Opinion filed January 12, 2017




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-15-00004-CR
                                     __________

                  TREVOR ASHLEY WOLFE, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR42223


                      MEMORANDUM OPINION
      The jury convicted Trevor Ashley Wolfe of assault family violence by
strangulation. The trial court assessed his punishment at confinement for ten years
in the Institutional Division of the Texas Department of Criminal Justice. The trial
court suspended the imposition of the sentence and placed Appellant on community
supervision for a term of ten years. In two issues on appeal, Appellant contends that
(1) the trial court erred in allowing evidence of an extraneous offense committed by
Appellant and (2) the trial court erred in allowing a juror to ask a question about the
evidence. We affirm.
                                       Background Facts
      In the summer of 2013, Appellant was in a dating relationship with Kim
Mitchell. Appellant and Mitchell lived together in Midland. However, Mitchell
decided that she no longer wanted a relationship with Appellant and began moving
her belongings out of Appellant’s home. On the evening of July 27, Mitchell arrived
at Appellant’s home with three friends: Marty Brown Rex, Doc Rex, and Tim
Frazier. The four individuals brought two vehicles and a trailer for the purpose of
moving Mitchell’s belongings out of Appellant’s home. Appellant and his father,
Larry Wolfe,1 were also present at Appellant’s home.
      Marty Rex is a former corrections officer. He testified that he, along with
Mitchell, Frazier, and Doc Rex, arrived at Appellant’s home at around 9:00 p.m. and
began moving Mitchell’s belongings. After about thirty minutes, Appellant became
belligerent and began yelling at Mitchell. While Appellant was standing on his front
porch and Mitchell was walking away from Appellant toward the trailer, Appellant
threw a toolbox at her. The toolbox hit Mitchell in the leg, causing her to fall. At
this time, Marty was standing in the trailer, moving items around. Appellant then
grabbed Mitchell by her arm and pulled her toward him. Marty testified that
Appellant began “choking” Mitchell with both of his hands around her neck. Marty
jumped off the trailer and attempted to separate Appellant from Mitchell. Appellant
tried to kick Marty, and Marty grabbed Appellant’s ankle and pulled him off the
porch. Marty and Appellant continued their physical altercation, which led to Marty
holding Appellant down on the ground until he became subdued.




      1
       We will refer to Appellant’s father as “Wolfe” in this opinion.

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      Doc Rex also testified. His version of events matched that given by Marty,
except that he stated he did not see Appellant throw the toolbox at Mitchell.
Additionally, he testified that Mitchell was screaming while Appellant was
strangling her and then fell silent. Mitchell stated that at this point, she passed out.
During the altercation between Marty and Appellant, Doc helped Mitchell up and
moved her out of harm’s way.
      When Mitchell awoke, she called 9-1-1 and told the dispatcher that Appellant
had just strangled her. Deputy Daniel Moore arrived at Appellant’s home. He
noticed that Mitchell had bruising and scratches on her neck. Deputy Moore arrested
Mitchell and Appellant for family violence.
      Wolfe testified on behalf of Appellant. Wolfe stated that he saw Appellant
throw the toolbox at Mitchell, but he said that it landed on the ground and did not
hit her. According to Wolfe, Mitchell became angry and started cursing and yelling
at Appellant. Mitchell walked up to the porch where Appellant was standing and
began hitting him. Wolfe testified that, in response to Mitchell’s actions, Appellant
grabbed Mitchell by her collarbone and pushed her away. Based upon Wolfe’s
testimony, the jury was instructed on self-defense and on the lesser included
misdemeanor offense of assault family violence by causing bodily injury.
                                       Analysis
      In his first issue, Appellant contends that the trial court erred when it admitted
evidence of a prior act of violence committed by Appellant toward Mitchell. He
contends that the evidence was inadmissible under TEX. R. EVID. 404(b). We review
a trial court’s ruling on the admissibility of evidence for an abuse of discretion. See
Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the
trial court’s decision unless it lies outside the zone of reasonable disagreement.
Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). We will uphold
an evidentiary ruling on appeal if it is correct on any theory of law that finds support
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in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006);
Dering v. State, 465 S.W.3d 668, 670–71 (Tex. App.—Eastland 2015, no pet.).
      Mitchell testified that, about a week prior to July 27, Mitchell was sitting on
the couch with her laptop when she became hot and turned on a fan. Appellant
became upset, slammed her laptop shut, and threw it on the ground. Appellant acted
as if he were about to punch Mitchell, but did not hit her. Mitchell went to the
bathroom to get away from Appellant. Appellant followed her, his face red and his
fists clenched by his side. Mitchell locked herself in the bathroom. Appellant
threatened to kick in the door. Mitchell left the bathroom through a second door and
hid in her daughter’s bedroom. Once Mitchell believed Appellant was gone, she
went back to the couch with the laptop. Appellant then walked into the room and
kicked a glass table, shattering it. He threw a television off an armoire, ripped the
blades off the fan and threw them at the wall next to Mitchell, and threw his phone
through the wall. Mitchell went back into the bathroom and called the police. When
Mitchell came back out of the bathroom, she saw Appellant leave the house with
guns in his hands.
      Appellant initially asserts that the trial court erred in admitting Mitchell’s
testimony without first making a threshold finding that Appellant committed the
extraneous offense beyond a reasonable doubt. See Harrell v. State, 884 S.W.2d
154, 158 (Tex. Crim. App. 1994). In Harrell, the Court of Criminal Appeals held
that, in deciding whether to admit extraneous offense evidence, the trial court must
make an initial determination that a jury could find beyond a reasonable doubt that
Appellant committed the extraneous offense. Id. at 161. When determining the
relevance of evidence that depends upon the existence of other facts, a trial court
“may admit the proposed evidence on the condition that the proof be introduced
later.” TEX. R. EVID. 104(b). The Court of Criminal Appeals has interpreted Rule
104(b) to mean that the trial court is not limited to “the initial proffer in determining
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whether [R]ule 404(b) evidence . . . was properly admitted.” Fischer v. State, 268
S.W.3d 552, 557 (Tex. Crim. App. 2008). In other words, the trial court may allow
evidence of extraneous offenses, even if the State does not offer proof that the
offense occurred beyond a reasonable doubt until after the proffer. See id. at 556–
57.
      Prior to Mitchell’s testimony, the trial court heard arguments from counsel on
Appellant’s motion in limine regarding his alleged extraneous offenses that the State
sought to offer at trial. The State’s “Notice of Intent to Offer Evidence of Extraneous
Crimes” identified the following extraneous offense:
             4. One week before the assault in Midland County the defendant
             in a fit of anger broke several items in the house and in a
             threatening manner grabbed his guns and went to the shop on the
             property then later sent the victim a threatening text about guns.
             He also struck her on her upper body and held her down to the
             couch while accosting her verbally.
No testimony was presented by either side during the hearing on the motion in
limine. The trial court denied Appellant’s motion in limine with regard to item
number four. The State then called Mitchell to the stand, and she described the
extraneous offense discussed above. We conclude that, after hearing Mitchell’s
testimony, a jury could have found beyond a reasonable doubt that Appellant
committed the extraneous offense. Thus, Harrell’s procedural requirement was
achieved by the subsequent evidence offered at trial. Id. at 558.
      Appellant also contends that this evidence was not admissible under any of
the exceptions to Rule 404(b). The State argues that Appellant’s assertion of self-
defense put his intent in issue and “allowed the State to rebut the defense with
evidence of other crimes, wrongs, or acts, or evidence of violent acts where
Appellant was the aggressor.” We agree with the State that intent was a contested
issue because Appellant claimed that Mitchell was the aggressor and that he was


                                          5
acting in self-defense. See Render v. State, 347 S.W.3d 905, 920–21 (Tex. App.—
Eastland 2011, pet. ref’d).
      A defendant’s prior crimes or bad acts are generally inadmissible to prove that
he has a bad character or a propensity to commit the offense charged. Id. (citing
Robinson v. State, 844 S.W.2d 925, 928 (Tex. App.—Houston [1st Dist.] 1992, no
pet.)). Such evidence, however, may be admissible for other purposes, such as proof
of motive, intent, plan, knowledge, or lack of mistake or accident. TEX. R. EVIDENCE
404(b). “The ‘other purposes’ listed in Rule 404(b) are not exclusive or exhaustive
but are merely representative.” Render, 347 S.W.3d at 921 (citing Robinson, 844
S.W.2d at 929).
      “When an accused raises a self-defense theory, the State may introduce
evidence of prior violent acts where the accused was an aggressor in order to show
his intent and to rebut the defense.” Render, 347 S.W.3d at 921 (citing Halliburton v.
State, 528 S.W.2d 216, 218 (Tex. Crim. App. 1975)). With respect to the challenged
extraneous offense, Mitchell testified that Appellant acted as if he were about to hit
her, followed her to the bathroom and threatened to kick the door down, damaged
property, and threw fan blades in her direction. This evidence demonstrated an act
of violence where Appellant was the aggressor. See Lemmons v. State, 75 S.W.3d
513, 523–24 (Tex. App.—San Antonio 2002, pet. ref’d) (in prosecution for murder,
evidence that the accused had broken into homes, tied up the victims, and stolen cars
and money at gunpoint demonstrated acts of violence where the accused was the
aggressor and was therefore admissible). Mitchell’s testimony about the extraneous
offense was relevant to show Appellant’s intent and to rebut Appellant’s claim of
self-defense during the subsequent altercation.
      Appellant relies on Pavlacka v. State, 892 S.W.2d 897 (Tex. Crim. App.
1994), as support for his contention that Mitchell’s testimony regarding Appellant’s
extraneous offense was inadmissible in this case. We disagree. In Pavlacka, the
                                          6
Court of Criminal Appeals held that rebuttal of the defendant’s denials that he
committed the offense is not a proper purpose under Rule 404(b). Id. at 901–03.
Pavlacka is inapplicable to this case. Appellant did not deny that the incident
between himself and Mitchell took place. Rather, Appellant’s theory at trial was
that Mitchell was the aggressor and that Appellant was acting in self-defense. As
discussed above, evidence of prior violent acts where Appellant was the aggressor
is admissible to rebut a theory of self-defense. See Halliburton, 528 S.W.2d at 218;
Render, 347 S.W.3d at 921; Lemmons, 75 S.W.3d at 513. Accordingly, the trial
court did not abuse its discretion by admitting evidence of the extraneous offense.
We overrule Appellant’s first issue.
      In his second issue, Appellant contends that the trial court committed error by
allowing a juror to ask a question regarding an evidentiary matter. During a recess
after the testimony of Marty Rex, the court brought in a juror who informed the
bailiff that he had a question. With the attorneys for both sides present but without
the other jurors, the juror asked:
             For purposes of credibility, I was curious about Mr. Rex, the
             reason he was no longer working in corrections or it was only
             three years. Was he dismissed for some type of reason or was he
             -- did he decide to leave for a higher paying job or something,
             some other reason?

The court responded that it could not answer the question because it could be
considered a comment on the evidence by the court or an invasion of the trial strategy
of the attorneys. The court also instructed the juror not to share the question or
answer with the other jurors.
      Immediately after the recess, the State recalled Marty. The attorney for the
State asked Marty about why he left his employment as a corrections officer. Marty
explained that he left because of low pay and lack of comradery with his coworkers.
Marty was then excused. Appellant did not object when the juror asked the question,
                                          7
when Marty was recalled and asked the same question, or when Marty gave his
answer.
      Appellant contends that the trial court erred in permitting the juror to ask the
question. He contends that he was harmed by the alleged error because it permitted
the State to “not . . . rely on its own resources” and allowed the State to put on
evidence “of what jurors wanted to hear.” We conclude that Appellant did not
preserve his complaint for appellate review.
      Texas has an adversarial system where the roles of advocacy and fact-finding
are separated and given to the attorneys, on the one hand, and to the judge and jury
on the other. Morrison v. State, 845 S.W.2d 882, 884–85 (Tex. Crim. App. 1992).
Allowing a juror to participate in the trial, such as by questioning a witness,
encourages jurors to depart from their role as factfinders and to assume an
adversarial or inquisitive role. Id. at 885–87. A trial court commits reversible error
when it allows jurors to become active participants in the solicitation of evidence.
Id. at 888; Gains v. State, 966 S.W.2d 838, 841 (Tex. App.—Houston [14th Dist.]
1998, pet. ref’d).
      Appellant relies on Morrison and Gains. Appellant is correct that both of
these cases hold that allowing improper juror questioning may constitute reversible
error. However, in both Morrison and Gains, the defendant objected at trial to the
improper procedure. Morrison, 845 S.W.2d at 898–99; Gains, 966 S.W.2d at 841.
“While Morrison stands for the proposition that juror questioning is always
unlawful, it did not say that it could be raised for the first time on appeal.” Gains,
966 S.W.2d at 843 n.1 (Anderson, J., dissenting); see Guajardo v. State, 870 S.W.2d
667, 669 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (an improper juror
question to a prosecution witness was not preserved for appellate review because the
defendant did not make a timely objection at trial).


                                          8
      In order to preserve a complaint for appellate review, a party must present the
trial court with a timely request, objection, or motion stating the specific grounds for
the desired ruling, if those grounds are not apparent from the context, and must
obtain a ruling. TEX. R. APP. P. 33.1(a); Moore v. State, 371 S.W.3d 221, 225 (Tex.
Crim. App. 2012); Ford v. State, 305 S.W.2d 530, 532 (Tex. Crim. App. 2009).
Preservation is a “systematic requirement” on appeal. Ford, 305 S.W.3d at 532. As
noted by the Court of Criminal Appeals, “The purpose of an objection is to challenge
the correctness of the action by the trial court to the end that such action may be
corrected by the court itself, if deemed erroneous, and to lay the foundation for its
review, if necessary, by the appropriate appellate tribunal.” Rogers v. State, 640
S.W.2d 248, 264 (Tex. Crim. App. [Panel Op] 1981) (quoting 24 C.J.S. Criminal
Law § 1670).
      Appellant contends that “[t]he fact Appellant did not object to the juror asking
the question is immaterial” because Appellant had no way of knowing what the
juror’s question would be before he asked it.         We disagree with Appellant’s
conclusion that he was excused from preserving his complaint for appellate review.
The harm that Appellant asserts that he suffered was the follow-up question that the
prosecutor subsequently asked to Marty based upon the juror’s question. Appellant
had an opportunity to object to the prosecutor recalling Marty after the juror
presented his question to the court. In this regard, the prosecutor prefaced his request
to recall Marty on the following comment to the trial court: “Your Honor, in light of
the juror’s question, I think we’re gonna recall Marty Rex briefly.” Appellant also
had an opportunity to object to the prosecutor subsequently asking the juror’s
question to Marty regarding why he left his employment as a correctional officer.
Appellant did not preserve his complaint for appellate review because he did not
object to the presentation of the juror’s question to the witness. We overrule
Appellant’s second issue.
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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


January 12, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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