Opinion filed February 4, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00042-CR

__________

DLIJAWON MCMARYION, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR51674

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

The grand jury indicted Appellant, Dlijawon McMaryion, for the first-degree 

felony offense of aggravated robbery, enhanced by an allegation of a prior 

conviction for felony theft. Appellant entered a plea of not guilty to the charged 

offense, and the case proceeded to a jury trial. The jury convicted Appellant of the 

lesser included offense of aggravated assault with a deadly weapon and assessed his 

punishment at twenty years’ imprisonment in the Institutional Division of the Texas 

Department of Criminal Justice. The trial court sentenced Appellant accordingly. 
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In a single issue, Appellant argues that the trial court committed reversible error 

when it admitted extraneous evidence of Appellant’s attempted escape. We affirm. 

I. Factual Background

On April 4, 2018, Appellant went to the apartment of the victim, Austin 

Haynes. Appellant and Haynes had been friends for approximately ten years. 

Witnesses presented conflicting testimony as to the reasons for the meeting;

however, Haynes ultimately suffered a gunshot wound to his left leg. Appellant fled 

the scene after the shooting. 

Officer Aaron Smith of the Midland Police Department was dispatched to the 

scene of the shooting. When he arrived at the scene, Officer Smith made contact 

with another officer who was already there. Officer Smith found Haynes lying on 

the floor just inside the doorway to the apartment, suffering from a gunshot wound 

to his left leg. During his discussion with Officer Smith, Haynes identified 

Appellant as the shooter. Law enforcement officers later found and arrested

Appellant at a different residence.

Detective Rosie Rodriguez of the Midland Police Department interviewed 

Haynes at the hospital. On the day of the shooting, Haynes and Appellant were at 

Haynes’s apartment smoking a blunt. At the time, Haynes had $800 in cash that he 

had received when he sold a vehicle. Appellant asked Haynes if he had change for 

a $100 bill. When Haynes produced the $800 from his pocket to see if he could 

make change, Appellant “pulled out the gun and pointed it to [Haynes’s] head.” 

Haynes testified that, because he refused to give Appellant the money, Appellant 

shot him in his left leg. 

Appellant testified at trial and presented a different version of events. 

Appellant testified that Haynes contacted him on April 3 via Snapchat for the 

purpose of buying marihuana from Appellant. According to Appellant, he went to 

Haynes’s apartment the next day to smoke a blunt with him. After they had smoked
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the blunt, Haynes pointed a gun at Appellant and threatened him. Appellant stated 

that a struggle over the gun ensued and that the gun discharged. Appellant fled the 

scene and went to a house on Pine Street, where the police later arrested him. 

During cross-examination, the State questioned Appellant about his guilt for 

the charged offense of aggravated robbery. In response, Appellant testified that, if 

anything, he was only guilty of “fixing to sell [Haynes] some marijuana.” Based on 

this testimony, the State requested permission to offer testimony about Appellant’s 

attempted escape from custody, during an earlier pretrial hearing, to show 

Appellant’s “consciousness of guilt.” The trial court had previously ruled during the 

State’s case-in-chief that such evidence was inadmissible because, on balance, the 

prejudicial effect of the evidence outweighed its probative value. However, because 

Appellant had testified during the State’s cross-examination that he was “completely

innocent” of the charged offense, the State contended that Appellant had “opened 

the door” to the admissibility of his attempted escape. In light of Appellant’s 

testimony, the trial court reconsidered its previous ruling, agreed with the State, and 

admitted evidence of Appellant’s escape attempt. 

II. Standard of Review – Admissibility of Evidence

In Appellant’s sole issue, he challenges the trial court’s final decision to admit 

evidence of his attempted escape. See TEX.R.EVID. 403. We review the trial court’s 

decision to admit or exclude evidence under an abuse of discretion standard. 

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Martinez v. State, 

327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Coble v. State, 330 S.W.3d 253, 272 

(Tex. Crim. App. 2010). This standard of review also applies to a trial court’s 

decision to admit or exclude extraneous-offense evidence. De La Paz v. State, 279 

S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse a trial court’s decision 

to admit or exclude evidence, and there is no abuse of discretion, unless that decision 

lies outside the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 
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478 (Tex. Crim. App. 2018); De La Paz, 279 S.W.3d at 343–44; Martin v. State, 173 

S.W.3d 463, 467 (Tex. Crim. App. 2005). Furthermore, we will uphold a trial 

court’s evidentiary ruling 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, 93 (Tex. 

Crim. App. 2016); Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim. App. 

2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.). 

III. Analysis

Appellant asserts that the trial court committed reversible error when it 

allowed the State to offer evidence of Appellant’s earlier escape attempt solely 

because Appellant professed his innocence to the charged offense during the State’s 

cross-examination. 

As we have noted, the trial court originally ruled that evidence of Appellant’s 

attempted escape was inadmissible because, on balance, the prejudicial effect of 

admission substantially outweighed any probative value. However, when 

responding to the State’s cross-examination, Appellant repeatedly asserted that he 

was innocent of the charged offense. The State then re-urged its request to offer 

evidence of Appellant’s escape attempt, claiming that, because of his testimony 

during cross-examination, Appellant had “opened the door” to the admission of this 

evidence. The State contended that the purpose in offering this evidence was to 

show Appellant’s “consciousness of guilt.” 

The trial court reconsidered its ruling and agreed with the State. The State 

proceeded to develop and elicit evidence of Appellant’s prior escape attempt. On 

appeal, Appellant contends that the trial court erred when it reconsidered its ruling 

and admitted this evidence—effectively penalizing him for professing his innocence 

to the charged offense. We disagree. 
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A. Opening the Door

We note at the outset that Appellant relies on Shipman v. State, 604 S.W.2d 

182, 185 (Tex. Crim. App. [Panel Op.] 1980), and Roberts v. State, 29 S.W.3d 596, 

601 (Tex. App.—Houston [1st Dist.] 2000, no pet.), for the proposition that the State, 

during its cross-examination, may not by its own prompting or other conduct elicit 

evidence from Appellant that would “open the door” to the admission of evidence 

that would otherwise be inadmissible. As such, because Appellant has the right to 

maintain his innocence throughout the trial, the State could not cause Appellant to 

“open the door” to the very evidence that he now claims that the trial court 

improperly admitted. Although this proposition may generally be true, the record 

before us does not support its application and refutes Appellant’s contention. 

Otherwise inadmissible evidence may be admitted if the party against whom 

the evidence is offered “opens the door.” Hayden v. State, 296 S.W.3d 549, 554 

(Tex. Crim. App. 2009). A party “opens the door” by leaving a false impression 

with the jury that invites and permits the other party to present evidence to expose, 

correct, or rebut the false impression. Id. As we noted in Kinsey, the concept of 

“opening the door” is an aspect of relevancy that can make otherwise nonrelevant 

evidence relevant. Kinsey v. State, No. 11-12-00102-CR, 2014 WL 2459690, at *11 

(Tex. App.—Eastland May 22, 2014, no pet.) (mem. op., not designated for 

publication). Furthermore, “‘[o]pening the door’ or ‘inviting’ testimony that would 

otherwise pertain to an inadmissible subject matter does not mean that such 

testimony is necessarily ‘invited’ into evidence in any form.” Kipp v. State, 876 

S.W.2d 330, 337 (Tex. Crim. App. 1994). 

Appellant argues that he was impermissibly prompted by the State during 

cross-examination into “opening the door” to the admission of evidence of his escape 

attempt. We are not persuaded. To the contrary, Appellant testified during direct 

examination and presented a competing factual version as to how Haynes was shot, 
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including an assertion of self-defense whereby he claimed that Haynes brandished 

the weapon and that the weapon was discharged during their struggle for it. 

Appellant also vehemently denied his guilt during his direct examination testimony. 

He specifically proclaimed his innocence to the charged offense of aggravated 

robbery and testified that he would have pleaded guilty to this offense if he was, in 

fact, guilty. Furthermore, during cross-examination, he repeatedly reiterated his 

claim of innocence.

We conclude that Appellant’s collective testimony provided a justifiable basis 

for the trial court to reasonably determine that Appellant had “opened the door” to 

the admission of evidence of his escape attempt. Moreover, the State was entitled 

to present evidence to clarify and rebut any false impression that Appellant’s 

testimony might have created on that matter.

B. Escape/Flight

There is another theory that supports the trial court’s decision to admit the 

evidence of Appellant’s escape attempt.

Rule 404(b) generally prohibits the admission of extraneous-offense evidence 

during the guilt/innocence phase of a trial to prove that a defendant committed the 

charged offense in conformity with bad character. Devoe v. State, 354 S.W.3d 457, 

469 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 404(b)). However, extraneousoffense evidence may be admissible for other purposes if it has relevance apart from 

character conformity. Id.; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 

2003); Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland 2014, pet. 

ref’d). 

Evidence of escape or flight is an exception to Rule 404(b)’s admissibility 

prohibition because such evidence is admissible as a circumstance from which an 

inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. 

App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); 
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Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987); Rumbaugh v. State, 

629 S.W.2d 747, 752 (Tex. Crim App. 1982); Valdez v. State, 623 S.W.2d 317, 321 

(Tex. Crim. App. [Panel Op.] 1981); Holloway v. State, 525 S.W.2d 165, 167–68 

(Tex. Crim. App. 1975). Before the evidence of escape from custody or flight is 

admissible, it must pertain to and have some legal relevance to the offense under 

prosecution. Rumbaugh, 629 S.W.2d at 752; Wockenfuss v. State, 521 S.W.2d 630, 

632 (Tex. Crim. App. 1975); Hodge v. State, 506 S.W.2d 870, 873 (Tex. Crim. App. 

1974) (op. on reh’g). Thus, to have this evidence excluded, a defendant must

affirmatively show that the escape or flight is directly connected to another 

transaction and not to the offense on trial. Wockenfuss, 521 S.W.2d at 632; Hodge, 

506 S.W.2d at 873.

Even if its admissibility is not prohibited under Rule 404(b), evidence of flight 

or escape may nonetheless be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Because 

Rule 403 favors the admissibility of relevant evidence, it is presumed that relevant 

evidence will be “more probative than prejudicial.” Montgomery v. State, 810 

S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh’g); see also De La Paz, 279 

S.W.3d at 343 & n.17. The intent of Rule 403 is not to exclude all evidence that 

tends to prejudice the opponent’s case. Davis v. State, 329 S.W.3d 798, 806 (Tex. 

Crim. App. 2010). Rather, it only prevents the admission of evidence that promotes 

a jury’s decision on an improper basis. Id.; Montgomery, 810 S.W.2d at 389. 

Therefore, we must determine how compelling or probative the evidence of escape 

is as it concerns a fact of consequence. Montgomery, 810 S.W.2d at 391. 

When performing a Rule 403 analysis, a trial court must balance: 

(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 [a] decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 
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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 repeat evidence already 

admitted.

Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (citing Gigliobianco v. 

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). Similarly, in reviewing 

the trial court’s determination of whether evidence should be excluded under 

Rule 403, we consider the above factors and balance the claimed probative force of 

the evidence with the proponent’s need for such evidence. Henley, 493 S.W.3d at 

93; Gigliobianco, 210 S.W.3d at 641–42.

In this case, Appellant claims that the trial court erred when it reconsidered its 

ruling to exclude evidence of his escape attempt because it had previously 

determined that this evidence was, on balance, too prejudicial. This argument fails. 

The trial court properly balanced the need for admitting this evidence based on the 

state of the evidence that had been presented at the time. Indeed, evidence of escape 

or flight, unlike many other extraneous offenses, shows a consciousness of guilt of 

the crime for which the defendant is on trial. See Foster, 779 S.W.2d at 859; 

Cantrell, 731 S.W.2d at 93; Rumbaugh, 629 S.W.2d at 752; Wockenfuss, 521 S.W.2d 

at 632; Hodge, 506 S.W.2d at 873. Such is the case here. Appellant’s attempt to 

escape is indicative of his consciousness of guilt of the charged offense, and the jury 

was entitled to so infer. 

Here, there is no evidence in the record that the admission of this evidence 

resulted in or suggested that the jury’s decision was made on an improper basis. 

There is no evidence that the admission of this evidence enhanced the jury’s hostility 

or sympathy for or against either party. There is no evidence that the admission of 

such evidence tended to confuse or distract the jury from ultimately deciding 

whether Appellant committed the charged offense or the lesser offense for which the 
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jury convicted Appellant. Furthermore, the admitted evidence of Appellant’s escape 

attempt was neither repetitive nor cumulative. In fact, there was, at best, only 

minimal emphasis of this evidence by the State. 

Finally, the trial court included a proper limiting instruction in the jury charge 

in which the trial court addressed the jury’s use and consideration of any extraneousoffense evidence admitted at trial so as to mitigate any potential improper 

consideration of this evidence by the jury when it was deciding Appellant’s guilt. 

When we review a trial court’s ruling on the admissibility of relevant 

evidence, we must give wide latitude to the trial court, particularly in light of the 

presumption that the probative value of relevant evidence outweighs the danger of 

unfair prejudice. Montgomery, 810 S.W.2d at 389; see De La Paz, 279 S.W.3d at 

343 & n.17. Evidence of escape from custody has greater probative value than 

prejudice and is therefore admissible to show a defendant’s guilt. Havard v. State, 

800 S.W.2d 195, 203 (Tex. Crim. App. 1989); Rumbaugh, 629 S.W.2d at 752; 

McWherter v. State, 607 S.W.2d 531, 534–35 (Tex. Crim. App. 1980). Here, 

Appellant did not dispute the evidence offered by the State of his escape attempt, 

nor did he advance any alternative or legitimate reason for his escape attempt that 

was not otherwise directly connected with the offense on trial.

IV. Conclusion

We have reviewed the record under the applicable standards of review to 

determine whether the trial court abused its discretion when it admitted evidence of 

Appellant’s escape attempt. Here, the trial court could have properly determined 

that Appellant opened the door to the admission of the evidence. Additionally, it 

was within the trial court’s discretion to determine that the probative value of the 

evidence that concerned Appellant’s escape attempt substantially outweighed any 

unfair prejudice to Appellant. The trial court properly balanced the State’s need for 

this evidence, and the record supports the trial court’s decision to admit this evidence 
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under either theory addressed above. As such, the trial court’s decision to admit 

evidence of Appellant’s escape attempt was not outside the “zone of reasonable 

disagreement.” See Bigby, 892 S.W.2d at 884. Therefore, we hold that the trial 

court did not abuse its discretion when it admitted this evidence. Accordingly, we 

overrule Appellant’s sole issue on appeal. 

V. This Court’s Ruling

We affirm the judgment of the trial court. 

W. STACY TROTTER

JUSTICE

February 4, 2021

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.