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IN THE
TENTH COURT OF APPEALS
 

No. 10-98-359-CR

     GENE WILLIAMS,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 278th District Court
Madison County, Texas
Trial Court # 10,148-B
                                                                                                                
                                                                                                            
O P I N I O N
                                                                                                                
    
     A jury convicted Gene Williams of assault of a public servant, and the trial court 
sentenced him to nine years’ confinement.  Williams appeals on two issues both based on the
admission of evidence pertaining to misconduct by another inmate who was not on trial. 
Because evidence of the other inmate’s misconduct is not relevant and its probative value is
substantially outweighed by its prejudicial effect, we conclude the court erred by overruling
Williams’ objections.  Finding that he was harmed by the error, we will reverse the judgment.
FACTS
      Williams is an inmate at the Ferguson Unit of the Texas Department of Criminal Justice-Institutional Division.  Williams and Desmond Martin were indicted together for assault of
Andy Casey, a correctional officer.  The testimony at trial indicated that Casey was escorting
Martin to his cell after he had been found masturbating in the day room.  Once they arrived at
Martin’s cell, Casey requested that his door be opened.  However, during this process, a
malfunction occurred which caused William’s cell to open as well.  Once this occurred,
Williams allegedly left his cell and in conjunction with Martin assaulted Casey.
      Martin’s case was severed, so he was not involved in Williams’ trial, as either a defendant
or witness.  During a pretrial hearing the court determined the admissibility of evidence of
Martin’s misconduct.  The State relied on the fact that Williams and Martin were indicted
together.  Although Williams timely objected, the court allowed the evidence to be introduced
during trial.
      References to Martin’s misconduct were first made by the State, during its opening
statement:
[Casey] sees inmate Desmond Martin bending over and he looks at him and he sees . .
. that there’s a female guard standing there and he notices that he’s masturbating. 
And that’s a violation of the rules.

      Evidence of Martin’s misconduct was later elicited by the State during the direct
examination of Officer Casey in the State’s case-in-chief:
Q.And was there anything that called your attention to Mr. Martin?
 
A. Yes, sir, I turned around and I saw him at the window of the dayroom looking
down the hallway — looking at a female officer.  And I kind of walked around a
little bit to see exactly what he was doing, and he was involved in sexual
misconduct.
 
Q.And what is that?
 
A. Masturbating.

      The State also alluded to Martin’s misconduct during its opening argument:
The reason [Casey] was taking [Martin] up to his cell was because of the sexual
misconduct on the part of Mr. Martin in the dayroom.
      Finally, during the State’s rebuttal the prosecutor made the following statements seeking to
have the jury punish Williams for the act of sexual misconduct committed by Martin:
We need to send a message to this prisoner that we in this county . . . are not going to
tolerate inmates taking advantage of our officers . . . sexual misconduct, or whatever,
in front of these ladies that are working there.  We’re not going to tolerate that.  And
you can send a message by finding this man guilty because he is guilty.
DISCUSSIONDuring a pretrial hearing, Williams objected to evidence of Martin’s misconduct as 
irrelevant and prejudicial.  Tex. R. Evid. 402, 403.  When a court, out of the jury’s presence,
hears and overrules objections to evidence, those objections need not again be made before the
jury when the evidence actually is presented to the jury. Tex. R. Evid. 103(a)(1); Ethington
v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  Consequently, Williams’ objections
were sufficient to preserve his complaint about the admissibility of evidence of Martin’s
misconduct.
      Evidence of Martin’s misconduct was not relevant
      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.  This does not mean that the fact must be in dispute; 
rather, the fact must only have something to do with the ultimate determination of guilt or
innocence in the case.  Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991); see Long
v. State, 10 S.W.3d 389, 396 (Tex. App.—Texarkana 2000, pet. ref’d).  Irrelevant evidence is
inadmissible.  Tex. R. Evid. 402.  We review the trial court's admission of evidence over a
timely lack-of-relevancy objection under an abuse of discretion standard.  Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Long, 10 S.W.3d at 396.
      The State argued that the evidence of Martin’s misconduct provided a background as to
why the assault occurred.  The State claims that Martin’s misbehavior led to a continuing
incident which eventually permitted him and Williams to assault Casey.  The State is entitled to
put on evidence of what occurred immediately before and after the commission of an offense,
if that evidence is relevant to something at issue in the case, and is not inherently prejudicial. 
Christopher v. State, 833 S.W.2d 526, 529 (Tex. Crim. App. 1992).
      Here, the issue is whether Williams intentionally and knowingly caused bodily injury to
Casey.  Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2000).  Evidence of Martin’s
misconduct, however, could not have had a tendency to make the existence of a fact of
consequence more or less probable than it would have been otherwise.  Montgomery, 810
S.W.2d at 391.  Consequently, the evidence was not relevant and had no bearing on the
ultimate determination of Williams’ guilt or innocence.  Mayes, 816 S.W.2d at 84.  Therefore,
we conclude that the trial court abused its discretion in the admission of evidence pertaining to
the misconduct by another inmate who was not before the court.  Christopher, 833 S.W.2d at
529-30; Montgomery, 810 S.W.2d at 391.
Even if the evidence were relevant, its probative value was outweighed by its
prejudicial effect
      Williams also objected pretrial that the evidence was “prejudicial.”  A court may exclude
relevant evidence if its probative value is substantially outweighed by the danger of unfair
prejudice.  Tex. R. Evid. 403.  In balancing the probative value of evidence of extraneous
conduct against the danger of unfair prejudice, a court may consider the following factors:
      ∙    the inherent probative value of the evidence;
 
      ∙    the similarity of the conduct to the offense on trial;
 
      ∙    the strength of the evidence of the extraneous conduct;
 
      ∙    the nature of the extraneous conduct and its potential for impressing the jury in
irrational, but indelible ways;
 
      ∙    the time necessary to develop the evidence, giving consideration to whether the jury’s
attention will be diverted from the offense on trial; and
 
      ∙    the State’s need for the evidence including: (a) the availability of other evidence which
tends to accomplish the same “other purpose”; (b) the strength of the other evidence;
and (c) whether the purpose served by the admission of the extraneous conduct relates
to an issue that is in dispute.

Montgomery, 810 S.W.2d at 389-90; Horton v. State, 986 S.W.2d 297, 302 (Tex.
App.—Waco 1999, no pet.).
      Evidence of Martin’s masturbation has no “inherent probative value” and is in no way
similar to the evidence regarding Williams’ assault of Casey.  The strength and nature of the
evidence probably left an impression upon the jury that Williams was somehow involved with
Martin’s sexual misbehavior.  Evidence of the misconduct was presented during the State’s
examination of Casey.  The State referred to the misconduct during its opening statement, final
argument, and in its rebuttal.  Accordingly, we believe that the jury’s attention was diverted
from the evidence.  Finally, the State lacked a need for this testimony, since the evidence in no
way established that Williams assaulted Casey.
      Consequently, based on the Montgomery factors cited above, we conclude that even if the
evidence were admissible its probative value was substantially outweighed by its prejudicial
effect.  Accordingly, we must decide whether Williams was harmed by this error. 
Montgomery, 810 S.W.2d at 391.
      Harm from the erroneous admission of evidence of Martin’s misconduct 
      The trial court’s error in admitting this evidence is a non-constitutional error; therefore,
we must determine whether Williams’ “substantial rights” were affected by the erroneous
ruling.  Tex. R. App. P. 44.2(b); Horton, 986 S.W.2d at 303.  “A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict.”  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Horton, 986 S.W.2d
at 303.  In analyzing harm under Rule 44.2(b):
we review the entire record to determine whether the error had more than a slight
influence on the verdict.  If we find that it did, we must conclude that the error
affected the defendant’s rights in such as way as to require a new trial.  If we have
grave doubts about its effect on the outcome, we should find that the error was such as
to require a new trial.  Otherwise, we should disregard the error.

Horton, 986 S.W.2d at 303; Fowler v. State, 958 S.W.2d 853, 866 (Tex. App.—Waco 1997),
aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999).  
      In Horton, we developed factors to analyze harm flowing from the erroneous denial of a
Rule 403 objection.  Horton, 986 S.W.2d at 303-04.  Among these factors are: the strength of
the other evidence; the emphasis that the State placed on the erroneously admitted evidence;
whether other extraneous-conduct evidence was properly admitted; and whether the court
provided appropriate limiting instructions.  Id.  
      The evidence of Williams’ guilt is strong but cannot be considered “overwhelming.” 
Casey was the only eyewitness who identified Williams as the perpetrator, and Casey’s
testimony raised questions about his involvement.  A significant portion of the trial was
devoted to establishing the events that lead up to the assault.  Additionally, as we have noted,
the prosecutor referred to Martin’s misconduct during his opening statement, his examination
of Casey, his final argument, and in his rebuttal.  In rebuttal, the State suggested:
We need to send a message to this prisoner that we in this county . . . are not going to
tolerate inmates taking advantage of our officers . . . sexual misconduct, or whatever,
in front of these ladies that are working there.  We’re not going to tolerate that.  And
you can send a message by finding this man guilty because he is guilty.  

No other extraneous-act evidence was admitted, and no limiting instruction was given
regarding the evidence of Martin’s misconduct.
      The State emphasized the erroneously admitted evidence and even asked for it to be
considered when assessing Williams’ punishment.  Thus, we are left with grave doubts about
this evidence’s effect on the outcome of his trial.  We conclude, then, that the erroneous
admission of the evidence regarding Martin’s misconduct affected Williams’ substantial rights
and mandates that the judgment be reversed.


      We reverse the judgment and remand the cause for a new trial.
                        


                                                                         BILL VANCE
                                                                         Justice

Before Chief Justice Davis
      Justice Vance, and
      Justice Gray
      (Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed August 30, 2000
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