Opinion issued August 28, 2014
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-12-00755-CR, 01-12-00756-CR
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KEITH ALAN COOK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case Nos. 1263337, 1263338
MEMORANDUM OPINION
Keith Alan Cook was convicted of two counts of burglary of a habitation
with intent to commit assault. 1 The jury assessed punishment of ten years’
confinement on each case, the sentences to run concurrently. In two points of
error, Cook contends that (1) the trial court abused its discretion by allowing the
State to introduce evidence of extraneous bad acts violating Cook’s substantial
rights, and (2) the trial court committed harmful error by allowing evidence of
three of Cook’s prior convictions during the guilt-innocence phase of trial. We
affirm.
Background
Cook was convicted of two incidents of burglarizing a habitation with intent
to commit assault on Monica Parra—April 24, 2010 and May 14, 2010. Parra, a
single mother with a young son who had lived across the street from Cook for
several years without incident, testified that, beginning in February 2010, she had
several unpleasant, violent experiences with Cook, including the two charged
offenses.
Prior to presenting Parra as its first witness, the State informed the trial court
that it intended to introduce evidence of two extraneous offenses (March 27, 2010
and May 4, 2010) to prove Cook’s intent to commit an assault and Parra’s “state of
1
A person commits burglary if he “enters a habitation . . . with intent to commit a
felony, theft or an assault[.]” TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
A person commits an assault if he “intentionally or knowingly threatens another
with imminent bodily injury” or “intentionally, knowingly or recklessly causes
bodily injury to another.” Id. § 22.01(a)(1), (2).
2
mind.” Cook objected and argued that the State was “jumping the gun” by
bringing up these extraneous offenses to show intent, since intent was not yet at
issue, and that the evidence was offered solely for the purpose of proving bad
character and conduct in conformity with that character, in violation of Texas Rule
of Evidence 404. Cook also argued that the evidence was more prejudicial than
probative, in violation of Rule of Evidence 403. The trial court overruled Cook’s
objections and admitted the evidence.
A. February 2010–Extraneous Bad Acts
Parra testified that in February 2010, Cook appeared uninvited at a Super
Bowl party at her home. Cook “harassed” everybody at the party, “threatened
people,” “took food” that was not offered to him, “cussed at people,” and got into a
verbal altercation with Parra’s brother and uncle. The police were called but no
charges were filed against Cook. According to Parra, she had no problems with
Cook prior to this incident.
B. March 27, 2010–Extraneous Bad Acts
Parra also testified that as she was cleaning out her house, Cook “came from
across the street,” started “cussing” at her, “throwing bottles” on her carport and
driveway while complaining about Parra and the other “stupid wetbacks” that lived
3
in the house.2 Cook “punched the front door” and “broke the glass” during this
incident. When Parra left to call the police from her neighbor’s house, Cook called
her a “stupid bitch,” and told her “to be careful” because that is what she gets “for
being a single mom.” Again, the police were called but no charges were filed.
C. April 24, 2010–Charged Offense
On the morning of April 24, 2010 Parra testified that she was awaken
between two and three a.m. by Cook, who had entered her home through her
bedroom window, and was pulling her hair out in clumps and taunting her, “I
told you, stupid bitch. I’m going to get you one way or the other.” Cook also
told Parra that “if [she] wasn’t his, [she] wasn’t nobodys.” Fearing for herself
and her infant son, she grabbed the child and the two escaped through a window in
the next room. Parra testified that Cook hit her cheek and punched her son in the
mouth as she ran to her neighbor’s house for help. Cook was arrested at his
home.
D. May 4, 2010–Extraneous Bad Acts
Parra testified that she watched as Cook grabbed her brother, who was
standing at her front door, and dragged him across the street to Cook’s house.
2
When the State asked Parra about the incident, Cook asked for a limiting
instruction. The trial court overruled the objection and stated, “Instructions of the
jury come at the end when I charge the jury.” Cook does not argue on appeal that
the trial court erred in denying his request for a contemporaneous limiting
instruction or provide any case law on this issue.
4
According to Parra, Cook proceeded to “beat the hell out of” her brother and held a
“cracked bottle under [her] brother’s throat.” After Parra’s brother got away from
Cook and the police were called, Cook told Parra that she “wasn’t going to get
away easy” and that “he was still going to be harassing [her] no matter what.”
Parra also testified that Cook told her brother: “Just because you’re here, she’s not
safe. And once you leave it’s still going to be the same.” The police were called
and Cook was arrested and charged with public intoxication and Class C Assault.
The charges were later dismissed.
E. May 14, 2010–Charged Offense
While in the kitchen with her son making breakfast on May 14, 2010, Parra
heard her screen door open and saw Cook, neither invited nor expected, standing
barefoot in her living room. Cook, with a knife in his hand, approached Parra who
grabbed her son and threw a pan of hot oil at Cook who “started grabbing the
vases, picture frames, throwing it across the living room, breaking whatever he
could break.” Parra and her son ran to their neighbor’s house where Parra called
the police. By the time the police arrived, Cook had returned to his house across
the street. Parra thought Cook was going to kill her that morning when she saw
him standing in her living room holding a knife in his hand.
5
F. Cook’s Brother
On cross-examination, Parra was asked about the sixteen 9-1-1 calls she
made to report a problem with Cook or his family—both before and after his May
2010 arrest. In particular, whether she had made the March 15, 2011 call resulting
in the arrest of Cook’s brother.3 On redirect examination, Parra testified that Cook
sent his brother to harass her into dropping the charges against Cook.
Q. (State) Now, in response to defense counsel questioning of you
about [Cook’s] brother, you, in fact, called the cops on [Cook’s]
brother, didn’t you?
A. (Parra) Yes.
Q. Was this after [Cook] sent him over to harass you?
A. Yes.
Q. Was this after [Cook] sent him over to make you drop charges?
A. Yes.
Cook’s objection to the State’s attempt to inject facts not in evidence was sustained
and the jury was instructed to disregard the testimony, but Cook’s request for a
mistrial was denied. The State then inquired as to the brother’s demeanor at her
home:
Q. (State) Was [Cook’s brother] yelling at you?
A. (Parra) Yes.
3
There is conflicting evidence in the record as to when Cook’s brother went to
Parra’s property and was arrested.
6
Q. What was he saying to you?
A. That I needed to drop the charges against his brother because he
has —
The trial court sustained Cook’s hearsay objection and instructed the jury to
disregard the testimony, but denied Cook’s request for a mistrial.
In response to further questions about her encounter with the brother, who
lived with Cook across the street, Parra testified that she panicked when, with gait
impaired and speech slurred by alcohol, he came unbidden to her home, yelled at
and insulted her and refused to leave. Parra was driven from her own home to her
next door neighbor to call the police.
Parra testified that her fear of the brother resulted from his “violent history,”
which she explained stemmed from his “hitting women,” “prostitution,” and
“drugs.” Cook’s objection to this line of questioning for lack of personal
knowledge and speculation were overruled.
G. Other State Witnesses
The jury also heard testimony from the officers who responded to Parra’s
calls for assistance on March 27th and May 4th, as well as the officer who
responded to the May 14th offense, and the lead investigator on both charged
offenses. These witnesses corroborated parts of Parra’s testimony regarding each
incident (i.e., broken glass in Parra’s driveway; disheveled appearance, scratches
and red marks on her brother’s body; the broken vase and picture frames in Parra’s
7
living room; the bricks stacked under Parra’s bedroom window; and the scar on her
son’s face). The responding officer on the May 4th incident also testified that
Cook initially refused to answer the door and when he finally did answer, would
not step outside to answer questions. Rather, using abusive language, Cook swore
at the uniformed officer and taunted the officer to come and get him from behind
the locked burglar door.
Jocelyn Benavides, a neighbor of both Parra and Cook, testified that Cook
was not a good neighbor and that she had been “warned by other neighbors just to
stay away.” Ms. Benavides recounted one occasion that Parra had run to her house
after she had been threatened by Cook’s brother. Believing Parra to be
endangered, Benavides called the police.
H. Trial Testimony of Defense Witnesses
Cook denied both burglaries and suggested that Parra and several law
enforcement officers were lying about his involvement. Cook denied that any of
the extraneous bad acts occurred and testified that he had been in Parra’s home
only once: when invited by her brother for the 2010 Super Bowl party. Cook also
testified that he cooperated with the police as much as possible, including giving a
statement after he was arrested. He denied swearing at or directing abusive
language towards the officer who tried to speak with him on May 4th.
8
On cross-examination, the State argued that in testifying about his
cooperation with law enforcement and denial of cursing the officer, Cook opened
the door to impeachment with his criminal history. The trial court overruled
Cook’s objections and the State inquired about certain facts of Cook’s 2002 felony
DWI conviction (i.e., that Cook was unable to perform the field sobriety tests
because he was “too combative with the officers”). The State also asked if he had
been convicted of DWI in 1992 and 1998, but made no inquiry into the facts of
either case. Finally, the State asked about the facts of Cook’s 2008 criminal
mischief conviction (i.e., Cook broke a window in someone’s home and fled).
Cook explained that it was an accident. On redirect examination, Cook testified
that Parra was the one harassing him and his brother by fabricating all of these
allegations against them.
Cook’s mother testified, too, and established herself as the owner of the
house in which Cook and his brother lived. She testified that both of her sons were
currently in jail and that she was afraid that she would be arrested next so she had
surveillance cameras installed on the house’s exterior in September 2011. She
also acknowledged that Cook had a problem with alcohol, and that she had
supported him through his prior criminal convictions for DWI and criminal
mischief.
Cook and his mother were the only defense witnesses.
9
Evidence of Extraneous Bad Acts
Cook’s first point of error contends that the trial court abused its discretion
by admitting testimony regarding the February 2010, March 27, 2010, and May 4,
2010, incidents and Parra’s encounter with Cook’s brother (i.e., that Cook sent his
brother over to Parra’s house to threaten to harm her if she did not drop the charges
against him), because such evidence has no relevance other than to prove character
conformity and is therefore barred by Rule 404. Cook further contends that even if
the evidence has noncharacter-conformity relevance under Rule 404, the admission
of such evidence is nevertheless barred by Rule 403.
Cook further contends that even if these extraneous bad acts are not barred
by Rules 403 or 404, the trial court still erred by allowing the State to present this
evidence prematurely (i.e., prior to any need for rebuttal or cross-examination by
defense counsel).
A. Preservation of Error
To preserve error in the admission of extraneous bad acts, the defendant
must first timely object that the evidence is inadmissible under Rule 404(b) of the
Texas Rules of Evidence. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim.
App. 1990) (en banc) (op. on reh’g). During a pretrial conference, the State
indicated its desire to offer evidence of two extraneous bad acts during Parra’s
testimony, specifically, the incidents on March 27, 2010 and May 4, 2010. The
10
trial court overruled Cook’s objections and held the evidence was admissible. An
objection to the admission of testimony regarding the extraneous bad act of
February 2010, was never lodged.
Accordingly, Cook’s complaints as to the March 27th and May 4th incidents
are preserved, but not the February 2010 Super Bowl party incident. See
Montgomery, 810 S.W.2d at 387.
Cook also challenges Parra’s testimony that Cook’s brother was sent to
threaten her into dropping the charges. Because the trial court sustained Cook’s
objections to the portions of Parra’s testimony specifically addressing this issue
(i.e., “Was this after [Cook] sent him over to harass you?,” “Was this after [Cook]
sent him over to make you drop charges?,” “That I needed to drop the charges
against his brother . . . .”), we construe this argument as a challenge to admission
of the other portions of Parra’s testimony regarding the brother on the basis of
Rules 404 and 403 (e.g., that Cook’s brother had a violent history that involved
drugs, prostitution, and assaults on women).
Parra never mentioned Cook’s brother or her encounter with him until asked
during cross-examination (i.e., asking Parra if she called 9-1-1 and had Cook’s
brother arrested). When the State followed up on this line of questioning during
redirect examination, Cook objected to some of the testimony but on different
grounds (e.g., lack of personal knowledge, calls for speculation). Cook never
11
objected to the admission of this testimony under Rules 403 or 404 (i.e., that the
evidence was being offered to prove character in conformity or that it was more
prejudicial than probative).
Accordingly, we hold that Cook failed to preserve his complaint as to the
admission of testimony regarding Parra’s encounter with Cook’s brother based on
Rules 403 and 404. See Montgomery, 810 S.W.2d at 387.
Having determined that Cook failed to preserve his complaints as to the
admission of testimony regarding the February 2010 Super Bowl incident and
Parra’s encounter with Cook’s brother, we will now evaluate the trial court’s
decision to admit testimony regarding the March 27th and May 4th incidents.
B. Standard of Review
We review the trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.
App. 2010) (citing Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996));
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial court
does not abuse its discretion unless its decision to admit or exclude the evidence
lies outside the zone of reasonable disagreement. See Martinez, 327 S.W.3d at
736; De La Paz, 279 S.W.3d at 343–44. To be admissible, extraneous bad act or
offense evidence must pass the two-prong test imposed by Rules of Evidence
404(b) and 403: (1) the extraneous offense or bad act evidence must be relevant to
12
a fact of consequence in the case apart from its tendency to prove conduct in
conformity with character; and (2) the probative value of the evidence must not be
substantially outweighed by unfair prejudice. Martin v. State, 173 S.W.3d 463,
467 (Tex. Crim. App. 2005); see also De La Paz, 279 S.W.3d at 344. If the trial
court's evidentiary ruling is correct on any theory of law applicable to that ruling, it
will be sustained, even when the court’s underlying reason for the ruling is wrong.
De La Paz, 279 S.W.3d at 343–44; see also Osbourn v. State, 92 S.W.3d 531, 538
(Tex. Crim. App. 2002) (if there is evidence supporting trial court’s decision to
admit evidence, there is no abuse and appellate court must defer to that decision,
even if trial court gave wrong reason for decision).
C. Rule of Evidence 404
Evidence of other crimes, wrongs, or acts is not admissible to prove
character conformity, but may be admissible for other purposes, “such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” TEX. R. EVID. 404. Rule 404(b) is a rule of inclusion rather
than exclusion and the exceptions listed under Rule 404(b) are neither mutually
exclusive nor collectively exhaustive. De La Paz, 279 S.W.3d at 343.
Extraneous bad act or offense evidence may also be admissible as contextual
evidence. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). There are
two types of contextual evidence: (1) evidence of another offense connected with
13
the primary offense—“same transaction contextual evidence”; and (2) general
background evidence—“background contextual evidence.” Mayes v. State, 816
S.W.2d 79, 86–87 (Tex. Crim. App. 1991). Background contextual evidence helps
the jury “fill in the background of the narrative and give it interest, color, and
lifelikeness.” Id. at 87. “In other words, the evidence must be necessary to the
jury’s understanding of the instant offense because the circumstances of the
offense would make little or no sense without the admission of the background
contextual evidence.” Smith v. State, 200 S.W.3d 644, 649 (Tex. App.—Houston
[1st Dist.] 2001, pet. ref’d).
Extraneous bad act or offense evidence may also be admitted to prove
motive under Rule 404(b). See Crane v. State, 786 S.W.2d 338, 349–50 (Tex.
Crim. App. 1990); see also Keen v. State, 85 S.W.3d 405, 413–14 (Tex. App.—
Tyler 2002, pet. ref’d) (holding trial court could have reasonably decided that
extraneous offense evidence had non-character conformity relevance where it
rebutted defendant’s defensive theory that he was framed and showed his motive to
commit offense). Although not an essential element of a criminal offense,
evidence of motive is “always proper and relevant” to assist in proving the
defendant committed the charged offense. Sypniewski v. State, 799 S.W.2d 432,
434 (Tex. App.—Texarkana 1990, pet. ref’d) (holding extraneous offense or bad
act evidence admissible to prove motive, even though motive was uncontested);
14
see also Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991) (evidence of
motive admissible if relevant as circumstance tending to prove commission of
offense and holding trial court did not abuse its discretion by admitting evidence of
extraneous offense for purposes of proving motive).
Although the State argued that the March 27 and May 4 extraneous bad acts
were admissible to prove Cook’s intent to commit an assault and Parra’s “state of
mind,” we can affirm the trial court’s evidentiary ruling if it is correct on any
theory of law applicable to the case. See De La Paz, 279 S.W.3d at 343–44. Here,
the testimony regarding the March 27th and May 4th incidents is admissible under
Rule 404(b) because it places the charged offenses in context and serves to make
the “fact or consequence” that Cook committed the charged offenses more
probable by providing a possible motive.
Without evidence of the extraneous bad acts in this case, the jury would
have been left with an incomplete (and confusing) picture of two neighbors who
lived across the street from one another for years, without incident, until—
apparently out of the blue—Cook decided to break into Parra’s home and assault
her on two separate occasions within a little less than a month. See Smith, 200
S.W.3d at 649. These extraneous bad acts show the increasingly violent
interactions of Cook with Parra over the span of a few short months and put the
relationship between the two neighbors into context. It also suggests a possible
15
motive for the charged offenses because it raises the inference that Cook was
obsessed with Parra and broke into her home and assaulted her on April 24th and
May 14th as part of his continuing harassment and intimidation.4 Thus, at a
minimum, it is at least subject to reasonable disagreement whether the evidence of
Cook’s prior bad acts with regard to Parra made his commission of the charged
offenses more probable by providing a possible motive.
Accordingly, we conclude that the trial court did not abuse its discretion in
admitting testimony regarding the March 27th and May 4th incidents.
D. Rule of Evidence 403
Having determined that the evidence regarding the March 27th and May 4th
incidents was permissible under Rule 404, we must now determine whether the
probative value of such evidence is substantially outweighed by the danger of
unfair prejudice, pursuant to Rule 403.
Although admissible under Rule 404(b), “evidence may be excluded 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. A
4
In fact, Parra testified that when Cook burglarized her home on April 24th he told
her, “I told you, stupid bitch. I’m going to get you one way or the other” and that
“if [she] wasn’t his, [she] wasn’t nobodys.” Parra further testified that Cook told
her during the May 4th incident that she “wasn’t going to get away easy” and that
“he was still going to be harassing [her] no matter what.”
16
Rule 403 analysis involves a balance of: “(1) the inherent probative force of the
proffered item of evidence along with (2) the proponent’s need for that evidence
against (3) any tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a jury that
has not been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate amount of
time or merely repeat evidence already admitted.” Gigliobianco v. State, 210
S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
Rule 403 favors admissibility, and “the presumption is that relevant evidence
will be more probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372,
389 (Tex. Crim. App. 1991); see also De La Paz, 279 S.W.3d at 343. As with
Rule 404, a trial court does not abuse its discretion when it admits or excludes
evidence pursuant to Rule 403 so long as its decision is within the zone of
reasonable disagreement. See De La Paz, 279 S.W.3d at 343–44.
Here, Cook first contends that because the trial court (1) failed to address his
Rule 403 argument on the record and (2) did not make any findings of fact or
conclusions of law, the trial court failed to conduct the Rule 403 balancing test.
Cook’s argument is without merit. A trial court need not conduct a Rule 403
balancing test on the record; once the rule is invoked, appellate courts presume that
17
the trial court conducted the test, absent an express refusal to do so. See Williams
v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (appellate courts presume
trial court engaged in required balancing test once Rule 403 is invoked, and trial
court’s failure to conduct balancing test on record does not imply otherwise); see
also Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (“Although
appellant asserts that the trial court did not perform the balancing test, the trial
court did not explicitly refuse to do the test, it simply overruled appellant’s Rule
403 objections. We find nothing in the record to indicate that the trial court did not
perform a balancing test, albeit a cursory one.”) Nothing in this record indicates
that the trial court refused to perform the Rule 403 balancing test. Moreover, “the
trial court implicitly makes findings of fact and conclusions of law” when it makes
an admissibility ruling. Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App.
1996). Cook requested no oral or written findings and conclusions of the court and
the court is not required to do so sua sponte. See id.
Cook also contends that had the trial court conducted a proper Rule 403
balancing test, the evidence would have been excluded because the probative value
of the extraneous bad acts was substantially outweighed by the danger of unfair
prejudice. TEX. R. EVID. 403. Again, we disagree.
With respect to the first two Gigliobianco factors, Cook posits that the
evidence has little, if any, probative value because it was not relevant for any
18
purpose other than to establish character-conforming behavior, and it was
unneeded by the State to counterbalance any defense theories advanced. The
“inherent probative force” of the extraneous bad act measures “how strongly it
serves to make more or less probable the existence of a fact of consequence to the
litigation.” Gigliobianco, 210 S.W.3d at 641. Because it places the charged
offenses in context and serves to make the “fact or consequence” that Cook
committed the offenses more probable by providing a possible motive (i.e.,
harassment or intimidation), the evidence of extraneous bad acts is relevant. See
Gosch, 829 S.W.2d at 783 (stating that although motive is not element of offense,
State is entitled to prove motive “if it is relevant as a circumstance tending to prove
the commission of the offense.”)
With regard to the third factor, Cook contends that the extraneous bad acts
were prejudicial, offered by the State to “excite emotions against [Cook by]
portraying him as a violent and threatening criminal” and that the evidence of these
bad acts “generated an emotional response from the jury.” First, most evidence is
prejudicial to one or the other party; the question presented by Rule 403 is whether
the evidence is unfairly prejudicial. See Casey v. State, 215 S.W.3d 870, 883 (Tex.
Crim. App. 2007) (“Virtually all evidence that a party offers will be prejudicial to
the opponent’s case, or the party would not offer it. . . . Evidence is unfairly
prejudicial only when it tends to have some adverse effect upon a defendant
19
beyond tending to prove the fact or issue that justifies its admission into
evidence.”); see also Gigliobianco, 210 S.W.3d at 641 (stating “unfair prejudice”
refers to a tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one).
Second, the extraneous acts or offenses in this case (i.e., criminal mischief,
assault, and public intoxication) are not so inherently inflammatory that they tend
to elicit an emotional response and impress a jury in some “irrational yet indelible
way.” Cf. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) (“[A]n
extraneous sexual offense will always carry emotional weight and the danger of
impressing the jury in an irrational and indelible way.”); Santellan, 939 S.W.2d at
169 (finding offense of abuse of corpse could potentially affect the jury in
emotional way); Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)
(holding “sexually related misconduct and misconduct involving children are
inherently inflammatory.”).
Finally, we also observe that the jury was provided with an appropriate
limiting instruction in the jury charge which “reduced the risk the jury might
misuse the evidence during jury deliberations.” Jones v. State, 944 S.W.2d 642,
654 (Tex. Crim. App. 1996). The record does not suggest that the jury disregarded
20
the instruction during its deliberations.5 See Kirsch v. State, 306 S.W.3d 738, 748
(Tex. Crim. App. 2010) (appellate courts presume juries follow trial court’s
instructions, unless otherwise established by the record). Because the extraneous
bad acts in this case are not the type that would normally generate an emotional
response from a jury and there is nothing in the record to suggest that the jury
disregarded the trial court’s limiting instructions, the third factor weighs in favor of
admission.
The fourth and sixth factors concern the tendency of the evidence to confuse
or distract the jury from the main issues and the amount of time consumed by the
presentation of the extraneous-offense evidence. See Gigliobianco, 210 S.W.3d at
641 (“Evidence that consumes an inordinate amount of time to present or answer,
for example, might tend to confuse or distract the jury from the main issues.”).
The State presented six witnesses—four of whom testified about the two
extraneous bad acts. Three of the State’s witnesses testified about the March 27
incident involving the broken bottles (i.e., Parra, the responding officer, and the
lead investigator on Cook’s burglary cases who questioned Cook). Three
witnesses also testified about the assault on Parra’s brother on May 4, 2010 (i.e.,
5
Cook argues that the trial court did not provide a limiting instruction to the jury.
This is incorrect. Although the trial court denied his request for a
contemporaneous limiting instruction, it nevertheless, included a limiting
instruction in the jury charge. Notably, Cook does not argue that the trial court
erred in denying a contemporaneous limiting instruction or provide any case law
on this issue.
21
Parra, the responding officer, and the lead investigator on Cook’s burglary cases).
The two responding officers were called for the sole purpose of testifying about the
extraneous bad acts. Given the significant time devoted to presentation of the
extraneous bad act evidence, the fourth and sixth factors weigh against admission.
The fifth factor concerns “a tendency of an item of evidence to be given
undue weight by the jury on other than emotional grounds. For example,
‘scientific’ evidence might mislead a jury that is not properly equipped to judge the
probative force of the evidence.” Id. (citation omitted). Testimony concerning the
two extraneous bad acts was not prone to this tendency, as it concerned matters
easily comprehensible by laypeople. Thus, the fifth factor weighs in favor of
admission.
In sum, as a few factors weighed against admitting the extraneous bad act
testimony, and a few weighed in favor of admission, bearing in mind that Rule 403
“envisions exclusion of evidence only when there is a ‘clear disparity’ between the
degree of prejudice of the offered evidence and its probative value,” the trial court
could have reasonably concluded that this testimony was admissible under Rule
403. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that
the trial court abused its discretion. See Hammer, 296 S.W.3d at 568.
22
E. Premature Presentation of Extraneous Bad Acts
Cook argues that even if these extraneous bad acts are not barred by Rules
403 or 404, the trial court, nevertheless, erred by allowing the State to present this
evidence prematurely (i.e., prior to any need for rebuttal or cross-examination by
defense counsel), citing to Jones v. State, 587 S.W.2d 115, 120 (Tex. Crim. App.
1979). Although Jones held that the premature admission of the extraneous
evidence to be error, it, nonetheless, determined that the error was rendered
harmless because the defendant raised a defensive theory which placed intent at
issue (alibi), which the prematurely admitted evidence would have been admissible
to rebut. Jones, 587 S.W.2d at 120; see also Rubio v. State, 607 S.W.2d 498, 502
(Tex. Crim. App. 1980) (citing Jones, 587 S.W.2d at 120) (holding premature
admission of extraneous offense evidence to prove intent in rape case harmless
because defense subsequently raised consent defense which placed intent at issue);
Dickson v. State, 246 S.W.3d 733, 744 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d) (holding premature admission of extraneous offense evidence to prove
identity harmless because defendant subsequently raised alibi defense, which
placed identity at issue). Cook’s subsequent denials of harassing Parra or being in
her home uninvited places motive at issue.
We overrule Cook’s first point of error.
23
Evidence of Prior Convictions
Cook’s second point of error contends that, pursuant to Rule of Evidence
609, the trial court erred by allowing testimony of his three prior misdemeanor
convictions into evidence during the guilt-innocence phase of trial (i.e., DWI
(1993), DWI (1998), and criminal mischief (2008)) and by allowing the State to
inquire about the circumstances surrounding his 2002 felony DWI conviction. We
need not decide whether the admission of this evidence was error, however,
because we conclude that the error in admitting it, if any, would not warrant
reversal.
A. Standard of Review
The violation of an evidentiary rule that results in the erroneous admission
of evidence constitutes non-constitutional error. See TEX. R. APP. P. 44.2(b); see
also Geuder v. State, 142 S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d) (holding that trial court’s error in admitting prior convictions
under Rule 609 is non-constitutional error); Lopez v. State, 990 S.W.2d 770, 777
(Tex. App.—Austin 1999, no pet.) (same). Non-constitutional error must be
disregarded unless the error affects the defendant’s substantial rights. See TEX. R.
APP. P. 44.2(b). A substantial right is affected when an error has a substantial and
injurious effect or influence in determining a jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997); see also Solomon v. State, 49 S.W.3d
24
356, 365 (Tex. Crim. App. 2001) (stating that such error is harmless if, after
reviewing entire record, reviewing court has “fair assurance that the error did not
influence the jury, or had but a slight effect”). Accordingly, a criminal conviction
should not be overturned based upon non-constitutional error unless the reviewing
court has “grave doubt” that the result of the trial was free from the substantial
effect or influence of that error. See Burnett v. State, 88 S.W.3d 633, 637–38 (Tex.
Crim. App. 2002). “Grave doubt” means that “in the judge’s mind, the matter is so
evenly balanced that he feels himself in virtual equipoise as to the harmlessness of
the error.” Burnett, 88 S.W.3d at 637–38.
In assessing harm resulting from a non-constitutional error, we examine the
entire record and “calculate, as much as possible, the probable impact of the error
upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim.
App. 2010). We consider, among other relevant factors, the testimony or physical
evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, and the character of the alleged error and how it might be
considered in connection with other evidence in the case. Barshaw v. State, 342
S.W.3d 91, 94 (Tex. Crim. App. 2011). We may also consider, inter alia, the
parties’ theories of the case, closing arguments, and whether the State emphasized
the error. See id.
25
B. Analysis
In the present case, direct evidence in the record supports the verdicts
against Cook: Parra’s testimony regarding the charged offenses, the corroborating
testimony of the responding officer and of the lead investigator, and photographs
documenting the damage to Parra’s living room on May 14, 2010. 6
The State’s theory of the case, as illustrated by its closing argument, was:
that Cook was a bully with a drinking problem, who was obsessed with Parra, who
engaged in a pattern of increasingly violent, dangerous, and harassing behavior
towards Parra beginning February 2010 at the Super Bowl party, and ending May
14, 2010, with him threatening her with a knife in her own living room. Although
this theory relied heavily upon the extraneous bad acts that began in 2010, 7
because they were temporally ill-suited, the State did not rely upon the 1993, 1998,
2002, and 2008 convictions. In fact, the State’s brief inquiry into these matters
totaled less than six pages of testimony. 8
Nor did the State specifically mention Cook’s misdemeanor DWI
convictions, criminal mischief convictions, or the facts surrounding his felony
DWI conviction (i.e., he was “too combative with the officers” to perform the field
6
Cook makes no challenge to the sufficiency of the evidence supporting either
conviction.
7
Those which Cook preserved for appellate review but we hold to be admissible.
8
The State also briefly inquired about these prior convictions during Cook’s
mother’s cross-examination.
26
sobriety tests) during closing arguments. Although the State’s closing focused in
part on issues related to these convictions (i.e., Cook’s drinking and lack of
cooperation with or respect for law enforcement), given that Cook’s drinking and
belligerence towards law enforcement was already before the jury, the probable
impact of this evidence was slight. Indeed, Cook himself testified on direct
examination as to a prior arrest, a public intoxication charge, and a felony DWI
conviction. The jury could have reasonably inferred that Cook had other prior
misdemeanor DWI convictions based upon his own testimony. See Lopez, 990
S.W.2d at 778 (admissible felony DWI conviction carries inference that there had
been previous misdemeanor DWI convictions regardless of remoteness); see also
Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003) (two prior
convictions for DWI are elements of offense of felony DWI).
The jury charge contained an instruction limiting its consideration of his
prior convictions to whatever measure of credibility they cared to ascribe to his
testimony, and instructing the jury not to consider “the same for any other
purpose.” See Lopez, 990 S.W.2d at 779 (concluding that error in admission of
evidence of prior misdemeanor convictions for impeachment purposes was
harmless, due in part to similar limiting instruction in jury charge). We presume
that the jury obeyed the trial court’s instructions and this evidence played no role
27
in the determination of guilt. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.
Crim. App. 2003).
Although Cook’s prior misdemeanor convictions and the facts surrounding
his felony DWI conviction may have had some slight effect on the jury’s
determination, after considering the record as a whole, we cannot say that the
admission of this evidence had a substantial and injurious effect or influence in
determining the jury’s verdict. Accordingly, assuming—without deciding—that
the admission of this evidence was erroneous, we hold that any such error was
harmless. See Solomon, 49 S.W.3d at 365 (stating that non-constitutional error is
harmless if, after reviewing entire record, reviewing court has “fair assurance that
the error did not influence the jury, or had but a slight effect”).
We overrule Cook’s second point of error.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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