                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-09-00005-CR
        ______________________________


      EARNEST DWAIN MORALES, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 8th Judicial District Court
                Delta County, Texas
                Trial Court No. 6954




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                           OPINION

       The sister of Earnest Dwain Morales had been arrested earlier in the day by Sergeant Paul

David Robertson of the Delta County Sheriff's Department. So, when Morales found Robertson and

fellow officer Josh Richardson at a convenience store in Cooper, Texas, he approached them in the

parking lot to discuss the arrest. A struggle ensued. As a result, Robertson had scraped knees and

pepper spray in his eyes and upper respiratory system. Morales was convicted of assault on a public

servant and sentenced to three years' confinement and fined $10,000.00.

       On appeal, Morales contends that the evidence was legally and factually insufficient to

support the verdict and that the trial court erred by admitting evidence of his prior arrests.

       We affirm the judgment of the trial court because (1) legally and factually sufficient evidence

supports the jury's finding that Morales recklessly caused Robertson bodily injury, and (2) the trial

court did not abuse its discretion by admitting evidence of Morales' prior violent offenses.

(1)    Legally and Factually Sufficient Evidence Supports the Jury's Finding that Morales
       Recklessly Caused Robertson Bodily Injury

       Morales challenges the legal and factual sufficiency of the evidence that he intentionally,

knowingly, or recklessly caused bodily injury to Robertson.1



       1
         Morales' second and third points of error challenge, respectively, the factual and legal
sufficiency of the evidence to support a finding that he caused bodily injury to Robertson. His fourth
point asserts a claim for "fatal variance," however, it merely restates his evidentiary sufficiency
challenge and fails to cite any supporting law. We analyze Morales' fourth point of error as a legal
sufficiency challenge; and, to the extent he seeks to make a fatal variance claim, we overrule it as
inadequately briefed. See TEX . R. APP . P. 38.1(i).

                                                  2
       In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320

(1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review,

we review all the evidence, but do so in a neutral light and determine whether the evidence

supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the

evidence that the jury's verdict is clearly wrong or manifestly unjust. Lancon v. State, 253 S.W.3d

699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007);

Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). We must afford "due deference"

to the fact-finder's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006);

see Young v. State, 242 S.W.3d 192, 198 (Tex. App.—Tyler 2007, no pet.). And although, when we

review the factual sufficiency of the evidence, we have the ability to second-guess the fact-finder to

a limited degree, we should nonetheless be deferential, with a high level of skepticism about the fact-

finder's verdict required before a reversal can occur. Roberts, 220 S.W.3d at 524; Young, 242

S.W.3d at 198–99.

       The elements of assault on a public servant are that a person (1) intentionally, knowingly, or

recklessly, (2) causes bodily injury, (3) to a person, (4) whom the actor knows to be a public servant,

and (5) that public servant is discharging an official duty. TEX . PENAL CODE ANN . § 22.01(a)(1),




                                                  3
(b)(1) (Vernon Supp. 2008). We use a hypothetically correct jury charge to evaluate both the legal

and factual sufficiency of the evidence.2 Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008).

        Morales challenges the evidentiary sufficiency only with respect to the elements that he

caused bodily injury to Robertson and that he was at least reckless when he did so. Because

evidentiary sufficiency is questioned, we set out, here, more of the salient facts before our analysis

of the issues.

        Robertson and Richardson had their patrol car parked at a convenience store. Robertson

testified that, while he was standing next to the patrol car, Morales, very sweaty and visibly angry,

quickly approached him and began yelling and shaking his finger in Robertson's face regarding his

arrest of Morales' sister earlier in the day. Morales "had a wild look in his eye" and claimed

ownership of an illegal knife found during his sister's arrest. Intending to pat Morales down for

weapons, Robertson repeatedly ordered Morales to place his hands on the car, but Morales refused

to comply. Robertson testified to the altercation that followed and, as an integral part of his

testimony, physically demonstrated the altercation for the jury with another officer.            The

demonstration was not (and could not be) transcribed fully; but the jury viewed it and necessarily

derived information from the testimony and demonstration beyond what it would have derived from

the testimony alone. There was no objection to the demonstration, and no effort was made to assure

that the record reflected the details placed before the jury by the demonstration.

        2
       We find the trial court's charge to the jury to have been in substantial if not complete
compliance with the applicable law, and thus, the equivalent of a hypothetically correct charge.

                                                  4
        Robertson testified that, when he grabbed for Morales' arm, intending to restrain Morales in

order to search him, Morales jerked away, lowered his head and "came down into my waist here

(indicating)," "ducked his head down," and "went toward [Robertson's] right side," "in the middle

of" Robertson, with his arms around Robertson—apparently meaning that Morales physically

stepped into Robertson and caused his arms to envelop Robertson. In response, as Morales was

doing that, Robertson then caused the two struggling men to fall to the ground, again movements that

were physically demonstrated to the jury. Robertson repeatedly ordered Morales to put his hands

behind his back. During this time, Morales resisted the officers, at one point locking his hands under

his body so the officers could not cuff him and at another point reaching for Robertson's gun (still

holstered). When Richardson sprayed Morales with pepper spray, at Robertson's request, it also

affected Robertson, who was still on the ground holding Morales. Later, apparently as something

of a summary of the physical demonstration to the jury, Robertson testified that Morales "attacked"

him and "charged into" him.

        The officers cuffed Morales and put him in the patrol car. Robertson testified that his "knees

were scraped up from having to be on the ground," his right eye was temporarily blinded by the

pepper spray, and his breathing was affected by the pepper spray.

        On cross-examination, Robertson admitted that, in response to Morales' actions, he, rather

than Morales, pulled or wrestled the two of them to the ground. He also agreed that Morales did not

verbally threaten him, that the natural response of a person put in a painful position was to try to get



                                                   5
out of it as quickly as possible and that Morales was trying to free himself from Robertson's hold and

to get away.

        Richardson testified that he was in the passenger seat of the patrol car with the passenger

door and window shut when Morales approached Robertson. Morales looked "aggravated," had his

fists "balled up," "and was yelling at Robertson, asking if the officers had arrested Morales' sister

earlier that night. Richardson heard Robertson ask Morales to put his hands on the car "two or three

times, and then they were on the ground." Richardson jumped out of the patrol car and ran to the

driver's side where Morales was on his knees, with Robertson leaned over him, grabbing at Morales'

upper body. Both officers repeatedly ordered Morales to put his hands behind his back, but Morales

resisted their efforts to cuff him by locking his hands together under him. On order from Robertson,

Richardson sprayed Morales with pepper spray, which got on Morales, Robertson, and Richardson,

causing Richardson's skin to burn. After spraying Morales, they cuffed him and put him in the squad

car, despite his continuing efforts to resist.

        Nicki Szafran, a first-grade teacher, was sitting in the front passenger seat of her daughter's

car, which was parked on the right side of the patrol car at the convenience store, when she saw

Morales walk up to the patrol car. She saw Morales have a "heated . . . discussion" with one of the

deputies. She said Morales looked angry, seemed upset, and may have been "pointing at [the

deputy]." During the scuffle between Robertson and Morales, she heard the officers repeatedly tell

Morales to "[c]alm down" and "put [his] hands behind [his] back," but Morales "kept fighting it" by



                                                  6
"trying to break away" and "get loose" from Robertson. On direct examination, Szafran conceded

that she did not see Morales "running or hitting or anything," and on cross-examination, she admitted

that she "couldn't tell what was going on" once Robertson took Morales to the ground, because the

police car blocked her view.

       After the State rested, Susan Childress, Morales' girlfriend and mother of his child, testified

as a defense witness. Childress saw Morales calmly approach Robertson and ask to speak with him

about Morales' sister. Robertson told Morales to come closer so Robertson could search Morales.

She said Morales complied with Robertson's commands, but when Morales asked why the search

was necessary, Childress saw Robertson slam Morales' head against the patrol car and search him.

Then, she saw Robertson grab Morales around the throat and take him to the ground. Morales tried

to get Robertson's arm off of his throat. She testified that she had a clear, unobstructed view of the

events and that Morales never threatened, swung at, or otherwise attempted to assault the officers.

       On cross-examination, Childress asserted that Morales was innocent and denied that he

charged into Robertson. She did not hear the officers order Morales to calm down or put his hands

behind his back. She admitted that Morales provided financial support for her and their baby and

conceded that, if Morales were convicted, it would cause her great financial harm.

       Next, Morales' father, Peter Mark Morales (Peter), testified that he was at the convenience

store putting gas in his truck when he saw Morales approach Robertson. Peter saw Morales ask

Robertson something, and Robertson started pushing Morales, shoved his head against the patrol car,



                                                  7
quickly put him in a choke hold and pulled him to the ground. Before the officers restrained

Morales, Peter did not see Morales take any violent action toward the officers. He thought Morales

struggled with the officers as a reaction to the choke hold. Peter said Morales offered no resistance

of any kind until Robertson took Morales to the ground.

       Morales took the stand in his own defense and testified that he followed the officer's

instructions and denied doing anything to injure Robertson. When asking Robertson about his

sister's arrest, Morales described his own demeanor as docile and respectful. Morales asserts that

Robertson put him in a choke hold and pulled him to the ground. After he and Robertson went to

the ground, Morales testified that, in order to avoid injury, he went into defensive mode, a fetal

position, bent over on his knees with his hands clasped together under him. Morales admitted that,

in trying to relieve the pressure on his neck and stop Robertson's choke hold, he may have grabbed

Robertson's hands, tried to remove them from around his neck, or reached around Robertson's body

and tried to push him off. He denied making any aggressive moves toward Robertson.

       Here, Morales contends there was no evidence that he knowingly, intentionally, or recklessly

caused bodily injury to Robertson because the officer wrestled Morales to the ground and ordered

the use of pepper spray. Because the pain from both events was the direct result of Robertson's

actions or orders, Morales argues, any pain from the pepper spray or scraped knees was caused by

Robertson rather than Morales. We disagree.

       A person is criminally responsible if the result would not have occurred but for his
       conduct, operating either alone or concurrently with another cause, unless the


                                                 8
       concurrent cause was clearly sufficient to produce the result and the conduct of the
       actor clearly insufficient.

TEX . PENAL CODE ANN . § 6.04(a) (Vernon 2003).

       "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition."

TEX . PENAL CODE ANN . § 1.07(a)(8) (Vernon Supp. 2008). This "purposefully broad" definition of

"bodily injury" includes physical pain from "even relatively minor physical contacts so long as they

constitute more than mere offensive touching." Wawrykow v. State, 866 S.W.2d 87, 89 (Tex.

App.—Beaumont 1993, pet. ref'd) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App.

1989)). The intent element, "reckless," is defined in Section 6.03(c) of the Texas Penal Code:

       A person acts recklessly, or is reckless, with respect to circumstances surrounding his
       conduct or the result of his conduct when he is aware of but consciously disregards
       a substantial and unjustifiable risk that the circumstances exist or the result will
       occur. The risk must be of such a nature and degree that its disregard constitutes a
       gross deviation from the standard of care that an ordinary person would exercise
       under all the circumstances as viewed from the actor's standpoint.

TEX . PENAL CODE ANN . § 6.03(c) (Vernon 2003). Jurors may also infer intent from the defendant's

acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 49 & 50 (Tex. Crim. App. 2004); see

also Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980); Moyer v. State, 948

S.W.2d 525, 530 (Tex. App.—Fort Worth 1997, pet. ref'd).

       Morales focuses on Robertson's action in taking the pair to the ground and in ordering the

use of pepper spray, suggesting that there is no proof of any affirmative action by Morales that

caused any pain or injury to Robertson.



                                                  9
       The broad statutory definition of assault does not explicitly require an exertion of force in

the direction of the victim, but, by its terms, allows a conviction for even recklessly "causing" pain

to another, without specifying any type of action required. Given this broad definition of assault,

unless there is, within the meaning of the statute, some implicit added requirement—such as an

action taken in the direction of an arresting officer—there appears the real possibility that, in some

cases, it would be impossible to distinguish between resisting arrest and assaulting an officer who

is attempting an arrest. Pulling away from an officer's grasp, or passively refusing to cooperate in

an arrest, if pain results to the arresting officer, theoretically could support an assault conviction.

On the other hand, we have found no published Texas case that has approved an assault conviction

in the absence of some proof that the defendant struck the victim or used some force in the direction

of the victim.

       The Texas Court of Criminal Appeals has held that a defendant charged with assaulting an

arresting officer was not entitled to a lesser-included offense instruction on resisting arrest when he

or she struck the arresting officer, even though his or her motive was to avoid being arrested. See

Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001). At least one court has expressed concern

over that holding:

       [W]e find the Lofton decision troubling: the Lofton holding creates the very great
       risk that, in any case in which a person resists arrest by any use of force, the State
       will oppose a resisting arrest instruction. Although the appellants in the instant case
       and in Lofton clearly used a great deal of force in resisting arrest, the decision of the
       court of criminal appeals raises the very real possibility that any minor scuffle during



                                                  10
        an arrest will result in a defendant being charged solely with assault on a public
        servant.

Oiler v. State, 77 S.W.3d 849, 853–54 (Tex. App.—Corpus Christi 2002, pet. ref'd).

        A few years ago, we upheld an assault conviction where a defendant's flailing struggles to

avoid arrest resulted in the defendant hitting and kicking an officer. Gumpert v. State, 48 S.W.3d

450, 454–55 (Tex. App.—Texarkana 2001, pet. ref'd). Evidence that defendant struck the victim in

the chest causing pain and scuffled with the victim resulting in injured fingers, has been held

sufficient to support an assault conviction. Bryant v. State, 47 S.W.3d 80, 82–83 (Tex. App.—Waco

2001, pet. ref'd); see Lofton, 45 S.W.3d at 652 (even if defendant intended only to prevent his arrest,

force used in striking officer in face was at least reckless in causing bodily injury); Brooks v. State,

967 S.W.2d 946, 947–48 (Tex. App.—Austin 1998, no pet.) (evidence sufficient where defendant

accidently struck an officer in eye while "merely trying to free herself" from officer's grasp).

        In each of the preceding cases, the public servant testified to a blow of some sort from the

defendant or a forcible struggle with the defendant (not a simple pulling away), causing pain to the

public servant. Morales argues that there is no proof that any action of his caused Robertson's pain.

Here, we need not decide whether assault requires proof of some force used on or in the direction

of the victim.

        While there is no testimony of an actual hit or kick that connected with any part of

Robertson's body, there is testimony by Robertson of a physical movement by Morales toward

Robertson that connected with at least some portion of Robertson's midsection and, immediately


                                                  11
following that contact, an ensuing struggle, during which Robertson was "injured." Also, there was

later testimony that Morales, after aggressively approaching Robertson, "attacked" or "charged into"

Robertson. Those items of evidence are sufficient, without more, to show that Morales exerted force

against or toward Robertson and that force is connected causally to Robertson's "injuries."

       Also during Robertson's testimony, Robertson and a fellow officer gave the jury a physical

demonstration of the encounter, thus putting before the jury certain evidence that we cannot see or

explicitly read in the record. Physical demonstrations or gestures have been cited as added reasons

appellate courts must defer to jury findings.

       Central to one case was the fact question of where the defendant put his hand during the

charged robbery. See Rogers v. State, 756 S.W.2d 332, 336–37 (Tex. App.—Houston [14th Dist.]

1988, pet. ref'd). The location of Rogers' hand was hinted at in the language used in testimony, but

was apparently specified by the gestures of a witness and of both attorneys in questioning that

witness. Notwithstanding the lack of explicit testimonial language specifying where Rogers' hand

was located, the court in Rogers deferred to the jury verdict in light of the demonstrations or gestures

made at trial:

       In addition to noting that appellant failed to request that the record reflect the
       substance of the gestures or demonstrations, we also note that he failed to object to
       them. Because this court must evaluate challenges to the sufficiency of the evidence
       by reviewing the record in the light most favorable to the verdict, we hold the
       testimony excerpted above, which indicates that not one but several demonstrations
       took place, supports the jury's verdict. See TEX . R. APP . P. 50(d).




                                                  12
Id. at 337. Similarly, an earlier involuntary manslaughter case turned on how the defendant held a

gun; in deference to the jury's findings, the appellate court found the evidence sufficient to support

the conviction, because the jury had seen the physical gestures obviously accompanying

indeterminate expressions "like that" or "like this" used in the testimony. Gaona v. State, 733

S.W.2d 611, 613 & n.1 (Tex. App.—Corpus Christi 1987, pet. ref'd). We, too, are constrained to

defer to the jury's findings, based on its observation of the gestures and demonstrations at trial,

gestures and demonstrations which were not transcribed and which we cannot see.

       Even without such a physical demonstration for the jury, we use "deferential standards of

review" in reviewing jury findings for evidentiary sufficiency. Roberts v. State, 221 S.W.3d 659,

664 n.7 (Tex. Crim. App. 2007); Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The

jury is in the better position to evaluate the witnesses. Marshall, 210 S.W.3d at 625. That is

especially true when there were physical demonstrations or gestures given in the jury's presence, but

that are not explicitly transcribed or detailed in the record. See Rogers, 756 S.W.2d at 336–37;

Gaona, 733 S.W.2d at 613 & n.1.

       There is testimonial evidence that Morales moved or charged into Robertson's body, making

contact with him and that pain to Robertson (skinned knees and pepper spray) flowed directly from

that contact. There was also the physical demonstration to the jury. The evidence, thus, allows for

a finding that actions by Morales, in which he directed force toward Robertson, resulted directly in

Robertson's "take-down" of Morales, the struggle on the ground, the skinned knees, and the pepper



                                                 13
spray. Skinned knees and the results of the pepper spray constitute "bodily injury."3 As the record




       3
         A jury may infer that a victim actually felt or suffered physical pain, because people of
common intelligence understand pain and some of the natural causes of it. Randolph v. State, 152
S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.). When considering whether evidence is
sufficient to establish that a victim suffered pain, juries may use common sense and apply common
knowledge, observation, and experience gained in the ordinary affairs of life, using inferences that
may reasonably be drawn from the evidence. Wawrykow, 866 S.W.2d at 88–89.

       Robertson testified to suffering only two injuries:

               Q       [By the State] And what kind of pain did [the pepper spray] cause
       you?

                A       . . . you can't breathe, on a regular . . . it does takes your breath away.
       It feels like you're out of air. . . .

               Q        . . . you had the inability to breathe properly?

               A       Yeah. And I was blinded for a little bit, too.

               Q       In both eyes or just one eye?

               A       Just, mainly, one.

                       ....

               Q       [By Defense Counsel] Did [Morales] do anything to harm or injure you?

               A       Yes, sir.

               Q       What did [Morales] do to harm or injure you?

              A       Well, my knees were scraped up from having to be on the ground, on
       the concrete, and I got sprayed [with pepper spray] as a result of him resisting.

                                                   14
does not conflict with the jury findings, we find the evidence that Morales knowingly, intentionally,

or recklessly caused bodily injury to Robertson legally and factually sufficient.

(2)    The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Morales' Prior
       Violent Offenses

       Morales argues that the trial court erred in allowing questions about the prior arrests because

the danger of unfair prejudice substantially outweighed the evidence's probative value.4 We disagree.

       On direct examination, the following exchange took place between Morales' counsel and

Childress, a defense witness:

               Q       Did Mr. Morales threaten the officer in any way?

               A       No.

               Q       Did [Morales] use any abusive language towards the officer?

               A       No, he didn't. He's not that type of person.

               Q       Did he make any threatening gestures toward the officer?

               A       No.

(Emphasis added.) Outside the jury's presence, the State argued that by saying, "[h]e's not that type

of person," Childress characterized Morales "as a peaceful person" and that her testimony opened

the door to questions about "any violent offense." The State sought to rebut Childress' testimony and

       4
        At trial, Morales preserved an objection under Rules 404(b) and 609 of the Texas Rules of
Evidence; however, Morales does not cite, raise, or otherwise argue Rules 404(b) or 609 in his brief,
so we do not address them here and must assume, for purposes of this review, that, under Rules
404(b) and 609, the evidence was fundamentally relevant for an admissible purpose other than
conformity. TEX . R. EVID . 404(b), 609.

                                                 15
thereby "correct a false impression that's been put before the jury" by asking Childress if she knew

about Morales' prior arrests for violent crimes, which stem from 1993 through 2005. Morales

objected, asserting that the probative value of the extraneous-offense evidence was substantially

outweighed by the danger of unfair prejudice. The trial court overruled Morales' objection5 and

allowed the State to ask Childress if she knew about Morales being arrested for:

           Robbery in 1993;
           Battery of a police officer and resisting arrest in 1994;
           Obstructing a police officer in 1994;
           Obstructing a police officer and domestic violence battery in 1998;
           First-degree kidnapping in 2002;
           Domestic violence in 2003;
           Battery domestic violence in 2005; and
           Another battery domestic violence in 2005.

Standard of Review

           We review a trial court's admission or exclusion of extraneous-offense evidence for abuse

of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Moreover, a trial

court's decision regarding admissibility of evidence will be sustained if correct on any theory of law

applicable to the case, even when the court's underlying reason for the decision is wrong. Romero

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

           If a trial court determines that evidence of extraneous crimes or bad acts have relevance aside

from character conformity, and a timely, proper Rule 403 objection is made, the trial court must



           5
               The trial court granted Morales a running objection to all questions about Morales' prior
arrests.

                                                      16
make a balancing determination under Rule 403. Montgomery v. State, 810 S.W.2d 372, 388–89

(Tex. Crim. App. 1990) (op. on reh'g). Rule 403 provides that, "[a]lthough relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence." TEX . R. EVID . 403. Only "unfair" prejudice provides the basis

for exclusion of relevant evidence. Montgomery, 810 S.W.2d at 389. Unfair prejudice arises from

evidence that has an undue tendency to suggest that a decision be made on an improper basis,

commonly an emotional one. Id. We do not conduct a de novo review of the record with a view to

making a wholly independent judgment as to probative value versus prejudicial risk. Id. at 392. We

reverse a trial court's determination under Rule 403 "rarely and only after a clear abuse of discretion,"

recognizing that the trial court is in a superior position to gauge the impact of the relevant evidence.

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Jones v. State, 119 S.W.3d 412,

421–22 (Tex. App.—Fort Worth 2003, no pet.).

        The relevant criteria in determining whether the prejudice of an extraneous offense

substantially outweighs its probative value include, but is not limited to: (1) the strength of the

extraneous offense to make a fact of consequence more or less probable; (2) the potential the

extraneous-offense evidence has to impress the jury in some irrational, but nevertheless indelible

way; (3) the time needed to develop the evidence, during which the jury will be distracted from

consideration of the indicted offense; and (4) the proponent's need for the evidence to prove a fact



                                                   17
of consequence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. 2005) (citing Montgomery, 810

S.W.2d at 392); Mozon, 991 S.W.2d at 847.

        The first factor, probative value, weighs in favor of admission. The State claimed that

Childress put the false impression before the jury that Morales was a peaceful person, and the State

offered evidence of arrests for violent crimes to rebut that impression. The record shows Childress

testified, at best, that Morales was not the type of person to make threats, use abusive language, or

make threatening gestures toward an officer. The State mischaracterized the direct questions to

Childress and the answers she gave. However, Morales failed to object to the mischaracterization

or request an examination of the record for the specific questions and answers. The extraneous-arrest

evidence was probative of both how well Childress knew Morales and the foundation for her

characterization of Morales. Therefore, the prior arrests were probative to rebut the "false

impression."

        The second factor, the potential to give the jury an irrational impression, inquires as to the

evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense

charged. Mechler, 153 S.W.3d at 440. The prior arrests admitted into evidence included robbery,

battery of a police officer, resisting arrest, and domestic violence. The arrests for robbery and battery

of a police officer occurred more than a decade prior and are either identical or arguably worse than

the offense with which Morales was currently charged. The potential prejudice of nearly identical

acts is very high because it is stark proof of criminal character or propensity. Parks v. State, 746



                                                   18
S.W.2d 738, 739 (Tex. Crim. App. 1987). However, giving limiting instructions to the jury is a

factor to consider in determining whether the jury improperly considered the extraneous-arrest

evidence. Owens v. State, 827 S.W.2d 911, 916–17 (Tex. Crim. App. 1992). In this case, the trial

court gave a limiting instruction to the jury, and although not as narrowly tailored to the specific

issues involved as it could have been, the charge did seek to have the jury limit its use of the

extraneous-offense evidence.6 Therefore, we find that this factor weighs toward admission.

       The third factor, the time spent developing evidence of the extraneous arrests, was not unduly

lengthy. Childress' testimony regarding the extraneous arrests took up only about four pages in the

564-page record. Thus, this factor is neutral and favors neither exclusion nor admission. Blackwell

v. State, 193 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

       The fourth factor, the State's need for the extraneous-arrest evidence to prove a fact of

consequence, weighs in favor of admission. The State sought to rebut Childress' characterization

of Morales that he was "not that type of person" by showing that she did not know Morales that well

or that long, i.e., "the foundation of her belief [was] . . . incomplete." The question of whether

       6
           The following instruction was given to the jury and is not challenged on appeal:

               You are instructed that if there is any testimony before you in this case
       regarding the defendant having committed offenses other than the offense alleged
       against him in the indictment 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 intent, knowledge, design, and/or scheme 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.

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Morales was threatening the officers is directly related to his intent, and the State did not have other

evidence with which to rebut Childress' characterization of Morales' character. Therefore, the State

had need for this evidence.

       Considering all four factors together, we conclude that the probative value of the extraneous-

arrest evidence was not substantially outweighed by its prejudicial impact. Consequently, we hold

that the trial court properly overruled Morales' Rule 403 objection and overrule this point of error.

       We affirm the judgment.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        July 30, 2009
Date Decided:          August 12, 2009

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