IN THE

TENTH COURT OF APPEALS

No. 10-22-00159-CR

No. 10-22-00160-CR

No. 10-22-00161-CR

CARLOS ENRIQUE LORDUY, 

Appellant

v.

THE STATE OF TEXAS, 

 Appellee

From the 443rd District Court

Ellis County, Texas

Trial Court Nos. 44583CR, 44584CR, and 44585CR

MEMORANDUM OPINION

Carlos Enrique Lorduy was charged by multiple grand jury indictments with the 

third-degree felony offense of assault upon a person who was a member of Lorduy’s 

family or household by impeding the person’s normal breathing or circulation (assault 

family violence by strangulation), with the second-degree felony offense of aggravated 

assault with a deadly weapon causing bodily injury, with the second-degree felony 
Lorduy v. State Page 2

offense of aggravated assault with a deadly weapon by threat, with the third-degree 

felony offense of continuous violence against the family, and with the felony offense of 

animal cruelty. The jury acquitted Lorduy of aggravated assault with a deadly weapon 

by threat and animal cruelty. The jury found Lorduy guilty of assault family violence by 

strangulation, aggravated assault with a deadly weapon causing bodily injury, and 

continuous violence against the family. The jury assessed Lorduy’s punishment at four

years, eight years, and three years, respectively, in the penitentiary, and the trial court 

imposed sentence accordingly. Lorduy brings this appeal and raises five issues.

Issues One, Four, and Five

In issue one, Lorduy contends that it was a double-jeopardy violation under the 

Fifth Amendment of the United States Constitution and a violation of Penal Code section 

25.11(d) for the State to subject him to multiple prosecutions and multiple punishments, 

purportedly circumventing legislative intent as it relates to allowable units of 

prosecution. Despite the issue as set forth in Lorduy’s brief, Lorduy’s argument is that 

his trial counsel was ineffective for not filing a pretrial motion to quash or set aside the 

indictment and that, as a result, he was punished for the same offense in violation of the 

multiple-punishment protections provided by the double-jeopardy clause of the Fifth 

Amendment. In Lorduy’s fourth issue, he contends that the record as a whole 

demonstrates his trial counsel was ineffective. Lorduy argues that trial counsel failed to 

investigate the victim’s criminal and social history, failed to call an expert witness, failed 
Lorduy v. State Page 3

to file a motion to dismiss under article 32.01 of the Code of Criminal Procedure, and 

failed to conduct pretrial discovery. In Lorduy’s fifth issue, he contends that prior 

appellate counsel was ineffective for failing to properly raise an issue at the hearing on 

his motion for new trial. 

Issue one raises a double-jeopardy complaint and an ineffective-assistance-ofcounsel complaint. We will address the double-jeopardy issue first and then address all 

ineffective-assistance-of-counsel issues together.

Double Jeopardy

Lorduy contends that convicting him of “10 counts . . . violated legislative intent, 

i.e., subject[ed] [him] to double jeopardy.” The “10 counts” referred to by Lorduy are the 

specific underlying acts of bodily-injury assault alleged in the continuous-violenceagainst-the-family indictment. Lorduy’s rationale is that the assault-family-violence-bystrangulation and the aggravated-assault-with-a-deadly-weapon-causing-bodily-injury 

convictions with the continuous-violence-against-the-family conviction exceed the 

allowable units of prosecution. Lorduy relies on Ellison v. State, 425 S.W.3d 637 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.), to support his contention. In Ellison, the State 

charged the defendant in two separate indictments with continuous violence against the 

family. One indictment alleged two specific underlying acts of bodily-injury assault, and 

the other indictment alleged three specific underlying acts of bodily-injury assault. Id. at

640. The problem in Ellison was that the same two underlying acts of bodily-injury assault 
Lorduy v. State Page 4

were repeated in both indictments. Id. at 645. The court reasoned that “a double jeopardy 

violation results if the State attempts to punish [the defendant] for any underlying bodilyinjury assault both under a separate assault count and as part of a continuous family 

violence count.” Id. at 647. The court concluded that the “plain, clear language of section 

25.11 indicates that the allowable unit of prosecution for double jeopardy purposes here 

is a series of at least two bodily-injury assaults committed within a certain 12–months–

or–less period against a single victim in a dating relationship with [the defendant].” Id.

at 648. The court added that “section 25.11 indicates that only one punishment is 

intended in cases of continuous family violence where the specific underlying acts of 

bodily-injury assault upon which the defendant was convicted occurred against the same 

victim and within the same period the continuous family violence occurred.” Id. 

However, “’the scope of [double jeopardy] protection afforded by a prior conviction’ for 

continuous violence against the family thus would not reach any conduct falling outside 

such allowable unit of prosecution, for which [the defendant] had not already been 

punished.” Id. (quoting Bailey v. State, 44 S.W.3d 690, 693 (Tex. App.—Houston [14th 

Dist.] 2001), aff’d, 87 S.W.3d 122 (Tex. Crim. App. 2002)).

In the case before us, the victim is the same in each charged offense. Lorduy’s 

charge of continuous violence against the family alleged ten specific underlying acts of 

bodily-injury assault occurring between January 1, 2018, and June 3, 2018. Lorduy’s 

charge of aggravated assault with a deadly weapon was alleged to have occurred on June 
Lorduy v. State Page 5

13, 2018, and his charge of assault family violence by strangulation was alleged to have 

occurred on June 23, 2018; neither was included as a specific underlying act of bodilyinjury assault in the continuous-violence-against-the-family charge. Further, section 

25.11(a) of the Penal Code limits the underlying acts of bodily-injury assault in charging 

continuous violence against the family to “conduct that constitutes an offense under 

Section 22.01(a)(1)” of the Penal Code. See TEX. PENAL CODE ANN. § 25.11(a). Lorduy’s 

charge of aggravated assault with a deadly weapon is an offense under section 22.02 of 

the Penal Code, and the assault-family-violence-by-strangulation charge is an offense 

under section 22.01(b)(2)(B) of the Penal Code. These are not predicate offenses for the 

offense of continuous violence against the family. Additionally, the conduct upon which 

Lorduy’s charges of aggravated assault with a deadly weapon and assault family 

violence by strangulation are based falls outside the allowable unit of prosecution 

because Lorduy had not been punished for the conduct. See Ellison, 425 S.W.3d at 648. 

We conclude the multiple punishments imposed do not exceed the allowable units of 

prosecution or violate double-jeopardy protections.

Ineffective Assistance of Counsel

“Under Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984),] a defendant seeking to challenge counsel’s representation must establish that his 

counsel’s performance (1) was deficient[ ] and (2) prejudiced his defense.” Smith v. State, 

286 S.W.3d 333, 340 (Tex. Crim. App. 2009). To show deficiency, a defendant must prove 
Lorduy v. State Page 6

by a preponderance of the evidence that his counsel’s representation objectively fell 

below the standard of professional norms. Id. And to show prejudice, a defendant must 

show there is a reasonable probability that, but for his counsel’s unprofessional errors, 

the result of the proceeding would have been different. Id. “’Reasonable probability’ is 

a ‘probability sufficient to undermine confidence in the outcome,’ meaning ‘counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result is 

reliable.’” Id. (quoting Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068). A defendant 

must overcome the strong presumption that trial counsel’s decisions and actions fell 

within a wide range of professional and reasonable assistance. See Bone v. State, 77 S.W.3d 

828, 833 (Tex. Crim. App. 2002). 

An ineffective-assistance claim may be raised in a motion for new trial. Smith, 286 

S.W.3d at 340. We review the “denial of a motion for new trial for an abuse of discretion, 

reversing only if no reasonable view of the record could support the trial court’s ruling.” 

Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). And we are required “to view 

the evidence in the light most favorable to the trial court’s ruling.” Id. “In determining 

whether the trial court abused its discretion, an appellate court must not substitute its 

own judgment for that of the trial court, and it must uphold the trial court’s ruling if it is 

within the zone of reasonable disagreement.” Id. If there are two reasonable views of the 

evidence, the trial court’s ruling is within the zone of reasonable disagreement. Id.
Lorduy v. State Page 7

During the hearing on the motion for new trial, Lorduy’s trial counsel was 

questioned regarding his investigation into the victim’s criminal and social history, his 

reason for not calling an expert witness or filing a motion to dismiss, and the extent of his 

pretrial discovery. All topics serve as the basis of Lorduy’s current complaints.

Double Jeopardy

The record reflects that Lorduy’s trial counsel did not file a pretrial motion to 

quash or set aside the indictment on double-jeopardy grounds. Lorduy argued in his 

motion for new trial that trial counsel’s failure to do so amounted to ineffective assistance. 

We disagree.

“The multiple-punishments protection against double jeopardy does not prohibit 

multiple jury verdicts of guilt within a single trial but only the imposition of multiple 

convictions and multiple punishments.” Ex parte Chapa, No. 03-18-00104-CR, 2018 WL 

3999741, at *6 (Tex. App.—Austin Aug. 22, 2018, pet. ref’d) (mem. op., not designated for 

publication) (citing Ex parte Aubin, 537 S.W.3d 39, 43 (Tex. Crim. App. 2017), Evans v. 

State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009), and McGuire v. State, 493 S.W.3d 177, 

201–02 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)). When a conviction occurs in a 

single criminal trial, the role of the double-jeopardy guarantee “is limited to assuring that 

the court does not exceed its legislative authorization by imposing multiple punishments 

for the same offense.” Aubin, 537 S.W.3d at 43 (quoting Brown v. Ohio, 432 U.S. 161, 165, 

97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)). It is only upon entry of a judgment for multiple 
Lorduy v. State Page 8

offenses, after sentencing, that a multiple-punishments violation even occurs. Id. at 43–

44. If Lorduy’s trial counsel had filed a pretrial motion to quash or set aside the 

indictment asserting a claim of multiple punishments in the trial court, it would have 

been premature because the sentence had not been imposed and no judgment had been 

entered that subjected Lorduy to multiple punishments for the same offense. Counsel is 

not deficient for failing to raise meritless claims. See Ex parte Covarrubias, 665 S.W.3d 605, 

623 (Tex. Crim. App. 2023).

Discovery & Investigation

Trial counsel indicated in his testimony that he did not file any pretrial discovery 

motion because the trial court had a standing pretrial order that required disclosure by 

the State to trial counsel. Trial counsel’s testimony reflected that he reviewed discovery, 

including photographs, and had “two red-rope folders of discovery.” The victim was 

disclosed by the State as a witness, so pursuant to the trial court’s standing pretrial order,

the State was required to disclose any “[p]rior felony or misdemeanor convictions 

involving moral turpitude” of the victim. It is also clear from the record that Lorduy

provided trial counsel with a great deal of information regarding the victim’s background 

and history. The record reflects that trial counsel asked the victim on cross-examination 

about her supervised visitation with her child, her past drug problem, her

methamphetamine use, her medication for psychotic behavior, the reasons for losing 

custody of her child, her use of physical force against her mother, her poor relationship 
Lorduy v. State Page 9

with her mother, her attacking Lorduy, her failure to report Lorduy’s abuse when it 

occurred, her striking Lorduy’s dog, and her personal psychological and emotional 

issues. The trial court noted when ruling on Lorduy’s motion for new trial that the trial 

was a “pitched battle,” much of it over trial counsel trying to get “bad stuff” into evidence 

about the victim, which trial counsel “succeeded tremendously” in doing. 

Lorduy does not complain on appeal of any unfair surprise resulting from the 

State’s failure to disclose information during the trial. In fact, the State filed a three-page

document titled “State’s Discovery Responses” that alleged eight prior convictions, 

crimes, wrongs, or bad acts on the part of Lorduy. The State’s disclosure also invited trial 

counsel to “review the [State’s] file for any information that has not been disclosed.” 

Furthermore, the State filed a notice of intention to use extraneous offenses pursuant to 

article 38.371, State’s Notice of Expert Witnesses, State’s Supplemental Notice of Expert 

Witnesses, and State’s Notice of Intent to Call Witnesses. Trial counsel filed a Request for 

Notice of Intent to Offer Extraneous Conduct and Evidence of Conviction. Also included 

in the clerk’s record is a document titled “State’s Production of Discoverable Items in 

Compliance with Article 39.14 of the Texas Code of Criminal Procedure,” which included 

the following:

The undersigned parties hereby acknowledge that the State 

provided discovery equal to or greater than is required by Texas Code of 

Criminal Procedure Article 39.14. The undersigned parties hereby 

acknowledge that the items referenced in the discovery receipt(s) have been 

delivered by the State to the Defense and the items referenced in the 
Lorduy v. State Page 10

discovery receipt(s) were received by the Defense on the dates specified 

there-in.

The document was signed by Lorduy, his lawyer, and the State’s attorney. Lorduy has 

not shown that the State failed to disclose evidence or that there was any unknown

evidence beneficial to Lorduy that could have been disclosed by the filing of discovery 

motions or interviewing the State’s witnesses. See Wert v. State, 383 S.W.3d 747, 756–57 

(Tex. App.—Houston [14th Dist.] 2012, no pet.). Additionally, Lorduy does not state 

what the investigation or interview would have revealed that reasonably could have 

changed the result of this case. See Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref’d).

Expert Witness

Trial counsel testified that he did not request a trauma expert because the victim’s 

injuries were very severe. Trial counsel indicated that having a trauma expert look at the 

victim’s injuries and Lorduy’s injuries would not have been exculpatory to Lorduy. 

Counsel particularly emphasized a mark on the victim’s forehead that the victim claimed

was cause by Lorduy striking her with a gun. Trial counsel concluded that if he “had to 

try it all over again[,] I still would not call a, quote, trauma expert.” Lorduy did not 

adduce evidence showing that such an expert was available or that the expert could have 

offered beneficial testimony. See Jones v. State, 500 S.W.3d 106, 116 (Tex. App.—Houston 

[1st Dist.] 2016, no pet.) (citing Cantu v. State, 993 S.W.2d 712, 719 (Tex. App.—San 

Antonio 1999, pet. ref’d)).
Lorduy v. State Page 11

Article 32.01 Motion to Dismiss

Lorduy’s next complaint is that trial counsel was ineffective when he failed to file 

a motion to dismiss under article 32.01 of the Code of Criminal Procedure after 180 days 

had elapsed since Lorduy had been arrested. See TEX. CODE CRIM PROC. ANN. art. 32.01. 

Article 32.01 “prevents citizens from being left in jail or on bail for long periods of time 

without being indicted.” Ex parte Martin, 6 S.W.3d 524, 529 (Tex. Crim. App. 1999). “The 

State must indict within the period set by article 32.01, show good cause for the delay, or 

suffer the dismissal of the charges.” Id. “[U]pon dismissal of the charges, the accused 

repossesses certain liberty interests; he is out of jail and off bail until the grand jury 

presents an indictment.” Id. The relief is only temporary, and article 32.01 has no 

application once an indictment is returned. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. 

App. 1999). 

The record before us reflects that Lorduy was on bond while this matter was 

pending, and a little over thirty days lapsed between the 180-day deadline after his arrest 

and the date of indictment. Trial counsel could not recall whether he considered filing a 

motion to dismiss under article 32.01 and agreed that, regardless, the State would have 

presented the case to the grand jury and that the grand jury would have indicted Lorduy. 

Prior Appellate Counsel

Lorduy argues that his prior appellate counsel who represented him in the trial 

court during the hearing on his motion for new trial was ineffective for failing to 
Lorduy v. State Page 12

introduce a probable cause affidavit and arrest warrant. Lorduy attempted to 

supplement the record by motion requesting the probable cause affidavit and arrest 

warrant be included in the record; however, Lorduy’s request was denied. Despite our 

denial of Lorduy’s request to supplement the record, appellate counsel attached the 

documents to his brief that Lorduy sought to have included in the record. We cannot 

consider material not introduced into evidence, nor can we consider the documents 

attached to Lorduy’s brief. See Caldwell v. State, 672 S.W.2d 244, 245 (Tex. App.—Waco 

1983, pet. ref’d).

Trial counsel should ordinarily be afforded an opportunity to explain his actions 

before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. 

App. 2003). When the record is silent, as in this case, regarding the reasons for counsel’s 

conduct, a finding that counsel was ineffective requires impermissible speculation by the 

appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, 

no pet.). Thus, absent specific explanations for counsel’s decisions, a record on direct 

appeal will rarely contain sufficient information to evaluate or decide an ineffectiveassistance-of-counsel claim. See Bone, 77 S.W.3d at 833. “[A]n application for a writ of 

habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel 

claims.” Rylander, 101 S.W.3d at 110. To warrant reversal without affording counsel an 

opportunity to explain his actions, “the challenged conduct must be ‘so outrageous that 

no competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533–
Lorduy v. State Page 13

34 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. 

App. 2005)).

The record before us is completely silent as to prior appellate counsel’s strategy on 

not seeking admission of a probable cause affidavit or arrest warrant in the trial court 

before the hearing on the motion for new trial. A record such as this cannot adequately 

reflect the failings of counsel sufficiently enough for an appellate court to fairly evaluate 

the merits of such a serious allegation. See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. 

App. 2011). 

Accordingly, we cannot say that Lorduy has established that his prior appellate 

counsel was ineffective. See Smith, 286 S.W.3d at 339–41. 

Based upon the evidence, the trial court could reasonably have found that Lorduy 

has not shown (1) that trial counsel’s representation objectively fell below the standard 

of professional norms, or (2) that the result of the proceeding would have been different. 

See id. at 340. 

We conclude, after viewing the evidence in the light most favorable to the trial 

court’s ruling, that the trial court acted within its sound discretion in denying Lorduy’s 

motion for new trial.

We therefore overrule Lorduy’s first, fourth, and fifth issues.
Lorduy v. State Page 14

Issue Two

In his second issue, Lorduy contends that the trial court erred by denying his

motion for mistrial due to the State’s introduction of prior instances of misconduct in 

front of the jury.

AUTHORITY

The grant of a motion for mistrial is only an appropriate remedy in extreme 

circumstances for a narrow class of highly prejudicial and incurable errors. See Ocon v. 

State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). The grant of a mistrial is “an extreme 

remedy” utilized only when residual prejudice remains after less drastic alternatives are 

explored. Id. at 884–85. “A mistrial halts trial proceedings when error is so prejudicial 

that expenditure of further time and expense would be wasteful and futile.” Id. at 884. 

The denial of a motion for mistrial is reviewed for an abuse of discretion and must be 

upheld if it was within the zone of reasonable disagreement. Id. “An appellate court 

views the evidence in the light most favorable to the trial court’s ruling, considering only 

those arguments before the court at the time of the ruling.” Id. 

. . . [T]he appropriate test for evaluating whether the trial court 

abused its discretion in overruling a motion for mistrial is a tailored version 

of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259–60 (Tex.

Crim. App. 1998), a harm analysis case. See Hawkins [v. State], 135 S.W.3d 

[72,] 77 [(Tex. Crim. App. 2004)]. The Mosley factors that we consider in 

determining whether the trial court abused its discretion in denying a 

mistrial . . . are: (1) the prejudicial effect, (2) curative measures, and (3) the 

certainty of conviction absent the misconduct. [See id.;] Mosley, 983 S.W.2d 

at 259.
Lorduy v. State Page 15

Watson v. State, No. 10-14-00359-CR, 2016 WL 3452777, at *3 (Tex. App.—Waco June 22, 

2016, no pet.) (mem. op., not designated for publication) (quoting Abbott v. State, 196 

S.W.3d 334, 347 (Tex. App.—Waco 2006, pet ref’d)).

Instructions by the trial court “to the jury are generally considered sufficient to 

cure improprieties that occur during trial,” and “we generally presume that a jury will 

follow the judge’s instructions.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 

2009). “A witness’s inadvertent reference to an extraneous offense is generally cured by 

a prompt instruction to disregard.” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 

2009) (per curiam). “An exception exists where the reference was clearly calculated to 

inflame the minds of the jury or was of such damning character as to suggest it would be 

impossible to remove the harmful impression from the jurors’ minds.” Rojas v. State, 986 

S.W.2d 241, 250 (Tex. Crim. App. 1998).

DISCUSSION

The following exchange transpired between the State’s attorney and the victim 

during the trial:

Q. . . . Now, did you go to the police after this event?

A. I did not.

Q. Why is that?

A. I was afraid.

Q. What were you afraid of?
Lorduy v. State Page 16

A. What would happen. What would happen.

Q. By “what would happen,” what do you mean?

A. Well, for one thing, we were going through a custody battle with my

 mom and he had been in trouble for abusing me.

Trial counsel asked to approach and objected to the last question and answer on the 

grounds that it was “a violation of the motion in limine . . . she just accused my client of 

some sort of abuse that they were going through with CPS.” Trial counsel also requested 

that the victim’s response be stricken and that the State should be prohibited from going 

into the subject. The State’s attorney indicated that he was not planning on getting into 

the matter without first taking up the matter outside the presence of the jury. The trial 

court indicated he thought “we were on the first incident” and that the victim was talking 

about “something prior.” Trial counsel then moved for a mistrial, and the trial court 

overruled the motion. Once the bench conference concluded, the trial court sustained 

Lorduy’s objection, ordered the answer stricken, and ordered the jury to disregard. 

Considering the Mosley factors, we cannot say that the trial court abused its 

discretion in overruling the motion for mistrial. It is unclear whether the State’s 

attorney’s question was even intended to solicit a response from the victim that Lorduy 

“had been in trouble for abusing me.” Additionally, the State’s attorney’s 

acknowledgement that he was not planning on getting into such matters without first 

taking it up outside the presence of the jury appears to indicate it was not his intent to 

inject an extraneous act. Any prejudicial effect from what appears to be an unsolicited 
Lorduy v. State Page 17

response to the State’s attorney’s question was curable by the trial court’s instruction to 

disregard. No evidence was presented to rebut the presumption that the jury obeyed the 

trial court’s instruction to disregard. Finally, the evidence favorable to the conviction was 

strong and came directly from the victim with much of the abuse documented with 

photographs. The victim testified that she could not count the times Lorduy had abused 

her. Lorduy attempted to portray the victim as the instigator, which was by the jury’s 

verdict rejected. Because the record contains ample evidence to convict, the single 

mention that Lorduy had been in trouble for abusing the victim is insufficient to warrant 

disturbing the trial court’s discretion to overrule Lorduy’s motion for mistrial.

We therefore overrule Lorduy’s second issue.

Issue Three

In this issue, Lorduy contends that the trial court erred by holding a 702 Hearing 

in the presence of the jury. See generally TEX. R. EVID. 702. Lorduy argues in his brief that 

Rules 104(a) and (c), 702, 401, and 402 require a trial court to make three separate inquires 

before expert testimony may be admitted. Therefore, it is Lorduy’s position that Rules 

702 and 104(a) and (c) were violated because the expert witness was qualified in the 

presence of the jury.

AUTHORITY 

. . . To preserve error for appellate review: (1) the complaining party 

must make a timely objection specifying the grounds for the objection, if the 

grounds are not apparent from the context; (2) the objection must be made 
Lorduy v. State Page 18

at the earliest possible opportunity; and (3) the complaining party must 

obtain an adverse ruling from the trial court.

Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d) (citing TEX. R.

APP. P. 33.1(a)(1), and Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002)). An 

objection that does not invoke the trial court’s “gatekeeper” function to conduct a hearing 

outside the presence of the jury will not preserve any possible error on that ground. See

Pouncy v. State, No. 01-01-01048-CR, 2002 WL 31388799, at *2 (Tex. App.—Houston [1st 

Dist.] Oct. 24, 2002, pet. ref’d) (mem. op., not designated for publication).

DISCUSSION

Lorduy did not object during trial, nor did he request that the trial court conduct 

a gatekeeping hearing outside the presence of the jury when the complained of expert 

witnesses were called to the witness stand by the State’s attorney. Thus, Lorduy failed to 

preserve any potential error. See TEX. R. APP. P. 33.1; TEX. R. EVID. 103(a).

We overrule Lorduy’s third issue.

Conclusion

Having overruled Lorduy’s issues, we affirm the judgment of the trial court.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and 

Justice Smith
Lorduy v. State Page 19

Affirmed

Opinion delivered and filed August 23, 2023

Do not publish

[CR25]