AFFIRMED; Opinion Filed August 14, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01048-CR

                           GEORGE EVANS TAYLOR, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F13-63208-N

                             MEMORANDUM OPINION
                           Before Justices Fillmore, Myers, and Evans
                                    Opinion by Justice Evans
       Appellant George Evans Taylor appeals his conviction for robbery.           In two issues,

appellant contends that the trial court abused its discretion by allowing the State to: (1) present

irrelevant evidence and (2) present evidence that was more prejudicial than probative. Appellant

seeks reversal and a new trial. We affirm.

                                        BACKGROUND

       In the early morning hours of July 14, 2013, police officers Jose Gamez and Kesha

Ferguson responded to a 911 call concerning an altercation at a 7-Eleven near downtown Dallas.

The officers found James Nelson lying on the ground in an awkward position. Officer Kevin

Souders also arrived on the scene and noted that he could not see Nelson’s chest rise and fall.

Officer Souders testified that he found a pulse although it was only about 15 beats per minute.
Officer Souders further testified that something happened to put Nelson’s body in that position

because he located Nelson’s dentures a few feet away from his body as well as blood splattered

in the parking lot, but not where Nelson was lying.               Lieutenant Eric Velasquez, a Dallas

firefighter and trained EMT, also responded to the scene. Lieutenant Velasquez testified that

Nelson was not breathing when he arrived and that an oral airway was inserted. Lieutenant

Velasquez further testified that Nelson had a rapid and weak pulse but that they later lost the

pulse and began CPR. Finally, Lieutenant Velasquez noted that an IV was inserted and Nelson

was given epinephrine in an attempt to restart his heart.

        DeAndre Campbell witnessed the events on the night of the altercation between Nelson

and appellant.     Campbell, appellant and Nelson were part of a homeless community living

around the Margaret Hunt Hill Bridge. Campbell testified that all day on July 13, 2013 and into

the morning hours of July 14 the three of them were drinking beer and panhandling at the 7-

Eleven and that Nelson was doing crack cocaine. Nelson and appellant got into an argument

because Nelson owed appellant five dollars, appellant wanted his money, and Nelson would not

give it to him. As Nelson tried to stand up, appellant got up and slapped Nelson, knocking him

out. Afterwards, appellant went through Nelson’s pockets for money and told Campbell to leave

because some women were calling the police.

        Detective Cayce Shelton interviewed appellant and appellant admitted to shoving and

slapping Nelson and taking twenty dollars or so out of Nelson’s pocket. Appellant told Detective

Shelton that he was friends with Nelson, but that he was mad at Nelson for smoking crack out in

the open because it would bring out the police.1




    1
      On the same day as the robbery, Nelson died. His death was initially determined to be caused by a crack
cocaine overdose.


                                                    –2–
           Appellant was indicted for the offense of robbery which was defined as follows in the

indictment:

           intentionally, knowingly and recklessly, while in the course of committing theft of
           property and with intent to obtain or maintain control of said property, cause
           bodily injury, to JAMES NELSON, hereinafter called complainant, by
           STRIKING SAID COMPLAINANT'S HEAD WITH DEFENDANT'S HAND[.]

The indictment also alleged that appellant had two prior convictions for robbery. Appellant pled

not-guilty to the offense of robbery at trial. Appellant’s offense was similarly defined in the jury

charge:

           If you find and believe from the evidence beyond a reasonable doubt that the
           defendant, George Evans Taylor, on or about the 14th day of July A.D., 2013, in
           County of Dallas and said state, did then and there intentionally, knowingly or
           recklessly, while in the course of committing theft of property and with intent to
           obtain or maintain control of property, cause bodily injury to James Nelson,
           hereinafter called complainant, by striking said complainant’s head with
           defendant’s hand, you will find the defendant guilty of robbery, as charged in the
           indictment.

           The jury found the appellant guilty of robbery. The punishment hearing then commenced

and the State read the two prior convictions that had been alleged in the indictment.2 Appellant

pled not true to these two enhancement paragraphs. The State presented testimony by Rocky

Wiggins regarding appellant’s 2011 assault on him in which appellant beat Wiggins causing

injuries and permanent damage to his eye for a dispute over $10. In addition, Officer Natalie

Karr testified about a 2010 incident in which appellant punched a glass jar into a man’s face as

he was drinking from it causing it to shatter in his face. Next, Robert Johnson testified that he

2
    The indictment included the following enhancement paragraphs:

            And it is further presented to said Court that prior to the commission of the offense or offenses set
           out above, the defendant was finally convicted of the felony offense of ROBBERY, in the
           CRIMINAL DISTRICT COURT NO. 2 of DALLAS County, Texas, in Cause Number F0573351,
           on the 26TH day of JANUARY, 2007,

           And that prior to the commission of the offense or offenses for which the defendant was convicted
           as set out above, the defendant was finally convicted of the felony offense of ROBBERY, in the
           291ST JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F94-53774,
           on the 26TH day of OCTOBER, 1994[.]

                                                           –3–
witnessed appellant beating another man in 2013 and called 911 to report the incident. Officer

Matthew Kalash also testified that he arrived at the scene of the 2013 assault. Officer Kalash

identified appellant as the assailant and noted that appellant had beaten and stolen $3 from the

victim. The State also presented evidence of five other offenses including convictions for two

robberies, unlawful possession of a controlled substance, theft of person, and unauthorized use of

a motor vehicle. The jury found both enhancement paragraphs true and sentenced appellant to

seventy years’ imprisonment. Appellant filed a motion for new trial which the trial court

overruled. He then filed this appeal.

                                           ANALYSIS

       A.      Standard of Review

        A trial court’s decision to admit or exclude evidence is viewed under an abuse of

discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court

abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green

v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

       B.      The Evidence in Dispute Was Relevant and Not More Prejudicial than
               Probative

       Appellant argues that in permitting the State to introduce evidence that the victim, after

being slapped by appellant and falling to the ground, was possibly close to death by the time the

first responders arrived was: (1) irrelevant and (2) highly prejudicial. We disagree.

       At trial, and outside the presence of the jury, the following exchange took place:

       State’s Atty:          Your Honor, the next witness is Officer Souders with the Dallas
                              Police Department. When he arrived on the scene, he started
                              administering first aid to the complainant. Upon taking his pulse,
                              he had a little pulse rate that was very faint where he at first
                              thought -- because he first didn’t see a rise and fall in the chest, he
                              thought the complainant was already deceased and he checked his
                              pulse and found a pulse. He is going to testify that they waited on
                              paramedics to arrive. Paramedics started performing CPR on the
                              complainant.
                                               –4–
The Court:          And that’s the sum total of the testimony?

State’s Atty:       That is going to be the gist regarding the death portion, yes.

The Court:          What is objectionable about it?

Appellant’s Atty:   Judge, I’m going to object that this is, one, not relevant to the
                    elements of robbery; two, it is not contextual. It is all after the
                    fact. The only thing that this has a chance of doing is inflaming
                    the jury hearing about an injury that they are later going to hear, if
                    we go into this, that the M.E. would testify that nothing Mr. Taylor
                    did can be shown to have caused this injury. So the only thing this
                    would do is inflame the jury. So, one, it’s not relevant; two, it’s
                    not contextual and whatever probative value it has is outweighed
                    by --

The Court:          The Court heard the State and what the Court does recollect is that
                    during the State’s opening statement it described how the deceased
                    was struck by the defendant and how he felt [sic] and how his
                    dentures left his mouth and that there was some blood as a result.
                    Is that not true?

Appellant’s Atty:   That is true, Judge. But the testimony that the State has just
                    proffered doesn’t go into that at all. It doesn’t go into the strike; it
                    doesn’t go into the dentures. All of this is just about the fact that
                    he is essentially about to code.

State’s Atty:       Judge, he’s going to discuss the dentures. He’s going to tell us
                    where the dentures were located. He’s going to tell us about the
                    blood spatter. He’s going to tell us what he did pursuant to
                    treatment. This officer did administer treatment and part of his
                    treatment was to determine what was wrong with him name [sic] is
                    an element the pain.

Appellant’s Atty:   And that’s fine. I have no objection to the State asking him about
                    dentures on the ground or the blood on the ground. I don’t have an
                    objection to the State getting testimony from him that he rendered
                    first aid. I think -- that is all fine and that is all contextual. But the
                    moment we go past to talk about low pulse, not seeing his chest go
                    up and down, I thought he was already dead, when EMS comes in.
                    They start doing CPR, all of that. We know that that has to do
                    with the facts that he had OD’d on cocaine and has nothing to do
                    with Mr. Taylor. So being that it does not go towards the elements
                    of the offense and it’s not a result of Mr. Taylor’s conduct, that’s
                    the only thing it could do.



                                      –5–
       State’s Atty:          Your Honor, the State would say that it wouldn’t go to that at that
                              time. This officer didn’t know what he was dealing with. He was
                              doing procedures for a man that was unconscious by just being hit.
                              He didn’t know anything about drugs. He is rendering first aid to a
                              man who does not have a pulse. I would argue that it is contextual
                              --

       The Court:             The Court at this time has heard enough to make a ruling. It is the
                              Court’s opinion that the testimony is admissible. And if you
                              objected under 404(b), the Court first of all finds that the testimony
                              is relevant and that having found that it’s relevant then finds that
                              its prejudicial value is not outweighed by the inflammatory -- well,
                              it’s admissibility and value to the jury is not outweighed by the
                              prejudicial effects.

       Appellant’s Atty:      May I have a running objection on this entire line of testimony?

       The Court:             You may. That is your prerogative as counsel. It is admissible.
                              That is the Court’s ruling.

               1.      Relevance

       Appellant first argues that the introduction of Nelson’s near-death physical condition was

irrelevant. We disagree.

       Evidence is relevant if it has any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence. TEX. R. EVID. 401. In this case, appellant was charged with the offense of

robbery. A person commits the offense of robbery if, in the course of committing theft and with

the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly

causes bodily injury to another. TEX. PENAL CODE ANN. § 429.02 (West 2011). A “bodily

injury” is defined as physical pain, illness, or any impairment of physical condition. Id. at

§ 1.07(a)(8) (West Supp. 2014).

       Here, Nelson, the deceased victim, was not available to testify about his pain or physical

condition. Further, Detective Souders testified that, although Nelson was lying in an awkward

position, there was no visible injury on him. Accordingly, the testimony regarding Nelson’s

                                                –6–
physical condition was relevant to whether Nelson had suffered an element of the crime—

whether appellant had intentionally, knowingly, or recklessly caused bodily injury to Nelson.

As such, we cannot conclude that the trial court abused its discretion by finding this testimony

relevant and overrule appellant’s first issue.

               2.      Prejudicial

       Appellant next argues that even if the evidence was relevant, its probative value was

more prejudicial than probative and contributed to the lengthy sentence assessed against

appellant. Again, we disagree.

       There is a presumption that relevant evidence will be more probative than prejudicial.

See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Rule 403, however, allows

for the exclusion of relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. When an

appellant challenges the admissibility of the evidence under rule 403, the trial court must conduct

a balancing test. See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). When

undertaking a Rule 403 analysis, the trial court 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. See Gigliobianco v.

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).




                                                 –7–
       The first two Gigliobianco factors involve the probative value of the evidence—how

strongly it serves to make more or less probable the existence of a fact of consequence to the

litigation coupled with the proponent’s need for that item of evidence. Id. at 641. As discussed

above, the trial court could have determined that the disputed evidence was probative of

establishing whether appellant had intentionally, knowingly, or recklessly caused bodily injury to

Nelson. As the victim was deceased, he was not available to testify about his pain or physical

condition. Further, because Detective Souders testified that Nelson did not have a visible injury,

the evidence regarding Nelson’s physical state tended to make it more probable that Nelson had

sustained a bodily injury. Therefore, these factors weigh in favor of admission of the evidence.

       As for the third factor, the evidence at issue in this case is not so inherently inflammatory

that they would tend to elicit an emotional response and impress a jury in some “irrational yet

indelible way.” See Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002). The trial

court allowed evidence of Nelson’s near-death physical condition by Detective Souders and

Lieutenant Velasquez, but the jury did not hear any evidence that Nelson later died. As such,

this factor weighs in favor of admission of the evidence.

       The fourth and sixth factors concern the tendency of the evidence to confuse or distract

the jury from the main issues and the amount of time consumed by the presentation of the

evidence. See Gigliobianco, 210 S.W.3d at 641 (“Evidence that consumes an inordinate amount

of time to present or answer, for example, might tend to confuse or distract the jury from the

main issues.”). Detective Souders’s testimony regarding the physical condition of Nelson was

clear and brief. As a paramedic, Lieutenant Velasquez testified in more detail about the first aid

provided and Nelson’s physical condition when he arrived. The State argues that it only had its

witnesses describe Nelson’s physical condition in order to rebut appellant’s argument that

Nelson had no bodily injury. Thus, these factors weigh in favor of admission.

                                               –8–
       The fifth factor concerns “a tendency of an item of evidence to be given undue weight by

the jury on other than emotional grounds. For example, ‘scientific’ evidence might mislead a

jury that is not properly equipped to judge the probative force of the evidence.” Id. The

testimony regarding Nelson’s physical condition was not prone to this tendency, as it pertained

to matters that could be easily understood by a jury. Hence, this factor also weighs in favor of

admission. After completing the balancing test, we conclude that the trial court’s decision to

admit the evidence was not an abuse of discretion.

       Further, even if we had concluded that the trial court erroneously admitted the evidence,

appellant’s substantial rights were not affected. See TEX. R. APP. P. 44.2(b) (nonconstitutional

error that does not affect appellant’s substantial rights must be disregarded). If error is assumed

for purposes of this analysis only, we proceed to conduct a harm analysis. See Taylor v. State, 93

S.W.3d 487, 503 (Tex. App.—Texarkana 2002, pet. ref’d) (“If the appellate record in a criminal

case reveals nonconstitutional error that is subject to review under Tex. R. App. P. 44.2(b), we

do not reverse a judgment of conviction or punishment unless we determine the error is such that

it affects the substantial rights of the defendant. In order to properly conduct a harm analysis

under Rule 44.2(b), we are to determine whether the error affected a substantial right of the

defendant.   The Texas Court of Criminal Appeals has opined that, in order to make this

determination, we must decide whether the error had a substantial or injurious effect on the

jury’s verdict.”). Texas courts have determined that substantial rights are not affected by the

erroneous admission of evidence “if the appellate court, after examining the record as a whole,

has fair assurance that the error did not influence the jury, or had but a slight effect.” See Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

        Here, we have a fair assurance that any alleged error did not affect any substantial right

belonging to appellant. The appellant confessed to shoving and slapping Nelson and taking

                                                 –9–
twenty dollars or so out of Nelson’s pocket in his interview with Detective Shelton. The DVD of

this interview was entered as an exhibit. Further, there was Campbell’s eyewitness testimony of

the events at issue. In regard to appellant’s allegation that evidence of Nelson’s near-death

physical condition lead to the lengthy sentence assessed against appellant, we would note that the

record also contains extensive evidence at punishment of appellant’s prior convictions.

Specifically, the jury heard several witnesses describe prior assaults, robberies and beatings by

appellant. In one incident, appellant caused permanent eye damage to a victim. In another

incident, appellant smashed a glass jar into the victim’s face. The State also presented evidence

of five other offenses including convictions for robberies, unlawful possession of a controlled

substance, theft of person, and unauthorized use of a motor vehicle. Accordingly, the totality of

appellant’s prior acts and convictions could also account for the jury’s 70-year sentence.

Considering the record in its entirety, we conclude that this alleged error by the trial court was

harmless and overrule appellant’s second issue.

                                        CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                            /s/ David Evans
                                                            DAVID EVANS
                                                            JUSTICE


Do Not Publish
TEX. R. APP. P. 47
141048F.U05




                                              –10–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GEORGE EVANS TAYLOR, Appellant                     On Appeal from the 195th Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-01048-CR        V.                       Trial Court Cause No. F13-63208-N.
                                                   Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 14th day of August, 2015.




                                            –11–
