Dedric D'Shawn Jones v. State

Opinion issued August 6, 2019

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00717-CR
———————————
DEDRIC D’SHAWN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1452040

MEMORANDUM OPINION ON REMAND

A jury convicted appellant, Dedric D’Shawn Jones, of the third-degree felony

offense of assault on a family member, second offense.1 After appellant pleaded true

1
See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (providing that, typically, assault is
Class A misdemeanor, but offense is third-degree felony if committed against
to the allegations in two enhancement paragraphs, the trial court assessed his

punishment at twenty-five years’ confinement. On original submission of this

appeal, appellant contended that the trial court erred by (1) limiting his cross-

examination of a State witness—the complainant’s mother—concerning her

potential interest in a pending child custody action involving appellant and the

complainant, and (2) by excluding evidence that the complainant had threatened and

been violent towards her mother in the past because the State opened the door to this

evidence during the mother’s testimony. A majority of the panel held that the trial

court committed reversible error when it limited appellant’s cross-examination of

the complainant’s mother concerning her interest in the child custody proceeding.

See Jones v. State, 540 S.W.3d 16, 33–35 (Tex. App.—Houston [1st Dist.] 2017),

rev’d, 571 S.W.3d 764 (Tex. Crim. App. 2019). Because it reversed the judgment of

conviction and remanded the case to the trial court, the panel majority did not address

appellant’s second issue.

The Court of Criminal Appeals subsequently held that, although the trial

court’s limitation of appellant’s cross-examination of the complainant’s mother

violated his Sixth Amendment right to cross examine witnesses, the error was

harmless beyond a reasonable doubt. See 571 S.W.3d at 770–72. The Court of

person with whom defendant has dating relationship and defendant has previously
been convicted of assault on person with whom defendant has dating relationship).
2
Criminal Appeals reversed our judgment and remanded the case to this Court to

address appellant’s second issue.

We affirm.

Background

This case involves a domestic dispute between appellant and his girlfriend,

Amy Jimenez. Jimenez did not testify at trial. The only eyewitnesses to the incident

between appellant and Jimenez were appellant and Adeline Gonzales, Jimenez’s

mother.

A. Factual Background

Appellant, Jimenez, their one-year-old daughter A.J. (“Alice”), and Gonzales

all lived in a house together in Houston. On the evening of December 17, 2014, all

four of them gathered in the living room to watch a movie. During a scene in the

movie, appellant made inappropriate comments, and Jimenez told him to stop

because her mother was in the room. Tensions between appellant and Jimenez began

to rise, and Gonzales left the room with Alice. She later returned to the living room

to tell Jimenez that Alice needed some items from the store for school.

Appellant testified that after the rebuke from Jimenez he walked out of the

room and went to the garage, where he stayed for around an hour and half while

playing games on his cell phone. Jimenez came into the garage “a few times” and

talked to appellant. Appellant characterized these conversations as Jimenez “trying

3
to pick a fight” with him. Appellant was sitting in a “tight little space” between two

cars in the garage, focusing on his cell phone and trying to ignore Jimenez. He

testified that Jimenez then got in his face and “karate kick[ed the] phone out of my

hand.” He stated that Jimenez hit his hand “pretty hard,” and his phone fell to the

floor. He slapped Jimenez in response. He stated that Gonzales was “probably” there

in the garage when this occurred, but he doubted that she was able to see what had

happened between Jimenez and him.

Appellant stated that Gonzales started yelling at him to leave, which he

eventually agreed to do, but he wanted to hug Alice before he left. He testified that

Gonzales is “real possessive” of Alice, and she would not let appellant hug Alice

before leaving. Appellant went back inside the house to grab his wallet, and he

discovered that Gonzales was calling the police. Appellant left the house through the

back door, jumped over the fence, and walked to a nearby park. He later came back

to the house and was arrested. Appellant agreed with his counsel that Jimenez and

Gonzales had “a volatile relationship.”

Gonzales testified that, after she told Jimenez that Alice needed some items

for school, Jimenez agreed to go to the store and went into the garage, where she

started speaking with appellant. Gonzales heard the conversation between Jimenez

and appellant start to get heated. Gonzales picked up Alice and opened the door to

the garage because she planned to give money to Jimenez for the items Alice needed.

4
Gonzales saw Jimenez try to get appellant’s attention by “whack[ing]” or

“slapp[ing]” the cell phone in his hand. She did not see Jimenez kick appellant.

Appellant then “took a swing at [Jimenez] and he hit her in the face.” She stated that

appellant hit Jimenez “pretty hard because her whole face went back,” and she saw

blood coming from Jimenez’s lip.

Gonzales told Jimenez to leave and go to her father’s house. Gonzales called

9-1-1, and appellant tried to grab Gonzales’s phone from her hand. At one point,

appellant went inside the house, and when he came back to the garage, he was

“[s]creaming obscenities, calling [Gonzales] everything in the book and ransacking

what he could.” She testified that appellant picked up a jack in the garage and started

swinging it around, “walking around like he’s tormenting [Gonzales].” While

Gonzales was still holding Alice in her arms, appellant yelled and kicked the doors

to Gonzales’s car, and Gonzales stated that she was afraid for both her safety and

Alice’s. She testified that appellant grabbed Alice away from her and walked around

swinging her while Alice cried and screamed. According to Gonzales, appellant

went back inside the house and was screaming and kicking things inside when the

police arrived at the house. She stated that, when the officers went inside the house,

they did not find anyone, but they saw that the back door was open.

5
 Gonzales testified that Jimenez arrived back at the house after the police had

arrived, and Jimenez was angry that Gonzales had called the police. When Jimenez

returned, Gonzales could see “a big ball in her lip” and dried blood on her face.

Houston Police Department Officer J. Portillo was the first officer to arrive at

the house after Gonzales called 9-1-1. He encountered Gonzales and Jimenez, both

of whom “seemed pretty upset and emotional at the time.” Officer Portillo testified

that Jimenez’s face was red and she had watery eyes, and she was not initially

cooperative with the officers. He also observed a cut on Jimenez’s upper lip. Portillo

did not see any damage to property in the garage, and when he went inside the house,

he did not get the impression that items in the house had been disturbed or thrown

around.

The trial court admitted copies of several letters that appellant wrote to

Jimenez while he was in custody during the pendency of this case. In the letters,

appellant attempted to persuade Jimenez to sign an affidavit of non-prosecution and

to tell the district attorney that she had lied to the police about the incident. In one

letter, appellant stated, “Man, Amy, I already know you wouldn’t testify against me

so why wouldn’t you lie for me.” In another letter, appellant stated,

And I need you to tell them [the district attorney and the trial court] that
didn’t happen at all, Amy. Tell them that you thought I got caught
cheating and you was just mad at the time, Amy, and you lied to the
police about what happened and you just wanted me to go to jail,
Amy. . . . Straight tell them people that you don’t wanna testify against
me and that you ain’t coming to court. But I’ma need you to have your
6
 mom do the same thing, Amy. Straight up because she was a witness.
Ain’t nobody else on my report except you and your mom, Amy.

Gonzales testified that she found these letters at the house after she told appellant to

stop contacting Jimenez and that she delivered the letters to the prosecutor.

B. Procedural Background

Before testimony began, defense counsel stated that he wanted to question

Gonzales about Jimenez’s reputation in the community for being violent, including

whether there was a history of violence between Jimenez and Gonzales. Defense

counsel stated, “I believe it goes to the motive as to why the mother [Gonzales] is

the person who is—who calls in and becomes a main witness for the State, not

[Jimenez].” The trial court stated:

So my ruling is that—my understanding is that the witness, Adeline
Gonzales, is an eyewitness to this offense. So Crawford [v.
Washington] really is not applicable because the defense is going to
have the opportunity to cross-examine Adeline Gonzales.
Second, it is not admissible—my ruling is that any proof of facts of
criminal conduct that Adeline Gonzales might know about or any
previous types of violence that Adeline Gonzales may know about or
any fights between Adeline Gonzales and the complainant [Jimenez]
are not relevant to this case and are not admissible under 601.
Further, under 608, the reputation for violence is not admissible. So
those questions will not be permitted. If you feel that specific acts of
conduct by Amy Jimenez become relevant through Adeline Gonzales,
of course, acts of criminal violence that go to the facts of this offense,
but if you believe that any previous acts of conduct, any other specific
instances become relevant, just ask to approach and discuss it. At this
point I don’t see how they are, so those are not admissible.

7
 During the direct examination of Gonzales, the State asked her to tell the jury

about Jimenez. Gonzales stated that Jimenez is an only child and “has always been

a very vibrant person.” She testified: “Always been a good kid. She’s been in

parochial school her whole life since she was four years old. And then, of course,

she went into high school, decided to go to public school. Always been a good kid.

She never was in trouble.”

The following exchange occurred during cross-examination of Gonzales:

Defense counsel: At this time I renew my request to go into—
The Court: Right. What’s your objection?
The State: It’s not relevant and it would be based on hearsay.
The Court: It’s outside 609. I don’t think it’s permitted by the
Rule.
Defense counsel: I think the door’s been opened, 701 and 601, just on
two points. What type of daughter was she
[Jimenez]? She was a good girl to their relationship.
I think that opens the door to me being able to ask
questions. If my request is overruled—I mean,
sustained, if the State’s objection is sustained, I
would ask for the right to make a bill of exception
what I would be asking at this time.
The Court: We can do that at the lunch hour. So the objection
is sustained and we’ll do that at the lunch hour.

The trial court did not allow defense counsel to cross-examine Gonzales in front of

the jury concerning any past violent behavior that Jimenez had engaged in with

respect to Gonzales.

8
 Defense counsel made the following bill of exception outside the presence of

the jury:

Defense counsel: Let the record reflect I’m asking these questions
under 701 and 405. You stated in direct testimony
that Amy was a good kid and never got in trouble,
correct?
Gonzales: That’s correct.
....
Defense counsel: You’ve known Amy for all her life?
Gonzales: Correct. Yes.
Defense counsel: And you know her—do you know her reputation for
violence in the community?
Gonzales: Violence in the community?
Defense counsel: Has she made threats to other people?
Gonzales: If she has—I’m sorry?
Defense counsel: That you’re personally aware of?
Gonzales: No.
....
Defense counsel: And what about your relationship regarding Amy?
Has she ever threatened you?
Gonzales: Yes.
Defense counsel: And is that on few or many occasions?
Gonzales: Few occasions.
....
Defense counsel: Has Amy ever hit you?
Gonzales: Yes.
Defense counsel: Did she hit you before you hit her?

9
 Gonzales: Yes.
Defense counsel: And that’s on several occasions; isn’t that true?
Gonzales: Yes.

After defense counsel made the bill of exception, when the parties were discussing

the admissibility of expert testimony from a social worker with the Harris County

District Attorney’s Office, counsel asked the trial court, “Will I be able to get into

the violent aspect that Amy may have for whatever reason?” Counsel stated, “[T]he

Court has heard, you know, that [Jimenez] strikes first on many occasions.” The trial

court stated that its ruling remained the same and that evidence concerning Jimenez’s

violent conduct towards Gonzales was not relevant.

The jury charge included an instruction on the law of self-defense. The jury

rejected that defense and found appellant guilty of the offense of assault on a family

member, second offense. After appellant pleaded true to the allegations in two

enhancement paragraphs, the trial court assessed his punishment at twenty-five

years’ confinement. This appeal followed.

Exclusion of Evidence

In his second issue, appellant contends that the trial court erred by excluding

rebuttal evidence that Jimenez, the complainant, had engaged in violent acts and

other threatening behavior towards Gonzales, her mother, in the past. Specifically,

appellant argues that the State opened the door to this evidence when it elicited

10
testimony from Gonzales that Jimenez had “always been a good kid” and “was never

in trouble,” allowing appellant to introduce rebuttal evidence to correct the false

impression of Jimenez’s character left by Gonzales’s testimony.

A. Standard of Review and Governing Law

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial

court abuses its discretion when its decision falls outside the zone of reasonable

disagreement, that is, when the decision is “so clearly wrong as to lie outside the

zone within which reasonable people might disagree.” Id. at 83 (quoting Taylor v.

State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)). We uphold a trial court’s

evidentiary ruling if it was correct on any legal theory or basis applicable to the case.

Id. at 93; Jones v. State, 466 S.W.3d 252, 261 (Tex. App.—Houston [1st Dist.] 2015,

pet. ref’d).

Generally, evidence of a person’s character or character trait is not admissible

to prove that on a particular occasion the person acted in conformity with the

character or trait. TEX. R. EVID. 404(a)(1). However, in a criminal case, a defendant

may offer evidence of a victim’s pertinent character trait, and if the evidence is

admitted, the prosecutor may offer evidence to rebut it. TEX. R. EVID. 404(a)(3)(A).

Furthermore, although evidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person

11
acted in accordance with the character, this evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(1)–(2).

The Court of Criminal Appeals has noted that, under Rule 404, evidence of a

complainant’s character for violence is admissible for non-character-conformity

purposes, such as to show that the complainant was the first aggressor, the

defendant’s state of mind, or the reasonableness of the defendant’s fear of danger.

See Torres v. State, 71 S.W.3d 758, 760–62 (Tex. Crim. App. 2002); Mozon v. State,

991 S.W.2d 841, 845–46 (Tex. Crim. App. 1999); London v. State, 325 S.W.3d 197,

205 (Tex. App.—Dallas 2008, pet. ref’d). However, a complainant’s unambiguous

violent or aggressive act needs no explaining, and evidence of a complainant’s

extraneous violent conduct admitted in conjunction with her unambiguous violent

act has no relevance apart from its tendency to prove the complainant’s character

conformity and is therefore inadmissible. Mai v. State, 189 S.W.3d 316, 321 (Tex.

App.—Fort Worth 2006, pet. ref’d); see London, 325 S.W.3d at 205; Reyna v. State,

99 S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref’d). Therefore, before an

extraneous act of the complainant will be admissible to support a claim of self-

defense, two conditions must exist: (1) there must be some ambiguous or uncertain

evidence of a violent or aggressive act by the complainant that tends to show the

complainant was the first aggressor; and (2) the proffered evidence must tend to

12
dispel the ambiguity or explain the complainant’s conduct. Mai, 189 S.W.3d at 321;

Reyna, 99 S.W.3d at 347; see Torres, 71 S.W.3d at 762 (stating that, for purpose of

proving complainant was first aggressor, proffered evidence must explain

complainant’s conduct).

Evidence that is otherwise inadmissible may become admissible when a party

opens the door to such evidence. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009); Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). A party

opens the door by leaving a false impression with the jury that invites the other party

to respond. Hayden, 296 S.W.3d at 554. If a witness’s “blanket assertion of

exemplary conduct” is “directly relevant to the offense charged,” the opposing party

may cross-examine the witness and offer extrinsic evidence rebutting the witness’s

statement. Winegarner v. State, 235 S.W.3d 787, 790–91 (Tex. Crim. App. 2007);

see Daggett v. State, 187 S.W.3d 444, 453 n.24 (Tex. Crim. App. 2005) (“When a

witness makes a broad statement of good conduct or character on a collateral issue,

the opposing party may cross-examine the witness with specific instances rebutting

that false impression, but generally may not offer extrinsic evidence to prove the

impeachment acts.”); Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993)

(“Where the witness creates a false impression of law abiding behavior, he ‘opens

the door’ on his otherwise irrelevant past criminal history and opposing counsel may

expose the falsehood.”).

13
 Even if a party opens the door to rebuttal evidence, the trial court still has

discretion to exclude the evidence under Rule 403. Hayden, 296 S.W.3d at 554; see

TEX. R. EVID. 403 (“The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.”). Courts generally do not permit a party to use

extrinsic evidence to impeach a witness on a collateral issue. Hayden, 296 S.W.3d

at 554. An issue is considered collateral if, beyond its impeachment value, a party

“would not ‘be entitled to prove it as part of his case tending to establish his plea.’”

Id. (quoting Bates v. State, 587 S.W.2d 121, 142 (Tex. Crim. App. 1979) (op. on

reh’g)). “Unless the witness’s testimony created a false impression that is ‘directly

relevant to the offense charged,’ allowing a party to delve into the issue beyond the

limits of cross examination wastes time and confuses the issues.” Id. (quoting

Daggett, 187 S.W.3d at 453 n.24).

Error in the exclusion of evidence is non-constitutional error subject to a harm

analysis under Rule of Appellate Procedure 44.2(b). Ray v. State, 178 S.W.3d 833,

836 (Tex. Crim. App. 2005); see TEX. R. APP. P. 44.2(b) (providing that we must

disregard non-constitutional errors that do not affect defendant’s substantial rights).

Under this analysis, we must examine the record as a whole, and if we are fairly

assured that the error did not influence the jury or had but a slight effect, we conclude

14
that the error was harmless. Ray, 178 S.W.3d at 836; see Casey v. State, 215 S.W.3d

870, 885 (Tex. Crim. App. 2007) (stating that under Rule 44.2(b), we may not

reverse conviction for non-constitutional error if, after examining entire record, we

have “fair assurance that the error did not have a substantial and injurious effect or

influence in determining the jury’s verdict”). In making this determination, we

consider the entire record, including any testimony or physical evidence, the nature

of the evidence supporting the verdict, the character of the alleged error and how it

might be considered in connection with other evidence in the case, the jury charge,

the State’s theory and defensive theory of the case, closing arguments, voir dire, if

applicable, and whether the State emphasized the error. Motilla v. State, 78 S.W.3d

352, 355–56 (Tex. Crim. App. 2002).

B. Analysis

Assuming, without deciding, that Gonzales’s testimony on direct examination

that Jimenez had “always been a good kid” and “never was in trouble” opened the

door to allowing evidence concerning Jimenez’s prior threatening and violent

conduct directed toward Gonzales and that the trial court erred by excluding this

evidence, we conclude that exclusion of this evidence did not harm appellant.

After this Court issued its opinion in this case addressing appellant’s first

issue, the Court of Criminal Appeals granted discretionary review, held that the trial

court erred by limiting appellant’s cross-examination of Gonzales concerning her

15
potential bias against appellant arising out of her interest in a child custody

proceeding involving appellant, Jimenez, and Alice, and conducted a harm analysis.

See Jones, 571 S.W.3d at 770–72. In that analysis, the court addressed the evidence

of the assault on Jimenez and stated:

Appellant testified and admitted that he struck Jimenez. The only
material difference between Appellant’s account and Gonzales’s was
their respective descriptions of Jimenez’s initial assault upon Appellant
which gave rise to Appellant’s claim of self-defense. Gonzales claimed
Jimenez “whacked” or “slapped” the cell phone that was in Appellant’s
hand. Her testimony varied slightly from direct- to cross-examination
with respect to whether this caused Appellant to drop the cell phone,
but she never said Jimenez struck Appellant’s hand. On direct
examination, she testified that she did not see whether the cell phone
dropped. On cross-examination, however, she agreed that Jimenez’s
blow did suffice to knock the cell phone out of Appellant’s hand. By
contrast, Appellant testified that Jimenez “karate-kicked” his hand,
causing the cell phone to drop. Gonzales denied that Jimenez ever
kicked either Appellant or his cell phone. Appellant testified that he
doubted Gonzales could even have seen what happened from her
particular vantage in the garage.

Nothing about this particular dispute could likely have dictated the
outcome of the jury’s resolution of Appellant’s self-defense claim. The
jury was instructed that, in order to find that Appellant struck Jimenez
in self-defense, it must find that her initial attack upon him “created” in
his mind “a reasonable expectation or fear of some bodily injury.” See
TEX. PENAL CODE § 9.31(a) (“[A] person is justified in using force
against another when and to the degree the actor reasonably believes
the force is immediately necessary to protect the actor against the
other’s use of unlawful force.”). The jury’s resolution of the
reasonableness of Appellant’s belief (if any) that Jimenez was about to
cause him bodily injury would not likely have turned on the subtle
difference between Gonzales’s account of Jimenez’s conduct and his
own. Under either account, the jury would likely have concluded that
Jimenez struck at Appellant hard enough to knock the phone out of his
hand, whether she also struck his hand in the process or not. Moreover,
16
 whether she dealt the blow with her own hand or with a “karate kick”
does not seem to be a distinction that would likely sway the jury’s
assessment of the reasonableness of Appellant’s apprehension that
unlawful force was “immediately necessary” to protect himself.

Id. at 771. The court then stated that any cross-examination to expose Gonzales’s

potential bias against appellant “would only marginally have increased the damage

already inflicted upon her general credibility by other evidence that the jury was

permitted to hear.” Id. at 771–72. The court noted that Gonzales’s testimony that,

after the assault, appellant ransacked the house was contradicted by Officer Portillo’s

testimony that he observed nothing indicating the house had been ransacked. Id. at

772. The court also noted, “[T]he jury would have perceived a potential for bias on

Gonzales’s part inherent in the simple fact that she was both the victim’s mother and

the child’s grandmother.” Id. The court stated that it was confident beyond a

reasonable doubt that the jury would have rejected appellant’s self-defense claim

even if it had been aware that Gonzales potentially had an interest in child custody

proceedings involving appellant, Jimenez, and Alice. Id.

Although the Court of Criminal Appeals was addressing the harm flowing

from a different error of the trial court when it conducted its harm analysis, its

analysis is relevant to the question before us now: whether the exclusion of evidence

that Jimenez had been violent and had threatened Gonzales in the past harmed

appellant. It is undisputed that Jimenez was the first aggressor in this incident.

Whether she “whacked” or “slapped” the phone that appellant was holding, or
17
whether she “karate kicked” appellant’s hand, causing him to drop the phone, both

appellant and Gonzales, the two eyewitnesses to the incident, agreed that Jimenez

was the one who introduced a physical component to her argument with appellant.

It is also undisputed that appellant then struck Jimenez. Therefore, the question

before the jury was whether appellant acted in self-defense when he struck Jimenez,

that is, whether appellant was justified in using force against Jimenez because he

“reasonably believe[d] the force [was] immediately necessary to protect [him]

against [Jimenez’s] use or attempted use of unlawful force.” See TEX. PENAL CODE

ANN. § 9.31(a).

Appellant argues that Gonzales, through her testimony that Jimenez had

“always been a good kid” who “never got into trouble,” portrayed Jimenez as a non-

violent person, supporting her version of the assault. He argues that if the jury had

heard that Jimenez had threatened and assaulted Gonzales on several prior occasions,

“this evidence would have cast doubt on both Gonzales’s account of the offense and

her credibility as a whole,” and the evidence “would have provided the jury with

valuable insight into Jimenez’s relevant violent character.” However, as we have

stated, although there was conflicting evidence concerning Jimenez’s precise actions

toward appellant, the evidence was undisputed that she started the physical

altercation. See Jones, 571 S.W.3d at 771 (stating that only material difference

between appellant’s and Gonzales’s versions of incident “was their respective

18
descriptions of Jimenez’s initial assault upon Appellant which gave rise to

Appellant’s claim of self-defense” and that jury was instructed that, to find that

appellant struck Jimenez in self-defense, it had to find that her “initial attack” on

appellant created in his mind “a reasonable expectation or fear of some bodily

injury”) (emphasis added). The jury therefore had evidence before it concerning

Jimenez’s violent character, as both eyewitnesses testified that she took physical

action against appellant before appellant took physical action against her.

Additionally, Gonzales testified in the bill of exception that Jimenez had

threatened her on a “few” occasions and that Jimenez had hit her on “many”

occasions. Gonzales did not provide specific information concerning when these

occasions occurred, nor is there any indication in the record that appellant was aware

of Jimenez’s past violent and threatening behavior toward Gonzales, such that

evidence of Jimenez’s past behavior—and appellant’s knowledge of that past violent

behavior—created a reasonable belief on appellant’s part that his use of force against

Jimenez was immediately necessary to protect himself against Jimenez’s use of

force. See TEX. PENAL CODE ANN. § 9.31(a) (setting out defense of self-defense).

Furthermore, to the extent appellant argues that evidence of Jimenez’s past

violent conduct towards Gonzales undermines Gonzales’s credibility by

demonstrating that Gonzales has a low standard for what she considers to be good

character, we note, as the Court of Criminal Appeals did, that other evidence in the

19
record, most notably Officer Portillo’s testimony contradicting Gonzales’s claims

that appellant ransacked the house after assaulting Jimenez and the potential for bias

against appellant inherent in Gonzales’s status as Jimenez’s mother and Alice’s

grandmother, already negatively impacted her credibility. See Jones, 571 S.W.3d at

771–72. Evidence that Jimenez had threatened and been violent towards Gonzales

in the past “would only marginally have increased the damage already inflicted upon

[Gonzales’s] general credibility by other evidence that the jury was permitted to

hear.” See id.

Finally, the record also included several letters that appellant sent to Jimenez

while he was in custody pending trial. Each of these letters included an affidavit of

non-prosecution—requesting that the district attorney cease prosecution of the case

against appellant—that appellant drafted and attempted to persuade Jimenez to sign.

In the letters, appellant repeatedly asked Jimenez to speak to the district attorney and

the trial court and state that the assault did not happen, that Jimenez had discovered

that appellant was being unfaithful to her and that she fabricated the assault because

she was angry with him, and that she lied to the police about the incident. Appellant

stated, “I already know you wouldn’t testify against me so why wouldn’t you lie for

me.”

When considering the entire record, we conclude that any error in the

exclusion of evidence that Jimenez had threatened and been violent towards

20
Gonzales in the past did not influence the jury or had but slight effect and therefore

was harmless.2 See Casey, 215 S.W.3d at 885; Ray, 178 S.W.3d at 836; see also TEX.

R. APP. P. 44.2(b) (providing that we disregard non-constitutional errors that do not

affect defendant’s substantial rights).

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

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

2
Appellant also argues that the trial court erred in excluding evidence that someone
had let the air out of the tires on Gonzales’s car on the day of trial, which delayed
the start of testimony. In the bill of exception, Gonzales testified that this happened
to other people in the area as well, not only to her. She also stated that Jimenez knew
the date Gonzales was supposed to testify in appellant’s trial, but she did not believe
Jimenez was the one who let the air out of her tires, and she did not believe Jimenez
had a motive to do this. There is, therefore, no evidence that Jimenez was the one
who disabled Gonzales’s car on the day of trial by letting the air out of the tires.
Instead, there is only defense counsel’s speculation that Jimenez was responsible.
The trial court did not err by excluding this speculative and irrelevant evidence. See
TEX. R. EVID. 401 (providing that evidence is relevant if it has any tendency to make
fact of consequence more or less probable than it would be without evidence).
21