                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________
                              No. 09-17-00154-CR
                              No. 09-17-00155-CR
                              No. 09-17-00156-CR
                              No. 09-17-00157-CR
                              No. 09-17-00158-CR
                              No. 09-17-00159-CR
                           ____________________
                    RONALD EVAN COOPER, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

_______________________________________________________           ______________

                  On Appeal from the 359th District Court
                        Montgomery County, Texas
           Trial Cause No. 15-09-09857-CR (Counts 1, 2, 3, 4, 5, & 6)
________________________________________________________           _____________

                         MEMORANDUM OPINION

      In six appeals, Ronald Evan Cooper seeks to overturn his four convictions for

intoxication manslaughter and his two convictions for aggravated assault with a




                                        1
deadly weapon.1 In a single issue, which is common to all six of Cooper’s briefs,

Cooper argues the trial court erred by admitting a record into evidence during his

trial that reveals he told an emergency-medical responder that “he sees a pain

management physician[.]” According to Cooper, the record made by the emergency

responder was (1) not relevant to proving he committed the crimes, (2) inadmissible

as character evidence to prove that he was acting in conformity with his character at

the time of the events at issue, and (3) more prejudicial than probative in proving

that he was guilty of the crimes at issue in his appeals. 2

      Because Cooper failed to establish the trial court erred, we affirm.

                                      Background

      All six of Cooper’s appellate briefs address a single evidentiary issue—

whether the trial court erred by admitting the emergency-medical responder’s




      1
        See Tex. Penal Code Ann. §§ 49.08, 22.02(a)(2) (West 2011). The same jury
heard all six of Cooper’s cases in one trial, Trial Court Cause Number 15-09-09857-
CR. On appeal, the clerk assigned Cooper’s six appeals six appellate numbers.
      2
        See Tex. R. Evid. 401 (defining relevant evidence); Tex. R. Evid. 403
(allowing a trial court to exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice); Tex. R. Evid. 404(b)
(providing that evidence of crimes, wrongs, or other acts is not admissible to prove
a person’s character).

                                            2
written report into evidence during his trial. For that reason, only a limited discussion

of the background facts is needed to explain our resolution of Cooper’s appeals.

      In late September 2015, while driving a car in the westbound lane on State

Highway 105, Cooper struck the rear bumper of the car traveling in front of him.

When the collision occurred, Cooper was on his way home after attending services

at his church. The lead car, which Cooper hit, had four occupants: Roland Sedlmeier,

Roland’s wife, and their two children. When Cooper hit the Sedlmeiers, the car they

were in crossed the highway and collided with an eastbound SUV. The head-on

collision between the Sedlmeiers’ car and the SUV injured the teenagers travelling

in the SUV. All four of the occupants in the Sedlmeiers’ car died at the scene.

      Police officers and paramedics came to the scene shortly after the two

collisions occurred. Three paramedics evaluated Cooper, who had no apparent

injuries. The paramedics treating Cooper, however, noticed that Cooper exhibited

signs consistent with intoxication. Several officers who came to the scene observed

the same signs. Cooper told one of the paramedics who treated him that “he took his

oxycodone 20mg and valium 10mg this morning at 5am.” Specimens of Cooper’s

blood, obtained with Cooper’s consent, showed that Cooper had oxycodone,

diazepam, desmethlydiazepam (the metabolite of diazepam), and gabapentin in his

system.

                                           3
      In December 2015, a grand jury indicted Cooper for the six crimes, on four

counts of intoxication manslaughter3 and on two counts of aggravated assault with

a deadly weapon. 4 Thirty-four witnesses testified in the guilt-innocence phase of

Cooper’s trial. A forensic toxicologist, called by the State, testified that the side

effects of the drugs found in Cooper’s system are consistent with the symptoms of

intoxication described by the witnesses who saw Cooper at the scene. When the State

offered the emergency-responder’s report into evidence, Cooper objected to it. In a

bench conference, conducted outside the presence of the jury, Cooper lodged two

objections to the report, claiming that (1) it was not relevant and (2) it was more

prejudicial than probative because it contains information revealing that he was

seeing a pain management doctor. In pertinent part, the narrative portion of the

emergency-responder’s report states:

             [Cooper] states that he has a history of MVA’s with significant
      injuries that cause chronic pain that he sees a pain management
      physician for: Dr. Resnik Saqer. [Cooper] states that he had a visit with
      his pain management doctor as well as his primary care doctor last week
      and got a “clean bill of health.”


      3
        See Tex. Penal Code Ann. § 49.08 (a person commits intoxication
manslaughter if he operates a motor vehicle in a public place while intoxicated and,
by reason of that intoxication, causes the death of another by accident or mistake).
      4
        See id. § 22.02(a)(2) (a person commits aggravated assault with a deadly
weapon if he intentionally, knowingly, or recklessly causes bodily injury to another
while using or exhibiting a deadly weapon).
                                         4
When the guilt-innocence phase ended, the jury found Cooper guilty on all six counts

of the indictment on which he was tried.

      In the punishment phase of the trial, Cooper asked that the trial court assess

his sentences. The State asked the trial court to require Cooper to serve his sentences

consecutively. 5 When pronouncing Cooper’s sentences, the court ordered Cooper to

serve twenty-year sentences on all six of his convictions. The judgments the trial

court signed include a cumulation order, which requires Cooper to serve his

sentences for intoxication manslaughter convictions consecutively. 6

                                 Standard of Review

      Cooper raises one issue in all six of his briefs. In the briefs, Cooper complains

the trial court erred by admitting a report containing his statement that he was seeing

a pain management doctor to prove he committed any of the crimes for which he

was tried. In his briefs, Cooper argues the statement is inadmissible because it was



      5
        See id. § 3.03(b)(1)(A) (West Supp. 2018) (providing that, if the defendant’s
convictions for intoxication manslaughter arose out of the same episode, the trial
court may order the sentences for the convictions to run concurrently or
consecutively).
      6
       Intoxication manslaughter and aggravated assault with a deadly weapon are
both second-degree felonies, and each of these crimes, generally, exposes the
defendant to a sentence of between two and twenty years in prison. See id. §§ 12.33,
49.08(b), 22.02(b) (West 2011).

                                           5
(1) not relevant to proving his guilt, (2) inadmissible as character evidence to prove

that he was acting in conformity with his character for taking drugs, and (3) more

prejudicial than probative because the statement allowed the jury to infer without a

sufficient basis that he abuses prescription drugs.7

      Appellate courts review challenges to a trial court’s ruling to admit or to

exclude evidence using an abuse-of-discretion standard.8 Under that standard, the

trial court does not abuse its discretion when admitting evidence unless the ruling

the trial court made “lies outside the zone of reasonable disagreement.” 9 The trial

court’s ruling admitting evidence will be upheld if it can be sustained under any

theory of law that applies in the defendant’s case. 10




      7
          See Tex. R. Evid. 401, 403, 404(b).
      8
         See Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018)
(Appellate courts “review the trial court’s decision to admit or exclude evidence, as
well as its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion
standard.”); Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016)
(“Appellate courts review a trial court’s ruling on the admissibility of Rule 404(b)
evidence for an abuse of discretion.”).
      9
       See Gonzalez, 544 S.W.3d at 370 (citing Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010)).
      10
           Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016).

                                           6
                                      Analysis

Relevance

      Cooper disputed that he was intoxicated when the collision occurred. During

the guilt-innocence phase of the trial, Cooper called a doctor who testified that the

drugs found in his system were within the therapeutic range required to treat the

condition for which he was being treated. Relying on the toxicology test, the doctor

testified that the levels of the medications found in Cooper’s system would not have

caused Cooper to lose the normal use of his faculties. The State’s theory at trial,

however, was that Cooper was intoxicated based on the combination of drugs found

in his system on the day of the collision.11 Under this theory, the State needed to

prove that even though the drugs in Cooper’s system were within a therapeutic range,

Cooper did not have the normal use of his faculties when the collision occurred.

      Generally, evidence is admissible when it is relevant to the facts that are at

issue in the dispute.12 Thus, evidence is relevant if “(a) it has any tendency to make


      11
         Tex. Penal Code Ann. § 49.01(2)(A) (West 2011) (defining intoxication as
“not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any other substance into the
body”).
      12
        See Tex. R. Evid. 402 (explaining that generally, relevant evidence is
admissible, while irrelevant evidence is not.)

                                          7
a fact more or less probable than it would be without the evidence; and (b) the fact

is of consequence in determining the action.” 13 The fact that Cooper was seeing a

pain management doctor explains why Cooper had access to the prescription drugs

detected in his system. In the context of the facts before the jury in Cooper’s case,

the trial court could have determined that Cooper’s ability to access the prescription

drugs provided a logical connection to explain why Cooper had prescription

medications in his system while he was on his way home from church.14

      While Cooper argues the State did not need evidence showing that he had

access to prescription drugs to prove its case, the test for relevancy does not require

that the evidence be necessary to proving a fact of consequence. 15 Instead, relevant

evidence need only make a fact material to the dispute more or less probable, it does

not need to establish the proposition.16 Because the trial court’s ruling to admit the

statement that Cooper challenges in his appeals falls within the zone of reasonable

disagreement, we conclude the trial court did not abuse its discretion by admitting



      13
           Tex. R. Evid. 401.
      14
           Gonzalez, 544 S.W.3d at 370.
      15
           Tex. R. Evid. 401.
      16
           Id.

                                          8
the statement Cooper made to the emergency responder, which she recorded in her

report.17

Inadmissible Extraneous-Act

      Next, Cooper argues that the trial court should have excluded the statement in

the report referencing the pain management doctor because it alluded to an

extraneous act, derogatory to his character, which he claims allowed the jury to infer

that he abuses prescription drugs. Generally, evidence of extraneous acts is

inadmissible for the purpose of proving “that on a particular occasion the person

acted in accordance” with a trait regarding the person’s character. 18 But to preserve

error, the defendant must make a timely objection and identify the legal basis for the

objection to allow the trial court to understand the grounds on which the objection

has been made. 19

      In its brief, the State argues that Cooper failed to preserve his objection to the

emergency-responder’s report under Rule 404(b). We agree. When the State offered

the emergency-responder’s report into evidence, Cooper made a lengthy objection


      17
            Gonzalez, 544 S.W.3d at 370.
      18
            Tex. R. Evid. 404(b)(1).
      19
       See Ford v. State, 305 S.W.3d 530, 533-34 (Tex. Crim. App. 2009);
Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

                                           9
to the portion of the report where it states he was seeing a pain management doctor.

While Cooper objected to the statement in the report on the grounds that this portion

of the report was irrelevant and “highly prejudicial,” the discussion between Cooper

and the trial court about the report shows the trial court did not appreciate Cooper’s

complaint to encompass Rule 404(b). Objections based on relevance or undue

prejudice are not sufficiently specific to allow the trial court to understand that the

party is also complaining the evidence is inadmissible under Rule 404(b).20 Cooper’s

objections, which addressed relevance and prejudice, failed to put the trial court on

notice that he was objecting to the report under Rule 404(b). We hold that Cooper

failed to preserve his Rule 404(b) argument for our review.

      Moreover, even had the trial court appreciated Cooper’s objection to

encompass the argument he raises in his brief, any alleged error in admitting the

report was cured when Cooper allowed substantially identical statements—that he

was seeing a pain management doctor—to be admitted without objection in other



      20
         See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (noting that
a general objection to relevance does not preserve error concerning a Rule 404
extraneous-act claim); Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—
Texarkana 2015, pet. ref’d) (holding that objections under Rules 401 and 403 did
not preserve the defendant’s complaint under Rule 404(b)); see also Tex. R. App. P.
33.1 (noting that to preserve error for appellate review, the complaining party must
show that he presented his complaint to the trial court in a timely request, objection,
or motion and that the trial court ruled on the request).
                                          10
testimony. Before admitting the emergency-responder’s report, the jury saw a video-

recording showing Cooper telling the emergency responder that he sees a pain

management doctor who gave him a prescription for oxycodone and valium. After

the trial court admitted the emergency-responder’s report, the jury saw a video-

recording showing Cooper telling a police officer that he sees a pain management

doctor. Cooper failed to object to either of these statements.

      “[I]t is well settled that an error in [admitting] evidence is cured where the

same evidence comes in elsewhere without objection.” 21 To preserve his right to

complain about the statement in the emergency-responder’s report, Cooper needed

to object each time the same types of statements were offered into evidence.22

Because the trial court admitted the video-recordings without objection, he cannot

now successfully complain that the trial court erred by admitting the same statement

in the emergency-responder’s report.




      21
         Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998).
      22
          Leday, 983 S.W.2d at 718 (explaining that, since Texas applies the “futility
rule,” a party must continue making futile objections on pain of waiver, even though
the trial court previously ruled the evidence admissible).
                                          11
More prejudicial than probative

      Lastly, Cooper contends the statement in the emergency-responder’s report

was more prejudicial than probative to proving any disputed issues in his trial. Under

Texas Rule of Evidence 403, trial courts may exclude relevant evidence if the

probative value of the evidence is substantially outweighed by the danger that it

would be unfairly prejudicial. When conducting 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.23

While it is possible for evidence to be more prejudicial than probative, “there is a

presumption that relevant evidence is more probative than prejudicial.” 24

      When the trial court considered Cooper’s objection to the report, Cooper

argued that including his statement had “zero probative value” and was prejudicial



      23
           Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
      24
           Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

                                          12
because including his statement would allow the jury to infer that he abused

prescription drugs. Before overruling Cooper’s objections, the trial court stated that

the trial court viewed the probative value of the evidence as “probably great.” The

court also mentioned that it was unsure whether the fact that someone was being

seen by a pain management doctor carried the negative connotation that Cooper

claimed.

      In deciding if the trial court abused its discretion by overruling Cooper’s

objection, we must determine whether the ruling is reasonable “‘in view of all

relevant facts.’” 25 Evidence that allowed the jury to infer that Cooper had access to

the medications before the collision supports the jury’s conclusion that Cooper

voluntarily took the medications before the collision occurred. The trial court could

reasonably have decided that the evidence at issue was more probative than

prejudicial in the context of the evidence before the jury. Thus, we conclude the trial

court’s ruling is within the zone of reasonable disagreement and is not reversible.

                                     Conclusion

      Having considered Cooper’s arguments, we overrule his sole issue and affirm

the trial court’s judgments.



      25
         Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006) (quoting
Santellan, 939 S.W.2d at 169).
                                          13
      AFFIRMED.


                                                 _________________________
                                                      HOLLIS HORTON
                                                           Justice

Submitted on September 12, 2018
Opinion Delivered March 27, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       14
