      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00530-CR



                                   Wardell Moore, Appellant

                                                 v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
          NO. 2005R-027, HONORABLE DAN R. BECK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The jury convicted Wardell Moore of the offense of aggravated assault with a deadly

weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2006). Punishment was assessed at

75 years’ imprisonment. In a single point of error, Moore challenges the admissibility of evidence

relating to a prior aggravated assault conviction. We affirm the judgment.


                                        BACKGROUND

               The jury heard evidence that in the early morning hours of January 30, 2005,

Schulenburg Chief of Police Randy Mican was dispatched to the residence of Evelyn “Bonnie”

Wright in response to a 911 call. According to the testimony of the 911 operator who received the

call, the caller, who did not identify herself, reported that Wright’s throat had been cut by Moore.

An audiotape recording of the 911 call was played for the jury.
               Chief Mican testified that Moore was present when he arrived at the crime scene and

that Mican immediately took Moore into “protective custody” because several people were standing

around the house who “seemed to be hostile” towards Moore. When he took Moore into custody,

Mican “noticed blood on [Moore’s] hands.” There was also blood on Moore’s shirt. Blood samples

taken from Moore’s shirt later tested positive for Wright’s DNA.

               Stacey Martin, another Schulenburg police officer, later arrived at the scene. Martin

checked on the status of the victim inside the house, determined that Wright’s injuries were severe,

and called a medic to ensure that Wright was transported to the nearest hospital. Later, Martin had

a conversation with one of the bystanders, Freddie Ray Houston, who told him that the weapon

Moore used to cut Wright was in the backyard and then pointed it out to him. Martin identified the

weapon as a box cutter. Chief Mican also observed the box cutter that night and testified that it had

blood on it. Samples of the blood tested positive for Wright’s DNA.

               Several witnesses testified about events prior to the officers’ arrival at Wright’s

house. Moore’s brother, Robert, testified that he had walked by the house on the night in question

and visited with Ms. Wright. Robert testified that when he was talking with Wright, he saw that his

brother was also in the house. Robert noticed that Moore had a box cutter “at the bottom of his leg.”

This concerned Robert, and he testified that he warned Wright that Moore had a box cutter.

According to Robert, Wright responded that she was not worried about Moore.

               Wright also testified. She explained that both Moore and another man, Allen

Jackson, were living at her house around the time of the incident. All three of them had been at a

party that evening. Each of them returned home separately at different times. Wright testified that,



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after Moore arrived home, she was in the kitchen cleaning. Jackson was in his bedroom and Moore

was in the living room. As Wright was about to put some beer into her refrigerator, Moore came into

the kitchen and told her, “Don’t touch that [expletive] beer.” Wright responded, “Wardell, this is

not your beer.” However, because Moore sounded drunk, Wright decided to let him have the beer

and turned around to wash the dishes. Wright testified that Moore came up behind her and told her

that if she touched the beer, he was going to cut her throat. Wright did not believe him and

continued washing the dishes. The next thing Wright knew, she felt something warm across her

throat. She thought it was sweat. She reached up, wiped her throat, and saw that it was blood.

Wright testified that she turned around and saw that Moore was “fixing to cut again.” She threw her

arm up to defend herself and Moore cut her across her arm. Wright then fell backwards into the

refrigerator as Moore continued “slashing” at her. Wright testified that she did not remember

anything after that.

               Allen Jackson testified that he found Wright lying on the floor with her throat slashed,

cut in several places. Jackson also testified that he saw Moore standing near her with a box cutter.

Jackson told Moore that he needed to leave, and, according to Jackson, Moore went outside. Jackson

also left the scene and began running from house to house to find a phone so he could call 911.

During Jackson’s testimony, as will be discussed in more detail below, the State introduced evidence

of Moore’s prior conviction for aggravated assault in an altercation involving Jackson.

               Two of the bystanders at the crime scene, Freddie Ray Houston and his sister, Tameka

Houston, also testified for the State. Freddie Ray testified that Allen Jackson ran over to his sister’s

house, where Freddie Ray was staying that night, and told him that Moore had cut Wright’s throat.



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Freddie Ray informed Tameka of Jackson’s statement. Tameka called 911, and the pair then went

to Wright’s house. Both Freddie Ray and Tameka recounted that once they arrived at the house, they

could see Wright through the front door, holding her throat and “walking around staggering, trying

to get to the door.” Freddie Ray tried to open the door, but Moore, who had apparently re-entered

the house, “jumped from behind the door and swung a blade” at him. According to Freddie Ray,

Moore told him, “Get back. You’re not getting in.” At this point the police arrived and, Freddie Ray

testified, Moore “ran out the back door and pitched the blade.” At trial, Freddie Ray testified that,

after Moore was arrested, he asked Moore if and why he cut Wright’s throat. According to Freddie

Ray, Moore at first denied such acts, but then started smiling and admitted, “It was over a beer.”

Freddie Ray testified that he did not have any doubt that Moore cut Wright’s throat.1

               The jury convicted Moore of aggravated assault with a deadly weapon and

punishment was assessed at 75 years’ imprisonment. This appeal followed.


                                           DISCUSSION

               In a single point of error, Moore argues that the district court abused its discretion in

admitting evidence relating to his prior conviction for aggravated assault. The evidence at issue was

admitted during Jackson’s testimony. During Moore’s cross-examination of Jackson, the following

exchange occurred:




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           Three other witnesses, Chief Mican, Tameka Houston, and Moore’s brother, Robert, also
testified that they did not have any doubt that Moore cut Wright’s throat. Moore objected to this
testimony from Chief Mican, but the district court overruled the objection. Moore did not object to
this testimony from the other witnesses.

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       Q:      Have you had disputes with Mr. Moore, Wardell Moore?

       A:      Have I had disputes with him?

       Q:      Yes.

       A:      Not as I recollect.

       Q:      Were you all on friendly terms?

       A:      Well, just a hi and bye terms.


Later, Moore again asked Jackson about his prior relationship with Moore:


       Q:      You ever had a fight with Mr. Wardell Moore?

       A:      What does that have to do with this case?

       Q:      I’m just asking you.

       A:      I never had a fight with Wardell Moore.


               Immediately after this exchange, Moore passed the witness and the State asked for

a bench conference. The State argued to the district court that Moore had “opened the door” for

admitting evidence relating to Moore’s prior conviction for aggravated assault in an incident

involving Jackson. Moore disagreed, arguing that Jackson’s denial of the fight prevented the door

from being opened. The district court agreed with the State: “I think it did open the door. We will

let you talk about it.” The State then proceeded to ask Jackson in redirect:


       Q:      Okay. Mr. Halpain asked you some questions about you getting into a fight
               with Wardell Moore. Have you ever fought with Wardell Moore?

       A:      No.

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       Q:      But there was an incident between you and Wardell Moore, right?

       A:      There was an incident, yes.

       Q:      In fact, Wardell Moore - you have testified against him before, haven’t you?

       A:      Yes. On my own personal case.

       Q:      Okay. That was a criminal case, wasn’t it?

       A:      Yes.

       Q:      In fact, that scar on your chin, that’s a cut that Wardell Moore did to you,
               isn’t it?

       A:      Yes.

       Q:      Wardell Moore was convicted of doing that, wasn’t he?

       A:      Yes, he was.


               Moore did not object to any of this testimony. The State then proceeded to show

Jackson pictures depicting his injuries2 and asked Jackson to identify the pictures:


       Q:      Okay. And all three of those pictures are different angles of the wound that
               you received from Wardell Moore?

       A:      Yes.

       Q:      What did Wardell Moore use to cut you?

       A:      A box cutter.




       2
          Moore objected to the admission of the pictures, stating without explanation, “It deals with
a prior issue that I think you barred from these proceedings.” The district court overruled this
objection.

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       Q:      Okay. When Wardell Moore was convicted, he went to the penitentiary,
               correct?

       A:      Yes.

               On appeal, Moore objects to the admission of his prior conviction on the basis of rule

of evidence 609(a). Rule 609(a) provides:


       For the purpose of attacking the credibility of a witness, evidence that the witness has
       been convicted of a crime shall be admitted if elicited from the witness or established
       by public record but only if the crime was a felony or involved moral turpitude,
       regardless of punishment, and the court determines that the probative value of
       admitting this evidence outweighs its prejudicial effect to a party.


Tex. R. Evid. 609(a).


               We first note that rule 609 applies to situations in which the witness has been

convicted of a crime and the proponent of the evidence is seeking to attack the credibility of that

witness. That was not the situation here. Jackson was the witness, not Moore, and the State

introduced Moore’s prior conviction not as impeachment evidence, but as extraneous offense

evidence under rule 404(b). 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). The record reflects and Moore does not dispute that the State provided Moore

with reasonable notice of its intent to introduce extraneous offense evidence.



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               Before turning to admissibility, however, we must address the State’s contention that

Moore failed to preserve error on that issue. To preserve error, the complaining party must make

a timely, specific objection and obtain a ruling on the objection. See Tex. R. App. P. 33.1(a). The

objection must be made at the earliest possible opportunity. Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002). The point of error on appeal must correspond to the objection made

at trial. Carmona v. State, 941 S.W.2d 949, 957 (Tex. Crim. App. 1997). To preserve error related

to the admission of extraneous offenses, the defendant must timely object that the evidence is

inadmissible under rule 404(b), at which point the State must show that the proffered evidence is

relevant apart from its tendency to show that the defendant is a criminal. Lockhart v. State,

847 S.W.2d 568, 573 (Tex. Crim. App. 1992). If the trial court determines that the evidence is

relevant, the defendant must object further under rule 403. Id.

               Moore did not make objections under rules 404(b) or 403. In fact, during the bench

conference, Moore failed to state a specific objection to the evidence or argue a specific reason why

the evidence was inadmissible. Moore did not argue that the evidence was irrelevant, more

prejudicial than probative, or improper for any other reason. Instead, Moore simply argued that his

questions and Jackson’s testimony did not “open the door” to evidence about Moore’s prior

conviction. Moore lodged no other complaints. Additionally, all of Jackson’s subsequent testimony

about Moore’s prior conviction was admitted without a single objection from Moore. Moore

objected only to the later admission of the pictures of Jackson’s injuries, and even this objection was

vague, with Moore simply stating, “It deals with a prior issue that I think you barred from these

proceedings.” We agree with the State that Moore failed to preserve error.



                                                  8
               But even assuming that Moore preserved his complaint, any error in admitting the

evidence would not be reversible because it was harmless. The erroneous admission of evidence is

nonconstitutional error.   Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Nonconstitutional error that does not affect substantial rights must be disregarded. See Tex. R. App.

P. 44.2(b). There was considerable evidence establishing Moore’s guilt apart from Moore’s prior

conviction. See Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002) (“[E]vidence of the

defendant’s guilt is a factor to be considered in any thorough harm analysis.”). Ms. Wright, the

victim, identified Moore as her attacker and described his attack in graphic detail. Multiple

witnesses, including Moore’s brother, Chief Mican, and Freddie Ray and Tameka Houston, were

allowed to testify that they had “no doubt” that Moore cut Wright’s throat. Jackson testified that

when he found Wright on the ground, Moore was standing near her with a box cutter in his hand.

Freddie Ray and Tameka Houston testified that Moore prevented them from entering Wright’s house

when they arrived and tried to help her. Freddie Ray testified that Moore swung a “blade” at him

when he tried to open the door. Freddie Ray was also allowed to testify that, when he asked Moore

if and why he cut Wright’s throat, Moore at first denied such acts, but then started smiling and

admitted, “It was over a beer.” Officer Mican testified that when he placed Moore in custody, Moore

had “blood on his hands.” Furthermore, blood found on Moore’s shirt and the box cutter found at

the scene tested positive for Wright’s DNA. Additionally, we note that the State did not emphasize

Moore’s prior conviction. In fact, the State did not even mention it during its closing argument. See

id. at 356 (whether State emphasizes error is factor to be considered in harm analysis).

               We overrule Moore’s point of error.



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                                        CONCLUSION

              Having overruled Moore’s point of error, we affirm the judgment of the district court.




                                             ___________________________________________

                                             Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: August 9, 2007

Do Not Publish




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