                            OOS -/5
                CAUSE       NO..    PD-0005-15



OR           COURT     OF
                             IN     THE
                             CRIMINAL          APPEALS
                            OF     TEXAS

                                                                            «AL APPEALS

                 GARY EUAN MATTHEWS,                                 MAR 20 2015
                            Petitioner,

                                   V.                            Abe! Acosta, Clerk
                 THE    STATE           OF    TEXAS




            Petition    in       Cause        No.    F4 67 39
     from 'the 413th Judicial District Court of    FILED IN
                Don nson County, Texas     COURT OF CRIMINAL APPEALS
                                  and
              Cause    No.       10-13-00401-CR
                                                                   MAR 20 2015
          in the Court, of. Appeals for the
          Tenth Supreme Oudicial District
                  of Texas at iiiaca                             Abel Acosta, Clerk



                      PRO    SE     PETITION
              FOR. DISCRETIONARY                   REVIEW




                 GARY       EUAN        MATTHEWS
                 TDCJ-CID*              01BB3270
           WILLIAM P.        CLEMENTS,              DR.   UNIT
                       9601        SPUR      591
                AMARILLO.,          TEXAS      79107
                 PETITIONER,                 PRO    SE




               ORAL    ARGUMENT              REQUESTED
                                      TABLE     OF       CONTENTS


                                                                                       PAGE


Index    of    Authorities......                                     :                      ii

 Statement Regarding             Oral Argument...                                            1

 Statement      of    the    Case ......                                                     2


Statement of Procedural History.......                                                       2

Ground    for    Review. .                                                                   2

                                                    lo.

     THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT'S COM
     MENTS TO THE 3UR0RS ON THE EVIDENCE IN THE TRIAL AT THE CLOSE OF
     THE STSTE'S CASE-IN-CHIEF DID NOT DENY PETITIONER HIS RIGHT TO DUE
     PROCESS OF LAW.


Reason   for    Re view                                                                          2

     1 . In holding that the Trial Court's comments to the jurors on the
         evidence in the trial at the close of the State's case-in-chief
         did not deny Petitioner his right to due process of law, the
         court of appeals decided,, an important question of State and Fe
         deral law in conflict with the applicable decisions of the Court
         of Criminal Appeals and the United States Supreme Court.-

 Prayer for Relief...                                                                        6

 Certificate         of   Service                                                      ••    8

 Appendix

 Opinion of the Tenth Court of Appeals                                                       9

                             Opinion by    justice REX          D.   DAVIS
                     Panel    consisted    of       Chief   3usti.ce TOM     GRAY,
                Justice       REX D. DAVIS,          and Justice         AL SCOGGINS




                                                -    l
                                        INDEX   OF   AUTHORITIES


                                                                                           PAGE


CASE    LAW


Blue    v•... State                                                                           6
        41     S.W.3d 129,        131     (Tex.Crim.App.     2000)(plurality op.)

Brown    v .    State...........                                                              4
        122 S.W.3d 794,             798 (Tex .Crim.App.          2003)

Brown    v.     State                                                                         4
        541     U.S.    938, 124 S.Ct. 1678, 158 L.Ed.2d 359                  (2004)

Cain    v .    State . •                                                                      5
        947 S.W.2d 262,             264 (Tex .Crim.App. 1997)

Gary Evan Matthews v. The State of Texas                                                    3,9
        Tex.     App.      No.   10-13-00401-CR

Kirby v.        United States .                                                               3
        174 U.S.        47,      55, 19 S.Ct.        574, 577,    43 L.Ed.   B90 (     )

Lagronev. State                     ...                                  ...                  4
     84 Tex.Crim.                609, 615-616,        209 S.W. 411, 415 (1919)

Marin    v.     State                                                                         5
        851     S.W.2d 275,         279    (Tex .Crim.App. 1993)

Sa 1 dano      v. ••State.'-.        '                                                        5
        70 S.W.3d 873,             887-88 (Tex .Crim.App.          2002)

STATUTES        AND    RULES


Tex.    Code Crim.          Proc.    Art.    2.03(b)                                          4

Tex.    Code Crim.          Proc.    Art.    38.03                                            4

Tex.    Code Crim.          Proc.    Art.    38.05..                                          4

Tex.    R. App. Proc. 33.1(a)                                                                 5




                                                     li
                       CAUSE        NO.       PD-0005-15


                                       IN     THE
                    COURT        OF CRIMINAL APPEALS
                                    OF       TEXAS




                          GARY EVAN MATTHEWS,
                                   Petitioner,

                                             V.


                          THE     STATE           OF TEXAS




                   Petition       in     Cause         No.    F46739
            from the 413th Judicial District Court of
                      Johnson County, Texas
                                         and.
                    Cause        No . '1 0-1 '3-00401 -ER
                 in th'e Court of Appeals for the
                 Tenth Supreme           Oudicial District
                            of    Texas           at   Waco




                            PRO     SE       PETITION
                    FOR    DISCRETIONARY                 REVIEW




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

     COMES NOW GARY EVAN MATTHEWS, Petitioner pro se, and re
spectfully petitions the Eaurt to review the judgement affirming

his conviction for the offense of murder in Cause No..F46739.

                STATEMENT    REGARDING ORAL                   ARGUMENT

     The ground for review set forth in this petition concerns

conflicting opinions of different courts of appeals on the same

point of law, and oral argument would be helpful to the Court

in distinguishing these authorities and arriving at the approach


                                         1
that    is    consistent             with    the    opinions        of    this   Court.

                                           STATEMENT      OF   THE       CASE


        The Petitioner                was. convicted by a jury of the offense of

murder       after       a    plea    of not       guilty;     the       punishment was         assessed

by the jury at thirty-eight (38)                           years confinement in the Texas

Department          of       Criminal       Dustice      - Correctional            Institutions         Divi

sion.    This       conviction was             affirmed        by    the    Court    of   Appeals       for

the    Tenth    Supreme          Judicial          District     at       Waco,   Texas    on   the 11th

day    of December,             2014.

                                STATEMENT          OF   PROCEDURAL         HISTORY


        The    Court of          Appeals       rendered        its       opinion    affirming      Peti

tioner's       conviction             on    December 11,        2014.       No   motion    for    rehearing

was    filed by          Petitioner.          A motion for an              extension of time            to

file    pro    se    petition for discretionary review and motion to                                     sus

pend T.R.A.P.                9.3(b)    were granted on              January 8,       2015.     This peti

tion uill be             considered timely filed if                       done so    on   or    before

March 13,       2015.

                                             GROUND      FOR   REVIEW


                THE COURT OF APPEALS                     ERRED IN HOLDING THAT THE
        TRIAL    COURT'S COMMENTS TO                     THE JURORS 0N THE EVIDENCE
        IN THE TRIAL             AT THE CLOSE            OF THE STATE«S CASE-TN-CHIEF
        DID NOT DENY             PETITIONER'S            RIGHT TO DUE PROCESS OF LAW.

                                            REASONS      FOR   REVIEW


        At trial,             at the end of the second day of testimony,                               the

State concluded                its case-in-chief.              Immediately after               that,    but

before the defense began its testimony,                                   the Trial Court made

the following comment to the jury:




                                                         2.
        THE COURT:          Ladies and        gentlemen,           the State has rested,

        which means          they've completed               their       Case-in-Chief,

        about    25   minutes       faster       than    I    thought          they would     so

        they did a good job. And                     what the next thing - there's

        some things that the Court has to do with the attorneys

        between       now    and   when   I    can     ask    the       Defense      what   their


        next move is going to                 be.,    so I will excuse you for

        today. But I tell you that the case is on the schedule

        that I thought it would                  be, and we're in good shape,

        So if you'll accompany the                     bali   ff    out    of    the   courtroom.


(R.R.    Vol    B, p. 251          Ins 17-25 and p             252       Ins 1-2) .

        This comment to the jury by the Trial Court, the ultimate

authority figure in the courtroom, i mpaired the presumption of

innocence       and    rendered       Petitioner's            trial       arbitrary         and fundament-

ally unfair in violation of his righ t                             to    Due    Process      of   Law.


         The presumption of innocence is a fundamental principle

of American Jurisprudence.                    The Unite d States Supreme Court held

that :


         "The presumption of innocence o f an accused attends him

         throughout trial and his relation to every fact that

         must be established in order to prove his guilt beyond

         a   reasonable       doubt."


Kirby V. United States, 174 U.S. 47, 55, 19 S.Ct. 574,577, 43

L.Ed.        890 (      ).

         The Supreme Court has never waivered from this foundational

principle, and the State of Texas is                               ine   of    the   few    states   who
have    codified          this       presumption            of    i nnocence.         See    Article      38.03,

Texas    Code       of    Criminal Procedure,                     a nd    in    particular Article              2.03(b),

which    reads       in    pertinent          part:

                                     '       "Neglect of Duty"

        "It is the duty of the Trial Court,                                     the attorney repre-

        sneting the             accused,         the    attorney representing the

        State       and    all       peace   officers             to     conduct      themselves...

        as    not to       impair the            presumption of innocence."

Furthermore,             Article         38.05    of    the       Texas        Code   of Criminal         Proce

dure    provides          that:

        "'[I-]n ruling upon the admissibility of evidence,                                         the

        judge shall not discuss                        or    comment upon             the weight

        of the       same       or    its    bearing         in    the     case,      but shall      sim

        ply    decide          whether or         not       it is admissible;                nor shall

        he,    at    any stage of the proceeding previous to the

        return of the verdict,                     make          any remark calculated               to

        convey to the jury his opinion of the ease."

Stated differently,                   Due    Process         of    Law requires a neutral                  and

detached judge. This Court has                              previously held that this fact

is   critical        to    the       function      of       a fair        and    impartial trial           be

cause    "[j]urors are prone to seize with alacrity upon any con

duct or       language of the trial judge which they may interpret

as shedding light upon his view of the weight of the evidence,

or the merits             of    the      issues    involved."              Brown v.         State , 12 2 S .W. 3 d

794, 798' (Tex.Crim.App. 2003)                          cert,          denied,        541 U.S. 938, 124

S.Ct. 1678, 158 L.Ed.2d 359 (2004)(quoting Lagrone v. State,
84 Tex.Crim. 609,   615-616, 209 S.W. 411., 415 (1919)). Stated

differently,   members of a jury have a tendency or inclination

to grasp with cheerful readiness anything the judge says or does

as an opinion on the proceedings. Therefore, instead of arguing

about what exactly the trial judge was commenting on when he

stated that the State   "did a good job," the Court of   Appeals

should have followed presedent set forth by both this Court and

the United States Supreme Court and ruled the comment harmful

in and of itself given the fact that it was totally unnecessary.

     Not only did the Court of Appeals err in finding this im

proper comment harmless, but they also ruled that no error was

preserved for appellate review because Petitioner's trial coun

sel failed to object to the comment when it was made.

     Asa general rule, in order to preserve a complaint for

review on appeal, the claimed error must have been presented

in the trial court, thereby, providing the trial court the op

portunity to correct any error during the course of trial. See

Tex. R. App. Proc. 33.1(a). This Court has held that "our system

may be thought to contain rules of three distinct kinds: (1)
absolute requirements and prohibitions; (2) rights of•litigants

which must be implemented by the system unless expressly waived;

and (3) rights of litigants which are to be implemented upon

request." Marin V. State, 851 S.W.2d 275, 279 (Tex .Crim.App.
1993), modified in part by Cain v. State, 947 S.W. 2d 262, 264
(Tex.Crim.App, 1997); Saldano V. State, 70 S.W. 3d 873, 8B7-8B
•(Tex.Crim.App.. 2002) . An accused's right to Due Process of Law


                                -   5.
is    considered so          fundamental          to    the       proper functioning of our

adjudicatory          system       that    it    cannot       be    forfeited          and      is   not     extin

guished       by   inaction        alone.       Blue v.       State,          41    S.W.3d 129,        131

(Tex .Crim .App. 2000)(plurality op.). Instead, for an accused

to lose such a fundamental right,                            he or she must expressly relin

quish       that   right.     Id.

        In the       case    at    bar,    the Trial Court's improper and                              completely

unnecessary          comment       on    the    proceedings             violated       at least         two

of    the    Petitioner's          fundamental          rights;          his       right   to    due    pro

cess    of    law and       his    right to       the    presumption                of innocence.            A

thorough review             of the       trial records             will       reveal that at            no       time

did    the    Petitioner expressly relinquish either of these rights.

As    such,    his    right       to    have    this    complaint             of fundamental            error

reviewed on appeal cannot be waived simply because his. trial

counsel failed to object to                      the comment at                the time it           was made.

        This       Court should grant review of the                            Court of Appeals                  deci

sion    in    this    case    because          failure       to    do    so    will    only      encourage

other courts of appeal to forego reviewing claims for violations

of fundamental rights simply because they were'nt objected to

at trial. This in turn would render arbitrary and                                          accused's right

to    meaningful review on                appeal.

                                          PRAYER       FOR    RELIEF

        For the reasons herein alleged,                            Petitioner was denied a

fair trial and due process of law in Cause No. F46739. There

fore,       Petitioner prays this Court, grant this petition ;and , upon

reviewing the judgement entered by the Tenth Court of Appeals,
reverse   this   cause   and   remand   it    for      a   new    trial.


                                                            Respectfully      submitted,



                                                                           r^<0%#jh<^
                                                            /s/
                                                            GARY
                                                                 •£3L
                                                                    EVAN   MATTHEWS
                                                            TDCJ-EID#      01 8832.70
                                                            William P. Clements, Jr.       Unit
                                                            9 601 Spur 591
                                                            Amarillo, Texas 79107
                                                            PETITIONER,      PRO SE




                                             7 .   -
                                   CERTIFICATE   OF   SERVICE

         This is to certify that copies of the above-entitled and

numbered petition for review have been served on both the District

Attorney of Johnson County, Texas, and the State Prosecuting
Attorney, by delivery of a true copy to them, by mail, by deposit
ing same, postpaid, in an official depository under the care
and custody of the United States Postal Service on the 1.2th day
of March, 2015, enclosed in a wrapper properly addressed as fol
lows :


         HONORABLE       DALE HANNA
         Johnson County District Attorney
         Guinn    Justice       Center
         204    South    Buffalo
         Cleburne,       Texas    76033

         HONORABLE LISA C.          McMINN
         State Prosecuting Attorney
         P.O.    Box    13046
         Austin,       Texas    78711-3406




                                                         Petitioner,   pro   se
                           APPENDIX




COPY OF   OPINION   FROM THE TENTH COURT          OF APPEALS      IN

    GARY   EVAN   MATTHEWS        V.   THE STATE OF TEXAS

             TEX.   APP.   NO..    1 0-1 3-00401-CR

              DELIVERED DECEMBER 11,            2014

           'OPINION BY     JUSTICE     REX D.    DAVIS

    PANEL CONSISTED OF CHIEF JUSTICE TOM GRAY,
   JUSTICE   REX D.   DAVIS,      AND JUSTICE     AL   SCOGGINS
                                      IN THE
                        TENTH COURT OF APPEALS


                               No. 10-13-00401-CR


GARY EVAN MATTHEWS,
                                                          Appellant
v.




THE STATE OF TEXAS,
                                                          Appellee




                          From the 413th District Court
                             Johnson County, Texas
                              Trial Court No. F46739



                         MEMORANDUM OPINION


      A jury found Appellant Gary Evan Matthews guilty of murder and assessed his
punishment at thirty-eight years' imprisonment and a $10,000 fine. This appeal ensued.
                                     Issue No. 1


      In his first issue, Matthews contends that the trial court erred in admitting

testimony of other wrongs or acts over his objection because (1) the State failed to
provide proper notice under Rule of Evidence 404(b), (2) the probative value of the
testimony was outweighed by its prejudicial effect, and (3) the testimony constituted

hearsay.

Background

        In a hearing outside the presence of the jury, Andy Smithtestified as follows:

                    Q.   [By Prosecutor] All right. And did you, in fact, see Mr.
        Matthews on August 19th, 2012?

                    A.   Yes, I did.

                    Q.   And can you tell me about your initial interaction with him
        that day?

                    A.   He approached me, was asking to borrow a pole saw to trim
        a tree in his property. I was mowing Donna's front yard at the time. And
        I did not allow him to take my pole saw. I asked him, "What do you
        need?" I offered to go ahead and cut the branches myself. It was there in
        the front yard. It was just a few branches.

                    Q.   All right. And did the two of you have a conversation?

              A.      Yes, we did. After cutting the branches, yeah, we did have a
        conversation, a good, at least 20 minutes, probably.

                    Q.   And what did Gary say to you during that conversation?

                    A.   Um, I remember that - - I think he mentioned starting off
        was there was a wood carving statue, I don't know, dead tree stump in the
        front yard that he said he - - that this character, whatever it was, was
        overlooking the neighborhood just in case something went down. That he
        had lots of guns and ammunition, that - - enough to take care of any
        situation that might arise.

                    Q.   All right. Did he say anything else to you?

                    A.   Yeah, there were other conversations. He mentioned that he
        was a three-time Purple Heart winner during Vietnam. That he - - there
        was conversation about being a European marshal [sic] arts champion.
        That I believe it was Chuck Norris or somebody like that came to visit him


Matthews v. State                                                                      Page 2
       in a tournament and that they hung out. I remember some of those
       conversations.


                Q.      Okay.

                A.      He also mentioned some other conversations that - - kind of
       involving the weapons and the guns, that he had altered some of those to
       make them more powerful.

                Q.      Okay. And did he say anything else?

              A.    Yes, there were some that kind of evolved around that; he
        mentioned that in this - - he said this in a few other conversations prior to
        this, but I remember that day that he did mention that he could, indeed,
        kill somebody and claim self-defense if - - and he could get away with it
        if that other party had something in their hands that could be construed
        as, you know, a lethal weapon or whatever. He described it like in
        shooting pool, if the other person had a cue stick or something of that
        nature in their hand, that he could, indeed, kill them with his bare hands,
        with his marshal [sic] arts background or with any other device, and get
        away with it.

                Q.      And get away with it?

                A.      And get away with it, yes.

                Q.      And why is it that you would not let him use the pole saw
        that day himself?

                A.      Um, well, he approached me. He had - - in his hand, he
        had alcohol and he was - - I could tell he was intoxicated or at least
        partially intoxicated. And another reason, I don't like people using my
        equipment.

                Q.      Yes, sir.

              A.     I don't just give it to anybody. But I thought I could
        probably just take care ofit and be done with it and keep peace and move
        on.



               Q.     Yes, sir. And approximately what time that day on August
        19th, 2012, did he say these things to you?


Matthews v. State                                                                       PaSe 3



                                                                                                 i
                A.   He first approached me approximately 4:00 in the afternoon.

                Q.   Okay. And was this, in fact, the same day that Bradley Kidd
        was



                A.   Yes.


                Q.   -- shot?

                A.   Yes, it was.

        Matthews objected to this testimony, arguing that the State failed to give notice

under Rule 404(b) of its intent to offer the evidence; that the testimony constituted

inadmissible extraneous offenses under Rule 404(b); and that the prejudicial effect of the

testimony outweighed its probative value. The trial court overruled the objections, and

Smith testified accordingly on direct examination before the jury.

        Subsequently, on redirect examination of Smith, the following exchange

occurred:


                Q.   [By Prosecutor] And, again, why did you give this second
        statement?


                A.   Because I just felt like I -- I'd left out a lot of stuff. I was --
        the whole thing, just shocking, it was devastating.

                Q.   Right.

                A.   And I don't know. I had a hard time thinking about what
        I'm going to write down. This just happened.

                Q.   Okay. And from August 19th, 2012, to today, has your
        version of events as what happened ever changed?

                A.   Has it?


                Q.   Has it ever changed?


Matthews v. State                                                                          Pa8e 4
                A.     No.


              Q.    And in regard to your second statement, there was some talk
        about what was or wasn't in there, but in your second statement, you do
        write "I've been in several conversations - -"


                       [Defense Counsel]: Objection, Judge. That's improper for
        him to - - he's testifying. It's not a question.

                        [Prosecutor]: I'm reading what's in the second statement. I
        believe it's already been explored in great detail.



                      [Defense Counsel]: He's reading from someone's statement.
        That's not a question. He's testifying.

                       THE COURT: Were you going to ask a question?

                       [Prosecutor]:   Yes, sir, I'm going to say, "This statement
        that's made in your statement, is that correct? Did you put that in your
        second statement?"          Because that's what was examined in cross-
        examination.


                       THE COURT: The objection is overruled.

                Q.     (BY [Prosecutor]) Sir, in your second statement, did you say,
        "I've been in several - -"


                    [Defense Counsel]: Judge, I'm going to object again. He's
        reading from - - that's hearsay. It's not - - I'm using it for impeachment.
        He's testifying and bolstering what someone's written statement is. That's
        improper. I object to it.

                       THE COURT: Overruled.


                Q.     (BY [Prosecutor]) Sir, again, in your second statement, did
        you say "I'vebeen in several conversations withGary prior and he always
        seemed fascinated with altercations - -"

                     [Defense Counsel]: Judge, again, I'm going to object again.
        That's an improper way to examine the witness.


Matthews v. State                                                                      Pa8e 5
                         THE COURT: Overrule.


                         [Defense Counsel]: Can we approach the witness, Judge --

                         THE COURT: No.


                         [Defense Counsel]: -- I mean the bench.

                         THE COURT: No. Overrule. Sit down.


              Q.    (BY [Prosecutor]) Sir, in your second statement, did you say,
        "I have been in several conversations with Gary prior and he always
        seemed fascinated with altercations where he could kill someone"?


                         [Defense Counsel]: Again, Judge, I'm going to object for the
        record. This is a violation of the Motion in Limine. We're not having a
        hearing. This is an improper way to - - it's hearsay, it's bolstering, Your
        Honor, and it's - - he's - - the Counsel's testifying. So I'm going to object
        to this line of questioning.

                         THE COURT: I'll overrule it. You've made that objection
        and I've overruled that objection, so the record is clear on that point.

                    Q.   (BY [Prosecutor]) Sir, again, in your second statement, did
        you say "I've been in several conversations with Gary prior and he always
        seemed fascinated with altercations where he could kill someone and get
        away with it"? Did you say that, sir?

                    A.   Yes, sir.

              Q.   Did you also say, "He mentioned that if the other person
        had a weapon of any kind in their hands or possession he could kill them
        with his bare hands"?


                         [Defense Counsel]: Objection, leading.

                         THE COURT: Overruled.


              Q.     Did he also say, sir, "He mentioned that if the other person
        had a weapon of any kind in their hand or possession he could kill them
        with his bare hand because he's an expert level in marshal [sic] arts and
        then he could claim that it was in self-defense"?



Matthews v. State                                                                       Page 6
                         [Defense Counsel]: Objection, leading.

                    A.   Yes, sir.

Rule 404(b) Notice

        We begin with Matthews's complaint that the trial court erred in admitting

testimony of other wrongs or acts because the State failed to provide proper notice

under Rule of Evidence 404(b). More specifically, Matthews argues that the statements

that


        he had lots of guns and ammunition, enough to take care of any situation
        that might arise, that [he] mentioned that he was a three-time Purple
        Heart winner during Vietnam, that [he] was a European martial arts
        champion, that he hung out with Chuck Norris or somebody like that who
        came to visit him in a tournament, and that [he] always seemed fascinated
        with altercations where he could kill someone and get away with it

were not contained in any of the State's notices of intent to introduce evidence of

extraneous matters; therefore, these statements were inadmissible.

        "Rule 404(b) literally conditions admissibility of other-crimes evidence on the

State's compliance with the notice provisions of Rule 404(b)." Hernandez v. State, 176

S.W.3d 821, 824 (Tex. Crim. App. 2005). Rule 404(b) provides:

        Evidence of other crimes, wrongs or acts is not admissible to prove the
        character of a person in order to show action in conformity therewith. It
        may, however, be admissible for other purposes, such as proof of motive,
        opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident, provided that upon timely request by the accused in a
        criminal case, reasonable notice is given in advance of trial of intent to
        introduce in the State's case-in-chief such evidence other than that arising
        in the same transaction.


Tex. R.Evid. 404(b).




Matthews v. State                                                                      page 7
         The purpose of Rule 404(b)'s notice requirement is to prevent surprise to the

defendant and apprise him of the evidence the State plans to introduce at trial. See

Hernandez, 176 S.W.3d at 823-24; Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App.

2001). The rule requires "reasonable" notice. Hayden, 66 S.W.3d at 272.

        On January 18, 2013, Matthews filed his "Request for Notice of Intent to Offer

Extraneous Conduct Under Rule 404(b) and Evidence of Conviction of an Extraneous

Crime or Bad Act Under Article 37.07." In response, the State filed its "Notice of Intent

to Introduce Evidence of Extraneous Matters" on September 9, 2013, which stated in

relevant part:

        3.    On or about August 19, 2012, the defendant began drinking beer at
        7:30am and continued until 7:45pm at his home in Johnson County, Texas.
        This was witnessed by ... Andy Smith ....



        10.         On or about August 19, 2012, the defendant stated to Andy Smith
        "in my house I have the ability to shot [sic] someone and get away with
        it". This occurred in Johnson County, Texas, and within hours of the
        defendant killing Kidd.



        17.   On or about March 1, 2007 to August 19, 2012, the defendant would
        almost daily threaten to kill ... Andy Smith in Johnson County, Texas.



        29.    On or about February 1, 2009, to August 19, 2012, the defendant
        stated to Andy Smith "In my house, I have the ability to shoot someone
        and get away with it". This occurred in Johnson County, Texas.

        On October 2, 2013, the State then filed its "1st Amended Notice of Intent to

Introduce Evidence of Extraneous Matters" and its "2nd Amended Notice of Intent to

Matthews v. State                                                                     Page 8
Introduce Evidence of Extraneous Matters."1 In the second amended notice, the State

repeated the list of relevant "evidence of extraneous matters" above and added:

         37.    From on or about August 1, 2010 to August 19, 2012, in Johnson
         County, Texas, the defendant told Andy Smith, on multiple occasions, that
         his house is the safest because of his weapons.

        38.    On or about August 1, 2012, in Johnson County, Texas, the
        defendant placed a carved wooden item on top of a partially cut down
        tree in his yard and told Andy Smith ... that this item watched over the
        neighborhood.

        39.    From on or about February 1, 2009 to August 19, 2012, in Johnson
        County, Texas, the defendant told Andy Smith, on multiple occasions, that
        if someone attacked him with a deadly weapon, he had the ability to kill
        that person with his bare hands and then claim the killing was in self-
        defense.




        41.   From on or about February 9, 2009 to August 19, 2012, in Johnson
        County, Texas, the defendant told Andy Smith, on multiple occasions, that
        he was an expert in martial arts and could kill a person with his bare
        hands.


        42.    From on or about February 9, 2009 to August 19, 2012, in Johnson
        County, Texas, the defendant told Andy Smith, on multiple occasions, that
        he has altered his firearms to make them more powerful.

        43.   That on or about July 1, 2012, in Johnson County, Texas, the
        defendant told Andy Smith that his [sic] has killed people in the past.

        First, the State's second amended notice of intent to introduce evidence of

extraneous matters did include notice of Smith's testimony that, during their

conversation on August 19, 2012, Matthews said that he had lots of guns and

ammunition—enough to take care of any situation that might arise. The State's second

1 Matthews did not argue in the trial court, nor does he argue in this Court, about the reasonableness of
the timing of the State's October 2, 2013 first and second amended notices of intent to introduce evidence
of extraneous offenses.

Matthews v. State                                                                                  Page 9
amended notice specifically states: "37. From on or about August 1, 2010 to August 19,

2012, in Johnson County, Texas, the defendant told Andy Smith, on multiple occasions,

that his house is the safest because of his weapons."

        Second, Matthews did not complain in the trial court that he was not provided

notice of Smith's testimony on redirect examination that he had said Matthews always

seemed fascinated with altercations where he could kill someone and get away with it.

Matthews cannot therefore complain about it on appeal. See Tex. R. App. P. 33.1(a);

Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994) (stating that trial objection must

comport with issue raised on appeal to preserve issue for review).

        Finally, to constitute an extraneous offense, the evidence must show a crime or

bad act and that the defendant was connected to it. Lockhart v. State, 847 S.W.2d 568, 573

(Tex. Crim. App. 1992). Smith's testimony that Matthews mentioned that he was a

three-time Purple Heart winner during Vietnam, that he was a European martial arts

champion, and that he hung out with Chuck Norris or somebody like that who came to

visit him in a tournament does not, on its face, show a crime or bad act. Rule 404(b)'s

notice requirement therefore does not apply to this evidence. See TEX. R. EviD. 404(b).

Rule 403


        We next turn to Matthews's argument that the trial court erred in admitting

testimony of other wrongs or acts because the probative value of the testimony was

outweighed by its prejudicial effect. To the extent Matthews is making a Rule 403

complaint about Smith's testimony on redirect examination, his complaint is not

preserved because he did not make the complaint as to Smith's testimony on redirect

Matthews v. State                                                                   Page 10
examination in the trial court. See Tex. R. App. P. 33.1(a); Lopez v. State, 200 S.W.3d 246,

251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).

        Under Rule 403, otherwise relevant evidence "may 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." Tex. R. Evid. 403.

        [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
        inherent probative force of the proffered 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. Of course,
        these factors may well blend together in practice.

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref'd) (quoting

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

We review the trial court's determination under Rule 403 for an abuse of discretion.

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

        Matthews's defense was that he shot Bradley Kidd in self-defense. Matthews's

intent was therefore a prominent issue in dispute at trial. The State had a need for

Smith's testimony regarding what Matthews said just hours before the killing because it

was probative on the issue of Matthews's intent to commit the charged offense,

especially because Smith claims that Matthews said he could kill someone, claim self-

defense, and get away with it. Furthermore, although the State acknowledges that


Matthews v. State                                                                     Page 11
some time was spent on developing this evidence, the testimony was limited to one

witness, and we do not believe that it could cause jury confusion or distraction or cause

the jury to give it 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 Smith's testimony and its

probative value.    Thus, the trial court did not abuse its discretion by overruling

Matthews's Rule 403 objection to Smith's testimony.

Hearsay

        Finally, we address Matthews's contention that the trial court erred in admitting

testimony of other wrongs or acts because the testimony constituted hearsay. Similarly

to his Rule 403 complaint, to the extent Matthews is making a hearsay complaint about

Smith's testimony other than his testimony on redirect examination, his complaintis not

preserved because he did not make the complaint as to any other portion of Smith's

testimony in the trial court. See Tex. R. App. P. 33.1(a); Thornton v. State, 994 S.W.2d 845,

853 (Tex. App.—Fort Worth 1999,pet. ref'd).

        Hearsay is not admissible except as provided by statute, by the evidentiaryrules,

or by other rules prescribed under statutory authority. Tex. R. Evid. 802. Hearsay is "a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). A

Matthews v. State                                                                     Page 12
statement is not hearsay, however, if "[t]he declarant testifies at the trial or hearing and

is subject to cross-examination concerning the statement," and the statement is

"consistent with the declarant's testimony and is offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive."

Tex. R. Evid. 801(e)(1)(B).

        During cross-examination of Smith, Matthews established that Smith did not

include in his written statement to police after the shooting everything that he was

testifying to at trial. For instance, Smith admitted that he did not include in his written

statement that Matthews had a wooden character in his front yard that was going to

protect the neighborhood. Smith also acknowledged that he did not include in his

written statement that Matthews had indicated that he had received three Purple Hearts

in Vietnam, was a friend of Chuck Norris's, was a martial-arts expert, and could kill

someone with his hands. Smith testified that he did not write down that Matthews said


that his house was the safest because of all the weapons he had inside, that Matthews

told him that he could kill someone and claim self-defense if the person had something

in his hands, or that Matthews said that he had the ability to alter weapons to make

them more powerful. The following exchange then occurred:

                    Q.   [By Defense Counsel] But you testified here in court today
        that's what he told you?

                    A.   Yes.


                    Q.   Is that right?

                    A.   Yes, sir.



Matthews v. State                                                                     Page 13
                Q.   And you think those are important statements in the context
        of this murder investigation; is that correct?

                    A.   It's what - - it's what happened so I do think it's important.

               Q.    Okay. But you didn't think it was important enough at the
        time, although you say you knew about it, to write it down to the police
        out there when Mr. Kidd was deceased and Gary Matthews was under
        arrest for murder. You didn't think that was relevant, didn't think it was
        important?

                    A.   I think it is important.

               Q.      But you didn't tell the police about it at that time. You
        didn't write it down in your statement?

                    A.   I did not write it down. I gave a verbal.

              Q.    They weren't rushing you, were they? I mean, they weren't
        rushing you. You had plenty of time. You could have said, "Hey, guys,
        I've got information - - "

                    A.   I've never done this before, so I felt rushed.

                    Q.   You --

                    A.   Can I --


             Q.     You felt rushed. It was 9:00. You had plenty of time, didn't
        you? Didn't you?

             A.    I guess. I mean, I don't know how much time - - I didn't
        know how long they would be there. I didn't know. I know what I was
        doing and what I was concerned about.

                    Q.   Okay.

        Based on the foregoing testimony, we conclude that Matthews impliedly charged

Smith with recent fabrication or improper influence or motive. It was not therefore

hearsay for the State to ask Smith during redirect examination if, in his second


Matthews v. State                                                                         Page 14
statement to police, he said such things as that, in conversations with Matthews,

Matthews always seemed fascinated with altercations where he could kill someone and

get awaywith it. See Tex. R. Evid. 801(e)(1)(B). Weoverrule Matthews's first issue.

                                        Issue No. 2


        In his second issue, Matthews contends that the trial court erred in commenting

to the jurors on the evidence in the trial, thus denying his right to due process of law.

Matthews complains about the trial court's following statement, made at the end of the

second day of testimony:

        Ladies and gentlemen, the State has rested, which means they've
        completed their Case in Chief, about 25 minutes faster than I thought they
        would so they did a good job. And what the next thing - - there's some
        things that the Court has to do with the attorneys between now and when
        I can ask the Defense what their next move is going to be, so I will excuse
        youfor today, and in the morning, we'll be ready to go at 9:00. But I'll tell
        you that the case is on the schedule that I thought it would be and we're in
        good shape. So if you'll accompany the bailiff out of the courtroom.

        "Ordinarily, a complaint regarding an improper judicial comment must be

preserved at trial." Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). The

"traditional and preferred procedure" for seeking relief at trial for a complaint that

must be preserved is "(1) to object when it is possible, (2) to request an instruction to

disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party
thinks an instruction to disregard was not sufficient." Id. at 98-99 (quoting Young v.

State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). A party may skip the first two steps

and request a mistrial, but hewill be entitled to one only if a timely objection would not




Matthews v. State                                                                       Page ,5
have prevented, and an instruction to disregard would not have cured, the harm

flowing from the error. Id. at 99.

         Here, Matthews did not object to the trial court's remarks, request an instruction

to disregard, or move for a mistrial. His complaint was first made in his motion for new

trial.    Matthews's complaint that the trial court's above-quoted statement was an

improper comment to the jurors on the evidence in the trial was therefore not

preserved. See id.; Bryant v. State, 455 S.W.2d 235, 236 (Tex. Crim. App. 1970).

         The Court of Criminal Appeals, however, has granted relief on an improper-

judicial-comment complaint that was not preserved at trial. See Blue v. State, 41 S.W.3d

129 (Tex. Crim. App. 2000) (plurality op.). In Blue, the trial judge had apologized to the

jurors about the delay in the case, telling them that the defendant was still deciding
whether to accept the State's plea offer or go to trial. Id. at 130. The trial judge further

told the jurors, "I prefer the defendant to plead," and "[W]e were all trying to work

toward that and save you time and cost of time." Id. A plurality of the Court decided
that the trial judge's remarks vitiated the defendant's presumption of innocence and

were fundamental error of constitutional dimension that required no objection. Id. at

131-32.


         The circumstances in this case differ from the circumstances in Blue. Here, the

trial court's comments focused not on the weight of any evidence presented, any

arguments made, or any positions taken; rather, the comments merely conveyed the
trial court's hope to keep the trial on schedule based on the State's concluding its case in



Matthews v. State                                                                     Page 16
chief sooner than expected. See also Unkart, 400S.W.3d at 99-102. We therefore overrule

Matthews's second issue.


        Having overruled both of Matthews's issues, we affirm the trial court's

judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
        (Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed December 11,2014
Do not publish
[CRPM]

        *(Chief Justice Gray concurs in the Court's judgment. A separate opinion will
not issue.)




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Matthews v. State                                                                Page 17
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