Affirmed and Opinion Filed December 23, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00258-CR

No. 05-21-00259-CR

ROBERT JESSE MEYERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court

Collin County, Texas

Trial Court Cause Nos. 380-82877-2020 & 380-82495-2020

MEMORANDUM OPINION

Before Justices Myers, Pedersen, III, and Garcia

Opinion by Justice Myers

A jury convicted appellant Robert Jesse Meyers of aggravated assault with a 

deadly weapon and possession of methamphetamine in an amount of more than one 

gram but less than four grams. The trial court assessed punishment, pursuant to an 

agreement between the parties, at ten years’ imprisonment for the aggravated assault 

and five years for the possession of methamphetamine conviction. In one issue, 

appellant challenges the admissibility of extraneous offense evidence. We affirm. 

DISCUSSION

In his sole issue on appeal, appellant argues the trial court erred in allowing 
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into evidence an extraneous offense of a prior assault, and that this testimony was 

inadmissible under rules of evidence 404(b) and 403. 

We review a trial court’s ruling on the admissibility of evidence under an 

abuse of discretion standard, and we must uphold the trial court’s ruling if it was 

within the zone of reasonable disagreement. Wells v. State, 611 S.W.3d 396, 427 

(Tex. Crim. App. 2020).

Rule 404(b) prohibits the use of evidence of a crime, wrong, or other act to 

prove a person’s character to show that a person acted in accordance with the 

character on a particular occasion. TEX. R. EVID. 404(b)(1). The rule provides that 

the evidence “may be admissible for another purpose, such as proving motive, 

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

lack of accident.” Id. 404(b)(2). The exceptions listed in rule 404(b)(2) “are ‘neither 

mutually exclusive nor collectively exhaustive.’ There are numerous other uses to 

which evidence of criminal acts may be put.” Montgomery v. State, 810 S.W.2d 

372, 377 (Tex. Crim. App. 1990) (quoting MCCORMICK ON EVIDENCE § 190 at 558 

(3d ed. 1984)); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). 

One well-established rationale for admitting evidence of extraneous misconduct is 

to rebut a defensive theory that negates one of the elements of the offense. De La 

Paz, 279 S.W.3d at 343. “‘When the accused claims self-defense or accident, the 

State, in order to show the accused’s intent, may show other violent acts where the 

defendant was an aggressor.’” Velasquez v. State, No. 03-19-00499-CR, 2021 WL 
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2878278, at *3 (Tex. App.—Austin July 9, 2021, pet. ref’d) (mem. op., not 

designated for publication) (quoting Lemmons v. State, 75 S.W.3d 513, 523 (Tex. 

App.—San Antonio 2002, pet. ref’d)).

Even evidence that is admissible under rule 404(b) may be excluded if its 

probative value is substantially outweighed by a danger of unfair prejudice, 

confusion of the issues, misleading the jury, undue delay, or needlessly presenting 

cumulative evidence. TEX. R. EVID. 403; Hernandez v. State, 390 S.W.3d 310, 323 

(Tex. Crim. App. 2012); Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 

1999); see also Harris v. State, 572 S.W.3d 325, 334 (Tex. App.—Austin 2019, no 

pet.). “The probative force of evidence refers to how strongly it serves to make the 

existence of a fact of consequence more or less probable.” Gonzalez v. State, 544 

S.W.3d 363, 372 (Tex. Crim. App. 2018).

Relevant evidence is presumed to be more probative than prejudicial. 

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence 

against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State, 

420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all 

prejudicial evidence; it focuses on the danger of unfair prejudice. State v. Mechler, 

153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly prejudicial if it 

has the capacity to lure the factfinder into declaring guilt on a ground other than 

proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex. 

Crim. App. 2003). A trial judge has substantial discretion in balancing probative 
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value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. 

App. 2006).

Probative value is the measure of how strongly the evidence serves to make 

more or less probable the existence of a fact of consequence to the litigation, coupled 

with the proponent’s need for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 

641 (Tex. Crim. App. 2006). Unfair prejudice refers to a tendency to tempt the jury 

into finding guilt on an improper basis, such as an emotional one. Id. Confusion of 

the issues refers to “a tendency to confuse or distract the jury from the main issue in 

the case.” Id. When undertaking a rule 403 analysis, a trial court balances: 

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 

issues, (5) 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. 

Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018) (quoting 

Gigliobianco, 210 S.W.3d at 641–42); see also Baker v. State, No. 05-19-01051-CR, 

2021 WL 1826829, at *2 (Tex. App.—Dallas May 7, 2021, pet. ref’d) (mem op., not 

designated for publication). In practice, however, “these factors may well blend 

together.” Gigliobianco, 210 S.W.3d at 642. 

Appellant was indicted for aggravated assault with a deadly weapon (05-21-

00259-CR) and possession of methamphetamine in an amount of more than one 
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gram but less than four (05-21-00258-CR). In the aggravated assault indictment, 

appellant was accused of intentionally, knowingly, and recklessly causing bodily 

injury to Jason Roshto by striking him with a sword, and that appellant used or 

exhibited a deadly weapon (a sword) during the assault. 

A hearing was held out of the jury’s presence to determine the admissibility 

of the prior assault between the appellant and the complainant. Appellant objected 

to the State’s expressed intent to ask Roshto about the prior knife fight, which 

occurred on May 29, 2016. The State argued that evidence appellant had stabbed 

Roshto with a pocketknife in the left arm (the same arm injured in the instant offense) 

and that the injury required surgery was relevant to show Roshto’s state of mind and 

the past relationship of the two men. It also argued that the evidence was important 

to rebut any claim of self-defense or accident. Although the trial court suggested it 

did not believe self-defense had been raised, it ruled the evidence was admissible to 

show the circumstances around the offense and the relationship between the two 

men. The trial court also made a finding under rule 403 that the probative value of 

the evidence was not substantially outweighed by the danger of unfair prejudice. 

The court overruled appellant’s objections under rules 404(b) and 403. 

Appellant contends on appeal that the extraneous offense served only to show 

he was guilty of the charged offense because he acted in conformity with his 

character, which is prohibited under 404b. He argues there was no dispute at trial 

that he stabbed Roshto, so the extraneous evidence was unnecessary to prove that. 
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Also, he testified after the extraneous evidence was admitted that the sword was a 

reaction to the lunge by Roshto with a knife and that appellant feared for his life. 

Thus, the possible issues of intent and self-defense were raised after the extraneous 

evidence had been admitted. 

However, the record shows appellant raised the issue of self-defense at voir 

dire, telling the panel as follows: 

Here’s another concern I’ve got, in this case we’re talking about a 

sword being used. I think a lot of people, when they hear that, might 

want to take a step back and say that’s kind of weird. I believe there 

will be a question of self-defense that comes up in this case, in that case 

the sword would be the instrument of self-defense. Is anyone hearing 

a sword might be involved in this case says I don’t believe you could 

use that in self-defense? 

Furthermore, prior to the admissibility hearing, appellant raised Roshto’s combative 

behavior with paramedics during cross-examination of a police officer, suggesting

Roshto may have been the aggressor in the argument. Defensive theories presented 

during voir dire, opening statement, and during cross-examination can open the door 

to extraneous offense evidence. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. 

App. 2016); Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). Because 

the disputed evidence rebutted appellant’s defensive theory, it had relevance other 

than character conformity, and the trial court did not, therefore, abuse its discretion 

in admitting the testimony about the prior knife fight. 

Regarding rule 403, the evidence of a prior knife fight between the same two 

men that caused a severe injury to the same arm that was injured in the indicted 
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offense was rationally related to the elements of the indicted offense and the issue 

of self-defense. It showed the prior relationship between appellant and Roshto;

showed appellant had been the aggressor and injured Roshto in the past; and 

explained why Roshto sought to end the altercation when he saw his wrists were 

bleeding. Furthermore, the trial court included a limiting instruction on the jury’s 

use of the evidence of the May 2019 knife fight in the jury charge. This minimized 

the risk of the jury making an impermissible inference that the extraneous offense 

was evidence of appellant’s conformity with that behavior or character. See 

Hernandez v. State, No. 01-16-00741-CR, 2018 WL 1473990, at *3 (Tex. App.—

Houston [1st Dist.], no pet.) (mem. op., not designated for publication) (citing Lane 

v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)). Furthermore, the time the 

State needed to develop this testimony was minimal because the State presented the 

evidence of the prior knife fight through its direct examination of Roshto. His entire 

direct examination testimony spans approximately forty-four pages, and the 

testimony regarding the May 2019 knife fight is approximately six pages. The brief 

mention of the prior knife fight did not distract the jury from consideration of the 

indicted offense.

The trial court could have reasonably concluded the probative value of the 

disputed evidence was not substantially outweighed by the danger of unfair 

prejudice or the other rule 403 considerations. The court did not, accordingly, abuse 

its discretion in admitting the evidence. We overrule appellant’s issue.
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The trial court’s judgments are affirmed.

210258f.u05

210259f.u05

Do Not Publish

TEX. R. APP. P. 47.2(b)

/Lana Myers//

LANA MYERS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ROBERT JESSE MEYERS, 

Appellant

No. 05-21-00258-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 380-82877-

2020.

Opinion delivered by Justice Myers. 

Justices Pedersen, III and Garcia 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 23rd day of December, 2022.
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ROBERT JESSE MEYERS, 

Appellant

No. 05-21-00259-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 380-82495-

2020.

Opinion delivered by Justice Myers. 

Justices Pedersen, III and Garcia 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 23rd day of December, 2022.