Brandon Ray Smith A/K/A Brandon Smith v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NOS. 2-08-390-CR
2-08-391-CR

BRANDON RAY SMITH A/K/A APPELLANT
BRANDON SMITH

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. Introduction

Appellant Brandon Ray Smith a/k/a Brandon Smith appeals his convictions for

two counts of aggravated assault with a deadly weapon. He contends in three

issues that the evidence is legally and factually insufficient to support his convictions,

that the trial court erred by admitting evidence of an extraneous offense, and that the

trial court erred by denying his request for a limiting instruction concerning evidence

of a different extraneous offense. W e affirm.
 II. Procedural Background

A grand jury indicted Appellant for two counts of aggravated assault with a

deadly weapon. The indictments collectively alleged that Appellant intentionally or

knowingly threatened imminent bodily injury to Gary and Randolph (Randy) Osburg

and that Appellant used or exhibited a truck as a deadly weapon during the

commission of the assaults. The indictments also alleged that Appellant had a

previous felony conviction. Appellant pleaded not guilty to both counts, was tried in

October 2008, and the jury found Appellant guilty of both counts. During the

punishment phase of his trial, Appellant pleaded true to the repeat offender notice

in the indictments. The jury found the enhancement to be true and assessed

Appellant’s punishment at thirteen years’ confinement for each count; the trial court

ordered Appellant’s sentences to run concurrently. These appeals followed.

III. Factual Background

Randy Osburg testified at trial that he took his son, Gary Osburg, to a

convenience store in Tarrant County, Texas, on February 11, 2008, to buy some

cigarettes. As they were leaving the store, Randy and Gary saw Appellant and his

female companion, Banu Kurt, involved in what they believed was an altercation;

they saw Appellant hit Ms. Kurt twice in the chest with a closed fist. After the second

hit, Ms. Kurt moved backward, hit the gas pump, and fell down. Sitting in Appellant’s

truck were two children Randy believed were between three and six years old; one

of them was crying.

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 Gary further testified that, upon seeing the second hit, he got out of Randy’s

truck to help Ms. Kurt and to confront Appellant. As Gary approached Appellant,

Appellant pulled brass knuckles from his pocket and told Gary to mind his own

business. Gary and Randy started “mov[ing] around” Appellant, and although they

did not “jump on” him, Appellant ran around the building and away from them.

Randy yelled for someone to call the police, and Appellant jumped into his

truck and “acted like he was going to leave.” Randy started talking to Ms. Kurt, but

something in Ms. Kurt’s expression made Randy turn around. Randy then saw

Appellant driving straight at him. W hen Randy heard Appellant accelerate, Randy

jumped into the bed of Gary’s truck; Randy testified that he was afraid of dying or

being badly hurt. Appellant then circled the gas pump and drove straight at Gary;

Gary testified that he believed Appellant was trying to kill him, and Randy testified

that he was afraid Appellant was going to kill Gary. W hen Gary saw Appellant

driving at him, he grabbed a hammer from Randy’s truck and threw it at Appellant,

hitting the truck’s windshield. Appellant slammed on the brakes, got out of his truck

“in a complete rage,” and ran after Gary while his truck was still moving. Appellant’s

unoccupied truck rolled across the street and came to rest against a sign and a

telephone pole.

Appellant then chased Gary around the convenience store on foot. Gary

came out from the back of the convenience store and got into Randy’s truck, and

Gary and Randy drove away from the store. Appellant ran across the street to his

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truck and followed Gary and Randy. Randy testified that he drove away from the

convenience store and turned right on a street two or three blocks away. As he and

Gary approached a stop sign after turning right, Gary said, “He’s behind us. He’s

going to ram us.” Randy looked in his mirror and saw Appellant’s truck “coming at

[them] fast.”

Randy said that he accelerated and “got maybe a little bit across the street

when [Appellant] hit us.” Randy testified that he accelerated again and believed he

was driving sixty or seventy miles-per-hour when Appellant “rammed [him] two or

three more times.” Randy testified that Gary had retrieved his hammer from the

convenience store parking lot and was leaning out the truck window as they drove

to throw the hammer at Appellant “to slow him down.” Randy also testified that he

was afraid Appellant would push them into traffic at an upcoming intersection.

Randy said that he then slammed his brakes and that Appellant also slammed his

brakes, avoiding a collision. W hen traffic on the cross-street was clear, Randy

accelerated again but Appellant approached them in the outside lane. Gary said,

“He’s going to ram you,” and Randy again slammed his brakes. Randy testified that

Appellant “ended up going across our lane, trying to ram us from the side, but luckily,

he just barely missed me.” Randy said that Appellant’s truck crossed some railroad

tracks, “went into the air,” and stopped in a ditch.

Gary testified that he was scared and his adrenaline was going when they

drove away from the convenience store. Gary testified that while Randy drove, Gary

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looked out the window and saw Appellant get into his truck and follow them. Gary

said less than fifteen seconds passed before Appellant “was already up on us,”

tailgating them. Gary testified that Appellant “ended up striking” the rear of Randy’s

truck three times, jarring Randy and Gary. As Randy approached a T-intersection,

Randy turned right and Appellant followed. Gary testified that he “saw [Appellant]

coming up on us really fast and I told my dad to get over into the next lane and stop

and hit his brakes. And when he did, [Appellant] was coming at us, barely missed

us, and went into a ditch.”

Randy testified that after Appellant drove into the ditch, he and Gary drove

back to the convenience store, hoping the police had arrived by that time. The police

were there and noted damage to the bumper on Randy’s truck, but no photographs

were taken. Randy said he was somewhat able to repair the dent in the bumper by

tying it to a tree and pulling it out. The police also noted front-end damage to

Appellant’s truck, but the officer did not recall noticing any damage to the windshield.

During cross-examination, Randy acknowledged that he had joked with

someone after the altercation that he would gladly have the case dropped and all

charges dismissed if Appellant would meet Gary for a one-on-one fight. Randy also

admitted that he “forgot” to tell the jury that he also had a weapon during the

altercation—a tile cutter he had gotten from the bed of his truck.

Tricia Nyamongo W alton, the clerk from the convenience store, testified that

she saw Appellant, a woman, and two other men standing behind a white truck. She

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saw Appellant drive the white truck around the store, and she told police that

Appellant was “driving crazy,” almost ran into the building, the gas pumps, and her

car. She also told police that Appellant chased the other men with his truck.

Ms. Kurt testified for the defense that she and Appellant were not fighting but

were instead “just playing around.” She said that Appellant pushed her but that she

tripped over the gas pump. Ms. Kurt did, however, tell the police that Appellant hit

her in the face. She testified that as Randy and Gary approached Appellant, she

gathered her children, ages ten and eight, and went into the convenience store. She

said that she did not see what was thrown at Appellant’s truck but that she did see

damage to the windshield. She also testified that she did not see Appellant drive

toward anyone.

IV. Sufficiency of the Evidence

In his first point, Appellant contends that the evidence is legally and factually

insufficient to sustain his convictions for aggravated assault with a deadly weapon.

A. Alleged Waiver by Multifarious Point on Appeal

The State contends that we should summarily overrule Appellant’s first point

because it is multifarious. A multifarious issue is one that embraces more than one

specific ground. Stults v. State, 23 S.W .3d 198, 205 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d). By combining more than one contention in a single issue, an

appellant risks rejection on the ground that nothing is presented for review. Foster

v. State, 101 S.W .3d 490, 499 (Tex. App.—Houston [1st Dist.] 2002, no pet.). But

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an appellate court may address a multifarious issue that is sufficiently developed in

the brief. Id. Although Appellant’s first point addresses both legal and factual

sufficiency and challenges both venue and the evidence to support each element of

the indicted offenses, we are able to discern Appellant’s contentions on appeal.

Thus, we will not summarily overrule Appellant’s first point and will substantively

address it. See Newby v. State, 169 S.W .3d 413, 414 (Tex. App.—Texarkana 2005,

pet. ref’d) (declining to overrule point of error as multifarious “in the interest of

resolving substantive issues”).

B. Venue

Appellant contends “there is no evidence that the striking of the victims[‘] truck

took place in Tarrant County.” However, an appellate court must presume that

venue was proved unless it was challenged in the trial court or the record

affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1). Appellant does not

point us to a place in the record where he disputed venue at trial, and our review of

the record did not reflect any such objection. Further, the evidence at trial showed

that the convenience store was located in Tarrant County, that Appellant chased

Randy and Gary away from the convenience store, and that Randy and Gary

returned to the convenience store to speak with police after the chase. And our

review of the record did not reveal evidence that the chase occurred in a county

other than Tarrant County. Thus, because Appellant failed to dispute venue before

the trial court and the record does not affirmatively refute proper venue, we must

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presume that venue was proved in the trial court. See id.; Hernandez v. State, 198

S.W .3d 257, 268 (Tex. App.—San Antonio 2006, pet. ref’d) (op. on reh’g)

(presuming venue proved in trial court because appellant did not object at trial and

record did not affirmatively refute proper venue). W e overrule this portion of

Appellant’s first point.

C. The Evidence is Legally Sufficient

1. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order 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, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007). The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

guilt. Clayton, 235 S.W .3d at 778; Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim.

App. 2007).

In determining the legal sufficiency of the evidence to show an appellant’s

intent, and faced with a record that supports conflicting inferences, we “must

presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W .2d 839, 846 (Tex. Crim. App. 1991).

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 2. Applicable Law

A person commits the offense of aggravated assault if he “intentionally or

knowingly threatens another with imminent bodily injury” and “uses or exhibits a

deadly weapon during the commission of the assault.” Tex. Penal Code Ann. §§

22.01(a)(2); 22.02(a)(2) (Vernon Supp. 2009). A deadly weapon is anything that in

the manner of its use or intended use is capable of causing death or serious bodily

injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009). “It is

reasonably clear that driving an automobile constitutes the use of it and that driving

[an automobile] in a manner capable of causing death or serious bodily injury

constitutes [the automobile] a deadly weapon.” Tyra v. State, 897 S.W .2d 796, 798

(Tex. Crim. App. 1995).

3. Analysis

As a general rule, the State must, on proper request, elect the instance on

which it will rely for conviction when the State’s evidence shows multiple instances

of conduct conforming to a single indictment allegation. Martinez v. State, 225

S.W .3d 550, 555 (Tex. Crim. App. 2007). Here, following Appellant’s request, the

State elected to rely on Appellant’s conduct after he followed Randy and Gary from

the convenience store to prove his commission of aggravated assault. W ith the

State’s election in mind, Appellant contends there is no evidence that he

“intentionally threatened the victims with imminent bodily injury by chasing them in

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the truck [or] that he intentionally struck their truck during the chase or that anyone

was placed in danger with the vehicle.” 1 W e disagree.

The record contains legally sufficient evidence that Appellant intentionally or

knowingly threatened Randy and Gary with imminent bodily injury. See Tex. Penal

Code Ann. § 22.01(a)(2). Randy testified that he was afraid of being killed or badly

hurt by Appellant before they left the convenience store and that Appellant chased

them in his truck after they left. Randy said that he drove away from the

convenience store and turned right on a street two or three blocks away, that he saw

Appellant’s truck “coming at [them] fast,” that he made several attempts to evade

Appellant but that Appellant hit them with his truck two or three times, and that he

drove sixty or seventy miles-per-hour to escape Appellant but that Appellant

continued his attempts to ram their truck. The chase ended only after Appellant tried

to ram them from the side but barely missed and drove into a ditch.

Gary testified that he believed Appellant was trying to kill him in the

convenience store parking lot. He said that less than fifteen seconds passed before

Appellant caught them and struck them with his truck three times, jarring them. Gary

testified that Appellant followed them after Randy turned right and was “coming up

on [them] really fast.” Gary said that after Randy hit the brakes, Appellant “barely

missed” them and drove into a ditch. This evidence is legally sufficient to support

1
 Appellant’s argument focuses on whether he took intentional action, but
we note that the statute provides that it is an offense to “intentionally or knowingly
threaten[] another with imminent bodily injury.” Tex. Penal Code Ann. § 22.01(a)(2).

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the jury’s finding that Appellant intentionally or knowingly threatened Randy and

Gary with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2);

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778; see also

Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3 (Tex.

App.—Houston [1st Dist.] Apr. 8, 2010, no pet. h.) (mem. op., not designated for

publication) (holding evidence legally and factually sufficient to sustain conviction

for aggravated assault on a public servant and stating that “[t]he jury reasonably

could have inferred that Dominique’s conduct was intentional based on his repeated

attempts to run down the police officers who stood in his way”).

The evidence is also legally sufficient to support the jury’s deadly weapon

findings. The definition of a deadly weapon under section 1.07(a)(17)(B) includes

“anything that in the manner of its use or intended use is capable of causing death

or serious bodily injury.” See Tex. Penal Code Ann. § 1.07(a)(17)(B) (emphasis

added). A car can be a deadly weapon. Butler v. State, 928 S.W .2d 286, 288 (Tex.

App.—Fort W orth 1996, pet. ref’d).

Randy and Gary collectively testified that Appellant rammed them with his

vehicle two or three times, and Randy testified that Appellant caught them even

after he drove sixty or seventy miles-per-hour while fleeing from Appellant.

Although neither Randy nor Gary testified that they were physically injured by

Appellant’s conduct, there is no requirement that the deadly weapon actually cause

death or serious bodily injury before the jury can affirmatively answer the deadly

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weapon question. See Tex. Penal Code Ann. § 1.07(a)(17)(B); see also McCain v.

State, 22 S.W .3d 497, 503 (Tex. Crim. App. 2000) (holding section 1.07(a)(17)(B)’s

“plain language does not require that the actor actually intend death or serious bodily

injury; an object is a deadly weapon if the actor intends a use of the object in which

it would be capable of causing death or serious bodily injury”). The evidence is

legally sufficient to support the jury’s finding that Appellant used or exhibited a

deadly weapon, his vehicle, while assaulting Randy and Gary.

Viewing the evidence in a light most favorable to the prosecution, a rational

jury could have determined beyond a reasonable doubt that Appellant

used or exhibited a deadly weapon, his vehicle, while intentionally or knowingly

threatening Randy and Gary with imminent bodily injury. See Tex. Penal Code

Ann. §§ 22.01(a)(2), 22.02(a)(2); see also Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Clayton, 235 S.W.3d at 778. We hold the evidence was legally sufficient to

support the jury’s verdicts, and we overrule the portion of Appellant’s first point that

challenges the legal sufficiency of the evidence.

C. The Evidence is Factually Sufficient

1. Standard of Review

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to overturn [the]

conviction.” Watson v. State, 204 S.W .3d 404, 417 (Tex. Crim. App. 2006). W e

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cannot conclude that a conviction is clearly wrong or manifestly unjust simply

because we would have decided differently than the jury or because we disagree

with the jury’s resolution of a conflict in the evidence. Id. W e may not simply

substitute our judgment for the factfinder’s. Johnson v. State, 23 S.W .3d 1, 12 (Tex.

Crim. App. 2000); Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim. App. 1997).

Unless the record clearly reveals that a different result is appropriate, we must defer

to the jury’s determination of the weight to be given contradictory testimonial

evidence because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W .3d at 8. Our deference in this regard safeguards the

defendant’s right to a trial by jury. Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim.

App. 2008).

An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint on

appeal. Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003). Moreover, an

opinion reversing and remanding on factual insufficiency grounds must detail all the

evidence and clearly state why the finding in question is factually insufficient and

under which ground. Goodman v. State, 66 S.W .3d 283, 287 (Tex. Crim. App.

2001); see Steadman v. State, 280 S.W .3d 242, 247 & n.15 (Tex. Crim. App. 2009).

2. Factually Sufficient Evidence

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 Reviewing all the evidence in a neutral light, we recall that there were no

photographs or other physical evidence showing the extent of damage to Randy’s

truck, that there was no direct testimony that Appellant intentionally or knowingly hit

the rear of Randy’s truck, and that neither Randy nor Gary testified that they were

in fear of or in danger of imminent bodily injury during the chase itself. W e also

recall that Randy and Gary confronted Appellant with weapons in the convenience

store parking lot. However, Randy and a police officer both testified that there was

physical damage to both Randy’s and Appellant’s trucks. Further, Randy and Gary

both testified that Appellant repeatedly rammed or attempted to ram his truck into

their truck during the chase, and Randy testified he drove sixty to seventy miles-per-

hour to escape Appellant. In addition, Randy and Gary both expressly testified that

they were in fear of death or serious bodily injury in the convenience store parking

lot and that Appellant’s aggression toward them continued as he chased them away

from the convenience store. Moreover, Appellant chased Randy and Gary, as the

aggressor, at high speed after Randy and Gary left the convenience store in Randy’s

truck.

Viewing the evidence in a neutral light, we conclude a rational trier of fact

could have found beyond a reasonable doubt that Appellant used or exhibited a

deadly weapon, his vehicle, while intentionally or knowingly threatening Randy and

Gary with imminent bodily injury. See Tex. Penal Code Ann. §§ 1.07(a)(17)(B),

22.01(a)(2), 22.02(a)(2). W e cannot say that the evidence is so weak that the jury’s

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determination is clearly wrong or manifestly unjust or that the conflicting evidence

so greatly outweighs the evidence supporting the convictions that the jury’s

determination is manifestly unjust. See Lancon, 253 S.W .3d at 704; Watson, 204

S.W .3d at 414–15, 417. We therefore hold the evidence is factually sufficient to

support the jury’s verdicts. We overrule the remainder of Appellant’s first point.

V. Alleged Extraneous Offense

In his second point, Appellant contends that the trial court egregiously erred

by admitting evidence of his use or possession of brass knuckles, an extraneous

offense. The State counters that Appellant waived any error because the evidence

was previously introduced without objection and that the evidence was properly

admitted as contextual evidence.

A. Preservation of Error

The State contends that Appellant waived any error concerning evidence of

brass knuckles because evidence of brass knuckles was introduced without

objection during Randy’s testimony. W e disagree.

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request, objection,

or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W .2d 249, 265 (Tex.

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the

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trial court must have ruled on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal to

rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W .3d 334, 341 (Tex. Crim.

App. 2004). A request for a running objection is timely and preserves error as long

as it does not encompass too broad a subject matter during too broad a time or over

different witnesses. Ford v. State, 919 S.W .2d 107, 113–14 (Tex. Crim. App. 1996);

Sattiewhite v. State, 786 S.W .2d 271, 283 n.4 (Tex. Crim. App. 1989), cert. denied,

498 U.S. 881 (1990).

Here, the parties held a lengthy discussion with the trial judge before opening

statements concerning Appellant’s motion in limine to exclude any evidence that

Appellant “retrieved some brass knuckles . . . [d]uring the course of the incident.”

Appellant objected at that time to any reference to the brass knuckles under rules

of evidence 401, 402, 403, and 404(b). The trial court overruled the motion in limine

but asked Appellant’s counsel to “renew all [his] prior trial objections” before brass

knuckles were mentioned in evidence. The trial court then told Appellant’s counsel

that it would grant a running objection to any reference to the brass knuckles if the

trial court’s ruling remained the same. Then, in accordance with the trial court’s

instructions, and before Randy testified, Appellant’s counsel advised the trial court

that “this is one of the witnesses identified in my earlier objection and motion as to

the allegation to the brass knuckles. As to this witness, I’d renew all those previous

objections on the grounds that I made.” The trial court overruled the objection but

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stated that Appellant had “a running objection as to all of those grounds previously

stated.” Although Appellant’s motion in limine did not preserve error, Appellant again

objected to the evidence before Randy testified. See Harnett v. State, 38 S.W .3d

650, 655 (Tex. App.—Austin 2000, pet. ref’d) (“It is axiomatic that motions in limine

do not preserve error.”). Thus, we hold that Appellant properly preserved his second

point for our review.

B. Analysis

The admissibility of evidence is within the discretion of the trial court and will

not be overturned absent an abuse of discretion. Moses v. State, 105 S.W .3d 622,

627 (Tex. Crim. App. 2003). So long as the trial court’s ruling lies within the zone of

reasonable disagreement, the appellate court should affirm. Id.

“Same transaction contextual evidence” is evidence reflecting the context in

which a criminal act occurred. Wesbrook v. State, 29 S.W .3d 103, 115 (Tex. Crim.

App. 2000). It is a recognition that events do not occur in a vacuum, and a jury has

a right to hear what occurred immediately before and after the offense in order to

realistically evaluate the evidence. Id. Extraneous offenses may be admissible as

same transaction contextual evidence when “‘several crimes are intermixed, or

blended with one another, or connected so that they form an indivisible criminal

transaction.’“ Prible v. State, 175 S.W .3d 724, 731–32 (Tex. Crim. App.), cert.

denied, 546 U.S. 962 (2005) (quoting Rogers v. State, 853 S.W .2d 29, 33 (Tex.

Crim. App. 1993)). This type of evidence results when an extraneous matter is so

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intertwined with the State’s proof of the charged offense that avoiding reference to

it would make the State’s case incomplete or difficult to understand. Id. at 732.

The evidence at trial indicated that Appellant pulled the brass knuckles from

his pocket as Gary initially approached him in the parking lot. The evidence was

relevant to Appellant’s intent and was arguably part of an indivisible criminal

transaction. W e conclude the evidence was admissible as same transaction

contextual evidence because the events are so interwoven that avoiding reference

to Appellant’s retrieval of the brass knuckles would make the State’s case

incomplete or difficult to understand. See Amaya v. State, 759 S.W .2d 737, 739

(Tex. App.—El Paso 1988, pet. ref’d) (holding attempted theft that preceded the

charged shooting offense was relevant to the motivation for the ensuing violent

confrontation between Appellant and the theft victim’s older brothers because the

“facts of the two incidents [were] so interwoven as to necessitate admission of

evidence of both for a full contextual evaluation of the indicted offense by the jury”).

The trial court did not abuse its discretion by admitting, under rule 404(b), the

evidence concerning Appellant’s use or possession of the brass knuckles.

Under Texas Rule of Evidence 403, otherwise relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. Tex. R. Evid. 403. A Rule 403 analysis by the trial court should include,

but is not limited to, the following considerations: (1) the probative value of the

evidence; (2) the potential of the evidence to impress the jury in some irrational,

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indelible way; (3) the time the proponent needs to develop the evidence; and (4) the

proponent’s need for the evidence. Erazo v. State, 144 S.W .3d 487, 489 (Tex. Crim.

App. 2004). Although a trial court must still perform a balancing test to see if the

same transaction contextual evidence’s probative value is substantially outweighed

by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders

such evidence inadmissible, as long as it sets the stage for the jury’s comprehension

of the whole criminal transaction. Swarb v. State, 125 S.W .3d 672, 681 (Tex.

App.—Houston [1st Dist.] 2003, pet. dism’d).

W e have already concluded that the State had a need to introduce the

evidence of the brass knuckles as relevant to Appellant’s intent. Further, the State

did not use an inordinate amount of trial time to introduce the evidence. Moreover,

the record does not show that the evidence of the brass knuckles had the potential

to impress the jury in some irrational, indelible way. Finally, any arguable prejudice

suffered by Appellant by the introduction of the evidence does not rise to the level

of substantially outweighing the evidence’s probative value in providing context for

the charged offense. W e hold that the trial court did not abuse its discretion by

admitting the evidence concerning Appellant’s use or possession of the brass

knuckles. W e overrule Appellant’s second point. 2

2
 Because we hold that the evidence concerning the brass knuckles was
admissible under rules 404(b) and 403 of the rules of evidence, we need not address
whether the evidence was admissible under rules 401 and 402. See Tex. R. App.
P. 47.1 (requiring appellate court to address “every issue raised and necessary to
final disposition of the appeal”).

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 VI. Limiting Instruction

In his third point, Appellant contends that the trial court egregiously erred by

denying his requested rule 105 limiting instruction concerning the extraneous offense

of twice assaulting Ms. Kurt. See Tex. R. Evid. 105. The State counters that

Appellant failed to preserve error because the request for a limiting instruction was

untimely. W e agree with the State.

In Delgado v. State, the court of criminal appeals stated,

if a defendant does not request a limiting instruction under Rule 105 at
the time that evidence is admitted, then the trial judge has no obligation
to limit the use of that evidence later in the jury charge. This doctrine
is a sensible one because otherwise a jury might sit through most of a
trial under the mistaken belief that certain evidence is admissible for all
purposes when, in fact, it is not. Once evidence has been admitted
without a limiting instruction, it is part of the general evidence and may
be used for all purposes. But even when a party properly requests a
limiting instruction at the time the evidence is first offered, the trial judge
need not give an instruction on the burden of proof at that time. Taking
the cases together, then, a limiting instruction concerning the use of
extraneous offense evidence should be requested, and given, in the
guilt-stage jury charge only if the defendant requested a limiting
instruction at the time the evidence was first admitted.

235 S.W .3d 244, 251 (Tex. Crim. App. 2007) (emphasis added) (internal citations

omitted).

Here, Appellant did not request a limiting instruction concerning Appellant’s

assault of Ms. Kurt until the State had completed its direct examination of Randy.

And it was during the State’s direct examination of Randy that he testified that

Appellant hit Ms. Kurt twice in the convenience store parking lot. Thus, Randy’s

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testimony that Appellant twice hit Ms. Kurt had already been admitted as part of the

general evidence and was usable for all purposes. See id. Appellant failed to

request a limiting instruction at the time the evidence of the assault was first

admitted, and therefore failed to preserve this point for appellate review. See id.;

see also Prescott v. State, 123 S.W .3d 506, 515–16 (Tex. App.—San Antonio 2003,

no pet.) (holding defendant who failed to request limiting instruction concerning use

of extraneous offenses “at the moment the evidence [was] admitted” was not entitled

to limiting instructions in jury charge). W e overrule Appellant’s third point.

VII. Conclusion

Having overruled each of Appellant’s three points, we affirm the trial court’s

judgments.

ANNE GARDNER
JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.

PUBLISH

DELIVERED: May 27, 2010

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