Mark Fruge v. State, 03-14-00723-CR

Background

Mark Fruge was indicted on three charges: aggravated assault with a deadly weapon, aggravated robbery, and (in a separate indictment) attempted capital murder and aggravated assault of a public servant; enhancement paragraphs alleged three prior felony convictions.
Jury acquitted Fruge of attempted capital murder but convicted him of the three other offenses; at punishment the jury found enhancements true and imposed life sentences on each count.
During voir dire a veniremember made statements indicating he would need to be "100 percent certain" to convict and that reasonable doubt "sounds like you’re trying to prove innocence," prompting the State to move to strike for cause; the trial court granted the strike.
The State introduced evidence of an extraneous incident occurring immediately after the shooting of Officer Granderson: Fruge allegedly produced a gun, boarded Richard Harris’s car, directed the driver to flee, and later exited—evidence the defense objected to as improper 404(b) character-evidence and as unduly prejudicial under Rule 403.
The trial court admitted the venire strike and the Harris evidence; on appeal Fruge challenged both rulings. The Court of Appeals affirmed convictions, modified one clerical error in a judgment to reflect the correct Penal Code subsection, and otherwise affirmed.

Issues

Issue	Fruge's Argument	State's Argument	Held
Whether the trial court erred by granting the State’s challenge for cause to a veniremember	The panelist did not actually require a higher burden than beyond a reasonable doubt; his "100 percent" language reflected personal caution or was adopted from the State’s wording; dismissal was improper and denied a fair jury	Panelist repeatedly stated he would need to be "100 percent certain" and made contradictory statements about applying the law; this demonstrates inability/unwillingness to follow the law	No abuse of discretion: trial court reasonably found vacillating answers and statements implying proof beyond all doubt, so strike for cause was proper.
Whether the trial court erred by admitting evidence of the Harris incident as extraneous offense (Rule 404(b))	The Harris evidence was only character-conformity evidence and irrelevant to elements; it was unnecessary because identity and arrest were otherwise established	The Harris incident occurred in the immediate aftermath of the charged crimes and was part of the same transaction/context demonstrating flight and intent to evade arrest—permitted contextual evidence	No abuse of discretion: evidence admitted as same-transaction/contextual evidence and as proof of flight/intent; admissible under 404(b) doctrines.
Whether the trial court should have excluded the Harris evidence under Rule 403 as unduly prejudicial	The extraneous incident was more prejudicial than probative and unnecessary given other evidence	The probative value (showing flight and intent to evade) outweighed any limited prejudicial effect; evidence was brief, non-graphic, and not confusing	No abuse of discretion: balancing factors favored admission; no clear disparity between probative value and prejudice.
Clerical error in judgment	N/A (court noticed)	N/A	Court modified one judgment to correct Penal Code subsection from (A) to (B) and affirmed as modified.

Key Cases Cited

Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) (venireperson requiring proof "beyond all doubt" may be excused for cause)
Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994) (venireperson properly excluded when demanding 100% certainty)
Fierro v. State, 969 S.W.2d 51 (Tex. App.—Austin 1998) (abuse-of-discretion standard for challenge-for-cause review; deference to trial court’s demeanor findings)
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) (same-transaction contextual evidence admissible when offense would make little sense without it)
Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995) (extraneous acts during flight admissible to show intent to evade and are properly admitted)
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (factors for Rule 403 balancing)
Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) (presumption that probative value of relevant evidence exceeds unfair prejudice)
United States v. Fields, 483 F.3d 313 (5th Cir. 2007) (deference afforded trial courts on Rule 403 determinations)
Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) (appellate courts may modify clerical errors in judgments)