Charyan Demon Thomas v. the State of Texas

Affirmed and Opinion filed August 26, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00685-CR

CHARYAN DEMON THOMAS, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 18564

OPINION

Appellant Charyan Demon Thomas appeals his conviction for continuous
violence against a family member. Appellant argues that the trial court erred in
admitting evidence of an extraneous offense under article 38.371 of the Texas
Code of Criminal Procedure on the grounds that (1) the statute on its face violates
his constitutional rights to due process, and (2) the evidence was admitted in
violation of Rule of Evidence 404(b).1 Appellant also challenges the trial court’s
admission into evidence during the punishment phase of trial of disciplinary
records affiliated with a previous felony conviction. Concluding that article 38.371
is not unconstitutional on its face, the evidence was not admitted in violation of
Rule 404(b), and any error in admitting the disciplinary records was harmless, we
affirm.

Background

Complainant is appellant’s wife. Complainant testified that one evening in
February 2018, she and appellant had been smoking crack cocaine in the bedroom
of their apartment. After appellant accused complainant of hiding crack from him,
he grabbed her by the throat and covered her mouth and nose, preventing her from
breathing normally. Complainant said she felt like she was fighting for her life
because she could not breathe. This happened while the couple’s three year old
daughter was in the room. A neighbor heard the child “screaming and hollering,”
knocked on the bedroom window, and called 911. After the neighbor knocked,
appellant fled.

An officer was dispatched to the apartment. When he arrived, he found
complainant distressed, screaming, and crying. Her lip was swollen, she had dry
blood around her nose, and she had marks on her neck. She told the officer that she
had been assaulted in the bedroom. The officer observed the bedroom and testified,
“[S]tuff was just everywhere.” The sheets were off the bed, and the room was
disheveled, which was consistent with the allegation that an assault had occurred
there. Photographs of complainant taken after the assault showed marks on her lip,

1
Article 38.371 allows, among other things, testimony or evidence concerning the nature
of the relationship between the actor and the alleged victim in certain offenses involving family
or dating violence. Tex. Code Crim. Proc. art. 38.371(b).

2
throat, and neck that complainant said were made by appellant’s hands. She also
had scratches and blood on her face and neck.

Complainant also testified that one evening in December 2018, she got off
work, went home, and began smoking crack with appellant again. According to
complainant, she did not want to smoke, but she “knew what was coming if [she]
didn’t do it,” which “could have been a choke, a hit, a punch, a threat.” After
smoking on and off for four to five hours, appellant accused complainant of
cheating on him or hiding crack. Complainant said appellant put both of his hands
around her neck and threw her a couple of times, and each time, she landed in the
bathtub or the bathroom closet. To try to get appellant to leave, complainant told
him she had more crack in the car. He walked outside, but when complainant tried
to lock the sliding glass door to the apartment, appellant forced his way back in
and punched complainant in the eye. She fell to the ground. Appellant got on top of
her and grabbed her by “the shirt, around [her] neck.”

A neighbor saw the attack and screamed, and complainant ran into the
bathroom. Complainant shut the bathroom door and locked it. Appellant kicked the
bathroom door in with his foot, grabbed his things, and fled. Complainant testified
that during the assault she was afraid her head would hit the toilet or hit the side of
the bathtub and she would die. Photographs taken after the assault and admitted at
trial showed blood on complainant’s shirt, fingernail marks on her neck, and
bruises on her throat from being grabbed. Complainant testified that appellant
strangled her more than one time that night.

The officer who was dispatched to the scene testified that when he arrived,
the apartment was in disarray. There were vertical blinds all over the floor. The
officer said, “It looked like there was a struggle inside of the house. There was
stuff everywhere. Blood.” Complainant was “upset and crying.” She had a

3
laceration under her eye, and her neck was “all scratched up on both sides.”
Complainant had blood on her shirt, and the officer thought it was from the
laceration under her eye. Complainant was transported to the hospital, and after she
was discharged, the officer took her to a hotel for the night so she would be safe.

Another officer took complainant home the next day. He testified that she
“appeared to be beaten very badly.” Her apartment was “[v]ery disheveled, very
out of order, things were thrown about. There was blood on the floor, the bathroom
door was partially broken off as well.”

A grand jury indicted appellant for continuous violence against the family by
intentionally, knowingly, or recklessly causing bodily injury to complainant (1) in
February 2018 by impeding the normal breathing or circulation of the blood by
applying pressure to the throat or neck and by blocking the nose or mouth, and
(2) in December 2018 by impeding the normal breathing or circulation of the blood
by applying pressure to the throat or neck. The grand jury further alleged that
appellant used or exhibited a deadly weapon, his hands, during the commission of
the offenses.

Complainant conceded at trial that she had filed at least three non-
prosecution affidavits in which she attested that she had falsely accused appellant
of injuring her. She had attested that her injuries were caused by other people and
by her running into the blinds while she was high on crack. She had also testified
during appellant’s bond hearing that appellant did not cause her injuries.
Complainant wrote three letters to appellant stating that she lied to the police.
Complainant testified at trial that she wrote the letters because she loved appellant.
She also said, “I’ve lied about a lot of things” but that she was tired of not facing
the truth of what happened during the assaults. One of the officers testified that it is
common for victims of family violence to report an assault and then recant

4
“[b]ecause they are scared of the suspect” or want to protect the suspect.

The doctor who treated complainant after the December assault testified that
complainant’s injuries were likely consistent with being punched in the face and
choked. He said complainant had two major sets of injuries—the laceration under
her eye that required sutures and marks on her neck consistent with allegations of
being choked. He conceded it would technically be possible for complainant’s
injuries to be self-inflicted but stated “[i]t would be very difficult to do that to
yourself.” He said the injuries were not consistent with “accidentally bumping into
some mini blinds.” The injuries were consistent with what the doctor “would
expect in strangulation.” Human hands can cause death by strangulation. Whether
someone has been strangled must be determined by a review of the totality of the
circumstances.

Appellant’s defense strategy was to challenge complainant’s credibility as to
whether appellant caused complainant’s injuries. The trial court admitted evidence
of another assault that occurred in April 2017 for which appellant was indicted.
Prior to the State’s introduction of the evidence, the trial court gave a limiting
instruction that the evidence was being offered by the State “for purposes of
identity to rebut a defensive theory and/or to show the previous and subsequent
relationship of the defendant and [complainant].” The jury was instructed to limit
its consideration of the evidence as follows:

You are not to consider that evidence at all unless you find, beyond a
reasonable doubt, that the defendant did in fact commit the wrongful
acts . . . . Even if you do find that the defendant committed these
wrongful acts, you may consider this evidence only for the limited
purposes I described. You may not consider this evidence to prove
that the defendant is a bad person and for this reason was likely to
commit the charged offense. [Y]ou should consider this evidence only
for the specific limited purposes described. To consider it for any
other purpose would be improper.
5
 Complainant testified that on the day of the April 2017 assault, appellant
again was smoking crack. After complainant asked for some crack and appellant
told her no, she decided to take a bath. Appellant became angry, punched
complainant in the eye, and threw her. She blacked out and woke up “over the
sink.” She had a broken eye socket and a broken finger. Photographs of
complainant from that day reflected injuries to her face and hands. Complainant
also testified that if she stayed in a relationship with appellant, she believed she
would die.

During the punishment phase of trial, the trial court admitted over
appellant’s objections disciplinary records attached to a penitentiary packet from
appellant’s previous felony conviction for aggravated robbery.2 The trial court
instructed the jury that it could not “consider any evidence of any particular
wrongdoing unless [it found], beyond a reasonable doubt, that the defendant did, in
fact, commit that wrongful act.”

Discussion

Appellant contends the trial court erred in admitting evidence under article
38.371 of the April 2017 assault on the grounds that (1) article 38.371 on its face
violates principles of constitutional due process, and (2) the trial court misapplied
article 38.371 and admitted the evidence in violation of Rule 404(b). Appellant
also challenges the trial court’s admission during the punishment phase of the
disciplinary records attached to appellant’s pen pack.

2
Penitentiary packets, also referred to as pen packs, are records of a person sent to prison
after a conviction and are maintained by the Texas Department of Criminal Justice. Romero v.
State, No. 04-20-00111-CR, 2021 WL 1269912, at *1 n.2 (Tex. App.—San Antonio Apr. 7,
2021, pet. ref’d) (mem. op., not designated for publication).

6
 I. Constitutionality of the Statute

In his first issue, appellant contends that article 38.371 violates the Due
Process Clauses of the Fifth and Fourteenth Amendments to the United States
Constitution. Appellant brings a facial challenge to the statute, asserting that “the
statute is facially unconstitutional in all of its applications.” We address this issue
as a matter of first impression.

The version of article 38.371 in effect when appellant’s case was tried
applies to certain family violence offenses, including the one for which appellant
was convicted, and provides the following:

(b) In the prosecution of an [applicable] offense . . . ,
subject to the Texas Rules of Evidence or other
applicable law, each party may offer testimony or other
evidence of all relevant facts and circumstances that
would assist the trier of fact in determining whether the
actor committed the offense described . . . , including
testimony or evidence regarding the nature of the
relationship between the actor and the alleged victim.

(c) This article does not permit the presentation of
character evidence that would otherwise be inadmissible
under the Texas Rules of Evidence or other applicable
law.

Tex. Code Crim. Proc. art. 38.371(b), (c) (former version).

We review a challenge to the constitutionality of a statute de novo. Vandyke
v. State, 538 S.W.3d 561, 570 (Tex. Crim. App. 2017). Appellant bears the burden
of establishing the statute’s unconstitutionality. See Allen v. State, 614 S.W.3d 736,
740 (Tex. Crim. App. 2019). We begin with the presumption that the statute is
valid. Id. We seek to interpret the statute in a way to support and uphold its
constitutionality. Id. The burden to overcome the statute’s presumed
constitutionality is high, but a facial challenge carries an even higher burden. Id.
7
Because appellant brings a facial challenge to the statute, he must establish that no
set of circumstances exists under which the statute would be valid. See id. at 741.
Given this high burden, a facial challenge is the most difficult to mount
successfully. Id.

Appellant’s facial challenge is rooted in the Due Process Clauses of the
United States Constitution. The Due Process Clauses in the Fifth and Fourteenth
Amendments prohibit states from depriving any person of life, liberty, or property,
without due process of law. U.S. Const. amends. V, XIV. To comply with due
process, the State must prove, beyond a reasonable doubt, every element of the
crime charged. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Jackson v. Virginia, 443 U.S. 307, 316 (1979)); Harris v. State, 475 S.W.3d 395,
399 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Generally, an accused
must be tried only for the offense with which he is charged and may not be tried
for a collateral crime or being a criminal generally. Stafford v. State, 813 S.W.2d
503, 506 (Tex. Crim. App. 1991); Harris, 475 S.W.3d at 399. The essential
guarantee of due process is that the government may not imprison or otherwise
physically restrain a person except in accordance with fair procedures. Long v.
State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled on other grounds,
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Harris, 475 S.W.3d
at 399.

Appellant acknowledges that he does not have a fundamental right to a trial
free from the introduction of extraneous offense evidence. See Harris, 475 S.W.3d
at 401. Because appellant does not contend that the statute violates a fundamental
right, we review the statute under the rational basis test—is the statute reasonable,
not arbitrary, and rationally related to a legitimate state interest? See Schlittler v.
State, 488 S.W.3d 306, 315 (Tex. Crim. App. 2016); Jackson v. State, 807 S.W.2d

8
387, 390 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).

Although the rule provides that evidence of extraneous offenses may not be
used against the accused in a criminal trial, this general prohibition carries with it
numerous exceptions.3 Harris, 475 S.W.3d at 401 (citing Daggett v. State, 187
S.W.3d 444, 450–51 (Tex. Crim. App. 2005)). Article 38.371 provides another
exception to the general rule by allowing “evidence of all relevant facts and
circumstances that would assist the trier of fact in determining whether the actor
committed the offense . . . , including testimony or evidence regarding the nature
of the relationship between the actor and the alleged victim.” Tex. Code Crim.
Proc. art. 38.371(b).

We discussed the importance of evidence regarding the nature of the family
relationship under article 38.371 in Gonzalez v. State, 541 S.W.3d 306, 312 (Tex.
App.—Houston [14th Dist.] 2017, no pet.). Noting that complainants in family
violence cases often do not testify at trial, we stated that the nature of the
relationship between the actor and complainant may be relevant to, among other
things, confirm the complainant’s initial—and later recanted—statements to police,
or to explain the complainant’s unwillingness to cooperate with law enforcement
or prosecution. Id. Allowing the State to present this evidence at trial is thus
rationally related to a legitimate state interest—to (1) show why someone who was
allegedly subjected to domestic violence may be uncooperative with law
enforcement, (2) confirm the veracity of a complainant’s initial but later recanted
statements to police, and (3) contextualize the nature of the family relationship. See
id.
3
For example, “Rule 404(b) sets out an illustrative, not exhaustive, list of exceptions to
the prohibition against admitting evidence of extraneous offenses including ‘proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’”
Harris, 475 S.W.3d at 401 (quoting Daggett v. State, 187 S.W.3d 451 n.13 (Tex. Crim. App.
2005)).

9
 Appellant contends that article 38.371 is unconstitutional because it renders
a trial fundamentally unfair by violating the general prohibition against admitting
evidence of extraneous offenses “without expressly requiring a balancing test or
any of the other procedural safeguards found in similar evidentiary statutes.”
According to appellant, article 38.371 implicitly allows the admission of
extraneous offense evidence “expressly prohibited by Rule 404(b).” But the statute
expressly states that it “does not permit the presentation of character evidence that
would otherwise be inadmissible under the Texas Rules of Evidence or other
applicable law.” Tex. Code Crim. Proc. art. 38.371(c). Thus, the statute
incorporates the procedural safeguards in the Rules of Evidence. For example, a
defendant is entitled to a balancing test under Rule 403 upon request. Tex. R. Evid.
403; Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (“Once a
Rule 403 objection as to prejudice versus probative value is invoked, the trial judge
has no discretion as to whether or not to engage in the balancing test required by
that rule.”).

A defendant is also entitled under Rule 404(b) to notice upon request of
whether the State intends to use evidence of crimes, wrongs, or other acts. Tex. R.
Evid. 404(b)(2). We previously held that article 38.371 does not conflict with Rule
404(b) and is not “an end-run around Rule 404(b).” Gonzalez, 541 S.W.3d at 312.
Rule 404(b) provides a non-exhaustive list of evidence of crimes, wrongs, or other
acts admissible for purposes other than to prove a person’s character. Tex. R. Evid.
404(b) (“This evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.”). Article 38.371 merely provides another purpose—
to admit evidence of the nature of the relationship between the actor and
complainant in family violence cases. See, e.g., Fernandez v. State, 597 S.W.3d

10
546, 566 (Tex. App.—El Paso 2020, pet. ref’d) (“[A]rticle 38.371 shows on its
face a legislative determination that ‘testimony or evidence regarding the nature of
the relationship between the actor and the alleged victim’ is automatically one of
the contemplated and non-exhaustive ‘relevant facts and circumstances’ under the
article.”).

We conclude that article 38.371 does not violate the Due Process Clauses of
the Fifth and Fourteenth Amendments. The statute is rationally related to a
legitimate state interest—to allow the State to present evidence (1) explaining why
a complainant in a domestic violence case may be uncooperative, (2) confirming
the veracity of a complainant’s initial but later recanted statements to police, and
(3) contextualizing the nature of the relationship. And the statute includes proper
procedural safeguards to prevent the admission of evidence of the person’s
character in violation of his due process rights. We overrule appellant’s first issue.

II. Admissibility of the Extraneous Offense Evidence

In his second issue, appellant contends that the trial court misapplied article
38.371 and admitted evidence of the April 2017 extraneous offense in violation of
Rule 404(b). Defense counsel objected to the admissibility of the evidence under
Rule 404(b). The State argued the evidence was admissible under article 38.371
and Rule 404(b) “to rebut a defensive theory of fabrication and the fact that
identity ha[d] been called into question.”

Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character to show that the person acted in conformity with that character
when allegedly committing the charged offense. Tex. R. Evid. 404(b)(1);
Gonzalez, 541 S.W.3d at 310. Evidence of other offenses, however, may be
admissible when the evidence is relevant to a fact of consequence in the case.
Gonzalez, 541 S.W.3d at 310. Evidence of other crimes or wrongs may be
11
admissible if it tends to establish some elemental fact, such as identity, intent, or
knowledge; tends to establish some evidentiary fact, such as motive, opportunity,
plan, or preparation, leading inferentially to an elemental fact; or rebuts a defensive
theory by showing, e.g., absence of mistake or lack of accident. Id.; see also Tex.
R. Evid. 404(b)(2). If the trial court determines the offered evidence has
independent relevance apart from or beyond character conformity, the trial court
may admit the evidence and instruct the jury the evidence is limited to the specific
purpose the proponent advocated. Gonzalez, 541 S.W.3d at 310. Because trial
courts are best suited to decide these substantive admissibility questions, we
review admissibility rulings for an abuse of discretion. Id. We affirm admissibility
rulings when they are within the zone of reasonable disagreement. Id.

The defensive theory at trial was based on complainant’s credibility and the
identity of the person who caused her injuries. During opening statement, defense
counsel said that the case would “come down to the credibility of the victim . . .
and the number and different numbers of stories and versions she has given of all
of this. [W]e expect the evidence is going to show that she has made numerous
recantations . . . and accused different people.” During cross-examination, defense
counsel focused on complainant’s credibility and her numerous recantations.
Defense counsel also tried to establish that complainant’s injuries were self-
inflicted or caused by others.

We have already held that a trial court can admit evidence of an extraneous
offense under article 38.371 on the basis that “the trial court could have concluded
that the evidence was admissible to refute [a] defensive theory that [the
complainant] fabricated the assault or that no assault occurred.” Id. at 312.
Evidence regarding the nature of the relationship between the actor and
complainant also may be relevant to confirm the complainant’s initial—and later

12
recanted—statements to police or to explain the complainant’s unwillingness to
cooperate with law enforcement or prosecution. Id.

Evidence regarding the April 2017 assault goes directly to appellant’s
defensive theory that complainant was not credible and appellant did not assault
complainant. See id. Even though complainant testified for the prosecution in this
case, the trial court reasonably could have concluded that the jury needed to
understand the nature of the relationship between complainant and appellant to
contextualize why complainant would change her story so many times.
Complainant explained during trial that she loved appellant but was afraid he
would kill her. Evidence of the April 2017 attack helps to put complainant’s
actions, recantations, and testimony regarding the charged offense into context.4

Admitting evidence of the prior assault, moreover, did not contravene Rule
404(b)’s prohibition against use of character conformity or propensity evidence
because the State did not rely on the evidence to convince the jury of appellant’s
guilt on the basis that appellant was acting “in accordance with [his] character.”
See id. The trial court gave a limiting instruction to the jury that it could only
consider the extraneous offense evidence for the limited purposes of identity to
rebut a defensive theory and to show the previous and subsequent relationship of
appellant and complainant. Tex. R. Evid. 105(a).

We conclude that it is at least within the zone of reasonable disagreement
that evidence of the April 2017 offense was admissible for the noncharacter
conformity purposes of (1) rebutting appellant’s defensive theory that complainant

4
Appellant contends that because the State had already put on evidence of two
allegations of domestic violence, there was no need for the State to put on evidence of a third
instance. But complainant recanted both the charged offenses before she changed her mind and
agreed to testify against appellant. The trial court reasonably could have concluded that the jury
needed further context in light of these circumstances.

13
fabricated her allegations against appellant and her injuries were not caused by him
and (2) explaining complainant’s recantations. See Gonzalez, 541 S.W.3d at 312–
13. We overrule appellant’s second issue.

III. Admissibility of Disciplinary Records

In his third issue, appellant challenges the trial court’s admission of the
disciplinary records attached to the pen pack from appellant’s previous conviction,
contending it violated his Sixth Amendment right of confrontation. The Sixth
Amendment provides that in all criminal prosecutions, the accused shall have the
right to be confronted with the witnesses against him. U.S. Const. amend. VI. In
Crawford v. Washington, the Supreme Court held that this right applies not only to
in court testimony, but also to out of court statements that are testimonial in nature.
541 U.S. 36, 51 (2004).

The Confrontation Clause forbids the admission of testimonial hearsay
unless the declarant is unavailable to testify and the defendant had a prior
opportunity to cross-examine the declarant. Id. at 68. Whether a particular out of
court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008). It was the State’s burden, as the proponent of the
challenged evidence, to establish its admissibility. Id. We review the trial court’s
ruling admitting the evidence under a bifurcated standard, giving deference to the
court’s findings regarding any pertinent historical facts but reviewing de novo the
court’s application of the law to those facts. Wall v. State, 184 S.W.3d 730, 742–43
(Tex. Crim. App. 2006).

The State contends that the disciplinary records qualify as business records
containing sterile, routine recitations that are not inadmissible hearsay. Regardless
of whether they qualify for admission under the rules of evidence, documents kept
in the regular course of business are not admissible under the Confrontation Clause
14
“if the regularly conducted business activity is the production of evidence for use
at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009); see also Grey
v. State, 299 S.W.3d 902, 907–08 (Tex. App.—Austin 2009, pet. ref’d). Under
Melendez-Diaz, a prison disciplinary report made in anticipation of its
prosecutorial use would be testimonial even if it contained only sterile, routine
recitations of official findings or unambiguous factual matters. Grey, 299 S.W.3d
at 910.

The State contends that the disciplinary records were made for an
administrative purpose, not for use in trial, and thus are not testimonial. Prior to
Melendez-Diaz, the Court of Criminal Appeals held that boilerplate language that
does not contain testimonial statements, narratives of specific events, or written
observations is admissible. Smith v. State, 297 S.W.3d 260, 276 (Tex. Crim. App.
2009). However, documents that went “beyond a sterile description,” including
descriptions of a defendant’s offenses, contained testimonial statements that were
inadmissible under the Confrontation Clause. Id. at 277. The State concedes that
some of the references to disciplinary violations admitted in this case “appear
problematic” under Smith because “they seem more descriptive and arguably
contain brief narrative accounts.” But, according to the State, the disciplinary
records are admissible under the Supreme Court’s more recent pronouncement in
Melendez-Diaz because the admitted records were not made in anticipation of
prosecutorial use.

We need not decide whether the disciplinary records are admissible under
Melendez-Diaz. Even if they are not, we need not reverse the trial court’s judgment
if we conclude beyond a reasonable doubt that the error did not contribute to
appellant’s punishment. See id. Appellant contends that there is no rational basis
for us to reach that conclusion because the jury assessed the maximum punishment

15
allowed by law. We disagree.

The punishment phase of trial was very brief. During her opening statement,
the prosecutor asked the jury to “consider everything that you’ve heard in guilt, as
well as the evidence that the State is going to present here in punishment.” She also
told the jury it could consider the April 2017 assault and appellant’s prior
convictions in assessing punishment. Although the trial court admitted the pen
pack with the disciplinary records, the prosecutor did not discuss its contents at the
time of its admission. During closing argument, the prosecutor focused on
appellant’s prior convictions and the fact that appellant’s sentence ended in March
2017. She emphasized that it took appellant 21 days after being released from
prison “to celebrate by breaking [complainant’s] face.” She mentioned the pen
pack once, referencing appellant’s assault of two other inmates, as discussed in the
disciplinary records. But she asked the jury to assess the maximum punishment
based on his prior convictions for theft and aggravated robbery. And she closed
with, “[P]art of why I am begging you to give him 20 years, is to give
[complainant and her daughter] a chance to live their lives [free] of fear from him
and what he would do next.”

The disciplinary records thus were never emphasized by the State, and the
State concentrated its punishment arguments on appellant’s 2017 assault of
complainant shortly after his release from prison and his prior convictions for theft
and aggravated robbery. Given the record before us, we conclude beyond a
reasonable doubt that appellant was not harmed by the introduction of the
disciplinary records attached to appellant’s pen pack. See id. We overrule
appellant’s third issue.

Conclusion

We conclude that on its face, article 38.371 does not violate the Due Process
16
Clauses of the Fifth and Fourteenth Amendments. We further conclude that the
trial court did not abuse its discretion in admitting evidence of an extraneous
offense, and any error in admitting disciplinary records was harmless under the
facts of this case. We affirm the judgment of the trial court.

/s/ Frances Bourliot
Justice

Panel consists of Justices Wise and Bourliot and Visiting Justice Massengale.
Publish — TEX. R. APP. P. 47.2(b).

17