IN THE

TENTH COURT OF APPEALS

No. 10-10-00073-CR

KRISTOPHER KEITH KINCHLOE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 08-00590-CRF-272

MEMORANDUM OPINION

Kristopher Keith Kinchloe appeals from his conviction for the offense of Assault 

with Bodily Injury/Family Member which was enhanced by a prior conviction for the 

same offense. Kinchloe pled not guilty to the offense, but pled true to the enhancement 

before the jury. Kinchloe was sentenced to six years in prison by the trial court. 

Kinchloe complains that the trial court erred in submitting an improper limiting 

instruction regarding his prior conviction that served as the basis of the enhancement 

paragraph as an extraneous offense in the jury charge. Because we find no reversible 

error, we affirm the judgment of the trial court.
Kinchloe v. State Page 2

Admission of Extraneous Offenses

Kinchloe contends that the evidence regarding his prior conviction was 

admissible solely for jurisdictional purposes and could not be considered for any of the 

reasons relating to extraneous offenses in Rule 404(b) of the Rules of Evidence. See TEX.

R. EVID. 404(b). To the extent that Kinchloe’s issue can be read to complain that the 

evidence was used for any other purpose pursuant to rule 404(b), that objection was 

waived by Kinchloe’s failure to request a limiting instruction at the time the evidence 

was offered. Because there was no request for a limiting instruction at the time of the 

admission of his stipulation regarding the prior conviction that extraneous act evidence 

became “part of the general evidence and [could] be used for all purposes.” See Delgado 

v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).

In his brief, Kinchloe also sets forth the balancing test required for determining 

admissibility pursuant to Rule 403. See TEX. R. EVID. 403; De La Paz v. State, 279 S.W.3d 

336, 348-49 (Tex. Crim. App. 2009). However, that objection was also not made at the 

time of the admission of the evidence, but was referenced during the jury charge 

conference. As such, any complaint relating to Rule 403 was waived. TEX. R. APP. P. 

33.1(a). 

Jury Charge Error

Kinchloe complains that the trial court’s limiting instruction that was included in 

the charge relating to extraneous offenses was erroneous because it allowed the jury to 

consider the prior conviction for purposes other than for establishing felony 

jurisdiction, those being the intent of the defendant and rebuttal of a defensive theory. 

The instruction of which Kinchloe complains stated:
Kinchloe v. State Page 3

You are instructed that if there is any testimony before you in this case 

regarding the defendant’s having committed offenses other than the offenses 

alleged against him in the indictment in this case, you cannot consider said 

testimony for any purpose unless you find and believe beyond a 

reasonable doubt that the defendant committed such other offenses, if any 

were committed, and even then you may consider the same in 

determining jurisdiction, the intent of the defendant, and rebuttal of any 

defensive theory in connection with the offense alleged against him in the 

indictment in this case, and for no other purpose.

(emphasis added). However, this section by its language expressly does not apply to 

the prior conviction because it is limited to other offenses besides those alleged in the 

indictment. The prior conviction of which Kinchloe complains was contained in the 

indictment, read to the jury as part of the indictment, Kinchloe pled true to that prior 

conviction before the jury, and a signed, sworn stipulation regarding that conviction 

was admitted into evidence. 

Additionally, without a request for a limiting instruction at the time of the 

admission of the evidence, the trial court was not required to submit a limiting 

instruction in the jury charge regarding the use of that prior conviction. Delgado, 235 

S.W.3d at 251. Therefore, the charge was not erroneous on this basis. Kinchloe does not 

complain of any other extraneous offenses admitted into evidence or that there are 

other errors in the charge. We overrule Kinchloe’s sole issue.

Conclusion

Finding no reversible error, we affirm the judgment of the trial court.

TOM GRAY

Chief Justice
Kinchloe v. State Page 4

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed July 20, 2011

Do not publish 

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