      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00539-CR



                                  Christopher Harris, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-15-301782, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING1



                                            OPINION


                A jury convicted Christopher Harris of the first-degree felony offense of murder and

assessed punishment at life imprisonment. See Tex. Penal Code §§ 12.32(a), 19.02(b)(1), (c). The

district court rendered judgment consistent with the jury’s verdict. In three issues on appeal, Harris

contends that the district court abused its discretion by: (1) overruling his challenge for cause against

one venire member and declining to grant Harris an extra peremptory challenge to strike another

venire member; (2) overruling his objection to the admission of extraneous bad act evidence and

preventing him from introducing evidence that the bad act had been “no-billed” by a grand jury; and

(3) overruling his objections to punishment-phase testimony from the complainant of the bad act.

We will affirm the district court’s judgment of conviction.




        1
         Judge Brenda Kennedy presided over voir dire and the punishment phase of trial and signed
the judgment of conviction. Judge Wilford Flowers presided over the guilt-innocence phase of trial.
                                          BACKGROUND2

                A jury convicted Harris of murdering Byron James Roberson in an early-morning

attack at Roberson’s house. The medical examiner determined that Roberson sustained twenty-four

stab wounds, eleven of those to his neck and head. Harris was one of several people living in

Roberson’s house at the time. The jury heard testimony from others who were in the house when

the murder occurred—Roberson’s adult son Diamond Roberson,3 Delphia “Liz” White, Harris, and

Diamond’s friend Rashard Rogers.

                Harris testified that he had been renting the living room of Roberson’s house for a

few months and planned to stay there temporarily. In the hours before Roberson’s death, Harris

stated that he came home from work and relaxed in the living room, smoking marijuana, using

cocaine, playing video games, and watching television. Harris stated that two friends came to visit

him but both left the house before midnight. Harris also recalled that Rogers came to visit Diamond.

                Harris testified that later that evening, another friend of Diamond’s and a man that

Harris did not know came to the front door asking for Diamond. Harris closed the door and called

Diamond, who came downstairs and opened the door but saw no one. Harris suggested that

Diamond check the back door. Diamond opened the back door, looked left and right, saw no one,

closed the door, and headed back toward the stairs.




       2
           The facts are summarized from the testimony and exhibits admitted into evidence at trial.
       3
           For clarity, we refer to the victim’s son by his first name.

                                                   2
                Harris then stated that he watched “in shock” as an unknown assailant4—who looked

like Harris, was about his height, and had similar dreadlocks—appeared behind Diamond and

stabbed him in the neck with a knife. According to Harris, the assailant ran past him and up the

stairs, where the assailant stabbed Rogers and Roberson. Harris testified that he also went upstairs,

opened the door to Roberson’s bedroom, and saw the assailant stabbing Roberson. Harris stated that

Roberson ran toward the bedroom door as the assailant was chasing and stabbing him from behind,

and that Roberson yelled for White to call 911. Harris said that his left hand took one of the stabs

intended for Roberson as the assailant ran past him. Harris recalled that when the assailant was

distracted by “someone else over to the right,” Roberson ran downstairs. Harris heard a commotion

in the hallway near the bedrooms and Rogers yelling. Harris then saw Rogers running downstairs

with the assailant following him out the front door.

                Harris testified that he went to the kitchen looking for a towel for his bleeding hand,

then went outside and saw the assailant attacking Roberson a few houses away. Harris also saw

Roberson fall. Harris testified that he chased the assailant down the street, around a corner, and over

a fence into a backyard. There the assailant stabbed Harris’s right hand and leg and then jumped

over the fence. Harris said, “as far as [he] can remember,” he pulled the knife out of his own leg and

“blacked out.” When he awoke, he walked through the gate to the police, in the direction of their

vehicles’ flashing lights. Harris was no longer wearing his shorts, t-shirt, or shoes, but he testified

that he did not remember removing his clothing. He did not tell police about the assailant’s attacks

on him, on the others at the house, or on Roberson down the street. Harris acknowledged that he


       4
           This was not one of the men that Harris said he had seen earlier at the front door.

                                                  3
never: yelled for help, tried to assist Roberson or Diamond, checked on White, or called 911. Harris

denied killing Roberson. He also denied attacking Roberson, Diamond, and Rogers.

               Diamond and Rogers each testified that they were “positive” Harris stabbed them.

They also stated that Harris’s attacks on them were unprovoked. Diamond testified that Harris

attacked him from behind, stabbing him in the neck. Diamond fell to the kitchen floor, and Harris

stabbed him again in the back of the neck before running upstairs. Diamond was able to get upstairs

and yell to the others to keep their doors closed because Harris was stabbing people. Diamond stated

that he collapsed at the top of the stairs and lost consciousness because of his blood loss.

               Rogers testified that he heard Diamond yelling not to come out of the room, but he

did anyway, and he saw Diamond at the top of the stairs with his neck cut open. Rogers went to

Roberson’s bedroom where he saw a figure with long dreadlocks that appeared to be Harris, who

had his arm at an angle holding something. Harris then “ran up on” Rogers saying, “I’m going to

kill all of you all,” and stabbed Rogers with a knife. Rogers sustained stab wounds to his cheek and

the back of his head. He ran out the front door with Harris in pursuit. Rogers began knocking on

doors for help. He testified that he passed out on the front porch of a house due to his blood loss.

               One of Roberson’s neighbors testified that he woke to the sound of his doorbell

ringing repeatedly at about 1:00 a.m. He opened the front door, heard a commotion in the driveway,

and saw blood on his front porch. He closed the door and asked his wife to call 911. Looking out

a window toward his front yard, he saw a larger man attacking another. The neighbor “saw a man

go down,” and the attacker ran away. The neighbor found Roberson’s body in the front yard.

Several hours later, the neighbor saw a man walking toward police. He recognized the man’s



                                                  4
physical appearance as resembling the man who had run from his front yard earlier that night and

whom he had seen making “stabbing motions” with the victim (later identified as Roberson).

               Police recovered Harris’s bloodstained t-shirt, shorts, shoes, and a knife from another

neighbor’s backyard. Roberson could not be excluded as a contributor of the DNA detected in the

bloodstains on the front of Harris’s shoe. Harris and Roberson could not be excluded as contributors

of the DNA detected in the bloodstains on Harris’s t-shirt and on the handle and blade of the knife.

Police testified that hours after they began their investigation, Harris walked up seeking help for the

wounds to his hands. He was dressed only in underwear and socks. One of the officers at the scene

recorded her conversation with Harris, including her asking him how he got the cuts on his hands.

Harris replied, “I remember [indistinct] this one with Diamond and this one with Byron.”

               The jury heard evidence, over Harris’s objection, that Harris had committed a prior

bad act by attacking Jaime Sifuentez with a box cutter. This evidence was introduced to challenge

testimony from Harris’s mother that Harris was not a confrontational person and was “usually very

peaceful.” Harris sought to introduce evidence that the Sifuentez incident was “no-billed” by a

grand jury, but the district court sustained the State’s objection and excluded that evidence. At the

conclusion of the guilt-innocence phase of trial, the jury found Harris guilty of murder and found

that he used a deadly weapon in committing the offense. During punishment, the State called

Sifuentez, who testified about the prior bad act over Harris’s objection that Sifuentez was not on the

State’s witness list. The jury assessed Harris’s punishment at life imprisonment, and the court

rendered judgment on the jury’s verdict. Harris filed a motion for new trial that was overruled by

operation of law. This appeal followed.



                                                  5
                                              DISCUSSION

Jury selection

                 In his first issue, Harris contends that the district court erred by overruling his challenge

for cause against venireperson number 28 and by declining to grant him an extra peremptory

challenge to strike venireperson number 51. To preserve a complaint about the trial court’s denial

of a challenge for cause, a party must show that he: (1) used all of his peremptory strikes; (2) asked

for and was refused additional peremptory strikes; and (3) was then forced to take an identified,

objectionable juror whom the party would not have otherwise accepted had the trial court granted

his challenge for cause (or had the trial court granted him an additional peremptory challenge to

strike the juror). Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016). Additionally, a party

must show that it made the trial court aware of that complaint “at a time and in a manner so that it

can be corrected.” Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004); Redfearn v. State,

No. 2-09-270-CR, 2010 Tex. App. LEXIS 7018, at *4 (Tex. App.—Fort Worth Aug. 26, 2010, pet.

ref’d) (mem. op., not designated for publication).

                 Here however, Harris did not complain until after he had already exercised his

peremptory challenges and provided his strike list to the clerk, the clerk had called the members of

the jury and the jury was seated, and the court had excused the rest of the venire. See Tex. Code

Crim. Proc. arts. 35.25 (requiring parties in noncapital-felony cases, and in capital cases where

death penalty is not sought, to strike from clerk’s list names of jurors that party wants to challenge

peremptorily), 35.26(a) (requiring parties to deliver their lists to clerk, who will call names of first

twelve not struck, which “shall be the jury” in district court); McBean v. State, 167 S.W.3d 334, 337-



                                                      6
38 (Tex. App.—Amarillo 2004, pet. ref’d) (concluding, on similar facts, that party failed to preserve

any error in court’s denial of party’s challenge for cause). Harris’s complaint about the effect of the

denial of the challenge for cause and his request for an additional peremptory challenge—made only

after the jury had been seated and the rest of the venire had been excused—was untimely. See Tex.

Code Crim. Proc. arts. 35.25, 35.26(a) (requiring parties to deliver their lists to clerk, who will call

names of first twelve not struck, which “shall be the jury” in district court); McBean, 167 S.W.3d 334,

338 n.3 (“Nor does it seem to us such process would accord fair treatment to the opposing party who

must exercise peremptory challenges without benefit of knowing which venire members will be on

the jury.”), 339; see also Leach v. State, No. 01-04-00903-CR, 2008 Tex. App. LEXIS 6684, at *23

(Tex. App.—Houston [1st Dist.] Sept. 4, 2008, no pet.) (mem. op., not designated for publication).

                Accordingly, Harris failed to preserve his complaint about the court’s rulings as to

his challenge for cause and his request for an additional peremptory challenge. See Tex. R. App.

P. 33.1(a)(1); McBean, 167 S.W.3d at 339; see also Redfearn, 2010 Tex. App. LEXIS 7018, at *7-8;

Leach, 2008 Tex. App. LEXIS 6684, at *24. We overrule Harris’s first issue.


Evidence concerning extraneous bad act

                In his second issue, Harris makes two complaints: first, that the district court erred

by overruling his objection to the admission of extraneous bad act evidence; and second, by

preventing him from introducing evidence that the bad act had been “no-billed” by a grand jury. Use

of evidence concerning a person’s extraneous bad acts is set forth in Texas Rule of Evidence 404(b),

which provides that




                                                   7
       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident, provided that upon
       timely request by the accused in a criminal case, reasonable notice is given in
       advance of trial of intent to introduce in the State’s case-in-chief such evidence other
       than that arising in the same transaction.


Tex. R. Evid. 404(b). We review a trial court’s ruling on the admissibility of Rule 404(b) evidence

under an abuse-of-discretion standard. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App.

2016). The trial court does not abuse its discretion unless its determination lies outside the zone

of reasonable disagreement. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); see

Dabney, 492 S.W.3d at 318.

                 Before trial, the State provided notice of its intent to present the jury with evidence

about an extraneous bad act. See Tex. R. Evid. 404(b). During the guilt-innocence phase of trial,

Harris’s mother Laura Zavala testified on direct examination for the defense that Harris is not a

confrontational person and that he “is usually very peaceful.” After a hearing outside the presence

of the jury, the district court allowed the State to ask Zavala whether she was aware that Harris

attacked a person named Jaime Sifuentez with a box cutter and whether having that information

would change her opinion of Harris:


       Prosecutor:              Good morning. On direct examination you testified that you
                                had the opinion that your son Christopher Harris had the
                                character of peacefulness; is that correct?

       Zavala:                  Yes.

       Prosecutor:              And you also testified that you were of the opinion that he
                                was non-confrontational?

                                                   8
       Zavala:               Yes.

       Prosecutor:           Are you aware of the fact that your son Christopher Harris
                             attacked a Jaime Sifuentez on October 24, 2014, with a box
                             cutter?

       Zavala:               No.

       Prosecutor:           If you were to learn that he—your son Christopher Harris
                             attacked Jaime Sifuentez with a box cutter on October 24,
                             2014, would that change your opinion that your son is a
                             peaceful person?

       Zavala:               No.

       Prosecutor:           And if you had that information that he attacked Jaime
                             Sifuentez with a box cutter, would that change your opinion
                             that he is a non-confrontational person?

       Zavala:               No.

       Prosecutor:           Pass the witness, Your Honor.


On redirect, Zavala acknowledged knowing that Harris had been charged in that incident:


       Defense counsel:      Ms. Zavala, the case that the State is referring to, you’re
                             aware that that case was presented to a grand jury and the
                             grand jury—

       Prosecutor:           Objection, Your Honor.

       The Court:            Sustained.

       ....

       Defense counsel:      Were you aware that Chris was charged in that incident?

       Zavala:               Yes.




                                               9
        Defense counsel:         And what was your understanding as to the end result of that
                                 charge?

        Prosecutor:              Objection.

        The Court:               Sustained.


The court’s charge at the conclusion of the guilt-innocence phase of trial provided the following

instruction to the jury about Zavala’s testimony:


        You are instructed that if there is evidence before you to the effect that Laura Zavala,
        a witness for the defendant, had heard about other offenses on the part of the
        defendant, if any, then such evidence may only be considered by you if you consider
        it at all for the purpose of testing, if it does, the knowledge of Laura Zavala as to the
        defendant’s reputation and the weight to be given to their testimony, and you must
        not consider such evidence for any other purpose.


                1. Admission of extraneous bad act evidence

                Harris contends that the district court erred by overruling his objection to the

admission of extraneous bad act evidence involving Sifuentez. Under Rules 404 and 405 of the

Texas Rules of Evidence, if the defendant offers evidence of his good character, the prosecution can

introduce its own character evidence to rebut the implications of the defendant’s character evidence.

Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim. App. 2007); Wilson v. State, 71 S.W.3d 346, 350

(Tex. Crim. App. 2002); see Tex. R. Evid. 404(a)(2)(A) (providing that “[i]n a criminal case, a

defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted,

the prosecution may offer evidence to rebut it”), 405(a)(2)(B) (providing that “[w]hen a person’s

character or character trait is an essential element of a charge, claim, or defense, the character or trait

may also be proved by relevant specific instances of the person’s conduct”). “The purpose of

                                                    10
permitting [character witness] cross-examination is not to discredit the person whose character is in

issue, but rather to discredit the testimony of the character witness.” Harrison, 241 S.W.3d at 25.

Cross-examination rebuttal evidence may be elicited in the form of “have you heard” or “were you

aware” questions about specific instances of conduct inconsistent with the character trait brought

into issue. Id. Here, Harris has not shown that the district court abused its discretion by overruling

his objection to the State asking Zavala—after she testified that Harris was not a confrontational

person and that he “is usually very peaceful”—whether she was aware that he attacked Sifuentez.

See id. at 27 (concluding that trial court did not abuse its discretion by allowing prosecution to rebut

character evidence—introduced by defense witness who testified that defendant was “good” and

“sweet” person—with evidence of defendant’s prior assault convictions and citations); see also

Gonzalez, 544 S.W.3d at 370.

               However, even when evidence of an extraneous bad act is admissible under Rules 404

and 405, it may be excluded as unfairly prejudicial under Rule 403. During a hearing outside the

presence of the jury, Harris objected that allowing the State to question Zavala about the extraneous

bad act would violate Rule 403 “because of similar accusations in that case to this one,” which would

be “unduly prejudicial to the jury and would influence the jury in the incorrect manner.”

               Texas Rule of Evidence 403 provides that even relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of

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

cumulative evidence. See Tex. R. Evid. 403. When conducting a Rule 403 analysis, the trial court

must balance: (1) the inherent probative force of the proffered item of evidence along with (2) the



                                                  11
proponent’s need for that evidence against (3) any tendency of the evidence to suggest 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). These factors may blend

together in practice. Id. at 642.

               Here, Zavala offered the jury her opinion that Harris was a peaceful and non-

confrontational person. The jury had heard similar testimony from White, although she admitted

that she did not know him well. The district court could have concluded that the State needed to ask

Zavala whether she was aware of the incident involving Sifuentez to test how well she knew him and

the credibility of her opinion if she knew about conduct inconsistent with the traits about which she

testified. See Wilson, 71 S.W.3d at 350 n.4. The district court’s limiting instruction in the charge

about Zavala’s testimony minimized any risk that the jury would consider the substance of her

questioning for any improper purpose or give it undue weight. See Taylor v. State, 332 S.W.3d 483,

492 (Tex. Crim. App. 2011) (noting that jury is presumed to have understood and followed trial

court’s jury-charge instructions absent evidence to the contrary); Lane v. State, 933 S.W.2d 504, 520

(Tex. Crim. App. 1996) (noting that impermissible inference of character conformity can be

minimized through limiting instruction). The incident Zavala was asked about was not confusing

or technical in nature and would not tend to mislead the jury, which weighs in favor of admission

of the evidence. See Gigliobianco, 210 S.W.3d at 641 (noting that scientific evidence is of type that



                                                 12
“might mislead a jury that is not properly equipped to judge the probative force of the evidence”).

To the extent Harris complains that the jury was misled about criminal charges resulting from the

Sifuentez incident, we note that the defense—and not the State—was the source of that information

during Zavala’s questioning on redirect. Finally, the court could have reasonably determined, based

on the hearing outside the presence of the jury before Zavala testified, that the State’s questioning

of Zavala about the Sifuentez incident would not consume an inordinate amount of time and would

not be repetitive of evidence already admitted. In fact, the jury heard only three questions about the

Sifuentez incident during the State’s cross-examination. Accordingly, Harris has not shown that the

district court abused its discretion by implicitly determining that the balance of the Rule 403 factors

favored allowing the State’s questioning of Zavala about the extraneous bad act. See id. at 641-42.


                2. Exclusion of evidence of no-bill

                Within his second issue, Harris also complains that the district court abused its

discretion by excluding evidence that a grand jury had “no-billed” him as to the Sifuentez assault.

Harris contends that because the assault resulted in a no-bill, the assault did not qualify for admission

as an extraneous bad act under Rule 404(b). He further contends that allowing evidence of that

assault—without also admitting evidence of the no-bill—violated Rule 403 because its probative

value was greatly outweighed by its potential prejudice and gave the jury the misimpression that

Harris had been charged with an offense for stabbing Sifuentez with a boxcutter.

                A grand jury has the duty to determine whether evidence exists to formally charge

a person with an offense. See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). A no-bill

from a grand jury is merely a finding that the specific evidence brought before that particular grand

                                                   13
jury did not convince them to formally charge the accused with the offense alleged. Id.; see Elam

v. State, 47 S.W.2d 279, 279-80 (Tex. Crim. App. 1932) (concluding that admission of grand jury’s

no-bill for prior altercation between victim and defendant improperly presented jury with grand

jury’s opinion as to merits of disputed issue, i.e., whether defendant was aggressor and acted in

self-defense).

                 Furthermore, there was no need to correct a “misimpression” about the assault when

as here, the State was not attempting to prove to the jury that Harris committed the extraneous bad

act, but only testing the weight of character testimony from Zavala. See Wilson, 71 S.W.3d at 351

& nn.5-6 (citing commentary to Federal Rule of Evidence 405(a)—which is nearly identical to Texas

Rule of Evidence 405(a)—and noting that because purpose of State’s questions was to test witness’s

familiarity with defendant, “not only was the State not required to prove to the jury that the acts

actually occurred, but it would have been improper for the State to attempt to do so”); Drone v. State,

906 S.W.2d 608, 616 (Tex. App.—Austin 1995, pet. ref’d) (noting State’s questioning of defense

witness about defendant’s involvement in prior stabbing and assault was not attempt to prove his

guilt of such unadjudicated offenses but to test weight of character testimony from defense witness).

Accordingly, Harris has not shown that the district court’s ruling excluding evidence of the no-bill

was outside the zone of reasonable disagreement. See Gonzalez, 544 S.W.3d at 370.

                 Even if we were to assume that the court erred by excluding evidence that a grand jury

had “no-billed” Harris for the Sifuentez assault, Harris has not demonstrated harm requiring reversal.

See Tex. R. App. P. 44.2(b) (providing that nonconstitutional error that does not affect substantial

rights must be disregarded); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014) (“A



                                                  14
substantial right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.”). In determining the likelihood that an error adversely affected a

jury’s decision, we consider everything in the record. Schmutz, 440 S.W.3d at 39. Significant factors

include the nature of the evidence supporting the verdict, the character of the alleged error, and how

it might be considered in connection with other evidence in the case, and may include whether the

State emphasized the error and whether there was overwhelming evidence of guilt. Id.

               Here, the State’s questioning of Zavala did not result in the admission of substantive

evidence regarding the Sifuentez incident, and after Zavala denied awareness of that incident, the

State did not refer to it again during the guilt-innocence phase. The jury had strong proof of Harris’s

guilt in this case, including testimony from Diamond, Rogers, and the neighbor who witnessed

Roberson’s attack, as well as corroborating DNA evidence on Harris’s bloodstained shoe, t-shirt,

and the handle and blade of the knife. Thus, if there were any error in the court’s evidentiary ruling

because of a misimpression from the exclusion of Harris’s no bill, considering everything in this

record, it is unlikely that the jury’s decision was adversely affected by such error. See id. We

overrule Harris’s second issue.


Punishment-phase testimony from person not on State’s witness list

               In his third issue, Harris contends that the district court erred by overruling his

objection to punishment-phase testimony from Sifuentez, who was not on the State’s witness list.

Harris asserts that Sifuentez gave unfairly prejudicial testimony and that the State’s nondisclosure

of Sifuentez as a witness prevented Harris from adequately preparing for sentencing. We review a

trial court’s decision to allow testimony from a person who is not on the State’s witness list under

                                                  15
an abuse-of-discretion standard. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000);

Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981); Rainey v. State, 949 S.W.2d 537,

544 (Tex. App.—Austin 1997, pet. ref’d). When a trial court allows testimony from a witness who

does not appear on the State’s witness list, we consider whether the prosecutor’s actions constituted

bad faith and whether the defendant could have reasonably anticipated that the witness would

have testified despite the lack of notice. Wood, 18 S.W.3d at 649; Hightower, 629 S.W.2d at 925;

Rainey, 949 S.W.2d at 544.


                1. Reasonable anticipation that Sifuentez would testify during punishment

                Here, Harris does not contend that the State acted in bad faith; rather, he contends

that he “had no way of knowing that Mr. Sifuentez would testify at trial.” We disagree. As Harris

acknowledges (and conceded at trial), the State: (1) gave notice of its intention to introduce evidence

of the prior assault against Sifuentez; (2) provided Harris with an offense report identifying Sifuentez

as the complainant in that assault; and (3) provided Harris with Sifuentez’s criminal history in

response to Harris’s “Motion for Discovery of the Arrest and Conviction Records of State’s

Witnesses.” Under these circumstances, Harris could have reasonably anticipated that the State

would call Sifuentez as a witness. See, e.g., Lemasurier v. State, 91 S.W.3d 897, 900-01 (Tex.

App.—Fort Worth 2002, pet. ref’d) (concluding that counsel should have reasonably anticipated

witness’s testimony when witness’s report had been part of prosecution’s file and counsel was

aware of report through his own review of that file); see also Fox v. State, No. 04-15-00618-CR,

2017 Tex. App. LEXIS 150, at *7 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not

designated for publication) (concluding that defendant could have reasonably anticipated that State

                                                  16
would call individuals listed in offense report provided to defense in discovery); Garcia v. State,

No. 04-00-00005-CR, 2001 Tex. App. LEXIS 808, at *3 (Tex. App.—San Antonio Feb. 7, 2001, no

pet.) (not designated for publication) (concluding that because State provided prior notice of its

intention to introduce evidence of extraneous offense, defendant could have reasonably anticipated

that State would call witness to that extraneous offense despite being omitted from State’s witness list).


                2. Sifuentez’s testimony during punishment was not unfairly prejudicial

                Within his third issue, Harris also contends that the district court erred by overruling

his objection to Sifuentez’s testimony during punishment about the extraneous bad act because it

was “unduly prejudicial” and a violation of Rule 403.

                Article 37.07 of the Texas Code of Criminal Procedure authorizes consideration of

several factors during punishment, including a defendant’s prior criminal record, the circumstances

of the offense for which he is being tried, his general reputation, and his character. Tex. Code Crim.

Proc. art. 37.07, § 3(a)(1); see Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (noting

that “[t]he Legislature has expressly provided that ‘relevant’ punishment evidence includes, but is

not limited to, both character evidence in the form of opinion testimony as well as extraneous-offense

evidence”). As this Court has noted, some extraneous offense evidence admissible under article

37.07, section 3(a) may be subject to a Rule 403 objection. Smith v. State, 899 S.W.2d 31, 34 (Tex.

App.—Austin 1995, pet. ref’d) (“The legislature has determined that unadjudicated offense evidence

may be considered in assessing punishment. In a particular case, such evidence may be excluded

under rule 403 if, under the circumstances of that case, the relevance of the evidence to the

punishment decision is outweighed by other considerations arguing against its admission.”). A

                                                   17
Rule 403 analysis requires balancing: (1) the inherent 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 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, 210 S.W.3d at 641-42.

               Here, the charged offense and the extraneous bad act, which occurred less than ten

months apart, were similar in several ways—the victims sustained cuts to areas of the neck and

head, made with a type of knife, while in close proximity to their attacker, and seemingly without

provocation. Thus, the extraneous bad act had probative value because it showed Harris’s pattern

of conduct. Given that the extraneous bad act established a pattern of conduct, and that a defendant’s

character and criminal history are legitimate concerns in sentencing, consideration by a jury of the

extraneous bad act would not suggest decision on an improper basis or distract from the main issue.

Further, given the high probative value of this evidence and the broad punishment range, the State’s

need for this evidence was high. The district court’s limiting instruction in the charge minimized

any risk that the jury would have considered the extraneous bad act for an improper purpose or given

it undue weight.5 See Taylor, 332 S.W.3d at 492 (noting presumption that jury understood and


       5
           This portion of the charge stated, “You are instructed that if there is testimony before you
in this case regarding [Harris] having committed other acts or participated in other transactions other
than the offense alleged against him in the indictment in this case, that you cannot consider such
other acts or transactions, if any, unless you first find and believe beyond a reasonable doubt that
[Harris] committed such acts or participated in such transactions, if any, but if you do not so believe
or if you have a reasonable doubt thereof, you will not consider such testimony for any purpose.”

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followed trial court’s jury-charge instructions); Lane, 933 S.W.2d at 520 (noting that limiting

instruction can minimize impermissible inference of character conformity). Evidence about the

extraneous bad act was not confusing or technical in nature and would not tend to mislead the jury.

Moreover, the district court could have reasonably determined that the presentation of evidence

about the extraneous bad act would not consume an inordinate amount of time and was not merely

duplicative or prolonged such that it impacted the “efficiency of the trial proceeding.” Gigliobianco,

210 S.W.3d at 641. Accordingly, the district court did not abuse its discretion in determining that

the probative value of the extraneous bad act evidence outweighed any unfairly prejudicial effect.

See id. at 641-42; see also Tex. Code Crim. Proc. art.37.07, § 3(a)(1).


               3. Ability to adequately prepare for sentencing

               Also within his third issue, Harris contends that because Sifuentez was allowed

to testify, he was unable to adequately prepare for sentencing. Specifically, Harris informed the

court during punishment that the defense “would call several witnesses to show that this particular

offense was no-billed because there was a self-defense claim that was presented and the grand jury

found that there was insufficient evidence to hold Christopher Harris over for trial in that particular

case.” However, the record reflects that the defense was able to present such evidence through

other witnesses.

               During his cross-examination in the punishment phase of trial, Sifuentez agreed that

a grand jury “no-billed” Harris for the extraneous bad act involving Sifuentez, and the prosecutor’s

next question confirmed for the jury that the case was “no-billed”:




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        Defense counsel:       Did you learn that this case was no-billed by a Travis County
                               district by a Travis County grand jury?

        Sifuentez:             What does that mean?

        Defense counsel:       That they didn’t—the grand jury found that there was not
                               sufficient probable cause to hold Christopher Harris over for
                               trial in that case.

        Sifuentez:             Oh, yeah, yeah. I heard something about that. That’s why
                               they let it go.

        Defense counsel:       Pass the witness.

        Prosecutor:            Do you know why the grand jury no-billed the case?

        Sifuentez:             No, ma’am.


Also during punishment, Zavala testified on redirect for the defense about her understanding of what

happened with the Sifuentez incident. Over the State’s objection, she stated, “I was told it was self-

defense[.]” Further, the State cited article 37.07 in its notice of intention to introduce evidence of

the prior assault against Sifuentez and that statute specifically refers to evidence of a defendant’s

prior criminal record during sentencing. See Tex. Code Crim. Proc. art. 37.07, § 3(a)(1); Garcia,

2001 Tex. App. LEXIS 808, at *3 (concluding that defendant could have reasonably anticipated

that State would call witness to extraneous offense, despite being omitted from State’s witness list,

because State gave prior notice of its intention to introduce evidence of that extraneous offense).

               On this record, Harris has not shown that the district court’s ruling allowing Sifuentez

to testify was outside the zone of reasonable disagreement. See Wood, 18 S.W.3d at 649; Hightower,

629 S.W.2d at 925. Accordingly, we overrule Harris’s third issue.




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                                       CONCLUSION

              We affirm the district court’s judgment of conviction.



                                            __________________________________________
                                            Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Goodwin and Triana

Affirmed

Filed: March 13, 2019

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