Opinion issued August 14, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00688-CR

———————————

HEATH ALAN BISHOP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1382023

MEMORANDUM OPINION

A jury convicted appellant Heath Alan Bishop of aggravated assault with a 

deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West Supp. 2013). The 

jury found true the enhancement allegations that Bishop previously was convicted 

of the felony offenses of forgery and aggravated robbery, and it assessed 
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punishment at 50 years in prison. Bishop appeals, contending that the evidence is 

legally insufficient to support his conviction and that the trial court erred with 

regard to two evidentiary rulings, excluding extraneous-offense evidence 

pertaining to the complainant and admitting an ice pick used in the commission of 

the crime.

We affirm.

Background

When complainant C.L. was 12 years old, he left home and joined a gang. 

By the time he was 14 years old, he was living alone in an apartment, which was 

leased by a more senior gang member, and he was selling drugs from that location. 

C.L. used a video monitor to watch as people approached from outside the 

apartment. He sold only to people he knew or trusted, and he held a loaded gun 

while making drug transactions. He said he sold the drugs near the threshold of the 

apartment, and it was not his habit to allow anyone inside. C.L. was acquainted 

with Bishop, who had purchased crack cocaine from him in this manner. 

One night, Bishop came to the apartment to buy crack. Although he had 

drugs available, C.L. told Bishop he had none to sell. Nevertheless he allowed 

Bishop inside to use the bathroom. Shortly thereafter, C.L. felt a tap on his back or 

shoulder, and Bishop began stabbing him in the chest and face with an ice pick, 
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eventually stabbing it through his eye and into his brain. The ice pick became stuck 

in his skull. C.L. blacked out, and Bishop left.

Eric Fitzpatrick came to the apartment, found C.L., and called 9-1-1 to 

report a possible shooting. It was either late on March 16 or just past midnight on 

March 17. Houston Police Department Officer R. De La Cruz was among the first 

responders. He testified that C.L. was “covered with blood,” “in agony,” “begging 

for help,” and “had his eye shut.” He testified that some of the blood appeared 

fresh. Likewise, blood was spattered throughout the apartment—on the floor, in the 

hallway, on the bedroom door, and in the kitchen. An empty bottle of “Oxygen 

Power” stain remover solution was found in the kitchen sink. 

C.L. was taken to the hospital, where he stayed for about a month. He

underwent brain and back surgeries, and he permanently lost vision in his right 

eye. He also suffered from headaches and had difficulty speaking. 

On the night of the assault on C.L., Bishop called his friend, L. Lozada and 

asked her to meet him at a motel where they sometimes went to talk and use drugs 

together. Lozada was acquainted with C.L. because she had previously 

accompanied Bishop to his apartment to buy drugs. Bishop told her that he had 

fought with C.L. and stabbed him multiple times with an ice pick, including 

stabbing him in the eye. He also said that he believed he had killed C.L. and that he 

had used a chemical cleaning solution to remove blood stains from the scene. 
4

Lozada noticed that Bishop had more money with him than he usually carried, and 

he had a salt shaker that C.L. used to store and conceal crack cocaine. 

When Lozada returned home, she told her mother that Bishop had confessed 

to her that he had killed a person. Her mother encouraged her to make a police 

report, which she did. A patrol officer responded and forwarded the information to 

one of the investigators on the case, HPD Sergeant K. Gibbs, who interviewed 

Lozada. Gibbs later testified that Lozada was unusually nervous during the 

interview because she was “afraid of the suspect herself,” and because of that, she

permitted the patrol officer who had initially responded and Lozada’s mother to be 

present, but silent, during the interview. Based on this interview, Gibbs prepared 

and presented a photographic lineup, from which Lozada identified Bishop.

Although Lozada was a drug user, Gibbs did not attribute her nervous 

behavior to withdrawal from narcotic drugs, but rather to her “extreme nervousness 

and anxiousness” about talking to the police. Lozada fell asleep during the 

interview, but Gibbs attributed that to her lack of sleep the night before. 

HPD Detective T. Tyler and Sgt. K. Tolls were also investigating the 

incident. Tyler testified that he responded to the incident in the early morning on 

March 17. In addition to collecting photographic evidence of the scene of the 

crime, he spoke with a downstairs neighbor who said that he saw 18 people come 

and go from C.L.’s apartment in the two days prior to the stabbing. 
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Tyler and Tolls saw C.L. at the hospital twice. During the first visit, they

observed that C.L was severely injured with stab wounds to his chest and both 

eyes, which affected his vision. They photographed his injuries, and those pictures 

were introduced into evidence at trial. C.L. was not talkative or forthcoming about 

the assault. Approximately 12 days after the attack, they visited C.L. a second time 

and showed him a photographic lineup, from which he immediately identified 

Bishop as the person who had stabbed him. 

Tolls received an ice pick at the hospital from a person who said it was 

removed from C.L.’s head. He testified that when used in the manner as it was 

used in this case, an ice pick is a deadly weapon. At trial, Bishop objected to the 

admission of the ice pick on the grounds that the chain of custody had not been 

established. The State argued that the ice pick was retrieved from the hospital, 

checked into evidence, and remained sealed until opened on the day of trial. The 

trial court overruled Bishop’s objection and admitted the ice pick into evidence.

In addition to interviewing C.L. at the hospital, Tyler and Tolls also spoke

twice to Bishop, once close in time to the assault and again about 12 days later. 

Bishop denied any involvement. By the second meeting Bishop had changed his 

appearance by shaving his head and goatee.

C.L. testified at trial. He revealed that he was in juvenile detention for 

violating probation on a charge of delivery of a controlled substance. He admitted 
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that he had been a member of the Puro Vato Locos gang since he was 12 years old 

and that he had been selling drugs for the gang. C.L. did not identify Bishop at 

trial, however, he pointed out that the reason he did not recognize Bishop may 

have been that Bishop had short hair at trial and long hair around the time of the 

stabbing. C.L. testified that although he did not see Bishop stab him, he was the 

only other person inside the apartment with him at that time. C.L. testified that 

Bishop’s brother was at the front door at the time of the stabbing, and he watched 

the brother until he blacked out. On cross-examination, C.L. agreed that Bishop’s 

brother might have participated in the attack as well. C.L. testified that he believed 

Bishop took an amount of crack cocaine worth about $700. 

Bishop’s attorney sought to impeach C.L. with extraneous-offense evidence, 

but the court admonished him multiple times that it was improper to ask questions 

about his prior acts of misconduct. Thus Bishop’s attorney was not permitted to 

ask such questions, and when given an opportunity to make a record, he 

summarized the questions that he would have asked C.L. about prior gang activity 

and drug sales on the night of the assault. Bishop’s attorney had previously 

explained that he wanted to ask questions about drug sales to establish a timeline 

of what happened that night so that he could argue that another person was the 

culprit, but when making a record of the questions he wished to ask, he did not 
7

explain how the answers might be relevant. He also did not state what answers he 

expected C.L. to give in response to the questions. 

Bishop’s defensive theory was misidentification. The evidence that C.L. had 

been stabbed and seriously injured was undisputed at trial, but Bishop’s theory was 

that he was not the assailant. To that end, Bishop presented several alibi witnesses, 

including his mother and two family friends. His mother testified that Bishop was 

working as a waiter for a catering business at that time and that she had driven him 

to and from work on the night of March 16. She said that after work, she drove him 

to a friend’s house. Bishop’s two friends testified that they were at the house when 

his mother dropped him off around midnight on March 17, he was wearing his 

work uniform when he arrived, and he remained with them through the early or 

late morning hours of March 17. 

In closing, Bishop argued that the State’s witnesses were unreliable due to 

their history of drug use, addiction, and criminal activity, that C.L. had not 

identified Bishop in open court, and that “there are plenty of other viable 

candidates who could have done this roaming the streets out there.” He also 

emphasized that C.L. was “a crack dealer,” had been convicted of manufacturing 

and delivery of a controlled substance, “may be in the penitentiary in not too long,” 

and had “put himself in the crack business, the gang business and the violence 

business.” In addition, Bishop’s attorney asserted that Lozada was not credible 
8

because she was addicted to drugs and had previously been convicted of making a 

false report to a police officer. He also argued that the assailant may have been a 

member of C.L.’s gang or a rival gang, but he did not mention the alibi evidence.

The State emphasized C.L.’s out-of-court identification of Bishop as the 

assailant; Bishop’s confession to Lozada and the evidence that corroborated her 

report to the police; and the alibi witnesses’ interest in the outcome of the trial as 

compared to Lozada’s disinterested position. 

The jury found Bishop guilty of aggravated assault with a deadly weapon 

and assessed punishment. Bishop appealed. 

Analysis

I. Sufficiency of the evidence

In his first issue, Bishop argues that the evidence was legally insufficient to 

support the jury’s verdict because neither C.L. nor Lozada were credible witnesses, 

he presented some evidence of an alibi, and no physical evidence connected him to 

the crime. 

When evaluating the legal sufficiency of the evidence, we view the evidence 

in the light most favorable to the verdict and determine whether any rational trier 

of fact could have found the essential elements of the offense beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); 

Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The standard is 
9

the same for both direct and circumstantial evidence cases. Carrizales v. State, 414 

S.W.3d at 742; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do 

not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of 

any witnesses, as this is the function of the trier of fact. See Adames v. State, 353 

S.W.3d 854, 860 (Tex. Crim. App. 2011); Wiley v. State, 388 S.W.3d 807, 813 

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). 

Under the Texas Penal Code, a person commits assault if he “intentionally, 

knowingly, or recklessly causes bodily injury to another,” TEX. PENAL CODE ANN.

§ 22.01(a)(1), and he commits aggravated assault if he “causes serious bodily 

injury” or “uses or exhibits a deadly weapon during the commission of [an] 

assault.” Id. § 22.02(a). “A weapon can be deadly by design or use.” Tucker v. 

State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE ANN.

§ 1.07(a)(17)). An object is a deadly weapon if “in the manner of its use” it “is 

capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). “‘Serious 

bodily injury’ means bodily injury that creates a substantial risk of death or that 

causes death, serious permanent disfigurement, or protracted loss or impairment of 

the function of any bodily member or organ.” Id. § 1.07(a)(46).

There was no dispute that C.L. was stabbed multiple times with an ice pick, 

that the ice pick was a deadly weapon, and that serious bodily injury resulted. 

However Bishop contends that some other person committed the assault. At trial 
10

both Detective Tyler and Sgt. Tolls testified that C.L. identified Bishop as the 

assailant in a photographic lineup that they showed him approximately two weeks 

after the assault while he recovered in the hospital. C.L. testified that at the time of 

the assault Bishop was the only other person inside the apartment. Lozada testified 

that Bishop had confessed to her that he had stabbed C.L. at his apartment with an 

ice pick in the eye and attempted to clean up the blood stains with a chemical 

cleaner. Other evidence corroborated her report to the police: C.L. was found in his 

apartment with multiple stab wounds, an ice pick lodged in his eye and skull, and 

an empty bottle of stain remover was found in the kitchen sink. In addition, Lozada 

testified that Bishop was in possession of the salt shaker C.L. used to store and 

conceal crack cocaine.

Bishop argues that C.L. and Lozada were not credible and that the jury 

should have believed his alibi witnesses instead. However, the jury is the sole 

decision-maker when it comes to assessing the credibility of the witnesses. See 

Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Just as a jury’s reliance on 

the testimony of a modern-day Cretan Liar may be legally sufficient to support its 

verdict, so may a jury rely on testimony from witnesses who concede that they 

have been addicted to drugs or have previously been convicted of crimes. See 

Goodman v. State, 66 S.W.3d 283, 285–86 nn.3–5 (Tex. Crim. App. 2001) 

(explaining the semantical paradox of the Cretan Liar and applying it to a review 
11

of the sufficiency of the evidence). Indeed, corroborating evidence—such as 

Lozada’s observation that Bishop had C.L.’s salt shaker, the presence of the empty 

bottle of stain remover in the kitchen sink, and C.L.’s testimony that Bishop was 

the only other person in the apartment at the time that he was stabbed—supports

the jury’s assessment that C.L. and Lozada were credible witnesses. Finally, 

Bishop asserts that there is no DNA or fingerprint evidence to connect him to the 

crime and that the lack of physical evidence makes the jury’s reliance on testimony 

from C.L. and Lozada even more suspect. Viewing the evidence in its totality, 

however, we hold that the jury’s credibility determination was rational without this 

additional evidence. See Goodman, 66 S.W.3d at 286 n.4.

Having reviewed the evidence in the light most favorable to the verdict, we 

conclude that a rational jury could have found beyond a reasonable doubt that 

Bishop intentionally, knowingly, or recklessly caused C.L. serious bodily injury by 

stabbing him multiple times with an ice pick, which left him with permanent vision 

loss and disfiguring scars. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; 

Carrizales, 414 S.W.3d at 742. Accordingly, we hold that the evidence is legally 

sufficient, and we overrule Bishop’s first issue.

II. Exclusion of extraneous-offense evidence

In his second issue, Bishop argues that the trial court erred by preventing 

him from cross-examining C.L. “about his drug selling and other activities for the 
12

Puro Vato Locos gang, crack cocaine sales to people on the day of his stabbing, 

and whether he bartered drugs for sex” because his answers to these questions 

“would have shown his motive and bias to blame [Bishop] for the stabbing instead 

of his gang or Lozada.”

Bishop challenges the trial court’s rulings sustaining objections to four 

questions he posed to C.L. on cross-examination. He asked, “[W]hat other things 

have you done for Puro Vato Locos besides sell drugs?” The State objected on the 

grounds of relevance, Bishop offered no reply or argument, and the trial court 

sustained the objection. Next, he asked if C.L. had committed murder for his gang, 

obtaining an answer despite the court’s ruling on the State’s objection:

Defense Counsel: Have you ever done any murders with the 

Puro Vato Locos?

State: Objection, Your Honor.

Court: Sustained. Approach the bench, please.

C.L.: No, I haven’t.

Bishop’s counsel asked C.L. if “the Vato Locos bring [him] drugs” and if he had 

ever gotten sex in exchange for drugs, and the trial court sustained objections on 

the grounds of relevance. 

At trial, Bishop’s counsel repeatedly questioned C.L. about specific 

instances of conduct, mainly relating to his involvement with the Puro Vato Locos 

gang. Many times the court admonished him that such questioning was improper 
13

and advised him that he would be permitted to make a record later. During one 

such colloquy, Bishop’s counsel explained why he sought to ask C.L. about other 

drug sales on the day of the assault:

Defense counsel: My next question to [C.L.] is going to be how 

many people came by and bought crack cocaine 

that day.

Court: His other drug deals are not relevant to this 

offense. You cannot ask about other specific acts 

of conduct. That is not permitted.

Defense counsel: That negates—that could negate all kinds of

defensive issues that don’t just go towards—

Court: You can ask about other people that came to his 

apartment. You cannot ask about whether he sold 

drugs to them. Do you see the difference?

Defense counsel: I see the difference, but it’s providing him with 

blanket immunity.

. . . .

I’m not trying to impeach his credibility 

necessarily with those acts. I’m trying to establish 

a time line, a chronology of what happened that 

evening. Even conceivably under the Judge’s 

ruling, I would not be able to ask any questions 

about Mr. Bishop because there was a drug deal 

going on there.

Court: No. You’re permitted to ask—those are context—

that’s part of the crime, right? That’s part of what 

was happening. That’s part of how they were in 

contact together. Are you saying that you don’t 

want to ask about prior sales to Mr. Bishop? 
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Defense counsel: No. It’s that—one of our defensive theories, 

perhaps, is that somebody else might have done 

this.

Court: Right. You can ask about that. You can ask who 

else came. You can say somebody else might have 

done this. I think you’ve done that and I think 

you’re doing that. But you cannot ask this witness 

about other crimes that he’s committed that are 

uncharged or unconvicted. Okay? So you can ask 

your questions and you can—you can present your 

defense, but you’ve got to stay within the Rules of 

Evidence.

Later, the court permitted him to make a record pertaining to the excluded 

evidence, and Bishop’s counsel stated:

I would have asked [C.L.] if he had sold crack cocaine that evening to 

different individuals or anyone. I would have asked [C.L.] how many 

individuals he sold crack cocaine to that evening. I would have asked

[C.L.] how much crack cocaine he sold, who these individuals were.

Additionally, I might have asked [C.L.] questions about gang activity. 

I might have asked [C.L.] if he had done things for the gang, criminal 

acts or noncriminal acts, extraneous offenses, that he did for the gang.

That’s all I can think of right at the moment.

We review a trial court’s decision to admit or exclude evidence under an 

abuse-of-discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007). A trial court abuses its discretion when its decision lies outside the 

zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1990). Error may not be predicated on a ruling excluding evidence 

unless it affects a substantial right and the substance of the evidence was made 

known to the court by offer, or was apparent from the context within which 
15

questions were asked. TEX. R. EVID. 103; see Mays v. State, 285 S.W.3d 884, 889 

(Tex. Crim. App. 2009). When a trial court denies a defendant the right to elicit 

specific responses from a witness, to preserve error he must make a record of the 

specific questions he would have asked and the expected answers to those 

questions. Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.] 

2005, pet. ref’d). However, when a defendant is denied an opportunity to inquire 

about an entire subject matter that may have impeached the witness’s credibility—

such as evidence showing malice, ill will, motive, or bias—it is sufficient for the 

defendant to make a record of the subjects upon which he wished to question the 

witness. Id.

Specific instances of conduct may not be used to impeach a witness’s 

credibility, except insofar as the witness may have been previously convicted of a 

felony or crime of moral turpitude, and in accordance with the Rules of Evidence. 

See TEX. R. EVID. 608(b) & 609. Rule 404 prohibits the admission of evidence of a 

person’s character or character trait for the purpose of proving action in conformity 

therewith. TEX. R. EVID. 404(a). “However, the rules of evidence do permit a 

witness to be cross-examined on specific instances of conduct when they are used 

to establish his specific bias, self-interest, or motive for testifying.” Hammer v. 

State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). Evidence of “other crimes, 

wrongs or acts” may be “admissible for other purposes, such as proof of motive, 
16

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

or accident.” TEX. R. EVID. 404(b). But when the proponent seeks to use evidence 

of other crimes, wrongs, or acts to show that the witness is biased or has some 

motive for testifying against the defendant, the proponent must show that the 

extraneous-offense evidence is relevant by “demonstrating that a nexus, or logical 

connection exists between the witness’s testimony and the witness’s potential 

motive to testify in favor of the other party.” Woods v. State, 152 S.W.3d 105, 111 

(Tex. Crim. App. 2004). Such a motive may be shown, for example, when a 

witness has been indicted or is on community supervision and “is placed in a 

vulnerable position and may have a motive to testify in favor of the State.” Id.

In the trial court, Bishop argued that the extraneous-offense evidence was 

necessary to establish a timeline and to advance the defensive theory of 

misidentification, i.e., that someone else committed the assault. On appeal, Bishop 

argues that the extraneous-offense evidence was admissible for a non-character 

conformity purpose such as to show that C.L. was biased or had a motive to lie. In 

addition—except as to the question about whether C.L. had committed murder for 

the gang, to which he answered “no”—there is no record as to what testimony 

Bishop expected C.L. to give in response to the excluded questions. Nothing in the 

record shows how C.L.’s testimony would have been relevant to show that he was 

biased against Bishop or motivated to lie for the State. 
17

To the extent that Bishop may have intended to show that C.L. was not 

credible because he was biased or had a motive to lie in order to hide the identity 

of other drug clients or protect others, his offer of proof would be sufficient to 

preserve that complaint. See Ho, 171 S.W.3d at 304. However, the “trial court 

maintains broad discretion to impose reasonable limits on cross-examination to 

avoid harassment, prejudice, confusion of the issues, endangering the witness, and 

the injection of cumulative or collateral evidence.” Lopez v. State, 18 S.W.3d 220, 

222 (Tex. Crim. App. 2000). The general area of inquiry that Bishop identified on 

the record was C.L.’s gang activity and the volume of drug sales he made from the 

apartment. The record includes evidence that C.L. had been a gang member since 

he was 12 years old, engaged in illegal drug sales, and protected himself with a 

loaded gun while doing so. Detective Tyler testified that a neighbor reported seeing 

as many as 18 people come and go from C.L.’s apartment in the two days 

preceding the stabbing. Evidence pertaining to Bishop’s desired area of inquiry had 

already been properly admitted, and the trial court would not have erred by 

excluding this cumulative cross-examination evidence. See id.

We hold that the trial court did not abuse its discretion by excluding this 

evidence, and we overrule this issue. 
18

III. Admission of the ice pick

In his third issue, Bishop argues that the trial court erred by admitting the ice 

pick into evidence because the State did not establish a proper chain of custody. As 

with the previous evidentiary issue, we review the trial court’s ruling admitting this 

evidence for an abuse of discretion. See Layton v. State, 280 S.W.3d 235, 240 

(Tex. Crim. App. 2009).

Generally, all relevant evidence is admissible. TEX. R. EVID. 402. “Relevant 

evidence means evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” TEX. R. EVID. 401. When 

determining if proffered evidence is relevant, the court must consider whether 

there is a logical connection between the evidence and the proposition sought to be 

proved. Layton, 280 S.W.3d at 240. In the absence of evidence of tampering or 

alteration, proof of the beginning and end of the chain of custody will generally 

support admission of the evidence. See Stoker v. State, 788 S.W.2d 1, 10 (Tex. 

Crim. App. 1989), disapproved of on other grounds by Leday v. State, 983 S.W.2d 

713 (Tex. Crim. App. 1998). “Absent evidence of tampering, issues regarding the 

chain of custody bear on the weight, rather than on the admissibility, of evidence.” 

Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010); see McGregor v. 

State, 394 S.W.3d 90, 126 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
19

Bishop argues that the State failed to show the beginning of the chain of 

custody because it did not present a witness from the hospital. However, medical 

records that were introduced without objection indicated that an ice pick was 

lodged in C.L.’s skull when he was admitted to the hospital. Further, Sgt. Tolls 

testified, also without objection, that he received the ice pick at the hospital from a 

person who said it had been removed from C.L.’s head. There was no evidence of 

tampering in this case. Because there was proof of the beginning and the end of the 

chain of custody, we hold that the trial court correctly admitted the ice pick. See 

Stoker, 788 S.W.2d at 10. We overrule this issue. 

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).