### IN THE TENTH COURT OF APPEALS
No. 10
- 17
- 00345
- CR
ADAN GAONA , Appellant v. THE STATE OF TEXAS , Appellee

From the 18th District Court Johnson County, Texas Trial Court No. F50651

MEMORANDUM O P I N I O N
Appellant Adan Gaona was co nvicted by a jury of the offenses of murd er and tampering with a human corpse. Gaona entered a plea of guilty to a separate char ge of possession of betwee n five and f ifty pounds of marihuana . The jury assess ed punishment on all three counts

— life imprisonment for the murder charge, twenty
years ’ imprisonment for the tampering with a human corpse charge, and ten years ’ imprisonment for the marihuana charge. All sentenc e s wer e ordered to run concurrently , and a separate judgment was entered for each offense

.Gaona v. State Page 2 After briefing was concluded in this appeal, we directed Gaon a ’ s appellate
counsel to file an amen ded brief bec a u s e the marihuana convi ction wa s not addressed
in the initial brief. W e directed counsel to address an y alleged error attributable to that
conviction or to file an Anders

- type motion to withdraw and supporting brief. Se e Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). Gaon a ’ s counsel complied and filed a supplemental brief. The Sta te then filed a supplemental reply
brief. Gaona subsequently obtained new counsel who has filed a second supplemental
brief , and the State has also filed a second supplementa l reply brie f

. Gaona ra ises a total
of six issues in his variou s briefs. We will affirm.
Ba c kground Johnson County authorities were notified by Gaona ’ s sister that h e r stepfather, Antonio Galvan, was missing. The sister told autho rities that Gaona was in possessio n of Galvan ’ s tr uck and cell phone and that she fear ed Gaona had harmed Galv an
. Deputi es went to the rural property outside Alvarado where Gaona resided to investigate

. Gaona denied any knowledge of Galvan ’ s location. However, the truck
Galv an ordinaril y used was p arked o n the property , and t he de puties observed that
Gaona was sw eat ing heavily and covered in dirt

. Deputies contacted Gaona ’ s mothe r, the registered owner of the truck , who told them that Gaona did not have permission to
drive t he truck. G aona was pla ced under arrest for d riving the truck without

aut ho rizatio n , and he was tra nsported to the Johnson County Law Enforcement Center. During booking, officers discovered a plastic baggie in Gaona ’ s pocket containing threeGaona v. State Page 3 spent shell casings. De puties also discovered a marihuana grow operation set up in th e
mai n ho use on the proper ty. The marihuana was valued at over $100,000. Deputies recovered Galvan ’ s body the next day after a more exte nsive search of
the property. Galvan ’ s body was partial ly covered w ith dirt and leav es an d was located
next to a fres hly d ug g rave. Galvan ’ s body was transported to the Tarrant County
Medical Examiner ’ s Office for an autopsy. The a utopsy revealed two gunsho t w ounds
to the face

— one to the lef t eye and one to the left che ek. Another gu n shot wound was located in the left chest/shoulder area. The two head shots were both fata l wou nds.
Bullet fragments recovered from Galvan ’ s body and the shell ca sings taken from
Gaon a ’ s p ocket were consistent with .38 caliber ammunitio n. Russell L utz, who lived in
a mobile home on t he Alvarado property and assisted in the marihuana

- grow operation, told deputies that Gaona possessed a .38

- caliber pistol and that Gaona had
admitted shooting Galvan

. Lutz was also tak en into custody and sub s eque ntly charged with possession of marihuana and tamp ering with evidence.
Issues
In his initial brief, G aona presents the following issues:
1. The trial court erred in accepting the jury ’ s verdict as the ev idence was insufficient to support the con victio n for murder.
2. The t ria l cour t erred in accepting the jury ’ s verdict as t he evidence wa s insufficient t o support the conviction for tampering with evidence

— corpse. In his first supplemental brief, Gaona presents the following is sue:Gaona v. State Page 4 1

. The trial court erred in accepting th e jury ’ s punishment verdict s as they violat e th e constitutional provi sio n agains t cruel and unusual punishment. Gaona presents the following issues in his se cond supplemental brief:
1. The evidence was legally insufficient to support the verdict for murder because (1) the evidence did not show that Ga ona killed Galvan as a principal or a party , and (2) the evidence did not show that Gaona act ed with the required mental state.
2. The tr ial court erred in excludi ng evidence that Galvan sexually assaulted Gaona ’ s family me m bers

. 3. The trial court erred in instructing the ju ry that Gaona could be found guilty as a party to Galv an ’ s murder.
Discussion
A. Sufficiency of the Evidence

. The Co urt of Criminal Appeals ha s expressed
our stand ard of review of a sufficiency issue as follows:
Whe n a ddressing a c hall enge to the suffic iency of the evidence, we consid er w h et her, after viewing all of the evidence in the lig ht most favorable to the ver dic t, any rational trier o f f act could have found the essential elements of the crime beyond a reasona ble doubt. Jack son v. Virginia , 443 U .S. 307, 319, 99 S. Ct. 2781, 61 L. E d. 2d 5 60 (1979); Vi lla v. State , 514 S.W.3d 227, 23 2 (Tex. Crim. App. 2017). T hi s standard requires the ap pellate court to defer "to the responsibility of the trier of fact fairly to resolve confl ict s in the testimony, to weigh the evidence, and to d raw r e asona ble inference s from basic facts to ultimate f a cts." Jackson , 443 U.S. at 3 19 , 99 S.Ct. 2781 . We m ay not re

- weigh the evid ence or substitute our judgment for that of the fac tfi nder. William s v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)

. Th e cour t conducting a sufficiency review must not en g age in a "divide and conque r" strategy but mus t consi de r the cumulative force of all the evidence. Villa , 514 S.W.3d at 232. A lth ough juries ma y not speculate about the meaning of facts or evidence , j ur i es ar e permitted t o draw any reasonable inferences from the facts so long as e ac h inference is su pported b y the evidence present ed at trial. Cary v. State , 507 S.W.3d 750, 757 (T ex. Crim. App. 20 16) ( citing Jackson , 4 43 U.S. at 319 , 99 S.Ct. 2781 ); see a l so Ho oper v. State , 214 S.W.3d 9, 16

- 17 (Tex. Crim

. App. 2007). We presume th at the factfinder r esolved a ny conflicting inferen cesGaona v. State Page 5 from the evidence in favor of the verdict, and we defer to that resolution. Merritt v . State , 368 S.W.3d 516, 525 (Te x. Cr i m. Ap p. 2012). Th is is because the jurors are the exclusive judges of the fac ts , the credibility of the w itnesses, and the weig ht to be given to the testimony. Brooks v. State , 323 S.W.3d 893, 8 99 (Tex. Crim. App. 20 10). Direct evidence and circum sta nt i al ev idence are eq ually probative, and circumstant i al evidence alone may be su ff icient to uphold a convi ct ion so long as the cum ulative force of all the incriminating circumstance s i s sufficient t o support the convicti on. Ramsey v. State , 473 S.W.3d 80 5, 809 ( Tex. Crim. Ap p. 2015); Hooper , 214 S.W.3d at 1 3.
We measure whether the e vidence presented at tri al was sufficient to sup port a conviction by comparing it to "the elements of the offense as defined by the hypoth etically correct jury charge for th e c ase." Malik v. St ate , 953 S.W.2d 234, 240 (Tex. C r im. App. 1997). The hypoth et ically correct ju ry char ge is one that "accurate ly sets out the law, is authorized by the indictmen t, does not unnec essarily increase the State's burden of proof or unnec ess ar i ly re strict the St ate's theories of liability, and adequately describes the pa rt icular offense fo r which t he defendant was tried ." Id. ; see also Daugherty v. State , 387 S.W.3d 65 4, 665 (Tex. Crim . App. 2013). The "la w as authorized by the indictmen t" in c ludes the statutor y elements of the offense and th o se elements as modified by th e indictment. Da ugherty , 387 S.W.3d at 665.
Zu niga v. State , 551 S.W.3d 729, 732

- 33 (Tex. Crim. A pp. 2018).
1

. Murder

. A person comm its murder if he “ intentionally o r kno wing ly

c auses the death of an individual ” or “ intends to cause serious bodi ly injury and
commits an act clearly dangerous to hum an life that cau s es the death of an individual. ”
T EX
. P ENAL C ODE A N N
. § § 19.02(b)(1) , (2). Kn owledge and intent are almost alwa ys
pro ve n by circums tantial evidence and may be inferred from a person's acts , words, and conduct, as w ell as the surrounding c ircumstances. Guevara v. State , 152 S.W.3d 45, 50 ( Tex. Crim. App. 2004). A jury may infe r sp ecific intent to kill from use o f a de ad ly weapon in a deadly manner

. Adanandus v. State , 866 S.W.2d 210, 21 5 (Tex. Crim. App. 1993)

. A handgun is a dea dly wea pon “ and when used by a defendant an intent to killGaona v. State Page 6 is presumed. ” Williams v. State , 567 S.W .2d 507, 509 (Tex. Crim. App. 1978) ; see also
Watkins v. State , 333 S.W.3d 771, 781 (Tex. App.

— Waco 2010, pet. ref ’ d)

. Additionally, motive is a significant circu mstance indicating guilt

. Guevara , 152 S.W.3d at 50.
Gaona does not contest that Galv an was murder ed

. In his initial brie f, Gaona
asserts that he did not commit the murder

. In his second supplemental brief, Gaona
asserts that the evidence was insuffici ent to establish that he was the one who shot
Galvan

— that th e evidence only sup ports a finding that Gaona acquired the knowledge
of Galvan ’ s d eath af ter the fact. Gaona also asserts that , even if the evidence permitted the jury to find that he was the sho oter, the evidence did not establish that Gaona acted intentionally or knowingl y. Gaona contends that if he shot Galvan, the shooting was not intentional because Galvan was not shot at c lose range. Thus, Gaona argues, “ there is no evidence that, if [Gaon a] was the shooter, he knew that he was firing toward [ Galvan] or even that he knew [Galvan] was downrang e fro m the gun. ”
There were no witn ess es to the murder. Th e f irearm that was use d to commit the

m urder wa s not found by law enforcement . The shell casin gs recovered from Gaona ’ s pocket contained no fingerprints , and th e shell casings were not subjecte d to DNA analysis

. At the time of his ar rest, Gaona had no blood on his hands, clot hing, or sho es. Howeve r, ther e was sufficient circumstantial evide nce to support the jury ’ s verdict. As previously note d, circumstant i al evidence alone may be suff icient to uphold a convict ion so long as the cumulative force of all the incriminating circ umstance s i s sufficient t o support the convicti on. Ramsey , 473 S.W .3d at 809

.Gaona v. State Page 7 The evidence at trial established that Gaona ’ s mother lease d property close to
Alvarado contain ing a house and approximately twenty

- two acres . Gaona moved into the house on the property shortly after the lease was finalized. Galvan had vis ited the
proper ty on one occasion while the lease was being negotiated

. Gaona ’ s mo ther and sister testified that Galvan left his home in Arlington at approximately noon on Saturday, May 21 st to assist Gaon a with some plumbing issues

at the Alvarado proper ty

. Galvan told Gaona ’ s mother that he would call Gaona when he was close to the property becaus e he did not know ho w to get there. No one other
than Gaona admitted to seeing Galvan alive after that time.
Gaona drove to his si ster ’ s apartment in Arlingt on around 2 :00 p.m. in Galvan ’ s truck. Gaona told his sister that they needed to go talk to their mother because Gaona and Galvan had an argument and Galvan ha d “ walk ed away. ” Gaona ’ s sister then
drove Gaona to their mother ’ s home. Gaona ’ s mother and si ster informed investigating
officers th at Gaona tol d them the following: (1) Gaona and Galvan argued over the presence of the marihuana

- grow operation at the Alvarado pro perty ; ( 2 ) Gaona took
Galvan ’ s phone to prevent Galvan from taking ph otographs of the marihuana

- grow operation ; and ( 3 ) Galv an lef t the Alvarado property w ithout his truck or cell phone and was not coming back

. Gaona first told them that Galvan dro ve away in his truck after the argument , but then said that Galvan walked away when confront ed with the
fact that his sister saw hi m drivin g Galvan ’ s truck. Gaona also threatened to kill himself
in front of his mother and sister rather than go to jail i f they called the police

.Gaona v. State Page 8 Gaona ’ s si s ter drove to the Alvarado property to look for Galvan , b ut no one was there. When the sister r eturned to her apartment, Ga lvan ’ s truck wa s gone. Gaon a ’ s sister contacted law enforcement on Sunday , May 22 nd at their mother ’ s urging to report Gal van missing.
Lutz testified that w hen he left the Alvarado pr oper ty on the morning of May 21st, he saw n o one on the property , in cludi n g Gaona or Galvan. After Lutz returned
l ater that evening, Gaona dro v e up in a white pickup truck. When Lutz inquired about the truck, G aona told him that it be l onged to Ga lvan and tha t Galva n was “ dead out in
the woods

. ” The next morning, Lutz found G a lvan ’ s body in the woods about one hundred yards behind the main house

. Lutz and Gaona took steps to bu r y Galv an ’ s body in the woods. In a statement to investigating officers, Lutz sai d that Gaon a admitted shooting
Galvan

. Lutz was less clear about th is ex change when he testified but admitted making
th e stat e ment to investigators. Lutz testified that Galvan had a .38 handgun. Gaona
testified that Juan, also known as “ Prim o ” and who w as an associate of a drug carte l, kept a .38 revolver and other weapons on the Alvaredo prop erty

— “ that was his weapons for the house. ” A Texas Ranger , who assisted in the investiga tion, questioned Gaona . The Ranger told Gaona that Galvan ’ s body had been discovered

. Gaona responded th at he
di d not own a gu n. A t t hat point, it was unclear h ow G alvan had been killed. Gaona had no explanation for the shell casings in his pocket other than that he was wearing Lutz ’ s pants.Gaona v. State Page 9 In a recorded jail conversation b etween Gaona and his oldest sis ter , Gao na asked
her to tell the witnesses w ho testified on h is behalf to f ollow his l aw yer ’ s def en se strategy even if they had to lie.
Gaona raised two defenses at trial: (1) he had an alibi for the time Galvan was
murder ed; and (2) the drug cartel had Ga lvan killed because he was skimming money
from the ir drug operatio n. Gaona ’ s ali bi defense was not supported by the evidence. T he medical examiner
testified that it was impossible to as cer tain the actual time Galvan was k illed , but the
condition of the body w as consistent with Galvan being killed on May 21st.
Gaona te stified that he got into the drug trafficking business because of Galvan.
Gaona introduced Galvan to Primo , and Pr im o and Galvan subsequently began partner ing in local drug distribution. Gaon a te stified that he was Galvan ’ s “ mul e ”

— that he would deliver drugs and collect money at Galvan ’ s behest. Galvan leased the Alvarado property for the purpose of grow ing marihuana and using it as a base for distributing drugs

. Lutz , a long

- time associate of P rimo, moved onto the Alvarado property to take care of the marihuana

- grow operation.
Ga ona testified that the Alvarado property becam e a major distribution center for drugs smuggled from Mexico by the drug cartel

. Gaona testified that the drug cartel

s uspected Galva n of s tealing money from the organization and that the leader of the drug cartel , visited the Alvarado property on Friday, May 20 th and announced his
intention to kill Galvan. Also present at the discus sion were Primo and two others.Gaona v. State Page 10 Beside s the cartel leader, none of the others were members of the cartel, merely
associates. Gaona testified that on Saturday, May 21st he was directed by Galvan to deliver a shipment of nar cotics to an individual in Arli ngton. Gaona used Galvan ’ s truck to

mo ve the drugs and left the truck with the keys and drugs inside at his si ster ’ s apartment c omplex. Gaona then had his si s ter drive him to his mother ’ s residence

. Gaona admitted that he lied to his mother and sister a bout Galvan ’ s location in order to keep his drug activities conc ealed , but de nied that they had any type of argument

. Gaona then got a ride from a friend back to his sister ’ s apartment

. Gaona testified that the drugs inside the truck had been exchanged f or approximately $250,00 0 in cash.
Gao na then transported the m oney back to the Alvarado property in Galvan ’ s truck. When Gaona arrived, he saw no one on the property. Gaona tes tified that he placed the money in the house and then left again to assist h is brother who had a flat tire. When
G ao na returned home, only Lutz was there , and Gaona went to bed.
Gaona testified that the first he learned of Galvan ’ s murder was the next morning, Sunday , May 22nd, when Lutz woke him up to tell him that Primo had ki lled
Galvan. Gaona testif ied that he w as afraid to call the pol ice because of the drug operation, but that he did go with Lutz to Lowe ’ s. Gaona gave Lutz $100 but testified that it was for work Lutz had done with the marihuana on Saturday. Gaon a further

test ified that the grave was mostly du g by Lutz a n d that he saw Galvan ’ s body f or the
first time when he assisted Lutz in enlarging the grave.Gaona v. State Page 11 T he only evidence linking Galvan to the cartel wa s Gaona ’ s testimony. A DPS agent who instructs other law en forcement officers regarding the Mexica n drug cartels,

t es t ified that the facts of Galv an ’ s murder were inconsi stent with the typical murder
commi tted by the cartel

. The ag ent als o testified that the marihuana

- grow operation on the Alvarado property did n ot comport with a usual cartel drug ope ration. In the agent ’ s experience, the cartel would have security around any narcotics operation , and there was no security present on the Alvarado property. Also, the cartel would not
allow non

- cartel individuals t o s tore their drugs or their money

. No r was there such a thing as being an associate of the cartel

— “ Y ou ’ re either in it or you ’ re not. ” In t he agent ’ s experience, someone caught stealing from the cartel would be subjected to a
gruesome death that would b e public ly displayed as an example , not merely being shot
and bur ied in the wood s
. As noted, Gaona ’ s second supplemental brief argues that Gaona did not shoot Galvan intentionally and know ingly because Galvan could have been shot from a distance making t he shooting somehow accidental . The ju ry was entitled to infer
G aona ’ s intent to kill Galvan from the two closely placed gunshots t o the face

. A dditionally, there is no evidence, not even in Gaona ’ s testimony, that G aona was indiscriminately shooting on the Alvarado property while Galvan was there on Saturday, May 21s t

. As noted, d i rect and circumsta nti al ev idence are eq ually probative . Viewing all
the evidence in the l ight most favorable to the verdict, the jury could rationally find th at
G aona murde red Galva n with a fi rearm be yond a reas onable dou bt. U ltimately, theGaona v. State Page 12 iss ue is one of credibility, and, by th eir ve rdict, the ju ry did not find Gaona credible.
We overrule issue one in Gaona ’ s initial brief and issue one in Gaona ’ s second suppl e men tal br ief

. 2. Tampering with a corpse
. Se ct ion 37.09 of th e Penal C ode provides that
a person co mmits an offense if th e person , “ knowing that an offense has been
committe d , alters, destroys , or conceals any
. . . thing with intent to impair its verity, legib ility, or availa bi lity as evidence in a ny sub sequent inves tiga t i o n of or official proceeding related to the of f ense
. ” T EX
. P ENAL C OD E A NN
. § 37.09( d)(1) ; Hines v. State , 535 S.W.3 d 102, 109 (Tex . App.

— Eastlan d 2017, pet. ref ’ d)

. The offense becomes a
fe lony of t he se cond degree if the thing concealed is a human corps e. T EX
. P ENAL C ODE
A NN
. § 37.09(c). “ A ctual concealment requ ires a showing that the allegedly concealed
i tem wa s hidden, remove d from sight or notice, or kept from discovery or observati on. ”
Stahmann v. State , 548 S.W.3d 46, 57 (Tex. App.

— C orpus Ch risti

– Edinburg 2 018) , aff ’ d

, 6 02 S.W.3d 573 ( Tex

. Crim. App. 2020)

. G ao na admitted durin g his testimony that he knew Galvan had been murdered , that he and Lutz dug the gra ve to bury Galvan ’ s body , that he accompanied Lutz to
Lowe ’ s to buy lime, and that he g ave Lutz the $100 used to b uy the l ime

. Lutz testified that Gaona told him that Gaona had shot Galvan and that Galvan ’ s body was in the woods behind the house. Lutz further testifie d that when he first
found Galva n ’ s body , it was covered wi th “ bushe s
. ” Investigat in g officers testified that there were two piles of dirt next to th e open grave and that Galvan ’ s body was partial lyGaona v. State Page 13 covered b y one p ile that was also li ttered with lim bs an d debris. Lutz further testified that Gaona gave him the $ 100 specifically to buy th e lime. The jury could infer from the foregoing that Gaona shot Galvan then covered
Galvan ’ s body with brush to delay the body ’ s discovery. The jury could also i nfer that
Gaona ass isted Lutz in concealing Galva n ’ s body, knowing that Galvan had been
murde red, in order to prevent Galvan ’ s body from being dis covered . Applying the
ap propriate standard o f review, we hold t hat the evidence is sufficient to s upport
Gaona ’ s c onviction , eit her as a principal or a party, for tampering wit h a corpse.
We overrule i ssue two in Gaona ’ s initial brief

. B. Cruel and unusual punishment

. Gaona ar gues tha t h is se ntence was not proportional to the offense committ ed, violating his rights under the Un it ed States and
Te xas Co nstitution s to be free f rom cruel and unusual puni shment. See U.S. C ONST

. amend

. V I II, XIV ; T EX
. C ONST

. art. I, § 13. Specifically, Gaona argue s that because he was given the maximum sentence on each count, his sentence “ exceeds t he sentence imposed on other criminals in the sa me jurisdiction and the se ntence imposed for commission of the same crime in other jurisdictions. ” A disproportionate se nt ence claim must be preserved for a ppellate review either
b y objecting when the senten ce is imp osed or by raising the claim i n a timel y - filed
motion for new tri al. T EX
. R. A PP
. P. 33.1(a )(1); Castaneda v. State , 135 S.W.3d 719, 723 (Tex. App.

— Dallas 2003 , no pet. ) ( “ Constitutional rig hts, including the right to be free
from cru e l and unusu al punishme nt, may be waived ” ) ( citing Rhoades v . State , 934 S.W.2d 113, 1 20 (Tex. Crim. App. 1996) )

. Gaona did not raise this objection at the timeGaona v. State Page 14 sentence was imposed . G aona filed a motion for new trial, but it contained only the general contention th at his senten ce was “ contrary to the law and the evidence. ” In order to preserve error for appellate review, the record must show th at a n objection ” stated the grounds fo r the ruling that the complaining party sought from the

t rial court with sufficien t specificity to make the t rial court aware of t he complaint, unless the specific grounds were apparent from the co nt ext. ” T EX
. R. A PP
. P. 33.1(a)(1)(A). A point of error o n appeal must comport with the objection made at trial,
and a party ’ s failure to p roperly objec t can result in the for feiture o f even a constitu tional error

. Clark v. State , 365 S.W.3d 333, 339 (Tex. Cri m. A pp. 2012).
While n o “ hyper

- technical or formalistic use of words or phrases ” is required in order for an objection t o preserve an error, the object ing party must stil l “ let th e trial judge know what he wants, why he thinks he is e ntitled to it, and to do s o clearly enough f or the judge to understand him at a time when the judge is in the proper position to do something about it. ”
I d

. ( quoting Pena v. State , 285 S.W

. 3d 459, 464 (Tex. Crim. App. 2009) )

. A general complaint like the one raised in Gaona ’ s motion for new trial does not
preserve error for app ellate review. See Rhoades , 934 S.W

. 2d at 1 19 ( “ We have long held that, for a n is sue to b e pre served on appeal, there must be a t imely objection which specifically states the legal basis for that objection. ” ); s ee also Castaneda , 135 S.W

. 3d at
72 3 n.1 ( p hrase “ the verdict is contrary t o the law and the evidence ” in motion for new
trial insufficien t to preserve issue fo r appeal); Ne al v. State , No. 05

- 19

- 006 99

- CR, No. 05

- 1 9

- 0 0824

- CR, 2020 WL 395819 2, at *2 (Tex. App.

— Dallas July 13, 2020, no pet.) (mem.
op ., not designated for publicati on) (general complaint that “ verdict is contrar y to theGaona v. State Page 15 law and the evidence ” in motion for new tri al insufficient to preserve complaint that
p unishment was excessive )

. We overrule issue one in Gaona ’ s first supplemental brief

. C. Eviden ce of Sexual Assau lts Committed by Victim

. In the second iss ue in hi s

sec ond supplemental b rief, Gaon a assert s that the trial court erred in excluding
evidenc e that Galvan sexuall y assaulted several members of Gaona ’ s family.
We rev iew the trial court ’ s ruling on th e admission of evidence for an abuse of
discret ion. Gonzale z v. Sta te , 544 S. W.3d 363, 370 (Te x . Crim. App. 2018) ; see also De La
Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) ( “ [A] trial court ’ s ruling on the admissibility of extraneous offense s is reviewed under an abuse of discre t i on
sta ndard

. ” ). “ U nder this standard , the trial c ourt ’ s decision to admit or exclude evidence will be up held as lon g as it was within the ‘ zone of reaso nab le disagreement. ’ ”
Beham v. S tate , 559 S.W.3d 474, 478 (Tex. Crim. App. 2018) (citing McGee v. State , 233
S.W.3d 3 15, 318 (Tex. Crim . Ap p. 2007))

. “ I f th e trial court ’ s evidentiary ruling is correct under any applicable theory of law, it will not be disturbed even if the trial c ourt gav e a wrong or insuffici ent reason for the ruling. ” Johnson v. State , 490 S.W.3d 895, 9 08 (Tex. Crim. App . 2016).
The tria l court granted the State ’ s motion i n limine to exclude any “ alleged bad

acts ” committed by Galvan

. The State objected when G aona attempted to testify regarding the sexual allegations against Galvan , arguin g that the ev idence was not
relevant because it h ad nothing to do with the stat e of mind of either Gaona or Galvan

. During a voir dire exami nation, Gaona testified that he to ld the cartel crew aboutGaona v. State Page 16 Galvan ’ s sexual abuse of his relatives and that Primo sa id he was goin g t o “ execute ”
Galvan. The S tate a gain argued that any allegations of sexual abu se by the victim were not relevant and that any testimony that someone may have s aid, “ I ’ m going to kill
him ” is inadmissible hearsay. When the trial court inqu ired as to whe the r the proposed testimony was bas ed on h earsay, Gaona ’ s attorney responded that the statements
consisted of “ presen t sense impression ” and “ excited utterances. ” The trial court
sustained the State ’ s objection regarding allegations of sexua l abuse

. Gao n a d oes n ot challenge the exclusion of th e evidence under Rule 404(b), b ut rather asserts that the evidence should have been admissible as relevant under Rule 401. Gaona specifically argues that his mother ’ s testimony that Galvan went to the Alvaredo
prope rty on May 21st to address a plumbi ng issue “ contra dicted and undermined [ Gaona ’ s] claim that [Galvan] was deeply involved in the narcotics trade and at the Prope rty for that reason. ” Under Gaona ’ s theory, if he had been allowed to offer pro of
that Galvan sexually abused family members who se outcries were ignored by Gaon a ’ s mother , that would have led to the conclusion that she would also “ have accepted or ignored [Galvan ’ s] involvement in drugs. ” Gaona ’ s assertion is that [i] f [Gaona ’ s mo ther] tolerate d/supported [Galvan ’ s] illegal cond uct and [Galvan] had reasons associated with the illegal drug trade to vis it the Property, then the proffered tes t i mony [regard ing the sexual abuse] had a tendency to make it more likely that [Galvan] was in volved in the illegal drug trade and that his mur der resulted from “ skimming ” from the cartel.
The issue Gaona r aised in the trial court is not consistent with the issue rais ed in this appeal and is, therefore, not preserved. See T EX
. R. A PP
. P. 33.1(a) (1)(A); see al so Clark , 365 S.W.3d a t 339. In or der to preserve an issue for appellate review, aGaona v. State Page 17 complaining part y must make a specific objectio n that co rresponds with the obj ection s and arguments made a t trial. See Dixon v. State , 2 S.W.3d 263, 273 (Tex . Crim. App. 1998) (op. on reh ’ g)

. We over rule i ss ue two in Gaona ’ s second suppleme ntal brief

. D. Jury Charge Error . Gaona argues that t he trial court erred in giving a n
ins t ruction regarding the law of parties because the evidence did not support su ch a charge as it re lated to the charge of murder. G aona did not r aise this objection at trial. The jury charge gave a general law of parties instruction and applied it to both

t he murder charge and the tampering with evidence charge. Gaona does not obj ect to the instruction as it rela tes to the tam pering charge. Assuming without deciding that the trial court erred, we must then analyze the
error for harm. Brock v. State , 495 S .W.3d 1, 13 (Tex. App.

— Waco 2016, pet. ref ’ d). If error was not preserved b y a proper objection, reversal will be granted only i f the error presents eg regious harm; meaning that the app ellant did not receive a fair and impartial
trial. Id

. If the eviden ce clearly supports a defendant ’ s gu ilt as a principal actor, any error
of t he trial court in chargin g on the law of parties is h armless. Cathy v. S t ate , 99 2 S.W.2d
460 , 466 (Tex. Crim. App. 1999); see also Ladd v. State , 3 S. W.3d 547, 56 5 (Tex. Crim. App.
199 9) ( “ [B] ecause there w as no evidence tending to show appellant ’ s guilt as a party, the jury almost certainly did not rely upon th e parties instruction in arriving at its verdict, but rather based the ve rd ict on th e evidence tending to show ap pellant ’ s guil t as a principal acto r
. ” ) ; see also Walter v. State , 588 S.W.3d 682 , 68 8 (Tex. App.

— EastlandGaona v. State Page 18 2019 , pet. ref ’ d ) ( “ An ap pellant is not harmed b y the inclusion of an instruction on the law of parties if the jury ‘ almost certainly did not rel y upon the parties instruction in

ar riving at its verdict, bu t rather based the verdict o n the evidence tending to show appellant ’ s guilt as a principal actor. ’ ” ) (quoting Ladd , 3 S.W.3d at 565) ; Nunez v. State , 215 S.W.3d 537, 544 (Tex. App.

— Waco 200 7, pet. r ef ’ d) ( “ [W]hen the evide nce clearly supports a defendant ’ s g uilt as a principa l actor , an error in charging on the law of parties is harmless

. ” ). The evidence, as previously outlined, cl early supported Gaona ’ s guilt as a principal not as a part y. There was no evidence in the record that Gaona was a party to Gal van ’ s murder nor was any such argument made by either the State or Gaona

. Even
i f th e trial court erred in char ging on the law o f parties as it relat es to murder, such error
is harmless because the evidence clearly supports Gaona ’ s guilt as a principal to
Galvan ’ s murder.
We ove rrule issue three in Gaona ’ s second supplemental brief

. C o nclusio n Having overruled all of Gaona ’ s iss u es, we affirm the judgme nts of t he tr ial

court

.

MATT JOH NSON Justic eGaona v. State Page 19 Be fore Chief Justice Gra y, Jus t i ce Johnson , and Just ice S mith Affirmed Opini on delivered and filed November 3, 2021 Do not publish [ CR PM ]