                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00268-CR


BRIAN HART                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1365673R

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                       MEMORANDUM OPINION1

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                                  I. Introduction

      A jury convicted appellant Brian Hart of arson and assessed his

punishment at three years’ confinement.2 In a single issue, Hart complains that


      1
      See Tex. R. App. P. 47.4.
      2
       Arson is a state jail felony with a punishment range of 180 days’ to two
years’ confinement, but its punishment range can be enhanced by prior felony
convictions to the two-to-twenty-year punishment range of a second-degree
the trial court’s two admissions of evidence of his sex offender status during the

guilt-innocence phase of trial were extremely prejudicial and likely caused him to

be convicted of arson “solely because he is a sex offender.” We conclude that

while the trial court erred by admitting the evidence in one instance, as set out

below, that the instance was harmless in light of the subsequent proper

admission of similar evidence.3 See Anderson v. State, 717 S.W.2d 622, 627

(Tex. Crim. App. 1986). Further, even if both had been admitted in error, neither

affected Hart’s substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State,

983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526

U.S. 1070 (1999). Therefore, we affirm.

                                  II. Background

      Much of the evidence in this case was undisputed. For example, no one

disputed that Hart set a fire in his hotel room or that he suffered from seizures.

felony. See Tex. Penal Code Ann. § 12.33 (West 2011) (second-degree felony
punishment range), § 12.425 (West Supp. 2014) (penalties for repeat and
habitual felony offenders on trial for state jail felony). Hart’s indictment contained
an enhancement paragraph regarding his prior felony convictions of failure to
comply with sexual offender registration requirements on August 10, 2004, and
indecency with a child by fondling on June 17, 1996. Hart pleaded true to the
enhancement paragraph, and the jury found that paragraph true, elevating Hart’s
punishment range to that of a second-degree felony.
      3
        Three different judges presided over this matter during the three-day trial.
A Tarrant County magistrate judge conducted voir dire on the first day. The
sitting district judge presided during the second day of trial, and a retired judge
sitting by assignment presided during the final day of trial, which included a
portion of the guilt-innocence phase.




                                          2
The issue before the jury was whether the defense of necessity applied based on

Hart’s post-seizure hallucination that people were after him and that he needed

to draw the attention of rescuers by setting the fire.

                                   III. Discussion

      Hart complains that the admission of Arlington Police Officer David Todd’s

recitation of Hart’s statement about being a sex offender and the evidence of

Hart’s conviction for failure to register as a sex offender during the guilt-

innocence phase of the trial were substantially more prejudicial than probative

and ultimately harmful in that the jury convicted him of arson.

A. Impeachment

      Hart elected to testify, and the State offered evidence of Hart’s criminal

history, including a prior conviction for failure to register as a sex offender, during

Hart’s testimony. Prior to tendering the evidence, in a conference outside the

jury’s presence, the State argued that Hart’s failure-to-register conviction was

admissible impeachment evidence that went not only to Hart’s credibility but also

to his motive, intent, preparation, plan, knowledge, identity, absence of mistake,

or accident and to show his clarity of mind at that time. Hart argued that the

failure-to-register conviction was not a crime of moral turpitude, that it was

irrelevant, and that its highly prejudicial nature outweighed any probative value

under rule 403. The trial court overruled Hart’s objections, and after the evidence




                                          3
was introduced, Hart requested a running objection, which the trial court

granted.4

       Rule of evidence 609(a) generally provides that evidence of a criminal

conviction is admissible if the court determines that its probative value outweighs

its prejudicial effect. Tex. R. Evid. 609(a). The State argued at trial, as it does

here, that Hart’s failure-to-register conviction was probative as to Hart’s

credibility.

       In reviewing the trial court’s conduct in balancing the probative value of the

evidence against its prejudicial effect, we must accord the trial court “wide

discretion.” Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). A

ruling permitting use of a prior conviction to impeach will be reversed on appeal

only upon a showing of a clear abuse of discretion. Id. Only if the trial court’s

decision falls outside the “zone of reasonable disagreement” has it abused its

discretion.    Id.; Miller v. State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth

2006, pet. ref’d).

       A nonexclusive list of factors to consider in weighing the probative value of

a conviction against its prejudicial effect includes (1) the past crime’s

impeachment value, (2) the past crime’s temporal proximity relative to the

charged offense and the witness’s subsequent history, (3) the similarity between

the past crime and the offense being prosecuted, (4) the importance of the

       4
     The trial court also admitted Hart’s conviction for possession of
methamphetamine.


                                          4
defendant’s testimony, and (5) the importance of the credibility issue. Theus,

845 S.W.2d at 880. The impeachment value of crimes that involve deception is

higher than those involving violence, while those involving violence have a higher

prejudicial potential. Id. at 881. Temporal proximity favors admission if the past

crime is recent and the witness has demonstrated a propensity for running afoul

of the law, while if the past crime and charged crime are similar, this weighs

against admission because similarity suggests the possibility that the jury could

convict on the perception of a pattern of past conduct rather than on the facts of

the charged offense. Id. When the case involves the testimony of only the

defendant and the State’s witnesses, the importance of the defendant’s credibility

and testimony escalates and weighs in favor of admission. Id.

      Because Hart’s failure to register as a sex offender worked to conceal the

address at which he resided or intended to reside, the offense was a crime

involving deception. See Tristan v. State, 393 S.W.3d 806, 813–14 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (holding that failure to register as a sex

offender is “a crime of deception” and “a significant piece of evidence” bearing on

a defendant’s character for truthfulness under rule 609); see also Robertson v.

State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth 1985, no pet.) (holding that a

crime involving dishonesty is relevant to the credibility of a witness). This factor

weighs in favor of admission, as does the fact that the failure-to-register offense

and the charged arson offense were not similar. See Theus, 845 S.W.2d at 881.




                                         5
However, the failure-to-register offense was several years old; this factor weighs

against admission. See id.

      The last two factors under Theus are related in that they both depend on

the nature of a defendant’s defense and the means available to him of proving

that defense. See id. Hart’s necessity defense hinged upon whether the jury

believed his contention that he set the fire in an attempt to summon aid while

suffering from a delusion that people were trying to attack him. Hart testified to

this, as did Dr. Roger Blair, an expert who opined that he had no doubt that Hart

had been psychotic and suffering from delusions that were very real to him at the

time he set the fire, none of which would seem out of the ordinary, given Hart’s

mental condition at the time. When the case involves the testimony of only the

defendant and the State’s witnesses, the importance of the defendant’s credibility

and testimony escalates, as will the need to allow the State the opportunity to

impeach his credibility. See id. Although Hart also had an expert witness testify

in support of his defense, because Hart had to confess to the offense in order to

use the necessity defense,5 his credibility and character for veracity were directly

in issue. See Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).

Therefore, these factors weigh in favor of admission. See Theus, 845 S.W.3d at

      5
        The confession-and-avoidance doctrine applies to the necessity defense,
requiring a defendant to admit the conduct—both the act and the culpable mental
state—of the charged offense to be entitled to a necessity instruction. Juarez v.
State, 308 S.W.3d 398, 399, 405 (Tex. Crim. App. 2010); see Tex. Penal Code
Ann. § 1.07(a)(10) (West Supp. 2014) (defining conduct to mean an act or
omission and its accompanying mental state).


                                         6
881. We conclude that because the majority of the factors under Theus favor

admission, the trial court did not abuse its discretion by admitting Hart’s failure-

to-register conviction.6 See id.; see also Tristan, 393 S.W.3d at 814; Theragood

v. State, No. 08-10-00013-CR, 2011 WL 3848840, at *4–7 (Tex. App.—El Paso

Aug. 31, 2011, no pet.) (not designated for publication).

B. Relevance

      Hart also complains about the admission of Officer Todd’s testimony

relating Hart’s statement at the scene about being a sex offender. Officer Todd

testified that Hart told him that

      he had been in the room with two females that he didn’t know the
      names of, and he advised that the females had somehow found out
      that he was a sex offender, and he didn’t know how they found out,
      but he said that they left and that they returned with two males and
      that the males began pounding and kicking the door, and that after—
      or whenever they started pounding and kicking the door, he went to
      the bathroom, shut the door, and lit toilet paper on fire to get the
      attention of [the police] and the fire department. [Emphasis added.]

      6
        Further, the trial court included an instruction in the jury charge with
regard to the use of Hart’s prior convictions that either eliminated or reduced the
potential that the jury would use this evidence in an impermissible manner
because we generally presume that juries follow the trial court’s instructions in
the manner presented. Kirk v. State, 199 S.W.3d 467, 479 (Tex. App.—Fort
Worth 2006, pet. ref’d); see Young v. State, 283 S.W.3d 854, 882 (Tex. Crim.
App. 2009) (Cochran, J., concurring) (“We must, however, ‘presume[] that jurors,
conscious of the gravity of their tasks, attend closely [to] the particular language
of the trial court’s instructions in criminal cases and strive to understand, make
sense of, and follow the instructions given them.’”) (quoting Francis v. Franklin,
471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976 n.9 (1985)), cert. denied, 558 U.S.
1093 (2009); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).
Courts will abandon this presumption only if there is evidence showing that the
jury did not follow the instructions. Williams, 937 S.W.2d at 490. There is no
such showing here.


                                         7
That is, Officer Todd testified that Hart’s statement attributed the motivation of his

would-be attackers to their belief that he was a sex offender.7

      While Hart’s objection to the evidence was summarily overruled without

argument, earlier that day the trial court had permitted extended argument

regarding the evidence in question when it considered but denied Hart’s motion

in limine.   During the limine argument, Hart argued that the evidence was

irrelevant, or alternatively, that any probative value was outweighed by its highly

prejudicial effect. The State argued that the evidence was relevant to prove

Hart’s reason for setting the fire, his motive, his state of mind, and to rebut a

claim of medical necessity. During the limine hearing, the trial court indicated

that it would “allow it” because it went “directly to his state of mind” and to motive,

which, the trial court stated, was “squarely an issue” in the case.8

      It is undisputed that Hart’s would-be attackers were not real, that they were

a delusion. To the extent that Hart believed that these imaginary people were

trying to kill him, evidence of this belief was probative of Hart’s mental state and

Hart’s motive in setting fire to the hotel room. However, the evidence that the


      7
       The testimony is ambiguous on this point. It is not clear from Officer
Todd’s testimony whether the imaginary men’s belief that Hart was a sex
offender was, in fact, correct or incorrect.
      8
       While this court is aware that motions in limine do not preserve error, see
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 555
U.S. 1105 (2009), the hearing on the motion in limine allowed both sides to flesh
out their arguments for and against the admission of the evidence.


                                          8
trial court admitted went one step too far. The mental state and motivations of

Hart’s hallucinations—whether greed, hatred, jealousy, animosity toward sex

offenders, or a quest to save the planet—are wholly irrelevant9 to any fact of

consequence in this case. The fact of consequence here was whether Hart

thought he was being attacked, not the motivation he attributed to his imaginary

attackers.

C. Harmless Error

      Although the court erred by admitting Officer Todd’s testimony, this error

ultimately proved harmless. It is well-established that the improper admission of

evidence becomes harmless error if the same facts are proved by other properly

admitted evidence. Land v. State, 291 S.W.3d 23, 28 (Tex. App.—Texarkana

2009, pet. ref’d); see also Anderson, 717 S.W.2d at 627. As discussed above,

Hart’s conviction for failure to register as a sex offender was subsequently

admitted into evidence, and we have held that the trial court committed no error

by doing so; therefore, admitting Officer Todd’s testimony on this point was

subsequently rendered harmless.

      Further, if, as here, the trial court’s ruling merely offends the rules of

evidence, such erroneous admission of evidence is nonconstitutional error


      9
       Relevant evidence is that which has any tendency to make the existence
of any fact of consequence to the determination of the action more probable or
less probable. See Tex. R. Evid. 401; Hawkins v. State, 871 S.W.2d 539, 541
(Tex. App.—Fort Worth 1994, no pet.) (citing Montgomery v. State, 810 S.W.2d
372, 387 (Tex. Crim. App. 1990) (op. on reh’g)).


                                       9
governed by rule 44.2(b). See Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); see also Walters v. State, 247 S.W.3d 204, 222 (Tex. Crim.

App. 2007). Under rule 44.2(b), any error, defect, irregularity, or variance that

does not affect the appellant’s substantial rights must be disregarded. Tex. R.

App. P. 44.2(b). A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,

328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      The evidence showed that Hart, who had been homeless prior to moving

into the Caravan Motel, set a fire in his room in the early morning hours of August

24, 2013. The Caravan Motel is an older wood-framed, two-story hotel which


                                         10
had been grandfathered-in under an older fire code. Fifteen to twenty occupants

were in the structure at the time of the fire.

      While Arlington Fire Department’s deputy fire marshal classified the fire as

small, he testified that it had the potential to be dangerous because it occurred at

approximately 5:00 a.m., a time when the old hotel’s occupants would likely be

asleep, and the condition of the structure would cause the fire to burn quickly.

One of the firefighters described the incident as a “heavy box response,”

meaning that more firefighting units would respond because it was a high

occupancy building with a greater potential for victims.

      Hart admitted that he intentionally set the fire but testified that he did so in

an attempt to set off the smoke alarm and thereby summon help because he

thought people were attempting to do him harm.10 See Tex. Penal Code Ann.

§ 28.02(a-2)(1), (f) (West 2011) (stating that a person commits an offense if he

intentionally starts a fire and recklessly damages or destroys a building belonging

to another). The resulting fire caused damage to the bathroom door and the

subfloor.



      10
          Hart testified that he panicked and knew he needed help, but he had no
ability to summon aid. According to Hart, because he did not have a cell phone
and there was no phone in the hotel room, he thought, “[T]here’s a smoke alarm
in this room. If I make enough smoke, I’m going to get my help. People will
come. I will -- I’ll get my treatment. I’ll be saved.” So he lit some toilet paper on
fire with a cigarette lighter and waited for help to arrive. Two firefighters and two
police officers confirmed that Hart told them at the scene that he had lit toilet
paper on fire so that help would come because he thought people were after him.


                                          11
      Both sides agreed that Hart’s would-be attackers that evening were not

real but were part of a delusion caused by Hart’s failure to take his medication.

Hart testified that while he had been prescribed anti-seizure, anticonvulsant

medication, he had not taken his pills.11 Hart explained that he had just started a

new job and, because obtaining a prescription refill at Mission Arlington’s free

medical clinic would require him to wait in line for a full day, that he had been

trying to make his medication last for as long as possible. Consequently, he was

not taking his medication as often as prescribed.

      The jury received limiting instructions during Officer Todd’s testimony and

in the court’s charge with regard to the evidence in question, and we generally

presume that the jury followed the trial court’s instructions in the manner

presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998);

see also Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (stating that

the presumption that the jury followed the trial court’s instructions is rebuttable

but that the appellant must rebut the presumption by pointing to evidence that the

jury failed to follow the trial court’s instructions).   The State embraced the

limitations on the jurors’ consideration of this evidence as early as voir dire when,

in response to the question, “Can prior convictions be brought up as evidence?”

posed by one of the veniremembers, the State explained,

      11
        Hart was found with an unmarked bottle of white pills. Dr. Blair, the
board-certified neurologist who reviewed Hart’s medical records, confirmed that
the medicine in Hart’s medicine bottle was seizure medication that he had been
prescribed.


                                         12
            Prosecutor: Not normally in the guilt-innocence phase,
      because we want the jury to focus on the actual action, not the –
      what somebody may have done in their prior –

            Venireperson: Yeah, but wouldn’t that be important to know?

              Prosecutor: It would be important, but your job, if you are a
      juror, is to decide the facts of the case based upon the evidence, not
      based upon what somebody did in the past. And you would be
      instructed on that. If a prior conviction came out during guilt-
      innocence, the judge would give you very specific instructions on
      what you could consider that for. Does that answer your question?

            Venireperson: Uh-huh.

      During closing arguments, the State argued that Hart had been delusional

and paranoid because he had deliberately chosen not to take his anti-seizure

medicine, that he was a liar, that he could not have reasonably believed that

setting the fire was immediately necessary to avoid harm, and that Hart was

reckless.

      Hart’s counsel argued that Hart’s prior convictions were offered to confuse

the jurors and to prejudice them against Hart. She asked the jury to set aside

those old convictions unless they thought Hart’s integrity and credibility were

affected by them. She reminded the jury that Hart had made the decisions he did

because he had been homeless, and she argued that Hart had reasonably

believed that his conduct was immediately necessary to avoid imminent harm

because it would summon help to him.

      In rebuttal, the State responded that an ordinary and reasonable person

would take his anti-seizure medicine and that Hart was, therefore, reckless when



                                       13
he opted not to. The State also argued that Hart had adapted toilet paper into a

deadly weapon by igniting it with a cigarette lighter.12 The trial court included an

instruction on necessity in the jury charge, along with two limiting instructions,

and the jury found Hart guilty and found that he had used a deadly weapon.

      Despite Hart’s explanation for setting the fire—which was repeated by

several witnesses in addition to Hart himself—the jury was entitled to find that

Hart had been reckless in setting the fire and that his belief that setting fire was

immediately necessary to avoid imminent harm was not reasonable in light of his

deliberate decision not to take his anti-seizure medication.13

      In light of all of the evidence and the arguments presented at trial, and in

the context of the entire case against Hart, we conclude that the admission of

evidence that Hart was a sex offender did not have a substantial or injurious

      12
       We express no opinion about the State’s theory in this regard because it
was not raised as a point of error on appeal.
      13
         During the punishment phase, Hart pleaded true to the enhancement
allegation regarding his prior felony convictions. In closing, Hart’s counsel
reminded the jury that because the punishment range had been enhanced by
Hart’s admitting to his prior convictions, the jury had to decide from a range of
two to twenty years’ confinement but that Hart was already a prisoner of his
mind. She pointed out that Hart did not mean to burn down a building and that,
“[f]or whatever reason, he got the attention he needed.” And she pointed out that
Hart’s previous offenses had been several years prior and that Hart was
seventeen years old when he pleaded guilty to the 1996 indecency offense. She
also stated that Hart was still paying for that indecency conviction and would be
doing so for the rest of his life. She asked that the jury assess only two years’
confinement “because this crime is only worth that.” The prosecutor agreed that
Hart’s crime was not worthy of a twenty-year sentence but reminded the jury that
Hart had made choices that night and asked the jury to assess five years’
confinement. The jury assessed three years’ confinement.


                                        14
effect on the jury’s verdict and did not affect his substantial rights. See King, 953

S.W.2d at 271. Therefore, we overrule Hart’s sole issue.

                                 IV. Conclusion

      Having overruled Hart’s sole issue, we affirm the trial court’s judgment.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 8, 2015




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