In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00206-CR __________________
DANIELLE PATRICE WOODARD, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 19-10-13313-CR __________________________________________________________________
MEMORANDUM OPINION
A jury convicted Danielle Patrice Woodard of aggregate theft. See Tex. Penal
Code Ann. § 31.03(e)(7). In four issues on appeal, Woodard contends we should
reverse her conviction because (1) the trial court didn’t charge the jury with her
affirmative defense, resulting in egregious harm, (2) the trial court abused its
discretion by allowing the State to present inadmissible extraneous character
evidence, (3) the jury charge contains an improper comment on the weight of the
evidence that suggests to the jury the trial judge believed Woodard was guilty of the
1 charged offense, and (4) the trial court abused its discretion by taking judicial notice
of her motion for continuance and admitting the motion with the attached results of
Woodard’s COVID-19 test. For the reasons discussed below, we affirm the trial
court’s judgment.
BACKGROUND
A grand jury indicted Woodard for aggregate theft. The indictment alleges
that pursuant to one scheme or continuing course of conduct beginning on or about
October 11, 2012, and continuing until on or about August 22, 2016, Woodard
unlawfully appropriated funds having an aggregate value of more than $200,000
with the intent to deprive the owner of the property. 1
The indictment contained two enhancement paragraphs. In Paragraph A, the
grand jury stated that, on August 19, 2009, under the name of Danielle Patrice
Cormier, Woodard was convicted of felony theft in the 230th District Court, Harris
County, Texas, in cause number 1109916 and that conviction became final prior to
the commission of the offense mentioned in Count I of the indictment. In Paragraph
1Under a version of the statute in force at the time, the offense was a first-
degree felony when the aggregated property value was $200,000 or more. See former Tex. Penal Code Ann. § 31.03(e)(7). In 2015, the legislature amended the monetary value for theft. The value for first-degree felony theft was increased from $200,000 or more to $300,000 or more. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 31.03, 1993 Tex. Gen. Laws 3586, 3638, amended by Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 10, sec. 31.03(e), 2015 Tex. Gen. Laws 4208, 4213 (codified at Tex. Penal Code Ann. § 31.03(e)(7)). 2 B, the grand jury stated that on August 19, 2009, Danielle Patrice Woodard was
convicted of felony credit/debit card abuse in the 230th District Court, Harris
County, Texas in cause number 1000696 and that conviction became final prior to
the commission of the offense alleged in Count I of the indictment.
The testimony at trial showed that in May 2010, Woodard began working at
Prime Lawn after the company’s owner, Michael, hired her. 2 Her initial duties
included answering the phones, scheduling appointments, data entry, and running
the offices. Woodard was also responsible for handling questions about accounts,
vendor payments, and checks.
In August 2016, Michael’s wife received a phone call from John Deere,
informing them that Prime Lawn’s account was 247 days past due. Based on the
conversation with the John Deere representative, Michael’s wife suspected that
Woodard was stealing from Prime Lawn. The couple contacted the police, whose
investigation revealed that Woodard’s theft transactions had cost the company
$358,153.96 over a period of four years.
Certified fraud examiner Erin Smith testified that Woodard engaged in three
“schemes” to steal from Prime Lawn. In the first scheme, Woodard wrote
2We refer to the victim referred to in this opinion using a pseudonym to protect
his identity. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 3 unauthorized checks to herself and electronically transferred company cash into her
own bank accounts. She then deleted the transactions from the QuickBooks
accounting program used by the company. In the second scheme, Woodard used
Prime Lawn funds to pay for goods and services for herself, her associates, or other
businesses. For example, she made purchases at Nordstrom and made payments on
her Nordstrom charge account; paid insurance on her vehicle and her boyfriend,
Claude Johnson’s, vehicle; paid her student loans; paid Gerber Life Insurance for an
insurance policy on her young daughter; paid for Humana health insurance for
herself and Claude Johnson, even though Prime Lawn did not offer Humana
Insurance; paid for a down payment for a BMW; paid rent for her brother, Dante
Cormier; and paid rent for Carl LeBlanc, her other brother. The third scheme was
described as “skimming,” in which Woodard altered a check received from a Prime
Lawn customer and deposited the money in her own bank account.
Woodard prevented Michael from learning of her schemes in multiple ways.
For instance, she systematically deleted unauthorized transactions from Prime
Lawn’s QuickBooks accounting program. She also opened new Prime Lawn credit
card accounts without Michael’s consent. Woodard posed as Michael on email
communications with vendors. Moreover, Woodard obtained administrator
privileges on the Verizon phone account and blocked business numbers in Michael’s
phone.
4 At trial, the defense presented a defense of consent, claiming there was an
intimate relationship between Woodard and Michael. Woodard testified that her
relationship with Michael developed over time, and in 2011, they began a sexual
affair. Dante Cormier testified that he saw Michael and Woodard “[k]issing” and
“touching” “[i]n the office” when no one else was there, as well as seeing Michael
touch Woodard on “the butt.”
Woodard testified that Michael agreed to pay for her apartment, her utilities,
and health insurance. She also testified that Michael approved for Woodard to pay
for Dante’s apartment. Woodard claimed that Michael was aware that she made
purchases at Nordstrom with Prime Lawn money, and he was “fine” with those
purchases and “would kind of laugh it off.” Similarly, Woodard admitted using the
Prime Lawn account to pay for her brother’s baby shower because she asked
Michael.
Woodard acknowledged that her relationship with Michael started to
“decrease” in the 2013-2014 period because she began dating another man, Claude
Johnson. Despite having a child with Claude in 2014, Woodard testified that her
Lexus was paid for using a Prime Lawn account, a fact that she did not try to hide
from Michael.
In rebuttal, Michael denied having a sexual relationship or any kind of
intimate relationship with Woodard. He denied giving Woodard permission to do
5 whatever she wanted with Prime Lawn funds. Michael’s wife said that she did not
find any inappropriate e-mails, texts, or behavior between Michael and Woodard.
Investigator Smith also testified that after reviewing the records in the case, there
was “nothing there but a business relationship.”
The State also introduced evidence and testimony pertaining to Woodard’s
prior felony credit/debit card abuse and theft convictions in both its case-in-chief
and during its rebuttal. Woodard had previously been fired from a Marriott hotel
position for misusing guests’ credit card information and was again caught stealing
through a credit card when she was an employee at La Quinta. However, on her
application with Prime Lawn, Woodard represented that she had no criminal history.
Additionally, the State offered a motion for continuance with the results of
Woodard’s COVID-19 test after Woodard admitted she has altered documentation
in the past. Upon questioning, Woodard admitted to altering the COVID-19 test
result from negative to positive, which resulted in the court granting a continuance.
The jury charge contained no affirmative defenses. The jury subsequently
returned a verdict finding Woodard guilty of the offense of theft of property greater
than $200,000. Woodard pled guilty to the allegation in Enhancement Paragraph A
in the indictment and the jury sentenced Woodard to twenty-five years confinement.
6 ANALYSIS
In issue one, Woodard complains the trial court erred by refusing to instruct
the jury on the affirmative defense of mistake of fact. See id. § 8.02. Woodard argues
that due to her romantic relationship with Michael, she believed the transactions
were consented to by Michael. Acknowledging that “defense counsel did not request
the defensive instruction or object to the charge,” Woodard asks this Court to
determine that the failure to instruct egregiously harmed her. See, e.g., Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g) (concluding that
if proper jury charge objection is not made at trial, reversal is proper only for
“egregious harm”).
In effect, Woodard contends that the trial court was required to submit the
instruction sua sponte and the failure to do so was erroneous. See Tex. Code Crim.
Proc. Ann. art. 36.14 (providing that the trial court shall deliver to the jury “a written
charge distinctly setting forth the law applicable to the case”). The “duty to instruct
on law applicable to the case exists even when defense counsel fails to object to
inclusions or exclusions in the charge,” and may require a trial court to provide the
jury with law applicable to the case sua sponte. Taylor v. State, 332 S.W.3d 483, 486
(Tex. Crim. App. 2011). Unless a particular statute places a sua sponte duty on the
trial court to give such an instruction, the trial court generally need not do so because
an unrequested defensive issue is not “the law ‘applicable to the case.’” Tex. Code
7 Crim. Proc. Ann. art. 36.14; see Vega v. State, 394 S.W.3d 514, 518–19 (Tex. Crim.
App. 2013) (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998));
Oursbourn v. State, 259 S.W.3d 159, 178–80 (Tex. Crim. App. 2008). Instead, a
defendant must timely request the issue or object to the omission of the issue in the
jury charge. Taylor, 332 S.W.3d at 487; Posey, 966 S.W.2d at 62.
Woodard did not request that the trial court include a jury instruction on the
mistake-of-fact defense. Absent that request, she cannot demonstrate error in the
charge. See Vega, 394 S.W.3d at 519; Posey, 966 S.W.2d at 61–62; see also Tex. R.
App. P. 33.1(a) (requiring complaint to be preserved in the trial court by a timely
request, objection, or motion). We overrule her first issue.
In issue two, Woodard complains the trial court erred by allowing the State to
present inadmissible extraneous character evidence. At trial, the State offered the
judgments of two prior convictions. One conviction was for felony theft. The other
was for the state jail felony offense of credit/debit card abuse.
Outside the presence of the jury, the State offered Woodard’s prior
convictions for credit card abuse and theft to rebut the defensive theory that she had
Michael’s consent. Defense counsel objected “that any probative value is
outweighed of unfair prejudice confuse the issues of the jury [sic].” The trial court
did not make a ruling at that time, but subsequently conducted independent legal
research. Based on her research, the trial court concluded that the prior convictions
8 were admissible to “negate the defensive theory to show intent, specifically, motive
and a lack of mistake. And maybe a plan or some type of design.”
When the State offered the pen packet containing the prior judgments of
conviction, defense counsel only re-urged his “previous objection relating to the
history of the Defendant.” The trial court overruled the objection and admitted the
convictions into evidence.
On appeal, Woodard complains that her prior felony convictions were
inadmissible under Texas Rule of Evidence 609(b) and under Texas Rules of
Evidence 403 and 404(b). See Tex. R. Evid. 403, 404(b), and 609(b). Yet,
preservation of a complaint for appellate review under Texas Rule of Appellate
Procedure 33.1(a)(1)(A) requires a timely, comporting objection in the trial court.
Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also Tex. R. App.
P. 33(a)(1)(A). Here, defense counsel raised no objection to the passage of time since
her convictions for credit card abuse and felony theft, did not mention Rule 609, or
complain about the remoteness of the convictions. Although Woodard filed a motion
in limine to require the trial court to hold a hearing outside the presence of the jury
to determine whether those convictions were so remote that they are inadmissible
under Rule 609(b), a motion in limine does not preserve error. Martinez v. State, 98
S.W.3d 189, 193 (Tex. Crim. App. 2003). Because Woodard did not raise a Rule
609(b) objection, she has failed to preserve error. See id.
9 Woodard did, however, preserve her Rule 403 objection. Relying on Rule 403,
Woodard argues that the probative value of the evidence and testimony pertaining
to her prior convictions was not substantially outweighed by the danger of unfair
prejudice, confusing the issues, and misleading the jury. We review a trial court’s
admission of extraneous offenses or acts under an abuse of discretion standard.
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We must uphold the
trial court’s ruling if it is within the zone of reasonable disagreement. Wheeler v.
State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citation omitted).
Generally, evidence of a crime, wrong, or other act is inadmissible to show
bad character and that a defendant acted in conformity with that bad character. See
Tex. R. Evid. 404(b)(1). However, extraneous-offense evidence may be admissible
for other purposes, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. See id. 404(b)(2);
Moses, 105 S.W.3d at 626. Extraneous-offense evidence is also admissible to rebut
a defensive theory. See Moses, 105 S.W.3d at 626 n.4 (citations omitted) (noting
such evidence is often admitted to rebut a defensive theory). “A defensive theory
may be raised through voir dire, opening statements, or cross-examination.” Donald
v. State, 543 S.W.3d 466, 482 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(citing Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016) (opening
10 statements and voir dire); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)
(opening statement); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1997)
(op. on reh’g) (cross-examination)).
Even if extraneous-offense evidence is admissible for some other purpose
apart from showing character conformity, the trial court may still exclude the
evidence if the probative value is substantially outweighed by the risk of unfair
prejudice. See Tex. R. Evid. 403; see also Moses, 105 S.W.3d at 626. “Rule 403
favors the admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798,
806 (Tex. Crim. App. 2010) (citation omitted).
The Court of Criminal Appeals sets out a non-exclusive list of factors that we
should consider when determining whether the probative value of a prior conviction
outweighs its prejudicial effect, including:
(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 admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote
omitted).
11 On appeal, Woodard complains that the trial court did not conduct a Rule 403
balancing test. Once a Rule 403 objection as to the prejudice versus probative value
is invoked, the trial court has no discretion whether to engage in the balancing test
required by that rule. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App.
1997). However, the trial court is not required to place any findings it makes or
conclusions it draws on the record when engaging in the balancing test, and the trial
court is presumed to engage in the required balancing test once Rule 403 has been
invoked. Id. at 195–96. The appellate record does not affirmatively show that the
trial court refused to conduct a Rule 403 balancing test. We presume the trial court
engaged in a balancing test before admitting the evidence. See id. at 195.
Given these facts, the trial court’s decision was within the zone of reasonable
disagreement. See Wheeler, 67 S.W.3d at 888. Thus, it did not abuse its discretion
by admitting evidence of Woodard’s prior credit card abuse and theft convictions.
Moses, 105 S.W.3d at 627; Montgomery, 810 S.W.2d at 391. “When a defendant
claims his act was free from criminal intent, extraneous offenses are relevant to
prove guilty intent.” Bradshaw v. State, 65 S.W.2d 232, 236 (Tex. App.—Waco
2001, no pet.). The testimony regarding the prior credit card abuse and theft was
probative to rebut Woodard’s theory that she had consent to the transactions because
of the sexual relationship between her and Michael. The prior convictions also
demonstrated that Woodard had a practice of using her employment to make
12 unauthorized expenditures for her own benefit. This testimony strengthened the
State’s showing of intent, motive, and lack of mistake. The presentation of the
convictions did not consume an inordinate amount of time and was not repetitive of
evidence already admitted.
Although “an extremely similar extraneous offense always carries the
potential to impress the jury of a defendant’s character conformity,” such inference
“can be minimized through a limiting instruction.” Lane v. State, 933 S.W.2d 504,
520 (Tex. Crim. App. 1996). Woodard was protected from the misuse of evidence
because the trial court instructed the jury concerning the use of this, or any
extraneous offense evidence. Jurors were told the evidence could only be used if
they were persuaded beyond a reasonable doubt that Woodard actually committed
the wrongful acts, and even then, they could consider the evidence only in
determining Woodard’s motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident in connection with the charged offense
and for no other purpose. We overrule Woodard’s second issue.
In her third issue, Woodard complains that the jury charge contains an
implicit, yet direct, improper comment on the weight of the evidence that suggests
to the jury that the trial judge believed Woodard was guilty of the charged offense.
Specifically, Woodard asserts that the option of “guilty” above “not guilty” in the
charge constitutes an implicit improper comment on the weight of the evidence.
13 Our review for charge error requires we first determine whether error exists.
Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). If error is found, we
then determine whether the error caused sufficient harm to require reversal. Id.
Assuming without deciding that Woodard properly preserved error, we
conclude that Woodard has not demonstrated error in the trial court’s verdict form.
In the charge, the trial court properly instructed the jury about the presumption of
innocence, including Woodard’s right to produce no evidence and the State’s burden
to prove each element of the charged offense beyond a reasonable doubt. Absent
such proof, the jury was further instructed that it was obligated to acquit Woodard.
We presume the jury followed the trial court’s instructions in the manner they were
presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). The
presumption that the jury followed the trial court’s instructions is rebuttable, but
Woodard has pointed to no evidence that the jury ignored the trial court’s
instructions or that an erroneous instruction in the charge influenced the jury’s
verdict. See id. Likewise, other courts have rejected an argument like the one
Woodard makes here, concluding that the placement of “guilty” before “not guilty”
in an otherwise proper verdict form does not indicate the trial court holds a bias or
is attempting to influence the jury to vote in a particular way. See Joshua v. State,
507 S.W.3d 861, 864–65 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (collecting
cases). We overrule Woodard’s third issue.
14 In her fourth issue, Woodard complains that the trial court abused its
discretion by taking judicial notice of the defense’s motion for continuance and
admitting the motion with the attached results of her COVID-19 test into evidence,
arguing that Texas Rules of Evidence 201 only permits a trial court to take judicial
notice of the contents of a court file, not the allegations asserted in the pleadings.
The motion for continuance was filed six days before a scheduled trial setting on
February 1, 2021, and she requested a 30-day continuance based on Woodard’s
representation in her motion, which was supported by a document that reported
Woodard had tested positive after taking a COVID-19 test on January 23, 2021.
During a discussion at the bench, the State stated that the testimony at trial
opened the door about whether Woodard altered the results of the COVID-19 test
she attached to the motion for continuance that she filed in January 2021. Defense
counsel responded, “We don’t have any definitive proof that the COVID-19 record
is invalid. We just have some conjecture from the State alleging it is invalid because
she can’t find the right record.” The trial court determined that the evidence raised
the issue and allowed the State to question Woodard about it.
After questioning Woodard about the motion for continuance and the COVID-
19 test, the State moved to admit the motion for continuance and the test Woodard
attached to her motion as an exhibit as “a record from the Court” after the State asked
“the Court take judicial notice of one of its filings – under judicial notice.” Defense
15 counsel objected, stating “I am going to approach that there is an improper
foundation that has been laid for that particular type of document to be admitted.”
The court overruled the objection and admitted the exhibit, which consists of
Woodard’s motion for continuance filed January 26, 2021, and Woodard’s test result
indicating she tested “positive” for COVID-19.
The State argues that Woodard’s objection of “improper foundation” is too
general to preserve error. We agree. We first note that Woodard voiced no specific
objection to the request the State made asking the trial court to take judicial notice
of the court’s file. As a result, when the trial court took judicial notice of the file,
Woodard preserved nothing for our review with respect to the trial court’s ruling.
Euziere v. State, 648 S.W.2d 700, 704 (Tex. Crim. App. 1983) (no error was
preserved because no specific objection was raised at trial); Nguyen v. State, 982
S.W.2d 945, 948 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).
Second, to preserve an error for appeal under Rule 33.1, the party’s objection
(unless apparent from the context) must be specific enough to “‘let the trial judge
know what he wants [and] why he thinks himself entitled to it, and [to] do so clearly
enough for the judge to understand him at a time when the trial court is in a proper
position to do something about it.’” Resendez v. State, 306 S.W.3d 308, 312–13
(Tex. Crim. App. 2009) (quoting Lankson v. State, 827 S.W.2d 907, 909 (Tex. Crim.
App. 1992)); see also Tex. R. App. P. 33.1(a)(1)(A). “A mere predicate objection,
16 without more, is insufficient to preserve error.” Cartwright v. State, 807 S.W.2d 654,
656 (Tex. App.—Beaumont 1991) (citation omitted), aff’d, 833 S.W.2d 134 (Tex.
Crim. App. 1992). Here, Woodard’s objection of “improper foundation” was too
general and not specific enough to advise the court that her complaint that the exhibit
– including both the motion for continuance and the COVID-19 test results – was
not subject to judicial notice. See Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App.
1985) (determining “proper predicate” objection was too general to preserve error);
Edwards v. State, 497 S.W.3d 147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet.
ref’d) (concluding objections to “foundation” and “improper foundation” were too
general to advise trial court of complaint).
Third, Woodard alleges in her brief that “the trial court abused its discretion
by taking judicial notice not only of the fact that the motion and the COVID-19
results were in the record, but by also taking judicial notice of inadmissible hearsay
statements contained within the documents and admitting the exhibit into evidence.”
However, Woodard never made a hearsay objection at trial. Since the objection made
at trial differs from that raised on appeal, no error is preserved for review. See
Euziere, 648 S.W.2d at 704.
Even if Woodard preserved this error for review, we would not find reversible
error. Essentially the same evidence was admitted when Woodard testified. Woodard
testified that the reason for the motion for continuance is because she tested positive
17 for COVID-19, but she admitted that she altered the COVID-19 test attached to the
motion to reflect that she had tested positive when she did not. Woodard testified
that she changed the word “negative” to “positive” in the report she attached to her
motion for continuance. She also explained that when her trial was originally set in
January 2021, she provided her attorney with the altered test results because he kept
asking her for paperwork, she had not received the results of the test, and she
expected the results of the test to be positive for COVID-19. Since essentially the
same evidence was admitted through Woodard’s testimony, Woodard suffered no
harm. See Tex. R. App. P. 44.2(b) (stating that any error that does not affect a
substantial right must be disregarded); Patterson v. State, 980 S.W.2d 529, 533 (Tex.
App.—Beaumont 1998, no pet.) (concluding where the same evidence was admitted
through testimony, the defendant suffered no harm). We overrule Woodard’s fourth
issue.
Having overruled all Woodard’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on March 7, 2023 Opinion Delivered October 4, 2023 Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.