Opinion filed November 30, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-15-00276-CR

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YADHIRA AINSWORTH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-43,976

M E M O R A N D U M O P I N I O N

The jury convicted Yadhira Ainsworth of assault on a public servant and

assessed her punishment at confinement for two years. See TEX. PENAL CODE ANN. 

§ 22.01(a), (b)(1) (West Supp. 2017). In a single issue on appeal, Appellant 

challenges the admission of an open arrest warrant for an extraneous offense. We 

affirm. 

Ector County Sheriff’s Deputy Barry Thomas Hill encountered Appellant 

while he investigated an incident reported at Appellant’s home. When Deputy Hill 

arrived at Appellant’s home, Appellant’s husband, Thomas Edward Ainsworth, 
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exited the home in a wheelchair and approached Deputy Hill. Thomas spoke with 

Deputy Hill for a few minutes until Appellant came outside. 

Deputy Hill testified that Appellant interrupted the interview, shouted over 

Thomas’s responses, and refused to answer questions directed at her. Instead, 

Appellant told Deputy Hill that she was leaving. One of Appellant’s family 

members had parked a vehicle on the street, and Appellant began to load her personal 

items into the vehicle. Deputy Hill testified that Appellant’s movement in and out 

of the house caused him to fear that she might be getting a weapon and that Appellant 

might leave before he could complete his investigation. 

To control the situation, Deputy Hill testified that he decided to restrain 

Appellant with handcuffs and place her into the patrol unit until he could finish 

questioning the couple. Deputy Hill testified that, as he escorted Appellant toward 

the patrol unit, Appellant stated, “Get the f--k off of me,” and struck him in the face 

with her head by leaning forward and then swinging her head backward. After he 

placed Appellant in the patrol unit, Deputy Hill spoke to dispatch and discovered an 

open arrest warrant for Appellant. Deputy Hill transported Appellant to the jail. 

Deputy Hill testified that, after several hours had passed, he began developing a 

headache and nausea and went to the hospital for medical attention. 

At trial, Appellant objected to the State’s questions concerning the open arrest 

warrant. Appellant first objected on the ground of relevance. The trial court asked 

the State whether the existence of the open arrest warrant might be a reason why

Appellant resisted Deputy Hill, and the State agreed with this rationale. The trial 

court overruled the objection based on relevance. Appellant next objected that

evidence of the open arrest warrant should not be allowed because the underlying 

charge was ultimately dismissed. Otherwise, Appellant argued, “[T]he jury is left 

to think, well, maybe, she was on a warrant for some other serious charge. That’s 

an extraneous offense.” The trial court overruled this objection as well. 
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The State proceeded to ask Deputy Hill on direct examination whether 

Appellant had an open warrant. Deputy Hill confirmed that she did. On crossexamination, Appellant questioned Deputy Hill about the sequence of events and 

confirmed that Deputy Hill detained Appellant prior to the time that he learned about 

the warrant. On redirect, within a short series of questions, the State asked, “[I]f 

someone has an open warrant, what do you typically do?” Deputy Hill answered, 

“Arrest them.” On cross-examination of Thomas, after he testified that Appellant 

did not understand why she was being detained, the State asked Thomas whether he

was aware of the open warrant. He responded that he was not aware of it. 

The State did not mention the open warrant during its jury argument. Instead,

the State focused on Appellant’s demeanor and conduct, Deputy Hill’s injury, an 

apology made by Appellant to Deputy Hill at the jail, potential personal bias of 

Thomas in testifying favorably for Appellant, and potential conflicts in Thomas’s 

testimony. The record does not indicate that the trial court instructed the jury to limit 

its consideration of the warrant for the purpose of determining Appellant’s motive, 

but the trial court did exclude any mention of the underlying offense.

Appellant’s argument on appeal has characteristics of both Rules 403 and 

404(b) of the Texas Rules of Evidence. The State argues that Appellant failed to 

object to testimony about the open warrant on the ground of Rule 403 and that the 

testimony was admissible under Rule 404(b) as evidence of motive, intent, absence 

of mistake, and lack of accident. 

To preserve error on appeal, a party must make a timely request, objection, or 

motion “with sufficient specificity to make the trial court aware of the complaint.”

TEX.R. APP. P. 33.1(a)(1)(A). Generally, a party must object each time inadmissible 

evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App.

1991). There are two exceptions. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. 
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App. 2003). A party may (1) request a running objection or (2) obtain a ruling 

outside the presence of the jury. Id.; TEX. R. EVID. 103(b).

The second exception applies to this case. Appellant objected to the 

admissibility of the open warrant outside the presence of the jury before the State 

first elicited the testimony, and the trial court ruled that the testimony was 

admissible. Because Appellant obtained a ruling on the objections outside the 

presence of the jury, no further objections were necessary.

Once trial counsel preserves error, the scope of the appeal is limited to the 

objections made on the record. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. 

App. 2012). “The point of error on appeal must comport with the objection made at 

trial.” Id. Whether Appellant forfeited the Rule 403 objection by failing to make 

the same argument on appeal as at trial depends on “the context of the objection and 

the shared understanding of the parties at the time.” Id. Typically, “statements or

actions on the record” must indicate that “the judge and opposing counsel understood 

the argument.” Id. 

In this case, Appellant explicitly objected to testimony about the open warrant 

on the grounds of relevance and the admissibility of an extraneous offense. 

Appellant also argued that admitting evidence of the open warrant while excluding 

the dismissal of the underlying charge would cause the jury to believe the warrant 

was related to a more serious charge. This argument fits with the gist of an argument 

under Rule 403—that allowing evidence of the open warrant might cause unfair 

prejudice without evidence of the dismissal. Appellant made this argument in 

response to the trial court’s initial ruling to allow testimony about the open warrant 

because it could provide a reason why Appellant resisted Deputy Hill. Appellant 

repeats these arguments on appeal.

Because of the substance and timing of the objection, the argument at trial was 

sufficiently specific to notify the trial court to conduct balancing under Rule 403, 
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and the appeal comports with the objection. Therefore, Appellant preserved error 

for review of admissibility of the open warrant under Rules 403 and 404(b). 

Next, we address the merits under Rules 403 and 404(b). We review a trial 

court’s decision to admit or exclude evidence under an abuse-of-discretion standard. 

De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will uphold 

a trial court’s ruling as long as it is within the “zone of reasonable disagreement” or 

“correct on any theory of law applicable to that ruling.” Id. at 343–44 (first quoting 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991), and then citing 

Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)). 

Under Rule 404(b), evidence of an extraneous offense may be admissible as 

proof of motive, intent, knowledge, identity, or absence of mistake or accident. 

TEX. R. EVID. 404(b). In other words, Rule 404(b) requires evidence of an 

extraneous offense to be “relevant to a material, non-propensity issue.” De La Paz, 

279 S.W.3d at 344. 

We agree with the trial court’s decision to admit testimony about the open 

warrant under Rule 404(b). Evidence of the open warrant makes it more probable 

that Appellant had a reason to evade arrest and intentionally head-butt Deputy Hill. 

See Sypniewski v. State, 799 S.W.2d 432, 434 (Tex. App.—Texarkana 1990, pet. 

ref’d) (reasoning that a warrant for an extraneous offense inferentially shows motive 

to evade arrest). Because the trial court fairly reasoned that the arrest warrant was 

relevant to Appellant’s motive rather than Appellant’s character, there was no error 

under Rule 404(b). 

Under Rule 403, a trial court’s decision to admit evidence is reasonable if “the 

probative value of that evidence is not substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading of the jury.” De La Paz, 279 

S.W.3d at 344; TEX. R. EVID. 403. Rule 403 requires balancing the following 

factors: “(1) the probative value of the evidence; (2) the potential to impress the jury 
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in some irrational, yet indelible, way; (3) the time needed to develop the evidence; 

and (4) the proponent’s need for the evidence.” Hernandez v. State, 390 S.W.3d 

310, 324 (Tex. Crim. App. 2012). 

A trial court is presumed to have engaged in the required balancing test when 

Rule 403 is invoked. Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 

1997). However, the mere fact that balancing occurred does not satisfy the abuseof-discretion standard: “the trial court’s determination must be reasonable in view 

of all relevant facts.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 

1997) (quoting Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996)). 

There is a presumption in favor of admitting relevant evidence; the corollary 

presumption is that evidence admissible under Rule 404(b) “is more probative than 

prejudicial.” See id. With these presumptions in mind, we weigh the probative value 

and the proponent’s need for the evidence against the likelihood that the evidence 

will create unfair prejudice or mislead the jury. Hernandez, 390 S.W.3d at 324. 

Given the presumptions and the abuse-of-discretion standard of review, we 

cannot say that the trial court’s ruling was unreasonable. The existence of the open 

warrant was used to show that Appellant had a motive to evade arrest and 

intentionally head-butt Deputy Hill. However, potential evidence about dismissal 

of the underlying charge could have undermined the probative value of the warrant. 

There are two ways of assessing the State’s need for the warrant: the quality of the 

open warrant and the quantity of the State’s other evidence of Appellant’s motive 

and intent. See Montgomery, 810 S.W.2d at 390 (“Does the proponent have other 

available evidence to establish the fact of consequence that the extraneous 

misconduct is relevant to show? If so, how strong is that other evidence?”). The 

quality of the evidence may have been questionable, due to the dismissal of the 

underlying charge. But the quantity of the State’s total evidence of Appellant’s 

motive and intent was limited to testimony about Appellant’s conduct and demeanor, 
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Deputy Hill’s injury, and the open warrant. Although the State later decided not to 

emphasize the warrant in closing arguments, the limited sources of evidence related 

to Appellant’s motive and intent may have increased the need for evidence of the 

open warrant. Therefore, although the probative value of the open warrant may have 

been questionable, the State’s need for it was arguably high. 

Furthermore, there was only a moderate likelihood that the open warrant 

would mislead the jury. The State quickly developed testimony about the open 

warrant, asking only two witnesses a few brief questions. This trial was short;

therefore, the concise questions about the open warrant without evidence of the

dismissal of the underlying charge had the potential to leave an irrational, yet

indelible, impression on the jury. However, because the testimony was brief and the 

trial court excluded any mention of the underlying offense, the chance that the jury 

was distracted from the indicted offense was only moderate. 

On balance, with an arguably high need for the open warrant on one side of 

the scale and only a moderate potential to mislead the jury on the other, the trial 

court did not abuse its discretion when it determined that the danger of unfair 

prejudice did not substantially outweigh the probative value of the warrant. 

Therefore, the trial court’s decision to admit the open warrant was reasonable and 

did not violate Rule 403. Appellant’s sole issue is overruled.

We affirm the judgment of the trial court. 

JIM R. WRIGHT

November 30, 2017 CHIEF JUSTICE

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

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.