                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00036-CR

MICHAEL EARL LANE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the County Court at Law
                              Navarro County, Texas
                            Trial Court No. C34473-CR


                          MEMORANDUM OPINION


      In three issues, appellant, Michael Earl Lane, challenges his conviction for

aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021(a) (West Supp. 2015).

Specifically, appellant contends that:   (1) the evidence supporting his conviction is

insufficient; (2) the trial court erred in excluding evidence that the victim purportedly

exchanged sex for drugs on numerous occasions; and (3) the trial court erred in failing to

instruct the jury that it could consider extraneous-offense evidence for only impeachment

purposes. Because we overrule all of appellant’s issues on appeal, we affirm.
                              I.      SUFFICIENCY OF THE EVIDENCE

        In his first issue, appellant contends that the evidence supporting his conviction is

insufficient because the victim was unable to identify her attacker, and because the victim

failed to rebut his claim of consensual sex on the day of the alleged sexual assault.

A.      Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly 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. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:      “Circumstantial evidence is as probative as direct evidence in


Lane v. State                                                                                 Page 2
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        The State is required to prove beyond a reasonable doubt that the accused is the

person who committed the charged crime. Roberson v. State, 16 S.W.3d 156, 167 (Tex.

App.—Austin 2000, pet. ref’d) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim.

App. 1984); Rice v. State, 801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)).

Identity may be proved by direct or circumstantial evidence. Id. (citing Earls v. State, 707

S.W.2d 82, 85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—

Fort Worth 1999, pet. ref’d); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986,

no pet.)). “In fact, identity may be proven by inferences.” Id. (citing United States v.

Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—

Lane v. State                                                                            Page 3
Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San

Antonio 1995, pet. ref’d) (explaining that the jury may use common sense and apply

common knowledge, observation, and experience gained in ordinary affairs of life when

giving effect to inferences that may reasonably be drawn from evidence).

        Officer Stan Eddington of the Corsicana Police Department spoke with K.C., the

victim in this case, regarding the incident. He recalled that K.C. had a cut on her thumb

and that she stated that she knew the assailant but could not remember his name. She

later described the assailant as “approximately 25 to 30 years old, 5’8” to 5’10”, ten. I

believe she said short hair, black male.” She also told Officer Eddington that the assailant

was wearing a black shirt and jean shorts on the night of the incident. After further

questioning, K.C. informed Officer Eddington that the assailant was the nephew of Paul

Moore.

        Kenneth Dunagan, a narcotics detective with the Corsicana Police Department,

responded to a dispatch to secure a crime scene on the morning of July 21, 2011. Detective

Dunagan received details of K.C.’s allegations and a description of the suspect—

“Approximately 5’8” to 5’10”, skinny, short haircut, black male wearing a black t-shirt,

and I believe, blue jean shorts.” While investigating the scene, Detective Dunagan

observed a blood trail near an air conditioning unit—where the incident allegedly took

place. While searching the rear of a building at the scene, Detective Dunagan was

approached by appellant and Simpson Thompson. Detective Dunagan recalled that




Lane v. State                                                                         Page 4
appellant’s appearance matched the description provided by dispatch.                        Moreover,

appellant stated that he is Paul Moore’s nephew.1

        The record also includes K.C.’s statement about the incident, wherein she noted:

        I am allowing Detective Clout to write this for me as I tell him. I was
        walking on East First past the Salvation Army. This guy was walking
        towards me. I know he is Paul Moore’s nephew, but I don’t know his name.
        The guy asked me to walk him back to his house. I didn’t see no harm in it,
        so I did.

              When we got in the yard, the guy pulled a knife out of his pocket.
        The guy said, “You going to give me some.” He was standing behind me
        now and he put the blade up to my chest. I said, “No, I’m not.”

               He started saying that I was going to do it and he didn’t mind going
        back to prison. He forced me to the back and we walked behind the house
        and across a little gully. I went through a whole [sic] in a fence that was
        covered by a piece of plywood.

                We went behind a building by an air conditioner. He made me take
        of [sic] my shorts and underwear down to my ankles and made me get on
        my hands and knees. I was resisting as much as I could. I was clenching
        and moving, trying to keep him from getting it in.

               He was saying things like, “Bitch, quit playing. I’m going to hurt
        you if you keep on. We could have been through.” He finally got it in. He
        was trying to grab my arms and I thought he was trying to cut me, so I
        grabbed at his arms, but I grabbed the blade by accident and cut my thumb
        open.[2]

               Then he started saying, “I ain’t got nothing to lose now, Bitch. I
        ought to take care of my business now.” He went ahead and finished and
        got his nut. He nutted me.




        Appellant argues that this description is not sufficient because Paul Moore has several nephews,
        1

many of whom were present at Moore’s house on the evening in question.

        2When examining K.C. for sexual assault, nurses did not find any physical indications of assault,
other than the injury to K.C.’s thumb.

Lane v. State                                                                                     Page 5
              We got up and he went back through the fence and I heard the dog
        barking. I got up and pulled my clothes up and walked on feet into First.
        And when I got past the Salvation Army, I called the police.

K.C. also testified that she could not identify appellant from a photo lineup or in open

court as the assailant in this case.

        Leslie Johnson, formerly a forensic scientist at the Texas Department of Public

Safety crime laboratory in Waco, Texas, testified that she analyzed specimens from both

appellant and K.C. and concluded to a reasonable degree of scientific certainty that sperm

collected from K.C.’s vagina belonged to appellant.3                    In response to subsequent

questioning, Johnson stated that her analysis indicated that appellant was the last person

to deposit semen in K.C.

        Despite this, appellant directs us to evidence provided by his witnesses.

Specifically, Shaffer Lane, appellant’s brother, testified that he was with appellant the

entire day in question. Simpson Thompson, appellant’s uncle, recalled seeing appellant

and K.C. hugging and kissing and going into another room. Vassey Lane, appellant’s

grandmother, remembered that appellant was in and out of her house and Paul Moore’s

house on the day in question and that she overheard K.C. yelling and cussing at Moore a

few days after the alleged incident. Vassey testified that K.C. exclaimed, “I’m going to

call the police on you and have the police lock you up or else I’m going to tell them you

raped me.” Appellant testified that he heard K.C. repeat this threat to Moore while K.C.


        3 Johnson also explained that the vaginal swab from K.C. contained an extra allele. Johnson noted
that it was impossible to say for certain what constituted the extra allele but that it could be a specimen
from an unknown male or unknown female or it could be artificial or stutter. Based on her experience,
Johnson believed that the extra matter was stutter. Johnson did not believe that the matter was significant
to her analysis, and she explained that forensic scientists frequently find such matter in DNA analysis.

Lane v. State                                                                                       Page 6
was in Moore’s bedroom. Appellant also acknowledged having sex with K.C., but he

described the interaction as consensual and taking place in a bedroom. He recalled that

K.C. got mad at him after they had sex because he did not have any drugs to give her.

On appeal, appellant asserts that K.C. falsely accused him of rape because he did not have

any drugs to give her in exchange for sex.

          As noted earlier, each fact need not point directly and independently to a

defendant’s guilt, as long as the cumulative force of all the incriminating circumstances

are sufficient to support the conviction.       See Hooper, 214 S.W.3d at 13.      Given the

cumulative force of K.C.’s statement identifying her attacker and the circumstances

surrounding the attack, Detective Dunagan’s testimony that appellant matched the

description provided by K.C. of her attacker, and the DNA evidence established

appellant as the last person to deposit semen in K.C., it was rational for the jury to infer

that appellant was the person who sexually assaulted K.C. on the evening in question.

See id.

          And to the extent that the evidence supports conflicting inferences, especially with

regard to identity and whether the sex between appellant and K.C. was consensual, the

Court of Criminal Appeals has held that we must presume that the factfinder resolved

such conflicts in favor of the prosecution and therefore defer to that determination. See

Clayton v. State, 235 S.W.3d 772, 778-79 (Tex. Crim. App. 2007); Chambers, 805 S.W.2d at

461; see also Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An

appellate court must give due deference to a jury’s decision regarding what weight to

give contradictory testimonial evidence because the decision is most likely based on an

Lane v. State                                                                           Page 7
evaluation of credibility and demeanor, which the jury is in a better position to judge.”).

With its guilty verdict, the jury clearly believed that appellant sexually assaulted K.C.

        Therefore, viewing the evidence in the light most favorable to the verdict, and

giving due deference to the jury’s determination of witness credibility and the weight of

the evidence, we conclude the jury could have found beyond a reasonable doubt that

appellant was the person who sexually assaulted K.C. on the evening in question. See

TEX. PENAL CODE ANN. § 22.021(a); see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at

13. We overrule appellant’s first issue.

                                II.   THE EXCLUSION OF EVIDENCE

        In his second issue, appellant asserts that the trial court abused its discretion in

excluding evidence detailing the victim’s pattern of exchanging sex for drugs. Appellant

argues that the evidence is highly relevant to his defense of consent and indicates a

motive for the victim to lie.

A.      Applicable Law

        We review a trial court’s decision to exclude evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its

discretion only if its decision is “so clearly wrong as to lie outside the zone within which

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.

2008). A trial court does not abuse its discretion if any evidence supports its decision. See

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We will uphold the trial

court’s evidentiary ruling if it was correct on any theory of law applicable to the case. See

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

Lane v. State                                                                          Page 8
        Generally, Texas Rule of Evidence 412 does not permit reputation or opinion

evidence of a complaining witness’s past sexual behavior in a criminal trial for sexual

assault. See TEX. R. EVID. 412. The exceptions are when evidence (1) is necessary to rebut

or explain scientific or medical evidence offered by the State, (2) is of past sexual behavior

with the accused and is offered by the accused upon the issue of whether the alleged

victim consented to the charged sexual behavior, (3) relates to the motive or bias of the

alleged victim, (4) is admissible under Rule 609, pertaining to impeachment by evidence

of conviction of a crime, or (5) is constitutionally required to be admitted. See id. at R.

412(b)(2)(A)-(E). Even if the evidence falls under one of the five listed exceptions, its

probative value must still outweigh the danger of unfair prejudice. See id. at R. 412(b)(3);

see also id. at R. 403.

        When a state procedural rule does not satisfactorily permit the defense to attack

the credibility of a witness, the rule must give way to the constitutional right. See Davis

v. Alaska, 415 U.S. 308, 319-20, 94 S. Ct. 1105, 1111-12, 39 L. Ed. 2d 347 (1974). The

Constitution, however, does not confer a right in every case to impeach the general

credibility of a witness through cross-examination about prior instances of conduct. See

id. at 321, 94 S. Ct. at 1112-13 (Stewart, J., concurring); see also Wheeler v. State, 79 S.W.3d

78, 88 (Tex. App.—Beaumont 2002, no pet.). Nor does the Constitution confer upon a

defendant an absolute “right to impeach the general credibility of a witness in any fashion

that he chooses.” Hammer, 296 S.W.3d at 562.

        “[A] defendant may always offer evidence of a pertinent trait—such as

truthfulness—of any witness.”        Id. at 563.   But the witness’s general character for

Lane v. State                                                                            Page 9
truthfulness may be shown only through reputation or opinion testimony. See id.; see also

TEX. R. EVID. 608(a). “A witness’s general character for truthfulness or credibility may

not be attacked by cross-examining him (or offering extrinsic evidence) concerning

specific prior instances of untruthfulness.” Hammer, 296 S.W.3d at 563. In fact, the

Hammer Court stated that: “Prior false allegations of rape do not tend to prove or

disprove any of the elements of the charged sexual offense.” Id. at 564. “If, however, the

cross-examiner offers evidence of a prior false accusation of sexual activity for some

purpose other than a propensity attack upon the witness’s general character for

truthfulness, it may well be admissible under our state evidentiary rules.” Id. at 565.

B.      Discussion

        Prior to taking any testimony, the trial court conducted a Rule 412 hearing. At the

hearing, appellant sought to introduce evidence that the victim “is a prostitute. And she

trades drugs for sex. And she’s been doing that for a long time.” Appellant asserted that

this evidence demonstrates the victim’s motive for bias and revenge because she was

allegedly upset with appellant for not providing drugs after they had sex.

        In response to appellant’s arguments, the State, relying on an opinion from the

Dallas Court of Appeals, argued that “witnesses could not testify that the complainant

had a history of exchanging sex for drugs in an effort to show that the complainant had

a motive to bring rape charges to retaliate for the Defendant’s refusal to buy her more

cocaine.” See generally Wofford v. State, 903 S.W.2d 796 (Tex. App.—Dallas 1995, no pet.).

The State contended that the facts in the instant case are substantially similar to those in

Wofford. Accordingly, the State asserted that appellant could not introduce evidence of

Lane v. State                                                                        Page 10
specific instances where K.C. exchanged sex for drugs. The trial court allowed appellant

to show that K.C. had become angry and threatened rape in the past, but appellant was

prohibited from introducing evidence of prior sexual acts. Appellant was also allowed

to show that K.C. was angry at Moore; that she was overheard threatening to accuse

Moore of rape on more than one occasion; and that Moore had threatened K.C. with a

knife earlier in the day because she would not have sex with him.

        Here, appellant raised consent as an issue, and in his testimony, he highlighted

instances where K.C. got upset because she did not get drugs in exchange for sex.

Specifically, appellant explained that K.C. had sex with Moore that day and that she told

him, “You’re not going to pull that this time.” Appellant also noted the following: “Yes,

she did. She was—she was explaining that he had messed her over many times before,

and he tell her he’s going to give her stuff and then later on hesitate on and don’t do it,

don’t follow through with it.” Appellant clarified that “stuff” meant “[c]rack or money.”

Appellant stated that K.C. threatened Moore by telling him that she would claim that she

was raped if he did not give her crack. Vassey also confirmed hearing K.C. threaten

Moore with a rape allegation if he did not provide her with drugs. Later, appellant

testified that K.C. offered to “trick” with him for some drugs. After having sex with K.C.,

appellant told her that he did not have any drugs. According to appellant, this statement

angered K.C.

        While defendants are entitled to great latitude to show a witness’ bias or motive

to falsify testimony, see Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.]

1982), the trial court retains wide latitude to impose reasonable limits on cross-

Lane v. State                                                                       Page 11
examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed.

2d 674 (1986). The trial court must carefully consider the probative value of the evidence

and weigh it against the risks of admission. See Hodge, 631 S.W.2d at 758. Such risks

include “the possibility of undue prejudice, embarrassment or harassment to either a

witness or a party, the possibility of misleading or confusing the jury, and the possibility

of undue delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.

App. 2000).      Though appellant sought to introduce additional evidence of K.C.

exchanging sex for drugs to demonstrate motive and bias, such evidence was cumulative

of testimony regarding K.C.’s interactions with Moore and appellant that was already in

evidence. See TEX. R. EVID. 403 (“The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following . . . undue

delay, or needlessly presenting cumulative evidence.”); see also Avila v. State, No. 01-03-

00800-CR, 2004 Tex. App. LEXIS 8963, at *7 (Tex. App.—Houston [1st Dist.] Oct. 7, 2004,

no pet.) (mem. op., not designated for publication) (“The standard for exclusion of

cumulative evidence and harmless error dictates that no harm results when evidence is

excluded if other evidence of substantially the same nature is admitted.”).              The

introduction of this evidence would have resulted in, among other things, undue delay

or a waste of time. See Hodge, 631 S.W.2d at 758; see also Lopez, 18 S.W.3d at 222. Therefore,

we cannot say that the trial court abused its discretion in excluding additional evidence

of K.C. exchanging sex for drugs. See Martinez, 327 S.W.3d at 736; see also De La Paz, 279

S.W.3d at 344.



Lane v. State                                                                          Page 12
        Furthermore, we do not believe that the trial court’s exclusion of this evidence

somehow prevented appellant from presenting a complete defense, especially given that

the substance of the evidence appellant sought to introduce was already in evidence. See

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (“[T]he

Confrontation Clause guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, or to whatever extent, the defense

might wish.”); see also Hammer v. State, 296 S.W.3d 555, 562-63 (Tex. Crim. App. 2009)

(“[T]he [Supreme] Court did not hold that a defendant has an absolute constitutional

right to impeach the general credibility of a witness in any fashion that he chooses. But

the constitution is offended if the state evidentiary rule would prohibit him from cross-

examining a witness concerning possible motives, bias, and prejudice to such an extent

that he could not present a vital defensive theory.”); Walker v. State, 300 S.W.3d 836, 844-

45 (Tex. App.—Fort Worth 2009, pet. ref’d).

        Moreover, appellant was able to raise all of his defensive theories in his closing

argument to the jury and urged them to infer that K.C. was not credible because his

evidence showed that she was retaliating against him for failing to provide her with

drugs in exchange for sex. See Johnson v. State, 449 S.W.3d 240, 246-27 (Tex. App.—Fort

Worth 2014, pet. granted) (“Indeed, defense counsel raised all of these grounds in his

closing argument to the jury and urged that they indicated H.H. was not credible; thus,

he was not prevented from presenting this defensive theory. This admissibility theory

does not establish an abuse of discretion.” (citing Hammer, 296 S.W.3d at 562-63)).

Therefore, based on the foregoing, we overrule appellant’s second issue.

Lane v. State                                                                        Page 13
                                         III.     THE JURY CHARGE

        In his third issue, appellant contends that the trial court erred in instructing the

jury that it could consider extraneous acts for an improper purpose.                           Specifically,

appellant argues that the trial court erred in instructing the jury that it could consider his

prior convictions under Texas Rule of Evidence 404(b), even though they were allegedly

only admissible under Texas Rule of Evidence 609 to impeach his credibility. See TEX. R.

EVID. 404(b), 609.

        The record reflects that appellant first introduced his criminal history on direct

examination.4       Apparently, appellant embraced his criminal history as part of his

defensive theory. In fact, during closing argument, appellant’s counsel specifically

mentioned the following:

        I mean, these aren’t lily, clean people who’ve never made a mistake in their
        life. There people do not live—these folks that we’ve had up here are not
        living the same life as us, probably, is my guess. I mean, they’re living a
        life where people hang out in crack houses and people are smoking
        marijuana and smoking dope all the time. They’re living a life where there’s
        casual sex that we would not participate in.

                 ....

        And sometimes it’s hard to—or sometimes it’s easy to think, well, these are
        all bad people. You know. Who cares if we convict Michael of something
        bad[?] He’s done a bunch of other bad stuff.

             Well, that ain’t the way this works. We got to separate that stuff out.
        We can’t just say because they’ve done bad stuff over here, therefore,
        Michael’s guilty of this. Okay? We can’t say because these people are

        4 The State inquired about appellant’s criminal history only after appellant opened the door on
direct examination. See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (noting that, when a
party leaves a false impression with the jury, this opens the door for the opposing party to introduce
extraneous-offense evidence to correct the false impression (citing Daggett v. State, 187 S.W.3d 444, 452 (Tex.
Crim. App. 2005))); see also Hernandez v. State, 351 S.W.3d 156, 160 (Tex. App.—Texarkana 2011, pet. ref’d).

Lane v. State                                                                                         Page 14
          around the drug culture and have all this casual sex and prostitution is
          going on over there that—we can’t just say, okay, well therefore Michael is
          a rapist.

          In any event, the record does not reflect that appellant requested a limiting

instruction as to this extraneous-offense evidence.5 The Court of Criminal Appeals has

held that, “if a defendant does not request a limiting instruction under Rule 105 at the

time that evidence is admitted, then the trial judge has no obligation to limit the use of

that evidence later in the jury charge.” Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim.

App. 2007) (citing Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001); Martin v.

State, 176 S.W.3d 887, 899 (Tex. App.—Fort Worth 2005, no pet.); Prescott v. State, 123

S.W.3d 506, 515-16 (Tex. App.—San Antonio 2003, no pet.)). “Once evidence has been

admitted without a limiting instruction, it is part of the general evidence and may be used

for all purposes.” Id. (citing Hammock, 46 S.W.3d at 895; Rankin v. State, 974 S.W.2d 707,

712 (Tex. Crim. App. 1996)).                Because appellant did not timely request a limiting

instruction as to this extraneous-offense evidence, the State was able to use the evidence

for any purpose. See id.; Hammock, 46 S.W.3d at 895; Rankin, 974 S.W.2d at 712; see also

Walker v. State, 300 S.W.3d 836, 849 (Tex. App.—Fort Worth 2009, pet. ref’d) (“If the

defendant fails to request a limiting instruction at the introduction of the impeachment

evidence, then the defendant does not preserve error and the trial court is not required to

provide an instruction; the burden is on the defendant alone to request a limiting

instruction.”). We therefore cannot say that the trial court erred in failing to include an



          5   The jury charge did include an instruction under Texas Rule of Evidence 404(b). See TEX. R. EVID.
404(b).

Lane v. State                                                                                          Page 15
instruction limiting the jury’s consideration of the extraneous-offense evidence to

credibility. See Middleton, 125 S.W.3d at 453; Almanza, 686 S.W.2d at 171; see also Delgado,

235 S.W.3d at 251; Walker, 300 S.W.3d at 849. We overrule appellant’s third issue.

                                     IV.    CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 17, 2015
Do not publish
[CRPM]




Lane v. State                                                                        Page 16
