Opinion issued February 7, 2013.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ———————————
                              NO. 01-09-00226-CR
                           ———————————
                   CHARLES FRANKIE NIETO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 114th District Court
                           Smith County, Texas
                       Trial Court Case No. 4-95-95


               MEMORANDUM OPINION ON REHEARING

      Appellant Charles Frankie Nieto has filed a motion for rehearing of our

opinion issued on October 18, 2012. The State did not file a response to this

motion. We grant rehearing, withdraw our opinion of October 18, 2012, issue this

opinion in its place, and vacate our judgment of October 18, 2012.
      In 1995, a jury found Nieto guilty of the murder of his cousin, Gilbert Nieto,

and sentenced him to life imprisonment.           Nieto appealed his conviction and

asserted three points of error: (1) that the trial court erred in denying his Batson

challenge to the State’s use of its peremptory strikes to exclude five African-

American members from the jury panel; (2) that the trial court abused its discretion

by admitting evidence that Nieto brought a gun to a bootlegger’s house shortly

before the charged offense; and (3) that the trial court abused its discretion by

admitting evidence that Nieto was in jail shortly before the charged offense. On

original submission to this court,1 we concluded that the trial court erred in denying

his Batson challenge as it related to one prospective juror, Gregory Maudlin. See

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986); Nieto v. State, No. 01-09-

00226-CR, 2010 WL 5117349, at *6 (Tex. App.—Houston [1st Dist.] Dec. 16,

2010) (mem. op., not designated for publication), rev’d, 365 S.W.3d 673 (Tex.

Crim. App. 2012). We reversed the conviction and remanded to the trial court

without considering Nieto’s Batson challenges to the four other African-American
1
      In 1997, the Twelfth Court of Appeals affirmed Nieto’s conviction, but criticized
      the adequacy of appellate counsel’s briefing. Nieto v. State, No. 12-95-00204-CR,
      (Tex. App.—Tyler May 29, 1997, no pet). Nieto then filed an application for a
      writ of habeas corpus with the Texas Court of Criminal Appeals, alleging
      ineffective assistance of counsel. The Court of Criminal Appeals remanded the
      application to the trial court for a hearing and then granted permission for Nieto to
      appeal his conviction within thirty days of that order. Ex parte Nieto, No. AP-76,
      090, 2009 WL 256525, at *1 (Tex. Crim. App. Feb. 4, 2009). Although this case
      was originally appealed to the Twelfth Court of Appeals, it was eventually
      transferred to this court by the Texas Supreme Court pursuant to its docket
      equalization efforts.
                                            2
venire members who were struck by the State. The Texas Court of Criminal

Appeals reversed our judgment, concluding that the trial court did not err in

denying Nieto’s Batson challenge to Maudlin. Nieto v. State, 365 S.W.3d 673, 681

(Tex. Crim. App. 2012). The Court of Criminal Appeals remanded the case to this

Court for consideration of Nieto’s remaining issues: (1) whether the trial court

clearly erred by finding that the State’s reasons for exercising its peremptory

strikes against the other four African-American venire members were race-neutral

and were not mere pretext for purposeful discrimination; (2) whether the trial court

abused its discretion by admitting evidence that Nieto brought a gun to a

bootlegger’s house shortly before the offense, and (3) whether the trial court

abused its discretion by admitting evidence that Nieto was in jail shortly before the

offense. Finding no reversible error, we affirm.

                                   Background

      On January 29, 1995, police responded to a 911 call informing them of a

shooting. Upon arriving at the scene, the police found broken glass, blood, and a

firearm. Officers were able to locate the vehicle involved in the incident at a

nearby hospital. The officers found a substantial amount of blood on the driver’s

side of the vehicle, and the driver’s side window was missing.

      Dora Moralez was a passenger in the backseat of the car at the time of the

shooting and was the person who placed the 911 call. She informed police officers

                                         3
that Nieto, who was a passenger in the car, had shot his cousin Gilbert, who was

driving the car just before the shooting. When questioned at the hospital, Nieto

told an officer that an unknown person had approached the car and shot Gilbert

from the driver’s side of the vehicle. Nieto later changed his account and told the

officer that the person had shot through the passenger’s side window.

      Officers arrested Nieto and conducted a videotaped interview of him.

During the interview, Nieto admitted shooting Gilbert but claimed it was an

accident and that he had intended to point the pistol in front of Gilbert, not at him.

      During trial, Moralez testified that before the shooting she, Nieto, and

Gilbert drove to a bootlegger’s house. Nieto left the car and went to speak with the

bootlegger, while Moralez and Gilbert remained in the car. Moralez saw that Nieto

had a gun behind his back while he was speaking with the bootlegger. Nieto

dropped the gun on the ground, and the bootlegger took a few steps back. Nieto

picked up the gun, reentered the car on the passenger’s side, placed the gun on his

lap, and told Gilbert that he had “dropped the gun.”

      As they were leaving the bootlegger’s house, Gilbert told Nieto to “quit

messing around and put the gun up.” Nieto told Gilbert to shut up or he would

shoot him, to which Gilbert responded, “Well, shoot me.” Nieto then told Gilbert

to stop the car. After a few minutes, Moralez heard Nieto handling the gun and

saw him pull back the slide on the gun to chamber a round. Morlaez saw Nieto

                                           4
place the gun to Gilbert’s head and fire. After Nieto fired the shot, Moralez got out

of the car and ran to a nearby store to call the police. A pathologist who performed

the autopsy on Gilbert also testified and told the jury that the muzzle of the gun

was in contact with Gilbert’s skin when it was discharged.

       Lisa Nieto, Gilbert’s sister and Nieto’s cousin, also testified at trial. Lisa

explained that Nieto had been arrested and put in jail about two weeks before the

shooting. According to Lisa, Nieto was mad at Gilbert because Gilbert had not

bailed Nieto out of jail. She heard the two argue about it multiple times in the days

before the shooting. Lisa said that Nieto was still angry with Gilbert on the day of

the shooting.

       In his defense, Nieto presented the testimony of his aunt, Nancy Nieto, to

rebut the State’s evidence of motive. Nancy testified that from the time of Nieto’s

release from jail until Gilbert’s death, she did not observe any animosity between

Nieto and Gilbert. She further testified that she never heard Nieto accuse Gilbert

of failing to help Nieto get out of jail.

       On appeal, Nieto contends that the trial court clearly erred by finding that

the State’s proffered reasons for exercising its peremptory strikes against four

African-American venirepersons were race-neutral and were not mere pretext for

purposeful discrimination. He also argues that the trial court abused its discretion




                                            5
by admitting Moralez’s testimony that Nieto brought a gun to a bootlegger’s house

and by admitting Lisa’s testimony that Nieto was previously in jail.

                                 Batson Challenges

      Sixty people were summoned for jury selection in this case. During the

morning session, the trial court conducted its own voir dire of the venire. Because

District Attorney Jack Steen, Jr., the State’s lead prosecutor, was unable to attend

the morning session, David Dobbs, the chief felony prosecutor for Smith County,

attended and observed the venire during the morning session. Dobbs did not attend

the afternoon session of jury selection, which was conducted by Steen, nor did

Dobbs participate in the remainder of the trial.

      At the conclusion of the voir dire examination, the trial court granted six

strikes for cause, leaving fifty-four eligible venire members. The State exercised

five of its ten peremptory strikes against venire members Lewis Thompson, W.T.

Hart, Gregory Maudlin2, Patrick Brooks, and Tommie Taylor, the only five

African-Americans within the strike-zone. A twelve-person jury was empaneled,

which consisted of eleven white persons and one Hispanic male (Nieto is a

Hispanic male). Nieto challenged the use of the State’s peremptory strikes under



2
      As noted, the Court of Criminal Appeals has already considered Nieto’s Batson
      challenge as it relates to venire member Gregory Maudlin. Therefore, we will
      review Nieto’s arguments as they relate to the State’s strikes against the remaining
      four venire members.
                                           6
Batson v. Kentucky, 476 U.S. 79, 109 S. Ct. 1712 (1986), asserting that the State

struck the five African-American venire members based on their race.

      The trial court evaluated Nieto’s Batson challenge under the required three-

step process. First, the trial court found Nieto had made a prima facie showing of

race discrimination based on the number of peremptory strikes the State used to

strike minority prospective jurors, the composition of the panel before and after the

strikes, and Nieto’s race. The trial court then explained that it was the State’s

burden to present race-neutral reasons for exercising its peremptory strikes as it

did. Testifying in narrative form, Skeen explained his rationale for striking each

individual. With respect to Thompson, Skeen testified that he struck Thompson

because the State’s jury card indicated Thompson previously served on a

“horrible” felony DWI jury where the defendant had two prior DWI convictions.

According to Skeen, Thompson voted to acquit the defendant in that case despite

the fact that the State viewed it as a “good” case for the prosecution.

      Skeen testified the State used a peremptory strike against Hart based on

Hart’s criminal history. Hart was prosecuted for and pleaded guilty to a liquor

violation in Smith County.      According to Skeen, Hart failed to disclose this

criminal history when Skeen asked the venire as a whole whether they or anyone in

their immediate family had ever been charged or arrested for a criminal offense.




                                          7
Because Hart had a criminal history and failed to disclose it when questioned,

Skeen struck him from the jury.

      Next, Skeen testified that he used a peremptory strike on Brooks because

Dobbs noted that Brooks looked upset and stared at Dobbs when he walked into

the courtroom. Additionally, Skeen testified that Brooks has the same first and last

name as, and therefore may be related to, a defendant whom Skeen had previously

prosecuted for murder. Therefore, Skeen explained that the reasons for striking

Brooks were based on Dobbs’ notes concerning Brooks’ demeanor during voir dire

and the potential relationship between Brooks and a murder defendant whom

Skeen had prosecuted.

      Finally, with regard to Taylor, Skeen testified that she responded during voir

dire that she had been convicted of alcohol possession. Skeen testified that he had

a criminal history card for Taylor that reflected a conviction for a liquor violation

and that this was the basis for his peremptory strike against Taylor.

      Nieto cross-examined Skeen about whether Skeen questioned any of the

venire members individually about the basis for his concerns, to which Skeen

responded he did not. Nieto did not offer any other evidence, but argued to the

trial court that Skeen failed to sufficiently question the venire members. The trial

court found that the reasons offered by the State were sufficient to show facially

race-neutral reasons for the exercise of its peremptory strikes and Nieto failed to

                                          8
prove purposeful discrimination. We now consider Nieto’s Batson challenges as

they relate to venire members Thompson, Hart, Brooks, and Taylor.

A.    Applicable Law

      In Batson v. Kentucky, the United States Supreme Court held that the Equal

Protection Clause prohibits the State from exercising its peremptory strikes based

only on the potential juror’s race. 476 U.S. at 89, 106 S. Ct. at 1719. When a

defendant challenges the State’s use of a peremptory strike based on Batson, the

trial court conducts a three-step process to evaluate the Batson claim. Hernandez

v. New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1865 (1991). First, the defendant

must make a prima facie showing of racial discrimination. Batson, 476 U.S. at 95–

97, 106 S. Ct. at 1722–23. Once the defendant does so, the burden of production

shifts to the State to articulate a race-neutral explanation for the strike. Id. at 97–

98, 106 S. Ct. at 1723–24. The race-neutral explanation articulated by the State

does not have to be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765,

768, 115 S. Ct. 1769, 1771 (1995). Rather, “the issue is the facial validity of the

prosecutor’s explanation[, and] [u]nless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.” Id.

(quoting Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866). Finally, the trial court

then must determine if the defendant has established purposeful discrimination.

Batson, 476 U.S. at 98, 106 S. Ct. at 1724. The defendant bears the burden to

                                          9
prove by a preponderance of the evidence that the State’s reasons for the

peremptory strike are merely a pretext for purposeful racial discrimination.

Thomas v. State, 209 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

         A trial court’s ruling on a Batson challenge must be sustained unless it is

clearly erroneous. Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207

(2008). In determining whether the State’s proffered reason is pretextual, both the

trial court and the appellate court must focus on the genuineness of the asserted

race-neutral reason instead of its reasonableness. See Gibson v. State, 144 S.W.3d

530, 533–34 (Tex. Crim. App. 2004). We defer to the trial court’s ruling on the

issue of discriminatory intent because these findings largely turn on the trial

court’s evaluation of the demeanor and credibility of the attorney who exercises

the peremptory challenge. Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869; see

also Gibson, 144 S.W.3d at 534 (recognizing that clearly erroneous standard is

highly deferential standard because trial court is in best position to determine

whether prosecutor’s facially race-neutral explanation for peremptory strike is

genuinely race-neutral). Finally, in applying the clearly erroneous standard, we

review the record, including the voir dire, the racial makeup of the venire, the

prosecutor’s race-neutral explanations, and the appellant’s rebuttal and impeaching

evidence. Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992).

                                          10
B.    Analysis

      As explained in more detail above, the State offered the following reasons

for striking these four venire members: (1) Thompson’s prior participation on a

“horrible” jury that acquitted a defendant in a felony DWI case despite the State’s

belief that the prosecution’s case was strong; (2) Hart’s failure to disclose his prior

conviction for a liquor violation when asked during voir dire; (3) Brooks’s stare

and upset facial expression at Dobbs when Dobbs walked into the courtroom, and

the fact that Brooks had the same first and last name as a murder defendant whom

Skeen had prosecuted; and (4) Taylor’s prior conviction for a liquor violation,

which she reported to the court during voir dire.

      The Fifth Court of Appeals and the Fourteenth Court of Appeals have held

that a bad record during prior jury service is a race-neutral explanation for striking

a prospective juror. See Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.—Dallas

1999, pet. ref’d); Webb v. State, 840 S.W.2d 543, 545–46 (Tex. App.—Dallas

1992, no pet.); Levy v. State, 749 S.W.2d 176, 178 (Tex. App.—Houston [14th

Dist.] 1988, pet. ref’d). Additionally, this Court has held that the failure of a

prospective juror to fully disclose his criminal history or record is a race-neutral

reason for the exercise of a peremptory strike. See Moore v. State, 265 S.W.3d 73,

83 (Tex. App.—Houston [1st Dist.] 2008, pet. dism’d); see also Bolden v. State,

923 S.W.2d 730, 734 (Tex. App.—Tyler 1996, no pet.) (holding State’s reason for

                                          11
exercising peremptory strike based on prospective juror’s criminal record was

race-neutral); Alexander v. State, 919 S.W.2d 756, 765 (Tex. App.—Texarkana

1996, no pet.) (holding that striking prospective juror because his or her friend or

family member has criminal history is race-neutral).

      Further, in this very case, the Court of Criminal Appeals found that the

reasons offered by the State for its use of a peremptory strike against Maudlin—

Maudlin’s demeanor (glaring) during voir dire coupled with the potential family

connection between Maudlin and a known criminal family, several members of

which had been prosecuted by the district attorney’s office—were race neutral and

not pretextual. See Nieto, 365 S.W.3d at 679–81; see also Sterling v. State, 830

S.W.2d 114, 118–19 (Tex. Crim. App. 1992) (finding no Batson violation after

considering entire voir dire record, where reasons offered by State for peremptory

strike included possibility that potential juror was related to individuals who had

been prosecuted by district attorney’s office, potential juror himself had been

prosecuted by district attorney’s office, and potential juror’s opposition to death

penalty). Finally, the Court of Criminal Appeals has held that the demeanor of a

potential juror is a valid reason to exercise a peremptory strike. See Yarborough v.

State, 947 S.W.2d 892 (Tex. Crim. App. 1997). Therefore, we conclude that the

trial court did not clearly err in determining the State had offered facially race-

neutral reasons for its peremptory strikes against these four venire members.

                                        12
      Despite these authorities, Nieto contends his Batson challenge should

succeed based on: (1) the prosecutor’s failure to question individually each of these

four venire members; and (2) the fact that the State struck 83% of the minority

jurors in the strike zone.

      The Court of Criminal Appeals has set forth a nonexhaustive list of factors

that may be considered to determine whether the State’s reasons for a peremptory

strike are an impermissible pretext for discrimination: (1) the reason given for the

peremptory challenge is not related to the facts of the case; (2) lack of questioning

to the challenged juror or a lack of meaningful questions; (3) disparate treatment—

persons with the same or similar characteristics as the challenged juror were not

struck; (4) disparate examination of members of the venire—questioning a

challenged juror so as to evoke a certain response without asking the same question

of other panel members; and (5) an explanation based on a group bias where the

group trait is not shown to apply to the challenged juror specifically. Whitsey v.

State, 796 S.W.2d 707, 713–14 (Tex. Crim. App. 1989). However, the Court of

Criminal Appeals has also recently explained that the lack-of-individual-

questioning factor should not be given dispositive weight because it was only one

of several factors articulated in Whitsey. See Grant v. State, 325 S.W.3d 655, 660–

61 (Tex. Crim. App. 2010). The Court in Grant stated that “a lack of questioning

to flesh out a written response has significantly less persuasive value when

                                         13
prospective jurors are being questioned together,” especially under the usual time

constraints of voir dire which limit a party “in its ability to ask an individual venire

member on whom the party may exercise a strike—let alone all such venire

members—about specific” responses. Id. at 661.

      Here, like in Grant, Nieto argues that these venire members should have

been questioned further. However, the Court of Criminal Appeals considered, and

rejected, this same argument when Nieto raised it in reference to Maudlin. The

Court of Criminal Appeals, recognizing that the lack of individual questioning is

less significant when jurors are questioned together, as they were in this case,

explained that “Batson leaves room for the State to exercise peremptory strikes

based on a ‘hunch’ or past experience, as long as racial discrimination is not the

motive.” Nieto, 365 S.W.3d at 679.          More importantly, the credibility of the

reasons offered by the State must be judged in light of the entire voir dire record

and other circumstances. See id. (citing Miller-El v. Dretke, 545 U.S. 231, 252,

125 S. Ct. 2317, 2331–32 (2005)).           The Court of Criminal Appeals, after

considering the voir dire record, the statistics, and any evidence of disparate

treatment, concluded that the reasons offered for striking Maudlin—potential

family connection and demeanor—were racially neutral and were not pretext for

discrimination.    Id. at 679–681.      Likewise, we conclude here that lack of

questioning alone is not dispositive of the issue of pretext. While it is possible that

                                          14
further questioning by the prosecutor may have helped strengthen his reasons for

exercising the strikes, the mere fact that the prosecutor did not pursue further

questioning does not render his offered reasons pretextual.         See Vargas, 838

S.W.2d at 556. Instead, we must consider the entire record of voir dire and the

other circumstances surrounding the strikes, including statistics and whether there

was any evidence of disparate treatment. See Nieto, 365 S.W.3d at 679.

      This brings us to Nieto’s second contention: pretext is shown by the fact that

the State exercised its peremptory strikes to exclude 83% of minorities, and 100%

of African-Americans, from the jury. Whether statistics indicate a disproportionate

use of peremptory strikes to exclude a minority is one factor that may be

considered to determine whether the reasons offered for the strikes are pretextual.

See Miller-El, 45 U.S. at 241, 125 S. Ct. at 2325. In Miller-El, the United States

Supreme Court held that the State’s use of its peremptory strikes to exclude 91% of

eligible African-Americans from the jury constituted disproportionate use of

strikes against minorities and, when viewed in light of the other circumstances of

the case,3 demonstrated that the reasons offered for the strikes were mere pretext



3
      The Supreme Court also considered the prosecution’s shuffling of the venire panel
      after African-American venire members appeared at the front of the panel, the
      State’s use of contrasting voir dire questions posed to African-American and non-
      African-American jurors on capital punishment and minimum acceptable
      sentences, and the use of a manual that encouraged a systematic policy of
      excluding African-Americans from juries that was used by the district attorney’s
                                         15
for racial discrimination. Id. at 253, 125 S. Ct. 2335. However, the Supreme

Court considered evidence of side-by-side comparisons of African-American

panelists who were struck and white panelists who were allowed to serve “[m]ore

powerful than these bare statistics.” Id. at 241, 125 S. Ct. at 2325.

      Here, as in Miller-El, a large percentage of minorities was struck by the

State. However, the record does not reveal disparate treatment of minority and

nonminority prospective jurors. Rather, the record demonstrates that although the

State struck Hart and Taylor because of their personal criminal records and Brooks

because of his potential relation to a murder defendant, the State also struck one

white venire member who was convicted of vehicular manslaughter and two other

white venire members who had close family members with criminal convictions.

There is no evidence in the record that a nonminority venire member had a

negative demeanor or had previously served on what the State considered to be a

“horrible” jury but was not struck.

      Furthermore, as the party making the Batson challenge, Nieto had the burden

to show that the explanations given by the State for the strikes were merely pretext

for purposeful discrimination. See Johnson v. State, 68 S.W.3d 644, 649 (Tex.

Crim. App. 2002) (failure to offer any rebuttal to proffered race-neutral

explanation may be fatal to Batson claim). Nieto briefly cross-examined, but only

      office, as evidence of racial discrimination. See Miller-El, 45 U.S. at 253–64, 125
      S. Ct. at 2332–40.
                                          16
to inquire whether Skeen pursued further questioning of any of these prospective

jurors or whether others had observed Brooks staring at Dobbs. And Nieto did not

present the trial court with any comparisons between unchallenged white venire

members and the African-American venire members who were struck. In sum,

Nieto failed to put on evidence to rebut the State’s proffered race-neutral

explanations for its strikes.

       After considering the entire voir dire transcript, the racial makeup of the

venire, the prosecutor’s race-neutral explanations, and the appellant’s rebuttal and

impeaching evidence, we conclude that the record supports the trial court’s ruling

and that the trial court did not clearly err in finding that the reasons offered by the

State for striking Thompson, Hart, Brooks, and Taylor were race-neutral and not

mere pretext for purposeful racial discrimination. Therefore, we overrule Nieto’s

first point of error.

                                Evidentiary Challenges

A.     Standard of Review

       We review a trial court’s decision to admit evidence for an abuse of

discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);

Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A trial court abuses its discretion only if its decision is “so clearly wrong as

to lie outside the zone within which reasonable people might disagree.” Taylor v.


                                          17
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is

correct on any theory of law applicable to the case, we will uphold the decision.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). “When a trial

court further decides not to exclude the evidence, finding that the probative value

of the evidence is not outweighed by the danger of unfair prejudice, this decision

too shall be given deference.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003).

B.    Admissibility of Moralez’s testimony

      In his second point of error, Nieto argues that the trial court abused its

discretion in admitting Moralez’s testimony that he took a gun to a bootlegger’s

house shortly before the shooting. At trial, Nieto objected to the admissibility of

the portion of Moralez’s testimony in which she recounted Nieto’s exchange with

the bootlegger. According to Nieto, this testimony was inadmissible under Texas

Rule of Evidence 403 because its probative value was substantially outweighed by

its prejudicial effect. In response, the State argued this evidence was admissible as

same transaction contextual evidence. The State also maintained that this evidence

showed Nieto had control of the murder weapon in the time leading up to the

shooting. The trial court concluded that Moralez’s testimony was probative on the

issue of whether, immediately before the shooting, Nieto had knowledge that the

gun was in operating order and possibly may have had a bullet chambered at that

                                         18
time. The trial court overruled Nieto’s objection, determining that the probative

value of this testimony outweighed any prejudicial effects.

         On appeal, Nieto maintains that the evidence was not probative as to the

issue of intent or knowledge that the gun was loaded and deadly because Moralez’s

testimony contains no evidence that Nieto knew the weapon was loaded at the time

of his encounter with the bootlegger. In fact, Nieto asserts, the evidence shows

that Nieto chambered a round moments before shooting Gilbert, making irrelevant

Moralez’s testimony about what Nieto did or knew while at the bootlegger’s house.

Nieto contends that the State had no need to introduce the evidence of the events at

the bootlegger’s house other than to prejudice the jury. Therefore, according to

Nieto, the “prejudicial effect of suggesting to the jury that Appellant was a violent

man who associated with bootleggers” substantially outweighed any probative

value.

         Under Rule 403, relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury . . . .” TEX. R. EVID. 403. In conducting this balancing test,

courts should consider the following: (1) the inherent probative force of the

proffered 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)

                                          19
any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate its probative force, and (6) 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).

      Whether erroneous admission of evidence constitutes reversible error is

governed by Texas Rule of Appellate Procedure 44.2(b), which applies to non-

constitutional errors in criminal cases. See TEX. R. APP. P. 44.2(b); Cruz v. State,

238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). The

judgment will be reversed only if the error affected an appellant’s substantial

rights. See Kibble v. State, 340 S.W.3d 14, 20 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). An error affects an appellant’s substantial rights “when the error

has a substantial and injurious effect or influence in determining the jury’s

verdict.” Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997);

James v. State, 264 S.W.3d 215, 222 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d). An error that did not influence the jury or had but a slight effect on the jury

is not reversible. McRae v. State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

App. 2001)). In making the determination of whether appellant’s substantial rights

were affected, the factors we consider include the nature of evidence supporting

                                          20
the verdict, the character of the alleged error, and how it might be considered in

connection with other evidence in the case. Id. (citing Bagheri v. State, 119

S.W.3d 755, 763 (Tex. Crim. App. 2003)). We should also consider whether the

State emphasized the error, whether the erroneously admitted evidence was

cumulative, and whether it was elicited from an expert. Id.

      Here, even assuming the trial court erred in admitting evidence of Nieto’s

encounter with the bootlegger, we nevertheless conclude the error was harmless.

The disputed issue at trial concerned whether the shooting was intentional or

accidental, and the nature of the evidence supporting the jury’s verdict was strong.

Moralez, an eyewitness to the shooting, testified that Nieto and Gilbert were

arguing when Nieto threatened to shoot Gilbert and told him to stop the car.

According to Moralez’s testimony, Nieto pulled the slide back on the gun, which

chambered a round, placed the gun to Gilbert’s head, and fired it.               The

pathologist’s testimony that the gun was in contact with Gilbert’s skin when it was

fired confirmed Moralez’s account of the shooting. This testimony and physical

evidence directly contradicts Nieto’s inconsistent accounts to police, including his

final account in which he claimed that he pointed the gun in front of Gilbert, not at

him. The allegedly improperly admitted evidence—that Nieto brought the gun to

his encounter with the bootlegger—is insignificant in comparison and, if it

influenced the jury at all, would have had but a slight effect. McRae, 152 S.W.3d

                                         21
at 744. Although this evidence was not cumulative and was discussed in the

State’s closing argument, it was elicited from a lay witness, not an expert. See id.

After examining the record as a whole, we cannot say that the admission of

Moralez’s testimony, if erroneous, affected Nieto’s substantial rights. See id. at

744–45 (finding that although evidence of improperly administered field sobriety

test was erroneously admitted, that error had little effect on jury’s verdict and that

appellant’s conviction would have been certain without that erroneously admitted

evidence in light of abundance of evidence presented by State on issue of

appellant’s intoxication). Because Nieto’s substantial rights were not affected, we

conclude that any alleged error in admitting evidence about Nieto’s exchange with

the bootlegger was harmless and must, therefore, be disregarded. See id.; TEX. R.

APP. P. 44.2.

      We overrule Nieto’s second point of error.

C.    Admissibility of Lisa’s testimony

      In his third point of error, Nieto argues that the trial court abused its

discretion in allowing Lisa to testify that, in the days before the shooting, Nieto

was angry with Gilbert for not bailing him out of jail. Nieto objected to this

testimony, arguing that this was extraneous-offense evidence and that the State had

not given the required notice under Texas Rule of Evidence 404(b) of its intent to

use it. Nieto further maintained that this evidence was more prejudicial than

                                         22
probative and, therefore, was inadmissible under Texas Rule of Evidence 403. The

trial court allowed the evidence to be admitted, but excluded all evidence relating

to the reason Nieto was in jail.

      1.     Rule 404(b)

      Nieto contends that Lisa’s testimony was evidence of an extraneous offense,

and, as such, the State was required under Rule 404(b) to notify Nieto in advance

of trial that it planned to introduce the evidence. Because the State only notified

Nieto about the evidence on the day of trial, Nieto contends that this evidence was

inadmissible under Rule 404(b).       In response, the State maintains that the

testimony did not constitute evidence of an extraneous offense, and therefore the

Rule 404(b) notice requirement does not apply, because Lisa only mentioned the

fact that Nieto was in jail without discussing the reason for his imprisonment.

      Rule 404(b) allows evidence of “other crimes, wrongs or acts” to be

admitted for purposes such as “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident,” and if “reasonable

notice is given in advance of trial of intent to introduce such evidence.” TEX. R.

EVID. 404(b). To constitute an extraneous offense, the evidence must show a crime

or bad act and the defendant’s connection to it. Nguyen v. State, 177 S.W.3d 659,

666 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Evidence of an extraneous

offense necessarily involves evidence of prior criminal conduct by the defendant.

                                         23
Id. “If the evidence fails to show that an offense was committed or that the

accused was connected to the offense, then evidence of an extraneous offense is

not established.” Id. at 667 (citing McKay v. State, 707 S.W.2d 23, 32 (Tex. Crim.

App. 1985)).

       Under Rule 404(b), the admissibility of extraneous-offense evidence is

conditioned on the State’s compliance with the notice provision of Rule 404(b).

Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Because this

notice requirement is a rule of evidence admissibility, “it is error to admit Rule

404(b) evidence when the State has not complied with the notice provision of Rule

404(b).”   Id.   However, because the notice requirement does not relate to

substantive admissibility of evidence, “[t]he lack of notice does not render the

evidence inherently unreliable, but instead raises a question about the effect of

procedural noncompliance.” Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—

Austin 2002, no pet.)     Such an error is not reversible unless the erroneous

admission of evidence “had a substantial and injurious effect or influence in

determining the jury’s verdict.” King, 953 S.W.2d at 271; see also TEX. R. APP. P.

44.2(b) (“Any other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”).

      The purpose of the Rule 404(b) notice provision is to prevent surprise and to

allow the defendant to prepare a defense. See Hayden v. State, 66 S.W.3d 269, 272

                                         24
(Tex. Crim. App. 2001) (purpose of Rule 404(b) notice requirement is to prevent

surprise); see also Castle v. State, No. 03-09-00241-CR, 2010 WL 3370057, at * 3

(Tex. App.—Austin Aug. 25, 2010, no pet.) (mem. op., not designated for

publication) (purpose of Rule 404(b) notice provision is to enable the defendant to

prepare to meet the evidence of extraneous offenses). As explained by the Texas

Court of Criminal Appeals, “[w]hen an appellate court determines that a jury’s

verdict was substantially influenced by the improper admission of substantively

inadmissible Rule 404(b) evidence, that influence on the jury’s verdict will always

be ‘injurious’ since there was no proper purpose for the jury to consider the

evidence.” Hernandez, 176 S.W.3d at 825 (emphasis added). However, when

otherwise substantively admissible Rule 404(b) evidence is improperly admitted

due to the State’s lack of compliance with Rule 404(b)’s notice requirements, “the

error in admitting this evidence may have had a substantial effect or influence on

the jury’s verdict, but it cannot be said that this effect or influence was ‘injurious’

if the defendant was not surprised by the evidence.” Id. Stated differently, we

must “consider in our harm analysis whether the lack of notice surprised the

defendant or adversely affected his trial strategy.” Castle, 2010 WL 3370057, at

*3 (citing Hernandez, 176 S.W.3d at 825–26); see also Guillory v. State, No. 13-

10-00545-CR, 2011 WL 4996465, at *5 (Tex. App.—Corpus Christi Oct. 20,

2011, pet. ref’d) (mem. op., not designated for publication) (“[T]o show harm

                                          25
flowing from the lack of notice, an appellant must show both that he was surprised

and show how his defense strategy would have been different.”).

        Assuming that Lisa’s testimony concerning Nieto’s prior incarceration was

extraneous-offense evidence; that the State failed to give Nieto proper notice under

Rule 404(b); and that the trial court therefore erred in admitting this testimony, we

conclude that any alleged error did not affect Nieto’s substantial rights. It is clear

that, if not for the State’s alleged failure to comply with the notice requirement,

this evidence would have been admissible under Rule 404(b) to show Nieto’s

motive for shooting Gilbert.4 Because this evidence would have been admissible

but for the State’s alleged violation of the notice requirement, we cannot find that

any effect or influence that this testimony had on the jury’s verdict was injurious

unless Nieto was surprised by the evidence or the lack of notice adversely affected

his trial strategy. See Hernandez, 176 S.W.3d at 825–26.

      The record reflects that defense counsel informed the trial court that he was

surprised by this testimony and that he was not given sufficient time to prepare for

its admission.   He then requested a continuance to obtain witnesses, such as

Nieto’s aunt, Nancy Nieto, and uncle, Larry Castanay, who were with both Nieto

and Gilbert in the days before and the day of the shooting, to rebut Lisa’s

4
      Nieto does not challenge the substantive admissibility of this evidence under Rule
      404(b). His only contention is that the trial court erroneously admitted this
      evidence because the State failed to provide the requisite notice under Rule
      404(b).
                                          26
testimony regarding Nieto’s motive for shooting Gilbert. Rather than grant a

continuance, the trial court, noting the extraordinary circumstances, excluded

Nancy, who had been sitting in the courtroom throughout the trial, from the

application of the Rule. The trial court then permitted defense counsel to question

Nancy during a recess and to call Nieto’s uncle at his workplace to determine

whether his testimony would be helpful and necessary.

      After returning from the recess, defense counsel informed the court that he

had enough time to speak with Nancy and felt that her testimony would “cover the

whole area that her husband’s would have and perhaps more.” He then decided to

proceed to introduce Nancy as a defense witness. Nancy testified that she saw

Nieto and Gilbert together on a regular basis and that Nieto and Gilbert were

staying at her house the weekend of the shooting. Nancy testified that from the

time of Nieto’s release from jail until Gilbert’s death, she did not observe any

animosity between Nieto and Gilbert. She further testified that she never heard

Nieto accuse Gilbert of failing to help Nieto get out of jail.

      Although Nieto initially may have been surprised by the introduction of

Lisa’s testimony, he has not shown how his defense strategy might have been

different had the State timely notified him of its intent to offer Lisa’s testimony at

trial, or how his defense was “injuriously” affected by the State’s failure to provide

reasonable notice. Nieto was given the opportunity by the trial court to speak to

                                          27
potential rebuttal witnesses, the exact witnesses he requested, and eventually called

Nancy, whose testimony rebutted the State’s evidence of motive. Given that Nieto

was given the opportunity to—and did—develop evidence to rebut Lisa’s

testimony, we conclude that the alleged failure of the State to provide reasonable

notice of the extraneous offense did not affect Nieto’s substantial rights. See

Hernandez, 176 S.W.3d at 825–26.

      2.     Rule 403

       Nieto further asserts that Lisa’s testimony that he was in jail was

inadmissible under Rule 403 because its prejudicial effects substantially

outweighed its probative value. According to Nieto, the evidence that he had been

in jail “encouraged the jury to decide the case on the improper basis that he was a

criminal.” Nieto also argues that the State had little need for this evidence because

of the eyewitness evidence of the dispute between Nieto and Gilbert and the

shooting itself.

      Under the first two factors of Rule 403 balancing test, we examine the

probative value of the evidence and the State’s need for the evidence.

Gigliobianco, 210 S.W.3d at 641. The testimony had probative value because it

demonstrated Nieto’s possible motive for shooting Gilbert. Furthermore, the State

had great need for this evidence. Nieto’s principal argument was that the shooting




                                         28
was a mistake and this was the only evidence that showed Nieto’s motive for

killing Gilbert. These factors weigh strongly in favor of admissibility. Id.

      For the third factor, we examine the tendency of the evidence to suggest

decision on an improper basis. Evidence might have this tendency if it arouses the

jury’s hostility or sympathy for one side without regard to the probative force of

the evidence. Gigliobianco, 210 S.W.3d at 641. This evidence could have aroused

the jury’s hostility for Nieto because it implied he committed some other offense.

This factor weighs against admissibility.

      For the fourth factor, we examine the tendency of the evidence to confuse or

distract the jury from the main issue. “Evidence that consumes an inordinate

amount of time to present or answer, for example, might tend to confuse or distract

the jury from the main issues.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim.

App. 2007). Here, Lisa’s testimony about motive was brief and directly relevant to

Nieto’s motive and the intent element of the charged offense. As such, it has less

potential to distract the jury from the charged offense. See Manning v. State, 114

S.W.3d 922, 928 (Tex. Crim. App. 2003) (holding that evidence of cocaine in

defendant’s blood could not distract jury from indicted offense of manslaughter

because it was “proof of the indicted offense”). This factor weighs in favor of

admissibility.




                                            29
      Under the fifth factor, we weigh any tendency of the evidence to be given

undue weight by a jury that has not been properly equipped to evaluate the

probative force of the evidence. Here, the evidence was presented as proof of

Nieto’s motive for shooting Gilbert. And, the evidence was not of a technical or

scientific nature; rather, it concerned a matter “comprehensible by laypeople.”

Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d). The

trial court excluded evidence of the reason Nieto was in jail—a stabbing—and thus

mitigated any potential for the jury to give undue weight to the evidence. The trial

court also equipped the jury to evaluate the probative force of this testimony. It

instructed the jury not to consider any testimony regarding the defendant’s having

committed offenses other than the charged offense for any purpose other than to

determine intent, knowledge, absence of mistake, or accident in connection with

the charged offense. This factor weighs in favor of admissibility.

      Finally, under the sixth factor we consider the time required to develop the

evidence. As mentioned, this portion of Lisa’s testimony at issue was brief. Thus,

its presentation did not “consume an inordinate amount of time.” Gigliobianco,

210 S.W.3d at 641–42. This factor weighs in favor of admissibility.

      Balancing all of the factors, we conclude that the trial court did not abuse its

discretion in determining the testimony was not substantially more prejudicial than

probative under Rule 403.

                                         30
      We overrule Neito’s third point of error.
                                       Conclusion
      We affirm the trial court’s judgment.



                                                Rebeca Huddle
                                                Justice

Panel consists of Chief Justice Radack, and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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