Opinion issued November 26, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-01073-CR
                          ———————————
                 THOMAS CHARLES FRANKS, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 178th District Court
                          Harris County, Texas
                      Trial Court Case No. 1247514


                        MEMORANDUM OPINION

      A jury found appellant, Thomas Charles Franks, guilty of the offense of

deadly conduct 1 and assessed his punishment at confinement for two years and a


1
      See TEX. PENAL CODE ANN. § 22.05 (Vernon 2011).
fine of $10,000. In his sole issue, appellant contends that the trial court erred in

admitting evidence of extraneous offenses during the guilt phase of trial.

      We affirm.

                                    Background

      The complainant, Adnan Syed, testified that on January 9, 2010, he was

driving his Honda minivan along the Sam Houston Tollway, with his wife, three

children, mother, and nephew as passengers. Appellant, driving a black Mercedes

Benz, cut in front of him and slammed on his brakes, forcing the complainant to

change lanes. This occurred two more times before appellant moved into the lane

beside the complainant, rolled down his window, pointed a “pistol” toward the

front passenger tire of the minivan, and fired. The complainant heard a “pop” and

felt a “vibration” in the minivan. His wife called for emergency assistance and

reported the license plate number of the Mercedes Benz. The complainant parked

his minivan and waited for a police officer. He gave the responding police officers

a description of appellant and the Mercedes Benz. The next day, the complainant

identified appellant from a photographic lineup.

      Harris County Deputy Constable J. Wilder testified that he examined the

minivan and found “a small metal fragment” that was “brass in color” lodged in

the sidewall of the right-front tire. He opined that, based on his fifteen years in law

enforcement, the metal fragment was from a bullet. Deputy B. James opined that,

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based on his ballistics training, the fragment came from a bullet that hit the

concrete very close to the tire.       And, because the fragment was shallowly

embedded, but had not yet fallen from the tire, James concluded that it was “fresh.”

      Appellant testified that he was driving a Mercedes Benz on the Sam Houston

Tollway on the date of the incident, he saw the complainant and at least one

passenger in the minivan, and he shot at the right-front tire.      Appellant asserted,

however, that the complainant had been the aggressor because he approached

appellant “at a high rate of speed” and “tailgate[ed] him.” Appellant switched

lanes multiple times and tapped his brakes to warn the complainant to maintain a

safe distance, but the complainant continued to either tailgate him or cut in front of

him. When the minivan came up beside him, he saw the complainant reaching

“down between his seats apparently looking for something.” In response, appellant

retrieved his “Colt 32” pistol from behind his seat and held it to his chest. The

complainant was “gesturing wildly and apparently yelling,” but did not appear to

have anything in his hands. When the minivan came back into appellant’s lane a

third time, he “fired [his] pistol in the direction of [its] right-front tire.” Appellant

asserted that he “felt threatened,” thought his “life was in grave danger,” and

therefore, he had acted in self-defense.

      During direct examination, appellant’s counsel asked, “After you fired your

weapon, what did you do next?” Appellant responded, “Well, I was frightened at

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that point. And I’ve never done anything like this before. So, what I did—I’m

sorry.” Appellant explained that after the incident he left his Mercedes Benz a

mile from his house and reported it stolen in an effort “to provide an alibi” for

himself.

      Outside the presence of the jury, the State argued that appellant had opened

the door to extraneous offense evidence because he had created a false impression

that he had never before acted as the aggressor in such a situation. The State also

asserted that extraneous acts were admissible to rebut appellant’s theory of self-

defense. The State then alleged two prior extraneous acts by appellant. In the first,

appellant, believing that another motorist was attempting to force him off the road,

threw a bottle at the motorist. In the second, appellant, upset that the grass had not

been maintained at the house next door to his, confronted a real estate agent who

was showing the house to a client. Appellant then went inside his house, retrieved

a shotgun, and either exhibited it to or pointed it at the agent.

      Appellant argued that his testimony, “I’ve never done anything like this

before,” did not open the door to these extraneous acts because “he was purely

saying he had never been in this situation before where he shot at a tire.” The trial

court ruled that the extraneous acts were admissible because appellant had “opened

the door.” The trial court deferred its ruling on admissibility to rebut appellant’s




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self-defense theory. Appellant objected to “all questions related to the proffer,”

and the trial court overruled the objection.

      After the jury returned, the State questioned appellant about the first

incident, which occurred on May 17, 2009, as follows:

      [State]:         Isn’t it true that you believe that you were cut off by another
                       vehicle driven by Brittney Mercer?
      [Appellant]:     I was not cut off.
      ....
      [State]:         Isn’t it true that you tried to force Brittney Mercer off the
                       road?
      [Appellant]:     No.
      [State]:         Isn’t it true that when you were driving along the Grand
                       Parkway in Harris County, you ended up throwing a glass
                       bottle out of your car striking the car owned by Brittney
                       Mercer?
      [Appellant]:     It was not a glass bottle, no.
      [State]:         So what was it then that you threw?
      [Appellant]:     A bottle of Ozarka. A plastic bottle.
      [State]:         Did a plastic bottle of Ozarka cause $477.33 worth of
                       damage to Brittney Mercer’s car?
      [Appellant]:     I do not believe so.
      ....
      [State]:         But you did throw it at her car?
      [Appellant]:     I did.
      ....
      [State]:         Were you angry then?
      [Appellant]:     I was upset. I was not angry, no.
      [State]:         Was that self-defense?
      [Appellant]:     Yes.

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Appellant testified on re-direct that Mercer was trying to pass him and came into

his lane, forcing him off the road.

      The State then questioned appellant regarding the second incident, which

occurred on June 26, 2006, when real estate agent, Patricia Short, brought a family

to see the house next door to that of appellant, as follows:

      [State]:         . . . [I]sn’t it true that you were upset about the situation with
                       that house’s lawn, the grass not being cut to your standards?
      [Appellant]:     Yes.
      ....
      [State]:         . . . [D]id you grab your shotgun?
      [Appellant]:     Yes.
      [State]:         And you went inside your house and grabbed it?
      [Appellant]:     Yes.
      [State]:         Isn’t it true you came back outside with that shotgun?
      [Appellant]:     I did.
      [State]:         You made that shotgun visible to them?
      [Appellant]:     Yes.
      [State]:         Shortly after them seeing that shotgun, they drove off?
      [Appellant]:     Yes.
      ....
      [State]:         Did they threaten you?
      [Appellant]:     Yes.
      [State]:         So, was that self-defense?
      [Appellant]:     Yes.




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       The trial court then ruled that the extraneous offenses were admitted for the

purpose of refuting appellant’s theory of self-defense. The trial court found that

the probative value outweighed the danger of unfair prejudice. In the jury charge,

the trial court instructed the jury not to consider the extraneous acts unless it first

found beyond a reasonable doubt that appellant committed the acts and, if so, to

then consider the evidence only for purposes of determining appellant’s motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.

                                Standard of Review

       We review a trial court’s evidentiary rulings under an abuse of discretion

standard. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009). A

trial court abuses its discretion if it acts arbitrarily or unreasonably, without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990). We will affirm a trial court’s ruling unless it

falls outside the “zone of reasonable disagreement.” De La Paz, 279 S.W.3d at

344.   A trial court’s ruling on the admissibility of an extraneous offense is

“generally within this zone if the evidence shows that . . . an extraneous transaction

is relevant to a material, non-propensity issue, and . . . the probative value of that

evidence is not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.”        Id.   “[I]f the trial court’s

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evidentiary ruling is correct on any theory of law applicable to that ruling, it will

not be disturbed,” regardless of the reason for the ruling. Id.

                                Extraneous Offenses

      In his sole issue, appellant argues that the trial court erred “in admitting into

evidence extraneous offense testimony during the guilt/innocence phase of trial”

because his testimony did not “open the door” to the evidence, the “evidence was

not relevant to rebut [a]ppellant’s claim of self defense,” and the probative value of

the evidence was substantially outweighed by the danger of unfair prejudice.

      An extraneous offense is “any act of misconduct, whether resulting in

prosecution or not, which is not shown in the charging instrument and which was

shown to have been committed by the accused.” Martinez v. State, 190 S.W.3d

254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). “Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person to show

action in conformity therewith.” TEX. R. EVID. 404(b). However, this evidence

“may be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Id. Rebuttal of a defensive theory is one of the “other purposes” for which

extraneous-offense evidence may be admitted under rule 404(b). Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009).




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      Here, appellant raised the issue of self-defense when he testified that he “felt

threatened” and thought his “life was in grave danger” at the time he shot at the

front tire of the complainant’s minivan. “When the accused claims self-defense or

accident, the State, in order to show the accused’s intent, may show other violent

acts where the defendant was an aggressor.” Lemmons v. State, 75 S.W.3d 513,

523 (Tex. App.—San Antonio 2002, pet. ref’d) (citing Halliburton v. State, 528

S.W.2d 216, 218 (Tex. Crim. App. 1975)); see Robinson v. State, 844 S.W.2d 925,

929 (Tex. App.—Houston [1st Dist.] 1992, no pet.).

      The State presented appellant’s testimony regarding two prior violent acts in

which he acted as an aggressor and later asserted that he had acted in self-defense.

In the first instance, appellant admitted that in 2009, while traveling on a freeway,

he threw a bottle at another motorist, whom he believed had driven into his lane

and had attempted to force him off the road. Similar to the instant case, appellant

used a weapon toward the motorist, asserting that she had forced him off the road,

and he asserted that he had acted in self-defense.

      In the second instance, appellant testified that in 2006, he was upset that the

lawn next door had not been properly mowed. He admitted that when the real

estate agent arrived to show the house to a client, he went back into his house,

retrieved a shotgun, and “made the shotgun visible to them,” such that they left.

Appellant asserted that the agent and her client, a family, had threatened him and

                                          9
he had acted in self-defense. Similar to the instant case, appellant purposefully

retrieved a firearm in response to a perceived threat.

      The extraneous-offense testimony by appellant, if believed by the jury,

demonstrated prior similar acts in which appellant acted as an aggressor. See

Lemmons, 75 S.W.3d at 523; see also Robins v. State, 01-99-00451-CR, 2002 WL

1980887, at *2 (Tex. App.—Houston [1st Dist.] Aug. 29, 2002, pet. ref’d) (not

designated for publication) (holding that, upon claim of self-defense, extraneous

offense evidence showing defendant’s aggressive behavior was admissible to show

intent). This extraneous offense evidence is relevant to rebut appellant’s theory of

self-defense in the instant case. See Williams, 301 S.W.3d at 687; Lemmons, 75

S.W.3d at 523; see also Robins v. State, 01-99-00451-CR, 2002 WL 1980887, at

*2. Thus, the trial court did not abuse its discretion in determining that the

evidence was admissible under rule 404(b). See Powell v. State, 63 S.W.3d 435,

439 (Tex. Crim. App. 2001).

      Appellant asserts that “[t]he State’s primary motivation for seeking

admission of the alleged wrongful acts . . . was not to rebut the defense’s theory of

self-defense, but to show that at the time of the incident on trial the defendant acted

in conformity with the State’s opinion of his character.”         (Emphasis added.)

Appellant directs us to the State’s closing argument, in which it stated that

appellant “is a dangerous person” and “is the kind of person” who carries a gun

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and “uses it when it is not reasonably necessary.”           Relying on Montgomery,

appellant argues that if extraneous-offense evidence is not relevant apart from

supporting an inference of character conformity, it is inadmissible under rule

404(b). See Montgomery, 810 S.W.2d at 387. Having concluded that the evidence

has relevance apart from supporting an inference of character conformity, we

cannot conclude that the trial court abused its discretion in ruling that it was

admissible. See id. at 380.

      Next, appellant argues that, even if the extraneous evidence is admissible, it

should have been excluded because its probative value was substantially

outweighed by the danger of unfair prejudice.

      “Although 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. “A rule 403 objection is

not implicitly contained in relevancy or 404(b) objections; rather, a specific rule

403 objection must be raised to preserve error.” Lopez v. State, 200 S.W.3d 246,

251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); see Johnston v. State, 145

S.W.3d 215, 220 n.13 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 388

(stating that objection on basis of rule 403 is required).




                                          11
       Here, appellant objected to the admission of the extraneous-offense evidence

on the basis that he did not believe that his testimony created a false impression. In

addition, appellant objected to the “questions related to the proffer.” Because he

did not make a specific rule 403 objection in the trial court, appellant did not

preserve his rule 403 challenge. See TEX. R. APP. P. 33.1; Montgomery, 810

S.W.2d at 388–89; Williams v. State, 930 S.W.2d 898, 901 (Tex. App.—Houston

[1st Dist.] 1996, pet. ref’d) (holding defendant’s “general” rule 403 objection

insufficient to preserve error because it failed to identify which of five distinct

grounds for excluding evidence listed in rule was being argued as basis for

exclusion); see also Guy v. State, 160 S.W.3d 606, 615–16 (Tex. App.—Fort

Worth 2005, pet. ref’d) (holding appellate issue based on alleged violation of rule

403 must be preceded by specific objection).

      Because we conclude that the extraneous-offense evidence is admissible to

rebut appellant’s self-defense theory, we hold that the trial court did not abuse its

discretion in admitting the evidence. See De La Paz, 279 S.W.3d at 344 (“[I]f the

trial court’s evidentiary ruling is correct on any theory of law applicable to that

ruling, it will not be disturbed.”).

      Accordingly, we overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.



                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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




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