









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00180-CR

______________________________



BYRON KEITH DUNCAN, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 180th Judicial District Court

Harris County, Texas

Trial Court No. 862006








Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Grant


______________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

O P I N I O N


	Byron Keith Duncan appeals from the judgment of the district court entered on Duncan's plea
of guilty without an agreed recommendation, on a charge of fraudulent use and possession of
identifying information, Tex. Pen. Code Ann. § 32.51 (Vernon Supp. 2002).  Duncan was sentenced
to two years' confinement in a state jail facility to run concurrently with two other cases also on
appeal to this court (cause numbers 06-01-00181-CR and 06-01-00182-CR). 
	On appeal, Duncan contends that his counsel at trial rendered ineffective assistance at the
punishment stage of the trial, in two particulars:  1) by failing to object to evidence suggesting
Duncan had committed an extraneous offense; and 2) by failing to object to the victims'
recommendations of punishment, which were included in the presentence investigation (PSI) report. 
Procedural History
	On March 2, 2001, Duncan executed written waivers of his rights, acknowledged the
admonishments by the trial court, and entered his plea of guilty to the offense charged in this case.
	At the sentencing hearing, the State offered the PSI report into evidence and rested.  Duncan
testified.
Ineffective Assistance of Counsel
	When confronted with a claim of ineffective assistance of counsel, we are to apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington. (1)  Under
the first prong of the Strickland test, an appellant must show that counsel's performance was
deficient.  This requires a showing that he or she made errors so serious that counsel was not
functioning as the counsel guaranteed to a defendant in a criminal prosecution by the Sixth
Amendment to the United States Constitution.  In order to be successful in this regard, an appellant
must show that counsel's performance fell below an objective standard of reasonableness.  Under the
second prong, an appellant must show that this deficient performance prejudiced the defense.  The
appropriate standard for judging "prejudice" requires an appellant to show there was a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different.  A "reasonable probability" is a probability sufficient to undermine confidence in the
outcome.  Both prongs must be proven by a preponderance of the evidence.  Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 149 L.Ed 2d 1027, 121 S.Ct.
2196 (2001); Blount v. State, 64 S.W.3d 451, 453-54 (Tex. App.-Texarkana 2001, no pet.).  This
standard is applied at both the trial and punishment phases.  Hernandez v. State, 988 S.W.2d 770,
772 (Tex. Crim. App. 1999). 
Counsel's Failure to Object to Victims' Recommendations of Punishment
	Duncan contends his trial counsel was ineffective for failing to properly object to portions
of the PSI report offered in evidence containing statements by the victims or persons related to the
victims, giving their recommendations regarding whether Duncan should be placed on community
supervision.
	One of the sections of the PSI report is labeled "VICTIM IMPACT STATEMENT." 
Relevant parts of the Victim Impact Statement are as follows:
 Brenorris McBeth is the complainant of the stolen check that Mr. Duncan tried to
use to purchase tires and wheels at the Discount Tire Store.  Mr. McBeth advised this
investigator that he saw this person one time.  Mr. Duncan tried to sell him the stolen
Yamaha motorcycle.  Mr. McBeth refused to purchase the motorcycle until
Mr. Duncan provided him with a blue title.  He reported he did not give Mr. Duncan
permission to use any of his property.  Mr. McBeth also reported  the check used was
stolen from his vehicle.  This complainant reported he was not injured and he did not
lose anything of value thanks to the careful service of the clerk and manager at the
tire store.  Mr. McBeth originally stated he could care less what happens to the
defendant.  He then changed his mind and now wishes the Court to know he is
opposed to this person being granted probation. 
 
 Sandra Cerquera  is the victim of the stolen purse containing all of her identifying
information, checkbook, and several credit cards.  Some of these items were found
in Mr. Duncan's vehicle at the time of arrest.  Mrs. Cerquera met Mr. Duncan when
she ran and approved credit for the defendant to walk out of the Ex-Imports
Motorcycle dealership; . . . .  Mr. Duncan was using identifying information for
Darris Johnson at the time.  Mrs. Cerquera reported to the police that her purse was
stolen the same day Mr. Duncan was in her office.  Mrs. Cerquera's checkbook and
driver's license were missing from the items recovered and have not been returned. 
Mrs. Cerquera reported to this officer that some of her checks were cashed at
Randall's and Kroger's Food Markets.  She also reported the defendant went on a
clothing shopping spree with her MasterCard.  This victim advised she has spent
$175.00 out of pocket along with countless hours not working, being on the
telephone, and writing to different companies in order to clear up her credit and to
keep companies from filing charges against her for purchases she did not make.  This
has caused her a lot of stress and still wonders what the defendant is going to do with
her checkbook and Driver's License.  Mrs. Cerquera believes this defendant will
continue to commit fraud if given probation.  She does not feel comfortable for
Mr. Duncan to be granted probation.  This victim reported she remembers the
defendant very well and stated that defendant seemed to be a convincingly smart and
intelligent young man whom [sic] seems to be wasting his life.	
 
		. . . .
 Kim Huynh is the salesperson that sold Mr. Duncan a men's bracelet and women's
earrings for a total of $2466.26.  Mr. Duncan walked into Zales Jewelry store and
obtained credit to buy the items under the name of Darris Johnson.  The men's
bracelet recovered from Mr. Duncan's vehicle was in a Zales box.  Ms. Huynh
request [sic] the Court allow a representative of her company to inspect the recovered
men's bracelet in the Zales box to see if this is the item taken from Zales.  The
jewelry is listed as located at the HPD property room under case #136342100H. 
Ms. Huynh wants the Court to know that she does not feel comfortable with the
defendant being granted probation. 
 
		. . . .
 
 Darris Johnson is the victim whose name was used to obtain credit at several places
including the Ex-Imports Motorcycle Dealership.  Mr. Johnson is a student at College
Station.  He reported he has been too stressed out over what Mr. Duncan did to him. 
Mr. Johnson reported his studies have suffered and his grades have dropped due to
the pressure of having to clear his name by taking time from school to deal with
creditors looking to get paid for Mr. Duncan's fraud.  Mr. Johnson reported he has
spent about $75.00 in Notary fees along with time needed and is still spending time
to rectify the situation.  Mr. Johnson wants the Court to know he is severely opposed
to Mr. Duncan receiving probation. 
 
(Emphasis added.)
	Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (Vernon Supp. 2002) (2) permits a victim, close
relative of a deceased victim, or guardian of a victim to appear in person and present to the court and
to the defendant a statement of the person's views about the offense, the defendant, and the effect of
the offense on the victim.  The article provides, however, that this statement may not be made until
after the assessment of punishment, after the court has determined whether to grant community
supervision, after announcement of the terms and conditions of the sentence, and after sentence is
pronounced.  Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b)(1), (2), and (3).  Duncan further argues
that these specific limitations on victims' statements prevail over the general language of Tex. Code
Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2002), which authorizes the preparation of a PSI
report for the trial court "on the circumstances of the offense with which the defendant is charged,
the amount of restitution necessary to adequately compensate a victim of the offense, the criminal
and social history of the defendant, and any other information relating to the defendant or the offense
requested by the judge."  (Emphasis added.)  Duncan further cites Sattiewhite v. State, 786 S.W.2d
271 (Tex. Crim. App. 1989).  In that appeal, the appellant challenged the ruling of the trial court's
refusing to permit a mental health expert to testify as to what punishment, death or mandatory life
imprisonment, would be most appropriate for the appellant.  The Texas Court of Criminal Appeals
affirmed the trial court's ruling, holding "[t]he argument that a witness may recommend a particular
punishment to the trier of fact has been soundly rejected" concluded that such testimony would
escalate into a "battle of the experts."  Id. at 290.  The court in Sattiewhite cited Schulz v. State, 446
S.W.2d 872 (Tex. Crim. App. 1969), which affirmed the trial court's refusal to permit a psychiatrist
to give opinion testimony that it would be better for the appellant to be placed on probation than to
serve time in prison.  The court held that permitting such testimony would invade the province of
the jury.  Id. at 874.  
	This issue was considered by the Fort Worth Court of Appeals in Fryer v. State, 993 S.W.2d
385 (Tex. App.-Fort Worth 1999).  The court held that in Article 42.03, the discussion of the
"testimony" of a victim does not include the information contained in the PSI report.  Further, the
Fort Worth court cited Article 42.12, § 9(a), which contains broad language permitting the PSI report
to contain "any other information relating to the defendant or the offense."  Fryer, 993 S.W.2d at
388.  
	At the time of Duncan' briefing, the Texas Court of Criminal Appeals had granted petition
for discretionary review in Fryer. The court has now ruled on the petition, affirming the decision
of the Fort Worth court.  Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002).  The Texas Court
of Criminal Appeals's opinion in Fryer mentions the above-noted broad language of Article 42.12,
§ 9(a) with reference to information contained in the PSI report.  Id. at 630-31.  It distinguishes
Sattiewhite as being limited to expert testimony regarding punishment and further holds that the case
was limited to testimony and the information contained in the PSI report regarding the victim's
recommendation on whether to grant community supervision did not constitute testimony.  Id. at
631-32.  
	As the Texas Court of Criminal Appeals in Fryer has ruled that a PSI report may properly
contain the victim's recommendation as to whether to grant community supervision, we follow the
court's determination.  This issue is overruled.
Failure of Counsel to Object to Errors Referenced in
Duncan's Involvement in a "Pyramid Scheme"

 Duncan also contends trial counsel was ineffective at the punishment stage because he failed
to properly object to the "prosecutor's unfair manipulation of the Appellant's testimony [that] implied
an extraneous offense that had not been shown beyond a reasonable doubt to have been committed
by the Appellant."  He argues that the prosecutor's questions attempted to show he was involved in
some kind of illegal pyramid scheme and, because this offense was not shown beyond a reasonable
doubt, it could not therefore be considered by the trial court at the punishment stage.  Duncan argues
the trial court must have considered this because he was assessed the maximum punishment of two
years' confinement in a state jail facility.
	At the punishment stage, Duncan testified on direct examination he worked for Prepaid Legal
Services.  On cross-examination, the first question the prosecutor asked him concerned the nature
of Prepaid Legal Services.  Duncan answered it was "like a triangular type thing," and the prosecutor
continued as follows:
		Q.	Like a pyramid scheme?
 
		A.  	Correct.  It's -- like they sell like legal insurance for like lawyers or
something like that.
 
		Q.	Okay.  What do you mean?  You sell something?
 
		A.	Well, I -- if I was to go out into the community and speak to someone
about prepaid legal services, I would tell them about the company and I would bring
them into a meeting.  All our meetings are held on Tuesdays.  And I would bring
them into the meeting and --
 
		Q.	 Is this what you do, or you would do?
 
		A.  	That's what I do.
 
		Q.  	Okay.  What do you sell them?  Tell the Judge what you are selling
these people. 
		A.  	Selling them -- it's insurance to have like a legal shield type insurance. 
If they were to get into any trouble and they don't have a lawyer --
 
			THE COURT:  Did you sell yourself any?
 
			THE DEFENDANT:  No, sir.  No, sir, I didn't receive any.
 
		Q.  	[by the prosecutor]  And why is that?
 
		A.  	Because of -- the simple fact that it was something that I could just do
-- it was flexible and it would bring in an income.
 
		Q.  	What's a pyramid scheme?
 
		A.  	Well, I don't really -- I don't know if it's called a pyramid scheme or
if it's called a pyramid.
			A pyramid scheme sounds to me is something that's getting over on
someone.  And that's not what the company does. 
 
The prosecutor continued, several pages later:
		Q. 	All right.  Thank you.  Prepaid Legal Services, you're telling us it's a
pyramid scheme.  Is it a legal pyramid scheme?
 
		A.  	Ma'am.
 
		Q.  	What are you actually selling?
 
		A.  	It's legal insurance.
 
		Q.  	Who are the lawyers?
 
		A.  	They have their own group of lawyers.
 
		. . . .
 
		Q.  	So, when you're talking about a pyramid scheme, doesn't that mean
that the people who are in it at the beginning make a whole lot of money and the
people at the end don't make any money, . . . ?
 
		A.  	No, that's not correct.
 
		Q.  	Well, that's what this is -- how is this one different?
 
		A.  	Because when the people come in they have the opportunity to join
into the Prepaid Legal Services.  They don't just have to buy or -- to have themselves
a lawyer; they can also join into where they're selling insurance also and make the
same amount of money that everyone else is making.
 
	The prosecutor continued in her summation:
	And this is a fraud case, and which he's admitted to being a member of a pyramid
scheme.
 
		. . . .
 
	And the fact that he's working and continues to work at a place that he himself
describes as some type of pyramid setup, where people who get in at the beginning
get paid a lot and if you don't get in until the end you don't get paid as much.
 
	Besides mischaracterizing Duncan's testimony, it is clear the prosecutor made no serious
attempt to get at the true nature of the operation by which Duncan was employed, Prepaid Legal
Services, to attempt to show, by facts and not "sound bites," that it was an illegal operation.  See
Tex. Bus. & Com. Code Ann. § 17.461 (Vernon 2002).  Her obvious purpose was to attach the label
"pyramid scheme" to Duncan. 
	The prosecutor has demonstrated through her questioning neither that the Prepaid Legal
Services (3) program was an illegal pyramid scheme nor that Duncan admitted being a member of an
illegal pyramid scheme.  In fact, he specifically disputed the prosecutor's characterization of his
employer as an illegal operation.  Duncan's counsel did make some attempt to point out that the
prosecutor had mischaracterized Duncan's testimony, but counsel did not object to the prosecutor's
manipulation of testimony until the testimony was repeated several times.  However, no explanation
of trial counsel's reasoning or possible strategy appears in the record of this case.  Any claim of
ineffective assistance is required to be "firmly founded" in the record.  Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999).  
	As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct
evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic
motivation, if any can be imagined.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 
We will not conclude that the challenged conduct constitutes deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.  Id.; see Thompson,
9 S.W.3d at 814.  In Osorio v. State, 994 S.W.2d 249 (Tex. App.-Houston [14th Dist.] 1999, pet.
ref'd), the Fourteenth Court of Appeals held that, notwithstanding the prosecutor's blatant injection
of erroneous and derogatory remarks about "Columbian cocaine" into the proceedings, called by the
concurring opinion "needless prosecutorial misconduct," Id. at 253-54, the appellant's claim that his
counsel was ineffective for failure to object could not be sustained because there was no evidence
in the record as to trial counsel's reasoning for failure to object.  The court held that with nothing in
the record, the appellant had failed to overcome the recognized presumption that counsel's actions
(or, in this case, inactions) were based on sound trial strategy.  Id. at 253.
	Direct appeals often present a limited record for review of the typical issues raised in an
ineffective assistance point.  Thompson, 9 S.W.3d at 812.  One way to present evidence of counsel's
trial strategy or other matters in the direct appeal record is through a motion for new trial.  See
Motley v. State, 773 S.W.2d 283, 290 (Tex. Crim. App. 1989) (evidence relating to counsel's trial
strategy appeared in the record because a motion for new trial was held on the issue of counsel's
ineffective assistance).  Another way to develop a proper record is through a hearing in a habeas
corpus collateral attack.  See generally Tex. Code Crim. Proc. Ann. art. 11.01, et seq. (Vernon
1977 & Supp. 2002). 
	The Texas Court of Criminal Appeals has recognized that a reviewing court will only rarely
be provided with a record capable of providing a fair evaluation of the merits of a claim of
ineffective assistance.  Thompson, 9 S.W.3d at 813; Jackson v. State, 973 S.W.2d 954, 957 (Tex.
Crim. App. 1998).  To defeat the presumption of reasonable professional assistance, "[a]ny allegation
of ineffectiveness must be firmly founded in the record and the record must affirmatively
demonstrate the alleged ineffectiveness."  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.
App. 1996). 
	When direct appeal does not provide an adequate record to evaluate a claim which might be
substantiated through additional evidence gathered in a habeas corpus proceeding, a claim of
ineffective assistance of counsel will properly be raised through habeas corpus, even if it had been
previously rejected on direct appeal.  Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980),
quoted by Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); see also Jackson, 973
S.W.2d at 957; Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).
	The record in the present case is silent as to trial counsel's strategy.  The State contends there
is a conceivable trial strategy, i.e., counsel intended to allow Duncan to explain his answers
regarding the "pyramid scheme."  We also observe that because the matter was tried to the court and
not a jury, counsel may have assumed the trial court was aware of the statute authorizing prepaid
legal services (Article 5.13-1 of the Texas Insurance Code) and recognized that the elements of the
"pyramid scheme," contained in Section 17.461 of the Texas Business and Commerce Code is
defined as having certain prerequisites that were not shown in evidence to exist in the program in
which Duncan had participated.  We are required, therefore, to hold that Duncan has not met his
burden to overcome the presumption of professional assistance and sound trial strategy.  This point
of error is overruled. 

	The judgment of the trial court is affirmed.



						Ben Z. Grant
						Justice

Date Submitted:	May 30, 2002
Date Decided:		August 8, 2002

Publish
1. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
2. All references hereafter are to the Texas Code of Criminal Procedure, unless otherwise
specified. 
3. Prepaid Legal Services contracts were authorized by Article 5.13-1 of the Texas Insurance
Code, which was initially passed in 1975.

element-frame-width:108.7pt;mso-element-frame-height:106.55pt;
  mso-element-frame-hspace:12.0pt;mso-element-frame-vspace:12.0pt;mso-element-wrap:
  auto;mso-element-anchor-vertical:paragraph;mso-element-anchor-horizontal:
  page;mso-element-left:246.05pt;mso-element-top:-1.45pt'>
 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00137-CR
                                                ______________________________
 
 
                               ANTHONY F. TOMASHESKI,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                         On Appeal from the 5th Judicial District Court
                                                             Bowie County, Texas
                                                       Trial Court
No. 07F0235-005
 
                                                      
                                            
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                        Memorandum Opinion by Chief Justice Morriss



                                                      MEMORANDUM OPINION
 
            Anthony
F. Tomasheski paid Andrew Stokes a visit, but this was not a cordial house
call.  Angered by an outstanding debt,
Tomasheski greeted Stokes by punching him in the face.  Stokes reached for his black baseball bat to
protect himself.  The unsuccessful
maneuver allegedly led to Tomasheskis possession of the bat and resulting
blows to Stokes shoulder and head. 
Tomasheski left after Stokes produced a hundred dollar bill.  Neighbor Richard Knight heard the noise from
the fight and left his house, finding Stokes pretty beat up.  He was bleeding from his scalp and in his
face, wasnt completely conscious, and was grabbing on his shoulder
. . . like he was hurting. 
Stokes required a craniotomy and fell into a coma for two days as a
result of his injuries. 
            Tomasheski
was charged with two counts of aggravated assault.  Count one alleged he intentionally,
knowingly, or recklessly cause[d] serious bodily injury to Andrew Stokes by
striking [him] with a baseball bat and with his fists.  Count two alleged he intentionally or
knowingly caused bodily injury to Stokes in the manner described in count one,
and also used or exhibited a baseball bat as a deadly weapon during the alleged
assault.  The jury found Tomasheski
guilty of only count one of the States indictment.  It assessed a $5,000.00 fine and five years
confinement and recommended the trial court suspend Tomasheskis sentence and
place him on community supervision.  
            We
affirm the trial courts judgment, because (1) the amended judgments resolve Tomasheskis
judgment complaints and (2) the exclusion of extraneous-offense evidence was harmless.
(1)        The Amended Judgments Resolve Tomasheskis
Judgment Complaints
 
            Initially,
the trial court issued two judgments, both reflecting guilt for aggravated
assault with a finding that Tomasheski exhibited a deadly weapon during the
commission of the crime.  Each judgment
suspended a five-year sentence and placed Tomasheski on community supervision
for a period of ten years.  Because the
jury found Tomasheski guilty of only count one of the States indictment, the
first point of error on appeal complained that the trial court erroneously
entered a judgment of conviction on count two. 
Realizing this mistake, the trial court issued amended judgments of
conviction.  The first amended judgment
finds Tomasheski guilty of aggravated assault, removes the deadly weapon
finding, imposes the jury-assessed $5,000.00 fine, and suspends the sentence
with imposition of community supervision for a period of ten years.  The second judgment reflects that the jury
found Tomasheski not guilty.  We find
that the trial courts amended judgments resolve the complaint raised in
Tomasheskis first point of error.  It is
overruled.  
            Next,
Tomasheski argues that the trial court erred in making him pay the jurys
assessed fine of $5,000.00 as a condition of community supervision.  Because the trial courts amended condition
of community supervision removes the requirement that Tomasheski pay the
$5,000.00 as restitution, we overrule this point of error as well.  
(2)        The Exclusion of Extraneous-Offense
Evidence Was Harmless
 
            Tomasheski
asserted the issue of self-defense. 
Outside of the presence of the jury, he told the trial court he punched
Stokes once because Stokes was rushing him, trying to hit him first.  When Stokes retrieved the baseball bat and tried
to whack his opponent, Tomasheski grabbed him and the bat.  Tomasheski wanted to introduce testimony of
extraneous offenses describing Stokes violent character to establish a
reasonable belief that his use of force against Stokes was immediately
necessary to protect [himself] against [Stokes] use or attempted use of
unlawful force.  See Tex. Penal Code Ann.
§ 9.31 (Vernon Supp. 2009).  He wanted to
demonstrate that his perception he was in danger was justified.  Specifically, Stokes ex-wife and Skip
Dewberry were prepared to testify that Stokes had previously assaulted them, as
well as others, with his baseball bat. 
The State objected that the evidence was irrelevant, and alternatively,
violated Rules 403 and 404 of the Texas Rules of Evidence.  The trial court excluded this evidence under
Rule 403, a decision Tomasheski complains was erroneous.  
            In
excluding evidence of the extraneous offenses, the trial court stated, Its
evidence thats offered essentially to show that the victims a bad
person.  Its the old-son-of-a-gun had it
coming defense.  The court pointed to
the fact that only Tomasheski and Stokes were present during the assault and
ruled that this is essentially a swearing match between the defendant and the
victim, the offer of extraneous evidence creates a danger of unfair prejudice.  Tomasheski argues that the trial courts
reasoning in excluding the proffered evidence denied him his constitutional
right to present a meaningful defense and suggests that the trial court acted
as the fact-finder on the question of self-defense.   
            One unusual
twist that colors our entire analysis of this issue is that, while Tomasheski
admitted to the initial punch, he denied hitting Stokes with the bat.  Thus, it appears that his self-defense claim
can apply only to the initial punch, not to any assault with the bat.  Therefore, we examine this issue in light of
the question of whether the evidence of the extraneous offenses would help
establish his reasonable belief that punching Stokes was immediately necessary
to protect [him] against [Stokes] use or attempted use of unlawful force.  Because, here, the self-defense claim
legitimately addressed only the initial punch, not the assault with Stokes
bat, the essential force of the proffered testimony about Stokes prior use of
his bat was a general tendency toward violence, rather than a particular danger
from Stokes bat.
            A trial
courts decision to admit or exclude evidence is reviewed only for an abuse of
discretion.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002).  We do not
disturb a trial courts ruling if the decision to admit evidence is within the zone
of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990) (op. on rehg). 
We may not substitute our own decision for that of the trial court.  Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).  If the trial courts decision on the
admission of evidence is supported by the record, the trial court will not be
reversed.  Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.  
            Although the
trial court ruled that the extraneous offenses were admissible under Rule 404,
it excluded the evidence after conducting a Rule 403 balancing test.  Evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence. 
Tex. R. Evid. 403.  The following relevant criteria are used in
determining whether the prejudice of Stokes extraneous offenses substantially
outweighed its probative value:
(1)        how compellingly the extraneous offense
evidence serves to make a fact of consequence more or less probablea factor
which is related to the strength of the evidence presented by the proponent . .
.;
 
(2)        the potential the other offense evidence
has to impress the jury in some irrational but nevertheless indelible way;
 
(3)        the time the proponent will need to
develop the evidence, during which the jury will be distracted from consideration
of the indicted offense;
 
(4)        the force of the proponents need for
this evidence to prove a fact of consequence, i.e., does the proponent have
other probative evidence available to him to help establish this fact, and is
this fact related to an issue in dispute.
 
Mozon v. State, 991
S.W.2d 841, 847 (Tex. Crim. App. 1999) (citing Montgomery, 810 S.W.2d at 38890).  We must give appropriate deference to the
trial courts determination that the probative value of the evidence in
question was substantially outweighed by the danger of unfair prejudice.  Dudzik
v. State, 276 S.W.3d 554, 561 (Tex. App.Waco 2008, pet. refd) (citing Moses, 105 S.W.3d at 627).
 
            A.        The
Extraneous-Offense Evidence Was Relevant
 
            Would Stokes
extraneous offenses, in which he used a baseball bat to assault others, aid in
establishing the reasonableness of a belief by Tomasheski that the initial
punch was immediately necessary to protect [him] against [Stokes] use or
attempted use of unlawful force? 
Because Tomasheski was aware of Mr. Stokes history, we find the
extraneous offenses make Tomasheskis self-defense claim, as to the punch, more
probable.[1]  This factor weighs in favor of admission.
            B.        The
Evidence Would Not Impress the Jury in Some Irrational Way
 
            One question
is the potential of Stokes extraneous-offense evidence to impress the jury in
some irrational but nevertheless indelible way.  The State points to the trial courts
suggestion that the evidence would essentially show that the victim is a bad
person deserving of his injuries and argues this was proof that the jury would
be impressed in some irrational, but nevertheless indelible way.  We consider Rule 404 in analyzing this
Rule-403 factor, due to the trial courts employed reasoning.  The Texas Court of Criminal Appeals recently
explained:
The
defendant may offer reputation or opinion testimony or evidence of specific
prior acts of violence by the victim to show the reasonableness of defendants
claim of apprehension of danger from the victim.  This is called communicated character
because the defendant is aware of the victims violent tendencies and perceives
a danger posed by the victim, regardless of whether the danger is real or not.  This theory does not invoke Rule 404(a)(2)
because Rule 404 bars character evidence only when offered to prove conduct in
conformity, i.e., that the victim acted in conformity with his violent
character.  Here, the defendant is not
trying to prove that the victim actually is violent; rather, he is proving his
own self-defensive state of mind and the reasonableness of that state of mind.
 
Ex parte Miller,
No. AP-76,167, 2009 WL 3446468, at *4 (Tex. Crim. App. Oct. 28, 2009)
(citations omitted).  Rule 404(a)(2)
provides that [i]n a criminal case . . . evidence of a pertinent character
trait of the victim of the crime offered by an accused is allowed to prove
action in conformity therewith.  [I]n
cases where a persons character or character trait is an essential element of
a . . . defense, proof may also be made of specific instance of that persons
conduct.  Tex. R. Evid. 405; Mozon,
991 S.W.2d at 846; Dudzik, 276 S.W.3d at 561.  
            The purpose
of Rule 404, which allows inclusion of a victims extraneous offenses, is to
develop a propensity for violence that can support a theory of
self-defense.  Excluding evidence of a
type the Legislature intended to be before a jury, by concluding that a fact-finder
might conclude a victim deserved his or her injuries, should be rarely done.
            Instead,
here we ask whether the evidence tends to tempt the jury into making a finding on
grounds apart from proof relating to the offenses or defenses charged.  Morales
v. State, 293 S.W.3d 901, 912 (Tex. App.Texarkana 2009, pet. refd).  This factor seeks to limit a jurys finding
based on emotional response.  See Ex parte Lane, 303 S.W.3d 702, 715
(Tex. Crim. App. 2009).  The extraneous
offenses were probative of Tomasheskis belief that punching Stokes was
reasonable, a matter the jury was charged with deciding.  It does not appear from the record why
knowledge of Stokes extraneous offenses would tempt the jury into a verdict,
decided on irrelevant grounds, that Tomasheski acted in self-defense in
punching Stokes.  See id.  Thus, we do not
believe that the jury would be improperly impressed by the extraneous offenses
given the facts of this case.  The second
factor also favors admission of the excluded evidence.
            C.        Length
of Time to Present Extraneous Offenses Would Likely Be Short
 
            Next, the
proffered evidence would be established by Stokes ex-wife and Dewberry, who
would testify that Stokes assaulted them with a baseball bat.  It would likely take little time to present
these witnesses.  The third factor also
favors admission of the extraneous offenses.
            D.        Tomasheskis
Need for the Evidence Was Slim
 
            The next
factor is Tomasheskis need for this evidence to prove a fact of
consequence.  After the hearing on the
States motion in limine, Tomasheski took the stand during guilt/innocence and
testified Stokes was coming at [him] with his fists clenched.  Tomasheski decked him . . . right on the
mouth.  Stokes got up, quickly walked
four or five feet to another room, and came out swinging the baseball bat at
Tomasheski.  Tomasheski then testified he
took the bat from Stokes, pushed him to the ground, and left without taking the
bat.[2]  As stated, Tomasheski denied hitting Stokes
with the bat.  Although Tomasheski might
have wanted the jury to hear evidence of extraneous offenses to help establish
his reasonable belief that punching Stokes was necessary for his self-defense,
the trial court was within its discretion to find the actual need for the
evidence was minimal.  This factor weighs
against admission.
            Rule
403 creates a presumption of admissibility of all relevant evidence and authorizes
a trial judge to exclude such evidence only when there is a clear disparity
between the degree of prejudice of the offered evidence and its probative
value. Mozon, 991 S.W.2d 841
(citation omitted).  Evidence will be
considered unfairly prejudicial only when it has an undue tendency to suggest
that a decision be made on an improper basis, commonly an emotional one.  Id. (citing Montgomery, 810 S.W.2d at 389).  Only one of the four factors in this case
weighs against the admission of the extraneous offenses to support Tomasheskis
belief that immediate force was necessary. 
In balancing the Rule-403 factors, we find that the probative value of
the extraneous offenses was not substantially[3]
outweighed by the danger of unfair prejudice.  The evidence of Stokes extraneous offenses
should have been allowed.  But that error
is not reversible unless it was also harmful to Tomasheski.
            Tomasheski
argues in his brief that exclusion of extraneous offenses violated his
constitutional right to due process and that, therefore, we are to evaluate
harm under a constitutional harm analysis. 
Points of error on appeal must correspond or comport with objections and
arguments made at trial.  Wright v. State, 154 S.W.3d 235, 241
(Tex. App.Texarkana 2005, pet. refd) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)).  Where a trial objection does not comport with
the issue raised on appeal, the appellant has preserved nothing for review.  Id.;
see Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).  Tomasheski did not fairly and specifically
object to the exclusion of this evidence on the constitutional due process
basis he now urges on appeal.  See id.
 We will not address Tomasheskis
nonpreserved due process claim.
            We examine
the record as a whole when evaluating harm from nonconstitutional error flowing
from the exclusion of relevant evidence, and if we are fairly assured that the
error did not influence the jury or had but a slight effect, we conclude that
the error was harmless.  Walters v. State, 275 S.W.3d 568, 571
(Tex. App.Texarkana 2008, no pet.) (citing
Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005); Morales v. State, 32 S.W.3d 862, 867
(Tex. Crim. App. 2000)).
            Because Tomasheski
denied hitting Stokes with the baseball bat, he could not have employed the
theory of self-defense for that part of the alleged assault.  Thus, admission of the extraneous-offense
evidence would have no bearing on the question of Tomasheskis motivation when
he struck Stokes with a baseball bat as the State alleged in count one of the
indictment.  In this case, Stokes told
the jury Tomasheski hit him with the baseball bat, Knight testified to Stokes bleeding
from his scalp and shoulder injury, and the jury heard Stokes required a
craniotomy and fell into a coma. 
Assessing the credibility of the testimony is within the province of the
jury.  Stubblefield v. State, 79 S.W.3d 171, 176 (Tex. App.Texarkana
2002, pet. refd).  Considering the evidence
presented in this record, the trial court was free to disbelieve Tomasheskis
assertion that he only punched Stokes once and that he did not hit him with the
baseball bat.  The indictment also
alleged Tomasheski hit Stokes with his hands, a fact he confirmed, but
testified was done in self-defense. 
Again, the jury was free to believe Stokes testimony that Tomasheski
was the first aggressor.  Therefore,
because we are fairly assured that exclusion of the extraneous offenses did not
influence the jury or had but a slight effectin its finding against Tomasheski
on his claim that his initial punch was in self-defensewe conclude that there
was no harm.
            We affirm
the judgment of the trial court.  
 
 
 
                                                                                                Josh
R. Morriss, III
                                                                                                Chief
Justice
 
Date Submitted:          June
3, 2010    
Date Decided:             June
23, 2010
 
Do Not Publish
 
 
 




[1]The
general rule is that all evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less
probable, is admissible.  Tex. R. Evid. 401, 402.  The trial court agreed that evidence of Stokes
character was relevant.


[2]In
addition to this evidence, Tomasheski introduced reputation testimony that
Stokes did not have a good reputation for truthfulness.  The State argues this reduced Tomasheskis
need for the evidence.  However, Stokes
reputation for truthfulness, as opposed to his propensity for violence, was not
a fact of consequence in the case.  


[3]We
note that the trial courts finding did not expressly include the word
substantially in its ruling excluding the evidence.
 
Now,
considering that theres two episodes here and considering the fact that the
defendant was in the victims house, considering the fact that the defendant
had an opportunity to leave the house before the victim brought the baseball
bat back, then it seems to me under the Mozon
case, even though the evidence of extraneous acts is admissible under 404, it
is not admissible under 403 because the danger of unfair prejudice outweighs
the probative value.  Its essentially as
the dissent stated in the Mozon case.
 
Missing from that finding is the key term used
in Rule 403that danger of unfair prejudice substantially
outweighs the probative value.


