           NUMBERS 13-18-00258-CR & 13-18-00259-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


GEORGE ANDREW DAY,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 156th District Court
                          of Bee County, Texas.


                       MEMORANDUM OPINION

            Before Justices Benavides, Hinojosa, and Tijerina
               Memorandum Opinion by Justice Hinojosa

      A jury convicted appellant George Andrew Day of aggravated assault with a deadly

weapon on a family member, a second-degree felony, and felon in possession of a

firearm, a third-degree felony. See TEX. PENAL CODE ANN. §§ 22.02(A)(2), 46.04(A). As a

repeat felony offender, Day’s sentence for the aggravated assault was enhanced to a
first-degree felony and he received a 35-year sentence in the Texas Department of

Criminal Justice with a $10,000 fine. See id. § 12.42(b). For the felon in possession

offense, the jury assessed a ten-year prison sentence with a $5,000 fine. The trial court

ordered the sentences to run concurrently.

       By five issues which we have re-ordered, Day asserts the trial court erred by

admitting voicemail messages into evidence which were: (1) improper extraneous offense

evidence; (2) more prejudicial than probative; and (3) improperly noticed. Day also claims

that (4) there was insufficient evidence for the felon in possession offense and (5) the trial

court improperly denied his request for a self-defense jury instruction. We affirm.

                                    I.     BACKGROUND

       Day had an eighteen-year romantic relationship with the complainant in this case,

Nicole Bialkowski. The couple had three sons. On August 31, 2017, Bialkowski testified

that she returned home from her job as an elementary school teacher to find a suitcase

of her children’s clothing by the door of the couple’s Corpus Christi home. Bialkowski

claimed that Day threatened to strangle and kill her if she did not leave the house.

Bialkowski quickly told her sons to pack their remaining possessions into garbage bags.

Bialkowski also took her two guns before she left.

       After staying in her car and in motels for about two weeks, Bialkowski and her sons

moved into an apartment in Beeville, Texas, the city where she taught and where her

children attended school. Between August 31 and September 8, 2017, Day made several

attempts to communicate and/or locate Bialkowski and the children, but Bialkowski

refused his calls. Day left a series of voicemail messages on Bialkowski’s phone during


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this time, which included messages like the following:

      •   “Well I hope it’s worth it . . . I’m going to f–king break your f–king
          neck . . . You’re not going to live . . . .”

      •   “Well, you leave me no f–king choice . . . . I’m gonna’ come up there to
          your work tomorrow and I’m going to . . . pull your ass out of your f–king
          classroom.”

      •   “The next time I see you, you’re going to be f–king six feet deep.”

      •   “I will come up there to your f–king work and I will yank your f–king ass
          out. You better f–king know that, motherf–ker. Merry Christmas and
          Happy F–king New Year . . . .”

      •   “Now, you’ve pissed me off, okay? . . . Now, the next time I f–king see
          you I am gonna’ . . . do . . . something that you don’t want me to do.”

      •   “You really f–king pissed me off, okay? You better call the police
          because I’m going to f–king break your f–king ass . . . .”

      •   “Okay, I know where to find you, so that being said, I’m going to come
          get you.”

      Bialkowski testified that she did not listen to these voicemails until after she moved

into her new apartment on September 8, 2017. She also testified that she did not listen

to all of them. After her boys were settled, she contacted Day. She took the children to

visit their father on the weekends of September 8-10, 2017 and September 15-17, 2017.

During the latter weekend, Bialkowski stayed with the children at their father’s house in

Corpus Christi; the record shows that she slept on the couch with her youngest son.

      Bialkowski gave Day the address to her Beeville apartment, and he came to visit

on Monday, September 18, 2017. He spent the night and left the next morning when the

boys went to school. He returned on Tuesday, September 19. Bialkowski testified that

she argued with Day about him staying in her apartment that day, but she eventually

                                            3
relented. He spent the night again and left the next morning.

      On Wednesday, September 20, 2017, Day returned to the Beeville apartment. This

time, though, Bialkowski did not want to let him in. Day knocked and asked to see the

children. He knocked louder and tried opening the door. He then started kicking it and

yelling obscenities. Bialkowski retrieved her gun and called 9-1-1 to report that Day was

trying to break into her apartment. She stood at her bedroom door with her gun aimed at

the front door. She testified that her older sons were screaming hysterically and she told

them to hide in the closet (her youngest son was asleep). Day then shot the lock on the

door. Bialkowski thought it was a rock, but her oldest son told her he believed it was a

gunshot. Day then kicked on the door until it busted open. He came in the apartment and

Bialkowski rushed at him with her gun. Day was not brandishing a gun when he entered,

but when he saw Bialkowski armed, he responded, “So you want to play it that way?” He

reached behind his back and pulled out a gun.

      As Day raised his gun over Bialkowski’s head, she lowered her gun and used her

hand to try to push Day’s gun behind her back. Day’s gun fired when she pushed it behind

her. A single shot hit the couch and wall in the apartment. Bialkowski ran out of her

apartment, with her oldest son following her. Police arrived and arrested Day.

                                 II.    THE VOICEMAILS

A.    The Voicemails as Improper Extraneous Offense Evidence

      By his first issue, Day claims that the trial court abused its discretion when it

admitted the voicemails from August 31 and September 8, 2017 into evidence over

objection. He claims it was improper extraneous offense evidence.


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       1. Standard of Review and Applicable Law

       Texas Rule of Evidence 404(b) sets forth that an individual should be tried for his

charged conduct rather than for his general bad character. See Montgomery v. State, 810

S.W.2d 372, 387 (Tex. Crim. App. 1990) (en banc). The rule, along with its exceptions,

provides:

       (b) Crimes, Wrongs, or Other Acts

       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is 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.

       (2) Permitted Uses; Notice in Criminal Case. This evidence may be
           admissible for another purpose, such as proving motive, opportunity,
           intent, preparation, plan, knowledge, identity, absence of mistake, or
           lack of accident. On timely request by a defendant in a criminal case,
           the prosecutor must provide reasonable notice before trial that the
           prosecution intents to introduce such evidence—other than that arising
           in the same transaction—in its case in chief.

TEX. R. EVID. 404(b).

       We review a trial court’s admission or exclusion of evidence under an abuse of

discretion standard. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to

any guiding rules or principles. See Montgomery, 810 S.W.2d at 380. When considering

a trial court’s decision to admit or exclude evidence, we will not reverse the trial court’s

ruling unless it falls outside the “zone of reasonable disagreement.” Id. at 391; see also

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

       In addition, we note that the court of criminal appeals has distinguished between

two types of contextual evidence: (1) “same transaction” contextual evidence and (2)


                                               5
“background” contextual evidence. Pollard v. State, 255 S.W.3d 184, 189 (Tex. App.—

San Antonio 2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009) (quoting Mayes v.

State, 816 S.W.2d 79, 86–87 (Tex. Crim. App. 1991)). “Same transaction” contextual

evidence is admissible when “several crimes are intermixed or connected and testimony

regarding one crime cannot be given without showing the other crimes, or it would be

impracticable to do so.” See id. It is admissible “only to the extent that it is necessary to

the jury’s understanding of the offense.” McDonald v. State, 179 S.W.3d 571, 577 (Tex.

Crim. App. 2005).

       On the other hand, “background” contextual evidence should not be admissible if

it is offered simply as background evidence that helps the jury understand the offense,

but which otherwise conflicts with the proscription of Rule 404(b). Pollard, 255 S.W.3d at

189. This is because when extraneous offenses are introduced as background evidence,

“there is a real danger that they will be viewed by the jury as impermissible ‘character

evidence.’” Id.

       2. Analysis

       Here, Day argues that the trial court erred when it admitted the voicemails as

“background” contextual evidence. We disagree. The voicemails were proper “same

transaction” contextual evidence and demonstrated Day’s intent to harm his ex-partner

and the mother of his children, Bialkowski. Intent is a proper reason for admission under

rule 404(b). See TEX. R. EVID. 404(b) (listing “intent” along with “motive, opportunity, . . .

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”).

       Day counters that the voicemails were too attenuated from the date of the offense


                                              6
to be relevant: Day left the voicemails between August 31 through September 8, 2017,

and the underlying offense occurred on September 20, 2017. Again, we disagree. The

voicemails, which occurred only weeks before the crime, demonstrated how Day

intimidated Bialkowski over the phone. For example, Day stated he intended to “break

[Bialkowski’s] neck,” that she was not “going to live,” and that he would put her “six feet

deep.” The voicemails also gave context to why Bialkowski felt she had to retrieve a gun

when Day began pounding her door, fearing Day intended to carry out his threats.

       Day further argues that “none of the messages reference breaking down a door or

shooting Bialkowski” and that “there is no reference to a gun at all.” He claims, “there is

nothing similar between [the] recorded messages and the September 20 altercation.”

This argument is unpersuasive. Day threatened her with serious bodily harm, and his

kicking and shooting of the door knob relayed the meaning that his threats were not

empty. In light of the foregoing, we conclude the trial court’s decision to admit the

voicemails as “same transaction” evidence was not outside the “zone of reasonable

disagreement.” See Montgomery, 810 S.W.2d at 380. We overrule this issue.

B.     The Voicemails as Unfairly Prejudicial

       By his second issue, Day argues that the voicemails’ probative value was

substantially outweighed by their prejudicial effect. As a sub-matter to this issue, Day also

claims the trial court did not properly conduct a balancing test under Texas Rule of

Evidence 403.

       1. Applicable Law

       Rule 403 provides as follows:


                                             7
       The court may exclude relevant evidence if its probative value is
       substantially outweighed by a danger of one or more of the following: unfair
       prejudice, confusing the issues, misleading the jury, undue delay, or
       needlessly presenting cumulative evidence.

See TEX. R. EVID. 403. The court can consider the following factors in a Rule 403

balancing test:

       (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
               which the jury will be distracted from consideration of the indicted
               offense; and

       (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.

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Again, we review the

trial court’s admission or exclusion of evidence under Rule 403 under an abuse of

discretion standard. See Martinez, 327 S.W.3d at 736.

       2. Analysis

       Day asserts that the trial court did not conduct a proper balancing test based on

the following exchange, wherein the court admitted it had not listened to the voicemails

in question:

       DEFENSE: Also[,] I will lodge an objection under 403 that it’s [the
                admission of the voicemails] more prejudicial than probative
                to intent on the State.


                                              8
COURT:       Well, I haven’t heard it, so you know, that is a 403 objection.
             That is a different objection. (Emphasis added).

DEFENSE: Yes, sir.

COURT:       I have to conduct a balancing test.

DEFENSE: Yes, sir.

COURT:       But you haven’t filed a 403 objection. You filed a 404
             objection, so I’m going to overrule your objection at this time.
             If they have got audios of the communications between these
             parties that is not going to be uncontroverted that these are
             things that were said between these folks, then I don’t have a
             problem with it.

             If you got the information or if he recorded or kept her
             communications with him, it’s relevant and germane to
             coming to this, but what we’re not going to be talking about is
             something that happened six months before that, nine months
             before that, two years ago or anything else.

STATE:       Right.

COURT:       It is going to be tied to the—relative to this case that is on trial,
             because as I understand 404(b) requests, it has to do with this
             crime, but the relationship of these parties leading up to this
             crime is—or alleged crime is, I find, part of the crime, and
             when you express an intent to hurt somebody and then show
             up at their house with a gun, I think the jury gets to hear about
             it.

DEFENSE: And under 403 my objection is also overruled, Judge?

COURT:       Do you have a 403 motion?

DEFENSE: I don’t—I don’t know that I have to file that in writing. I think
         you can—

COURT:       Then make your objection, but, again, I’m not in the middle of
             trial, counsel—how many pretrials have y’all had?

DEFENSE: Two.


                                       9
      COURT:        Then you had your chance to file your pretrial motions and not
                    do this on the jury’s time.

                    Overruled. These items only potentially do you get to get into
                    at some other time other than the communications between
                    these parties basically in the 60 days leading up to the event
                    in question.

      The record shows, however, that the trial court did in fact conduct a balancing test

on the record. The court, although it shared its preference that the Rule 403 objection

should have been urged in a pretrial motion instead of during trial, explained that

communications between Day and Bialkowski sixty days prior to the offense in question

were relevant to the question of intent. See TEX. R. EVID. 404(b). The court pronounced

that, “when you express an intent to hurt somebody and then show up at their house with

a gun, I think the jury gets to hear about it.” Because the voicemails served “to make a

fact of consequence more or less probable”—that Day intended to harm and then carried

through with that objective—the trial court did not abuse its discretion in ruling that the

voicemails were more probative than prejudicial. See Santellan, 939 S.W.2d at 169; TEX.

R. EVID. 403. We overrule this issue.

C.    Lack of Proper Notice

      By his third issue, Day argues that the State failed to timely notify him that they

would be using the voicemails. Rule 404(b)(2) provides that “on timely request by a

defendant in a criminal case, the prosecutor must provide reasonable notice before trial

that the prosecution intends to introduce such evidence—other than that arising in the

same transaction—in its case-in-chief.” Id. R. 404(b)(2).

      According to Day, the State filed a notice of extraneous conduct five days before


                                            10
trial and the notice did not mention the voicemails at all. The State, on the other hand,

contends that no notice was necessary because the voicemails were “arising in the same

transaction.” Because we held earlier that the voicemails “arose in the same transaction,”

we overrule this issue. See id.; see also Pollard, 255 S.W.3d at 189; Mayes, 816 S.W.2d

at 86–87.

                               III.   LEGAL SUFFICIENCY

      Next, Day argues that there was insufficient evidence on two issues: (1) his prior

conviction of involuntary manslaughter, which enhanced his punishment, and (2) that he

was in possession of a weapon as a former felon.

   A. Applicable Law

      When reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict and determine whether a rational factfinder could have found

the elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d

743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19,

(1979)). We consider all evidence in the record, whether it was admissible or

inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). We also

consider direct and circumstantial evidence, as well as any reasonable inferences that

may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007).

      Under this review, we do not re-evaluate the weight and credibility of the evidence

or substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of


                                           11
witnesses and of the weight given to their testimony, any conflicts or inconsistencies in

the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103,

111 (Tex. Crim. App. 2000). To be entitled to a reversal of conviction on an insufficiency

of the evidence claim, appellant must show that no rational jury could have found all of

elements of the offense beyond a reasonable doubt. Id.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.

Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en

banc)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the offense for which the

defendant was tried. Id.

   B. Analysis

   1. Day’s Prior Conviction

       In his first sub-issue, Day argues there was insufficient evidence to prove that he

had previously been convicted of involuntary manslaughter, which enhanced his

punishment range.

       The record reflects that Day told Bialkowski he had previously committed

involuntary manslaughter in “the late eighties” in “Corpus Christi, Texas.” Bialkowski

testified that Day shared he served five years for this offense in a Texas penitentiary. The

State then offered State’s Exhibit 20 into evidence, which was certified plea papers from

Cause No. 89-CR-2479 out of the District Court for Nueces County, Texas, the State of


                                             12
Texas vs. George Day, for involuntary manslaughter. Day’s counsel objected, claiming

there was improper foundation for the admission of the exhibit. Specifically, counsel

claimed that there was no sponsoring witness to testify as to Day’s fingerprints or identity.

Bialkowski then verified Day’s date of birth on the document and testified that the

signature on the judgment was Day’s signature. The court admitted the exhibit.

       To prove a prior felony, the State must show beyond a reasonable doubt that: (1)

a prior conviction exists and (2) the defendant is linked to that conviction. See Flowers v.

State, 220 S.W.3d 919 (Tex. Crim. App. 2007). The State can prove this with

“documentary proof (such as a judgment) that contains sufficient information to establish

both the existence of a prior conviction and the defendant's identity as the person

convicted.” Id.

       Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational factfinder could have found that Day had previously been convicted of involuntary

manslaughter. See Gear, 340 S.W.3d at 746; Jackson, 443 U.S. at 318–19. Bialkowski’s

testimony regarding her previous discussion with Day about the offense, as well as her

confirmation of his signature and correct date of birth on the plea documents, support this

conclusion.

   2. Possession

       In his second sub-issue, Day argues there was legally insufficient evidence to

establish that he was a felon in possession of a firearm. Texas Penal Code § 46.04

provides that:

       (a)    A person who has been convicted of a felony commits an offense if
              he possesses a firearm:

                                             13
              (1) after conviction and before the fifth anniversary of the person's
                  release from confinement following conviction of the felony or the
                  person's release from supervision under community supervision,
                  parole, or mandatory supervision, whichever date is later; or

              (2) after the period described by Subdivision (1), at any location other
                  than the premises at which the person lives.

TEX. PENAL CODE ANN. § 46.04.

       Day’s argument focuses on the second prong of § 46.04—whether Day possessed

a firearm “other than the premises” at which he lived. See id. Bialkowski testified that she

arrived at her Corpus Christi home one day and saw her children’s clothing in a suitcase.

According to her, Day threatened to strangle and kill her if she did not leave the house.

She and her children put their remaining belongings in garbage bags and left. Bialkowski’s

testimony revealed that she lived with her three sons in her car and in local motels for two

weeks until she leased a new apartment in Beeville, Texas. Although the couple later

coordinated visitations for the children, Day did not have a key to Bialkowski’s new

apartment. He spent the night there for two nights only, and the couple argued about

whether Day would be welcome into the Bialkowski’s apartment after the second night.

       On the day of the underlying offense, Day pounded on, kicked, and ultimately shot

the lock on the door because he did not have a key to the apartment and Bialkowski would

not let him in. Although Day did not initially brandish a gun when he entered the

apartment, he wielded it when Bialkowski approached him with hers. Day’s gun fired into

the couch and apartment wall when the couple struggled.

       Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational factfinder could have found that Day, a convicted felon, possessed a handgun at

                                             14
a location other than the premises where he lived. See Gear, 340 S.W.3d at 746; Jackson,

443 U.S. at 318–19. Day did not “live” at Bialkowski’s apartment as he forced Bialkowski

from the family home in Corpus Christi, did not sign any documents to lease the new

apartment in Beeville, did not have a key to the apartment premises, and only spent two

nights there. See generally Jones v. State, 263 S.W. 586 (1924); see also Luna v. State,

No. 05-93-00094-CR, 1994 WL 280247, at *4 (Tex. App.—Dallas June 23, 1994, no pet.)

(mem. op.) (holding that if a defendant is permanently separated from his spouse, the

residence of the spouse is not necessarily the defendant's “own premises” within the

meaning of the statute). We overrule this issue.

                          IV.      SELF DEFENSE JURY INSTRUCTION

       By his fourth issue, Day argues the trial court erred when it failed to charge the jury

with a self-defense instruction.

   A. Applicable Law

       “A defendant is entitled to a jury instruction on self defense if the issue [of self

defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached

or contradicted, and regardless of what the trial court may think about the credibility of the

defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). “When

reviewing a trial court’s decision denying a request for a self defense instruction, we view

the evidence in the light most favorable to the defendant’s requested submission.” Id.

“A trial court errs in denying a self defense instruction if there is some evidence, from any

source, when viewed in the light most favorable to the defendant, that will support the

elements of self defense.” Id.


                                             15
      However, “the use of force against another is not justified . . . if the actor sought

an explanation from or discussion with the other person concerning the actor’s differences

with the other person while the actor was carrying a weapon in violation of section 46.02.”

TEX. PENAL CODE ANN. § 9.31(b)(5)(A). Section 46.02 provides that a person commits the

offense of unlawful carrying of a weapon if the person intentionally, knowingly, or

recklessly carries on his person a handgun and is not on the person’s own premises or

premises under the person's control.” See id. § 46.02.

   B. Analysis

      Day claims he was entitled to the self-defense charge because he did not wield his

gun until he saw Bialkowski aiming her gun at him. The trial court denied Day’s request

and explained its position during the charge conference:

      I have wrestled with this issue over the evening hours as well as yesterday,
      and I just can’t be the judge that is going to give the self-defense charge to
      somebody that has made the telephone calls [Day] made apparently,
      showed up at somebody’s house, banged on the door, shot the doorknob,
      kicked the door down, and walked inside, and then was addressed by
      someone with a firearm and not shot himself. Having the right to defend
      himself after he has done those acts, if that is the law in Texas, I think I’m
      moving.

      So I’m not going to give that instruction to the jury, but your request is duly
      noted, and the 13th Court of Appeals or the Court of Criminal Appeals may
      get to tell me that I should leave.

      We agree with the trial court. Having previously found that there was sufficient

evidence to sustain Day’s conviction for a felon in possession of a weapon offense, Day

was not entitled a self-defense instruction when he arrived at an apartment where he did

not reside with a gun. TEX. PENAL CODE ANN. § 9.31(b)(5)(A); see also Luna, 1994 WL

280247, at *4. We overrule this issue.

                                            16
                                   V.     CONCLUSION

       We affirm the trial court’s judgment.


                                                       LETICIA HINOJOSA
                                                       Justice

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

Delivered and filed the
30th day of January, 2020.




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