                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 DA-NA ALLEN,                                                       No. 08-07-00326-CR
                                                  §
                   Appellant,                                         Appeal from the
                                                  §
 V.                                                                 205th District Court
                                                  §
 THE STATE OF TEXAS,                                              of El Paso County, Texas
                                                  §
                   Appellee.                                        (TC#20060D02219)
                                                  §

                                                  §

                                           OPINION

       Da-na Allen appeals his conviction for murder. A jury found Appellant guilty, and the

court assessed punishment at 38 years’ imprisonment. Finding no reversible evidentiary error,

and overruling Appellant’s legal and factual sufficiency challenges, we will affirm.

       On February 28, 2006, Teresa McCowan Allen was found beaten to death, lying

underneath a semi-truck trailer at a truck stop near Interstate 10 in Soccoro, Texas. The area

consists of roadside motels, a bar known as “Sal’s Lounge,” a McDonald’s restaurant, and other

roadside businesses. It is known to be home to a number of homeless men and women, who

frequently live in the vacant desert area beyond the businesses and restaurants. The responding

officers noted a pool of blood under the victim’s head, and due to the body’s location, began

investigating the scene as a hit-and-run motor-vehicle accident. The first officers to arrive on the

scene also noticed that the woman’s jacket was pulled up, as if she had been dragged, and

testified that aside from some shards of broken plastic, which may have broken off a vehicle,

there were no tire tracks or other signs of a vehicle accident.
       The woman did not have any identification, but the officers did find a key to room forty-

six in the nearby Deluxe Inn in her pocket. After securing the scene, the officers contacted the

manager on duty at the motel. The manager confirmed that a man and woman had been living in

the room for about six months. The couple paid “daily rent” for the room. The manager escorted

the officers to the room, and after the officers knocked on the door for approximately five

minutes with no response, the manager opened the room with his own key. Inside, there was a

chair positioned against the door, and Appellant was lying on the bed. The officers asked

Appellant if anyone else lived in the motel room with him, and he told them his wife lived there

also. When they asked when Appellant had last seen his wife, Appellant said he had not seen her

in over two days. When Appellant’s description of his wife’s clothing matched that of the

victim, the police confirmed the identification and informed Appellant that his wife had been

found dead nearby. During the conversation, Appellant remained calm and seemed more

concerned with getting to the motel manager’s office to purchase cigarettes.

       Once the body was transferred to the morgue for autopsy, the medical examiner

determined the injuries were not consistent with a hit-and-run, and ruled Mrs. Allen’s death a

homicide. According to the medical examiner, the victim had three well defined lacerations on

her head. He testified they were most likely caused by a heavy metal instrument’s impact. One

of the blows had been inflicted with such force that her scalp had split open and separated from

the skull. Another impact had fractured the skull and sent a piece of bone into the victim’s brain.

She also suffered five broken ribs, and her abdominal organs showed extensive hemorrhaging.

The examiner testified that although the head wounds were consistent with a metal instrument

similar to a tire iron, the other injuries were caused by numerous blows with a fist. There also


                                                -2-
were a number of surface abrasions on the body, as if she fallen to the ground over dirt or gravel.

Based on the hemorrhaging around the fractures and the organ damage, the examiner testified

that she was alive when she suffered the injuries. The swelling in her brain indicated that she

survived between half an hour and three hours after the injuries. Although a toxicology report

showed traces of methamphetamine, amphetamine, cocaine, and a cocaine by product called

benzoylecogonine, the examiner concluded the reported levels were relatively low, and that the

victim was not high at the time of her death. Ultimately, the examiner concluded that the cause

of Mrs. Allen’s death was multiple blows to the head with a tire iron, or an other similar metal

object. Her death was ruled a homicide. The autopsy report was completed on March 1, 2006.

       After receiving the medical examiner’s findings, El Paso County Sheriff’s Department

investigators returned to the truck stop to conduct preliminary interviews with local residents to

determine if anyone had any information about Mrs. Allen’s death. Detective Terrazas and

Detective Arriola went back to the area behind the McDonald’s restaurant and concentrated the

search back toward the Deluxe Inn. They encountered Ms. Elva Sanchez and Ms. Tina

Bommarito in the desert behind the McDonald’s. The detectives also encountered two men

whom other officers had talked to during the initial crime scene investigation, living near the

Deluxe Inn.

       The following day, Ms. Bommarito contacted police with information about Mrs. Allen’s

death. At trial, Ms. Bommarito testified that she met Mrs. Allen in the area near the McDonald’s

when they were both working as prostitutes at the truck stop. In the community, Ms. Bommarito

was known as “Qualified,” and Mrs. Allen was known as “Runaway.” Ms. Bommarito testified

that “Dakota,” Appellant’s nickname in the area, introduced himself to her in Sal’s Lounge on


                                                -3-
February 28, 2006. Ms. Bommarito said she remembered the date because everyone was

partying for Mardi Gras. Ms. Bommarito testified that Appellant introduced himself and told her

he knew she and his wife had “gotten into it” before, and that Ms. Bommarito did not need to

worry about his wife anymore because she was dead. At that point, all Ms. Bommarito knew was

that Mrs. Allen had been found dead nearby.

       Ms. Bommarito explained that she and Mrs. Allen did not get along. The two women had

gotten into an argument in 2005 over a customer or “John” and Ms. Bommarito tried to stab

Mrs. Allen because the “John” had taken Mrs. Allen instead of her. Ms. Bommarito was

prosecuted for unlawfully carrying a weapon following the attack. After the incident,

Ms. Bommarito only spoke to Mrs. Allen one other time when she was walking out of the desert

behind the McDonald’s and saw Mrs. Allen sitting on a rock. When Mrs. Allen looked up, the

women exchanged a few words to each other, and Ms. Bommarito noticed that Mrs. Allen’s face

bore the injuries of a severe beating.

       Ms. Elva Sanchez, known in the community as “Little Bit” or “Polla,” also lived in the

desert behind McDonald’s. She testified that she knew “Dakota” and “Runaway” were married,

that the couple sold drugs, and that “Runaway” prostituted to make money. Ms. Sanchez

explained that Mrs. Allen was rarely seen without her husband nearby, and that she would try to

hide when the couple had an argument. Even when Mrs. Allen was working, Appellant stayed

near the trucks. Ms. Sanchez testified that Mrs. Allen would not speak to her in front of

Appellant, and that she saw Appellant beat Mrs. Allen several times prior to Mrs. Allen’s death.

Ms. Sanchez also heard Appellant threaten his wife and call her names. Appellant never let his

wife go anywhere by herself, and when Mrs. Allen would leave town to get away, he would find


                                               -4-
her and bring her back.

        Ms. Sanchez saw the couple together in the late afternoon on the day Mrs. Allen was

killed. She remembered that Mrs. Allen had scratches on her face, and that she was walking in

front of her husband, kicking the dirt as she went. Ms. Sanchez asked Mrs. Allen what was

wrong, and Mrs. Allen just put her head down and said, “Nothing Polla, no,” and then walked

away. Later that evening, Ms. Sanchez saw the police lights and learned that Mrs. Allen was

dead.

        Willard Crosby, Jr. rented a room to Appellant and Mrs. Allen in his trailer for

approximately six months during 2005. The couple paid rent by supplying Mr. Crosby with

cocaine. He and Appellant often panhandled together in order to make money. Mr. Crosby

testified that during the time the couple lived with him, they fought constantly. He also testified

that he found out about Mrs. Allen’s death the day after she was murdered. Appellant told

Mr. Crosby that he killed his wife in their motel room and then dumped the body.

        Monica Cebollos and Robert Austin worked in businesses near the truck lot where

Mrs. Allen’s body was found. Ms. Cebollos worked in the McDonald’s in early March 2006, and

testified that although she did not know who Mrs. Allen was at the time, she had seen Mrs. Allen

in the restaurant on a few occasions. She was working a 5 p.m. to midnight shift the day of the

murder, and told investigators that she saw one of the “regulars,” who was later identified as

Appellant, in the restaurant at approximately 7 p.m., and remembered he was alone.

        Robert Austin was a manager at the Deluxe Inn where Appellant and his wife lived for

six to eight months. He testified that during the time the couple lived at the motel, he

occasionally saw Mrs. Allen with bruises on her body, and once he saw her with a black eye.


                                                -5-
When asked about the couple’s relationship, he stated that “[s]ometimes it was a good

relationship. Sometimes there was a bad relationship.” On two occasions, Mr. Austin called the

room where Appellant and his wife stayed out of concern for Mrs. Allen’s safety. On the first

occasion, Mr. Austin noticed a “suspicious” hole in the room’s window, and although the lights

were off, he knocked on the door to make sure everyone was alright. When there was no

response to his knock, Mr. Austin went back to his office to call the room. Eventually, Appellant

answered the phone. Mr. Austin asked if everything was alright, and if he could speak to

Mrs. Allen because he was concerned about her safety. Mr. Austin heard Appellant say to his

wife, “[t]he guy in the office, talk to the mother-fucker in the office. He wants to make sure you

are okay.” Mr. Austin heard Mrs. Allen say something in the background before Appellant told

him Mrs. Allen did not want to talk to him. Because he heard Mrs. Allen’s voice, Mr. Austin did

not feel the need to continue the conversation, and he hung up the phone. On another occasion,

Mr. Austin received a phone call from the couple’s room, and although he did not testify what, if

anything the caller said to him, he did see the couple leave the room thirty minutes later. As

Mrs. Allen left, Mr. Austin noticed that she looked like she had been beaten. Her check was red,

as though she had been punched. The morning after the murder, Appellant approached

Mr. Austin in the motel manager’s office to ask for a loan. After Mr. Austin finished attending

to another customer, Appellant told him not to let the maid clean the room because he had

already cleaned it.

       The police returned to further interview Appellant on March 8, 2006. Detectives Terrazas

and Garcia picked Appellant up at the Deluxe Inn and transported him to a sheriff’s department

substation where Appellant made a voluntary statement. After Appellant signed the statement,


                                                -6-
he was placed under arrest for his wife’s murder. In the statement, Appellant admitted that he

and his wife were homeless, and lived off what money she made as a prostitute and what money

he could make cleaning trucks and selling small amounts of drugs. He admitted his wife had

friends, other prostitutes, who where known in the area as “Polla” and “Shady Lady.” He and

Mrs. Allen lived in a trailer for some time with a man known as “Junior” and who Appellant

referred to as “Willard.” Appellant recalled the details of their work situation:

               I couldn’t take living in the desert for very long. I needed a roof over my
       head, a bed, a television and somewhere to bathe.

              At first I was cool with Teresa prostituting because we made money and it
       was free sex. I was polishing, selling drugs and flying a sign but after I fell in
       love with Teresa, I wasn’t so cool on her working.

              I told the officers that the black ledger that they picked up from my room
       contained the names of her Johns. She had some regular customers that would
       come in and she would have sex with.

               The way we worked was I would escort her to the trucks behind the truck
       stops predominantly behind the McDonald’s on Horizon Boulevard. I would walk
       behind the truck while she walked the front line hitting up the drivers for sex.

               She would approach them from the driver’s side. If she hooked a driver, I
       would write down the license place number and waited for her to finish. I would
       not allow her to leave with any of the drivers.

              One time she drove off on me and we got in a big fight and I had to hit her
       because I got pissed off. She told me that they had gone to an ATM machine for
       money but didn’t realize how much she had endangered herself by doing that.

              Sometimes Teresa would give me the drivers name and handle, CB radio
       handle which I would write down and then later throw away. We would write
       down the names and numbers of the customers that were regular, however, that
       she could call.

               A friend of mine . . . would work the CB and help her get customers.

                                       .          .         .


                                                -7-
               Sometimes Teresa would leave the door to the trucks open for safety while
       I would watch her back. I always made sure the money was given to Teresa up
       front and that she used condoms for safety.

Appellant went on to explain what he knew about his wife’s relationship with “Qualified” (Ms.

Bommarito). The day after his wife’s death, Appellant went to “Cadillacs” to meet with friends.

According to Appellant, while he was there, Ms. Bommarito approached the group, and when

someone asked her if she knew about Mrs. Allen’s death, Ms. Bommarito replied, “I sure did.

The bitch had it coming. I don’t give a fuck, the bitch had it coming for snitching me out.” Five

minutes later, Ms. Bommarito returned and apologized to Appellant.

       Appellant admitted that both he and his wife abused drugs. He said his wife would

“shoot up” with cocaine several times a day, and would start the day by buying a $20 bag of the

drug. Once it got dark, they would go to the McDonald’s parking lot to find “tricks” so

Mrs. Allen could make money. She usually worked for four to five hours, while Appellant

waited nearby.

       Appellant also told police that he had been arrested for domestic violence and aggravated

assault in the past. He explained, “I was arrested for hitting Teresa but only because I had no

choice. Teresa would do some stupid stuff like taking off on me or not knowing where she was

at.” Appellant also admitted to physically abusing his wife on other occasions.

              I was asked if I ever hit her when I told [the police] that I had. I would hit
       her with an open hand on her mouth and punch her with my fist on the arms when
       we fought.

              I also remember hitting her one time with a broomstick when we were in
       Dallas on her right shin bone because she had left with some john for three days.

             I was tired of her lying to me, spending money on drugs and spending
       money on the drivers. We often split up but always got back together.


                                                -8-
                I was also my wife’s punching bag. She could punch like a man. We
       finally learned to sit down and talk I learned to agree, how to disagree without
       violence.

       When asked whether Appellant and his wife fought the night she died, Appellant told the

police they had not, that they had not had a fight in two weeks. He told police that the morning

before she died, his wife woke him up at 5:30 p.m. to tell him she was going to work. He told

police that he fell asleep after she left and did not wake up until they knocked on his door.

According to the statement, Appellant and his wife had just finished a two or three-day drug

binge when his wife left the motel room.

       The jury found Appellant guilty, and the court sentenced him to thirty-eight years’

imprisonment. On appeal, Appellant raises six issues. Issues One through Four are presented as

follows: (1) “[t]he trial court erred in failing to redact all the extraneous offense mentioned in

Appellant’s confession thereby prejudicing Appellant and denying him the right to a fair trial;”

(2) “[t]he trial court erred by denying Appellant an extraneous offense limiting instruction at the

time Appellant’s second statement was admitted into evidence;” (3) “[t]he trial court erred by

denying Appellant an immediate extraneous offense limiting instruction to the jury each time it

was requested;” and (4) “[t]he trial court erred by denying Appellant an extraneous offense

limiting instruction in the jury charge.” Issues Five and Six challenge the legal and factual

sufficiency of the evidence supporting the conviction.

       As a preliminary matter, we must address the State’s argument that Appellant waived

Issues One through Four because Appellant presented them under a single heading, and failed to

delineate between the issues in his discussion and argument. The State argues that Appellant’s

briefing created a multifarious point of error, in violation of the Rules of Appellate Procedure,


                                                 -9-
and has thus waived the issues.

        Appellant’s brief purports to include six issues. However, having summarily concluded

that Issues One through Four “are all related,” Appellant’s brief fails to further delineate between

the specific issues raised. Appellant discusses his complaints regarding extraneous offense

evidence and the trial court’s limiting instructions without any reference to the “issues” he

presents for review. The discussion of Issues One through Four consists of sixteen pages of

argument without a single reference to the issue being addressed. Instead, the brief seems to

refer to the issues only by reference to their subject matter, and leaves this Court to guess where

one issue ends and another begins. In addition, other than conclusory statements, such as “[the

trial court] abused [its] discretion . . .,” “[the trial court’s] instruction . . . wasn’t sufficient to cure

the damage done to the Appellant,” and “Appellant’s conviction should be set aside and a new

trial ordered,” the brief does not state how Appellant would have this Court dispose of each issue

and thereby grant the relief he requests.

        By melding multiple issues together as this brief does, an appellant risks rejection of his

arguments on the basis that nothing has been presented for review. See Cuevas v. State, 742

S.W.2d 331, 335 n.4 (Tex.Crim.App. 1987)(discussing the dangers of a multifarious point of

error), overruled on other grounds Hughes v. State, 878 S.W.2d 142, 147 n.6 (Tex.Crim.App.

1992). However, in the interests of justice, to the extent the arguments are sufficiently developed

in the brief, we will exercise our discretion to address them. See Foster v. State, 101 S.W.3d

490, 499 (Tex.App.--Houston [1st Dist.] 2002, no pet.); Rodarte v. State, No. 08-04-00176-CR,

2006 WL 2201558, *5 (Tex.App.--El Paso 2006, no pet.)(no designated for publication).

        In Issues One, Two, and Three, Appellant challenges the admission of State’s Exhibit


                                                    -10-
Sixty-One, a redacted copy of his March 8, 2006 statement, and the adequacy of the trial court’s

limiting instructions accompanying the statement’s admission. State’s Exhibit Sixty-One

contains a detailed account of Appellant’s relationship with his wife. Appellant recounted the

couple’s history, their marriage, their mutual drug abuse, his wife’s prostitution, and admitted

that their relationship was often physically abusive. Appellant stated that he hit his wife, “only

because [he] had no choice.” He also admitted that when he assaulted his wife, “I would hit her

with an open hand on her mouth and punch her with my fist on the arms when we fought. I also

remember hitting her one time with a broomstick . . . on her right shin bone because she had left

with some John for three days.” However, regarding the state of their relationship immediately

before her death, Appellant stated that he and his wife had not fought the night she died, and that

they had not fought in the previous two weeks.

       The State offered Exhibit Sixty-One under Article 38.36 of the Texas Code of Criminal

Procedure.1 Defense counsel objected to the statement’s admissibility under Texas Rules of

Evidence 404(b) and 403, and argued that despite its relevance pursuant to Article 38.36(a), it

was inadmissible character conformity evidence and its probative value was substantially

outweighed by the potential for prejudice. Having redacted all references to extraneous offenses

other than Appellant’s admissions of domestic violence, the State argued the statement was


       1
           Article 38.36(a) states:

               In all prosecutions for murder, the state or the defendant shall be permitted
       to offer testimony as to all relevant facts and circumstances surrounding the
       killing and the previous relationship existing between the accused and the
       deceased, together with all relevant facts and circumstances going to show the
       condition of the mind of the accused at the time of the offense.

TEX .CODE CRIM .PROC.ANN . art. 38.36(a)(Vernon 2005).

                                                -11-
admissible to demonstrate the dynamics between Appellant and the deceased, including the

history of domestic violence, drug use, and prostitution, pursuant to Article 38.36(a). Defense

counsel responded by arguing that Appellant’s admissions to domestic violence should also be

redacted under Rule 403. After conducting a Rule 403 balancing test off the record, the trial

court overruled Appellant’s objections and admitted the statement into evidence without

redacting it further.

        Defense counsel then requested the jury be instructed as to the statement’s limited

purpose. Counsel asked that the jury be instructed, both orally and in the jury charge, to consider

the statement only as evidence of the relationship between Appellant and the deceased, and not as

evidence that he was acting in conformity with prior behavior. The State made no objection to

the request, and the trial court provided the following instruction orally without objection from

either side:

        [State’s Exhibit Sixty-One] Will be admitted in evidence with all the prior
        discussion and objections that we have heretofore had in pretrial matters and with
        the understanding that this is not in regard to [Appellant’s] character and I will
        give further instructions written instructions later on.

               I am sorry. Okay. Do you want me to repeat it again? Not in regard to
        character.

        The State published the statement to the jury by reading it into the record. During the

charge conference, defense counsel objected to the Court’s proposed charge on the basis that it

did not include an instruction limiting the jury’s consideration of extraneous offense evidence,

and requested an instruction limiting the jury’s consideration of extraneous offenses to those it

determined were committed by Appellant, “beyond a reasonable doubt.”

        Although the court denied defense counsel’s request, the charge included the following


                                               -12-
instruction without objection:

               You are instructed that you may consider all relevant facts and
       circumstances surrounding the killing, if any, and the previous relationship
       existing between the accused and the deceased, together with all relevant facts and
       circumstances going to show the condition of the mind of the accused at the time
       of the alleged offense, if any.

       Issue One asks this Court to determine whether or not the trial court abused its discretion,

“in failing to redact all the extraneous offense mentioned in Appellant’s confession . . ..”

Appellant concludes that by failing to redact all references to domestic violence from the

statement, he was unlawfully prejudiced and denied his right to a fair trial. The State responds

by arguing that the statement was admissible pursuant to Article 38.36(a) as evidence of the

relationship between Appellant and the deceased, and was necessary to rebut Appellant’s

defensive theory that the victim was murdered by one of her “Johns,” or by another local

homeless person.

       We review a trial court’s ruling to admit extraneous offense evidence for an abuse of

discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1996)(op. on reh’g). A trial

court acts within is discretion so long as its decision to admit the evidence is is within the “zone

of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App.

1990)(op. on reh’g). State’s Exhibit Sixty-One was offered and admitted pursuant to Texas Code

of Criminal Procedure article 38.36(a). Article 38.36(a) allows the admission of all relevant

evidence of the previous relationship between the accused and the murder victim. TEX .CODE

CRIM .PROC.ANN . art. 38.36(a)(Vernon 2005); Garcia v. State, 201 S.W.3d 695, 704-05

(Tex.Crim.App. 2006). However, evidence which is otherwise admissible under Article

35.36(a), is still subject to the limitations provided by the Texas Rules of Evidence. See Garcia,


                                                -13-
201 S.W.3d at 702-05.

       Texas Rule of Evidence 404(b) prohibits admission of extraneous offenses to prove a

person’s character or to show that the person acted in conformity with that character. See

TEX .R.EVID . 404(b). Extraneous offenses may be admissible, however, to establish motive,

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

See TEX .R.EVID . 404(b); Montgomery, 810 S.W.2d at 378-88. Extraneous offense evidence may

also be admissible to rebut a defensive theory. Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.--

San Antonio 1990, pet. ref’d). Whether objected-to evidence of other crimes, wrongs, or acts has

relevance apart from character conformity is a question for the trial court. Montgomery, 810

S.W.2d at 391; Castillo v. State, 910 S.W.2d 124, 127 (Tex.App.--El Paso 1995, pet. ref’d). The

trial court must conclude that the evidence tends to serve some purpose other than character

conformity to make the existence of a fact of consequence more or less probable than it would be

without the evidence. Castillo, 910 SW.2d at 127. A reviewing court should not reverse the trial

court’s ruling unless it lies outside the zone of reasonable disagreement. Id.

       The indictment alleged, in relevant part, that Appellant “did . . . intentionally and

knowingly cause the death of an individual, namely TERESA MCCOWAN ALLEN by striking

TERESA MCCOWAN ALLEN about the head with an unknown object . . ..” Appellant’s

defensive theory during trial was that he was not the killer, but that his wife was murdered by one

of her “Johns,” or by another homeless person living in the same community, and that the police

failed to do a thorough investigation because the victim and the primary suspect were homeless.

Appellant’s defense centered on the issue of identity. The State was entitled to present evidence

to rebut Appellant’s theory by demonstrating that Appellant had a history of ongoing violent


                                                -14-
conduct toward his wife, making the material fact that it was Appellant who committed the

murder more probable. See Castillo, 910 SW.2d at 127. In addition, because of the lack of

physical evidence, or witness accounts of the murder, the evidence of Appellant’s violent

relationship with the victim had significant probative value in establishing the identity of the

perpetrator. Accordingly, Exhibit Sixty-One was not offered solely for the purpose of

establishing a violent character, and we conclude that the trial court did not abuse its discretion

by admitting the evidence over Appellant’s Rule 404(b) objection.

       Still, despite a preliminary conclusion that the evidence was relevant to prove a material

fact independent of its tendency to show character conformity, when the trial court is also

presented with a Rule 403 objection, the admissibility analysis must continue to determine if the

probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App. 1999). To make the Rule 403

determination, the trial court should consider: (1) how probative the extraneous offense evidence

is; (2) the potential for the extraneous offense evidence to impress the jury in some irrational, but

indelible way; (3) the amount of time the proponent will need to develop the evidence; and (4)

the proponent’s need for the evidence to prove a fact of consequence. Wyatt v. State, 23 S.W.3d

18, 26 (Tex.Crim.App. 2000). Only a significant disparity between the degree of prejudice and

the probative value of the evidence will be sufficient to require exclusion. See Jones v. State,

944 S.W.2d 642, 652 (Tex.Crim.App. 1996).

       The evidence of the nature of Appellant’s relationship with his wife, including the

history of domestic violence, prostitution, and drug use, was probative of the circumstances

surrounding Teresa’s death, and was relevant to rebut Appellant’s defensive theory. See Garcia,


                                                -15-
201 S.W.3d at 704. Appellant summarily concludes that the probative value of his confession to

prior instances of domestic violence was substantially outweighed by the danger of unfair

prejudice. Appellant has failed to demonstrate, however, that a “significant disparity” exists

between the degree of potential prejudice presented by the admissions, as compared to the

probative value of the evidence to establish the nature of his relationship with his wife, and to

rebut his defense. See Jones, 944 S.W.2d at 652; see also Garcia, 201 S.W.3d at 704 (noting

that the proper measure for “substantially outweighed” versus “unfair prejudice” asks whether

the jury convicted the defendant based on the prior bad act evidence despite having a reasonable

doubt as to the defendant’s guilt for the charged offense). In sum, the evidence of domestic

abuse contained in Exhibit Sixty-One did not run afoul of the limitations imposed by Rule 404(b)

and Rule 403. The trial court’s decision to admit the evidence pursuant to Article 38.36(a) did

not constitute an abuse of discretion.

       In his appellate brief, Appellant’s discussion of Issues One through Four also includes

approximately ten pages of argument regarding the trial court’s decision to permit several

witnesses to testify about the abusive nature of Appellant’s relationship with his wife. In light of

our preliminary discussion about the problems inherent in the multifarious type of organization

presented by Appellant’s brief, and because Appellant’s statement of Issue One refers

specifically to the admissibility of State’s Exhibit Sixty-One, we have limited our discussion to

that piece of evidence. To the extent, Appellant has attempted to raise additional issues or

arguments within Issue One regarding the admissibility of witness testimony, those arguments

have not been properly presented for our review and are waived. See TEX .R.APP .P. 38.1(f),(I);

Rodarte, 2006 WL 2201558 at *5. Issue One is overruled.


                                                -16-
       In Issues Two and Three, Appellant challenges the trial court’s denial of defense

counsel’s request for extraneous offense limiting instructions following Exhibit Sixty-One’s

admission, and during several witnesses’ testimony regarding Appellant’s relationship with his

wife. As with Issue One, the brief fails to delineate these two issues from the balance of Issues

One and Four. Again, in the interests of justice, we will address them to the best of our ability.

See Foster, 101 S.W.3d at 499.

       As to Appellant’s “Issue Two” argument, we do not agree that the trial court refused to

instruct the jury following the admission of Exhibit Sixty-One. As the above excerpts from the

record demonstrate, the court instructed the jury not to consider Appellant’s statement in regard

to character when the exhibit was admitted into evidence. Also, as noted above, there was no

objection to the court’s instruction. As the trial court did not deny Appellant’s request for a

limiting instruction regarding Exhibit Sixty-One, and because any argument regarding the

instruction’s sufficiency was not preserved for review, Issue Two is overruled. See TEX .R.APP .P.

33.1(a).

       In Issue Three, Appellant purports to challenge the trial court’s refusal to provide a

limiting instruction “each time it was requested.” In as much as we have been able to identify it,

the briefing dedicated to this is limited to approximately one page of discussion. Appellant

admits that the trial court did provide a limiting instruction in response to defense counsel’s

request during one witness’s testimony, and further admits that counsel did not object to the

instruction given. Still, Appellant argues that the instruction itself was inadequate, and concludes

that “[defense counsel] probably figured that considering the inadequate instructions already

given by [the trial court], it was hardly worth asking for more instructions.” The discussion ends


                                                -17-
with a statement that the instruction was not sufficient, and that “Appellant’s convictions should

be set aside and a new trial ordered.” The discussion does not contain a single legal citation.

Again, to the extent Appellant argues the trial court’s instructions were insufficient, the argument

has not been preserved for our review. See TEX .R.APP .P. 33.1(a). With regard to Appellant’s

argument that he is entitled to a new trial due to the court’s refusal to instruct the jury during

testimony, the issue has not been adequately briefed and is waived. See TEX .R.APP.P. 38.1(i);

Foster, 101 S.W.3d at 499. Issue Three is overruled.

        In Issue Four, Appellant contends the trial court erred by denying his request for a

“beyond a reasonable doubt” extraneous offense instruction to be included in the jury charge.

When considering a charge error complaint, the reviewing court must first determine whether the

charge was erroneous, and then determine whether sufficient harm resulted from that error to

require reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998). When the alleged

error was properly preserved for review, the “some harm” standard will lead to reversal unless

the error was harmless. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994).

        Appellant argues the trial court’s refusal to include the requested extraneous offense

instruction constituted “reversible error” because once an extraneous offense instruction has been

requested, “[the defendant] is entitled to it.” The remainder of Appellant’s argument on this

issue states:

        To deny the Appellant such an instruction could never be harmless especially
        considering that the inadequate immediate limiting instructions given by [the trial
        judge] weren’t sufficient to cure the damage done to the Appellant by admission
        of the extraneous offense testimony. Therefore, Appellant’s conviction should be
        set aside and a new trial ordered.

        In light of defense counsel’s objection and request, the trial court should have included a


                                                 -18-
reasonable doubt instruction in the charge in addition to the Article 38.36(a) instruction. See

George v. State, 890 S.W.2d 73, 75 (Tex.Crim.App. 1994). We must now consider whether

Appellant suffered “some harm” as a result of this error. See Abdnor, 871 S.W.2d at 731-32.

       The extraneous offense evidence at issue was contained in Appellant’s voluntary

statement; State’s Exhibit Sixty-One.2 As we discussed in Issue One, and as reflected in the

charge, the statement was admitted for the specific purpose of establishing the nature of

Appellant’s relationship with his wife prior to her death. See TEX .CODE CRIM .PROC.ANN . art.

38.36(a).

       As we discussed in our analysis of the document’s admissibility, the statement contained

Appellant’s categorical confession to physically abusing his wife on numerous occasions prior to

her murder. The confession also included a detailed account of the manner of the assaults, and

Appellant’s statement that he “had no choice” but to perpetrate the abuse. Appellant argues there

is no basis to conclude that he was not harmed by the trial court’s failure to instruct the jury that

it should only consider the prior-abuse extraneous offense evidence after they determined,

“beyond a reasonable doubt” that Appellant committed the offenses. Although we do not do so

lightly, under the unique circumstances presented in this case, we disagree with Appellant’s

argument.

       The contents of Appellant’s statement were completely uncontested and uncontradicted at

trial. Although Appellant denied that he assaulted his wife on the day she died, there was no



       2
         Again, our discussion is limited to Appellant’s argument associated with the State’s use
of his voluntary statement. To the extent, Issue Four includes arguments regarding extraneous
offense evidence contained in witness testimony; those arguments are overruled due to waiver.
TEX .R.APP .P. 38.1(f),(i); Rodarte, 2006 WL 2201558 at *5.

                                                 -19-
factual dispute that Appellant was the individual who committed the prior instances of domestic

violence referred to in his statement. Absent some dispute or challenge to the evidence, the

question of Appellant’s commission of the offenses was taken out of the jury’s hands, and

Appellant was not harmed by the lack of a jury determination that he committed the offenses

beyond a reasonable doubt. Because the court’s error in refusing to further instruct the jury on

the standard of proof relating to extraneous offense evidence was harmless, we overrule Issue

Four.

        In Issues Five and Six, Appellant challenges the legal and factual sufficiency of the

evidence supporting his conviction. In a legal sufficiency review, we must consider all of the

evidence in a light most favorable to the verdict, and determine whether a reasonable minded

juror could have found the essential elements of the charged crime were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61

L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We must defer

to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214

S.W.3d at 13.

        We begin a factual sufficiency review by considering all the evidence in a neutral light.

Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008), citing Roberts v. State, 220 S.W.3d

521, 524 (Tex.Crim.App. 2007). The court must ask whether the jury was rationally justified in

finding the defendant guilty beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415

(Tex.Crim.App. 2006). There are two ways the evidence can be deemed factually insufficient:

(1) when the evidence supporting the verdict is so weak that the jury’s verdict seems clearly


                                                  -20-
wrong and manifestly unjust; and (2) when considering the jury’s verdict, the evidence, although

legally sufficient, is nonetheless against the great weight and preponderance of the evidence. Id.

at 414-15. A reversal for factual insufficiency cannot occur when, “the greater weight and

preponderance of the evidence actually favors conviction.” Roberts, 220 S.W.3d at 524, quoting

Watson, 204 S.W.3d at 417.

       Appellant was convicted of murder as alleged in the indictment. In relevant part, the

indictment alleged that Appellant:

       [I]ntentionally and knowingly cause[d] the death of an individual, namely,
       TERESA MCCOWAN ALLEN by striking TERESA MCCOWAN ALLEN about
       the head with an unknown object,

             And it is further presented that [Appellant] used and exhibited a deadly
       weapon . . . during the commission of and immediate flight from said offense . . ..

See TEX .PEN .CODE ANN . § 19.02 (b)(1)(Vernon 2003).

       After reciting the relevant standards of review and citing the pertinent sections in the

Penal Code, Appellant commits six and a half pages in the brief to identifying gaps in the

circumstantial evidence presented during the guilt/innocence phase. From these pages, we have

identified three distinct arguments: (1) that the purely circumstantial nature of the State’s case

cannot support the conviction; (2) that the conflicts and inconsistencies in the evidence renders

the evidence legally and factually insufficient; and (3) that the jury convicted Appellant for

having a bad character based on the extraneous offense evidence. As to Appellant’s first

argument, it is well accepted that “the cumulative force of all the surrounding additional facts

and incriminating circumstances may be sufficient to support the jury’s conclusion of guilt.”

Torres v. State, 141 S.W.3d 645, 660 (Tex.App.--El Paso 2004, pet. ref’d). Regardless of the



                                                -21-
type of evidence relied upon by the State, the question in a sufficiency review remains whether a

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. See Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). The fact that the

State’s case against Appellant consisted entirely of circumstantial evidence does not

automatically render the evidence legally or factually insufficient. See Torres, 141 S.W.3d at

660.

       Appellant’s second argument is essentially an attack on the jury’s resolutions of conflicts

and inconsistencies in the evidence. As is reflected in the standard of review for evidentiary

sufficiency, this Court must show almost total deference to the jury’s determinations of the

weight and credibility attributed to witness testimony, as well as its resolutions of conflicts in the

evidence. See Torres, 141 S.W.3d at 659 (noting the duty of the appellate court is limited to

determining whether the implicit and explicit findings of the trier of fact are rational in light of

the record as a whole). To sustain Appellant’s legal and factual sufficiency arguments, we would

be forced to violate our duty to defer to the jury’s resolutions of conflicts in the evidence, as well

as its determinations of weight and credibility. We decline to do so.

       Appellant makes no alternative challenge to the evidence supporting a particular essential

element of the offense, but simply concludes, “[a] lot of extraneous offense evidence was

admitted, and the jury may have found Appellant guilty because he was a bad character. The rest

of the State’s evidence was not legally or factually sufficient to convict him of the offense of

Murder.” In light of our discussion of Issues One through Four, Appellant’s sufficiency

argument related to extraneous offense evidence must also fail.

       In light of the evidence as recited in the opening paragraphs of this opinion, we conclude


                                                 -22-
whether viewed in the light most favorable to the verdict, or in a neutral light, the evidence was

sufficient to support the jury’s verdict. Issues Five and Six are overruled.

       Having overruled all of the issues Appellant has presented for our review, we affirm the

judgment of conviction.


June 30, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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