                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-16-00011-CR

STANDLEY DELANO DAVIS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                               From the 12th District Court
                                  Walker County, Texas
                                  Trial Court No. 27032


                           MEMORANDUM OPINION


       Standley Davis appeals from a conviction for the offense of aggravated assault

with a deadly weapon, for which he was sentenced to forty years in prison. TEX. PEN.

CODE ANN. § 22.02 (West 2011). Davis complains that the trial court abused its discretion

by admitting evidence regarding two prior convictions pursuant to Rule of Evidence 609

and regarding statements made by the defendant to the victim prior to the offense

pursuant to Rule of Evidence 404(b). Because we find no reversible error, we affirm the

judgment of the trial court.
                                       THE OFFENSE

        The victim and a residence owner were outside in the owner's yard at

approximately 2:00 a.m. one night when Davis approached them. The victim and Davis

began having an argument. The victim testified that Davis tried to pull her purse off of

her shoulder and she began kicking and fighting back. Davis grabbed a bottle and hit the

victim over the head with it. The victim testified that she attempted to use her cell phone

which had fallen on the ground to call 9-1-1 but Davis grabbed it and threw it over a fence

into a cemetery. The victim also stated that Davis stole approximately $65 from her purse.

The victim ran to get help and Davis was gone when she returned. The victim and the

owner identified Davis as the individual who assaulted the victim with the bottle.

                                 ADMISSION OF EVIDENCE

        Davis's two issues complain that the trial court abused its discretion in the

admission of evidence during the trial. 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). 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 v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009). If the trial court's ruling on admissibility is correct under any

applicable legal theory, we will hold that the trial court did not abuse its discretion even

if it gave a wrong or incomplete reason for the ruling. See De La Paz, 279 S.W.3d at 344.


Davis v. State                                                                        Page 2
RULE 609

        In his first issue, Davis complains that the trial court abused its discretion by

admitting evidence pursuant to Rule 609 of the Rules of Evidence of two prior convictions

for assault with bodily injury—family violence. Davis argues that the convictions were

not admissible because there was no evidence that they were crimes of moral turpitude

because no evidence was presented as to the identity of the victim. Rule of Evidence 609

provides that evidence of a witness's prior conviction shall be admitted as impeachment

evidence if the crime was a felony or a misdemeanor involving moral turpitude, and the

court determines that the probative value of admitting the prior conviction outweighs its

prejudicial effect. TEX. R. EVID. 609(a). We have found no Texas appellate court that has

held that assault with bodily injury based on family violence is automatically admissible

as a crime of moral turpitude. Some intermediate appellate courts have held that if the

victim is female or a child, the offense constitutes a crime of moral turpitude; however,

there was no evidence in this record to establish the gender of the victim. See Hardeman

v. State, 868 S.W.2d 404, 407 (Tex. App.—Austin 1993, pet. dism'd) (discussing

progression of case law regarding female victims and holding that conviction for

misdemeanor assault "by a man against a woman is a crime involving moral turpitude

and therefore is admissible as impeaching evidence under [R]ule 609"); see also Campos v.

State, 458 S.W.3d 120, 149 (Tex. App.—Houston [1st Dist.] 2015) (determining that

conviction for misdemeanor assault on minor family member constitutes crime of moral


Davis v. State                                                                     Page 3
turpitude and may be used for impeachment purposes if other requirements are met),

vacated on other grounds, 466 S.W.3d 181, 182 (Tex. Crim. App. 2015). Without knowing

the gender or identity of the victim in the prior offenses, we will assume without deciding

that the offenses did not constitute crimes of moral turpitude.

        We must determine whether the admission of this evidence constitutes harmful

error. Because admission of evidence is subject to non-constitutional error analysis, we

evaluate whether Davis's substantial rights were affected. TEX. R. APP. P. 44.2(b). "A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury's verdict." Schmutz v. State, 440 S.W.3d 29, 39 (Tex.

Crim. App. 2014). A criminal conviction should not be overturned for non-constitutional

error if, after examining the record as a whole, this Court has fair assurance that the error

did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998). In this analysis, we consider "everything in the record, including

any 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." Morales v. State, 32 S.W.3d

862, 867 (Tex. Crim. App. 2000). We also consider the jury instruction given by the trial

court, the State's theory, any defensive theories, closing arguments, and even voir dire, if

material to Davis's claim. Id.




Davis v. State                                                                         Page 4
        Considering the record as a whole, we hold that the trial court's error did not have

a substantial and injurious effect or influence on the jury's verdict. Davis was only briefly

questioned about his convictions, and Davis testified that he thought that the victim in

those offenses was his cousin. No other evidence was introduced regarding these

convictions, and the prosecutor did not emphasize the convictions during closing

argument.

        The evidence against Davis consisted of the testimony of the victim, the owner of

the residence where the offense took place, and Davis. Davis was indicted for aggravated

robbery, but was convicted of the offense of aggravated assault. The victim and the

residence owner testified that it was Davis who hit the victim in the head with a bottle.

Davis's defensive theory was that he was not even present in this state when the offense

occurred. The victim and Davis were not related in any way. It is not apparent from the

record that the jury placed any measurable significance on Davis's convictions for assault

with bodily injury on a family member. We conclude that the trial court's error was

harmless.

        In one sentence in his brief, Davis contends that the convictions should have been

excluded because there was no finding of probative value versus prejudice pursuant to

the second part of Rule of Evidence 609. However, Davis did not object on this basis to

the trial court, and therefore error was not preserved for our review. TEX. R. APP. P.

33.1(a). We overrule issue one.


Davis v. State                                                                         Page 5
RULE 404(B)

        In his second issue, Davis complains that the trial court abused its discretion by

admitting testimony by the victim alleging that Davis had made threats to rob the victim

in the days prior to the assault. The State argued that the evidence was relevant to the

intent to commit the offense of robbery against the victim. The victim testified that Davis

had threatened to "get her" or to "rob her" in the weeks prior to the offense. The victim

and Davis had encountered each other while walking to a soup kitchen for meals. Davis

argues that the evidence was not admissible at the time it was offered because it was

during the testimony of the first witness who was the victim, and intent was not in

controversy at that time. The trial court gave the jury a limiting instruction at the time

the evidence was presented to the jury that they were only to consider the evidence for

purposes of identity.

        Under the Texas Rules of Evidence, evidence of other crimes, wrongs, or acts is

not admissible "to prove the character of a person in order to show action in conformity

therewith." TEX. R. EVID. 404(b). But it may "be admissible for other purposes, such as

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

of mistake or accident." Id. The exceptions listed under Rule 404(b) are neither mutually

exclusive nor collectively exhaustive. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009). "Rule 404(b) is a rule of inclusion rather than exclusion" and excludes only




Davis v. State                                                                       Page 6
that evidence that is offered solely for the purpose of proving conduct in conformity with

bad character. Id.

        Even if we assume without deciding that the trial court abused its discretion by

admitting this evidence, we find that the error is harmless. In determining whether this

error harmed Davis or not, we must disregard this error unless it affected Davis's

"substantial rights." See TEX. R. APP. P. 44.2(b); Hernandez v. State, 176 S.W.3d 821, 824

(Tex. Crim. App. 2005) (applying Rule 44.2(b) harm standard when evaluating trial

court's error in admitting Rule 404(b) evidence).

        Even if we disregard the testimony concerning Davis's alleged threats to "get" or

"rob" the victim, we conclude that the record contains overwhelming evidence of Davis's

guilt, including the testimony of the victim as well as the residence owner who identified

Davis as the individual who hit the victim with the bottle. Additionally, Davis's defense

was that he was not even in Texas at the time of the offense, which the jury clearly did

not believe. The fact that Davis was not found guilty of aggravated robbery also

demonstrates that the jury was not unduly influenced by the testimony. Therefore, "we

have fair assurance that the error did not influence the jury, or had but slight effect." Id.

at 553; see Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008) (concluding that trial

court's error "was harmless in light of the overwhelming evidence of guilt shown by other

evidence"). Moreover, we note that the trial court properly instructed the jury that it must

not consider testimony concerning Davis's extraneous acts unless it believed beyond a


Davis v. State                                                                         Page 7
reasonable doubt that Davis committed those acts and that, even then, it must not

consider the testimony as evidence that Davis acted in conformity with a bad character.

We assume that the jury followed these instructions. See Miles v. State, 204 S.W.3d 822,

827-28 (Tex. Crim. App. 2006) ("[I]n the absence of evidence to the contrary, we will

assume that the jury followed its written instructions."). Because we conclude that the

admission of extraneous-act testimony did not affect Davis's substantial rights, we

conclude that any error the trial court committed in admitting the evidence is harmless.

Accordingly, we overrule Davis's second issue.

                                       CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 14, 2016
Do not publish
[CRPM]




Davis v. State                                                                         Page 8
