Affirmed and Opinion filed August 13, 2015.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-14-00378-CR

                    CLYDE EDWIN HEDRICK, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Cause No. 13CR0898

                                 OPINION


      A jury convicted appellant Clyde Edwin Hedrick of involuntary
manslaughter and sentenced him to 20 years’ confinement. Appellant challenges
his conviction and sentence in two issues. First, he argues that his due process
rights were violated due to insufficient notice of punishment enhancement.
Appellant further asserts that the trial court abused its discretion by allowing
evidence of extraneous acts, over his objection, during the guilt/innocence phase of
his trial. Because the extraneous acts were relevant, and more probative than
prejudicial, and because appellant received adequate notice of enhancement, we
affirm.

              I.      FACTUAL AND PROCEDURAL BACKGROUND

      The complainant, Ellen Beason, was last seen alive on July 29, 1984. On
that day, the complainant was at the Texas Moon nightclub in League City, Texas.
There, she met her close friend Candy Gifford and Gifford’s husband. Sometime
during the evening, appellant arrived at the Texas Moon. At the time, Gifford was
having an affair with appellant. Gifford and her husband argued and left the Texas
Moon. Gifford testified that when she left, appellant and the complainant were still
at the nightclub. The following morning, Gifford drove by the Texas Moon and
observed the complainant’s car in the parking lot.         Gifford never saw the
complainant again. Gifford testified that sometime in November 1984 appellant
took her to a location and showed her the remains of the complainant. Gifford
continued to have a relationship with appellant and did not tell anyone about the
remains because she was afraid of him.

      On July 7, 1985, Gifford went to the Dickinson police and told them where
the complaint’s remains could be found. The police found the complainant’s body
under debris, adjacent to the causeway in Galveston, Texas. The complainant’s
cause of death was ruled undetermined. In February 1986, appellant was convicted
of the misdemeanor offense of abuse of corpse.

      The complainant’s body was exhumed in 1993 and again in 2012.
Examinations during those exhumations revealed that the complainant had a skull
fracture. The complainant’s death was ruled a homicide.

      Appellant was indicted for the offense of murder. At his murder trial, the


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State introduced a transcript of his testimony from the abuse-of-corpse trial. At the
abuse-of-corpse trial, appellant testified that on July 29, 1984, he and the
complainant left the Texas Moon and went to a sand pit in Dickinson, where the
complainant went swimming and drowned. Appellant stated that he was afraid, so
he drove around with the complainant’s body, eventually leaving it where it was
found.

      Over appellant’s objection, the trial court permitted the State to elicit
testimony from Gifford that: (1) appellant threatened to kill her and her family if
she told anyone about his showing her the complainant’s remains; and (2) on July
7, 1985, appellant violently destroyed her apartment and threw things at her. The
jury convicted appellant of the lesser included offense of involuntary
manslaughter.

      The murder indictment that appellant was tried on contained two
enhancement paragraphs alleging a 1987 theft conviction and a 1988 conviction for
possession of a controlled substance. After the guilt/innocence phase of the trial,
but prior to the punishment phase, the State served notice on appellant’s trial
counsel by email that it was abandoning the enhancement paragraphs in the
indictment and substituting a single enhancement paragraph alleging a 1977
attempted arson conviction. Appellant objected to having one business day’s
notice of the enhancement paragraph substitution. The trial court overruled his
objection. The jury found the substituted enhancement paragraph true, assessed
punishment at 20 years’ confinement, and assessed a fine in the amount of
$10,000. Appellant timely appealed.

                               II.      ANALYSIS

      Appellant raises two issues on appeal. Appellant complains that: (1) his due


                                         3
process rights were violated by insufficient notice of the enhancement paragraph
and (2) the trial court abused its discretion in allowing the State to introduce
extraneous acts during the guilt/innocence phase of the trial.

A. Admission of extraneous acts

       Because appellant’s second issue would result in greater relief, i.e., remand
for a new trial and not just for a new punishment hearing, we address it first.
Appellant contends that the trial court abused its discretion in allowing the State to
introduce extraneous acts. We disagree.

       The admissibility of evidence is within the discretion of the trial court.
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We uphold the trial
court’s evidentiary ruling as long as it was within the zone of reasonable
disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g)). We cannot simply substitute our own decision for the
trial court’s and should reverse only for a clear abuse of discretion. See id.

       Extraneous-offense evidence that does not have relevance apart from
character conformity is inadmissible.         Tex. R. Evid. 404(b).1 However, such
evidence is admissible when the extraneous act is: (1) relevant to a fact of

       1
           Rule 404(b) provides:
       (b) Crimes, Wrongs, or Other Acts.
              (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
       admissible to prove a person's character in order to show that on a particular
       occasion the person acted in accordance with the character.
              (2) Permitted Uses; Notice in Criminal Case. This evidence may be
       admissible for another purpose, such as proving motive, opportunity, intent,
       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
       On timely request by a defendant in a criminal case, the prosecutor must provide
       reasonable notice before trial that the prosecution intends to introduce such
       evidence—other than that arising in the same transaction—in its case-in-chief.
Tex. R. Evid. 404(b).

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consequence in the case aside from its tendency to show action in conformity with
character and (2) its probative value is not substantially outweighed by the danger
of unfair prejudice. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006);
see Tex. Rs. Evid. 401, 402, 403, 404(b).          We defer to the trial court’s
determinations whether extraneous evidence has relevance apart from character
conformity and whether the probative value is substantially outweighed by the
danger of unfair prejudice. See Moses, 105 S.W.3d at 627.

      Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence and (b) the fact is of consequence
in determining the action. Tex. R. Evid. 401. Even if the extraneous evidence is
relevant, the trial court may properly exclude it under rule 403 if its probative
value is substantially outweighed by the danger of unfair prejudice, misleading the
jury, undue delay, or needlessly presenting cumulative evidence. See id. 403.
“When Rule 403 provides that evidence ‘may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,’ it simply means that
trial courts should favor admission in close cases, in keeping with the presumption
of admissibility of relevant evidence.” Montgomery, 810 S.W.2d at 389.

      When conducting a rule 403 analysis, courts 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 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.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (citing,

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amongst others, Montgomery, 810 S.W.2d at 389–90).

         1. Appellant’s threat to Gifford

                   a. Rule 404(b)

      Appellant argues that his threatening Gifford was not relevant because
whether he committed this extraneous act did not make whether he murdered the
complainant more or less probable. We disagree.

      “A defendant’s conduct after the commission of a crime which indicates a
‘consciousness of guilt’ is admissible to prove that he committed the offense.”
Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d). Texas courts recognize “consciousness of guilt” as an exception to rule
404(b)’s general prohibition against evidence of extraneous offenses. Torres v.
State, 794 S.W.2d 596, 598–99 (Tex. App.—Austin 1990, no pet.); see Peoples v.
State, 874 S.W.2d 804, 809 (Tex. App.—Fort Worth 1994, pet. ref’d). Acts that
are designed to reduce the likelihood of prosecution, conviction, or incarceration
for the offense on trial are admissible under rule 404(b) as showing “consciousness
of guilt.” See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994), cert.
denied, 519 U.S. 1030 (1996). Therefore, threats made in an effort to suppress or
destroy evidence are probative of consciousness of guilt. See Rodriguez v. State,
577 S.W.2d 491, 492–93 (Tex. Crim. App. 1979); Peoples, 874 S.W.2d at 809;
Torres, 794 S.W.2d at 598–99.

       In Torres, the Austin court of appeals concluded the appellant’s phone calls
to his wife—in which he threatened that, unless she dropped all charges against
him, he would take away his family’s military benefits and she also would go to
jail—were relevant evidence of appellant’s consciousness of guilt in the sexual
assault of his stepdaughter and admissible under rule 404(b). 794 S.W.2d at 598–


                                         6
99. Likewise, in Keith v. State, the Eastland court of appeals concluded that the
appellant’s threat to his burglary accomplice that he would have anyone who
“snitched him out or got him in trouble . . . bumped off” was relevant and
admissible under rule 404(b). 384 S.W.3d 452, 460 (Tex. App.—Eastland 2012,
pet. ref’d); cf. Peoples, 874 S.W.2d at 808–09 (evidence that appellant attempted to
“intimidate or silence” key State witness relevant under rule 404(b) as
consciousness of guilt).2

       Similarly, here, appellant’s threat to Gifford that her family also “could be
put” where the complainant’s remains were if Gifford said anything about his
showing her the remains was probative to show appellant’s consciousness of guilt.
Therefore, Rule 404(b) did not prohibit evidence of appellant’s efforts to deter
Gifford from reporting his involvement in the charged crime with threats of
violence. We conclude the trial court did not abuse its discretion in determining
that evidence of appellant’s threat had relevance apart from the tendency to show
conduct in conformity with character.

                     b. Rule 403

       We next consider whether the trial court abused its discretion by determining
that the probative value of this evidence was not substantially overweighed by
unfair prejudice. We conclude that it did not.

       Appellant provides no discussion of the rule 403 balancing test in connection

       2
         See also Maddux v. State, No. 14-97-00367-CR, 1999 WL 93224, at *4–5 (Tex. App.—
Houston [14th Dist.] Feb. 25, 1999, pet. ref’d) (not designated for publication) (evidence that
appellant told witness to leave town so she would not be subpoenaed to testify against him
admissible to show consciousness of guilt under rule 404(b)); Reyes v. State, No. 14-96-01189-
CR, 1998 WL 733681, at *3 (Tex. App.—Houston [14th Dist.] Oct. 22, 1998, pet. ref’d) (not
designated for publication) (“We find the threatening letters demanding that the complainant
drop the charges are precisely the type of evidence that is admissible under the exceptions to
Rule 404(b).”).

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with evidence of his threat. Our analysis indicates these factors overall weigh
more strongly in favor of admission. A consciousness of guilt is perhaps one of
the strongest kinds of evidence of guilt. See Torres, 794 S.W.2d at 598. Threats or
other attempts at coercion are “hardly the actions of an innocent accused,” and
evidence of appellant’s threat is as probative of guilt as would be his flight. See
Rodriguez, 577 S.W.2d at 493. In addition, the State’s need for the evidence was
significant given that no one except appellant was present when the complainant
died, he claimed it was a drowning accident, and there were multiple exhumations
and forensic examinations of the complainant’s remains over time. Therefore,
evidence of his consciousness of guilt tended to show that appellant was not
blameless in the complainant’s death. Evidence of the threat was unlikely to
confuse or influence the jury in an improper way; to the contrary, it is rational to
conclude that appellant threatened Gifford because he was guilty of the offense.
The time required to develop the evidence was brief—one page of the record—and
it was not cumulative of other evidence.

      On our review of the record, we conclude that the trial court did not abuse its
discretion by determining that the probative value of evidence of appellant’s threat
was not substantially outweighed by the danger of unfair prejudice.

         2.   Appellant’s destruction of Gifford’s apartment

                a. Rule 404(b)

      Next, appellant argues that his destruction of Gifford’s apartment was not
relevant and therefore not admissible under rule 404(b).          We conclude that
appellant opened the door to this evidence.

      During his defensive opening statement, appellant stated:

            I expect that the evidence is going to show that on at least two
      occasions Candy Gifford proffered the ideas of cutting off the head,
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      cutting off hands, putting them in a bag, putting rocks in that bag, and
      throw it in the bay so that nobody could identify Ellen Beason.
            Candy Gifford was still in love with Clyde Hedrick during this
      time. Clyde moved on. I expect that the evidence to show he and
      Candy were discovered by Candy’s husband, and Clyde moved on
      and started dating a lady by the name of Deborah Keebler. And while
      he was dating Deborah Keebler, Candy, her relationship with her
      husband over, the divorce done, comes to Clyde. “I want you back.
      That relationship is over. I want to be with you.” Clyde had moved
      on.
             All of a sudden Candy Gifford walks into the police department
      and says, “Hey, I have information about a body.” The State is going
      to try to characterize that is all of a sudden she just felt such remorse
      that she just needed to do the right thing. You are going to hear from
      people that Candy spoke with. Candy was pissed.
            So Ellen’s body is discovered. . . .

The State argued to the trial court that appellant misled the jury about why Gifford
went to the police and explained she instead went because appellant destroyed her
apartment. Appellant objected to this evidence; the court agreed to wait to rule.
The State reapproached during Gifford’s direct examination; appellant argued
Gifford could be brought back as a rebuttal witness once he had presented evidence
that she was a spurned lover. The trial court allowed the evidence during Gifford’s
direct examination because appellant had “brought it up in opening.”

      Otherwise inadmissible evidence may become admissible when a party
opens the door to such evidence, i.e., by leaving a false impression with the jury
that invites the other side to respond. Williams v. State, 301 S.W.3d 675, 687 (Tex.
Crim. App. 2009), cert. denied, 560 U.S. 966 (2010); Hayden v. State, 296 S.W.3d
549, 554 (Tex. Crim. App. 2009). Rebuttal of a defensive theory is an exception
under rule 404(b). Williams, 301 S.W.3d at 687 (citing Moses, 105 S.W.3d at
626). A defensive opening statement—although not evidence—opens the door to

                                          9
the admission of extraneous-offense evidence to rebut a defensive theory presented
in the defensive opening statement. Bass v. State, 270 S.W.3d 557, 562–63 & n.7
(Tex. Crim. App. 2008) (evidence of pastor’s other sexual assaults of girls in
church office allowed under rule 404(b) where pastor in opening claimed that her
allegations were “pure fantasy” and “pure fabrication” and that he was “the real
deal and the genuine article”); see De La Paz v. State, 279 S.W.3d 336, 344–48
(Tex. Crim. App. 2009) (evidence of other “buy-bust” drug deals allowed under
rule 404(b) where appellant’s defensive theory was State witnesses were lying
about the instant drug deal to please prosecution); Bargas v. State, 252 S.W.3d
876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“[E]xtraneous-offense
evidence, under Rule 404(b), is admissible to rebut a defensive theory raised in an
opening statement or raised by the State’s witnesses during cross-examination[.]”).
When the defense chooses to make its opening statement immediately after the
State’s, the State reasonably may rely on the defensive opening statement as to
what evidence the defense intends to present and rebut this anticipated defensive
evidence during its case-in-chief, as opposed to waiting until rebuttal. Bass, 270
S.W.3d at 563 n.7.

      During opening, appellant laid the groundwork that it would provide
evidence Gifford only decided to go to the police because she was upset he had
moved on to another woman. Moreover, appellant later pursued this theory during
his cross-examination of Gifford, soliciting testimony from Gifford regarding the
timing and circumstances of her going to the police—how she did not report the
remains for several months, “until July, a few weeks after breaking up with
Clyde.” See id. (any error in admitting evidence during direct examination may be
cured where defense later opens the door). It is at least subject to reasonable
disagreement whether the evidence of appellant’s ransacking Gifford’s apartment


                                        10
just before she went to the police was admissible for the noncharacter-conformity
purpose of rebutting appellant’s defensive theory that Gifford only came forward
because she was “spurned” and “pissed,” and was somehow involved in the cover-
up. See id. at 563. We conclude that the trial court did not abuse its discretion in
deciding that the evidence of appellant’s destruction of Gifford’s apartment was
admissible to rebut this particular defensive theory.

                 b. Rule 403

       We next consider appellant’s argument that, even if admissible to rebut his
defensive theory, evidence of appellant’s “throwing everything at [Gifford] and
committing an act of violence” was unfairly prejudicial under rule 403. We reject
this argument.

      Appellant argues that the evidence here was not offered to support any
“hotly contested” fact. During his opening statement, however, appellant himself
placed in issue the reasoning behind Gifford’s going to the police by stating that
there was evidence Gifford was a spurned lover angry at appellant. Appellant
contends there was no need for this evidence because both sides agreed that
appellant showed Gifford the remains. However, the State indicated it only needed
to present such evidence after appellant left a false impression with the jury that
Gifford decided to go to the police because he would not take her back. While the
jury likely could not help but be impressed by evidence of “an act of violence”
against Gifford, Gifford’s testimony was presented in the limited context of
providing an explanation for her going to the police on July 7, 1985. Gifford was
one of ten State witnesses, the evidence amounted to approximately four pages,
and the evidence was not repetitive. In contrast, the parties presented over 230
pages of forensic testimony related to determining what actually happened to the
complainant. It is not likely that evidence of appellant’s ransacking Gifford’s

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apartment confused or distracted the jury from determining that main issue.

      Rule 403 should be used sparingly and envisions exclusion only where there
is a clear disparity between the degree of prejudice of the offered evidence and its
probative value. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
We cannot say that this is one of those times. Therefore, we conclude that the trial
court did not abuse its discretion by determining the probative value of the
evidence of appellant’s destruction of Gifford’s apartment was not substantially
outweighed by the danger of unfair prejudice.

      We overrule appellant’s second issue.

B. Notice of punishment enhancement

      In his first issue, appellant claims that his due process rights were violated
where the State only provided him with notice of the substituted enhancement
paragraph on the Friday before Monday’s punishment hearing. We disagree.

      When the State seeks to enhance a defendant’s punishment with evidence of
a prior conviction, “[t]he accused is entitled to a description of the judgment of
former conviction that will enable him to find the record and make preparation for
a trial on the question of whether he is the named convict therein.” Villescas v.
State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). “[P]rior convictions used as
enhancements must be pled in some form, but they need not be pled in the
indictment.” Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).

      When conducting a due process analysis, the determination of whether
proper notice of enhancements was given does not require that notice be given
within a particular period of time before trial or before the guilt/innocence phase is
completed. Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (citing
Villescas, 189 S.W.3d at 294).        In determining whether appellant received

                                         12
sufficient notice of the State’s intent to enhance punishment, we look to the record
to identify whether appellant’s defense was impaired by the timing of the State's
notice. Id. When a defendant has no defense to an enhancement, and has not
suggested the need for a continuance in order to prepare such a defense, notice
given at the beginning of the punishment phase satisfies due process. Villescas,
189 S.W.3d at 294.

       In Garza v. State, we held that the State’s notice of intention to use prior
convictions and extraneous offenses, which notice identified the particular burglary
enhancement ultimately used for enhancement by cause number, county of the
convicting court, district court number, and conviction date, “provided appellant
with adequate notice that his sentence could be enhanced by the burglary
conviction.” 383 S.W.3d 673, 676 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). This Court also noted that the appellant in Garza received further notice at
the beginning of the punishment hearing when the State read the enhancement
allegation aloud. Id. The appellant in Garza did not request a continuance to
investigate or prepare a possible defense, and did not argue on appeal any possible
basis for challenging the State’s evidence of the prior conviction. Id. at 676–77.
We concluded that there was no due process violation. Id. at 677.

       Garza squarely controls. In the instant cause, the State provided appellant
with two separate documents providing notice3 pursuant to rules 404(b) and 609,
and articles 37.07 and 38.57 of the Texas Code of Criminal Procedure, of its intent
to introduce evidence of appellant’s other crimes, wrongs, and acts, which included
the 1977 conviction for attempted arson. The notice documents identified the
attempted arson conviction by cause number, county of the convicting court, and

       3
        The second notice was a supplemental notice of intent to use evidence of other crimes,
wrongs, or acts.

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conviction date. Appellant received additional notice of the State’s intention to
substitute the 1977 attempted arson conviction for the 1987 theft conviction and
the 1988 possession conviction on the business day prior to the punishment phase.
Appellant did not request a continuance to discover and prepare a defense, and in
his brief does not argue any particular basis for challenging the State’s evidence of
the attempted arson conviction.4         Under these circumstances, we find no due
process violation. See id.

       We overrule appellant’s first issue.

                               III.       CONCLUSION

       Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.



                                           /s/    Marc W. Brown
                                                  Justice



Panel consists of Justices Christopher, Brown, and Wise.
Publish — TEX. R. APP. P. 47.2(b).




       4
          The State’s evidence included the judgment in the 1977 attempted arson cause, which
contained his photograph and fingerprints, as well as appellant’s testimony from his abuse-of-
corpse trial acknowledging that he committed the 1977 attempted arson.

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