Opinion filed January 16, 2020

In The

Eleventh Court of Appeals ___________

No. 11-17-00335-CR

___________

ROY DANIEL GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-16-0305-CR

M E M O R A N D U M O P I N I O N

The jury convicted Roy Daniel Garza of the attempted capital murder of 

Sergeant Pedro Gonzalez and Corporal Cory Wester of the Odessa Police 

Department (OPD) and assessed his punishment at confinement for life for each 

offense—with the sentences to run concurrently. We affirm.

Appellant presents eleven issues on appeal. In the first issue, he contends that 

the trial court erred when it denied his motion for new trial. In his second and third 

issues, Appellant complains that the trial court abused its discretion when it denied 
2

his motion for new trial. In Appellant’s fourth, fifth, and sixth issues, he asserts that

the trial court erred in when it admitted certain testimony into evidence. In his 

seventh issue, Appellant contends that the trial court erred when it permitted the 

untimely reading of enhancement paragraphs and Appellant’s untimely pleas to 

those paragraphs. In Appellant’s eighth issue, he complains that the trial court erred 

when it overruled his objection to the charge regarding the range of punishment. In 

his ninth issue, Appellant asserts that the evidence was insufficient to support the 

jury’s implied rejection of his self-defense claim. In Appellant’s tenth issue, he 

contends that the trial court erred when it denied his motion for directed verdict. In 

his eleventh issue, Appellant complains that the evidence is insufficient to support 

his convictions for attempted capital murder.

On the morning of December 23, 2015, several OPD officers and two private 

investigators went to Appellant’s apartment to execute three confirmed warrants for 

his arrest. Appellant was a wanted fugitive who had failed to appear in court on a 

charge of aggravated robbery.

The apartment manager accompanied Corporal Cory Wester, Corporal Jaime 

Aguirre, and the private investigators to Appellant’s apartment. The manager 

knocked on the front door of Appellant’s apartment and announced herself. 

Sergeant James Patrick Chadwick and Sergeant Pedro Gonzalez waited at the back 

of the apartment and watched for Appellant. Corporal Wester heard a male and a 

female talking inside, and when Appellant’s wife, Megan Garza, answered the door

alone, Corporal Wester repeatedly asked her to provide Appellant’s location. Megan

told Corporal Wester that she had not seen Appellant in months and did not know

his location.

While positioned at the rear of the apartment, Sergeant Chadwick heard the 

sliding glass door to Appellant’s apartment open. Appellant left his apartment and

“proceed[ed] to the patio next door.” Sergeant Chadwick informed other officers by 
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radio that he had seen Appellant proceed to the neighbor’s patio. Sergeant Chadwick 

and Sergeant Gonzales “enter[ed] that back patio in an attempt to apprehend 

[Appellant], but he had already moved inside the [neighbor’s] apartment.”

Corporal Aguirre used the manager’s key to open the front door of 

the neighbor’s apartment. Corporal Wester then announced: “Odessa Police 

Department, make yourself known.” Corporal Wester entered the apartment, and 

then Corporal Aguirre entered. After Corporal Wester cleared the living room, 

kitchen, and a bathroom, Corporal Aguirre pointed out that Corporal Wester had 

missed a door. Corporal Wester heard a noise, and when he glanced back, he saw 

Appellant exit a closet in a crouched position as he continuously fired his gun at 

Corporal Wester. 

Corporal Wester attempted to retreat into the kitchen, but as he did, a bullet 

hit his left pelvis. The gunshot wound rendered his left leg useless, and he fell on 

his back. As Corporal Wester raised himself up on one elbow and extended his 

pistol, Appellant fired his gun again and injured Corporal Wester’s thumb, which

caused Corporal Wester to drop his weapon. Appellant moved toward the bedroom 

doorway as he continued to fire his gun at Corporal Wester. A bullet penetrated

Corporal Wester’s vest and struck his chest. The shooting did not end there. While 

on his back, Corporal Wester scooted back in an attempt to gain cover. However, 

Appellant continued to fire his gun at Corporal Wester, and another bullet struck his 

right calf. According to Corporal Wester, after Appellant shot him five times, 

Appellant approached the end of the hallway and fired toward the front door. As 

Corporal Wester prepared to fire his Taser, Appellant stopped firing his pistol and 

ran toward the bedroom. Corporal Wester’s Taser probe struck the bedroom door 

as it closed.

During this time, Corporal Aguirre had taken cover and returned gunfire. 

While Corporal Aguirre fired rounds toward the bedroom, Corporal Wester crawled 
4

on his stomach to the doorway, and one of the private investigators dragged 

Corporal Wester away. Corporal Aguirre backed out of the apartment.

Sergeant Gonzalez retrieved his rifle and exchanged gunfire with Appellant. 

Appellant shot Sergeant Gonzalez in the torso, which was covered by his protective 

vest, and also in the left arm.

Corporal George Amezola fired a shot and struck Appellant. Appellant

subsequently fired and struck a pool house roof where two members of a SWAT 

team, “snipers,” were positioned. Appellant also shot and disabled a robot that had 

been deployed into the apartment for surveillance and intelligence purposes. 

Corporal Travis W. Fraser, a crisis negotiator, began negotiations with 

Appellant. A recording of the negotiations was admitted into evidence. During the 

negotiations, Appellant acknowledged that he had shot two officers and noted that,

although he could have shot one of the snipers, he shot in the direction of the sniper 

for the mere purpose of scaring him. When Corporal Fraser asked: “You shot at the 

officers to wound them, not to kill them, right?” Appellant answered: “Right.” 

However, Appellant later explained that officers “came in [with] weapons drawn 

and when I seen them, I started firing.” Appellant also said that he “really wasn’t 

trying to hurt them.” Ultimately, Appellant discarded his weapons and surrendered. 

Texas Ranger Randy Lewis responded to the scene, accompanied Appellant 

in the ambulance, and subsequently interviewed Appellant at the police department. 

A recording of that interview was admitted into evidence. During the interview, 

Appellant admitted that he knew that there was a warrant for his arrest, but Appellant

claimed that he did not initially know that police were present at the apartment

because he had been asleep, was not wearing his contacts, and had very poor

eyesight. Appellant took his gun, grabbed a box of ammunition, and entered the 

neighbor’s apartment where he hid in a closet. Appellant acknowledged that, when 

officers entered his neighbor’s apartment, he heard them announce: “This is Odessa 
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PD. Come out with your hands up. Make yourself known.” He claimed that, when 

he peeked out of the closet door with his gun in his hand, officers deployed a Taser 

and fired a gunshot but did not strike him. Appellant stated that “there wasn’t too 

much thought process” when he fired his weapon; he said that he instinctively 

returned fire, in self-defense, at the two officers, whom he claimed had fired first. 

Appellant claimed that, when he shot one of the officers—whom he described 

as being crouched, holding an M16, and moving his head back and forth—he was 

aiming at the fence and was not necessarily trying to hit the officer. Appellant

acknowledged, however, that he knew that the man was a police officer. Appellant 

admitted that he had reloaded his .40 caliber pistol twice during the course of events.

When asked whether he had considered that one of his rounds could actually strike 

and kill an officer, Appellant answered: “I mean, speaking in possibilities, we all 

know what can happen.”

During trial, Appellant testified that warrants for his arrest had been issued 

based on his violation of the terms of his parole for a drug-related conviction and his 

violation of the terms of his bond when he failed to appear in court on a charge of 

aggravated robbery. He claimed that Megan’s grandmother, who was the guarantor 

on his bail bond, had sent “bounty hunters” to find him. He also claimed that, 

although he had not planned to escape if police had approached him, he had prepared 

to abscond from the bounty hunters by putting a trap door in the apartment fence and 

stashing his loaded pistol, ammunition, and a bag of clothes in his neighbor’s 

apartment closet. 

Appellant again claimed that, when someone knocked on his apartment door, 

he had been sleeping and was unable to determine who was at the door because he 

was not wearing his contacts. Because he thought it might be his wife’s grandmother 

or the bounty hunters, Appellant used the trap door in the fence, entered his 

neighbor’s apartment, and hid in the closet with the door closed. 
6

Appellant testified that he heard an unknown person enter his neighbor’s

apartment and announce, “Odessa Police Department.” Appellant explained that,

when he “cracked” the closet door and looked toward the officers, one of them fired 

a Taser in Appellant’s direction and another officer fired his weapon. He testified 

that he had misspoken when he told the negotiator that officers entered with their 

“guns drawn” and that he had meant to say, instead, that they had entered with “guns 

blazing.” Appellant testified that, when the officer fired his gun in Appellant’s

direction, Appellant fired his pistol four or five times in the general direction of the 

initial gunshot, heard the officer scream, and noticed that the officers were retreating. 

Appellant stated that he did not look as he fired his weapon from the closet and

denied that he ever entered the living room while firing his pistol. Appellant testified 

that, as he fired his pistol, his intent was to defend himself and to scare the officers 

away.

Appellant testified that, after the officers left the apartment, he barricaded 

himself in the bedroom and put in his contact lenses. Appellant subsequently fired 

his weapon again, but he testified that his intent at that time was to scare the officers 

and keep them away. He claimed that he did not know at that time that he had shot 

another officer. 

We will first address Appellant’s ninth, tenth, and eleventh issues concerning 

the sufficiency of the evidence to support his convictions. In his ninth issue, 

Appellant complains that the evidence was insufficient to support the jury’s implied 

rejection of his self-defense claim after the jury found him guilty of attempted capital 

murder. In his tenth issue, Appellant argues that the trial court erred when it denied 

his motion for a directed verdict at the conclusion of the guilt/innocence phase of 

trial. In his eleventh issue, Appellant contends that the evidence was not sufficient 

to warrant a conviction for attempted capital murder.
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We review the sufficiency of the evidence under the standard of review set 

forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 

895, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. 

App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the 

evidence in the light most favorable to the verdict and determine whether, based on 

that evidence and any reasonable inferences from it, any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. 

Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 

2010). This standard gives full play to the responsibility of the trier of fact to resolve 

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Blackman v. State, 350 

S.W.3d 588, 595 (Tex. Crim. App. 2011). A motion for directed verdict is reviewed 

under the same standard as the legal sufficiency of the evidence. See Williams v. 

State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). 

The trier of fact is the sole judge of the weight and credibility of the evidence.

See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Winfrey v. State, 393 

S.W.3d 763, 768 (Tex. Crim. App. 2013). Thus, when performing an evidentiary 

sufficiency review, we may not reevaluate the weight and credibility of the evidence 

and substitute our judgment for that of the factfinder. Isassi, 330 S.W.3d at 638. 

We must presume that the factfinder resolved any conflicting inferences in favor of 

the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Temple v. State, 

390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

The Texas Penal Code provides that a person commits the offense of murder 

if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE 

ANN. § 19.02(b)(1) (West 2019). Murder becomes capital murder under certain 

circumstances, including when the person murders a peace officer who is acting in 

the lawful discharge of his official duties and whom the person knows to be a peace 
8

officer. Id. § 19.03(a)(1). An attempt to commit an offense occurs when, with the 

specific intent to commit the offense, a person does an act that amounts “to more 

than mere preparation that tends but fails to effect the commission of the offense 

intended.” Id. § 15.01(a).

To permit the jury to find Appellant guilty of the attempted capital murders

of Corporal Wester and Sergeant Gonzalez, the State was required to prove beyond a 

reasonable doubt that, with the specific intent to cause the deaths of Corporal Wester

and Sergeant Gonzalez, and while knowing that they were peace officers acting in 

the lawful discharge of an official duty, Appellant intelligently and knowingly 

discharged a firearm at Corporal Wester and at Sergeant Gonzalez, which were acts

amounting to more than mere preparation that tended but failed to effect the 

commission of the offenses of capital murder. See id. §§ 15.01(a), 19.02(b)(1), 

19.03(a)(1); Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (op. 

on reh’g) (“[A] specific intent to kill is a necessary element of attempted murder.”). 

Appellant does not challenge the sufficiency of the evidence to establish that 

Corporal Wester and Sergeant Gonzalez were peace officers or that they were acting 

in the lawful discharge of an official duty. Instead, Appellant argues that the 

evidence was insufficient to show that he intended to kill Corporal Wester or 

Sergeant Gonzalez. Although Appellant claimed that he was not trying to hurt the 

officers, the jury was free to reject this claim. “[T]he specific intent to kill may be 

inferred from the use of a deadly weapon.” Cavazos v. State, 382 S.W.3d 377, 384 

(Tex. Crim. App. 2012); see also Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. 

Crim. App. 1986) (citing Flanagan, 675 S.W.2d at 744). 

The record reflects that, if Corporal Wester had not been wearing his 

protective vest, the gunshot wound to his chest would probably have been fatal. 

Dr. Michael Jerard Cornielle testified that he “expect[ed]” that a person firing a 

gunshot to that area of the body was “trying to hurt someone very badly, if not kill 
9

them.” Dr. Cornielle noted that Sergeant Gonzalez also had an abrasion on his chest

with the same characteristics as Corporal Wester’s chest wound. 

The evidence supports a finding that Appellant intended to kill 

Corporal Wester and Sergeant Gonzalez. See Cavazos, 382 S.W.3d at 384; Godsey, 

719 S.W.2d at 580–81. The jury was free to disbelieve Appellant’s testimony that 

he lacked the requisite intent to cause the deaths of the officers when he shot them. 

When we consider the evidence in the light most favorable to the verdict, we 

conclude that a rational trier of fact could have found beyond a reasonable doubt that 

Appellant committed the offenses of attempted capital murder of Corporal Wester 

and Sergeant Gonzalez. Accordingly, we hold that the evidence was sufficient to 

support Appellant’s convictions and the trial court’s denial of Appellant’s motion 

for directed verdict. 

In his ninth issue, Appellant claims that the evidence was legally insufficient

to support the jury’s implicit rejection of his self-defense claim. Self-defense is a 

fact issue that is determined by the jury, and the jury’s verdict of guilt is an implicit 

finding that it rejected the defendant’s self-defense theory. See Saxton v. State, 804 

S.W.2d 910, 913–14 (Tex. Crim. App. 1991). The defendant has the burden of 

producing evidence to support a self-defense claim. Zuliani v. State, 97 S.W.3d 589, 

594 (Tex. Crim. App. 2003); see also Saxton, 804 S.W.2d at 913–14 (contrasting 

self-defense from affirmative defenses and explaining how burdens shift for selfdefense). If the defendant produces some evidence, the State has “the burden of 

persuasion to disprove the raised defense.” Zuliani, 97 S.W.3d at 594. The State’s 

burden does not require the production of any additional evidence; instead, “it 

requires only that the State prove its case beyond a reasonable doubt.” Id.; see 

Saxton, 804 S.W.2d at 913. We review a sufficiency challenge to the jury’s rejection 

of self-defense under the legal sufficiency standard. Smith v. State, 355 S.W.3d 138, 

145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). We have already discussed 
10

the well-known standard of review under which we review a challenge to the 

sufficiency of the evidence. We see no need to repeat that standard here. 

We have examined all the evidence in this case in the light most favorable to 

the verdict and have previously determined that a rational trier of fact could have 

found the essential elements of the charged offenses beyond a reasonable doubt. We 

therefore proceed to determine whether a rational trier of fact could have found 

against Appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 

804 S.W.2d at 914. 

Section 9.32 of the Penal Code provides in relevant part that a person is 

justified in using deadly force against another (1) if he would be justified in using 

force under Section 9.31 and (2) when and to the degree he reasonably believes the 

deadly force is immediately necessary to protect himself against the other’s use or 

attempted use of unlawful deadly force. PENAL §§ 9.31, 9.32(a)(1), (a)(2)(A). 

Section 9.31 provides that the use of force against another in self-defense is not 

justified to resist an arrest or search that the actor knows is being made by a peace 

officer—even though the arrest or search is unlawful—unless, before the actor offers 

any resistance, the peace officer uses or attempts to use greater force than necessary 

to make the arrest or search and the actor reasonably believes the force is 

immediately necessary to protect himself against the peace officer’s use or attempted 

use of greater force than necessary. Id. § 9.31(b)(2), (c). 

From the evidence presented at trial, a rational jury could have found that 

Appellant’s use of deadly force was not justified. The jury was entitled to disbelieve 

Appellant’s version of the events, especially in light of his various inconsistent 

statements and the conflicting testimony. The jury could have determined from the 

evidence that Appellant’s belief that deadly force was immediately necessary to 

protect himself was not a reasonable belief. Furthermore, the jury could have 

reasonably determined that Corporal Wester and Corporal Aguirre had not used or 
11

attempted to use unlawful deadly force against Appellant or had not used or 

attempted to use greater force than was necessary when they executed the arrest 

warrant. In the absence of evidence in the record indicating that the jury was 

irrational in rejecting Appellant’s claims of self-defense, we decline to substitute our 

own view of the witnesses’ credibility for that of the jury. Saxton, 804 S.W.2d at 

913. 

Because we have concluded that a rational trier of fact could have found the 

essential elements of the offenses beyond a reasonable doubt, and because the record 

contained sufficient evidence from which a rational jury could have rejected 

Appellant’s claim of self-defense beyond a reasonable doubt, we overrule

Appellant’s ninth, tenth, and eleventh issues on appeal. 

In his fourth, fifth, and sixth issues, Appellant complains of evidentiary 

rulings. We review a trial court’s evidentiary rulings under an abuse of discretion 

standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial 

court abuses its discretion when its decision falls outside the zone of reasonable 

disagreement. Id.; Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). 

We will uphold the trial court’s ruling on the admission or exclusion of evidence if 

the ruling was proper under any legal theory or basis applicable to the case. Devoe v. 

State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). We address Appellant’s three 

evidentiary issues in turn.

In Appellant’s fourth issue, he contends that the trial court erred when it 

allowed multiple witnesses to testify regarding the nature of the warrant for 

Appellant’s arrest. At a pretrial conference, defense counsel advised the trial court 

that references were made to Appellant’s warrants, criminal history, and pending 

cases during both the recorded negotiations and the custodial interview and asserted

that the prejudicial danger of that information outweighed its evidentiary value. 

Defense counsel also noted: “If you limit it [to the fact that officers] were just there 
12

to serve a warrant . . . I think that might clean it up to where both sides can live with 

it.” 

At the pretrial hearing, the prosecutor and defense counsel advised the trial 

court that they had agreed that evidence regarding Appellant’s parole warrant would 

be admitted at trial. The State agreed that information regarding “certain aspects of 

the priors” and the “facts relating to what the [aggravated robbery] warrant [was]

for” would not be disclosed at trial. However, the State noted that it had the burden 

to prove that Appellant possessed the requisite intent to kill the police officers. The 

State argued that the fact that the arrest warrant was being executed based on a 

charge of aggravated robbery was properly admissible because that fact was relevant 

to Appellant’s state of mind, motive, intent and plan—to “why [Appellant] would 

go to those extremes”—and to the officers’ actions when they attempted to arrest 

Appellant pursuant to the warrant. Defense counsel objected to the admissibility of 

the “aggravated robbery portion” of the warrant under Rule 404(b) because the 

conduct was unproven and under Rule 403 because such disclosure would be 

extremely prejudicial to Appellant, who had not been convicted of the charged 

aggravated robbery. See TEX. R. EVID. 403, 404(b). Defense counsel argued that 

the State had “plenty of motive evidence” and facts to show Appellant’s intent. The

trial court commented, “If [the defendant] brings it up during the course of the 

negotiations, then I am going to allow it in,” and expressly acknowledged its belief

that the probative nature of the evidence would outweigh its prejudicial effect.

During its opening statement in the guilt/innocence phase of trial, the State 

told the jury that Appellant had a parole warrant as well as a warrant for failure to 

appear in an aggravated robbery case. Defense counsel requested a bench 

conference, stated that he had understood that the nature of the arrest warrant would 

not be introduced, and noted that references to the aggravated robbery had been 

redacted from the recorded evidence. However, the trial court agreed with the 
13

State’s observation that the State had previously indicated that it would be 

introducing into evidence the warrant in which the aggravated robbery charge was 

mentioned. The trial court asked defense counsel, “Is that an objection?” Defense 

counsel answered, “Yes,” and the trial court overruled the objection. The trial court

subsequently granted Appellant’s request for a running objection regarding “the 

issue concerning aggravated robbery on the warrant and any reference to it” on 

grounds that the aggravated-robbery nature of the warrant was an unproven 

extraneous offense and that the prejudicial effect of the evidence outweighed its 

probative value. See TEX. R. EVID. 103(b).

Witnesses testified that the arrest warrant involved a charge of aggravated 

robbery with a deadly weapon, and the warrant was admitted into evidence. The 

jury heard Appellant’s recorded acknowledgment that a warrant had been issued for 

his arrest based on a charge of aggravated robbery and also heard Appellant testify 

during direct examination that he knew the warrant was being executed because he

had failed to appear in court on the aggravated robbery charge.

Under Rule 404(b), evidence of an extraneous offense may be admissible as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident. TEX. R. EVID. 404(b). In other words, Rule 404(b) 

requires evidence of an extraneous offense to be “relevant to a material, nonpropensity issue.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

We agree with the trial court’s decision to admit evidence regarding the 

“aggravated robbery” nature of Appellant’s warrant under Rule 404(b). This 

evidence was relevant to a material, non-propensity issue because it tended to show 

Appellant’s motive, intent, plan, knowledge, and absence of mistake or accident

regarding his conduct to evade arrest. See Sypniewski v. State, 799 S.W.2d 432, 434 

(Tex. App.—Texarkana 1990, pet. ref’d) (reasoning that a warrant for an extraneous 

offense inferentially shows motive to evade arrest). Because the trial court fairly 
14

reasoned that the arrest warrant was relevant to Appellant’s motive rather than 

Appellant’s character, there was no error under Rule 404(b).

Under Rule 403, a trial court’s decision to admit evidence is reasonable if “the 

probative value of that evidence is not substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading of the jury.” De La Paz, 279 

S.W.3d at 344; see TEX. R. EVID. 403. Rule 403 requires the balancing of these

factors: “(1) the probative value of the evidence; (2) the potential to impress the jury 

in some irrational, yet indelible, way; (3) the time needed to develop the evidence; 

and (4) the proponent’s need for the evidence.” Hernandez v. State, 390 S.W.3d 

310, 324 (Tex. Crim. App. 2012). A trial court is presumed to have engaged in the 

required balancing test when Rule 403 is invoked. Williams v. State, 958 S.W.2d 

186, 195–96 (Tex. Crim. App. 1997). There is a presumption in favor of admitting 

relevant evidence; the corollary presumption is that evidence admissible under 

Rule 404(b) “is more probative than prejudicial.” Santellan v. State, 939 S.W.2d 

155, 169 (Tex. Crim. App. 1997). 

With these presumptions in mind, we weigh the probative value and the 

proponent’s need for the evidence against the likelihood that the evidence will create 

unfair prejudice or mislead the jury. Hernandez, 390 S.W.3d at 324. Given the 

presumptions and the abuse-of-discretion standard of review, we cannot conclude 

that the trial court’s ruling was unreasonable. The existence and nature of the arrest 

warrant was probative of Appellant’s motive and intent to evade arrest and to kill 

police officers, and it compellingly served to make those facts of consequence—

motive and intent—more or less probable. See Montgomery v. State, 810 S.W.2d 

372, 389–90 (Tex. Crim. App. 1991). The State’s evidence of Appellant’s motive 

and intent was restricted to the testimony of others about Appellant’s conduct 

and demeanor when the police officers attempted to serve the warrant and

about the police officers’ injuries. The limited sources of evidence related to 
15

Appellant’s motive and intent may have increased the need for evidence of the arrest 

warrant and its nature. The probative value of the arrest warrant evidence was high,

and the State’s need for it was arguably high. 

Furthermore, there was only a moderate likelihood that evidence of the arrest 

warrant would mislead the jury. At trial, the underlying nature of the warrant—that 

is, the aggravated robbery charge—was referenced only in conjunction with the 

existence of the warrant and the fact that officers were attempting to arrest Appellant

in conformity with the warrant. No facts regarding the alleged aggravated robbery

were presented to the jury during the guilt/innocence phase of trial. During its 

closing argument, the State only referred to Appellant’s knowledge that the warrant 

existed and made no reference to the fact that the warrant was related to an 

aggravated robbery charge. Because the testimony regarding the aggravated robbery 

was brief and the evidence at trial focused on Appellant’s shooting of the officers in 

this case, the chance that the jury was distracted due to the extraneous aggravated

robbery charge was low. 

The State’s need to present the relevant, underlying nature of the warrant was 

relatively high, and the potential of this evidence to mislead the jury was low. 

Consequently, the trial court did not abuse its discretion when it determined that the 

danger of unfair prejudice did not substantially outweigh the probative value of the 

warrant, and its decision to admit evidence that the warrant was based on an 

aggravated robbery charge was reasonable under Rule 403. We overrule Appellant’s 

fourth issue on appeal.

In his fifth issue on appeal, Appellant asserts that the trial court erred when it 

overruled his relevancy objection to private investigator Raul Escalante’s testimony 

that aggravated robbery occurs when a deadly weapon is used during the commission 

of a robbery. See PENAL § 29.03(a)(1)–(3). The State contends that it had asked 

Escalante to explain the elements of aggravated robbery to impart to the jury that the 
16

seriousness of the extraneous felony charge provided the basis for Appellant’s 

motive and intent in evading arrest—essentially, to show that Appellant knew that 

he faced a long sentence and had planned a “final stand.”

To be admissible, evidence must be relevant. TEX. R. EVID. 402. Evidence is 

relevant if it has 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. Id. We conclude that this evidence—that 

Appellant faced a charge on the serious offense of aggravated robbery with a deadly 

weapon—was relevant to show Appellant’s intent when he evaded and shot police 

officers during the execution of the arrest warrant based on that charge.

Even if we were to decide that the admission of Escalante’s testimony 

regarding the elements of aggravated robbery constituted error, the admission of this 

evidence did not harm Appellant. Appellant subsequently testified on direct 

examination that he had known of the existence of a warrant for aggravated robbery

and admitted that he had been “on the run” for failing to appear in court on a charge 

of aggravated robbery.

The improper admission of evidence cannot constitute reversible error if the 

same or similar evidence is admitted without objection at another point in the trial. 

See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing

Leday v. State, 983 S.W.2d 713, 716–18 (Tex. Crim. App. 1998)); Lane v State, 151 

S.W.3d 188, 193 (Tex. Crim. App. 2004); Brooks v. State, 990 S.W.2d 278, 287 

(Tex. Crim. App. 1999). Accordingly, we overrule Appellant’s fifth issue on appeal.

In his sixth issue on appeal, Appellant complains that the trial court erred 

when it overruled his objection to Ranger Lewis’s testimony regarding the bullet 

points of entry and exit on Corporal Wester’s protective vest. He argues that the 

trial court abused its discretion when it allowed Ranger Lewis to testify as an expert 

on the bullet’s trajectory and the angle at which the bullet entered and exited 
17

Corporal Wester’s protective vest. Appellant bases his argument on the failure of 

the trial court to determine that Ranger Lewis was qualified to testify regarding 

ballistics, the State’s failure to identify Ranger Lewis as an expert prior to trial, and 

Ranger Lewis’s failure to testify regarding any training he had in ballistics that 

would qualify him to provide an expert opinion regarding the bullet’s trajectory or 

the angle at which Corporal Wester had been shot.

At trial, the State handed Corporal Wester’s protective vest to Ranger Lewis 

and asked him to use a flight path rod to “demonstrate the basic trajectory of the 

bullet for the jury.” Defense counsel sought a bench conference and noted: “This 

appears to be in the neighborhood of expert witness and if he’s going to testify as to 

trajectory or dynamics of a bullet, I would like to hear his qualifications before he 

starts making those statements.” The trial court noted that the State had asked 

Ranger Lewis whether he could show “where the bullet went through.” The trial 

court overruled the objection. 

After Ranger Lewis noted that he was uncertain whether he could get the rod 

through the vest, the State asked him: “Can you say, generally speaking, whether the 

entry was higher or lower than what the exit wound appears to be?” Ranger Lewis 

testified that the entry hole was slightly lower than the exit hole. The State asked:

“Could I ask you if that would be consistent with the wearer of the vest [lying] on 

his back while being shot?” The trial court overruled defense counsel’s renewed 

objection “to [Ranger Lewis’s] expertise.” Ranger Lewis answered: “I would say 

it’s consistent with someone [lying] down.” 

Appellant contends on appeal that, absent a showing of any ballistics training, 

Ranger Lewis was not qualified to determine whether the trajectory of the bullet or 

the hole in Corporal Wester’s vest was consistent with a man being shot while lying 

on his back. Consequently, he argues, the trial court erred when it overruled defense 

counsel’s Rule 702 objection and allowed Ranger Lewis to opine regarding bullet 
18

trajectory, gun angle, and Corporal Wester’s position when the bullet entered his 

vest. See TEX.R. EVID. 702 (“A witness who is qualified as an expert by knowledge, 

skill, experience, training, or education may testify in the form of an opinion or 

otherwise if the expert’s scientific, technical, or other specialized knowledge will 

help the trier of fact to understand the evidence or to determine a fact in issue.”). 

The State asserts that it did not offer Ranger Lewis’s testimony as that of an 

expert but that it offered the testimony only as Rule 701 lay testimony rationally 

based on his common-sense perception. See TEX. R. EVID. 701. Ranger Lewis did 

not perform any experiments or tests; he merely attempted to push a rod through the 

hole of the vest, commented that the entry hole was lower on the vest than the exit 

hole, and rendered a common-sense conclusion that the entry and exit holes were 

consistent with someone who was lying down when shot. We agree with the State 

that the complained-of testimony was lay testimony, not expert testimony. We are 

unable to conclude that the trial court abused its wide discretion when it permitted 

Ranger Lewis to testify regarding the entry and exit holes on the vest and the 

significance of the entry hole being lower than the exit hole. We note that 

Corporal Wester testified that he was lying on his back when Appellant shot him. 

We overrule Appellant’s sixth issue on appeal.

In his seventh issue on appeal, Appellant complains that the trial court erred 

when it overruled his objection to the untimely reading of enhancement paragraphs 

and the untimeliness of Appellant’s plea to the enhancement paragraphs. In his 

eighth issue on appeal, Appellant contends that, based on such untimeliness, the trial 

court erred when it overruled his objection to the range of punishment included in 

the jury charge. 

The reading of the enhancement paragraphs at the inception of the 

punishment phase of trial and a defendant’s plea to them are mandatory. CRIM.

PROC. art. 36.01(a)(1) (West 2017); Turner v. State, 897 S.W.2d 786, 788 (Tex. 
19

Crim. App. 1995). The purpose of this rule is to inform the defendant of the charges 

against him and to inform the jury of the precise terms of the particular charges

against the defendant. Turner, 897 S.W.2d at 788 (citing Warren v. State, 693 

S.W.2d 414, 415 (Tex. Crim. App. 1985). Error that results from a failure to read

the enhancement allegations and from a failure to obtain the defendant’s plea to the 

allegations can be cured by the State’s reopening of its case-in-chief and its reading 

of the enhancement allegations, by the defendant’s entry of a plea to the allegations, 

and by the State’s reintroduction of the previously introduced evidence unless the 

parties have stipulated to that evidence. Warren, 693 S.W.2d at 416 (citing Welch v. 

State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983) (explaining that the proper 

procedure to place the evidence before the jury in these circumstances is to permit 

the State to reintroduce the evidence unless the defendant stipulates to the same)); 

Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006, pet. ref’d). “When 

this is done, the issue is joined and a trial on the issue may be held.” Warren, 693 

S.W.2d at 416. 

In this case, the enhancement allegations were not set out in the indictments 

but, rather, were set out in the State’s notice of intent to seek enhancement of 

sentence. The prosecutor did not read the enhancement allegations set forth in the 

State’s enhancement notice at the inception of the punishment phase of trial;

consequently, Appellant did not enter a plea at that time. Instead, at the close of the 

State’s punishment evidence—but before the State rested—the prosecuting attorney 

informed the trial court that he needed to read the enhancement allegations and 

obtain Appellant’s plea to them. The trial court allowed the prosecutor to read 

the enhancement allegations over defense counsel’s objection that “[t]his is very out 

of order” and “[t]his should have been done before we -- this should have been done 

-- to do it at the end of the State’s case, I don’t think it is proper to do it at this point in 

time.” The prosecutor read the enhancement allegations. Defense counsel renewed 
20

his objection “as to the timeliness of this procedure,” and Appellant entered a plea 

of true. The trial court did not err when it permitted the State to “untimely” read the 

enhancement allegations and Appellant to enter a plea to the allegations. See Welch, 

645 S.W.2d at 285 (recognizing that failure to read enhancement allegations and take 

defendant’s plea may be cured).

After the close of evidence, defense counsel objected that, “based upon [the 

prosecutor’s] untimely reading of the enhancement paragraph,” the trial court’s 

punishment charge “should read not 25 to 99, but instead 5 to 99 or life.” The 

prosecutor expressed his belief that the alleged error had been cured when it read the 

enhancement allegations and Appellant entered his plea to the allegations. The trial 

court overruled the objection. Under the charge given to the jury, if the jury found 

the State’s enhancement allegations to be true, it was to assess punishment for a term 

of not less than twenty-five years nor more than ninety-nine years or life. That was 

the proper range of punishment because the untimeliness in the reading of the 

enhancement allegations and the entry of Appellant’s plea thereto was cured. And, 

because Appellant pleaded true to those allegations, the State was not required to 

reintroduce its punishment evidence. See Hopkins v. State, 487 S.W.3d 583, 586 

(Tex. Crim. App. 2016); Wilson v. State, 671 S.W.2d 524, 525–26 (Tex. Crim. App. 

1984) (plea of true to enhancement allegation constitutes evidence and satisfies 

State’s burden of proof). We overrule Appellant’s seventh and eighth issues on 

appeal.

In his first three issues, Appellant challenges the trial court’s denial of his 

motion for new trial. In his first issue, Appellant complains that the trial court erred

when it denied his motion for new trial “based on new evidence discovered as 

a result of the State’s failure to disclose exculpatory information prior to 

trial.” Appellant asserts in his second and third issues that the trial court’s denial 

of the motion for new trial constituted an abuse of discretion because the 
21

State’s suppression of the “exculpatory evidence” violated his due process rights and 

the mandate of Article 39.14(h) of the Texas Code of Criminal Procedure. See CRIM.

PROC. art. 39.14(h) (West Supp. 2019) (requiring the State to disclose “any 

exculpatory, impeachment, or mitigating document, item, or information in the 

possession, custody, or control of the state that tends to negate the guilt of the 

defendant or would tend to reduce the punishment for the offense charged”). The

exculpatory evidence that Appellant refers to in these three issues relates to the 

extent of the projectile’s penetration—full or partial—into Corporal Wester’s 

protective vest. 

To his motion for new trial, Appellant attached appellate counsel’s affidavit 

and an exhibit consisting of a letter from the assistant district attorney—sent after 

Appellant’s trial—informing trial and appellate counsel that the manufacturer of 

Corporal Wester’s protective vest, Safariland, had informed Ranger Lewis that the 

hole on the inside front panel of the protective vest had been caused by the velocity, 

heat, and pressure of a projectile creating a rupture inside the vest rather than by the 

exit of the projectile. In his motion, Appellant specifically argued that this

information—of which he and counsel had been unaware—constituted exculpatory, 

impeachment, or mitigating information that tended to negate his guilt or, 

alternatively, would have reduced his punishment.

At the hearing on Appellant’s motion for new trial, Assistant District Attorney 

Michael Munk testified that, on December 5, 2017, four days after Appellant was 

sentenced, Ranger Lewis informed Munk that a Safariland representative had 

indicated that the projectile that struck the front of Wester’s protective vest may not 

have penetrated the vest’s front panel. Munk subsequently informed Appellant’s 

attorneys. 

Appellant’s lead trial counsel, Michael McLeaish, testified that he 

believed that the information that Munk had provided would have been critical to 
22

Appellant’s defense because it would have provided a competing theory to 

testimony to the effect that Appellant had intentionally shot at Corporal Wester’s 

“heart,” which indicated an intent to kill. Appellant’s other trial counsel testified 

that, had he known of the Safariland information prior to trial, he would have 

suggested to McLeaish that the information be used to show that Appellant had fired 

randomly from the bedroom, to raise doubt that Appellant had stood over 

Corporal Wester and had attempted to execute him “with some type of kill shot,” 

and to attempt “to minimize the specific intent” for the capital murder charge. 

Ranger Lewis recalled that he had testified at trial that the bullet had 

penetrated through the vest, and he explained during the hearing on the motion for 

new trial that it was his opinion that the fact of whether the bullet did or did not 

penetrate Corporal Wester’s vest was irrelevant to Appellant’s intent. 

Corporal Wester testified that neither the assertions made by Safariland’s

representative nor the depth of the projectile’s penetration of his protective vest 

would change his trial testimony that, while he was lying on his back, he saw

Appellant stand over him—“[j]ust feet away”—and fire a shot into his chest in an 

attempt to kill him. 

At the conclusion of the hearing, the presiding judge acknowledged that the 

information should have been provided to Appellant but concluded that the evidence 

“[did] not rise to the level that would require a new trial” and “overruled” the motion. 

We review a trial court’s denial of a motion for new trial for an abuse of 

discretion. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). The trial 

court abuses its discretion when it denies a motion for new trial only when no 

reasonable view of the record could support the trial court’s ruling. Id. This is a 

deferential standard of review that requires us 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, we do not substitute our own judgment for that of the trial court, and 
23

we uphold the trial court’s ruling if it is within the zone of reasonable disagreement.

Id.

Appellant’s first, second, and third issues turn on his assertions that the new 

evidence was exculpatory, favorable, and material. Exculpatory evidence is that 

which may justify, excuse, or clear the defendant from fault, while impeachment 

evidence is that which disputes or contradicts other evidence. Harm v. State, 183 

S.W.3d 403, 408 (Tex. Crim. App. 2006); see Ex parte Lalonde, 570 S.W.3d 716, 

724–25 (Tex. Crim. App. 2019) (citing Giglio v. United States, 405 U.S. 150, 154 

(1972)). Whether exculpatory or impeaching, for evidence that was suppressed by 

the State to be considered material, there must be a reasonable probability that the 

result of the trial would have been different if the suppressed evidence had been 

disclosed to the defense. Strickler v. Greene, 527 U.S. 263, 281–82, 289 (1999); see 

United States v. Bagley, 473 U.S. 667, 682 (1985) (declaring that favorable evidence 

is material and that constitutional error results from its suppression by the 

government if there is a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been different); see also

Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression of material evidence 

violates due process); Branum v. State, 535 S.W.3d 217, 225 (Tex. App.—Fort 

Worth 2017, no pet.) (addressing production under Article 39.14). 

The State argues that the new evidence—that the projectile fired into 

Corporal Wester’s chest did not penetrate his protective vest—“was merely 

impeaching” and provided no justification for a new trial. We agree. Nothing in the 

record suggests that the projectile’s failure—if it failed—to completely penetrate the 

protective vest would have constituted evidence that Appellant had fired his gun 

recklessly rather than intentionally. The new evidence was thus not exculpatory and, 

at best, would have impeached Ranger Lewis’s and Corporal Wester’s testimony 

that the projectile had completely penetrated Corporal Wester’s protective vest. 
24

Furthermore, we are unable to conclude on the record before us that the result of the 

trial or the amount of the punishment would have been different if the new evidence

had been disclosed to Appellant. Thus, the new evidence was not material. Even in 

the absence of the suppressed evidence—Appellant received a fair trial that resulted 

in a verdict worthy of confidence. We overrule Appellant’s first, second, and third 

issues.

We affirm the judgments of the trial court.

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

January 16, 2020

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

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

 1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.