Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00447-CR ___________________________ DANIEL PARK, Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1788431 Before Sudderth, C.J.; Kerr and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION Appellant Daniel Park appeals his conviction for aggravated robbery by threat with a deadly weapon and his 15-year sentence. See Tex. Penal Code § 29.03(a)(2). In two points, Park complains that the trial court erred (1) by overruling his Rule 403 objection to certain evidence and (2) by denying his request that robbery be included in the jury charge as a lesser-included offense. Because the trial court did not err in either respect, we will affirm. I. Background1 After getting off work one day, Darius Allison drove to a gas station to purchase water. He parked the car, left its motor running, stowed a handgun in the console, got out of the car, and went to the station’s service window. Soon after, he turned and saw Park in his car’s driver’s seat. Reacting quickly to prevent Park from stealing his car, Allison ran to it and jumped onto the hood. Park began driving erratically, swerving to try to throw Allison off the hood. Park found the gun and pointed it at him. At some point, Park pulled into a restaurant’s parking lot and demanded money from Allison. Allison tried to get control of the keys or the steering wheel, but Park started driving again, dragging Allison along as he held onto and “dangled” from the driver’s door. Because evidentiary sufficiency is not at issue, we recite only the facts 1 necessary to this appeal’s disposition. 2 Eventually, Park hit two stationary poles, which threw Allison off the hood and caused him to black out. When Allison regained consciousness, he was in “a huge amount of pain.” Among the medical personnel on scene, paramedic David Salguero treated Allison’s injuries. Police located Park, arrested him, and interviewed him. Park admitted to shooting at Allison and trying to throw him from the car. II. Park’s Rule 403 Objection In his first point, Park complains that the trial court erred by overruling his Rule 403 objection to Salguero’s testimony about treating Allison at the scene of the incident. See Tex. R. Evid. 403. This point is without merit. A. Standard of Review A trial court exercises wide discretion in deciding whether to admit evidence, and absent an abuse of discretion, we may not disturb its evidentiary rulings. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As long as a trial court’s evidentiary rulings fall within the zone of reasonable disagreement, we will uphold them. Id. “Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial.” James v. State, 623 S.W.3d 533, 546–47 (Tex. App.—Fort Worth 2021, no pet.) (first citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g); and then citing Emich v. State, No. 02-18-00059-CR, 2019 WL 311153, at *7 (Tex. App.—Fort Worth Jan. 24, 2019, no pet.) (mem. op., not designated for publication)). Because of this 3 presumption, it is the burden of the party opposing the admission of the evidence to show that the evidence’s probative value is substantially outweighed by one or more of the dangers listed in Rule 403. James, 623 S.W.3d at 547. To determine whether evidence is admissible over a Rule 403 objection, the trial court must conduct a balancing test. Montgomery, 810 S.W.2d at 389; see Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals has instructed that when undertaking a Rule 403 analysis, courts must balance (1) the inherent probative force of the proffered item of evidence and (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency that a jury that has not been equipped to evaluate the probative force of the evidence would give it undue weight, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 641–42. B. Analysis Park objected to Salguero’s testimony because the State had alleged aggravated robbery by threat—not bodily contact. He then argued that Salguero’s testimony about Allison’s injuries would be overly prejudicial and outweigh its probative value. He also complained that testimony about Allison’s medical treatment at the scene was cumulative of Allison’s own testimony about his injuries. The State countered that it 4 intended to ask Salguero to briefly go over his treatment of Allison and then to explain the medical terms in Allison’s medical records. The trial court overruled Park’s objection and gave him a running objection. Salguero began by testifying to his training and experience as a paramedic. He offered testimony about his responding to treat Allison at the scene of the incident. The State then asked him a series of questions about his report and generally about various medical terms. The final question the State asked was “[i]f [Allison’s] injuries were left untreated, would they have been fatal?” Salguero responded, “Yes.” On cross-examination, Salguero agreed that the medical records showed that Allison had improved with treatment. He also agreed that Allison had “some pretty serious injuries” and that he had helped to save his life. Considering the evidence, the Gigliobianco factors weigh in favor of the admission of Salguero’s testimony. On the first two factors, Park describes Salguero’s testimony as “overkill, at least in regard to [Allison’s] wounds” identified in photos that were in evidence. But Salguero’s testimony confirmed what Park’s counsel had set up in his opening statement when he said, “He was hurt pretty badly.” Salguero’s testimony was also relevant to substantiate Allison’s fear of imminent bodily injury or death from Park’s use of the car and gun. Concerning the third factor, Park argues that “extraneous-offense evidence in the form of sexually[ ]related misconduct of this nature can have a tendency to suggest a verdict on an improper basis.” Of course, this argument has no relation 5 whatsoever to Salguero’s testimony, so Park failed to carry his burden on the third factor. On the fourth and sixth factors, Park argues that Salguero’s testimony was likely to cause confusion or distraction because it was “likely to consume an inordinate amount of time and prosecutorial effort” and was “overly repetitive.” But the State’s questioning of Salguero barely spans 15 pages of the reporter’s record 2 and is the only place in which a medical provider explained medical terminology that the jurors might not know. His testimony did not consume much time or prosecutorial effort, was not repetitive, and likely helped the jury to be less confused about the medical records in evidence. Concerning the fifth factor, Park acknowledges that it “leans toward admission.” We need not consider it further. In sum, the six factors weigh in favor of admission, and nothing in the record indicates that Salguero’s short testimony about his treatment of Allison at the incident scene or his discussion of medical terminology resulted in unfair prejudice—or any prejudice—to Park. See Gigliobianco, 210 S.W.3d at 641–42. Accordingly, the trial court did not abuse its discretion by allowing Salguero’s testimony. See Winegarner, 235 S.W.3d at 790. We overrule Park’s first point. In addition to Salguero, the State called five witnesses, including Allison, and 2 the State’s case-in-chief spanned approximately 130 pages of the reporter’s record. 6 III. Park’s Jury-Charge Request In his second point, Park claims that the trial court erred by refusing to charge the jury on the lesser-included offense of robbery. We disagree. A. Standard of Review We analyze two steps to determine whether an appellant was entitled to a lesser-included-offense instruction: (1) Are the elements of the lesser-included offense included within the proof necessary to establish the charged offense’s elements? (2) Is there evidence in the record from which a jury could find the defendant guilty of only the lesser-included offense? State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993). Step one is not at issue in this appeal because robbery by threat is a lesser-included offense of aggravated robbery by threat with a deadly weapon. See Tex. Penal Code §§ 29.02(a)(2), 29.03(a)(2); Frost v. State, 25 S.W.3d 395, 401 n.11 (Tex. App.—Austin 2000, no pet.) (citing Castillo v. State, 944 S.W.2d 440, 441–42 (Tex. App.—Houston [14th Dist.] 1997, no pet.)); cf. Morales v. State, 4 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“[R]obbery by bodily injury was not a lesser[-]included offense of aggravated robbery by threat.”). The second step is a fact determination based on all the evidence presented at trial. Meru, 414 S.W.3d at 163; see Ritcherson v. State, 568 S.W.3d 667, 677 (Tex. Crim. 7 App. 2018) (admonishing that we cannot make a determination from isolated evidence in a vacuum). We consider whether the record contains “(1) evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser-included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense.” Ritcherson, 568 S.W.3d at 671. In this step, “the evidence must establish that the lesser-included offense provides the jury with ‘a valid, rational alternative to the charged offense.’” Wade v. State, 663 S.W.3d 175, 181 (Tex. Crim. App. 2022) (quoting Hall, 225 S.W.3d at 536). B. Analysis Here, no dispute exists that Park used the handgun and the vehicle to place Allison in fear of imminent bodily injury or death. Allison testified that he jumped on his car’s hood, and Park “floor[ed] it” down the street for two or three miles. Allison said that several times Park tried to throw him off the hood. Allison held on, and at some point, Park pulled the gun out of the car’s console and “[p]ointed it directly at [Allison’s] face.” On cross-examination, Allison acknowledged that he was unsure whether Park had tried to fire the gun, but Allison also said, “I don’t know how I would hear the gun click if I’m on the hood of the car.” Allison testified that Park deliberately drove 8 him into two poles, causing Allison to “kick[] off the car completely and instantly black[] out.” Park did not testify at trial. But on the night of his arrest, he spoke with an investigating officer. Park told the officer that he had attempted to fire the gun.3 Park also told the officer that “he hit the gas, accelerated, and then he would brake, trying to fling [Allison] off the hood.” When the officer was asked what Park had said “about accelerating the car into the concrete poles,” the officer responded “[t]hat when it flung [Allison] off, that [Park] hoped [Allison] was hurt.” No testimony or other evidence tended to negate that Park had used either the gun or the car to place Allison in fear of imminent bodily injury or death. Thus, there is no evidence that he is guilty of only the lesser-included offense of robbery. See Essary v. State, No. 2-02-261-CR, 2003 WL 21404823, at *3 (Tex. App.—Fort Worth June 19, 2003, no pet.) (per curiam) (mem. op., not designated for publication) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). Consequently, the trial court did not err by refusing to charge the jury on the lesser-included robbery offense. See id.; see also Tijerina v. State, No. 04-01-00526-CR, 2003 WL 183686, at *1–2 (Tex. App.—San Antonio Jan. 29, 2003, no pet.) (mem. op., not designated for publication) (holding that the trial court properly denied a lesser-included robbery instruction 3 Upon later examination, a spent shell casing was found jammed in the gun. 9 based on uncontroverted testimony that the appellant had threatened his victims by holding a real gun to their heads). We overrule Park’s second point. IV. Conclusion Having overruled Park’s two points, we affirm the trial court’s judgment. /s/ Elizabeth Kerr Elizabeth Kerr Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 27, 2026 10