Fourth Court of Appeals

San Antonio, Texas

CONCURRING OPINION

No. 04-22-00161-CR

Brandon Joshua VIGIL,

Appellant

v.

The STATE of Texas,

Appellee

From the 454th Judicial District Court, Medina County, Texas

Trial Court No. 20-06-13648-CR

Honorable Daniel J. Kindred, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Concurring Opinion by: Beth Watkins, Justice, joined by Patricia O. Alvarez, Justice

Sitting: Rebeca C. Martinez, Chief Justice

Patricia O. Alvarez, Justice

Beth Watkins, Justice

Delivered and Filed: June 7, 2023

In Vigil’s third issue, he complains that the trial court violated Texas Rule of Evidence 

705(b) by denying him the right to take the State’s witness, Deputy Reyes, on voir dire. He cites 

two opinions from the Texas Court of Criminal Appeals and applies them to the facts of this case. 

The court’s opinion does not cite Rule 705(b); instead, it concludes Vigil’s third issue is 

inadequately briefed. Because I do not agree with that reasoning, I respectfully concur in the 

court’s judgment as to part II. D.
Concurring Opinion 04-22-00161-CR

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In response to the court’s conclusion that Vigil’s third argument was inadequately briefed, 

I note that in his appellate brief, Vigil relies on Texas Rule of Evidence 705 to argue that the trial 

court was required to allow his trial counsel to take Deputy Reyes on voir dire. He supports that 

argument by citing two opinions from the Texas Court of Criminal Appeals, which he applies to 

the facts of this case with record citations. He then argues harmful error and cites another opinion 

from the Texas Court of Criminal Appeals to support his harmful-error argument. The State 

understood Vigil’s argument—it did not argue brief waiver. Because Vigil’s brief “contain[s] a 

clear and concise argument for the contentions made, with appropriate citations to authorities and 

to the record,” I believe Vigil’s brief on this point complies with Texas Rule of Appellate 

Procedure 38.1(i). For that reason, I cannot join in the court’s brief-waiver conclusion. 

However, I also cannot agree with Vigil’s argument that the trial court’s denial of his 

request to take Deputy Reyes on voir dire constituted harmful error. Rule 705(b) provides:

Before an expert states an opinion or discloses the underlying facts or data, an 

adverse party in a civil case may—or in a criminal case must—be permitted to 

examine the expert about the underlying facts or data. This examination must take 

place outside the jury’s hearing.

TEX. R. EVID. 705(b). Assuming that Deputy Reyes was testifying as an expert witness—a point 

the State does not concede—we must determine whether the error was “so harmful as to require a 

reversal.” Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992). Because the error is not 

constitutional, we will only reverse if it affected Vigil’s substantial rights; otherwise, the error

must be disregarded. TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a). In making this determination, 

we consider the entire record to decide whether the error had a substantial or injurious effect on 

the verdict of guilt. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Where the 

reviewing court has fair assurance that the error did not influence the jury or had but a slight effect, 
Concurring Opinion 04-22-00161-CR

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the conviction will stand. Id.; McDonald v. State, 179 S.W.3d 571, 578–79 (Tex. Crim. App. 

2005).

On direct examination, Deputy Reyes described his investigation of B.V.’s allegations. 

Vigil sought to take Deputy Reyes on voir dire after he described B.V.’s forensic interview:

STATE: And was that your investigation? Is that what was revealed in your 

investigation?

REYES: Yes, everything that she said was followed by or corroborated by 

[B.V.’s brothers], I guess, as accurately as I could have.

STATE: And did she say that the sexual abuse occurred that day or something 

at a different time?

REYES: No, it was a year prior and the Houston area was the most recent that 

she stated happened, which was a trip with her father and her two 

brothers, which the two brothers did say that they were in fact, in 

Houston with her at the time.

STATE: I’m sorry?

REYES: They were in Houston at the same time.

STATE: And so after you got that information, why did you not do a sexual 

assault nurse examination or refer them or refer [B.V.] to a SANE 

exam?

REYES: I didn’t find it necessary after a year to put her through an invasive 

procedure like that.

STATE: What do you normally look for in those examinations?

REYES: It’s usually physical trauma or - -

STATE: Is there a time limit for an accurate SANE?

REYES: Typically, it’s 96 hours or less.

STATE: And so we are talking about an event that occurred at least a year?

VIGIL: Can I take the witness on voir dire?

COURT: What for?
Concurring Opinion 04-22-00161-CR

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VIGIL: Well, about his expertise in what he’s testifying about.

STATE: Your Honor, I would say this is just general information known by 

law enforcement in his training. I’m not asking him to tell me what 

a nurse would do. He doesn’t know.

COURT: Not at this time. I mean, you’ll have cross examination with him so 

I’m going to deny at this time.

On appeal, Vigil argues this error was harmful because he “did not have the ‘underlying 

facts or data’ of the complained of expert’s testimony and the expert provided damaging and 

inadmissible testimony in the presence of the jury that could have been discovered and objected to 

outside their presence during a Rule 705 hearing.” But in the trial court, he did not make an offer 

of proof or otherwise demonstrate what “damaging and inadmissible testimony” Deputy Reyes 

provided or what “underlying facts or data” Detective Reyes testified to that Vigil was unaware 

of. See Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993) (concluding “any error in 

the trial court’s noncompliance with Rule 705(b) was harmless because appellant knew the 

‘underlying facts or data’ of [the expert’s] testimony”); see also TEX. R. EVID. 103(a)(2). In these 

limited circumstances, I cannot conclude that the denial of Vigil’s request to take Officer Reyes 

on voir dire affected his substantial rights. See, e.g., Trevino v. State, No. 04-12-00840-CR, 2014 

WL 3518098, *2–4 (Tex. App.—San Antonio July 16, 2014, no pet.) (mem. op., not designated 

for publication). 

For this distinct reason, I agree with the court’s decision to affirm the trial court’s judgment 

in all respects.

Beth Watkins, Justice

DO NOT PUBLISH