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

at Fort Worth

___________________________ No. 02

- 19

- 00095

- CR

________ ___________________

On Appeal from the 355 th D istrict Court Hood County, Texas Trial Court No. CR14016

Be fore Sudderth, C.J.; Gabriel and Wallach, JJ. Memorandum Opinion by Justice Gabriel 

### C HARLES 

### W ESLEY 

### R OOK 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury convicted Appellant Charles W esley Rook of theft under $2, 500 , elevated to a state

- jail felony du e to Rook ’ s two prior theft convictions , and fur ther el evated to a second

- degree felony due to Rook ’ s two prior felony convictions

. See Tex. Penal Cod e Ann. § § 12.425(b), 31.03 (a ), (e) (4)(D)

. The jury assessed his puni shment at twelve years ’ con finement, and the t rial court sentenced him accordingly. In a single point, Rook argues that the trial court erred by admi tting
extraneous

- offense evidence and impermissible char acter eviden ce in violation of Texas Rule of Evidence 404

. See Tex. R. Evid. 404(a), ( b). We will af

firm

. I. B ACKGROUN D Jason Gofo rth , a former Walmart asset protection associate, was working at Walmart on October 2 1, 2017

. On that da te , Goforth n oticed that Rook was sporadicall y taking merchan dise off a shelf and plac ing it into a shopping cart

. This aroused Gof

orth ’ s suspicion, s o Goforth closely mon itored Rook ’ s a ctions. 1 Goforth saw R ook walk ove r to the electronics center, “ rip ” a package of Bluetoot h earbud s from a peg hook , walk over to an empty toy aisle, and place the package into his shorts. Goforth testified that the ea rbuds had been secured to the peg hook by a

“ plastic tie ” and that a customer was supposed to ask a Walmart assoc iate t o “ unlock [the p lastic tie ] so the merchandise doesn ’ t get ripped. ”

1 Goforth testified that his job generally consist e d of walking a round Walmart in p lain c lothi ng

— to ble nd in with th e crowd

— and monitoring people ’ s ac tivities.3

After placing the earbud package into his shorts, Rook walked to th e fro nt o f the store, left his sho pping cart c onta ining merc handise near the registers , and exi ted the stor e . Goforth followed Rook out of the store and observ ed him get into the driver ’ s seat of a vehicle in an adjacent parking lot. A woman

— later identi fied as Andrea Daugherty

— w as in the passenger ’ s seat of the vehicle. The vehicle then travele d to the Walmart parking lot, stopped in fron t of the entrance, and Daug herty exited the veh icle carrying a Walmart bag. Daugherty entered the store an d proceede d to the service desk. At the service desk, s he retu rned a package of Blueto oth e arbuds without a receipt and was given a Walmart gift card totaling $108.12

— the c ost of the earbuds plus tax. Goforth testified that the pac kage of earb uds returned by Daugh erty was the same package that he s aw Rook take

. He further testified that the pac kage returned by Daugherty “ was missing part of the package where it was ripped off the shelf that matched up perfectl y with th e p eg hook that was hanging on the hook. ” Ro ok wa s arrested in the Walmart parking lot by Gran bury police. The arresting officer , Officer Kevin C lapp, testified that he found a marijuana pipe in Rook ’ s fron t pock et that smelled of m ari juana

. A photograph of the pipe was sho wn to th e jury

. The jur

y also saw Rook ’ s booking photo graph , which reflected that Rook had two lightning bolt tattoos around his right eye. Officer Clapp testifie d that the

tatto os were associated with the Aryan Brothe r hood or Aryan Circle. T he jury convicted Rook of theft und er $2,500 , and this appeal followed.4 II. ROOK ’ S EVIDENTIARY COMPLAINTS In his sole point, Rook argues that the trial co urt erre d by ad mitting evid enc e regarding the marijuana pipe found in his pocket and regarding the association between his lightning b olt tattoos and the Aryan Brotherhood and A r yan Circle

. Rook co ntends that the admission of t he evide nce regarding the marijuana pipe violated Rule 4 04 (b) ’ s g eneral pr ohibition of the use of extraneous

- offense evidence and that the adm ission of the eviden ce regarding th e association between his lightnin g bolt tatto os and the Aryan Brother hood and Aryan Ci rcle violated Rule 404(a) ’ s general pr ohi bition of the use of character evidence. See Tex. R. Evid. 404(a), (b).

A . E VIDENCE OF R OOK ’ S M ARIJUANA P IPE T o pr eserve a complaint for our review, a party must have presented to the trial

court a timely request , objection, or motion stating the specific grou nds for the desired ruling if they are not apparent from the conte xt of the request, objection, or motion. Te x. R. A pp. P. 33.1(a)(1) ; Douds v. State , 472 S.W.3d 670, 674 (Tex. Crim. A pp. 2015), cert

. denied , 136 S. Ct. 1461 (2016). A party must continue to object each time the objectionable evidence is offered

. Martinez v. State , 98 S.W.3d 189, 193 (Tex. C rim. App. 2003); Clay v. State , 361 S.W.3d 762, 766 (Tex. App.

— F ort Wo rth 2012, no pet.). Err or regar ding i mproperly admitted evidence is waived if t hat same evidence is brought in l ater without objection

— unless the evidence is brought in later

to meet, r ebut , destroy, deny , or explain the improperly admitted evidence. Taylor v. State , 264 S.W.3d 914, 91 8

– 19 (Tex. A pp.
— Fort Worth 2008, no pet.) ( mem. op.)5

(citing Rogers v. State , 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)) . Any error in the admission of ev

iden ce is cured when the same evidence comes in elsewhere without objection. Valle v. State , 109 S.W. 3d 500, 509 (Tex. Crim. App. 2003) ; Hill v. Stat e , 303 S.W.3d 863, 876 (Tex. App.

— Fort Worth 2009, pet. ref ’ d)

. Here, Rook ’ s t rial counsel initially obje cted to Officer Clapp ’ s testimony regarding finding the marijuana pipe in Rook ’ s pocket and ob jected t o the admission of the photograph of the marijua na pipe. The trial court overruled the objections. The State continued with its examination of Officer C lapp, and the following exchange occurred without objection:

Q. Looking at State ’ s Exhibit 6 here, you say this is a ma rijuana pipe? A. Yes, sir. Q. And it had the odor of burnt marijuana on it? A. Yes, sir, it did. Q. Where did you find it on the Defe ndant? A. In his fron t p o cket. It was his front right pocket. Because Officer Clapp testified, without ob j ection, that the photograph depicted a marijuana pipe found in Rook ’ s pocket that had the od or of burnt marijuana on it, any error in the trial c ourt ’ s prior admission of the photograph and any error in the a dmission of Officer Clapp ’ s prior testimony rega rdi ng the marijuana pipe was cured. See Valle , 109 S.W.3d at 509 ; Hill , 303 S.W.3d at 876 ; see als o Sampson6

v. State , No. 02

- 15

- 00202

- CR, 2016 W L 4474339 , at *3 (Tex. App.

— Fort Worth Aug. 5, 2 016, p et . ref

’ d) (mem . op., not designated for publication ) ( “ [B]ecause unobjected

- to evidence proves the sa me facts as the objected

- to photographs, we conclude that any error in admitting the photographs wa s harmless

. ” ). Accordin gly, we overrule the portion of Rook ’ s s ole point concerning the admi ssion of evidence r elating to his marijuana pipe

.

B . E VIDENCE OF R OOK ’ S G ANG T ATTOOS The trial court admitted without objection Rook ’ s booking photograph that show e d Rook ’ s lightning bolt tattoos

. The State a sked Officer Clapp if he was familiar with the m e aning of the lig htning bolt tattoos , and Officer Clapp stated that the tatto os were associated with the Aryan Brother hood or Aryan Circle. Rook ’ s trial counsel i mmediately objected to the testimon y as improper character evidence; the trial cour t overruled that obje cti on. Officer Clapp then repeated that the tattoos were

assoc iat ed with the Aryan Brotherhood or Aryan Circle, and Rook ’ s trial counsel then objected to the testimony as irrel evant. The trial co urt sustai ned the relevancy object ion , an d no other evidence regarding Rook ’ s tattoos or gang association was presented

. Assuming , without deciding , that Rook ’ s issue was p reserved for our review and there wa s error, we may not reverse the trial court ’ s judgment u nless the error aff ected Rook ’ s substantial rights. See Te x. R. App. P. 44.2(b). The erroneous admissi on of evidence is non

- constitutional error. Gonzalez v. State , 544 S.W.3d 363,7

373 (Tex. Crim. A pp. 201 8); Kennedy v. State , 1 93 S.W.3d 645 , 660 (Tex. App.

— Fort Worth 200 6, pet. ref

’ d). Non

- constitutional error requires reversal only if it affects an appellant ’ s substantial rights. Gon zalez , 544 S.W.3d at 373 (citing Tex. R. App. P. 44.2(b) ) ; Moti

l la v. S tate , 78 S .W.3d 352, 355 (Tex. Crim. App. 2002) (citing same)

. Sub stantial rights are not affected if the reviewing court has fair assurances that the erroneous exclusion of evidence had no influence or only a slight influence on the jury. Barsha w v. Sta te , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Mo tilla , 78 S. W.3d at 355. “ P ut another way, to be reversible, the jury must have been ‘ substantially swayed ’ by the improperly

- admitted evidence. ” Gillon v. State , No. 02

- 16

- 00148

- CR, 2017 WL 1738039 , at *3 (Tex. App.

— Fort Worth May 4, 2017, pet. ref ’ d ) ( mem. op.,
not designated for publication) ( quoting Hinds v. State , 970 S.W. 2d 33, 35 (Tex. App.

— Dallas 1998, no pet.)). In making this d etermination, we review the entire record, the nature of the ev i dence s upporting the verdict, the character of the a lle ged

error , and how it might be considered in conne ction with other evidence in the case. Motilla , 78 S.W.3d at 355. We may also consider the jury inst ructions, the State ’ s theor ies and defens ive theo r ies, whe ther the State emphasized the error, closing arg uments , a nd voir dire. Id

. at 355

– 56

. Based on our review of the record, there is overwhelming evidence suppo rting the jury ’ s verdict. See Motilla , 78 S.W.3d at 357; Gillon , 2017 WL 1738039, at *4. Goforth testified that he closely monitored Rook ’ s acti ons and t hat Rook “ rip ped ” the package of e arbuds off the peg hoo k , walk over to an empty aisle, an d place the8

package into his shorts. He then saw Rook walk to the front of the sto re, leav e his sho pping cart that had been filled with ot her merch andise, and exit the store. Go forth testified that he the n saw Rook walk to an adjacent parking lot, get into a vehicle with Daugherty , and drive the vehicle to Walmart ’ s parking l ot. He saw Daugherty ex it the vehicle wi th a Walmart bag, appro ach the service desk , and return a package of Bluetooth earbuds without a receipt for a Walmart gift card totaling $108.1 2

. He testified that the package of e arbud s returned by Daugherty was the same package that he sa w Roo k put down his shorts and that the package returned by Daugherty was missing part of the package that “ matched up perfe c t ly ” with the way Rook “ ripped ” the earbuds of f the peg hook. Wal mart surveill ance video was also shown to t he jury. As the v i de o was shown to the jury, Go forth explained what was occur ring in the video: Rook ’ s walking into the store from the direction of the adjacent parking lot , Rook ’ s s electing merchandise and pl ac ing it into the shopping cart , Rook ’ s taking the Bluet ooth

ear b ud s off the peg hook , Rook ’ s exitin g the store without a shopping cart , Rook ’ s walking away from Walmart tow ar ds the adjacent parking lot , Rook ’ s vehicle ’ s
enter ing the Walmart parking lot and Daugherty ’ s exit ing the veh ic l e , Dau gherty ’ s
enter ing the stor e a nd walk

ing towards the service desk , and D augherty ’ s return ing the earbu ds at the service desk

. A photog raph of the earb ud package returned by Daugherty and the receipt given to Daugherty for the return were also admitted into evidence.9

In contrast t o t he over

whel ming evid ence supporting the jury ’ s verdict , the evidence relating to Rook ’ s tattoos and their association with the Aryan Brothe rhood and Ar yan Circle was sl ight and not emphasized by the S tate . Officer Clapp stat ed that the tattoos were ass o ci ated with the Ary an Broth erhood or Ary an Circle, and following an objection that was overruled , he repeated that the tattoos were assoc iated with the A ryan B rotherhood or Aryan Circle. That is the only evidence offered or admitted during the guilt

- i nno c en ce sta ge o f Roo k ’ s trial relating to his tattoos and their assoc iation with the Aryan Brotherhood and Aryan Circle. The only other time that Rook ’ s ga ng tattoos were mentioned during the guilt

- innocence sta ge wa s duri ng the State ’ s reb uttal ar gument, w h en the State pro v

ided an explanation for why Goforth did no t try to stop Rook from leaving the store with the earbud s. The prosecu t or stated, “ You know, with all of the tattoos on his face, the Aryan brotherhood, Aryan circle tattoos on his face, I mean, w o uld you want to con front a person like that ? Of course you wouldn ’ t. ” 2 Rook ’ s trial counsel did not object to this argument and it is not the subject of a complaint on appeal. The gan g tattoos were not part of the S t ate ’ s or Rook ’ s theory o f the case , a nd they were n ot mentioned during voir dire. On this record, we cannot say that the jury must have been “ substantially swayed ” by the testimony relating to the association of Rook ’ s tatt o os and the Aryan

2 Rook ’ s trial counsel had argued during closing that Goforth “ c ould have eas ily stoppe d [Roo k] coming out of that store

. ”10

Brotherhood an d Ary an Circle . Assuming the jur y c onsidered this associatio n at all, we are persuaded that its admission had, at most, only a slight influence

— not enough to constitut e reversible error. See Motilla , 78 S.W.3d at 255. We thus hold tha t Rook ’ s substantia l rig hts were not v iolated and ho l d that any error was harmle ss. See Tex. R

. App. P. 44.2(b); Solomon , 49 S.W. 3d at 365. W e overrule the portion of Rook ’s sole point c oncerning the admi ssion of evidence relating to his gang tatto os . III. CONCLUSION Hav ing o v er ruled both portion s of Ro o k ’ s sole point, we affirm t he tri al co urt’s judgment

. /s/ Lee Gabriel Lee Gabriel Ju stice Do Not Publish Tex. R. App. P. 47.2(b) D elivered : March 5, 2020