Opinion issued February 11, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00456-CR
                            ———————————
                  KENNETH RAY BATTEN, SR., Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 405th District Court
                           Galveston County, Texas
                       Trial Court Case No. 17-CR-1668


                          MEMORANDUM OPINION

      A jury convicted Kenneth Batten, Sr., of burglary of a habitation and

sentenced him to 20 years in prison. In his first issue, Batten contends that

insufficient evidence supported his conviction because there was no direct evidence

he entered the house. In his second issue, Batten contends that the trial court erred
in overruling his motion to exclude the testimony of two child witnesses because it

was extraneous to his charge and its probative value was substantially outweighed

by its prejudicial effect. Agreeing that the trial court erred in admitting the children’s

testimony, we reverse and remand for a new trial.

                                     Background

      In May 2017, Deputy J. Olvera stopped and questioned Kenneth Ray Batten,

Sr. in the Chase Park neighborhood of Bacliff, Texas, after a young girl complained

that a man had asked her to get into his car and provided Deputy Olvera with a

license plate number. As Deputy Olvera was talking to Batten, she noticed wires in

a black trash bag in the back seat of Batten’s car and tool bags, tools, and gloves in

the front seat of his car. The deputy observed that “the wires looked to be cut” and

found that suspicious. She also found a single key in Batten’s pocket that was not on

his key chain.

      The deputy took photos of the car. Some of these photos show tool bags,

miscellaneous tools, and gloves in the front seat area of Batten’s car. Another photo

shows the back seat with bags of wires. Other photos show that Batten had more

tools in the back seat and in the trunk, including wire-cutters.

      Deputy Olvera arrested Batten for driving with a suspended license. Batten

was eventually charged with attempted kidnapping of the child and burglary of a

building. The police investigated the single key. The day after Batten’s arrest,


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Deputy Olvera checked on the houses in the neighborhood and saw a sign, either for

rent or for sale, in the yard of a home. The officer then found that the lockbox on the

house was broken and was missing a key. The house is five blocks from the location

in which Batten was stopped and arrested.

      Deputy Olvera testified that she successfully used the key she recovered from

Batten’s pocket to enter the house. Inside, she saw insulation from the attic on the

floor, right under the attic door. She also noticed that the breaker box was turned off.

The deputy could not say when the lockbox was compromised. She also could not

say whether the wires found in Batten’s car came from the house on Chase Point.

After her initial inspection of the house, Deputy Olvera did not discover any

evidence of a theft.

      The owner of the house, R. Jacobs, testified that the house was for rent and

that it had been about a month since someone last lived there. After the last renters

left, Jacobs inspected the property to make sure everything was in order. Jacobs

testified that he maintained the property by checking it weekly and by mowing the

lawn. Jacobs also testified that he gave various contractors access to the key in the

lockbox but that they always returned the key. He noted that when work was done

on the house in the past, he had been notified. He was not expecting there to be any

work done on the house on the day of Batten’s arrest. Jacobs testified that he did not




                                           3
know Batten and has never given someone with that name authority to enter his

rental house.

      Jacobs testified that, before the police investigated the house, he saw nothing

wrong with his property. Yet after the police left, he noticed damage. He tried to turn

on the water and it did not work. He tried to turn on the lights, and those did not

work either. He called an electrician who said that all the wires had been cut.

      Detective Remmert testified that vacant buildings are frequently burglarized

for their fixtures and wiring. Wires are stripped, and the copper is sold for scrap

metal. Detective Remmert did not find it surprising that Jacobs did not notice

missing wiring upon inspection of the house with the police at first. According to

Detective Remmert, a layperson would not see the missing wires when walking

through the house.

      Batten denied breaking the lockbox and denied breaking into Jacobs’s house.

Detective Remmert testified that, when asked about possessing a key to the house,

Batten stated, “Y’all might can get me as far as attempted to break into something,

but I didn’t break into that house to take any wiring.”

      Before voir dire, the trial court severed the burglary of a habitation case from

the attempted kidnapping case. Batten then moved to exclude the testimony of two

children who would describe the attempted kidnapping offense. Batten argued that

their testimony was extraneous to the burglary of a habitation charge and the


                                          4
probative value of their testimony was substantially outweighed by its prejudicial

effect. In response, the State argued that the two offenses were so interconnected

that it was impossible to give the jury an accurate timeline of events without the

attempted kidnapping. The State further argued that it needed to address the

kidnapping claim to explain to the jury how Deputy Olvera located Batten (i.e., by

Batten’s license plate in the same neighborhood) and why she stopped to question

him (i.e., to investigate the alleged attempted kidnapping of the young girl). The trial

court overruled Batten’s objection and ordered the State to instruct witnesses to

refrain from using the term “kidnapping” to minimize the prejudicial effect of the

testimony.

      The State’s theory was that Batten took the key from Jacobs’s lockbox and

used it to enter the house and steal the wiring later found in his back seat during the

traffic stop. The State began its case by eliciting testimony from the two young girls

and the mother of one of the girls that Batten had tried to kidnap. The jury convicted

Batten of burglary of a habitation. The trial court admitted evidence of Batten’s prior

convictions that enhanced the punishment range to 2 to 20 years. The jury sentenced

Batten to the maximum punishment of 20 years’ confinement.

      Batten appealed.




                                           5
                                  Legal Sufficiency

      Batten contends the evidence does not support his conviction for burglary of

a habitation. He argues no one saw him entering or leaving the house. There also

was no forensic evidence connecting him to the house. Further, Jacobs did not

discover his rental house was missing wiring until weeks after Batten’s arrest.

A.    Standard of review

      We review challenges to the sufficiency of the evidence under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20 (1979). See Brooks v. State,

323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010). Under Jackson, evidence is

insufficient to support a conviction if, considering all the record evidence in the light

most favorable to the verdict, no rational factfinder could have found that the state

proved each element of the charged offense beyond a reasonable doubt. See Jackson,

443 U.S. at 317–19; Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

We consider both direct and circumstantial evidence and all reasonable inferences

that may be drawn from the evidence in making our determination. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The State need not disprove every

conceivable alternative to guilt. See Brown v. State, 911 S.W.2d 744, 747 (Tex.

Crim. App. 2007).

      Evidence is insufficient under four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere


                                           6
“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; or (4) the acts alleged do not constitute

the criminal offense charged. See Jackson, 443 U.S. at 314, 318 & n.11.; Laster, 275

S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The Jackson standard defers to the factfinder to resolve any conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from “basic

facts to ultimate facts.” Jackson, 443 U.S. at 318–19; Clayton, 235 S.W.3d at 778.

Circumstantial evidence alone can be enough to establish guilt. Hooper v. State, 214

S.W.3d 9, 14–15 (Tex. Crim. App. 2012). An appellate court presumes the factfinder

resolved any conflicts in the evidence in favor of the verdict and defers to that

resolution if the resolution is rational. See Jackson, 443 U.S. at 326. If an appellate

court finds the evidence insufficient under this standard, it must reverse the judgment

and enter a judgment of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982).

B.    The evidence was legally sufficient

      While there is no direct evidence that Batten entered Jacobs’s house to commit

burglary, a conviction may rest on circumstantial evidence alone. King v. State, 29

S.W.3d 556, 565 (Tex. Crim. App. 2000). A jury may infer an act from the “acts,

words, and conduct of the accused.” Manrique v. State, 994 S.W.2d 640, 649 (Tex.

Crim. App. 1999).




                                          7
      The offense of burglary occurs when a person does not have the consent of

the owner of the property, yet “enters a habitation, or a building not then open to the

public, with intent to commit a felony; or . . . enters a building or habitation and

commits or attempts to commit a felony.” TEX. PENAL CODE § 30.02(b)(1), (3).

Direct evidence of entry is not required, as the offense can be established by

inference. Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006).

      Jacobs had a lockbox on the front door with a key in it, and only specific

people, such as contractors, had the code. Jacobs checked the house in the weeks

before Batten’s arrest and did not notice anything wrong with the house. But when

the police checked the house, they found that someone had pried open the lockbox

and the key was missing. Batten had a key in his pocket that fit the lock on the house.

The officer’s in-car video of Batten’s arrest was admitted into evidence. In the video,

the officer realized that Batten was wet. Batten responded that he had been

“winterizing” 1 a house in a hot attic in the month of May. The officer asked Batten

where he had been, and Batten described the residence and the intersection where



1
      Winterization is the preparation of household plumbing for freezing temperatures to
      “ensure the safety of the utilities during the winter climate.” See Mortgage Contracting
      Services, LLC v. J & S Prop. Services LLC, No. 8:17-CV-1566-T-36CPT, 2018 WL
      3219386, at *1 (M.D. Fla. July 2, 2018); see also Winterize, MERRIAM-WEBSTER ONLINE,
      https://www.merriam-webster.com/dictionary/winterizing (last visited Feb. 3, 2020). The
      process involves, among other things, emptying the water heater and draining the water
      from the pipes. See, e.g., Kautsman v. Carrington Mortgage Services, LLC, No. C16-1940-
      JCC, 2018 WL 513588, at *1 (W.D. Wash. Jan. 23, 2018).


                                             8
the house was near, which differed from Jacobs’s house. Batten had wires in his car,

and there were wires missing from the house that the key in Batten’s pocket opened.

From this information, the jury could have reasonably inferred that Batten had used

the key to enter the house and steal the wiring. The jury could have disbelieved

Batten’s explanation that he had been in an attic “winterizing” the house, because it

was May in Texas, and winter was many months away. Based on evidence that the

house had a broken lockbox, a missing key, and insulation beneath the attic door,

the jury could have reasonably inferred that it was Batten who used the key in his

pocket, entered the house, and rummaged through the attic. The jury could have

further concluded that Batten entered the house without permission to remove the

wires based on Jacobs’s testimony that he never gave Batten permission to enter the

home. Finally, the jury was entitled to rely on Batten’s incriminating statement that

he could have been guilty of attempting to “break into something.” This statement

supports the other evidence and permitted the jury to infer that Batten entered the

house.

      In sum, the circumstances allowed a reasonable jury to conclude that Batten

broke open the lockbox, stole the key, and then entered the house and the attic, where

he removed the wiring that was found in the back seat of his car. There is legally

sufficient evidence to support the jury’s verdict.

      We overrule Batten’s first issue.


                                           9
                        Same Transaction Contextual Evidence

      Batten contends that the trial court erred by admitting testimony from two

young girls indicating that Batten had tried to kidnap one of them. Batten contends

that the word “kidnapping” and the entire line of questioning were prejudicial and

biased the jury. Batten further contends that the State could discuss the burglary of

a habitation charge without evidence of attempted kidnapping.

      In response, the State argues that the two offenses were interconnected. It also

argues that the kidnapping testimony would help the jury to make sense of the record,

especially how the police came to apprehend Batten. The State also argues that

admitting this testimony was essential because the children offered substantive

evidence of the burglary by placing Batten and his car in the neighborhood at the

time of the burglary.

A.    Standard of review

      We review a trial court’s admission of extraneous offense evidence for an

abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996);

Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A trial court does not abuse its discretion if its decision to admit evidence is

within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d

372, 391–92 (Tex. Crim. App. 1991). This Court will sustain a trial court’s decision

on admissibility of evidence if correct on any theory of law applicable to the case,


                                          10
even when the trial court’s underlying reason for the decision is wrong. Romero v.

State, 800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990) (citing Spann v. State, 448

S.W.2d 128 (Tex. Crim. App. 1969)).

B.    The trial court’s decision to admit the kidnapping testimony was error

      Under Rule 404(b), evidence of extraneous crimes is not admissible at the

guilt/innocence phase of trial to prove that a defendant committed the charged

offense in conformity with a bad character trait. TEX. R. EVID. 404(b). But such

evidence may be admitted if it constitutes “same transaction contextual evidence.”

Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). If two offenses are

interwoven such that they form an “indivisible criminal transaction,” so the State

cannot introduce one without revealing the other, the offenses are same transaction

contextual evidence. See Dukes v. State, 486 S.W.3d 170, 181 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (citing Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011)). Same transaction contextual evidence “exists only where that evidence

is necessary to the jury’s understanding” of the offense. Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993) (emphasis in original). To be admissible, same

transaction contextual evidence must also satisfy Rule 403’s balancing test:

      (1) How compellingly the extraneous offense serves to make a fact of
          consequence more or less probable – a factor that is related to the strength
          of the evidence presented by the proponent to show the defendant in fact
          committed the extraneous offense;



                                         11
      (2) The potential the other offense evidence has to impress the jury “in some
          irrational but nevertheless indelible way”;

      (3) The time the proponent will need to develop the evidence during which the
          jury will be distracted from consideration of the indicted offense; and

      (4) The force of the proponent’s need for this evidence to prove a fact of
          consequence, i.e., does the proponent have other probative evidence
          available to him to help establish this fact, and is this fact related to an
          issue in dispute.
See Reese v. State, 33 S.W.3d 238, 240–41 (Tex. Crim. App. 2000) (explaining the

application of Rule 403).

      Under Rule 403, the trial court may “exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice.” TEX. R. EVID.

403. Evidence is unfairly prejudicial when it has “an undue tendency to suggest that

a decision be made on an improper basis.” Reese, 33 S.W.3d at 240. Unfair prejudice

may result from the tendency of the evidence to prove some adverse fact not properly

in issue or unfairly to excite emotions against the defendant. Casey v. State, 215

S.W.3d 870, 883 (Tex. Crim. App. 2007). Evidence is not admissible to show “same

transaction context” when its primary or sole purpose is to prove that the defendant

acted in conformity with a “bad character trait.” Babers v. State, No. 01-15-00409-

CR, 2016 WL 4203657, at *3 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (mem.

op., not designated for publication).

      This case is analogous to Babers, in which the defendant was charged with

sexual assault. The trial court admitted the defendant’s extensive pornography

                                          12
collection as well as testimony about the collection and that a witness saw him

masturbating hours after the alleged assault. Id. In reversing and remanding, this

Court found that the evidence was “inherently prejudicial” and “force[d] [the

defendant] to defend himself against charges not a part of the present case against

him.” Id. (citing Sims v. State, 273 S.W.3d 291, 294–95 (Tex. Crim. App. 2008)).

      Similarly, the Court of Criminal Appeals has held that evidence of a

defendant’s use, possession, or sale of marijuana was not necessary for the jury to

understand the charged offenses of burglary and possession of methamphetamine.

Rogers, 853 S.W.2d at 33.

      The trial court here abused its discretion when it admitted the children’s

testimony about the alleged attempted kidnapping. The officer testified that the

house was about five blocks from where a child, T.F., had contact with Batten. T.F.,

who was 10 years old, was walking to her friend S.’s house when she encountered a

man later identified as Batten. T.F. testified that she saw a man in a car who told her

to get inside. He opened his door and got out. T.F. then screamed, yelled for help,

and went to her friend’s house. According to T.F., Batten told her, “You have to

come out sometime.” T.F. called her mother at work and told her that a “man tried

to kidnap me.” T.F.’s mother then called the police. T.F. did not witness any burglary

that day, however.




                                          13
      The police arrived and as the officer was talking to the children, one of the

girls identified Batten’s car. The officer saw Batten driving past the driveway, with

the license plate number matching the description of the car.

      The State contends that this testimony explains how Batten came to the

officer’s attention, which led to him being apprehended and charged for burglary.

The State further contends that the testimony placed Batten in the neighborhood at

the time of the burglary. The children’s testimony also provided the jury with a

description of Batten’s car and his license plate, which gave police justification to

detain him. The State argues that omitting this testimony would leave the case

incomplete.

      Yet, none of the kidnapping testimony was necessary to the jury’s

understanding of the burglary. See Rogers, 853 S.W.2d at 33 (concluding that in

“narrating appellant’s arrest it would not have been impracticable to avoid

describing the recovery of marijuana and appellant’s confessed use and sale of

marijuana”). The jury could understand the case without the emotionally freighted

attempted kidnapping description. None of the witnesses who testified identified

Batten as the man who tried to kidnap T.F. The reason for the traffic stop is not a

fact of consequence. The jury only needed to know that Batten was located, detained,

and arrested in the same neighborhood as the burglarized house. That information

was available from the deputy and from Batten’s own admissions. The information


                                         14
Deputy Olvera provided, that Batten had “cut” wires in his vehicle and was wet from,

according to him, working in an attic, and he had a key in his pocket that opened the

door to the house that had been burglarized, was also relevant. The reason for

Batten’s detention did not aid the jury’s understanding of the burglary. See Babers,

2016 WL 4203657, at *3.

      Instead, the attempted kidnapping had the potential to impress the jury “in

some irrational but nevertheless indelible way.” TEX. R. EVID. 403; Reese, 33

S.W.3d at 240–41. The threat of violence toward a child had the potential to push

the jury to convict Batten for burglary, not on the strength of the burglary evidence,

but on the visceral impact of the attempted kidnapping testimony. For these reasons,

we hold that the trial court abused its discretion by admitting the testimony of the

two child witnesses.

C.    The admission of the testimony was harmful

      We review the erroneous admission of extraneous offense or extraneous bad

act evidence for non-constitutional error under Texas Rule of Appellate Procedure

44.2(b). Tex. R. App. P. 44.2(b); Rodriguez v. State, 546 S.W.3d 843, 860 (Tex.

App.—Houston [1st Dist.] 2018, pet. ref’d). Under Rule 44.2(b), we disregard the

error unless it affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.


                                          15
Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). But

an error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d

356, 365 (Tex. Crim. App. 2001). Ultimately, the court must examine whether the

evidence, even if relevant, had significant potential “to lure the factfinder into

declaring guilt on a ground different from proof specific to the offense charged.”

Old Chief v. United States, 519 U.S. 172, 180 (1997).

      Extraneous offense evidence is “inherently prejudicial.” Sims v. State, 273

S.W.3d 291, 294–95 (Tex. Crim. App. 2008). Evidence of an attempt to kidnap a

child off the street, with live testimony from the child and her friend, necessarily had

an emotional impact on the jury. The impact was not isolated. The first thing the

State argued in its opening was that a 10-year-old girl would be testifying that Batten

drove up to her as she was walking down her street and told her to “get in the car.”

The State praised the girl for being smart and running away. The State told the jury

that they would see the video of the deputy as she was interviewing the girl and her

friend as Batten’s vehicle passed by. T.F. and her friend were the first two witnesses

the jury heard from at trial. The third witness was the mother who called the police.

Three of the six witnesses during the guilt-innocence portion of the trial testified

about the attempted kidnapping rather than the burglary of the habitation. None

knew anything about the burglary. The State mentioned T.F. as the first topic in their


                                          16
closing argument during guilt-innocence. The State returned to T.F. during their

closing argument in punishment, calling the episode “scary” and “shocking”:

      But now that we are in punishment, you actually can consider all of the
      facts. So, let’s talk about T.F., because that is bizarre. That is strange.
      It leaves a great, big question mark about what he was going to do. So,
      is there a victim or not? That’s for you to decide. What was going to
      happen with that 10-year-old girl? We have no idea. But that’s
      something that’s also scary and it’s shocking, just as shocking as
      someone who would go into a house and strip all the wiring out of it.

The next thing the State asked was for the jury to assess the maximum punishment.

The jury complied.

      The evidence tying Batten to the burglary was not overwhelming. The

evidence did not reveal when the lockbox was compromised or when the burglary

occurred. No one saw Batten enter or leave the house. The theft was not discovered

until well after Batten was arrested for driving with a suspended license. Jacobs

replaced the electrical wiring before the police inspected the home. No witnesses

matched the wires in Batten’s car to those in the house. Batten told the police he was

a self-employed electrician.

      We note that the jury considered Batten’s prior criminal history in assessing

punishment. But we must also note that the jury chose the maximum sentence

allowed on this burglary charge involving $4,000 in property damage to an empty

rental house after receiving lengthy testimony of a possible child kidnapping.

Indeed, the jury’s punishment underlines that the admission of the extraneous


                                          17
offense testimony is a grave concern. We therefore hold that the admission of the

children’s testimony affected Batten’s substantial rights.

       We sustain Batten’s second issue.

                                      Conclusion

       Because there was sufficient evidence to convict Batten of burglary of a

habitation, we overrule his first issue. Because the trial court abused its discretion in

admitting the evidence of the suspected kidnapping and that error was harmful, we

sustain Batten’s second issue and reverse the trial court’s judgment and remand for

a new trial. Given the resolution of the second issue, we need not reach Batten’s

third issue.




                                         Sarah Beth Landau
                                         Justice

Panel consists of Justices Lloyd, Goodman, and Landau

Do not publish. TEX. R. APP. P. 47.2(b).




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