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Date: 07-04-2021
Case Style:
Charles Chaves v. The State of Texas
Case Number:
01-19-00524-CR
Judge: Julie Countiss
Court: Court of Appeals
For The
First District of Texas
Plaintiff's Attorney: Daniel C. McCrory
The Honorable Kim K Ogg
Bridget Woody Holloway
Defendant's Attorney:
Description:
Houston, Texas - Criminal defense attorney represented Charles Chaves with a Aggravated Assault charge.
The complainant, Brenda Vasquez, testified that she was previously in a
dating relationship with appellant and appellant is the father of her two children. The
complainant and appellant “share[d] a household” at one point, and the complainant
stated that she previously considered herself to be “common-law married” to
appellant. The complainant described appellant as “very controlling.”
The complainant and her children moved into the home of the complainant’s
sister, Claudia Benedix, and her sister’s husband, Trey Benedix, to “get away” from
appellant and “to get away from the abusive relationship.” Claudia’s home was in
Harris County, Texas.
On November 24, 2017, appellant and the complainant argued “through the
phone” and in text messages. Appellant cursed at the complainant and threatened to 3
kill her. Appellant told the complainant that he was coming to Claudia’s house
because he “wanted to talk.”
When appellant arrived at Claudia’s home, he left his car running and
approached the front door. The complainant told Trey to let appellant inside.
Appellant left the front door open and rushed inside toward the complainant, who
was in the dining room. Appellant told the complainant “to go outside,” but the
complainant refused to do so. Appellant argued. The complainant told appellant
that they could go talk in the complainant’s bedroom, but first appellant had to turn
off his car. When appellant went outside to turn off his car, Claudia told the
complainant that appellant had a firearm in his pocket. The complainant knew that
appellant carried a firearm.
The complainant and appellant went to the complainant’s bedroom, where
their two children were asleep. Appellant took out his firearm and pointed it at the
complainant’s forehead. He said, “[Y]ou think I’m fucking playing with you?” and
“I told you what I was going to do.” According to the complainant, appellant was
referencing a text message that he sent to her earlier that day saying that “he was
going to come and kill [her].”
The complainant fell to her knees on the floor. She was scared, feared that
she was in imminent harm, and thought that appellant would shoot her. The
complainant believed that her children and everyone in the home were in danger. 4
She yelled, and Claudia and Trey came into the bedroom. They said, “[W]hat’s
going on?” and appellant responded, “[S]he thinks she’s going to play with me.”
Claudia and Trey tried to calm appellant down.
While the complainant was on the floor, appellant slapped her across her face.2
Claudia and Trey told appellant to relax, to put the firearm down, and to leave.
Appellant refused to leave the home unless the complainant walked in front of him.
The complainant said, “[N]o, I’m not going to walk,” because she was scared that
appellant would shoot her in the back.
Eventually, appellant reached the front door of the home. As he went outside,
the complainant tried to close the door, but appellant grabbed her hair to pull her
outside with him. In the process, appellant pulled out portions of the complainant’s
hair.3
The complainant did not “want him to take” her and managed to force herself
back inside the house. Appellant told Claudia and Trey to give him the complainant
and their two children. The complainant said, “[N]o. Don’t let him take me. I don’t
want to go with him.” Trey told appellant to “go put [his] gun away,” and when
appellant left to do so, the complainant, Claudia, and Trey shut the front door and
2 The complainant stated that she had a bug bite on her ear that was swollen and when
appellant slapped her, it “popped.” Her cheek was swollen from being slapped. The
trial court admitted into evidence photographs taken of the complainant that
depicted her injuries on November 24, 2017.
3 The trial court admitted into evidence photographs of the portions of the
complainant’s hair that had been pulled out.5
ran to the hallway in the back of the home. Claudia called for emergency assistance.
The complainant did not go to the hospital that night.
Claudia testified that the complainant is her sister. Claudia lived in a home
on Golden Dale Court with her husband, Trey, their children, the complainant, and
the complainant’s two children. The complainant and her children came to live at
Claudia’s home in fall 2017 because the complainant “wanted to get away from”
appellant. Appellant used to be the complainant’s boyfriend, and the complainant
used to live with appellant.
On November 24, 2017, appellant had been “in touch with” the complainant
by telephone all day, and appellant told the complainant that he wanted to come to
the house and talk to her. Appellant arrived at Claudia’s house about 1:00 a.m. or
2:00 a.m., and Claudia saw that appellant was carrying a firearm. Claudia knew that
appellant carried a firearm.
When appellant came into the house, he told the complainant, “I want to talk
to you. . . . [L]et’s go in the room.” Appellant did not drag the complainant to the
complainant’s bedroom. The complainant’s children were asleep in the bedroom at
the time. As appellant and the complainant went into the bedroom, Claudia went
into her bedroom, where Trey was, and she told Trey that appellant had a firearm.
Claudia then heard the complainant screaming and crying. She also heard arguing.
Claudia opened the door to the complainant’s bedroom and saw the complainant on 6
the floor. Appellant had a firearm pointed at the complainant. Claudia thought
appellant wanted to kill the complainant and everyone in the home. Appellant
slapped the complainant and then pointed the firearm at Claudia and Trey. Appellant
wanted Claudia and Trey to walk out of the bedroom, but Claudia told appellant to
walk out first.
Appellant left the bedroom and walked down the hallway. He pulled the
complainant by her hair, “trying to get her out the [front] door” of the home. Claudia
did not let appellant pull the complainant out the front door. The complainant held
onto Claudia and said, “[P]lease, don’t let him take me out. He wants to kill me.
Don’t let him take me out.” Claudia and Trey also tried to get appellant to “put the
gun up.” When appellant was outside the home, they closed the front door and
locked it. Claudia, Trey, and the complainant went to the bedrooms and heard
appellant “sho[o]t the [front] door one time.” Claudia called for emergency
assistance after appellant left the house.
Claudia believed that appellant intended to hurt the complainant that night,
and Claudia felt threatened by appellant’s actions. Claudia noted that appellant
pulled out portions of the complainant’s hair. According to Claudia, the
complainant’s children did not wake up during the aggravated assault.
The trial court admitted into evidence an audio recording of Claudia’s
telephone call for emergency assistance. On the recording, Claudia states that 7
appellant was at her home “with a gun” and was “trying to kill all of [them].”
Claudia explains that appellant came into the home with a firearm, pointed the
firearm at “all of [them],” and hit the complainant.
Trey, the complainant’s brother-in-law, testified that he lived in a home on
Golden Dale Court with his wife, Claudia, their children, the complainant, and the
complainant’s two children. Trey knew that appellant carried a firearm.
On November 24, 2017, appellant came over to Trey’s house late at night.
When he arrived, he took the complainant to the complainant’s bedroom, and they
“started hollering back and forth.” As Trey stood outside his bedroom’s door, he
heard commotion, arguing, and yelling in the complainant’s bedroom. He heard the
complainant scream. Claudia, who was with Trey, opened the door to the
complainant’s bedroom as Trey stood behind her. Appellant “had [the complainant]
on the ground [and was] waving a gun.” He then pointed the firearm back and
forth—first pointing the firearm at the complainant and then pointing the firearm at
Claudia and Trey. According to Trey, appellant “point[ed] the gun right at [him and
Claudia] and back at [the complainant] and [appellant] had [the complainant’s] head
down on the ground.” Claudia and Trey tried to calm down appellant because he
was “heated.” By talking to appellant, they “got [appellant] to step outside [the
house] so he could put the gun away.” When appellant was outside the home, Trey 8
slammed the front door closed. After the front door was closed, appellant “shot [the]
front door.”
Trey noted that when appellant pointed the firearm at him and Claudia, Trey
felt threatened, and he was afraid that appellant might discharge his firearm.
Harris County Constable’s Office (“HCCO”), Precinct 5, Sergeant J.
Hutchens testified that, while working on November 24, 2017, he responded to a
“family assault call” at a home on Golden Dale Court in Harris County, Texas. Upon
arrival, Hutchens met with the complainant, who was distraught. The complainant
had minor swelling on the right side of her cheek, a cut on her ear, and “spots where
her hair had been pulled out.”
4
Hutchens stated that the complainant’s injuries were
consistent with an assault having taken place. Hutchens noted that there were no
signs of forced entry at the front door of the home, and appellant was no longer at
the house when Hutchens arrived. Hutchens testified that a firearm is a deadly
weapon and could cause bodily harm.
HCCO, Precinct 5, Deputy S. Pham testified for the defense, stating that on
November 24, 2017, he went to the home on Golden Dale Court with Sergeant
Hutchens. Pham spoke to Claudia, who told him that appellant had fired a firearm
at the house that night. Law enforcement officers did not “locate a gunshot around
4 Sergeant Hutchens testified that the photographs of the complainant from November
24, 2017, which the trial court admitted into evidence, depicted the complainant’s
injuries that night.9
the house.” All the witnesses reported that appellant had put a firearm to the
complainant’s head.
Mistrial
In his first issue, appellant argues that the trial court erred in denying his
motion for mistrial because “a non-stricken venire member [was] not . . . properly
seated on the jury” in violation of Texas Code of Criminal Procedure article 35.26(a).
A mistrial is a device used to halt trial court proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and futile.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); see also Wood v. State,
18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (“Mistrial is a remedy appropriate for
a narrow class of highly prejudicial and incurable errors[.]”). We review a trial
court’s denial of a mistrial for an abuse of discretion. Ladd, 3 S.W.3d at 567;
Guzman v. State, 591 S.W.3d 713, 725 (Tex. App.—Houston [1st Dist.] 2019, no
pet.). Statutory interpretation presents a question of law that we review de novo.
See Bays v. State, 396 S.W.3d 580, 584 (Tex. Crim. App. 2013).
A criminal defendant is entitled to a trial by a fair and impartial jury. See U.S.
CONST. amend. VI, XIV; TEX. CONST. art. I, §§ 10, 15; TEX. CONST. art. V, § 10.
The right to trial by jury encompasses a right to have the jury selected in substantial
compliance with the applicable procedural statutes and rules. Heflin v. Wilson, 297
S.W.2d 864, 866 (Tex. App.—Beaumont 1956, writ ref’d); see also Arnold v. State, 10
No. 05-04-01522-CR, 2006 WL 40744, at *5 (Tex. App.—Dallas Jan. 9, 2006, pet.
ref’d) (not designated for publication). The Texas Constitution generally requires
that a district court jury consist of twelve members. See TEX. CONST. art. V, § 13;
see also TEX. CODE CRIM. PROC. ANN. arts. 33.01(a), 36.29; TEX. GOV’T CODE ANN.
§ 62.201; Hatch v. State, 958 S.W.2d 813, 815–16 (Tex. Crim. App. 1997) (noting
defendant may waive requirement that no fewer than twelve jurors can return verdict
in non-capital felony case); Adams v State, 243 S.W. 474, 265–66 (Tex. Crim. App.
1921).
Procedurally, the first twelve names on the jury list that have not been struck5
by the parties constitute the jury. See TEX. CODE CRIM. PROC. ANN. § 35.26(a); see
also Miller v. State, 623 S.W.2d 491, 494 (Tex. App.—Beaumont 1981) (“The[]
unstricken names constituted the jury . . . .”), aff’d, 692 S.W.2d 88 (Tex. Crim. App.
1985). Texas Code of Criminal Procedure article 35.26(a) states:
When the parties have made or declined to make their peremptory
challenges, they shall deliver their lists to the clerk. Except as provided
in [s]ubsection (b) of this section, the clerk shall, if the case be in the
district court, call off the first twelve names on the lists that have not
been stricken. . . . Those whose names are called shall be the jury.
5 See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 35.14 (peremptory challenge), 35.25
(making peremptory challenge); Pierson v. State, 614 S.W.2d 102, 107 (Tex. Crim.
App. 1980) (noting in non-capital cases parties exercise their peremptory challenges
after having conducted voir dire examination of jury panel); see also TEX. CODE
CRIM. PROC. ANN. art. 35.16 (reasons for challenge for cause).11
TEX. CODE CRIM. PROC. ANN. art. 35.26(a) (emphasis added). A violation of article
35.26 does not per se constitute reversible error. See Griffin v. State, 481 S.W.2d
838, 840 (Tex. Crim. App. 1972); Brossette v. State, 885 S.W.2d 841, 842 (Tex.
App.—Dallas 1994, pet. ref’d); see also Jones v. State, 982 S.W.2d 386, 391 (Tex.
Crim. App. 1998) (“[T]he constitutional right to trial by an impartial jury is not
violated by every error in the selection of a jury.”). In interpreting article 35.26(a),
we are to consider the spirit and intent of the article under the facts of the case. See
Griffin, 481 S.W.2d at 840; Brossette, 885 S.W.2d at 842–43; see also Tillman v.
State, No. 14-98-01233-CR, 2001 WL 543666, at *3–4 (Tex. App.—Houston [14th
Dist.] May 24, 2001, pet. ref’d) (not designated for publication) (rejecting State’s
reliance on “mandatory language of the statute” and noting “interpretations of article
35.26 have looked to the statute’s spirit and intent rather than the mandatory nature
of its language”). A trial court has the authority to excuse jurors for a proper basis
at any point up to the time the jury is sworn in as a whole and empaneled. Brossette,
885 S.W.2d at 843.
Sixty-five prospective jurors made up the venire panel in this case. First, the
trial court conducted a preliminary voir dire examination of the venire panel. The
attorneys for the State and appellant then took turns addressing the panel. At the end
of voir dire, eighteen venire members were “excused by agreement” between the 12
State and appellant, and forty-seven prospective jurors remained on the venire panel
from which the jury was selected.
The State and appellant both exercised their allotted peremptory strikes.
6
The
trial court proceeded to call the names of the purported first twelve persons who
were not struck to make up the jury. See TEX. CODE CRIM. PROC. ANN. art. 35.26(a).
Those twelve people included juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35,
41, and 45. Juror 50 was called as the alternate juror. The trial court asked if there
were “[a]ny objection[s] to the jury,” and the State and appellant both responded that
there were no objections. The trial court excused the rest of the venire panel, but it
did not swear in the jury.
The next day, before swearing in the jury, the trial court informed the parties
that there had been a “clerical error with regard[] to the [juror] strike list that was
submitted [by] the clerk.” The court held a hearing outside the presence of the
unsworn jury, at which the trial court clerk testified. The clerk explained that in
determining which twelve persons would sit on the jury, she reviewed the strike lists
that showed which prospective jurors had been struck by the State and appellant or
by agreement of the parties. She then tried to “choose [the] first 12” names who had
6 The State and appellant each used their ten peremptory challenges on the venire
members that would potentially comprise the main jury panel. The trial court also
gave the State and appellant one additional peremptory challenge to use on the
prospective alternate jurors, which they did.13
not been struck. But when she was reviewing the State’s and appellant’s strike lists,
she “overlooked . . . one person,” juror number 39, who had not been struck by either
the State or appellant or by agreement of the parties. It was an inadvertent mistake
and not intentional or malicious on the part of the clerk. According to the clerk,
based on the strike lists, the first twelve persons who were not struck included juror
numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 39, and 41. But because the clerk
overlooked juror number 39 in compiling the list of “first twelve names,”
7
the jurors
called to be on the jury were juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 41,
and 45. The clerk noted that neither the State nor appellant had struck juror number
45, and the parties’ strike lists in the record reflect the same.
After the clerk’s testimony, appellant objected to the composition of the jury,
presumably because juror number 45 had been seated on the jury rather than juror
number 39. Appellant argued that because of the “clerical error,” the clerk had not
seated the first twelve eligible persons on the jury list in violation of Texas Code of
Criminal Procedure article 35.26(a). Appellant requested a mistrial, which the trial
court denied. The trial court then swore in the jury, which included juror number
45.
In Bagwell v. State, our sister appellate court considered a defendant’s
argument that the trial court erred in denying his motion for mistrial because the first
7 See TEX. CODE CRIM. PROC. ANN. art. 35.26(a).14
twelve potential jurors who were not challenged by the parties were not seated on
the jury in violation of Texas Code of Criminal Procedure article 35.26(a). 657
S.W.2d 526, 526–27 (Tex. App.—Corpus Christi–Edinburg 1983, pet. ref’d). There,
the trial court deputy clerk “made an error in preparing the jury chosen list in that
she had inadvertently left out Juror No. 25,” making juror number 35 the twelfth
juror seated on the jury. Id. at 527. Juror number 25 had not been struck by either
party, and she had not been excused by the trial court. Id. At an evidentiary hearing
outside the presence of the jury, the deputy clerk testified that she made a mistake in
preparing the “jury chosen list,” and the parties stipulated that juror number 25
should have been seated on the jury. Id. The defendant asserted, on appeal, that the
trial court erred in denying his motion for mistrial based on a violation of article
35.26(a). The court of appeals, however, disagreed, holding that the spirit and intent
of article 35.26(a) had not been violated. Id. Thus, the appellate court overruled the
defendant’s complaint that the trial court erred in denying his motion for mistrial.
Id.
Here, appellant’s argument rests on the portion of article 35.26(a) which
provides that “the clerk shall, if the case be in the district court, call off the first
twelve names on the lists that have not been stricken. . . . Those whose names are 15
called shall be the jury.”
8
TEX. CODE CRIM. PROC. ANN. art. 35.26(a). Yet Texas
courts have rejected a party’s reliance on the purported “mandatory language” of
article 35.26(a). See, e.g., Griffin, 481 S.W.2d at 840; Tillman, 2001 WL 543666,
at *3–4 (rejecting State’s reliance on “mandatory language of the statute” and noting
that “no cases” supported State’s interpretation); Brossette, 885 S.W.2d at 842–43
(rejecting defendant’s assertion that language of article 35.26(a) did not “provide the
trial court with any discretion as to the jury’s composition after peremptory
challenges [were] made”); see also Wheeler v. State, 212 S.W.2d 169, 222 (Tex.
Crim. App. 1948) (noting Texas Court of Criminal Appeals has “held that the many
statutes relative to the method and manner of the formation of a jury in a capital
felony case are but procedural and are mainly directory and not mandatory”); cf.
Sanders v. State, 688 S.W.2d 676, 678 (Tex. App.—Dallas 1985, pet. ref’d)
(although Texas Code of Criminal Procedure article 36.01(3) provides that “[t]he
State’s attorney shall state to the jury the nature of the accusation and the facts which
are expected to be proved by the State in support thereof,” holding language of
8 Appellant, in his brief, attempts to focus on the “spirit and intent” of Texas Code of
Criminal Procedure article 35.26(a) by asserting that “[t]he spirit and intent of the
statute is that the first twelve non-stricken jurors shall be the factfinders of a case.”
Yet, this argument does not look at the “spirit and intent” of article 35.26(a). It
relies solely on the purported mandatory language of the statute. Cf. Brossette v.
State, 885 S.W.2d 841, 842–43 (Tex. App.—Dallas 1994, pet. ref’d). (defendant
asserted language of article 35.26(a) did not “provide the trial court with any
discretion as to the jury’s composition after peremptory challenges [were] made”).16
statute was not mandatory and trial court did not err in not requiring State to make
opening statement (internal quotations omitted) (emphasis added)). Rather, we are
to look at article’s 35.26(a) spirit and intent in determining whether there has been a
violation of the article. See, e.g., Griffin, 481 S.W.2d at 840 (“We simply . . . do not
find a violation of the spirit and intent of [article 35.26] under the unique factual
situation of this case.”); Tillman, 2001 WL 543666, at *3–4 (noting “[t]he spirit and
intent of the statute has been preferred over the mandatory language in a number of
cases”); Brossette, 885 S.W.2d at 842–43.
Here, the trial court clerk testified that, in determining which twelve persons
would sit on the jury, she reviewed the parties’ strike lists that showed which
prospective jurors had been struck by either the State or appellant or by agreement
of the parties. She then tried to “choose [the] first 12” names of those persons who
had not been struck. While reviewing the State’s and appellant’s strike lists, she
“overlooked . . . one person,” juror number 39, who had not been struck by the State
or by appellant or by agreement of the parties. It was an inadvertent mistake. Based
on the parties’strike lists, the first twelve persons who were not struck included juror
numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 39, and 41. But because the clerk
overlooked juror number 39 in compiling the list of the “first twelve names,”
9
the
prospective jurors called to sit on the jury were juror numbers 10, 20, 21, 23, 25, 26,
9 See TEX. CODE CRIM. PROC. ANN. art. 35.26(a).17
27, 31, 34, 35, 41, and 45. Neither the State nor appellant had struck juror number
45 on their strike lists. Although appellant objected and requested a mistrial because
of the “clerical error,” the trial court denied the motion for mistrial.
Like the court of appeals in Bagwell, we conclude that there has not been a
violation of the spirit and intent of Texas Code of Criminal Procedure article
35.26(a) in the jury selection process in this case. See Bagwell, 657 S.W.2d at 527;
see also Griffin, 481 S.W.2d at 840; Tillman, 2001 WL 543666, at *3–4; Brossette,
885 S.W.2d at 842–43 (noting appellate court’s decision was in keeping with spirit
and intent of article 35.26(a)).
Still yet, even if the jury selection process here violated article 35.26(a),
appellant must show sufficient harm to warrant reversal. See Cooks v. State, 844
S.W.2d 697, 725–27 (Tex. Crim. App. 1992); Griffin, S.W.2d at 840 (violation of
article 35.26 does not per se constitute reversible error); Brossette, 885 S.W.2d at
842–43; see also Lewis v. State, 815 S.W.2d 560, 563 (Tex. Crim. App. 1991);
Jackson v. State, 745 S.W.2d 4, 17 (Tex. Crim. App. 1988) (defendant failed to
demonstrate harm by showing he was forced to accept objectionable juror as result
of trial court’s failure to comply with excuse provisions of Texas Code of Criminal
Procedure chapter 35); Neal v. State, 689 S.W.2d 420, 424–25 (Tex. Crim. App.
1984); Arnold, 2006 WL 40744, at *5; Smith v. State, 149 S.W.3d 667, 673 (Tex.
App.—Austin 2004, pet. ref’d) (“The court of criminal appeals has consistently18
required a showing of harm or prejudice for reversal in cases involving jury-selection
procedures.”); Richardson v. State, 981 S.W.2d 453, 456 n.3 (Tex. App.—El Paso
1998, pet. ref’d); Gentry v. State, 881 S.W.2d 35, 43 (Tex. App.—Dallas 1994, pet.
ref’d) (“An appellant must show harm to obtain reversal based on the trial court’s
failure to comply with statutory requirements for selection of a jury panel.”).
Appellant does not assert, nor does he show, that he was forced to take an
objectionable juror or that the jury that heard the case was not fair and impartial.
10
See Griffin, 481 S.W.2d at 840; Arnold, 2006 WL 40744, at *5; see also Jackson,
745 S.W.2d at 17. Appellant had a pool of forty-seven venire members from which
to select a jury. Even more specifically, the trial court informed the State and
appellant that given the number of prospective jurors that had been excused by
agreement and the number of peremptory strikes allotted to the State and appellant,
the main twelve-member jury panel would be selected from those persons still
eligible from juror numbers 1 through 47.
11
Appellant knew when he made his
peremptory strikes that juror number 45 was one of the prospective jurors that could
be placed on the jury and appellant did not strike juror number 45, who was
10 An objectionable juror is one against whom such cause for challenge exists as would
likely affect his competency or his impartiality in the trial. See Cooks v. State, 844
S.W.2d 697, 727 (Tex. Crim. App. 1992); Brossette, 885 S.W.2d at 843 n.2.
11 The trial court also informed the State and appellant that the alternate juror would
be selected from either juror numbers 48, 49, or 50. The trial court gave each party
an additional peremptory strike to use for the potential alternate jurors.19
ultimately seated on the jury. See Griffin, 481 S.W.2d at 840 (“There is no showing
that [defendant] was forced to proceed with an unacceptable juror.”); Brossette, 885
S.W.2d at 843 (defendant knew when he made strike that any one of thirty-one
individuals could be placed on jury and he chose not to strike two jurors ultimately
seated; it was reasonable to conclude that those two jurors were acceptable to
defendant). We conclude that appellant has not shown sufficient harm to warrant
reversal.
We hold that the trial court did not err in denying appellant’s motion for
mistrial.
We overrule appellant’s first issue.
Lesser-Included Offense
In his second issue, appellant argues that the trial court erred in failing to
instruct the jury on the lesser-included misdemeanor offense of deadly conduct12
because “[i]n light of the facts and evidence presented at . . . trial, a rational juror
could have found that [a]ppellant was guilty only of reckless conduct and convicted
him of the lesser offense.”
A trial court has an absolute duty to prepare a jury charge that accurately sets
out the law applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14;
Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim. App. 2008); see also Vasquez
12 See TEX. PENAL CODE ANN. § 22.05(a), (e).20
v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (“The purpose of the trial
[court’s] jury charge is to instruct the jurors on all of the law that is applicable to the
case.”).
We review a trial court’s refusal to include a lesser-included offense
instruction in its charge to the jury for an abuse of discretion. See Threadgill v. State,
146 S.W.3d 654, 666 (Tex. Crim. App. 2004); Steele v. State, 490 S.W.3d 117, 126
(Tex. App.—Houston [1st Dist.] 2016, no pet.). Whether a defendant is entitled to
a jury instruction on a lesser-included offense involves a two-step analysis. Safian
v. State, 543 S.W.3d 216, 219–20 (Tex. Crim. App. 2018); Moore v. State, 969
S.W.2d 4, 8 (Tex. Crim. App. 1998); Steele, 490 S.W.3d at 127. Under the first step,
we must decide whether the offense is a lesser-included offense of the offense
charged, as defined in Texas Code of Criminal Procedure article 37.09. See TEX.
CODE CRIM. PROC. ANN. art. 37.09; Moore, 969 S.W.2d at 8 (“The first step is to
apply the relevant definition to the offense charged and the offense in question.”);
Steele, 490 S.W.3d at 127. This is a question of law that does not depend on the
evidence produced at trial. Safian, 543 S.W.3d at 219–20; Steele, 490 S.W.3d at
127. An offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;21
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09.
Under the second step, we must evaluate the evidence to determine whether
there is some evidence that would permit a rational jury to find that the defendant, if
he is guilty, is guilty only of the lesser-included offense. Safian, 543 S.W.3d at 220;
Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire
record. Moore, 969 S.W.2d at 8. And there must be some evidence from which a
rational jury could acquit the defendant of the greater offense while convicting him
of the lesser-included offense. Id. The court may not consider whether the evidence
is credible, controverted, or in conflict with other evidence. Bullock v. State, 509
S.W.3d 921, 925 (Tex. Crim. App. 2016); Moore, 969 S.W.2d at 8. Any evidence
that the defendant is guilty only of the lesser-included offense is sufficient to entitle
the defendant to a jury charge on the lesser-included offense. Moore, 969 S.W.2d at
8.
Appellant first argues that he was entitled to a jury instruction on the
lesser-included misdemeanor offense of deadly conduct13 because “when an
13 See TEX. PENAL CODE ANN. § 22.05(a) (“A person commits an offense if he
recklessly engages in conduct that places another in imminent danger of serious 22
indictment charges a defendant with intentionally or knowingly threatening bodily
injury to a complainant with a deadly weapon, misdemeanor deadly conduct is
established by proof of the same or less than all the facts to establish aggravated
assault.” The State concedes, in its briefing, that the first-step in the analysis is
satisfied here, stating that the misdemeanor offense of “[d]eadly conduct is a
lesser-included offense of aggravated assault by threat when a deadly weapon is used
or exhibited.”
14
See Safian, 543 S.W.3d at 217, 219–24 (holding, as matter of law,
misdemeanor offense of deadly conduct “is a lesser-included offense of aggravated
assault by threat when it is alleged that the defendant used a deadly weapon during
the commission of the offense”); Bell v. State, 693 S.W.2d 434, 438–39 (Tex. Crim.
App. 1985). Thus, we now must determine whether there is some evidence that
appellant, if guilty, is guilty only of the lesser-included misdemeanor offense of
deadly conduct.
Appellant argues that “[t]here is some evidence that [he] is only guilty of [the
lesser-included misdemeanor offense of] deadly conduct” because there is evidence
bodily injury.”), (e) (“An offense under [s]ubsection (a) is a [c]lass A
misdemeanor.”).
14 Here, the indictment alleged that appellant, on or about November 24, 2017, “did
then and there unlawfully, intentionally and knowingly threaten [the complainant],
a member of [appellant’s] family, a member of [appellant’s] household and a person
with whom [appellant] had a dating relationship, . . . with imminent bodily injury
by using and exhibiting a deadly weapon, namely, a firearm.” See TEX. PENAL
CODE ANN. § 22.02(a)(2); see also id. § 22.01(a)(2).23
that “[a]ppellant was guilty of acting recklessly instead of intentionally or
knowingly.”
A person acts intentionally, or with intent, “with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a). 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,” and 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.” Id. § 6.03(b). A person acts recklessly
“with respect to circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist or the result will occur.” Id. § 6.03(c). To be “reckless,”
a person would have to be aware that his conduct created a substantial and
unjustifiable risk, and he would have to consciously disregard that risk. See id.; see
also Duncan v. State, No. 04-10-00870-CR, 2011 WL 3918888, at *2 (Tex. App.—
El Paso Sept. 7, 2011, pet. ref’d) (mem. op., not designated for publication).
Here, the evidence shows that appellant acted intentionally or knowingly, and
not recklessly. On November 24, 2017, appellant threatened to kill the complainant
by telephone and text message. Later that day, appellant came to the home, where 24
the complainant was living, carrying a firearm. When he and the complainant went
into the complainant’s bedroom, he took out his firearm and pointed it at the
complainant’s forehead. Cf. Love v. State, No. 12-18-00239-CR, 2019 WL 3940800,
at *5–6 (Tex. App.—Tyler Aug. 21, 2019, pet. ref’d) (mem. op., not designated for
publication) (defendant not entitled to instruction on deadly conduct offense where
testimony demonstrated he acted intentionally and knowingly by pointing firearm at
complainant); Bueno v. State, No. 05-18-00940-CR, 2019 WL 3212151, at *1, *3–
4 (Tex. App.—Dallas July 9, 2019, no pet.) (mem. op., not designated for
publication) (no evidence from which jury could rationally conclude defendant acted
recklessly rather than intentionally when complainant testified defendant pointed
firearm at her); Benavides v. State, No. 08-07-00193-CR, 2009 WL 3031175, at *1
(Tex. App.—El Paso Sept. 23, 2009, pet. ref’d) (mem. op., not designated for
publication). Appellant said, “[Y]ou think I’m fucking playing with you?” and “I
told you what I was going to do,” referring to a text message he sent to the
complainant earlier that day saying that “he was going to come and kill [her].” See
Timms v. State, No. 05-13-00559-CR, 2014 WL 2447709, at *1–3 (Tex. App.—
Dallas May 30, 2014, pet. ref’d) (mem. op., not designated for publication)
(testimony of defendant’s deliberate conduct with evidence defendant previously
threatened to stab complainant could not support “a rational conclusion that 25
[defendant’s] conduct could only have been reckless”). The complainant felt scared,
feared that she was in imminent harm, and thought that appellant would shoot her.
After the complainant’s sister and brother-in-law entered the complainant’s
bedroom, appellant told them, “[S]he thinks she’s going to play with me,” referring
to the complainant. While the complainant was on the floor of the bedroom,
appellant slapped her across the face. Later, appellant tried to pull the complainant
out the front door of the house with him, pulling out portions of the complainant’s
hair in the process. After the complainant, her sister, and her brother-in-law
managed to get appellant out of the house, he fired a shot at the front door.
Even in cases where the evidence is weak or contradicted, there must still be
some evidence directly germane to the lesser-included offense for the fact finder to
consider before an instruction on a lesser-included offense is warranted. Sweed v.
State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); Hamilton v. State, 563 S.W.3d
442, 446 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). Here, the evidence must
establish that the lesser-included misdemeanor offense of deadly conduct was a
valid, rational alternative to the charged offense of aggravated assault. Rice v. State,
333 S.W.3d 140, 145 (Tex. Crim. App. 2011). “Meeting this threshold requires more
than mere speculation—it requires affirmative evidence that both raises the
lesser-included offense and rebuts or negates an element of the greater offense.”
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). 26
Because there was no evidence from which a rational juror could infer that
appellant’s actions were merely reckless,15 rather than knowing or intentional,
appellant was not entitled to an instruction on the lesser-included misdemeanor
offense of deadly conduct. See Whitfield v. State, 408 S.W.3d 709, 718–19 (Tex.
App.—Eastland 2013, pet. ref’d). We hold that the trial court did not err in not
instructing the jury on the lesser-included misdemeanor offense of deadly conduct.
See Dixon v. State, 358 S.W.3d 250, 258 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d) (“We decline to hold that the trial court abused its discretion . . . when the
testimony as a whole does not negate intent . . . .”)
We overrule appellant’s second issue.
Sufficiency of Evidence
In his fourth issue, appellant argues that the evidence is insufficient to support
his conviction for aggravated assault of a family member because the State “failed
to prove beyond a reasonable doubt that [a]ppellant intentionally or knowingly
15 In an attempt to support his argument, appellant points to two statements that Trey,
the complainant’s brother-in-law, made during his testimony. But appellant takes
these two statements out of context. Viewed in context, they do not establish that
appellant acted recklessly rather than intentionally or knowingly. See, e.g., Bueno
v. State, No. No. 05-18-00940-CR, 2019 WL 3212151, at *4 (Tex. App.—Dallas
July 9, 2019, no pet.) (mem. op., not designated for publication); see also Ramos v.
State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (statements must be viewed in
context of entire record); Dixon v. State, 358 S.W.3d 250, 258 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (“The entire evidence must be examined in context.”).27
threatened [the complainant] with a firearm on November 24, 2017” and “the great
weight of the evidence was not credible.”
To assert an issue on appeal, an appellant’s brief must contain “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). An appellant waives an issue on appeal
if he does not adequately brief that issue by not providing supporting arguments,
substantive analysis, and appropriate citations to authorities and to the record. See
id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v. State,
253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State, 30 S.W.3d 384,
393 (Tex. Crim. App. 2000) (defendant inadequately briefed complaint where he
neglected to present argument with citation to appropriate authority); see also Ray
v. State, 176 S.W.3d 544, 553 n.7 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
As the Texas Court of Criminal Appeals has emphasized, an appellate court
has no obligation to construct and compose issues, facts, and arguments with
appropriate citations to authorities and the record for the appellant. See Wolfe v.
State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at 673. A
brief that fails to apply the law to the facts does not comply with Texas Rule of
Appellate Procedure 38.1 and presents nothing for our review. See Swearingen v.
State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). These rules apply to a
defendant’s complaint that the evidence is insufficient to support his conviction. See 28
McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Taylor v. State, 558
S.W.3d 215, 218–19 (Tex. App.—Texarkana 2018, no pet.); see also Barrera v.
State, No. 01-03-00102-CR, 2004 WL 637954, at *2–3 (Tex. App.—Houston [1st
Dist.] Apr. 1, 2004, no pet.) (mem. op., not designated for publication).
Appellant, in his brief, provided this Court with no substantive argument,
analysis, or citation to appropriate authorities or appropriate portions of the
record.
16
See Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013)
(Cochran, J., concurring in refusal of petition for discretionary review) (“Failure to
provide substantive legal analysis—to apply the law to the facts—waives the point
of error on appeal. If the appealing party fails to meet its burden of adequately
discussing its points of error, this Court will not do so on its behalf.” (internal
citations omitted)); Swearingen, 101 S.W.3d at 100 (appellant who does not apply
law to facts fails to adequately brief point of error); Vuong v. State, 830 S.W.2d 929,
16 Appellant only cited to portions of the record from the punishment phase of trial,
which are irrelevant to his sufficiency-of-the-evidence complaint. See Barfield v.
State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001) (in bifurcated trial before jury
on plea of not guilty, “our consideration of the evidence is necessarily limited to
that evidence before the jury at the time it rendered its verdict of guilt” (internal
quotations omitted)); Munoz v. State, 853 S.W.2d 558, 560 n.3 (Tex. Crim. App.
1993) (“In order to determine the sufficiency of the evidence to support a
conviction, an appellate court is only authorized to view the punishment phase of
the trial to determine whether a defendant has, by admitting elements of the offense,
waived his right to complain of error during the guilt-innocence phase. Absent a
judicial confession by the defendant, evidence from the punishment phase of a trial
will not be considered in determining the sufficiency of the evidence to support a
conviction.” (emphasis added)).29
940 (Tex. Crim. App. 1992) (complaint inadequately briefed where appellant failed
to provide citation to any authority supporting his complaint); see also Taylor, 558
S.W.3d at 218–19 (appellant waived sufficiency complaint where brief failed to
include analysis, argument, or citation to record in support of contention evidence
insufficient to support conviction; appellant did not identify which elements of
offense were lacking evidentiary support and omitted any discussion about how
evidence adduced at trial failed to satisfy State’s burden of proof). Thus, we hold
that appellant has waived his complaint that the evidence is insufficient to support
his conviction.
Admission of Punishment Evidence
In his third issue, appellant argues that the trial court erred in admitting into
evidence, during the punishment phase of trial, State’s Exhibits 13 and 1417 because
the State failed to comply with Texas Code of Criminal Procedure article 39.14.18
17 State’s Exhibits 13 and 14 are audio recordings of telephone calls that the
complainant made to HCCO, Precinct 5, in December 2017, after the aggravated
assault on November 24, 2017. They concern subsequent behavior by appellant in
December 2017. Although the attorneys for the parties referred to these exhibits as
“911 calls,” this is not an accurate characterization of the exhibits.
18 See TEX. CODE CRIM. PROC. ANN. art. 39.14 (discovery). Appellant does not
specify in his brief the portion of Texas Code of Criminal Procedure article 39.14
with which he believes the State did not to comply. The gravamen of appellant’s
complaint appears to be that the State failed to comply with article 39.14’s
disclosure requirements. See id. art. 39.14(a); see also Glover v. State, 496 S.W.3d
812, 814–15 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). To the extent
appellant attempts to argue that the trial court erred in admitting State’s Exhibits 13
and 14 because they were not properly authenticated, he has not preserved that
complaint for appellate review. See TEX. R. APP. 33.1(a); Lovill v. State, 319 30
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion.19 Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d); see
also Schultze v. State, 177 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d) (“A trial court has broad discretion in determining the admissibility of
evidence presented at the punishment phase of trial.”).
Even were we to presume, for purposes of this opinion, that the trial court
erred in admitting State’s Exhibits 13 and 14 into evidence during the punishment
phase of trial, generally, the erroneous admission of evidence constitutes
non-constitutional error that is subject to a harm analysis. See Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49 S.W.3d 356, 365
(Tex. Crim. App. 2001); see also Paroline v. State, 532 S.W.3d 491, 502 (Tex.
App.—Texarkana 2017, no pet.) (“If the trial court errs in admitting
extraneous-offense evidence in the punishment phase, it is non-constitutional
error.”); Portis v. State, No. 10-15-00152-CR, 2016 WL 7478030, at *3 (Tex.
App.—Waco Dec. 28, 2016, no pet.) (mem. op., not designated for publication)
S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Griggs v. State, 213 S.W.3d 923, 927
(Tex. Crim. App. 2007).
19 Texas Code of Criminal Procedure article 37.07, which governs the admissibility of
evidence during the punishment phase of a non-capital trial, allows the trial court to
admit evidence of any matter relevant to sentencing. TEX. CODE CRIM. PROC. art.
37.07, § 3(a)(1); Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004).31
(assuming complained-of testimony erroneously admitted during punishment phase
and addressing whether defendant was harmed by admission of evidence); Roethel
v. State, 80 S.W.3d 276, 281–83 (Tex. App.—Austin 2002, no pet.) (considering
whether trial court’s admission of evidence during punishment phase of trial was
harmful). Non-constitutional error requires reversal only if it affects the substantial
rights of the accused. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91,
93–94 (Tex. Crim. App. 2011); Schultze v. State, 177 S.W.3d 26, 39 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d). “A substantial right is affected 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). We will not overturn
a criminal conviction for non-constitutional error if, after examining the record, we
have fair assurance that the error did not influence the jury, or had but a slight effect.
Barshaw, 342 S.W.3d at 93–94.
We review the entire record to determine the effect or influence of the
wrongfully admitted evidence on the jury’s decision. Id.; Motilla v. State, 78 S.W.3d
352, 355–56 (Tex. Crim. App. 2002). In assessing the likelihood that the jury’s
decision was improperly influenced, we consider the testimony and physical
evidence, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with other evidence in
the case. Barshaw, 342 S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of 32
evidence of the defendant’s guilt is also relevant in conducting the harm analysis.
Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); see also Motilla, 78
S.W.3d at 355–60; Kamen v. State, 305 S.W.3d 192, 197 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d). And we may consider closing statements and voir dire, jury
instructions, the State’s theory, any defensive theories, and whether the State
emphasized the alleged error. Motilla, 78 S.W.3d at 355–56; Paroline, 532 S.W.3d
at 502; Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d).
Here, appellant has failed to adequately brief his assertion that he was harmed
by the admission of State’s Exhibits 13 and 14. See Cardenas, 30 S.W.3d at 393
(holding defendant waived issue on appeal because he inadequately briefed issue by
failing to address whether alleged error was harmless); Wilson v. State, 473 S.W.3d
889, 900–01 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (“Here, we do not
address whether the trial court erred in admitting the complained-of . . . evidence
because even were we to conclude that the trial court erred in admitting such
evidence, appellant, in his brief, does not argue that he was harmed by its
admission.”); see also Alohaneke v. State, No. 01-18-00102-CR, 2019 WL 6314899,
at *7–8 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019, pet. ref’d) (mem. op., not
designated for publication) (defendant waived complaint trial court erred in
admitting exhibits where brief contained no substantive analysis or citation to
authorities to show that he was harmed by purported erroneous admission).33
As noted above, to assert an issue on appeal, an appellant’s brief must contain
“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). An appellant waives an
issue on appeal if he does not adequately brief that issue by not providing supporting
arguments, substantive analysis, and appropriate citations to authorities and to the
record. See id.; Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Cardenas,
30 S.W.3d at 393 (defendant inadequately briefed complaint where he neglected to
present argument with citation to appropriate authority); Wilson, 473 S.W.3d at 900–
01. A brief that fails to apply the law to the facts does not comply with Texas Rule
of Appellate Procedure 38.1 and presents nothing for our review. See Swearingen,
101 S.W.3d at 100.
Although appellant argues that the trial court erred in admitting State’s
Exhibits 13 and 14 into evidence during the punishment phase of trial, in his brief,
appellant provides only two conclusory sentences, without citation to authority,
asserting that he “suffered harm as a result of the trial court’s admission of” State’s
Exhibits 13 and 14 because “the recordings were on the jury’s mind while they
deliberated.” See King v. State, 17 S.W.3d 7, 23 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (“Conclusory arguments which cite no authority present nothing for
our review.”); see also Brown v. State, Nos. 01-18-00594-CR, 01-18-00595-CR,
2020 WL 4210630, at *4 (Tex. App.—Houston [1st Dist.] July 23, 2020, no pet.) 34
(mem. op., not designated for publication) (defendant waived appellate complaint
where brief contained single conclusory sentence without citation to appropriate
authority); Linney v. State, 401 S.W.3d 764, 783 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (“We need not decide th[e] issue . . . because [defendant’s]
conclusory statement that the cumulative harm of the trial court’s errors adversely
affected his substantial rights is insufficient to maintain his burden to adequately
brief the point of error.”). Appellant’s brief contains no argument, explanation,
substantive analysis, or citation to authorities to show that he was harmed by the trial
court’s purported erroneous admission of the State’s exhibits. See Wyatt v. State, 23
S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We will not make appellant’s arguments
for him . . . .”); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995)
(where appellant’s point of error inadequately briefed, appellant “presents nothing
for our review”).
We hold that appellant waived his complaint on appeal that the trial court
erred in admitting into evidence State’s Exhibits 13 and 14 during the punishment
phase of trial. See, e.g., Cardenas, 30 S.W.3d at 393 (holding issue inadequately
briefed where “appellant d[id] not address the question of whether the alleged
error . . . was harmless”); Alohaneke, 2019 WL 6314899, at *7–8 (defendant waived
complaint trial court erred in admitting exhibits where brief contained no substantive
analysis or citation to authorities to show that he was harmed by purported erroneous35
admission); Wilson, 473 S.W.3d at 900–01 (defendant waived complaint trial court
erred in admitting certain evidence where he failed to “identify[] the harm that he
suffered as a result of the admission of the complained-of evidence”).
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: