                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00152-CR

ERRIC BERNARD PORTIS, JR.,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 13-05016-CRF-361


                           MEMORANDUM OPINION


         Erric Portis, Jr. was convicted of two counts of aggravated robbery and was

sentenced to ninety years in prison on each count. TEX. PENAL CODE ANN. § 29.03 (West

2011).    Portis complains that the trial court abused its discretion by allowing the

admission of evidence regarding (1) his prior incarceration to prove identity; (2) evidence

of a carjacking that took place earlier in the day before the aggravated robbery; (3)

evidence of comments made by Portis during the investigation regarding going back to
prison; (4) evidence of a comment Portis yelled at a detective during the investigation;

and (5) extraneous offense evidence admitted during the rebuttal portion of the

punishment phase of the trial. Because we find no reversible error, we affirm the

judgments of the trial court.

                        ADMISSION OF EVIDENCE STANDARD OF REVIEW

        Each of Portis's five issues complain that the trial court abused its discretion in the

admission of evidence during the trial.1 We review the trial court's decision to admit or

exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its

decision to admit or exclude the evidence lies outside the zone of reasonable

disagreement. See Martinez, 327 S.W.3d at 736; De La Paz v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009). If the trial court's ruling on admissibility is correct under any

applicable legal theory, we will hold that the trial court did not abuse its discretion even

if it gave a wrong or incomplete reason for the ruling. See De La Paz, 279 S.W.3d at 344.

THE TATTOO

        In his first issue, Portis complains that the admission of testimony regarding a

conversation that took place between Portis and Donte Jackson regarding tattoos on

Portis's hand was erroneous pursuant to Rule 403 of the Rules of Evidence. Jackson, a




1 Because this is a memorandum opinion and the parties are familiar with the facts, we recite only those
facts necessary to the disposition of each issue. See TEX. R. APP. P. 47.1, 47.4.
Portis v. State                                                                                  Page 2
correctional officer at TDCJ, was a resident of an apartment complex near the bank where

the robbery took place. The day of the robbery, Portis approached Jackson from an older

white Ford Taurus and asked to use his phone. During this conversation, Jackson asked

Portis about a tattoo Jackson saw on Portis's hand because it was of very poor quality and

looked like a tattoo inmates commonly get in prison. Portis allegedly told Jackson that

he had gotten a "prison tattoo" while he was incarcerated for a "couple of years in the

Stiles Unit." After Jackson testified to the substance of their entire discussion regarding

the tattoo, Portis then objected "to the couple-of-years comment" pursuant to rules 401,

403, and 404(b) of the Rules of Evidence. The trial court overruled his objection but gave

the jury a limiting instruction at Portis's request that the jury could only consider the

evidence for purposes of identity. The State argues that Portis's objection was not timely.

        An objection is timely if it is made as soon as the ground for the objection becomes

apparent, i.e., as soon as the defense knows or should know that an error has occurred.

TEX. R. APP. P. 33.1(a)(1); Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008).

Generally, this occurs when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330,

355 (Tex. Crim. App. 1995). If a party fails to object until after an objectionable question

has been asked and answered, and he can show no legitimate reason to justify the delay,

his objection is untimely and error is waived. Id.

        In this instance, Portis had answered several questions about the poor quality of

his tattoo being because it was done in prison and he asked Jackson if he was a


Portis v. State                                                                       Page 3
correctional officer. The State asked Jackson if Portis had told him where he was locked

up and Jackson responded that yes, he did. The State then asked what he said and

Jackson then responded that Portis had done "a couple of years down at the Stiles Unit."

The State then said, "Okay" and then Portis made his objection. This was not timely and

therefore, error has not been preserved regarding this complaint. We overrule issue one.

THE CARJACKING

        In his second issue, Portis complains that the trial court abused its discretion in

allowing the victim of the carjacking to testify regarding the details of how and where the

white Ford Taurus that was used as a getaway vehicle in the robbery was stolen from

him. Portis objected to this testimony pursuant to Rules 404(b) and 403. However, later

in the trial, one of Portis's accomplices testified to the same details as the victim in the

carjacking without objection.

        It is well-established "erroneously admitted evidence will not result in reversal

when other such evidence was received without objection, either before or after the

complained-of ruling." Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010); see also

Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010). Because of the testimony

of the accomplice without objection, if there was any error in the admission of the victim's

testimony, it was harmless. Coble, 330 S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29. We

overrule issue two.




Portis v. State                                                                       Page 4
WILL NOT GO BACK TO PRISON

        In his third issue, Portis complains that the trial court abused its discretion by

allowing a detective to testify that Portis had told him that "he would die in his tracks

before he went back to prison." This statement was made several weeks after the robbery.

The investigation had shown that the number that Portis had called from Jackson's cell

phone was connected to Portis's girlfriend. Three detectives went to Portis's girlfriend's

residence and one detective spoke with Portis outside of the residence while the other

two spoke with the girlfriend inside. The detective asked Portis about the details of the

robbery. Portis denied driving a white Ford Taurus or having been to the apartment

complex where Jackson let Portis use his cell phone. Portis was uncooperative with the

detective and told him to arrest him if he was going to do so but that Portis would not

answer any more questions. The statement at issue was made at some point during that

conversation. Portis objected pursuant to rules 401, 403, 404(b), and 609 of the Rules of

Evidence.

        Even if we assume without deciding that the admission of this statement was

erroneous, we do not find that Portis was harmed by its admission. The purported

erroneous admission of evidence is non-constitutional error and is subject to a harm

analysis under Texas Rule of Appellate Procedure 44.2(b). See Motilla v. State, 78 S.W.3d

352, 355 (Tex. Crim. App. 2002). Under Rule 44.2(b), we disregard all non-constitutional

errors that do not affect Portis's substantial rights. See TEX. R. APP. P. 44.2(b); see also Rich


Portis v. State                                                                           Page 5
v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). A substantial right is affected when

the error has a substantial and injurious effect or influence in determining the jury's

verdict. Rich, 160 S.W.3d at 577; see Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

In conducting the harm analysis, we consider everything in the record, including any

testimony or physical evidence admitted for the jury's consideration, 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, the jury instructions, the State's

theory and any defensive theories, closing arguments, voir dire, and whether the State

emphasized the error. Rich, 160 S.W.3d at 577.

        Our review of the record shows that there was other evidence of Portis's having

been to prison previously, specifically Portis's conversation with Jackson regarding his

prison tattoos. Portis had been identified by Jackson by describing his clothing and shoes

that matched what one of the robbers had worn in the robbery, by his tattoos, and by his

hair that was cut in a Mohawk. Cell phone records connected Portis with his girlfriend

and the accomplices in the crime at relevant times and locations. One of the accomplices

testified that Portis participated in the robbery with him. The trial court properly

instructed the jury regarding the limited purpose of the admission of the extraneous

offenses and bad acts. The State did reference the statement briefly in closing. We do not

believe that the statement that Portis would "die in his tracks before going back to prison"

had a substantial and injurious effect or influence in determining the jury's verdict. We


Portis v. State                                                                         Page 6
overrule issue three.

NAME-CALLING

        In his fourth issue, Portis complains that the trial court abused its discretion by

allowing the detective that questioned Portis to testify as to a comment yelled by Portis

to the detective the same day as the statement in issue three. After Portis terminated the

interview with the detective, he eventually left in a vehicle. The detective then observed

that a couple of vehicles, including the one in which Portis had left, circled very slowly

several times around the mobile home park where Portis's girlfriend resided. Eventually,

Portis rolled down the window of one of the vehicles and yelled "Fuck you, pig" to the

detective. Portis objected pursuant to rules 401 and 403 of the Rules of Evidence.

        Even if we assume without deciding that the admission of this statement was

erroneous, we do not find that Portis was harmed by its admission. Under Rule 44.2(b),

we disregard all non-constitutional errors that do not affect Portis's substantial rights. See

TEX. R. APP. P. 44.2(b); see also Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). In

making this determination, our analysis is the same as discussed above in Portis's third

issue with the exception that the State did not reference this statement in its closing

argument. We do not find that this statement had a substantial and injurious effect or

influence in determining the jury's verdict. We overrule issue four.

PUNISHMENT REBUTTAL STATEMENT

        In his fifth issue, Portis complains that the trial court erred by allowing the State


Portis v. State                                                                          Page 7
to present testimony regarding a statement Portis made to a sheriff's deputy who had

moved Portis to a holding cell for Portis to be taken to court early in the morning on the

day of the sentencing phase of the trial. This was prior to the State resting its case in

punishment. The deputy testified that Portis told him that "after he got sentenced he was

going to act a fool and we were going to have to tase him." Portis argues that this evidence

was not proper rebuttal evidence because it was available to the State prior to resting and

did not rebut a material fact presented in Portis's case during the punishment phase. The

State argued that while it did know of the evidence prior to resting its case-in-chief on

punishment, the State had been unable to contact the deputy to whom Portis made the

comment to get him to testify earlier because he had gotten off duty at 7:00 that morning.

        Portis presented two witnesses in the punishment phase, a friend and his mother.

Both testified that Portis was at times a good person and a good father to his then 10-

year-old daughter. Portis's mother testified extensively about Portis's difficult childhood

and criminal history throughout his life.

        Even if we assume without deciding that the testimony was erroneously admitted

as rebuttal evidence, we do not find that Portis was harmed by the admission of the

evidence. As described above in issues three and four, the erroneous admission of

evidence is generally non-constitutional error governed by Rule 44.2(b). TEX. R. APP. P.

44.2(b).    Therefore, we "need only determine whether or not the error affected a

substantial right of the defendant." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.


Portis v. State                                                                       Page 8
2000). Substantial rights are not affected if, based on the record as a whole, we have a fair

assurance that the error did not influence the jury or had but a slight effect. Motilla, 78

S.W.3d at 355. The record shows that Portis was found guilty of aggravated robbery

based on evidence that a semi-automatic pistol was pointed at a bank teller while another

teller put money into a bag during the aggravated robbery, and during the punishment

phase the evidence also showed that Portis was believed to have committed a second

aggravated robbery at a bank in a similar fashion two weeks after the robbery that was

the subject of this prosecution. The evidence also showed that Portis had an extensive

violent criminal history that started when Portis was a juvenile and included several

incarcerations. While Portis was in jail awaiting trial on these offenses, Portis had been

inciting riots, swearing at and threatening guards, and otherwise causing problems on

many occasions. Based on his tattoos, evidence was presented that it was likely that

Portis is a member of a gang. After reviewing the record as a whole, we conclude the

error in the allowance of the testimony regarding Portis's threats to act out at sentencing

in rebuttal, if any, did not influence the jury or had but a slight effect. See Motilla, 78

S.W.3d at 355. We overrule issue five.

                                       CONCLUSION

        Having found no reversible error, we affirm the judgments of the trial court.




                                          TOM GRAY
                                          Chief Justice
Portis v. State                                                                        Page 9
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2016
Do not publish
[CRPM]




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