Gerald Tomlinson v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00331-CR
__________________

GERALD TOMLINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 25070
__________________________________________________________________

MEMORANDUM OPINION

Charlie Daniel Jr. died from gunshot wounds he received on November 2,

2018. A grand jury indicted Appellant Gerald Wade Tomlinson for “intentionally

and/or knowingly caus[ing] the death of [] Charlie Daniel, Jr., by discharging a

firearm in the direction of the said Charlie Daniel, Jr.” Tomlinson pleaded “not

guilty,” and a jury found Tomlinson guilty of murder and assessed punishment at

fifteen years of confinement. See Tex. Penal Code Ann. § 19.02. Tomlinson

appealed, and in two issues he challenges his conviction. We affirm.

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 State’s Case in Chief

Testimony of Katherine Parker

Katherine Parker testified that she is the dispatch supervisor in the Hardin

County Sheriff’s Office, and she receives 911 calls. Parker identified State’s Exhibit

1 as a recording of a 911 call from November 2, 2018, pertaining to the case against

Tomlinson, and the recording was published to the jury.

In the recording, the caller identifies herself as Connie Lindsey with Basil

Oilfield Services, and she reported that a woman named Jacklyn Sanders was in the

Basil office with a gunshot wound to her leg. Lindsey told the 911 dispatcher that

Sanders said her friend, Charlie Daniel, who was coming to pick her up, was shot

twice and was still in his truck. The dispatcher asked who shot them, Lindsey asked

Sanders, and Sanders replied, “Wade Tomlinson.”

Testimony of Sergeant Grant McDowell

Sergeant Grant McDowell, with the patrol division of the Hardin County

Sheriff’s Office, testified that on November 2, 2018, he was dispatched to Basil

Oilfield Service in Saratoga about 3:30 p.m. When he arrived, another deputy was

already on the scene, and first responders were tending to a woman with a gunshot

wound. McDowell and Deputy Leviner went to the Tomlinson residence nearby on

Cotton Road, he helped secure the scene where people had arrived, and he checked

inside the residence, but he did not find Tomlinson inside. McDowell found a work

2
truck with “a deceased individual in the passenger side -- half in, half out.” A while

later, dispatch advised that Tomlinson’s vehicle had been located at a residence on

Flowers Drive. McDowell went to the location on Flowers Drive about two hours

after the initial call, he agreed he wore a body camera, and a recording from his body

camera was admitted as State’s Exhibit 3 and published to the jury. McDowell

testified he found Tomlinson in the house, on the floor, and covered with a blanket.

On cross-examination, McDowell testified that he had not dealt with Tomlinson

before this incident, McDowell thought Tomlinson sounded “apologetic” after he

was handcuffed, and McDowell recalled that Tomlinson said he “told her not to

bring anyone else to his property[.]”

In the bodycam video, Tomlinson tells McDowell that he had been robbed

four times since February losing about $12,000 worth of property, but because his

son was the legal owner of the property, law enforcement had told him his son

needed to make the complaint about the thefts. Tomlinson also tells McDowell he

did not know where his pistol was and “that girl had that pistol last time I saw her.”

Tomlinson also states, “I don’t know how many times I shot[,]” and “she got hit in

the crossfire.” Tomlinson states “that guy” came at him with a pipe or a piece of

metal, and Tomlinson told him to “get in his truck and get the h--- off my property.”

Tomlinson tells McDowell “I had every intention of turning myself in as soon as I

could get an attorney,” and that he was at the house on Flowers Street “to hide out”

3
until he could contact an attorney because he could not find his phone. He also tells

McDowell, “I’m not even supposed to have a gun, my son loaned me that gun.”

Testimony of Kendra Simmons

Kendra Simmons testified that she is an investigator with the Hardin County

Sheriff’s Office, and she was assigned as the lead investigator in this case. Simmons

responded to a call where she found Jacklyn Sanders, who was bloody, upset, and

excited. Sanders had already been treated and had her leg bandaged, and she was

later taken to the hospital by helicopter. Sanders said she was shot closer to

Tomlinson’s house and that a second victim was shot in a vehicle. After Sanders was

transported to the hospital, Simmons went to an RV on Tomlinson Road off Cotton

Road where Tomlinson lived, and she then prepared two sketches of the area, which

were drawn and measured by Simmons. The sketches were admitted as State’s

Exhibits 6 and 7. Charlie Daniel was deceased when Simmons arrived at the

property. Simmons also testified that the sketches depicted where Simmons found

shell casings in front of and next to the truck as well as “blood and flesh” in front of

the truck. Simmons agreed that the photograph in State’s Exhibit 21 depicts Daniel

“falling out of the truck[,]” and she testified that Daniel was moved to the ground,

as depicted in Exhibit 22, after the Justice of the Peace had arrived at the scene. She

also testified that Exhibits 21 and 22 depict Daniel holding a metal pipe in his right

hand, and she included that detail in her report. Simmons testified that the

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photographs in State’s Exhibits 22 through 24 show four bullet wounds on Daniel

that went “through and through.” She also agreed that she took photographs of the

autopsy, and the photographs show bullet wounds to Daniel.

Testimony of Jacklyn Sanders

Sanders identified the defendant as Wade Tomlinson, and she testified that he

was a friend. She testified that she cleaned his house and washed his clothes, and she

lived at Tomlinson’s house twice. She also testified that she knew Charlie Daniel Jr.,

who was her boyfriend and her best friend. She and Daniel had been together for

about a year, then broke up, and got back together the day before the incident, but a

few days before the incident, she had been sleeping in a cemetery.

Sanders testified that Tomlinson lived in a camper trailer and had a washer,

dryer, and refrigerator in another building on the property. Sanders recalled that on

November 2, 2018, she was doing Tomlinson’s laundry and the incident occurred as

she was carrying Tomlinson’s clothes from the dryer into the home. Sanders testified

that she and Daniel had gotten back together, and the night before the incident she

had stayed with Daniel. She was going to move in with him, and Daniel had come

to pick up her things from Tomlinson’s camper. Sanders recalled that Tomlinson had

told her “[d]on’t bring anybody on my property[,]” so Daniel had to drop her off

while she did Tomlinson’s laundry and she packed. Sanders testified that State’s

Exhibit 35 was a copy of texts and messages between Sanders and Tomlinson,

5
including a text she sent to Tomlinson on November 2, 2018, that said “Hello, friend.

Are you awake yet? I’m on my way[,]” and the exhibit also showed that she missed

a call from Tomlinson “seconds before[]” that text.

Sanders recalled that when Daniel arrived, he cut off the engine and parked at

the end of the road because no one was allowed on Tomlinson’s property. She had

completed Tomlinson’s laundry, and she had packed her drawing books, clothes,

and shoes and had them sitting in front of the washroom. As she walked out of the

washroom, she saw Tomlinson walking back up the road from where Daniel’s truck

was parked. She then saw Tomlinson walking towards her, she noticed Tomlinson

had a gun, and she froze. Even though Tomlinson knew Daniel was coming to pick

up Sanders, Tomlinson asked her, “Is that guy down there to rob me? Are y’all

setting me up? You’re going to steal all my stuff. [] You’re not leaving. You’re not

going nowhere.”

Sanders told Tomlinson to put down the gun and said she was leaving, but

Tomlinson told her to turn around and put her hands behind her back. Sanders did

not turn around, she told him she was not going to let him shoot her in the back, and

then he shot her in the leg. Sanders heard the truck start, she knew Daniel was

coming to get her because he had heard the gunshot, and as soon as she saw Daniel’s

truck, she told Daniel to stop. Daniel stayed in the truck, and Sanders got in on the

passenger side, but Tomlinson opened the door on Daniel’s side, Daniel did not say

6
anything, and he kept his hands on the steering wheel. Daniel told her to run, so she

jumped out of the truck and ran. Sanders testified that she saw Daniel get shot twice:

he was shot once in the stomach, when his hands were still on the steering wheel,

and again in his chest, and that shot also hit Sanders in the shoulder.

Sanders thought that Tomlinson knew what he was doing, and his actions were

intentional and planned. According to Sanders:

He was standing in the door. The door was open. [Tomlinson] was
standing in the door outside the truck with the gun about 12 inches from
Charlie’s side, still telling me I’m not leaving. . . .
....
Why shoot Charlie? How are you going to argue with me that I’m not
leaving, and you kill a man who doesn’t take his hands off the steering
wheel, never says a word to him, not even an aggressive gesture. He
doesn’t get loud with him. No attitude. He never said a word to that
man.

The first call for help occurred when Sanders got to the Basil Oil Company

office. Sanders identified State’s Exhibit 27 as a photograph of the front of her legs

on the day of the incident and State’s Exhibit 36 as a photograph of her about half a

mile from Tomlinson’s house, at the Basil Oil Company office.

Sanders denied that she or anyone took any of Tomlinson’s property, and she

denied seeing a pipe in Daniel’s hand when she got out of the truck. According to

Sanders, Daniel did not know Tomlinson and had not ever been to Tomlinson’s

property. On cross-examination, Sanders agreed that she had told Tomlinson on

October 30 that she was “tired of living this way[,]” that Tomlinson had kicked her

7
out, and she knew she was pregnant by her current boyfriend at that time. Sanders

agreed she was aware that Tomlinson had had problems with people stealing from

him, but she said she had never stolen from him. Sanders testified she had not fought

or argued with Tomlinson that day, but she testified that Tomlinson was aware that

she had been texting and calling Daniel, and Tomlinson knew that Daniel was

coming to pick her up.

According to Sanders, she had prior criminal convictions in other counties for

abandoning a child with intent to return, for credit card abuse, and for misdemeanor

theft. Sanders agreed she used to “smoke dope[,]” but she stated she did not smoke

it anymore, since the incident.

Testimony of Dennis Allen

Dennis Allen testified that he works in criminal investigations for the Hardin

County Sheriff’s Office, and he was formerly the Chief of Police in Silsbee. Allen

agreed that he had interviewed Tomlinson at the Sheriff’s Office in Kountze, the

interview was recorded, and he identified State’s Exhibit 37 as a recording of his

interview with Tomlinson. According to Allen, during his interview of Tomlinson,

Tomlinson said he was an old man, and he did not want “to get his ass kicked.”

Allen agreed that people use pipes to hurt other people, but not typically in a

vehicle because it would require swinging or hitting. According to Allen, when a

person dies while they are clutching something, the grip becomes very firm due to

8
rigor—a “death grip[,]”—and the item being clutched must be pried away. Allen did

not find any rigor when he checked Daniel at the scene. Allen testified that he

observed a pipe in Daniel’s hand and, in Allen’s opinion, “it was enough room in

between the fingers and the thumb [that] the pipe could have been placed in that

hand. . . . It was an open grip. It was not a clinch[.]” On cross-examination, Allen

testified that in a traumatic death, muscles would constrict and close, and he agreed

that a pipe could be used as a deadly weapon. Allen testified that he did not take any

fingerprints from the pipe.

Allen agreed that four nine-millimeter shell casings were found at the scene

that were consistent with the wounds he observed and that would have been fired by

a semi-automatic pistol. Allen also testified that Daniel’s truck was a work truck that

had a console that sits a little higher than normal, so that “if you were going to crawl

out from the driver’s side to the passenger side, you would have to go up and over

to get out the other side of the door. You couldn’t just slide across.” On cross-

examination, Allen would not agree that if Daniel had been reaching for a pipe, it

would be a threatening situation to a person approaching him, and Allen added, “you

don’t take a pipe to a gun fight[.]”

Testimony of Dr. John Wayne

Dr. John Wayne is a forensic pathologist employed by Diagnostic Pathology

Services in Beaumont, and he performed the autopsy on Charlie Daniel Jr. Wayne

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testified that Daniel had three gunshot wounds. One entered his left arm, went

through his chest, and came to rest on the right side of his ribs. Another went in his

back, just above his gluteus, went through his chest, and rested inside the chest

cavity. A third entered below his left armpit, crossed the chest cavity, went through

his heart, and exited. Dr. Wayne determined that the cause of death was gunshot

wounds. On cross-examination, Wayne agreed that a toxicology analysis showed the

presence of methamphetamines and another substance. Wayne testified that rigor

mortis—stiffening of the body’s musculature—may start as early as an hour after

death or as late as twelve to eighteen hours after death, and heat and humidity and

the presence of a stimulant (such as cocaine or methamphetamine) can accelerate the

process.

Defense Witnesses

Testimony of Tina Flowers

Tina Flowers testified that she is Tomlinson’s friend and she had known

Tomlinson for a couple of months at the time of the incident. Flowers agreed that

Tomlinson was found at her home on the day of the incident, but she was not home,

and she was out shopping at the time he arrived. She returned home from shopping

and saw Tomlinson on the back porch, and he was “upset[]” and was saying “I’ve

got to get ahold of my lawyer. I’ve got to turn myself in.” According to Flowers,

Tomlinson asked her not to tell the police he was at her home, and he told her he had

10
shot someone on his property who was “coming at him.” Flowers testified that she

told him he needed to turn himself in.

Testimony of Lynette Vann

Vann testified that she had known Tomlinson since she was a teenager, and

she was at Flowers’s house on the day of the incident. According to Vann,

Tomlinson looked “very scared,” he told her he had just shot someone, he was trying

to defend himself from someone who had a metal pipe, and “he didn’t want to have

to do what he did.” On cross-examination, Vann agreed that she was at Flowers’s

house when Tomlinson arrived, but that Flowers’s son was not there, and no one else

was at the house but Tomlinson. Vann agreed she lied to the police about Tomlinson

leaving in a white truck because she was scared and was trying to help Tomlinson

find a lawyer before the police took him away. According to Vann, Tomlinson went

to Flowers’s house because he did not have a phone, and he wanted a lawyer before

he turned himself in. Vann testified that her phone was not “in service” that day.

When asked whether Tomlinson had sought out the police to tell them he had to kill

someone in self-defense, Vann responded “You don’t have to. It’s a small town.”

Vann agreed that it took the police about an hour and a half to find Tomlinson, and

when the police arrived, Tomlinson did not tell them what happened because he “was

probably terrified.”

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Testimony of Angela Collier

Angela Collier testified that, at the time of the incident, she worked at a store

in Saratoga, and she knew Tomlinson because he often came in for breakfast. Collier

agreed that she talked with Tomlinson a few days before the incident, and she got

the impression he was concerned and apprehensive about a woman who was staying

at the cemetery. Collier testified that she advised Tomlinson not to go to the

cemetery, that it was not safe. Collier thought Tomlinson was “very nice [and] very

considerate,” and she got the idea that Tomlinson wanted to help the woman.

Testimony of Deputy James Tinnier

Deputy James Tinnier testified that he is a patrol deputy for the Hardin County

Sheriff’s Office, and on the day of the incident he went to the Basil office, where he

talked with Jacklyn Sanders after Sanders had spoken with Connie Lindsey. Tinnier

could not remember who was shot first.

Testimony of Deputy Zachary Leviner

Deputy Zachary Leviner with the Hardin County Sheriff’s Office testified that

he went to the scene of the incident with Sergeant McDowell. According to Leviner,

a constable and some first responders were present when they arrived. As they

arrived, Leviner saw a truck parked, the passenger-side door open, “[a] white male

hanging out the passenger side. Bottom half of, I guess you’d say, his legs were in

the vehicle and torso on the ground[,]” and the man had a pipe in his right hand.

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Leviner recalled that the truck was running at the time. Leviner also recalled seeing

shell casings and blood droplets on the ground, but they did not find any guns. When

asked about his report, Leviner did not recall that the report said one shell casing

was white and two were yellow, but he did not dispute it.1 Leviner agreed that the

deceased was Charlie Daniel.

Testimony of Kendra Simmons

Simmons agreed that a bag that was found in Daniel’s truck belonged to

Jacklyn Sanders, and it contained a pill bottle, “spiral notebooks, miscellaneous

paperwork, things like that[,]” but she did not recall clothes being in the bag. The

bag was introduced into evidence as Defense Exhibit 2, and Simmons testified that

the pill bottle was a prescription for Codeine Number 3 for Gerald Tomlinson, and

there were also unopened bags of syringes in the bag. Simmons examined other bags

of evidence, and she testified that they contained nine caliber shell casings—one was

silver, and the others were brass. Simmons denied finding any white shell casings at

the scene. On cross-examination, Simmons testified that Sanders told her that

1
On rebuttal, Leviner examined four shell casings in evidence, and he testified
that one was “white metal” and the others were “yellow metal.” Leviner agreed that
some people would call the white metal “silver,” but “white” and “yellow” refer to
colors, and “silver” and “gold” refer to the type of metal. He agreed that when he
previously testified about finding a white shell casing, he was talking about a casing
that was a “white metal color[.]”
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Tomlinson had opened the driver’s side door of the truck and that she was at the

property to collect her clothing and to take a shower.

Testimony of Amanda Jacobs

Amanda Jacobs testified that she grew up with Jacklyn Sanders. On cross-

examination, Jacobs testified that she once had a run-in with Sanders, and that

Sanders was “not one of those [friends] you want to keep around. . . . She’s trouble.”

On re-cross, Jacobs testified that Sanders stole her driver’s license, and Jacobs also

lost her credit cards.

Testimony of Connie Lindsey

Connie Lindsey testified she is employed by Basil Oilfield Services, and she

was working there on November 2, 2018. She agreed she talked with the 911

dispatcher that day and that Sanders had told her “Charlie had been shot twice, and

she had been shot once[.]” According to Lindsey, Sanders told her that Tomlinson

had told her he did not want anyone on his property, so she told Daniel to meet her

at the end of the road, where the Basil office is located, and she told him she would

meet him there.

The defense filed a Motion for Instructed Verdict, arguing that the State failed

to prove beyond a reasonable doubt that Tomlinson intentionally or knowingly

caused Daniel’s death. The defense also argued that the State was required to

disprove Tomlinson’s self-defense claim, and that it failed to prove beyond a

14
reasonable doubt that self-defense does not apply to Tomlinson’s conduct. The court

denied the motion. The jury found Tomlinson guilty of murder. After receiving

additional evidence on punishment, the jury assessed punishment at fifteen years of

confinement.

Sufficiency of the Evidence

In Appellant’s first issue, he argues that the trial court erred by denying his

motion for instructed verdict because of “the lack of legally sufficient evidence[.]”

According to Appellant, the trial court improperly inferred that Appellant intended

the results of his conduct, which denied Appellant the right to have each and every

element of the indictment proved beyond a reasonable doubt.

We review the denial of a motion for instructed verdict under a sufficiency

analysis. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) (“A

challenge to the trial judge’s ruling on a motion for an instructed verdict is in

actuality a challenge to the sufficiency of the evidence to support the conviction.”)

Evidence is sufficient to support a conviction if a rational jury could find each

essential element of the offense beyond a reasonable doubt. Metcalf v. State, 597

S.W.3d 847, 855 (Tex. Crim. App. 2020). When reviewing the sufficiency of the

evidence, we consider all the admitted evidence in the light most favorable to the

verdict. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the credibility of

15
a witness’s testimony and the weight to assign to that testimony. Jackson, 443 U.S.

at 319; Metcalf, 597 S.W.3d at 855. The jury can believe all, some, or none of a

witness’s testimony. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974).

Juries can draw reasonable inferences from the evidence so long as each inference

is supported by the evidence produced at trial. See Jackson, 443 U.S. at 319; Hooper,

214 S.W.3d at 16-17. If the record contains conflicting inferences, we must presume

that the factfinder resolved such facts in favor of the verdict and defer to that

resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

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

of an individual[.]” Tex. Penal Code Ann. § 19.02(b)(1). “Murder is a ‘result of

conduct’ offense, which means that the culpable mental state relates to the result of

the conduct, i.e., the causing of the death.” Schroeder v. State, 123 S.W.3d 398, 400

(Tex. Crim. App. 2003). A person acts intentionally with respect to a result of his

conduct when it is his conscious objective or desire to cause the result. Tex. Penal

Code Ann. § 6.03(a). A person acts knowingly with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result. Id.

§ 6.03(b).

In a homicide case, the defendant’s state of mind is a question of fact for the

jury to determine, and the jury may infer intent “from any facts in evidence which it

16
determines proves the existence of such intent to kill, such as the use of a deadly

weapon.” Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (citing Hall

v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967)). “It is both a common-sense

inference and an appellate presumption that a person intends the natural

consequences of his acts and that the act of pointing a loaded gun at someone and

shooting it toward that person at close range demonstrates an intent to kill.” Ex parte

Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005) (internal citations

omitted). Intent to murder can be inferred from circumstantial evidence, such as a

defendant’s acts, words, and the extent of the victim’s injuries. See Ex parte

Weinstein, 421 S.W.3d 656, 668-69 (Tex. Crim. App. 2014). Evidence of flight

reflects on a defendant’s consciousness of guilt of the crime charged. See Yost v.

State, 222 S.W.3d 865, 875 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)

(citing Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (en banc)).

Appellant’s brief states that “[o]nce the issue of self-defense is raised, the

State has the burden of proof beyond a reasonable doubt that the defendant did not

act in self-defense[,]” citing to Tidmore v. State, 976 S.W.2d 724, 729 (Tex. App.—

Tyler 1998, pet. ref’d). The issue of self-defense is for the jury to determine. Saxton

v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Where a defendant claims

self-defense, the defendant bears the burden of production, which requires the

production of some evidence that supports the defense. See Zuliani v. State, 97

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S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Tex. Penal Code Ann. § 2.03;

Saxton, 804 S.W.2d at 914). Once the defendant produces such evidence, the State

then bears the burden of persuasion to disprove the defense. Id. The State is not

required to produce evidence that refutes the claim of self-defense, but it must prove

its case beyond a reasonable doubt. Id. A jury is free to accept or reject the evidence

on self-defense, and a jury verdict of guilty is an implicit finding against the

defensive theory. See id.; Saxton, 804 S.W.2d at 914.

Appellant concedes that it is “undisputed that Appellant Shot Charlie Daniel,

Jr., causing his death.” Because the jury charge included an instruction on self-

defense, yet the jury found Appellant guilty, the jury implicitly rejected Appellant’s

claims that he acted in self-defense. See Zuliani, 97 S.W.3d at 594; Saxton, 804

S.W.2d at 914. The jury could have inferred the requisite intent from Appellant’s

use of a deadly weapon. See Brown, 122 S.W.3d at 800. The jury could have

disbelieved that Appellant “reasonably believe[d] the force [was] immediately

necessary to protect the actor against the other[’]s use or attempted use of unlawful

force[,]” as the jury charge provided. The jury could have believed Sanders’s

testimony that Daniel’s hands were on the steering wheel at all times. The jury, as

sole factfinder, could have disbelieved statements Appellant made to Flowers and

Vann that he was defending himself from someone who was “coming at him.” The

jury could also have inferred consciousness of guilt from the evidence that Appellant

18
fled the scene and hid under a blanket at Flowers’s house. See Bigby, 892 S.W.2d at

884; Yost, 222 S.W.3d at 875.

“Defensive evidence which is merely consistent with the physical evidence at

the scene of the alleged offense will not render the State’s evidence insufficient since

the credibility determination of such evidence is solely within the jury’s province

and the jury is free to accept or reject the defensive evidence.” Saxton, 804 S.W.2d

at 914. Having reviewed all the evidence in the light most favorable to the verdict,

we conclude the jury rationally could have found each element of the offense beyond

a reasonable doubt and could have rejected Appellant’s claim of self-defense. We

overrule Appellant’s first issue.

Admission of Evidence

Appellant’s second issue argues that the trial court erred in denying evidence

of “a previous similar act of violence by the deceased after some evidence of

aggression by the deceased against Appellant had been presented before the jury.”

According to Appellant, the evidence was relevant to show the deceased was the

first aggressor by demonstrating his intent, motive, or state of mind.

At trial, defense counsel attempted to call a witness who would testify to a

previous instance where Daniel “exited a vehicle with a shotgun and discharged the

weapon[,]” striking the proposed witness, and for which Daniel was convicted of

aggravated assault. Defense counsel asserted that the proffered testimony was being

19
offered to show a specific act where Daniel was the aggressor and would show the

state of mind of the deceased. The defense also argued that there was evidence of an

act of aggression by Daniel because he came onto Tomlinson’s property when he

had been told not to. Defense counsel argued that the witness’s testimony was

admissible under Torres v. State, 117 S.W.3d 891 (Tex. Crim. App. 2003). The State

argued that Torres was distinguishable because the witness the defense sought to

have testify in this case was not a witness to the shooting in 2018 for which

Tomlinson was indicted and would not “be able to explain that on[e] person or the

other was even [the] first aggressor.” The trial court excluded the testimony and

stated:

Well, I’ve studied this. I know y’all studied this, and I also
considered the balancing factors that are inherent in the ruling on
admissibility as to the fact that this is an 18-year-old incident involving
the deceased. Given my understanding of the Torres case and the
application of 404, I do not think that it should come in, given all the
circumstances.

We review a trial court’s decision to admit extraneous offense evidence for an

abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009). “As long as the trial court’s ruling is within the ‘zone of reasonable

disagreement,’ there is no abuse of discretion, and the trial court’s ruling will be

upheld.” Id. at 343-44 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh’g)); State v. Mechler, 153 S.W.3d 435, 439-40 (Tex.

Crim. App. 2005). If the trial court’s decision is correct on any theory of law
20
applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344;

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

“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 acted in

accordance with the character.” Tex. R. Evid. 404(b)(1). “Rule 404(b) sets out an

illustrative, not exhaustive, list of exceptions to the prohibition against admitting

evidence of extraneous offenses including ‘proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.’” Daggett

v. State, 187 S.W.3d 444, 451 n.13 (Tex. Crim. App. 2005) (quoting Tex. R. Evid.

404(b)) (emphasis omitted); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App.

2005). Even if evidence is admissible under Rule 404(b), it may still be inadmissible

under Rule 403 if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, misleading the jury, considerations of

undue delay, or needless presentation of cumulative evidence. Casey v. State, 215

S.W.3d 870, 879 (Tex. Crim. App. 2007); see also Tex. R. Evid. 403.

“The rules of evidence permit the defendant to offer evidence concerning the

victim’s character for violence or aggression on two separate theories when the

defendant is charged with an assaultive offense[.]” Ex parte Miller, 330 S.W.3d 610,

618 (Tex. Crim. App. 2009).

First, the defendant may offer reputation or opinion testimony or
evidence of specific prior acts of violence by the victim to show the
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 “reasonableness of defendant’s claim of apprehension of danger” from
the victim. This is called “communicated character” because the
defendant is aware of the victim’s violent tendencies and perceives a
danger posed by the victim, regardless of whether the danger is real or
not. This theory does not invoke Rule 404(a)(2) because Rule 404 bars
character evidence only when offered to prove conduct in conformity,
i.e., that the victim acted in conformity with his violent character. . . .

Second, a defendant may offer evidence of the victim’s character trait
for violence to demonstrate that the victim was, in fact, the first
aggressor. Rule 404(a)(2) is directly applicable to this theory and this
use is called “uncommunicated character” evidence because it does not
matter if the defendant was aware of the victim’s violent character. The
chain of logic is as follows: a witness testifies that the victim made an
aggressive move against the defendant; another witness then testifies
about the victim’s character for violence, but he may do so only through
reputation and opinion testimony under Rule 405(a).

Id. at 618-19 (internal footnotes omitted).

According to Appellant, Torres v. State, 117 S.W.3d 891 (Tex. Crim. App.

2003), is “remarkably similar to our case[.]” And, Appellant contends it supports his

argument that the trial court erred in excluding the proffered testimony. In Torres,

the defendant was convicted of the murder of Valdez. Id. at 893. Valdez had been in

a relationship with Roxanne, and they lived in the home of Roxanne’s aunt, Diane.

Id. The relationship was turbulent, and Valdez and Roxanne broke up after Valdez

assaulted Roxanne because he suspected she was seeing other men. Id. Roxanne

went to stay with friends for a few days, during which time Torres learned from

Roxanne that Valdez had assaulted her previously and Valdez was looking for

Torres. Id. After Valdez moved out of the aunt’s house, Roxanne moved back into

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her aunt’s house. Id. Torres then went to stay with Roxanne at her aunt’s house, and

Torres brought a gun with him. Id. at 893-94. Early one morning, Roxanne and

Torres heard a noise outside, Roxanne saw Valdez climbing the balcony, and she

went to her aunt’s room to call 911. Id. at 894. While Roxanne was on the phone

with the police, Torres shot and killed Valdez. Id.

Torres was tried for murder and claimed he acted in self-defense. Id. Both

Roxanne and Diane were called to testify. Id. Roxanne testified that, on the morning

of the murder, she saw Valdez climbing onto the balcony, shouted “It’s him,” and

ran to her aunt’s bedroom to call 911. Id. During Diane’s testimony, the defense

sought to introduce character evidence of Valdez through Diane to show that Valdez

was the first aggressor, and the State objected. Id. During voir dire of Diane, she

testified that two days before his death, Valdez had climbed through the second-

story window in her bedroom and asked for Roxanne. Id. When Diane told him she

did not know where Roxanne was, Valdez replied, “If you don’t tell me I’m going

to do something to you and your kids[,]” and Diane feared for her life. Id. The trial

court excluded Diane’s testimony, and Torres was convicted. Id. On appeal, the court

of appeals affirmed the conviction. Id.

The Court of Criminal Appeals reversed, explaining that Diane’s testimony

tended to raise the issue of self-defense, the act of climbing to a second-story

“uninvited and unannounced, at 6:30 a.m. constitutes an act of aggression[,]” the

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behavior was similar to Valdez’s behavior just prior to when he was shot, and

Diane’s testimony “is therefore appropriate to allow the appellant to introduce the

previous act of climbing in the window and threatening Diane and her children

because it may help clarify Valdez’s purpose in climbing up the balcony[]” at the

time the defendant shot him. Id. at 895. As stated in Torres, “such specific acts of

violence are admissible only to the extent that they are relevant apart from showing

character conformity.” Id. at 894. The Court explained that:

. . . specific, violent acts are relevant apart from showing character
conformity in the context of proving that the deceased was the first
aggressor by demonstrating the deceased’s intent, motive, or state of
mind. Because the specific act is probative of the deceased’s state of
mind or intent, the witness must know, but the defendant need not know
of the act.

Id. at 894-95 (citations omitted).

We find Torres factually distinguishable. In Torres, the prior specific act of

violence occurred only about a week before the crime for which Torres was

prosecuted, and the testimony from Diane about the prior specific act was relevant

and could “shed light on Valdez’s motive in entering the apartment.” Id. at 895-96.

By contrast, in the case at bar, the proposed witness was offered to testify about a

specific act that Daniel committed about eighteen years before the incident for which

Tomlinson was prosecuted, and the proffered evidence did not show that the

proposed witness’s testimony would shed light on the victim’s behavior or motive

on the day that he was shot by Tomlinson. Appellant did not argue at trial and does
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not argue on appeal that he was aware of the previous incident about which the

witness would testify. Therefore, the testimony could not have been offered as

“communicated character” evidence, which requires the defendant to be “aware of

the victim’s violent tendencies and perceives a danger posed by the victim,

regardless of whether the danger is real or not.” See Miller, 330 S.W.3d at 618.

Rather, Appellant contends that the witness’s testimony was relevant to the issue of

who was the first aggressor in the confrontation between Daniel and Tomlinson—to

introduce the testimony as “uncommunicated character” evidence. See id. at 619.

Tomlinson was not entitled to use the proffered specific act of prior violence to show

that Daniel was the first aggressor on the day he was shot. See id. at 620. Such use

is an attempt to prove Daniel’s conduct in conformity with his allegedly violent

character and is prohibited by rules 404(a) and 405(a). See id. 2 Therefore, we cannot

say that the trial court abused its discretion in excluding the proffered testimony. We

overrule Appellant’s second issue.

Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.

2
See also Hawthorne v. State, No. 09-10-00034-CR, 2011 Tex. App. LEXIS
1728, at **10-13 (Tex. App.—Beaumont Mar. 9, 2011, no pet.) (mem. op., not
designated for publication) (applying Torres and concluding that the defendant was
not entitled to use evidence of a prior specific act of violence to show that the victim
was the first aggressor).
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 AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on May 26, 2021
Opinion Delivered July 14, 2021
Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.

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