                                      IN THE
                              TENTH COURT OF APPEALS

                                       No. 10-19-00067-CR

TODRIC MCDONALD,
                                                                       Appellant
v.

THE STATE OF TEXAS,
                                                                       Appellee



                                From the 19th District Court
                                 McLennan County, Texas
                                Trial Court No. 2014-1419-C1


                               MEMORANDUM OPINION


        In two issues, appellant, Todric Deon McDonald, challenges his conviction for

capital murder. See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2019). Because we

overrule both of McDonald’s issues, we affirm.1




        1As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
    I.         THE SELECTION OF AN ALTERNATE JUROR AND THE SEATING OF THE ALTERNATE
                                           ON THE JURY


         In his first issue, McDonald contends that the trial court erred in seating

venireperson number 44 as the alternate juror and ultimately as juror number 12 contrary

to the provisions of article 35.15(d) of the Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. ANN. art. 35.15(d) (West 2006).2

         The record reflects that the trial court decided to seat an alternate juror in addition

to the twelve jurors in this capital-murder in which the State did not seek the death

penalty. The trial court determined that the alternate juror would be selected from the

three members of the venire panel after the last juror had been seated as one of the twelve

jurors. On appeal, McDonald asserts that the alternate juror should have been taken from

the next three venirepersons after the “strike zone.” This issue is of importance to

McDonald because the morning before opening statements were made, a juror was

excused for medical reasons and the alternate was seated as a juror.




         2   Article 35.15(d) of the Code of Criminal Procedure provides:

         The State and the defendant shall each be entitled to one peremptory challenge in addition
         to those otherwise allowed by law if one or two alternate jurors are to be impaneled and
         two peremptory challenges if three or four alternate jurors are to be impaneled. The
         additional peremptory challenges provided by this subsection may be used against an
         alternate juror only, and the other peremptory challenges allowed by law may not be used
         against the alternate juror.

TEX. CODE CRIM. PROC. ANN. art. 35.15(d) (West 2006).

McDonald v. State                                                                                     Page 2
       However, the record shows that McDonald did not object to either the process for

selecting the alternate juror or the seating of the alternate as a juror when another juror

was excused for medical reasons. Nor did McDonald attempt to exercise a peremptory

strike to the selection of the alternate or the seating of the alternate on the jury.

       To preserve error for appellate review, a party must make a timely request,

objection, or motion and state the grounds for the ruling that the complaining party

sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. See TEX. R. APP.

P. 33.1(a)(1); see also Smith v. State, 907 S.W.2d 522, 530 n.6 (Tex. Crim. App. 1995) (noting

that, under article 35.15(d), peremptory strikes for alternates and strikes for the main jury

are totally separate and may not be used in lieu of each other and concluding that the

issue technically was not preserved because “appellant had not actually run out of

peremptories”). Because the record does not demonstrate that McDonald objected or

attempted to exercise a peremptory strike to the selection of the alternate juror or the

seating of the alternate as a juror, we cannot say that McDonald preserved anything for

appellate review in this issue. See TEX. R. APP. P. 33.1(a)(1); see also Smith, 907 S.W.2d at

530 n.6. Accordingly, we overrule McDonald’s first issue.

                            II.    EXTRANEOUS-OFFENSE EVIDENCE

       In his second issue, McDonald argues that the trial court abused its discretion by

admitting extraneous-offense evidence that he had shot at individuals other than the


McDonald v. State                                                                       Page 3
murder victims before the murders; that he had stolen a vehicle; and that he had evaded

arrest or detention by using a motor vehicle. Specifically, McDonald asserts that the

admitted extraneous-offense evidence did not satisfy the requirements for admission

under Texas Rules of Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b).

A.     Standard of Review

       We review the trial court’s admission of extraneous-offense evidence for an abuse

of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s

ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that:     (1) an extraneous transaction is relevant to a material, non-

propensity issue; and (2) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. De La Paz, 279 S.W.3d at 344. “Furthermore, if the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, it will not be disturbed even if the

trial judge gave the wrong reason for his right ruling.” Id.

B.     Texas Rule of Evidence 404(b)

       Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the defendant in order to show

he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the common-


McDonald v. State                                                                     Page 4
law principles that a defendant should be tried only for the offense for which he is

charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29, 32 n.3

(Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)

(explaining that a defendant is generally to be tried only for the offense charged, not for

any other crimes).

       Extraneous-offense evidence, however, may be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)

is not exhaustive. See Prible, 175 S.W.3d at 731. For example, extraneous-offense evidence

may be admissible to demonstrate conduct by a defendant that indicates a consciousness

of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also

Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980). An extraneous offense may

also be admissible to show identity when identity is at issue in the case, or when the

defense cross examines witnesses or alleges that someone else committed the crime. See

Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996).

       “Whether extraneous[-]offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court.” Moses v. State,

105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b) ruling admitting

evidence is generally within the zone of reasonable disagreement “if there is evidence


McDonald v. State                                                                      Page 5
supporting that an extraneous transaction is relevant to a material, non-propensity

issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

       In the instant case, the State proffered the testimony of two eyewitnesses—Ruby

Murray and Lisa Muniz—to the shootings of Justin and Ulyssess Gonzales. However,

during cross-examination, defense counsel established that both Murray and Muniz were

using methamphetamine at the time of the shootings and argued that both were high and

unreliable in identifying McDonald as being involved in the shooting. The State also

proffered the testimony of Melissa Moore, who helped McDonald hide out after the

shootings and helped him hide the vehicle he was driving, which was a blue GMC Yukon

that he had stolen from Demontrae Williams at Hap’s Icehouse in Waco, Texas. Moore

also told police that McDonald admitted to killing two people as he ran out of Moore’s

house when he saw a news report on the shootings. At trial, defense counsel sought to

discredit Moore’s testimony by asserting that Moore is a “meth head” and that she is

lying and basing her testimony on hearsay. Defense counsel’s cross-examination, as well

as arguments made at trial, put identity at issue. As stated above, extraneous-offense

evidence may be admissible to show identity when identity is at issue in the case, as it

was here. See Page, 213 S.W.3d at 336; see also Lane, 933 S.W.2d at 519.

       To rebut defense counsel’s identity argument, the State presented evidence of shell

casings from McDonald’s gun that was used in the shooting of Justin and Ulyssess, as

well as other crime scenes. The State’s firearms expert, April Kendrick, matched these


McDonald v. State                                                                   Page 6
casings to the weapon found in McDonald’s possession when he was apprehended in an

evading incident that transpired a few days after the shootings. The expert could also

match that weapon with casings found at two other shootings, including when McDonald

shot at Micah McNeill while stealing his gun and when McDonald shot at Williams while

stealing Williams’s blue GMC Yukon.

       The State also presented evidence of the time frame of the shootings, as well as the

extraneous offenses. The armed robbery that resulted in the theft of Williams’s blue GMC

Yukon occurred on the evening of May 10, 2014; the aggravated assault of McNeill

occurred at 11:00 p.m. on May 12, 2014; and the shootings occurred at 4:00 a.m. on May

13, 2014. In other words, all of these events transpired within a short period of time and

showed McDonald’s plan, opportunity, and modus operandi.

       Finally, evidence of the evading incident that occurred a few days after the

shooting is indicative of a consciousness of guilt for which extraneous-offense evidence

is also admissible. See Urtado, 605 S.W.2d at 915; see also Torres, 794 S.W.2d at 598.

Therefore, given that the complained-of extraneous-offense evidence was admissible for

a number of proper purposes, we conclude that the evidence was relevant for more than

just character conformity. See TEX. R. EVID. 404(b).

C.     Texas Rule of Evidence 403

       Next, we address McDonald’s Rule 403 argument. Evidence, though relevant, can

nonetheless be excluded when its probative value is substantially outweighed by the


McDonald v. State                                                                    Page 7
danger of unfair prejudice. See id. at R. 403. Once a trial court determines that extraneous-

offense evidence is admissible under Rule 404(b), the trial court must, on proper objection

by the opponent of the evidence, weigh the probative value of the evidence against its

potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App.

1991); see TEX. R. EVID. 403. Rule 403 favors admissibility of relevant evidence, and the

presumption is that relevant evidence will be more probative than unfairly prejudicial.

Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the

opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d 263,

266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest a

decision on an improper basis, commonly, though not necessarily, an emotional one.’”

Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).

       Although not limited to the following enumerated factors, courts should balance

the following under a Rule 403 analysis: (1) the probative value of the evidence; (2) the

potential of the evidence to impress the jury in some irrational, yet indelible way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the evidence.

Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted a proper

balancing test if it overrules a 403 objection, regardless of whether it conducted the test

on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).

       As stated earlier, McDonald challenged the identity element by attacking the

reliability of the testimony of eyewitnesses Murray and Muniz based on their drug use at


McDonald v. State                                                                      Page 8
the time of the shootings. The State had a need for the complained-of extraneous-offense

evidence because it was probative on the issue of identity, and because it rebutted

McDonald’s defensive theory. See Moses, 105 S.W.3d at 626 (noting that rebuttal of a

defensive theory is one of the permissible purposes for which extraneous-offense

evidence may be admitted); see also Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim.

App. 2005) (stating that extraneous offenses are admissible to rebut theories raised by

testimony of a defense witness during direct examination or a State’s witness during

cross-examination). The record does show that some time was spent on developing the

complained-of extraneous-offense evidence. However, there is nothing in the record

demonstrating that this evidence impressed the jury in some irrational, yet indelible, way.

In other words, we cannot say that the extraneous-offense evidence confused, distracted,

or caused the jury to give the evidence undue weight.

       Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the complained-of

extraneous-offense evidence and its probative value. See id.; see also Conner, 67 S.W.3d at

202. Thus, we cannot conclude that the trial court abused its discretion by admitting this

evidence over McDonald’s Rule 403 and 404(b) objections. See TEX. R. EVID. 403, 404(b);


McDonald v. State                                                                    Page 9
see also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule McDonald’s

second issue.

                                   III.   CONCLUSION

       Having overruled both of McDonald’s issues on appeal, we affirm the judgment

of the trial court.




                                               JOHN E. NEILL
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
Do not publish
[CRPM]




McDonald v. State                                                                Page 10
