                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
         _______________________________

                  06-19-00261-CR
         _______________________________


        THOMAS PAUL CARROLL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 115th District Court
               Upshur County, Texas
               Trial Court No. 18310




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                 MEMORANDUM OPINION

        After an Upshur County jury convicted Thomas Paul Carroll of assault against a peace

officer, Carroll was sentenced to ten years’ imprisonment and ordered to pay a $5,000.00 fine. See

TEX. PENAL CODE ANN. § 22.01(b-2) (Supp.). In his sole point of error on appeal, Carroll argues

that the trial court abused its discretion in admitting an extraneous offense of resisting arrest during

the guilt/innocence phase of trial.

        Because we conclude that Carroll was not harmed by the admission of the extraneous

offense evidence, we overrule Carroll’s sole point of error. Even so, we modify the trial court’s

judgment to reflect that Carroll’s conviction resulted from a jury trial, he did not plead guilty to

the offense, there was no plea bargain, and he had the right to appeal. We affirm the judgment, as

modified.

I.      Carroll Was Not Harmed by the Admission of Extraneous-Offense Evidence

        A.      Factual and Procedural Background

        The State alleged that, on or about January 31, 2019, Carroll assaulted Taylor Fast, a peace

officer, while Fast was lawfully discharging an official duty. Video recordings of the incident,

which were shown to the jury without objection, demonstrated that Carroll was intoxicated at the

time of the offense.

        Before opening statements at trial, in a hearing outside of the jury’s presence, the State

sought to introduce facts showing that Carroll had been placed on deferred adjudication

community supervision in July 2018 for resisting arrest. The State noted that it had filed a motion

to adjudicate guilt alleging that, as a result of the January 2019 assault, Carroll had violated the

                                                   2
terms and conditions of his community supervision by resisting Fast’s arrest, consuming alcohol,

and being publicly intoxicated and that Carroll had failed to comply with the trial court’s orders to

complete community service. The State abandoned the allegation that Carroll had resisted Fast’s

arrest but argued that a docket entry showed Carroll pled true to the allegations that he had

consumed alcohol and was publicly intoxicated. The allegations in the State’s motion to adjudicate

guilt were only required to be proved by a preponderance of the evidence, but the State argued that

Carroll’s pleas of true to the alcohol-related allegations constituted a judicial admission providing

proof, beyond a reasonable doubt, that Fast was discharging a legal duty at the time of the assault.1

Based on this reasoning, the State argued that it should be allowed to publish the judgment

adjudicating Carroll’s guilt of the 2018 offense in the trial of this case.2

            Carroll objected to the introduction of this extraneous-offense evidence based on Rules 403

and 404(b) of the Texas Rules of Evidence, referenced the recording of the 2019 incident that

would be shown to the jury, and argued that issues like identity and the county of the offense were

not in dispute. Carroll also argued that the State’s introduction of the judgment adjudicating guilt

was a ploy to “bootstrap” the fact that he had resisted arrest in the past. In the course of attempting

to explain why Carroll’s pleas to the State’s motion to adjudicate guilt should be admitted, the

State failed to present any argument showing why the extraneous offense of resisting arrest in 2018

was admissible under Rules 403 and 404(b). Even so, the trial court indicated that it would allow

the State to introduce the evidence.


1
    The State also argued that the extraneous offense was relevant to prove the issue of identity.
2
    The State argued that the judgment could be admitted as an exception to hearsay.
                                                              3
       As a result, the State proffered Exhibit 2, which was comprised of (1) the complaint and

information in the prior offense alleging that Carroll “intentionally or knowingly prevent[ed] or

obstruct[ed] N. Starr, a person the defendant knew to be a peace officer, from effecting an arrest

of the defendant, by using force against said officer,” (2) the terms and conditions of Carroll’s

community supervision, (3) the judgment adjudicating his guilt for resisting arrest, (4) the State’s

allegations in its motion to adjudicate guilt, and (5) a docket sheet entry showing that Carroll pled

true to some of the State’s allegations. Carroll again objected to the introduction of Exhibit 2,

argued that the judgment never referenced any plea of true, and argued that the State’s allegation

of public intoxication could not be used to show that Fast was discharging an official duty because

it did not allege that Carroll was arrested as a result of intoxication. The trial court overruled

Carroll’s objections.

       B.      Standard of Review

       On appeal, Carroll argues that the trial court erred in admitting the extraneous-offense

evidence of the 2018 resisting arrest conviction over his Rule 403 and 404(b) objections. “We

review a trial court’s decision to admit or exclude evidence for an abuse of discretion.” Flowers

v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion occurs only if the decision

is ‘so clearly wrong as to lie outside the zone within which reasonable people might disagree.’”

Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing 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.” Id. (citing Moses v. State, 105 S.W.3d 622, 627 (Tex.

                                                 4
Crim. App. 2003)). “We will uphold an evidentiary ruling if it was correct on any theory of law

applicable to the case.” Id. (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009)).

          C.     Analysis

          “An accused must be tried only for the offense with which he or she is charged. The

accused may not be tried for a collateral crime or for being a criminal generally.” Jackson v. State,

320 S.W.3d 873, 882 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Stafford v. State, 813 S.W.2d

503, 506 (Tex. Crim. App. 1991)). For this reason, “[g]enerally, evidence of extraneous offenses

may not be used against the accused in a criminal trial.” Daggett v. State, 187 S.W.3d 444, 450

(Tex. Crim. App. 2005). “While such evidence will almost always have probative value, it forces

the defendant to defend himself against uncharged crimes as well as the charged offense, and

encourages the jury to convict a defendant based upon his bad character, rather than proof of the

specific crime charged.” Id. at 450–51. As a result, Rule 404 prohibits admissibility of relevant

evidence of a person’s character or character trait in certain circumstances. TEX. R. EVID. 404.

Also, “[e]vidence that is admissible under [exceptions outlined in] Rule 404(b) may nonetheless

‘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.’” James v. State, 555 S.W.3d 254, 260 (Tex. App.—

Texarkana 2018, pet. dism’d, untimely filed) (quoting TEX. R. EVID. 403).

          The State’s brief does not adequately address Carroll’s Rule 404 argument. As for Rule

403, the State argues that Carroll’s pleas of true to certain portions of its motion to adjudicate guilt

                                                   5
somehow “proved vital elements of the State’s case” here, but the State had a higher burden of

proof in this case, and the State’s brief does not properly explain how the prior conviction for

resisting arrest or its underlying facts were admissible under Rule 403.3 Assuming, arguendo, that

the trial court erred and the probative value of evidence of the prior resisting arrest offense was

substantially outweighed by the danger of unfair prejudice, we find that Carroll was not harmed

by the admission of the evidence.

           Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that an appellate court

must disregard a nonconstitutional error that does not affect a criminal defendant’s substantial

rights. TEX. R. APP. P. 44.2(b). An error affects a substantial right of the defendant when the error

has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Nonconstitutional error is not grounds for reversal

if, “after examining the record as a whole,” there is “fair assurance that the error did not influence

the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)

(quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998)). In assessing the likelihood that the jury’s decision was

adversely affected by the error, we “consider everything in the record, including any testimony or


3
    When conducting a Rule 403 balancing test, 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 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.

Price v. State, 594 S.W.3d 674, 680 (Tex. App.—Texarkana 2019, no pet.) (quoting Gigliobianco v. State, 210 S.W.3d
637, 641–42 (Tex. Crim. App. 2006)).
                                                            6
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.” Id. at 355 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000)).

            In this case, the jury was presented with strong evidence of guilt. Fast testified that he was

patrolling in a marked unit when he saw Carroll stumbling across a four-lane highway at 10:30

p.m. Fast continued to watch Carroll, witnessed him exhibiting a gait, suggesting that he was

intoxicated, and decided to stop him. Fast testified, and the jury saw on the recording, that

Carroll’s speech was heavily slurred and he had difficulty keeping his balance. Carroll decided to

arrest Fast for public intoxication, but Carroll resisted arrested. Recordings showed that Carroll

began fighting Fast. Fast testified that Carroll punched him in his temple and injured his hand

during the scuffle and that Carroll admitted to striking Fast while being transported in the patrol

car.4

            Due to the strong evidence of guilt, we find that any error in admission of evidence of

Carroll’s extraneous offense could not have had a substantial and injurious effect or influence in




4
    Also, in the charge on guilt/innocence, the jury was instructed,

            THAT CERTAIN EVIDENCE WAS ADMITTED IN EVIDENCE BEFORE YOU IN REGARD
            TO THE DEFENDANT HAVING BEEN ACCUSED, OF OFFENSES OTHER THAN THE ONE
            FOR WHICH HE IS NOW ON TRIAL. SUCH EVIDENCE CANNOT BE CONSIDERED BY
            YOU AGAINST THE DEFENDANT AS ANY EVIDENCE OF GUILT IN THIS CASE. SAID
            EVIDENCE WAS ADMITTED BEFORE YOU FOR THE PURPOSE OF AIDING YOU, IF IT
            DOES AID YOU, IN DETERMINING THE INTENT OF THE DEFENDANT, AND LACK OF
            ACCIDENT OR MISTAKE AND TO REBUT AN AFFIRMATIVE REPRESENTATION OF
            THE DEFENDANT, AND YOU MAY CONSIDER IT FOR THAT PURPOSE ONLY IF YOU
            FIND THOSE ACTS WERE COMMITTED BEYOND A REASONABLE DOUBT.
                                                              7
determining the jury’s verdict. Because we find that Carroll was not harmed by the admission of

extraneous-offense evidence, we overrule his sole point of error.

II.    We Must Modify the Judgment

       We must modify the trial court’s judgment to correct several deficiencies. The record

demonstrated that Carroll was convicted by a jury after he rejected the State’s plea offer and pled

“[n]ot guilty” to the offense.     Even so, the trial court’s judgment is mistakenly labeled

“JUDGMENT OF CONVICTION BY COURT—WAIVER OF JURY TRIAL.” It also says that

Carroll pled guilty to the offense, contains terms of a plea bargain that was not made in this case,

and states that Carroll waived his appeal and did not have permission to appeal.

       “This Court has the power to correct and modify the judgment of the trial court for accuracy

when the necessary data and information are part of the record.” Anthony v. State, 531 S.W.3d

739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d)). “The authority of an appellate court to reform incorrect judgments is not

dependent upon the request of any party, nor does it turn on the question of whether a party has or

has not objected in the trial court.” Id. (quoting Asberry, 813 S.W.2d at 529–30).

       We modify the trial court’s judgment to reflect that Carroll was tried by a jury after he pled

not guilty to the offense, there were no plea bargains made in this case, and Carroll had the right

to appeal.

III.   Conclusion



                                                 8
       We modify the trial court’s judgment (1) by replacing the phrase “JUDGMENT OF

CONVICTION BY COURT—WAIVER OF JURY TRIAL” with the phrase “JUDGMENT OF

CONVICTION BY JURY,” (2) to reflect that Carroll pled “not guilty” to the offense, (3) by

deleting the phrase “Terms of Plea Bargain (if any): or □ Terms of Plea Bargain are attached and

incorporated herein by this reference” and replacing it with the phrase “Verdict of Jury,” and (4)

by deleting the phrase “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” As

modified, we affirm the judgment.




                                             Scott E. Stevens
                                             Justice

Date Submitted:       July 28, 2020
Date Decided:         August 13, 2020

Do Not Publish




                                                9
