             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00338-CR
     ___________________________

   DAVID JOE ROWLAND, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 213th District Court
         Tarrant County, Texas
       Trial Court No. 1443877D


  Before Sudderth, C.J.; Meier and Kerr, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       A jury convicted appellant David Joe Rowland of burglarizing a building, and

the trial court sentenced him to eight years in prison. On appeal, Rowland argues in

one issue that the trial court, by admitting evidence that he absconded from an earlier

trial setting, reversibly erred. We affirm.

I. Background generally

       Matthew Bruce, who was working security at Harbor One on Eagle Mountain

Lake shortly after midnight on October 22, 2015, heard a loud metallic crash coming

from the other side of Flight, a restaurant. Going over to investigate, Bruce observed

two men pushing a metal box up a grassy slope and a BMW with temporary-license-

plate number 688-085D. Per his security company’s protocol, Bruce instructed the

two men to leave; after loading the metal box in the BMW, the men complied.

Checking the area around Flight, Bruce found nothing suspicious, such as broken

windows.

       Later that morning, around 9:00 a.m., when Flight’s manager, Keith

Armstrong, arrived for work, he discovered that the restaurant’s small safe was

missing. Alarmed, Armstrong first called Flight’s owner, David Bryan, to determine

whether he had moved it; when Armstrong learned that Bryan had not, he then called

9-1-1. Later Bryan came to the restaurant, and both men reviewed its surveillance

videos. They had no difficulty identifying Rowland by name as one of the two men on



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the video and inside the locked restaurant that night: both knew Rowland as Flight’s

general contractor for renovations and repairs.

       Further tying Rowland to the burglary, Bruce—the security guard—identified

Rowland in court as one of the two men he saw on October 22, 2015.

       As for the temporary-license-plate number that Bruce took down, Detective

Carlos Cespedes determined that Rowland was the BMW’s owner.

       During trial, over Rowland’s objection, the State put on evidence that he had

appeared at an earlier trial setting and was arraigned but then failed to return for jury

selection.

II. Rowland’s appellate complaint

       In his only issue, Rowland argues that the trial court erred by admitting

evidence that he had left during a previous court setting because the probative value

of that evidence was substantially outweighed by the danger of unfair prejudice. See

Tex. R. Evid. 403. We disagree.

       A. Background

       Before the State presented evidence that Rowland had absconded at an earlier

trial setting, Rowland himself testified outside the jury’s presence to explain why. He

asserted that his previous attorney was not ready for trial and, in support of that

proposition, noted that his attorney had orally moved for a continuance.

       Underscoring Rowland’s distrust of his previous attorney, Rowland and

defense counsel then engaged in the following direct examination:

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               Q. [Defense counsel] And so in regards to—in regards to—you
       were not really prepared to go to trial. You did not come back to court;
       is that correct?

              A. [Rowland] Yes and no. I felt like [my previous attorney] didn’t
       have my best interest at heart, and I didn’t know what to do. It didn’t
       have anything to do with me feeling guilt. I felt like I was going to be
       railroaded, and I had already entered into discussions with another
       attorney. And I was—that helped to use that $5,000 to get another
       attorney to help represent me.

Their dialogue continued:

              Q. So you didn’t run because you felt—because of your guilt or
       presumption o[f] guilt or inclination of guilt. You’re telling the Court
       that you didn’t come back after being arraigned so you could seek
       different counsel; is that right?

              A. That was my thinking yes, because I showed up to every court
       setting, wanting this to be behind me. I wanted it resolved. I didn’t
       understand why we were going to court for a civil matter between myself
       and [Bryan].

But Rowland later admitted that changing counsel was not one of the reasons he

articulated when moving for a continuance at the earlier setting. And after absconding

in February 2017, Rowland further admitted that he did not turn himself in. When

finally arrested in August months later, the record showed that he had pleaded

indigence, and the trial court appointed him counsel.

       Over Rowland’s objection that the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice, the trial court permitted

the State to present its evidence. See id.




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       B. Law pertaining to escape or flight1

       Evidence that the defendant fled or escaped is admissible as a circumstance

from which the factfinder may infer guilt. Bigby v. State, 892 S.W.2d 864, 883 (Tex.

Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995). To warrant admissibility, the

escape or flight must relate to the offense being prosecuted. Id.; Guajardo v. State,

378 S.W.2d 853, 856 (Tex. Crim. App. 1964) (“The [S]tate had the right to prove

flight by appellant as evidence of his guilt. Proof that he failed to appear for trial and

that his bond was forfeited was admissible as evidence tending to show flight.”). To

exclude such evidence under relevancy challenges, the burden shifts to the defendant

to affirmatively show that the escape or flight was directly connected to some other

transaction and, further, was not connected to the offense at trial. Bigby, 892 S.W.2d at

883.

       Because escape and flight are evidence “of a circumstantial nature,” their

admissibility is “not conditioned on a showing that guilt is the only reasonable

conclusion.” Hodge v. State, 506 S.W.2d 870, 873 (Tex. Crim. App. 1974) (op. on

reh’g). If the defendant offers evidence that the escape and flight may have arisen

from some other cause, but its connection to the offense on trial remains a logical

one, the evidence would still be admissible; in that instance, the defensive “other

cause” evidence simply goes to the weight to give the evidence. Id.


       Flight the action, not the restaurant.
       1




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       C. Standard of review

       As long as the result is not outside the zone of reasonable disagreement, we

uphold a trial judge’s decision to admit evidence. Layton v. State, 280 S.W.3d 235,

240 (Tex. Crim. App. 2009). When reviewing the trial court’s rule 403 determination,

we are to reverse the trial court’s decision rarely and only upon a clear abuse of

discretion. Distefano v. State, 532 S.W.3d 25, 32 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d). In determining whether the trial court abused its discretion, we

balance

       (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. Of course, these factors may well blend together in practice.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote

omitted); see Distefano, 532 S.W.3d at 32.

       The test for an abuse of discretion is not whether the facts present an

appropriate case for the trial court’s actions but whether the trial court acted without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,

380 (Tex. Crim. App. 1990) (relying on Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986)). Put another

way, the test is whether the trial court acted arbitrarily or unreasonably. Id. Simply

                                             6
because the trial court decided a matter within its discretionary authority in a manner

different than an appellate judge would have in a similar circumstance does not show

an abuse of discretion. Id.

       D. Discussion

       Rowland contends his testimony shows that his absence was not in any way

related to the offense charged but was, instead, related to his fear that his attorney

would render ineffective assistance, so—he concludes—to the extent the jury might

attribute his absence to a guilty conscience, it would do so unfairly; thus, the probative

value of attributing his absence to a guilty conscience would be substantially

outweighed by the danger of unfair prejudice.

      But Rowland’s explanation—that he was afraid the jury would convict him

because his attorney was allegedly not prepared—is directly connected to the offense

at trial. As such, his attempt to explain his motive behind not returning as something

other than a guilty conscience did not go to the evidence’s admissibility but to its

weight. See Hodge, 506 S.W.2d at 873.

       The other balancing factors also favored admitting the evidence:

       • Although the State had other evidence against Rowland, evidence showing
         that Rowland’s own conduct circumstantially confirmed his guilt was
         substantively unique. See Distefano, 532 S.W.3d at 32.

       • Flight is a proper basis from which to infer guilt. See Bigby, 892 S.W.2d at
         883.

       • Guilt was not collateral but was central to the trial. See Distefano, 532 S.W.3d
         at 32.

                                            7
      • Neither Rowland nor the State addressed the significance of his absconding
        during final arguments. The State made no effort to have the jury give this
        evidence undue weight. See id. It was but one piece among many.

      • The State’s testimony did not require inordinate time. See id. Its witness
        testified without elaboration or fanfare that Rowland had appeared for his
        arraignment at the earlier trial setting but had failed to return for jury
        selection. For his part, Rowland briefly cross-examined the State’s witness
        but presented no evidence attempting to explain his conduct to the jury.

      We hold that the trial court’s decision to admit the evidence did not fall outside

the zone of reasonable disagreement, so the trial court did not abuse its discretion by

admitting it over Rowland’s rule 403 objection. See Layton, 280 S.W.3d at 240;

Montgomery, 810 S.W.2d at 380.

III. Conclusion

      We overrule Rowland’s sole issue and affirm the trial court’s judgment.




                                                     /s/ Elizabeth Kerr
                                                     Elizabeth Kerr
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 1, 2018




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