Affirmed as Modified; Opinion Filed July 26, 2016.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00822-CR

ANTWON CARTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court

Collin County, Texas

Trial Court Cause No. 296-81511-2013

MEMORANDUM OPINION

Before Justices Myers, Stoddart, and Whitehill

Opinion by Justice Myers

A jury convicted appellant Antwon Carter of murder and assessed punishment at life 

imprisonment and a $10,000 fine. In a single point of error, appellant contends the trial court 

erred by allowing the State to introduce evidence that was more prejudicial than probative. As 

modified, we affirm the trial court’s judgment. 

DISCUSSION

1. The DeSoto Cartridge Casing

Appellant’s sole point of error is phrased as follows: “The trial court erred in allowing 

the State [to] introduce evidence that was more prejudicial than probative which was offered 

under Rule 404.” 

The indictment alleged that on or about January 18, 2013, appellant “did then and there 
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intentionally and knowingly cause the death of an individual, namely, Waddell Roberts, by 

shooting Waddell Roberts with a deadly weapon, namely: a firearm.” As charged in this case, a 

person commits murder if he “intentionally or knowingly causes the death of an individual[.]” 

TEX. PENAL CODE ANN. § 19.02(b)(1). The offense is a first-degree felony. Id. § 19.02(c). 

The evidence at trial showed that Waddell Roberts, also known as “Smooth,” had been 

shot to death at the Red Rock Bar and Grill in Dallas, Texas, on January 8, 2013. He suffered 

gunshot wounds to the head, arm, chest, and abdomen. As part of the State’s case in chief, 

Detective Kevin Moss of the Dallas Police Department Crime Scene Unit testified that police 

collected seven fired cartridge casings and one bullet fragment from the crime scene. He also 

testified that the gunshot wounds “appear[ed] to be consistent in size” with the caliber of bullet 

found at the crime scene. Ballistics testing showed that all of the casings were fired from the 

same gun. 

During the detective’s testimony, defense counsel objected out of the jury’s presence as 

follows:

So we are getting into the ballistics now with the officer. They are going to 

attempt to tie my client to those bullets with a shooting in DeSoto where he was a 

suspect. The reports that they have given me from DeSoto said there is nothing 

that ties my client to that shooting. Nothing. That is in the report. So before they 

even try to do that, I want to have a hearing outside of the presence to make sure 

that you are on board with what our position is, that they can’t do it; and, 

therefore, that stuff isn’t admissible.

The trial court ruled the State could not go into the DeSoto shooting “at this time.” Later, after 

the defense cross-examined the lead investigator in the case, Dallas Police Detective Tim 

Stewart, regarding other potential suspects the police had ruled out, the State asked outside the 

jury’s presence for the court to revisit its ruling on the DeSoto evidence because appellant had 

raised identity as an issue. The State argued it was not offering any evidence of the DeSoto 

offense, which was a deadly conduct case, but rather that a cartridge casing had been found at the 
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home that matched the casings found at the murder scene. Appellant objected that the evidence 

was not relevant and was more prejudicial than probative because he was not tied to the DeSoto 

offense. The trial court ruled it would allow testimony regarding the cartridge casing having 

been found “at the scene in DeSoto,” but the witnesses could not testify as to “how it got there.” 

Britteny Cain, appellant’s ex-girlfriend, testified that in September of 2011 she was living 

at a house located at 235 Avalon, in DeSoto, with her mother, sister, and two daughters. She 

testified that appellant knew she was living at 235 Avalon and had been to that address. She told 

the jury that at some point in December of 2012, a bullet casing was found at the house. A 

DeSoto police officer, Andrew Wood, testified that on December 17, 2012, he collected a 

cartridge casing from a DeSoto address, 235 Avalon, that he found in the driveway of the house, 

next to the garage, approximately ten feet from the front door. A forensic scientist in the 

firearms and toolmarks section of the Texas Department of Public Safety Crime Laboratory, 

James Jeffries, testified that he compared the DeSoto cartridge casing to the casings collected 

from the crime scene and that all of the casings were fired from the same firearm.

Appellant’s argument is that the evidence of the cartridge casing found in Britteny Cain’s 

driveway should not have been admitted because it was more prejudicial than probative. We 

review the trial court’s decision to admit or exclude evidence under an abuse of discretion 

standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does 

not abuse its discretion unless its decision to admit or exclude the evidence lies outside the zone 

of reasonable disagreement. See Martinez, 327 S.W.3d at 736; De La Paz v. State, 279 S.W.3d 

336, 343–44 (Tex. Crim. App. 2009). We will uphold the trial court’s evidentiary ruling if it was 

correct on any theory of law applicable to the case. See De La Paz, 279 S.W.3d at 344.

Rule 403 provides that a trial “court may exclude relevant evidence if its probative value 

is substantially outweighed by a danger of one or more of the following: unfair prejudice, 
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confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative 

evidence.” TEX. R. EVID. 403. “Under Rule 403, it is presumed that the probative value of 

relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of 

evidence only when there is a clear disparity between the degree of prejudice of the offered 

evidence and its probative value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.

2009) (footnotes and internal quotation marks omitted). Accordingly, “the plain language of 

Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence 

is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to 

be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation 

omitted).

In considering a rule 403 challenge, courts balance (1) the inherent probative force of the 

evidence—that is, how strongly it serves to make more or less probable the existence of a fact of 

consequence to the litigation, with (2) the proponent’s need for that evidence against (3) any 

tendency of the evidence to suggest a decision on an improper basis, commonly, an emotional 

one, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any 

tendency of the evidence to be given undue weight by a jury that has not been equipped to 

evaluate the probative force of the evidence, and (6) the likelihood that presentation of the 

evidence will consume 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); see also Hernandez v. 

State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). We should reverse the trial court’s 

balancing determination “rarely and only after a clear abuse of discretion.” Montgomery v. State, 

810 S.W.2d 372, 392 (Tex. Crim. App. 1990).

Applying the rule 403 factors, the first factor favors admissibility because the evidence 

showed appellant’s connection to the murder weapon and helped prove the identity of the 
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perpetrator of the offense. The State had a need for such evidence because it served to rebut the 

defensive theory that certain alternative suspects who may have been involved in the offense 

were overlooked by the police. As for the third factor, the prejudicial impact was minimal and 

the evidence was not so inherently inflammatory that it should have influenced the jury in some 

irrational but indelible way. See Quesada v. State, No. 04–04–00438–CR, 2006 WL 1993762, at 

*4 (Tex. App.—San Antonio July 19, 2006, pet. ref’d) (mem. op., not designated for publication) 

(evidence of shell casings found in defendant’s bedroom that matched murder weapon did not 

amount to evidence that would impress the jury in some irrational but indelible way because 

spent shell casings were merely evidence of a discharged firearm); see also Sargeon v. State, No. 

01–11–00146–CR, 2012 WL 761210, at *2 (Tex. App.—Houston [1st Dist.] Mar. 8, 2012, no 

pet.) (mem. op., not designated for publication). The fourth and sixth factors concern the 

tendency of the evidence to confuse or distract the jury from the main issues and the amount of 

time consumed by the presentation of the evidence. See Gigliobianco, 210 S.W.3d at 641. 

These factors likewise favor admissibility because the evidence in question did not take a 

significant amount of time at trial to develop and the presentation of the evidence was limited to 

avoid revealing the existence of any extraneous criminal offense. Cain did not testify that a gun 

had been fired at her or the residence; her testimony was that a shell casing was found in the 

driveway of her home. Likewise, Officer Wood testified that he collected a shell casing he found 

on the driveway; there was no testimony that a criminal offense had occurred. The fifth factor 

concerns a tendency of an item of evidence to be given undue weight by a jury that has not been 

properly equipped to evaluate the probative force of the evidence. Id. Evidence of the cartridge 

casing that was found in Cain’s driveway was not prone to such a tendency because it concerned 

matters that were easily understandable by a jury. Moreover, the trial court included a limiting 
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instruction in the jury charge.1 Thus, the fifth factor also weighs in favor of admission. For all 

of these reasons, we conclude that the probative value of the DeSoto cartridge casing evidence 

was not substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; 

Gigliobianco, 210 S.W.3d at 641–42. We overrule appellant’s issue.

2. The State’s Cross-Point

In a cross-point, the State argues that the judgment improperly omits a deadly weapon 

finding. According to the State, the judgment should be modified to include a deadly weapon 

finding because the indictment alleged the use of a deadly weapon during the commission of the 

offense and the jury’s guilty verdict was an implicit deadly weapon finding.

When the jury makes an affirmative deadly weapon finding, the trial court has a 

mandatory duty to enter a deadly weapon finding in the written judgment. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 3g(a)(2); Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). 

A failure by the trial court to comply with this mandatory duty is a clerical error that can be 

corrected by a nunc pro tunc order of the trial court. See, e.g., Poe, 751 S.W.2d at 876; Asberry 

v. State, 813 S.W.2d 526, 530 (Tex. App.––Dallas 1991, pet. ref’d). “[I]f the indictment by 

allegation specifically places the issue before the trier of fact (i.e. “. . . by stabbing him with a 

knife, a deadly weapon . . . .”), then an affirmative finding is de facto made when the defendant 

is found guilty ‘as charged in the indictment.’” Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. 

App. 1985); accord Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009); Poe, 751 

S.W.2d at 875. 

As described above, the indictment in this case alleged that appellant intentionally and 

 

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The instruction was as follows:

You are instructed that if there is any testimony before you in this case regarding the defendant’s having committed 

offenses 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 offense or 

offenses, if any were committed, and even then you may only consider the same in determining motive, opportunity, intent, 

preparation, plan, knowledge, identity, to rebut a defensive theory, and for no other purpose. 
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knowingly caused the death of an individual by shooting him with a deadly weapon––a firearm. 

Additionally, the record shows that the jury found appellant guilty of murder “as charged in the 

indictment.” Based on this record, we conclude the jury made an affirmative finding of a deadly 

weapon. See Crumpton, 301 S.W.3d at 664; Poe, 751 S.W.2d at 875; Polk, 693 S.W.2d at 394;

Brightmon v. State, Nos. 05–13–01371–CR, 05–13–01372–CR, 05–13–01373–CR, and 05–13–

01374–CR, 2015 WL 3653235, at *5 (Tex. App.––Dallas June 12, 2015, no pet.) (mem. op., not 

designated for publication); Truong v. State, No. 05–13–00939–CR, 2014 WL 5449747, at *13 

(Tex. App.––Dallas Oct. 28, 2014, no pet.) (mem. op., not designated for publication). 

“Appellate courts have the power to reform whatever the trial court could have corrected 

by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the 

record.” Asberry, 813 S.W.2d at 529 (modifying trial court’s judgment to include jury’s 

affirmative finding of use of a deadly weapon); see also TEX. R. APP. P. 43.2(b); Bigley v. State, 

865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Because the necessary information appears in 

the record before us, we modify the judgment of conviction to include a deadly weapon finding. 

See Asberry, 813 S.W.2d at 529–30. Accordingly, we (1) delete the portion of the trial court’s 

judgment that states “N/A” under the heading “Findings on Deadly Weapon,” and (2) add the 

words “YES, A FIREARM” under that heading. See id.

As modified, we affirm the trial court’s judgment.

/Lana Myers/

LANA MYERS

JUSTICE

Do Not Publish

TEX. R. APP. P. 47

140822F.U05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ANTWON CARTER, Appellant

No. 05-14-00822-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 296-81511-2013.

Opinion delivered by Justice Myers. Justices 

Stoddart and Whitehill participating.

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

as follows:

“FINDINGS ON DEADLY WEAPON: N/A” should be changed to “FINDINGS 

ON DEADLY WEAPON: YES, A FIREARM.” 

As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new 

judgment that reflects these modifications.

Judgment entered this 26th day of July, 2016.