Gustavo Valencia v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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GUSTAVO VALENCIA, No. 08-16-00165-CR
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Appellant, Appeal from
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v. 168th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20140D05521)
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OPINION

A jury convicted Appellant of murder, resulting in a sixty-year prison term. His appeal

challenges (1) the failure to submit a jury charge on the lesser included offense of manslaughter,

and (2) the failure to strike testimony or grant a mistrial based on witnesses violating TEX.R.EVID.

614 and TEX.CODE CRIM.PROC.ANN. art. 36.06 (West 2007)(collectively, and more commonly

referred to as the “Rule”). We affirm.

FACTUAL BACKGROUND

This case arises from an after-school fight, but not the kind of fist-a-cuffs that result in a

bloody nose. Rather, Appellant and his friend took semi-automatic pistols to the fight, and by the

end of the fray, an unarmed Aaron Ochoa had been shot ten times, with six of the wounds capable

of having caused his death.
 Appellant’s Version of Events

Appellant was friends with Miguel Bygotia. Appellant attended El Paso High School and

Bygotia attended nearby Paso Del Norte Academy. On October 30, 2014, Bygotia got into a

dispute with one his classmates, Aaron Ochoa, and the two agreed to meet after school. While he

was still at school, Appellant began receiving phone calls and texts from Bygotia. One text asked

Appellant to retrieve two handguns from Bygotia’s house. Appellant ignored the text and

Bygotia’s several phone calls.

After the school day ended, however, Appellant ran into Bygotia who was waiting for him.

According to Appellant, Bygotia asked him to help “scare a guy.” Appellant claims that he agreed

to go with Bygotia so long as scaring the person was all Bygotia was going to do. Scaring,

however, apparently included brandishing guns. Bygotia owned two semi-automatic pistols: a

.380 Bersa and a 9mm Glock. Appellant put the .380 Bersa into his waist band, and Bygotia took

the 9mm Glock.

The two walked to a parking lot near Bygotia’s school. On the way, Appellant claims that

Bygotia repeatedly assured him that he was just going to scare the person. Appellant did not know

the person, nor the nature of the dispute. No one was at the parking lot when they arrived. Bygotia

received a phone call and spoke the words “parking lot” to whomever had called. Two other

friends, Armando Torres, and Jesse Sandoval, arrived shortly in Torres’s SUV.

Details of the shooting sharply diverge at this point. Appellant’s version, presented largely

through his own testimony, recounted that Ochoa along with a group of his friends walked onto

the parking lot. Ochoa was accompanied by a girl, Enid Hernandez, and another unidentified male

who had a scar on his forehead. Bygotia walked towards Ochoa to confront him. Appellant claims

he stayed some distance away and was behind Bygotia.1 Ochoa began taking off his ear rings and

1
The position of where each person stood is difficult to decipher from the written record. Witnesses would use a
2
gave his books to Enid Hernandez. Bygotia and Ochoa began to argue. Appellant did not hear the

conversation, but he saw that Ochoa looked angry. Appellant recalled that the scar-faced male

with Ochoa started moving off and around him.

Appellant then claimed that Ochoa said loudly in Spanish, “Turnala pues,” which he

translated to mean “shoot it then.” He claimed Ochoa was at the same time opening up his hand.

Appellant claims that he became concerned, thinking Ochoa was telling someone “to shoot at us.”

He looked to the left and saw the scar-faced male still walking, and then heard gunshots to his

right. He saw Ochoa reached to his left pocket with his right hand. Appellant claimed to panic

and grasped the .380 Bersa. He then “just put my hand to the side with the gun facing the floor.

And before I started shooting, I close my eyes and I shot as fast as I could” until the gun would

fire no more. But according to Appellant, “Every time I was shooting, it kept my hand moving up

and up and up until it stopped. And when it stopped I open my eyes and I realized that [Ochoa] is

on the floor.” He claimed he only wanted to “make some noise with the gun” so whoever was

shooting would think “Oh, they have guns,” and “maybe they will stop, you know.” At trial, he

flatly claims that he never shot Ochoa.

After he emptied his gun, Appellant followed Jesse Sandoval back to Armando Torres’s

truck, as did Bygotia. They fled the parking lot, and while in the vehicle, Bygotia said, “Bro, I

miss his head.” Sandoval dropped Appellant and Bygotia off at Bygotia’s house. Bygotia

collected the .380 Bersa from Appellant, as well as Appellant’s shirt and pants.

The State’s Case

The State presented a different view of the shooting. Notably, much of its version came

through Appellant’s statement to the police. Detectives quickly learned the identity of Bygotia

pointer and scene diagram to indicate where people stood, but on the written record, all we know is that someone
stood “here” without knowing where “here” happens to be. Distances were approximated through equivalent
landmarks in the courtroom that were not translated to feet or yard measurements.
3
and Appellant and arrested both the morning after the shooting. Appellant gave a recorded

statement soon after his arrest. In the statement, Appellant repeats that Bygotia just intending to

scare Ochoa. Each took one of the guns, and went to the parking lot to wait for Ochoa. When

Ochoa arrived, he started to prepare for a fist fight, but Bygotia pulled out the gun. According to

Appellant’s statement, “At the last moment, when the other guy told him to shoot him, he did.”

Appellant unequivocally stated that he began to shoot Ochoa after Bygotia opened fire: “He shot

him first and then I shot him, too and we just left.” Appellant said he did not know why Bygotia

opened fire. When asked why he shot, Appellant said “I don’t know, sir. I think ‘cause I had his

back.” Nothing in the statement claims that Appellant (1) was just firing into the ground, (2) he

fired just to scare someone, (3) there was scar-faced man who walked behind him, or (4) Ochoa

was reaching for something. At trial Appellant attempted to discredit his police statement, by

claiming it was coerced. The jury charge provided instructions for the jury to evaluate that claim.

The State also presented several eyewitnesses to the shooting. Enid Hernandez walked

with Ochoa to his car in parking lot. As they approached Bygotia and Appellant, Ochoa handed

his things to her which she started to put in his car. As she did, she heard Ochoa say, “If you’re

going to shoot, go ahead and shoot.” She heard gunshots from two guns. Another witness, Jason

Cagann was getting into his car in the parking lot and heard what sounded like firecrackers. He

looked around and saw Ochoa fall to the ground; the single shooter that he saw continued to shoot

him four or five times.

Yvette Rivera also parked in that lot. As she went to her car, she saw two boys standing

near her car who looked nervous, As she was about to turn out of the parking lot, she heard shots,

and saw Ochoa shot six to seven times. According to Rivera, both boys were shooting Ochoa. In

her police statement, she said the shorter of the boys fired once and ran towards a vehicle, the taller

one stayed and kept shooting. She could not identify the boys, however, in a photo line-up.

4
 Vanessa Ruiz, a school principal, happened to be driving by the parking lot at the time of

the shooting. She noticed a large group of students from Del Norte Academy, and then saw two

young men pull guns and start shooting another youth. One shooter was holding his gun straight

forward. The other shooter, who she identified at trial as Appellant, was holding his gun

“sideways.” Her police statement, however, said she only saw one shooter.

Jesse Sandoval, who was friends with Bygotia, accompanied Armando Torres to pick-up

Bygotia after school. According to his testimony, they arrived in the parking lot just after 5:00

pm. Sandoval exited the vehicle and walked towards Bygotia and Appellant. As he approached,

he saw Ochoa come onto the lot and Bygotia and Ochoa began to argue. Bygotia and Ochoa were

five to six feet apart, and Appellant was further back. As Ochoa prepared to fight, Bygotia pulled

out a gun. Ochoa said, “If you’re going to shoot me, just shoot me.” Bygotia started to shoot and

then Appellant did as well. Sandoval, however, believed that Bygotia was shooting at Ochoa and

Appellant was shooting at the ground. He recalled that Appellant had a look of “terror” on his

face. Bygotia kept shooting even after Ochoa fell to the ground.

The Physical Evidence

Ochoa was found face down when first responders arrived at the scene. He was not

breathing and had no heartbeat. Efforts to resuscitate him were unsuccessful. The coroner

identified ten distinct bullet tracks in his body. Six were to the torso, three to the upper extremities,

and one to the lower extremity (one wound to the hand might have overlapped with one of the

other bullet tracks). Most of the bullet tracks were through and through and no slug was ever

recovered. However, three intact slugs and the fragment of a fourth were found in the body.

Taking the testimony of the coroner and a DPS forensic scientist testimony together, two slugs

recovered from two of the torso wounds came from the 9mm Glock (Bygotia’s gun). One slug

was recovered from behind the knee and was identified as a .380 round (the gun that Appellant

5
was using). That slug entered the front of the thigh, shattered the femur, and lodged behind the

knee cap. Another slug fragment found in the body could not be identified as either a .380 or 9mm

round. The coroner concluded that five of the torso wounds, and the .380 wound to the thigh were

all potentially life threatening.2

The police recovered both guns from a vehicle outside of Bygotia’s house. The .380 Bersa

could have held seven rounds in the clip, and one in the chamber for a total of eight potential

rounds. The 9mm Glock could have held 17 rounds in the clip, and one additional round in the

chamber. At the crime scene, the police found four unspent 9mm rounds (a round being the entire

bullet).3 They found six 9mm and seven .380 shell casings. The police determined that all the

shell casings came from the respective Bersa and Glock guns.

Procedural Background

Appellant was indicted for murder, alleged in two distinct ways. The State claimed

Appellant intentionally or knowingly caused Ochoa’s death by shooting him with a firearm. The

State also alleged that Appellant, with intent to cause serious bodily injury to Ochoa, committed

an act “clearly dangerous to human life” that caused his death. The State contended that Appellant

was liable as a primary actor, and additionally responsible for Bygotia’s actions because Appellant

solicited, encouraged, directed, aided or attempted to aide Bygotia to commit the offense of

murder.

At the outset of the jury trial, and upon the request of the State, the trial court invoked “the

rule.” Consistent with TEX.CODE CRIM.PROC.ANN. art. 36.06 (West 2007), the trial court

instructed the witnesses that:

2
Appellant presented expert testimony contesting whether the thigh wound was indeed life threatening.
3
And as we will explain later, there was some testimony that three .380 unspent rounds were supposedly found at
the scene.
6
 You’re ordered to leave the courtroom and not reenter unless instructed to do so by
the bailiff or me. You are not to discuss this case or your testimony with other
witnesses or anyone else except the attorneys. You’re not to read any report of or
comment on the testimony or evidence in the case. Any witness violating this
instruction is subject to being held in contempt of court.
As we explain in more detail below, when one of the investigating detectives was recalled in

Appellant’s case in chief, the detective revealed that several of the detectives had met during the

trial to discuss the case. The trial court recessed the trial to allow Appellant to investigate the

matter. The trial court further conducted a mid-trial hearing on the matter, but denied Appellant’s

motion for mistrial.

Appellant raised the issue of self-defense beginning in both voir dire and opening

argument. The trial court included instructions on self-defense in the charge. At the charge

conference, however, Appellant objected to the jury charge because it lacked a submission on the

lesser-included offense of manslaughter.

The jury found Appellant guilty of murder, and following the punishment phase, assessed

a sixty-year sentence. Appellant raises two issues for our review. He first claims that the trial

court erred in refusing to include instructions on the lesser-included offense of manslaughter.

Next, he claims the trial court erred in refusing to strike testimony, or grant a mistrial, based on

several police detectives violating the witness sequestration rule. We take each issue in turn.

LESSER INCLUDED OFFENSE

In his first issue, Appellant contends the trial court erred in refusing to submit his requested

lesser-included instruction on manslaughter.

Standard of Review and Applicable law

We conduct a two-step Aguilar/Rousseau analysis to determine whether the trial court

should have given the jury a lesser-included offense instruction. State v. Meru, 414 S.W.3d 159,

162 (Tex.Crim.App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012); Knott

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v. State, 513 S.W.3d 779, 791-92 (Tex.App.--El Paso 2017, pet. ref’d). First, we must determine

as a matter of law whether the requested instruction is indeed a lesser-included offense of the

offense charged. Meru, 414 S.W.3d at 162; Cavazos, 382 S.W.3d at 382; Hall v. State, 225 S.W.3d

524, 535 (Tex.Crim.App. 2007). To do this, we compare the elements of the offense as alleged in

the indictment with those of the requested lesser offense. Meru, 414 S.W.3d at 162. Under this

approach, an offense is a lesser-included offense of the charged offense if the indictment alleges

all the elements of the lesser offense, or if the indictment alleges elements plus facts from which

all the elements of the lesser offense may be deduced. See McKithan v. State, 324 S.W.3d 582,

587 (Tex.Crim.App. 2010). This is a question of law independent of the evidence produced at

trial. Rice v. State, 333 S.W.3d 140, 144 (Tex.Crim.App. 2011); see also Meru, 414 S.W.3d at

162.

Second, as a question of fact, we must determine whether there is some evidence in the

record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only

of the lesser offense. See Meru, 414 S.W.3d at 162-63, citing Hall, 225 S.W.3d at 536; Guzman

v. State, 188 S.W.3d 185, 188-89 (Tex.Crim.App. 2006). “[A]nything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge on a lesser offense.” Cavazos, 382

S.W.3d at 385; see also Meru, 414 S.W.3d at 163. Further, in determining whether the evidence

presented at trial supports an instruction on a lesser offense, a reviewing court may not consider

whether the evidence presented was “credible, controverted, or in conflict with other evidence.”

Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998).

Nonetheless, the evidence supporting an instruction on a lesser offense “must still be

directly germane to the lesser-included offense[.]” Cavazos, 382 S.W.3d at 385; see also Hampton

v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). Moreover, this “threshold requires more

than mere speculation--it requires affirmative evidence that both raises the lesser-included offense

8
and rebuts or negates an element of the greater offense.” Cavazos, 382 S.W.3d at 385. It is not

enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather,

there must be some evidence directly germane to the lesser offense for the finder of fact to consider

before an instruction on a lesser offense is warranted. See Skinner v. State, 956 S.W.2d 532, 543

(Tex.Crim.App. 1997); see also Cavazos, 382 S.W.3d at 385; Hampton, 109 S.W.3d at 441.

A trial court’s refusal to submit a lesser-included offense that was requested and raised by

the evidence results in some harm when that failure leaves the jury with the sole option to either

convict the defendant of a greater offense or to acquit him. Saunders v. State, 913 S.W.2d 564,

571 (Tex.Crim.App. 1995); Roy v. State, 09-14-00367-CR, 2017 WL 2380527, at *3 (Tex.App.--

Beaumont May 31, 2017, pet. ref’d)(mem. op. not designated for publication); Brooks v. State, No.

08-15-00208-CR, 2017 WL 6350260, at *7 (Tex.App.--El Paso Dec. 13, 2017, pet. ref’d)(mem.

op., not designated for publication). The defendant is harmed “because the jury was not permitted

to fulfill its role as factfinder to resolve the factual dispute whether the defendant committed the

greater or lesser offense.” Saunders, 913 S.W.2d at 571.

Application

Appellant was charged with murder by “intentionally and knowingly” causing the death of

Ochoa, or alternatively, intentionally causing “serious bodily injury,” thereby resulting in his

death. As a matter of law, manslaughter is a lesser-included offense of murder. Roy v. State, 509

S.W.3d 315, 317 (Tex.Crim.App. 2017); Cavazos, 382 S.W.3d at 384. As such, the only issue for

our consideration is whether there was any evidence presented at trial from which a rational jury

could have found Appellant guilty of manslaughter, and not guilty of the greater offense of murder.

Appellant claims he met this burden by eliciting evidence that Bygotia only planned to

scare Ochoa, but once the shooting starting, all Appellant did was close his eyes, and discharge his

gun into the ground to scare anyone who might shoot at him. Only because of his lack of skill or

9
experience with a gun, did the repeated kick of the gun angle it upwards, perhaps causing one of

his bullets to strike Ochoa. The State responds with a four-pronged attack: (1) the issue is

inadequately briefed and thus forfeited; (2) Appellant relied on a self-defense theory that inherently

negates manslaughter; (3) Appellant never presented any evidence supporting a jury finding of

manslaughter, as distinct from perhaps criminally negligent homicide, and (4) Appellant was guilty

as a party for assisting Bygotia. We reject the inadequate briefing claim. Further, we need reach

only the question of whether Appellant presented any evidence for the mental state for

manslaughter to decide this issue.

Adequacy of Briefing

In a single paragraph argument, the State claims that Appellant’s briefing is inadequate

which precludes us from reaching the merits. The State specifically argues that Appellant “does

not cite any authority in his argument, such that his complaint should be rejected on this basis

alone.” The Rules of Appellate Procedure provide clear guidelines for the form of an appellant’s

brief. TEX.R.APP.P. 38.1. A reasonable checklist for the appropriate elements of an appellant’s

brief in a criminal case is set out in Walder v. State, 85 S.W.3d 824, 827 (Tex.App.--Waco 2002,

no pet.). Essential in that list are an appropriately stated standard of review, identification of

governing legal principles, and the application of those principles to the facts of the case. Id.

Appellant’s brief appropriately states the standard of review. He provides record citations

to evidence that he claims negates the murder charge and supports the manslaughter submission.

He applies the law to the facts to argue that a rationale jury could have found him guilty of

manslaughter, but not murder. His brief mainly lacks citation to any case on similar facts that

would support his argument. Yet because these cases are necessarily fact specific, that kind of

authority is helpful but not essential to Appellant’s claim. Under the circumstances, we find that

the brief substantially complies with TEX.R.APP.P. 38.1 and we will review the merits.

10
 Lack of any evidence for manslaughter

Murder is statutorily defined as intentionally or knowingly causing the death of another, or

alternatively, intentionally or knowingly causing serious bodily injury to another by committing

an “act clearly dangerous to human life,” resulting in that person’s death. TEX.PENAL CODE ANN.

§ 19.02 (West 2011). A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result. TEX.PENAL CODE ANN. § 6.03(a)(West 2011). A person acts

knowingly when he is aware of the nature of his conduct and that his conduct is reasonably certain

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

On the other hand, manslaughter requires a finding that the defendant “recklessly cause[d]

the death of an individual.” TEX.PENAL CODE ANN. § 19.04(a)(West 2011). A person acts

recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that

the result will occur. Id. at § 6.03(c). By example, manslaughter might include conduct such as:

shaking or striking a child so as to cause death, Ramos v. State, 407 S.W.3d 265, 267

(Tex.Crim.App. 2013); hogtying a victim who then suffocates, Ibarra v. State, 08-05-00207-CR,

2007 WL 2457587, at *7-9 (Tex.App.--El Paso Aug. 30, 2007, no pet.)(not designated for

publication); striking a person in the head with a fist, that hours later results in death from

hemorrhage, Milam v. State, 08-04-00354-CR, 2006 WL 304528, at *2 (Tex.App.--El Paso Feb. 9,

2006, pet. ref’d)(not designated for publication).

Further down the scale of culpability lies criminally negligent homicide, which involves

causing the death of another by criminal negligence. TEX.PENAL CODE ANN. § 19.05(a). Criminal

negligence involves inattentive risk creation; the actor ought to be aware of the risk surrounding

his conduct or the results thereof. Lugo v. State, 667 S.W.2d 144, 147-48 (Tex.Crim.App. 1984);

Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975); Todd v. State, 911 S.W.2d 807, 814-

11
15 (Tex.App.--El Paso 1995, no pet.). Distinguishing the two, recklessness involves conscious

risk creation, as opposed to the inattentive risk creation involved in criminal negligence. Lewis,

529 S.W.2d at 553. Recklessness requires conscious disregard of the risk created by the actor’s

conduct, while criminal negligence describes a failure by the actor to perceive the risk. Id.

At the outset, we agree that Appellant presented some evidence contesting the requisite

mental state for murder. He claimed only to participate in a plan where Bygotia would at most

scare Ochoa. Once Bygotia deviated from that plan, Appellant claimed to only fire his gun into

the ground to scare off Ochoa or his friend from shooting him. But his statement that he did not

intend to kill Ochoa, standing alone, does not raise the issue of manslaughter. As the Court of

Criminal Appeals noted in Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986), a

statement that a defendant did not intend to kill the victim “cannot be plucked out of the record

and examined in a vacuum.” Instead, regardless of any statements made by the defendant on the

issue of intent, the entire record must still be reviewed to determine if a rational trier of fact could

have concluded that the defendant acted recklessly. Mathis v. State, 67 S.W.3d 918, 926

(Tex.Crim.App. 2002); Arnold v. State, 234 S.W.3d 664, 672 (Tex.App.--Houston [14th Dist.]

2007, no pet.).

Given the statutory definition of manslaughter, the record needed to contain “some

affirmative evidence” from which a rational juror could have concluded that Appellant had the

lesser mental state required for manslaughter, i.e., that he acted recklessly in conscious disregard

of an unjustifiable risk that his conduct would cause the victim’s death. Cavazos, 382 S.W.3d at

385; see also Roy v. State, 509 S.W.3d 315, 317 (Tex.Crim.App. 2017)(“Despite knowing the risks

associated with drinking alcohol, smoking marihuana, and smoking dip cigarettes while driving,

Roy chose to drive that night.”). Classically in this type of case, “[e]vidence that a defendant

knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points

12
a gun at another, indicates a person who is aware of a risk created by that conduct and disregards

the risk.” Thomas v. State, 699 S.W.2d 845, 850 (Tex.Crim.App. 1985). We do not find that kind

of evidence in the record.

Appellant never testified that he pointed the gun at anyone, nor did he have any particular

knowledge of firearms. The only thought process he described was a claim of self-defense, which

generally negates the recklessness required for a manslaughter submission. See, e.g., Shannon v.

State, No. 08-13-00320-CR, 2015 WL 6394922, at *10 (Tex.App.--El Paso Oct. 21, 2015, no

pet.)(not designated for publication)(where defendant claimed to swing and hit decedent, after she

first swung at him); Nevarez v. State, 270 S.W.3d 691, 694-95 (Tex.App.--Amarillo 2008, no

pet.)(where defendant in murder trial admitted purposefulness of actions that led to death and

argued self-defense); Martinez v. State, 16 S.W.3d 845, 848 (Tex.App.--Houston [1st Dist.] 2000,

pet. ref’d)(where defendant testified that he acted in self-defense); Avila v. State, 954 S.W.2d 830,

843 (Tex.App.--El Paso 1997, pet. ref’d)(defendant’s claim that he acted in self-defense precluded

an instruction on reckless discharge of a weapon); Johnson v. State, 915 S.W.2d 653, 659-60

(Tex.App.--Houston [14th Dist.] 1996, pet. ref’d)(where defendant testified that he acted in self-

defense). And indeed, through voir dire, opening, and in his own testimony, Appellant raised the

self-defense claim.

A jury may of course infer intent or knowledge from any fact that tends to prove its

existence, including the acts, words, conduct of the accused, and the method of committing the

offense. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004). None of Appellant’s words,

conduct, or method of committing the offense raise a recklessness state of mind. Typically,

shooting a person at close range infers an intentional, rather than reckless or negligent intent, even

considering the defendant’s testimony that he did not intend to kill his victim. See, e.g., Cavazos,

382 S.W.3d at 385 (where evidence revealed that the defendant pointed a loaded gun at his victim,

13
pulled the trigger twice, and then fled the scene, no rational jury could have concluded that his

conduct was merely reckless, despite the defendant’s testimony that he did not intend to kill his

victim); Mathis, 67 S.W.3d at 926 (where evidence revealed that the defendant walked into an

apartment and fired a high-powered rifle at three separate victims, no rational juror could have

concluded that defendant was guilty only of manslaughter and not murder, despite the defendant’s

claim that his conduct was not intentional); Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App.

1999)(defendant’s act of shooting a victim in the buttocks was “clearly dangerous to human life,”

and defendant’s testimony that he did not intend to kill his victim was insufficient to warrant an

instruction on the lesser-included offense of manslaughter).

Appellant and Sandoval testified that Appellant was shooting at the ground. That

testimony, along with Appellant’s claim that he closed his eyes and was inexperienced with

firearms, might suggest that he failed to perceive the risk of discharging a firearm near a group of

people. That evidence might support some argument for criminally negligent homicide, which

does not require the conscious disregarding a risk. Todd, 911 S.W.2d at 814-15 (at the heart of

reckless conduct is conscious disregard of the risk created by the actor’s conduct; the key to

criminal negligence is found in the failure of the actor to perceive the risk). Yet Appellant did not

seek an instruction on criminally negligent homicide. And evidence that might support a criminal

negligence charge does not support a manslaughter charge. See Montoya v. State, 744 S.W.2d 15,

28 (Tex.Crim.App. 1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73

(Tex.Crim.App. 1996)(gun that discharged while defendant attempted to throw it away did not

raise issue of manslaughter, but only criminally negligent homicide); Hunter v. State, 647 S.W.2d

657, 659 (Tex.Crim.App. 1983)(gun discharged when defendant slung his arm behind him while

driving).

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 Because the record would not support a rationale jury finding recklessness as required for

manslaughter, we overrule Issue One.

VIOLATION OF “THE RULE”

The trial court concluded that several detectives violated the witness sequestration rule

during the trial. Appellant’s second issue claims that the trial court erred in failing to strike

testimony, and in not granting his motion for mistrial based on that violation.

Basis of the Complaint

The State called Detective Hector Loya as its second witness. His testimony focused on

the initial hours of the investigation, including his confirmation that Ochoa expired, the arrest of

Armando Torres, and the arrest the next morning of Appellant. The State proved up Appellant’s

confessional interview through Detective Loya, and most of his testimony focused on the

circumstances of the interview, including whether Appellant knowingly and voluntarily waived

his right against self-incrimination. At the conclusion of his testimony, even though he was

released from his subpoena, the trial court instructed Detective Loya “not to discuss this case or

your testimony with other witnesses or anyone else except the attorneys.” He was further

admonished “not to read any report of or comment on the testimony or evidence in the case.” He

was warned that any violation of the rule subjected him to being held in contempt, and he

acknowledged understanding that instruction.

The State later called Officer Devika Foster who collected evidence at the crime scene.

She identified seven .380 and five 9mm shell casings found at the scene. On cross-examination,

she was asked, and initially agreed, that three unspent .380 rounds were also found at the scene.4

4
On cross examination:
[DEFENSE COUNSEL]: Now, there were also three full rounds of .380 calibers that were not
spent that were found. Correct?
[FOSTER]: I believe so.
[DEFENSE COUNSEL]: Okay. Those are not entered into evidence though. Correct?
[FOSTER]: No.
15
She later attempted to correct that testimony to state that three unspent 9mm rounds were found.5

(5RR205) Appellant’s counsel attempted to impeach Foster with a supplemental report prepared

by Detective Loya that stated the police had found a total of ten .380 rounds, spent and unspent at

the scene. She would not verify the detective’s statement, and testified that “you would have to

ask him.” Appellant attempted to do just that by recalling Detective Loya in his case to elicit that

statement from the report.

When recalled, however, Detective Loya recanted the statement in his supplement that

three live rounds of .380 ammunition were found at the scene. He recanted his supplemental report

after reviewing Officer Foster’s report. He apparently reviewed her report during the trial:

[DEFENSE COUNSEL]: Okay. So you’ve included that in your supplement of
November 13, 2014, and that was incorrect?
[LOYA]: That is correct. It’s incorrect.
[DEFENSE COUNSEL]: All right. Now, you reviewed Officer Foster’s report just
recently?
[LOYA]: Yes.
[DEFENSE COUNSEL]: Okay. After she had testified?
[LOYA]: I don’t know if she has or hasn’t testified.
[DEFENSE COUNSEL]: Okay. “Recently” meaning within the past day or two?
[LOYA]: Yes.

5
Foster then tried to correct herself:

[DEFENSE COUNSEL]: Okay. And you also testified earlier that there was also three full rounds
of .380 calibers that had not been spent that were found. Correct?
[FOSTER]: No, nine millimeter rounds.
[DEFENSE COUNSEL]: No, .380 rounds that had not been entered into evidence?
[FOSTER]: I don’t remember.
[DEFENSE COUNSEL]: Okay.
[FOSTER]: I know it’s not on this sheet.
[DEFENSE COUNSEL]: Right. And I had asked you that also at the crime scene there was three
.380 rounds that were found and you had answered yes. Do you recall that?
[FOSTER]: Yes.
[DEFENSE COUNSEL]: All right. So -- and those have not been entered into evidence. We don’t
see those there. Correct?
[FOSTER]: No, they’re not on the sheet.
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 [DEFENSE COUNSEL]: Okay. At the request of the district attorney’s office?
[LOYA]: Actually, there in our office the detectives that are working this case, they
were talking about it and we were all reviewing it.
[DEFENSE COUNSEL]: Okay. Which detectives were discussing it?
[LOYA]: Detective Posada and Detective Lara.
[DEFENSE COUNSEL]: All right. And detective -- this is Detective Mike Lara?
[LOYA]: Yes. Uh-huh.
Detective Mike Lara had also testified in the trial, and he was also admonished not to discuss the

case with anyone. Appellant’s counsel was able to develop in cross-examination before the jury

that Detective Loya violated the court’s instructions not to discuss the case and not to review any

reports.

Standard of Review and Applicable law

“The Rule is designed to prevent witnesses from altering their testimony, consciously or

not, based on other witnesses’ testimony.” Routier v. State, 112 S.W.3d 554, 590 (Tex.Crim.App.

2003), citing Webb v. State, 766 S.W.2d 236, 239 (Tex.Crim.App. 1989). The issue typically

arises when a litigant claims that a trial court erred in either (1) excluding a witness, or (2) allowing

a witness to testify when they have been found to have violated the rule. Id. The Texas Court of

Criminal Appeals has articulated a two-part test for addressing these type claims. Id. Appellant,

however, never sought the exclusion of any witness below, but rather sought a mistrial.

We review a trial court’s denial of a motion for mistrial for an abuse of discretion. Archie

v. State, 221 S.W.3d 695, 699-700 (Tex.Crim.App. 2007); Salazar v. State, 38 S.W.3d 141, 148

(Tex.Crim.App. 2001). We uphold a trial court’s ruling if it is within the zone of reasonable

disagreement. Archie, 221 S.W.3d at 699, citing Wead v. State, 129 S.W.3d 126, 129

(Tex.Crim.App. 2004). “Generally, a mistrial is only required when the improper evidence is

‘clearly calculated to inflame the minds of the jury and is of such a character as to suggest the

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impossibility of withdrawing the impression produced on the minds of the jury.’” Hinojosa v.

State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999), citing Hernandez v. State, 805 S.W.2d 409, 414

(Tex.Crim.App. 1990). “Only in extreme circumstances, where the prejudice is incurable, will a

mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Freeman v.

State, 340 S.W.3d 717, 727-28 (Tex.Crim.App. 2011), cert. denied, 565 U.S. 1161 (2012); Archie,

221 S.W.3d at 699-700. Otherwise, where the prejudice is curable, an instruction by the court to

disregard eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App.

2004). As regards a violation of “the rule,” a trial court has broad discretion to determine whether

a violation harms the defendant, and a reviewing court will not disturb its ruling absent a clear

abuse of discretion. Beets v. State, 767 S.W.2d 711, 747 (Tex.Crim.App. 1987), cert. denied,

492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989); White v. State, 867 S.W.2d 921, 927

(Tex.App.--Houston [1st Dist.] 1993, no pet.).

Application

Appellant’s second issue complains in part that trial court erred in not striking Detective

Loya’s testimony. We reject that claim because Appellant never made that specific request below.

After Detective Loya testified that several of the detective witnesses had met and discussed the

case, Appellant’s counsel asked for a mistrial. His counsel based that motion on the lack of “full

discovery.” The trial court acknowledged that striking testimony was a potential remedy available

to it, but for time being, the trial court denied the motion for mistrial. Instead, it recessed the trial

for several days to allow Appellant to investigate whether the State possesses an additional

evidence that had not been produced, or there were other corrections that needed to be made to

Detective Loya’s reports.

The trial court held a hearing the next day to further address the issue. The three detectives

were present for the hearing, but none were called to testify about their meeting, or what

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specifically they had discussed. The trial court presented a draft order that declined to hold the

Detective Loya in contempt, or grant a mistrial, but alluded to the recess in the trial. Appellant

repeated his request for a mistrial, and did not ask for any other specific relief. We therefore

decline to hold that the trial court abused its discretion in denying relief that was never requested.

As a fundamental tenet of error preservation, the complaint on appeal must mirror the complaint

at trial. Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App. 2009)(“A complaint will not be

preserved if the legal basis of the complaint raised on appeal varies from the complaint made at

trial.”). Moreover, a “party must have informed the trial judge what was wanted and why the party

was entitled to it.” [Emphasis added]. Id. We therefore overrule Appellant’s second issue as it

pertains to striking testimony.

Nor did the trial court abuse its discretion in overruling Appellant’s motion for mistrial.

The State urges that the trial court erred in concluding that any of its witnesses violated the witness

sequestration rule. We need not reach that issue, because even assuming there was a violation, on

this record a mistrial was not warranted. We arrive at that conclusion for several reasons. First,

Detective Loya was principally called by the State to prove up Appellant’s confession. The State

never called him to testify about the evidence found at the crime scene, because simply put,

Detective Loya was never at the crime scene. But the record at most suggests that Detective Loya

participated in a discussion, and reviewed a report, germane to whether 9mm or .380 unspent

rounds were found at the scene. And his testimony only addressed that issue because Appellant

attempted to use one of Detective Loya’s supplemental reports to impeach another State witness.

Yet it seems evident that Detective Loya had no first-hand knowledge of the claim made in his

report, and Appellant was accorded additional time to investigate why his report read as it did.6

6
Even at that, the claim that there might have been three unspent .380 rounds seems implausible on its face. The .380
Bersa could hold seven rounds in the clip, and one in the chamber. The police recovered seven spent .380 shell casings
at the scene that it linked to the .380 Bersa. If there were three unspent .380 rounds, they would have needed to come
19
 Appellant was able to impeach Detective Loya before the jury for failing to follow the trial

court’s instructions not to discuss the case. Appellant sought no other relief short of a mistrial.

Here, failing to seek the lesser remedy of an appropriate instruction is fatal to his claim. The Court

of Criminal Appeals addressed an analogous issue in Lee v. State, 549 S.W.3d 138 (Tex.Crim.App.

2018). In that case, the State intended to prove the defendant was driving while intoxicated based

on (1) the defendant’s loss of normal mental or physical faculties, and (2) having a blood alcohol

level greater than the statutorily prescribed level. Id. at 139. The State’s attorney had alluded to

the BAC level and a blood test in voir dire and in opening statements. Id. Almost half the trial

was devoted to testimony over the blood sample. Id. The trial court, however, excluded any

testimony about the actual test result when it came to light that the State could not establish a

proper chain of custody for the blood sample. Id. at 142. The defendant then moved for a mistrial,

declining to ask for an instruction that the jury ignore the multiple references to the BAC test. Id.

The trial court denied the motion for mistrial, but the court of appeals reversed the conviction on

the sole point that a mistrial should have been granted. Id.

The Texas Court of Criminal Appeals, however, concluded that failing to ask for a curative

instruction in that case was fatal to the claim. “We agree that if a curative instruction would have

sufficed, it cannot be said that the trial court abused its discretion to deny Appellant’s final mistrial

request.” Id. at 145, citing Ocon v. State, 284 S.W.3d 880, 885 (Tex.Crim.App. 2009)(“Though

requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not

request a lesser remedy, we will not reverse the court’s judgment if the problem could have been

cured by the less drastic alternative.”). In Lee, the curative instruction presumably would have

told the jury ignore a substantial amount of evidence and argument that they had already heard. In

this case, an instruction could have been much narrower, such as telling the jury to set aside

from another .380 pistol, but no witness ever testified to a third person actually having or firing a gun at the scene.
20
Detective Loya’s recanting of his supplemental report. Instead, Appellant sought only a mistrial.

Because that remedy is reserved for “extreme circumstances, where the prejudice is incurable,”

we decline to hold the trial court abused its discretion in failing to grant a mistrial. See Hawkins,

135 S.W.3d at 77.

Issue One and Two are overruled and the judgment of conviction is affirmed.

September 28, 2018
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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