Opinion filed January 17, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-17-00010-CR
                                     __________

                AUBREY DEAN PATTERSON, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR44057


                      MEMORANDUM OPINION
      The jury convicted Appellant of the third-degree felony offense of bail
jumping and failure to appear. See TEX. PENAL CODE ANN. § 38.10(a) (West 2016).
The trial court found the State’s enhancement allegations charging Appellant as a
habitual offender to be true, and it assessed his punishment at confinement for thirty
years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant brings two issues on appeal. We affirm.
                                         Background Facts
        Appellant was indicted for the felony offense of theft. He was released from
custody on that charge on August 1, 2014. During his release, Midland County
Pretrial Services (MCPS) supervised Appellant under a pretrial bond.1 The 385th
District Court in Midland County later set Appellant’s felony arraignment hearing
for September 26, 2014, at 8:30 a.m. Appellant testified that he was aware that he
needed to appear in court on this date and time.
        In the early morning hours of September 26, 2014, Appellant was working the
“morning tour” for his employer, a drilling company, on a rig located thirty-four
miles north of Big Spring. Appellant testified that he left work around 5:50 a.m. that
morning and headed to the courthouse in Midland to attend the arraignment hearing.
He stated that when he was twelve miles north of Big Spring, his vehicle sustained
a flat tire. He contacted his attorney’s office to explain the situation. Appellant
testified that he was not able to reach his attorney but spoke with someone who he
believed was a secretary.
        Appellant testified that he told this person that he did not know “how long it
would take to get back to Midland.” Appellant testified: “[A]ll I was led to believe
was that it would actually be notified to my attorney at the time and then be
rescheduled. They’d notify me when. That’s all I knew then.” After changing his
tire, Appellant arrived in Midland at 9:25 a.m. Because he believed that his hearing
would be rescheduled, he went straight to the tire shop. Appellant did not appear in
court that day.




        1
         MCPS secures the release of inmates from jail on a pretrial bond. MCPS supervises these
individuals and ensures that they abide by the terms of their release. A person released under this program
is required to regularly report to his or her assigned officer and is made aware of any upcoming court
appearances.

                                                    2
      Appellant’s former attorney in the underlying theft case, Wayne Frost, also
testified at Appellant’s trial. Frost testified that he was present for Appellant’s
arraignment hearing and waited for Appellant for about an hour. According to Frost,
Appellant never contacted him that day to explain why he failed to appear. He
testified that the next time Appellant spoke with him was “[a] day or two later.”
Frost stated that the only reason Appellant gave for missing the arraignment hearing
was “car trouble.” Frost further explained that there was no miscommunication
between the trial court and his office or between himself and Appellant.
      Appellant admitted that he was required to contact MCPS to report any
problems, based on the conditions of his bail. However, he did not contact MCPS
on September 26, 2014, about the flat tire. He testified that he did not call MCPS
because he believed that there was no longer an issue due to his understanding that
the hearing would be rescheduled. Given his belief, Appellant also did not think to
contact the trial court to check on his status. When Appellant reported to MCPS the
following Monday, on September 29, 2014, he was arrested for his failure to appear
at the hearing.
      Over Appellant’s objections, the State presented evidence during the
guilt/innocence phase of twelve prior convictions, which included multiple burglary-
related offenses and one offense for unauthorized use of a vehicle. Appellant argued
that the extraneous-offense evidence “from 24 years ago” was “unduly prejudicial.”
The State responded that Appellant’s prior convictions were admissible under
Rule 404(b) of the Texas Rules of Evidence to show his “plan, motive, [and] lack of
mistake . . . in regards to this offense of fail[ure] to appear.” In particular, the State
argued that the evidence was relevant to show Appellant’s lack of mistaken belief
and to rebut Appellant’s defense that he simply relied upon the statements
purportedly made by a secretary to forgo attending a scheduled court appearance.
The trial court overruled Appellant’s objections.         In doing so, the trial court
                                            3
repeatedly instructed the jury that it was to consider the prior convictions for the
limited purpose “of proving motive, opportunity, intent, preparation, knowledge,
identity or absence of mistake and for no other purpose.”
                                       Analysis
      In his first issue, Appellant contends that the evidence was insufficient to
support his conviction for failure to appear. Specifically, Appellant asserts that he
lacked the culpable mental state to be found guilty of the offense of failure to appear
because he had a reasonable excuse for such failure.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
                                           4
      A person commits the offense of failure to appear if he has been lawfully
released from custody, with or without bail, on condition that he subsequently
appear, and then he intentionally or knowingly fails to appear in accordance with the
terms of his release. PENAL § 38.10(a). The person may defend himself against the
charge by showing that he had a “reasonable excuse” for his failure to appear. Id.
§ 38.10(c). A reasonable excuse is one that an ordinary and prudent person would
rely on under the same or similar circumstances to justify his failure to make a court
appearance. See Gallegos v. State, 828 S.W.2d 577, 579 (Tex. App.—Houston [1st
Dist.] 1992, no pet.).
      The defendant bears the initial burden of producing some evidence to support
his defense. See PENAL § 2.03(c); Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.
App. 2003). Once the defendant produces such evidence, the State then bears the
burden of persuasion to disprove the defense. Saxton v. State, 804 S.W.2d 910, 913
(Tex. Crim. App. 1991). The burden of persuasion does not require the production
of evidence but, rather, only requires the State to persuade the jury beyond a
reasonable doubt. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). A
jury verdict of guilty results in an implicit finding against the defensive theory.
Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
      The defendant cannot be convicted of intentionally or knowingly committing
the offense of failure to appear absent proof that he had notice of the proceeding at
which he failed to appear. Richardson v. State, 699 S.W.2d 235, 238 (Tex. App.—
Austin 1985, pet. ref’d) (per curiam) (op. on reh’g). The undisputed fact that the
defendant did have notice, however, is sufficient to permit the trier of fact to find
that his subsequent failure to appear was intentional or knowing conduct. See Hill v.
State, 760 S.W.2d 369, 370 (Tex. App.—Austin 1988, no pet.).
      Appellant does not dispute that he had notice of the arraignment hearing.
Rather, Appellant asserts that he had a reasonable excuse for his failure to attend.
                                          5
He claims that he lacked “the requisite criminal intent” to commit the offense of bail
jumping and failure to appear because his failure to attend the arraignment hearing
was “simply a mistake and accident[] as evidenced by the trial court testimony and
evidence.” In support, he argues that he complied with all prior bond requirements
underlying his release and encountered “vehicle problems” on the day of the
arraignment hearing. In light of his previous compliance record and vehicle issues,
Appellant argues that it was “reasonable to assume” that his failure to attend the
arraignment hearing was for “a legitimate excusable reason.” Thus, he argues that
he “acted as an ordinary and prudent person relying on the vehicle circumstances to
justify his failure to make the [a]rraignment hearing.”2
        Whether an excuse is reasonable is generally a fact issue for the jury. Luce v.
State, 101 S.W.3d 692, 694 (Tex. App.—Texarkana 2003, no pet.). The jury is the
sole judge of the weight and credibility of the evidence. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012). It is within the jury’s province to believe
some, all, or none of the testimony presented by the parties. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). Because the jury is the sole judge of the
witnesses’ credibility, we defer to that resolution when asked to review the
sufficiency of the evidence. See Brooks, 323 S.W.3d at 899.
        Apart from Appellant’s own testimony, there was no evidence at trial to
support that he encountered a flat tire on the way to court or that he had a
conversation with a secretary in his attorney’s office. The jury could have concluded
that Appellant’s testimony regarding these events was not credible. Considering all
the evidence in the light most favorable to the verdict, we conclude that a rational


        2
          Appellant does not expressly rely on his conversation with the secretary to support his reasonable-
excuse argument. Given Appellant’s broad statement that “the trial court testimony and evidence” supports
his lack of criminal intent, we will assume that he is arguing that his conversation with the secretary and,
in turn, his belief that his hearing would be rescheduled also support his reasonable-excuse defense.

                                                     6
trier of fact could have found all the elements of the offense of bail jumping and
failure to appear beyond a reasonable doubt and could have rejected Appellant’s
“reasonable excuse” defense beyond a reasonable doubt. We overrule Appellant’s
first issue.
       In his second issue, Appellant contends that the trial court abused its discretion
when it admitted his prior convictions into evidence. He argues that their admission
violated both Rule 404(b) and Rule 403 of the Texas Rules of Evidence. First, he
contends that the prior convictions are not relevant to his failure-to-appear charge
apart from their tendency to prove conduct in conformity with his character. Second,
he asserts that the probative value of the convictions was substantially outweighed
by the danger of unfair prejudice.
       We review a trial court’s evidentiary ruling under an abuse of discretion
standard. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016). “A trial
judge abuses his discretion when his decision falls outside the zone of reasonable
disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). We
will uphold the trial court’s ruling on the admission or exclusion of evidence if the
ruling was proper under any legal theory or basis applicable to the case. Devoe v.
State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
       Extraneous-offense evidence is admissible under both Rule 404(b) and
Rule 403 if that evidence satisfies a two-prong test: (1) “whether the extraneous
offense evidence is relevant to a fact of consequence in the case apart from its
tendency to prove conduct in conformity with character”; and (2) “whether the
probative value of the evidence is not substantially outweighed by unfair prejudice.”
Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); see also De La Paz v.
State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009). If the evidence satisfies
this two-prong test, a trial court’s ruling is generally within the zone of reasonable
disagreement. De La Paz, 279 S.W.3d at 344.
                                            7
      Rule 404(b) prohibits the admission of extraneous-offense evidence at the
guilt phase of a trial to prove that a defendant committed the charged offense in
conformity with bad character. Devoe, 354 S.W.3d at 469 (citing TEX. R. EVID.
404(b)). However, extraneous-offense evidence may be admissible when it has
relevance apart from character conformity. Id. (citing Moses v. State, 105 S.W.3d
622, 626 (Tex. Crim. App. 2003)). Such evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.”         TEX. R. EVID. 404(b)(2).
Evidence is relevant if it has “any tendency to make a fact more or less probable than
it would be without the evidence.” TEX. R. EVID. 401. Additionally, one well-
established rationale to admit evidence of extraneous offenses is to rebut a defensive
theory that negates one of the elements of the offense. De La Paz, 279 S.W.3d at
343; Martin, 173 S.W.3d at 466.
      Appellant argues that his twelve prior convictions are not relevant apart from
character conformity because they are more than twenty years old and none of them
deal with a failure-to-appear offense. The State, however, contends that Appellant’s
prior convictions are relevant to show Appellant’s lack of mistaken belief. In
particular, the State argues that “[a] person with as much involvement with the
criminal justice system as Appellant had would not have simply relied on an
individual—with no official connection with the court system—telling him that [his]
hearing would be re-scheduled.” Indeed, Appellant’s twelve prior convictions
illuminate his familiarity with the processes of the legal system. He testified that, in
those earlier cases, he did appear in court for his arraignment hearings. He stated
that he did so because he was aware that he was required to appear. Thus, we
conclude that Appellant’s prior convictions are relevant to rebut his defensive theory
that his failure to appear in this case was “simply a mistake and accident[].”


                                           8
      Even if extraneous-offense evidence is relevant under Rule 404(b), the trial
court may exclude it under Rule 403 if its probative value is substantially
outweighed by a danger of unfair prejudice. TEX. R. EVID. 403; see Martin, 173
S.W.3d at 467. Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial. See
Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007). A Rule 403 balancing test includes the
following factors: (1) how compellingly the extraneous-offense evidence serves to
make a fact of consequence more or less probable; (2) the potential the other offense
evidence has to impress the jury in some irrational but nevertheless indelible way;
(3) the time the proponent will need to develop the evidence, during which the jury
will be distracted from consideration of the indicted offense; and (4) the force of the
proponent’s need for this evidence to prove a fact of consequence, i.e., does the
proponent have other probative evidence available to help establish this fact, and is
this fact related to an issue in dispute. De La Paz, 279 S.W.3d at 348–49.
      In applying the factors listed above, we conclude that the admission of
Appellant’s prior convictions did not violate Rule 403. Although Appellant’s prior
convictions were more than twenty years old, they served the purpose of highlighting
Appellant’s familiarity with the legal system and his awareness of the importance of
attending scheduled court appearances.        Because Appellant attended his prior
hearings, the trial court could have reasonably concluded that the State needed the
evidence to rebut Appellant’s defensive theory that he simply relied upon the
statements purportedly made by a secretary at his attorney’s office when he failed to
appear. Further, the record does not reflect that the evidence of Appellant’s prior
convictions had the potential to impress the jury in an irrational manner. Although
the prior convictions did not relate directly to Appellant’s failure-to-appear offense,
the trial court repeatedly instructed the jury that it was to consider the prior
                                          9
convictions only for a limited purpose, namely to prove lack of mistake or accident.
The evidence also did not consume an inordinate amount of time to present.
Accordingly, the trial court’s admission of the prior convictions was not outside the
zone of reasonable disagreement. The trial court did not abuse its discretion when
it admitted the extraneous-offense evidence. We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE




January 17, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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