### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00539- CR

Christopher Harris, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 15- 3017 82, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING 1

O P I N I O N

A jury convicted Christopher Har ris of the first-deg ree felony offe nse of murder and assessed punishment at life imprisonment. See Tex. Penal Code §§ 12.32(a) , 19.02(b)( 1), (c)

. The district court rende red judgme nt consistent with the jury ’s verdic t. I n three issues on appea l, Har ris contends that the district court abused its discretion by : (1) overr uling his challeng e for cause ag ainst

one venire member and declining t o gra n t Har ris an extra pere mptory challeng e to strike another venire member; (2) overr uling his objection to the admission of extraneous bad act evidenc e and preve nting him from introducing evidenc e that the bad act had been “no-billed” by a g rand jury ; and (3) overruling h i s o bjections to punishment-phase testimony from the complainant of the bad act. We will affirm the district cour t’s judgme nt of conviction.

J udg e Br enda Kenne dy presided over voir dire and the punishment phase of trial and signe d 1 the judgme nt of conviction. J udg e Wil ford Flowe rs presided over the g uilt-innocence phase of trial.BACK GR OUND 2 A jury convicted Har

ris of murdering By

ron J ames Roberson in an ea rly -morning attack at Roberson’s house. The medical examiner deter mined that Roberson sustained twenty -four stab wounds, eleve n of those to his neck and head. Har ris was one of sever al people l i v i n g in Roberson’s house at t he time. The jury hear d testimony from others who were in the hous e when the murder occur

red—Rober son’s adult son Diamond Roberson, Delphia “L iz” Whit e, Har ris, and 3 Diamond’s fr iend Rashar d Roge rs.

Har ris testified t hat he h ad b ee n renting t he li ving room of R oberson’ s house for a few mont h s an d p l an n ed to stay there temporar ily

. I n the hours befor e Roberson’s death, Har ris stated that he came h o m e from work and rela x ed in the living room, smoking marijuana , using

coca ine, play ing video g ames, and watching television. Har ris stated that two friends came to visit him but both left the house befor e midnight. Har ris also rec alled that Roge rs came to visit Diamond. Har ris testified t hat l ater that evening , another friend of Diamond’s and a man that Har ris did not know came to the front door asking for Diamond. Har ris closed the door and called Diamond, who came downstairs and opened the door bu t s aw n o one. Har ris sug g ested that Diamond che ck the ba ck door. Diamond opened the back door, looked left and rig ht, saw no one, closed the door , and hea ded bac k toward the stairs.

The fac ts are summarized from the testimony and exhibi ts admitted into evidenc e at trial. 2 For clar ity , we r efe r to the victim’s son by his first name. 3 2Har ris then stated that he watche d “in shock” as an unknown assailant —who looked 4 like Har ris, was about his heig ht, and had simil ar drea dlocks—appe are d behind Di am o nd and stabbed him in the neck with a knife. Acc ording to Har ris, the assailant ran past him and up the stairs, wher e the assailant stabbed Roge rs and Roberson. Har ris testified that he also went upstairs, opened the door to Roberson’s bedroom, and saw the assailant stabbing Roberson. Har ris stated that Roberson ran toward the bedroom door as the assailant was chasing and stabbing him from behind, and that Roberson y elled for Whit e to ca ll 911. Harris said that his left ha nd took one of the stabs intended for Roberson as the assailant ran past him. Har ris rec alled that when the assai l an t was distracted by “someone else over to the rig ht,” Roberson ran downstairs. Har ris hear d a commotion in the hallway

near the bedr ooms and Roge rs y elling. H arr is then saw Rog ers r unning dow nstairs with the assailant following him out the front door.

Har ris testified that he went to the kitchen looking for a towel for his bleeding hand, then went outside and saw the assailant attack i n g Roberson a few houses awa y . Har ris also saw Roberson fall. Har

ris testified that he chase d the assailant down the street, around a corne r, and over

a fenc e into a backy ard. There the assailant stabbed Har ris’s rig ht hand and leg and then j u m p ed

over the fenc e. Har

ris said, “as far as [he] can reme mber,” he pulled the knife out of his own leg and “blac ked out.” When he awoke, he walked throug h the gate to the police , in the direc tion of t heir vehicles’ flashing lights. Ha rris wa s no longe r we aring his shorts, t-shirt, or shoes, but he testified that he did not reme mber removing his clothing. He did not tell police about the assailant’s attacks

on him, on the ot hers at the hous e, or on Roberson down the s tree t. Har ri s ac k n o wl edged that he

This was not one of the men that Har ris said he ha d seen e arlier at the fr ont door. 4 3never : y elled for help, tried to assist Roberson or Diamond, chec ked on Whit e, or called 911. Har ris denied killing Robe rson. He a lso denied attac king Robe rson, Diamond, and Rog ers.

Diamond and Roge rs eac h testified that they wer e “positive” Har ris stabbed t h em . They also stated that Har ris’s attacks on them wer e unprovoked. Diamond testified t h at Har ris attacke d him f

rom behind, stabbing him in the neck. Diamond fell to the kitchen floor, and Har ris stabbed him ag ain in the back of the neck befor e running upstairs. Diamond was able to g et upstairs and y ell to the others to keep their doors closed beca use Har ris was stabbing people. Diamond stated that he collapse d at the top of the stair s and lost consciousness bec ause of his blood loss

. Roge rs testified that he hea rd Diamond y elling not to come out of the room, but he did any way , and he saw Diamond at the top of the sta i rs with his neck cut open. Roge rs went to R o b erson’ s bedroom where he s aw a fig ure with long drea dlocks that appea red to be H ar ri s , wh o had his arm at an angle holding something. Har ris then “ran up on” R og ers say ing, “I ’m g oing to kill all of y ou all,” and stabbed Roge rs with a knife. Roge rs sustained stab wounds to his chee k and the bac k of his head. H e ra n out the front door with Har ris in pursuit. Roge rs bega n knocking on doors for he lp. He testified that he passed out on the f ront porch of

a house due to his blood l oss. One of R o b er son’s neig hbors testified that he woke to the sound of his doorbell ring ing repe atedly at about 1:00 a.m. He opened the front door, hear d a commotion in the drivewa y , and saw blood on his f

ront porch. He closed the door and a sked his wife to c all 911. L ooking out a window towa

rd his f ront y ard, he saw a larg er man attacking another

. The ne ighbor “sawa man g o down,” and t h e attacke r ran awa y . The neig hbor found Roberson’s body in the front y ard. Severa l hours later, the neig hbor saw a man walking toward police. He rec og nized the man’s

4phy s i ca l appea ranc e as rese mbling the man who had run from his front y ard earlier that night and whom he had se en making “stabbing motions” with the victim (later identified a s Roberson).

Police rec overe d Har

ris’s bloodstained t-shirt, shorts, shoes, and a knife from another neig hbor’s backy ard. Roberson could not be excluded as a contributor of the DNA detec ted in the bloodstains on the front of Har ris’s shoe. Har

ris and Roberson could not be excluded as contributors of the DNA detec ted in the bloodstains on Har ris’s t-shirt and on the handle and blade of the knife. Police testified that hours afte r they beg an their investiga tion, Har ris walked up seeking help for the wounds to his hands. He was dresse d only in underw ear and socks. One of the office rs at the scene

rec orded he r conve rsation with H arr is, inc luding her asking him how he g ot the cuts on his hands. Har ris replied, “ I reme mber [indist inct] t his one with Diamond and this one with B y ron.” The jury hear d evidenc e, over Har ris’s objection, that Har

ris had committed a prior bad act by attacking J aime Sifuentez with a box cutter. This evidenc e was introduced to challeng e testimony from Har

ris’s mother that Har

ris was not a confr ontational person and was “usually very p ea ceful.” Har

ris soug ht to introduce evidenc e that the Sifuentez incident was “no-billed” by a g rand jury , but the district court sustained the State’s objection and excluded that evidenc e. At the conclusion of the g uilt-innocence phase of trial, the jury found Har ris g uilty of m urder and found that he used a deadly wea pon in committing the offe nse. During pun i s hment, the State called Sifuentez, who testified about the prior bad act over Har ris’s objection that Sifuentez was not on the State’s witness list. The j u ry as sessed Har ris’s punishment at life imprisonment, and the court rende red judgment on the jury ’s ver dict. Har ris filed a motion for new t rial t hat was overr uled by opera tion of law. This appe al followed.

5DISCUSSIO N

Jury selec tion I

n h is f ir s t is s u e , H a

r r is c o n te n d s th a

t th e d is tr ic t c o u

r t e r r e d b y o v e r

r u li n g h is c h a ll e n g e for cause ag ainst venire person number 28 and by declining to g rant him an extra pere mptory challeng e to strike venire person number 51. To prese rve a complaint about the trial court’s denial of a challeng e for cause , a party must show that he: (1) used all of his pere mptory strikes; (2) asked for and was ref

used additional pere mptory strikes ; an d (3) was then forc ed to take an identified, objectionable jur or whom t he party would not have otherwise acce pted had the t rial court g rante d his challeng e for cause (or had the t rial court g rante d him an additional pere mptory challeng e to strike the juror). Buntion v. State , 482 S.W .3d 58, 83 (Tex. Crim. App. 2016). Additionally , a party must show that it made the trial court awa re of that complaint “at a

time and in a manne r so that it

can be corr ecte d.” Loredo v. State , 159 S.W .3d 920, 923 (Tex. Crim. App. 2004); Redfearn v. State , No. 2-09-270- CR, 2010 Tex. App. L EXI S 7018, at *4 (Tex. App.—For t Worth Aug

. 26, 2010, pet. ref ’d) ( mem. op., not desig nated f or publication). Her e howeve r, Har

ris did not complain until afte r he had alre ady exer ci s ed his pere mptory challeng es and provided his strike list to the cler k, the cler k had called the members of the jury and the jury was s ea t ed , an d t h e court had excused the rest of the venire

. See Tex. Code Crim. Proc. arts. 35.25 (r eq u i ring parties in noncapital- felony case s, and in capital case s wher e death penalty is not soug ht, to strike from cler k’s list name s of jurors that party wants to challeng e pere mptorily ), 35.26(a) (re quiring parties to deliver their lists to cler k, who will c all names of first twelve not struck, which “shall be the jury ” in district court); McBe an v. State , 167 S.W .3d 334, 337-

638 (Tex. App.—Amar illo 2004, pet. ref ’d) (conc luding, on simil ar fac ts, that party failed to prese rve any err or in court’s denial of party ’s challeng e for cause ). Har ris’s complaint about the eff ect of the denial of the challeng e for cause and his reque st for an additional pere mptory challeng e—made only afte r the jury had been seate d and the rest of the venire had been excused—was untimely

. See Tex. Code Crim. Proc. arts. 35.25, 35.26(a) (re quiring parties to deliver their lists to cler k, who will call

n a me s o f f ir s t tw e lv e n o t s tr

u c k , w h ic h “ s h a ll b e th e ju r y ” in d is tr ic t c o u

r t) ; M c B e a n , 1 6 7 S. W. 3 d 3 3 4 , 338 n.3 (“N or does it seem to us such proce ss would acc ord fair trea tment to the opposing party who must exercise pere mptory challeng es without benef it of knowing which venire members will be on the jury .”), 339; see also Leach v. State , No. 01-04-00903- CR, 2008 Tex. App. L EXI S 6684, at *23 (Tex. App.—Houston [1st Dist.] Sept. 4, 2008, no pet.) (mem. op., not desig nated for publication).

Acc ording ly , Har

ris failed to prese rve his complaint about t he court’s ruling s as t o his challeng e for cause and his reque st for an additional pere mp t o ry challeng e. See Tex. R. App. P. 33.1(a) (1); McBe an , 167 S.W .3d at 339; see also Redfearn , 2010 Tex. App. L EXI S 7018, at *7-8; Leach , 2008 Tex. App. L EXI S 6684, at *24. We overrule H arr is’s first issue.

Evid ence c oncerning extr aneous b ad act

I n his second issue, H arr is makes two complaints : first, that the di strict court erre d by overr uling his objection to the admission of extraneous bad act evidenc e; and second, by preve nting him from introducing evidenc e that the bad act had been “no-billed” by a g rand jury

. Use of evidenc e conce rning a person’ s extraneous bad acts is set forth in Texas Rule of Evidence 404(b), which provide s that

7[e] vidence of other crimes, wrong s, or acts is not admiss ible to prove the c hara cter

of a person in order to show action in confor mity there with. I t may , howeve r, be a d mi s s ib le f o r o th e r p u

r p o s e s , s u c h a s p r o o f o f mo ti v e , o p p o r tu n it y , in te n t, p r e p a r a ti o n , plan, knowledg e, id enti ty , or absenc e of mistake or acc ident, provided that upon timel y re quest by the acc used in a criminal case , rea sonable notice is g iven in advanc e of trial of intent to introduce in the State’s case -in-chie f such evidenc e other than that ar ising in the same transac tion.

Tex. R. Evid. 404(b). We revie w a trial court’s ruling on the admissibili ty of Rule 404(b) evidenc e under an abuse- of-discr etion standard. Dabney v. State , 492 S.W .3d 309, 318 (Tex. Crim. App. 2016). The trial court does not abuse its discretion unless its deter mination l i es outside the zone of rea sonable disag ree ment. Gonzalez v. State , 544 S.W .3d 363, 370 (Tex. Crim. App. 2018); see Dabney , 492 S.W .3d at 318.

Be fore trial, the State provided notice of its intent to pr esent the jury with e vidence about an e x trane ous bad ac t. See Tex. R. Evi d. 404(b). Dur ing the g uilt-innocence phase of trial, Har ris’s mother L aura Z avala testified on direc t examination for the defe nse that Harri s i s not a confr ontational person and that he “is usually very peac eful.” After a hear ing outside the prese nce of the jury , the district court allowed the State to ask Z avala whether s h e wa s aw ar e that Har ris attacke d a person named J aime S ifuentez with a box cutter and whether having that information would chang e her

opinion of Harr is:

Prosecutor: Good morning

. On direc t examination y ou testified that y ou

h ad the opinion that y our son Christopher Har ris had the char acte r of pe ace fulness; is that corre ct? Z avala : Yes. Prosecutor: And y ou also testified that y ou wer e of the opinion that he

was non-c onfrontational?

8Z avala : Yes.

Prosecutor: Are y ou aware of the fac t that y our son Christopher Har ris attacke d a J aime S ifuentez on October 24, 2 0 1 4 , wi th a box cutter? Z avala : No. Prosecutor: I f y ou wer e to lear n that he—y our son Christopher Har ris attac k ed J aime Sifuentez with a box cutter on October 24, 2014, would that chang e y our opi n i o n t h at y our son is a peac eful pe rson? Z avala : No. Prosecutor: And if y o u had that information that he attacke d J aime

Sifuentez with a box cutter, w ould that chang e y our opi nion that he is a non-c onfrontational pe rson? Z avala : No. Prosecutor: Pass the witness, Your Honor

.

On re direc t, Z avala

acknow ledg ed knowing

that Har ris had bee n char g ed in that incident:

Def ense c ounsel: Ms. Z avala , the case that the State i s re fe rr i n g t o , y ou’re

awa re that that case was prese nted t o a gra nd jury and the g rand jury

— Prosecutor: Objection, Your Honor. The Court: Sustained.

. . . . Def ense c ounsel: Were y ou awa re tha t Chris was char g ed in that incident? Z avala : Yes.

9Def ense counsel: And what was y our understanding as to the end result of that

char g e? Prosecutor: Objection. The Court: Sustained.

The court’s char g e at the conclusion of the g uilt-innoc ence phase of trial provided the following instruction to the jury

about Z avala ’s testimony :

You are instructed that if there is evidenc e befor e y ou to the eff ect that L aura Z avala , a witness for the defe ndant, had hear d about o t h er offe nses on the part of the defe ndant, if any , then such evidenc e may only be considere d by y ou if y ou consider it at all for the purpose of testing, if it does, the knowledg e of L aura Z avala as to the defe ndant’s reputation and the weig ht to be g iven to their t estimony , and y ou must not consider suc h evidenc e for any other purpose

.

1. Adm ission of extraneous bad act e vidence Har ris contends that the district court err ed by overr uling his objection to the admission of extra n eo u s bad act evidenc e involving Sifuentez. Under Rules 404 and 405 of the Texas Rules of Evidence , if the defe ndant offe rs evidenc e of his g ood char acte r, the prosec ution can introduce its own char acte r evidenc e to rebut the implications of the defe ndant’s char acte r evidenc e. Harrison v. State , 241 S.W .3d 23, 27 (Tex. Crim. App. 2007); W ilson v. State , 71 S.W .3d 346, 350 (Tex. Crim. App. 2002); see Tex. R. Evid. 404(a) (2)( A) (providing that “[i] n a criminal case , a defe ndant may offe r evidenc e of the defe ndant’s pertinent trait, and if the evidenc e is admitted, the prosec ution may offe r evidenc e to rebut it”), 405(a) (2)( B) (providing that “[w ] h en a person’ s char acte r or char acte r trait is an essential element of a char g e, claim, or defe nse, the char acte r or trait may also be proved by rele vant specific instan ce s o f t h e person’ s conduct” ). “The purpose of

10permitting [charac ter witness] cross-e x amination is not to discredit the person whose char acte r is in

issue, but rather

to discredit the testimony of the c hara cter

witness.” Harrison , 241 S.W .3d at 25. Cross-examination rebuttal evidenc e may be elicited in the form of “have y ou hear d” or “we re y ou

awa re” questions about specific instances of conduct inconsistent with the char acte r trait broug ht into issue. Id

. Her e, Har

ris has not shown that the district court abused its discretion by overr uling his objection to the State asking Z avala —afte r she testified that Har ri s wa s not a confr ontational person an d t h at he “is usually very peac eful” —whether she was awa re that he attacked Si fuente z. See id. at 27 (conc luding that trial court did not abuse its discretion by allowing prosec ution to rebut char acte r eviden ce

— i ntroduce d by defe nse witness who testified that defe ndant was “g ood” and “swe et” person—with evidenc e of defe ndant’s prior assault convictions and citations); s ee also Gonzalez , 544 S.W .3d at 370.

Howeve r, even whe n e v id e n ce of an extraneous bad act is admissible under Rules 404 and 4 0 5 , i t m ay b e ex cluded as unfairly prejudicia l under Rule 403. During a hearing outside the prese nce of the jury , Har

ris objected that allowing the State to question Z avala about the extraneous bad act would violate Rule 403 “bec ause of simil ar acc usations in that case to this one,” which would be “unduly

prejudicia l to the jury

and would influenc e the jury in the incorre ct manner .” Texas Rule of Evidenc e 403 provide s that even rele vant evidenc e may be excluded if its probative value is substantially outweig hed by the dange r of unfair prejudice , confusion of the issues, or misleading the jury ; by considerations of undue delay ; or by needle ss pr esenta tion of cumulative evidenc e. See Tex. R. Evid. 403. When conducting a Rule 403 analy sis, the trial court must balanc e: (1) the inhere nt probative for ce of the proff ere d item of evidenc e along with (2) the

11proponent’s need for that evidenc e ag ainst (3) any tendenc y of the evidenc e to sug g est decision on

an improper basis, (4) any t en d en cy of the evidenc e to confuse or distract the jury from the main issues, (5) any tendenc y of the evidenc e to be g iven u n d u e we i gh t by a jury that has not been equipped to evalua te the probative forc e of the evidenc e, and (6) the likelihood that prese ntation of the evidenc e will consume an inordinate amount of time or mere ly repe at evidenc e alre ady admitted. Gigliobianco v. State , 210 S.W .3d 637, 641-42 (Te x . Crim. App. 2006) . These f actor s may

blend toge ther in pra ctice. Id . at 642.

Her e, Z avala o ff

er ed the jury her opinion that Har ris was a peac eful and noncon fr o n t at ional person. The jury had hear d simil ar testimony from Whit e, althoug h she admitted that she did not know him well. The district court could have conclude d that the State neede d to ask Z avala whether she was awa re of the incident involving Sifuentez to test how well she knew him and the cre dibilit y of her opinion if she knew about conduct inconsistent with the traits about which she testified. See W

ilson , 71 S.W .3d at 350 n.4. The district c ourt’s limiti ng instruction in the char g e about Z avala ’s testimony minimi zed any risk that the jury would consider the substance of her questioning for any improper purpose or g ive it undue weig ht. See Taylor v. State , 332 S.W .3d 483, 4 9 2 (T ex. Crim. App. 2011) (noting that jury is presumed to have understood and followed tr i al court’s jury -cha

rg e instructions absent evidenc e to the contra ry ); Lane v. State , 933 S.W .2d 504, 520 (Tex. Crim. App. 1996) (noting that impermissible i n fe re n ce of char acte r confor mity can be minimi zed throug h limit ing instruction). The incident Z avala was asked about was not confusing or t ech nical in nature and would not tend t o mislead the j ury , which weighs in favor of admiss ion of the evidenc e. See Gigliobianco , 210 S.W .3d at 641 (noting that scientific evidenc e is of ty pe that

12“mig ht mislead a jury that is not properly equipped to judg e the pr obative for ce of the evidence” ). To the ex tent Har

ris compl ains that the j ury was mi sled about criminal char g es resulting from the Sifuentez incident, we note that the defe nse—and not the State—was the source of that information during Z avala ’s questioning on redire ct. Finally , the court could have rea sonably deter mined, based

on the hearing outside the pre sence of the jury befor e Z avala

testified, that t he S tate’s questioning of Z avala about the Sifuentez incident would not consume an inordinate amount of time and would not be repe titive of evidenc e alre ady admitted. I n fac t, the jury hear d only three questions about the Sifuentez incident during the State’s cross-e x amination. Acc ording ly , Har ris has not shown that the district court abused its discretion by implicitl y deter mining that the balanc e of the Rule 403 fac tors favor ed allowing the State’s questioning of Z avala about the extraneous bad act. See id

. at 641-42.

2. Exclusion of evid ence of no-bill Wit hin his second issu e, Har ris also complains that the district court abused its discretion by

excluding evide nce tha t a g rand jury had “no-billed” hi m as t o the S ifuentez assault. Har ris contends that beca

use the assault resulted in a no-bill, the assault did not qualify for admission

as an extraneous b ad act under Rule 404(b). He further contends that allowing evidenc e of that assault—without also admitting evidenc e of the no-bill—violated Rule 403 beca use its probative value was g rea tly outweig hed by its potential prejudic e an d gave the jury the misim pression that Har ris had bee n char g ed with an of fense for stabbing

Sifuentez with a box cutter. A gra nd jury has t he duty to deter mine whether evidenc e ex is t s t o fo rm ally char g e

a p e r s o n w it

h a n o f f e n s e . S e e R a c h a l v . S

ta te , 9 1 7 S. W. 2 d 7 9 9 , 8 0 7 ( T e x. Cr im

. A p p . 1 9 9 6 )

. A n o - b il l from a g rand jury is mere ly a finding that the specific evidenc e broug ht befor e that particula r g rand

13jury

did not convince them to for mally char g e the a ccuse d with the offe nse alleg ed. Id .; see Elam

v. State , 47 S.W .2d 279, 279-80 (Tex. Crim. App. 1932) (conc luding that admission of g rand jury ’s no-bill for prior al t er cation betwee n victim and defe ndant improperly prese nted jury with g rand jury ’s opinion as t o m er i t s o f disputed issue, i.e., whether defe ndant was ag g ressor and acte d in self-de fense ). Fur

thermore , there was no need to corr ect a “misimpression” about the assault when

as here , the State was not attempting to prove to the jury that Har ris committed the extraneous bad act, but only testing the weig ht of char acte r testimony from Z avala

. See W ilson , 71 S.W .3d at 351 & nn.5-6 (citing commentar y to Fe dera l Rule of Evidence 405(a) —which is near ly identical to Texas Rule of Evidence 405(a) —and noting that beca use purpose of State’s questions was to test witness’s familiarity with defe ndant, “not only was the State not require d to prove to the jury that the acts actua lly occur

red, but it would have been improper for the State to attempt to do so”); Drone v. State , 906 S.W .2d 608, 616 (Tex. App.—Austin 1995, pet. ref’d) ( noting State’ s questioning of defe nse wi t ness about defe ndant’s involvement in prior stabbing and assault was not attempt to prove his g uilt of such unadjudicate d offe nses but to test weig ht of char acte r testimony from defe nse witness). Acc ording ly , Har

ris has not shown that the district court’s ruling excluding evidenc e of the no-bill was outside the zone of r easona ble disag ree ment. See G onzalez , 544 S.W .3d at 370. Even if we wer e to assume that the court err ed by excluding evidenc e that a g rand jury had “no-billed” Har

ris for the Sifuentez assault, Har ris has not demonstrated harm r e q u ir in g reve rsal. See Tex. R. App. P . 44.2(b) ( providing that nonconstitutional e rror that does not aff ect substantial rig hts must be disreg arde d); Schmutz v. State , 440 S.W .3d 29, 39 (Tex

. C ri m. App. 2014) (“A

14substantial rig ht is aff ecte d when the err or had a substant i al an d i n jurious eff

ect or influence in deter mining the jury ’s verdic t.”). I n deter mining the likelihood that an err or ad v er s el y af fec ted a ju r y ’ s d e c is io n , w e c o n s id e r e v e r y th in g in th e r e c o r d

. S

c h m u tz , 4 4 0 S. W. 3 d a

t 3 9

. Si g n if

ic a n t f a c to r s include the nature of the evidenc e supporting the verdic t, the char acte r of the alleg ed err or, and how it mig ht be considere d in c onnection with othe r evidenc e in the case , and may include whether the State emphasized the er

ror a nd whether

there was ove rwhe lming evide nce of g uilt. Id

. Her e, the State’s questioning of Z avala did not result in the admission of substantive evidenc e reg arding the S ifuentez incident, and afte r Zava la d en i ed awa rene ss of t hat i ncident, the State did not ref

er to it ag ain during the g uilt-innocence phase. The jury had strong proof of Har ris’s g uilt in this case , including testimony from Diamond, Roge rs, and the neighbor who witnessed Roberson’s attack, as well as corr oborating DNA evidenc e on Ha rris’s bloodstained shoe, t-shirt, and the handle and blade of the knife. Thus, if there wer e any err or in the court’s evidentiar y ruling beca use o f a m i simpression from the exclusion of Har ris’s no bill, considering ever y thing in this

rec ord , i t i s u nlikely that the jury ’s decision was adver sely aff ecte d by such err or. See id. We

overr ule Har ris’s sec ond issue.

P uni shme nt-phase testim ony f rom person not on S tate ’s witn ess list I n his third issue, Har

ris contends that the district court err ed by overr uling his objection t o punishment-phase testimony from S ifuentez, who was not on the State’s wit ness l ist. Har ris asser ts that Sifuente z g ave unfairly prejudicia l te stimony and that the State’ s nondisclosure of Sifuentez as a witness preve nted Har ris from adequately prepa ring for sentenc ing. We revie w a trial court’ s decision to allow testimony from a pe rson who is not on the State’s witness list under

15an abuse- of-discr etion standard. W ood v. State , 18 S.W .3d 642, 649 (Tex. Crim. App. 2000); Hightower v. State , 629 S.W .2d 920, 925 (Tex. Crim. App. 1981); Rainey v. State , 949 S.W .2d 537, 544 (Tex. App.—Austin 1997, pet. ref ’d). When a trial court allows testimony from a witness who does not appea

r on the State’s witness list, we consider whether the prosec utor’s actions constituted b ad fa i t h and whether the defe ndant could have rea sonably anticipated that the witness wou l d have testified despite the lack of notice. W ood , 18 S.W .3d at 649; Hightower , 629 S.W .2d at 925; Rainey , 949 S.W .2d at 544.

1. Reasonable anticipation that Sif uentez would test if

y durin g pun ishme nt Her e, Har ri s d o es not contend that the State acte d in bad faith; rathe r, he contends that he “had no way of knowing that Mr. Sifuentez would testify at trial.” We disag ree . As Har ris acknow ledg es (and conce ded at trial), the State: (1) g ave notice of its intention to introduce evidenc e of th e p r ior assault ag ainst Sifuentez; (2) provided Har ris with an offe nse repor

t identify ing Sifuentez

as the complainant in that assault; and (3) provided Har ris with Sifuentez’s cri m i nal history in response to Har

ris’s “Motion for Discover y of t h e Arre st and Conviction Records of State’s Wit nesses.” Under these ci rc u m s t an ces, Har ris could have rea sonably anticipated that the State would call Sifuentez as a witness. See, e.g. , Lemasurier v. State , 91 S

. W .3d 897, 900-01 (Tex. App.—For

t Worth 2002, pet. ref

’d) (conc lud i n g t h at counsel should have rea sonably anticipated wi t n es s ’s testimony when witness’s repor t had been part of prosec ution’s file and counsel was

awa re of repor

t throug h his own revie w of that file); s ee a l s o F o x v. State , No. 04-15-00618- CR, 2017 Tex. App. L EXI S 150, at *7 (Tex. App.—San Antonio J an. 11, 2017, no pet.) (mem. op., not desig nated for publication) (conc luding that defe ndant could have rea sonably anticipated that State

16would call individuals listed in offe nse repor t provided to d efense in discovery ); Garcia v. State , No. 04-00-00005- CR, 2001 Tex. App. L EXI S 808, at *3 (Tex. App.—San Antonio Fe b. 7, 2001, no pet.) (not desig nated for publication) (conc luding that b ec ause State provided prior notice of its intention to introduce evidenc e of extraneous offe nse, defe ndant could have rea sonably anticipated th a t St a te w o u ld c a ll w it

n e s s to th a t e xtr a n e o u s o f f e n s e d e s p it e b e in g o mi tt e d f r o m St a te ’ s w it n e s s li s t)

.

2. Sif uentez’ s testim ony du ring pu nish m ent was n ot unf airly prejudicial Wit hin his third issue, Har ris also contends that the district court err ed by overr uling his objection to Sifuentez’s testimony during p u n i s hment about the extraneous bad act beca use it was “ unduly

prejudicia l” and a

violation of Rule 403. Article 37.07 of the Texas Code of Criminal Proc edure authorizes consideration of

sever al fac tors during punishment, including a defe ndant’s prior criminal rec ord, the circ umstances of the offe nse for which he is being tried, his g ener al reputa tion, and his char acte r. Tex. Code Crim. Proc. art. 37.07, § 3(a) (1); see Sims v. State , 273 S.W .3d 291, 295 (Tex. Crim. App. 2008) (noting that “[t] he L eg islature has e x pressly provided that ‘r eleva

nt’ punishment evidence includes, but is

n o t li mi te d to , b o th c h a

r a c te r e v id e n c e in th e f

o r m o f o p in io n te s ti mo n

y a s w e ll a s e xtr a

n e o u s - o f f e n s e evidenc e”)

. As this Court has noted, some extraneous offe nse evidenc e ad m i ssible under article 37.07, section 3(a) may be subject to a Rule 403 objection. Smith v. State , 899 S.W .2d 31, 34 (Tex. A p p .—Austin 1995, pet. ref ’d) (“The leg islature has deter mined that unadjudicate d offe n s e e v id e n c e may be considered i n as s essi ng punishment. I n a particular case, such evidenc e may be ex cluded

un d er rule 403 if, under the circ umstances of that case , the rele vance of the evidenc e to the punishment decision is outweig hed by other considerations arg uing ag ainst its ad m i s s i o n.”). A

17Rule 403 analy sis require s balanc ing: (1) the inhere nt probative forc e of the p ro ffered item of

evidenc e along with (2) the proponent’s need fo r t h at ev i dence ag ainst (3) any tendenc y of the evidenc e to sug g est dec ision on an improper basis, (4) any tendenc y of t he evidence to confuse or distract the jury from the main issues, (5) any tendenc y of the evidenc e to be gi v en undue weig ht b y a jury that has not been equipped to evalua te the probative forc e of the evidenc e, and (6) th e likelihood that prese ntation of t he evidence will consume an inordinate amount of t ime or m er el y repe at evidenc e alr eady

admitted. Gigliobianco , 210 S.W .3d at 641-42. Her e, the c harg ed off

ense and the ex trane ous bad act, which occurre d less than ten month s ap ar t , we re simil ar in sever al way s—the victims sustained cuts to are as of the neck and head, made with a ty

pe of knife, while in close pr ox imity to their attacker, and s eeming ly without provoca tion. Thus, the extraneous bad a ct had pr obative value beca use it showed Ha

rris’s pa ttern of conduct. Given that the extraneous bad act established a pattern of conduct, and that a defe ndant’s char acte r and criminal history are leg itimate c oncer ns in sentencing , consideration by a jury of the extraneous bad act would not sug g est decision on an improper basis or distract from the main issue. Fur ther, g iven the high probative value of this evidenc e and the broad punishment rang e, the State’s need for thi s evidenc e was high. The dist rict court’s limit ing instruction in the charg e mi nimi z ed any risk that the jury would have considere d the extraneous bad act for an improper purpose or g iven it u n d u e weight. See Taylor , 332 S.W .3d at 492 (noting presumption that jury understood and 5

This portion of the char g e stated, “You are instructed that if there is testimony befor e y ou 5 in this case reg arding [Harris] having committed other acts or participa ted in other transac tions other than the offe nse alleg ed agai n s t h i m in the indictment in this case , that y ou cannot consider such other acts or transac ti o n s , if any , unless y ou first find and believe bey ond a rea sonable doubt that [Harris] committed such acts or participa ted in such transac tions, if any , but if y ou do not so believe or if y ou have a

rea sonable doubt there of, y ou will not consider such testimony for a ny purpose.” 18followed trial court’ s jury -cha rg e instructions); Lane , 933 S.W .2d at 520 (noting that limit ing instruction can minimi ze impermissible infere nce of char acte r confor mity ). Evidence ab out the extraneous bad act was not confusing or technica l in nature and would not tend to mislead the jury

. Moreove r, the district court could have rea sonably deter mined t h at t h e prese ntation of evidenc e about the extraneous bad act would not consume an inordinate amount of time and was not mere ly duplicative or prolong ed such that it impacted the “ef ficienc y of the trial proce eding .” Gigliobianco , 210 S.W .3d at 641. Acc ording ly , the district court did not abuse its discretion in de termining that the proba tive value of the ex trane ous bad act evidenc e outweighe d any unfairly prejudicia l eff ect. See id . at 641-42; see also Tex. Code Crim. P roc. a rt.37.07, § 3(a) (1). 3. Ability to adequ ately pre pare for sentencing Also within his third issue, Har ris contends that bec au s e S i fuentez was allowed to testify , he was unable to adequa tely prep ar e for sentenc ing. Specifica lly , Har ris informed the court during punishment that the defe nse “would call sever al witnesses to show that this particula r offe nse was no-billed beca use there was a self-de fense claim that was prese nted and the g rand jury found that there was insufficient evidenc e to hold Christopher Har ris over for trial in that particula r

case .” Howeve r, the rec ord ref lects that the defe nse was able to pre s en t s u ch evidenc e throug h other witnesse s.

During his cross-e x amination in the punishment phase of trial, Sifuentez ag ree d that

a g rand jury “no-billed” Har ris for the extraneous bad act involving Sifuentez, and the prosec utor’s next questi on confirme d for the jur y that the ca se wa s “no-billed”:

19Def ense counsel: Did y ou lear n that this case was no-billed by a Travis County district by a Tra vis County

g rand jury ? Sifuentez: What does that mean? Def ense c ounsel: T h at they didn’t—the g rand jury found that t h er e wa s n o t

sufficie nt probable cause to hold Christopher Har ris over for trial in that case

. Sifuentez: Oh, y eah, y eah. I hear d s o mething about that. That’s why

they let it go. Def ense c ounsel: Pass the witness. Prosecutor: Do y ou know why the g rand jury

no-billed the ca se? Sifuentez: No, ma’a m.

Also during punishment, Z avala testified on redire ct for the defe nse about her understanding of what happene d with the Sifuentez incident. Over the State’s objection, she stated, “I was told it was selfdefe nse[.] ” F urther, the State cited ar ticle 37.07 in its notice of intention to introduce evidence of the prior assault ag ainst Sifuentez and that s t atut e specific ally ref ers to evidenc e of a defe ndant’s prior criminal rec o rd d u ri n g s entenc ing. See Tex. Code Crim. Proc. art. 37.07, § 3(a) (1); Garcia , 2001 Tex. App. L EXI S 808, at *3 (conc luding that defe ndant could have rea sonab ly anticipated that State would call witness to extraneous offe nse, despite being omitted from State’s witness list, beca use State g ave pr ior notice of its intention to introduce evide nce of that extraneous offe nse). On this rec ord, Har

ris has not shown that the district court’s ruling allowing Sifuentez to testify was outside the zone of rea sonable disag ree ment. See W ood , 18 S.W .3d at 649; Hightower , 629 S.W .2d at 925. Acc ording ly , we ove rrule H arr is’s third issue.

20CONCLUSION We affir m the district court’s judg ment of convic tion.

___________

_______________________________ Gisela D. Tr iana, Justi ce Be fore Chief J ustice Rose, Jus tices Goodwin a nd Triana Affir med Filed: Mar ch 13, 2019 Publis h

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