                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 BENJAMIN JAMES PATTERSON,                     §
 A/K/A BENJAMIN JAMES TALTON,                                  No. 08-13-00111-CR
 A/K/A BENJAMIN J. TALTON,                     §
                                                                  Appeal from the
                          Appellant,           §
                                                                355th District Court
 v.                                            §
                                                              of Hood County, Texas
 THE STATE OF TEXAS,                           §
                                                                  (TC# CR12031)
                          Appellee.             §


                                         OPINION

       Appellant Benjamin James Patterson was indicted for theft of property valued at $20,000

or more but less than $100,000.    See TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West 2011).

After Appellant pleaded not guilty to the charged offense, the jury found him guilty and assessed

punishment at 99 years’ imprisonment.    On appeal, Appellant raises three issues for our review.

We affirm.

                                        BACKGROUND

       Color surveillance video from the First National Bank of Granbury shows three masked

men use an El Camino to smash through the windows of the bank, steal an ATM machine out of

the bank, and place it into the back of the El Camino around two o’clock in the morning on
December 2, 2010.      A Hood County Sheriff officer, who was driving in the area, heard the

alarm call at the bank and observed a dark-colored El Camino exiting the bank parking lot.

After a high-speed chase, the ATM machine fell out of the vehicle on James Road, the El

Camino crashed into a fence on Royal Lane, and the three suspects fled on foot.     Two of the

men were captured, and although officers set up a perimeter to search for the third suspect, the

third suspect was not located.    However, officers discovered a black glove in between two

houses. The glove was photographed and collected and put into evidence.           After officers

watched the bank surveillance video, it was noted that the third suspect was wearing black

gloves.

          At approximately 8 o’clock in the morning on December 2, 2010, Hood County Sheriff

Officer Matthew Bales responded to a report of a stolen GMC on 5410 Frank Lane in Granbury

which was near where the El Camino had wrecked.      That same day, the stolen GMC was found

abandoned in the middle of Lake Como in Fort Worth, Texas.        Also in the morning hours of

December 2, 2010, Albert Stewart called police to report that his 1979 El Camino had been

stolen from his home in Fort Worth.

          On December 5, 2010, Hood County Sheriff’s Officer Jeremy Roth responded to a report

of a burglary of a non-operational pickup on 5412 Frank Lane in Granbury which was near

where the El Camino had wrecked and was next door to 5410 Frank Lane, where the GMC was

stolen.    Officer Roth observed the pickup had been broken into and he noted damage to the

steering column and observed a dry, red substance on the steering column. Based on his

training and experience, Officer Roth believed the substance was blood.        Samples of the

substance confirmed to be blood were collected for analysis and booked into evidence. Upon


                                               2
further investigation by police, it was determined that Appellant’s DNA matched the blood

samples found on the steering column of the burglarized pickup and Appellant’s DNA could not

be excluded as a contributor to the major male DNA mixture profile from the DNA samples

retrieved from the black glove found during the search for the third suspect.   At trial, the State’s

theory of the case was that Appellant was the third missing suspect who had dropped his glove

during his escape after the El Camino crashed.          After Appellant attempted to steal the

non-operational vehicle at 5412 Frank Lane and somehow cut himself leaving blood on the

steering column, he went next door to 5410 Frank Lane and stole the GMC.            Appellant then

drove to Fort Worth where he resided, and tried to hide the stolen GMC by dumping it in Lake

Como which was in close proximity to his home.

                                         DISCUSSION

       In three issues on appeal, Appellant complains the trial court erred: (1) in admitting

evidence of extraneous offenses; (2) by failing to give the jury an instruction limiting its

consideration of the extraneous offenses; and (3) by allowing witness testimony in violation of

the witness rule.

                    ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE

       In Issue One, Appellant complains the trial court erred by overruling his objections and

admitting extraneous offense evidence. He argues that the evidence was inadmissible under

Texas Rules of Evidence 403 and 404(b).

                                       Standard of Review

       We review the admission of extraneous offense evidence for an abuse of discretion.        De

La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Prible v. State, 175 S.W.3d 724,


                                                3
731 (Tex.Crim.App. 2005).    A trial court does not abuse its discretion if the decision to admit or

exclude the evidence is within the “zone of reasonable disagreement.”         Orona v. State, 341

S.W.3d 452, 464 (Tex.App. – Fort Worth 2011, pet. ref’d) (citing Montgomery v. State, 810

S.W.2d 372, 380 (Tex.Crim.App. 1990) (op. on reh’g)); Oprean v. State, 201 S.W.3d 724, 726

(Tex.Crim.App. 2006).    A trial court’s determination on the admissibility of extraneous-offense

evidence typically falls within the zone of reasonable disagreement if the evidence shows: (1)

that an extraneous transaction is relevant to a material, non-propensity issue, and (2) the

probative value of that evidence is not substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading of the jury.   De La Paz, 279 S.W.3d at 344.

The trial court’s ruling must be upheld if it is reasonably supported by the record and correct

under any applicable theory of the law.         See Willover v. State, 70 S.W.3d 841, 845

(Tex.Crim.App. 2002).

                                        Applicable Law

       Relevant evidence is any evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable than it would be

without the evidence.   TEX.R.EVID. 401.    Under Texas Rules of Evidence 404(b), evidence of

other crimes, wrongs, or acts is not admissible to prove that the accused committed the charged

offense in conformity with his bad character.       TEX.R.EVID. 404(b).      However, it may be

admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.    Id.; Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App.

2011); Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1991)(op. on reh’g).          These

exceptions are neither mutually exclusive nor collectively exhaustive.    De La Paz, 279 S.W.3d


                                                4
at 343.    For example, “under the reasoning that events do not occur in a vacuum[,]” evidence of

extraneous offenses may be admissible “[t]o show the context in which the criminal act

occurred[.]” Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972); see also Devoe, 354

S.W.3d at 469 (discussing admissibility of same-transaction contextual evidence).     The jury is

entitled to know all relevant surrounding facts and circumstances of the charged offense.

Devoe, 354 S.W.3d at 469.       In order for an extraneous offense to be admissible, it must be

relevant apart from supporting an inference of character conformity.       See Montgomery, 810

S.W.2d at 387; TEX.R.EVID. 401.      However, under Rule 403, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusions of the

issues, misleading the jury, or by considerations of undue delay, or needless presentation or

cumulative evidence.     TEX.R.EVID. 403.

                                             Analysis

          The record establishes Appellant filed a pretrial motion in limine with regard to any

extraneous offenses offered by the State.        The State explained that it considered three

extraneous offenses res gestae to the charged offense and argued that although the extraneous

offenses constituted different criminal offenses, they were all part and parcel of the charged

offense and the flight therefrom.   The three extraneous offenses presented by the State included:

(1) the theft of the El Camino; (2) the burglary of the non-operational vehicle in which

Appellant’s DNA was discovered; and (3) the theft of the GMC that was abandoned in Lake

Como.      Appellant raised a Rule 404(b) objection to all three offenses and argued the elements

of the extraneous offenses were not consistent with the elements of the charged offense.        In

response, the State argued the extraneous offenses were part and parcel of the same transaction


                                                 5
and that they proved identity, modus operandi, and the preparation and plan for the charged

offense and the flight therefrom.      The State urged the extraneous offenses proved Appellant

broke the steering columns of the vehicles in the same way and that he used the stolen GMC in

his flight from the bank theft.

        After conducting a balancing test, the Court determined the extraneous offenses

concerning the stolen El Camino and the non-operational vehicle in which Appellant’s DNA was

discovered were admissible. Specifically, the trial court found those offenses were relevant to a

fact of consequence before the jury and were not conduct in conformity with character evidence,

and that the probative value outweighed any prejudicial effect under Rule 403. The trial court

sustained Appellant’s objection to the extraneous offense concerning the stolen GMC, but

reserved its right to revisit the issue during the course of trial.

        At trial, the State argued the extraneous offense evidence was res gestae of the charged

offense, and should be admitted as a Rule 404(b) exception and as contextual evidence to show

how the crime was committed and how Appellant fled from the crime to his home in Fort Worth.

Appellant reasserted his objections to the admission of the extraneous offenses. The State

further urged that identity was at issue and argued that the only thing Appellant contested was

whether he was the third suspect that committed the crime.            After considering the totality of the

evidence and conducting another balancing test, the trial court found all the extraneous offense

evidence to be admissible.     Appellant’s subsequent Rule 404(b) and Rule 403 objections to the

extraneous offense evidence were overruled by the trial court.

        On appeal, Appellant argues the extraneous offense evidence was admitted in error.

Appellant maintains the State proved only “that a third guy got away.”              He further complains


                                                    6
that but for the improperly admitted extraneous offense evidence, the case would have been

dismissed for insufficient evidence.

       In response, the State maintains admission of the extraneous offense evidence was not

error “because they were part of the same criminal event and their similarity established the

identity of the defendant.”   The State argues the attempted theft of the non-operational vehicle

in which Appellant’s DNA was discovered and that the actual theft of the GMC found in Lake

Como were part of the Appellant’s flight from the bank theft. As such, the State maintains that

those two extraneous offenses were admissible to prove guilt and because they were part of the

same transaction. As to the theft of the El Camino, which was reported December 2, the

morning of the bank theft, the State asserts that the theft of the El Camino was germane to the

planning, preparation, and execution of the actual bank theft.   The State further points out that

the steering columns of all three vehicles were broken in an identical fashion.   According to the

State, the extraneous offenses “were pieces of the same crime that only have meaning when

examined together.” The State contends the extraneous offenses “give context to the bank theft

and show [Appellant’s] handiwork, or identity.”     The State also argues the extraneous offense

evidence was highly probative because it gave context and helped rebut Appellant’s defense that

he was not the perpetrator.

       We agree with the State that the extraneous offense evidence was res gestae of the

offense or same transaction contextual evidence.    The record shows the El Camino was stolen

from a residence in Fort Worth close to the homes of Appellant and the other two suspects

involved in the bank theft.   The owner of the El Camino reported it stolen the morning of the

bank theft.   The burglary of the non-operational vehicle in which Appellant’s DNA was


                                                7
discovered and the theft of the GMC that was later found in Lake Como occurred in the same

area the El Camino crashed and the three suspects fled on December 2, 2010. The report of the

burglary of the non-operational pickup, in which Appellant’s DNA was found, was made on

December 5, 2010. The GMC was stolen on the same date as the bank theft from a home

located next door to the burglarized vehicle which contained Appellant’s DNA.      It was also in

that same neighborhood that the black glove containing Appellant’s DNA was found.            The

record establishes that the third suspect who escaped after the El Camino crashed was wearing

black gloves.   On the same day it was stolen, the GMC was found abandoned in Lake Como

which was in close proximity to Appellant’s home and the homes of the other two suspects.    All

three vehicles involved in the extraneous offenses presented by the State had similar damage of

the steering columns.   Moreover, officers obtained keys from Anthony Hannon, one of the

apprehended suspects, to a vehicle found where the ATM fell out of the El Camino.       Inside of

that vehicle, officers found Hannon’s wallet and cell phone.       A search of the cell phone

revealed that Hannon and Appellant made calls to one another on December 2, 2010, around the

time of the bank theft and had made a number of calls to each other prior to the date of the bank

theft. The subpoenaed cell phone records showed that after 1:41 a.m. on December 2, 2010,

there were no other calls made between the phone numbers of Appellant and Hannon.

       On the record before us, we conclude the trial court could have reasonably concluded the

extraneous offense evidence concerning the El Camino, the burglary of the vehicle containing

Appellant’s DNA, and the stolen GMC abandoned in Lake Como was res gestae of the offense

or same transaction contextual evidence.   See Devoe, 354 S.W.3d at 469-71 (holding extraneous

offense evidence of other uncharged crimes and incidents that occurred throughout the entire


                                               8
crime spree that resulted in the murder of six people, in three locations, over a period of three

days, was admissible as same-transaction contextual evidence because the State needed the

evidence to explain appellant stole the gun to go after women and then stole vehicles to

effectuate his interstate flight to the home of his mother).    At a minimum, the trial court’s

admission of the extraneous offense evidence is within the zone of reasonable disagreement as to

whether the evidence was needed to prove identity or understand the res gestae of the charged

offense.   Accordingly, we conclude the trial court did not abuse its discretion in admitting the

complained-of extraneous offense evidence.

       The extraneous offense evidence was also admissible to rebut Appellant’s defensive

theory that he was not the third suspect who escaped after the El Camino crashed.   See Williams

v. State, 301 S.W.3d 675, 687 (Tex.Crim.App. 2009); Moses v. State, 105 S.W.3d 622, 626

(Tex.Crim.App. 2003); see also Powell v. State, 63 S.W.3d 435, 439-40 (Tex.Crim.App. 2001)

(the admission of extraneous offense evidence to rebut a defensive theory raised in the accused’s

opening statement is within the trial court’s discretion).   At trial, during Appellant’s opening

statement, Appellant advanced a theory that Appellant was not the third suspect who escaped

after the bank robbery:

       Defense counsel: Folks, what you just heard was a giant fishing expedition.
       There’s nothing specific about it, and we anticipate in this case there’s not going
       to be anything specific about what they can prove. All right. Fishing for the
       next two days, fishing in troubled waters. The realty of it is that they got the
       wrong guy.

                                               …

       You’re going to hear a lot of talk about DNA, a lot of talk about cuts and bruises,
       a lot of talk about what could have happened, okay? But none of those things
       speak directly to the elements of what happened over at First National Bank.
       And you won’t hear any evidence that places [Appellant] at the scene of that

                                                9
       crime on the night that it happened.   It’s a theory.   That’s what the evidence is
       going to show.

                                               …

       What we expect to see is that you will hear testimony of some very smart people,
       some very honest, hard-working people who live and work right here in Hood
       County, okay? They don’t know a whole lot about the third guy in this offense.
       They won’t be able to specifically put their finger on [Appellant]. Not saying
       that they’re bad people, but we want you to examine their testimony very closely.

       At the end of this testimony, we’re going to return to you, we’re going to ask you
       to find [Appellant] not guilty.

       Similarly, during closing argument, Appellant’s counsel summed up the State’s evidence

as showing that “[t]he third guy got away.” The jury was told that Appellant was not the third

guy and that nothing was presented to prove that he was the third guy.       Appellant’s counsel

stated that “what the State has attempted to do [was] show [the jury] in general terms that

[Appellant is] a bad person, because they cannot specifically prove that the third guy was him.”

       Based on the record before us, we find that the trial court could have reasonably concluded

the extraneous offense evidence was not offered solely for character conformity purposes, but was

offered to show a material, nonpropensity issue. See Devoe, 354 S.W.3d at 469 (admission of

evidence under Rule 404(b) is generally within the zone of reasonable disagreement and not an

abuse of discretion if there is evidence supporting that an extraneous offense is relevant to a

material, nonpropensity issue).

       Next, we address whether the probative value of the extraneous offense evidence was

substantially outweighed by the danger of unfair prejudice. See TEX.R.EVID. 403; Montgomery,

810 S.W.2d at 389. Rule 403 favors the admissibility of relevant evidence, and presumes that

relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782,


                                               10
787 (Tex.Crim.App. 2006). Appellate courts should afford deference to a trial court’s Rule 403

balancing evaluation and should reverse a trial court “rarely and only after a clear abuse of

discretion.” Montgomery, 810 S.W.2d at 392. In conducting a Rule 403 analysis, the following

four factors are considered by the trial court: (1) how compellingly the extraneous evidence

serves to make more or less probable a fact of consequence; (2) the potential of the evidence to

impress the jury in an irrational and indelible way; (3) the time needed to develop evidence of

extraneous misconduct; and (4) the degree of the proponent’s need for such evidence.

Montgomery, 810 S.W.2d at 389-90.

       Here, the extraneous offense evidence is highly probative as it was relevant to show the

contextual background of the offense, the identity of the third suspect in the bank theft, and to

rebut a defensive theory. The first factor favors admission.     In regard to the second factor,

there is nothing in the record or about the nature of the extraneous offenses which indicate the

extraneous offense evidence had the potential to impress the jury in an irrational and indelible

way.   The second factor favors admission.   As to the third factor, the time needed to develop the

extraneous offense evidence, the State presented nineteen witnesses during its case-in-chief. Of

those witnesses, seven provided testimony about the extraneous offenses. We note the reporter’s

record containing the transcription of the guilt-innocence phase of trial spans over two-hundred

pages while the testimony concerning the extraneous offenses spans over less than sixty pages of

the record. Additionally, the time the State used to refer to the extraneous offenses during

opening and closing statements was minimal.         The third factor favors admission.     Lastly,

because Appellant’s identity as the third suspect was a contested issue at trial, the extraneous

offense evidence was needed to show the contextual background of the offense, identity, and to


                                               11
rebut a defensive theory. See Prince v. State, 192 S.W.3d 49, 56 (Tex.App. – Houston [14th

Dist.] 2006, pet. ref’d). Thus, trial court could have concluded that the State’s need for the

extraneous offense evidence was great.

       Appellant also complains the trial court erred in admitting State’s Exhibit 208, a copy of

the subpoenaed cell phone records showing that phone calls were exchanged between Appellant

and Hannon. The State maintains the cell phone records were relevant and admissible because

they “demonstrated a connection between one of the captured suspects and [Appellant]; the record

was material to proving he was the third suspect, a fact of consequence in the case.” We agree

with the State. Here, Hannon’s cell phone was found in a vehicle were the ATM fell out of the El

Camino as it fled the bank. The subpoenaed phone records showed a number of calls between

Hannon’s cell phone number and Appellant’s cell phone number on December 2, 2010, including

one during the time frame of the bank theft, as well as calls before the date of the bank theft.

However, after the theft and Hannon’s capture, there were no more calls made between the two

cell phone numbers. In this case, where identity was at issue and Appellant’s defensive theory

was that he was not the third suspect who escaped from police, the evidence was relevant and

highly probative because it made facts of consequence more likely. The trial court did not err by

admitting this evidence.

       We conclude the trial court did not abuse its discretion in determining that the probative

value of the extraneous offense evidence was not substantially outweighed by the danger of unfair

prejudice. See TEX.R.EVID. 403. Because the trial court’s ruling was “within the zone of

reasonable disagreement,” we conclude the trial court did not abuse its discretion by admitting the

complained-of extraneous offense evidence. See De La Paz, 279 S.W.3d at 344; Orona, 341


                                                12
S.W.3d at 464; Oprean, 201 S.W.3d at 726; TEX.R.EVID. 403, 404(b).        Issue One is overruled.

                                      Limiting Instruction

       In Issue Two, Appellant argues the trial court should have given a limiting instruction

instructing the jury to consider the extraneous offense evidence only on the issue of identity.

Alternatively, he complains his trial counsel was ineffective for not requesting a limiting

instruction as to identity after his Rule 404(b) objection was overruled and for not requesting a

limiting instruction as to identity in the jury charge. However, as correctly noted by the State no

limiting instruction is required for same transaction contextual evidence.        See Devoe, 354

S.W.3d at 471; Wesbrook v. State, 29 S.W.3d 103, 114-15 (Tex.Crim.App. 2000); Camacho v.

State, 864 S.W.2d 524, 535 (Tex.Crim.App. 1993). As set forth in Issue One, the extraneous

offense evidence constituted same transaction contextual evidence. Accordingly, the trial court

did not err in failing to provide the jury with a limiting instruction as to evidence.   See Devoe,

354 S.W.3d at 471.

       Even assuming the extraneous offense evidence was not same transaction contextual

evidence, because we also believe the complained-of evidence was admissible to show a

material, nonpropensity issue, there would be no error because the record establishes and

Appellant concedes that he did not request a limiting instruction. The party opposing evidence

or seeking a limitation bears the burden to object and request a limiting instruction at the

introduction of the evidence.   Hammock v. State, 46 S.W.3d 889, 894 (Tex.Crim.App. 2001);

see also Walker v. State, 300 S.W.3d 836, 849 (Tex.App. – Fort Worth 2009, pet. ref’d). When

a defendant fails to request a limiting instruction when the evidence is introduced, he fails to

preserve error and the trial court is not obligated to provide a limiting instruction.   Hammock,


                                                13
46 S.W.3d at 895.    A 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.) (citing Burks v. State, 876 S.W.2d 877 (Tex.Crim.App.

1994) (stating that to avoid forfeiture of appellate complaint a party must let trial court know

what he wants, why he is entitled to it, and to do so in a clear enough manner to allow trial court

to do something about it)).

       Without citing to any authority, Appellant maintains the trial court was obligated to

provide a limiting instruction as to identity at the time the extraneous offense evidence was

admitted and when it charged the jury because the State requested and agreed to such an

instruction. Specifically, Appellant points to the following colloquy which occurred during a

bench conference on the extraneous offense evidence:

       MR. GREEN: Judge, we would object. Again, I’d like to renew my prior
       objection that these extraneous acts and the facts that the State has just stated are
       completely different from the facts of the case. To be more specific, what the
       State is trying to prove is that the car theft, the alleged car theft is conduct that
       conforms with - - that it is character evidence to show that he acted in conformity
       with bad character.... Identity here is not a critical component of proving that
       [Appellant] was a part of the burglary that happened.
       We would specifically like to have this evidence excluded.
                                               ...
       MR. BERRY: Your Honor, we would agree with the limiting instruction both at
       the time that the evidence is submitted and in the charge of the Court, limiting this
       matter to the - - to the matter of identity. But identity is the issue in this case.
       Obviously, this crime was committed. The only - - the only thing that the
       [Appellant is] contesting is whether or not he was the one that was the third
       suspect that committed this crime.
       We also note that in its briefing, the State asserts Appellant requested a limiting

instruction based on the following colloquy between Appellant and the trial court during a

pretrial hearing on Appellant’s motion in limine regarding the extraneous offense testimony:
                                                14
       MR. GREEN: Judge, we would like to take issue with all of those matters
       because none of those are elements of the charged offense before the Court.
       What we would like to have, we would like to bring those matters to the bench
       before testimony is offered to the jury. If any of those items are allowed to be
       presented to the jury, we would like also for the - - to be a limiting instruction and
       also like for there to be a specific instruction with regard to why those extraneous
       offenses are being presented to the jury.
       THE COURT: All right. You may bring those matters before the Court
       outside the presence of the jury. Do you want to do that at this time or - - or you
       don’t want to wait until we reach that point in the testimony where you want to
       offer any information about those extraneous matters and have that matter
       discussed and taken up outside the jury’s presence then? How do you want to do
       it?
We reject both Appellant’s and the State’s characterizations of the above statements to the trial

court as specific requests for a limiting instruction.

       Because Appellant bore the burden of requesting a limiting instruction and did not

request an instruction at any point during the pretrial hearing, trial on the merits, or charge

conference, he was not entitled to a limiting instruction and has failed to present anything for

review on appeal.      See Delgado v. State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007);

(explaining that an objection to admission of evidence and a request for a limiting instruction

must be made when evidence is introduced for a party to be entitled to a limiting instruction);

Walker, 300 S.W.3d at 849 (if appellant fails to request limiting instruction when evidence is

admitted, appellant does not preserve); Slaughter v. State, No. 14-05-00863-CR, 2006 WL

2805564, at *4 (Tex.App. – Houston [14th Dist.] Oct. 3, 2006, no pet.) (mem. op., not designated

for publication) (holding when defendant fails to request limiting instruction when evidence is

introduced, then he cannot complain about its admission on appeal).

       However, the charge of the court did include a limiting instruction as to the extraneous

offense evidence that provided:

                                                  15
        [Y]ou are instructed if there is any testimony regarding the defendant’s having
        committed offenses other than the offense alleged against him in the indictment in
        this case, you cannot consider said testimony for any purpose unless you find and
        believe beyond a reasonable doubt that the defendant committed such other
        offenses, if any, were committed, and even then you may only consider the same
        in determining the intent or knowledge of the defendant, if any, in connection
        with the offense, if any, alleged against him in the indictment in this case and for
        no other purpose.

The record reflects that during the charge conference, Appellant did not object to the trial court’s

proposed jury charge which included the above-referenced limiting instruction.          Appellant also

failed to make any special requests or instructions at that time.              On appeal, Appellant

acknowledges the trial court provided the jury with a limiting instruction that was not on point as

it instructed the jury “as to ‘intent and knowledge’ rather than ‘identity’, the main issue.”

However, he does not complain that the instruction as given to the jury was improper or that he

was harmed in any way by the instruction that was provided to the jury.

                                 Ineffective Assistance of Counsel

        In the alternative, Appellant contends he received ineffective assistance of counsel.

However, in support of his argument, Appellant merely states that his “trial counsel had no

reasonable trial strategy to fail to request the limiting instruction, and therefore the trial counsel’s

representation fell below an objective standard of reasonableness requiring a reversal.” The rules

of appellate procedure require an appellant’s brief to contain a clear and concise argument

containing appropriate citations to authority and to the record. See TEX.R.APP.P. 38.1(i). To

prevail on a claim of ineffective assistance of counsel, Appellant must satisfy a two-prong test by a

preponderance of evidence showing that: (1) his attorney’s performance was deficient; and that (2)

his attorney’s deficient performance deprived him of a fair trial.      Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350,
                                              16
353 (Tex.Crim.App. 2005).    Under the first prong, the attorney’s performance must be shown to

have fallen below an objective standard of reasonableness.   Thompson v. State, 9 S.W.3d 808,

812 (Tex.Crim.App. 1999). Namely, Appellant must prove that his attorney’s conduct fell

below the professional standard.   Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002).

Under the second prong, Appellant must establish that there is a reasonable probability that but

for his attorney’s deficient performance, the outcome of his case would have been different.

See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.

       Appellant fails to put forth any argument and analysis showing that the record and the law

support his contention.     Accordingly, we conclude Appellant has inadequately briefed this

argument, and has waived appellate review of his complaint. See McCarthy v. State, 65 S.W.3d

47, 49 n.2 (Tex.Crim.App. 2001) (an inadequately briefed issue may be waived on appeal); see

also Bessey v. State, 199 S.W.3d 546, 555 (Tex.App. – Texarkana 2006), aff’d, 239 S.W.3d 809

(Tex.Crim.App. 2007) (ineffective assistance claim overruled due to inadequate briefing where

appellant’s brief made no effort to show how record demonstrated prejudice under Strickland).

Issue Two is overruled.

                                     Violation of the Rule

       In Issue Three, Appellant contends the trial court abused its discretion when it allowed

Cheryl Wright, a witness for the State, to testify after she had heard testimony of two other

witnesses in court despite invocation of the witness rule, and that Appellant was harmed as a

result of the violation.   Texas Rule of Evidence 614 provides for the exclusion of witnesses

from the courtroom during trial so they cannot hear the testimony of other witnesses.        See

TEX.R.EVID. 614.     The purpose of the Rule is to prevent the testimony of one witness from


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influencing the testimony of another witness.           Russell v. State, 155 S.W.3d 176, 179

(Tex.Crim.App. 2005).     If the Rule is violated by a witness, the witness’s testimony may be

admitted or excluded at the trial court’s discretion.        Bell v. State, 938 S.W.2d 35, 50

(Tex.Crim.App. 1996).

       We review the trial court’s decision whether to exclude a witness who has violated the

Rule for an abuse of discretion.    Webb v. State, 766 S.W.2d 236, 240 (Tex.Crim.App. 1989);

State v. Saylor, 319 S.W.3d 704, 710 (Tex.App. – Dallas 2009, pet. ref’d). A violation of the

Rule is not in itself reversible error, but only constitutes error when the objected-to testimony is

admitted and the complaining party is harmed.         See Webb, 766 S.W.2d at 239-40; Archer v.

State, 703 S.W.2d 664, 666 (Tex.Crim.App. 1986). Harm to the complaining party is proven

by showing that: (1) the witness actually conferred with or heard testimony of other witnesses;

and (2) the witness’s testimony contradicted the testimony of a witness from the opposing side or

corroborated the testimony of a witness he had conferred with or heard.     Archer, 703 S.W.2d at

666.

       The record reflects that Wright mistakenly overheard twenty minutes of testimony from

other witnesses after the rule was invoked.    Outside of the presence of the jury, Wright told the

court that she did not remember who was testifying when she was in the courtroom and that she

could not say what was talked about.          Wright’s testimony was admitted over Appellant’s

objection that her testimony was tainted as a result of her presence in the courtroom during the

officers’ testimony.

       Although the record clearly reflects Wright violated the rule because she heard the

testimony of Officers Hicks and Grizzard, Wright’s testimony did not contradict or corroborate


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the testimony of either officer.   The extent of Wright’s testimony was that she lived on Frank

Lane and owned a 1992 GMC pickup that was stolen on December 2, 2010. According to

Wright, there had been no damage to the steering column of her vehicle before it was stolen.

The record reflects that the testimony of Officers Hicks and Grizzard had nothing to do with

Wright’s residence, vehicle, or the damage to the vehicle’s steering column.      While Appellant

seems to argue that Wright overheard a discussion of the State’s theory of the case that occurred

with the trial court just before the lunch recess, we agree with the State that a careful review of

the record shows that any discussion about the State’s theory of the case was taken up after the

trial court broke for lunch and outside of the presence of Wright.     Accordingly, we conclude

Appellant was not harmed or prejudiced by Wright overhearing the testimony of Officers Hicks

and Grizzard. The trial court did not abuse its discretion in admitting Wright’s testimony.

Webb, 766 S.W.2d at 240.     Issue Three is overruled.

                                         CONCLUSION

       Having overruled all three of Appellant’s issues, the trial court’s judgment is affirmed.



                                             YVONNE T. RODRIGUEZ, Justice
January 14, 2015

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating

(Do Not Publish)




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