Affirmed and Memorandum Opinion filed August 21, 2012.




                                        In The

                         Fourteenth Court of Appeals
                                ___________________

                                 NO. 14-11-00533-CR
                                ___________________

                       ANTONIO LUIS GARCIA, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 149th District Court
                             Brazoria County, Texas
                          Trial Court Cause No. 63,635


                        MEMORANDUM OPINION

      Appellant, Antonio Luis Garcia, was charged with two counts of the felony offense
of burglary of a habitation with intent to commit theft. Tex. Penal Code Ann. § 30.02(a)
(West 2011). The jury acquitted appellant of the first count but found him guilty of the
second.   The jury assessed appellant’s punishment at fifteen years’ confinement.
Appellant now challenges his conviction on appeal. We affirm.
                          FACTUAL AND PROCEDURAL BACKGROUND

       Appellant and Lisa Padilla began a romantic relationship in November of 2007.
Before the on-again, off-again relationship came to a final conclusion sometime around
July of 2010, the two had lived together several times in two different residences.
However, once the romantic relationship came to an end, appellant continued to have
hopes that the romantic relationship would resume and as a result, he continued to make
contact with Padilla. Padilla on the other hand testified that once the relationship had
ended, she wanted to be left alone and that appellant no longer had permission to enter her
Pearland residence.

       In September of 2010, Padilla began dating another man. It was after that new
relationship started that Padilla began having trouble with appellant. On October 2, 2010,
appellant sent Padilla a text message that he had pictures of Padilla naked. This text
message confused Padilla as she had never allowed those type of pictures to be taken of
her. Upset, Padilla deleted the text message.

       Later that same night or the next day, appellant sent another text message telling
Padilla he had left something for her on her jeep. Padilla was not at her house when she
received the second text message. When she returned home on October 3, 2010, Padilla
found her camera on her jeep, but without the battery or the memory card. After receiving
the second text message, Padilla began to realize that appellant was referring to pictures
she had taken of herself to track the healing process after breast augmentation surgery.
Padilla testified that she kept her camera on her nightstand and that she never sent appellant
any of the pictures of her recovery from surgery. She also testified that the only way
appellant could have learned about the pictures was by taking her camera. Appellant filed
a report with the Pearland Police Department.




                                              2
        The next day was Monday, October 4, 2010 and Padilla went to work. While on
her lunch break, Padilla followed her normal routine and went to a nearby Ross store. As
she entered the Ross, appellant approached and grabbed her. Appellant indicated he
wanted to talk to her. Padilla kept moving and asked appellant about her memory card.
Appellant said he was sorry and then gave her the memory card. Appellant also explained
that he got into her house through the open back door. 1 Appellant then continued to
follow Padilla around the store until she threatened to call the police. At that point,
appellant left.

        That same day Padilla’s house was broken into again. Padilla testified that an
internet cable, television remote, and a bag of Padilla’s panties were missing. Padilla later
revealed that a sex toy was also missing but she had been too embarrassed to include it in
her report to the police. Padilla noticed that her bathroom window was cracked, glass was
on the floor, and it looked like it had been pried open. Padilla testified that the window
was always kept locked.

        Monica Perez was a close friend of Padilla’s who had met appellant a single time.
Sometime in October of 2010, appellant called Perez on the telephone and wanted to talk
about Padilla. During the conversation, appellant admitted that he had entered Padilla’s
house and took her camera, panties, and sex toy. Appellant told Perez that he had entered
Padilla’s house through the bathroom window. Appellant also told Perez that he had
returned Padilla’s camera. During the remainder of the conversation, appellant discussed
personal things about Padilla such as her housekeeping skills and her plastic surgery.
Appellant also talked about how he loved Padilla and wanted to marry her. Finally,
appellant mentioned that he had seen some before and after pictures of Padilla’s breast



        1
         Padilla testified she believed appellant’s explanation for how he entered her house because her
daughters frequently leave the back door unlocked.
                                                   3
augmentation surgery, was upset about them, and thought she was going to show them to
other people.

       Armando Godoy is Padilla’s father. Godoy testified that he knew appellant and
had talked to him on several different occasions. Godoy then talked about the last time he
spoke with appellant. According to Godoy, appellant came to his house and told him that
he had broken up with his daughter. Appellant also told Godoy that he had gotten angry at
Padilla and had broken into her house and had stolen her camera. Appellant told Godoy
that he wanted to get back together with Padilla. Godoy told appellant that Padilla did not
want anything to do with him and that it would be best if he left her alone.

       Two Pearland police officers responded to the burglary calls at Padilla’s residence.
Officer Josh Comer was dispatched on October 3, 2010 to Padilla’s house. Once Comer
arrived, Padilla described how appellant had called her earlier in the day and discussed
having her camera and that he wanted to see pictures of her breast augmentation surgery.
Padilla then told Comer that when she got home, she found her camera sitting on her jeep
parked in her driveway. Comer took a report. After he returned to the police department,
Comer called appellant to get his side of the story, but he did not answer. Comer left a
message indicating that appellant was not allowed back on Padilla’s property.

       Officer James McGuire testified that he was dispatched to investigate a burglary call
at Padilla’s residence on October 4, 2010. McGuire spoke to Padilla and learned that
someone had forced entry into the house through the bathroom window on the back side of
the house. According to McGuire, Padilla reported several items were missing and that
this indicated to him that the person responsible was someone close to Padilla.

       The State next called Officer Robert DeSilva to testify. DeSilva took a voluntary
statement from Monica Perez. Based on the information DeSilva had received regarding


                                             4
the burglaries at Padilla’s residence, appellant was his main suspect. DeSilva forwarded
all the information he had regarding the burglaries to the Pearland detectives.

       Finally, the State called Detective Jeffrey Journagin to testify. Detective Journagin
testified that he received all of the information the patrol officers had gathered regarding
the burglaries at Padilla’s residence. In his opinion, the evidence pointed to appellant as
the person who had committed the burglaries.

       As he did with each of the police officers, on cross-examination, appellant
questioned Detective Journagin about the thoroughness of the police investigation.
During that cross-examination, Detective Journagin admitted that, as part of his
investigation, he did not (1) obtain a single search warrant; (2) interview a single witness;
or (3) visit the scene of the alleged burglaries. Instead, Detective Journagin testified that
he gathered the reports prepared by the other police officers and sent them on to the district
attorney’s office.     Following that cross-examination, on re-direct, the State asked
Detective Journagin:

       Q.       Based on your professional opinion, doing this for 16 years, did you
                feel like anything else needed to be done in this case?

       A.       I wanted to follow up a little bit further and speak to [appellant], but
                he didn’t want to talk to me.

Appellant objected that the quoted testimony “violated [his] Fifth Amendment Rights by
testifying that [Journagin] asked to interview him and … [appellant] didn’t want to speak
to him.” The trial court sustained appellant’s objection and then instructed the jury:
“Ladies and gentlemen of the jury, you’ll be instructed to disregard the answer to that last
question.” The trial court then denied appellant’s motion for a mistrial. At that point, the
State rested.




                                               5
       Appellant called Raquel Rooney, appellant’s mother, to testify. Rooney testified
that appellant was living with her in the Woodlands at the end of September, 2010.
Rooney also testified at length about the car problems appellant experienced at the end of
September, 2010. According to Rooney, appellant’s vehicle broke down and appellant
worked on it in her driveway from September 27th through September 29th. Rooney also
testified appellant was at his grandfather’s birthday celebration on Friday, October 1, 2010,
and Saturday, October 2, 2010 and that he spent the night in the Woodlands on Saturday.

       On cross-examination, Rooney testified that appellant’s relationship with Padilla
had ended when he moved in with her in the Woodlands. Rooney admitted appellant had
gotten his truck repaired so that it was drivable by September 29, 2010. Rooney also
admitted that she was at work on October 1, October 2, and October 4, 2010 and as a result,
she was not actually aware of her son’s whereabouts on those days.

       Appellant elected to testify in his own defense. Appellant stated that he and Padilla
lived together on multiple occasions beginning in February of 2008. Appellant admitted
he moved out of Padilla’s residence for the final time in June of 2010 and the final break-up
occurred right after Labor Day in September of 2010.            Appellant testified that he
contracted a sexually transmitted disease, which he discovered in September of 2010.
Appellant believed he had contracted the disease from Padilla and as a result he wanted to
talk to Padilla about it, but she refused to discuss it. Despite Padilla’s refusal to discuss
the issue with him, appellant testified he continued to make contact with her as part of his
effort to discuss the disease with her. Appellant also testified that he believed his efforts
to confront Padilla about the sexually transmitted disease directly led to her making the
burglary charges against him.

       Appellant testified he learned that Padilla was dating another man on October 1,
2010. Appellant stated that he returned a memory disk of pictures that he claimed
contained naked pictures of the two of them. According to appellant, he talked to Padilla
                                            6
about the pictures and he told her he would leave the disk on her jeep. As to why he
returned the pictures to Padilla, appellant explained that it was part of his effort to reconcile
with Padilla and that he was:

       [t]rying to be honest … I felt that she was being involved with somebody
       else, was probably going to use her. I cared for her very much and didn’t
       want anybody else hurting her, hampering our situation. I wanted to find
       out more about our medical issue, work things out together. And by
       bringing this disk back to her, showing her at least I could be honest with her
       and straightforward with her and her not being able to hide something as she
       was hiding this medical issue from me.

       Appellant then explained his car problems and he admitted that he had his truck
repaired and operable by September 29, 2010. Turning to the events of early October,
appellant testified that he planned to have lunch with Padilla on Friday, October 1 but it did
not happen because unbeknownst to him, Padilla had changed her work lunch schedule.
When that lunch did not happen, appellant testified he travelled to his aunt’s house for his
grandfather’s birthday celebration. Appellant denied having any contact with Padilla on
October 3, 2010. While he initially denied having contact with Padilla on October 4th, he
later clarified that was the day he met Padilla at the Ross store. According to appellant, he
knew Padilla’s lunchtime routine and he parked outside the Ross and when she drove up,
he approached her. Appellant testified that he wanted to discuss his medical issue with
Padilla. Appellant also testified that he returned the key to Padilla’s house during that
meeting. According to appellant, while they were

       … walking from the parking lot into Ross, we were discussing – I was upset
       still over having her a new boyfriend and this medical issue as well. So I
       wanted answers. I wanted to see her tests as well, her results, and I was not
       getting any kind of truthfulness back at that time.

Appellant testified he broke off the meeting with Padilla at Ross when Padilla threatened to
call the Houston Police.


                                               7
       Appellant denied going into Padilla’s house from September 22, 2010 through
October 4, 2010.      Appellant also denied that Padilla contacted him regarding any
allegations that he had entered Padilla’s house without permission and took underwear, a
cable, and a sex toy. Appellant admitted that he called Padilla’s father on October 3,
2010. According to appellant, he called Godoy on the telephone in an effort to get back
together with Padilla.

       Prior to the start of the State’s cross-examination of appellant, the State approached
the bench regarding whether they would be allowed to cross-examine appellant regarding
two extraneous offenses. The State asserted appellant’s direct testimony opened the door
to this cross-examination. The first extraneous offense involved an alleged criminal
mischief incident in which the State asserted that appellant vandalized Padilla’s new
boyfriend’s car outside Padilla’s house. The trial court did not allow the State to inquire
into that incident.

       The second extraneous offense related to a third burglary incident on October 10,
2010. In the third alleged burglary, the State asserted that appellant turned off the
electricity to Padilla’s house, kicked in the back door, and then entered the kitchen of the
house. According to the State, Padilla’s daughter noticed the lights go out, heard the door
kicked in, and then heard someone in the kitchen. The daughter called the police and upon
their arrival on the scene, the police did not find an intruder inside the house, but did spot
appellant’s empty vehicle parked behind Padilla’s house.          Appellant was eventually
arrested on a traffic offense after he returned to the vehicle later that night. Appellant
objected under Rules 403 and 404(b) of the Texas Rules of Evidence. The trial court
overruled those objections but did grant appellant’s request for a limiting instruction.

       The State began its cross-examination of appellant by immediately asking appellant
if he was at Padilla’s house on the evening of October 10, 2010. At that point, appellant


                                              8
re-urged his objections, which the trial court overruled. The trial court then gave the
following limiting instruction:

       Ladies and gentlemen of the jury, you may hear some testimony in regard to
       a – an offense that is extraneous to the allegations before you as indicted. If
       you hear that testimony, you’re not to consider the evidence of that offense
       unless you believe beyond a reasonable doubt that that offense, in fact,
       occurred. And even then, you are only to consider the evidence for the
       limited purposes of determining whether or not, if it does, it rebuts a
       defensive theory, it goes to motive, opportunity, intent or plan of the
       defendant.

Following that instruction, appellant admitted that he parked his vehicle behind Padilla’s
house on the evening of October 10, 2010. Appellant then denied that he broke into
Padilla’s house, cut the electricity off, or cut the telephone line. Appellant testified that
after he parked his truck behind Padilla’s house, he left the area and went somewhere else.
Appellant admitted that he later returned to his truck and that he was arrested for a traffic
offense a short time after he drove away from Padilla’s house.

       Appellant also admitted that following his mother’s trial testimony, he had a
conversation with her in which he told her that her testimony was not what he had told her
to say. Appellant then admitted that he had written a letter to his mother in which he told
her what to say. Appellant also testified that he sent the same letter to his aunt.

       During the remainder of the State’s cross-examination, appellant claimed that the
burglary allegations were part of a conspiracy to keep anyone from learning that Padilla
had allegedly given appellant a sexually transmitted disease. Appellant admitted that the
majority of text messages and telephone calls during the time period around the burglaries
were from him to Padilla and not the opposite. Finally, while he initially denied he
received a telephone call from the Pearland Police Department and said the police officer
was lying when he testified to that effect, when confronted with his telephone records,


                                              9
appellant admitted he had received a telephone call from the Pearland Police on October 3,
2010.

        After appellant rested, the State presented several rebuttal witnesses.          Padilla
testified that she is tested for sexually transmitted diseases as part of her regular
gynecologist examinations. Padilla also testified that appellant told her that he was dating
other people at this time. Padilla was also asked about the October 10, 2010 burglary
incident. Padilla testified that while she was working, she received a call from her
daughter, who was scared and panicked. After she got off work, Padilla returned home
and observed that her back door had been kicked in and the power was cut off at the
breaker.

        Padilla’s daughter, Alicia Hernandez then testified. Hernandez testified that at
about 1:00 a.m. on October 10, 2010, she was watching television with her boyfriend when
they heard a bang. According to Hernandez, the lights then went out and it sounded like
someone was trying to come into the house through the back door. Hernandez heard
someone opening drawers in the kitchen and at that point she called the police. Hernandez
testified that the intruder left after about five to ten minutes, just before the police arrived.

        Officer McGuire was brought back to testify about appellant’s arrest on October 10,
2010. According to McGuire, he responded to a call about a possible break-in at Padilla’s
house. As he arrived at Padilla’s house, he heard the backyard fence shake. The police
were unable to locate anyone inside the house or backyard. McGuire did observe that the
breaker box to Padilla’s house was in the backyard. While investigating the break-in,
McGuire noticed a truck parked behind Padilla’s house and he determined the truck
belonged to appellant. The truck was empty but the engine was still hot, so the police set
up to observe the truck. After several hours, appellant returned to his truck and he drove
off. Another officer stopped appellant for a traffic offense and he was placed under arrest
at that time.
                                               10
       At the close of the evidence, appellant presented his final argument. During his
closing argument, appellant emphasized his various defensive theories. First among these
was appellant’s contention that the burglary accusations were part of a conspiracy to make
him look bad and deflect attention away from the issue of sexually transmitted disease.
Appellant also emphasized his contention that the police investigation was inadequate and
the existence of appellant’s alibis. During his closing argument, appellant questioned
whether any burglaries actually occurred; if they did occur what evidence connected them
to appellant, and for what possible reason someone would break into a home and take the
items reported missing. Finally, appellant directly addressed the issue of the identity of
the perpetrator during his closing argument when his defense counsel stated “[w]e don’t
know who went into that house.”

       Following the arguments of both sides, the case was submitted to the jury. The
jury acquitted appellant of the first burglary charge but found him guilty of the second. At
the conclusion of the punishment phase, the jury assessed appellant’s punishment at fifteen
years’ imprisonment. This appeal followed.


                                        DISCUSSION

I.     Admission of Extraneous Offenses

       In his first issue on appeal, appellant contends the trial court violated Rule 404(b) of
the Texas Rules of Evidence when it admitted into evidence testimony regarding the
October 10, 2010 burglary allegation. In his second issue, appellant asserts the trial court
violated Rule 403 of the Texas Rules of Evidence when it admitted the evidence regarding
the October 10, 2010 burglary because the probative value of that evidence was
substantially outweighed by the danger of unfair prejudice. Because the two issues grow
out of the admission of the same evidence, we address them together.




                                              11
       A.     Standard of Review and Applicable Law

       Evidence of extraneous offenses is not admissible at the guilt phase of a trial to
prove that a defendant committed the charged offense in conformity with a bad character.
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing Tex. R. Evid. 404(b)).
Despite the general rule, extraneous offense evidence may be admissible when it has
relevance apart from character conformity. Id. Evidence is “relevant to a material issue
if the purpose for which the party seeks to have it submitted tends to make ‘the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’” Smith v. State, 5 S.W.3d 673, 679 n.13
(Tex. Crim. App. 1999) (quoting Rankin v. State, 974 S.W.2d 707, 719–20 (Tex. Crim.
App. 1998)).     Extraneous offense evidence may be admissible to show motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Devoe, 354 S.W.3d at 469. It is also well settled that extraneous offense
evidence is admissible to rebut a defensive theory. Hudson v. State, 112 S.W.3d 794, 801
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). When a defendant raises a defensive
theory, he opens the door for the State to offer rebuttal testimony concerning an extraneous
offense if the extraneous offense has characteristics common with the offense for which the
defendant is being tried. Id.

       Extraneous offense evidence that has relevance apart from character conformity
may nonetheless be inadmissible under Rule 403 if the trial court determines that the
probative value of the evidence is substantially outweighed by the danger of unfair
prejudice. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than prejudicial.
Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
When conducting a Rule 403 balancing test, a trial court should analyze (1) the inherent
probative value of the evidence, or in other words, how compellingly the extraneous
offense evidence serves to make a fact of consequence more or less probable, a factor

                                             12
related to the strength of the evidence presented by the proponent to show the defendant
committed the extraneous offense; (2) the potential for the evidence to impress the jury in
some irrational but nevertheless indelible way; (3) the time the proponent will need to
develop the evidence; and (4) the proponent’s need for that evidence, i.e., whether other
evidence is available and whether the fact of consequence is related to a disputed issue.
Isenhower v. State, 261 S.W.3d 168, 177–78 (Tex. App.—Houston [14th Dist.] 2008, no
pet.); Prince v. State, 192 S.W.3d 49, 56 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); Hudson, 112 S.W.3d at 804.

       Because the trial court is in the best position to decide these admissibility questions,
an appellate court must review a trial court’s evidentiary rulings under an abuse of
discretion standard. Robbins v. State, 88 S.W.3d 256, 259–60 (Tex. Crim. App. 2002)
(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)).
We uphold a trial court’s decision to admit evidence when that decision is within the zone
of reasonable disagreement. Id. at 260. A trial court is given wide latitude to admit or
exclude evidence of extraneous offenses. Hudson, 112 S.W.3d at 801. If the trial court’s
evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be
disturbed, even if the trial judge gave the wrong reason for the correct ruling. Devoe, 354
S.W.3d at 469. An appellate court misapplies this standard of review if it reverses a trial
court’s evidentiary ruling simply because the appellate court disagrees with it. Robbins,
88 S.W.3d at 260.

       B.     Rule 404(b) Analysis

       As discussed above, appellant asserted numerous defensive theories. Among these
was his contention that Padilla’s two burglary allegations were false charges that were part
of a conspiracy against appellant to prevent him from revealing his belief Padilla had given
him a sexually transmitted disease. To buttress his false charges allegation, appellant
emphasized his belief that the police investigation into the allegations was inadequate in
numerous ways, including the failure to execute a search warrant as well as the failure to
                                              13
even ask to see the pictures on the memory disk from Padilla’s camera. Appellant also
emphasized the lack of any eyewitness testimony placing him inside Padilla’s house at the
time of the charged offenses as well as his lack of opportunity to commit the offenses
because of his car problems and his attendance at his grandfather’s birthday celebration in
the Woodlands. In essence, appellant challenged whether the two charged burglary
incidents occurred at all; and if they did, his identity as the burglar.2

        The extraneous offense evidence showed that Padilla’s daughter was home in the
early morning hours of October 10, 2010. She and her boyfriend heard a loud bang as
someone kicked in the back door, and they also observed that the electricity went out and
heard someone moving about in the kitchen of the house. At that point, they called the
police. The police arrived and heard a noise like someone was climbing over the backyard
fence. While investigating the report, the police found appellant’s empty truck parked
behind Padilla’s house with the engine still hot.                 The police kept the truck under
observation and when it drove away, they arrested the driver, appellant, for a traffic
violation.    Because the extraneous offense evidence established that appellant was
arrested in close proximity to Padilla’s house following a reported break-in, we hold the
trial court was within its discretion to conclude that evidence of the October 10, 2010
burglary had non-character conforming relevance rebutting appellant’s defensive theory
that the charged burglaries were contrived as part of a conspiracy against him. See Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) (holding that the admission of
extraneous offense evidence to rebut defensive theory that charges at issue in appeal were
contrived in retaliation for complaints filed by defendant’s spouse was within the zone of
reasonable disagreement); see also Robbins, 88 S.W.3d at 260 (holding that because it was

        2
          The Court of Criminal Appeals has pointed out that it is not the effectiveness of the defendant’s
defensive theory that controls whether the door has been opened for the State to then introduce extraneous
offense evidence to rebut that theory. See Page v. State, 137 S.W.3d 75, 79 (Tex. Crim. App. 2004) (“That
the impeachment was not particularly damaging or effective in light of all the evidence presented is not the
question. The question is whether impeachment occurred that raised the issue of identity. If so, Rule
404(b) permits the introduction of extraneous offenses that are relevant to identity.”)
                                                    14
subject to reasonable debate whether the extraneous offense evidence made the defensive
theories less probable, the trial court did not abuse its discretion when it admitted the
evidence); see Isenhower, 261 S.W.3d at 181; (stating that a trial court does not abuse its
discretion in admitting extraneous offense evidence to rebut a defensive theory of frame-up
or retaliation); see Keen v. State, 85 S.W.3d 405, 414 (Tex. App.—Tyler 2002, pet. ref’d)
(holding that the trial court could have reasonably decided that the extraneous offense
evidence had noncharacter conformity relevance where it rebutted the defendant’s
defensive theory that he was framed).

        C.      Rule 403 Analysis

        We turn now to appellant’s Rule 403 complaint. Appellant first argues that the
extraneous offense evidence had great potential to impress the jury in an irrational and
indelible way. In support of this contention, appellant points out that the October 10, 2010
incident occurred at night while the two charged offenses occurred during the day.
Appellant also emphasizes the fact that during the October 10 incident, the intruder turned
off the electricity and kicked in the back door. According to appellant these facts made it
likely the evidence would lead the jury astray by making them think the intruder was
interested in physically harming or even sexually assaulting someone inside the house.
Appellant also argues the State’s need for the evidence was low because the State “had
other evidence to prove motive.” In addition, appellant contends the State required a great
deal of time to introduce the evidence of the extraneous offense as the State questioned
appellant about it as well as called three witnesses during rebuttal to address the extraneous
offense. Appellant continues that, as a result of this, the jury was distracted from the
charged offenses. Appellant concludes by asserting the Rule 403 factors weigh against
admission of the evidence and the trial court abused its discretion when it admitted the
evidence.3 We disagree.


        3
         In his brief, appellant emphasizes the fact that the trial court did not conduct the Rule 403
balancing analysis on the record. To the extent appellant contends this was error on the part of the trial
                                                   15
        Here, the extraneous offense evidence established that appellant was arrested on
October 10, 2010 for a traffic violation while driving his truck away from a parking lot
behind Padilla’s house. The truck had been spotted while the police were investigating a
report of a break-in at Padilla’s house. The extraneous offense evidence also established
that the October 10 break-in occurred within days of the charged offenses. We conclude
the probative value of the extraneous offense evidence was high as it arguably rebutted
appellant’s defensive theory that the burglary charges were fabricated as part of a
conspiracy against appellant. See Isenhower, 261 S.W.3d at 181. This factor weighs in
favor of admission of the evidence.

        Turning to the second factor, the potential of the extraneous offense evidence to
impress the jury in an irrational but nonetheless indelible way was low.                          Despite
appellant’s argument to the contrary, the evidence was not inflammatory and did not
involve a crime of physical violence. In addition, the danger an impermissible inference
was created by the admission of the extraneous offense evidence was minimized because
the trial court gave a limiting instruction before the evidence was admitted as well as in the
jury charge. See Prince, 192 S.W.3d at 56 (stating that “any impermissible inference of
character conformity can be minimized through a limiting instruction.”).                         We also
conclude the second factor weighs in favor of the admission of the evidence.

        The third factor in the Rule 403 analysis is the time needed to develop the
extraneous offense evidence. Here, the October 10 break-in was not mentioned until the
State cross-examined appellant. Then, during the State’s rebuttal case, the State called
three witnesses to testify about the October 10 break-in. This testimony, including


court, we disagree. There is no requirement that the trial court place the results of the Rule 403 balancing
test on the record. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998); Williams v. State, 958
S.W.2d 186, 195 (Tex. Crim. App. 1997). Instead, we presume the trial court conducted the balancing test
once a party objects on Rule 403 grounds and the trial court rules on the objection, unless the record
indicates otherwise. See Rojas, 986 S.W.2d at 250 (no error when the trial court listened to defendant’s
Rule 403objections and then overruled them); Santellan v. State, 939 S.W.2d 642, 651 (Tex. Crim. App.
1997).
                                                    16
cross-examination, covers fifty pages out of the 400-plus pages of testimony included in
the reporter’s record; approximately 12.5%.4 We conclude this is not excessive. See
Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (holding that extraneous
offense evidence totaling twenty percent of the State’s case-in-chief was not excessive).
The third factor also weighs in favor of admission of the evidence.

        With regard to the fourth factor, we conclude the State’s need for the evidence was
high as it needed the extraneous offense evidence to rebut appellant’s defensive theories,
particularly his conspiracy defense.           See Isenhower, 261 S.W.3d at 182 (“Because
appellant strongly contested A.B.’s allegations on a theory of retaliation, the State
demonstrated its need to counter appellant’s defensive theory with Davidson’s
testimony.”). The fourth factor also weighs in favor of admission of the extraneous
offense evidence.

        Because all of the Rule 403 factors weigh in favor of admission of the evidence, the
decision to admit the evidence was within the zone of reasonable disagreement and
therefore the trial court did not abuse its discretion when it admitted the extraneous offense
evidence. See id. We overrule appellant’s first and second issues.

II.     Denial of Appellant’s Motion for Mistrial

        Following appellant’s cross-examination of Detective Journagin which largely
challenged the thoroughness of his investigation, the State asked him if there was anything
additional he would have liked to do as part of his investigation. In his answer, Detective
Journagin arguably commented on appellant’s unwillingness to speak to him. Appellant
lodged an objection to that testimony as a violation of appellant's Fifth Amendment rights,
which the trial court sustained. The trial court also instructed the jury to disregard the



        4
          While the rebuttal portion of the record runs fifty pages in length, seven of those pages were
devoted to discussions outside the presence of the jury addressing the admissibility of an apology letter
written by appellant.
                                                   17
testimony. Appellant then moved for a mistrial, which the trial court denied. In his third
issue, appellant contends the trial court erred when it denied his motion for mistrial.

       A.     Standard of Review and Applicable Law

       A trial court’s denial of a motion for mistrial is reviewed for an abuse of discretion.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d
642, 648 (Tex. Crim. App. 2000). A mistrial is appropriate only for “highly prejudicial
and incurable errors.” Wood, 18 S.W.3d at 648. A mistrial is a mechanism to end a
proceeding when the trial court faces prejudicial error that makes continuance of the trial
wasteful and futile. Id. When, as here, an appellant is not contesting the trial court’s
ruling on his objection, but rather the denial of a new trial, the denial should be upheld
unless it falls outside the zone of reasonable disagreement. Archie v. State, 221 S.W.3d
695, 699 (Tex. Crim. App. 2007); see Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999) (reviewing denial of a mistrial for abuse of discretion when improper question is
asked and objection is sustained and instruction is given to jury to disregard). When the
trial court has instructed the jury to disregard evidence, the jury is presumed to have
followed the instruction. See Hawkins, 135 S.W.3d at 77. In determining whether a new
trial nonetheless is mandated despite the instruction to disregard, we look at the facts and
circumstances of the case to see if the trial court’s instruction cured the presentation of
objectionable matters before the jury. See id.

       In Waldo v. State, the Court of Criminal Appeals considered, without adopting, six
factors to determine whether the curative instruction given by the trial court following an
allusion to the defendant’s post-arrest silence was effective: (1) the nature of the error, (2)
the persistence of the prosecution in committing the error, (3) the flagrancy of the
violation, (4) the particular instruction given, (5) the weight of incriminating evidence, and
(6) the harm to the accused as measured by the severity of the sentence. Waldo v. State,
746 S.W.2d 750, 754 (Tex. Crim. App. 1988).            Assuming without deciding (1) that
appellant’s Fifth Amendment rights had attached by the time Detective Journagin
                                              18
attempted to speak with him; and (2) that the Waldo factors apply, we conclude balancing
these factors does not mandate a new trial.

       With regard to the first three factors, we conclude the error was inadvertent and not
solicited by the State. The offending testimony came as part of Detective Journagin’s
answer to the prosecutor’s question responding to appellant’s defense that the police
investigation was inadequate and the error was not mentioned again. As for the fourth
factor, appellant’s attorney promptly objected, the trial court sustained the objection, and
then, in response to appellant’s request for an instruction to disregard, the trial court
instructed the jury to disregard Detective Journagin’s testimony. Turning to the fifth
factor, we begin by noting that the State’s case against appellant was based on
circumstantial evidence.        Despite that, we do not believe Detective Journagin’s
inadvertent comment on appellant not wanting to speak to him during the investigation was
“so detrimental to his defensive posture as to suggest the impossibility of removing it from
the jurors’ minds.” Id. at 757. Finally, the sixth factor also does not weigh in favor of
appellant. Appellant was acquitted of one charge and was eventually sentenced to serve
fifteen years out of a possible maximum sentence of twenty years’ imprisonment. We
conclude the results of the trial demonstrate that appellant was not harmed by Detective
Journagin’s indirect comment on appellant’s decision not to talk to him during the police
investigation. We overrule appellant’s third issue.5




       5
          Appellant’s citation of Wyborny v. State, 209 S.W.3d 285, 287 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d) does not change this result. In Wyborny, the appellate court reversed the defendant’s
conviction and remanded for a new trial because it held the trial court erred when it overruled the
defendant’s objection lodged when the prosecutor directly commented on the defendant’s post-arrest
silence. Id. Because that is not the situation we are presented with here, we conclude the facts are
distinguishable and Wyborny is not on point.
                                                  19
                                            CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s judgment.




                                                /s/     Margaret Garner Mirabal
                                                        Senior Justice



Panel consists of Justices Frost, McCally, and Mirabal.6
Do Not Publish — TEX. R. APP. P. 47.2(b).




      6
          Senior Justice Margaret Garner Mirabal sitting by assignment.


                                                  20
