Date: 10-02-2022

Case Style:

Tyler Marquette Collins v. The State of Texas

Case Number: 04-20-00139-CR

Judge: Irene Rios

Court:

Fourth Court of Appeals San Antonio, Texas

On appeal from the 227th Judicial District Court of Bexar County

Plaintiff's Attorney:
Joe D. Gonzales
Jay Brandon

Defendant's Attorney:

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San Antonio, Texas – Criminal Defense lawyer represented defendant with a capital murder charge.

On August 24, 2016, at around 11:30 p.m., police responded to a report of a shooting at a house in Converse, Texas. Upon arrival, police found Thomas Mirone lying on a driveway, severely wounded and bleeding. Mirone was transported to the hospital by ambulance, where he died from multiple gunshot wounds. Collins was charged by indictment with capital murder in connection with Mirone’s death. The indictment alleged Collins intentionally caused Mirone’s death by shooting him with a deadly weapon, a firearm, and Collins committed the murder while in the course of committing or attempting to commit the offense of robbery of Thomas Mirone. Alternatively, the indictment alleged that Collins committed the murder while in the course of committing or attempting to commit the offense of burglary of a habitation owned by Ernest Perez. Collins pleaded not guilty to the charge in the indictment. 04-20-00139-CR - 3 - Pertinent Evidence Presented by the State1 At trial, Mirone’s live-in girlfriend, Berta Badillo, testified that at about 9:00 p.m. on August 24, 2016, she went with Mirone to a gas station/Church’s Chicken to meet a potential buyer for Mirone’s car, a maroon Cadillac. Badillo and Mirone had two small children and they brought the children with them. At the gas station/Church’s Chicken, Mirone exited the car and spoke to a man who Badillo later identified as Charles Fuller. Fuller had arrived at the gas station/Church’s Chicken in a silver Charger. Mirone, Badillo, and the children stayed at the gas station/Church’s Chicken for about thirty minutes, then Mirone drove them home. Shortly thereafter, Mirone went out, taking the couple’s four-year-old child with him. Badillo thought that Mirone was going to meet with Fuller again about selling the Cadillac. When Mirone and their child did not come home by 10:30 or 11:00 p.m., Badillo started to worry. When Badillo walked outside, she saw that the Cadillac was still parked in the driveway and that her car was gone. Badillo woke up the couple’s other child and drove to Ernest Perez’s house. Mirone and Perez were friends, and Mirone was often at Perez’s house. Badillo was unable to get to Perez’s house because the street was blocked by police cars. Badillo knew that Mirone sold marijuana; however, she did not know that Mirone was going to Perez’s house to sell marijuana that night. Badillo later realized that Mirone had lied to her about going out to sell the car that night because he did not take the Cadillac with him when he left. The State presented testimony from two eyewitnesses, Perez and Walter Busby. On the night of August 24, 2016, they were at Perez’s house in Converse, Texas, “hang[ing] out” and smoking marijuana. Mirone and his four-year-old child were also at Perez’s house. 2 Perez and 1 We recognize the State and the defense presented additional evidence at trial; however, we tailor our summary of the evidence to the matters raised on appeal and analyzed in this opinion. 2 Perez’s girlfriend, Samantha Rubio, was in the house as well, but she did not testify at trial. 04-20-00139-CR - 4 - Busby were sitting at a table in the dining area near the kitchen. Perez and Busby were on their phones and watching television. Meanwhile, Mirone was in the kitchen and in the process of selling drugs. Mirone had placed a carry-on-size suitcase on the kitchen counter. The suitcase contained bags of marijuana.3 Mirone was using his cell phone to take photos of the marijuana. Mirone was also talking and texting on his cell phone. Mirone left the kitchen through a door leading to the garage, and then returned to the kitchen. Busby testified that, at this point, two men entered the house through the door leading to the garage and spoke to Mirone. The men instructed Busby to go into the garage and they forced Perez and the child into the garage with Busby. One of the men held a handgun on the top of Perez’s head. Once in the garage, the men yelled at Perez and told him to give them things. Two additional men entered the garage. The men ordered Perez and the child back into the kitchen. One of the men hit Perez on the face with a handgun. Perez testified that, on the night in question, Mirone was going in and out of the kitchen, while his child was playing with Perez’s dog and Perez was sitting at the table. Perez next remembered being in the garage with four men, all of whom were “African-American.” One of these men held the barrel of a gun to the back of Perez’s head and told him to “get the fuck on the floor.” Perez complied and grabbed the child who was within his reach. Perez brought the child close to his body and held him tight. Perez further testified that he, the child, Busby, and Mirone were all in the garage with the four men. Perez saw a man, whom he later identified as Collins, pointing a rifle at Busby and Mirone. Both Busby and Mirone were on the ground in the garage. One of the men searched Perez’s pockets. Thereafter, Perez was forcibly picked up and led back into the house. Perez later 3 The State elicited testimony from Collins that the suitcase in question “look[ed] like it would” “hold pounds of marijuana.” 04-20-00139-CR - 5 - identified the man who led him back into the house as Charles Fuller. While directing Perez back into the house, Fuller hit Perez on the face and head with the butt of a gun. Although Fuller did not hit the child, he did try to pull the child away from Perez. While hitting Perez and taking him into the house, Fuller questioned Perez about drugs, money, jewelry, and guns. Perez told Fuller he did not have any of those things in his house. After Fuller and Perez returned to the kitchen, Fuller told Perez to get back on the ground. Perez saw Mirone standing by the table near the kitchen, having an altercation with Collins. Perez then heard a gunshot and saw Mirone collapse, fall forward, and land near him. Perez saw bullets hitting the tile floor next to him. Perez also saw Mirone on the floor near him. Collins was standing over Mirone and holding a rifle. 4 Perez heard gunshots. Neither the child, who was still with Perez on the floor, nor Perez, had been shot. After the shooting stopped and it was silent, Perez stood up and saw three men trying to exit through the front door. But the men could not leave through the front door because the knob was broken. Perez yelled at them that the front door was broken and that they needed to “get the fuck out by the garage door.” While at the front door, Fuller swung around and fired at Perez with his handgun. Perez, however, ducked behind the bar area and was not shot. All four men left the house through the kitchen door leading to the garage. Busby, who had remained in the garage, testified that after the four men exited the garage, they stood on the driveway and fired shots into the garage. The men then sped away in two cars, one of which a neighbor described as a silver or white Charger. After the four men fled, Perez and Busby were unable to call 9-1-1 because the men had taken their cell phones. Mirone was on the kitchen floor, bleeding. Mirone was conscious, but 4 Perez later provided police a detailed description of Collins, including his clothing, hairstyle, and tattoos. 04-20-00139-CR - 6 - unable to move. Perez and Busby carried Mirone out of the house and onto the driveway. In a panic, Perez ran to a nearby house and told his neighbor to call the police. Neighbors gathered on Perez’s driveway. One neighbor tried to help Mirone by placing a make-shift tourniquet on his leg. When police arrived on the scene, they found Mirone lying on the driveway in front of an open garage door. Mirone had a very large wound on his upper left leg and gunshot wounds on his back. An ambulance arrived and transported Mirone to the hospital, where he died in the emergency room. A second ambulance arrived and took Busby, who had been shot in the knee, to the hospital. During the on-scene investigation, police searched Perez’s house. Police did not find any weapons or drugs in the house. Police found an empty suitcase on the kitchen counter. Police also found two types of shell casings at the scene: six 7.62 by 39-millimeter casings, which are fired from a rifle; and three .40 caliber brass shell casings, which are fired from a pistol. All of the 7.62 by 39-millimeter casings were found inside the house. All of the .40 caliber casings were found in the garage and on the driveway. A ballistics expert testified that the six shell casings found inside the house were all fired from the same weapon. Police found twenty-dollar bills, totaling $1060.00, scattered on the street near Perez’s house. Police concluded that the bills, which repeated serial numbers, were counterfeit. In fact, only four different serial numbers appeared on the bills. A forensic scientist analyzed the counterfeit twenty-dollar bills scattered on the street in front of Perez’s house and determined that prints from Collins’s thumb, finger, and palm appeared on four of them. Police obtained video camera surveillance footage from the gas station/Church’s Chicken where Collins, Fuller, and the two other men had gathered before going to Perez’s house on August 24, 2016. The surveillance footage showed Collins’s clothing and hairstyle on the night of August 24, 2016, and they matched Perez’s description of the person who shot Mirone with a rifle. 04-20-00139-CR - 7 - Additionally, police prepared a photo line-up from which Perez identified Collins as the person who shot Mirone. The medical examiner who performed Mirone’s autopsy testified that Mirone had suffered from three gunshot wounds and shrapnel injuries. None of the entry wounds were on the front side of Mirone’s body. One of the bullets had lodged above Mirone’s right knee and was retrieved from Mirone’s body. The bullet was from a centerfire rifle. An AK-47 is a type of centerfire rifle. The medical examiner concluded Mirone’s death was caused by multiple gunshot wounds. Pertinent Evidence Presented by the Defense Collins testified in his own defense. Collins did not dispute that he went with Fuller to a house in Converse, Texas, on August 24, 2016, to obtain drugs. Fuller had told Collins that he was going to “re-up real quick” which “means . . . if you are a drug dealer, you run out of drugs and you buy more drugs to basically make more money.” Two other men, Quincy Boynton and Walter Scott, accompanied Collins and Fuller to Perez’s house. Collins and Fuller drove together in one car; Boynton and Scott drove together in another car. Collins denied that he “personally” went to the house to do a drug deal, but he admitted that he “knew that a drug deal was about to happen.” When they arrived at Perez’s house, Fuller exited the car and went into the house through the open garage door. Collins waited in the car, expecting Fuller to be gone for about a minute. While Fuller was at the house, Collins was concerned about Fuller “being robbed or being harmed in some type of way.” After waiting more than five minutes, Collins grabbed “a rifle-style weapon” from the back seat of the car, exited the car, walked up the driveway, and went inside the garage. Once inside the garage, Collins proceeded to the door leading into the house, which was ajar. Collins “lightly knocked on the door, but no one answered it.” Collins then “st[u]ck” his head in the house and could see Fuller, Mirone, and Perez. Fuller did not have a gun, but it appeared to Collins that both Mirone and Perez were pointing guns at Fuller. Mirone and Perez were 04-20-00139-CR - 8 - threatening Fuller and demanding money from him. Collins feared for Fuller’s life. Collins then “fully” entered the house and when Perez saw him inside the house, Perez fired a shot. Collins returned fire, shooting “in the direction” where Mirone and Perez were robbing Fuller. Collins said that he fired the rifle multiple times. Collins acknowledged that he and Fuller tried to leave Perez’s house through the front door, but because they were unable to unlock the front door, they returned to the kitchen, went through the kitchen door, and left through the garage. As they were leaving the garage and going down the driveway Collins heard a gunshot, but he did not know where it came from. When they reached the car, Collins “jump[ed]” in the backseat and Fuller “jump[ed]” in the front seat and they drove away. Collins claimed he never saw Busby, a child, or a woman at Perez’s house. Collins also claimed he never saw any marijuana at Perez’s house. Collins did not report the shooting incident to police because it was chaotic and he was scared. Collins explained that he was “living with the fact that . . . we could have lost our lives and somebody had possibly lost their life inside that house.” The Jury’s Verdict and the Motion for New Trial The jury was instructed on self-defense and defense of others. After deliberating, the jury found Collins guilty of capital murder as charged in the indictment. The trial court sentenced Collins to life in prison without the possibility of parole. Collins filed a motion for new trial, arguing that he was deprived of his right to a fair and impartial trial because members of the jury were biased against him and concluded he was guilty “prior to the onset of trial.” No hearing was held on the motion for new trial, which was overruled by operation of law. Collins appealed. 04-20-00139-CR - 9 - SUFFICIENCY OF THE EVIDENCE In his first point of error, Collins argues the evidence was insufficient to convict him of capital murder in the course of committing a robbery. In his second point of error, Collins argues the evidence was insufficient to convict him of capital murder in the course of committing a burglary. Thus, in his first two points of error, Collins challenges the sufficiency of the evidence to support the aggravating felonies alleged in the indictment—robbery and burglary. 5 We consider these points of error together. Standard of Review In performing a sufficiency review, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the challenged elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). We measure the sufficiency of the evidence “by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge.” Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (quotation marks omitted). “We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jenkins, 493 S.W.3d at 599 (quotation marks omitted). “Each fact need not point directly and independently to the appellant’s guilt, as long as 5 In his reply brief, Collins argues for the first time that the evidence was insufficient to support the jury’s rejection of self-defense. Nowhere in his opening brief does Collins present a point of error or argument challenging the sufficiency of the evidence to support the jury’s rejection of self-defense. Because an appellant is prohibited from raising “a completely different sufficiency challenge for the first time in a reply brief[,]” we do not consider Collins’s argument concerning the sufficiency of the evidence to support the jury’s rejection of self-defense. See Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019) (“We agree with the courts of appeals that new issues raised in a reply brief should not be considered.”); see Deutsch v. State, 566 S.W.3d 332, 341 n.9 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (declining to consider arguments not raised in the appellant’s original briefing and raised for the first time in a reply brief). 04-20-00139-CR - 10 - the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Id. “The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.” Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). As the reviewing court, our duty is “simply to ensure that the evidence presented supports the jury’s verdict and that the State has presented a legally sufficient case of the offense charged.” Id. Sufficiency of the Evidence—Aggravating Felony A person commits the offense of capital murder if he intentionally causes the death of another person in the course of committing or attempting to commit burglary, robbery, or one of the other aggravating felonies listed in the statute. TEX. PENAL CODE ANN. §§ 19.03(a)(2); 19.02(b)(1). In a capital murder trial, the State must prove that (1) the defendant intentionally caused the death of an individual and (2) the defendant committed the murder while in the course of committing an aggravating felony. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995). When, as here, a capital murder indictment alleges more than one aggravating felony, “the evidence need only be sufficient to establish one of the underlying felonies in the indictment.” Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995). In his second point of error, Collins complains the evidence was insufficient to support the aggravating felony of burglary because it did not show that he entered Perez’s house without the effective consent of the owner. A person commits the offense of burglary if, without the effective consent of the owner, he intentionally or knowingly enters a habitation and commits or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02(a)(3); Davila v. State, 547 S.W.2d 606, 608 n.2 (Tex. Crim. App. 1977). The only burglary element challenged by Collins is the lack of effective consent of the owner. 04-20-00139-CR - 11 - Collins asserts that the evidence established that “Mirone, with Perez’s knowledge and consent, invited Fuller and Collins to Perez’s home to conduct a drug deal.” To support this argument, Collins points to evidence from data extracted from Mirone’s cell phone showing that Mirone had texted Perez’s address to Fuller. But Collins’s argument ignores all of the other evidence showing a lack of effective consent. Perez testified that Collins was not invited to enter his house and Collins did not have permission to enter his house. Collins himself admitted in his testimony that he entered Perez’s house without Perez’s consent and he was never invited into Perez’s house. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude a rational jury could have found beyond a reasonable doubt that Collins entered Perez’s home without the effective consent of the owner. Collins incorporates a variety of other complaints into his second point of error. Collins directs our attention to purported deficiencies in the police investigation and to inconsistencies in Busby’s and Perez’s testimony. These complaints lack merit because Collins fails to explain how any of these complaints relate to the sufficiency of the evidence to support the aggravating felony of burglary or, for that matter, any other element of the charged offense. It was the jury’s responsibility “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” See Jenkins, 493 S.W.3d at 599. The jury was the sole judge of the credibility of the witnesses and the weight to be given to the evidence. See Queeman, 520 S.W.3d at 622. Again, under the applicable sufficiency standard of review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the challenged elements of the crime beyond a reasonable doubt. Jenkins, 493 S.W.3d at 599. “In a capital murder prosecution the evidence need only be sufficient to establish one of the [aggravating] felonies in the indictment.” Matamoros, 901 S.W.2d at 474. Because we have 04-20-00139-CR - 12 - concluded the evidence was sufficient to support the aggravating felony of burglary, we need not determine if the evidence was sufficient to support the alternative aggravating felony of robbery. See id. (declining to address whether the evidence was sufficient to support the alternative aggravating felony of robbery after concluding the evidence was sufficient to support the aggravating felony of burglary). We overrule Collins’s first and second points of error. THE INVESTIGATION In his third point of error, Collins argues that the investigation’s “blind focus” resulted in an unfair trial and deprived him of his right to due process. Collins maintains that the investigation of his case was “riddled with serious errors and shortcomings, mutually exclusive inconsistencies, and faulty assumptions.” He also argues that the investigating officers “immediately decided that [he] was guilty and built a faulty case upon that false premise.” To support this complaint, Collins cites a post-conviction habeas corpus case, Ex Parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989). In Brandley, the record contained the trial court’s express findings that the State had failed to conduct a proper investigation, and that the investigation had a “blind focus which ignored leads to evidence inconsistent with the premature conclusion that the applicant had committed the crime.” Id. at 887. The Texas Court of Criminal Appeals agreed with the trial court’s findings and granted habeas corpus relief to set aside the defendant’s conviction. See id. at 894–95. Here, unlike the situation presented in Brandley, Collins’s case is on direct appeal, and the record contains no findings about the State’s investigation. Generally, as a prerequisite to presenting a complaint on appeal, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court ruled on the request, objection, or motion, either explicitly or implicitly. See TEX. R. APP. P. 33.1. Rule 33.1 “encompasses the concept of ‘party responsibility[,]’” which means “[t]he 04-20-00139-CR - 13 - complaining party bears the responsibility of clearly conveying to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale.” Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). Here, Collins’s briefing does not direct us to any part of the record showing that he complained about the investigation and obtained a ruling on the complaint from the trial court. See TEX. R. APP. P. 38.1(i) (requiring the argument section of an appellant’s brief to contain “appropriate citations” “to the record.”). Because Collins did not raise this complaint in the trial court, the point of error is not preserved for appellate review. See TEX. R. APP. P. 33.1. We overrule Collins’s third point of error. THE INDICTMENT In his sixth point of error, Collins argues the trial court erred by allowing the State, over his objection, to amend the indictment after the trial commenced. The State’s original indictment alleged Collins murdered Mirone while in the course of committing or attempting to commit the offense of robbery “of Thomas Mirone.”6 Immediately before the jury was sworn, the State asked the trial court for permission to delete the phrase “of Thomas Mirone” from the indictment. Collins 6 The original indictment stated in part: PARAGRAPH A [O]n or about the 24th Day of August, 2016, TYLER COLLINS, hereinafter referred to as defendant, did intentionally cause the death of an individual, namely, THOMAS MIRONE, hereinafter referred to as complainant, by SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY, A FIREARM, and the defendant was in the course of committing or attempting to commit the offense of ROBBERY OF THOMAS MIRONE; PARAGRAPH B [O]n or about the 24th Day of August, 2016, TYLER COLLINS, hereinafter referred to as defendant, did intentionally cause the death of an individual, namely, THOMAS MIRONE, hereinafter referred to as complainant, by SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY, A FIREARM, and the defendant was in the course of committing or attempting to commit the offense of BURGLARY OF A HABITATION OWNED BY ERNEST PEREZ[.] (emphasis added). 04-20-00139-CR - 14 - objected under article 28.10 of the Texas Code of Criminal Procedure, but the trial court overruled his objection, granted the State’s motion, and allowed the phrase “of Thomas Mirone” to be deleted from the indictment. Applicable Law Article 28.10 of the Texas Code of Criminal Procedure states: (a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information. (b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object. (c) An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. TEX. CODE CRIM. PROC. ANN. art. 28.10. On appeal, Collins relies on both section (a) and section (c) of article 28.10 to support his argument. See id. We will assume, without deciding, that the trial court erred in permitting the State to delete the phrase “of Thomas Mirone” from the indictment over Collins’s objection. See Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000) (declining to address whether the trial court erred in amending the indictment and deciding only whether the appellant was harmed by the trial court’s action). A reviewing court must disregard a violation of article 28.10, unless it affects a substantial right of the defendant. See Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005) (“[W]hen only a statutory violation is claimed, the error must be treated as nonconstitutional for the purpose of conducting a harm analysis . . . .”); TEX. R. APP. P. 44.2(b) (providing non-constitutional errors that “do[] not affect substantial rights must be disregarded”); 04-20-00139-CR - 15 - see also Trejos v. State, 243 S.W.3d 30, 41–42 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). In the context of article 28.10, a substantial right of the defendant is not affected if he had adequate notice of the allegations and was able to prepare a defense. Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 1991); State v. Jarreau, 563 S.W.3d 477, 490 (Tex. App.—San Antonio 2018, pet. ref’d). In his briefing, Collins acknowledges that an error under article 28.10 is non-constitutional error and must be disregarded unless the error affected a substantial right. See TEX. R. APP. P. 44.2(b); see Wright, 28 S.W.3d at 531–32. Collins nevertheless argues a substantial right was affected because deleting the phrase “of Thomas Mirone” from the indictment “forced [him] to prepare a broader defense involving significantly more details and evidence.” However, Collins fails to provide any further explanation or any references to such evidence. Collins’s argument is therefore conclusory. Furthermore, Collins’s argument is not supported by the record. Collins put on several defenses—self-defense, defense of others, and necessity. In support of these defenses, Collins testified on his own behalf. None of Collins’s defenses depended on Mirone being the exclusive robbery victim. Additionally, Collins’s overall defensive strategy was to highlight inconsistencies in the testimony of the State’s witnesses and to emphasize purported deficiencies in the police investigation. The record demonstrates that Collins’s ability to prepare a defense was unaffected by the amendment. Moreover, the deletion of the phrase “of Thomas Mirone” from the robbery allegation did not affect the alternative burglary allegation. As previously discussed, the evidence supported a finding that Collins committed the murder in the course of committing a burglary. Therefore, the jury could have found that Collins murdered Mirone in the course of committing a burglary and without any reference to him committing a robbery. 04-20-00139-CR - 16 - An error affects a substantial right “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). “A criminal conviction should not be overturned for non-constitutional error if the [reviewing] court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). After examining the record as a whole, we have fair assurance that the deletion of the phrase “of Thomas Mirone” from the indictment had little to no influence on the jury’s verdict. See id. We conclude that even if the trial court erred in allowing the indictment to be amended, the amendment did not affect a substantial right. See Flowers, 815 S.W.2d at 729; Jarreau, 563 S.W.3d at 490; Trejos, 243 S.W.3d at 42 (overruling a complaint about error in amending the indictment because the error was harmless under rule 44.2(b)). We overrule Collins’s sixth point of error. EXTRANEOUS-OFFENSE EVIDENCE In his seventh point of error, Collins argues the trial court abused its discretion by overruling his objections to the State’s extraneous-offense evidence under rule 404(b) and rule 403 of the Texas Rules of Evidence. At a hearing outside the jury’s presence, the State asked for permission to present evidence of an extraneous offense, an aggravated assault with a deadly weapon. The State explained that the extraneous-offense evidence would show that about ten months before shooting Mirone, Collins had arranged to buy a large quantity of marijuana from a drug dealer in Converse, Texas. During the drug deal, Collins shot the dealer in the back and absconded with the marijuana. Twenty-dollar bills, including some counterfeit bills, were found at the gas station/convenience store where the shooting took place. Some of the bills contained Collins’s thumb, finger, and palm prints. 04-20-00139-CR - 17 - Collins objected to the admission of the extraneous-offense evidence, arguing it was inadmissible under rule 404(b) of the Texas Rules of Evidence because it was being offered to “make him look like a bad guy.” Collins also objected to the admission of the extraneous-offense evidence under rule 403 of the Texas Rules of Evidence, arguing that the “prejudicial effect” “greatly outweighs the probative value” of the extraneous-offense evidence and that the extraneous-offense evidence would “confuse the jury.” The State contended that it needed the extraneous-offense evidence to rebut the defensive theory that Mirone and Perez, not Collins and Fuller, were the actual perpetrators. According to the State, the extraneous-offense evidence was admissible under rule 404(b) because it demonstrated “intent, motive, modus operandi, identity, common scheme, [and] plan.” The State further argued that the extraneous-offense was sufficiently similar to the instant offense and that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice. After considering the State’s preview of the extraneous-offense evidence and conducting the rule 403 balancing test, the trial court overruled Collins’s rule 404(b) and rule 403 objections and ruled that the extraneous-offense was admissible. The extraneous-offense evidence presented to the jury showed that about ten months before the instant offense, Collins shot Jacques Durham during a drug deal. The State elicited testimony from Durham that, on the night of October 13, 2015, he met Collins at a gas station/convenience store in Converse, Texas, to “do a drug deal.” Arranged through text messages, the drug deal involved Durham selling a large quantity of marijuana to Collins.7 The marijuana was worth a couple of thousand dollars. During the drug deal, Collins pulled a gun on Durham and shot him in 7 Although Durham did not identify Collins at trial, the evidence showed that about two weeks after he was shot, Durham identified Collins as the person who shot him in a photo line-up prepared by police. 04-20-00139-CR - 18 - the back. Durham also claimed that he never saw any of the money. Durham was temporarily paralyzed by the gunshot wound and he spent more than six months in the hospital recovering from his injuries. In addition to Durham’s testimony, the State presented surveillance camera footage from the gas station/convenience store where the extraneous offense took place. The surveillance camera footage showed that Collins and Durham arrived at the gas station/convenience store in separate cars driven by others. Collins and Durham got out of their respective cars and met briefly outside Durham’s car. Then they both went into Durham’s car: Collins through the back passengerside door and Durham through the front passenger-side door. About thirty seconds later, the car rocked forcefully, and Collins exited from the car with a bag in his hands. The car that had dropped Collins off was waiting for him nearby. Collins ran to the car, opened the back driver-side door, and tried to get into the car, all while holding a bag in his hands. Collins was able to get into the car before it sped away. Both Collins’s car and Durham’s car left the gas station/convenience store rapidly. The extraneous-offense evidence also showed that immediately after the shooting a bag of money was found at the gas station near the place where Collins had exited from Durham’s car. The bag contained 226 twenty-dollar bills. The top and bottom layers of bills were real, but the bills in the middle were found to be counterfeit. A forensic scientist analyzed the twenty-dollar bills from the bag and determined that prints from Collins’s thumb, finger, and palm appeared on at least ten of the bills.8 8 The bag also contained a social security card with the name “Tyler Marquette Collins” on it. 04-20-00139-CR - 19 - Standard of Review We review the trial court’s determination on admissibility of evidence, including extraneous-offense evidence, for an abuse of discretion. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). “Considering that the trial court has the best view of the evidence, an appellate court will uphold a trial court’s ruling on admissibility so long as it is within the ‘zone of reasonable disagreement.’” Id. Texas Rule of Evidence 404(b) Evidence of a crime, wrong, or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character. Id. at 756; see TEX. R. EVID. 404(b). However, “a party may introduce evidence of other crimes, wrongs, or acts if such evidence logically serves to make more or less probable [1] an elemental fact, [2] an evidentiary fact that inferentially leads to an elemental fact, or [3] defensive evidence that undermines an elemental fact.” Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004) (recognizing “extraneous-offense evidence may be admissible when a defendant raises an affirmative defense or a defensive issue that negates one of the elements of the crime”). Evidence of extraneous offenses has been held admissible “[t]o refute a defensive theory raised by the accused.” Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972). Rule 404(b) states that such extraneous-offense evidence may be admitted “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). “This list is illustrative, rather than exhaustive, and the extraneous-offense evidence may be admissible when a defendant raises a defensive issue that negates one of the elements of the offense.” Martin, 173 S.W.3d at 466. Evidence of “a defendant’s particular modus operandi is a recognized exception to the general rule precluding extraneous offense evidence, if the modus operandi evidence tends to 04-20-00139-CR - 20 - prove a material fact at issue, other than propensity.” Id. at 468 (quotation marks omitted). “In the context of extraneous offenses, modus operandi refers to a defendant’s distinctive and idiosyncratic manner of committing criminal acts.” Id. (quotation marks and italics omitted). “Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.” Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008) (italics omitted). “No rigid rules dictate what constitutes sufficient similarities; rather, the common characteristics may be proximity in time and place, mode of commission of the crimes, the person’s dress, or any other elements which mark both crimes as having been committed by the same person.” Id. Voir dire, opening statements, and cross-examination can all be vehicles for raising a defensive theory and may open the door to extraneous-offense evidence. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016) (holding a defensive theory raised in the defense’s voir dire and opening statement opened the door to extraneous-offense evidence); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (holding a defensive theory raised in the defense’s opening statement opened the door to extraneous-offense evidence); Page v. State, 137 S.W.3d 75, 78 n.11 (Tex. Crim. App. 2004) (recognizing that cross-examination may open the door to extraneous-offense evidence). In fact, “vigorous cross-examination [by the defense] can, by itself, place in issue a non-conformity purpose under [r]ule 404(b).” Page, 137 S.W.3d at 78 n.11 (Tex. Crim. App. 2004) (citing Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002)). On appeal, Collins argues the trial court abused its discretion in overruling his rule 404(b) objection because he never opened the door to the extraneous-offense evidence and the extraneous- 04-20-00139-CR - 21 - offense evidence failed to show sufficient similarities between the extraneous offense and the offense charged in this case.9 At the extraneous offense hearing, the State maintained that the extraneous offense was admissible because the defense had “turned the tables” on the State’s case, citing the defense’s cross-examination of one of the State’s key witnesses, Perez. During cross-examination, defense counsel questioned Perez as follows: Counsel: As far as the front door, you’re saying to the jury that the front door just coincidentally happened to be broken the day before this all happened? Perez: The doorknob. Counsel: The doorknob. I apologize for not being more [] specific. The doorknob, right? Perez: Yes. Counsel: And so then as the perpetrators were trying to go flee the residence, they tried to go out the front door, but the doorknob prevented them? Perez: Correct. …. Counsel: You know what a trap house is, don’t you? Have you ever heard of a trap house? Perez: I’ve heard the term. Counsel: Isn’t it, in fact, true that what you and [Mirone] were attempting to do, and Busby were attempting to do was rob individuals who were coming over for a drug deal? Isn’t that true? Perez: Excuse my language, but hell, no. 9 Collins makes a separate argument that the trial court abused its discretion because “identity” was not an issue in the case, but Collins’s interpretation of rule 404(b)’s “identity” exception is too narrow. “Identity” and “modus operandi” often overlap in this context. See Page v. State, 213 S.W.3d 332, 336 n.7 (Tex. Crim. App. 2006) (citing cases in which it had used the terms “identity” and “modus operandi” synonymously); Casey v. State, 215 S.W.3d 870, 881 (Tex. Crim. App. 2007) (italics omitted) (“Although the modus operandi theory of admissibility under [r]ule 404(b) usually refers to evidence offered to prove the identity of a specific person, its use is not so limited in the law. Modus operandi may also encompass the ‘doctrine of chances’ theory to show lack of consent, motive, and the manner of committing an offense.”). 04-20-00139-CR - 22 - Counsel: O.K. All right. Isn’t it true that you had the front door jimmied in such a way that persons could not get out of the front door; isn’t that true? Perez: Hell, no. That door was broken. Counsel: That when they come in your house on this drug deal, that you-all trapped them in the house and then robbed them, isn’t that true? Perez: Hell, no. As demonstrated by this exchange, Collins’s defensive theory was that he and Fuller were victims, not perpetrators. 10 Part of the defense’s strategy was to assert that the parties’ roles were reversed. According to the defense, it was Mirone and Perez who had robbed Fuller, not the other way around. The fact that Collins was involved in a drug deal in Converse, Texas, in which he had posed as a buyer, shot the seller, absconded with a large amount of marijuana, and left behind counterfeit twenty-dollar bills served to make the defense’s theory—that Mirone and Perez were the perpetrators and Collins and Fuller were the victims—less probable. Under these circumstances, the trial court could have reasonably concluded that Collins opened the door to the extraneous-offense evidence, which served a purpose other than character-conformity: it served to rebut a defensive theory raised by Collins. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (stating rebuttal of a defensive theory is “one of the permissible purposes for which [relevant] evidence may be admitted under [r]ule 404(b)”). Collins also argues the trial court abused its discretion because the extraneous offense and the instant offense were not sufficiently similar. The facts of the extraneous offense were that on October 13, 2015, Collins arranged to meet Jacques Durham at a gas station/convenience store in Converse, Texas, for the purpose of buying a large quantity of marijuana from him. The meeting was arranged by text messages. During the transaction, Collins shot Durham in the back and fled 10 This defensive theory was reinforced during Collins’s direct testimony in which Collins claimed that Mirone and Perez were robbing Fuller and that he fired the rifle because he feared for Fuller’s life. 04-20-00139-CR - 23 - the scene in a car driven by another individual. As he fled the scene, Collins left behind a bag containing a large amount of cash. The cash inside the bag consisted of 226 twenty-dollar bills. Many of the twenty-dollar bills were counterfeit, and at least ten of the bills had Collins’s handprints on them. The facts of the instant offense were that on August 24, 2016, Collins and Fuller arranged to meet with Mirone at a house in Converse, Texas, for the purpose of buying marijuana from Mirone. The meeting was arranged by text messages. During the transaction, Collins shot Mirone in the back, took the marijuana, and fled the scene in a car. A large amount of cash was left scattered in front of the house where the shooting occurred. The cash consisted of counterfeit twenty-dollar bills. Some of the twenty-dollar bills contained Collins’s thumb, finger, and palm prints on them. Both the extraneous offense and the instant offense involved: (1) drug deals for the purchase of a large quantity of marijuana; (2) exchanging text messages to arrange the drug deals; (3) shooting the seller of the marijuana in the back; (4) taking the seller’s marijuana; (5) fleeing the scene in a car; (6) leaving behind a large quantity of counterfeit twenty-dollar bills—some which contained Collins’s handprints on them; and (7) acting in concert with one or more individuals. These facts demonstrate a modus operandi sufficiently distinctive and idiosyncratic to qualify as an exception to the general rule precluding extraneous-offense evidence. See Martin, 173 S.W.3d at 468 (concluding the facts showed a modus operandi sufficiently distinctive to qualify as an exception to the general rule precluding extraneous-offense evidence). The trial court could have reasonably concluded that the extraneous offense and the instant offense were sufficiently similar to render the extraneous offense admissible under rule 404(b)(2). We conclude the trial court’s decision to admit the extraneous-offense evidence over Collins’s rule 404(b) objection was within the zone of reasonable disagreement. 04-20-00139-CR - 24 - Texas Rule of Evidence 403 Under rule 403 of the Texas Rules of Evidence, a trial court may exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; Inthalangsy, 634 S.W.3d at 758. The Texas Court of Criminal Appeals has established a four-factor balancing test to determine if unfair prejudice substantially outweighs the probative value of an extraneous offense under rule 403: 1. how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable—a factor related to the strength of the evidence to show that the defendant in fact committed the extraneous offense; 2. the potential the extraneous-offense evidence has to impress the jury in some irrational but nevertheless indelible way; 3. the time the proponent needs to develop the extraneous-offense evidence during which the factfinder will be distracted from consideration of the indicted offense; and 4. the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact is related to an issue in dispute. De La Paz v State, 279 S.W.3d 336, 349 (Tex. Crim. App. 2009). On appeal, Collins argues that the trial court abused its discretion in overruling his rule 403 objection because the extraneous offense occurred ten months before the instant offense, involved different victims, occurred at different locations, and “the jury could have inferred intent from the act itself.” Based on these circumstances, Collins argues “the prejudicial effect of the evidence far outweighs its relevance to any issue in this case.” To support his argument, Collins relies on Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). However, a close reading of this case shows that it does not advance his argument. In Albrecht, the Texas Court of Criminal Appeals held that extraneous-offense evidence was 04-20-00139-CR - 25 - admissible to prove the defendant’s intent or knowledge to commit the offense of passing a forged instrument. Id. In analyzing extraneous-offense evidence caselaw, the court recognized that “[t]he circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts of the cases in which the question of the admissibility of such evidence arises.” Id. at 100.11 We now apply the factors of the rule 403 balancing test to the circumstances of the present case. Considering the first factor—how compellingly the extraneous-offense evidence served to make a fact of consequence more or less probable—the extraneous-offense evidence served to make it less probable that Perez and Mirone were the perpetrators. This factor also encompasses the strength of the proponent’s evidence to show that the defendant in fact committed the extraneous offense. The State’s evidence showing that Collins committed the extraneous offense was strong: Durham identified Collins in a photo line-up as the man who shot him and Collins’s handprints were on some of the counterfeit bills found at the scene of the shooting. As to the second factor—whether the extraneous-offense evidence had the potential to affect the jury in some irrational but nevertheless indelible way—we note the extraneous-offense evidence is similar to the evidence of the instant offense. The extraneous-offense evidence was not any more graphic, violent, or emotional than the offense for which Collins was being tried. As to the third factor—the amount of time it took to develop the extraneous-offense evidence—we recognize that it took more than half a day for the State to develop the extraneous-offense evidence. The State called six witnesses to testify about aspects of the extraneous-offense evidence and 11 In Albrecht, the Texas Court of Criminal Appeals also discussed Jones v. State, 481 S.W.2d 900 (Tex. Crim. App. 1972), a robbery case in which the State presented undisputed direct evidence on the issue of identity (the testimony of four eyewitnesses) and the defendant’s guilty intent could be inferred from the circumstances of the robbery itself. Albrecht,486 S.W.2d at 101. Under those circumstances, the court concluded that “the prejudicial effect of the evidence far outweighs its relevance to any issue in the case[.]” Id. However, the present case is distinguishable from Jones because the defense disputed the testimony of the State’s key eyewitness, Perez. 04-20-00139-CR - 26 - offered six exhibits, including the surveillance camera footage. Some of these witnesses testified for authentication and chain-of-custody purposes. One of the witnesses, a forensic scientist, explained how she determined that Collins’s handprints were on the twenty-dollar bills found at the scene. However, we recognize that the State presented the victim’s testimony concisely and efficiently, and it took the jury only minutes to view the surveillance camera footage. As to the fourth factor—the force of the State’s need for the evidence to prove a fact of consequence—we recognize that the State had only two witnesses who could testify about what happened when Collins, Fuller, and the others entered Perez’s house, Busby and Perez; and only one witness who could testify about the shooting itself, Perez. During its cross-examination of Perez, the defense claimed that Perez was involved in a scheme to rob Collins, Fuller, and the others. Whether Collins was the perpetrator of a scheme to steal a large amount of marijuana from Mirone was heavily disputed at trial. “[T]his [was] not like the case where the State’s direct evidence . . . is not contradicted by appellant nor undermined by appellant’s cross-examination of the State’s witnesses.” De La Paz, 279 S.W.3d at 349 (quotation marks omitted). Therefore, the State’s need for the extraneous-offense evidence was significant and this factor weighed heavily in favor of the admission of the extraneous-offense evidence. In light of these facts and circumstances, the trial court’s determination—that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice—was within the zone of reasonable disagreement. We conclude the trial court did not abuse its discretion in overruling Collins’s rule 403 objection. We overrule Collins’s seventh point of error. WITHDRAWAL OF SHELL CASINGS/EXPERT TESTIMONY 04-20-00139-CR - 27 - In his eighth point of error, Collins argues the trial court abused its discretion in granting the State’s motion to withdraw the shell casings from evidence for the purpose of allowing them to be evaluated by a ballistics expert. After Collins testified that he and Perez each had a rifle and that they each fired their rifle inside the house, the State filed a motion to withdraw the shell casings from evidence. The State sought withdrawal of the shell casings so they could be analyzed by a ballistics expert to determine if the shell casings had been fired from the same weapon. Collins objected to the State’s motion on grounds that: (1) the shell casings had already been admitted into evidence, (2) the State had had ample time to compare the shell casings prior to trial, (3) the evidence might be tampered with if it was withdrawn, and (4) and the withdrawal and testing of the evidence would cause an undue delay in the trial. In response, the trial court advised the parties: “There’s not going to be any undue delay. I’m not going to let that happen.” The trial court then overruled Collins’s objections and granted the motion to withdraw the shell casings. The next day, Collins objected to the ballistics expert’s testimony on the ground that “the defense has not had proper time to review and be able to possibly get our own experts to either do their own examination, review the State’s reports, and possibly either contradict their expert, or come up with different findings.” In response, the trial court advised the parties that it would give the defense an opportunity to review the findings of the State’s expert. The trial court also asked if the defense had its own ballistics expert. When defense counsel said that it did not, the trial court advised the defense: “[I]t takes about 10 minutes for an expert to look at a shell casing and see if it’s fired in the same weapon. So find an expert, let me know who it is, I’ll pay for it, and we’ll have it tested by your expert as soon as possible.” On appeal, Collins complains that the trial court abused its discretion in overruling its objections regarding the withdrawal of the shell casings and the ballistics expert’s testimony 04-20-00139-CR - 28 - because: (1) it caused an undue delay in the trial, (2) it gave the State an unfair advantage, and (3) it prevented defense counsel from having adequate time to review the ballistics expert’s findings. Only the first and third complaints were presented to the trial court. Accordingly, the second complaint—that the State was given an unfair advantage—is not preserved for our review and we do not address it. See TEX. R. APP. P. 33.1(a) (providing that a timely, specific objection and a ruling by the trial court are necessary to preserve a complaint for appellate review); Pena, 285 S.W.3d at 464 (holding the appellant failed to preserve his complaint for appellate review because he “was obligated to put the trial judge on notice of the specific legal theory that he intended to advocate” but failed to do so). As to the complaint concerning an undue delay in the trial, the record shows that the trial court granted the motion to withdraw the shell casings on Wednesday, January 29, 2020, at the end of the day. When trial resumed the next morning, on Thursday, January 30, 2020, the defense finished presenting its case and rested. Immediately thereafter, the State called its ballistics expert to testify about the withdrawn shell casings, which the expert had already analyzed. The record establishes that the withdrawal of the shell casings caused no delay in the trial. As to the complaint that the defense had inadequate time to review the findings of the State’s ballistic expert, the record shows that after the State’s ballistics expert testified, the trial court asked the defense if it needed an expert. The defense asked for two and a half hours to determine if it needed a defense expert. The trial court granted the defense’s request, stating “[t]hat’s completely reasonable.” The trial court further stated if the defense decided that it needed an expert, it “would have all the rest of the day today, and depending on what [the expert] say[s], possibly all day tomorrow to look at it.” The record establishes that the defense had adequate time to review the findings made by the State’s ballistics expert. 04-20-00139-CR - 29 - We conclude the trial court did not abuse its discretion in overruling Collins’s objections to the State’s motion to withdraw the shell casings from evidence and the testimony of the State’s ballistics expert. We overrule Collins’s eighth point of error. INEFFECTIVE ASSISTANCE OF COUNSEL In his ninth point of error, Collins argues that he received ineffective assistance of counsel because defense counsel did not call an expert witness to rebut the testimony of the State’s ballistics expert. A person claiming ineffective assistance of counsel must prove, by a preponderance of the evidence, two components: (1) counsel’s performance was deficient, i.e., counsel’s performance fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced him, i.e., there is a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When evaluating counsel’s performance, courts indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable assistance and that the challenged action might be considered sound trial strategy. Ex parte Jimenez, 364 S.W.3d at 883. “The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel.” Id. “The Strickland test is judged by the ‘totality of the representation,’ not by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight.” Id. “Any allegation of 04-20-00139-CR - 30 - ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. Collins’s entire argument focuses on an isolated part of counsel’s representation, i.e., his decision not to present expert testimony to counter the testimony of the State’s ballistics expert. Generally, however, courts evaluate ineffective assistance of counsel claims based on the totality of the representation. See Ex parte Jimenez, 364 S.W.3d at 883. Furthermore, nothing rebuts the presumption that defense counsel’s decision was not part of a sound trial strategy. Collins does not direct us to any evidence showing that another ballistics expert would have refuted the testimony of the State’s ballistics expert. The record in this case does not affirmatively demonstrate that counsel’s performance fell below an objective standard of reasonableness.12 See Thompson, 9 S.W.3d at 813. Because Collins has not met his burden to prove, by a preponderance of the evidence, the first component of his ineffective assistance of counsel claim, the claim must fail. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Thompson, 9 S.W.3d at 813 (recognizing the failure to make the required showing on either element “defeats the ineffectiveness claim.”). We overrule Collins’s ninth point of error. ADMISSION OF PHOTOGRAPHS 12 Collins cites Hinton v. Alabama, 571 U.S. 263 (2014), to support his argument that defense counsel’s performance was deficient. However, Hinton is distinguishable. In Hinton, the United States Supreme Court held that defense counsel’s performance was deficient because he “fail[ed] to request additional funding in order to replace [a defense] expert he knew to be inadequate because [defense counsel] mistakenly believed that he had received all [the funding] he could get [to hire an expert] under [the] law.” Id. at 274. It further stated: “The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused [defense] counsel to employ an expert that he himself deemed inadequate.” Id. at 275. Here, by contrast, Collins’s claim is that defense counsel’s performance was deficient because he decided not to call a ballistics expert. 04-20-00139-CR - 31 - In his tenth point of error, Collins argues the trial court abused its discretion in admitting two photographs: (1) a photograph of Mirone’s child and Perez’s girlfriend sitting on Perez’s driveway after the shooting, and (2) a stock photograph of an AK-47. In his briefing, Collins characterizes the admission of this evidence as “fundamental error,” but the erroneous admission of evidence is not fundamental error, and a timely, specific objection is necessary to preserve any error for appeal. See Saldano v. State, 70 S.W.3d 873, 889–90 (Tex. Crim. App. 2002) (holding the complaint was not preserved for review on appeal because the appellant did not object to the admission of evidence at trial); see also TEX. R. EVID. 103(a)(1) (stating the party must timely object and state the specific ground for the objection to preserve a complaint about a ruling on the admission of evidence); TEX. R. APP. P. 33.1(a). The Texas Court of Criminal Appeals has “consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.” Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Here, the record shows that Collins did not object to the admission of the photographs. Thus, any alleged error in admitting this evidence is not preserved for our review. See Saldano, 70 S.W.3d at 889–90; TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a). We overrule Collins’s tenth point of error. ADMISSION OF SOCIAL MEDIA EVIDENCE In his eleventh point of error, Collins argues the trial court abused its discretion in allowing the State to cross-examine him about a social media message over his relevance and rule 403 objections. During his direct testimony, Collins claimed that he was unaware of the drug deal with Mirone until that night. During its cross-examination of Collins, the State wanted to show that Collins knew about the drug deal with Mirone days before it happened. At a hearing outside the 04-20-00139-CR - 32 - jury’s presence, the State asked the trial court if it could inquire about a social media message Collins had sent to Fuller five days before the shooting, on August 19, 2016. In the message, Collins said to Fuller: “Hit up that white boy.” The defense objected, claiming the evidence was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice. The trial court overruled these objections, and State was allowed to cross-examine Collins about the social media message. In front of the jury, the State asked Collins if five days before the drug deal with Mirone, he had sent a social media message to Fuller saying: “Hit up that white boy.” Collins admitted that he had sent the message to Fuller. On re-direct examination, Collins explained that he used the phrase “hit up” as slang for “contact” or “call.” We will assume, without deciding, that the trial court abused its discretion in overruling Collins’s objections. The erroneous admission of evidence is non-constitutional error. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); TEX. R. APP. P. 44.2(b). Non-constitutional errors are harmful, and therefore require reversal, only if they affect a substantial right of the defendant. Gonzalez, 544 S.W.3d at 373; TEX. R. APP. P. 44.2(b). This means that a nonconstitutional error is reversible only when it has a substantial and injurious effect in determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373. If we have a fair assurance that the error did not influence the jury, or had but a slight effect, we must disregard the error. Id. “In making this determination, we consider: (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 guilt; and (4) whether the State emphasized the complained of error.” Id. After reviewing the entire record, we have fair assurance that any error in admitting the social media message did not influence the jury or had but a slight effect. See id. The evidence of 04-20-00139-CR - 33 - the social media message was offered to contradict Collins’s claim that he was unaware of the drug deal with Mirone until the night that it happened. The message itself did not mention Mirone, and no other evidence was presented to show that Mirone was the person referred to in the message. Additionally, the social media message was never tied to any of the other evidence presented in this case. Our review of the record reveals that ample evidence was submitted to support the jury’s guilty verdict—the testimony of two eyewitnesses, Perez and Busby; the testimony of the investigating officers; the testimony of the medical examiner; the testimony of the ballistics expert; and evidence of an extraneous offense. Overall, the evidence of Collins’s guilt was substantial. Finally, the social media evidence was not emphasized; neither the State nor the defense mentioned it in closing arguments. We conclude that any error in admitting the complained-of evidence did not affect a substantial right and, therefore, must be disregarded. See TEX. R. APP. P. 44.2(b). We overrule Collins’s eleventh point of error. MOTION FOR NEW TRIAL In his twelfth point of error, Collins argues the trial court abused its discretion by allowing his motion for new trial to be overruled by operation of law without a hearing. In his fourth and fifth points of error, Collins raises complaints that he made in his motion for new trial. In his fourth point of error, Collins argues a juror’s statements demonstrated “an overt racial bias,” which deprived him of his right to a fair and impartial trial. In his fifth point of error, Collins argues a juror’s “pre-judgment of Collins” established implied jury bias, which deprived him of his right to a fair and impartial jury trial. Because Collins’s fourth and fifth points of error complain about matters raised in his motion for new trial, we address Collins’s fourth, fifth, and twelfth points of error together. A defendant may file a motion for new trial before, but no later than thirty days after, the date when the trial court imposes or suspends sentence in open court. TEX. R. APP. P. 21.4(a). A 04-20-00139-CR - 34 - defendant does not have an absolute right to a hearing on a motion for new trial. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A hearing on a motion for new trial is required only when the motion raises matters that are not determinable from the record. Id. Furthermore, the trial court must rule on a motion for new trial within seventy-five days after imposing or suspending sentence in open court. TEX. R. APP. P. 21.8(a). When a motion for new trial is not timely ruled on by written order, it is deemed denied when the seventy-five-day period expires. Id. 21.8(c). “A defendant is required to ‘present’ a motion for new trial to the trial court within ten days of filing it, unless the court, in its discretion, extends that time period.” Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009); TEX. R. APP. P. 21.6. Filing the motion for new trial—in and of itself—is not sufficient to show presentment. Stokes, 277 S.W.3d at 21. “The purpose of the presentment rule is to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it.” Id. (quotation marks omitted). “Presenting the motion for new trial and the request for a hearing is akin to objecting to the erroneous admission of evidence.” Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). “Absent a proper objection that alerts the trial court to the erroneous admission, the error has not been preserved for appellate review.” Id. “[A] reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it.” Id. “‘Presentment’ must be apparent from the record, and it may be shown by such proof as the judge’s signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date.” Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). While rule 21.6 does “not require a personal visit [to the trial court],” it “do[es] require some documentary evidence or notation that the trial [court] personally received a copy of the motion and could therefore decide whether to set a hearing or otherwise rule upon it.” Id. 04-20-00139-CR - 35 - “[W]ithout any showing that the trial [court] actually saw appellant’s motion for new trial, the [trial court] cannot be faulted for failing to conduct a hearing on that motion.” Id. A reviewing court does not reach the question of whether the trial court abused its discretion in failing to hold a hearing on a motion for new trial when no request for a hearing was presented to the trial court. Id. at 306. Here, the record is devoid of any proof that Collins timely presented his motion for new trial and his request for a hearing to the trial court. Collins was sentenced in open court on February 3, 2020. Collins’s motion for new trial was file-stamped March 4, 2020. In the prayer of the motion for new trial, Collins asked the trial court to “grant a hearing on this motion.” However, neither the original clerk’s record nor the supplemental clerk’s record shows that Collins presented the motion for new trial to the trial court within the required ten-day period, that is, on or before March 14, 2020. The motion itself contains no signature or notation by the trial court indicating that the trial court saw the motion. The docket sheet contains no entry showing that the motion for new trial was presented to the trial court. Because the record fails to demonstrate that Collins presented his motion for new trial and his request for a hearing to the trial court, any error is unpreserved. See Gardner, 306 S.W.3d at 305; Rozell, 176 S.W.3d at 230. Under these circumstances, we cannot determine if the trial court abused its discretion by not holding a hearing on Collins’s motion for new trial. See Gardner, 306 S.W.3d at 305; Rozell, 176 S.W.3d at 230. We overrule Collins’s twelfth, fourth, and fifth points of error. CUMULATIVE ERROR In his thirteenth point of error, Collins argues the cumulative effect of the previously complained-of errors denied him of his rights to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution. In his fourteenth point of error, Collins argues the 04-20-00139-CR - 36 - cumulative effect of the previously complained-of errors denied him of his right to due process of law under the Texas Constitution. “The cumulative error doctrine provides relief only when constitutional errors so fatally infect the trial that they violate the trial’s fundamental fairness.” Delacerda v. State, No. AP77,078, 2021 WL 2674501, at *17 (Tex. Crim. App. June 30, 2021) (quotation marks omitted) (citing Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (not designated for publication). Non-errors may not in their cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). We have considered all of the points of error presented by Collins and have not found any constitutional error affecting the trial of this case. Therefore, Collins is not entitled to relief under the cumulative error doctrine. See id. We overrule Collins’s thirteenth and fourteenth points of error

Outcome: The trial court’s judgment is affirmed

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