                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00414-CR


                        ROBERT CHARLES HINES, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 47th District Court
                                   Potter County, Texas
               Trial Court No. 66,474-A, Honorable Dan L. Schaap, Presiding

                                   September 26, 2014

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant, Robert Charles Hines, appeals his conviction for burglary of a

habitation and ninety-nine year sentence. He contends that 1) the trial court erred in

admitting evidence of an extraneous offense, 2) the trial court erred in failing to give a

limiting instruction at the time the evidence was admitted, and 3) his counsel was

ineffective in failing to request a limiting instruction at the time the evidence was

admitted. We reverse.
        Background

        The dispute involved the admission of evidence disclosing (during the guilt/

innocence phase of the trial) that appellant had been in prison for some other offense.

The evidence consisted of appellant’s parole officer testifying that he was assigned to

appellant around August 1, 2012, and that such assignments were normally made

within 24 hours after the parolee was released from prison. Furthermore, the State

offered the evidence to purportedly rebut or clarify testimony of appellant’s brother

regarding the times at which appellant may have visited his home. The latter happened

to be the abode that appellant was accused of burglarizing some five months later in

December of 2012. By that time, two individuals other than appellant’s brother were

living there. And, they too acknowledged having invited appellant over to the house on

various occasions before the burglary and while he lived in a separate house next to

them.

        It happened that someone burglarized the house by breaking through a window,

and appellant’s fingerprints were found on the broken window glass. The burglar not

only entered the house but also ate some food and drank some alcoholic beverages

found therein before leaving with various types of property.     Left, however, was a

cushion that was once in the abode that appellant inhabited before being evicted.

        Appellant attempted to explain the presence of his fingerprints on the broken

glass by suggesting that they had been left while he was there on prior occasions per

invitation by the prior and present tenants. The explanation was unconvincing, given

the jury’s verdict of guilty.




                                           2
       Authority

       Appellant invoked Texas Rules of Evidence 403 and 404(b) when objecting to

the admission of the parole officer’s testimony. We assume arguendo that the evidence

in question had some purpose other than to insinuate that appellant had a bad

character. See TEX. R. EVID. 404(b) (stating that evidence of other crimes, wrongs, or

acts is inadmissible to prove character in order to show conformity therewith but may be

admissible for other purposes). Again, the State argued that the evidence revealing

appellant had been previously imprisoned was admissible to refute a defensive theory

or correct a false impression. Yet, the evidence did little to further either purpose.

       Appellant’s brother vacillated about whether appellant had been in the house

prior to August of 2012. Eventually, though, he was asked for a date on which he was

sure appellant was present in the house. The witness replied August 13, 2012. When

asked if he “remember[ed] whether or not . . . [appellant] ever came to visit you at . . .

[the] house before” then, he answered “No, ma'am.” Such testimony hardly illustrates a

false impression concerning whether appellant was there in June or July of 2012.

Admitting that August 13th was the first date on which he could remember appellant

being there cannot reasonably be interpreted as suggesting he was at the house in

June or July. So, the parole officer’s testimony was not needed to refute a false

impression.

       Nor can it be said that the parole officer’s testimony was needed to impeach the

witness’ credibility to the extent the witness testified that appellant visited in June or

July. Again, the witness concluded that he could not remember appellant visiting during

those months. Simply put, there was nothing to impeach.



                                              3
       And, even if the witness’ testimony could be interpreted as somehow insinuating

that appellant did visit during those two summer months, the parole officer spoke about

what usually occurs viz the time between a prisoner’s release and his assignment to a

parole officer. However, the parole officer later admitted to having no actual recollection

of appellant’s situation or whether it fell within the parameters of what “usually

happens.” So, it did not foreclose the possibility that appellant could have visited in July,

if not June.

       As for rebutting appellant’s defensive theory, attempting to prove that appellant

could not have visited in June or July falls quite short of proving he did not visit the

home with permission of the tenant during the five-month span between August 1st and

the date of the burglary.      Indeed, it is undisputed that he so visited the home.

Consequently, the State’s disclosure of appellant having been imprisoned before

August 1st did little to rebut the defensive theory that his fingerprints were left while

lawfully within the home in August and the months thereafter.

        We next observe that authority long ago characterized evidence of prior criminal

conduct as inherently prejudicial. Chavez v. State, 866 S.W.2d 62, 65 (Tex. App.—

Amarillo 1993, pet. ref’d); accord Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim.

App. 1994) (wherein the Court of Criminal Appeals said that it has “consistently

acknowledged that the introduction of extraneous offenses to the jury is inherently

‘prejudicial’”). It was so recognized because of its tendency to play favorably on the

jury’s natural inclination to infer guilt of the charged offense from the extraneous

offenses. Abdnor v. State, 871 S.W.2d at 738. And, rather than attempt to try and

ameliorate the prejudice inherent in the evidence via an immediate limiting instruction,



                                              4
the trial court gave no such limiting instruction. Rather, it waited until charging the jury

at the close of evidence to undertake the effort. This would not be problematic had the

Court of Criminal Appeals not held that limiting instructions are to be given when the

prejudicial evidence is received. Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim.

App. 2007). Delaying them leaves open the possibility that the jurors will consider the

evidence for an improper purpose.1

        The record also illustrates that the parole officer was called as a rebuttal witness

by the State after appellant had closed his defense. Though his appearance on the

witness stand was brief, the substance of his testimony concerned the disclosure of

appellant’s prior imprisonment and the supposed date of his release therefrom. More

importantly, he was the last witness to testify before deliberations upon appellant’s

alleged guilt.    One can hardly question that these circumstances had a substantial

likelihood of focusing the jury’s attention on the inherently prejudicial evidence imparted

by the witness.

        In assessing whether potentially relevant evidence should be excluded because

its prejudicial nature substantially outweighs its probative value, we consider 1) the

probative force of the evidence, 2) the need for the evidence, 3) the tendency of the

evidence to suggest a decision on an improper basis, 4) the tendency of the evidence to

confuse or distract the jury, 5) the tendency of the evidence to be given undue weight,

and 6) the likelihood that the presentation of the evidence will consume an inordinate

amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210


        1
         When deciding to overrule appellant’s objection to the parole officer’s testimony, the trial court
informed the parties that it would instruct the jurors on the limited use to which they could put the
evidence. Though appellant did not request an immediate instruction, the trial court nonetheless had
done so sua sponte on previous occasions during trial.

                                                    5
S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Dekneef v. State, 379 S.W.3d 423, 433

(Tex. App.—Amarillo 2012, pet. ref’d). The first four of those criteria clearly favored

excluding the testimony at issue. Its probative value or relevance was marginal at best.

The State had little need for it.        Attributing to an accused prior criminal conduct is

undoubtedly prejudicial and facilitates the jury’s penchant to infer present guilt from prior

criminal conduct. And, the prejudicial testimony came from the last witness called only

for the purpose of soliciting that prejudicial testimony. As for the last indicia, not much

time was spent on presenting the evidence, but the potentially unacceptable impact it

had due to its timing is evident. Reasonable minds cannot disagree over the application

of Rule 403 here; the prejudicial effect of disclosing that appellant had been previously

imprisoned far outweighed any minimal probative value it may have had. The trial court

abused its discretion in admitting it.

       Having found error, we now assess its potential harm. Because the error was

not of constitutional magnitude, we apply Texas Rule of Appellate Procedure 44.2(b). It

requires us to ignore the error if it did not affect appellant’s substantial rights. TEX. R.

APP. P. 44.2(b).    And, that determination is made by considering everything in the

record, including any testimony or physical evidence admitted for the jury's

consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in the

case, the jury instructions, the State's theory and any defensive theories, closing

arguments, voir dire, and whether the State emphasized the error. Easley v. State, 424

S.W.3d 535, 542 (Tex. Crim. App. 2014).




                                                6
       Many of the factors mentioned in Easley were addressed either directly or

indirectly when we analyzed whether error occurred, and none of those weighed in favor

of finding the error harmless. To that, we add the State’s allusion to appellant having

been imprisoned during its closing argument. So, we can say that the inadmissible

evidence was emphasized.

       That the State had the opportunity to achieve the end it sought but without

interjecting the prejudicial evidence is also depicted in the record. Appellant offered to

stipulate that he could not have been in Amarillo or Potter County before August 1st.

But, the State rejected the offer because it thought the stipulation invited

misinterpretation.   So, it insisted on offering prejudicial evidence on a topic of little

importance.

       On the other side of the scale, though, is the presence of evidence supporting

conviction. Appellant’s fingerprints were on numerous pieces of broken glass, and he

had access at one time to the pillow removed from the neighboring house and found in

the burglarized home. But, again, there is testimony that appellant not only visited the

house but also “stayed there” at times when it was inhabited by his nephew. That he

had complete access to the abode when visiting his nephew and brother was also

established. So too was it suggested that appellant and another individual helped install

plastic over the window in question when his brother lived in the house; that suggests

that appellant lawfully could have been in the vicinity of the broken window to leave his

fingerprints.   Finally, an officer also established that fingerprints could remain on a

surface for a long period of time. In short, proof of appellant’s guilt, though adequate

and present, was not overwhelming.



                                             7
       Given the totality of the record, the nature of the error, the inherent prejudice

attached to the evidence admitted, the State’s conscious decision to eschew an

opportunity to avoid the error, the State’s reiteration of the inadmissible evidence at

closing, and the less than overwhelming evidence of appellant’s guilt, we cannot but

conclude that the error affected appellant’s substantial rights. Thus, he suffered harm

from it.

       We sustain appellant’s first issue, reverse the judgment, and remand the cause

to the trial court.



                                                      Brian Quinn
                                                      Chief Justice



Do not publish




                                           8
