                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00069-CR


TRACY LYNN ESCOBEDO                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                        MEMORANDUM OPINION1
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                                  I. Introduction

      Appellant Tracy Lynn Escobedo appeals his conviction for aggravated

injury to a child with a deadly weapon. See Tex. Penal Code Ann. § 22.04(a), (e)

(West 2011).   Appellant pleaded not guilty.        The jury found him guilty and

assessed his punishment at life imprisonment with a $10,000 fine, and the trial

court sentenced Appellant accordingly. In two issues, Appellant contends that

      1
      See Tex. R. App. P. 47.4.
the trial court improperly denied his challenges for cause and that the trial court

erred by admitting evidence of extraneous acts or offenses. We affirm.

                                 II. Background2

      On January 19, 2009, Appellant had an argument with Cynthia Stout at her

home. Stout lived at the home with her children and husband, and Appellant had

been staying at the Stout residence ―on and off‖ for three or four months.3 After

the argument, Appellant gathered some clothes, a bottle of Rooto, and a bottle of

crystal Drano and put them into a garbage bag. Appellant took the garbage bag

and began walking toward Gainesville.4 Stout, with four of her children inside the

truck, followed Appellant and offered him a ride, and she drove the truck, with the

windows down, slowly along the road as she asked Appellant to get in the truck.

According to Appellant, he decided to get in the truck when he realized Stout was

not going to leave.     Appellant testified that he tossed the garbage bag—

containing the clothes, Rooto, and crystal Drano—toward the bed of the truck

because he did not want Stout to know that he had the Rooto and crystal Drano

and because he did not want them inside the truck with the children. However,

the garbage bag went inside the cab of the truck instead of the bed, and sulfuric

acid from the bottles inside the garbage bag severely burned each of the four

      2
        Because Appellant does not challenge the sufficiency of the evidence, we
only briefly set forth the evidence presented at trial.
      3
       Appellant is the father of Stout’s youngest child.
      4
       The Stout residence is in a rural part of Cooke County.


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children. Stout drove the children and Appellant to Gainesville, and paramedics

arrived to treat the children. Appellant testified that while the paramedics treated

the three oldest children (the youngest child was the least severely injured), he

left the area with the youngest child in Stout’s truck because Stout told him to,

returned to the Stout residence, left the youngest child at the residence with

Stout’s eleven-year-old daughter (who was not in the truck and had remained at

the residence), and asked the neighbors for a ride back to Gainesville. Appellant

testified that he wanted to go back to Gainesville to borrow a friend’s car and

drive to the hospital.

      All four children were taken by helicopter to Parkland Hospital for

additional treatment. The oldest child—the one for which Appellant was charged

with injuring in this case—was hospitalized for two months and has permanent

scarring.

                            III. Challenges for Cause

      Appellant contends in his first issue that the trial court erred by denying his

challenges for cause to six venire members because those venire members

could not differentiate between the clear and convincing and beyond a

reasonable doubt standards of proof and might have convicted him on the lesser

burden. The State responds that Appellant failed to preserve his first issue for

appellate review because he did not exercise peremptory strikes on the six

venire members he challenges on appeal.




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      To preserve error regarding a trial court’s denial of a challenge for cause, a

defendant must: (1) exercise a peremptory challenge on a venire member whom

the trial court should have excused for cause; (2) exhaust all of his peremptory

challenges; (3) request and be denied an additional peremptory challenge; (4)

identify the objectionable venire member who actually sat on the jury whom he

would have struck otherwise; and (5) make the trial court aware of his complaint

at a time and in a manner in which it could be corrected. Loredo v. State, 159

S.W.3d 920, 923 (Tex. Crim. App. 2004); see Davis v. State, 329 S.W.3d 798,

807 (Tex. Crim. App. 2010); Johnson v. State, 43 S.W.3d 1, 5–6 (Tex. Crim. App.

2001); see also Tex. R. App. P. 33.1. Further, an appellant challenging denials

of challenges for cause is entitled to appellate review of denials only with respect

to jurors he used statutory peremptory strikes to exclude. Busby v. State, 253

S.W.3d 661, 671 (Tex. Crim. App.), cert. denied, 129 S. Ct. 625 (2008). If the

issue has been preserved, the appropriate standard of review for the denial of a

challenge for cause is an abuse of discretion standard.        Curry v. State, 910

S.W.2d 490, 493 (Tex. Crim. App. 1995).

      Appellant failed to preserve his complaint for our review. He complains of

the trial court’s denial of his challenges for cause to venire members one, two,

ten, twelve, seventeen, and thirty-nine, but Appellant did not use any of his

peremptory strikes on those venire members.           Instead, Appellant used his

peremptory strikes on venire members six, eight, fifteen, sixteen, twenty-three,

twenty-eight, thirty-two, forty-two, forty-four, forty-eight, and fifty-six.   Thus,


                                         4
Appellant could have but did not exercise his available peremptory strikes on the

venire members that he now contends should have been dismissed for cause.

See Busby, 253 S.W.3d at 670–71 (holding appellant could only complain on

appeal about three of seven objectionable jurors because he did not use

peremptory strikes for the other four). Appellant therefore failed to preserve his

first issue for appellate review, and we overrule it.

                IV. Admission of Extraneous Acts or Offenses

      Appellant argues in his second issue that the trial court abused its

discretion by admitting evidence concerning his knowledge and use of

methamphetamine during his cross-examination by the State.             The State

responds that Appellant did not preserve his complaint for appeal and that the

evidence was admissible to rebut Appellant’s defensive theory that he did not

know the sulfuric acid would cause the harm that it did.

A. Standard of Review

      We review a trial court’s decision to admit or to exclude evidence under an

abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.

Crim. App. 2000); Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App.), cert.

denied, 522 U.S. 917 (1997). A trial court does not abuse its discretion as long

as the decision to admit or to exclude the evidence is within the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990) (op. on reh’g); see Green v. State, 934 S.W.2d 92, 101–02

(Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). ―We give great


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discretion to the trial court in matters of admissibility of evidence if correct under

any theory of law, even if the trial court’s underlying reason was wrong.‖ Wenger

v. State, 292 S.W.3d 191, 202–03 (Tex. App.—Fort Worth 2009, no pet.) (citing

Romero v. State, 800 S.W.2d 539, 543–45 (Tex. Crim. App. 1990)).

B. Applicable Law

      It is improper to try a defendant for being a criminal generally. Alba v.

State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995) (citing Nobles v. State, 843

S.W.2d 503, 514 (Tex. Crim. App. 1992), cert. denied, 516 U.S. 1077 (1996)). In

that regard, rules of evidence 608 and 609 limit the ways by which a witness’s

credibility may be impeached. See Tex. R. Evid. 608, 609. Further, rule of

evidence 404(b) states, ―Evidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith.‖ Tex. R. Evid. 404(b). However, rule 404(b) also provides

that extraneous offense evidence may ―be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.‖         Id.   This list is illustrative, rather than

exhaustive. Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004).

And ―[r]ebuttal of a defensive theory such as mistake or accident is also one of

the permissible purposes for which relevant evidence may be admitted under

Rule 404(b).‖ Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); see

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130

S. Ct. 3411 (2010).


                                          6
C. Discussion

       Appellant testified on direct-examination that he intended to toss his bag

into the back of the truck rather than the cab, that he had ―no clue that [the

sulfuric acid] would do damage like it did,‖ that he would not intentionally hurt the

children, and that he took the youngest child to the Stout residence because

Stout told him to do so. At a hearing outside the jury’s presence and before the

State’s cross-examination of Appellant, the State sought a ruling that it could

question Appellant about his drug use, arguing that Appellant had opened the

door to the admission of evidence concerning his drug use by testifying about

why he fled and suggesting that Appellant actually fled to hide the drug

paraphernalia at the house. Appellant argued that the State’s theory was ―quite a

stretch‖ and would not ―get around Rule 608 and 609 about extraneous acts and

offenses.‖ The trial court suggested, however, that Appellant’s prior use of the

sulfuric   acid   would   be   admissible    concerning   his   knowledge     of   its

dangerousness, and it overruled Appellant’s objection.

       Before any further testimony and after additional argument outside the

jury’s presence in which Appellant raised relevance and rule 403 objections, 5 the

trial court confirmed with Appellant that he intended to seek an instruction on

lesser-included charges of criminal negligence or recklessness and asked

whether Appellant’s prior use of sulfuric acid ―would impact whether or not he


       5
       Appellant does not urge relevance or rule 403 arguments on appeal.


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was criminally negligent or reckless.‖ Appellant’s counsel responded, ―If [the

State] could limit this to his knowledge, specific knowledge about just the drain

cleaner, I agree. I think that would have an effect. But [the State is] going to

bring up all kinds of other stuff.‖ After hearing further argument from the State,

the trial court stated that it did not know what the State would offer until it was

offered and that it would rule on Appellant’s objections as they were made to the

State’s questions.

       The State then began its cross-examination of Appellant, and Appellant

testified without objection that he knew that methamphetamine is manufactured

by combining sulfuric acid with other ingredients, that sulfuric acid was

dangerous but ―not to the extent to the damage that it did,‖ that pseudoephedrine

is used to manufacture methamphetamine, and that he had manufactured

methamphetamine at the Stout residence about a week before the incident.

Appellant, also without objection, identified three additional ingredients used to

manufacture methamphetamine6 and testified that he kept his ―meth making

equipment‖ in a ditch near the Stout residence ―across the fence where the kids

couldn’t get to it.‖

       Appellant then requested a bench conference and objected to ―any of this

evidence‖ and ―everything [the State is] doing from now on‖ because it was


       6
        Appellant successfully objected to the admission of photographs of the
other ingredients, but he did not object to the questions asking him to identify the
ingredients and confirm their use in the manufacturing process.


                                         8
extraneous and prejudicial.      Appellant argued that the State had already

established that he was manufacturing methamphetamine and the ingredients

used to manufacture it. The trial court overruled the objection, stating that part of

Appellant’s testimony was that he would ―never do anything to hurt the kids‖ and

that the State was offering pictures of drug paraphernalia at the residence.

During further cross-examination, Appellant described in detail the process that

he used to manufacture methamphetamine, and he testified that he stored the

materials in a wooded area more than 100 feet from the residence in an area

where the children did not play. Appellant acknowledged, however, that he does

not know where the children are at all times and that they explore the

neighborhood when they play.

      Appellant then, without objection, described two more ingredients used to

manufacture methamphetamine, acknowledged that ―meth cooks‖ sometimes

steal some of the ingredients from others who possess it legally, and identified

from a photograph a hose that could be used to steal the ingredient. 7 Also

without objection, Appellant identified the person from whom he obtained the

hose and testified that he last used methamphetamine about a week before the

incident and that he used methamphetamine approximately forty out of fifty-two

weekends in a year. When the prosecutor asked why he did not ―just stop‖ using

methamphetamine, Appellant objected, and the trial court overruled the objection

      7
       Appellant unsuccessfully objected to the photograph of the hose, but he
did not object to the question about the use of the hose.


                                         9
but instructed the prosecutor to limit her questioning to identification of the drug

paraphernalia recovered from the Stout residence after the incident. After the

court’s ruling, the trial court admitted without further objection three photographs

of a box and its contents, which Appellant identified as his ―meth lab equipment.‖

Appellant also testified without objection that sulfuric acid forms a gas when it

contacts other substances when making methamphetamine and that he did not

sell methamphetamine at the Stout residence.

      Appellant rested after his cross-examination by the State, and the State

called Cooke County Sheriff’s Deputies Mitchell Nelson and Drue Pickle as

rebuttal witnesses. Deputy Nelson identified several photographs he took at the

Stout residence the day of the incident.        Appellant objected to one of the

photographs, but the other photographs depicted ingredients used to

manufacture methamphetamine. Deputy Pickle testified that he assisted in a

search of the Stout residence on the day of the incident, and he identified several

photographs taken during the search.         Two of the photographs taken in the

residence, which were admitted without objection from Appellant, depicted drug

paraphernalia commonly used to smoke narcotics.

      In his brief, Appellant argues that extraneous acts and offenses are

inadmissible under rules of evidence 608 and 609 and acknowledges that if a

―defendant opens the door to such, the Court may allow the State to exploit that

opening.‖ Appellant contends, however, that the State ―is limited to going into

only those things germane to the matter offered by the defendant and only if its


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probative value outweighs its prejudicial effects.‖ The remainder of Appellant’s

argument is devoted to an explanation of how the evidence of his drug use and

manufacture of methamphetamine exceeded the permissible scope of what the

State should have been allowed to explore.         Appellant does not, however,

address whether the evidence concerning his use and manufacture of

methamphetamine may have been admissible for other purposes such as to

rebut his defensive theories of mistake, lack of intent to harm the children, and

lack of knowledge concerning the dangerousness of sulfuric acid.

      Relevant evidence may be admitted pursuant to rule 404(b) when it rebuts

defensive theories such as accident or mistake. See Williams, 301 S.W.3d at

687; Moses, 105 S.W.3d at 626; see also Tex. R. Evid. 404(b). Much of the

testimony discussed above was relevant to Appellant’s defensive theories

because it revealed Appellant’s knowledge of sulfuric acid and its volatility and

because it showed that Appellant manufactured methamphetamine at the Stout

residence where the children could access the manufacturing equipment. See

Tex. R. Evid. 404(b) (providing that extraneous offense evidence may be

admissible to show intent, knowledge, or absence of mistake or accident); see

also Williams, 301 S.W.3d at 687; Moses, 105 S.W.3d at 626. We therefore hold

that the trial court did not abuse its discretion by admitting evidence concerning

Appellant’s use and manufacture of methamphetamine at the Stout residence.

Moreover, Appellant does not differentiate what evidence arguably exceeded the

trial court’s initial ruling and seems to argue that none of the evidence concerning


                                        11
his use or manufacture of methamphetamine was admissible. But to the extent

that Appellant contends that only some of the evidence concerning his use and

manufacture of methamphetamine should have been admitted by the trial court,

we hold that Appellant failed to preserve that complaint for appellate review by

failing to object each time the evidence was offered or seeking a running

objection. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)

(―[O]verruling an objection to evidence will not result in reversal when other such

evidence was received without objection, either before or after the complained-of

ruling.‖); Miramontes v. State, 225 S.W.3d 132, 144 (Tex. App.—El Paso 2005,

no pet.) (holding complaint not preserved despite numerous objections to

extraneous offense evidence because other evidence of same events admitted

without objection). We therefore overrule Appellant’s second issue.

                                 V. Conclusion

      Having overruled each of Appellant’s two issues, we affirm the trial court’s

judgment.



                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: August 31, 2011




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