                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-07-420-CR
                                   2-07-421-CR


ANTHONY WAYNE RAMSEY                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Anthony Wayne Ramsey appeals his convictions for aggravated

sexual assault and failure to register as a sex offender. We affirm.

      After a night out drinking with appellant, David McBride, Matthew Davis,

and Ethany Bowden, Christina Gonzales was too intoxicated to walk unassisted.

Appellant, David, and Matthew helped her into appellant’s car, dropped off


      1
           See Tex. R. App. P. 47.4.
Ethany, and then took Christina home and helped her into bed, where she

immediately passed out.

      While David and Matthew “raided her refrigerator,” appellant returned to

Christina’s bedroom. Christina “woke up to pain because something was being

shoved in[side]” her. She could hear appellant’s voice in the room but drifted

in and out of consciousness, and although she did not consent to sex and told

him to stop, she was unable to protest loudly.

      After fifteen to thirty minutes, appellant rejoined David and Matthew. He

emerged from Christina’s room laughing, with blood on his hands, saying that

he had just had sex with her, and he joked that he needed a pair of “needle-

nose pliers” to extract a vibrator that he had lodged inside her.    Appellant

returned to the bedroom, came out after a few minutes, assuring the other two

that everything was okay, and they all left together.

      Christina awoke with severe abdominal pain. She saw blood on her bed

and blood when she went to the bathroom. When the pain would not subside,

she called 911 and was taken by ambulance to the hospital where it was

determined that she had suffered a torn colon caused by penetration with a

foreign object. It took surgery to stop her bleeding, and she had to wear a

colostomy bag for four months while she healed.




                                      2
      Appellant was arrested and charged with aggravated sexual assault.

Because he was serving a term of deferred adjudication community supervision

for failure to register as a sex offender, the State additionally petitioned to

revoke his community supervision and adjudicate him guilty of that offense.

While awaiting trial, appellant called David and threatened to accuse him of

sexually abusing children if he testified against him.

      A jury found appellant guilty of aggravated sexual assault. After hearing

additional evidence, the trial court revoked appellant’s community supervision,

adjudicated him guilty of failure to register as a sex offender, and sentenced

him to life in prison for aggravated sexual assault to run concurrently with ten

years’ confinement for failure to register.

      In his first point, appellant contends that the trial court abused its

discretion by admitting extraneous offense evidence that appellant had

threatened David not to testify and that as a result of the threat, David thought

that appellant was more responsible for Christina’s injuries than he had

originally thought.   Appellant argues that David’s testimony is inadmissible

under rules of evidence 402, 403, and 404(b).

      We review a trial court’s ruling on admissibility of evidence for an abuse

of discretion, and we will sustain a trial court’s evidentiary ruling if it is correct




                                          3
on any theory of law applicable to the case. 2 Rule 402 provides that evidence

which is not relevant is not admissible. 3 Rule 404(b) provides that evidence of

other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. 4 It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or accident. 5 The

list of “other purposes” in rule 404(b) is not exclusive.     Evidence that the

accused threatened a witness to coerce that witness’s testimony has been

held relevant under rule 404(b) to show the accused’s consciousness of guilt. 6

      David testified that appellant threatened to accuse him and his wife of

sexually abusing appellant’s girlfriend’s children if David testified against him




      2
        Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g); Romero v. State, 800 S.W.2d 539, 543–44 (Tex. Crim. App.
1990).
      3
           Tex. R. Evid. 402.
      4
           See Tex. R. Evid. 404(b).
      5
           Id.
      6
        Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) (op.
on reh’g), cert. denied, 519 U.S. 1030 (1996); Peoples v. State, 874 S.W.2d
804, 809 (Tex. App.–Fort Worth 1994, pet. ref’d); Hornbuckle v. State, Nos.
02-06-00316-CR, 02-06-00317-CR, 02-06-00318-CR, 2008 WL 2168007, at
*7 (Tex. App.—Fort Worth May 22, 2008, pet. ref’d) (mem. op., not
designated for publication).

                                        4
and that these threats made him think that appellant had something to do with

Christina’s injuries.    This testimony was relevant to show appellant’s

consciousness of guilt. 7

      Although we have held that David’s testimony was relevant, rule 403

provides that 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, or by considerations of undue delay, or needless

presentation of cumulative evidence. 8       A rule 403 analysis includes the

following factors: (1) how probative the evidence is; (2) the potential of the

evidence to impress the jury in some irrational, but nevertheless indelible way;

(3) the time the proponent needs to develop the evidence; and (4) the

proponent’s need for the evidence. 9 As a reviewing court using an abuse of

discretion standard, we should do more than decide whether the trial judge did

in fact conduct the required balancing between probative and prejudicial values;

the trial court’s determination must be reasonable in view of all relevant facts. 10


      7
           See Ransom, 920 S.W.2d at 299; Peoples, 874 S.W.2d at 809.
      8
           Tex. R. Evid. 403.
      9
        Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006),
cert. denied, 127 S. Ct. 664 (2006); Montgomery, 810 S.W.2d at 389–90.
      10
        Shuffield, 189 S.W.3d at 787; Santellan v. State, 939 S.W.2d 155,
169 (Tex. Crim. App.1997); Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim.

                                         5
      David’s testimony that appellant threatened him to keep him from

testifying is highly probative of appellant’s consciousness of his guilt. 11 It was

unlikely to influence the jury in an irrational way; to the contrary, it is rational

to conclude that appellant threatened David because he was guilty of the

offense.   Although appellant argues that the evidence took a long time to

develop, our review of the record shows that David’s testimony on this issue

consumed no more than two pages of the record. Finally, the State’s need for

the evidence was significant because consent was a contested issue and

evidence that appellant was conscious of his guilt tended to show that he knew

that Christina had not consented. On our review of the record, therefore, we

hold that the trial court acted within its discretion by admitting David’s

testimony. We overrule appellant’s first point.

      In his second point, appellant contends that the prosecutor engaged in

improper jury argument by referring to him as “evil” several times during the

State’s closing argument. Appellant did not object to these references during

the State’s argument but now claims that the prosecutor’s comments amounted

to fundamental error.     This claim is without merit.      The court of criminal


App.), cert. denied, 519 U.S. 1043 (1996); Montgomery, 810 S.W.2d at 392.
      11
         See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990,
no pet.) (“A ‘consciousness of guilt’ is perhaps one of the strongest kinds of
evidence of guilt.”).

                                         6
appeals, this court, and our sister courts have repeatedly held that jury

argument complaints must be preserved by objection or they are forfeited on

appeal. 12 Because appellant did not object to the prosecutor’s remarks, he has

forfeited this claim on appeal, and we overrule appellant’s second point.

      Having found no reversible error, we affirm the judgments.




                                                 PER CURIAM

PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.

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

DELIVERED: December 10, 2009




      12
         Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004);
Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S.
1173 (1997); Williams v. State, No. 08-03-00083-CR, 2006 WL 2987117, at
*2 (Tex. App.—El Paso Oct. 19, 2006, no pet.) (op. on remand, not designated
for publication); Chounard v. State, No. 04-05-00231-CR, 2006 WL 542702,
at *1 (Tex. App.—San Antonio Mar. 8, 2006, no pet.) (mem. op., not
designated for publication) (“improper jury argument, even if ‘incurable,’ is not
fundamental error that may be raised for the first time on appeal”); Lamkin v.
State, No. 02-03-00265-CR, 2004 WL 1909292, at *3 (Tex. App.—Fort Worth
Aug. 26, 2004, pet. ref’d) (mem. op., not designated for publication)
(“Appellant also may not claim fundamental error to excuse his failure to
preserve alleged error in the State’s arguments to the jury.”), cert. denied, 546
U.S. 840 (2005).

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