Opinion filed September 26, 2024

In The

Eleventh Court of Appeals __________

No. 11-21-00082-CR

__________

YAHEL ELIYAH MCDANIEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause Nos. 25663, 25665, 25668, 25760, & 25960

O P I N I O N

Appellant, Yahel Eliyah McDaniel, was indicted in separate cause numbers 

for aggravated assault against a public servant, evading arrest or detention with a 

vehicle, unauthorized use of a vehicle, possession of a controlled substance,

and aggravated robbery. See TEX. PENAL CODE ANN. § 22.02 (West Supp. 2023),

§ 38.04, § 31.07 (West 2016), § 29.03 (West 2019); TEX. HEALTH & SAFETY CODE 
2

ANN. § 481.115 (West Supp. 2023). The cases were consolidated for trial.1 

Appellant pleaded guilty to evading arrest or detention with a vehicle, unauthorized 

use of a vehicle, and possession of methamphetamine in an amount of one gram or 

more but less than four grams. Appellant pleaded not guilty to aggravated assault 

against a public servant and aggravated robbery. 

The jury convicted Appellant of each offense and assessed his punishment at

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for terms of forty years for aggravated assault, ten years for evading arrest or 

detention, ten years for possession of a controlled substance, thirty years for 

aggravated robbery, and two years in a state jail facility for unauthorized use of a 

vehicle. The trial court ordered that Appellant’s sentences run concurrently.

Appellant’s first court-appointed appellate counsel submitted an Anders brief 

and filed a motion to withdraw. See Anders v. California, 386 U.S. 738 (1967). 

Following the procedures set forth in Anders, Kelly v. State, 436 S.W.3d 313 (Tex. 

Crim. App. 2014), and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008), we 

independently reviewed the record and concluded that this appeal was not 

particularly amenable to a disposition under Anders. We granted appellate counsel’s 

motion to withdraw, abated the appeal, and remanded the cause to the trial court with 

instructions to appoint other appellate counsel. This appeal was reinstated after the 

trial court appointed new appellate counsel. 

In four issues on appeal, Appellant asserts that the trial court: (1) abused its 

discretion in failing to find that the State’s use of a peremptory strike was racially 

motivated; (2) committed charge error by including “good conduct time” language 

in the punishment charge from a repealed version of Article 37.07, Section 4(a) of 

1

We consolidated the separate appeals into a single cause number.
3

the Texas Code of Criminal Procedure; (3) abused its discretion by admitting 

extraneous offense evidence during guilt/innocence; and (4) erroneously failed to

give a limiting instruction for the admitted extraneous offense evidence. We affirm. 

Background Facts

Veronica Jo Seaton, the secretary of the First Baptist Church in Gorman,

arrived at work and noticed people camping outside the church. Seaton testified that 

Appellant was one of the people she saw outside the church. Seaton called Billy 

Paul Miears, the chairman of deacons at the church, and told him about the people 

camping outside. Miears met Seaton at the church. 

A short time later, Seaton noticed that the church’s kitchen window was open

and that there was water “shooting up” from the water line outside. Miears briefly 

left to get supplies to fix the water line. When Miears returned, he parked his vehicle 

by the water line so that he could easily access his tools, and then he repaired the 

water line. Afterwards, he and Seaton went into the kitchen to make sure that the 

water was working. Appellant walked into the kitchen behind them, introduced 

himself, and apologized for breaking the water line. Seaton left the kitchen to lock

her office. 

Miears testified that Appellant looked outside the kitchen door, noticed 

Miears’s parked vehicle, and quickly walked outside. Miears followed Appellant 

after realizing that he had left his keys in the vehicle. Appellant entered Miears’s 

vehicle, started it, and shifted gears before Miears reached inside and turned off the 

vehicle. A struggle over the keys ensued. When Seaton returned to the kitchen after 

securing her office, she saw Appellant and Miears fighting in Miears’s vehicle. 

Seaton called 9-1-1. 
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During the struggle, the keys fell between the center console and driver’s seat. 

Miears began trying to pull Appellant out of the driver’s seat, but Appellant pushed 

Miears out of the vehicle, causing him to fall backwards onto the ground. Miears, 

who was sixty-six years old at the time, sustained broken glasses, a cut on his face, 

and an injured arm. Miears reentered the vehicle, “picked up some tools” from the 

backseat to “subdue” Appellant, but Appellant “bolted out of the [vehicle].”

After Appellant left Miears’s vehicle, Seaton watched him get inside her 

vehicle. Appellant was unable to start Seaton’s vehicle because she had the keys. 

Appellant, appearing aggravated, exited Seaton’s vehicle and “fled.” Deputy 

Barbara Fenley with the Eastland County Sheriff’s Office arrived at the scene shortly 

after Appellant left.

Deputy Fenley noticed tools scattered out on the road. Two men came out of 

a nearby house and told Deputy Fenley that they worked for Elite Plumbing, and that 

their work vehicle was missing. One of the men told Deputy Fenley that there was 

a firearm in the console of the vehicle. Deputy Fenley notified dispatch that 

Appellant was possibly traveling in a white Elite Plumbing vehicle and that there 

was a firearm inside the vehicle’s console.

Texas Department of Public Safety (DPS) Trooper Jose Astello was traveling 

on State Highway 6 responding to the assault call in Gorman when dispatch advised 

that Appellant was driving toward Eastland in a stolen, white, Elite Plumbing 

vehicle. After dispatch advised that the vehicle was last seen near Carbon, Trooper 

Astello turned his patrol unit around, facing north toward Eastland, and prepared to 

stop the vehicle. Trooper Astello watched the vehicle approaching in his rearview 

mirror, and his rear radar display showed that the vehicle was traveling at 100 miles 

per hour. Trooper Astello activated his emergency lights and siren as Appellant
5

drove the stolen vehicle toward him at 100 miles per hour. Appellant passed Trooper 

Astello without stopping, and Trooper Astello began pursuing the vehicle. 

Trooper Astello testified that Appellant intentionally slammed on the brakes 

to “brake check[]” him during the pursuit. Appellant veered into the oncoming lane 

of traffic and drove toward a pedestrian standing near a parked vehicle, forcing the 

pedestrian to “run back across his vehicle to avoid being hit.” As Appellant turned 

onto Seaman Street in Eastland, Trooper Astello observed Appellant stick his arm 

out of the vehicle and fire several shots into the air with a firearm while traveling at 

seventy-five miles per hour in a thirty-five mile per hour residential zone with “fairly 

heavy” traffic.

2

 Appellant sped around the courthouse and disregarded stop signs. 

Trooper Astello testified that Appellant committed multiple traffic violations 

throughout the pursuit, including driving on the wrong side of the road, and speeding 

up to 100 miles per hour. 

DPS Trooper Dale Carroll Escobedo testified that he and several other 

troopers were at the Eastland County Courthouse when they responded to the call 

about the pursuit on Highway 6 coming into Eastland. The troopers drove toward 

Highway 6, planning to intercept Appellant before he entered Eastland. Appellant

passed the troopers and continued driving into downtown Eastland at seventy-toeighty miles per hour. Troopers were unable to set up tire spikes to stop the vehicle 

because the downtown area had “so many streets and turns.” Appellant continued 

speeding in downtown, forcing pedestrians and other drivers to “get[] out of the 

way.” At some point during the pursuit, Appellant was driving toward Trooper 

Escobedo. Appellant crossed into Trooper Escobedo’s lane, and Trooper Escobedo 

2

As detailed below, Appellant objected to the admission of evidence regarding him shooting a 

firearm from the vehicle’s window. The trial court overruled Appellant’s objection.
6

testified that he feared Appellant was going to cause a head-on collision. Trooper 

Escobedo pulled to the side of the road to avoid being hit head-on by Appellant. 

Trooper Escobedo believed that Appellant intentionally swerved into his lane of 

traffic.

DPS Trooper Robert Ronald McGrath was also involved in the pursuit. He 

testified that his goal was to “get ahead” of Appellant and to prevent him from 

continuing to evade the troopers. As the pursuit continued out of the downtown area, 

Trooper McGrath saw Appellant turn back onto Seaman Street. Trooper McGrath 

feared that Appellant was willing to hurt people as Appellant drove back toward the 

busy downtown area, rather than driving away from town and toward the country. 

Having seen Appellant swerve toward another police vehicle, Trooper McGrath 

decided to ram his patrol unit into the right front quarter panel of the plumbing 

vehicle in order to disable the vehicle and to prevent Appellant from reentering 

downtown. Appellant was pulled from the vehicle and subsequently treated at the 

hospital.

During the punishment phase, the owner of the plumbing vehicle testified that 

he sustained at least $25,000 in damages because the vehicle was a total loss and

some equipment on the vehicle was never recovered. A nurse who treated Appellant 

after the crash testified that Appellant told her he shot the firearm at “a guy who was 

messing with [his] girl,” and that he “intended on murdering him.” Trooper Astello 

testified that Appellant’s act of shooting the firearm from the vehicle’s window 

constituted deadly conduct. Multiple troopers testified that Appellant was a “danger 

to society.” Roger Lynn Brownlee, Eastland County’s jail administrator, testified 

that Appellant did “not always” follow the rules while in jail awaiting trial. David 

Cherry, the director of adult probation in Eastland County, testified that Appellant 
7

had previously been on probation. In Cherry’s opinion, Appellant was not a suitable 

candidate for probation due to a lack of resources and “concern[]” for the community 

and probation officers. 

Appellant testified during the punishment phase of trial that he had “so 

much regret” and apologized for his actions. Appellant confirmed that he used 

methamphetamine, amphetamine, and THC on the day of the offenses. Appellant 

testified that he was trying to take Miears’s vehicle to find his girlfriend, who had 

been arrested at the church before Appellant fled. Appellant testified that his plan 

was to drive to the Eastland County jail and “turn himself in.” When asked why he 

did not pull over if his plan was to turn himself into the jail, Appellant responded, 

“I’m not an intelligent person.”

Appellant testified that he shot the firearm out of the vehicle’s window 

“between seven and nine times.” Appellant denied shooting the firearm “in town

near houses.” Appellant denied aiming for a pedestrian while driving, and testified 

that the vehicle had lost traction because it was raining. Appellant denied intending 

to hit Trooper Escobedo when he crossed into his lane. Appellant admitted that he 

was in possession of methamphetamine on the day of the incident.

Appellant testified that he had had a difficult childhood. Appellant said that 

he has had problems with alcohol and narcotics since he was a teenager and that he 

had been sexually molested by a member of his parent’s church when he was fifteen. 

Appellant testified that he has tried to commit suicide “[s]everal times” throughout 

his life. Appellant also testified that he did not take the medication prescribed to 

him by mental health facilities. Appellant agreed with his trial counsel’s statement 

that he “probably wouldn’t be here today” if he had taken his medication as 
8

prescribed. Appellant’s parents testified and confirmed that Appellant had had a 

difficult childhood and that he had an issue with narcotics.

Analysis

Batson Challenge

In his first issue, Appellant contends that the trial court abused its discretion 

when it overruled his Batson challenge and did not find purposeful discrimination in 

the State’s use of a peremptory strike against a Black juror. See Batson v. Kentucky, 

476 U.S. 79 (1986); see also TEX. CODE. CRIM. PROC. ANN. art. 35.261 (West 2006). 

A challenge under Batson involves a three-step process: 

First, a defendant must make a prima facie showing that a peremptory 

challenge has been exercised on the basis of race; second, if that 

showing has been made, the prosecution must offer a race-neutral basis 

for striking the juror in question; and third, in light of the parties’ 

submissions, the trial court must determine whether the defendant has 

shown purposeful discrimination.

Hall v. State, 663 S.W.3d 15, 40–41 (Tex. Crim. App. 2021) (quoting Snyder v. 

Louisiana, 552 U.S. 472, 476–77 (2008)). “In evaluating purposeful discrimination, 

a court inquires as to whether ‘the prosecutor’s stated reasons were the actual reasons 

or instead were a pretext for discrimination.’” Compton v. State, 666 S.W.3d 685, 

698 (Tex. Crim. App. 2023) (quoting Flowers v. Mississippi, 588 U.S. 284, 298

(2019)). “[P]urposeful discrimination is shown when all the ‘relevant facts and 

circumstances taken together establish that the trial court committed clear error in 

concluding that the State’s peremptory strike[s] . . . [were] not motivated in 

substantial part by discriminatory intent.’” Id. (quoting Flowers, 588 U.S. at 288).

A trial court’s determination of whether the defendant has shown purposeful 

discrimination “is a pure credibility finding,” and the trial court’s ruling on a Batson 

challenge will be affirmed unless it is clearly erroneous. Hall, 663 S.W.3d at 41 
9

(citing Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (“The term 

‘pretext’ is solely a question of fact; there is no question of law.”)). We consider the 

entire voir dire record on appeal, and we “are not limited to arguments or 

considerations that the parties called to the trial judge’s attention, so long as the 

arguments or considerations are grounded in the appellate record.” Compton, 666 

S.W.3d at 698. In reviewing for clear error, we may consider the following factors: 

“(1) statistical evidence; (2) evidence of disparate questioning of similarly-situated 

venirepersons; (3) side-by-side comparisons of the stricken venirepersons and the 

accepted venirepersons; (4) whether the record supports the State’s explanations for 

its strikes; and (5) any other relevant circumstance bearing on the issue of purposeful 

discrimination.” Id. 

Here, Appellant’s trial counsel made a Batson challenge after the State 

used a peremptory strike on the only Black venireperson on the panel (Venireperson 

No. 2). The trial court found that the challenge was timely and asked for the State’s 

response. The State’s proffered race-neutral reason for striking Venireperson No. 2

was that he “specifically stated everyone deserves a second chance.” The State 

elaborated that its strike was “based on comments [Venireperson No. 2] made in voir 

dire, specifically comments he made in response to questions presented to him by 

[Appellant’s trial counsel.]” The conversation between Appellant’s trial counsel and 

the venireperson that the trial court was referring to is as follows:

[DEFENSE COUNSEL]: Now, I want to talk about punishment. 

This case, punishment is important to this case. I want to spend some 

time talking about punishment and how you feel about punishment, and 

how you think about it, and what it’s for. [Venireperson No. 2], how 

do you feel about punishment?

VENIREPERSON: How do I feel about it?
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[DEFENSE COUNSEL]: Yeah.

VENIREPERSON: Oh, man. 

[DEFENSE COUNSEL]: Why do we punish people at the 

courthouse?

VENIREPERSON: Because of something they did wrong. Me, 

myself, I’ve done a lot of things wrong. I haven’t gotten caught, but 

me, myself, I feel like this is my own -- I feel like everybody should get 

a second chance in life because we all make mistakes in life.

[DEFENSE COUNSEL]: We all make mistakes. Everybody 

should get a second chance. What do you feel like the purpose for 

punishment here in the courthouse is? And it’s okay if your answer is, 

everybody should get a second chance, according to --.

VENIREPERSON: I mean, I’m a straight and blunt person. I 

mean, I feel like if you do the crime, you do the time; but, at the same 

time, though, you know, it’s so hard, the mercy on that person, you 

know. I have had my faults, too. Like I was telling you, I just never

got caught.

[DEFENSE COUNSEL]: Are you like me? If they caught you 

for everything you did, they would have to put you under the jail.

VENIREPERSON: Pretty much, yeah.

The trial court overruled the Batson challenge and empaneled the jury.

Appellant acknowledges that we are unable to glean statistical information 

on the entire venire panel and the venirepersons on whom the State exercised 

peremptory strikes because the record before us does not reflect the racial makeup 

of the entire venire panel. Nevertheless, Appellant asserts that the State failed 

to show a race-neutral reason for striking Venireperson No. 2 because (1) the State 

never individually questioned Venireperson No. 2, and (2) several other 

venirepersons also stated that they believed in second chances or in giving grace, yet 

not all venirepersons who did so were struck by the State. Appellant specifically 
11

asserts that the State did not strike Venireperson Nos. 5 and 15, despite their 

indications that they believe in second chances or in grace. 

As discussed below, the record shows that the State individually questioned 

Venireperson No. 2 and struck Venireperson No. 15. Further, the responses given 

by the State’s stricken venirepersons indicated that they would consider giving a 

second chance or extending grace to determine if punishment is warranted. 

Accordingly, the record supports the State’s nondiscriminatory reasons for 

exercising its peremptory strikes and the trial court did not clearly err in overruling 

Appellant’s Batson challenge.

The record does not reflect disparate questioning of similarly-situated 

venirepersons. See Compton, 666 S.W.3d at 698. Appellant’s contention that the 

State never individually questioned Venireperson No. 2 is incorrect. During the 

State’s voir dire, Venireperson No. 2 raised his hand when the State asked if the 

venirepersons knew someone who had “been charged with possession of drug cases, 

and/or gone through rehab, or had some issues in their family.” Veniresperson No. 2 

raised his hand and told the State that his cousin had been involved with drugs and 

went to prison. When the State asked Venireperson No. 2 if he had a “preconceived 

idea about how people should be handled for drug cases,” he responded, “No.” 

Venireperson No. 2 told the State that his cousin’s case had been handled fairly and 

that he would be able to consider the full range of punishment if someone were to 

be found guilty of possession of a controlled substance. 

Venireperson No. 2 also said that his family member’s case happened “in 

DFW,” and the State asked if Venireperson No. 2 was “okay with” the fact that a 

prosecutor on Appellant’s case was a former prosecutor in Tarrant County. 

Venireperson No. 2 responded “Yes, ma’am.” The State then continued asking 
12

similar questions to the other venirepersons who said that they knew someone that 

had been involved with drugs. Further, Appellant’s trial counsel asked numerous 

venirepersons what they thought the purpose of punishment was after his 

conversation with Venireperson No. 2. Therefore, the record demonstrates that 

venirepersons who were similarly-situated to Venireperson No. 2 were asked similar 

questions from both the State and Appellant’s trial counsel. See Compton, 666 

S.W.3d at 698. 

Despite Appellant’s assertion to the contrary, the State struck Venireperson 

No. 15, who said of punishment:

I think it is a teaching tool, like I use with my own kids, but I also know 

I can punish my son for the same thing multiple times, and he still 

doesn’t understand. So, I think grace goes into it as well.

The State also struck Venireperson No. 29, who said:

I am kind of like everybody else on punishment, depending on the 

severity of the decision that was made. I do feel there is an element of 

grace that can be given, you know, if it’s found to not be clear, but I 

think it is necessary for the decision that was made, if it was severe 

enough.

Finally, the State struck Venireperson No. 30, who said that she “believe[d] in grace”

and that:

[P]unishment . . . can be a time of growth, but also can be detrimental 

in a lot of ways, and I think that each case needs to be weighed and 

thought about, specifically to that person and what led up to those 

events in order to determine how that punishment should or should not 

be applied.

The State did not strike Venireperson No. 35, who said that:

[Y]ou could be punished for the crime, but it also needs to be on an 

individual basis. There is a difference between a first time offender and 

someone who has offended multiple times. Kind of like he said, you 

got have [sic] a lot of grace, but fit it to the individual, according to the 
13

punishment. I think it can be a way to rehabilitate the individual, and I 

also think it can be a way to deter them from repeating, and give them 

a time of reflection as well.

The State did not strike Venireperson No. 17, who said that:

I believe it’s a system of checks and balances, and that if somebody is 

found guilty on a trial, that, you know, whatever the punishment is, I 

believe that it’s whether they deserve a second chance.

Finally, the State did not strike Venireperson No. 5, who said:

I mean, if the evidence is there, it’s there. I mean, if the evidence is 

truly there, if you see stuff that happened, or you know, you can’t just

-- In my case, I see plenty of theft. It’[s] on camera. How do you lie 

about it? Do I believe people get second chances? Yes, but --.

Accordingly, while the State did not strike every venireperson who would 

consider second chances or grace in their punishment determination, the State struck

more than half of those who did. Thus, there is support in the record for the State’s 

explanation that it struck Venireperson No. 2 because he said that he believed in 

second chances—especially considering that Venireperson No. 2 said “everybody” 

deserved a second chance, while the venirepersons who were not struck indicated 

that punishment was particular to the facts and circumstances surrounding the 

underlying offense. 

The State also said that it struck Venireperson No. 2 because of “comments 

he made in response to questions presented to him by [Appellant’s trial counsel].” 

It is thus also plausible that the State struck Venireperson No. 2 based on his 

aforementioned conversation with Appellant’s trial counsel regarding the difficulty 

of determining a person’s punishment because he had also made “mistakes” in the 

past and had “never got[ten] caught.” 

The totality of the record supports the State’s explanation that it struck 

Venireperson No. 2 because of his belief in second chances, and the record does not 
14

support the assertion that the State’s justification was “merely a pretext for racial 

discrimination.” See Compton, 666 S.W.3d at 710. Therefore, we cannot say that 

the trial court clearly erred in accepting the State’s proffered race-neutral reason for 

striking Venireperson No. 2. We overrule Appellant’s first issue.

Charge Error

In his second issue, Appellant asserts that the trial court erred when it 

submitted a punishment charge with a prior version of Article 37.07, Section 4(a) 

with repealed “good conduct time” language. See CRIM. PROC. art. 37.07 § 4(a) 

(West Supp. 2023). The relevant portion of the trial court’s charge stated as follows: 

Under the law applicable in this case, the defendant, if sentenced 

to a term of imprisonment, may earn time off the period of incarceration 

imposed through the award of good conduct time. Prison authorities 

may award good conduct time to a prisoner who exhibits good 

behavior, diligence in carrying out prison work assignments, and 

attempts at rehabilitation. If a prisoner engages in misconduct, prison 

authorities may also take away all or part of any good conduct time 

earned by the prisoner.

It is also possible that the length of time for which the defendant 

will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is 

sentenced to a term of imprisonment, the defendant will not become 

eligible for parole until the actual time served equals one-half of the 

sentence imposed or 30 years, whichever is less, without consideration 

of any good conduct time the defendant may earn. If the defendant is 

sentenced to a term of less than four years, the defendant must serve at 

least two years before the defendant is eligible for parole. Eligibility 

for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good 

conduct time might be applied to this defendant if sentenced to a term 

of imprisonment, because the application of these laws will depend on 

decisions made by prison and parole authorities. 
15

You may consider the existence of the parole law and good 

conduct time. However, you are not to consider the extent to which 

good conduct time may be awarded to or forfeited by this particular 

defendant. You are not to consider the manner in which the parole law 

may be applied to this particular defendant.

The relevant portion of the correct parole instruction, which should have been 

included in the jury charge, provides as follows:

The length of time for which a defendant is imprisoned may be reduced 

by the award of parole. 

Under the law applicable in this case, if the defendant is sentenced to a 

term of imprisonment, the defendant will not become eligible for parole 

until the actual time served equals one-half of the sentence imposed or 

30 years, whichever is less. If the defendant is sentenced to a term of 

less than four years, the defendant must serve at least two years before 

the defendant is eligible for parole. Eligibility for parole does not 

guarantee that parole will be granted. 

It cannot accurately be predicted how the parole law might be applied 

to this defendant if sentenced to a term of imprisonment, because the 

application of that law will depend on decisions made by parole 

authorities.

You may consider the existence of the parole law. You are not to 

consider the manner in which the parole law may be applied to this 

particular defendant.”

Id. Thus, the trial court’s parole instruction was erroneous because it incorrectly 

informed the jury that Appellant would receive credit for good conduct time toward 

parole. However, Appellant did not object to this error in the trial court.

Under Article 36.14, the trial court is required to give the jury a written charge 

“setting forth the law applicable to the case.” CRIM. PROC. art. 36.14 (West 2007); 

Vega v. State, 349 S.W.3d 514, 518 (Tex. Crim. App. 2013). A review of alleged 

jury-charge error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 743–

44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. 
16

App. 1994). We must first determine whether the charge contained any actual error. 

Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If there was actual 

error, we must next determine whether the error resulted in sufficient harm to require 

reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If an 

appellant fails to object to or present a properly requested jury charge, any error in 

the charge “should be reviewed only for ‘egregious harm’ under Almanza.” 

Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); see Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). 

The State concedes that the trial court’s parole instruction was erroneous, but 

asserts that Appellant did not suffer egregious harm from it. Appellant urges us to 

“adopt” Judge Clinton’s dissent in Keady v. State and find that the charge was 

egregiously harmful because it did not explain why jurors are not permitted to 

discuss parole during their deliberations. See Keady v. State, 687 S.W.2d 757, 761

(Tex. Crim. App. 1985) (Clinton, J., dissenting) (“[J]urors would be better informed 

and equipped to remove operation of parole laws from consideration during their 

deliberations if and when they are given a common sense reason for doing so.”). 

We decline to conclude that Appellant was harmed when the trial court did not 

include additional language in its charge that was not requested and is not found in

Article 37.07, Section 4(a). See CRIM. PROC. arts. 36.14; 37.07 § 4(a); Luquis v. 

State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (“The Texas Legislature enacted 

legislation that requires the trial judge to instruct the jury in the precise wording that 

the statute recites . . . There are even quotation marks around the wording of the 

instruction. That is at least some indication that the Legislature did not want any 

creative deviations from its chosen language.”).
17

Irrespective of Appellant’s Keady argument, the trial court erred in giving a 

charge that contained language not found in Article 37.07, Section 4(a). Because

Appellant did not object to the erroneous parole instruction, reversal is only required 

if the alleged error results in egregious harm. Villarreal v. State, 453 S.W.3d 429, 

433 (Tex. Crim. App. 2015). “Charge error is egregiously harmful if it affects the 

very basis of the case, deprives the defendant of a valuable right, or vitally affects a 

defensive theory.” Id. “Egregious harm is a ‘high and difficult standard’ to meet, 

and such a determination must be ‘borne out by the trial record.’” Id. (quoting 

Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “An egregious harm 

determination must be based on a finding of actual rather than theoretical harm.” 

Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. 

State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). 

Egregious harm is only shown when the error “created such harm that [the 

appellant] ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at 171. In 

Almanza, the Texas Court of Criminal Appeals outlined four factors that a reviewing 

court should consider when determining whether a jury charge error resulted in 

egregious harm: (1) the charge itself; (2) the state of the evidence, including 

contested issues and the weight of the probative evidence; (3) arguments of counsel; 

and (4) any other relevant information revealed by the record of the trial as a whole. 

See Villarreal, 453 S.W.3d at 433.

We first analyze the erroneous instruction in relation to the jury charge as a 

whole. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. Here, the jury 

was specifically instructed as follows:

You may consider the existence of the parole law and good 

conduct time. However, you are not to consider the extent to which 

good conduct time may be awarded to or forfeited by this particular 
18

defendant. You are not to consider the manner in which the parole law 

may be applied to this particular defendant.

Therefore, while the jury should not have received any instructions about good 

conduct time, the mitigating language that was included in the punishment charge 

communicated to the jury that they could not consider the possibility of Appellant 

being awarded good conduct time in their sentencing. This “curative” instruction 

prevented harm to Appellant because it cautioned the jury that it could not consider 

good conduct time during its assessment of punishment. Newman v. State, 49 

S.W.3d 577, 581 (Tex. App.—Beaumont 2001, pet. ref’d). In the absence of 

evidence to the contrary, we presume the jury followed the instructions that the trial 

court gave in its charge. See Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 

2011); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). Because

nothing in the record shows that the jury considered the possibility that Appellant 

may be given good conduct time during its deliberations, this factor weighs against 

a finding of egregious harm.

Second, we examine the state of the evidence. Villarreal, 453 S.W.3d at 433; 

Almanza, 686 S.W.2d at 171. Neither side presented evidence regarding Appellant’s 

ability to earn good conduct time. Therefore, the second factor weighs against a 

finding of egregious harm. 

Third, we consider the arguments of counsel. Villarreal, 453 S.W.3d at 433; 

Almanza, 686 S.W.2d at 171. The State did not make an opening statement during 

punishment, and Appellant’s trial counsel’s opening statement focused on the 

mitigating evidence about Appellant’s life, such as his difficult childhood. During 

its closing, the State characterized the punishment phase as “all about probation 

versus prison.” Appellant’s trial counsel asked the jury to focus on Appellant’s 
19

“facts in his life that brought him to this point and assess an individual sentence for 

[Appellant].” Neither side discussed good conduct time during closing arguments. 

Thus, the third factor weighs against a finding of harm.

Fourth, we consider any other relevant information in the record. Villarreal, 

453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. The jury did not send any notes 

to the trial court during punishment. Therefore, there was no indication in the record 

that the jury was impermissibly considering whether Appellant would receive good 

conduct time, and this factor weighs against a finding of egregious harm. 

None of the Almanza factors demonstrate that Appellant’s defensive theories 

were affected by the trial court’s erroneous instruction, or that the error created such 

harm that Appellant was unable to have a fair trial. See Alaniz v. State, 648 S.W.3d 

657, 662–64 (Tex. App.—Eastland 2022, no pet.). We overrule Appellant’s second 

issue. 

Extraneous Offense

In his third issue, Appellant contends that the trial court abused its discretion 

when it admitted evidence of the extraneous act of Appellant shooting a firearm from 

the window of the vehicle while he was evading arrest. The State responds that the 

trial court did not err in admitting the evidence because it constituted sametransaction contextual evidence. 

Whether to admit evidence at trial is a preliminary question to be decided by 

the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. 

Crim. App. 2012). We review a trial court’s admission or exclusion of evidence for 

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

2019). The trial court’s decision will be upheld as long as it was within the “zone 

of reasonable disagreement.” Beham v. State ̧ 559 S.W.3d 474, 478 (Tex. Crim. 
20

App. 2018). We will not reverse a trial court’s evidentiary ruling, even if the trial 

court’s reasoning is flawed, if it is correct on any theory of law that finds support in 

the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. 

Crim. App. 2016).

Evidence of an extraneous offense is not admissible during the

guilt/innocence phase to prove that a defendant acted in conformity with his 

character. TEX. R. EVID. 404(b); Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. 

Crim. App. 2021); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). 

An extraneous offense may, however, be admissible for another purpose. 

Ithalangsy, 634 S.W.3d at 756; Devoe, 354 S.W.3d at 469. A trial court’s decision 

to admit extraneous offense evidence will generally be within the zone of reasonable 

disagreement if the evidence of the extraneous offense is “relevant to a material, 

non-propensity issue.” See Devoe, 354 S.W.3d at 469 (citing Powell v. State, 63 

S.W.3d 435, 438 (Tex. Crim. App. 2001)). 

As noted by the Court of Criminal Appeals: 

Evidence of another crime, wrong, or act also may be admissible as 

same-transaction contextual evidence where “several crimes are 

intermixed, or blended with one another, or connected so that they form 

an indivisible criminal transaction, and full proof by testimony, . . . of 

any one of them cannot be given without showing the others.” Wyatt v. 

State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Rogers v, 

State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). The jury is entitled 

to know all relevant surrounding facts and circumstances of the charged 

offense. Id. But, under Rule 404(b), same-transaction contextual 

evidence is admissible only when the offense would make little or no 

sense without also bringing in that evidence, and it is admissible “only 

to the extent that is necessary to the jury’s understanding of the 

offense.” Id. (quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. 

Crim. App. 1996)).

Devoe, 354 S.W.3d at 469; see also Ithalangsy, 634 S.W.3d at 756. 
21

At the start of trial, Appellant’s trial counsel notified the trial court that he 

would be requesting a hearing on the video footage of Appellant shooting a firearm

from the window of the vehicle (the firearm video) before it was played for the jury. 

The State responded that the firearm video would be admissible as same-transaction 

contextual evidence and as evidence of the “steps taken by [Appellant] in preparation 

for the charged offense planned.” During Trooper Astello’s testimony, Appellant’s 

trial counsel asked to approach before playing the firearm video. Appellant’s trial 

counsel objected to the firearm video and asserted that Appellant’s act of shooting 

the firearm was “an extraneous offense that is not relevant to this case.” The trial 

court overruled Appellant’s objection, and the firearm video was played for the jury. 

Trooper Astello testified that he saw Appellant’s “arm come out the window, about 

a 45 degree, and then the handgun and I heard the shots being fired.” Two other 

officers testified that they were aware Appellant shot a firearm during the pursuit.

On appeal, Appellant asserts that the evidence related to him shooting a 

firearm should not have been admitted at trial because the act does not qualify as 

same-transaction contextual evidence. Appellant cites Burnett and Webb in support 

of his proposition. See Burnett v. State, 488 S.W.3d 913 (Tex. App.—Eastland 

2016), aff’d, 541 S.W.3d 77 (Tex. Crim. App. 2017); Webb v. State, No. 08-02-

00142-CR, 2003 WL 22162337 (Tex. App.—El Paso 2003, no pet.) (not designated 

for publication). 

In Burnett, the appellant was convicted of driving while intoxicated and 

unlawfully carrying a weapon. 488 S.W.3d at 916. The appellant rear-ended a 

vehicle, and the responding officer conducted a DWI investigation after the appellant 

showed signs of intoxication. See id. The arresting officer searched the appellant 

incident to his arrest, and found twenty-one pills in his jacket pocket. See id. 
22

Another officer arrived and found more pills and a pill bottle in the appellant’s 

vehicle. See id. The officers determined that the pills looked like hydrocodone. See 

id. at 917. 

The State offered evidence of the pills as same-transaction contextual 

evidence. See id. The appellant asserted that evidence of the pills would be more 

prejudicial than probative where the State had no evidence showing that the pills 

were in the appellant’s system at the time of the offense. See id. The trial court 

ruled that the evidence was admissible as same-transaction contextual evidence. See 

id. On appellate review, we concluded that:

[E]ven if Appellant’s possession of the pills was unlawful and 

constituted a separate offense, this is not a case in which the evidence 

related to the pills is necessary to the jury’s understanding of the instant 

offense. This was not a crime spree in which multiple offenses occurred 

in a short amount of time or in which one offense occurred to further 

another offense, such as committing theft in order to purchase and 

possess more drugs. This was a simple case in which the jury was 

required to determine whether Appellant was driving while intoxicated. 

We cannot say that evidence of the pills was so intertwined with the 

charged offense that it was necessary to explain the context of the DWI. 

Under the facts of this case, evidence related to the pills could only be 

necessary to the jury’s understanding of the instant offense if there was 

evidence that Appellant’s intoxication was caused from ingesting the 

pills. As we have discussed, there is no such evidence. Therefore, the 

trial court abused its discretion when it admitted the pills and evidence 

related to the pills as same[-]transaction contextual evidence. 

See id. at 920 (emphasis added).

Appellant analogizes the facts of this case to our conclusion in Burnett, 

asserting that he “was charged with five separate and distinct crimes.” He asserts 

that, simply because they “occurred one following the other, . . . does not mean that 
23

every act throughout the day constituted same-transactional contextual evidence 

admissible willy-nilly as the trial progressed.”

Appellant also distinguishes the facts of his case from the Eighth Court of 

Appeals’ opinion in Webb. 2003 WL 22162337, at *1. In Webb, officers attempted 

to arrest a man after finding drug paraphernalia and contraband in his motel room. 

Id. The man ran, got into the stolen vehicle the appellant was driving. The appellant 

drove away, instigating a high-speed chase. Id.

At trial, the appellant in Webb sought to exclude evidence that the man he had 

driven away with had drug paraphernalia and contraband in his motel room. The 

Eighth Court of Appeals held that the evidence was same-transaction contextual 

evidence because it “help[ed] explain why [the man] fled from the police and in turn, 

what may have motivated Appellant to assist [the man] and thereby commit the 

charged offense of evading arrest.” Id. at *2. The court further held that the evidence 

made it more probable that the appellant was intentionally fleeing from a police 

officer that he knew was trying to detain him, and that the appellant’s decision to aid 

the man is what ultimately led to his arrest. Id. 

According to Appellant, the challenged evidence in Webb was only 

considered part of the same transaction because it was evidence of flight. In contrast, 

Appellant asserts, the act of shooting a firearm did not show why Appellant was 

fleeing from police, nor did it “show any other rational relationship to any of the 

charged offenses.”

We construe Appellant’s case comparisons to be assertions that: (1) Appellant 

committed several complete and distinct offenses in a short period of time; and 

(2) Appellant’s act of shooting a firearm while simultaneously committing the 

offense of evading arrest in a vehicle provided no additional context as to 
24

Appellant’s reason for evading arrest or committing any other offense, rendering it 

irrelevant. However, Appellant incorrectly views his offense of evading arrest in 

isolation. While Appellant uses Burnett to assert that a separate offense committed 

simultaneously as the charged offense is not necessarily same-transaction contextual 

evidence, we specifically distinguished the facts in Burnett from a “crime spree.” 

See Burnett, 488 S.W.3d at 920. We noted in Burnett that there was no connection 

between the pills found on the appellant’s person and the underlying offense of 

driving while intoxicated. See id. 

Here, a “crime spree” is a more apt description of the numerous offenses 

comprising Appellant’s entire criminal episode, given that he “did not rest between 

incidents.” See Devoe, 354 S.W.3d at 469–70. Appellant shooting a firearm from

the vehicle window is embedded within Appellant’s crime spree, and was “part of [a]

continuing episode” of connected offenses—beginning with Appellant committing 

aggravated robbery against Miears and stealing a vehicle, and continuing when 

Appellant committed deadly conduct, aggravated assault against a public servant, 

and evading arrest or detention with a vehicle. Therefore, unlike the possession of 

pills in Burnett, the extraneous offense was a relevant piece of a “continuing course 

of conduct.” See id. at 470; Burnett, 488 S.W.3d at 920.

Further, Appellant’s act of shooting a firearm occurred during the commission 

of evading arrest or detention with a vehicle, and while he was fleeing the scene of 

the aggravated robbery. “[F]light is admissible as a circumstance from which an 

inference of guilt may be drawn.” Devoe, 354 S.W.3d at 470 (quoting Alba v. State, 

905 S.W.2d 581, 586 (Tex. Crim. App. 1995). “And if ‘the extraneous offense is 

shown to be a necessarily related circumstance of the defendant’s flight, it may be 

admitted to the jury.’” Id. Appellant’s evading arrest was not only an offense in and 
25

of itself, but also a circumstance from which Appellant’s guilt of aggravated robbery 

may be drawn. See id. And while Appellant was using a stolen vehicle to evade

arrest for the aggravated robbery, he shot a firearm from the window of the stolen 

vehicle. Therefore, Appellant shooting a firearm was “inextricably intertwined” 

with the evading and aggravated robbery offenses. See Worthy v. State, 312 S.W.3d 

34, 39 (Tex. Crim. App. 2010).

Finally, the evidence of Appellant shooting a firearm was relevant to the other 

offenses he committed because it gave context to his “crime spree” in which he 

repeatedly endangered the lives of citizens and officers. Accordingly, it was within 

the zone of reasonable disagreement to find that Appellant’s act ofshooting a firearm 

was same-transaction contextual evidence and the trial court did not abuse its 

discretion in admitting the evidence. Because the trial court did not abuse 

its discretion, there was no error, and we need not conduct a harm analysis. See 

TEX. R. APP. P. 47.1. We overrule Appellant’s third issue.

Appellant’s fourth issue is also related to the evidence of Appellant’s act of 

shooting the firearm from the vehicle. He asserts that the trial court was required to 

sua sponte give a limiting instruction under Article 37.07, Section 3(a)(1) of the 

Code of Criminal Procedure, and that by not doing so, it allowed evidence of an 

extraneous act during punishment. See CRIM. PROC. art. 37.07 § 3(a)(1). Appellant 

is incorrect in making this assertion. The Court of Criminal Appeals explicitly held 

in Devoe that “a limiting instruction is not required when evidence is admitted as 

same-transaction contextual evidence.” See Devoe, 354 S.W.3d at 471 (citing 

Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim. App. 2002); Wesbrook v. State, 

29 S.W.3d 103, 114–15 (Tex. Crim. App. 2000)). Because we have concluded that 

the trial court did not err in admitting the extraneous offense of shooting a firearm 
26

as same-transaction contextual evidence, “no instructions were required.” See id. 

We overrule Appellant’s fourth issue.

This Court’s Ruling

We affirm the judgments of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

September 26, 2024

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.