                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00370-CR
                            ____________________

                      TYRRELL CECIL PETE, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                    On Appeal from the 252nd District Court
                           Jefferson County, Texas
                          Trial Cause No. 13-17922
________________________________________________________________________

                           MEMORANDUM OPINION

      In two evidentiary issues, Tyrrell Cecil Pete appeals his aggravated assault

conviction. See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). Specifically, Pete

argues the trial court erred in admitting lay-opinion testimony he contends was

speculation and allowing the State to elicit details from him concerning prior

offenses he admitted to committing during his direct examination. We overrule both

of Pete’s issues and affirm the trial court’s judgment.


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                                    Background

      On October 4, 2013, Pete undisputedly shot and seriously injured J.S. What

prompted the shooting is in dispute. There are two different versions of the events,

one from J.S. and his sister C.C., and the other from Pete and his wife, O.P. Pete’s

former mother-in-law also testified. She was not directly involved with the parties’

confrontation, but Pete contacted her several times throughout the morning prior to

the shooting.

      Pete and his wife operate a deli inside a gas station named Fuel Depot. C.C.

testified she stopped by Fuel Depot the morning of the shooting to use the ATM.

C.C. was sitting in her car when Pete pulled up next to her in his car. While sitting

in their respective vehicles, C.C. and Pete, who was a good friend of C.C.’s husband,

began a conversation about C.C. becoming romantically involved with another man

while her husband was in prison. The conversation became heated, and both exited

their vehicles and stood in the parking lot arguing. Pete’s wife came out of Fuel

Depot to intervene and told Pete to leave. C.C. testified that as Pete turned to leave,

he told her he was coming back and “[h]e had something for [her.]” While C.C.

understood Pete’s statement as a threat, C.C. testified she never asked her brother or

her brother-in-law, M.D., to go look for Pete or seek revenge. C.C. never saw J.S. or

M.D. with a gun the day of the shooting.

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      According to J.S., the morning of the shooting M.D. informed him Pete

threatened to kill C.C. J.S. told the jury he had just seen C.C. at the Fuel Depot, and

C.C. did not appear to be upset. Later, J.S. and M.D. saw Pete on the road, pulled up

next to him and asked him what happened between him and C.C. According to J.S.,

Pete told the men C.C. was lying about him threatening her. Pete told them C.C.

approached him outside the Fuel Depot complaining that Pete was supposed to send

her money while her husband was incarcerated. J.S. told the jury Pete did not appear

mad after their conversation.

      J.S. testified he and M.D. then returned to M.D.’s house. While M.D. was

inside the house, J.S. and another acquaintance were sitting on M.D.’s front porch.

Pete then pulled up to M.D.’s house and stated he heard J.S. and M.D. were looking

for him, which J.S. denied. After Pete repeatedly stated that he heard J.S. and M.D.

were looking for him, J.S. told Pete to leave. When Pete refused, J.S. left the porch

and began walking towards Pete’s vehicle. According to J.S., Pete told him not to

come near his car. J.S. denied he had a weapon on him at the time and further denied

telling Pete he had a gun or threatening Pete in any way. After Pete continued to

refuse to leave, J.S. turned and began to walk away. In the meantime, M.D. came

out of the house and told Pete to leave. J.S. testified Pete climbed out of his car and




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suddenly started shooting, first toward M.D, then toward J.S. Pete shot J.S. several

times in the back causing him serious bodily injury. Pete then drove off in his car.

      Pete testified in his defense and provided a different version of events. Pete

claimed as soon as he pulled up to Fuel Depot, C.C. instigated an argument, telling

him he was to take care of her because her incarcerated husband, Pete’s friend, told

her that Pete would help her. Pete’s wife then came outside and intervened. As Pete

was leaving, C.C. allegedly called her brothers and told them to take care of Pete.

Soon after leaving Fuel Depot, Pete said he encountered J.S. and M.D. in a car on

the road. Per Pete’s testimony, J.S. got out of the car and started to approach Pete’s

car, and M.D. got out of the same car with a gun. Pete left and called his former

mother-in-law asking her to contact C.C., J.S., and M.D.’s family to have them stop

threatening him because he was scared. Pete then returned to Fuel Depot, where he

claimed his wife told him about someone coming in the store and threatening their

family. Pete made more calls to his ex-mother-in-law wherein Pete explained that he

felt further threatened. In response to the escalated situation, Pete decided to find

J.S. and M.D. to work out the issue.

      Pete testified that as he was driving down the street, J.S. came off M.D.’s

porch, flagged Pete down in the middle of the street with a hand behind his back,

and threatened Pete and his family repeatedly. Pete told the jury he asked J.S. not to

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come up to Pete’s vehicle with his hands behind his back. Pete explained while he

and J.S. argued for a couple minutes, M.D. came out of his house with something in

his hands, jumped off his porch, and began walking towards Pete followed by

another man who was also at the house. Pete became fearful for his life. Pete claimed

J.S. reached for Pete’s vehicle and opened the driver’s door. Because he and J.S.

were arguing, and M.D. and the other man were coming towards him, Pete reached

under the seat of his vehicle and retrieved a gun. Pete expressed that he thought, “it

was either me or him[,]” and he began firing the gun. Pete did not aim at anyone or

anything, he just shot in the direction of M.D. first and then J.S. According to Pete,

he felt his actions were immediately necessary to protect himself.

      Pete’s wife, O.P., testified to her observations at Fuel Depot. O.P. recalled

C.C. coming in the store twice, then sitting in her car outside the store as Pete drove

up and exited his car. Pete and C.C. then began arguing. O.P. went outside; she said

C.C. claimed Pete told her husband he would take care of her and pay her bills. Pete’s

wife indicated the argument escalated to C.C. threatening Pete and his family. O.P.

testified that later, another woman came into Fuel Depot looking for Pete and told

O.P. “we” knew where her kids attended school, threatened the family, and told her

that they had already gotten her house. O.P. learned soon thereafter her house had

been vandalized.

                                          5
      Pete’s former mother-in-law testified that on the day J.S. got shot, Pete called

her upset and asked her to contact C.C.’s mother to tell C.C.’s family to leave him

alone. After speaking with C.C., Pete’s former mother-in-law spoke with Pete again

and suggested Pete leave the matter alone. In another call, Pete insisted she tell

C.C.’s family to leave him alone and claimed that in addition to J.S. and M.D.

threatening him, J.S. and M.D. went to the Fuel Depot and threatened his wife. Pete

told his former mother-in law he would not allow them to do this. Pete also claimed

M.D. had a gun when he threatened him. Then, according to Pete’s former mother-

in-law, Pete called her back and told her if they continued to bother his wife and his

family, he was “going to shoot them.”

      During closing arguments, Pete’s counsel acknowledged Pete shot J.S., but

emphasized Pete feared for his life and claimed he tried to elicit help from his former

mother-in-law to disarm the situation. When it did not work and after Pete tried to

discuss the matter with J.S., Pete felt it necessary to shoot to save his own life. The

State urged the jury to believe C.C.’s and J.S.’s versions of the events and find Pete

guilty of the offense. The State asserted if all the threats against Pete and his family

were true, Pete should have contacted the police rather than take matters into his

own hands. The State rejected Pete’s claim he shot J.S. out of necessity. The jury




                                           6
did as well and found Pete guilty of aggravated assault, sentencing him to thirty years

in prison.

               Standard of Review for the Admission of Evidence

      Both of Pete’s issues on appeal concern the trial court’s admission of

evidence. We review a trial court’s decision to admit or exclude evidence for an

abuse of discretion. See Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App.

2010). We will not reverse the trial court’s ruling unless the record demonstrates a

clear abuse of discretion. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.

2003). A trial court abuses its discretion when the court’s decision was so clearly

wrong as to lie outside the zone within which reasonable persons may disagree. Id.

                      Admission of Lay Opinion Testimony

      In Pete’s first issue, he asserts the trial court erred by admitting a witness’s

impression of what Pete meant by a statement allegedly made to her during an

argument. According to Pete, C.C.’s testimony about Pete’s statement amounted to

inadmissible speculation.

      C.C. described her argument with Pete, stating that before Pete drove off in

his car, he told her “[h]e had something for [her.]” The State asked C.C. what she

thought that statement meant. Defense counsel objected, claiming it called for

speculation, but the trial court overruled the objection and said C.C. would be

                                          7
allowed to explain “specifically what she thought that meant to her.” C.C. stated she

understood it to be “a bad thing in [her] eyes[,]” that “he was going to get something

for [her], something to take care of [her,]” but she could not say specifically what he

meant. The State tailored the question so the answer was limited to what Pete’s

statement meant to her. C.C. affirmed she felt threatened by Pete.

      Texas Rules of Evidence 602 and 701 apply when a party objects claiming the

testimony is speculative. See Tex. R. Evid. 602, 701; Solomon v. State, 49 S.W.3d

356, 364–65 (Tex. Crim. App. 2001); Turro v. State, 950 S.W.2d 390, 403 (Tex.

App.—Fort Worth 1997, pet. ref’d). Rule 602 requires that a witness have personal

knowledge of the matter on which he or she is testifying. Tex. R. Evid. 602. Rule

701 concerns lay witness opinion testimony. Tex. R. Evid. 701. Rule 701 allows lay

witnesses to express opinions when the opinion is based on the witness’s perception

and is helpful to the jury’s understanding of the witness’s testimony or to the jury’s

determination of a fact at issue in the case. See Tex. R. Evid. 701; Osbourn v. State,

92 S.W.3d 531, 535 (Tex. Crim. App. 2002).

      The first prong of Rule 701 requires a witness rationally base his or her

testimony on what he or she perceives. See Tex. R. Evid. 602, 701; Solomon, 49

S.W.3d at 364–65; Fairow v. State, 943 S.W.2d 895, 897 (Tex. Crim. App. 1997).

The personal knowledge of the events which forms the basis of the witness’s opinion

                                          8
may come directly from what the witness sees, hears, or smells, or otherwise from

the witness’s experience. Osbourn, 92 S.W.3d at 535; Fairow, 943 S.W.2d at 898.

An opinion is rationally based on a witness’s perception if the opinion is one a

reasonable person could have drawn under the circumstances. Fairow, 943 S.W.2d

at 900. The second prong of Rule 701 requires the witness’s opinion be helpful to

the trier of fact. See Tex. R. Evid. 602, 701; Solomon, 49 S.W.3d at 364–65. There

is no “bright line” test indicating when an opinion is helpful. Fairow, 943 S.W.2d at

900. “This consideration is especially prudent when the opinion concerns culpable

mental state.” Id.

      Initially, we conclude the State established the predicate that C.C. had

personal knowledge of the events upon which her testimony was based. See id. at

898–99; see also Tex. R. Evid. 701. She participated in the conversation with Pete

to which she testified. See Fairow, 943 S.W.2d at 898. Specifically, regarding

whether a reasonable person could draw the same conclusion as C.C.—that Pete’s

statements were perceived by C.C. as threatening—C.C. described a heated

argument with Pete. According to C.C., the argument began when Pete expressed

she should not be dating or be involved with anyone romantically while her husband,

Pete’s friend, was incarcerated. C.C. stated the argument escalated to a point they

both stepped out of their cars arguing until Pete’s wife came outside the store and

                                         9
told Pete to leave, at which time, he made the statement that C.C. interpreted as a

threat. As a result, through what she perceived, C.C. could testify regarding what

she believed Pete meant by the statement. See Tex. R. Evid. 602, 701; Solomon, 49

S.W.3d at 364; Fairow, 943 S.W.2d at 898–99. Moreover, a reasonable person could

form the opinion C.C. expressed about the meaning of Pete’s statement to her. See

Fairow, 943 S.W.2d at 900.

      Next, under Rule 701, the witness’s testimony must be helpful to the jury.

Solomon, 49 S.W.3d at 364. Testimony is helpful when it either assists the jury to

understand the witness’s testimony or to understand a fact issue. Fairow, 943 S.W.2d

at 900. The decision regarding admissibility is committed to the sound discretion of

the trial court. Id. at 901. It is likely the trial court found C.C.’s perception of Pete’s

statement helpful in assisting the jury to understand C.C.’s testimony. See Osbourn,

92 S.W.3d at 535 (explaining that a witness’s testimony can include opinions,

beliefs, or inferences if they are drawn from his or her own experiences or

observations). The trial court did not abuse its discretion by allowing C.C.’s opinion

testimony. We overrule Pete’s first issue.

               Admission of Underlying Facts of Prior Convictions

      Pete argues in his second issue the trial court erred by allowing the State to

cross-examine him about the underlying facts of his prior convictions for arson and

                                            10
drug possession. Pete testified at trial. When explaining why he should not have had

a gun, Pete’s counsel asked him about being a convicted felon. Pete then stated he

pled guilty to arson and drug possession charges and served time for those offenses.

In addition, defense counsel asked Pete whether his prior convictions were crimes

of violence, to which Pete responded, “No[.]”

      The State then cross-examined Pete and asked several questions about the

details of the crimes underlying each conviction. Pete explained the arson conviction

arose after a man stole his ex-wife’s purse from inside their car. In response, Pete

and another person burned the thief’s car. When asked whether Pete considered that

reaction not to be an act of violence, Pete responded that “nobody got hurt. The car

got burned.” Next, the State inquired as to Pete’s drug charge, which Pete said was

a federal charge for possession of cocaine. Pete also admitted he both used and sold

cocaine before his conviction. When the State asked how long he sold drugs, defense

counsel objected claiming the information the State sought was outside the scope of

Texas Rules of Evidence Rule 609. The trial court overruled the objection. The State

then asked Pete further details of each conviction and specifically, why he did not

contact the police when his ex-wife’s purse was stolen instead of taking matters into

his own hands.




                                         11
       Pete contends on appeal the trial court erred by allowing the State to elicit

details of his prior felony offenses because the evidence was not elicited to question

Pete’s credibility, but rather to convict him based on the extraneous conduct itself.

The State referenced the arson charge in its closing argument to draw the comparison

in that case to Pete’s decision here to not contact the police for assistance because of

the alleged threats against his family but rather take matters into his own hands and

retaliate.

       Rule of Evidence 609 permits the admission of evidence of the fact of a prior

felony conviction offered to attack a witness’s character for truthfulness. Tex. R.

Evid. 609(a). However, the details of the prior conviction are generally inadmissible

for purposes of impeachment. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App.

1986); Arebalo v. State, 143 S.W.3d 402, 407 (Tex. App.—Austin 2004, pet. ref’d).

“This is because evidence of prior convictions and extraneous bad acts ‘is inherently

prejudicial, tends to confuse the issues in the case, and forces the accused to defend

himself against charges which he had not been notified would be brought against

him.’” Arebalo, 143 S.W.3d at 407 (quoting Albrecht v. State, 486 S.W.2d 97, 100

(Tex. Crim. App. 1972)).

       Error in the admission of evidence is non-constitutional error subject to a harm

analysis under Texas Rule of Appellate Procedure 44.2(b). Jabari v. State, 273

                                          12
S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also Tex. R.

App. P. 44.2(b). We disregard any non-constitutional error that does not affect the

defendant’s substantial rights. Tex. R. App. P. 44.2(b); Jabari, 273 S.W.3d at 754.

“A substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We will not overturn

a conviction for non-constitutional error if the court, after examining the record as a

whole, has fair assurance that the error did not influence the jury or had but slight

effect. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).

“The improper admission of evidence does not constitute reversible error if other

properly admitted testimony proves the same facts.” Id.

      Several witnesses testified Pete initiated an argument with C.C. that escalated.

Pete’s ex-mother-in-law explained that while Pete contacted her several times and

expressed he was both fearful and angry after receiving the alleged threats against

him and his family, Pete told her he would shoot them if he or his family were

threatened. It is undisputed Pete shot J.S.; the case hinged on whether Pete felt he

had to shoot J.S. out of necessity, which was dependent upon which version of events

the jury believed leading to Pete being present at M.D.’s house when the shooting

occurred.

                                          13
      Based on the record as a whole, while Pete provided brief testimony about the

details of his prior convictions, which included several details that were undisputedly

not objected to, the State presented strong evidence of the charged offense. We

conclude the trial court’s error in allowing the State to elicit details of Pete’s prior

convictions did not have a substantial or injurious effect in determining the jury’s

verdict and did not affect Pete’s substantial rights. See Tex. R. App. P. 44.2(b);

Jabari, 273 S.W.3d at 754 (holding that trial court’s error in allowing details of

defendant’s prior convictions was harmless because “[a]mple other evidence existed

on which the jury could have found [defendant] guilty”). We overrule Pete’s second

issue and affirm the trial court’s judgment.

      AFFIRMED.



                                                      _________________________
                                                           CHARLES KREGER
                                                                Justice

Submitted on April 6, 2018
Opinion Delivered September 26, 2018
Do Not Publish

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




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