                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00015-CR


ANDY FIELDS                                                            APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1463549R

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                         MEMORANDUM OPINION1

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      Appellant Andy Fields appeals his third-degree felony conviction for

committing assault against a member of his family or household or against

someone with whom he had a dating relationship while having a prior conviction

for that offense.2 In one point, he argues that the trial court abused its discretion


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2017).
by admitting, over his relevance objection, one page of an exhibit that the State

offered to establish the prior assault conviction. We affirm.

                                   Background

      One Sunday in July 2015, R.A. (Rebecca) was relaxing at her house with

her twenty-year-old daughter T.A. (Tamara)3 and her two grandchildren. Fields,

who had been in an off-and-on intimate dating relationship with Rebecca, arrived

uninvited at the house and walked into Rebecca’s bedroom. Rebecca asked him

why he was there and told him to leave. He refused, so Rebecca grabbed a

backpack and a jacket that Fields had brought into the house and threw them

outside.

      According to Rebecca, at that point, Fields became angry.            After he

verbally sparred with her for a few minutes, he began hitting her face and chest

as she attempted to push him off. Rebecca yelled for Tamara, who was asleep,

to call 9-1-1. Tamara awoke, went to Rebecca’s room, saw Fields restraining

Rebecca in a choke hold and hitting her, and attempted to get him off of her.

Fields responded by hitting Tamara and by threatening to push her down some

stairs. Tamara called 9-1-1, and Fields left the house.

      Greg Brooks, a Benbrook police officer, received a dispatch about the

assault and began looking for a suspect whom the dispatcher described as

shirtless and as wearing white shorts and blue shoes.           Officer Brooks found

      3
        We use aliases to protect the anonymity of R.A. and T.A. See McClendon
v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


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Fields, who matched the description, sitting on a porch in the same neighborhood

as Rebecca’s house.         When Officer Brooks approached Fields, Fields gave

Officer Brooks an incorrect date of birth. Fields later admitted to Officer Brooks

that he had done so and gave his correct date of birth. Officer Brooks noticed

that Fields was sweaty and had fresh scratches on his back, neck, face, and

chest.       Fields told Officer Brooks that he had been in an argument with his

girlfriend and that his girlfriend’s daughter had assaulted him.

         Benbrook police officer James Hatton also received a dispatch about the

assault and went to Rebecca’s house.          When Officer Hatton walked into the

house, he noticed blood on a wall, on a stairwell, in a bathroom, and on a chair.

He also saw that several items had been “thrown about.” To Officer Hatton,

Rebecca appeared hysterical; she was screaming, shaking, crying, and wincing

because of pain near one of her eyes.4 Rebecca told Officer Hatton that Fields

had accused her of “sleeping around,” that Fields had punched her, and that she

had attempted to defend herself against the assault. Officer Hatton noticed that

Rebecca’s face was swollen and that her hand was bleeding. He also noticed

that Tamara had a red scratch on her arm. He concluded that Fields was the

aggressor, relying in part on the fact that Fields was less credible because he

had lied to Officer Brooks about his date of birth. John Whiteside, a detective




        At trial, Officer Hatton described Rebecca as “one of the most upset
         4

reporting persons [he had] ever come across.”


                                          3
with the Benbrook Police Department, joined Officer Hatton at the crime scene.

He concurred with Officer Hatton’s conclusion that Fields was the aggressor.

      A grand jury indicted Fields with assaulting Rebecca by striking her face or

by squeezing her neck. For jurisdictional purposes, the indictment alleged that

Fields had a prior conviction for assault against a member of his family or

household or against someone with whom he had a dating relationship. For

sentence-enhancement purposes, the indictment also alleged that Fields had two

prior felony convictions.

      At a jury trial, Fields pleaded not guilty, and he pleaded not true to the

indictment’s enhancement allegations.       Through his cross-examination of the

State’s witnesses and through his closing argument, Fields proposed to the jury

that he had acted in self-defense.      Rebecca testified that Fields had been

previously convicted for assaulting her and that he had a history of abusing her.

The trial court admitted documentary evidence of Fields’s prior misdemeanor

assault conviction. In the guilt-innocence jury charge, the court instructed the

jury about the law of self-defense.

      The jury found Fields guilty. The jury then heard further evidence and

arguments concerning his punishment, found the indictment’s sentence-

enhancement allegations true, and assessed fifty years’ confinement. The trial

court sentenced Fields accordingly, and he brought this appeal.




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                            Admission of Evidence

      In his only point, Fields contends that the trial court abused its discretion

by overruling his relevance objection to one page of State’s Exhibit 20, which the

State offered to establish his prior conviction for assault against a member of his

family or household or against someone with whom he had a dating relationship.

See Tex. Penal Code Ann. § 22.01(b)(2)(A) (making assault against a member of

a family or household or against someone with whom the defendant has a dating

relationship a third-degree felony if the defendant has another conviction for that

offense).

      State’s Exhibit 20 contains four pages. The first page is a docket sheet

stating that in November 2014, Fields pleaded guilty to a misdemeanor, was

convicted, and received a sentence of ninety days’ confinement. The second

page is the judgment related to that conviction; the judgment states that Fields

pleaded guilty to “ASSAULT BODILY INJURY-FM,” a class A misdemeanor. The

third page is a charging instrument alleging that in September 2014, Fields

assaulted Rebecca by striking her upper body with his hand. The fourth page is

an earlier-filed complaint for the same case, alleging, unlike the charging

instrument, that Fields assaulted Rebecca by applying pressure to her neck or

throat with his hand and by impeding her breathing.5


      5
       This complaint alleged a felony assault. See Tex. Penal Code Ann.
§ 22.01(b)(2)(B). The charging instrument to which Fields pleaded guilty in 2014,
which omitted the allegations about Fields applying pressure to Rebecca’s neck
and impeding her breathing, alleged a misdemeanor assault.               See id.

                                        5
      On appeal, Fields contends that page four was inadmissible because it

bore “no relevance to the jurisdictional conviction, which [was] for misdemeanor

assault bodily injury.”   He argues that page four’s admission harmed him

because that page “introduced an extraneous offense to the guilt or innocence

phase of the trial.”

      We conclude that we need not decide whether the trial court abused its

discretion by admitting page four because any such error did not result in harm

that justifies reversing Fields’s conviction.6 See Tex. R. App. P. 44.2(b).

      We must disregard any nonconstitutional error that does not affect an

appellant’s substantial rights.7 See id. An error affects an appellant’s substantial

rights when it has a substantial and injurious effect or influence in determining

the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)

(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253

(1946)). Conversely, an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or had but a slight effect.”




§ 22.01(a)(1), (b). In response to Fields’s relevance objection in the trial court, a
prosecutor argued, “It’s a document under seal. I mean, it’s a certified copy of a
judgment.” The trial court overruled Fields’s objection without explaining its
reasoning.
      6
     An error analysis is not required when a harm analysis is dispositive. See
Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013).
      7
       Fields concedes that the trial court’s alleged error was “not constitutional
in nature” and that rule 44.2(b)’s harmless error standard applies.


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Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56. We must determine whether the error likely moved

the jury from a state of nonpersuasion to a state of persuasion concerning

Fields’s guilt. See Snowden v. State, 353 S.W.3d 815, 825 (Tex. Crim. App.

2011); Murkledove v. State, 437 S.W.3d 17, 29 (Tex. App.—Fort Worth 2014,

pet. dism’d).

      We first consider the alleged error in context with other evidence and in

light of Fields’s defensive theory.   Motilla, 78 S.W.3d at 355.    As explained

above, Fields’s theory in the trial court was that he acted in self-defense during

the altercation with Rebecca and Tamara.       To evaluate this theory, the jury

considered first-hand accounts of the altercation from Rebecca and Tamara and

Fields’s challenges to those accounts through cross-examination. The jury also

considered an audio recording of Tamara’s 9-1-1 call; testimony from officers

who interacted with Fields, Rebecca, and Tamara shortly after the altercation and


                                        7
observed their demeanor; and photographs of Fields’s and Rebecca’s injuries

and of the state of Rebecca’s home following the altercation. In the context of

this evidence that focused the jury’s attention on the charge at issue, we cannot

conclude that the jury likely predicated its decision of Fields’s guilt on page four’s

extraneous allegation.8    Furthermore, even if the jury was prone to base its

decision to convict Fields on his prior misconduct rather than on testimony and

evidence related to the July 2015 assault, page four’s allegation of such

misconduct was not likely as compelling as Rebecca’s and Tamara’s testimony—

received by the jury without objection—that Fields had repeatedly abused

Rebecca in the past.

      We next consider the alleged error in light of the trial court’s jury charge.

See id. The trial court’s guilt-innocence jury charge instructed the jury that it

could not consider evidence of Fields’s extraneous offenses unless it found

beyond a reasonable doubt that he had committed them.              The charge also

instructed the jury that even if it made such a finding, it could consider the

offenses only for determining “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident, if any, in connection with

this offense.” We presume that the jury followed these instructions and therefore

did not consider page four’s allegation as evidence of Fields’s guilt for the July


      8
       As the State argues, the record reflects that the jury sent notes to the trial
court during deliberations, including a note asking to see “pictures of the parties
involved,” but does not reflect that the jury requested to review State’s Exhibit 20.


                                          8
2015 assault. See Casanova v. State, 383 S.W.3d 530, 543 (Tex. Crim. App.

2012) (reciting the “usual presumption that jurors follow the trial court’s explicit

instructions to the letter”).

       Finally, we consider whether the State emphasized the error. See Motilla,

78 S.W.3d at 355. The State did not emphasize page four’s allegation (that

Fields had choked Rebecca and had impeded her breathing during his

September 2014 assault) during its questioning of Rebecca or during its closing

argument. Instead, during Fields’s cross-examination of Rebecca, he elicited

testimony concerning the allegation.

       For all of these reasons, we cannot conclude that the trial court’s alleged

error in admitting page four of State’s Exhibit 20 affected Fields’s substantial

rights. See Tex. R. App. P. 44.2(b); Motilla, 78 S.W.3d at 355. Because the

record does not reveal reversible error, we overrule Fields’s sole point.

                                    Conclusion

       Having overruled Fields’s only point, we affirm the trial court’s judgment.



                                                    /s/ Wade Birdwell
                                                    WADE BIRDWELL
                                                    JUSTICE

PANEL: SUDDERTH, C.J.; PITTMAN and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018



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