " vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith," unless it is introduced to prove motive, intent, absence of mistake, identity, common plan or scheme. Tex. R. Evid. 404(b). Because Wilson does not establish how the facts surrounding Hancock's prior injuries went to any other issue or fact other than Hancock's propensity to draw a weapon, we hold that the trial court did not abuse its discretion when it refused to admit such evidence. We overrule Wilson's fourth issue.
Defense of Necessity
In his fifth issue, Wilson contends that the trial court erred in refusing to submit the defense of necessity in the jury charge.
Upon a timely request, "an accused has the right to an instruction on any defensive issue raised by th
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