                                                                              PD-1135-15
                    PD-1135-15                               COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                             Transmitted 9/1/2015 9:47:15 AM
                                                               Accepted 9/1/2015 1:46:16 PM
                                                                              ABEL ACOSTA
                     NO._________________
                                                                                      CLERK

                             IN THE

                COURT OF CRIMINAL APPEALS

                            OF TEXAS



                    MICHAEL PAUL LAVOIE
                         Petitioner

                                v.

                     THE STATE OF TEXAS
                          Respondent



         Petition is in Cause No. 1251622D from the 213th
             Criminal Court of Tarrant County, Texas,
                and Cause No. 02-14-00333-CR in the
         Court of Appeals for the Second District of Texas



          PETITION FOR DISCRETIONARY REVIEW



                                     Kimberley Campbell
                                     TBN: 03712020
                                     Factor, Campbell & Collins
                                     Attorneys at Law
                                     5719 Airport Freeway
                                     Phone: (817) 222-3333
                                     Fax: (817) 222-3330
                                     Email: lawfactor@yahoo.com
                                     Attorneys for Petitioner
September 1, 2015                    Micheal Paul Lavoie
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                Hon. Louis Sturns,
                                  213th Criminal Court, Tarrant County

Petitioner:                       Micheal Paul Lavoie

Petitioner’s Trial Counsel:       Pia Rodriguez
                                  TBN: 00792983
                                  Attorney at Law
                                  1116 W. Randol Mill, Suite B
                                  Arlington, Texas 76012

                                         –and–

                                  Thomas Murphree
                                  TBN: 24083542
                                  Attorney at Law
                                  2745 Hemphill St.
                                  Fort Worth, Texas 76110

Petitioner’s Counsel              Kimberley Campbell
on Appeal:                        TBN: 03712020
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Page Simpson
                                  TBN: 24046073
                                  Kevin Boneberg
                                  TBN: 24009911
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196



                                    ii
Appellee’s Counsel   Debra Windsor
on Appeal:           TBN: 00788692
                     John Meskunas
                     TBN: 24051044
                     District Attorney’s Office
                      401 W. Belknap Street
                     Fort Worth, Texas 76196




                       iii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I.       The Court of Appeals erred when it affirmed the trial court’s
         denial of Appellant’s 404(b) objection to extraneous offense
         evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        The Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

         C.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

         D.        Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

         E.        Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 0

         F.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15


                                                       iv
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 7

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                     v
                         INDEX OF AUTHORITIES

Cases                                                                          page

Casey v. State,
      215 S.W.3d 870 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . .8

De La Paz v. State,
      279 S.W.3d 336 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 7

Johnson v. State,
      43 S.W.3d 1 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . 13, 14, 15

Johnson v. State,
      967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 12

King v. State,
      953 S.W.2d 266 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 12

Kotteakos v. United States,
      328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). . . .12-13, 14, 15

Lavoie v. State,
       02-14-00333-CR, 2015 WL (Tex. App.–
              Fort Worth, August 28, 2015, no. pet. h.)
                    (mem. op., not designated for publication). . . . 2, 7

Martin v. State,
      173 S.W.3d 463 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . 8, 10, 11

Montgomery v. State,
     810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . . . . . 8, 9, 10, 11

Motilla v. State,
       78 S.W.3d 352 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 13, 15

O’Neal v. McAninch,
     513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). . . . . . . .1 3, 15


                                          vi
Sewell v. State,
       629 S.W.2d 42 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . 7

Webb v. State,
      36 S.W.3d 164 (Tex. App.-
             Houston [14th Dist.] 2000, pet. ref’d). . . . . . . . . . . . . 13, 15

Winegarner v. State,
     235 S.W.3d 787 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 7

Wyatt v. State,
      23 S.W.3d 18 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 10, 11, 12

Statutes

T EX. P ENAL C ODE A NN. § 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . . . 1

Court Rules

T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2

T EX. R. E VID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 11

T EX. R. E VID. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11




                                                    vii
            STATEMENT REGARDING ORAL ARGUMENT

          Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                         STATEMENT OF THE CASE

          On October 27, 2011, Michael Paul Lavoie (“Mr. Lavoie” or

“Appellant”) was charged by indictment with five counts of

aggravated robbery with a deadly weapon.1 (C.R. 6-7); See T EX. P ENAL

C ODE A NN. § 29.03(a)(2) (West 2011). On August 11, 12, 13 & 14, 2014,

a jury trial was held in the 213th Criminal District Court of Tarrant

County, the Honorable Louis Sturns, presiding. (II, III, IV, V & VI R.R.

passim). The jury found Mr. Lavoie guilty of all four counts as charged

in the indictment. (VI R.R. 28). Punishment was to the trial court, which

sentenced Mr. Lavoie to four life sentences in the Texas Department of

Criminal Justice. (VI R.R. 235). A timely Motion for New Trial was filed

on August 29, 2014, which was overruled by operation of law. (C.R.

158). A Timely Notice of Appeal was filed on August 14, 2014. (C.R.

152).



1
    The state waived the fifth count prior to trial. (III R.R. 7).

                                          1
           STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Second Court of Appeals affirming Mr.

Lavoie’s judgment was handed down on August 28, 2015. See Lavoie v.

State, 02-14-00333-CR, 2015 WL (Tex. App.–Fort Worth, August 28,

2015, no. pet. h.) (mem. op., not designated for publication). This

Petition for Discretionary review is therefore timely.

                     GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it affirmed the trial court’s
      denial of Appellant’s 404(b) objection to extraneous offense
      evidence.

                      REASONS FOR REVIEW

1.    The Second Court of Appeals has decided an important question

      of state or federal law in a way that conflicts with the applicable

      decisions of the Court of Criminal Appeals or the Supreme Court

      of the United States.

2.    The decision of the Second Court of Appeals is in conflict with

      another court of appeals’ decision on the same issue.




                                   2
                             ARGUMENT

              GROUND FOR REVIEW ONE (Restated)

I.     The Court of Appeals erred when it affirmed the trial court’s
       denial of Appellant’s 404(b) objection to extraneous offense
       evidence.

       A.    Facts

       At trial, Mr. Lavoie did not dispute the fact that he committed

the charged offenses. (IV R.R. 23). Rather, Mr. Lavoie’s entire trial

strategy was to only contest the deadly weapon (firearm) allegation. (IV

R.R. 23-25). The state presented evidence that Mr. Lavoie had robbed

a Papa John’s pizza store in Tarrant County on February 8, 2011. (V

R.R. 52, 55, 56). In fact, Mr. Lavoie confessed to the robbery as soon as

he was apprehended, though he admitted only to using a non-

operative BB gun in the robbery. (V R.R. 24, 27, 55, 56, 76). At trial, the

state presented the testimony of Papa John’s employees who were

present at the robbery.

       Brittany Jones testified that she was not sure whether the object

in the robber’s hand was a real gun or not. (IV R.R. 46). She further

testified that the robber did not make any motions with the alleged

gun, point it at her, or make any direct threats against anyone. (IV R.R.

41, 44).

                                     3
        Mark Roman testified that the robber didn’t point the gun at him,

make any sort of threats, and that he wasn’t really afraid at the time.

(IV R.R. 61-62). Roman further testified that what he saw could possibly

have been a toy or BB gun. (IV R.R. 63-64).

        Richard Smitherman–the manager at Papa John’s and the person

who was closest to the robber–testified that he questioned the gun’s

authenticity and didn’t know if it was even real or not. (IV R.R. 71, 86,

99). Smitherman further testified that the robber never pointed the gun

directly at him, or made any imminent threats of harm. (IV R.R. 85, 89).

Finally, Smitherman admitted that he couldn’t even tell what the

robber had in his hand, or whether it was a toy, water, or BB gun, and

that he entertained doubts that it was real. (IV R.R. 100, 103-04, 105).

        Cristian Aguilara, a delivery driver for Papa John’s who

happened to be in the store at the time of the robbery, testified that his

mind didn’t process to question whether it was a real gun. (IV R.R. 115,

116).

        Arguing that the authenticity of the alleged gun was at issue, the

state then sought to present evidence of previous, similar robberies

committed by Lavoie in Johnson County for which he had already been



                                     4
convicted. (V R.R. 79-80). At the hearing outside the presence of the

jury, the state presented that there was a witness from the prior

Johnson County robbery who was familiar with firearms and who

could testify unequivocally that Lavoie had used a real firearm in that

Johnson County robbery. (V R.R. 80). The defense objected on

relevance, character conformity and unfairly prejudicial grounds at the

hearing and by pretrial motion. (V R.R. 85-86 ; C.R. 37). The trial court

overruled the objections and allowed the extraneous offense testimony.

(V R.R. 88).

      The state then presented the testimony of Patricia Jones, who

testified that she was present at the Johnson County robbery which

occurred on December 17, 2010 (approximately seven weeks prior to

the instant offense); that she was very familiar with firearms since her

former husband had been a gunsmith; and that she was positive that

Mr. Lavoie had used a real firearm in the prior robbery. (V R.R. 89-95,

107). Patricia Jones went so far as to opine that the weapon Mr. Lavoie

had used in the Johnson County robbery was a Beretta. (V R.R. 95, 104).

      After the state rested and prior to the start of Mr. Lavoie’s

defense, it requested a hearing outside the presence of the jury on the



                                   5
qualifications of Mr. Lavoie’s firearms expert, Kristian Jara. (V R.R.

126). Testimony revealed that Mr. Jara had been in the United States

Air Force for over seven years, where he had been extensively trained

on various weapons, including handguns. (V R.R. 128). It was further

elicited that he had carried a sidearm every day as part of his duties as

a security forces officer while in the Air Force, and had further been

trained in basic police practices in the Air Force. (V R.R. 127). Mr. Jara

further testified that he had particular knowledge of Beretta firearms,

(V R.R. 131, 135), and that he currently owned and operated a corporate

security consulting investigative company and possessed a concealed

handgun license. (V R.R. 126, 129). The trial court denied Mr. Jara to

testify as an expert. (V R.R. 139). Mr. Lavoie thereupon rested without

putting on any evidence. (V R.R. 139).

      The jury convicted Mr. Lavoie of four counts of aggravated

robbery. (VI R.R. 28). Punishment was to the trial court, which

sentenced Mr. Lavoie to four life sentences in the Texas Department of

Criminal Justice. (VI R.R. 235).

      B.     The Opinion Below

      The Second Court of Appeals correctly held that Mr. Lavoie



                                    6
preserved his Rule 404(b) objection to the testimony of Patricia Jones in

which she described the Johnson County robbery. See Lavoie, 2015 WL

at *2. However, the court then went on to hold that the trial court did

not abuse its discretion in admitting the objectionable testimony. Id. at

*7.

      C.     Standard of Review

      An appellate court must review a trial court’s ruling on

admissibility of extraneous offenses under an abuse of discretion

standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

A trial court’s ruling on evidentiary matters will not be reversed unless

the decision was outside the zone of reasonable disagreement.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the

trial court’s ruling can be justified on any theory of law applicable to

that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d at

345 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)

(“When a trial court’s ruling on the admission of evidence is correct,

although giving a wrong or insufficient reason, this Court will not

reverse if the evidence is admissible for any reason.”)).

      D.     Applicable Law

      Relevant evidence of the defendant’s bad character is generally

                                    7
not admissible in order to show that he acted in conformity with that

bad character. T EX. R. E VID. 404(b).2 However, evidence of an

extraneous offense may be admissible under Rule 404(b) to show proof

of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. Id. Extraneous-offense evidence is

also admissible when it is offered to rebut a defense issue that negates

one of the elements of the crime charged. Casey v. State, 215 S.W.3d 870,

879 (Tex. Crim. App. 2007). To be admissible on this basis, the evidence

must logically serve to make more or less probable (1) an elemental

fact, or (2) defensive evidence that undermines an elemental fact.

Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005) (citing

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990)).

         If the trial court determines that the evidence of an extraneous

offense has relevance apart from character conformity, the court should


2
    Rule 404(b) reads:

(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that
upon timely request by the accused in a criminal case, reasonable notice is
given in advance of trial of intent to introduce in the State’s case-in-chief
such evidence other than that arising in the same transaction. TEX. R. EVID .
404(b).

                                      8
admit the evidence absent the opponent’s further objection on

prejudicial grounds under Rule 403. T EX. R. E VID. 403;3 Montgomery, 810

S.W.2d at 389. If this objection is made, the trial court must weigh the

probativeness of the evidence against its potential for unfair prejudice,

that is, the tendency of the evidence to suggest a decision on an

improper basis, commonly, though not necessarily, an emotional one.

Id. In balancing the probative value of the evidence against the danger

of unfair prejudice from the admission of the evidence, the trial court

considers the following factors:

(1) how compellingly the extraneous offense evidence serves to make

a fact of consequence more or less probable—a factor which is related

to the strength of the evidence presented by the proponent to show the

defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury “in

some irrational but nevertheless indelible way”;

(3) the time the proponent will need to develop the evidence, during



3
    Rule 403 of the Texas Rules of Evidence reads:

Although 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, or by considerations of undue delay, or
needless presentation of cumulative evidence. TEX. R. EVID . 403.

                                       9
which the jury will be distracted from consideration of the indicted

offense;

(4) the force of the proponent’s need for this evidence to prove a fact of

consequence, i.e., does the proponent have other probative evidence

available to him to help establish this fact, and is this fact related to an

issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)

(citing Montgomery, 810 S.W.2d at 389–90).

      E.     Discussion

      The extraneous-offense evidence was argued by the state to be

admissible to rebut Mr. Lavoie’s defensive theory here that the object

was not an actual firearm. Martin, 173 S.W.3d at 466 (citing Montgomery,

810 S.W.2d at 387). However, the evidence completely fails to prove

anything in reference to the Papa John’s robber at issue here, and

instead only shows that at least one witness to the Johnson County

robbery believed that Mr. Lavoie had carried a firearm during a

robbery some seven weeks prior. The evidence merely seeks to convict

Mr. Lavoie based on character conformity evidence, and whether Mr.

Lavoie carried a firearm or not at a robbery seven weeks prior to the

instant offense serves to rebut nothing in reference to the instant

offense. However, it does allow the state to inform the jury that Mr.

                                    10
Lavoie had committed a robbery seven weeks prior to the Papa John’s

robbery. As the facts of the Johnson County robbery fail to rebut a

defensive theory, or make an elemental fact more or less probable, the

extraneous-offense evidence should not have been admitted by the trial

court. See T EX. R. E VID. 404(b); see also Martin, 173 S.W.3d at 466;

Montgomery, 810 S.W.2d at 387.

      Additionally, the evidence was not admissible under Rule 403,

See T EX. R. E VID. 403, as it was more prejudicial than probative. First,

the extraneous-offense evidence provided by Patricia Jones was

powerful, direct, and unequivocal that Mr. Lavoie had used an actual

firearm in the Johnson County robbery.4 See Wyatt, 23 S.W.3d at 26.

Second, the similarity of the extraneous offense would necessarily

impress the jury “in some irrational but nevertheless indelible way”

that Mr. Lavoie was a criminal generally. See id. Third, the evidence of

the extraneous offense consumed nearly thirty pages of transcript and

was the last evidence that the jury heard; thus it had a disproportionate

impact in the minds of the jury and served to distract it from the

charged offenses. See id. Finally, the evidence was not critical to the


4
 As discussed below however, this fact exacerbates the trial court’s error
in denying Mr. Lavoie’s controverting expert testimony.

                                    11
state. There were four eyewitnesses to the robbery who each testified

that Mr. Lavoie carried a firearm during the robbery. Id. Thus, the

extraneous-offense       evidence      w as   m o re   prejudicial    than

probative–especially since it was probative of nothing more than the

fact that Mr. Lavoie was a criminal generally–and the trial court abused

its discretion in admitting it. Id.

       F.     Harm Analysis

       Once this Court determines that the trial court abused its

discretion in admitting evidence of the Johnson County offense because

the danger of unfair prejudice to Mr. Lavoie substantially outweighed

the probative value of the evidence, the Court must determine whether

he was harmed by the error. See T EX. R. A PP. P. 44.2. Error under the

rules of evidence in the admission of evidence normally constitutes

nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). A reviewing court is to disregard a nonconstitutional

error that does not affect the substantial rights of the defendant. T EX. R.

A PP. P. 44.2(b). 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) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed.

                                      12
1557 (1946)). In Kotteakos, the United States Supreme Court explained:

      [I]f one cannot say, with fair assurance, after pondering all that
      happened without stripping the erroneous action from the
      whole, that the judgment was not substantially swayed by the
      error, it is impossible to conclude that substantial rights were not
      affected. The inquiry cannot be merely whether there was
      enough to support the result, apart from the phase affected by
      the error. It is rather, even so, whether the error itself had
      substantial influence. If so, or if one is left in grave doubt, the
      conviction cannot stand.

328 U.S. at 765, 66 S.Ct. at 1248 (emphasis added); see Motilla v. State, 78

S.W.3d 352, 355–58 (Tex. Crim. App. 2002); Johnson v. State, 43 S.W.3d

1, 4 (Tex. Crim. App. 2001). The Supreme Court has defined “grave

doubt” to mean “in the judge’s mind, the matter is so evenly balanced

that he feels himself in virtual equipoise as to the harmlessness of the

error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 994, 130

L.Ed.2d 947 (1995); Webb v. State, 36 S.W.3d 164, 182–83 (Tex.

App.-Houston [14th Dist.] 2000, pet. ref’d). If the reviewing court is

unsure whether the error affected the outcome, the court should treat

the error as harmful, i.e., as having a substantial and injurious effect or

influence in determining the jury’s verdict. O’Neal, 513 U.S. at 435, 115

S.Ct. at 994; Webb, 36 S.W.3d at 182–83.

      The defendant is not required to prove harm from an error.

Johnson, 43 S.W.3d at 4. Indeed, there ordinarily is no way to prove

                                    13
“actual” harm. Id. It is instead the duty of the reviewing court to assess

harm from the context of the error. Id. Thus, the proper inquiry is

whether the trial court’s error in allowing the State to prove up the

Johnson County extraneous offense substantially swayed or influenced

the jury’s verdict, or whether this Court is left in grave doubt as to

whether this extraneous offense evidence substantially swayed or

influenced the jury’s verdict. Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248;

Johnson, 43 S.W.3d at 4. In making this determination, this Court must

consider the trial court’s erroneous admission of the extraneous offense

in the context of the entire record and not just whether there was

sufficient or overwhelming evidence of the defendant’s guilt. Motilla,

78 S.W.3d at 355–56.

      Again, the only question at issue here was whether the object

wielded by Mr. Lavoie during the robbery was an actual firearm or a

toy. To that end, the state elicited testimony from every eyewitness to

the robbery, none of whom were able to definitively state that the

object was unquestionably a firearm. At the close of the last eyewitness,

the issue was still very much in doubt. However, by allowing the

inherently inflammatory character evidence to be admitted, the jury

was in effect asked to convict Mr. Lavoie of using a firearm in the Papa

                                    14
John’s robbery because a witness testified assuredly that she thought

he had used a firearm some seven weeks prior. The jury was allowed

to hear that Mr. Lavoie had committed a prior robbery, and that he was

therefore a common criminal. The jury deliberated a little more than 45

minutes before coming back with the guilty verdict.5 An objective

reading of the eyewitness testimony from the charged offense does not

support the paucity of time the jury spent on deliberations in this case.

The reasonable explanation is that the extraneous-offense evidence

served to settle the question in the minds of the jury the inquiry of

whether the object was a real gun or not. At the very least, the court of

appeals should have been unsure whether the error affected the

outcome here. See O’Neal, 513 U.S. at 435, 115 S.Ct. at 994; Webb, 36

S.W.3d at 182–83. The trial court’s error was harmful. Kotteakos, 328 U.S.

at 765, 66 S.Ct. at 1248, Motilla, 78 S.W.3d at 355–58; Johnson, 43 S.W.3d

at 4.

                        PRAYER FOR RELIEF

        WHEREFORE,        PREMISES        CONSIDERED,           Petitioner

respectfully prays that this Court grant discretionary review and allow



5
 Compare VI R.R. 27 (jury deliberations begin at 10:02) and C.R. 151 (jury
verdict form filed at 10:50).

                                    15
each party to fully brief and argue the issues before the Court of

Criminal Appeals, and that upon reviewing the judgment entered

below, that this Court reverse the opinion of the Second Court of

Appeals and reverse the conviction entered below.

                                        Respectfully submitted,

                                        /s/Kimberley Campbell
                                        Kimberley Campbell
                                        TBN: 03712020
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorney for Petitioner
                                        Micheal Paul Lavoie

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
3,386.

                                        /s/Kimberley Campbell
                                        Kimberley Campbell




                                   16
                   CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 1st day
of September , 2015.

                                       /s/Kimberley Campbell
                                       Kimberley Campbell




                                  17
                          APPENDIX

1.   Opinion of the Second Court of Appeals.




                               18
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00333-CR


MICHAEL PAUL LAVOIE                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1251622D

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      In two points, appellant Michael Paul Lavoie appeals his convictions for

four counts of aggravated robbery with a deadly weapon. 2 Appellant asserts that

the trial court erred by admitting evidence of an extraneous offense and by

excluding testimony from his proffered expert witness. We affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
                                Background Facts

      One evening in the winter of 2011, after standing near a Papa John’s

restaurant while talking on his phone, appellant walked into the restaurant,

entered an area behind the register reserved for employees, and ordered the

employees to lie face down on the floor in the back of the restaurant. In his right

hand, appellant carried what looked like a gun. 3 While keeping the gun at his

side, appellant stole money from a cash register, took the employees’ wallets,

told an employee to open the restaurant’s safe, 4 instructed the employees to

remain on the floor for ten minutes, and left the restaurant.            Disregarding

appellant’s instruction, the restaurant’s manager stood up and called the police.

Appellant later told the police about his involvement in the incident.

      A grand jury indicted appellant with five counts of aggravated robbery with

a deadly weapon. Appellant’s indictment included a paragraph alleging that he

had been previously convicted of aggravated robbery with a deadly weapon.

Appellant filed several pretrial motions, including a motion seeking the exclusion

of evidence of extraneous offenses; chose the trial court to assess his

punishment if he was convicted; and pled not guilty to the first four counts of the

indictment. The State waived the fifth count.



      3
        Two employees testified that they had believed the gun was real because
unlike toy guns, it did not have an orange tip on the barrel.
      4
       The employee could not do so because the safe had a time-delay feature.


                                          2
      After receiving the parties’ evidence and arguments, a jury found appellant

guilty of all four counts of aggravated robbery with a deadly weapon. The trial

court heard evidence concerning appellant’s punishment 5 and sentenced him to

confinement for life for each count with the sentences running concurrently.

Appellant brought this appeal.

                 Admission of Extraneous-Offense Testimony

      In appellant’s first point, he argues that the trial court erred by admitting

evidence of an extraneous offense. Specifically, he argues that this evidence

was inadmissible under rules of evidence 403 and 404(b). See Tex. R. Evid.

403, 404(b).

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

discretion. Whitemon v. State, 460 S.W.3d 170, 179 (Tex. App.—Fort Worth

2015, pet. ref’d). A trial court abuses its discretion in admitting evidence if that

decision falls outside the wide zone of reasonable disagreement. Id. We will

uphold an evidentiary ruling on appeal if it is correct on any theory of law that

finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.

App.), cert. denied, 549 U.S. 1024 (2006); Carrasco v. State, 154 S.W.3d 127,

129 (Tex. Crim. App. 2005).

      At trial, appellant conceded that he had been involved in the incident at

Papa John’s, but he contended that he had not used a deadly weapon. Rather,


      5
       Appellant pled true to the repeat offender paragraph of the indictment.


                                         3
appellant argued that he had used only a non-operative BB gun. He questioned

the State’s principal witnesses—the restaurant’s employees—about whether they

were certain that they had seen a real gun.

      Outside the presence of the jury, the State proposed to present testimony

from the victim of a robbery committed by appellant at another restaurant less

than two months before the incident at Papa John’s. The State represented that

this witness would testify that appellant used a real gun in that robbery. The

State argued that this witness’s testimony, although admittedly concerning an

extraneous offense, was admissible to rebut appellant’s defensive theory that the

gun used in the Papa John’s incident was not real. Appellant objected to the

testimony on the ground that he had not created any issue concerning identity or

modus operandi and that the testimony would only “bolster testimony from other

witnesses who clearly indicated that they didn’t feel this was a real weapon.” The

trial court overruled appellant’s objection and admitted the testimony.

      In front of the jury, the witness testified that one evening in December

2010, after waiting in a restaurant while talking on a cell phone, appellant placed

a gun against her back, led her to an office area, ordered her and other

employees to sit on the floor, told one of the employees to open a safe, and

eventually left after telling the employees to not get up for five minutes. The

witness testified that she had been married to a gunsmith, that she had helped

her husband repair guns, that she had been around guns all of her life, and that

the gun appellant used in that offense was real. The witness explained that she


                                         4
could discern that the gun was real because it shined when appellant carried it, it

had a large barrel, it had a clip, it felt heavy when appellant placed it against her

back, and it “wasn’t plastic looking.”

Rule 403 complaint

      Under rule of evidence 403, a trial court may “exclude relevant evidence if

its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Tex. R. Evid. 403. Appellant complains that the evidence concerning

the previous robbery that he committed was inadmissible because it was unfairly

prejudicial under rule 403.     The State argues that we need not address the

substance of appellant’s rule 403 complaint because he did not make a rule 403

objection at trial and therefore did not preserve such a complaint for appeal.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1)(A); Everitt v. State, 407 S.W.3d

259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 305

(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. A reviewing court should not

address the merits of a point that has not been preserved for appeal. Ford v.

State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).


                                         5
      At trial, appellant did not make an objection to the extraneous-offense

evidence on the basis that it was unfairly prejudicial, nor did he explicitly cite rule

403 as a ground for his objection. 6 Thus, we hold that appellant did not preserve

the rule 403 objection for our review, and we overrule that part of his first point.

See Tex. R. App. P. 33.1(a)(1); Everitt, 407 S.W.3d at 262–63; see also Hailey v.

State, 413 S.W.3d 457, 465 n.2 (Tex. App.—Fort Worth 2012, pet. ref’d)

(“Appellant did not object at trial that the evidence was substantially more

prejudicial than probative. Thus, to the extent he attempts to raise a rule 403

complaint on appeal, he failed to preserve that portion of his complaint for

appellate review.” (citation omitted)); Reyna v. State, 99 S.W.3d 344, 348 (Tex.

App.—Fort Worth 2003, pet. ref’d) (holding that a general objection did not

preserve a rule 403 complaint for appellate review).




      6
        In appellant’s pretrial motion in limine, he contended that the trial court
should determine, with regard to any extraneous offense, whether the “probative
value of the evidence is outweighed by [the] danger of unfair prejudice.” But a
motion in limine is “a preliminary matter and normally preserves nothing for
appellate review. For error to be preserved with regard to the subject of a motion
in limine, an objection must be made at the time the subject is raised during trial.”
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (footnote omitted),
cert. denied, 555 U.S. 1105 (2009); see Swilley v. State, No. 02-13-00569-CR,
2015 WL 3637850, at *5 (Tex. App.—Fort Worth June 11, 2015, no pet.)
(“[G]enerally the granting or denial of a motion in limine is a preliminary ruling
only and preserves nothing for appellate review.”); Harnett v. State, 38 S.W.3d
650, 655 (Tex. App.—Austin 2000, pet. ref’d) (“It is axiomatic that motions in
limine do not preserve error.”).


                                          6
Rule 404(b) objection

      Under rule 404(b), evidence of crimes or wrongs committed by the

defendant that are extraneous to the charges at issue are not admissible to

“prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.”          Tex. R. Evid. 404(b)(1);

Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (“The general rule

is that the defendant is to be tried only for the offense charged, not for any other

crimes or for being a criminal generally.”), cert. denied, 558 U.S. 828 (2009). But

such evidence may be admissible for other purposes, including “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.”   Tex. R. Evid. 404(b)(2); see Segundo, 270 S.W.3d at 87

(explaining that “evidence of extraneous acts of misconduct may be admissible if

. . . the uncharged act is relevant to a material issue in the case”); Powell v.

State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (explaining that evidence of an

extraneous offense may be admissible when it is relevant to a “noncharacter

conformity fact of consequence in the case, such as rebutting a defensive

theory”).     Appellant contends that testimony about the prior robbery was

inadmissible as “character conformity evidence” under rule 404(b).

      The State argues that appellant failed to preserve his rule 404(b) argument

for appeal.     But considering the context of the record, in which the State

conceded that it was asking to present evidence of an extraneous offense, we

conclude that appellant preserved the rule 404(b) complaint when he objected to


                                         7
the testimony described above on the grounds that no issue of identity or modus

operandi was in question and that the State’s offer of the testimony was simply

an attempt to bolster existing evidence. See Tex. R. App. P. 33.1(a)(1)(A); Tex.

R. Evid. 404(b)(2) (explaining that evidence of an extraneous offense “may be

admissible [to show] . . . identity” (emphasis added)); Taylor v. State, 939 S.W.2d

148, 155 (Tex. Crim. App. 1996) (“Where the record makes clear that the trial

court understood an objection and its legal basis, a trial court’s ruling on that

objection will be preserved for appeal, despite an appellant’s failure to clearly

articulate the objection.”); see also Casey v. State, 215 S.W.3d 870, 881 (Tex.

Crim. App. 2007) (acknowledging that there is a “modus operandi theory of

admissibility under Rule 404(b)”); Page v. State, 137 S.W.3d 75, 78 (Tex. Crim.

App. 2004) (explaining that if the issue of a defendant’s identity is raised, rule

404(b) permits introduction of extraneous offense evidence relevant to the

identity issue).

      We cannot conclude, however, that the trial court abused its discretion by

admitting the evidence of the prior robbery over appellant’s rule 404(b) objection.

Evidence of an extraneous offense may be admissible to rebut a defensive

theory on an elemental fact. Powell, 63 S.W.3d at 438. In Powell, during a trial

for indecency with a child, the State presented evidence that Powell had sexually

molested the victim—a young female—on numerous occasions in his living room

while other people were sleeping in the room.        63 S.W.3d at 436.      Powell

contended in his opening statement and through cross-examination of the victim


                                        8
that he could not have had the opportunity to molest the victim with others

present in the same room.      Id. at 436–37.     In response, the State offered

extraneous offense evidence from several witnesses who testified that appellant

had molested them under circumstances similar to those the victim had

described. Id. at 437. The court of criminal appeals held that the trial court had

not abused its discretion by admitting evidence of the extraneous crimes

because the evidence rebutted Powell’s defensive theory “that he had no

opportunity to commit the offense because he was never alone” with the victim.

Id. at 438.

      Analogous to Powell, Texas courts have held that when a defendant

claims that he did not use a real gun while committing an offense, the State may

present evidence that the defendant used a real gun in a similar offense or

previously had access to a real gun. See Owens v. State, No. 14-11-01059-CR,

2012 WL 3292962, at *1–2 (Tex. App.—Houston [14th Dist.] Aug. 14, 2012, pet.

ref’d) (mem. op., not designated for publication) (concluding that when the

defendant’s theories were that he had not used a real firearm during a robbery

but only a BB gun and that he could not have had access to a real gun because

he was a felon and barred from buying one, the State could present evidence

that appellant had used a real gun in a similar robbery two years earlier); Diaz v.

State, No. 01-96-01070-CR, 1998 WL 93038, at *1, *3–4 (Tex. App.—Houston

[1st Dist.] Mar. 5, 1998, pet. ref’d) (not designated for publication) (concluding

that in an aggravated robbery case, testimony that the defendant displayed a real


                                        9
gun in a similar robbery weeks after the charged offense tended to “rebut the

defensive theory that the gun was not real and [tended] to prove a material fact in

the State’s case”); see also Nevarez v. State, 503 S.W.2d 767, 769 (Tex. Crim.

App. 1974) (concluding that when a defendant was charged with unlawfully

carrying a gun in a lounge where alcohol was served and theorized that the gun

was not real, the State was permitted to introduce evidence that shortly after he

left the lounge, “a shot was heard and bullet holes were found in the window and

the wall of the lounge”).

      Here, the trial court could have reasonably ruled that evidence of the prior,

remarkably similar robbery in which appellant used a real gun was admissible to

rebut his defensive theory that he used a non-operative BB gun during the

robbery at Papa John’s. Whether the gun was real was, of course, material and

elemental because the State had to prove that appellant used a deadly weapon

to obtain a conviction for aggravated robbery. 7     See Tex. Penal Code Ann.

§ 29.03(a)(2).

      Under the authority cited above, it is at least subject to reasonable

disagreement whether the testimony about appellant’s extraneous offense was

admissible for the noncharacter-conformity purpose of rebutting appellant’s

contention that he used a fake gun during the incident at Papa John’s. See


      7
       Appellant states on appeal that the “only contested issue in [his] trial was
whether the object carried by [appellant] in the robbery was really a firearm or a
toy BB gun.”


                                        10
Powell, 63 S.W.3d at 438; Nevarez, 503 S.W.2d at 769; Owens, 2012 WL

3292962, at *1–2; see also De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009) (explaining that rule 404(b) “excludes only that evidence that is

offered (or will be used) solely for the purpose of proving bad character and

hence conduct in conformity with that bad character” (emphasis added)). Thus,

we hold that the trial court did not abuse its discretion by admitting the testimony,

and we overrule the remainder of appellant’s first point. See Whitemon, 460

S.W.3d at 179.

                         Exclusion of Expert Testimony

      In his second point, appellant complains that the trial court abused its

discretion by not allowing his proffered expert witness, Kristian Jara, to testify.

After the State rested, outside of the jury’s presence, appellant called Jara, who

testified that he is a private security sales consultant and a private investigator,

that he was an officer in the Air Force for several years, that he had received

basic police training and weapons training (including shooting and cleaning

them), that he has a concealed handgun license, that he owns three firearms,

that he had “much training in the care and appearance of weapons,” that he

could describe the difference between a “shiny weapon and a matte weapon,”

and that he could also discern the difference between a real gun and a fake gun.

On cross-examination by the State outside of the jury’s presence, Jara conceded

that he had not witnessed the incident at Papa John’s, did not know appellant,

and had not examined any firearms related to appellant’s case. After hearing


                                         11
Jara’s testimony, the trial court ruled that he would not be able to testify as an

expert witness, and appellant rested as to guilt-innocence without calling any

witnesses.

      Although appellant complains on appeal that the trial court erred by

excluding Jara’s testimony, we conclude that appellant did not preserve this

complaint for our review. To preserve error related to the exclusion of evidence,

the substance of the excluded evidence must be shown by an offer of proof

unless it is apparent from the context of the questions asked. Tex. R. App. P.

33.2; Tex. R. Evid. 103(a)(2); Bundy v. State, 280 S.W.3d 425, 428 (Tex. App.—

Fort Worth 2009, pet. ref’d). Error may be preserved by an offer of proof in

question and answer form or in the form of a concise statement by counsel. Tex.

R. Evid. 103(a)(2); Bundy, 280 S.W.3d at 429. Counsel’s concise statement

must include a summary of the evidence offered. Bundy, 280 S.W.3d at 429.

Error is not preserved if the offer of proof is inadequate. Id.; see also Mays v.

State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (holding that error was not

preserved when appellant failed to proffer, with “some degree of specificity,” the

substantive evidence he intended to present).

      Here, appellant did not establish, through questions of Jara or through any

statement by counsel, the content of Jara’s proposed testimony.           Instead,

appellant elicited evidence only as to Jara’s qualifications and the general topics

(but not the specific opinions) of his proposed expert testimony, which is

insufficient to preserve error. See Tex. R. Evid. 103(a)(2); Bundy, 280 S.W.3d at


                                        12
429; see also Mays, 285 S.W.3d at 890; Solley v. State, No. 14-07-00803-CR,

2009 WL 396268, at *3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, pet.

ref’d) (mem. op., not designated for publication) (“We hold that counsel’s

identification of the mere topics of the expert’s likely testimony does not qualify

as a ‘reasonably specific summary’ of the evidence.”). We are not at liberty to

judge the propriety or the potential harm of the trial court’s evidentiary ruling

without knowing the content of the potential testimony. See Stewart v. State, 686

S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); see

also Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (“The primary

purpose of the offer of proof is to enable an appellate court to determine whether

the exclusion was erroneous and harmful.”); Dozal v. State, No. 02-13-00478-

CR, 2015 WL 120491, at *3 (Tex. App.—Fort Worth Jan. 8, 2015, no pet.) (mem.

op., not designated for publication) (“[T]he record does not disclose what Martin’s

answer to appellant’s question about her previous confinement would have been,

nor does the context of the question disclose the answer. Thus, we conclude

that appellant failed to preserve error as to this point, and we overrule it.”);

Alberts v. State, 302 S.W.3d 495, 509–10 (Tex. App.—Texarkana 2009, no pet.)

(holding that error was not preserved when the defendant elicited testimony

about an expert’s qualifications but did not elicit testimony about the substance of

the expert’s opinion). Because we conclude that appellant failed to preserve a

complaint about the exclusion of Jara’s testimony by not establishing what the

substance of that testimony would have been, we overrule his second point.


                                        13
                                 Conclusion

      Having overruled both of appellant’s points, we affirm the trial court’s

judgments.

                                                /s/ Terrie Livingston

                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J. GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 28, 2015




                                     14
