NO. 12-21-00113-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EMMANUEL PARAMO GARCIA, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 369TH 

JUDICIAL DISTRICT COURT

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Emmanuel Paramo Garcia appeals his conviction for aggravated assault with a deadly 

weapon. In three issues, Appellant challenges the denial of his motion to suppress, contends the 

trial court created undue prejudice and commented on the weight of the evidence by serving 

popcorn to the jury in the courtroom while the jury watched a video of his custodial interrogation, 

and argues that the trial court abused its discretion by admitting testimony regarding a prior bad 

act. We affirm the trial court’s judgment.

BACKGROUND

Appellant was charged with murder. The indictment alleged that Appellant either (1) with 

intent to cause serious bodily injury to the victim, committed an act clearly dangerous to human 

life by shooting the victim, or (2) intentionally or knowingly caused the victim’s death by shooting 

the victim with a firearm.

Appellant filed a pretrial motion to suppress, in which he argued that his statements to law 

enforcement officers of Hidalgo County Sheriff’s Department, Cherokee County Sheriff’s 

Department, Texas Rangers, and any other persons acting on their behalf should be suppressed

because they were involuntary and coerced. In addition, Appellant asserted that he did not 

knowingly and intelligently waive his right to counsel, and he contended that his statements were 
2

tainted by his “illegal and unlawful detention and arrest[.]” Appellant also asserted that his 

statements were taken without the safeguards required by Article 38.22 of the Texas Code of 

Criminal Procedure, and he maintained that the admission of his statements would violate his rights 

under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, 

“Article I, Section[s] 9 and 10 of the Texas Constitution[,] and Articles 1.05 and 38.23 of the Texas 

Code of Criminal Procedure.”

At the hearing on the motion to suppress, Appellant testified that Texas Ranger Nicholas 

Castle and a detective from Cherokee County interviewed him at the Hidalgo County jail, and he 

gave a statement to them in Spanish. Appellant explained that an interpreter named Leonardo 

Quintana was also present. Appellant explained that he did not know that Quintana was a major 

crimes investigator for the Hidalgo County Sheriff’s Office. According to Appellant, Quintana 

read his Miranda warnings to him, and Appellant indicated to Quintana that he understood; 

however, Appellant testified that he did not understand some of the words. Appellant testified that 

he did not tell Quintana he did not understand. According to Appellant, Quintana did not ask 

Appellant whether he intelligently, knowingly, and voluntarily waived each right before he gave a 

statement. Appellant testified that he understood that he could have requested an attorney, but he

denied understanding that any statements he made could be used against him. Appellant stated that 

Quintana never showed him a document in Spanish that set forth his Miranda rights. 

According to Appellant, Quintana sometimes sought further explanations and asked 

additional questions about the offense. Appellant testified that the interview continued for 

approximately two hours, and he never told officers that he did not understand his rights or that he 

did not want to speak with them. Appellant testified that during his statement, the officer rose from 

his seat, hit the table with his fist, and told Appellant to stop lying. Appellant explained that he 

thought the officer was going to “grab” him, so Appellant believed he “had to tell him whatever 

he wanted to hear.” Appellant testified that Castle intimidated and frightened him by using 

profanity and loudly calling him a liar while standing up, facing toward Appellant. According to 

Appellant, Castle said that if Appellant did not tell the truth, he could go to the penitentiary for 

life. 

Quintana testified that he is a criminal investigator with the Hidalgo County Sheriff’s 

Office. Quintana explained that he brought Appellant into the interview room and read him his 

Miranda rights in Spanish verbatim from a sheet of paper provided byCastle. Quintana explained 
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that he translated for the investigating officers and also asked Appellant questions and translated 

his questions for the other officers. According to Quintana, Appellant stated that he understood his 

rights and gave a statement, and Appellant never indicated that he did not understand his rights or 

asked to end the interview. Quintana did not ask Appellant if he waived his rights before his 

statement began. Quintana testified that Appellant was sometimes preparing a response before 

Castle finished asking a question in English, so “it was evident that [Appellant] did speak some 

English or at least understood it.”

Quintana explained that none of the law enforcement officials used any force against 

Appellant or threatened to use force, and they did not coerce Appellant. Quintana testified that 

Ranger Castle accused Appellant of lying, used profanity, and struck the table, but Castle did not 

make any threatening motions. Quintana explained that Appellant changed his story after Castle

did so. According to Quintana, Castle told Appellant he would terminate the interview and walk 

out if Appellant did not tell him the truth. A video recording of Appellant’s statement was admitted 

into evidence and published to the trial court.

Castle testified that he interviewed Appellant, and Quintana assisted. According to Castle, 

Quintana warned Appellant of his Miranda rights using a form written in Spanish, and Appellant 

waived his rights and gave a voluntary statement without requesting an attorney. According to 

Castle, Quintana translated and asked questions. Castle testified that the investigating officers did 

not specifically ask Appellant whether he waived his rights. Castle explained that Appellant never 

indicated that he did not understand anything about the process. Castle testified that he questioned 

Appellant’s honesty at least twice, used profanity, and told Appellant he would end the interview 

if he did not tell the truth. Castle admitted pounding the table “to make sure that [Appellant] 

understood the severity of what we were investigating as well as [to] make the point clear to him 

that I realized there were discrepancies in the statements he was giving.” Castle explained that 

Appellant nevertheless continued with the interview, and he opined that the interview was 

voluntary in accordance with both Miranda and Article 38.22 of the Texas Code of Criminal 

Procedure.

When asked whether he disagreed with Appellant’s testimony that he did not waive his 

rights, Castle stated that he disagreed, and he testified that Appellant indicated that he understood 

his rights and “moved forward [with the interview] even when offered the opportunity several 

times that if he wasn’t going to tell the truth, we would terminate the interview, designating 
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locations, quite frankly, that he wouldn’t have had any knowledge of had he not been involved, 

and he continued to participate in the interview.” Castle denied using physical contact or force, 

and he testified that based on the totality of the circumstances, he does not believe Appellant was 

intimidated. Castle agreed that the Miranda warnings document from which Quintana read does 

not reference waiving rights. The trial court denied the motion to suppress, and the case proceeded 

to trial.

At trial, evidence showed that the victim, who was in a sexual relationship with the wife 

of Appellant’s brother, Maximino Garcia, was found dead inside a vehicle. A forensic pathologist 

testified that the victim was shot fourteen times and suffered blunt force trauma, and the cause of 

his death was multiple gunshot wounds. After a search warrant was executed at Maximino’s 

residence, the authorities recovered a steel pipe. Investigating officers became aware of another 

crime scene, where items consistent with the damage observed on the vehicle the victim was 

driving, as well as skid marks and a 9mm cartridge case, were found. Castle and a detective 

traveled to the Hidalgo County Sheriff’s Office to interview Maximino and Appellant and

requested assistance from an interpreter. Castle explained that upon attempting to question 

Maximino, Maximino requested an attorney, so the officers terminated the interview and asked to 

interview Appellant, and after being read his rights in Spanish, Appellant waived his rights and 

gave a statement. Castle testified that Maximino pleaded “guilty” to murdering the victim and was 

sentenced to fifty years of confinement.

During Castle’s testimony, the State offered the video recording of Appellant’s custodial 

interview. The trial judge stated as follows to the jury:

Ladies and gentlemen, this is a long video that we’re going to work through, so I’m going to give 

you multiple breaks during it. We’re also, since this is about as long as a movie, and I’m not joking, 

we’re literally popping popcorn right now that we’re going to bring out to kind of help you maintain 

your focus[.]

After the video played for approximately eleven minutes, defense counsel moved for a mistrial. 

Defense counsel objected, “Judge, this is my client’s murder trial. I’m going to object to popcorn 

being distributed to the jury as if we were watching a Netflix movie. I think that is just completely 

improper. I move for a mistrial right now.” The State responded, “that’s not any different than 

coffee and doughnuts being provided by the county. And, also, it wasn’t done at the time. It’s 

waived.” After stating that he was trying to help both parties by keeping the jury alert, the trial 
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judge denied the motion for mistrial. Defense counsel reiterated, “My client’s life hangs in the 

balance, and I do not want popcorn to be in this courtroom at all. Refreshments may be served 

outside, they can be served during breaks, but not during watching a confession video where a man 

was killed, and my client is talking about that.”

Castle subsequently testified that when he interviewed Jose Garcia, the brother of 

Maximino and Appellant, Jose indicated that he and Appellant had no idea that Maximino planned 

to shoot the victim. Deputy Ken McClure of the Cherokee County Sheriff’s Office testified that a 

few days before the murder, the victim called the sheriff’s office regarding two individuals who 

fired shots at his vehicle, and he identified the individuals as Maximino and Appellant. McClure 

testified that on that occasion, he arrested Appellant for criminal trespass, and he arrested 

Maximino for deadly conduct, criminal mischief, and criminal trespass. Defense counsel objected 

to McClure’s testimony under Rules 403 and 404(b) of the Texas Rules of Evidence and moved 

for a mistrial. The prosecutor argued that the evidence was admissible because it was relevant to 

“motive, plan, knowledge, intent, and under the law of parties to show [that] the defendant knew 

his brother did have a gun and had used it[.]” The trial judge overruled defense counsel’s objection 

and motion for mistrial.

Defense counsel argued in his closing that Maximino murdered the victim, pleaded guilty 

to doing so, and received a punishment of fifty years of confinement, and he conceded that 

Appellant “was there, and he beat the windshield[,]” and he drove the truck containing the victim’s 

body from the scene after Maximino told him to do so. Defense counsel also argued that Appellant 

did not harm the victim. Defense counsel argued that “[t]he only thing that I can say that my client 

has done here is aggravated assault with a deadly weapon.”

The trial court instructed the jury regarding the law of parties and conspiracy, as well as 

the lesser-included offense of aggravated assault with a deadly weapon. The jury acquitted 

Appellant of murder but found Appellant guilty of the lesser-included offense of aggravated assault 

with a deadly weapon and assessed punishment at twenty years of confinement. This appeal 

followed.

MOTION TO SUPPRESS

In issue one, Appellant challenges the denial of his motion to suppress. Specifically, 

Appellant argues that (1) he did not thoroughly understand his rights, and therefore he did not 
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knowingly, intelligently, and voluntarily waive them, and (2) his statement was involuntary 

because Castle intimidated or frightened him by standing up, pounding the table, using profanity, 

and calling him a liar.

Standard of Review and Applicable Law

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of 

review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013); Hubert v. State, 312 

S.W.3d 554, 559 (Tex. Crim. App. 2010). We give almost total deference to the trial court’s 

determination of historical facts, especially if those determinations turn on witness credibility or 

demeanor, but we review de novo the trial court’s application of the law to facts not based on an 

evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 

2008); see also Kerwick, 393 S.W.3d at 273. We must view the evidence in the light most favorable 

to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). At a hearing 

on a motion to suppress, the trial court is the exclusive trier of fact and judge of the credibility of 

the witnesses, particularly when the motion to suppress challenges the voluntariness of a 

confession. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Delao v. State, 235 

S.W.3d 235, 238 (Tex. Crim. App. 2007). Therefore, a trial court may choose to believe or to 

disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. 

App. 2000). We must uphold the trial court’s ruling on a motion to suppress if the ruling was 

supported by the record and was correct under any theory of law applicable to the case. Alford v. 

State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013); Armendariz v. State, 123 S.W.3d 401, 404 

(Tex. Crim. App. 2003). 

Before any custodial questioning, the accused must be warned that he has the right to 

remain silent, that any statement he makes may be used as evidence against him, and that he has 

the right to have an attorney present. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612,

16 L. Ed. 2d 694 (1966); Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.—Texarkana 2014, pet. 

ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2(a)(1)-(5) (West 2018). In addition, for 

an oral statement by the accused to be admissible as evidence, the accused must knowingly, 

intelligently, and voluntarily waive the rights set out in the warning. TEX. CODE CRIM. PROC. ANN.

art. 38.22 §§ 2(b), 3(a) (West 2018). The State bears the burden of establishing by a preponderance 

of the evidence that the accused knowingly, intelligently, and voluntarily waived his rights under 

Miranda and Article 38.22. Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011). An 
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accused’s waiver must be “the product of a free and deliberate choice rather than intimidation, 

coercion, or deception[,]” and it must be made “with a full awareness both of the nature of the 

right being abandoned and the consequences of the decision to abandon it.” Id. at 349 (quoting 

Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987)). A valid waiver 

can be either express or implied by the accused’s conduct; that is, “neither a written nor an oral 

express waiver is required.” Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (quoting 

Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988)). “Where the prosecution shows 

that a Miranda warning was given and that it was understood by the accused, an accused’s 

uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis v. 

Thompkins, 560 U.S. 370, 384, 130 S. Ct. 2250, 2262, 176 L. Ed. 2d 1098 (2010); Leza, 351 

S.W.3d at 354 n.33. Generally, “the law can presume that an individual who, with a full 

understanding of his or her rights, acts in a manner inconsistent with their exercise has made a 

deliberate choice to relinquish the protection those rights afford.” Berghuis, 560 U.S. at 385, 130 

S. Ct. at 2262. A trial court does not abuse its discretion if a finding of implied waiver is supported 

by the totality of the circumstances, including the background, experience, and conduct of the 

accused. Leza, 351 S.W.3d at 353; Watson, 762 S.W.2d at 601.

“A statement of an accused may be used in evidence against him if it appears that the same 

was freely and voluntarily made without compulsion or persuasion[.]” TEX. CODE CRIM. PROC.

ANN. art. 38.21 (West 2005). A statement may be deemed involuntary due to failure to comply 

with the requirements of Article 38.22 of the Texas Code of Criminal Procedure, failure to comply 

with the requirements of Miranda, or if it was not freely given due to coercion, force, or improper 

influence. Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). A confession is 

involuntary “only if there was official, coercive conduct of such a nature that any statement 

obtained thereby was unlikely to have been the product of an essentially free and unconstrained 

choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). In 

determining a statement’s voluntariness, courts must examine the totality of the surrounding 

circumstances. Delao, 235 S.W.3d at 239 (citing Arizona v. Fulminante, 499 U.S. 279, 285-86, 

111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302 (1991)); Creager v. State, 952 S.W.2d 852, 856 (Tex. 

Crim. App. 1997).
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Analysis

Both the video recording and the testimony of Castle and Quintana at the suppression 

hearing reflect that Quintana, who was in uniform, read Appellant’s Miranda rights to him before 

substantive questioning began,1 and that Appellant verbalized his understanding of those rights. In 

addition, both the video recording and the testimony reflect that Appellant was then interviewed 

for approximately two hours in a room at the Hidalgo County jail. The video recording reflects 

that Appellant was given a bottle of water during questioning, and both Castle and Quintana 

testified that Appellant never asked for an attorney or requested that the interview end. The video 

recording and the testimony of Castle and Quintana also indicate that Appellant was questioned in 

Spanish, and that Appellant never told the officers that he did not understand his rights. Although 

Appellant testified that Quintana did not show him the paper on which his Miranda rights were 

written in Spanish, the video recording reflects that the paper was on the Appellant’s side of the 

table, in front of both Quintana and Appellant, and in close proximity to Appellant. In addition, 

the video recording and testimony reflect that after verbalizing his understanding of his rights, 

Appellant proceeded to answer questions from Castle and Quintana.

Considering the totality of the circumstances, we conclude that Castle’s using profanity, 

calling Appellant a liar, and pounding on the table do not establish coercion or intimidation, and 

the record supports the trial court’s determination that Appellant’s statement was voluntary. See 

Wyatt v. State, 23 S.W.3d 18, 23-25 (Tex. Crim. App. 2000) (rejecting the defendant’s claim that 

his confession was coerced because the interrogating officers called him a liar and “talked short” 

to him); Lane v. State, No. 01-11-00055-CR, 2012 WL 1454481, at *4 (Tex. App.—Houston [1st 

Dist.] Apr. 26, 2012, no pet.) (mem. op., not designated for publication) (rejecting the defendant’s 

claim that his confession was coerced because interrogating officers called him a liar and used 

profanity); see also TEX. CODE CRIM. PROC. ANN. art. 38.21; Delao, 235 S.W.3d at 239; Creager, 

952 S.W.2d at 856. Furthermore, Appellant was verbally advised of his rights and could see his 

rights in Spanish on the form, and Appellant then proceeded to allow investigating officers to 

interview him for approximately two hours. On this record, we conclude that the trial court did not 

abuse its discretion by impliedly finding that Appellant waived his rights. See TEX. CODE CRIM.

PROC. ANN. art. 38.22; Leza, 351 S.W.3d at 349, 351. In sum, viewing the evidence in the light 

1 The video recording shows that Castle only asked Appellant his name and date of birth before Quintana 

read Appellant his Miranda rights. 
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most favorable to the trial court’s ruling and giving appropriate deference to the trial court’s role 

in judging the credibility of witnesses, we conclude that the trial court did not abuse its discretion 

by denying Appellant’s motion to suppress. See Kelly, 204 S.W.3d at 818. Accordingly, we 

overrule issue one.

SERVING POPCORN TO THE JURY IN THE COURTROOM

In issue two, Appellant argues that the trial court’s popping of popcorn and giving it to the 

jurors for consumption during publication of the video of his interrogation was unduly prejudicial 

and was tantamount to a comment on the weight of the evidence. Specifically, Appellant asserts 

that popcorn is “most commonly related to scenarios of entertainment[,]” and that by giving the 

jury popcorn during the presentation of video evidence in the courtroom, the trial court sent the 

message to the jury that the video was “something to be enjoyed and to watch as entertainment[]” 

rather than “significant evidence in [a] murder trial[.]”2

Assuming without deciding that Appellant properly preserved this issue for appeal and that 

the trial court erred by serving popcorn to the jury in the courtroom, such a non-constitutional error 

is subject to a harm analysis pursuant to Rule 44.2(b) of the Texas Rules of Appellate Procedure. 

See TEX. R. APP. P. 44.2(b) (providing that an error that does not affect a defendant’s substantial 

rights must be disregarded). A substantial right is affected when the alleged 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). We must affirm the conviction if, after examining the record as a 

whole, “we are left with the fair assurance that the [alleged] error did not influence the jury or 

influenced the jury only slightly.” Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.—Dallas 2002, 

no pet.). We must consider all the evidence, the nature of the evidence supporting the verdict, and 

2 In response, the State argues that trial courts “may provide coffee, water, doughnuts[,] and other 

refreshments[,]” and “[p]opcorn is no different.” We reject the State’s argument. Serving refreshments to jurors in the 

courtroom during the presentation of evidence is vastly different than providing refreshments in the jury room or 

elsewhere during breaks. To address concerns regarding the jury’s stamina and focus during trial, it is a far better 

practice to allow more frequent breaks and to provide refreshments to the jury outside the courtroom during those 

breaks. As the United States Supreme Court has noted in another context, it is “essential to the proper administration 

of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country[.]” Illinois 

v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1061, 25 L. Ed. 2d 353 (1970) (addressing the importance of courtroom 

dignity and decorum in the context of handling a disruptive defendant). “The courtroom’s formal dignity . . . reflects 

the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider the 

deprivation of an individual’s liberty through criminal punishment.” Deck v. Missouri, 544 U.S. 622, 631, 125 S. Ct. 

2007, 2013, 161 L. Ed. 2d 953 (2005).
10

the character of the alleged error to determine if the alleged error substantially affected Appellant’s 

rights. See id. (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).

As discussed above, the jury acquitted Appellant of murder and instead found Appellant 

guilty of the lesser-included offense of aggravated assault with a deadly weapon. Considering the 

entire record, including the nature of the evidence supporting the verdict and the nature of the 

alleged error, we have fair assurance that the serving of popcorn during publication of the video 

recording of Appellant’s interrogation did not influence the jury or influenced the jury only 

slightly, and did not affect Appellant’s substantial rights. See King, 953 S.W.2d at 271; Wilson, 

90 S.W.3d at 393-94; see also TEX. R. APP. P. 44.2(b). Accordingly, we overrule issue two.

ADMISSION OF EVIDENCE OF OTHER CRIMES

In issue three, Appellant challenges the admission of McClure’s testimony regarding his 

arrest for criminal trespass on another occasion, when Appellant was with Maximino when 

Maximino fired shots at the victim’s vehicle. Appellant argues that the admission of said evidence 

violated Rule 404(b) of the Texas Rules of Evidence.

Standard of Review and Applicable Law

We review a trial court’s admission of extraneous offenses or acts under an abuse of 

discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery 

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We must uphold the trial 

court’s ruling if it is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 

888 (Tex. Crim. App. 2002).

Rule 404(b) of the Texas Rules of Evidence provides that evidence of a crime, wrong, or 

other act is not admissible to prove a person’s character to show that the person acted in accordance 

with the character on a particular occasion, but it may be admissible for another purpose, “such as

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

lack of accident.” TEX. R. EVID. 404(b). The list of enumerated purposes for which an extraneous 

offense or act may be admissible under Rule 404(b) is neither exclusive nor exhaustive. 

Montgomery, 810 S.W.2d at 388. Evidence of extraneous acts may be admissible if it has 

relevance apart from its tendency to prove a person’s character to show that he acted in conformity 

therewith. Id. at 387. However, the fact that evidence of extraneous acts is introduced for a purpose 

other than character conformity does not, standing alone, make the evidence admissible. See Webb 
11

v. State, 36 S.W.3d 164, 180 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Proffered 

evidence must also be relevant to a fact of consequence in the case. Id. Evidence is relevant if it 

tends to make the existence of any fact of consequence more probable or less probable than it 

would be without the evidence. TEX. R. EVID. 401.

Rule 403 of the Texas Rules of Evidence provides as follows: “The 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. “Rule 403 favors admissibility of 

relevant evidence, and the presumption is that relevant evidence will be more probative than 

prejudicial.” Montgomery, 810 S.W.2d at 389. Once a trial court determines that extraneous 

offense evidence is admissible under Rule 404(b), the trial court must, upon proper objection by 

the opponent of the evidence, weigh the probative value of the evidence against its potential for 

unfair prejudice. Id.; see TEX. R. EVID. 403. A Rule 403 analysis must balance the following:

(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s 

need for that evidence against (3) any tendency of the evidence to suggest decision on an improper 

basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any 

tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate 

the probative force of the evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also Erazo v. State, 

144 S.W.3d 487, 489 (Tex. Crim. App. 2004). However, if the only value of extraneous offense 

evidence is to show character conformity, the balancing test required by Rule 403 is obviated 

because “the rulemakers hav[e] deemed that the probativeness of such evidence is so slight as to 

be ‘substantially outweighed’ by the danger of unfair prejudice as a matter of law.” Montgomery, 

810 S.W.2d at 387 (quoting United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978)). We 

will not overturn a conviction if, after examining the record as a whole, we have fair assurance 

that the allegedly erroneous admission of extraneous-offense evidence either did not influence the 

jury or had but slight effect. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).

Analysis

Based upon the record as a whole, we conclude that the extraneous offense evidence was 

relevant to show motive, intent, plan, and knowledge, and the trial court therefore did not err by 

admitting the evidence. See TEX.R. EVID. 404(b)(2); Montgomery, 810 S.W.2d at 387. In addition, 
12

we conclude that the trial court properly performed the balancing test required by Rule 403. See 

TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 641-42. Moreover, the trial court did not err by 

implicitly determining that the evidence did not tend to suggest deciding the case on an improper 

basis or confuse or distract the jury, and the evidence did not consume an inordinate amount of 

time or merely repeat previously admitted evidence. See Gigliobianco, 210 S.W.3d at 641-42.

After examining the record as a whole, we have fair assurance that the admission of extraneousoffense evidence either did not influence the jury or had but slight effect. See Taylor, 268 S.W.3d 

at 592. Accordingly, we overrule issue three.

DISPOSITION

Having overruled each of Appellant’s three issues, we affirm the trial court’s judgment.

BRIAN HOYLE

Justice

Opinion delivered August 24, 2022.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 24, 2022

NO. 12-21-00113-CR

EMMANUEL PARAMO GARCIA,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 369th District Court

of Cherokee County, Texas (Tr.Ct.No. 20427)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, 

and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that the decision be certified to the court below for 

observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.