Joseph Dan Fuller v. the State of Texas

NO. 12-24-00116-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSEPH DAN FULLER, § APPEAL FROM THE 413TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § JOHNSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Joseph Dan Fuller, appeals his conviction for robbery. In two issues, he
challenges the sufficiency of the evidence and the trial court’s admission of certain impeachment
evidence.1 We affirm.
BACKGROUND

On the night of December 18, 2022, Hayden Miller (then sixteen years old) worked the
closing shift at a Brookshire’s grocery store located in Joshua, Texas. At approximately 9:00
p.m., Miller assumed the cashier position at the store’s only open cash register located near the
entrance. While there, Miller noticed an individual (whom he later identified as Appellant) enter
the store and walk towards the back of the building. A few minutes later, Miller observed
Appellant walking around the wine section and behaving in a furtive manner; he carried no items
for purchase and stared at Miller while he rang up a customer’s purchase. The customer paid for
her items in cash, and while the cash drawer was open, Appellant approached Miller from
behind, pushed him aside, and attempted to grab the money inside the drawer. In the ensuing
struggle, Miller tried to physically prevent Appellant from taking the cash, while Appellant

1
This case was transferred to this Court from the Tenth Court of Appeals in Waco, Texas, pursuant to a
docket equalization order. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
pushed Miller to the ground and, after Miller got up, “hit [him] in the face,” causing Miller to fall
again. Appellant picked up the cash from the ground and fled.
Officers from the Joshua Police Department responded to the scene, took statements from
witnesses, and obtained surveillance footage from the store’s security cameras. The officers
extracted still photographs of Appellant from the videos and posted them to the department’s
Facebook page, asking the public to assist in identifying the suspect. Multiple people called to
identify Appellant as the person in the photographs.
Subsequently, Appellant was indicted for the offense of robbery. Appellant pleaded “not
guilty,” and the matter proceeded to a jury trial.
Trial Evidence
Miller testified to the events of December 18, identifying Appellant as the person who
attacked him and took the money. He testified that he suffered cuts, bruises, and swelling around
his mouth from the incident, caused by Appellant striking him in the face. The State introduced
photographs of Miller’s injuries, as well as surveillance footage of the incident from multiple
angles.
Jeanie Johnston, the customer at the cash register during the incident, testified that while
she stood at the cash register to receive her change, she saw a “bigger built black gentleman,”
possibly wearing a black hoodie, approach the cashier from behind and push Miller. Johnston
identified Appellant as the person who attacked the cashier. While the cashier and Appellant
fought over the money, Johnston shouted for help, but no one came, and Appellant left the store
with cash from the drawer. As Appellant left the store, he stopped between the two sets of
double doors at the entrance to retrieve a black handgun from the area of his sock, then exited
out of the second set of doors.
Racheal Gulley testified that she stopped at the Brookshire’s to purchase milk on
December 18. When she walked in, she saw two people hiding behind a display and they told
her to call the police because a robbery was in progress. Gulley briefly looked toward the cash
registers and saw the cashier being attacked by a man, but quickly exited the store to make the
call. The operator asked Gulley to describe the situation inside the store, so she approached the
doors again. This time, she encountered the man who was previously attacking the cashier. The
man bent down, pulled a dark-colored “revolver-type gun” out of his sock, told her to “have a
good evening,” and then left the store.

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Michael Morrison, the store’s director, testified that he retrieved the surveillance footage
of the incident from the store’s cameras and provided same to law enforcement. One camera
covering the area between the two sets of entrance doors did not capture anything relevant.
Morrison stated that by comparing the amount of cash the computer indicated should be in the
drawer to how much remained after the incident, he determined that Appellant took $102.00
from the cash drawer. Morrison affirmed that Appellant had neither permission nor authority to
take anything from the store, including cash from the register.
Appellant elected to testify and recounted a different version of the events that occurred
on December 18. He claimed to be staying at a local motel and went to the Brookshire’s to buy
almond milk and obtain change during the transaction to use for laundry. Appellant located the
milk in the dairy case but did not pick it up because the available size would not fit in his motel
room refrigerator. He approached the customer service counter to ask whether he could get
change without making a purchase but, no one was there. Appellant then saw that the cash
drawer was open at the only active cash register (where he indicated that two customers, a man
and a woman, stood), and decided to ask whether he could get change “in between the
transaction.” As he walked toward the register and began speaking, the cashier “snapped,”
began screaming, and threw the “whole cash register” onto the ground. The cashier then
physically assaulted Appellant, grabbing him by the neck and choking him with “the ball of his
shoulder.” During the altercation, the cashier put Appellant in an “arm bar” and pushed him
away from the cash register and back toward the aisles. Appellant briefly broke free, but the
cashier grabbed him again, put him into a “sleeper,” and tried to drag him to the ground. When
Appellant again “broke away,” he tried to grab his hat (which fell onto the floor during the
struggle) and run out of the store but felt a hard blow to his head from an unknown object. The
cashier grabbed him a third time, this time in a “choke hold” from behind. Appellant was unsure
how he freed himself, but he started “swinging” to defend himself, and hit the cashier “a couple
times,” after which the cashier fell. Appellant decided to leave the store, but for some reason
stopped between the sets of double doors to remove his gun from his pants leg. He encountered a
woman in a blue sweat suit standing outside (who he alleged was Jeanie Johnston) who
“screamed” and “yelled” at Appellant. Appellant then ran to his truck and drove away.
Appellant stated that the video surveillance footage did not accurately show the events as he

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remembered them, and that he was not the person shown reaching toward the cash register or
exiting the store.
Evidentiary Objections
Before the State began cross-examining Appellant during the guilt-innocence phase of
trial, defense counsel requested a hearing outside the jury’s presence. During that hearing,
defense counsel objected to the admission of documents regarding several events in Appellant’s
criminal history about which the State intended to question Appellant for purposes of
impeachment. Specifically, defense counsel objected to (1) Exhibits 22 through 29 on the basis
that the offenses involved were not crimes of moral turpitude, (2) Exhibits 14 through 17, 20 and
21 because those events occurred too remotely in time, and (3) Exhibits 14 through 17, 20, and
21 because their prejudicial effect far outweighed their probative value. The trial court
ultimately overruled Appellant’s objections and admitted all the contested exhibits into evidence.
Thereafter, the State’s attorney questioned Appellant about each of the aforementioned
convictions.
Notably, over the objection of defense counsel, the State asked questions and elicited
testimony from Appellant regarding the facts underlying his conviction for injury to a child,
including the nature and extent of the child’s injuries:

Q: What kind of injuries were alleged to have occurred to [the child]?

A: I’m not sure exactly what happened to him.
…

Q: Isn’t it true that you were accused of causing injuries to [the child] that included swelling to his
face and head area, blackened right eye, face and neck scratches, and a CT scan ended up showing
that there was a fracture in the head area?

A: That’s incorrect.
…

Q: But that’s what was charged -- Well, in the indictment that you pled guilty to in that case, isn’t
it true that it charged you with throwing … the 3-year-old, and causing bodily injury to him?

A: That’s incorrect.

Q: You didn’t plead guilty to Injury to a Child?

A: I pled guilty to the -- to the crime, but I didn’t throw him --
…

A: The Injury to a Child, I pled guilty to it. The – you’re saying that I threw him or that I fractured
his head or something like that. I didn’t. I woke up. We stayed in a upstairs/downstairs

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apartments, and he fell down the stairs while I was asleep. I was 19 years old. And I don’t know
exactly the -- the severity of what happened. I know that they said that he had a -- a bruise under
his eye or something like that. But I pled guilty to the crime because I was -- I was -- I was young
and scared. I’m not going to lie to you. I was young. I was a kid.

The State also questioned Appellant, albeit much less extensively, about the facts
underlying his 2013 conviction for misdemeanor assault family violence, asking, “Do you
remember what happened in this case?” Defense counsel did not object to this question.
Pertaining to the 2016 conviction for misdemeanor assault family violence, the State did not
question Appellant about the details of the underlying incident. Instead, the State’s attorney
handed Appellant Exhibits 26 through 30 and asked him to review them, after which Appellant
began providing details about the offense unprompted. Defense counsel did not object at any
point to this testimony.
The jury ultimately found Appellant “guilty” and imposed a sentence of forty years’
imprisonment. This appeal followed.
SUFFICIENCY OF THE EVIDENCE

In his first issue, Appellant contends that the evidence was legally insufficient to support
jury findings that (1) he had the requisite intent to commit theft and (2) he had the requisite intent
when he caused bodily injury to Miller.
Standard of Review

The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. 443 U.S. 307,
315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the
Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See
Jackson, 443 U.S. at 315–16, 99 S. Ct at 2786–87; see also Escobedo v. State, 6 S.W.3d 1, 6
(Tex. App.–San Antonio 1999, pet. ref’d). In reviewing the legal sufficiency of the evidence, we
consider all the evidence in the light most favorable to the verdict and determine whether any
rational factfinder could have found the essential elements of the crime beyond a reasonable
doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks, 323 S.W.3d at 898–99.

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The trier of fact is the sole judge of the credibility of the witnesses and can believe all,
some, or none of the testimony presented, and a reviewing court affords almost complete
deference to a jury’s decision when that decision is based upon an evaluation of credibility.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We defer to the trier of fact’s resolution of any
conflicting inferences raised in the evidence and presume that the trier of fact resolved such
conflicts in favor of the verdict. Jackson, 443 U.S. at 326, 99 S.Ct. 2781; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Clayton, 235 S.W.3d at 778. A conclusion of guilt can rest on the combined and
cumulative force of all the incriminating circumstances; the duty of a reviewing court is to
ensure that the evidence presented supports a conclusion that the defendant committed the crime
charged. See Hernandez v. State, 190 S.W.3d 856, 864 (Tex. App.—Corpus Christi 2006, no
pet.); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The sufficiency of the evidence is measured against the offense(s) as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
Applicable Law

In relevant part, a person commits the offense of robbery if, in the course of committing
theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or
recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02(a) (West 2023). A
person commits theft if he unlawfully appropriates property with intent to deprive the owner of
said property. Id. § 31.03(a) (West 2023). Appropriation of property is unlawful if it is without
the owner’s effective consent. Id. § 31.03(b)(1). “Deprive” means, in relevant part, to withhold
property from the owner permanently or for so extended a period that a major portion of the
value or enjoyment of the property is lost to the owner. Id. § 31.01(2)(A) (West 2023). The
requisite specific intent to commit theft can be inferred from a defendant’s conduct and remarks
and from all surrounding circumstances. See Sanchez v. State, 428 S.W.3d 240, 245 (Tex.
App.—Houston [1st Dist.] 2014, no pet.).

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With respect to the assault component of robbery, “bodily injury” is “physical pain,
illness, or any impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (West
2023). A lasting physical injury or impairment is not necessary to sustain a finding that the
defendant caused the victim bodily injury within the statutory definition. Lewis v. State, 530
S.W.2d 117, 118 (Tex. Crim. App. 1975). This definition is broadly construed to include “even
relatively minor physical contacts so long as they constitute more than mere offensive touching.”
Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). In the case of robbery, the bodily
injury element is satisfied when “violence is clearly perpetrated against another for the purpose
of ... preventing or overcoming resistance to theft.” Id. at 787.
A person acts “intentionally” with respect to the result of his conduct when it is his
conscious objective or desire to cause the result. See TEX. PENAL CODE ANN. § 6.03(a) (West
2023). A person acts “knowingly” with respect to the result of his conduct when he is aware that
his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts “recklessly”
with respect to the result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the result will occur. Id. § 6.03(c).
Intent to Commit Theft

Appellant’s argument presumes that his version of events (in which he approached Miller
to ask for change, and Miller attacked him without cause) is the accurate one. He alleges that
Miller’s testimony as to his perception of Appellant’s intent is the only evidence pertaining to
this element, and that such evidence is legally insufficient to support a finding that Appellant was
in the course of committing theft. Intent to commit theft (that is, intent to deprive the
appropriated property’s owner of said property) is typically proven through circumstantial
evidence, and may be inferred from the defendant’s acts, words, and conduct, as well as from the
surrounding circumstances in general. State v. Fuller, 480 S.W.3d 812, 823 (Tex. App.—
Texarkana 2015, pet. ref’d); Sanchez, 428 S.W.3d at 245.
Miller testified that he noticed Appellant in the store but did not interact with him until
Appellant shoved Miller aside and attempted to reach into the open cash register. During the
physical struggle that ensued, Appellant continued trying to get to the cash in the drawer, and
once Miller fell to the ground, Appellant picked up the fallen money before fleeing the store.
Johnston also witnessed Appellant approach Miller from behind and suddenly push him, and saw
Appellant take the cash that fell from the drawer before exiting the store. Morrison’s testimony

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that money was missing from the cash drawer additionally corroborated Miller’s and Johnston’s
accounts. It was within the province of the jury to determine which testimony to credit and
which to reject. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury could
have rejected Appellant’s testimony regarding his version of events and credited the testimony of
Miller and Johnston. From said testimony, a rational jury could have found that Appellant acted
with the intent to deprive Brookshire’s (the rightful owner of the cash) of the stolen money, and
that he was in the course of committing theft when he assaulted Miller.
Intent to Obtain or Maintain Control of Property

Appellant claims that the injuries suffered by Miller were not the result of any desire on
Appellant’s part to obtain or maintain control of property but were “incidental to the aggressive
attack by Mr. Miller on … Appellant.” Other than again presuming that the version of events to
which Appellant testified is the correct one, Appellant does not provide any analysis or
explanation as to why the trial evidence on this element is legally insufficient.
As aforementioned, Miller testified that after Appellant first pushed him, Appellant
immediately reached for the cash register, and he tried to get to it multiple times during the
altercation. The surveillance video shows Appellant reached towards or into the cash drawer at
least three times while Miller attempted to stop him, and took the bills from inside the drawer
once Miller was incapacitated. Johnston testified to her understanding, from the altercation she
witnessed, that Appellant was attempting to rob the store, and that after the struggle with Miller,
Appellant ran away with the money. Gulley similarly stated that upon entering the store, she saw
Appellant attacking Miller. In general, “a theft occurring immediately after an assault will
support an inference that the assault was intended to facilitate the theft.” Cooper v. State, 67
S.W.3d 221, 224 (Tex. Crim. App. 2002). A rational jury could reasonably have inferred that
Appellant initiated the assault on Miller, and that the motive for such assault was a desire to
obtain the money from the cash register.
We recognize that Appellant testified to a different sequence of events, wherein Miller
attacked Appellant for seemingly no reason. Again, however, it is the jury’s role to reconcile
conflicting testimony. From its “guilty” verdict, the jury clearly determined that Appellant’s
testimony was either not credible or less credible than the other testimony presented at trial, and
we must defer to the jury’s decision when that decision is based upon an evaluation of the
witnesses’ credibility. See Lancon, 253 S.W.3d at 705. Based on the foregoing evidence, when

8
viewed in the light most favorable to the verdict, giving due credit to the jury’s resolution of the
conflicting evidence and the weight given to the witnesses’ testimony and other evidence, we
conclude that a rational jury could have found beyond a reasonable doubt that Appellant
intentionally, knowingly, or recklessly caused bodily injury to Miller with the intent to obtain or
maintain control of the money from the cash register.
We overrule Appellant’s first issue.

IMPEACHMENT EVIDENCE

In his second issue, Appellant argues that the trial court committed reversible error
(specifically in violation of Texas Rule of Evidence 609) by admitting certain impeachment
evidence related to his criminal history. The State concedes that several of the challenged
exhibits were inadmissible but contends that the admission of said exhibits is not reversible error.
Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence under an abuse of discretion
standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A trial court abuses
its discretion only when the decision lies “outside the zone of reasonable disagreement.” Id.
Texas Rule of Evidence 609(a) provides that witness credibility may be attacked by
admitting evidence that the witness previously has been convicted of a felony or crime of moral
turpitude if the trial court determines that the probative value of admitting the evidence simply
outweighs its prejudicial effect. See TEX. R. EVID. 609(a); Meadows v. State, 455 S.W.3d 166,
170 (Tex. Crim. App. 2015). Rule 609(b) limits Rule 609(a) by providing that evidence of a
prior conviction is inadmissible if more than ten years elapsed since the later of the date of
conviction or release of the witness from the confinement imposed for that conviction, unless the
court determines that the probative value of the conviction, supported by specific facts and
circumstances “substantially outweighs its prejudicial effect.” TEX. R. EVID. 609(b) (emphasis
added); Meadows, 455 S.W.3d at 170. When considering the probative value of evidence versus
its possible prejudicial effect, we presume that the trial court conducted the appropriate balancing
test, which need not be shown in the record. Martin v. State, 570 S.W.3d 426, 437 (Tex. App.—
Eastland 2019, pet. ref’d).

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Analysis

The events and corresponding exhibits about which the State questioned Appellant, and
to which Appellant’s trial counsel objected, are as follows:

Year Event Exhibit(s)
2005 Final conviction for Injury to a Child 14, 15
2005 Final conviction for Possession of Controlled Substance, < One Gram 16
2005 Probated sentence for Tampering/Destroying Evidence 17
2005 Probated sentence for Prohibited Substance in a 18
Correctional Facility
2003 Final conviction for Possession of Controlled Substance, < One Gram 20
2005 Probated sentence for Evading Arrest with Vehicle 21
2013 Probated sentence for misdemeanor assault— family violence 22, 23, 24, 25
2016 Probated sentence for misdemeanor assault— family violence 26, 27, 28,
29, 302

Appellant asserts that Exhibits 14, 15, 16, 17, 18, 20, and 21 were inadmissible because
more than ten years elapsed since the events in question and their probative value does not
substantially outweigh their prejudicial effect. The State concedes that Exhibits 16, 17, 18, 20,
and 21 were inadmissible for this reason; therefore, we need not consider these exhibits’
admissibility. Further, the record indicates that Appellant’s counsel did not object to the
admission of Exhibit 18 at trial; consequently, Appellant preserved no error pertaining to this
exhibit for our review. See TEX. R. APP. P. 33.1(a)(1). Thus, we need only determine whether
Exhibits 14 and 15 were admissible.

Exhibits 14 and 15
The date on Appellant’s judgment of conviction for the felony offense of injury to a child
is April 18, 2005; therefore, it is clear from the record that more than ten years elapsed from the
date of conviction to the time of trial (which commenced in March of 2024). The judgment also
indicates the trial court imposed a sentence of five years’ imprisonment. However, during the
hearing at the trial of this matter, Appellant stated that he was incarcerated for seven years for

2
At trial, Appellant’s counsel objected to the admission of Exhibits 22 through 30 solely on the basis that
the offenses set forth therein (both misdemeanor assault family violence) were not crimes of moral turpitude.
Appellant appears to have abandoned this argument on appeal.

10
this offense. The State argues that because (1) this testimony is the only record evidence to show
when Appellant was released from confinement, (2) a seven-year term of imprisonment meant
Appellant would have been released in 2012, and (3) Appellant committed the instant offense of
robbery in 2022, evidence of this offense does not run afoul of the time limit in Rule 609(b).
However, it is our understanding (with which our sister courts appear to agree) that the relevant
date for determining remoteness under Rule 609(b) is the date of trial. See, e.g., Pena-Flores v.
State, No. 04-22-00539-CR, 2024 WL 1193287, at *4 (Tex. App.—San Antonio Mar. 20, 2024,
no pet.) (mem. op., not designated for publication) (examining whether release from confinement
occurred “within ten years of trial”); Loza v. State, 659 S.W.3d 491, 503 (Tex. App.—Eastland
2023, no pet.) (appellant was incarcerated for crime “within ten years before trial”); Blacklock v.
State, 611 S.W.3d 162, 171 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (remote
convictions occurred over ten years “before trial”); Chitwood v. State, 350 S.W.3d at 746, 749
(Tex. App. – Amarillo 2011, no pet.) (conviction was more than ten years old “at the time of
trial”). Therefore, Exhibits 14 and 15 were admissible only if the probative value of Appellant’s
2005 conviction for injury to a child substantially outweighed its prejudicial effect. See TEX. R.
EVID. 609(b).
In weighing the probative value of a conviction against its prejudicial effect, we consider
the following nonexclusive list of such factors (also known as the Theus factors): (1) the
impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the
charged offense and the witness’s subsequent history; (3) the similarity between the past crime
and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the
importance of the credibility issue. See Leyba v. State, 416 S.W.3d 563, 572 (Tex. App.–
Houston [14th Dist.] 2013, pet. ref’d) (citing Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim.
App. 1992)); see also Meadows, 455 S.W.3d at 170 (“In deciding whether, in the interests of
justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a
court may consider all relevant specific facts and circumstances, including whether intervening
convictions dilute the prejudice of that remote conviction”).
Under the first factor, consideration must be given to the impeachment value of the prior
convictions. The impeachment value of crimes involving deception is higher than for crimes not
involving deception. Loza, 659 S.W.3d at 503. The offense of injury to a child does not typically
involve untruthfulness or deception and is not the type of crime that would ordinarily weigh

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heavily against a witness’s veracity. Thus, the first factor weighs against admissibility. The
second Theus factor considers temporal proximity and later conviction history. Theus, 845
S.W.2d at 881. The conviction for injury to a child is not recent, having occurred approximately
nineteen years before trial, and this would seemingly weigh against admission. However,
Appellant’s subsequent conviction history (including two convictions in 2013 and 2016,
respectively) serves to demonstrate “a propensity for running afoul of the law,” and the
intervening convictions may dilute the prejudice of the more remote conviction. Id.; see
Meadows, 455 S.W.3d at 170. This factor weighs slightly in favor of admission.
In examining the third factor, similarity between an offense and the current offense
militates against admissibility, whereas dissimilarity between the past offense and the current
offense favors admissibility. Theus, 845 S.W.2d at 881. The reasoning here is that the
admission of a past crime similar to the one charged creates a risk that the jury could convict on
the perception of a past pattern of conduct, instead of on the facts of the charged offense. Id.
Injury to a child and robbery are similar in that both require the offender to have intentionally,
knowingly, or recklessly inflicted bodily injury upon another. This factor weighs against
admissibility. The fourth and fifth factors “both depend on the nature of a defendant’s defense
and the means available to him of proving that defense.” Id. “When the case involves the
testimony of only the defendant and the State’s witnesses, ... the importance of the defendant’s
credibility and testimony escalates.” Id. As the importance of the defendant’s credibility rises,
so does the State’s need for an opportunity to impeach the defendant. Id. Here, Appellant was
the only witness who testified in his defense. Furthermore, Appellant’s version of the events of
December 18, 2022, differed greatly from that given by the State’s witnesses. Consequently,
Appellant’s credibility was of high importance, and the State’s need for an opportunity to
impeach Appellant’s credibility rose in turn. See id. Therefore, the fourth and fifth factors
weigh in favor of admission.
In conclusion, the majority of the Theus factors weigh in favor of admitting the
challenged evidence. Based on our consideration of all five Theus factors and the wide
discretion we afford the trial court, we hold that the probative value of Appellant’s prior
conviction outweighed its prejudicial effect. We cannot conclude that the trial court abused its
discretion in allowing the State to impeach Appellant with his prior conviction for injury to a
child. We overrule this portion of Appellant’s second issue.

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Exhibits 16, 17, 18, 20, and 21
The State concedes that Exhibits 16, 17, 18, 20, and 21 were inadmissible under Rule
609(b) and that the trial court erred by admitting them.
A trial court’s erroneous evidentiary ruling does not result in constitutional error;
therefore, it will be disregarded, and reversal is not required, if the error did not affect the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b) (the nonconstitutional error standard);
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Garcia v. State, 126 S.W.3d 921,
927 (Tex. Crim. App. 2004). A substantial right is implicated when the trial court’s error had a
substantial or injurious effect or influence in determining the jury’s verdict. Schmutz v. State,
440 S.W.3d 29, 39 (Tex. Crim. App. 2014); Garcia, 126 S.W.3d at 927. In assessing the
likelihood that the claimed error adversely affected the jury’s decision, we must consider (1) the
entire record, including all the evidence presented at trial, (2) the nature of the evidence
supporting the jury’s verdict, (3) the character of the alleged error and how it might be
considered with the other evidence in the case, (4) the trial court’s instructions to the jury, (5)
whether the State emphasized the error, and (6) whether the evidence of the defendant’s guilt is
overwhelming. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Therefore, we
will not reverse a conviction for nonconstitutional error if, after examining the record as whole,
we have fair assurance that the error did not influence the jury’s verdict, or if it did, it had only a
slight effect. Barshaw, 342 S.W.3d at 93.
In this case, after considering the entire record, we conclude that the record contains
overwhelming evidence of Appellant’s guilt that was not tarnished by the erroneous admission of
extraneous offense evidence. Both Miller and Johnston testified to Appellant’s attack on Miller,
as well as his repeated attempts to get to the cash in the register and his ultimate success in doing
so. Johnston and Gulley additionally corroborated each other’s testimony regarding Appellant’s
retrieval of a firearm before leaving the store. Moreover, the jury viewed surveillance camera
footage that clearly showed both Appellant’s face and his efforts (and eventual success) toward
obtaining the stolen money, and more than one otherwise disinterested witness identified
Appellant as the person shown in the video. Although Appellant testified that he never intended
to steal from the store and that Miller attacked him without cause, no other evidence supported

13
Appellant’s version of events. The overall record and the evidence of Appellant’s guilt weigh
against a finding of harmful error.
Addressing the nature of the error and its effect on other evidence in the case, Appellant’s
prior convictions bore on his credibility and could be considered by the jury in the context of
weighing his credibility and the credibility of the State’s witnesses. Therefore, the erroneous
admission of evidence regarding specific past convictions could have impacted the jury’s
willingness to believe Appellant’s version of events. This factor weighs in favor of a finding of
harmful error.
In its charge, the court instructed the jury that it was not permitted to consider evidence
of Appellant’s extraneous offenses “to prove the character of a person in order to show that he
acted in conformity therewith.” We presume that the jury follows a trial court’s instructions
regarding the consideration of evidence. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim.
App. 2009). Therefore, any potential harm to Appellant would be further mitigated by the trial
court’s limiting instruction, and this factor weighs against a finding of harm. See id.; Wishert v.
State, 654 S.W.3d 317, 334 (Tex. App.—Eastland 2022, pet. ref’d). Finally, the record shows
that the State did not place emphasis upon the drug possession offenses, the tampering offense,
or the evading arrest offense while presenting its case, weighing against a finding of harmful
error. After questioning Appellant about the existence of these convictions and the dates on
which said convictions occurred, the State did not mention them again prior to the jury retiring to
deliberate.
Because the majority of the relevant factors weigh against a finding of harmful error, and
in light of all the other evidence, we have fair assurance that the erroneous admission of Exhibits
16, 17, 18, 20, and 21 did not have a substantial and injurious effect or influence on the jury’s
verdict. Consequently, we must disregard the error and overrule this portion of Appellant’s
second issue. See TEX. R. APP. P. 44.2(b).

Details of Prior Offenses
Appellant asserts that the trial court abused its discretion “by allowing the State to elicit
testimony about facts forming the basis of the Appellant’s prior conviction[s] for injury to a child
and assault family violence.” Because Appellant did not object at trial to the introduction of
factual details about the 2013 and 2016 convictions for misdemeanor assault family violence, he

14
waived those complaints on appeal. See TEX. R. APP. P. 33.1. Thus, we need only examine this
issue as it pertains to Appellant’s conviction for injury to a child.
While the fact of a prior conviction may be introduced for impeachment purposes under
Rule 609, the details of the conviction are generally inadmissible. Jabari v. State, 273 S.W.3d
745, 753 (Tex. App–Houston [1st Dist.] 2008, no pet.) (citing Mays v. State, 726 S.W.2d 937,
953 (Tex. Crim. App. 1986)). This is because evidence of prior convictions and extraneous bad
acts “is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to
defend himself against charges which he had not been notified would be brought against him.”
Arebalo v. State, 143 S.W.3d 402, 407 (Tex. App.—Austin 2004, pet. ref’d) (quoting Albrecht v.
State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972)). Although exceptions to this rule apply
where, for example, a witness makes statements that create a false impression of law-abiding
behavior, or testifies attempting to present an incomplete picture of the incident underlying a
criminal conviction, the State did not argue that either exception applied at trial and does not
address this issue in its response brief. See Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim.
App. 1999); Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993) (overruled on other
grounds by Ex Parte Moreno, 245 S.W.3d 419, 425 (Tex. Crim. App. 2008)). At trial, in
response to Appellant’s objection, the State argued that the details of the offense were admissible
to, “… flush out the truthfulness of this Defendant. He’s brought that into question, and asking
about the specific incident and his willingness to be truthful. He’s already pled guilty to it.”
From our examination of the record, Appellant did not assert that he was never convicted of a
crime, nor did he previously testify to an incomplete or misleading version of the events giving
rise to the conviction. Probing into the details of the incident was prejudicial because it forced
Appellant to defend himself against charges that were not the subject of the present action,
implied that he was a violent person, and suggested that the current offense was in conformity
with that character. We agree with Appellant that the trial court improperly permitted the State
to elicit testimony about the details of his conviction for injury to a child.
Having held that it was error to allow the State to question Appellant about the details of
his prior conviction for injury to a child, we must determine whether that error was harmful. As
aforementioned, the erroneous admission of evidence is nonconstitutional error, and requires us
to assess whether the error had a substantial or injurious effect or influence in determining the
jury’s verdict using the factors set forth in Gonzalez. See Gonzalez, 544 S.W.3d at 373.

15
As set forth infra, the evidence of Appellant’s guilt in this case is overwhelming, which
weighs against a finding that this error was harmful. Similarly, the limiting instruction to the
jury regarding extraneous convictions mitigated the potential injury and weighs against a finding
of harmful error. Concerning the nature of the error, this factor weighs in favor of finding
harmful error because the error permitted the State prejudicially to infer that Appellant had a
violent character and likely acted in conformity with that character. See Arebalo, 143 S.W.3d at
407. However, we are mindful that the existence of the conviction was properly admitted, and
only the specific details of the victim’s injuries were erroneously presented to the jury, which
somewhat mitigates the concern regarding prejudice. Finally, although the details of the injury to
a child offense should not have been in evidence at all, it does not appear that the State unduly
emphasized those details while presenting its case at the guilt-innocence phase of trial. After
questioning Appellant about the nature of the injuries suffered by the child, the State’s attorney
did not revisit the issue at any point prior to the jury retiring for deliberations. Therefore, this
factor weighs against a finding of harm.
Based on the foregoing, we have fair assurance that the erroneous admission of details
underlying Appellant’s conviction for injury to a child did not influence the jury or influenced
the jury only slightly. See Barshaw, 342 S.W.3d at 93-94. Therefore, we conclude that the trial
court’s error in admitting evidence of those details did not affect Appellant’s substantial rights
and must be disregarded. See TEX. R. APP. P. 44.2(b). We overrule the remaining portion of
Appellant’s second issue.
DISPOSITION

Having overruled each of Appellant’s two issues, we affirm the judgment of the trial
court.

BRIAN HOYLE
Justice

Opinion delivered October 31, 2024.
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

OCTOBER 31, 2024

NO. 12-24-00116-CR

JOSEPH DAN FULLER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 413th District Court
of Johnson County, Texas (Tr.Ct.No. DC-F202300041)

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.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.