NO. 12-15-00251-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JOEY LIRA LONGORIA,                             §      APPEAL FROM THE 2ND
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Joey Lira Longoria appeals his conviction for aggravated sexual assault of a child.
Appellant raises three issues in which he challenges the sufficiency of the evidence supporting the
enhancement allegations and the admission of certain evidence in the punishment phase of trial.
We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with aggravated sexual assault of a child.            He
pleaded “not guilty,” and the matter proceeded to a jury trial. At trial, the evidence showed that
Appellant sexually assaulted a ten-year-old girl at a park on the Fourth of July. Ultimately, the
jury found Appellant “guilty” of aggravated sexual assault of a child and assessed his punishment
at imprisonment for ninety-nine years. This appeal followed.


                                   SUFFICIENCY OF EVIDENCE
       In Appellant’s first issue, he argues that the trial court erred by denying his motion for an
instructed verdict in the punishment phase because the evidence is insufficient to support the
enhancement allegations. He contends that the evidence is insufficient because of variances
between the enhancement allegations and the proof at trial.
Applicable Law
       Due process requires that a defendant be given notice that the state intends to enhance his
punishment by proving prior convictions. See Villescas v. State, 189 S.W.3d 290, 294 (Tex.
Crim. App. 2006). Enhancement allegations need not be alleged with the same particularity that
must be used in charging a primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App.
1986). A variance between an enhancement allegation and its proof at trial is fatal only if the
variance surprised the defendant to his prejudice. Id. at 43. The burden is on an appellant to
show evidence that the variance surprised him to his prejudice. See id.
Analysis
       Several months before Appellant’s trial, the State filed its notice of intent to enhance
punishment. In the notice, the State alleged the following convictions:


                Prior to the commission of the indicted offense (hereafter styled the primary offense), on
       the 12th day of October, 1995, in cause number 94-09-04352-CR in the 293rd District Court of
       Maverick County, Texas, the defendant was convicted of the felony offense of Unauthorized Use of
       a Motor Vehicle,

                And it is further presented in and to said Court that, prior to the commission of the primary
       offense, and after the conviction in cause number 94-09-04352-CR was final, the defendant
       committed the felony offense of Assault Family Violence-Enh and was convicted on the 18th day of
       June, 2009, in cause number 2008CR11178 in the 187th District Court of Bexar County, Texas[.]


       During the punishment phase of trial, the State introduced two judgments of conviction.
The first judgment names as the defendant a “Joey L. Longoria,” a cause number of 94-09-04352-
CR, an offense of “Unauthorized Use of a Motor Vehicle,” and a judgment date of “1-12-95,” in
the 293rd District Court of Maverick County, Texas. On appeal, Appellant argues that the
variance between the alleged date and the proven date renders the evidence of the enhancement
allegation insufficient. We disagree.
       As with any variance between an enhancement allegation and its proof at trial, an
incorrectly alleged judgment date is fatal only if the variance surprised the defendant to his
prejudice. See Freda, 704 S.W.2d at 43; Thompson v. State, 563 S.W.2d 247, 251 (Tex. Crim.
App. [Panel Op.] 1978). Appellant has not shown that he was surprised by the variance between
the dates. Therefore, we conclude that the variance between the dates was not fatal to the State’s
proof of the enhancement allegation. See Freda, 704 S.W.2d at 43; see also Thompson, 563
S.W.2d at 251.



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       The second judgment names as defendant a “Joey Lira Longoria,” a cause number of
2008CR11178, an offense of “ASSAULT-FAMILY-2ND OFFENSE,” and a judgment date of
“06-18-2009,” in the 187th District Court of Bexar County, Texas. On appeal, Appellant argues
that the variance between the alleged offense name and the proven offense name renders the
evidence of the enhancement allegation insufficient. However, Appellant has not shown that he
was surprised by the variance between the offense names. Therefore, we conclude that the
variance between the offense names was not fatal to the State’s proof of the enhancement
allegation. See Freda, 704 S.W.2d at 43; see also Thompson, 563 S.W.2d at 251.
       Appellant further argues that the evidence of the second enhancement allegation is
insufficient because the judgment does not include a fingerprint. To prove an enhancement
allegation, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim.
App. 2007). No specific document or mode of proof is required to prove these elements. Id.
Here, the State provided a certified pen packet containing the second judgment, a set of
fingerprints, a set of photographs, and other identifying information. A fingerprint expert testified
that he compared the fingerprints in the pen packet to a set of fingerprints taken from Appellant,
and determined that the two sets matched. From this evidence, a rational jury could have found
beyond a reasonable doubt that (1) the prior conviction exists, and (2) Appellant is linked to that
conviction. See id. Accordingly, we overrule Appellant’s first issue.


                                      ADMISSIBILITY OF EVIDENCE
       In Appellant’s second and third issues, he argues that the trial court erred by admitting
certain testimony in the punishment phase because (1) a witness lacked personal knowledge of the
subject matter, and (2) evidence of his behavior in court was irrelevant.
Standard of Review and Applicable Law
       A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. TEX. R. EVID. 602. Under the Texas
Rules of Evidence, relevant evidence is generally admissible. TEX. R. EVID. 402. Under article
37.07, section 3(a) of the Texas Code of Criminal Procedure, which governs the admissibility of
evidence during the punishment phase of a noncapital trial,


       evidence may be offered by the state and the defendant as to any matter the court deems relevant to


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         sentencing, including but not limited to the prior criminal record of the defendant, his general
         reputation, his character, and opinion regarding his character, the circumstances of the offense for
         which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
         other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by
         evidence to have been committed by the defendant or for which he could be held criminally
         responsible[.]


TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2016).
         Even relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice. TEX. R. EVID. 403. Rule 403 of the Texas Rules of Evidence
favors admissibility of relevant evidence, and the presumption is that relevant evidence will be
more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990). Rule 403 requires both trial and reviewing courts to analyze and balance (1) the probative
value of the evidence, (2) the potential to impress the jury in some irrational, yet indelible, way,
(3) the time needed to develop the evidence, and (4) the proponent’s need for the evidence. See
Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004).
         In general, a claim is preserved for appellate review only if (1) the complaint was made to
the trial court by a timely and specific request, objection, or motion, and (2) the trial court either
ruled on the request, objection, or motion, or refused to rule, and the complaining party objected
to that refusal. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App.
2003). An objection should be made as soon as the ground for objection becomes apparent.
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).
         Generally, we review a trial court’s decision to admit evidence under an abuse of
discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We must
uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
2002). We will not reverse a trial court’s ruling admitting evidence unless that ruling falls outside
the zone of reasonable disagreement. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App.
2001).
Personal Knowledge
         During the punishment phase of Appellant’s trial, the State called Lieutenant Robin
Parsons from the Cherokee County Jail to testify regarding Appellant’s behavioral issues while in
jail.   On direct examination, Parsons testified that Appellant was not allowed in cells with




                                                          4
television sets because “he has torn up a TV or two maybe.”                       Immediately following that
statement, this exchange occurred:


       PARSONS:        I’m sorry, repeat the question, I can continue.

       PROSECUTOR: What I am trying to get at are there problems—

       PARSONS:        Yes.

       APPELLANT:      I never tore up no TV, man.

       PARSONS:        Okay.

       TRIAL COURT: Would you take the jury into the jury room.



       With the jury outside the courtroom, Appellant continued to deny destroying the
television. The trial court discussed with Appellant the dangers of his outbursts in front of the
jury. Defense counsel made no objection to the testimony. When the jury returned, the State
continued its examination of Parsons without mentioning the television incident again.
       On cross-examination, this exchange occurred:


       DEFENSE COUNSEL:         Lieutenant Parsons, what was the date on which the TV was destroyed?

       PARSONS:                 I don’t know, sir. I couldn’t tell you without going back and reading
                                reports.

       DEFENSE COUNSEL:         What exactly was done to the TV?

       PARSONS:                 The TV from the description given to me, and I don’t—I receive—am I
                                allowed to answer how I would know or not know?

       DEFENSE COUNSEL:         Yes, sir.

       PARSONS:                 Okay. I receive all the incident reports of anything that occurs in the jail.
                                I don’t necessarily go back and view personally the location where the
                                incident took place, but I receive the paperwork from all of our officers
                                or whatever. And the indication was to me that a TV had been torn off
                                the wall and was unusable.

       DEFENSE COUNSEL:         You didn’t have any personal knowledge that that TV was tampered
                                with?

       PARSONS:                 Only that when it was brought to my office to ask me what to do with it I
                                told them to throw it away.

       DEFENSE COUNSEL:         Your Honor, I am going to object to that portion of Lieutenant Parsons’s
                                testimony concerning the TV. He obviously doesn’t have any personal



                                                       5
                               knowledge so I object to it and move to strike.

         TRIAL COURT:          It is already in. Overrule.


         On appeal, Appellant argues that the trial court erred by overruling his objection and
motion to strike “the testimony of Robyn [sic] Parsons that Appellant had broken a television set
when Parsons did not have personal knowledge.” Appellant acknowledges that an objection must
be made at the earliest possible opportunity or as soon as the ground for the objection becomes
apparent. See Dinkins, 894 S.W.2d at 355. But he contends that his objection and motion to
strike were timely because it was not apparent that Parsons lacked personal knowledge until cross-
examination.
         The State argues that Parsons did not testify to any facts outside his personal knowledge
but testified only to facts that he perceived with his own senses. The State further contends that
Appellant waived his complaint by eliciting even more testimony regarding the television incident
on cross-examination before objecting. Finally, the State argues that any error in admitting the
television testimony was likely inconsequential to the jury’s punishment decision in light of the
victim’s testimony and Appellant’s criminal history.
         We agree with Appellant’s conclusion that Parsons does not appear to have personal
knowledge that Appellant destroyed a television. But we disagree with Appellant’s contention
that the ground for objection became apparent only during cross-examination. The ground for
objection was apparent when Parsons stated that Appellant had “torn up a TV or two” because it
was then apparent that no evidence had been introduced to support a finding that he had personal
knowledge of the incident. See TEX. R. EVID. 602. Because Appellant did not object at the time
the statement was made, his complaint is not preserved for our review. See TEX. R. APP. P.
33.1(a); Geuder, 115 S.W.3d at 13; Dinkins, 894 S.W.2d at 355.
         Furthermore, even if Appellant had preserved his complaint, any error of the trial court in
denying the motion to strike is harmless. On appellate review, a nonconstitutional error must be
disregarded unless it affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Barshaw
v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). It is the appellate court’s duty to assess such
harm after a proper review of the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App.
2001).    We will not overturn a criminal conviction for nonconstitutional error if we, after
examining the record as a whole, have fair assurance that the error did not influence the jury, or
influenced them only slightly. Id.


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       After reviewing the record as a whole, we have fair assurance that Appellant’s substantial
rights were not affected by the error, if any exists. See id. The evidence about the damaged
television is one small piece of the evidence presented regarding Appellant’s behavior in jail.
Additionally, there is evidence that, while in jail, Appellant also destroyed telephones, fought with
other inmates, assaulted a guard, and was a “problem” in the jail “most of the time.”
       Moreover, the evidence of the primary offense and Appellant’s demeanor during his police
interview likely weighed heavily in the jury’s punishment decision. Appellant committed the
offense in broad daylight in a public place with the victim’s family nearby. And he laughed as he
described details of the offense to the police. Furthermore, the evidence shows that Appellant’s
criminal history includes prior felony convictions, including one for assault family violence—
second offense.
       Finally, the jury was not left with the impression that Appellant’s destruction of the
television was undisputed. The jury heard Appellant deny destroying the television. And they
heard Parsons confirm on cross-examination that he did not witness Appellant destroying the
television. Thus, the jury likely gave the television evidence less weight, if any at all, in its
punishment decision.
       The record as a whole gives us fair assurance that Parsons’s testimony that Appellant
destroyed a television did not influence the jury, or influenced them only slightly.         See id.
Therefore, we disregard any error in its admission. See TEX. R. APP. P. 44.2(b); Barshaw, 342
S.W.3d at 93. Accordingly, we overrule Appellant’s second issue.
Relevance
       On redirect examination, the State asked Parsons whether Appellant had any behavior
outbursts at the courthouse. Defense counsel objected on the basis of relevance. The trial court
overruled the objection. Parsons testified that he and another officer had taken Appellant to the
restroom. In the restroom, Appellant became visibly upset and angry. He cursed and complained
that the trial was moving too quickly. Appellant also hit a stall wall and tore paper towels out of
the paper towel holder.
       On appeal, Appellant argues that the trial court erred by overruling his objection because
the evidence is not relevant under article 37.07, is not probative, and is prejudicial. We disagree.
The evidence is relevant to sentencing because it shows his character for angry outbursts and out
of control behavior. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1).



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         We also interpret Appellant’s arguments regarding prejudice and probative value as a
challenge under Texas Rule of Evidence 403. However, we do not address the merits of this
challenge because it is not preserved for our review by an objection at trial. See TEX. R. APP. P.
33.1(a); Geuder, 115 S.W.3d at 13; Sony v. State, 307 S.W.3d 348, 356 (Tex. App.—San Antonio
2009, no pet.) (Rule 403 complaint waived where defendant raised only relevance complaint).
Accordingly, we overrule Appellant’s third issue.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.

                                                                  GREG NEELEY
                                                                     Justice


Opinion delivered December 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 30, 2016


                                         NO. 12-15-00251-CR


                                      JOEY LIRA LONGORIA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                             Appellee


                                  Appeal from the 2nd District Court
                           of Cherokee County, Texas (Tr.Ct.No. 19003)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.