Opinion issued March 26, 2015




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00173-CR
                           ———————————
                        OLIVER HUGHES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1348998



                         MEMORANDUM OPINION

      A jury convicted appellant, Oliver Hughes, of the first-degree felony offense

of aggravated robbery and, after appellant pleaded true to the allegations in an
enhancement paragraph, assessed punishment at seventeen years’ confinement. 1 In

two issues, appellant contends that the trial court erroneously (1) admitted

evidence of two extraneous offenses, and (2) failed to give a timely oral limiting

instruction to the jury following the admission of the extraneous offense evidence.

      We affirm.

                                   Background

      On May 26, 2012, Valery Gulley, the complainant, drove to an apartment

complex on Crofton Street in northeast Houston to visit a friend he knew as

“Slim.” Slim is appellant’s brother. When Gulley pulled up to the apartments, he

saw appellant outside “cursing and screaming and yelling” while on his cell phone.

Appellant then walked up to Gulley’s car and started yelling and screaming at him.

Appellant pulled out a gun, demanded money, and hit Gulley in the face with the

gun. Gulley handed appellant $25 and drove away.

      Gulley drove around the area for about seven or eight minutes searching for

law enforcement before he saw police officers pull into the same apartment

complex he had just left. The police officers stopped in front of appellant’s

apartment. Gulley then reported the robbery to one of the officers and showed the

officer his split lip from where appellant had hit him in the face with the gun.

Gulley gave the officers a description of his assailant and then saw appellant


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).

                                         2
already sitting in the back of a patrol car. He identified appellant as the person

who had assaulted and robbed him.

       Houston Police Department (“HPD”) Officer J. Black testified that he

received a dispatch regarding a disturbance on Crofton Street involving appellant

and a weapon around 3:40 a.m. on May 26, 2012. Gulley was not the complainant

for this incident, and Officer Black did not provide details of this incident. At the

apartment complex, Officer Black spoke with the 9-1-1 caller, a man named

Edinson Green, and afterwards searched the area for appellant but could not find

him. Officer Black then left the complex, but returned around 5:00 a.m. after a

second call from Green. HPD Officer J. Huckabee saw appellant, who matched

the physical description given by Green, reaching into the wheel well of a truck

parked behind the apartment. Appellant did not have a weapon on his person, but

Officer Black looked at the wheel well of the truck and saw a gun sitting on top of

the tire.

       After Officers Black and Huckabee placed appellant in custody, Gulley

approached the officers and reported appellant’s assault and robbery of him.

Gulley could not give the officers the name of his assailant, but he could give a

physical description, which matched appellant. Gulley then saw appellant sitting

in the back of Officer Black’s patrol car, and he identified appellant as his




                                         3
assailant. At trial, Gulley identified the gun that Officer Black recovered from the

wheel well as the gun that appellant used to rob him.

      Appellant represented himself at trial. At a pretrial conference, the State

agreed that it would refer to the reason why the officers were at Crofton Street

before encountering appellant and Gulley as an “ongoing investigation,” and it

would not go into the details of any extraneous offenses. On re-cross examination,

appellant asked Officer Black when he had received the initial call to go to Crofton

Street and whether Gulley or someone else had called 9-1-1. Appellant asked the

trial court if a copy of the initial 9-1-1 call could be played for the jury. The State

argued that appellant had “opened the door to the whole thing,” referring to the

initial aggravated assault offense that brought the officers out to the apartment

complex. The trial court responded, “Not yet. I said not yet.” Appellant then

questioned Officer Black about whether he had ever determined that appellant had

a motive for robbing Gulley.

      After appellant finished examining Officer Black, the trial court held a

hearing outside the presence of the jury. The trial court asked appellant, “Do you

recall me saying if you opened the door, then there is a possibility that the evidence

of the prior offense on that night to which you’ve been arrested and charged for but

which is not a subject of this trial, those details could come in?” The trial court

heard a statement of probable cause on the initial offense and then stated, “The



                                          4
situation, Mr. Hughes, is you repeatedly asked the officer about, did he have any

motive whatsoever, things of that nature. You opened the door, so now it comes

in.”

       The State then recalled Officer Black and asked him to tell the jury about the

initial 9-1-1 call that brought him to Crofton Street. At the apartment complex,

Officer Black met with Edinson Green, and Black began investigating “[a]n

aggravated assault with a deadly weapon.” Appellant and the trial court had the

following exchange before the jury:

       [Appellant]:       [W]ould you please instruct the jury that I’m only
                          in here right now—in here for one charge and one
                          charge only, and that’s aggravated robbery of Mr.
                          Valery Gulley?
       The Court:         For purposes of the record, that’s what he’s
                          charged with.
       [Appellant]:       One charge and one charge only.
       The Court:         That’s what he’s charged with in this trial.

Officer Huckabee also testified concerning the first 9-1-1 call, the officers’ initial

meeting with Green, their search of the apartment complex for appellant, and their

eventual encounter with appellant.

       During appellant’s cross-examination of Gulley, the following exchange

occurred:

       [Appellant]:       What was the motive for me robbing you in front
                          of my door for $25 where I pay rent at?



                                          5
       [Gulley]:             You want to know why I feel you would do that?
       [Appellant]:          Yeah.
       [Gulley]:             Because you were on drugs, and it was plain to
                             see.
       [Appellant]:          Okay. You say I was on drugs?
       [Gulley]:             That’s the only way I can see you doing that.
       The Court:            Let’s move off of that subject.
       [Appellant]:          Do you have any proof to substantiate I was on
                             drugs?
       [Gulley]:             You asked me what I thought.

       The next day, the State informed the trial court of its intention to recall

Officer Black to testify not only regarding the original 9-1-1 call relating to the

aggravated assault offense but also regarding the fact that, after the officers placed

appellant in custody, they conducted a protective sweep of his apartment and

discovered cocaine in plain view inside the apartment. Appellant objected on

relevance grounds. The trial court stated, “He opened the door. That’s the reason

why you get this other testimony in.”

       Before the State recalled Officer Black, the trial court gave the following

instruction to the jury: 2

       Ladies and gentlemen of the jury, you are instructed that the following
       evidence concerning an alleged offense or offenses other than the
       offense which is alleged in the indictment against the defendant may
       only be considered by you if you believe beyond a reasonable doubt
       that the defendant committed these offense or offenses, if any. And

2
       The jury charge contained a substantively identical instruction.

                                             6
      even then, you may only consider said evidence in determining the
      motive, opportunity, plan, knowledge, identity or absence of mistake
      or accident of the defendant, if any, in connection with the offense
      alleged against the defendant in the indictment in the trial. You are
      not to consider this evidence for any other purpose whatsoever.

Officer Black then testified that he was originally called to Crofton Street to

investigate a robbery, and after speaking with Green, the 9-1-1 caller, he began

investigating an aggravated assault involving a deadly weapon allegedly

committed by appellant. Officer Black testified that after the officers came back to

the apartment complex a second time and placed appellant in custody, but before

officers spoke to Gulley, the officers noticed that the front door to appellant’s

apartment was open, and they searched the apartment “to ensure there were no

further suspects or possibilities of anyone else being armed.” During this search,

officers found cocaine in plain view in appellant’s apartment.

      The jury ultimately found appellant guilty of the offense of aggravated

robbery and, after appellant pleaded true to the allegations in an enhancement

paragraph, assessed punishment at seventeen years’ confinement. This appeal

followed.

                          Extraneous Offense Evidence

      In his first issue, appellant contends that the trial court erred in admitting

evidence that he had engaged in an extraneous aggravated assault offense and that

he possessed cocaine in his apartment at the time of his arrest.



                                          7
      A. Standard of Review

      We review a trial court’s decision to admit evidence for an abuse of

discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing

Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). As long as the trial

court’s evidentiary ruling is “within the zone of reasonable disagreement,” we may

not reverse it. Rezaie v. State, 259 S.W.3d 811, 814 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (citing Green v. State, 934 S.W.2d 92, 102 (Tex. Crim.

App. 1996)). We will not disturb a trial court’s evidentiary ruling if it is correct on

any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336,

344 (Tex. Crim. App. 2009).

      B. Admission of Extraneous Offense Evidence

      Texas Rule of Evidence 404(b) provides that “[e]vidence 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). However, extraneous

offense or bad acts evidence may be admissible for other purposes, including

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

absence of mistake or accident . . . .”    Id.   A trial court’s Rule 404(b) ruling

admitting extraneous offense evidence is generally within the “zone of reasonable

disagreement,” and thus does not constitute an abuse of discretion, if there is




                                          8
evidence supporting that an extraneous act is relevant to a material, non-propensity

issue. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

      “Extraneous offense evidence is admissible if it has some logical relevance

aside from character conformity.” Bass v. State, 270 S.W.3d 557, 562 (Tex. Crim.

App. 2008). A defendant can “open the door” to the admission of otherwise

inadmissible extraneous-offense evidence to rebut a defensive theory. See id. at

563 (holding that defense opening statement can open door to admission of

extraneous-offense evidence to rebut defensive theory presented in opening

statement); Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) (holding

that it is within trial court’s discretion to admit extraneous-offense evidence to

rebut defensive theory raised in opening statement). “[A] party who ‘opens the

door’ to otherwise inadmissible evidence risks the adverse effect of having that

evidence admitted.” Bowley v. State, 310 S.W.3d 431, 435 (Tex. Crim. App.

2010). Moreover, “the prosecution may always offer evidence to show motive for

the commission of an offense because it is relevant as a circumstance to prove the

commission of the offense.” Crane v. State, 786 S.W.2d 338, 350 (Tex. Crim.

App. 1990) (quoting Porter v. State, 623 S.W.2d 374, 385–86 (Tex. Crim. App.

1981)); see also Ladd v. State, 3 S.W.3d 547, 567–68 (Tex. Crim. App. 1999)

(holding that trial court did not abuse its discretion in admitting, in murder trial,

evidence that defendant smoked cocaine on night of murder because court could



                                         9
have reasonably concluded “that the extraneous offense evidence was admissible

to help prove appellant’s motive for the killing, to wit: to obtain the victim’s

property so that he could exchange it for cocaine”).

             1. Extraneous Aggravated Assault

      With respect to the evidence that appellant assaulted Edinson Green at the

Crofton Street apartment complex before robbing Gulley, the State argues that

appellant opened the door to admission of evidence concerning this offense by

questioning Officer Black about who made the initial 9-1-1 call, indicating that he

wished to play the 9-1-1 call to the jury, and then failing to object when the State

later offered a recording of the 9-1-1 call into evidence. We agree.

      On cross-examination, appellant asked Officer Black about the initial 9-1-1

call that brought him out to the apartment complex. Appellant asked:

      [Appellant]:        Did the plaintiff, Mr. Gulley—did he call the
                          police or someone else?
      [Officer Black]:    Someone else.
      [Appellant]:        Someone else. Okay. Someone else called 911.
                          Where was the place of the scene where these
                          events took place?   What was the physical
                          address?
      [Officer Black]:    9636 Crofton.
      [Appellant]:        And whose address is that?
      The Court:          If you know.
      [Appellant]:        Whose address is 9636 Crofton?
      [Officer Black]:    The person who called, as well as yourself.

                                          10
      [Appellant]:        Okay. But we don’t know the person who called?
                          We don’t know?
      [Appellant]:        Excuse me. Your Honor, could you ask the
                          State—do we have a copy of the 911 call?
      [The State]:        We’ll play the 911.
      The Court:          No, not yet.

By questioning Officer Black about the initial 9-1-1 caller, suggesting that Officer

Black did not know the identity of the 9-1-1 caller, and seeking to play the 9-1-1

call for the jury, appellant opened the door to testimony concerning the aggravated

assault offense that was the subject of the 9-1-1 call. See Bowley, 310 S.W.3d at

435 (stating that “a party who ‘opens the door’ to otherwise inadmissible evidence

risks the adverse effect of having that evidence admitted”); Bass, 270 S.W.3d at

563 (holding that defendant may open door to admission of extraneous-offense

evidence to rebut defensive theory).

      We hold that the trial court could have reasonably concluded that, through

his questioning of Officer Black, appellant opened the door to testimony

concerning the extraneous aggravated assault offense and that the trial court,

therefore, did not err in admitting this evidence.

             2. Extraneous Possession of Cocaine

      With respect to the evidence of appellant’s possession of cocaine in his

apartment at the time of his arrest, the State argues that appellant opened the door



                                          11
to this evidence by repeatedly asking Gulley about his impressions of appellant’s

motive for the robbery and that appellant’s possession of cocaine in his apartment

tended to prove that he committed the offense because he was under the influence

of drugs. We agree with the State that appellant opened the door to admission of

this evidence.

      During his cross-examination of Gulley, appellant repeatedly asked Gulley

why he thought appellant, who had been standing in front of his own apartment at

the time he encountered Gulley, would rob Gulley at gunpoint for $25. Gulley

responded that he thought appellant was high during the incident. Appellant then

asked Gulley if he had any proof to substantiate his assertion that appellant was

under the influence of drugs. The trial court then ruled that appellant had opened

the door to testimony that police officers, during the search of appellant’s

apartment following his arrest, found cocaine in plain view in the apartment. The

State recalled Officer Black to testify to this search and to the recovery of cocaine

from appellant’s apartment. 3

      We agree with the State that, through his questioning of Gulley, appellant

opened the door to introduction of evidence that he possessed cocaine in his

apartment at the time of the offense. Throughout his questioning of Gulley,

Officer Black, and Officer Huckabee, appellant repeatedly sought to elicit

3
      Appellant raises no argument on appeal that this search was impermissible
      pursuant to the Fourth Amendment.

                                         12
testimony that the State had no motive for why appellant would rob Gulley, thus

casting doubt on Gulley’s testimony. Eliciting testimony from Gulley that Gulley

believed appellant was high during the incident, and, specifically, asking Gulley

whether he had any proof to substantiate that belief, opened the door to allow the

State to produce evidence that appellant was in possession of and using cocaine at

the time of the offense. See Bowley, 310 S.W.3d at 435 (stating that “a party who

‘opens the door’ to otherwise inadmissible evidence risks the adverse effect of

having that evidence admitted”); Bass, 270 S.W.3d at 563 (holding that defendant

may open door to admission of extraneous-offense evidence to rebut defensive

theory); Ladd, 3 S.W.3d at 567–68 (holding that trial court did not abuse its

discretion in admitting evidence that defendant had used cocaine on night of

murder because such evidence helped prove appellant’s motive for murder). We

conclude that the trial court reasonably could have concluded that appellant opened

the door to admission of evidence that he possessed cocaine at the time of the

robbery. We hold that the trial court did not err in admitting this evidence.

      We overrule appellant’s first issue. 4


4
      Appellant cites the Court of Criminal Appeals’ opinion in Couret v. State, 792
      S.W.2d 106 (Tex. Crim. App. 1990) (per curiam), in which the trial court
      erroneously admitted evidence that Couret, who was on trial for burglary of a
      habitation, possessed a hypodermic needle in his pocket at the time of arrest, for
      the proposition that “[w]ithout some sort of link between the discovery of drugs or
      drug paraphernalia and the underlying criminal offense, evidence of the
      defendant’s possession of a controlled substance is inadmissible under Rule

                                          13
                                Limiting Instruction

      In his second issue, appellant contends that the trial court erroneously failed

to give a timely instruction limiting the jury’s consideration of the extraneous

offense evidence.

      Texas Rule of Evidence 105(a) provides:

      When evidence which is admissible as to one party or for one purpose
      but not admissible as to another party or for another purpose is
      admitted, the court, upon request, shall restrict the evidence to its
      proper scope and instruct the jury accordingly; but, in the absence of
      such request the court’s action in admitting such evidence without
      limitation shall not be a ground for complaint on appeal.

TEX. R. EVID. 105(a) (emphasis added). “When requested, the court must also

include an instruction not to consider evidence admitted for a limited purpose

unless the jury finds beyond a reasonable doubt that the defendant committed the

extraneous offenses.” McNeil v. State, No. 01-13-00234-CR, 2014 WL 6601514,

at *4 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. struck) (emphasis

added); see also Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001)

(declining to overrule line of cases requiring “a request for a limiting instruction at

the admission of the evidence”).        If a defendant fails to request a limiting



      404(b).” Here, however, Gulley testified that he believed appellant committed the
      charged aggravated robbery because he was high. Thus, in this case, there is a
      connection between appellant’s possession of cocaine and the charged offense.
      We therefore conclude that Couret is factually distinguishable and does not
      compel the exclusion of the evidence that appellant possessed cocaine at the time
      of his arrest.

                                          14
instruction at the first opportunity, the evidence is admitted for “all purposes.”

Hammock, 46 S.W.3d at 895. To be sufficiently specific such that the defendant

preserves error for review, the defendant’s request for a limiting instruction must

inform the trial court “as to what limitation should be placed upon the evidence.”

Puente v. State, 888 S.W.2d 521, 528 (Tex. App.—San Antonio 1994, no pet.); see

also Wells v. State, 241 S.W.3d 172, 179 (Tex. App.—Eastland 2007, pet. ref’d)

(holding same).

      Here, appellant did not make a sufficiently specific request for a limiting

instruction. He did not inform the trial court “as to what limitations should be

placed upon the evidence.” Wells, 241 S.W.3d at 179; Puente, 888 S.W.2d at 528.

Instead, he merely requested that the trial court instruct the jury that he is “in here

for one charge and one charge only, and that’s aggravated robbery of Mr. Valery

Gulley.” That is precisely the instruction that the trial court gave at that time when

it stated in response, “That’s what he’s charged with in this trial.” We hold that the

trial court did not err when it failed to give a limiting instruction at the time the

State introduced evidence of the extraneous aggravated assault charge.

      With respect to the possession of cocaine evidence, before the State recalled

Officer Black and he testified concerning this evidence, the trial court gave the

following instruction:

      Ladies and gentlemen of the jury, you are instructed that the following
      evidence concerning an alleged offense or offenses other than the

                                          15
      offense which is alleged in the indictment against the defendant may
      only be considered by you if you believe beyond a reasonable doubt
      that the defendant committed these offense or offenses, if any. And
      even then, you may only consider said evidence in determining the
      motive, opportunity, plan, knowledge, identity or absence of mistake
      or accident of the defendant, if any, in connection with the offense
      alleged against the defendant in the indictment in this trial. You are
      not to consider this evidence for any other purpose whatsoever.

The trial court included a substantively identical instruction in the jury charge.

The jury was thus instructed before it heard evidence that appellant possessed

cocaine in his apartment at the time of the offense that it was not to consider that

evidence for any purpose other than for “determining the motive, opportunity,

plan, knowledge, identity or absence of mistake or accident of the defendant.”

Therefore, to the extent appellant complains that the trial court did not properly

instruct the jury that it could consider the evidence of possession only for certain

purposes, we hold that the trial court did not err.

      We overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.



                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).



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