                                 NO. 07-10-0439-CR
                                 NO. 07-10-0440-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL C

                                   JUNE 29, 2012

                        ______________________________


                     DEMETRIS ANTWAN WHITE, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

           NOS. B18407-1005, B18408-1005; HONORABLE ED SELF, JUDGE
                       _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                     MEMORANDUM OPINION ON REHEARING


       This Court originally issued an opinion on May 3, 2012. Appellant, Demetris

Antwan White, filed a Motion for Rehearing requesting that we delete Footnote 3

pertaining to the procedural history of this case. Having reviewed Appellant's motion

and the State's response, we believe Appellant's motion to be meritorious. Accordingly,

we hereby withdraw our opinion of May 3, 2012, and substitute this opinion in lieu

thereof.
       Appellant, Demetris Antwan White, was convicted by a jury of assaulting a public

servant1 and evading arrest/detention.2 He was sentenced by the jury to four years

confinement, suspended in favor of five years community supervision, and fined

$250.00 in the assault offense and two hundred days confinement, not suspended, and

a fine of $250.00 in the evading arrest/detention offense.             In two issues, Appellant

asserts the trial court erred in (1) admitting extraneous offense evidence of a prior,

uncharged evading arrest offense; and (2) submitting an extraneous offense instruction

to the jury at the conclusion of the guilt/innocence phase that was an improper comment

on the weight of the evidence by the trial judge. We modify the judgment in Cause No.

B18407-1005 to delete the order that Appellant pay $2,340.00 in court-appointed

attorney's fees and affirm that judgment as modified, and we affirm the judgment in

Cause No. B18408-1005.


       BACKGROUND


       Officer Korey Ferguson of the Plainview Police Department attempted to stop a

motor vehicle for a traffic offense when that vehicle suddenly sped away. Eventually the

vehicle came to a stop, whereupon the driver exited and immediately began running.

During the foot chase that followed, the fleeing suspect grabbed a bicycle and flung it in

the officer's direction, striking him on and below the knee. At trial, Officer Ferguson

testified that it was at this point that he recognized that suspect as being Appellant. The

chase continued across a couple of fences and into an alley where, at some point, the

suspect being pursued struck Officer Ferguson in the chest with his forearm and
1
No. B18407-1005. See Tex. Penal Code Ann. § 22.01(b) (West 2011).
2
No. B18408-1005. See Tex. Penal Code Ann. § 38.04(b)(1) (West 2011).


                                               2
avoided detention. The suspect then entered a residence and locked the door. The

officer returned to the vehicle and identified it as being registered to Appellant's cousin,

Stephanie White.


        Both Appellant and the State concede that the primary issue raised by the

defense was the identity of the person who fled from the scene of the traffic stop and

assaulted Officer Ferguson. After Appellant raised the issue of identity through cross-

examination, Officer Ferguson testified on redirect that he had seen Appellant three or

four times prior to the incident, had verbal contact with him in all but one of those prior

contacts, and did not have verbal contact during that particular contact because

Appellant “evaded me.”       Appellant objected to the "relevance" of this statement,

contending it was evidence of "extraneous conduct."          Even though the trial court

overruled those objections, Appellant did not request an immediate limiting instruction.


       EXTRANEOUS OFFENSES


       In his first issue, Appellant claims the trial court erred in admitting Officer

Ferguson's statement that Appellant had previously "evaded me" because that evidence

was irrelevant, constituted an inadmissible extraneous offense, and was substantially

more prejudicial than probative. See Tex. R. Evid. 401, 403 & 404(b).


       Because trial courts are in the best position to decide substantive admissibility

questions, we review a trial court’s ruling under an abuse of discretion standard.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g); Powell

v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). To obtain a reversal of a conviction

based on error in the admission of evidence, an appellant must establish that the trial

                                             3
court’s ruling was outside the zone of reasonable disagreement and the error affected

his substantial rights. Tex. R. App. P. 44.2(b); Montgomery, 810 S.W.2d at 391. As

with other trial errors, to preserve an evidentiary complaint on appeal, the appellant

must raise a specific complaint at trial, Tex. R. App. P. 33.1(a)(1)(A), and the appellant's

point of error on appeal must comport with his objection at trial. See Guevara v. State,

97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (holding that appellant failed to preserve any

error regarding admission of evidence because his objection at trial did not comport with

complaint raised on appeal).


       As to Appellant's Rule 401 argument, while relevant evidence is generally

admissible, evidence which is not relevant is inadmissible. Tex. R. Evid. 402. Relevant

evidence means evidence having 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 that evidence. Tex. R. Evid. 401.


       Here, Appellant's counsel thoroughly attacked Officer Ferguson’s credibility by

questioning his ability to identify Appellant while he was caught up in a chase through

poorly lit areas at night. Appellant also offered the testimony of Twila Hines, Appellant’s

friend, who testified that another person was driving the vehicle that Officer Ferguson

attempted to stop; Neva Yarbrough, Appellant’s girlfriend, who testified Appellant was in

another town playing cards at the time of the incident; and Stephanie White, who

testified she had no idea what Appellant was doing at the time of the incident, but that

he never drove her vehicle. Accordingly, the determination of the identity of the person

fleeing from Officer Ferguson was a fact of significant consequence to the determination

of the action. An extraneous offense may be admissible, to show the identity of the

                                             4
accused. Tex. R. Evid. 403(b). Therefore, evidence pertaining to identity was relevant

and the trial court's decision to deny Appellant's objection on the basis of Rule 401 lies

within the zone of reasonable disagreement. See Page v. State, 213 S.W.3d 332, 336

(Tex.Crim.App. 2006) (holding that evidence of an extraneous offense is relevant and

may be admissible when the issue of identity has been raised by defense counsel’s

cross-examination).


       As to Appellant's Rule 403 argument, Appellant did not make this argument at

trial. Because his complaint on appeal does not conform to his complaint at trial, those

arguments are waived. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002);

Veleta-Hernandez v. State, No. 07-10-0460-CR, 2012 Tex. App. LEXIS 3099, at *19

(Tex.App.--Amarillo April 19, 2012, no pet. h.).


       As to Appellant's Rule 404(b) argument, Appellant contends the complained of

evidence was inadmissible because the State failed to provide notice of its intent to use

that evidence after he had made a timely request for such notice. See Hernandez v.

State, 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (holding that Rule 404(b) literally

conditions the admissibility of other-crimes evidence on the State's compliance with the

notice provision contained therein). Rule 404(b) states, in relevant part:


       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of . . .
       identity, . . . provided that upon timely request by the accused in a criminal
       case, reasonable notice is given in advance of trial of intent to introduce in
       the State's case-in-chief such evidence other than that arising in the same
       transaction.

(Emphasis added).


                                             5
       Because the complained of evidence was not introduced during the State's case-

in-chief, but was instead offered in rebuttal to the defense raised by cross-examination

of the State's witness, Appellant was not entitled to notice pursuant to Rule 404(b).

Jaubert v. State, 74 S.W.3d 1, 4 (Tex.Crim.App. 2002).


       In addition, after reviewing the record, we have a fair assurance that even if the

admission of the complained of evidence was error, it did not influence the jury or had

but a slight effect and we conclude that it did not have a substantial or injurious effect on

the jury’s verdict and did not affect Appellant’s substantial rights. See King v. State, 953

S.W.2d 266, 271 (Tex.Crim.App. 1997). Accordingly, we further hold that any error in

admitting the complained of evidence would have been harmless. Tex. R. App. P.

44.2(b). Appellant’s first issue is overruled.


       JURY CHARGE


       In issue two, Appellant asserts the trial court’s limiting instruction3 on extraneous

offenses was an improper comment on the weight of the evidence. Appellate review of

purported error in a jury charge involves a two-step process. Middleton v. State, 125

S.W.3d 450, 453 (Tex.Crim.App. 2003). First, we determine whether the jury instruction

was erroneous. Id. Second, if error occurred, then an appellate court must analyze that

error for harm. Id. The issue of error preservation is not relevant until harm is assessed
3
In paragraph ten of the Charge, the trial court stated:

       If there is any evidence before you in this case regarding the defendant’s having
       committed offenses other than the offense alleged against him in the indictment in this
       case, you cannot consider said testimony for any purpose unless you find and believe
       beyond a reasonable doubt that the defendant committed such other offenses, if any
       were committed, and even then you may only consider the same in determining the
       identity of the defendant, if any, in connection with the offense, if any, alleged against him
       in the indictment in this case, and for no other purpose.


                                                     6
because the degree of harm required for reversal depends on whether the error was

preserved. Id.


       If, as here, Appellant offered no objections to the charge, charge error does not

require reversal unless he can show “egregious harm.” Almanza v. State, 686 S.W.2d

157, 174 (Tex.Crim.App. 1985) (op. on reh’g), reaffirmed, Middleton v. State, 125

S.W.3d 450, 453 (Tex.Crim.App. 2003). Errors that result in egregious harm are those

that affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly more

persuasive. Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App. 2011). Appellant

contends he was egregiously harmed by the improper instruction because identity was

the sole defense advanced by him at trial and the instruction directed the jury's attention

to the complained of testimony.


       First, we note that we have already found that the complained of testimony was

both relevant and admissible. Secondly, “[b]ecause the court used the phrases ‘if any

were committed’ and ‘if any’ in the limiting instruction, the instruction does not constitute

a comment on the weight of the evidence.” Easter v. State, 867 S.W.2d 929, 941

(Tex.App.—Waco 1993, pet. ref’d). Finding no error by the trial judge in charging the

jury with the limiting instruction given in this case, Appellant’s second issue is overruled.


       ATTORNEY'S FEES

       We also note an issue not raised by Appellant regarding the assessment of

attorney's fees.4 The written judgment in Cause No. B18407-1005 orders the defendant


4
When a defendant appeals his conviction, courts of appeals have jurisdiction to address any error in that

                                                   7
to pay court-appointed attorney's fees totaling $2,340.00. In order to assess attorney's

fees in a judgment, a trial court must determine the defendant has financial resources

that enable him to offset in part or in whole the costs of legal services provided. Tex.

Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). Furthermore, the record must

reflect some factual basis to support that determination. Barrera v. State, 291 S.W.3d

515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887

(Tex.App.--Amarillo 2009, no pet.).             The record in this case does not contain any

evidence to support such a determination. Therefore, we conclude that the order to pay

attorney's fees was improper.               See Mayer v. State, 309 S.W.3d 552, 555-56

(Tex.Crim.App. 2010). When the evidence does not support an order to pay attorney's

fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we modify the

judgment in Cause No. B18407-1005 to delete the order that Appellant pay $2,340.00 in

court-appointed attorney's fees.

                                              Conclusion


        The judgment in Cause No. B18407-1005 is modified to delete the order that

Appellant pay $2,340.00 in court-appointed attorney's fees and we affirm that judgment

as modified. The judgment in Cause No. B18408-1005 is affirmed.




                                                          Patrick A. Pirtle
                                                              Justice

Do not publish.


case. Pfeiffer v. State, No. PD-1234-11, ___ S.W.3d ___, 2012 Tex. Crim. App. 568, at *10
(Tex.Crim.App. April 18, 2012). Where, as here, the error appears on the face of the judgment and does
not involve the merits of the criminal trial, but instead addresses the clerical correctness of the judgment,
we find that the interest of justice dictates that we address the issue.

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