                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-418-CR


TONY LANE GREGORY                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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                                 I. Introduction

      A jury found Appellant Tony Lane Gregory guilty of capital murder and the

trial court assessed punishment at life imprisonment. Appellant contends in

four points that the trial court should have submitted a jury instruction on the

lesser included offense of murder, that the trial court erred by overruling his

motion to suppress DNA evidence, and that the trial court abused its discretion



      1
          … See Tex. R. App. P. 47.4.
by admitting evidence of an extraneous suspicious act and permitting a witness

to testify about her state of mind. We affirm.

                   II. Factual and Procedural Background 2

      Amy Blow lived at the Cornerstone Apartments in Arlington, Texas. Amy

walked to a convenience store near her apartment between noon and 2 p.m.

on July 4, 2000 – it was the last time any of her friends saw her alive.

      Susan Shockley lived near Amy in the Cornerstone Apartments.

Appellant also lived nearby in the same complex. At about 9:30 or 10:00 p.m.

on July 4, 2000, Appellant removed the screen to a window on Susan’s

enclosed patio, squatted in the dark wearing only boxer-shorts, and told Susan

he wanted to get inside her apartment and needed a place to hide. Appellant

acted very aggressively and refused to leave until Susan threatened to call the

police.

      Connie Jenkins and Amy were close friends; they talked almost every

day. When Connie was unable to contact Amy for several days after July 3,

2000, she went to Amy’s apartment to check on her. On July 8, 2000, Connie

found Amy’s lifeless body on the living room couch in Amy’s apartment. Amy

was fully-dressed, covered by a quilt, and positioned on the couch as if she



      2
       … Because Appellant does not contest the sufficiency of the evidence
to support his conviction, we set out only so much of the evidence as required
to address Appellant’s points.

                                      2
were sleeping. Amy had been strangled and severely beaten. She had two

large lacerations on her vaginal wall that had caused significant bleeding. There

was blood on Amy’s bed, on the floor from the bedroom to the living room

couch where Amy’s body had been placed, and on the vaginal area of Amy’s

jeans. The medical examiner opined that the injuries to Amy’s vagina occurred

at or near the time of her death and that Amy died of manual strangulation

more than twenty-four hours before Connie discovered her body.

      The case went “cold” for several years. In December 2005, investigators

obtained and executed a search warrant to obtain DNA samples from Appellant.

Investigators discovered that DNA under Amy’s fingernail was consistent with

Appellant’s and that Appellant’s fingerprints were on a Coors Lite beer can that

had been concealed in a laundry basket beneath bloody towels in Amy’s

apartment.

      Appellant became very worried after investigators took the DNA samples

from him, and he confessed to two fellow inmates 3 that he had severely beaten

Amy. He asked one inmate to provide an alibi for him and told him Amy’s body

was found with a shopping bag over her face, a detail investigators had not

released to the media. Appellant told the other inmate that he did not believe

investigators could ever prove he had sexual intercourse with Amy.

      3
      … Appellant was incarcerated in December 2005 for an unrelated
offense.

                                       3
      In June 2006, a grand jury indicted Appellant for capital murder. The

indictment alleged Appellant intentionally caused Amy’s death by strangling her

in the course of committing or attempting to commit aggravated sexual assault.

See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003). Appellant pleaded not

guilty, and was tried in November 2007. The jury returned a verdict of guilty,

and the trial court sentenced Appellant to life in prison.

           III. Jury Instruction Concerning Lesser Included Offense

      In his first point, Appellant argues the trial court erred by failing to give

the jury an instruction on the lesser included offense of murder. Appellant

contends the jury could have interpreted the medical examiner’s testimony to

mean “Appellant committed the murder and then, after [Amy] was deceased,

inserted an object into her corpse’s vagina.”

A. Standard of Review

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,

672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. Tex.

Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998). “An offense is a lesser included offense if . . . it



                                        4
is established by proof of the same or less than all the facts required to

establish the commission of the offense charged.” Tex. Code Crim. Proc. Ann.

art. 37.09(1); see also Hall, 225 S.W.3d at 536.

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant is guilty, he is guilty only of the lesser

offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741

(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at

8. The court may not consider whether the evidence is credible, controverted,

or in conflict with other evidence.      Id.   Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a lesser charge. Hall, 225

S.W.3d at 536.

B. Analysis

      It is well-settled that murder is a lesser included offense of capital murder.

Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009).                    Thus,

Appellant has satisfied the first step of the lesser included offense analysis. We

must therefore determine whether there is some evidence in the record that

would permit a jury to rationally find that if Appellant is guilty, he is guilty only

of murder. See Hall, 225 S.W.3d at 536.




                                         5
      To support his contention that the jury could have interpreted Dr. Sisler’s

testimony to mean Appellant murdered Amy and then inserted an object into

her vagina after she was deceased, Appellant points to the following testimony

from Tarrant County Deputy Medical Examiner Dr. Gary Sisler:

      Q. Based on what you saw at the autopsy and especially turning
      your attention to what you discovered in the vaginal area or the
      internal vaginal area of Amy Blow, were the lacerations that were
      caused in her – caused in her vaginal wall, do you have an opinion
      as to whether or not those are fairly contemporaneous with her
      death?

      A. How are you using the term “contemporaneous”? Would you
      say at or near the time of death, sir?

      Q. At or near, sure.

      A. Yeah, I would probably say perimortal [sic], and we use that
      term as at or near the time of death.

      The Texas Court of Criminal Appeals addressed a similar factual scenario

in Irvan v. State, No. AP-74853, 2006 WL 1545484 (Tex. Crim. App.) (not

designated for publication), cert. denied, 549 U.S. 1079 (2006). Irvan was

indicted for murdering the victim in the course of aggravated sexual assault and

argued the evidence supported an instruction on the lesser included offense of

murder because the medical examiner could not definitively state whether the

sexual assault occurred before or after the murder.         Id. at *1, *10–11.

Specifically, the medical examiner testified at Irvan’s trial that he could not say

whether the sexual assault occurred before the murder, at the time of the


                                        6
murder, or after the murder. Id. at *11. Rejecting Irvan’s argument, the court

stated: “The jury could not rationally acquit Irvan of capital murder and convict

him only of murder merely because the medical examiner could not pinpoint the

exact timing of the sexual assault.”        Id.   The court then discussed other

evidence showing the murder occurred during the course of the sexual assault

and held Irvan “failed to satisfy the second requirement of the test.” Id.

      Appellant has similarly failed to satisfy the second step of the lesser

included offense analysis.    First, Dr. Sisler’s testimony that Amy’s vaginal

lacerations were caused at or near the time of death is not evidence that her

rape and murder were actually disconnected in time. See Segundo v. State,

270 S.W.3d 79, 91 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 53 (2009)

(holding medical examiner’s testimony that sperm could remain in a woman’s

vaginal vault for up to seventy-two hours was no evidence that the victim’s

rape and murder were, in fact, disconnected); see also Irvan, 2006 WL

1545484, at *11 (rejecting lesser included murder instruction based solely on

medical examiner’s inability to determine exact timing of sexual assault).

Appellant points to no evidence supporting his suggestion that Amy’s vaginal

injuries occurred after she died. “[I]t is not enough that the jury may disbelieve

crucial evidence pertaining to the greater offense, but rather, there must be

some evidence directly germane to the lesser-included offense for the finder of



                                        7
fact to consider before an instruction on a lesser-included offense is

warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)

(citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert.

denied, 523 U.S. 1079 (1998)). Dr. Sisler’s testimony did not, without more,

entitle Appellant to a jury instruction on the lesser included offense of murder,

and we find no evidence in the record supporting Appellant’s contention that

he is guilty only of murder.

      Moreover, there is ample evidence that Appellant murdered Amy in the

course of sexually assaulting her. Amy suffered two lacerations on her vaginal

wall, and there was concentrated blood on Amy’s bed, drops of blood leading

from the bedroom to the living room couch, vomit on the floor behind the

couch, vomit on the bottom of Amy’s feet, and a pool of blood on the vaginal

area of Amy’s jeans. Amy’s body was found on the couch, positioned as if she

were sleeping.   This evidence showed that Amy was most likely sexually

assaulted in the bedroom, walked or forced to walk from the bedroom to the

living room (because of the blood on the floor and the vomit on the bottom of

her feet), and then placed in a sleeping position on the couch. Appellant has

failed to show there is some evidence in the record that would permit a jury to

rationally find Appellant guilty only of the lesser included offense of murder.

See Segundo, 270 S.W.3d at 91; Irvan, 2006 WL 1545484, at *11.

      We overrule Appellant’s first point.

                                       8
                    IV. Motion to Suppress DNA Samples

      Appellant next contends the trial court erred by denying his motion to

suppress DNA samples seized from him pursuant to a 2003 search warrant.

Specifically, Appellant contends that the December 2005 search warrant

affidavit in this case 4 was based on a May 2003 search warrant from an

unrelated case 5 and that the 2003 search warrant was not based on probable

cause. According to Appellant, because the 2005 search warrant affidavit was

based on the invalid 2003 search warrant, the buccal swabs taken from

Appellant in December 2005 are fruit of the illegal 2003 search and seizure.

The State counters that the 2005 search warrant affidavit, standing alone,

establishes probable cause.

A. Applicable Law

      A search warrant shall not issue in Texas unless sufficient facts are

presented through a sworn affidavit to satisfy the issuing magistrate that

probable cause exists for its issuance.   Tex. Code    Crim. Proc. Ann. art.

18.01(b) (Vernon Supp. 2009); Jones v. State, 833 S.W.2d 118, 123–24

(Tex. Crim. App. 1992). The facts must illustrate (1) that a specific offense


      4
       … Search Warrant # 14536 was issued December 20, 2005, and
authorized seizure of buccal swabs from Appellant for use in the present case.
      5
       … Search Warrant # 11075 was issued May 13, 2003, and authorized
seizure of buccal swabs from Appellant for use in an unrelated sexual assault
case.

                                      9
has been committed, (2) that the specifically described property or items that

are to be searched for or seized constitute evidence of that offense or evidence

that a particular person committed that offense, and (3) that the property or

items constituting evidence to be searched for or seized are located at or on the

particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann.

art. 18.01(c). Whether the facts mentioned in an affidavit are adequate to

establish probable cause depends on the “totality of circumstances.” Ramos

v. State, 934 S.W.2d 358, 362–63 (Tex. Crim. App. 1996), cert. denied, 520

U.S. 1198 (1997).

      In assessing the sufficiency of an affidavit for an arrest or a search

warrant, we are limited to the four corners of the affidavit. Hankins v. State,

132 S.W.3d 380, 388 (Tex. Crim. App.), cert. denied, 543 U.S. 944 (2004);

Jones, 833 S.W.2d at 123. We must interpret the affidavit in a common sense

and realistic manner, recognizing that the magistrate was permitted to draw

reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App.

2006); Hankins, 132 S.W.3d at 388. If the magistrate had a substantial basis

for concluding that a search would uncover evidence of wrongdoing, the Fourth

Amendment requires no more, and the affidavit should be deemed sufficient.

Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983).

B. Analysis



                                       10
      Appellant contends the DNA samples taken from him in 2005 should have

been suppressed because the 2005 search warrant affidavit was based on a

2003 search warrant that lacked probable cause.        However, we need not

decide whether the 2003 search warrant was based on probable cause because

excluding all references to the 2003 search warrant or evidence obtained

pursuant to the 2003 search warrant, the 2005 search warrant affidavit sets

forth sufficient facts to establish probable cause.    See Pool v. State, 157

S.W.3d 36, 44 (Tex. App.—Waco 2004, no pet.) (holding some of the evidence

in the search warrant affidavit was illegally obtained but that the court “must

put aside the illegally obtained evidence from the affidavit and evaluate the

affidavit for probable cause using the remaining lawfully-acquired evidence”).

      Independent of any references to or evidence obtained pursuant to the

2003 search warrant, 6 the affidavit supporting the 2005 search warrant

established: (1) Connie Jenkins and Samuel Cooper found Amy’s body inside

Amy’s apartment on July 8, 2000; (2) the autopsy revealed Amy had been

beaten, raped, and died from “manual strangulation;” (3) Amy had been

      6
       … We exclude the following facts from our analysis of the 2005 search
warrant affidavit: the DNA under Amy’s fingernail matched Appellant’s DNA;
Appellant’s DNA was taken pursuant to a search warrant in 2003 in sexual
assault case #01300576; Appellant threatened the victim in case #01300576
with a handgun, beat her with the butt of the handgun, causing multiple
contusions and lacerations, and sexually assaulted her anally with his penis and
the barrel of the gun; and Appellant was convicted and sentenced to forty
years’ confinement in case #01300576.

                                      11
deceased for several days; (4) foreign male DNA was obtained from Amy’s

fingernail clippings, and the presence of foreign DNA was consistent with her

severe beating and sexual assault; (5) the foreign male DNA matched

Appellant’s DNA from aggravated sexual assault case #01121548 (not the

2003 search warrant case) where Appellant threatened the victim with a knife

and sexually assaulted her anally with his penis; (6) Appellant’s previous arrests

included kidnapping, burglary, and larceny, among others; (7) Appellant and

Amy lived in the same apartment complex; (8) Appellant was not incarcerated

at the time of Amy’s murder; (9) Appellant’s ex-girlfriend, who lived with him

at the time of Amy’s murder, said that Appellant had been drinking alcohol

heavily, using prescription pain relievers, and running up large phone-sex bills

near the time of Amy’s murder and that Appellant would often disappear for

several hours in the middle of the night without explanation; (10) Susan

Shockley, who also lived in the same apartment complex, said that Appellant

left a note on her door a month before Amy’s murder indicating he had a

romantic interest in Susan, that Appellant started knocking on Susan’s door

every day, and that she felt Appellant was stalking her; (11) Appellant climbed

onto Susan’s apartment patio the night of July 4, 2000, knocked on her

bedroom window, crouched down on the patio to hide behind the fence,

appeared very nervous and paranoid, said he needed a place to hide, and



                                       12
refused to leave until she threatened to call the police; (12) Appellant had

buccal samples on his person; and (13) Appellant was incarcerated at the time

of the affidavit at the Allred prison unit in Wichita County, Texas.

      Considering the totality of the circumstances, and excluding any

references to or evidence obtained pursuant to the 2003 search warrant, we

hold that the magistrate had a substantial basis for concluding that probable

cause existed to support the issuance of the December 2005 search warrant

for collection of buccal swabs. See Gates, 462 U.S. at 238, 103 S. Ct. at

2332. The facts in the 2005 search warrant affidavit illustrate that Amy was

sexually assaulted and murdered, that Appellant’s DNA constituted evidence

that Appellant did or did not sexually assault and murder Amy, and that

Appellant’s DNA could be found on Appellant’s person at a particular place.

See Tex. Code Crim. Proc. Ann. art. 18.01(c); see also Vafaiyan v. State, 279

S.W.3d 374, 384 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that when

considered together with the other evidence described within the four corners

of the affidavits, the totality of the circumstances provided the magistrate with

a substantial basis for concluding probable cause existed to search); Goodrum

v. State, No. 01-01-00950-CR, 2003 WL 1995634, at *5 (Tex. App.—Houston

[1st Dist.] May 1, 2003, pet. ref’d) (mem. op., not designated for publication)

(concluding that, under the totality of the circumstances, the magistrate had



                                       13
sufficient evidence linking appellant to the crime to issue a search warrant

allowing police to draw his blood to further their investigation). Accordingly,

we hold that the trial court did not abuse its discretion by denying Appellant’s

motion to suppress.    See Cantu v. State, No. 05-07-01625-CR, 2009 WL

1479412, at *2 (Tex. App.—Dallas May 28, 2009, no pet.) (not designated for

publication) (holding trial court did not err by denying appellant’s motion to

suppress after appellate court reviewed the affidavit as a whole and concluded

that affidavit authorized magistrate’s issuance of search warrant for collection

of buccal swabs).

      We overrule Appellant’s second point.

V. Admission of Evidence

      Appellant’s third and fourth points concern the trial court’s admission of

certain testimony by Susan Shockley. Appellant’s third point complains about

Susan’s description of what Appellant deems an extraneous suspicious act, and

Appellant’s fourth point concerns the admission of Susan’s testimony about her

state of mind. After conducting a hearing outside the presence of the jury, the

trial court allowed Susan to testify about Appellant’s suspicious conduct the

night of July 4, 2000. The trial court also permitted Susan to testify that she

was upset and frightened by a note Appellant left on her door approximately

one month before Amy’s death.



                                      14
A. Standard of Review

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard.     Burden v. State, 55 S.W.3d 608, 615 (Tex.

Crim. App. 2001). The test for abuse of discretion is whether the court acted

without reference to any guiding rules or principles, and the mere fact that a

trial court may decide a matter within its discretionary authority differently than

an appellate court does not demonstrate abuse. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990). The appellate court will not reverse

a trial court's ruling on the admission of evidence as long as the ruling is within

the zone of reasonable disagreement. Id. at 391 (op. on reh'g).

B. Appellant’s Suspicious Act on July 4, 2000

      Susan testified that at about 9:30 or 10:00 the night of July 4, 2000,

Appellant removed a windowscreen on her enclosed patio, squatted in the dark

wearing only boxer-shorts, and told her he wanted to get inside her apartment

and needed a place to hide. Susan said that Appellant’s demeanor was “very

aggressive,” that he remained in a squatting position the entire time he was on

her porch, and that he finally left after she threatened to call the police.

Appellant objected to Susan’s testimony as irrelevant and unduly prejudicial.

The trial court overruled Appellant’s objections and found the probative value

of Susan’s testimony outweighed the prejudicial effect.



                                        15
      1. Rule of Evidence 404(b)

      Appellant first argues Susan’s testimony was inadmissible because it

relates to an extraneous act rendered inadmissible by rule of evidence 404(b).

See Tex. R. Evid. 404(b). In response, the State contends the trial court did

not abuse its discretion by admitting Susan’s testimony because her testimony

was relevant to the timing of Amy’s death, Appellant’s identity, and Appellant’s

consciousness of guilt. We agree with the State.

      “Evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” Tex.

R. Evid. 404(b). However, this evidence may be admissible when it is relevant

to a “noncharacter conformity fact of consequence in the case,” such as intent,

motive, identity, opportunity, preparation, plan, knowledge, or absence of

mistake or accident. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.

2001); see Tex. R. Evid. 404(b). Further, evidence of flight is “admissible as

a circumstance from which an inference of guilt may be drawn.” Alba v. State,

905 S.W.2d 581, 586 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1077

(1996). Susan’s testimony tended to prove Appellant was in the vicinity of

Amy’s apartment and was looking for a place to hide near the time of Amy’s

murder. See Sosa v. State, 177 S.W.3d 227, 230 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (recognizing that neither an accused’s presence at, nor



                                      16
flight from, the scene of a crime is sufficient alone to support a guilty verdict,

but that both are circumstances from which an inference of guilt may be

drawn).   Her testimony was also probative of Appellant’s identity. 7         See

Rodriguez v. State, No. 05-02-01272-CR, 2003 WL 22966671, at *6 (Tex.

App.—Dallas Dec. 18, 2003, pet. ref’d) (mem. op., not designated for

publication) (op. on reh’g) (holding trial court did not err by admitting evidence

of extraneous aggravated robbery during defendant’s flight from murder

because evidence was relevant to identity). Because Susan’s testimony was

relevant apart from Appellant’s conformity with character, the trial court did not

err in finding the testimony admissible under rule 404(b). See Tex. R. Evid.

404(b); Alba, 905 S.W.2d at 586.

      2. Rule of Evidence 403

      Appellant also objected to Susan’s testimony under rule of evidence 403.

Evidence that is relevant may nevertheless be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, misleading the jury, 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



      7
      … Appellant’s identity was clearly at issue at trial. For example,
Appellant’s counsel extensively cross-examined an investigating detective
concerning the investigator’s efforts to rule out suspects other than Appellant.

                                       17
from evidence that has an undue tendency to suggest that a decision be made

on an improper basis, commonly an emotional one. Id.

      When a defendant makes a rule 403 objection, the trial court has a

nondiscretionary obligation to weigh the probative value of the evidence against

the unfair prejudice of its admission. Id. In overruling such an objection, the

trial court is assumed to have applied a rule 403 balancing test and determined

the evidence was admissible. See Poole v. State, 974 S.W.2d 892, 897 (Tex.

App.—Austin 1998, pet. ref’d); Yates v. State, 941 S.W.2d 357, 367 (Tex.

App.—Waco 1997, pet. ref’d); Caballero v. State, 919 S.W.2d 919, 922 (Tex.

App.—Houston [14th Dist.] 1996, pet. ref’d).           A reviewing court must

recognize that the trial court is in a superior position to gauge the impact of the

relevant evidence and not reverse a trial court’s ruling if it is within the “zone

of reasonable disagreement.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.

Crim. App. 1999); Montgomery, 810 S.W.2d at 391.

      In considering whether the trial court should have excluded Susan’s

testimony under rule 403, we measure the trial court’s balancing-test

determination against the following criteria: (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



                                        18
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. Mozon, 991 S.W.2d at 847. When

the relevant criteria objectively 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 by failing to exclude

it. Curtis v. State, 89 S.W.3d 163, 170 (Tex. App.—Fort Worth 2002, pet.

ref’d) (citing Montgomery, 810 S.W.2d at 392).

      In this case, each of the four factors favors admissibility. First, Susan’s

testimony makes it more likely that Appellant murdered Amy the evening of

July 4, 2000. The medical examiner testified Amy died at least twenty-four

hours before her body was discovered on July 8, 2000, and that she could

have died within a wide range of time before then.         Further, investigators

testified there was a great deal of blood throughout Amy’s apartment.

Appellant’s presence, demeanor, and behavior on Susan’s enclosed patio the

evening of July 4, 2000, wearing only boxer-shorts and looking for a place to



                                        19
hide are compellingly probative of his involvement in Amy’s murder, particularly

because the identity of Amy’s killer was disputed at trial. The evidence helped

explain the possibility that Appellant killed Amy, discarded his bloody clothes,

and looked for a place to hide in Susan’s apartment.

      In addition, Susan’s testimony concerning Appellant’s act of accessing

her enclosed patio is not particularly emotional or otherwise likely to inflame the

jury. And her testimony did not detract from the jury’s consideration of the

indicted offense because the State offered her testimony as part of its proof

that Appellant committed the indicted offense. Finally, Susan was the only

witness to Appellant’s act, and it does not appear the State had ready-access

to other evidence to show Appellant’s behavior and presence near the time of

the murder. The trial court did not abuse its discretion by finding the probative

value of Susan’s testimony was not substantially outweighed by any prejudicial

effect.

      We overrule Appellant’s third point.

C. Susan’s State of Mind Testimony

      Susan also testified she first became aware of Appellant after he left a

note on her door in early June 2000. She said that after reading the note, she

was upset because the note frightened her.         Appellant asserted a general

relevance objection to the question that asked Susan what she “gather[ed] from



                                        20
the note after [she] read it,” and the State argued the testimony concerned

Susan’s state of mind.       The trial court overruled Appellant’s objection.

Assuming without deciding the trial court erred by overruling Appellant’s

objection to Susan’s state of mind testimony, the error, if any, was harmless.

      Appellant concedes that the admission of Susan’s testimony does not

involve constitutional error.   Rule of appellate procedure 44.2(b) therefore

applies. See Tex. R. App. P. 44.2(b). Under rule 44.2(b), we must disregard

the error if it did not affect Appellant’s substantial rights. Id.; 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). A substantial right is affected when

the error had a substantial and injurious effect or influence in determining 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. Conversely, an error does not affect

a substantial right if we have “fair assurance that the error did not influence the

jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).




                                        21
      Under the circumstances, we have fair assurance that the admission of

Susan’s testimony that she was upset because the note frightened her did not

influence the jury or had but a slight effect. In addition to Susan’s state of

mind testimony, the State presented evidence that Appellant watched Amy and

Susan from the bushes at the pool; that Amy did not want to converse with

Appellant at the apartment pool; that Amy was last seen alive the afternoon of

July 4, 2000; that around 9:30 or 10:00 p.m. on July 4, 2000, Appellant

squatted on Susan’s patio in the dark wearing only boxer-shorts and told Susan

he wanted to get inside her apartment and needed a place to hide; that

Appellant’s fingerprints were on a Coors Lite beer can that was concealed

beneath bloody towels in a laundry hamper inside Amy’s apartment; that the

mixture of DNA under Amy’s fingernail was consistent with Amy’s and

Appellant’s; that Appellant became very worried after detectives took a DNA

sample from him; that Appellant asked a fellow inmate to provide an alibi for

him; that Appellant told fellow inmates Amy scratched him on his nose, he

severely beat Amy, he did not believe investigators could ever prove he had

sexual intercourse with Amy, and Amy’s body was found with a shopping bag

over her head, a detail the investigators did not release to the media.

      Susan’s state of mind testimony was insignificant in the context of the

entire case against Appellant. We do not see how its admission in evidence



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substantially or injuriously affected or influenced the jury in reaching its verdict.

We therefore hold that the trial court’s error, if any, in admitting Susan’s

testimony was harmless. See Tex. R. App. P. 44.2(b).

      We overrule Appellant’s fourth point.

                                  VI. Conclusion

      Having overruled each of Appellant’s four points, we affirm the trial

court’s judgment.




                                              ANNE GARDNER
                                              JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 28, 2010




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