                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00202-CR


CHAQOIA CHANDRELLE GOULD                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1273152R

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                         MEMORANDUM OPINION 1

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      Appellant Chaqoia Chandrelle Gould appeals her conviction and fifteen-

year sentence for aggravated robbery with a deadly weapon. 2 In one issue, she

challenges the trial court’s decision to admit parts of her video-recorded interview



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
with the police on the ground that those parts violated rule of evidence 403. We

affirm. 3

                                 Background Facts

       In February 2010, appellant and Gary Wayne Bryant invaded Elida Salas’s

Fort Worth home. That morning, appellant, who was dressed nicely, knocked on

Salas’s door. After Salas answered the door and appellant asked for a lady who

lived across the street, Bryant forced his way through the door while pulling

Salas’s hair and holding a gun. He hit Salas with the gun several times in the

course of stealing money, jewelry, and electronics. Beaten and bleeding, Salas

believed she would be killed.

       While Bryant searched the home, appellant stood with Salas and used a

cell phone several times.       Bryant gave appellant the gun while he loaded a

television into a car. Appellant pointed the gun at Salas’s head. Upon leaving

the home, appellant wiped a door handle with a towel to remove fingerprints.

Bryant drove one of Salas’s cars away from the scene, while appellant drove her

own car. Salas called 911.

       After the robbery, Fort Worth Police Department Detective Ernie Pate

interviewed Salas. Months later, the police obtained DNA linking Bryant to the

robbery. Salas identified him in a photo spread. Detective Pate continued his

       3
        This case was originally submitted on March 29, 2013. On June 10, 2014,
the court, on its own motion, ordered the appeal to be resubmitted on
July 1, 2014; assigned this case to a new panel; and assigned the undersigned
to author the opinion.


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investigation to find the female perpetrator, and from one of Bryant’s

acquaintances, he received information to look for a black female named

Chaqoia, who was an exotic dancer and had tattoos on her buttocks that said

“boss” and “bitch.” Detective Pate and a partner began visiting strip clubs, and

they eventually centered their investigation on appellant. She was arrested in

June 2011. Following her arrest, she participated in a recorded interview with

Detective Pate.    During the interview, she admitted her participation in the

robbery.

      A grand jury indicted appellant for aggravated robbery with a deadly

weapon. She filed several pretrial motions, including a motion to suppress, in

which she sought to exclude parts of the interview because they were more

unfairly prejudicial than probative. The trial court ordered several redactions but

overruled appellant’s further objections.

      At trial, the court entered a plea of not guilty on appellant’s behalf. Over

appellant’s repeated objections, the court admitted the redacted recording of the

interview.   After the parties presented evidence and arguments, the jury

convicted appellant and set her punishment at fifteen years’ confinement. The

trial court sentenced her accordingly, and she brought this appeal.

                          Alleged Error under Rule 403

      In her only issue, appellant argues that the trial court should have excluded

parts of the recorded interview in which she discussed her failure to report the




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robbery, her employment as an exotic dancer, and her tattoos. She asserts that

these portions were unfairly prejudicial and misleading to the jury.

Standard of review and applicable law

      We review a trial court’s admission of evidence for an abuse of discretion.

Sanders v. State, 422 S.W.3d 809, 812 (Tex. App.—Fort Worth 2014, pet. ref’d).

We must uphold the ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. James v. State, 335

S.W.3d 719, 723 (Tex. App.—Fort Worth 2011, no pet.) (citing Willover v. State,

70 S.W.3d 841, 845 (Tex. Crim. App. 2002)). We reverse the ruling only if it lies

outside the zone of reasonable disagreement.        See Sanders, 422 S.W.3d at

812–13.

      Evidence is relevant when 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.” Tex. R. Evid. 401; see Kirk v. State, 421 S.W.3d 772, 782

(Tex. App.—Fort Worth 2014, pet. ref’d). Relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading of the jury, considerations of undue delay, or

needless presentation of cumulative evidence.       Tex. R. Evid. 403; Kirk, 421

S.W.3d at 782.

      Once a rule 403 objection is made, the trial court must weigh the probative

value of the evidence to determine if it is substantially outweighed by the

damaging characteristics stated in the rule.     Kirk, 421 S.W.3d at 782 (citing


                                         4
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)).               When

engaging in this balancing, the court should consider the inherent probative force

of the proffered item of evidence and the proponent’s need for that evidence

against any tendency of the evidence to suggest a decision on an improper

basis, 4 any tendency of the evidence to confuse or distract the jury from the main

issues, 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 the

likelihood that presentation of the evidence will consume an inordinate amount of

time or merely repeat evidence already admitted.           Id. (citing Gigliobianco v.

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). “The rules of evidence

favor the admission of relevant evidence and carry a presumption that relevant

evidence is more probative than prejudicial.” Id.

Analysis

      Appellant argues that the trial court erred by admitting parts of the

recorded interview in which she discussed her failure to report the robbery, her

employment as an exotic dancer, and her tattoos.           She concedes that “[b]y

themselves, these issues are not overly prejudicial,” but she asserts that “when

taken as a whole, they unfairly paint [her] as an inherently bad person.” She also

concedes that “significant evidence” supports her guilt.


      4
       Commonly, the improper basis relates to appealing to the jurors’
emotions. See Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—Fort Worth
2008, pet. ref’d).


                                         5
      Appellant’s failure to report the robbery

      In appellant’s interview with Detective Pate and in her closing argument,

she claimed that she had participated in the robbery without planning to do so,

under Bryant’s commands, and while under fear and duress. 5 In the interview,

appellant said that Bryant had threatened to kill her and that she had believed

him. In the closing argument, she relied on statements in the interview and on

Bryant’s aggressive behavior at the scene of the crime. She argued that from

her perception of Bryant’s abuse of Salas, she had learned “a real good lesson

. . . of what [would] happen[]” if she opposed Bryant. Appellant also contended

that she had attempted to persuade Bryant to leave Salas’s house by telling him

that she had heard noises outside.

      From this context, we cannot conclude that the trial court abused its

discretion by admitting the portion of appellant’s recorded interview that

discusses her failure to report the robbery. The trial court could have rationally

determined that the evidence was probative to rebut the duress defense because

it showed that later, while appellant was not under any alleged fear or duress,

she did not contact the police concerning prosecution of or protection from

Bryant’s threats (which would have, by extension, informed the police about what


      5
       See Tex. Penal Code Ann. § 8.05(a) (West 2011) (“It is an affirmative
defense to prosecution that the actor engaged in the proscribed conduct because
he was compelled to do so by threat of imminent death or serious bodily injury to
himself or another.”).    The jury charge contained instructions related to
appellant’s duress defense.


                                        6
had happened with Salas). See Jones v. State, 119 S.W.3d 412, 420 (Tex.

App.—Fort Worth 2003, no pet.) (holding that extraneous offense evidence may

be relevant and admissible to rebut a defensive theory); see also King v. State,

189 S.W.3d 347, 355 (Tex. App.—Fort Worth 2006, no pet.) (concluding that

evidence of an extraneous offense may be probative to rebut the defensive

theory of duress).

      Moreover, appellant’s failure to report the felony was, at most, a class A

misdemeanor. Tex. Penal Code Ann. § 38.171(b) (West 2011). Because the

extraneous conduct was much less serious than the offense appellant was

charged with committing, the trial court could have reasonably found that the

recorded statements regarding her failure to report would not have caused the

jury to decide appellant’s guilt on an improper basis. See Tex. R. Evid. 403;

Rivera v. State, 269 S.W.3d 697, 706–07 (Tex. App.—Beaumont 2008, no pet.).

      Also, the length of the exchange regarding appellant’s failure to report the

robbery was minimal compared to the remainder of the interview and to the total

length of the trial. It is also unlikely that the statement was given undue weight

by the jury because, as appellant admits, there were several other factors

suggesting her guilt, such as her recorded confession.

      Moreover, the trial court could have reasonably concluded that the

admission of this portion of appellant’s interview did not mislead the jury. See

generally Gigliobianco, 210 S.W.3d at 642.       The trial court gave a limiting




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instruction to the jury that explained the permissible purposes for which it could

consider appellant’s interview.

      We hold that the trial court was in a superior position to determine the

impact of the evidence, that the court’s ruling is within the zone of reasonable

disagreement, and that there is no abuse of discretion. See James, 335 S.W.3d

at 723; Willover, 70 S.W.3d at 845. Thus, we overrule appellant’s sole issue to

the extent that it complains about the discussion in the interview concerning

appellant’s failure to report the robbery.

      Appellant’s tattoos and employment as an exotic dancer

      Appellant also complains about statements in the interview that reference

her tattoos and her employment as an exotic dancer. But without objection, the

jury received evidence regarding appellant’s tattoos and employment as an

exotic dancer from Detective Pate’s testimony, apart from the recorded interview.

Because the same evidence of which appellant complains appears elsewhere in

the record, we cannot conclude that the admission of the evidence was harmful,

even if we were to conclude that it was erroneous. See Tex. R. App. P. 44.2(b);

Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error in the

admission of evidence is cured where the same evidence comes in elsewhere

without objection.”); Sandone v. State, 394 S.W.3d 788, 794 (Tex. App.—Fort

Worth 2013,no pet.) (“The improper admission of evidence is harmless if the

same or similar evidence is admitted without objection at another point in the

trial.”). We therefore overrule the remainder of appellant’s only issue.


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                               Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.


                                             /s/ Terrie Livingston

                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

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

DELIVERED: August 21, 2014




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