                                                                            PD-0038-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 2/17/2015 9:48:18 AM
                                                           Accepted 2/18/2015 9:25:01 AM
                                                                             ABEL ACOSTA
                                                                                     CLERK
                           PD-0038-15


                         IN THE
               COURT OF CRIMINAL APPEALS
                       OF TEXAS


                          GABRIEL LUNA,
                           PETITIONER

                                  v.

                      THE STATE OF TEXAS

                         **********

           Petition in Cause No. 2011-432,524, from the
          137th District Court of Lubbock County, Texas,
               Hon. John J. McClendon III presiding
      and Cause No. 07-13-00422-CR in the Court of Appeals
        for the Seventh Supreme Judicial District of Texas

                         **********

          PETITION FOR DISCRETIONARY REVIEW

                    David Crook, Crook & Jordan
                         Attorneys-at-Law
                           PO Box 94590
                          (806) 744-2082
                          (806) 744-2083 Fax
                        dcrook@nts-online.net

                     Attorney for the Petitioner,
                         GABRIEL LUNA




February 18, 2015
                       IDENTITY OF JUDGE, PARTIES, AND COUNSEL
                           (RULE 68.4(a), TEX. R. APP. PROC.)

A complete list of all parties to the trial court’s judgment or order appealed from, and the names
and addresses of all trial and appellate counsel includes:

                                GABRIEL LUNA, Petitioner
                                TDCJ#1908438
                                Allred Unit
                                2101 FM 369N
                                Iowa Park, TX 76367

                                THE STATE OF TEXAS, Respondent


FOR THE PETITIONER:                                          FOR THE STATE OF TEXAS:

DAVID CROOK, Crook & Jordan                                  MR. JEFF FORD
PO Box 94590                                                 ATTORNEY FOR THE
Lubbock, Texas 79493                                         STATE OF TEXAS
(806)744-2082                                                Office of the District Attorney
 (806) 744-2083 (fax)                                        Lubbock County
State Bar No. 05109530                                       PO Box 10536
Attorney for the Petitioner                                  Lubbock, TX 79408-3536
                                                             (806) 775-1100
TRIAL COURT JUDGE:                                           (806) 775-1154 (fax)

Hon. John J. McClendon, III                                  Hon. LISA McMINN
Lubbock County Courthouse                                    State Prosecuting Attorney
904 Broadway                                                 PO Box 12405
137th District Court, Lubbock County                         Austin, TX 78711
PO Box 10536                                                 (512) 463-1660
Lubbock, TX 79408-3536                                       (512) 463-5724 (fax)
(806) 775-1035
abeckham@co.lubbock.tx.us
[Court Coordinator e-mail]




                                                                                                     2
                       TABLE OF CONTENTS
                   (RULE 68.4(a), TEX. R. APP. PROC.)

                                                            PAGE


PARTIES ………………………………………………………...………………………………2

TABLE OF CONTENTS …………………………………………………………………….......3

INDEX OF AUTHORITIES ……………………………………………………………………..5

STATEMENT REGARDING ORAL ARGUMENT ……………………………………………7

STATEMENT OF THE CASE …………………………………………………………………..7

STATEMENT OF PROCEDURAL HISTORY ………………………………………..…..........7

PETITIONER’S GROUNDS FOR REVIEW ………………………………………………........8

NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING PETITIONER’S
OBJECTION IN THE TRIAL COURT DURING GUILT-INNOCENCE TO THE FACT
OF HIS INCARCERATION FOR AN UNRELATED OFFENSE DURING THE
PENDENCY OF HIS TRIAL………………………………………………………………

NUMBER TWO: THE COURT OF APPEALS ERRED IN HOLDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GUILT-INNOCENCE PHASE
IN FINDING EVIDENCE OF PETITIONER’S INCARCERATION FOR AN
UNRELATED OFFENSE DURING THE PENDENCY OF TRIAL MORE PROBATIVE
THAN PREJUDICIAL UNDER T.R.E. 403…………………………………………………

REASONS FOR REVIEW ……………………………………………………..………………8

AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.

AS TO GROUNDS NUMBER TWO: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.


                                                                    3
ARGUMENT………………………………………………………………………………….9

CONCLUSION AND PRAYER …………………………………………………...………..14

CERTIFICATE OF COMPLIANCE………………………………………………………….14

CERTIFICATE OF SERVICE ……………………………………………………………….15

APPENDIX …………………………………………………………………………………...16




                                                      4
                          INDEX OF AUTHORITIES
                      (RULE 68.4(b), TEX. R. APP. PROC.)

                                                                                   PAGE

Case Law, State

Andrade v. State, 246 S.W.3d 217, 227-228 (Tex. App.—Houston [14th Dist] 2007,
pet. ref’d)………………………………………………………………………………………..12

Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston (1st Dist.) 2012, pet. dis’d)………12

Gigliobianco v. State, 210 S.W.3d 637, 641-642 (Tex. Crim. App. 2006).………………….13,14

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). …………………………11

Robinson v. State, 368 S.W.3d 588, 603 (Tex. App.—Austin 2012, pet. ref’d)………………..13

Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008)………………………………12,13,14

State Statutory Law

TEX R. EVID. 401…………………………………………………………………………..10,11

TEX R. EVID. 402………………………….……………………………………………….10,11

TEX. R. EVID 403……………………………………………………………………………...12




                                                                                            5
                                          PD-0038-15


                                        IN THE
                              COURT OF CRIMINAL APPEALS
                                      OF TEXAS


                                        GABRIEL LUNA,
                                         PETITIONER

                                                v.

                                    THE STATE OF TEXAS

                                        **********

                         Petition in Cause No. 2011-432,524, from the
                        137th District Court of Lubbock County, Texas,
                               Hon. John J. McClendon presiding
                    and Cause No. 07-13-00422-CR in the Court of Appeals
                      for the Seventh Supreme Judicial District of Texas

                                       **********

                         PETITION FOR DISCRETIONARY REVIEW

                                 David Crook, Crook & Jordan
                                      Attorneys-at-Law
                                        PO Box 94590
                                       (806) 744-2082
                                       (806) 744-2083 Fax

                                   Attorney for the Petitioner,
                                       GABRIEL LUNA



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW GABRIEL LUNA, Petitioner, by and through his attorney of record,

DAVID CROOK, and petitions the Court of Criminal Appeals of Texas to exercise its

discretionary jurisdiction to review the judgment of the Court of Appeals for the Seventh District




                                                                                                6
of Texas, Amarillo, Texas. In support of this Petition, he would show this Honorable Court as

follows.


                        STATEMENT REGARDING ORAL ARGUMENT
                            (RULE 68.4(c), TEX. R. APP. PROC.)

      The grounds for review set forth in this petition concern the failure of the court of appeals

to follow binding precedent; oral argument would be helpful to the Court in distinguishing the

factual background of the case as shown in the record inasmuch as the facts of the case play an

important role in defining the implications of Petitioner’s argument.

                                 STATEMENT OF THE CASE
                               (RULE 68.4(d), TEX. R. APP. PROC.)

        On October 12, 2011, Petitioner was charged in a single-count indictment. He was

charged under Penal Code § 22.011(a)(2)(A) with Sexual Assault. The alleged victim was

Megan Luna, a child, and the offense date alleged was July 1, 2009 (Clerk’s Record [“CR”] p.

6).

           A non-evidentiary pretrial hearing was held in the case on July 20, 2011 (RR v. 2).

Petitioner’s jury trial on guilt-innocence commenced on November 4, 2013 in the 137th District

Court, Hon. John J McClendon presiding. He was convicted on November 6, 2013 (RR v. 5, p.

148-149). Sentencing proceedings took before the jury. On November 7, 2013, the jury

sentenced Petitioner to fifty (50) years imprisonment in the Texas Department of Criminal

Justice, Institutional Division (RR v. 6, p. 128, CR pp. 75). The Court sentenced Appellant

accordingly (CR pp. 80-83).

           Petitioner perfected appeal on November 27, 2013, with a handwritten pro se notice of

appeal (CR p. 70).

                            STATEMENT OF PROCEDURAL HISTORY


                                                                                                   7
                             (RULE 68.4(e), TEX. R. APP. PROC.)

        The Seventh Court of Appeals rendered its decision affirming petitioner’s conviction on

December 10, 2014. No motion for rehearing was filed by Petitioner. Petitioner’s counsel

moved for one extension, which was granted. This petition was then filed with the clerk of the

court of appeals within the time allowed by order of this Court on Petitioner’s Motion for

Extension.

GROUNDS FOR REVIEW

NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING PETITIONER’S
OBJECTION IN THE TRIAL COURT DURING GUILT-INNOCENCE TO THE FACT
OF HIS INCARCERATION FOR AN UNRELATED OFFENSE DURING THE
PENDENCY OF HIS TRIAL.

REASON FOR REVIEW

AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.

GROUNDS FOR REVIEW

NUMBER TWO: THE COURT OF APPEALS ERRED IN HOLDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GUILT-INNOCENCE PHASE
IN FINDING EVIDENCE OF PETITIONER’S INCARCERATION FOR AN
UNRELATED OFFENSE DURING THE PENDENCY OF TRIAL MORE PROBATIVE
THAN PREJUDICIAL UNDER T.R.E. 403.

REASON FOR REVIEW

AS TO GROUNDS NUMBER TWO: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.




                                                                                                 8
                                         ARGUMENT

GROUNDS NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING PETITIONER’S
OBJECTION IN THE TRIAL COURT DURING GUILT-INNOCENCE TO THE FACT OF
HIS INCARCERATION FOR AN UNRELATED OFFENSE DURING THE PENDENCY OF
HIS TRIAL.

                                Applicable Portions of the Record

      Both of Petitioner’s grounds for requested review herein stem from the State’s use at trial

before the jury during guilt-innocence phase of the fact that Petitioner was incarcerated for an

unrelated offense during the pendency of the instant case.

      After jury selection and before trial to the jury started, the State announced that (according

to it) the alleged victim disclosed the supposed sexual assault because she learned that Appellant

was being released from prison. The State was apparently seeking to give a basis for introducing

that matter before the jury. The State announced that this supposed “fact” was “well

documented.” The Court responded that the motion in limine on that point was still in effect,

and told the State to make sure the alleged victim kept her testimony kosher in that regard (RR v.

4, pp. 7-8).

      The alleged victim in this case, Megan Lopez, made a rather sweeping statement regarding

having no further communications of any sort with Petitioner after the supposed sexual assault.

Defense counsel then approached the witness and proffered a letter dated after the alleged sexual

assault. The witness basically authenticated it, and defense counsel offered it as D1. The State

claimed that the defense had “opened the door” to unspecified matters. With the jury out, the

State claimed that the alleged victim’s letter, apparently sent to Petitioner in prison, was relevant

to show the victim’s “state of mind” [?]. The Court considered the matter after defense counsel

made a relevancy objection (RR v. 4, pp. 106-107). After considering the question, the Trial




                                                                                                    9
Court decided that the State should be allowed to address the fact of Appellant’s incarceration

before the jury, that the door had been opened. The Court indicated its intention of allowing the

matter of Petitioner’s incarceration into evidence, and said that, “I don’t think the prejudicial

effect would outweigh the probative value, and I am prepared to give a limiting instruction,

which I’m going to do” (RR v. 4, p. 109). With the jury back in, the Court admitted D1 into

evidence. The Court then gave a limiting instruction about Appellant being “in jail.” This was

before the matter was actually in evidence (RR v. 4, p. 111). On redirect, the alleged victim said

that she reported the supposed event when she did, two and a half years after the assault, because

she found out Appellant was “getting out” [of jail] (RR v. 4, p. 119). She sent “that letter” to her

father [Petitioner] “in jail” (RR v. 4, p. 120).

                        Question of Error and Rule 401; Binding Precedent

        Petitioner asserts that the introduction of testimony that he was incarcerated after the

alleged event at issue for an unrelated (both factually and conceptually) offense was plainly

erroneous under T.R.E. 401 and 402. T.R.E. 401 defines “Relevant evidence” as meaning

evidence “having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” TEX. R. EVID. 401. Rule 402 has it that irrelevant evidence is admissible. TEX R.

EVID. 402.

      The State argued that the defense had somehow “opened the door” to evidence of

Petitioner having been incarcerated after the event at issue, which the State’s charging instrument

dated to approximately July 1, 2009. Petitioner supposedly “opened the door” by the fact of the

alleged victim saying something that was either erroneous due to a memory lapse or else a lie,

namely that she had never contacted him after the event. Defense counsel then produced a letter




                                                                                                    10
written by her after that time. How that action opened the door to the fact of Petitioner’s

subsequent incarceration is unclear, at least to the undersigned.

      The Court of Appeals agreed with the State’s position in the Trial Court that allowing the

fact of Petitioner’s previous incarceration into evidence in guilt-innocence phase was not error

(Opinion of the Court of Appeals, pp. 4-5).

      In the instant case there was simply no logical reason for permitting proof of Petitioner’s

incarceration [for a drug offense, as shown by the record] after his counsel impeached the alleged

victim by catching her in an apparent lie about severing communications with him after the

alleged sexual assault. One should not be able to “open the door” to inadmissible evidence.

Trial defense counsel crossed the alleged victim with the letter because the alleged victim had

been caught in either a major lapse of memory or a major lie. Petitioner should not have been

punished for the alleged victim’s apparent malfeasance because evidence of the fact of his

incarceration was irrelevant under Rules 401 and 402. This is so because it cannot be said that

this evidence had “any tendency to make the existence of any fact of consequence to the

determination of the action more or less probable, as required by Rule 401. “In deciding whether

a particular piece of evidence is relevant, a trial court judge should ask ‘would a reasonable

person, with some experience in the real world believe that the particular piece of evidence is

helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit.’”

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). In holding the evidence

admissible, the Trial Court violated Rules 401 and 402, and the holding in Montgomery. A

defense counsel showing that an alleged victim is probably a liar should not be the occasion for

allowing in irrelevant evidence, in an apparent attempt to undo the damage done to the State’s

case by defense counsel in doing her job.




                                                                                                    11
GROUNDS NUMBER TWO: THE COURT OF APPEALS ERRED IN HOLDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GUILT-INNOCENCE PHASE IN
FINDING EVIDENCE OF PETITIONER’S INCARCERATION FOR AN UNRELATED
OFFENSE DURING THE PENDENCY OF TRIAL MORE PROBATIVE THAN
PREJUDICIAL UNDER T.R.E. 403.

                                        The Record

       The discussion of the applicable portions of the record given under Appellant’s First

Grounds, supra, is incorporated by reference into this his Second Grounds as if set out at length.

The issue for this grounds is whether it was error under Rule 403 to allow into evidence, in guilt-

innocence phase, the fact of Petitioner’s incarceration on an unrelated drug charge as complained

of, supra. The Court of Appeals found otherwise.

                   Did the Trial Court and Reviewing Court Err under Rule 403?

       A trial court’s ruling on whether to exclude evidence because its probative value is

substantially outweighed by the danger of unfair prejudice is also measured by an abuse of

discretion standard and will not be reversed if the ruling is within the zone of reasonable

disagreement. Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston (1st Dist.) 2012, pet.

dis’d). Petitioner also must contend with holdings to the effect that when a trial court balances

the probative value of relevant evidence against the danger of unfair prejudice, a presumption

exists that favors the evidence’s probative value. TEX. R. EVID. 403, see Andrade v. State, 246

S.W.3d 217, 227-228 (Tex. App.—Houston [14th Dist] 2007, pet. ref’d), and Burke, supra, at

258.

       The basic bifurcated analysis under Rule 403, which the Trial Court alluded to, is (1) to be

admissible, the uncharged act or evidence must be relevant to a material issue in the case and (2)

the probative value of that evidence is not significantly outweighed by its prejudicial effect.

Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008). Relevant evidence is generally

admissible unless its probative value is substantially outweighed by other concerns, such as


                                                                                                    12
misleading the jury. For relevant evidence to be excluded, there must be a clear disparity

between its probative value and it harmful effects. Robinson v. State, 368 S.W.3d 588, 603 (Tex.

App.—Austin 2012, pet. ref’d). Petitioner avers that the fact that he was in jail or prison for a

drug charge that was not related to the charge being tried was not “relevant to a material issue in

the case” as per Segundo. Defense counsel had managed to impeach the alleged victim

effectively. The alleged victim should have told the truth and/or gotten her facts straight before

making a misstatement. If the alleged victim had not told a lie or had a substantial lapse of

memory, whatever it was, there would have been no occasion for permitting the State to drag in

the fact of Petitioner’s incarceration. The whole dispute arose in the context of the alleged

victim leaving herself open to impeachment, a state of affairs well removed from anything

relevant to a material issue in the case, as per Segundo.

       Petitioner also avers that the probative value of the evidence at issue was substantially

outweighed by other [obvious] concerns, such as the jury interpreting the fact that Petitioner was

incarcerated to be indicative of bad character. When analyzing the second prong of the

bifurcated 403 test for admissibility, reviewing courts look at (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 a decision on an improper basis, and (4) any tendency of

the evidence to confuse or distract the jury from the main issues, and (5) any tendency of the

evidence to be given undue weight by the jury, and (6) the likelihood that the 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, 641-642 (Tex. Crim. App. 2006). The facts of the case

militate against the admissibility of the evidence under this test.

       Again, the evidence must be relevant to the case as per the first prong postulated in




                                                                                                    13
Segundo, supra, and other holdings before there is any question of admissibility under Rule 403.

Petitioner avers that his stint of incarceration after the supposed event was not relevant to the

issue for jury determination, and was not fairly before the jury due to Appellant’s having

“opened the door” in any sense. Nor was the evidence admissible under the second prong of

Rule 403 [as postulated by Segundo, supra] in the admission of evidence. This remains true

despite the abuse of discretion standard and the presumption for admissibility in doubtful cases.

Petitioner avers that by holding otherwise, the Amarillo Court of Appeals misread the

requirements of Rule 403 and Segundo and Gigliobianco.

                        CONCLUSION AND PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Petitioner GABRIEL LUNA, prays that the

Court of Criminal Appeals grant his Petition for Discretionary Review, and that after submission,

this Court reverse the decision of the Court of Appeals and remand the Cause.


                                                              Respectfully submitted,

                                                              David Crook
                                                              Crook & Jordan
                                                              Attorney-at-law
                                                              PO Box 94590
                                                              Lubbock, Texas 79493
                                                              (806) 744-2082
                                                              (806) 744-2083 Fax
                                                              dcrook@nts-online.net
                                                              Attorney for the Petitioner,
                                                              GABRIEL LUNA

                                                              _/S/ David Crook
                                                              DAVID CROOK
                                                              Texas State Bar No. 05109530

          CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(2)(D)
      This is to certify that the length of the foregoing Petition for Discretionary Review
conforms with the Texas Rule of Appellate Procedure 9.4, in that the brief, computer-generated,


                                                                                                    14
is 1,992 words, which is no longer than 4,500 words, exclusive of the pages containing the
identity of the parties and counsel, any statement regarding oral argument, the table of contents,
the index of authorities, the statement of the case, the issues presented, the signature, and the
proof of service.
                                                            /s/ David Crook _________________
                                                              David Crook

                                 CERTIFICATE OF SERVICE

       This is to certify that a true and accurate copy of the above and foregoing PETITION
FOR DISCRETIONARY REVIEW was mailed to the Hon. Jeff Ford, attorney for the State of
Texas, at his office address of Office of the District Attorney, PO Box 10536, Lubbock, TX
79408-3536. It was also mailed to Hon. Lisa McMinn, State Prosecuting Attorney, P.O. Box
12405, Austin, Texas, 78711, on February 9, 2015.



                                                                      /s/David Crook
                                                                      David Crook




                                                                                                    15
APPENDIX




           16
                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                           No. 07-13-00422-CR


                                   GABRIEL LUNA, APPELLANT

                                                     V.

                                THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 137th District Court
                                      Lubbock County, Texas
            Trial Court No. 2011-432,524, Honorable John J. "Trey" McClendon, Presiding

                                         December 10, 2014

                                  MEMORANDUM OPINION
                        Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant, Gabriel Luna, appeals the trial court’s   judgment   by   which   he   was  

convicted   of   sexual   assault   of   a   child   and   sentenced   to   fifty   years’   confinement. 1 He

contends on appeal that the trial court reversibly erred when it admitted testimony

regarding  appellant’s  post-offense incarceration for an unrelated offense. We will affirm.




        1
            See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West Supp. 2014).
                                  Factual and Procedural History


        Appellant was charged with and convicted of sexually assaulting his daughter,

M.L.,  in  2009,  when  M.L.  was  fifteen  years  old.    The  State’s  evidence  of  appellant’s  guilt  

consisted  primarily  of  M.L.’s  account of the assault. In an apparent effort to undermine

the   credibility   of   M.L.’s testimony regarding the assault, appellant introduced the fact

that M.L. continued to write letters to appellant after the alleged assault, suggesting that

no assault occurred and the two shared a fairly normal father-daughter relationship.

The State sought to make clear to the jury that M.L. wrote to appellant only while

appellant was incarcerated such that he could not be around her and she felt safe from

him; ostensibly, the State thereby sought to correct the false impression that there

remained a natural, bonded father-daughter relationship.                   The trial court permitted

evidence of the letter and,   over   appellant’s   objections, also admitted evidence that

appellant was incarcerated at the time M.L. wrote the letter at issue. The trial court

made clear that the State was not permitted to introduce any evidence of the offense for

which appellant was incarcerated at that time. Further, the trial court strictly limited the

jury’s  consideration  of  the  fact  that  appellant  was  incarcerated  and  expressly  directed it

not to consider that fact as any evidence that appellant was guilty of the instant offense.


        Ultimately, the Lubbock County jury found appellant guilty of the charged offense

and recommended punishment of fifty years’   imprisonment.      The   trial   court   imposed

sentence accordingly, and appellant timely appealed to this Court, where he now

contends in two issues that the trial court erred by admitting evidence that he was

incarcerated at the time M.L., the complainant, corresponded with him.



                                                    2
                                     Standard of Review


       We  review  the  trial  court’s decision to exclude or admit evidence for an abuse of

discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en

banc) (citing Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987) (en banc)).

The test for abuse of discretion is a question of whether the trial court acted without

reference to any guiding rules and principles. Id. at 380. We  will  uphold  the  trial  court’s

ruling “so long as the result is not reached in an arbitrary or capricious manner.”   Id.

Further, we will sustain the trial court’s decision if that decision is correct on any theory

of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990) (en banc).


                                           Analysis


       Appellant challenges the admission of the evidence of his incarceration on two

fronts: (1) its relevance and (2) its prejudicial effect versus its probative value. We will

address those aspects of the evidence in turn.


Relevance


       In his first issue, appellant complains that, by admitting M.L.’s   testimony   that  

appellant was incarcerated at the time she sent him the letter at issue, the trial court

admitted irrelevant evidence. The State contended below and reasserts on appeal that

appellant left a false impression when he cross-examined M.L. about corresponding

with appellant, suggesting that M.L. and appellant maintained a normal father-daughter

relationship and, in turn, attempting to undermine the credibility of her testimony of the


                                               3
assault. Doing so, the State maintains, opened the door for it to introduce the fact that

appellant was incarcerated on a seemingly unrelated matter at the time of the

correspondence, correcting any impression otherwise left concerning the relationship

between father and daughter.


        “Relevant evidence” means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence. TEX. R. EVID. 401. The parties

speak   in   terms   of   “opening   the   door”   when   addressing   the   relevance   of   the   evidence  

that appellant was incarcerated when M.L. wrote him the letter introduced into evidence.

The general idea behind the   notion   of   “opening   the   door” is that “once one party has

begun an inquiry into a particular subject, that party cannot complain when the opposing

party desires to go into the details of that subject.” Sherman v. State, 20 S.W.3d 96,

101 (Tex. App.—Texarkana 2000, no pet.). Evidence used to fully explain a matter

introduced by the other party need not ordinarily be independently admissible. See id.


        On cross-examination   of   M.L.,   appellant’s   counsel   questioned her about any

correspondence she had maintained with appellant and ultimately presented evidence

of a letter M.L. had written and sent to appellant only months after the alleged date of

the offense. It appears that  appellant’s  strategy  in  doing  so  was  to   leave the jury with

the impression that M.L. and appellant shared a rather normal father-daughter

relationship, one in which she felt secure enough to write him friendly letters while he

was away. Appellant may have anticipated that such a relationship would undermine

M.L.’s   testimony   that   appellant   sexually   assaulted   her. Evidence that appellant was

incarcerated at the time M.L. wrote him letters—that he was in what the State calls a

                                                      4
“controlled   environment”   from   which   he   could not physically reach M.L.—arguably

diminishes   the   impact   of   appellant’s   evidence   that   M.L.   continued to correspond with

him after the date the offense was alleged to have occurred. On that basis, it makes the

existence of a normal father-daughter relationship less probable, and appellant made

the father-daughter relationship a fact of consequence by raising the issue of the letter

in the first place as a means of undermining M.L.’s  credibility. See TEX. R. EVID. 401. In

other words, by admitting evidence of the letter, appellant cannot now complain that the

State emphasized to the jury the details surrounding the letter from M.L. to appellant.

See Sherman, 20 S.W.3d at 101. The trial court did not abuse its discretion when it

concluded   that   appellant’s   incarceration   was   relevant   to   the   issues   surrounding   M.L.’s  

letter  to  appellant.    We  overrule  appellant’s  contention  to  the  contrary.


Prejudicial Effect v. Probative Value


          We now evaluate the probative value of that evidence in light of its prejudicial

effect.     In effect, appellant now contends   that,   even   if   evidence   of   appellant’s  

incarceration  at  the  time  of  M.L.’s  letter  to  him   was relevant,  the  evidence’s   prejudicial

effect substantially outweighed its probative value.


          Indeed,   even   relevant   “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.”    See TEX. R. EVID. 403. When called on to analyze evidence in

light of a Rule 403 objection, the trial court must balance the following considerations:

(1) the inherent probative force of the proffered evidence along with (2) the proponent’s


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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. See Gigliobianco v. State, 210 S.W.3d

637, 641–42 (Tex. Crim. App. 2006).


       Standing alone, perhaps, the probative value of evidence that appellant was

incarcerated at the time could be said to have minimal probative value. However, in the

context of this trial and in light of the state of the record before the trial court, the fact

that appellant was incarcerated when M.L. sent the letter in question is rather valuable

in that it provides the jury with a more complete understanding of the facts and

circumstances surrounding M.L.’s  letter to appellant. Appellant appears to have wanted

the jury to consider the fact that M.L. continued to correspond with appellant even after

the date of the offense for which he was on trial. That being so, the jury was entitled to

consider the totality of   the   facts   and   circumstances   surrounding   M.L.’s   letter to

appellant. Based on the evidence before it, the trial court could have concluded that,

only when armed with the full context surrounding the correspondence, could the jury

assign the appropriate weight and value to the fact that M.L. sent appellant the letter.


       The probative value of the letter and of the fact that appellant was incarcerated

when he received it increases when we consider   that   the   State’s   evidence   consisted  

primarily of  M.L.’s  account of the offense. As much as appellant relied on the evidence

of  the  letter  to  undermine  M.L.’s  testimony,  the  State,  as  proponent  of  the  evidence  of  

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appellant’s  incarceration  at  the  time of the letter, had a pressing need for that evidence

to  diminish  the  impact  the  letter  may  have  had  on  the  State’s  most  critical  evidence  of  

the assault. See id. at 641. The trial court could have reasonably concluded that the

State’s  need  for  the  evidence weighed in favor of its admission.


       We cannot overlook the fact that the evidence revealed to the jury that appellant

was incarcerated, at least suggesting that the evidence raised a character issue relating

to extraneous offenses. In doing so, there is some tendency of the evidence to distract

the jury from the main issue and to suggest  decision  on  an  improper  basis:  appellant’s  

general criminal nature. See id. Aware of these considerations and in an effort to guard

against such a tendency, the trial court was careful to admonish M.L. not to allude to the

nature of the offense for which appellant was incarcerated at the time M.L. wrote and

sent the letter; the jury was permitted to consider for a limited purpose only that

appellant was incarcerated, nothing concerning the details of the incarceration. The trial

court also issued the following specific instruction to the jury regarding its consideration

of the evidence that appellant was incarcerated at the time of the letter:


       Ladies and Gentlemen of the Jury, I anticipate here in just a few minutes
       that – that as a part of this letter, that there will be testimony that will
       include that this letter was sent to [appellant] in jail. You are in no way to
       deduce from that that he is guilty of anything in – in regards to this. It is –
       you can simply use it as evidence that that is where she sent the letter.

       You are not to make any assumptions, based upon her sending it to him in
       jail, that he is guilty of this particular offense. Your – you will make your
       decisions based solely upon the evidence presented in court. All right.

By this instruction, the trial court clarified the import of the evidence, cautioned the jury

against giving that evidence undue weight, and reminded the jury of its duty to properly

consider the evidence as it relates to the offense at bar. In other words, the trial court

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equipped the jury with the framework and limitation with which it could properly evaluate

the probative force of the evidence of  appellant’s  incarceration at the time of the letter.

See id.


       Finally, the record demonstrates that the presentation of the evidence that

appellant was incarcerated when M.L. sent him the letter did not “consume an

inordinate amount of time” and did  not  “merely repeat evidence already admitted.”    See

id. at 641–42. The trial court could have concluded that these factors weighed in favor

of admission of the evidence.


       Based on our analysis of the relevant factors, we cannot say that the trial court

abused its discretion when   it   admitted   evidence   of   appellant’s   incarceration   over  

appellant’s  Rule  403  objection.    We  overrule  appellant’s  second  and  final  point  of  error.


                                                Conclusion


       Having   overruled   both   of   appellant’s   points   of   error,   we   affirm   the   trial   court’s  

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                                   Mackey K. Hancock
                                                       Justice


Do not publish.




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