Opinion issued May 30, 2024

In The 

## Court of Appeals

For The 

## First District of Texas

———————————— NO. 01

- 23

- 00254

- CR

——————————— RICHARD WILLIAM KINCAID , Appella nt

V.
THE STATE OF TEXAS , Appell e e

On Appeal from the 82nd District Court

Falls County, Te xa s 1 Trial Court Ca se No. 11074

MEMORANDU M OPINION

1 Pursuant to its docket equa lizatio n authority, t he Supreme Court of Texas transfer red this appeal from the Tenth Court of Appe als to this Cour t. See T EX

. G OV ’ T C ODE § 73. 00 1 (authorizing tra nsfer of cases) ; T EX

. R. A PP

. P. 41.3 (“In

c ases transferred by the Supreme Court from one c ourt of appeals to a n other, the court of appeals to whi ch the case is t ransferred must decide the c ase in accordanc e with the pr ecedent of the t ra nsferor court

. . . .”).2

A ppellant Richard Kincaid appeals from his convictio n for the third

- degree
felony of theft of property, for which he w a s sentenced to seventy

- fiv e y e ars in
prison. In a si ngle issue, Kincaid argues the tr ial court erred by admitting evidence

that when he was arrested, the arresting officers found marijuana, fake urine, and
two syringes loaded with clear liquid in the SUV he was driving

. Finding no re versible error, w e affi r m

. Background

Kincaid was ch arg ed by ind ictment with two separate offenses : theft of
property and burglary . The first indictment, file d in Cause Number 11074, alleges

that on or about January 15, 2022, K inc a id “did then and there u nlawfully
appropriate by acquiring or otherwise exercis in g control o f a property, namely, a

26

- foot Southshore boat and t railer
, of the value of over $30,000 but less than
$150,000, from Ross Griggs, the owner thereof, without t he e ffective consent, and

wi th intent to deprive the owner of the property. ” See T EX

. P ENAL C O D E
§ 31.03(e)(5)

. The second ind ictment, filed in Cause No. 11075, alleges that or about January 15, 2022, Kincaid “did then and there intentionally and know ing ly

e nter a building
, or a po rtion of a building, without the effe ctive consent of R os s Griggs, the owner thereof, and attempted to s t eal or committed theft of property,
namely: [t] ools, toolbox and fishing poles, owned by Ross Griggs. ” See id.

§ 3 0.02(a)(1)

. Kinca id ple aded not guilty and bo th charges were tried together

. A3

jury convict e d Kincai d of theft but acquitted him of burglary

. Kincaid pleaded true
to two enhancement paragraph s 2 a nd the trial court s entenced Kincaid to seventy

five years in prison. 3

The Trial

A. T rial Testimony

F ive witne sses testifie d d ur i ng the guil t

- innocen ce ph ase of trial

.
1. Luke Sell

L uke Sell, a resident of Belton, T exa s, is a farmer and the general manager of a cotton gin at an agricultural supply company

. Ross Griggs is one o f his

landlords and Se ll sharecrops on Griggs ’ s land in Falls C ounty.

On Janu ary 15, 2022, Sell was plow i ng Griggs ’ s pro perty i n Barclay. As he
plowed, he saw a white SUV approach a house on Griggs ’ s property near where he

was working. The SUV had a “ ma g netic sticker that showed that th e vehicle was

from some form of busin es s. ” 4 Sell s aw three people exit the SUV and walk
around the property. About fifteen minutes la ter, the SUV backed onto the

2 The first enhancement was for conv iction of fel o ny possession of a controlled subs tance with inten t to deliver, double en h ance d, and the secon d en hancement

w a s for the felony of fraud ulent possession of ite ms of identifying in fo rm ation

. 3 As a result of the enhancements, the range of p unish ment was raised from a third

degree felony t o that of a “habitual enhancement ” with a range of p unishment of not less than twenty

- five years and not more than n inety

- nine years o r lif e , a nd a $10,000 fine

. 4 State ’ s Exhibit 9 showed the s i gn on the S UV was for “ Rick ’ s Handyman Service

. ”4

drivew ay in front of a b oat on th e property and hook ed it up to the SU V

. Sell
called Griggs, who told him he had not authorize d any o ne to take the boat.
According to Sell
, the boat was “ way too m uch weigh t ” for the SUV , which was

“ overl o aded

. ”

Se ll stayed on the phone wit h G riggs, telling Griggs which direction the
SUV was heading. Sell then called the constable and told him what was h appenin g and gave him a descript i on of the SU V. Sell eventually drov e to t he place wh e re

th e boat and SUV had been pulled over by law enforcement

. He gave a statement
to the Falls County Sher iff ’ s Department , helped de tach the boat from the SU V ,
and went b ac k to work.

2. Ross G riggs

R o s s Griggs lives in F alls Coun ty

. He te stified t hat on January 15, 2022,
after a phone call from Sell, he headed toward the t own of Westphalia “ to try to
catch up with [his] boat. ” As he followed the SUV that w as towing the b oa t, h e

g ave di rections to the Falls C ou n ty Sheriff ’ s Depar tment about the location of the

boat. When the SUV stopped, Griggs saw at least t wo people get out “ and [they]
were talking around the truck and the boat. ” The SUV began d riving a g ain and

eventua ll y a patrol c ar caught up with it. When the officer pulled up behind the

SU V , the SUV stopp ed. The occupants did not try to run away or drive off.5

The driver and two passengers of th e SUV w ere arrested. Gri ggs looked

ins ide the SUV and saw items that w ere taken from his property, such as a toolbox
,

gas cans, an d fishing rods a nd ree ls.
Grigg s identified Kincaid as one of the men in the SU V. Grig g s testified he
did not give K i nc aid permission to take his boat, to be on his property, or to take

any o th er i tems

. Grigg s t estified the boat wa s worth ap proximately $50,000 at the

time of trial

.
3. T er ry Kimble

O fficer Terry Kimble was a p ol i ce officer for th e C ity of Lott o n January 15,

2022 . He was working a funeral escort when a call came over the radio a bout a

stolen boa t being pulled by a white S U V hea d ing to ward Lott. He found the SUV
,
activat ed his s i ren and lights, and conduct ed a traffic stop of t h e S UV and boat.

Officer Kimble identified Kincaid as the driver of the S UV. Officer Kimble

orde red K inca id and the two passengers out of the SUV

. He took Kincai d to the
Falls County Jail.

Officer Kimble was wearing a body cam , but he testified it wa s difficult to

hear most of what was on it because the wind interfered with the audio. A

shor ten ed vers io n o f the body cam video was played for the jury. During the nearly6

nine

- min u te vide o, m ost of which is unintel ligible, Officer Kimble stated he

smelled marijuana in the SUV

. 5

Officer Kimble testified that Kincaid was found wit h a “ little bit of green,

le af y s ubstance that [he] b elieve [d] to be marijuana, ” a marijuana pipe
, and fak e

ur i n e tha t Kincaid admitted owning

. Officer Ki mble stated he smelled marijuan a

in the SUV when he approached it

. He acknowledged the green leafy substance

could ha ve been hem p.

Aft er taking Kincaid to the Falls County jail, Officer Kim b le took the fake
urine and marijuana to the sheriff ’ s office.

4. Mieshia Bank s

D eputy Mieshia Banks was a patrol officer with the Falls County Sheriff ’s
Depar t ment on January 15, 2022. She testi f i ed t hat she w as the primary

invest igator o n t h e case. Deputy Banks arrived on the s cen e after Officer Kimble

sto pped the S U V

. Deputy Banks hel ped Officer Kimble detain the men from the

SUV and then i nterviewed each ma n. She identified K incaid as one o f the men

arre sted that day. 6
Deputy Bank s testified that needles with clear liqui d we re found inside the

SU V. She said the suspects ’ phones were confiscated “ to get a phone dump to

5 Kinca id did not obj ect to the admission of the bodycam video.

6 All three men in the SUV we re arrested but only two were c harge d with theft and bur gl ary of a buildi ng

. Kincaid also w as charged with possession
, but it is unclear what became of that charge.7

estab lish the communication [that occurred] before the alleg e d cr ime too k place, ”

but her s upervis ors told her not to perfor m the phone dump

.
5. Ke ith God l e y Jr. 7

O fficer Keith Godley J r. testified he was a part of the investigation into the

theft of the boat a nd burglary of a building. Duri ng the investigation, he retrieved

K i n caid ’ s phone and turned it o ver to Deputy Banks, the pri m ary o fficer o n the

case

. He made copies of some texts from Kincaid ’ s phone of a conversation with

one of the S UV ’ s pa ssengers

. He testified tha t t he text s did not pertain to the boat.

He sta ted t h e text messages were about a drug t r ansaction involving GHB, the

“ da te rape ” drug

.
B. The Motio n in L imine
While the jury was out of the court room, and prior to Officer Kimb le ’ s testimony
, the S t ate told the Court and defense counsel that Officer Kimble w o uld
testify “ that when h e s topped the veh icle, that he immed iately s m ell ed mariju ana

inside. When Mr . Kincaid was searched, he did have a marijuana or a typ e of
narcotic pi pe in his pock et. There was also fake urine found in the vehicle , which

Mr. Kinc a i d admitted was his. ” Kincaid then made the follo wing moti on :

Defense counsel:

. . . I ’ ll make [a mo tion in limine]
, because it ’ s not

re l evant to this c ase and it ’ s trying

— and is trying to get him convicted as a crimi nal generally, because the y ’ re saying
, Well, he smokes

7 Godle y was the defense ’ s sole witness.8 marij uana, he ’ s a thief , you can smell marijuana, smoked marijuana, always using drugs, using fake urine, and he ’ s just a criminal.

The C ourt: But I think the law is when it ’ s all intertwined in

the s ame incident, I think she can go into t hat.

Defense counsel : He wasn ’ t charge d with an y of that.

The C o urt: I know. I ’ m not s aying he ’ s charged with it.

Defense counsel: B u t it has no rel evance to the case. I w ill give you

an examp le. Ok ay?
If a pe rson is charged with DWI, alcohol DWI
, and th ey find mariju ana in the car and they ’ re c har g ing him

— marijuana has nothing to do with the allegation of DWI

— and they ’ re char ging h im with DWI by alcohol, they can ’ t brin g in th e marijuana that was found in the car. There ’ s case law on that. I d on ’ t hav e the cites, b ut I know there ’ s c ase law o n that.

T h e Court: I don ’ t

— y ou ’ re right. I don ’ t think that ’ s what she ’ s doing.

The S t ate: Yeah, it ’ s the same transaction, Y our Honor.

The Court: Same transaction.

The State: Case s are n ’ t tried in a v ac uum. A jury is allo wed

to know

—
The C ourt: The re ’ s some case law on that.

. . .
Defense co unsel: There ’ s ca se law on it, Judge , tha t says if you ’ re

charging someone with D WI and they have got possession at the sa me time, and they ’ re not9 charged with m arijua na but they fo und marijuana, and you ’ re no t trying the marijuana case, you can ’ t offer the marijuana.

The S tate: You can, Your Ho n or. And at any rate, it is the

mental state, you know, the state of the mind of the Defendant when th ey ’ re doing wha t they ’ r e doing.

. . .
Defense counsel: I ’ m going to objec t. It ’ s not relevant. Because,

Judge, the issue in this case is wh at ’ s charged in the indictment.

The Court : I und erstand

.
Defense counsel: Extraneo us offenses, alleged extraneous offenses,

e ve n admission of alleged extraneous offens es h ave no bearing on whether or not he is guilty of the offenses alleged

.
The Stat e: Your Honor, it goes to the mental state.

The Cou rt: Mr. Karels, I think [ the State is] corre ct about that.

I

— I understand your point.

. . .
W e ll, let me hear what they

— w hat t h e witness says, and I ’ ll make a ruling. But right now, I ’ m g oing to deny your l imine and let her prove up the transaction th at took place

. I do think it goe s to the mental state. A n d I know you don ’ t want me t o tell you that, but I believe that ’ s the s t atus of the law . A n d you can cross

- examine about it all day long.
Subsequently, duri ng Officer Kimble ’ s t estimony , the following exchange

occurred:10

The State: And wa s any contrabrand [sic]

— contraband f ound

on h im?

Defense counsel : Obje c tion, Your Honor.

The Court: Overruled.

Defense couns el: I ’ d ask for a running objection.

The Court: Granted.

The State: Was any contraband found on the Defendant?

Officer Ki mble: A little bit of green, leafy substa nce tha t I beli eve

to be marijuana, due to my training as a police officer

The State: Was there a pipe in his pocket ?

Officer Kimble: Yes, there wa s a pipe, a marijua na pipe.

T h e State: Did you also smell the odor of marijuana in th e

vehicle when you ap proache d it?

Officer K imble : I did

.
T he State: And did you, when you searched the

— when you

searched th e veh icle, did you find any other type of cont raband inside that vehicle:

Officer Kimble: Yes.

T he State: What did you find?

O fficer Kimbl e: I found some fa ke urine.

The State: Okay

. A n d did anybody admit to owning that fake

urine?

Officer Kimbl e: Yes.11

The State: And who owned

— who owned up to that?

Officer Kimb l e: Mr. Kincaid.

Later , Dep uty Banks was also q uestioned about the subst ances f ound in the SUV :

T he State : And were ther e any illegal type of substances

found in the vehicle ?

Defense counsel: I ’ m going to object, Your H onor.

The Court: Overruled.

Def ense counsel: May I have a running objection?

The Court: You m ay

. Deputy Banks: I was i nf or med by Off

i cer Kimble that he did f ind

some

— a co uple of illegal substance it ems in th e vehicle.
Dep uty Ba nks then testified she sa w “ needles with clear liquid inside of them
, ”

which were found in the SUV “ up in the sunvisor above the driver ’ s sea t

. ”

C. C l o sing A r gument

In his opening argument, Kincai d ’ s counsel argu ed the evidence would show

Kincaid did not realize he was taking property without the owner ’ s permission.
But there was no testimony in support of that defense or any other. In closin g,

Kinc ai d ’ s counsel pointed out that the alleged theft occurr ed in “ b road dayli ght ” in

a vehicl e that h ad Kin cai d ’ s name and phone number on it. Defense couns el
argued Kincaid could have remo v ed the magnetic sticker with his name from his12

SUV , but he did not. In addition, no one tried to run when the police stopped the

SUV

. Defense counsel reminded th e jury that one of the SUV ’ s occupants was not
charged with theft, and he ask ed that Kin caid b e given the same “ benef it of the

doubt ” as the passenger who was not c harged

. 8
During its closing argument, the State referred to Kincaid as “ [s]om ebody
high o n dope ” :

. . . When you ’ r e towing a big boat that ’ s attached to a vehic l e that ’ s not even big enou gh to pull it. B u t it has signage on it. It ’ s a way to
n o t look s us picious, okay? It ’ s just that somebody is dumb enough to do that

. Somebody high on dope, dumb enough t o do that.

. . .
S o you got a vehicle that smells l i ke marijuana. You got a m arijuana pipe in your po cket. It fits that you ’ r e just tha t s tupid.

The State also referred to the pho ne dump:

I wo uld have liked t o have seen the dum p

— the phone dumped. There was evidence, as you heard about, d rug dealing going on, you know. Dump that to learn more about what ’ s going on as far as drug d ea l ing. But as f ar as this case goes, he ’ s not on trial today f or drugs. Okay? We ’ re not here for tha t. We ’ re only here for the theft of this boat and the i t ems inside.
The jury convicted Kincaid of the theft charge and acquitted him of the
burglary c ha r ge

. T he t r ia l court sentenced h im to seventy

- five years in p rison.
This appeal ensued.

8 Nei ther of the other two occupants of the S UV t estified at t rial.13 Discussion
In his sole issue, Kincaid argues that evidence of the a l leged marijuana, fake

urin e, and syring es recovered when he w as arrested was “ prop ensity ” evidence and

th us , i na dmissi ble

. The Sta te argu es recovery of the a ll eged marijuana, fake urine,
and syringes w a s admissible as “ same transaction contextual e vidence

. ”

A. Standard of Revie w
We review a trial court ’ s ruli ng on the admission of evidence f or abuse of

disc re tion. Da vis v. State , 329 S .W.3d 7 98, 803 ( Tex. Crim. Ap p. 2010) ; Tillman

v. State , 354 S.W.3d 425, 435 ( Tex. Crim. App. 2011). “As long as the trial

c ourt ’ s ruling is wit hin the ‘zone of reasonable disag reement,’ there is no abuse of

discretion , and t he trial co urt ’ s ruling will b e upheld.” Devoe v. State , 3 54 S.W.3d
457, 469 ( Tex. Crim. App. 2011)

. A trial court abuses its discretion if it act s

arbit rarily, unreasonably , or without reference to any gu iding rules or prin ciples.
Montgomery v. State , 81 0 S.W.2 d 372, 3 80 ( Tex. Crim . App. 1990).

This standard o f review applies to a trial court ’ s decision to adm it evidence

of extraneous offenses or bad act s

. De La Paz v. Stat e , 279 S.W.3d 336, 343 ( Tex.
Crim. App. 2009 ); Devoe , 354 S.W.3 d at 469

. A trial cou rt ’ s r ul ing o n the

admissi on of extraneous offens e evid ence is generally within the zone of
reasonable disagreement “i f the evidence shows that 1) an e xtraneous transactio n is

relevant to a material, non

- propensity issue, and 2) the p robative value of t hat14

evi d e nc e is not substanti ally outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading th e jury.” De La Paz , 279 S .W.3d a t 344

.
B. A dmission of the Drug Evidence

Kincaid argues evidence conc erning the alleged m arijuana, the fa ke urin e

and th e syringes “ fa iled [to] assist the jury in weighing any contested issues ” and

“ pr ovided no ass istance to the jury. ” 9 , 10 He argues there was no necessity to

intro duc e the drug evidence to prove theft. In r esponse, t he State a rgues that the
drug ev i d e nce was admissible as “ same t ransactio n [contextual] evidence. ” We
disagree.

9 K in c aid relies on a case from the C ourt of Crim in al A ppeals for the pr oposition that “the introduction of extraneous offenses to the jury are inh erently prejudicial. ” Sattiewhite v. State , 786 S.W.2d 271 (Tex. Crim. App. 1989)

. But i n Sattiew hi te , the Co ur t held that testimony of an e xt ra neous offense wa s properly admitted

. Th e court observed that the testimony, in which a witness testified that the defendant threatened th e decedent on prior occasions while holding a gun to her head, was

“ introduce d as a trans ac t ion rather than as a cri mi nal offense ” a nd t hat the testimony did not suggest the defendant had faced civil or criminal liability for the ext raneous offenses. Id. at 285.

10 Kincaid also relies on Castaldo v. State , 32 S.W.3d 413, 427 (Tex. App.

— Wa co 2000 ), rev ’ d
, 78 S.W.3d 345 ( Tex. Crim. App . 2002)
, in support of the proposition th at the introduction of extrane ous offenses i s inherently prejudicial. We note Castaldo was reversed. I n Castaldo v. State , 78 S.W.3d 345
, 350 (Tex. Crim. App. 2002)
, the State sought the admission of evid en ce of t he ex t raneous act s of the driver of the v ehicle in which the defendant was riding . The driver was reckless
, showed signs of intoxication
, and mari juana was found in the car

. Id. In holding the extraneous acts were admissible, the C ourt o bs erved t hat the ac ts were actually helpful to the defens e ’ s the ory of the case

.15

Under Texas Rule of Evidenc e 404(b ), evidence of extra neous crimes,
wrongs, and other bad acts is not admi ssible at the guilt

- innocence phase of trial t o prove that a d efendan t c ommitted the charged offense in conformity with a bad

character trait. T EX

. R. E VID

. 404(b); Devoe , 354 S.W.3d at 469

. Th is “P rope nsity

R ule ” is mandatory
, and “ only those purposes other than propensity, such as those

listed in subsection (b) o f Rule 4 0 4
, will justify the admission of otherwise

inadmissible chara cter evidence. Such evidence must be directed at a
consequent ial fac t, and its probative value must not be outweighed by its
prejudicial potential. ” Mayes v. State , 816 S.W.2d 79, 86 ( Tex. Cr i m

. App. 1991)

.
E vidence of ext ra neous crimes, wrongs, and other bad acts, however, may be

introduced if it constitutes “ sa me transaction c ontextual evidence. ” 11 Id. at 86 n.4.

C r imes a re collectively refer red to as same transaction contextual evi denc e w hen

“ several c rimes are intermixed, or blen ded with one another, or connected so that
they form an indivisible criminal transaction, an d full proof by testimony

. . . of

any one o f them cannot be given witho ut showin g the others.” Devoe , 354 S.W. 3 d

at 469 ( q u o ti ng Wyatt v

. State , 23 S.W. 3d 18, 25 (Tex. Crim

. App. 2000 ) ). Same

transaction contex tual evidence is only admissible when the facts and

11 The Court of Criminal Appeal s has delineated two types of background evidence: same transaction contextual evidence and background contextual evidence. Rogers v. State , 8 53 S.W.2 d 29, 33 (Tex. Crim. App. 1993) (citing Mayes v. State , 816 S.W.2d 79, 86

– 87 (Tex. Cr im. App. 1991) ). Ba ckground contextu al evidence
, which is offered only bec ause it is “backgroun d” evidence and th us helpful to the jury
, is not admissible under R ul e 404( b)

. See id. at 33 n.5 (discussing Maye s )

.16

circumstance s of the charged offense “ would make little or no sen se without also
bring ing in t hat evidenc e [

. ] ” Id

. That is , same transaction contextual evidence is

admissible on ly “where such evidence is necessary to the jury ’ s understanding of

the instant offense [

. ] ” Roger s v. State , 853 S.W.2 d 29, 33 (Tex. Crim

. App. 1993)
(emphasis in original). Sam e t ransaction c ontextual eviden ce is admitted “ because
in narrating the one [offense] it is impracticable to avoid descr i bing the other, and

not because the other has a n y evid ential purpose. ” May es , 816 S.W.2d at 86 n.4
(citations omitted)

. In other words, it is admi ss ible “ not for the purpose of

showin g character conformity, but to illuminate the nature of the crime alleged. ”

Camacho v. State , 864 S.W.2d 524, 532 ( Tex. Crim. App

. 1993)

.
The S t ate cites a single case in support of its argument that th e evid ence was

p ro perl y admitte d as s ame transaction contextual evidence

. See Swarb v. State
,
125 S.W.3d 672 (Tex. App.

— Houston [1st Dist.] 2003, pet. dism’d) . In Swarb
,
th is Court held that evidence of an arrest warrant for an extr aneous offense was

admissibl e because it was “ so int er twin ed ” with the char ged offense of possession
of methamphetamine

. Id. at 682. We explained that “ t he arrest warran t evidence
provided the jury with a context to show why [law enf orcement personnel] were

se a rching for appellant, why they w er e at t he location to come across ap pellant ’ s truck, and how they found the methamphet a mine located in appellant ’ s truck

. ” Id

.
And we con cluded that the prejudicial effect of the evidence did not substantially17

outweigh its p r obative value
, giv en the lim it ed d et ails of the arr est warrant

in troduced by the State

. I d

. We find the holdin g in Swarb inapposite

. Unlike in

Swarb
, t he alleged marijuana, fake urine, and sy ringes recovered after Kincaid was
pulled over have no bearing on why he was arr ested
, nor d o th ey provide con tex t

as to w hy la w enforc ement was sear ching for Kincaid or why they pulled him over
in the first place

. Roger s v. State is in struc tive

. The defendant in Rogers was charged with

two counts of burglary of a habitation and wi th possess io n of m ethamphetami ne.

853 S.W

. 3d a t 31. He was convicted of the three offenses and all three charges

were tried in a single tria l

. Id. During the trial, the tr ial court admitted th e

defendant ’ s written confession, in which he admitted using and selli ng mar ij uana

and met hamphetamine

. Id

. The defendant objected to the admission of the portion

of the confession in which he s a id :

I also have in my possessio n at my residence a quantity of marijuana approximately four ounces, I had put it in my mother ’ s b ed room

. I a m a marij uana user and sel l small quantities of it. I am also a methamphetamine dealer and sell quarter grams to fin ance my methamphetamine habit.

Id. T he defendant objected that the confession involving marijuana constituted

“irrele vant extra ne ous of

fense eviden ce ” but the State argued the evidence w a s res

gestae of the offense and admissible to show motive to commit the burglaries. Id

.18

Th e court of appeals affirme d the a dmission of th e state ment, holding it was res

gestae of the m ethampheta mi ne p os session char ge. Id. at 32.

T he Court of Criminal Appeals disagreed , holding that evidence pertaining

to the defendant ’ s po ssess ion
, us e, and sale of mari juana was not admissible as

same trans action contextual evidence, because the eviden ce was not “ nece ss ary ” to

the jury ’ s understan d ing of the charged offense:

The jury ’ s understanding of the instant offenses would not hav e bee n impaired or clouded had the Sta te described appellan t ’ s arrest without including the evidence concerning the mar ijuana. Su ch omi ss ion would no t have caused the evidence regarding the instant offenses (burglary and possession of methamphetamine) to a ppear incomplete

. . . . We ho ld that the evidence concern ing the marijuana was not “neces sary” to the jury ’ s understa nding of t he off en ses of burgl ary and possessio n of methamphetamine and was therefore not admissible

as same transaction contextual evide nce u nder Rule of Criminal Evid ence 40 4(b).

Id. at 34. 12 T he Court held
, “it would not have been impract icable to avoi d

describi ng the r ecovery of t he marijuana and [the defendant ’ s] confessed use and

sale of marijuana
, ” observing that the State c ould have desc ribed the defendant ’ s

arrest wi thout r eferring to the marij uana. Id. 13

12 Te xas Rule of Criminal Evidence 404 is now fo u nd in Texas Rule of Evidence 40 4. See Davis v. State , No. 01

- 97

- 00406

- CR, 1998 WL 417784, at * 2 n.1 (T ex. App.

— H ouston [1st Dist.] July 23, 1998, pet. ref ’d ) (mem. op., n ot designated for publication). T he rule s are substan tially the sam e. Id.

13 T he Court of Criminal A p peals vacated the court of appeals ’ judgment and remanded the ca se to the court of a p peals to conduct a harm analysis. 853 S .W.2d at 35.19

Co nsis tent with this gene ral under standi ng o n the admiss ib ilit y of same

tran saction contextua l evidence, severa l appellate courts have held the admission

of evidence regarding criminal acts or alleged criminal acts w as error when th e admission was not necessary to assist the jury in un der standin g the offe ns e at i s s ue.

S ee Ove rton v. St

ate , No. 10

- 07

- 00036

- CR, 2008 WL 383508, at *4 (Tex. App.

— Waco Feb. 13, 2008, no pet.) (mem. op., not de signated for p u bli cation) ( holding

admission of evidence regarding loa ded gun recovered from defendant ’s trunk was

not sa m e trans action contex tual evide nce in prosecution for possession of cocaine

f ound on defendant during same traffic sto p ); Peters v. State , 93 S. W.3d 347, 353
(Tex. App.

— Hou ston [14 th Dist.] 2002, pet. ref’d) ( holding evidence that shotgun

and ma rijuana wer e f

ound in hotel room when defe nda nt was arrested for cocaine
possession not admissible as same transaction contextual ev idence when only

contested issue was whether office rs had consent to search room , because ev idence

“ did not directly relate to a fact o f c onseq uence in the case and w as intended to
prove that [the defendant ] acted in conformity with a (bad) character ”) ; Gonzalez v.

State , 510 S.W.3d 10, 28 (Tex. App.

— Corpus Christi

– Ed inburg 2014, pet. ref’d)
(holding evidence of drugs f ound i n defendant ’s apart m e n t was not same

tra nsaction c ontextual evidence with respect to charge involving marijuana found

in defendant ’s car ) ; Thomas v. State , No. 06

- 17

- 00224

- CR, 2018 WL 2027173, at

* 1 (Tex. App.

— Texarkana May 2, 2018, pet. ref’d) (mem. op., no t designated for20

p u b li cat ion) ( holding methamphe tamine and pipe found during traffic stop w a s not

same transaction contextual evidence with respect to c harge for unlawful
possession of firearm by felon even though fir earm was recovered during same

traffic stop) ; Revill v. S t

a te , N o. 12

- 02

- 0019 7

- CR, 2004 WL 1416240, a t * 8 (Tex.
App.

— Tyler June 23, 2004, pet. ref’d) (mem. op., no t des ignated for publicati on)
(holding trial court erred in admitting evidence that defendant possessed marijuana

when arrested for possession of met h a m pheta mine with int ent to del iver or

manufa ctu re)

.
As in Ro g ers , we conclude that evidence of the p urported marijuana, fake

urine, an d syringes were not admissible as same transaction contextual evidence

bec ause the evidence was not “ nec essary ” to the ju r y ’ s understan ding of the
charg ed offense of theft of property

. T he State could have eli ci ted t estimony
regarding Kincaid ’s arrest and the alleged theft of the boat witho ut discussio n of

the purported mariju ana, fake urine
, or sy ringes. A s far as the jur y k new, Kinc aid

was n ot charged with any drug

- re lated offense
, and evide nce regard ing th e items

found on Kincaid and in the SUV were not necessary to their unders tanding of the
allege d theft

.21

W e th us hold the trial court abused its discr etion by admittin g t estimony

concernin g the p urp orted marijuana, fake urine, an d syringes

. 14 T he trial court ’ s

error , however, is not reversible error unless Kincaid was harmed by the admission

of the evidence.

C. Harm Analysis

We rev iew the erroneous admissi on o f extraneo us offens e s or extr aneous

bad act evidence for non

- constitutional error

. Ruiz v. State , 293 S.W.3d 685, 695
(Tex. App.

— San Antonio 2009, pet. ref’d)

. Rule 44.2(b) requires us t o disregard

the error unles s it affecte d the appell ant ’s “ subst ant ia l rights. ” T EX

. R

. A PP . P.
44.2(b)

. “ A substantial right is affect ed when the error had a substantial and
inju rious effect or influence in determining the jury ’ s verdict. ” King v. State , 953
S.W.2d 266, 271 ( Tex. C rim. App. 1997) (citin g Kotte akos v. U n ited S tates , 328

U .S. 75 0, 776 (1946)). Conversely, an error does n ot affect a substantial right if

we have “fa ir assurance that the error did not influence the jury, or had but a slight

14 Bef

ore evide nce c an be admitted as same tran sa ction c ontextual evidence, it must satisfy t he balancing t est contemplated by Te x as Rule of Evidence 403. See T EX

. R. E VID . 40 3 ( “ The court may exclude r elevant e vidence if its probative value is substanti al ly outweighed by a danger of one or more o f th e followi ng: unfair prejudice, confusing the i ssues, mislead ing the jury, undue de lay, or needlessly presenting cumulative evidence. ”) ; see also Batten v. S tate , No. 01

- 18

- 00456

- CR, 20 20 WL 625305, at * 4 (Tex

. App.

— Houston [ 1 st Dist.] Feb. 11, 2020, pe t. r ef ’d) (me m. op., not designated for publicati o n) ( “T o be adm issible, same transact ion contextual evidence must also satisfy Rule 403 ’ s balancing test [.] ”)

. In light of our holding that the evidence was not a dm issible as sam e tra nsaction contextual evi denc e, we nee d not perform a Rule 403 analysis.22

effect.” Solomon v. State , 4 9 S.W.3d 3 56, 365 ( Tex . Crim. App. 20 01 ) (quoting

Reese v

. State , 33 S.W.3d 238, 243 (Tex. Crim. App. 2000) )

. We ultimately

consider whether the evidence, even if releva nt, had the potential “to lure the

factfinde r into declaring guilt on a ground different from proof specific to the

offe nse c harged.” Manning v. State , 1 14 S. W.3d 922, 928 (Te x. Crim . App. 2003)
(quoting Old Chief v. United States , 519 U.S. 172, 180 (1997) )

.
In our analysis
, we rev iew the record as a whole, “ including any tes timony
or physical evidence admitted for the jur y ’ s c onsideration, the nature of th e

evidence supporting the ver dict, the character of the alleged error and how it might

be considered in connection wit h other evidence in the case. ” Motilla v. State , 78
S.W.3d 352, 355 ( Tex. Crim. App. 2002) ( quot ing Mo ral es v. State , 32 S.W. 3d
862, 867 (Tex. Crim. App. 2000) )

. We m ay also consider the jury instructio ns , the

Stat e ’ s theory a nd any defensive theories, whether the State emphasized the error,
closing arguments, whether the evi dence was cumulative, whether t he ev idence

was elic ite d from an expert, and even v oir dire, if applicable. Id. at 355

– 56 ; Bagheri v. State , 11 9 S.W.3d 755 , 763 ( Tex. Crim. App. 2003) ; see also Cook v.

Sabio Oil & Gas, Inc. , 972 S.W.2d 106, 111 (Tex. App.

— Waco 1998, pet. denied)
( “E vide nti ar y rulings will not cause reversal unless the whole case turns on the
evidence improperly admitt ed or exclud ed. ”) (citations omitted)

.23

We co nclude admission of the evidence regarding the marijuana, fake uri ne, and syring es w a s harmless error given the pro ba tive natur e of the other evidence

before the jury. Th e testimon y itself provided significant reason for the jury t o

convict Ki ncaid of the ft. Lu ke Sell testified that he was on Griggs ’ s property on

Janua ry 15, 2022, when he saw three people take Gri ggs ’ s boat . H e called Griggs

and learned that the three men wer e not authorized to take his boat a nd he called

the cons ta

ble . He testified the boat w as “ way too much weight ” f or the SUV th at
was pulling it.
Griggs, the bo at ’ s owner, testified that afte r Sell called him on January 15,

2022, he dro ve toward Westphali a to catch up with his boat. He eventually caught

up w ith the SUV that w a s pulling the boat

. When the SUV was pulled over
, the

three SUV occupants , including Kincaid, eme rged and they were a rr ested. Griggs

sa w some of his belongings in the SU V and testified he did not give Kincaid
permission to take his b oa t or any other possessio n

. H e also testified he did not

authorize Kincaid to be on his pro perty.

Officer Kimb le testified that h e re ceived a call abou t the SUV, located the

S UV and the boat , an d conduc ted a traffic stop of the S UV . He identified Ki ncaid

as the driver of the SU V. Deputy Banks , the primary inv estigator on the case
,
testified that sh e arri ved on the scene afte r Officer Kimble pul led over the SUV.

She also identifi ed Kincaid as o ne of t he occupants of the SUV.24

Although Offic er Kimble testified that when h e arrested Kin caid, he found

fake urin e in the SUV
, a “ little bit of green, leafy substanc e ” which he believ ed to
be marijua na , and a marijuana pipe on Kincaid
, and D eputy Bank s testified that
needles with clear liquid were f ou nd inside the SU V at the time of ar rest , we

conclude th at testimony played a minor role in Kincaid ’ s convic tion. Indeed,

Office r Kimble ac knowledged tha t th e green substance could hav e been hemp , the
possession of which is not illegal. Se e Rev ill
, 2004 W L 1416240 at *8 ( holding

err or in admitting evidence that defendant possessed small amount of marijuana

wh en arrested was harml ess and p l ay e d “ minor role ” i n prosecution for
methamphetamine char ge because, among other things, State did not prov e

sub stan ce was marijuana)

. Similarly, there was no testimony about the contents of
the syringes.

We do not agree with Kincaid th at the State “ emp ha si zed ” the r ecov ery of
the purported marijuana in its closing argument. In fact , the State re minde d the
jury that K in caid was not being tried on a drug charge. During its closing, the
State argued:

. . . When you ’ r e tow ing a big boat that ’ s attached t o a v ehicle that ’ s not even big enough to pull it. B u t it has signage on it. It ’ s a way to not look sus picious, okay? It ’ s just that somebody is du mb enough to do that

. Somebody high on dope, dumb en ough t o do that.

. . .25

S o you got a vehicle that smell s like marijuana . Y ou got a marijuana pipe in your po cket. It fits that you ’ r e just that s tupid.

Th e State contin ued :

I wo uld ha ve liked to have seen the dum p

— the phone dumped. There was evidence, as you hear d about, drug dealing going on, you know. D um p that to lear n mo re about what ’ s going on as far as drug d ea l ing. But as far as this case goes, he ’ s not on tria l today f or dru gs. Okay? We ’ re not here for tha t. We ’ re only h ere for the theft of this boat and the items inside.
Beyond these statemen ts , t he majority of the State ’ s closing arg ument was
dedicated to discussing the allege d thef t and testimony elicite d from Griggs and

S e ll

.
W e conclude beyond a reasonable d oub t that even though th e trial court

erred in admitting evidence of the alleg ed m arijuana , fake uri ne, and syringes , the

admission did not have a “ substantial or injurious eff ect or influence ” on the jury ’s

verdict. Th e error was th us harm less

. See King , 953 S.W.2d at 271 ( holding

erroneous admission of records regarding defendant ’ s previous incar cer a tions was
harmless); Overton , 2008 WL 383508 a t *5 ( holding erroneous admis sion of

evidence of weapon found in trunk d u ring drug

- related arrest w a s ha rmless ) ;
Gonzalez , 510 S.W.3d at 2 9 (holding erro neous admission of evidence of drugs

f o und i n friend ’ s ap artment wh en charges involved marijuana fou nd in defendant ’s

car was har mless )

.26

W e overrule Kincaid ’ s sole issue.

C oncl usion

We a ffirm the tri a l cou rt ’ s ju dgmen t.

Ve r o ni c a Ri va s

- M ol l o y Ju st i c e

Pan el co ns is t s o f Ju sti c e s Hightower
, Ri v as

- Moll o y , and Farris

.
Do not p u b l i sh. T E X

. R

. A P P

. P

. 4 7. 2( b).