                      2&+IS
               Ko-M=ai6yri5___                                   ORIGINAL

                           IN    TITE

         COURT       OF   CRIMINAL         APPEALS               COURT OF CRIMINAL APPEALS
                          OF TEXAS                                   APR 17 2015

                                                                 Abel Acosta, Clerk
                ROBERT     EARL       SCHIELE

                                            APPELLANT-PETITIONER


                                V.

                THE    STATE     OF     TEXAS,

                                              APPELLEE-RESPONDENT,




APPELLANT'S    PETITION      FOR      DISCRETIONARY       REVIEW




                                                                          FILED \N
         IK APPEAL NO.01-13-00299-CR                         COURT OF CRIMINAL "^cMLb
                                                                               APPEALS
                                                                       APR 17 2015
                          FROM       THE


                    court of appeals                               Abel Acosta, Clerk
       FOR    THE    FIRST      JUDICAL       DISTRICT


                     HOUSTON,         TEXAS



                                                  ROBERT    EARL    SCHIELE

                                                  TDCJ-ID NO#185C352

                                                  ALLEN    POLUNSKY        UNIT

                                                  3872    F.M.   350     SOUTH

                                                  LIVINGSTON,       TEXAS
                                                                    "J ~j O C "I
              ORAL    ARUGMENT        REQUESTED
                                         TABLE    OF    CONTENTS



INDEX    OF    AUTHORITIES                                                            . . . iii


STATEMENT       REGARDING       ORAL      ARGUMENT                                        1


STATEMENT       OF   PROCEDURE       HISTORY                                              2

STATEMENT;.OF 'THE .CASE                                                   T            1'..

              GROUND    FOR    REVIEW      NO.    ONE

        DID    THE   DECISION       OF    THE    FIRST    COURT    OF    APPEALS   CONFLICT
        WITH    THE U.S.       SUPREME COURT            DUE   PROCESS     STANDARD THAT        WAS
        ANNOUNCED ESI JACKSON V VIRGINIA,                      REQUIRING EVIDENCE TO BE
        BOTH    LEGALLY       AND   FACTUALLY SUFFICIENT TO SUSTAIN                  A CONVICTION,
        IN THIS      CASEETHE       EVIDENCE       WAS    LEGALLY       INSUFFICIENT.

              GROUND    FOR    REVIEW      NO.    TWO

        AS     PRESENTED        BY THElSTftTEx           GROUND-TWO      ADDRESSES'PRONTS            OF
        ERROR TWO THROUGH NINE REGARDING THE TRIAL COURT'S ERROR IN
        ALLOWING EXTRANEOUS EVIDENCE REGARDING PTITIONER3 PAROLE.

               GROUND    FOR    REVIEW      NO.    THREE.


        DID    THE
                TRIAL COURT ERROR REACH TO A LEVEL OF CONSTITUTIONAL
        DIMENSION BY ALLOWING INSUFFICIENT EVIDENCE REGARDING AN
        INJURY TO A CHILD CHARGE FROM OKLAHOMA DURING PUNISHMENT




ARGUMENT       NUMBER   ONE                                                               3


ARGUMENT       NUMBER    TWO                                                              7


ARGUMENT       NUMBER    THREE. . .                                                       11

PRAYER FOR RELIEF                                                                         13

CERTIFICATE OF          SERVICE                                                           13

APPENDIX




                                                   11
                                                    INDEX   OF   AUTHORITIES


CASES:



CARRIZALES                       V    STATE;
397 S.W.                 3d 251,255(Tex.Crim.App.[13-Dist]2013)                                   3
CRUME        V       STATE:
342 S.W 3d 241(Tex.App.Beaumont 2011)                                                             7
IN    RE     WIN5HIP:
397 U.S. 358 (1970)                                                                               2
JACKSON              V       VIRGINIA:
443 U.S.307,99 S.Ct.2781,61 L .Ed .2d 560 (1979')                                     2,3,5,7
MONTGOMERY                       V    STATE:
810 S.W. 2d 37 2, 388(Tex.Crim.App.1990)                                                          8
MOTON        V       STATE:
991 S.W.2d 84~1, 846(Tex. Crim. App. 1999)                                                10
MOSES        V       STATE:
105 S.W. 3d 62 2, 6 27 (Tex. Crim. App. 2003)                                             11
ORR     V    STATE:
307 S.W.3d 308,394(Tex.App.                                 [2nd-Dist ]2010 )             4
POWELL           V       STATE:
157 S.W.3d 646(Tex.Crim.App.2006)                                                         9
POWELL           V STATE:~
189 S.W. 3d 285 (Tex. Crim. App. 2006)                                                    .9
SANTELLAN                    V       STATE:
93 9 S.W. 2d 155,168 (Tex. CRIM. APP. 1997)                                                       8
SCHUTZ           V       STATE:
957 S.W. 2d 52,"71 (Tex. Crim. App. 1997) ..-                                                     9
THOMPSON VvLOUISVILLE:
362 U.S. 199, 80 S .Ct. 62 ,4 L .Ed . 2dl54-' (1960 ) „•                                      5
UNITED           STATES                V   AKPAN:
396 F.Appx.88( 5th. Cir. 2010)                                                            ;6
UNITED           STATES                V   CRUZ:
326 F.3d 392(3d.CIR2003)                                                                      9
VALDEZ           V       STATE:
776 S.W. 2d 162 (Tex. Crim. App. 1989)                                                    10
WILEY        V       STATE:
74 S.W.3d 3995497 n.21(Tex.Crim.App.2002)                                             -10
WILLOVER                 V       STATE:
70 S.W. 3d 481, 845 (Tex. Crim. App. 2002)                                                11
WHEELER              V       STATE:
67 S.W.3d 879,888'( Tex.Crim.App.2002)                                                    10
STATUTES:

ABA     MODEL                RULES         4-4-1                                      1-2
ABA     MODEL                RULES         3.8                                        12
STARE        DECISIS                   DOCTRINE                                       3,4

TEXAS        RULE                OF    EVIDENCE:

RULE: 401                                                                             8
RULIT402                                                                              8
RULE        403                                                                      10
RUL E       404                                                                      7
RULE        901                                                                 -    11
Rule        902                                                                      11
RULE1005                                                                            11,12


                                                                 i ii
                                           IN    THE


                            COURT    OF    CRIMINAL        APPEALS


                                          OF    TEXAS




                               ROBERT       EARL      SCHIELE
                                                              APPELLANT-PETITIONER,

                                                V.

                                   THE    STATE'OFTTEXAS
                                                              APPELLEE-RESPONDENT,



              APPELLANT'S     PETITION         FOR    DISCRETIONARY      REVIEW




TO   THE   COURT   OF   CRIMINAL    APPEALS      OF    TEXAS:

       Appellant-petitioner,             respectfully submitt this Petition For

Discretionary Review,         and moves this Honorable court to grant

review of this cause and offers the following in support thereof;



                        STATEMENT    REGARDING         ORAL   ARGUMENT


The appellant request oral argument                    in this case because such

argument may assist the court in applying the facts to the issues

raised.     It is suggested that oral argument may help simplify the

facts,     and clarify the issues.



                             STATEMENT         OF    THE   CASEB


       Appellant was convicted for arson by a jury in the 44lTh

District Court,         in Polk County,         and the conviction was enhanced

by a prior offense. On March 6, 2013, the jury returned a guilty

verdict,     and on March 7, 2013,             the jury deliberated on the punish

ment and found the allegation of the enhancement offense to be


                                               )D
true,    and assessed punishment for life in the Texas Department of

Criminal Justice Division,                      and appellant filed a timely notice of

appeal:?on March 8,               2013.




                             STATEMENT          OF    PROCEDURAL          HISTORY



        In cause number 22.467,                      the appellant-petitioner was charged

with the offense of                Arson.       Appellant-petitioner was convicted on

March 7,       2013,       and appealed the conviction.

        On the 19th day of February 2015,                            the First Court of Appeals

affirmed the conviction.                   No mation for re-hearing was filed

        On A\CXra oQ                2015, this Petition. For Discretionary Review
was timely forwarded to the Court Of Criminal Appeals at P.O.                                             Box

12308,       Capitol Station,             Austin Tiexas            78711.




                                         GROUNDS       FOR    REVIEW



                                                       I.


        DID    THE       DECISION    OF    THE       FIRST    COURT       OF   APPEALS    CONFLICT

        WITH       THE    UNITED    STATES       SUPREME          COURT    DUE   PROCESS       STANDARD

        THAT       WAS    ANNOUNCED       IN JACKSON          V    VIRGINIA      REQUIRING       EVIDENCE

        TO    BE    BOTH    LEGALLY       AND    FACTUALLY          SUFFICIENT       TO   SUSTAIN    A

        CONVICTION           AS     IN     THIS        CASE        THE    EVIDENCE    WAS      LEGALLY    IN

        SUFFICIENT.



                                                       II.


        AS PRESENTED         BY    THE    STATE,       GROUND       TWO     ADDRESSES      POINT   TWO

        THROUGH      NINE    REGARDING          THE    TRIAL       COURT'S       ERROR    IN   ALLOWING

        EXTRANEOUS         EVIDENCE       REGARDING          PETITIONER'S          PAROLE      DURING

        THE GUILT/INNOCENCE PHASE OF TRIAL.




                                                      (2)
                                                Ill.



   DID   THE    TRIAL      COURT'S      ERROR   REACH      TO   A   LEVEL    OF   CONSTITUTIONAL

   DIMENSION        BY    ALLOWING      INSUFFICIENT        EVIDENCE        REGARDING   AN

   INJURY      TO   A    CHILD   FROM   OKLAHOMA       DURING       PUNISHMENT.




                                       ARGUMENT    NUMBER       ONE


     DID    THE      DECISION     OF    THE    FIRST    COURT       OF   APPEALS   CONFLICT
     WITH      THE      UNITED   STATES       SUPREME      COURT     DUE   PROCESS   STANDARD
     THAT WAS           ANNOUNCED    IN JACKSON        V   VIRGINIA,        REQUIRING   EVIDENCE
     TO BE BOTH           LEGALLY AND FACTUALLY SUFFICIENT                    TO SUSTAIN      A
     CONVICTION           AS IN THIS CASE THE EVIDENCE WAS                    LEGALLY
     INSUFFICIENT.




     The appellant           courts decision conflict with the standard in

Jackson V Virginia,443 U.S.307,99 S.Ct.2781,61 L.Ed.2d 560(1979),

because the facts never proved appellant intentionally started a

or was involved in starting a fire. The evidence presented to the

jury was legally insufficient to satisfy the due process clause „

of the fourteenth amendment,                  which required the state to prove

each element of the offense beyond a reasonable doubt.                                       . .:.- .

In this case it was clear the petitioner suffered a violation of

fundamental fairness,            thats guaranteed by due process,                    and the

court of appeals decision fatally denied petitioner of that right

which he's guaranteed protection under.

     The petitioner was charged as a party to an offense that his

wife was also charged absent being indicted, or charged for the

offense under the law of party.                  A fatal variance occurred here

when the jury convicted petitioner as a party to an offense with1^

out presenting evidence to show he was a party.

     Applying the "Stare Decisis Doctrine" to this case its clear

that this case has simular elements of Carrizales V State,397 S.W


                                                 (3)
3d 251,255(Tex.App.-13th-Dist 2013):Orr V State,306 S.W.3d.380,

394(Tex.App.-2nd-Dist 2010)          Inwhich two sister courts agreed that

"In order to establish the corpus delicti                in an arson case case,

it is necessary to show the fire was designedly set by someone','"

and in this case the state was required to show that petitioner

intentionally started the fire,           not base the determination on a

hunch,   but by presenting supporting evidence.

   -STARE    DECISIS:
         "stare decisis is a legal doctrine that means like facts
         will   receive    like   treatment    in   a   jcourt   of   law."


In examining the state's theory of             the case,     and the argument's

used to show motive,        claiming petitioner lack of compliance with

parole rules was the motive for allegedly starting the fire.

       On page (12) of petitioners appellant brief,                   it shows how the

appellant    counsel sequenced the events prior to the house fire,

and also argue that theycclaimed appellant sefeithe housep.onefire r

that morning based on testimony by             Marian Buffington,         fronf'. CPSv

that testified she was at          petitioner home at        10:21 am On February

7th,   and smelled something burning which she described as smelling

like wood burning,        she testified that she didn't smell the odor

when she approched the house,          but the further away from the house

the more she smelled,        which was    logical,      because she was only a

few yards away from the area of where the property owner burn her

trash,   which explain why Buffington didn't smell the burning odor

when she approched the petitioner's house. The Court Of Appeals

erred by considering the state's unsupportive argument that the

petitioner      started the fire in order to cover up for not report

ing to his parole officer when states exhibit (6)(a video) show*o


                                         (4)
that petitioner had been warned that a warrant                            for his arrest

would     bee     issued     by   his       parole           officer the day prior to the

fire,    because petitioner knew he had failed a drug                         test, aibso the

evidence showed that petitioner called his parole officer at                                 1:30

pm,   and told his parole officer where he was located,                             and stayed

there untile police came and arrested him.

        The attorney also pointed out to the court of appeals on page

(23) of     his brief that the "state incorrectly argued" that peti

tioner lied to Captain Childers,                   stating petitioner said,             he had

left the house an hour before the fire was reported when the

electronic      monitor     showed   he     left       the    house   14-minutes    before       the


fire was reported," but the facts show petitioner                             had told Chil

ders that he and his family had returned to the house approximat-

ly one hour before they heard the sirens."                            He also told Childers

that they started cooking lunch with some items being fried,                                 and

a grease fire startted and he thought he had put it out,                               and S/E.

(6) showis that petitioner was constently being                            interupted by

Childers,       and not given the opportunity to state how long it took

to begin cooking,          or to put the fire out.                In Jackson V Virginia,

the U.S. Supreme court            made it clear that a conviction is uncons

titutional even if there is some evidence of guilt when all the

evidence does not permit any retional fact-finder to find guilt

beyond a reasonable doubt,              which under the Jackson standard the

state must prove every element.-See Also. Thompson V Louisville,

362 U.S.199,80 S.Ct.62,4 L.Ed.2d 654(1960).

FATAL    VARIANCE:


        Petitioner assert's          that    a    fatal      variance     occured    when   he



                                                 (5)
was convicted as a party to an offense,         and not charged in the

indictment,    nor was the   jury instructed on the    law of party.

     The    petitioners wife was at       the house prior to the fire,

and she was also at     the bridge when he was arrested.       The state

argued that petitioners wife was carrying a red expandable folder

with all their important papers.      The appellant counsel refer's to

the fact that petitioner wife had gotten indicted for the same

charge.    (RR4:15)   The facts are clear that the petitioner wife

was carrying the red folder, which led the state to believe she

was part of the incident,     but absent a party instruction,       or a

charge in the indictment as a party,         then the evidence of:petit

ioners wife earring the red folder can not be         .used to convict the

petitioner,    and to sustain a conviction as a party to an offense,

there must be evidence of a common purpose,         or design prior to or

contemporaneous with the criminal act.         United State V Akpan,396

F.Appx.88(5th Cir.2010) The First Court of Appeals ignored the

fact's pointed out on page (25) of the appellant brief that was

an indicator that     the fire was not set intentionally,       was that all

the family belongings, their clothes,         their food,   the kids toys,

and other valuables were in the house during the fire.

     They Only had the cloth on their back other then the folder,

also there was the testimony by the arson investigator that could

not dispute the fact that the fire was accidental,           there was no

insurance fraud, or any othe reason for petitioner, or his wife

to distroy their home, or property, and theirs no reason to assume

the fire had something to do with petitioners parole, because the

records show he called his parole officer, and waited there until

                                    (6)
he was arrested.         As far as       his wife having the red folder,                   the

court erred by not giving an instruction on the party law,                                but

allowed     the state    to    use   evidence      from whabs      shown    to    had   been

associated with petitioners wife, also the court ignored the

statement by petitioner to Capt. Childers,                    that explained the

reason for the petitioners wife to have the folder,                          which was the

fact    that   "he   and his    wife and     two kids    that      were    home    left    to let

the house are out,[following the accidential greas fire that he

thought he put out] to talk to a man about renting a travel trai

ler to live in"         Which was a factor ignored by the court of appe.

eals as to the reason for              the petitioners wife to have the red

folder with their personal information, and non of their personal

item,   which was distroyed in the fire. The states theory of the

offense is so lacking in justification, that there was an error

well understood,        and comprehended in existing law beyond any pos

sibility for fairminded disagreement. The court of appeals in

Beaumont agreed that,           [as here]     a conviction, or judgment to be

void due to no evidence. See Crume V state,342 S.W.3d 241(Tex.App

Beaumont 2011):Jackson V Virginia,443 U.S.307: The conviction is

based simply on a "hunch" that lack support, and since jeopardy

has attached here,        the only resolution feesible would be to re

verse the conviction,           because of no evidence as required by the

due process clause of the fourteenth amendment to the United

Staters     Constitution.


                              GROUND   FOR   REVIEW    NO.   TWO
       AS   PRESENTED    BY    THE   STATE   GROUND    TWO   ADDRESSES      POINT       TWO
.«   THROUGH    NINE    REGARDING      THE   TRIAL    COURT'S   ERROR      IN    ALLOWING
            EXTRANEOUS        EVIDENCE   REGARDING      PETITIONERS        PAROLE


        The trial court's allowing 404(b) evidence to be presented


                                             (7)
to the jury during the guilt-innocence phase of the trial,                   pre

judiced th outcome of the proceeding by bolstering the states

theory,    and relieving the state burden of persuasion beyond a re

asonable doubt of every essential element of the offense charged,

which had it not been for the improper bolstering of the 404(b)

evidence,    the result of the proceeding more-then-likely would have

different outcome. The state was allowed present evidence of the

petitioners failed drug test, parole violations, anger management

alloduring the guilt/innocence phase of the trial,                 which had no

relevance in proving petitioner had motive,             intent, or that he

committed the alleged offense gharged.

The records show that petitioner objected to the evidence,                   and the

court erred by allowing the state to introduce the evidence during

the guilt/innocence phase of the trial. The extraneous act's were

not relevant since it was made clear petitioner called his parole

officer shortly after the fire was discovered,               which disproves

the states theory,    that petitioner started the fire to avoid re

porting.    The trial judge operated outside the boundaries of his

discretion.    See Santellan V State,939 S.W.2d 155,168(Tex.Crim.App

1997).     Relevant evidence is evidence to make the existence of any

fact that is of consequence to determination of the action more

probable or less probable then it would without the evidence.                      See

Tex.R.Evid.401.    Evidence   which   is    not   relevant   is   not   admissible.


Tex,R,Evid.402,    The evidence had no        relevance apart from character

conformity, and was not admissible, because it was evidence that

the probetive value of the extraneous act evidence was outweight-

ed by unfair prejudice. Tex.R.Evid.403:Montgomery V State,810 S.W

2d 372,388(Tex.Crim.App.1990). The stae argued that petitioner

                                      (8)
opened the door to otherwise inadmissible evidence, when he stated

, he was arrested after calling his parole officer,                       but the law

forbids the straying beyond              the scope of invitation.           Schutz V

State,957 S.W.2d 52,71(Tex.Crim.App.1997).

POWELL    V   STATE,


        The state argued that the appellant counsel improperly app

lied Powell based on the fact that the cpurt of criminal appeals

reversed the dicision of             the waco court of appeals in Powell V

State,189 S.W.3d 285 (Tex. Crim .App. 2006 ). There are two totally

different      issues   involved      in the    two   ease's,   which would have.-;-.'^

required a reversal if          the claim had been properly considered as

they were in Powel1.            In    this case the petitioner was not attem

pting to elude:: being arrested,               infact, he      called his parole off

icer and told him his whereabout when he had been told by his

parole officer that a warrant would be issued for his arrest.

        Also    the   state   addressed   the    fact   that    -in:- Powel 1   the   court


refers to,,United Staes V Cruez,326 F.3d.392,394(3rd.Cir.2003 ),

which was unreasonable in addressing this issue here in this case

because,       the jury was never given a hint of what type of crime

led to the parole,in ither Cruz,                or Powel1. That wasn't the case

here,    the state sought a conviction for ancoffense that even the

fire inspector testified to saying,                   there was no evidence that

dispute the fact that the fire was not started or caused by an

accident,      even the petitioner testimony corroborate the fact that

the fire was not intentionally started, but the state persisted

that because petitioner was a criminal in general,                       he started the

fire,, or simply for being on parole caused him to set the fire.,



                                               (9)
The appellant counsel correctly pointed out on page (40) of his

brief "that the state's case for showing motive and intent relied

entirely on appellant's parole status and extraneous offenses or

misconduct while of parole." The state also improperly cited

Valdez V State,77^6 S.W.2d 162,168 ( Tex. Crim. App. 1989 ) this case is

also    inconsistent        with   the   issues    in t h i s   case as    well.

Tex.R.Evid.403,        requires the court to examine the danger of conf

usion of an issue prior to allowing it to be presented to the jury

also the misleading that will arise,                   because looking at the in

stant case, eighty-percent of the trial was based soley on petit

ioners parole violations, and the factors surrounding his monitor

that failed to prove arson as alleged in the indictment. The state

knowingly presented these issue's to "Bolster A Weak"                          case,   andt

also to sidetrack the juryinto considering factual                          facts unrelate

ed to proving intent,motive or whether thr fire was purposely

started,     or anything to do with the issue at hand.                      This court has

determined        inseveral case's simiiiibar        to   the    issue    discussed here,

that,   "evidence is fairly prejudicial when it-has an undue tend

ency so that a        decisional be made on an improper basic." See Wiley

V State,74 S.W.3d 399,407,n,21(Tex•Crim.App.2002):Wheeler                          V State

67 S.W.3d 879,888(Tex.Cram.App.2002):Reese V State,33 S.W.3d 238,

240-41(Tex.Crim.App.2000):Mozon V State,991 S.W.2d841,846(Tex.CR.

App.1999). This issue was properly persented in the appellant's

brief, and because of that petitioner ask the court to incorporate

by reference,        the arguments advanced to the First Court of                      Appeals

to review,        but erred in that endeavor, The approperate remedy here

would   be   to    vacate   the    conviction.


                                            (10)
                              GROUND    FOR   REVIEW     NO.   THREE


     DID   THE    TRIAL     COURT ERROR     REACH   TO   A   LEVEL   OF   CONSTITUTUINAL
         DIMENSION     BY    ALLOWING      INSUFFICIENT       EVIDENCE    REGARDING   AN
         INJURY   TO   A    CHILD   FROM   OKLAHOMA      DURING   PUNISHMENT    PHASE.


         This was presented as ground ten                    in the appellant court,that

involved three documents S/E (20) (21) and (22) That were present-^

ed during the punishment phase of the trial to show that petit

ioner had allegedly been convicted in Cleveland County, Oklahoma

for injury to a child.              A hearing was held outside the presence of

the jury to determine whether the evidence was admissible. The

defense objected on the ground that,                     (1) exhibit (20) did not-., ••;;.

provide sufficient independent evidence that appellant was the

subject of the exhibit, and (2) exhibits (21&22) were .noti^.erti f:-

ied,     or authenticated,          and therefore were hearsay,             but the court

allowed the evidence over objection. As pointed out to the first

Court of Appeals at page (42) of the appellant's brief, state's

exhibit (20) contained no finger-prints, or any other indentifier

the stae presented state's exhibits (21&22) to attempt to provide

the missing indentifers, but neither states exhibits (21 or 22)

were ceritified as required by Texas Rule Of Evidence,                          Rules901,

_9_Q2,   and Rule 1005.        See Also Moses V State,195 S.W.3d 622,627(Tex

Crim.App.2003):Willover V State,70 S.W.3d 841,845(Tex.Crim.App.

2002) The requirement of authentication, or indent ification as a

matter of law, also as a condiction precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what it's proponent claim. Tex R. Evid. 9011(a)

Counsel also points to the basic of why the state wanted these

records presented, which was the fact that the records would



                                               (11)
inflaim the jurys minds against petitioner, because the exhibits

reflected a conviction for injury to a child,                          which was one of thfe

most heinous of all the other other allegations presented,                                  and it

cannot be said that it didn't have a substantial,                             and injurious

effect,        or influence on the jury's decision to sentence petition

er    to    life.

TEXAS      RULE        OF    EVIDENCE   STATES:


           "The    contents of an          offical      record,   or document      authorized
           to be record or file and actually recorded or filed,in
           cluding data compilations in any form, if otherwise
           admissible, may be proved by copy, certified as correct
           by a witness who compared it with the original."

The     stae      in    this    case    failed    to   authenticate   the    exhibits      dis

cretion by allowing this information to be presented to the jury

absent the authenication requirements of Tex.R.Evid.1005.

This error was not harmless,                      it's clear it affected the jury's

decision in deciding the sentence, also the state neglected it's

obligation to seek justice as opposed to only seeking a win, which

violated a ethical duty imposed by the American Bar Association,

Moddel       Rule       Of   Professional        Conduct   Rules,   3.8,    and   4-4-1.

The state obtained a conviction on improper evidence,                               and.the      .

court erred by allowing the state to present the improper evidencee

which was both prejudice,                   also used to sidetrack the jury.

Based on the issues presented here,                        also to the First Court Of

Appeals,          the petitioner's Sixth and Fourteenth amendment was vio

lated, which the only remedy would be to remand for new sentence

ing .
                                                           RESPECTFULLY      SUBMITTED,



                                                                            *\<&SteS5.
                                                           ROBERT   EARL    SCHIELE   #1850352


                                                   (12)
                                              PRAYER


     Petitioner respectfully presents this petition,:and pray
that the court reverse this case, and return to the sentencing
court, and a proceeding be held, also that the issues here be
resolved    in    a    matter     consistent     with     the U.S.         Constitution.




                                                          ROBERT       EARL      SCHIELE#1850352




                                  CERTIFICATES'      OF   SERVICE



   I', ^ROBERT EARL'.iSGHTEEE,           AN    INMATE     OF    THE   TEXAS       DEPARTMENT         OF


CRIMINAL   JUSTICE,          PRESENTLY    IN    POLK,     COUNTY,         CERTIFY       THAT    ON


THIS DAY THE ffi1^ DAY OF             JVrcVv                        2015, THAT A TRUE AND
CORRECT    COPY       OF   THIS   PETITION     WAS   SENT      BY   U.S    MAIL    TO    THE    POLK


COUNTY    DISTRICT         ATTORNEY'S    OFFICE      AT   1001      WEST    MILL    ST.    IN


LIVINGSTON       TEXAS      77351.




                                                                                                .850352
                                                          ALLEN       POLUNSKY      UNIT
                                                          3872      F.M    350    SOUTH
                                                          LIVINGSTON,            TEXAS    77351




                                               (13)
Opinion issued February 19,2015




                                      In The

                              Court of Appeals
                                     For The

                          Jftnrt Bfetrut of Cexa*

                              NO. 01-13-00299-CR



                    ROBERT EARL SCHIELE, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 411th District Court
                            Polk County, Texas
                           Trial Court Case No. 22467



                          MEMORANDUM OPINION


      Appellant Robert Earl Schiele was charged by indictment with felony

arson.1 The indictment's enhancement paragraphs alleged that Schiele previously


1     On March 26, 2013, the Texas Supreme Court ordered this appeal transferred from
     the Court of Appeals for the Ninth District of Texas. See TEX. GOV'T CODE ANN.
     § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any
had been convicted of felony burglary and felony retaliation.           A jury rejected

Schiele's theory of the case—that the grease fire began accidentally—and found

Schiele guilty of the charged offense. After finding the enhancement allegations

true, the jury assessed punishment at life in prison. On appeal, Schiele contends

that the evidence at trial was legally insufficient to support his conviction. He also

contends that the trial court erred by (1) admitting, during the guilt/innocence

phase, evidence that he was on parole at the time he committed the charged offense

and had previously violated parole conditions and had his parole revoked, and

(2) admitting, during the punishment phase, evidence of a prior conviction for

injury to a child. We affirm.

                                     Background

      On February 7, 2012, the mobile home that Schiele and his family were

renting caught fire and burned to the point that it was not salvageable. Marian

Buffington, a Children's Protective Services caseworker, testified that she believed

she smelled something burning when she made an unannounced visit to the home

on the day of the fire. She arrived at 10:21 a.m. but left shortly thereafter because

no one answered her knock on the door. She testified that she smelled something

burning as she walked back toward her car and away from the home. But



      conflict between the precedent of the Court, of Appeals of the Ninth District and
      that of this Court on any relevant issues. See TEX. R. APP. P. 41.3.
Buffington did not call 911 because she returned to the front door to check the

smell and could not smell anything while standing there.

      Approximately three hours later, Jack Ray, a passerby, drove by the home

and saw smoke and flames. Ray called 911 to report the fire at 1:29 p.m. He

testified that he had driven by the home 15 minutes earlier and had not seen any

evidence of fire at that time.


      Officer T. Binford of the Polk County Sheriffs Department testified that he

was dispatched to the scene around 1:32 p.m. When he arrived five minutes later,

Binford looked in a window and saw "a small fire in the kitchen area" that


"appeared to be on the top of the stove area." He testified that the house was

"filled with smoke" and that no one was inside.

       Schiele had not called 911 to report the fire, but he did call Krystal Philp, his

parole officer, half an hour after Ray reported the fire. At about 1:58 p.m. on

February 7, Schiele left a voicemail for Philp explaining that he had failed to report

that morning due to a fire at home. Philp returned Schiele's call that afternoon and

made a recording of their conversation, which was played for the jury at trial. In it,

Schiele told Philp that his home caught fire that morning. Schiele told Philp that

he had put out the fire and then left to meet Philp in Huntsville, as she had

instructed the day before, but that he failed to make the meeting because he had to

return home when he learned the fire had re-ignited. Schiele told Philp that he had
inhaled smoke and left the home and that he was at a nearby bridge. Earlier that

day, Philp had requested a warrant for Schiele's arrest based on his failure to report

as instructed.


        Captain R. Childers of the Polk County Sheriffs Department testified that

he arrived at the bridge after another officer had arrested Schiele pursuant to the

arrest warrant.    Childers testified that Schiele's wife, Bessie Lucas, and two

children, were at the bridge with Schiele and the arresting officer. Lucas's bag

contained a red expandable folder containing important family documents.

        Once Childers and Schiele arrived at the police station, Childers conducted a

videotaped interview of Schiele, which was played for the jury. According to

Schiele, he was frying lunch—hot pockets, corn dogs, and French fries—in a

skillet on the electric stove when a grease fire started. Schiele told Childers that a

cabinet caught fire, and that his children ran outside as he fought the fire. Schiele

said that he only left the house after he thought that he had extinguished the fire.

Schiele, Lucas, and the children then walked to a nearby bridge where they waited

for the smoke to clear out of the home. Although Schiele heard sirens within an

hour after he left the home, he did not return because he did not "want to deal with

the landlady." Schiele surmised that the fire must have blazed back up after he

left.
      During the same recorded interview, Schiele admitted to Childers that

Schiele had falsely told Philp over the phone that the fire occurred in the morning.

He said that he used the fire as his "excuse" for not reporting to Philp as instructed.

Schiele also admitted to Childers that Philp had told him that an arrest warrant

would issue if he did report to her in the meeting.

      Philp testified that Schiele had failed to report to her on February 6, the day

before the fire. When Philp asked Schiele to explain his failure to report, Schiele

told her that he left home to go to work, but his boss's truck broke down, and that

his other attempts to find a ride to meet Philp were unsuccessful.          Philp told

Schiele that the records from his electronic monitor showed something different—

that Schiele never left home on February 6. Schiele responded that the monitor

must not have been working properly. Philp ended the conversation by telling

Schiele to report to her in Huntsville at 10:00 a.m. the next day, February 7. She

told Schiele that she would request a warrant for his arrest if he did not report to

her on February 7 at 10 a.m. She also told him that she would request a warrant

for his arrest if further investigation of his electronic monitor records confirmed

that Schiele was falsely claiming to have left home on February 6. When Schiele

failed to report on February 7 as instructed, Philp submitted a violation report, and

a warrant issued around 1:11 p.m. that day.
      Jay Barbee, Polk County Fire Marshal and arson investigator, investigated

the fire. Barbee testified that the origin of the fire was a pot that had been on the

electric stove. Barbee estimated that the burner had to have been on for 30 to 45 to

melt the sides of the pot. Barbee testified that he could not determine whether the

burner had been left on intentionally and that there was no evidence that an

accelerant was used to start the fire.


      James Booker, Schiele's parole officer at the time of trial, sponsored the

results of Schiele's drug test, which showed that Schiele tested positive for

memamphetamine two days after the fire. He also sponsored a document in which

Schiele admitted in writing that he used methamphetamine on February 6, the day

before the fire.


       Booker also told the jury about the records obtained from Schiele's

electronic monitoring system. They showed that Schiele's home monitor was

unplugged at 8:05 a.m. on February 7, the day of the fire. The system nevertheless

continued to monitor Schiele's entry and exit from his home due to a battery

backup, about which officers do not tell parolees. Booker testified that the records

showed that, on the day of the fire, Schiele left home at 9:29 a.m., returned at

12:51 p.m., and left again at 1:14 p.m, approximately 15 minutes before Ray

reported the fire to 911.
      Sandra Henderson, who lived nearby, testified that she was the owner of the

home, and had rented it to Schiele's wife, Lucas, since September 2011.

Henderson testified that Lucas complained about bedbugs and roaches in January

2012. Henderson was willing to pay for an exterminator to treat the home and told

Lucas that they needed to schedule the extermination for a time when no one

would be home, but she never heard anything else about it.

      Although Henderson occasionally had helped Lucas by caring for her

children, driving her to life and career skills courses, and helping her organize her

important documents into the red folder, Henderson ultimately posted an eviction

notice around February 3, 2012, for unpaid rent.       Henderson testified that on

February 7, the day of the fire, she saw Lucas and her two children walking away

from the home at 9:00 a.m., with Lucas carrying a large bag.

                                 Sufficiency of Evidence

      In his first issue, Schiele contends that there was legally insufficient

evidence to support his conviction because no direct evidence shows that he

intentionally set the fire, and he presented evidence suggesting the fire was an

accident and was extinguished when he left the home.

A.    Standard of Review

       "When reviewing the sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a jury was rationally

justified in finding guilt beyond a reasonable doubt." Merritt v. State, 368 S.W.3d

516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318-

19,99 S. Ct. 2781 (1979)). "The jury is the sole judge of credibility and weight to

be attached to the testimony of witnesses."     Id.   Juries are permitted to draw

reasonable inferences from facts as long as each is supported by the evidence

presented at trial.    Id.   We determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Id. at 526 (citing Hooper v.

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).          We presume the jury

resolved conflicting inferences in favor of the verdict and defer to that

determination.   Id.   The standard is the same for both direct and circumstantial

evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

B.    Applicable Law

      As relevant in this case, a person commits arson if he "starts a fire,

regardless of whether the fire continues after ignition, or causes an explosion with

intent to destroy or damage any building, habitation, or vehicle knowing that it is

located on property belonging to another."             Tex. Penal Code Ann.

§ 28.02(a)(2)(D) (West 2011). A person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result. Tex.

Penal Code Ann. § 6.03(a) (West 2011); Wise v. State, 364 S.W.3d 900, 903

(Tex. Crim. App. 2012).

C.    Analysis

      There was no dispute that Schiele's actions caused the grease fire in the

mobile home—the central issue in the case was whether he committed the actions

with the requisite intent.   Intent is most often proven through circumstantial

evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991),

overruled on other grounds, Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App.

1992); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist]

2003, pet. refd). And a jury may infer intent from any facts that tend to prove its

existence, such as the acts, words, and conduct of the defendant. Hernandez, 819

S.W.2d at 810; Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980);

Dominguez, 125 S.W.3d at 761.

      Here, the jury rationally could have inferred that Schiele intended to cause

the fire from several of his actions before and immediately after the fire. First, the

jury heard Schiele admit to Childers in the interview that Schiele did not report the

fire to 911 despite the fact that the fire was significant enough to spread from the

stove to a kitchen cabinet and cause a sore throat from smoke inhalation. Second,

thejury heard and saw Schiele admit in the interview that he left the home and did
not return, even after hearing sirens approach. The reason he proffered for not

remrning to the scene was that he did not want to "deal with" Henderson. Third,

the jury could have rationally inferred that Schiele attempted to conceal his

whereabouts on the day of the fire based on evidence that his electronic monitor

was unplugged shortly after 8:00 a.m. See Guevara v. State, 152 S.W.3d 45, 50

(Tex. Crim. App. 2004) (attempts to conceal incriminating evidence and

implausible explanations to the police are probative of wrongful conduct and are

circumstances of guilt); Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App.

1983) (conduct of a defendant subsequent to the alleged commission of a crime

that indicates a consciousness of guilt is a circumstance tending to prove that the

defendant committed the act with which he is charged); Ramirez v. State, No. 14-

07-00060-CR, 2008 WL 3931403, at *4 n.5 (Tex. App.—Houston [14th Dist]

Aug. 21, 2008, pet. refd) (mem. op., not designated for publication) ("Leaving the

scene of a crime indicates a consciousness of guilt.").

      The jury likewise rationally could have inferred intent from some of

Schiele's words. In his interview with Childers, Schiele admitted that he falsely

told Philps that the fire started in the morning, before Schielepurported to have left

for Huntsville for his 10:00 a.m. meeting with Philp. Schiele admitted to Childers

that this was false, because, according to the account that Schiele gave Childers,

the fire started at lunch time. Schiele also made a key admission about the reason


                                          m
he told Philp this lie: he was trying to use the fire as an excuse for failing to report

to her in Huntsville. This admission could have been damaging in the jury's eyes

because it dovetailed with the State's theory of motive: Schiele intentionally set

the fire to avoid having to report to Philp because he knew that reporting to Philp

would result in his failing a drug test (because he had used memamphetamine on

February 6) and having his probation revoked. See Merritt, 368 S.W.3d at 526

(while not an element, motive can be a circumstance indicative of guilt); Temple v.

State, 342 S.W.3d 572, 588 (Tex. App.—Houston [14th Dist.] 2010) (lying is a

circumstance of guilt), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013).

      Finally, Schiele's account of when he left the home likewise could have

been viewed by the jury as words tending to show intent. Schiele told Childers

that approximately one hour passed between the time he and his family left home

and the time he heard sirens. But his monitor showed that he left only 14 minutes

before Ray reported the fire, and the evidence showed that authorities responded to

the scene within 9 minutes of Ray's report.        Based on this evidence, the jury

rationally could have inferred that Schiele was untruthful and attempting to conceal

his whereabouts at the time of the fire.          See Merritt, 368 S.W.3d at 527

(considering evidence that appellant's recollection of activities on evening of arson

was contradicted by other evidence in sufficiency analysis).




                                           11
      Schiele argues that the evidence was insufficient because Barbee testified

that he could not determine whether the fire was set intentionally, the State's case

was based only upon circumstantial evidence, and there was some evidence that he

started the fire accidentally. But circumstantial evidence is just as probative as

direct evidence and, in circumstantial cases, "it is not necessary that every fact and

circumstance 'point directly and independently to the defendant's guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all

the incriminating circumstances.'"     See Temple, 390 S.W.3d at 359 (quoting

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Likewise, while

Schiele correctly points out that there is some evidence that the fire was accidental,

we rely on the jury to resolve conflicts in the evidence, and this is especially so in

the context of credibility determinations. See Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury's

determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of

the verdict).

      Viewing the evidence in the light most favorable to the verdict, as we must,

we conclude that a rational jury could have convicted Schiele of arson.

Accordingly, we hold that the evidence was legally sufficient to support the

judgment. See Orr v. State, 306 S.W.3d 380, 394 (Tex. App.—Fort Worth 2010,


                                          19
no pet.) (evidence sufficient to support conviction for arson where appellant had

motive, was present at the time of the fire, and gave implausible explanations about

fire); Fitts v. State, 982 S.W.2d 175, 186 (Tex. App.—Houston [1st Dist.] 1998,

pet. refd) (presence at the scene before the fire coupled with motive and

opportunity is evidence tending to establish arson); Krebsbach v. State, 962

S.W.2d 728, 734 (Tex. App.—Amarillo 1998, pet. refd) (evidence sufficient to

support murder conviction where appellant had motive to set the fire, was present

in home as fire began, and made inconsistent statements about how she discovered

fire).

         We overrule Schiele's first issue.


                        Evidentiary Issues in Guilt/Innocence

         In his second through ninth issues, Schiele contends that the trial court

abused its discretion in admitting evidence of several of Schiele's bad acts.

Specifically, Schiele argues that the trial court erred in admitting evidence that

Schiele (1) was on parole, (2) failed to report to his parole officer the day before

the fire and the day of the fire, (3) violated his parole by using a controlled

substance the day before the fire and by disconnecting his electronic monitoring

device the day of the fire, (4) lied to his parole officer about why he failed to report

the day before the fire and the day of the fire, (5) was required to attend anger




                                              n
management classes, and (6) had violated parole obligations and had his parole

revoked before February 6,2012.

A.    Standard of Review


      We review a trial court's evidentiary rulings for an abuse of discretion. De

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse

a trial court's ruling on evidentiary matters unless the decision was outside the

zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007). If the trial court's ruling can be justified on any theory of law

applicable to that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d

at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) ("When a

trial court's ruling on the admission of evidence is correct, although giving a

wrong or insufficient reason, this Court will not reverse if the evidence is

admissible for any reason.")).

B.    Applicable Law

      Evidence of extraneous crimes, wrongs, or acts is not admissible at the guilt-

innocence phase "to prove the character of a person in order to show action in

conformity therewith" but is admissible to prove other matters, such as "motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident" if the accused is given reasonable notice of the State's intent to

introduce the evidence. Tex. R. Evid. 404(b) (extraneous evidence must have


                                         14
probative value beyond character conformity to be admissible). The Court of

Criminal Appeals has held that evidence of an appellant's parole status is properly

admitted under Rule 404(b) to show motive. Powell v. State, 189 S.W.3d 285, 289

(Tex. Crim. App. 2006) (evidence defendant was on parole was admissible under

Rule 404(b) for purpose of establishing defendant's motive for evading arrest).

Further, rebuttal of a defensive theory is also "one of the permissible purposes for

which relevant evidence may be admitted under Rule 404(b)." Moses v. State, 105

S.W.3d 622, 626 (Tex. Crim. App. 2003).

      "However, even if the evidence is relevant, and the purpose for which it is

being offered is permissible under Rule 404(b), it may still be excluded by the trial

court under Rule 403 if its probative value is substantially outweighed by the

danger of unfair prejudice." Id. (citing Montgomery v. State, 810 S.W.2d 372, 387

(Tex. Crim. App. 1990) (en banc)). Under a Rule 403 analysis, we consider:

(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


                                         is
admitted."    Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.

2006). The trial court is presumed to have conducted the proper balancing test if it

overrules a 403 objection, regardless of whether it conducted the test on the record.

See Williams v. State, 958 S.W.2d 186,195 (Tex. Crim. App. 1997).

C.    Analysis

      Here, the State offered the challenged evidence to prove that Schiele had a

motive to and did set the fire intentionally. The fact that Schiele was on parole,

failed to report to his parole officer on February 6 and February 7, was not truthful

about why he failed to report, tested positive for methamphetamine on February 9,

which he admitted to using on February 6, and disconnected his electronic monitor

on February 7 are all circumstances that demonstrate that Schiele had a motive to

set the fire. See Merritt, 368 S.W.3d at 527 (while not an element, motive can be a

circumstance indicative of guilt).       Accordingly, the trial court did not err in

concluding that this evidence was probative and admissible under Rule 404(b).

See Tex. R. Evid. 404(b); Powell, 189 S.W.3d at 289 (evidence of appellant's

parole       was   admissible    to      show    motive     for   evading     arrest);

Valdezv. State, 776 S.W.2d 162,168 (Tex. Crim. App. 1989) (evidence of an

outstanding federal parole warrant was admissible on the issue of defendant's

motive for shooting a police officer).




                                            16
      We also conclude that the trial court did not abuse its discretion in


overruling Schiele's Rule 403 objection with respect to some of the challenged

evidence. Specifically, evidence that Schiele was on parole, failed to report to

Philp on February 6 and February 7, used methamphetamine on February 6,

disconnected his electronic monitor on February 7, and lied to Philp about why he

failed to report was admissible under Gigliobianco.

      The first two factors—the probative value of the evidence and the State's

need for the evidence—weigh strongly in favor of admissibility. The evidence that

Schiele was on parole at the time of the offense, failed to report, used

methamphetamine on February 6, disconnected his electronic monitor, and lied

about why he failed to report on February 6 is probative of motive and intent. The

State needed the evidence to demonstrate why Schiele would have deliberately set

his home on fire. See Powell, 189 S.W.3d at 289 ("there was reason to believe that

the State had a significant need for the evidence" that appellant was on parole to

show motive and contradict other evidence).

      Under the third factor, we examine the unfair prejudice, that is, the tendency

of the evidence to suggest decision on an improper basis.        Gigliobianco, 210

S.W.3d at 641. Evidence might have this tendency "if it arouses the jury's hostility

or sympathy for one side without regard to the logical probative force of the

evidence." Id. Here, the evidence about Schiele's parole likely harmed Schiele,


                                         17
but the risk of unfair prejudice was minimized somewhat because the jury did not

learn the offense for which Schiele was on parole. See Powell, 189 S.W.3d at 289

(risk of undue prejudice was minimized by the fact that jury was not told what

crime led to parole status). This factor weighs against admissibility.

      In considering the fourth and sixth factors, we examine the tendency of the

evidence to confuse or distract the jury from the main issues and the time required

to develop the evidence.     Gigliobianco, 210 S.W.3d at 641.            "Evidence that

consumes an inordinate amount of time to present or answer, for example, might

tend to confuse or distract the jury from the main issues." Casey v. State, 215

S.W.3d 870, 880 (Tex. Crim. App. 2007). Here, the amount of time the State

devoted to developing the evidence was not insignificant. The State presented the

evidence through the live testimony of four witnesses—Schiele's parole officers,

Booker and Philp, the Polk County Sheriffs Office dispatcher, Terry Valka, and

the officer who conducted Schiele's interview, Captain Childers. The witnesses'

testimony about Schiele's parole spanned approximately 50 pages of the 118-page

reporter's record of the guilt and innocence phase of the trial. The State also

presented a recording of Schiele's eight-minute phone call with Philp and the

interview by Childers. The interview video lasted approximately 24 minutes and

the portions related to the parole lasted less than five minutes.            Because a

significant portion of the evidence related to the challenged evidence regarding


                                          18
parole, we conclude that the fourth and sixth factors weigh against admissibility.

Cf Blackwell v. State, 193 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2006,

pet. refd) (factor neutral and favored neither admissibility nor exclusion of

evidence where four witnesses' testimony of extraneous offenses was not "unduly

lengthy").

      Under the fifth factor, we weigh any tendency of the evidence to be given

undue weight by a jury that has not been properly equipped to evaluate the

probative force of the evidence.      Gigliobianco, 210 S.W.3d at 641. Here, the

charge contained a limiting instruction.2 Absent evidence to the contrary, a jury is
presumed to follow the instruction set forth in the court's charge. Herrera v. State,

11 S.W.3d 412, 415-16 (Tex. App.—Houston [1st Dist] 2000, pet. refd).

Further, the testimony relating to Schiele's parole, interview video, and phone call

recording were not scientific or technical in nature. Thus, "nothing suggests that

the jury was not equipped to evaluate the probative force" of the evidence, and we

conclude this factor weighs in favor of admissibility. See Moreno v. State, 409

S.W.3d 723, 731 (Tex. App.—Houston [1st Dist.] 2013, pet. refd) (fifth factor


2
      The charge instructed: "[E]ven if you find that the State has proven, beyond a
      reasonable doubt, the defendant's guilt of these other offenses, wrongs, or acts, if
      any, you may only consider such evidence as evidence of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake or accident, in
      relation to the offense for which defendant is on trial or to rebut a defensive theory
      of the case, and you may not consider these offenses, wrongs, or acts, if any, for
      any other purpose."

                                            10
weighs in favor of admissibility where evidence was not technical or scientific in

nature and was "comprehensible by laypeople").

    In support of his argument that the probative value of this evidence was

substantially outweighed by the danger of unfair prejudice under Rule 403, Schiele

cites Powell v. State, 151 S.W.3d 646, 650-54 (Tex. App.—Waco 2004), rev'd,

189 S.W.3d 285. But the Court of Criminal appeals reversed that Waco Court of

Appeals decision as to the Rule 403 balancing test and held that the probative

value of the evidence was not substantially outweighed by the danger of unfair

prejudice. See Powell, 189 S.W.3d at 287-90. Accordingly, Powell does not

support Schiele's argument. See id.

      We conclude that three of the Gigliobianco factors weigh in favor of

admissibility while three weigh against it. Accordingly, we conclude that the trial

court did not abuse its discretion in admitting the following challenged evidence:

that Schiele was on parole, failed to report to Philp on February 6 and February 7,

used methamphetamine on February 6, disconnected his electronic monitoring

device on February 7, and lied to Philp about why he failed to report on February 6

and February 7. See Powell, 189 S.W.3d at 289 (probative value of evidence was

not substantially outweighed by danger of unfair prejudice where jury was not

informed of crime for which appellant was on parole and State had significant need




                                        ?n
for evidence); Moses, 105 S.W.3d at 627 (trial court's admission of extraneous

offense evidence is reviewed for abuse of discretion).

      Our analysis of the remaining challenged evidence—that Schiele missed an

anger management class on February 6 and had his parole revoked before February

6, 2012—is different. With respect to this evidence, we conclude that even if it

was error to admit it, the error would have been harmless in light of the other

admissible evidence relating to parole discussed above.

      The jury considered evidence that Schiele was on parole at the time of the

fire, failed to report to Philp on February 6 and February 7, used methamphetamine

on February 6, disconnected his electronic monitoring device on February 7, and

lied to Philp about why he failed to report on February 6 and February 7. We have

held that the admission of this evidence was not an abuse of discretion. In light of

this other properly admitted evidence relating to parole, it is unlikely that the

additional fact that Schiele missed an anger management class and previously had

his parole revoked would impact the jury's decision. This is particularly true in

light of Philp's direct testimony that she warned Philp on February 6 that failing to

report on February 7 would lead her to request an arrest warrant. See Davis v.

State, 203 S.W.3d 845, 853 (Tex. Crim. App. 2006) (appellate court must

determine whether erroneous admission of inadmissible hearsay "moved the jury

from a state of non-persuasion to one of persuasion of a particular issue"); Motilla


                                         71
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (harmless error if jury's

decision likely was not adversely affected by the error); Wesbrook v. State, 29

S.W.3d 103, 119 (Tex. Crim. App. 2000) (reviewing court considers probable

impact of error on jury in light of existence of other evidence).

      We overrule Schiele's second, third, fourth, fifth, sixth, seventh, eighth, and

ninth issues.


                Admissibility of Prior Conviction in Punishment Phase

      In his tenth issue, Schiele contends that the trial court erred in admitting,

during the punishment phase, evidence of a prior conviction for injury to a child

because the State failed to properly link the conviction to Schiele.

A.     Standard of Review and Applicable Law

      To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) the prior conviction exists, and

(2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007). "No specific document or mode of proof is required

to prove these two elements." Id. "There is no 'best evidence' rule in Texas that

requires the fact of a prior conviction be proven with any document, much less any

specific document." Id. The State may prove these two elements by documentary

proof, such as a judgment, that contains sufficient information to establish both the




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existence of a prior conviction and the defendant's identity as the person convicted.

Id. at 922.


       The trier of fact considers the totality of the evidence admitted and attempts

to fit the evidentiary pieces of the puzzle together, weighing each piece's

credibility. Id. at 923. "Regardless of the type of evidentiary puzzle pieces the

State offers to establish the existence of a prior conviction and its link to a specific

defendant, the trier of fact determines if these pieces fit together sufficiently to

complete the puzzle." Id. If the two necessary elements "can be found beyond a

reasonable doubt, then the various pieces used to complete the puzzle are

necessarily legally sufficient to prove a prior conviction." Id.

B.     Analysis

       During the punishment phase, the State offered exhibits to prove its

enhancement allegations—a prior conviction for the felony offenses of burglary

and retaliation—as well as to prove Schiele's prior conviction for injury to a child

in Oklahoma. In support of Schiele's prior conviction for injury to a child, the

State offered: (1) a copy of the case summary, (2) a copy of the "plea of guilty

summary of facts," and (3) a copy of the judgment.

       Schiele objected and argued that the copy of the case summary did not

contain a fingerprint or thumbprint, the plea record was not a certified copy and




                                           o%
contained no thumbprint, and that the copy of the judgment was not a certified

copy, was not a public record, and contained no thumbprint.

      But "[n]o specific document or mode of proof is required to prove these two

elements," see Flowers, 220 S.W.3d at 921, and we conclude that the trial court did

not err in admitting the evidence about which Schiele complains. The copy of the

case summary for the injury to a child case contains Schiele's name, date of arrest,

charged offense, judicial cause number, and disposition. The plea record contains

Schiele's name, birth date, the same judicial cause number as the case summary,

and the last four digits of Schiele's social security number. The judgment contains

Schiele's name, birth date, the same judicial cause number as the case summary

and plea record, and the same last four digits of Schiele's social security number as

the plea record. Further, Lucas, Schiele's wife, testified that Schiele was arrested

for injury to a child in Oklahoma and that the plea record states the charged offense

and the date of the arrest, which matches the date on the case summary.

Additionally, the trial court admitted penitentiary packets ("pen packs") containing

documents from the Texas Department of Criminal Justice. The pen packs include

documents relating to Schiele's other prior convictions and include Schiele's name

and birth date, which match the case summary, plea record, and judgment for his

injury to a child conviction. Based on the totality of the evidence, we hold that the

State produced evidence from which the jury rationally could link Schiele to the


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           injury to a child conviction beyond a reasonable doubt. See Flowers, 220 S.W.3d

           at 921 (certified copy of computer printout from county clerk setting out prior

           conviction with cause number and appellant's name, date of birth, address, and

           social security number matching exhibit containing appellant's official driver's

           license record was sufficient to prove existence of appellant's prior conviction);

           Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th Dist.] 2010, pet.

           refd) (factfinder considers totality of evidence to determine whether State proved

           prior conviction beyond a reasonable doubt). Accordingly, the evidence is legally

           sufficient to prove the prior convictions and enhancement allegation.

                 We overrule Schiele's tenth issue.

                                              Conclusion

           We affirm the trial court's judgment.


                                                           Rebeca Huddle
                                                           Justice


           Panel consists of Justices Jennings, Higley, and Huddle.

           Do not publish. Tex. R. App. P. 47.2(b).




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