Opinion filed September 29, 2023
In The
Eleventh Court of Appeals
__________
No. 11-19-00274-CR
__________
DIMAS GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 15-7565
OPINION
The jury convicted Dimas Gonzales1 of first-degree murder and assessed his
punishment at confinement for a term of forty-five years in the Institutional Division
of the Texas Department of Criminal Justice. Appellant challenges his conviction
in twenty-two issues.
1
We note that Appellant’s name as it appears in the indictment is “Dimas Gonzales” and that the
name reflected in the judgment is “Dimas Gonzalez.”
Appellant’s fifteenth, sixteenth, and seventeenth issues concern the manner in
which the trial court conducted the initial hearing on Appellant’s motion for new
trial. We previously abated this appeal and remanded this cause to the trial court to
conduct a new evidentiary hearing on Appellant’s motion for new trial. A copy of
our August 12, 2021, abatement order is attached as an appendix to this opinion. We
expressly incorporate the abatement order as a part of the opinion in this appeal.
In our abatement order, we determined that the trial court abused its discretion
in conducting an evidentiary hearing on a motion for new trial when it (1) held the
hearing in a private conference room, rather than a public courtroom; and (2) denied
Appellant’s bench warrant and required Appellant to appear at the hearing via
telephone. We sustained Appellant’s fifteenth through seventeenth issues by
ordering that the trial court conduct a new evidentiary hearing on Appellant’s motion
for new trial that complied with Appellant’s Sixth Amendment right to a public
hearing and statutory right under Article 33.03 of the Texas Code of Criminal
Procedure to be “personally present” at his motion-for-new-trial hearing. In
response to our abatement order, the trial court conducted a second evidentiary
hearing on Appellant’s motion for new trial. The trial court denied Appellant’s
motion after the second evidentiary hearing. On the reinstatement of this appeal, we
now address Appellant’s nineteen remaining issues. We modify and affirm.
Background Facts
A summary of the events leading up to the incident at issue, and the
connections between the parties involved, is necessary. Nichole Canady and
Appellant’s nephew, Bernardo “Bernie” Gonzalez, had been dating for a year. They
were living together in an efficiency apartment on Nichole’s aunt’s property, and
Bernie had received permission from Nichole’s parents to propose to her.
Bernie also had permission from Nichole and her parents to drive Nichole’s car. In
2
March 2015, Bernie crashed Nichole’s Ford Fusion into a tree in Lamesa. The car
was totaled.
Nichole purchased a Mercury Montego to replace the Ford Fusion. On
May 17, 2015, about two months after the Ford Fusion crash, Bernie was driving the
Montego, with his brother Nicholas Gonzalez as a passenger, and fell asleep at the
wheel. After Bernie awoke and “jerked the wheel” back towards the road, the
vehicle rolled onto its passenger side and incurred extensive damage before falling
back onto all four tires.
Bernie called Nichole and told her about the accident. Nichole broke up with
Bernie at that time, telling him that he needed to remove his belongings from the
apartment. Once he returned to the apartment, Bernie gathered his things and asked
Gregorio Gonzalez, which is Bernie and Nicholas’s father, to pick them up.
Nichole called her mother, Mistry Canady, at around 5:00 p.m. to tell her that
Bernie had crashed the Montego. Nichole’s father, Bernard Canady, called Mistry
at around 8:00 p.m. to tell her that he was on his way home from work. When
Bernard arrived home at around 8:30 p.m., Mistry told him that Bernie had crashed
another vehicle. Mistry testified that Bernard was “upset” and quickly left for
Nichole’s apartment to look at the damage to the vehicle. Mistry tried calling
Bernard twice after he left, but he did not answer the phone. Mistry also called
Nichole to tell her that her father was on the way. Nichole testified that Mistry
seemed worried about Bernard when she called.
Nichole testified that Bernard arrived at her apartment when it was still “kind
of daylight” to look at the damage to the Montego. Nichole estimated that Bernard
arrived about fifteen-to-twenty minutes after Bernie left. Nichole testified that
Bernard was “mad” about the car. Constella Bolton, Nichole’s aunt, was home
during this conversation. Constella knew that Bernard was upset about the car
because he was yelling and using profanity.
3
Bernard told Nichole that he was going to see Bernie and asked Nichole to
come with him. Nichole asked her father not to go, told him that she did not want
to go with him, and stayed behind as he left. Word quickly spread about Bernard’s
intent to confront Bernie. Nichole called Bernie to let him know that Bernard was
on his way. Constella called Mistry and told her that they needed to find Bernard;
and Constella asked her cousin, Michael Manuel, and her father, Garfield Bolton, to
check on Bernard.
Meanwhile, Gregorio had taken Bernie and Nicholas to Maria Gonzalez’s
home (the site of the incident). Maria, Appellant and Gregorio’s mother, allowed
both Appellant and Gregorio to live on her property.
Maria’s property was on a farm-to-market road near Lamesa. There were
fields of crops and a bar ditch across the road. The property was fenced in and had
gates that were usually kept open. The property had two buildings: the “main house”
and the “back house,” which was a one-bedroom house behind the main house. Both
houses faced the farm-to-market road. The property had one driveway on the eastern
side of the main house and one driveway in front of the main house. There was also
a dirt road leading to the back house.
Gregorio parked his pickup on the driveway to the east of the main house.
Maria was inside the main house, and Appellant was in his pickup listening to music
and drinking beer. Appellant had parked his pickup near the back house, with the
front of the pickup facing the farm-to-market road.
Shortly after arriving at Maria’s, Bernie received a call from Nichole. Nichole
told Bernie that Bernard was on his way to Maria’s house. Bernie testified that
Nichole was crying and apologizing to Bernie for her father. Nicholas noticed
Bernie acting “[w]orried [and] scared” while on the phone.
Bernard quickly pulled into Maria’s property while Bernie was standing
outside and on the phone with Nichole. Bernie testified that Bernard pulled into the
4
driveway in front of the main house, almost hitting Bernie in the process. Nicholas
and Gregorio testified that Bernard parked towards the side of the main house.
Bernard got out of his pickup and began yelling at Bernie. Nicholas testified
that Bernard told Bernie he needed to pay for the car, and that when Bernie told
Bernard he did not want any “problems,” Bernard responded, “we’re going to have
problems because of what you did.” Bernie testified that Bernard threatened to “kick
[Bernie’s] a-s.” Gregorio tried to deescalate the situation, but Bernard hit Bernie in
the face. Bernie testified that he fell into the tree in front of the main house, and that
Gregorio was holding Bernard down and was telling him to calm down by the time
Bernie got up.
Gregorio testified that he “threw Bernard to the ground” and that Bernard was
hitting him and attempting to flip him over. Bernie and Nicholas began hitting
Bernard while Gregorio had him on the ground because Bernard was biting Gregorio
in the chest. Nicholas testified that Gregorio then let Bernard get up and told him
that “it didn’t need to be like this, they could have came [sic] and talked and a fight
didn’t have to break out, talk to him like real men.”
Bernard went back to his pickup, grabbed something, and approached Bernie.
Nicholas testified that he saw Bernard grab an “object,” but could not tell what he
was holding. Bernie and Gregorio testified that Bernard was holding a knife, and
Bernie described it as a pocketknife with a gray and black handle. Bernie testified
that he challenged Bernard to “come on, stab me, m----------r.” Bernie testified that
Bernard only pointed the pocketknife at him, but Nicholas and Gregorio testified
that Bernard lunged at Bernie. Gregorio told Bernard not to stab his son. Maria was
“[s]creaming hysterically” on the porch.
Bernie is the only person who testified that Appellant was close enough to the
fight to speak to Bernard when he had the pocketknife out. Bernie testified that
Appellant told Bernard to “[g]et out of here m----------r,” to which Bernard
5
responded “[n]o, I’m going to kill these m-----------s, they jumped me.” Bernie
testified that Appellant then walked towards the back house to get his firearm.
Bernie grabbed a brick and attempted to throw it at Bernard, but Gregorio hit
the brick out of his hand. Bernard walked back to his pickup and said that he had
“more people coming” to Maria’s property. Bernie testified that Bernard said the
Gonzalez family was going to “pay for what [they] did to him.”
Bernard reversed his pickup out of Maria’s property and onto the farm-to-
market road. Bernie picked the brick up again and threw it at Bernard’s pickup.
Testimony differed as to whether Bernard was driving away or already parked on
the road when Bernie threw the brick. 2 Bernard stepped out of his pickup and threw
the brick back at Bernie. Nicholas and Bernie testified that the brick bounced off
the property fence and hit Bernie in the eye.
After Bernard threw the brick back, he and Bernie began fighting again by the
property gate. Nicholas testified that Bernard was bigger than Bernie, and it looked
like Bernard was “winning” the fight. Bernie testified that he was trying to shield
his face from Bernard hitting him and that Nicholas was hitting Bernard’s side,
trying to defend Bernie.
Nicholas and Gregorio testified that Appellant would have been able to see
and hear the fighting and screaming. Appellant approached from the back house
with his firearm, an “AK-47,” aimed at Bernard. Appellant told his family to “get
out of the way” before he began shooting. The different accounts of the incident
that followed are summarized below.
2
Nicholas testified that Bernard was still driving away when the brick hit his pickup and that
Bernard stopped his pickup at an angle, with the passenger side facing Maria’s property. Bernie and
Gregorio testified that Bernard had already parked his pickup on the road when Bernie threw the brick.
6
Nicholas Gonzalez
Nicholas’s testimony placed Bernard on the passenger side of Benard’s
pickup when Appellant started firing. Bernard ran towards the field across the street
from the house. Appellant continued shooting as Bernard ran. Appellant went “in
the road” towards Bernard as he continued shooting. Bernard did not make it into
the field and fell next to the roadway.
Nicholas heard Gregorio tell Appellant to put his firearm down. Nicholas saw
Appellant set his firearm down in “some weeds” by his pickup. Nicholas then saw
four “African Americans” in a green pickup park beside Bernard’s body, “checking”
Bernard’s pickup.
The State questioned Nicholas about the discrepancies between his testimony
and his written statement taken a couple of hours after the incident. Nicholas
testified that he did not tell the truth “through the whole statement” he gave. The
State noted that Nicholas’s statement did not mention Bernard going to his pickup
to grab an “object,” and specifically said that Bernard did not have a knife.
Nicholas’s statement placed Bernard on the driver’s side of his pickup when
Appellant began shooting, and Nicholas stated that “everyone” was telling Appellant
to stop shooting. Nicholas did not state that Bernard fell in the road, but rather in
the field across the road.
Bernie Gonzalez
Bernie testified that Appellant fired two or three shots while standing inside
Maria’s property line. Bernard began running towards his pickup when Appellant
began shooting. Bernard ran behind his pickup and attempted to climb inside while
Appellant fired at the pickup. Bernard then ran to the front of his pickup. Appellant
briefly stopped shooting at the back of the pickup and then began shooting at the
front of the pickup. Bernie saw Bernard limping in the field across the street, where
he soon fell. Appellant asked whether Bernard was still moving. Gregorio asked
7
Appellant, “Why did you shoot him, brother? He was running. He was already
leaving.” Appellant responded that Bernard “shouldn’t have come in [his] yard
trying to stab [his] nephew and trying to start stuff.”
Bernie called 9-1-1, and that call was admitted and played for the jury. In the
call, Bernie asks for an ambulance and says that his uncle shot his ex-girlfriend’s
father because he was “harassing [Bernie’s] family,” “would not leave,” “hit
[Bernie] with a brick,” and “pulled a knife out on [Bernie] and everything.” As
Bernie was speaking with the 9-1-1 dispatcher, he noticed more people arriving on
the scene and said, “[t]here’s more people coming into our yard right now . . . they
got guns, sir.”
Bernie testified that four people drove up in a red Ford F-150 and walked into
Maria’s yard but left when law enforcement arrived. Bernie recalled these people
were “all over Bernard’s truck” looking for him. In contrast to his 9-1-1 call, Bernie
testified that Appellant was the only person he saw with a firearm.
The State questioned Bernie about inconsistencies between his testimony and
the written statement he gave shortly after the incident. Bernie testified that “[a] lot
of stuff is left out” of his statement. The State noted that Bernie’s statement painted
a different picture of the incident—Bernie stated that Bernard parked his pickup in
the driveway behind Gregorio’s pickup; that Gregorio told Bernie and Nicholas
“that’s enough” when they were hitting Bernard on the ground; and that Bernard was
driving away when Bernie threw the brick at his pickup.
Further, Bernie stated that Appellant was shooting at Bernard as he ran, and
that Appellant was in the middle of the road when he fired. Bernie stated that
Bernard was crawling, “groaning and moaning,” and Appellant asked whether
Bernard was still alive—not whether he was still moving. Bernie stated that
Appellant shot Bernard again when Bernard was on the “floor,” and that Appellant
8
was “in a rage” when shooting. Bernie’s statement says, “Bernard was trying to get
away on foot and was not doing anything threatening when he was being shot at.”
Gregorio Gonzalez
Gregorio’s testimony placed Bernard in the road and walking towards the
property gate when Appellant began firing. Appellant was standing in the driveway
when he fired the first five shots. Bernard ran around the back of his pickup and
tried to get into the driver’s side but was unable to. Appellant moved to the
dumpster on the property as he continued shooting. Gregorio testified that Appellant
was never in the road when shooting.
Gregorio saw Bernard “walking away” before he fell “on the other side of the
street” and into the bar ditch. Gregorio told Appellant to “put the gun down” because
law enforcement was arriving, and Gregorio did not want them to shoot Appellant.
Gregorio then saw two Black men arrive in a pickup and walk into Maria’s yard as
law enforcement arrived.
The State questioned Gregorio about the inconsistencies between his
testimony and his recorded interview taken shortly after the incident. The State
noted that Gregorio did not say that Bernard was walking towards the property gate
when Appellant started firing and that, while Gregorio testified that Appellant was
not in the road while shooting, Gregorio stated in his interview that Appellant was
walking towards Bernard’s pickup while he was shooting. Further, Gregorio
testified that he did not recall Appellant firing, pausing, and firing again. However,
Gregorio stated in his interview that Appellant “shot, then walked around and shot
again.” Gregorio stated in his interview that he was thinking “s--t, Bro, you already
shot him, leave it alone, you already shot him” and that he tried to grab the firearm
away from Appellant to stop him from firing more shots. When he testified,
Gregorio denied grabbing the firearm.
9
Kenneth Riddle
Only one person outside of the Gonzalez family testified as an eyewitness to
the actual shooting. Kenneth Riddle was driving on the farm-to-market road around
8:00 p.m. Riddle testified that it was “dusky-dark” outside. Riddle noticed that a
pickup was in the middle of the road and realized he would have to go around it
when he saw two people walking towards the house nearby. Riddle described the
two people as one person of smaller stature, possibly a woman, and one man. The
man walked back into the road and around the pickup, ducking behind it. Riddle
saw sparks coming off the pavement, turned his radio off, and heard several rapid
gunshots.
The man behind the pickup “stood up and [] stretched his arm out and then
ducked back down again because shots rang out again.” Riddle could not see
whether the man had anything in his hands. Riddle backed his vehicle up to avoid
the shooting and watched the man behind the pickup start running down the bar
ditch. After more shots were fired, the man fell.
After the man fell, “the one that was doing the shooting walked right out in
the middle of the pavement, pointed down towards the bar ditch, shot two more
times, turned around and walked back toward the house.” Defense counsel noted
that, when Riddle had a documented conversation with a member of the District
Attorney’s office prior to trial, Riddle did not tell them that the person with the
firearm went into the road and fired twice while the man he was shooting at was on
the ground.
Post-Incident Witnesses
Several witnesses testified about the events that occurred after the incident.
Officer Kelly Scott Bradley with the Lamesa Police Department testified that law
enforcement responded to an “extremely chaotic” scene. Chief Deputy Josh
Peterson with the Dawson County Sheriff’s Office testified that he was dispatched
10
to the scene and that there were “several people in the roadway and numerous people
in the area of the yard of the residence.” Chief Deputy Peterson said that there were
“[a]t least ten or more” people in the yard.
Manuel, Bernard’s cousin, testified that he went to Maria’s house because
Constella had called him and told him that Bernard was “going to find out why
Bernie was tearing up Nichole’s car.” Manuel drove to Maria’s property with his
friend, Robert Maxwell. Maxwell testified that Manuel told him they needed to find
Bernard because he was “getting into it with somebody.”
Manuel parked his vehicle in the middle of the street and ran to Bernard’s
pickup, looking for him. Manuel noticed bullet holes in the pickup and gas pouring
onto the street. Manuel ran towards a group of people near the fence, trying to find
Bernard, and the group of people began running towards the house. Manuel heard
one person say that they thought Manuel had a gun, but Manuel testified that he only
had a cell phone in his hand. Manuel also saw Constella’s father, Garfield, at the
scene.
Mistry picked Constella and Nichole up and drove to Maria’s house. Police
and an ambulance were on the scene by the time they arrived. Constella testified
that Mistry parked in the grass across the street from Maria’s home. Constella
noticed that the driver’s side door to Bernard’s pickup was open, and his body was
“in the weeds” by the passenger side of Mistry’s car.
Several first responders testified that Bernard was face down in the bar ditch
and that his hat and sunglasses were near his body. Testifying officers estimated
that Bernard’s feet were anywhere from less than a foot to ten feet away from the
edge of the asphalt.
Officer Isaac Liscano with the Lamesa Police Department testified that
officers recovered two empty ammunition boxes, ten bullets, and three beer cans
from Appellant’s pickup. Deputy James Davis with the Dawson County Sheriff’s
11
Office transported Appellant from the scene and testified that he could smell beer on
Appellant’s person.
Officer Bradley testified that most of the shell casings recovered were in “the
grass between the fog line and the dumpster, headed up toward the pickup truck, and
then a couple in front of the pickup truck.” Two shell casings were in the middle of
the road. Chief Deputy Peterson testified that Bernard’s pickup had “several bullet
holes” in it. Officer Bradley testified that the bullet holes on the passenger side of
Bernard’s pickup were between twenty-two and thirty-six inches from the ground.
The bullet holes on the front of Bernard’s pickup were between nine and one-half
and twelve inches from the ground. Officer Bradley noted three ricochet marks on
the pavement.
Lieutenant Tommy Arguijo with the Lamesa Police Department took
Nicholas and Bernie’s written statements. Lieutenant Arguijo testified that Bernie
and Gregorio had several injuries, including an injury on Bernie’s right eye and a
bite mark on Gregorio’s chest.
Candace Perez (Xandi), a nurse at the hospital Bernard was taken to, testified
that she assisted in assessing Bernard’s injuries when he first arrived at the hospital.
Perez said that the medical team rolled Bernard onto his side to assess the injuries
on the back of his body. Perez testified that a pocketknife fell from Bernard’s person
when the medical team rolled him onto his side. Photographs of the recovered
pocketknife, which had a gray and black handle, were admitted.
Dr. Thomas Parsons was the forensic pathologist who performed Bernard’s
autopsy. Dr. Parsons testified that the shots that hit Bernard were labelled as fired
from an “undetermined range” because Bernard’s clothing made it difficult to
determine how far Appellant was from Bernard when he shot. Dr. Parsons
documented four gunshot wounds on Bernard’s person, with three entering through
Bernard’s buttocks or legs and one entering Bernard’s torso.
12
The direction of one bullet, entering Bernard’s lower right buttock and going
through his femur, indicated that the bullet entered from “back to front.” The fatal
bullet went up through Bernard’s body and hit several vital organs. Dr. Parsons
testified that the path of the fatal bullet indicated that the muzzle of the firearm would
have been below the entry point and going from “front to back.”
Dr. Parsons testified that the firearm’s muzzle would have been below
Bernard’s waist when the fatal wound occurred. Dr. Parsons testified that this
wound could have been consistent with Bernard lying down on the ground.
However, Dr. Parsons also testified that Bernard could have been running when this
wound occurred. Dr. Parsons testified that the injuries caused by the wound would
have prevented Bernard from running more than ten yards before falling.
Darrell Morgan, a Texas Department of Public Safety firearm and tool mark
examiner, examined Appellant’s firearm. Morgan testified that the firearm’s
magazine could hold thirty cartridges at a time, that thirteen unspent cartridges
remained in the magazine, and fourteen spent shell casings were recovered from the
scene. Morgan testified that Appellant’s firearm was a semi-automatic rifle, and that
the trigger would have needed to be pulled to fire every shot.
Analysis
Sufficiency of the Evidence
In Appellant’s sixth and seventh issues, he asserts the evidence is legally
insufficient to support the jury’s verdict. In his sixth issue, he generally contends
that the evidence is insufficient to support the jury’s verdict. Appellant’s seventh
issue challenges the sufficiency of the evidence with respect to the State’s burden to
disprove the defense of a third person.
Defense of a third person is a fact issue to be determined by the jury, and a
jury’s verdict of guilt is an implicit finding that it rejected a defendant’s theory of
defense of another. See Broughton v. State, 569 S.W.3d 592, 608–09 (Tex. Crim.
13
App. 2018); Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). For
a defense of third person claim, the defendant has the burden of producing some
evidence to support the claim. Broughton, 569 S.W.3d at 608; Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003); see also Saxton, 804 S.W.2d at 913–14
(contrasting affirmative defenses and explaining how burdens shift for self-defense).
If the defendant produces some evidence, the State has “the burden of persuasion to
disprove the raised defense.” Zuliani, 97 S.W.3d at 594. The State’s burden does
not require the production of any additional evidence; instead, “it requires only that
the State prove its case beyond a reasonable doubt.” Id.; see Saxton, 804 S.W.2d at
913. “Because the State bears the burden of persuasion to disprove” such a claim
“by establishing its case beyond a reasonable doubt, we review both legal and factual
sufficiency challenges to the jury’s rejection of such a defense under” the legal
sufficiency standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d); see also Saxton, 804 S.W.3d at 914.
We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.–Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). Thus, when reviewing the sufficiency of the evidence to
support a conviction involving a claim of defense of a third person, we review the
sufficiency of the evidence to support a jury’s rejection of a defendant’s defense of
a third person theory by examining all the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the essential
elements of the offense and also could have found against the defendant on the
14
defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914 (citing
Jackson, 443 U.S. 307).
When conducting a sufficiency review, we defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Brooks, 323 S.W.3d
at 899. This standard accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S.
at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly proves the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Because evidence must be considered cumulatively, appellate courts are not
permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the
evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,
appellate courts must consider the cumulative force of all the evidence. Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
The indictment charged Appellant with murder by intentionally and
knowingly causing the death of Bernard Canady by shooting him with a deadly
weapon—a firearm. A person commits the offense of first-degree murder if the
person intentionally or knowingly causes the death of an individual. TEX. PENAL
15
CODE ANN. § 19.02(b)(1) (West 2019).3 Appellant concedes that “the identity of
the person who shot [Bernard] Canady was never in question.” It is Appellant’s
contention that he “armed himself and defended Bernie and his home” from Bernard,
who, as Bernie testified, had threatened to kill the Gonzalez family. Therefore,
Appellant asserts, there was insufficient evidence to support the jury’s verdict
because he was acting in defense of a third person.
A person is justified in using force or deadly force against another to protect
a third person if:
(1) under the circumstances as the actor reasonably
believes them to be, the actor would be justified under Section
9.31 or 9.32 in using force or deadly force to protect himself
against the unlawful force or unlawful deadly force he
reasonably believes to be threatening the third person he seeks to
protect; and
(2) the actor reasonably believes that his intervention is
immediately necessary to protect the third person.
PENAL § 9.33.
Defense of a third person is a justification defense: “Chapter 9 of the Penal
Code recognizes certain justifications that, under Section 2.03, are defenses to
prosecution.” Alonzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011); see
PENAL § 2.03 (West 2021). As we have stated, when a defendant asserts a
justification defense, the defendant bears the burden to produce evidence supporting
his defense, and the State bears the burden of persuasion to disprove the defendant’s
raised issue. See Braughton, 569 S.W.3d at 608–09 (citing Zuliani, 97 S.W.3d at
594; Saxton, 804 S.W.2d at 913–14. “If a fact-finder believes that a defendant’s
actions are justified under Chapter 9 (or has a reasonable doubt that the actions were
3
The judgment of conviction lists Section 19.03 of the Texas Penal Code (Capital Murder) as the
statute for which Appellant was convicted. However, Appellant was both charged and convicted of conduct
set out in Section 19.02(b)(1) of the Texas Penal Code.
16
justified under Chapter 9), the plain meaning of Sections 9.02 and 2.03 is that the
fact-finder may not convict the defendant for an offense based on those actions.”
Alonzo, 353 S.W.3d at 781.
Whether a defendant was acting in defense of a third person is a fact issue for
the jury to determine. Braughton, 569 S.W.3d at 609 (citing Saxton, 804 S.W.2d at
914). Here, the trial court’s charge included an instruction for defense of a third
person, and the jury’s guilty verdict was an “implicit finding” rejecting Appellant’s
defensive theory. See id. We defer to the jury’s fact determinations and will not
disturb the jury’s rejection of Appellant’s defense of a third person theory on appeal
unless no rational juror could have done so. See id. at 608; see also Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
The focus of defense of a third person is upon what the actor reasonably
believes concerning the situation of the third person. Morales v. State, 357 S.W.3d
1, 8 (Tex. Crim. App. 2011). Appellant contends there was ample evidence for the
jury to find that he reasonably believed deadly force was immediately necessary to
protect a third person. Specifically, Appellant points to (1) Bernard being “armed
with [a] truck, a knife, a brick, and his fists” against Bernie; (2) Appellant’s mother
“hysterically” screaming; and (3) Bernie hearing Bernard say he was “going to kill
these m-----------s.” However, Appellant’s defensive claim “hinge[s] almost entirely
on the credibility of the witnesses who viewed the events.” See Braughton, 569
S.W.3d at 610. As such, Appellant’s claim of defense of a third person was
inherently a credibility question for the jury to resolve. See Brooks, 323 S.W.3d at
899 (“the jury is the sole judge of the witnesses’ credibility”). “[B]y its implicit
rejection of appellant’s defense[] in finding him guilty, the jury necessarily signaled
its disbelief in this testimony as lacking in credibility.” See Braughton, 569 S.W.3d
at 611; Saxton, 804 S.W.2d at 913–14 (assessment of credibility of defensive
17
evidence is “solely within the jury’s province and the jury is free to accept or reject
the defensive evidence”).
Four eyewitnesses who testified at trial said that Bernard was running away
from the Gonzalez home while Appellant was firing the AK-47. Bernie and
Gregorio testified that Bernard had put the pocketknife away by the time the shooting
occurred. Riddle testified that Appellant walked towards the bar ditch and shot
Bernard twice after he had fallen to the ground. Bernie testified that Gregorio told
Appellant that he did not have to shoot at Bernard because he was already leaving.
Bernie’s statement was that “Bernard was trying to get away on foot and was not
doing anything threatening when he was being shot at.” Accordingly, there is
sufficient evidence in the record to rationally support the jury’s rejection of
Appellant’s claim of defense of a third person and a rational juror could have
reasonably concluded that Bernie was not in “immediate danger” when Appellant
began shooting. See PENAL § 9.33. As such, there was sufficient evidence in the
record to support the jury’s rejection of Appellant’s defensive claim.
Although Appellant’s sixth and seventh issues are limited to a legal
sufficiency challenge, Appellant submitted a supplemental letter brief to this court
contending that “factual sufficiency review still applies in cases raising a defense.”
Appellant contends that the Zuliani “factual-based” sufficiency review should be
conducted when a defendant’s defensive theory is rejected. See Zuliani, 97 S.W.3d
at 594. Appellant’s contention is incorrect.
Appellant cites Butcher v. State in support of his proposition. See Butcher v.
State, 454 S.W.3d 13 (Tex. Crim. App. 2015). However, Butcher dealt with an
affirmative defense to aggravated kidnapping. Id. at 15. Affirmative defenses can
be analyzed for factual sufficiency post-Brooks. Id. at 19; Matlock v. State, 392
S.W.3d 662, 667 (Tex. Crim. App. 2013); see PENAL § 2.04(b), (d). In contrast,
justification defenses, like defense of a third person, invoke the single Jackson
18
standard. Saxton, 804 S.W.2d at 914; see also Braughton, 569 S.W.3d at 608–09
(citing Saxton, 804 S.W.2d at 914); Matlock, 392 S.W.3d at 667 (“The Jackson
standard of review is that required for criminal cases when the standard of proof is
that of ‘beyond a reasonable doubt.’”). As we have previously noted, the evidence
is legally sufficient to support the jury’s verdict under the Jackson standard.
We overrule Appellant’s sixth and seventh issues.
Jury Deliberations
Appellant’s first five issues center around the manner in which the trial court
addressed jury deliberations for the guilt/innocence phase of trial. Specifically,
Appellant asserts that the trial court conducted an improper poll of the jury, and in
doing so, the trial court commented on the weight of the evidence and by its
instructions coerced the jury, thereby resulting in Appellant’s conviction by a
nonunanimous verdict.
The jury began deliberations at 4:50 p.m. on June 18, 2019. At 6:04 p.m., the
jury reentered the courtroom and advised the trial court that it had reached a verdict.
The trial court then read the jury’s verdict of guilty and noted that it was signed by
the presiding juror. Afterwards, defense counsel requested that the trial court poll
the jury. The trial court began polling the jurors, and the first three jurors confirmed
that the verdict was theirs. However, Juror Eleven, the fourth juror polled, replied
“No” when asked if the verdict was his. The trial court continued polling the jury
and confirmed with the remaining jurors that the verdict was theirs before returning
to Juror Eleven to question him further.
The conversation between the trial court and Juror Eleven was as follows:
THE COURT: And [Juror Eleven], this is not your verdict; is --
JUROR [ELEVEN]: Yes.
THE COURT: -- this correct? It is or is not?
JUROR [ELEVEN]: No, it’s not.
19
THE COURT: Not your verdict. Okay. Ask the Jury to return to
the jury room, then, and continue to deliberate until you have a
unanimous verdict.
The jury left the courtroom to deliberate further at 6:06 p.m. and returned twenty-
six minutes later with a guilty verdict. The trial court again confirmed that the guilty
verdict was correct and again polled the jury upon defense counsel’s request. After
all twelve jurors confirmed that the verdict was theirs, the trial court accepted the
verdict and dismissed the jury until the following morning.
Jury Polling Procedure
In Appellant’s fourth issue, he contends that the trial court failed to follow the
proper jury polling procedure as outlined in Article 37.05(a) of the Code of Criminal
Procedure. See CODE CRIM. art. 37.05(a) (West Supp. 2022). Article 37.05(a)
provides as follows:
The State and the defendant each have the right to have the jury
polled, which is done by calling separately the name or identification
number of each juror and asking the juror if the verdict is the juror’s. If
all jurors, when asked, answer in the affirmative, the verdict shall be
entered upon the minutes; but if any juror answers in the negative, the
jury shall retire again to consider its verdict.
Id. Appellant asserts that Article 37.05 requires the jury to return to deliberations as
soon as a single juror answers in the negative, and it instructs that the trial court
cannot continue polling the remaining jurors after a juror indicates that the verdict is
not his. However, Appellant did not object or request that the trial court stop polling
the remaining jurors when Juror Eleven initially answered in the negative. “As a
prerequisite to presenting a complaint for appellate review,” a party must have made
a timely request, objection, or motion to the trial court “with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were
apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). As noted by the Texas
Court of Criminal Appeals:
20
It is well-settled that the purpose of requiring a timely specific objection
is to allow the trial court to have the opportunity to make a
determination and ruling on the complained of point and then to
proceed with the trial under the proper procedural and substantive
manners, as appropriately corrected by the trial court. Thus, the trial
court is allowed to correct the complained of error at that time and to
then proceed with the trial.
Janecka v. State, 823 S.W.2d 232, 243–44 (Tex. Crim. App. 1990).
Any error in the jury polling process or procedure used by the trial court is
forfeited if Appellant fails to object “when the trial court went beyond the scope of
[A]rticle 37.05.” Barnett v. State, 189 S.W.3d 272, 277 (Tex. Crim. App. 2006).
The record before us does not demonstrate that Appellant’s trial counsel made a
contemporaneous objection to the trial court’s polling procedure. Thus, Appellant
did not apprise the trial court, as required to preserve this issue for review, of any
complaint regarding the trial court’s jury polling procedure or of his contention that
the trial court was not permitted to question the remaining jurors after Juror Eleven
answered in the negative. See TEX. R. APP. P. 33.1(a)(1)(A). Because Appellant did
not timely object to the trial court’s polling procedure, we overrule Appellant’s
fourth issue.
Jury Coercion and Commenting on the Weight of the Evidence
In Appellant’s first issue, he contends that the manner in which the trial court
questioned Juror Eleven had a coercive effect on the jury. For this issue, Appellant’s
contentions are focused on the number of times that the trial court asked Juror Eleven
if the verdict was his, and then instructing an 11-1 jury to return with a unanimous
verdict. In his fifth issue, he asserts that the trial court’s polling procedure
constituted a comment on the weight of the evidence. For this issue, Appellant
contends that the trial court commented on the weight of the evidence when it
(1) requested that the jury return to the jury room to continue its deliberations until
21
the jurors had reached a unanimous verdict and (2) asked Juror Eleven to clarify
whether it was his verdict.
Article 38.05 of the Texas Code of Criminal Procedure prohibits a trial judge
from commenting on the weight of the evidence in criminal proceedings. CRIM.
PROC. art. 38.05. In this regard, a trial judge must refrain from making any remark
calculated to convey to the jury his opinion of the case. Brown v. State, 122 S.W.3d
794, 798 (Tex. Crim. App. 2003) (citing CRIM. PROC. art. 38.05). A trial court
improperly comments on the weight of the evidence if it implies approval of the
State’s argument, indicates any disbelief in the defense’s position, or diminishes the
credibility of the defense’s approach to the case. Clark v. State, 878 S.W.2d 224,
226 (Tex. App.—Dallas 1994, no pet.) (citing Ward v. State, 243 S.W.2d 695, 696–
97 (Tex. Crim. App. 1951); see McClory v. State, 510 S.W.2d 932, 934 (Tex. Crim.
App. 1974); Arevalo v. State, No. 11-22-00123-CR, 2023 WL 5622340, at *14 (Tex.
App.—Eastland Aug. 31, 2023, no pet. h.). A trial court can be coercive in its
instruction to continue deliberations if the instruction includes additional language
which could be interpreted as bringing pressure to bear on the jury. See Muniz v.
State, 573 S.W.2d 792, 794 (Tex. Crim. App. 1978).
Once again, Appellant did not make a contemporaneous objection with
respect to the trial court’s questioning of Juror Eleven. 4 As such, because Appellant
did not apprise the trial court of his contention that its manner of questioning Juror
Eleven was improper in any way, Appellant did not preserve these complaints for
appellate review. See Barnett, 189 S.W.3d at 277.
Appellant cites Brasfield v. U.S in support of his proposition that “[i]nquiry
into the numeric split of a jury is not allowed because it coerces the jurors in the
4
During a hearing on his motion for new trial, Appellant elicited testimony from one of his trial
attorneys stating that a conference occurred with the attorneys and the trial court concerning the need to
make a further inquiry with respect to Juror Eleven. However, this purported conference is not supported
by the contemporaneous reporter’s record from when the jury returned its verdict.
22
minority.” Brasfield v. U.S., 272 U.S. 448, 450 (1926). However, the Texas Court
of Criminal Appeals has declined to follow Brasfield, noting that “Brasfield created
a prophylactic rule forbidding the federal trial courts from questioning the juries
regarding numerical division. However, such a prophylactic rule is based upon the
U.S. Supreme Court’s exercise of supervisory powers and . . . simply has no
application to [a] state proceeding.” Howard v. State, 941 S.W.2d 102, 124 (Tex.
Crim. App. 1996), overruled on other grounds by Easley v. State, 424 S.W.3d 535
(Tex. Crim. App. 2014).
Appellant also cites to Barnett v. State for the proposition that continuing to
poll the jury after a lack of unanimity is revealed is coercive. Barnett v. State, 161
S.W.3d 128 (Tex. App.—Fort Worth 2005), aff’d, 189 S.W.3d 272 (Tex. Crim. App.
2006). In Barnett, the Fort Worth Court of Appeals held that the trial court’s action
of polling of the jury was coercive because it went beyond the scope of Article 37.05
in telling two hold-out jurors “‘we do have a problem with both of you’ and ask[ing]
them whether, if sent back to the jury room to deliberate, they would be able to
change their votes[.]” Barnett, 161 S.W.3d at 131, 134.
Barnett is readily distinguishable from the case before us. Here, when the
trial court asked Juror Eleven more than once if the verdict was his, the record
demonstrates that the trial court was attempting to confirm that Juror Eleven did not
agree with the verdict. The record does not indicate that the trial court was
attempting to elicit a different response from Juror Eleven. Similarly, while
Appellant asserts that the trial court was “tacitly instructing” Juror Eleven to change
his verdict when it told the jury to “continue to deliberate until you have a unanimous
verdict,” the context of the trial court’s instruction indicates that the instruction was
directed to the entire jury. See Howard, 941 S.W.2d at 124. The trial court stated,
“Okay. Ask the Jury to return to the jury room, then, and continue to deliberate until
you have a unanimous verdict.” This instruction to return with a unanimous verdict
23
necessarily implies only that all twelve jurors must arrive at the same verdict.
Further, this was essentially the same instruction included in the trial court’s charge:
“[y]our verdict must be by a unanimous vote of all members of the jury.” The trial
court referred to the twelve-person jury as “you” throughout its charge—the first
paragraph of the trial court’s charge states “You are instructed that the law applicable
to this case is as follows.” In proper context, it is clear that these instructions were
meant for the entire jury and were not directed specifically at Juror Eleven.
It is the trial judge’s duty to reject an insufficient, unresponsive, incomplete,
or informal verdict, call the jury’s attention to the problem, and have the problem
corrected either with the jury’s consent or by sending them out to reconsider the
verdict. CRIM. PROC. art. 37.10(a) (West 2006); Reese v. State, 773 S.W.2d 314, 317
(Tex. Crim. App. 1989) (“A verdict must be certain, consistent, and definite. It may
not be conditional, qualified, speculative, inconclusive, or ambiguous.”). The trial
court did not include additional language in its instruction to continue deliberations
that could be seen as pressuring the jury. See Muniz, 573 S.W.2d at 793–94 (holding
that the instruction “You are instructed to return to the jury room and continue your
deliberations in this case, to see if you can arrive at an answer to Special Issue
Number II, contained in the Charge on Punishment” was not coercive.).
Accordingly, we cannot conclude that the trial court improperly commented on the
weight of the evidence or coerced Juror Eleven when it confirmed that the verdict
was not unanimous and instructed the jury to continue deliberating until they reached
a unanimous verdict. We overrule Appellant’s first and fifth issues.
Unanimous Verdict
In Appellant’s second and third issues, he asserts that the combination of the
trial court’s polling procedure, jury coercion, and comment on the weight of the
evidence resulted in a conviction by a nonunanimous jury. However, Appellant did
not make a contemporaneous objection to the trial court’s polling procedure or
24
comments, and we have determined that the trial court did not comment on the
weight of the evidence and did not coerce Juror Eleven into reaching his verdict of
guilty.
Appellant contends that the verdict could not have been unanimous based on
information regarding Juror Eleven’s deliberative process. Specifically, Appellant
relies on an affidavit signed by Juror Eleven in preparation for Appellant’s original
motion-for-new-trial hearing and Juror Eleven’s testimony at the second motion-for-
new-trial hearing following our remand.5 Juror Eleven’s affidavit and his testimony
contained information about how he arrived at his decision to convict Appellant.
Jurors are prohibited “from testifying about ‘any matter or statement
occurring during the jury’s deliberations,’ with two exceptions.” McQuarrie v.
State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012) (quoting TEX. R. EVID. 606(b)).
A juror may testify about “whether any outside influence was improperly brought to
bear upon any juror” or “to rebut a claim that the juror was not qualified to serve.”
Id. (quoting TEX. R. EVID. 606(b)). An outside influence is “something originating
from a source outside of the jury room and other than from the jurors themselves.”
Id. at 154. Accordingly, the evidence that Appellant sought to offer from Juror
Eleven about his deliberative process was precluded under Rule 606(b). Moreover,
Juror Eleven did not contend that the trial court’s questioning of him about his
verdict coerced him into changing his verdict.
The evidence properly before us shows that the trial court instructed the jury
to resume deliberations until they reached a unanimous verdict, and the jury returned
with a unanimous guilty verdict. All twelve jurors were polled again, and each juror
affirmed that the verdict was theirs—including Juror Eleven. Therefore, the record
5
The trial court allowed Appellant to offer Juror Eleven’s affidavit and Juror Eleven’s testimony
as a bill of exception at the second motion-for-new-trial hearing on remand.
25
before us shows that Appellant was convicted by a unanimous jury. We overrule
Appellant’s second and third issues.
Denied Instructions in the Trial Court’s Charge
In Appellant’s eighth and ninth issues, he contends the trial court erred in
denying his requests to include two additional instructions in the trial court’s
guilt/innocence charge. A review of alleged jury-charge error involves a two-step
analysis. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v.
State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). We must first determine
whether the charge contained any actual error. Ngo, 175 S.W.3d at 743–44; Abdnor,
871 S.W.2d at 731–32. If there was actual error, we must next determine whether
the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–
44; Abdnor, 871 S.W.2d at 731–32; see also Villarreal v. State, 453 S.W.3d 429,
433 (Tex. Crim. App. 2015) (describing Almanza harm analysis for jury charge
error); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
The trial court is required to give the jury a written charge “setting forth the
law applicable to the case.” CRIM. PROC. art. 36.14 (West 2007); Vega v. State, 394
S.W.3d 514, 518 (Tex. Crim. App. 2013). A trial court is required to instruct a jury
on any “statutory defenses, affirmative defenses, and justifications whenever they
are raised by the evidence,” regardless of whether the defensive evidence is “strong,
weak, unimpeached, or contradicted.” Walters v. State, 247 S.W.3d 204, 208–09
(Tex. Crim. App. 2007); Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App.
1984); see PENAL § 2.03.
A defensive issue is raised by the evidence if there is some evidence,
regardless of its source, on each element of a defense that, if believed by the jury,
would support a rational inference that the element is true. See Shaw v. State, 243
S.W.3d 647, 657–58 (Tex. Crim. App. 2007). When deciding whether a defensive
issue has been raised by the evidence, a trial court must rely on its own judgment,
26
formed in light of its own common sense and experience, as to the limits of rational
inference from the facts that have been proven. Id. at 658. Whether the record
contains such evidence is a question of law, which means that we do not apply the
usual rule of appellate deference to the trial court’s ruling. Id. “Quite the reverse,
we view the evidence in the light most favorable to the defendant’s requested
submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
The “Right to Continue Shooting” Until the Danger Has Passed
In his eighth issue, Appellant asserts that the trial court erred in denying his
request to include an instruction about his “right to shoot and continue to shoot until
the danger had passed.” Appellant cites a case from 1909, Duke v. State, in support
of this proposition. 133 S.W. 432, 434 (Tex. Crim. App. 1909) (holding that “the
omission by the court to charge with reference to the right of appellant to continue
to shoot was harmful under the facts in the record”).
The “right” to “shoot and continue to shoot until the danger had passed” does
not appear in the Penal Code. See generally PENAL, Chs. 8–9. A trial court should
not instruct a jury on a defensive theory that is not explicitly recognized in the Penal
Code. Walters, 247 S.W.3d at 209–10 (citing Giesberg v. State, 984 S.W.2d 245,
250 (Tex. Crim. App. 1998)). In Giesberg, the Court of Criminal Appeals held that,
“because the authority to establish what constitutes a defense rests solely with the
Legislature, . . . a defense which is not recognized by the Legislature as either a
defense or as an affirmative defense does not warrant a separate instruction.” 984
S.W.2d at 250 (citing Sanders v. State, 707 S.W.2d 78, 80–81 (Tex. Crim. App.
1986), abrogated on other grounds by Willis v. State, 790 S.W.2d 307, 314–15 (Tex.
Crim. App. 1990)).
In Walters, the Court of Criminal Appeals clarified the scope of Giesberg by
holding that “special, non-statutory instructions, even when they relate to statutory
offenses or defenses, generally have no place in the jury charge.” 247 S.W.3d at 211
27
(emphasis added). Therefore, a party will not be entitled to a special instruction that
(1) is not grounded in the Penal Code; (2) is already covered by the general charge
to the jury; and (3) “focuses the jury’s attention on a specific type of evidence that
may support an element of an offense or a defense,” because the instruction would
be an impermissible comment on the weight of the evidence. Id. at 212.
First, as we previously determined, a special instruction on Appellant’s
“right” to continue shooting until the danger had passed is not found in the Penal
Code. We presume that the absence of that defense in the Penal Code is an
intentional silence by the Legislature. See id.
Second, the defense-of-a-third-person instruction that the jury received was
as follows:
[A] person is justified in using force or deadly force against another to
protect a third person if, under the circumstances as he reasonably
believes them to be, such person would be justified in using force or
deadly force to protect himself against the unlawful force or deadly
force of another which he reasonably believes to be threatening the third
person he seeks to protect, and he reasonably believes that his
intervention is immediately necessary to protect the third person.
(emphasis added).
The included language “immediately necessary to protect the third person” implies
that, if the actor reasonably believes that he must intervene with deadly force, his
intervention is permitted so long as the immediate danger to the third person persists.
Thus, if the jury had found that Appellant’s intervention and use of deadly force was
immediately necessary to protect Bernie, the jury would have necessarily determined
that Appellant only fired while Bernard was an imminent threat to Bernie. As such,
the “right to shoot and keep shooting” until the danger has passed was already
covered by the instruction for the defense of a third person.
Finally, an instruction about the “right to shoot and continue to shoot until the
danger has passed” would have focused the jury’s attention on a specific type of
28
evidence introduced to prove or disprove Appellant’s defensive theory of defense of
a third person, which would effectively and “improperly tell[] the jury how to
consider certain evidence before it.” See id. at 214. Therefore, the trial court did
not err in excluding a proposed instruction that would have constituted an
impermissible comment on the weight of the evidence. See id. at 212.
In summary, the “right to shoot and continue to shoot until the danger has
passed” is not grounded in the Penal Code, was covered by the included defense of
a third person instruction, and would constitute an impermissible comment on the
weight of the evidence. See id. Accordingly, Appellant was not entitled to such an
instruction in the trial court’s charge. We overrule Appellant’s eighth issue.
The Right to Use Deadly Force to Defend Property at Night
In Appellant’s ninth issue, he contends that the trial court erred when it denied
a proposed instruction on the “right” to use deadly force to protect property at night.
Section 9.41 of the Penal Code states that a person in lawful possession of land or
tangible, movable property is justified in using force against another, when and to
the degree the person reasonably believes the force is immediately necessary, to
prevent or terminate another’s trespass onto or unlawful interference with the
property. PENAL § 9.41 (West 2019). Section 9.42 of the Penal Code states that a
person is justified in using deadly force against another to protect land or tangible,
movable property: (1) if the person would be justified in using force against another
under Section 9.41; (2) when and to the degree the person reasonably believes the
deadly force is immediately necessary to prevent the other’s imminent commission
of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or
criminal mischief during the nighttime; and (3) the person reasonably believes that
the land or property cannot be protected or recovered by any other means, or the use
of force other than deadly force to protect or recover the land or property would
29
expose the actor or another to a substantial risk of death or serious bodily injury.
PENAL § 9.42.
Appellant suggested at trial, and asserts on appeal, that he was justified in
using deadly force in the nighttime to prevent Bernard from committing criminal
mischief. A person commits the offense of criminal mischief if the person, without
the effective consent of the owner, intentionally or knowingly damages or destroys
the tangible property of the owner. PENAL § 28.03 (West Supp. 2022). Appellant’s
theory at trial and on appeal is that the jury would have been able to infer that
Bernard was on a “destruction spree” and meant to throw the brick at the gate instead
of Bernie, “nonetheless causing damage that constitutes criminal mischief [during
the nighttime].”
A defendant will only be entitled to a defensive issue if there is some evidence
of each element of a defense to support a rational inference that the element is true.
See Shaw, 243 S.W.3d at 657–58. Section 9.41 only allows force to be used when
and to the degree the actor reasonably believes the force is immediately necessary
to prevent or terminate a trespass on the land or unlawful interference with the
property. If Appellant shot the firearm—fourteen times—to prevent or terminate
Bernard’s trespass on the land or his unlawful interference with the property,
Appellant used a disproportionate degree of force to effectuate the prevention or
termination of the trespass, which precludes a justification defense under
Section 9.41 and, as a result, a defense under Section 9.42. See PENAL §§ 9.41(a),
9.42(1). Moreover, Section 9.42 requires the actor to have a reasonable belief that
criminal mischief is imminent. But here, there is no evidence in the record showing
that Bernard was still a threat to Appellant’s property at the time Appellant began
shooting at Bernard. There was no indication that Bernard was attempting to retrieve
the brick he threw or attempting to otherwise damage the Gonzalez property. While
the intended target of the brick Bernard threw is unknown, the Gonzalez family
30
testified that Bernard approached Bernie after throwing the brick and that the two
were engaged in a physical fight when Appellant arrived at the scene with his
firearm. That is, even if Bernard had intended to throw the brick at the property gate
rather than Bernie, the testimony indicated that the threat of damage to Appellant’s
property had passed after the brick was thrown.
Accordingly, we conclude that the trial court did not err by denying
Appellant’s requested instruction because Appellant used a disproportionate degree
of force, and there is no evidence in the record to support a reasonable belief that
Appellant’s use of deadly force was immediately necessary to protect the property
from imminent criminal mischief. See PENAL §§ 9.41–9.42; see Leach v. State, 983
S.W.2d 45, 47–48 (Tex. App.—Tyler 1998, no pet.); Hernandez v. State, 914
S.W.2d 218, 224 (Tex. App.—El Paso 1996, pet. ref’d); see generally Hudson v.
State, 145 S.W.3d 323, 325 (Tex. App.—Fort Worth 2004, pet. ref’d) (holding that
appellant was not entitled to defense-of-property instruction concerning a trespasser
when there was no evidence that the trespasser threatened to remain on appellant’s
property or damage it); Sparks v. State, 177 S.W.3d 127, 132–33 (Tex. App.—
Houston [1st Dist.] 2005, no pet.) (holding that, although the victim had previously
stabbed appellant when he refused to give her money, appellant was not entitled to
a Section 9.42 instruction concerning the victim because the victim was defending
appellant from a third person “and not attacking or robbing [appellant] when
appellant acted to defend his property.”) (emphasis added). We overrule
Appellant’s ninth issue.
Denial of Testimony from Defense Witness
Appellant’s tenth through twelfth issues relate to the trial court’s decision to
not allow Aaron Clements, Appellant’s proposed expert witness, to testify at trial.
On June 3, 2019, Appellant’s trial counsel informed the trial court that his law firm
partner had filmed an out-of-court test firing with a firearm purportedly similar to
31
the one Appellant used, and that the results of that test firing indicated that shell
casings “can go five feet, they can go 25 feet, and that you really can’t make any
conclusion based on the pattern that these shell casings exist [sic] in this case.”
Appellant’s trial counsel asserted that he wanted his partner to testify in a fact
witness capacity regarding the experiment, and that he would offer Aaron Clements
as a firearms expert if the trial court found that an expert was needed. The State
objected to defense counsel’s untimely notice of expert designation under
Article 39.14 of the Code of Criminal Procedure. See CRIM. PROC. art. 39.14(b)
(West Supp. 2022) (Upon timely request, a party must disclose the name and address
of each person a party may use at trial to present evidence as an expert no later than
twenty days before trial.). The trial court ruled that “[a]t the proper time before
anything is proffered the Court is going to grant a Motion in Limine as to those
matters, and we’ll take it up outside the presence of the jury.”
On June 7, 2019, the morning of voir dire, the trial court conducted a hearing
on a motion for an independent examination of evidence that Appellant’s trial
counsel had filed. Appellant’s trial counsel informed the trial court that:
[U]ntil this week, I thought there was no dispute about the
ejection of the shell casings from the right side of this weapon that is -
- the weapon in question. It is an AK-47 knockoff or look alike -- a
Romania or something like that. And it -- we -- the pattern of the shell
casings that are demonstrated by the police investigation6 seems to say
or seems to appear that shell casings will be ejected in a consistent
pattern rather than randomly. We have initially tested a similar weapon
and had been able to determine they discharge those casings from 5 feet
to 27 feet. And it doesn’t matter whether it is the first, second, third or
fourth. You never know how far that shell casing is going to go.
And so I thought that we were in agreement about that, but there
has been discussions that led me to believe that the State may dispute
6
Officer Bradley had prepared a diagram of the scene and marked the approximate locations of
the shell casings that were recovered.
32
that. And so we wanted to take an hour this weekend to have our expert,
Aaron Clements, demonstrate firing of, you know, possibly one
magazine of 33 rounds of -- to show that the pattern is not a consistent
pattern.
The State objected to the motion for an independent examination of evidence and
again asserted that defense counsel’s designation of Clements as an expert was
untimely. The State also asserted that Clements, the county attorney for Dickens
County, was not a ballistics expert and that a hearing on whether Clements was
qualified to testify as a ballistics expert had not been conducted. 7
The trial court instructed the parties that it would allow the independent
examination of the evidence “with the qualification that we will have a hearing
outside the presence of the jury for me to determine whether or not [Clements] is or
is not an expert. And I will also deal with the timeliness at the time that we have
that hearing.” Counsel agreed to conduct the independent examination that weekend
in the presence of the State’s expert and “members of the DA’s office.”
The independent examination was conducted on June 9, 2019. Appellant’s
trial counsel, Robert Barrera, recounted the independent examination in the affidavit
he prepared for the hearing on Appellant’s motion for new trial. Barrera’s affidavit
stated that:
The testing was videotaped and photographed and the location of
each of the casings ejected from the rifle was marked and measured in
relation to both the direction of the barrel and the distance from the
shooter. The test results revealed that approximately 80% of the shell
casings ejected both to the right of the rifle and forward of the shooter
at approximately a forty-five-degree angle. The casings landed from 6
to 21 feet from the rifle. Several of the ejected shell casings went to the
right and rear of the shooter.
7
The State also objected to unsealing the firearm and “put[ting] the evidence in a different state
[than] it was in the last time [the State’s] experts saw it.”
33
When Appellant’s trial counsel sought to offer Clements’s testimony at trial, the trial
court held a hearing outside the presence of the jury to determine whether Clements
was qualified to testify as an expert. Clements testified that he had a bachelor’s
degree in chemistry and a background in physics; he was licensed in the State of
Texas to carry a handgun; he was a federally licensed gun dealer; and that he was a
“special occupational tax payer under the National Firearms Act, authorized to deal
in National Firearms Act weapons.” Clements testified that he had fired “fully
automatic weapons” before and possessed four automatic weapons in his dealer
inventory at the time of trial. Clements testified that he was familiar with how
automatic firearms operate, including AK-47 firearms, and that he had at least thirty
years’ experience firing shoulder-fired semi-automatic weapons.
Clements also testified that most semi-automatic weapons eject shell casings
to the right, and that most shell casings are generally found to the right side of the
person firing the weapon. Clements stated that many factors, such as the condition
of the weapon’s ejector, whether the weapon is hot or dirty, and environmental
factors can affect where a shell casing will land.
Clements explained that he test-fired the firearm Appellant used to
“demonstrate the ejection pattern of casings from the weapon.” Clements testified
that, based on the results of his test-firing, he would place Appellant “in an area
roughly where the intersection of the circle drive with the main driveway would be.”
Clements acknowledged that he had never been to the scene, had seen “very few”
photographs of the scene, and that his opinion was based off Officer Bradley’s
diagram.
On cross-examination, Clements confirmed that he had never testified in an
expert capacity “regarding ballistics or anything to do with shooting firearms or
ejection patterns” and that he had never been qualified as an expert to testify as to
those matters. Clements also confirmed that he had never been to any law
34
enforcement training regarding the shooting of semi-automatic rifles, nor had he
been to any training for crime scene reconstruction. Clements clarified that his
opinion was not offered to show exactly where Appellant was when he was firing,
but to show the general area the weapon would have had to be in order to create the
ejection pattern recorded by Officer Bradley. Clements acknowledged that he was
not asked to replicate conditions such as weather and ground conditions that were
present on the night of the incident.
The trial court ultimately held that it was not going to admit Clements’s
testimony, stating that Clements did not have the experience “that rises to the level
of being a qualified expert under the law.” The trial court also found that Clements
was not timely designated an expert.
The trial court allowed Appellant’s trial counsel to make a bill of exception in
response to the trial court’s ruling. Appellant’s trial counsel explained that the
defense intended to call Clements to rebut testimony that Appellant was in the
middle of the road when the shots were fired. Appellant’s trial counsel asserted that
Clements was qualified to testify as an expert based on his experience and
knowledge of firearms, and that Clements could testify as a fact witness regarding
“the pattern of shells that were ejected from this firearm under controlled
conditions.” The trial court clarified that it was not allowing Clements to testify as
either an expert or fact witness. Appellant’s trial counsel objected to the exclusion
of Clements’s testimony and argued that it violated Appellant’s rights to due process,
a fair trial, and effective assistance of counsel. The trial court overruled trial
counsel’s objections but granted a running objection.
On appeal, Appellant contends that the trial court’s exclusion of Clements’s
testimony violated Appellant’s right to a fair trial (eleventh issue), right to present a
defense (tenth issue), and right to confrontation (twelfth issue). Generally, the right
to present evidence and to cross-examine witnesses under the Sixth Amendment
35
does not conflict with the corresponding rights under state evidentiary rules.
Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); see Miller v. State,
36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (“A defendant has a fundamental right
to present evidence of a defense as long as the evidence is relevant and is not
excluded by an established evidentiary rule.”). As noted by the Court of Criminal
Appeals in Hammer, there are two scenarios in which rulings excluding a
defendant’s evidence might rise to the level of a constitutional violation: (1) a state
evidentiary rule that categorically and arbitrarily prohibits the defendant from
offering otherwise relevant, reliable evidence that is vital to his defense and (2) a
trial court’s clearly erroneous ruling excluding otherwise relevant, reliable evidence
that “forms such a vital portion of the case that exclusion effectively precludes the
defendant from presenting a defense.” Id. at 561 n.8 (quoting Potier v. State, 68
S.W.3d 657, 663–65 (Tex. Crim. App. 2002)). Appellant’s tenth, eleventh, and
twelfth issues constitute challenges under the “second category” because he asserts
that the trial court made erroneous rulings under the rules of evidence that precluded
him from effectively presenting his defensive theory. See id.
Expert Testimony
In his eleventh issue, Appellant contends that he was denied the right to a fair
trial by the exclusion of Clements’s expert testimony. The trial court’s ruling on the
admissibility of expert testimony is reviewed for an abuse of discretion. Russeau v.
State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009). The admissibility of expert
testimony is governed by Rule 702 of the Texas Rules of Evidence, which provides
that “[a] witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702.
36
“Just as the subject matter of an expert’s testimony should be tailored to the
facts of a case, the expert’s background must be tailored to the specific area of
expertise in which the expert desires to testify.” Vela v. State, 209 S.W.3d 128, 133
(Tex. Crim. App. 2006). The Court of Criminal Appeals explained in Rhomer v.
State that:
The specialized knowledge that qualifies a witness to offer an expert
opinion may be derived from specialized education, practical
experience, a study of technical works or a combination of these things.
A witness must first have a sufficient background in a particular field,
but a trial judge must then determine whether that background goes to
the very matter on which [the witness] is to give an opinion. “Fit” is a
component of qualification, and the expert’s background must be
tailored to the specific area of expertise in which the expert desires to
testify. The party offering expert testimony has the burden to show the
witness is qualified on the matter in question.
Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019) (internal citations
and quotations omitted).
Appellant asserts that Clements was qualified to testify as “an expert on the
ejection pattern of [Appellant’s] rifle and the factors that can influence the discharge
pattern.” But Appellant sought to offer Clements to testify not only about his
knowledge of firearms, but also to conduct a test firing of Appellant’s weapon,
document where shell casings landed, and to extrapolate the results of the test firing
onto a diagram depicting the scene. Thus, the crux of Clements’s offered testimony
was that, based on the location of the shell casings recovered from the scene,
Appellant was standing on his property when firing the AK-47.
The trial court did not abuse its discretion to act as gatekeeper when it
determined that, while Clements likely has more knowledge and experience than the
average layperson in shooting firearms, he was not qualified to give his opinion as
to Appellant’s location while firing the AK-47 based off the location of shell casings
recovered from the scene. See Rhomer, 569 S.W.3d at 670 (“The trial court is
37
supposed to act as a gatekeeper against expert testimony that would not help the trier
of fact.”). Clements’s knowledge and experience did not “fit” with his proposed
testimony—abstract knowledge of how semi-automatic weapons perform does not
aid the jury in analyzing the location of shell casings to determine where Appellant
was standing when firing at Bernard. See id. at 669; Broders v. Heise, 924 S.W.2d
148, 153 (Tex. 1996) (holding that, while a medical doctor “possessed knowledge
and skill not possessed by people generally,” that knowledge “does not in and of
itself mean that such expertise will assist the trier of fact regarding the issue before
the court”).
Appellant’s location when firing would have been more appropriately
determined by a crime scene investigator or ballistics expert. See, e.g., Beathard v.
State, 767 S.W.2d 423, 426 (Tex. Crim. App. 1989) (crime scene investigators
testified that they used the location of shell casings and the projected trajectory of
shots to determine the shooter’s location); Feaster v. State, No. 05-18-00739-CR,
2019 WL 2282295, at *4 (Tex. App.—Dallas May 29, 2019, pet. ref’d) (mem. op.,
not designated for publication) (Detective who processed the crime scene testified
that “the location of shell casings and projectiles indicated that guns were fired
towards each other, which . . . is logically consistent in a scenario in which an armed
victim is warding off an armed assailant.”).
On cross-examination, Clements confirmed that he had never been qualified
as an expert in ballistics, had never been to any law enforcement training regarding
firearms, and had never been to any training for crime scene reconstruction. Further,
while Clements testified about how he conducted the test firing, he did not testify
about his methodology in using that test firing to determine Appellant’s location at
the scene. In light of the wide discretion we give the trial court regarding the
admissibility of expert testimony, we cannot say that the trial court abused its
discretion in determining that Clements was not qualified to testify in an expert
38
capacity about Appellant’s location. See Rhomer, 569 S.W.3d at 669 (citing
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). We overrule
Appellant’s eleventh issue. 8
The Right to Present a Defense
In Appellant’s tenth issue, he asserts that he was prevented from presenting
his defense “that the pattern of casings ejected from the weapon . . . indicate[s] that
all shots were fired forward and in defense of another.” We have already determined
that Clements was not qualified to testify as an expert and that his testimony that
Appellant was shooting from his property was properly excluded. However,
Appellant’s trial counsel also asserted that Clements could testify as a fact witness
about “the pattern of shells that were ejected from this firearm under controlled
conditions.” On appeal, Appellant contends Clements’s testimony as a fact witness
on what he observed made a fact of consequence more or less probable. See TEX.
R. EVID. 401 (Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence, and the fact is of consequence in
determining the action.).
We review a trial court’s decision to admit or exclude an out-of-court
experiment for an abuse of discretion. Ginther v. State, 672 S.W.2d 475, 477 (Tex.
Crim. App. 1984). An out-of-court experiment is generally admissible so long as
the experiment was made under similar conditions to the event in which the
experiment relates. Esquivel v. State, 595 S.W.2d 516, 529 (Tex. Crim. App. 1980).
A trial court will abuse its discretion if it excludes an experiment that was
affirmatively shown to be conducted under similar circumstances. Ginther, 672
S.W.2d at 477 (citing Hodge v. State, 131 S.W. 577 (Tex. Crim App. 1910)).
Appellant also asserts that the trial court prevented Appellant from presenting a defense when it
8
excluded Clements’s expert testimony based on Appellant’s failure to timely designate him as a witness.
See CRIM. PROC. art. 39.14(b). Because we have determined that the trial court properly determined that
Clements was not qualified to testify as an expert, we do not address this contention.
39
However, a trial court will not abuse its discretion in excluding an experiment that
is substantially dissimilar to the actual event. Id. (citing Herrin v. State, 525 S.W.2d
27 (Tex. Crim. App. 1975)); see Esquivel, 595 S.W.2d at 529.
The trial court did not abuse its discretion in excluding Clements’s testimony
about the ejection pattern of shell casings under controlled conditions because the
experiment was so dissimilar to the actual conditions that it would not have aided
the jury. See Ginther, 672 S.W.2d at 477; Montgomery, 810 S.W.2d at 380. Four
years had passed between the incident and Clements’s test firing. Clements did not
conduct the test firing at the Gonzalez residence, and he testified that he had never
been to the scene of the incident. Clements testified that he was not asked to replicate
conditions such as weather and ground conditions that were present on the night of
the incident. While eyewitness testimony indicated that Appellant was moving
while shooting, Clements stood in a fixed position and did not move during the test
firing. There is no evidence in the record regarding Clements’s height versus
Appellant’s height or Clements’s ability to control the firearm versus Appellant’s
ability to control the firearm.
Thus, there are numerous important differences between Appellant’s shooting
of the firearm on the night of the murder and Clements’s test firing four years later.
Clements’s test firing is substantially dissimilar from the actual event; therefore, the
trial court did not abuse its discretion in excluding Clements’s testimony about his
test firing under controlled conditions. See Ginther, 672 S.W.2d at 477 (citing
Herrin, 525 S.W.2d 27).
Finally, we briefly note that Appellant’s defensive theory that he remained on
his property was not wholly excluded by the trial court’s decision to exclude
Clements’s testimony. Gregorio testified that Appellant was inside the property line
when he was shooting and did not walk onto the road. Appellant’s trial counsel was
able to fully develop Gregorio’s testimony, an eyewitness, on this issue during trial.
40
The jury was free to accept or reject Gregorio’s testimony. See Braughton, 569
S.W.3d at 611. We overrule Appellant’s tenth issue.
Confrontation Clause
In Appellant’s twelfth issue, he asserts that the trial court’s decision to exclude
Clements’s testimony “denied his right to confrontation” under the Sixth
Amendment because he was unable to “confront the witnesses against him by the
production and presentation of favorable evidence in defense of the [S]tate’s case.”
Appellant has conflated the right to present witnesses in his defense with the right to
confront the State’s witnesses and challenge the witnesses’ testimony through cross-
examination. See Washington v. Texas, 388 U.S. 14, 19 (1967) (“Just as an accused
has the right to confront the prosecution’s witnesses for the purpose of challenging
their testimony, he has the right to present his own witnesses to establish a
defense.”).
“The Confrontation Clause ‘provides two types of protections for a criminal
defendant: the right physically to face those who testify against him, and the right to
conduct cross-examination.’” London v. State, 526 S.W.3d 596, 600 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d) (quoting Pennsylvania v. Ritchie, 480 U.S. 39,
51 (1987)); see U.S. CONST. amend. VI. Here, Appellant is not asserting that he was
deprived of the right to physically face the witnesses who testified against him; nor
does he assert that he was not allowed to cross-examine witnesses. Rather, Appellant
is contending that the exclusion of Clements’s testimony deprived Appellant of the
chance to offer favorable evidence that rebutted the State’s theory that Appellant
“was in the middle of the street firing downward” at Bernard. This argument pertains
to Appellant’s right to present evidence in his defense—not Appellant’s right to
confront the witnesses who testified against him. See Washington, 388 U.S. at 19.
Therefore, Appellant has not presented a Confrontation-Clause claim for our review.
We overrule Appellant’s twelfth issue.
41
Allegation that the State Withheld Material Exculpatory Evidence
In his thirteenth and fourteenth issues, Appellant contends that the State
withheld material impeachment evidence about Mistry Canady, the wife of the
decedent. We note at the outset that, “[o]rdinarily, a conviction is not overturned
unless the trial court makes a mistake.” Johnson v. State, 169 S.W.3d 223, 228–29
(Tex. Crim. App. 2005). Thus, most appellate issues are directed at the conduct of
the trial court rather than opposing counsel. In some limited situations, misconduct
by the prosecutor can be grounds for reversing a conviction even though the trial
court has done nothing wrong. Id. at 229 (listing the suppression of exculpatory
evidence by the prosecution as an example).
Appellant asserts that he needed the opportunity to impeach Mistry at trial
because she minimized Bernard’s “anger and actions once he found out about the
wrecked car” and his “propensity for violence and an ungovernable temper.”
Therefore, Appellant contends, the State’s alleged act of withholding impeachment
evidence regarding Mistry violated his Fifth and Fourteenth Amendment due process
rights under Brady v. Maryland, 373 U.S. 83 (1963) and Article 39.14 of the Texas
Code of Criminal Procedure.
In Brady v. Maryland, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87; see
also Ex parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019). Thus, Brady
is violated when three requirements are satisfied: (1) the State suppressed evidence;
(2) the suppressed evidence is favorable to the defendant; and (3) the suppressed
evidence is material. Lalonde, 570 S.W.3d at 724.
Article 39.14 of the Texas Code of Criminal Procedure imposes broader
discovery protections for criminal defendants, “making disclosure the rule and non-
42
disclosure the exception.” See Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim.
App. 2021); see also CRIM PROC. art. 39.14. As the Court of Criminal Appeals
explained in Watkins, Article 39.14(h) creates “an independent and continuing duty
for prosecutors to disclose evidence that may be favorable to the defense even if that
evidence is not ‘material.’” Watkins, 619 S.W.3d at 277.
The relevant evidence was discussed at the first hearing on Appellant’s first
motion for new trial. Appellant’s trial counsel testified that he first learned Mistry
was a target of a federal fraud conspiracy investigation during the jury’s punishment
deliberations. Appellant’s trial counsel testified that, had he known about Mistry’s
involvement during trial, he would have questioned her about it; Appellant’s trial
counsel viewed Mistry’s involvement as “an additional reason to be biased or have
animus” against Appellant “because of [her] need to curry favor to [sic] the federal
prosecutors.”
When Appellant’s counsel on appeal questioned Mistry at the hearing on the
motion for new trial about her contacts with the FBI, Mistry revealed that the FBI
had contacted her in October 2018, eight months before trial. Because Appellant’s
trial counsel testified that he was never informed of this contact, his appellate
counsel sought to determine whether the State was aware of the October 2018
contact at the time of the trial.
Appellant contends the motion-for-new-trial record makes it clear that Mistry
had informed the State about the October 2018 contact before trial. In contrast, the
State contends that the record shows Mistry informed defense counsel about the
October 2018 contact before trial. However, after reviewing the record, we find that
neither interpretation is supported.
Notably, the record demonstrates initial confusion in Mistry’s answers to
questions about whether she informed the State and/or defense counsel about the
October 2018 contact. However, appellate counsel clarified the record as follows:
43
Q: Okay. So, let me make this really clear. You called the State District
Attorney’s Office and told them the FBI wanted to talk to you; is that
right?
A: Not the FBI.
Q: I’m sorry.
A: Hurley’s office.
Q: I’m sorry?
A: Somebody from Hurley, with Hurley.
Q: Okay. Did you ever tell the State that the federal agents wanted to
talk to you in the other investigation?
A: No ma’am. I didn’t know I needed to.
Q: Okay. And, so, you did not call the D.A.’s Office to tell them --
A. No.
Q. -- about the federal investigation?
A. No. Well, I -- no, ma’am, I didn’t know I needed to.
Q: Okay. And you never told anyone in the courtroom before you
testified or afterwards that you were under investigation?
A. I didn’t know I was under investigation. A company I worked for
was under investigation. But, no, ma’am, I didn’t know I needed to.
Q. Okay. And did you tell anyone from the State that they wanted --
that is the federal authorities, wanted to interview you about that
matter?
A. No, ma’am.
Upon a full review of the pertinent testimony, Mistry testified that she did not inform
the State or defense counsel that the FBI had contacted her prior to trial. Rather,
Mistry testified that she informed the District Attorney’s Office that an employee of
Dan Hurley, Appellant’s trial counsel, had attempted to contact her. Therefore, the
State did not violate Article 39.14 or Appellant’s due process rights by failing to
44
disclose information that Mistry had never provided the State with in the first place.9
See CRIM. PROC. art. 39.14(h) (“[T]he State shall disclose to the defendant any
exculpatory, impeachment, or mitigating . . . information in the possession, custody,
or control of the state that tends to negate the guilt of the defendant or would tend
to reduce the punishment for the offense charged.”) (emphasis added); Pena v. State,
353 S.W.3d 797, 810 (Tex. Crim. App. 2011) (“Brady and its progeny do not require
prosecuting authorities to disclose exculpatory information to defendants that the
State does not have in its possession and that is not known to exist.”) (quoting
Hafdahl v. State, 805 S.W. 2d 396, 399 n.3 (Tex. Crim. App. 1990)); see also Wells
v. State, No. 05-21-00855-CR, 2023 WL 5424313, at *12 (Tex. App.—Dallas Aug.
23, 2023, no pet. h.) (“Brady does not require the State to disclose exculpatory
information that it does not know exists. Nor does the State have any duty to seek
out such information independently on the defendant’s behalf.”) (citations omitted).
We overrule Appellant’s thirteenth and fourteenth issues.
Denial of Motion for New Trial 10
In Appellant’s eighteenth issue, he contends that the trial court erred in
denying his motion for new trial because (1) the State withheld material exculpatory
impeachment information about Mistry from Appellant; (2) evidence was introduced
at the hearing showing that the shots Appellant fired were “low and ricocheted off
the road,” indicating that Appellant did not intend to kill Bernard 11; (3) Clements
was qualified to be an expert and testify at trial; (4) Juror Eleven’s affidavit showed
9
We also note that the District Attorney confirmed during the hearing that the District Attorney’s
office had no knowledge that Mistry was the target of a federal investigation before trial. Therefore, the
State never possessed the information of which Appellant complains.
As we previously noted, Appellant’s fifteenth, sixteenth, and seventeenth issues concern the
10
manner in which the trial court conducted the initial hearing on Appellant’s motion for new trial. We
sustained those issues upon initial submission by abating the proceeding for a new evidentiary hearing on
the motion for new trial.
11
Appellant did not contest the element of intent at trial.
45
that Appellant was convicted by a nonunanimous jury; and (5) Juror Five did not
inform trial counsel during voir dire that he worked at Spike Dykes Ford with Mistry.
“We review a trial court’s denial of a motion for new trial under an abuse of
discretion standard.” McQuarrie, 380 S.W.3d at 150. We do not substitute our
judgment for the trial court’s judgment but, instead, determine whether the trial
court’s decision was arbitrary or unreasonable. Colyer v. State, 428 S.W.3d 117,
122 (Tex. Crim. App. 2014). “We view the evidence in the light most favorable to
the trial judge’s ruling and presume that all reasonable factual findings that could
have been made against the losing party were made against that losing party.” Id.
When denying a motion for a new trial, a trial court abuses its discretion only if no
reasonable view of the record could support the ruling. Id.
We have already determined that the State did not withhold material
exculpatory impeachment information about Mistry; that the trial court did not abuse
its direction by determining that Clements was not qualified to testify in either an
expert or a lay witness capacity; and that Appellant was convicted by a unanimous
jury. We now turn to Appellant’s remaining assertions—that his motion for new
trial should have been granted because (1) evidence introduced during the hearing
showed that the shots Appellant fired were low and ricocheted off the road; and
(2) Appellant would have stricken Juror Five from the jury panel if the juror had
disclosed that he worked at Spike Dykes Ford.
Appellant attempted to introduce ballistics evidence at the motion-for-new-
trial hearing through an affidavit prepared by Texas Burrell. Burrell’s affidavit
stated that he was a Coast Guard Gunners Mate, a federal law enforcement officer,
and a law enforcement shooting instructor, and that he had completed training
courses about firearms. In his affidavit, Burrell stated that his “observation of the
photos of bullet and bullet fragments collected is that they are more consistent with
a bullet that has impacted or passed through a hard medium”; in support, the affidavit
46
included reproduced photographs depicting a jacket that “sustained excessive
damage,” a lead core separated from a bullet’s copper jacket that was “abnormally
deformed,” and “an oblong entrance hole” on Bernard’s body. Burrell also stated in
his affidavit that the location of the spent shells were consistent with Appellant
“having fired from within his own property and convince[d] [him] that he did not
enter the public roadway.”
However, Appellant did not offer Burrell as an expert to testify during trial.
The trial court ruled that it was not going to allow testimony from a person who did
not testify at trial to be presented at the initial hearing on the motion for new trial
and held that Burrell’s testimony and affidavit were not relevant to the motion for
new trial. The trial court allowed Appellant to submit Burrell’s affidavit as part of
trial counsel’s “bill of exception.”
“Trial courts do not have the discretion to grant a new trial unless the
defendant demonstrates that his or her first trial was seriously flawed and that the
flaws adversely affected the defendant’s substantial rights to a fair trial.” D. Mark
Elliston & Terrence W. Kirk, 3 Texas Practice: Criminal Practice and Procedure
§ 27:6 (2023) (Motion for New Trial—Rule does not provide exclusive grounds).
Appellant did not specify the grounds on which he was attempting to introduce
Burrell’s expert testimony at the hearing on the motion for new trial, and he does not
elaborate on either in his brief.
Nevertheless, we note that a defendant who files a motion for new trial based
on newly discovered evidence must show that (1) the newly discovered evidence
was unknown or unavailable to the defendant at the time of trial; (2) the defendant’s
failure to discover or obtain the new evidence was not due to the defendant’s lack of
due diligence; (3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and (4) the new evidence is probably true
and will probably bring about a different result in a new trial. State v. Arizmendi,
47
519 S.W.3d 143, 149 (Tex. Crim. App. 2017); see CRIM. PROC. art. 40.001 (West
2018). Where a defendant has not satisfied all four prongs of the test, a trial court
does not abuse its discretion in denying a motion for new trial. See Arizmendi, 519
S.W.3d at 148–49.
There is nothing in the record that indicates that Appellant was unaware of the
potential ricochet patterns of the bullets or their fragments; nor was there anything
in the record indicating that Burrell was unable to testify at trial. Officer Bradley
testified that some of the bullets recovered from the scene could have been damaged
by ricocheting off pavement. Therefore, the jury was presented with some evidence
that Appellant could have fired some of the shots from an angle that would have
caused the bullets to ricochet off pavement. Thus, the jury’s guilty verdict indicates
a rejection of the theory that bullets or fragments that possibly ricocheted off
pavement established a lack of intent. 12 Accordingly, additional evidence would
have been cumulative and unlikely to change the outcome of the trial. The trial court
did not abuse its discretion in excluding Burrell’s affidavit and testimony.
Appellant also asserts that Juror Five testified in the second hearing on the
motion for new trial that “he knew Mistry Canady long before the trial in this cause
and that information was never relayed to defense counsel.” Juror Five worked at
Spike Dykes Ford at the same time as Mistry. Appellant’s trial counsel stated during
the hearing that, had he known that information, he would have moved to strike Juror
Five from the panel due to the possibility that Juror Five would be biased in favor of
12
To the extent Burrell’s affidavit or testimony was purporting to support any theory that Appellant
did not cause Bernard’s death by shooting Bernard with the firearm, but instead that Bernard’s death was
caused by a fatal bullet or bullet fragment ricocheting off pavement, we note that Appellant’s trial counsel
stipulated that the cause of death “was due to gunshot wounds by a gun fired by [Appellant]” and that
“[t]here’s no contested issue about that.” Further, Dr. Parsons testified that, while two of the gunshot
wounds to Bernard’s knee and lower left leg had irregular or “less regular” entry points, the fatal gunshot
wound and the remaining gunshot wound showed “no evidence of a ricochet.”
48
Mistry. On appeal, Appellant contends that he was harmed by Juror Five’s failure
to disclose that he was employed by Spike Dykes Ford at the same time as Mistry.13
“The voir dire process is designed to insure, to the fullest extent possible, that
an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty
assigned to it.” Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995)
(per curiam); see Barnett v. State, 420 S.W.3d 188, 191–92 (Tex. App.—Amarillo
2013, no pet.). When a juror withholds material information in the voir dire process,
the parties are denied the opportunity to intelligently exercise their challenges and
obtain a disinterested and impartial jury. Armstrong, 897 S.W.2d at 363. To be
material, the information withheld must be of a type suggesting potential for bias or
prejudice. Barnett, 420 S.W.3d at 192. It is incumbent upon defense counsel to ask
questions calculated to elicit information that might indicate a juror’s inability to be
impartial and truthful. Armstrong, 897 S.W.2d at 363–64. Unless defense counsel
asks such questions, the material information that the juror fails to disclose is not
“withheld.” Id. at 364.
During voir dire, the District Attorney questioned the jury panel about
whether they knew “Bernard Canady.” Several potential jurors responded in the
affirmative and in doing so, some indicated that they knew Mistry either personally
or through work, including three who stated they knew Mistry because they worked
with her at Spike Dykes. Juror Five did not advise the attorneys or the trial court
that he knew Mistry or that he worked with her at Spike Dykes Ford.
Appellant’s counsel on appeal submitted a declaration prepared by Bernie in
support of Appellant’s motion for new trial. In his declaration, Bernie stated that
both Juror Five and Mistry were employed at Spike Dykes Ford with Bernie and that
13
Appellant also briefly contends the harm Appellant suffered by the inclusion of a biased juror on
the panel was compounded by another juror’s “[taking] over the panel and [using] his position to force
other jurors to capitulate to his position and render a verdict of guilty.” We note that nothing in the record
properly before us indicates that any juror was pressured into their verdict. See TEX. R. EVID. 606(b)(1).
49
a salesman had told Bernie that Mistry would talk to people at work about Bernard’s
death—including Juror Five.
At the initial hearing on the motion for rehearing, Juror Five testified that he
worked at Spike Dykes Ford at the same time that Mistry worked there, but that he
“never knew her” and he “had no knowledge of her husband dying before the trial.”
At the remanded motion-for-new-trial hearing, Juror Five testified that the
questioning at voir dire concerned “just Bernard’s name,” that he only knew Mistry
worked at Spike Dykes Ford, and he did not “know Mistry good enough to know
that Bernard was her husband or anything of that sort.” Juror Five further testified
that he felt that he was qualified to serve on the jury because his knowledge that
Mistry worked at Spike Dykes Ford “wasn’t going to affect anything as far as [his]
judgment.” Juror Five confirmed that he worked in a different department than
Mistry, did not spend any time with Mistry, had no “real interaction” with Mistry,
and did not discuss any details of Bernard’s death with her. Juror Five also stated
that his verdict was not influenced by working at the same place as Mistry.
The trial court entered findings of fact and conclusions of law after the
remanded-motion-for-new-trial hearing. The trial court found that “no bias on the
part of [Juror Five] existed to the effect that he could not have been an impartial
juror and that [Juror Five] had no duty to volunteer information to defense counsel
during voir dire that disclosed his knowledge of Mrs. Canady’s existence, at all or
at Spike Dykes Ford.”
We defer to the trial court’s credibility determinations regarding Bernie’s
affidavit and Juror Five’s testimony. See Rhodes v. State, 308 S.W.3d 6, 13 (Tex.
App.—Eastland 2009, pet. ref’d, untimely filed) (citing Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997)). Based on the trial court’s findings of fact
and conclusions of law, in addition to the fact that Appellant’s trial counsel chose
not to elaborate on the District Attorney’s questions about whether jurors personally
50
knew Mistry, we cannot say that the trial court abused its discretion in denying
Appellant’s motion for new trial. See Colyer, 428 S.W.3d at 122; Armstrong, 897
S.W.2d at 363–64. We overrule Appellant’s eighteenth issue.
Limiting Examination of Investigator
In his nineteenth through twenty-first issues, Appellant contends that the trial
court impermissibly limited his trial counsel’s examination of Investigator Darrel
Williams and violated his right to a fair trial. Specifically, Appellant’s trial counsel
sought to question Williams about an internal affairs investigation that Williams was
the subject of and a former job application Williams had completed. The trial court
denied both requests.
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.
2016) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)). “A
trial judge abuses his discretion when his decision falls outside the zone of
reasonable disagreement.” Id. (citing Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010)).
The Sixth Amendment right to cross-examine a witness allows a party to
attack the general credibility of that witness or to show their possible bias, self-
interest, or motives in testifying. Hammer, 296 S.W.3d at 561. A defendant may
elicit, on cross-examination, facts intended to show a witness’s bias. TEX. R.
EVID. 613(b); Carroll v. State, 916 S.W.2d 494, 500 (Tex. Crim. App. 1996). Parties
are allowed great latitude to show any relevant fact that would establish or might
tend to establish ill feeling, bias, motive, or animus on the part of the witness.
Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998); London v. State,
739 S.W.2d 842, 846 (Tex. Crim. App. 1987).
Despite this latitude, “[t]he defendant is not entitled to ‘cross-examination that
is effective in whatever way, and to whatever extent,’ he might wish.” Johnson, 490
51
S.W.3d at 909–10 (quoting Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim. App.
2014)). A trial judge retains the discretion to impose reasonable limits on such
cross-examination to avoid harassment, prejudice, confusion of the issues,
endangering the witness, marginally relevant evidence, or when the subject of the
examination has been exhausted. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim.
App. 2010) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Appellant’s trial counsel called Williams to testify about the investigation he
conducted regarding the shooting. Appellant’s appellate counsel states that the
defensive theory was that the investigation was incomplete and “entirely focused on
charging [Appellant] with murder.” For this issue, Appellant states that in presenting
Williams at trial, Appellant sought to establish that Williams was “biased in favor”
of Bernard’s family and that he “lacked veracity,” because “[s]uch an investigation
denies due process.” Appellant’s trial counsel sought to impeach Williams’s
veracity by offering an internal investigation file and an employment application.
The trial court conducted an in-camera inspection of the file and informed trial
counsel that he was denying Appellant’s request to impeach Williams with the file
because “there’s nothing in there that relates to any type of misleading reports . . .
being altered or anything of that nature. So . . . there’s nothing having to do with his
truth and veracity.” The trial court allowed the file to be sealed and made a part of
the record. The trial court also denied Appellant’s trial counsel’s request to question
Williams about his employment application. The application was marked for
identification and is included in the record.
Our independent review of the sealed file confirms that the trial court did not
abuse its discretion in excluding the file. The file did not involve any credibility
issues with which Appellant’s trial counsel could have impeached Williams. In
addition, the information Appellant’s trial counsel sought to present to the jury was
that Williams did not include on his application a prior investigation related to
52
specific instances of Williams’s conduct. Williams testified that he was informed
during his interview that he did not need to include the investigation in his
application because the investigation had already been discussed during his
interview. Appellant contends that the application would have shown that Williams
tends to withhold information, just as he allegedly withheld information in the report
that he made during the investigation into the events surrounding this case.
Appellant sought to use specific instances of Williams’s conduct in order to
attack his character for truthfulness. Rule 608(b) of the Texas Rules of Evidence
provides that “[e]xcept for a criminal conviction under Rule 609, a party may not
inquire into or offer extrinsic evidence to prove specific instances of the witness’s
conduct in order to attack or support the witness’s character for truthfulness.”
TEX. R. EVID. 608(b). Thus, the trial court acted within its discretion by excluding
the proffered instances to challenge Williams’s truthfulness. See Harper v. State,
No. 14-19-00736-CR, 2021 WL 5183571, at *7 (Tex. App.—Houston [14th Dist.]
Nov. 9, 2021, no pet.) (mem. op., not designated for publication).
Appellant’s trial counsel contends that the file offers evidence to support a
theory that Williams was biased towards Mistry. On this issue, we note that
Appellant’s trial counsel did not offer the file in an effort to show bias on the part of
Williams. Instead, Appellant’s trial counsel asserted that, “The Court received a
personnel file on [the witness], and I don’t know if [Williams] is going to be called
today or not, but our belief is there are matters contained in that that could be
exculpatory.” To the extent appellate counsel states that the trial court erred in
excluding evidence of the file to show Williams’s bias towards Mistry, we note that
the content and subject of the file were wholly unrelated to the case before us and
involved persons that were unrelated or possibly unknown to Mistry. Moreover,
Appellant’s trial counsel questioned Williams about any potential bias towards
Mistry in the presence of the jury, and Williams testified that he “had no bias. I --
53
toward anyone.” Upon further cross examination, Williams confirmed that he had
been to Mistry’s home “[m]aybe twice” and had conversations with Mistry
“possibly” more than twenty times since Bernard’s death. Therefore, the jury was
able to consider Williams’s contacts with Mistry and determine whether Williams
possessed any bias in favor of Mistry or the Canady family. We overrule Appellant’s
nineteenth through twenty-first issues.
Hearsay
In his twenty-second issue, Appellant contends that the trial court abused its
discretion when it admitted Nicholas’s written statement over defense counsel’s
objection. At trial, the State offered Nicholas’s statement during Officer Arguijo’s
testimony—after Nicholas had testified about the incident and the inconsistencies in
his statement. Defense counsel objected to the admission of the statement on hearsay
grounds, asserting that Nicholas was present and could testify about his statement
himself. The trial court overruled defense counsel’s objection. Defense counsel
asserted a second objection and re-urged that the statement was inadmissible. The
trial court overruled defense counsel’s second objection and granted Appellant a
running objection to the admission of Nicholas’s statement.
Appellant asserts that the trial court erred in admitting Nicholas’s statement
because “[t]he State never even attempted to meet its burden of establishing an
exception to the rule against hearsay that the statement would have fallen under,”
therefore the trial court’s decision to admit the statement “was not guided by any
rules of law or principles.” Appellant focuses on the portions of Nicholas’s
statement that read, “I never saw Bernard with a knife” and “everyone was telling
[Appellant] to stop shooting.” Appellant asserts that he was harmed by the
admission of Nicholas’s statement because the State took the aforementioned
portions “out of context” and used them as “substantive evidence” that Bernard did
not display a knife during the incident.
54
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
We uphold a trial court’s evidentiary ruling if it is correct on any theory of law that
finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim.
App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no
pet.).
Both of the quotes cited by Appellant in Nicholas’s statement had already
been presented to the jury before the statement itself was admitted. The State
questioned Nicholas about both portions of his statement during his direct
examination.14 Thus, even if Nicholas’s statement was hearsay and erroneously
admitted, the contents of Nicholas’s statement had already been extensively
discussed during Nicholas’s testimony, making the statement’s admission harmless
if any error occurred with its admission. See Hudson v. State, 675 S.W.2d 507, 511
(Tex. Crim. App. 1984) (“[I]t is well settled that an error in admission of evidence
is cured where the same evidence comes in elsewhere without objection.”); see also
Huff v. State, 560 S.W.2d 652, 654 (Tex. Crim. App. 1978) (“[I]f the fact to which
the hearsay admitted relates is sufficiently proved by other and competent evidence,
the admission of the hearsay objected to may properly be deemed harmless.”);
Nicholls v. State, 630 S.W.3d 443, 449 (Tex. App.—Eastland 2021, pet. ref’d);
Mendoza v. State, 69 S.W.3d 628, 633 (Tex. App.—Corpus Christi–Edinburg 2002,
14
We also note that both Nicholas and Officer Arguijo discredited Nicholas’s statement at trial.
First, Nicholas was given the opportunity to explain and correct his statement— he testified that he was not
truthful throughout the entire statement; that, while his written statement was that Bernard did not have a
knife, he actually did not know what Bernard had in his hand; and that no one told Appellant to stop
shooting. Further, while Officer Arguijo testified that Nicholas wrote in his statement that Bernard did not
have a knife, Officer Arguijo confirmed that “a knife [was] involved in this case.”
55
pet. ref’d); see also TEX. R. APP. 44.2(b). Because Nicholas’s statement was
cumulative of other evidence, we overrule Appellant’s twenty-second issue.
Modification of Judgment
As we previously noted, the trial court’s judgment incorrectly reflects the
provision of the Texas Penal Code for which Appellant was convicted. An appellate
court has the power to modify the trial court’s judgment to make the judgment
speak the truth when it has the necessary information before it to do so. See TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993). Because we have the necessary information to make the judgment speak the
truth, we modify the judgment of the trial court to reflect the correct statute of
conviction as Section 19.02(b)(1) of the Texas Penal Code.
This Court’s Ruling
As modified, we affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 29, 2023
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
56
APPENDIX
57
Order filed August 12, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00274-CR
__________
DIMAS GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 15-7565
ORDER
The jury convicted Dimas Gonzales 15 of murder and assessed his punishment
at confinement for a term of forty-five years in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ). As relevant to this order, Appellant asserts
in his seventeenth issue that the trial court denied his right to a public hearing—as
required by the Sixth and Fourteenth Amendments—at the evidentiary hearing on
his motion for new trial. Because we find that Appellant’s Sixth Amendment right
15
We note that Appellant’s name as it appears in the indictment is Dimas Gonzales and that the
name as reflected in the judgment is Dimas Gonzalez.
58
to a public trial was violated, we abate this appeal and remand the cause to the trial
court for a new evidentiary hearing on Appellant’s motion for new trial.
Procedural History
Appellant filed a motion for new trial alleging, among other things, that he
was deprived of the opportunity to put on a defense through the denial of expert
testimony that he sought to offer, that he was convicted by a nonunanimous jury,
and that the State withheld impeachment evidence for its witnesses. In connection
with the hearing on the motion for new trial, Appellant was incarcerated at the time;
therefore, his trial counsel filed a request for a bench warrant to procure his
attendance, which the trial court denied. Instead, the trial court notified the TDCJ
of Appellant’s hearing and requested that Appellant have accommodations to appear
by telephone. Appellant objected to the denial of the bench warrant in writing before
the hearing.
Appellant was not physically present at the hearing on Appellant’s motion for
new trial. The trial court placed Appellant on a speaker phone and directed
Appellant to “keep [his] voice up” if he asked a question or if Appellant had
“something that [he] need[ed] to talk to [counsel] about.” In his brief, Appellant
notes that no arrangements were made for him to communicate with his counsel in
a confidential manner.
When the hearing commenced, Appellant’s counsel immediately objected to
Appellant’s absence. Appellant’s counsel also objected on the grounds that the
hearing was closed to the public and held in a conference room rather than in open
court. The trial court summarily overruled Appellant’s objections. Neither the trial
court nor the State made any comment on the record about whether the hearing was
closed to the public.
59
During the hearing, Appellant experienced a technical issue and his call
temporarily dropped. After the technical issue, and during some downtime while
switching between witnesses, Appellant’s counsel renewed the objections:
[DEFENSE COUNSEL]: Your Honor, in this open time, I will
just make a record of the fact that we are in a conference room, that
only the lawyers, the Court, the court reporter, and the witness under
inquiry has been present during these entire proceedings.
THE COURT: That’s correct, counsel. And for the record, the
Court allowed this Motion for New Trial to be heard rather than
allowing it to be overruled by operation of law.
In total, Appellant’s counsel called five witnesses at the hearing on the motion for
new trial, and he introduced photographic evidence of the crime scene. At the
conclusion of the hearing, the trial court denied Appellant’s motion for new trial.
Analysis
“The Sixth Amendment of the United States Constitution guarantees an
accused the right to a public trial in a criminal prosecution.” Lilly v. State, 365
S.W.3d 321, 328 (Tex. Crim. App. 2012) (citing U.S. CONST. amend. VI);
Steadman v. State, 360 S.W.3d 499, 504 (Tex. Crim. App. 2012) (same). 16 The right
to a public trial “is necessary to insure that jurors, prosecutors, and the court are kept
aware of their sense of responsibility and can properly carry out their functions.”
Cameron v. State, 490 S.W.3d 57, 61 (Tex. Crim. App. 2014) (citing Waller v.
Georgia, 467 U.S. 39, 46 (1984)). A violation of this right is a structural error that
does not require any showing of harm. Id.; Lilly, 365 S.W.3d at 328.
“Trial courts are obligated to take every reasonable measure to accommodate
public attendance at criminal trials.” Dixon v. State, 595 S.W.3d 216, 224 (Tex.
Crim. App. 2020) (quoting Presley v. Georgia, 558 U.S. 209, 215 (2010)). “[A] trial
16
We note that both Lilly and Steadman were appeals to the Texas Court of Criminal Appeals from
this court.
60
is public, in the constitutional sense, ‘when a courtroom has facilities for a
reasonable number of the public to observe the proceedings.’” Id. at 225 (quoting
Estes v. Texas, 381 U.S. 532, 539 (1965)).
The text of the Sixth Amendment refers to “trial.” However, courts have
noted that the right extends to various pretrial and posttrial proceedings. Steadman
noted that the right extends to voir dire proceedings. 360 S.W.3d at 504 (citing
Presley, 558 U.S. at 213). Lilly concerned a hearing to receive the defendant’s plea
bargain. 365 S.W.3d at 328. Waller involved a pretrial suppression hearing. 467
U.S. at 47.
The question before us is whether the right to a public trial extends to an
evidentiary hearing on a motion for new trial. This appears to be a matter of first
impression. In Steadman, the Texas Court of Criminal Appeals relied on the
Supreme Court’s analysis in Waller and Presley to determine whether the Sixth
Amendment right to a public trial extends beyond the actual proof offered at trial.
Steadman, 360 S.W.3d at 504. In Waller, the Court noted that “a suppression hearing
often resembles a bench trial: witnesses are sworn and testify, and of course counsel
argue their positions. The outcome frequently depends on a resolution of factual
matters.” Waller, 467 U.S. at 47. The Court also emphasized the need for an open
proceeding when a defendant challenges the conduct of state actors like police and
prosecutors. Id. In Presley, the Court relied on Waller to conclude that the right to
a public trial extends to voir dire proceedings. 558 U.S. at 723–24. Thus, in
determining when the right to a public trial is implicated in a non-trial proceeding,
courts have often used the principles of adjudication to determine when the right
attaches.
The State contends that the right to a public trial does not extend to an
evidentiary hearing on a motion for new trial. To support its contention, the State
cites to Vera v. State, 836 S.W.2d 344, 348 (Tex. App.—Amarillo 1992, no pet.),
61
and asserts that a hearing on a motion for new trial is “fundamentally a part of the
post-trial review process, and not a part of the trial itself.” However, we find that
the State’s reliance on Vera is misplaced. Vera addressed an instance where the trial
court failed to timely set a hearing on a defendant’s motion for new trial—allowing
the motion to be erroneously overruled by operation of law. 836 S.W.2d at 348.
There, the court’s comment that a hearing on a motion for new trial is not “part of
the trial itself” was in support of the court’s remedy—an abatement—to correct an
error and allow proper presentment of the cause on appeal. Id. Stated simply,
because the error involved was a posttrial procedural error, Vera did not require a
remand for a new trial; instead, the error could be remedied with a remand to correct
a posttrial proceeding. Id.
We find the analysis in Waller to be persuasive. 467 U.S. at 47. An
evidentiary hearing on a motion for new trial is analogous to the cases cited above
that look to the importance of the accused’s right to a public trial and the policy
behind the presumption of an open court. “The purpose of a hearing on a motion for
new trial is to: (1) ‘decid[e] whether the cause shall be retried’ and (2) ‘prepare a
record for presenting issues on appeal in the event the motion is denied.’” Smith v.
State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009) (quoting State v. Gonzalez, 855
S.W.2d 692, 695 (Tex. Crim. App. 1993) (plurality opinion)). An evidentiary
hearing on a motion for new trial is a criminal defendant’s “only opportunity to
present to the trial court certain matters that may warrant a new trial, and to make a
record on those matters for appellate review.” Trevino v. State, 565 S.W.2d 938,
940 (Tex. Crim. App. 1978) (discussing the right to counsel at a posttrial hearing).
The Thirteenth Court of Appeals recognized that a hearing on a motion for new trial
“justifies the full panoply of adversary safeguards; that is, counsel, confrontation,
cross-examination, and compulsory process for witnesses.” See Lopez v. State, 895
62
S.W.2d 392, 394 (Tex. App.—Corpus Christi 1994, no pet.) (citing Trevino, 565
S.W.2d at 940).
The evidentiary hearing on Appellant’s motion for new trial involved sworn
testimony of witnesses, arguments of counsel, and an allegation that “the State
withheld impeachment evidence on their witnesses.” These factors made the
proceeding like a trial, as was the case with the suppression hearing in Waller. See
467 U.S. at 47. Accordingly, we hold that the right to a public trial under the Sixth
Amendment attached to the evidentiary hearing on Appellant’s motion for new trial.
The next question we must consider is whether the evidentiary hearing on
Appellant’s motion for new trial was closed to the public. “This is a question to be
determined on a case-by-case basis in light of the totality of the evidence.”
Cameron, 490 S.W.3d at 62 (citing Lilly, 365 S.W.3d at 330). Appellant asserts that
his hearing was closed to the public because it was held in a conference room and
he had family members that were not allowed to attend. Conversely, the State
contends that “all [A]ppellant’s family had to do if they did wish to attend was to
communicate with [A]ppellant’s counsel.” The State also asserts that Appellant cites
to no evidence that members of the public were excluded from the conference room.
However, “the focus is not on whether the defendant can show that someone was
actually excluded. Rather, a reviewing court must look to the totality of the evidence
and determine whether the trial court fulfilled its obligation ‘to take every reasonable
measure to accommodate public attendance at criminal trials.’” Lilly, 365 S.W.3d
at 331 (quoting Presley, 558 U.S. at 215).
As noted in Cameron, “[i]t is well established that ‘this Court accepts as true
factual assertions made by counsel which are not disputed by opposing counsel.’”
490 S.W.3d at 62 (quoting Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim.
App. 2005)). Thus, we accept as true Appellant’s counsel’s statement that the
evidentiary hearing was closed to the public. See id. Furthermore, the trial court
63
acknowledged that the hearing was closed to the public by its comment to the effect
of “[t]hat’s correct, counsel.”
The next matter to consider is whether the trial court was justified in closing
the proceeding to the public. As noted by the Texas Court of Criminal Appeals in
Cameron, the Waller test is used to determine if the closure was constitutionally
justified under the Sixth Amendment. Id. “Under Waller, a closure will be justified
only if the trial court makes findings that closure is necessary to protect an overriding
interest and the closure is narrowly tailored to protect that interest.” Id. at 63 (citing
Waller, 467 U.S. at 45). “A court also must consider all reasonable alternatives to
closure.” Id. (citing Presley, 558 U.S. at 215; Steadman, 360 S.W.3d at 509). When
a criminal defendant’s trial is closed, “[(1)] the party seeking to close the hearing
must advance an overriding interest that is likely to be prejudiced, [(2)] the closure
must be no broader than necessary to protect that interest, [(3)] the trial court must
consider reasonable alternatives to closing the proceeding, and [(4)] it must make
findings adequate to support the closure.” Lilly, 365 S.W.3d at 329 (quoting Waller,
467 U.S. at 48) (alterations in original).
The reason offered by the trial court for closing the evidentiary hearing to the
public on Appellant’s motion for new trial did not justify the closure. The trial court
did not cite any overriding interest like security concerns or room-size limitations
that would justify closure. See Cameron, 490 S.W.3d at 62–63. The trial court’s
decision to grant a request for an evidentiary hearing on a motion for new trial is a
matter of discretion. Smith, 286 S.W.3d at 339. We conclude that the discretionary
nature of this decision does not permit the trial court to dispense with the requirement
of a public trial if the trial court elects to grant a request for an evidentiary hearing
on a motion for new trial. We sustain Appellant’s seventeenth issue. The trial
court’s order denying Appellant’s motion for new trial is vacated, and the cause is
remanded for reconsideration of Appellant’s motion in accordance with this order.
64
Rule 44.4 of the Texas Rules of Appellate Procedure provides that a court of
appeals may direct a trial court to correct an error when the trial court’s error
prevents the proper presentation of a case on appeal. TEX. R. APP. P. 44.4 (a)–(b).
This rule allows the trial court to remedy an error without requiring a new trial if the
remedy will permit the appellate court to evaluate the appeal properly. LaPointe v.
State, 225 S.W.3d 513, 520–21 (Tex. Crim. App. 2007).
We have determined that Appellant was denied his right to a public hearing
on his motion for new trial. As was the case in Vera, the error occurred posttrial.
See Vera, 836 S.W.2d at 348. The scope of the error was limited to the hearing on
the motion for new trial, and it had no bearing on the prior stages of Appellant’s trial.
The appropriate remedy is to abate the appeal with instructions to the trial court to
hold an evidentiary hearing on Appellant’s motion for new trial that complies with
the public trial requirements of the Sixth Amendment. See Washington v. State, 394
S.W.3d 39, 44 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Vera, 836 S.W.2d at
348; see also McQuarrie v. State, 380 S.W.3d 145, 155 (Tex. Crim. App. 2012)
(remanding to the trial court for a new hearing on the motion for new trial when the
trial court committed errors at the first hearing).
We additionally note that Appellant asserts in his fifteenth and sixteenth issues
that the trial court erred by overruling his request to be physically present at the
evidentiary hearing on the motion for new trial. In light of our order remanding this
matter for a new hearing on the motion for new trial, we note that Appellant has a
statutory right under Article 33.03 to be “personally present” at the hearing. TEX.
CODE CRIM. PROC. ANN. art. 33.03 (West 2006); see Coons v. State, 758 S.W.2d
330, 339 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (“The defendant’s right
of attendance also includes a hearing on a motion for new trial.”); see also Gibson v.
State, 3 Tex. Ct. App. 437, 441–42 (1878). We disagree with the State’s contention
that an appearance or participation by phone constitutes being personally present
65
under Article 33.03. There is no authority for this proposition. Additionally, the
defendant’s physical presence at the hearing on the motion for new trial ensures that
the defendant can consult with counsel in a confidential manner and that his right to
confrontation is protected.
Therefore, we abate this appeal and order the trial court to hold a new hearing
on Appellant’s motion for new trial within forty-five days of the date of this order
in accordance with the public trial requirements of the Sixth Amendment and the
statutory requirement of Article 33.03 that Appellant be physically present at the
hearing. The trial court is further ordered to enter a written ruling on Appellant’s
motion for new trial within fifteen days of the hearing.
We further order (1) that the district clerk forward a supplemental clerk’s
record containing the trial court’s written ruling on Appellant’s motion for new trial
within thirty days after the trial court files its written order and (2) that the court
reporter for the 106th District Court create a supplemental reporter’s record
containing a transcript of the hearing and to file the supplemental reporter’s record
with this court within thirty days after the trial court files its written order.
Upon the filing of the supplemental clerk’s record and the supplemental
reporter’s record with this court, the appeal will be reinstated. This court will issue
further orders and instructions to the parties as necessary upon the receipt of the
record from the new hearing on Appellant’s motion for new trial.
It is so ordered.
JOHN M. BAILEY
August 12, 2021 CHIEF JUSTICE
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
66