                        NUMBER 13-18-00051-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KODELL VALENTINO FOSTER,                                                Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 54th District Court
                       of McLennan County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Contreras

      Appellant Kodell Valentino Foster appeals three convictions of sexual assault,

each a second-degree felony. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw

through 2017 1st C.S.). By three issues, appellant argues that: (1) he was denied his

constitutional right to a speedy trial, (2) the trial court erred when it allowed the
introduction of character evidence, and (3) the trial court erred when it allowed the

introduction of hearsay evidence. We affirm.

                                        I.    BACKGROUND1

        Appellant was arrested in December of 2014. In January of 2015, a grand jury

indicted appellant on three counts of sexual assault. See id. On March 10, 2016,

appellant filed a motion for speedy trial and asked that the charges be dismissed with

prejudice. However, no order setting a hearing on the motion was filed.

        On September 29, 2016, appellant’s defense counsel filed a motion to withdraw as

attorney of record. The trial court held a hearing on the motion on October 21, 2016, and

the following exchanged occurred:

        [Defense Counsel]:              Mr. Foster, tell the Judge why you asked me to
                                        file the motion to withdraw.

        [Appellant]:                    Well, sir, with all due respect to the Court.
                                        [Counsel] and I, we get along great. I just feel
                                        like the process isn’t moving along as—as it
                                        should be. We filed a motion for a speedy trial
                                        on March the 1st, 2016. Also, there’s evidence
                                        that proves my innocence that—that’s came
                                        [sic] out, I believe, that we do have. And I just
                                        haven’t been able to get any answers up until
                                        now. I’ve been incarcerated for almost two
                                        years. I haven’t gotten absolutely any answers
                                        as far as why I’m still here, why I cannot get a—
                                        a date to go to trial. Since, obviously, the case
                                        will not get dismissed, I would like to go to trial.
                                        But I can’t get a date to go to trial. And neither I
                                        or [Counsel] have been able to get an answer,
                                        so . . . .




        1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).


                                                    2
       The trial court told appellant that, at that time, trial was set for November 7, 2016—

just over two weeks away. At the end of the hearing, the trial court asked, “anything else

from the State or from the defense at this time?”, and defense counsel answered “No,

sir.” The trial court responded: “Okay. Then at this time, I’m going to deny the Motion to

Withdraw.”

       Trial began on December 4, 2017.2             The complainant testified that she was

seventeen years old when the offenses took place. She explained that, while under the

influence of prescribed medication, she was walking down the street when appellant

offered to give her a ride to her friend’s house. The complainant accepted his offer and

got in the vehicle. Appellant, however, drove to his house and sexually assaulted her.

After the assault was over, appellant drove the complainant away from his house, and

she got out of the car once she recognized a gas station they had passed. Appellant had

two roommates at the time of the assault: Estella and Elmer Sadler. Both Mr. and Mrs.

Sadler testified at trial.

       The State called Mrs. Sadler as a witness during its case in chief. During cross-

examination, appellant’s defense counsel asked Mrs. Sadler if she had any concerns

about her children being around appellant when appellant was home, and she answered

“No.” The State, on re-direct, asked Mrs. Sadler whether she knew appellant had recently

been paroled and whether she was aware of his prior felony convictions. Defense counsel

objected to this testimony under Texas Rules of Evidence 401, 402, 403, 404(b), and 802.

The trial court overruled the objections. Mrs. Sadler testified that: she knew appellant

had moved in with her and her husband shortly after being released on parole; she knew


       2 Appellant and the State filed agreed requests for a continuance on October 21, 2016; July 3,
2017; and September 13, 2017.

                                                 3
appellant had been imprisoned for multiple years prior to his release on parole; and she

did not know he had convictions for possession of cocaine, possession of a controlled

substance with intent to deliver, and possession of a firearm by a felon.

       The jury found appellant guilty of all three counts. The State sought to enhance

appellant’s punishment due to a prior felony conviction, see id. § 12.42(b) (West, Westlaw

through 2017 1st C.S.), and appellant pleaded true to the enhancement allegation. The

jury assessed punishment at confinement for life and a $10,000 fine for each count, with

the sentences to run concurrently. See id. § 12.32 (West, Westlaw through 2017 1st

C.S.) (providing that a first-degree felony is punishable by imprisonment for a term

between five to ninety-nine years and a fine not to exceed $10,000). This appeal followed.

                              II.   RIGHT TO SPEEDY TRIAL

       By his first issue, appellant argues that his right to a speedy trial was violated.

A.     Applicable Law and Standard of Review

       A criminal defendant has the right to a speedy trial. See U.S. CONST. amends. VI,

XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West, Westlaw

through 2017 1st C.S.); Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014);

see also Dillingham v. U.S., 423 U.S. 64, 65 (1975) (noting that the right to a speedy trial

is triggered by formal indictment or arrest). “This ensures that the defendant is protected

from oppressive pretrial incarceration, mitigates the anxiety and concern accompanying

public accusations, and ensures that the defendant can mount a defense.” Henson v.

State, 407 S.W.3d 764, 766 (Tex. Crim. App. 2013) (citing Barker v. Wingo, 407 U.S. 514,

532 (1972)).




                                              4
       We analyze speedy trial claims “on an ad hoc basis,” weighing and balancing the

factors set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the

delay, (3) the assertion of the right, and (4) the prejudice to the accused. Cantu v. State,

253 S.W.3d 273, 280 (Tex. Crim. App. 2008); see Barker, 407 U.S. at 530. “While the

State has the burden of justifying the length of delay, the defendant has the burden of

proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280.

“The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s

degree of culpability for the delay.” Id.

       We apply a bifurcated standard of review to a trial court’s ruling on a speedy trial

claim. Id. at 282. We review the factual components for an abuse of discretion, while we

review the legal components de novo.          Id. Review of the individual Barker factors

necessarily involves factual determinations and legal conclusions, but the balancing test

as a whole is “a purely legal question.” Id. With regard to the trial court’s resolution of

factual issues, we view all the evidence in the light most favorable to the trial court’s

ultimate ruling. Id.

B.     Preservation

       Preservation requirements apply to speedy-trial claims. Henson, 407 S.W.3d at

768. “Without a requirement of preservation, a defendant would have great incentive not

to insist upon a speedy trial and then to argue for the first time on appeal that the

prosecution should be dismissed because of delay.” Id. at 769. Thus, a defendant can

“either fail to insist upon a speedy trial and reap the benefits caused by delay, or he can

insist on a prompt trial, and if it is not granted, argue for a dismissal.” Id.




                                               5
          To preserve a speedy-trial claim for appellate review, a defendant must: (1) raise

the claim before trial begins, (2) present evidence of the claim to the trial court, and (3)

obtain a ruling after presentation of evidence of the claim. See TEX. R. APP. P. 33.1;

Gonzalez, 435 S.W.3d at 805–08; Henson, 407 S.W.3d at 768–69; Crocker v. State, 441

S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Dean v. State, 995

S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref’d). Appellate courts will generally find

that a trial court made an implicit ruling on an objection when the objection was brought

to the trial court’s attention and the trial court’s subsequent action clearly addressed the

complaint. See James v. State, 102 S.W.3d 162, 169 (Tex. App.—Fort Worth 2003, pet.

ref’d); State v. Kelley, 20 S.W.3d 147, 153–54 & n.3 (Tex. App.—Texarkana 2000, pet.

ref’d).

C.        Analysis

          Here, appellant filed a motion for speedy trial on March 10, 2016, but he did not

obtain a hearing or an explicit ruling on the motion. On appeal, appellant points to the

trial court’s hearing on the motion to withdraw in support of his speedy trial argument.

The State argues that appellant did not preserve this complaint for our review. Assuming,

without deciding, that appellant preserved error, we proceed to analyze the Barker

factors. Cantu, 253 S.W.3d at 280.

          1. The First Factor: Length of Delay

          The length of the delay between an initial charge and the defendant’s demand for

speedy-trial acts as a triggering mechanism. See Zamorano v. State, 84 S.W.3d 643,

648 (Tex. Crim. App. 2002) (en banc); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim.

App. 1999) (en banc). Unless the delay is presumptively prejudicial, courts need not



                                              6
examine the other three factors. Zamorano, 84 S.W.3d at 648. Thus, any speedy trial

analysis depends first upon whether the delay is more than “ordinary”; if so, the longer

the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant.

Gonzalez, 435 S.W.3d at 809; Zamorano, 84 S.W.3d at 649.

       Here, the delay of twenty-two months between appellant’s arrest and the denial of

his motion for speedy trial is presumptively prejudicial and sufficient to trigger a Barker

analysis. See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992) (noting that a one-

year delay is presumptively prejudicial); Shaw v. State, 117 S.W.3d 883, 888–89 (Tex.

Crim. App. 2003) (same). Because the delay of twenty-two months triggers judicial

examination of the claim, this factor weighs against the State. See Gonzalez, 435 S.W.3d

at 809; Zamorano, 84 S.W.3d at 649.

       2. The Second Factor: Reason for Delay

       Once the length of time is found to be presumptively prejudicial, the burden of

justifying the delay falls on the State. Smith v. State, 436 S.W.3d 353, 355 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (citing Cantu, 253 S.W.3d at 280); see Zamorano,

84 S.W.3d at 649. Unjustifiable reasons for the delay count towards the “length of delay,”

while justifiable reasons for delay do not. Gonzales, 435 S.W.3d at 810; see Munoz, 991

S.W.2d at 822 (“A valid reason for the delay should not be weighed against the

government at all.”). For example,

       A deliberate attempt to delay the trial in order to hamper the defense should
       be weighed heavily against the government. A more neutral reason such
       as negligence or overcrowded court should be weighed less heavily but
       nevertheless should be considered since the ultimate responsibility for such
       circumstances must rest with the government rather than with the
       defendant. Finally, a valid reason, such as a missing witness, should serve
       to justify appropriate delay.

Zamorano, 84 S.W.3d at 649.
                                             7
       This was a criminal prosecution for three offenses of sexual assault, where the

stories from the accused and complainant were in conflict. The State explained at the

hearing on appellant’s motion to withdraw that part of the delay occurred due to DNA

testing that was ordered. The record indicates that the initial request for DNA testing was

submitted on December 19, 2014 and that the initial report was issued on July 16, 2015.

The report excluded appellant as the source of the DNA recovered from the complainant

after the assault.

       In a sexual assault case, a delay due to pending DNA results that could favor either

the State or the accused is a justifiable, valid reason for the delay. See Barker, 407 U.S.

at 531–32; Brown v. Bobby, 656 F.3d 325, 333–34 (6th Cir. 2011); State v. Davis, 549

S.W.3d 688, 702–03 (Tex. App.—Austin 2017, no pet.); Celestine v. State, 356 S.W.3d

502, 507–08 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In the underlying hearing

on appellant’s motion to withdraw, appellant conceded as much, stating that he believed

the DNA results from July 16, 2015 proved his innocence. Thus, the delay of seven

months between appellant’s arrest in December of 2014 and the initial DNA results issued

on July 16, 2015 was a valid and justifiable delay. See Brown, 656 F.3d at 333–34;

Celestine, 356 S.W.3d at 507–508; Davis, 549 S.W.3d at 702–03.

       Excluding the time required for the initial DNA testing (seven months) from the total

length of the delay at the time of the hearing on appellant’s motion to withdraw (twenty-

two months), we are left with a delay of about fifteen months. The record does not contain

an explanation for this delay, but part of it may have been due to further DNA testing

requested by the State. In the absence of an explanation, the trial court could not

presume either a deliberate delay by the State in order to prejudice the defendant or a



                                             8
valid reason for the delay. Huff v. State, 467 S.W.3d 11, 29 (Tex. App.—San Antonio

2015, pet. ref’d) (citing Shaw, 117 S.W.3d at 889; Dragoo v. State, 96 S.W.3d 308, 314

(Tex. Crim. App. 2003)).          At most, the delay amounted to official negligence.                  See

Zamorano, 84 S.W.3d at 649–50. Thus, we conclude that the delay of fifteen months

weighs against the State, but not heavily. 3 See Dragoo, 96 S.W.3d at 314; Zamorano,

84 S.W.3d at 649 (“Although negligence is obviously to be weighed more lightly than a

deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide

between acceptable and unacceptable reasons for delaying a criminal prosecution once

it has begun”); Huff, 467 S.W.3d at 29; Smith, 436 S.W.3d at 365.

        3. The Third Factor: Assertion of Right

        Appellant filed a motion for speedy trial and asked the court to dismiss the case,

not to set a trial date. “If a defendant fails to first seek a speedy trial before seeking

dismissal of the charges, he should provide cogent reasons for this failure.” Cantu, 253

S.W.3d at 283; see State v. Davis, 549 S.W.3d 688, 704 (Tex. App.—Austin 2017, no

pet.). Appellant provided no such reasons here. Also, “[r]epeated requests for a speedy

trial weigh heavily in favor of the defendant, while the failure to make such requests

supports an inference that the defendant does not really want a trial, he wants only

dismissal.” Cantu, 253 S.W.3d at 283; see Henson, 407 S.W.3d at 769. Here, appellant

only raised his speedy-trial complaint once, and it was raised fifteen months after being



        3 We note that appellant’s trial began almost fourteen months after the hearing on his motion to
withdraw. Subsequent to that hearing, the State and appellant filed joint, agreed motions to reset the trial
date on October 21, 2016; July 3, 2017; and September 13, 2017. Those actions “are inconsistent with a
demand for a speedy trial,” see Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013), and we
exclude agreed resets from our delay calculation. Lopez v. State, 478 S.W.3d 936, 942 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d) (quoting Celestine v. State, 356 S.W.3d 502, 507–08 (Tex. App.—
Houston [14th Dist.] 2009, no pet.)). The agreed resets covered the time frame from the hearing on the
motion to withdraw until trial began.

                                                     9
arrested. “Under Barker, appellant’s failure to diligently and vigorously seek a rapid

resolution is entitled ‘strong evidentiary weight.’” Cantu, 253 S.W.3d at 283 (quoting

Barker, 407 U.S. at 531–32).

       This factor weighs against appellant.

       4. The Fourth Factor: Prejudice

       “Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the fourth

Barker factor examines whether and to what extent the delay has prejudiced the

defendant.” Id. at 285. We analyze the prejudice to appellant in light of the interest the

speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration,

(2) to minimize the accused’s anxiety and concern, and (3) to limit the possibility that the

accused’s defense will be impaired. Id. Prejudice to the accused’s defense is the most

serious “because the inability of a defendant adequately to prepare his case skews the

fairness of the entire system.” Id.

       Appellant did not testify that he was anxious or concerned about the case or that

his incarceration was oppressive. More importantly, appellant did not testify or argue that

his defense was impaired in any way. Finally, appellant raised his speedy-trial complaint

fifteen months after being arrested, and his silence for the entirety of that time suggests

that any hardships he suffered were either minimal or caused by other factors. See United

States v. Palmer, 537 F.2d 1287, 1288 (5th Circ. 1976) (concluding that appellant’s

silence for thirty months after arrest worked against him); Cantu, 253 S.W.3d at 284–85

(similar).

       This factor weighs heavily against defendant.

D.     Balancing Test



                                             10
       In sum, the evidence in this case fully supports the trial court’s ruling. There was

a delay of fifteen months that weighs in favor of finding a violation of appellant’s right to a

speedy trial. However, from the record, we conclude that appellant did not really want a

speedy trial; he wanted only a dismissal of the charges. The nature of the State’s delay

and official negligence, the tardiness of appellant’s sole assertion of his speedy-trial right,

and the lack of any substantial personal or defense prejudice resulting from the State’s

delay convinces us that the trial court did not err in denying appellant’s motion for speedy

trial. We conclude appellant was not denied his Sixth Amendment right to a speedy trial.

See Barker, 407 U.S. at 534; Cantu, 253 S.W.3d at 286–87; Dragoo, 96 S.W.3d at 308.

       We overrule appellant’s first issue.

                                 III.   CHARACTER EVIDENCE

       By his second issue, appellant argues that the trial court erred when it allowed the

State to introduce character evidence because (1) defense counsel did not open the door

to allow for its admission and (2) its probative value was substantially outweighed by the

danger of unfair prejudice. Specifically, appellant complains of testimony elicited from

Mrs. Sadler regarding appellant’s parole in December of 2014 and her knowledge of

appellant’s prior convictions.

A.     Standard of Review and Applicable Law

       We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge

abuses his discretion when his decision falls outside the zone of reasonable

disagreement. Id. If the trial court’s evidentiary ruling is correct under any applicable




                                              11
theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient

reason for the ruling. Id.

       “In a criminal case, a defendant may offer evidence of the defendant’s pertinent

trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.” TEX.

R. EVID. 404(a)(2). “A witness who testifies to the defendant’s good character may be

cross-examined to test the witness’s awareness of relevant specific instances of conduct.”

Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002) (internal quotations omitted)

(citing TEX. R. EVID. 405(a)); see Harrison v. State, 241 S.W.3d 23, 27–28 (Tex. Crim.

App. 2007). The purpose of the cross-examination is to demonstrate that (1) the

character witness is not really familiar with the defendant’s character because he or she

was unaware of prior incidents or (2) the character witness, who is familiar with this

incident and nonetheless asserts that the defendant has a good character for this trait,

has a very low threshold for “good” character. Wheeler v. State, 67 S.W.3d 879, 886 n.16

(Tex. Crim. App. 2002) (en banc); see Wilson, 71 S.W.3d at 350. However, the incidents

inquired about must be relevant to the character traits at issue. Wilson, 71 S.W.3d at

351; Murphy v. State, 4 S.W.3d 926, 931 (Tex. App.—Waco 1999, pet. ref’d).

       Even when such rebuttal testimony is admissible, however, a court may still

exclude it “if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence.” TEX. R. EVID. 403.

B.     Analysis

       Here, defense counsel asked Mrs. Sadler whether she had any qualms about

having her children around appellant. Mrs. Sadler answered no. This communicated



                                            12
that, in her opinion, appellant possessed character good enough to live in the same house

as her children. See Harrison, 241 S.W.3d at 25, 27–28; Pantoja v. State, 496 S.W.3d

186, 191–92 (Tex. App.—Fort Worth 2016, pet. ref’d); Burke v. State, 371 S.W.3d 252,

261 (Tex. App.—Houston [1st Dist.] 2011 pet. dism’d). Therefore, the door was opened

for cross-examination of Mrs. Sadler regarding her awareness of specific instances of

conduct by appellant. See TEX. R. EVID. 404(a)(2), 405(a); Harrison, 241 S.W.3d at 27–

28; Wilson, 71 S.W.3d at 350; Turner v. State, 4 S.W.3d 74, 78–79 (Tex. App.—Waco

1999, no pet.).

       Appellant complains of two pieces of Mrs. Sadler’s testimony elicited by the State:

(1) that she was aware he had been recently released on parole after multiple years of

incarceration; and (2) that she was unaware he had prior felony convictions for

possession of cocaine, possession of a controlled substance, and possession of a firearm

by a felon. Appellant argues that the testimony does not “logically rebut [Mrs. Sadler’s]

testimony that she was not concerned with her children being around appellant.” We

disagree. The incidents inquired about show that appellant’s character might pose a risk

of endangerment to Mrs. Sadler’s children. Cf. In re B.C.S., 479 S.W.3d 918, 926–27

(Tex. App.—El Paso 2015, no pet.) (“Imprisonment alone does not constitute an

endangering course of conduct, but it is a fact properly considered on the endangerment

issue.”); In re A.L.H., 468 S.W.3d 738, 746–47 (Tex. App.—Houston [14th Dist.] 2015, no

pet.) (noting that, for parental rights to be terminated, “a parent need not know for certain

that the child is in an endangering environment; awareness of such a potential is

sufficient”); In re S.T., 263 S.W.3d 394, 401–02 (Tex. App.—Waco 2008, pet. denied)

(noting that criminal acts by a parent were evidence of endangerment).            Here, the



                                             13
objected-to testimony demonstrated that: (1) Mrs. Sadler was not familiar with appellant’s

character because she was unaware of three of his prior felony convictions; and (2) Mrs.

Sadler, who was familiar with appellant’s recent incarceration for multiple years, has a

low threshold for “good” character. See Wilson, 71 S.W.3d at 350; Wheeler, 67 S.W.3d

at 886 n.16. Accordingly, we conclude the trial court did not abuse its discretion when it

admitted the objected-to testimony.

      Nevertheless, appellant argues that, even if the testimony is admissible under Rule

404, the testimony’s probative value was substantially outweighed by the danger of unfair

prejudice. See TEX. R. EVID. 403; Tucker v. State, 456 S.W.3d 194, 206 (Tex. App.—San

Antonio 2014, pet. ref’d). Again, we disagree.

      When the trial court exercises its discretion not to exclude evidence by finding that

the probative value of the evidence is not outweighed by the danger of unfair prejudice,

we give deference to that decision. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003); Navarro v. State, 535 S.W.3d 162, 168 (Tex. App.—Waco 2017, pet. ref’d);

Tucker, 456 S.W.3d at 206. Therefore, in determining whether the probative value of the

evidence is substantially outweighed by the danger of unfair prejudice, we do not conduct

a de novo review, and we “should reverse the judgment of the trial court rarely and only

after clear abuse of discretion.” Tucker, 456 S.W.3d at 206 (quoting Moses, 105 S.W.3d

at 627). In our review, we 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 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



                                           14
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 (Tex. Crim. App. 2006).

       In this case, the trial court could have reasonably concluded that the objected-to

testimony by Mrs. Sadler was probative because it showed Mrs. Sadler formulated her

opinion while aware that appellant had recently been released on parole after being

incarcerated for several years and without the knowledge that he had been previously

convicted of three felonies. This factor weighs in favor of admission. See id. at 641;

Navarro, 535 S.W.3d at 167–68; Turner, 4 S.W.3d at 78–79.

       We agree that Mrs. Sadler’s testimony was prejudicial. But, under Rule 403, mere

prejudice will not render the evidence inadmissible; instead, the admission of the

evidence must be unfairly prejudicial. See TEX. R. EVID. 403. Unfair prejudice “refers to

a tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one.” Tucker, 456 S.W.3d at 207 (quoting Gigliobianco, 210 S.W.3d at 641);

Johnson v. State, 263 S.W.3d 405, 428 (Tex. App.—Waco 2008, pet. ref’d) (citing Casey

v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007)). For example, evidence might be

unfairly prejudicial if it invokes the jury’s hostility or sympathy for one side without regard

to the logical probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. That is

not the case here. Mrs. Sadler’s testimony was not so graphic or appalling that it would

impress the jury in some irrational, but indelible way or suggest a decision on an improper

basis. Cf. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (en banc)

(concluding that offense of abuse of a corpse could potentially affect the jury in an

emotional way); Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009 pet. ref’d)



                                              15
(noting that extraneous-offense evidence of previous sexual assault of a child can “have

a tendency to suggest a verdict on an improper basis because of the inherently

inflammatory and prejudicial nature of crimes of a sexual nature committed against

children”). This factor weighs in favor of admission. See Tucker, 456 S.W.3d at 207.

      “Confusion of the issues” refers to a tendency to confuse or distract the jury from

the main issues in the case. Gigliobianco, 210 S.W.3d at 641. For example, evidence

that consumes an inordinate amount of time to present or answer might tend to confuse

or distract the jury from the main issues. Tucker, 456 S.W.3d at 207 (citing Gigliobianco,

210 S.W.3d at 641). Here, Mrs. Sadler’s testimony was straightforward and did not take

an inordinate amount of time; therefore, this factor favors admission of the evidence. See

Gigliobianco, 210 S.W.3d at 641.

      “Misleading the jury” refers to a tendency of an item of evidence to be given undue

weight by the jury on other than emotional grounds. Id. at 641; Tucker, 456 S.W.3d at

207. For example, scientific evidence might mislead a jury that is not properly equipped

to judge the probative force of the evidence. Gigliobianco, 210 S.W.3d at 641.       Mrs.

Sadler’s testimony was not prone to this tendency because it concerned matters easily

comprehensible by lay people. See id.; Tucker, 456 S.W.3d at 207. Appellant also does

not discuss or elaborate how the complained-of testimony would have misled the jury or

how the jury was likely to give the testimony undue weight. This factor weighs in favor

of admission. See Gigliobianco, 210 S.W.3d at 641; Tucker, 456 S.W.3d at 207.

      Finally, “undue delay” and “needless presentation of cumulative evidence” concern

the efficiency of the trial proceeding rather than the threat of an inaccurate decision.

Gigliobianco, 210 S.W.3d at 641; Tucker, 456 S.W.3d at 207. Here, the testimony in



                                           16
question was very narrowly limited, constituted a very brief section of the record, and was

not repetitive. See Tucker, 456 S.W.3d at 208; Greer v. State, 436 S.W.3d 1, 9 (Tex.

App.—Waco 2014, no pet.). Therefore, this factor weighs in favor of admission.

       In sum, balancing the Rule 403 factors, we conclude the trial court did not abuse

its discretion when it overruled appellant’s objection. See TEX. R. EVID. 403; Hammer v.

State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009); Gigliobianco, 210 S.W.3d at 642–

43; Newton, 301 S.W.3d at 321–22.

       We overrule appellant’s second issue.

                                    IV.    HEARSAY

       By his third issue, appellant challenges the same testimony by Mrs. Sadler on the

basis that it was hearsay.

       Hearsay is an out of court statement offered to prove the truth of the matter

asserted in the statement, and it is inadmissible unless otherwise provided by statute or

the rules of evidence. See TEX. R. EVID. 801(d), 802; Willover v. State, 70 S.W.3d 841,

845 (Tex. Crim. App. 2002).

       In his brief, appellant claims that “Ms. Sadler’s testimony about [appellant’s] parole

status and his criminal record could only have been based on what she had been told,

presumably by her husband, Mr. Sadler, who had been [appellant’s] best friend for

seventeen years.” However, Ms. Sadler never stated at the trial court that she learned

these facts from Mr. Sadler, and appellant does not point us to any out-of-court assertion

in Mrs. Sadler’s testimony. On this record, Mrs. Sadler’s testimony did not contain an out-

of-court statement, and there is no basis for determining that her statements were

hearsay.



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       We overrule appellant’s third issue.

                                   V.    CONCLUSION

       We affirm the trial court’s judgment.


                                                      DORI CONTRERAS
                                                      Justice

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

Delivered and filed the 19th
day of December, 2018.




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