Bobby Ray Ruiz v. the State of Texas

Opinion filed July 30, 2021

In The

Eleventh Court of Appeals
__________

No. 11-18-00267-CR
__________

BOBBY RAY RUIZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 14-4492

OPI NI ON
The State charged Appellant, Bobby Ray Ruiz, with two counts of capital
murder for causing the deaths of John Allen and Jay Doyal during the commission
of a robbery. See TEX. PENAL CODE ANN. §§ 19.02(b)(1) (West 2019), 19.03(a)(2)
(West Supp. 2020). The jury found him guilty on both counts. Because the State
did not seek the death penalty, the trial court sentenced Appellant to life
imprisonment without parole for each count. See PENAL § 12.31(a)(2); TEX. CODE
CRIM. PROC. ANN. art. 37.071, § 1 (West Supp. 2020). Appellant now raises thirteen
issues on appeal. We affirm.
I. Factual Background
This case originated in 2011 in Hobbs, New Mexico, at the house that Linda
Taber inherited when her parents passed away. Taber and her daughter, Lori Craig,
lived at the house with Taber’s aunt, who had inherited some diamond rings from
Taber’s mother, Estella Collum. Trent Ashlock was a friend of Craig’s and an addict;
he also temporarily resided at the house as Craig’s clandestine guest. Before Taber’s
aunt passed away, Ashlock found a bag in one of the bathrooms at the house; the bag
contained three diamond rings. Ashlock took the rings and went to Rolando “Rollie”
Cantu’s house in Hobbs, where Ashlock attempted to trade them for
methamphetamine. Instead, Cantu kept the rings, and Ashlock never received any
drugs in exchange for them.
Cantu initially gave one of the three diamond rings to his girlfriend, and the
mother of his son, Desirae Mata. At some point, Cantu took the ring back from Mata
and brought the three rings that he obtained from Ashlock to Allen’s house near
Seminole, Texas. Joanie Pannell, a resident of Hobbs, lived with Allen at the time,
and Cantu showed Pannell and Allen the diamond rings to determine whether
Ashlock had taken them from Allen’s house or whether the rings belonged to
Pannell. In Cantu’s presence, Pannell said that the rings were hers, but she later told
Allen, after Cantu had left, that they were not. Ultimately, Cantu left the rings with
Allen, who agreed to fence them for Cantu. Pannell also told Allen that he should
get rid of the rings right away and suggested that he try to fence them in New York
City.
In December of 2011, Allen flew to New York City with another individual,
Nathan Webster, to sell the rings there. While they were in New York City, Allen
sold the three rings for $73,000. Allen spent some of the proceeds from the sale on
2
a 2004 Maserati. Allen and Webster drove home to Texas in the Maserati. Later,
Allen and Webster split the rest of the money from the sale of the diamond rings.
In the meantime, Cantu was sentenced to a term of imprisonment, and Mata
moved in with Allen in January of 2012 after Allen returned from New York City.
Mata knew that Allen had sold the diamond rings in New York City, and Allen told
her that he had received $60,000 for them. Mata was angry because Allen had sold
“[her] diamond.” Cantu wrote to Allen from prison about some money that Allen
was to give to Mata; however, Mata never received any money from Allen. Mata’s
romantic involvement with Allen ended in April of 2012.
Around that time, Allen and Webster installed a four-camera security system
at Allen’s house. Allen had become paranoid because someone had attempted to
break into his house once while he was out of town; Allen later told Webster that he
suspected that Appellant was the one who tried to break in. Allen had also indicated
to Pannell that his cousin had presented a job opportunity for Allen in Oklahoma,
and others later noticed that Allen’s house was packed up as though he intended to
move.
On May 9, 2012, the day before Allen and Doyal were murdered, Mata and
Cantu spoke on the phone. Mata testified that, during their phone conversation, Mata
told Cantu: “That was my diamond. My diamond. F--k that. I don’t give a damn
about the money. That was my diamond. . . . F--k him. That was bulls--t. People
die over diamonds. I don’t give a damn.” To agitate Cantu, Mata then claimed that
Allen had been paid $90,000 for the diamond rings that were sold in New York City,
and she repeatedly called Cantu a “fool” for trusting Allen. Mata told Cantu that
Allen was getting ready to move to Oklahoma, so she would never see any of the
money that she was due from him. Mata also mentioned to Cantu that Appellant,
who had been shot on May 2, 2012 during an unrelated event, was no longer in the
hospital.
3
 On May 10, 2012, Texas Ranger Brian Burney received a phone call from
Gaines County Sheriff Jon Key about a double homicide in Seminole. Apparently,
Allen and Doyal had been shot and killed at Allen’s house. Allen’s body was found
in a child’s bedroom toward the back of the house, and Doyal’s body was found in
the living room. Doyal had been shot in the head and chest, and a cigarette lighter
and a methamphetamine pipe were found in one of his hands. Autopsies were
performed and revealed that both men had methamphetamine in their systems at the
time of their deaths. A red cigarette lighter was also found on the living room
windowsill. DNA was extracted from the red lighter, and the DNA test results could
not exclude Appellant as a possible contributor to the DNA profile, which was
determined to be a mixture of four individuals. However, the tested DNA sample
did exclude Allen and Doyal as possible contributors.
Detective Rodney Porter worked in the Crimes Investigation Division at the
Hobbs Police Department at the time these events occurred. From May to August
of 2012, Detective Porter assisted Sheriff Key and Ranger Burney in the
investigation of the Allen and Doyal murders. Detective Porter learned that Sheriff
Key and Ranger Burney were searching for four individuals in connection with the
murder investigation: Desirae Mata,1 Juan Castillo,2 Nicomedes Sosa, 3 and
Appellant.

1
In 2015, Mata was convicted of two counts of capital murder for the deaths of Allen and Doyal.
Mata appealed her convictions to this court, and we affirmed. See Mata v. State, No. 11-15-00081-CR,
2017 WL 2986845, at *1 (Tex. App.—Eastland July 13, 2017, pet. ref’d) (mem. op., not designated for
publication).

Juan Castillo goes by the nicknames “Smoke,” “$moke,” “Smokey,” and, sometimes, “Smoke
2

Dawg.” He was also convicted of capital murder in 2015 for the deaths of Allen and Doyal. Like Mata, he
appealed his convictions to this court, and we affirmed. See Castillo v. State, No. 11-15-00168-CR, 2017
WL 3089839, at *1 (Tex. App.—Eastland July 20, 2017, no pet.) (mem. op., not designated for publication).
3
Sosa goes by the nickname “Dan Dan.” In 2017, he pleaded guilty to two counts of first-degree
murder for the deaths of Allen and Doyal and was sentenced to imprisonment for thirty-three years on each
count, to run concurrently.
4
 A. Desirae Mata
Mata was friends with Sosa and Appellant, whom she had known since she
was fifteen or sixteen years old. Two months after Allen and Doyal were murdered,
Mata went to Alabama, where she was subsequently arrested in Shelby County.
While she was there, she was confined in the Shelby County jail in the same cell
block as Angie Brown. According to Brown, Mata spoke extensively to her about
the murders of Allen and Doyal when Mata would visit Brown in her cell. Because
Brown often wrote letters while she was in her cell, Mata was unaware that Brown
was taking notes as Mata told her details about the murders. As Mata told Brown
about the murders of Allen and Doyal, Mata mentioned the names “Smoke [Juan
Castillo], Bobby [Appellant] and Dan Dan [Sosa].” Brown testified that because
Allen owed Mata’s “baby daddy [Cantu] some money,” Mata and the others went to
Allen’s house to collect the money so that Mata could later deposit the money into
Cantu’s prison account. Mata also told Brown that Doyal “was an innocent
bystander that got shot,” that Allen and Doyal were shot in the head, that Sosa was
the shooter, and that Juan 4 had removed the surveillance equipment from Allen’s
house.
Additionally, Mata told Brown that she and Appellant attempted to break into
Allen’s house two weeks before Allen and Doyal were murdered so that Appellant
could return some guns that they had stolen. Mata expressed concern that the
surveillance footage from Allen’s house would show that she had shut off the power
to the house during the attempted break-in. Brown further testified that Appellant
“ran over some girl” named Abigail while Mata was with him in Hobbs but that
Appellant “beat it because it was accidentally [sic] or something.”

4
Because several individuals involved in this case have the same surname, we will refer to those
individuals by their first name for purposes of clarity.
5
 When Mata testified at Appellant’s trial, she denied involvement in, and
conversing with Brown about, the murders of Allen and Doyal.
B. Juan Castillo
A week after Allen and Doyal were murdered, Juan appeared at David
Delapaz’s house and said that “he had to get something off his chest.” Juan told
Delapaz that he, Mata, Sosa, and Appellant drove to Allen’s house in Juan’s car.
When they arrived, the three men waited on the side of Allen’s house while Mata
knocked on the front door. They all rushed into the house as soon as Allen opened
the front door. Because Allen apparently refused to give them his safe, Sosa began
pistol-whipping Allen until he fell to the ground; Appellant then shot Doyal twice in
the chest. Allen got up and ran from the room; Sosa followed and “gunned him
down” near a hallway in the house. Juan, Mata, Sosa, and Appellant then “moved
the bodies around” and placed a pipe in one of the victim’s hands to “make it look
like it was a drug deal gone bad.”
Detective Porter had known Juan and his brother, Roque Castillo, for several
years prior to the inception of this investigation. Because Roque was in the city jail
in Hobbs at the time, Detective Porter asked Roque for information as to his brother’s
(Juan’s) whereabouts. According to Detective Porter, Roque knew certain critical
details about the murders of Allen and Doyal that his brother Juan had told him;
namely, who drove, which car was used, and who went inside Allen’s house.
Detective Porter ultimately located and arrested Juan on an outstanding Texas arrest
warrant that was unrelated to the Allen and Doyal murders.
Detective Porter later interviewed Juan at the Hobbs Police Department. Juan
stated that he, Sosa, Appellant, and “Dez,” whom he clarified to be someone named
Desirae Reyna,5 went to Allen’s house in a black car. Appellant and Sosa were the

5
Detective Porter testified that he determined that Desirae Reyna was, in fact, incarcerated at the
time of the Allen and Doyal murders.
6
aggressors of the group and the ones who possessed guns. According to Juan,
Appellant shot Doyal at the front door just as Allen opened it, and Sosa shot and
killed Allen in or near one of the bedrooms in the house. The four of them then
attempted to open Allen’s safe, but were unable to do so. Juan claimed that Appellant
staged one of the bodies by leaving a pipe in one of the hands of that victim. He
further claimed that he could lead Detective Porter to the missing surveillance
equipment, some burned clothing, and the guns that were used in the murders;
however, none of these items were located.
Pannell testified about an encounter that she had with Juan that occurred after
Allen and Doyal had been murdered but prior to her interview with Ranger Burney.
Evidently, Pannell had been arrested for outstanding traffic tickets and was in a
transport van that was traveling from the city jail in Hobbs to the Lea County jail.
Juan was also in the van at the time, and he asked Pannell if she remembered him.
When Pannell said that she knew Allen, Juan told her that “it was a good lick.”
Juan testified at Appellant’s trial and denied having any involvement in the
murders. According to Juan, because he was not involved, he never told Delapaz
anything about what had occurred at Allen’s house. Juan further testified that the
confession he provided to Detective Porter during the interview was coerced and that
he was not present at Allen’s house when Allen and Doyal were murdered.
C. Nicomedes Sosa
The State called Sosa as a witness at Appellant’s trial. Sosa testified that he
alone shot and killed Allen and Doyal; that he went to Allen’s house that day with
another individual, whom he refused to name; and that Mata, Appellant, and Juan
were neither present at Allen’s house that day nor involved in the murders.
According to Sosa, after he shot Allen and Doyal, he left the bodies in the house but
returned later to remove the surveillance console from Allen’s house.

7
 D. Appellant
When he was interviewed by Detective Porter, Appellant denied any
involvement in the murders of Allen and Doyal. Appellant also told Detective Porter
that he had been shot on May 2, 2012, and claimed that, at the time the murders were
committed, he was at home on bed rest. Appellant did not testify at trial.
II. Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the evidence to
support his convictions.
A. Standard of Review
We review a challenge to the sufficiency of the evidence 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 essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. 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. We may not reevaluate the weight and credibility of
the evidence to substitute our judgment for that of the factfinder. Dewberry v. State,
8
4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Therefore, if the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326;
Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012); Clayton, 235
S.W.3d at 778.
Further, we treat direct and circumstantial evidence equally under this
standard. Isassi, 330 S.W.3d at 638; Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that the evidence
directly prove 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, 214 S.W.3d at 13). Therefore, in evaluating the
sufficiency of the evidence, we must consider the cumulative force of all the
evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). 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.
Finally, we measure the sufficiency of the evidence by the elements of the
offense as defined by the hypothetically correct jury charge for the case. Morgan v.
State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016); see also Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.”
Malik, 953 S.W.2d at 240.
Appellant contends that the evidence is insufficient to support his convictions
for capital murder because the State failed to prove all of the statutory elements of
9
the charged offenses beyond a reasonable doubt. Specifically, Appellant argues that
the record contains “absolutely no substantive evidence” that he either committed
the murders of Allen and Doyal as the principal actor or that he was criminally
responsible as a party to these murders. We cannot agree.
B. Analysis
As charged in this case, a person commits the offense of capital murder if he
intentionally or knowingly causes the death of an individual in the course of
committing or attempting to commit robbery. PENAL §§ 19.02(b)(1), 19.03(a)(2). A
person commits the offense of robbery if, in the course of unlawfully appropriating
property with the intent to deprive the owner of property, and with the intent to obtain
or maintain control of the property, he intentionally, knowingly, or recklessly causes
bodily injury to another. Id. §§ 29.02(a)(2), 31.03(a)-(b)(1). Under the law of
parties, a person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both. Id. § 7.01(a) (West 2021). A person is criminally
responsible for an offense committed by the conduct of another if, acting with the
intent to promote or to assist in the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a)(2).
At trial, the State adduced sufficient evidence to support the jury’s verdicts
that Appellant committed capital murder as charged in the indictment. The jury
heard testimony from multiple witnesses that Appellant went to Allen’s house with
Mata, Sosa, and Juan and that they, including Appellant, intended to rob Allen
because Mata wanted the money that had been promised to her by Cantu. Juan made
statements to Detective Porter and Delapaz that identified Appellant as one of the
shooters and the person who murdered Doyal. Prior to the murders, Mata and
Appellant had been seen by others at Allen’s house on occasion. Evidence was
10
presented that Cantu and Appellant were members of the “most hated” gang, which
showed the association between Appellant and Cantu and the former’s motive or
intent to participate and assist in the commission of the robbery that led to the
murders of Allen and Doyal. Further, the DNA evidence could not exclude Appellant
as a contributor to the red lighter that was found at Allen’s house.
The jury is authorized to believe all, some, or none of any witness’s testimony.
Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Reyes v. State, 465
S.W.3d 801, 805 (Tex. App.—Eastland 2015, pet. ref’d) (citing Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986)); see Winfrey, 393 S.W.3d at 768; Brooks,
323 S.W.3d at 899. Although Mata and Juan maintained that they were not involved
in the murders of Allen and Doyal, and Sosa testified that he alone committed these
murders, it is the jury’s duty to resolve conflicts in the testimony, to weigh the
evidence, to assess witness credibility, and to draw reasonable inferences from basic
facts to ultimate facts. See Jackson, 443 U.S. at 326; Merritt, 368 S.W.3d at 525–
26; Clayton, 235 S.W.3d at 778. It is not our role or function to engage in or make
credibility determinations. See Jackson, 443 U.S. at 326; Winfrey, 393 S.W.3d at
768; Brooks, 323 S.W.3d 899; Clayton, 235 S.W.3d at 778. As such, when the
evidence in the record supports conflicting inferences, we presume that the jury
resolved any conflicting inferences in favor of the verdicts, and we defer to the jury’s
determinations. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899; Clayton,
235 S.W.3d at 778.
We have reviewed the evidence in the light most favorable to the jury’s
verdicts, and we hold that the record before us contains sufficient evidence from
which a rational jury could have logically inferred and found beyond a reasonable
doubt that Appellant was guilty of both counts of capital murder for the deaths of
Allen and Doyal as charged in the indictment. Therefore, because the jury could
have found the elements of the charged offenses beyond a reasonable doubt, we hold
11
that the evidence is sufficient to support Appellant’s convictions. Accordingly, we
overrule Appellant’s first issue.
III. Accomplice and Jailhouse-Informant Testimony
In his second issue, Appellant asserts that the State failed to meet its statutory
burden for the corroboration of “accomplice-witness” testimony and “jailhouse-
informant” testimony under Articles 38.14 and 38.075, respectively, of the Texas
Code of Criminal Procedure. See CRIM. PROC. art. 38.14 (West 2015), art. 38.075
(West Supp. 2020).
A. Standard of Review
When we conduct a sufficiency review under either the “accomplice-witness”
rule or the “jailhouse-informant” rule, we must eliminate from consideration the
accomplice-witness’s or jailhouse-informant’s testimony and then examine the
remaining portions of the record to determine if there is any evidence that tends to
connect the accused with the commission of the charged offense. Smith v. State, 332
S.W.3d 425, 442 (Tex. Crim. App. 2011); Cook v. State, 858 S.W.2d 467, 470 (Tex.
Crim. App. 1993); Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012,
pet. ref’d).
Here, Appellant specifically argues that neither “accomplice-witness”
testimony nor “jailhouse-informant” testimony can be used to corroborate the other.
However, for the reasons discussed below, we need not address the merits of
Appellant’s argument on appeal.
B. Analysis
Article 38.14 provides that “[a] conviction cannot be had upon the testimony
of an accomplice unless corroborated by other evidence tending to connect the
defendant with the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.” CRIM. PROC. art. 38.14 (emphasis
added). Article 38.075, which governs jailhouse statements or confessions that are
12
made by a defendant to another inmate, similarly provides in relevant part:
A defendant may not be convicted of an offense on the testimony of a
person to whom the defendant made a statement against the defendant’s
interest during a time when the person was imprisoned or confined in
the same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with
the offense committed. In this subsection, “correctional facility” has
the meaning assigned by Section 1.07, Penal Code.
CRIM. PROC. art. 38.075(a) (emphasis added).
In this case, the trial court’s charge contained a general instruction as to the
corroboration requirement for any “accomplice-witness” testimony. The charge also
included an instruction on “jailhouse-informant” corroboration that was specific to
the testimony of Brown.
In their briefs, both Appellant and the State advance their arguments on the
premise that the Article 38.14 “accomplice-witness” at issue is Juan Castillo and that
the Article 38.075 “jailhouse-informant” in this case is Angie Brown. However, the
parties disagree as to whether the testimony of either witness should be allowed to
corroborate the testimony of the other under the statutes cited above. See CRIM.
PROC. arts. 38.14, 38.075. The State maintains that “[n]othing in the plain language
of either [A]rticle 38.075 or 38.14 prohibits accomplice witnesses and jailhouse
informants from corroborating each other.” However, based on the plain and
relevant language of both statutes, it is clear that neither Article 38.14 nor
Article 38.075 is applicable here.
Although Juan is an “accomplice witness” under Article 38.14, the content of
Juan’s trial testimony is not the focus of Appellant’s point on appeal. Rather,
Appellant’s corroboration contention targets statements that were made by Juan and
that were offered at trial by the State through the testimony of Delapaz, Pannell, and
Detective Porter. Indeed, throughout his briefing on this issue, Appellant
consistently refers to Juan’s “statements”—not his testimony—in connection with
13
his asserted application of the “accomplice-witness” rule. Nevertheless, because
Article 38.14 only addresses and applies to “accomplice-witness” testimony, and not
statements, any past statements that were made by Juan and that were elicited
through the testimony of those to whom the statements were made do not fall within
the purview of Article 38.14. See Bingham v. State, 913 S.W.2d 208, 213 (Tex. Crim.
App. 1995).
In connection with the parties’ reliance on the application of the “jailhouse-
informant” rule, such reliance is misplaced. Here, Appellant’s briefing repeatedly
refers to Brown’s “testimony,” which consisted of the statements that Mata, an
accomplice to the murders of Allen and Doyal, had made to Brown when they were
confined together in the Shelby County jail. However, in this case, Brown cannot,
under any scenario, be characterized as a “jailhouse-informant” pursuant to Article
38.075. Here, to have invoked the provisions of Article 38.075, the following events
must have transpired: (1) Appellant and Brown must have been confined together in
the same correctional facility; and (2) Appellant must have made a statement or
statements against his interest directly to Brown during their contemporaneous
confinement in the same correctional facility. See Phillips v. State, 463 S.W.3d 59,
67–68 (Tex. Crim. App. 2015). In this case, neither condition occurred. In fact, the
record before us is devoid of any communications or statements that were made, at
any time, by Appellant to Brown. Furthermore, there is no evidence that Appellant
and Brown were ever contemporaneously confined, at any time, in the same
correctional facility. See CRIM. PROC. art. 38.075(a). Brown testified that past
statements were made to her by Mata while she and Mata were both confined
together in the county jail in Shelby County, Alabama; this is undisputed. See
PENAL § 1.07(a)(14)(A) (“Correctional facility” includes a county jail.). Therefore,
as relevant to Appellant’s case, Mata’s status as an accomplice to the murders of

14
Allen and Doyal does not, and cannot, transform Brown into a “jailhouse-informant”
under Article 38.075.6
Because neither “accomplice-witness” nor “jailhouse-informant” testimony
exists in this instance, neither corroboration provision under the controlling statutes
is applicable. Therefore, we need not decide the question of whether one may
corroborate the other under Articles 38.14 and 38.075. Accordingly, we overrule
Appellant’s second issue on appeal.
IV. Jury Charge
In Appellant’s third and fourth issues, he asserts jury charge error with respect
to “accomplice-witness” and “jailhouse-informant” testimony and the law-of-parties
doctrine.
A. Standard of Review
We review alleged jury charge error by considering: (1) whether error existed
in the charge and (2) if actual error is present, whether sufficient harm resulted from
the error to compel reversal. Phillips v. State, 463 S.W.3d 59, 64–65 (Tex. Crim.
App. 2015); Leza v. State, 351 S.W.3d 344, 355–56 n.45 (Tex. Crim. App. 2011)
(citing Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)); Hardeman v.
State, 556 S.W.3d 916, 923 (Tex. App.—Eastland 2018, pet. ref’d). If no error
occurred, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.
2012). However, if we find error, we conduct a harm analysis. Cortez v. State, 469
S.W.3d 593, 598 (Tex. Crim. App. 2015); Phillips, 463 S.W.3d at 65; Kirsch, 357
S.W.3d at 649. If the error was preserved by a timely objection to the charge, we
will reverse if the error caused some harm to the appellant. Ngo, 175 S.W.3d at 743–
44. Conversely, if the error was not preserved, we will reverse only if the record
demonstrates that the error, if any, caused egregious harm to the appellant. Id.

In Mata’s trial for the murders of Allen and Doyal, Brown was properly designated as a “jailhouse-
6

informant” against Mata. See Mata, 2017 WL 2986845, at *2.
15
 B. Corroboration Instruction
In his third issue, Appellant argues that the trial court erred when it failed to
instruct the jury that neither an “accomplice-witness” nor a “jailhouse-informant”
could corroborate the testimony of the other. Because we have concluded that
neither statute is applicable to the witnesses who testified at Appellant’s trial or to
the circumstances in this case, we hold that the trial court did not err when it refused
to instruct the jury in the manner requested by Appellant. Accordingly, we overrule
Appellant’s third issue on appeal.
C. Law-of-Parties Instruction
In his fourth issue, Appellant argues that the trial court erred when it submitted
a law-of-parties instruction in the charge because the evidence adduced at trial did
not support a jury verdict under that doctrine. We disagree.
If it is supported by the evidence and can legally apply to the offense at issue,
liability as a party is an available legal theory that the State is entitled to have
submitted to the jury in the trial court’s charge. In re State ex rel. Weeks, 391 S.W.3d
117, 124 (Tex. Crim. App. 2013) (citing Marable v. State, 85 S.W.3d 287, 287–88 &
n.3 (Tex. Crim. App. 2002)); see CRIM. PROC. art. 36.14 (West 2007). Further, the
trial court’s submission of a law-of-parties instruction is harmless if the evidence
supports a defendant’s guilt as a principal actor. Ladd v. State, 3 S.W.3d 547, 564–
65 (Tex. Crim. App. 1999); Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App.
1986).
Appellant’s argument that the trial court erred when it submitted a party-
liability instruction essentially reasserts his prior complaints regarding the
sufficiency of the evidence to support his convictions and the corroboration dispute.
Appellant maintains that the only evidence that links or tends to connect him to the
charged offenses consisted of the statements of Juan and Mata and that this evidence
could not support the jury’s finding of his guilt as the principal actor. Here, the
16
record before us does not indicate, and we will never know, whether the jury found
Appellant guilty of the charged offenses as a party or as the principal actor.
Nevertheless, we have already held, consistent with the applicable standard of
review, that the evidence adduced at trial is sufficient to support Appellant’s capital
murder convictions, on both counts, as either the principal actor or as a party to the
offenses. Therefore, we hold that the trial court did not err when it submitted a law-
of-parties instruction to the jury. Accordingly, we overrule Appellant’s fourth issue
on appeal.
V. Excluded Evidence
We next consider two issues raised by Appellant (his fifth and seventh issues)
that relate to the trial court’s exclusion of certain evidence of which Appellant was
the proponent.
A. Standard of Review
We review a trial court’s decision to exclude evidence under an abuse of
discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019);
Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010); Cameron v. State, 241
S.W.3d 15, 19 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1991)); Kelly v. State, 824 S.W.2d 568, 574 & n.14 (Tex. Crim.
App. 1992); Walter v. State, 581 S.W.3d 957, 977 (Tex. App.—Eastland 2019, pet.
ref’d). We will not reverse a trial court’s decision to exclude evidence, and there
is no abuse of discretion, unless that decision lies outside the zone of
reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App.
2018); De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009);
Cameron, 241 S.W.3d at 19; Walter, 581 S.W.3d at 977. Furthermore, we will not
disturb a trial court’s evidentiary ruling, even if the trial court’s reasoning was
flawed, if it is correct on any theory of law that reasonably finds support in the record
and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App.
17
2016); De La Paz, 279 S.W.3d at 344; 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.).
B. Testimony of Dr. Charles Keenan
In his fifth issue, Appellant argues that the trial court erred when it excluded
the testimony of Dr. Charles Keenan, a witness offered by Appellant at trial.
Appellant asserts that this error infringed on his constitutional right to present a
defense. We cannot agree.
Charles Keenan, Ph.D., was retained by Appellant and his trial counsel as an
expert to testify in the field of false or coerced confessions and to evaluate whether
Juan’s confession to Detective Porter was made freely and voluntarily. In assessing
the voluntariness of Juan’s confession, Dr. Keenan reviewed discovery documents
that he had been provided, which included video and audio recordings of the
interviews and transcripts of Juan’s prior testimony from the trials of the other
accomplices who were charged with the murders of Allen and Doyal. In this case,
Appellant represents that Dr. Keenan intended to opine that Juan’s confession to
Detective Porter “was a coerced compliant false confession.”
Under Rule 702 of the Texas Rules of Evidence, an expert witness may testify
“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.
Whether expert testimony will help the jury understand the evidence or determine a
disputed fact and, thus, whether the expert’s testimony is admissible are threshold
determinations to be made by the trial court. Vela v. State, 209 S.W.3d 128, 131
(Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App.
2006); Kelly, 824 S.W.2d at 572. Here, having reviewed Appellant’s proffer, we
cannot say that Dr. Keenan’s proposed testimony concerning the voluntariness of

18
Juan’s confession would have helped the jury to understand the evidence in
Appellant’s trial.
Although Dr. Keenan’s proffered testimony may have been helpful to the
jury if Juan had been the trial defendant in this case, we cannot agree with
Appellant’s assertion that the presentation of “expert” testimony on the
voluntariness of Juan’s confession would have aided the jury in its determination of
Appellant’s guilt. Juan testified that he lied to Detective Porter during the interview,
that he had “slammed” heroin just before he was arrested, and that he only concocted
an elaborate story about what had occurred at Allen’s house so that Detective Porter
would release him. Appellant asserts that Dr. Keenan’s testimony, if admitted,
“would have given the jury a template against which to judge Juan Castillo’s claim”
that he lied to Detective Porter; however, the jury was able to view Juan’s recorded
interview with Detective Porter and observe his demeanor. Moreover, Dr. Keenan’s
proposed testimony, if presented to the jury, would have been tantamount to allowing
him to express a credibility assessment of the statements that Juan made to Detective
Porter, a determination that exceeds the permissible scope of any witness’s
testimony. Here, as in all cases, it is the jury’s province to assess and determine the
credibility of all witnesses.
Appellant further asserts that Juan’s pretrial statements implicated Appellant
and comprised a majority of the evidence that the State presented against Appellant
at trial. As such, if admitted, Dr. Keenan’s testimony would have provided credence
to Juan’s testimony when Juan recanted his confession. However, Detective Porter
was not the only witness to whom Juan had made statements prior to Appellant’s
trial. Delapaz and Pannell testified about the statements that Juan made to them in
connection with his and the others’ involvement in the murders of Allen and Doyal.
The statements that Roque made about his brother’s (Juan’s) involvement in the
murders were presented to the jury. Further, the jury viewed a video recording from
19
the Hobbs Police Department of Roque talking to his mother and saying that “[t]hey
know Juan was there” and that “[Juan] didn’t kill them.” Therefore, we cannot say,
as Appellant suggests, that Dr. Keenan’s proposed “expert” opinion—that the
statements that Juan made to Detective Porter were involuntary—would have
assisted or been helpful to the jury in understanding the evidence.
Because Dr. Keenan’s proposed testimony would not have helped the jury to
either understand the evidence or to determine a fact in dispute, we hold that the trial
court did not abuse its discretion when it excluded Dr. Keenan’s testimony.
Accordingly, we overrule Appellant’s fifth issue on appeal.
C. Interview of Jerry Castillo by Craig Eldon Whitworth
In his seventh issue, Appellant complains that the trial court erred when it
excluded the testimony of a witness, Craig Eldon Whitworth, that Appellant tendered
at trial concerning statements that Jerry Castillo7 made during an interview with
Whitworth.8
Whitworth is a private investigator whom Appellant and his trial counsel
retained. As part of his investigation, Whitworth interviewed Jerry in Santa Fe,
New Mexico, while the latter was incarcerated there in 2017. Whitworth’s
testimony, as proffered by Appellant’s trial counsel, consisted of his interview with
Jerry; the purpose of the proffer was purportedly to show that Jerry had received
information from Sosa that would confirm Sosa’s testimony that Sosa had acted
alone in the murders of Allen and Doyal.
Jerry was called as a witness in Appellant’s trial; however, he asserted his Fifth
Amendment privilege and refused to answer any question that was presented to him

7
The record does not reflect Jerry’s relationship with Juan or Roque.

We note that, although Appellant presents his seventh issue as though a transcript of the interview
8

had been excluded, Appellant never offered the transcript as an exhibit or as evidence at trial. Rather,
Appellant’s substantive complaint is the exclusion of Whitworth’s testimony about Jerry’s statements made
to Whitworth during the interview.
20
by the State. Consequently, the State objected to the offer by Appellant’s trial
counsel to present testimony from Whitworth as to the substance of the statements
that were made to him by Jerry during their interview session. The following
discussion occurred between trial counsel and the trial court:
[PROSECUTOR]: . . . [Jerry] has been in this courtroom, has
been put under oath and he became unavailable because he refused to
answer questions. The State has the right to cross-examine about a
statement.
THE COURT: Again, with regard to asking him if he took a
statement, I don’t have any problem with that. He just can’t tell what
[Jerry] said.

[DEFENSE COUNSEL]: Well, I –

THE COURT: Once he takes the Fifth, that puts the whole thing
–

[DEFENSE COUNSEL]: Well, the State doesn’t have a Sixth
Amendment right to confront and cross-examine witnesses like the
Defense does.

THE COURT: I disagree with that. But –

[DEFENSE COUNSEL]: Okay. So is your -- you are gonna’
make an objection to him testifying?

[DEFENSE COUNSEL]: The objection is that the witness is --

THE COURT: About what the witness says.

[PROSECUTOR]: So therefore, he cannot, that witness cannot
be crossed on any statement that he’s given either to the investigator or
any other because he was brought in this courtroom in this cause and
refused to answer questions.

THE COURT: Doesn’t make any difference.

[PROSECUTOR]: Refused to answer questions.
21
 [DEFENSE COUNSEL]: Okay. Then I’m gonna’ do what the
Court said that they’ll allow. And that is, not going into the specifics of
any conversation.

THE COURT: And you can perfect the bill about that –

[DEFENSE COUNSEL]: Yes. And I’ll do that next.

THE COURT: Okay.

Whitworth’s interview of Jerry was memorialized in a 48-page transcript, which
Appellant submitted as an offer of proof after the trial court sustained the State’s
objection to Appellant’s proffer on the basis that Jerry was “unavailable” for cross-
examination by the State.
Appellant now asserts, for the first time on appeal, that Jerry’s statements to
Whitworth were admissible as statements against interest under Rule 803(24) of the
Texas Rules of Evidence. Regardless of whether we agree with Appellant’s
characterization of these statements, it is undisputed that Appellant did not raise Rule
803(24) to the trial court or rely on this rule’s application as a basis for the
admissibility of these challenged statements. We may not reverse a trial court’s
decision on a legal theory that the complaining party did not present to the trial court
for consideration. Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002)
(noting that, although we may affirm a trial court’s evidentiary ruling on a legal
theory not presented to the trial court, it violates “ordinary notions of procedural
default” to reverse a trial court’s ruling on a theory upon which it did not have an
opportunity to rule) (quoting State v. Mercado, 972 S.W.2d 75, 77–78 (Tex. Crim.
App. 1998)); see also Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App. 2014)
(citing Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008)) (noting that the

22
proponent of the evidence bears the burden to establish its admissibility).
Accordingly, we overrule Appellant’s seventh issue on appeal.
VI. Motion for New Trial
In his sixth issue, Appellant argues that the trial court erred when it denied his
motion for new trial.
We review a trial court’s ruling on a motion for new trial for an abuse of
discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). In his
motion, Appellant asserted that the trial court erred when it excluded the testimony
of Dr. Keenan and Whitworth and that the evidence was insufficient to support the
jury’s verdicts of Appellant’s guilt. We have already addressed each of these
arguments on appeal and have found that no error exists. Therefore, the trial court
did not abuse its discretion when it denied Appellant’s motion for new trial.
Accordingly, we overrule Appellant’s sixth issue on appeal.
VII. Evidence Admitted
Finally, Appellant raises six issues in which he asserts that the trial court erred
when it admitted certain evidence proffered by the State.
A. Standard of Review
We review the trial court’s decision to admit evidence under an abuse of
discretion standard. Rhomer, 569 S.W.3d at 669; Coble, 330 S.W.3d at 272;
Cameron, 241 S.W.3d at 19 (citing Montgomery, 810 S.W.2d at 391); Walter, 581
S.W.3d at 977. This same standard applies when we review a trial court’s decision
to admit or exclude extraneous evidence. De La Paz, 279 S.W.3d at 343.
As with the exclusion of evidence, we will not reverse a trial court’s decision
to admit evidence, and the trial court does not abuse its discretion, unless its decision
lies outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478;
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); McCarty v. State, 257
S.W.3d 238, 239 (Tex. Crim. App. 2008). Moreover, we will not disturb a trial
23
court’s ruling to admit evidence, even if the trial court’s reasoning was flawed, if it
is correct on any theory of law that reasonably finds support in the record and is
applicable to that ruling. Henley, 493 S.W.3d at 93; De La Paz, 279 S.W.3d at 344;
Gonzalez, 195 S.W.3d at 125–26; Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.
App. 2002); Dering, 465 S.W.3d at 670.
B. Analysis – Hearsay
We will first consider three evidentiary issues (Appellant’s eighth, ninth, and
tenth issues on appeal) in which Appellant contends that the trial court erred when it
admitted certain evidence over Appellant’s hearsay objections.
1. Juan Castillo’s Statements
In his eighth issue, Appellant contends that the trial court abused its discretion
when it admitted statements that Juan made to Delapaz and to Pannell. Appellant
argues that the challenged statements are hearsay and do not fall within the hearsay
exception for statements against interest. We disagree.
The general hearsay rule makes inadmissible any out-of-court statement
offered in court to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
Generally, hearsay evidence is not admissible unless it falls within one or more of
the recognized exceptions. See generally TEX. R. EVID. 802, 803. One such
exception is Rule 803(24), which allows for the admissibility of hearsay testimony
when the testimony constitutes a statement against a person’s penal interest. See
TEX. R. EVID. 803(24). Statements against a declarant’s penal interest fall into three
general categories: (1) self-inculpating statements, (2) statements that equally
inculpate the declarant and a third party, and (3) statements that inculpate both the
declarant and a third party but shift blame to another by minimizing the speaker’s
culpability. Walter v. State, 267 S.W.3d 883, 890–91 (Tex. Crim. App. 2008).
The rationale behind Rule 803(24) is based on the common-sense assumption
that “people ordinarily do not say things that are damaging to themselves unless they
24
believe they are true.” Id. at 890 (citing Lilly v. Virginia, 527 U.S. 116, 126–27
(1999)); see TEX. R. EVID. 803(24). Thus, a reasonable person would not normally
claim that he committed a crime, unless it were true. Walter, 267 S.W.3d at 890
(citing United States v. Watson, 525 F.3d 583, 586 (7th Cir. 2008)). Pursuant to
Rule 803(24), a two-step foundation requirement must be satisfied before hearsay
statements against a person’s penal interest may be admitted. Id. (citing Dewberry v.
State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999); Bingham v. State, 987 S.W.2d 54,
57 (Tex. Crim. App. 1999)). First, the trial court must determine whether the
statement, considering all of the circumstances, subjects the declarant to criminal
liability and whether the declarant realized this risk when he made the statement. Id.
at 890–91 (citing Dewberry, 4 S.W.3d at 751). Second, the trial court must
determine whether there are sufficient corroborating circumstances that clearly
indicate that the statement is trustworthy. Id. at 891 (citing Dewberry, 4 S.W.3d at
751; Bingham, 987 S.W.2d at 57).
Here, Juan made self-inculpating statements to both Delapaz and Pannell. See
id. at 890 & n.24 (citing Williamson v. United States, 512 U.S. 594, 603–04 (1994)
(explaining that context informs whether a statement is self-inculpatory or not)); see
also Woods v. State, 152 S.W.3d 105, 112 (Tex. Crim. App. 2004). Juan volunteered
and expressed to Delapaz a narrative of the events that occurred the night that Allen
and Doyal were murdered. He explained that he and three others drove to Allen’s
house and that he saw Appellant shoot Doyal and Sosa shoot Allen. Juan also made
references to Pannell about Allen and stated that the robbery was “a good lick.” See
Williamson, 512 U.S. at 603 (“‘Sam and I went to Joe’s house’ might be against the
declarant’s interest if a reasonable person in the declarant’s shoes would realize that
being linked to Joe and Sam would implicate the declarant in Joe and Sam’s
conspiracy.”). These statements are clearly self-inculpating and subject the

25
declarant, Juan, to criminal liability for the crimes on trial, and the circumstances
further indicate that he was aware of and understood this fact.
Furthermore, we cannot agree with Appellant that Juan’s statements lack
sufficient corroborating circumstances. Crime scene photographs and autopsy
evidence confirmed Juan’s account of how Allen and Doyal were murdered. Brown
testified that Mata, Juan, Sosa, and Appellant went to Allen’s house to retrieve the
money that Mata wanted to collect from Allen and, thus, confirmed that the murders
occurred during the commission of a robbery. Detective Porter testified to the
account of the intended robbery and the murders that was expressed to him by Juan.
Additionally, the testimony of other witnesses, including Sosa’s account of the
murders, confirmed that the surveillance equipment was removed from Allen’s
house. Therefore, we find that the record before us contains sufficient corroborating
circumstances that establish the trustworthiness of Juan’s statements. See, e.g.,
Orona v. State, 341 S.W.3d 452, 465 (Tex. App.—Fort Worth 2011, pet. ref’d) (citing
Walter, 267 S.W.3d at 899) (coconspirator’s statement that he and the appellant beat
the victim exposed both to criminal liability, and the trustworthiness of the statement
was corroborated by other testimony showing the coconspirator and the appellant
had beaten the victim).
Because Juan’s statements comport with the hearsay exception requirements
of Rule 803(24), we hold that the trial court did not abuse its discretion when it
admitted this evidence. Accordingly, we overrule Appellant’s eighth issue on appeal.
2. Rollie Cantu’s Letter & Estella Collum’s Jewelry Appraisal
In his ninth and tenth issues, Appellant asserts that the trial court abused its
discretion when it admitted State’s Exhibit No. 15, a letter written by Cantu to Allen,
and State’s Exhibit No. 14, Estella Collum’s jewelry appraisal.
Although Appellant asserted timely hearsay objections to each exhibit, the
record does not indicate on what basis the trial court admitted either exhibit. We
26
have reviewed the record and we agree with Appellant that Cantu’s letter was
inadmissible hearsay and should have been excluded. We further agree with
Appellant, and the State appears to concede, that Collum’s jewelry appraisal was
also inadmissible hearsay. However, we find that the trial court did not commit
reversible error when it admitted this evidence.
The trial court’s erroneous admission of evidence generally constitutes
nonconstitutional error. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App.
2018); see TEX. R. APP. P. 44.2(b). As such, we must disregard the error unless it
affected Appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). A substantial
right is affected if the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App.
2014). Nevertheless, one’s substantial rights are not affected by the erroneous
admission of evidence if, after examining the record as a whole, we have fair
assurance that the error did not influence the jury or had but a slight effect. Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). When we assess the likelihood
that the error adversely influenced the jury, we consider the entire record, including
(1) the character of the alleged error and how it might be considered in connection
with other evidence, (2) the nature of the evidence supporting the verdict, (3) the
existence and degree of additional evidence indicating the defendant’s guilt, and
(4) whether the State emphasized the complained-of error. Gonzalez, 544 S.W.3d at
373; Motilla, 78 S.W.3d at 355; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000); see Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000).
On both issues, Appellant submits that he was harmed. Appellant asserts that
the State was able to use this evidence—Cantu’s letter and Collum’s jewelry
appraisal—to support “its theory that Allen owed [Cantu] a substantial sum of
money.” Because he was unable to controvert or cross-examine anyone regarding
Collum’s jewelry appraisal, Appellant argues that the State was able “to present
27
unrebuttable evidence regarding a central theory of its case against” Appellant. We
cannot say that either Cantu’s letter or Collum’s jewelry appraisal were central to the
issues in this case.
First, Cantu’s letter to Allen makes no reference to any “deal” between Cantu
and Appellant. The letter, dated February 3, 2012, was sent to Allen from Cantu
while the latter was incarcerated. In the letter, Cantu refers to money that he
expected to receive from Allen, purportedly for the diamonds that Allen had sold in
New York City. However, Cantu’s message in his letter is vague, albeit cordial in
tone; it referenced a “black truck [Cantu] never got” and alluded to something
concerning a “rope chain.” The jury heard phone recordings that contained
statements Mata made to Cantu about money Allen owed Mata from the sale of the
rings, and other testimony, which we have outlined above, that the murders of Allen
and Doyal were incident to the robbery. Therefore, and irrespective of Appellant’s
assertions, we conclude that we have fair assurance from the record as a whole that
the erroneous admission of this evidence did not influence the jury’s decisions in this
case or, if any, its admission had but a slight effect.
Second, the State submits, and we agree, that Collum’s jewelry appraisal did
not bear on “any of the real issues of the case.” The appraised values of the stolen
diamond rings were not relevant to the issues before the jury in Appellant’s trial.
Taber’s mother had her jewelry appraised in 1997 by Harold Brown Jewelry in
Hobbs. The appraised value of these diamonds had no relevance to or bearing on
the events that preceded, and included, the murders of Allen and Doyal. In fact,
Cantu’s letter to Allen established that the amount of money that Allen received
when he sold the diamonds—let alone the diamonds’ appraised values in 1997—was
of no consequence to the debt that Allen owed to Cantu. Therefore, although
Collum’s jewelry appraisal had no bearing on the issues before the jury, we further
conclude that we have fair assurance from the record as a whole that the erroneous
28
admission of this evidence did not influence the jury’s decisions in this case or, if
any, its admission had but a slight effect.
Based on the record before us, we hold that the trial court’s erroneous
admission of Cantu’s letter and Collum’s jewelry appraisal did not affect Appellant’s
substantial rights. Accordingly, we overrule Appellant’s ninth and tenth issues on
appeal.
C. Analysis – Rules 402 and 403
Finally, we consider Appellant’s remaining evidentiary challenges (his
eleventh, twelfth, and thirteenth issues) in which he contends that the trial court erred
when it admitted certain evidence over Appellant’s objections on the grounds of
relevance and unfair prejudice.
1. Brown’s Testimony
In his eleventh issue, Appellant contends that the trial court erred when it
allowed Brown to testify about (1) an occasion whereby Appellant unlawfully
entered Allen’s house with Mata without Allen’s consent and (2) a vehicular accident
in which Appellant struck a child named Abigail. Specifically, Appellant argues that
this evidence was irrelevant and unfairly prejudicial.
All relevant evidence is generally admissible. TEX. R. EVID. 402; see also
Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). Evidence is relevant
if it has any tendency to make a fact of consequence to the determination of the
action more or less probable than it would be without the evidence. TEX. R. EVID.
401. Even “marginally probative” evidence should be admitted if “it has any
tendency at all, even potentially, to make a fact of consequence more or less likely.”
Fuller v. State, 829 S.W.2d 191, 198 (Tex. Crim. App. 1992) (citing TEX. R. EVID.
401), abrogated on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim.
App. 1993).

29
 Rule 403 allows a trial court to exclude relevant evidence if its probative value
is substantially outweighed by a risk of unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.
TEX. R. EVID. 403. Because Rule 403 favors the admission of relevant evidence, it
is presumed that relevant evidence will be “more probative than prejudicial.”
Montgomery, 810 S.W.2d at 389; see TEX. R. EVID. 403; see also De La Paz, 279
S.W.3d at 343. However, Rule 403 also imposes a duty on the trial court to determine
if, on balance, the prejudicial effect of admitting relevant evidence substantially
outweighs the probative value of such evidence. See Casey v. State, 215 S.W.3d 870,
880 (Tex. Crim. App. 2007); Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.
Crim. App. 2006); see also Montgomery, 810 S.W.2d at 389.
The intent of Rule 403 is not to exclude all evidence that tends to prejudice
the opponent’s case. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).
Rather, it only prevents the admission of evidence that promotes a jury’s decision on
an improper basis. Id.; Montgomery, 810 S.W.2d at 389. When performing a
Rule 403 analysis, factors that the trial court must consider include (1) the probative
value of the evidence; (2) the potential for the evidence to impress the jury in some
irrational, yet indelible, way or to suggest a decision on an improper basis; (3) the
amount of time needed by the proponent to develop the evidence; and (4) the
magnitude of the proponent’s need for the evidence. Montgomery, 810 S.W.2d at
389–90; see also Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);
Casey, 215 S.W.3d at 880 (citing Gigliobianco, 210 S.W.3d at 641–42).
The State sought to offer this evidence in connection with its perceived need
to establish the “reliability and corroboration” of Brown’s statements as a “jailhouse-
informant.” See CRIM. PROC. art. 38.075. During a bench conference on this issue,
the State articulated that, “due to the need for corroboration . . . pursuant to the Code
[o]f Criminal Procedure, corroboration and reliability of a statement from a jailhouse
30
inmate, the State at this time would ask to be allowed to go into both of these matters
that show the reliability and corroboration of her statement.” The trial court
overruled Appellant’s Rule 402 and 403 objections to Brown’s testimony regarding
these extraneous matters because it concluded that this evidence was relevant to the
State’s corroboration burden.
However, and as we have previously discussed, the plain and unambiguous
language of Article 38.075 foreclosed Brown’s status as a “jailhouse-informant” in
the trial against Appellant. Therefore, because the State did not bear a corroboration
burden with respect to Brown’s testimony, this specific evidence was not relevant to
any issue that was properly before the jury and should have been excluded.
Therefore, based on our holding on this issue, we need not determine whether this
evidence was unfairly prejudicial. See TEX. R. APP. P. 47.1.
Because the erroneous admission of this evidence constitutes
nonconstitutional error, we must disregard it unless we find that its admission
affected Appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Although these
extraneous matters were not relevant to the State’s case against Appellant, we believe
that we have fair assurance that the erroneous admission of this evidence did not
influence the jury’s verdicts in this case or, if any, its admission had but a slight
effect. As we have said, there is sufficient evidence in the record to support
Appellant’s convictions. Moreover, the State did not emphasize this testimony
during the trial of the case or refer to it during its closing argument. Based on the
volume of testimony and other evidence adduced at trial, Brown’s statements about
these extraneous matters are inconsequential in light of the record as a whole.
Therefore, the trial court’s erroneous admission of this evidence did not affect
Appellant’s substantial rights. Accordingly, we overrule Appellant’s eleventh issue
on appeal.

31
 2. Brown’s Handwritten Notes and Statement to Law Enforcement
In his twelfth issue, Appellant argues that the trial court erred when it admitted
State’s Exhibit No. 69, Brown’s handwritten notes, and State’s Exhibit No. 70,
Brown’s voluntary statement to Ranger Burney.
It is the State’s position on appeal that Appellant failed to interpose a clear and
specific objection to the admission of these exhibits. We disagree. During the bench
conference mentioned above, the State initially directed the trial court’s attention to
State’s Exhibit Nos. 69 and 70 in connection with Brown’s testimony, which we have
discussed in addressing Appellant’s eleventh issue. Appellant’s trial counsel clearly
articulated Rule 402 and 403 objections when the State announced its intention to
offer this evidence, and before the trial court made its ruling as to Brown’s testimony.
Subsequently, when the State offered Exhibit Nos. 69 and 70 into evidence,
Appellant reasserted those objections, which the trial court overruled.
Although the trial court erred when it admitted this evidence, we find that such
error did not affect Appellant’s substantial rights and, therefore, does not require
reversal. See TEX. R. APP. P. 44.2(b). The admission of Brown’s notes and her
statement to Ranger Burney did not enlighten the jury with any new evidence. In
fact, the contents of these exhibits were merely cumulative of other evidence that
had been previously presented to the jury and admitted by the trial court. As the
record before us shows, Brown had previously testified to every statement that was
contained in State’s Exhibit Nos. 69 and 70. As such, we believe that we have fair
assurance that the erroneous admission of this evidence did not influence the jury’s
verdicts in this case or, if any, its admission had but a slight effect. Moreover, the
trial court’s error was cured when the same evidence was offered and admitted
elsewhere during Appellant’s trial. See Valle v. State, 109 S.W.3d 500, 509 (Tex.
Crim. App. 2003); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990);
Nicholls v. State, No. 11-19-00120-CR, 2021 WL 1034047, at *4 (Tex. App.—
32
Eastland March 18, 2021, pet. ref’d). Accordingly, we overrule Appellant’s twelfth
issue on appeal.
3. “[M]ost [H]ated” Gang Evidence
In his final issue, Appellant argues that the trial court erred when it admitted
jail photographs of Appellant’s tattoos and testimony regarding his affiliation with
the “most hated” gang. Specifically, Appellant asserts that the admission of the
tattoo photographs and the testimony that linked him to the “most hated” gang was
unfairly prejudicial. We disagree.
Appellant’s trial counsel objected to the testimony offered by the State
concerning Appellant’s connection to the “most hated” gang on relevance grounds;
the trial court overruled Appellant’s objection but granted Appellant a running
objection as this evidence was presented. Appellant’s trial counsel also objected to
the admission of the photographs of Appellant’s tattoos on the grounds of relevance
and unfair prejudice. See TEX. R. EVID. 402, 403. On appeal, although Appellant
only advances his argument that the admission of this evidence violated Rule 403,
we note that Appellant has cited no cases or other legal authority to support his
assertion that the trial court’s decision to admit this evidence was erroneous.9
Here, the admission of the “most hated” gang evidence was undoubtedly
prejudicial to Appellant. See Hernandez, 390 S.W.3d at 324 (noting that “[a]ll
evidence is prejudicial to one party or the other”). However, to be violative of
Rule 403 the evidence must be unfairly prejudicial. See TEX. R. EVID. 403. “Unfair
prejudice” refers to an undue tendency to suggest the jury’s decision on an improper
basis. Hernandez, 390 S.W.3d at 323–24 (citing Casey, 215 S.W.3d at 879);
Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002); Render v. State, 347

9
We further note that, except for stating the general rules of evidence admissibility, Appellant has
failed to cite to any case or other legal authority to support his arguments on any of the evidentiary points—
issues seven, eight, nine, ten, eleven, twelve, and thirteen—that he has raised under this heading.
33
S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). In this case, the potential
“improper basis” could arguably raise a character conformity inference—the use of
Appellant’s affiliation with the “most hated” gang to show that Appellant was a bad
person and that he acted in conformity with his bad character. See, e.g., Vasquez, 67
S.W.3d at 240.
Irrespective of Appellant’s claim of prejudice, the evidence of Appellant’s
affiliation or membership with the “most hated” gang was also highly probative of
Appellant’s motive or intent to commit the robbery and the murders of Allen and
Doyal. Although generally relevant and admissible only during the punishment
phase of a criminal defendant’s trial, evidence of gang affiliation or membership may
be admissible during the trial’s guilt/innocence phase if it is relevant for a
noncharacter purpose that in turn tends to show the commission of a crime.
Rawlins v. State, 521 S.W.3d 863, 868 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d) (citing Tibbs v. State, 125 S.W.3d 84, 89 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d)). Importantly, evidence of gang affiliation or membership may be
admissible during the guilt/innocence phase to show the defendant’s motive or intent
to commit the charged offense. See id. (citing Smith v. State, 355 S.W.3d 138, 154
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)); see also Vasquez, 67 S.W.3d at
239–40; McCallum v. State, 311 S.W.3d 9, 15 (Tex. App.—San Antonio 2010, no
pet.); Williams v. State, 974 S.W.2d 324, 331 (Tex. App.—San Antonio 1998, pet.
ref’d). Furthermore, gang affiliation or membership may be established by the
display of a defendant’s tattoos or other symbols that are representative of such
affiliation or membership. Barrera v. State, 321 S.W.3d 137, 153 (Tex. App.—San
Antonio 2010, pet. ref’d); Garcia v. State, 239 S.W.3d 862, 866–67 (Tex. App.—
Houston [1st Dist. 2007, pet. ref’d).
Nevertheless, and in light of the record before us, we hold that the trial court
did not abuse its discretion when it concluded that, on balance, the probative value
34
of this evidence—to show Appellant’s motive or intent to commit the robbery and
the murders of Allen and Doyal—was not substantially outweighed by the risk of
unfair prejudice. Accordingly, we overrule Appellant’s thirteenth issue on appeal.
VIII. This Court’s Ruling
We affirm the judgments of the trial court.

W. STACY TROTTER
JUSTICE

July 30, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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