NO. 07-09-00391-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 15, 2010
ANTHONY C. PARSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-423,019; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Anthony C. Parson, was convicted of attempted 1 burglary of a
habitation with intent to commit murder or aggravated assault. 2 The indictment included
punishment enhancment allegations of two prior felony convictions. 3 At the punishment
hearing, appellant pleaded true to the enhancement allegations in the indictment and
the jury assessed appellant’s punishment at confinement in the Institutional Division of
the Texas Department of Criminal Justice for 50 years. Appellant subsequently filed
1
See TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2003).
2
See id. § 30.02(a)(1) (Vernon 2003).
3
See id. § 12.42(d) (Vernon. Supp. 2010), § 30.02(d) (Vernon 2003).
this appeal contending that the evidence was legally insufficient to support the
conviction and that the trial court had committed reversible error in allowing the State to
introduce evidence of an extraneous offense. We will affirm the conviction.
Factual and Procedural Background
Appellant and Kathleen McCullough, the victim, had previously had a dating
relationship. Appellant and McCullough had broken up before the events of October 10,
2008. Earlier in the day on October 10, before the events that resulted in appellant’s
conviction, McCullough was doing her laundry at a laundromat when appellant came in
and began yelling at McCullough. According to McCullough’s testimony, appellant
continued walking toward her and threatening her. McCullough stated she was backing
away from appellant when he grabbed her keys. He then left the laundromat in the
truck she had borrowed from her brother. McCullough called a relative who came to the
laundromat and took her back to her apartment. Upon arriving at her apartment,
McCullough found the front door unlocked. While McCullough was trying to determine if
it was safe to go into her apartment, appellant drove up in the truck. Appellant again
began shouting at McCullough and was threatening her. After a short time, appellant
left the apartment complex. McCullough eventually went inside her apartment.
A few hours later (the record is not clear as to exactly how much time passed)
appellant again returned to the apartment complex. Appellant went to McCullough’s
apartment door and tried to gain entry. Upon finding the door locked he began to beat
and kick on the door and shout threats at McCullough. McCullough became afraid for
her safety and called 911. While talking to the 911 operator, McCullough heard a
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window break, and she retreated to the closet. At some point, McCullough heard more
windows being broken and specifically heard appellant say, “Bitch, I’m going to kill you.”
The police arrived in response to the 911 call and found appellant outside the
apartment. Appellant was detained and placed in the back of Officer Travis Denson’s
police car. When appellant was placed in the rear seat of the police car, Denson
activated the video recording device and placed the camera so as to record appellant.
A copy of the video was played for the jury. In the video, appellant continued to curse
and threaten McCullough. Upon going back to the door of the apartment, Denson
observed that the couch had been pulled in front of the door and, upon entry, observed
the broken windows.
Denson then made the decision to arrest appellant and transport him to the City
of Lubbock holding facility. During transportation to the city holding facility, appellant
continued to threaten to kill McCullough. Upon arrival at the city facility, appellant got
into a fight with two other inmates. This fight was the subject matter of the extraneous
offense of assault that the trial court allowed into evidence before the jury. Appellant’s
trial counsel objected to the introduction of the extraneous offense. However, the trial
court overruled the objection and allowed the testimony before the jury.
The jury subsequently convicted appellant as charged in the indictment and
sentenced him to serve 50 years in the ID-TDCJ. Appellant appeals contending that the
evidence is legally insufficient to prove that appellant had the requisite intent at the time
of the attempted entry into the apartment. Additionally, appellant contends that the trial
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court abused its discretion in allowing evidence of the extraneous offense to come
before the jury. We will affirm the judgment of the trial court.
Legal Sufficiency of the Evidence
Appellant’s first issue contends that the evidence was legally insufficient to
sustain the judgment. Specifically, appellant challenges the legal sufficiency of the
evidence to prove the requisite intent of appellant at the time of the attempted burglary.
Standard of Review
A legal sufficiency review consists of reviewing the evidence in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004). However, the jury is the sole judge of the
weight and credibility of the evidence. Clewis v. State, 922 S.W.2d 126, 132 n.10
(Tex.Crim.App. 1996) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.
1991)). We resolve inconsistencies in the evidence in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152
S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same
for both direct and circumstantial evidence. Id.
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Analysis
In order to convict for the offense of attempted burglary of a habitation with intent
to commit murder or aggravated assault, the State must prove that appellant attempted
to enter McCullough’s habitation without her effective consent with the intent to commit
the offense of murder or aggravated assault. There is no argument from appellant
regarding the elements of attempt, consent, or habitation. Appellant specifically argues
that there is legally insufficient evidence of his intent to commit murder or aggravated
assault. Accordingly, our analysis will be confined to that area of the evidence.
When considering the question of intent to commit the act charged, we must first
realize that a person’s intent is within his own mind. See Norwood v. State, 135
Tex.Crim. 406, 120 S.W.2d 806, 809 (1938). Next, in an effort to ascertain intent, we
may look to the outward expression of that intent through the words, acts, and conduct
of the individual in question. Id. Finally, it is from all of these circumstances that we
determine his intent. See Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App. 1998)
(citing Gray v. State, 55 Tex.Crim. 90, 114 S.W.635, 645-46 (1908)).
When these considerations are applied to the facts of this case, we find that the
record reveals: 1) appellant accosted McCullough on two occasions on the day in
question; 2) each time appellant approached McCullough, he did so in a threatening
manner stating it was his intent to harm or kill her; 3) appellant was detained outside of
McCullough’s apartment while shouting threats; 4) the windows had been broken out of
McCullough’s apartment, and entry had been attempted by kicking the door in; 5)
McCullough recognized appellant as the one attempting to get in the apartment; 6) after
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appellant’s arrest, he continued to make threats to kill McCullough. In short, from the
observation of appellant’s conduct and speech, a rational jury could have concluded
beyond a reasonable doubt that appellant intended to kill or seriously injure
McCullough. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Therefore, the
evidence was legally sufficient. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at
620. Appellant’s first issue is overruled.
Extraneous Offense
Appellant’s last issue deals with the trial court’s admission of extraneous offense
testimony. The trial court permitted the State’s attorney to ask Denson if appellant had
assaulted two other inmates upon arrival at the City of Lubbock holding facility.
Appellant contends that the admission of the evidence was an abuse of discretion
because such testimony was not relevant, and even if relevant, its probative value was
clearly outweighed by its prejudicial impact.
Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2009).
A trial court abuses its discretion when the decision to admit the evidence in question
lies outside the zone of reasonable disagreement. Id.
Law of Extraneous Offenses
As a legal maxim, extraneous offenses are not admissible during a criminal trial,
especially to prove the character of a defendant and that the defendant acted in
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conformity with that character trait at the time in question. See TEX. R. EVID. 404(b). 4
There are exceptions to this general prohibition. Specifically, extraneous offense
evidence is admissible if it tends to prove or disprove an element of the offense. See
De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009). This is the inquiry into
the relevance of the evidence. See Rule 404(b); De La Paz, 279 S.W.3d at 343. The
proponent for admissibility of the extraneous offense evidence must carry the burden of
establishing the admissibility of such evidence. See Montgomery v. State, 810 S.W.2d
372, 387 (Tex.Crim.App. 1991) (op. on reh’g). Once the relevance is established, the
evidence may still be excluded if its probative value is substantially outweighed by its
unfair prejudicial effect. Rule 403; Santellan v. State, 939 S.W.2d 155, 169
(Tex.Crim.App. 1997).
If a rule 403 objection is made, the trial judge must then conduct a balancing test
to ascertain whether or not the probative value is substantially outweighed by the
prejudicial impact of the proffered extraneous offense. Id. In conducting this balancing
test the trial court considers the following: 1) how compellingly the extraneous offense
evidence serves to make the fact of consequence more or less probable; 2) the
potential for this evidence to impress the jury in some irrational but indelible way; 3) the
time required to develop the evidence; and 4) the force of the proponent’s need for the
evidence. Id.
4
Further reference to the Texas Rules of Evidence will be by reference to “Rule
__” or “rule ___.”
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Analysis
Our first inquiry is whether or not the proffered extraneous evidence is relevant.
Rule 404(b); De La Paz, 279 S.W.3d at 343. A review of the record reflects that the
State had a substantial amount of evidence that bore upon the intent of appellant to
murder or assault McCullough at the time he attempted the unauthorized entry into the
apartment. Further, the quality of the evidence in demonstrating the intent of appellant
was much more direct and persuasive than evidence of assaults involving strangers at
some time removed from the events that led to appellant’s arrest. A further review of
the closing arguments reveals that even the proponent of the evidence must have
thought that it was not particularly important, for it is barely even mentioned during
those arguments. What was the relevance of this evidence, especially in light of the
entire record? Our review yields the conclusion that this extraneous offense evidence
was only minimally relevant. For purposes of this opinion, we will treat the evidence as
relevant, as it did have some propensity to prove the element of intent. See De La Paz,
279 S.W.3d at 343.
Therefore, we now turn to the balancing test pursuant to rule 403. Santellan, 939
S.W.2d at 169. Our first inquiry into the strength of the evidence results in a
determination that the evidence in question, a subsequent assault of other inmates at a
time after the offense being considered, is only minimally compelling. See id. In
addition, we find the force of the State’s need for this evidence to be barely above
negligible. See id. The presentation of the evidence required only a minimal amount of
time, and, to that extent, did not detract the jury from the real issues at hand. See id.
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However, when you review the entire record, the most that can be said for this
extraneous offense evidence is that it proved appellant’s propensity to be aggressive
and perpetrate assaults. Thus, it did have the potential for impressing the jury in an
irrational but indelible way. See id. As such, this evidence should not have been
placed before the jury and to do so was error. Rule 403.
However, our finding that the admission of the evidence was error does not end
the inquiry. Rather, we must continue the inquiry to determine whether the admission
had an effect on appellant’s substantial rights by a Rule 44.2(b) harm analysis for non-
constitutional errors. See TEX. R. APP. P. 44.2(b); 5 Haley v. State, 173 S.W.3d 510, 518
(Tex.Crim.App. 2005). A substantial right is implicated when the error had a substantial
and injurious effect on the jury’s verdict. Haley, 173 S.W.3d at 518. In order to
ascertain the effect the error may have had on the jury’s verdict, we are directed to
consider everything in the record, including all of the evidence received by the jury and
how the alleged error might be considered in connection with other evidence supporting
the verdict. See id.
When we apply the analysis required to the facts of this case, we find that we
have a significant amount of evidence that went to the issue of appellant’s intent.
5
Rule of Appellate Procedure 44.2 provides:
(a) Constitutional Error. If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of
appeals must reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does
not affect the substantial rights must be disregarded.
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Further, the proponent of the evidence in question mentioned the objected-to evidence
only minimally during closing arguments. A complete review of the evidence leads us to
the conclusion that the error in admitting the evidence of the assaults at the city holding
facility did not affect appellant’s substantial rights. See Rule 44.2(b). Therefore, the
error was harmless. See Haley, 173 S.W.3d at 518. Accordingly, appellant’s final issue
is overruled.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
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