NUMBER 13-22-00328-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

ALTON CURRIE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 85th District Court 

of Brazos County, Texas.

 

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña

Memorandum Opinion by Justice Tijerina

Appellant Alton Currie appeals his conviction for two counts of aggravated assault 

against a public servant. See TEX. PENAL CODE ANN. § 22.02(b)(2)(B). Appellant received 

two concurrent twenty-five-year terms of incarceration. By five issues that we have 

reorganized and renumbered, appellant contends that the trial court (1) should have 

granted his request to include the lesser-included offense of deadly conduct in the jury 
2

charge, (2) improperly admitted evidence of extraneous acts in the guilt/innocence phase 

of trial, (3) improperly admitted inadmissible photographs during the punishment phase 

of his trial, (4) erred by dismissing a juror after the jury had been empaneled and sworn, 

and (5) abused its discretion in denying appellant’s motion for mistrial. By a sixth issue, 

appellant contends that he was denied a fair trial due to cumulative error. We affirm.1

I. DEADLY CONDUCT

By his first issue, appellant contends that he was entitled to a jury instruction on

the lesser-included offense of deadly conduct. Specifically, appellant argues that the jury 

could have inferred from the evidence that he did not intentionally point his weapon at 

officers and instead acted recklessly. See id. (providing that a person commits the offense 

of deadly conduct if he recklessly places another person in danger of serious bodily 

injury).

A. Applicable Law and Standard of Review

Upon the defendant’s request, a lesser-included offense instruction shall be 

included in the jury charge if:

(1) the requested charge is for a lesser-included offense of the charged 

offense; and

(2) there is some evidence that, if the defendant is guilty, he is guilty only 

of the lesser offense.

Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006) (cleaned up).

Whether one offense is a lesser offense of another is a question of law, which does 

not depend on the evidence. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011).

1 This appeal was transferred to this Court from the Tenth Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3

We determine if deadly conduct is a lesser-included offense of aggravated assault against

a public servant by comparing the elements “to determine whether, in proving [aggravated 

assault against a public servant,] as it was alleged in the indictment, the State necessarily 

had to prove all of the elements of deadly conduct, plus something more.” See Guzman, 

188 S.W.3d at 189. We review the pleadings, and we compare the statutory elements as 

charged in the indictment to the requested lesser offense’s elements. Amaro v. State, 287 

S.W.3d 825, 828 (Tex. App.—Waco 2009, pet. ref’d). If deadly conduct is a lesserincluded offense of aggravated assault against a public servant, the first prong of the test 

is met, and we then analyze the second prong. Guzman, 188 S.W.3d at 189.

Under the second prong, we must determine if the record contains some evidence 

that would support a jury’s rational finding that if appellant is guilty, “he is guilty only of 

deadly conduct, not [aggravated assault against a public servant].” See id. at 190. This 

prong is met if there is “(1) evidence that directly refutes or negates other evidence 

establishing the greater offense and raises the lesser-included offense or (2) evidence 

that is susceptible to different interpretations, one of which refutes or negates an element 

of the greater offense and raises the lesser offense.” Ritcherson v. State, 568 S.W.3d 

667, 671 (Tex. Crim. App. 2018).

“An instruction on a lesser-included offense is required only when there is some 

admitted evidence directly germane to that offense.” Roy v. State, 509 S.W.3d 315, 317 

(Tex. Crim. App. 2017). We perform our analysis of the second prong by reviewing all the 

evidence “without regard to the evidence’s credibility or potential contradictions or 

conflicts.” Id. The instruction on the lesser-included offense is required if there is more 
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than a scintilla of affirmative evidence establishing “that the lesser-included offense is a 

valid, rational alternative to the charged offense.” Id. (citing Goad v. State, 354 S.W.3d 

443, 446 (Tex. Crim. App. 2011) (internal quotations omitted)). “Meeting this threshold 

requires more than mere speculation—it requires affirmative evidence that both raises 

the lesser-included offense and rebuts or negates an element of the greater offense.” 

Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).

As charged here, to convict appellant of aggravated assault against a public 

servant, the State had to prove that he committed the offense of assault and used or 

exhibited a deadly weapon during the commission of the assault. See TEX. PENAL CODE 

ANN. § 22.02. Appellant committed the offense of assault as charged in the indictment, if 

he intentionally or knowingly threatened a person that he knew was a public servant while 

lawfully discharging his official duty with imminent bodily injury, and he used a deadly 

weapon. Id. at § 22.01. To have committed deadly conduct, appellant must have 

recklessly engaged in conduct that placed another person in imminent danger of serious 

bodily injury. Id. at § 22.05(a). Reckless conduct occurs when the person is aware of the 

risk but consciously disregards a substantial and unjustifiable risk that the circumstances 

exist or that the result will occur. See id. § 6.03(c).

B. Pertinent Facts

Officers Alexander Tran and Caleb Sanders testified that on August 24, 2020, they 

responded to reports of a potential shooting or shots being fired. Officer Tran stated that 

the officers set up a perimeter of the area where shots were heard to prevent the public 

from entering.
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Officer Tran testified that appellant drove a truck to his position, rolled down his 

window, mumbled something to Officer Tran, and appellant turned his body towards the 

vehicle’s center console. Officer Tran observed appellant pick up a gun and point it at 

him. Specifically, Officer Tran said that he “observed” appellant “grab the pistol and then 

turn it towards [him].” Officer Tran continued, “The barrel was facing towards my chest at 

which point I identified it was a gun.” Officer Tran stated, “He points it at me to where if 

he were to pull the trigger, the bullet would have entered my body—would have caused 

me bodily harm.”

Officer Tran testified that he commanded appellant to “drop the gun”; Officer Tran 

“grabbed the gun in an attempt to move the barrel out of [his] direction.” Officer Tran 

stated that a short struggle ensued through the truck’s window. Officer Tran pushed the 

gun, broke contact with the gun, and appellant retreated to the “back of the truck.” The 

trial court admitted State’s Exhibit 5, which is a recording of the incident from Officer 

Tran’s body camera. Officer Tran testified that the video shows appellant “reaching 

towards a pistol that’s . . . on top of the center console of the truck.” The trial court 

admitted State’s Exhibits 7 and 8, which Officer Tran described as “a splice of [his] video 

recording where it slows down enough to where you can actually see the gun.” Officer 

Tran said that State’s Exhibit 7 shows “where [appellant] presented the gun . . . .” State’s 

Exhibit 8 shows “[a] magnified snapshot of the gun,” which shows that appellant’s finger 

is on the gun’s trigger while pointing the gun at Officer Tran. The State asked Officer Tran 

to describe what he felt when appellant pointed the gun at him; Officer Tran replied, “I 

was thinking I was going to get shot and not make it home to my family.” Officer Tran 
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agreed with the State that he was in fear for his life “[a]s well as [his] teammates’ life.”

Officer Tran stated that appellant then drove his truck towards Officer Sanders’s

position, who was “further down the road.” Officer Tran broadcasted that a person with a 

gun was approaching Officer Sanders. According to Officer Sanders, he heard the 

broadcast, while observing appellant driving his vehicle in his direction. Officer Sanders 

testified that he moved to the back of his patrol car for cover, and as appellant approached 

his position, he saw appellant pointing the gun at him. Specifically, Officer Sanders said, 

“I saw the barrel of a handgun pointed in my direction.” Officer Sanders demonstrated for 

the jury how appellant held the gun and explained, “It was being held over the dashboard 

by [appellant], held up and down; barrel was pointed directly at me.” According to Officer 

Sanders, the reason the video of the incident shows him jumping back when appellant 

passed by him was “[b]ecause seeing that gun pointed at me startled me just a little.”

Officer Sanders testified that he knew that appellant saw him because appellant “was 

looking at” him. Officer Sanders said, “I can say I’m pretty confident that [the gun] was 

aimed at me, yes, because I could see down the barrel.”

Appellant then drove his truck off the road and drove through a pasture. Officers 

Tran and Sanders pursued appellant, and Officer Austin Garretson joined the pursuit. 

Eventually, appellant stopped and exited his truck, and the officers took him into custody. 

Officer Garretson testified that he saw the gun on top of the truck’s center console.

Officers Tran and Sanders transported appellant to the hospital, where according 

to Officer Tran, appellant was “very threatening, non-compliant.” Specifically, Officer Tran 

said, “[appellant] made threats to harm my children, my wife; to get a large amount of 
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people to come against me and hurt me and my partners as well as, again, the medical 

clinicians that were trying to provide him medical services.” The State asked Officer Tran 

if appellant made “statements . . . that he was going to kill” him; Officer Tran replied, “Yes, 

he did.” According to Officer Tran, appellant also threatened to kill Officer Sanders. Officer 

Tran testified that appellant “was trying to pull [his handcuffs] at its maximum extension, 

trying to free himself from those handcuffs as well as on multiple occasions attempt[ing]

to strike me while he was restrained.” Officer Sanders relayed that appellant said that “he 

was going to take the handcuffs and bash my skull in.” 

On redirect examination by the State, Officer Tran stated that appellant said, “Ya’ll 

F’ed up by not killing me,” and explained appellant said,

once he frees himself from the handcuffs he’s going to use the handcuffs to 

stab me in the eye; he’s going to hurt Officer Sanders; he’s going to get 60 

of his local buddies to come jump on me, my family; he mentioned that he 

was part of another organization that had 30,000 or so people that will come 

to his aid, free him from his arrest, and then take vengeance upon me and 

my partner Officer Sanders.

Officers Tran and Sanders eventually transported appellant to the jail. The forensic 

crime scene unit collected a loaded Kimber .45 caliber semiautomatic handgun with the 

hammer fully back and the safety off from the top of appellant’s truck’s console, and the 

unit found two magazines loaded with “.45 caliber ACP bullets” inside the truck’s center 

console. According to Officer Eric Henderson, someone would have had to have

“consciously pull[ed] the hammer back or cock it so the hammer locks back to fire.” Officer 

Henderson testified that someone not prepared to use the gun would not have had his 

finger on the trigger, and instead, the person would have put his finger “usually above the 

trigger parallel with the slide.” Officer Henderson said, “That’s where I would hold it until I 
8

had it—thought I was going to have to fire it, yes.”

C. Analysis

Deadly conduct has been determined to be a lesser-included offense of 

aggravated assault against a public servant. See Amaro, 287 S.W.3d at 829. Thus, we 

will analyze whether the second prong is met.

The evidence at trial established that appellant intentionally or knowingly pointed 

a gun at Officer Tran, who testified that appellant pulled out a gun, and pointed it at him.

Additionally, Officer Sanders stated that appellant pointed the gun directly at him with his 

finger on the trigger. Moreover, there is nothing in the record supporting a finding that 

appellant merely acted recklessly. See Cavazos, 382 S.W.3d at 385. On appeal, 

appellant argues that he may have accidently pointed the gun at the officers. However, 

there is no evidence supporting such a finding. See id. Instead, the evidence shows that 

appellant pointed a loaded gun with his finger on the trigger at two officers, appellant 

struggled with Officer Tran for control of the gun, appellant attempted to flee from the 

officers, and later threatened to kill both officers and their families.

We are unable to conclude that appellant’s actions were merely reckless, and 

Officers Tran’s and Sanders’s testimonies that appellant pointed a loaded gun with his 

finger on the trigger would have precluded a rational jury from finding him guilty only of 

deadly conduct. See TEX. PENAL CODE ANN. § 6.03(c); see also Benavides v. State, No. 

08-07-00193-CR, 2009 WL 3031175, at *1 (Tex. App.—El Paso Sept. 23, 2009, pet. ref’d) 

(mem. op., not designated for publication) (concluding that the defendant was not entitled

to an instruction for deadly conduct as a lesser-included offense of aggravated assault 
9

because the evidence established that the defendant intentionally pointed the gun at the 

victim). While on appeal appellant suggests that he did not intend to harm anyone or 

threaten the officers because he accidently pointed the gun at them, the evidence that 

appellant pointed the loaded gun at both officers allowed the jury to find that appellant 

intended to cause or knew that he would cause the officers to fear imminent bodily injury. 

See TEX. PENAL CODE ANN. §§ 6.03(b); 22.02(a)(2); Godsey v. State, 719 S.W.2d 578, 

584 (Tex. Crim. App. 1986) (explaining that when we are determining whether the 

evidence supports a finding of recklessness, even a statement that a defendant did not 

intend to kill the victim “cannot be plucked out of the record and examined in a vacuum”); 

Martinez v. State, 16 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

The only evidence regarding appellant’s mental state was presented by the State and 

included witnesses who stated that he pointed a loaded gun at them with his finger on the 

trigger while the officers were attempting to detain appellant. There was no evidence 

negating that appellant acted knowingly or intentionally.

Because the evidence shows that appellant acted intentionally or knowingly when 

he pointed the gun at the officers, and there is no evidence that appellant merely acted 

recklessly, we conclude that appellant was not entitled to an instruction on the lesserincluded offense of deadly conduct. See Guzman, 188 S.W.3d at 188; Dixon v. State, 358 

S.W.3d 250, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (explaining that the 

defendant had not testified “about any lack of intent to strike [the complainant], nor does 

any evidence from any source show he lacked the intentional or knowing mental state” 

and that “[i]nstead, the only evidence shows he argued with [the complainant] and chased 
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her in his truck while she ran away screaming, narrowly missing her as she rolled out of 

the way into a hole under a house that he struck”); see also Stephenson v. State, No. 04-

22-00031-CR, 2023 WL 4337711, at *5–6 (Tex. App.—San Antonio July 5, 2023, no pet. 

filed.) (mem. op., not designated for publication) (relying on Dixon, 358 S.W.3d at 258, 

and overruling the appellant’s complaint that the trial court should have provided the 

lesser-included offense instruction for reckless conduct because “there is no evidence 

that [the appellant] lacked the intentional or knowing mental state; and, when viewed in 

the context of the entire record, the statements that [the appellant] highlights do not 

negate intent”); Benavides, 2009 WL 3031175, at *1 (concluding that the appellant acted 

intentionally and was not entitled to an instruction on deadly conduct because the 

evidence showed that the appellant pointed a gun at the victim in order for the victim to

let him go and leave him alone and then pointed the gun at the victim again to scare the 

victim away). Accordingly, we conclude that the trial court did not abuse its discretion in 

refusing to instruct the jury on the lesser-included offense of deadly conduct. See Dixon, 

358 S.W.3d at 258 (“We decline to hold that the trial court abused its discretion . . . when 

the testimony as a whole does not negate intent.”). We overrule appellant’s first issue.

II. ADMISSION OF EXTRANEOUS EVIDENCE

By his second issue and several sub-issues, appellant contends that the trial court 

erred by allowing evidence of extraneous acts in the guilt/innocence phase of trial. 

Specifically, appellant complains that during the guilt/innocence phase of the trial, the trial 

court improperly admitted extraneous evidence that (1) there had been either “shots fired” 
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or a “shooting”2; and (2) a murder had occurred.

A. Applicable Law

Evidence that a defendant may have committed other crimes or bad acts “cannot 

be introduced at the guilt-innocence phase to show that the defendant acted in conformity 

with his criminal nature and therefore committed the crime for which he is on trial.” 

Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992). However, extraneous 

offense evidence may be admissible for another purpose such as to prove motive, intent, 

absence of mistake, opportunity, preparations, plan, knowledge, identity, or absence of 

mistake or lack of accident. TEX. R. EVID. 404(b). To show that an act constitutes evidence 

of an extraneous offense, the evidence must show that a crime or bad act occurred and 

that the defendant was connected to that crime or bad act. Lockhart, 847 S.W.2d at 573; 

Johnson v. State, 190 S.W.3d 838, 839–40 (Tex. App.—Forth Worth 2006, no pet.) 

(holding that the trial court did not err in admitting audiotape because the appellate court 

was “unable to identify any evidence of an extraneous offense or bad act on the 

audiotape”).

B. Evidence of a Shooting or that Shots Had Been Fired

2 Appellant in a first sub-issue to his second issue, also argues that evidence of shots being fired 

or of a shooting occurring was not relevant. Appellant does not cite to any portion of this voluminous record 

wherein he objected to this evidence on that ground. See TEX. R. APP. P. 38.1(i).

Moreover, the pre-trial hearing held by the trial court concerned whether the trial court should grant 

or deny appellant’s motion in limine. However, appellant’s motion merely requested that the State not be 

permitted to mention any evidence of extraneous offenses or acts of misconduct to the jury until the 

admissibility of such evidence had been established outside the jury’s presence. “That is precisely the 

proper purpose of a motion in limine.” Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003). “A 

trial judge’s grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing 

for appellate review.” Id. Therefore, appellant has not shown that his relevance objection was preserved. 

See id. We overrule appellant’s first sub-issue to his second issue.
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Here, the evidence presented at trial merely showed that Officers Tran and 

Sanders had been dispatched to the area due to reports of either shots being fired or a 

shooting occurring. The trial court did not admit any evidence during the guilt/innocence 

phase of appellant’s trial either showing that appellant was involved in the shooting or 

that appellant had been accused of firing the shots that had been reported to the officers. 

“If the evidence fails to show . . . that the accused was connected to the offense, then 

evidence of an extraneous offense is not established.” McKay v. State, 707 S.W.2d 23, 

32 (Tex. Crim. App. 1985) (en banc). Therefore, because the evidence did not show that 

appellant committed the crime or bad act of either firing shots or shooting a gun, no 

improper extraneous offense evidence was admitted. See id.; see also Montemayor v. 

State, No. 13-14-00173-CR, 2016 WL 4272384, at *4 (Tex. App.—Corpus Christi–

Edinburg Aug. 11, 2016, pet. ref’d) (mem. op., not designated for publication) (concluding 

that “no extraneous evidence was offered or admitted because neither the witness nor 

the State referenced either a crime or bad act committed by [the appellant]”).

Accordingly, the trial court did not abuse its discretion in admitting the complainedof evidence in this manner. See Lockhart, 847 S.W.2d at 573 (explaining that because a

“‘diary’ did not tend to connect [the] appellant to any prior bad acts or crimes appellant 

may have committed” and “it did not depict any criminal activity or bad acts, let alone 

those offered at his trial,” the “[diary] was not excludable as an extraneous offense”); 

Johnson, 190 S.W.3d at 839–40; see also Wood v. State, No. 13-10-00556-CR, 2013 WL 

388150, at *6 (Tex. App.—Corpus Christi–Edinburg Jan. 31, 2013, no pet.) (mem. op., 

not designated for publication) (following Lockhart and determining that recorded 
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jailhouse phone calls did not tend to connect the appellant “to any prior bad acts or crimes 

that he may have committed,” and therefore, the phone calls did not constitute evidence

of an extraneous offense or bad act). We overrule appellant’s second issue.

By a second sub-issue to his second issue, appellant contends the evidence that 

the officers were responding to a call that shots were fired or a shooting occurred “should 

have been excluded because its probative value is substantially outweighed by the 

danger of unfair prejudice.” Appellant bases his argument on an assertion that the 

evidence constituted extraneous offense evidence and acknowledges in his brief that 

there is no evidence “that [a]ppellant was the person involved in the shooting incident or 

that he fired any shots during this event.” Appellant then claims, without citation to any 

authority, that “[e]vidence concerning a matter the State is not required to prove can have 

little, if any, probative value.” According to appellant, the jury could have reasonably 

inferred that “the prior shooting somehow involved [a]ppellant and misled the jury into 

believing that the charged offenses were somehow related to the introduced evidence of 

the shooting.” Without proper argument and citation to appropriate authority, we are 

unable to conclude that appellant’s assertions require reversal. See TEX. R. APP. P. 

38.1(i); see also Lockhart, 847 S.W.2d at 571 (“[E]vidence of extraneous offenses that 

are indivisibly connected to the charged offense and necessary to the State’s case in 

proving the charged offense may be admissible as relevant evidence to explain the 

context of the offense for which the defendant is on trial.”). Accordingly, we overrule 

appellant’s second sub-issue to his second issue.
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C. Evidence that a Murder Occurred

Next, by a third sub-issue to his second issue, appellant complains that the trial 

court admitted evidence that a murder occurred or evidence “pertaining to the murder.”

However, appellant does not specifically identify in his brief which evidence was 

introduced during the guilt/innocence phase of the trial that a murder occurred or that 

pertained to a murder. Our review of the record cites provided by appellant shows that at 

his trial, after the State published a video to the jury, he objected to it on the basis that 

someone can be heard on an officer’s radio stating, “I have one that’s unconscious. One 

that’s unresponsive.” However, appellant did not object to admission of this video prior to 

the trial court’s admission and publication to the jury. See TEX. R. APP. P. 33.1.

Nonetheless, assuming without deciding that the issue is preserved and these 

statements pertained to a murder or are evidence that a murder occurred, appellant does 

not specifically state that the complained-of evidence connected him to the murder. And, 

upon our review of this evidence, there is nothing in the record connecting him to a 

murder. See McKay, 707 S.W.2d at 32. Therefore, because the evidence did not show 

that appellant committed the murder, no improper extraneous offense evidence was 

admitted about the murder. See id.; see also Montemayor, 2016 WL 4272384, at *4.

Therefore, the trial court did not abuse its discretion by admitting this evidence. We 

overrule appellant’s third sub-issue to his second issue.

III. ADMISSION OF PHOTOGRAPHS AT THE PUNISHMENT PHASE

By what we construe as appellant’s third issue and multiple sub-issues, appellant 

contends that at the punishment phase, the trial court improperly admitted evidence 
15

related to the offense of murder, an offense for which according to appellant, he has not 

been tried. Specifically, appellant complains about State’s Exhibits 32, 33, 45, 46, and 47,

which are photographs of the murder scene and of the victim.

A. Pertinent Facts

During the punishment phase of appellant’s trial, evidence was presented that after 

fleeing from Officers Tran and Sanders, appellant eventually turned onto a residential 

driveway (the murder scene) where he was arrested and placed in custody. The trial court 

admitted State’s Exhibit 21, a recording of a 911 call made by Jarrell Currie wherein he 

reported that appellant, his cousin, shot his friend, James Zikus.

3 Jarrell reported that he 

left the murder scene because appellant had pointed the gun at him. Jarrell stated that 

appellant was still in the area, and he did not want to go back to the murder scene.

According to Jarrell, appellant used a .45 caliber gun to shoot Zikus, and he was not sure 

if Zikus was alive. Jarrell stated that when appellant pulled out his gun, he told appellant 

to put the gun away and that is when appellant shot Zikus.4

Officer Jared Watkins testified that he went to the murder scene on the same date 

that appellant committed the offenses of aggravated assault against a public servant. 

Officer Watkins stated that he had been dispatched to the murder scene due to a report 

that “shots had been fired and possibly someone was injured.” Officer Watkins testified 

that he parked his patrol vehicle, and he encountered Jarrell. Officer Watkins stated that 

once appellant had been removed from the murder scene, he discovered a “deceased 

3 The record shows that Jarrell died prior to appellant’s trial.

4 Appellant objected to State’s Exhibit 21 based on hearsay, the right of confrontation, and the right 

to due process. The trial court overruled appellant’s objections, which he does not challenge on appeal.
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individual.”

The State offered State’s Exhibit 22, which was the video taken from Officer 

Watkins’s body camera. Appellant objected based on hearsay, the confrontation clause, 

and argued that it was cumulative. The State argued for admission and then explained

that Officer Watkins’s body camera “shows him going in, finding the victim, removing the 

victim from the scene because it’s still an active scene when [appellant] arrives back to 

the [murder scene] and parks right outside the doors where he’s still in direct line of sight 

and [has the] ability to fire his weapon.” Appellant’s trial counsel replied, “We don’t object 

to that part. We don’t object to that part of the video,” and stated that the objection was in 

reference to “[Jarrell’s] statement.” The trial court overruled appellant’s objections and 

admitted State’s Exhibit 22.

State’s Exhibit 22 shows Officer Watkins’s body-camera video, wherein Jarrell 

explains to Officer Watkins that a shooting had occurred. Officer Watkins instructed Jarrell 

to write down the name of the shooter and the victim; Jarrell reported that appellant was 

the shooter and Zikus was the victim. Officer Watkins’s body-camera video captured 

when appellant parked his truck at the murder scene prior to being arrested. The video 

shows Officer Watkins dragging Zikus’s body from where he was lying down.

The State then offered State’s Exhibits 23 through 48, which are “stillshots” taken 

from State’s Exhibit 22. State’s Exhibit 23 through 26 show various angles of the scene, 

with portions of Zikus’s body shown. State’s Exhibits 27 through 30 are pictures of the 

property where the murder occurred. However, there is nothing in State’s Exhibits 27 

through 30 showing Zikus’s body. State’s Exhibit 31 through 33 are pictures of the 
17

property, which show a blue blanket covering Zikus’s body. State’s Exhibits 34 through 

44 are pictures of the murder scene, and Zikus’s body is not shown.

State’s Exhibit 45 is a picture of what appears to be blood stains leading to where 

Zikus’s body was located. Zikus’s body is not shown in the picture; however, a portion of 

the blue blanket covering Zikus’s body is partially shown. State’s Exhibit 46 is a picture of 

Zikus’s body showing what appears to be a bullet wound to the upper portion of the left 

side of his chest. State’s Exhibit 47 is a close-up picture of Zikus’s face.

As to State’s Exhibit 45, appellant said, “[W]e object on the basis that this particular 

photograph has no value to the jury, only to peak their emotions or inflame them. Just 

shows a drag mark when the cops removed [Zikus] from where he was to the outside. 

Object to that being inflammatory.” As to State’s Exhibits 46 and 47, appellant explained 

that those photographs, which are photos “of [Zikus] outside where the officers had 

moved him” do not serve a “purpose other than to appeal to [the] jury’s emotions or 

inflame the jury. No evidential value to those photographs.” The State responded that it 

had to prove that Zikus was murdered and that Zikus “is the person that an autopsy was 

done on” and that “he was the person that was shot.” The State explained that one of the 

objected-to pictures was the “[o]nly picture of his face up close to identify him.” As to 

State’s Exhibit 45, the State argued that the video had already shown Officer Watkins 

dragging Zikus’s body. The trial court then overruled appellant’s objections to State’s 

Exhibits 45, 46, and 47, which were then admitted.

Officer Watkins testified that when he moved Zikus’s body, Zikus did not respond 

and that it was “highly possible that he was” already deceased. Officer Watkins stated 
18

that once he knew that appellant had been taken into custody, he looked at Zikus’s body

and “observed a—what appeared to be a bullet hole in his chest.” According to Officer 

Watkins, when the paramedics arrived, he “observed” Zikus’s back “to see if there was 

an exit wound”; however, Officer Watkins did not see one.

Officer Henderson testified that he processed the murder scene, and he observed 

Zikus’s body lying “on the ground deceased in front of a Ford pickup truck that was at one 

of the entrances to the shed.” Officer Henderson stated that State’s Exhibit 39 shows 

among other things “[a] .45 caliber cartridge casing,” while State’s Exhibit 41 is a picture 

of “the cartridge casing.” Officer Henderson agreed that he had previously testified during 

the guilt/innocence portion of the trial that he found a .45 caliber handgun in appellant’s 

truck where the .45 caliber casing would have fit inside.

Officer Henderson testified that he was present when Zikus’s body was removed

by the funeral home from the murder scene. Officer Henderson said that he observed a 

gunshot wound “toward the left side” of Zikus’s chest, “not too far from the heart I would 

imagine”; however, when Zikus’s body was turned over, he did not observe an exit wound.

According to Officer Henderson, he subsequently “learn[ed]” that Zikus’s body did have 

an exit wound. 

Mike Fleeman, a “drywall finisher,” testified that he had known Zikus since his 

teenage years and that he had met appellant “at a biker bar” in 2009. The three men all 

rode Harley-Davidson bikes. According to Fleeman, the men would congregate at Jarrell’s

property to do mechanical work on their motorcycles, play dice, and to drink alcohol. 

Fleeman testified that appellant stayed at Jarrell’s property in a camper that was located 
19

next to the garage, while Jarrell stayed in a home on the property. Fleeman stated that 

every time that he saw appellant, “he had a gun on him,” which “was always within reach 

if it wasn’t on his person” and which appellant kept “[i]n a Versacarry holster.” Fleeman 

identified appellant’s holster as that shown in State’s Exhibit 59.

The State showed Fleeman State’s Exhibit 64, which is a picture of Zikus’s face 

taken after his death. Appellant did not object. The State asked Fleeman to identify the 

person shown in the picture, and Fleeman replied, “James Zikus.” Fleeman identified 

appellant’s holster shown in State’s Exhibit 62, and appellant’s gun found in his truck as 

shown in State’s Exhibit 18. Fleeman relayed that on an occasion prior to the murder he 

and Jarrell were sitting and “talking, and [appellant] just pulled—just pulled—pointed a 

gun at [him]. Pointed it right at [his] face.” The State asked, “[W]hich gun did he point at 

you?” Fleeman replied, “That Kimber that you just showed me.” Fleeman testified that the 

pair had not been arguing when appellant “pointed [the gun] right at [his] face.” Fleeman 

said that he grabbed the gun “and took it,” and he then “emptied the 

magazine . . . emptied the chamber, and handed those to Jarrell . . . and . . . stuck the 

pistol between [his] legs.”

Ryan Mudd, a firearms and tool mark examiner with the Department of Public 

Safety crime lab in Austin, Texas, testified that he examined the gun found in appellant’s 

truck, a .45 caliber cartridge case found at the murder scene and what was marked State’s 

Exhibit 61, which was “a plastic bag containing a fired bullet . . . .” Mudd testified that the

“cartridge [found at the murder scene] was fired in [appellant’s] firearm.” Mudd further 

determined that the bullet had been fired from appellant’s gun.
20

Vickie Willoughby, the Travis County Medical Examiner, testified that she 

performed an autopsy on Zikus’s body. During Willoughby’s testimony, the State offered 

State’s Exhibits 63 through 71, which are pictures of Zikus’s face and of his body where 

the bullet entered and where the bullet exited.

B. State’s Exhibits 45, 46, and 47

By his third issue, appellant argues that the trial court improperly admitted State’s 

Exhibits 45, 46, and 47 because “[t]he State had no compelling need for the exhibits to 

which [a]ppellant objected.” During the trial, appellant objected to State’s Exhibit 45 on 

the basis “that this particular photograph has no value to the jury, only to peak their 

emotions or inflame them. Just shows a drag mark when the cops removed [Zikus] from 

where he was to the outside. Object to that being inflammatory.” Although appellant 

generally cites authority that evidence must be relevant, appellant does not provide a

legal analysis explaining why State’s Exhibit 45 has no value to the jury or is inflammatory. 

See TEX. R. APP. P. 38.1(i). Likewise, although appellant objected to State’s Exhibits 46 

and 47 on the basis that they did not serve a “purpose other than to appeal to [the] jury’s 

emotions or inflame the jury” and have no “evidential value,” appellant does not provide 

legal analysis with citation to appropriate authority explaining how these exhibits were 

inadmissible. See id. Therefore, we conclude that this issue is inadequately briefed. See 

id.

Moreover, as to State’s Exhibits 46 and 47, appellant acknowledges that autopsy 

photos showing the entry wounds and Zikus’s face were admitted without objection. 

State’s Exhibit 63 is a picture of Zikus’s face and torso with his shirt lifted showing his 
21

chest. State’s Exhibit 64 is a picture of Zikus’s face. State’s Exhibit 66 is a picture of 

Zikus’s nude torso. State’s Exhibits 67 and 68 are close-up pictures of the entry wound 

on Zikus’s chest. Appellant does not challenge admission of these exhibits on appeal, 

and these images are cumulative of the objected-to exhibits. See Leday v. State, 983 

S.W.2d 713, 718 (Tex. Crim. App. 1998) (en banc) (“[O]verruling an objection to [the 

admission of] evidence will not result in reversal when other such evidence was received 

without objection, either before or after the complained-of ruling.”). Thus, admission of 

State’s Exhibits 47 and 48 does not constitute reversible error because the same 

evidence was properly admitted elsewhere. See id.

Additionally, appellant has not shown on appeal that even assuming error, the trial 

court’s admission of State’s Exhibits 45 through 47 caused the rendition of an improper 

verdict. See TEX. R. APP. P. 44.2(b); Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. 

App. 2013) (remanded the case to the court of appeals for a harm analysis after 

determining that the trial court violated Rule 403); Motilla v. State, 78 S.W.3d 352, 355 

(Tex. Crim. App. 2002) (explaining that non-constitutional error does not occur if the 

defendant’s substantial rights are not affected by the erroneous admission of evidence

and that substantial rights are not affected “if the appellate court, after examining the 

record as a whole, has fair assurance that the error did not influence the jury, or had but 

a slight effect.”).

5 We overrule appellant’s third issue.

5 Appellant does not state that his substantial rights were affected, and he does not explain with 

citation to pertinent authority how his substantial rights were affected after reviewing the record as a whole. 

See TEX. R. APP. P. 38.1(i).
22

C. State’s Exhibits 32 and 33

By what we construe as a first sub-issue to his third issue, appellant states in his 

brief that “each photograph [labeled State’s Exhibits 32 and 33 was] taken after the body 

[was] removed from its original location at the scene,” and implies by citing Taylor v. State, 

that the trial court improperly admitted those exhibits because “[o]rdinarily, admitting a 

photograph taken during a police officer’s investigation would be admissible if it is taken 

before the body is removed from the scene of the killing.” 491 S.W.2d 922, 923 (Tex.

Crim. App. 1973). However, in the trial court, appellant offered no objection to State’s 

Exhibits 32 and 33. Therefore, this issue is not preserved for our review. See TEX. R. APP.

P. 33.1(a). We overrule appellant’s first sub-issue to his third issue.6

D. State’s Exhibit 61

Finally, by a second sub-issue to his third issue, appellant contends that the trial 

court improperly admitted State’s Exhibit 61. Specifically, appellant argues that State’s 

Exhibit 61 was not material. The State responds that State’s Exhibit 61 was relevant to 

whether appellant shot and killed Zikus.

1. Pertinent Facts

State’s Exhibit 61 is a “spent bullet,” which the State “conditionally offer[ed]” during 

Officer Henderson’s testimony. Appellant first objected to the admission of State’s Exhibit 

61 on the basis that “[t]here’s no foundation laid for where that bullet was found, how it 

was recovered. Nothing.” The trial court overruled appellant’s objection.

6 Appellant also argues that the photographs were not relevant, or if relevant, the probative value 

was substantially outweighed by the “danger of one or more matters identified in Rule 103.” However, at 

trial, appellant did not object to State’s Exhibits 32 and 33 on the basis that they were not relevant or based 

on Rule 103. See TEX. R. APP. P. 33.1.
23

After Officer Henderson testified that he received State’s Exhibit 61 from Jarrell, 

the State offered it “conditionally,” and appellant “Renew[ed his] objections from earlier.” 

The trial court “conditionally accepted” but instructed, “It’s not been entered as an exhibit 

yet.”

Subsequently, the State asked Mudd to look at State’s Exhibit 61, and Mudd 

indicated that he recognized it. The State offered State’s Exhibit 61, and appellant 

generally objected that it was not relevant and said, “There’s nothing on the record here, 

there’s nothing before this jury that that bullet even came from this scene, had anything 

to do with this case.” Appellant stated, “We would object to relevance for this particular 

bullet that just appeared.” The trial court overruled appellant’s objections and admitted 

State’s Exhibit 61 “for all purposes.”

2. Applicable Law

Evidence is relevant if it makes the existence of a “fact more or less probable than 

it would be without the evidence” and if it is material. TEX. R. EVID. 401. For evidence to 

be considered relevant, it “must be both material—that is, it must be offered for a 

proposition that is of consequence to the determination of the case—and probative, such 

that it makes the existence of the fact more or less probable than it would otherwise be 

without the evidence.” Boudreaux v. State, 631 S.W.3d 319, 332 (Tex. App.—Houston 

[14th Dist.] 2020, pet. ref’d) (citing Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 

2016)).

During the punishment phase of trial, evidence of extraneous offenses is

admissible for any relevant purpose “but only if the State can offer proof that would allow 
24

a reasonable fact-finder to conclude, beyond a reasonable doubt, that the defendant 

could be held criminally responsible for that act.” Delgado v. State, 235 S.W.3d 244, 252 

(Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.07 (providing that 

at the punishment phase, “evidence may be offered by the state and the defendant as to 

any matter the court deems relevant to sentencing, including but not limited to the prior 

criminal record of the defendant, his general reputation, his character, an opinion 

regarding his character, the circumstances of the offense for which he is being tried, and, 

notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an 

extraneous crime or bad act . . . regardless of whether he has previously been charged 

with or finally convicted of the crime or act”).

3. Analysis

Appellant specifically argues on appeal that State’s Exhibit 61 is not material and 

therefore not relevant. At trial, appellant objected to admission of State’s Exhibit 61 on 

the basis that it lacked a foundation and that it was not relevant.

As previously set out, evidence of extraneous offenses is admissible during the 

punishment phase of trial for any relevant purpose. Delgado, 235 S.W.3d at 252; see also

TEX. CODE CRIM. PROC. ANN. art. 37.07. The State offered State’s Exhibit 61, the spent 

bullet, to prove that appellant committed the extraneous offense of murder by shooting

Zikus. Thus, State’s Exhibit 61 was offered for a proposition that is of consequence to the 

determination of the case, and it was therefore material. See Boudreaux, 631 S.W.3d at

332. Thus, the trial court did not abuse its discretion by admitting it. See Rhomer v. State, 

569 S.W.3d 664, 669 (Tex. Crim. App. 2019) (setting out that we review the trial court’s 
25

decision to admit evidence for an abuse of discretion).

Nonetheless, even if it were error, appellant was not harmed by the admission of 

the spent shell casing because there was other evidence linking appellant to Zikus’s 

murder. See Wishert v. State, 654 S.W.3d 317, 332 (Tex. App.—Eastland 2022, pet. ref’d)

(citing TEX. R. APP. P. 44.2(b) (“The trial court’s erroneous admission of evidence does 

not result in constitutional error; therefore, it will be disregarded if the error did not affect 

the defendant’s substantial rights.”)). The trial court admitted the recording of the 911 call 

wherein Jarrell told the dispatcher that appellant had shot Zikus. In addition, the trial court 

admitted body camera footage wherein Jarrell reported to Officer Watkins that appellant 

shot Zikus with his gun, which the evidence showed was a .45 Kimber. Given that the trial 

court admitted other evidence that appellant murdered Zikus, we cannot conclude that 

State’s Exhibit 61 influenced the jury’s determination of punishment. See id. (“A 

substantial right is implicated when the trial court’s error had a substantial or injurious 

effect or influence in determining the jury’s verdict,” and we must only reverse if after 

reviewing the whole record, we do not have a fair assurance that the error did not affect 

the jury’s verdict). We overrule appellant’s second sub-issue to his third issue.

IV. MOTIONS FOR MISTRIAL

By his fourth issue, appellant contends that the trial court abused its discretion by 

denying his motion for a mistrial because during voir dire, a juror failed to disclose that 

she was related to a person who is a law enforcement officer. By his fifth issue, appellant 

contends that the trial court abused its discretion when it denied his motion for mistrial on 

the basis that the “jury heard prejudicial extraneous offense statements contained in 
26

State’s Exhibit 5A.”

A. Applicable Law

The trial court may grant a mistrial in “‘extreme circumstances’ for a narrow class 

of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. 

App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). The 

trial court should grant a mistrial “‘only when residual prejudice remains’ after less drastic 

alternatives are explored.” Id. at 884–85 (quoting Barnett v. State, 161 S.W.3d 128, 134 

(Tex. Crim. App. 2005)). “Less drastic alternatives include instructing the jury ‘to consider 

as evidence only the testimony and exhibits admitted through witnesses on the stand,’ 

and, questioning the jury ‘about the extent of any prejudice, if the instructions alone do 

not sufficiently cure the problem.’” See id. at 885 (quoting Arizona v. Washington, 434 

U.S. 497, 522 (1978)). We review the denial of a motion for mistrial for an abuse of 

discretion. Id. at 884.

B. Dismissed Juror

1. Applicable Law

A defendant is entitled to a trial before an impartial jury. U.S. CONST. amend. VI; 

Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004). The parties are denied 

an opportunity to exercise peremptory challenges and challenges for cause when jurors 

fail to disclose material information during the voir dire process. Franklin, 138 S.W.3d at

354 (citing Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978)). The failure to 

disclose material information during voir dire hampers the parties’ selection of a 

disinterested and impartial jury. Id.
27

Any information that has “any potential for prejudice or bias” constitutes material 

information. Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim. App. 1983); see also TEX.

CODE CRIM. PROC. ANN. art. 35.16(a)(9) (authorizing challenge for cause for jurors with 

bias or prejudice in favor of or against the defendant). We determine whether withheld 

information is material by analyzing if the information “would likely reveal the juror 

harbored a bias or prejudice to such a degree that the juror should have been excused 

from jury service.” Sypert v. State, 196 S.W.3d 896, 900 (Tex. App.—Texarkana 2006, 

pet. ref’d). “[I]f a situation arises where material information was withheld by a juror during 

voir dire, and if the appellant’s subsequent motion for mistrial is denied, on appeal the 

denial of that motion will be reviewed for constitutional error.” Id.

2. Pertinent Facts

After Officer Tran testified, the trial court notified appellant that one of the jurors 

had not disclosed that her uncle was a member of the College Station Police Department. 

The juror informed the bailiff that her uncle’s status as law enforcement officer would not 

affect her ability to serve as a juror.

Nonetheless, appellant’s trial counsel said, “[I[f we had been aware of that 

yesterday, [she] might have been somebody we would [have wanted to] strike . . . for 

obvious reasons.” The trial court asked if appellant’s trial counsel wanted to question the 

juror, and he replied that he did not think that talking further with the juror would be helpful. 

Appellant’s trial counsel said, “I think we could have used a strike on her if we had known

that information[,] and we did not know it so we were unable to do that. In fact, I can 

almost guarantee if I knew that” the juror was related to this specific officer, “I would have 
28

struck her for the same reasons that I would have struck some of the other members of 

the jury panel for that same reason.” The State replied that other members of the jury also 

had family members who were in law enforcement. Appellant insisted that he would have 

first stricken the complained-of juror had he known she was related to a law enforcement 

officer, and he requested a mistrial.

The trial court replied that the alternate juror could replace the complained-of juror. 

The State agreed with the trial court’s recommendation. The trial court asked appellant if 

he objected to the remedy. Appellant said, “I don’t have an objection to it, but I do move 

for a mistrial.” The trial court denied the request and replaced the complained-of juror with 

the alternate juror.

3. Analysis

In Decker, the Texas Court of Criminal Appeals held that mere familiarity with a 

witness is not necessarily material information. 717 S.W.2d at 907. The juror in Decker

recognized the complaining witness when the witness was called to testify and informed 

the trial court that he knew the witness. Id. The Decker court stated that there was no 

evidence that the juror intentionally gave false information to the attorneys during voir 

dire. Id. The Decker court further explained that the fact that the juror merely knew the 

complaining witness as an acquaintance was not material as “[t]here was no evidence 

that the two men” had ever “socialized together or had any type of friendship.” Id. Thus, 

there was no evidence that the juror’s relationship with the witness had any potential for 

prejudice or bias. Id.
29

Likewise, here, there is no evidence that the complained-of juror intentionally failed 

to disclose that her uncle worked as a law enforcement officer. In addition, the juror’s 

prejudice or bias must “touch[] on some fundamental component of the charged crime or 

personal characteristic of the accused.” Sypert, 196 S.W.3d at 901. Here, there is nothing 

in the record showing that the complained-of juror harbored any prejudice or bias on some 

fundamental component of the charged crime or against appellant merely because her 

uncle was a law enforcement officer. See id. Therefore, we cannot conclude that 

information that the complained-of juror’s uncle was a law enforcement officer was 

material. See id. (providing an example as follows: “if the defendant is charged with an 

intoxication offense, it is material information that the prospective juror has a prejudice 

against persons who use alcohol”). Accordingly, because there is no showing that 

appellant was deprived of an impartial jury or denied a fair trial in any way because of the 

trial court’s refusal to grant a mistrial on the basis that the complained-of juror failed to 

disclose during voir dire that she was related to a law enforcement officer, we find that 

the trial court did not abuse its discretion. See Decker, 717 S.W.2d at 907; see also 

Allbright v. Smith, 5 S.W.2d 970, 971 (Tex. Comm. App. 1928) (“The mere fact that a juror 

knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with, 

one of the parties to a suit, is not sufficient basis for disqualification, or ordinarily even 

ground for challenge for cause.”).

Moreover, the complained-of juror did not serve on the jury to determine 

appellant’s guilt or punishment, and appellant has not provided any authority, and we find 

none, which requires for a trial court to grant a mistrial in this scenario, especially when 
30

appellant did not object to the trial court’s replacement of the complained-of juror with an 

alternate juror. See TEX. R. APP. P. 38.1(i). Therefore, we cannot conclude that appellant 

was entitled to a mistrial, and we conclude that the trial court cured error, if any, by 

replacing the complained-of juror with the alternate juror. See Sypert, 196 S.W.3d at 900 

(explaining that if we are convinced beyond a reasonable doubt that the juror’s failure to 

disclose “material information did not contribute to the defendant’s conviction or 

punishment,” we are not required to reverse). We overrule appellant’s fourth issue.

C. State’s Exhibit 5A

By his fifth issue, appellant argues that he was entitled to a mistrial because when 

the State published State’s Exhibit 5A, the jury heard a statement from radio traffic 

excerpt: “I have one that’s unconscious. One that’s unresponsive” which appellant argued 

“refers to the murder.” Appellant bases his argument on a claim that this evidence 

constituted “prejudicial extraneous offense statements.”

There is nothing in the record connecting appellant to a murder or to an injured 

individual during the guilt/innocence portion of the trial. See McKay, 707 S.W.2d at 32.

Therefore, this evidence does not constitute extraneous offense evidence. See id. Thus,

the trial court did not abuse its discretion by not granting a mistrial on this basis. We 

overrule appellant’s fifth issue.

V. CUMULATIVE ERROR

By his sixth and final issue, appellant contends that he was denied a fair trial due 

to cumulative error. However, we have overruled all of appellant’s issues. Therefore, his 

cumulative-error complaint lacks merit because there is no error to cumulate. See Jenkins 
31

v. State, 493 S.W.3d 583, 613 & n.82 (Tex. Crim. App. 2016) (“Though it is possible for a

number of errors to cumulatively rise to the point where they become harmful, we have 

never found that ‘non-errors may in their cumulative effect cause error.’” (footnotes 

omitted) (citing Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009))). 

Accordingly, we overrule sixth issue.

VI. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b). 

Delivered and filed on the

26th day of October, 2023.