                                   NO. 07-09-00391-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                   OCTOBER 15, 2010


                          ANTHONY C. PARSON, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2009-423,019; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION

      Appellant, Anthony C. Parson, was convicted of attempted 1 burglary of a

habitation with intent to commit murder or aggravated assault. 2 The indictment included

punishment enhancment allegations of two prior felony convictions. 3 At the punishment

hearing, appellant pleaded true to the enhancement allegations in the indictment and

the jury assessed appellant’s punishment at confinement in the Institutional Division of

the Texas Department of Criminal Justice for 50 years. Appellant subsequently filed
      1
          See TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2003).
      2
          See id. § 30.02(a)(1) (Vernon 2003).
      3
          See id. § 12.42(d) (Vernon. Supp. 2010), § 30.02(d) (Vernon 2003).
this appeal contending that the evidence was legally insufficient to support the

conviction and that the trial court had committed reversible error in allowing the State to

introduce evidence of an extraneous offense. We will affirm the conviction.


                          Factual and Procedural Background


       Appellant and Kathleen McCullough, the victim, had previously had a dating

relationship. Appellant and McCullough had broken up before the events of October 10,

2008. Earlier in the day on October 10, before the events that resulted in appellant’s

conviction, McCullough was doing her laundry at a laundromat when appellant came in

and began yelling at McCullough.       According to McCullough’s testimony, appellant

continued walking toward her and threatening her. McCullough stated she was backing

away from appellant when he grabbed her keys. He then left the laundromat in the

truck she had borrowed from her brother. McCullough called a relative who came to the

laundromat and took her back to her apartment.          Upon arriving at her apartment,

McCullough found the front door unlocked. While McCullough was trying to determine if

it was safe to go into her apartment, appellant drove up in the truck. Appellant again

began shouting at McCullough and was threatening her. After a short time, appellant

left the apartment complex. McCullough eventually went inside her apartment.


       A few hours later (the record is not clear as to exactly how much time passed)

appellant again returned to the apartment complex. Appellant went to McCullough’s

apartment door and tried to gain entry. Upon finding the door locked he began to beat

and kick on the door and shout threats at McCullough. McCullough became afraid for

her safety and called 911. While talking to the 911 operator, McCullough heard a

                                            2
window break, and she retreated to the closet. At some point, McCullough heard more

windows being broken and specifically heard appellant say, “Bitch, I’m going to kill you.”


       The police arrived in response to the 911 call and found appellant outside the

apartment. Appellant was detained and placed in the back of Officer Travis Denson’s

police car.   When appellant was placed in the rear seat of the police car, Denson

activated the video recording device and placed the camera so as to record appellant.

A copy of the video was played for the jury. In the video, appellant continued to curse

and threaten McCullough. Upon going back to the door of the apartment, Denson

observed that the couch had been pulled in front of the door and, upon entry, observed

the broken windows.


       Denson then made the decision to arrest appellant and transport him to the City

of Lubbock holding facility. During transportation to the city holding facility, appellant

continued to threaten to kill McCullough. Upon arrival at the city facility, appellant got

into a fight with two other inmates. This fight was the subject matter of the extraneous

offense of assault that the trial court allowed into evidence before the jury. Appellant’s

trial counsel objected to the introduction of the extraneous offense. However, the trial

court overruled the objection and allowed the testimony before the jury.


       The jury subsequently convicted appellant as charged in the indictment and

sentenced him to serve 50 years in the ID-TDCJ. Appellant appeals contending that the

evidence is legally insufficient to prove that appellant had the requisite intent at the time

of the attempted entry into the apartment. Additionally, appellant contends that the trial



                                             3
court abused its discretion in allowing evidence of the extraneous offense to come

before the jury. We will affirm the judgment of the trial court.


                             Legal Sufficiency of the Evidence


       Appellant’s first issue contends that the evidence was legally insufficient to

sustain the judgment.     Specifically, appellant challenges the legal sufficiency of the

evidence to prove the requisite intent of appellant at the time of the attempted burglary.


Standard of Review


       A legal sufficiency review consists of reviewing the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). However, the jury is the sole judge of the

weight and credibility of the evidence.      Clewis v. State, 922 S.W.2d 126, 132 n.10

(Tex.Crim.App. 1996) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.

1991)). We resolve inconsistencies in the evidence in favor of the verdict. Curry v.

State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).             Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152

S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same

for both direct and circumstantial evidence. Id.




                                              4
Analysis


      In order to convict for the offense of attempted burglary of a habitation with intent

to commit murder or aggravated assault, the State must prove that appellant attempted

to enter McCullough’s habitation without her effective consent with the intent to commit

the offense of murder or aggravated assault. There is no argument from appellant

regarding the elements of attempt, consent, or habitation. Appellant specifically argues

that there is legally insufficient evidence of his intent to commit murder or aggravated

assault. Accordingly, our analysis will be confined to that area of the evidence.


      When considering the question of intent to commit the act charged, we must first

realize that a person’s intent is within his own mind.      See Norwood v. State, 135

Tex.Crim. 406, 120 S.W.2d 806, 809 (1938). Next, in an effort to ascertain intent, we

may look to the outward expression of that intent through the words, acts, and conduct

of the individual in question. Id. Finally, it is from all of these circumstances that we

determine his intent. See Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App. 1998)

(citing Gray v. State, 55 Tex.Crim. 90, 114 S.W.635, 645-46 (1908)).


      When these considerations are applied to the facts of this case, we find that the

record reveals: 1) appellant accosted McCullough on two occasions on the day in

question; 2) each time appellant approached McCullough, he did so in a threatening

manner stating it was his intent to harm or kill her; 3) appellant was detained outside of

McCullough’s apartment while shouting threats; 4) the windows had been broken out of

McCullough’s apartment, and entry had been attempted by kicking the door in; 5)

McCullough recognized appellant as the one attempting to get in the apartment; 6) after

                                            5
appellant’s arrest, he continued to make threats to kill McCullough. In short, from the

observation of appellant’s conduct and speech, a rational jury could have concluded

beyond a reasonable doubt that appellant intended to kill or seriously injure

McCullough. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Therefore, the

evidence was legally sufficient. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at

620. Appellant’s first issue is overruled.


                                   Extraneous Offense


       Appellant’s last issue deals with the trial court’s admission of extraneous offense

testimony. The trial court permitted the State’s attorney to ask Denson if appellant had

assaulted two other inmates upon arrival at the City of Lubbock holding facility.

Appellant contends that the admission of the evidence was an abuse of discretion

because such testimony was not relevant, and even if relevant, its probative value was

clearly outweighed by its prejudicial impact.


Standard of Review


       We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2009).

A trial court abuses its discretion when the decision to admit the evidence in question

lies outside the zone of reasonable disagreement. Id.


Law of Extraneous Offenses


       As a legal maxim, extraneous offenses are not admissible during a criminal trial,

especially to prove the character of a defendant and that the defendant acted in
                                                6
conformity with that character trait at the time in question. See TEX. R. EVID. 404(b). 4

There are exceptions to this general prohibition.        Specifically, extraneous offense

evidence is admissible if it tends to prove or disprove an element of the offense. See

De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009). This is the inquiry into

the relevance of the evidence. See Rule 404(b); De La Paz, 279 S.W.3d at 343. The

proponent for admissibility of the extraneous offense evidence must carry the burden of

establishing the admissibility of such evidence. See Montgomery v. State, 810 S.W.2d

372, 387 (Tex.Crim.App. 1991) (op. on reh’g). Once the relevance is established, the

evidence may still be excluded if its probative value is substantially outweighed by its

unfair prejudicial effect.    Rule 403; Santellan v. State, 939 S.W.2d 155, 169

(Tex.Crim.App. 1997).


       If a rule 403 objection is made, the trial judge must then conduct a balancing test

to ascertain whether or not the probative value is substantially outweighed by the

prejudicial impact of the proffered extraneous offense. Id. In conducting this balancing

test the trial court considers the following: 1) how compellingly the extraneous offense

evidence serves to make the fact of consequence more or less probable; 2) the

potential for this evidence to impress the jury in some irrational but indelible way; 3) the

time required to develop the evidence; and 4) the force of the proponent’s need for the

evidence. Id.




       4
         Further reference to the Texas Rules of Evidence will be by reference to “Rule
__” or “rule ___.”
                                             7
Analysis


      Our first inquiry is whether or not the proffered extraneous evidence is relevant.

Rule 404(b); De La Paz, 279 S.W.3d at 343. A review of the record reflects that the

State had a substantial amount of evidence that bore upon the intent of appellant to

murder or assault McCullough at the time he attempted the unauthorized entry into the

apartment. Further, the quality of the evidence in demonstrating the intent of appellant

was much more direct and persuasive than evidence of assaults involving strangers at

some time removed from the events that led to appellant’s arrest. A further review of

the closing arguments reveals that even the proponent of the evidence must have

thought that it was not particularly important, for it is barely even mentioned during

those arguments. What was the relevance of this evidence, especially in light of the

entire record? Our review yields the conclusion that this extraneous offense evidence

was only minimally relevant. For purposes of this opinion, we will treat the evidence as

relevant, as it did have some propensity to prove the element of intent. See De La Paz,

279 S.W.3d at 343.


      Therefore, we now turn to the balancing test pursuant to rule 403. Santellan, 939

S.W.2d at 169.       Our first inquiry into the strength of the evidence results in a

determination that the evidence in question, a subsequent assault of other inmates at a

time after the offense being considered, is only minimally compelling.       See id.   In

addition, we find the force of the State’s need for this evidence to be barely above

negligible. See id. The presentation of the evidence required only a minimal amount of

time, and, to that extent, did not detract the jury from the real issues at hand. See id.

                                           8
However, when you review the entire record, the most that can be said for this

extraneous offense evidence is that it proved appellant’s propensity to be aggressive

and perpetrate assaults. Thus, it did have the potential for impressing the jury in an

irrational but indelible way. See id. As such, this evidence should not have been

placed before the jury and to do so was error. Rule 403.


         However, our finding that the admission of the evidence was error does not end

the inquiry. Rather, we must continue the inquiry to determine whether the admission

had an effect on appellant’s substantial rights by a Rule 44.2(b) harm analysis for non-

constitutional errors. See TEX. R. APP. P. 44.2(b); 5 Haley v. State, 173 S.W.3d 510, 518

(Tex.Crim.App. 2005). A substantial right is implicated when the error had a substantial

and injurious effect on the jury’s verdict.        Haley, 173 S.W.3d at 518.       In order to

ascertain the effect the error may have had on the jury’s verdict, we are directed to

consider everything in the record, including all of the evidence received by the jury and

how the alleged error might be considered in connection with other evidence supporting

the verdict. See id.


         When we apply the analysis required to the facts of this case, we find that we

have a significant amount of evidence that went to the issue of appellant’s intent.

5
    Rule of Appellate Procedure 44.2 provides:

         (a) Constitutional Error. If the appellate record in a criminal case reveals
             constitutional error that is subject to harmless error review, the court of
             appeals must reverse a judgment of conviction or punishment unless
             the court determines beyond a reasonable doubt that the error did not
             contribute to the conviction or punishment.

         (b) Other Errors. Any other error, defect, irregularity, or variance that does
             not affect the substantial rights must be disregarded.
                                               9
Further, the proponent of the evidence in question mentioned the objected-to evidence

only minimally during closing arguments. A complete review of the evidence leads us to

the conclusion that the error in admitting the evidence of the assaults at the city holding

facility did not affect appellant’s substantial rights. See Rule 44.2(b). Therefore, the

error was harmless. See Haley, 173 S.W.3d at 518. Accordingly, appellant’s final issue

is overruled.


                                       Conclusion


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




                                                        Mackey K. Hancock
                                                             Justice



Do not publish.




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