Lofton v. State

Full title: ERIC BRIAN LOFTON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 9, 2011

No. 05-10-01265-CR (Tex. App. Dec. 9, 2011)

Opinion

No. 05-10-01265-CR

Opinion Filed December 9, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F04-15033-R.

Before Justices MORRIS, O'NEILL, and FILLMORE. Opinion By Justice FILLMORE.

OPINION

ROBERT M. FILLMORE, Justice.

The jury convicted Eric Brian Lofton of indecency with a child and assessed punishment of six years' imprisonment.¹ In four issues, Lofton asserts the trial court erred by excluding evidence that the complainant made an outcry that his brother molested him, by admitting into evidence a suicide note written by the complainant, and by admitting evidence during the guilt-innocence phase of the trial of extraneous bad acts committed by Lofton. We affirm the trial court's judgment.

1 Lofton was sentenced on February 10, 2006 and filed a timely notice of appeal. Between March 2006 and January 2008, this Court abated the appeal three times and ordered the trial court to determine the status of the appeal. Lofton's original appellate counsel failed to timely file a brief. On January 7, 2008, this Court submitted Lofton's appeal without briefs and, on March 5, 2008, affirmed Lofton's conviction. See Lofton v. State, No. 05-06-00506-CR, 2008 WL 588808, at *1 (Tex. App.-Dallas Mar. 5, 2008, no pet.) (per curiam) (mem. op., not designated for publication). On August 25, 2010, the Texas Court of Criminal Appeals determined Lofton's original appellate counsel was ineffective and granted Lofton an out-of-time appeal. Ex parte Lofton, No. AP-76393, 2010 WL 3431693, at *1 (Tex. Crim. App. 2010) (per curiam) (not designated for publication).

Background ²

2 Lofton has not challenged the sufficiency of the evidence to support the conviction. Accordingly, we recite only those facts necessary to address Lofton's issues on appeal.

Lofton was indicted on one charge of aggravated sexual assault of a child and two charges of indecency with a child. The complainant, M.E., testified that, when he was twelve years old, he had a close relationship with Lofton. According to M.E., Lofton touched M.E.'s penis with Lofton's hand and mouth on multiple occasions. M.E. eventually told his thirty-year-old friend, Christopher Forbins, about some of Lofton's conduct. Forbins, a convicted murderer, testified he confronted Lofton about the allegations and Lofton said he and M.E. were just "fooling around" and he thought M.E. was "down with it." M.E. confirmed Forbins asked Lofton about the M.E.'s allegation. M.E. testified that, during the conversation with Forbins, Lofton admitted he "did it" and stated he and M.E. had a "strong relationship." According to Forbins, he and Lofton had a "falling out" about M.E. After M.E's outcry against Lofton, M.E.'s stepfather and R.E., one of M.E.'s brothers, confronted Lofton about the allegations. M.E.'s stepfather testified he asked if the allegations were true, and Lofton said, "Yes." R.E. testified his stepfather asked Lofton "if he had done it, and he told us he did." Detective Debbie Rule with the Balch Springs Police Department testified she interviewed Lofton about the allegations. During the interview, Lofton denied the allegations, Shortly after the interview, Lofton called her and said he recalled one night when M.E. kept "scooting real close" to Lofton on the couch at M.E.'s house. Lofton said he could have accidently touched M.E. with his hand. When Lofton woke up later that night, he realized M.E. was naked, but did not know why M.E. was not wearing any clothes. Lofton testified and denied sexually abusing M.E. According to Lofton, he had a disagreement with Forbins in early 2004. Forbins wanted Lofton to sell marijuana for Forbins, and Lofton refused to do so. Lofton testified Forbins "took offense" and "got a little loud." M.E. heard the conversation. Shortly after this conversation, Lofton heard "the rumors" that he had sexually abused M.E. Lofton denied admitting to Forbins or to M.E.'s stepfather that he had abused M.E. Lofton also denied calling Detective Rule. The jury acquitted Lofton of the aggravated sexual assault of a child charge and one of the indecency with a child charges. The jury convicted Lofton of the second indecency with a child charge and assessed punishment at six years' imprisonment.

Standard of Review

In four issues, Lofton complains about evidentiary rulings by the trial court. We review a trial court rulings on the admissibility of evidence under an abuse of discretion standard. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We must affirm the trial court's ruling so long as it lies within the zone of reasonable disagreement. Billodeau, 277 S.W.3d at 39. In other words, we must uphold the trial court's ruling if it "was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made." Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006) (quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). As a prerequisite to presenting a complaint for appellate review, the record must show the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1(a)(1)(A). It is not enough for the proponent of the evidence to tell the trial court that evidence is admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). The proponent of the evidence must also tell the trial court why the evidence is admissible. Id. The party complaining on appeal about the trial court's exclusion of evidence "must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." Id. (quoting Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002)). The issue is whether the complaining party brought to the trial court's attention the very complaint the party is now making on appeal. Id. (quoting Martinez, 91 S.W.3d at 336). However, to preserve an issue concerning the admission of evidence, a party is not required to "spout `magic words' or recite a specific statute." Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). Rather, all the party is required to do to preserve a complaint for appeal, is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Id. (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). In reviewing the trial court's decision, we must consider the context in which the complaint was made and the parties' understanding of the complaint at the time. Id.

Exclusion of Evidence of Other Allegation

In his first issue, Lofton argues the trial court erred by not allowing him to cross-examine M.E., M.E.'s mother, and Dana Tittle, M.E.'s first therapist, about M.E.'s allegation that one of his brothers, L.E., fondled him. Lofton specifically asserts the evidence was admissible under rule of evidence 613(b) and the Confrontation Clause "to demonstrate M.E.'s motive in accusing Lofton with sexual indecency."³ In his second issue, Lofton contends the evidence was admissible to prove an alternative perpetrator.

Relevant Facts

Prior to trial, the State requested, pursuant to rule of evidence 608(b), that the trial court exclude any evidence of M.E.'s allegation that L.E. fondled him.⁴ The trial court held a sub rosa hearing at which M.E. testified L.E. and Lofton were good friends and the things that Lofton did to him often happened when Lofton was spending the night with L.E. After his outcry against Lofton, M.E. was having trouble sleeping "because of what happened" and was taking sleep medication. M.E. had nightmares that Lofton came into his house and tried to "do something" to him. He also had nightmares that L.E. "did that." He told his teacher that he thought L.E. fondled him. His outcry to his teacher occurred "about couple months" after he made the allegations against Lofton. According to M.E., he told his teacher only that he thought L.E. fondled him, not that L.E. actually fondled him. He told his teacher because he was not sure whether it was a dream or really happened. A couple of days later, he told his mother it could have been a dream. According to M.E., his mother and father did not tell him that it could have been a dream. M.E. testified he did not think L.E. abused him and that it was a dream. At the end of the hearing, the trial court made a preliminary ruling that Lofton's counsel could not cross-examine M.E. about the allegation against L.E. The trial court indicated, however, that it was going to research the issue further and make a specific ruling after the direct examination of M.E. Lofton's counsel said, "Okay." After the direct examination of M.E., the trial court returned to the issue of whether M.E.'s allegation against L.E. was admissible and ruled that, "unless something changes," the evidence "was not relevant at this time, and in addition to that, any relevancy would be outweighed by any potential prejudicial effect." Lofton's trial counsel stated he would "like to reserve an opportunity to make a more detailed appeal at a later point." The trial court indicated Lofton's counsel could do so and could submit additional case law or briefs on the issue. M.E.'s mother testified before the jury. During cross-examination, Lofton's counsel asked M.E.'s mother when L.E. moved out of the house. M.E.'s mother stated April 2004. Lofton's counsel then asked if L.E. left on his own. The prosecutor requested to approach the bench, and the trial court held another sub rosa hearing. Lofton's counsel made a bill of proof during which M.E.'s mother testified she received a note from M.E.'s teacher stating M.E. had accused L.E. of sexually assaulting him. M.E.'s mother and stepfather talked to M.E. about the allegation. According to M.E.'s mother, M.E. "said it, then he denied it." M.E. later said he was not sure and thought it was a dream. M.E.'s mother confirmed M.E. was taking medication to help him sleep. She also stated M.E. was "very distraught," was having nightmares about what Lofton had done, and could not go to sleep. According to his mother, M.E. "would get up and lock all the doors all night long." She asked L.E. to move out of the house, and he moved to his grandparents' house. Lofton's counsel asked that he "be allowed to cross-examine this witness regarding that matter before the jury." The trial court denied the request and stated its "ruling [was] the same, regarding that matter, as it was before." The State subsequently called Tittle, M.E.'s therapist from February 2004 through May 2004. Tittle testified before the jury that she treated M.E. for sexual abuse and suicidal ideation. She also attempted to address M.E.'s feelings of shame and embarrassment about the abuse and M.E.'s difficulty sleeping. M.E. indicated he was always scared and was often upset and angry. He felt the abuse was his fault. According to Tittle, M.E. felt confused because he wanted Lofton's friendship, but did not want the abuse. Tittle also testified that children will often delay telling about abuse. M.E. told Tittle that he did not immediately tell anyone about Lofton's abuse because he thought nobody would believe him or that he would get in trouble. M.E. told Tittle about the abuse, including the oral sex. Tittle testified one of the problems with a child being abused at M.E.'s age is the child is entering adolescence and questioning his masculinity. M.E. had behavior problems at school after another student called him "gay." M.E. asked to transfer to a male therapist with whom M.E. might be more comfortable discussing his issues with his masculinity. On cross-examination, Tittle testified children of sexual abuse can either "act out" their symptoms or "internalize," resulting in issues such as depression. M.E. had behavior problems at school, but Tittle was not sure when those problems started. Tittle focused on the sexual abuse and M.E.'s suicidal thoughts. The trial court conducted a sub rosa hearing to allow Lofton to make a bill of proof. During that hearing, Tittle testified M.E.'s mother told Tittle that M.E. had alleged L.E. fondled him. Tittle's April 26, 2004 notes indicate M.E.'s mother said she did "not know who to believe because [M.E.] was mad @ his brother [L.E.] last week." Tittle believed the allegation was genuine because (1) M.E. said he thought he heard L.E. say there was a knock at door, so be quiet and do not say anything, and (2) L.E. and Lofton were friends. Although M.E. recanted the allegation against his brother, Tittle did not believe the recantation because "his demeanor appeared like, I don't give a, I'm just going to say whatever my parents tell me to say." Tittle believed M.E. was "covering" for his brother because he did not want to get his brother in trouble. Tittle stated that "[m]any children have multiple abuses [sic]." Tittle affirmed the "abuse or the indicators that [she] described before the jury" could have been due to a sexual assault by L.E. Lofton's counsel requested "this witness" be allowed to testify about "these matters" before the jury because the evidence was relevant "based on the Confrontation Clause, as well as Texas Rules [sic] of Evidence 103(a)(2)"⁵ and to rebut or explain scientific or medical evidence under rule of evidence 412(b)(2)(A).⁶ The trial court stated its ruling was the same as before. After Lofton's case-in-chief, his counsel indicated the teacher to whom M.E. made the outcry about L.E. was present. Lofton's counsel stated M.E. made the outcry in March 2004, and the teacher reported the allegation to Child Protective Services and to Tittle. Lofton's counsel argued the evidence was admissible under the Confrontation Clause to "show bias and motive for the Complainant witness." He also argued the State had presented evidence M.E. exhibited traits that indicated he had been sexually assaulted and the evidence was necessary to show these traits could have been the result of an assault by L.E., rather than by Lofton. The trial court stated it would "permit [Lofton's counsel] to make a Bill on that at any time" but denied "the request to go into it at this time." Lofton's counsel never made a formal bill of proof through the teacher.⁷

Rule of Evidence 613(b)

Rule of evidence 608(b) provides that a witness's credibility may not be impeached with specific instances of the witness's conduct other than a criminal conviction as provided in rule of evidence 609(a). Tex. R. Evid. 608(b), 609(a). Rule of evidence 613(b) creates an exception to rule 608(b). Billodeau, 277 S.W.3d at 40. A defendant is entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him. Tex. R. Evid. 613(b); Billodeau, 277 S.W.3d at 42-43. Lofton contends M.E. made the allegations against Lofton in retaliation for Lofton refusing to sell drugs for Forbins. Lofton asserts the evidence from the sub rosa hearings shows that M.E. made the allegations against L.E. because he was angry with his brother and, therefore, supports Lofton's claim that M.E. made retaliatory allegations against Lofton. Lofton also argues the evidence was probative to show M.E. had a motive to protect L.E. We first turn to whether Lofton has preserved this argument for appellate review. Following the sub rosa hearings at which M.E. and M.E.'s mother testified about the allegation, Lofton's counsel made no argument as to why the evidence was admissible. Following the sub rosa hearing at which Tittle testified, Lofton argued he should be allowed to cross-examine Tittle about M.E.'s allegation against L.E. based on Lofton's right to confront the witness, because the evidence was relevant, and to rebut scientific evidence offered by the State. The first time Lofton asserted evidence of the allegation was admissible to show M.E.'s bias and motive was at the end of his case-in-chief when he attempted to call M.E.'s teacher to testify about the allegation. Considering the context in which the complaint was made and the parties' understanding of the complaint at the time it was made, we conclude that, as to M.E., M.E.'s mother, and Tittle, Lofton did not preserve his complaint that evidence of M.E.'s allegation against L.E. was admissible to show motive or bias under rule of evidence 613(b). See Ford, 305 S.W.3d at 533. However, even if Lofton had preserved his complaint, the evidence does not support the argument that M.E. made a retaliatory outcry against L.E. In support of his argument, Lofton points to the statement in Tittle's April 26, 2004 notes that M.E.'s mother said she did "not know who to believe because [M.E.] was mad @ his brother [L.E.] last week." The record does not reflect the exact date M.E. told his teacher that he thought he was being abused by L.E., but establishes the allegation was made in March 2004.⁸ There is no evidence in the record that M.E. was angry with L.E. in March 2004. Neither M.E. nor his mother were asked whether M.E. was angry with L.E. before he made the outcry to his teacher. Nothing in the record establishes a nexus between M.E.'s anger with L.E. in April 2004 and M.E.'s outcry against L.E. in March 2004 or that M.E. made a retaliatory allegation of sexual abuse when he was angry with L.E. Accordingly, the evidence is not probative as to whether M.E. made a retaliatory accusation against Lofton after Lofton refused to sell drugs for Forbins. We next turn to Lofton's argument the evidence was admissible to show M.E.'s motive was to protect L.E. Lofton is apparently arguing that M.E.'s recanting of the allegation against L.E. shows M.E. had a motive to protect his brother. However, Lofton has not demonstrated how this alleged motive caused M.E. to make the allegations against Lofton. An appellate brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). We conclude Lofton waived this argument through inadequate briefing. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Because evidence of the allegation against L.E. did not establish M.E.'s bias or motive, it was not admissible under rule of evidence 613(b).

Confrontation Clause

Lofton also asserts that, pursuant to the Confrontation Clause, he was entitled to cross-examine M.E., M.E.'s mother, and Tittle about the allegation against L.E. Lofton argued in the trial court that the denial of his right to cross-examine Tittle violated the Confrontation Clause and, therefore, preserved that issue for appellate review. However, as to M.E. and M.E.'s mother, Lofton did not assert in the trial court that he was entitled to cross-examine the witness based on his right to confrontation. Accordingly, he has waived this complaint on appeal as to M.E. and M.E.'s mother. See Holland v. State, 802 S.W.2d 696, 699-700 (Tex. Crim. App. 1991). The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Pointer v. State, 380 U.S. 400, 403 (1965). The right to confrontation includes the right to cross-examine a witness to attack his general credibility or to show his possible bias, self-interest, or motives in testifying. Davis v. Alaska, 415 U.S. 308, 316 (1974); Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). A defendant has the right to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest for the witness to testify and, therefore, the scope of appropriate cross-examination is necessarily broad. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); Smith v. State, No. 02-09-00394-CR, 2011 WL 2436774, at *7 (Tex. App.-Fort Worth June 16, 2011, no pet.). However, although "the Confrontation Clause guarantees an opportunity for effective cross-examination," it does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). Accordingly, the trial court had wide discretion in limiting the scope and extent of cross-examination for a number of reasons, including the prevention of harassment, prejudice, confusion of the issues, and marginally relevant interrogation. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 904 (2011) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). "The proponent of evidence to show bias must show that the evidence is relevant. The proponent does this by demonstrating that a nexus, or logical connection, exists between the witness's testimony and the witness's potential motive to testify in favor of the other party." Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004). The trial court does not abuse its discretion by excluding evidence of alleged bias or motive if the defendant's offer of proof does not establish the required nexus. Id. at 111-12; Smith, 2011 WL 2436774, at *7. Each Confrontation Clause issue is viewed on a case-by-case basis. Lopez, 18 S.W.3d at 222. Here, Lofton has failed to show a nexus between Tittle's testimony and a motive for M.E. to testify in a certain manner against Lofton. As set out above, nothing in the offer of proof of Tittle's testimony shows M.E. made a retaliatory allegation against L.E. Thus, the evidence was not relevant to show M.E. had a motive to make a retaliatory allegation against Lofton. Lofton has "failed to make a logical connection" between Tittle's testimony about M.E.'s allegation against L.E. and M.E.'s testimony against Lofton. See Irby, 327 S.W.3d at 152. Accordingly, the trial court did not abuse its discretion by overruling Lofton's objection under the Confrontation Clause.

Alternative Perpetrator

In his second issue, Lofton argues evidence of M.E.'s allegation against L.E. was admissible to show an alternative perpetrator and the trial court's exclusion of the evidence violated Lofton's right to confrontation and to present a complete defense. A criminal defendant's constitutional right to a meaningful opportunity to present a complete defense is grounded in the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process and Confrontation Clauses. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also U.S. Const. amend. VI, XIV. "Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense." Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). However, a trial court's exclusion of evidence may rise to the level of a constitutional violation if the ruling excludes otherwise relevant and reliable evidence which "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier, 68 S.W.3d at 665). Regarding "alternative perpetrator evidence," a defendant has the right to attempt to establish his innocence by showing that someone else committed the crime. Id. at 406. But, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged "alternative perpetrator." Id. Lofton has not met this burden. Even if the evidence tended to show that M.E. was abused by his brother, the evidence cannot be used to infer that Lofton did not abuse M.E. in the particular incident charged. M.E. never recanted his allegation that Lofton sexually abused him and never said there was only one perpetrator. Even Tittle, the only witness who testified she believed M.E.'s allegation against L.E., did not testify that she believed this excluded Lofton as a perpetrator. Rather, Tittle noted that children often have more than one abuser. See Ruiz v. State, 272 S.W.3d 819, 830 (Tex. App.-Austin 2008, no pet.) (noting that even if alleged alternative perpetrator had abused child, "that would not bear on whether appellant also abused her"). The excluded testimony was not sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and M.E.'s brother. See Wiley, 74 S.W.3d at 406. Without the required nexus, the evidence did not support Lofton's alternative perpetrator defense, and the trial court did not err by excluding the evidence. We resolve Lofton's first two issues against him.

Admission of Suicide Note

In his third issue, Lofton argues the trial court erred by admitting a suicide note written by M.E. because the note was hearsay, its probative value was substantially outweighed by its prejudicial effect, and it constituted inadmissible victim-impact testimony. On direct examination, M.E. testified that he had suicidal thoughts and had written a letter about it. On cross-examination, M.E. stated he "guessed" he documented why he was suicidal. Lofton's counsel showed M.E. the letter. M.E. confirmed he wrote that his girlfriend was just using him. M.E. admitted he stated in the letter that he had a toy he talked to, but testified he did not know what he meant by the statement and did not have a toy. M.E. recalled writing that his family hated him. The State requested the entire letter be admitted into evidence under the rule of optional completeness. See Tex. R. Evid. 107. Lofton's counsel objected the letter was hearsay, and the trial court sustained the objection. The trial court then granted the State's request to "delve into that [sic] specific parts of the letter, since he went into specific parts of the letter." Lofton's counsel requested to take M.E. on voir dire, and the trial court held a sub rosa hearing. During that hearing, the trial court asked the State to identify the particular sections of the letter and the subject matter about which it wanted to question M.E. The State identified a number of statements from the letter. The State again requested the entire letter be admitted into evidence, but stated at least those portions of the letter relevant to the sections used during M.E.'s cross-examination should be admitted for context. Lofton's counsel objected the letter was hearsay and inadmissible pursuant to rule 403. The trial court requested the court reporter "read back" Lofton's cross-examination of M.E. about the letter and ruled the entire letter was admissible to show "context and completeness." Lofton asserts the trial court erred by admitting the letter because it was inadmissible hearsay and unduly prejudicial. Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Pena v. State, No. PD-0852-10, 2011 WL 4467257, at *14 (Tex. Crim. App. Sept. 28, 2011). Texas Rule of Evidence 107, known as the rule of optional completeness, is a recognized exception to the hearsay rule. Id. ⁹ Rule 107 "is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing." Id. (quoting Walters, 247 S.W.3d at 218). Therefore, rule 107 is not invoked by a mere reference to a document, statement or act. Id. To be admitted under rule 107, "the omitted portion of the statement must be `on the same subject' and must be `necessary to make it fully understood.'" Id. (quoting Sauceda, 129 S.W.3d at 123). The jury heard evidence that M.E. had suicidal thoughts and had written a letter reflecting those thoughts. Lofton's counsel asked M.E. about specific statements in the letter in an effort to establish M.E. was suicidal because his girlfriend was using him and his family hated him. Lofton's counsel also asked M.E. about the statements in the letter that M.E. spoke to a toy. However, there were other statements in the letter that reflected M.E.'s suicidal thoughts were due to Lofton's abusive conduct. These statements were from the same document and on the same subject as the statements used by Lofton. Lofton's cross-examination of M.E. could have left a false impression with the jury that M.E.'s suicidal thoughts were due to issues other than Lofton's conduct. Accordingly, the statements in the letter relating to Lofton's abusive conduct causing M.E.'s suicidal thoughts were admissible under the rule of optional completeness. We next turn to Lofton's argument that, even if the statements in the letter relating to Lofton's conduct were admissible under the rule of optional completeness, the statements should have been excluded under rule of evidence 403. Although relevant, evidence may be excluded if its probative value is substantially outweighed by a danger that it could unfairly prejudice, confuse, or mislead the jury, if its inclusion will result in undue delay, or if it is needlessly cumulative. Tex. R. Evid. 403. Because rule 403 favors admissibility of relevant evidence, it is presumed that relevant evidence will be more probative than prejudicial. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). It is the opponent's burden to demonstrate the prejudicial attributes of the evidence and to show how these attributes substantially outweigh the probative value of the evidence. Sosa v. State, 230 S.W.3d 192, 195 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd)). In undertaking a rule 403 analysis, the trial court balances:

(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Lofton questioned M.E. about statements made in the letter that could have led the jury to believe M.E was suicidal due to problems with his girlfriend and his family and that M.E. talked to a toy. Other statements in the letter indicated M.E. was suicidal due to Lofton's abusive conduct. The first and second factors set out in Gigliobianco favor the admission of these statements to present a full picture to the jury of M.E.'s mental state at the time he wrote the letter. Further, although the State could have obtained evidence of the reasons M.E. had suicidal thoughts from other sources, that testimony would not have made it clear to the jury M.E.'s state of mind at the time he wrote the letter. As to the remaining factors, evidence that M.E. was suicidal due to Lofton's abusive conduct creates a risk that the jury's heightened emotions may lead it to reach an erroneous conclusion. But, nothing in the record reflects the jury was confused, misled, or unable to evaluate the probative force of any of the evidence. Further, the presentation of the letter did not take an inordinate amount of time. Finally, the evidence did not merely repeat evidence already admitted. Although the jury heard other evidence that M.E. had suicidal thoughts, that evidence did not relate specifically to the time period in which M.E. wrote the letter. Any risk of unfair prejudice from the statements attributing M.E.'s suicidal thoughts to Lofton's abusive conduct did not substantially outweigh the probative value of that evidence to provide the jury a complete picture of M.E.'s mental state at the time he wrote the letter. We conclude the trial court did not abuse its discretion by admitting into evidence the statements in the letter pertaining to Lofton's conduct. Lofton finally argues that, if the statements in the letter attributing M.E.'s suicidal thoughts to Lofton's abusive conduct are admissible, the trial court still erred by admitting the entire letter. However, when an exhibit contains both admissible and inadmissible material, the objection to the exhibit must specifically refer to the material that is objectionable. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).¹⁰ If the party who objects to an exhibit containing both admissible and inadmissible evidence does not specify which part of the exhibit is not admissible, the error in admitting the exhibit is not preserved for review. Wintters v. State, 616 S.W.2d 197, 202 (Tex. Crim. App. [Panel Op.] 1981). As set out above, at least a portion of the letter was admissible under rule of evidence 107 as an exception to the hearsay rule. Lofton had the burden to specify any remaining objectionable portion of the letter. See id. Lofton failed to request deletions of specific items in the letter and failed to specify which portions of the letter were unrelated subject matter. See Foster v. State, 779 S.W.2d 845, 858 (Tex. Crim. App. 1989). Accordingly, Lofton's general objection that the letter was unduly prejudicial preserved nothing for review. See id. at 858-59. We resolve Lofton's third issue against him.

Extraneous Bad Acts

In his final issue, Lofton contends the trial court erred by admitting during the guilt-innocence phase evidence of extraneous bad acts committed by Lofton after his arrest. Lofton specifically complains about testimony he (1) "revved" his engine in front of M.E.'s house and M.E.'s best friend's house, (2) twirled a broomstick while yelling at M.E. and his best friend, J.J., and (3) repeatedly called M.E.'s and J.J.'s telephones, but did not leave a message. Evidence of other crimes or bad acts that a defendant may have committed cannot be introduced at the guilt-innocence phase to show the defendant acted in conformity with his criminal nature and therefore committed the crime for which he is on trial. Tex. R. Evid. 404(b); De La Paz, 279 S.W.3d at 342-43. However, extraneous offenses may be admitted for other purposes, such as to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Tex. R. Evid. 404(b). We generally will not overturn a trial court's ruling admitting extraneous conduct evidence if the record shows (1) the extraneous act is relevant to a material, non-propensity issue, and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz, 279 S.W.3d at 344. Evidence of an extraneous bad act, under certain circumstances, may be admissible to show consciousness of guilt. Ransom v. State, 920 S.W.2d 288, 299 (Tex .Crim. App. 1994) (op. on reh'g). For example, any attempt to tamper with or threaten a witness is probative of a defendant's consciousness of guilt and is therefore relevant under rule 404(b). Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. [Panel Op.] 1983); Rodriguez v. State, 577 S.W.2d 491, 492-93 (Tex. Crim. App. [Panel Op.] 1979). Both M.E. and J.J. testified they felt threatened by Lofton's conduct following his arrest. Accordingly, the evidence of the extraneous acts was relevant to show consciousness of guilt, a material, non-propensity issue. We next turn to whether rule 403 precluded the admission of the evidence. See De La Paz, 279 S.W.3d at 344; Gigliobianco, 210 S.W.3d at 642-43. M.E. and J.J. were both witnesses for the State. Several witnesses testified about Lofton's "revving" his engine in front of M.E.'s and J.J.'s houses and repeatedly calling M.E. and J.J. M.E. and J.J. also testified Lofton yelled at them while waving a broom and that Lofton left a message for J.J. consisting of a rap song. M.E. testified the rap song had "bad lyrics," and J.J. testified the lyrics were about killing people. J.J. also testified Lofton followed him home from school one day. Lofton admitted he called J .J., but claimed he only did so after J.J. began calling Lofton and not saying anything. Lofton denied leaving a message for J.J., and denied threatening either J.J. or M.E. However, both M.E. and J.J. testified they felt threatened by the conduct. The evidence of Lofton's conduct following his arrest was probative of Lofton's consciousness of guilt. See Ransom, 920 S.W.2d at 299-300 (noting probative value of an extraneous crime showing consciousness of guilt may well outweigh its prejudicial impact); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.-Austin 1990, no pet.) (characterizing consciousness of guilt evidence as one of strongest types of evidence of guilt). The State's need for the evidence was significant because M.E. and Lofton were the only two witnesses to the actual conduct, and Lofton denied touching M.E. Evidence that Lofton was conscious of his guilt tended to show the alleged abusive conduct with M.E. had occurred. See Torres, 794 S.W.2d at 598-99. The evidence was unlikely to influence the jury in an irrational way; to the contrary, it is rational to conclude Lofton threatened M.E. and his best friend because Lofton was guilty of the offense. Finally, Lofton admits the time needed to develop the evidence at trial was not extensive. We conclude the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The trial court did not abuse its discretion by admitting evidence of Lofton's extraneous bad acts during the guilt-innocence phase. See De La Paz, 279 S.W.3d at 344. We resolve Lofton's fourth issue against him. We affirm the trial court's judgment.