             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00132-CR
     ___________________________

       CLIFFORD BELL, Appellant

                      V.

            The State of Texas


  On Appeal from the 367th District Court
          Denton County, Texas
      Trial Court No. F15-1523-367


Before Sudderth, C.J.; Gabriel and Pittman, JJ.
 Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

      In mid-February 2015, Appellant Clifford Bell abandoned two bags of unpaid-

for steaks in the vestibule between Wal-Mart’s inner and outer doors, walked away

before Wal-Mart’s asset-protection agent could talk with him, and confessed the theft

to a police officer a few minutes later. Two years later, a jury convicted him of theft

in an amount less than $1,500, with two prior theft convictions, see Act of May 29,

2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3309, 3310 (amended

2015, 2017) (current version at Tex. Penal Code Ann. § 31.03,1 and the trial court

sentenced him to two years’ confinement in state jail. See Tex. Penal Code Ann.

§ 12.35 (providing that state jail felony punishment range is not more than two years

or less than 180 days and up to a $10,000 fine).

      In a single point, Bell complains that the trial court erred by admitting two

additional, non-jurisdictional extraneous prior theft convictions during the guilt-

innocence phase of his trial. Bell argues that these convictions were not admissible

under rule of evidence 404(b)2 to show intent because he never raised lack of intent as


      1
         Former penal code section 31.03(e)(4)(D) provided that an offense was a state
jail felony if the value of the stolen property was less than $1,500 and the defendant
had been previously convicted two or more times of any grade of theft. Act of May
29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. at 3310 (amended
2015, 2017). Bell stipulated to the jurisdictional prior theft convictions listed in the
indictment.
      2
       Rule of evidence 404(b) states, in pertinent part, that evidence of a crime is not
admissible to prove the conformity of a person’s character therewith but “may be
admissible for another purpose, such as proving motive, opportunity, intent,

                                           2
a defensive theory and that, contrary to rule of evidence 403’s balancing test,3 they “at

best[] marginally added to already voluminous evidence of intent.”

      Assuming, without deciding, that the trial court erred by admitting the two

extraneous theft convictions, we conclude that on this record, any such error was

harmless. See Tex. R. App. P. 44.2(b).4

      The jury heard from two Wal-Mart asset-protection employees and the

arresting police officer, among others, and viewed the store’s surveillance footage

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Tex.
R. Evid. 404(b).
      3
       Rule of evidence 403 states that a 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. Tex. R. Evid. 403.
      4
        Generally, the erroneous admission of evidence is nonconstitutional error
governed by rule 44.2(b) if the trial court’s ruling merely offends the rules of evidence.
See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Under rule of
appellate procedure 44.2(b), we disregard the error if it did not affect the appellant’s
substantial rights. Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g). A substantial right is affected when the error had 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) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66
S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we
have “fair assurance that the error did not influence the jury, or had but a slight
effect.” Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998). In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the nature of
the evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions,
the State’s theory and any defensive theories, whether the State emphasized the error,
closing arguments, and even voir dire, if applicable. Id. at 355–56.


                                            3
showing Bell’s progress through the store from entry to exit except for the act of

concealment, which occurred in the menswear department. One of the Wal-Mart

employees testified that he saw Bell walk through the menswear department—an area

frequented by shoplifters because of its lack of surveillance cameras near the changing

rooms—with a cart full of steaks worth $156.33 and then pull out two empty Wal-

Mart bags, put the steaks in the bags, and place the bags back in the cart. Bell next

headed to the front of the store, but when he arrived in the cash register area—an

opportunity to pay for the merchandise—he removed both bags, ditched the cart, and

walked to the other side of the store. Bell then crossed the “last point of sale,” i.e.,

the first set of doors, with the bags of steaks. No one from Wal-Mart gave Bell

consent to leave the store without paying for the steaks.

      When Wal-Mart’s asset-protection employees attempted to approach Bell in the

vestibule area between the first and second set of the store’s doors, he dropped the

bags, told them that he had not done anything, and walked out of the store. One of

the employees called the police while the other kept his eyes on Bell from the parking

lot. A nearby patrol officer responded to the call, identified Bell based on the

description of his clothing, stopped him, and asked him what happened at Wal-Mart.

Bell told her that he had “messed up” and that he had taken some steaks because he




                                           4
needed the money and was going to sell them.5 Bell was arrested and transported to

jail; when he was searched at the jail, police found a single penny on him and no other

means to pay for the steaks. Only after all of the above evidence was admitted did the

prosecutor seek and receive permission to use two of Bell’s prior theft convictions

under rule of evidence 404(b), arguing that Bell had put his intent into issue by trying

to show that he did not have the intent to deprive Wal-Mart of the steaks based on his

dropping the bags before he left the store.

       The overwhelming evidence of Bell’s guilt set out above, the lack of any

demonstrable prosecutorial misbehavior during voir dire or trial,6 and the extraneous-

offense limiting instruction in the jury charge lead us to conclude that any error in the

admission of the two extraneous offenses had no substantial or injurious effect on the

jury’s verdict and could not have affected Bell’s substantial rights. See King, 953

S.W.2d at 271. Thus, we disregard the error, see Tex. R. App. P. 44.2(b), overrule

Bell’s single point, and affirm the trial court’s judgment.


       5
        The trial court denied Bell’s motion to suppress his statements made to the
officer after he told her that he messed up. Bell does not appeal the denial of his
motion to suppress.
       6
        The prosecutor argued during closing arguments that the evidence showed
beyond all doubt—based on 90% of the offense having been caught on videotape and
Bell’s admission of guilt to the officer—that Bell had stolen steaks from Wal-Mart by
exercising control over them in the store, taking them past the cash registers without
paying, and taking them into the store’s vestibule without the consent of store
employees. The prosecutor mentioned the extraneous offenses during the first part
of his closing argument, but he spent more time emphasizing the evidence that was
directly related to the instant offense.

                                              5
                                  /s/ Mark Pittman
                                  Mark Pittman
                                  Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 31, 2019




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