Friends?
[T.D.] Yes.
Q. So you've known some of them for what, 12 years?
[T.D.] Yes.
This was the extent of evidence offered by Appellant to support his claim of extraneous offenses, other than his own testimony that he and Appellant's ex-girlfriend had stayed out all night and "got drunk" the day before. Appellant was not allowed to present the testimony of the victims' families, and he was not allowed to present any other evidence to the contrary. It would be speculative to hold that Appellant's prior behavior with the same victim was evidence of his propensity to be a party to the charged offense. The court did not abuse its discretion by excluding this extraneous offense evidence. Point of error six is overruled.
B. Rule 401 and Rule 403
In point of error seven, Appellant contends that the trial court erred by refusing to admit evidence concerning the bad character of the victim. In point of error eight, Appellant contends that the trial court erred by refusing to admit evidence that he had made a recording of telephone conversations between himself and the victim.
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, 390 (Tex.Crim.App. 1990). Under Rule 404(a), evidence that a person committed an extraneous offense may be admissible for limited purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Tex. R. Evid.
404(b). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Tex. R. Evid.
403;
Montgomery
, 810 S.W.2d at 387. As explained below, the evidence Appellant sought to introduce under Rule 404 was relevant for a limited purpose and the court did not abuse its discretion by excluding it.
The victim was dating Appellant at the time of the offense. She spent the night of the murder with her girlfriends. A friend testified that she did not see Appellant at the victim's house before or after the murder, but she was unsure whether or not he was in the house earlier in the evening. Appellant contends that he was unable to make this point because the court would not allow him to question the friend about his prior misconduct with the victim.
Evidence of Appellant's other bad acts with the same victim is not admissible as evidence of his propensity to be a party to the charged offense.
See
Rankin v. State
, 974 S.W.2d 707, 712 (Tex.Crim.App. 1998).
When evidence of other crimes or bad acts is admissible to show the defendant's plan, knowledge, motive, or the absence of mistake, its relevance is enhanced to that level.
See
Clark v. State
, 665 S.W.2d 476, 479-80 (Tex.Crim.App.1984).
In
Rankin
, the victim's body was discovered in a car that was located on the appellant's father's farm, next to a large pile of horse manure.
Rankin
, 974 S.W.2d at 709. The court of criminal appeals held that the fact that the appellant lived on the same farm where the crime occurred was admissible to show identity.
Id.
at 712.
The court reasoned that the evidence was admissible to establish appellant's knowledge of the crime scene, motive, and absence of mistake.
Id.
In
Clark
, the victim's body was found in an alley behind the appellant's apartment building, and the court held that the evidence was admissible to show the appellant's lack of mistake.
Clark
, 665 S.W.2d at 478.
In
Vega
, the appellant was charged with shooting the complainant.
Vega
, 881 S.W.2d at 543. At trial, evidence of extraneous acts was admitted that showed the appellant assaulted a former girlfriend by hitting her in the face.
Id.
at 542. The court held that it was error to admit this extraneous offense evidence because the evidence was not relevant to a material issue other than character.
Id.
at 545.
But see
Rankin
, 974 S.W.2d at 711 (appellant's act of tying another woman's hands with a belt before shooting her in the head was not an extraneous offense).
The appellant's own testimony established that he had a motive and intent to commit the charged offense.
Vega
, 881 S.W.2d at 546.
The jury heard the evidence of the extraneous acts, but it had no bearing on the issue of identity.
Id.
Although the appellant did not testify, he "admitted to killing the complainant and that he tied her up before shooting her," which are facts that constitute identity, see
Rankin
, 974 S.W.2d at 712.
The court noted that, although it did not hold the evidence to be inadmissible,
"it should not be admitted at retrial."
Id.
at 712.
Here, as in
Rankin
and
Clark
, evidence of the extraneous conduct between Appellant and the victim is admissible to show Appellant's knowledge of the crime scene, motive, and absence of mistake. This evidence was not so prejudicial that it is outside the zone of reasonable disagreement.
See
Montgomery
, 810 S.W.2d at 391. Accordingly, the trial court did not abuse its discretion by refusing to admit the evidence of extraneous conduct. We overrule Appellant's point of error seven and hold that the trial court did not err by excluding the evidence concerning the bad character of the victim.
See
Tex. R. Evid.
404(b).
In point of error eight, Appellant contends that the trial court erred by refusing to admit evidence that Appellant had made a recording of telephone conversations between Appellant and the victim.
The record reflects that the State called Sergeant Frank Moya, who had investigated the murder, as a rebuttal witness in Appellant's case. The State offered Sergeant Moya's police report into evidence, and Appellant objected on the ground that the report did not contain an offense report. Sergeant Moya testified that his report did not include offense reports because they were not required by the Texas Code of Criminal Procedure.
Sergeant Moya testified that he talked to Appellant's attorney on several occasions and that he gave Appellant's attorney the officer's name who obtained the call records for the victim's phone. The prosecutor asked Sergeant Moya if the name of the officer was in his report, and Sergeant Moya testified, "It was not in my report because it was from the telephone company, not from a subpoena of my office." The State offered to mark the witness's entire file as an exhibit, but Appellant objected on the ground that there was no chain of custody.
Appellant did not request a jury instruction to limit the jury's use of Sergeant Moya's testimony, and he did not object to the fact that the State had not introduced the offense report. Thus, Appellant waived any complaint as to the absence of the offense report in the Sergeant's report.
See
Tex. R. App.
P. 33.1(a).
Furthermore, we have reviewed the portion of the record to which Appellant refers in his brief.
The phone company records were not introduced as evidence in this case, so Appellant has not established that he was harmed.
The offense report was not admitted into evidence.
Thus, the State did not offer extrinsic evidence of bad acts, and the court did not abuse its discretion by refusing to admit the recording of the telephone conversations as extraneous evidence. We overrule Appellant's point of error eight.
C. Motion for new trial
In his final point of error, Appellant complains that he was denied due process because the trial court did not make written findings of fact and conclusions of law after a hearing on his motion for new trial. We review the trial court's denial of a motion for new trial for abuse of discretion.
See
Hawkins v. State
, 964 S.W.2d 767, 772 (Tex.App.–Beaumont 1998, no pet.).
The record from the hearing on the motion for new trial shows that Appellant's trial counsel requested a hearing to inquire into Appellant's allegation that the State failed to provide information and evidence to him as required by a court order. The motion does not allege any evidence which would constitute newly-discovered evidence as required by the Texas Rules of Appellate Procedure.
See
Tex. R. App.
P. 21.3.
Appellant did not present any new evidence at the hearing on the motion for new trial, and the court did not abuse its discretion in refusing to order a hearing on his motion for new trial. We overrule Appellant
