Opinion issued February 19, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00299-CR

———————————

ROBERT EARL SCHIELE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 411th District Court

Polk County, Texas

Trial Court Case No. 22467

MEMORANDUM OPINION

Appellant Robert Earl Schiele was charged by indictment with felony 

arson.

1 The indictment’s enhancement paragraphs alleged that Schiele previously 

 1 On March 26, 2013, the Texas Supreme Court ordered this appeal transferred from 

the Court of Appeals for the Ninth District of Texas. See TEX. GOV’T CODE ANN.

§ 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any 
2

had been convicted of felony burglary and felony retaliation. A jury rejected 

Schiele’s theory of the case—that the grease fire began accidentally—and found 

Schiele guilty of the charged offense. After finding the enhancement allegations 

true, the jury assessed punishment at life in prison. On appeal, Schiele contends 

that the evidence at trial was legally insufficient to support his conviction. He also 

contends that the trial court erred by (1) admitting, during the guilt/innocence 

phase, evidence that he was on parole at the time he committed the charged offense

and had previously violated parole conditions and had his parole revoked, and 

(2) admitting, during the punishment phase, evidence of a prior conviction for 

injury to a child. We affirm.

Background

On February 7, 2012, the mobile home that Schiele and his family were 

renting caught fire and burned to the point that it was not salvageable. Marian 

Buffington, a Children’s Protective Services caseworker, testified that she believed 

she smelled something burning when she made an unannounced visit to the home 

on the day of the fire. She arrived at 10:21 a.m. but left shortly thereafter because 

no one answered her knock on the door. She testified that she smelled something 

burning as she walked back toward her car and away from the home. But 

 

conflict between the precedent of the Court of Appeals of the Ninth District and 

that of this Court on any relevant issues. See TEX. R. APP. P. 41.3. 
3

Buffington did not call 911 because she returned to the front door to check the 

smell and could not smell anything while standing there. 

Approximately three hours later, Jack Ray, a passerby, drove by the home 

and saw smoke and flames. Ray called 911 to report the fire at 1:29 p.m. He 

testified that he had driven by the home 15 minutes earlier and had not seen any 

evidence of fire at that time. 

Officer T. Binford of the Polk County Sheriff’s Department testified that he 

was dispatched to the scene around 1:32 p.m. When he arrived five minutes later, 

Binford looked in a window and saw “a small fire in the kitchen area” that 

“appeared to be on the top of the stove area.” He testified that the house was 

“filled with smoke” and that no one was inside.

Schiele had not called 911 to report the fire, but he did call Krystal Philp, his 

parole officer, half an hour after Ray reported the fire. At about 1:58 p.m. on 

February 7, Schiele left a voicemail for Philp explaining that he had failed to report 

that morning due to a fire at home. Philp returned Schiele’s call that afternoon and 

made a recording of their conversation, which was played for the jury at trial. In it, 

Schiele told Philp that his home caught fire that morning. Schiele told Philp that 

he had put out the fire and then left to meet Philp in Huntsville, as she had 

instructed the day before, but that he failed to make the meeting because he had to 

return home when he learned the fire had re-ignited. Schiele told Philp that he had 
4

inhaled smoke and left the home and that he was at a nearby bridge. Earlier that 

day, Philp had requested a warrant for Schiele’s arrest based on his failure to report 

as instructed. 

Captain R. Childers of the Polk County Sheriff’s Department testified that 

he arrived at the bridge after another officer had arrested Schiele pursuant to the 

arrest warrant. Childers testified that Schiele’s wife, Bessie Lucas, and two 

children, were at the bridge with Schiele and the arresting officer. Lucas’s bag

contained a red expandable folder containing important family documents.

Once Childers and Schiele arrived at the police station, Childers conducted a 

videotaped interview of Schiele, which was played for the jury. According to 

Schiele, he was frying lunch—hot pockets, corn dogs, and French fries—in a 

skillet on the electric stove when a grease fire started. Schiele told Childers that a 

cabinet caught fire, and that his children ran outside as he fought the fire. Schiele 

said that he only left the house after he thought that he had extinguished the fire. 

Schiele, Lucas, and the children then walked to a nearby bridge where they waited 

for the smoke to clear out of the home. Although Schiele heard sirens within an 

hour after he left the home, he did not return because he did not “want to deal with 

the landlady.” Schiele surmised that the fire must have blazed back up after he 

left. 
5

During the same recorded interview, Schiele admitted to Childers that 

Schiele had falsely told Philp over the phone that the fire occurred in the morning. 

He said that he used the fire as his “excuse” for not reporting to Philp as instructed. 

Schiele also admitted to Childers that Philp had told him that an arrest warrant 

would issue if he did report to her in the meeting. 

Philp testified that Schiele had failed to report to her on February 6, the day 

before the fire. When Philp asked Schiele to explain his failure to report, Schiele 

told her that he left home to go to work, but his boss’s truck broke down, and that 

his other attempts to find a ride to meet Philp were unsuccessful. Philp told 

Schiele that the records from his electronic monitor showed something different—

that Schiele never left home on February 6. Schiele responded that the monitor 

must not have been working properly. Philp ended the conversation by telling 

Schiele to report to her in Huntsville at 10:00 a.m. the next day, February 7. She 

told Schiele that she would request a warrant for his arrest if he did not report to 

her on February 7 at 10 a.m. She also told him that she would request a warrant 

for his arrest if further investigation of his electronic monitor records confirmed 

that Schiele was falsely claiming to have left home on February 6. When Schiele 

failed to report on February 7 as instructed, Philp submitted a violation report, and 

a warrant issued around 1:11 p.m. that day. 
6

Jay Barbee, Polk County Fire Marshal and arson investigator, investigated 

the fire. Barbee testified that the origin of the fire was a pot that had been on the 

electric stove. Barbee estimated that the burner had to have been on for 30 to 45 to 

melt the sides of the pot. Barbee testified that he could not determine whether the 

burner had been left on intentionally and that there was no evidence that an 

accelerant was used to start the fire. 

James Booker, Schiele’s parole officer at the time of trial, sponsored the 

results of Schiele’s drug test, which showed that Schiele tested positive for 

methamphetamine two days after the fire. He also sponsored a document in which 

Schiele admitted in writing that he used methamphetamine on February 6, the day 

before the fire. 

Booker also told the jury about the records obtained from Schiele’s 

electronic monitoring system. They showed that Schiele’s home monitor was 

unplugged at 8:05 a.m. on February 7, the day of the fire. The system nevertheless 

continued to monitor Schiele’s entry and exit from his home due to a battery 

backup, about which officers do not tell parolees. Booker testified that the records 

showed that, on the day of the fire, Schiele left home at 9:29 a.m., returned at 

12:51 p.m., and left again at 1:14 p.m, approximately 15 minutes before Ray

reported the fire to 911.
7

Sandra Henderson, who lived nearby, testified that she was the owner of the 

home, and had rented it to Schiele’s wife, Lucas, since September 2011. 

Henderson testified that Lucas complained about bedbugs and roaches in January 

2012. Henderson was willing to pay for an exterminator to treat the home and told 

Lucas that they needed to schedule the extermination for a time when no one 

would be home, but she never heard anything else about it. 

Although Henderson occasionally had helped Lucas by caring for her 

children, driving her to life and career skills courses, and helping her organize her 

important documents into the red folder, Henderson ultimately posted an eviction 

notice around February 3, 2012, for unpaid rent. Henderson testified that on 

February 7, the day of the fire, she saw Lucas and her two children walking away 

from the home at 9:00 a.m., with Lucas carrying a large bag. 

Sufficiency of Evidence

In his first issue, Schiele contends that there was legally insufficient 

evidence to support his conviction because no direct evidence shows that he 

intentionally set the fire, and he presented evidence suggesting the fire was an 

accident and was extinguished when he left the home. 

A. Standard of Review

“When reviewing the sufficiency of the evidence, we consider all of the 

evidence in the light most favorable to the verdict to determine whether, based on 
8

that evidence and the reasonable inferences therefrom, a jury was rationally 

justified in finding guilt beyond a reasonable doubt.” Merritt v. State, 368 S.W.3d 

516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318–

19, 99 S. Ct. 2781 (1979)). “The jury is the sole judge of credibility and weight to 

be attached to the testimony of witnesses.” Id. Juries are permitted to draw 

reasonable inferences from facts as long as each is supported by the evidence 

presented at trial. Id. We determine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence 

when viewed in the light most favorable to the verdict. Id. at 526 (citing Hooper v. 

State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). We presume the jury 

resolved conflicting inferences in favor of the verdict and defer to that 

determination. Id. The standard is the same for both direct and circumstantial 

evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

B. Applicable Law 

As relevant in this case, a person commits arson if he “starts a fire, 

regardless of whether the fire continues after ignition, or causes an explosion with 

intent to destroy or damage any building, habitation, or vehicle knowing that it is 

located on property belonging to another.” TEX. PENAL CODE ANN.

§ 28.02(a)(2)(D) (West 2011). A person acts intentionally, or with intent, with 

respect to the nature of his conduct or to a result of his conduct when it is his 
9

conscious objective or desire to engage in the conduct or cause the result. TEX.

PENAL CODE ANN. § 6.03(a) (West 2011); Wise v. State, 364 S.W.3d 900, 903 

(Tex. Crim. App. 2012). 

C. Analysis

There was no dispute that Schiele’s actions caused the grease fire in the 

mobile home—the central issue in the case was whether he committed the actions

with the requisite intent. Intent is most often proven through circumstantial 

evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), 

overruled on other grounds, Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 

1992); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 

2003, pet. ref’d). And a jury may infer intent from any facts that tend to prove its 

existence, such as the acts, words, and conduct of the defendant. Hernandez, 819 

S.W.2d at 810; Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980); 

Dominguez, 125 S.W.3d at 761.

Here, the jury rationally could have inferred that Schiele intended to cause 

the fire from several of his actions before and immediately after the fire. First, the 

jury heard Schiele admit to Childers in the interview that Schiele did not report the 

fire to 911 despite the fact that the fire was significant enough to spread from the 

stove to a kitchen cabinet and cause a sore throat from smoke inhalation. Second, 

the jury heard and saw Schiele admit in the interview that he left the home and did 
10

not return, even after hearing sirens approach. The reason he proffered for not 

returning to the scene was that he did not want to “deal with” Henderson. Third, 

the jury could have rationally inferred that Schiele attempted to conceal his 

whereabouts on the day of the fire based on evidence that his electronic monitor 

was unplugged shortly after 8:00 a.m. See Guevara v. State, 152 S.W.3d 45, 50 

(Tex. Crim. App. 2004) (attempts to conceal incriminating evidence and 

implausible explanations to the police are probative of wrongful conduct and are

circumstances of guilt); Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 

1983) (conduct of a defendant subsequent to the alleged commission of a crime 

that indicates a consciousness of guilt is a circumstance tending to prove that the 

defendant committed the act with which he is charged); Ramirez v. State, No. 14-

07-00060-CR, 2008 WL 3931403, at *4 n.5 (Tex. App.—Houston [14th Dist.] 

Aug. 21, 2008, pet. ref’d) (mem. op., not designated for publication) (“Leaving the 

scene of a crime indicates a consciousness of guilt.”). 

The jury likewise rationally could have inferred intent from some of 

Schiele’s words. In his interview with Childers, Schiele admitted that he falsely 

told Philps that the fire started in the morning, before Schiele purported to have left 

for Huntsville for his 10:00 a.m. meeting with Philp. Schiele admitted to Childers 

that this was false, because, according to the account that Schiele gave Childers, 

the fire started at lunch time. Schiele also made a key admission about the reason
11

he told Philp this lie: he was trying to use the fire as an excuse for failing to report 

to her in Huntsville. This admission could have been damaging in the jury’s eyes 

because it dovetailed with the State’s theory of motive: Schiele intentionally set 

the fire to avoid having to report to Philp because he knew that reporting to Philp

would result in his failing a drug test (because he had used methamphetamine on 

February 6) and having his probation revoked. See Merritt, 368 S.W.3d at 526

(while not an element, motive can be a circumstance indicative of guilt); Temple v. 

State, 342 S.W.3d 572, 588 (Tex. App.—Houston [14th Dist.] 2010) (lying is a 

circumstance of guilt), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013).

Finally, Schiele’s account of when he left the home likewise could have 

been viewed by the jury as words tending to show intent. Schiele told Childers 

that approximately one hour passed between the time he and his family left home 

and the time he heard sirens. But his monitor showed that he left only 14 minutes 

before Ray reported the fire, and the evidence showed that authorities responded to 

the scene within 9 minutes of Ray’s report. Based on this evidence, the jury 

rationally could have inferred that Schiele was untruthful and attempting to conceal 

his whereabouts at the time of the fire. See Merritt, 368 S.W.3d at 527 

(considering evidence that appellant’s recollection of activities on evening of arson 

was contradicted by other evidence in sufficiency analysis).
12

Schiele argues that the evidence was insufficient because Barbee testified 

that he could not determine whether the fire was set intentionally, the State’s case 

was based only upon circumstantial evidence, and there was some evidence that he 

started the fire accidentally. But circumstantial evidence is just as probative as 

direct evidence and, in circumstantial cases, “it is not necessary that every fact and 

circumstance ‘point directly and independently to the defendant’s guilt; it is 

enough if the conclusion is warranted by the combined and cumulative force of all 

the incriminating circumstances.’” See Temple, 390 S.W.3d at 359 (quoting 

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Likewise, while 

Schiele correctly points out that there is some evidence that the fire was accidental, 

we rely on the jury to resolve conflicts in the evidence, and this is especially so in 

the context of credibility determinations. See Lancon v. State, 253 S.W.3d 699, 

705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury’s 

determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of 

the verdict).

Viewing the evidence in the light most favorable to the verdict, as we must,

we conclude that a rational jury could have convicted Schiele of arson. 

Accordingly, we hold that the evidence was legally sufficient to support the 

judgment. See Orr v. State, 306 S.W.3d 380, 394 (Tex. App.—Fort Worth 2010, 
13

no pet.) (evidence sufficient to support conviction for arson where appellant had 

motive, was present at the time of the fire, and gave implausible explanations about 

fire); Fitts v. State, 982 S.W.2d 175, 186 (Tex. App.—Houston [1st Dist.] 1998, 

pet. ref’d) (presence at the scene before the fire coupled with motive and 

opportunity is evidence tending to establish arson); Krebsbach v. State, 962 

S.W.2d 728, 734 (Tex. App.—Amarillo 1998, pet. ref’d) (evidence sufficient to 

support murder conviction where appellant had motive to set the fire, was present

in home as fire began, and made inconsistent statements about how she discovered 

fire).

We overrule Schiele’s first issue.

Evidentiary Issues in Guilt/Innocence

In his second through ninth issues, Schiele contends that the trial court 

abused its discretion in admitting evidence of several of Schiele’s bad acts. 

Specifically, Schiele argues that the trial court erred in admitting evidence that 

Schiele (1) was on parole, (2) failed to report to his parole officer the day before 

the fire and the day of the fire, (3) violated his parole by using a controlled 

substance the day before the fire and by disconnecting his electronic monitoring 

device the day of the fire, (4) lied to his parole officer about why he failed to report 

the day before the fire and the day of the fire, (5) was required to attend anger 
14

management classes, and (6) had violated parole obligations and had his parole 

revoked before February 6, 2012. 

A. Standard of Review

We review a trial court’s evidentiary rulings for an abuse of discretion. De 

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse 

a trial court’s ruling on evidentiary matters unless the decision was outside the 

zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007). If the trial court’s ruling can be justified on any theory of law 

applicable to that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d 

at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a 

trial court’s ruling on the admission of evidence is correct, although giving a

wrong or insufficient reason, this Court will not reverse if the evidence is 

admissible for any reason.”)).

B. Applicable Law

Evidence of extraneous crimes, wrongs, or acts is not admissible at the guiltinnocence phase “to prove the character of a person in order to show action in 

conformity therewith” but is admissible to prove other matters, such as “motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident” if the accused is given reasonable notice of the State’s intent to 

introduce the evidence. TEX. R. EVID. 404(b) (extraneous evidence must have 
15

probative value beyond character conformity to be admissible). The Court of 

Criminal Appeals has held that evidence of an appellant’s parole status is properly 

admitted under Rule 404(b) to show motive. Powell v. State, 189 S.W.3d 285, 289 

(Tex. Crim. App. 2006) (evidence defendant was on parole was admissible under 

Rule 404(b) for purpose of establishing defendant’s motive for evading arrest). 

Further, rebuttal of a defensive theory is also “one of the permissible purposes for 

which relevant evidence may be admitted under Rule 404(b).” Moses v. State, 105 

S.W.3d 622, 626 (Tex. Crim. App. 2003). 

“However, even if the evidence is relevant, and the purpose for which it is 

being offered is permissible under Rule 404(b), it may still be excluded by the trial 

court under Rule 403 if its probative value is substantially outweighed by the 

danger of unfair prejudice.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 387 

(Tex. Crim. App. 1990) (en banc)). Under a Rule 403 analysis, we consider: 

(1) the inherent probative force of the proffered item of evidence along with (2) the 

proponent’s need for that evidence against (3) any tendency of the evidence to 

suggest decision on an improper basis, (4) any tendency of the evidence to confuse 

or distract the jury from the main issues, (5) any tendency of the evidence to be 

given undue weight by a jury that has not been equipped to evaluate the probative 

force of the evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence already 
16

admitted.” Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 

2006). The trial court is presumed to have conducted the proper balancing test if it 

overrules a 403 objection, regardless of whether it conducted the test on the record. 

See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). 

C. Analysis

Here, the State offered the challenged evidence to prove that Schiele had a 

motive to and did set the fire intentionally. The fact that Schiele was on parole, 

failed to report to his parole officer on February 6 and February 7, was not truthful

about why he failed to report, tested positive for methamphetamine on February 9, 

which he admitted to using on February 6, and disconnected his electronic monitor 

on February 7 are all circumstances that demonstrate that Schiele had a motive to 

set the fire. See Merritt, 368 S.W.3d at 527 (while not an element, motive can be a 

circumstance indicative of guilt). Accordingly, the trial court did not err in 

concluding that this evidence was probative and admissible under Rule 404(b). 

See TEX. R. EVID. 404(b); Powell, 189 S.W.3d at 289 (evidence of appellant’s 

parole was admissible to show motive for evading arrest); 

Valdez v. State, 776 S.W.2d 162, 168 (Tex. Crim. App. 1989) (evidence of an 

outstanding federal parole warrant was admissible on the issue of defendant’s 

motive for shooting a police officer). 
17

We also conclude that the trial court did not abuse its discretion in 

overruling Schiele’s Rule 403 objection with respect to some of the challenged 

evidence. Specifically, evidence that Schiele was on parole, failed to report to 

Philp on February 6 and February 7, used methamphetamine on February 6, 

disconnected his electronic monitor on February 7, and lied to Philp about why he 

failed to report was admissible under Gigliobianco.

The first two factors—the probative value of the evidence and the State’s 

need for the evidence—weigh strongly in favor of admissibility. The evidence that 

Schiele was on parole at the time of the offense, failed to report, used 

methamphetamine on February 6, disconnected his electronic monitor, and lied 

about why he failed to report on February 6 is probative of motive and intent. The 

State needed the evidence to demonstrate why Schiele would have deliberately set 

his home on fire. See Powell, 189 S.W.3d at 289 (“there was reason to believe that 

the State had a significant need for the evidence” that appellant was on parole to 

show motive and contradict other evidence). 

Under the third factor, we examine the unfair prejudice, that is, the tendency 

of the evidence to suggest decision on an improper basis. Gigliobianco, 210 

S.W.3d at 641. Evidence might have this tendency “if it arouses the jury’s hostility 

or sympathy for one side without regard to the logical probative force of the 

evidence.” Id. Here, the evidence about Schiele’s parole likely harmed Schiele, 
18

but the risk of unfair prejudice was minimized somewhat because the jury did not 

learn the offense for which Schiele was on parole. See Powell, 189 S.W.3d at 289 

(risk of undue prejudice was minimized by the fact that jury was not told what 

crime led to parole status). This factor weighs against admissibility. 

In considering the fourth and sixth factors, we examine the tendency of the 

evidence to confuse or distract the jury from the main issues and the time required 

to develop the evidence. Gigliobianco, 210 S.W.3d at 641. “Evidence that 

consumes an inordinate amount of time to present or answer, for example, might 

tend to confuse or distract the jury from the main issues.” Casey v. State, 215 

S.W.3d 870, 880 (Tex. Crim. App. 2007). Here, the amount of time the State 

devoted to developing the evidence was not insignificant. The State presented the 

evidence through the live testimony of four witnesses—Schiele’s parole officers, 

Booker and Philp, the Polk County Sheriff’s Office dispatcher, Terry Valka, and 

the officer who conducted Schiele’s interview, Captain Childers. The witnesses’ 

testimony about Schiele’s parole spanned approximately 50 pages of the 118-page 

reporter’s record of the guilt and innocence phase of the trial. The State also 

presented a recording of Schiele’s eight-minute phone call with Philp and the 

interview by Childers. The interview video lasted approximately 24 minutes and 

the portions related to the parole lasted less than five minutes. Because a 

significant portion of the evidence related to the challenged evidence regarding 
19

parole, we conclude that the fourth and sixth factors weigh against admissibility. 

Cf. Blackwell v. State, 193 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2006, 

pet. ref’d) (factor neutral and favored neither admissibility nor exclusion of 

evidence where four witnesses’ testimony of extraneous offenses was not “unduly 

lengthy”). 

Under the fifth factor, we weigh any tendency of the evidence to be given 

undue weight by a jury that has not been properly equipped to evaluate the 

probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, the 

charge contained a limiting instruction.2

 Absent evidence to the contrary, a jury is 

presumed to follow the instruction set forth in the court’s charge. Herrera v. State, 

11 S.W.3d 412, 415–16 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). 

Further, the testimony relating to Schiele’s parole, interview video, and phone call 

recording were not scientific or technical in nature. Thus, “nothing suggests that 

the jury was not equipped to evaluate the probative force” of the evidence, and we 

conclude this factor weighs in favor of admissibility. See Moreno v. State, 409 

S.W.3d 723, 731 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (fifth factor 

 2 The charge instructed: “[E]ven if you find that the State has proven, beyond a 

reasonable doubt, the defendant’s guilt of these other offenses, wrongs, or acts, if 

any, you may only consider such evidence as evidence of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident, in 

relation to the offense for which defendant is on trial or to rebut a defensive theory 

of the case, and you may not consider these offenses, wrongs, or acts, if any, for 

any other purpose.” 
20

weighs in favor of admissibility where evidence was not technical or scientific in 

nature and was “comprehensible by laypeople”). 

In support of his argument that the probative value of this evidence was 

substantially outweighed by the danger of unfair prejudice under Rule 403, Schiele 

cites Powell v. State, 151 S.W.3d 646, 650–54 (Tex. App.—Waco 2004), rev’d, 

189 S.W.3d 285. But the Court of Criminal appeals reversed that Waco Court of 

Appeals decision as to the Rule 403 balancing test and held that the probative 

value of the evidence was not substantially outweighed by the danger of unfair 

prejudice. See Powell, 189 S.W.3d at 287–90. Accordingly, Powell does not 

support Schiele’s argument. See id. 

We conclude that three of the Gigliobianco factors weigh in favor of 

admissibility while three weigh against it. Accordingly, we conclude that the trial 

court did not abuse its discretion in admitting the following challenged evidence: 

that Schiele was on parole, failed to report to Philp on February 6 and February 7,

used methamphetamine on February 6, disconnected his electronic monitoring 

device on February 7, and lied to Philp about why he failed to report on February 6 

and February 7. See Powell, 189 S.W.3d at 289 (probative value of evidence was 

not substantially outweighed by danger of unfair prejudice where jury was not 

informed of crime for which appellant was on parole and State had significant need 
21

for evidence); Moses, 105 S.W.3d at 627 (trial court’s admission of extraneous 

offense evidence is reviewed for abuse of discretion). 

Our analysis of the remaining challenged evidence—that Schiele missed an 

anger management class on February 6 and had his parole revoked before February 

6, 2012—is different. With respect to this evidence, we conclude that even if it 

was error to admit it, the error would have been harmless in light of the other 

admissible evidence relating to parole discussed above. 

The jury considered evidence that Schiele was on parole at the time of the 

fire, failed to report to Philp on February 6 and February 7, used methamphetamine 

on February 6, disconnected his electronic monitoring device on February 7, and 

lied to Philp about why he failed to report on February 6 and February 7. We have 

held that the admission of this evidence was not an abuse of discretion. In light of

this other properly admitted evidence relating to parole, it is unlikely that the 

additional fact that Schiele missed an anger management class and previously had

his parole revoked would impact the jury’s decision. This is particularly true in 

light of Philp’s direct testimony that she warned Philp on February 6 that failing to 

report on February 7 would lead her to request an arrest warrant. See Davis v. 

State, 203 S.W.3d 845, 853 (Tex. Crim. App. 2006) (appellate court must 

determine whether erroneous admission of inadmissible hearsay “moved the jury 

from a state of non-persuasion to one of persuasion of a particular issue”); Motilla 
22

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (harmless error if jury’s 

decision likely was not adversely affected by the error); Wesbrook v. State, 29 

S.W.3d 103, 119 (Tex. Crim. App. 2000) (reviewing court considers probable 

impact of error on jury in light of existence of other evidence). 

We overrule Schiele’s second, third, fourth, fifth, sixth, seventh, eighth, and 

ninth issues.

Admissibility of Prior Conviction in Punishment Phase

In his tenth issue, Schiele contends that the trial court erred in admitting, 

during the punishment phase, evidence of a prior conviction for injury to a child

because the State failed to properly link the conviction to Schiele. 

A. Standard of Review and Applicable Law

To establish that a defendant has been convicted of a prior offense, the State 

must prove beyond a reasonable doubt that (1) the prior conviction exists, and 

(2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 

921 (Tex. Crim. App. 2007). “No specific document or mode of proof is required 

to prove these two elements.” Id. “There is no ‘best evidence’ rule in Texas that 

requires the fact of a prior conviction be proven with any document, much less any 

specific document.” Id. The State may prove these two elements by documentary 

proof, such as a judgment, that contains sufficient information to establish both the 
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existence of a prior conviction and the defendant’s identity as the person convicted. 

Id. at 922.

The trier of fact considers the totality of the evidence admitted and attempts 

to fit the evidentiary pieces of the puzzle together, weighing each piece’s 

credibility. Id. at 923. “Regardless of the type of evidentiary puzzle pieces the 

State offers to establish the existence of a prior conviction and its link to a specific 

defendant, the trier of fact determines if these pieces fit together sufficiently to 

complete the puzzle.” Id. If the two necessary elements “can be found beyond a 

reasonable doubt, then the various pieces used to complete the puzzle are 

necessarily legally sufficient to prove a prior conviction.” Id.

B. Analysis

During the punishment phase, the State offered exhibits to prove its 

enhancement allegations—a prior conviction for the felony offenses of burglary 

and retaliation—as well as to prove Schiele’s prior conviction for injury to a child

in Oklahoma. In support of Schiele’s prior conviction for injury to a child, the 

State offered: (1) a copy of the case summary, (2) a copy of the “plea of guilty 

summary of facts,” and (3) a copy of the judgment.

Schiele objected and argued that the copy of the case summary did not 

contain a fingerprint or thumbprint, the plea record was not a certified copy and 
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contained no thumbprint, and that the copy of the judgment was not a certified 

copy, was not a public record, and contained no thumbprint. 

But “[n]o specific document or mode of proof is required to prove these two 

elements,” see Flowers, 220 S.W.3d at 921, and we conclude that the trial court did 

not err in admitting the evidence about which Schiele complains. The copy of the 

case summary for the injury to a child case contains Schiele’s name, date of arrest, 

charged offense, judicial cause number, and disposition. The plea record contains 

Schiele’s name, birth date, the same judicial cause number as the case summary, 

and the last four digits of Schiele’s social security number. The judgment contains 

Schiele’s name, birth date, the same judicial cause number as the case summary 

and plea record, and the same last four digits of Schiele’s social security number as 

the plea record. Further, Lucas, Schiele’s wife, testified that Schiele was arrested 

for injury to a child in Oklahoma and that the plea record states the charged offense 

and the date of the arrest, which matches the date on the case summary.

Additionally, the trial court admitted penitentiary packets (“pen packs”) containing 

documents from the Texas Department of Criminal Justice. The pen packs include 

documents relating to Schiele’s other prior convictions and include Schiele’s name 

and birth date, which match the case summary, plea record, and judgment for his 

injury to a child conviction. Based on the totality of the evidence, we hold that the 

State produced evidence from which the jury rationally could link Schiele to the
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injury to a child conviction beyond a reasonable doubt. See Flowers, 220 S.W.3d 

at 921 (certified copy of computer printout from county clerk setting out prior 

conviction with cause number and appellant’s name, date of birth, address, and 

social security number matching exhibit containing appellant’s official driver’s 

license record was sufficient to prove existence of appellant’s prior conviction); 

Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th Dist.] 2010, pet. 

ref’d) (factfinder considers totality of evidence to determine whether State proved 

prior conviction beyond a reasonable doubt). Accordingly, the evidence is legally 

sufficient to prove the prior convictions and enhancement allegation.

We overrule Schiele’s tenth issue. 

Conclusion

We affirm the trial court’s judgment. 

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Higley, and Huddle.

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