Rey Arevalo v. the State of Texas ( 2023 )

Opinion filed August 31, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00123-CR
__________
REY AREVALO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-22-0014-CR
OPINION
A grand jury indicted Appellant, Rey Arevalo, for the offense of continuous
violence against the family, a third-degree felony. TEX. PENAL CODE ANN.
§ 25.11(a), (e) (West Supp. 2022). After a jury trial, Appellant was convicted of the
charged offense, and the jury assessed his punishment at nine years’ imprisonment
in the Texas Department of Criminal Justice, Institutional Division, and a $5,000
fine. The trial court sentenced him accordingly.
Appellant contends on appeal that the trial court (1) abused its discretion when
it admitted evidence of extraneous offenses or bad acts committed by Appellant;
(2) erred when it refused to include a lesser-included-offense instruction on the
offense of assault-family violence in its charge; (3) erred when it submitted an
“overly broad, non-tailored definition” of “knowingly” in its charge; (4) erred when
it raised the issue of punishment enhancement in the presence of the jury at the
beginning of the punishment phase; and (5) erred when it submitted a parole-law
instruction in its punishment charge pursuant to Article 37.07, Section 4(c) of the
Texas Code of Criminal Procedure that was incomplete. We affirm.
I. Factual Background
Appellant was in a tumultuous dating relationship with the victim, Tina
Torres, for approximately one year. During that time, he lived with Torres and her
three children intermittently, depending on the status of their relationship at any
given time.
The first incident for which Appellant was indicted occurred on May 14, 2021,
when he accosted Torres at the Dollar Tree in Odessa where she worked.
Surveillance video footage shows Appellant entering an “employees only” area in
the back of the store, where he attacked Torres; he struck and pushed her several
times. Torres testified that, during this incident, Appellant told her she was “going
to be his girl and that [she] was never going to be nobody else’s girl.” Torres also
testified that she and Appellant were separated at the time, but that they had resumed
dating again some weeks after this incident. According to Torres, Appellant began
texting her, saying that he wanted to work things out between them. Torres
testified that the text messages scared her, because she was afraid that rebuffing
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Appellant’s advances would result in Appellant committing even more acts of
violence against her.
The second incident for which Appellant was indicted occurred on August 8,
2021. On August 29, police were again called to the Dollar Tree because Torres was
afraid that Appellant had entered the store. Torres reported to Officer Gary Potter
of the Odessa Police Department that she was afraid because Appellant had
vandalized her vehicle the day before. Appellant had appeared at her apartment and
“keyed” her vehicle by scratching the paint on all sides of the vehicle and scratching
the word “cheater” on the hood. Torres then showed Officer Potter a healing scar
on her face and explained that Appellant had thrown her cell phone at her face during
an argument between them a few weeks prior, on August 8, which resulted in a
bloody cut on her cheek. Torres showed Officer Potter pictures of her injury and he
captured images of these pictures with his cell phone by using an evidence collection
photography application.
In a third, unindicted incident that occurred on June 25, 2021, Officer Jere
Strong of the Odessa Police Department was off duty and driving his personal
vehicle when Torres ran into the road in front of his vehicle, causing him to “slam
on” the brakes. Officer Strong then observed that Torres was fleeing from a Hispanic
male. Officer Strong exited his vehicle and spoke with Torres, who stated, “[h]e is
following me and he hit me.” Torres explained that Appellant had taken her keys,
had thrown her cell phone at her face, had driven her vehicle after she exited it to get
away from him, and was now pursuing her on foot. Officer Daniel Chapa of the
Odessa Police Department responded to the scene to investigate the incident;
Appellant initially provided a false name to Officer Chapa. Appellant was
subsequently charged with assault and failure to identify.
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After these incidents, Appellant was indicted for a single count of continuous
violence against the family. Torres testified that, approximately two weeks before
Appellant’s trial commenced, Appellant appeared outside of her residence; he was
accompanied by another woman. Torres testified that Appellant told the woman to
attack Torres. Torres then fled to her friend’s vehicle. Prior to trial, the trial court
revoked Appellant’s bond based on this incident.
II. Standards of Review
A trial court’s decision to admit or exclude evidence is reviewed for an abuse
of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019);
Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). This standard also
applies to a trial court’s decision to admit or exclude extraneous-offense evidence.
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Barron v. State,
630 S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We will not reverse a
trial court’s decision to admit or 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, 279
S.W.3d at 343–44; Barron, 630 S.W.3d at 410. Furthermore, we will uphold a trial
court’s evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct
on any theory of law that finds support in the record and is applicable to the case.
Henley, 493 S.W.3d at 93; Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—
Eastland 2015, no pet.).
Appellate review of alleged charge error is a two-step process. Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d
726, 731 (Tex. Crim. App. 1994)). First, we must determine whether charge error
exists. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch,
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357 S.W.3d at 649). Second, if error does exist, we must then conduct a harm
analysis to determine whether the error resulted in sufficient harm to warrant
reversal. Id.; Phillips v. State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015); Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Ybarra v. State, 621 S.W.3d
371, 384 (Tex. App.—Eastland 2021, pet. ref’d).
Although “the jury is the exclusive judge of the facts,” it is “bound to receive
the law from the court and be governed thereby.” TEX. CODE CRIM. PROC. ANN.
art. 36.13 (West 2007). The purpose of the trial court’s charge is to “inform the jury
of the applicable law and guide them in its application to the case.” Delgado v. State,
235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d
166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a
defendant’s right to have the trial court provide the jury with instructions that
correctly set forth the “law applicable to the case.” Bell v. State, 635 S.W.3d 641,
645 (Tex. Crim. App. 2021) (quoting CRIM. PROC. art. 36.14). Because the trial
court is obligated to correctly instruct the jury on the law applicable to the case, it is
ultimately responsible for the accuracy of its charge and the accompanying
instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing
Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial
court errs, and the error is subject to a harm analysis. See Bell, 635 S.W.3d at 645.
III. Analysis
As relevant to this appeal, a person commits the offense of continuous
violence against the family if, during a period that is twelve months or less in
duration, the person commits two or more assaults that cause bodily injury to another
person who has or had a dating relationship with the defendant. See PENAL
§§ 25.11(a), 22.01(a)(1); TEX. FAM. CODE ANN. § 71.0021(b) (West 2019) (defining
5
“dating relationship”). It is undisputed that Appellant and Torres were in a dating
relationship; that the two assaults allegedly occurred within a twelve-month period
is not an issue on appeal.
A. Extraneous-Offense Evidence
In his first issue, Appellant contends that the trial court abused its discretion
when it admitted evidence of extraneous offenses or bad acts committed by
Appellant—specifically, evidence of the June 25 incident in which he was charged
with assault and failure to identify and Torres’ testimony concerning harassing text
messages that she received from Appellant. We conclude that (1) Appellant has
failed to preserve this issue for our review or he has waived it; and (2) even if
Appellant had preserved this issue, the trial court did not abuse its discretion when
it admitted the complained-of evidence.
1. Preservation and Waiver
To preserve a complaint for appellate review, the complaining party must
present a specific, timely objection or motion to the trial court which states the
specific grounds for the desired ruling. TEX. R. APP. P. 33.1(a)(1)(A); Montelongo v.
State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021); Burg v. State, 592 S.W.3d 444,
448–49 (Tex. Crim. App. 2020); see TEX. R. EVID. 103(a). Further, the complaint
and arguments raised on appeal must comport with and correspond to the objections
made, if any, at trial or they are waived. TEX. R. APP. P. 33.1(a)(1)(A); Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d
423, 431 (Tex. Crim. App. 1991); Dominguez v. State, 474 S.W.3d 688, 699 (Tex.
App.—Eastland 2013, no pet.). As such, an objection asserted at trial on one ground
cannot support a different contention on appeal. Rezac v. State, 782 S.W.2d 869,
6
870 (Tex. Crim. App. 1990); Edwards v. State, 97 S.W.3d 279, 287 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d).
A party’s argument is waived as inadequately briefed if, among other reasons,
the party’s brief neglects to include “a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX. R.
APP. P. 38.1(i); see Ybarra, 621 S.W.3d at 379 n.3.
a. The June 25 Assault and Failure to Identify
The issue concerning the complained-of extraneous-offense evidence first
arose when Appellant filed a motion in limine that sought to limit any reference to
the June 25 incident. After a hearing outside the presence of the jury, the trial court
denied Appellant’s motion. The denial of a motion in limine is not sufficient to
preserve a complaint for appellate review. McDuff v. State, 939 S.W.2d 607, 618
(Tex. Crim. App. 1997). Appellant’s motion did not specifically seek a ruling on
the admissibility of the now complained-of extraneous-offense evidence, nor did
Appellant request such a ruling at the hearing on this motion. See Gardner v. State,
No. 02-20-00018-CR, 2021 WL 4101622, at *3 n.1 (Tex. App.—Fort Worth Sept. 9,
2021, no pet.) (mem. op., not designated for publication) (holding that appellant
preserved the issue for review because he specifically requested and obtained an
express ruling from the trial court on the admissibility of certain evidence during the
hearing on the motion in limine (citing McDuff, 939 S.W.2d at 618)). Therefore,
absent the trial court granting Appellant a specific running objection, Appellant was
required to timely and properly object to the admission of the evidence each time it
was offered at trial in order to preserve his arguments and complaints for appellate
review. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Nicholls v.
7
State, 630 S.W.3d 443, 449 (Tex. App.—Eastland 2021, pet. ref’d) (citing Lane v.
State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)). Appellant failed to do so.
Before Officer Strong testified about the unindicted June 25 incident,
Appellant’s trial counsel objected prematurely to this testimony—on the grounds
that this specific incident was not alleged in the indictment. Outside the jury’s
presence, the trial court explained to Appellant’s trial counsel that “I can’t rule on
something that he hasn’t asked yet. Just -- I know where he is going. But I can’t
rule until there is a question and an objection.” After this colloquy, the State asked
Officer Strong about the details of the June 25 incident; however, Appellant’s trial
counsel did not immediately object to Officer Strong’s testimony. The record shows
that the State asked Officer Strong ten questions regarding the June 25 incident
before Appellant’s trial counsel objected that Appellant had not been provided prior
notice concerning the State’s intention to offer evidence about this extraneous
incident. The trial court overruled Appellant’s objection.
The trial court did not rule on Appellant’s first objection to this evidence, and
Appellant’s second objection was untimely. As Appellant notes in his brief, an
objection is timely if the party makes the complaint as soon as the grounds for the
objection become apparent, that is, as soon as the objecting party knows or should
have known that an error has occurred. See London v. State, 490 S.W.3d 503, 507
(Tex. Crim. App. 2016) (citing Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.
Crim. App. 2006)); Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991);
see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (“[A] party
must make the complaint at the earliest possible opportunity.”). Absent a timely
objection—as soon as the grounds for the objection become apparent—the matter is
waived. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994).
8
Here, Appellant’s trial counsel did not object to the questions that the State
presented to Officer Strong, or to Officer Strong’s answers to these questions, until
after the State had asked and received answers to the questions presented. See
Juarez v. State, 461 S.W.3d 283, 300 (Tex. App.—Texarkana 2015, no pet.) (“If a
party ‘fails to object until after an objectionable question has been asked and
answered, . . . his objection is untimely and error is waived.’” (quoting Grant v.
State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d)). Appellant does
not explain the reasons for failing to make a timely objection. Moreover, although
the grounds for Appellant’s objection were apparent to Appellant’s trial counsel and
the trial court before the State had even asked Officer Strong any questions regarding
the June 25 incident, the trial court correctly refused to rule on Appellant’s premature
objection until an objectionable question about the incident had been asked.
Appellant’s trial counsel did not object to this refusal and did not timely object to
Officer Strong’s testimony that followed, although he was required to do so to
preserve his arguments and complaint for our review. See Wishert v. State, 654
S.W.3d 317, 332 (Tex. App.—Eastland 2022, pet. ref’d) (to preserve error, the
objecting party must object to a trial court’s refusal to rule on an objection (citing
TEX. R. APP. P. 33.1(a)(2)(B))).
Furthermore, testimony regarding the June 25 incident was repeatedly offered
and admitted, without objection, through other witnesses, yet Appellant’s trial
counsel did not object to the admission of this evidence when it was offered. “A
party must object each time the allegedly inadmissible evidence is offered.”
Nicholls, 630 S.W.3d at 449 (citing Lane, 151 S.W.3d at 193). Any purported error
in the admission of complained-of evidence is cured when the same or
similar evidence is offered and admitted without objection elsewhere during
9
Appellant’s trial. Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990);
Ruiz v. State, 631 S.W.3d 841, 864 (Tex. App.—Eastland 2021, pet. ref’d); Nicholls,
630 S.W.3d at 449 (citing Valle, 109 S.W.3d at 509).
Specifically, in addition to Officer Strong’s testimony, Officer Chapa testified
about the June 25 incident, including Appellant’s failure to identify and the details
of Appellant’s assault upon Torres; the State also offered audio and video footage
from Officer Chapa’s body camera. Appellant’s trial counsel did not object to
Officer Chapa’s testimony and stated he had no objection to the admission of the
body camera footage. Torres also testified extensively about the June 25 incident
without objection. Thus, even if the extraneous-offense evidence was erroneously
admitted over a timely and proper objection, and we do not hold that it was, any
error was cured by the admission, without objection, of the same or similar evidence
during several other parts of the trial. See Johnson, 803 S.W.2d at 291; Ruiz, 631
S.W.3d at 864; Nicholls, 630 S.W.3d at 449.
Finally, even if Appellant had preserved his complaint for our review, his
complaint on appeal that he was harmed has been waived due to inadequate briefing.
See TEX. R. APP. R. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App.
2000); Ybarra, 621 S.W.3d at 379 n.3. Although Appellant thoroughly addresses
the trial court’s decisions to admit the complained-of evidence, he presents no
argument, discussion, analysis, or authoritative citations to support his contention on
appeal that the trial court’s purported error caused him harm. Therefore, irrespective
of having raised the issue, the omission of any substantive analysis of the harm that
Appellant allegedly suffered renders the issue of harm waived. See Cardenas, 30
S.W.3d at 393 (the failure to brief whether alleged error caused harm waived the
issue on appeal); Chaves v. State, 630 S.W.3d 541, 557 (Tex. App.—Houston
10
[1st Dist.] 2021, no pet.) (same) (citing Wilson v. State, 473 S.W.3d 889, 900–01
(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)); Keller v. State, 604 S.W.3d 214,
229–30 (Tex. App.—Dallas 2020, pet. ref’d); see also Hall v. State, No. 10-12-
00020-CR, 2014 WL 1516881, at *6 (Tex. App.—Waco Apr. 17, 2014, no pet.)
(mem. op., not designated for publication); Delijevic v. State, 323 S.W.3d 606, 609
(Tex. App.—Amarillo 2010, no pet.).
Appellant did not timely object to the complained-of evidence, nor does he
explain his failure to do so. The same or similar evidence also was offered and
admitted, without objection, through other witnesses. Further, Appellant has failed
to adequately brief how the alleged error harmed him. Therefore, Appellant’s
claimed trial court error, if any, is waived.
b. Harassing Text Messages
Appellant also attempted to object to Torres’ testimony about the text
messages that she received from Appellant. The State asked Torres if, after the first
assault on May 14, Appellant had approached her again. Torres replied that he had.
She stated that Appellant “started in-boxing [sic] [her], texting [her]. Telling [her]
how much he missed [her]. How much he wanted to be back with [her] and see if
[they] could work things out.” The State then asked Torres if Appellant’s text
messages were threatening. She replied that they were not. At this juncture, the
following exchange occurred between Appellant’s trial counsel and the trial court:
[DEFENSE COUNSEL]: Objection, Judge. She is talking about
--
THE COURT: Talking about what your client said? That is not
hearsay.
[DEFENSE COUNSEL]: The text messages that - -
THE COURT: Who made the text messages?
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THE WITNESS: He did.
THE COURT: The objection is overruled.
The record demonstrates that, before Appellant’s trial counsel stated a ground
for the objection, the trial court interrupted and overruled the objection. Appellant’s
trial counsel did not object to the trial court’s interruption or clarify that the basis of
the objection that he intended to make was not hearsay. In fact, Appellant concedes
that it is unclear on what grounds trial counsel’s objection would have been made.
Yet, he now suggests in his brief that his objection could have been made on a ground
other than hearsay—such as lack of notice of extraneous offenses, “improper
predicate,” or Rule 403. But Appellant’s trial counsel did not articulate any of these
other grounds to the trial court.
The burden is on the complaining party to conform its objection to the rules
that govern the preservation of issues. See Ford v. State, 305 S.W.3d 530, 533 (Tex.
Crim. App. 2009). The grounds for an objection must be sufficiently specific 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); see Gains v. State, 966 S.W.2d 838,
840–41 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that although
the trial court interrupted appellant’s trial counsel before he could state the grounds
for his objection, error was preserved because the grounds were apparent from the
context); Bowers v. State, No. 02-02-00250-CR, 2003 WL 22026428, at *7 (Tex.
App.—Fort Worth Aug. 29, 2003, pet. ref’d)1 (holding that although appellant’s trial
counsel was prevented from stating the grounds for his objection by the State’s
interruption and the trial court’s subsequent instruction to the State to continue,
1
Bowers carries a “publish” designation but apparently was never published. Cf. TEX. R. APP. P.
47.2(a), (b).
12
appellant’s objection was not waived because the grounds were apparent from the
context). Further, and as we have said, an objection asserted at trial on one ground
cannot support a different contention on appeal. See Edmondson v. State, 399
S.W.3d 607, 611 (Tex. App.—Eastland 2013, no pet.) (citing Rezac, 782 S.W.2d at
870).
After the trial court interjected and overruled his attempted objection,
Appellant’s trial counsel did not object to the interruption or assert that his objection
was based on grounds other than hearsay. Moreover, Appellant concedes on appeal
that it is unclear on what grounds his objection could or would have been based. See
Gains, 966 S.W.2d at 840–41; Bowers, 2003 WL 22026428, at *7. On appeal,
Appellant does not assert that the trial court improperly admitted hearsay evidence—
the only ground on which the trial court ruled—rather, he argues that the text
messages evidence was improperly admitted as extraneous-offense evidence. We
conclude, as we did above, that Appellant failed to preserve his complaint for our
review. See TEX. R. APP. P. 33.1(a)(1)(A); Edmondson, 399 S.W.3d at 611.
2. Admissibility
Even if Appellant had preserved and adequately presented the arguments in
his first issue, we conclude that the trial court did not abuse its discretion when it
admitted the complained-of extraneous-offense evidence. Although evidence of
extraneous offenses or bad acts is generally inadmissible to show character
conformity, such evidence is admissible for a multitude of other reasons, such as to
show a defendant’s culpable mental state, the absence of mistake or accident, or to
illustrate the nature of the relationship between a defendant and the victim. See
TEX. R. EVID. 404(b); CRIM. PROC. art. 38.371(b), (c) (West Supp. 2022);
Gutierrez v. State, 630 S.W.3d 270, 283 (Tex. App.—Eastland 2020, pet. ref’d)
13
(Rule 404(b) exceptions are “neither mutually exclusive nor collectively exhaustive
. . . [and] ‘Rule 404(b) is a rule of inclusion rather than exclusion.’”); Fernandez v.
State, 597 S.W.3d 546, 565–66 (Tex. App.—El Paso 2020, pet. ref’d) (“Areas of
relevant and admissible extraneous-offense evidence that complies with article 38.371
include evidence that . . . contextualizes the nature of the relationship between victim
and assailant.”).
a. Evidence from the June 25 Incident
At the hearing on Appellant’s motion in limine, the State asserted that the
complained-of evidence would be offered to show Appellant’s culpable state of
mind, his absence of mistake, or his lack of accident in assaulting Torres based on
the instances alleged in the indictment, and to contextualize the nature of the
relationship between Appellant and Torres. Appellant argues that, at trial, the State
presented the extraneous-offense evidence as direct, substantive evidence of
Appellant’s guilt, which is an improper purpose for this type of evidence.
Appellant contends that, although his failure to identify in the June 25 incident
may illustrate a culpable mental state as to that specific incident, this does not
indicate consciousness of guilt as to the charged offense. We need not address the
merits of this assertion because Appellant offers no response to the other Rule 404(b)
bases to admit this evidence—intent, knowledge, absence of mistake, or lack of
accident—advanced by the State. Although not alleged in the indictment, the
June 25 incident was an instance of how Appellant assaulted Torres. In addition to
the two incidents of assault that were alleged in the indictment, the June 25 incident
occurred during the “family violence period” alleged in the indictment.
During the June 25 assault—the second in a string of assaults committed by
Appellant against Torres—Appellant gave a false name when confronted by law
14
enforcement. Absence of mistake or lack of accident are two bases under which the
trial court could have admitted the evidence of both Appellant’s assaultive conduct
against Torres and his failure-to-identify offense. See TEX. R. EVID. 404(b).
Moreover, Appellant concedes, and we agree, that the evidence concerning the
June 25 incident was admissible under Article 38.371 to illustrate the nature of the
relationship between the victim (Torres) and the assailant (Appellant) in this case.
See CRIM. PROC. art. 38.371(b); Fernandez, 597 S.W.3d at 565.
Because a harm analysis under these circumstances would necessarily fall into
the arena of “hypotheticals”—as we have said, Appellant neglected to adequately
brief the issue of harm with respect to the evidence stemming from the June 25
incident—we will refrain from doing so here. However, we reiterate that the
improper admission of evidence is not reversible error if the same or similar evidence
is admitted without objection elsewhere during the trial. Johnson, 803 S.W.2d at
291; Ruiz, 631 S.W.3d at 864; Nicholls, 630 S.W.3d at 449. Here, the evidence
about the June 25 incident was admitted repeatedly throughout the trial via multiple
witnesses’ testimony, without objection, and as such cannot constitute reversible
error.
b. Harassing Text Messages
Regarding Torres’ testimony about the complained-of text messages, we first
note that the text messages themselves were not admitted. Torres only briefly
mentioned the text messages—she described that she felt Appellant cornered her in
the relationship by constantly texting her to get back together with him, and that the
general tenor of the messages was not threatening. After the trial court overruled
Appellant’s objection, only four more questions were asked of Torres that stemmed
15
from her indication and description that Appellant had constantly texted her in this
manner:
[THE STATE]: Did the text messages themselves scare you?
[TORRES]: Yes.
[THE STATE]: How come?
[TORRES]: Because I was scared that if I would have said no,
he would have just kept on and kept going, which he would have kept
on going.
[THE STATE]: Kept on going as far as what?
[TORRES]: As far as to where it lead [sic] to now, where I have
a scar on my face.
[THE STATE]: Were you afraid of him the whole time you guys
were dating, or just the latter part?
[TORRES]: No. I was scared of him the whole relationship.
Appellant concedes that “maybe” the text messages would have been
admissible under Article 38.371 to illustrate the nature of the relationship between
Appellant and Torres because the State used them to demonstrate the power-and-
control dynamic that Appellant exercised over her. But Appellant argues that,
whether admissible under Article 38.371 or not, Torres’ testimony about the text
messages should have been subject to a Rule 403 analysis, which the trial court did
not conduct.
While a trial court’s Rule 403 balancing analysis need not be on the record,
given Appellant’s nonspecific objection to Torres’ testimony regarding the text
messages, we cannot assume here that the trial court conducted a Rule 403 balancing
analysis. See Roe v. State, 660 S.W.3d 775, 784 (Tex. App.—Eastland 2023, pet.
16
ref’d) (when overruling a Rule 403 objection, the trial court is assumed to have
conducted the Rule 403 balancing analysis and determined that the evidence was
admissible); Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet.
ref’d) (same). However, we conclude that the trial court would not have abused its
discretion if it had performed a Rule 403 balancing analysis and in turn admitted this
evidence over a Rule 403 objection. Assuming further that the trial court should
have conducted a Rule 403 analysis, we nevertheless conclude that any error in the
admission of Torres’ testimony about the text messages was harmless.
“The trial court’s erroneous admission of evidence does not result in
constitutional error; therefore, it will be disregarded if the error did not affect the
defendant’s substantial rights.” Wishert, 654 S.W.3d at 332 (citing TEX. R.
APP. P. 44.2(b)). A substantial right is implicated when the trial court’s error had a
substantial or injurious effect or influence in the jury’s determination of its verdict.
Id. (citing Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014)). In assessing
the likelihood that the jury’s decision was adversely affected by the claimed error,
we must consider (1) the entire record, including all the evidence presented at trial;
(2) the nature of the evidence supporting the jury’s verdict; (3) the character of the
alleged error and how it might be considered along with the other evidence in the
case; (4) the trial court’s instructions to the jury; and (5) whether the evidence of the
defendant’s guilt is overwhelming. Id. (citing Motilla v. State, 78 S.W.3d 352, 355–
58 (Tex. Crim. App. 2002)). In making this determination, we are not concerned
with whether there was sufficient evidence on which the defendant could have been
convicted, but rather whether there is a reasonable possibility that the erroneously
admitted evidence might have contributed to the defendant’s conviction. Id. (citing
Lopez v. State, 288 S.W.3d 148, 178 (Tex. App.—Corpus Christi–Edinburg 2009,
17
pet. ref’d)). “Therefore, reversal is not required if, after reviewing the entire record,
we have fair assurance that the error did not influence the jury’s verdict or had only
a slight effect.” Id. at 332–33.
“At the outset, our harm analysis requires that we first determine if the danger
of unfair prejudice substantially outweighed the probative value of the challenged
evidence, and then, if it did, whether the admission of the extraneous evidence
affected the defendant’s substantial rights.” Id. at 333 (citing Colvin v. State, 54
S.W.3d 82, 85 (Tex. App.—Texarkana 2001, no pet.)); see TEX. R. EVID. 403.
“Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence [is] more probative than prejudicial.” Walter v. State, 581
S.W.3d 957, 978 (Tex. App.—Eastland 2019, pet. ref’d) (quoting Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002)). An analysis under Rule 403 includes,
but is not limited to, the following factors: (1) the probative force of the evidence
along with (2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest a decision on an improper basis, (4) any tendency of the evidence
to confuse or distract the jury from the main issues, (5) any tendency of the evidence
to be given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence that
has already been admitted. Garcia v. State, 630 S.W.3d 264, 268 (Tex. App.—
Eastland 2020, no pet.) (citing Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.
Crim. App. 2006)); see TEX. R. EVID. 403; Wishert, 654 S.W.3d at 333.
Appellant concedes that Torres’ testimony is probative and did not consume
an inordinate amount of time to present. The jury was not likely to give this
testimony undue weight—it was hardly referred to during trial, and the State relied
18
on and advanced other extensive evidence of Appellant’s guilt in its closing
arguments. Contrary to Appellant’s assertions, it is reasonable to conclude that this
evidence was neither confusing to the jury nor suggestive of an improper decision-
making basis because it was clearly related to the nature of Torres’ relationship with
Appellant. This evidence also provided a different perspective for the jury to
consider regarding Torres’ relationship with Appellant and it was not repetitive of
other admitted evidence.
Appellant argues that, because the referenced messages were not themselves
admitted and because he had no prior notice of the State’s intention to use these
messages from which he could have prepared a defense, the jury was not properly
equipped to evaluate its probative force. But the evidence at issue is not the text
messages themselves; rather, it is Torres’ testimony that even though the text
messages were not threatening, the constant and harassing nature of the texts
illustrated her fear of Appellant during their intermittent dating relationship. As
such, the jury was equipped to evaluate the probative force of Torres’ testimony
regarding the relationship that she had with Appellant. Weighing all of the above
factors, we conclude that the trial court would not have abused its discretion if it had
performed a Rule 403 balancing analysis and in turn admitted this evidence over a
Rule 403 objection. See Wishert, 654 S.W.3d at 334.
As an additional consideration, we note that the trial court instructed the jury
in the guilt-innocence charge that the jury was not to consider extraneous-offense
evidence for any improper purpose. Absent evidence to the contrary, and here there
is none, we presume that a jury follows the trial court’s instructions regarding the
consideration of admitted evidence, which mitigates any potential harm to
19
Appellant. Id. (citing Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.
2009)); Barron, 630 S.W.3d at 412–13.
For all of the foregoing reasons, we overrule Appellant’s first issue.
B. Lesser-Included Offense Instruction
In his second issue, Appellant asserts that the trial court erred when it refused
to include a lesser-included offense instruction on the offense of assault-family
violence in its charge.
Appellant concedes that he did not object to the charge or to the omission of
this instruction. Nor did he request that a lesser-included instruction on assault-
family violence be submitted in the charge. Still, he contends that under Almanza,
he may raise this issue for the first time on appeal if egregious harm can be shown.
See Ngo, 175 S.W.3d at 743; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984) (op. on reh’g). We disagree.
“[T]he defense may not claim error successfully on appeal due to the omission
of a lesser included offense if the defense refrained from requesting one.” Delgado,
235 S.W.3d at 250 (quoting 43 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL
PRACTICE AND PROCEDURE § 36.50 at 202 (Supp. 2006)). And before an egregious
harm analysis under Almanza applies to charge “error,” we must determine that error
exists in the first place. See Tolbert v. State, 306 S.W.3d 776, 781–82 (Tex. Crim.
App. 2010) (citing Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998));
Ybarra, 621 S.W.3d at 384 (citing Phillips, 463 S.W.3d at 64).
Here, not only did Appellant waive any complaint on appeal by failing to
object to the charge, no error occurred, as Appellant suggests, because the trial court
had no duty to sua sponte instruct the jury on a lesser-included offense. See Tolbert,
306 S.W.3d at 780–81; Delgado, 235 S.W.3d at 249–50. The trial court has a
20
statutory duty to submit a charge that sets forth the law applicable to the case. See
CRIM. PROC. art. 36.14; Posey, 966 S.W.2d at 62. However, defensive issues are not
law “applicable to the case” unless the defendant either timely requests the
submission of the issue in the charge or objects to its omission. Tolbert, 306 S.W.3d
at 779–80 (citing Posey, 966 S.W.2d at 62). As the Court of Criminal Appeals has
explained, “lesser-included instructions are like defensive issues and . . . a trial court
is not statutorily required to sua sponte instruct the jury on lesser-included offenses
because these issues ‘frequently depend upon trial strategy and tactics.’” Id. at 780
(quoting Delgado, 235 S.W.3d at 249–50).
Absent a request by Appellant to include in the charge an instruction on the
lesser-included offense of assault-family violence, such an instruction would not
constitute law “applicable to the case,” and the trial court had no sua sponte or
statutory duty to submit it. Tolbert, 306 S.W.3d at 779–81. In this case, Appellant
neither requested that a lesser-included instruction be included in the trial court’s
charge, nor did he object to its omission.
For these reasons, we overrule Appellant’s second issue.
C. Overbroad Definition of “Knowingly”
In his third issue, Appellant contends that the trial court erred when it included
an overbroad, non-tailored definition of the culpable mental state of “knowingly” in
its charge. Specifically, Appellant argues that the trial court erroneously instructed
the jury on all three conduct elements, when instead it should have defined
“knowingly” to only include two of the conduct elements—“result of conduct” and
“circumstances surrounding the conduct.” Accordingly, Appellant reasons, the trial
court erred when it instructed the jury that, to convict Appellant, the required
21
culpable mental state applied to, and improperly included, the other conduct
element—“nature of his conduct.”
We agree with Appellant that the submitted definition of “knowingly” is
overbroad. But we conclude that the complained-of error did not egregiously harm
Appellant. See, e.g., Costilla v. State, 650 S.W.3d 201, 222 (Tex. App.—Houston
[1st Dist.] 2021, no pet.) (holding that the trial court’s erroneous definition of
“intentionally” and “knowingly” in its charge in a prosecution for continuous
violence against the family did not harm appellant); see also Rice v. State, No. 11-
22-00032-CR, 2023 WL 5109158, at *3–6 (Tex. App.—Eastland Aug. 10, 2023, no
pet. h.) (mem. op., not designated for publication) (holding that the trial court’s
overbroad definition of “recklessly” in its charge, in a prosecution where appellant
was convicted of the lesser-included offense of manslaughter, that included
improper conduct elements did not egregiously harm appellant); Estorga v. State,
No. 11-21-00134-CR, 2023 WL 1826816, at * 3–6 (Tex. App.—Eastland Feb. 9,
2023, no pet.) (mem. op., not designated for publication) (the inclusion of “nature of
conduct” language in the definitions of “intentionally” and “knowingly” when
appellant was charged with a “result of conduct” offense did not egregiously harm
appellant).
The Penal Code prescribes four culpable mental states—intentionally,
knowingly, recklessly, and criminally negligent—and three possible conduct
elements—nature of the conduct, result of the conduct, and circumstances
surrounding the conduct. PENAL § 6.03 (West 2021); see Young v. State, 341 S.W.3d
417, 423 (Tex. Crim. App. 2011). When unspecified conduct is criminalized
because of its result, the culpable mental state must be applied to that result. Price v.
State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). An offense may contain any
22
one or more of these conduct elements that alone or in combination form the overall
behavior that the legislature intended to criminalize, and it is these essential conduct
elements to which a culpable mental state must apply. McQueen v. State, 781
S.W.2d 600, 603 (Tex. Crim. App. 1989). A trial court errs if it fails to limit in its
charge the language of the applicable culpable mental state to the appropriate
conduct element. Price, 457 S.W.3d at 441; Cook v. State, 884 S.W.2d 485, 491
(Tex. Crim. App. 1994).
Appellant asserts that the statutory language of Section 25.11 provides that
the offense of continuous violence against the family consists of a “result of conduct”
element and a “circumstances surrounding the conduct” element because it requires
that a person must cause bodily injury to be inflicted upon a person who fits within
the statutory definition of “family.” Contrary to Appellant’s assertion, the offense
of continuous violence against the family is a result-of-conduct offense only. 2 See
Price, 457 S.W.3d at 442–43; Rubis, 666 S.W.3d at 839–40 (“[T]he actus reus of
[continuous violence against the family] is the commission of an offense that, by its
own terms, is a ‘result of conduct’ offense, and the jury should be instructed
accordingly.”).
In this case, the abstract portion of the trial court’s charge defined
“knowingly” to include all three conduct elements:
2
When determining which conduct element should be included in the culpable mental state
instruction, we look to the gravamen of the offense. Rubis v. State, 666 S.W.3d 837, 839 (Tex. App.—
Dallas 2023, no pet.) (citing Price, 457 S.W.3d at 441). Continuous violence against the family is defined
as the repeated commission of a constituent offense against a certain class of persons as defined by statute.
Id. “The constituent offense—assault causing bodily injury—does not prohibit specific conduct, but instead
criminalizes the result of the defendant’s actions.” Id. Neither continuous violence against the family nor
its constituent offense can occur without the victim sustaining bodily injury as a result of the defendant’s
conduct. Because the gravamen of continuous violence against the family is the repeated injury to the
victim that results from the defendant’s unspecified conduct, the culpable mental states apply to the
defendant’s conduct, rather than to its nature. Id. at 839–40.
23
A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.
(Emphasis added). We conclude that the trial court erred when it submitted the
definition of “knowingly” in this form because the charged offense is only a result-
of-conduct offense; the trial court was required to limit the culpable mental states to
the result of Appellant’s conduct. See Price, 457 S.W.3d at 441 (citing Cook, 884
S.W.2d at 491).
As noted, Appellant did not make a timely and proper objection to the charge
error that he now complains about on appeal; therefore, reversal is only required if
the error resulted in egregious harm.3 Villareal v. State, 453 S.W.3d 429, 433 (Tex.
Crim. App. 2015). “Charge error is egregiously harmful if it affects the very basis
of the case, deprives the defendant of a valuable right, or vitally affects a defensive
theory.” Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a
determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State,
420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “An egregious harm determination
must be based on a finding of actual rather than theoretical harm.” Arrington v.
State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353
S.W.3d 766, 777 (Tex. Crim. App. 2011)).
Egregious harm is only shown when the error “created such harm that [the
appellant] ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at 171; see
3
We note that Appellant’s briefing of the alleged harm caused by this charge error is inadequate, in
a similar manner to that of his first issue. TEX. R. APP. P. 38.1(i). But because we have found that charge
error exists, we will analyze what harm, if any, that error may have caused Appellant.
24
also Villareal, 453 S.W.3d at 433 (reversal is only required if the error was so
egregious and created such harm that the defendant was deprived of a fair and
impartial trial). To determine if the complained-of charge error egregiously harmed
Appellant, the Court of Criminal Appeals in Almanza identified four factors that we
should weigh and consider: (1) the charge as a whole; (2) the state of the evidence,
including the contested issues and the weight of the probative evidence; (3) the
arguments of counsel; and (4) all other relevant information in the record that may
inform our analysis. Cosio, 353 S.W.3d at 777 (citing Hutch, 922 S.W.2d at 171);
Almanza, 686 S.W.2d at 171. These factors guide our analysis.
1. The Charge as a Whole
The first Almanza factor requires that we review the trial court’s charge in its
entirety. “Where the application paragraph correctly instructs the jury, an error in
the abstract instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex.
Crim. App. 1999); see Kuhn v. State, 393 S.W.3d 519, 529 (Tex. App.—Austin
2013, pet. ref’d). In the application paragraph of its charge, the trial court provided
the following instruction:
Now if you find from the evidence beyond a reasonable doubt that on
or about the 14th day of May, 2021, in Ector County, Texas, the
Defendant, REY AREVALO, hereinafter styled the Defendant, did
then and there intentionally, knowingly, and recklessly cause bodily
injury to Tina Torres, a person with whom the defendant has or has had
a dating relationship, as described in Section 71.0021(b) of the Texas
Family Code, by striking her on or about the head with his hand, and
on or about the 8th day of August, 2021, the defendant intentionally,
knowingly, and recklessly caused bodily injury to Tina Torres, a person
with whom the defendant has or has had a dating relationship, as
described by Section 71.0021(b) of the Texas Family Code, by striking
her on or about the face with a cell phone, and the conduct by the
defendant occurred during a period that was 12 months or less in
25
duration, then you will find the defendant guilty of the offense of
continuous violence against the family as charged in the Indictment.
Because the application paragraph of the charge tracks the statutory language
for the charged offense and properly instructs the jury to apply the applicable
culpable mental states to the result of Appellant’s conduct, we conclude that the
charge when read in its entirety and in proper context does not weigh in favor of
finding that Appellant suffered egregious harm. See Medina, 7 S.W.3d at 640; Kuhn,
393 S.W.3d at 529; see also PENAL §§ 25.11(a), 22.01(a)(1).
2. The State of the Evidence
The second Almanza factor focuses on the evidence presented at trial.
Appellant did not testify. His defensive strategy—as revealed by his trial counsel’s
cross-examinations of the State’s witnesses—was that Torres was not truthful about
Appellant assaulting her and that Torres was the first aggressor in many of the
altercations that occurred between them. Notably, Appellant’s defensive strategy
did not include that he did not act with the requisite culpable mental states in these
altercations. Therefore, because the charge error did not relate to a contested issue
at trial, we conclude that this factor does not weigh in favor of finding that Appellant
suffered egregious harm. See, e.g., Green v. State, No. 11-21-00097-CR, 2023
WL 1825168, at *7 (Tex. App.—Eastland Feb. 9, 2023, no pet.) (mem. op., not
designated for publication) (holding that the second Almanza factor weighed against
a finding of egregious harm when the charge error did not relate to appellant’s trial
strategy).
3. The Arguments of Trial Counsel
The third Almanza factor pertains to the arguments of trial counsel. In
weighing this factor, we must determine whether any statements made by the State,
26
Appellant’s trial counsel, or the trial court exacerbated or ameliorated the
complained-of charge error. Arrington, 451 S.W.3d at 844.
Both parties focused on Torres’ credibility regarding the assaults that
Appellant committed against her and her relationship with Appellant. The State
explicitly oriented its closing arguments on witness credibility and stated that the
main issue for the jury to consider was “do you believe Tina Torres?” Similarly,
Appellant’s trial counsel emphasized the jury’s responsibility “to decide what kind
of makes sense and what doesn’t make sense” in light of “conflicting statements
from the complaining witnesses.” Neither party’s closing arguments exacerbated
the charge error. Therefore, we conclude that this factor also does not weigh in favor
of finding that Appellant suffered egregious harm.
4. Other Relevant Information in the Record
Finally, the fourth Almanza “catch-all” factor requires that we consider any
other relevant information in the record that would assist in our determination of
whether Appellant suffered egregious harm as a result of the complained-of charge
error. Gelinas v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013); Almanza, 686
S.W.2d at 171.
The record shows that the jury never inquired of or submitted any note or other
form of communication to the trial court regarding the complained-of definition. See
Lopez v. State, 314 S.W.3d 70, 73 (Tex. App.—Waco 2010, no pet.); Shaver v. State,
985 S.W.2d 284, 292 (Tex. App.—Beaumont 1999, pet. ref’d). Therefore, it is
unlikely that the jury was influenced or confused by the trial court’s instructions.
The jury returned its verdict of guilty after deliberating for less than twenty minutes,
which suggests that they found the State’s evidence to be compelling and
Appellant’s defenses to be unpersuasive. Further, Appellant does not point to, nor
27
have we found, other information in the record that would either assist in our analysis
or support a finding of egregious harm. Because there is no other relevant
information in the record before us that shows or suggests confusion or that the jury’s
verdict was influenced or affected by the complained-of instruction, we conclude
that the fourth Almanza factor does not weigh in favor of finding that Appellant
suffered egregious harm.
Based on this record, we conclude that Appellant did not suffer egregious
harm resulting from the overbroad and non-tailored definition of the culpable mental
states in the abstract portion of the trial court’s charge. See Costilla, 650 S.W.3d at
222. Accordingly, we overrule Appellant’s third issue.
D. Discussion of Punishment Enhancement in the Jury’s Presence
In his fourth issue, Appellant contends that the trial court erred when it raised
the issue of Appellant’s punishment enhancement in the presence of the jury at the
beginning of the punishment phase. The State responds that Appellant has, once
again, waived his complaint because he did not object in the trial court and, even if
Appellant had preserved the issue, the record does not indicate that this “discussion”
influenced the jury’s punishment verdict.
As the punishment phase commenced, the following exchange occurred:
THE COURT: Does the State care to -- is there an enhancement
that needs to be read?
[THE STATE]: There is, Your Honor. I actually don’t have it
on me. And I’m not sure if our witness is here.
THE COURT: You better find out.
[DEFENSE COUNSEL]: Well, Your Honor, that wasn’t filed
prior to the start of this proceeding, which is at least one requirement
for the enhancement to at least be filed.
28
THE COURT: Let me look.
[DEFENSE COUNSEL]: And we --
THE COURT: Let me check my file.
(PAUSE)
THE COURT: I have [sic] don’t see an enhancement.
[DEFENSE COUNSEL]: Well, Your Honor, we would object to
that. It has to be filed before we start this proceeding. It just has to be.
THE COURT: And you are correct. Then no -- there has been
no intent to enhance filed in this that I can see, unless the State has a
file stamped copy they want to show me.
[THE STATE]: Mr. Eckles went to go look. The only thing, I
guess, Your Honor, if that would save the Court and our jurors some
time. If we could just have a few minutes to get with counsel to see if
they want to stipulate to any priors or anything like that. We could
probably make this very expedient.
THE COURT: Two minutes?
[DEFENSE COUNSEL]: Two minutes, Judge.
THE COURT: Ladies and gentlemen, they said two minutes, so
I will hold them to it. All rise for the jury. You can go back to the jury
room for two minutes.
A trial court improperly comments on the weight of the evidence when it
implies approval of the State’s argument, indicates disbelief in the defense’s
position, or diminishes the credibility of the defense’s approach to the case. See
Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). The alleged improper commentary must be material to rise to the
level of reversible error. See Barron, 630 S.W.3d at 406 (“[T]o find reversible error
on the ground of improper judicial conduct or comments, we must conclude (1) that
29
some form of judicial impropriety was in fact committed and (2) that such
impropriety resulted in probable prejudice to the complaining party.” (citing
Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d))). The Court of Criminal Appeals has held that judicial comments which
“taint[] [the defendant’s] presumption of innocence in front of the venire” are
fundamental errors that require no objection. Blue v. State, 41 S.W.3d 129, 132
(Tex. Crim. App. 2000) (plurality op.); see Jasper v. State, 61 S.W.3d 413, 421 (Tex.
Crim. App. 2001).
In support of his contention that he may raise this issue for the first time on
appeal, Appellant posits that the above conversation between the trial court and trial
counsel is analogous to the exchange that occurred between the trial court and a
witness in Proenza v. State, such that Appellant’s failure to object in this instance
should be excused. 541 S.W.3d 786 (Tex. Crim. App. 2017). We disagree.
In Proenza, the Court of Criminal Appeals held that claims of improper
judicial comments raised under Article 38.05 are not forfeitable by inaction. 541
S.W.3d at 798–99 (citing CRIM. PROC. art. 38.05). Importantly, the judicial
commentary in Proenza consisted of pointed, substantive questioning of a witness
by the trial court, questioning which bore on crucial defensive testimony. Id. at 789–
90. This is significantly dissimilar to the trial court’s interjection in this case. Here,
the discussion between the trial court and trial counsel concerned whether there was
an enhancement to be read to the jury and whether the State had filed a notice of its
intention to enhance Appellant’s punishment. There was no discussion of the
propriety of the enhancement or how it would or could affect the outcome of the
punishment phase. Nor did the trial court comment about what effect, if any, the
enhancement would or could have on the jury’s punishment recommendation. The
30
trial court simply inquired as to whether an enhancement allegation would be
presented to the jury before the punishment evidence was presented, which is an
appropriate inquiry and procedurally correct. We conclude that Proenza is
inapposite, and therefore Appellant was required to preserve this issue for appeal.
Accordingly, we hold that, by failing to object to this “discussion” in the trial court,
Appellant did not preserve this complaint for our review.
However, even assuming that this complaint was preserved for our review, we
conclude that the trial court did not improperly comment on the weight of the
evidence.4 Appellant contends that the jury was informed during voir dire that a
person’s punishment range may sometimes be enhanced (which is a proper inquiry
and subject of discussion)—therefore, he reasons, the jury was aware of how one’s
prior convictions could affect the punishment range.
During the punishment phase, the State offered, and the trial court admitted,
the judgments of Appellant’s prior convictions, which Appellant’s trial counsel
stipulated to. Appellant also testified that he had been convicted of other offenses
and imprisoned in the past. The trial court’s discussion of enhancements created,
according to Appellant, a scenario in which it appeared to the jury that Appellant
had escaped the consequences of a prior conviction based on a technicality. The trial
court did not instruct the jury to disregard the enhancements “discussion.” As such,
Appellant concludes that this undue impression could have caused the jury to
recommend a more severe sentence; the jury recommended a sentence of nine years’
4
Although Appellant also asserts that the trial court improperly lectured Appellant’s trial counsel
and displayed a degree of animus against him, the statements made by the trial court of which Appellant
complains were made after the jury returned its punishment verdict. Appellant presents no argument other
than the trial court improperly commented on the weight of the evidence. Despite Appellant’s assertion,
we cannot conceive of how a trial court’s post-sentencing comments could have improperly affected or
influenced the jury’s punishment deliberations and subsequent verdict.
31
imprisonment when the maximum punishment available for his conviction was ten
years’ imprisonment.
“In his discretion, a judge may lawfully provide guidance and manage the
presentation of evidence without abandoning his role as a neutral and independent
arbiter.” Barron, 630 S.W.3d at 408 (citing Strong v. State, 138 S.W.3d 546, 552
(Tex. App.—Corpus Christi–Edinburg 2004, no pet.)). We do not agree with
Appellant’s assertion that the trial court’s limited discussion concerning whether an
enhancement allegation should have been presented to Appellant before the
punishment evidence was presented (which, if one is alleged, it must be), and
whether the State had filed a notice of its intention to enhance Appellant’s
punishment constituted improper judicial commentary.
We hold that Appellant did not preserve this issue for our review and, even if
he had, the trial court did not improperly comment on the weight of the evidence or
otherwise err when it mentioned the issue of Appellant’s punishment enhancement
in the presence of the jury at the beginning of the punishment phase. Accordingly,
we overrule Appellant’s fourth issue.
E. Article 37.07 Parole Law Instruction
In his fifth issue, Appellant contends that the trial court erred when it
submitted an incomplete Section 4(c) parole-law instruction in its punishment
charge. We agree. However, we conclude that Appellant was not egregiously
harmed by this error.
Article 37.07 sets out the parole law instructions to be included in the trial
court’s punishment charge. See CRIM. PROC. art. 37.07, § 4(a)–(c) (West Supp.
2022). With the exception of certain offenses or affirmative findings that are not
applicable here, the particular parole law instruction to be submitted is determined
32
by either (1) the degree of felony offense for which the defendant has been convicted
at trial or (2) the degree of felony for which the convicted offense is “punishable.”
See id. Here, Section 4(c) provides the instruction applicable to offenses punishable
as a felony of the third degree, including the offense for which Appellant was
convicted. See id. art. 37.07, § 4(c).
The particular instruction in the trial court’s punishment charge about which
Appellant complains reads as follows:
Under the law applicable in this case the defendant, if sentenced to a
term of imprisonment, the defendant will not become eligible for parole
until the actual time served equals one-fourth the sentenced [sic]
imposed. Eligibility for parole does not guarantee that parole will be
granted.
By comparison, the applicable Section 4(c) parole law instruction states:
Under the law applicable in this case, if the defendant is sentenced to a
term of imprisonment, the defendant will not become eligible for parole
until the actual time served plus any good conduct time earned equals
one-fourth of the sentence imposed. Eligibility for parole does not
guarantee that parole will be granted.
CRIM. PROC. art. 37.07, § 4(c) (emphasis added).
We agree with Appellant that the trial court erred when it did not include the
phrase “plus any good conduct time” in the parole law instruction. “The trial court
must follow and only submit the language set out in the controlling statute verbatim;
no deviation is permitted.” Alaniz v. State, 648 S.W.3d 657, 662 (Tex. App.—
Eastland 2022, no pet.) (citing Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App.
2002)); see also Martinez v. State, No. 11-21-00051-CR, 2023 WL 3010970, at *3
(Tex. App.—Eastland Apr. 20, 2023, pet. ref’d) (mem. op., not designated for
publication).
33
Because we have determined that charge error exists, we turn now to the
appropriate harm analysis. See Ngo, 175 S.W.3d at 743. Appellant did not object
to the trial court’s punishment charge, therefore we will, again, review the charge
error under the Almanza “egregious harm” standard and related factors. Villareal,
453 S.W.3d at 433; Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007).
1. The Almanza Factors
Under the first Almanza factor, we review the punishment charge in its
entirety. The Court of Criminal Appeals has stated that “the over-all purpose of the
[parole] instruction is to inform jurors of these concepts as a general proposition, but
to prohibit the jury from using its notions of [those concepts] in any calculus in
assessing the appropriate punishment.” Luquis, 72 S.W.3d at 360. Nevertheless,
charge error may be ameliorated by the inclusion of other instructions in the same
charge.
In keeping with that purpose, the punishment charge in this case informed the
jury of the applicable range of punishment to be considered by them for the charged
offense (a third-degree felony), instructed the jury to limit its punishment
deliberations to the law and the evidence presented in the case, and further instructed
the jury that, in assessing Appellant’s punishment, the jury was not to consider
(1) the extent to which “good conduct time” could be awarded to or forfeited by
Appellant or (2) the manner in which the parole law may be applied to Appellant.
The jury was also instructed that Appellant’s eligibility for parole did not assure that
he would be granted parole. Absent evidence to the contrary, and in the case before
us there is none, we presume that the jury understood and followed the trial court’s
instructions. Alaniz, 648 S.W.3d at 663 (citing Taylor v. State, 332 S.W.3d 483, 492
(Tex. Crim. App. 2011)); see also Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.
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App. 2005); Smith v. State, 631 S.W.3d 484, 500 (Tex. App.—Eastland 2021, no
pet.).
Moreover, unlike the circumstances in Martinez and Alaniz (which concerned
the improper submission of repealed and, therefore erroneous, parole law
instructions), the error that we are confronted with here pertains to the omission of
only a phrase of the applicable Section 4(c) instruction, which describes how any
“good conduct time” may affect parole eligibility calculations. Because the jury was
instructed, in assessing Appellant’s punishment, not to consider how the parole law
might affect or be applied to Appellant, we presume that the jury would not have
considered how the phrase “good conduct time” could have affected Appellant’s
future parole eligibility calculations if that phrase had been included in the charge.
Further, it was unlikely that the punishment charge as submitted, when considered
in its entirety, would either confuse, influence, or mislead the jury. Therefore, we
conclude that the first Almanza factor does not weigh in favor of finding that
Appellant suffered egregious harm. See Martinez, 2023 WL 3010970, at *4; Alaniz,
648 S.W.3d at 663.
The second Almanza factor focuses on the evidence presented at trial.
Appellant does not challenge the sufficiency of the evidence to support the
punishment that was imposed. Nevertheless, the record is replete with evidence that
Appellant abused Torres physically and emotionally throughout the tumultuous year
that they were intermittently dating.
Appellant testified at the punishment phase. He apologized to Torres and her
daughter for his conduct but denied responsibility for nearly all of it, except for his
assault on Torres that was captured on video. He also minimized his responsibility
for his prior criminal convictions, stating that he “felt like none of those chargers in
35
[his] past matter because none of them had to do with family violence.” Appellant
even denied that he was guilty of those prior offenses and claimed that he only
pleaded guilty because he “had so much back time [he] signed for time served.”
Thus, the punishment evidence presented by the State and Appellant’s testimony
indicates that Appellant is unable or unwilling to accept responsibility for his
egregious conduct, which bodes poorly for his ability or willingness to rehabilitate,
but instead is indicative of his proclivity to reoffend. See Martinez, 2023 WL
3010970, at *5; see also Alaniz, 648 S.W.3d at 663. Considering the entire record,
including Appellant’s criminal history, the jury could have reasonably concluded
that a nine-year sentence was an appropriate punishment for Appellant’s conduct.
Therefore, we conclude that the second Almanza factor does not weigh in favor of
finding that Appellant suffered egregious harm.
The third Almanza factor pertains to the arguments of trial counsel. Here, trial
counsel’s arguments did not exacerbate the charge error. The record before us shows
that neither trial counsel emphasized the purpose of parole, the manner in which it
would apply to or affect Appellant, or how “good conduct time” may have affected
Appellant’s term of incarceration. Interestingly, Appellant’s trial counsel briefly
discussed parole generally by stating that “[p]arole is an option . . . [b]ut you are not
allowed to consider it. You are just allowed to know about it. . . . And you are
allowed to know that a Defendant sentenced to TDCJ, the Institutional Division, they
can get good credit. And, yes, that credit can be taken away.” If anything, the
arguments of Appellant’s trial counsel ameliorated the “good conduct time”
omission in the trial court’s punishment charge by mentioning the precise
information that Appellant now complains was erroneously omitted. Therefore, we
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conclude that the third Almanza factor does not weigh in favor of finding that
Appellant suffered egregious harm. See Alaniz, 648 S.W.3d at 663.
Finally, the fourth Almanza “catch-all” factor requires that we consider any
other relevant information in the record that would assist in our determination of
whether Appellant suffered egregious harm as a result of the charge error. See
Gelinas, 398 S.W.3d at 707; Almanza, 686 S.W.2d at 171. The record does not
indicate that the jury, during its punishment deliberations, ever inquired of or
submitted any note or other form of communication to the trial court regarding “good
conduct time,” the parole law, or how either might apply to or affect Appellant. See
Alaniz, 648 S.W.3d at 664 (citing Lopez, 314 S.W.3d at 73). Thus, the record does
not show, or even suggest, that the jury (1) was influenced, confused, or misled by
the instructions in the punishment charge or (2) even considered or mentioned the
parole law’s application or effect during deliberations. See Hooper v. State, 255
S.W.3d 262, 272–73 (Tex. App.—Waco 2008, pet. ref’d). Further, Appellant does
not point to, nor have we found, other information in the record that would assist in
our egregious-harm determination. Because there is no other relevant information
in the record that shows or suggests that the jury’s punishment recommendation was
influenced or affected by the charge error, we conclude that the fourth Almanza
factor also does not weigh in favor of finding that Appellant suffered egregious
harm.5
5
Appellant’s brief harm analysis appears to urge that we consider the numerous other alleged errors
in the trial court’s guilt-innocence charge and in other parts of the trial in conjunction with the punishment
charge error to find that Appellant was egregiously harmed under this, his fifth issue. To the extent that
Appellant’s contention is that the cumulative error doctrine entitles him to a reversal, we disagree. That
doctrine provides relief only when constitutional errors so fatally infect the trial that they violate the
principle of fundamental fairness. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).
Further, this doctrine does not apply to non-errors. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.
App. 1999).
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We hold that the trial court erred when it omitted from its punishment charge
the phrase “plus any good conduct time” in the parole law instruction. But we
conclude that this error does not result in a level of egregious harm such that
Appellant was deprived of a fair and impartial trial. Accordingly, we overrule
Appellant’s fifth issue. See Martinez, 2023 WL 3010970, at *6; Alaniz, 648 S.W.3d
at 664.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
August 31, 2023
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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