                             COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                                  NO. 02-12-00055-CR


LARRY W. MISHLER                                                       APPELLANT

                                            V.

THE STATE OF TEXAS                                                           STATE


                                         ----------

          FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

                                         ----------

                             MEMORANDUM OPINION1

                                         ----------

                                     I. INTRODUCTION

          Appellant Larry W. Mishler appeals his conviction for assault—bodily

injury.       In one point, Mishler argues that the trial court erred by denying his

request that a limiting instruction be included in the guilt-innocence-stage jury

charge. We will affirm.

          1
          See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      According to the testimony of Damon Bullock, in the late evening of May 6,

2010, Mishler and his wife, June, arrived at a bar that they owned. Bullock, the

bartender and Mishler’s employee, stated that Mishler and June had arrived with

their friend, Chris Currier, and that all three of them were intoxicated. As the

evening turned into the early morning of May 7, Bullock averred that Mishler had

knocked a handful of receipts out of his hand, had started shoving him, and that

then Bullock and Mishler had gotten into a physical altercation. After announcing

that she was going to get her gun, June left the bar area, returned to the bar with

her gun, and fired a shot. By Bullock’s account, Currier caught the act of June

shooting her gun on his cell phone and announced that he had done so.

      Bullock testified that as Currier began to leave, Mishler demanded Currier

hand over his cell phone and then Mishler ―started hitting [Currier] in the back of

the head.‖ Even though this case involves Mishler’s altercation with Currier, both

the State and Mishler discussed the altercation between Mishler and Bullock that

preceded June’s gunshot during their opening arguments. Furthermore, both the

State and Mishler elicited testimony from Bullock concerning the physical

altercation between Bullock and Mishler.       Mishler never objected to these

opening arguments or Bullock’s testimony regarding his and Mishler’s fight. After

the evidence closed, Mishler requested that an extraneous offense instruction be

included in the court’s charge. The trial court denied this request. The jury

returned a verdict of guilty. After suspending the imposition of his 365 days’ jail


                                        2
sentence, the trial court placed Mishler on probation for two years. This appeal

followed.

                                   III. DISCUSSION

      In his sole point, Mishler argues that the trial court erred by refusing his

request for a limiting instruction regarding the altercation between Mishler and

Bullock. We disagree.

      ―[A] limiting instruction concerning the use of extraneous offense evidence

should be requested, and given, in the [guilt-innocence-stage] jury charge only if

the defendant requested a limiting instruction at the time the evidence was first

admitted.‖   Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).

―Once evidence has been admitted without a limiting instruction, it is part of the

general evidence and may be used for all purposes.‖ Id.

      Here, Mishler did not request a limiting instruction at the time Bullock’s

testimony was admitted. Thus, the trial court had no obligation to limit the use of

that evidence later in the jury charge. Id. (stating that if a defendant does not

request a limiting instruction at the time that evidence is admitted, ―then the trial

judge has no obligation to limit the use of that evidence later in the jury charge‖);

Prescott v. State, 123 S.W.3d 506, 515–16 (Tex. App.—San Antonio 2003, no

pet.) (defendant who failed to request limiting instruction concerning use of

extraneous offenses ―at the moment the evidence [was] admitted‖ was not

entitled to limiting instruction in jury charge). Therefore, we hold that the trial

court did not err by refusing to include a limiting instruction in the guilt-innocence-


                                          3
stage jury charge regarding the physical altercation between Mishler and Bullock.

We overrule Mishler’s sole point.

                                IV. CONCLUSION

      Having overruled Mishler’s sole point on appeal, we affirm the trial court’s

judgment.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 22, 2013




                                        4
