Stanley Lucius Atnipp v. State , 517 S.W.3d 379 ( 2017 )

Opinion filed April 20, 2017
In The
Eleventh Court of Appeals
__________
No. 11-14-00287-CR
__________
STANLEY LUCIUS ATNIPP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR40673
OPINION
The jury found Stanley Lucius Atnipp guilty of the offense of cruelty to a
nonlivestock animal and assessed punishment at confinement for two years. See
TEX. PENAL CODE ANN. § 42.092(b)(2) (West 2016). However, the jury
recommended that the trial court suspend the imposition of the sentence and place
Appellant on community supervision. The trial court agreed, suspended the
imposition of the sentence, and placed Appellant on community supervision for four
years. Appellant asserts seventeen issues on appeal. We affirm.
I. The Charged Offense
The grand jury indicted Appellant, in relevant part, for cruelty to a
nonlivestock animal. A person commits the offense of cruelty to a nonlivestock
animal when he “kills, administers poison to, or causes serious bodily injury to an
animal” without the owner’s effective consent. Id. This particular variation of the
offense is a state jail felony, but it is punishable as a third-degree felony if a deadly
weapon is used or exhibited during the commission of the offense. See id.
§ 42.092(c), § 12.35(c)(1) (West Supp. 2016).
II. Evidence at Trial
Appellant walked out of his home one fall day to take his Chihuahua outside.
There, he encountered three dogs—a boxer, a German shepherd, and a black
Labrador retriever mix—that had escaped their owners’ yard and were wandering
the neighborhood. Lori Winter, a neighbor, had found the three dogs and was
attempting to use her pickup to lead them back to their owners’ yard. When the three
dogs were approximately fifty feet from Appellant’s home, they apparently noticed
Appellant and his Chihuahua in Appellant’s yard and “trotted” toward them. Winter
parked her pickup and called the three dogs.
According to Winter, Appellant immediately picked up his Chihuahua and
walked into his house. Appellant then came back outside and said to Winter, “I will
shoot you and the dogs.” Winter told Appellant that she was trying to help her
neighbors get their three dogs back home. She then saw what she believed to be a
pistol in Appellant’s hand. Winter testified that Appellant pointed the pistol at her,
which caused her to “[h]it the ground” behind a bush. She then heard one or two
gunshots, saw the German shepherd and Labrador run away, and saw the boxer
stumble into the street and die. Winter testified that the boxer had not acted
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aggressively, barked, or snarled and that the boxer was approximately ten feet away
from Appellant when Appellant shot the boxer.
Appellant testified on his own behalf that the boxer acted aggressively toward
him and his dog and that he was concerned for the safety of his Chihuahua.
Appellant told Winter, “Get your dogs out of my yard,” to which she responded,
“They’re not my dogs.” When the dogs had approached to within arm’s reach of
Appellant, he picked up his Chihuahua, went inside his home, and shut the door.
Once inside, Appellant put his Chihuahua down. Then, he said, “[i]t dawn[ed] on
[him that he has] got a lady out front,” so he grabbed his shotgun from next to the
door and went back outside. At that time, he could only see the boxer and the
German shepherd. Appellant claimed that the dogs moved toward him, so he fired
at the boxer and tried to hit its back legs to scare it away but not to kill it. The boxer
was twenty to thirty feet away from Appellant when he fired the shotgun; Appellant
admitted that the boxer died from the gunshot wound.
III. Issues Presented
In his first of seventeen issues, Appellant asserts that the trial court erred when
it denied his motion for instructed verdict because the State failed to meet its burden
of proof to disprove the depredation exception. In Issues Two through Five,
Appellant asserts that the trial court erred when it denied his request for jury
instructions on necessity, depredation, property, and personal property, respectively.
In his sixth issue, Appellant asserts that the trial court erred when it instructed the
jury, over his objection, that depredation control did not apply to his case. In Issues
Seven and Eight, Appellant asserts that the trial court erred when it permitted the
State to impeach a witness with a specific instance of misconduct in violation of
Rules 401 and 608(b) of the Texas Rules of Evidence. In Issues Nine through
Sixteen, Appellant asserts that the trial court erred when it admitted evidence of
various extraneous offenses under exceptions to Rules 404(b) and 403 of the Texas
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Rules of Evidence. In his seventeenth issue, Appellant asserts that the trial court
erred when it failed to submit instructions to the jury to restrict the jury’s
consideration of extraneous offenses.
IV. Analysis of Issues One through Six
A. Issue One: The State adduced sufficient evidence that the
depredation exception did not apply in this case.
Appellant challenges the trial court’s denial of his motion for directed verdict.
He contends that the State adduced insufficient evidence to prove beyond a
reasonable doubt that he was not engaged in wildlife or depredation control, an
exception to the application of Section 42.092. PENAL § 42.092(f)(1)(B). As we
explain below, we disagree with Appellant because the State adduced sufficient
evidence that he was not engaged in wildlife depredation control.
1. Standard of Review
We review a challenge to the trial court’s denial of a motion for an instructed
verdict under a sufficiency analysis. See Madden v. State, 799 S.W.2d 683, 686
(Tex. Crim. App. 1990) (“A challenge to the trial judge’s ruling on a motion for an
instructed verdict is in actuality a challenge to the sufficiency of the evidence to
support the conviction.”). We review the sufficiency of the evidence under the
standard of review set forth in Jackson v. Virginia. See Jackson v. Virginia, 443
U.S. 307 (1979); see also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When, as here, the
statute contains an exception to the offense, the State must “prove beyond a
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reasonable doubt that the defendant or defendant’s conduct does not fall within the
exception.” PENAL § 2.02(b) (West 2011).
In our review, we must presume that the factfinder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is free to draw reasonable
inferences from basic facts to ultimate ones. Sanders v. State, 119 S.W.3d 818, 820
(Tex. Crim. App. 2003). Further, the factfinder is the sole judge of the weight and
credibility of the evidence; we may not reevaluate the weight and credibility of the
evidence so as to substitute our own judgment for that of the factfinder. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We also measure the sufficiency
of the evidence by the elements of the offense as defined in a hypothetically correct
jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge is one that “accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the State’s burden
of proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.
2. Depredation Control
It is an exception to the application of Section 42.092 that the conduct engaged
in is a generally accepted and otherwise lawful “form of conduct occurring solely
for the purpose of or in support of . . . wildlife management, wildlife or depredation
control, or shooting preserve practices as regulated by state and federal law.” PENAL
§ 42.092(f)(1)(B). Appellant argues that the State failed to prove that he was not
engaged in depredation control. Under the statute, “‘Depredation’ means the loss of
or damage to agricultural crops, livestock, poultry, wildlife, or personal property.”
TEX. PARKS & WILD. CODE ANN. § 71.001(10) (West Supp. 2016) (emphasis added);
see PENAL § 42.092(a)(5) (providing that the definition of depredation is the same
as that in Section 71.001 of the Texas Parks and Wildlife Code).
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Appellant’s counsel argued that Appellant had engaged in depredation control
when Appellant shot the boxer to protect his personal property, namely his
Chihuahua. While Appellant’s characterization of his Chihuahua as personal
property is supported by Texas law, the State and Appellant disagree as to the
applicability of the depredation control exception to “dogs” or “domestic dogs.”
But even if we assume, without deciding, that Section 42.092 applies to
depredation control against “dogs” or “domestic dogs”—as Appellant advocates—a
reasonable factfinder could conclude that Appellant was not attempting to prevent
“loss of or damage to” his Chihuahua when he shot the boxer. Winter testified that
Appellant had put his dog inside the house prior to coming back outside and shooting
the boxer. Additionally, Appellant testified that, as the three dogs approached him,
he picked up his Chihuahua, walked into his home, and put his Chihuahua safely
inside his home. Appellant said that, after he put the Chihuahua down, “[i]t
dawn[ed] on [him that he has] got a lady out front,” so he grabbed his shotgun and
went back outside. However, he only did this after he placed the Chihuahua inside
the house and, thus, after he had eliminated any risk of damage to his dog. The jury
chose not to believe his claim that he was protecting his dog. The jury, as the trier
of fact, was the sole judge of the credibility of the witnesses and of the weight to be
given their testimony. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art.
38.04 (West 1979). After a review of the record in the light most favorable to the
verdict, we hold that a reasonable factfinder could have concluded beyond a
reasonable doubt that Appellant did not shoot the boxer to prevent loss of or damage
to his personal property. See PENAL § 42.092(a)(5), (b)(2), (f)(1)(B); PARKS &
WILD. § 71.001(10); see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778.
We overrule Appellant’s first issue.
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B. Issues Two through Five: The trial court did not err when it charged
the jury on the definition of property, refused to provide the
requested instructions for necessity and depredation, and declined
to define that personal property includes a dog.
In Issues Two through Five, Appellant contends that the trial court erred when
it denied his request to instruct the jury on the defense of necessity, refused to give
definitions for the terms “depredation” and “property,” and denied his request to
instruct the jury that dogs are personal property. When we review a jury-charge
issue, we first decide whether error exists, and if it does, then we conduct a harm
analysis. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
To be entitled to a necessity instruction, there must have been evidence that
Appellant reasonably believed his conduct was immediately necessary to avoid
imminent harm, and he must have admitted to the conduct charged. PENAL § 9.22;
Young v. State, 991 S.W.2d 835, 838–39 (Tex. Crim. App. 1999). A trial court must
give a requested instruction on every defensive issue that is raised by the evidence.
See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). A defensive
issue is raised by the evidence if there is some evidence, regardless of its source, on
each element of a defense that, if believed by the jury, would support a rational
inference that the element is true. See Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.
Crim. App. 2007). Appellant testified that he placed his own dog in his house and
then went outside with his shotgun and shot the boxer. He said that he was concerned
about a woman out there, but there was no evidence from any source that the dogs
threatened the woman or that Appellant’s conduct was immediately necessary to
protect her or anyone else from an imminent attack by one or more of the dogs. See
Henley v. State, 493 S.W.3d 77, 89–90 (Tex. Crim. App. 2016) (explaining the terms
“immediately necessary” and “imminent”). Therefore, the trial court did not err
when it refused to give a necessity instruction.
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The trial court also did not err when it refused to give the definition of
depredation, which is defined as “loss of or damage to agricultural crops, livestock,
poultry, wildlife, or personal property.” See PARKS & WILD. § 71.001(10). There
was no evidence that Appellant had suffered a loss to crops, livestock, poultry,
wildlife, or personal property; Appellant’s dog was in the house when he shot the
boxer. Appellant’s conduct did not involve depredation control, as we further
explain in Section “IV. C” below. In addition, there was no evidence that the boxer
had threatened anyone or anything or caused any damage prior to the incident in this
case. Moreover, there was no evidence that would have supported the issuance of a
permit for depredation control, and there was no evidence that a permit had been
issued.
Appellant’s complaint about the request for a definition of “property” as
“tangible or intangible personal property” is moot because the trial court gave that
instruction.
Finally, on the issue of a dog being tangible personal property, such a
definition is not present in the Parks and Wildlife Code, and a “trial court may not
include an instruction that focuses the jury’s attention on a specific type of evidence
that may support a finding of an element of an offense.” Kirsch v. State, 357 S.W.3d
645, 651 (Tex. Crim. App. 2012). The trial court properly refused to include an
instruction on a domestic dog being personal property because depredation was not
an issue and because such an instruction would have been an improper comment on
the evidence. See Kirsch, 357 S.W.3d at 651 (explaining that, if a jury-charge
instruction “is not derived from the [penal] code, it is not ‘applicable law’” under
Article 36.14 of the Texas Code of Criminal Procedure (alteration in original)
(quoting Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007)). Moreover,
such a definition is unnecessary where the trial court included the definition of owner
and property in the jury charge. The jury would have had common knowledge and
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experience that a dog is an owner’s property. We overrule Appellant’s second, third,
fourth, and fifth issues.
C. Issue Six: The trial court did not err when it instructed the jury that
no laws regarding state or federal wildlife management,
depredation control, or shooting preserve practices applied to this
case.
Appellant asserts that the trial court erred when it instructed the jury, over his
objection, that “there are no laws of wildlife management, wildlife or depredation
control, or shooting preserve practices as regulated by state and federal law that
apply to this case.” We again disagree with Appellant. As we outlined in the
previous section, when we review a jury-charge issue, we first decide whether error
exists. See Ngo, 175 S.W.3d at 743.
The trial court’s charge to the jury must set forth the law applicable to the
case. CRIM. PROC. art. 36.14. Therefore, the trial court must instruct the jury on
each element of the offense or offenses charged and include in its charge each
statutory definition that affects the meaning of an element of the offense.
Murphy v. State, 44 S.W.3d 656, 661 (Tex. App.—Austin 2001, no pet.). The
statutory definition of “[e]lement of offense” includes “the negation of any exception
the offense.” PENAL § 1.07(a)(22)(D); see LaBelle v. State, 692 S.W.2d 102, 105
(Tex. Crim. App. 1985); Blackmon v. State, 644 S.W.2d 738, 741 (Tex. Crim. App.
[Panel Op.] 1983), overruled in part on other grounds by Smith v. State, 739 S.W.2d
848, 853 (Tex. Crim. App. 1987). An exception must be defined within the
statute and specifically prefaced with the phrase, “It is an exception to the application
of . . . .” PENAL § 2.02(a); see Ex parte Davis, 542 S.W.2d 192, 197 (Tex. Crim.
App. 1976).
Section 42.092 states that:
It is an exception to the application of this section that the
conduct engaged in by the actor is a generally accepted and otherwise
lawful . . . form of conduct occurring solely for the purpose of . . .
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wildlife management, wildlife or depredation control, or shooting
preserve practices as regulated by state and federal law.
PENAL § 42.092(f)(1)(B). The trial court properly instructed the jury on the
Section 42.092 exception as an element of the offense. The Section 42.092
exception references “state and federal law.” The trial court subsequently instructed
the jury “that there are no laws of wildlife management, wildlife or depredation
control, or shooting preserve practices as regulated by state and federal law that
apply to this case.” The trial court did not err when it instructed the jury. We
overrule Appellant’s sixth issue.
V. Analysis of Issues Seven Through Sixteen
In Issues Seven through Sixteen, Appellant challenges the trial court’s
decision to admit certain testimony given by five witnesses. In Issues Seven and
Eight, Appellant argues that the trial court erred when it admitted certain testimony
given by Charles Harris that violated Rules 401 and 608(b) of the Texas Rules of
Evidence. In Issues Nine through Sixteen, Appellant asserts that the trial court
abused its discretion when it admitted certain testimony from Kelly Brown, David
Shaw, Russell Potter, and Donna Smith that violated Rules 404(b) and 403 of the
Texas Rules of Evidence. We will first outline the standard of review and then
address these issues in turn.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A
trial court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
A trial court’s ruling on extraneous offenses under Rule 404(b) will be upheld 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
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outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
of the jury. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. Issue Seven: Rule 401
Appellant asserts in his seventh issue that the trial court abused its discretion
when it allowed the State to impeach Harris with a specific instance of misconduct,
not a criminal conviction, in violation of Rule 401 of the Texas Rules of Evidence.
This objection was properly preserved for appellate review because Appellant
objected to the admission of Harris’s testimony and the trial court ruled on the
objection. See TEX. R. APP. P. 33.1. The State argues that, because any evidence
“bearing on credibility is relevant,” the trial court’s ruling was correct.
A witness may be cross-examined on any relevant matter, including
credibility. TEX. R. EVID. 611(b). Evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence” and “the
fact is of consequence in determining the action.” TEX. R. EVID. 401. Thus, a
witness may be cross-examined on an issue that is probative of his credibility. See
Perry v. State, 236 S.W.3d 859, 867 (Tex. App.—Texarkana 2007, no pet.).
Additionally, a party has the right to pursue all avenues of cross-examination
reasonably calculated to expose bias, motive, or interest for the witness to testify;
therefore, the scope of appropriate cross-examination is necessarily broad.
Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
Here, the State asked on cross-examination about the circumstances
surrounding Harris’s departure from his previous job at the Midland County
constable’s office. The State wanted to ask Harris “specifically about the fact that
[Harris] tampered with physical evidence and tampered with records,” which caused
him to resign from his position. The State argued that such evidence went directly
to Harris’s credibility as a witness. We agree. The test for relevance under Rule 401
does not hinge on, nor is it dictated by, the fact that the proffered evidence stems
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from a prior act, as Appellant would have us hold. See TEX. R. EVID. 401. We
conclude that the State’s questioning sought to attack Harris’s credibility and, thus,
was relevant under Rule 401. We overrule Appellant’s seventh issue.
C. Issue Eight: Rule 608(b)
In his eighth issue, Appellant asserts that the trial court erred when it permitted
the State’s impeachment of Harris with a specific instance of misconduct, not a
criminal conviction, in violation of Rule 608(b) of the Texas Rules of Evidence.
Rule 608(b) deals with a witness’s character for truthfulness or untruthfulness.
To preserve a complaint for appellate review, the record must show that a
specific and timely complaint was made to the trial court and that the trial court ruled
on the complaint. TEX. R. APP. P. 33.1. The objecting party must state the grounds
to support the requested ruling “with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the context.”
Id. In addition, a party fails to preserve error when the contention urged on appeal
does not comport with the specific complaint made to the trial court. See Lovill v.
State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009).
Here, Appellant objected when the State broached the circumstances
regarding Harris’s departure from the constable’s office. Specifically, Appellant
objected twice on grounds of relevance, i.e., a Rule 401 objection, which we dealt
with as part of Appellant’s seventh issue. Appellant also indicated that Harris could
not “be impeached with that” line of questioning. Beyond that, however, there was
no mention of Rule 608. Additionally, it does not appear that the trial court
understood Appellant’s objection to be made on the basis of a Rule 608 complaint.
We conclude that Appellant did not make the trial court aware of his Rule 608
complaint by either specifically lodging a Rule 608 objection or by the context of
the discussion. Therefore, this issue was not preserved for review. TEX. R.
APP. P. 33.1. Accordingly, we overrule Appellant’s eighth issue.
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D. Issues Nine through Sixteen: Testimony of Kelly Brown, David
Shaw, Russell Potter, and Donna Smith
In Issues Nine through Sixteen, Appellant argues that the trial court abused its
discretion when it admitted certain testimony of Brown (Issues Nine and Ten), Shaw
(Issues Eleven and Twelve), Potter (Issues Thirteen and Fourteen), and Smith (Issues
Fifteen and Sixteen). Specifically, Appellant asserts that the trial court admitted
testimony from each witness in violation of Rule 404(b) and Rule 403 of the Texas
Rules of Evidence.
1. Rule 404(b)
Rule 404(b) of the Texas Rules of Evidence 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). Rule 404(b)(2) provides, however, that 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).
In Daggett v. State, the Court of Criminal Appeals shed light on the
inadmissibility of extraneous offense evidence subject to Rule 404(b). 187 S.W.3d
444, 453–54 (Tex. Crim. App. 2005). Specifically, the court addressed the situation
of how and when Rule 404(b) applies when a defendant puts his character at issue:
When a witness makes a broad statement of good conduct or
character on a collateral issue, the opposing party may cross-examine
the witness with specific instances rebutting that false impression, but
generally may not offer extrinsic evidence to prove the impeachment
acts. Where, as here, the defendant’s statement of good conduct is
directly relevant to the offense charged . . . the opponent may both
cross-examine the defendant and offer extrinsic evidence rebutting the
statement. This is not impeachment on a collateral matter. The
statement of good conduct goes to the “heart” of the matter.
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Id. at 453 n.24. Here, Appellant contends that the trial court improperly admitted
testimony from Brown, Shaw, Potter, and Smith because their testimony did not fall
within Daggett’s framework. We disagree with Appellant’s argument as to Brown’s
testimony but agree as to testimony from Shaw, Potter, and Smith. We will address
these two sets of testimony in turn.
2. Issue Nine: Rule 404(b) and Brown’s Testimony
In his ninth issue, Appellant asserts that the trial court abused its discretion
when it admitted testimony from Brown in violation of Rule 404(b). The State
sought to elicit testimony from Brown about an incident in which Appellant told
Brown that he was going “to shoot [her] dog” because the dog was in Appellant’s
yard. Brown testified that her dog had not barked at Appellant, threatened Appellant,
or been close to Appellant. Appellant appeared to be angry during the incident, and
Brown believed that Appellant was going to retrieve a firearm from his home to
follow through with his threat. When Brown pleaded, “Please don’t shoot my dog,”
Appellant said, “No, [your dog is] on my property.”
The State argued that the evidence showed Appellant’s motive in this case to
shoot the boxer and rebutted Appellant’s claim that the boxer acted aggressively
toward Appellant. The State also argued that Brown’s testimony was admissible
under the “doctrine of chances.” Evidence offered for a purpose other than to show
conformance with character is explicitly admissible under Rule 404(b)(2).
We agree with the State that the evidence tended to rebut the defensive theory
that the boxer was aggressive and attacked Appellant, thereby justifying Appellant’s
actions. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)
(rebutting a defensive theory is “one of the permissible purposes for which evidence
may be admitted under Rule 404(b)”). Additionally, Brown’s testimony went to the
heart of the issue—whether the boxer acted aggressively toward Appellant, thereby
justifying Appellant’s use of force—and did not violate Rule 404(b). See Daggett,
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187 S.W.3d at 453 n.24. Therefore, the trial court did not abuse its discretion in
admitting the evidence.1 We overrule Appellant’s ninth issue.
We note that Appellant argues that the evidence was not admissible under the
“doctrine of chances” or to show motive, citing authority to support his argument.
Having concluded that the evidence was admissible under Rule 404(b) for the
reasons mentioned above, we need not address those arguments. See Hayden v.
State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009) (stating that a trial court’s ruling
should be upheld if it is reasonably supported by the record and is correct under any
theory of law).
3. Issues Eleven, Thirteen, and Fifteen: Rule 404(b) and Testimony
from Shaw, Potter, and Smith
Appellant argues in his eleventh, thirteenth, and fifteenth issues that
Rule 404(b) was violated when Shaw testified that Appellant chased Shaw’s teenage
sons through the neighborhood, trespassed on Shaw’s property, and damaged
Shaw’s sprinklers during the chase (Issue Eleven); when Potter testified that
Appellant blocked Potter’s driveway and confronted Potter’s wife about their
teenage sons recklessly driving a golf cart in Appellant’s neighborhood (Issue
Thirteen); and when Smith testified that she heard gunshots, saw Appellant shoot
chickens, and saw Appellant pile them on the road in front of his residence (Issue
Fifteen). We hold that none of these testimonies were permissible under Rule 404(b)
and that they did not logically relate to the impeachment of the testimony given by
Appellant during his direct examination.
The State asserts that Issues Eleven and Fifteen “were not preserved” for
review because Appellant did not object when the State asked Appellant on cross-
examination whether he was following the rules when he chased Shaw’s sons or
We note that we must still review the trial court’s ruling under the guise of Rule 403, which
1
Appellant correctly asserts as part of his tenth issue. We will address the Rule 403 analysis as applicable
to Brown’s testimony below, following our outline of Rule 403.
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when he shot his neighbor’s chickens. The Court of Criminal Appeals has held that
erroneously admitting evidence “will not result in reversal when other such evidence
was received without objection, either before or after the complained-of ruling,”
whether introduced by the defendant or the State. See Coble v. State, 330 S.W.3d
253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex.
Crim. App. 1998)). However, Appellant’s testimony during cross-examination was
not the same as the complained-of testimony of Shaw and Smith. As such,
Appellant’s eleventh and fifteenth issues were properly preserved when his trial
attorney objected to Shaw’s testimony and Smith’s testimony as inadmissible and
related to an irrelevant extraneous offense.
“If a defendant objects on the grounds that the evidence is not relevant,
violates Rule 404(b), or constitutes an extraneous offense, the State must show that
the uncharged misconduct evidence has relevance apart from showing character.”
Sandoval v. State, 409 S.W.3d 259, 298 (Tex. App.—Austin 2013, no pet.). Here,
Appellant timely and properly objected to Shaw’s testimony, and the State failed to
demonstrate the solicited testimony’s admissibility. While the State argues in its
brief that Shaw’s testimony was admissible because it sought to impeach Appellant’s
earlier direct examination that he was a “rule follower,” this argument is not
compelling. Shaw testified that Appellant once chased Shaw’s three sons with his
pickup, trespassed onto Shaw’s property, and damaged Shaw’s sprinkler system.
Appellant’s alleged chasing incident is not related to his ability to follow rules;
indeed, Appellant could have followed Shaw’s sons without having broken a single
rule or law.
For similar reasons, the trial court abused its discretion when it admitted
testimony from Potter and Smith. Rule 404(b) permits the admittance of extraneous
offenses or bad acts “if such evidence logically serves to make more or less probable
an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or
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defensive evidence that undermines an elemental fact.” Martin v. State, 173 S.W.3d
463, 466 (Tex. Crim. App. 2005). However, evidence that merely proves “the
defendant acted in conformity with the character that he demonstrated when
committing the previous bad act” is expressly prohibited by 404(b). Sanders v. State,
No. 11-12-00045-CR, 2014 WL 2619398, at *3 (Tex. App.—Eastland Jan. 24, 2014,
pet. ref’d) (mem. op., not designated for publication).
Potter testified that Appellant and Potter’s wife once got into a verbal
altercation over the Potters’ children driving around the neighborhood in golf carts.
Whereas, Smith testified that, five years ago, a man, who she believed might be
Appellant, shot a couple of chickens near Appellant’s house. Appellant did not open
the door to such testimony when he testified during direct examination that he was
a “rule follower.” Potter’s and Smith’s testimony addressed extraneous acts that did
not go to the heart of the issue and were not logically related to Appellant’s case.
Instead, these extraneous acts were aimed to discredit Appellant by demonstrating
that he had a bad character or that he had a propensity for committing bad acts. This
type of propensity evidence is the exact type of evidence that is expressly prohibited
by Rule 404(b). Sanders, 2014 WL 2619398, at *3. Because the admitted
evidence—as challenged by Appellant in Issues Eleven, Thirteen, and Fifteen—
sought to prove extraneous acts that did not go to the “heart of the matter,” we hold
that the trial court abused its discretion when it admitted the evidence.
4. Issues Ten, Twelve, Fourteen, and Sixteen: Rule 403
Appellant argues in his tenth, twelfth, fourteenth, and sixteenth issues that,
even if the testimony of Brown, Shaw, Potter, and Smith, respectively, was
otherwise admissible, the testimony was improperly admitted by the trial court in
violation of Rule 403. Rule 403 of the Texas Rules of Evidence provides that
relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue
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delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403; see
Henley, 493 S.W.3d at 93. A trial court is presumed to have engaged in the required
balancing test when Rule 403 is invoked. Williams v. State, 958 S.W.2d 186, 195–
96 (Tex. Crim. App. 1997). An analysis under Rule 403 includes, but is not limited
to, the following factors: (1) the probative value of the evidence, (2) the potential to
impress the jury in some irrational yet indelible way, (3) the time needed to develop
the evidence, and (4) the proponent’s need for the evidence. Hernandez v. State,
390 S.W.3d 310, 324 (Tex. Crim. App. 2012).
a. Issue Ten: Rule 403 and Brown’s Testimony
In his tenth issue, Appellant asserts the trial court erred in admitting Brown’s
testimony regarding Appellant’s previous threat to shoot Brown’s dog because that
testimony violated Rule 403 of the Texas Rules of Evidence. We conclude that the
trial court did not abuse its discretion when it determined that the evidence should
not be excluded under Rule 403. The testimony was highly probative to discredit
the defensive theory that the boxer acted aggressively toward Appellant and to show
potential motive, preparation, and intent. Additionally, the State needed the
testimony because it strongly rebutted Appellant’s defensive theory, as outlined
above. Therefore, we overrule Appellant’s tenth issue.
b. Issues Twelve, Fourteen, and Sixteen: Rule 403 and
Testimony from Shaw, Potter, and Smith
In his twelfth, fourteenth, and sixteenth issues, Appellant argues that the trial
court abused its discretion when it admitted evidence in violation of Rule 403. We
do not need to reach these issues because we held that the complained-of testimony
of Shaw, Potter, and Smith was inadmissible under Rule 404(b). See TEX. R.
APP. P. 47.1.
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VI. Harm Analysis for Erroneously Admitted Evidence
We analyze, under a Rule 44.2(b) harm analysis, any errors by the trial court
in admitting evidence. See Hernandez v. State, 176 S.W.3d 821, 824–25 (Tex. Crim.
App. 2005); see also TEX. R. APP. P. 44.2(b). In accordance with Rule 44.2(b), an
error is reversible when it affects a defendant’s substantial rights. See TEX. R.
APP. P. 44.2(b). A substantial right is affected when the error has “a substantial and
injurious effect or influence in determining the jury’s verdict.” Johnson v. State, 43
S.W.3d 1, 4 (Tex. Crim. App. 2001). In evaluating the harm of an erroneous
admission of evidence, a reviewing court considers everything in the record,
including:
[A]ny testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the
character of the alleged error and how it might be considered in
connection with other evidence in the case, the jury instructions, the
State’s theory and any defensive theories, closing arguments, voir dire,
and whether the State emphasized the error.
Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005). We note that the
erroneous admission of extraneous-offense evidence often weighs in favor of finding
harm. “Extraneous-offense evidence is ‘inherently prejudicial, tends to confuse the
issues, and forces the accused to defend himself against charges not part of the
present case against him.’” Sims v. State, 273 S.W.3d 291, 294–95 (Tex. Crim. App.
2008) (quoting Pollard v. State, 255 S.W.3d 184, 187–88 (Tex. App.—San Antonio
2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009)). However, when reviewing
the record as a whole, it is evident that an overwhelming number of factors indicate
that the admission of the testimony of Shaw, Potter, and Smith did not affect
Appellant’s substantial rights.
The record reflects that Appellant admitted that he shot the boxer. The jury
heard testimony from neighbors Amy Martin and Winter that the boxer was a good
dog who did not act aggressively. Marvin and Karen Esterly, the owners of the
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boxer, also testified as to the boxer’s good, nonaggressive nature. Whereas,
Appellant alleged that, prior to the shooting, the boxer and the other two dogs had
their tails up and ears back and were aggressively showing their teeth. The jurors
examined this exact issue during their deliberations when they asked to review
Appellant’s testimony concerning the boxer’s alleged aggressive behavior.
The record also reflects that, without objection and prior to Smith’s testimony,
Appellant had testified that he shot his neighbor’s chickens. The testimony of Shaw,
Potter, and Smith was offered in rebuttal, was developed quickly, and was not
mentioned in detail in the State’s closing. The only mention of this testimony during
the State’s closing was a reference to the “five people” who testified about “the type
of gentleman that Stan Atnipp is.” Additionally, prior to the testimony of Shaw,
Potter, and Smith, the trial court gave limiting instructions to the jury and directed
the jury to only consider the evidence for impeachment purposes. “Instructions to
the jury are generally considered sufficient to cure improprieties that occur during
trial,” and appellate courts “generally presume that a jury will follow the judge’s
instructions.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). In
this case, the State did not spend much time developing the three lines of questioning
and barely mentioned the evidence in its closing. After a review of the entire record,
we conclude that the trial court’s error when it admitted evidence of extraneous bad
acts did not have a substantial or injurious effect on the jury’s verdict and did not
affect Appellant’s substantial rights. We overrule Appellant’s eleventh, thirteenth,
and fifteenth issues.
VII. Alleged Jury-Charge Error
In his seventeenth issue, Appellant asserts that the trial court erred when it
failed to instruct the jury to restrict the jury’s consideration of extraneous offenses
by Appellant to the sole purpose for which they were admitted: the purpose of
impeachment. Appellant concedes that he did not make this objection at trial, but
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he claims that he suffered egregious harm as a result of the error. Because Appellant
did not object at trial, he is only entitled to a reversal if he suffered egregious harm.
Ngo, 175 S.W.3d at 743–44; Almanza, 686 S.W.2d at 171.
When we review an alleged jury-charge error, we must first determine if there
was an error in the charge. Almanza, 686 S.W.2d at 171; see Ngo, 175 S.W.3d at
743. If there was an error in the charge, the court must then determine whether the
error was harmful to the accused. Almanza, 686 S.W.2d at 171. If a defendant failed
to object to the jury-charge error, then we will reverse only if he suffered “egregious
harm.” Ngo, 175 S.W.3d at 743–44 (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex.
Crim. App. 2004); Almanza, 686 S.W.2d at 171). Neither the State nor the defendant
bears the burden of proving harm; we must review the entire record to determine if
the defendant suffered harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.
2013).
A review of the record indicates that, with respect to the extraneous acts
admitted for the purpose of impeachment, the trial court gave limiting instructions
at the time the evidence was admitted, for the testimony of Shaw, Potter, and Smith,
as required under Rule 105(a) of the Texas Rules of Evidence. See TEX. R.
EVID. 105(a); Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996) (holding
that, if requested by defendant opposing introduction of evidence, the trial court must
give limiting instruction when evidence admitted). In addition, the jury charge
outlined that the jury must believe beyond a reasonable doubt that Appellant
committed an extraneous act in order for the jury to consider that evidence for the
purpose of rebutting a defense or for the purpose of showing motive, intent, or
absence of mistake. See TEX. R. EVID. 105(a); Hammock v. State, 46 S.W.3d 889,
893 (Tex. Crim. App. 2001). Because the trial court gave the limiting instruction
for the evidence admitted for impeachment and gave the instruction on the burden
of proof for the other extraneous acts, the trial court did not give an erroneous charge.
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See Hammock, 46 S.W.3d at 893; Rankin, 974 S.W.2d at 713. As we have
previously explained, the trial court should not have admitted the objectionable and
inadmissible evidence. However, because Appellant did not suffer some harm as a
result of the erroneous admission of that evidence, and because limiting instructions
were given when that evidence was offered, he necessarily has not met the higher
standard of egregious harm for an alleged error for which he made no objection. We
overrule Appellant’s seventeenth issue.
VIII. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
April 20, 2017
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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