                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00412-CR


                            JEFFERY SEAN NOBLETT, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 320th District Court
                                       Potter County, Texas
                  Trial Court No. 67,623-D, Honorable Don R. Emerson, Presiding

                                       September 30, 2015

                                 MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Jeffrey Sean Noblett, appeals his conviction for aggravated kidnapping

and the resulting fifty-year sentence and $10,000 fine.1 On appeal, he challenges the

sufficiency of the evidence, the trial court’s charge to the jury, and several of the trial

court’s evidentiary rulings. We will affirm.




       1
           See TEX. PENAL CODE ANN. § 20.04(a)(5) (West 2011).
                            Factual and Procedural History


      On August 12, 2013, Amarillo Police Department Corporal Toby Hudson had just

returned from vacation and was on his way to the department to pick up his work car

and return to his official duties. En route, however, he witnessed something unusual at

the intersection of Southwest Third Street and South Bryan Street: two men standing in

the middle of the road facing each other with what appeared, at Hudson’s first glance, to

be a pile of clothing and boxes. Noting that the scene struck him as “odd” and “out of

place,” Hudson turned around and drove to the immediate area where he had seen the

two men and the unidentified bundle. Once there, Hudson discovered that what he

initially thought might have been a bundle of clothing was actually the body of a man,

who was later identified as Lance Hooser.       Hudson summoned both fellow police

officers and emergency medical personnel and, while waiting for them to arrive,

attempted to resuscitate Hooser, to no avail. Hooser, bearing signs of having been

bound, strangled, beaten, and shot, had died.


      Police discovered the synopsis of the story which led to Hooser being found dead

in the road: a group of acquaintances in the methamphetamine trade became embroiled

in internal hostilities and, ultimately, one man—Hooser—was killed.        The ensuing

investigation revealed the details of events and circumstances leading up to Hooser’s

death. As it relates to this particular incident, the group included Hooser, Terry Young,

Robert Melton, Ricky Burns, Bobby Crawford, Brittney Bralley, and appellant.

Sometime around late July or early August 2013, Hooser had borrowed appellant’s

pickup truck, apparently, to complete a methamphetamine deal in which he was

supposed to sell some methamphetamine and keep some for appellant, Bralley, and

                                            2
Young. But Hooser refused to return the truck and, it seems, failed to complete the

drug transaction as agreed. Only after a chase and some amount of police intervention

did appellant regain possession of the truck. Clearly, hostilities had begun to brew

within the group as a result of the soured transaction. In a recorded phone conversation

with Young, appellant is heard to complain of Hooser and to express a desire to find out

his whereabouts.2


        Bralley, appellant’s girlfriend at the time, testified that she and appellant went to a

house on South Tennessee Street shortly after having received a phone call from

Melton, but she did not know why they were going there. While she stayed in the truck,

appellant went up to the back door of the house and remained standing there. She saw

some of the other men in the group—Melton and Young—very briefly and observed that

they had their faces covered. Bralley testified that she paid little attention as to what

appellant was doing and plucked her eyebrows as she waited in the truck. She did hear

one scream as she sat in the truck. After about ten minutes or so, appellant and Bralley

left in appellant’s truck and went to get gas. Though she testified that appellant told her

nothing about the visit to the house, she was reminded as she sat on the witness stand

that, in her initial statement to police, she had reported that appellant told her that he

heard Hooser scream from inside the house.


        After appellant put gas in his truck, he and Bralley went to Young’s house, where,

she testified, the two men spoke briefly in the alley as she once again waited in the


        2
          Appellant gave consent for the police to search his phone even though he admitted to having
taken efforts to delete everything from it after the incident. Police were able to retrieve many recorded
conversations, however, including ones in which appellant expressed his remaining hostility toward
Hooser and his intent to seek revenge.

                                                   3
truck. She did not hear any of the conversation but described Young’s facial expression

as “shocked, like he had seen a ghost.”


       Clay Rolan, the lead investigator, learned from appellant’s statement to him that

Hooser was initially kidnapped at the house on Tennessee Street and that five men

were there along with Hooser: Young, Crawford, Melton, Burns, and appellant.

According to appellant’s statement, he arrived at the house knowing that the plan was to

“rough up” Hooser, to scare him a little bit in retribution for having reneged on one or

more of the drug deals arranged by the group. Appellant explained that he was tasked

with standing by the car that had been backed up to the back porch with its hatchback

open and making certain that no one was watching the goings-on at the house. While

appellant performed those tasks standing by the back door, he heard Hooser yelling

and heard that Hooser was being beaten. When someone in the group said that a

stronger binding material was needed because the tape was proving inadequate,

appellant retrieved red wire that was used to wrap around Hooser’s neck; he

unsuccessfully attempted to cut the wire into pieces designed to wrap around Hooser’s

wrists and ankles. Appellant also heard a declaration by one of Hooser’s assailants that

they were going to “cut his balls off.”


       Appellant admitted to having helped by holding or lifting Hooser’s shoulders as

the other men were carrying the beaten Hooser to load him into the back of the car.

The men continued to attack Hooser as he was in the back of the car. Young informed

appellant that the men were going to take Hooser out to the country and scare him

some more. Appellant responded, “Okay, I’m going to go.” Initially, Rolan understood

appellant to mean that he was declaring his intent to discontinue his involvement in the

                                           4
matter but discovered that appellant was actually expressing his desire to join the group

out in the country as it continued its assault on Hooser. Rolan learned that Young

called appellant after the group left the house with Hooser and alerted appellant that the

plans had changed and that everyone was meeting at Young’s house. Appellant, along

with Bralley, then went over to Young’s house where the two talked in the alley.

Appellant advised Young to burn the vehicle that had been used to transport Hooser.


          From the record before us, we do not know the precise sequence of events after

Hooser was taken from the house on Tennessee Street. We do know, however, that, at

some point after Hooser was loaded into the car and sometime after appellant left to go

get gas, presumably to follow the group out to the country, Hooser was fatally shot in

the neck and the abdomen. The evidence suggests that it was Burns who actually shot

Hooser and that Melton also played a significant role in the physical assault on Hooser.

It seems apparent from the record that appellant was not present when Hooser was

killed.


          Based on this evidence, the Potter County jury found appellant guilty of

aggravated kidnapping and assessed punishment at fifty years’ imprisonment and a

$10,000 fine. From this conviction, appellant has appealed.


                                   Sufficiency of the Evidence


          It is in his sixth point of error that appellant contends the evidence is insufficient

to support his conviction for aggravated kidnapping; however, because this point of

error would, if sustained, afford the greatest relief to appellant, we will address the

sufficiency of the evidence first. See Chaney v. State, 314 S.W.3d 561, 565 (Tex.

                                                5
App.—Amarillo 2010, pet. ref’d) (citing TEX. R. APP. P. 43.3 and Bradleys’ Elec. v. Cigna

Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam)).


Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.




                                             6
Applicable Law


       The State alleged that appellant, “with intent to terrorize Lance Hooser,

intentionally or knowingly abduct[ed] Lance Hooser, while using or threatening to use

deadly force, by moving him from one place to another with the intent to prevent his

liberation.” See TEX. PENAL CODE ANN. § 20.04(a)(5). Whether a person is charged as

a primary actor or as a party to the offense, the underlying offense of aggravated

kidnapping remains the same. Hinojosa v. State, 433 S.W.3d 742, 752 (Tex. App.—

San Antonio 2014, pet. ref’d). One way in which a person commits the offense of

aggravated kidnapping is by intentionally or knowingly abducting another person with

the intent to terrorize the abducted person or a third person. See TEX. PENAL CODE ANN.

§ 20.04(a)(5). For purposes of this statute, “‘abduct’ means to restrain a person with

intent to prevent his liberation by: (A) secreting or holding him in a place where he is not

likely to be found; or (B) using or threatening to use deadly force.” See id. § 20.01(2)

(West 2011). “‘Restrain’ means to restrict a person’s movements without consent, so as

to interfere substantially with the person’s liberty, by moving the person from one place

to another or by confining the person.” Id. § 20.01(1). Restraint is “without consent” if

“accomplished by force, intimidation, or deception.” Id. § 20.01(1)(A); Hinojosa, 433

S.W.3d at 752.


Analysis


       Appellant maintains that he was unaware of the presence of a deadly weapon.

However, a deadly weapon element was not part of the offense alleged. The use of

deadly force was alleged as a necessary component of the element of “abduct,” as that


                                             7
term is defined in the Texas Penal Code. See TEX. PENAL CODE ANN. § 20.01(2)(B)

(defining “abduct” as restraining a person with intent to prevent his liberation by using or

threatening to use deadly force). That said, we need not address the sufficiency of the

evidence as it relates specifically to the presence or use of a deadly weapon.


       Appellant also emphasizes that he had left the scene before Burns shot Hooser

and adds that he did not directly participate in any of the violence done to Hooser prior

to him being shot, seemingly in an effort to undermine the State’s evidence on the use-

of-deadly-force element. Indeed, the record would seem to confirm those facts. But it

also reveals more about appellant’s role in the incident. Appellant characterizes his

participation in lifting Hooser’s shoulders as he was being carried to the car as his

attempt to prevent any more harm to Hooser by being dropped. He minimizes his

participation and claims to have remained outside the house during the entire time. He

claims to have gone over to the house for the purpose of simply meeting up with friends

and, when one of those friends asked him for some rope or wire, appellant retrieved

some speaker wire from his truck and “gave it to his buddy.”


       This characterization of the evidence defies common sense and ignores

important pieces of evidence. We know from the recorded phone conversations that

appellant sought revenge against Hooser for the truck and methamphetamine deal gone

bad. By his own admission, appellant went to the house on Tennessee Street knowing

that the plan was to beat up Hooser, to “rough him up” and “scare him.” Further, he

reported to Bralley when he returned to the pickup that he had heard Hooser scream

inside the house. In fact, in his own statement to police, appellant acknowledges that

he was aware that Hooser was being beaten and threatened, having recalled hearing

                                             8
the suggestion that the group “cut off his balls.” Appellant also retrieved wire from his

truck as all this was happening, making highly implausible his characterization of getting

the wire to simply and blindly accommodate the request of “his buddy.” To the contrary,

the evidence suggests that appellant tried, but was unable, to cut the wire into pieces

more appropriately sized to bind Hooser’s hands and feet. The wire was ultimately

used to wrap around Hooser’s neck so tightly that heavy duty wire cutters had to be

used to remove the wire at the autopsy. He was directed to stand outside to make

certain that no one was aware of the events taking place inside and agreed to go along

with the further beating once the group left the house with the beaten and bound Hooser

having been placed in the car. The record shows that appellant, at least, knew of the

plan, knew the plan was being executed, and participated in that execution.


      Evidence that appellant went to the house on Tennessee Street to serve as a

lookout, that he heard the beating and the screaming, that he retrieved wire from his

truck when members of the group requested stronger material with which to bind

Hooser, that he helped to carry Hooser and lift him into the car to be taken elsewhere

for further assault, and that appellant sought further involvement by expressing a desire

to accompany the group out to the country to continue the assault on Hooser all suggest

that he participated in the abduction—using deadly force to restrain Hooser with intent

to prevent his liberation—such that he became liable for aggravated kidnapping either

as principle or as a party. At a minimum, he assisted in and facilitated the abduction

and assault of Hooser by serving as a lookout, assisting in the carrying of Hooser, and

retrieving binding material to use on Hooser.     The evidence is sufficient to support




                                            9
appellant’s conviction for aggravated kidnapping. We overrule appellant’s sixth point of

error claiming the contrary.


                               Charge Error: Law of Parties


       In a related point of error, appellant contends that the trial court erred by

permitting appellant to be tried for aggravated kidnapping under the law of parties.

Though appellant couches his contention in terms of admission of evidence, we

understand his issue to be one complaining of the trial court’s inclusion in its charge to

the jury an instruction on the law of parties as provided in Section 7.02 of the Texas

Penal Code.


Standard of Review


       When presented with a jury charge complaint, we review the charge under

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc). Under

Almanza, we must first determine whether error exists in the charge and, if we find

error, whether such error caused sufficient harm to compel reversal. See Ngo v State,

175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (en banc). Jury-charge error requires

reversal when the defendant has properly objected to the charge and we find “some

harm” to his rights. Id. at 743. When the defendant fails to object or states that he has

no objection to the charge, we will not reverse for jury-charge error unless the record

shows “egregious harm” to the defendant. Id. at 743–44.


Applicable Law


       The Texas Penal Code addresses party liability with the following provision:

                                           10
      (a) A person is criminally responsible as a party to an offense if the
      offense is committed by his own conduct, by the conduct of another for
      which he is criminally responsible, or by both.

      (b) Each party to an offense may be charged with commission of the
      offense.

      (c) All traditional distinctions between accomplices and principals are
      abolished by this section, and each party to an offense may be charged
      and convicted without alleging that he acted as a principal or accomplice.

TEX. PENAL CODE ANN. § 7.01 (West 2011). And from the following provision, we learn

one set of circumstances under which a person may be responsible for an offense

committed by the conduct of another:


      (a) A person is criminally responsible for an offense committed by the
      conduct of another if:

             ...

             (2) acting with intent to promote or assist the commission of the
             offense, he solicits, encourages, directs, aids, or attempts to aid the
             other person to commit the offense[.]


Id. § 7.02(a)(2) (West 2011).


      Generally, the trial court may instruct the jury on the law of parties if “there is

sufficient evidence to support a jury verdict that the defendant is criminally responsible

under the law of parties.”      Hinojosa, 433 S.W.3d at 752 (quoting Ladd v. State, 3

S.W.3d 547, 564 (Tex. Crim. App. 1999)).         “In determining whether the accused

participated as a party, the [trial] court may look to events occurring before, during and

after the commission of the offense, and may rely on actions of the defendant which

show an understanding and common design to do the prohibited act.” Ransom v. State,

920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (en banc) (op. on reh’g) (quoting Cordova



                                            11
v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Mere presence alone without

evidence of intentional participation is insufficient to subject a defendant to party liability.

Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). Circumstantial evidence may

be used to prove party status. Ransom, 920 S.W.2d at 302. When the evidence is

sufficient to support both primary and party theories of liability, the trial court does not

err in submitting an instruction on the law of parties. Id.


Analysis


       Here, the evidence is sufficient to support the submission of a party liability

theory instruction to the jury.    We have outlined the evidence of appellant’s direct

participation in the aggravated kidnapping of Hooser and have found such evidence

sufficient to support his conviction for aggravated kidnapping. To this we add that the

recorded phone call between Young and appellant suggests that appellant promoted or

encouraged the act, demonstrating that appellant acted with the requisite “intent to

promote or assist the commission of the offense.” Certainly, by serving as a lookout,

retrieving stronger binding material, helping to load Hooser into the car, and agreeing to

participate in further retribution when the group planned to take Hooser out into the

country, appellant, at a minimum, encouraged, aided, or attempted to aid the other

members of the group in the aggravated kidnapping of Hooser.                  After, it seems,

appellant learned that Hooser had been killed, he directed Young to burn the car the

group had used to transport Hooser.


       This is not a matter in which appellant was merely present. He participated in the

aggravated kidnapping in the role and in the manner designated by the group carrying


                                              12
out its plan such that his participation would subject him to liability as either a principal

or as a party. Because the evidence is sufficient to support either theory of his liability,

the trial court did not err by instructing the jury on the law of parties in a manner

consistent with Sections 7.01 and 7.02 of the Texas Penal Code. See Ransom, 920

S.W.2d at 302. We overrule his fifth point of error.


                           Remaining Points of Error Generally


       Appellant objected on several grounds several times during trial of the trial

court’s admission of evidence that Hooser was ultimately murdered on August 12, 2013.

On appeal, appellant maintains his position that such evidence was irrelevant and

prejudicial and that its admission was harmful to appellant. In his first through fourth

points of error, he attacks the admission of evidence relating to Hooser’s murder on

several fronts, each of which we will address in turn.


                                Denial of Motion in Limine


       In his first point of error, appellant contends that the trial court erred when it

denied and refused to hold a hearing on appellant’s motion in limine. In his argument

on this issue, he identifies the evidence of Hooser’s murder as irrelevant and prejudicial.

He goes on to take the position that the trial court’s denial of his motion in limine was

harmful.


       A trial court’s grant or denial of a motion in limine is a preliminary ruling only and

normally preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 14-

15 (Tex. Crim. App. 2003). A separate trial objection must be made at the time the


                                             13
evidence is offered for admission. See id. at 15; TEX. R. APP. P. 33.1(a). In this case,

appellant did make several trial objections relating to the admission of evidence that

Hooser was ultimately murdered, objections that will permit us to reach the merits of his

contentions through his other points of error. However, this particular issue concerning

appellant’s motion in limine presents us nothing for appellate review, and we overrule it.


                                 Photographic Evidence


       In his second and third issues presented, appellant complains of the trial court’s

admission into evidence the photographs depicting Hooser’s body when Hudson arrived

at the scene and during his autopsy. Though the heading of his third issue suggests

that it is directed at the “cumulative nature” of the photographs, the law cited in the

ensuing development of the issue and his argument in support of it are largely the same

as those advanced in his second issue. He contends in both points that the trial court

erred by admitting the photographs because their prejudicial effect outweighed their

probative value in a trial for aggravated kidnapping.


Standard of Review and Applicable Law


       The admissibility of photographic evidence lies within the sound discretion of the

trial court. Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). Its decision

to admit or exclude evidence will not be overturned on appeal absent a showing that the

trial court abused its discretion. Id. at 787. The Texas Rules of Evidence favor

admission of all relevant evidence at trial, though these evidentiary rules do provide

exceptions that would exclude otherwise relevant and admissible evidence. See TEX.

R. EVID. 401.

                                            14
      One exception to this general rule is found in Rule 403: “The court may exclude

relevant evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. When called

on to analyze evidence in light of a Rule 403 objection, the trial court must balance the

following considerations: (1) the inherent probative force of the proffered evidence along

with (2) the proponent’s need for that evidence against (3) any tendency of the evidence

to suggest decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence to be given

undue weight by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).


      When dealing specifically with photographic evidence, we also consider the

number and size of the photographs, whether they are in color or black and white, the

detail shown in the photographs, whether the photographs are gruesome, whether the

body is naked or clothed, and whether the body has been altered in some way that

might enhance the gruesomeness of the photographs to the appellant’s detriment.

Shuffield, 189 S.W.3d at 787. Simply because the photographic evidence depicted the

“disagreeable realities” of the crime, does not render it inadmissible: “[W]hen the power

of the visible evidence emanates from nothing more than what the defendant has

himself done[,] we cannot hold that the trial court has abused its discretion merely




                                           15
because it admitted the evidence.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim.

App. 1995) (en banc).


Analysis


       The photographs are not overwhelming in number; there are five showing Hooser

lying in the street, one of which shows Hooser’s body at an intermediate distance

showing its position and context; two of which focus solely on the binding evident on

Hooser’s wrists and feet; one which shows the ligature marks and, inevitably, the other

injuries to Hooser’s neck and head; and one the details of which are difficult to make out

in our copy other than to say that it appears to show the scene including housing and

vehicles.3    The twenty-one photographs from the autopsy are primarily medical in

character. We see Hooser’s body photographed lying on the examination table. Most

of the photographs are directed at the wounds caused to Hooser’s body, including the

binding both before and after removal of the tape and wire. Many also include a ruler

that provides the size of the particular wound being depicted. These photographs, too,

are unpleasant to view, but no more so than one would expect when viewing

photographs of another human being who died after being brutalized. Again, these

particular images have a more clinical tone and serve to demonstrate the method of




       3
           The lack of clarity of our copy of the photograph—State’s Exhibit 5—permits us only to
determine that it depicts the scene after Corporal Hudson arrived. We can see houses and a police car
and can determine generally that some of the street is also shown. At that point, however, the
photograph becomes very dark, and we are unable to tell whether the photograph also includes what
would be another intermediate-distance image of Hooser’s body lying in the road. The discussion at trial
of this particular photograph could be read to suggest that it does. We can gather from the available
context that images of Hooser’s body would be seen at a fair distance and would not be particularly
gruesome beyond the ordinary discomfort the image of a dead body in a residential street invokes in
people of ordinary sensibilities.

                                                  16
binding Hooser’s neck, feet, and hands and the number, extent, and relation of the

injuries he sustained during the ordeal.


       The non-photographic evidence supports the conclusion that appellant promoted,

assisted, and sought further participation in the aggravated kidnapping of Hooser. We

also learn that he directed post-murder actions as it relates to Hooser’s kidnapping. So,

although we do agree that the record would support the conclusion that appellant did

not directly participate in the actual physical acts taken on Hooser’s person, we cannot

say that his promotion and participation were irrelevant to the ultimate outcome; his

participation in the aggravated kidnapping did contribute to the physical assault and

murder of Hooser such that the photographic evidence—though depicting an

unpleasant reality—was not more prejudicial than probative. We overrule appellant’s

second and third points of error.


                             All Evidence of Hooser’s Murder


       In a related contention, appellant complains of all the evidence relating to the fact

that Hooser was ultimately murdered, pointing again to the evidence that appellant was

not at the scene when Hooser was murdered and re-emphasizing that appellant was

charged with aggravated kidnapping of Hooser—not his murder.


Standard of Review and Applicable Law


       We review the trial court’s admission of evidence for an abuse of discretion and

will not disturb the trial court’s decision if the ruling was within the zone of reasonable

disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).


                                            17
      As outlined in our analysis of appellant’s second and third issues, one exception

to the general rule favoring admission of relevant evidence is found in Rule 403: “The

court may exclude relevant evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX.

R. EVID. 403. When called on to analyze evidence in light of a Rule 403 objection, the

trial court must balance the following considerations: (1) the inherent probative force of

the proffered evidence along with (2) the proponent’s need for that evidence against (3)

any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped

to evaluate the probative force of the evidence, and (6) the likelihood that presentation

of the evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco, 210 S.W.3d at 641–42.


      Concerns regarding relevance and prejudicial effect often arise when dealing

with “same transaction contextual evidence.” See Camacho v. State, 864 S.W.2d 524,

532 (Tex. Crim. App. 1993) (en banc).       Such evidence imparts to the trier of fact

information essential to understanding the context and circumstances of events which,

although legally separate offenses, are blended or interwoven. Id. That being so, it is

admissible to illuminate the nature of the crime alleged.        Id.   Same transaction

contextual evidence becomes an issue when an extraneous matter is so intertwined

with the State’s proof of the charged crime that avoiding reference to it would make the

State’s case incomplete or difficult to understand. See Rogers v. State, 853 S.W.2d 29,


                                           18
33 (Tex. Crim. App. 1993) (en banc) (op. on reh’g). “It is well settled that where one

offense or transaction is one continuous episode, or another offense or transaction is a

part of the case on trial or blended or closely interwoven therewith, proof of all the facts

is proper.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (en banc)

(quoting Mitchell v. State, 650 S.W.2d 801, 811 (Tex. Crim. App. 1983) (en banc)).

Such evidence is treated as “‘intrinsic’—a circumstance of the defendant’s charged

criminal act.” Worthy v. State, 312 S.W.3d 34, 40 (Tex. Crim. App. 2010).


Analysis


       Hooser’s murder and aggravated kidnapping are factually interwoven.             The

binding, the beating, the transportation, and the murder are all part of the details

surrounding the plan to exact revenge on a man who had crossed others in the

methamphetamine business. In fact, to prove aggravated kidnapping as charged, the

State had to prove that appellant, as principal or party, abducted Hooser while using or

threatening to use deadly force. Evidence relating to the injuries sustained by Hooser,

including the fatal ones, is relevant to show the deadly force element of the offense.

Certainly, evidence that Hooser was ultimately killed shows that, during the course of

kidnapping Hooser, the group utilized deadly force.


       That appellant did not personally inflict those injuries does not relieve him of

criminal liability in light of his knowledge and promotion of the kidnapping and assault

and his assistance and participation in the commission of those offenses. The jury was

entitled to hear the tragic, albeit not unsurprising, outcome of the brutal assault of the

kidnapped man because Hooser’s murder during the aggravated kidnapping was so


                                            19
intertwined with the State’s proof of the charged crime that avoiding reference to it

would make the State’s case incomplete. See Rogers, 853 S.W.2d at 33. Evidence

that Hooser was ultimately murdered imparted to the jury information essential to

understanding the context and circumstances surrounding the aggravated kidnapping.

See Camacho, 864 S.W.2d at 532. And, even though murder is a legally separate

offense, the aggravated kidnapping and the murder of Hooser are blended and

interwoven events in the incident occurring on August 12, 2013. See id. That being so,

evidence that Hooser was killed at the end of the transaction is admissible to illuminate

the nature of the crime alleged. See id.


       We add that both appellant and the State seemed to make clear at trial that

appellant was charged with aggravated kidnapping and that others in the group were

personally responsible for the actual murder of Hooser. Also, the trial court’s charge to

the jury was clear that appellant was being charged with aggravated kidnapping. That

being so, we do not see that the jury could be confused on the matters on which it was

charged. See Gigliobianco, 210 S.W.3d at 641–42. We overrule appellant’s fourth

point of error.


                                       Conclusion


       Having overruled appellant’s points of error on appeal, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).


                                           Mackey K. Hancock
                                               Justice
Do not publish.



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