Joseph John Flores II v. State

Opinion issued February 26, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NOS. 01-10-00531-CR, 01-10-00532-CR, 01-10-00534-CR
———————————
JOSEPH JOHN FLORES, II, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 228th Judicial District Court
Harris County, Texas
Trial Court Case Nos. 1114129, 1114130, 1222277
 MEMORANDUM OPINION

A jury found appellant, Joseph John Flores, II, guilty of two offenses of

aggravated assault on a public servant1 and the offense of possession of more than

four and less than 200 grams of cocaine.2 The trial court assessed his punishment

at confinement for thirty years for the aggravated-assault offenses and confinement

for fifteen years for the possession-of-cocaine offense, and it ordered the sentences

to run concurrently.3 In his first issue, appellant contends that the trial court erred

in prohibiting him from questioning the venire panel about potential bias

concerning police officer testimony. In his second through sixteenth issues,

appellant contends that the State suppressed evidence that would have rendered his

prior felony conviction inadmissible and the trial court erred in denying his

subsequent motion for a mistrial and motion to suppress the felony conviction,

admitting the prior felony conviction, admitting testimony that a grand jury “no-

billed” the complainant public servants, admitting inadmissible hearsay statements

for impeachment, admitting improper opinion testimony, admitting testimony of
1
See TEX. PENAL CODE ANN. § 22.02(a),(b)(2)(B) (Vernon 2011); appellate cause
numbers 01-10-00531-CR, 01-10-00532-CR; trial court cause numbers 1114129,
1114130.
2
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a),(d)
(Vernon 2010); appellate cause number 01-10-00534-CR; trial court cause number
1222277.
3
Appellant also pleaded guilty to the offense of possession with intent to deliver
more than 400 grams of hydrocodone. He challenges that conviction in a separate
appeal under appellate cause number 01-10-00533-CR.
2
extraneous misconduct and extraneous offenses, and excluding relevant testimony.

In his seventeenth and eighteenth issues, appellant contends that the trial court

erred in permitting improper jury argument by the State. In his nineteenth through

twenty-fourth issues, appellant contends that the trial court erred in improperly

instructing the jury, refusing to submit to the jury his requested instructions, and

denying his motion to set aside his indictment for possession of cocaine based on

“prosecutorial vindictiveness,” and the trial court’s cumulative errors denied him

due process of law and a fair trial.

We affirm.

Background

Houston Police Department (“HPD”) Officer F. Rodriguez testified that on

April 23, 2007, he, as a case agent in HPD’s narcotics division, received

information from a confidential informant that appellant sold narcotics from his

apartment. To confirm the informant’s report, Rodriguez, along with a “targeted

narcotics enforcement team,” began conducting surveillance on appellant’s

apartment. He first sent the informant to the apartment to make a “buy,” and the

informant returned with codeine obtained from within the apartment. The police

officers continued their surveillance and noticed “sporadic traffic” in and out of

appellant’s apartment. Based on the information he received, Rodriguez drafted a

search warrant for the apartment.

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 After a judge signed the warrant, Officer Rodriguez, on April 25, 2007 at

6:00 a.m., convened a team of himself, Officer F. Scoggins, Lieutenant D. Gafford,

and four other HPD officers to address his “raid plan” for executing the warrant.

The team wore the “standard uniform” for a “hard entry,” which consisted of black

pants, “some kind of black T-shirt that says police,” a “heavy protective ballistic

vest” with “police” printed on the front and back, and ballistic Kevlar helmets.

Rodriguez’s surveillance indicated that appellant would usually sell narcotics until

4:00 a.m., so he expected appellant to be asleep when the police officers executed

the warrant.

Upon the officers’ arrival at the apartment complex, Officer Wood obtained

a key to appellant’s apartment from the apartment manager. As the officers

approached appellant’s front door, Officer Rodriguez noted that a light was on in

the kitchen. Wood knocked, announced “police,” and attempted to open the door

with the key, but the door was restrained by a deadbolt lock. Rodriguez, who

heard “movement” and “footsteps running” from inside the apartment, motioned

for HPD Officer Bradley to knock down the door with a battering ram. After three

tries, Bradley breached the door and stepped aside to allow Scoggins, who was

designated as the “point man” and carried a shotgun, to enter the apartment first,

followed by Rodriguez.

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 Upon their entry, all of the officers shouted “police, search warrant, police,

get on the ground.” Rodriguez then saw appellant move away from the front door

with a shotgun “that he was trying to manipulate and trying to work.” Officer

Scoggins shouted at appellant to “drop the gun,” which was pointed at Scoggins

and Rodriguez, but appellant “ejected a round from the chamber and tried to load

another one to try to make it fire.” Scoggins then shot appellant, who retreated

behind a wall for “a second” before he “stepped back out” and attempted to “jack

another round into the chamber.” Rodriguez then shot him. Appellant dropped the

shotgun and fell to the ground. Rodriguez noticed a woman, later identified as

Jessica Davies, on a couch beside the other officers, and he ordered Davies to show

her hands. She “totally complied and just laid there and didn’t move.” He then

called for emergency assistance for appellant, and, because the officers had shot a

civilian, he called HPD’s Internal Affairs Office to the scene.

After paramedics transported appellant to a hospital, the officers proceeded

to search the apartment. They discovered several “little bags” of marijuana

throughout the apartment, “pure” codeine, and several bags of cocaine that Officer

Rodriguez opined to have come “off of a brick of cocaine or a kilo of cocaine.”

The officers also found a pistol, several baby bottles, which Rodriguez opined

were used for distributing codeine, a ledger tracking various narcotics sales, and a

safe containing “a whole list of different drugs,” over 1,000 pre-packaged

5
hydrocodone pills, 593 pre-packaged Xanax pills, and “hydroponic” marijuana.

Rodriguez explained that the amount and packaging of the narcotics were

consistent with an intent to deliver. And he noted that although he and Officer

Scoggins were called before a grand jury regarding appellant’s shooting, they were

“cleared of wrongdoing.”

On cross-examination, Officer Rodriguez conceded that in the stance that

officers are trained to use when aiming their firearms at a target, the word “police”

on the front of their ballistics vests is blocked by their arm. He also conceded that

a burglar could impersonate a police officer in an attempt into gain entry to a

residence. Rodriguez noted that after shooting appellant, he removed two unfired

cartridges from appellant’s shotgun. And Rodriguez explained that the officers

found forty-two grams of cocaine underneath the mattress of appellant’s bed and

thirteen grams of cocaine behind the headboard.

Officer Scoggins testified that the officers wore raid gear instead of police

uniforms because the warrant was considered “high-risk” and the officers needed

greater protection. The raid gear was distinctively marked with the word “police”

on the front and back. He explained that after very loudly announcing, “police,

search warrant, get on the ground,” he entered the apartment and, after

one or two steps, saw appellant moving away from the front door and pointing a

shotgun at him. Scoggins “fully expected to get shot” because appellant was

6
fumbling with his firearm and “looked like he was trying to discharge it.”

Accordingly, Scoggins fired his shotgun “as fast as [he] could take the safety off

and shoot it.” Appellant then hid behind a wall, but quickly emerged and pointed

his shotgun toward Officer Rodriguez. Scoggins then pulled the trigger on his

shotgun a second time, but it misfired. As Scoggins attempted to fix the

malfunction, Rodriguez shot appellant, who fell to the ground and dropped his

shotgun. On cross-examination, Scoggins admitted that before HPD Internal

Affairs officers arrived to investigate the shooting, he and the other officers

informally discussed the incident. He further admitted that other officers were

present when he was first questioned by the Internal Affairs investigators.

James Miller, a chemist in HPD Crime Lab’s “controlled substances

section,” testified that he received and tested the narcotics seized from the search

of appellant’s apartment. The combined weight of the cocaine found in appellant’s

apartment was 44.3 grams. Miller explained that the weights of the narcotics,

when tested in the crime lab, often differ from the weights obtained by police

officers at crime scenes because the officers occasionally include the packaging

when weighing narcotics. He also noted that the crime lab is more particular about

the accuracy of its scales. On cross-examination, Miller explained that he received

two different samples of cocaine, the larger of which weighed 41.1 grams and the

smaller of which weighed 3.2 grams.

7
 Jennifer Davies first testified outside of the presence of the jury for the trial

court to determine the voluntariness of a written statement that she had given to

officers after the shooting. She explained that after the officers had shot appellant,

they placed her in handcuffs and escorted her to the back of a patrol car, where she

remained for “[a]bout six and a half hours.” At some point, an officer asked her

whether she had “heard anything” before the officers entered the apartment.

Before she could respond, the officer told her, “You need to think about what

you’re saying because you can go down just like that guy.” Another officer then

transported her to a police station, asked her questions, and “provid[ed her] the

answer” to those questions, which were not “consistent with what [she] saw and

. . . heard.” Davies believed that the officers were threatening to charge her with

possession of the narcotics found in appellant’s apartment if she did not answer

their questions the way that they suggested. The trial court denied appellant’s

motion to suppress Davies’ statement, finding that it was made voluntarily and was

not a product of coercion.

Davies then testified in the presence of the jury that, as of April 25, 2007,

she had been dating appellant for “[m]aybe four months.” And she continued to

date appellant through the time of the trial. Davies explained that she had arrived

at appellant’s house at around 4:00 a.m., before the execution of the search

warrant, to watch television and “just hang out.” Appellant had told her that he

8
“possesse[d] some drugs,” such as codeine and marijuana, but she did not know

where any narcotics were stored and did not know of any cocaine in the apartment.

Davies fell asleep on the couch while the television was still on, and, when she

awoke, she saw “two or three people in a dark uniform” and heard “a lot of

hollering.” She then turned and saw appellant laying down and not moving.

Davies did not hear anyone yell “police,” and she did not see appellant attempt to

shoot at Officers Rodriguez and Scoggins. A police officer then handcuffed

Davies and escorted her to a patrol car in the apartment complex parking lot, where

she sat for approximately six hours. Eventually, the officers escorted another

woman, later identified as Jeannette Russell, to the patrol car to wait with Davies.

After Davies admitted that she had previously been convicted of making a

false statement to a peace officer, she was shown State’s Exhibit number 156, the

written statement she had given to a police officer at a police station. In her sworn

statement, Davies had said that she had “heard a pound at the door and a loud male

voice say police.” However, she testified that she felt “threatened” into signing the

statement and she did not actually hear a pound on the door or a voice saying,

“police.” Davies also admitted that much of the information given in her

statement, such as the nature of her relationship with appellant, was true. The trial

court then admitted the written statement into evidence with the limiting

9
instruction that it be considered only for the purpose of “passing upon the

credibility of this witness.”

Jeanette Russell testified that on the morning of April 25, 2007, she was

sitting on the patio at her apartment, located in the same complex as appellant’s

apartment. She was “starting to doze off” when she was awakened by loud noises.

Russell then saw several police officers approach appellant’s apartment, and they

were “wearing uniforms and vests that had Houston police on them in gold.” As

the officers reached the door to appellant’s apartment, Russell heard them loudly

“holler[] police” followed by three “bangs.” Some time later, she saw an officer

escort Davies out of appellant’s apartment.

Later that day, an HPD detective came to Russell’s apartment, informed her

that the officers had seen her on her patio, and asked her to come to a police station

to give a statement regarding what she had seen. The detective escorted her to a

patrol car, where Davies was sitting in the back seat, and he told them that they

could not talk to each other about the shooting. He then drove Russell and Davies

to a police station, where Russell gave a statement to an officer, who “heard [her]

statement and typed till it was finished.” After giving her statement, Russell

waited in the police station with Davies, who told her that her boyfriend had just

been shot by a police officer. Davies told her that she knew they were police

officers when they entered the apartment. She stated that appellant had “made bad

10
choices” and had tried to shoot the officers. However, Davies never mentioned

being coerced or intimidated into giving a false statement. On cross-examination,

Russell explained she had a “clear view” of the front and back of the police

officers’ vests as they approached appellant’s apartment.

HPD Detective J. Selvera testified that he was assigned after the shooting to

“canvass the area” around appellant’s apartment for potential witnesses. After

speaking with several of appellant’s neighbors, Selvera interviewed appellant at a

hospital. After Selvera began to read to appellant his legal rights, but before he

could finish, he had to “terminate the interview.” However, after Selvera had tried

“several times” to end the interview, appellant “continue[d] to re-initiate” the

conversation. Selvera then recorded appellant’s statements, which were admitted

into evidence.

Karen Fanaff, who had lived in the same apartment complex as appellant,

testified that on the morning of April 25, 2007, she heard a “loud bang” followed

by a second sound she immediately recognized as a gunshot. Startled, she stepped

onto her balcony and saw “six or seven gentlemen who appeared . . . to be police

officers.” Some of the officers were wearing “standard uniforms,” while others

were dressed like a “SWAT team” but still appeared to be “official” police

officers. Although Fanaff did not hear any voices or anyone yelling “police” from

inside her apartment, she was not surprised because of the noise in her own

11
apartment. After Fanaff testified, several other neighbors testified that they had

not heard anyone yell “police.”

Appellant testified that on April 25, 2007, he knowingly possessed, with the

intent to sell, hydrocodone, Xanax, and marijuana. However, he explained that he

was not aware that cocaine had been hidden in his bedroom. And he later learned

that the cocaine belonged to his friends, Danny Garcia and Aaron Trevino.

Appellant explained that Garcia and Trevino had previously asked if they could

leave cocaine in his apartment, but they did not ask for permission on that day.

Appellant also noted that several burglaries had been committed in his apartment

complex, and he had seen a news report about “people pretending to be police

officers when they broke into residences.” And a few weeks before trial, he had

visited a “police supply store” where he was allowed to purchase shirts and hats

that had “police” written on them.

In the morning on April 25, 2007, appellant had smoked marijuana and had

taken codeine before Davies had come to his apartment. They fell asleep shortly

after her arrival and had left the television and the kitchen light on. Appellant was

then awakened by a loud noise “like a hurricane” hitting his front door. Because

he believed that “burglars” or “robbers” were trying to get inside his apartment,

appellant grabbed his firearm when a man in black clothes entered the apartment

carrying a firearm. Appellant then “cocked the shotgun” and “cycled the action,”

12
with the safety still engaged, in an attempt to frighten the intruder. Appellant was

then shot, took cover behind a wall, and then emerged from behind the wall to

“cycle the action at them again to try to scare them away.” However, he was

“instantaneously” shot again. During the entire incident, appellant did not hear

anyone yell “police” or see badges, patches, or a distinctive police uniform. Only

after he was shot, did appellant realize that the men who had entered his apartment

were police officers.

On cross-examination, appellant admitted that he had previously

“disregarded the lawful commands of a police officer knowing they were a police

officer” and been convicted of the felony offense of possession of a controlled

substance and the misdemeanor offenses of theft and burglary of a motor vehicle.

He explained that Garcia and Trevino had come to his apartment the night before

the shooting and suggested that they must have left the cocaine in his room that

night. Later, when Detective Selvera attempted to interview him at the hospital,

appellant told him, “I need to talk to my lawyer because I know I didn’t try to kill

no one.” However, after invoking his right to counsel, appellant told Selvera that

he “thought [he] was getting robbed” and he “was cocking [his gun] just to try to

scare them.”

13
 Voir Dire

In his first issue, appellant argues that the trial court erred in prohibiting him

from asking the venire panel about any “biases in determining the credibility of

multiple police officers versus one citizen” because it prevented him from

determining which members of the panel were challengeable for cause.

Questions during voir dire are proper if they seek to discover a venire

member’s views on an issue applicable to the case. Smith v. State, 703 S.W.2d

641, 643 (Tex. Crim. App. 1985). Voir dire examination permits the parties to

assess the desirability of prospective jurors and to select a “competent, fair,

impartial, and unprejudiced jury[.]” Staley v. State, 887 S.W.2d 885, 896–97 (Tex.

Crim. App. 1994). Because a trial court has broad discretion over the process of

selecting a jury, an appellate court should not disturb a trial court’s ruling on the

propriety of a particular question during voir dire absent an abuse of discretion.

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).

An attorney may not “attempt to bind or commit a prospective juror to a

verdict based on a hypothetical set of facts.” Lydia v. State, 109 S.W.3d 495, 497

(Tex. Crim. App. 2003). “Questions that commit prospective jurors to a position,

using a hypothetical or otherwise, are improper and serve no purpose other than to

commit the jury to a specific set of facts before the presentation of any evidence at

trial.” Id.

14
 The test for determining when a voir dire question calls for an improper

commitment has two steps: “(1) Is the question a commitment question, and (2)

Does the question include only those facts that lead to a valid challenge for

cause?” Id. (emphasis added). If the answer to the first question is “yes” and the

answer to the second question is “no,” then the question asked is an improper

commitment question. Id. at 497–98. “Commitment questions ‘commit a

prospective juror to resolve, or to refrain from resolving, an issue a certain way

after learning a particular fact.’” Id. (quoting Standefer v. State, 59 S.W.3d 177,

179 (Tex. Crim. App. 2001)).

Here, appellant’s counsel asked a venire member,

Well, how hard would it be for five or six police officers who worked
together to get together and make sure that they’re telling the same
story, even if it’s not the truth?

The venire member answered, “You’d have to assume that they would have

colluded together to do that.” Appellant’s counsel then asked,

And are you not able to—are you not able to envision a scenario
where officers, maybe with the help of prosecutors—

The State objected to the question as “improper,” and the trial court sustained the

objection, stating, “That’s a commitment question.” Appellant then asked the

same venire member,

[W]ould you . . . automatically believe the testimony of multiple
officers against one citizen just because there happened to be multiple
officers?
15
The State objected to the question as an “improper commitment,” and the trial

court sustained the objection.

Appellant concedes that he asked a commitment question, but asserts that it

was a proper commitment question that was designed to elicit whether any venire

members were “biased in favor of police officers.” The State asserts that, rather

than eliciting potential bias from the venire panel, the question “attempted to bias

or prejudice the panel by indoctrinating them on appellant’s theory” that the

officers had colluded in providing their testimony.

A venire member may be challenged for cause if the member “has a bias or

prejudice in favor of or against the defendant.” TEX. CODE CRIM. PROC. ANN. art.

35.16(a)(9) (Vernon 2006). A venire member may also be challenged for cause if

the juror “cannot impartially judge the credibility of a witness.” Ladd v. State, 3

S.W.3d 547, 560 (Tex. Crim. App. 1999). Here, appellant asked if the venire

member would “automatically” believe the testimony of several police officers

over the testimony of one civilian, seeking to discover whether the member could

impartially evaluate the testimony of a witness whose testimony conflicted with

that of several police officers. A venire member who would “automatically”

believe the testimony of several police officers could not impartially judge the

credibility of the witnesses. Thus, the proffered question did not seek to “create

16
bias” by instructing the juror “what trial counsel wanted him to believe” as the

State asserts.

The State also asserts that the question constituted an improper “global

fishing expedition,” relying on Barajas, 93 S.W.3d at 41–42. In Barajas, the

Texas Court of Criminal Appeals held that a trial court acted within its discretion

by prohibiting the defendant from asking “whether the venire members could be

impartial in an indecency case involving a victim who was eight to ten years old

or, in the alternative, a victim who was nine years old.” Id. at 38. The court

explained that asking a venire member whether he could be “fair and impartial”

under a given state of facts is a “license to go fishing,” and it emphasized the “need

for counsel to ask specific questions.” Id. at 41. Here, however, appellant’s

question was sufficiently specific so as not to constitute a “global fishing

expedition” as described in Barajas. Appellant’s question was a proper

commitment question, and we hold that the trial court abused its discretion in

denying him the opportunity to proffer it to the venire panel. See Vann v. State,

216 S.W.3d 881, 885–86 (Tex. App.—Fort Worth 2007, no pet.) (holding that trial

court abused its discretion in prohibiting defense counsel from asking whether

venire panel “would automatically disbelieve a witness with a prior felony

conviction”); Rivera v. State, 82 S.W.3d 64, 66–67 (Tex. App.—San Antonio

2002, pet. ref’d) (holding that trial court abused its discretion in prohibiting

17
defense counsel from asking whether venire panel would automatically disbelieve

defendant’s testimony).

A trial court’s refusal to permit defense counsel to ask a proper question

during voir dire constitutes constitutional error. Jones v. State, 223 S.W.3d 379,

383–84 (Tex. Crim. App. 2007). When reviewing the harm arising from

constitutional error, a court of appeals must reverse the judgment of conviction

unless it determines beyond a reasonable doubt that the error did not contribute to

the conviction or punishment. TEX. R. APP. P. 44.2(a). We focus on the integrity

of the process leading to the conviction, not on the propriety of the outcome of the

trial. See Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We

must calculate, as nearly as possible, the probable impact of the error on the jury in

light of the evidence adduced at trial. McCarthy v. State, 65 S.W.3d 47, 55 (Tex.

Crim. App. 2001). “If there is a reasonable likelihood that the error materially

affected the jury’s deliberations, then the error is not harmless beyond a reasonable

doubt.” Id. The critical inquiry is whether there is “a reasonable possibility that

the error, either alone or in context, moved the jury from a state of nonpersuasion

to one of persuasion as to the issue in question.” Wesbrook, 29 S.W.3d at 119.

When analyzing the harm from the prohibition of a proper question to a

venire panel, we review the entire record, and to the extent applicable, use the

following factors as context for our consideration of the error’s effect on the jury’s

18
deliberations: (1) any testimony or physical evidence admitted for the jury’s

consideration; (2) the nature of the evidence supporting the verdict; (3) the

character of the alleged error and how it might be considered in connection with

other evidence in the case; (4) the jury instructions; (5) the State’s theory and any

defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State

emphasized the error. Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App.

2005).

Here, the evidence introduced at trial included the testimony of Officers

Rodriguez and Scoggins and Lieutenant Gafford. Although it also included

Russell’s testimony and Davies’ written statement, the credibility of the police

officers was initially important to the State’s case. And the State, in its closing

argument, did emphasize that multiple police officers and Russell had testified that

the officers had clearly announced their presence before entering appellant’s

apartment.

However, in regard to the voir dire, appellant’s counsel was allowed to ask

the venire panel members about whether they believed that “police officers are

more credible than other citizens.” He was also allowed to ask whether the panel

members might think that “a police officer would never exaggerate or distort facts”

and, “What might cause a police officer to lie under oath?” Thus, appellant was

given ample opportunity to probe the venire panel members as to any bias or

19
prejudice they might have had in favor of the testimony of police officers.

Viewing the prohibited question in the context of the entire voir dire, we conclude

beyond a reasonable doubt that there is not a reasonable likelihood that the trial

court’s error contributed to appellant’s conviction. See Rodriguez-Flores v. State,

351 S.W.3d 612, 626–27 (Tex. App.—Austin 2011, pet. ref’d) (holding that trial

court’s denial of defendant’s question regarding jurors’ ability to apply duress

defense was harmless where defendant was still able to engage in extensive

discussion with and questioning regarding “the duress defense”). Accordingly, we

hold that any error in the trial court’s prohibiting of appellant’s proper commitment

question was harmless.

We overrule appellant’s first issue.

Exculpatory Evidence

In his second and third issues, appellant argues that the trial court erred in

“denying a mistrial after the State disclosed” that it had “suppressed evidence that

would have rendered appellant’s prior felony conviction inadmissible” because his

testimony should not have been impeached with evidence of the conviction. In his

fourth issue, appellant argues that the trial court erred in “denying [his] motion to

suppress his prior felony conviction because it is invalid.”

The State has an affirmative duty to disclose evidence favorable and material

to a defendant’s guilt or punishment under the due process clause of the Fourteenth

20
Amendment. See Brady v. Maryland, 373 U.S. 83, 87–88, 83 S. Ct. 1194, 1196–

97 (1963). A defendant is entitled to a new trial if (1) the State suppresses

evidence, (2) the evidence is favorable to the accused, and (3) the evidence creates

a probability sufficient to undermine the confidence in the outcome of the

proceeding, i.e., the evidence is material. Harm v. State, 183 S.W.3d 403, 406

(Tex. Crim. App. 2006). In regard to the second prong, “[f]avorable evidence is

any evidence that, if disclosed and used effectively, may make a difference

between conviction and acquittal and includes both exculpatory and impeachment

evidence.” Id. at 408. “Exculpatory evidence may justify, excuse, or clear the

defendant from fault, while impeachment evidence is that which disputes or

contradicts other evidence.” Id. “Incorporated into the third prong, materiality, is

a requirement that [the] defendant must be prejudiced by the State’s failure to

disclose the favorable evidence.” Id. at 406.

At trial, the State introduced into evidence appellant’s 2001 conviction,

entered after a guilty plea, for felony possession of more than four grams and less

than 400 grams of “MDMA,” also known as “ecstasy.” Appellant moved to

suppress evidence of the conviction, arguing that it was invalid because “the

offense report from that case reflects that the quantity of the substance was

weighed by the police without packaging as 2.6 grams,” rendering him actually

innocent of the second-degree felony offense of possession of more than four, but

21
less than 400 grams of MDMA. Appellant also argued that his guilty plea was

involuntary because “if [his] counsel had advised him that the offense report

reflected that the weight of the substance was 2.6 grams, [he] would not have pled

guilty.” The trial court denied his motion to suppress.

Appellant’s conviction of the felony offense of possession of MDMA was

also alleged in an enhancement paragraph in the instant cases. However, before

the punishment phase of trial, the State noted that it did some research to try to

determine the actual weight of the narcotics because, in the offense report, “the

drugs allegedly weighed 2.6 grams.” The State obtained a copy of the official lab

report, which did not list a weight for the narcotics. Also, Derek Sanders, a

chemist at the Pasadena Police Department crime lab, informed the State that “the

weight of 3.7 grams of Ecstasy was found in a worksheet that belonged to the

chemist who’s no longer employed there.” He explained that he could not “swear

under oath that that is the accurate weight” and did not know “why that weight did

not make it into the official document.” The State ultimately abandoned the

enhancement paragraph but submitted the lab report into evidence “if [appellant]

want[s] relief further down the road.” Appellant then moved for a mistrial, arguing

that, pursuant to Brady, the State was required to produce any “information to

support [his] assertion that if [he] possessed Ecstasy, it was less than four grams,”

but it failed to produce anything until the punishment phase of trial.

22
 The trial court conducted an evidentiary hearing on appellant’s motion for

mistrial in which the prosecutor, Maritza Antu, testified that she did not recognize

the discrepancy until appellant filed a motion to quash the enhancement paragraph

before trial. She noted that the offense report included a weight of MDMA at 5.1

grams. However, Antu stated that she did not call the crime lab to clarify the

weight because appellant had pleaded guilty to having possessed more than four

grams of MDMA and she “couldn’t go based on what an offense report said

versus” the judgment and mandate. She explained that because the trial court had

asked whether she had possession of the lab report, she then felt compelled to call

the crime lab to procure one. At that time, Sanders sent her the official lab report

that did not list a weight of the MDMA. Antu also noted that when Sanders told

her the weight recorded on the worksheet, he explained that the weight was not

official and “he could not testify under oath that that’s what the weight actually

was.” The trial court denied appellant’s motion for a mistrial.

Appellant asserts that the State “suppressed evidence from the crime lab that

would have shown that [his] prior felony conviction was invalid because he was

actually innocent of possessing more than four grams of MDMA.” The evidence

introduced in the mistrial hearing consisted of the lab report, which does not note

the weight of the MDMA, and the lab “worksheet,” which indicates that that the

MDMA weighed about 3.7 grams. However, Sanders testified that the worksheet

23
indicated that the MDMA was tested on April 3 and 4 of 2001, and appellant

pleaded guilty to the offense approximately two weeks earlier, on March 19, 2001.

Sanders also explained that, without personal knowledge, he could not alter the lab

report to reflect a weight of 3.7 grams. He noted that the only way he could testify

to the actual weight of the MDMA was to retest it himself.

And, even assuming that appellant’s assertion that the lab worksheet accurately

indicates the weight of the MDMA as 3.7 grams, we note that possession of

MDMA weighing more than one gram but less than four grams is still a third-

degree felony offense, as opposed to a second-degree felony offense. See TEX.

HEALTH & SAFETY CODE ANN. § 481.103(a)(1) (Vernon Supp. 2012); id.

§ 481.116(c) (Vernon 2010). Thus, even assuming some uncertainty regarding

appellant’s conviction for possession of MDMA, we cannot conclude that the

evidence presented at the mistrial hearing demonstrates a probability sufficient to

undermine the confidence in the outcome of the proceeding. See Harm, 183

S.W.3d at 406 (noting requirement that defendant must be prejudiced by State’s

failure to disclose evidence).

Furthermore, we note that the evidence adduced at the hearing would not

render appellant’s conviction for possession of MDMA “invalid” or “void.” A

prior conviction which is void cannot be used for the purpose of enhancing

punishment or impeachment. Wood v. State, 478 S.W.2d 513, 515 (Tex. Crim.

24
App. 1972). However, a judgment is void only in very rare situations, usually due

to the trial court’s lack of jurisdiction. Nix v. State, 65 S.W.3d 664, 668 (Tex.

Crim. App. 2001). The very nearly exclusive list of situations in which the

judgment of conviction is void are those in which: (1) the document purporting to

be a charging instrument does not satisfy the constitutional requisites of a charging

instrument, and, thus, the trial court has no jurisdiction over the defendant; (2) the

trial court lacks subject-matter jurisdiction over the offense charged, such as when

a misdemeanor involving official misconduct is tried in a county court at law; (3)

the record reflects that there is no evidence to support the conviction; or (4) an

indigent defendant is required to face criminal trial proceedings without appointed

counsel, when such has not been waived. Id. Moreover, for a judgment to be void,

the record must leave no question about the existence of the fundamental defect.

Id. “If the record is incomplete, and the missing portion could conceivably show

that the defect does not in fact exist, then the judgment is not void, even though the

available portions of the record tend to support the existence of the defect.” Id. at

668–69.

From this record, we cannot conclude that there is no evidence to support the

conviction or agree with appellant that the evidence proved that he was actually

innocent of possessing more than four grams of MDMA. Thus, even assuming that

the State suppressed any evidence in this case, we cannot conclude that the

25
evidence would have rendered appellant’s prior felony conviction inadmissible on

the grounds that it was invalid, void, or inadmissible for impeachment.

Accordingly, we hold that any alleged suppression of evidence regarding

appellant’s prior conviction for possession of MDMA was immaterial and the trial

court did not abuse its discretion in denying appellant’s motion for mistrial or

motion to suppress the prior conviction.

We overrule appellant’s second, third, and fourth issues.4

Admission and Suppression of Evidence

In his fifth, sixth, ninth, tenth, eleventh, twelfth, and thirteenth issues,

appellant argues that the trial court erred in admitting certain evidence because it

improperly “undermined the credibility of appellant and Davies and bolstered the

credibility of the police officers and Russell.” In his seventh and eighth issues,

appellant argues that the trial court erred in admitting the testimony of Davies and

her written statement because the State called her “for the primary purpose of

impeaching her” and her written statement was made involuntarily. In his

fourteenth, fifteenth, and sixteenth issues, appellant argues that the trial court erred

4
Appellant filed a motion requesting that this Court order the district clerk to unseal
certain documents for his review in support of his Brady arguments. On August
16, 2011, we denied the motion but indicated we would conduct our own in
camera review of the documents as part of this appeal. After conducting our own
review, we conclude that they contain no Brady information. See Reece v. State,
878 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (conducting
its own review of sealed documents in appeal where defendant argued that sealed
documents contained Brady material).
26
in excluding certain evidence because it would have properly “enhanced

appellant’s credibility and diminished the police officers’ credibility.”

Standard of Review

We review a trial court’s evidentiary rulings for an abuse of discretion.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). A trial court

does not abuse its discretion if its ruling “was at least within the zone of reasonable

disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991).

Extraneous Matters Concerning Appellant

In his fifth issue, appellant argues that the trial court erred in admitting into

evidence his prior felony conviction for possession of MDMA because it had “little

impeachment value” and was “too prejudicial for admission.”

Evidence of a witness’s prior conviction shall be admitted for purposes of

impeachment if the crime was a felony or a crime of moral turpitude and the court

determines that the probative value of the evidence outweighs its prejudicial effect.

TEX. R. EVID. 609(a). In Theus v. State, the Texas Court of Criminal Appeals set

out a non-exclusive list of factors courts should use to weigh the probative value of

a conviction against its prejudicial effect. 845 S.W.2d 874, 880 (Tex. Crim. App.

1992). The factors include (1) the impeachment value of the prior crime, (2) the

temporal proximity of the prior crime relative to the charged offense and the

27
witness’s subsequent history, (3) the similarity between the prior crime and the

charged offense, (4) the importance of the witness’s testimony, and (5) the

importance of the witness’s credibility. Id. The proponent seeking to introduce

evidence pursuant to rule 609 has the burden of demonstrating that the probative

value of a conviction outweighs its prejudicial effect. Id.

In regard to the impeachment value of prior offenses, we note that narcotics-

related crimes tend to have a lower impeachment value because they do not

involve deception, moral turpitude, or violence. See Denman v. State, 193 S.W.3d

129, 136 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (rejecting State’s

argument to hold delivery of cocaine to be crime of moral turpitude). Thus,

appellant’s prior conviction for possession of MDMA does not have high

impeachment value, and the first Theus factor weighs against admissibility.

In regard to the temporal proximity of prior offenses relative to a charged

offense, the law favors admission of prior offenses if they occurred recently and

the witness has demonstrated a pattern of running afoul of the law. See Theus, 845

S.W.2d at 881. Here, appellant was convicted of the felony offense of possession

of MDMA and the misdemeanor offenses of theft in 2001 and burglary of a motor

vehicle in 2003. Appellant’s prior felony conviction for possession of MDMA

occurred nine years before trial, and although his misdemeanor convictions did

indicate a propensity for “running afoul of the law,” the last of those convictions

28
occurred seven years before trial. Even if his criminal history indicated some

pattern of breaking the law, his crimes were committed far enough in the past to

mitigate their probative value. See Woodall v. State, 77 S.W.3d 388, 395–96 (Tex.

App.—Fort Worth 2002, pet. ref’d) (stating, although convictions showed

propensity for criminal behavior, convictions also had to be recent for third factor

to weigh in favor of admissibility). Thus, the second Theus factor weighs slightly

against admissibility.

In regard to the similarity between the prior offense and the instant offense,

we note that the elements of the offense of possession of MDMA are substantially

similar the elements of the offense of possession of cocaine. The similarity

between his prior felony offense and the offense of possession of cocaine militates

against admissibility. See Miller v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort

Worth 2006, pet. ref’d) (holding similarity between two offenses of possession of

controlled substance militated against admission of prior conviction); Fautner v.

State, No. 05-01-01297-CR, 2003 WL 21783349, at *3 (Tex. App.—Dallas Aug.

4, 2003, no pet.) (not designated for publication) (stating that prior convictions for

possession of cocaine were similar to charged offense of possession delivery of

cocaine). And the admission of his conviction for possession of MDMA was

likely prejudicial to his defense in regard to the offense of possession of cocaine.

29
See Rodriguez v. State, 129 S.W.3d 551, 560 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d).

In regard to the substance of appellant’s testimony and the importance of his

credibility, appellant testified at trial that he was unaware that the men who entered

his apartment were actually police officers, he believed them to be burglars, he did

not intend to shoot them but only to frighten them, he never heard the officers

announce their presence as police officers, and he did not possess the cocaine

found in his bedroom. He was the only witness who could testify as to his

knowledge of the presence of cocaine in his apartment and his belief that the police

officers were burglars. Thus, his credibility was critical. Therefore, we conclude

that the fourth and fifth Theus factors favor admission. See Davis v. State, 259

S.W.3d 778, 784 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). However,

because the first three Theus factors weigh against admission, we hold that the trial

court erred in admitting into evidence his prior felony conviction.

A violation of evidentiary rules that results in the erroneous admission of

evidence constitutes non-constitutional error. See TEX. R. APP. P. 44.2(b). Non-

constitutional error “that does not affect substantial rights must be disregarded.”

Id. A substantial right is affected when an error has a substantial and injurious

effect or influence in determining a jury’s verdict. King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997). Therefore, a criminal conviction should not be

30
overturned for non-constitutional error if an appellate court, upon examining the

record as a whole, has fair assurance that the error did not influence the jury, or

had but slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002).

In assessing the likelihood that the jury’s decision was adversely affected by the

error, we consider everything in the record, including any testimony or physical

evidence admitted for the jury’s consideration, the character of the alleged error,

and how it might be considered in connection with other evidence in the case.

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

In his testimony, appellant admitted to knowingly possessing, at the time the

officers executed the search warrant, “a lot” of hydrocodone, Xanax, and codeine

with the intent to deliver the narcotics. He also admitted to knowingly possessing

steroids for personal use and MDMA with the intent to deliver it. Appellant’s

ledger, which tracked various narcotics transactions was admitted into evidence,

and he further admitted to being a narcotics user and dealer since he was 17 or 18

years old. Thus, the prejudicial effect arising from the admission of appellant’s

prior conviction of felony possession of MDMA was mitigated by his own

testimony. We cannot conclude that the admission of his prior conviction had a

substantial or injurious effect or influence in determining the jury’s verdict.

Accordingly, we hold that the trial court’s error in the admission of appellant’s

prior conviction for possession of MDMA was harmless.

31
 We overrule appellant’s fifth issue.

In his eleventh issue, appellant complains that the trial court allowed the

State to ask him whether he had previously “knowingly disregarded the lawful

commands” of police officers “knowing that they were police officers.” Appellant

argues that because the testimony was not probative of any material fact in dispute,

it was more prejudicial than probative. See TEX. R. EVID. 401, 403. He asserts that

the State “wanted to introduce this testimony as character conformity evidence,

which is demonstrated by the manner in which it emphasized the testimony in

summation.” See TEX. R. EVID. 404(b).

Evidence that has any tendency to make the existence of “any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence” is relevant evidence. TEX. R. EVID. 401.

“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.” TEX. R. EVID. 403. The presumption is that relevant

evidence is more probative than prejudicial. Montgomery, 810 S.W.2d at 389.

Evidence of other crimes or bad acts is not admissible to prove the character

of a person in order to show that he acted in conformity therewith. TEX. R. EVID.

404(b); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). However,

this evidence may be admissible for other purposes, such as proof of motive,

32
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. TEX. R. EVID. 404(b). “Rebuttal of a defensive theory such as mistake

or accident is also one of the permissible purposes for which relevant evidence

may be admitted under rule 404(b).” Moses v. State, 105 S.W.3d at 622, 626 (Tex.

Crim. App. 2003).

Here, appellant testified that he pointed his shotgun at the police officers and

“cycled” it twice because he believed that they were burglars and, had he known

that they were police officers, he would not have done so. The State presented

conflicting evidence from Officers Scoggins and Rodriguez that prior to their entry

into appellant’s apartment, all of the police officers in the raid team shouted

“police.” As noted above, appellant’s credibility was a critical issue in the case,

and the State was entitled to rebut appellant’s assertion that had he known they

were police officers, he would not have pointed his firearm at them.

Although appellant asserts that the State offered the complained-of evidence

to prove that he knew that the complainants were police officers on this occasion,

the evidence, as the trial court explained, was relevant to show “even if he had

known that they were police officers, that he would not comply.” After the State

asked appellant about this, the trial court instructed the jury,

You may consider this answer of the witness for the limited purpose
of rebutting an inference that the defendant would comply with an
officer’s command had he known they were officers, if that does help
you. And you can consider it for no other purpose.
33
Thus, the trial court sought to mitigate any potential prejudicial effect of the

evidence by limiting it to the scenario where appellant disregarded commands

“knowing they were police officers.” Accordingly, we hold that the trial court did

not err in admitting evidence that appellant had previously, knowingly disregarded

the lawful commands of a police officer.

We overrule appellant’s eleventh issue.

In his twelfth issue, appellant argues that the trial court erred in “admitting

testimony of an unadjudicated extraneous offense suggesting that [he] was

involved in stealing codeine from pharmacies” because the testimony was

irrelevant. See TEX. R. EVID. 401, 404(b). Specifically, appellant complains of the

following exchange during Officer Rodriguez’s testimony,

[STATE]: In the drug world, how do dealers get their
hands on codeine?

[RODRIQUEZ]: A lot of places get burglarized—a lot of small
pharmacies or warehouses get burglarized and
it comes out on the black market that way.

Appellant objected to Rodriguez’s statement, and although the trial court overruled

his objection, it instructed the jury that “there is no evidence supporting that the

defendant in any manner broke into any kind of pharmacy.”

The line of questioning indicates that the State tried to establish generally

how codeine may be acquired for illegal distribution. Officer Rodriguez’s

34
testimony did not establish that appellant was a party to burglaries. And the trial

court’s limiting instruction clarified for the jury that Rodriguez’s statement did not

establish that appellant was a party to a burglary of a pharmacy. We hold that the

trial court did not err in admitting Rodriquez’s general explanation.

We overrule appellant’s twelfth issue.

In his thirteenth issue, appellant complains that the trial court erred in

admitting into evidence “the portion of the audio recording of [his] oral statements

that included his receipt” of legal warnings, “post-arrest silence, and invocation of

the right to counsel.”

Prior to trial, appellant filed a motion in limine seeking to, “in the event that

the State wants to elicit any statements made by [appellant] during that interview at

the hospital or if they want to actually play the recorded statement in its entirety,

. . . exclude or suppress any invocations of constitutional rights made by

[appellant].” The trial court denied the motion in limine.

At trial, Detective Selvera testified that when he spoke with appellant at a

hospital, he first read to him his legal rights. Appellant objected to “the State

eliciting the fact that he was Mirandized and invoked any of his federal

constitutional rights.” The State responded that it was “laying the foundation to

make [appellant’s recorded] statement admissible.” The trial court overruled the

objection and stated that as “long as it meets the statutory guidelines for

35
admissibility, then I’m going to allow it.” Selvera then testified that he read

appellant his “legal warnings,” at some point he had to “terminate the interview,”

appellant “initiate[d] a conversation” afterwards, appellant continued to ask

questions after termination of the interview, and appellant then voluntarily offered

a statement.

In regard to appellant’s recorded statement, we note that he only filed a

motion in limine, did not object to its admission into evidence at trial, and did not

object to it being played to the jury during the State’s closing argument. The

granting or denial of a motion in limine is only a preliminary ruling, and the

making of the motion does not preserve error in the admission of evidence; a

separate trial objection must be made at the time the evidence is offered for

admission. See Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003);

TEX. R. APP. P. 33.1(a). Accordingly, we hold that appellant has not preserved his

complaint regarding the admissibility of his recorded statement into evidence.

In support of his argument that Detective Selvera’s testimony was also

inadmissible, appellant relies on Kalisz v. State, 32 S.W.3d 718, 722–23 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d). In Kalisz, the Fourteenth Court of

Appeals held that a trial court erred in introducing a portion of a defendant’s

statement that contained “the questions regarding his right to counsel and

everything thereafter,” although “all the Miranda questions” and the defendant’s

36
answers to them preceding the invocation were admissible. Id. at 722–23. The

court relied in part on Hardie v. State, wherein the Texas Court of Criminal

Appeals held that a defendant’s invocation of the federal right to counsel during a

custodial interrogation is inadmissible as evidence of guilt. Kalisz, 32 S.W.3d at

723 (citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991)); see

also Stepp v. State, No. 14-05-00635-CR, 2007 WL 608977, at *6 (Tex. App.—

Houston [14th Dist.] Mar. 1, 2007, pet. ref’d) (mem. op.) (not designated for

publication).

Here, Detective Selvera testified only that after he began reading appellant

his legal rights, he was forced to “terminate the interview.” Selvera did not testify

that appellant invoked his right to silence or his federal right to counsel. Rather,

appellant, in his direct testimony, stated that, “I told him that I wanted to talk to my

lawyer ‘cause I know I didn’t try to kill no officer.” Furthermore, we note that any

statement by Selvera that he had to “terminate the interview” was not offered as

substantive evidence of guilt. Rather, his testimony merely explained the

circumstances surrounding appellant’s statement offered after the termination of

the interview, Selvera’s recording of it, and its admissibility. Accordingly, we

hold that the trial court did not err in admitting Selvera’s testimony that he read

appellant his legal rights, had to terminate the interview, and then received a

voluntary statement from appellant after he had initially terminated the interview.

37
 We overrule appellant’s thirteenth issue.

Extraneous Matters Concerning the Police Officers

In his sixth issue, appellant argues that the trial court erred in “admitting

testimony that a grand jury no-billed the complainants and that police investigators

concluded that they were justified in shooting appellant” because the evidence was

irrelevant and more prejudicial than probative. See TEX. R. EVID. 401, 403.

During his testimony, Lieutenant Gafford, a supervisor of Officers

Rodriguez and Scoggins and a member of the raid team, explained, over

appellant’s running objection, that homicide investigators and the Internal Affairs

Division had determined that Rodriguez and Scoggins were both “justified” in

shooting appellant. Gafford further noted that a grand jury “no-billed” Scoggins

and Rodriguez and determined that their shooting of appellant was justified. In

regard to appellant’s objection, the State argued that appellant had opened the door

to this testimony because, during his opening statement and cross-examination of

Gafford, appellant was “basically insinuating the officers covered up their tracks.”

During his opening statement, appellant’s counsel asserted,

They take appellant away to the hospital, not sure if he’s going to live
or die. And then the wheels go into motion of how to make this look
clean for the police.

Internal Affairs officers show up. Homicide detectives show up. . . .
And you will hear how efforts were made to make sure that all the
stories were consistent.

38
During his cross-examination of Gafford, appellant’s counsel asked if Gafford was

required to notify HPD Internal Affairs or the Harris County District Attorney’s

office to investigate any allegations that Davies’ statement was coerced, if Davies

was threatened with potential prosecution for narcotics offenses, or if it was

suggested that she could be charged with possession of narcotics. Counsel also

asked Gafford if there is “always going to be an investigation” when a police

officer shoots a civilian and whether the police officer could be liable for

administrative or civil penalties.

Here, appellant, in his opening statement, expressly referenced the

investigations by HPD Internal Affairs and Homicide detectives, asserting that

“efforts were made to make sure that all the stories were consistent.” Thus,

Lieutenant Gafford’s testimony was relevant to rebut this defensive theory and

explain the standard procedures regarding HPD Internal Affairs and Homicide

investigations upon the shooting of a civilian by a police officer. And because

appellant specifically asserted that, in this case, the investigations were part of

collusion to ensure that all of the officers’ stories were “consistent,” the State was

entitled to introduce evidence that a grand jury had “no-billed” Officers Scoggins

and Rodriguez. Furthermore, we cannot conclude that this evidence was “more

prejudicial than probative.” Accordingly, we hold that the trial court did not err in

39
admitting testimony that a grand jury “no-billed” Officers Scoggins and Rodriguez

regarding the shooting of appellant and HPD’s investigation of the shooting.

We overrule appellant’s sixth issue.

In his tenth issue, appellant argues that the trial court erred in “admitting

testimony that [Officer] Scoggins had not previously fired a weapon in the line of

duty” because it was irrelevant.

Officer Scoggins testified that when he shot appellant, he did not know

exactly whether appellant was “pulling the trigger, trying to pull the pump or

whatever” but there was “some type of . . . backward movement with the weapon.”

So, Scoggins “assumed [appellant] was trying to shoot” him. Scoggins then

explained that he had “never fired [his] weapon on duty” before. Appellant

objected, and the trial court overruled the objection, stating, “You can testify as—if

it goes to explain your actions on this particular event.” When the State asked

Scoggins why it was “important” that he had never discharged his firearm on duty

before, Scoggins replied,

I knew I was fixing to get shot and there’s no question. There wasn’t
a whole lot of shoot, don’t shoot. It was shoot as fast as you can. And
it’s the first time I’d never experienced that, shoot now, shoot, shoot,
shoot, you know, shoot as fast as you can. So, I had never—over the
years many people with weapons and you don’t—I have never had
that experience. So, it was a—it was a response to an immediate
threat that I had to shoot.

40
 A person commits the offense of aggravated assault if the person

“intentionally or knowingly threatens another with imminent bodily injury.” TEX.

PENAL CODE ANN. § 22.01(a)(2) (Vernon 2011). Thus, from the context of the

questioning, it is apparent that Officer Scoggins’s testimony was intended to

explain to the jury that the threat from appellant was imminent, and the fact that he

had never discharged his firearm before tended to prove this. Accordingly, we

hold that the trial court did not err in admitting evidence that Scoggins had not

discharged his firearm “on duty” before shooting appellant.

We overrule appellant’s tenth issue.

In his fourteenth issue, appellant complains that the trial court erred in

“excluding testimony that [Officer] Scoggins was previously suspended by HPD

because he tried to cover-up an officer-involved shooting and lied about it to

investigators.”

As noted above, evidence of other crimes is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. TEX.

R. EVID. 404(b). Furthermore, “[s]pecific instances of the conduct of a witness, for

the purpose of attacking or supporting the witness’s credibility, other than the

conviction of a crime as provided in rule 609, may not be inquired into on cross-

examination of the witness nor proved by extrinsic evidence.” TEX. R. EVID.

608(b). Thus, prior unrelated acts of untruthfulness are generally inadmissible

41
under rule 608(b). See, e.g., Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim.

App. 2009) (“A witness’s general character for truthfulness or credibility may not

be attacked by cross-examining him (or offering extrinsic evidence) concerning

specific prior instances of untruthfulness.”).

On cross-examination, Officer Scoggins testified that he did not tell Officer

Rodriguez “to clean and reload his weapon before another law enforcement officer

arrived” at the scene and he would never tell an officer to clean and reload his

weapon before Internal Affairs investigators arrived after a shooting. Appellant

then asked if Scoggins had ever “lied about what happened during a police

shooting to protect another officer.” The trial court then sustained the State’s

objection to the question.

During appellant’s bill of exception, made outside the presence of the jury,

Scoggins admitted that he had previously been suspended by HPD for five days for

“failing to comply with the rules regarding interfering with the investigation of

cases and truthfulness.” He had been found “to have conspired to cover up the

discharge of firearms by contacting another officer and instructing him to clean

and reload his weapon before submitting it to [I]nternal [A]ffairs personnel.”

Scoggins explained that during an “off-duty incident” his partner was “intoxicated”

and “accused of firing a weapon.” Scoggins admitted that he took his partner

42
home, but he denied telling him to clean or reload his weapon, although another

officer had accused Scoggins of doing so.

In support of his argument that the exclusion of this testimony denied him

his “constitutional right to present a defense,” appellant relies heavily on Cloud v.

State, 567 S.W.2d 801 (Tex. Crim. App. 1978). In Cloud, the defendant attempted

to impeach a police officer who allegedly had filed a false report about another

officer in a vice undercover operation. Id. at 802. The Texas Court of Criminal

Appeals explained that “[g]reat latitude should be allowed to show a witness’ bias

or motive to falsify his testimony,” but it concluded that the trial court acted within

its discretion in excluding the false report because the officer had filed a complaint

against the defendant “prior to the events which led to the officer’s suspension.”

Id. at 802–03. Thus, the court ultimately held that the officer’s prior misconduct

was properly excluded because it did not tend to show bias or a motive to falsify

testimony in the defendant’s case. Id. at 803; see also McMillon v. State, 294

S.W.3d 198, 203 (Tex. App.—Texarkana 2009, no pet.) (holding that trial court

did not err in excluding evidence that police officer had written “phantom” traffic

tickets because there was no evidence it would establish bias in that particular

case).

Likewise, here, there is no indication that Officer Scoggins’ prior suspension

for “failing to comply with the rules regarding interfering with the investigation of

43
cases and truthfulness” had any tendency to demonstrate a bias against appellant or

a motive to falsify his testimony in this case. At the time of trial, Scoggins was no

longer under suspension, and there was no indication that he was on probation for

his suspension. And any such specific impeachment testimony is barred by rules

404(b) and 608(b). We hold that the trial court did not err in excluding the

evidence that HPD had previously suspended Scoggins. See, e.g., Hammer, 296

S.W.3d at 568–69 (holding testimony that sexual assault victim had made several

previous accusations was admissible only so far as it was “relevant to [victim’s]

animus toward [the defendant] and her desire to get out of his house”); Cloud, 567

S.W.2d at 803.

We overrule appellant’s fourteenth issue.

In his fifteenth issue, appellant argues that the trial court erred in “excluding

testimony that a member of the police raid team is married to a senior prosecutor

who supervised the trial court prosecutors” because it “barred appellant from

impeaching witnesses and presenting a defense.”

During his cross-examination of both Lieutenant Gafford and Officer

Scoggins, appellant asked if Officer Bradley, a member of the raid team, was

“married to a prosecutor.” And the trial court sustained the State’s objections to

the questions. In his bill of exception, appellant stated that Bradley’s wife “was

the division chief who supervised the prosecutors assigned to the 228 th District

44
Court both in April of 2007 at the time of the incident” and at the time of trial. The

State, however, clarified that at the time of trial, neither of the prosecutors on the

case were supervised by Bradley’s wife.

The proponent of evidence regarding bias must show that the evidence is

relevant. Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004). 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. Id. Here, Officer Bradley did not testify, and he was in no

way implicated in the shooting of appellant. In fact, appellant testified that

Bradley had “saved his life” by administering first aid after he was shot. There

were no allegations or demonstrations of misconduct by Officer Bradley at trial.

Accordingly, we hold that the trial court did not err in excluding evidence that

Officer Bradley was married to a senior prosecutor at the time of the incident and

at the time of trial.

We overrule appellant’s fifteenth issue.

Hearsay Statements

In his sixteenth issue, appellant argues that the trial court erred in “excluding

testimony that would have impeached, and corrected the false impression left by,

Tamara Drouillard’s alleged hearsay statements” because the State “created the

45
false impression through [witnesses Jack] Scott that Drouillard heard what

happened and told the police that she heard men’s voices.”

Scott testified that on the morning that the search warrant was executed, he

was in the apartment of his girlfriend, Tamara Drouillard, in the same complex as

appellant’s apartment and did not hear any “banging,” “yelling,” or “gunshots” that

morning. On cross-examination, Scott explained that he was a “deep sleeper” and

Drouillard had awakened him, “said there’s something going on,” and heard what

“sounded like a washing machine being thrown down a flight of stairs.” However,

Scott explained that he could not recall whether Drouillard had mentioned that she

had heard “yelling.” Later, during Detective Selvera’s testimony, appellant, on

cross-examination, attempted to ask him questions about his interviews of Scott

and Drouillard. Specifically, appellant asserted that “the State elicited from Mr.

Scott what Ms. Drouillard said during the conversation, but did not elicit the fact

that she never heard anyone yell police.” The trial court sustained the State’s

objection to the question as calling for hearsay. Appellant made a bill of

exception, offering Drouillard’s recorded statement that she was “dead asleep,”

heard “a big crash and yelling,” and did not hear anyone say “police.”

A statement is hearsay if it is “other than the one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” TEX. R. EVID. 801(d). Generally, hearsay is not admissible

46
except as provided by statute or the rules of evidence. TEX. R. EVID. 802.

Appellant argues that the testimony was nevertheless admissible under the rule of

“optional completeness,” which provides that “[w]hen a part of an act, declaration,

conversation, writing or recorded statement is given in evidence by one party, . . .

any other act, declaration, writing, or recorded statement which is necessary to

make it fully understood or to explain the same may also be given in evidence.”

See TEX. R. EVID. 107.

Although appellant asserts that the State “created the false impression that

Drouillard heard what happened and told the police that she heard men’s voices,”

Scott only testified that he could not recall whether anyone had yelled “police” and

Drouillard had heard men’s voices, which was substantiated by her recorded

statement. Thus, we cannot agree with appellant that Scott’s testimony created a

false impression or was “substantially incorrect.” Accordingly, we hold that the

trial court did not err in excluding Detective Selvera’s testimony about his

interviews of Scott and Drouillard.

We overrule appellant’s fifteenth issue.

Davies’s Testimony

In his seventh issue, appellant argues that the trial court erred in “permitting

the State to call Jessica Davies and impeach her with otherwise inadmissible

47
hearsay statements” because “it called her for the primary purpose of impeaching

her.”

The credibility of any witness may be challenged by any party, including the

witness’s proponent. TEX. R. EVID. 607. The right to impeach one’s own witness,

however, does not permit a party to call a witness, whom that party knows will

testify contrary to a prior statement, as a mere subterfuge to provide a basis for

otherwise inadmissible evidence. Brasher v. State, 139 S.W.3d 369, 371–72 (Tex.

App.—San Antonio 2004, pet. ref’d). To the extent the State calls a witness whom

it anticipates will testify contrary to a prior statement, there is a risk that the

testimony is offered as a “mere subterfuge.” See Hughes v. State, 4 S.W.3d 1, 5

n.9 (Tex. Crim. App. 1999). To determine whether testimony is being offered for

such a purpose, a court should consider whether the impeachment evidence is more

prejudicial than probative, the State was surprised by the witness’s recantation, and

the witness provided any favorable testimony. See id. at 5.

When the State first announced its intention to call Davies, it stated that it

was going to “impeach her testimony with Ms. Russell, who was also in the car

with her.” After Davies testified that she did not hear anyone yell, “police” when

the officers executed the search warrant, the State attempted to impeach her with

her prior written statement. Appellant objected that “the State is not permitted to

call a witness for the sole purpose of impeaching that witness.” The State asserted

48
that Davies’ testimony was also relevant to other substantive issues, such as “the

location that [appellant] actually lived in this unit,” appellant’s status a dealer in

narcotics, and his possession of firearms in his apartment. The trial court then

allowed the State to impeach Davies’s testimony with her prior sworn statement

about whether she had heard anyone yell, “police.” Later, the State further

impeached Davies’ statement with Russell’s testimony that Davies had told her

that she knew that the complainants were police officers when they entered the

apartment and appellant had tried to shoot the officers.

In Hughes, the State called the defendant’s wife to testify about statements

that she had made to Child Protective Services (“CPS”) that the defendant had

sexually abused her child, and she denied making the statements to two CPS

caseworkers. Id. at 3. The State then called both caseworkers to impeach the

wife’s testimony, and they testified that the defendant’s wife had told them that he

had admitted to sexually abusing her child. Id. The court rejected the notion that

the State’s awareness “that its witness will testify unfavorably” automatically

denies it the opportunity to impeach a witness; it held that “the State’s knowledge

that its own witness will testify unfavorably is a factor the trial court must consider

when determining whether the evidence is admissible under Rule 403.” Id. at 5.

The court explained that rule 403 would bar the admission of evidence where “the

State profits from the witness’ testimony only if the jury misuses the evidence by

49
considering it for its truth.” Id. The court concluded that the trial court should not

have allowed the State to impeach the defendant’s wife because the State knew that

the defendant’s wife would testify unfavorably, and the State “elicited no favorable

testimony from [the wife].” Id. at 7.

Here, at the hearing on appellant’s motion for new trial, the State explained

that it wanted to contrast Davies’s testimony that she complied with the officers’

orders to stay still and raise her hands in the air with appellant’s failure to

cooperate with the officers’ commands. The State also explained that it wanted to

call Davies to the stand to rebut appellant’s theory that the State “was covering up

for crooked cops” by arguing that it had “tried to keep [Davies’s recantation]” from

the jury. It asserted that it needed Davies’s testimony “to testify about what

happened from the second those police officers knocked on the door,” explaining

that the jury “may not want to hear the words from a police officer.” The State

asserted that its strategy for calling Davies was “to testify to the links to the drugs,

to the guns in the house, that he was an occupant, that he was actually there that

day. . . . [And], if she was going to lie about certain things or—obviously we had

to have impeachment material available.”

Thus, although the State knew that Davies would testify unfavorably

regarding whether she had heard the officers announce their presence as “police”

or recognized the complainants as police officers, Davies, as the only civilian

50
witness to the events other than appellant, also provided substantial evidence

regarding appellant’s links to narcotics, firearms, and the sequence of events once

the complainants entered the apartment. And the substance of the impeachment

evidence, i.e., that Davies had, in fact, heard someone yell, “police,” was also

found in the testimony of Russell and the officers. See Kelly v. State, 60 S.W.3d

299, 302 (Tex. App.—Dallas 2001, no pet.) (noting that because several other

witnesses testified to the substance of hearsay testimony used to impeach witness,

there existed less risk testimony “would be misused by the jury”). Furthermore,

we note that the trial court, both during the impeachment of Davies with her

written statement and Russell’s testimony regarding her conversation with Davies,

instructed the jury that the evidence was to be used only for impeachment

purposes. Accordingly, we hold that the trial court did not err in allowing the State

to call Davies as a witness and impeach her testimony that she did not hear anyone

yell, “police.” Polston v. State, No. 03-10-00379-CR, 2011 WL 3435389, at *5

(Tex. App.—Austin Aug. 5, 2011, pet. ref’d) (holding that because State was able

to elicit some favorable testimony, “although limited,” and witness was one of two

complainants in the case, the trial court did not abuse its discretion in admitting the

impeachment testimony).

We overrule appellant’s seventh issue.

51
 In his eighth issue, appellant argues that the trial court erred in denying his

motion to suppress Davies’s written statement because it was given involuntarily

and “coerced by threats from the police that she could be prosecuted for felony

drug possession” if she did not testify as they indicated. See TEX. CODE CRIM.

PROC. ANN. arts. 38.21, 38.22 (Vernon 2005).

Appellant objected to the admission of Davies’s statement, citing articles

38.21 and 38.22. A “statement of an accused may be used in evidence against him

if it appears that the same was freely and voluntarily made without compulsion or

persuasion, under the rules hereafter prescribed.” Id. art. 38.21 (emphasis added).

And no “written statement made by an accused as a result of interrogation is

admissible as evidence against him” unless it is shown that the accused was read

and voluntarily waived his legal rights. Id. art. 38.22 §2(a) (emphasis added).

An accused does not have standing to complain about evidence that is

illegally obtained unless it was done so in violation of his own rights. See Chavez

v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000). For example, in the context

of searches and seizures, a defendant does not have standing to complain of the

illegal search of another’s residence. See Janecka v. State, 739 S.W.2d 813, 830

(Tex. Crim. App. 1987). Similarly, a defendant does not have standing to attack

the constitutionality of a co-defendant’s statement. See Neal v. State, 256 S.W.3d

264, 284 (Tex. Crim. App. 2008) (holding defendant had no standing to raise

52
constitutional or statutory challenge as to legality of co-defendant’s statement);

Pugh v. State, No. 07-05-0187-CR, 2007 WL 686639, at *3 (Tex. App.—Amarillo

March 22, 2007, pet. ref’d). Accordingly, we hold that the trial court did not err in

denying appellant’s motion to suppress Davies’s statement.

We overrule appellant’s eighth issue.

Russell’s Testimony

In his ninth issue, appellant complains that the trial court erred in “admitting

improper opinion testimony” from Russell that “Davies was credible when she

allegedly said that she knew the men were police and that appellant tried to shoot

them.”

Russell testified that Davies told her that she knew the complainants were

police officers and appellant tried to shoot them. When asked what Davies

specifically told her, Russell replied,

She said yes. And I—and I said he tried to shoot them. And she said
yes. And then I thought, that’s a very nice honest girl. You know—
that’s a sweet honest girl. And I thought that was nice.

The State then asked if the answer surprised her, and Russell replied, “And she was

just so honest. So sweet and honest, you know.” Appellant then objected,

asserting that Russell’s testimony amounted to an “improper opinion” that “the

other person was honest when they made a certain statement.” The trial court

overruled the objection.

53
 As a prerequisite to presenting a complaint for appellate review, the record

must show that a timely objection was made to the trial court. TEX. R. APP. P.

33.1(a). An objection should be made as soon as the ground for objection becomes

apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). If a

defendant fails to object until after an objectionable question has been asked and

answered, and he can show no legitimate reason to justify the delay, his objection

is untimely and error is waived. Id.

Here, appellant did not object to Russell’s statement that Davies appeared

“honest” during their prior conversation until she had expressed the belief twice.

Accordingly, we hold that appellant has waived any error regarding this testimony.

We overrule appellant’s ninth issue.

Improper Jury Argument

In his seventeenth and eighteenth issues, appellant argues that the trial court

erred in permitting the State to argue during closing arguments its “opinion that

Jeanette Russell was the most credible witness she had ever called” and “that

appellant did not want Jessica Davies to testify” because the State communicated

to the jury that it should treat Russell’s testimony as more credible than any other

witnesses and injected matters not in the record.

Proper jury argument is generally limited to (1) summation of the evidence

presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers

54
to opposing counsel’s argument, and (4) pleas for law enforcement. Wesbrook, 29

S.W.3d at 115. The trial court has broad discretion in controlling the scope of

closing argument. Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso

2004, no pet.). The State is afforded wide latitude in its jury arguments and may

draw all reasonable, fair, and legitimate inferences from the evidence. Allridge v.

State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988).

Appellant first complains of the following comment made by the State

during closing argument,

And then you have Jeanette Russell’s testimony. Probably the most
honest, scary—scary, honest human being I’ve ever put on the witness
stand. No holds barred—

Appellant objected to the statement as “improper opinion from the prosecutor as to

the credibility of a witness.” The trial court overruled appellant’s objection, and

the State continued, “No holds barred, she told you the whole story. And so, you

have to decide which side you’re going to lay with.”

The State’s argument was made in response to appellant’s closing argument

challenging Russell’s credibility. For example, at one point, appellant argued that

police officers “[got] together with Ms. Russell” to fabricate her testimony. And a

substantial portion of appellant’s closing argument was spent attacking Russell’s

credibility and suggesting that she conspired with the officers in devising her

testimony. Because the State’s argument was directed toward rebutting appellant’s

55
assertion that Russell had fabricated her testimony in collusion with law

enforcement, it constituted permissible jury argument. See Wesbrook, 29 S.W.3d

at 115; Kibble v. State, 340 S.W.3d 14, 23 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d).

Appellant next complains that the State argued that he “wanted to keep

[Davies] off that witness stand because it hurt [his] entire case.” Appellant

objected to the statement as “outside the record” and “improper argument,” and the

trial court overruled the objection. Again, the statement was made in response to

appellant’s argument referencing that the State had compelled Davies to testify.

For example, at one point, appellant argued that Davies’s testimony was truthful

because she was compelled to testify under “the threat of prosecution for perjury.”

In addition, appellant testified that he did not want Davies to testify because she

did not “deserve to get in any trouble” and the State was “threatening her with

perjury.” Thus, the State’s comment was made in answer to appellant’s argument

that because the State had compelled Davies to testify, and she testified

unfavorably to the State, she was being truthful.

We hold the trial court did not err in overruling appellant’s objections to the

complained-of closing arguments made by the State.

We overrule appellant’s seventeenth and eighteenth issues.

56
 Jury Charge and Jury Instructions

In his nineteenth issue, appellant argues that the trial court erred in not

instructing the jury that it could not consider “evidence that was admitted for

limited purposes as substantive evidence of guilt” because the trial court’s

instruction that the jury could consider the evidence “for no other purpose than

impeachment” was inadequate. In his twentieth issue, appellant argues that the

trial court erred in instructing the jury that a “defendant is presumed to have known

the person assaulted was a public servant if the person was wearing a distinctive

uniform or badge indicating the person’s employment as a public servant” because

the issue was not raised by the evidence. See TEX. PENAL CODE ANN. § 22.02(c)

(Vernon 2011). In his twenty-first issue, appellant argues that the trial court erred

in instructing the jury on the law of self-defense and defense of a third person

because the evidence did not raise the issue of deadly force. See TEX. PENAL CODE

ANN. § 9.01(3) (Vernon 2011). In his twenty-second issue, appellant argues that

the trial court erred in not instructing the jury “on the voluntariness of Jessica

Davies’ written statement” because it was “a statement made by an accused.” See

TEX. CODE CRIM. PROC. art. 38.22.

Standard of Review

Appellate review of error in a jury charge or instruction to the jury involves

a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).

57
Initially, we must determine whether error occurred. If so, we must then evaluate

whether sufficient harm resulted from the error to require reversal. Id. at 731–32.

Error in the charge, if timely objected to in the trial court, requires reversal if the

error was “calculated to injure the rights of [the] defendant,” which means no more

than that there must be some harm to the accused from the error. TEX. CODE CRIM.

PROC. ANN. art. 36.19 (Vernon 2006); Abdnor, 871 S.W.2d at 732. In other words,

properly preserved error will require reversal as long as the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In making this

determination, “the actual degree of harm must be assayed in light of the entire

jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole.” Id.

Limiting Instructions

In his nineteenth issue, appellant complains of the trial court’s limiting

instructions pertaining to the admission into evidence of Davies’s written

statement, Russell’s testimony regarding her conversation with Davies, and

appellant’s prior convictions. In each instance, the trial court instructed the jury

that the evidence could be used to pass on the witnesses’ credibility “but for no

other purpose.” Appellant requested that the trial court further instruct the jury that

58
“it may not consider the evidence as substantive evidence of guilt.” The trial court

declined to so further instruct the jury.

“When evidence which is admissible as to one party or for one purpose but

not admissible as to another party or for another purpose is admitted, the court,

upon request, shall restrict the evidence to its proper scope and instruct the jury

accordingly.” TEX. R. EVID. 105(a). Thus, when evidence is admitted for a limited

purpose, the trial court must, upon request, provide such a limiting instruction. Id.

The failure to provide the instruction may improperly result in the jury forming a

negative inference about the defendant. Jackson v. State, 992 S.W.2d 469, 477

(Tex. Crim. App. 1999).

Appellant relies on several cases in which courts have referenced an

instruction to jurors not to consider limited-purpose evidence “as substantive

evidence of guilt.” See Hernandez v. State, 219 S.W.3d 6, 13 (Tex. App.—San

Antonio 2006), aff’d, 273 S.W.3d 685 (Tex. Crim. App. 2008); Ramirez v. State,

987 S.W.2d 938, 946 (Tex. App.—Austin 1999, no pet.); Owens v. State, 916

S.W.2d 713, 718–19 (Tex. App.—Waco 1996, no pet.). However, although these

cases refer to instructions given by trial courts to juries to not consider limited-

purpose evidence as substantive evidence of guilt or suggest that trial counsel

should have requested such instructions, none of the cases discuss a trial court’s

duty to so instruct a jury.

59
 In Walker v. State, the Second Court of Appeals addressed the issue of

whether the trial court erred in articulating its limiting instructions to the jury. 300

S.W.3d 836, 850–54 (Tex. App.—Fort Worth 2009, pet. ref’d). In its charge, the

trial court instructed the jury that inconsistent prior statements used for

impeachment “may be considered by you in determining, if it does so, the

credibility and weight to be given the testimony of the witness . . . and for no other

reason.” Id. at 850 (emphasis in original). The court concluded that the

instruction was sufficient, holding that the trial court “was not required to further

instruct the jury that it could not consider the impeachment testimony for purposes

of determining guilt-innocence because that idea is implicit in the court’s

instruction that the impeachment testimony was to be used to determine credibility

and ‘for no other reason.’” Id. at 851 (emphasis in original). In contrast, the court

found error in the trial court’s limiting instruction, made during trial, that

impeachment testimony was allowed to determine the credibility of a witness but

did not inform the jury that this was the testimony’s “sole purpose” or that it could

be considered “for no other reason.” Id. at 851–52.

We agree with the Second Court of Appeals and conclude that a trial court is

not required to further instruct a jury that it cannot consider limited-purpose

evidence “as substantive evidence of guilt” where it instructs the jury to consider

the evidence for its limited purpose “and for no other purpose.” Accordingly, we

60
hold that the trial court did not err in not further instructing the jury in this case as

requested by appellant.

We overrule appellant’s nineteenth issue.

Presumption-of-Knowledge Instruction

In his twentieth issue, appellant complains of the following instructions

given by the trial court to the jury in the aggravated-assault-of-a-public-servant

cases:

The defendant is presumed to have known the person assaulted was a
public servant if the person was wearing a distinctive uniform or
badge indicating the person’s employment as a public servant.

You are further instructed that the facts giving rise to the presumption
must be proven beyond a reasonable doubt; and that if such facts are
proven beyond a reasonable doubt you may find the element of the
offense sought to be presumed exists, but you are not bound to do so;
and that even though you may find the existence of such element, the
State must prove beyond a reasonable doubt each of the other
elements of the offense charged; and if you have a reasonable doubt as
to the existence of a fact or facts giving rise to the presumption, the
presumption fails and you shall not consider the presumption for any
purpose.

Appellant objected to the instruction, asserting that there was “no testimony that a

distinctive police uniform was worn” during the execution of the search warrant,

and the trial court overruled his objection.

The instruction mirrors the language used in the Texas Penal Code, which

states the specific presumption of a defendant’s knowledge that a person was a

public servant if the person was wearing a “distinctive uniform or badge” and the
61
general instruction to be given for permissive presumptions. See TEX. PENAL CODE

ANN. §§ 22.02(c), 2.05(a) (Vernon 2011). A permissive presumption allows, but

does not require, the trier of fact to infer the elemental fact or ultimate fact from

the predicate evidentiary fact or facts. Willis v. State, 790 S.W.2d 307, 310 (Tex.

Crim. App. 1990). It places no burden on the accused to refute or disprove the

elemental fact once the predicate facts have been established. Id. Since it does not

relieve the State’s burden of proving guilt beyond a reasonable doubt, a permissive

presumption is generally deemed constitutional if, under the facts of the case, the

reviewing court determines that a rational trier of fact could make the connection

permitted by the presumption. Id.

Here, Lieutenant Gafford testified that Officers Rodriguez and Scoggins

were wearing “ballistic vests” and “ballistic helmets” with the words “Houston

Police” printed on the front and back of each item. The officers also wore a

“tactical rig” that included straps for firearm holsters, handcuffs, and “additional

magazines.” Gafford explained that the items were obtained from “police supply

stations” that deal “strictly [with] police” officers. He explained that whenever the

officers made an arrest, their uniforms had “something on the outside to designate

who they are.” Rodriguez described their uniforms as a “standard uniform” that

included “some kind of black T-shirt that says police.” Furthermore, the trial court

and the jury were presented with photographs showing Rodriguez’s and Scoggins’s

62
outfits worn at the time of the raid, and the officers put on the ballistic vests during

trial to show their appearance to the jury.

In addition, other witnesses spoke to their ability to recognize the outfits in

question as “distinctive” police uniforms. Russell testified that when she saw the

officers approach appellant’s apartment door, she immediately recognized them as

police officers. And Officers Scoggins and Rodriguez both indicated that Davies,

at the scene, quickly complied with their commands, which showed her recognition

of the complainants as police officers.

Appellant did present some evidence that the complainants’ firearms when

used in a standing position could obscure the words “Houston Police” on the front

of their vests, he was able to personally buy shirts with the words “Houston Police”

written on them, and he was aware of burglars having impersonated police officers.

However, given the descriptions of the officers’ outfits, the civilian witnesses who

testified to their recognition of the officers as police officers, and the photographs

of the outfits in evidence, we conclude that the jury could have reasonably inferred

that the officers’ outfits were “distinctive uniforms” or appellant recognized them

as police uniforms. Accordingly, we hold that the trial court did not err in

instructing the jury on the presumption that appellant had knowledge that the

complainants were public servants when they executed the search warrant of his

apartment.

63
 We overrule appellant’s twentieth issue.

Self-Defense and Defense-of-Third-Person Instructions

In his twenty-first issue, appellant complains of the trial court’s reference to

“deadly force” in its instructions relating to the issues of self-defense and defense

of a third person. He asserts that the “undisputed evidence established” that he

“pointed a shotgun at the complainants and cycled it but did not fire.”

Alternatively, he asserts that the trial court erred in not instructing the jury on the

use of non-deadly force in regard to self-defense or defense of a third person.

Deadly force is defined as “force that is intended or known by the actor to

cause, or in the manner of its use or intended use is capable of causing, death or

serious bodily injury.” See TEX. PENAL CODE ANN. § 9.01(3). Here, appellant

admitted to pointing a loaded firearm at the complainants and “cycling” the

firearm. Although appellant claims that his intention was to frighten the

complainants because he believed that they were burglars, the manner of his use of

the firearm was clearly capable of causing death or serious bodily injury. See

Smith v. State, No. 04-95-00337-CR, 1997 WL 94151, at *1 (Tex. App.—San

Antonio Mar. 5, 1997, pet. ref’d) (mem. op.) (not designated for publication)

(stating that, under section 9.01(3), “brandishing a weapon and pointing it at a

person constitutes deadly force”); Paley v. State, 811 S.W.2d 226, 229 (Tex.

64
App.—Houston [1st Dist.] 1991, pet. ref’d) (holding rational trial of fact could

have found appellant used deadly force by pointing firearm at victim’s car).

Appellant next asserts that the trial court erred in not providing the jury with

a free-standing instruction “on the law of justifiable threats” pursuant to Texas

Penal Code section 9.04, which states,

The threat of force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor’s purpose is limited to creating an apprehension that
he will use deadly force if necessary, does not constitute the use of
deadly force.

TEX. PENAL CODE ANN. § 9.04 (Vernon 2011). In Smith, the defendant requested a

similar instruction where the jury had also been instructed on the laws of self-

defense, apparent danger, and defense of third persons. 1997 WL 94151, at *1.

The defendant argued that, unlike section 9.32, authorizing the use of deadly force

in self-defense, section 9.04 does not “require the actor to retreat before

threatening the use of deadly force.” Id.; see TEX. PENAL CODE ANN. § 9.32

(Vernon 2011). The court noted that the first sentence of section 9.04

“incorporates the law of self-defense” as provided under sections 9.31 and 9.32,

and the second sentence of section 9.04, thus, was not a “provision of a third

variety or self-defense.” Smith, 1997 WL 94141, at *1 (citing Kirkpatrick v. State,

633 S.W.2d 357 (Tex. App.—Fort Worth 1982, pet. ref’d)). The court concluded

that the statute requires that “an actor can only point a gun at another person if a
65
reasonable person in the actor’s situation would not have retreated, and if the other

person used, threatened to use, or appeared to be about to use deadly force.” Id. at

*2. And the court held that a section 9.04 instruction would have been irrelevant

given that the trial court provided instructions pursuant to section 9.31. Id.; see

also Cisneros v. State, No. 08-09-00096-CR, 2010 WL 2990657, at *2–3 (Tex.

App.—El Paso July 30, 2010, pet. ref’d) (not designated for publication) (relying

on Smith to hold that defendant was not entitled to separate instruction under

section 9.04). In addition, the court further noted that any error would be harmless

given that the jury was properly instructed on self-defense and defense of others.

Id.

We agree with the analysis presented in Smith. The first sentence of section

9.04 incorporates the justifications provided in Chapter 9 of the Texas Penal Code,

including self-defense and defense of a third person. Because the jury was

properly instructed on these issues, appellant was not entitled to a free-standing

instruction under section 9.04 as well. Accordingly, we hold that the trial court did

not err by in separately instructing the jury on “the law of justifiable threats.”

We overrule appellant’s twenty-first issue.

In his twenty-second issue, appellant asserts that the trial court erred in not

instructing the jury “in the charge on the voluntariness of Jessica Davies’

statement.” In support of his assertion, appellant relies on article 38.22 of the

66
Texas Code of Criminal Procedure, which states that in “all cases where a question

is raised as to the voluntariness of a statement of an accused, . . . evidence

pertaining to such matter may be submitted to the jury and it shall be instructed

that unless the jury believes beyond a reasonable doubt that the statement was

voluntarily made, the jury shall not consider such statement for any purpose.”

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6.

However, as explained above, article 38.22 expressly refers only to

statements of the accused. A defendant does not have standing to challenge the

admission of evidence obtained in alleged violation of another’s legal rights. See

Janecka, 739 S.W.2d at 829; see also Neal, 256 S.W.3d at 284 (holding that

because defendant “lacks standing to raise either a constitutional challenge or a

statutory challenge to the legality” of co-defendant’s statement, he was not entitled

to instruction regarding voluntariness of statement); Pugh, 2007 WL 686639, at

*3–4 (holding defendant was not entitled to instruction on voluntariness of co-

defendant’s statement because even if statement was coerced, “the rights affected

were those of [the co-defendant],” not defendant).

We overrule appellant’s twenty-second issue.

Prosecutorial Vindictiveness

In his twenty-third issue, appellant argues that the trial court erred in

denying his motion “to set aside the cocaine indictment,” appellate cause number

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01-10-00543-CR, trial court cause number 1222277, because it was obtained

“based on prosecutorial vindictiveness.”

A claim of prosecutorial vindictiveness may be established by (1) proof of

circumstances that pose a “realistic likelihood” of such misconduct sufficient to

raise a “presumption of prosecutorial vindictiveness,” which the State must rebut

or face dismissal of the charges, or (2) proof of actual vindictiveness by presenting

direct evidence that the prosecutor’s charging decision is an unjustifiable penalty

resulting solely from the defendant’s exercise of a protected legal right. Neal v.

State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).

In regard to the first situation, the Texas Court of Criminal Appeals has

found a presumption of prosecutorial vindictiveness where the State pursues

increased charges or an enhanced sentence after a defendant is convicted, exercises

his legal right to appeal, and obtains a new trial. Id. In the very few situations in

which this presumption does apply, it can be overcome by objective evidence in

the record justifying the prosecutor’s action that is unrelated to the defendant’s

exercise of his legal right to appeal. Id. at 173–74. The trial court decides the

issue based upon all of the evidence and the credibility of the prosecutor’s

explanation. Id. In the second situation, when the presumption does not apply, a

defendant may still obtain relief if he can show actual vindictiveness. Id. at 174.

To establish such a claim, the defendant must prove, with objective evidence, that

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the prosecutor’s charging decision was made as a “direct and unjustifiable penalty”

that resulted “solely from the defendant’s exercise of a protected legal right.” Id.

Under this prong, the defendant shoulders the burden of both production and

persuasion, unaided by any legal presumption. Id. Once again, the trial judge

decides the ultimate factual issue based upon the evidence and credibility

determinations. Id. at 174–75.

In its response to appellant’s motion to set aside his indictment for the

offense of possession of cocaine, the State asserted that, before the first trial, it had

mistakenly dismissed the indictment instead of dismissing a defective indictment

of appellant for the offense of possession with intent to deliver hydrocodone. The

State noted that it had arraigned appellant in the cocaine case in the first trial, only

to then realize that it had mistakenly dismissed the indictment. And it explained

that it was always its intention “to proceed on all four indictments.” In a pre-trial

hearing on the State’s motion to dismiss, the State noted that the trial court had

indicated that it was “too late to move forward” on the cocaine indictment given

the mistake. The State did not obtain the re-indictment of appellant in the cocaine

case until after the trial court had granted appellant’s first motion for new trial

because “it was impossible . . . to go forward on the cocaine case unless [it] could

re-indictment it and [appellant] would have waived his 10 days for jury trial.” In

its argument on appellant’s motion to set aside the cocaine indictment, the State

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asserted that had it “the opportunity to go forward” in the first case, it “certainly

would have gone forward on all of the indictments.” The trial court denied

appellant’s motion and expressly found that appellant did not raise a realistic

likelihood of a presumption of prosecutorial vindictiveness.

We first note that the State obtained the re-indictment not after appellant

exercised his “legal right to appeal,” but after the trial court itself granted

appellant’s motion for new trial. See id. at 173. However, even assuming that

appellant established a reasonable presumption of prosecutorial vindictiveness, the

trial court was well within its discretion to believe the State’s explanation that the

first indictment was mistakenly dismissed and the State could not obtain a re-

indictment in time to try all of the cases together. See Hood v. State, 185 S.W.3d

445, 448 (Tex. Crim. App. 2006) (holding that State had rebutted presumption of

prosecutorial vindictiveness because trial court was entitled to believe assertion

that State had mistakenly omitted enhancement paragraphs).

We next note that the record does not support appellant’s claim of actual

vindictiveness. The stated reason for obtaining the re-indictment, which the trial

court was free to believe, was that the original indictment was mistakenly

dismissed. See id. at 174. And appellant did not present any distinct evidence that

the State sought the re-indictment based solely on his exercise of a protected legal

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right. Accordingly, we hold that the trial court did not err in denying appellant’s

motion to set aside his indictment for the offense of possession of cocaine.

We overrule appellant’s twenty-third issue.

Cumulative Error

In his twenty-fourth issue, appellant argues that the trial court’s “cumulative

errors denied [him] due process of law and a fair trial” because, even if none of the

errors alone warranted reversal, the “combination of errors, when considered

cumulatively, requires a new trial.”

A number of errors may be found harmful in their cumulative effect.

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Stahl v. State,

749 S.W.2d 826, 832 (Tex. Crim. App. 1988). However, in the preceding twenty-

three issues, we have only found error regarding voir dire and one evidentiary

issue.5 We cannot conclude that the cumulative effect of these two errors

constitutes cumulative harmful error that deprived appellant of his rights of due

process of law and a fair trial.

We overrule appellant’s twenty-fourth issue.

5
In addition to his briefed issues, appellant asserts, in a footnote, that “the trial
court sustained objections and instructed the jury to disregard inadmissible
testimony and improper arguments but denied mistrials.” He argues that “when
considered along with the points of error in the brief,” the trial court’s denial of
mistrials “collectively demonstrate how the prosecutors repeatedly violated the
law and disobeyed court orders to obtain unfair convictions.” As appellant has not
fully briefed this issue and provides no citations of authority, we decline to address
them in our analysis. See TEX. R. APP. P. 38.1.
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 Conclusion

We affirm the judgment of the trial court.

Terry Jennings
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Justice Keyes, concurring without opinion.

Do not publish. TEX. R. APP. P. 47.2(b).

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