                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00053-CR



       RAYMOND JEROME BAKER, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 241st District Court
                 Smith County, Texas
             Trial Court No. 241-0927-12




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        Raymond Jerome Baker was convicted by a jury of possession of less than one gram of

cocaine, and with a prior conviction used as an enhancement, Baker received a sentence of seven

years’ imprisonment. In his one issue on appeal, Baker contends that the trial court committed

reversible error by allowing the introduction of evidence about an extraneous offense during the

guilt/innocence phase of the trial. 1

        The issue of the admission of extraneous-offense evidence is generally within the trial

court’s discretion. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on

reh’g). The general rule is that evidence of other crimes, wrongs or acts is inadmissible to prove

a person’s character, but evidence of other crimes, wrongs, or acts is admissible for other

purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. TEX. R. EVID. 404(b). The general rule as to the admissibility of

evidence of other wrongs, however, is somewhat limited or constrained by Rule 403 of the Texas

Rules of Evidence, which states, “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of cumulative

evidence.” TEX. R. EVID. 403.

        In this case, Baker argues that the trial court erred in allowing certain evidence to be

admitted because Baker believes that the disputed evidence was more prejudicial than probative

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

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under Texas Rule of Evidence 403. Evidence that is validly objectionable under Rule 403 is

subject to exclusion if the opponent of the evidence timely objects on the basis that the danger of

unfair prejudice substantially outweighs its probative value. Id.; Montgomery, 810 S.W.2d at

389.

       The subject of Baker’s complaint is testimony that, while free on bail awaiting this trial,

Baker was arrested in Kaufman County in possession of over six grams of crack cocaine. The

arresting officer testified about the recovery of a plastic bag or baggie from Baker which

contained a substance that a chemist testified was six grams of crack cocaine. Although Baker

does not argue that the evidence was insufficient to prove the extraneous offense, he maintains

that the evidence given was so prejudicial that its prejudicial effect outweighed its probative

value. In other words, its effect would be so prejudicial to his case that its impact on the trier of

fact was sufficiently powerful that it would overshadow the evidence of the crime with which he

was currently charged.

       A Rule 403 analysis by the trial court should include (but is not necessarily limited to) the

following factors: (1) the probative value of the evidence, (2) the potential of the evidence to

impress the jury in some irrational but nevertheless indelible way, (3) the time the proponent

needs to develop the evidence, and (4) the proponent’s need for the evidence. Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d at 389–90);

Rogers v. State, 183 S.W.3d 853, 862–63 (Tex. App.—Tyler 2005, no pet.). There must be a

marked disparity between the degree of prejudice of the evidence and its probative value before




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the Rule 403 balancing test requires exclusion. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim.

App. 1996).

       As described by the Texas Court of Criminal Appeals, the term “unfair prejudice,” as

used in Rule 403, refers to the capacity of concededly relevant evidence “‘to lure the fact-finder

into declaring guilt on a ground different from proof specific to the offense charged.’” Manning

v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (quoting Old Chief v. United States, 519

U.S. 172, 180 (1997)).

       The State points to the video recording of Baker’s arrest for the offense for which he was

tried in this case to support its need to develop this testimony. The amount of illicit drugs found

on Baker was minuscule, less than the amount that one would find in a standard package of

artificial sweetener. In that video recording, Baker vociferously denied any knowledge that the

small baggie found in his pocket contained cocaine. The State, therefore, stated that it offered

evidence of the second arrest of Baker in possession of the much larger amount of crack cocaine

for the purpose of showing that he was, indeed, aware of the appearance of cocaine, providing

substantial support for the State’s position that he was aware of the nature of the contents of the

baggie in his pocket. We note that it was the duty of the State to show Baker’s mens rea in this

case; evidence showing his familiarity with the substance would, therefore, be of considerable

importance. See TEX. PENAL CODE ANN. § 6.02 (West 2011). The first and fourth factors of the

Rule 403 analysis weigh strongly in favor of admission of the evidence of the second possession.

       The second factor (i.e., the potential of the evidence to impress the jury in some irrational

but nevertheless indelible way) involves what is sometimes known as a “judgment call” in that it

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has no concrete, absolute measure. The fact that Baker was arrested in possession of a larger

quantity of crack cocaine after he had been released on bail from his detention for this offense

would surely impact the jury. The jury was also instructed, both before the evidence was

introduced and then later in the court’s charge, that it was to consider the latter offense only in

determining knowledge or absence of mistake or accident.

        Extraneous offenses are inherently prejudicial. See Brown v. State, 974 S.W.2d 289, 293

(Tex. App.—San Antonio 1998, pet. ref’d). Although evidence of extraneous offenses carries

the potential to impress the jury of a defendant’s character conformity, the impermissible

inference of character conformity can be minimized through a limiting instruction to the jury.

Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996); Karnes v. State, 127 S.W.3d 184,

193 (Tex. App.—Fort Worth 2003, pet. ref’d). Given the nature of the extraneous offense in this

case, we do not believe the evidence was so inherently inflammatory or prejudicial that the jury

would have been unable to limit its consideration of that offense to the proper purpose pursuant

to the instruction. See Heigelmann v. State, 362 S.W.3d 763, 772–73 (Tex. App.—Texarkana

2012, pet. ref’d).

        The third factor is the amount of time devoted to the development of the evidence of the

extraneous offense. Here, two of the eight witnesses heard in the guilt/innocence phase of the

trial testified about the extraneous offense, comprising approximately twenty percent of the

testimony presented in that portion of the trial. This contrasts with the situation in Morales v.

State, 293 S.W.3d 901, 912 (Tex. App.—Texarkana 2009, pet. ref’d), where only four pages of a

564-page record were devoted to the development of evidence of the extraneous offense.

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Baker’s scenario is much closer to the situation in Toliver v. State, 279 S.W.3d 391, 398 (Tex.

App.—Texarkana 2009, pet. ref’d), wherein 92 of the 408 pages in the same phase of the trial

(twenty-three percent of the State’s case) were so consumed, along with three video recordings

that required over an hour to display to the jury. In Toliver, we concluded that the evidence had

at least the potential to unfairly prejudice the jury. Similarly, we conclude that in this case,

where a fifth of the trial regarded proof of an extraneous offense, that the factor weighs against

admission of the evidence.

       Thus, three of the four factors we have considered weigh in favor of admissibility. Upon

reviewing the record as a whole and giving due deference to the trial court, we cannot say it

abused its discretion in finding that the danger of unfair prejudice did not substantially outweigh

the probative nature of the State’s proffered extraneous-offense evidence. The contention of

error is overruled.

       We affirm the judgment.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       September 13, 2013
Date Decided:         September 18, 2013

Do Not Publish




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