### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00326-CR

Abraham

Garcia, Appellant
v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF BE LL COUNT Y, 27TH J

UDICIAL DISTRICT NO. 50, 642, HONORAB LE MARTH

A J. TRUDO, JUDGE

PRESIDING Appellant Abraham Garcia was r eleased on bond pending trial on an indictment accusing him of burglary of a habitation. He subse quently failed to appear in accordance with the conditions of that bond. B ased on this evidence, a jury found appellant guilty of f ailing to appear and assess ed punishment, enhanced by a previous felony conviction, at imprisonment for eighteen years and a $1500 fine. See Tex. Penal Cod e Ann
. § 38. 10(a) (Wes t 1994 ). The pending burglar y indictment was introduced inevidence by the State during the guilt phase of trial. Appellant concedes that the indictment was admissible to prove that the off ense fo r which his appearance was required was a felony, and thus to establish the district court’s jurisdiction. See id
. § 38. 10(f)
. Appellant c ontends, h owever, that the court er red by admitting the enhancement paragraph of the burglar y indictment, which alleged a previous felony
c onviction for aggr avated assault with a dea dly weapon. He urges that his pr evious as saul t1 Appellant does not contend that the probative value of the evidence was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. 2 convictionwas irrelevant to the question of whether he failed to appear for the burglary trial. See Tex. R. Evid. 401, 402.

The Sta te replies that the enhancement paragr aph of the burglar y indictment was admiss ible at

th e g ui lt st ag e to sho w a

pp el la nt ’s mo ti ve

fo r fail in g t o a

pp ea r. See Tex. R. Evid. 404(b ). B ecause of his previous conviction, appellant faced a possible life sentenc e if convicted of the burglary rather than a maximu m term of twenty ye ars’ imprisonment. See Tex. Penal Code Ann. § 12. 42(b) (West Supp. 20 01). Appellant responds that the State’s argument fails in the absence of any evidence that he a ppreciated the significance of the enhancement allegation. We believe that

the possibility of an enhanced punishment upon conviction for the bu rgl ary was a fact tending to make it more probable that appellant’s failure to appear was intentional o r k nowing, even in the ab sence of pr oof that appellant h ad been told or o ther wise knew the legal significance of the enhancement allegation. 1 As a consequence , we conclude that the court did not abuse its discretion by refusing to r edact the enhancement paragraph fr om the burglary indictment be fore admitting it in evidenc e at the g

uilt stag e of appel lant’s trial. If the court did

err by o verrul in g a

pp el la nt ’s ob je ct io n, how ev er, we also conclude that the admission of

the enhancemen t par agrap h did not af fect appell ant’s substant ial r ights. See Tex. R. App. P. 44. 2(b). Dur ing jury s election, counsel for both the State and appellant emphasized

to the panelists

that appe llant’s gu

ilt of the alle ged burglary offense was irrelevant in2 The prosecutor admonished the panelists that it would be “ improper ” for them to consider whether or not appellant “ committed the other offense. ” Defense c ounsel e mphasized that the presumption of innocence attached to the alleged burglary, just as

it did to the

alleged failure to appear for which app ellant wa s on trial.
3 Appellant e xpr essly declined a j ury instr uction li miting t he jur y’s consider ation of the challenged evidence to the iss ues of motive and intent, and none was given.

3 this tri al fo r fail ing t o a

pp ea r. 2 Only three witnesses testified at the guilt stage of trial: the owner of the bail bond

company, the employee of the bond company who attempted to notify appellant of his trial setting, and the bailiff who called appellant’s name in the courthouse lobby. The only contested issue wa s whether appellant had been given adequate not ice to appear
. This was also the subject that dominated the jury arguments at the close of the guilt stage. 3 No r eference was made during ar gument to the enhancement paragr aphcontained in the burglar y indictment. Under the circumstances shown here, any err or in the admission of the enha ncement paragraph did

not have a substantial and injurious influence in determining the jur y’s guilty ve rdic t. See King v. State , 953 S
. W. 2d 266 , 271 (Te x. Crim. App. 1997)
.

Appellant’s sole issue is

overr uled and the judgment of conviction is affirmed.

__________________________________________ Lee Yeakel, Justice B efore Chief

Justice Abouss ie, Justices Yeake l and Patter son Affirm ed F iled: March 15, 2001 Do N ot Pu blish