Ex Parte Mark Allen Coker

• Court: Court of Appeals of Texas
• Decided: September 1, 2004
• Docket: 10-04-00108-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-04-00108-CR

Ex parte Mark Allen Coker

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 2004-0002-HC2

MEMORANDUM  Opinion

            The parties were notified that this cause would be dismissed unless a response showing grounds for continuing the appeal was filed within ten days because petitioner had been released from custody, thus making his request for habeas relief moot.  See Chacon v. State, 745 S.W.2d 377, 378 (Tex. Crim. App. 1988).  More than ten days have passed since the date of the notice.  The Court has not received a response.

          The appeal is dismissed.  Tex. R. App. P. 42.3(a).

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed September 1, 2004

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Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnotes omitted); accord Subirias v. State, 278 S.W.3d 406, 408 (Tex. App.—San Antonio 2008, pet. ref’d); Brock v. State, 275 S.W.3d 586, 590 (Tex. App.—Amarillo 2008, pet. ref’d); Stafford v. State, 248 S.W.3d 400, 411-12 (Tex. App.—Beaumont 2008, pet. ref’d); but see De La Paz, 279 S.W.3d at 349 (applying Montgomery factors).

Newton, --- S.W.3d at ---, 2009 WL 2644004, at *3 (footnote omitted).

            Probative force of the evidence:  The extraneous-act evidence was probative to rebut James’s defensive theory of fabrication.  As we have already discussed, the extraneous-act evidence is sufficiently similar to the charged offense to have probative value.  See id.  Thus, this factor weighs in favor of admissibility.

            Proponent’s need for that evidence: The trial court could have reasonably concluded that the State’s need for the extraneous-offense evidence was “considerable.”  See id. at ---, 2009 WL 2644004, at *4.  There were no eyewitnesses and no physical evidence available to corroborate the complainant’s testimony, and the State demonstrated that it needed this evidence to rebut James’s claim of fabrication.  See id.  This factor weighs in favor of admissibility.

            Tendency of evidence to suggest decision on an improper basis:  Sexually related misconduct and offenses involving minors have a tendency to suggest a verdict on an improper basis because of the inherently inflammatory and prejudicial nature of crimes of a sexual nature committed against children.  See id.  This danger of unfair prejudice was countersbalanced to some extent by the trial court’s limiting instruction.  See id.   Nevertheless, this factor weighs in favor of exclusion of the evidence.  See id.

            Jury confusion or distraction, undue weight, and amount of time or repetition:  These factors concern whether presentation of the extraneous evidence consumed an inordinate amount of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or to cause the jury to place undue weight on its probative value.  See Gigliobianco, 210 S.W.3d at 641-42; Newton, --- S.W.3d at ---, 2009 WL 2644004, at *3-4.

            James concedes that L.G.’s testimony consumed only a small amount of time (it consists of twelve pages of a 575-page record) and supports admission.  It was not repetitious, and with the trial court’s limiting instruction, we do not believe that it could cause jury confusion or distraction or cause the jury to give it undue weight.  All of these factors favor admission.

            All factors but one weigh in favor of admission of the extraneous-act evidence.  “Rule 403 ‘envisions exclusion of [relevant] evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.’”  Newton, --- S.W.3d at ---, 2009 WL 2644004, at *5 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).  We cannot say that there is a “clear disparity” between the danger of unfair prejudice posed by the extraneous-act evidence and its probative value.  Thus, we cannot say the court abused its discretion by overruling James’s Rule 403 objection, and we overrule issue two.

            Having overruled both issues, we affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed February 24, 2010

Do not publish

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