                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-09-00027-CR

JEREMY WAYNE MATTHEWS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                         From the 278th District Court
                             Leon County, Texas
                          Trial Court No. CM-08-101


                         MEMORANDUM OPINION


      A jury convicted Jeremy Wayne Matthews of theft and sentenced him to two

years in state jail. In a single issue, Matthews challenges the admission of evidence

under Rules of Evidence 403 and 404(b). We affirm.

                            FACTUAL BACKGROUND

      On the night of the offense, Gloria Richardson, a dispatcher for the Leon County

Sheriff’s Office, contacted Sheriff’s deputies when Matthews created a disturbance at

the Sheriff’s Department. Upon his arrival at the Department, Deputy Robert Kelly
encountered an agitated, nervous, and “jumpy” Matthews.            Although Matthews

smelled of alcohol, Kelly determined that he was not a danger to himself or others and

sent Matthews home with instructions not to return that night.

       Shortly thereafter, Jeffery Jones, an employee for Champion Technologies, heard

someone rattling the front gate to the truck yard. Jones noticed that the gate, which had

been locked, was open. Jones then saw a truck drive out of the gate.

       Back at the Sheriff’s Department, Richardson saw a large white truck beam its

lights into the lobby. Richardson saw the truck back away and pull up parallel to the

front doors. She saw Matthews exit the vehicle.

       Kelly returned to the Sheriff’s Department and saw a “large flatbed truck parked

parallel to the building.” Matthews stood between the building and the truck. He held

a large standing ashtray over his head as though he planned to throw it through the

window. Kelly positioned his vehicle to block the truck’s exit.

       Matthews climbed into the truck, cranked the engine, and drove towards Kelly’s

patrol car.    Two other patrol cars blocked Matthews’s exit.     Matthews backed up

towards Kelly. Kelly managed to open the driver’s side door of the truck and struggled

to remove Matthews from the truck. Kelly needed assistance from other officers to

force Matthews to the ground. Kelly testified that Matthews was attempting to flee.

       Sheriff’s deputies contacted Jones, who identified the missing truck as the one

Matthews drove at the Sheriff’s Department. Jones testified that, to his knowledge, no

one had given Matthews permission to drive the truck.




Matthews v. State                                                                  Page 2
                                        ANALYSIS

       In one issue, Matthews contends that the trial court abused its discretion by

allowing Kelly to testify to extraneous-offense evidence in violation of Rules of

Evidence 403 and 404(b).

       Outside the jury’s presence and before Kelly’s complained-of testimony, defense

counsel argued that Kelly’s testimony was more prejudicial than probative because it

introduced three extraneous offenses: evading arrest, resisting arrest, and aggravated

assault of an officer. He argued that testimony about Matthews driving towards Kelly

was irrelevant to theft of the truck.

       The State argued that the testimony established flight, which can be considered

as evidence of guilt, and is “part of the res gestae of the entire criminal episode to show

that he intended to deprive Champion of the vehicle.“ The trial court agreed that

Matthews’s actions were part of the transaction, “important to show proof of his intent

in this transaction regarding the truck,” and overruled Matthews’s objection.

       On appeal, Matthews argues that Kelly’s testimony is mere evidence of

“character conformity,” not evidence of intent to commit theft. The State responds that

Kelly’s testimony was admissible as same transaction contextual evidence.

        “Same-transaction contextual evidence results when an extraneous matter is so

intertwined with the State’s proof of the charged crime that avoiding reference to it

would make the State’s case incomplete or difficult to understand.” Prible v. State, 175

S.W.3d 724, 732 (Tex. Crim. App. 2005); see Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim.

App. 2000). “[E]vents do not occur in a vacuum, and the jury has a right to hear what


Matthews v. State                                                                    Page 3
occurred immediately prior to and subsequent to the commission of that act so that it

may realistically evaluate the evidence.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000).      Under Rule 404(b), “same transaction contextual evidence is

admissible ‘only to the extent that it is necessary to the jury’s understanding of the

offense.’” Wyatt, 23 S.W.3d at 25. Such necessity can exist either because: (1) several

offenses are so intermixed or connected as to form a single, indivisible criminal

transaction, such that in narrating the one, it is impracticable to avoid describing the

other; or (2) the same transaction contextual evidence tends to establish some

evidentiary fact, such as motive or intent. McDonald v. State, 148 S.W.3d 598, 602 (Tex.

App.—Houston [14th Dist.] 2004), aff’d by 179 S.W.3d 571 (Tex. Crim. App. 2005).

       That Matthews failed to cooperate and attempted to flee tends to establish an

evidentiary fact, i.e., Matthews’s intent to deprive Champion of the truck.           See

McDonald, 148 S.W.3d at 602; see also Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App.

1994) (“Evidence of flight is admissible as a circumstance from which an inference of

guilt may be drawn.”); Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998) (A

defendant’s intent “‘can only be determined from his words, acts, and conduct.’”); Yates

v. State, 941 S.W.2d 357, 366-67 (Tex. App.—Waco 1997, pet. ref’d); Howard v. State, No.

05-99-02144-CR, 2001 Tex. App. LEXIS 1817, at *14 (Tex. App.—Dallas Mar. 16, 2001, no

pet.) (not designated for publication).

       The probative value of this evidence is not “substantially outweighed by the

danger of unfair prejudice.”     TEX. EVID. R. 403. The State needed the evidence to

establish intent.   See Wesbrook, 29 S.W.3d at 115.       The complained-of testimony


Matthews v. State                                                                   Page 4
comprises a few pages of the record and is not of such a nature to impress the jury in an

irrational or indelible way.     Such evidence merely “sets the stage for the jury’s

comprehension of the whole criminal transaction.” Swarb v. State, 125 S.W.3d 672, 681

(Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). Thus, the trial court did not abuse

its discretion by admitting this portion of Kelly’s testimony.

       However, that Matthews drove towards Kelly or Kelly’s patrol car is not

“‘necessary to the jury’s understanding of the offense’” and is not relevant to intent.

Wyatt, 23 S.W.3d at 25; see McDonald, 148 S.W.3d at 602. Assuming without deciding

that admission of this evidence constitutes an abuse of discretion, the record contains

ample evidence of Matthews’s guilt. See Moreno v. State, 195 S.W.3d 321, 327-28 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d); see also Almaguer v. State, No. 14-06-00996-

CR, 2008 Tex. App. LEXIS 4319, at *11-12 (Tex. App.—Houston [14th Dist.] June 12,

2008, pet. ref’d) (not designated for publication). Any error in admitting this portion of

Kelly’s testimony is harmless.

       We overrule Matthews’s sole issue and affirm the trial court’s judgment.



                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 30, 2009
Do not publish
[CR25]




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