COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DAMACIO SANDOVAL, JR.

 Appellant, 

v. 

THE STATE OF TEXAS,

 Appellee. 

§

§ 

§ 

§ 

§ 

No. 08-23-00232-CR

Appeal from the 

198th Judicial District Court

of Kerr County, Texas 

(TC# B21-473) 

MEMORANDUM OPINION1

A jury found Appellant Damacio Sandoval, Jr. guilty of aggravated assault with a deadly 

weapon and assessed punishment at ten years’ confinement. In a single issue on appeal, Appellant 

asserts the trial court erred by admitting testimony about prior extraneous offenses involving 

domestic violence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because Appellant does not raise an issue challenging the sufficiency of the evidence to 

support his conviction, we only briefly discuss the background of the evening on which Appellant 

committed the offense of aggravated assault with a deadly weapon against Braxton Mathson. See

1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket 

equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our 

own. See Tex. R. App. P. 41.3. 
2

Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as 

practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

On the same evening as the assault, Appellant also shot and killed Patrick Louvier.2 Because the 

background of that offense is relevant to Appellant’s issue in this appeal, we also briefly discuss 

the events that led to the shooting.

At trial, several witnesses testified about the evening on which Appellant shot Louvier and 

threatened Mathson with a gun. A large group of family and friends was gathered at the home of 

Appellant’s mother-in-law, Cynthia Vlasek, to celebrate a family member’s life the day before his

funeral. A guest, Courtney Garrison, testified that she was sitting outside on the porch with 

Appellant, Appellant’s common-law wife (Cara Westrum), Louvier, and Louvier’s girlfriend

(Amanda).

3 According to Garrison, Westrum had a black eye and busted blood vessel, but she did 

not talk to Westrum about the injury. Garrison testified that Amanda said to Westrum, “Hey, do 

you remember that weekend that you came down here and we got fucked up and we partied at my 

house?” Garrison said Appellant then “stood up from the table and his complete demeanor 

changed. . . . [A]nd as soon as that was said, he clearly got very angry.” Garrison stated Amanda 

and Louvier started to leave after being asked to do so by Vlasek, but Appellant “kept taunting 

them, saying inappropriate things, trying to get a rise out of him” as Louvier was walking toward 

his car. 

Two other guests, Johnny Tisdale and Mathson, testified that they heard yelling and 

arguing just before the shooting. Tisdale said he heard Appellant tell Louvier to leave in a 

2 The murder and aggravated assault charges were tried together before the same jury. Appellant was convicted of the 

murder of Louvier and appealed that conviction in a separate companion appeal labeled cause number 08-23-000231-

CR.

3 Amanda, whose full name is not identified in the record, did not testify at trial.
3

derogatory manner, then he saw Louvier swing around the table toward Appellant, and Appellant 

pulled out a gun and started to shoot Louvier. By the time law enforcement arrived, Louvier was 

deceased on the ground with multiple gunshot wounds.4

Mathson testified that on the day of the shooting, he and another man were working on a 

handrail on some stairs for an elderly relative who also lived on the property. When he heard six 

or seven gunshots, he ran to the porch of Vlasek’s house to check on his wife and several children 

who were in the area. As he ran towards the porch, he saw Appellant holding a gun. Mathson said 

Appellant “turned, pulled a gun on me, [pointed the gun directly at me], [and] told me to get the 

fuck back, so I put my hands in the air.” He said he and Appellant were about 20 to 30 feet apart, 

and he feared for his life. As he held his hands up, he started “walking back slowly, because [I

was] not there to cause any harm.” He said he only wanted to ensure his family was okay. When 

Mathson saw Appellant get into a car and drive away, Mathson went to find his family. After he 

determined everyone was safe and his wife was calling 911, Mathson went back outside. As he 

walked out onto the porch, he saw Appellant. Mathson testified that Appellant came running 

around the corner and he “had the gun pulled on me and again says, Get the fuck out, again.” 

Appellant and Westrum both testified for the defense and Appellant asked for and received 

instructions on self-defense and defense of another in the jury charge. Westrum testified that 

Appellant and Louvier had never met before the evening of the shooting. She said she went and 

drank with Amanda and Louvier when she left Georgetown to visit with her mother and stayed 

with Amanda and Louvier for a week following an argument and break-up with Appellant.

Westrum said that the evening of the shooting, Amanda said to her, “Hey, remember that time we 

4 The medical examiner testified to eight gunshot wounds. 
4

were drinking together at my house?” Westrum was upset because she had not told Appellant about 

the time she spent with Amanda and Louvier. 

Westrum said Appellant and Louvier argued and Louvier told her and Appellant “he had a 

gun and was going to pull it out and kill us both, me and [Appellant].” She said that after she asked 

her mother to ask Amanda and Louvier to leave, she went back outside where Louvier and 

Appellant were exchanging “cuss words.” She said Louvier was walking away a little bit with 

Amanda then turned back around and knocked her to the ground where she hit her face. When the 

police arrived, Westrum told them Appellant acted in self-defense and to protect her. 

When Appellant was asked about what led to him shooting Louvier, Appellant testified

that they were sitting around and he was talking to his wife’s cousin when Amanda interrupted 

them, referencing a time “when we were getting fucked up.” After being asked who Amanda was 

referring to, Appellant testified as follows:

A. I would have to say [Westrum], because shortly after that, she . . . looked upset 

and she walked inside [Vlasek’s house].

Q. And then what happened when [Westrum] looked upset and was walking 

inside?

A. I heard–I heard somebody yell, “Why are you acting like a little bitch?”

Q. And who did that?

A. [Louvier].

Q. And when he said that, what did you do?

A. I looked at him.

Q. And then what did he say?

A. He said “What’s up, mother fucker? I got my gun on me. I keep it on me since 

my brother was killed.”
5

Appellant explained he then walked away and went to Westrum’s vehicle to retrieve his own gun 

because he “had just been threatened with a gun” and he did not feel safe. Appellant said he had 

never met Louvier before that night.

According to Appellant, Louvier was told to leave the gathering and when he refused, he 

and Appellant started to argue over him leaving, yelling at each other in a derogatory manner. At

some point during the argument, Appellant, who was facing away from Westrum, said he did not 

know whether Louvier hit Westrum or pushed her; he just heard “her hit the ground.” Appellant 

said he turned around, saw Westrum on the ground, and then shot Louvier several times.

When asked about his interaction with Mathson after he shot Louvier, Appellant testified 

he first went into the house to ensure Westrum was safe.

A. So, I was telling her to go inside, and I wanted her to go inside to check up on 

our daughter.

Q. Okay. Then what happened? 

A. I turned around, and there was somebody right on me and–

Q. Who was that somebody right on you?

A. At the time, I didn’t know. I thought it was [Louvier]. . . . But from everything 

that was said, it was [Mathson]. 

Q. Okay. And when you said someone was right on you, what did you think or 

how did you feel?

A. I just didn’t want to–I just didn’t want to, like, get, like–like, attacked or, like, 

get jumped on or anything, because I still have the firearm in my hand. So, I 

just yelled at him to, “Back the fuck up.”

. . .

Q. So, tell me what happened. Show me what happened.

A. Well, I was facing this way, and I still had my gun in my hand. And I turned, 

and I was, like, “Back the fuck up,” and I seen [sic] him raise his hands. 
6

. . .

Q What did he do?

A. He put his hands–

. . .

Q. Then he walked back? 

A. He took one step back, turned around, and took off.

Q. Okay. What was your intent? You can go ahead and lower–

A. My intent? 

Q. Yeah. What was the purpose to do that? Were you trying to kill him, hurt him? 

Tell me.

A. No. I had been threatened with a gun, and my thing is I’m not a–

Q. Go ahead and sit down. Were you scared?

A. I was still scared, yes, ma’am.

Appellant said he thought Mathson was going to get a rifle based on the way Mathson “took off 

running.” He denied encountering Mathson a second time. Appellant was arrested at the scene and 

charged with aggravated assault with a deadly weapon and the murder of Louvier.

TESTIMONY ABOUT THE EXTRANEOUS OFFENSES

On appeal, Appellant complains about the admission of two extraneous offenses into 

evidence: (1) Westrum’s telephone call to Vlasek in May 2020 regarding Appellant trying to 

smother Westrum with a pillow; and (2) an offense in October 2020 that “involved an unspecified 

alleged assault committed by [Appellant] against” Westrum.

5

5 On appeal, the State contends Appellant “properly preserved” his Rule 404(b) complaint, but then contends he 

waived “the issue” by not requesting a limiting instruction. The State does not identify the waived “issue.” We believe 

the State refers to Rule of Evidence 105, which provides that when a “court admits evidence that is admissible against 

a party or for a purpose—but not against another party or for another purpose—the court, on request, must restrict the 

evidence to its proper scope and instruct the jury accordingly.” Tex. R. Evid. 105(a). “A party may claim error in a 
7

Because the State intended to introduce the May 2020 extraneous offense through Vlasek’s 

testimony, defense counsel requested a hearing outside the jury’s presence prior to her testifying. 

The State argued that the testimony about the May 2020 offense was the “entire pretext” for why 

the shooting happened and was relevant to Appellant’s motive, intent, and lack of mistake as well 

as to rebut Appellant’s defensive theories. The State also wanted to introduce an October 2020 

incident of domestic abuse.

6 Defense counsel objected that the testimony was prohibited because 

the State was trying to show Appellant was a violent person. The trial court indicated it would 

allow testimony about both extraneous offenses. 

A. Vlasek’s testimony about the May 2020 extraneous offense

Vlasek testified that about a year before the shooting, she received a telephone call from 

her daughter, during which Westrum said, “Mom, I left him.” “He tried to kill me. He put a pillow 

over my face, tried to suffocate me. I had to kick him in the groin to get him off.”7 According to 

Vlasek, Westrum stayed with her for a time after that call and also stayed with Louvier and 

Amanda, who was around the same age as Westrum. Ultimately, after about a week, Westrum 

went back to Appellant.

A year later, on the night of the shooting, Vlasek, who was hosting the family gathering,

was inside her house when Westrum came in upset. Vlasek testified,

ruling to admit evidence that is admissible against a party or for a purpose—but not against another party or for another 

purpose—only if the party requests the court to restrict the evidence to its proper scope and instruct the jury 

accordingly.” Id. at 105(b)(1). At trial, Appellant did not ask the court to limit the jury’s consideration of the 

extraneous-offense evidence to determining whether he acted in self-defense or in defense of another on the murder 

charge. However, on appeal, Appellant does not argue that extraneous-offense evidence should have been admitted 

only for a limited purpose, and he does not raise an “issue” on appeal that the trial court erred by not giving a limiting 

instruction when the extraneous-offense evidence was first offered. 

6 The State initially wanted to introduce this extraneous offense through Mathson’s testimony, but the trial court did 

not allow it. Later, the trial court allowed the State to question Westrum about the alleged incident. 

7 When Westrum testified for the defense, she denied Appellant tried to smother her with a pillow. 
8

I had walked into the kitchen from outside and [Westrum] said, “Mom, mom, mom, 

come here.” And she was upset. She was shaking, voice was trembling. She said, 

“Amanda and [Louvier] brought up the time I spent with them and [Appellant]

didn’t know about it, and now he is angry and I’m scared. He’s pissed, and I’m 

scared. He is going to kill me. He is going to make me and [our daughter] leave and 

he is going to kill me,” is what she said.

Westrum asked Vlasek to ask Louvier and Amanda to leave. Vlasek then described her 

conversation with Amanda:

I called for Amanda to come in the house and took her in the back, in my room, and 

I spoke to her privately and said, “You know, Cara asked you not to talk about that 

week. You know how angry he can get.” And she said, “Well, I forgot.” And she 

said, “What should we do? Should we leave?” . . . By the time we walked back out 

on the patio, [Appellant] was still angry. . . . And so I said, “Yeah, y’all better go 

ahead and leave.” So, they proceeded to go to their car. . . . [Appellant was] walking 

around, not saying much to everybody else. He was aggravating [Louvier], making 

rude comments to him.

B. Westrum’s testimony about an alleged October 2020 incident

Appellant called Westrum as a defense witness, and during her cross-examination, the State 

attempted to elicit testimony about an incident in October 2020: 

Q. Now, in October of 2020, it’s been testified to that you moved–you and [your 

daughter] moved in with Addie and Mathson into their house in Georgetown; 

isn’t that correct?

A. No.

Q. And, in fact, the reason why you moved in from there is because [Appellant]

had strangled you and tried to kill you, and they allowed for you to 

immediately move, you and [your daughter], into their house; isn’t that 

correct? 

A. No.

Q. And from there, that same night that y’all moved in, . . . you were going to 

leave . . . your daughter, with them to go to a Halloween party with [Appellant], 

the same man that had just strangled you; isn’t that correct?

A. We did go to a Halloween party, but he did not strangle me.
9

Q. And, in fact–in fact, when [Mathson] found out that you were going to return 

to [Appellant] that same night and dump your daughter with them, that he told 

you—

. . .

Q. He told you, “If you go to that party, pack your bags and take [your daughter], 

because you are not going to live here. I’m not going to enable you to live with 

this abusive relationship anymore;” isn’t that correct?

A. I do not recall.

Q. You don’t recall?

A. No.

Q. So, if Braxton testified to that, he would be a liar?

A. I don’t know. You should ask him.

Q. I did ask him, and that was his answer.8

A. I don’t remember. 

DISCUSSION

On appeal, Appellant asserts evidence of the extraneous offenses was improperly admitted 

for the sole purpose of showing character conformity in violation of Texas Rule of Evidence 

404(b), and the probative value of the evidence was outweighed by its inflammatory or prejudicial 

effect. Before the trial court, the State argued the extraneous-offense testimony went to Appellant’s 

motive, intent, and lack of mistake. On appeal, the State asserts the intentional violence Appellant 

exhibited in May 2020 was the same intentional violence that caused him to point a gun at 

Mathson. 

8 Our review of Mathson’s testimony before the jury reveals the State never asked Mathson anything more than 

whether Westrum stayed with him and his wife. Mathson said she stayed for only one day in October 2020. He did 

not elaborate on why Westrum stayed at his home or testify about any conversation he had with Westrum.
10

A. Applicable law

“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character 

in order to show that on a particular occasion the person acted in accordance with the character.” 

Tex. R. Evid. 404(b)(1). However, “[t]his evidence may be admissible for another purpose, such 

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, 

or lack of accident.” Id. at 404(b)(2); see also Lemmons v. State, 75 S.W.3d 513, 523 (Tex. App.—

San Antonio 2002, pet. ref’d). “Extraneous offense evidence that logically serves any of these 

purposes is relevant beyond its tendency to prove the character of a person to show that he acted 

in conformity therewith.” Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (en 

banc). In other words, evidence of extraneous offenses must be relevant to a material issue in the 

case other than the defendant’s character. Rogers v. Peeler, 146 S.W.3d 765, 774 (Tex. App.—

Texarkana 2004, no pet.). The list of examples in Rule 404(b) is not exhaustive. See Prible v. State, 

175 S.W.3d 724, 731 (Tex. Crim. App. 2005). For example, when a defendant claims self-defense, 

the State, in order to show the defendant’s intent, may show other violent acts where the defendant 

was an aggressor. See Lemmons, 75 S.W.3d at 523; Robinson v. State, 844 S.W.2d 925, 929 

(Tex. App.—Houston [1st Dist.] 1992, no pet.) (“[a]n extraneous offense may be used to rebut a 

defensive theory, such as self-defense, even though this purpose is not mentioned in” Rule 404(b)).

Before otherwise relevant extraneous-offense evidence can be admitted, it must also satisfy 

the balancing test established in Rule of Evidence 403, which states that evidence is admissible if 

and only if its probative value is not substantially outweighed by its unfair prejudicial effect. 

Tex R. Evid. 403; see Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006); 

Montgomery, 810 S.W.2d at 388–89.
11

B. Standard of review

We review a trial court’s ruling on the admissibility of extraneous offenses under an abuseof-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the 

trial court’s ruling is within the zone of reasonable disagreement, we will uphold the ruling. Id. at 

343–44. A court’s ruling is generally within the zone of reasonable disagreement if the evidence 

shows: (1) an extraneous offense is relevant to a material, non-propensity issue; and (2) the 

probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury. Id. at 344. We will uphold the trial court’s ruling 

if it is correct on any theory of law. Id.

C. Analysis

Appellant asserted self-defense and defense of another (Westrum). During opening 

arguments, defense counsel argued:

The evidence will show that there was a dispute, because the decedent and the 

decedent’s girlfriend, Amanda, brought up an incident to cause marital problems 

between [Appellant] and his wife/girlfriend, [Westrum]. The evidence will show 

that [Westrum] didn’t initially say what the argument was about. She stayed quiet, 

because she was ashamed of the fact of what the argument was about. She was 

embarrassed, like most of us are, when there is marital discord and conflict. After 

the decedent and his girlfriend, Amanda, started trouble, they were asked to leave 

multiple times. Even though they were asked to leave once, they didn’t. They were 

trespassing.

. . .

The evidence will be that the decedent rushed at my client, [Appellant]. And when 

he rushed at him, what did [Westrum] do, his wife? She stood in front of him to 

protect her husband. The decedent pushed her down so hard that she sustained 

injuries to her face. She was on the ground next to the trash cans. The evidence will 

show then that [Appellant] reasonably believed that him [sic] and [Westrum] were 

in danger from the decedent and he fired his gun to defend, not only himself, but 

his wife, which is his God given right to do.
12

At the hearing outside the jury’s presence, the State explained to the trial court that the 

evidence was important because “this is the entire pretext of why this event even happened, this 

murder and this aggravated assault with a deadly weapon.”

Because Appellant’s testimony—that he was still afraid when he encountered Mathson and 

he thought Mathson was going to get a rifle—raised the issue of self-defense, his justification in 

brandishing the gun at Mathson became a material issue in the case. See Lolmaugh v. State, 514 

S.W.2d 758, 759 (Tex. Crim. App. 1974) (recognizing that motive becomes an issue when an 

appellant makes an issue of self-defense). If believed, Vlasek’s testimony served more than one

non-propensity purpose. It provided the jury with an explanation, other than self-defense, for 

Appellant having and using the gun—his anger over discovering Westrum had stayed with Louvier 

and Amanda in May 2020. It further explained the context for Westrum leaving Appellant in May 

2020 to stay with her mother and with Louvier and Amanda—she left Appellant because he 

attempted to smother her. Additionally, it demonstrated not only that Appellant acted as an 

aggressor in the recent past but also that his aggression involved the use of a deadly weapon. We 

conclude the testimony at issue was probative on the issue of Appellant’s defensive theory and 

relevant in showing Appellant’s state of mind and lack of mistake at the time he brandished the 

gun at Mathson. De la Paz, 279 S.W.3d at 343 (explaining that the Rule 404(b) exceptions are not 

exhaustive; “[t]he rule excludes only evidence that is offered (or will be used) solely for the 

purpose of providing bad character and hence conduct in conformity with that bad character.”); 

see also Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996) (en banc) (“if evidence 1) 

is introduced for a purpose other than character conformity, 2) has relevance to a fact of 

consequence in the case and 3) remains free of any other constitutional or statutory prohibitions, 

it is admissible.”).
13

As for the alleged October 2020 extraneous offense, the State did nothing more than pose 

a series of questions to Westrum about the incident. Questions asked of a witness are not evidence.

See, e.g., Madden v. State, 242 S.W.3d 504, 513–15 (Tex. Crim. App. 2007) (recognizing 

questions posed by attorney are not evidence); Wiggins v. State, 778 S.W.2d 877, 890 (Tex. App.—

Dallas 1989, pet. ref’d) (“[A]nswers, not questions, constitute evidence.”). The State asked 

Westrum about the day she stayed at Mathson’s home in October 2020, and she consistently denied 

any abuse. Because the State’s questions are not evidence and the questions did not elicit any 

substantive answers from Westrum, the mere fact that the State asked questions did not, in itself, 

inject any extraneous-offense evidence into the record.

Regardless, the State was permitted to rebut Appellant’s defensive theory by introducing 

evidence of extraneous offenses in which Appellant was the aggressor in the past. See Lemmons, 

75 S.W.3d at 523 (concluding in murder case where defendant claimed self-defense that it was not 

an abuse of discretion to admit testimony concerning an extraneous robbery offense to show 

defendant “had acted as a first aggressor in the past”); see also Ferris v. State, No. 08-18-00222-

CR, 2020 WL 8768947, at *6 (Tex. App.—El Paso Dec. 11, 2020, no pet.) (not designated for 

publication) (“And as Ferris made self-defense a relevant theory at trial through both his opening 

statement and cross-examination, the State was permitted to show other violent acts where Ferris 

was an aggressor in order to rebut that theory.”); Render v. State, 347 S.W.3d 905, 921 

(Tex. App.—Eastland 2011, pet. ref’d) (holding “evidence of appellant’s [prior] assault of Mike 

was admissible under Rule 404(b) to show appellant’s intent and to rebut his theory of selfdefense”).

We conclude the trial court’s ruling that the extraneous offenses were relevant for a nonpropensity purpose was within the zone of reasonable disagreement. See De La Paz, 279 S.W.3d 
14

at 344. Therefore, we next consider Appellant’s argument that the evidence should have been 

excluded because its probative value was substantially outweighed by a danger of unfair prejudice.

When a trial court considers a Rule 403 objection, it must balance the following factors:

. . . (1) how compellingly the extraneous offense evidence serves to make a fact of 

consequence more or less probable; (2) the potential of the evidence to impress the 

jury in some irrational, but nevertheless indelible way; (3) the time the proponent 

needs to develop the evidence, during which the jury will be distracted from 

consideration of the indicted offense; and (4) the proponent’s need for the evidence.

Perkins v. State, 664 S.W.3d 209, 216 (Tex. Crim. App. 2022). A ruling on the balance between 

probative value and the counter-factors set out in Rule 403 is a question for the trial court. De La 

Paz, 279 S.W.3d at 343. “[T]hat balance is always slanted toward admission, not exclusion, of 

otherwise relevant evidence.” Id. We will defer to the trial court’s balancing of these factors so 

long as it is not outside the zone of reasonable disagreement. Lane v. State, 933 S.W.2d 504, 520 

(Tex. Crim. App. 1996) (en banc).

We first examine how compellingly the extraneous-offense evidence tended to disprove 

Appellant’s defensive theory. Appellant contended he was still afraid when he encountered 

Mathson and he thought Mathson was going to get a rifle. Whether Appellant acted in self-defense 

was a hotly contested issue at trial. When an issue at trial is “hotly contested,” the State has a 

strong need for the evidence the defendant wishes to exclude. See Lane, 933 S.W.2d at 521 

(“Hence, identity was a hotly contested issue, and the integrity of appellant’s ‘Bertha’ confessions 

was of critical importance to the State.”); Lawson v. State, No. 13-22-00182-CR, 2023 WL 

5124697, at *7 (Tex. App.—Corpus Christi-Edinburg Aug. 10, 2023, no pet.) (mem. op., not 

designated for publication) (holding extraneous-offense evidence was “of critical importance to 

the State” based on the State’s argument that the extraneous-offense testimony “was the main 

evidence it had to rebut Lawson’s claim of self-defense”).
15

Next, we analyze the potential for the extraneous-offense evidence to impress the jury in 

some irrational, but indelible, way. On appeal, Appellant contends testimony that he was violent 

and abusive towards Westrum reached a level that was “so horrifying that a juror of normal 

sensitivity would necessarily have difficulty rationally deciding the critical issues of the case” after 

hearing it. See Alvarado v. State, 912 S.W.2d 199, 212 (Tex. Crim. App. 1995) (en banc), overruled 

on other grounds by Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008). We disagree.

“[T]he plain language of Rule 403 does not allow a trial court to exclude otherwise relevant 

evidence when that evidence is merely prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 

(Tex. Crim. App. 2013). “Indeed, all evidence against a defendant is, by its very nature, designed 

to be prejudicial.” Id. The question in a Rule 403 analysis is whether the evidence was unfairly

prejudicial. See Caston v. State, 549 S.W.3d 601, 612–13 (Tex. App.—Houston [1st Dist.] 2017, 

no pet.) (acknowledging “evidence that appellant sexually abused another child in addition to the 

complainant in the charged offense was clearly prejudicial to his case,” but he did not establish it 

“was unfairly prejudicial”). Here, although the extraneous-offense evidence may have been

prejudicial, Appellant has not shown that the evidence was unfairly prejudicial.

Further, although using a pillow to try to smother Westrum and threatening Mathson with 

a gun both involve use of a deadly weapon, neither extraneous offense was similar to the indicted 

offense. Cf., Halliburton v. State, 528 S.W.2d 216, 219 (Tex. Crim. App. 1975) (“The presence or 

absence of similarity is not entirely determinative of the admissibility of the extraneous offense. If 

the extraneous offense is relevant in tending to disprove the defensive theory, it should be 

admissible.”); Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2014, no 

pet.) (holding that “[w]henever the extraneous offense is similar to the charged offense, there is 

always a potential that the jury may be unfairly prejudiced by the defendant’s character 
16

conformity”); Keller v. State, 818 S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1991, pet. 

ref’d) (“Appellant’s repeated failure to pay in the four transactions allowed in evidence leads 

logically to the inference that he lacked the intent to pay in the present instance.”).

We may also consider the jury charge when determining whether the extraneous-offense 

evidence had a misleading effect. Blackwell v. State, 193 S.W.3d 1, 15 (Tex. App.—Houston [1st 

Dist.] 2006, pet. ref’d) (“The trial court’s instructions to the jury are a factor to consider in 

determining whether the jury considered the extraneous-offense evidence improperly, i.e., as 

character conformity evidence, or properly, as evidence to rebut a defensive theory or some other 

permissible reason under rule 404(b).”). As a general rule, we presume the jury will follow the 

trial court’s instructions in the manner presented in the charge. Thrift v. State, 176 S.W.3d 221, 

224 (Tex. Crim. App. 2005).

Here, the trial court mitigated any tendency of the extraneous-offense evidence to confuse 

or distract the jury from the main issues at trial by its charge. Specifically, the trial court identified 

for the jury the elements the State was required to prove by its indictment and instructed the jury 

that it could consider the extraneous-offense evidence only if it found Appellant had committed 

the extraneous offenses beyond a reasonable doubt, and then, if it made that finding, that it could 

only consider the evidence for its bearing on matters relevant to determining whether Appellant

committed the acts alleged in the indictment. The jury instruction properly limited the jury’s 

consideration of the extraneous-offense evidence to issues other than character conformity, such 

as to refute a defensive theory, and therefore minimized the potential misleading effect of the 

evidence. 

Finally, Vlasek’s testimony about the extraneous offense is a relatively short portion of the 

State’s case-in-chief. Because she had knowledge of other relevant matters, her testimony spans 
17

approximately 87 pages of the reporter’s record; however, less than one page of her testimony was

dedicated to specifically addressing the extraneous offense. The State’s attempt to cross-examine

Westrum about the October 2020 incident is less than three pages and amounted to no substantive 

evidence. Appellant called seven witnesses to testify in his case-in-chief. By comparison, the 

State’s entire case-in-chief included seven other witnesses and over 100 exhibits, and the State did 

not refer to either extraneous offense in its closing argument. The jury charge also cautioned the 

jurors that any notes they took were not evidence, statements made by and questions asked by the 

lawyers were not evidence, and the evidence consisted only of the testimony and exhibits admitted 

in the trial. 

Based on our review of the relevant factors, we conclude the trial court did not abuse its 

discretion in determining that the probative value of the extraneous-offense evidence was not 

outweighed by its prejudicial effect. 

CONCLUSION

For the reasons stated above, we overrule Appellant’s sole issue on appeal and affirm the 

trial court’s judgment.

LISA J. SOTO, Justice

April 30, 2024

Before Alley, C.J., Palafox and Soto, JJ.

(Do Not Publish)