Opinion issued August 28, 2014




                                  In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                  NOS. 01-12-00755-CR, 01-12-00756-CR
                        ———————————
                    KEITH ALAN COOK, Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 174th District Court
                          Harris County, Texas
                 Trial Court Case Nos. 1263337, 1263338


                     MEMORANDUM OPINION

     Keith Alan Cook was convicted of two counts of burglary of a habitation
with intent to commit assault. 1     The jury assessed punishment of ten years’

confinement on each case, the sentences to run concurrently. In two points of

error, Cook contends that (1) the trial court abused its discretion by allowing the

State to introduce evidence of extraneous bad acts violating Cook’s substantial

rights, and (2) the trial court committed harmful error by allowing evidence of

three of Cook’s prior convictions during the guilt-innocence phase of trial. We

affirm.

                                    Background

      Cook was convicted of two incidents of burglarizing a habitation with intent

to commit assault on Monica Parra—April 24, 2010 and May 14, 2010. Parra, a

single mother with a young son who had lived across the street from Cook for

several years without incident, testified that, beginning in February 2010, she had

several unpleasant, violent experiences with Cook, including the two charged

offenses.

      Prior to presenting Parra as its first witness, the State informed the trial court

that it intended to introduce evidence of two extraneous offenses (March 27, 2010

and May 4, 2010) to prove Cook’s intent to commit an assault and Parra’s “state of


1
      A person commits burglary if he “enters a habitation . . . with intent to commit a
      felony, theft or an assault[.]” TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
      A person commits an assault if he “intentionally or knowingly threatens another
      with imminent bodily injury” or “intentionally, knowingly or recklessly causes
      bodily injury to another.” Id. § 22.01(a)(1), (2).


                                          2
mind.”   Cook objected and argued that the State was “jumping the gun” by

bringing up these extraneous offenses to show intent, since intent was not yet at

issue, and that the evidence was offered solely for the purpose of proving bad

character and conduct in conformity with that character, in violation of Texas Rule

of Evidence 404. Cook also argued that the evidence was more prejudicial than

probative, in violation of Rule of Evidence 403. The trial court overruled Cook’s

objections and admitted the evidence.

A.    February 2010–Extraneous Bad Acts

      Parra testified that in February 2010, Cook appeared uninvited at a Super

Bowl party at her home. Cook “harassed” everybody at the party, “threatened

people,” “took food” that was not offered to him, “cussed at people,” and got into a

verbal altercation with Parra’s brother and uncle. The police were called but no

charges were filed against Cook. According to Parra, she had no problems with

Cook prior to this incident.

B.    March 27, 2010–Extraneous Bad Acts

      Parra also testified that as she was cleaning out her house, Cook “came from

across the street,” started “cussing” at her, “throwing bottles” on her carport and

driveway while complaining about Parra and the other “stupid wetbacks” that lived




                                         3
in the house.2 Cook “punched the front door” and “broke the glass” during this

incident. When Parra left to call the police from her neighbor’s house, Cook called

her a “stupid bitch,” and told her “to be careful” because that is what she gets “for

being a single mom.” Again, the police were called but no charges were filed.

C.      April 24, 2010–Charged Offense

        On the morning of April 24, 2010 Parra testified that she was awaken

between two and three a.m. by Cook, who had entered her home through her

bedroom window, and was pulling her hair out in clumps and taunting her, “I

told you, stupid bitch. I’m going to get you one way or the other.” Cook also

told Parra that “if [she] wasn’t his, [she] wasn’t nobodys.” Fearing for herself

and her infant son, she grabbed the child and the two escaped through a window in

the next room. Parra testified that Cook hit her cheek and punched her son in the

mouth as she ran to her neighbor’s house for help. Cook was arrested at his

home.

D.      May 4, 2010–Extraneous Bad Acts

        Parra testified that she watched as Cook grabbed her brother, who was

standing at her front door, and dragged him across the street to Cook’s house.


2
        When the State asked Parra about the incident, Cook asked for a limiting
        instruction. The trial court overruled the objection and stated, “Instructions of the
        jury come at the end when I charge the jury.” Cook does not argue on appeal that
        the trial court erred in denying his request for a contemporaneous limiting
        instruction or provide any case law on this issue.


                                              4
According to Parra, Cook proceeded to “beat the hell out of” her brother and held a

“cracked bottle under [her] brother’s throat.” After Parra’s brother got away from

Cook and the police were called, Cook told Parra that she “wasn’t going to get

away easy” and that “he was still going to be harassing [her] no matter what.”

Parra also testified that Cook told her brother: “Just because you’re here, she’s not

safe. And once you leave it’s still going to be the same.” The police were called

and Cook was arrested and charged with public intoxication and Class C Assault.

The charges were later dismissed.

E.    May 14, 2010–Charged Offense

      While in the kitchen with her son making breakfast on May 14, 2010, Parra

heard her screen door open and saw Cook, neither invited nor expected, standing

barefoot in her living room. Cook, with a knife in his hand, approached Parra who

grabbed her son and threw a pan of hot oil at Cook who “started grabbing the

vases, picture frames, throwing it across the living room, breaking whatever he

could break.” Parra and her son ran to their neighbor’s house where Parra called

the police. By the time the police arrived, Cook had returned to his house across

the street. Parra thought Cook was going to kill her that morning when she saw

him standing in her living room holding a knife in his hand.




                                         5
F.      Cook’s Brother

        On cross-examination, Parra was asked about the sixteen 9-1-1 calls she

made to report a problem with Cook or his family—both before and after his May

2010 arrest. In particular, whether she had made the March 15, 2011 call resulting

in the arrest of Cook’s brother.3 On redirect examination, Parra testified that Cook

sent his brother to harass her into dropping the charges against Cook.

        Q.    (State) Now, in response to defense counsel questioning of you
              about [Cook’s] brother, you, in fact, called the cops on [Cook’s]
              brother, didn’t you?

        A.    (Parra) Yes.

        Q.    Was this after [Cook] sent him over to harass you?

        A.    Yes.

        Q.    Was this after [Cook] sent him over to make you drop charges?

        A.    Yes.

Cook’s objection to the State’s attempt to inject facts not in evidence was sustained

and the jury was instructed to disregard the testimony, but Cook’s request for a

mistrial was denied. The State then inquired as to the brother’s demeanor at her

home:

        Q.    (State) Was [Cook’s brother] yelling at you?

        A.    (Parra) Yes.


3
        There is conflicting evidence in the record as to when Cook’s brother went to
        Parra’s property and was arrested.

                                          6
      Q.     What was he saying to you?

      A.     That I needed to drop the charges against his brother because he
             has —

The trial court sustained Cook’s hearsay objection and instructed the jury to

disregard the testimony, but denied Cook’s request for a mistrial.

      In response to further questions about her encounter with the brother, who

lived with Cook across the street, Parra testified that she panicked when, with gait

impaired and speech slurred by alcohol, he came unbidden to her home, yelled at

and insulted her and refused to leave. Parra was driven from her own home to her

next door neighbor to call the police.

      Parra testified that her fear of the brother resulted from his “violent history,”

which she explained stemmed from his “hitting women,” “prostitution,” and

“drugs.”   Cook’s objection to this line of questioning for lack of personal

knowledge and speculation were overruled.

G.    Other State Witnesses

      The jury also heard testimony from the officers who responded to Parra’s

calls for assistance on March 27th and May 4th, as well as the officer who

responded to the May 14th offense, and the lead investigator on both charged

offenses. These witnesses corroborated parts of Parra’s testimony regarding each

incident (i.e., broken glass in Parra’s driveway; disheveled appearance, scratches

and red marks on her brother’s body; the broken vase and picture frames in Parra’s


                                          7
living room; the bricks stacked under Parra’s bedroom window; and the scar on her

son’s face). The responding officer on the May 4th incident also testified that

Cook initially refused to answer the door and when he finally did answer, would

not step outside to answer questions. Rather, using abusive language, Cook swore

at the uniformed officer and taunted the officer to come and get him from behind

the locked burglar door.

      Jocelyn Benavides, a neighbor of both Parra and Cook, testified that Cook

was not a good neighbor and that she had been “warned by other neighbors just to

stay away.” Ms. Benavides recounted one occasion that Parra had run to her house

after she had been threatened by Cook’s brother.           Believing Parra to be

endangered, Benavides called the police.

H.    Trial Testimony of Defense Witnesses

      Cook denied both burglaries and suggested that Parra and several law

enforcement officers were lying about his involvement. Cook denied that any of

the extraneous bad acts occurred and testified that he had been in Parra’s home

only once: when invited by her brother for the 2010 Super Bowl party. Cook also

testified that he cooperated with the police as much as possible, including giving a

statement after he was arrested.    He denied swearing at or directing abusive

language towards the officer who tried to speak with him on May 4th.




                                           8
      On cross-examination, the State argued that in testifying about his

cooperation with law enforcement and denial of cursing the officer, Cook opened

the door to impeachment with his criminal history. The trial court overruled

Cook’s objections and the State inquired about certain facts of Cook’s 2002 felony

DWI conviction (i.e., that Cook was unable to perform the field sobriety tests

because he was “too combative with the officers”). The State also asked if he had

been convicted of DWI in 1992 and 1998, but made no inquiry into the facts of

either case. Finally, the State asked about the facts of Cook’s 2008 criminal

mischief conviction (i.e., Cook broke a window in someone’s home and fled).

Cook explained that it was an accident. On redirect examination, Cook testified

that Parra was the one harassing him and his brother by fabricating all of these

allegations against them.

      Cook’s mother testified, too, and established herself as the owner of the

house in which Cook and his brother lived. She testified that both of her sons were

currently in jail and that she was afraid that she would be arrested next so she had

surveillance cameras installed on the house’s exterior in September 2011.       She

also acknowledged that Cook had a problem with alcohol, and that she had

supported him through his prior criminal convictions for DWI and criminal

mischief.

      Cook and his mother were the only defense witnesses.



                                         9
                        Evidence of Extraneous Bad Acts

      Cook’s first point of error contends that the trial court abused its discretion

by admitting testimony regarding the February 2010, March 27, 2010, and May 4,

2010, incidents and Parra’s encounter with Cook’s brother (i.e., that Cook sent his

brother over to Parra’s house to threaten to harm her if she did not drop the charges

against him), because such evidence has no relevance other than to prove character

conformity and is therefore barred by Rule 404. Cook further contends that even if

the evidence has noncharacter-conformity relevance under Rule 404, the admission

of such evidence is nevertheless barred by Rule 403.

      Cook further contends that even if these extraneous bad acts are not barred

by Rules 403 or 404, the trial court still erred by allowing the State to present this

evidence prematurely (i.e., prior to any need for rebuttal or cross-examination by

defense counsel).

A.    Preservation of Error

      To preserve error in the admission of extraneous bad acts, the defendant

must first timely object that the evidence is inadmissible under Rule 404(b) of the

Texas Rules of Evidence. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim.

App. 1990) (en banc) (op. on reh’g). During a pretrial conference, the State

indicated its desire to offer evidence of two extraneous bad acts during Parra’s

testimony, specifically, the incidents on March 27, 2010 and May 4, 2010. The



                                         10
trial court overruled Cook’s objections and held the evidence was admissible. An

objection to the admission of testimony regarding the extraneous bad act of

February 2010, was never lodged.

      Accordingly, Cook’s complaints as to the March 27th and May 4th incidents

are preserved, but not the February 2010 Super Bowl party incident.             See

Montgomery, 810 S.W.2d at 387.

      Cook also challenges Parra’s testimony that Cook’s brother was sent to

threaten her into dropping the charges. Because the trial court sustained Cook’s

objections to the portions of Parra’s testimony specifically addressing this issue

(i.e., “Was this after [Cook] sent him over to harass you?,” “Was this after [Cook]

sent him over to make you drop charges?,” “That I needed to drop the charges

against his brother . . . .”), we construe this argument as a challenge to admission

of the other portions of Parra’s testimony regarding the brother on the basis of

Rules 404 and 403 (e.g., that Cook’s brother had a violent history that involved

drugs, prostitution, and assaults on women).

      Parra never mentioned Cook’s brother or her encounter with him until asked

during cross-examination (i.e., asking Parra if she called 9-1-1 and had Cook’s

brother arrested). When the State followed up on this line of questioning during

redirect examination, Cook objected to some of the testimony but on different

grounds (e.g., lack of personal knowledge, calls for speculation). Cook never


                                        11
objected to the admission of this testimony under Rules 403 or 404 (i.e., that the

evidence was being offered to prove character in conformity or that it was more

prejudicial than probative).

      Accordingly, we hold that Cook failed to preserve his complaint as to the

admission of testimony regarding Parra’s encounter with Cook’s brother based on

Rules 403 and 404. See Montgomery, 810 S.W.2d at 387.

      Having determined that Cook failed to preserve his complaints as to the

admission of testimony regarding the February 2010 Super Bowl incident and

Parra’s encounter with Cook’s brother, we will now evaluate the trial court’s

decision to admit testimony regarding the March 27th and May 4th incidents.

B.    Standard of Review

      We review the trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.

App. 2010) (citing Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996));

De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial court

does not abuse its discretion unless its decision to admit or exclude the evidence

lies outside the zone of reasonable disagreement. See Martinez, 327 S.W.3d at

736; De La Paz, 279 S.W.3d at 343–44. To be admissible, extraneous bad act or

offense evidence must pass the two-prong test imposed by Rules of Evidence

404(b) and 403: (1) the extraneous offense or bad act evidence must be relevant to



                                       12
a fact of consequence in the case apart from its tendency to prove conduct in

conformity with character; and (2) the probative value of the evidence must not be

substantially outweighed by unfair prejudice. Martin v. State, 173 S.W.3d 463,

467 (Tex. Crim. App. 2005); see also De La Paz, 279 S.W.3d at 344. If the trial

court's evidentiary ruling is correct on any theory of law applicable to that ruling, it

will be sustained, even when the court’s underlying reason for the ruling is wrong.

De La Paz, 279 S.W.3d at 343–44; see also Osbourn v. State, 92 S.W.3d 531, 538

(Tex. Crim. App. 2002) (if there is evidence supporting trial court’s decision to

admit evidence, there is no abuse and appellate court must defer to that decision,

even if trial court gave wrong reason for decision).

C.    Rule of Evidence 404

      Evidence of other crimes, wrongs, or acts is not admissible to prove

character conformity, but may be admissible for other purposes, “such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” TEX. R. EVID. 404. Rule 404(b) is a rule of inclusion rather

than exclusion and the exceptions listed under Rule 404(b) are neither mutually

exclusive nor collectively exhaustive. De La Paz, 279 S.W.3d at 343.

      Extraneous bad act or offense evidence may also be admissible as contextual

evidence. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). There are

two types of contextual evidence: (1) evidence of another offense connected with



                                          13
the primary offense—“same transaction contextual evidence”; and (2) general

background evidence—“background contextual evidence.” Mayes v. State, 816

S.W.2d 79, 86–87 (Tex. Crim. App. 1991). Background contextual evidence helps

the jury “fill in the background of the narrative and give it interest, color, and

lifelikeness.” Id. at 87. “In other words, the evidence must be necessary to the

jury’s understanding of the instant offense because the circumstances of the

offense would make little or no sense without the admission of the background

contextual evidence.” Smith v. State, 200 S.W.3d 644, 649 (Tex. App.—Houston

[1st Dist.] 2001, pet. ref’d).

       Extraneous bad act or offense evidence may also be admitted to prove

motive under Rule 404(b). See Crane v. State, 786 S.W.2d 338, 349–50 (Tex.

Crim. App. 1990); see also Keen v. State, 85 S.W.3d 405, 413–14 (Tex. App.—

Tyler 2002, pet. ref’d) (holding trial court could have reasonably decided that

extraneous offense evidence had non-character conformity relevance where it

rebutted defendant’s defensive theory that he was framed and showed his motive to

commit offense).      Although not an essential element of a criminal offense,

evidence of motive is “always proper and relevant” to assist in proving the

defendant committed the charged offense. Sypniewski v. State, 799 S.W.2d 432,

434 (Tex. App.—Texarkana 1990, pet. ref’d) (holding extraneous offense or bad

act evidence admissible to prove motive, even though motive was uncontested);



                                       14
see also Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991) (evidence of

motive admissible if relevant as circumstance tending to prove commission of

offense and holding trial court did not abuse its discretion by admitting evidence of

extraneous offense for purposes of proving motive).

      Although the State argued that the March 27 and May 4 extraneous bad acts

were admissible to prove Cook’s intent to commit an assault and Parra’s “state of

mind,” we can affirm the trial court’s evidentiary ruling if it is correct on any

theory of law applicable to the case. See De La Paz, 279 S.W.3d at 343–44. Here,

the testimony regarding the March 27th and May 4th incidents is admissible under

Rule 404(b) because it places the charged offenses in context and serves to make

the “fact or consequence” that Cook committed the charged offenses more

probable by providing a possible motive.

      Without evidence of the extraneous bad acts in this case, the jury would

have been left with an incomplete (and confusing) picture of two neighbors who

lived across the street from one another for years, without incident, until—

apparently out of the blue—Cook decided to break into Parra’s home and assault

her on two separate occasions within a little less than a month. See Smith, 200

S.W.3d at 649.      These extraneous bad acts show the increasingly violent

interactions of Cook with Parra over the span of a few short months and put the

relationship between the two neighbors into context. It also suggests a possible



                                         15
motive for the charged offenses because it raises the inference that Cook was

obsessed with Parra and broke into her home and assaulted her on April 24th and

May 14th as part of his continuing harassment and intimidation.4 Thus, at a

minimum, it is at least subject to reasonable disagreement whether the evidence of

Cook’s prior bad acts with regard to Parra made his commission of the charged

offenses more probable by providing a possible motive.

      Accordingly, we conclude that the trial court did not abuse its discretion in

admitting testimony regarding the March 27th and May 4th incidents.

D.    Rule of Evidence 403

      Having determined that the evidence regarding the March 27th and May 4th

incidents was permissible under Rule 404, we must now determine whether the

probative value of such evidence is substantially outweighed by the danger of

unfair prejudice, pursuant to Rule 403.

      Although admissible under Rule 404(b), “evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403. A


4
      In fact, Parra testified that when Cook burglarized her home on April 24th he told
      her, “I told you, stupid bitch. I’m going to get you one way or the other” and that
      “if [she] wasn’t his, [she] wasn’t nobodys.” Parra further testified that Cook told
      her during the May 4th incident that she “wasn’t going to get away easy” and that
      “he was still going to be harassing [her] no matter what.”

                                          16
Rule 403 analysis involves a balance of: “(1) the inherent probative force of the

proffered item of evidence along with (2) the proponent’s need for that evidence

against (3) any tendency of the evidence to suggest decision on an improper basis,

(4) any tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a jury that

has not been equipped to evaluate the probative force of the evidence, and (6) the

likelihood that presentation of the evidence will consume an inordinate amount of

time or merely repeat evidence already admitted.” Gigliobianco v. State, 210

S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

      Rule 403 favors admissibility, and “the presumption is that relevant evidence

will be more probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372,

389 (Tex. Crim. App. 1991); see also De La Paz, 279 S.W.3d at 343. As with

Rule 404, a trial court does not abuse its discretion when it admits or excludes

evidence pursuant to Rule 403 so long as its decision is within the zone of

reasonable disagreement. See De La Paz, 279 S.W.3d at 343–44.

      Here, Cook first contends that because the trial court (1) failed to address his

Rule 403 argument on the record and (2) did not make any findings of fact or

conclusions of law, the trial court failed to conduct the Rule 403 balancing test.

Cook’s argument is without merit. A trial court need not conduct a Rule 403

balancing test on the record; once the rule is invoked, appellate courts presume that



                                         17
the trial court conducted the test, absent an express refusal to do so. See Williams

v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (appellate courts presume

trial court engaged in required balancing test once Rule 403 is invoked, and trial

court’s failure to conduct balancing test on record does not imply otherwise); see

also Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (“Although

appellant asserts that the trial court did not perform the balancing test, the trial

court did not explicitly refuse to do the test, it simply overruled appellant’s Rule

403 objections. We find nothing in the record to indicate that the trial court did not

perform a balancing test, albeit a cursory one.”) Nothing in this record indicates

that the trial court refused to perform the Rule 403 balancing test. Moreover, “the

trial court implicitly makes findings of fact and conclusions of law” when it makes

an admissibility ruling. Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App.

1996). Cook requested no oral or written findings and conclusions of the court and

the court is not required to do so sua sponte. See id.

      Cook also contends that had the trial court conducted a proper Rule 403

balancing test, the evidence would have been excluded because the probative value

of the extraneous bad acts was substantially outweighed by the danger of unfair

prejudice. TEX. R. EVID. 403. Again, we disagree.

      With respect to the first two Gigliobianco factors, Cook posits that the

evidence has little, if any, probative value because it was not relevant for any



                                          18
purpose other than to establish character-conforming behavior, and it was

unneeded by the State to counterbalance any defense theories advanced. The

“inherent probative force” of the extraneous bad act measures “how strongly it

serves to make more or less probable the existence of a fact of consequence to the

litigation.” Gigliobianco, 210 S.W.3d at 641.         Because it places the charged

offenses in context and serves to make the “fact or consequence” that Cook

committed the offenses more probable by providing a possible motive (i.e.,

harassment or intimidation), the evidence of extraneous bad acts is relevant. See

Gosch, 829 S.W.2d at 783 (stating that although motive is not element of offense,

State is entitled to prove motive “if it is relevant as a circumstance tending to prove

the commission of the offense.”)

      With regard to the third factor, Cook contends that the extraneous bad acts

were prejudicial, offered by the State to “excite emotions against [Cook by]

portraying him as a violent and threatening criminal” and that the evidence of these

bad acts “generated an emotional response from the jury.” First, most evidence is

prejudicial to one or the other party; the question presented by Rule 403 is whether

the evidence is unfairly prejudicial. See Casey v. State, 215 S.W.3d 870, 883 (Tex.

Crim. App. 2007) (“Virtually all evidence that a party offers will be prejudicial to

the opponent’s case, or the party would not offer it. . . . Evidence is unfairly

prejudicial only when it tends to have some adverse effect upon a defendant



                                          19
beyond tending to prove the fact or issue that justifies its admission into

evidence.”); see also Gigliobianco, 210 S.W.3d at 641 (stating “unfair prejudice”

refers to a tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one).

      Second, the extraneous acts or offenses in this case (i.e., criminal mischief,

assault, and public intoxication) are not so inherently inflammatory that they tend

to elicit an emotional response and impress a jury in some “irrational yet indelible

way.” Cf. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) (“[A]n

extraneous sexual offense will always carry emotional weight and the danger of

impressing the jury in an irrational and indelible way.”); Santellan, 939 S.W.2d at

169 (finding offense of abuse of corpse could potentially affect the jury in

emotional way); Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)

(holding “sexually related misconduct and misconduct involving children are

inherently inflammatory.”).

      Finally, we also observe that the jury was provided with an appropriate

limiting instruction in the jury charge which “reduced the risk the jury might

misuse the evidence during jury deliberations.” Jones v. State, 944 S.W.2d 642,

654 (Tex. Crim. App. 1996). The record does not suggest that the jury disregarded




                                        20
the instruction during its deliberations.5 See Kirsch v. State, 306 S.W.3d 738, 748

(Tex. Crim. App. 2010) (appellate courts presume juries follow trial court’s

instructions, unless otherwise established by the record). Because the extraneous

bad acts in this case are not the type that would normally generate an emotional

response from a jury and there is nothing in the record to suggest that the jury

disregarded the trial court’s limiting instructions, the third factor weighs in favor of

admission.

      The fourth and sixth factors concern the tendency of the evidence to confuse

or distract the jury from the main issues and the amount of time consumed by the

presentation of the extraneous-offense evidence. See Gigliobianco, 210 S.W.3d at

641 (“Evidence that consumes an inordinate amount of time to present or answer,

for example, might tend to confuse or distract the jury from the main issues.”).

The State presented six witnesses—four of whom testified about the two

extraneous bad acts. Three of the State’s witnesses testified about the March 27

incident involving the broken bottles (i.e., Parra, the responding officer, and the

lead investigator on Cook’s burglary cases who questioned Cook).                   Three

witnesses also testified about the assault on Parra’s brother on May 4, 2010 (i.e.,

5
      Cook argues that the trial court did not provide a limiting instruction to the jury.
      This is incorrect. Although the trial court denied his request for a
      contemporaneous limiting instruction, it nevertheless, included a limiting
      instruction in the jury charge. Notably, Cook does not argue that the trial court
      erred in denying a contemporaneous limiting instruction or provide any case law
      on this issue.


                                           21
Parra, the responding officer, and the lead investigator on Cook’s burglary cases).

The two responding officers were called for the sole purpose of testifying about the

extraneous bad acts. Given the significant time devoted to presentation of the

extraneous bad act evidence, the fourth and sixth factors weigh against admission.

      The fifth factor concerns “a tendency of an item of evidence to be given

undue weight by the jury on other than emotional grounds.             For example,

‘scientific’ evidence might mislead a jury that is not properly equipped to judge the

probative force of the evidence.” Id. (citation omitted). Testimony concerning the

two extraneous bad acts was not prone to this tendency, as it concerned matters

easily comprehensible by laypeople. Thus, the fifth factor weighs in favor of

admission.

      In sum, as a few factors weighed against admitting the extraneous bad act

testimony, and a few weighed in favor of admission, bearing in mind that Rule 403

“envisions exclusion of evidence only when there is a ‘clear disparity’ between the

degree of prejudice of the offered evidence and its probative value,” the trial court

could have reasonably concluded that this testimony was admissible under Rule

403. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting

Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that

the trial court abused its discretion. See Hammer, 296 S.W.3d at 568.




                                         22
E.    Premature Presentation of Extraneous Bad Acts

      Cook argues that even if these extraneous bad acts are not barred by Rules

403 or 404, the trial court, nevertheless, erred by allowing the State to present this

evidence prematurely (i.e., prior to any need for rebuttal or cross-examination by

defense counsel), citing to Jones v. State, 587 S.W.2d 115, 120 (Tex. Crim. App.

1979).   Although Jones held that the premature admission of the extraneous

evidence to be error, it, nonetheless, determined that the error was rendered

harmless because the defendant raised a defensive theory which placed intent at

issue (alibi), which the prematurely admitted evidence would have been admissible

to rebut. Jones, 587 S.W.2d at 120; see also Rubio v. State, 607 S.W.2d 498, 502

(Tex. Crim. App. 1980) (citing Jones, 587 S.W.2d at 120) (holding premature

admission of extraneous offense evidence to prove intent in rape case harmless

because defense subsequently raised consent defense which placed intent at issue);

Dickson v. State, 246 S.W.3d 733, 744 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref’d) (holding premature admission of extraneous offense evidence to prove

identity harmless because defendant subsequently raised alibi defense, which

placed identity at issue). Cook’s subsequent denials of harassing Parra or being in

her home uninvited places motive at issue.

      We overrule Cook’s first point of error.




                                         23
                         Evidence of Prior Convictions

      Cook’s second point of error contends that, pursuant to Rule of Evidence

609, the trial court erred by allowing testimony of his three prior misdemeanor

convictions into evidence during the guilt-innocence phase of trial (i.e., DWI

(1993), DWI (1998), and criminal mischief (2008)) and by allowing the State to

inquire about the circumstances surrounding his 2002 felony DWI conviction. We

need not decide whether the admission of this evidence was error, however,

because we conclude that the error in admitting it, if any, would not warrant

reversal.

A.    Standard of Review

      The violation of an evidentiary rule that results in the erroneous admission

of evidence constitutes non-constitutional error. See TEX. R. APP. P. 44.2(b); see

also Geuder v. State, 142 S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.]

2004, pet. ref’d) (holding that trial court’s error in admitting prior convictions

under Rule 609 is non-constitutional error); Lopez v. State, 990 S.W.2d 770, 777

(Tex. App.—Austin 1999, no pet.) (same).         Non-constitutional error must be

disregarded unless the error affects the defendant’s substantial rights. See TEX. R.

APP. P. 44.2(b). A substantial right is affected when an error has a substantial and

injurious effect or influence in determining a jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997); see also Solomon v. State, 49 S.W.3d



                                        24
356, 365 (Tex. Crim. App. 2001) (stating that such error is harmless if, after

reviewing entire record, reviewing court has “fair assurance that the error did not

influence the jury, or had but a slight effect”). Accordingly, a criminal conviction

should not be overturned based upon non-constitutional error unless the reviewing

court has “grave doubt” that the result of the trial was free from the substantial

effect or influence of that error. See Burnett v. State, 88 S.W.3d 633, 637–38 (Tex.

Crim. App. 2002). “Grave doubt” means that “in the judge’s mind, the matter is so

evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error.” Burnett, 88 S.W.3d at 637–38.

      In assessing harm resulting from a non-constitutional error, we examine the

entire record and “calculate, as much as possible, the probable impact of the error

upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim.

App. 2010). We consider, among other relevant factors, the testimony or physical

evidence admitted for the jury’s consideration, the nature of the evidence

supporting the verdict, and the character of the alleged error and how it might be

considered in connection with other evidence in the case. Barshaw v. State, 342

S.W.3d 91, 94 (Tex. Crim. App. 2011). We may also consider, inter alia, the

parties’ theories of the case, closing arguments, and whether the State emphasized

the error. See id.




                                        25
B.    Analysis

      In the present case, direct evidence in the record supports the verdicts

against Cook: Parra’s testimony regarding the charged offenses, the corroborating

testimony of the responding officer and of the lead investigator, and photographs

documenting the damage to Parra’s living room on May 14, 2010. 6

      The State’s theory of the case, as illustrated by its closing argument, was:

that Cook was a bully with a drinking problem, who was obsessed with Parra, who

engaged in a pattern of increasingly violent, dangerous, and harassing behavior

towards Parra beginning February 2010 at the Super Bowl party, and ending May

14, 2010, with him threatening her with a knife in her own living room. Although

this theory relied heavily upon the extraneous bad acts that began in 2010, 7

because they were temporally ill-suited, the State did not rely upon the 1993, 1998,

2002, and 2008 convictions. In fact, the State’s brief inquiry into these matters

totaled less than six pages of testimony. 8

      Nor did the State specifically mention Cook’s misdemeanor DWI

convictions, criminal mischief convictions, or the facts surrounding his felony

DWI conviction (i.e., he was “too combative with the officers” to perform the field

6
      Cook makes no challenge to the sufficiency of the evidence supporting either
      conviction.
7
      Those which Cook preserved for appellate review but we hold to be admissible.
8
      The State also briefly inquired about these prior convictions during Cook’s
      mother’s cross-examination.


                                          26
sobriety tests) during closing arguments. Although the State’s closing focused in

part on issues related to these convictions (i.e., Cook’s drinking and lack of

cooperation with or respect for law enforcement), given that Cook’s drinking and

belligerence towards law enforcement was already before the jury, the probable

impact of this evidence was slight.     Indeed, Cook himself testified on direct

examination as to a prior arrest, a public intoxication charge, and a felony DWI

conviction. The jury could have reasonably inferred that Cook had other prior

misdemeanor DWI convictions based upon his own testimony. See Lopez, 990

S.W.2d at 778 (admissible felony DWI conviction carries inference that there had

been previous misdemeanor DWI convictions regardless of remoteness); see also

Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003) (two prior

convictions for DWI are elements of offense of felony DWI).

      The jury charge contained an instruction limiting its consideration of his

prior convictions to whatever measure of credibility they cared to ascribe to his

testimony, and instructing the jury not to consider “the same for any other

purpose.” See Lopez, 990 S.W.2d at 779 (concluding that error in admission of

evidence of prior misdemeanor convictions for impeachment purposes was

harmless, due in part to similar limiting instruction in jury charge). We presume

that the jury obeyed the trial court’s instructions and this evidence played no role




                                        27
in the determination of guilt. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.

Crim. App. 2003).

      Although Cook’s prior misdemeanor convictions and the facts surrounding

his felony DWI conviction may have had some slight effect on the jury’s

determination, after considering the record as a whole, we cannot say that the

admission of this evidence had a substantial and injurious effect or influence in

determining the jury’s verdict. Accordingly, assuming—without deciding—that

the admission of this evidence was erroneous, we hold that any such error was

harmless. See Solomon, 49 S.W.3d at 365 (stating that non-constitutional error is

harmless if, after reviewing entire record, reviewing court has “fair assurance that

the error did not influence the jury, or had but a slight effect”).

      We overrule Cook’s second point of error.

                                      Conclusion

      We affirm the trial court’s judgment.




                                                Jim Sharp
                                                Justice


Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).



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