      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00722-CR
                                        NO. 03-14-00723-CR
                                        NO. 03-14-00724-CR



                                       Mark Fruge, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
             NOS. D-1-DC-13-200256, D-1-DC-13-200257, D-1-DC-13-200259
                 HONORABLE DAVID CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Under two separate indictments, Mark Fruge was charged with the offenses of

aggravated assault with a deadly weapon and aggravated robbery. See Tex. Penal Code §§ 22.01

(listing elements of assault), .02(a)(2) (specifying that assault is aggravated assault if person uses or

exhibits deadly weapon), 29.02 (governing crime of robbery), .03(a)(2) (specifying that robbery is

aggravated robbery if defendant used or exhibited deadly weapon). Under a third indictment, Fruge

was charged with one count of attempted capital murder and with one count of aggravated assault

against a public servant. See id. §§ 15.01(a) (detailing when person attempts to commit offense),

19.02(b) (defining offense of murder), .03(a)(1) (explaining that murder is capital murder if victim

is peace officer or fireman), 22.01(a), .02(a) (describing assault and aggravated assault). The three
indictments also contained enhancement paragraphs alleging that Fruge had previously been

convicted of three felony offenses.

               At the end of the guilt-or-innocence phase of the trial, the jury acquitted Fruge of

the attempted-capital-murder charge but found him guilty of the three other offenses. During the

punishment phase, Fruge entered pleas of true for the enhancement allegations. At the end of the

punishment phase, the jury determined that Fruge should be imprisoned for life for each offense.

See id. §§ 22.02(b)(2)(B) (explaining that, in general, aggravated assault is second-degree felony

but is first-degree felony if offense is committed against public servant), 29.03(b) (stating that

aggravated robbery is first-degree felony); see also id. § 12.42(d) (elevating punishment range

for felony offense of any degree if defendant had previously been convicted of two felonies). The

district court entered its judgment in accordance with the jury’s determinations.

               In two issues on appeal, Fruge asserts that the district court erred by “granting

the State’s challenge to a veniremember” and by admitting “evidence of a car jacking that was

committed after” the offenses in question. We will affirm the district court’s judgments of conviction.


                                           DISCUSSION


Challenge to Jury Panelist

               In his first issue on appeal, Fruge asserts that the district court “erred in granting the

State’s challenge for cause,” which denied him “a fair and impartial trial.”

               During voir dire, the State asked the jury panel whether they thought that a case had

to be proven “beyond all doubt” or proven “with 100 percent certainty before they can find someone

guilty,” and the panelist at issue responded as follows:

                                                   2
        [Panelist]: I believe that we’ve been talking about incarceration, taking years of
        someone’s life that I would have to be absolutely certain. The level of false
        convictions are incorrect, and with convictions these days I would feel horrible about
        sending someone to prison for something that was doubtful.


Later, when Fruge was discussing reasonable doubt with the panel, the same panelist stated as

follows: “It just kind of sounds to me like in talking about reasonable doubt, it almost sounds to me

like you’re trying to prove innocence instead of proving guilty. It just sounds backwards to me like

you’re trying to prove innocence -- you’re guilty until proven innocent. It just sounds like that to me.”

                When the State and Fruge were discussing which jurors should be struck, the panelist

was brought before the district court and questioned regarding his previous statements. That exchange

occurred as follows:


        [State]: I know when [the State] was questioning you about the burden of proof and
        reasonable doubt and beyond a reasonable doubt, you had made the comment that
        you would need to be 100 percent certain.

        [Panelist]: Yeah.

        [State]: And you understand that the law is beyond a reasonable doubt. There is
        actually -- while there is no definition for beyond a reasonable doubt, there is case
        law that says it’s not 100 percent certainty. Would you be able to follow the law and
        listen to a case and determine guilt or innocence based on beyond a reasonable doubt,
        or would you need 100 percent certainty?

        [Panelist]: In my personal beliefs, spirituality and opinion I just feel that I’m taking
        into consideration someone else’s livelihood, I would need to be pretty darn certain.

        [Court]: Okay. And when you say that, would you need to be 100 percent certain?

        [Panelist]: Yes.

        ...



                                                   3
       [Fruge]: When you say “100 percent certain,” are you attributing that to beyond a
       reasonable doubt level or -- I’m not sure what -- because you say you have to be
       pretty confident.

       [Panelist]: If I’m going to [convict] somebody [of] a crime, then I would want to be
       100 percent certain that that crime was committed beyond a reasonable doubt.

       ...

       [Fruge]: The point is, are you going to hold the State to its burden, or are you going
       to require the State to a higher burden than what they’re required?

       [Panelist]: I would hold someone innocent until proven guilty, not the other way
       around, which to me is how it sounds with our discussion. It sounds like people are
       trying to prove innocence instead of guilt.

       ...

       [Fruge]: Are you going to require the State -- to hold the State to a higher burden of
       proof than beyond a reasonable doubt?

       [Panelist]: No.


               After the State and Fruge finished questioning the panelist, Fruge argued that the

panelist should not be struck for cause because the panelist “said he would . . . hold the State to its

burden and not more,” but the district court explained that the panelist “said 100 percent three times,

so I’ll grant the State’s motion to strike for cause. I think he won’t follow the law that they’re

entitled to follow.”

               On appeal, Fruge urges that the district court erred when it made its ruling because

it improperly focused on the panelist’s use of the phrase “100 percent,” because it did not consider

that the panelist only adopted the phrase “100 percent” after the State used the phrase, because the

panelist only used the phrase to describe his personal belief regarding the evidence and not to



                                                  4
describe the State’s burden, because panelists are allowed to decide what “proof beyond a reasonable

doubt” means for themselves, because panelists should not be excused “based upon the type and

amount of evidence they require to reach that level of confidence,” and because the State did not

meet its burden of establishing that the panelist understood the law but could not follow it.

                Under the Code of Criminal Procedure, a panelist may be struck for cause at the

request of the State if the panelist “has a bias or prejudice against any phase of the law upon which

the State is entitled to rely for conviction or punishment.” Tex. Code Crim. Proc. art. 35.16(b)(3).

Because “the law permits a range of ‘reasonable doubt,’” a venireperson who says that “he will

hold the State to the high end of the range is not requiring anything that the law does not tolerate.”

Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995). However, a venireperson “who

requires proof to a level of confidence ‘beyond all doubt’ is . . . challengeable for cause on the basis

of inability to follow the law.” Id. at 533 n.1; see id. at 533-34 (explaining that if venireperson really

does hold State to higher burden than law allows, he should be excused for cause); see also Coleman

v. State, 881 S.W.2d 344, 359-60 (Tex. Crim. App. 1994) (concluding that venireperson may

properly be excused for cause when he would hold State to burden higher than beyond reasonable

doubt and that venireperson was properly excluded when she made statements indicating that State

would have to prove case beyond all doubt and that she would have to be 100 percent certain).

                “Because the trial court is in the best position to evaluate the demeanor of a

prospective juror, we review a trial court’s determination of a challenge for cause only for clear

abuse of discretion.” Fierro v. State, 969 S.W.2d 51, 57 (Tex. App.—Austin 1998, no pet.). In other

words, “we reverse ‘only when the trial judge’s decision was so clearly wrong as to lie outside that



                                                    5
zone within which reasonable persons might disagree.’” Id. (quoting Kemp v. State, 846 S.W.2d 289,

297 (Tex. Crim. App. 1992)). Moreover, a reviewing court should “recognize that it is faced with

only a cold record. Perforce, when undertaking an abuse of discretion review, the juror’s bias need

not be proven with ‘unmistakable clarity.’” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

1992). In addition, “[w]hen the potential juror’s answers are vacillating, unclear or contradictory,

particular deference is accorded to the trial court’s decision.” King v. State, 29 S.W.3d 556, 568

(Tex. Crim. App. 2000); see Rachal v. State, 917 S.W.2d 799, 810 (Tex. Crim. App. 1996)

(explaining that trial court’s “superior point of view is particularly important and deserving of

our deference” when potential juror’s statements are unclear). Furthermore, “[w]hen reviewing a

trial court’s decision to grant or deny a challenge for cause, we look at the entire record to determine

if there is sufficient evidence to support the court’s ruling.” Feldman v. State, 71 S.W.3d 738,

744 (Tex. Crim. App. 2002); see Fierro, 969 S.W.2d at 58 (stating that when “reviewing the

trial court’s exercise of its discretion in a particular case, we review the totality of the relevant

voir dire examination”).

                As an initial matter, we note that although the State used the phrase “100 percent

certainty” before the panelist answered the question about the burden of proof, the panelist did say

that he “would have to be absolutely certain” when he answered the question. Moreover, when he

was called before the district court to discuss his answer, he agreed that he had previously made the

comment that he would have to be “100 percent certain” to convict. In addition, although the

panelist answered “no” when asked if he would hold the State to a higher burden than beyond a

reasonable doubt and although the panelist explained that he “would want to be 100 percent certain



                                                   6
that the crime was committed beyond a reasonable doubt,” the panelist also stated that his “personal

beliefs, spirituality and opinion” would require him to be 100 percent certain.

                Under the circumstances present in this case in which the panelist made contradictory

and vacillating statements regarding the burden to which he would require the State to prove its case

and in which some of those statements demonstrated that the panelist would require proof beyond

all doubt before he could convict, we cannot conclude that the district court clearly abused its

discretion by granting the State’s motion to strike the panelist for cause. Accordingly, we overrule

Fruge’s first issue on appeal.1


        1
          In his brief, Fruge suggests that the exclusion of the juror is not subject to a harm analysis
and that the improper exclusion, without more, warrants a reversal of his conviction. As support for
this proposition, Fruge relies on Gray v. Mississippi, 481 U.S. 648 (1987). Although we need not
reach the issue because we have determined that the district court did not abuse its discretion by
striking the panelist for cause, we do note that given the significant differences between this case
and Gray, Fruge’s reliance on Gray seems misplaced. See id. at 652-67 (concerning death-penalty
conviction and addressing circumstances in which state sought systemic exclusion by lodging
challenges for cause and peremptory challenges against every juror who expressed any uncertainty
in ability to vote for death penalty, where state sought to challenge additional juror who expressed
no opposition to death penalty and argued that trial court had forced state to waste its peremptory
challenges earlier, where trial court removed juror over defense’s objection, where Supreme Court
determined that juror had been removed for cause but was not substantially impaired, and where
Supreme Court reaffirmed that this type of violation of right under Witherspoon is not subject to
harmless-error review).

         Moreover, the court of criminal appeals has explained that the holding from Gray only
applies to cases in which there is an erroneous Witherspoon exclusion and that if a “Witherspoon
error is not at issue, the erroneous excusal of a veniremember will call for reversal ‘only if the record
shows that the error deprived the defendant of a lawfully constituted jury,’” meaning that the jurors
who actually sat were not impartial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009)
(quoting Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998)); see Witherspoon v. Illinois,
391 U.S. 510, 520-21 (1968) (determining that eliminating every venireperson who expressed any
reservations about death penalty produced jury uncommonly willing to condemn person to death).
In addition, we note that Fruge has made no showing on appeal and that nothing in the record
demonstrates that the panelist’s exclusion deprived Fruge of a lawfully constituted jury or that the

                                                   7
Evidence of Extraneous Offense

               In his second issue on appeal, Fruge argues that the district court erred by allowing

the State to introduce evidence regarding an extraneous offense that he allegedly committed.

               During the trial, evidence was presented indicating Fruge’s culpability for the

crimes that he was ultimately convicted of.2 In particular, the evidence showed as follows:


       •       Abraham Martinez, who was an employee for an armored car company, went
               into a store to pick up deposits.

       •       While Martinez was in the store, Fruge pointed a gun at him and demanded
               the money.

       •       Fruge later pointed a gun at the cashier in the store, Ann Marie Lozano, or at
               the cash register.

       •       Fruge pulled the trigger multiple times and shot the cash register, a post by
               the register, and a computer, which were all very close to Lozano.

       •       Lozano ducked when she saw the gun and stayed behind the counter until
               Fruge left and everyone stopped screaming.

       •       Fruge left the store and ran to the back of the shopping center.

       •       Officer Roosevelt Granderson was in the area, observed Fruge driving away
               from the scene, and pursued Fruge.



jury that sat was not impartial. See Abalos v. State, No. 03-01-00351-CR, 2002 Tex. App. LEXIS
2867, at *4 (Tex. App.—Austin Apr. 25, 2002, pet. ref’d) (not designated for publication)
(overruling issue where defendant did not allege and where record did not show that alleged error
deprived him of lawful jury). Accordingly, even if we concluded that the district court abused its
discretion by striking the panelist, we would be unable to conclude that the error was harmful.
       2
         During their testimonies, some of the witnesses did not refer to Fruge by name or identify
him. However, because identity is not an issue in this appeal and because Fruge was positively
identified by several of the witnesses and through DNA testing, we will refer to the subject of the
testimony as Fruge for ease of reading.

                                             8
        •       Fruge turned onto a road behind another shopping center and stopped his car.

        •       When Officer Granderson got out of his car, Fruge started firing at him.

        •       After Fruge ran to a nearby wooded area, Officer Granderson pursued him.

        •       Officer Granderson caught up with Fruge and ordered Fruge to stop.

        •       Fruge turned around, shot multiple times, and hit Officer Granderson in
                the leg.

        •       After shooting Officer Granderson, Fruge ran from the scene.


                In addition to the evidence summarized above relating to the charged offenses,

evidence was introduced showing that the police searched the car that Fruge abandoned, found an

address listed for the car after running a license-plate check and after seeing a magazine in the

car with Fruge’s name and address on it, went to the nearby apartment complex with that address,

discovered Fruge at the complex, apprehended Fruge, and found a gun as well as money wrapped

in plastic.

                The evidence that forms the subject of Fruge’s second issue on appeal concerns

events that occurred in the moments after Fruge shot Officer Granderson in the leg and before he

was found in the nearby apartment complex. Specifically, Richard Harris testified that on the day

in question, Fruge approached him as he was walking to his car; that Fruge “produced a pistol”; that

the pistol was aimed at the ground; that Fruge never pointed the pistol at him; that Fruge said, “we

were going for a ride”; that Fruge got into the backseat of Harris’s car; that Fruge told Harris to start

driving and directed Harris; that Fruge said, “he wasn’t going to hurt me”; and that Fruge revealed

that “he had done something that he shouldn’t have” and needed to get out of the area. In addition,



                                                   9
Harris related that the incident lasted about fifteen minutes and that Fruge got out of the car after

telling Harris to stop. When describing the incident, Harris testified that Fruge never raised his voice.

During Harris’s testimony, three photos of the area where the incident occurred were introduced into

evidence. Earlier in the trial, four photos of Harris’s car were admitted into evidence as exhibits.

                On appeal, Fruge asserts that the district court erred by admitting evidence concerning

his alleged interaction with Harris. In particular, Fruge asserts that the evidence was evidence of an

extraneous offense and that the evidence had no relevance to the issues other than to establish

“character conformity,” which is not permitted under the Rules of Evidence. See Tex. R. Evid.

404(b)(1) (stating that evidence of extraneous offense may not be used “to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the character”);

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (on reh’g) (explaining that

evidence is inadmissible if it has “no relevance apart from character conformity”). Moreover, Fruge

argues that the evidence had no relevance apart from impermissibly establishing his character

because the evidence regarding the charged offenses and regarding his arrest were “entirely

explained without the need of the extraneous” offense evidence.

                When reviewing a trial court’s ruling on the admission of evidence, appellate courts

use an abuse-of-discretion standard of review. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.

App. 2010). Under that standard, a trial court’s ruling will only be deemed an abuse of discretion

if it is so clearly wrong as to lie outside the zone of reasonable disagreement, Lopez v. State,

86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that



                                                   10
the trial court’s decision “is reasonably supported by the record and is correct under any theory of

law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

               In general, Rule 404 does prohibit the admission of evidence of an extraneous offense

to establish a person’s character, but the Rule also provides a non-exhaustive list of permitted uses

for evidence of extraneous offenses, including “proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Tex. R. Evid. 404(b)(2). In

addition, “extraneous offense evidence may be admissible as contextual evidence,” Swarb v. State,

125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d), because juries are “‘entitled

to know all relevant surrounding facts and circumstances of the charged offense; an offense is not

tried in a vacuum,’” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Moreno v.

State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). See also id. (explaining that “same transaction

contextual evidence may be admissible where ‘several crimes are intermixed, or blended with one

another, or connected so that they form an indivisible criminal transaction, and full proof by

testimony, . . ., of any one of them cannot be given without showing the others’” (quoting Rogers

v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993))). “[S]ame-transaction contextual evidence is

admissible only when the offense would make little or no sense without also bringing in that

evidence.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). “[I]f ‘the extraneous

offense evidence is shown to be a necessarily related circumstance of the defendant’s flight, it

may be admitted to the jury’” because evidence of “‘[f]light is admissible as a circumstance from

which an inference of guilt may be drawn.’” Id. at 470 (quoting Alba v. State, 905 S.W.2d 581, 586

(Tex. Crim. App. 1995)).



                                                 11
               The evidence presented during the trial established that Fruge displayed his gun

and forced Harris to drive him away from the shopping center immediately after he shot Officer

Granderson and that Fruge did those acts in order to get away from the scenes of his crimes after

attempting to evade the police and after abandoning the vehicle that he was driving. See id.

(explaining that trial court did not abuse its discretion by admitting evidence of extraneous offense

in which defendant stole car during “flight from the instant offense as he attempted to travel to his

mother’s home”); Alba, 905 S.W.2d at 586 (determining that trial court did not abuse its discretion

by admitting evidence showing that defendant pulled gun on individual and demanded that he drive

him somewhere when evidence showed that extraneous offense occurred within one hour of murder

and after defendant had abandoned his own car). Accordingly, we must conclude that the district

court did not abuse its discretion by overruling Fruge’s objection under Rule 404 to the admission

of evidence regarding his encounter with Harris.3

               In his second issue, Fruge also contends that the district court erred by admitting the

evidence over his objection under Rule 403 because the extraneous-offense evidence “was more

prejudicial than probative.” See Tex. R. Evid. 403.

               Under Rule 403, a trial “court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Id.




       3
         In his brief, Fruge notes that there was no jury instruction setting out the permissible uses
for extraneous-offense evidence. Although Fruge does not present this as an issue on appeal, we
note that “a limiting instruction is not required when evidence is admitted as same-transaction
contextual evidence.” See Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011).

                                                 12
(emphasis added). “Under Rule 403, it is presumed that the probative value of relevant evidence

exceeds any danger of unfair prejudice. The rule envisions exclusion of 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) (footnotes and internal quotation

marks omitted). Accordingly, “the plain language of Rule 403 does not allow a trial court to exclude

otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against

a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811

(Tex. Crim. App. 2013) (internal citation omitted).

               When performing a 403 analysis, courts should balance the following factors:


       (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.


Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see

Davis, 329 S.W.3d at 806 (explaining that “probative value” refers to how strongly evidence

makes existence of fact more or less probable and to how much proponent needs evidence and that

“unfair prejudice” refers to how likely it is that evidence might result in decision made on improper

basis, including emotional one). Although appellate courts review a trial court’s ruling on Rule 403

grounds for an abuse of discretion, see Pawlak, 420 S.W.3d at 810, reviewing courts should bear in

mind that trial courts are given “an especially high level of deference” for Rule 403 determinations,

see United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).

                                                 13
                 As set out above, the evidence was relevant to the issue of whether Fruge committed

the charged offenses because it constituted evidence of Fruge’s flight from the scenes of the crimes

and of his intent to evade the police. In fact, according to Harris’s testimony, Fruge admitted that

he had just done something that he should not have and, for that reason, needed to get out of the area.

                 Regarding the State’s need for the evidence, other evidence presented during the trial

established that Fruge committed the alleged crimes. Moreover, other witnesses testified that prior

to Fruge finding Harris, Fruge attempted to evade the police by driving from the scene, by shooting

at the police, and by running from the police on foot. Accordingly, the State’s need for the evidence

was not great.

                 Although the evidence regarding the extraneous offense and the extension of the

criminal episode could potentially have created a negative impression on the jury, we do not believe

that the evidence had much, if any, tendency to suggest a conviction on an improper basis. The

evidence regarding the charged offenses demonstrated conduct that was much more serious and

dangerous than the extraneous offense. For example, although Harris testified that Fruge displayed

the gun, he did not testify that Fruge pointed it at him or shot the gun. Moreover, Harris’s testimony

was not emotional in nature and simply related the events that occurred. See Gigliobianco, 210 S.W.3d

at 641 (stating that evidence might encourage decision on improper basis if it arouses jury’s sympathy

or hostility without regard to logical probative force of evidence). Similarly, there was nothing graphic

or provocative about the seven photos that were admitted as exhibits. In addition, the evidence

pertaining to the extraneous offense was not confusing or technical in nature, see id. (explaining that

scientific evidence is type of evidence that might mislead jury not properly equipped to consider



                                                   14
probative value), and it helped to fill in the gap in time between when Fruge shot Officer Granderson

and when Fruge was arrested.

                Finally, the evidence did not consume an inordinate amount of time or repeat

evidence that had already been admitted. Although the extraneous offense was briefly mentioned

by another witness, the bulk of the evidence regarding Fruge’s conduct between the shooting of

Officer Granderson and Fruge’s arrest was presented through Harris’s testimony. In addition, as

mentioned above, the State introduced seven photos pertaining to the extraneous offense, but

the State introduced hundreds of photos relating to the charged offenses as exhibits. Similarly, the

guilt or innocence phase of the trial was held over four days and spans approximately six

hundred record pages, but Harris’s testimony is only sixteen pages long. Compare Schiele v. State,

No. 01-13-00299-CR, 2015 Tex. App. LEXIS 1646, at *19-20, *21-22 (Tex. App.—Houston

[1st Dist.] Feb. 19, 2015, pet. ref’d) (mem. op., not designated for publication) (determining that fact

that evidence in dispute spanned 50 pages of 118-page record and was composed of video recordings

lasting approximately 30 minutes weighed against admissibility because evidence consumed “not

insignificant” amount of time but still finding that trial court did not abuse its discretion where

half of factors relevant to 403 analysis weighed in favor of admissibility), and McGregor v. State,

394 S.W.3d 90, 121-22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (concluding that fact that

evidence of extraneous offenses constituted one third of trial weighed against admissibility but

upholding trial court’s decision to admit evidence), with Russell v. State, 113 S.W.3d 530, 544-49

(Tex. App.—Fort Worth 2003, pet. ref’d) (determining that trial court erred by admitting evidence

of extraneous offenses where evidence was 30% of testimony, where State’s need for evidence was

low, and where evidence of extraneous offense was “more heinous” than charged offense).

                                                  15
               In light of the factors above, of our standard of review, and of the presumptions in

favor of admissibility, we cannot conclude that the district court abused its discretion by overruling

Fruge’s Rule 403 objection.

               For the reasons previously given, we overrule Fruge’s second issue on appeal.


Clerical Error in Judgment

               Although Fruge does not raise this on appeal, we observe that the judgment of

conviction for the aggravated assault in trial court cause number D-1-DC-13-200257 contains

a clerical error. As mentioned above, the indictment for that offense alleged that Fruge committed

aggravated assault against Officer Granderson knowing that Officer Granderson was a peace

officer. That offense is governed by subsection 22.02(b)(2)(B) of the Penal Code; however, the

judgment in that case reflects that the conviction was under subsection 22.02(b)(2)(A) of the

Penal Code, which applies to aggravated assaults committed by a public servant. Compare Tex.

Penal Code § 22.02(b)(2)(B), with id. § 22.02(b)(2)(A). This Court has the authority to modify

incorrect judgments when it has the information necessary to do so. See Tex. R. App. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment

of conviction in cause number D-1-DC-13-200257 to reflect that Fruge was convicted under subsection

22.02(b)(2)(B) of the Penal Code.


                                          CONCLUSION

               Having modified the judgment of conviction in cause number D-1-DC-13-200257

and having overruled Fruge’s issues on appeal, we affirm that judgment of conviction as modified.

Having overruled Fruge’s issues on appeal, we affirm the remaining judgments of conviction.

                                                 16
                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

D-1-DC-13-200256: Affirmed
D-1-DC-13-200257: Modified and, as Modified, Affirmed
D-1-DC-13-200259: Affirmed

Filed: December 3, 2015

Do Not Publish




                                            17
