                                  NO. 07-09-00226-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                     MARCH 9, 2011


                          RYAN JOHN KELLEY, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 20,265-C; HONORABLE ANA ESTEVEZ, JUDGE


Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.1


                               MEMORANDUM OPINION

       Appellant, Ryan John Kelley, appeals the trial court’s judgment of conviction for

the state jail felony offense of causing injury to an elderly person by reckless conduct.2

Appellant was sentenced to twenty-two months in a state jail facility. We will affirm.




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
       2
         TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (West Supp. 2010). An elderly person
is defined as a person sixty-five years of age or older. See id. § 22.04(c)(2).
                               Factual and Procedural History


       On October 18, 2008, appellant wanted to pick up the daughter he shared with

Tiffany Duvak. Whether such an arrangement was pursuant to an informal agreement3

between appellant and Duvak, as appellant asserts, or whether it was, as Duvak

characterizes it, an unannounced visit in further attempt to persuade Duvak to let him

take his daughter for a while, the visit did not end well.


       Appellant arrived at the home where Duvak and their daughter lived with Duvak’s

grandparents, Janet Kay (Kay) and Forrest Glidewell. At first, the visit went well, but the

mood and interaction soon soured. Whether pursuant to the original agreement or

contrary to Duvak’s wishes from the beginning, appellant had decided to take his

daughter. There is some dispute as to the details of how, precisely, a conflict arose but

it did. Appellant ended up leaving the house and heading toward his vehicle with his

distressed two-year-old daughter. Duvak and the Glidewells attempted to prevent him

from leaving. Duvak and Kay followed him, and shortly thereafter Forrest joined them at

or near appellant’s car where a fracas ensued. Though, again, the accounts differ as to

the details of the incident, witnesses testified and appellant admitted that, during the

fray, he punched Forrest in the face and shoved the sixty-six-year-old Kay a number of

times, causing her to fall to the street and injure her elbow.


       As a result of the altercation with Kay, appellant was charged with causing injury

to an elderly person. At trial, appellant testified and asserted that he acted in self-

defense. In support of his defense, he claimed that it was because Kay repeatedly
       3
           It appears appellant and Duvak had no formal custody order in place.

                                              2
pulled at and hit him that he shoved her, believing it was immediately necessary to

protect himself from her. The State then sought to introduce evidence that appellant

had been convicted earlier in 2008 of misdemeanor assault against a female. Defense

counsel unsuccessfully objected to admission of this evidence on the bases of Rules

403, 404, and 609 of the Texas Rules of Evidence,4 and the evidence was admitted.


      The jury found appellant guilty of the lesser-included offense of causing injury to

an elderly person by reckless conduct. The jury then assessed punishment at twenty-

two months in a state jail facility. Appellant does not challenge the sufficiency of the

evidence to support said conviction. Instead, he focuses his three issues on the trial

court’s admission of evidence that appellant was previously convicted for assault. He

brings to this Court three issues, all of them associated with admission of such

evidence. First, he contends the trial court abused its discretion by admitting evidence

of the prior assault conviction when the conviction did not involve a crime of moral

turpitude because the victim of that assault was a female but was not his wife.

Secondly, appellant maintains that the trial court abused its discretion by admitting

evidence of the assault conviction because the probative value of such evidence was

substantially outweighed by the danger of unfair prejudice. Finally, appellant contends

that the trial court abused its discretion by admitting evidence of the assault conviction

for the purpose of impeachment where such conviction is not probative of appellant’s

credibility and such conviction substantially prejudiced appellant by implying to the jury

appellant’s propensity and character.

      4
       All subsequent references to “Rule” or “Rules” refer to the Texas Rules of
Evidence.

                                            3
                                   Standard of Review


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

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). A trial court

does not abuse its discretion if its decision is within the zone of reasonable

disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g). We

will sustain the trial court’s decision if that decision is correct on any theory of law

applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).


                                         Analysis


       Initially, the trial court ruled that the evidence was admissible under Rule 609 to

impeach appellant. Prior to admission of the evidence, however, the trial court held

another hearing outside the presence of the jury so as to further develop the issues

surrounding the prejudicial effect and probative value under Rules 403 and 404. At this

second hearing, the trial court again expressed concern regarding the potential

prejudice that evidence of an assault against a female could carry with it.          It did

conclude, however, that the evidence was relevant to show intent and to rebut

appellant’s claim of self-defense. Consequently, after careful consideration, the trial

court opted to lessen that potential by excluding evidence of the gender of the victim

and details of the assault and, instead, permitted the State to introduce only evidence of

the date and type of offense. Consistent with its ruling that the evidence would be

admitted for the purposes of rebutting appellant’s self-defense theory and illuminating

the issue of intent, the trial court included an instruction in its charge to the jury that

                                            4
evidence of other crimes could only be considered, if considered at all, “for the purpose

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

absence of mistake or accident.” Such purposes are consistent with admission on the

basis of Rule 404(b), and, with that, we look first to appellant’s second and third issues

concerning the probative value and prejudicial effect of the evidence and the tendency

such evidence had in terms of establishing appellant’s propensity and character

conformity.


                                      Rule 404(b)


       Rule 404 provides that “[e]vidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.”   TEX. R. EVID. 404(b).     Evidence of extraneous misconduct may be

admissible, however, when such evidence is relevant to a non-character-conformity fact

of consequence in a case, such as establishing motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id.; Berry v. State, 233

S.W.3d 847, 858 (Tex.Crim.App. 2007); Robbins v. State, 88 S.W.3d 256, 259

(Tex.Crim.App. 2002).    Further, although not specifically delineated in Rule 404(b),

extraneous offense evidence may also be admissible when a defendant asserts an

affirmative defense, such as self-defense. See Johnston v. State, 145 S.W.3d 215, 219

(Tex.Crim.App. 2004); Robbins, 88 S.W.3d at 259.


       Here, appellant admits having shoved Kay a number of times and acknowledges

that she fell to the ground as a result of having been shoved. Appellant explained that,

as he left the house with the daughter, Kay and Duvak were “clawing at [his] collar.” He

                                            5
added that Kay slapped him twice as he tried to get into his vehicle. He testified that he

shoved Kay only in an effort to protect himself and to allow him to close the door and

get away from her. Appellant clearly asserted self-defense as a defense to the charges

against him. With that, the complained-of evidence had a purpose apart from character

conformity: it was relevant to rebut appellant’s self-defense theory. See TEX. R. EVID.

404(b); Johnston, 145 S.W.3d at 219.


      Because it is well-established that the State was permitted to rebut appellant’s

claim of self-defense with evidence of other crimes, wrongs, or acts, or evidence of

violent acts in which appellant was the aggressor, we cannot say that the trial court

abused its discretion by admitting evidence of the prior assault conviction for such

purposes. See Lemmons v. State, 75 S.W.3d 513, 522–23 (Tex.App.—San Antonio

2002, pet. ref’d) (holding that extraneous offense evidence offered by the State to show

murder defendant was aggressor in the past was relevant to rebut his self-defense

claim). We overrule appellant’s issue.


                                         Rule 403


      Appellant further contends that the evidence should have been excluded under

Rule 403. See TEX. R. EVID. 403. Although admissible under Rule 404(b), the same

evidence may be inadmissible under Rule 403 if the probative value of such evidence is

substantially outweighed by unfair prejudice.       Prince v. State, 192 S.W.3d 49, 56

(Tex.App.—Houston [14th Dist.] 2006, pet. ref’d). The following factors are taken into

consideration when undertaking a Rule 403 analysis: (1) the inherent probative force of

the proffered evidence; (2) the proponent’s need for that evidence; (3) any tendency of

                                            6
the evidence to suggest decision on an improper basis; (4) any tendency of the

evidence to confuse or distract the jury from the main issues; (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence; and (6) the likelihood that presentation of the evidence

will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.Crim.App. 2006). Rule 403 favors

admission of relevant evidence, and we presume that relevant evidence will be more

probative than prejudicial. Shuffield, 189 S.W.3d at 787.


       Here, whether appellant acted in self-defense was a pivotal issue at trial, perhaps

the only issue, since appellant admitted having committed the acts alleged but claimed

to have done so in self-defense. So, the extraneous-offense evidence was probative,

and the State had considerable need for this evidence in that it had little other evidence

to rebut appellant’s self-defense claim.5 See Giglioblanco, 210 S.W.3d at 641–42. In

light of the parties’ positions at trial, the evidence of the prior assault conviction was

quite probative.


       By that same reasoning, the evidence was also prejudicial to appellant.

However, to say that the evidence was prejudicial is not to say that the evidence was

       5
         Arguably, however, it did have some other evidence that could be said to rebut
appellant’s theory of self-defense. For instance, the jury did hear some evidence
referring to Forrest’s understanding that a protective order was in effect against
appellant. The jury also heard conflicting evidence on whether appellant first hit Duvak
as he grabbed the daughter and left the house. Further, one neighbor who witnessed
the incident testified that another neighbor had restrained appellant to some degree
when Kay came out and began to yell at him and, apparently, spit on or toward him. In
response, appellant broke free and shoved Kay.

                                            7
inadmissible. See Casey v. State, 215 S.W.3d 870, 883 (Tex.Crim.App. 2007). Simply

because the evidence was prejudicial does not mean that its probative value was

substantially outweighed by “unfair prejudice” under Rule 403. The Texas Court of

Criminal Appeals has explained the meaning of “unfair prejudice” under Rule 403:


       Unfair prejudice refers not to an adverse or detrimental effect of evidence
       but to an undue tendency to suggest a decision on an improper basis,
       commonly an emotional one. Unfair prejudice does not arise from the
       mere fact that evidence injures a party’s case. Virtually all evidence that a
       party offers will be prejudicial to the opponent’s case, or the party would
       not offer it. Evidence is unfairly prejudicial only when it tends to have
       some adverse effect upon a defendant beyond tending to prove the fact or
       issue that justifies its admission into evidence. The prejudicial effect may
       be created by the tendency of the evidence to prove some adverse fact
       not properly in issue or unfairly to excite emotions against the defendant.

Id. (Citations omitted).   Further, we add that the trial court gave the jury a limiting

instruction that directed the jury to consider the evidence only for permissible purposes,

not to show that appellant acted in conformity with such evidence. See Garcia v. State,

201 S.W.3d 695, 704 (Tex.Crim.App. 2006). Unless the record establishes otherwise,

we presume that the jury followed the trial court’s instruction. See Colburn v. State, 966

S.W.2d 511, 520 (Tex.Crim.App. 1998).


       The trial court carefully considered the issues surrounding admission of evidence

related to the prior assault conviction and concluded that the State could mention only

the date and nature of the conviction. The trial court specifically prohibited the State

from mentioning the gender of the victim or any other details surrounding the offense.

The State’s presentation of the evidence consumed three lines of the record. Further,

as stated, the State’s need for this evidence was rather pressing because there was

little other evidence that could serve to rebut appellant’s theory of self-defense. Based
                                            8
on these considerations, we cannot say that presentation of this evidence was likely to

consume an inordinate amount of time or merely repeat evidence already admitted.


       The trial court could have reasonably concluded that the evidence was not

unfairly prejudicial and did not have a tendency to suggest a decision on an improper

basis or to confuse or mislead the jury. Considering the relevant factors, we conclude

that the trial court did not abuse its discretion by admitting evidence of the prior assault

conviction over appellant’s Rule 403 objection. We overrule appellant’s second issue.


                                           Rule 609


       By his remaining issue, appellant maintains that the trial court abused its

discretion by concluding that the prior assault was a crime of moral turpitude and was,

thus, available as impeachment evidence under Rule 609. With respect to impeaching

the credibility of witnesses by introduction of evidence of convictions involving moral

turpitude, Rule 609 provides as follows:


       For the purpose of attacking the credibility of a witness, evidence that the
       witness has been convicted of a crime shall be admitted if elicited from the
       witness or established by public record but only if the crime was a felony
       or involved moral turpitude, regardless of punishment, and the court
       determines that the probative value of admitting this evidence outweighs
       its prejudicial effect to a party.

TEX. R. EVID. 609(a). Appellant contends that, because the female victim of the prior

assault was not his wife, such conviction did not involve a crime of moral turpitude and,

therefore, was unavailable to impeach him under Rule 609.




                                              9
      Because we have concluded that the evidence was admissible under Rules 403

and 404(b), we need not determine whether the evidence was also admissible under

Rule 609. See Romero, 800 S.W.2d at 543; see also TEX. R. APP. P. 47.1.


                                      Conclusion


      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                      Mackey K. Hancock
                                                           Justice



Do not publish.




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