                                   NO. 07-02-0209-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                    AUGUST 20, 2003

                          ______________________________


                           NATHAN KYLES, III, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2001-438,266; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Upon a plea of not guilty, Nathan Kyles, III was convicted by a jury of attempted

burglary of a habitation, enhanced, and punishment was assessed at confinement for life.

Presenting three issues, appellant contends the trial court erred in (1) overruling his Rule

404(b) relevancy objection to extraneous offense evidence, thus denying him the right to
be tried for the crime charged and the concomitant right to a fair trial; (2) overruling his

Rule 403 objection that the prejudicial effect of extraneous offense evidence substantially

outweighed its probative value, thus denying appellant the right to be tried for the crime

charged and the concomitant right to a fair trial; and (3) admitting extraneous offense

evidence that affected his substantial rights, denying him the right to be tried for the crime

charged, and the concomitant right to a fair trial.1 Based upon the rationale expressed

herein, we affirm.


       Appellant met the victim, Joey Wheeler, at work, and occasionally would spend the

night at the apartment leased to Wheeler and his roommate T.J. Bowles. 2 On October 29,

2001, Wheeler told appellant he could no longer allow him to stay in the apartment

because occupancy by three people was not permitted under the lease and Wheeler would

be subject to eviction. This announcement made appellant angry. On November 4, 2001,

while Wheeler and Bowles were in the apartment, they heard a loud noise at the patio door

that sounded like someone was trying to enter by breaking through plywood that had been

placed over a broken patio door. The noise also alerted a neighbor who went out his back

door and observed appellant standing on Wheeler’s patio. In response to the neighbor’s

question, appellant said he was having an argument with the occupant who would not allow

him inside. The neighbor identified appellant from a photo spread shown to him by the



       1
           References to Rules 403 and 404(b) are to the Texas Rules of Evidence.
       2
           Wheeler and Bowles were both clients of MHMR.

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police and appellant was charged with attempted burglary of a habitation for the November

4 incident.


       Over appellant’s objections, the trial court allowed the State to present evidence of

two criminal episodes, burglary of a habitation on October 29, and November 2, 2001,

involving appellant and Wheeler and Bowles,. The extraneous evidence included an

account that after being informed he had to leave the apartment on October 29, appellant

returned and punched Wheeler in the head and ribs and, using a large kitchen knife, took

approximately $10 from Bowles without his consent. The evidence also included an

account of the November 2 offense. According to Wheeler, appellant entered through the

broken patio door before the plywood had been installed and took approximately $40 he

was counting. An officer also testified that an inventory of appellant’s personal property

after his arrest included (1) a credit card belonging to Wheeler’s father; (2) a Lone Star

Food Card belonging to Bowles; and (3) bus passes Wheeler alleged were taken by

appellant on October 29. MHMR personnel described the impact of these events on

Wheeler and Bowles and the noticeable injuries and effects on them.


       By his first issue, appellant contends the trial court erred in overruling his Rule

404(b) relevancy objection to extraneous offense evidence. We disagree. W hether

evidence of extraneous offenses is adm issible is within the sound discretion of the trial court

and may not be disturbed on appeal unless an abuse of discretion is shown. Montgom ery

v. State, 810 S.W .2d 372, 391-92 (Tex.Cr.App. 1991) (op. on reh’g); Erdman v. State, 861



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S.W .2d 890, 893 (Tex.Cr.App. 1993). The trial court does not abuse its discretion unless

it has "acted arbitrarily and unreasonably, without reference to any guiding rules and

principles." Breeding v. State, 809 S.W .2d 661, 663 (Tex.App.–Am arillo 1991, pet. ref'd).

As long as the trial court's ruling is within the zone of reasonable disagreement, there is no

abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917

S.W .2d 799, 807 (Tex.Cr.App.1996) (en banc), cert. denied, 519 U.S. 1043, 117 S.Ct. 614,

136 L.Ed.2d 539 (1996).       But, if it cannot be concluded from com mon reasonable

experience that the evidence has a tendency to make the existence of a fact of

consequence more or less probable, then the trial court's decision was not within the zone

of reasonable disagreem ent and it abused its discretion. Rachal, 917 S.W .2d at 807, citing

Montgomery.


       Appellant’s intention on Novem ber 4 and course of continuing criminal design were

important elements of the charged offense. Considered in the context of his conduct on

November 4, evidence of the events on October 29 and Novem ber 2 was relevant apart

from character conformity because the evidence tended to establish the essential element

of appellant’s intent. Montgomery, 810 S.W .2d at 387; Prieto v. State, 879 S.W .2d 295, 297

(Tex.App.--Houston [14th Dist.] 1994, pet. ref’d). Concluding the trial court did not abuse

its discretion in overruling appellant’s Rule 404(b) objection, appellant’s first issue is

overruled.




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       By his second issue, appellant contends the trial court erred in overruling his Rule

403 objection that the prejudicial effect of extraneous offense evidence substantially

outweighed its probative value. We disagree. In evaluating the trial court’s determination

under Rule 403, a reviewing court is to reverse the trial court’s ruling “rarely and only after

a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.Cr.App. 1999);

Montgomery, 810 S.W.2d at 392. Relevant evidence is presumed to be more probative

than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Cr.App. 1997) (en banc),

citing Montgomery. In weighing the probative value and prejudicial effect of extraneous

evidence the trial court considers the following factors:


       1. how compelling the extraneous offense evidence serves to make a fact of
       consequence more or less probable–a factor which is related to the strength
       of the evidence presented by the proponent to show the defendant in fact
       committed the extraneous offense;
       2. the potential the other offense evidence has to impress the jury “in some
       irrational but nevertheless indelible way”;
       3. the time the proponent will need to develop the evidence, during which the
       jury will be distracted from consideration of the indicted offense; and
       4. the force of the proponent’s need for this evidence to prove a fact of
       consequence, i.e., does the proponent have other probative evidence
       available to him to help establish this fact, and is this fact related to an issue
       in dispute.


Montgomery, 810 S.W.2d at 389-90. In the context of the evidence which involved the

same persons, their prior relationship, and the sequence of events, we conclude the

decision of the trial court was within the zone of reasonable disagreement and a “clear

abuse of discretion” has not been shown. Issue two is overruled. Having concluded the


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trial court did not err in admitting extraneous offense evidence pretermits consideration of

issue three by which appellant asserts his substantial rights were affected.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice


Do not publish.




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