Opinion issued October 29, 2013.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-01002-CR
                           ———————————
                 CHARLES EDWARD BARLEY, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 506th District Court
                          Waller County, Texas
                     Trial Court Case No. 110513820


                         MEMORANDUM OPINION

     A jury found Charles Edwards Barley guilty of the murder1 of his wife,

Donna Jackson. After finding two enhancement paragraphs true, the trial judge


1
     TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011) (“A person commits an
     offense if he intends to cause serious bodily injury and commits an act clearly
     dangerous to human life that causes the death of an individual . . . ”).
sentenced him to 50 years in prison. Barley’s sole issue on appeal is whether the

trial court erred by failing to require the State to redact portions of Barley’s

recorded statement admitting he had been in prison three times previously.

      We affirm.

                                   Background

      Charles Edward Barley lived with his wife, Donna Jackson, in Brookshire,

Texas. One pre-dawn morning, Donna’s son, Brandon Jackson-Blair, returned

home after spending the night at his cousin’s house. He walked in, noticed the back

door was open, found his mother unresponsive in her bed, and called the police.

Brookshire Officer Ryland responded to the call and confirmed that Donna was

dead. She had scratches on her back and arm and blood coming from her nose.

Officer Ryland found a machete near the bed but no other weapons. There was no

blood on the machete. Lieutenant Garcia assisted with the investigation. As part of

their investigation, the police sought to question Barley but could not locate him.

Dr. Morna Gonsoulin performed an autopsy on Donna but was unable to identify

signs of injury.

      Three days after Donna died, Lieutenant Garcia received a call that Barley

had turned himself in at the Houston Police Department. Barley agreed to be

transported back to Brookshire where he was read his rights and voluntarily gave a

recorded statement. Barley was not in custody at the time of the interview.


                                         2
      Throughout the interview Barley was adamant that Donna attacked him. He

claimed she accused him of infidelity, became enraged, and chased him around the

house with a machete. He repeatedly admitted that he grabbed her around the neck,

squeezed “with all his might” and pushed her to the bedroom. There, the two fell to

the floor. Though Donna no longer had the machete, Barley straddled her on the

floor and continued choking her. He estimated that he choked her for an additional

one to two minutes after she dropped the machete, during which time she did

nothing because “there wasn’t anything she could do.” Once she was unconscious,

he lifted her to the bed, put covers on her, then grabbed her car keys and left.

      The police repeatedly asked Barley why he did not call them or an

ambulance to check on Donna once he left the house and was out of danger. Barley

very agitatedly answered, “Hell no. She attacked me.” When pressed that she could

have used the help he stated, “I don’t care. The aggression—she brought it out of

me. I wasn’t calling anyone to come check on her.” And again later: “I don’t give a

f— about her because she was trying to do harm to me. She tried to hurt me.”

      Barley also was asked many times why he did not stop choking her once she

dropped the machete and was no longer an immediate threat to him. Each time

Barley refused to answer the question. Finally, he offered this explanation: “I don’t

let nobody hurt me. I’m going to try to avoid you. But if you don’t stop [inaudible]




                                          3
get out of hand [inaudible] I’m going to stop you. I don’t care who it is. If you

push me to the point of no return, there it is.”

      Barley claimed to not have realized Donna was dead. He says he went to

Houston, eventually calling his aunt to see if Donna had called her looking for him.

When the aunt said she had not, he called his cousin who told him she was dead.

He then called both the Brookshire Police Department and the Houston Police

Department to see if there was a warrant for his arrest. During this time, Barley

was using Donna’s debit card to pay for hotel rooms in Houston, after hiding her

car in a parking garage on Westheimer. When he eventually went to the police,

Donna’s account had been completely depleted.

      In addition to Barley’s explanation of how he choked Donna and left for

Houston, Barley also made a couple of references to his criminal past during the

interview. He told the police that his depression and emotional issues had been

diagnosed in “TDC” and, in a later portion of the tape, that he could not have guns,

presumably as a result of a prior conviction. Another statement referenced prison

directly. The police asked him why he called asking if there was a warrant for his

arrest. He answered:

      Barley:       “I’ve been to prison how many times?”

      Police:        “I don’t know. You tell me.”

      Barley:       “Three times. You ask if there is a warrant for your arrest
                     anytime there’s [anything] questionable.”

                                           4
At no point did Barley elaborate on the past convictions. He never said what

crimes had been committed or how long he was confined. The interviewing

officers did not ask for more detail.

      A more in-depth analysis was performed on the autopsy specimens after the

police received this information from Barley. Dr. Sharon Derrick, a forensic

anthropologist with the medical examiner’s office, who has specialized training

evaluating bone trauma, was asked by Dr. Gonsoulin to analyze the specimens. She

found fractures to the hyoid bone and cricoid cartilage in Donna’s neck. She

explained, “Anytime the hyoid is fractured, it is a suspicious occurrence.” These

injuries, in her opinion, were consistent with “forceful compression of the neck.”

      Based on Dr. Gonsoulin’s findings and Barley’s statement, Barley was tried

for murder. The jury charge included the offense of murder as well as the lesser-

included offenses of manslaughter, criminally negligent homicide, aggravated

assault, and deadly conduct. The charge also instructed the jury on the use of

deadly force in self-defense. Barley did not testify in person at his trial, though the

entire audiotape of his police interview was played for the jury.

      Based on all the evidence presented, the jury found Barley guilty of murder.

Barley elected to have the judge determine punishment. Barley’s past criminal

record caused him to be sentenced as a habitual offender with an applicable




                                          5
punishment range of 25 to 99 years. The trial court sentenced him to 50 years in

prison.

                             Admissibility of Statements

       Barley challenges the trial court’s ruling on his objection to the admissibility

of his recorded statement. Specifically, Barley complains that certain portions of

the recording should have been deleted or muted because they disclosed past

criminal convictions. Barley’s objection was overruled, and the statement was

played to the jury in its entirety.

A.     Admission of statement that Barley had been in prison three times was
       error

       The decision to admit or exclude evidence will not be disturbed absent an

abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim.

App. 1991) (en banc op. on reh’g). The question is whether the court acted

“without reference to any guiding rules and principles,” making the ruling arbitrary

or unreasonable. See id. at 380; Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006). An accused may be convicted only by “evidence which

shows that he is guilty of that offense alone[.]” Martinez v. State, 134 S.W.2d 276,

277 (Tex. Crim. App. 1939). Evidence that the accused committed other,

unconnected offenses in the past generally is not admitted. See TEX. R. EVID. 403,

404; Martinez, 134 S.W.2d at 277.



                                           6
      There are at least three exceptions to this rule. First, evidence of prior

offenses is relevant and admissible if the State offers the evidence as proof of

motive, intent, identity, or for any other non-character purpose. TEX. R. EVID.

404(b). Second, when a defendant testifies in his own defense, other offenses may

be admissible for the limited purpose of attacking the credibility of the testifying

defendant. TEX. R. EVID. 404, 609. Third, statements revealing extraneous offenses

are admissible if evidence of the other crimes “tends to connect [the accused] with

the offense for which he is [on] trial.” Alvarez v. State, 511 S.W.2d 493, 494–95

(Tex. Crim. App. 1973); Martinez, 134 S.W.2d at 277. The burden is on the State

to show a valid use of otherwise inadmissible evidence. See Montgomery, 810

S.W.2d at 377–78. If no valid exception exists, it is error to admit the evidence.

See Martinez, 134 S.W.2d at 277.

      In response to Barley’s objection, the State argued that (1) Barley was “a

little late” objecting at trial given how long he knew the State intended to use the

tape and the technical challenges to deleting portions of an audiotape on the day of

trial, and (2) allowing the jury to hear the references to Barley being in prison

would not be unfairly prejudicial because it “was of miniscule importance given

the length and breadth of the overall statement.” The trial court ruled that the issue

“had nothing to do with . . . technology that may or may not exist” and held that

the full confession was admissible because it was “voluntarily given by the


                                          7
defendant after reading him his rights.” But the proper question is not whether it

was a voluntary statement.

      The question is whether a valid exception to the exclusionary rule applies.

TEX. R. EVID. 403, 404. The State did not argue one. Its position was not that the

statements should be admitted based on an exception to the exclusionary rule, but

rather that it was technologically too difficult to delete them from the recording

with little notice. The prosecutor explained to the trial judge that he was “not sure

that we have the technology to simply chop out a part of a digital recording . . . .”

      The State’s “technology” argument is without merit. Unless a valid

exception applies, evidence of past convictions is inadmissible against a non-

testifying defendant. See Martinez, 134 S.W.2d at 277. In Martinez, the accused

voluntarily gave a written statement confessing to possession of marijuana with the

intent to sell. See id. at 276. The last two sentences of his confession read: “I have

been to Texas Penitentiary twice.       Both times for burglary.” Id. At trial, the

defendant objected to the two sentences being read to the jury; the objection was

overruled. Id. at 276–77. The Court of Criminal Appeals held that it was error to

allow the entire confession to be introduced because none of the exceptions to the

exclusionary rule applied. See id. at 277. The court noted that “the State might

easily have pasted a strip of paper over the objectionable portion of the confession

and thereby excluded it from the jury.” Id.


                                           8
      Likewise, in Alvarez, an accused voluntarily gave a written confession in

which he admitted to the crime charged, but he included in his statement

information about an extraneous offense. 511 S.W.2d at 494. His murder

confession included the following sentence: “I always carry a pistol with me

because I shot and killed a man in Lubbock not too long ago and I am afraid of his

people.” Id. The trial court denied the defendant’s evidentiary objection and

admitted the complete statement with a limiting instruction that the evidence could

be considered only for the purpose of showing identity, intent, motive, or scheme.

Id. at 495. The appellate court found that none of the exceptions to the

exclusionary rule applied; accordingly, the trial court erred in admitting the full

statement. See id.

      While it may be true that redacting a digital recording is more difficult than

deleting sentences from a written statement, we conclude that it was required by

the rules of evidence. See TEX. R. EVID. 403, 404; Martinez, 134 S.W.2d at 277.

Having found that the failure to delete the statements was error, we now address

whether the error was harmless.

B.    Error was harmless considering entire record

      An erroneous evidentiary ruling will cause a reversal of conviction only if

the error affected the defendant’s substantial rights. TEX. R. APP. P. 44.2(b);

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). We must consider


                                         9
whether Barley’s references to his prior convictions, in light of all the other

evidence before the jury, had a substantial effect on the jury’s determination. See

id. Because we find the error had, at most, a slight effect, it was harmless and does

not require reversal. See id.

      1.     Standard of review

      Evidentiary errors are non-constitutional and require reversal only if they

affected the complaining defendant’s substantial rights. TEX. R. APP. P. 44.2(b);

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). The error must

have a “substantial and injurious effect or influence” on the jury’s verdict. See

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is

not affected if the reviewing court has a “fair assurance that the error did not

influence the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365. In other

words, if there is a “grave doubt” that the result was free from the substantial

influence of the evidence, then the defendant’s substantial rights were affected. See

Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002). “Grave doubt”

means “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.” Id.

      When analyzing the likelihood that a jury’s decision was affected by

erroneously admitted evidence, we consider everything in the record, including the

testimony and physical evidence admitted, the nature of the evidence supporting


                                          10
the verdict, the character of the alleged error and how it might be considered in

connection with the other evidence, the jury instructions, the State’s and

defendant’s theories of the case, and closing arguments. See Motilla v. State, 78

S.W.3d 352, 355–56 (Tex. Crim. App. 2002). It also is relevant whether the State

emphasized the error in closing argument or otherwise. See id. Lastly, the presence

of overwhelming evidence supporting a finding of guilt is a legitimate factor in

evaluating the harm the error caused. See id. at 356 (explaining the court’s prior

ruling in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)).

      2.      Applying the factors to the record

      Barley argues that information about his past convictions could have

substantially affected the jury’s decision to find him guilty of murder instead of

either accepting his self-defense argument or choosing a lesser-included offense,

such as criminally negligent homicide. In light of this claim, we review the entire

record and apply the Motilla factors to determine what effect the erroneously

admitted statements may have had on the jury’s determination of guilt. Motilla, 78

S.W.3d 355–56.

           a. Theories of the case

      The first factor we consider is the State’s and defendant’s theories of the

case. See id. The State argued Barley committed the offense of murder, which—as

described in the jury charge—required that Barley “intend[ed] to cause serious


                                        11
bodily injury and commit[ted] an act clearly dangerous to human life that cause[d]

the death of an individual.” 2

      Barley’s theory was self-defense. The jury charge included an instruction on

the law of self-defense, explaining that a person can be justified in using deadly

force “when and to the degree he reasonably believes deadly force is immediately

necessary to protect himself against the other’s use or attempted use of unlawful

deadly force.” (Emphasis added.) The jury was told to consider “all relevant facts

and circumstances surrounding the killing [including] the previous relationship

existing between the accused and the deceased . . . [and] the condition of the mind

of the defendant at the time of the offense.”

      In the interview, Barley never explained why he did not stop choking Donna

once she was no longer an immediate threat, even though the interviewing officers

asked him repeatedly. Often he refused to answer the question. Only at the end of

the interview did he finally say, “I don’t let nobody hurt me. I’m going to try to

avoid you. But if you don’t stop [inaudible] get out of hand [inaudible] I’m going

to stop you. I don’t care who it is. If you push me to the point of no return, there it

is.” After admitting he choked her for one to two minutes after she dropped the

machete, he said, “I was pissed. I’ve got a button. If you push it the wrong way, I



2
      This definition matches that found in the Texas Penal Code. See TEX. PENAL
      CODE ANN. § 19.02(b)(2) (West 2011).
                                          12
am going to respond. I can’t help it. I’m not going to let anyone push me the wrong

way.”

        The competing theories required the jury to consider the facts surrounding

Donna’s death and Barley’s state of mind at the time he killed her. The challenged

evidence did not directly relate to the parties’ theories or the issues before the jury.

Accordingly, this factor favors a finding of harmless error.

           b. Evidence of guilt

        A jury may consider a defendant’s attitude during his police interview when

assessing guilt. See id. at 355–56, 359. Further, an intention to commit murder

reasonably can be inferred when a defendant is hostile and shows no empathy or

remorse during his police interview. See id. at 359; Darby v. State, 145 S.W.3d

714, 721 (Tex. App.—Fort Worth 2004, pet. ref’d) (holding that lack of remorse is

evidence from which jury can infer intent). Overwhelming evidence of guilt will

favor a finding of harmless error. See Motilla, 78 S.W.3d at 356–60.

        In Motilla, evidence was erroneously admitted during a murder trial. The

Court of Criminal Appeals held that it was appropriate to examine the evidence of

the defendant’s guilt as one factor in its substantial harm analysis. See id. at 358.

The court held that the defendant’s demonstration of “contempt, defiance, and

apathy during the interview rather than remorse” could be considered by the jury as




                                          13
evidence that he did not regret his crime, and even as evidence that he intended to

commit the murder. See id. at 359.

      Ranger Luna testified about Barley’s hostility during the interview. Barley

“seemed to get upset when we talked to him and leaned forward and I thought

there might be some altercation during the interview.” The police asked him

repeatedly why he did not call them or emergency services to aid Donna after he

left, if he really believed she was still alive. Barley was very defiant, showing no

remorse in his responses, often saying, “Hell, no . . . she was trying to hurt me”

also “I don’t care! The aggression—she brought it out of me. I wasn’t calling

anyone to come check on her.”

      His demeanor was the same when asked why he continued choking her once

she dropped the machete. He repeatedly said he “did not care” if she was fighting

back or not after she dropped the machete. He reasoned that it did not matter

because she was the one who attacked him: “I was pissed! I’ve got a button. If you

push it the wrong way, I am going to respond.” Again, “I don’t care who it is. If

you push me to the point of no return, there it is.”

      When asked what she was doing as he choked her, he responded: “She

wasn’t doing [anything] because there wasn’t anything she could do.” He

continued, “What do I care? . . . I don’t care. She attacked me, chasing me with a

machete. That set everything in motion. I was in a rage. I’m not going to let anyone


                                          14
push me . . . I don’t give a f— about her because she was trying to do harm to me.

She was trying to hurt me.” Later he said he “hasn’t shed a tear” and does not

know why, explaining that it is like he has a “blockade” and is not “processing”

what happened.

      A reasonable jury could interpret Barley’s hostility in the interview, apathy,

and lack of remorse as evidence of intent or, at a minimum, as evidence Barley

realized the immediate danger had passed yet continued using deadly force against

Donna. See TEX. PENAL CODE ANN. § 19.02(b)(2); see also Motilla, 78 S.W.3d at

359 (holding defendant’s demeanor in police interview is relevant to jury’s

determination of intent to commit murder). Furthermore, the jury could infer guilt

from the fact that Barley fled, hid Donna’s car, then hid in Houston for several

days after he choked her. See Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim.

App. 1994).

      Likewise, the inconsistencies between Barley’s statements in the interview

and those of the other trial witnesses could affect Barley’s credibility with the jury.

Donna’s son, Brandon Jackson-Blair, testified that, when he left the house the

night before her death, Barley and his mother were arguing because Barley had

been drinking earlier in the day and “wanted some money.” Jackson-Blair testified

that Barley appeared to be under the influence of alcohol or drugs, that he had

previously seen Barley in that condition, and that he had seen him smoke crack


                                          15
cocaine many times. Jackson-Blair had seen him smoking crack cocaine and

drinking shortly before the argument and knew Barley had been in the

neighborhood looking for crack cocaine earlier that day. Barley admitted in his

statement that he was drinking on the day of the fight and that he was a frequent

user of crack cocaine; however, he denied using drugs that day.

      Officer Ryland testified that he did not find any additional machetes or other

weapons at the house. In contrast, Barley’s self-defense claim was based in part on

his assertion that there were multiple machetes in the home and Donna could have

picked up another one had he stopped choking her. Further, Donna had scratches

on her back and arm and blood coming from her nose. Yet Barley said in the

interview that he did not scratch Donna or hit her.

      Donna’s daughter, Nasha Jackson, testified that Barley did not contribute

financially to his marriage and that he lived off Donna. She confirmed that Barley

had access to the PIN number to Donna’s debit account and that the account was

emptied through various withdrawals in the Houston area between the date her

mother died and the date of Barley’s interview. Yet Barley told the police officers

that he had a job and had money to pay for his hotels and expenses while in

Houston.

      Further, Barley stated in his recorded interview that he continued to choke

Donna for one to two minutes after she already dropped the weapon, that she was


                                         16
not doing anything to defend herself at this point because “there wasn’t anything

she could do,” yet he did not stop. He continued to choke her “with all his might”

until she was unconscious. And he never looked back. He left for three days,

depleting her account, calling to check if there was a warrant for his arrest, then

finally appearing at the police station with an explanation.

      There is significant evidence of guilt, based on (1) Barley’s own description

of the events and his state of mind at the time, (2) the inconsistencies between

Barley’s statement and those of the witnesses as well as within Barley’s statement

itself, and (3) the impression Barley’s hostile demeanor likely had on the jury

where he showed apathy towards Donna’s injuries and death instead of remorse.

This factor weighs in favor of finding the evidentiary ruling to be harmless error.

         c. Character of erroneous evidence

      The next factor we consider is the character of the erroneously admitted

evidence and how it might be considered in connection with other evidence in the

case. See Motilla, 78 S.W.3d at 355 (citing Morales v. State, 32 S.W.3d 862, 867

(Tex. Crim. App. 2000). The key issue in the trial was Barley’s intent either to

commit murder or to merely defend himself. The challenged evidence of past

convictions had no connection to Barley’s intent. Barley said in his statement that

he had never hit or been violent to a woman before this incident. Accordingly, it

would have been unreasonable for the jury to presume a prior domestic violence


                                          17
conviction. It is far more likely that, if the jury even wondered, it would have

suspected drug convictions. This is because Barley stated in the interview that he

had a long history of drug use and that his two previous marriages ended, in part,

because he used a lot of drugs and could not be the man of the house that was

needed. Also, he admitted he used crack cocaine often.

         Because there is little connection between the extraneous evidence and the

evidence that was the focus in the case—the facts surrounding Donna’s death and

Barley’s state of mind—we hold that this factor supports a finding of harmless

error.

            d. Whether the State emphasized erroneously admitted evidence

         The final factor is whether the State emphasized the error in closing

argument or otherwise. See Motilla, 78 S.W.3d at 355 (citing Llamas v. State, 12

S.W.3d 469, 471 (Tex. Crim. App. 2000)). The State did not. We find no

indication in the record that any attorney or witness drew attention to Barley’s

statements about prison or made any reference to his past criminal record during

the guilt-innocence phase of the trial. This factor also favors a finding of harmless

error.

         We conclude, based on the record as a whole, that Barley’s statements about

prison—made more than half way through the audiotaped interview—did not have

a substantial effect on the jury’s determination. Instead, we believe they had no


                                          18
more than a slight effect. Accordingly, we hold that the error in admitting the

evidence was harmless.3

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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




3
      The trial court gave this instruction to the jury: “There may be matters contained
      in the [defendant’s] statement that are uncorroborated by other evidence or
      testimony. You are instructed that statements of the defendant, if any, are subject
      to proof beyond a reasonable doubt.” Because the error is found to be harmless, it
      is not necessary for the Court to determine whether the instruction was adequate.

                                          19
