Affirmed and Opinion filed August 6, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00102-CR

                   TYLER CHRISTIAN GREEN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1541800

                                     OPINION

      A jury found appellant guilty of murder and assessed punishment at fifty
years’ confinement. In three issues, appellant contends that (1) the trial court erred
by excluding communicated character evidence during the guilt-innocence phase
of the trial, (2) the evidence is insufficient to support his conviction, and (3) the
trial court erred by admitting evidence of appellant’s extraneous offenses during
the punishment phase. We affirm.
                      I.     SUFFICIENCY OF THE EVIDENCE

      We first address appellant’s second issue concerning the sufficiency of the
evidence. See, e.g., Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Appellant contends that the evidence is insufficient
because the jury’s rejection of his claim of self-defense is not supported by the
evidence.

A.    Legal Principles

      In a sufficiency review, we consider all of the evidence in the light most
favorable to the jury’s verdict to determine whether, based on that evidence and
reasonable inferences therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d
756, 765–66 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id. at 766. The jury is the sole judge
of the credibility and weight to be attached to witness testimony, and we must
defer to the jury’s resolution of conflicting inferences that are supported by the
record. See id.

      An actor is justified in using deadly force if, among other things, the actor
reasonably believes deadly force is immediately necessary to protect the actor
against another’s use or attempted use of unlawful deadly force. See Morales v.
State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011) (citing Tex. Penal Code
§ 9.32(a)(2)(A)). A defendant has the initial burden to bring forth evidence in
support of a claim of self-defense. See Dearborn v. State, 420 S.W.3d 366, 372
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Zuliani v. State, 97 S.W.3d
589, 594 (Tex. Crim. App. 2003)). Once this burden is met, the State must
disprove the defense beyond a reasonable doubt. Hernandez v. State, 309 S.W.3d
                                         2
661, 665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing Zuliani, 97
S.W.3d at 594). A jury’s verdict of guilty is an implicit finding rejecting the
defendant’s self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.
App. 1991).

      Accordingly, when an appellant challenges the sufficiency of the evidence to
support the jury’s rejection of self-defense, we must determine whether any
rational trier of fact could have found beyond a reasonable doubt (1) the essential
elements of the alleged offense, and (2) against appellant on the self-defense issue.
See Dearborn, 420 S.W.3d at 372. “Defensive evidence which is merely consistent
with the physical evidence at the scene of the alleged offense will not render the
State’s evidence insufficient since the credibility determination of such evidence is
solely within the jury’s province and the jury is free to accept or reject the
defensive evidence.” Saxton, 804 S.W.2d at 914.

B.    The Evidence

      Appellant testified and admitted to shooting the unarmed decedent during a
drug deal. The decedent had been selling appellant pills to satisfy appellant’s drug
habit. Initially, appellant saw the decedent every day and would also give the
decedent rides about three times per week. Appellant claimed to have witnessed
the decedent becoming angry and aggressive towards people who owed him
money. On one occasion, the decedent showed appellant that the decedent carried a
gun on his ankle.

      According to appellant, their relationship deteriorated after the decedent sold
appellant a car, and the decedent’s car had to be put in “the shop,” leaving the
decedent without a car. The decedent wanted appellant to give the decedent rides
again or pay the decedent more money for the car. Appellant refused. The decedent
said threatening things to appellant over the phone and showed up at appellant’s
                                         3
apartment. At the apartment, the decedent told appellant that “bad things” might
happen to appellant or his family if appellant did not give the decedent his car
back.

        Appellant was not buying pills as often, and he bought some pills from
another dealer on the usual day that appellant would buy from the decedent. The
decedent called appellant and was upset about the car and that appellant had not
bought pills from the decedent. A few days later, when appellant could not buy
pills from any other dealers he knew, he called the decedent to set a meeting to buy
pills. They planned to meet in the parking lot of a strip mall.

        At the time, appellant had been living with his girlfriend. She kept a .38
revolver and about ten bullets in her nightstand. Without telling his girlfriend,
appellant took the gun, loaded it, and brought it with him. He wore a fedora and a
trench coat, although it was a warm February day.

        Appellant arrived at the strip mall before the decedent and went inside a
Jumpalooza—a “kids’ playland” with “bouncy houses.” He asked employees about
pricing and for a flier. Appellant also went into a restaurant and asked an employee
if appellant could use the restroom. He was captured on surveillance videos.
Several witnesses noted appellant’s odd clothing choice for a warm day.

        The decedent called appellant when the decedent arrived, and appellant got
into the decedent’s car. A family leaving the Jumpalooza was getting into their
own car nearby. The father of that family testified that they crossed paths with a
man in a trench coat, and the man was inside the decedent’s car for five to ten
seconds before the father heard the gunshots. The father saw the decedent slump to
the middle of the car, and the man pushed the decedent towards the driver’s side
door. When the man got out of the car, the man fired additional shots at the
decedent before getting in his own car and leaving.
                                           4
      Another witness who was inside a nail salon testified that she saw a man in a
trench coat get into the decedent’s car, but the man stayed in the vehicle for one to
two minutes before the witness heard a loud banging sound. She did not see the
man fire shots into the car from the outside.

      Appellant testified that when he got into the decedent’s car, the decedent
was being aggressive and agitated. The decedent told appellant, “I’m going to mess
you up, I’m going to get my F-ing money.” After one to two minutes, the decedent
said, “I should F-ing kill you. I’m going to F you up.” Appellant testified that the
decedent started to reach down by his feet, and appellant thought the decedent was
going for a weapon to kill appellant. Appellant shot the decedent five times with
the revolver. Appellant testified that he did not “give [the decedent] enough time to
see what he was reaching for.” Appellant denied touching the decedent, firing any
shots while outside the car, or stealing anything from the car.

      A medical examiner testified that several bullets entered the side of the
decedent, but several bullets also entered the decedent’s back at a downward
trajectory. The wounds to the decedent’s back included soot, which indicated to the
medical examiner that the gun was pressed up against the decedent’s body or
within an inch of his body. Police officers did not find a gun at the scene.

      After the shooting, appellant called and texted the decedent multiple times.
He admitted that he tried to “make it look like [he] wasn’t there.” But he did not
think about the existence of cell site location data at the time he made the
communications. After driving away, he threw the shell casings out of his car
window. He threw away his trench coat at a gas station. When he got home, he hid
the clothes he was wearing and returned the gun to the girlfriend’s nightstand.
When his girlfriend discovered that she was missing bullets, he told her that her
son had been going through her drawers, so he hid the bullets elsewhere. He did

                                          5
not turn himself in to the police. Although he claimed to have spoken with an
attorney, he did not tell anyone else what had happened. When he became a
suspect and people started asking him about what happened, he told them he was
not involved. Appellant spoke with his mother often after the shooting, but he
never mentioned self-defense.

C.    Analysis

      Appellant’s defensive evidence is merely consistent with the physical
evidence at the scene of the offense, and thus, cannot render the State’s evidence
insufficient because the credibility determination regarding his evidence is solely
within the jury’s province, and the jury is free to accept or reject the defensive
evidence. See Saxton, 804 S.W.2d at 914. Appellant has not shown how the jury’s
credibility determinations are irrational in this case, so we cannot disturb the jury’s
credibility determinations. See Braughton v. State, 569 S.W.3d 592, 611 (Tex.
Crim. App. 2018).

      The jury heard evidence that the decedent had verbally threatened appellant
on a prior occasion, and yet appellant voluntarily met with the decedent to buy
drugs. The jury heard that appellant brought a loaded gun to this meeting, shot the
unarmed decedent within five to ten seconds of entering the car, shot the decedent
in the side and back at close contact, manipulated the decedent’s body, fired shots
into the car after getting out, disposed evidence of the crime, attempted to fabricate
exculpatory evidence, and lied to his girlfriend and others in an attempt to cover up
his participation. Furthermore, appellant testified that he fired the gun before he
could see what the decedent was reaching for.

      A rational jury could have found beyond a reasonable doubt that appellant
did not reasonably believe deadly force was immediately necessary to protect
appellant against the decedent’s use or attempted use of unlawful deadly force. See
                                          6
Braughton, 569 S.W.3d at 611 (sufficient evidence to reject self-defense despite
defendant’s and his parents’ testimony that the decedent made a verbal threat to
use a gun while reaching into the saddlebags of a motorcycle, and uncontroverted
evidence that the decedent had just assaulted the defendant’s father and knocked
him to the ground); Mendez v. State, 515 S.W.3d 915, 919, 921–22 (Tex. App.—
Houston [1st Dist.] 2017) (sufficient evidence to reject self-defense despite
evidence that the decedent had said he wanted to harm someone, the defendant and
decedent had a verbal altercation, the decedent fired a gun near a nightclub on a
prior occasion, and the decedent had a reputation for violence; noting evidence that
the defendant hit the decedent first and then later threw away his bloody clothes
and the murder weapon and inquired about destroying surveillance tapes), aff’d,
545 S.W.3d 548 (Tex. Crim. App. 2018); see also Granger v. State, 3 S.W.3d 36,
39 (Tex. Crim. App. 1999) (noting that the reasonableness of a defendant’s belief
that deadly force was necessary is ordinarily a question of fact for the jury).

      Appellant’s second issue is overruled.

                          II.    ADMISSION OF EVIDENCE

      In his first issue, appellant contends that the trial court erred by excluding
“communicated character” evidence, i.e., the decedent’s bad acts known by
appellant. In particular, appellant contends that the trial court excluded evidence
that (1) the decedent had committed home burglaries during which he stole
firearms; (2) the decedent had verbally threatened harm to appellant and his loved
ones some time before the shooting; (3) the decedent had been in previous physical
altercations; and (4) the decedent had numerous tattoos that suggested affiliation
with or membership in a violent criminal street gang.




                                           7
A.    Legal Principles

      We review a trial court’s decision to exclude evidence for an abuse of
discretion. See Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016).
Under this standard, we may not reverse a judgment unless we believe that the trial
court’s ruling was so clearly wrong as to lie outside the zone within which
reasonable people might disagree. Id.

      Although relevant, character evidence is generally inadmissible. Sims v.
State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008). Evidence of a person’s
character is not admissible to prove that a person acted in accordance with the
character, and evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that the person acted in accordance with the
character. Tex. R. Evid. 404(a)(1), (b)(1). Even when character evidence is
admissible, usually this evidence may be proven only through opinion or
reputation evidence and not through specific instances of conduct. See Tex. R.
Evid. 405; Sims, 273 S.W.3d at 294.

      However, in a case such as this one in which the defendant adduces evidence
of self-defense, the defendant may offer evidence of the victim’s reputation,
opinion testimony, and evidence of specific prior acts of violence by the victim to
show the reasonableness of the defendant’s claim of apprehension of danger from
the victim. Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009). “This is
called ‘communicated character’ because the defendant is aware of the victim’s
violent tendencies and perceives a danger posed by the victim, regardless of
whether the danger is real or not.” Id. (citing Mozon v. State, 991 S.W.2d 841, 846
(Tex. Crim. App. 1999)). For example, when the decedent in a homicide case was
unarmed, the defendant’s claim of self-defense rests on a perceived danger, which
is “frequently based on a furtive gesture that can only be regarded as a threat when

                                         8
it is considered in light of the decedent’s reputation for violence.” Fry v. State, 915
S.W.2d 554, 560 (Tex. App.—Houston [14th Dist.] 1995, no pet.), cited in Ex
parte Miller, 330 S.W.3d at 618 n.16.

      In short, communicated character evidence in the form of the victim’s
specific acts of violence is admissible under Rule 404 to show the defendant’s state
of mind. Mozon, 991 S.W.2d at 846; see Tex. R. Evid. 404(b)(2). But even if
communicated character evidence is admissible under Rule 404, the trial court may
still exclude the evidence under Rule 403. See Mozon, 991 S.W.2d at 846. And
even if the trial court has erred by excluding evidence, generally we may not
reverse a conviction unless the erroneous exclusion of evidence was harmful, i.e.,
affected the party’s substantial rights. See Tex. R. Evid. 103(a); Tex. R. App. P.
44.2(b); Walters v. State, 247 S.W.3d 204, 218–19 (Tex. Crim. App. 2007).

B.    Burglaries

      At trial, appellant’s counsel proffered evidence that the decedent had told
appellant that the decedent had broken into peoples’ houses and taken some guns.
The trial court, agreeing with the State’s argument, ruled that evidence of the
decedent’s burglaries was not admissible because it was “more prejudicial than
probative.”

      Under Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Tex. R. Evid. 403. The rule authorizes a trial court to exclude relevant evidence
only when there is a clear disparity between the degree of prejudice of the evidence
and its probative value. Mozon, 991 S.W.2d 847. A reviewing court, however,
should reverse the trial court’s ruling rarely and only after a clear abuse of
discretion. Id.
                                          9
      The criteria for 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;
      (4) the force of the proponent’s need for this evidence to prove a fact
      of consequence, i.e., 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. (quotations and citations omitted).

      Little time would have been necessary to show that appellant believed that
the decedent participated in burglaries based on the decedent’s alleged admission
of that fact, so the third factor favors admission of the evidence. The remaining
factors, however, favor the trial court’s decision to exclude the evidence. Evidence
of extraneous offenses is inherently prejudicial and tends to confuse the issues. See
Sims, 273 S.W.3d at 295. Evidence that appellant believed the decedent
participated in burglaries and stole guns would not have been compelling evidence
of appellant’s state of mind, and appellant had little need for the evidence. The
nature of the extraneous offenses—burglaries—do not significantly bear on issue
of apprehension of danger in this case involving the falling out between a drug
dealer and his customer over the purchase of a car. Cf. Thompson v. State, 659
S.W.2d 649, 654 (Tex. Crim. App. 1983) (under pre-Rules common law, evidence
of the decedent’s convictions for unlawfully carrying weapons were not probative

                                          10
of the reasonableness of the defendant’s apprehension of danger because she did
not testify that she thought the decedent was armed or might use a weapon against
her).

        For example, appellant did not proffer any evidence that he believed the
burglaries involved acts of violence. And, the trial court admitted other, much
more probative, evidence related to appellant’s state of mind, including evidence
that (1) appellant knew the decedent to be violent and aggressive toward customers
who owed the decedent money, (2) the decedent had made threats against appellant
and had been aggressive toward appellant, (3) the decedent had a reputation for
violence, (4) the decedent carried a gun on his person, (5) the decedent was a drug
dealer and user, and (6) the decedent told appellant, “I should F-ing kill you. I’m
going to F you up.”

        The trial court did not abuse its discretion by excluding the evidence of
appellant’s belief that the decedent had broken into houses and taken guns.

C.      Verbal Threat, Gang Membership, Fights

        We assume without deciding that the trial court erred by excluding the
remainder of the evidence and that appellant preserved error, but we hold that the
alleged errors were harmless.

        1. Excluded Evidence

        Appellant made the following offer of proof for excluded evidence related to
a statement that the trial court ruled was hearsay:

        The testimony we would have elicited is the excited utterances during
        the confrontation outside of the apartment were [sic] several
        statements by [the decedent] of “nobody stands behind me and my
        fucking money. I want my fucking money. I should fucking kill you.
        You’re going to be sorry if I don’t get my fucking money. Remember,

                                          11
      I know where you live, and I know where you and [the girlfriend]
      live.”

      Also, appellant sought to introduce evidence that he knew the decedent to be
a member of a gang:

      I anticipate that my client will testify that he had spent a significant
      amount of time with [the decedent], that he had seen his tattoos, that
      based on his experience buying from drug dealers and being on the
      streets that he knew some of those tattoos were Blood gang tattoos,
      that [the decedent] admitted to him that he was a member of the Vice
      Lords Gang and he knows Bloods to be a violent street gang and
      which is one of things that affected his state of mind as far as his fear
      of the complainant.
The trial court ruled that the evidence was inadmissible because it was “more
prejudicial than probative.”

      Finally, appellant sought to introduce evidence that the decedent had told
appellant that the decedent “had gotten in fights with people in the past.” The trial
court ruled the evidence was irrelevant or inadmissible under Rule 403.

      2. Constitutional vs. Non-Constitutional Error

      The analysis of whether the alleged errors were harmful is different
depending upon whether the errors are constitutional or not. See Tex. R. App. P.
44.2; Mercier v. State, 322 S.W.3d 258, 261 (Tex. Crim. App. 2010). Appellant
contends that the exclusion of this evidence amounts to constitutional error.

      Generally, errors in sustaining the State’s objections to the admission of a
defendant’s evidence are non-constitutional. Easley v. State, 424 S.W.3d 535, 540
(Tex. Crim. App. 2014). Such errors are only considered constitutional errors if the
excluded evidence formed a vital portion of the defendant’s case. Id. Evidence
forms a vital portion of a defendant’s case if the exclusion effectively prevents the
defendant from presenting a defense. See id.

                                         12
      Here, the trial court allowed substantial evidence relating to appellant’s
theory of self-defense. The jury heard about the decedent’s violent reputation and
interactions with customers, animosity toward appellant, threats made toward
appellant, and carrying a firearm, and that appellant feared for his life and
displayed some behavior that was inconsistent with a person planning to murder
his drug dealer. Appellant was not effectively prevented from presenting his
defensive theory, and the excluded evidence would have incrementally furthered
the defensive theory. Cf. Walters v. State, 247 S.W.3d 204, 221–22 (Tex. Crim.
App. 2007) (holding that the exclusion of the defendant’s statement supportive of
his self-defense theory was non-constitutional error because the defendant fully
presented his self-defense theory when he testified); Portier v. State, 68 S.W.3d
657, 665–66 (Tex. Crim. App. 2002) (holding that the exclusion of statements
made to the defendant, which were probative of self-defense, was non-
constitutional error because the defendant was not prevented from presenting a
defense).

      The alleged errors are non-constitutional.

      3. No Harm

      Non-constitutional errors that do not affect the defendant’s substantial rights
must be disregarded. See Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b); Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A substantial right is affected,
i.e., the error is harmful, if the error had a substantial and injurious effect or
influence in determining the jury’s verdict. See Morales, 32 S.W.3d at 867. The
error is harmless, however, if we have a fair assurance that the error did not
influence the jury or had but a slight effect. See id. In making this determination,
we must consider the entire record, including the admitted evidence, the nature of
the evidence supporting the verdict, the character of the alleged error, and how the

                                         13
error might be considered in connection with other evidence. Id. We may consider
the jury instructions, the parties’ theories of the case, closing arguments, and voir
dire. Id.

       Although the trial court prevented appellant from stating the exact words of
the threat made some time before the homicide, appellant testified without
objection about the threat:

       Q. Did he tell you bad things that might happen to you or your family
       if you didn’t give him his car back?
       A. Yes.
Appellant testified that the decedent was screaming and yelling and being
aggressive. Appellant testified that the decedent “threatened” appellant on other
occasions, and told appellant at the time of the homicide, “I’m going to mess you
up, I’m going to get my F-ing money. . . . I should F-ing kill you. I’m going to F
you up.”

       Accordingly, the jury heard plenty of other evidence concerning the
decedent’s threats and animosity toward appellant. The exact words spoken by the
decedent on some day before the homicide were cumulative of other evidence of
the decedent’s threats. See Jefferson v. State, 900 S.W.2d 97, 102 (Tex. App.—
Houston [14th Dist.] 1995, no pet.) (harmless error to exclude police report when
the officers testified about contents); Vega v. State, 898 S.W.2d 359, 363 (Tex.
App.—San Antonio 1995, pet. ref’d) (harmless error to exclude evidence of “bad
blood” between the decedent’s gang and the defendant’s gang because the record
was replete with testimony concerning the ill-feelings between the two and their
gangs); see also Smith v. State, 355 S.W.3d 138, 151–52 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d) (harmless error to exclude evidence that the decedent
stabbed a third party on a prior occasion because there was other direct evidence,

                                         14
through defendant’s and other witnesses’ testimony, that the decedent was the first
aggressor).

      Regarding tattoos, the jury saw pictures of the decedent’s many tattoos.
Appellant testified about the various tattoos, including one with a “gangster rosta
guy” with a quote about “smoking like a rosta living like a mobsta.” One tattoo
included a “Tommy gun.” Appellant testified that the decedent’s tattoos made
appellant think that the decedent was violent or aggressive. Appellant testified,
“Obviously in my opinion if you have guns tattooed all over you, there’s a reason
behind all of that.”

      Thus, appellant was not prevented from describing the decedent’s tattoos,
including those of guns and a “gangster,” and explaining how those tattoos caused
appellant to view the decedent as violent and aggressive. The excluded evidence
was that appellant believed the decedent to be a member of a gang, which affected
appellant’s fear of the decedent. But there is plenty of other evidence in the record
that appellant was afraid of the decedent. Appellant brought a loaded gun to the
drug deal—something he had never done before—because he was “real nervous
about how the meeting would go.” Appellant testified about the growing animosity
and aggressive behavior the decedent was directing toward appellant. And, there is
no evidence in the record to indicate that the decedent’s membership in a gang
played any role in the confrontation between appellant and the decedent. Cf. Allen
v. State, 473 S.W.3d 426, 448–49 (Tex. App.—Houston [14th Dist.] 2011) (no
error to exclude evidence of the defendant’s knowledge of the decedent’s
membership in a gang in part because the altercation was not asserted to be gang-
related), pet. dism’d, 517 S.W.3d 111 (per curiam). Finally, we note that
appellant’s mother testified that the decedent was a “known gang member.”



                                         15
      Evidence that appellant knew the decedent “had gotten in fights with people
in the past” would not have influenced the jury’s verdict regarding the
reasonableness of appellant’s apprehension of danger in light of the other
significant evidence that appellant was able to present in support of his theory of
self-defense. In particular, the jury heard that the decedent had a violent reputation
for drug dealing, appellant believed the decedent to be a violent person, appellant
witnessed the decedent’s aggressive interactions with customers, the decedent
displayed animosity toward appellant, the decedent threatened appellant and his
family, the decedent carried a firearm, appellant was so nervous that he carried a
gun to a drug deal for the first time in his life, the decedent made specific threats to
kill and “F [appellant] up,” and appellant was “terrified” at the time of the
shooting. Moreover, appellant’s proffer did not indicate that the decedent had used
deadly force in the prior fights. Thus, the evidence would have had little influence
on the issue of whether appellant reasonably believed that deadly force was
immediately necessary to protect himself from the decedent’s use or attempted use
of unlawful deadly force.

      Considering the entire record, we have a fair assurance that the trial court’s
alleged errors of excluding some evidence of the decedent’s earlier threat against
appellant, gang membership, and physical altercations did not influence the jury or
had but a slight effect.

      Appellant’s first issue is overruled.

                            III.   ADMISSION OF EVIDENCE

      In his third issue, appellant contends that the trial court erred during the
punishment phase by admitting extraneous-offense evidence that had not been
adequately noticed. Specifically, appellant complains about the admission of (1)
insufficiently noticed statements by appellant showing racial prejudice; (2) an
                                          16
“unnoticed” statement by appellant that he desired to kill someone, (3) an
“improperly noticed” robbery, and (4) an “unnoticed” robbery.

A.     Legal Principles

       We review a trial court’s decision to admit evidence, like a decision to
exclude evidence, for an abuse of discretion. See Henley v. State, 493 S.W.3d 77,
82–83 (Tex. Crim. App. 2016).

       During the punishment phase of a trial, evidence is admissible if the trial
court deems it relevant to sentencing, “including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which he is being
tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a reasonable
doubt by evidence to have been committed by the defendant.” Tex. Code Crim.
Proc. art. 37.07, § 3(a)(1). “On timely request of the defendant, notice of intent to
introduce evidence under this article shall be given in the same manner required by
Rule 404(b), Texas Rules of Evidence.” Id. art. 37.07, § 3(g). 1 Furthermore:

       If the attorney representing the state intends to introduce an
       extraneous crime or bad act that has not resulted in a final conviction
       in a court of record or a probated or suspended sentence, notice of that
       intent is reasonable only if the notice includes the date on which and
       the county in which the alleged crime or bad act occurred and the
       name of the alleged victim of the crime or bad act. The requirement
       under this subsection that the attorney representing the state give
       notice applies only if the defendant makes a timely request to the
       attorney representing the state for the notice.
       1
          Rule 404 provides that evidence of a crime, wrong, or other act may be admissible for a
purpose other than to show a person acted in accordance with their character on a particular
occasion, but: “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)(2).

                                               17
Id.

       The purpose of the notice requirement is to avoid unfair surprise and trial by
ambush, Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.]
2002, no pet.), and to enable the defendant to prepare to meet the extraneous-
offense evidence. Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002,
no pet.) (assessing harm, considering whether the defendant was surprised by the
substance of the testimony and whether the surprise affected his ability to prepare
cross-examination or mitigating evidence), cited in Hernandez v. State, 176
S.W.3d 821, 824–25 (Tex. Crim. App. 2005). Generally, a trial court errs by
admitting evidence of an extraneous offense when the State has not complied with
the notice requirement of Article 37.07. See Crain v. State, 373 S.W.3d 811, 815
n.5 (Tex. App.—Houston [14th Dist.] pet. ref’d) (citing Roethel, 80 S.W.3d at
281); see also Hernandez, 176 S.W.3d at 824–25 (analogizing to Roethel when the
State did not provide adequate notice of extraneous offenses under Rule 404 of the
Texas Rules of Evidence).

B.     Background

       Before trial, appellant requested notice under Article 37.07. 2 The State filed
a notice of extraneous offenses and listed the following, among others:

       • The State plans to introduce testimony/evidence through witness
         Chelsea Murphy that the Defendant, Tyler Green, committed the
         offense of Aggravated Robbery with a Deadly Weapon on or about
         2014.
       • The State plans to introduce testimony/evidence that the Defendant
         has a racial prejudice against African Americans, including but not


       2
         Specifically, appellant requested: “Pursuant to Texas Code of Criminal Procedure 37.07
§ 3(g), the Defense hereby requests that the State provide notice of all evidence of extraneous
crimes and bad acts that it intends to introduce at the sentencing phase of the Defendant’s trial.”

                                                18
         limited to evidence of the Defendant’s derogatory language toward
         and about African Americans.

      At the beginning of the punishment phase, appellant made the following
argument concerning the aggravated robbery:

      Your Honor, I think that the notice is deficient because it does not
      provide a complainant’s name, it says aggravated robbery but we
      don’t have a manner and means whether this a firearm or anything
      else. It has no location, whether this is in Texas, in Mississippi or
      anything else.
      I did briefly speak with Miss Murphy a couple of days ago. I believe
      that she anticipates testifying that this also took place in 2010 instead
      of the notice which says 2014. So, for those reasons I believe the
      notice is insufficient on the aggravated robbery.
The trial court ruled that the notice of the aggravated robbery was reasonable and
the evidence would be admissible.

      Appellant also made several arguments about racial comments recorded in
jail phone calls, including that he had “not been told exactly what is on the phone
calls that is the extraneous that [the State] intends to prove.” The court ruled that
the jail phone recordings were admissible.

      During the punishment phase, appellant’s estranged wife Chelsea Murphy
testified about a robbery that occurred in 2010 and then about another robbery:

      Q. And why do you think it was a robbery?
      A. Because we’d actually robbed the same people the day before.
      Q. Okay. So you thought—
      DEFENSE: Objection, Your Honor, lack of notice.
      THE COURT: Overruled.

Additionally, she testified about a statement appellant once made:



                                         19
      Q. And give us more about that twisted mind. Is there anything he
      said that makes you feel that way?
      A. Yeah. He’s told me—I don’t know when it was, I think it was—I
      don’t know but, yeah, once he told me that if he—if there was
      anything he could do in this world it would be to kill a man and watch
      the life drain from his eyes.
Appellant objected, “I’ve never gotten any notice of any of these statements or any
of this testimony.” The trial court overruled the objection, stating that the statement
was not “an extraneous that has to be given notice of.”

      Finally, the trial court admitted exhibits consisting of the jail phone
recordings. The State played some excerpts and questioned a witness about the
calls, but the State did not elicit any testimony about statements showing a racial
prejudice.

C.    Waiver Regarding Racial Prejudice

      Appellant does not refer to any particular statements of racial prejudice in
his brief. No such statements are transcribed in the Reporter’s Record. The exhibits
include nineteen recordings totaling over five hours in length, and appellant does
not direct this court to any particular recording or timestamp.

      An appellant must cite to the record, and a failure to do so may result in
waiver of error on appeal. Miles v. State, 468 S.W.3d 719, 727 (Tex. App.—
Houston [14th Dist.] 2015), aff’d, 506 S.W.3d 485 (Tex. Crim. App. 2016); see
also Belle v. State, 543 S.W.3d 871, 875–76 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (issues waived when the appellant failed to refer to the pertinent
parts of the record). Although we construe briefs liberally and expect only
substantial compliance, the briefs should acquaint the appellate court with the
issues in a case and present argument that will enable the court to decide the case.
Miles, 468 S.W.3d at 727; see Tex. R. App. P. 38.9.

                                          20
       Without appellant citing to the allegedly inadmissible evidence, we are
unable to decide the case. We cannot determine what statements of racial prejudice
were admitted, if any, and whether the trial court erred. Appellant has waived any
error regarding the admission of racially prejudiced statements.

D.     Defendant’s Statements Not Extraneous Offenses

       Appellant contends that his statement about wanting to kill someone was an
“extraneous offense” and thus required notice under Article 37.07. An extraneous
offense is a crime or other bad act. See Moreno v. State, 858 S.W.2d 453, 462–63
(Tex. Crim. App. 1993). There must be “conduct” by the defendant that forms part
of the extraneous offense. Id. An inchoate thought is not conduct, and thus, not an
extraneous offense. See id. For example, a defendant’s “statements concerning his
desire to kidnap and kill” someone was not an extraneous offense for purposes of
Rule 404 of the Texas Rules of Evidence. Id. Likewise, appellant’s statement that
he wanted to “kill a man and watch the life drain from his eyes” was not an
extraneous offense for purposes of Article 37.07. Cf. id. 3

E.     No Harm

       We assume without deciding that the trial court erred by admitting evidence
of the two extraneous robberies because the State’s notice was inadequate. But,

       3
          Appellant does not contend that the notice requirement in Article 37.07 applies to
evidence other than extraneous offenses, so we do not address whether notice may be required
for other categories of evidence. Compare Chimney v. State, 6 S.W.3d 681, 697–98 (Tex. App.—
Waco 1999, pet. ref’d) (holding that Article 37.07 requires notice of character evidence), with
Brown v. State, 54 S.W.3d 930, 932 (Tex. App.—Corpus Christi 2001, pet. ref’d) (holding that
Article 37.07 did not require notice because the evidence was not an extraneous offense;
declining to apply Chimney), and Hardaway v. State, 939 S.W.2d 224, 226 (Tex. App.—
Amarillo 1997, no pet.) (recognizing that the plain text of Article 37.07’s notice requirement
“would seem to apply to all evidence,” but holding that “it was not the legislative intent to
include character evidence within the purview of the section 3(g) notice requirement”). For
purposes of this opinion, we assume, as appellant does, that Article 37.07 requires notice only for
extraneous offenses.

                                                21
even if we assume that the trial court erred by admitting evidence of the robberies,
statements regarding racial prejudice, and appellant’s inchoate thought to kill
someone, the record does not show harm.

      As mentioned above, we must disregard non-constitutional errors unless the
error had a substantial and injurious effect or influence in determining the jury’s
verdict. Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b); Morales v. State, 32 S.W.3d
862, 867 (Tex. Crim. App. 2000). In the context of inadequate notice under Article
37.07, we assess harm in light of the statute’s purpose to prevent surprise to the
defendant. See Roethel, 80 S.W.3d at 281–82; see also Vallery v. State, No. 14-14-
00167-CR, 2015 WL 780093, at *3 (Tex. App.—Houston [14th Dist.] Feb. 24,
2015, no pet.) (mem. op., not designated for publication); cf. Hernandez, 176
S.W.3d at 825 (applying Roethel harm analysis to inadequate notice under Rule
404). Because extraneous-offense evidence is “substantively admissible,” the
admission of inadequately noticed evidence is not “‘injurious’ if the defendant was
not surprised by the evidence.” Hernandez, 176 S.W.3d at 825; see also Roethel,
80 S.W.3d at 282 (“The lack of notice does not render the evidence inherently
unreliable, but instead raises a question about the effect of procedural
noncompliance. . . . Thus, we must analyze how the deficiency of the notice
affected appellant’s ability to prepare for the evidence.”).

      Furthermore, our sister court has held that a defendant’s failure to request a
continuance precludes an appellate court’s determination of harm from the
admission of inadequately noticed extraneous offenses under Article 37.07. See
Francis v. State, 445 S.W.3d 307, 319 (Tex. App.—Houston [1st Dist.] 2013),
aff’d, 428 S.W.3d 850 (Tex. Crim. App. 2014); see also McDonald v. State, 179
S.W.3d 571, 578 (Tex. Crim. App. 2005) (reasoning that the defendant did not



                                          22
suffer harm from a lack of notice under Rule 404 in part because if the defendant
had been surprised, he “could have requested a continuance”).4

       Appellant did not request a continuance or explicitly claim to be surprised at
trial due to inadequate notice. Neither at trial nor on appeal has appellant explained
how, because of the State’s failure to give notice, he was unable to prepare a
defense in this case. See Hernandez, 176 S.W.3d at 826. Moreover, because the
State’s notice identified the name and subject matter of an extraneous robbery,
appellant’s trial counsel was able to speak with the witness several days before her
testimony. Counsel even discovered facts about the alleged robbery that
contradicted the State’s notice. Thus, appellant was able to assuage any potential
surprise by interviewing the witness before she testified.

       Considering the entire record and the trial court’s alleged error, in light of
the purpose of avoiding surprise to the defendant, we hold that the alleged error did
not have a substantial and injurious effect or influence in determining the jury’s
verdict. The error must be disregarded. See Tex. R. App. 44.2(b).

       Appellant’s third issue is overruled.

                                     IV.    CONCLUSION

       Each of appellant’s issues is overruled. The trial court’s judgment is
affirmed.




       4
          Generally, a defendant’s “failure to request a postponement or seek a continuance
waives any error urged in an appeal on the basis of surprise.” Lindley v. State, 635 S.W.2d 541,
544 (Tex. Crim. App. [Panel Op.] 1982); see also Bryant v. State, 35 Tex. Crim. 394, 398 (1896)
(noting the “well-settled rule” that a defendant cannot obtain reversal of a conviction by arguing
that he was surprised by the testimony of a witness without first asking for “a postponement or
continuance of the case so that he can meet the testimony of the witness”).

                                               23
                                     /s/    Ken Wise
                                            Justice


Panel consists of Justices Wise, Zimmerer, and Spain.
Publish — Tex. R. App. P. 47.2(b).




                                       24
