### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00546- CR

William Jam es Cr enan, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NO. CR24,0 44, H ONO RAB LE JO HN Y OUNGB LOO D, JUDGE P RESIDING

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

A jury convicted Wil liam J ames Crenan of theft from an elder ly person in an amount exceeding$100,000 but less than $200,000 for stea ling c attle. SeeTex. P enal Code § 31.03. The district court assessed punishment at fiftee n y ear s’ imprisonment and rende red judgme nt consistent with the jury ’s ver dict.

On appea l, Crenan contends that the evidenc e was insufficient to support his conviction and that the court err ed by : a llowing Rob B ear d, the owner of the cattle, to te stify as an expert on the estimated number of calve s that should have been born to his cows kept on Crenan’ s

ranc h; allowing B ear d to testify as an e x pert without being disclosed as a n expert; allowing B ear d to testify as the State’s only expert witness in violation of the Due Process Clause and Due Course of L aw protec tions; and admitting evidenc e of Crenan’ s extraneous conduct. We will aff irm the district court’s judg ment.BACK GR OUND 1 Evidence at trial showed that Crenan was the owner of C4 Cattle, Inc. and an “orde r buy er” for the Ty J ones Cattle Company

. As an order buy er, he broker ed the sale of cattle by filling order s. Gene rally , Crenan w ould find cattle fr om a ra ncher and make an off

er to buy the cattle on behalf of a fee dlot. Crenan would then ship the cattle from the ranc her, rec eive the cattle at Ty J ones Cattle, write a chec k for the cattle to the ranc her, and ship the cattle to the fee dlot, which would then pay Ty J ones Cattle for the order

. Ty J ones Cattle furnished Crenan with a chec kbook or cre dit line to buy cattle, and Crenan rec eived a commission that was figured into the sale s price of the cattle. The events leading to Cre nan’s theft conviction beg an when he enter ed into a n oral ag ree ment with Rob Be ard, doing business as Double U R anch, allowing Be ard to graze cattle on Crenan’ s ranc h in Milam County near the town of Rosebud. The agre em ent, which had no expiration date, provided that Crenan would provide all fee d and car e for the cattle for $15 per head

eac h month. Be ard, who lived over 600 miles a way from Crenan in El Paso, made four shipments of cattle to Crenan’ s ranc h betwee n May 2008 and November 2009. Initially , Be ard shipped 95 head of cattle to Crenan’ s ranc h, consisting of 89 heife rs and 6 bulls. Be ard’ s second shipment was 120 heifers. Be ard’ s third shipment was 4 bulls. Be ard’ s fourth shipment was 150 head of cattle, consisting of 131 cows and 19 calve s. By the end o f No v em b er 2 009, afte r som e sales and a few deaths of cattle, Be ard’ s herd kept on Crenan’ s ranc h consisted of 332 cows, 19 calve s, and 7 bulls. Be ard’ s cattle wer e brande d with a “Double U” and a 7 or an 8 for the y ear of their birth in 2007 or 2008. Over time, calf crops, i.e., the birth of ca l v es , re s u l t ed in more calve s for Be ard’ s herd.

The fac ts are summarized from the testimony and exhibi ts admitted into evidenc e at trial. 1 2Although Be ard asked Crenan to brand the calve s born to his cattle with a “Double U,” and he sent

Crenan a branding iron for that purpose, acc ording to testimony at trial Crenan never brande d Be ard’ s calve s with Be ard’ s distinguishing mark of owner ship. Be ard noted that if one wanted to 2 steal cattle, sell them, and g et awa y with it, leaving ca t t l e wi t h o ut a mark would ensure that their

owner ship would be untrac eable

. 3

At trial , t h e jury hear d from Special Texas Rang er Hal Dumas of the Texas and Southwestern Cattle Raisers Association—an org anization that assists counties in combating cattle theft—who testified that even if cattle are brande d, brand chec ks are not done for out-of-state sales, Interne t sales, sales made direc tly betwee n two individuals, or at packing plants or fee dlots. Rang er Dumas said that ther e is no way to monitor those transactions for brand r ecor ds, and he noted that only 20% of cattle are rec overe d in thefts of unbrande d cattle. He agree d that someone responsible for br andingor markingan animal has an opportunity to determine whether it will be identifiable: “[I ]f they ’re g oing to se ll them, you know, illeg ally , they wouldn’t brand the m beca use they know if they ’re in the cattle business that we’ re g oing to se e that brand, espec ially on calve s beca use it’s g oing to be a fre sh brand, easy to see, stand out.” He also agree d that if someone stole a larg e g roup of cattle, they

could be r elocated to someone e lse’s ra nch whe re the y

would not be found. Be ard occa sionally visited his cattle at C renan’s ranc h, but initially he was not suspicious about m issing cattle. Then at some point, he stopped rec eiving monthly invoices from

Be ard had offe red to bring a cre w to Crenan to do the branding , but Crenan told Be ard not 2 to worry , that he and some of his day worke rs would do it. L ater , when Be ard asked Crenan whether he had done the bra

nding of the ca lves, Crena

n made e x cuses a

bout why he had not. Be ard testified that simil ar to a brand, the particula r way in which a ranc her notches a calf ’s 3 ear s distinguishes one owne r’s c attle from a nother’s a nd provides conf

irmation of the bra

nd. 3Crenan. B ear d continued making pay ments based on his estimate of the cattle on Crenan’ s ranc h, and Crenan continued cashing Be ard’ s chec ks. In the spring of 2013, Be ard beca me conce rned about his cattle and chec ked on them. He asked Crenan about problems with other parties that Crenan had been dealing with an d, specific ally , cattle shortag es. Crenan told Be ard not to worry , that what Be ard he ard w as a “ misunderstanding .” When Be ard noticed that a larg e number of cattle that he

was paying to g raze on Crenan’ s ranc h wer e missing, he asked Crenan about them. Crenan denied any shortag e, stating that the cattle wer e “just out in the br ush.” Crena

n stated that he would have his ranc h hand bring the feed t ru ck so that Be ard could see that the cattle wer e prese nt, but afte r doing that, the cattle count was still short. Fr om that point on, Crenan did not answe r Be ard’ s calls.

Be ar d t ra v eled to the Har t of Texas Fe edlot in the spring of 2013 afte r the fee dlot manag er, David “Smiley ” Bur nett, called him to look at cattle that Crenan had shipped there

. Mix ed in with the cattle that Crenan ty pically imported from Mexi co wer e other calve s, which Bur nett place d in a separ ate pen. Bur nett also kept cattle on Crenan’ s ranc h, and during a rec ent visit he had

seen calve s there

. Bur

nett identified 16 of the cattle that Crenan had sent to the fee dlot as those that Bur nett had seen at Crenan’ s ranc h, and he suspected those cattle wer e part of Be ard’ s calf crop. At the Hart of Texas fee dlot, Be ard asked to see the cattle Crenan shi pped. Those calves, which had been there at least 100 day s, showed char acte ristics of the Br ahman an d re d An gu s Be efma ster bree ds that “looked exactly like [Bear d’s] cattle.” Crenan had not sold those cattle in Be ard’ s name, but Be ard had no doubt they wer e his. Crenan disag ree d. Be ard filed suit to establish owner ship of the cattle, and he wa s paid for the m after the pac king house wrote a chec k to the fee dlot.

4Be ard subsequently decide d to remove all of his cattle from Crenan’ s ranc h. He did

not have any fee d for them and hauling them back to El Paso was “not an inexpensive proposition,”

so he arr ang ed to s ell them at a livestock auction. In May 2013, Be ard remove d 410 cattle from Crenan’ s ranc h, consisting of 220 cows, 183 c alves, a

nd 7 bulls. This left a shortag e of 97 g rown cattle from the orig inal deliverie s to Crenan’ s ranc h. Rang er Dumas testified that the sale price for all Be ard’ s g rown cattle at t he 2013 auction was $133,800. Be ard estimated that 698 calve s wer e missing from the expected calf crop duri n g the time that his herd g razed on Crenan’ s ranc h.

Rang er D umas testified that he revie wed Be ard’ s rec eipts for the c attle that he se nt to be pastured on Crenan’ s ranc h and found irregularities in Crenan’ s calf sales. He conclude d that “it was obvious that there w[ere] a lot o f ca l v es that had not been sold

. . . or should have been marke ted in Mr. Be ard’ s name that appar ently wer en’t beca use he never rec eived any funding on any calve s for a period up until they clea ned the pasture out there in 2013, I think, with the exception of

a handful.” Rang er Dumas agree d that for a few y ear s t h e ca l f cr o p was “dra stically short.” He testified t hat as part of his investigation, he reviewe d b ra n d -i n s p ector rec ords from 2009 to 2013, which showed that a littl e over 300 head of cattle—mostly calve s and a handful of cows—ha d been sold in the name of C4, Cre nan’s company , while only about 77 head of cattle had been sold in the

name of Double U, for Be ard. The ca t t l e s o l d for both C4 and for Double U wer e of the same descr iption, “blac k or black, white-fa ced calve s.” Rang er Dumas also testified about specific cattle sales shown in two documents from the Calvert L ivestock auction, located 35 miles from Crenan’ s

ranc h. Those inspection-of- cattle documents dated Dec ember 14, 2012, showed that 7 calve s wer e

5sold f

or Double U and 35 calve s of “basic ally the same ty pe” wer e sold f

or C4 Cattle. The chec ks for both of those sa les wer e to be mailed a nd made pa

y able to C4 Cattle. The S tate contended b el o w that Crenan had t he mot ive, opportuni ty , and means to sell the missing cattle as his own in a single transac tion, without Be ard’ s consent, sometime shortly befor e May 2013. The jury hear d evidenc e ab o ut Crenan’ s rec ent incidents of conduct involving hundreds of cattle that, like Be ard’ s, wer e pastured on his ranc h but later discovere d “missing.” The State put on evidenc e that Crenan had the kn o wledg e, intent, motive, opportunity , means, and a

common plan to steal Be ard’ s cattle. At the conclusion of the trial, the jury convicted Crenan of theft from an elder ly person—B ear d, who was ag e 70 in May 2013—in the jurisdictional amount char g ed. The district court sentenc ed Crenan to fiftee n y ear s’ imprisonment and order ed him to pay $575,922 in restitution. C rena

n filed a motion for ne w trial, which the court de nied. This appea l followed.

DISCUSSIO N Issues On e and Tw o: Suf fi cient e vidence supp orte d Crenan’s theft conviction Cr enan’ s first two issues complain about the sufficie nc y o f th e e v id e n c e . Sp e c if ic a ll y , Crenan contends that the State’s proof relied on the ag g reg ation of numerous thefts, b ut the indictment did not alleg e that he committed the ft pursuant to “ one scheme or continuing course of conduct.” See Tex. Penal Code § 31.09. Crenan also contends that the amount of the theft char g ed in the indictment was base d on the expected “ calf crop,” which wa s a “spe culative loss.” Conviction for the offe nse of theft require s proof of an unlawful approp ri at i o n of proper ty with the i n t en t t o d eprive the owner of the proper ty

. Id

. § 31.03(a)

. Using the leg al-suff ici en cy standard, we view the evidenc e in the light most favor able to the verdic t and 6deter

mine whether “ any rational trier of fact could have found the essent i al elements of the crime beyond a re as o n ab l e doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979); Nisbett v. State , No. P D-0041-17, 2018 Tex. Crim. App. L EXI S 560, at *41–42 (Tex. Crim. App. J une 27, 2018). We may not substitut e our judgme nt for that of the jury by ree valuating the weight or cre dibilit y of the evidenc e, b u t m u s t d efer to the jury ’s resolution of conflicts in the evidenc e, weighing of the testimony , and draw ing of rea sonable infere nces from basic fa cts to ultim ate f acts. Isassi v. State , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to direc t and circ umstantial evidence

. Id

.

Circumstantial evidenc e is as probative as direc t evidenc e in est ab l i s h ing a defe ndant’s guilt, and circ umstantial evidenc e can alone be sufficie n t to establish guilt. Nisbett , 2018 Tex. Crim . App. L EXI S 560, at *42. Our role on appea l is restricted to guarding ag ainst the

rar e occur renc e when the fac tfinder does not act rationally

. Id

. Eac h fac t need not point direc tly and independe ntly to guilt if the cumulative forc e of all incriminat i n g ci rcumstanc es is sufficie nt to

s up p ort the conviction. Id .; see, e.g. , Glenn v. State , 235 S.W .2d 922, 923–24 (Tex. Crim. App. 1951) (op. on reh’ g ) (conc luding that circ umstantial evide n ce s upported jury ’s conviction of defe ndant for theft of cattle that wer e later fo u n d i n p en at stocky ard) ; Heidenre ich v. State , 168 S.W .2d 254, 255 (Tex. Crim. App. 1943) (conc luding that circumstantial evidenc e supported jury ’s conviction of defe ndant for theft of cattle that we re on pasture lease d by victim); Flores v. State , No. 10-11-00251-C R , 2 0 1 3 Tex. App. L EXI S 5757, at *20, *25 (Tex. App.—Waco May 9, 2013, pet. ref

’d) (mem. op., not desig nated for publication) (re jecting defe ndant’s challeng e to sufficienc y

of evide nce show ing that he conspire d with others to eng ag e in “c attle rustling” ).

7Relying on Turner v. State , 636 S.W .2d 189 (Tex. Crim. App. 1982) (op. on reh’ g ),

Crenan contends that the State’s proof of multipl e thefts was at varia nce with his indictment, which alleg ed only one theft and no ag g reg ation theory

. Howeve r, as the State notes, the offe nse at issue in Turner was a second- deg ree felony theft of at least $10,000 involving the defe ndant’s submissi on of hundreds of Medica id claims for medical service s never rend er ed. See id

. at 195. The insurer paid each claim by chec k, and none was for $10,000 or more. Id . Ba sed on the fa cts of that case, the defendant could not have been prosecuted for a s econd- degree felony theft of at l east $10,000 unless the amounts of eac h false claim wer e ag g reg ated, and h er i n dictment did not alleg e an ag g reg ation theory

. Id

.

Her e, unlike in Turner , the jury could have rea sonably found that Crenan committed

a thef t o f ca t t l e from Be ard in an amount exceeding $100,000 but less than $200,000 in a single incident, occur

ring on or about May 14, 2013, when Be ard discovere d that sever al of his cattle wer e missing from Crenan’ s ranc h. Cf. id .; see W illiams v. State , No. 06-01-00192- CR, 2002 Tex. App. L EXI S 89 2 5 , at *14–15 (Tex. App.—Texarkana 2002, pet. ref ’d) (op., not designated for p ub l i ca tion) (noting that State chose not to pursue continuing- course -of- conduct theory when i t prese nted evidenc e that victim discovere d missing items on or about date alleg ed in indictment and that value of those items was within jurisdictional rang e for felony t h ef t); Brown v. State , No. 05-94-01683- CR, 1995 Tex. App. L EXI S 3938, at *5–6 (Tex. App.—Dallas May 31, 1995, no pet.) (mem. op., not desig nated for publication) (no t i n g t h at alleg ation of ag g reg ation was

unnece ssary wher e indictment char g ed defe ndant with only one occur renc e of theft from one person duringwhich multiple items were ta ken havingtotal value alleg ed in indictment).

8The evidenc e at trial supported a single -theft theory

. There was testimony that when

Be ard visited Crenan’ s ranc h in May 2013, he disc o v er ed t hat sever al of his cattle wer e missing, including 97 g rown cattle, and that the aver ag e sale price for his g rown cattle at auction in 2013 was $1,311.82. Thus, there was evidenc e that the value of the 97 missing g rown cattle alone exceede d $100,000. There was also evidenc e that Crenan had the opportunity t o m ak e the calve s born to Be ard’ s cows unidentifiable by failing to brand them, and that Crenan had the means to move larg e loads of cattle, even hundr eds, in a sing le transa ction. I t w as further sug g ested at trial that Crenan had a ranc h available in Fa lls County wher e he could place cattle. There was evidenc e that Crenan had the intent to pass off Be ard’ s highe r-qua lity cattle as his own, and that Crena n had the motive to commit cattle theft beca use of his financ ial difficulties. There was also evidenc e that Crenan had

a common plan to conce al this theft, sell the cattle g razing on his ranc h, and obtain the proce eds for himself. This evidenc e, considere d in the light most favor able to t h e v er d i ct, was sufficie nt to convict Crenan o f t h ef

t and was consistent with the theft alleg ation in Crenan’ s indictment. See Nisbett , 2018 Tex. Crim. App. L EXI S 560, at *41–42; W illia ms , 2002 Tex. App. L EXI S 8925, at *14–15; Brown , 1995 Tex. App. L EXI S 3938, at *5–6.

Next, Crenan contends that the number of missing calve s from the expected calf crop was speculative and insufficient to rea ch the $100,000 value alleg ed in his i n dictment. But as set forth in our discussion of Crenan’ s third issue, Be ard testified without objection on the first day of his testimony about the number of calve s that would have been e x pecte d in a g iven y ear , based on his leng thy experience as a ranc her in the cattle business. See, e .g. , Brazos River Conservation & Rec lamation Dist. v. Costello , 169 S.W .2d 977, 988–89 (Tex. Civ. App.—Eastland 1943, writ ref ’d

9w.o.m.) (re jecting challeng e to admissibili ty of ranc her’ s testimony as to “ave rag e siz e of calf crop” in deter mining income from proper ty); Cabaness v. Holland , 47 S.W

. 379, 381–82 (T ex . Civ. App.—Austin 1898, writ ref ’d) (conc luding that cattleman familiar with handling of stock and with knowledg e of such business was qualified to express opinion estimating number of cattle that should have been on rang e and could ref er to g ener al rule used by cattlemen)

. And as we have noted, based

on Rang er Dumas’s testimony that the aver ag e sale price for Be ard’ s g rown cattle at auction in 2013

was $1,311.82, the value of the 97 grown cattle from the orig inal herd that wer e missing exceede d the $100,000 threshold value char g ed in the indictment.

We conclude t h at t h e ev i dence at trial, viewed in the light most favor able to the verdic t, was sufficie nt for a rational jury to find beyond a rea sonable doubt that Crenan committed a si ng le act of t heft from an elderly person in an amount exceeding$100,000 as charg ed, and that such amount wa s not based on a spe culative loss. We overr ule Crena n’s first and se cond issues.

Issue Th ree : No harm from adm ission of B eard’s t estim ony

In his third issue, Crenan contends that the district c ourt err ed by allowing Be ard to testify as an expert for the State beca use Be ard was not qua lified as an expert under Texas Rule of Evidence 702. Specifica lly , Crenan complains that the court q u al i fi ed Beard to testify as to the estimated number of

calve s that should have bee n born to his cows kept on Cre nan’s r anch. Howeve r, Be ard testified without objection on the first day of his testimony —based

on his le ng thy experience as a ranc her in the cattle business —about how many calve s 337 mother 4

We note that Be ard testified about his rele vant experience , stating that he is a 73-year old 4 cattleman who was raised on a cattle ranc h and worke d on it as a youth, obtained his bachel o r’s 10cows should be producing , even in a dry y ear . He s t at ed t h at he made his projec tion for 2011

“smaller, beca

use in dry y ear s cows don’t cycle

. . . or have an irregular cycle. So when I did the p ro j ec t i o n s , I think I lowere d the conception rate or t he calf crop to like 65 perc ent t o 70 perc ent

. Some of the young er cows, I think I projec ted at 70 and some of the older cows at 65. So I kind of adjusted my projec tion on the wea ther and the fee d.” Be ard testified that his conser vative estimate was that he should have been getting a 70% calf crop in a dry y ear like 2011, which wa s over 200 calve s. He denied that he was g etting any wher e near that in income from Crenan’ s sale of his calve s. L ater duringtrial, Be ard was asked about his e stimates of calf crops over the y ear s. Be ard testified ag ain that a dry y ear aff ects the cows’ cycles. He acknow ledg ed that in 2013, on the heels of a se vere , sever al-year droug ht, he estimated that he had a 90% cattle crop. But during the hear t of the droug ht, in the hard y ear s like 2011, he projec ted a 60% calf cr o p “b ec ause of noncycling , nonbree ding.” Crenan objected to that testimony , complaining that Be ard lacke d “any expertise” and c ould not “deter mine in a 100-year

droug ht what the ca lf crop w ould have done .” Even if we wer e to conclude that admission of Be ard’ s testimony was improper, such admission of evide n ce wa s harmless and will not cause reve rsal when other such evidenc e was

rec eived without objection, either befor e or afte r the complained- of ruling

. See Coble v. State , 330 S.W .3d 25 3 , 2 8 2 (T ex . Crim. App. 2010); Mack v. State , 928 S.W .2d 219, 225 (Tex. App.—Austin 1996, pet. ref’d ) (n o reve rsible err or if other evidenc e at trial is admitted without

deg ree i n agr i culture business, worke d as an assistant manag er at a fee dlot, and was in the cattle fee ding business for over a deca de. He testified that he later worke d for his fathe r on the Double U Ranch, which Be ard eventua lly boug ht and wher e he now runs “a cow- calf operation,” involving the bree ding a

nd sale of c alves to fe edlots or fe eder s.

11objection proving same fac t or facts that alleg edly inadmissible evidenc e s o u gh t t o prove)

. Her e,

Crenan is not entitled to reve rsal of his convicti o n an d t h er e is no harm shown based on Be ard’ s testimony about the projec ted calf crop during the hear t of the droug ht beca

use Crenan first allowed Be ard to testify

without objection about his estimate of t he calf crop duringdry y ear s, and Crena

n failed to object to Be ard’ s trial testimony until the following day

. We overr ule Crenan’ s third issue.

Issues F our and F ive: Cre nan fai led t o pr e s e rv ee x pe r t - wi t ne s s - di s c lo s ur ea nd c o ns t it ut io na l com plain ts In his fourth and fifth issues, Crenan contends for the first time that the district court

err ed by allowing Be ard to testify as an ex pert without being disclosed as an expert and that the district court err ed by allowing Be ard to testify as the State’s only expert witness in violation of the Due Process Clause and Due Course of L aw protec tions. To prese rve err or for appellate revie w, a party must make a timel y an d s p ec i fic objection at the earliest pos sible opportunity and obtain an adver se ru l i n g fr o m the trial court, and the complaint on appea l must corr espond to the objection made at trial. Y

azdchi v. State , 428 S.W .3d 831, 8 4 4 (T ex. Crim. App. 2014); Tex. R. App. P. 33.1(a)

. Her e, the rec ord ref lects that Crenan never objected to Be ard testifying as an expert based

on a contention that he had not been d i s cl o s ed as a testifying expert befor e trial. Nor did Crenan prese nt to the district court a ny of his constitutional complaints about the Due Proce ss Clause and Due Course of L aw protections. Thus, he failed to preser ve these complaints for our r eview. We

overr ule Crena n’s fourth a

nd fifth issues.

12Issue Si x: No abuse of discretion in admission of extr aneous-condu ct evidence In his six th issue, relying on Harrell v. State , 884 S.W

. 2d 154, 160 (Tex. Crim. App. 1994), Crenan contends that the district court err ed by admitting evidenc e of his extraneous conduct without first making an initial deter mination that the jury could rea sonably find beyond a rea sonable doubt that he committed such conduct. Crenan further contends that the court was require d to make that deter mination “at the prof

fer of the e vidence .” Howeve r, afte r Harrell , the Texas Court of Criminal Appea ls held that the timing of when the trial court must make that deter mination can be afte r t h e i n i t i al proff er, so long as the extraneous evidenc e is “conne cted up” with the defe ndant befor e the end of trial. Fischer v. State , 268 S.W .3d 552, 557–58 (Tex. Crim. App. 2008) (“ Harrell did not decide that a trial court’s ruling

on an initial proff

er is dispositi ve of the admissibili ty issue reg ardle ss of what evidenc e is prese nted afte rwa rds during the trial.”); see W olfe v. State , No. 11-15-00004- CR, 2017 Tex. App. L EXI S 246, at *6–7 (Tex. App.—Eastland J an. 12, 2017, no pet.) (m em. op., not desig nated for publication) (noting that trial court may allow evidenc e of extraneous offe nses even if State does not offe r proof that offe nse occur

red beyond rea sonable doubt unt il afte r its proff er)

. The Court stated that the “purpose of the proce dure descr ibed in Harrell was to clar if y that a trial court cannot admit extraneous-off

ense evidenc e unless a jury could find beyond a rea sonable doubt that the defe ndant committed the extraneous offe nse.” Fischer , 268 S.W .3d at 558. That purpose can be achie ved, as it was here , with the subsequent introduction of evidenc e allowing the jury to find b ey o n d a

rea sonable doubt that the de fenda nt committed the ext rane ous conduct. See id.

13Ex trane ous-conduc t evidenc e is admissible under the theft statute, once a defe ndant

pleads not guilty to a cha rg e of the ft, to show a def endant’ s knowledg e or intent: “[E]vidence that the actor has previously participated in rec ent transac tions other than, but simil ar to, that which the prosec ution is based is admissible for the purpose of showing knowledg e or intent and the issues of knowledg e or intent are raised by the ac t o r’ s p lea of not guilty .” Tex. Penal Code § 31.03(c) (1). Simi larly , Texas Rule of Evidence 404(b) provides that extraneous-c onduct evidenc e, while inadmissible g ener ally , is admissible for purpose s s u ch as “proof of motive, opportunity , intent, prepa ration, plan, knowledg e, identity , or absenc e of mista k e or acc ident.” Tex. R. Evid. 404(b). Texas Rule of Evidence 403 provides that even rele vant evidenc e may be excluded if its proba tive value is substant i al l y outweig hed by the dang er of unfair prejudice , confusion of the issues, or misleading the jury ; by considera tions of undue delay ; or by n eedle ss prese ntation of cumulative evidenc e. Tex. R. Evid. 403. When conductinga Rule 403 analy sis, the trial court must balanc e: (1) the inhere nt probative forc e of the proff ere d item of evidenc e along with (2) the proponent’s need for that evidenc e ag ainst (3) any tendenc y of the evidenc e to sug g est decision on an improper basis, (4) any tendenc y of the evidenc e to confuse or di s t ra ct t h e j u ry from the main issues, (5) any tendenc y of the evidenc e to be g iven undue weight by a jury that has not been equipped to evaluate the probative forc e of the ev i d en ce, and (6) the likelihood that prese ntation of the evidenc e will

consume an inordinate amount of t ime or m ere ly repe at evidence alrea dy admitted. Gigliobianco

v. State , 210 S.W .3d 6 3 7 , 6 4 1

– 4 2 (Tex. Crim. App. 2006). These fac tors may blend toge ther in prac tice. Id . at 642.

14We revie w a trial court’s decision to admit or exclude evidenc e, as well as its decision

as to whether the probative value of evidenc e was substantially outweig hed by the dang er of unfair prejudice , under an ab u s e of discretion standard. Gonzalez v. State , 544 S.W .3d 363, 370 (Tex. Crim. App. 2018). The trial court does not abuse its discretion unless its deter mination lies outside the z one of rea sonable disagree ment. Id .; see United St ates v. Fields , 483 F.3d 313, 354 (5th Cir. 2 0 0 7 ) (noting that trial courts are aff orded “espe cially high level of defe renc e” for Ru l e 4 0 3 deter minations); see also Keller v. Stat e , No. 03-13-00501-CR, 2014 Tex

. Ap p . L E XI S 12506, at *14 (Tex. App.—Austin Nov. 20, 2014, no pet.) (me m. op., not designated for publication).

Her e, on the first day of trial and outside the hear ing of the jury , the State disclosed what it intended to show as to eac h instance of Crenan’ s extraneous conduct. The State contende d that such evidenc e was admissible under the theft statute in section 31.03(c) of the Texas Penal Code

or under Texas Rule of Evidence 404(b), that it was rele vant under Texas Rule of Evidence 401, and th at t h e p ro b ati ve value of the evidenc e was not substantially outweig hed by a dang er of unfair prejudice under Texas Rule of Evidence 403. The district court ruled on eac h proff ere d instance of extraneous conduct, and four of those wer e pre s en t ed t o t he jury

. During trial, the extraneousconduct evidenc e was “conne cted up” with Crenan by testimony from law enfor ceme nt office rs who investigated the incidents, testimony fr o m the victims, and by an agree d judgme nt. See Fischer , 268 S.W .3d at 558; cf. Higginbotham v. State , 356 S.W .3d 584, 592 (Tex. App.—Texarkana 2011, pet. ref ’d) (noting that jury wa s p resented only one conclusory statement as proof of extraneous offe nse).

151. Cre nan’s charge of cattle t heft f romHart of Texas Cattle F eeder s The first instance of extraneous conduct admitted into evidenc e was Crenan’ s arr est and indictment for theft of livestock from Har t of Texas Cattle Fe eder s. The char g e resulted when hundreds of Hart of

Texas’s cattle we re discove red missingin late 2012 from a herd of 1,600 that Crenan was expected to have on his ranc h. The com p t ro ller for Har t of Texas, Ty McMurtry , testified that Har

t of Texas financ ed cattle on Crenan’ s ranc h, including a transac tion that involved financ ing 1,600 cattle at one ti me. McMurtry discussed t ransa ctions in which C rena n would ship loads of about 100 c attle at a time.

McMurtry testified that he first beca me conce rned about Har

t of Texas’s cattle based

on a report from their bank inspector. M cM u rt ry s t at ed that the i nspector would visit two to four times a y ear to inspect the cattle and g et head counts, which he would repor t back to the bank, assuringthem of their se curity interest. McMurtry

stated that af

ter the inspec tor issued his report, he and Har

t of Texas’s manag er, Smil ey Bur nett, attempted to verify the information repor ted by the bank inspector. Ultimately , McMurtry and Bur nett went t o t h e C rena

n ranc h and discovere d a shortag e of 390 cattle. Crenan told McMurtry that 271 cattle ha d been stolen from C rena n’s pens in Presidio. McMu rt ry noted that even with Crenan’ s explanation, over 100 cattle wer e still

unacc ounted for.

Special Texas Rang er Marvin Wil ls testified that Crenan told a differ ent story about Har t of Texas’s cattle. When he asked Crenan about t h em , C re nan told him that there was no problem; all of Burnett’s cattle wer e there. Rang er W ills visited the ranch wit h Crenan, and afte r

16Crenan identified only 189 head of cattle as belong ing to Har t of Texas, Rang er Wil ls repor ted Crenan’ s count to Bur

nett. Smil ey Bur

nett of Har

t of Texas Cattle testified that he pastured 1,600 steers on Crenan’ s ranc h. When Bur nett went to the ranch t o chec k on them , h e fo u n d o n l y 246 cattle, but C renan told him that the rest wer e in an east pasture that was muddy and inacc essible b ec au s e o f

rec ent rain. Crenan late r told Bur nett that approximately

260 cattle ha d been stolen f rom his pens in Presidio. That news cause d Bur nett to visit Crenan’ s ranc h ag ain, t h is time including the previously

inacc essible pasture , wher e B urnett ag ain found only 246 cattle. 2. Cre nan’s charge of cattle t heft f romAndy Rogers The second instance of extraneous conduct a d mi tt e d in to e v id e n c e w a s Cr e n a

n ’ s 2013 char g e of theft and misapplication from Andy R o ger s . This theft involved over 200 steers that Crenan had ag ree d to pasture at his ranc h but wer e later discovere d “missing.” Roge rs testified that he runs the Roge rs and Sons Fe edlot, and that he had agree d to pay Crenan to buy

some steer s for him, fee d the steers on Crenan’ s ranc h until they weighe d 6 0 0 p o unds, and then send them to Roge rs’s feed y ard. Roge rs t estified that Cr en an b o u ght steers for hi m and put them on Crenan’ s

ranc h in differ ent loads, including one load of 192 cattle. After Crenan “truc ked them up here ,” he “suppos[ed]l y turned them out on his g rass.” But when Roge rs went to ch eck on his cattle at Crenan’ s ranc h in April 2013, he saw that there wer e none. Roge rs notified Milam County Sheriff David Gre ene, who advised Roge rs to send a cer tified letter to Crenan reque sting return of his cattle

or his money . After the letter was returne d unclaimed, Roge rs testified that he told Sheriff Gre ene that he wanted to pres s ch ar ges . Wit hin three day s, the sheriff informed Roge rs that Crenan had

17g iven him two cer tified che cks for Roge rs’s cattle: one in the amount of $81,758.52 and the other in the amount of $82,000. Copies of both che cks we re a dmitted into evidence.

Roge rs testified that afte r Crenan repa id him the money for the cattle, he was no longe r interest ed i n p ressing charg es ag ainst Crenan. On cross-e x amination, Roge rs was asked whether he was awa

re that his steers were on a ranc h in Fa lls County belong ing to Diane Dolan. Roge rs t es t i fi ed t hat he had never hear d of Dolan and that no one told him his cattle wer e at her

ranc h. On re- direc t, he testified that he did not think it was plausible that his cattle we re just somewher e else , but if he had be en so notified, he w ould have ve rified that the c attle wer e ther e.

Rang er Wills and local law e nforc ement also testified a bout the theft from Roge rs. Rang er Wil ls stated that afte r he rec eived Roge rs’s repor t, he drove to Crenan’ s ranc h in Marc h 2013 and was unable to observe any cattle with Roge rs’s brand. He testified that he made this trip within 21⁄2 months of inspecting Crenan’ s ranc h for Bu rn et t ’s cattle. Milam County Chief Deputy Chris Whit e testified that Crenan was arr ested and char g ed with theft of proper ty , less than $200,000 but more than $100,000, and mi sapplication of funds. He stated that afte r news of t he offense spread throug h the cattle industry , Be ard hear d about it and reque sted an investigation beca use he also had cattle on Cre nan’s r anch. Deputy Whit e testified that in Jul y 2013, a fe w months after the Rog ers

case was resolved, he obtained war rants for the thef

t o f livestock from Be ard. Sheriff Gre ene testified that he was awa re o f o t h er thefts in Milam County involving Crenan when Roge rs was neg otiati n g re s t itution for the cattle, and that he advised Roge rs, “if he could g et his money , he neede d to ge t it because I didn’t know wher e this was g oing to e nd up.”

183. Cre nan’s charge of cattle t heft f romDon Lew is T h e t h i rd instance of extraneous conduct admitted into evidenc e was a 2013 theft from cattle buy er Don L ewis. This th ef t i n v o lved Crenan taking 20 steers to the Har t of Texas fee dlot and selli ng them in his own name. Rang er W ills testified t hat he investigated this offe nse and that he w as able to verify that Crenan stole c attle from L ewis. 4. Cre nan’s $340,000 u npai d agreed judgm ent on loan to bu y catt le The fourth instance of extraneous conduct admitted into evidenc e was Crenan’ s 2007 unpaid agree d judgme nt in fav o r of Charlie Boyd for Crenan’ s loan to buy cattle. J ohn Robert Hodg e, who met Crenan when Crenan’ s family was a customer of

Ty J ones Cattle, testified about Crenan’ s conduct. Hodg e st ated that Crenan neede d mor e cr ed i t t h an he could g et from the l ocal bank, and that he borrowe d money from Boyd, an elder ly man who was Hodg e’s friend. Boyd’s loan

was made so that Crenan could buy calve s, raise them on his ranc h, and sell them. Hodg e testified that this wa s a short-term loan, just for that set of cattle, and that Boyd expected pay ment with interest whe n the cattle were sold.

L ater , Boyd was unable to g et Crenan t o re t u rn h is phone call, and he beca me

conce rned about the cattle he had financ ed. Boyd, who was too old to drive, asked Hodg e to confirm whether the cattle wer e still on Crenan’ s ranc h. W h en Ho d g e saw that the number of cattle was short, Crenan told him th at t h e ca t t le wer e “off in the brush.” But Hodg e noticed that a pond of water near that brushy

are a, fr om which the cattle wer e supposedly drinking , was overg rown with tall w eeds indicating that no cattle ha d been dr inking there

. Hodg e conclude d that the cattle Boyd financ ed for Crenan were not there

. After the vi sit t o C re n an ’s ranch, Hodg e refer red Boyd to an

19attorney . An agree d judgme nt of $343,109.50 was enter ed ag ainst Crenan, and a c ertified c opy of the judgme nt was admitted into evidenc e below. Hodg e testified that neither Boyd nor Boyd’s estate

ever obtained any

money in acc ordanc e with the judg ment for the missingcattle. The d i s t ri ct court did not abuse its discretion by ruling that these four instances of conduct wer e ad m i s sible under the theft statute or under Rule 404(b), and that the evidenc e was rele vant. The cattle thefts from Har t of Texas and Roge rs wer e rec ent incidents of conduct that wer e simil ar to the underlying prosec ution a nd indicated Crenan’ s knowledg e or intent to commit c attle theft fr om Be ard. SeeTex. P enal Code § 31.03( c)( 1). They involved hundreds of

cattle that we re pastured on Crenan’ s ranc h but later d i s co v ered “missing.” The cattle theft from Roge rs resulted in Crenan’ s arr est, but he was not prosec uted beca use Roge rs lost intere st in pressing char g es afte r Crenan paid him $163,758.52 for the cattle. Additionally , evidenc e of Crenan’s rece nt theft from L ewis of stee rs that Crena n later sold to a fee dlot in his own name showed Crenan’ s intent to pa ss off c attle belong ing to other s as his own to obtain financia l ga in. See id

.

All of these cattle- theft incident s—including Crenan’ s $343,109.50 unpaid agree d judgme nt to an elde rly

man from whom Cre nan borr owed money to buy and raise cattle that wer e

n e ver found on Crenan’ s ranc h—offe red proof of Crenan’ s “motive, opportunity , intent, p r e p a r a ti o n , plan, knowledg e, identity , or abse nce of mistake or ac cident.” SeeTex. R. Evi d. 404(b). F urther, althoug h a limit ing instruction w as included in the char g e, the defe nse did not inform the jury that it could consider the ex trane ous-conduc t evidenc e only if it found bey ond a reasonable doubt that Crenan c o mmitt ed the wrong ful conduct. The extraneous-c onduct evidenc e showed that Crenan had financ ial difficulties, prov i d i n g h i m wi th a motive to steal Be ard’ s cattle. Whil e the prosec ution

20need not pr ove motive, evidenc e of motive is a signific ant circ umstance indicating guilt. Russo v.

State , 228 S.W .3d 779, 794 (Tex. App.—Austin 2007, pet. ref ’d); see Nisbett , 2018 Tex. Crim. App. L EXI S 560, at *50 (“ W h i l e m o t i v e is not by itself enough to establish guilt of a crime, it is a signific ant circ umstance indicating guilt.”); see also Benne tt v. Rey nolds , 315 S.W .3d 867, 868 n.3 (T ex . 2010) (noting that livestock crimes rose during economic downturn and that L eg islat u re stiffene d criminal penalties for stealing cattle)

. Rang er Wil ls testified that he investiga ted multipl e

case s of cattle that went missing from Crenan, that Crenan “wa s in a bind,” and that Crenan had been throug h bankruptc y . Rang er Wil ls ag ree d that Crenan’ s debts to Har t of Texas, Roge rs, and L ewis, along with Boyd’s judgme nt ag ainst Crenan, offe red some indication of Crenan’ s motive to steal from B ear d. The incidents involving the Har t of Texas F eedlot and Roge rs in particular showed that Crenan had the means to reloc ate larg e loads of cattle, even hundreds, in a single transac tion as alleg ed in Be ard’ s in d ic tme nt. Def ense counsel also sug g ested that Crenan had someone else’s ranc h available in another county wher e he could place cattle. The extraneous-c onduct incidents showed that Crenan had the intent to pass off cattle belong ing to others as his own cattle so that he could sell them and keep the proce eds for himself. The incidents also showed a common plan to commit theft from cattlemen who place d their cattle on Crenan’ s ranc h and to conce al such theft by denying that any cattle we re m i s s i n g an d telling those who visited the ranc h that their cattle wer e in brushy or muddy locations wher e the cattle wer e hardly visible or inacc essible. Fur ther, these in ci dents showed the absenc e of mistake or acc ident, linking Crenan’ s pattern of cattle theft to his conduct in

21this case and making t h e ch an ce s o f a mere bookkeeping err or as to the number of Be ard’ s cattle

much less proba

ble.

District court’ s rulin g The district court did not abuse its discretion by deter mining that the probative value of the e xtra

n e o u s - c o n d

uct evidenc e was not substantially outweig hed by a dang er of unfair prejudice

. See Tex. R. Evid. 403. The court could have rea sonably deter mined that the State had a considera ble need for such evidenc e, g iven the circ umstantial n a tu r e of the case and Crenan’ s demonstrated ability to avoid prosec ution by enter ing into an agree d judgme nt that he never paid and denying to cattlemen and law enfor ceme nt that the cattle wer e missing. The court could have rea sonably deter mined that the tendenc y of the evidenc e to sug g est decision on an improper basis, to confuse or distract the jury from the main issues, or to be g iven undue weight by the jury was min i mal. The court’s char g e instructed the jury that it should consider the extraneous-c onduct evidenc e only if it found beyond

a rea sonable doubt that Crenan “did in fac t commit the wrong ful act” and then, only for the purpose of showinghis knowledg e or intent. W e presume t he jury followed those instructions. See Thrif t

v. State , 176 S.W .3d 221, 224 (Tex. Crim. App. 2005). The evidenc e about the extraneous conduct was not over ly technica l or confusing and did not involve topics that the jury was not equippe d to consider. See Keller , 2014 Tex. App. L EXI S 12506, at *17. And the court could have rea sonably deter mined that the time neede d to link Crenan to the extraneous conduct, which require d revie w of the fac ts and the parties’ relationships, did not co n s u m e an inordinate amount of time or mere ly repe at e v i d en ce alre ady admitted. See id

. We conclude that the court did not abuse its discretion by admitting the extraneous-c onduct evidenc e based on its implicit deter mination that the jury could 22have found beyond a rea sonable doubt that Crenan committed the extraneous conduct. We overr ule Crenan’ s six th issue.

CONCLUSION

We affir m the district court’s judg ment of convic tion.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin Affir med Filed: August 15, 2018 Do Not Publish

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