Opinion issued August 25, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00269-CR
                            ———————————
                       ROBIN LYNN PRINCE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1266918


                          MEMORANDUM OPINION

      Appellant Robin Lynn Prince was charged with murder, enhanced with two

prior felony convictions. See TEX. PENAL CODE § 19.02. He pleaded “not guilty.” A

jury found Prince guilty, and the trial court sentenced him to 50 years in prison. He

appeals his conviction. We affirm.
                                    Background

      Prince was romantically involved with two different women: Katie Sheppard

and complainant Christina Lewis. A sexual tryst involving all three resulted in

animosity among the trio.

      In a subsequent encounter, Lewis was entertaining Prince at her home when

she yelled for her roommate, Larry Shaw, accusing Prince of trying to rape her.

Days later, Sheppard drove Prince to his brother’s house so he could check

whether there were any outstanding warrants out for his arrest. Afterwards, the two

drove to a nearby park to meet with Lewis. There, they discussed whether Lewis

intended to report an allegation of sexual assault by Prince.

      Prince accompanied Sheppard to her home that night. After midnight, they

drove to Lewis’s home. Sheppard waited in the car while Prince went inside to see

Lewis. The two were heard arguing by Lewis’s roommate, but he went to bed after

Lewis told him everything was fine. After waiting outside for more than an hour,

Sheppard approached the home. Prince emerged with Lewis, who told him to “go

be with that bitch.” He pushed her back inside.

      Sheppard again waited outside, but she grew impatient and approached the

home once more. This time, Prince opened the door and said, “I’ll be right there,

baby.” He came out 10 to 15 minutes later with his shirt thrown over his shoulder.

After they departed, Sheppard stopped the car so Prince could open the trunk. She



                                          2
did not understand why he needed to open the trunk of the car, and she did not see

him remove anything from the trunk. But she noticed that he seemed anxious and

paranoid.

      Upon returning to his home, Prince washed his hands before going back out

to the trunk of the car. Next, he took a shower and then returned outside to burn his

clothes. Sheppard, who had been trying to sleep, asked why he was burning his

clothes. Prince replied, “Just in case there’s something on them.” When she asked

him what was going on, he responded that Lewis “might be dead” because there

was “somebody else in the house.” Hours later, Shaw found Lewis dead on her bed

with a large cut to her neck.

      The next morning, Prince called Sheppard’s stepfather and asked whether

the police had been looking for him. During that conversation, Prince stated that he

and Lewis fought, he stabbed her with a knife, and it was so sharp that he almost

cut her head off.

      Later, the police arrested Prince, who was charged with murder. While in a

holdover cell awaiting trial, he saw a former neighbor, Brian Mosely. Prince told

Mosely that he had gotten into a fight with Lewis and that he ended up stabbing

her in the neck. When Mosely asked him how he got caught, he answered that he

had gotten blood on his shirt and that Sheppard saw him.




                                         3
      The week before trial, the prosecutor notified defense counsel that the State

intended to use the testimony of a newly disclosed witness. The State intended to

call Sheppard’s stepfather to testify about his conversation with Prince in the early

morning hours after the altercation with Lewis. Before voir dire, Prince filed a

motion for continuance based on the new witness. The motion included an exhibit

containing the State’s proffer of the witness’s testimony, which Prince contended

would be devastating to the defense.

      The motion was originally denied on a Monday by a visiting judge. The next

day, when the presiding judge returned to the bench, Prince renewed his motion,

requesting a one-month continuance to investigate the proffered testimony. In the

alternative, defense counsel asked that the witness not be allowed to testify. The

court denied the motion, and instead it granted a mid-trial recess to allow the

defense time for investigation.

      Two days later, a hearing was held regarding the admissibility of the

testimony. At the hearing, the State indicated that it also intended to proffer the

testimony of Sheppard’s mother. Prince renewed his motion for continuance,

including concerns about the mother’s proposed testimony as an additional factor.

Ultimately, the court granted a short continuance, giving the defense a three-day

weekend to complete its investigation. It further ruled that the testimony was

admissible.



                                         4
      Before the witnesses’ testimony, defense investigator Kelly Kuhn testified

outside the presence of the jury about the length of time needed to investigate the

newly disclosed witnesses. Primarily, she testified to the length of time needed to

review phone calls made by Sheppard’s stepfather while in jail for an unrelated

offense. Kuhn explained that she had reviewed his 17 most recent calls, but she

still had 67 calls to review, and that it would take at least 3 to 4 days to complete

this review. Defense counsel again renewed the requests for continuance or to

disallow the testimony, explaining that more time was needed to listen to the phone

calls, but also acknowledging that he did not know whether anything on the phone

calls was beneficial to the defense. Furthermore, defense counsel made the same

requests regarding proffered testimony from Sheppard’s mother, asking for more

time for discovery of phone calls. The court denied both motions and allowed the

witnesses to testify.

      During the testimony of Sheppard’s stepfather, defense counsel cross-

examined him on his criminal history, including a pending felony-theft indictment

that carried a recommended punishment of 25 years to life in prison. The witness

denied that he had any agreement with the State for his testimony, at which point

defense counsel proceeded to inquire about specific comments made on the jail

phone calls turned over by the State:




                                         5
Q:     Do you remember saying to your wife on the phone that you
       were set up on this case you’re in jail for so that you’d testify in
       this case?

A:     No, sir.

....

Q:     . . . Do you remember saying to your wife, “They might let me
       out behind this?”

A:     No, I don’t remember saying that.

....

Q:     Do you remember on March 17th saying to your wife, “My
       lawyer goes, man, we might even be talking a dismissal, you
       know, on my case”? Do you remember that?

A:     No, sir, I don’t remember that.

Q:     Did your lawyer ever tell you your case might be dismissed if
       you cooperate?

A:     No, sir.

Q:     You never made that statement to your wife?

A:     I never said that.

....

Q:     Do you remember saying you are the star witness in this case?

A:     No, sir.

Q:     Do you remember on the same date saying, “Hopefully this will
       help my case in some way. I think it will”? Do you remember
       saying that?

A:     No, sir, I don’t.



                                     6
      Q:     Do you remember at the end of that conversation saying, “My
             lawyer told me that they might dismiss it”? Do you remember
             saying that?

      A:     I’ve only spoken to my lawyer one time.

This discussion continued, and defense counsel then asked the court to allow the

witness to listen to recordings of phone calls to his wife from jail. After the witness

listened to the phone calls outside the presence of the jury, defense counsel

impeached him on each of his statements.

      Sheppard’s mother testified that she found a bloody knife near her driveway.

She also testified about the phone conversation that her husband had with Prince,

in which Prince asked if the police had come by, and he stated that he had stabbed

Lewis after a fight. Her testimony revealed a discrepancy with her husband’s

testimony: she claimed he told her about the call the same morning, while he had

claimed that he told her about the phone call later that that night.

      A jury found Prince guilty of murder, and he was sentenced to 50 years in

prison. Prince moved for a new trial based on an affidavit from a bystander outside

the court who averred that Sheppard’s mother approached him and claimed that

she knew where the murder weapon in the case was because Sheppard “threw it in

the river.” The mother further stated that she thought Sheppard “is a lot more

involved in this than she is saying.” In a subsequently filed “Motion for Inclusion

in the Appellate Record,” Prince included more affidavits to be considered with his



                                           7
amended motion for new trial. One affidavit, from Sheppard’s mother, stated that

she and her daughter found a knife with blood on it near Prince’s home, and that

her daughter told her she tossed the knife into nearby water. The other affidavit,

from defense investigator Kelly Kuhn, stated that Sheppard’s mother had made the

same claims to her. The trial court denied the motion for new trial, and this appeal

followed.

                                      Analysis

      Prince challenges his conviction in six issues. He asserts that the evidence is

legally insufficient to support his conviction. He argues that the State’s late

announcement of “surprise” witnesses resulted in abuses of the trial court’s

discretion in failing to grant a continuance and in allowing the witnesses to testify.

He also argues that the trial court erred when it denied his motions for mistrial

based on nonresponsive answers of a State’s witness and on allegedly improper

closing argument. He contends that the court erroneously admitted evidence that

Lewis accused him of sexually assaulting her. Finally, he argues that the court

erred by denying his motion for new trial based on “newly discovered” evidence

that Sheppard may have been a participant to the murder.

I.    Sufficiency of the evidence

      In reviewing the legal sufficiency of the evidence to support a criminal

conviction, we determine “whether, after viewing the evidence in the light most



                                          8
favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). As the exclusive judge of the

facts, the jury may believe or disbelieve all or any part of a witness’s testimony.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that

the fact finder resolved any conflicting inferences in favor of the verdict, and we

defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not re-evaluate the

weight and credibility of the evidence and thereby substitute our own judgment for

that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007).

      The indictment in this case charged that Prince committed murder by

“intentionally or knowingly caus[ing] the death of Christina Lewis, hereinafter

called the Complainant, by stabbing and cutting the Complainant with a deadly

weapon, namely, a knife.” See TEX. PENAL CODE § 19.02. Prince contends that the

evidence was insufficient to sustain his conviction for murder because no direct,

physical evidence linked him to Lewis’s death. Particularly, the knife used to

commit the crime was never found. However, circumstantial evidence is as

probative as direct evidence, and circumstantial evidence alone can be sufficient to

establish the guilt of an actor. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.



                                         9
2007). Here, circumstantial evidence allowed a rational fact finder to find the

essential elements of the crime beyond a reasonable doubt. The evidence indicated

that Prince was worried and upset Lewis might file charges against him for sexual

assault, providing a motive for murder. Although motive is not an element of

murder, it may be a circumstance that is indicative of guilt. Clayton, 235 S.W.3d at

781. Inside Lewis’s home on the night of her death, Shaw witnessed her fighting

with Prince. Sheppard saw Prince go inside for over an hour before returning

without wearing his shirt. Prince appeared nervous and paranoid, and once they

returned home, he took a shower and burned his clothes. When asked why he was

burning his clothes, he told Sheppard it was in case something was on them, and

that he thought Lewis might be dead. Hours after Lewis was found dead, Prince

called Sheppard’s stepfather, asking if the cops had been looking for him and

admitting to stabbing Lewis with a knife. Later, while awaiting trial in jail, Prince

told Mosely that he stabbed Lewis. Cumulatively, the circumstantial evidence

allowed a rational factfinder to determine that Prince intentionally and knowingly

caused the death of Lewis by stabbing her with a knife.

      Prince further asserts that the evidence is insufficient because numerous

witnesses allegedly had past criminal convictions and biases which undermined

their credibility. On this point, the State notes that Prince’s trial counsel cross-

examined Sheppard, Sheppard’s mother, and Mosely, all of whom have past



                                         10
criminal histories, and discussed those histories in closing argument. Moreover, the

jury is entitled to judge the credibility of the witnesses, and may choose to believe

or disbelieve their testimony. Chambers, 805 S.W.2d at 461. We may not re-

evaluate the weight and credibility of that testimony. Williams, 235 S.W.3d at 750.

      Accordingly, Prince’s issue challenging the sufficiency of the evidence is

overruled.

II.   “Surprise” witness issues
      Prince argues that the trial court abused its discretion when it denied his

motion for continuance based on the State’s reliance on “surprise witnesses.” He

further asserts that the trial court erred when it allowed the witnesses to testify.

      The standards for reviewing the decision to deny a motion for continuance

and for allowing an unlisted witness to testify are similar, but distinct. Both

decisions are reviewed for an abuse of discretion. See Gallo v. State, 239 S.W.3d

757, 764 (Tex. Crim. App. 2007) (continuance); Stoker v. State, 788 S.W.2d 1, 15

(Tex. Crim. App. 1989) (unlisted witness), abrogated on other grounds by Leday v.

State, 983 S.W.2d 713 (Tex. Crim. App. 1998); Merritt v. State, 982 S.W.2d 634,

636 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d, untimely filed) (both).

      A.     Denial of motion for continuance

      To establish an abuse of discretion when the trial court denies a motion for

continuance, there must be a showing that the defendant was actually prejudiced by



                                           11
the denial of his motion. Gallo, 239 S.W.3d at 764. “A bare assertion that counsel

did not have adequate time to interview the State’s potential witness does not alone

establish prejudice. Id. (citing Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.

Crim. App. 1995).

      Prince contends he was actually prejudiced by the court’s decision to allow

the witnesses to testify without granting his motion for a longer continuance,

pointing to the impeachment of Sheppard’s stepfather and to her mother’s

contradiction of her husband and her testimony regarding the knife. According to

Prince, his trial counsel lost the opportunity to further impeach the stepfather on

past conversations contained in the un-reviewed recordings of phone calls.

However, Prince does not identify the contents of those tapes or suggest the basis

for further impeachment. As to the mother, Prince suggests that, in light of post-

trial comments made outside the courthouse in which she claimed Sheppard

disposed of the knife used in the murder and that she was “more involved in this

than she is saying,” further time for discovery of her mobile phone conversations

could have yielded impeaching or exculpatory evidence.

      The State responds that such speculation does not demonstrate actual

prejudice, as would be required for Prince to obtain relief. See id. at 764–65. We

agree. Although Prince argues that further time to review recorded phone calls may

have resulted in further impeachment, he does not demonstrate what that



                                        12
impeachment may have concerned. Moreover, he cross-examined both Sheppard’s

stepfather and mother extensively on the issues he argues would have taken a more

central role had he received the continuance. See id. at 765. Additionally, we note

that any limitation Prince experienced in trying to review all of the evidence during

trial did not prevent him from listening to all recordings and using another

procedure, such as a motion for new trial, to demonstrate prejudice after the trial

concluded.

      Because there has been no demonstration that Prince suffered actual

prejudice as a result of the trial court’s denial of his motion for continuance, we

conclude that the trial court did not abuse its discretion.

      B.     Permission of “surprise” witness testimony

      When determining whether a court abused its discretion when it allowed a

witness to testify without notice to the defendant, we consider whether the

prosecutor’s actions constituted bad faith and the defendant reasonably could have

anticipated the witness’s testimony. Martinez v. State, 867 S.W.2d 30, 39 (Tex.

Crim. App. 1993); Stoker, 788 S.W.2d at 15. In examining whether the defense

reasonably could have anticipated the witness’s testimony, we generally consider

the degrees of surprise to the defendant, disadvantage inherent in that surprise, and

the trial court’s ability to remedy the issue, such as by granting a recess or




                                           13
postponement. Hamann v. State, 428 S.W.3d 221, 228 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d).

       The State argued that the first time it spoke to Sheppard’s stepfather was

three days before the commencement of voir dire. The next day, the State notified

defense counsel of its intent to call him as a witness and offered a proffer of his

expected testimony. Prince has not shown that any bad faith precipitated the State’s

late designation of witnesses. See Stoker, 788 S.W.2d at 15 (determining that no

bad faith on the part of the State existed when witness was a surprise to both

defendant and State). Likewise, the trial court granted a mid-trial recess to allow

Prince time to investigate. Although Prince argued he could not anticipate the

witnesses’ testimony, that factor is not, by itself, determinative of whether the trial

court abused its discretion. Id.

       In light of the absence of bad faith and the additional time permitted for the

defense to further investigate and prepare, we conclude that the trial court did not

abuse its discretion in allowing the late-designated witnesses to testify.

III.   Denial of motions for mistrial

       In his third and fourth issues, Prince argues that the court erred when it

denied his separate motions for mistrial based first on testimony that Sheppard was

“nothing but forthcoming” during her conversations with the homicide

investigator, and later on the suggestion of an improper closing argument.



                                          14
      We review a denial of a motion for mistrial for an abuse of discretion.

Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We must uphold the

court’s ruling if it was within the zone of reasonable disagreement. Id. “Only in

extreme circumstances, where the prejudice is incurable, will a mistrial be

required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

      A.    Improper bolstering of witness testimony

      During the State’s case-in-chief, the homicide investigator, Sgt. Clopton,

testified about his discussions with Sheppard during his investigation. After Sgt.

Clopton described her demeanor as “very nervous” during their conversation, the

prosecutor asked him whether her demeanor changed over time. The following

exchange then occurred:

      [Sgt. Clopton]: She was generally scared the entire time, but she was
                      completely forthcoming.

      [State]:        Okay.

      [Defense]:      Object. It’s nonresponsive.

      The Court:      Sustained.

      [Defense]:      And ask that the Court instruct the jurors to disregard
                      that comment.

      The Court:      Jury’s instructed to disregard the last comment made
                      by the witness.

      [Defense]:      And we move for a mistrial.

      The Court:      Overruled.



                                        15
      On appeal, Prince asserts that his motion for mistrial should have been

granted because Sgt. Clopton’s statement that Sheppard “was completely

forthcoming” indicated to the jury that he found her to be credible, effectively

bolstering her testimony.

      Prince’s objection was that Sgt. Clopton’s testimony was “nonresponsive,”

not that it amounted to improper bolstering. An objection solely to the

nonresponsive nature of testimony, however, is distinct from other objections that

would render the testimony inadmissible:

      Not every nonresponsive answer should be stricken. It is only when
      the unresponsive answer is also inadmissible that it should be
      stricken. . . . A “nonresponsive” objection alone, however, merely
      informs the trial court why the objection was not made prior to the
      answer being given. Even after the “nonresponsive” portion of the
      objection is made, there remains the question of the testimony’s
      admissibility. In this context, in order to properly exclude evidence or
      obtain an instruction to disregard, a party must address in its objection
      both the nonresponsiveness and the inadmissibility of the answer.
      Further, a blanket “nonresponsive” objection alone is an insufficient
      objection to preserve error where the response is a hybrid answer—
      that is, where a portion of the answer is objectionable and a portion of
      the answer is not objectionable.

Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.—Houston [14th Dist.] 1994,

pet. ref’d) (quoting Smith v. State, 763 S.W.2d 836, 841 (Tex. App.—Dallas 1988,

pet. ref’d)). To preserve a complaint for review, the record must show that the

complaint was made to the trial court by a timely and specific request, objection, or

motion. TEX. R. APP. P. 33.1(a)(1). Accordingly, a motion for mistrial must be both



                                         16
timely and specific. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).

Because Prince’s objection was that Sgt. Clopton’s testimony was nonresponsive,

not that it constituted improper bolstering, his motion for mistrial does not comport

with the argument now made on appeal, which accordingly has been waived.

      We overrule Prince’s challenge to the denial of his motion for mistrial due to

the testimony of Sgt. Clopton.

      B.     Improper jury argument

      During closing argument, the prosecutor summarized the evidence,

including the testimony of various witnesses. As the prosecutor discussed

Sgt. Clopton’s testimony, the following exchange occurred:

      [State]:        After Sergeant Clopton talked to those two people,
                      Larry Shaw and Katie Sheppard, he knew who did it.
                      He knew who was guilty. He met with the district
                      attorney–

      [Defense]:      Excuse me. I’m going to object to saying that the
                      police officer knew who did it.

      The Court:      Sustained.

      [Defense]:      That’s outside the record.

      The Court:      Sustained.

      [Defense]:      Ask the Court to instruct the jurors to disregard that,
                      please.

      The Court:      Disregard the last comment made by the prosecutor.

      [Defense]:      And we move for a mistrial.



                                         17
      The Court: Overruled.

      Proper jury argument falls into one of four categories: (1) summation of the

evidence presented at trial; (2) reasonable deductions drawn from that evidence;

(3) answers to the opposing counsel’s argument; and (4) pleas for law enforcement.

Guidrey v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State, 52

S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). To constitute

error, contested jury argument must be extreme or manifestly improper, violate a

mandatory statute, or inject new facts into the trial proceedings that are found to be

harmful to the accused. Sandoval, 52 S.W.3d at 857. In most cases, an instruction

to disregard improper argument is considered a sufficient response by the trial

court. See Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000). Thus, a

mistrial will only be required in extreme circumstances where the prejudice is

incurable. Hawkins, 135 S.W.3d at 77.

      Prince observes that it is error for a prosecutor to stress during closing

argument that a homicide detective believed a defendant was the perpetrator of the

crime. See Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. [Panel Op.]

1982). The trial court in this case correctly sustained Prince’s objection to the

improper argument, and it instructed the jury to disregard the testimony.

      Nevertheless, Prince contends that this was an extreme case in which the

instruction to disregard was insufficient because of Sgt. Clopton’s “specialized



                                         18
training, experience and prestige.” Prince provides no authority for the proposition

that closing argument regarding the opinion of a homicide detective is incurable in

a way that argument regarding opinions of other witnesses is not. On the contrary,

improper opinion testimony of law-enforcement officers is not considered to be so

extreme as to withstand any curative instruction from the court. See Huffman v.

State, 691 S.W.2d 726, 730 (Tex. App.—Austin 1985, no pet.) (holding instruction

to disregard sufficient to cure error of sheriff’s opinion testimony about appellant’s

guilt).

          Accordingly, we hold that the trial court did not abuse its discretion in

denying Prince’s motion for mistrial for improper closing argument.

IV.       Extraneous-offense evidence

          In his fifth issue, Prince argues that the trial court erred by allowing the jury

to hear testimony from Shaw and Sheppard regarding Lewis’s accusations that he

sexually assaulted her.

          We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

A trial court abuses its discretion if its decision lies outside the zone of reasonable

disagreement. Casey, 215 S.W.3d at 879.




                                             19
      Prince first contends that Shaw’s and Sheppard’s testimony amounted to

inadmissible extraneous-offense evidence. Rule 404(b) 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).

Nevertheless, extraneous-offense evidence may be admissible when it has

relevance apart from the prohibited use of character conformity. See id.;

Montgomery, 810 S.W.2d at 387. Evidence is relevant if it has any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence. TEX.

R. EVID. 401. Thus, extraneous-offense testimony may be relevant to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. See TEX. R. EVID. 404(b); Montgomery, 810 S.W.2d at 387.

      Even assuming that Shaw’s and Sheppard’s testimony concerned an

extraneous offense, it was nevertheless relevant apart from the prohibited use of

character conformity. The testimony that Prince feared sexual-assault allegations

by Lewis, that he wanted to meet her in the park on the night of her death, that he

wanted Sheppard to drive him to her home soon after the meeting in the park, and

that Shaw witnessed him arguing with her all circumstantially demonstrate

Prince’s potential motive. Although motive itself is not an element of murder, it is

relevant because it tends to make it more likely that the accused committed the



                                        20
crime. See Clayton, 235 S.W.3d at 781 (“[A]lthough motive is not an element of

murder, it may be a circumstance that is indicative of guilt.”); Guevara v. State,

152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Because the testimony was relevant

apart from prohibited character-conformity purpose, the trial court did not abuse its

discretion in determining that the evidence was admissible. See Montgomery, 810

S.W.2d at 387.

      Prince relies on a prior decision of this court, Guana v. State, No. 01-99-

00790-CR, 2000 WL 567629, at *6 (Tex. App.—Houston [1st Dist.] May 11,

2000, pet. ref’d) (not designated for publication), for the proposition that

extraneous-offense evidence of plan or scheme is inadmissible when a defendant

denies committing the act. The circumstances of Guana are readily distinguishable.

Guana correctly so held in an aggravated sexual assault case in which the

defendant’s position was that the criminal act had never occurred. Id. at *5–6.

Here, though, the extraneous-offense evidence was relevant to prove motive in a

murder case in which all parties agree that a criminal act was committed. See

Guevara, 152 S.W.3d at 50.

      Yet even if relevant testimony is admissible under Rule 404(b), a court must

nevertheless exclude the testimony if its probative value is substantially

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery, 810

S.W.2d at 387. Unfair prejudice refers to the tendency that a jury would decide the



                                         21
case on an improper basis. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim.

App. 2006). When conducting a Rule 403 analysis, a court must balance the

probative force of and the proponent’s need for the evidence against (1) any

tendency of the evidence to suggest decision on an improper basis; (2) any

tendency of the evidence to confuse or distract the jury from the main issues;

(3) 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 (4) the

likelihood that presentation of the evidence will amount to undue delay.

Gigliobianco, 210 S.W.3d at 641–42. There is a presumption that relevant

evidence is more probative than prejudicial. Montgomery, 810 S.W.2d at 389.

      Prince contends that the State did not need the testimony to establish the

elements of murder. However, as Prince himself observed when challenging the

legal sufficiency of the evidence, the State lacked direct evidence that he stabbed

Lewis in the throat. As circumstantial evidence of motive, the testimony

constituted a significant part of the State’s case against him. Prince further argues

that the evidence would have influenced the jury on an improper basis. But rather

than depicting him as a sexual offender, the testimony focused on Lewis’s

representations, not on any actions by Prince. Notably, Sheppard testified that she

did not actually believe Lewis’s accusations. Balancing the Gigliobianco factors,

we conclude that the trial court did not abuse its discretion in determining that the



                                         22
danger of unfair prejudice did not substantially outweigh the evidence’s probative

value. See TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 641–42.

      Accordingly, Prince’s fifth issue is overruled.

V.    Denial of motion for new trial

      Finally, Prince asserts that the trial court abused its discretion when it denied

his motion for new trial based on newly discovered evidence that a bloody knife

was found near Prince’s home and hidden by Sheppard.

      A trial court’s decision whether to grant a new trial based on newly-

discovered evidence is reviewed for an abuse of discretion. See Keeter v. State, 74

S.W.3d 31, 37 (Tex. Crim. App. 2002). The Code of Criminal Procedure provides

that a new trial “shall be granted to an accused where material evidence favorable

to the accused has been discovered since trial.” TEX. CODE CRIM.

PROC. art. 40.001. Under this provision, a defendant is entitled to a new trial if

(1) the newly discovered evidence was unknown or unavailable to the movant at

the time of his trial; (2) the movant’s failure to discover or obtain the evidence was

not due to his lack of diligence; (3) the evidence is admissible and is not merely

cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is

probably true and will probably bring about a different result on another trial.

Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). The trial court

does not abuse its discretion when the prosecution’s case was strong enough that



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the new evidence suggested by the affidavits, even if true, would probably not be

so compelling as to bring about a different result in a new trial. Id.

       In this case, evidence that Sheppard disposed of the murder weapon, at most,

impeaches her credibility. Even if accepted as true, the affidavits do not present

evidence that suggests a different result would have been reached at trial about

Prince’s guilt with respect to the murder charge. Sheppard’s mother was cross-

examined on the issue of whether she feared her daughter would be charged in this

case, to which she responded affirmatively. Nothing in the affidavits indicates that

Prince did not commit the offense of murder. Accordingly, the trial court did not

abuse its discretion when it denied Prince’s motion for new trial based on newly-

discovered evidence. See Wallace, 106 S.W.3d at 108.

       Prince’s sixth issue is overruled.

                                     Conclusion

       Having overruled Prince’s six appellate issues, we affirm the judgment of

the trial court.



                                                 Michael Massengale
                                                 Justice

Panel consists of Justices Jennings, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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