NO. 07-10-0439-CR NO. 07-10-0440-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JUNE 29, 2012

__________________ ____________ DEMETRIS ANTWAN WHITE, APPELLANT V. THE STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 242 ND DISTRICT COURT OF HALE COUNTY; NOS. B18407-1005, B 18408-1005; HONORABLE ED SELF, JUDGE

__________________ _____________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION ON REHEARING
This Court originally issued an opini on on May 3, 2012. Appellant, Demetris Antwan White, filed a Motion for Reheari ng requesting that we delete Footnote 3 pertaining to the procedural hi story of this case. Having reviewed Appellant's motion and the State's response, we believe Appellant 's motion to be meritorious. Accordingly, we hereby withdraw our opinion of May 3, 2012, and substitute this opinion in lieu thereof.2 Appellant, Demetris Antwan White, was conv icted by a jury of assaulting a public
servant 1 and evading arrest/detention. 2 He was sentenced by the jury to four years confinement, suspended in favor of five years community supervision, and fined $250.00 in the assault offens e and two hundred days confi nement, not suspended, and a fine of $250.00 in the evading arrest/detention offens e. In two issues, Appellant asserts the trial court erred in (1) admitti ng extraneous offense evidence of a prior, uncharged evading arrest offense; and (2) subm itting an extraneous offense instruction to the jury at the conclusion of the guil t/innocence phase that was an improper comment on the weight of the evidence by the trial judge. We modify the judgment in Cause No. B18407-1005 to delete the order that Appellant pay $2,340.00 in court-appointed attorney's fees and affirm t hat judgment as modified, and we affirm the judgment in Cause No. B18408-1005.

B ACKGROUND
Officer Korey Ferguson of the Plainview Police Department attempted to stop a motor vehicle for a traffic offense when that vehicle suddenly sped away. Eventually the vehicle came to a stop, whereupon the driv er exited and immediatel y began running. During the foot chase that followed, the flee ing suspect grabbed a bicycle and flung it in the officer's direction, stri king him on and below the knee. At trial, Officer Ferguson testified that it was at this point that he recognized that suspect as being Appellant. The chase continued across a couple of fences and into an alley where, at some point, the suspect being pursued struck Officer Fergus on in the chest with his forearm and

1 No. B18407-1005. See Tex. Penal Code Ann. § 22.01(b) (West 2011).

2 No. B18408-1005. See Tex. Penal Code Ann. § 38.04(b)(1) (West 2011).3 avoided detention. The suspect then ent ered a residence and locked the door. The officer returned to the vehicle and identified it as being regi stered to Appellant's cousin, Stephanie White.
Both Appellant and t he State concede that the primary issue raised by the defense was the identity of the person who fled from the scene of the traffic stop and assaulted Officer Ferguson. After Appellant raised the issue of identity through crossexamination, Officer Ferguson testified on redirect that he had seen Appellant three or four times prior to the incident, had verbal c ontact with him in all but one of those prior contacts, and did not have verbal contact during that particular contact because Appellant “evaded me.” Appel lant objected to the "relev ance" of this statement, contending it was evidence of "extraneous conduct." Even though the trial court overruled those objections, Appellant did not request an immediate limit ing instruction.

E XTRANEOUS O FFENSES
In his first issue, Appellant claims t he trial court erred in admitting Officer Ferguson's statement that A ppellant had previously "evaded me" because that evidence was irrelevant, constituted an inadmissible extraneous offense, and was substantially more prejudicial than probative. See Tex. R. Evid. 401, 403 & 404(b).
Because trial courts are in the best pos ition to decide substantive admissibility questions, we review a trial court’s ruli ng under an abuse of di scretion standard. Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.A pp. 1990) (op. on reh'g); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). To obtain a reversal of a conviction based on error in the admission of evidence, an appellant must estab lish that the trial4 court’s ruling was outside the zone of reas onable disagreement and the error affected his substantial rights. Te x. R. App. P. 44.2(b); Montgomery , 810 S.W.2d at 391. As with other trial errors, to preserve an ev identiary complaint on appeal, the appellant must raise a specific complain t at trial, Tex. R. App. P. 33.1(a)(1)( A), and the appellant's point of error on appeal must compor t with his objection at trial. See Guevara v. State , 97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (holdi ng that appellant failed to preserve any error regarding admission of evidence because his objection at trial did not comport with complaint raised on appeal).
As to Appellant's Rule 401 argument, while relevant evidence is generally admissible, evidence which is not relevant is inadmissible. Te x. R. Evid. 402. Relevant evidence means evidence having any tendency to ma ke the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence. Tex. R. Evid. 401.
Here, Appellant's counsel thoroughly atta cked Officer Ferguson’s credibility by questioning his ability to ident ify Appellant while he was caught up in a chase through poorly lit areas at night. Appe llant also offered the testimony of Twila Hines, Appellant’s friend, who testified that anot her person was driving the v ehicle that Officer Ferguson attempted to stop; Neva Yarbr ough, Appellant’s girlfriend, w ho testified Appellant was in another town playing cards at the time of the incident; and Stephanie White, who testified she had no idea what Appellant was doi ng at the time of the incident, but that he never drove her vehicle. Accordingly, th e determination of the identity of the person fleeing from Officer Ferguson was a fact of significant consequence to the determination of the action. An extraneous offense may be admissible, to show the identity of the5 accused. Tex. R. Evid. 403(b) . Therefore, evidence pertaini ng to identity was relevant and the trial court's decision to deny Appellant 's objection on the ba sis of Rule 401 lies within the zone of reasonable disagreement. See Page v. State, 213 S.W.3d 332, 336 (Tex.Crim.App. 2006) (holding that evidence of an extraneous offense is relevant and may be admissible when the issue of identity has been raised by defense counsel’s cross-examination).
As to Appellant's Rule 403 argument, A ppellant did not make this argument at trial. Because his complaint on appeal does not conf orm to his complaint at trial, those arguments are waived. Wilson v. State , 71 S.W.3d 346, 349 (T ex.Crim.App. 2002); Veleta-Hernandez v. State , No. 07-10-0460-CR, 2012 Tex. App. LEXIS 3099, at *19 (Tex.App.--Amarillo April 19, 2012, no pet. h.).
As to Appellant's Rule 404(b) argumen t, Appellant contends the complained of evidence was inadmissible because the State fail ed to provide notice of its intent to use that evidence after he had made a timely request for such notice. See Hernandez v. State , 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (holding that Rule 404(b) literally conditions the admissibility of other-crime s evidence on the State's compliance with the notice provision contained t herein). Rule 404(b) st ates, in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in or der to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . identity, . . . provided t hat upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than t hat arising in the same transaction. (Emphasis added).6 Because the complained of evidence wa s not introduced during the State's casein-chief, but was instead offered in rebuttal to the defense raised by cross-examination of the State's witness, Appell ant was not entitled to notice pursuant to Rule 404(b). Jaubert v. State , 74 S.W.3d 1, 4 (Tex.Crim.App. 2002).
In addition, after reviewing the record, we have a fair assurance that even if the admission of the complained of evidence was e rror, it did not infl uence the jury or had but a slight effect and we conclude that it di d not have a substantial or injurious effect on the jury’s verdict and did not affect Appellant’s substantial rights. See King v. State , 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Accordi ngly, we further hold that any error in admitting the complained of evidence would have been harmless. Tex. R. App. P. 44.2(b). Appellant’s first issue is overruled.

J URY C HARGE
In issue two, Appellant asserts th e trial court’s limiting instruction 3 on extraneous offenses was an improper comment on the weight of the evidence. Appellate review of purported error in a jury charge involves a two-step process. Middleton v. State , 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). First, we determine whether the jury instruction

was erroneous. Id. Second, if error occurred, then an appellate court must analyze that error for harm. Id. The issue of error preservation is not relevant until harm is assessed

3 In paragraph ten of the Charge, the trial court stated: If there is any evidence before you in th is case regarding the defendant’s having committed offenses other than the offense alleg ed against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the identity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.7 because the degree of harm required for reve rsal depends on whether the error was preserved. Id.
If, as here, Appellant offe red no objections to the char ge, charge error does not require reversal unless he can show “egregious harm.” Almanza v. State , 686 S.W.2d 157, 174 (Tex.Crim.App. 1985) (op. on reh’g), reaffirmed, Middleton v. State , 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive. Taylor v. State , 332 S.W.3d 483, 489 (Tex.Cri m.App. 2011). Appellant contends he was egregiously harmed by the improper instruction because identity was the sole defense advanced by him at trial and the instruction directed the jury's attention to the complained of testimony.
First, we note that we have already f ound that the complai ned of testimony was both relevant and admissible. Secondly, “[b]ecause the c ourt used the phrases ‘if any were committed’ and ‘if any’ in the limiting inst ruction, the instruction does not constitute a comment on the weight of the evidence.” Easter v. State, 867 S.W.2d 929, 941 (Tex.App.—Waco 1993, pet. ref’d). Finding no error by the trial judge in charging the jury with the limiting instruction given in this ca se, Appellant’s second issue is overruled.

A TTORNEY ' S F EES We also note an issue not raised by Appellant regarding the assessment of attorney's fees. 4 The written judgment in Caus e No. B18407-1005 orders the defendant

4 When a defendant appeals his conviction, courts of appe als have jurisdiction to address any error in that8 to pay court-appointed attorney's fees totalin g $2,340.00. In order to assess attorney's fees in a judgment, a trial court must det ermine the defendant has financial resources that enable him to offset in part or in whole the costs of legal serv ices provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West S upp. 2011). Furthermore, the record must reflect some factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.). The reco rd in this case does not contain any evidence to support such a dete rmination. Therefore, we conclude that the order to pay attorney's fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we modify the judgment in Cause No. B18407-1005 to delete t he order that Appella nt pay $2,340.00 in court-appointed attorney's fees. Conclusion
The judgment in Cause No . B18407-1005 is modified to delete the order that Appellant pay $2,340.00 in cour t-appointed attorney's fees and we affirm that judgment as modified. The judgment in C ause No. B18408-1005 is affirmed.

Patrick A. Pirtle Justice Do not publish.

case. Pfeiffer v. State , No. PD-1234-11, ___ S.W.3d ___, 2012 Tex. Crim. App. 568, at *10 (Tex.Crim.App. April 18, 2012). Where, as here, t he error appears on the face of the judgment and does not involve the merits of the criminal trial, but in stead addresses the clerical co rrectness of the judgment, we find that the interest of justice dict ates that we address the issue.