## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 17

- 00132

- CR

___________________________

On Appeal from the 367th District Court Denton County, Texas Trial Court No. F15

- 1523

- 367

Before Sudderth, C.J.; Gabriel and Pittman, JJ. Memorandum Opinion by Justice Pittman 

### C LIFFORD 

### B ELL 

### , Appellant

V



### . The State of Texas2 MEMORANDUM OPINION
In mid

- February 2015, Appellant Clifford Bell abandoned two bags of unpaid

for steaks in the vestibule between Wal

- Mart’s inner and outer doors, walke d away
before Wal

- Mart’s asset

- protection agent could talk with him, and confessed the theft to a police officer a few minutes later. Two years later, a j ury convicted him of theft
in an amount less than $1,500 , with two prior theft convictions , see Act o f May 29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3309, 3310 (amended 2015, 2017) (current version at Tex. Penal Code Ann. § 31.03 , 1 and the trial court sentenced him to two years’ confinement in state jail. See Tex. Penal Code An n. § 12. 35 ( providing that state jail felony punishment range is not more than two years or less than 180 days and up to a $10,000 fine)

. In a single point, Bell complains that the trial court erred by admitting two additional, non

- jurisdictional extraneou s prior theft convictions during the guilt

innocence phase of his trial. Bell argues that these convictions were not admissible under rule of evidence 404(b) 2 to show intent because he never raised lack of intent as

1 Former penal code section 31.03(e)(4)(D) provided that an offense was a state jail felony if the value of the stolen property was less than $1,500 and the defend ant had been previously convicted two or more times of any grade of theft. Act of May 29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. at 3310 (amended 2015, 2017). Bell stipulated to the jurisdictional prior theft convictions listed in the indictment.

2 Rule of evidence 404(b) states, in pertinent part, that evidence of a crime is not admissible to prove the conformity of a person’s character therewith but “may be admissible for another purpose, such as proving motive, opportunity, int ent,3

a defensive theory and that , contrary t o rule of evidence 403’s balancing test, 3 the y “at best[] marginally added to already voluminous evidence of intent

. ” Assuming, without deciding, that the trial court erred by admitting the two extraneous theft convictions, we conclude that on this record, any such error was harmless. See Tex. R. App. P. 44.2(b). 4 The jury heard from two Wal

- Mart asset

- protection employees and the arresting police officer, among others, and viewed the store’s surveillance footage preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Tex. R. Evid. 404(b).

3 Rule of evidence 403 states that a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403.

4 Generally, the erroneous admission of evidence is nonconstitutional error governed by rule 44.2(b) if the trial court’s ruling merely offends the rules of evidence. See Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)

. Under rule of appellate procedure 44.2(b), we disregard the error if it did not affect the appellant’s substantial rights. Id. ; see Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon , 49 S.W.3d at 365; Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State’s theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Id. at 355

– 56.4

showing Bell’s progress through the store f rom entry to exit except for the act of concealment, which occurred in the menswear department. One of the Wal

- Mart employees testified that he saw Bell walk through the menswear department

— an area frequented by shoplifters because of its lack of surveill ance cameras near the changing

rooms

— with a cart full of steaks worth $156.33 and then pull out two empty Wal

Mart bags, put the steaks in the bags, and place the bags back in the cart. Bell next headed to the front of the store, but when he arrived in th e cash register area

— an opportunity to pay for the merchandise

— he removed both bags, ditched the cart, and
walked to the other side of the store. Bell then crossed the “last point of sale,” i.e., the first set of doors, with the bags of steaks

. N o one fr om Wal

- Mart gave Bell consent to leave the store without paying for the steaks.
When Wal

- Mart’s asset

- protection employees attempted to approach Bell in the vestibule area between the first and second set of the store’s doors, he dropped the bags, told th em that he had not done anything, and walked out of the store. One of the employees called the police while the other kept his eyes on Bell from the parking lot. A nearby patrol officer responded to the call, identified Bell based on the description of h is clothing, stopped him , and asked him what happened at Wal

- Mart. Bell told her that he had “messed up” and that he had taken some steaks because he5

needed the money and was going to sell them. 5 Bell was arrested and transported to jail; when he was sea rched at the jail, police found a single penny on him and no other means to pay for the steaks. Only after all of the above evidence was admitted did the prosecutor seek and receive permission to use two of Bell’s prior theft convictions
under rule of evi dence 404(b) , arguing that Bell had put his intent into issue by trying to show that he did not have the intent to deprive Wal

- Mart of the steaks based on his dropping the bags before he left the store.
T he overwhelming evidence of Bell’s guilt set out abo ve, the lack of any
demonstrable prosecutorial mis behavior during voir dire or trial, 6 and the extraneous

offense limiting instruction in the jury charge lead us to conclude that any error in the
admission of the two extraneous offenses h ad no substantial or injurious effect on the jury’s verdict and could not have affect ed Bell ’s substantial rights. See King , 953 S.W.2d at 271. Thus, we disregard the error , s ee Tex. R. App. P. 44.2(b), overrule Bell’s single point, and affirm the trial court’s judgment.

5 The trial court denied Bell’s motion to suppress his statements made to the off icer after he told her that he messed up. Bell does not appeal the denial of his motion to suppress.

6 The prosecutor argued during closing arguments that the evidence showed beyond all doubt

— based on 90% of the offense having been caught on videotape and Bell’s admission of guilt to the officer

— that Bell had stolen steaks from Wal

- Mart by exercising control over them in the store, taking them past the cash registers without paying, and taking them into the store’s vestibule without the consent of store emp loyees. The prosecutor mentioned the extraneous offenses during the first part of his closing argument, but he spent more time emphasizing the evidence that was directly related to the instant offense.6 / s/ Mark Pittman Mark Pittman Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: January 31 , 2019