## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 0008 4- CR

___________________________

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR20

- 0035

Be fore Birdwell, Wallach, and Walker, JJ. Opinion by Justice Birdwell 

### M ARK 

### M ORGAN 

### U PCHURCH 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 OPINION Appellant Mark Morgan Upchurch a ppeals his con viction for assault of a family member with a previous conviction and sentence of twenty years in prison and

a $10, 000 fine . We affir m. I. Ba ckg round
A. The Aggravated Ass ault ( by Fire ) Appellant met and beg a n da t ing the complainant, Jane , 1 in 2013

. In 2014, Jane was hospitalized after being set on fire. She told paramedics that her nei g hbor poured gasoline on her a n d set her on fire , b ut at the emergency room , she reporte d that

“ Mark Churchill [sic] did this to me. ” App ellant subsequently ple ade d gu ilty to
aggra vated assault causing serious bodily injury.
B. The 2018 Assa ul t Appellant thereafter res umed his relationshi p with Jane , and t h ey mar ried i n 2018

. Later that year , Appellant drove to the p olice d epartment after an a lterc at ion
with Jane

. He ultima tely pleaded guilty in 20 19 to assault

– family violence fo r striking Jane ’s thro at with his ha nd in that altercation

. C. The Charge d Off e n se On October 6, 2019, while residing in a home with App e llant ’ s grandmothe r , a fight b etwee n Jane and A ppellan t escalated to Appellan t hitt ing Jane in t he head with
his hand

. Appellant reporte d hi m sel f to the local police, and Springtown Police

1 We use a pseudonym to protect the co mplain ant ’ s privacy

.3 O fficer K athryn Wacasey questioned him, detained him , and then drove to the house
and interviewed a n d ph otog raphed Jane

. Officer Wacasey released Appellant that day
be caus e Jane equ iv o cated on whether or not she wante d to press charge s . However, Appellant w as late r indicted and tri ed for assault

– f a mily violence wi th a pr e vious
conviction.
At his trial

— outside the presence of the jury

— Appellant objected to th e evidence of his prior offenses. H e argued that “ the pre judicial effect ” of this evid ence

“ w o uld far outweig h an y relevan ce. ” The State contended that it was allo w ed to “ get into extraneou s acts that show the nature of the relationship between the victim and ” Appell a nt and that “ the victim ’ s credibi lity is going to be a huge issue in this case . ”
T h e trial court a llowed the State to introduce this evidence, and Jane testifie d t o the jury that on June 1, 2014, she was sitting in Appellant ’ s car , which was park e d behind his house, and he came out and started pouring gasoline all over the c a r a nd her

. He
then walked a way, came back with a propane torch, lit Jane and the ca r on fir e , and
shut the car door with Jane inside

. Jane fur ther testified that she climbed out of the car through a windo w an d s t arted ro lling ar ound , a nd Appellant “ was just s tanding
the r e looking at ” her. She yelled for help , and h e got a hose and doused her with

water. She manage d to walk into the house and make it to the bathro o m . She recalled
feel ing her skin fa l l ing off h er l e gs a n d feeling the fire up in her ch est, even a fter it had
been ex t ingu ished. She tried to do n a sundress, but it m elted right off of her legs. She testified that Appellan t ne ver called 911 or offered to tak e her t o a hospital; her4 nei ghbor took her inst ead

. Photograph s of Jane in the hospital were ad m itt e d i n evidence, alo ng with thousands of pages of her medical records. She also testified
ab out oth er times that App ell a nt had assaulted her, includin g t he charged offen se. The o nly other witness at the trial on the merits was Officer Wacasey. A video
of her in t eraction with Ap pell ant on the date of the charged offense was admitted in
evi den ce and played fo r the jury. Appellant had admitted to Officer Wacasey that he
had hit his wife but also said that she had been “pr ov o king ” and “ threaten i ng ” him.
After one ho ur of deliberations, the jury convic ted Appellant. Appellant tes tified in his own defense as the only witness at the trial on p unishme nt. The tr ial c ou r t

s entenced him to twent y y e ars in prison and a $10,000 fine, the maximum p unishment
for this offens e. See Te x. Penal Cod e Ann. §§ 12.33, .4 2(a). Appellant now brings this appeal

. II. Discu ssion
In two issues , Appellant argues tha t the t rial cou rt erred when it admitted

extraneous

- offense evidence in th e trial on the merits rel ated to a non

- jurisdictional

e nh ancement alleged in the indictment and that this erron eou s admission o f evidence
affected Appellant’s substantial rights. 2 We will a nalyze Appellant ’ s argumen ts as one issue

.

2 As stated pr ev i ously, Appellant also objected at trial to th e admission of his conviction for the 2018 assaul t
. How ever, on appeal , Appellant does n ot comp la in about t he admission of that evidence

.5 A. Standa rd of Review
If the trial court ’ s evidentiary ruling is correct under an y ap p lic able the ory of law, then it will not be disturb ed. Johnson v. State , 490 S.W.3d 895, 908 (Tex. C rim. Ap p. 2016)

. In r eviewin g a trial court ’ s determination of the admissibility of

extraneous

- offense ev idence, we recognize the trial court ’ s superi or pos i tio n to gau ge the impact of the evidence and, accordingly, we will reverse “rarely and only after a clear abuse of discr etion.” Lumsden v. State , 564 S.W.3d 858, 877 (Tex. App.

— Fo rt Worth 2018, pet. ref ’d). As long as the trial court ’ s ruling is wit hi n the “zone of

re asonable disagreement ,” there is no abuse of disc retion, and the tria l court ’ s ruling will be upheld. De La Paz v. St ate , 279 S.W.3d 336, 343

– 44 (Tex. Crim. App. 2009) (quoting Montgomery v. State , 810 S.W

. 2d 372, 391 (Tex. Crim. App. 19 91 ) (op. on
reh’ g) ). “A trial court judg e is given considerable lati tude wi th regard to evidentiary rulings.” Fowler v. State , 544 S.W.3d 844, 848 (Tex. Crim. App. 2018)

. B. Preservation of Error
The State argues as an ini t ial matter that Appellant has fai le d to preserve h i s complaint for our review. To pres erve a complaint for our review, a party must have presented to the trial court a timely request, objecti on, or motion sufficiently stating the specific gro u nds , if not apparent from the context, for the d es ired ruling. T ex. R. App. P. 33.1(a)(1); Montelo n go v. S tate , 623 S.W .3d 819, 822 (Tex. Crim. App. 2021)

. Further, the part y must obtain an express or imp licit adverse trial

- court ruling or object to the t r ial court’s refusal to rule. Tex. R. App. P. 3 3.1( a)(2); Dixon v . State , 5956 S.W.3d 216, 223 (Tex. Crim. A pp. 2020)

. Before o pe ning statements and outside the jur y’ s pre sen c e, t he State pro ffer ed
the ex traneous

- offense evidence to the trial court, and A p pel lant stated his objections.
The trial court sa id that it was “ going to grant the St at e’ s req uest, ” effect ively ruling all the proffered evidence admissible. Thus, Appellan t did n ot need to renew his objection to preserve his clai m of error for appeal. Tex. R. Evid. 103(b). Howeve r, when certain exhi bi ts

— namely, Jane ’ s m edi ca l r ecords and photo graph s of the gas can, torch , and car involved in the aggravated assault by fire —w er e off ered in to

ev idence, Appellant stated, “ No objection. ” When the Sta te offered other exhi bits

— namely, pho to graphs of Jane in t he hos p ital

— in to ev id e nce , Appellant timely and specifically objecte d “ tha t th e prejudicial [sic] outweighs the relevance of these

e xhibits .” The tria l court admitted all the offered exhibits in to e vide nce. Whether a later statement of “no objection” to th e intro duction o f evidence

t ha t was subject to an earlier objection forfeit s th e error flowing from the
introduction of that evidenc e is “context

- dependent.” Thomas v. State , 408 S .W.3d 877,
885

– 86 (Tex. Crim. App. 2013). The Court of Criminal Appeals ha s held:
If

t he rec ord as a whole plainl y demonstrates that the defendant did not inten d , n or did the trial court construe, his “no obj ectio n” statement to const itute an abandonment o f a c laim of error that he had earlier preserved for appeal, then the appe ll ate cour t should not regard the claim a s “waived,” but should resolve it on the meri t s. On the other hand, if from the record as a w hole the appellate court simply cannot tell whet her a n abandonment was intended or understood, then, consistent with prior c ase law, i t shou ld regard the “no obj ec tion” statement to be a waiver of the earlier

- pre served error. Under the latter circum stances , the7 affirmative “no obje ction” statement will, by i tself, serve as an unequivocal indication that a waiver was both i nte nd ed and u nd erstoo d. Id. Applying this te st to the instant case, we simply cannot tell fro m the record as a
whole whether Appel lant in tende d or the trial c ourt understood his “ [n] o o bject ion ”

statement s to constitute an abandonment of his earlier objection

. At the h ea ring

o utside the presence of t he jury , Appellant ’ s counsel certainly sounde d li ke he had no intention of waiving th is clai m of error: [Regarding evidence of the aggravate d assault by fire ], I would ask most strenuously

-- par don me. I would str en uously object to that coming i n. Plus, the fact that as soon as they hear he se t her on fire, poured gas, set her on fire, th en the trial is over. T hey ’re n ot going to hear an other word of testimony regarding the case in chief that we’re here on. All the y’ re going to hear is: He set he r on fire. And I believe that under the rules tha t the

-- the relevance of that

-- the prejudic ia l val ue is

-- is not nearly w orth its relevance in th is case.

. . . . So, I don ’t believe that

-- that bring ing in the priors w ou ld be relevant. And, certainly , the prejudicial effect would be

-- would far
o utw eigh any relevance. So, on those grounds, I woul d o bject to bring [ing] it in.
But the tri al court sounded like it expected Appell a nt ’ s co unsel to o bject again
l at er

— when the evid en ce was offe red i n front of the jury

— and counsel signaled his

asse nt: THE COURT: Well, let me ask: As far as the photo s, I mean, I th ink th ose would be a “ time of. ” Y ou know, whenever those get offered, they get offered; and Defense Counsel can ob ject to th ose; and th e C ou rt would make a ruling at that time.8 . . . . THE CO U RT: The Court [] is going to grant the State ’ s reque st; and, [ Def ense Cou nsel ] , if you

-- you know, o bviously, if you need to make whate ver objection you need to make when that test imony is going on, I

-- [D EFENSE COUNSEL ] : At the time, I ’ m going to make t h e -- I’ ll renew the objection and, then, you know, get it on the record for appellate purposes. TH E COURT: And in the event that, you know , I

-- from wha t y’ all are telling me this may b e an every

- qu estio n objection; and, so, if that be the case, just to s ave you having to stand up and continuing to interr upt in front of the j ury

-- [D EFENSE COUNSEL ] : I’ ll ask for a running objection. THE COUR T: And the Co urt would be inclined to gr ant th at
. Further m uddy ing the waters of this record is co u nse l’ s objection to the photographs of Jane in the hospital for her b urns, when h e did not ob ject to her
medical records. This, too, is ambiguous; we could see it as an ind ic ation that Appel lant ’ s counse l did not int end to w aiv e his objection to the other exhibits (especia lly the medical records, as it would be illo gic al to obje ct to p hotographs of the hospitalized Jane but not to medical records that descri be what the ph ot ographs depict), b ut we could al so glean from thi s co urse of action that counsel saw the need

to re new his object ion to th e photographs whe n the S tate offered them, i ndicating
that

— by his unqualified s tatements of “[n] o objectio n” to the othe r exhibits —he did
intend to abandon his earlie r objection, at l e ast as to that evidence. Under these
circumstance s, counsel ’s affirmativ e “no objection” stateme nt s serve d pe r se as “ an9 unequivocal indication that a waiver was both i ntended an d understood. ” Thomas , 408
S.W .3d at 885

– 86

. However, we thi nk that Appel lant s u ffi ciently pres erved his objection to Jane ’s testimony and the photog raphs of he r in Pa rkland Hospital

. C. Analysi s A trial court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or mor e of the following: unfair prejudice, confusing the issues, misl eading the jur y, undue delay, or nee dlessly presenting cumulati ve evid ence . Tex. R. Evid. 403

. In a nalyzing a Rule 403 objection, 3 the trial court must engage in a balancing process. Perez v. St ate , 562 S.W.3d 676, 689 (Tex. App.

— Fort Worth 2018, pet. ref ’ d)

. In conducting a R ule 403 balanci ng test , a court must consi der (1) the inherent probative force of the proffered item of evid ence along with (2) the proponent’s need for that evidence and ba lance those factors against (3) any tendency of the evidence t o suggest decision on an improper ba sis, (4 ) any tendency
of th e evide nce to confuse or distract the jury from the main issues, ( 5) any tendency that a jury that has not been equipped to evalu at e the proba tive force of the evidence would give it undue wei g ht, and (6) the likelihood that pres entatio n of the evidence

3 It is apparent from the context of the re cord t hat thi s was the grou nd for Ap pellan t’ s o bjection. See Tex. R. Evid. 103 (a)(1) (B ), 403 ; Tex . R. App. P. 33.1(a)(1) (A) ; Bra dsh aw v. State , 46 6 S.W.3d 875, 882 (Te x. App.

— Texarkan a 2015, pet. ref’d) ( appellant preserved his objection under prejudice pr on g of Rule 4 03 where he objec t ed to evidence as “highly prejudicial” and “wholly for purposes of poisoning the minds of the jur y w ith extraneous allegatio ns ”); Als hei kh v. Altawil , N o. 02

- 12

- 00178

- CV, 2015 WL 392220, at *6 (mem. op.) ( Tex. App.

— Fort Worth J an. 29, 201 5, no pet. ) ( appe llant preserv ed his Rule 403 complaint by object ing that exhibit ’s relevance was outweighe d by its pr ejudicial effec t).10 wi ll cons ume an inordinate amount of time or merely repeat evidence already
admitted. Gigliobianco v. State , 210 S.W.3d 637, 641

– 42 ( Tex. Crim. App. 2006) ; Alami
v. State , 333 S.W.3d 881, 889 (T e x. App.

–– Fort Worth 2011, no pet.)

. The rul es of
evidence favor the ad mission of relevant evidence and carry a presumption that

r elevant evidence is more probative than prejudicial. Jones v. S ta te , 944 S.W .2d 642, 652 (Tex. Crim. App. 1996)

. It was Appell a nt’s burde n to overcome this presump tion by demonstrating that the pro bative value of the evidence was substantially outweighed
b y the danger of unfair prejudice or other factors. Wells v. Sta te , 55 8 S.W.3 d 661, 669 (Tex. App.

— Fort Worth 2017, pet. ref’d)

. We hold that he me t that bu r den her e. In l ooking at the first factor

— the inherent probative force of the evidence

— we must consid er how compellingly evidence of the extraneous offense serves t o make more o r less probable a fact of consequence. Lane v. Stat e , 933 S.W.2d 504, 520 (Tex. Crim. A p p. 199 6)

. Arguing that whe ther or not he burned Jane w as not a “fact
of consequence to t he litigation ,” s ee Gigliobianc o , 210 S.W.3d at 641 , Appellant focu se s

on the fa ct that the State used his conviction for the aggravated assault by fire a s a punishment enhancement and not a jur isdicti onal enhancement in this case

. Because the extraneous aggravated a ss ault conviction was not an essential element of the

un de rlying char ged off ense , Appellant contends , evidence that he burned Ja ne “ had absolutely no proba t ive value in this case .” Th e State counters that this evidence h ad
pro bative value:

• as to Appellant’s intent to commit the charged offense ;11 • to conte xt ualize the nature of Appellant’s abusive rela tionship with Jane , showi ng t he pa tterns of abuse and the power and control that he had over her, to help the jury understand why she never reported his conduct to the police, why she stayed with him and retur ne d to him after eac h incident, and why she neither called the police no r pr essed charges for
the assault for which Appellant w as on t rial ;

• to rebut the defensive theory of fabrication ; and

• to rebut Appellant’s contention that the victim was the initial ag gr essor and he was j ust defending himself.
We are ske ptic al of the State ’ s argument th at the aggravated assault by fire had
pro bative value as rebuttal evidence; the State introduced this evidence in its case

- in

chief and had told the trial c ourt up front, b efore any evidence was presen te d, t h at it was going to “ get int o” t his and other extran eous acts. However, we agree that the
evidenc e of Appellan t setting Jane on fire had some probative force on the issues of the nature of their relationship and Appella nt ’s intent to co mmi t the assault i n this

c ase . Thu s, the first factor weighs in favor of the State.
Most of the other factors, thou gh, wei gh against the State and in Appellant ’ s favor. As to the second factor, the State had little if any need for this ev idence. In

ev aluating this factor , we con sider (1 ) whether the proponent has other available
evidence to establish the fact o f conse quence tha t the evidence is relevant to show,12 (2) the strength of the other evidence, and (3) whether the fact of conseque nc e is
related to an is s ue that is in dispu te. Eraz o v. State , 144 S.W.3d 487, 495

– 96 (Tex. Crim. App. 2004) . Here, the State p roperly pled Appe llant’s aggravated assault conviction as a punishment enhancement and had no need to prove it up at the tria l

on t he merit s . To the ext ent the aggr avated assault by fire provided probative information consistent with the admissible purposes for w hich it was off ered , the State could have simply introduced a certified copy of Appellant’s conviction and the
indictment fr om th at case. Such wo uld hav e app ris ed the jury of the extraneous offense without revealing the horrific details of a crime t hat was disproportionately more heinous than the offense Appellant committed in this case.
The State likens this case to James v. S tate and quote s from our opi nion in James
where we stated, “The State also had a strong need for the extraneous

- offense
evide nce bec ause no one [ other than the appellant and the co mplainant] witnessed the charged offense[] , ” and the co mplainant ’s “credib il ity was at iss ue.” 62 3 S.W.3 d 533 , 5 48 (Tex. App.

— Fort Worth 2021, no pet.)

. But the State omits a critical fact from the quo ted sentence

— the co mplainant in James “ had no evident injurie s.” Id. Jane not only had evident injuries, but photographs of her i njuries

— and t he support ing
testi mon y from Jane and Officer Wacasey

— were admitted in evidence without objection. The State also got to show the jury a video of Appellant confessing to the charged assaul t, a dam ning piece of eviden ce that it di d n ot have in Ja mes and the other cases cited by the State in support of its argument that the e xtraneous

- offense13 evidence was necessary to i ts case
. 4 Taking all of this into account, we cannot agree with th e State ’ s argu ment a s to its “ nee d” to prove up the gr isly deta il s of the aggravated a ssault by fire and Jane ’s injuries . The second f actor weighs strongly in
favor of Appellant

. We are like wise un persuaded by the State ’ s argument the third factor

— the tendency of the e vidence to sugge st decision on an improper basis —“we ighed slightly
or, at most, moderately against admiss ion. ” Unfair prejudice may be create d by the tendency of the evidence to prove some adverse fact not properly in issue or to
unfa irly excite emot ions agai nst the def endant. Montgomery , 810 S.W.2d at 37 8. Here , again, the Sta te ’ s reliance on James is misplaced . The State argues that the facts of this

case “ are similar to, but l ess sev ere than, the facts of the James case ”:
Bo th c ases involved the comm is sion of a felony assault causing bodily injury b y striking a family member or a person with w hom the defendant had a dating relationship with the defendant’s hand. [ See Jame s , 623 S.W.3d at 539 .] But here, in contrast to the nu m erous se vere extraneous of fe nses offered in James , the State offered evide nc e of only three extraneous offenses, one of w hich was the jurisdictional enhancement and only one of which is subject to Appe llant’s compl aint on appeal. The tr ial cour t in James allowed the c omplainant to testi f y about James ’ s control

4 See Martin v. State , No. 03

- 20 -00 10 2- CR, 2022 WL 479544, at *11 ( Tex. App.

— Austin Feb. 17, 2022, no pet.) (mem. op., n ot designated for publica tion ) ; Camacho v. State , N o. 01

- 20

- 00282

- CR, 2021 WL 2832970, at *7 (Tex. App. —Hou st on [1s t D ist.] July 8, 2 021, no p et.) (mem . op., not desi gnated for publication) ; Olmedo v. State , No. 08

- 18

- 00114

- CR, 2019 WL 6271272 , at * 7 (Tex. App.

— El Paso Nov

. 25, 2019, pet. ref’d) (not designated for publication ) ; Emich v. State , No. 02

- 18

- 00059

- CR, 2019 WL 311153, at * 6 (Tex. Ap p.

— Fort Wo rth Jan. 24, 2019, pet. ref’d) (mem. op., not designated for publication ).14 of her in the rel at ionship , including his ty ing her up , their drug use , and that she ha d attempted to commit suicide

. Id. at 5 40. The trial cour t also allowe d the State to introdu ce evide nce of specific incident s in which James had forced the complainant to steal to pay fo r drugs ; injured her by bu stin g her lip and hitting her head, resulting in a hospital visit; sexually assaulted her with a broo m, resu lting in a hospital visit ; attempte d to break into her siste r’ s home; been arrested for assaulting her , resulting in
the i ss uance of an emergency pr otec tive ord er three days before the charged assault ; and sexually assaulted her again the same day h e commi tted t he offenses a lleged in the
indictment

. Id. We fail to see how the fact that the aggravated assault by fire was one

o f “o nly three extraneous offen ses ” 5 the State got to prove up at the trial on the merits weighs in the State ’ s favor here; if an ythi ng , then bei ng one of just three
extraneous bad acts made this evidence

— which the State appropriately recognize s is
“horrific” and “ inf la mm atory ”— stand ou t all the more powerfully to the j ury, in contrast to Appellant ’ s other two extraneous as sault s on Jane , which involved far less egregious facts.
Th e State correctly points out that the trial court included instructions in the j ury charge restrict ing the j ury ’s consideration of the extr ane ous

- offense ev i dence to

5 On direct e xa m ination, Jane testi f ied that she met Appellant at a bar. He sent her a drink, and she woke up in a hotel room the next morning wit h n o memory of wha t had ha ppened the previous night. She further testi f ied that, “ ye ars ” lat e r, Appellant “ finally ” admitted that he h ad put Xanax in her drink. Appellant di d not ob j ect to this evidence

. This was the first of the three extraneous assaults tha t the State int roduced in evidenc e.15 admissible pur poses

— and pre dicating an y s uch c onsider ation on the condi tion that the jury find and believe beyond a reasonable doubt that Appellant c ommit ted such

ex t ra neous offenses “if any were co mmitted ”— and that Appellant does not attempt to rebut the presumption that the jury followe d thi s inst ruction

. Cf. id. at 549. We

must presume that the jury understood and followed the c ourt ’ s charge, absent
evidence to the co ntrary
. See Crenshaw v. State , 378 S.W.3d 460, 467 (Tex. Crim. App. 2012)

. However, thi s presum ption only lesse ns the tendency of th e evide nce to suggest decision on an improper basis; it does no t make that tendency go aw ay entirely. We are hard

- pressed to conceive of any evidence with greater “ potential to impress the jury in s ome irrational bu t indeli ble way ” than what we are prese nted w ith
her e. See State v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. App. 2005)

. The jury heard a chilling mome nt

- by

- moment acc ou nt of the aggravated assau lt by fire from the victim herself, including her testimony of how Ap pellant failed to offer her any aid o r assis tance (other than dousing her with water) after setting her on fire, eff ect i vely
leav ing her for dead. Additionally , the jury saw images of Jan e’ s badly burned, bandaged, and b leeding bod y in the aftermat h of the fi re, and she testified that h er bur ns s til l cause her pain. Thus, this f act or also weighs in favor of Appellant

. T he nature of this extr an e ous

- offense eviden ce and the prominent part it played in the Sta te ’ s case

— relative to other evidence introduced by the State

— sim ilarly distinguis h Appe llant ’s case from James as to Gigliob ianco ’ s fourth factor

.

“ Confusion of the issues ” alludes to the likelihood that the e vi dence would confus e16 the jur y or distract the m from the c ase ’ s central issues. James , 623 S.W.3d at 550

. In Ja mes , we agree d wi th the State ’s contention that “ the extrane ous

- offense evidence did
not confuse or distract the jury from the main issues in thi s case but instead p resented the jury with a m ore complete picture of the cycle of violence between [ the appell ant ]
and [ the com plaina nt ] , helping the jury understand ” the co mplainant ’ s behavior

. Id.
The State makes the same contention here, but based on th e facts of this ca se, we hav e to disagre e . T he State claim s that th e evi d ence of Appellant ’s aggravated assau lt by fire helped the j ury und erstand Jane ’s “ decision not to call the police on the day of the offense, her indecision regarding whether to pres s cha rges, and her decision to

c onti nue visiting Appellant and tell him that she loved him until two weeks before the
trial ,” bu t it d oes not explain how

. It seems to us that a rational jury would have been all the more bewildered by Jane ’ s behavior follow in g Appel lant ’ s l ate st ass ault on her after learning that he had previou s ly set her on fire and shown callous indifference as
sh e burn ed

. How ever, we do see some similarities between this case and James . Like Appellant , “ James was arraigned o n the charges in the ju ry’ s pre sence; the trial court issued oral and written limiting instructions pre scribing how th e jury should use the

ex traneo us

- offe nse e vidence, if at all; and the jury charge and verdict forms made clear that the jury ’ s job was to determine whet he r James was gui lty or not gu ilty of the charged offenses. ” Id. With the consideration o f these additional facts, this factor

we ighs only sl ightl y in favor of Appellant.17 The fifth factorwei ghs in favor of the State. Rule 403 ’s fourth key ph rase, “misleadin g the j ury,” re fers to a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. Gigli obianco , 210 S.W.3d at 641

. Here , Jane ’ s testimony and the photographs of her injuries were not of scie ntific or
technical c haracter, such that the evid ence might have been given undue weight by an
untraine d jury. See id. Jane w as a lay witness, and none o f th e e xtraneous

- offense evidence was scientific or complex. See id. ; see also James , 623 S.W.3d at 550

. Finally, the sixt h factor l ooks to the time the proponent will need to develop the evidence, duri ng which the jury will be distracted from consid era tio n of th e indicted offense. See Mechler , 153 S.W.3d at 441

. Again , we note that the State sp en t far
more time developing ev id ence of the aggravated assau lt by fire and the aftermath, including the physic al and psychological injuries to Jane , than deve loping the ev idence
of the charged assault. Out o f what the State correctly calculates to be “approxima tely 100 pages of testimo ny ” i n the r eporter’s r ec ord, 25 pages comprise Jane ’s testimony

— and the a dmi ssion of the related photographs and medical record s— on d irect e xamination about the aggravated assault by fire

. Appellant ’ s cro ss- examinati o n of Jane abou t this one extraneous of fe ns e took up an additional 9 pages, compared to the few p ages he spent on cross - and re cross

- examination combined questioning he r ab out the charged offense. By contrast, th e State’s direct examinat ion of Jane on the
assault char ged in this case comprises o nly a few pages in the r ep ort er’s r ecord , and the introduction of the photographs of h er injuries from that assault comprise a few18 more. Of ficer Wacasey, the State’ s only other witness, was effectiv ely a sponsoring witness for her body

- camera video. Acco rd ingly, the record before us r eflects a prosecutorial em phasis on an extraneou s crime, the prejudicial effect of which was to

e ffecti vely re prosecute A ppellant for the extraneous crim e, not the crime made the basis of the prosecution and co nviction made t he basis of this appeal. This f actor weigh s in fav or of Appellant

. Cf. Perez , 562 S.W.3d at 691 (determin ing that this factor

we igh ed “ slight ly in favor of excluding ” extraneous

- offense testimony tha t comprise d 91 pages of the 600 pages, rou ghly fifteen pe rc ent, of testimony presented t o the jury by both sides in the guilt / innocence stage ); Russell v. St ate , 113 S.W.3d 530, 546 (Te x. App .— Fort Worth 2003, pet. ref ’ d) ( conclud ing factor weighed in favor of exclusion
of extraneous offense when evidence of ext ra neous offense amounted to thi rty percent of trial)

. In conclusion , the extraneous aggravated assault had some inherent p robative
for ce , but the State had no need to prese nt the jury with Jane ’ s graphic testimony and accompanying photogr aphs at the trial on the merits

. And, while t he d anger of

con fusing the issues and misl eading the jur y was l ow , t he danger of unfair prejudice to Appell ant was as high a s we c a n fathom , a nd the presentation of this evidence

consume d an inordinate amount of time at trial

. We a dd that, by effectively makin g the trial more about Appellan t setting Jane on fire than about the charged offense,
reasonab l e infe rence s m ay be drawn that the Stat e’s theory of admissibility

— i.e., to
demonstr ate the credibility of J ane ’s testimony and t he volatile nature of the19 relati onship between her and Appellant —w as merely pretextual and that the admission of the evidence during the gu ilt/inn ocence phase of the trial was in tended to try the accused for being a criminal generally and not for the indicted o ffense. See,
e.g. , Walls v. State , 548 S.W.2d 38, 41 (Tex. Crim. App. 1977). For these reasons, we
conclude that the trial court abuse d its d iscretion by admitting the extra neous -o ffense
evid en ce over Ap pellan t’s R ule 403 ob jection.
We further conclude tha t such error was harmless. Overruling an object ion to evidence wi ll not result in reversal when other such evidence was received w ithout

o bjection, either before or aft er th e complained

- of ruling. Leday v. State , 983 S.W .2d
713 , 718 (Tex. Crim. App. 19 98 ). Here, the photographs of J ane in Parkland H ospi tal merely dep ic t wha t the medical records describe. The medical records fro m Park l and
also contain st ate ments Jane made to medical person nel a cc usi n g A ppellant of
po uring ga s oline on h er and setting her on fire. 6
To the extent tha t Ja ne ’ s te st imony includ ed detail s about the extraneous offense that th e medical reco rds did not, we have fair assuranc e t hat this evi dence did

no t influence the jur y o r th at it “ had but a slight effect.” Ma ce do v. State , 629 S.W.3d

6 While the medical rec ords are voluminous

— over 3,500 pages in total

— once they were admitted, we pr es ume that the jur y saw everything co n tained therein

. See Air Control Eng ’ g, I nc. v. Hogan , 477 S.W.2d 941, 946 (Tex. A pp.

— Dallas 1972, n o writ) (“ The jury had all of the evidence bef o re i t and is pr e sumed to have considered same in arriving at its answ ers to the issue s. ”)

. The trial court als o instructed the j ury to “caref ul [ly] and impartial [ ly

] consider [] all the eviden ce in this case ,” and it is presumed that a jury follows a trial cour t’ s instruc t ions regardi ng the consideration of evidence

. Barron v. State , 630 S. W. 3d 392, 413 (Tex. App.

— Eastland 2021, pet. ref’d ).20 237, 240 (Tex. Crim . App. 2021 ) ( qu oting Gonzalez v. State , 544 S.W.3d 363, 373 (Tex. Crim. Ap p. 2018) ). Err or in t he admission of evidence in vi olation of R ule 403 is generally not consti tu t ional. Perez , 562 S.W.3d at 691

. Becaus e the erro r is not constitutional, we apply R ule 44

. 2(b). T ex. R. App. P. 44.2(b). That r ule requires us to disregar d an y noncon stitut ional e rror that does not affec t Ap pe llant’s subs tantial rights. Id. A substanti al right is affected when the e rror had a “s ubstanti al a nd injurious effect or influenc e in de termini ng the jury’s verdict

. ” Haley v. State , 173 S.W.3d 510, 5 18 ( Tex. Cri m. App . 2005) ; see King v. State , 953 S.W .2 d 266, 271 ( Tex. Crim. App. 199 7) (citing K otteakos v. United States, 328 U.S. 750, 7 76 , 66 S. Ct. 1239, 1253 (1946)). Conversely, a n err or does not affect a substantial right if the appellate
court ha s a fair ass urance from a n examination of the rec o rd as a whole tha t the error
did no t influence the jury or that it had but a sl ight effect

. Macedo , 629 S.W.3d at 240

. In deciding that questi on, we consider (1) the character of the alleged error and how i t
mi ght be c onside red in connection with other ev i den ce , (2) the na ture of the evidence supporting the verdict , (3) the existence and degree o f additi onal evidence indicating guilt , and (4) wh ether t he State emphasized the complained

- of error. Id. ; Motill a v. State , 7 8 S.W. 3d 352, 355

– 56 (Tex. Cri m. App. 20 02). W e may also consider the jury
instruction s, the State’s theory and any defe nsive th eo ries, closi ng a rguments, and even voir dire, i f ap plicabl e. Haley , 173 S.W.3d at 518

– 19; Motilla , 78 S.W.3d at 355

– 5 6.
Wh ile t he cha racter of t his evidence was such t h at it likely domi nated the21 j ur ors’ minds thro ugh their deliberations, and the S tate emp hasized the e vide nce in its closing argument , we can not ignore the “ overwhelming evidence of guil t” that was properly admitted w ithout object ion. Mo tilla , 78 S. W.3d 356. Jane testified that in the instant case, Appellant backhanded her in h er face, causing h er to f all backward and
hit the concre te in the ga rage. She remembered her ear ringing, her face sw ell i ng up

“ really bad[ly], ” and c rying a s Appe llan t’s grandmother put ic e on her face. Officer Wacasey testifie d that Jane ’ s stor y about what had happened ne ver ch an ged. The jury

saw a video of Appellant con fessing to hitting his wife in the face and stating that she
had “a b ig old kno t o n the s i de of her head. ” Evincing a consciousness of h is gu ilt, h e also t old Off icer Wacas ey that this assault would be a fe lony because of h is p rior
convict ion for assault in g Jane

. See Te x. Penal Code A nn. § 22.01(b)( 2)(A). At trial, Appellant stipu lated to this p rior conv iction, and cour t r e cords proving it up were ad mitted in evidence , as were photographs of Jane ’ s injuri es. This uncontradic ted
evi d ence prove d all t he eleme nts of the charged offense. Finally, in its ju r y charge , the trial court ga ve the jury an in struc tion l imiting its consideration of any ext r an eous

- offense evi d enc e, and we presume that the jury
followed thi s instruction. P erez , 562 S.W.3d at 694

. We conclu de that, in the context of the entire case aga i nst Appellant , any p reserved error in adm itti ng evidence of the aggravated assault by fire did not have a substantial or in jurious effect on the j ury’s22 verd ict and did not affect Appe l lan t’s substanti al rights

. 7 See King , 953 S.W.2d at 271

– 73

. Thus, we must disre g ard any such error. See Te x. R. A pp. P. 44.2(b). We over rule
b oth of Appellant ’s issu es. III. Conc lusion
H aving ov errul ed both of Appellant ’s i ssue s , we affirm the trial cou rt’ s ju dg me nt
. /s/ Wade Bird well
Wa de Birdwel l Justice
Publish
Del i vered : November 23, 2022

7 A ppellant does not compla in that the extraneou s- offe nse evidence of th e aggravated assau lt by fire would hav e been inadmissible at the punis h ment sta ge of his t rial. This is appr opriate, as the S ta te would have ha d to prove up the pr ior aggravated
assa ult to support the punishm ent enhancement alleged in the in dictment. See T ex. Penal Code Ann

. § 12.42(a) (explai n ing proof necessary to support punishment for a second

- degree felony on the t rial of a third

- degree felony). Further, once a defendant has been convicted, punishment evi dence may be offered “ as to an y m atter the court deems relevant to sentencing, includi n g but not li mited to the prior criminal record of the defendant , [as well as] any oth e r evidence of an extraneous crime or b ad act that is show n beyond a reasonable doub t

. . . to have been committed by the defendant .” Tex. Code Crim P roc. An n . art
. 37.07 § 3 (a)(1) (emphasis added)

. In sum , based on the rationale of our harm a nalysis , and b ec ause the evidence of th e extraneous aggrav at e d assault would have been admissible at the trial on punish men t, we con clu d e that th e ult i mate out come of App e llant ’ s trial

— his conviction and sentence

— would have been the same had the State no t introdu ce d the o bjected

- to evidence unt il the trial on pun ishment.