Affirmed and Opinion Filed December 23, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00258-CR No. 05-21-00259-CR
ROBERT JESSE MEYERS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause Nos. 380-82877-2020 & 380-82495-2020
MEMORANDUM OPINION Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Myers A jury convicted appellant Robert Jesse Meyers of aggravated assault with a
deadly weapon and possession of methamphetamine in an amount of more than one
gram but less than four grams. The trial court assessed punishment, pursuant to an
agreement between the parties, at ten years’ imprisonment for the aggravated assault
and five years for the possession of methamphetamine conviction. In one issue,
appellant challenges the admissibility of extraneous offense evidence. We affirm.
DISCUSSION
In his sole issue on appeal, appellant argues the trial court erred in allowing into evidence an extraneous offense of a prior assault, and that this testimony was
inadmissible under rules of evidence 404(b) and 403.
We review a trial court’s ruling on the admissibility of evidence under an
abuse of discretion standard, and we must uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Wells v. State, 611 S.W.3d 396, 427
(Tex. Crim. App. 2020).
Rule 404(b) prohibits the use of evidence of a crime, wrong, or other act to
prove a person’s character to show that a person acted in accordance with the
character on a particular occasion. TEX. R. EVID. 404(b)(1). The rule provides that
the evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. 404(b)(2). The exceptions listed in rule 404(b)(2) “are ‘neither
mutually exclusive nor collectively exhaustive.’ There are numerous other uses to
which evidence of criminal acts may be put.” Montgomery v. State, 810 S.W.2d
372, 377 (Tex. Crim. App. 1990) (quoting MCCORMICK ON EVIDENCE § 190 at 558
(3d ed. 1984)); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
One well-established rationale for admitting evidence of extraneous misconduct is
to rebut a defensive theory that negates one of the elements of the offense. De La
Paz, 279 S.W.3d at 343. “‘When the accused claims self-defense or accident, the
State, in order to show the accused’s intent, may show other violent acts where the
defendant was an aggressor.’” Velasquez v. State, No. 03-19-00499-CR, 2021 WL
–2– 2878278, at *3 (Tex. App.—Austin July 9, 2021, pet. ref’d) (mem. op., not
designated for publication) (quoting Lemmons v. State, 75 S.W.3d 513, 523 (Tex.
App.—San Antonio 2002, pet. ref’d)).
Even evidence that is admissible under rule 404(b) may be excluded if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403; Hernandez v. State, 390 S.W.3d 310, 323
(Tex. Crim. App. 2012); Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App.
1999); see also Harris v. State, 572 S.W.3d 325, 334 (Tex. App.—Austin 2019, no
pet.). “The probative force of evidence refers to how strongly it serves to make the
existence of a fact of consequence more or less probable.” Gonzalez v. State, 544
S.W.3d 363, 372 (Tex. Crim. App. 2018).
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence
against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all
prejudicial evidence; it focuses on the danger of unfair prejudice. State v. Mechler,
153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly prejudicial if it
has the capacity to lure the factfinder into declaring guilt on a ground other than
proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex.
Crim. App. 2003). A trial judge has substantial discretion in balancing probative
–3– value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim.
App. 2006).
Probative value is the measure of how strongly the evidence serves to make
more or less probable the existence of a fact of consequence to the litigation, coupled
with the proponent’s need for the evidence. Gigliobianco v. State, 210 S.W.3d 637,
641 (Tex. Crim. App. 2006). Unfair prejudice refers to a tendency to tempt the jury
into finding guilt on an improper basis, such as an emotional one. Id. Confusion of
the issues refers to “a tendency to confuse or distract the jury from the main issue in
the case.” Id. When undertaking a rule 403 analysis, a trial court balances:
(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.
Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018) (quoting
Gigliobianco, 210 S.W.3d at 641–42); see also Baker v. State, No. 05-19-01051-CR,
2021 WL 1826829, at *2 (Tex. App.—Dallas May 7, 2021, pet. ref’d) (mem op., not
designated for publication). In practice, however, “these factors may well blend
together.” Gigliobianco, 210 S.W.3d at 642.
Appellant was indicted for aggravated assault with a deadly weapon (05-21-
00259-CR) and possession of methamphetamine in an amount of more than one
–4– gram but less than four (05-21-00258-CR). In the aggravated assault indictment,
appellant was accused of intentionally, knowingly, and recklessly causing bodily
injury to Jason Roshto by striking him with a sword, and that appellant used or
exhibited a deadly weapon (a sword) during the assault.
A hearing was held out of the jury’s presence to determine the admissibility
of the prior assault between the appellant and the complainant. Appellant objected
to the State’s expressed intent to ask Roshto about the prior knife fight, which
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Affirmed and Opinion Filed December 23, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00258-CR No. 05-21-00259-CR
ROBERT JESSE MEYERS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause Nos. 380-82877-2020 & 380-82495-2020
MEMORANDUM OPINION Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Myers A jury convicted appellant Robert Jesse Meyers of aggravated assault with a
deadly weapon and possession of methamphetamine in an amount of more than one
gram but less than four grams. The trial court assessed punishment, pursuant to an
agreement between the parties, at ten years’ imprisonment for the aggravated assault
and five years for the possession of methamphetamine conviction. In one issue,
appellant challenges the admissibility of extraneous offense evidence. We affirm.
DISCUSSION
In his sole issue on appeal, appellant argues the trial court erred in allowing into evidence an extraneous offense of a prior assault, and that this testimony was
inadmissible under rules of evidence 404(b) and 403.
We review a trial court’s ruling on the admissibility of evidence under an
abuse of discretion standard, and we must uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Wells v. State, 611 S.W.3d 396, 427
(Tex. Crim. App. 2020).
Rule 404(b) prohibits the use of evidence of a crime, wrong, or other act to
prove a person’s character to show that a person acted in accordance with the
character on a particular occasion. TEX. R. EVID. 404(b)(1). The rule provides that
the evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. 404(b)(2). The exceptions listed in rule 404(b)(2) “are ‘neither
mutually exclusive nor collectively exhaustive.’ There are numerous other uses to
which evidence of criminal acts may be put.” Montgomery v. State, 810 S.W.2d
372, 377 (Tex. Crim. App. 1990) (quoting MCCORMICK ON EVIDENCE § 190 at 558
(3d ed. 1984)); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
One well-established rationale for admitting evidence of extraneous misconduct is
to rebut a defensive theory that negates one of the elements of the offense. De La
Paz, 279 S.W.3d at 343. “‘When the accused claims self-defense or accident, the
State, in order to show the accused’s intent, may show other violent acts where the
defendant was an aggressor.’” Velasquez v. State, No. 03-19-00499-CR, 2021 WL
–2– 2878278, at *3 (Tex. App.—Austin July 9, 2021, pet. ref’d) (mem. op., not
designated for publication) (quoting Lemmons v. State, 75 S.W.3d 513, 523 (Tex.
App.—San Antonio 2002, pet. ref’d)).
Even evidence that is admissible under rule 404(b) may be excluded if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403; Hernandez v. State, 390 S.W.3d 310, 323
(Tex. Crim. App. 2012); Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App.
1999); see also Harris v. State, 572 S.W.3d 325, 334 (Tex. App.—Austin 2019, no
pet.). “The probative force of evidence refers to how strongly it serves to make the
existence of a fact of consequence more or less probable.” Gonzalez v. State, 544
S.W.3d 363, 372 (Tex. Crim. App. 2018).
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence
against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all
prejudicial evidence; it focuses on the danger of unfair prejudice. State v. Mechler,
153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly prejudicial if it
has the capacity to lure the factfinder into declaring guilt on a ground other than
proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex.
Crim. App. 2003). A trial judge has substantial discretion in balancing probative
–3– value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim.
App. 2006).
Probative value is the measure of how strongly the evidence serves to make
more or less probable the existence of a fact of consequence to the litigation, coupled
with the proponent’s need for the evidence. Gigliobianco v. State, 210 S.W.3d 637,
641 (Tex. Crim. App. 2006). Unfair prejudice refers to a tendency to tempt the jury
into finding guilt on an improper basis, such as an emotional one. Id. Confusion of
the issues refers to “a tendency to confuse or distract the jury from the main issue in
the case.” Id. When undertaking a rule 403 analysis, a trial court balances:
(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.
Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018) (quoting
Gigliobianco, 210 S.W.3d at 641–42); see also Baker v. State, No. 05-19-01051-CR,
2021 WL 1826829, at *2 (Tex. App.—Dallas May 7, 2021, pet. ref’d) (mem op., not
designated for publication). In practice, however, “these factors may well blend
together.” Gigliobianco, 210 S.W.3d at 642.
Appellant was indicted for aggravated assault with a deadly weapon (05-21-
00259-CR) and possession of methamphetamine in an amount of more than one
–4– gram but less than four (05-21-00258-CR). In the aggravated assault indictment,
appellant was accused of intentionally, knowingly, and recklessly causing bodily
injury to Jason Roshto by striking him with a sword, and that appellant used or
exhibited a deadly weapon (a sword) during the assault.
A hearing was held out of the jury’s presence to determine the admissibility
of the prior assault between the appellant and the complainant. Appellant objected
to the State’s expressed intent to ask Roshto about the prior knife fight, which
occurred on May 29, 2016. The State argued that evidence appellant had stabbed
Roshto with a pocketknife in the left arm (the same arm injured in the instant offense)
and that the injury required surgery was relevant to show Roshto’s state of mind and
the past relationship of the two men. It also argued that the evidence was important
to rebut any claim of self-defense or accident. Although the trial court suggested it
did not believe self-defense had been raised, it ruled the evidence was admissible to
show the circumstances around the offense and the relationship between the two
men. The trial court also made a finding under rule 403 that the probative value of
the evidence was not substantially outweighed by the danger of unfair prejudice.
The court overruled appellant’s objections under rules 404(b) and 403.
Appellant contends on appeal that the extraneous offense served only to show
he was guilty of the charged offense because he acted in conformity with his
character, which is prohibited under 404b. He argues there was no dispute at trial
that he stabbed Roshto, so the extraneous evidence was unnecessary to prove that.
–5– Also, he testified after the extraneous evidence was admitted that the sword was a
reaction to the lunge by Roshto with a knife and that appellant feared for his life.
Thus, the possible issues of intent and self-defense were raised after the extraneous
evidence had been admitted.
However, the record shows appellant raised the issue of self-defense at voir
dire, telling the panel as follows:
Here’s another concern I’ve got, in this case we’re talking about a sword being used. I think a lot of people, when they hear that, might want to take a step back and say that’s kind of weird. I believe there will be a question of self-defense that comes up in this case, in that case the sword would be the instrument of self-defense. Is anyone hearing a sword might be involved in this case says I don’t believe you could use that in self-defense? Furthermore, prior to the admissibility hearing, appellant raised Roshto’s combative
behavior with paramedics during cross-examination of a police officer, suggesting
Roshto may have been the aggressor in the argument. Defensive theories presented
during voir dire, opening statement, and during cross-examination can open the door
to extraneous offense evidence. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim.
App. 2016); Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). Because
the disputed evidence rebutted appellant’s defensive theory, it had relevance other
than character conformity, and the trial court did not, therefore, abuse its discretion
in admitting the testimony about the prior knife fight.
Regarding rule 403, the evidence of a prior knife fight between the same two
men that caused a severe injury to the same arm that was injured in the indicted
–6– offense was rationally related to the elements of the indicted offense and the issue
of self-defense. It showed the prior relationship between appellant and Roshto;
showed appellant had been the aggressor and injured Roshto in the past; and
explained why Roshto sought to end the altercation when he saw his wrists were
bleeding. Furthermore, the trial court included a limiting instruction on the jury’s
use of the evidence of the May 2019 knife fight in the jury charge. This minimized
the risk of the jury making an impermissible inference that the extraneous offense
was evidence of appellant’s conformity with that behavior or character. See
Hernandez v. State, No. 01-16-00741-CR, 2018 WL 1473990, at *3 (Tex. App.—
Houston [1st Dist.], no pet.) (mem. op., not designated for publication) (citing Lane
v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)). Furthermore, the time the
State needed to develop this testimony was minimal because the State presented the
evidence of the prior knife fight through its direct examination of Roshto. His entire
direct examination testimony spans approximately forty-four pages, and the
testimony regarding the May 2019 knife fight is approximately six pages. The brief
mention of the prior knife fight did not distract the jury from consideration of the
indicted offense.
The trial court could have reasonably concluded the probative value of the
disputed evidence was not substantially outweighed by the danger of unfair
prejudice or the other rule 403 considerations. The court did not, accordingly, abuse
its discretion in admitting the evidence. We overrule appellant’s issue.
–7– The trial court’s judgments are affirmed.
210258f.u05 210259f.u05 /Lana Myers// Do Not Publish LANA MYERS TEX. R. APP. P. 47.2(b) JUSTICE
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT JESSE MEYERS, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-82877- No. 05-21-00258-CR V. 2020. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 23rd day of December, 2022.
–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT JESSE MEYERS, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-82495- No. 05-21-00259-CR V. 2020. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
–10–