NUMBER 13-10-00242-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROMEO LOMAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

By four issues, appellant, Romeo Lomas, appeals his conviction for abuse of 

official capacity by misuse of government property, services, personnel, or any other 

thing of value belonging to the government, the use of which is valued at $20 or more 

but less than $500, a class B misdemeanor. See TEX. PENAL CODE ANN. § 39.02(a)(2), 
2

(c)(2).1 In his first and second issues, appellant challenges the sufficiency of the 

evidence to support his conviction. In his third issue, appellant contends that the trial 

court erred in permitting challenges to jurors on an improper basis. In his fourth issue, 

appellant argues that the trial court erred in improperly admitting evidence of alleged 

prior bad acts. As set forth below, we sustain appellant’s fourth issue, reverse the 

judgment of the trial court, and remand for further proceedings consistent with this 

opinion.

I. BACKGROUND

Appellant has been the County Commissioner representing Precinct Four in 

Kleberg County for approximately 30 years. On September 30, 2009, a Kleberg County 

grand jury indicted appellant for abuse of official capacity. See id. In relevant part, the 

indictment alleged as follows:

[O]n or about March 2, 2009, in Kleberg County, Texas, [appellant] did 

then and there with intent to obtain a benefit, intentionally or knowingly 

misuse government property, services, or personnel, to wit: Kleberg 

County, Texas, vehicles and employees, which had come into defendant’s 

custody or possession by virtue of the defendant’s office as a public 

servant, namely, a County Commissioner of Kleberg County, Texas, by 

using Kleberg County, Texas, vehicles and employees to assist in hauling 

debris away from defendant’s personal property and the value of said 

property, services, or personnel was $20.00 or more but less than 

$500.00; against the peace and dignity of the State.2

Appellant pleaded not guilty to the charged offense, and a jury trial commenced on April 

9, 2010.

 

1

 Section 39.02 was amended in 2009; however, the amendments became effective September 

1, 2009, after the date the offense at issue in this case was allegedly committed. See Act of May 2, 2009, 

81st Leg., R.S., ch. 82, 2009 TEX. SESS. LAW SERV. 127 (West) (current version at TEX. PENAL CODE ANN. 

§ 39.02 (West Supp. 2011)). Thus, the prior version of the statute applies to this case.

2

 Appellant was re-elected following his indictment.
3

In its case-in-chief, the State offered evidence to prove that on March 2, 2009, 

the date of the alleged offense, appellant was the elected County Commissioner for 

Precinct Four of Kleberg County, Texas. Appellant was also identified as the owner of 

certain real property located in Kleberg County, Texas. A number of witnesses testified 

that a barbershop had been located on the property. According to their testimony, the 

barbershop was demolished on March 2, 2009, the date of the alleged offense. The 

demolition work was performed by Eloy Saldana, who was not an employee of Kleberg 

County, Texas and who was not under the supervision of appellant in his capacity as 

the elected County Commissioner for Precinct Four of Kleberg County, Texas.

Subsequently, appellant directed two Kleberg County employees, Gus De Leon 

and Antonio Garcia, to take delivery of concrete “debris” from the premises and to 

deliver the concrete “debris” to the Precinct Four yard using trucks owned by Kleberg 

County.3 The employees performed the work on county time. The State also 

introduced into evidence the county timesheets for De Leon and Garcia for the relevant 

two-week pay period from February 26, 2009 through March 6, 2009, which included 

March 2, 2009, the date of the alleged offense. The timesheets were signed by De 

Leon and Garcia, and they were also signed by appellant, as their supervisor. The 

timesheets included the following statement, which the State offered as evidence of 

appellant’s guilt:

UNDER PENALTY OF PERJURY, I CERTIFY THAT THE ACTUAL 

PHYSICAL HOURS WORKED (APHW), AS REPORTED ABOVE WERE 

 

3

“‘Debris’ is defined as ‘an accumulation of loose detached fragments of rock’ and ‘the remains of 

something broken down or destroyed.’” Gutierrez v. Trevino, No. 04-99-00274-CV, 2001 Tex. App. 

LEXIS 1844, at *31 (Tex. App.—San Antonio Mar. 21, 2001, pet. denied) (mem. op.) (citing WEBSTER’S 

THIRD NEW INTERNATIONAL DICTIONARY, at 582). “The word, as defined, does not necessarily mean 

something damaging.” Id. It is a broad term. See id. We conclude that everything at issue in this case is 

“debris.”
4

PERFORMED BY ME FOR THE SOLE BENEFIT OF KLEBERG 

COUNTY AND NOT FOR THE BENEFIT OF ANY PERSON, PRIVATE 

BUSINESS, CORPORATION, OR OTHER.

Other evidence offered by the State included the testimony of Sam Fugate, the 

Mayor of Kingsville. According to Fugate, on the morning of March 2, 2009, he drove by 

appellant’s property and observed the following:

Well, they had demolished or demoed his barbershop which sits on the 

front of the lot, and there was a Precinct 4 truck that had backed in and 

they were loading it.

. . .

Well, it really surprised me to see that truck there so I stopped and 

watched, and they were - - there was a guy there with a backhoe and a 

front end loader. They had already mashed the house - - if you’ve ever 

seen one of these old houses or old buildings demoed what they do is 

they just tear them apart and then they scoop up the debris, and they were 

in the process of scooping up debris.

. . . 

From what I saw they had already mashed the building and they were 

picking up the building and putting it in the truck.

Subsequently, the State elicited the following testimony from Fugate:

[Q.]: And why did you think it was significant that there was this Precinct 

4 county truck parked on the private residence of the defendant’s?

[A.]: Well, I know [appellant] is a county commissioner and I know he’s 

in charge of that equipment, and it just surprised me that he had it 

in his front yard and he was loading that barbershop, using it for 

personal purpose.

On cross-examination, Fugate testified as follows:

[Q.]: All right. So all there was - - all you could see was a truck, the 

bulldozer, and I guess [appellant’s] house in the back?

[A.]: You could see the demoed house or the house that had been 

mashed, the truck in the front, and the backhoe in the back in front 

of his house.
5

[Q.]: And, so, all that was left to do is to pick up the debris and put it in

trucks and haul it off; is that correct?

[A.]: That’s correct.

The State also called Kleberg County Judge Pete de la Garza as a witness. He 

testified that he passed by appellant’s house on the day in question and described what 

he saw as follows:

[Q.]: Okay. And did you notice if anything was going on at that time?

[A.]: Well, I saw that he was demolishing a building and I saw a backhoe 

that was there. And I recognized the backhoe because I know who 

it belongs to, it belongs to Mr. Eloy Saldana, and Mr. Saldana has 

done work for me before so I paid no reasonable attention to it, I 

just went on and went to work. 

[Q.]: And, so when you - - was Mr. Saldana working when you passed 

by?

[A.]: No. There was nobody there that I saw. 

[Q.]: Just a backhoe? Just the backhoe was sitting on the - -

[A.]: Yes, just a backhoe.

[Q.]: And that backhoe was sitting on the private residence of the 

defendant?

[A.]: It was, yes, very close to the sidewalk, yes.

On cross-examination, the following exchange took place:

[Q.]: And what did you witness? What crime did you witness?

[A.]: The only thing I witnessed . . . was the backhoe there that belonged 

to Mr. Saldana and I took pictures of that backhoe and of that 

debris.

[Q.]: And that - -

[A.]: That is what I witnessed.
6

[Q.]: And that in and of itself is not a crime.

[A.]: No.

Another witness called by the State was Nelda Alvarez, County Commissioner 

for Precinct Two of Kleberg County, Texas, who gave the following testimony:

[Q.]: Now, you’re aware that we’re here on the allegation of county 

property being used, concrete being dumped, and I want to take 

you back to around March 2, 2009, probably after that date. Did 

you have a conversation with [appellant] concerning that ditch?

[A.]: Yes. We’ve always - - we had conversations several times on the 

ditch.

[Q.]: And what did that conversation consist of when you talked about 

that ditch?

[A.]: Okay. For me to remember exactly what the conversation, we had 

several conversations because we have erosion problems out there 

and he’s had - - in the past had to take dirt out there all the time 

and he would tell me, “I went over there and I took care of it,” you 

know, and “the guys went out there.” And usually when I call him 

on erosion problems, because we had another one past the bridge, 

there was another one where they had to replace the culvert and all 

that, and I remember that one very well because it was in the 

summer and I had to go and tell the people that they had to leave 

their homes because they would - - the men were going to be 

working at 8:00 o’clock and they would not be able to get in or out 

of their homes. So we’ve had several conversations on the ditch. 

. . .

[Q.]: And all of those conversations were prior to March 2, 2009, or 

after?

[A.]: Sir, I’ve had conversations all the time. I didn’t - - I didn’t document 

the dates.

On cross-examination, Alvarez testified as follows:

[Q.]: And, Ms. Alvarez, it’s not your testimony that [appellant] did not talk 

to you about concrete before March 2, 2009, it’s just that you don’t 

remember.
7

[A.]: Right.

The next witness called by the State was Eloy Saldana, who testified in relevant 

part as follows:

 [Q.]: There’s two different trucks, correct?

[A.]: Right.

[Q.]: Did you load both trucks?

[A.]: I remember I loaded the first truck. I don’t know about the second 

one. The first one I put about three or four pieces of concrete that’s 

on - -

[Q.]: And we’ll get there, hold on. Now, you loaded two different trucks, 

is that correct, two different Precinct 4 trucks?

[A.]: Well, I don’t remember the second truck. I remember the first one. 

I don’t know if I loaded that second truck.

[Q.]: Okay. So which one of these do you remember loading?

[A.]: The small dump.

[Q.]: This one right here?

[A.]: Yeah, this one.

[Q.]: And what does that say on the cab there, State’s exhibit 5?

[A.]: Kleberg County Precinct 4.

. . . 

[Q.]: Okay. Are . . . [Gus De Leon and Antonio Garcia] both Precinct 4 

employees?

[A.]: Yes.

[Q.]: And you know - - so you don’t know if they switched out one dump 

truck or drove different trucks, is that what you’re saying, or do you 

know?
8

[A.]: I just remember [Garcia’s] truck. I don’t remember that other one, 

that flat bed, that other one [De Leon].

[Q.]: Okay. But you also loaded a truck that [De Leon] was driving?

[A.]: I don’t remember. I know I loaded [Garcia’s].

[Q.]: Okay. Are you sure about that? Do you need a chance to refresh 

your memory?

[A.]: I don’t remember loading [De Leon’s] truck, you know.

[Q.]: You don’t remember loading [De Leon]?

[A.]: No.

. . . 

[Q.]: Did - - was there a - - you said just three pieces of concrete?

[A.]: No. There was about three pieces of sidewalk.

[Q.]: Of sidewalk concrete, okay. Anything else? Did you load anything 

else into [Garcia’s] truck?

[A.]: Just maybe a piece of lumber or I don’t know. 

[Q.]: Just like one piece, just a little bit?

[A.]: Not much. 

The next witness called by the State was De Leon, a Kleberg County employee 

working under appellant’s supervision in Precinct Four, who testified in relevant part as 

follows:

[Q.]: And what were the instructions [appellant gave you] at that time 

[March 2, 2009]?

[A.]: To pick up a dump truck and pick up some cement and haul it back 

to the yard.

[Q.]: And when you say dump truck you’re talking about the county 

dump truck?
9

[A.]: Yes.

[Q.]: And so did you in fact follow . . . [appellant’s] instructions?

[A.]: Yes.

. . . 

[Q.]: Okay. And what did you do at that point?

[A.]: I parked in the street and Mr. Saldana loaded up the concrete.

[Q.]: And how much concrete was loaded up?

[A.]: I hauled two loads that were about half a truck.

[Q.]: And when you say two loads, are you talking about two trips?

[A.]: Yeah, two trips.

. . . 

[Q.]: Okay. So where do you take that one load of concrete?

[A.]: To our yard.

[Q.]: And when you say the yard, is that the Precinct 4 yard?

[A.]: The Precinct 4 yard.

. . . 

[Q.]: And then what did you do after that, after the first load?

[A.]: Went back for the second load.

[Q.]: And what was loaded up in the second load?

[A.]: The rest of the concrete.

. . . 

[Q.]: Was there any debris, any wooden debris in with that concrete?

[A.]: No. 
10

[Q.]: Were you - - where were you when it was being loaded?

[A.]: The concrete?

[Q.]: Yes.

[A.]: Sitting in the truck.

[Q.]: So how would you know if there was wooden debris or not back 

there?

[A.]: Because I checked the load before I left.

[Q.]: And then when you dumped it in the yard was there any - - is there 

any wooden debris in the yard where you dumped it?

[A.]: No. 

. . . 

[Q.]: And it was your understanding you were the only one that was 

picking up anything from the barber shop that day; is that correct?

[A.]: Yeah.

. . . 

[Q.]: Did you perform any work out at Sage Road as to the putting the 

concrete out there?

[A.]: It’s - - yeah, Sage.

. . .

[Q.]: And when was that?

[A.]: We’ve been doing it on and off.

[Q.]: The - -

[A.]: I don’t remember exact dates.

. . . 

[Q.]: Okay. So after the second week of May 2009 can you remember 

going forward when you did any work out there?
11

[A.]: We’ve gone twice I think after I got back.

[Q.]: Okay. And do you know when that was?

[A.]: I don’t have exact dates.

[Q.]: Okay. Do you know what you put out there?

[A.]: The concrete.

The next witness called by the State was Garcia, an employee of Kleberg 

County, Texas working under the supervision of appellant in Precinct Four. On direct 

examination, Garcia testified as follows:

[Q.]: Do you recall hauling anything from . . . [appellant’s] barbershop?

[A.]: Yes, I remember doing that.

[Q.]: And what exactly - - what did you haul from his barbershop?

[A.]: Well, he told me to take the truck and go to his residence over there 

because there was, Mr. Saldana was going to be there and there 

was going to be concrete and to dump the load at the yard.

[Q.]: And go back. When you said he told you to go over there who are 

you referring to as he?

[A.]: [Appellant].

. . . 

[Q.]: [So] after lunch you went over there and what was loaded into the 

Precinct 4 truck?

[A.]: Debris.

[Q.]: Debris? And when you say debris what do you mean by debris?

[A.]: From the barbershop, debris and lumber and a bunch of the wood 

that was going to the truck.

[Q.]: So wooden debris?
12

[A.]: Yeah, something like that.

[Q.]: How much debris was loaded?

. . .

[A.]: Exactly how much, I don’t know - - they just he told me to load up 

the truck with debris.

. . .

[Q.]: And, so, were you sitting in the truck or out of the truck?

[A.]: I was sitting briefly inside the truck and then I got out. I walked to 

the back of the truck and I waited until he finished loading the truck.

[Q.]: And did you see what was being loaded at that time?

[A.]: I saw him grab a bunch of debris and put it in the truck.

[Q.]: Wooden debris?

[A.]: Yeah.

. . .

[Q.]: Okay. And did you see any concrete being loaded?

[A.]: I didn’t see, it might be. I didn’t see any concrete. 

[Q.]: You didn’t see any concrete?

[A.]: I wasn’t sure if there was any or not, I don’t know, sir. 

. . .

[Q.]: So after it’s loaded . . . where did you take it after that?

. . .

[A.]: I took it to the yard.

[Q.]: And what’s the yard?

[A.]: Precinct 4. I dumped it where we have a pile, caliche pile and dirt 

pile and concrete pile. I just dumped it there.
13

[Q.]: So you dumped the debris right there, the wooden debris out in the 

yard. Is that outside the fence part?

[A.]: Outside the fence yes, sir, on the south side.

[Q.]: Okay. And was there already wooden debris out there?

[A.]: No, sir.

. . .

[Q.]: Was [appellant] . . . outside at all when you were out there?

[A.]: I never saw him there, sir, I don’t remember.

[Q.]: And who told you to go and take the Precinct 4 trash truck over to 

his house to be loaded up?

[A.]: [Appellant]. 

. . .

[Q.]: Now, you had said earlier - - what did he tell you exactly?

[A.]: He told me to take the truck, the trash truck to his residence, there 

was going to be some - - Saldana was going to be there to load me 

up and there was going to be concrete and to dump the load at the 

yard.

[Q.]: Okay. And so - - but you’re saying, you’re telling the jury that you 

didn’t even see any concrete?

[A.]: I’m not sure there was any no, sir.

[Q.]: So did you stop Saldana and say no, no. I’m only supposed to 

have concrete loaded up?

[A.]: No, sir.

On cross-examination, Garcia testified as follows:

[Q.]: Mr. Garcia, you were called by . . . [appellant] and told to bring a 

trash truck to pick up concrete and only concrete; is that correct?

[A.]: He said it was going to be concrete, yes, sir.
14

[Q.]: Now, when you got there . . . [appellant] wasn’t on the property?

[A.]: No, he was not. I didn’t see him there.

[Q.]: And whatever they put in the back of your truck you didn’t see any 

concrete, you saw debris but you don’t know whether there was 

concrete or not mixed?

[A.]: I don’t know if it was there or not. I don’t know, sir.

The next witness called by the State was Robyn Wilson, an investigator for the 

Office of the Texas Attorney General. On direct examination, Wilson testified in relevant 

part as follows:

[Q.]: Now, Sergeant Wilson, when you talked to [appellant] about this 

situation, what did he tell you concerning the alleged incident?

[A.]: I told him that I was there investigating some allegations that had 

been made about the barbershop and he said that he did not use 

any county equipment or county personnel.

. . .

[Q.]: Now, at any time during that interview did [appellant] ever bring up 

the subject of concrete?

[A.]: No.

[Q.]: And at any time during that interview did [appellant] ever indicate 

that county trucks were used to take debris from his residence? 

[A.]: No.

On cross-examination, Wilson testified that appellant was initially suspected of “using 

county trucks and labor to remove and demolish a building.” Wilson conceded that 

there was no evidence that appellant used county vehicles or employees to demolish a 

building. On the contrary, the evidence established that a private contractor had 

demolished the barbershop. Wilson also testified that appellant was later suspected of 
15

using county vehicles and employees to transport debris from the former barbershop to 

a landfill. Again, Wilson conceded that there was no evidence that appellant used 

county vehicles or employees to transport debris from the barbershop to a landfill. On 

the contrary, the evidence established that the debris was transported to the Precinct 

Four yard. The following exchange occurred on cross-examination by defense counsel:

[Q.] So are we here just because of the concrete and it’s developed 

from demolishing a building with county funds, transporting debris 

to the landfill with county equipment, and now we’re at—are we 

basically now accusing him of transporting concrete?

[A.] No, sir. We’re accusing him of using his position as a County 

Commissioner to gain personal benefit.

[Q.] Okay. And what is the personal benefit? Can you tell me that?

[A.] You’re asking for my opinion?

[Q.] I want your opinion.

[A.] You want my opinion. My opinion is that during this process he got 

caught and was unable to use the county equipment and the 

county, the city landfill to dispose of the barber shop and so what 

actually happened was he was unable to use the county labor and 

the county trucks for a limited period of time.

In addition to the foregoing, the State also offered evidence of what it alleged to 

be two prior instances of criminal conduct involving certain employees of Kleberg 

County working under appellant’s supervision in Precinct Four. This evidence was 

offered through the testimony of Alex Soliz, a former employee of Kleberg County -

Precinct Four.

4

 

4

 Prior to the witness taking the stand, the trial court held a hearing outside the presence of the 

jury and ruled that the testimony would be allowed under Rule 404(b). See TEX. R. EVID. 404(b).
16

The first incident, which took place sometime in 2003,5involved the use of county 

vehicles and employees to transport caliche and dirt from the Precinct Four yard to a 

location on County Road 1118, on or near the private property of Sergio Bustamante, 

who was also an employee of Precinct Four. Soliz testified that, at the time of the 

incident, the employees were working on a county culvert and that “[t]he only thing that 

wasn’t county work [was] . . . all that dirt.” According to Soliz, a roping arena was 

located on Bustamante’s property, and Bustamante told him to deposit the dirt in that 

location: “I was told by Mr. Bustamante to knock down some dirt inside the arena. He 

was told - - he told me that [appellant] told me that I could do that. So in obedience to 

my supervisor I dumped what I was told.”

Soliz also testified about a second incident, which took place sometime between 

2004 and 2005 and also involved the use of county vehicles and employees. Soliz 

testified that, while he was employed by Kleberg County, on county time, and under the 

supervision of appellant, the County Commissioner for Precinct Four, he was ordered 

by appellant to use a county vehicle to travel to Loves Truck Stop. At Loves Truck Stop, 

Soliz followed instructions from appellant to load the truck with dirt. Then, still following 

orders, Soliz drove the truck to De Leon’s private property, where the dirt was unloaded 

and spread around the property using a backhoe owned by Kleberg County and 

operated by De Leon. Soliz testified that he did not know whether appellant knew the 

county backhoe was being used for this purpose.

Finally, appellant took the stand and testified on his own behalf. According to 

appellant, on March 2, 2009, he instructed De Leon and Garcia to move concrete debris

 

5

 There was some confusion about when the first incident occurred. Soliz testified to two 

different approximate dates. The first was sometime in 2003, and the second was a date between 2004 

and 2005.
17

from a demolished barbershop on appellant’s private property to the Precinct Four yard. 

Appellant stated that he donated the concrete debris to the county and later used it to 

reinforce the bulkhead of a Precinct Two drainage ditch that is prone to erosion. 

Appellant stated that, on the afternoon of March 2, he inspected the concrete debris that 

was dumped at the Precinct Four yard. Appellant noticed that some wooden “debris” 

was mixed in with the concrete debris. Appellant testified that he borrowed his 

secretary’s personal pickup truck and hauled the wooden debris back to his property. It 

was taken to a landfill the next day. According to appellant, when Judge De La Garza 

questioned him about the reported use of county equipment on his private property, he 

told him that he used the county trucks because he was donating the concrete debris to 

be used in repairing a bulkhead in Precinct Two. When asked on cross-examination 

why he told Sergeant Wilson that he did not use county equipment or personnel in 

hauling concrete debris from his property, appellant said he did not tell Sergeant Wilson 

about donating the concrete debris for county use because she did not ask him about it.

In his closing argument, the prosecutor repeated and emphasized his allegations 

regarding other instances of conduct involving county vehicles and employees under 

appellant’s supervision:

Al Soliz told you about two more instances of while he was a county 

employee that he used county equipment on county time and for the 

personal benefit of Gus De Leon, one of the same witnesses that’s trying 

to help the defendant there, and for Sergio Bustamante, that he took dirt, 

county dirt and used county equipment to go out there, your taxpayers for 

their benefit, which benefits [appellant] because he keeps, takes care of 

his boys then they’ll be loyal to him when he wants it done himself. They’ll 

come and try to cover up everything for him so he’s lying times two . . . .

So what we have here is that the only person that’s telling the truth 

according to [appellant], is [appellant] that’s charged with a crime, Gus De 
18

Leon, and Garcia who are also his employees, who are also a party to the 

crime, so consider that. But everyone else, they’re liars.

In his final remarks, the prosecutor told the jury about the message a guilty 

verdict in this case would send to Kleberg County:

It tells future elected officials, hey, Kleberg County, I better do this legally. 

I’ve got to do this legally because are you really buying this donated 

concrete story? Even if you bought that story, he still got a benefit. He 

got the concrete taken away from his property. What if your concrete was 

in your front yard and someone just came and got it for free[?] [T]hat’s a 

benefit, but he used taxpayer money, equipment, employees.

The jury found appellant guilty. This appeal ensued.

II. SUFFICIENCY OF THE EVIDENCE

In his first and second issues, appellant challenges the sufficiency of the 

evidence to support his conviction. In his first issue, appellant argues that the evidence 

is insufficient because there is no evidence that he misused government property, 

services, or personnel in violation of section 39.02(a)(2) of the Texas Penal Code. See

TEX. PENAL CODE ANN. § 39.02(a)(2). In his second issue, appellant argues that the 

evidence is insufficient because there is no evidence that he intended to obtain a

benefit. See id. The State maintains that the evidence is sufficient to prove both 

elements.

A. Standard of Review

In a sufficiency review, courts examine the evidence in the light most favorable to 

the verdict to determine whether “any rational fact finder could have found guilt beyond 

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (“[T]he Jackson legalsufficiency standard is the only standard that a reviewing court should apply in 
19

determining whether the evidence is sufficient to support each element of a criminal 

offense that the State is required to prove beyond a reasonable doubt.”). This standard 

requires reviewing courts to resolve any evidentiary inconsistencies in favor of the 

judgment, keeping in mind that the jury is the exclusive judge of the facts, the credibility 

of the witnesses, and the weight to give their testimony. Brooks, 323 S.W.3d at 899; 

see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) (“The jury, in all cases, is 

the exclusive judge of the facts proved, and of the weight to be given to the testimony . . 

. .”). Appellate courts do not re-evaluate the weight and credibility of the evidence; they 

only ensure that the fact finder reached a rational decision. Laster v. State, 275 S.W.3d 

512, 517 (Tex. Crim. App. 2009).

Legal sufficiency is measured by the elements of the offense as defined by a 

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. 

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a 

charge is one that accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 

theories of liability, and adequately describes the particular offense for which the 

defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.

B. Applicable Law

In relevant part, the penal code provides as follows:

(a) A public servant commits an offense if, with intent to obtain a benefit 

or with intent to harm or defraud another, he intentionally or knowingly:

. . .

(2) misuses government property, services, personnel, or any 

other thing of value belonging to the government that has come into 
20

the public servant’s custody or possession by virtue of the public 

servant’s office or employment.

TEX. PENAL CODE ANN. § 39.02(a)(2). 

The Texas Penal Code defines “misuse” as follows: 

to deal with property contrary to: (A) an agreement under which the public 

servant holds the property; (B) a contract of employment or oath of office 

of a public servant; (C) a law, including provisions of the General 

Appropriations Act specifically relating to government property, that 

prescribes the manner of custody or disposition of the property; or (D) a 

limited purpose for which the property is delivered or received.

Id. § 39.01(2).

C. Discussion: Misuse

In his first issue, appellant contends that the evidence is insufficient to establish 

that he misused county vehicles and employees.

To prove the “misuse” element of the offense, the conduct at issue must meet the 

statutory definition of “misuse,” which includes four different categories of “misuse.” 

See id. § 39.01(2). The State maintains that appellant’s conduct fits within the first 

category of “misuse,” which prohibits dealing with property contrary to an agreement 

under which the property is held. See id. § 39.01(2)(A). The statute does not define 

“agreement.” However, in the context of the misapplication-of-fiduciary-property statute, 

see id. § 32.45 (West Supp. 2011), the Fourteenth Court of Appeals has construed the 

term “agreement” to mean “a harmonious understanding as to a course of action.” 

Anderson v. State, 322 S.W.3d 401, 406 (Tex. App.—Houston [14th Dist.] 2010, pet. 

ref’d). According to the State, the employee timesheets signed by appellant constitute 

evidence of an agreement that appellant would use county vehicles and employees “for 

the sole benefit of Kleberg County and not for the benefit of any person, private 
21

business, corporation, or other.” We agree. Therefore, to prove the element of 

“misuse,” the State had the burden to produce evidence that appellant breached this 

agreement.

The indictment alleged that appellant committed “misuse” by using county 

vehicles and employees to assist in hauling debris from appellant’s personal property. 

At trial, the uncontroverted evidence established that appellant instructed two county 

employees, De Leon and Garcia, to use two county vehicles to haul debris from his 

personal property. The employees performed this work on county time. 

Appellant argues that the evidence is insufficient to prove “misuse” because the 

State failed to prove that appellant received a personal benefit from his use of county 

vehicles and employees. Although there was evidence that appellant donated two of 

the three truckloads of debris to the county for use in a county project in Precinct Two

and therefore did not receive a benefit with respect to those two truckloads, the jury was 

not obligated to accept that evidence. See Wise v. State, 364 S.W.3d 900, 906 (Tex. 

Crim. App. 2012) (holding that jury did not have to believe defendant’s brother’s 

uncontroverted testimony that defendant purchased a computer at a flea market in 

2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (stating that the finder 

of fact “may believe or disbelieve all or any part of a witness’s testimony, even if that 

testimony is not controverted”); Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 

[Panel Op.] 1978) (“The jury, or trial judge in a trial before the court, is the sole judge of 

the credibility of the witnesses and may accept or reject any part or all of the testimony 

given by State or defense witnesses.”); see also Winfrey v. State, No. PD-0943-11, 

2013 Tex. Crim. App. LEXIS 431, at *37 (Tex. Crim. App. Feb. 27, 2013) (“The jury did 
22

not have to believe appellant’s self-serving statement that she always shaves her pubic 

hair, especially in light of Jason’s testimony indicating that the shaving occurred in 

response to the warrant.”).

“We [must] resolve inconsistencies in the testimony in favor of the verdict.” Curry 

v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). “When the record supports 

conflicting inferences, we presume that the jury resolved the conflicts in favor of the 

verdict and therefore defer to that determination.” Temple v. State, No. PD-0888-11, 

2013 Tex. Crim. App. LEXIS 161, at *51–52 (Tex. Crim. App. Jan. 16, 2013). 

Furthermore, we “may not re-weigh the evidence and substitute our judgment for that of 

the jury.” King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

Accordingly, we must defer to the jury’s resolution of the conflicting evidence with 

regard to whether appellant received a personal benefit. When viewed in the light most 

favorable to the verdict, the combined and cumulative force of all the evidence supports 

a reasonable inference that appellant realized a personal benefit. “This was not a 

determination so outrageous that no rational trier of fact could agree.” Wirth v. State, 

361 S.W.3d 694, 698 (Tex. Crim. App. 2012).

Accordingly, appellant’s first issue is overruled. 

D. Discussion: Intent to Obtain a Benefit

In his second issue, appellant argues that the evidence is insufficient because 

there is no evidence that he intended to obtain a benefit. Specifically, appellant argues 

that there is no evidence that the value of the debris he donated to Kleberg County was 

less than $52.52, the value of the use of county vehicles and employees to transport the 

debris. However, under the case law interpreting this section of the penal code, 
23

evidence that the county received a benefit is not controlling with regard to the 

sufficiency of the evidence to prove appellant’s intent to obtain a benefit. See Campbell 

v. State, 139 S.W.3d 676, 684 (Tex. App.—Amarillo 2003, pet. ref’d) (“[U]nder the case 

law, evidence of a benefit to the Department is not controlling in a legal sufficiency 

analysis of the evidence supporting a finding of appellant’s intent to obtain a benefit.”). 

We note that the evidence of appellant’s intent to obtain a benefit is 

circumstantial in nature; however, that does not render it insufficient. See Hooper v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt.”). We conclude that the jury could 

have reasonably inferred that appellant intended to obtain a benefit based on his 

conduct in using county vehicles and employees to haul debris from his personal 

property. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may 

also be inferred from circumstantial evidence such as acts, words, and the conduct of 

the appellant.”). The jury was not obligated to accept appellant’s testimony to the 

contrary. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (“[T]he 

jury, as the sole judge of the weight and credibility of the evidence, was free to accept or 

reject any or all of the evidence of either the State or the defense, even if that evidence 

was uncontradicted.”). Accordingly, we conclude that the evidence is sufficient to 

support the jury’s verdict. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 

1993) (explaining that “the evidence is not rendered insufficient simply because 

appellant presented a different version of the events”).

Appellant’s second issue is overruled.
24

III. CHALLENGES FOR CAUSE

In his third issue, appellant contends that because the State was permitted to 

successfully challenge numerous jurors for cause, he “was tried by a jury that excluded 

his supporters and included his detractors.” We first note that appellant provides no 

citations to the record in support of this issue. See TEX. R. APP. P. 38.1(i). Moreover, 

the record reflects that after voir dire, counsel for appellant and the State each 

submitted strikes and each counsel was given a list of jurors selected. Defense counsel 

confirmed on the record the agreed strikes for cause. Thereafter, the trial court asked 

specifically, “Any objections to the listing of the jurors?” Defense counsel responded, 

“[t]he defense has no objection.” Thus, no issue is preserved for our review. See TEX.

R. APP. P. 33.1; Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994) (“A timely 

and reasonably specific objection is required to preserve error for appellate review.”). 

We overrule appellant’s third issue.

IV. EVIDENCE OF EXTRANEOUS OFFENSES

In his fourth issue, appellant contends that the trial court improperly admitted 

evidence of alleged extraneous offenses. Appellant argues that the evidence should 

not have been admitted for any purpose and was unfairly prejudicial.

A. Standard of Review

We review a trial court’s decision to admit evidence for an abuse of discretion. 

Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its 

discretion only if its decision is “so clearly wrong as to lie outside the zone within which 

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. 

App. 2008). If the trial court’s decision is correct on any theory of law applicable to the 
25

case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. 

App. 2009).

B. Applicable Law

Evidence of an extraneous offense is admissible if it has relevance apart from its 

tendency to prove the character of a person in order to show that he acted in conformity 

therewith. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). Rule 

404(b) provides as follows:

Evidence of other crimes, wrongs or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It 

may, however, be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident, provided that upon timely request by the accused in a 

criminal case, reasonable notice is given in advance of trial of intent to 

introduce in the State’s case-in-chief such evidence other than that arising 

in the same transaction.

TEX. R. EVID. 404(b); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996); see 

also Garcia v. State, 893 S.W.2d 17, 21 (Tex. App.—Corpus Christi 1994, pet. ref’d) 

(“Evidence of other crimes may be admitted to show intent and identity unless the 

prejudicial effect substantially outweighs its probative value.”). Additionally, extraneous 

evidence may be relevant and admissible to rebut a defensive theory. Roberts v. State, 

29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

Before evidence of an extraneous offense is admissible, the trial court, in 

determining relevance, must make a determination that the jury could find beyond a 

reasonable doubt that the defendant committed the extraneous offense. See Garcia v. 

State, 893 S.W.2d 17, 19 n.1 (Tex. App.—Corpus Christi 1994, pet. ref’d) (citing Harrell 

v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994)); see also Mitchell v. State, 931 

S.W.2d 950, 954 (Tex. Crim. App. 1996) (“When evidence of extraneous offenses has 
26

been offered, regardless of the respective phase of a trial, the law requires that it be 

proved beyond a reasonable doubt that the defendant committed the said extraneous 

offenses, or is at least criminally responsible for its commission.”).

C. Discussion

In a hearing held out of the presence of the jury, appellant argued that evidence 

of prior bad acts was not admissible during the State’s case-in-chief. See Daggett v. 

State, 187 S.W.3d 444, 454 (Tex. Crim. App. 2005) (“While generally such evidence is 

admissible only during the State’s rebuttal, we have previously found that, if extraneous 

offense evidence is improperly introduced during the State’s case-in-chief, any error 

may be cured by the defendant’s subsequent testimony which ‘opens the door’ to 

rebuttal.”). Appellant also argued that the evidence was not admissible under Rule 

404(b). See TEX. R. EVID. 404(b).

The trial court ruled that the evidence would be admitted. See TEX. R. EVID. 

103(a)(1) (“When the court hears objections to offered evidence out of the presence of 

the jury and rules that such evidence be admitted, such objections shall be deemed to 

apply to such evidence when it is admitted before the jury without the necessity of 

repeating those objections.”).

On appeal, appellant argues, inter alia, that pursuant to Reeves v. State ex rel. 

Mason, 267 S.W.2d 666, 669 (Tex. 1924), the “forgiveness doctrine” bars the admission 

of evidence of illegal acts committed during a prior term of office.6 Reeves was a quo 

warranto proceeding to remove a county sheriff and stands for the proposition that an 

 

6

 The “forgiveness doctrine” refers to the idea “that pre-election conduct does not disqualify one 

from holding office the same way post-election conduct does.” In re Bazan, 251 S.W.3d 39, 42 (Tex. 

2008) (orig. proceeding). “The doctrine’s rationale is that the public has the authority ‘to forgive the 

misconduct of an elected official’ following a campaign in which all the facts would presumably become 

known.” Id. (quoting In re Brown, 512 S.W.2d 317, 321 (Tex. 1974)).
27

elected official “cannot be removed for acts committed prior to his election to the term of 

office he is holding.” Id. In its appellate brief, the State argues that the forgiveness 

doctrine is inapplicable to the instant case. We agree with the State. The forgiveness 

doctrine is not a rule of evidence. Accordingly, the trial court’s ruling was not erroneous

with respect to the forgiveness doctrine.

This leaves the question of whether the trial court properly admitted the evidence 

under Rule 404(b). See TEX. R. EVID. 404(b). The State offers three arguments for why 

the evidence was properly admitted under Rule 404(b). See Santellan v. State, 939 

S.W.2d 155, 168 (Tex. Crim. App. 1997) (“If the opponent of extraneous offense 

evidence objects on the grounds that the evidence is not relevant, violates Rule 404(b), 

or constitutes an extraneous offense, the proponent must satisfy the trial court that the 

extraneous offense evidence has relevance apart from its character conformity value.”). 

Each will be addressed in turn.

First, according to the State, the evidence was admissible to rebut appellant’s

suggestion during his opening statement and cross-examination of Sergeant Wilson that 

the State went back ten years and could not find any evidence against him. See 

Hernandez v. State, 897 S.W.2d 488, 494 (Tex. App.—Tyler 1995, no pet.) (holding that 

defense counsel’s question, “Have you ever had any other type of problems with the 

law?” and defendant’s answer of “No,” opened the door to fact that defendant was 

wanted for murder in Mexico). In relevant part, counsel for appellant’s said the following 

in his opening statement:

What you will see is that after this high dollar investigator kept hitting a 

brick wall because everything they were alleging that [appellant] did was 

not true, and instead of saying, Yah, it’s enough and walking away, they 

tried to save face. And you will hear the hours and hours and hours and 
28

the thousands of dollars that they spent, the State of Texas, investigating 

[appellant] not only from the March 2, 2009 incident, but they went back 

seven, eight, nine years and they dug and they dug and they spent more.

. . .

But do they stop there? No. No, because they have to destroy this guy.

The State argues that the foregoing raised a defensive theory to the effect that 

“the State went back ten years and could not find any evidence against [appellant].” 

See Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) (“[P]robably the most 

common situation which gives rise to the admission of extraneous offenses is in rebuttal 

of a defensive theory.”). Therefore, according to the State, appellant opened the door to 

evidence of any wrongdoing he committed in the prior ten years. See Hayden v. State, 

296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (“A party opens the door by leaving a false 

impression with the jury that invites the other side to respond.”). We disagree.

In his opening statement, counsel for appellant told the jury that the investigation 

“went back” almost ten years. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. 

App. 2008) (holding that a defense opening statement may open the door to the 

admission of extraneous-offense evidence to rebut defensive theories presented in that 

opening statement). Counsel gave the jury two reasons why the investigation went 

back almost ten years. First, according to counsel, the State was unable to find any 

evidence to prove the charged offense that allegedly took place on March 2, 2009. 

Counsel told the jury that the State’s “high dollar investigator kept hitting a brick wall 

because everything they were alleging that [appellant] did was not true.” Second, in 

counsel’s opinion, the real agenda behind the investigation was political. Thus, instead 

of terminating the investigation when no evidence was uncovered, the State continued 
29

to pour money and resources into an ever-widening investigation into appellant’s past. 

According to counsel, the actual reason for the investigation going back so far was to 

advance a political agenda. As counsel told the jury:

[Appellant has] been a county commissioner for over 30 years and has 

always won, always had an opponent and always won by 70 percent. But 

they wanted to destroy him to make sure that it didn’t happen again 

because the elections were coming up.

Counsel did not hold his client out as being a perfect law-abiding citizen who 

would never commit any criminal offense or who had not committed any criminal 

offense in the prior ten years. See Roberts, 29 S.W.3d at 601 (“When a defense 

witness presents a picture that the defendant is not the type of person to commit the 

charged offense, the prosecution may impeach the defense witnesses’ testimony by 

introduction of similar extraneous offenses.”). Rather, counsel vigorously opposed the 

State’s case, maintaining that the evidence was insufficient to prove the charged 

offense. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (“But a 

mere denial of commission of an offense generally does not open the door to 

extraneous offenses because, as appellant properly points out, a defendant generally 

denies commission of the offense at trial—that is the reason for having a trial.”). This 

did not open the door to trying appellant for some collateral crime or for being a criminal 

generally. See id.; Boutwell v. State, 719 S.W.2d 164, 173, 174 (Tex. Crim. App. 1986) 

(“The general rule is that an accused may not be tried for some collateral crime or for 

being a criminal generally.”) (citing Williams v. State, 662 S.W.2d 344 (Tex. Crim. App. 

1983)).

In addition, the State also relies on the following cross-examination of Sergeant 

Wilson by appellant’s attorney:
30

[Q.] I mean, you looked – investigation not only included this but you 

went seven, eight, nine years back on [appellant].

[A.] For this particular investigation no, sir.

Counsel clearly asked Sergeant Wilson about the scope of the investigation. See 

Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994) (holding that extraneous 

evidence is admissible to rebut defensive theories raised by the State’s witnesses 

during cross-examination). However, Sergeant Wilson denied that the investigation 

went as far back in time as counsel suggested. Again, neither counsel nor the witness 

stated that appellant had a spotless record going back ten years. See Alexander v. 

State, 476 S.W.2d 10, 11 (Tex. Crim. App. 1972) (where the defendant testified on 

direct examination that “he had not been in trouble before,” the State on crossexamination was permitted to inquire about prior arrests for extraneous offenses to 

refute the defendant’s blanket statement concerning his exemplary conduct).7 On the 

contrary, defense counsel characterized appellant as the victim of political harassment, 

subject to an unduly exhaustive investigation by the State. Defense counsel asked 

Sergeant Wilson the following:

[Q.] When did the investigation end?

[A.] Prior to us walking in the courtroom.

[Q.] Okay. So you all were still investigating as of yesterday or what?

[A.] There were issues that occurred and that may or may not affect the 

punishment phase that the attorneys asked me to investigate, yes, 

sir. 

 

7

See Bell v. State, 620 S.W.2d 116, 126 (Tex. Crim. App. 1981) (“[T]he State had the right to 

inquire under the exception to the general rule about the arrest and conviction for possession of 

marihuana since the appellant had ‘opened the door’ on direct examination. Despite the characterization 

to the contrary by the panel, the question asked and answered on direct examination could not have left 

any other impression with the jury except that he had nothing in his criminal past except the 

embezzlement conviction, particularly when it was established on direct examination that this was the 

only time appellant had been to the ‘joint’ and had done well on parole.”).
31

[Q.] I’m talking about – I’m not talking about all these rabbit trails you’ve 

been chasing these last two or three months, I’m talking about the 

March 2, 2009 case. When did that investigation stop, yesterday?

[A.] When I had the evidence that I needed to prove that the offense 

occurred.

[Q.] Okay. It’s a real simple question, Sergeant.

. . . 

[Q.] Sergeant Wilson, when did the investigation of [appellant] 

concerning the March 2, 2009 incident stop?

[A.] I don’t know the date of that, sir. We had enough evidence to 

present to the Grand Jury and presented to the Grand Jury.

The State argues that the foregoing raised a defensive theory to the effect that 

“the State went back ten years and could not find any evidence against [appellant]”; 

however, the relevant portions of the record show that counsel maintained only that the 

State had no evidence of the offense for which appellant was charged and that the 

investigation and prosecution continued nonetheless for illicit political reasons. 

An alleged political vendetta is not an affirmative defense. See Juarez v. State, 

308 S.W.3d 398, 402–03 (Tex. Crim. App. 2010) (“[A]n affirmative defense was defined, 

in part, as meaning a new matter, assuming the complaint to be true, which constitutes 

a defense to it.”) (internal quotations omitted); see also TEX. PENAL CODE ANN. §§ 8.01–

.07 (West 2011 & Supp. 2011) (general defenses to criminal responsibility). Nor does it 

tend to negate one or more elements of the charged offense. See TEX. PENAL CODE 

ANN. § 39.02(a)(2), (c)(2) (abuse of official capacity). Thus, it is not a defensive theory 

that may be rebutted by extraneous offense evidence. See Berry v. State, 233 S.W.3d 

847, 858 (Tex. Crim. App. 2007) (“[E]xtraneous-offense evidence may be admissible 
32

when a defendant raises an affirmative defense or a defensive issue that negates one 

of the elements of the crime.”).

Furthermore, the suggestion by defense counsel that the State went back ten 

years “to find stuff on the defendant” is simply not the same as saying that the State 

went back ten years and found no evidence of other uncharged, unadjudicated crimes. 

Although counsel repeatedly stated that there was no evidence to prove the charged 

offense, he did not make any statements or suggestions concerning the results of the 

State’s broader investigation. Thus, there was no false impression to rebut concerning 

appellant’s criminal record or other uncharged, unadjudicated offenses during the 

preceding ten-year period. Accordingly, the evidence of extraneous offenses was not 

admissible to rebut a false impression that appellant had committed no criminal 

offenses in the prior ten years.

Second, the State contends that the extraneous offense evidence was 

admissible to rebut appellant’s “donation” alibi. The record shows that the “donation” 

issue was introduced for the first time during the State’s opening statement. The State 

told the jury:

[T]he evidence will show the defendant was trying to get his barbershop 

demolished and hauled away for nearly free until Mr. Fugate [the Mayor of 

the City of Kingsville] drove by and saw this. What he ends up paying is 

he ends up paying Mr. Saldana $500 [for the demolition]. He ends up 

hiring Mr. De La Paz for hauling away the debris for $530. He ends up 

paying the City of Kingsville $746 [for dumping materials at the City of 

Kingsville’s landfill]. When I say he ends up [it is] because originally he 

was trying to get this done for free . . . [that is, until] Mr. Fugate drove by 

and saw it.

. . . 

Now, I suspect what you’re going to hear from them was yes, we were 

over there but “I was donating concrete to the county which was being 
33

placed out at Sage Road.” And the State’s not denying that concrete may 

have ended up on Sage Road, but what we’re submitting to you is, this is 

something after the fact. This is a story they came up with and said, we’ll 

make this work because we have to.

As a general rule, the defensive theory that the State wishes to rebut through the 

use of extraneous offense evidence must be elicited on direct examination by the 

defense and may not be elicited by “prompting or maneuvering” by the State. See 

Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980); see also Lopez v. 

State, 928 S.W.2d 528, 531 (Tex. Crim. App. 1996) (“[I]t is appropriate for the State to 

impeach appellant in order to correct a false impression left by appellant . . . . [S]uch 

questioning by the State can only be done when appellant has voluntarily testified to the 

collateral matter.”). 

In addition to being the first to raise the “donation” issue at trial, the State also 

told the jury that “donation” was not a valid alibi because even if appellant had donated 

the concrete, he was still guilty of misusing county vehicles and employees. In his final 

remarks, the prosecutor told the jury what message a guilty verdict in this case would 

send to Kleberg County:

It tells future elected officials, hey, Kleberg County, I better do this legally. 

I’ve got to do this legally because are you really buying this donated 

concrete story? Even if you bought that story, he still got a benefit. He 

got the concrete taken away from his property. What if your concrete was 

in your front yard and someone just came and got it for free[?] [T]hat’s a 

benefit, but he used taxpayer money, equipment, employees.

Thus, on the one hand, for purposes of seeking a guilty verdict from the jury, the 

State maintained that “donation” was not a valid alibi. On the other hand, in arguing for 

the admissibility of evidence of extraneous offenses, the State now maintains that 
34

“donation” was a valid alibi that it was entitled to rebut. Clearly, both positions cannot 

be correct.

“The defense of alibi arises where there is evidence that appellant is at a point 

where he could not have been guilty of participating in the offense.” See Giesberg v. 

State, 984 S.W.2d 245, 247 (Tex. Crim. App. 1998). “If a defendant wishes to rely upon 

alibi as his defense, he bears the duty of going forward with evidence raising an alibi in 

order to create a reasonable doubt of the defendant's presence at the time and place 

where the crime was committed.” Id. at 248. 

In this case, appellant’s actual presence at the time and place where the crime 

was allegedly committed was not contested and not an essential part of the 

prosecution’s case. See TEX. PENAL CODE ANN. § 39.02(a)(2), (c)(2) (abuse of official 

capacity). Moreover, donation did not make appellant’s presence any more or less 

likely than it otherwise would be. Finally, an alibi means the defendant could not have 

committed an offense which occurred, while donation arguably means no offense was 

committed by appellant or anyone else. See Giesberg, 984 S.W.2d at 248 (“[A]n alibi 

can only create a doubt about whether the State has met its burden of proving that a 

defendant committed the offense where the defendant’s actual presence at the time and 

place of the commission of the offense is an issue in the State’s case.”). According to 

the State, however, donation would not negate any element of the charged offense, and 

thus, it is irrelevant to appellant’s guilt or innocence.

Given that the State was the first to introduce the issue of donation, and given 

further that the State maintained throughout trial that donation was not a valid alibi and 

did not negate any element of the charged offense, the evidence of extraneous offenses 
35

was not admissible to rebut evidence that appellant donated the concrete at issue in this 

case.

Third, and finally, the State argues that the extraneous offense evidence was 

admissible to show appellant’s intent based on multiple instances of the same culpable 

conduct and similar circumstances where county trucks and county personnel were 

misused. See TEX. R. EVID. 404(b). 

It is well-settled that evidence of extraneous offenses may be admissible “[t]o 

prove scienter, where intent or guilty knowledge is an essential element of the state’s 

case and cannot be inferred from the act itself.” Albrecht v. State, 486 S.W.2d 97, 100

(Tex. Crim. App. 1972) (emphasis added). Here, the State did not attempt to explain 

why it needed the evidence of extraneous offenses to prove intent or how that would be 

accomplished. See Segundo v. State, 270 S.W.3d 79, 88 n.19 (Tex. Crim. App. 2008) 

(“The key . . . is that the proponent explain precisely how the proffered evidence is 

probative of a fact of consequence.”). In fact, the State’s position throughout trial was 

that appellant’s actions were sufficient to establish intent. As counsel stated in his 

closing argument:

Now, part of that, ladies and gentleman, of course is the intentionally or 

knowingly. How do you determine the defendant’s intent? You determine 

by looking at his actions. How do you determine that he intentionally or 

knowingly misused government property?

. . . 

It’s simple. Look at what he did that day. He tells everyone to take the 

county dump trucks to his residence and they do. He tells them Saldana 

is going to load you up and he does. Why? Because [appellant] is the 

boss. He said he was. They followed his orders.

And where you really look to determine his intent is what he did after he 

found out that he was caught. That afternoon, per Saldana’s testimony he 
36

goes and says, “do you know someone who can haul this stuff away,” that 

afternoon. Now, if you really believe that that after he filed a demolition 

permit well before that time and after he tries to get Eloy Saldana hired 

well before that time that he is now waiting until the afternoon of March 2, 

2009, to suddenly say, I’m going to need someone to haul away this giant 

piece of debris outside my house. No, he didn’t. He did it at that time 

because that’s when it came up because that’s when he got caught. 

According to the State, intent could be inferred from appellant’s actions. See Wolfe v. 

State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996) (“[I]ntent may be inferred from 

circumstantial evidence.”). Thus, there was no need for evidence of extraneous 

offenses to prove intent. See Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. 

App. 1991) (“It is also faithful to this Court’s long tradition of determining the 

admissibility of extraneous offense evidence on appeal by reviewing not only the 

relevance of that evidence, but the State’s need for it as well.”); see also Manning v. 

State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (“If the issue is disputed and the 

proponent has no other evidence to prove the fact, then the proponent’s need for the 

evidence is great, and that weighs in favor of admitting the evidence.”).

Moreover, the State used the evidence not to prove appellant’s intent, but rather, 

to prove conformity to bad character with respect to appellant and the witnesses who 

gave testimony favorable to appellant. See Montgomery, 810 S.W.2d at 391 (“The trial 

judge must conclude that the evidence tends in logic and common experience to serve 

some purpose other than character conformity to make the existence of a fact of 

consequence more or less probable than it would be without the evidence.”).

In its closing argument, the State told the jury the following:

What happened on March 2, 2009, wasn’t anything special for Precinct 4, 

it was business as usual.

. . .
37

Al Soliz told you about two more instances of while he was a county 

employee that he used county equipment on county time and for the 

personal benefit of Gus De Leon, one of the same witnesses that’s trying 

to help the defendant there, and for Sergio Bustamante, that he took dirt, 

county dirt and used county equipment to go out there, your taxpayers for 

their benefit, which benefits [appellant] because he keeps, takes care of 

his boys then they’ll be loyal to him when he wants it done himself. They’ll 

come and try to cover up everything for him so he’s lying times two . . . .

So what we have here is that the only person that’s telling the truth 

according to the defendant, is the defendant that’s charged with a crime, 

Gus De Leon, and Garcia who are also his employees, who are also a 

party to the crime, so consider that. But everyone else, they’re liars.

In the foregoing argument, the State told the jury that appellant was guilty of 

being in the “business” of criminal activity. See Robbins v. State, 88 S.W.3d 256, 263 

(Tex. Crim. App. 2002) (“[The] purpose of rule [404(b)] is to protect defendant from the 

‘undue prejudice’ that ‘when evidence is received that accused is of a wicked or criminal 

disposition, juries are likely to find him guilty of the offense charged regardless of 

whether it is proved by the evidence.’”) (quoting 2 Ray and Young, Texas Law of 

Evidence (2d ed., 1956), § 1492). Moreover, according to the State, this is why the 

defense witnesses were willing to “try to cover up everything,” because they were 

criminals too and “party to the crime.”8 This amounted to using evidence of other 

crimes, wrongs, or acts to prove the character of a person in order to show that he

acted in conformity therewith. See TEX. R. EVID. 404(b).9 To the extent the evidence 

 

8

 Although such impeachment of witnesses is permissible under certain limited circumstances, 

those grounds were not urged at trial or on appeal and are therefore not before the Court. See

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (“[W]hen a witness, on direct 

examination, makes a blanket assertion of fact and thereby leaves a false impression with respect to his 

prior behavior or the extent of his prior troubles with the law, he opens the door on his otherwise irrelevant 

past criminal history and opposing counsel may impeach him by exposing the falsehood.”) (internal 

quotations omitted).

9

See Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004) (“The rule prohibits only 

that evidence which is offered to prove a person’s character, from which the trier of fact is then to infer 
38

proved intent, it did so by suggesting that appellant necessarily intended to commit the 

charged offense because he is in the “business” of crime. See Webb v. State, 36 

S.W.3d 164, 181 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“In other words, 

proof of the sexual assault against Porter served no probative function other than to 

show appellant as a person who commits sexual assaults in general, and, therefore, 

was more likely to have committed the sexual assault against Baird, an inference rule 

404(b) strictly forbids.”).10 The evidence of extraneous offenses was not admissible for 

this purpose. See TEX. R. EVID. 404(b).

In sum, the trial court had no discretion to admit the evidence of extraneous 

offenses based on any of the theories advanced by the State. See Vinson v. State, 252 

S.W.3d 336, 340 (Tex. Crim. App. 2008) (“In our criminal justice system, the proponent 

of evidence ordinarily has the burden of establishing the admissibility of the proffered 

evidence.”). Thus, the trial court erred in admitting the evidence. 

Next, we must determine whether the error is reversible. Because no 

constitutional error is involved when evidence of uncharged misconduct is admitted, we 

look to Texas Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b). Under 

 

that the person acted in conformity with that character trait on the occasion in question. For example, in 

an injury to a child prosecution, the State might wish to offer other instances in which the defendant beat 

this or another child to prove he is a ‘chronic child abuser.’ The jury would then be invited to infer that, 

because the defendant is a chronic child abuser, he abused the child on this charged occasion. That is 

precisely the character-propensity purpose prohibited by Rule 404(b). Although this ‘child abuser’

character evidence is logically relevant to show the defendant committed the charged act of physical 

abuse, the law has, for centuries, rejected such evidence because it injects dangerous baggage of 

prejudice, distraction from the issues, time consumption, and hazard of surprise.”) (internal citations, 

quotations omitted).

10

 See id. at 222 (“But a ‘system’ or ‘pattern’ of committing offenses by itself is exactly the 

forbidden inference that one who violated the [laws] on one occasion must have violated them on the 

occasion charged in the incident. Unless something more than pattern and temporal proximity is 

required, the fundamental rule is gone. That is why ‘pattern’ is not listed in Rule 404(b) as an exception. 

Patterns of acts may show identity, intent, plan, absence of mistake, or one of the other listed grounds, 

but a pattern is not itself a reason to admit the evidence.”) (citing Owens v. State, 827 S.W.2d 911, 916 

(Tex. Crim. App. 1992)).
39

Rule 44.2(b), reviewing courts should disregard any error that did not affect the 

appellant’s substantial rights. Id.; see also King v. State, 953 S.W.2d 266, 271 (Tex. 

Crim. App. 1997) (“A substantial right is affected when the error had a substantial and 

injurious effect or influence in determining the jury’s verdict.”). “Such error is harmless if 

the reviewing court, after examining the record as a whole, is reasonably assured the 

error did not influence the jury verdict or had but slight effect.” Rivera-Reyes v. State, 

252 S.W.3d 781, 787 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Johnson v. 

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). 

“When an appellate court determines that a jury’s verdict was substantially 

influenced by the improper admission of substantively inadmissible Rule 404(b) 

evidence, that influence on the jury’s verdict will always be ‘injurious’ since there was no 

proper purpose for the jury to consider the evidence.” Hernandez v. State, 176 S.W.3d

821, 825 (Tex. Crim. App. 2005).

In this case, the improper use of extraneous offense evidence included 

arguments by the State that appellant should be found guilty of the charged offense 

because he and his employees are in the “business” of criminal activity. See Motilla v. 

State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002) (“The reviewing court may also 

consider the jury instructions, the State’s theory and any defensive theories, closing 

arguments and even voir dire, if applicable.”). The State suggested that the jury should 

reject appellant’s testimony on this basis. The State also argued that De Leon and 

Garcia testified falsely and that the evidence of extraneous offenses provided their 

motive for doing so, even though Garcia was not even implicated by those allegations. 

The State told the jury, “[Appellant] takes care of his boys . . . [so] they’ll be loyal to him. 
40

They’ll come and try to cover up everything for him.” This was “inflammatory,” 

“misleading,” and “confusing.” See id. It was “emotionally charged” to a degree that 

would “prevent the jury from rationally considering the evidence before it.” Id. 

In reviewing the sufficiency of the evidence in connection with appellant’s first 

and second issues, we noted that, as the finder of fact, the jury was free to disbelieve 

appellant’s testimony and to reject the other evidence favorable to appellant. We did 

not find the evidence of guilt to be overwhelming; rather, the sufficiency of the evidence 

hinged on the jury’s assessment of the credibility and weight to be given to appellant’s 

testimony. In overruling appellant’s first and second issues, we deferred to the jury’s 

assessment of the credibility and weight to be given to appellant’s testimony. 

Nevertheless, in this context, we observe that the State’s use of extraneous offense 

evidence was calculated to substantially influence the jury’s assessment of the 

credibility and weight to be given to appellant’s testimony, as well as the other evidence 

favorable to appellant. Because the sufficiency of the evidence hinged on that 

assessment by the jury, we conclude that the evidence of extraneous offenses had a 

substantial and injurious effect or influence in determining the jury’s verdict.

Accordingly, we conclude that the jury’s verdict was substantially influenced by 

the improper admission of extraneous offense evidence. See Robbins v. State, 88 

S.W.3d 256, 263 (Tex. Crim. App. 2002) (“[The] tendency of human nature to punish, 

not because our [defendant] is guilty this time, but because he is a bad man and may as 

well be condemned now that he is caught, is a tendency which cannot fail to operate 

with any jury.”) (quoting 1 WIGMORE, EVIDENCE (3d ed., 1940), § 57). We conclude that 

the extraneous offense evidence and arguments based on that evidence influenced the 
41

outcome and affected the fundamental fairness of the trial in this particular case. See

Boutwell v. State, 719 S.W.2d 164, 173 (Tex. Crim. App. 1986) (“Where the improper 

use of such extraneous acts in the context of the instant case might well have 

influenced the outcome and affected the fundamental fairness of the trial in this 

particular case, we feel compelled to address the issue.”). Accordingly, the error is 

reversible. See TEX. R. APP. P. 44.2(b).

Appellant’s fourth issue is sustained. 

V. CONCLUSION

The judgment of the trial court is reversed, and the cause is remanded for further 

proceedings consistent with this opinion.

___________________

ROGELIO VALDEZ

Chief Justice

Do not Publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

6th day of June, 2013.