### IN THE TENTH COURT OF APPEALS No. 10
- 22
- 00001
- CR CHRISTOPHER DWAYNE SIMPSON , Appellant v. THE STATE OF TEXAS , Appellee

From the 249th District Court Johnson County, Texas Trial Court No. DC
- F201900866

MEMORANDUM OPINION
Appellant, Christopher Dwayne Simpson, was convicted of burglary of a
habitation. See T EX
. P ENAL C ODE A NN
. § 30.02(c)(2). After fin ding an enhancement paragraph to be true, the jury sentenced Simpson to twelve years in prison with no fine or restitution. On appeal, Simpson contends that the trial court erred by admitting
evidence of two prior convictions for misdemeanor assault causi ng bodily injury asSimpson v. State Page 2

impeachment evidence. Because we conclude that Simpson was not harmed by the admission of this evidence, we affirm. Analysis In his sole issue on appeal, Simpson argues that the trial court erred by admitting evidence of his two prior convictions for misdemeanor assault causing bodily injury. Specifically, Simpson asserts that the evidence should not have been admitted under
Te xas Rule of Evidence 609 because the State failed to show that these prior convictions were felonies or involved moral turpitude. See T EX
. R. E VID
. 609. The State agrees that the requisites of Rule 609 were not met but contends that any error associated with the
admission of the evidence was harmless. Assuming, without deciding, that the trial court erred by admi tting evidence of Simpson’s two prior misdemeanor assault convictions, we cannot say that Simpson was
harmed. Because admission of evidence is subject to non

- constitutional error analysis, we evaluate whether Simpson’s substantial rights were affected. T EX
. R. A PP
. P. 44.2(b). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Schmutz v. State , 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). A criminal conviction should not be overturned for non

- constitutional error if, after examining the record as a whole, this Court has fair assurance that the error
did not influ ence the jury, or had but a slight effect. Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In this analysis, we consider “everything in the record, includingSimpson v. State Page 3

any testimony or physical evidence admitted for the jury’s consideration, the natu re of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.” Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We also consider the jury instructio n given by the trial court, the State’s theory, any defensive theories, closing argument, and even voir dire, if material to Simpson’s claim. Id. Considering the record as a whole, we hold that the trial court’s purported error in admitting evidence of S impson’s two prior misdemeanor assault convictions did not have a substantial and injurious effect or influence on the jury’s verdict. Simpson was only briefly questioned about the convictions, and he testified that he did not remember
those convictions. No other evidence was introduced regarding these convictions.
Further , after Simpson volunteered that he had a prior conviction for aggravated robbery for which he served five years in prison, the State questioned Simpson about his prior
convictions for possession of a controlled substance in 2013, retaliation against a witness in 2016, indecent exposure in 2018, and theft in 2019. Simpson could not recall several of his prior convictions, but he did admit to serving time in prison for the indecent

expos ure, theft, and possession

- of

- a - controlled

- substance convictions. The State used Simpson’s prior convictions to rebut Simpson’s insanity defense. This was highlighted when the State asked Simpson if he had been found criminally insane in any of his prior criminal cases, and Simpson responded that he had not and that he knows what he isSimpson v. State Page 4

doing. Additionally, the prosecutor did not emphasize Simpson’s two prior misdemeanor assault convictions, and immediately at the conclusion of Simpson’s testimony, the trial judge provided an extraneous

- offense instructio n prohibiting the jury from considering any of Simpson’s prior convictions for any purpose. 1 See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (noting that we presume that the jury follow ed the trial court’s instructions). Moreover, the evidence against Simpson included testimony that Simpson entered a residence that he previously owned , but had been foreclosed on by the bank and re

purchased by someone else, and stole a bicycle belonging to the homeowner’s special

needs son. Despite alleging that he owned the house and the bicycle , Simpson acknowledged that h e entered the residence through the front window. Documents
admitted at trial established that Simpson did not own the residence a t the time of the incident, and the homeowner indicated that he did not know Simpson and that Simpson

1 The trial court’s extraneous

- offense instruction provided the following: Okay. Ladies and gentlemen of the Jury, at this time the Court will read to you the following instruction: The State has introduced evidence of extraneous matters other than the o ne charged in this indictment. You are instructed that said evidence was admitted only for the purpose of showing intent, motive, plan, purpose, scheme, design, or preparation, if any, and for no other purpose. You are further charged that if there is an y evidence before you in this case tending to show that the Defendant committed the extraneous transactions, you cannot consider said evidence for any purpose unless you first find and believe beyond a reasonable doubt that the Defendant committed said ext raneous transactions. If you find and believe beyond a reasonable doubt from such evidence that the Defendant committed the extraneous transactions, you may then consider the same for the purpose for which it was introduced, namely, as evidence of intent, motive, plan, purpose, scheme, design, or preparation. . . .Simpson v. State Page 5

did not have the consent of the homeowner to enter the residence and take any property. Given the above, it is not apparent from the record that the jury placed any measurable significance on Simpson’s two prior misdemeanor assault convictions. Accordingly, we conclude that the trial court’s purported error was harmless. We overrule Simpson’s sole issue on appeal. Conclusion We affirm the judgment of th e trial court.

STEVE SMITH Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed November 30, 2022 Do not publish [C R25 ]