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Mendez v. State4/25/2002
role officer, that appellant wore an electronic monitor at the time of the alleged offense. Appellant objected to the testimony at trial on the basis that the probative value was limited because no doubt had been cast on the fact he was present at the crime scene, and the prejudicial value was high because it indicated to the jury that appellant was on parole for another crime. The specific authority appellant cited at a hearing outside the presence of the jury was Rules 404B, 403, 608, and 609F of the Rules of Evidence. The State noted that appellant was on parole for burglary, which was charged in the enhancement paragraph of the indictment and, because the case was based on circumstantial evidence, the State should be permitted to prove that appellant was present at the time of Sandra's injury.
The court ruled that the evidence was probative under Rule 404B. The State further agreed to limit any testimony as to the witness's employment as a parole officer and to show that he was merely the custodian of the records. In Salinas's testimony at trial, there was no mention of what job Salinas held or that appellant was on parole for another crime. The witness simply stated he brought some electronic monitoring records pertaining to appellant, he had reviewed the records, and that according to the records, appellant had been within 150 feet of his apartment between 10:10 a.m. on December 31, 2000, and 2:58 a.m. on January 1, 2001.
On appeal, appellant argues the evidence is cumulative because a neighbor, Lorenzo Sierra, Jr., testified that he observed appellant standing in the doorway of the apartment within minutes of when Sandra was stabbed. Further, he argues, evidence of other crimes is not admissible to prove the character of a person. Finally, he cites Cooper v. State, 901 S.W.2d 757 (Tex.App.--Beaumont 1995, pet. dism'd), for the proposition that the State is not entitled to "set the stage" for a witness to testify to facts not otherwise at issue, because the State asserts the witness will rebut a defensive theory.
Rule 404(b) of the Rules of Evidence provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). However, in this instance, there was neither direct mention of any crime nor of the fact appellant was on parole. Thus, although the jury may have wondered about the use of electronic monitoring, there was no direct evidence that appellant had been convicted of a crime or what that crime may have been. The only evidence before the jury was of electronic monitoring to prove appellant's presence at the scene during the period of time when the crime took place.
Although appellant argues that the State may not "set the stage" with evidence of appellant's presence until he has testified he was not present at the time of the incident, the State has the burden of proving beyond a reasonable doubt that appellant intentionally and knowingly caused Sandra's death by stabbing her with a knife, which necessarily requires the State to prove his presence at the crime scene. In contrast, the Cooper case on which appellant relies involved evidence of anal intercourse with the defendant's girlfriend to show a pattern of behavior that he also allegedly had anal intercourse with her two children. The court found that, in addition to the fact the evidence was not relevant as to identity or intent, the children had not yet been questioned at that point in time and therefore, any impeachment of their testimony was not yet a problem for the State to address with the mother's testimony. Cooper, 901 S.W.2d at 762.
In this case, there was test
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