COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00177-CR

DONALD RAY SPARKS, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1268922R

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MEMORANDUM OPINION1

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Appellant Donald Ray Sparks, Jr. appeals his conviction for murder. In five 

issues, Sparks argues that the trial court erred by admitting extraneous-offense 

 

1See Tex. R. App. P. 47.4.
2

evidence, by denying his motion for a mistrial, and by denying his request for a 

limiting instruction. We will affirm.2

Brittany left her house to go to work at around 8:00 p.m. on April 28, 2010.

Sparks had been at Brittany’s house all day and agreed to watch her four young

children until Mar’sha, Brittany’s friend, finished attending church and could come

over to relieve him.

Mar’sha headed to Brittany’s house sometime around 9:00 p.m. and 

discovered that an iron screen door, which was usually unlocked, was locked. 

After speaking to Brittany on the cell phone, Mar’sha knocked on a bedroom 

window and told Brittany’s son Brian,3 who had opened the curtain, to open the 

door. Sparks, who was sweaty and not wearing a shirt, opened the door. He 

said nothing to Mar’sha and went to Brittany’s bedroom.

Mar’sha proceeded to the children’s bedroom and saw Brian and two of 

Brittany’s daughters but not B.N., Brittany’s two-year-old daughter. Mar’sha then 

went to Brittany’s bedroom and found B.N. lying face down on the bed, naked

and covered with a towel. Sparks was standing by the closet; he said nothing to 

Mar’sha and did not seem upset. Mar’sha thought that B.N. was asleep, and she 

put underwear on B.N. and picked her up. When Mar’sha did that, she noticed

that B.N. was limp and unresponsive, that her eyes were rolled back, and that 

 

2

This cause was assigned for writing to the author on January 31, 2014.

3We use an alias to protect the minor’s identity. See Tex. R. App. P. 

9.10(a)(3); 2nd Tex. App. (Fort Worth) Loc. R. 7.
3

she had a bruise on her head, by her temple. Sparks told Mar’sha that the 

children were playing in the room and that B.N. had hit the side of her head on 

the bed. He also said that he had put B.N. in the bathtub to keep her awake but 

that she had slipped and hit her head again. Sparks had not called Brittany or an 

ambulance. Mar’sha, however, spoke to Brittany and called 911.

The fire department arrived at Brittany’s house at approximately 9:40 p.m.,

shortly before an ambulance and the police arrived. One of the firefighters who 

attended to B.N. noticed that she had bruising on her left forehead, right temple, 

right cheek, upper chest, and abdomen and on both arms and legs and that there 

were several small piles of bloody vomit on the floor near her. Sparks, who was 

in the living room chain smoking, told the firefighter the same thing that he had 

told Mar’sha—that B.N. had hit her head twice. B.N.’s condition was 

deteriorating rapidly, and during the ambulance ride to Cook Children’s Medical 

Center, responders noticed that the bruises on her head and abdomen had 

become darker.

At the hospital, a CT scan revealed that B.N. had sustained several 

abdominal injuries—her inferior vena cava (one of the largest veins in the body)

was lacerated and actively bleeding, her liver was lacerated and actively 

bleeding, and her pancreas and spleen were damaged. B.N.’s abdomen became

distended, and when physicians performed surgery on her, she arrested three 

times and had her blood volume replaced four or five times. After surgery, a 
4

pediatric nurse who examined B.N. noted that she had significant bruising on her 

genitals.

Meanwhile, when police returned to Brittany’s house at approximately 

10:50 p.m., they discovered Sparks cleaning it; trash bags were filled and the 

washing machine was running with only a few articles of children’s and adult’s 

clothing inside. Detectives interviewed Sparks three times, and he consistently 

recalled that B.N. had hit her head twice, even after being informed that B.N. had 

sustained traumatic abdominal injuries.

B.N. died approximately twenty-six hours after arriving at the ER. A grand 

jury later indicted Sparks for capital murder. At trial, the ER physician who 

performed surgery on B.N. testified that she had experienced severe blunt force 

trauma to her abdomen from her front side. Similarly, the physician who 

performed B.N.’s autopsy concluded that although B.N. had sustained several 

subarachnoid hemorrhages, those injuries to her head were not fatal; her death 

was caused by “internal hemorrhage associated with shock due to blunt trauma 

to the abdomen.” The nurse who examined B.N. after her surgery testified that 

there was no way her injuries were accidental. The jury convicted Sparks of 

murder and assessed his punishment at ninety-nine years’ confinement.

Sparks argues in his second, third, and fourth issues that the trial court 

abused its discretion by admitting evidence that B.N. had sustained injuries to 

her thigh and genitals. He contends that the “clear implication” of those injuries 

was that B.N. had been sexually assaulted, and because the indictment 
5

contained no allegation of sexual assault, the testimony constituted evidence of 

an inadmissible extraneous offense, which was not admissible as sametransaction contextual evidence, as an exception to rule 404(b), or under rule 

403.

We review the trial court’s admission of evidence for an abuse of 

discretion. Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort Worth 2014, pet. 

ref’d); see Montgomery v. State, 810 S.W.2d 372, 390‒91 (Tex. Crim. App. 1991) 

(op. on reh’g). The trial court’s ruling will be upheld as long as it falls within the 

“zone of reasonable disagreement” and is correct under any theory of law 

applicable to the case. Kirk, 421 S.W.3d at 782.

Same-transaction contextual evidence is evidence reflecting the context in 

which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. 

Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). It is a recognition that 

events do not occur in a vacuum, and a jury has a right to hear what occurred 

immediately before and after the offense in order to realistically evaluate the 

evidence. Id. Extraneous offenses may be admissible as same-transaction 

contextual evidence when several crimes are intermixed, or blended with one 

another, or connected so that they form an indivisible criminal transaction. Prible 

v. State, 175 S.W.3d 724, 731‒32 (Tex. Crim. App.), cert. denied, 546 U.S. 962 

(2005). This type of evidence results when an extraneous matter is so 

intertwined with the State’s proof of the charged offense that avoiding reference 

to it would make the State’s case incomplete or difficult to understand. Id. at 732.
6

Under rule 404(b), evidence of an accused’s “other crimes, wrongs or acts 

is not admissible to prove the character of a person in order to show conformity 

therewith.” Tex. R. Evid. 404(b). Evidence of extraneous acts “may, however, 

be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Id.

Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if 

its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue 

delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.

The evidence that B.N. sustained trauma to her thigh and genitals was 

admissible as same-transaction contextual evidence. B.N. suffered injuries to 

numerous parts of her body, including her head, arms, abdomen, and buttocks. 

The injuries that she simultaneously sustained to her thigh and genitals served to 

inform the jury of both the full extent of her injuries and of the complete facts 

surrounding Spark’s criminal conduct, both of which the jury had a right to know 

and to evaluate as part of its responsibility as the factfinder. At no point during 

the trial did the State intentionally elicit any evidence, or even imply, that a 

sexually-related offense had occurred.

4

 

4

Indeed, at the hearing outside of the jury’s presence in which the trial 

court considered the admissibility of the evidence, the State confirmed that it 

“intend[ed] to discuss these [injuries] as physical injuries. Don’t intend to use 

anything about the term ‘aggravated sexual assault’ or ‘sexual assault.’”
7

The evidence was also admissible to show that B.N.’s injuries were not

sustained accidentally. See Tex. R. Evid. 404(b). Sparks elicited testimony from 

the physician who performed B.N.’s autopsy that her abdominal injuries could 

have been caused by children jumping on her abdomen. On redirect, however, 

the physician confirmed that the injuries to B.N.’s genitals could not have been 

caused by children jumping on her abdomen. Thus, the complained-of evidence 

was additionally admissible to demonstrate the absence of accident. See id.

For all of these reasons, we also hold that the probative value of the 

evidence that B.N. sustained injuries to her thigh and genitals was not 

substantially outweighed by the danger of unfair prejudice or any other rule-403 

concern. See Tex. R. Evid. 403; Gigliobianco v. State, 210 S.W.3d 637, 641‒42 

(Tex. Crim. App. 2006) (identifying balancing analysis). We overrule Sparks’s 

second, third, and fourth issues.

In his first issue, Sparks argues that the trial court erred by denying his 

motion for a mistrial. The trial court granted a motion in limine at the outset of the 

trial regarding the evidence that B.N. had sustained injuries to her thigh and 

genitals. Before the trial court ruled that the evidence was admissible, Brittany 

gave the following testimony in response to the State’s question asking her what 

Sparks had told her on the telephone when she was at the hospital:

He said that they was trying to make it look like -- well, they were 

saying that he did it. He told me that they told him that she had 

been raped, and he said he told them they can take his DNA. And 

then he said, “They almost had me,” and then he paused, and he 

was like, “They going to hang me for this.” [Emphasis added.]
8

The prosecutor apologized to the trial court and explained that she had not 

intended to elicit Brittany’s comments about rape. Sparks said that he did not 

want to ask for an instruction to disregard because it would have done nothing 

other than draw additional attention to the testimony, and he moved for a mistrial.

We review the trial court’s ruling on a motion for mistrial for an abuse of 

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A 

mistrial is the trial court’s remedy for improper conduct that is so prejudicial that 

expenditure of further time and expense would be wasteful and futile. Id. When 

a defendant moves for a mistrial without first requesting an instruction to 

disregard, as occurred here, he will obtain reversal only if the error could not 

have been cured by an instruction to disregard. Young v. State, 137 S.W.3d 65, 

70 (Tex. Crim. App. 2004).

Considering Brittany’s testimony and the circumstances surrounding it, we 

cannot conclude that it was “so clearly calculated to inflame the minds of the jury”

or that it was “of such damning character as to suggest it would be impossible to 

remove the harmful impression from the jury’s mind.” Kemp v. State, 846 S.W.2d 

289, 308 (Tex. Crim. App. 1992) (stating that it is well settled that testimony 

referring to extraneous offenses can be rendered harmless by an instruction to 

disregard). Thus, contrary to Sparks’s opinion at trial, Brittany’s uninvited 

testimony was not so prejudicial that it could not have been cured by an 

instruction to disregard, had one been requested. See id. Moreover, as the 
9

State points out, to the extent that Sparks thought Brittany’s testimony violated 

the motion in limine, the evidence that was the subject of that order was 

admissible as same-transaction contextual evidence and to rebut Sparks’s 

defensive theory of accident, as we already explained. We hold that the trial 

court did not abuse its discretion by denying Sparks’s motion for a mistrial, and 

we overrule his first issue.

Sparks argues in his fifth issue that the trial court erred by not giving the 

jury a limiting instruction when the State elicited testimony that B.N. had

sustained injuries to her thigh and genitals.5 No instruction was required 

because the evidence was admissible as same-transaction contextual evidence. 

See Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011) (“This Court 

has held that a limiting instruction is not required when evidence is admitted as 

same-transaction contextual evidence.”). We overrule Sparks’s fifth issue.

Having overruled all of Sparks’s issues, we affirm the trial court’s 

judgment.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 31, 2014

 

5

The trial court included a limiting instruction in the jury charge on guilt.