Rodney Dewayne Kuykendall v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

No. 10-23-00066-CR

Rodney Dewayne Kuykendall,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2022-472-C1

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Rodney Dewayne Kuykendall was convicted of one count of Assault

Family Violence with a Prior (enhanced) and one count of Repeated Violation

of Condition of Bond (enhanced), see TEX. PENAL CODE §§ 22.01(b)(2); 25.072,

and sentenced to 20 years in prison for each count. Because the trial court did

not abuse its discretion in admitting video evidence, there was no error in the

jury charge, and Kuykendall’s complaint regarding the trial court’s order to
withdraw funds is a civil matter; but because the trial court’s Judgment of

Conviction by Jury in Count No. II erroneously reflected the statute for the

offense of conviction, we affirm the trial court’s Judgment of Conviction by Jury

as to Count No. I and affirm as modified the trial court’s Judgment of

Conviction by Jury as to Count No. II.

BACKGROUND

Kuykendall and Sydney had been in a relationship. Kuykendall had

previously been convicted of assaulting a former girlfirend. Kuykendall

punched Sydney in the face in March of 2021. In July of 2021, bond conditions

were issued to Kuykendall prohibiting him from contacting Sydney or going to

her residence. In October of 2021, Kuydendall went to Sydney’s apartment

and ultimatley chased her around the parking lot, threatening to shoot her in

the face. A neighbor saw the incident and called police. Then, in December of

2021, Kuykendall, after staying in Sydney’s appartment for a few days, became

angry with Sydney and hit her wrists with a narrow board from the bottom of

her son’s bed. Police were called by the same neighbor, and while Kuykendall

was being arrested, he threatened Sydney in front of the arresting officers.

EXTRANEOUS BAD ACTS

In his first issue, Kuykendall contends that the trial court abused its

discretion, under Texas Rules of Evidence 404(b) and 403, in permitting the

State to play video recordings, specifically State’s Exhibits 16, 18, and 19,
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during the guilt/innocence phase, of Kuykendall’s “profanity-laced,

threatening, and irrelevant post-arrest conduct.”

We review a trial court's decision to admit or exclude extraneous offense

evidence under Rules 404(b) and 403 for an abuse of discretion. Perkins v.

State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022). The trial court does not

abuse its discretion unless its determination lies outside the zone of reasonable

disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

If the trial court's evidentiary ruling is correct on any theory of law applicable

to that ruling, it will not be disturbed on appeal even if the trial judge gave the

wrong reason for his correct ruling. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009).

Rule 404(b)

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. 1 TEX. R.

EVID. 404(b)(1). It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Id. (b)(2). These “exceptions” are neither

mutually exclusive nor collectively exhaustive. De La Paz, 279 S.W.3d at 343;

1
Rule 404(b) is a rule of inclusion rather than exclusion and excludes only that evidence that is offered,
or will be used, solely for the purpose of proving bad character and conduct in conformity with that
bad character. De La Paz, 279 S.W.3d at 343.

Kuykendall v. State Page 3
Pondexter v. State, 942 S.W.2d 577, 583-84 (Tex. Crim. App. 1996). There are

many other uses for evidence of criminal acts. Montgomery v. State, 810

S.W.2d 372, 377 (Tex. Crim. App. 1990) (op. on reh’g).

Under this section, Kuykendall asserts that everything captured on the

videos introduced as State’s Exhibits 16, 18, and 19 pertained to bad acts that

were outside the charged offenses because Kuykendall was already in a patrol

car and there could be no other permissive use for those bad acts.

We first note that Kuykendall did not object to Exhibits 16 and 18 on the

basis of Rule 404(b). Thus, this specific complaint as to those exhibits is not

preserved for our review and is overruled. See TEX. R. APP. P. 33.1.

Kuykendall objected to Exhibit 19 on the basis of Rule 404(b); however,

it is well-established that "erroneously admitted evidence will not result in

reversal when other such evidence was received without objection, either

before or after the complained-of ruling." Coble v. State, 330 S.W.3d 253, 282

(Tex. Crim. App. 2010); see also Estrada v. State, 313 S.W.3d 274, 302 n.29

(Tex. Crim. App. 2010). Exhibit 19 and Exhibit 18 captured the same or similar

information but from different perspectives. Exhibit 18 was from the body-

cam of the arresting officer, Officer Cano. It captured Kuykendall’s arrest,

placement in the patrol vehicle, and transport to the jail. It also captured his

defiant behavior, his language, and his action of kicking at the side window

bars of the patrol vehicle. Exhibit 19 was from the in-car camera in Cano’s
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patrol vehicle. It captured the same information as Exhibit 18 except

Kuykendall’s arrest. Because the same or similar information was admitted

through Exhibit 18 without an objection based on Rule 404(b), if there was any

error in the admission of Exhibit 19 over Kuykendall’s Rule 404(b) objection, it

was harmless. See Coble, 330 S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29.

Kuykendall’s first issue as to Rule 404(b) is overruled.

Rule 403

Under this section of his brief, Kuykendall asserts that even assuming

Exhibits 16, 18, and 19 were relevant, the trial court abused its discretion in

admitting the exhibits over Kuykendall’s Rule 403 objection and was harmed.

Initially, we note that although Kuykendall objected to the admission of

all three exhibits pursuant to Rule 403, he does not discuss in his brief how the

trial court abused its discretion regarding the admission of Exhibit 16.

Kuykendall does not reference any part of the exhibit as violating Rule 403’s

mandate: that even relevant evidence may be excluded if its probative value

is substantially outweighed by a danger of unfair prejudice. TEX. R. APP. P.

403. Accordingly, Kuykendall’s Rule 403 complaint about State's Exhibit 16 is

inadequately briefed and presents nothing for review. See TEX. R. APP. P.

38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also

Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—Waco 2020, no pet.). This part

of Kuykendall’s first issue is also overruled.
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Next, we must address Kuykendall’s assertion that the trial court was

required to view the videos before ruling on Kuykendall’s Rule 403 objection,

and because the trial court did not do so, the trial court abused its discretion

in admitting the exhibits. We disagree with Kuykendall.

Assuming without deciding the trial court in this case did not preview

Exhibits 18 and 19, a determination we specifically do not make, 2 the cases on

which Kuykendall relies do not support his assertion. We agree that a trial

court should view video evidence before ruling on admissibility when the

contents of the video are at issue, even though circumstances might arise

where such viewing is unnecessary. Diamond Offshore Servs. v. Williams, 542

S.W.3d 539, 545-47 (Tex. 2018); In re Commitment of Cordova, 618 S.W.3d 904,

923 (Tex. App.—El Paso 2021, no pet.). However, the remedy for a trial court’s

failure to preview video exhibits is not a finding of an abuse of discretion; the

remedy is conducting a Rule 403 analysis. See Diamond Offshore, 542 S.W.3d

at 547 (“Because the trial court did not properly exercise its discretion in

excluding the surveillance video without viewing it, we conduct our own

independent Rule 403 analysis.”). See also Salazar v. State, 90 S.W.3d 330,

337-38 (Tex. Crim. App. 2002); Gordon v. State, 784 S.W.2d 410, 413 (Tex.

Crim. App. 1990). Accordingly, we do not modify our review of this part of

2
The record is unclear whether the trial court did or did not review the exhibits either at a pretrial
hearing regarding all exhibits or prior to the introduction of these particular exhibits.
Kuykendall v. State Page 6
Kuykendall’s first issue.

Texas Rule of Evidence 403 allows the trial court to exclude evidence

that may be otherwise relevant "if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence." TEX. R. EVID. 403. To determine

whether evidence is admissible under Rule 403, we use the Montgomery

factors: (1) the strength of the evidence's probative value; (2) the potential for

the evidence to "impress the jury in some irrational but nevertheless indelible

way;" (3) the amount of time required at trial to develop the evidence; and (4)

the proponent's need for the evidence. Hart v. State, 688 S.W.3d 883, 891 (Tex.

Crim. App. 2024); Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim.

App. 1990) (op. on reh’g). All testimony and physical evidence are likely be

prejudicial to one party or the other. Davis v. State, 329 S.W.3d 798, 806 (Tex.

Crim. App. 2010); Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App.

1996). It is only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value that Rule 403 is

applicable. Davis, 329 S.W.3d at 806; Williams v. State, 958 S.W.2d 186, 196

(Tex. Crim. App. 1997).

Although Kuykendall argues that events occurring after his arrest have

no probative value, we disagree. Evidence of Kuykendall’s actions on the
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videos such as threatening Sydney and calling her derogatory names,

threatening the arresting officer, and Kuykendall’s defiant behavior, cussing,

and kicking the side window bars in the patrol vehicle with both legs at full

force, tends to make a fact of consequence, that Kuykendall assaulted Sydney

and consequently, by being near her, violated his bond conditions, more likely

than not. Further, the State needed this evidence. Kuykendall’s counsel had

implied during trial that Sydney was the first aggressor and that the police

were unsympathetic to Kuykendall’s claim that Sydney struck him. Counsel

also argued to the jury that Sydney was not credible because she had used

meth and prior to trial, had signed and notarized a statement of non-

prosecution. Further, not only did the videos show Kuykendall’s aggressive

behavior, but they also showed Sydney’s demeanor of defeat and fear when

Kuykendall was arrested, all of which supported the State’s charges against

Kuykendall. The presentation of the two video exhibits consumed 22 pages,

about one-third, of Officer Cano’s testimony. This was not an inordinate

amount of time considering the entire State’s presentation of witnesses

consumed 170 pages. And, while the admission of these arrest and

transportation videos may be prejudicial, there was nothing in the videos to

suggest the jury could have been impressed in some irrational but nevertheless

indelible way.

Accordingly, based on our review of the record and after weighing the
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Montgomery factors, we conclude that a balance of the factors shows the trial

court did not abuse its discretion in admitting State’s Exhibits 18 and 19 over

Kuykendall’s Rule 403 objection.

Kuykendall’s first issue as to Rule 403 is overruled.

JURY CHARGE OR JUDGMENT ERROR

In his next two issues, Kuykendall complains that the jury charge was

egregiously erroneous because it allowed the jury to convict him of the offense

of Repeated Violation of Conditions of Bond, Texas Penal Code § 25.072, on

conduct that did not violate the statute (Issue 2), or, in the alternative, the trial

court’s Judgment of Conviction by Jury, Count No. II, incorrectly lists the

statute for the offense as Section 22.01 Texas Penal Code instead of Section

25.072 Texas Penal Code (Issue 3).

In his second issue, Kuykendall asserts that a violation of the charged

offense of Repeated Violation of Condition of Bond, as set out in Texas Penal

Code § 25.072, requires proof that a communication was made in a threatening

or harassing manner. Thus, his argument continues, jury charge instructions

allowing for a conviction based on non-threatening or non-harassing

communication was erroneous and egregiously harmful. Kuykendall

misinterprets the statute.

Section 25.072 requires an offender to engage in conduct that constitutes

an offense under Section 25.07, Violating Conditions of Bond in a Family-
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Violence Case. Kuykendall insists that the only way to violate section 25.07 is

pursuant to subsection (a)(2)(A), communicating in a threatening or harassing

manner. However, subsection (a)(2)(C) of section 25.07 allows for a conviction

based on communications “in any manner with the protected individual.”

(Emphasis added). Kuykendall’s conditions of bond prohibited

communications “directly or indirectly” with Sydney. Thus, there was no error

in the jury charge.

Kuykendall’s second issue is overruled.

As an alternative argument to his second issue, Kuykendall asserts in

his third issue that the Penal Code statute referenced in the judgment in Count

No. II as the provision violated is incorrect. Kuykendall is correct. The statute

referenced should be section 25.072.

An intermediate appellate court may reform a trial court's judgment to

make the record speak the truth when it has the necessary data and

information to do so. See TEX. R. APP. P. 43.2(b). Accordingly, Kuykendall’s

third issue is sustained, and the trial court’s judgment is modified to reflect

section 25.072 as the offense for which Kuykendall was convicted.

ORDER TO WITHDRAW FUNDS

In his fourth and final issue, Kuykendall complains that the trial court

erroneously signed an Order to Withdraw Funds from Kuykendall’s inmate

account for the payment of costs. Kuykendall is correct that a pending “appeal
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suspends the obligation to pay court costs.” Dulin v. State, 620 S.W.3d 129,

130 (Tex. Crim. App. 2021). However, a challenge to an order to withdraw

funds is civil in nature and not part of the underlying criminal case. Harrell

v. State, 286 S.W.3d 315, 316 (Tex. 2009). Accordingly, Kuykendall’s fourth

issue is overruled.

CONCLUSION

Having overruled Kuykendall’s first, second, and fourth issues, yet

having sustained Kuykendall’s third issue, we affirm the trial court’s

Judgment of Conviction by Jury as to Count No. I, modify the trial court’s

Judgment of Conviction by Jury as to Count No. II to reflect Texas Penal Code

section 25.072 as the statute for which Kuykendall was convicted, and affirm

the trial court’s Judgment of Conviction by Jury as to Count No. II as modified.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: March 13, 2025

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Affirmed as modified
Do Not Publish
[CR25]

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