Luis Alonzo Perez, Jr. v. the State of Texas

Fourth Court of Appeals
                                        San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-24-00719-CR

                                        Luis Alonzo PEREZ, Jr.,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                    From the 293rd Judicial District Court, Maverick County, Texas
                                 Trial Court No. 22-07-08349-MCR
                              Honorable Maribel Flores, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Irene Rios, Justice
                  Lori Massey Brissette, Justice
                  Adrian A. Spears II, Justice

Delivered and Filed: April 22, 2026

AFFIRMED

           In three issues, appellant Luis Alonzo Perez, Jr. appeals his burglary of a habitation with

attempt to commit aggravated assault conviction. Specifically, Perez contends the evidence is

insufficient to support his conviction, the trial court erred in admitting extraneous offense

evidence, and the trial court also erred in allowing witnesses to testify about how the incident

personally impacted them. We affirm.
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                                          BACKGROUND

       Undisputedly, Perez and Brian Davila, the victim, had an acrimonious relationship. Brian

was married to Alexis De Luna at the time of the incident. However, when Alexis was younger,

Alexis and Perez were friends who also had a casual sexual relationship, potentially contributing

to the poor relationship between Perez and Brian. One evening while Brian and Alexis were at

Alexis’s mother’s house with several family members, Perez forced his way inside the house as

he held a knife and threatened to harm Brian. Family members tried to stop Perez.

       The State indicted Perez with burglary of a habitation with attempt to commit a felony,

aggravated assault with a deadly weapon. A jury found Perez guilty of the alleged offense. The

trial court adopted the jury’s sentencing recommendation and sentenced Perez to fourteen years’

imprisonment. Perez appeals.

                                      LEGAL SUFFICIENCY

       In his first issue, Perez argues the evidence is insufficient to support his burglary of a

habitation with attempt to commit aggravated assault conviction based on how the State indicted

and convicted him under the Texas Penal Code. See TEX. PENAL CODE ANN. § 30.02(a)(3), (d).

       A. Standard of Review

       When reviewing the sufficiency of the evidence, we determine whether, “‘viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Witcher v. State, 638 S.W.3d 707,

709–10 (Tex. Crim. App. 2022) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This

standard coincides with the jury’s responsibility “to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319. The factfinder may and should draw “reasonable inferences” from the evidence but




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may not draw conclusions based on “mere speculation.” Hooper v. State, 214 S.W.3d 9, 15–16

(Tex. Crim. App. 2007).

       The factfinder alone judges the evidence’s weight and credibility. See TEX. CODE CRIM.

PROC. ANN. art. 38.04; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We may

not reevaluate the evidence’s weight and credibility and substitute our judgment for the

factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reasonable based on the cumulative force of all the evidence when viewed in the light most

favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). We

must presume the factfinder resolved any conflicting inferences in favor of the verdict, and we

must defer to that resolution. See id.; Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012) (reviewing court must not usurp the jury’s role by “substituting its own judgment for that of

the jury”); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (reviewing court must

not sit as thirteenth juror). “Although the parties may disagree about the logical inferences that

flow from undisputed facts, where there are two permissible views of the evidence, the

[factfinder]’s choice between them cannot be clearly erroneous.” Evans v. State, 202 S.W.3d 158,

163 (Tex. Crim. App. 2006) (internal quotations omitted).

       We measure the evidence by the elements of the offense as defined by the hypothetically

correct jury charge. 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.




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        B. Applicable Law

        Specific to the State’s indictment of Perez, a person commits the offense of burglary if,

without the effective consent of the owner, he enters a habitation and commits or attempts to

commit a felony. See TEX. PENAL CODE ANN. § 30.02(a)(3); see also id. § 22.02(b) (indicating that

aggravated assault is a felony). Burglary becomes a first-degree felony offense, applicable here,

when the premises is a habitation and the defendant entered and committed or attempted to commit

a felony other than felony theft, such as aggravated assault in this case. See id. § 30.02(d). “[E]nter”

as specifically defined by the burglary statute, and as charged under the indictment here, means

“to intrude: (1) any part of the body; or (2) any physical object connected with the body.” Id. §

30.02(b).

        Under the facts of this case, a person commits or attempts to commit aggravated assault if

the person commits or attempts to commit assault as defined by Texas Penal Code section 22.01,

and the person “uses or exhibits a deadly weapon during the commission of the assault.” Id.

22.02(a)(2). A “deadly weapon” includes “anything that in the manner of its use or intended use

is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). A person commits

assault if the person intentionally or knowingly threatens another with imminent bodily injury. See

id. §22.01(a)(2). “Bodily injury” means “physical pain, illness, or any impairment of physical

condition.” Id. § 1.07(a)(8). Although not defined in the Texas Penal Code, the Texas Court of

Criminal Appeals has defined “imminent” to mean “‘ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near.’” Garcia v. State, 367 S.W.3d 683, 689

(Tex. Crim. App. 2012) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)

(internal quotations omitted)).




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       A person acts intentionally, or with intent, when it is his conscious objective or desire to

engage in the conduct or cause the result. See TEX. PENAL CODE ANN. § 6.03(a). A person acts

knowingly, or with knowledge, when he is aware of the nature of his conduct or that the

circumstances exist, or that his conduct is reasonably certain to cause the result. See id. § 6.03(b).

       C. Applicable Facts

       Juana A. De Luna lives and owns the house at which several family members live or stay,

including Maria Fuentes, sister-in-law Deyanira Martinez Fuentes, and daughters Indira De Luna,

Janale De Luna, Alexis De Luna Lopez, and Alejandra De Luna. On the night of the incident,

Maria, Deyanira, Indira, Janale, Alejandra, Alexis, Brian, and three minor children were at the

house. Juana was working out of town. She knew Perez because they had previously worked

together at a fast-food restaurant. Juana testified that she had never invited Perez to her house and

neither had Alexis nor Deyanira to her knowledge. With the exception of the minor children and

Brian, who was deceased at the time of trial, everyone who was at the house testified at trial.

       According to Alexis, the day before the incident she, Brian, and their children went to a

local pizza place where she saw Perez with his family. After seeing Perez, Alexis testified she

invited her sister Indira and Indira’s husband to join them at the pizza place, and they did. Alexis

and her family left before Perez’s family. Perez’s mother subsequently claimed Brian scratched

her car in the parking lot. Indira acknowledged being at the local pizza place the night before the

incident but claimed nothing happened to cause Perez to come to the house the night of the

incident. Indira was unaware that Perez’s mother’s car was scratched at the pizza place.

       The following night, Maria and Deyanira were going to church and had stepped outside

the house when they saw the lights of a vehicle, thinking it was their ride to church. Alexis claimed

that right after they stepped outside, Brian stepped outside then came back into the house, and then




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she stepped outside. Once outside, Alexis saw Perez and his brother coming towards her. Alexis

testified Perez appeared mad and was carrying a knife. When she stepped into his path, he began

screaming in Spanish, “Get that s-- of a b----[,]” which Alexis understood as referring to Brian.

Perez saw Brian inside the house and began running towards the door causing Alexis to run back

inside the house. Alexis claimed her family was trying to force the door shut but could not because

Perez had his foot inside the house. Alexis added that Perez had more than half his body inside the

house at one time. Because Perez continued screaming and trying to come all the way into the

house, Alexis explained Maria, Deyanira, Indira, and Janale all pushed on the door to prevent him

from coming inside any further. Alexis said that in addition to Perez and his brother pushing the

door to force it open, Perez was also stabbing the door with the knife. Perez and his brother left

when they heard police sirens. Once Perez left, Alexis noticed the tires on Brian’s car were slashed.

       Alexis testified she asked Perez what he wanted as he rushed towards the house yelling.

However, Alexis denied that she heard Perez yelling about confronting Brian regarding what

allegedly happened to Perez’s mother’s car the night before at the pizza place. Alexis could not

describe the knife Perez carried that night, but she saw the tip of it, and testified it was silver.

According to Alexis, Perez was trying to get inside the house to get Brian, because despite Perez

yelling for him to come out, Perez knew Brian would not voluntarily step outside of the house.

       The other witnesses testified similarly. They testified Perez forced the door open enough

for part of his body to enter the house. They also testified that Perez had a knife and stabbed the

outside of the door with it. Except Maria, whose family members described as being in shock and

unable to recall what was transpiring, the witnesses also heard Perez yelling, demanding to get to

Brian. While Alexis’s testimony provided some details of the incident, the other witnesses’

testimony provided slightly different details.




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       Maria explained that she was waiting for a ride to church, and when she heard a vehicle

approaching, thinking it was her ride, she opened the door and saw two men running towards her.

Maria stated the older, taller one was carrying a weapon described as a knife or “jackknife.” Maria

saw the blade. Maria started pushing the door closed from inside the house, but the man got his

foot in the house. After taking his foot out, Maria claimed that he began hitting the outside of the

door with the knife, and she could feel the impact with her hand still on the door. Maria testified

that she did not hear the man say anything; rather, she repeatedly told him to stop and that she had

children and two pregnant women in the house. Maria did not know what Brian was doing during

the incident; she only knew he was in the living room and had stood up from sitting on the couch.

She denied Brian went outside when she originally opened the door. Rather, she claimed Brian did

not go outside until the men left when he went out through the backdoor after seeing the tires on

his car slashed.

       Deyanira testified she too was waiting for the ride to church. After Maria opened the door

because they thought their ride had arrived, they soon realized it was not their ride. Deyanira

testified Alexis had stepped outside, and Perez was coming toward the house. Deyanira did not see

Perez carrying anything. She just remembered his face. Maria attempted to close and lock the door

but could not, so Indira attempted to close it. However, Perez was able to get his foot and hand

inside the house and was “trying to put his face inside.” Deyanira stated that Perez said to “get

Brian outside, to put him outside. He wanted Brian.”

       After struggling with Perez’s attempt to come further into the house, Deyanira testified the

door was finally closed and locked. Once the door was closed, Deyanira heard Perez and his

brother hitting the door with some type of weapon that she did not see, but she felt the impact on

the door.




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       After the commotion at the front door stopped, Deyanira testified she followed Brian out

the back door, and when he saw the slashed tires on his car, he tried to go to the front of the house,

but she stopped him. The police then arrived. Deyanira denied that Brian went outside while Perez

and his brother were at the front door of the house, even when he heard them calling for him.

       Indira testified that when she saw Perez and his brother coming toward the house, she

immediately stood up and went to the door because she was “trying not to let him in because, I

mean, my grandma and my aunt, they’re already [elderly]. My–two of my sisters were pregnant, I

wasn’t going to let them get hurt.” She joined the others in pushing the door to keep Perez from

coming inside, but Perez was able to step inside, forcing half of his body past the doorway. Indira

added that as they were all struggling to get Perez out, he was screaming and trying to get to Brian.

Perez was screaming and repeating, “Get him out, get him out, get Brian out[!] Get–get–get him

the hell out of there[!]” Indira added that Perez also said, “Why do you think you’re big sh-- and

you’re behind the–the woman? You’re in between women and you don’t want to come out.” She

described the scene as chaotic; everyone was screaming, scared, and did not know what to do as

nothing like this had ever happened.

       Indira saw both Perez and his brother with knives. She claimed that she could hear Perez

and his brother stabbing the metal door of the house. In addition to the stab marks on the outside

of the front door, Indira also saw the tires on Brian’s car slashed after Perez left. The police showed

up within minutes of Perez leaving. Indira testified she saw a third person with Perez and his

brother but could not tell who it was, as it was dark, and he was standing back.

       According to Janale, Maria had stepped outside thinking her ride to church had arrived, but

she came back inside the house telling them it was not her ride. Janale stated Maria appeared

nervous and claimed, “they were coming for her.” Janale looked out the window and noticed Perez




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and his brother running toward the front door; she saw Perez had a knife with a “brownish” handle.

Janale explained that as Deyanira and Indira were trying to close the door, Perez and his brother

were also pushing to open the door. Perez forced his foot and, at one point, half of his body inside

the house. Janale called the police. Brian was in the kitchen, and Janale described him as mad and

wanting to go outside, but they would not let him because it would have been Brian against Perez,

who had a knife, and Perez’s brother. Janale said that Brian feared what was transpiring.

       Janale heard Perez screaming about getting Brian out and he thought he was very tough,

and “[l]et’s not be an a--. Why was he hiding behind all the women?” Janale said Perez kept

repeating, “Get Brian out. Get Brian out.” Janale added that she also heard Perez and his brother

stabbing the door with the knives that made a squeaking noise as the knives went in and out of the

metal door. Janale explained that she could see Perez when he was forcing himself inside the house

as well as stabbing the door with the knife. Although Janale asked Perez what he wanted and told

him to leave; Perez would not stop and kept screaming for Brian to come outside.

       After hearing the police sirens, Janale said Perez and his brother ran away. After Perez left,

Janale said they went outside, and she noticed the slashed tires on the passenger side of Brian’s

car. Janale said that during the incident, there was a lot of screaming and crying, and the children

were scared.

       Eagle Pass Police Department Officer Joe Rivera and now Sergeant Luis Sanchez, both

wearing body-cameras, responded to the call at the house, and upon arrival noticed females waiting

outside the residence. Sergeant Sanchez described the women as panicked and scared, and some

were shaking. Officer Rivera noticed the slashed passenger-side tires of Brian’s car. Officer Rivera

also observed damage to the front door, described as two holes, and damage to the door frame.

Although the witnesses were talking over one another and providing various details of the incident,




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Sergeant Sanchez was informed that Perez and his brother were carrying knives and that Perez

forced himself partially into the house. Based on Sergeant Sanchez’s investigation, he determined

that Perez made partial entry into the house intending to cause harm to Brian, who remained inside

the house. According to Officer Rivera’s investigation, at some point Brian had to be held back,

but from what and when he did not know.

       Former Eagle Pass Police Department Detective Ricardo Salazar investigated this case. In

addition to the burglary case, Detective Salazar knew about the possible criminal mischief case in

which Perez’s mother claimed Brian had damaged her car in a parking lot at the pizza place. Based

on Detective Salazar’s investigation, including surveillance video of the parking lot, he could not

determine that Brian damaged Perez’s mother’s car. When Detective Salazar investigated the

present case and went to the house, he did not talk to anyone but saw the two holes in the front

door. Later, Detective Salazar took statements from the females regarding the incident. Detective

Salazar also contacted Perez by phone, and Perez agreed to schedule a meeting with him.

       Following an evidentiary hearing addressed below, former Detective Aldolfo Garza

testified about investigating what was labeled a deadly conduct case involving Perez and Brian in

a local convenience store parking lot that occurred approximately six months prior to the incident

at issue. According to Detective Garza, Brian contacted police complaining about Perez’s actions

in the parking lot. Detective Garza made a recording of clips of the surveillance video taken of the

alleged incident. The video begins with Perez driving his SUV into the parking lot, parking in front

of the store, and entering the store. The video then shows Perez inside at the back of the store and

then gets in line to pay. After Brian enters the store, he walks past the front of the line by the

cashier. It appears from the video footage that Brian and Perez exchange glances and then possibly

words. The following video clip shows the parking lot after Perez is back in his SUV, and then




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Brian leaves the store. Brian walks past the front of Perez’s SUV toward his car that is parked on

the passenger side of Perez’s SUV, possibly making a gesture toward Perez. Next, Perez gets out

of his SUV tucking a pistol inside his waistband. Perez walks toward Brian, which Detective Garza

concludes is to confront and harm Brian. In the last clip, Perez continues approaching Brian when

a woman and man exit Perez’s SUV. Alexis also gets out of Brian’s car. The woman from Perez’s

SUV steps in front of Perez attempting to hold him back, including grabbing his arms, as Perez

pulls the pistol out of his waistband pointing it downward. With the pistol still in his hand, Perez

moves toward Brian, who remains beside his car not responding. Detective Garza testified the

video footage does not show Brian with any weapon. Brian and Alexis then get into their car and

drive away as Perez stands next to his SUV. Perez gets into his SUV and exits the parking lot.

       Brian did not follow up with Detective Garza. Detective Garza stated the incident was

viewed as a deadly conduct offense. He explained deadly conduct occurs when someone recklessly

engages in conduct that places someone else in imminent danger of serious bodily injury. See TEX.

PENAL CODE ANN. § 22.05(a). Referring to the video of the incident, Detective Garza opined

Perez’s action of taking out a gun in public without regard for the consequences, such as

discharging and injuring a bystander, constitutes deadly conduct. Additionally, Perez was twenty

years old at the time of the incident, too young to legally own a pistol.

       Alexis was called back to testify only about the parking lot incident. Alexis testified she

stayed in the car with their infant. She described that as Brian was coming back from the store

toward the car, she saw Perez get out of his SUV and come toward Brian. Alexis got out of the car

and went toward Brian, and then she saw Perez had a gun. Alexis explained she was scared because

her infant was in the car and Perez was approaching Brian.




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       D. Analysis

       Perez challenges the sufficiency of the evidence based on the State’s indictment. He asserts

the State failed to prove he attempted to assault Brian with a deadly weapon inside a habitation.

That is, Perez contends the State failed to prove he attempted to threaten Brian with imminent

bodily injury while Perez was inside the residence. We disagree.

       While the evidence did not indicate exactly which family members lived at the house

consistently, it is undisputed that people live at the house, and thus the house is considered a

habitation. See id. § 30.01(1) (defining “[h]abitation”). Although the witnesses’ testimony varies

in some respects—whether Maria, Alexis, or Brian went outside before Perez and his brother

charged toward the front door, exactly how much of Perez’s body came into the house, or which

family members pushed at the door—all of the witnesses provided a similar account of Perez and

his brother forcing the door open enough for Perez to place part of his body, particularly his foot,

inside the house while they pushed back at the door trying to prevent Perez from coming

completely inside the house. See TEX. PENAL CODE ANN. § 30.02(b)(1) (explaining for purposes

of committing burglary a person “enter[s]” when he intrudes “any part of the body”). The evidence

was undisputed that Perez was not invited to the house and did not have consent to enter the house.

       Moreover, although the witnesses’ testimony varies regarding whether Perez’s brother had

a knife, what kind of knife Perez had, or how Perez carried the knife, their testimony was consistent

that Perez had a knife in his hand. Id. § 1.07(a)(17)(B); see also Johnson v. State, 509 S.W.3d 320,

322–23 (Tex. Crim. App. 2017) (explaining that a factfinder’s determination of whether a knife is

a deadly weapon depends on if the defendant’s use or intended use could cause death or serious

bodily injury). Additionally, apart from Maria, whose family members described as being in shock




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from the incident, the rest of the witnesses heard Perez cursing and yelling for Brian to come

outside and for the witnesses to put Brian outside so that Perez could have access to Brian.

       Perez was not merely making a request for Brian to come outside but was yelling for Brian

at the door. Perez was actively seeking him as he forcefully pushed the door open while inserting

whatever part of his body he could inside the house in efforts to get to Brian. Perez did not relent

in forcing the door open until he heard the police sirens. It was then that the witnesses were able

to finally close the door, and Perez stopped pushing. The force Perez used to push open the door

while the witnesses attempted to close it damaged the door frame. Perez also used the knife to stab

the metal door, damaging it as well. Therefore, the evidence demonstrated that during the struggle

at the door, while Perez was inside the house cursing and yelling that he wanted to get to Brian,

Perez intentionally or knowingly threatened Brian with imminent bodily injury while displaying a

deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 30.02(a)(3), (d); see also

Garcia, 367 S.W.3d at 689 (defining “imminent” as “ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near.”).

       Therefore, we conclude a reasonable factfinder could have determined the evidence was

sufficient to prove beyond a reasonable doubt that Perez committed burglary of a habitation with

attempt to commit a felony, aggravated assault with a deadly weapon. See Witcher, 638 S.W.3d at

709–10; see also TEX. PENAL CODE ANN. § § 30.02(a)(3), (d).

       We overrule Perez’s first issue.

                        EXTRANEOUS OFFENSE OR BAD ACTS EVIDENCE

       In his second issue, Perez complains about the trial court’s admission of testimony from

former Detective Garza regarding the prior incident between Perez and Brian outside a

convenience store and the admission of the surveillance video of the incident. Perez asserts the




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extraneous offense evidence should have been excluded under rules 403 and 404(b) of the Texas

Rules of Evidence. See TEX. R. EVID. 403, 404(b).

       A.      Standard of Review and Applicable Law

       “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in determining the action.”

TEX. R. EVID. 401. Rule 404(b), however, provides that evidence of crimes, wrongs, or other acts

“is not admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” TEX. R. EVID. 404(b)(1). “This rule prohibits [the]

admission of evidence to prove a person’s character from which the trier of fact is then to infer

that the person acted in conformity with the character trait on the occasion in question.” Valadez

v. State, 663 S.W.3d 133, 141 (Tex. Crim. App. 2022) (internal quotation marks omitted). But it

“may be admissible for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). “The

exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive.”

De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “Rule 404(b) is a rule of

inclusion rather than exclusion.” Id.

       “Evidence of extraneous misconduct must tend to enhance or diminish the probable

existence of a fact of consequence in the case.” Valadez, 663 S.W.3d at 141 (citations omitted).

“A ‘fact of consequence’ may be either an elemental fact or an evidentiary fact from which an

elemental fact may be inferred.” Henley v. State, 493 S.W.3d 77, 84 (Tex. Crim. App. 2016). Even

“a small nudge toward proving a fact of consequence” satisfies relevancy. Valadez, 663 S.W.3d at

141 (quoting Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018)). Moreover,




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“[e]xtraneous misconduct evidence may be admissible to rebut a defensive theory that negates an

element of the charged offense.” Id. at 141 (citations omitted).

          Nevertheless, even if the evidence is admissible under rule 404(b)(2), “[t]he 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. “Rule 403 favors the admission

of relevant evidence and carries a presumption that relevant evidence will be more probative than

prejudicial.” Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). The “plain language of

[r]ule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence

is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be

prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (citations omitted).

Therefore, when reviewing a rule 403 determination, an appellate court will reverse the trial court’s

ruling “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847

(Tex. Crim. App. 1999) (quoting Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App.

1990)).

          Although this is not an exhaustive list, courts generally balance the following factors when

performing a rule 403 analysis: “(1) how probative the evidence is; (2) the potential of the evidence

to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent

needs to develop the evidence; and (4) the proponent’s need for the evidence.” Colone v. State,

573 S.W.3d 249, 266 (Tex. Crim. App. 2019); see also Inthalangsy v. State, 634 S.W.3d 749, 758

(Tex. Crim. App. 2021). In this context, “probative value” refers to how strongly evidence makes

the existence of a “fact of consequence” “more or less probable” and to how much the proponent

needs the evidence, and “unfair prejudice” refers to how likely the evidence will result in a decision




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made on an “improper basis,” including “an emotional one.” Davis v. State, 329 S.W.3d 798, 806

(Tex. Crim. App. 2010) (quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)).

       B.      Applicable Facts from Rule 403, 404(b) Hearing

       Prior to providing the testimony detailed above, Detective Garza testified at a rule 403,

404(b) hearing. Detective Garza testified that he investigated the incident involving Perez and

Brian at a local convenience store parking lot where Perez exited his SUV with a pistol in his

waistband in clear sight and then pulled it out of his waistband holding it in his hand while

confronting Brian. Detective Garza obtained surveillance video without audio from the store

depicting the incident. The video shows Perez arriving in his SUV and going into the store. While

Perez is waiting to check out, Brian walks into the store. After Brian walks into the store, Brian

and Perez exchange glances briefly and possibly exchange words as Brian walks past the line in

front of the register. Perez then exits the store and gets back in the driver’s seat of his SUV. As

Brian leaves the store and walks in front of Perez’s SUV toward his closely parked car on the

passenger side of Perez’s SUV, Perez gets out of his SUV carrying the pistol in his waistband and

quickly walks toward Brian. As Brian turns toward Perez, a woman exits the SUV to deter Perez.

When the woman steps in front of him, Perez grabs the pistol from his waistband holding it in his

hand and pointing it toward the ground. Perez and Brian exchange words while Perez holds his

pistol. Another man from Perez’s SUV and Alexis from Brian’s car are also seen outside their

vehicles. Brian and Alexis soon get into Brian’s car and drive away. Perez and his passengers do

the same after Brian has left the store’s parking lot.

       After viewing the recording, hearing Detective Garza’s testimony, and considering the

parties’ arguments and applicable law, the trial court ruled that Detective Garza’s testimony and




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the surveillance video were admissible under Texas Rules of Evidence Rules 403 and 404(b). See

TEX. R. EVID. 403, 404(b).

       C.      Analysis

       Evidence concerning Perez and Brian’s adversarial relationship, especially a prior

altercation between them, is relevant as it provides context for the factfinder about why Perez

would enter Brian’s house while threatening him. See TEX. R. EVID. 401. Thus, extraneous offense

evidence of Perez previously engaging in deadly conduct by placing a pistol in his waistband and

then pulling it out and holding it while confronting Brian in a public parking lot at a convenience

store lends support to prove Perez’s motive and intent to force his way inside Brian’s house while

threatening him. See TEX. R. EVID. 404(b). Additionally, Perez suggested that Brian was the initial

aggressor in this case, and extraneous offense evidence regarding the prior altercation is admissible

to refute Perez’s defensive theory that he lacked intent in committing burglary of a habitation with

attempt to commit aggravated assault with a deadly weapon. See Valadez, 663 S.W.3d at 141. We

conclude the trial court did not abuse its discretion in determining Detective Garza’s testimony

and the surveillance video satisfied rule 404(b) as admissible extraneous offense evidence. See

TEX. R. EVID. 404(b).

       To determine whether the probative value of the evidence is substantially outweighed by

its danger of unfair prejudice, we turn our review to the trial court’s ruling against the relevant

criteria by which a rule 403 decision is made. See Colone, 573 S.W.3d at 266. The first factor

requires us to determine the probative value of the evidence. The probative value of the prior

altercation tends to make it more probable than not that Perez, upon forcing his way into the house,

then intentionally or knowingly threatened to assault Brian with a deadly weapon because he had

previously approached Brian with a gun in hand. See id. at 256. This factor weighs heavily in favor




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of admission. As to the second factor, the evidence might have had the potential to impress the

jury by leading the jury to believe Perez has a propensity for violence. However, there is no reason

to think it would irrationally and indelibly impress the jury given the detailed evidence explaining

how Perez forced himself inside the house while threatening to assault Brian as he held a knife and

used it to stab at the door when the other witnesses managed to hold the door closed enough to

prevent Perez from coming all the way inside the house. See Inthalangsy, 634 S.W.3d at 758–59.

       As to the third factor—the State’s need to develop the evidence—the State did not spend a

great deal of time on the testimony. Only two of the seventeen witnesses provided testimony on

the extraneous offense, and the testimony consisted of 78 out of 724 pages of transcribed testimony

of the trial transcript. See Inthalangsy, 634 S.W.3d 759. Additionally, in the State’s closing

argument, the prosecutor dedicated approximately ten percent of its closing argument to the

incident, discussing it over a total of four transcribed pages out of a thirty-nine-page closing

argument. See id. Moreover, the trial court gave a limiting instruction prior to Detective Garza’s

testimony, and the jury charge included a limiting instruction for considering the extraneous

offense evidence as well. This factor weighs in favor of admission.

       Regarding the fourth factor in a rule 403 balancing test, the State’s need for the evidence

was moderate. On one hand, the State had evidence from multiple witnesses involved in the

burglary of a habitation with attempt to commit aggravated assault that included Perez’s threat to

assault Brian with a deadly weapon. On the other hand, Detective Garza’s testimony and the

surveillance video explicitly provided evidence of the context of Perez’s acrimonious relationship

with Brian and Perez’s continued pursuit to confront and harm Brian. Without this evidence

strengthening the State’s case, and the fact that Brian was deceased at the time of trial, the State

would have had to solely rely on the testimony of the witnesses regarding Perez’s entering the




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house while threatening to assault Brian with a deadly weapon without any context about the

ongoing animosity between them. See id. This factor weighs in favor of admission.

       Finally, there is little risk of jury confusion as to whether Perez was on trial for burglary of

a habitation with attempt to commit aggravated assault involving his threats to Brian with a knife,

as opposed to the extraneous offense that involved a pistol in a parking lot of a convenience store.

       Applying the balancing factors to the facts of this case, we cannot conclude the trial court

erred by finding the probative value of the evidence of the deadly conduct extraneous offense was

substantially outweighed by the risk of unfair prejudice. See Colone v. State, 573 S.W.3d at 266.

       Because the trial court’s admission of the deadly conduct extraneous offense under rule

404(b) is within the zone of reasonable disagreement and because we cannot conclude the trial

court erred by finding the probative value of the evidence was substantially outweighed by the risk

of unfair prejudice, we cannot conclude the trial court abused its discretion by admitting evidence

of the extraneous offense.

       We overrule Perez’s second issue.

                                  ALLEGED IMPACT TESTIMONY

       In his last issue, Perez argues the trial court erred by admitting testimony from several

witnesses regarding how they felt during the incident. Particularly, Perez complains in his initial

appellate brief that this alleged impact testimony was irrelevant and prejudicial, triggering a rule

403 analysis like that in his second appellate issue. Nonetheless, following the State’s responsive

brief, Perez acknowledges that he failed to make proper objections at trial to this evidence; and

thus, has waived a rule 403 review. See TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 403; see also

Keller v. State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet. ref’d) (denying appellate




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review because defendant failed to make proper rule 403 objection). We agree and therefore limit

our review to whether the trial court admitted alleged irrelevant evidence.

        A. Standard of Review and Applicable Law

        As stated above, we review evidentiary rulings under an abuse-of-discretion standard.

Jenkins v. State, 493 S.W.3d 583, 609 (Tex. Crim. App. 2016). A trial court does not abuse its

discretion if the decision to admit evidence is within the “zone of reasonable disagreement.” De

La Paz, 279 S.W.3d at 343 (citing Montgomery, 810 S.W.2d at 391). We will not disturb the trial

court’s ruling if it is correct under any applicable theory of law. See id.

        Also, as provided above, “[e]vidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” TEX. R. EVID. 401. “Evidence does not need to prove or disprove a

particular fact by itself to be relevant; it is sufficient if the evidence provides a small nudge toward

proving or disproving a fact of consequence.” Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim.

App. 2018) (citations omitted). “A ‘fact of consequence’ includes either an elemental fact or an

evidentiary fact from which an elemental fact can be inferred.” Henley, 493 S.W.3d at 84.

        B. Challenged Testimony

        Perez objected to the following testimony on various grounds, all of which objections were

overruled by the trial court,

            •   Maria testified that she felt, “Fear[,] [b]ecause I had two persons in the house that
                were pregnant, my children. And we were—we felt alone. Because I had never
                experienced that. Something that changed our lives completely in the family.”

            •   Deyanira explained the event by stating, “It was—it was very—it impacted me
                quite a bit when I saw the face of the young man with such hate that he wanted to
                harm us. And—and I will never forget that face in my dreams and in my
                nightmares.”
            •   Indira claimed that throughout the struggle she “feared for [her] life, . . . feared for
                every—my sisters’ lives.” Indira then expounded stating, “I feel—more than


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               anything. I feel scared. I feared that I had to—just being 16—I was 17 at the time,
               being 17 and having to protect everybody in my house, I didn’t want anybody to
               get hurt. I was young, I mean, I’m still young, right, but I was like—being just 17
               and going through something like that and having to protect my grandma, having
               to protect my sisters that had another life in them because you never know who
               he—what I saw, that he wanted to get towards Brian[.]”

           •   Janale testified that she felt useless because she was pregnant and that her
               pregnancy was “a really high-risk pregnancy[,]” adding she feared for the life of
               her unborn child and that she “didn’t have the strength to push [Perez] back[.]”

       C. Analysis

       Perez argues the State elicited this alleged irrelevant evidence from the witnesses only to

gain the jury’s sympathy. However, during trial and on appeal, Perez contends that he did not

attempt to enter the house, Brian was the initial aggressor during the incident, and the witnesses’

recollections of the incident were not credible because their testimony contained inconsistencies

from prior statements made to police and inconsistencies among each other as to what transpired.

Additionally, Perez argues that even if we conclude part of his body was inside the house, there is

no evidence indicating he intended to assault Brian.

       Whether Perez possessed the requisite intent to assault Brian with a deadly weapon once

he entered the house is an element the State had to prove for the jury to convict Perez of burglary

of a habitation with attempt to commit aggravated assault with a deadly weapon. See TEX. PENAL

CODE ANN. §§ 22.02(a)(2); 30.02(a)(3), (d). First, because Brian was deceased at the time of trial,

the jury was unable to hear Brian’s account of the incident. And, in this case, it is undisputed that

Perez did not cause Brian bodily injury; rather, the State alleged Perez attempted to commit

aggravated assault—the alleged felony in this burglary of a habitation case—by threatening Brian

with imminent bodily injury while exhibiting a deadly weapon. See id. §§ 22.01(a)(2); 22.02(a)(2).

       The witnesses’ testimony related to the intensity and overall impact of the events as a result

of Perez’s physical strength and force in his unrelenting attempt to open the door, while demanding



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access to Brian and using a knife to stab the outside of the door. The evidence was relevant in

determining whether Perez’s behavior constituted a threat of imminent bodily injury to Brian. The

witnesses’ complete perception of the incident, including their testimony regarding their fear,

aided the jury in making its determination of a fact of consequence. Gonzalez, 544 S.W.3d at 370;

Henley, 493 S.W.3d at 84.

       Therefore, we overrule Perez’s third issue.

                                          CONCLUSION

       Having overruled all of Perez’s appellate issues, we affirm the trial court’s final judgment

of conviction.

                                                 Irene Rios, Justice

DO NOT PUBLISH




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