Justin Bryan Tucker v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00312-CR

JUSTIN BRYAN TUCKER,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 361st District Court
Brazos County, Texas
Trial Court No. 19-02932-CRF-361

MEMORANDUM OPINION

A jury found Appellant Justin Tucker guilty of the offenses of sexual assault and

assault family violence by strangulation. See generally TEX. PENAL CODE ANN. §§

22.01(b)(2)(B), 22.011(a)(1)(A). The jury then assessed Tucker’s punishment at eight

years’ imprisonment for each offense. The trial court sentenced Tucker accordingly. This

appeal ensued. We will affirm.
Background

Tucker and the complainant began dating in the summer of 2017 and, soon after,

moved in together. The complainant subsequently became pregnant and, in May 2018,

gave birth to their son. Shortly after the birth, Tucker and the complainant ended their

relationship, and the complainant moved out of the residence with their child. But

Tucker and the complainant continued to communicate with each other regularly.

The complainant testified that, on July 16, 2018, she agreed to return to the

residence to pick up some of Tucker’s laundry because she had taken the washer and

dryer when she had moved out. The complainant explained that while she was at the

residence, Tucker would also be able to see his son. The complainant testified that after

she arrived at the residence, however, Tucker made sexual advances toward her. The

complainant stated that she rebuffed the sexual advances. The complainant testified that

Tucker then started to “strangle” her. The complainant explained that Tucker “had one

hand around [her] throat and jaw and the other hand over [her] mouth and nose” such

that she could not breathe. The complainant testified that Tucker then sexually assaulted

her.

Issue One

In his first issue, Tucker contends that the trial court erred by excluding from

evidence Defense Exhibit 12, a text-message exchange from early July 2017 between

Tucker and the complainant, and Defense Exhibits 16 and 17, text-message exchanges

from late October 2019 between Tucker and his then girlfriend, V.R. Tucker argues that

Tucker v. State Page 2
all three exhibits were admissible under Rule of Evidence 803(5) and that Defense Exhibit

12 was also admissible under article 38.371 of the Code of Criminal Procedure.

AUTHORITY

If the trial court’s ruling merely offends a statute or the rules of evidence, the

erroneous admission or exclusion of evidence is nonconstitutional error governed by

Rule of Appellate Procedure 44.2(b). Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d); see TEX. R. APP. P. 44.2(b). Rule 44.2(b) provides that

we must disregard nonconstitutional error unless the error affects substantial rights. TEX.

R. APP. P. 44.2(b). In determining whether substantial rights were affected, “appellate

courts must decide whether the error had a substantial or injurious effect on the jury

verdict.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In conducting this

harm analysis, we consider the record as a whole. Id.

DISCUSSION

Defense Exhibit 12 reflects a text-message exchange from early July 2017 between

Tucker and the complainant in which the complainant stated that she wanted to have a

child, and Tucker stated that he was ready to have a child as well. The trial court excluded

the exhibit from evidence, but the following exchange took place between defense

counsel and the complainant about Defense Exhibit 12 during defense counsel’s cross-

examination of the complainant:

Q. . . . I’m going to show you what I’ve marked as Defendant’s
Exhibit 12. If you can, look through this and just tell me if you recognize it.

A. Yes, it was conversations that we had had.

Tucker v. State Page 3
Q. You mean you and [Tucker]?

A. Yes.

Q. Does that refresh your memory about conversations that you-
all had about kids?

A. Sure. It said that, yes, I did want a kid, but in here it doesn’t
state that I want to have one right now. I said I could get [my IUD] taken
out after a few months. There’s no timeline on that.

Q. If we look on the front page, does that say July 3, 2017?

A. Yes.

....

Q. . . . Does this at least refresh your memory about the
conversation?

A. Yes.

Q. Prior to me showing this to you, were you unable to
remember all of the specific dates and times and so forth in your
communications?

A. Yes. If it has the time stamp on it, then, yes.

Q. But does this refresh your memory that you in fact expressed
on July 3 of ’17 that you wanted a baby now?

A. I said I was tempted to.

Q. That’s not what you said, is it?

A. It literally says, I was tempted to.

Q. Well, if you go to the last page, did you indicate on July 4,
2017 at 11:29 a.m. that you were serious about having a kid right now?

A. Yes. Actually that’s his message. His message states that and
then I said yes. So I guess, yes.

Tucker v. State Page 4
Therefore, while Defense Exhibit 12 was excluded from evidence, the substance of the

exhibit was admitted into evidence.

Defense Exhibits 16 and 17 reflect text-message exchanges from late October 2019

between Tucker and his then girlfriend, V.R. In Defense Exhibit 16, V.R. sent Tucker

several pictures of his and the complainant’s child and told Tucker not to tell anyone that

she had sent the pictures to him. Tucker replied to V.R. by thanking her for sending the

pictures. In Defense Exhibit 17, Tucker informed V.R. that he was at the hospital where

his mother had taken him because of a dental problem. Tucker and V.R. then continued

to exchange text messages as Tucker left the hospital with his mother and picked up his

medicine. The trial court excluded these exhibits from evidence, but the following

exchange occurred between defense counsel and V.R. about Defense Exhibits 16 and 17

during defense counsel’s cross-examination of V.R.:

Q. . . . I’m going to show you what I’ve marked as Exhibit 16.
Could you thumb through that please and tell me if you recognize it?

A. These are messages between me and [Tucker].

Q. That was between you and [Tucker]; is that correct?

A. Yes, I believe so.

Q. Is that an accurate representation of that conversation during
that window in time?

A. I don’t even remember everything. It was so long ago. I
remember there was pictures being sent.

Q. You actually sent him some pictures in that exchange, correct?

A. Yes, sir.

Tucker v. State Page 5
Q. Please take a look at No. 17. Does that also appear to be an
exchange between you and [Tucker]?

A. Okay.

Q. Is that another exchange between you and him?

A. I’m not sure what the conversation was about other than what
it says.

....

Q. . . . October 23, 2019, does this refresh your memory of a text
conversation you had with [Tucker]?

A. I’m going to be completely honest, I do not remember this
whole conversation. That’s why I read the whole thing because I don’t
remember. I’m guessing he was sick.

Q. But you remember you-all exchanging and going back and
forth?

A. We would text, yeah.

Q. And then this one here, this one was actually - - in that one
you were actually sending him pictures of his son . . . ?

A. Yes, sir.

Q. Did he appear to be very grateful for you sending those to
him?

A. I think I had sent him pictures. It was more of me just feeling
bad and him telling me that he wasn’t allowed to see his kid. I don’t think
- - I mean - -

Q. I’m directing your attention - - without reading it and just to
refresh your memory.

A. Okay.

Q. I mean, was he - -

Tucker v. State Page 6
A. He sounded very grateful over text, yes.

Q. Extremely?

A. Yes.

Q. Was he very moved by that?

A. I have no idea.

Q. Well, did he indicate that he was very moved by that?

A. In the text.

Q. You didn’t want anyone to know that you had sent him the
pictures of his own son, correct?

A. Correct.

Therefore, as with Defense Exhibit 12, while Defense Exhibits 16 and 17 were excluded

from evidence, the relevant substance of the exhibits was admitted into evidence.

Because the relevant substance of Defense Exhibits 12, 16, and 17 was admitted

into evidence, any error in excluding the exhibits themselves did not affect Tucker’s

substantial rights. See Merrick v. State, 567 S.W.3d 359, 376 (Tex. App.—Fort Worth 2018,

pet. ref’d) (citing Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981)

(“This court has consistently held reversal is not required by exclusion of evidence where

the same testimony was later admitted without objection.”), and Owens v. State, No. 05-

12-01201-CR, 2014 WL 2568483, at *8 (Tex. App.—Dallas June 9, 2014, no pet.) (not

designated for publication) (“[E]rror in the admission or exclusion of evidence does not

affect substantial rights and is harmless if the evidence is cumulative of other evidence

admitted to prove the same fact.”)). Accordingly, we conclude that even if the trial court

Tucker v. State Page 7
erred in excluding Defense Exhibits 12, 16, and 17, such error was harmless. See TEX. R.

APP. P. 44.2(b); Morales, 32 S.W.3d at 867. Tucker’s first issue is overruled.

Issue Two

In his second issue, Tucker contends that the trial court erred in excluding certain

video and photographic evidence under Rule of Evidence 412. In the substance of his

briefing of this issue, Tucker appears to also argue that the evidence should have been

admitted under article 38.371 of the Code of Criminal Procedure.

During trial, Tucker presented to the trial court, outside the presence of the jury,

video and photographic evidence that purportedly showed consensual sexual activity

between Tucker and the complainant. Defense counsel described the video evidence

specifically as a video of about four-and-one-half minutes’ duration that Tucker and the

complainant “made of themselves wherein [the complainant] is clearly the aggressor in

the sexual act.” Tucker argued that the video and photographic evidence was admissible

under Rule of Evidence 412(b) to show consent and motive. Tucker also argued that the

evidence was admissible under article 38.371 of the Code of Criminal Procedure to show

the nature of the relationship between Tucker and the complainant. Defense counsel

stated:

[The complainant] has testified in such a way like she’s a docile fawn, just
a tender lamb who has just been bullied by and controlled by this man, my
client, and has basically submitted with everything that he’s gone along
with, when in fact she is quite aggressive in her sexual pursuit of my client.

The State responded by objecting to the admission of the evidence under Rule of

Evidence 403. The trial court sustained the State’s objection. The trial court further stated

Tucker v. State Page 8
that it would include the video and photographic evidence in a sealed bill of exception;

however, no formal bill of exception was ever filed and included in the appellate record.

Tucker later presented to the trial court, outside the presence of the jury, two

specific photographs of the complainant’s breasts and argued that such evidence was

admissible to rebut the complainant’s testimony that there had been no consensual sexual

conduct between Tucker and the complainant after they had ended their relationship in

May 2018. The State responded that it agreed that the photographs would be admissible

if the complainant denied sending the photographs but that it would otherwise again

object to the admission of the photographs under Rule of Evidence 403. The trial court

stated that the photographs would be admissible if the complainant denied sending

them. The complainant subsequently acknowledged the content and the dates of the

photographs in her testimony before the jury; therefore, the photographs themselves

were excluded from evidence.

The State initially argues that Tucker failed to preserve his second issue for

appellate review. We assume without deciding that this issue has been preserved for

review.

AUTHORITY

A trial court’s ruling to admit or exclude evidence is reviewed under an abuse-of-

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). “The

trial court does not abuse its discretion unless its determination lies outside the zone of

reasonable disagreement.” Id. The trial court’s ruling will not be disturbed as long as the

Tucker v. State Page 9
ruling is correct on any theory of law applicable to the ruling. De La Paz v. State, 279

S.W.3d 336, 344 (Tex. Crim. App. 2009).

Rule of Evidence 412 creates “an extremely high hurdle” for the admissibility of

evidence of specific instances of an alleged victim’s past sexual behavior. Todd v. State,

242 S.W.3d 126, 129 (Tex. App.—Texarkana 2007, pet. ref’d). Rule 412 provides in

relevant part:

(a) In General. The following evidence is not admissible in a prosecution
for sexual assault, aggravated sexual assault, or attempt to commit sexual
assault or aggravated sexual assault:

(1) reputation or opinion evidence of a victim’s past sexual behavior; or

(2) specific instances of a victim’s past sexual behavior.

(b) Exceptions for Specific Instances. Evidence of specific instances of a
victim’s past sexual behavior is admissible if:

....

(2) the evidence:

(A) is necessary to rebut or explain scientific or medical evidence
offered by the prosecutor;

(B) concerns past sexual behavior with the defendant and is offered
by the defendant to prove consent;

(C) relates to the victim’s motive or bias;

(D) is admissible under Rule 609; or

(E) is constitutionally required to be admitted; and

(3) the probative value of the evidence outweighs the danger of unfair
prejudice.

TEX. R. EVID. 412.

Tucker v. State Page 10
Under article 38.371 of the Code of Criminal Procedure, when the defendant’s and

the alleged victim’s relationship is a “dating relationship,” 1 “each party may offer

testimony or other evidence of all relevant facts and circumstances that would assist the

trier of fact in determining whether the actor committed the offense . . ., including

testimony or evidence regarding the nature of the relationship between the actor and the

alleged victim.” TEX. CODE CRIM. PROC. ANN. art. 38.371(a)–(b). The statute specifically

provides, however, that it “does not permit the presentation of character evidence that

would otherwise be inadmissible under the Texas Rules of Evidence or other applicable

law.” Id. art. 38.371(c).

Rule of Evidence 403 provides: “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403. Although the Rules of Evidence are

intentionally slanted toward the inclusion of all relevant evidence, Rule 403 gives the trial

court considerable discretion to exclude evidence when it appears to the individual judge,

in the context of that particular trial, to be insufficiently probative when measured against

the countervailing factors specified in the rule. Winegarner v. State, 235 S.W.3d 787, 791

(Tex. Crim. App. 2007).

When conducting a Rule 403 balancing test, courts should consider: (1) the

evidence’s probative force; (2) the proponent’s need for the evidence; (3) the evidence’s

1 A “dating relationship” is defined as “a relationship between individuals who have or have had a
continuing relationship of a romantic or intimate nature.” TEX. FAM. CODE ANN. § 72.0021(b).

Tucker v. State Page 11
potential to suggest a decision on an improper basis; (4) the evidence’s tendency to

distract the jury from the main issues; (5) any tendency for the jury to give the evidence

undue weight because it has not been fully equipped to evaluate the evidence’s probative

force; and (6) the likelihood that presenting the evidence will consume an inordinate

amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210

S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

DISCUSSION

Tucker argues that the trial court erred in excluding the video and photographic

evidence because he was entitled to present evidence showing the true nature of the

complainant’s relationship with him, her motive, and her consent. Tucker argues that,

without such evidence, the jury heard only the complainant’s story of the relationship, in

which she was portrayed “as a poor, innocent, victim who was an unwilling yet

submissive participant in [his] sexual aggression, and who was brutally attacked by

[him].” We conclude, however, that the trial court did not abuse its discretion in

excluding the video and photographic evidence under Rule 403.

We disagree with Tucker’s characterization of the complainant’s testimony about

the nature of her and Tucker’s sexual relationship. The complainant testified extensively

on the subject. The complainant stated that when she and Tucker were living together,

they had sexual relations almost every day. She said that Tucker was the one who almost

always initiated their sexual activity, and when asked by defense counsel if she was “just

going along, yielding,” or “just agreeing to make [Tucker] happy,” she replied that she

was. However, she also acknowledged in her testimony that she sometimes initiated the

Tucker v. State Page 12
sexual activity with Tucker. The complainant further testified that she sent Tucker many

nude photographs of herself. When defense counsel then asked if there were times that

she filmed herself having sexual relations with Tucker, the complainant initially stated

that there were times when Tucker filmed her but that she did not want to be filmed. But

the following exchange between defense counsel and the complainant then occurred:

Q. So do you know about how many times you-all recorded
yourselves? Well, let me ask you this. Were there times when you recorded
you and him having sex?

A. If there’s recordings, then, yes. I don’t - - I don’t understand.

Q. Well, I’m just asking if you actually - -

A. There are recordings, yes.

Additionally, when asked by defense counsel if she and Tucker “did some other stuff that

some folks don’t necessarily do,” the complainant answered, “Okay, yes.” The

complainant even acknowledged that “strangulation” was a part of their consensual

sexual activity on a few occasions, and when asked whose idea it was, she replied, “It

was a mutual agreement.”

Considering the admissions in the complainant’s testimony, we believe that the

trial court could have reasonably concluded that the defense had little need to present

the actual video and photographic evidence of the consensual sexual activity between

Tucker and the complainant and that the presentation of such evidence merely had the

potential to suggest a decision on an improper basis and had the tendency to distract the

jury from the main issues. We therefore conclude that the trial court did not abuse its

Tucker v. State Page 13
discretion in excluding the video and photographic evidence under Rule 403. See TEX. R.

EVID. 403; Gigliobianco, 210 S.W.3d at 641–42. We overrule Tucker’s second issue.

Issue Three

In his third issue, Tucker contends that the trial court erred in admitting

extraneous-offense evidence through the testimony of V.R.

AUTHORITY

As stated above, a trial court’s ruling to admit or exclude evidence is reviewed

under an abuse-of-discretion standard. Martinez, 327 S.W.3d at 736.

Rule of Evidence 404(b) precludes the admission of evidence of a crime, wrong, or

other act to prove a person’s character in order to show that the person acted in

conformity with that character on a particular occasion, but the rule allows for such

evidence to be admitted for other purposes, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R.

EVID. 404(b). The listed purposes “are neither mutually exclusive nor collectively

exhaustive.” De La Paz, 279 S.W.3d at 343. Therefore, although Rule 404(b) limits

character evidence, it is a rule of inclusion. Id. “The rule excludes only that evidence that

is offered (or will be used) solely for the purpose of proving bad character and hence

conduct in conformity with that bad character.” Id.

Rule of Evidence 403, as stated above, provides: “The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. When conducting a

Tucker v. State Page 14
Rule 403 balancing test, courts should consider: (1) the evidence’s probative force; (2) the

proponent’s need for the evidence; (3) the evidence’s potential to suggest a decision on

an improper basis; (4) the evidence’s tendency to distract the jury from the main issues;

(5) any tendency for the jury to give the evidence undue weight because it has not been

fully equipped to evaluate the evidence’s probative force; and (6) the likelihood that

presenting the evidence will consume an inordinate amount of time or merely repeat

evidence already admitted. See Gigliobianco, 210 S.W.3d at 641–42.

DISCUSSION

V.R. testified as follows: She began dating Tucker around April 2019. She did not

initially believe the complainant’s allegations against Tucker but began believing them

when Tucker also “strangled” her at the end of their four-month relationship. The

incident occurred after she and Tucker had been arguing. Tucker came into the bathroom

while she was using it and picked her up by her neck. Tucker dragged her into another

room by her neck, threw her on the ground, and hit her on the side of her head such that

she “almost got knocked out.” When she then opened her eyes, Tucker was “just sitting

over [her] staring at [her].”

Tucker initially argues that this extraneous-offense evidence was admitted in

violation of Rule 404(b) because it was elicited to prove his character to show that on a

particular occasion, he acted in accordance with that character. The State responds that

the extraneous-offense evidence was properly admitted to rebut Tucker’s defensive

theory that the complainant fabricated the allegations of the charged offenses.

Tucker v. State Page 15
Rebuttal of a defensive theory is one of the permissible purposes for which

extraneous-offense evidence may be admitted. See Moses v. State, 105 S.W.3d 622, 626

(Tex. Crim. App. 2003). More specifically, the State may present extraneous-offense

evidence to rebut a defensive theory of fabrication. See Bass v. State, 270 S.W.3d 557, 563

(Tex. Crim. App. 2008). To be admissible for rebuttal of a fabrication defense, “the

extraneous misconduct must be at least similar to the charged one.” Newton v. State, 301

S.W.3d 315, 317 (Tex. App.—Waco 2009, pet. ref’d) (quoting Wheeler v. State, 67 S.W.3d

879, 887 n.22 (Tex. Crim. App. 2002)). But the requisite degree of similarity is not that of

exacting similarity. Dennis v. State, 178 S.W.3d 172, 178–79 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d); see Newton, 301 S.W.3d at 318 (“Although some similarity is

required, the requisite degree of similarity is not as exacting as necessary when

extraneous-offense evidence is offered to prove identity by showing the defendants

‘system’ or modus operandi.”).

Here, immediately after the State made its opening statement, the defense made

its opening statement, which included the following:

But what happened was, . . . [the complainant’s] family becomes unhappy.
They want somebody of a higher caliber apparently than [Tucker]. . . .

So [the complainant] devises a plan. They do have a son . . . on May
10 of 2018 and they’re still together and they’re still doing sexual stuff
together. It’s not like they became distant shortly after that. But she starts
working on this plan and then all of a sudden on July 16 - - July 16 she
decides, oh, I’ve got the DNA now. It’s in me. So what she does is she calls
the police and she forms this plan and the plan is to get [Tucker] out of their
lives. . . .

....

Tucker v. State Page 16
. . . You’re going to find that she was very calm in her demeanor and
she had indicated that she wants to get full custody of her son and you’re
going to find there’s evidence that in fact this was part of her plan. . . .

....

. . . So this is all part of her plan to get [Tucker] out of their lives. . . .

. . . You will find that this is part of a plan and after she makes this
call, all of a sudden [Tucker] is getting called, like, what, what?

He’s baffled that all of a sudden now the police are interested in
talking to him. Then five days later - - there were some communications
after that, but about five days later, July 21, 2018, she ghosts him and he’s
like just gone, not in her life anymore and not in [their son’s] life. So this
has all been part of her plan.

Before V.R. testified, the defense then called Officer Blaine Schafer as a witness.

Officer Schafer testified that on July 16, 2018, he was employed by the College Station

Police Department and responded to the complainant’s phone call regarding the alleged

assault. Officer Schafer accompanied the complainant to the hospital and waited there

with her. When asked by the defense if he observed anything odd or suspicious during

that time, Officer Schafer replied that there was one statement. Officer Schafer testified

that the complainant made a specific comment about trying to obtain full custody of her

child and then asked him if this incident would help her in receiving full custody of her

child.

Considering the foregoing, we conclude that the defense opened the door to the

admission of V.R.’s extraneous-offense evidence to rebut the defensive theory of

fabrication presented in the defense’s opening statement and Officer Schafer’s testimony.

See Bass, 270 S.W.3d at 563. We further conclude that the alleged extraneous offense is

Tucker v. State Page 17
sufficiently similar to the charged offenses. See Newton, 301 S.W.3d at 317. In both

instances, a woman with whom Tucker had an intimate relationship alleged that he

followed her into the bathroom and then “strangled” her.

Tucker argues that V.R.’s extraneous-offense evidence was nevertheless irrelevant

because it postdated the charged offenses. But the admissibility of extraneous offenses

under Rule 404(b) is not limited to those occurring before the charged offenses. Hegar v.

State, 11 S.W.3d 290, 297 (Tex. App.—Houston [1st Dist.] 1999, no pet.); see TEX. R. EVID.

404(b).

Tucker next contends that V.R.’s extraneous-offense evidence was admitted in

violation of Rule 403.

Tucker first argues that his alleged actions in 2019 have no probative value as to

his alleged actions in 2018. However, we have already concluded that even though the

alleged extraneous offense occurred after the charged offenses, the extraneous-offense

evidence was probative to rebut Tucker’s defensive theory of fabrication.

Tucker also argues that there was no need for the extraneous-offense evidence

because it was merely cumulative of other evidence. But the State’s case relied

predominantly on the testimony of the complainant because only the complainant,

Tucker, and their infant son were eyewitnesses to what occurred in the residence on July

16, 2018. The State therefore needed the extraneous-offense evidence to rebut the

defense’s theory that the complainant fabricated the allegations against Tucker to obtain

full custody of their child.

Tucker v. State Page 18
Extraneous-offense evidence does have some tendency to suggest a decision on an

improper basis. However, this danger of unfair prejudice was counterbalanced, to some

degree, by the trial court’s limiting instruction contained in the court’s charge. See

Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We generally presume the

jury follows the trial court’s instructions in the manner presented.”). Additionally, the

presentation of the extraneous-offense testimony did not consume an inordinate amount

of time.

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.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001), and Joiner v. State, 825 S.W.2d 701, 708

(Tex. Crim. App. 1992)). We cannot say here that there is a “clear disparity” between the

danger of unfair prejudice posed by the extraneous-offense evidence and its probative

value.

For these reasons, we hold that the trial court did not abuse its discretion in

admitting the extraneous-offense evidence. We overrule Tucker’s third issue.

Conclusion

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

MATT JOHNSON
Justice

Tucker v. State Page 19
Before Chief Justice Gray,
Justice Johnson, and
Justice Rose 2
Affirmed
Opinion delivered and filed August 29, 2024
Do not publish
[CR25]

2 The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002,
75.003.

Tucker v. State Page 20