Affirmed and Memorandum Opinion filed August 30, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00174-CR

                        ABELARDO NARVAEZ, Appellant
                                           V.
                         THE STATE OF TEXAS, Appellee

                     On Appeal from the 185th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1492428

                    MEMORANDUM OPINION
      A jury convicted appellant Abelardo Narvaez of murder and sentenced him to
99 years’ confinement. Appellant asserts that the trial court erred by (1) overruling his
objections to the admission of extraneous offense evidence; and (2) denying his request
to impeach a witness with an out-of-court statement. For the reasons below, we affirm.

                                    BACKGROUND

      Houston police officers arrived at an America’s Best Value Inn in north Houston
at approximately 5:30 a.m. on December 19, 2015, responding to a report of a stabbing.
The officers found complainant Monica Balderas lying in the third-floor walkway
covered in blood. Complainant had been stabbed and died before the officers’ arrival
at the scene. The officers arrested appellant and charged him with murder. See Tex.
Penal Code Ann. § 19.02 (Vernon 2011).

      Appellant pleaded not guilty and proceeded to trial in February 2017. The
following individuals testified at appellant’s trial:

            Complainant’s two sons, Brandon and Martin, who were present when
             complainant was stabbed;
            a witness who was staying at the America’s Best Value Inn when
             complainant was stabbed;
            a witness who saw appellant and complainant at a party hours before
             complainant was stabbed;
            three Houston police officers who responded to the scene;
            the crime scene investigator;
            Deputy Chief Medical Examiner Dr. Dwayne Wolf; and
            appellant.

Relevant portions of the witnesses’ testimony are summarized below.

      Brandon was 16 years old at the time of the incident. Brandon testified that he,
Martin, and complainant had been staying at the America’s Best Value Inn for several
days; the family was occupying a two-room suite linked by a doorway. Brandon,
Martin, and complainant recently had been living with the complainant’s mother, but
the complainant’s mother had asked them to leave because “she didn’t want [appellant]
coming around no more.” Brandon testified that complainant and appellant had been
seeing each other “on and off for about a year and a half.”

      On the evening of December 18, 2015, appellant and complainant left the
America’s Best Value Inn to go “eat and go to the club to watch the game.” Appellant
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and complainant invited Brandon and Martin to accompany them, but the boys
declined. Brandon stated that appellant and complainant returned to the hotel room at
around 2:00 a.m. or 3:00 a.m.

      Brandon testified that he woke up a short time later when he heard complainant
screaming. Brandon walked into the adjoining room and saw appellant with “his hands
around [complainant’s] neck;” complainant and appellant “were arguing and about to
fight.” Brandon separated appellant and complainant; Brandon and complainant
repeatedly told appellant to leave. Appellant refused to leave and Martin called the
police.

      Brandon stated that appellant “didn’t want to get out” and retrieved two knives
from the kitchen. Brandon testified that appellant stabbed complainant in the neck as
she walked through the doorway separating the adjoining rooms. Brandon and Martin
ran up to separate appellant and complainant. Martin dragged complainant out of the
room and into the walkway; Brandon continued to struggle with appellant. While
waiting for police to arrive, Brandon and Martin barricaded appellant in the hotel room.
Brandon testified that appellant was “begging” the boys to “let him leave the hotel.”

      Appellant’s counsel cross-examined Brandon with respect to what Brandon told
police officers shortly after the incident. Brandon acknowledged he told the officers
that, while appellant was barricaded in the hotel room, appellant told the boys, “I’m
sorry, I’m sorry, I didn’t mean to do it[.]”

      Martin testified to a sequence of events similar to that described by Brandon.
Martin was 18 years old at the time of the incident. Martin recalled hearing appellant
and complainant return to the hotel room around 3:00 a.m. or 4:00 a.m. on December
19, 2015. Martin “started to doze off” and was awakened when he heard complainant
“gasping for air;” Martin walked into the adjoining room and saw appellant “had
[complainant] by the throat.”
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      After the boys separated appellant and complainant, Martin testified that they
told appellant to leave. Stating that appellant “looked like he was just ready to fight,”
Martin testified that appellant “said he wasn’t going to leave.” Martin “heard the
kitchen knives rattle” and saw appellant “rush[] towards” complainant “swinging the
knives at her.” Martin and Brandon ran towards appellant to “try[] to get the knives
away;” appellant continued to swing the knives at the boys. Martin was unsure of when
complainant was stabbed but noticed she was bleeding while the boys were struggling
with appellant. Martin testified that he and Brandon continued to subdue appellant and
“beat him up.” Martin dragged complainant out of the hotel room and “started running
down the hall, screaming for help.”

      Officer Jonathan Garza, Sergeant Arthur Semein, and Lieutenant Christopher
Hassig responded to the incident. According to Officer Garza, when he arrived at the
scene he saw complainant laying in the walkway covered with blood. Officer Garza
spoke to Brandon and Martin; he described them as “shocked,” “angry,” and “sad,
obviously, for what happened to their mom.”

      Officer Garza looked in the hotel room’s window and saw appellant “pacing
around the room.” Officer Garza and Sergeant Semein entered the hotel room and
detained appellant. Sergeant Semein testified that appellant was cooperative and
followed the officers’ commands. Describing the condition of the hotel room, Officer
Garza testified that “there was blood everywhere, on the bed, on the floor, it was on the
walls.” Lieutenant Hassig testified that “[t]here were broken knives, broken kitchen
utensils, broken glass, clothes, phones, you know, bed linens, just all thrown about the
room.”

      Appellant was transported to the hospital and treated for his injuries. Appellant
remained at the hospital for two to three hours and received staples and stitches.

      Lieutenant Hassig interviewed Brandon, Martin, and appellant hours after the
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incident. Lieutenant Hassig testified that Brandon’s and Martin’s statements were
“fairly consistent” and were consistent with the evidence recovered from the scene.
Describing his interview with appellant, Lieutenant Hassig stated that appellant:

      [W]ent from he didn’t remember [what happened] to that he was
      defending himself and that [complainant] attacked him and then the boys
      ganged up on him and that he was merely defending himself.

Appellant told Lieutenant Hassig that he retrieved the knives from the kitchen because
“he was trying to defend himself” and he “was just trying to leave.”

      Appellant also testified at trial. Appellant said he first dated complainant in 1996
and stated that they “would separate sometimes and then [they] would get back together
again.” Appellant and complainant had moved in together in December 2012.

      When they were returning to the America’s Best Value Inn the morning of
December 19, 2015, appellant testified that complainant “started to tell me that we
should go out to continue drinking” and that complainant “got a little upset” when
appellant said he wanted to return to the hotel room. Once they returned to the hotel
room, appellant testified that complainant “got angry and started arguing a little bit
more loudly.” Appellant said that complainant started cursing at him and grabbed him
by the genitals.

      Appellant testified that he told complainant, “Just let me go so that the kids don’t
get up and see us fighting” but complainant refused to let him leave. Appellant said
complainant “got angrier” and “scratched [his] face with both her hands.” Appellant
pushed complainant away and she fell on the ground, which angered Brandon and
Martin. Appellant testified that Brandon and Martin began beating him up; appellant
grabbed two knives “to scare [Brandon and Martin] so that they would stop beating
me.” Appellant said he held the knives to defend himself and was unaware that
complainant had been stabbed.

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       Dr. Wolf testified with respect to complainant’s autopsy. Dr. Wolf said that
 complainant had numerous sharp-force injuries, including a three-inch deep wound on
 her neck. Complainant also had sharp-force injuries on her left hand and left wrist. Dr.
 Wolf testified that, “in general, wounds of the hands, forearms and wrists . . . are
 considered defense-type injuries because they’re the kind of wounds that people tend
 to get if they’re fending off an assailant.” Dr. Wolf stated that complainant also had
 several bruises on her head.

       Following the close of evidence, the jury returned a verdict finding appellant
 guilty of murder. The jury sentenced appellant to 99 years’ confinement. Appellant
 timely appealed.

                                        ANALYSIS

       Appellant asserts that the trial court erred by (1) overruling his objections to the
 admission of extraneous offense evidence; and (2) denying his request to impeach
 Brandon with Brandon’s out-of-court statement to the police officers. We address
 these issues below.

I.     Admission of Extraneous Offense Evidence

       Martin testified with respect to an extraneous offense committed by appellant on
 May 17, 2015. On this date, Martin, Brandon, and their two brothers were living with
 complainant at a house in Houston. Martin and complainant were cleaning the house
 when appellant came over and “bang[ed] at the door, screaming for [them] to open the
 door.” Martin and complainant did not allow appellant to enter the house.

       Martin testified that appellant tried to enter the house through a bedroom
 window; appellant broke the bedroom window and pushed in an air conditioning unit.
 Martin and complainant put a chair in front of the window to prevent appellant from
 entering. Appellant took a screwdriver from his vehicle and returned to the window;

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Martin testified that appellant “pointed at me and [complainant] and he just, like, made
signs where he was going to stab her.” When asked to demonstrate appellant’s
gestures, Martin “pretend[ed] to have a screwdriver in his hand” and “pretend[ed] to
push that screwdriver into his own neck.” Martin testified that appellant said “he was
going to come kill us, come back for us.”

       The trial court initially heard this evidence at a hearing held outside of the jury’s
presence.     Arguing that the evidence was inadmissible, appellant asserted that
“admission of the — these extraneouses would only confuse the jury;” the evidence
was “highly prejudicial;” and it was “not relevant to what may have occurred [in] this
case.”1 The trial court overruled appellant’s objections.

       Appellant asserts that this extraneous offense evidence was admitted in violation
of Texas Rules of Evidence 403 and 404(b).

       A.      Standard of Review and Applicable Law

       We review a trial court’s ruling on the admissibility of extraneous offense
evidence for an abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim.
App. 2005); Leassear v. State, 465 S.W.3d 293, 303 (Tex. App.—Houston [14th Dist.]
2015, no pet.). If the trial court’s ruling is within the zone of reasonable disagreement,
there is no abuse of discretion and we will uphold the trial court’s ruling. Leassear,
465 S.W.3d at 303. We may affirm the trial court’s ruling if it was correct on any legal
theory applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).



       1
         Appellant’s objections at the evidentiary hearing preserved his Rule 403 objection. See Tex.
R. Evid. 403; Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
Appellant’s objections also preserved his Rule 404(b) argument. A general “relevance” objection
will preserve a Rule 404(b) complaint regarding an extraneous act as long as the parties describe the
evidence as “extraneous” during the discussion. Lopez, 200 S.W.3d at 251.

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       Texas Rule of Evidence 404(b) states that “[e]vidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Tex. R. Evid. 404(b)(1).
Extraneous offense evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Id. 404(b)(2).

       Article 38.36 of the Texas Code of Criminal Procedure states in relevant part:

       In all prosecutions for murder, the state or the defendant shall be permitted
       to offer testimony as to all relevant facts and circumstances surrounding
       the killing and the previous relationship between the accused and the
       deceased, together with all relevant facts and circumstances going to show
       the condition of the mind of the accused at the time of the offense.
Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2018). Evidence admissible under
Article 38.36 still must meet the requirements of the rules of evidence. Smith v. State,
5 S.W.3d 673, 679 (Tex. Crim. App. 1999).

       Rule 403 permits the trial court to “exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. Extraneous offense evidence is
admissible under Rules 403 and 404(b) if the evidence satisfies a two-pronged test:
(1) the extraneous offense evidence is relevant to a fact of consequence in the case
aside from its tendency to show action in conformity with character; and (2) the
probative value of the evidence is not substantially outweighed by unfair prejudice.
Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Leassear, 465 S.W.3d at
303.

       To determine whether the probative value of evidence is substantially
outweighed by the danger of unfair prejudice, we consider the following factors:

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(1) the probative value of the evidence; (2) the potential to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.
App. 2005); Jackson v. State, 491 S.W.3d 411, 422-23 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d).

      B.     Relevance

      Appellant asserts that Martin’s testimony with respect to the May 17, 2015
incident is “character conformity evidence” that has “no logical relevance to the
stabbing of the complainant.” The State responds that the evidence rebutted a defensive
theory and illustrated the prior relationship between appellant and complainant.

      Extraneous offense evidence is admissible to rebut a defensive theory raised by
the State’s witnesses during cross-examination. Bargas v. State, 252 S.W.3d 876, 890
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Ransom v. State, 920 S.W.2d
288, 301 (Tex. Crim. App. 1994)). To raise a defensive theory sufficient to open the
door to the introduction of extraneous offense evidence, the cross-examination must
undermine the State’s evidence and place in controversy a fact that the State was
attempting to prove. Id. When defense counsel’s cross-examination elicits a theory
that puts at issue the defendant’s intent to commit the charged offense, extraneous
offense evidence may be admitted to refute it. See Tibbs v. State, 125 S.W.3d 84, 89
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (defendant charged with murder
and aggravated assault; State allowed to introduce evidence of the defendant’s gang
membership to rebut claim of self-defense).

      Further, “in cases in which the prior relationship between the victim and the
accused is a material issue, illustrating the nature of the relationship may be the purpose
for which evidence of prior bad acts will be admissible.” Garcia v. State, 201 S.W.3d
695, 704 (Tex. Crim. App. 2006) (discussing Tex. Code Crim. Proc. Ann. art.
                                            9
38.36(a)). In Garcia, the defendant was convicted of murdering his wife. Id. at 697.
The court of appeals determined the trial court erred when it admitted evidence of an
earlier incident in which the defendant pushed his wife out of a car; the incident
occurred approximately eighteen months before the murder. Id. at 697-98. Reversing
the court of appeals’ judgment, the Court of Criminal Appeals held that evidence of the
earlier incident was “relevant to circumstances surrounding [the parties’] relationship
immediately preceding the murder.” Id. at 703-04; see also Harris v. State, No. 14-16-
00282-CR, 2018 WL 1004879, at *5 (Tex. App.—Houston [14th Dist.] Feb. 22, 2018,
no pet.) (mem. op., not designated for publication) (in capital murder case, the trial
court did not abuse its discretion in admitting evidence that showed the defendant relied
financially on the complainants and that “their relationship was deteriorating or the
parties had become estranged”).

      The trial court’s decision to admit the May 17, 2015 incident as an extraneous
offense does not fall outside the zone of reasonable disagreement. This evidence
rebutted a defensive theory raised by the defense during Brandon’s cross-examination.
The following exchange occurred when the defense questioned Brandon about
appellant’s statements made while Brandon and Martin barricaded appellant in the
hotel room:

      Q.      Also, you had mentioned that when you were, as you put it,
              detaining [appellant], he was asking for mercy; is that correct?
      A.      Yes.
      Q.      And, in fact, when you had that interview with the police officer,
              did he not say, I’m sorry, I’m sorry, I didn’t mean to do it?
      A.      He meant to do it.
      Q.      . . . Did he say, I’m sorry, I’m sorry, I didn’t mean to do it?
                               *             *             *
      A.      Yes.


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      Q.     And that’s what you told the police officers, correct?
      A.     Yes.

The jury was instructed that it could find appellant guilty of murder if it determined
that appellant “intentionally or knowingly cause[d] the death of [complainant]” or
“intend[ed] to cause serious bodily injury to [complainant], and did cause the death of
[complainant] by intentionally or knowingly committing an act clearly dangerous to
human life . . . .” The defense’s cross-examination of Brandon placed in controversy
appellant’s intent to commit the charged offense and suggested that appellant “didn’t
mean to do it.” The State was permitted to introduce extraneous offense evidence to
refute this defensive theory and show that appellant possessed the requisite intent. See
Bargas, 252 S.W.3d at 890; Tibbs, 125 S.W.3d at 89.

      Evidence of the May 17, 2015 incident also was relevant to illustrate the nature
of the relationship between appellant and complainant. See Garcia, 201 S.W.3d at 704;
Harris, 2018 WL 1004879, at *5. Like the incident in Garcia, the May 17, 2015
incident was “relevant to circumstances surrounding [the parties’] relationship
immediately preceding the murder.” See Garcia, 201 S.W.3d at 704.

      The trial court acted within its discretion in concluding that evidence of the May
17, 2015 incident was relevant to a fact of consequence in the case aside from its
tendency to show action in conformity with character. See Page, 213 S.W.3d at 336;
Leassear, 465 S.W.3d at 303.

      C.     Probative Value

      Analyzing the four factors discussed in State v. Mechler, appellant asserts that
the probative value of the extraneous offense evidence is substantially outweighed by
the danger of unfair prejudice. We disagree and conclude that the four factors do not
weigh in favor of excluding the challenged evidence.


                                          11
      With respect to the first factor, appellant contends that the extraneous offense
“was not relevant to an issue in the case.” But evidence that tends to rebut a defensive
theory is probative of determinative issues in a case. See Grant v. State, 475 S.W.3d
409, 420-21 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Bargas, 252 S.W.3d
at 893. As discussed above, defense counsel’s cross-examination of Brandon placed
in controversy appellant’s intent to commit the charged offense. Evidence refuting this
theory was relevant to prove appellant’s intent.

      For the second factor, appellant does not explain how the May 17, 2015 incident
had potential to impress the jury “in some irrational, yet indelible, way.” See Mechler,
153 S.W.3d at 440. Although the evidence likely carried some emotional weight,
appellant provides no reason to conclude that it would lead the jury to decide the case
on an improper basis.

      Addressing the third factor, the time needed to develop the evidence does not
weigh in favor of exclusion. Appellant’s trial spanned five days; Martin’s testimony
discussing the May 17, 2015 incident required only five pages of testimony.

      Finally, the State needed the evidence to address an issue in dispute, namely,
appellant’s intent to commit the charged offense. Brandon’s, Martin’s, and appellant’s
testimony differed with respect to complainant’s stabbing.        Brandon and Martin
testified that appellant intended to stab complainant; appellant suggested it was an
accident that occurred while he was defending against Brandon’s and Martin’s attacks.
The extraneous offense provided additional evidence relevant to show appellant’s
intent. This factor weighs in favor of admission. See Sanchez v. State, 444 S.W.3d
215, 221-22 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (where the challenged
evidence rebutted the defendant’s defensive theory, “the State’s need for the evidence
was great”).

      The four State v. Mechler factors do not weigh against admission of the
                                          12
  extraneous offense evidence. Overruling appellant’s first issue, we conclude the trial
  court did not abuse its discretion in admitting evidence of the May 17, 2015 incident.

II.       Witness Impeachment

          Appellant’s second issue addresses Brandon’s testimony with respect to
  complainant’s statements to Brandon after Brandon saw appellant with “his hands
  around [complainant’s] neck” shortly before complainant was stabbed.            Defense
  counsel cross-examined Brandon as follows.

          [Defense Counsel]        Okay. And at that point [complainant] tells you,
                                   He didn’t hurt me, correct?
          [Brandon]                Yes.
          [Defense Counsel]        She said, He didn’t hit me, correct?
          [Brandon]                No.
          [Defense Counsel]        That’s what [complainant] said. He didn’t —
                                   did you not tell the police officer —
          [State]                  Objection, that’s hearsay.
          [Court]                  Overruled.
          [Defense Counsel]        Did you not tell the police officers during the
                                   interview that [complainant] said —
          [State]                  Objection, hearsay.
          [Defense Counsel]        — didn’t hurt him [sic], didn’t —
          [Court]                  Y’all come on up.
  At the bench, defense counsel and the State discussed with the trial court the State’s
  hearsay objection. The trial court sustained the State’s objection and instructed defense
  counsel to “not impeach[] [Brandon] with what he told the cops [complainant]
  said . . . .”

          Appellant contends that the trial court erred when it sustained the State’s
  objection and denied appellant’s attempt to impeach Brandon with an out-of-court


                                             13
statement Brandon made to the police officers. The State asserts in response that
appellant failed to preserve his complaint for appeal.

        A defendant who seeks to cross-examine a State’s witness regarding the
credibility of the witness’s testimony must preserve error according to Texas Rule of
Evidence 103(a)(2). Allen v. State, 473 S.W.3d 426, 451 (Tex. App.—Houston [14th
Dist.] 2015, pet. dism’d) (citing Holmes v. State, 323 S.W.3d 163, 169 (Tex. Crim.
App. 2009)).2 Error is preserved by (1) calling the witness to the stand outside the
presence of the jury and asking specific questions; or (2) making an offer of proof
demonstrating what questions would have been asked and the expected answers to
those questions. Tex. R. Evid. 103; Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d).

        The record shows that appellant did not preserve this point of error for our
review. Brandon was not questioned outside the jury’s presence with respect to
complainant’s statements.            Appellant did not make an offer of proof showing
Brandon’s out-of-court statements or the testimony he sought to elicit from Brandon
on this topic. Because the record does not show what evidence the trial court’s ruling
excluded, we cannot determine whether the trial court erred and whether this error was
harmful. See Tex. R. Evid. 103; Allen, 473 S.W.3d at 451.

        We overrule appellant’s second issue.




        2
          In contrast to a challenge aimed at specific testimony, when a defendant seeks to cross-
examine a State’s witness with respect to the witness’s own credibility, the defendant need only show
“‘what general subject matter he desire[s] to examine the witness about during his cross-examination
and, if challenged, show on the record why such should be admitted into evidence.’” Allen, 473
S.W.3d at 451 (quoting Holmes, 323 S.W.3d at 168). A “witness’s credibility” refers to personal
characteristics of the witness such as malice, ill feeling, ill will, bias, or prejudice. Id. Here, appellant
sought to challenge the credibility of the witness’s testimony, which refers to the substance of the
evidence rather than the witness’s personal characteristics. Id.

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                                   CONCLUSION

      We overrule appellant’s issues on appeal and affirm the trial court’s judgment.




                                              /s/   William J. Boyce
                                                    Justice


Panel consists of Justices Boyce, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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