Billy O Carter et al v. JEB Lease Service Inc., eta l.

  IN THE

TENTH COURT OF APPEALS

No. 10-02-034-CV

     BILLY O. CARTER

     AND MIKE STERNBERG,

                                                                              Appellants

     v.

     JEB LEASE SERVICE, INC.,

     MIDWAY OIL FIELD CONSTRUCTORS, INC.

     AND C.P. BAILEY CONSTRUCTION CO., INC.,

     D/B/A CENTEX SUPPLY,

                                                                              Appellees

From the 12th District Court

Madison County, Texas

Trial Court # 96-8156-012-06

                                                                                                               Â

MEMORANDUM OPINION

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      In 1995, M.B. Properties, Inc. failed to pay debts owed to JEB Lease Service, Inc., Midway Oil Field Constructors, Inc., and C.P. Bailey Construction Co., Inc., d/b/a Centex Supply. Centex asked Carter for help with its unpaid invoice. JEB sent its unpaid invoice to Carter. Nothing was paid. In the meantime, M.B. took $50,000 from Tony Martin to construct a commercial saltwater disposal well. The money was spent, but no well was developed. Martin threatened to sue Carter and Sternberg individually for fraud. They settled with Martin using all the assets of M.B. and some of their personal assets. There was nothing left with which to pay the claims of the appellees.

      The appellees sued M.B. and Carter and Sternberg, individually, for the unpaid debts for services rendered and goods provided to M.B. They sued Carter and Sternberg individually under the theory of alter ego. After a bench trial, the trial court found M.B. was the alter ego of Carter and Sternberg. The court also found Carter and Sternberg liable to the appellees for the unpaid invoices. Carter and Sternberg appeal.

Alter Ego

      Disregarding the “legal fiction of corporate entity” is an exception to the general rule which forbids disregarding corporate existence. Lucas v. Texas Industries, Inc., 696 S.W.2d 372, 374 (Tex. 1984). Alter ego is but one basis for disregarding the corporate fiction. Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986). And the burden is on the plaintiff to prove alter ego. Lucas, 696 S.W.2d at 375.

Law-Disregarding the Corporate Entity

      Under the alter ego theory, courts disregard the corporate entity when there exists such unity between corporation and individual that the corporation ceases to be separate and when holding only the corporation liable would promote injustice. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex. 1990); Castleberry, 721 S.W.2d at 272. An alter ego relationship may be shown from the total dealings of the corporation and the individual. Id. This showing may include evidence of "the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes." Id. (quoting Castleberry, 721 S.W.2d at 272).

Law-Legal Sufficiency

      Carter and Sternberg only challenge the legal sufficiency of the court’s implied findings that M.B. was the alter ego of Carter and Sternberg. In conducting a legal sufficiency or no-evidence review, we must "view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary." Excel Corp. v Apodaca, 81 S.W.3d 817, 820 (Tex. 2002); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We will uphold the finding if more than a scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Burleson State Bank v. Plunkett, 27 S.W.3d 605, 612 (Tex. App.—Waco 2000, pet. denied).

Evidence

      Carter and Sternberg operated M.B. Properties. All corporate paperwork was kept up to date. In 1995, M.B. incurred debts to the appellees. Those debts went unpaid. During the same time period, M.B. also owed Tony Martin a commercial saltwater disposal well for which Martin had paid M.B. $50,000. Martin threatened M.B., and Carter and Sternberg, individually, with a lawsuit for fraud over the disposal well. According to Carter, Carter and Sternberg put personal money into the corporation and then the corporation paid out that money for a settlement. However, Martin testified they transferred personal assets in the form of cash and M.B.’s interest in four wells for the settlement of Martin’s threatened claims against Carter and Sternberg and against M.B. After the settlement with Martin, there were no more assets in M.B. to pay the debts to the appellees. There was no evidence regarding the allocation of payments or transfer of assets made to settle the various claims against M.B. or individually against Carter and Sternberg.

Application

      Although Carter and Sternberg may have kept themselves apart from M.B. initially, there is some evidence they merged when Carter and Sternberg were threatened by, and settled with, Martin. It does not matter which description of the transfer of money was accurate. Under either version, the bottom line is that there is some evidence in the record that Carter and Sternberg disregarded the separation of the corporate entity by transferring all M.B.’s assets to settle claims that were, in part, against them personally. To then allow Carter and Sternberg to shield themselves from liability to the appellees and hold M.B. only liable would result in an injustice. There is more than a scintilla of evidence that M.B. was the alter ego of Carter and Sternberg.

 

Conclusion

      The trial court did not err in impliedly finding M.B. was the alter ego of Carter and Sternberg. The trial court’s judgment is affirmed.

 

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

(Justice Vance dissenting)

Affirmed

Opinion delivered and filed February 4, 2004

[CV06]

r curiam). “Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court” in its discretion.  Martin, 173 S.W.3d at 466 (quoting Moses, 105 S.W.3d at 627); accord Montgomery at 391 (op. on reh’g).

      Defensive Issue.  First, Newton argues that the extraneous-offense evidence was not admissible to rebut a defensive issue, as the State argued at trial that it was. 

      “Rebuttal of a defensive theory . . . is . . . one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b).”  Moses, 105 S.W.3d at 626 (citing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988), disavowed on other grounds, Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993)); see Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004); Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972) (common law); Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.); e.g., Wheeler, 67 S.W.3d at 886-87 (fabrication).

      A defensive issue can be raised for purposes of Rule 404 otherwise than by evidence admitted by the defense.  “[E]xtraneous offenses are admissible to rebut defensive theories raised by the testimony of a State’s witness during cross-examination.”  Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994); accord Crank, 761 S.W.2d at 341; see Powell v. State, 63 S.W.3d 435, 437-39 (Tex. Crim. App. 2001); Walker v. State, 201 S.W.3d 841, 852 (Tex. App.—Waco 2006, pet. ref’d).  “The mere fact that the state’s witness was crossexamined will not, in and of itself, authorize the state to introduce evidence of extraneous offenses.  Rather, it is the responses elicited from a state’s witness on crossexamination which may allow the state to subsequently introduce extraneous offense evidence.”  Crank at 341 (citing Albrecht, 486 S.W.2d at 101-102); accord DeLeon v. State, 77 S.W.3d 300, 314 (Tex. App.—Austin 2001, pet. ref’d).  The defense may also raise a defensive theory in its examination of the venire panel.  See Person v. State, No. B14-91-00503-CR, 1993 Tex. App. LEXIS 1050, at *15 (Tex. App.—Houston [14th Dist.] Apr. 8, 1993, no pet.) (not designated for publication). 

      The State argues that Newton raised the defensive issue that Doe fabricated her allegations, either out of her own ill will toward him or at her mother’s prompting, in his examination of the venire panel, in cross-examination of the State’s witnesses, and in argument.^[4]  The State points, and pointed in the trial court, to Newton’s cross-examination of Doe.^[5]  Much of that concerns general impeachment of Doe by prior inconsistent statements; some of the cross-examination, however, does tend to raise the issue of fabrication.  For example, Newton brought out that Doe hated and had no respect for Newton, disliked that he was “bossy,” resented that he came between her and her mother, felt better when she moved away from him, and first alleged that he abused her after she learned that her mother might reconcile with him.  (State Br. at 38 (citing 3 R.R. at 173).)

      The State also points to Newton’s voir-dire examination, in which he asked:

Do you think that someone is—when I say a ‘child’ in their teens—do you think someone in their teens is able to make up a story that’s not true?  Does everybody agree with that?

      Do you think that—we talked about—[the State] talked about the reason why people don’t make outcries is because they’re scared to say something about it.  I forgot who said something, but they basically said that a child can be manipulated not to tell what has happened by an adult.

      The adult has told them either by force or, you know, ‘This will happen to you if you say this.’  But do you think the converse of that, do you think that basically an adult can manipulate a child to say something?  When I say ‘child’—again, teenagers.  Does everybody agree with that?

[sic] (2 R.R. at 103 (bracketed alteration added).)^[6]   

      The trial court was in a position to observe Newton’s voir-dire examination and cross-examination, and the responses of the panelists and witnesses, and the effect of those examinations and responses on the jurors.  The trial court did not abuse its discretion in finding that Newton raised the issue of Doe’s fabricating her testimony.  

      Similarity.  Next, Newton argues that the extraneous offenses were not sufficiently similar to the offenses of which he was convicted. 

      “To be probative, the extraneous offense evidence admitted to rebut a defensive theory must be similar to the charged offense.”  Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see Wheeler, 67 S.W.3d at 888. 

      Newton argues that “this Court should hold that the State must prove the extraneous offense is similar enough to the charged offense to ‘earmark [it] as the handiwork of the accused’ . . . .”  (Br. at 30 (quoting Owens v. State, 827 S.W.2d 911, 914-15 (Tex. Crim. App. 1992)) (bracketed alteration by Newton).)  Owens is distinguishable.  Owens concerned evidence of “system,” that is, “‘modus operandi’ or ‘methodology,’” or “a defendant’s distinctive and idiosyncratic manner of committing criminal acts,” to prove the defendant’s identity.  Owens, 827 S.W.2d at 915; see id. at 916. Under Rule 404(b), “[w]hen the State seeks to admit extraneous offense evidence under a theory of ‘system’ or modus operandi, ‘there must be a showing that the extraneous offense which was committed by the defendant was “so nearly identical in method [to the charged offense] as to earmark them as the handiwork of the accused.”’”  Id. at 915 (quoting Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) (quoting E. Cleary, McCormick’s Handbook of the Law of Evidence 449 (2d ed. 1972))); see Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985); Dickey v. State, 646 S.W.2d 232, 235 (Tex. Crim. App. 1983).  To prove system, “the prior bad act ‘must be so distinctively similar’ to the present offense ‘as to constitute a “signature” act.’”  Qualley, 206 S.W.3d at 638 (quoting Johnston, 145 S.W.3d at 221 n.16 (internal footnote omitted)); see Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993). 

      But whether extraneous offenses are sufficiently similar to charged offenses to be admissible is a matter of degree.   For example, “the degree of similarity required is not so great where intent is the material issue” that the extraneous offenses rebut “as when identity is the material issue, and extraneous offenses are offered to prove modus operandi.”  Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987); cf. Owens, 827 S.W.2d at 914-15.  The degree of similarity required to rebut a defensive issue, likewise, is not great.  See Blackwell, 193 S.W.3d at 13; Dennis v. State, 178 S.W.3d 172, 178-79 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).  For example, in Mendiola v. Texas, the trial court admitted extraneous offenses in part to rebut Mendiola’s defense that Mendiola was impotent and thus incapable of committing the charged offense.  Mendiola v. State, 995 S.W.2d 175, 178-81 (Tex. App.—San Antonio 1999), rev’d on other grounds, 21 S.W.3d 282 (Tex. Crim. App. 2000).  There, in order to rebut that defense, the extraneous offenses need only tend to prove that Mendiola was not impotent.  The probative value of the extraneous offenses did not flow from their close factual similarity to the charged offense, but only from their force to prove that the defendant was not impotent.  Likewise, the probative value of Newton’s extraneous offenses to rebut circumstantially Newton’s fabrication issue does not flow from a close similarity to the charged offenses.

      The State pointed primarily to the evidence that Newton sexually assaulted both stepdaughters when they were about the same age and that the abuse continued as long as Newton was in the home.  If the jury believed that Newton committed those extraneous offenses, that would make it more probable that Doe was not fabricating her allegations against Newton.  The trial court did not abuse its discretion in finding that the extraneous offenses were not so dissimilar from the charged offenses as to be without probative value. 

      Remoteness.  Lastly, Newton argues that the extraneous offenses were “too remote to have any probative value.” (Br. at 34.) 

      However, “Rule 404 imposes no time limitations . . . .”  Hernandez v. State, 203 S.W.3d 477, 480 (Tex. App.—Waco 2006, no pet.).  Rather, the Rules of Evidence “favor the admission of all logically relevant evidence for the jury’s consideration.”  Montgomery, 810 S.W.2d at 376 (op. on orig. submission); accord Hernandez at 480; Prince v. State, 192 S.W.3d 49, 55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

      The cases cited by Newton are distinguishable.  With the exception of one case, all of the cases cited by Newton were decided under the common law of evidence that existed prior to the adoption of the Rules of Evidence, which common law “tended to favor the exclusion of evidence.”  Montgomery, 810 S.W.2d at 375 (op. on orig. submission); see Prince, 192 S.W.3d at 55; e.g. Messenger v. State, 638 S.W.2d 883 (Tex. Crim. App. [Panel Op.] 1982).  The other case, assuming that it was correctly decided, concerned extraneous-offense evidence admitted to prove system, which, for the reasons stated above, requires a high degree of similarity; and was decided under Rule of Evidence 403, not Rule 404.  See Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi 2002, pet. ref’d).

      The trial court did not abuse its discretion in finding that the remoteness of the extraneous offenses did not render them without probative value.

      The trial court did not abuse its discretion in overruling Newton’s objection under Rule 404.^[7]  We overrule Newton’s second issue.

      Rule 403.  In Newton’s third issue, he argues under Rule of Evidence 403.^[8]  See Tex. R. Evid. 403.  Under that rule, “Although relevant, evidence may be excluded 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.”  Id.  We understand Newton to argue unfair prejudice. “‘[U]nfair prejudice’ refers to ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’”  Erazo v. State, 144 S.W.3d 487, 501-502 (Tex. Crim. App. 2004) (quoting Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)); accord Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993).

      “[A] trial court is entitled to broad discretion in ruling on a Rule 403 objection.”  State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.  2005) (citing Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003)); accord Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006); Martin, 173 S.W.3d at 467; Montgomery, 810 S.W.2d at 391-93 (op. on reh’g).  “. . . Rule 403’s ‘use of the word “may” reflects the draftsman’s intent “that the trial judge be given a very substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair prejudice’ on the other, and that he should not be reversed simply because an appellate court believes that it would have decided the matter otherwise.”’”  Powell, 189 S.W.3d at 288 (quoting Manning at 926).

      [A] Rule 403 analysis should include, but is not limited to, the following factors:

      (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.

Shuffield, 189 S.W.3d at 787 (quoting Montgomery, 810 S.W.2d at 389-90 (op. on reh’g)) (alteration added); see Powell, 189 S.W.3d at 287.

      As to the second factor, “[b]oth sexually related misconduct and misconduct involving children are inherently inflammatory.”  Montgomery, 810 S.W.2d at 397 (op. on reh’g); accord Bishop, 869 S.W.2d at 346; Whitmire v. State, 183 S.W.3d 522, 529 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Rickerson v. State, 138 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d).  In evaluating the prejudicial effect of evidence, we take into account whether the trial court gave an instruction limiting the jury’s consideration of the evidence to its proper purpose.  Blackwell, 193 S.W.3d at 16-17; Dennis, 178 S.W.3d at 181.  We also consider whether the parties argued that the jury could only consider the evidence for its proper purpose.  Blackwell at 17.

      As to the third factor, “[t]he potential for unfair prejudice occurs if the State spends an undue amount of time presenting the extraneous offense to the jury.”  Dennis, 178 S.W.3d at 181 n.2. 

      As to the fourth factor, “[t]here are three questions that the reviewing court should answer . . . : ‘[1] Does the proponent have other available evidence to establish the fact of consequence that the [evidence] is relevant to show?  [2] If so, how strong is that other evidence?  And [3] is the fact of consequence related to an issue that is in dispute?’”  Erazo, 144 S.W.3d at 496 (quoting Montgomery, 810 S.W.2d at 390 (op. on reh’g)) (bracketed numerals added); accord Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. App. 2000).

      As to the extraneous-offense evidence’s probative value, for the reasons stated above, although the evidence did not tend to disprove fabrication directly, it tended circumstantially to prove that Doe did not fabricate her allegations.  As to the evidence’s prejudicial effect, the trial court carefully instructed the jury on the circumstances under which and the purpose for which the jury could consider the evidence, in limiting instructions both immediately after the witness testified, and in the trial court’s charge.  Moreover, both parties argued to the jury that it could not consider the evidence apart from those circumstances and for that purpose.  As to the time that the State needed to develop the evidence, Newton argues that it was extensive.  Newton points to bench conferences on the admissibility of the evidence, to L. D.’s testimony generally, to the testimony of a witness apparently called to bolster L. D.’s credibility, to Newton’s general cross-examination of L. D., and to Newton’s direct examination of one of his witnesses.  We do not attribute such matters to the State, as proponent of the evidence, in developing the extraneous-offense evidence.  The State’s presentation of the testimony of which Newton complains was brief.  As to the State’s need for the extraneous-offense evidence, Newton does not point to direct evidence tending to disprove Newton’s fabrication issue, and the State points to the lack of evidence corroborating Doe’s testimony.

      On those factors, the trial court did not abuse its discretion in finding that the prejudicial effect of the extraneous-offense evidence did not substantially outweigh the evidence’s probative value.  The trial court did not err in overruling Newton’s Rule 403 objection.^[9]  We overrule Newton’s third issue.

ouHoust

      CONCLUSION. Having overruled Newton’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurs in the judgment with a note)*

Affirmed

Opinion delivered and filed March 28, 2007

Do not publish

[CRPM]

 

          * “(I concur in affirming the trial court’s judgment.  I would, however, address Newton’s argument that Bass v. State, 2007 WL 703761, at *2-6 (Tex. App.—Houston [14th  Dist.] March 8, 2007, no pet. h .), prohibits the use of extraneous-offense evidence to rebut a claim of fabrication.)”

---

                [1] The indictment alleged that Newton committed aggravated sexual assault by “caus[ing] the penetration of the female sexual organ of Jane Doe . . . by inserting his finger.”  (I C.R. at 1.)  Newton does not contend that indecency with a child constitutes a lesser included offense of aggravated sexual assault of a child under those facts.  Cf. Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); Murray v. State, 24 S.W.3d 881, 889 (Tex. App.—Waco 2000, pet. ref’d).

                [2] We would, moreover, affirm on another ground.  “[W]e will uphold a trial court’s ruling on any theory of law applicable to the case . . . .”  State v. Ross, 32 S.W.3d 853, 854 (Tex. Crim. App. 2000); accord Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); Holden v. State, 205 S.W.3d 587, 589 (Tex. App.—Waco 2006, no pet.); see Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002).  The testimony would be admissible under the hearsay exception for statements for purposes of medical diagnosis or treatment.  See Tex. R. Evid. 803(4); Molina v. State, 971 S.W.2d 676, 683-84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); Gohring v. State, 967 S.W.2d 459, 461-63 (Tex. App.—Beaumont 1998, no pet.); Macias v. State, 776 S.W.2d 255, 258-59 (Tex. App.—San Antonio 1989, pet. ref’d); In re M.M.L., No. 07-05-0240-CV, 2006 Tex. App. LEXIS 6783, at *9-*10 (Tex. App.—Amarillo July 31, 2006, pet. filed) (juvenile adjudication); Syndex Corp. v. Dean, 820 S.W.2d 869, 873-74 (Tex. App.—Austin 1991, writ denied). 

                [3] Further, were we to hold that the trial court erred, we would, after examining the record as a whole, find that we have a fair assurance that the error did not influence the jury or had but a slight effect, and thus hold that the error was harmless.  See Tex. R. App. P. 44.2(b); Renteria v. State, 206 S.W.3d 689, 706 n.14 (Tex. Crim. App. 2006); McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005); Shuffield, 189 S.W.3d at 791; Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Hanson, 180 S.W.3d at 730.  Doe, eighteen years old at the time of trial, testified clearly to Newton’s offenses.  Newton concedes that Doe’s testimony was “compelling” and his attempted impeachment of her “inefficacious,” and that the evidence of his guilt was “powerful.”  (Br. at 40.)

                [4] Newton argues that the State “waived” its argument that the evidence of which he complains served to rebut the defensive theory that he “was the [v]ictim of a [f]rame-up.”  (Br. at 21; see id. at 21-22.)  Newton does not argue that the State waived the State’s fabrication argument.  We do not perceive the two arguments to be distinct.

            [5] Newton argues that his cross-examination was “confined to issues brought up on direct examination . . . by the State.”  (Br. at 24.)  If that contention is correct, Newton cites no authority for the proposition that such cross-examination could not raise a defensive issue.

                [6] Newton advanced the issue more directly in his argument.  There, Newton suggested that Doe fabricated the allegation against Newton in order to prevent her mother’s reconciliation with Newton, or did so at the prompting of her mother, since Doe made her allegation immediately before her mother filed for divorce from Newton.  (See 6 R.R. at 104-110.)

                [7] Further, were we to hold that the trial court erred, we would hold, after examining the record as a whole, that we have a fair assurance that the error did not influence the jury or had but a slight effect, and thus that the error was harmless. See Tex. R. App. P. 44.2(b); Renteria, 206 S.W.3d at 706 n.14; McDonald, 179 S.W.3d at 578; Shuffield, 189 S.W.3d at 791; Haley, 173 S.W.3d at 518; Johnston, 145 S.W.3d at 224-25; Hanson, 180 S.W.3d at 730.  Doe testified clearly to Newton’s offenses.  Newton concedes that Doe’s testimony was “compelling” and his attempted impeachment of her “inefficacious,” and that the evidence of his guilt was “powerful.”  (Br. at 40.)

            [8] We assume without deciding that Newton preserved his Rule 403 objection: “We’re going to throw in more prejudicial than probative.”  (4 R.R. at 68); see Tex. R. App. P. 33.1(a).  Nonetheless, the trial court stated, “the 403, I’m considering that at the same time” as the Rule 404 objection.  (4 R.R. at 90.)

                [9] Further, were we to hold that the trial court erred, we would hold, after examining the record as a whole, that we have a fair assurance that the error did not influence the jury or had but a slight effect, and thus that the error was harmless.  See Tex. R. App. P. 44.2(b); Renteria, 206 S.W.3d at 706 n.14; Shuffield, 189 S.W.3d at 791; McDonald, 179 S.W.3d at 578; Prible, 175 S.W.3d at 737; Haley, 173 S.W.3d at 518; Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002); Hanson, 180 S.W.3d at 730; Williams v. State, 27 S.W.3d 599, 603 (Tex. App.—Waco 2000, pet. ref’d); see Horton v. State, 986 S.W.2d 297, 303-304 (Tex. App.—Waco 1999, no pet.).  Doe testified clearly to Newton’s offenses.  Newton concedes that Doe’s testimony was “compelling” and his attempted impeachment of her “inefficacious,” and that the evidence of his guilt was “powerful.”  (Br. at 40.)  The State argued that the jury could consider L. D.’s testimony for its bearing on Doe’s credibility, but did not otherwise emphasize the testimony, and did not argue that the jury should find Newton guilty directly because of Newton’s offenses against L. D.  The trial court did not admit evidence of other extraneous offenses, and did give careful limiting instructions.