Opinion issued March 21, 2024

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 23
- 00380
- CR

——————————— VICTOR HUGO JASSO , Appella nt

V. THE STATE OF TEXAS , Appell e e

On Appeal from the 228th District Court

Harris C o unty, Texa s Trial Court Ca se No. 1748699

MEMORANDU M OPINION A jury convicted Appellant Victor Hugh Jasso of the Class A m isdem e a nor
offense of criminal trespass of a habitation . The trial court assessed a sentence of

one year of incarceration in the H a rris County J ail . The trial court suspended the

se ntence and placed Jasso on community s upervision for two years. In a single2

issue, Jasso argues th e trial court erred by admi tting text messages sent by Jasso to the complainant ’ s mother , arguing the m e ss ages were mor e prejudicial than proba tive and they were e vidence of “ clearly extraneous offenses ” not relate d to the pre sent case.
Because the trial court did not abuse its discretion in admitting the text

m essages , and in any even t, admission of the te xt messages w as harmless, we
affirm the trial court ’ s judgment.
Back ground On November 24, 2021, Li z a Gonzalez and Jasso took their two children shopping for Thanksg iving o utfits

. After shopping, they w e nt out to dinner and
then returned to Gon za lez ’ s house. B y the tim e they got to G o nzalez ’ s house, she and Jasso had been arguing and he allegedly was drunk. Jasso “ barged ” in the house, took the packa ges from the shopping trip , and left.
Jasso returned several h ou rs later, a fter Gonzalez and the children were sleeping , and allegedly broke into the house. Gonzale z , who was awaken ed by a

“ loud bang, ” did not kno w at fi rst who was in the house, and she grabbed her gun.
When s he realized it was Ja s s o , she called 9

- 1

- 1.
Gonzalez told the 9

- 1

- 1 operator, “ T he father of my kids is here. H e bro ke into my house whi le I was sleeping. ” Gonzalez said, “ I ’m threatening to s h oot him
if he does not leave

. ” She tol d the operator Jasso “ alwa y s carries a g un on him ”3

but she did not see one at tha t moment. Gonzalez told the opera tor she had “no
idea ” how Jasso brok e in, but that “ h e ’ s threatening my life and my home. ”
Gonzalez c a n be heard calling Jasso a “ liar ” in response to his stating G o n za lez let
him in the house , 1 and she can be heard screaming at Jasso to get ou t of her ho use.
Jasso was arrested and in d icted for burglary of a habitatio n. 2 The indictment alleged that “ on or about November 24, 2021, ” Jasso “ did then and there unlawfully, w ith intent to commit an assault, enter [ed] a habitation owned by Liza Gonzalez, a perso n having a greater right to possession of the habitation than [Jasso] . . . without effective con sent of the C omplainant, namely without any

co nsent of any kind. ” Jas so pleaded not guilty, and the case proceeded to a jury
trial.

1 Although Jasso ’ s voice i s aud ible in the call , it is not p oss ible to unders tand most of what he is saying.
2 One com mits burgla ry if, w it ho ut the effective consent of the owner, the p erson

(1) ente rs a habi tation, or a building (or any portion of a building) no t the n op e n to the public, with intent to commit a fe lony, theft, o r an assault; or (2) remains concealed, with intent to commit a f el ony, theft, or an assault, in a building or habitation; or (3) ente rs a building or habitation and commits or attempts to commi t a f elony, theft, or an assault. T EX

. P ENAL C O DE § 30.02 (a)

.4 The Tria l
A. The Text Mess age s The State sought to admit t hirteen pages of screenshots of a text message exchange b etween Jasso and G o nzalez ’ s mother, Lisa Castillo , which concern ed
Jasso ’ s allege d prior burg lary of Gonzalez ’ s house in January 2 021 , t en months prior to the charge d b ur glary

. The exchange occurred after Castillo learned Jasso
was in G o nzalez ’ s home without permission, allegedly taking some of Gonzalez ’ s
pos s ession s
. Gonzalez was in M exico at the time. Among the texts w ere the following exchanges:
Jasso: St ay in ur own lane before u die . . .

Worry about ur own life before u die fucking with me.
Cast illo: Terrorist threat on my life.
Jasso: Freedom of s p eech i can say wtf i want
Castillo: Like I said you hav e one hour to take her gun and her

$400 10 iss ues 3 back to her apart ment. I have th e text m essage on baby Victor ’ s phone saying you wer e in her ap artment. You ’ re gonna go to [jail] for s t e aling her s t uff. And you r gonna go t o [jail] for threatening my life an d I don ’ t play

. . . Jasso: She owes me 80 0 get my mon ey back idgaf fuck u and

her. She asked for it barrowed so I got this ass coll ateral [] t he cops ai nt going do shit wat makes u fucking think I am scared l ol I swear I j ust laugh

3 Presumably, “10 is sues ” refers to “tennis shoes. ”5 Im takin my fridg e washer n dryer n tvs bitcj since u wana bu ut in s hit tha t do sent have shit to do with u BITCH. Call the cops im here now taking all my shit bitch
Castillo: You went into her apartment without perm i ssi on and

sto ld her stuff

. That is burglary of a habita ti on.
Jasso: [] I got a key dumb bi tch
Casti llo: And you threatened my life!!
Jasso: Ok lawyer [] should went to school for that

I sure did!!!
Castillo: No you don ’ t! You broke in! !

OK I ’ m no t waiting and not giving y ou an hour to take stuff back a nd calling the law right now in filing the pol ice r epo rt o n you and giving them all your information

. . . J asso: Pay me ot pay ben t aub bitch

Im here at her house getting my fridge and washer c a ll them shit im here now
U don t scare me lisa not on e fucking bit pay me wat ur dau f h ter owes me

. . . I w ill Cause her hell until dead idgaf!!!!!

Tell them I am armed and danger ous white chevy Silverado plated [] it s not a g ame an ymore im tired of ur and liza s shit

. . . u s hould have never disrespected me!!!6

After opening arguments and before the f irs t wi tness testified , Jas so objected
to the State ’ s proffer of the text messages : Mr. Hughes: 4 So , Judge , these text messages are completely

irrelevant to thi s case. W e would argue that they ’re high l y prejudicial. They ’re not probative. So we would ob

jec t to [Castillo ’ s] testim ony in its entirety pursuant to rules 403 and 404(b). I n particular, we would object to the text messages; and in addition to the 40 3, 404(b) ob jections, we ’ d also object on the basi s of relevance.
The Court: What is the releva nce ?
M s. A nderson: 5 Judge, the rel evance goes back to the defendant ’s

state of mind at the time of the offense that he ’s on trial for. So these text messages

. . . The w i tness is telling the defendant that he cannot be in t hat room. He ’s telling her tha t h e ’s in the room taking i tems from the complainant. It ’s ex tremely relevant. S o it go es to show his state of mind for this offense.
The Court: That he has no permissio n to be in the hom e?
Ms. A n de rson: Yes, without effective consent of the complainan t,

whic h he did not have on this day in January. Mr. Hughes: But the text messages , I believe , are between him

and Ms. Castillo. Ms. Castillo is not named in th e indictme nt in this case as the person with a gr e ater right to possession. S o we would argue tha t th e text message s are fu r ther irrelevant be cause they ’re

4 Mr. Hu gh es was Ja sso ’s trial counse l

. 5 Ms. Anderson was tr ial counsel for the State.7 not be tween Mr. J asso , the complainan t in this case, and Ms. Gonzalez

. The Court: What ’s her conn ec tion to th e home?
Ms. A n derson: She ’s t he complainant ’s mother. The offense

occurred back in Ja nuar y. The compla i n ant w as in a different country at the time and that ’s when the altercation w i th the defendant comes to the home. So that ’s why the compl ai nant ’s mot her text[ed] the defendant to tell him to leave.
The Court: Okay. I ’m going to allo w i t bu t again, keep it bri ef.
Ms. Anderson: Yes, Judge. I ’m not going to go into a

circumstance t hat she ’s not aware of. I ’m just going to talk

– The C ourt : Just to sh ow he went there without permi ssion?
Ms. A n derson: Yes, that ’s it.
The court overr ule d th e obje ction to the admission of the text messages. The
defense re

- u rged its objection 6 to the t exts pursuant to Rules 403 and 4 04 (b) during
Castillo ’ s testimo ny : Mr. Hug hes: . . . So, Your Honor, our fi rst objection would be

relevance. Second obje cti on w ould be hearsay. There has not been a proper foundation establish e d to show that these mes sages were sent by Mr. Jasso. And, a ga in, we renew our objection under rules 4 04 (b) as well as 403 and that the prejudicial effect outweighs any probative va lue s
. The C ourt: All right. Now, what was the purpose of these exhibit s ?

6 The defense also moved for a mi strial, w hi ch th e tr i al court denied. Jasso does not appeal the denial of his motion for mistrial.8

. . . Ms. Anderson: Judge , [] these text messages incl ud e essentially

threatening by the defenda nt and that goes [to] intent to commit assault.

. . . Mr. Hughes: And, Your Hon or, again, it ’ s our position I don ’t

think i t ’s been est ablishe d that t h ey ’re from the defendant. They ’re highly prejudicial. They a re evidence of extraneous offenses. The refore, they should not be admitted under rule 404(b). And as far as they ’re b ein g ad mitted to show that he didn ’t have permission, again , if Ms . Gonzal e z is not a party to the convers ation, I don ’t see how they ’r e relevant.

. . . T he Court: Okay. Stat e again the purpose for what you ’re

introducing these.
Ms. Anderson: Judge, I ’ m i ntro ducing the text messages between

this witness and th e defen dant to s how, one, his state of mind for

— at the time of this offense. A dditionally, his state of mind for the o ffense that ’ s on trial today. Thi s h appened within the same year and it ’ s extre mel y re levant to show that he disregarded going

—

he disregar ded the witness as well as when the complainant tells him to not go in the h om e, disregards what they say, and then ad ditionally does it again in th is off ense in November.
And if we ’ re looking at

— ad diti onally if we ’ re looking to 404(b), this goes to show the de fendant ’ s motive and intent as well as mistake of fact to show that t he defendant is going into the9 home with t he intent to commit assault. And I h ave to

— that ’ s my burden to prove that he ha d t he i ntent to commit assault and this goes to show part o f that.
T he Co u rt: Okay. But on this occasion, the complainant

wasn ’t ther e, right?
Ms. Anderson: Correct.
The Cou rt: And what is your objection?
Mr. Hughes: First and foremost, Your Honor, th is is c lassic

404(b) and 403 evidence. We ’ d object that thi s is ev idence o f extraneous off enses that are not related to the offense on tr ial. We argue that these

— And for the rec ord we ’ re objecting to all 13 pages of Exhibit 1. Also under rule 403, these tex t me ssages are highly prejudicial and our

— we also object that t hey ’ re i r relevant i n that they ’ re allegedly between Mr. Jasso and Ms. C astillo and not between Mr. Jasso and Ms . Gonzalez, who ’ s the complainant. W e ’ d also argue that they ’ re hearsay and tha t a pro per predicate or foundation has not yet been establi shed to even sh o w that thi s phone number belongs to Mr. Jasso.
The C ourt: O ka y. Now, you ’re cla i ming that this is

ad missible und er 404(b)(2) for some ot her purpose such as opportunity, intent, pr epa rati on , plan, knowledge , and so forth?
Ms. Anderson: Ye s, Your Honor. And the text messages relate to

the complai n ant. He puts he r name in these text messages
. And, so, I think those are extremely relevant. While there ’s always some, you know, senti men t fo r evidence being prejudicial, that10 doesn ’t outweigh the pro bative n a ture. It ’s not unfairly prejudicial at this point.
The Cou rt : What is a similar offense, allegedly s omething that

arguably is a burglar y? Mr. Hughes: Well, I guess, Your Honor, o ne thin g I would also

like to point out, I think that this first

— t he incid e nt they ’ re referring to in January when Mr. Jasso was charge d, 7 I believe that the allegation was he e n tered with the intent to commit the ft and not to commit assault. And, so, I wo uld arg ue that that renders this evidence further irrelevant . I don ’ t agre e they ’ re close in time. There ’ s ten months difference betwee n January and November, 2021. So they ’ re r e mote. And, again, I think the offen se perhaps would be terroristic threat cont ain ed
w ithin these messages, assault by threat. Those are cl early e xtraneo u s offenses that don ’ t relate to the case that ’ s on trial.

. . . The Court: I ’m making my ruling th a t these are admissibl e

under 404(b)( 2) for another purpose such a motive, oppor tun ity, intent, preparation, plan, knowle dge, identity, abse nce of mistake , or lack of accident. A n d I ’m also finding that the probati ve value is not outweighed by the prejudi c i al effect.
B. The W i t nesses Three witnesses testified for the State during the gu ilt innoc ence p hase of the
trial

. T he de fense d id not c all any witnesses during the guilt innocence phase

.

7 Jasso was not charged in co nn ec tion with any threat s made in the January 2021 texts

.11

1. Lisa Cas ti llo
C astillo is G o nzalez ’ s mother. According to Castillo, o n January 24, 2021, her daughter, who was in Mexico , called to tell her Jas so “ w en t into her house and
h e stole her gun an d her tennis shoes. ” After talking to Gonzalez, C as tillo texted
Jasso and t old him he had o n e hour to take Gonzalez ’ s gun an d shoes back to her
house

. The jury was shown thirteen pages of screenshots from Ca sti llo ’ s phone of
her text exchange with Jasso. Castill o test ified Jasso was not charged with mak ing

a thre a t in connection with the text messages.
2. Liza G o nzalez
G onzalez testified that she and Jasso, th e father of her children, ended their

r elat io nship ab out two years prior to the incident at issu e but were “ trying to
coparent

. ” Gonzale z testified that on November 24, 2021, she and Jasso took their

two children , who were ten and twelve years ol d at the time , shopping for Thanksgiving outfits. After sh opp ing, they had dinner. When they r eturned to
Gonzalez ’ s ho me , she and Jasso “ basically were already arguing

. ” The argument began in the car and ended outs ide her home. She said Jasso was drunk and

“ a ctin g a ggressive. ” The argument ended by his “ cu ss i ng at my kids an d telling them you want to tell your mom things, well, fuck y ’ all. ” He “ barged ” in the house, took the clothes they had just purchased for the children , and left. According to Gonzalez, w h en he left, he “ was ag gressive. He was mad. H e w as12

just maki ng threats as far as, like, fuck y ’ all. I don ’ t want th ose kids . . . just things
like that. ”
After leaving , Jasso “ continued to make threats ” by phon e and p ossibly by

texts.
Gonzalez t esti fied that she and th e children went inside the ho use , locked the door, and she fell asleep with her daughter while watching a movie. She was

“ awakene d by a loud bang ” sometime between 1 and 2 in the morning

. Her daught er began to screa m and Gonzalez grabb ed he r gun. “ I felt in fear. I had no
idea. S o me body just b r oke into my home. ” She testified tha t she “ jumped up, grabbed my gun, and . . . at this point, my adrenaline is high. I p ulle d it on

— you know, I put it o n whoever was b reaking into my home

. ” W h en s he realized Jasso was the person in her hou se , she call ed 9

- 1

- 1.
A r ecording of the 9

- 1

- 1 call was admitted into evidence. 8 Gonzalez
testified that d urin g th e 9

- 1

- 1 call , Jasso was “ v er y aggressive

. ” He was “ yel ling.
T hrowing things. ” He yelled that “ he lived there. He [was] just ca l ling me names,
that I was gonna regre t calling the cops. ”
Gonz alez testified that Jasso “ never ” lived a t her h ome. He occa si onally spent th e night there, sta ying on the sof a or in a child ’ s bedroom. A ccording to

8 Jasso object ed to the admission of the 9

- 1

- 1 re cording as h earsay , imprope rly authenticated, irrelevant , and violative of Ru l e s of Eviden ce 4 03 an d 404 (b)

. The trial court ov er ruled the objection . Jasso does not appeal the admission of the 9

- 1

- 1 recording.13

Gonzalez , Jasso “ never had any kind of permi ssi on to stay t he night or to come
back. ” E ven though he spent the previou s n ig ht at her home, she testified , J asso did not have pe rmission to stay a t h er home on November 24, 2021. When she grabbed her gun, she did not kno w who had entered her house.
On ce she reali zed it was Jasso, she called 9

- 1

- 1. Sh e pointed her gun at him an d
told him she would sho ot him “ [b]eca use [she] felt very t hreatened by him. ” S he
testified that she was “ so an gry and fed up with him. ” Accordi ng to G o nzalez, he
threw a bo ttl e of water a t he r and t h en h e went downstairs , threw th ings from her
k itchen island , and ki ck ed her dog.
She testified that Jasso al ways carried a gun and threatened her life the night
of his arrest

. W hen the police arriv ed, “ he contin u ed t o be

— again , h e ’ s ver y
pe rsistent an d aggressive and he just co ntinued to say things like they ’ re not gonna do shit, claimed he lived there and to throw things around in my home. ” The jury was shown a picture of the front door fram e, which showe d dam age that , accord ing
to Gonza le z, had not been there before that nigh t. W hen she came downstairs , t he
door was wide open , and it had been kicked in

. 9
Accor ding to Gonzalez, the January 2021 text messages between h er m other
and Jasso “ were about him breaking in to my home ” a nd “ thre at e n ing her . . . jus t

9 Gonzalez testified that she wa s abl e to lo ck onl y one of her two loc ks that nig ht bec ause the other lock was broken “ b eca use of anothe r time where [Jass o] tired to com e in to my home without permission. ”14

th reats, many threats that he ’ s made

. ” She c onfirmed the text message that said , “ I
will [ c ] ause her hell until dead idg af!!!!! ” refers to her. Prior to the tex t exc h ange , Jasso called G o nzalez and t old her he was in her ho use and took h er shoes and gun.

“ That ’ s how [she] knew that he broke ” i n to her house. She and her mother called the police, w ho found a n open window

. Duri ng th e twelve years of their relationship , Jasso ma de “ death threats ”
toward her bu t never stru c k h er. Once he put a gun to her head , but she did not file a police report about that. Gonzalez testif ied that “ many times, ” Jasso “ trie d t o
break i n t o [her] home without permission

. ”
3. Officer Jesus Paz
O ff icer Paz is an advanced peace offi cer with the Pas adena Police
D epartment. He testified that o n November 24, 2021, he was working t he night
shift

. H e was dispatched to a residence in Pasadena, Texas fo r a cal l of

“ disturb ance w i th a weapon

. ” H e was advised there “ was a fema l e that had a male
at gunp oin t who had bro ken into a res idence. ” 10 According to Officer Paz, by the
time he arr i ved at the scene , his partner had placed Jasso in handcu f fs and put hi m
in th e back of a patrol c ar.
Officer Paz testif

ied he spoke to Go nzalez, who was “ a little frant ic. She
was kin d of all over the place t rying to t ell me ever y thing that h a p pened; and I had

10 Officer Paz testified that the notes he received when the call was di spa tched ind icated the woman was holding the gu n on her “baby ’s daddy. ”15

to tell her to slow down, which she eventually did[ .] ” She pointed at the frame of
her front door and told Offic er P az that Jasso “ had bro k en into the res idence. ”
Jasso saw the door frame was split ne ar the dead bolt plate , “ w hich is normally an indicator of a forced entry that we see usually in burgla ries of habitation. ” Officer
Paz testified that the door to the home , which was a duplex, was “ a heavie r door
th an what [he] wou ld normally see in an ap artment com plex. ” He said the d oor
frame was “ split but it wasn’t shattered. ” H e said he determin e d the door was

open ed with force. However, he said it is possible the frame c ould have been damaged at some earlie r t ime

. Offic er Paz a n d G o nzalez went u pstairs 11 and “ she kind of showed me where they had go tten in to the argument, tha t

. . . she woke up by him screami ng at the doorway of their daughter ’ s bedroom and then we walked over to her bedroom
whe re he threw a b ottled w ater at her. ” 12 O fficer Paz said Gonzalez was not holding a gun when h e arriv ed.
Offic er P az then spoke with Jasso , who was in the back of the patrol car but
had not been arrested. Jasso told him he and Gonza lez had been shopping ear l ier
in th e e venin g with t heir children and right before they got b a c k to the house , he

11 A muted , min ute

- lo ng vi deo of Officer Paz ’ s body cam w as played for the jury. The video showed the officer following G o nzalez upstairs and into her bedroom

. 12 The wat er bot tle was photographed but there were no fingerprints o r D NA t o establish Jasso had touched the bottle.16

and Go nzalez began to argu e
. Jasso t old Offi cer Paz he had been staying in the
house for about three days , but Gonzalez sai d he did not live there

. Gonzalez and
her son 13 told O ffi cer Paz that Jasso had spent only the pre vi ous nig ht in her house
with her consent

. Before he was asked about it, Jasso told Officer Paz that he did not break the
door

. Offic er Paz test ified he thought it odd t h at Jasso wo uld me ntion the d oor
before be ing asked abo ut it. J asso to l d Officer Paz, “ the door was open, unlocked; and he jus t went right in. ” According to Officer Paz, Gonzalez said Jasso did not have perm ission to be there

. Officer Pa z cont acted the district attorney ’ s office, which advis ed th ey

w ould acce pt char ges of burglary of a habitation . At tha t point, Jasso was told he
was under arrest and Officer Paz took h im to jail.
T he jury convicted Jasso of t h e l esser
- included offense of criminal trespass
of a habitation

. The tri al court im pos ed a se nte nce of one year in the county jail

. The court suspend ed the sentence and impos ed a two

- year probated sentence. This

app eal ensued.

13 Offic er P az in terviewed Gonzalez ’ s son the night of the incident but there was little information given a bout tha t interview and th e son did not testify at trial

.17 Discussion 14
A. S tand ar d of Review
W e review a trial court’s decision to admit or exclude ev idence for abuse of
di scretion

. Os bourn v. State , 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Henley

v. State , 493 S.W.3d 77, 82

– 83 (Tex. Crim . App. 2016). A trial ju d ge a bu ses his
dis cretion when his decision falls “ outside the zone of reasonable d isag re ement. ”
Id. at 83; se e also Taylor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (stat ing trial court abuses discretion only if its decision is “ so c le arly wrong as to
lie ou tside the zone within which reasonable people might d isag re e”).
Eve n if the trial court erre d i n admitting o r excluding evidence, we will not reverse unless the appell ant establishes harm. When const itutional error is implic a ted, “ the court o f appeals mu st reverse a judgment of conviction or punishment unl ess th e court d etermines beyond a reason a bl e doubt that the error did not contribute to the conviction or punishment.” T EX

. R. A PP . P. 44.2(a). Fo r

non
- constitutional erro r , a ny “ error, d efect, irreg ularity, or variance that does not

14 Although Jasso states in his b rief that he object ed to the texts in th e trial cou rt

“ und e r both Rule 4 04(b) and Rule 403, ” his appellate b rief is confined to Rule 403. W e thus hold he waived hi s Rule 404 argument

. See Chaves v. State , 630 S.W.3d 541, 555 (Tex. App.

— Houston [1st Dist.] 202 1, no pet.) ( holding appella nt waived sufficie nc y com plaint by fail ing to provide supporting argument, substantive analysis, or citation to appropriate authorities or por tions of recor d) ; Shoemaker v. State for Prot. of C.L. , 493 S.W.3d 710, 718 (Tex. App.

— Houston [1 st Dist.] 2016, no pet.) ( ho lding Rule 404 arg um e nt waiv ed because of failure to adequately brief issue).18

affect substantial rig ht s must be disregarded.” T EX

. R. A P P . P . 44.2(b). “ A
substantial right is affected w hen the error had a substantial and injuriou s effect or
influence i n determining th e jury ’ s verdict .” King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citi ng K ot teakos v. U.S. , 328 U.S. 750, 776 ( 1 946 )).
B. Rule 403
Texas Rule of Evidence 403 allows the court to exclude relevant evidence

“ if its proba tive value is substantially o u tweighed by a danger of one or more of the following: unfair prejudice, confusing the is sues, misleading the jury, undue
de l ay, or needlessl y presenting cumulative evidence.” T EX

. R. E VID

. 403. In a Rule 403 analysis, the presumption is that th e probati v e value o f relev ant evidence outweighs its pre

ju dicial effect. Calvert v. S tate , No. AP

- 77,063, 2019 WL
50 57268, at *22 (Te x. Crim. App. Oc t. 9, 2019) (not designated for publication);
see also Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim. Ap p . 1997) ( “In keeping with the presumption of admissi bi lity of relevant eviden ce, t here i s a presumption that rele vant evide nce is mor e probative t ha n prejudicial.”) (citing Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) )

. Rule 403 contemplates t he exclusion of evidence only when there is a “clear dis parity”
b e tween the de gree of prejudice and the probative value of the e vidence

. H ammer

v. State , 296 S.W .3 d 555, 568 (Tex. Crim. Ap p. 2009) ( quoting Conner v. State , 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). In a Rule 403 analysis, “a reviewing19

court is to rever s e the t r ial court ’s judgment ‘rarely and only after a c le a r a buse of
di scretion. ’” Mozon v. S ta te , 991 S.W.2d 841, 847 (T ex. Crim. App. 1999) (quoting Montgomery , 810 S.W.2d at 389 )

. Rule 403 concern s only “unfair” prej udice. G onzalez v
. State , 544 S.W .3d 363, 373 (Tex. Crim. App . 2018).
“Evidence is unfai r ly p re judicial if it has the cap acity to lure the fact

- finder into declaring guilt on a ground different from proof specific to the offense charged.”
Id.
I n conduct ing a Ru l e 403 bal ancing test, the trial court must consid er t he following non

- ex clusive f a ct or s: (1) how probative the evi dence is, (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponen t needs to develop the evidence; and (4) the propo nent ’s need for the evi dence.
C ol on e v. State , 573 S.W.3d 249, 2 66 (Tex. Crim. App. 2019). The factors “may well blend together in practice.” Gigliobianco v. State , 210 S.W.3d 637, 642 (Tex.
Crim . App. 2 0 06). Jasso was charged w ith burg lary of a habit at ion with intent to commit

assau l t. Se e T EX

. P E NAL C ODE § 30.02(a)(2). Th e indictment alleged that “ on or
about November 24, 2021, ” Jasso “ did then and there unlawfully, with intent to
commit an assault, enter [ed] a habitation owned by Liz a Gonzalez, a person having a greater right to po s ses si on of the habitation than [Jasso] . . . without effective

con sent of the C omplainant, namely without any co nsent of any kind. ” As part of20

his defensive theory, d efense counsel argued Jasso had not broken into the house , but had entered the house on ly to retrieve some of his things. He t ol d the jury that
in November 2 021, Jasso and Gonzalez had been “in a relationship for about 12 or
1 3 years on and off , ” they share d two young children , both of whom were in the
house that night , and Jasso ha d spe nt th e prior nigh t , as well as other nights , in the
house with G o n z alez ’s consent

. 1. Firs t Factor: Probative Value of the Evidence
T he Court of Criminal Appe als has defined “inherent proba ti veness ” as

“ [h] ow compellingly evidence of the ex tr aneous miscondu ct serves to make more or less probable a f

act of consequenc e. ” Montgome ry , 810 S .W.2d at 389

– 90.
“This is often, although by no means invariably , a function of the similarity of the

extraneous transaction to the charged offense

. ” Id

. a t 390. “ It is al so a function of
the s trength of the propon ent ’ s evidence to show the opp onent in fact comm itted
the extra neous conduct

. ” I d. Jasso argues the challenged texts are not probative of his intent because he
could not have e ntered G o nzalez ’ s ho use in January 202 1 t o assault h er, g iven that
he knew she was not there. He states, “ From the text messages, it looks l i ke the

co mplainant owed him money and he was taking what was his. ” Jasso further

argues that his alleged “ int en t ” is quest ionable because Gonzalez t e s t ified he had

n ever struck her before

. F inally, he argues , g iven t hat the text messages were not21

p r obative o f the offense for which he was charged , they should have been
excluded.
The State argues we should examine t he probative na ture of the text

messa ges for Jasso ’ s e xtraneous conduct using a three

- part analysis tak ing into account: (1) “ the simil a rity bet ween the prior act and the offense charged, ” (2) “ the
closeness in time of the extraneou s transaction to the c h a rged offense, ” and (3)

“ the availabil ity of alt ernativ e sources of proof. ” Walk er v. State , No. 14

- 01

- 01197

- CR, 2003 WL 21466960, at *4 (Tex. App.

— Houston [14th Dist.] June 26, 2003, pet. ref’d) (mem. op., not designated for publication) (citing Robinso n v.
State , 701 S.W.2 d 895, 898 (Tex

. C rim

. App. 1985) )

. 15
As it concerns the sim ilarity between the p rior act and the cha rged offense , the S tate argues that bot h the January burglar y and the charged November burglary
occurred at Gonzalez ’ s home , and both o ccurred whe n Jass o allegedly entered her
home without he r consent

. In both case s, Gonzalez w a s the “ bur glary victim. ” Thus, the State argues, the tex ts were probative of Jasso ’s “ int ent, motive, lack of mistake, and lack of effective consent. ”

15 See also Hill v. State , No. 11

- 13

- 00069

- CR, 2015 W L 252316, at *7 (Tex. App.

— Eastland Jan. 15, 2015, pet. ref ’ d) (mem. op., not designated for publ ication) (“As important meas ures of pro bat ive fo r ce, we consider the closeness in time, the presence of similarities between the ch ar ged and the extraneous off ense, and the strength of the evidence to prove the extraneo us offense.” ( citing Montgomery v. St ate , 810 S.W.2d 372, 3 9 0 (Te x. Crim. Ap p. 1991 ) a nd Robi nson v
. State , 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) )

.22

Second , concerning the closeness in time of t he extraneou s tra nsaction to the
ch arged of

fense , the S t ate argues the te n
- month s pan b e tween th e January 2 021

texts and the November 2021 alleg ed burglary is not too remote to be considered , noting there is no bright

- l ine rule as to when a n extraneous tra nsa c tion can be

c onsidered

. 16 “ [T] here is n o per se rule as to when an extra neous offen se is too

remote in time to be introd uced in evidence. ” Perez v. State , No. 12

- 14

- 00116

- CR, 2015 WL 3451556, at *6 (Tex. App.

— Tyler May 29, 2015, pet. ref’d) (mem. op .,

no t designated f

or publication) (citing Te mplin v. State , 711 S.W. 2 d 30, 34 (Tex.
Crim

. App. 1986) )

. T hird , the State argues the texts are probative of G o nzalez ’s intent

. The
State points o ut tha t as part of his defens ive theory, Jasso ’ s counsel argued J ass o
had effectiv e consent to be in the hou se and that he was there “ not to commit assault, but to t ak e his clothing

— or move his items. ” In other words, Jasso la cked

a mo tive and had a good relationship with G onzalez. T h e State argues that because
Gonzal ez interru pted Ja sso ’s No vember 2021 intrus ion, t he act “did not allow the

16 W e have held t hat remoteness of extraneo us
- offense evidence i s t o be considered under a R u le 403 ana lysis. Martinez v. State , No. 01

- 19

- 00906

- CR, 2021 WL 1679546, a t *7 (Tex. App

. — Ho us t on [1st Dist.] Apr. 29, 2021, no pet.) (mem. op., not designated for publication) ; s ee also Newton v. State , 3 01 S.W.3d 315, 318 (Tex. App.

—

Waco 2009, pet. ref’d) ( “[R] em oteness is of import not when determi ning whether when extraneous

- offense ev ide nce ha s probat ive value but when assessing whether the probative value of such evidence is substantially outweighed b y the danger of unfair prejudice or sim ilar concerns under R ule 403

. ”).23

jury to de t ermine t he appellant ’s ultimate intent. ” The State argues that b ecause “specific intent and effective cons ent were disputed material fact s in the case, ” the

texts were p ro b ative in that they were necessary to est ablish intent, lack of effective consent, motive, and lack of mistake

. “ Where intent cannot be readily
in fe rred from the act itself, other ev idence relevant to that intent, even evidenc e of
extraneous offenses or t r ansactions, wi ll invariably be more p rob ative than prejudicial. ” Corley v. St a te , 987 S.W.2d 615, 62 0 (Tex. App.

— Austin 1999, no pet.) (citing Morgan v. State , 692 S.W.2d 877, 880 (Tex. Cri m. App. 1985 ) ).
W e are n o t troubled by the remoteness of the tex ts

. See Parli n v. Sta te , 591 S.W.3d 214, 224 (Tex. App.

— Houston [1st Dist.] 2019, n o pet.) ( holding one
- year
time lap se “ does not per se erase the probative value of the testimony. ” ); Gomez v
. State , No. 13

- 17

- 00180

- CR, 2 019 WL 4 70933, at * 5 (Tex. App.

— Co rpus Christi
F eb. 7, 2 019, pet. ref ’ d) (mem. op., not designated for publication) (“ A time period of four to seven yea rs wa s not so remote as to erode the probative value of the

extraneous o ff

ense evidence”) ; Corley , 987 S.W.2d at 617, 621 ( holding

extr ane ous crime thir teen years before trial wa s not too remote); Keller v. State , 818 S.W.2d 425, 429

– 30 (Tex. App.

— Houston [1st Dist.] 1991, pet. ref ’ d ) ( co n cluding extraneous offens e committ ed more tha n two years before charged
offense wa s not too remote )

.24

Mor eover , we conc lude the acts reflect ed by the texts a nd the acts the State alleged occu rred on November 24, 2021 ar e subs tantially similar. The St at e argues
that in January 2 0 21 , and in November 2 021, Jasso entered Gonzalez ’ s hou se
without her consent a nd that both time s, he w as aggressive

. In the January 2 021

text exchange with Castillo, Jasso threat en ed both her and G o nzalez. A nd according to th e State, he wa s aggressive in the November 2021 incident, first
when he l eft the house, according to Gonzal ez ’ s testimony, a nd later when he returned, as evidenced by his yellin g during the 9

- 1

- 1 call , pictures reflecting damage to the front door , and test im ony he threw a water bottle at Go nzalez and
kick ed her dog

. “ Although the extraneous offense was not exa ctl y the same as the offense charged, it ne ed only be substantially similar to be admissible. ” Corley , 987 S.W.2d at 619 n.2 ; Johnson v. State , 932 S.W.2d 296, 302 (Tex. App.

— Austin 1996, pet. ref’d) (same) (citing Robinson v. Stat e, 701 S.W.2d 895, 898 ( Tex

. Crim. App. 1 985) ; Brown v. State , N o. 01

- 07

- 00607

- CR, 2008 WL 1747876, at *6 (Tex. App.

— Houston [ 1st D ist.] Apr. 17, 2008, pet. ref’d) (mem . op ., not designated for publication) ( “ To show intent from extraneous offenses , the co urts require only that t he facts of the c harged offense and the extraneous offense be substantially similar , not exact. ”)

. Fur the r, by telling t he jury during opening statements that Jasso had not
broken into the house, had entered the house only to retrieve his things , and had25

s pen t the prior ni ght, as well as other nights, at the house with Gonzalez ’ s consen t,
defense co un se l opened the door to testimony about the January 2021 texts , which
manifest a clear lack of consent by Gon zalez for Jasso to be in her house and
reflect Jas s o ’s threats towar d Gonzalez and her mother. See Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. A pp. 2008) ( noting that defense opening statement

opens door to admission of extraneous

- offense evidence to rebut defe nsive theory
raised in statement).
W e ho l d t he first facto r weighs in favor of admission

. 2. Se cond Factor: T h e Potential to Impre s s the Ju ry The second factor re quires us to consider whether the extraneous offense
evidence has the “ potential to impress the jury in some irrational but indelible

way , ” s u ch as charact er conformity. McGregor v. State , 394 S.W.3d 90, 120 (Tex. App.

— Hous t on [1st Di st.] 2012, pet. ref’d ) ( quoting Blackwell v. State , 193 S.W.3d 1, 15 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d) )

. Jasso argues

“ [t]he text messages are hor ri ble. And th e State knew that , ” beginning its closing argument by discussing the t e xt messa ge s and returning to th e subject of the text messages later in its closing argument

. He argues the closing argument

“ appeal[ed] to the jury ’ s em otional side an d e ncourage[d] th e jury to make a
decision on an emotional basis. ”26

T he State a rgues th e January 202 1 burglary and the November burglary

“ were the same overall offense , ” the lim iting instruction g iven in the jury charge mitigated any improper influence on t he jury, and Jass o ’ s contention that the State repeatedly referred t o the te xt s in its closing “ is inapt. ”
W ith respect to the State ’ s closing argument, approximately o ne
- fifth of the
State ’s re buttal argument w as d e voted to the text messages. In its clo sin g the S t ate

ar gued : Now, the law says that you can use surrounding ci rcum s t ances to show that the defenda nt intended to commit assault when he walked through that door. And how did I show that t o you? One was the defendant ’ s own words: “ I ’ m here a t her hou se. ” That ’ s wh at the defendan t told Liza ’ s mom back on January 24th o f 20 2 1 . You have the text me ssages. You can look through them when you get back there. I will cause her hell until dead; I do n ’ t give a fuck; tell them I ’ m armed and dangerous: T hese a re the defendant ’ s own words.
Later in its argument, the Sta te a rg ued : So going back to J anuary 2 4, 2021, exactly ten months before the case we ’ re here on today, Victor knew Liza wasn ’ t home. You heard Liza testify. She was on vacation in Mexico. Defenda nt called her and let h er know he hadn ’ t seen her f or three day s, h e was gonna come take hi s stuff. Those text messages that you get to go back and look at are from January 24th between th e defendant and Liza ’ s mother, Lisa. The defendant sa ys that I ’ m goi ng into her home. He kn ew Liza wasn ’ t there and whe n Judge was ex pl a ining in the jury instr uction a bout using extraneous offenses to show motive, intent, opportunity, this is exactly what Victor was doing that day in January, using the oppor tunity that Liz a w asn ’ t t here.
The text messages could h a ve been i nt en ded to appeal to t he jury ’s emotions and to prove character conformity

. However, a n impermissible inference of27

character conformity “ can be minimized by the us e of a limiting instruction

. ” McGregor , 39 4 S.W

. 3d at 12 0

– 21 ; see also Lane v. St a te , 933 S .W .2 d 504, 520 ( Tex. C rim. App. 1996) ( “ [T] he impermissible inference of character conformity
can be mini mized through a limi ting instruction

. ”). The jury charge i ncluded the following limiting instructi on:
You are f urth er instructed that if the r e is any ev id ence be fore you in this case regarding the defendant ’s committing an alleged offense or offenses other than the offense a lleged against him in the indictment in this case, you cannot consider such evi den ce for any pur pose unless you find and b elieve be yo nd a rea sonable doub t that the defendant committed such other offense or offenses, if any, and even then you may only consi der the same in determining the motive, opportunity, intent, preparation , plan, kn owledge , ident ity, or absence of mistak e or accid en t of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.
We presume the jury “ understood and followed the court ’ s charge, abs ent evidence

to t he contrary

. ” Crenshaw v. S ta te , 378 S.W.3 d 460, 467 (Tex. Crim. App. 2012) ;
see also Jenkins v. State , 493 S.W.3d 583, 616 (Tex. Crim. App. 2016) ( sa me).
G iven the am o unt of time in the State ’ s rebuttal argument d edicated to
evidence ot her than the text messages and the court ’ s li mi t ing instruction , we do

n ot conclude the ju ry was indelibly impressed by the text s
. W e hold t his factor weighs in favor of admiss io n. 3. T h ird Factor: T h e Time Needed
The third factor conte mplates “ the time the pr oponent will n eed to develop
the ev idence, d u ring which the jury will be distracted from consideration of the28

indicted o f

fense. ” S tate v. Mechler , 153 S.W.3d 435, 441 (Tex. Cr im. App. 2005)

. Castillo ’s testimony comprises approximately eight pages of the 162

– page
rep o rter ’s record of the trial and Gonzalez ’ s testimony regarding the text me ssages
spanne d less than six full pages

. This smal l portio n of the trial devoted to the text

message s weighs in favor of admission. See Gaytan v. State , 331 S.W.3 d 2 18 , 22 8 (Tex. Ap p.

—

Austin 2011, pet. ref’d) (holding testimony that occupie d thirteen pages of 200

- plus

- page trial transcript wei gh ed in favor of ad mission under Rule 403); Lane , 933 S.W.2d at 520 (holding in Rule 403 a na l ysis t hat extraneous

offense test imo ny that amount ed to “less than one

- fift h ” of trial testimony was not
excessive and weighed in f avor o f admission ).
4. Fourth Factor: T h e State ’s Need for the Evidence
The Court of Criminal A p peals considers three factor s t o determine the
State ’s need for the evidence: (1 ) d oes the proponent h a ve other available evidence
to establish the fact of conse quence that the extraneous misconduct is relevant to
sho w? (2) i f so , how strong is that other evidence? a nd (3) is the fa ct of

c onseq uence related to an issue th at is in disp ute? Montgomery , 810 S.W.2d a t
390 ; see also Erazo v. State , 144 S.W.3d 487, 495 (Tex. Crim. App. 2004) (identifying same sub factors)

. “ When the proponent has other compelling or undisputed ev idence to e s tablish the proposition or fact th at the extraneou s misconduct goes to p rove, t h e misconduct evidence will weigh far less than it29

o therwise mi ght in the probative

- versus
- prejudicial balanc e. ” Montgomery , 810
S.W.2d at 390

. Jas so argues only with respe ct to this factor that Gonzalez “ was abl e to fully

te stify and explain what happen e d ” and that the text messages were not needed

“ fo r any relevant purpose. ” He thus asserts the State did not establish a need fo r
the text messages.
Th e S tate responds that during trial, d efense counsel dispu ted that Jasso h ad

“ sp e cific intent to commit a ssault ” when he entered G onzal e z ’ s house and he also argued that Jasso had effective consent to be in the hou se
. In addition , defe ns e
counsel “ sought to e licit testimony dem onstrating a good relationship [bet wee n
Jasso and G onzalez] , r e conciliatio n , and other non

- assault intents. ” Th us, the State

argues , its need for the text m essages was “ s ubstantial ” and without the tex ts , the State only had circums tantial evidence to rebu t Jasso ’ s defen s ive theories and to

pr ove effective consent and intent to co mmit assault.
The State concedes there was “ some oth e r available evidence ” of the facts of

conse quence f

or which the text messages were admitted. A nd it also acknowledges tha t an owner ’ s “ lack of effe ctive con sen t to an entry ” in a burglary offense may be prov e d circumstantially

. S ee Fugate v. State , 7 0 9 S.W

. 2d 29, 3 0 (Tex. App.

— Corpus Ch risti

- Edinburg 1986, no pet.) ; cf. Lee v. State , 962 S.W.2d 171, 174 (Tex. App.

— Houston [ 1st Dist.] 1998, pet. ref’d) (notin g t hat lack of30

e ffective consent “ m ay be proven solely by circumstantial evi d ence ” in criminal offenses). T h e same is true with i nt ent to commit assault. “ Juries may infer intent [to commit assault] from a defendant ’ s c onduct and the surroun d ing facts an d

c ircu mstances. ” McIntosh v. State , 297 S.W.3d 536, 541 (Tex. App.

— Houston [1st Dis t .] 2009, pet. re f’d)

. We thus hold this fa ct or weighs against admission. In summary, because t hree f acto rs weigh in favor of admissio n and one again st, we hold the tria l c ourt d id not abuse its discretion in admitting the text

messages. “ In close cases, courts should favor the admission of releva nt

e vidence

. ” Salazar v. State , 90 S.W.3d 330, 338 (Tex. Crim. App. 2002) (citing Montgome ry , 8 1 0 S.W

. 2d at 389). On ly in “r are cases ” may w e reverse a trial

court ’s determination under Rule 403

. Caldwell v. State , No. 02

- 23

- 00071

- CR, 2023 WL 8467375, a t *8 (Tex. App.

— Fort Worth Dec. 7, 2023, no pet. h.) (mem.

op ., not des ig nated for publicat ion) ( citing Martinez v. State , 468 S. W.3d 7 11, 718 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) ) ; see also State v. Villegas , 506 S.W.3d 717, 767 (Tex. App.

— El Pa so 2 016, pet. dism ’d ) ( “ The trial court ’ s balancing of Rule 403 factors is entitled to our defer e nce. ”)

. C. Harm
Even if the admi ssi on of the tex t messages w ere an abuse of discretion, Jasso still would not prevail because he was not harmed by admis sion o f th e text31

messages. As with other alleged ev identiary erro rs, we cannot reverse a tri a l

court ’ s ruling under Rule 403 unles s the ap pellant estab lishes the tr ial court ’ s error
resulted in harm. See T EX

. R. A P P

. P. 44.2 (setting forth standards for
constituti on al a nd non

- constitutional harm); see als o Prible v. State , 175 S.W.3d 724, 737 (T e x. Crim . App. 2005) (ho lding even tho ugh t ria l court abuse d its
discret ion by admitting autopsy photos over d efendant ’ s Rule 403 objection, any
error was harmless ); Arevalo v
. State , 675 S.W.3d 833, 850 (Tex. App.

— Eastland 2023, no pet.) ( holding any erro r in adm ission of testi mony about tex t mess age s
was harmles s)

. Jasso arg ues he was harmed by the admission of the text mes sages because

“ [w]ithout the introduction of the te xt messages, the State ’ s case turned entir ely upon the testimony of the c omplainant

. ” He s tates the text mes sages “ formed the

ma in par t of th e pr o secutor ’ s closing argument. ” H e notes the jury requested to see
all admitted e vidence du ri ng deliberation. Jasso states t he jury “ rejected substantial portions o f the complai n ant ’ s testimony and ult i mately went with a
lesser

- included of

fense. If th ose text messages h ad not bee n admitted, Mr. Jasso
could well have been acq uitted. ”
The State a rgues that any err or in admitting the text messages w a s harmless
because (1) other more pre judicial extraneo us or character evidence was admitt ed without objec ti on; (2) the State “ gave relativ ely little emphasis to t he texts i n32

closing ; ” (3) the jury ’ s not es to the judge sh ow it “ focused last on non
- extraneo u s materials before arriving at its ve rdict ; ” and (4 ) J asso was con victed of a lesser

incl ude d offense. First, t he S tate notes that evidenc e was elic it ed from G o nzalez that Jasso

prev iously had hel d a gun to her head, th at Jasso is “ malicious” and “ evil , ” that Jasso kicked her dog on the night in question, a nd her door had only one working
l o ck that night “ b ecause of another t ime where [Jasso] tr ied to come into [her]
home w ithout permission. ”
S e c o nd, the State dispute s Jasso ’ s cont enti on that its closing argument focused on the text message s
. As set forth a b ove, the St ate twice referred in i t s closing to the text me ssages , taking u p about one
- fifth of its closing argument. The
State al so c ommen t ed on other evidence in its closing. “ Th e most important
evidence of the intent to c ommit assault was what [Gonzal ez] said right up there on
that st and

. . . . Sh e to ld us th at [Jasso] threatened h er on November 24, 2021. ” T h e
S tat e discuss e d the door frame that Jasso allegedly broke while kic king down the door on November 24, 2021 , the fact that Jasso carrie d a gun , and that he had p ut a gun to her h ead befor e
. The S t ate replayed the 9

- 1

- 1 call and said G o nzalez is

“ lu cky . . . t o be alive[.] ” The State argued that G o nz alez “ used her weapon and told [Jasso] to leave. Without [Gonzalez] pointing that gun at [Jasso], we may be
here on a lot more ser i ous charg es inste ad of just burglary of habitation

. ”33

Third, the Sta te ar gues the j ury ’ s notes to the trial court du ring deliberations

“ support harmlessness. ” In its final question , the jury aske d to review (1) Officer
Paz ’ s test imony “ rega rding the co n dit ion of the doo r and door frame an d his testimony re garding his interview with the son , ” 17 (2) Officer Paz’s “ descrip tion of
his first interaction ” with Gonzalez, (3) G o nzalez ’ s testimony regarding “ what happened when the party arrived at th e residence a f ter eating ” dinne r, and ( 4)
Gonzalez ’ s response to que stioning re g arding Jasso ’ s entering the residence. The jury did not ask to rev iew testimony specifically about the text messages. 18 We are most persuaded by the State ’ s final argument. T h e State as se r ts a finding of h armlessness is supported by the jury ’ s convictio n of Jasso of the lesser

includ ed offense of criminal trespass of a habitation, which do es not includ e an
element of intent to commit an offense

. 19 To the ex tent the text message s were
off er e d t o prove the in tent e lement of burglary of a habitation , we agree
. “Logic
dictates that when the complained[

- ]of ev iden c e is offered to e stablish proof of the

17 Gonzalez ’ s son did not testify during the trial. Officer Paz in terv ie w ed the son, who said he and his sister lived in the home with their mother, Gonzalez , and that his father had slept at the house the night before

. 18 However , the jury did ask for all evidence that was adm itted, so they had the text messages wi t h them during th eir deliberations.
19 One commits criminal trespass if he “ enters or remains on or in property of another, including residential land

. . . without effective consent and the person (1 ) had notice that the entry was forb idden; or (2) rece iv ed notice to d epa rt but failed to do so. ” T EX

. P E NAL C ODE § 30.05 (a)

. “ Crimi nal trespass can be a lesser

- includ ed offense of burglary of a habitation. ” Goad v. State , 354 S.W.3d 443, 446 (Tex. Crim. App. 2011)

.34

greater offense, but the jury a cquits the defendant of that offense and convicts of
the les se r of

fense, the com plained[

- ] of evidence did not have a substantial and injurious effect or influence on the jury ’ s verd ict. ” Bean v. State , No. 13

- 01

- 030

- CR, 2001 WL 34394342, at *2 (Tex. App.

— Corpus Christi

– Edinburg Oct. 4, 2001, no pet.) (no t designat ed for publication) ( holding n o harm resulted from
admission of extraneous offense evidence offered to prove defendant ’s spec i fic
in tent to kil l when defendant w as acquitted of murder and convicted of lesser
offense of mansla ughter ) ; see also Cas ey v. Stat e , 215 S.W.3d 870, 8 85 (Tex.
Crim. App. 2007) (holding appellant was not harmed by admission of prejudicial
evidence beca use , among other things, jury convicted appellant of lesser

- included

o ffense) ; Collins v. State , No. 02

- 22

- 0 0252

- CR, 2023 WL 4501828, a t * 4 ( Tex. App.

— Fort Worth July 13, 2023, pet. ref’d) ( mem. op., not designated for

pu blication) ( “ Any claim of harm conc erni n g the admissi on of the Count One prior

- conviction evidence is undermined by the fact that th e jury did not convict
Colli ns of the of

f ens e alleged in C ount One but instead merely found him guilty of
the lesser

- include d offense of assault by contact. ”)

. 20

I n deed, the onl y “intent ” relevant in a criminal trespass action is the i ntent of
the actor to enter the property. “[T] he offenses of bur glary of a hab itation and

20 “Count On e ” was “ as sault

– family viol e nc e by impeding breath with a prior conviction

. ” Collins v. State , No. 02

- 2 2

- 00252

- CR, 2023 WL 4501828, at *1 (T ex. App.

— Fort Worth July 13, 2023, pet. ref’d) (mem. op., not desig n ated for publication).35

criminal trespass have the same elements except that the offens e of bur glary has
the element of in tent to co mmit a f elony or theft, whereas the offense of criminal
trespass has no such elemen t [ .] ” Moreno v
. State , 702 S.W. 2 d 6 36, 640 (Tex.
Cri m. App. 1986)

. As such , we conclude the tex t messages likely had no bearing

on the jury ’ s convicti on fo r crim inal trespass.
We thus h old that any error in admitting the text messag es was harmless.
We ov errule Jasso ’s sole issue.
C on c l u s ion
We affirm t he tri al c ourt’ s ju dgm e n t

.

Ve ro nic a Ri va s
- Moll o y Just i c e
Pan el co ns is t s o f Ju sti c e s K elly, C ount i ss, and Ri v as
- Moll o y
. Do not p ub l i sh. T EX

. R

. A P P

. P

. 47

. 2( b).