












 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO.  
2-02-223-CR
 
LARRY EDWARD KARNES                                                      APPELLANT  
 
V.
 
THE STATE OF TEXAS                                                                  STATE  
 
------------
 
FROM  
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY  
 
------------
 
OPINION
 
------------
 
        I.  Introduction  
 
        The State charged Appellant Larry Karnes (“Karnes”) with robbery by  
threats.  The indictment included enhancement and habitual offender notices  
based upon two prior felony convictions.  Karnes pleaded not guilty to the  
charged offense and true to the enhancement and habitual offender paragraphs.  
A jury convicted Karnes and assessed punishment at 55 years’ confinement.  
In two points on appeal, Karnes contends that the trial court erred by admitting  
evidence of an extraneous offense for the purpose of proving identity and by  
admitting victim-impact evidence based on extraneous offenses during the  
punishment phase of trial.  We will affirm.
II. Background Facts
        On August 30, 2001, Teresa Garver (“Garver”) pulled into the parking lot  
of a Walgreens store in Arlington, Texas.  Upon entering the lot, Garver noticed  
a white Ford pickup truck.  As Garver parked her vehicle, she saw the truck pull  
up behind her car and block her in.  A young girl exited the truck and  
approached Garver’s car.  The girl asked for directions and stated that she  
could not hear Garver’s response with the windows rolled up.  When Garver  
rolled her window down, Karnes approached Garver’s car and leaned on the car  
door, blocking Garver’s exit.  Karnes demanded that Garver give him money, to  
which she responded that she did not have any money.  With his hands hidden  
behind his back, Karnes told Garver, “Don’t make me use this.”  Garver was  
frightened by the threat and believed Karnes had a gun.  Moreover, the girl with  
Karnes told Garver that Karnes was serious and that Garver should not mess  
with him.  Karnes then told Garver that he did not want anybody to get hurt.        At that point, a woman exited the Walgreens and walked to a car directly  
next to Garver’s car where her husband was parked.  Karnes then returned to  
his truck and moved it to allow the woman and her husband to back out of their  
parking space.  While Karnes was moving his truck, Garver opened her car  
door, pushed the girl out of her way, and ran into the Walgreens.  Once inside  
the store, Garver told a manager what had occurred and the manager  
immediately telephoned the police.
        Approximately ten minutes later, less than one mile down the road,  
another woman, Judy Allen (“Allen”), was robbed outside of a Dillard’s by a  
man driving a white Ford truck.  As Allen was attempting to enter her car, she  
felt a tug on her purse.  After a very hard second tug, Allen was drug by her  
purse to the truck and pulled to the ground as the truck sped away.  As the  
assailant drove away with Allen’s purse, she memorized the license plate  
number.
        Byron Stewart (“Stewart”), an Arlington Police Detective assigned to  
investigate Garver’s robbery, testified that the robberies of Garver and Allen  
were recognizably similar because of the descriptions of the perpetrators and  
the white truck.  Accordingly, Stewart testified that he contacted Allen to  
obtain the license plate number of her assailant, ran the plate number through  
the police computer file, and determined that the plate number was registered  
to Karnes.  After verifying that Karnes was the owner of the truck, Stewart  
testified that he developed a photo-spread containing Karnes’s picture and that  
of five other men with similar characteristics and showed the photo-spread to  
Garver.  According to Stewart, Garver was able to positively identify Karnes in  
“[n]o longer than five seconds.”  The police later arrested Karnes for the  
robbery of Garver.
III.  Extraneous Offense Identity Evidence
        In his first point, Karnes contends that the trial court erred by admitting  
an extraneous offense for the purpose of proving identity in violation of rule  
404(b) of the Texas Rules of Evidence.  Karnes claims that the Allen offense  
was not sufficiently similar to the charged offense to show a unique signature.  
Moreover, he maintains that even if the extraneous offense evidence was  
relevant, the probative value of the evidence was substantially outweighed by  
its prejudicial effect.
        A.  Standard of Review for a Determination Under Rule 404(b)
        Rule 404(b) embodies the established principle that a defendant is not to  
be tried for collateral crimes or for being a criminal generally.  Tex. R. Evid.  
404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992); Booker  
v. State, 103 S.W.3d 521, 530 (Tex. App.—Fort Worth 2003, pet. denied) (op.  
on reh’g); Curtis v. State, 89 S.W.3d 163, 170 (Tex. App.—Fort Worth 2002,  
pet. ref'd). Consequently, extraneous offenses are not admissible at the  
guilt-innocence phase of trial to prove that a defendant acted in conformity with  
his character by committing the charged offense.  Tex. R. Evid. 404(b); Booker,  
103 S.W.3d at 529; Martin v. State, 42 S.W.3d 196, 201 n.2 (Tex. App.—Fort  
Worth 2001, pet. ref'd).  
        An extraneous offense, however, has noncharacter-conformity relevance  
where it has any tendency to make the existence of a fact that is of  
consequence to the determination of the action more or less probable than it  
would be without the evidence.  Tex. R. Evid. 401; Powell v. State, 63 S.W.3d  
435, 438 (Tex. Crim. App. 2001).  That is, extraneous offense evidence that  
tends to make more or less probable an elemental or evidentiary fact or tends  
to rebut some defensive theory is relevant beyond its tendency to prove a  
person's character or that he acted in conformity therewith.  Montgomery v.  
State, 810 S.W.2d 372, 386-87 (Tex.  Crim. App. 1991) (op. on reh'g);  
Johnson v. State, 932 S.W.2d 296, 301 (Tex.  App.—Austin 1996, pet. ref'd).   
Consequently, evidence of other crimes or extraneous misconduct may be  
admissible to prove motive, opportunity, intent, preparation, plan, knowledge,  
identity, or absence of mistake or accident.  Tex. R. Evid. 404(b); Booker, 103  
S.W.3d at 529-30.  The State, as the proponent of extraneous offense  
evidence, bears the burden of showing admissibility.  See Rankin v. State, 974  
S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh'g).
        The trial court's task is to determine whether extraneous offense  
evidence is relevant for a purpose other than the propensity of the defendant  
to commit crimes or other bad acts.  Booker, 103 S.W.3d at 530.  Rulings on  
relevance should be left largely to the trial court, relying on its own  
observations and experience, and will not be reversed absent an abuse of  
discretion.  Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.), cert.
denied, 510 U.S. 966 (1993); Corley v. State, 987 S.W.2d 615, 618 (Tex.  
App.—Austin 1999, no pet.).  Moreover, appellate courts should give great  
discretion to the trial courts in matters of relevancy, reversing only if the trial  
court acts outside "the zone of reasonable disagreement."  Montgomery, 810  
S.W.2d at 391.  A trial court's ruling on admissibility should not be disturbed  
simply because an appellate judge might decide a question differently than the  
trial judge.  Id.  So long as the trial court's decision to admit or exclude  
evidence falls in the zone within which reasonable minds may differ, appellate  
courts should refrain from disturbing the trial court's decision on appeal.  Id.;  
Osby v. State, 939 S.W.2d 787, 789 (Tex. App.—Fort Worth 1997, pet. ref'd).
        B.  404(b) Relevance Determination on the Issue of Identity 
        The trial court allowed the State to introduce evidence regarding the Allen  
offense.  The State argues that the Allen offense was relevant to the issue of  
identity in the Garver offense because the two offenses were similar in nature,  
and the facts of the Allen offense were integral to explain how Karnes became  
a suspect in the primary offense.  Furthermore, the State contends that the  
defense opened the door during cross-examination of Garver by making identity  
a contested issue. Karnes maintains that the evidence related to the Allen  
offense was irrelevant because it lacked sufficient similarity to render it  
admissible on the issue of identity in the Garver offense. 
        Identity is an "elemental fact" in every criminal case with relevance apart  
from character conformity.  Montgomery, 810 S.W.2d at 387.  
Cross-examination of the State's identifying witnesses can raise the issue of  
identity when the witness is impeached about a material detail of the  
identification or the conditions surrounding the offense charged and the  
witness's identification of the defendant in that situation.  Siqueiros v. State,  
685 S.W.2d 68, 71 (Tex. Crim. App. 1985).  When identity is an issue in the  
case, evidence of an extraneous offense may be admissible to show identity.  
Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Avila v. State,  
18 S.W.3d 736, 739 (Tex. App.—San Antonio 2000, no pet.).  Typically, to be  
relevant to the issue of identity, extraneous offenses must share multiple  
common characteristics, or the device used in each offense must be so unusual  
and distinctive as to be like a signature.  See, e.g., Taylor v. State, 920 S.W.2d  
319, 322 (Tex. Crim. App.), cert. denied, 519 U.S. 951 (1996).  That is, "to  
be admissible to show identity, an extraneous offense must be so similar to the  
charged offense as to mark the offenses as the defendant's handiwork."  
Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002).  In  
determining similarity of the offenses for the purpose of establishing identity,  
courts should take into account both the specific characteristics of the various  
offenses and the time interval between them.  Id. at 651.  Sufficient similarity  
may be shown by proximity in time and place or by a common mode of  
committing the offenses.  Lane, 933 S.W.2d at 519.
        Among the cases upholding admission of evidence of extraneous offenses  
in order to prove identity is Walker v. State, an aggravated rape case, which  
held six extraneous offenses to be sufficiently similar based on the following:
All the transactions took place at night, in the same area, within a
period of one month.  In each case appellant was alone and carried
a small gun.  The victims were tied in a similar manner, and robbery
preceded rape in the four instances in which the victim was raped. 
Appellant took all coins but pennies from the victims who had
coins.  

588 S.W.2d 920, 924 (Tex. Crim. App. [Panel Op.] 1979).  In Ransom, the
Court of Criminal Appeals held that offenses were sufficiently similar because
the offenses were three days apart and both offenses were robberies
committed at gunpoint by the defendant and an accomplice. 503 S.W.2d at
813.  More recently, in Johnson, the Court of Criminal Appeals held that
offenses committed within a few hours of each other, directed at lone women,
and involving another victim's red Ford Taurus were sufficiently similar.  68
S.W.3d at 650-52.
        During cross-examination at trial, the defense questioned Garver about  
the circumstances surrounding the robbery.  In particular, the questioning  
focused on the high traffic in the area at the time of the robbery, Garver’s  
ability to see her assailant’s face, the length of Garver’s contact with her  
assailant, and the time elapsed between the robbery and her subsequent  
identification of Karnes in the photo-spread.  Before redirect examination of  
Garver, the State argued outside the presence of the jury that the defense  
counsel’s cross-examination had raised the issue of identity.  The State  
contended that the Allen offense was admissible under rule 404(b), maintaining  
that the Allen offense was relevant due to a similar modus operandi.  In  
response, the defense denied raising the issue of identity and disputed the  
similarities between the Allen and the Garver offenses.  Thereafter, the court  
permitted the State to introduce evidence of the Allen robbery and instructed  
the jury to consider the extraneous offense only with regard to the issue of  
identity.

        The record demonstrates that the Allen robbery was committed  
approximately ten minutes later than and less than a mile from the Garver  
robbery.  See Johnson, 68 S.W.3d at 651 (noting that the exactness that might  
be required of an offense committed at a remote period of time might not  
necessarily be required for an offense committed within a very short period of  
time).  The evidence also indicates that both offenses were committed in  
commercial parking lots against lone females who were in the vicinity of their  
vehicles.  In both the Garver offense and the Allen offense, a white Ford truck  
was strategically placed behind the victim’s vehicle to facilitate the robbery.  
See Pena v. State, 867 S.W.2d 97, 99 (Tex. App.—Corpus Christi 1993, pet.  
ref’d) (stating that the repeated use of the same car in similar offenses may  
constitute a signature).  Although the means used to effectuate the offenses  
were different, the goal of both offenses was to steal property from the victims  
by catching them off guard.  See Ransom, 503 S.W.2d at 813 (stating that an  
identical modus operandi is not necessary to render an extraneous offense  
relevant to the issue of identity in the primary offense).
        According deference to the trial court's reliance on its own observations  
and experience in making a rule 404(b) relevancy determination, we cannot say  
that the trial court abused its discretion by finding that the evidence of the Allen  
offense was relevant for the purpose of proving identity in the Garver robbery.  
We conclude that the proximity in time and place of each offense, the common  
mode in which they were committed, and the circumstances surrounding the  
offenses were sufficiently similar to justify admission of the extraneous offense  
evidence on the issue of identity.
        C.  Standard of Review for a Determination Under Rule 403
        We next review Karnes’s contention that the trial court abused its  
discretion by admitting evidence of the Allen offense because any probative  
value of the evidence was substantially outweighed by its prejudicial effect.  If  
a trial court determines that evidence of other crimes or extraneous misconduct  
has relevance aside from character conformity, and a timely, proper rule 403  
objection is made, the trial court must make a balancing determination under  
rule 403.  Montgomery, 810 S.W.2d at 388-89.  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.  Rule 403 favors admissibility and a presumption exists  
that relevant evidence will be more probative than prejudicial.  Id.; DeLeon v.  
State, 77 S.W.3d 300, 315 (Tex. App.—Austin 2001, pet. ref’d).  In evaluating  
the trial court's determination under rule 403, a reviewing court is to reverse  
the trial court's judgment "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); Montgomery, 810 S.W.2d at 389; Curtis, 89 S.W.3d at 170.
        The trial court's balancing determination must be measured against the  
relevant criteria by which a rule 403 decision is made.  Tex. R. Evid. 403;  
Mozon, 991 S.W.2d at 847.  The relevant criteria in determining whether the  
prejudice of an extraneous offense substantially outweighs its probative value  
include:  (1) how compellingly the extraneous offense evidence serves to make  
a fact of consequence more or less probable—a factor which is related to the  
strength of the evidence presented by the proponent to show the defendant in  
fact committed the extraneous offense; (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, that is, 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.  Id.  (citing Montgomery, 810 S.W.2d at 389-90).  When the  
relevant criteria are viewed objectively and lead to the conclusion that the  
danger of unfair prejudice substantially outweighs the probative value of the  
proffered evidence, the appellate court should declare that the trial court erred  
in failing to exclude it.  Curtis, 89 S.W.3d at 170 (citing Montgomery, 810  
S.W.2d at 392).
        D.  Rule 403 Balancing Test
        Karnes argues that the trial court abused its discretion by admitting  
evidence of the Allen offense because the offense was dissimilar to the Garver  
offense, and the prejudicial effect of the Allen offense evidence was  
substantial.  He further argues that the State’s need for the Allen offense  
evidence was low because Garver positively identified Karnes as the man who  
robbed her.
        1.  Factor One—Degree of Relevance and Strength of Evidence
        Applying the rule 403 balancing factors set out in Montgomery, we first  
examine how compelling the Allen offense is to the issue of identity in the  
Garver offense.  In performing this review, we also examine the strength of the  
evidence connecting Karnes to the Allen offense.  See Montgomery, 810  
S.W.2d at 390.  Although Allen could not positively identify Karnes as the man  
who robbed her, the evidence indicates that she was able to accurately describe  
and provide a license plate number for the vehicle.  Moreover, due to Allen’s  
report, the police were able to verify Karnes’s ownership of the vehicle.  Based  
on the similarity of the vehicle and suspect descriptions and the proximity in  
time and place of the offenses, the police were able to link the offenses and  
provide Garver with a photo-spread, wherein she identified Karnes as her  
assailant.
        Thus, the evidence at trial did tend to connect Karnes to the Allen  
offense.  We acknowledge that extraneous offense evidence has an “inherent  
probativeness” by reason of the similarity of the extraneous offense to the  
charged offense.  Booker, 103 S.W.3d at 534 (quoting Montgomery, 810  
S.W.2d at 389-90).  However, the probative value of the extraneous offense  
evidence was somewhat lessened by differences, including the fact that the  
charged offense was committed by threats while the extraneous offense was  
employed by force.  Yet, in both offenses, the assailant drove a white Ford  
truck and robbed lone females in a commercial parking lot.
        The evidence of the Allen offense must also be given less weight due to  
the State’s identification evidence.  As enumerated in Montgomery, “[w]hen the  
proponent has other compelling or undisputed evidence to establish the  
proposition or fact that the extraneous misconduct goes to prove, the  
misconduct evidence will weigh far less than it otherwise might in the  
probative-versus-prejudicial balance."  810 S.W.2d at 390.  At trial, Garver  
positively identified Karnes as her assailant, and the State introduced evidence  
of Garver’s prior identification of Karnes in the photo-spread.  On the other  
hand, however, during both cross-examination and closing argument, the  
defense rendered identity a disputed issue by repeatedly attacking Garver’s  
ability to properly identify her assailant.  Thus, we conclude that the first  
Montgomery factor weighs very slightly in favor of admissibility of the Allen  
offense for the purpose of proving identity in the Garver offense.  
2.  Factor Two—Irrational, Indelible Impression
        The second Montgomery factor requires courts to evaluate the potential  
the extraneous offense evidence has to irrationally impress the jury.  We are  
mindful that a similar extraneous offense always carries the potential to create  
prejudice in the minds of the jury.  Lane, 933 S.W.2d at 520.  However,  
according to the Texas Court of Criminal Appeals, the impermissible inference  
of character conformity can be minimized through a limiting instruction to the  
jury.  Id.  Given the nature of the Allen offense, we cannot conclude that the  
evidence was inherently inflammatory or that it was likely to create such  
prejudice in the minds of the jury that it would have been unable to limit its  
consideration of the Allen offense evidence to its proper purpose.  See Taylor,  
920 S.W.2d at 323; Montgomery, 810 S.W.2d at 397.  Accordingly, we hold  
that the second factor weighs in favor of admissibility of the Allen offense.
        3.  Factor Three—Time Needed
        The third factor, the time the proponent needs to develop the extraneous  
offense, during which the jury is distracted from consideration of the charged  
offense, also weighs in favor of the admissibility of the Allen offense.  Our  
review of the record reveals that the State spent a relatively short length of  
time presenting evidence of the Allen offense.  Evidence of the Allen offense  
was limited to a factual synopsis of the offense and an explanation as to how  
Karnes was identified as a subject in the Garver offense based upon information  
received by Allen.  Although the guilt-innocence portion of the trial lasted only  
approximately half of one day, the State spent the majority of its time proving  
the Garver offense.  See Booker, 103 S.W.3d at 536 (noting third Montgomery  
factor weighed in favor of admitting extraneous offense when trial time spent  
proving extraneous offense was less than time spent proving charged offense).  
The third Montgomery factor weighs in favor of admissibility of the Allen  
offense.
        4.  Factor Four—State's Need
        Finally, we consider the fourth Montgomery factor, the State’s need for  
the extraneous offense evidence.  The State may not introduce extraneous  
offenses as circumstantial evidence of an element in its case-in-chief if that  
element can readily be inferred from other uncontested evidence.  DeLeon, 77  
S.W.3d at 312 (citing Clark v. State, 726 S.W.2d 120, 122 (Tex. Crim. App.  
1986)).  However, when identity is “a hotly contested issue,” the State’s need  
to offer evidence of an extraneous offense is strong.  See Lane, 933 S.W.2d  
at 520-21.  
        At trial, identity was the seminal issue in dispute and the crutch of  
Karnes’s defense.  For example, although Garver had positively identified  
Karnes as her assailant in the photo-spread, the defense attacked her  
identification during cross-examination by questioning her ability to properly  
identify her assailant.  Further, during closing arguments, the defense vigorously  
contested whether Karnes was proven to be Garver’s assailant beyond a  
reasonable doubt.  Moreover, the evidence regarding the Allen offense was  
interrelated to the Garver offense because it demonstrated how Karnes was  
identified as a suspect.  Thus, we conclude that the fourth Montgomery factor  
weighs heavily in favor of admissibility of the Allen offense.
        Our review of the record and the relevant criteria under rule 403  
demonstrates that the probative value of the Allen offense evidence was not  
substantially outweighed by its prejudicial impact.  Consequently, we hold that  
the trial court did not abuse its discretion in admitting evidence of the Allen  
extraneous offense.  See Montgomery, 810 S.W.2d at 392-93.  Having  
determined that evidence of the Allen offense was relevant to the issue of  
identity in the charged offense and that the probative value was not  
substantially outweighed by its prejudicial effect, we overrule Karnes’s first  
point.  IV.  Extraneous Offense Victim-Impact Evidence
        In his second point, Karnes argues that the trial court erred by admitting  
extraneous offense victim-impact evidence at the punishment phase of trial.   
He maintains that the victim-impact evidence was extremely prejudicial because  
it constituted a significant portion of the State’s evidence during the  
punishment phase of trial.  He further contends that the trial court’s instruction  
to disregard was insufficient to cure the harm already procured by the evidence.  
        A.  Error Analysis
        A trial court has broad discretion in determining the admissibility of  
evidence presented at the punishment phase of trial.  See Moreno v. State, 1  
S.W.3d 846, 861 (Tex. App.—Corpus Christi 1999, pet. ref'd).  Moreover, the  
Texas Code of Criminal Procedure permits the introduction of evidence on any  
matter the trial court deems relevant to sentencing, including evidence of other  
crimes or bad acts.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)  
(Vernon Supp. 2003).  However, victim impact testimony regarding extraneous  
crimes is inadmissible during the punishment phase of trial.  See Cantu v. State,  
939 S.W.2d 627, 637 (Tex. Crim. App.), cert. denied, 522 U.S. 994 (1997).   
 Victim-impact testimony based on an extraneous offense is irrelevant, unduly  
prejudicial, and potentially damaging to a defendant’s right to receive a fair  
punishment hearing.  See Boston v. State, 965 S.W.2d 546, 550 (Tex.  
App.—Houston [14th Dist.] 1997, no pet.).  Therefore, victim-impact testimony  
is limited to the victim named in the indictment.  See Cantu, 939 S.W.2d at  
637.
        Karnes complains that the trial court erred by permitting victim-impact  
testimony from three witnesses who were called to testify regarding prior  
crimes or acts of misconduct.  During the punishment phase of trial, the State  
called Nora Villegas (“Villegas”) to testify about an extraneous offense that  
occurred two days prior to the Garver offense.  Villegas testified that upon  
parking in a parking lot of a K-Mart in Arlington, Texas, she was approached by  
Karnes after he exited a white truck that was parked behind her.  She described  
how Karnes had wedged his body between her open car door, threatened her  
with violence, and demanded her wallet.  The State then asked Villegas how  
the event affected her life, wherein she responded that, since the robbery, she  
is scared anytime she parks her car at a store, and she always feels like  
someone is going to approach her.  She also testified that she was scared at  
the time of the robbery because she was pregnant and that she moved away  
from the area the next day.
        During the entire course of Villegas’s testimony, the defense made no  
objection that her testimony constituted impermissible victim-impact testimony.  
Instead, the defense objected only that Villegas’s testimony was irrelevant,  
highly prejudicial, and below the threshold requirement of admissibility.  
Therefore, although Karnes challenges Villegas’s testimony as inadmissible  
victim-impact testimony, we conclude that Karnes has failed to preserve any  
error regarding its admission because the objection at trial does not comport  
with the complaint raised on appeal.  See Ibarra v. State, 11 S.W.3d 189, 197  
(Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000).
        Karnes also complains that the trial court erred by allowing victim-impact  
testimony from two of the State’s other witnesses, Judy Allen and Rizla Kay  
Barmore
 (“Barmore”).  Prior to the development of Allen’s testimony, Karnes  
conceded that Allen could testify to the extraneous offense; however, he
lodged his objection to any victim-impact evidence based on the offense,
contending such evidence was irrelevant.  The trial court overruled Karnes’s
objection, and thereafter, Allen testified that she had sustained numerous
physical injuries and would need knee surgery as a result of the extraneous
offense.  She further testified that since the incident she had suffered from
nightmares and had constantly thought about lying on her back in the parking
lot and the tire coming dangerously close to her head.  Karnes objected to the
admission of extraneous offense victim-impact evidence during the testimony
of Barmore, as well.  After the trial court overruled his objection, Barmore
testified that she frequently had nightmares as a result of the robbery and
thereafter became too scared to work for convenience stores, despite having
done so for approximately twenty years.
        After reviewing the record, we conclude that the trial court erred by  
permitting victim-impact testimony from both Allen and Barmore.
        B.  Harm Analysis.
        Having found error, we must conduct a harm analysis to determine  
whether the error calls for reversal of the judgment.  Tex. R. App. P. 44.2.  If  
the error is constitutional, we apply rule 44.2(a) and reverse unless we  
determine beyond a reasonable doubt that the error did not contribute to  
appellant’s conviction or punishment.  Tex. R. App. P. 44.2(a).  Otherwise, we  
apply rule 44.2(b) and disregard the error if it does not affect the appellant’s  
substantial rights.  Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d  
249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070  
(1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex. App.—Fort Worth  
1998, pet. ref’d) (en banc).
        Constitutional error is "an error that directly offends the United States  
Constitution or the Texas Constitution without regard to any statute or rule that  
might also apply."  Alford v. State, 22 S.W.3d 669, 673 (Tex. App.—Fort  
Worth 2000, pet. ref'd).  Constitutional error is only present when a ruling is  
constitutionally required; however, mere misapplication of the rules of evidence  
is not constitutional error.  Id. Thus, erroneously admitted victim-impact  
evidence does not amount to constitutional error.  Lindsay v. State, 102  
S.W.3d 223, 228 (Tex. App.—Houston [14th Dist.] 2003, pet. filed).
        Because we determine that the error is not constitutional, rule 44.2(b) is  
applicable.  Therefore, we are to disregard the error unless it affected  
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 on
the jury’s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)
(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253
(1946)); Coggeshall, 961 S.W.2d at 643.  In making this determination, we
review the record as a whole.  Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at
1248.
        In the present case, several factors are present that, when considered  
together, prevent this error from being a violation of Karnes’s substantial rights.  
For example, prior to the presentation of his case, Karnes again objected to the  
extraneous offense victim-impact testimony by Villegas, Allen, and Barmore.  
The trial court sustained Karnes’s objection, instructed the jury to disregard all  
victim-impact evidence not related to the Garver offense, and polled the jury to  
affirm each person’s ability to follow the curative instruction.
        As a general rule, error in admitting improper evidence may be corrected  
by a withdrawal of the evidence and an instruction to disregard, except in  
extreme cases where it appears that the evidence is clearly calculated to  
inflame the minds of the jury and is of such character as to suggest the  
impossibility of withdrawing the impression produced on their minds.  Waldo v.  
State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988).  The effectiveness of  
curative instructions is determined on a case-by-case basis.  See Swallow v.  
State, 829 S.W.2d 223, 227 (Tex. Crim. App. 1992).  However, we must  
presume that the jury followed the trial court's instructions, absent any indicia  
to the contrary.  Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.  
1998).  In reviewing the record, we have found no indication that the trial  
court’s instruction to disregard was insufficient to cure the harm procured by  
the extraneous offense victim-impact testimony.  In fact, the trial court  
specifically polled the jury to ensure that the jury was able to disregard the  
evidence in determining Karnes’s punishment.
        The record also demonstrates that the victim-impact testimony comprised  
only a small portion of the evidence at the punishment phase of trial and that  
the jury was presented with other evidence in order to assess the proper  
punishment for Karnes.  The jury heard victim-impact testimony from Garver  
about the changes in her life as a result of the robbery.
  Officer Ted Eby of the  
Arlington Police Department testified that, approximately two weeks before the
Garver offense, he arrested Karnes for shoplifting at a Wal-Mart Supercenter
and found him in possession of an illegal switchblade. The jury also knew about
Karnes two prior felony convictions, as well as the other extraneous offenses
testified to at sentencing.
        Additionally, we see nothing in the record which indicates that the State  
unduly emphasized the victim-impact testimony.  During closing argument, the  
State focused on Karnes’s numerous convictions and acts of misconduct  
throughout the years, but did not mention the impact the crimes had on the  
victim’s lives.  The only reference to the victim-impact evidence was a brief  
reminder to the jury of the injuries that Allen had sustained as a result of the  
extraneous offense.  Moreover, despite the evidence of his prior convictions and  
misconduct, the jury assessed a mid-range punishment: a fifty-five year  
sentence out of a range of twenty-five years to ninety-nine years.
        Under these circumstances, 
 we conclude that, in the context of the entire  
case against Karnes, the trial court’s error in admitting extraneous offense 
victim-impact evidence did not have a substantial or injurious effect on the 
jury’s verdict and did not affect appellant’s substantial rights.  See King, 953 
S.W.2d at 271.  Thus, we disregard the error.  See Tex. R. App. P. 44.2(b). 
Accordingly, we overrule Karnes’s second point.
V.  Conclusion
        Having overruled Karnes’s two points, we affirm the trial court’s 
judgment.
 
                                                  SUE WALKER
                                                  JUSTICE
 
PANEL F:   HOLMAN, GARDNER, and WALKER, JJ. 
 
PUBLISH
 
DELIVERED: October 30, 2003
