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

          No. 02-19-00095-CR
     ___________________________

  CHARLES WESLEY ROOK, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR14016


Before Sudderth, C.J.; Gabriel and Wallach, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      A jury convicted Appellant Charles Wesley Rook of theft under $2,500,

elevated to a state-jail felony due to Rook’s two prior theft convictions, and further

elevated to a second-degree felony due to Rook’s two prior felony convictions. See

Tex. Penal Code Ann. §§ 12.425(b), 31.03(a), (e)(4)(D).        The jury assessed his

punishment at twelve years’ confinement, and the trial court sentenced him

accordingly. In a single point, Rook argues that the trial court erred by admitting

extraneous-offense evidence and impermissible character evidence in violation of

Texas Rule of Evidence 404. See Tex. R. Evid. 404(a), (b). We will affirm.

                                 I. BACKGROUND

      Jason Goforth, a former Walmart asset protection associate, was working at

Walmart on October 21, 2017.         On that date, Goforth noticed that Rook was

sporadically taking merchandise off a shelf and placing it into a shopping cart. This

aroused Goforth’s suspicion, so Goforth closely monitored Rook’s actions.1 Goforth

saw Rook walk over to the electronics center, “rip” a package of Bluetooth earbuds

from a peg hook, walk over to an empty toy aisle, and place the package into his

shorts. Goforth testified that the earbuds had been secured to the peg hook by a

“plastic tie” and that a customer was supposed to ask a Walmart associate to “unlock

[the plastic tie] so the merchandise doesn’t get ripped.”


      1
        Goforth testified that his job generally consisted of walking around Walmart in
plain clothing—to blend in with the crowd—and monitoring people’s activities.

                                            2
      After placing the earbud package into his shorts, Rook walked to the front of

the store, left his shopping cart containing merchandise near the registers, and exited

the store. Goforth followed Rook out of the store and observed him get into the

driver’s seat of a vehicle in an adjacent parking lot. A woman—later identified as

Andrea Daugherty—was in the passenger’s seat of the vehicle. The vehicle then

traveled to the Walmart parking lot, stopped in front of the entrance, and Daugherty

exited the vehicle carrying a Walmart bag. Daugherty entered the store and proceeded

to the service desk. At the service desk, she returned a package of Bluetooth earbuds

without a receipt and was given a Walmart gift card totaling $108.12—the cost of the

earbuds plus tax.    Goforth testified that the package of earbuds returned by

Daugherty was the same package that he saw Rook take. He further testified that the

package returned by Daugherty “was missing part of the package where it was ripped

off the shelf that matched up perfectly with the peg hook that was hanging on the

hook.”

      Rook was arrested in the Walmart parking lot by Granbury police.             The

arresting officer, Officer Kevin Clapp, testified that he found a marijuana pipe in

Rook’s front pocket that smelled of marijuana. A photograph of the pipe was shown

to the jury. The jury also saw Rook’s booking photograph, which reflected that Rook

had two lightning bolt tattoos around his right eye. Officer Clapp testified that the

tattoos were associated with the Aryan Brotherhood or Aryan Circle.          The jury

convicted Rook of theft under $2,500, and this appeal followed.

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                  II. ROOK’S EVIDENTIARY COMPLAINTS

      In his sole point, Rook argues that the trial court erred by admitting evidence

regarding the marijuana pipe found in his pocket and regarding the association

between his lightning bolt tattoos and the Aryan Brotherhood and Aryan Circle.

Rook contends that the admission of the evidence regarding the marijuana pipe

violated Rule 404(b)’s general prohibition of the use of extraneous-offense evidence

and that the admission of the evidence regarding the association between his lightning

bolt tattoos and the Aryan Brotherhood and Aryan Circle violated Rule 404(a)’s

general prohibition of the use of character evidence. See Tex. R. Evid. 404(a), (b).

                     A. EVIDENCE OF ROOK’S MARIJUANA PIPE

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.

App. 2015), cert. denied, 136 S. Ct. 1461 (2016). A party must continue to object each

time the objectionable evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.

Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012,

no pet.).   Error regarding improperly admitted evidence is waived if that same

evidence is brought in later without objection—unless the evidence is brought in later

to meet, rebut, destroy, deny, or explain the improperly admitted evidence. Taylor v.

State, 264 S.W.3d 914, 918–19 (Tex. App.—Fort Worth 2008, no pet.) (mem. op.)

                                           4
(citing Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)). Any error in the

admission of evidence is cured when the same evidence comes in elsewhere without

objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Hill v. State,

303 S.W.3d 863, 876 (Tex. App.—Fort Worth 2009, pet. ref’d).

      Here, Rook’s trial counsel initially objected to Officer Clapp’s testimony

regarding finding the marijuana pipe in Rook’s pocket and objected to the admission

of the photograph of the marijuana pipe. The trial court overruled the objections.

The State continued with its examination of Officer Clapp, and the following

exchange occurred without objection:

             Q.    Looking at State’s Exhibit 6 here, you say this is a
             marijuana pipe?

             A.     Yes, sir.

             Q.     And it had the odor of burnt marijuana on it?

             A.     Yes, sir, it did.

             Q.     Where did you find it on the Defendant?

             A.     In his front pocket. It was his front right pocket.

      Because Officer Clapp testified, without objection, that the photograph

depicted a marijuana pipe found in Rook’s pocket that had the odor of burnt

marijuana on it, any error in the trial court’s prior admission of the photograph and

any error in the admission of Officer Clapp’s prior testimony regarding the marijuana

pipe was cured. See Valle, 109 S.W.3d at 509; Hill, 303 S.W.3d at 876; see also Sampson


                                           5
v. State, No. 02-15-00202-CR, 2016 WL 4474339, at *3 (Tex. App.—Fort Worth

Aug. 5, 2016, pet. ref’d) (mem. op., not designated for publication) (“[B]ecause

unobjected-to evidence proves the same facts as the objected-to photographs, we

conclude that any error in admitting the photographs was harmless.”).

      Accordingly, we overrule the portion of Rook’s sole point concerning the

admission of evidence relating to his marijuana pipe.

                     B. EVIDENCE OF ROOK’S GANG TATTOOS

      The trial court admitted without objection Rook’s booking photograph that

showed Rook’s lightning bolt tattoos. The State asked Officer Clapp if he was

familiar with the meaning of the lightning bolt tattoos, and Officer Clapp stated that

the tattoos were associated with the Aryan Brotherhood or Aryan Circle. Rook’s trial

counsel immediately objected to the testimony as improper character evidence; the

trial court overruled that objection. Officer Clapp then repeated that the tattoos were

associated with the Aryan Brotherhood or Aryan Circle, and Rook’s trial counsel then

objected to the testimony as irrelevant.       The trial court sustained the relevancy

objection, and no other evidence regarding Rook’s tattoos or gang association was

presented.

      Assuming, without deciding, that Rook’s issue was preserved for our review

and there was error, we may not reverse the trial court’s judgment unless the error

affected Rook’s substantial rights. See Tex. R. App. P. 44.2(b).        The erroneous

admission of evidence is non-constitutional error. Gonzalez v. State, 544 S.W.3d 363,

                                           6
373 (Tex. Crim. App. 2018); Kennedy v. State, 193 S.W.3d 645, 660 (Tex. App.—Fort

Worth 2006, pet. ref’d). Non-constitutional error requires reversal only if it affects an

appellant’s substantial rights. Gonzalez, 544 S.W.3d at 373 (citing Tex. R. App. P.

44.2(b)); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (citing same).

Substantial rights are not affected if the reviewing court has fair assurances that the

erroneous exclusion of evidence had no influence or only a slight influence on the

jury. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Motilla, 78 S.W.3d at

355. “Put another way, to be reversible, the jury must have been ‘substantially

swayed’ by the improperly-admitted evidence.” Gillon v. State, No. 02-16-00148-CR,

2017 WL 1738039, at *3 (Tex. App.—Fort Worth May 4, 2017, pet. ref’d) (mem. op.,

not designated for publication) (quoting Hinds v. State, 970 S.W.2d 33, 35 (Tex.

App.—Dallas 1998, no pet.)). In making this determination, we review the entire

record, 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.

Motilla, 78 S.W.3d at 355. We may also consider the jury instructions, the State’s

theories and defensive theories, whether the State emphasized the error, closing

arguments, and voir dire. Id. at 355–56.

      Based on our review of the record, there is overwhelming evidence supporting

the jury’s verdict. See Motilla, 78 S.W.3d at 357; Gillon, 2017 WL 1738039, at *4.

Goforth testified that he closely monitored Rook’s actions and that Rook “ripped”

the package of earbuds off the peg hook, walk over to an empty aisle, and place the

                                           7
package into his shorts. He then saw Rook walk to the front of the store, leave his

shopping cart that had been filled with other merchandise, and exit the store.

Goforth testified that he then saw Rook walk to an adjacent parking lot, get into a

vehicle with Daugherty, and drive the vehicle to Walmart’s parking lot. He saw

Daugherty exit the vehicle with a Walmart bag, approach the service desk, and return

a package of Bluetooth earbuds without a receipt for a Walmart gift card totaling

$108.12. He testified that the package of earbuds returned by Daugherty was the

same package that he saw Rook put down his shorts and that the package returned by

Daugherty was missing part of the package that “matched up perfectly” with the way

Rook “ripped” the earbuds off the peg hook.

      Walmart surveillance video was also shown to the jury. As the video was

shown to the jury, Goforth explained what was occurring in the video: Rook’s walking

into the store from the direction of the adjacent parking lot, Rook’s selecting

merchandise and placing it into the shopping cart, Rook’s taking the Bluetooth

earbuds off the peg hook, Rook’s exiting the store without a shopping cart, Rook’s

walking away from Walmart towards the adjacent parking lot, Rook’s vehicle’s

entering the Walmart parking lot and Daugherty’s exiting the vehicle, Daugherty’s

entering the store and walking towards the service desk, and Daugherty’s returning

the earbuds at the service desk. A photograph of the earbud package returned by

Daugherty and the receipt given to Daugherty for the return were also admitted into

evidence.

                                         8
      In contrast to the overwhelming evidence supporting the jury’s verdict, the

evidence relating to Rook’s tattoos and their association with the Aryan Brotherhood

and Aryan Circle was slight and not emphasized by the State. Officer Clapp stated

that the tattoos were associated with the Aryan Brotherhood or Aryan Circle, and

following an objection that was overruled, he repeated that the tattoos were associated

with the Aryan Brotherhood or Aryan Circle. That is the only evidence offered or

admitted during the guilt-innocence stage of Rook’s trial relating to his tattoos and

their association with the Aryan Brotherhood and Aryan Circle. The only other time

that Rook’s gang tattoos were mentioned during the guilt-innocence stage was during

the State’s rebuttal argument, when the State provided an explanation for why

Goforth did not try to stop Rook from leaving the store with the earbuds. The

prosecutor stated, “You know, with all of the tattoos on his face, the Aryan

brotherhood, Aryan circle tattoos on his face, I mean, would you want to confront a

person like that? Of course you wouldn’t.”2 Rook’s trial counsel did not object to

this argument and it is not the subject of a complaint on appeal. The gang tattoos

were not part of the State’s or Rook’s theory of the case, and they were not

mentioned during voir dire.

      On this record, we cannot say that the jury must have been “substantially

swayed” by the testimony relating to the association of Rook’s tattoos and the Aryan

      Rook’s trial counsel had argued during closing that Goforth “could have easily
      2

stopped [Rook] coming out of that store.”


                                          9
Brotherhood and Aryan Circle. Assuming the jury considered this association at all,

we are persuaded that its admission had, at most, only a slight influence—not enough

to constitute reversible error. See Motilla, 78 S.W.3d at 255. We thus hold that Rook’s

substantial rights were not violated and hold that any error was harmless. See Tex. R.

App. P. 44.2(b); Solomon, 49 S.W.3d at 365.

      We overrule the portion of Rook’s sole point concerning the admission of

evidence relating to his gang tattoos.

                                 III. CONCLUSION

      Having overruled both portions of Rook’s sole point, we affirm the trial court’s

judgment.

                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

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

Delivered: March 5, 2020




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