

NO. 07-09-00226-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL E
 

MARCH
9, 2011
 

 
RYAN JOHN KELLEY, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 251ST DISTRICT COURT OF
RANDALL COUNTY;
 
NO. 20,265-C; HONORABLE ANA ESTEVEZ, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK, J., and BOYD, S.J.[1]
 
 
MEMORANDUM OPINION
 
Appellant, Ryan John Kelley, appeals
the trial court’s judgment of conviction for the state jail felony offense of
causing injury to an elderly person by reckless conduct.[2]  Appellant was sentenced to twenty-two months
in a state jail facility.  We will
affirm.
 
Factual and Procedural History
            On
October 18, 2008, appellant wanted to pick up the daughter he shared with
Tiffany Duvak. 
Whether such an arrangement was pursuant to an informal agreement[3]
between appellant and Duvak, as appellant asserts, or
whether it was, as Duvak characterizes it, an
unannounced visit in further attempt to persuade Duvak
to let him take his daughter for a while, the visit did not end well.
            Appellant
arrived at the home where Duvak and their daughter
lived with Duvak’s grandparents, Janet Kay (Kay) and
Forrest Glidewell. 
At first, the visit went well, but the mood and interaction soon
soured.  Whether pursuant to the original
agreement or contrary to Duvak’s wishes from the
beginning, appellant had decided to take his daughter.  There is some dispute as to the details of
how, precisely, a conflict arose but it did. 
Appellant ended up leaving the house and heading toward his vehicle with
his distressed two-year-old daughter.  Duvak and the Glidewells
attempted to prevent him from leaving.  Duvak and Kay followed him, and shortly thereafter Forrest
joined them at or near appellant’s car where a fracas ensued.  Though, again, the accounts differ as to the
details of the incident, witnesses testified and appellant admitted that,
during the fray, he punched Forrest in the face and shoved the
sixty-six-year-old Kay a number of times, causing her to fall to the street and
injure her elbow.
            As
a result of the altercation with Kay, appellant was charged with causing injury
to an elderly person.  At trial,
appellant testified and asserted that he acted in self-defense.  In support of his defense, he claimed that it
was because Kay repeatedly pulled at and hit him that he shoved her, believing
it was immediately necessary to protect himself from her.  The State then sought to introduce evidence
that appellant had been convicted earlier in 2008 of misdemeanor assault
against a female.  Defense counsel
unsuccessfully objected to admission of this evidence on the bases of Rules
403, 404, and 609 of the Texas Rules of Evidence,[4]
and the evidence was admitted.
            The
jury found appellant guilty of the lesser-included offense of causing injury to
an elderly person by reckless conduct. 
The jury then assessed punishment at twenty-two months in a state jail
facility.  Appellant does not challenge
the sufficiency of the evidence to support said conviction.  Instead, he focuses his three issues on the
trial court’s admission of evidence that appellant was previously convicted for
assault.  He brings to this
Court three issues, all of them associated with admission of such
evidence.  First, he contends the trial
court abused its discretion by admitting evidence of the prior assault
conviction when the conviction did not involve a crime of moral turpitude
because the victim of that assault was a female but was not his wife.  Secondly, appellant maintains that the trial
court abused its discretion by admitting evidence of the assault conviction
because the probative value of such evidence was substantially outweighed by
the danger of unfair prejudice.  Finally,
appellant contends that the trial court abused its discretion by admitting
evidence of the assault conviction for the purpose of impeachment where such
conviction is not probative of appellant’s credibility and such conviction
substantially prejudiced appellant by implying to the jury appellant’s
propensity and character.
Standard of Review
            We
review a trial court’s decision to admit or exclude evidence for abuse of
discretion.  Shuffield
v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.
2006).  A trial court does not
abuse its discretion if its decision is within the zone of reasonable
disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007); Montgomery v. State, 810 S.W.2d
372, 391 (Tex.Crim.App. 1991) (op. on reh’g).  We
will sustain the trial court’s decision if that decision is correct on any
theory of law applicable to the case.  Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.
1990).
Analysis
            Initially,
the trial court ruled that the evidence was admissible under Rule 609 to
impeach appellant.  Prior to admission of
the evidence, however, the trial court held another hearing outside the
presence of the jury so as to further develop the issues surrounding the
prejudicial effect and probative value under Rules 403 and 404.  At this second hearing, the trial court again
expressed concern regarding the potential prejudice that evidence of an assault
against a female could carry with it.  It
did conclude, however, that the evidence was relevant to show intent and to
rebut appellant’s claim of self-defense. 
Consequently, after careful consideration, the trial court opted to
lessen that potential by excluding evidence of the gender of the victim and
details of the assault and, instead, permitted the State to introduce only
evidence of the date and type of offense. 
Consistent with its ruling that the evidence would be admitted for the
purposes of rebutting appellant’s self-defense theory and illuminating the
issue of intent, the trial court included an instruction in its charge to the
jury that evidence of other crimes could only be considered, if considered at
all, “for the purpose of determining motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”  Such purposes are consistent with admission
on the basis of Rule 404(b), and, with that, we look first to appellant’s
second and third issues concerning the probative value and prejudicial effect
of the evidence and the tendency such evidence had in terms of establishing
appellant’s propensity and character conformity.
Rule 404(b)
            Rule
404 provides that “[e]vidence of other crimes, wrongs
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.”  Tex. R. Evid.
404(b). 
Evidence of extraneous misconduct may be admissible, however, when such
evidence is relevant to a non-character-conformity fact of consequence in a
case, such as establishing motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Id.; Berry v.
State, 233 S.W.3d 847, 858 (Tex.Crim.App. 2007); Robbins
v. State, 88 S.W.3d 256, 259 (Tex.Crim.App.
2002).  Further, although not
specifically delineated in Rule 404(b), extraneous offense evidence may also be
admissible when a defendant asserts an affirmative defense, such as
self-defense.  See Johnston v.
State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004); Robbins,
88 S.W.3d at 259.
            Here,
appellant admits having shoved Kay a number of times and acknowledges that she
fell to the ground as a result of having been shoved.  Appellant explained that, as he left the
house with the daughter, Kay and Duvak were “clawing
at [his] collar.”  He added that Kay
slapped him twice as he tried to get into his vehicle.  He testified that he shoved Kay only in an
effort to protect himself and to allow him to close the door and get away from
her.  Appellant clearly asserted
self-defense as a defense to the charges against him.  With that, the complained-of evidence had a
purpose apart from character conformity: it was relevant to rebut appellant’s
self-defense theory.  See Tex. R. Evid.
404(b); Johnston, 145 S.W.3d at 219.
            Because
it is well-established that the State was permitted to rebut appellant’s claim
of self-defense with evidence of other crimes, wrongs, or acts, or evidence of
violent acts in which appellant was the aggressor, we cannot say that the trial
court abused its discretion by admitting evidence of the prior assault
conviction for such purposes.  See
Lemmons v. State, 75 S.W.3d 513, 522–23
(Tex.App.—San Antonio 2002, pet. ref’d)
(holding that extraneous offense evidence offered by the State to show murder
defendant was aggressor in the past was relevant to rebut his self-defense
claim).  We overrule appellant’s issue.
Rule 403
            Appellant
further contends that the evidence should have been excluded under Rule
403.  See Tex. R. Evid. 403.  Although admissible under Rule 404(b), the
same evidence may be inadmissible under Rule 403 if the probative value of such
evidence is substantially outweighed by unfair prejudice.  Prince v. State, 192 S.W.3d 49, 56 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d). The following factors are taken into consideration
when undertaking a Rule 403 analysis: (1) the inherent probative force of the
proffered evidence; (2) the proponent’s need for that evidence; (3) any
tendency of the evidence to suggest decision on an improper basis; (4) any
tendency of the evidence to confuse or distract the jury from the main issues;
(5) any tendency of the evidence to be given undue weight by a jury that has
not been equipped to evaluate the probative force of the evidence; and (6) the
likelihood that presentation of the evidence will consume an inordinate amount
of time or merely repeat evidence already admitted.  Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.Crim.App.
2006).  Rule 403 favors admission
of relevant evidence, and we presume that relevant evidence will be more
probative than prejudicial.  Shuffield,
189 S.W.3d at 787.
            Here,
whether appellant acted in self-defense was a pivotal issue at trial, perhaps
the only issue, since appellant admitted having committed the acts alleged but
claimed to have done so in self-defense. 
So, the extraneous-offense evidence was probative, and the State had
considerable need for this evidence in that it had little other evidence to
rebut appellant’s self-defense claim.[5]  See Giglioblanco,
210 S.W.3d at 641–42. 
In light of the parties’ positions at trial, the evidence of the prior
assault conviction was quite probative.
            By
that same reasoning, the evidence was also prejudicial to appellant.  However, to say that the evidence was
prejudicial is not to say that the evidence was inadmissible.  See Casey v. State, 215 S.W.3d 870, 883 (Tex.Crim.App.
2007).  Simply because the evidence was
prejudicial does not mean that its probative value was substantially outweighed
by “unfair prejudice” under Rule 403. 
The Texas Court of Criminal Appeals has explained the meaning of “unfair
prejudice” under Rule 403:
Unfair prejudice refers not to an adverse or detrimental effect of
evidence but to an undue tendency to suggest a decision on an improper basis,
commonly an emotional one.  Unfair
prejudice does not arise from the mere fact that evidence injures a party’s
case.  Virtually all evidence that a
party offers will be prejudicial to the opponent’s case, or the party would not
offer it.  Evidence is unfairly
prejudicial only when it tends to have some adverse effect upon a defendant
beyond tending to prove the fact or issue that justifies its admission into
evidence.  The prejudicial effect may be
created by the tendency of the evidence to prove some adverse fact not properly
in issue or unfairly to excite emotions against the defendant.
Id. (Citations omitted).  Further, we add that the trial court gave the
jury a limiting instruction that directed the jury to consider the evidence
only for permissible purposes, not to show that appellant acted in conformity
with such evidence.  See Garcia
v. State, 201 S.W.3d 695, 704 (Tex.Crim.App.
2006).  Unless the record establishes
otherwise, we presume that the jury followed the trial court’s
instruction.  See Colburn v.
State, 966 S.W.2d 511, 520 (Tex.Crim.App.
1998).
            The trial court carefully considered the issues
surrounding admission of evidence related to the prior assault conviction and
concluded that the State could mention only the date and nature of the
conviction.  The trial court specifically
prohibited the State from mentioning the gender of the victim or any other
details surrounding the offense.  The
State’s presentation of the evidence consumed three lines of the record.  Further, as stated, the State’s need for this
evidence was rather pressing because there was little other evidence that could
serve to rebut appellant’s theory of self-defense.  Based on these considerations, we cannot say
that presentation of this evidence was likely to consume an inordinate amount
of time or merely repeat evidence already admitted. 
            The
trial court could have reasonably concluded that the evidence was not unfairly
prejudicial and did not have a tendency to suggest a decision on an improper
basis or to confuse or mislead the jury. 
Considering the relevant factors, we conclude that the trial court did
not abuse its discretion by admitting evidence of the prior assault conviction
over appellant’s Rule 403 objection.  We
overrule appellant’s second issue.
Rule 609
            By
his remaining issue, appellant maintains that the trial court abused its
discretion by concluding that the prior assault was a crime of moral turpitude
and was, thus, available as impeachment evidence under Rule 609.  With respect to impeaching the credibility of
witnesses by introduction of evidence of convictions involving moral turpitude,
Rule 609 provides as follows:
For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime shall be admitted if elicited
from the witness or established by public record but only if the crime was a
felony or involved moral turpitude, regardless of punishment, and the court
determines that the probative value of admitting this evidence outweighs its
prejudicial effect to a party.
Tex.
R. Evid. 609(a).  Appellant contends that, because the female
victim of the prior assault was not his wife, such conviction did not involve a
crime of moral turpitude and, therefore, was unavailable to impeach him under
Rule 609.
            Because
we have concluded that the evidence was admissible under Rules 403 and 404(b),
we need not determine whether the evidence was also admissible under Rule
609.  See Romero, 800
S.W.2d at 543; see also Tex. R.
App. P. 47.1.
Conclusion
            Having
overruled appellant’s issues, we affirm the trial court’s judgment.
 
 
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice




 
Do
not publish.  




[1]John T. Boyd, Chief Justice (Ret.),
Seventh Court of Appeals, sitting by assignment.  


[2] Tex.
Penal Code Ann. § 22.04(a)(3), (f) (West Supp.
2010).  An elderly person is defined as a
person sixty-five years of age or older. 
See id. § 22.04(c)(2).
 


[3]
It appears appellant and Duvak had no formal custody order in place.


[4]
All subsequent references to
“Rule” or “Rules” refer to the Texas Rules of Evidence.


[5]
Arguably, however, it did have
some other evidence that could be said to rebut appellant’s theory of
self-defense.  For instance, the jury did
hear some evidence referring to Forrest’s understanding that a protective order
was in effect against appellant.  The
jury also heard conflicting evidence on whether appellant first hit Duvak as he grabbed the daughter and left the house.  Further, one neighbor who witnessed the
incident testified that another neighbor had restrained appellant to some
degree when Kay came out and began to yell at him and, apparently, spit on or
toward him.  In response, appellant broke
free and shoved Kay.


