Jesus Rodriguez v. State

NUMBER 13-16-00396-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESUS RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 450th District Court
of Travis County, Texas.

MEMORANDUM OPINION 1

Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Hinojosa

Appellant Jesus Rodriguez appeals his conviction for murder, a first-degree felony.

See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 1st C.S.). A jury

1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
returned a guilty verdict, and the trial court assessed punishment at life imprisonment in

the Texas Department of Criminal Justice–Institutional Division. Appellant raises five

evidentiary issues, which primarily address the exclusion of evidence supporting

appellant’s belief or delusion that the decedent Michael Norwood was associated with a

drug cartel and was attempting to carry out a “hit.” By two additional issues, appellant

challenges the sufficiency of the evidence supporting his conviction and argues that the

trial court abused its discretion in denying his motion for new trial. We affirm.

I. BACKGROUND

Appellant was charged by indictment with intentionally or knowingly causing the

death of Norwood by shooting him with a firearm. See id. The record reflects that

appellant shot and killed Norwood at Brackenridge Hospital (the hospital) in Austin,

Texas, shortly before midnight on December 31, 2013. Appellant arrived at the hospital

earlier that evening complaining of back pain. He was prescribed medication and was

discharged around 7:20 p.m. However, appellant remained around the emergency room

waiting area for approximately four hours. A triage nurse asked hospital security to

escort appellant from the building around 11:00 p.m. Appellant exited the waiting room

area but remained just outside of the hospital.

Sonya Manning testified that she was waiting for a ride at the hospital. She

witnessed security personnel direct appellant to leave the premises and noticed that he

was carrying a backpack. While Manning was waiting inside the hospital, Norwood

approached her and asked to use her lighter. She later went outside to smoke a

cigarette and began conversing with Norwood. Manning noticed two police cars nearby.

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After one of the officers drove away, appellant approached Norwood and Manning, asking

“What did you all say about me?” Norwood answered, “Ain’t nobody said nothing about

you dude.” Appellant walked away, and Manning continued talking with Norwood.

According to Manning, after the second officer drove away, appellant approached

them again and asked, “What did you all say about me?” Manning and Norwood again

denied saying anything about appellant. Manning stated that appellant then walked in

front of them, pulled out a gun, and said, “I was just waiting for the laws to leave.”

Manning described what happened next:

And he shot [Norwood.] It looked like—from my point of view, it looked like
a straight face shot. [Norwood] blocked it and—he blocked it. And then
[appellant] went up and grabbed [Norwood.] And I ran sideways like, you
know—I’m thinking I’m running sideways, I ran into the emergency room.
And that’s when two more shots went off and it was [Norwood.] And he
shot [Norwood] again.

Manning explained that when appellant approached them, Norwood was on the phone

“with his kinfolk.”

Several officers responded to the scene. According to their testimony, they

apprehended appellant nearby on hospital grounds. Officers discovered a firearm under

Norwood’s body. They also recovered appellant’s backpack and found two loaded

handgun magazines.

According to the autopsy, Norwood died from two gunshot wounds—to his left

upper chest and to the backside of his left shoulder. The muzzle imprint on the wounds

indicated that the gun was in contact with Norwood’s body when it was fired.

Appellant testified in his defense. He claimed that he believed Norwood was an

associate of a drug cartel and that he feared he was carrying out a “hit.” Appellant

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believed he was being targeted by a drug cartel, and he claimed that cartel members had

previously shot and stabbed him. Appellant stated that he reached out to police on

multiple occasions concerning these incidents. Appellant went to the hospital that

evening “for protection and for the prescription.” He remained on the premises because

he felt the hospital was a safe location.

According to appellant, just prior to the shooting, he heard Norwood state “That

fool is in front of me right now. If you’re going to cap him, cap him.” Appellant then

began walking toward the parking garage when he heard a gunshot. He stated, “I start

freaking out. I start looking around. And then [Norwood is] right there. And it

happened all fast. We started fighting.” Appellant claimed that his gun was thrown from

his backpack during the struggle. He stated, “We both went after the gun, and we started

struggling over the gun.” Appellant admitted that he fired the gun that killed Norwood

and that the gun found under Norwood’s body was his.

The jury charge included instructions for murder, manslaughter, and self-defense.

The jury found appellant guilty of murder. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his sixth issue, which we address first, appellant argues the evidence was

legally insufficient “to support the verdict.” Specifically, appellant argues that “the

evidence demonstrates it is reasonable to believe that self-defense was necessary.”

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

4
prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in

Jackson); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality

op.); see also Kirk v. State, 421 S.W.3d 772, 776–77 (Tex. App.—Fort Worth 2014, pet.

ref’d) (applying the Jackson standard to the jury’s rejection of a self-defense theory). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,

767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).

In reviewing the legal sufficiency of the evidence to support the fact-finder’s

rejection of the defensive issue of self-defense, we look not to whether the State

presented evidence which refuted appellant’s self-defense testimony, but rather we

determine whether any rational trier of fact would have found the essential elements of

murder beyond a reasonable doubt and also would have found against appellant on the

self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991); see Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas

2016, pet. ref’d); Kirk, 421 S.W.3d at 777.

B. Applicable Law

A person commits murder if he intentionally or knowingly causes the death of an

5
individual or if he intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN.

§ 19.02(b)(1)–(2). However, under certain circumstances, self-defense justifies the use

of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). The Texas

Penal Code provides in part that a person is justified in using deadly force against another

when and to the degree he reasonably believes the deadly force is immediately necessary

to protect himself against the other’s use or attempted use of unlawful deadly force. TEX.

PENAL CODE ANN. §§ 9.31, 9.32(a) (West, Westlaw through 2017 1st C.S.).

The initial burden to produce evidence supporting self-defense rests with the

defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804

S.W.2d at 913. Once the defendant produces some evidence, the State bears the

ultimate burden of persuasion to disprove the raised defense. See Zuliani, 97 S.W.3d at

594; Saxton, 804 S.W.2d at 913–14. “The burden of persuasion is not one that requires

the production of evidence, rather it requires only that the State prove its case beyond a

reasonable doubt.” Zuliani, 97 S.W.3d at 594. The issue of self-defense is a fact issue

to be determined by the jury, which is free to accept or reject any defensive evidence on

the issue. Saxton, 804 S.W.2d at 913–14. If the jury finds the defendant guilty, then it

implicitly finds against the defensive theory. Id. at 914.

C. Analysis

The jury heard conflicting testimony concerning the moments preceding

Norwood’s death. Appellant claimed he feared Norwood was attacking him because he

was associated with a drug cartel. Appellant described hearing Norwood say, “That fool

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is in front of me right now. If you’re going to cap him, cap him.” Appellant then heard a

gunshot and described a physical struggle with Norwood resulting in his firearm falling

from his backpack. Appellant claimed that he and Norwood both attempted to grab the

weapon but that he reached the gun first. He stated he fired the weapon at Norwood

because he feared for his life.

Manning’s testimony directly contradicts appellant’s version of events. According

to Manning, appellant approached Norwood, pulled out his weapon, and shot Norwood

without provocation. There was no evidence that Norwood was armed, and the only

weapon recovered from the scene belonged to appellant.

Manning’s testimony that appellant approached Norwood and shot him without

provocation is legally sufficient evidence to support the jury’s implied rejection of

appellant’s self-defense claim. As the exclusive judge of the credibility of the witnesses,

it was within the jury’s province to disbelieve appellant’s version of the deadly encounter.

See Brooks, 323 S.W.3d at 899. When viewing the evidence in the light most favorable

to the verdict, the jury could have rationally rejected appellant’s defense claims and found

each element of the charged offense was proven beyond a reasonable doubt. See

Johnson, 364 S.W.3d at 293–94; Saxton, 804 S.W.2d at 913–14. We overrule

appellant’s sixth issue.

III. EVIDENTIARY ISSUES

A. Standard of Review

We review a trial court’s ruling on evidentiary matters under an abuse of discretion

standard. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). A trial court

7
abuses its discretion if its action is arbitrary or unreasonable. State v. Mechler, 153

S.W.3d 435, 439 (Tex. Crim. App. 2005). We consider the trial court’s ruling in light of

what was before it at the time the ruling was made and uphold the ruling if it lies within

the zone of reasonable disagreement. Billodeau, 277 S.W.3d at 39. We will uphold the

trial court’s ruling if it was correct under any theory of law applicable to the case. Bowley

v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).

B. Mental Health Evidence

By his first issue, appellant argues that the trial court abused its discretion when it

excluded the testimony of Marisa Mauro, Psy.D., a court-appointed psychologist.

Appellant argues that Dr. Mauro should have been permitted to testify that appellant

suffered from a delusional disorder because such evidence “pertained to [appellant’s]

reasonable belief that self-defense was necessary.”

1. Pertinent Testimony

Dr. Mauro testified outside the presence of the jury regarding her examination of

appellant. Dr. Mauro examined appellant to evaluate his competency to stand trial and

whether he was legally sane. Dr. Mauro concluded that appellant was both competent

and sane. She detailed that appellant believed certain individuals or groups were “out

to get him.” Dr. Mauro stated that appellant reported hearing people talking and walking

around in his attic. She believed that appellant’s reports were consistent with auditory

hallucinations and a delusional disorder constituting a mental disease or defect. She

described the mental disease varyingly as a persecutory delusion or a paranoid delusion.

Dr. Mauro opined that at the time of the murder, appellant believed people were stalking

8
him and had “basically put a hit out on him.” According to Dr. Mauro, appellant believed

that Norwood might have been a hitman. However, Dr. Mauro could not say whether or

not appellant was able to “form intent” for the offense of murder. The trial court sustained

the State’s objections that, among other things, Dr. Mauro’s testimony did not negate the

mens rea for the offense of murder.

2. Applicable Law

Appellant did not raise insanity as an affirmative defense. Other than insanity

there is no affirmative defense of “diminished capacity” in Texas. Ruffin v. State, 270

S.W.3d 586, 593 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex.

Crim. App. 2005). Rather, diminished capacity is recognized as a “failure-of-proof

defense in which the defendant claims that the State failed to prove that the defendant

had the required state of mind at the time of the offense.” Jackson, 160 S.W.3d at 573.

As with other elements of the offense, the defendant may present relevant evidence

negating the requisite mens rea. Ruffin, 270 S.W.3d at 594; Jackson, 160 S.W.3d at

574. This evidence may include evidence of a defendant’s history of mental illness or

evidence of a defendant’s physical or mental diseases or defects. Ruffin, 270 S.W.3d at

593–94; Jackson, 160 S.W.3d at 574. But the evidence still must meet generally

applicable requirements for admission of evidence, and it may be excluded if it does not

truly negate the required mens rea. Mays v. State, 318 S.W.3d 368, 381–82 (Tex. Crim.

App. 2010); Ruffin, 270 S.W.3d at 595–96.

A person commits murder if he intentionally or knowingly causes the death of an

individual or when he, with the intent to cause serious bodily injury, commits an act clearly

9
dangerous to human life and thereby causes death. TEX. PENAL CODE ANN. §

19.02(b)(1)–(2). A person acts intentionally when it is his conscious objective or desire

to engage in the conduct or cause the result. Id. § 6.03(a) (West, Westlaw through 2017

1st C.S.). A person acts knowingly when he is aware that his conduct is reasonably

certain to cause the result. Id. § 6.03(b).

3. Analysis

In the absence of an insanity defense, Dr. Mauro’s testimony concerning

appellant’s delusional disorder was admissible only if such evidence negated the

necessary mens rea for murder. See Ruffin, 270 S.W.3d at 596. Ruffin illustrates when

evidence of mental disease or defect is admissible to negate the mens rea for an offense.

The defendant in that case shot at approaching police officers because, due to his

delusional state, he believed the officers were Muslims who were “waiting to kill [him] with

a knife.” Id. at 590. The trial court excluded testimony of appellant’s psychologist

regarding the existence and severity of his mental disease and delusions, ruling that such

testimony is admissible only if a defendant pleads insanity. Id. The court of criminal

appeals reversed, concluding that the defendant’s mistaken perception, caused by a

mental defect, was relevant to mens rea because it proved that he did not intend to shoot

at police officers, an element of aggravated assault of a public servant. Id. at 594; see

TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West, Westlaw through 2017 1st C.S.)

(enhancing punishment for aggravated assault if assailant intentionally attacked public

servant in discharge of duties). The court noted that the psychologist’s testimony, if

believed, would have lessened the offenses from first-degree aggravated assaults of

10
police officers to second-degree aggravated assaults (an intentional shooting at a

“trespasser” or at “Muslims”). Ruffin, 270 S.W.3d at 594.

In Jackson, the court of criminal appeals concluded that evidence of the

defendant’s mental illness did not negate mens rea for the offense of murder:

Rather, the evidence presented an excuse for the crime, i.e., that Appellant
killed his brother because he was so paranoid that he thought his brother
was out to get him. In fact, this evidence makes it even more apparent that
Appellant intended to cause serious bodily injury or death to his brother.
The evidence of appellant’s paranoia simply provides a motive for the
intentional act. The evidence presented was the type of excuse-based
evidence that would be raised as an affirmative defense. As even
Appellant acknowledges, Texas law does not recognize a lesser form of the
insanity affirmative defense.

160 S.W.3d 568, 572 (Tex. Crim. App. 2005).

Unlike Ruffin, the charged offense is murder, not aggravated assault of a public

servant, and the proffered evidence does not negate the mens rea. The State was

required to prove that appellant intended to shoot at a person, not a specific individual

such as a public servant. The excluded evidence establishes that appellant intended to

kill Norwood and his motive for doing so—a paranoid delusion that Norwood was a hitman

for a drug cartel. Nothing in Dr. Mauro’s testimony suggests that appellant did not have

the ability to form or did not form the culpable mens rea for committing murder.

Therefore, her testimony would only be relevant to support a “lesser form of the insanity

affirmative defense” which has been rejected by Texas courts. See Mays, 318 S.W.3d

at 381 (holding that the trial court “was not required to admit any expert testimony

concerning appellant’s mental illness during the guilt stage because it did not directly

rebut his culpable mens rea” and distinguishing Ruffin in part on the basis that “[a]ppellant

11
offered no evidence to suggest that he did not intend to shoot a person”); Jackson, 160

S.W.3d at 572.

Appellant claims alternatively that the evidence is admissible to support his claim

of self-defense. On that point, we find Mays instructive:

Appellant fails to acknowledge that each of these justification defenses
requires that the defendant reasonably believe that his conduct is
immediately necessary to avoid a greater harm. As with the statutory
mistake-of-fact defense, a “reasonable belief” is one that would be held by
an ordinary and prudent person, not by a paranoid psychotic. Appellant’s
repeated claim that “his paranoid ideations and active psychosis” raise a
“reasonable belief” that his actions were justified is supported neither by law
nor common sense.

Texas law does not recognize the “ordinary and prudent” paranoid psychotic
for purposes of Penal Code justification defenses. The only affirmative
defense available under Texas law for those who commit crimes while
suffering from an abnormal mental disease or defect is insanity under
Section 8.01. Appellant did not assert an insanity defense at trial, and he
cannot now claim entitlement to some other statutory defense based upon
his mental disease or defect.

318 S.W.3d at 385–86 (internal citations omitted). As indicated in Mays, self-defense

supported by a paranoid delusion is not a recognized defense in Texas.

Finally, appellant argues that Dr. Mauro’s testimony is admissible under article

38.36(a) of the code of criminal procedure. That provision states that:

In all prosecutions for murder, the state or the defendant shall be permitted
to offer testimony as to all relevant facts and circumstances surrounding the
killing and the previous relationship existing between the accused and the
deceased, together with all relevant facts and circumstances going to show
the condition of the mind of the accused at the time of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West, Westlaw through 2017 1st C.S.). The

court in Ruffin explained article 38.36’s significance as follows:

We quoted article 38.36 in Jackson for the unremarkable proposition that

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 both the State and defendant may offer testimony as to “all relevant facts
and circumstances going to show the condition of the mind of the accused
at the time of the offense.” This is one of the few Texas statutes that
explicitly states the obvious: evidence offered by either the defense or
prosecution is relevant (and presumptively admissible) to prove or disprove
the pertinent mens rea at the time of the offense.

Ruffin, 270 S.W.3d at 596 (internal citations and footnote omitted). To be admissible

under article 38.36, evidence of mental illness must still meet general evidentiary

requirements and may be excluded if it does not truly negate the mens rea. Id. In this

case, as previously explained, evidence of appellant’s delusional disorder does not

negate the mens rea for murder. Therefore, the trial court did not abuse its discretion in

excluding Dr. Mauro’s testimony. See Billodeau, 277 S.W.3d at 39. We overrule

appellant’s first issue.

C. Private Investigator’s Testimony

By his second issue, appellant argues that the trial court abused its discretion when

it excluded the testimony of Paul Brick, a private investigator retained by appellant.

1. Pertinent Facts

Brick testified that he is a retired police officer with twenty-eight years’ experience

in law enforcement. Brick stated that he spoke to various law enforcement agents to

confirm whether appellant cooperated in drug investigations. When appellant inquired

as to the substance of those conversations, the State urged a hearsay objection.

Appellant responded that the hearsay was admissible because it formed the basis for

Brick’s expert opinion. The trial court excused the jury and conducted a hearing

concerning the admissibility of Brick’s testimony.

Outside the presence of the jury, Brick testified that his area of expertise was

13
“organized crime, drug-smuggling networks.” Brick stated that he intended to offer the

following opinion to the jury: “Whether or not I was able to verify that [appellant] did in

fact make contact with members of law enforcement and turn over information to them[.]”

Brick stated that he intended to offer an opinion as to whether appellant was telling the

truth in that regard. He stated that the basis for his opinion was a summary of

conversations he had with law enforcement personnel.

Appellant’s counsel argued that Brick was being offered “just to verify [appellant]

had these meetings [with law enforcement] and did turn over information.” The State

responded that Brick was not qualified to render an expert opinion and that his opinion

was not reliable. Regarding reliability, the State argued that Brick was not relying on or

utilizing any principles in the field of his expertise but was simply testifying as to what

other people told him. The State further argued that Brick was not drawing any

conclusions “other than [appellant] is a truth teller.” Because he was not offering an

expert opinion, the State maintained that Brick’s testimony was inadmissible hearsay.

The trial court sustained the State’s objection to Brick’s testimony.

2. Applicable Law

The admissibility of expert testimony is governed by Texas Rule of Evidence 702,

which provides that “[a] witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise if the

expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. In addition,

Rule 705 provides that, if the court determines that “the underlying facts or data do not

14
provide a sufficient basis” for the expert’s opinion under Rule 702, the opinion is

inadmissible. Id. R. 705(c).

In determining the admissibility of expert testimony, a trial judge must make three

separate inquiries, whether: “(1) the witness qualifies as an expert by reason of his

knowledge, skill, experience, training, or education; (2) the subject matter of the testimony

is an appropriate one for expert testimony; and (3) admitting the expert testimony will

actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525,

527 (Tex. Crim. App. 2006). These conditions are commonly referred to as qualification,

reliability, and relevance. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).

Here, the opinion testimony of the officer concerned a soft science. See Weatherred v.

State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (distinguishing “hard” from “soft”

sciences). The reliability of soft science evidence may be established by showing that

the field of expertise involved is legitimate, the subject matter of the expert’s testimony is

within the scope of that field, and the expert’s testimony properly relies on or utilizes the

principals involved in that field. Id. To show that an expert properly relied on the

principles of his field, the expert’s proposed testimony must be derived from the expert’s

“knowledge, skill, experience, training, or education . . . .” TEX. R. EVID. 702.

3. Analysis

Brick testified that his area of expertise was “organized crime, drug-smuggling

networks.” However, Brick’s verification of appellant’s cooperation with law enforcement

did not constitute an opinion derived from his expertise. See id.; Weatherred, 15 S.W.3d

at 542. Rather, Brick was simply sharing a summary of his contacts with law

15
enforcement officials. Further, Brick acknowledged that his conclusions constituted an

opinion regarding whether appellant was telling the truth when he claimed to have made

such contacts. “It is generally improper for a witness to offer a direct opinion as to the

truthfulness of another witness and such opinion is therefore inadmissible evidence.”

Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(citing Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997)); see Reynolds v. State,

227 S.W.3d 355, 365–66 (Tex. App.—Texarkana 2007, no pet.). This rule applies to

expert and lay witness testimony alike. Fisher v. State, 121 S.W.3d 38, 41 (Tex. App.—

San Antonio 2003, pet. ref’d); Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.—El Paso

2002, no pet.). We conclude that the trial court did not abuse its discretion in concluding

that Brick’s testimony was not reliable expert evidence.

Appellant argues in the alternative that Brick’s testimony was admissible as a lay

opinion. Admission of lay-opinion testimony is controlled by Texas Rule of Evidence

701. When conducting a rule 701 evaluation, the trial court must decide: (1) whether

the opinion is rationally based on perceptions of the witness; and (2) whether it is helpful

to a clear understanding of the witness’s testimony or to a determination of a fact in issue.

TEX. R. EVID. 701; see Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).

Rule 701 requires the proponent of lay-opinion testimony to establish, as a predicate, that

the witness has personal knowledge of the events upon which his opinion is based. See

Fairow, 943 S.W.2d at 898. Personal knowledge will generally come directly from the

witness’s senses. Id.; see Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984).

Brick’s opinion testimony was not based on personal knowledge. Rather, his opinion

16
that appellant cooperated with law enforcement officers was based on the hearsay

statements of those very officers. See TEX. R. EVID. 801(d), 802. A lay-witness opinion

based on hearsay is inadmissible. McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.—

Eastland 1988, pet. ref’d); see Fairow, 943 S.W.2d at 898.

We conclude that Brick’s testimony was not proper expert or lay opinion testimony.

Therefore, the trial court did not abuse its discretion in excluding the evidence. See

Billodeau, 277 S.W.3d at 39.

D. Norwood’s Drug Use

By his third and fourth issues, appellant argues the trial court erred in excluding

references to Norwood’s drug use in the moments preceding his death. Appellant sought

to question Manning concerning Norwood’s statement that he had used drugs the day

before and that he was attempting to buy more. Appellant also sought to introduce a

toxicology report showing that Norwood had cocaine in his system at the time of his death.

The State objected that the evidence was not relevant, constituted improper character

evidence, and was overly prejudicial. The trial court sustained the State’s relevance

objection. Appellant maintains on appeal that the evidence was offered for a non-

character purpose and was relevant to his claim of self-defense. 2

1. Applicable Law

Relevant evidence is evidence which has any tendency to make the existence of

2 Appellant also argues in conclusory fashion that the testimony was admissible to impeach

Manning’s credibility. However, appellant does not support this contention with argument or authority.
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”). Therefore, the issue is inadequately
briefed and presents nothing for our review. See McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim.
App. 2001).
17
any fact of consequence more or less probable than it would be without the evidence.

TEX. R. EVID. 401. Relevant evidence is generally admissible, unless it is prohibited by

law or an evidentiary rule. Id. R. 402. For instance, when the probative value of relevant

evidence is substantially outweighed by the danger of unfair prejudice, the evidence is

inadmissible under Rule 403. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim.

App. 1991) (citing TEX. R. EVID. 403). In addition, evidence of a person’s other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show that

he acted in conformity with that character. TEX. R. EVID. 404(a)(1); see Tate v. State,

981 S.W.2d 189, 192 (Tex. Crim. App. 1998) (explaining that evidence of a person’s

character may not be used to prove that the person “behaved in a particular way at a

given time”). On the other hand, a defendant may be allowed to offer evidence of a

victim’s character for violence to show that a victim was the first aggressor in a violent

encounter, regardless of whether the defendant was aware of that evidence. Ex parte

Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2009). Such evidence must be in the form

of opinion or reputation, and not specific instances of violent behavior. Id.; TEX. R. EVID.

404(a)(3), 405(a).

Further, a defendant may offer reputation or opinion testimony or evidence of

specific prior acts of violence by the victim to show the “reasonableness of [the]

defendant’s claim of apprehension of danger” from the victim. Ex parte Miller, 330

S.W.3d at 618 (citing Torres v State, 71 S.W.3d 758, 760 & n.4 (Tex. Crim. App. 2002)).

This purpose invokes Rule 404(b) because the evidence is offered to show the

defendant’s own self-defensive state of mind and the reasonableness of that state of

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mind. Id. at 618-19; Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).

However, the defendant must show that he was aware of the victim’s specific acts for the

evidence to be admissible for this purpose. Torres, 71 S.W.3d at 760 n.4.

Finally, a defendant may also introduce evidence under Rule 404(b) of a “victim’s

prior specific acts of violence when offered for a non-character purpose—such as his

specific intent, motive for an attack on the defendant, or hostility—in the particular case.”

Ex parte Miller, 330 S.W.3d at 620; see TEX. R. EVID. 404(b)(2). “As long as the proffered

violent acts explain the outward aggressive conduct of the deceased at the time of the

killing, and in a manner other than demonstrating character conformity only, prior specific

acts of violence may be admitted even though those acts were not directed against the

defendant.” Torres, 71 S.W.3d at 762. “The proper predicate for the specific violent

prior act by the deceased is some act of aggression that tends to raise the issue of self-

defense, which the violent act may then help clarify.” Torres v. State, 117 S.W.3d 891,

895 (Tex. Crim. App. 2003) (emphasis in the original).

2. Analysis

We first note that the evidence was not in the form of reputation or opinion

testimony concerning Norwood’s violent character. See Ex parte Miller, 330 S.W.3d at

619. Therefore, the evidence is not admissible to show that Norwood was the first

aggressor in the encounter. See id. Next, appellant did not establish that he was aware

that Norwood had recently used cocaine. Therefore, the evidence would not be

admissible to show the reasonableness of appellant’s apprehension of danger. See

Torres, 71 S.W.3d at 760 n.4. Finally, appellant has not shown that Norwood’s cocaine

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use demonstrated any specific intent, motive to attack appellant, or hostility that Norwood

may have had. For instance, there is nothing in the record connecting Norwood’s drug

use to the alleged violent acts or to any propensity of Norwood to act violently. See

Torres, 117 S.W.3d at 895; see also Moore v. State, No. 10-06-00319-CR, 2007 WL

4260446, at *3 (Tex. App.—Waco Dec. 5, 2007, pet. ref’d) (mem. op., not designated for

publication) (holding that evidence of murder victim’s drug use was not relevant apart

from showing character conformity). We conclude that the trial court did not abuse its

discretion in concluding that Norwood’s drug use was not relevant apart from showing

character conformity. See Billodeau, 277 S.W.3d at 39.

We also conclude that the evidence would have been properly excluded under

Rule 403. See Bowley, 310 S.W.3d at 434 (explaining that an appellate court must

uphold a trial court’s evidentiary ruling on any theory of law applicable to the case).

When conducting a Rule 403 analysis, the trial court must balance: (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent's need for

that evidence against (3) any tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury from the

main issues, (5) any tendency of the evidence to be given undue weight by a jury that has

not been equipped to evaluate the probative force of the evidence, and (6) the likelihood

that presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.

Crim. App. 2006).

The probative value of evidence concerning intoxication “necessarily depends

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upon the ability to infer intoxicating effects from the fact of consumption of the controlled

substance.” Gonzalez v. State, ___ S.W.3d. ___, __, No. PD-0181-17, 2018 WL

1736689, at *6 (Tex. Crim. App. Apr. 11, 2018). Here, the record is silent as to precisely

when Norwood used cocaine, the drug’s intoxicating effects, and how long those effects

lasted. Assuming the evidence was of minimal relevance, the probative force of the

evidence rested entirely upon the ability to draw an inference of intoxication at the time of

the offense. Without additional evidence regarding the cocaine’s intoxicating effects and

its relation to Norwood’s behavior, such evidence had little probative value. See id. at

*7; see also TEX. R. EVID. 104(b) (“When the relevance of evidence depends on whether

a fact exists, proof must be introduced sufficient to support a finding that the fact does

exist.”).

Further, appellant had little need for the evidence. Appellant’s theory at trial was

that he feared for his life because he believed Norwood was carrying out a hit for a drug

cartel. In support of that defense, appellant presented evidence that he was previously

targeted by cartel members and that Norwood stated he was going to “cap” appellant

moments before the shooting. Appellant also claimed that he and Norwood engaged in

a struggle over appellant’s firearm. Norwood’s use of cocaine does nothing to further

appellant’s defensive theory.

On the other hand, Norwood’s drug use had the potential to impress the jury in

some irrational and indelible way. The evidence had the potential to lure the jury to

reaching a conclusion based on a decedent’s cocaine use, and the stigma attached to

such behavior, without the aid of any evidence concerning the drug’s effect.

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 We conclude that the Rule 403 balancing factors support the trial court’s

evidentiary ruling. See Gonzalez, 2018 WL 1736689, at *7–8 (holding that evidence of

defendant’s use of the drug ecstasy was inadmissible under Rule 403 without additional

evidence concerning the effects of the drug or its relation to defendant’s behavior).

Therefore, the trial court did not abuse its discretion in excluding evidence of Norwood’s

cocaine use. See Billodeau, 277 S.W.3d at 39. We overrule appellant’s third and fourth

issues.

E. Impeachment Evidence

By his fifth issue, appellant argues the trial court abused its discretion when it

excluded evidence that Manning’s brother, Otis Pearce, visited appellant in jail.

Appellant argues such evidence was relevant because it demonstrates potential witness

bias and it impeaches Manning’s testimony that she did not know appellant.

1. Pertinent Facts

During the cross-examination of Manning, appellant elicited that Manning had a

brother named Otis Pearce. Appellant later testified that he was long-time friends with

Pearce. Appellant explained that he knew Manning was Pearce’s sister but that he had

never spoken to Manning before the night of the shooting. Appellant could not say

whether Manning knew appellant.

During a hearing outside the presence of the jury, appellant’s counsel argued for

the introduction of evidence that Pearce visited appellant in jail following his arrest.

Appellant intended to establish this through his own testimony and a video of the jail visit.

The State argued that the evidence was not relevant in that it did not impeach Manning’s

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testimony. The State noted that appellant testified he had never spoken to Manning,

which was consistent with Manning’s claim that she did not know appellant. The trial

court sustained the State’s objection.

2. Applicable Law

A defendant may cross-examine a witness on any subject “reasonably calculated

to expose a motive, bias or interest for the witness to testify.” Carroll v. State, 916

S.W.2d 494, 497 (Tex. Crim. App. 1996). Texas Rule of Evidence 613(b) allows an

opponent to impeach a witness by proof of bias or interest by first questioning the witness,

and if the witness denies the bias or motive, “the opponent may introduce extrinsic

evidence to prove the motive or bias.” Hammer v. State, 296 S.W.3d 555, 563 (Tex.

Crim. App. 2009) (citing TEX. R. EVID. 613(b)). “[G]enerally speaking, the Texas Rules

of Evidence permit the defendant to cross-examine a witness for his purported bias,

interest, and motive without undue limitation or arbitrary prohibition.” Id. The trial court,

however, has broad discretion to impose reasonable limitations on cross-examination to

avoid harassment, prejudice, confusion of the issues, endangering the witness, and the

injection of cumulative or collateral evidence. Carroll, 916 S.W.2d at 498 (citing

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

3. Analysis

Appellant was not prevented from presenting evidence of Manning’s potential bias.

Appellant testified that he was long-time friends with Pearce. Appellant also elicited from

Manning that Pearce was her brother. Appellant however acknowledged that he had

never spoken to Manning, and he was unable to say whether or not Manning knew him

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through his association with Pearce. The fact that Pearce visited appellant in jail

following his arrest does not further demonstrate any bias or motive on the part of

Manning. If anything, the evidence is merely cumulative of appellant’s earlier testimony.

We are unable to conclude that the trial court’s ruling was an abuse of its broad discretion

to avoid injection of cumulative or collateral evidence. See Carroll, 916 S.W.2d at 498.

IV. MOTION FOR NEW TRIAL

By his seventh and final issue, appellant argues that the trial court abused its

discretion in denying his motion for new trial. Appellant maintains that he was entitled to

a new trial based on newly discovered evidence. 3

A motion for new trial must be filed within thirty days after sentence is imposed or

suspended in open court. TEX. R. APP. P. 21.4(a); see State v. Arizmendi, 519 S.W.3d

143, 150 (Tex. Crim. App. 2017); State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App.

2013). The motion can be amended at any time during that thirty–day period, but the

trial court is barred from considering a ground raised outside the thirty–day period if the

State properly objects. Arizmendi, 519 S.W.3d at 150; Zalman, 400 S.W.3d at 593; see

TEX. R. APP. P. 21.4(b). The trial court must rule on a motion for new trial within 75 days

after imposing or suspending sentence in open court. TEX. R. APP. P. 21.8(a).

3 Article 40.001 of the Texas Code of Criminal Procedure provides, “A new trial shall be granted
an accused where material evidence favorable to the accused has been discovered since trial.” TEX. CODE
CRIM. PROC. ANN. art. 40.001 (West, Westlaw through 2017 1st C.S.). To obtain relief under this provision,
the defendant must satisfy the following four-prong test: (1) the newly discovered evidence was unknown
or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover or obtain the new
evidence was not due to the defendant’s lack of due diligence; (3) the new evidence is admissible and not
merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and
will probably bring about a different result in a new trial. State v. Arizmendi, 519 S.W.3d 143, 149 (Tex.
Crim. App. 2017); Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014).

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Generally, a trial court has plenary jurisdiction over a case for the first thirty days after

sentencing because it has the authority to receive a motion for new trial (or motion in

arrest of judgment) within that time period and to resolve the merits of that motion within

seventy-five days of sentencing. See id. R. 21.8; State v. Moore, 225 S.W.3d 556, 569

(Tex. Crim. App. 2007); McClinton v. State, 121 S.W.3d 768, 778 n.1 (Tex. Crim. App.

2003) (Cochran, J., concurring); State v. Holloway, 329 S.W.3d 247, 252 (Tex. App.—

Texarkana 2010), aff’d, 360 S.W.3d 480 (Tex. Crim. App. 2012).

Appellant timely filed his first motion for new trial on June 10, 2016, which was

within thirty days of the May 24 sentencing. That motion was overruled by operation of

law on August 8, 2016. However, appellant’s amended motion for new trial, which

asserted newly-discovered evidence as its basis, was not filed until September 20, 2016,

approximately four months later. Because the amended motion was not filed within

seventy-five days of sentencing, the trial court was deprived of any authority to rule on

the motion. See Moore, 225 S.W.3d at 569.

We overrule appellant’s seventh issue.

V. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
17th day of May, 2018.

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