AFFIRMED; Opinion Filed October 13, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-01039-CR

                               OLIVER BATTIE JR., Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1212860-R

                              MEMORANDUM OPINION
                            Before Justices Lang, Evans, and Whitehill
                                    Opinion by Justice Evans
       Appellant Oliver Battie, Jr. appeals from the judgment adjudicating him guilty of sexual

assault. In three issues, appellant asserts that: (1) the evidence is legally insufficient to support

the conviction; (2) the trial court abused its discretion when it permitted the complaining witness

to testify about appellant’s prior incarceration during the guilt/innocence phase because it was an

irrelevant extraneous offense; and (3) the trial court abused its discretion when it admitted the

complaining witness’s testimony about appellant’s prior incarceration because of the danger of

unfair prejudice outweighed any probative value. Finding no merit in appellant’s arguments, we

affirm the trial court’s judgment.
                                        I. BACKGROUND

        Appellant was indicted for sexually assaulting his niece. At trial, complainant testified

that in December 2012, she was a nineteen-year old student and home visiting family for the

holidays after completing her first semester of college. On December 23, 2012, complainant

visited her aunt at her apartment. Appellant is married to complainant’s aunt. Complainant and

her aunt ran errands together, got dinner, and came home to eat and watch TV. Complainant

spent the night on the couch as it was a one-bedroom apartment. Complainant’s aunt went to bed

but appellant remained in the living room watching TV with complainant. Complainant testified

that appellant sat across from her and made her feel uncomfortable because she thought he was

“messing with his self” by “touching his privates.” Complainant went to bed and woke up the

next morning as her aunt and appellant were leaving for work. Appellant came home first

around 2 or 3 p.m. on December 24, 2012 and sat down across from complainant in the living

room.    Complainant testified that she texted her friend, Ashanti Jones, because she felt

uncomfortable being alone with appellant at the apartment. Complainant asked Jones if she

could come get her but Jones did not have a car.

        Complainant then testified that appellant asked her to call her aunt. Appellant took the

phone away from her and asked his wife what time she was coming home. After getting off the

phone, appellant asked complainant if she knew when his birthday was and she replied “I don’t

know.” Complainant testified that appellant said “[y]ou going to make uncle whoop you, when

is my birthday, you know the answer.” Appellant kept this up for a while and complainant stated

that she was still uncomfortable and started texting her friend again. Appellant then took

complainant’s pants off and complainant testified that she said “no” and “kind of push [sic]

him.” Complainant testified that appellant then took of her underwear and put his penis in her

vagina. Complainant stated that she was crying, scared, and did not know how to react or what to

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do. Complainant testified that appellant put his penis in her four separate times and that he did

so without her consent. Complainant further testified that she was scared because she knew

appellant had been to jail before and that there was a period of time when he was not around the

family. After appellant stopped, complainant testified that he said “[w]hat is wrong with you?

Wipe your face before your aunt come home. I’m going to tell her that it’s your fault.”

Complainant then put her pants back on and went to the restroom to wash her face and calm

down.    Appellant then drove her home, and complainant took a shower.                 Jones picked

complainant up after receiving a text that appellant had raped her.             Jones testified that

complainant was “freaking out, crying, shaking.” Jones’s mother called complainant’s mother

who drove complainant to the hospital. Complainant spoke with police officers, and a sexual

assault exam was performed.

        The jury found appellant guilty of sexual assault, and appellant elected for the trial court

to assess punishment. Appellant pled not true to the enhancement allegation. The trial court

found the enhancement allegation to be true and assessed punishment as life imprisonment.

After the trial court overruled appellant’s motion for new trial, appellant timely filed this appeal.

                                           II. ANALYSIS

        A.     The Evidence Was Sufficient to Support the Conviction

               1.      Standard of Review

        Appellant contends the evidence is insufficient to support a finding of guilt for the

offense of sexual assault. When an appellant challenges the sufficiency of the evidence to

support a conviction, 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. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

Evidence is sufficient if “the inferences necessary to establish guilt are reasonable based upon

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the cumulative force of all the evidence when considered in the light most favorable to the

verdict.” Id. If the evidence is conflicting, we “‘presume that the factfinder resolved the

conflicts in favor of the prosecution’ and defer to that determination.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 326 (1979)).

                 2.       Analysis

        A person commits the offense of sexual assault if the person intentionally or knowingly

causes the sexual organ of another person, without that person’s consent, to contact or penetrate

the mouth, anus or sexual organ of another person, including the actor. TEX. PENAL CODE

§ 22.011(a)(1)(C) (West 2011). The indictment against appellant and the subsequent jury charge

both contained similar definitions of sexual assault.1 Although the Texas Penal Code provides

for eleven different possibilities of how a sexual assault may occur without the consent of the

other person, the indictment did not define the term “without consent.” See TEX. PENAL CODE

§ 22.011(b)(1)–(11) (West 2011). The jury charge, however, stated that the sexual assault would

be “without consent” if “the actor compel[led] the other person to submit or participate by the

use of physical force or violence.” See id. § 22.011(b)(1).

        Appellant argues that the State failed to present sufficient evidence at trial that appellant

sexually assaulted the complainant. We disagree. Here, complainant testified that she felt

uncomfortable around appellant the evening before the assault when he began masturbating

while in the living room alone with her. Complainant also testified that she was already scared


        1
           The indictment against appellant asserted that appellant “unlawfully then and there intentionally and
knowingly cause the contact of the female sexual organ of [complainant’s name], hereinafter called complainant,
with the sexual organ of defendant, and cause the penetration of the female sexual organ of complainant by any
means, including the sexual organ of defendant, without the consent of complainant.” The State later struck the
phrase “and cause the penetration of the female sexual organ of complainant by any means, including the sexual
organ of defendant” from the indictment. The jury charge provided that a person commits a sexual assault if “he
intentionally or knowingly causes the sexual organ of another person, by any means, without that person’s consent,
to contact or penetrate the mouth, anus, or sexual organ.”



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of appellant because she knew he had been to jail before. The day of the assault, appellant

threatened to “whoop her” because she didn’t know the date of his birthday.       When appellant

attempted to remove her pants and underwear, complainant testified that she pulled her knees to

her chest. Complainant testified that she said “no” and tried to push him away. Complainant

further testified that appellant put his penis in her vagina four separate times and that he did so

without her consent. Complainant began crying and felt like she was “stuck there.” Further, the

notes from the sexual assault examination provide as follows: “Patient notes that she was at her

aunt & uncle’s home alone with her uncle. Notes that her uncle sat on the couch next to her and

started rubbing her legs. He then removed her jeans. Patient reports saying ‘no’ and trying to

push him away. He then put his penis in her vagina.”

       A sexual assault lacks consent if, among other possible factors, the actor compels the

other person to submit or participate by the use of physical force or violence. See id. There is no

requirement that a certain amount of force be used, only that it is used. Edoh v. State, 245

S.W.3d 606, 609 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Viewing the evidence in the

light most favorable to the verdict, the evidence shows that complainant was afraid of appellant

because of his prior conviction and that he threatened to “whoop” her. Furthermore, there is

evidence that appellant pulled down complainant’s jeans and underwear despite the fact that she

resisted, tried to push him away, and said no. We conclude that the evidence viewed in a light

most favorable to the verdict shows that a rational juror could have found beyond a reasonable

doubt that appellant used force to overcome complainant’s resistance and forced her to have

intercourse with him.    Id. at 610 (facts sufficient to support use of physical force where

defendant grabbed complainant’s arm and pulled her down onto a blanket); Gonzalez v. State, 2

S.W.3d 411, 415 (Tex. App.—San Antonio 1999, no pet.). We overrule this issue.




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       B.      The Extraneous Offense Was Relevant and Properly Admitted

       In his second and third points of error, appellant asserts that the trial court abused its

discretion when it (1) permitted the complaining witness to testify about appellant’s prior

incarceration during the guilt/innocence phase because it was an irrelevant extraneous offense;

and (2) admitted the complaining witness’s testimony about appellant’s prior incarceration

because of the danger of unfair prejudice outweighed any probative value.

               1.      Standard of review

       A trial court’s decision to admit or exclude evidence is viewed under an abuse of

discretion standard. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“A trial

court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse of

discretion standard.”); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).          A trial

court abuses its discretion when its decision lies outside the zone of reasonable disagreement.

Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

               2.      Additional facts

       During the direct examination of complainant, the State tried to clarify why she was so

scared of appellant. Appellant’s counsel asked to approach the bench and the jury was retired so

that the matter could be clarified. The State questioned complainant outside the presence of the

jury, and she testified that she was scared of appellant because he went to prison for killing

someone. The State argued that appellant’s prior incarceration was relevant to complainant’s

state of mind at the time of the offense. The State noted that if the defense argued that this was a

consensual act because complainant did not scream or kick, and it wanted to demonstrate that

complainant’s fear of appellant was relevant and more probative than prejudicial. Appellant’s

counsel argued that this was an attempt by the State to “open up the fact that the defendant has

been to the penitentiary before in front of the jury rather than it actually having a real impact on

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what her actions were or weren't on that day.” The trial court ruled the testimony admissible

since the defense had brought up the act being consensual in its opening statement. Once the

jury was brought back in, the following exchange took place as the State continued its direct

examination of complainant:

       State:          And you said that's because you were scared; is that correct?

       Complainant: Yes.

       State:          Can you explain to the jury why you were scared?

       Complainant: Because I know that he had been to jail before.

A few moments later, the trial court then provided this instruction to the jury:

       Members of the jury, at this time I wish to instruct you that the defendant’s on
       trial solely on the charge contained in the indictment. In reference to the
       reference you just heard in regards to the defendant being in jail before, that is
       admitted solely before you to consider the state of mind of the complaining
       witness in this case and for no other purpose.

In addition, the jury charge contained the following instruction regarding extraneous offenses:

       You are instructed that there is testimony before you regarding other crimes or bad
       acts other than the one charged in this case. You cannot consider said testimony for
       any purpose unless you find and believe beyond a reasonable doubt that the defendant
       committed such other offenses if any were committed, and even then you may only
       consider the same in determining the motive, intent, opportunity, knowledge or
       absence of mistake or accident of the defendant, if any, in connection with the
       offense, if any, alleged against him in the indictment in this case, and for no other
       purpose.

                3.     Relevance

       Appellant first argues that the introduction of the extraneous offense was irrelevant. We

disagree. Evidence is relevant if it has any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence. TEX. R. EVID. 401. Further, rule 404(b) provides that 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; however, it may be admissible for other purposes such as motive,

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opportunity, intent, preparation, knowledge, or identity. See TEX. R. EVID. 404(b); Williams, 301

S.W.3d at 687. Rebuttal of a defensive theory is also one of the permissible purposes for which

evidence may be admitted under Rule 404(b). Williams, 301 S.W.3d at 687.

       Here, the State argued that it was using the testimony to disprove appellant’s theory that

the act was consensual. The State specifically argued that complainant’s fear of appellant caused

her to not fight or scream. As complainant’s testimony had relevance aside from proving

appellant’s character, the testimony was properly admitted. As such, we cannot conclude that

the trial court abused its discretion by finding this testimony relevant and we overrule appellant’s

second issue.

                4.     Prejudicial

       Appellant next argues that even if the evidence was relevant, its probative value was

more prejudicial than probative. Again, we disagree.

       There is a presumption that relevant evidence will be more probative than prejudicial.

See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Rule 403, however, allows

for the exclusion of 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 an

appellant challenges the admissibility of the evidence under rule 403, the trial court must conduct

a balancing test. See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). When

undertaking a Rule 403 analysis, the trial court must balance (1) the inherent probative force of

the proffered item of 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

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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. See Gigliobianco v.

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

       The first two Gigliobianco factors involve the probative value of the evidence—how

strongly it serves to make more or less probable the existence of a fact of consequence to the

litigation coupled with the proponent’s need for that item of evidence. Id. at 641. As discussed

above, the trial court determined that the disputed evidence was probative of establishing

complainant’s state of mind. Further, the State used the testimony to disprove appellant’s

argument that the act was consensual. This testimony tended to make it more probable that

complainant did not consent to the act. Therefore, these factors weigh in favor of admission of

the evidence.

       As for the third factor, the evidence at issue in this case is not so inherently inflammatory

that they would tend to elicit an emotional response and impress a jury in some “irrational and

indelible way.” See Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002). The trial

court allowed evidence that had previously been incarcerated, but the jury did not hear any

evidence of the nature of the crimes. Complainant told the trial court, outside the presence of the

jury, that she was scared of appellant because she knew he went to jail for murder. The trial

court, however, limited complainant’s testimony to the fact that appellant have been previously

imprisoned. As such, this factor weighs in favor of admission of the evidence.

       The fourth and sixth factors concern the tendency of the evidence to confuse or distract

the jury from the main issues and the amount of time consumed by the presentation of the

evidence. See Gigliobianco, 210 S.W.3d at 641 (“Evidence that consumes an inordinate amount

of time to present or answer, for example, might tend to confuse or distract the jury from the

main issues.”). As described above, complainant’s testimony regarding the appellant’s prior

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conviction was clear and brief.      In fact, her entire testimony consisted of one sentence:

“[b]ecause I know that he had been to jail before.” Thus, this factor weighs in favor of

admission.

       The fifth factor concerns “a tendency of an item of evidence to be given undue weight by

the jury on other than emotional grounds. For example, ‘scientific’ evidence might mislead a

jury that is not properly equipped to judge the probative force of the evidence.” Id. The

testimony regarding appellant’s prior conviction was not prone to this tendency as it pertained to

matters that could be easily understood by a jury. Hence, this factor also weighs in favor of

admission.

       After completing the balancing test, we conclude that the probative value of

complainant’s testimony regarding appellant’s prior conviction was not substantially outweighed

by the danger of unfair prejudice.

       Further, even if we had concluded that the trial court erroneously admitted the evidence,

appellant’s substantial rights were not affected. See TEX. R. APP. P. 44.2(b) (nonconstitutional

error that does not affect appellant’s substantial rights must be disregarded). If error is assumed

for purposes of this analysis only, we proceed to conduct a harm analysis. See Taylor v. State, 93

S.W.3d 487, 503 (Tex. App.—Texarkana 2002, pet. ref’d) (“If the appellate record in a criminal

case reveals nonconstitutional error that is subject to review under Tex. R. App. P. 44.2(b), we

do not reverse a judgment of conviction or punishment unless we determine the error is such that

it affects the substantial rights of the defendant. In order to properly conduct a harm analysis

under Rule 44.2(b), we are to determine whether the error affected a substantial right of the

defendant.   The Texas Court of Criminal Appeals has opined that, in order to make this

determination, we must decide whether the error had a substantial or injurious effect on the

jury’s verdict.”). The court of criminal appeals has determined that substantial rights are not

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affected by the erroneous admission of evidence “if the appellate court, after examining the

record as a whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.” See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       Appellant argues that the testimony about his prior incarceration had a substantial and

injurious effect on the jury’s verdict. We disagree. As stated above, complainant testified as to

the events which took place on December 23 and 24, 2012. She made only one mention of the

prior incarceration and it was to explain her state of mind at the time of the sexual assault.

Further, the trial court gave a limiting instruction following her testimony. In addition, Jones

testified about the texts she received from complainant and that she was “freaking out, crying,

shaking” following the sexual assault. Finally, Dr. Ackerman, the head of the sexual assault

program at Parkland Hospital, also testified regarding the examination and report in this case.

Considering the record in its entirety, we have fair assurance that the alleged error did not

influence the jury or had but a slight effect. We conclude that the alleged error by the trial court

was harmless and overrule appellant’s third issue.

                                            III. CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                             / DAVID EVANS/
                                                             DAVID EVANS
                                                             JUSTICE


Do Not Publish
TEX. R. APP. P. 47
141039F.U05




                                               –11–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

OLIVER BATTIE JR., Appellant                       On Appeal from the 265th Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-01039-CR        V.                       Trial Court Cause No. F-1212860-R.
                                                   Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                       Justices Lang and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of October, 2015.




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