Kristopher Black v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

KRISTOPHER BLACK,
§ No. 08-19-00259-CR
Appellant,
§ Appeal from the
v.
§ 390th District Court
THE STATE OF TEXAS,
§ of Travis County, Texas
Appellee.
(TC# D-1-DC-18-206551)

OPINION

Kristopher Black appeals from his conviction for aggravated assault with a deadly weapon.1

He asserts that the trial court erred by denying his motion to quash the indictment and by admitting

evidence of prior extraneous offenses in the guilt-innocence phase of his trial. We affirm.

BACKGROUND

On September 22, 2018, Black, carrying fishing poles, a tackle box, and a backpack,

entered a Hooters restaurant in Austin, Texas, and told the hostess that he was there to “see ass.”

After the hostess became uncomfortable when Black repeated the comment, she left the hostess

station to get the restaurant manager. When the manager, Zachary Valenzuela, told Black to get

out of the restaurant, Black began yelling and quoting Bible verses, and refused to leave.

1
As this case was transferred from our sister court in Austin, we decide it in accordance with the precedent of that
court. TEX. R. APP. P. 41.3.
Valenzuela was firm with Black, who had become “really mad,” but did not threaten him or rough

him up.

Valenzuela escorted Black out of the restaurant by placing his hands on his back, moving

him in the direction of the front door, until he was out the door. When Black attempted to reenter

the restaurant, Valenzuela told his staff to call the police. As it happened, a uniformed police

officer, Ryan Herring, was dining in the restaurant at the time and was alerted to the situation by

the restaurant staff. In the meantime, Valenzuela had gotten Black outside and down the restaurant

steps to the parking lot. Valenzuela assumed that Black would keep going but, instead, Valenzuela

saw Black flick out his arm, opening a knife he held in his hand. Black came back in Valenzuela’s

direction, flinging his arm out and waving the knife around. Black was yelling, although

Valenzuela did not know what he was saying, and Valenzuela felt threatened and feared for his

life.

At this point, Officer Herring arrived on the scene with his gun drawn and ordered Black

to drop the knife. Black put the knife away and dropped to his knees, with his hands up. Because

Black was compliant, Officer Herring put his gun away and took out his Taser instead. Backup

officers soon arrived and arrested Black. Black resisted being put in the patrol car and, once inside,

engaged in a cycle of calm behavior followed by screaming and banging his head.

Officer Herring testified that Valenzuela did not appear to be aggressive during the

encounter, but Black did. Officer Jody Fiala, who arrested and transported Black for booking, also

testified that Black was highly aggressive, disruptive, and uncooperative. Officer Fiala described

Black’s knife as a large, folding lock-blade. Both officers testified that the knife was a deadly

weapon.

2
 Black testified in his own defense. He described having consumed a number of beers before

arriving at Hooters, and further stated that he went to the restaurant to get something to eat “[t]o

reduce the alcohol effects” on him. He conceded that it was possible that he had made the

inappropriate remark to the hostess, yet believed she left the hostess station to get him a menu or

to have him seated. He was surprised when the manager approached him instead. Black testified

that Valenzuela told him to go eat at Whataburger, that Valenzuela couldn’t stand him, and that

Black should meet Valenzuela at a blue car in the parking lot. Valenzuela denied making any of

these comments.

Black stated that he became afraid because there was an individual in the blue car whom

he did not know and because Valenzuela kept pursuing him. Black testified that he “whipped out

[his] knife in fear” to get Valenzuela to “back off.” Black also admitted that he had previously had

“quite a bit” of trouble with the law.

On cross-examination, the State was permitted to inquire, over Black’s objection, about

five prior assault convictions. For each prior conviction, Black was asked only whether it was true

that he had been convicted of the offense. For one conviction, Black answered, “yes”; for the

second, he answered that it was possible; for the third, he answered that it “could be”; and for the

fourth and fifth, he answered “yes,” but that even though there were two convictions, he only

assaulted one person. On redirect, Black’s own counsel asked him whether he had contested any

of the prior charges against him. Black answered that he had not; he pleaded “no contest” to each.

The jury returned a verdict of guilty as charged in the indictment, and the court sentenced

Black to four years’ confinement. This appeal followed.

DISCUSSION

3
 In his first issue on appeal, Black contends that the trial court erred by denying his motion

to quash the indictment on the ground that it did not provide him sufficient notice of the offense

with which he was charged. In his second issue, Black contends that the trial court erred by

allowing the State to introduce evidence of five prior misdemeanor assault convictions during the

guilt-innocence phase of trial.

A. Standards of Review

1) Sufficiency of the indictment

The sufficiency of an indictment presents a question of law, which is reviewed de novo.

State v. Drummond, 501 S.W.3d 78, 81 (Tex. Crim. App. 2016); State v. Zuniga, 512 S.W.3d 902,

906 (Tex. Crim. App. 2017).

2) Admissibility of extraneous offense evidence

A trial court’s ruling on the admissibility of evidence of extraneous offenses is reviewed

for abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Under

that standard, the court’s ruling will be upheld as long as it is within the “zone of reasonable

disagreement . . . .” Id. at 343-44. “A trial court’s ruling is generally within this zone if the evidence

shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the

probative value of that evidence is not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading of the jury.” Id. at 344. In addition, the trial court’s ruling

will be upheld if it is correct on any theory of law applicable to that ruling. Id.

B. Issue One - Sufficiency of the indictment

In his first issue, Black contends the trial court committed reversible error in denying his

motion to quash the indictment. He contends the indictment failed to allege sufficient facts to

4
properly give notice of the conduct supporting the offense charged. In asserting the indictment

lacked an explanation of how a threat was conducted, Black contends the State’s theory of the

alleged fault was unclear such that it led to confusion and hampered his ability to prepare for trial.

The Texas Code of Criminal Procedure provides guidance on what must be included in a

criminal indictment. For instance, “[e]verything should be stated in an indictment which is

necessary to be proved.” TEX. CODE CRIM. PROC. ANN. art. 21.03. Further,

[a]n indictment shall be deemed sufficient which charges the commission of the
offense in ordinary and concise language in such a manner as to enable a person of
common understanding to know what is meant, and with that degree of certainty
that will give the defendant notice of the particular offense with which he is
charged, and enable the court, on conviction, to pronounce the proper judgment . .
..

TEX. CODE CRIM. PROC. ANN. art. 21.11.

As a general rule, an indictment that tracks the language of the applicable statute satisfies

constitutional and statutory requirements. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App.

2019); Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). But when a defendant files a

motion to quash, an indictment must allege on its face the facts necessary to give the defendant

notice of precisely what he is charged with. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim.

App. 1988) (en banc). In other words, “[t]he charging instrument must convey sufficient notice to

allow the accused to prepare a defense.” Curry, 30 S.W.3d at 398. The State is not required, though,

to plead facts that are merely evidentiary. Curry, 30 S.W.3d at 398; DeVaughn, 749 S.W.2d at 67.

As the Court of Criminal Appeals has explained,

[A]n indictment or information which tracks the language of the statute which
defines the act constituting the offense is sufficient to convey adequate notice to an
accused only where the language of the statute is itself completely descriptive of
the offense. In cases where the statutory language is not completely descriptive of

5
 the offense, then additional specificity will be required in the face of a timely
motion to quash.

DeVaughn, 749 S.W.2d at 69; see Curry, 30 S.W.3d at 398. “For example, when a statute defines

the manner or means of commission in several alternative ways, an indictment will fail for lack of

specificity if it neglects to identify which of the statutory means it addresses.” Curry, 30 S.W.3d

at 398.

A court evaluating the adequacy of an indictment’s allegations to give notice employs a

two-step analysis. State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App. 2017); State v.

Barbernell, 257 S.W.3d 248, 255 (Tex. Crim. App. 2008). The court must first identify the

elements of the offense. Jarreau, 512 S.W.3d at 354; Barbernell, 257 S.W.3d at 255. “Next, it

must consider whether the statutory language is sufficiently descriptive of the charged offense.”

Zuniga, 512 S.W.3d at 907; see Jarreau, 512 S.W.3d at 355.

Concerning the second prong of the analysis, “if an element of the offense describing an

act or omission by the defendant has been defined by the Legislature, a court must ask whether the

statute provides ‘alternative manners or means in which the act or omission can be committed.’”

Jarreau, 512 S.W.3d at 354-55. If it does, then the indictment supplies adequate notice “only if,

in addition to setting out the elements of an offense, it also alleges the specific manner and means

of commission that the State intends to rely on at trial.” Id. at 355; see State v. Mays, 967 S.W.2d

404, 407 (Tex. Crim. App. 1998) (en banc). Additional specificity may also be required if the

statute uses an undefined term of indeterminate or variable meaning. Zuniga, 512 S.W.3d at 907;

Mays, 967 S.W.2d at 407.

Black was charged with aggravated assault causing bodily injury. A person commits that

offense if he commits an assault, as defined in section 22.01 of the Texas Penal Code, and “uses

6
or exhibits a deadly weapon during the commission of the assault.” TEX. PENAL CODE ANN. §

22.02(a)(2). A person commits assault under section 22.01 if he “intentionally or knowingly

threatens another with imminent bodily injury . . . .” TEX. PENAL CODE ANN. § 22.01(a)(2). The

elements of the offense with which Black was charged are, therefore, (1) intentionally or

knowingly (2) threatening another with imminent bodily injury, and (3) using or exhibiting a

deadly weapon (4) during the commission of that assault.

The indictment here at issue charged that Black, “on or about the 22nd day of September,

2018, . . . did then and there [1] intentionally and knowingly [2] threaten Zachary Valenzuela with

imminent bodily injury, and the Defendant did then and there [3] use and exhibit a deadly weapon,

to-wit: a knife, [4] during the commission of the said assault . . . .” The indictment tracks the

relevant statutory language and alleges each element of the offense of aggravated assault. See TEX.

PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2). It is therefore legally sufficient to charge that

offense. See Hughitt, 583 S.W.3d at 626; Curry, 30 S.W.3d at 398. But Black contends that the

indictment was inadequate to give him notice sufficient to prepare a defense because it fails to

state the “manner and means” by which he threatened Valenzuela. See Curry, 30 S.W.3d at 398.

We consider, then, whether the statutory language is sufficiently descriptive of the charged

offense. See Jarreau, 512 S.W.3d at 355; Zuniga, 512 S.W.3d at 907.

The act here at issue is threatening another with imminent bodily injury. “Threat” is neither

statutorily defined, nor does the statute specify alternative manners or means in which the act can

be committed. See Jarreau, 512 S.W.3d at 354-55. Black asserts that the threat he is alleged to

have made could have been accomplished in a variety of ways—verbally, physically, by use of a

knife, or by some independent action or gesture. For this reason, he urges, he was entitled to

7
additional specificity concerning the manner and means by which he is alleged to have threatened

Valenzuela. See Zuniga, 512 S.W.3d at 907; Mays, 967 S.W.2d at 407.

The court below relied on Pacheco v. State, 529 S.W.2d 77 (Tex. Crim. App. 1975), in

concluding that the indictment gives sufficient notice. That case concerned a challenge to an

indictment that alleged that the defendant “[d]id then and there use a pistol, a deadly weapon, to

intentionally threaten imminent bodily injury to Ernest Riojas. . . .” Id. at 77. The Court of Criminal

Appeals stated, “We perceive no material difference between alleging that one intentionally

threatened another with imminent bodily injury by using a pistol and alleging that one used a pistol

to intentionally threaten another with imminent bodily injury. Each is sufficient to allege

aggravated assault with a deadly weapon . . . .” Id. There is no indication in Pacheco, however,

that the defendant filed a motion to quash asserting failure of the indictment to provide sufficient

notice. On the contrary, it appears that the question before the court was the legal sufficiency of

the indictment to allege an offense, which is distinct from the issue of adequate notice. See Garcia

v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998) (en banc) (statutory requirement of certainty

in an indictment is distinct from, and independent of, constitutional requirement of adequate

notice). Pacheco therefore does not govern the analysis in this case.

Black asserts that the State was required to more specifically allege facts showing the

manner and means by which he threatened Valenzuela because using or exhibiting a knife is not

an inherently criminal act. As the Court of Criminal Appeals has stated, “[a]lthough it is generally

sufficient to allege an offense in the terms of the statute without alleging additional facts, if it is

the manner and means by which an act is done that makes the otherwise innocent act a criminal

offense, it is necessary to allege facts showing the manner and means which make the act a criminal

8
offense.” Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977).

Black argues that the indictment alleges only that he used and exhibited a knife during the

commission of an assault, not that he used and exhibited a knife to commit the assault. He urges

that it is not a criminal act to merely use or exhibit a knife, and that it is the context and

circumstances surrounding the use or exhibition that may make it a criminal act. He concludes

that, because the indictment against him only alleges use and exhibition of a knife, it alleges only

a non-criminal act. After concluding that Black reads the indictment too narrowly, we disagree.

The allegation that he used and exhibited a knife during the commission of an assault adequately

provides the context and circumstances of that use and exhibition, and thus adequately alleges that

the use and exhibition was a criminal act. Cf. Posey, 545 S.W.2d at 163-64 (presenting to a

pharmacist a prescription for a controlled substance purporting to be prescribed for a third person

does not allege a criminal act because it is not an offense to pick up a prescription for a friend or

family member).

Black also relies heavily on Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983) (en

banc), to support his contention that the State was required to more specifically allege the manner

and means by which he threatened Valenzuela. In Doyle, retaliation was the offense at issue, which

is defined as “intentionally or knowingly harm[ing] or threaten[ing] to harm another by an

unlawful act in retaliation for or on account of the service of another as a public servant, witness

or informant.” Id. at 729 (quoting TEX. PENAL CODE ANN. § 36.06(a)). The indictment in Doyle

alleged that the defendant:

[I]ntentionally and knowingly threaten[ed] to harm another person, namely: Dan
Gibbs, by an unlawful act in retaliation for and on account of the service of the said
Dan Gibbs as a public servant, in that the said defendant threatened to kill the said

9
 Dan Gibbs on account of the services of the said Dan Gibbs as a judge in a prior
lawsuit in which the defendant was a party.

Id.

The Court of Criminal Appeals noted that the indictment did not specify the manner or

means by which the offense was committed, and that the alleged threat “could have been conveyed

in a number of ways, including: face to face in person, over the phone directly, through a third

party, or through the mail.” Id. at 730. As it turned out, the threat was made, not to Dan Gibbs, but

to a police officer. Id. The court further noted that the State could not have proved the alleged

threat without describing how and to whom it was made, which required testimony by the police

officer. Id. The court concluded that the defendant was entitled to more specific notice of the

offense he was alleged to have committed and, therefore, the trial court erred by overruling his

motion to quash. Id. at 731.

We find Doyle to be distinguishable. The indictment there did not give the defendant any

indication whatsoever how he was alleged to have threatened the victim.2 The indictment in the

present case, however, read logically and as a whole, alleges that Black used and exhibited a knife

in a manner that threatened imminent bodily injury to the victim. It thus sufficiently conveys how

and to whom the threat was made.

The circumstances presented in Hare v. State, 713 S.W.2d 396 (Tex. App.—El Paso 1986,

pet. ref’d), closely resemble the circumstances of the case before us. The indictment in Hare

alleged that the defendant “intentionally and knowingly threaten[ed] Larry Jackson with imminent

2
Other cases on which Black relies are similarly distinguishable. See, e.g., Cruise v. State, 587 S.W.2d 403, 404 (Tex.
Crim. App. 1979) (indictment gave no indication of how defendant caused bodily injury to victim); Miller v. State,
647 S.W.2d 266, 267 (Tex. Crim. App. 1983) (en banc) (indictment gave no indication of how defendant damaged
and destroyed an automobile); Castillo v. State, 689 S.W.2d 443, 449 (Tex. Crim. App. 1984) (en banc) (indictment
gave no indication of how defendant started a fire).

10
bodily injury and did then and there use a deadly weapon, to-wit; a 1984 Chrysler automobile that

in the manner of its use and intended use was capable of causing death and serious bodily injury .

. . .” Id. at 398. The defendant argued that the indictment “fail[ed] to adequately allege the manner

and means by which the crime was committed, specifically with regard to the word ‘threaten’ and

the specific acts performed with the alleged vehicle.” Id.

This Court found that an automobile “is not susceptible to widely varied manners of use in

an intentionally assaultive manner such as to preclude preparation of a defense. The only common

sense meaning of the indictment is that the vehicle was intentionally or knowingly driven in an

assaultive manner threatening imminent serious bodily injury or death to the complainant.” Id.;

see St. Clair v. State, 26 S.W.3d 89, 95 (Tex. App.—Waco 2000, pet. ref’d) (adopting reasoning

of Hare). The Court concluded that the indictment was sufficient to give notice of the offense

charged. Hare, 713 S.W.2d at 398.

Generally, the use of an automobile is an innocent act. But the allegation that an automobile

was used in the context of threatening another with imminent bodily injury was sufficient to allege

that the manner of its use was criminal. See id. Similarly, even accepting that the use or exhibition

of a knife is generally an innocent act, the allegation that Black used and exhibited a knife in the

context of committing an assault by threatening imminent bodily injury to Valenzuela is sufficient

to allege that the manner of its use was criminal.

This leads to the further conclusion that the State was not required to allege, more

specifically, the manner and means by which Black is alleged to have threatened Valenzuela.

While a threat, in the abstract, may be conveyed in a variety of ways, the indictment here did not

simply allege, without context, that Black threatened Valenzuela. The indictment—when read as

11
a whole—demonstrates that the manner and means by which the threat was conveyed was

accomplished by the use and exhibition of a knife. To require the State to specifically allege how

the knife was used in communicating the threat (e.g., by making a slashing, waving, or thrusting

motion, or by simply displaying the knife) would improperly require it to allege facts that are

merely evidentiary. Curry, 30 S.W.3d at 398; DeVaughn, 749 S.W.2d at 67. This we may not do.

We conclude that the indictment gave Black notice of the charged offense sufficient to

have permitted him to prepare his defense.

Issue One is overruled.

C. Issue Two - Evidence of prior convictions

In his second issue, Black contends the trial court committed reversible error in allowing

the State to introduce evidence of five prior extraneous offenses in violation of Texas Rules of

Evidence 404(b) and 403. Responding, the State contends the challenged evidence was admissible

under Texas Rule of Evidence 107; and, in any event, any error by the trial court in admitting the

evidence was harmless.

1) Underlying facts

Black testified on direct examination that he had previously had “quite a bit” of trouble

with the law. At the conclusion of Black’s testimony on direct, the State approached the bench and

requested that it be allowed to present evidence of several prior convictions. The State argued that

Black had opened the door to that evidence by raising the defensive theory of self-defense. The

State urged that the prior convictions were thus admissible under evidence rule 404 to rebut that

defensive theory. See TEX. R. EVID. 404(b).

The trial court ruled that the State would be permitted to introduce the fact of Black’s five

12
prior assault convictions, finding that the probative value of that evidence outweighed its

prejudicial effect. The court instructed the jury that it could consider the evidence of extraneous

offenses only for purposes of “[m]otive, opportunity, intent, preparation, plan, knowledge, absence

of mistake, or accident, and not to prove that the defendant acted in conformance therewith on the

date of this alleged assault.”3

The State then asked Black whether it was true that he had been convicted of each of the

five prior assault charges. Black admitted that he had4 and the convictions were not mentioned

again until redirect. At that point, Black’s counsel asked Black whether he had contested the prior

charges, and Black answered that he had not.

2) Admissibility under rule 404(b)

Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” TEX. R. EVID. 404(b)(1). But such evidence “may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2).

Black argues that evidence of his prior convictions had no relevance apart from showing

his propensity to commit assault. The State argued in the court below that the evidence was

admissible to rebut the defensive theory of self-defense. The jury, however, was not instructed that

it could consider the evidence for that purpose. This fact is fatal to the State’s rebuttal theory of

3
The jury charge contained a similar instruction.
4
For one of the convictions, Black answered that it was “possible”; for another, he answered that “it could be” and
that he was not going to contend with the prosecutor.

13
admissibility:

The Texas Court of Criminal Appeals has held that an appellate court cannot affirm
a trial court’s decision to admit extraneous-offense evidence to rebut a defensive
theory if the trial court failed to instruct the jury, in the trial court’s limiting
instruction, on the extraneous evidence admissibility to rebut a defensive theory.

Jackson v. State, 320 S.W.3d 873, 887 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Owens v.

State, 827 S.W.2d 911, 917 (Tex. Crim. App. 1992)); see Curtis v. State, 89 S.W.3d 163, 170-71

(Tex. App.—Fort Worth 2002, pet. ref’d). We therefore cannot uphold the trial court’s evidentiary

ruling on the basis that Black’s prior convictions were admissible to rebut his defensive theory of

self-defense.

We also note that, even if the jury had been instructed that it could consider evidence of

Black’s prior convictions to rebut his theory of self-defense, we could not conclude that it was

properly admitted for that purpose. The case on which the State and the trial court relied states

that, “[i]f the defendant claims self-defense, the State may rebut this claim by introducing evidence

of other violent acts in which the defendant was the aggressor.” Wilson v. State, No. 05-06-

01558-CR, 2007 WL 4201087, at *4 (Tex. App.—Dallas Nov. 29, 2007, pet. ref’d) (mem. op., not

designated for publication). But nothing in our record shows the facts or circumstances underlying

any of Black’s prior convictions. The mere fact that those convictions were for assault does not

necessarily establish that Black was the aggressor in those cases, or otherwise rebut his claim of

self-defense in the circumstances of this case. The evidence therefore lacks any probative value on

the issue of Black’s defensive theory and was inadmissible for the purpose of rebutting that theory.

The record does not demonstrate that evidence of Black’s prior assault convictions was

relevant to any proper purpose. Rather, its only relevance was to prove that, on the occasion in

question, Black acted in conformity with an assaultive character. Thus, we conclude the evidence

14
was inadmissible under rule 404(b). See TEX. R. EVID. 404(b)(1) (prohibiting use of evidence of

other crimes to prove defendant acted in conformity).

Nonetheless, the State does not argue on appeal that the decision to admit evidence of

Black’s prior convictions should be upheld based on rule 404. Rather, it argues that, regardless of

whether it was admissible under rule 404, the evidence was admissible under evidence rule 107.

That rule provides,

If a party introduces part of an act, declaration, conversation, writing, or recorded
statement, an adverse party may inquire into any other part on the same subject. An
adverse party may also introduce any other act, declaration, conversation, writing,
or recorded statement that is necessary to explain or allow the trier of fact to fully
understand the part offered by the opponent. . . .

TEX. R. EVID. 107. While the State did not raise this theory of admissibility at trial, it points out

that a trial court’s evidentiary ruling will be upheld if it is correct on any theory of law applicable

to that ruling. De La Paz, 279 S.W.3d at 344. Rule 107, however, is not applicable to the trial

court’s ruling admitting evidence of Black’s prior assault convictions.

Rule 107, the rule of optional completeness, is an exception to the hearsay rule. Walters v.

State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Whipple v. State, 281 S.W.3d 482, 500 (Tex.

App.—El Paso 2008, pet. ref’d).

This rule is one of admissibility and permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a
matter “opened up” by the adverse party. It is designed to reduce the possibility of
the jury receiving a false impression from hearing only a part of some act,
conversation, or writing. Rule 107 does not permit the introduction of other similar,
but inadmissible, evidence unless it is necessary to explain properly admitted
evidence. Further, the rule is not invoked by the mere reference to a document,
statement, or act.

Walters, 247 S.W.3d at 217–18 (footnotes omitted); accord Whipple, 281 S.W.3d at 500.

The properly admitted evidence in this case was Black’s admission that he had previously

15
had “quite a bit” of trouble with the law. Black did not further describe or discuss that trouble. We

cannot conclude that his bare admission of prior run-ins with the law left the jury with any false

impression that required explanation. Indeed, we question whether it can properly be characterized

as evidence of “part of an act.” See TEX. R. EVID. 107. Rather, it was more in the nature of a “mere

reference” to prior acts that does not invoke the rule of optional completeness. See Walters, 247

S.W.3d at 218; Whipple, 281 S.W.3d at 500.

Our conclusion might have been different if Black had attempted to minimize his prior

criminal conduct or otherwise left the impression that he had committed only minor offenses or

offenses completely unlike the one for which he was on trial. For example, the rule of optional

completeness applied in Arebalo v. State, 143 S.W.3d 402 (Tex. App.—Austin 2004, pet. ref’d),

because the defendant testified that he had seen someone get shot, but omitted the fact that he was

the shooter. Id. at 407-408. In the present case, though, the jury was informed only of the fact that

Black had previously had problems with the law. That fact was entirely true and left no false

impression that required explanation. See Walters, 247 S.W.3d 204, 218 (evidence admissible

under rule 107 only if necessary to explain properly admitted evidence); Fuentes v. State, 991

S.W.2d 267, 279 (Tex. Crim. App. 1999) (extraneous offense evidence admissible under rule 107

when there is a “necessity of completeness”).

In sum, the trial court’s decision to admit evidence of Black’s prior convictions cannot be

upheld under rule 107.

3) Exclusion under rule 403

Black additionally contends that the evidence of his prior assault convictions was

inadmissible because its probative value was substantially outweighed by the danger of undue

16
prejudice. See TEX. R. EVID. 403. We need not address this contention because we have already

determined that the evidence was not properly admitted under either rule 404(b) or rule 107.

4) Harm analysis

We must now consider whether the error in admitting evidence of Black’s prior convictions

was harmful. Because the error does not rise to the level of constitutional error, it will not result in

reversal of the conviction if, “after examining the record as a whole, [this Court] has fair assurance

that the error did not influence the jury, or had but a slight effect.” Bagheri v. State, 119 S.W.3d

755, 763 (Tex. Crim. App. 2003); see Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998); TEX. R. APP. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.”).

The record in this case contains testimony from two eyewitnesses, Officer Herring and

Zachary Valenzuela, establishing that Black, while upset and yelling at Valenzuela, flung open a

knife and threatened Valenzuela with it. Valenzuela testified that he felt threatened and feared for

his life. Officer Herring testified that Valenzuela’s reaction to Black pulling out the knife showed

that he felt threatened. Officer Herring and a third witness, Officer Fiala, both testified that Black’s

behavior was aggressive.

Black admitted pulling a knife on Valenzuela but testified that he did so because he wanted

to be left alone. He claimed he wanted Valenzuela to “back off.” He also admitted that he was

angry about being escorted out of the restaurant, and his own testimony indicates that he was

intoxicated at the time. Finally, in testimony elicited by his own attorney, Black admitted that he

had previously had “quite a bit” of trouble with the law. The evidence of his prior convictions

merely identified five of the offenses that constituted that “quite a bit” of trouble. While the jury

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was informed that those convictions were for assault, the evidence does not include any discussion

of the details of those offenses and the State did not pursue the issue beyond establishing the fact

of the convictions.

The record also reveals that the jury was instructed at the time the evidence of prior

convictions was introduced that it could not consider that evidence to prove that Black “acted in

conformance therewith on the date of this alleged assault.” It was also instructed in the jury charge

that Black was on trial solely on the charge contained in the indictment, and that the jury could

consider evidence of other similar acts only “for the purposes of determining motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, . . . and for

no other purpose.” Finally, while the State made reference to Black’s prior convictions in its

closing remarks to the jury, it did not emphasize those convictions and reiterated that the jury could

use evidence of those convictions only for limited purposes.

After examining the record as a whole, we have fair assurance that admitting evidence of

the mere fact of Black’s prior convictions had but slight, if any, effect on the jury. See Bagheri,

119 S.W.3d at 763; Johnson, 967 S.W.2d at 417. We conclude that the error in admitting that

evidence is harmless. See TEX. R. APP. P. 44.2(b).

Issue Two is overruled.

D. Reformation of the judgment

We note that the trial court’s judgment included in the clerk’s record contains a clerical

error. The judgment is titled, “Judgment of Conviction by Court—Waiver of Jury Trial,” and, on

its face, indicates that Black entered a plea of guilty to the offense of aggravated assault with a

deadly weapon as charged by the indictment. Moreover, the judgment further states that, after both

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parties announced ready for trial, “Defendant waived the right of trial by jury . . . .” Yet, the record

before us makes it clear that Black was convicted by a jury following a jury trial. After a jury was

empaneled and sworn in, the State read the indictment in open court and Black then pleaded not

guilty to the offense charged. After two days of trial, the jury returned a unanimous verdict finding

Black guilty of the offense charged, namely, aggravated assault with a deadly weapon. The jury

was released as Black had elected for the court to assess punishment. Later, the trial court imposed

a sentence of confinement in the Texas Department of Criminal Justice for four years in accordance

with an agreement Black had reached with the State.

We have authority to reform the judgment of the court below to make the record speak the

truth when we have the information necessary to do so. TEX. R. APP. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts have the power to reform whatever

the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to

correct the judgment appears in the record. Robinson v. State, 568 S.W.3d 718 724-25 (Tex.

App.—Amarillo 2019, no pet.).

CONCLUSION

Having overruled Black’s two issues on appeal, we reform the trial court’s judgment to

correct that he was convicted by a jury after entering a plea of not guilty and, as reformed, affirm

the trial court’s judgment.

GINA M. PALAFOX, Justice
September 15, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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