### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00722- CR NO. 03-14-00723- CR NO. 03-14-00724- CR

Mark F ruge, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT

NOS . D-1 -DC- 13- 2002 56, D- 1-DC- 13- 2002 57, D- 1-DC- 13- 2002 59 HO NORAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Under two separ ate in dictments, Mark Fr ug e was char g ed with the offe nses of ag g rava ted assault with a deadly wea pon and ag g rava t ed robber y . See Tex. Penal Code §§ 22.01 (listing elements of assault), .02(a) (2) (spec ify ing that assault is ag g rava ted assault if person uses or exhibi ts deadly

wea pon), 29.02 (g overning crime of robber y ), .03(a )(2) (spec ify ing that robbery is ag g rava ted robber

y if defe ndant used or exhibi ted deadly wea pon). Under a third indictment, Fr ug e was charg ed with one count of attempted ca

pital murder a

nd with one count of a g g ravated assault ag ains t a p ublic serva

nt. See id. §§ 15.01(a) (deta iling when person attempts to commit offe nse), 19.02(b) (def

ining offe nse of murder) , .03(a) (1) (explaining that murder is capital murder if victim is peac e office r or firema

n), 22.01(a) , .02(a) (desc ribing assault and ag g ravated assault). The threeindictments also contained enhanc ement para g raphs alleg ing that Fr ug e had previously been convicted of

three felony

offe nses. At the end of the g uilt-or-inno ce n ce p h ase of the trial, the jury acquitted Fr ug e of the attempted-c apital-murde r char g e but found him g uilty of the three other off en s es. During the punishment phase, Frug e en t ered pleas of true for the enhanceme nt alleg ations. At the end of t he punishment phase, the jury deter mined that Fr

ug e should be imprisoned for life for eac h offe n se. See id. §§ 22.02(b)( 2)(B ) (explaining that, in g ener al, ag g ravated assault is s ec o n d -d egre e felony but is first-deg ree fe l o n y i f offe nse is committed ag ainst public serva nt), 29.03(b) (stating that ag g rava ted robber

y is first-deg ree felony

); see also id. § 12.42(d ) (ele vating punishment rang e for f elony offe nse of a

ny deg ree if defe ndant had pr eviously been convicted of two felonies) . The district court ente red its judg ment in acc ordanc e with the jury ’s deter minations. I n two issues on appea l, Fr ug e asse rt s t h at the district court err ed by “g ranting the State’s challeng e to a venire member” and by admitt i n g “evide nce of a car jacking that was

c o mm it te d a f te r ” th e o f f e n s e s in q u e s ti o n . We w il l a f

f ir m th e d is tric t c o u

r t’ s ju d g me n ts o f c o nv ic ti o n .
DISCUSSIO N Challenge to Jury P anelist

I n his first issue on appea l, Fr ug e asser ts that the district court “er red in g ranting the State’s cha lleng e for

cause ,” which de nied him “a f air a nd impartial trial.” During voir dire, the State asked the jury panel whether they thought that a case had
to be proven “bey

ond all doubt” or proven “with 100 perc ent cer tainty befor e they can find someone g uilty ,” and the panelist at issue re sponded as f ollows: 2[P anelist]: I believe t h at we ’ve been talking about incar cer ation, taking y ear s of

someone’s life that I would have to be absolutely cer tain. The level o f fa l s e convictions are incorre ct, and with convictions these day s I would fee l horrible about sending someone to prison for something tha t was doubtful.

L ater , when Fru ge wa s d iscussing rea sonable doubt with the panel, the same panelist stated as follows: “I t just kind of sounds to me like in talking about rea sonable doubt, it almost sounds to me like y ou’re try ing to prove innocenc e instead of proving g uilty

. I t just sounds backw ards to me like y o u ’ r e tr y in g to p r o v e in

n o c e n c e - - yo u ’ r e g

u il ty u n ti l p r o v e n in

n o c e n t. It ju s t s o u

n d s li k e th a

t to me . ” When the State and Fr

ug e wer e discussing which jurors should be struck, the panelist

w a s b r o u g h t b e f

o r e th e d is tric t c o u

r t a n d q u e s ti o n e d r e g a

r d in g h is p r e v io u s s ta

te me n ts

. T h a

t e xc h a n g e

occur red a s follows:
[S tate]: I know when [t he State] was questioning y ou about the burden of proof and rea sonable doubt and beyond a rea sonable doubt, y ou had made the comment that y ou would need to be 100 perc ent ce rtain. [P anelist]: Yeah. [S tate]: And y ou understand that the law is beyond a rea sonable doubt. There is actua lly -- while there is no defin i t i o n fo r b ey ond a reasonable doubt, there is case law that say s it’s not 100 perc ent cer tainty

. Would y ou be able to follow the law and listen to a case and deter

mine g uilt or innocenc e based on bey ond a rea sonable doubt, or would y ou need 100 pe rce nt cer tainty ? [P anelist]: I n my persona l be liefs, spirituality and opinion I just fee l that I ’m taking into considera

tion someone else’s livelihood, I would need to be pretty darn cer tain. [C ourt]: Okay . And when you say that, would y ou need to be 100 perc ent ce rtain? [P anelist]: Yes.

. . .

3[Frug e]: When y ou say “100 perc ent cer tain,” ar e y ou attributing that to bey ond a rea sonable doubt level o r -- I ’m n ot sure what -- beca use y ou say y ou have to be pretty confide nt. [P anelist]: I f I ’m g oing to [convict] somebody [of] a crime, then I would want to be 100 perc ent ce rtain that that cr ime was c ommitt ed bey ond a re asonable doubt.

. . . [Frug e]: The point is, are y ou g oing to hold the State to its burden, or are y ou g oing to require the State to a hig her bur den than what they ’re require d? [P anelist]: I would hold someone innocent u n t i l p ro ven g uilty , not the other way around, which to me is how it sounds with our discussion. I t sounds like people are try ing to pr ove innoce nce instea d of g uilt.

. . . [Frug e]: Are y ou g oing to require the State -- to hold the State to a highe r burden of proof than be y ond a re asonable doubt? [P anelist]: No.

After the Sta t e and Fr

ug e finished questioning the panelist, Fr ug e argued that the panelist should not be struck for cause beca use the panelist “said he would

. . . hold the State to its burden and not more,” but the district court explained that the panelist “said 100 perc ent three times,

so I ’ll g rant the State’s motion to strike for cause . I think he won’t follow the law that they ’re entitled to follow.”

On appe al, Fr

ug e urg es that the district cour t erre d when it m ade its ruling bec ause it improperly focuse d on the panelist’s use of the phrase “100 perc ent,” beca use it did not consider that the panelist only adopted the phrase “100 perc ent” afte r the State used the phrase , beca use the p anelist only used the phrase to descr ibe his persona l belief reg arding the evidenc e an d n o t t o

4descr ibe the State’s burden, beca use panelists are allowed to decide what “proof bey ond a rea sonable doubt” means for themselves, beca use panelists should not be excused “base d upon the ty pe and
amount of evidenc e they require to rea ch that level of confide nce,” and because the State did not meet its burden of

establishing that the panelist understood the la w but could not follow it. Under the Code of C ri m i n al Procedur e, a panelist may be struck for cause at the reque st of the State if the panelist “has a bias or prejudice ag ainst any phase of the law upon which the State is e ntitled to rely for conviction or punishment.” Tex. Code Crim. Proc. art. 35.16(b)( 3). Be ca u s e “the law permits a rang e of ‘re asonable doubt,’” a venire person who say s that “he wi l l hold the State to the high end of the rang e is not requiring any thing that the law does not toler ate.” Castil lo v. State , 913 S.W .2d 529, 533 (Tex. Crim. App. 1995). Howeve r, a v en i re p er son “who require s proof to a level of confide nce ‘bey ond all doubt’ is

. . . challeng eable for cause on the basis of inability to follow the law.” Id. at 533 n.1; see id. at 533-34 (explaining that if venire person rea lly does hold State to highe r burden than law allows, he should be excused for cause ); see also Coleman

v. State , 881 S.W .2d 344, 359-60 (Tex. Crim. App. 1994) (conc lu d i n g that venire person may proper ly be excused for

cause when he would hold State to burden hig her tha n bey ond rea sonable doubt and that venire person was proper ly excluded when she made statements indicating that State would have to pr ove ca se bey ond all doubt and that she would have to be 100 pe rce nt cer tain). “Bec ause the trial court is in the best position to evalua te the demea

nor o f a prospec ti v e juror, we revie w a trial court’s deter mination of a challeng e for cause only for clea r abuse of discretion.” Fierro v. State , 969 S.W .2d 51, 57 (Tex. App.—Austin 1998, no pet.). I n other words, “we reve rse ‘only when the trial judge ’s decision was so clea rly wrong as to lie outside that

5zo n e w it

h in w h ic h r e a s o n a

b le p e r s o n s mi g h t d is a g r e e . ’ ” I d

. ( q u o ti n g Ke m

p v . S ta te , 8 4 6 S. W. 2 d 2 8 9 , 297 (Tex. Crim. App. 1992)). Moreove r, a revie wing court should “ rec og nize that it is fac ed with only a cold rec ord. Perfor ce, when undertaking an abuse of discretion revie w, the juror’s bias need
not be proven with ‘unmistakable clar ity .’” Cantu v. State , 842 S.W .2d 667, 682 (Tex. Crim. App. 1992). I n addition, “[w] hen the potential juror ’s answe rs ar e vacillating , unclea r or c ontradictory , particula r defe renc e is acc orded to the trial court’ s decision.” King v. State , 29 S.W .3d 556, 568 (T ex. Crim. App. 2000); see Rachal v. State , 917 S.W .2d 799, 810 (Tex. Crim. Ap p . 1 9 9 6 ) (ex plaining that trial court’s “super ior point of view is particula rly important and deserv i n g o f our defere nce” when potential juror’s statements are unclea r). Fur th er m o re, “[w]hen revie wing a trial court’s decision to g rant or deny a challeng e for cause , we look at the entire rec ord to deter mine if there is sufficie nt ev i dence to support the court’s ruling .” Feldman v. State , 71 S.W .3d 738, 7 4 4 (Tex. Crim. App. 2002); see Fierro , 969 S.W .2d at 58 (stating that when “re vi ew i n g t h e trial court’s exercise of its discre t ion in a particula r case , we revie w the totality of the rele vant voir dire e x amination”).

As an initial matter, we note that althoug h the State used the phrase “100 perc ent

cer tainty ” befor e the panelist answe red the question about the burden of proof, the panelist did sa y that he “would have to be absolutely cer tain” when he answe red the question. Moreove r, when he

was called befor e the district court to discuss his answe r, he ag ree d that he had previously made the
comment that he woul d h av e t o be “100 perc ent cer tain” to convict. I n addition, althoug h the panelist answe red “no” when asked if he would hold the State to a higher b u rden than bey ond a

rea sonable doubt and althoug h the panelist explained that he “would want to be 100 perc ent cer tain

6that the crime was committed bey ond a rea sonable doubt,” the panelist also stated that his “per sonal

beliefs, spirituality

and opinion” would re quire him to be 100 per cent c erta in. Under the circ umstances prese nt in this case in which the panelist made contra dictory and vacillating statements reg arding the burden to which he would require the State to prove its case and in which some of

those statements demonstra ted that the panelist would require proof be y ond all doubt befor e he could convict, we cannot conclude that the district court clea rly abused its discretion by g ranting the State’s motion to strike the panelist for cause . Acc ording ly , we overr ule Fr ug e’s f irst issue on appea l. 1

I n his brief, Fr

ug e sug g ests that the exclusion of the juror is not subject to a harm analy sis 1 and that the improper exclusion, without more, war rants a reve rsal of his conviction. As support for this propositi on, Fr

ug e relies on Gray v . Mississippi , 481 U.S. 648 (1987). Althoug h we ne ed not rea ch the issue beca

use we have deter

mined that the distric t co u rt did not abuse its discretion by s t riking the panelist for cause , we do note that g iven the signific ant differ ence s betwee n this case and Gray , Fr

ug e’s relianc e on Gray seems misplaced. See id. at 652-67 (conc erning death- penalty conviction and addre ssing circ umstances in which state soug ht sy stemic exclusion by lodging challeng es for cause and pere mptory challeng es ag ainst ever y juror who expressed any uncer tainty in a bility to vote for death penalty , wher e state soug ht to challeng e additional juror who expressed no opposition to death penalty and ar gu ed that trial court had forc ed st ate to waste its pere mptory challeng es ear lier, wher e trial court remove d juror over defe nse’s objection, wher e Supreme Court deter mined that juror had been removed for cause but was not substantially impaired, and wher e S u p re m e Court rea ffirme d that this ty pe of violation of rig ht under W itherspoon is not subject t o harmless-e rror

revie w). Moreove r, the court of crimi n al ap p ea l s has explained that the holding from Gray only applies to case s in which there is an er ro neous W itherspoon exclusion and that if a “ W itherspoon err or is not at issue, the err oneous excusal of a venire member will call for reve rsal ‘only if the rec ord shows that the err or deprive d the defe ndant of a lawfully constituted jury ,’” meaning that the jurors who actua lly sat wer e not impartial. Gamboa v. State , 296 S.W .3d 574, 580 (Tex. Crim. App. 2009) (quoting Jones v. State , 982 S.W .2d 386, 394 (Tex. Crim. App. 1998)); see W itherspoon v. Illinois , 391 U.S. 510, 520-21 (1968) (dete rmining that eliminating ever y venire person who expressed any rese rvations about death pe nalty produce d jury uncommonly willing to c ondemn person to de ath). I n addition, we note that Fr ug e has made no showing on appea l and that nothin g in the rec ord demonstrates tha t the panelist’s exclusion depr ived Fr ug e of a la

wfully constituted jury

or that the 7Evid ence of Extraneous Of fense I n his se cond issue on appea l, Frug e ar g ues that the district cour t erre d by allowing the State to introduce e vidence reg arding an extraneous of fense that he alleg edly

committed. During the trial, evi d ence was prese nted indicating Fr ug e’s culpability for the crimes that he was ultimately convicted of

. I n particula

r, the e vidence showed a s follows: 2

• Abra

ham Martinez, who was an employ ee for an armore d car company , went into a store to pick up deposits.

• Whil e Mar

tinez was in the store, Fr

ug e pointed a g un at him a nd demande d the money

.

• Fr ug e later pointed a g un at the cashie r in the store, Ann Marie L ozano, or at the ca sh reg ister.

• Fr ug e pull ed the trig g er mult iple times and shot the cash regi ster, a post by the re g ister, and a

computer, w hich wer e all ver y close to L ozano.

• L ozano ducked when she saw the g un and s t ay ed behind the counter until Fr ug e lef t and eve ry one stopped scr eaming

.

• Fr ug e lef t the store and r an to the bac k of the shopping cente r.

• Offic er Roosevelt Gra nderson was in the are a, observe d Fr ug e driving awa

y from the sc ene, a

nd pursued F rug e.

jury that sat was not impartial. See Abalos v. State , No. 03-01-00351- CR, 2002 Tex. App. L EXI S 2867 , at * 4 (T ex . App.—Austin Apr. 25, 2002, pet. ref ’d) (not desig nated for publication) (over ruling issue wher e defenda nt did not alleg e and wher e record did not show that alleg ed er ror deprive d him of l awf

ul jur y ). Acc ording ly , even if we concluded that the di strict court abused i ts discretion by

striking the pa

nelist, we would be una

ble to conclude that the er ror wa s harmful. During their testimonies, some of the witnesses did not ref er to Fr ug e by name or identify 2 him. Howeve r, beca

use identity is not an i s s u e in this appea l and beca use Fr ug e was positively identified by sever al of the wit nesses and throug h DNA testing, we will ref er to the s ubject of the testimony as F rug e for

ease of re ading

. 8• Fr ug e turned onto a road behind another shopping cente r and stopped his car .

• When Office r Gra nderson g ot out of his car, F rug e starte d firing at him.

• After

Fr ug e ra n to a nea rby wooded a

rea , Offic er G rande rson pursued him.

• Offic er G rande rson ca ug ht up with Frug e and or dere d Fr ug e to stop.

• Fr ug e turned ar o u n d , shot multipl e times, and hit Offic er Gra nderson in the leg

.

• After

shooting Of

fice r Gra nderson, F rug e ra

n from the sc ene.

I n addition to t h e ev idence summarized above rela ting to the char g ed offe nses, evidenc e was introduced showing that the police sea rche d the ca

r that F rug e aba

ndoned, found a

n addre ss listed for the car afte r running a license- plate chec k and afte r seein g a mag azine in the

car with Frug e’s na

me and a ddress on it, went to the ne arby apar tment complex wit h that addre ss, discovere d Fr

ug e at the complex, apprehe nded Frug e, and found a g un as well as m oney wra pped in plastic. The evidenc e that forms the subject of Fr ug e’s second issue on appeal co ncer ns events that occur

red in the moments afte r Fr u ge shot Offic er Gra

nderson in the leg and befor e he was found in the ne arby apar tment complex. S pecif

ically , Richard Ha

rris testified that on the da y in question, Fr

ug e approa ched him as he was walking to his car ; that Fr ug e “produc ed a pistol”; that the pistol wa s aimed at the g round; that Fr ug e never pointed the pistol at him; that Fr ug e said, “we

wer e g oing for a ride” ; that Fr ug e g ot into the backse at of Har ris’s car ; that Fr

ug e told Har

ris to start driving and direc ted Har

ris; that F rug e said, “he wasn’t g oing to hurt me”; and that Fr ug e reve aled that “he had done something that he shouldn’t have” and neede d to g et out of the are a. I n addition,

9Har

ris rela ted that the incident l as t ed about fiftee n minutes and that Fr ug e g ot out of the car afte r te ll in g H a r r is to s to p . Wh e n d e s c r ib in g th e in c id e n t, H a r r is te s ti f ie d th a t F r u g e n e v e r r a is e d h is v o ic e . During Har

ris’s testimony , three photos of the are a wher e the incident occur red wer e introduced into evidenc e. Ea

rlier in the tria l, four photos of Ha rris’s c ar w ere admitted into evidence as exhibit s. On appea l, Fr

ug e asser ts that the distric t c o u

r t e r r e d b y a d mi tting evidenc e conce rning his alleg ed interac tion with Har ris. I n particula

r, Fr ug e asser ts that the evidenc e was evidenc e of an extraneous o ff

en s e and that the evidenc e had no rele vance to the issues other than to establish “c h ar ac t er confor

mity ,” which is not permitted under the Rules of Evidence

. See Tex. R. E v i d

. 404(b)( 1) (stating that evidenc e of extraneous offe nse may not be used “to prove a person’ s char acte r in order to show that on a par ticular oc casion the pe rson ac ted in acc ordanc e with the cha rac ter” ); Montgomery v. State , 810 S.W .2d 372, 387 (Tex. Crim. App. 1990) (on reh’ g ) (ex plaining that evidenc e is inadmissible if it has “no rele vance apar t from char acte r confor

mity ”). Moreove r, Fr

ug e argues that the evidenc e had no rele vance apar t from impermissibly establishing his char acter beca use the evidenc e reg arding the char g ed offe nses and re gar ding his arr est wer e “entire ly explained without the need of the extraneous” of fense evidenc e. When revie wing a trial court’s ruling on the admission of evidenc e, appellate courts

use an abuse- of-discr etion standard of revie w. Davis v. State , 329 S.W .3d 798, 803 (Tex. C ri m. App. 2010). Under that standard, a trial court’ s ruling w ill only be dee med an a

buse of discretion if it is so clea

rly wrong as to lie outside the zone of rea sonable disag ree ment, Lopez v. State , 86 S.W .3d 228, 230 (Tex. Crim. App. 2002), or is arbitra ry or unrea son ab l e, S t a t e v. Mec hler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005). Moreove r, t h e ruling wil l be upheld provided that

10the trial cour t’s decision “is reasonably supported by the record and is corr ect under any theory of law applica

ble to the ca se.” Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005). I n g ener al, Rule 404 does prohibit the admission of evidenc e of an extraneous offe nse to establish a person’ s char acte r, but the Rule also provides a non-exhaustive list of permitted uses for evidenc e of extraneous offe nses, including “proving motiv e, opportunity , intent, prepa ration, plan, knowledg e, identity , absenc e of mistake, or lack of acc ident.” Tex. R. E v i d

. 404(b)( 2). I n addition, “extraneous offe nse evidenc e may be admissible as contextual evidenc e,” Swarb v. State , 1 2 5 S. W. 3 d 6 7 2 , 6 8 1 ( T e x. A p p . — H o u s to n [1 s t D is t. ] 2 0 0 3 , p e t. d is m’ d ) , b e c a u s e ju r ie s a r e “ ‘ e n ti tl e d to know all rele vant s urrounding fac ts and circ umstances of the cha rg ed off ense; a n offe nse is not tried i n a vac uum,’” W

yatt v. State , 23 S.W .3d 18, 25 (Tex. Crim. App. 2000) (quoting Moreno v. State , 721 S.W .2d 295, 301 (Tex. Crim. App. 1986)). See also id. (explaining that “same transac tion contextual e vidence may be admissible w here ‘seve ral crimes are intermix ed, or blended with one another , or connec ted so that they form an indi v i s ible criminal transac tion, and full proof by testimony , . . ., of any one of them cannot be g iven without showing the ot hers’ ” (quoting Rogers

v. State , 853 S.W .2d 29, 33 (Tex. Crim. App. 1993)))

. “[S] ame- transac tion contextual evidenc e is admissible only when the offe nse would make littl e or no sense without also bring ing in that evidenc e.” Dev oe v. State , 354 S.W .3d 457, 469 (Tex

. C ri m . App. 2011). “[I ]f ‘the extraneous offe nse evidenc e is shown to be a nece ssarily rela ted circ umstance of the defe ndant’s flig ht, it may be admitt ed to the j ury ’” beca use evidence of “‘[f]light is admi s s i b l e as a circumstance from which an infere nce of g uilt may be drawn.’” Id. at 470 (quoting Alba v. State , 905 S.W .2d 581, 586 (Tex. Crim. App. 1995)).

11The ev i d en ce p rese nted during the trial established that Fr ug e display ed his g un and forc ed Har

ris to drive him awa

y from the shopping cente r immediately afte r he s h o t Offic er Gra nderson and that Fr

ug e did those acts in order to g et awa y from the scen es o f h i s crimes afte r attempting to ev ade the police and afte r abandoning the vehicle that he was driving

. See id. (explaining that trial court did not abuse its discretion by admitting evidenc e of extraneous offe nse in w hich defe ndant stole car during “flig ht f rom the instant of

fense as he attempted to tr avel to his mother’s home”) ; Alba , 905 S.W .2d at 586 (dete rmining that trial court did not abuse its discretion by admitting evidenc e showing that defe ndant pulled g un on individual and demande d that he drive him somewher e when evidenc e showed that extraneous offe nse occur red within one hour of murder and after defendan t h ad abandone d his own car). Acc ording ly , we must conclude that the di strict
court did not abuse its discr etion by overr uling F rug e’s objec tion unde r Rule 404 to the admission of evide nce r eg arding his encounter with Harr is. 3 I n his second issue, Fr

ug e also contends that the district court err ed by admitting the evidenc e over his objection under Rule 403 beca use the extraneous-off

ense evidenc e “wa s more prejudicia l than probative.” See Tex. R. Evi d. 403.

Under Rule 403, a trial “c ourt may exclude rele vant evidence if its proba tive value is substantial ly outweighed by a dang er of one or more of the following : unfair prejudice , confusing the issues, misleading the jury , undue delay , or needle ssly prese nting cumulative ev i d ence.” Id.

I n his br ief, Fr

ug e notes that there was no jury instruction se tting out the permissible uses 3 for extraneous-off

ense evidenc e. Although Fr ug e does not prese nt this as an i s s u e o n appea l, we note that “a limit ing instruction is not require d when evidenc e is ad mitted as same-tr ansac tion contextual evidence .” See D evoev. State , 354 S.W .3d 457, 471 (Tex. Crim. App. 2011). 12(empha sis added)

. “Unde r Rule 403, it is presumed that the prob ati ve value of rele vant evidenc e

exceeds any dang er of unfair prejudice

. The rule envisions exclusion of evidenc e only when there is a clea r disparity betwee n the deg ree of prejudice of the offe red evidenc e and its probative value.” Hamme r v. Stat e , 296 S.W .3d 555, 568 (Tex. Crim. App. 2009) (footnotes an d i n t erna l quotation marks omitted). Acc ording ly , “the plain lang uag e of Rule 403 does not allow a trial court to exclude otherwise rele vant evidenc e when that evidenc e is mere ly prejudicia l. I ndeed, all evidenc e ag ainst

a defe ndant is, by its very nature , desig ned to be prejudicia l.” Pawlak v. State , 420 S.W .3d 807, 811 (Tex. Crim. App. 2013) (interna l citation omitt ed).

When perfor

ming a 403 analy sis, courts should balance the following fac tors: (1) the inhere nt probative forc e of the proff ere d item of evidenc e along with (2) the proponent’s need for that evidenc e ag ainst (3) any tendenc y of the evidenc e to sug g est decision on an improper basis, (4) any tendenc y of the evidenc e to confuse or distract the jury from the main issues, (5) any tendenc y of the evidenc e to be g iven undue we ight by

a jury that has not bee n equipped to evaluate t he probative forc e of the evidenc e, and (6) the likelihood that prese ntation of the evide nce w ill consume an inordinate amount of time or mere ly repe at evidenc e alre ady admitted. Gigliobianco v. Sta t e , 210 S.W .3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see Davis , 329 S.W .3d at 806 (explain i n g t h at “probative value” ref ers to how strong ly evidenc e makes exis tence of fac t more or less probable and to how much proponent needs evidenc e and that “unfa ir prejudice ” ref

ers to how likely it is that evidenc e might result in decision made on improper basis, including emotional one). Although appellate courts revie w a trial court’s ruling on Rule 403 g rounds for an abuse of discretion, see Pawlak , 420 S.W .3d at 810, revie wing courts should bear in mind that trial courts are g iven “an espec ially high level of defe renc e” for Rule 403 deter minations, see U nited States v. Fields , 483 F.3d 313, 354 ( 5th Cir. 2007). 13As set out above, the evidenc e was rele vant to the issue of whether Fr ug e committed the char g ed offe nses beca use it constituted evidenc e of Fr ug e’s flig ht from the scene s of the crimes and of his intent to evade the police. I n fac t, acc ordingto Har ris’s t estimony , Fr

ug e admitt ed that he had just done something that he should not have and, for that rea son, neede d to g et out of the are a.

Reg arding the State’s need for the evidenc e, other evidenc e prese nted during the trial established that Fr

ug e committed the alleg ed crimes. Moreove r, other witnesses testified that prior
to Fr ug e finding Har

ris, Fr ug e attempted to evade the police by driving from the scene , by shooting
at the police, and by running from the police on foot. Acc ording ly , the State’s need for the evidenc e was not g reat. Although the evidence reg arding the extraneous offe nse and the extension of the criminal episode could potentially have cre ated a neg ative impression on the jury , we do not believe that the evidenc e had much, if any , tendenc y to sugges t a conviction on an improper basis. The evidenc e reg arding the char g ed offe nses demonstrated conduct that was much more serious and dang erous than the extraneous offe nse. For example, althoug h Har ris testified that Fr

ug e display ed the g un, he did not testify that Fr ug e pointed it at him or shot the g un. Moreove r, Har ris’s testimony

w a s n o t e mo ti o n a l in n a

tu r e a n d s im p ly r e la te d th e e v e n ts th a

t o c c u r r e d

. S e e G ig li o b ia n c o , 2 1 0 S. W. 3 d

a t 6 4 1 ( s ta ti n g th a t e v id e n c e mi g h t e n c o u

r a g e d e c is io n o n im

p r o p e r b a s is if it a

r o u s e s ju r y ’ s s y mp a th y

o r h o s ti li ty w it

h o ut r e g a r d to lo g ic a l p r o b a

ti v e f o r c e o f e v id e n c e )

. Si mi la

r ly , th e r e w a s n o th in g g r a

p h ic

or provoca

tive about the seven p h o t o s t h at wer e admitted as exhibi ts. I n addition, the evidenc e perta ining to the extraneous offe nse was not confusing or technica l in nature , see id. (explaining that scientific evidenc e is ty

pe of evidenc e that might mis l ea d jury not proper ly equipped to consider

14probative value) , and it helped to fill in the g ap in time betwee n when Fr ug e shot Offic er Gra

nderson and whe n Fr

ug e wa s arr ested. Finally , the evidenc e did not consume an inordinate amou n t o f time or repe at evidenc e that had already been a dmitted. Although the ex trane ous offe nse was briefly mentioned b y an o ther witness, the bulk of the evidenc e reg arding Fr ug e’s conduct betwee n the shooting of Offic er Gra

nderson and Fr

ug e’s arr est was prese nted throug h Har ris’s testimony

. I n additio n, as mentioned above, the State introduced seven photos perta ining t o t h e ex trane ous offe nse, but the State introduced hundreds of photos rela ting to the char g ed offe nses as exhibi ts. Simi larly , the g u i l t o r innocenc e phase of the trial was held over four day s and spans approximately six hundred rec ord pag es, but Har ris’s testimony is only six teen pag es long. Compare Schiele v. State , No. 01-13-00299- CR, 2015 Tex

. Ap p . L EXI S 1646, at *19-20, *21-22 (Tex. App.—Houston [1st Dist.] Fe b. 19, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (dete rmining that fac t that evidenc e in dispute spanned 50 pag es of 118-pag e rec ord and was composed of video rec ording s lasting app rox imately 30 minutes weig hed aga inst admissibili ty beca use evidence consumed “not insignifica

nt” amount of time but still finding that trial court did not abuse its discretion wher e half of f actor s releva

nt to 403 analy sis weig hed in favor of a dmissibi lity ), and McG regor v. State , 394 S.W .3d 90, 121-22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref ’d) (conc luding that fac t that evidenc e of extraneous offe nses constituted one third of trial weig hed ag ainst admissibili ty but upholding trial court’s decision to a dmit evide nce) , with Russell v. State , 113 S.W .3d 530, 544-49 (Tex. A pp.—For t Worth 2003, pet. ref

’d) (dete rmining that trial court err ed by admitting evidenc e of extraneous offe nses wher e evidenc e was 30% of testimony , wher e State’s need for evidenc e was low, and whe re e vidence of extraneous off ense w as “more heinous” than c harg ed off ense)

. 15I n light of the factors above, of our standard of revie w, and o f t h e p resumptions in

favor of admissibili ty , we cannot conclude that the district court abused its discretion by overr uling Fr ug e’s Rule 403 objec tion.

For the re asons pre viously

g iven, we ove rrule F rug e’s se cond issue on appe al.

Cleric al Error in Judgme nt

Although Fru ge d o es not raise this on appea l, we observe that the judgme nt of conviction for the ag g ravated as s au l t in trial court cause number D-1-D C-13-200257 contains

a cler ical err or. As mentioned above, the indictment for that offe nse alleg ed that Fr ug e committed ag g rava ted assault ag ainst Offic er Gr an d erson knowing that Offic er Gra nderson was a peac e office r. That offe nse is g overne d by s u b s ec t i o n 2 2 .02(b)( 2)(B ) of the Penal Code; howeve r, the judgme nt in that case ref lects that the conviction was under subsection 22.02(b)( 2)(A) of the Penal Code, which applies to ag g ravated assaults committed by a public serva nt. Compare Tex. Penal Code § 22.02(b)( 2)(B ), with id. § 22.02(b)( 2)(A)

. This Court has the authori t y t o m odify incorre ct j udg ments when it has t h e i n formation necessar y to do so. See Tex. R. App. P

. 43.2(b); B igle y v . S ta te , 8 6 5 S. W. 2 d 2 6 , 2 7

- 2 8 ( T e x. Cr im

. A p p . 1 9 9 3 )

. A c c o r d in g ly , w e mo d if y th e ju d g me n t

o f c o n v ic ti o n in c a

u s e n u m b e r D

- 1

- D C- 1 3

- 2 0 0 2 5 7 to r e f le c t th a t F r u g e w a s c o nv ic te d u

n d e r s u b s e c ti o n 22.02(b)( 2)(B ) of the Pena l Code.

CONCLUSION

Having modified the judgme nt of conviction in cause number D-1-D C-13-200257 and having overr

uled Fr ug e’s issues on appea l, we aff irm that judgme nt of conviction as modified. Having overr

uled Fr ug e’s issues on a

ppeal, we aff

irm the rema ining judg ments of conviction. 16__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland D-1-D C-13-200256: Aff irmed D-1-D C-13-200257: Modified and, a s Modified, Aff irmed D-1-D C-13-200259: Aff irmed Filed: De cembe r 3, 2015 Do Not Publish

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