                             NUMBER 13-09-00165-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DESHONE JARMANE WHITE A/K/A
DESHONE JARMAINE WHITE,                                                       Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 24th District Court
                          of Goliad County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza

       Appellant, DeShone Jarmane White a/k/a DeShone Jarmaine White, was charged

by indictment with aggravated assault with a deadly weapon, a second-degree felony. See

TEX . PENAL CODE ANN . § 22.02(a)(2), (b) (Vernon Supp. 2008). After a jury trial, appellant

was convicted of the offense and was sentenced to ten years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice with $316 in court costs

assessed. By one issue, appellant argues that the trial court abused its discretion in

admitting evidence of his extraneous conduct during the guilt-innocence phase. We affirm.

                                               I. BACKGROUND

        The underlying offense involved an altercation between appellant and Robin Jones,

a man whom appellant knew. On the evening of August 4, 2008, appellant approached

Jones at a local horse stable where Jones was working. Appellant demanded to know the

whereabouts of an individual whom appellant believed had “snitched” on him in a prior

incident regarding a stolen pistol.1 At trial, Jones testified that he told appellant he did not

know the whereabouts of the individual, and appellant attacked him with a broken beer

bottle. A struggle ensued and resulted in Jones receiving life-threatening cuts to his arms,

including significant blood loss and damage to the attendant nerves and arteries in his

arms. Jones was taken to the hospital where his injuries were treated. Appellant was

arrested and charged with aggravated assault with a deadly weapon.2

        Appellant’s jury trial commenced on February 23, 2009. Appellant’s trial counsel

opted to make an opening statement immediately after the State made its opening

statement. In his opening statement, appellant’s trial counsel noted the following:

             Absolutely, Your Honor. May it please the Court . . . . Good morning.
        How are you? Ladies and gentlemen, what I ask you to do is listen to
        1
           The record reflects that appellant served tim e in a county jail as a result of the incident pertaining
to the stolen pistol.

        2
            The indictm ent read as follows:

        DESHONE JARMAINE W HITE on or about August 4, 2008 . . . did then and there
        intentionally and knowingly use a deadly weapon, to wit: a beer bottle, that in the m anner of
        its use and intended use was capable of causing death and serious bodily injury, and did then
        and there intentionally and knowingly cause bodily injury to ROBIN JONES by cutting him on
        the arm s with said deadly weapon; and the said DESHONE JARMAINE W HITE did then and
        there intentionally and knowingly threaten ROBIN JONES with im m inent bodily injury by the
        use of said deadly weapon . . . .

                                                        2
       everything with an open mind. There is no doubt whatsoever that there was
       a fight. There is no doubt whatsoever that someone was seriously injured.
       There’s no doubt that two people were injured by [the State’s] testimony—I
       mean by [the State’s] opening statement—excuse me, it’s not testimony, but
       there will be testimony to show that. So we’ve got two people injured.

              ....

               However, [l]adies and gentlemen, I am going to bring you evidence.
       I am going to bring you evidence. I’m going to bring you evidence showing
       that this was self-defense. And based on all the inconsistencies, based on
       all of the things that were not properly done in this case, ladies and
       gentlemen, I’m going to ask you for a verdict of not guilty at the end of this
       case and I believe I will bring you evidence, in addition to the holes in the
       State’s case, that will demand that. Thank you so much.

(Emphasis added.)

       Later, Jones was called to testify about his recollection of the events transpiring on

the evening in question. The following exchange took place between the State and Jones

when counsel for the State asked Jones about the altercation:

       Q [The State]:              Where was he?

       A: [Jones]:                 He had ran up here.

       Q:                          Out of view of where we have that sketch?

       A:                          Yes, sir. Yes, sir, it was probably way up in here
                                   somewhere.

       Q:                          Okay.

       A:                          So I waited on him and he come [sic] back and
                                   he started crying and he just had got out of jail
                                   and he said that his mom, mom don’t love me
                                   and, you know, and she’s—

       At this point, appellant objected to Jones’s testimony as improperly referencing

appellant’s prior bad acts, and he moved for a mistrial. The trial court requested that both

parties approach the bench, and the following exchange took place on the record:

                                             3
THE COURT:                 [Counsel for appellant], what was it that he just
                           said that you are concerned about?

[Counsel for appellant]:   He just testified that my client had gotten out of
                           jail, which would go, directly violate the motion in
                           limine—mentioned other bad acts or other
                           crimes, which the prosecution agreed to without
                           prompting on anybody’s part, especially my part.
                           He threw it out there in front of the jury and I
                           believe it’s prejudicial and we’d ask for a mistrial
                           based on those grounds.

[Counsel for the State]:   I did warn him not to talk about that. I had no
                           expectation he was going to say that. I think it
                           was just an accident on his part, but in any case,
                           we need to take this up anyways. I believe he
                           has opened the door by his defense of self-
                           defense. I have a case on that.

THE COURT:                 Well, why don’t I just instruct the jury to disregard
                           the comment that the Defendant was, had been
                           in jail immediately before this and then I’ll deny
                           your motion for mistrial, okay.

[Counsel for the State]:   But, Judge, I do want to take up the issue. I do
                           want to get into the fact that the motive of this
                           attack was DeShone arrested for possession of
                           a stolen pistol, okay. The victim had seen him
                           with a pistol sometime before, I think several
                           weeks before, and had warned him he was going
                           to get into trouble with that pistol. He was later
                           arrested and locked up and we believe that the
                           reason he attacked Robin is because he thought
                           Robin had been a snitch and he was mad . . . .
                           The motive for this attack was he was trying to
                           get revenge because he thought that Robin had
                           told the police about this pistol and that explains
                           and if he, if he raises the issue of self-defense,
                           which he has in his opening statement, then
                           we’re allowed to go into the motive—why he was
                           attacked.
       ....

[Counsel for appellant]:   I think we’re a little premature. I have not raised
                           the issue of self-defense yet because opening


                                     4
                                   statement is not evidence. There’s actually no
                                   evidence at this time of self-defense. I do
                                   anticipate, in all candor, that we will raise the
                                   evidence of self-defense and I don’t know
                                   whether or not they are going to get into what
                                   [the investigator] and my client—but we certainly
                                   intend to get into that.
              ....

       THE COURT:                  So, go ahead, [counsel for the State]. I’m
                                   denying the motion for mistrial.

       Shortly thereafter, the State questioned Jones, over appellant’s running objection,

about an encounter he had with appellant regarding the stolen pistol. Jones testified that

he believed that the altercation arose because appellant suspected that Jones turned him

in for possessing the stolen pistol.

       At the conclusion of the trial, the jury convicted appellant of the offense and

assessed punishment at ten years’ confinement with $316 in court costs. The trial court

accepted the jury’s verdict and made an additional finding that the evidence established

that appellant had used or exhibited a deadly weapon—a beer bottle—in committing the

underlying offense. See id. § 22.02(a)(2). This appeal followed.

                                  II. 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. 2007);

Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). A trial court's decision

will be upheld unless it lies outside the "zone of reasonable disagreement." Oprean, 201

S.W.3d at 726.




                                            5
                                          III. ANALYSIS

        In his sole issue on appeal, appellant asserts that the trial court abused its discretion

in admitting evidence of extraneous conduct engaged in by appellant—specifically, his prior

theft of a firearm. The State counters by arguing that: (1) appellant opened the door to

the admission of extraneous-offense evidence when he made a self-defense argument in

his opening statement; (2) the State’s evidence proved beyond a reasonable doubt that

appellant committed the extraneous offense of theft of a pistol; (3) evidence of the

extraneous offense established appellant’s motive for attacking Jones; and (4) the

probative value of the evidence outweighed any prejudicial effect.

A. Admissibility of Extraneous-Offense Evidence

        It is a fundamental principal of American jurisprudence that defendants must only

be tried for the crimes for which they have been charged, not other disconnected crimes.

Turner v. State, 754 S.W.2d 668, 671 (Tex. Crim. App. 1988) (citing Young v. State, 159

Tex. Crim. 164, 261 S.W.2d 836, 837 (Tex. Crim. App. 1953)). Therefore, to avoid undue

prejudice to defendants, the circumstances under which we permit evidence of extraneous

offenses at trial are limited. See TEX . R. EVID . 404(b) (providing that evidence of other

crimes, wrongs, or bad acts may be admissible for proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident); see also Tamez

v. State, 48 S.W.3d 295, 296 (Tex. App.–San Antonio 2001, no pet.) (holding that the

prohibition on the use of extraneous-offense evidence is a “basic tenet of our criminal

justice system”) (quoting Smith v. State, 12 S.W.3d 149, 152 (Tex. App.–El Paso 2000,

pet. ref’d)).




                                                6
       Appellant argues that the jury heard evidence of a prior offense involving a stolen

pistol and that the admission of this evidence violated Texas Rules of Evidence 104(b),

403, and 404(b). See TEX . R. EVID . 104(b), 403, 404(b). In determining whether the trial

court abused its discretion in admitting this evidence, we must assess whether: (1) the

State proved appellant’s involvement in the extraneous offense was probable beyond a

reasonable doubt, see id. at R. 104(b); (2) the evidence was properly admitted under an

exception to the general prohibition against evidence of extraneous bad acts, see id. at R.

404(b); and (3) the probative value of the evidence outweighed any unfair prejudice to

appellant. See id. at R. 403.

B. Texas Rule of Evidence 104(b)

       For evidence of appellant’s extraneous offense to be permitted at trial, the State was

required to demonstrate beyond a reasonable doubt that appellant committed the offense.

See id. at R. 104(b) (“When the relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject to, the introduction of evidence

sufficient to support a finding of the fulfillment of the condition.”); Ex parte Varelas, 45

S.W.3d 627, 630-31 (Tex. Crim. App. 2001).

       Jones testified that, on one evening, appellant showed Jones a pistol that appellant

had stolen. Jones recalled that appellant intended to sell the pistol to another individual

in exchange for cash and marihuana. Jones further testified that appellant stole the pistol

from a house that was situated behind Jones’s trailer. After Jones testified, written

statements made by Jones and appellant to law enforcement referencing the extraneous




                                             7
offense were admitted into evidence.3 See Fuller v. State, 829 S.W.2d 191, 197 (Tex.

Crim. App. 1992) (holding that under rule 104(b), evidence should not be excluded merely

because its relevance may depend upon the production of additional evidence at a later

point in the trial). The first exhibit, labeled State’s exhibit 21, was a voluntary statement

given by appellant on August 6, 2008, to Goliad County Sheriff’s Department officials, in

which appellant admitted that “[he] had been in jail on charges of theft of a firearm.” The

second exhibit, labeled Defendant’s exhibit 14, was a voluntary statement given by Jones,

in which Jones stated that “[appellant] then told me he was looking for James, and began

asking me why James and I had snitched him off. I asked him what he was talking about,

and told him that I had warned him that the gun was going to get him in trouble anyway.”

Having reviewed the record, we conclude that the State proved that appellant’s

involvement in the extraneous offense was probable beyond a reasonable doubt. See TEX .

R. EVID . 104(b); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (permitting

inferences by fact finders as long as each inference is supported by the evidence at trial).

C. Texas Rule of Evidence 404(b)

        Although the extraneous-offense evidence against appellant met the requirements

of rule 104(b), it must also meet the requirements of rule 404(b), or it must rebut a

defensive theory in order to be admissible. See TEX . R. EVID . 404(b); see also Casey v.

State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (“Extraneous-offense evidence is not

inadmissible under Rule 404(b) when it is offered to rebut an affirmative defense or a

        3
           Appellant did not object to the adm ission of either of the written statem ents. W e note that Texas
courts have held that “[t]he adm ission of inadm issible evidence can be rendered harm less if the sam e or
sim ilar evidence is introduced without objection elsewhere during trial.” Elder v. State, 132 S.W .3d 20, 27
(Tex. App.–Fort W orth 2004, pet. ref’d) (citing W illis v. State, 785 S.W .2d 378, 383 (Tex. Crim . App. 1989);
Brodrick v. State, 35 S.W .3d 67, 75 (Tex. App.–Texarkana 2000, pet. ref’d)).



                                                       8
defensive issue that negates one of the elements of the crime.”). The evidence of

appellant’s extraneous offense of theft of a firearm was admissible because it rebutted

appellant’s self-defense theory and proved a motive for the altercation.

        In his opening statement, appellant stated that he intended to present evidence to

support a self-defense theory.4 Appellant argues that the State improperly attempted to

refute his self-defense theory prior to his presentation of evidence supporting such a

theory. However, the court of criminal appeals has recently held that “a defense opening

statement . . . opens the door to the admission of extraneous-offense evidence . . . to rebut

the defensive theory presented in the defense opening statement.” Bass v. State, 270

S.W.3d 557, 563 (Tex. Crim. App. 2008) (citing Daggett v. State, 187 S.W.3d 444, 453-54

(Tex. Crim. App. 2005); Powell v. State, 63 S.W.3d 435, 438-40 (Tex. Crim. App. 2001)).

Specifically, the Bass court noted that:

        [a]lthough a defensive opening statement is not itself evidence, it does
        inform the jury of “the nature of the defense relied upon and the facts
        expected to be proved in their support.” When, as here, the defense
        chooses to make its opening statement immediately after the State’s opening
        statement, the State may reasonably rely on this defensive opening
        statement as to what evidence the defense intends to present and rebut this
        anticipated defensive evidence during its case-in-chief as opposed to waiting
        until rebuttal.

Id. at 563 n.7 (citations omitted). Therefore, the mere mentioning of the self-defense

theory in appellant’s opening statement “open[ed] the door to the admission of extraneous-

offense evidence . . . to rebut the defensive theory presented in the defense opening

statement.” Id. at 563.

        4
         In his voluntary statem ent, appellant stated that he attacked Jones with the broken beer bottle after
Jones allegedly punched him in the face, hit him on the head with a stick several tim es, and brandished a
pocket knife.



                                                      9
       To rebut appellant’s self-defense theory, the State questioned Jones about the day

appellant showed him the pistol. Jones stated that after appellant showed him the pistol,

he warned appellant that “you’re going to get your ass in some shit.” However, appellant

ignored Jones’s warning and emphasized that he was just going to “switch it off.” Later,

appellant was arrested for theft of the pistol, and he served some time in jail for the

offense. Upon release from jail, appellant sought out Jones to find out why he had

“snitched” on him. Jones testified that when he denied knowing anything about the

situation, appellant attacked him.

       It is clear that the extraneous-offense evidence was offered to negate appellant’s

theory that Jones was the first aggressor and establish that appellant intentionally attacked

Jones because appellant believed that Jones had “snitched” on him. See TEX . R. EVID .

404(b); see also Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972)

(“[M]otive refers to an emotion that would provoke or lead to the commission of a criminal

offense. Evidence to show motive is the circumstantial evidence that would appear to

cause or produce the emotion.”). We therefore conclude that the extraneous-offense

evidence was admissible to rebut appellant’s self-defense theory and to prove appellant’s

motive for attacking Jones. See TEX . R. EVID . 404(b).

D. Texas Rule of Evidence 403

       Finally, we do not believe the trial court abused its discretion in concluding that the

probative value of the extraneous-offense evidence substantially outweighed the danger

of unfair prejudice to appellant. See id. at R. 403. “Unfair prejudice” does not arise from

the mere fact that the evidence injures a party’s case, because virtually all evidence that



                                             10
a party offers will be prejudicial to the opponent’s case. Casey, 215 S.W.3d at 883.

Evidence is “unfairly prejudicial” when it tends to have some adverse effect on a defendant

beyond tending to prove the fact or issue that justifies its admission. Id.

               [A] trial court, when undertaking a Rule 403 analysis, must balance (1)
       the inherent probative force of the proffered item of evidence along with (2)
       the proponent’s need for that evidence against (3) any tendency of the
       evidence to suggest [a] decision on an improper basis, (4) any tendency of
       the evidence to confuse or distract the jury from the main issues, (5) 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 (6) the
       likelihood that presentation of the evidence will consume an inordinate
       amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In practice, the

factors in this balancing test frequently blend together. Id.

       Applying these factors, we first note that the inherent probative force of the

extraneous offense was significant because it tended to prove appellant’s motive for

attacking Jones, and it rebutted appellant’s self-defense theory. See Casey, 215 S.W.3d

at 882 (stating that extraneous-offense evidence was probative to dispute the central issue

at trial as raised by the defense). Second, the State’s need for the evidence was

significant because it was the only evidence available to the State to rebut appellant’s self-

defense theory. Id. at 883-84 (noting that the probative force of the extraneous-offense

evidence centered on the State’s inherent inability to rebut defensive arguments).

       While the evidence was certainly prejudicial, we cannot say that such prejudice was

unfair. There is no indication in the record that the jury in this case was unequipped to




                                             11
evaluate the probative force of the evidence.5 Because the evidence was significant, but

not repetitious, it did not consume an inordinate amount of time. Furthermore, there is

nothing in the record to show that the evidence confused the jury or suggested that a

decision based on an improper basis (i.e., a verdict based on the extraneous offense rather

than the instant offense).

         We presume that the trial court applied the same analysis in deciding to allow the

extraneous-offense evidence against appellant. See Williams v. State, 958 S.W.2d 186,

195-96 (Tex. Crim. App. 1997) (holding that the balancing test is presumed to have been

conducted if the trial court is silent on the test). We give great deference to the trial court’s

conducting of the test, and we do not believe that the probative value of the extraneous-

offense evidence in this case outweighed its prejudicial nature.

         Because we have concluded that the State proved appellant’s involvement in the

extraneous offense was probable beyond a reasonable doubt, the evidence was properly

admitted to prove motive and to rebut appellant’s self-defense theory, and the probative

value of the evidence outweighed the unfair prejudice to appellant, we conclude that the

trial court did not abuse its discretion in admitting the extraneous-offense evidence. See

Casey, 215 S.W.3d at 879; see also Oprean, 201 S.W.3d at 726. Accordingly, we overrule

appellant’s sole issue.




         5
           W e note that appellant did not request that the jury be instructed to disregard Jones’s statem ents
pertaining to the stolen pistol. In fact, the trial court offered to m ake a lim iting instruction to the jury regarding
Jones’s first reference to appellant’s incarceration, but appellant declined the offer. Moreover, the record does
not reflect that appellant m oved the trial court to conduct a hearing outside the presence of the jury on the
adm issibility of the extraneous-offense evidence.



                                                          12
                                        IV. CONCLUSION

         Having overruled appellant’s sole issue on appeal, we affirm the judgment of the trial

court.

                                                    ________________________
                                                    DORI CONTRERAS GARZA,
                                                    Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 28th day of August, 2009.




                                               13
