### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06

- 1 0

- 00 077

- CR

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DONALD WILLIAM SNYDER, JR. , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Cass County, Texas

Trial Court No. 2009F00162

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Mo rriss2 MEMORANDUM OPINION

In the Cass County jury trial of Donald William Snyder , Jr., for felony driving while

intoxicated (DWI) , Snyder ’ s friend, Jerry Barton, was allowed to testify, over objection, that

Barton had seen Snyder intoxicated before. After his conviction and receiving a life sentence, 1

Snyder urges only one issue on appeal, that admitting Barton ’ s testimony allegedly concerning a

prior bad act by Snyder was erroneous and harmful. We disagree and affirm the judgment of the

trial court.

Barton had received payment for work he and Snyder had done for mowing a yard and

cleanin g a swimming pool. Barton had pulled his vehicle alongside Snyder ’ s vehicle, as they

drove along the road

, and tried to give Snyder his part of the money . Barton believed Snyder

could have be en intoxicated because of ― the way he was getting over in my lane. He just didn ’ t

do it once. I don ’ t know if he was paying attention or not watching the road. ‖ Therefore, Barton

reported Snyder ’ s condition to police.

Mat t hew Bryant , a s tate t rooper with the Texas Department of Public Safety, was

dispatched to i nvestigate. Bryant observed that

[Snyder] wasn ’ t able to control and stay in his lane of travel. He had moved over into the oncoming lane to the lefthand side of the center stripe.

. . . .

1 A jury found Snyder guilty, Snyder pled true to two previous felonies as sentence enhancements, and the jury assessed punishment at life imprisonment. The trial court sentenced Snyder consistent with the jury ’ s assessment.3

Then I observed the vehicle come back across and actually dri ve into the bar ditch for a time and then come back onto the road, and that ’ s when I initiated my red and blue lights.

Bryant then observed Snyder throw a can, which was later identified as a beer can, out the window

and pull up to a residence. Bryant te stified that Snyder had bloodshot eyes, was unsteady, spoke

― with a thick tongue, ‖ and smelled of alcohol. After Snyder failed to follow Bryant ’ s instructions

for the horizontal gaze nystagmus field sobriety test, Bryant arrested him for DWI

.

At the po lice station, Snyder failed other field sobriety tests, including the horizontal gaze

nystagmus, the walk and turn, and the one

- leg

- stand tests . Snyder refused to provide a specimen

of blood or breath and refused to sign the DIC

- 24 form.

At trial, Snyd er ’ s son Christopher testified his father suffered from seizures as a result of a

two

- story fall and head injury. Snyder did not inform B ryant of his medical problems.

Snyder ’ s sole issue on appeal is that the trial court erred in allowing Barton to test ify, over

objection, concerning an incident of intoxication unrelated to the instant offense to be introduced.

Snyder argues Barton ’ s testimony constitutes evidence of other acts which are inadmissible to

prove the character of a person in order to show a ction in conformity therewith. Snyder also

argues the probative value of the testimony was clearly outweighed by the prejudice. 2 The State

argues Barton ’ s testimony was relevant, apart from its tendency to show character conformity, to

2 Snyder complains about the trial court not holding a formal hearing. But a tri al court ― does not have to conduct a formal hearing or even announce on the record that it has mentally conducted this balancing test .‖ Crivello v. State , 4 S.W.3d 792, 797 (Tex. App.

— Texarkana 1999, no pet.)

.4

explain Barton ’ s basis for concluding Snyder was intoxicated when he made his report to the

police. When asked by the State whether he had ― ever seen Mr. Snyder intoxicated, ‖ Barton

responded in the affirmative. Barton testified that , based on his past observations, Snyder, when

intoxicated, appears ― all white and pale ‖ and ― kind of out there. ‖ The State argues Barton ’ s prior

observations explain why Barton believed Snyder was intoxicated on the occasion in question.

A trial court ’ s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. McDonald v. State , 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) ; Willover

v. State , 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)

. A trial court does not abuse its discre tion so

long as the decision to admit evidence is within the ― zone of reasonable disagreement. ‖

Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh ’ g).

To be admissible, evidence of other acts (1) must be relevant to a fact of cons equence in the

case aside from its tendency to show action in conformity with character; and (2) the probative

value of the evidence must not be substantially outweighed by the danger of unfair prejudice. 3

Page v. State , 213 S.W.3d 332, 336 (Tex. Crim. Ap p. 2006) ; see T EX

. R. E VID

. 401, 402, 403,

404(b); see also Montgomery , 810 S.W.2d at 389

– 90 (describing factors to consider when

balancing under Rule 403).

The exceptions listed in Rule 404(b) are an ― illustrative, not exhaustive, list of exceptions. ‖

Daggett v. State , 187 S.W.3d 444, 451 n.13 (Tex. Crim. App. 2005) . Whether Barton ’ s testimony

3 Unfair prejudice does not arise from the mer e fact that evidence injures a party ’s case. Unfair prejudice may result from the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. Casey v. State

, 215 S.W.3d 870, 883 (Tex. Cr im. App. 2007).5

was relevant and admissible under the Rule 403 balancing test is within the zone of reasonable

disagreement. Therefore, the trial court did not abuse its discre tion in admitting Barton ’ s

testimony.

Even if the trial court erred in admitting the challenged testimony, the error would be

harmless. Error in admitting evidence concerning extraneous offenses is reviewed under Rule

44.2(b) of the Texas Rules of Appellate Procedure. Casey , 215 S.W.3d at 885 ; see T EX . R. A PP

.

P. 44.2(b) ( an appellate court must disregard a nonconstitutio nal error that does not affect a

criminal defendant ’ s ― substantial rights ‖ )

. A criminal conviction will n ot be reversed for

nonconstitutional error if the appellate court, after examining the record as a whole, ― has fair

assurance that the error did not influence the jury, or had but a slight effect. ‖ Johnson v. State

,

967 S.W.2d 410, 417 (Tex. Crim. App. 19 98) ; see Motilla v. State , 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002)

. The State placed extremely little emphasis on Barton ’ s testimony that he had

previously seen Snyder intoxicated. During its closing argument, the State emphasized Barton ’ s

observations that Snyder smelled of alcohol. 4 In addition, Trooper B ryant ’ s testimony provided

ample evidence that Snyder was intoxicated on the occasion in question. Because Barton ’ s

testimony, consisting of approximately one page of the reporter ’ s record, was not emphasized by

the State, we have a fair assurance that the challenged testimony did not influence the jury or had

but a slight effect. We overrule Snyder ’ s sole issue.

4 Barton testified he and his girlfriend arrived at Snyder’s house while the state trooper was still present. Barton admitted he smelled alcohol on Snyder.6

For the reasons stated, we affirm.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 27, 2010

Date Decided: December 29 , 2010

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