Opinion issued August 7, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-12-01128-CR
                             NO. 01-12-01129-CR
                          ———————————
                       LAWRENCE REED, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 56th District Court
                          Galveston County, Texas
               Trial Court Case Nos. 12CR0429 and 12CR0727


                         MEMORANDUM OPINION

      A jury found appellant, Lawrence Reed, guilty of the offenses of deadly

conduct 1 and unlawful possession of a firearm by a felon, 2 and it assessed his


1
      See TEX. PENAL CODE ANN. § 22.05 (Vernon 2011); appellate cause number 01-
      12-01128-CR; trial court cause number 12CR0429.
punishment at confinement for ten years for each offense, with the sentences to run

concurrently.   In four issues, appellant contends that the evidence is legally

insufficient to support his convictions and the trial court erred in admitting certain

evidence and not compelling the State to test forensic evidence.

      We affirm.

                                    Background

      The complainant, Herneilius Preston, testified that on February 3, 2012,

appellant came to his automobile repair shop in La Marque, Texas. After the

complainant saw appellant fighting with his friend, Markus Frank, he stepped in

between the men to stop the fight, picked up appellant, took him to his car, a green

Cadillac, and told him that he needed to leave the shop. Appellant then told the

complainant that he was “wrong” and he would be back. Frank also left the shop,

but a few minutes later, telephoned to warn the complainant that he believed

appellant was on his way back to the shop.

      The complainant was still speaking with Frank on the telephone when

appellant came back to the shop as a passenger in the same green Cadillac in which

he had left.    Appellant, while in the passenger seat of the car, asked the

complainant, “Where [Frank] at?” Although the complainant told appellant that he

had made Frank leave, appellant insisted that Frank was still at the shop.
2
      See TEX. PENAL CODE ANN. § 46.04 (Vernon 2011); appellate cause number 01-
      12-01129-CR; trial court cause number 12CR0727.


                                          2
Appellant then pulled out a handgun, and the complainant asked if he was “going

to shoot [his] shop up.”      The complainant noted that appellant, still in the

passenger seat of the green Cadillac, held the gun in his right hand, with his arm

hanging out of the car window. The complainant asked again if appellant was

going to “shoot [up his] shop while [his] little boy” was there, and appellant

replied, “Fuck you and your little boy.” Appellant then fired four to five shots, and

the complainant dropped to the ground to avoid being hit.

      The complainant identified for the jury photographs showing bullet holes in

his shop’s door, a customer’s car, and the side of his building. He also identified

and described the contents of a surveillance-camera videotape recording showing

appellant’s green Cadillac driving by and stopping momentarily at the shop,

appellant talking to the complainant and then shooting his gun, and the green

Cadillac driving away.

      The complainant also explained that in a subsequent conversation with

appellant, appellant apologized to him for the shooting and said “Man, it wasn’t

supposed to go down like that.” The complainant later received a telephone call

from another man, whom appellant had asked to make the call. The complainant

could hear appellant in the background telling the other man what to say to him.

During the call, appellant instructed the other man to ask the complainant not to




                                         3
testify against him, and he offered the complainant money in exchange for not

testifying.

       Markus Frank testified that he has known appellant, who drives a green

Cadillac, since childhood.    Frank explained that he has been a friend of the

complainant and sometimes works in his automobile repair shop. On February 3,

2012, Frank was at the shop “hanging out” with the complainant and Emil Thorne

when appellant drove up. Frank and appellant then had a “little fistfight” about a

girl. After the complainant broke up the fight and put appellant into the green

Cadillac, Frank and Thorne left the shop in Thorne’s car. At a nearby stop sign,

Frank saw Decoreyon Thomas driving appellant’s green Cadillac, with appellant

seated in the passenger seat, and turning back toward the shop.         Frank then

telephoned the complainant to tell him that Thomas and appellant might be headed

to his shop. While he was still speaking with the complainant on the telephone,

Frank overheard the complainant talking very loudly and then two to three

gunshots.     After hearing the gunshots, Frank and Thorne went back to the

complainant’s shop, where Frank saw bullet holes in the outside of the

complainant’s building and in the back taillight of a customer’s car.

      Emil Thorne testified that he has been a friend of Frank’s since they were in

high school and had known appellant, who drives a green Cadillac, for about a

year. Thorne explained that he and the complainant are business partners, with



                                          4
Thorne running a haircutting business in the complainant’s shop. On the afternoon

of February 3, 2012, Thorne was outside the shop when appellant pulled up in his

car.   Thorne saw Frank and appellant’s fistfight and the complainant putting

appellant back into his car. About ten minutes after appellant had left the shop,

Thorne and Frank left to drive to Frank’s home. As they were driving, Thorne saw

appellant’s car heading in the direction of the complainant’s shop, but he could not

see who was driving. Frank then telephoned the complainant, and while they were

talking, Thorne heard the complainant say “He shooting.” Thorne turned his car

around and drove back to the complainant’s shop, where he saw bullet holes in the

complainant’s building, the shop’s door, and a customer’s car.

       La Marque Police Department (“LMPD”) Sergeant R. Garcia testified that

on February 3, 2012, he was dispatched to investigate the shooting at the

complainant’s shop. When he arrived and learned that no one had been injured, he

located witnesses and secured the crime scene. Garcia later found the green

Cadillac that witnesses had described to him at Thomas’ residence.

       LMPD Detective Sergeant S. Spruill testified that after he learned of the

shooting at the complainant’s shop, he went to the crime scene.            He was

subsequently informed that officers had located the green Cadillac involved in the

shooting and had detained Thomas. Spruill then went to the location of the green

Cadillac. After the car was towed to an impound lot, he obtained warrants to



                                         5
search the green Cadillac and to obtain DNA samples from appellant and Thomas.

Spruill noted that he and other LMPD officers later checked the entire area around

the complainant’s shop for bullet holes, and they found multiple bullet holes in the

door to the shop and the complainant’s building.

         LMPD crime scene investigator (“CSI”) B. Auzston testified that on

February 3, 2012, he was dispatched to the shooting at the complainant’s shop. He

used a “grid pattern” to look for evidence, and he took photographs at the crime

scene.     Auzston also obtained and reviewed a surveillance-camera videotape

recording of the shooting and he recovered from a Pontiac Grand Prix, owned by a

customer of the complainant, two “rounds,” or spent bullets, from a handgun. One

of the bullets went through the taillight of the Pontiac and the other was located

under the car.

         After he photographed the crime scene, officers notified CSI Auzston that

the green Cadillac involved in the shooting had been located.         He then met

Sergeant Spruill at the location of the green Cadillac, and he took photographs of

it. The officers had the green Cadillac towed to an impound lot, and they later

obtained a warrant to search it for shell casings and other evidence and swab it for

DNA evidence and gunshot residue.        Auzston explained that he swabbed the

Cadillac’s door handles and other surfaces on the passenger side of the car for

DNA evidence.       He also swabbed the passenger-side door panel for gunshot



                                         6
residue. Although Auzston initially testified that he believed that he did not have

test results regarding the gunshot residue because they had been delayed at the

Texas Department of Public Safety (“DPS”) lab, he later explained that, due to his

oversight, the gunshot residue was not submitted to DPS for testing. And the

gunshot residue swabs were still in the LMPD vault at the time he testified.

Auzston noted that no matter what type of handgun had been used in the shooting

at the complainant’s shop, it was a firearm and a deadly weapon. Moreover, he

explained that the gunshot residue test results would only reveal whether the gun

had been fired from the car, not who had fired the gun.

      Angelina Temple, a DPS forensic scientist, testified that she compared the

known DNA sample taken from appellant to the DNA swabs taken from the green

Cadillac. She explained that her analysis showed that appellant could not be

excluded as a contributor of DNA to a majority of the swabs taken from the car,

including the passenger-side door handle.        Although the DNA of another

individual was also present in the car, Temple’s analysis excluded Thomas as a

contributor of the DNA found on the steering wheel. Temple explained that

because “touch DNA” evidence is “notoriously difficult to pin down,” and because

some people leave more DNA than others, the fact that Thomas’ DNA was not

found does not mean that he had not been in the car.




                                         7
       Galveston County Sheriff’s Office Sergeant R. Paulk, who performed

administrative work at the Galveston County Jail, testified that each inmate, when

they are booked into the jail, receives a Telephone Identification Number (“TID”)

and is warned that all calls are monitored and recorded. During Paulk’s testimony,

the trial court admitted into evidence and the jury heard audio recordings of two

telephone calls made from the jail with appellant’s TID. In one of the telephone

calls, the following conversation took place between appellant and an unidentified

man:

       [APPELLANT]:                  Hey, you ain’t ever see [the
                                     complainant] since you’ve been out
                                     there?

       [UNIDENTIFED MAN]:            Who?

       [APPELLANT]:                  [The complainant].

       [UNIDENTIFED MAN]:            Na’ah.

       [APPELLANT]:                  See that’s who you need to get in
                                     touch with and see if [he] will sign an
                                     affidavit and drop the charges. Tell
                                     him we got something for him, we’ll
                                     pay [him] a little something.

       [UNIDENTIFIED MAN]:           For you too?

       [APPELLANT]:                  Huh?

       [UNIDENTIFIED MAN]:           For you?

       [APPELLANT]:                  Yeah, ‘cause he only, he ain’t never
                                     said your name, you know what I’m

                                        8
                                       saying? He never, he said he don’t
                                       know who was driving.

      [UNIDENTIFED MAN]:               Yeah.

      [APPELLANT]:                     So shit. If he drop one, you know
                                       what I’m saying, if he not an active
                                       witness, if they don’t have an active
                                       witness, they can’t really, you know
                                       what I’m saying, proceed in they case.

      [UNIDENTIFIED MAN]:              Yeah.

In the other telephone call, appellant spoke to an unidentified woman. He told her,

“Your boyfriend beat up on Markus Frank today,” and he then identified Frank as

“the [man] I shot at, your boyfriend beat him up.”

                           Sufficiency of the Evidence

      In his fourth issue, appellant argues that the evidence is legally insufficient

to support his convictions because “no rational jury” could have found him guilty

of either offense “beyond a reasonable doubt.” Appellant asserts that a rational

jury could not ignore evidence of “police misconduct and the effective suppression

of evidence” and still find him guilty beyond a reasonable doubt.

      We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the


                                         9
rationality of the trier of fact’s finding of the essential elements of the offense

beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988). We give deference to the responsibility of the fact finder to fairly

resolve conflicts in testimony, weigh evidence, and draw reasonable inferences

from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

However, our duty requires us “to ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused. Id.

      A person commits the offense of deadly conduct by discharge of a firearm

“if he knowingly discharges a firearm at or in the direction of: (1) one or more

individuals; or (2) a habitation, building, or vehicle and is reckless as to whether

the habitation, building, or vehicle is occupied.”       TEX. PENAL CODE ANN.

§ 22.05(b) (Vernon 2011).

      A person who has been convicted of a felony commits the offense of

unlawful possession of a firearm if he possesses a firearm either: (1) after

conviction and before the fifth anniversary of the end of his sentence; or (2) at any

time thereafter from any location other than the premises at which he lives. See

TEX. PENAL CODE ANN. § 46.04(a) (Vernon 2011).

      Appellant first asserts that the record is “replete with compelling objective

evidence” that requires reversal of his convictions. He points to Frank’s testimony



                                         10
that Thomas was driving the green Cadillac, which he asserts is contradicted by

DPS forensic scientist Temple’s testimony that the DNA testing did not identify

Thomas’ DNA in the green Cadillac. However, Temple also testified that because

“touch DNA” evidence is “notoriously difficult to pin down” and some people

leave more DNA than others, the fact that Thomas’ DNA was not found in the car

did not mean that he had not been in the car.

      Appellant next asserts that “the only rational deduction to be drawn” from

CSI Auzston’s “failure to test” the gunshot residue and his alleged dishonesty was

that “the State itself harbored reasonable doubt as to the guilt or innocence of

[appellant] and did not want to undermine its quest for a guilty verdict.” While

Auzston did initially testify that he did not believe that the DPS lab had returned

the results of the gunshot residue taken from the passenger-side door of the green

Cadillac, he later corrected his prior statement and testified that, due to an

oversight, he had not submitted the gunshot residue to DPS for analysis. Auzston

explained that he had mistakenly believed that he had sent the gunshot residue to

the DPS lab in Austin. Auzston’s explanation is not unreasonable, and the jury did

not have to conclude that he was dishonest or “the State itself harbored reasonable

doubt” as to appellant’s guilt.

      Appellant further asserts that the complainant’s testimony regarding

appellant’s attempted “bribe” of the complainant is not credible because of his use



                                         11
of “‘weasel’ words, possibly to stay just north of a perjury charge.” The jury heard

evidence of appellant’s attempted bribe not only from the complainant, but also

from an audio recording of a telephone call that appellant made from the Galveston

County Jail. During the telephone conversation, appellant implies that the man to

whom he is speaking was the driver of the green Cadillac when he fired his gun at

the complainant’s shop and states that the complainant had not identified that man

as the driver. Appellant suggests that the man find the complainant and offer to

pay him money on appellant’s behalf in exchange for signing an affidavit dropping

his allegations.

      More importantly, the jury found overwhelming evidence establishing

appellant’s guilt of the offenses for which he stood trial. The complainant testified

that after he sent appellant away from his shop for fighting with Frank, appellant

returned with a gun, looking for Frank. Although the complainant told appellant

that Frank was gone, appellant insisted he was still at the shop, and when the

complainant asked if he was going to “shoot [up his] shop while [his] little boy”

was there, appellant replied, “Fuck you and your little boy.” And he then began

shooting his gun.

      Frank and Thorne testified that Frank and appellant got into a fight, which

the complainant broke up. Minutes after the complainant made appellant leave his

shop, while Frank and Thorne were driving to Frank’s home, they saw appellant



                                         12
and another man driving appellant’s green Cadillac back in the direction of the

complainant’s shop. While Frank was speaking with the complainant on the

telephone, they heard arguing and gunshots.

      The jury also saw the surveillance-camera videotape recording of appellant

committing the offenses. The tape recording shows appellant’s green Cadillac in

front of the complainant’s shop and an arm reaching out the passenger-side

window pointing a gun toward the complainant’s shop. The green Cadillac then

drives away. Although the complainant cannot be seen on the tape recording, it

shows the customer, who was holding the complainant’s son at the time, run into

the shop after the shots were fired.

      The State also presented evidence that LMPD officers found “rounds,” or

spent bullets, at the complainant’s shop. Officers found bullet holes in the shop’s

door, the side of the complainant’s building, and in the taillight of a customer’s car.

The jury saw photographs of the bullet holes and the damage done by the bullet

found in the car’s taillight. CSI Auzston testified that no matter what type of

handgun had been used in the shooting, it was a firearm and a deadly weapon.

      Finally, the State produced evidence establishing appellant’s prior felony

conviction in 2011 for possession of a controlled substance. 3 The trial court


3
      See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 2010). Appellant
      was convicted in State of Texas v. Lawrence Reed, No. 11CR0071 (56th District
      Court, Galveston County, Texas).


                                          13
admitted into evidence the judgment, which showed that the instant offenses

occurred before the fifth anniversary of his previous conviction. See TEX. PENAL

CODE ANN. § 46.04(a)(1).

      Jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given a witness’s testimony. Jaggers v. State, 125 S.W.3d

661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). And they may choose

to believe or disbelieve any part of a witness’s testimony. See Davis v. State, 177

S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “Likewise,

‘reconciliation of conflicts in the evidence is within the exclusive province of the

jury.’” Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (quoting Losada

v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)).

      As the fact finder, the jury was entitled to resolve conflicts in the testimony

in favor of the complainant, and we defer to that resolution. Williams, 235 S.W.3d

at 750. Viewing the evidence in the light most favorable to the jury’s findings, we

conclude that a rational trier of fact could have reasonably found that appellant

discharged a firearm in the direction of one or more individuals or a building and

was reckless with regard to whether the building was occupied. It also could have

reasonably found that appellant possessed a firearm less than five years after the

anniversary of the expiration of his sentence for a felony conviction. Accordingly,

we hold that the evidence is legally sufficient to support his convictions.



                                          14
      We overrule appellant’s fourth issue.

                            Constitutional Challenge

      In his first two issues, appellant argues that the trial court denied him due

process of law because it allowed CSI Auzston to “offer[] false testimony” about

the failure to test the gunshot residue taken from his car. See U.S. CONST. amend.

XIV, § 1; TEX. CONST. art. 1, § 19.      Appellant asserts that although Auzston

testified that he did not believe that he had received gunshot residue test results

back from the DPS lab, he had actually “concealed” the evidence. Appellant

further asserts that the State failed to preserve, or it “suppressed” or “concealed,”

evidence that was “potentially exculpatory.” 4 He complains that the State acted in

bad faith by suborning “perjury,” tampering with evidence, and not correcting

“known false evidence.”

      In response, the State argues that appellant has not preserved this complaint

for appellate review because he did not object to the State’s failure to have the

gunshot residue timely analyzed or tested. Appellant argues that no objection was

required to preserve this error because it is a “non-waivable” error that constitutes

“egregious harm,” such that he did not receive a fair and impartial trial. See Marin

v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). And appellant asserts that

the Texas Constitution provides “significantly greater protection than the federal
4
      Appellant acknowledges that “this case does not fit” the “mold” of Brady v.
      Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).


                                         15
constitution in cases regarding the failure of the State to conduct tests on

potentially exculpatory evidence.”

      Here, appellant did not challenge the State’s failure to submit the gunshot

residue for testing on any constitutional grounds, state or federal, during trial. Nor

did appellant raise the argument to the trial court that the Texas Constitution

provides greater protection than the Due Process Clause of the Fourteenth

Amendment. To preserve error for appellate review, appellant was required to

make a timely request, objection, or motion to the trial court stating the grounds for

the ruling sought with sufficient specificity to make the trial court aware of his

complaint. See TEX. R. APP. P. 33.1(a)(1); see also Saldano v. State, 70 S.W.3d

873, 887 (Tex. Crim. App. 2002) (stating that all but most fundamental rights may

be forfeited if not objected to at trial). This is true even though the error of which

appellant now complains on appeal concerns his constitutional rights. Saldano, 70

S.W.3d at 889; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). A

defendant may waive his right to due process by failing to object at trial. Briggs,

789 S.W.2d at 924. Further, appellant was required to raise his argument in the

trial court that the Texas Constitution provides greater protection than the Due

Process Clause. See Pena v. State, 285 S.W.3d 459, 461, 464 (Tex. Crim. App.

2009) (concluding waiver of argument that Texas Constitution provides greater

protection than Due Process Clause). We further note that appellant neither sought



                                         16
a continuance, nor moved for testing of the gunshot residue. Accordingly, we hold

that appellant has not preserved his complaint that the State’s failure to test the

gunshot residue violates his due process rights.

      We overrule appellant’s first and second issues.

                                  Admission of Evidence

      In his third issue, appellant argues that the trial court erred in admitting into

evidence the audio recordings of the two telephone calls that he made from the

Galveston County Jail because the evidence suggested to the jury both “emotional

and irrational” reasons to convict him, and the trial court failed to conduct the

proper balancing test. 5 See TEX. R. EVID. 403.

      We review a trial court’s admission of evidence for an abuse of discretion.

Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses

its discretion if it acts arbitrarily or unreasonably, without reference to any guiding

rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). When considering a trial court’s decision to admit or exclude evidence, we

will not reverse the trial court’s ruling unless it falls outside the “‘zone of

5
      Although appellant asserts that the trial court did not consider the appropriate
      factors when conducting the rule 403 balancing test, the record reveals that the
      trial court allowed appellant to articulate at length his objections to the audio
      recordings on the grounds of relevancy and rule 403. Appellant complained of the
      prejudicial nature of the two audio recordings separately, and the trial court ruled
      on the recordings separately. The trial court also allowed appellant ample
      opportunity to argue why he considered the audio recordings prejudicial and thus,
      should be excluded.


                                           17
reasonable disagreement.’” Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim.

App. 2003) (quoting Montgomery, 810 S.W.3d at 391).

      Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. The opponent

of the evidence must demonstrate that the negative attributes of the evidence

substantially outweigh any probative value. Montgomery, 810 S.W.2d at 377. A

rule 403 analysis requires a court to balance (1) the probative force of the proffered

item of evidence along with (2) the proponent’s need for that evidence against (3)

any tendency of the evidence to suggest a decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5)

any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006).

      The first factor focuses on “how strongly the evidence serves to make more

or less probable the existence of a fact of consequence to the litigation—coupled

with the proponent’s need” for the evidence. Id. at 641; State v. Mechler, 153

S.W.3d 435, 440 (Tex. Crim. App. 2005). The statements made during appellant’s

telephone conversations demonstrate that it is more probable that appellant was



                                         18
involved in the shooting at the complainant’s shop. During the first telephone call,

appellant suggests that the unidentified man to whom he is speaking find the

complainant and offer him money on appellant’s behalf so that he will drop the

allegations. Appellant discusses the unidentified man’s role in the incident, and he

points out that the complainant had only identified appellant as the shooter, but had

not yet identified the man as the driver of the green Cadillac. This evidence

corroborates the complainant’s testimony that appellant attempted to bribe him to

not testify at trial. During the second telephone call, appellant tells the woman that

her “boyfriend beat up” Frank, who was the person appellant shot. Thus, the first

factor weighs in favor of admissibility.

      The second factor includes a consideration of “whether the proponent has

other evidence establishing th[e] fact and whether th[e] fact is related to a disputed

issue.” Mechler, 153 S.W.3d at 441. The evidence presented to the jury by the

telephone calls serves to corroborate the complainant’s testimony that appellant

was the shooter. The complainant was the only witness to specifically identify

appellant as having the handgun and firing that weapon at him and the area around

him. Although the State had the complainant’s testimony, the recorded telephone

conversations constituted the only direct admission by appellant that he “shot at”

someone, thereby showing that he was in possession of the handgun. Thus, the

second factor weighs in favor of admissibility.



                                           19
      The third factor, concerning undue prejudice, focuses on whether the

evidence has the potential to impress the jury in some irrational but indelible way.

Id. at 440. Rule 403 does not exclude all prejudicial evidence, only that which is

“unfairly” prejudicial. Id. at 440–41. “Unfair prejudice” refers to the tendency of

relevant evidence “to tempt the jury into finding guilt on grounds apart from proof

of the offense charged.”     Id. at 440.        The contents of appellant’s telephone

conversations are relevant and probative of whether he possessed a handgun and

fired it at the complainant’s shop. This evidence was not unfairly prejudicial

because it directly relates to the offenses of which appellant stood accused. See id.

at 440–41. Thus, the third factor weighs in favor of admissibility.

      The fourth and fifth factors focus on the tendency of the evidence to confuse

the jury, distract it from the main issues, or be given undue weight by the jury.

Although the contents of the first telephone call arguably suggest that appellant

was attempting to coordinate another crime by bribing a witness, both of

appellant’s telephone conversations directly concern the offenses of which

appellant stood accused. This evidence could not have distracted the jury away

from the instant offenses of unlawful possession of a firearm by a felon and deadly

conduct. 6 In the first telephone conversation, appellant proposes an attempt to


6
      Although appellant was indicted for the offense of aggravated assault with a
      deadly weapon, the jury found him guilty of the lesser-included offense of deadly
      conduct.


                                           20
“bribe” the complainant, the State’s primary witness, to prevent him from

testifying against appellant because he was the only “active witness.” In the

second telephone conversation, appellant admits that Frank had been assaulted and

Frank was the man that appellant wanted to shoot. The complainant testified that

appellant insisted that Frank was at the shop when appellant returned and fired his

handgun at the complainant and his building. The fourth and fifth factors weigh in

favor of admissibility.

      Finally, the sixth factor concerns the efficiency of the trial court proceeding

and focuses on whether the evidence resulted in undue delay or the presentation of

cumulative evidence.      Gigliobianco, 210 S.W.3d at 641.       The State offered

Sergeant Paulk’s testimony concerning the unique TID given to Galveston County

Jail inmates, and he identified the pertinent telephone calls as having been placed

by appellant.   Paulk further explained that jail inmates are warned that their

telephone calls will be monitored and recorded, and his testimony comprises only

nine pages of the reporter’s record. The State played less than ten minutes of the

audio recording of the first telephone call and only thirty-three seconds of the

audio recording of the second telephone call. Thus, the sixth factor weighs in

favor of admissibility.

      The trial court could have reasonably concluded that the probative value of

the contents of appellant’s two telephone conversations placed from the Galveston



                                         21
County Jail was not substantially outweighed by the countervailing factors

specified in rule 403. We cannot conclude, given the deference we must apply in

reviewing a trial court’s rule 403 determination, that the trial court abused its

discretion in admitting the pertinent portions of appellant’s two telephone

conversations. See id. at 642; Mechler, 153 S.W.3d at 442. Accordingly, we hold

that the trial court did not err in admitting into evidence the complained of audio

recordings of appellant’s two telephone calls.

      We overrule appellant’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




                                           22
