Mary Katheryn Weaver Scott v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00246-CR ______________________________



MARY KATHERYN WEAVER SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Fifth Judicial District Court Cass County, Texas Trial Court No. 2004-F-00261

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Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss

MEMORANDUM OPINION

At first glance, Mike Scott's death appeared to be a suicide. On closer investigation and according to the State's evidence, however, his death appeared to be a homicide at the hands of Mary Katheryn Weaver Scott, his wife of less than one year. ⁽¹⁾ A Cass County jury found Mary guilty of murder and assessed her punishment at sixty years' imprisonment.

On appeal, Mary contends the trial court abused its discretion by admitting evidence that she previously shot at a former husband on two occasions, once narrowly missing his head as he lay in bed and the other causing bodily injury. In affirming her conviction, we (1) examine the factual background of this case, (2) conclude that the evidence of extraneous offenses was relevant to elemental facts contested at trial and to a defensive theory, and (3) explain that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice.

(1) Factual Background

(a) Relationship of Parties

Mary and Mike married in early 2002. From a prior relationship, Mary had two sons, Chad Weaver and Kevin Hailey. Chad and Kevin had both spent time in prison and may have been a source of some tension between Mary and Mike. Mary supported her sons and Chad's wife, Donna. By most accounts, there was a great deal of fighting and drug use among Mary, her sons, and Donna. Ultimately, Chad approached the police with information suggesting Mary was involved in Mike's death.

(b) Suicide or Homicide?

On December 13, 2002, the Atlanta Police Department received a call reporting that Mike had suffered an apparently self-inflicted gunshot wound. When Sergeant Mark West arrived at the family's trailer home, he found Mike dead on a waterbed. Mike's left hand lay across a Bible, and a cross pendant lay across his hand. Underneath the fingers of his left hand was also a torn piece of paper bearing a note written in Mike's hand which read, "To my wife, the one thing I cannot live without is you. I love you." All involved agree that the note was in Mike's handwriting and that the bottom portion of the paper that had been torn off the note was never recovered.

The scene suggested Mike shot himself. A deer rifle lay under the covers and was placed under his chin--his right thumb located near the trigger. West testified that the position of Mike's hands was unusual since such a high-powered rifle would appear to require two hands to operate. Unexplained was the towel beneath Mike's body. No identifiable fingerprints were found on the note or on the rifle. It was suggested at trial that the lack of fingerprints on the gun was attributable to the "bluing" of the metal on the rifle. The bullet that killed Mike struck the bedroom wall between the headboard and the mattress and exited the trailer house at a downward angle, but the bullet was never found. Gunshot residue tests were not performed.

(c) Mary's Written Statements

Mary gave a statement December 17, 2002, that provided one version of events:

On Friday, 12/13/02, at approximately 6:00 p.m., Mike came in from work and seemed very tired. He sat on the couch and we talked for a while. I asked him if he wanted to take a shower while I cooked supper. He said yes and then went and took a shower while I cooked. After his shower, we ate supper in the bedroom. After we were finished eating, we watched TV for a while. Then my mother called around bedtime and told me to come get my dog. I walked to my mother's house, which is next door, to get my dog. While I was there, I asked my mother to [o]pen her Christmas present. She opened her present and then I got my dog and left. I was at my mother's house about fifteen minutes. When I walked back home, I opened the door, and when I closed it, I heard a loud noise. I thought it may have been the mirror falling off the wall. I walked down the hall towards the bedroom. When I got halfway down the hall, I could smell something strange. It smelled like something burning. I then walked into the bedroom and found Mike laying on the bed with a rifle laying across his body. I immediately called 9-1-1 and asked the operator how to do CPR. She told me there would be someone there in just a minute, so I hung up. Mike's hand was laying on a Bible that I had bought for him, and he also had a necklace that I bought for him across his hand. He also left a note, and I vaguely remember reading it. I am not sure if I picked it up or not. About this time, the police officer arrived.

On February 24, 2004, Mary gave another written statement, that varied in some respects from her earlier statement:

On 12/13/02, I was at home with my husband, Mike Scott. We had supper between 6:00 and 7:00 p.m. in the bedroom. Mike and I laid there and watched television. At about 10:00 p.m., I went to my mother's house next door to get my dog and to give her her birthday present. I walked back to my house holding my dog, and I walked in the door and I heard a strange noise that sounded like a pop. I thought my mirror had fallen on the floor, and I walked back to the back bedroom. The first thing I saw was Mike laying on the bed and I saw a deer rifle on Mike, and it was between his legs and he was turned a little bit on his left side facing me. I reached over and took his left hand and held it. I then called 9-1-1 for help, using the telephone in the bedroom on the nightstand on my side of the bed. I told the operator I did not know how to do CPR. After the 9-1-1 call, I called Sondra and Eugene Smith and told them Mike had just shot himself. They told me, we'll be right there. After I hung up with Sondra, I knelt beside the bed and prayed. The Bible was on the bed, and I believe I picked it up from the foot of the bed and laid the Bible underneath his hand. I took the necklace that was on the nightstand lamp, where I had hung the necklace the night before. I laid the necklace across Mike's hand. I picked the note up that Mike had written and read the note and laid the note back [down]. The police started arriving, and when they came in they asked me to leave the room, and Sondra and Eugene came along with Mandy Wise and we joined hands and prayed.

Mary's second statement adds some inconsistent details such as the fact that the Bible had been at the foot of the bed and that Mary had placed the Bible under Mike's hand after she had found his body.

(d) Mary's Interest in Mike's Life Insurance

The jury heard evidence that Mary was very interested in the life insurance policy that had been issued through Mike's employment. Stephanie Grimaldi testified that she had worked with Mike at Harmon Glass for ten years and that Mike had made Mary the beneficiary of his life insurance policy shortly after their marriage. Mike had asked Grimaldi to write an explanation of the benefits so that he could better explain them to Mary. Mike later asked Grimaldi to speak with Mary by telephone so that Mary could understand the benefits.

(e) Mike's Conversations with Friends the Night of His Death

Between 7:00 and 7:30 on the night of his death, Mike spoke with Jack Hines, his friend of over thirty years. The two had originally planned to leave that night to go to a deer camp, but Hines had to cancel the trip due to illness. Hines testified that he did not note anything peculiar about Mike's demeanor and that the two had laughed together that night. Similarly, Rocky Moses, who also talked to Mike the night of his death, testified that Mike did not seem to be depressed at the time.

(f) Conflicting Forensic Evidence

Dr. Jeffrey Barnard is the chief medical examiner of Dallas County and the director of the Southwestern Institute of Forensic Sciences. Barnard explained that the original autopsy report listed the cause of Mike's death as a gunshot wound to the head and the manner of death as suicide. Later, Barnard's department changed its opinion, concluding that Mike's death was a homicide. Barnard explained that this change in opinion was partly based on conversations with investigators. Particularly, he explained that the decision to change the opinion on the manner of death was based on data regarding the position of Mike's left hand, crime scene photographs, and investigative results. Barnard testified that it would be unusual, but not impossible, to find a person's hands in the position in which Mike's were found if that person had committed suicide.

Dr. Vincent DeMaio was the chief medical examiner of Bexar County. He testified that the evidence supported the initial conclusion that Mike had died from a self-inflicted gunshot wound. DeMaio described the wound as a "hard contact" wound in which the gun was pressed into the chin. To support the suicide theory, he also pointed to the superficial cut on Mike's right thumb, which he described as consistent with an injury caused by the recoil of the gun when the thumb is used to pull the trigger. He disagreed that it would be unusual to handle the gun with one hand.

(g) Mary's Conversations with Chad

Chad testified that, following Mike's death, Mary started telling Chad about Mike's death and her justification for it. The police made arrangements with Chad to record a conversation with Mary regarding Mike's death. The first attempt at recording a conversation failed due to technical problems. Later, however, Chad managed to record a conversation with Mary in which she, again, seemed to offer her rationale for having killed Mike:

Chad: Now Melinda told Donna some stuff. Did you have gloves on when you touched that gun and put it up under-under-however you put it in there?

Mary: Well, the thing is, any of us could have touched the gun.

Chad. I know.

Mary: Our DNA being on there don't matter.

Chad: I'm just saying.

Mary: The first thing you could--first thing you have to say, you weren't here.

Chad: I know.

Mary: You've got a witness.

Chad: You had Kevin to take me out of here.

Mary: Okay, you weren't here. Okay. Of course you looked at Mike's guns, you were interested in them. You're--

Chad: Well, I mean you had me to check it and--

Mary: I didn't know how. I didn't know how. But what I'm trying to tell you Chad, what I--you won't listen to.

Chad: And then here Kevin threatens you with it and you pay him $5,000.00.

Mary: Well, when I get $5,000.00 I'll see that you get it.

Chad: I don't want your money.

. . . .

Chad: Well. I mean why did you have to kill him? He didn't f***ing deserve it.

Mary: You don't understand. You don't understand. You and Kevin were both going to have to leave. If--you don't understand that he can bury me and neither of ya'll were here. Neither one of y'all were here, Chad. Neither one of you were here. And everything was just loving and gorgeous. He got to where he'd lock mama and Kevin out by 8:00. And boy, when he found out you were coming home, he went berserk. He went crazy. And I had two children that had been in prison that I loved dearly and I missed y'all so da** bad I couldn't hardly stand it. My life ever since--every day of my life I got up crying, Chad. Every day. It was horrible.

Chad: Well, he didn't deserve to die for that.

Mary: No, he didn't deserve to die for that and if I could take it back, I would, I can't. But what I'm trying to make you understand, he was going to make you and Kevin both move out. And I said, well, why don't you just move out? He said, I ain't going nowhere. You just don't understand, Chad. I wanted y'all to have a start. I wanted y'all to have something. And y'all spent everything, everything I gave you on crack.

Chad: Mother, Kevin went and blowed that money you gave him on crack.

Mary: I know. And I was hoping you'd do better.

Chad: Well, I ain't . . . . (inaudible).

Mary: But, Chad, you just don't realize how miserable I was.

Chad: Well, you think--I mean, you could have got me in trouble for some of that sh**.

Mary: There ain't no way. All you would have had to say is--

Chad: I ain't had to say nothing because I didn't know nothing about it.

Mary: Well, they've taken my DNA. They can't get a match. If you'll keep your da** mouth shut, they can't get a match. It's been a year and a half, they'd already arrested me. They can't get a match. Can you imagine how many people have handled that gun?

(h) Evidence at Issue

During the State's rebuttal, it presented the testimony of Thomas Templeton, one of Mary's ex-husbands. He described two incidents in which Mary shot at him. During the first incident, Mary and Templeton had been arguing. He explained that Mary stood at the end of the bed on which he was lying and fired the gun at him, hitting a spot just above his head. In a later incident, Mary shot him during another argument. In the second incident, as Templeton was leaving the bathroom, he testified, Mary held a pistol and threatened to shoot off his genitalia. This time she fired and hit Templeton about mid-thigh. Mary was convicted for assault causing bodily injury in connection with this second incident.

(2) Rule 404(b): Evidence of Extraneous Bad Acts Was Relevant Apart from Character Conformity

At trial, the State argued in favor of the admission of this evidence, maintaining that Templeton's testimony was evidence of Mary's motive, method of operation, common scheme, and the "entire laundry list" included under Rule 404(b).

(a) Standard of Review

Because the trial court is in the best position to determine substantive admissibility issues, an appellate court must review the trial court's admissibility decision for an abuse of discretion. See Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Under this standard of review, we will uphold a trial court's decision regarding admissibility so long as that decision is within the zone of reasonable disagreement. See Robbins, 88 S.W.3d at 262; Santellan v. State, 939 S.W.2d 155, 168-69 (Tex. Crim. App. 1997). We should uphold a trial court's decision if it is correct on any theory of law applicable to the case "even when the trial [court] gives the wrong reason for his decision." Robbins, 88 S.W.3d at 262 (quoting Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

(b) Admission of Evidence Under Rule 404(b) Generally

To guard against an accused being prosecuted for some collateral crime or misconduct, the State may not, as a general rule, introduce evidence of bad acts similar to the offense charged. Roberts v. State, 29 S.W.3d 596, 600-01 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). Rule 404 provides that "[e]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." Tex. R. Evid. 404(b). Evidence of extraneous misconduct may be admissible, however, when it is relevant to a non-character-conformity "fact of consequence" in a case, such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or rebutting a defensive theory. Id.; Robbins, 88 S.W.3d at 259; Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).

The list included in Rule 404(b) is not exhaustive. "If it were intended for the Rule to allow an exception only for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, then it would not have included the phrase 'other purposes, such as.'" Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006). This language makes clear that there are additional "other purposes" for which evidence of prior acts may be admitted. Id. The Texas Court of Criminal Appeals has stated that "evidence will be relevant to a material issue if the purpose for which the party seeks to have it submitted tends to make 'the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).

"If the opponent of extraneous offense evidence objects on the grounds that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must satisfy the trial court that the extraneous offense evidence has relevance apart from its character conformity value." Santellan, 939 S.W.2d at 168-69. If the trial court determines the evidence has no relevance apart from supporting the conclusion that the defendant acted in conformity with his or her character, it is absolutely inadmissible. Id.; Montgomery, 810 S.W.2d at 387. On the other hand, extraneous-offense evidence is admissible if the proponent persuades the trial court that the extraneous evidence

tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g. absence of mistake or accident . . . [or] that it is relevant upon a logical inference not anticipated by the rulemakers.

Montgomery, 810 S.W.2d at 387-88; see also Taylor v. State, 920 S.W.2d 319, 321 (Tex. Crim. App. 1996). Put another way, the evidence must be relevant to a factor of consequence contested in the case. See Rankin v. State, 974 S.W.2d 707, 718-19 (Tex. Crim. App. 1996); Prince v. State, 192 S.W.3d 49, 54 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd).

Evidence of other crimes, wrongs, or acts has non-character-conformity relevance where the evidence tends to weaken defensive evidence that undermines an elemental fact. See Robbins, 88 S.W.3d at 262; Montgomery, 810 S.W.2d at 387. The range of material issues in each case will depend on the theories of the prosecution and the defense in that case. See Garcia, 201 S.W.3d at 703; Smith, 5 S.W.3d at 679 n.13.

(c) Relevance to Elemental Facts: Action and Identity

Here, the challenged evidence is relevant to an elemental fact other than Mary's acting in conformity with character. A person commits murder if he or she intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). The challenged evidence is relevant to whether Mary committed an intentional act that caused Mike's death.

We rely generally on Robbins in which the Texas Court of Criminal Appeals held that evidence of extraneous acts was admissible in a capital murder case to rebut the defensive theory that the victim died by some means other than an intentional act of Robbins. 88 S.W.3d at 259-63. Take, for instance, Robbins' theory that the bruises on the infant victim's body were caused by his poorly performed CPR technique. See id. at 258. During its examination of whether evidence of prior injuries to the infant victim ⁽²⁾ while in Robbins' care was relevant to the element of intent, the Texas Court of Criminal Appeals considered it "crucial" that Robbins went beyond a simple plea of not guilty by advancing this and other defensive theories that would explain the infant's death. See id. at 261. The court concluded that, through vigorous cross-examination and the presentation of defensive theories, Robbins did put at issue his intent: "[W]e cannot say that the trial court would have been outside the zone of reasonable disagreement to have decided that the relationship evidence was relevant to appellant's intent." See id.

Mary, too, went beyond a simple plea of not guilty and in doing so, put at issue the shooter's identity. Throughout the trial, Mary undermined the evidence that she committed any act to satisfy the elements of murder by advancing her theory that Mike committed suicide. From the beginning of the investigation, the theory that Mike had committed suicide was significant in this case. The responding officers first viewed the scene as a suicide. The initial autopsy, although performed without reference to the crime scene photographs, also ruled Mike's death a suicide. Through both cross-examination of the State's witnesses and direct examination of her own witnesses, Mary vigorously advanced the theory of Mike's suicide, that is, that she did not directly cause Mike's death.

We recognize that the CPR theory in Robbins varies to some extent from Mary's suicide theory. While both defensive theories directly challenge an element of the offense, the CPR theory implicates the intent element. Here, Mary did not argue that she did not intend to kill Mike; she argued that she did not shoot him at all. In that respect, the other theory advanced in Robbins is, perhaps, even more analogous to the instant case. Robbins also contended the victim died as a result of Sudden Infant Death Syndrome (SIDS). In doing so, Robbins, in much the same way as does Mary, attempted to undermine the evidence that he performed any act that would cause the death of the infant.

Relying on the reasoning of Robbins and a detailed examination of the circumstances of the instant case, we conclude that the evidence of Mary's prior bad acts was relevant to rebut the evidence she presented that undermined an elemental fact determination whether Mary committed any act constituting murder. According to Mary's theory and her evidence, Mike committed suicide. This evidence goes to the very fundamental fact of consequence, whether there was an act of murder. On that basis, the trial court could have reasonably concluded that the evidence at issue was relevant apart from its tendency to show character conformity. Put in the traditional formulation of Montgomery and Robbins, the evidence of extraneous bad acts tended to undermine Mary's evidence of suicide.

Similarly, the evidence in question goes to the issue of identity, but not in quite the same way as many of the cases that address the issue of identity. That is to say, the evidence is undisputed that Mike was fatally shot. Since the evidence narrowed the list of possible shooters to only two people--Mary and Mike--the identity of that person is most certainly a fact of consequence. Since Mary puts at issue the identity of the person who shot Mike, the evidence of extraneous offenses is relevant to rebut the claim that Mike shot himself and tends to establish that Mary, the only alternative, was the shooter. It is, at a minimum, also subject to reasonable disagreement whether the extraneous-offense evidence made the defensive theory of suicide less probable. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

(d) Simple Rebuttal of Defensive Theory of Suicide

Recognizing that it need not rely solely on the intent basis for upholding the trial court's admission, the Robbins court concluded more explicitly that the extraneous-offense evidence was also relevant simply as a means of rebutting the defensive theories urged at trial. See Robbins, 88 S.W.3d at 262. Here, the evidence most certainly serves as a rebuttal to Mary's theory that Mike committed suicide.

(e) Concerns Regarding Similarity of Acts

Mary relies on Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992), in arguing here that the extraneous acts were not so similar to the charged offense that they would fall within an exception of Rule 404(b). The Owens trial court had admitted evidence of a prior sexual assault of a young female on the basis that such evidence established a "system," ⁽³⁾ and the Texas Court of Criminal Appeals analyzed that basis as one relating to Owens' "modus operandi" or "methodology." See id. at 914-15. That court concluded that the extraneous offense was not so similar to the charged offense that it would establish such a "system." Specifically, the Owens court observed that:

[w]hen the State seeks to admit extraneous offense evidence under a theory of "system" or modus operandi, "there must be a showing that the extraneous offense which was committed by the defendant was 'so nearly identical in method [to the charged offense] as to earmark them as the handiwork of the accused.'"

Id. at 915. The Owens court then concluded that the extraneous offense and the charged offense were not so idiosyncratically similar as to show that "the two offenses were the handiwork of the same individual." Id.

We note that the Owens court analyzed the admission of the evidence to determine whether such evidence was relevant as a showing of a "system" of operation. There, the State failed to reach the requisite high standard in showing similarity between the extraneous acts and the charged offense. Id. Here, as we have explained, the nature of the charged offense and the defensive theory have led us to conclude that the evidence of extraneous bad acts was relevant to other factors of consequence. Owens is thus distinguishable from the case at bar. See Garcia, 201 S.W.3d at 703.

(f) Trial Court Did Not Abuse Its Discretion in Ruling the Evidence Properly Relevant Under Rule 404(b)

It is within the zone of reasonable debate to conclude that the evidence of the two prior shootings was relevant to the shooting in this case and to the identity of the individual who shot Mike. Such evidence also serves simply as a rebuttal to Mary's theory that Mike committed suicide. Keeping in mind the deferential appellate standard of review, we cannot say that the trial court abused its discretion when it deemed the evidence of extraneous bad acts relevant to an elemental fact of consequence in this case, apart from its tendency to show conformity with character. ⁽⁴⁾ See Robbins, 88 S.W.3d at 261.

(3) Rule 403: Balancing the Probative Value with the Danger of Unfair Prejudice

Evidence deemed relevant under Rule 404(b) may nonetheless be excludable under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one. See Mozon, 991 S.W.2d at 847 n.7.

In conducting a Rule 403 balancing test, a trial court should consider the following factors: (a) the probative value of the evidence; (b) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (c) the time the proponent needs to develop the evidence; and (d) the proponent's need for the evidence. See Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). The Rule 403 balancing test carries a presumption that relevant evidence will be more probative than prejudicial. See Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003); Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).

(a) Probative Value

The first factor weighs in favor of the State. As discussed earlier in our Rule 404(b) analysis, evidence of the extraneous offenses was probative to make it more probable that Mary was the shooter and to rebut Mary's defensive theory that Mike committed suicide. See Powell, 63 S.W.3d at 438 (State may offer evidence of extraneous offense to rebut defense of "lack of opportunity"); Waddell v. State, 873 S.W.2d 130, 136 (Tex. App.--Beaumont 1994, pet. ref'd) (extraneous acts were logical and necessary rebuttal of defensive theory of fabrication). Several factors have been used to measure the probative value of an extraneous offense: (1) similarity between the extraneous act or offense and the offense charged, (2) closeness in time ⁽⁵⁾ of the extraneous transaction to the charged offense, and (3) availability of alternative sources of proof. See Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985).

Here, the extraneous acts were quite similar in that the relationship and context were much the same as those present in the charged offense: all were between spouses and sprung from disagreements, even disagreements over children. Also, Mary's approach to resolution in the extraneous acts was similar to that alleged by the State in the instant case. Though separated by some time, the events involved two successive marriages, keeping the probative value high. As to the availability of alternate sources of proof, we note that the forensic evidence was conflicting on the homicide-or-suicide dichotomy. Two experts in forensic pathology came to opposite conclusions on the matter. While the recorded conversation between Chad and Mary represents alternate proof of Mary's guilt, it did not constitute an absolute admission.

The evidence of extraneous acts has strong probative value.

(b) Potential Impact on Jury

The second factor weighs in Mary's favor. The evidence of these extraneous offenses does have some potential to impress the jury in some irrational, yet indelible way. Evidence suggesting that Mary has developed a pattern of shooting her husbands when faced with marital conflict would likely influence the jury here where the central issue was whether she shot Mike or whether Mike shot himself.

(c) Time Necessary for Development

The third factor weighs in favor of the State. The State presented Templeton's testimony in approximately five pages of the seven-volume record. The limited time needed to develop Templeton's testimony supports its admission.

(d) Need for Evidence

The fourth factor also weighs in favor of the State. Mary presented DeMaio's testimony that contradicted the State's theory and strongly suggested that Mike, in fact, committed suicide. With the conflicting opinions of the forensic experts, the State's need for this evidence was fairly substantial. However, undermining the State's need for this evidence is Mary's own conversation with her son. While Mary's statements strongly suggest that she, not Mike himself, caused his death, her statement never plainly admits that she killed him. This factor weighs in favor of admitting the extraneous-act evidence.

Based on an evaluation of the Rule 403 factors, we conclude that the trial court did not abuse its discretion in determining that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. Accordingly, we overrule Mary's contention.

(4) Conclusion

Since the evidence that Mary had twice shot at a former husband was relevant aside from its tendency to show that Mary acted in conformity with bad character, and since the danger of unfair prejudice did not substantially outweigh the probative value of this evidence, the trial court did not abuse its discretion by admitting such evidence.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 7, 2007

Date Decided: April 20, 2007

Do Not Publish

1. We will use the first names of Mary and Mike to avoid confusion.

2. We note this distinction between Robbins and the instant case. Robbins involved evidence of extraneous acts against the same infant who would eventually become the homicide victim. Such is not the case here; the prior shootings were directed at a prior husband. However, we think the reasoning of Robbins still applies here.

3. The Texas Court of Criminal Appeals noted that Rule 404 did not specifically mention a "system" exception and suggested that this "system" exception may have also referred to the "common plan or design" exception. See Owens, 827 S.W.2d at 915 n.4.

4. Although we conclude that the trial court did not abuse its discretion by ruling the evidence properly relevant, we pause to acknowledge the position of those who might take the contrary position. To that position, we conclude that any error that would have stemmed from admission of the evidence of the prior shooting would have been harmless error on these facts. When we consider the inconsistencies of her written statements and, most obviously, the incriminating nature of some of the statements Mary made to Chad, we conclude that any error associated with admission of this evidence would not have affected Mary's substantial rights. See Tex. R. App. P. 44.2(b); Tex. R. Evid. 103.

5. Mary contends that we must consider the time that has elapsed between the extraneous acts and the charged offense. Under certain circumstances, we are called on to consider the remoteness of the extraneous offenses: "In addition to similarity, remoteness is another factor to be considered in determining whether the extraneous offense bears the defendant's signature." Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.--Corpus Christi 2002, pet. ref'd). However, here, we are not concerned with whether the charged offense bore Mary's signature and, therefore, we need not measure the offenses with such exacting standards of similarity and proximity. Rule 404 contains no express time limitation. See Templin v. State, 711 S.W.2d 30, 34 (Tex. Crim. App. 1986); Prince, 192 S.W.3d at 55.