Affirmed and Opinion Filed January 14, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00415-CR

CHRISTIAN PRICE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4

Dallas County, Texas

Trial Court Cause No. F18-76441-K

MEMORANDUM OPINION

Before Justices Myers, Partida-Kipness, and Carlyle

Opinion by Justice Myers

Appellant Christian Price was convicted by a jury of aggravated assault with 

a deadly weapon. The trial court assessed punishment at forty years in prison. In 

two issues, appellant argues the court erred in admitting extraneous offense evidence 

and that the sentence is illegal. The State brings two cross-points requesting

modification of the judgment. As modified, we affirm. 

DISCUSSION

1. Extraneous Offense Evidence

In his first issue, appellant contends the trial court’s admission into evidence 

of a 2017 extraneous aggravated assault offense in the State’s case-in-chief was an 
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abuse of discretion and a violation of rule 404(b). The State responds that the court 

did not abuse its discretion because appellant opened the door to the disputed 

evidence and, even assuming the trial court erred, appellant was not harmed.

Appellant was indicted for aggravated assault with a deadly weapon involving 

family violence. See TEX. PENAL CODE § 22.02(b). The indictment alleged that on 

or about October 7, 2018, appellant intentionally, knowingly, and recklessly caused 

bodily injury to Loy Lowe by shooting her with a firearm, and that he used or 

exhibited a deadly weapon, a firearm, during the commission of the assault. The 

indictment further alleged appellant “has and has had” a dating relationship with 

Lowe and that he was a member of Lowe’s family and household.

While cross-examining Lowe during the State’s case-in-chief, appellant’s trial 

counsel questioned her about her prior relationship with appellant and if appellant

had ever abused her:

Q. And just so we’re clear, when you and [appellant] were together, he 

never hit you, he never pushed you, he never put his hands on you in 

any form or fashion; is that correct?

A. No, he didn’t. 

Q. So for him to pull a weapon on you, would be totally out of 

character; is that correct?

A. Yes.

Q. Okay. He had never harmed you in any way before; is that correct?

A. Not physically. He’s never physically touched me.

Appellant testified during the defense’s case-in-chief. Prior to testifying, the 
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trial court admonished him about his right not to testify, including that if he testified

the State would be able to ask him “about everything.” The relevant portion of the 

record reads as follows: 

THE COURT: All right. We’re back on the record in Cause Number 

F18-76441, styled the State of Texas versus Christian Price. Mr. Price, 

I want to talk to you and your lawyer may also want to address you 

about, you know, your right not to testify, how you don’t have to do it. 

But more so than that, I think you know you don’t have to testify. You 

understand that if you do testify, when you get on the stand, your 

lawyer’s going to ask you things that he wants to bring out because 

that’s his job. And then the State’s going to ask you all kinds of things 

that won’t be nice and that you don’t want to talk about like, you know, 

anything that’s ever happened in your history that might put you in a 

bad light or, you know, criminal history, or just anything else you’ve 

ever done in your life, including spitting on the sidewalk. They can ask 

you that kind of stuff. They don’t have to ask about what we’ve talked 

about now. They can ask about everything.

Sir, do you understand that?

THE DEFENDANT: Yes, ma’am

THE COURT: All right. And I know your lawyer has talked to you 

about it. Knowing and understanding that, do you still want to testify?

THE DEFENDANT: Yes, ma’am.

When the trial court asked defense counsel if he had any questions, he replied:

No, Your Honor. I think that covers that issue. The only other issue we 

had was that the State has informed me that they feel that the door has 

been opened to [appellant]—to a pending case, based on my question 

of asking [Lowe] was that out of his character. And if they want to ask 

him, did he commit this other offense, that’s fine. But I think they also 

want to introduce pictures and police reports from the other case, which 

I would be objecting to.

The trial court reviewed the relevant testimony before listening to the 

arguments of counsel. The State argued it should be allowed to question appellant 
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about a pending extraneous offense, i.e., that he used a firearm to beat another 

woman. The State argued that defense counsel’s question, “So for [appellant] to pull 

a weapon on you, would be totally out of character,” left a false impression with the 

jury about a character trait of appellant, and “that it would be out of character for 

[him] to pull that firearm out.” Defense counsel argued that the question referred to 

by the State was specifically about appellant’s character towards Lowe, not 

appellant’s character in general, and that the State should not be allowed to ask him 

questions about the pending extraneous offense. The trial court concluded that 

“because it’s wide open, I would say you can talk about it, but out of an abundance 

of caution, I won’t let you put pictures in.” 

Appellant testified and denied shooting Lowe. On cross-examination, the 

prosecutor asked him if he had had relationships with other women while dating 

Lowe—in particular, with Margery West—and appellant agreed he had. Appellant 

also agreed he had a family violence case involving West, but he testified he did not 

know about the case until he had been arrested in this case. Defense counsel objected 

to the State’s questioning, arguing, “We’re going beyond the scope and getting into 

404(b) stuff that’s inappropriate at this time.” After an off-the-record discussion at 

the bench, the State asked appellant about a pending charge for aggravated assault 

against West:

Q. After you got arrested, were you or were you not aware of a warrant 

for an aggravated assault case against Margery West?

A. I was notified of it once I was arraigned. And once I was arraigned 
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about it, I immediately asked why, because I didn’t have no aggravated 

assault charge.

Q. Now, that case is from 2017; is that correct?

A. Yes. On the indictment it’s 2017.

Q. Okay. And your attorney earlier asked the question, right, if that is 

out of your character to pull that firearm, right?

A. Yes.

Q. And in that case there’s a firearm alleged in that case; isn’t that right?

A. Yes, it is, but it’s a lie.

Q. Okay. So it was not true that she was assaulted with a firearm in 

2017?

A. Right. It’s not true.

Q. Okay.

The jury charge for the guilt-innocence phase contained the following limiting 

instruction:

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

regarding [appellant] having committed offenses, if any, other than the 

offense 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, only consider 

the same in determining the intent, knowledge, design, scheme, or 

system of the defendant, if any, in connection with the offense on trial 

and for no other purpose.

We review a trial court’s decision to admit or exclude evidence under an abuse 

of discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 

2019); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The general 

rule is that except for prior convictions admitted under rule 609, extraneous offense 
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evidence is not admissible to impeach a testifying defendant. See TEX. R. EVID. 

608(b); see also TEX. R. EVID. 609. The defendant can, however, “open the door” 

by leaving a false impression with the jury about a relevant act or character trait, and 

evidence of an extraneous act that tends to rebut the false impression may be 

admissible to impeach the defendant, but with a limiting instruction informing the 

jury it may use the extraneous offense evidence to gauge the defendant’s credibility. 

See Daggett v. State, 187 S.W.3d 444, 452–53 (Tex. Crim. App. 2005); Rivera v. 

State, 233 S.W.3d 403, 406 (Tex. App.—Waco 2007, pet. ref’d).

In this case, the trial court could have determined defense counsel’s question 

to Lowe (“So for [appellant] to pull a weapon on you, would be totally out of 

character; is that correct?”) and the answer it elicited from Lowe left a false 

impression with the jury that pulling a gun on any person, not just on Lowe, was 

totally out of appellant’s character. See Daggett, 187 S.W.3d at 453, n.24. 

Appellant’s defensive theory at trial was that he was not a violent person and was 

not the person who shot Lowe. The trial court reviewed the relevant portion of the 

record before determining the extraneous offense was admissible. The court did not 

explicitly rule appellant had opened the door to the offense, but it said that “because 

it’s wide open, I would say [the State] can talk about it,” and that the State could not 

present photos of the crime. The court also provided the jury with a limiting 

instruction in the charge. The trial court was in the best position to understand the 

tenor of defense counsel’s question, and it did not abuse its discretion in overruling 
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the objection and admitting the extraneous offense evidence.

Furthermore, were we to conclude the trial court erred in allowing the State to 

question appellant about the 2017 aggravated assault charge, appellant was not 

harmed. 

The erroneous admission of evidence generally constitutes non-constitutional 

error. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We 

disregard a non-constitutional error if it does not affect substantial rights. TEX. R.

APP. P. 44.2(b). In assessing the likelihood that the jury’s decision was adversely 

affected by the error, we must “consider everything in the record,” including the 

defendant’s guilt. Motilla, 78 S.W.3d at 355. 

Reviewing the record, we first note that defense counsel agreed the State could 

ask appellant “did he commit this other offense, that’s fine.” Counsel objected to 

the State presenting pictures and police reports from the case, and the court restricted 

the State from doing so. The State also spent little time questioning appellant about 

the extraneous offense. It asked appellant if he committed the 2017 offense

involving West, and, pursuant to the court’s ruling, did not offer proof of the offense 

through photographs or offense reports. The State did not mention the offense 

during closing arguments at guilt-innocence. In addition, appellant testified on 

direct that he had been to prison twice before for two additional offenses—burglary 

of a habitation and possession of a controlled substance with intent to deliver. He 

also admitted on cross-examination that he had pleaded guilty to a 2015 assault 
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family violence case involving Margery West. Moreover, the trial court provided a 

limiting instruction regarding extraneous offenses in the jury charge. 

Additionally, the State presented substantial evidence of guilt. The jury heard 

about the tumultuous relationship between appellant and Lowe, their breakup, and 

appellant’s threat “to have some girls beat [Lowe] up.” The jury saw the security 

camera video from a gas station—recorded minutes before the shooting—depicting 

appellant exiting a black SUV and confronting Lowe in her car while attempting to 

reach into the waistband of his pants. The jury saw the SUV speed after Lowe’s car 

as it exited the gas station parking lot. Lowe also testified about how she was driving 

fast but the SUV caught up with her car, and as it passed by, she saw the back 

window roll down. Appellant pointed a black gun at her; she heard a “pop”; she saw 

smoke come out of the gun. Lowe suffered a gunshot wound to her shoulder. 

After reviewing the record, we conclude that even if we assume the trial court 

erred, the alleged error did not influence the jury or had a slight effect. We overrule 

appellant’s first issue. 

2. Illegal Sentence

In his second issue, appellant argues the sentence of forty years was illegal 

because the trial court did not make any findings on the two enhancement 

paragraphs. Appellant’s argument is that because the trial court did not find the two 

enhancement paragraphs in the indictment to be true, the sentence it imposed was 

outside the range of punishment and, therefore, illegal. The State responds that 
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appellant’s argument is without merit. 

Aggravated assault with a deadly weapon is a second-degree felony, 

punishable by confinement for no more than twenty years or less than two, and a 

fine not to exceed $10,000. See TEX. PENAL CODE §§ 12.33, 22.02(b). Section 

12.42(d), however, provides that a defendant’s punishment is increased to 

confinement for twenty-five to ninety-nine years if he has previously been convicted 

of two felony offenses and the second offense occurred after the first conviction 

became final. Id. § 12.42(d).

The indictment in this case contains two enhancement paragraphs alleging 

prior felony convictions for possession of a controlled substance with intent to 

deliver and burglary of a habitation. Appellant elected to have the trial court assess 

punishment. At the punishment phase, the enhancement paragraphs were read aloud, 

and appellant entered his pleas of not true. The State then offered evidence the two 

convictions belonged to appellant through a certified judgment in the burglary case, 

a pen packet in the controlled substance case, and the testimony of a Dallas County

District Attorney’s Office investigator. 

The record reflects that both parties were aware appellant faced enhanced 

punishment because of the two prior convictions. During his closing arguments at 

punishment, defense counsel acknowledged his “understanding that this case 

normally carries a punishment range of 2 to 20, but because of [appellant’s] prior 

record it’s 25 to 99.” The State also noted that the punishment range in the case was 
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“25 to 99.” 

After listening to closing arguments, the trial court sentenced appellant as 

follows:

THE COURT: All right. Is there any legal reason why your client 

should not be sentenced at this point?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: All right. Then, having heard all the evidence and 

argument from both sides, I assess your punishment at 40 years 

confinement in the Institutional Division. Now, the sheriff will take you 

where you will be safely held until TDC can come and retrieve you. 

We’re adjourned.

There were no objections to the sentence imposed. 

A trial court is not required to make an oral pronouncement of its findings on 

enhancements when it alone assesses punishment. See Meineke v. State, 171 S.W.3d 

551, 557 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Seeker v. State, 186 

S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Dawkins v. State, 

No. 05-16-00101-CR, 2017 WL 3301784, at *2 (Tex. App.—Dallas Aug. 3, 2017, 

no pet.) (mem. op., not designated for publication); Bursey v. State, No. 05-15-

01050-CR, 2016 WL 4083185, at *2 (Tex. App.—Dallas Aug. 1, 2016, no pet.) 

(mem. op.). “Although it is preferred that trial courts read the enhancement 

paragraphs orally and find them to be true or not true on the record, a trial court does 

not err by not doing so.” Seeker, 186 S.W.3d at 38; see also Dawkins, 2017 WL 

3301784, at *2. “A trial court makes an implied finding of true to an enhancement 

allegation when the record establishes the truth of that allegation.” Torres v. State, 
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391 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (citing, in 

part, Almand v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976)); Dawkins, 2017 

WL 3301784, at *2. In addition, “appellate courts have concluded that a trial court 

implied a finding of true to an enhancement allegation if the sentence imposed was 

outside of the range for the underlying offense but was in the range for the offense 

as enhanced by a prior conviction to which the defendant has confessed.” Torres, 

391 S.W.3d at 183; Dawkins, 2017 WL 3301784, at *2.

In this case, the forty-year sentence imposed by the trial court is outside of the 

punishment range for a second-degree felony but within the range for a felony 

enhanced by two prior felony convictions. Under these circumstances, we conclude 

the trial court impliedly found the enhancements to be true, and that the sentence 

imposed was within the allowable punishment range and, thus, legal. See Torres, 

391 S.W.3d at 183; Dawkins, 2017 WL 3301784, at *2. We overrule appellant’s 

second issue. 

3. State’s Cross-Points

Turning to the State’s two cross-points, the first cross-point asserts that the 

judgment incorrectly lists “N/A” under appellant’s pleas to the two enhancement 

paragraphs and the trial court’s findings on those paragraphs. The record reflects 

that appellant entered pleas of “not true” to the paragraphs and, as discussed earlier, 

the trial court made implicit findings of true. We have implied such a finding in 

similar circumstances and modified the judgment accordingly. See, e.g., Butler v. 
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State, No. 05-17-00420-CR, 2018 WL 797409, at *2 (Tex. App.—Dallas Feb. 9, 

2018, no pet.) (mem. op., not designated for publication); Hernandez v. State, No. 

05-16-00599-CR, 2017 WL 2871428, at *9 (Tex. App.—July 5, 2017, pet. ref’d) 

(mem. op., not designated for publication). 

We have the power to modify an incorrect judgment to make the record speak 

the truth when we have the necessary information before it to do so. See TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); 

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify 

the judgment to reflect that appellant pleaded not true to the two enhancement 

paragraphs and that the trial court found the enhancement paragraphs to be true. 

The State’s second cross-point asks us to modify the judgment to include a 

finding of family violence under article 42.013 of the Texas Code of Criminal 

Procedure, which states:

In the trial of an offense under Title 5, Penal Code, if the court 

determines that the offense involved family violence, as defined by 

Section 71.004, Family Code, the court shall make an affirmative 

finding of that fact and enter the affirmative finding in the judgment of 

the case.

TEX. CODE CRIM. PROC. art. 42.013. 

The trial court is statutorily obligated to enter an affirmative finding of family 

violence if, during the guilt phase, it determines the offense involved family violence 

as defined by section 71.004. Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App.
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2006). The court has no discretion in the matter, nor does the prosecutor have the 

discretion to seek such a finding. See Coronado v. State, No. 05-16-01001-CR, 2017 

WL 6503092, at *6 (Tex. App.—Dallas Dec. 18, 2017, pet. ref’d) (mem. op., not 

designated for publication); Daraghmeh v. State, No. 05-13-01127-CR, 2014 WL 

7269924, at *5 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op., not designated 

for publication). Under section 71.004, “family violence” includes dating violence 

as defined in section 71.0021, which, in turn, includes “an act, other than a defensive 

measure to protect oneself, by an actor that (1) is committed against a victim . . .

with whom the actor has or has had a dating relationship . . . and (2) is intended to 

result in physical harm, bodily injury, assault,” among other things. TEX. FAM.CODE

§ 71.0021(a). “Dating relationship” means “a relationship between individuals who 

have or have had a continuing relationship of a romantic or intimate nature.” Id. § 

71.0021(b). 

Aggravated assault with a deadly weapon is an offense against the person 

under Title 5. TEX. PENAL CODE § 22.02(b). Furthermore, the indictment alleged 

that appellant and Lowe had a dating relationship, and undisputed evidence at trial 

showed appellant and Lowe dated on-and-off for approximately two years 

immediately prior to the shooting. Therefore, we sustain the State’s second crosspoint and modify the judgment to add an affirmative finding of family violence under

article 42.013 of the Code of Criminal Procedure in the “Special Findings” section 

of the judgment. See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 28; French, 830 
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S.W.2d at, 609; Asberry, 813 S.W.2d at 529–30; Herrera v. State, No. 05-19-00021-

CR, 2020 WL 4435309, at *16 (Tex. App.—Dallas Aug. 3, 2020, no pet.) (mem. 

op., not designated for publication); Coronado, 2017 WL 6503092, at *8. 

We affirm the trial court’s judgment as modified. 

200415f.u05

Do Not Publish 

TEX. R. APP. P. 47.2(b)

/Lana Myers//

LANA MYERS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CHRISTIAN PRICE, Appellant

No. 05-20-00415-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District 

Court No. 4, Dallas County, Texas

Trial Court Cause No. F18-76441-K.

Opinion delivered by Justice Myers. 

Justices Partida-Kipness and Carlyle 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

MODIFIED as follows:

Under the heading “1st Enhancement paragraph,” “N/A” is deleted and 

“Not True” is substituted;

Under the heading “Findings on 1st Enhancement Paragraph,” “N/A” 

is deleted and “True” is substituted;

Under the heading “2nd Enhancement paragraph,” “N/A” is deleted and 

“Not True” is substituted;

Under the heading “Findings on 2nd Enhancement Paragraph,” “N/A” 

is deleted and “True” is substituted; and 

In the “Special Findings” section on page 2, the following language is

added: “The Court enters an affirmative finding that Defendant’s 

offense involved family violence, as defined by Section 71.004, Family 

Code.”

As REFORMED, the judgment is AFFIRMED. The trial court is directed to 

prepare a corrected judgment that reflects these modifications. 
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Judgment entered this 14th day of January, 2022.