Opinion filed April 16, 2009




                                             In The


   Eleventh Court of Appeals
                                          ___________

                                    No. 11-07-00295-CR
                                        __________

                   ROBERT LINDSEY GREENE, JR., Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                           On Appeal from the 355th District Court

                                      Hood County, Texas

                                Trial Court Cause No. CR10469


                                          OPINION
       The jury convicted Robert Lindsey Greene, Jr. of three counts of sexual assault of a child and
three counts of indecency with a child. The jury assessed punishment at fourteen years confinement
on each of the counts. The trial court ordered that the sentences run concurrently. We affirm.
                                        Background Facts
       Appellant was indicted for three counts of sexual assault of a child (Counts One through
Three) and four counts of indecency with a child (Counts Four through Seven). The indictment
referred to the child by the pseudonym “L.F.” The indictment alleged that the offenses occurred on
or about October 15, 2005. L.F. was sixteen years old at the time of the alleged offenses. Counts
One through Three alleged that appellant sexually assaulted L.F. by penetrating her sexual organ
with his fingers, by penetrating her sexual organ with his sexual organ, and by penetrating her mouth
with his sexual organ. Counts Four through Seven alleged that appellant committed indecency with
a child by engaging in sexual contact by touching L.F.’s breast with his sexual organ, by touching
L.F.’s breast with his hand, by touching L.F.’s genitals with his mouth, and by touching L.F.’s
genitals with his hand.
       The jury convicted appellant of Counts One through Six. Count Seven was not submitted
to the jury. Following the jury’s verdict, the State moved to dismiss Count Seven on the ground that
it was a lesser included offense of the offense alleged in Count One. The trial court granted the
State’s motion to dismiss.
                                       The Evidence at Trial
       We note that appellant does not challenge the sufficiency of the evidence supporting his
convictions. However, an analysis of appellant’s issues on appeal requires a review of the evidence.
The record shows that, in 2005, appellant worked as a detective for the Crowley Police Department.
At that time, L.F.’s mother, Denise Reynolds, also worked at the department. Denise was a records
clerk and property evidence tech for the department. Appellant and his wife, Elizabeth, became
friends with Denise and L.F., and appellant spent one-on-one time with L.F. Appellant discussed
L.F.’s problems with her, helped her with her homework, played video games with her, went to the
movies with her, and taught her how to shoot a gun at a shooting range. L.F. often visited Denise
at the Crowley Police Department, and L.F. talked with appellant many times at the department.
       In November 2005, appellant and Elizabeth went on a Caribbean cruise with Denise and L.F.
At about the same time, the Crowley Police Department was experiencing problems with one of its
computers. The department hired a private company to repair the computer. The company
discovered that child pornography had been saved on the computer. At a pretrial hearing, the State
presented evidence that appellant was the only person with access to the computer when the child
pornography images were saved on it. Appellant was placed on administrative leave from the
Crowley Police Department pending an investigation. Appellant went to work for a company named
PumpCo after leaving the department.


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        A warrant was issued for appellant’s arrest for the offense of possession of child pornography
on his work computer at the Crowley Police Department. Before appellant was arrested, United
States Deputy Marshal Vickie Gilpin Birge and her partner informed Elizabeth that they had an arrest
warrant for appellant. Deputy Birge testified that Elizabeth asked if they were there about a sexual
assault. Tarrant County Deputy Sheriff Robert Hernandez and several other officers assisted in the
arrest of appellant. Deputy Hernandez testified that, while appellant was being arrested, he asked,
“Is this about the sexual assault?” Deputy Hernandez said that he told someone at the Tarrant
County District Attorney’s Office about appellant’s statement.
        After appellant was arrested, Lorie Barnell of the Tarrant County District Attorney’s Office
called Crowley Police Department Investigator Richard Chapman. Barnell’s call led Investigator
Chapman to investigate a possible sexual assault charge against appellant. Barnell asked Investigator
Chapman whether he knew of anyone who might have been sexually assaulted. Investigator
Chapman had seen appellant and L.F. together at the police department, and he thought that L.F.
might have been a victim of sexual assault. Investigator Chapman asked Denise to talk with L.F.
to see whether there had been a sexual relationship between appellant and L.F. L.F. told Denise
about her sexual relationship with appellant. Denise reported back to Investigator Chapman, and he
had L.F. taken to the Alliance for Children to be interviewed.
        L.F. testified that she and appellant had had a sexual relationship that lasted for one and one-
half months to two months. She said that the first time she had sex with appellant was on October 1,
2005. L.F. also testified that appellant committed the acts alleged in the indictment. William Taylor
Brooks, who had worked with appellant at PumpCo, testified that appellant told him L.F.’s name,
showed him pictures of L.F., told him that he and L.F. had had a sexual relationship, and told him
that he and L.F. had engaged in sex in a number of different positions, including “[m]issionary,
doggy style, anal, [and] oral.” The State presented evidence that appellant sent L.F. a number of text
messages of a sexual nature.
                                            Issues on Appeal
        Appellant presents four issues for review. In each issue, appellant complains of evidentiary
error. In his first and second issues, he contends that the trial court erred in admitting evidence of
his arrest for an extraneous offense. In his third issue, he asserts that the trial court erred in admitting


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evidence of statements that he made to Denise and L.F. about his feelings for L.F. In his fourth
issue, he contends that the trial court erred by failing to disclose to him material information
contained in L.F.’s Planned Parenthood records.
                                         Standard of Review
       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Burden v. State, 55
S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court’s ruling
unless that ruling falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589,
595 (Tex. Crim. App. 2003); Burden, 55 S.W.3d at 615. Error in the admission of evidence is
nonconstitutional error and is, therefore, subject to a harm analysis under Rule 44.2(b) of the Rules
of Appellate Procedure. TEX . R. APP . P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim.
App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); West v. State, 124
S.W.3d 732, 734 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Therefore, to obtain a reversal
of a conviction based on error in the admission of evidence, an appellant must show that the trial
court’s ruling was in error and that the error affected his substantial rights. Rule 44.2(b); West, 124
S.W.3d at 734. Substantial rights are not affected by the erroneous admission of evidence “if the
appellate court, after examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002) (quoting Johnson, 967 S.W.2d at 417)).
                             Evidence of Arrest for Extraneous Offense
       In his first and second issues, appellant argues that the trial court erred in admitting evidence
of his June 2006 arrest for possession of child pornography. Specifically, appellant asserts that the
evidence relating to his June 2006 arrest was not relevant and allowed the jury “to consider evidence
of character conformity.” Alternatively, appellant argues that, if the evidence was relevant, it should
have been excluded under Rule 403 of the Rules of Evidence. TEX . R. EVID . 403. Appellant also
argues that the trial court violated his rights to due process of law and a fair and impartial jury by
allowing the State to go into details of his June 2006 arrest.
       Before trial, the trial court ruled, over appellant’s objections, that the State would be allowed
to offer limited evidence relating to appellant’s June 2006 arrest for the purpose of showing that the


                                                  4
arrest led to the investigation of appellant in this cause. The prosecutor explained the purpose of the
evidence during his opening statement:
               And I want to tell you some things that you’re not going to hear about and
       why you’re not going to hear about them. Now, you’re not going to hear about what
       this arrest warrant was for, you’re not going to hear about the details of that
       investigation, that initial one, and the reason why is is it’s not relevant to anything
       that you have to consider here today, except for it explains how this all started.
       Okay? So I don’t want you to be trying to speculate or guess as to what that was.
       You’re only to consider that – and Judge Walton may even tell you more or less the
       same thing – you’re only to consider evidence about this arrest for the limited
       purpose of explaining why or how Richard Chapman started looking into the
       relationship between the defendant and [L.F.].

The State presented limited evidence about the June 2006 arrest during trial. The evidence showed
that the arrest was not for sexual assault, that appellant and Elizabeth both asked whether the arrest
was for sexual assault, and that the arrest led to the investigation in this cause. The State did not
offer evidence that appellant was arrested for possession of child pornography. The trial court gave
the following limiting instruction during Elizabeth’s testimony about the arrest:
                THE COURT: [W]ell, the jury is instructed not to consider this testimony as
       it relates to the events surrounding the issuance of a warrant for the arrest of – of the
       defendant as is being discussed right now. Any evidence of the guilt of the defendant
       in this case right here has nothing to do with that, it’s just contextual to show the
       surrounding of the events leading up to his arrest.

Rule 404(b) of the Rules of Evidence provides:

               Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


TEX . R. EVID . 404(b). Rule 404(b) incorporates the fundamental tenet of our criminal justice system
that an accused may be tried only for the offense for which he is charged and not his criminal
conformity. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). For an extraneous
offense to be admissible, it must be relevant apart from supporting an inference of character
conformity. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).


                                                  5
       Extraneous offense evidence may be admissible for purposes other than those expressly listed
in Rule 404(b). For example, such evidence may be admissible as same transaction contextual
evidence, which has been defined as evidence of other offenses connected with the offense charged.
Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000); Rogers v. State, 853 S.W.2d 29, 33 (Tex.
Crim. App. 1993); Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet.
dism’d). “[I]t has long been the rule in this State that the jury is entitled to know all relevant
surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.”
Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). Same transaction contextual
evidence is admissible under Rule 404(b) to the extent that it is necessary to the jury’s understanding
of the charged offense, such as when the charged offense would make little or no sense without it.
Wyatt, 23 S.W.3d at 25; Swarb, 125 S.W.3d at 681. The purpose of admitting extraneous offense
evidence as same transaction contextual evidence is to place the instant offense in context.
Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
       Appellant’s June 2006 arrest, coupled with his question about whether he was being arrested
for sexual assault, led to Investigator Chapman’s investigation of appellant in this cause. L.F. did
not make her sexual assault outcry until after Investigator Chapman began his investigation. The
State could not adequately describe the facts and circumstances of the offenses charged in this cause
without presenting evidence relating to appellant’s June 2006 arrest. The evidence about the
circumstances surrounding appellant’s June 2006 arrest explained why Investigator Chapman was
investigating appellant. Without such an explanation, the timing of Investigator Chapman’s
investigation and L.F.’s outcry would make little or no sense to a jury. We find that the evidence
relating to appellant’s June 2006 arrest constituted same transaction contextual evidence for the
purposes of Rule 404(b). See Swarb, 125 S.W.3d at 682 (Evidence of an arrest warrant relating to
an extraneous offense provided the jury with the context to show why the officers were searching
for the defendant and how they discovered controlled substances in his vehicle.).
       In addition to satisfying the requirements of Rule 404(b), extraneous offense evidence must
also satisfy the balancing test of Rule 403. Nguyen, 177 S.W.3d at 668; Swarb, 125 S.W.3d at 681.
Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice. A Rule 403 analysis by the trial court should include, but is not


                                                  6
limited to, the following considerations: (1) the probative value of the evidence; (2) the potential
of the evidence to impress the jury in some irrational, 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). Generally, although a trial court must still perform a balancing
test to see if same transaction contextual evidence’s probative value is substantially outweighed by
its prejudicial effect, the prejudicial nature of contextual evidence rarely renders it inadmissible, as
long as it sets the stage for the jury’s comprehension of the whole criminal transaction. Swarb, 125
S.W.3d at 681.
       During a pretrial hearing, the trial court performed a Rule 403 balancing test on the evidence
relating to appellant’s June 2006 arrest and determined that its probative value outweighed any
prejudicial effect. Therefore, the trial court indicated that it would allow the State to introduce the
evidence at trial. Appellant made Rule 403 objections to the evidence during trial, and the trial court
overruled the objections. A trial court is not required to perform a balancing test in a formal hearing
on the record. Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997); Yates v. State,
941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d). By overruling appellant’s Rule 403
objections, the trial court necessarily conducted the balancing test when it considered the objections.
Yates, 941 S.W.2d at 367.
       The probative nature of the evidence relating to appellant’s June 2006 arrest is set forth
above. The evidence explained the reason for Investigator Chapman’s investigation of appellant.
The State needed to introduce the evidence to adequately describe the circumstances of the charged
offenses. The prosecutor explained to the jury that it was to consider the evidence about the June
2006 arrest for the limited purpose of explaining why or how Investigator Chapman began his
investigation. The record does not show that the evidence about appellant’s June 2006 arrest had
the potential to impress the jury in some irrational, indelible way. The record does not establish that
the probative value of the evidence was substantially outweighed by the danger of unfair prejudice;
therefore, the trial court did not abuse its discretion in overruling appellant’s Rule 403 objections.
       However, even assuming that the admission of the evidence constituted error, the record does
not demonstrate that appellant was harmed by the evidence. In assessing harm, the appellate court
should consider everything in the record, including any testimony or physical evidence admitted for


                                                   7
the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with other evidence in the case. Motilla,
78 S.W.3d at 355; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We have
summarized the evidence at trial above. The State presented ample evidence of appellant’s guilt.
The State informed the jury of the purpose of the limited evidence relating to appellant’s June 2006
arrest, and the trial court gave the jury a limiting instruction about the evidence. Viewing the entire
record and assuming that the admission of the evidence relating to the June 2006 arrest constituted
error, we conclude that the error did not have a substantial and injurious effect or influence on the
jury’s verdict.
        Appellant also contends that Elizabeth’s statement to Deputy Birge about whether Deputy
Birge and her partner were there about a sexual assault constituted inadmissible hearsay. Elizabeth’s
statement was cumulative of appellant’s statement to Deputy Hernandez when he was arrested, and
appellant’s statement was not hearsay. TEX . R. EVID . 801(e)(2)(A); Trevino v. State, 991 S.W.2d
849, 853 (Tex. Crim. App. 1999) (“[A] criminal defendant’s own statements, when being offered
against him, are not hearsay.”). Even if the trial court erred in admitting Elizabeth’s statement, the
record does not demonstrate that appellant was harmed by the evidence. We overrule appellant’s
first and second issues.
                           Appellant’s Statements About His Feelings for L.F.
        In his third issue, appellant contends that the trial court erred in admitting evidence of
statements he made to Denise and L.F. about his feelings for L.F. In his brief, appellant cites two
instances of testimony. First, Denise testified that appellant told her that he was in love with L.F.
and wanted to be with her. Second, L.F. testified appellant told her that “he would like to kiss me
on the neck, rub his hand up my side, grab my breasts and engage in sexual activity.” Appellant
asserts that this testimony contained evidence of extraneous offenses or bad acts under Rule 404(b).
He contends that the evidence was inadmissible for two reasons: (1) the State failed to provide him
with reasonable notice of the State’s intent to introduce such evidence as required by Rule 404(b)




                                                   8
and Article 38.37 of the Code of Criminal Procedure1 and (2) that its prejudicial effect outweighed
its probative value.
        To constitute an extraneous offense, the evidence must show a crime or bad act and must
connect the defendant to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992);
Castillo v. State, 59 S.W.3d 357, 361 (Tex. App.—Dallas 2001, pet. ref’d). The evidence must
include some sort of extraneous conduct on behalf of the defendant that forms a part of the alleged
extraneous offense. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). Statements
concerning a defendant’s thoughts of wrongdoing are merely inchoate thoughts. Id. To implicate
Rule 404(b), there must be actual conduct that alone or in combination with these thoughts could
constitute a bad act, wrong, or crime. Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App.
1996); Moreno, 858 S.W.2d at 463; Castillo, 59 S.W.3d at 361. Appellant’s statements about his
feelings for L.F. and what he wanted to do to her pertained to his thoughts and did not implicate any
conduct on his part that would invoke Rule 404(b). Therefore, the State was not required to give
appellant notice of its intent to introduce this evidence under Rule 404(b) or Article 38.37.
        Evidence about appellant’s feelings for L.F. and what he wanted to do to her was relevant
to, and highly probative of, appellant’s state of mind and the relationship between appellant and L.F.
The record does not demonstrate that the probative value of this evidence was substantially
outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion
in admitting the evidence. However, assuming that the trial court committed error, we note that
appellant sent a text message to L.F. telling her he loved her and that appellant sent her text messages
of a sexual nature. The record does not demonstrate that appellant was harmed by Denise’s and
L.F.’s testimony about his feelings for L.F. and what he wanted to do to her. We overrule appellant’s
third issue.
                                           Planned Parenthood Records
            In his fourth issue, appellant argues that L.F.’s Planned Parenthood records may have
contained material information as defined in Brady v. Maryland, 373 U.S. 83 (1963). Appellant
asserts that the trial court abused its discretion in failing to disclose the material information to him.
Appellant subpoenaed L.F.’s Planned Parenthood records. The trial court conducted an in camera
review of the records. By letter ruling, the trial court found that the records did not contain
information that was material to the case. The trial court stated in the letter that it would be returning

        1
            TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp. 2008).

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the records to Planned Parenthood. The following exchange took place between appellant’s counsel
and the trial court at a pretrial hearing:
               [DEFENSE COUNSEL]: The second matter I have, Your Honor, as the
        Court’s aware, I subpoenaed some Planned Parenthood documents that the Court
        reviewed and determined they were not material and relevant to this trial. I – in the
        Court’s order, Judge, you indicated you had sent those documents back to Planned
        Parenthood. I would inquire whether the Court contained a sealed copy in the clerk’s
        file.

                 THE COURT: No.

               [DEFENSE COUNSEL]: Then I’d request that I be allowed to contact
        Planned Parenthood and get a sealed copy for record only purposes, certainly order
        on the outside of those records sealed, only to be opened with permission of the
        Court.

               THE COURT: All right. You can do that. I’ll grant you permission to do that
        and order Planned Parenthood to turn over a sealed copy of it.

                 [DEFENSE COUNSEL]: Okay. I’ll take care of that, Judge.

        The record does not show that appellant’s counsel contacted Planned Parenthood in an effort
to obtain a sealed copy of the records for the trial court clerk’s file or that the records were filed with
the clerk. The appellate record does not contain the records. While appellant believes that the
records contain material information, we cannot evaluate his claim because the records are not before
us. Appellant had the burden to include all matters in the record necessary to evaluate his claim.
Roberts v. State, 220 S.W.3d 521, 527 (Tex. Crim. App. 2007); Newsome v. State, 829 S.W.2d 260,
264 (Tex. App.—Dallas 1992, no pet.). Because appellant did not include the Planned Parenthood
records in the record, he failed to preserve error on this issue. Roberts, 220 S.W.3d at 527;
Newsome, 829 S.W.2d at 264. We overrule appellant’s fourth issue.
                                             This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   TERRY McCALL
April 16, 2009                                                     JUSTICE
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

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