                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00079-CR

                                            Derek ATKINS,
                                               Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                           From the County Court, Atascosa County, Texas
                                       Trial Court No. 31690
                              Honorable Lynn Ellison, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 4, 2018

AFFIRMED

           Derek Atkins was convicted by a jury of making silent or abusive calls to 9-1-1 service.

On appeal, Atkins contends the trial court abused its discretion in overruling his objections to two

exhibits introduced into evidence by the State. We affirm the trial court’s judgment.

                                            BACKGROUND

           Around midnight on August 16, 2015, two officers, Sergeant Wilson Butler and Officer

William Permenter, were dispatched to Atkins’s house in response to several calls made to 9-1-1

from the same phone number in which the caller hung up several seconds after the dispatcher
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answered the call. After the third hang-up call, the dispatcher returned the call, and Atkins told

the dispatcher he heard a noise outside his house. Two additional hang-up calls were made before

the officers arrived at Atkins’s house.

       When the officers arrived, they did not see anyone in the area around Atkins’s house.

Atkins admitted placing one call because he heard something outside but stated the other calls

were “butt dialed.” Neither of the officers believed Atkins’s statements. One of the officers

instructed Atkins not to “butt dial” 9-1-1 again, and the officers left.

       At 1:25 a.m. and 2:00 a.m. on August 17, 2015, two additional calls were made from the

same phone number, and the caller again hung up several seconds after the dispatcher answered.

Officer Permenter returned to Atkins’s home and arrested him for making silent calls to 9-1-1

service. Officer Permenter testified Atkins said he “butt dialed” those calls also.

       At trial, the officers testified regarding being dispatched to Atkins’s house, their encounter

with Atkins, and his subsequent arrest. In addition, Jymie Perna, the communications supervisor

for the Atascosa County Sheriff’s Office, provided background details regarding the 9-1-1 service

and how it operates. Perna explained the 9-1-1 dispatcher is provided the phone number and the

address from which the call is placed. If the call is placed from a cell phone, the 9-1-1 system

pinpoints the location of the call within 300 feet. Perna further explained a separate system called

the Odyssey system can be used to look up the address identified by the 9-1-1 system to determine

if any other information is linked to the address. If the address is linked to the name of a person

who has been arrested, the system will provide a criminal justice history and the person’s personal

data. Finally, Perna explained all information relating to 9-1-1 calls are stored in a computer

system called the Aurora system which can be used to run reports.

       Perna identified State’s Exhibit 1 as a report from the Aurora system showing 9-1-1 calls

made from the same phone number used by Atkins on August 16-17, 2015. The report showed 64
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incoming calls were made from the phone number between January 28, 2015 and September 13,

2016. Atkins’s attorney objected to the admission of the exhibit under Rule 403 of the Texas Rules

of Evidence. The trial court overruled the objection, and the exhibit was admitted into evidence.

       Perna also identified State’s Exhibit 5 as a party data sheet from the Odyssey system. The

exhibit contained a mug shot of Atkins and identified his phone number as the same number from

which the 9-1-1 calls were placed. Atkins’s attorney asserted the exhibit “show[ed] a mugshot”

and objected “to the prejudicial value of the picture.” The trial court overruled the objection, and

the exhibit was admitted into evidence.

       During the jury’s deliberations, the jury requested the trial court to provide the jury with

State’s Exhibit 1. The trial court complied with this request. After additional deliberations, the

jury returned a verdict finding Atkins guilty of the charged offense. The trial court sentenced

Atkins to 180 days in jail, but suspended the sentence and placed Atkins on twenty-four months

of community supervision. Atkins appeals.

                                     STANDARD OF REVIEW

       Rule 403 provides that the court “may exclude 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. We review the trial court’s decision to admit evidence, as well as its decision as to

whether the danger of unfair prejudice substantially outweighed the probative value of the

evidence, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010). Therefore, in determining whether the danger of unfair prejudice substantially

outweighs the probative value of the evidence, we do not conduct a de novo review and we “should

reverse the judgment of the trial court rarely and only after a clear abuse of discretion.” Moses v.

State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) (internal quotation omitted).
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          Rule 403 favors the admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial. Hammer v. State, 296 S.W.3d 555, 568 (Tex.

Crim. App. 2009); McCallum v. State, 311 S.W.3d 9, 15 (Tex. App.—San Antonio 2010, no pet.).

Rule 403 “envisions exclusion of evidence only when there is a clear disparity between the degree

of prejudice of the offered evidence and its probative value.” Hammer, 296 S.W.3d at 568 (internal

quotation omitted).

          In determining whether the admission of relevant evidence violates Rule 403, a trial court

must balance the inherent probative force of the proffered item of evidence along with the

proponent’s need for that evidence against: (1) any tendency of the evidence to suggest decision

on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the

main issues; (3) 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 (4) the likelihood that presentation

of the evidence will consume an inordinate amount of time or merely repeat evidence already

admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The objecting

party bears the burden to show the danger of unfair prejudice substantially outweighs the probative

value of the evidence. Tucker v. State, 456 S.W.3d 194, 207 (Tex. App.—San Antonio 2014, pet.

ref’d).

                                           STATE’S EXHIBIT 5

          In his first issue, Atkins contends the trial court abused its discretion in overruling his Rule

403 objection to the admissibility of the party data sheet. In his brief, Atkins contends the exhibit

was unfairly prejudicial because it included a mug shot of Atkins and an FBI number. At trial,

however, Atkins’s attorney did not object that the inclusion of the FBI number made the exhibit

prejudicial. Instead, Atkins’s attorney only objected to the prejudicial value of the mug shot.

Therefore, we only address whether the trial court overruled the objection to the exhibit because it
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included a mug shot. See TEX. R. APP. P. 33.1 (requiring complaint to be preserved for appellate

review by an objection stating the specific grounds for the ruling).

       “‘[P]robative value’ refers to the inherent probative force of an item of evidence—that is,

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.” Gigliobianco, 210

S.W.3d at 641. When the proponent of the evidence has other compelling or undisputed evidence

to establish the proposition or fact that the evidence goes to prove, the probative value of the

evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance.

Id.

       In his brief, Atkins acknowledges the exhibit connected Atkins to the phone number used

to call 9-1-1; however, he argues the need for the evidence was minimal because the 9-1-1 system

linked the phone number to the address where the officers questioned Atkins and later arrested

him. In addition, Atkins admitted calling 9-1-1 from his phone. Therefore, although the evidence

was probative, the State did not need the evidence.

       “Unfair prejudice does not arise from the mere fact that evidence injures a party’s case.”

Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). “Virtually all evidence that a party

offers will be prejudicial to the opponent’s case, or the party would not offer it.” Id. Unfair

prejudice “refers to a tendency to suggest [a] decision on an improper basis, commonly, though

not necessarily, an emotional one.” Gigliobianco, 210 S.W.3d at 641.

       In arguing States Exhibit 5 was overly prejudicial, Atkins asserts “there was no evidence

that the mug shot in State’s Exhibit 5 was taken when Atkins was arrested for the offense charged

in this case.” Perna testified, however, that the party data sheet was printed by him on October 6,

2016 “[f]or the purpose of this case.” Since Atkins was arrested for the offense for which he was

on trial and Perna testified the party data sheet was printed “[f]or the purpose of this case,” the
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exhibit does not suggest, as Atkins contends, that Atkins had “prior run-ins with the law.” See

Hollis v. State, 219 S.W.3d 446, 466 (Tex. App.—Austin 2007, no pet.) (“A defendant’s mug shot

taken at the time of his arrest for the offense being tried is admissible because its danger of

introducing an extraneous offense is vitiated.”). 1 Therefore, we cannot say the exhibit had a

tendency to suggest that the jury make a decision on an improper basis. In addition, the State’s

introduction of the exhibit was straightforward and did not distract the jury by taking an inordinate

amount of time. Finally, there is nothing in the record to suggest the jury was not equipped to

evaluate the probative force of the evidence or would have any tendency to give the exhibit undue

weight.     Therefore, after balancing the various factors, we hold the trial court could have

reasonably concluded the probative value of the exhibit was not outweighed by the danger of unfair

prejudice. Accordingly, the trial court did not abuse its discretion by admitting the exhibit.

                                             STATE’S EXHIBIT 1

          In his second issue, Atkins argues the trial court erred in admitting the phone log identifying

sixty-four phone calls made to 9-1-1 from January 28, 2015 to September 13, 2016, from the same

phone number used by Atkins on the date of the offense. Although Atkins acknowledges the

evidence was probative and necessary to rebut the theory that Atkins unintentionally called 9-1-1,

Atkins suggests the State could have shortened the period of time encompassed by the exhibit so

the evidence would be less prejudicial.

          In order to prove Atkins was guilty of the charged offense, the State had the burden to

prove the phone calls were knowingly and intentionally made. See TEX. PENAL CODE ANN.



1
 We note defense counsel did not object to the exhibit on the basis that the mug shot was from a prior offense. See
Hollis, 219 S.W.3d at 466 (noting mug shot obtained from a prior offense is frequently inadmissible as providing
prejudicial evidence of an extraneous offense). After the exhibit was admitted, defense counsel questioned Perna
about whether the Odyssey system identified Atkins’s name associated with the address because he had called 9-1-1
before, and Perna responded “[t]hat or he was being arrested before.” Defense counsel did not re-urge his objection
after this testimony.

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§ 42.061(a) (West 2016). Under the facts in this case, the State was required to prove Atkins

knowingly and intentionally made the 9-1-1 calls as opposed to innocently “butt dialing” 9-1-1.

       The doctrine of chances is “‘the instinctive recognition of that logical process which

eliminates the element of innocent intent by multiplying instances of the same result until it is

perceived that this element [i.e. innocent intent] cannot explain them all.’” Sifuentes v. State, 494

S.W.3d 806, 816 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (quoting Plante v. State, 692

S.W.2d 487, 491 (Tex. Crim. App. 1985)); see also Brown v. State, 96 S.W.3d 508, 512 (Tex.

App.–Austin 2002, no pet.) (same). “For the doctrine to apply, there must be a similarity between

the charged and extraneous offenses, since it is the improbability of a like result being repeated by

mere chance that gives the extraneous offense probative weight.” Brown, 96 S.W.3d at 512.

       Because Atkins told the officers several of the phone calls were “butt dialed,” evidence of

the numerous other 9-1-1 calls from the same phone number following a pattern of the phone call

being abandoned or requiring the 9-1-1 operator to return the phone call was both very probative

and very necessary for the State to prove Atkins knowingly and intentionally made the phone calls

resulting in the charged offense. Furthermore, because the “doctrine of chances” permits the jury

to consider the other phone calls in determining if the phone calls in question were knowingly and

intentionally made, the evidence did not confuse or distract the jury from the main issues, and the

introduction of the exhibit did not take an inordinate amount of time. Finally, there is nothing in

the record to suggest the jury was not equipped to evaluate the probative force of the evidence.

Therefore, given the highly probative nature of the evidence and the State’s need to rebut the theory

that the phone calls were unintentionally made, the trial court could have reasonably concluded

the probative value of the exhibit was not outweighed by the danger of unfair prejudice.

Accordingly, the trial court did not abuse its discretion by admitting the exhibit.



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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                Karen Angelini, Justice

DO NOT PUBLISH




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