NUMBER 13-18-00347-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

STANLEY POLK, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 264th District Court

of Bell County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

Appellant Stanley Polk appeals his Bell County 1 conviction for the murder of 

Ronald Ruiz, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02. By two issues, 

Polk argues he suffered egregious harm from the trial court’s failure to include an 

 

1 This cause is before the Court on transfer from the Third Court of Appeals in Austin pursuant to 

an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. Because this is a 

transfer case, we apply precedent of the Third Court of Appeals to the extent it differs from our own. See

TEX. R. APP. P. 41.3.
2

instruction on the presumption of reasonableness in the self-defense jury instruction and 

from the trial court’s instruction on provocation that limited his right to self-defense. We 

affirm.

I. BACKGROUND

Polk and Ruiz were employed by Werner Enterprises as truck drivers. Polk was 

an experienced driver but was a new hire. Werner’s policy required newly hired 

experienced drivers to spend time with a trainer before being assigned a truck for solo 

trips. Ruiz was Polk’s trainer. The two departed California and were on the road 

together for about a week, living in the cab of the truck. When they stopped to rest, they 

both slept in the truck, which had double bunks. Sometimes they stopped at truck stops 

or loading yards, but more often they stopped at rest stops where there were fewer 

people, which, according to Polk, Ruiz preferred. According to Polk’s testimony at trial, 

Ruiz was depressed and grieving for his wife who died some years before.

Polk testified that on the days before August 27, 2015, Ruiz became more and 

more despondent and became angry for no apparent reason. As an example, Polk 

described a time when Ruiz was using his computer and Ruiz suddenly threw the 

computer against the cab wall of the truck, breaking it. 

During the week the men were together, Polk called Werner’s offices several times 

complaining that he did not need training. Ruiz did not call often, but in his second 

conversation with Werner fleet personnel, Ruiz asked to be relieved of Polk. Ruiz and 

his supervisor decided Polk could be left at the Werner terminal in Dallas. The men were 

traveling north on Interstate 35, north of Austin, when they pulled into the rest stop in 
3

Salado and changed drivers. According to Polk’s testimony at trial, Ruiz, who was in the 

driver’s seat, allegedly became very angry with Polk, pulled his knife, and told Polk to “get 

his black ass off his truck” and that Polk was worse than “the last nigga I had on my truck.” 

Polk testified that he was scared, grabbed Ruiz’s left hand, pulled his own knife out to 

defend himself, and “stabbed at” Ruiz. Ruiz got the driver’s door open and left the cab. 

According to Polk, Ruiz walked away and received medical help from other truckers 

parked at the rest stop. Polk walked to the men’s restroom and washed his hands and 

knife. He spoke to another man, Jose Gutierrez, in the men’s room and then heard 

sirens. He was still scared. He hopped over the rear fence at the rest stop and started 

walking. He was stopped ten hours later and arrested by a State trooper. He gave a 

statement to the trooper claiming self-defense.

At trial, the State presented multiple witnesses from the rest stop who described 

Ruiz’s emergency medical treatment at the scene. Several truckers and emergency 

medical personnel tried to save him, but he was pronounced dead shortly after he arrived 

at the hospital by air ambulance. Ruiz died of the stab wounds he received.

The medical examiner, Candace Shoppe, M.D., testified that Ruiz had seventeen 

sharp force injuries (twelve stab wounds and five incised wounds). Ruiz had multiple 

stab wounds to his chest: one that penetrated two and a half inches, another two-incheslong that penetrated his right lung, a five-inch-deep wound that penetrated into his right 

chest; and a seven-inch-deep chest wound that penetrated the upper lobe of his right lung 

and right pericardial sac. He also had a stab wound to his abdomen, a seven-inch-deep 

wound that penetrated the left omentum and the transverse colon. In addition, Ruiz 
4

sustained multiple wounds to his left arm that incised a one and a half inch segment of 

the radial artery. Ruiz’s left hand had cuts to his second and third fingers on the palmar 

surface. Two of Ruiz’s wounds were under his left armpit on the chest. Ruiz’s 

toxicology screen was clean. Dr. Shoppe testified that Ruiz died from multiple stab 

wounds. Dr. Shoppe also testified that some of the wounds and the petechiae in Ruiz’s 

eyes that she observed most likely occurred only if Polk was stabbing Ruiz “from behind 

or close to the side, right side.” The cut to Ruiz’s radial artery was large enough that 

“[w]ithout immediate compression or a tourniquet you would bleed to death from that 

within less than ten minutes.” 

Nicole Reeves, a trucker who was parked next to Ruiz’s truck, testified that she 

came out of the rest room at the Salado rest stop and was headed to her truck when she 

heard a man screaming for help. She saw him trying to get out of the driver’s side of his 

truck, but someone was “holding him in there and attacking him.” Reeves testified she

saw a black man “swinging around” with his right hand across Ruiz’s chest. Eventually 

Ruiz freed himself, got out of the truck, and walked towards Reeves. There were two 

men leaving the restrooms walking towards the parked trucks behind Reeves, but Ruiz 

got to Reeves first. Ruiz was having a hard time breathing and was grabbing his chest 

and arm. She observed cuts all over him. Ruiz’s hands were up while he walked 

towards her and she saw nothing in his hands. Reeves called 911. While she called 

911, the other truckers were putting pressure on Ruiz’s wounds trying to stop the 

bleeding. Ruiz told Reeves that his student Stanley Polk attacked him. She saw Polk 

“exit the truck, walk in front of [it], and my truck like he was coming towards us and then I 
5

guess he saw the other two drivers coming to help us and he turned around and ran off.” 

Reeves saw a knife sheath on Ruiz’s belt, but did not see an open knife. Jose Santos,

who was parked nearby, had a dash cam that took video of portions of the events that 

night. Both Ruiz and Polk appear on the video that was played for the jury.

Derek Leif with Werner Enterprises testified that he spoke to Ruiz over their radio 

system on August 26 and 27, 2015, and could tell that Ruiz and Polk were not getting 

along. Ruiz told Leif on the first call that Polk was not listening to him, but Ruiz would try 

to keep working with him and would keep Leif updated. Leif spoke to Ruiz the second 

time at about 5 p.m. on August 27, 2015. Ruiz was stopped; and could not drive again 

until after midnight to remain in compliance with trucking regulations. In that 

conversation, Ruiz told Leif that he and Polk would not be able to continue to work with 

each other. They had to decide how to get Polk off the truck. Their conclusion was for 

Ruiz to take Polk to one of the Werner terminals in Dallas. According to Leif, Ruiz 

sounded frustrated. During the conversation with Leif, Ruiz was being interrupted by 

someone in the background and the two were arguing. Leif could not hear the substance 

of the conversation. The plan Leif and Ruiz developed would have resulted in Polk 

spending the night in Dallas and then a new trainer would be found for him. Polk would 

not have lost his job. According to Leif, trainers and students do not always get along 

and the company accommodates them by getting them a new trainer.

Polk and Stephen Thorne were defense witnesses. Thorne holds a doctorate in 

psychology and testified about the effect of adrenaline on a person who becomes scared 

for their life. 
6

Polk testified that he lived in Las Vegas, and worked out of Werners Fontana, 

California yard. He testified about his family including his seven children, multiple 

grandchildren, his certificates in Christian ministry, and his religious beliefs. He believed 

that Werner’s would be assigning him his own truck as soon as he got back to California 

to take his testing and that he was nearly finished with training. Polk did not want to go 

to Dallas; he “wanted a truck.” 

During the charge conference, the defense requested an instruction on voluntary 

manslaughter that the trial court declined to give. There were no other objections to the 

jury charge nor request for other or different instructions.2 

The jury found Polk guilty of murder. During punishment, the jury was instructed 

on “sudden passion arising from an adequate cause,” which if found by the jury would 

have reduced the offense to a second-degree felony. See TEX. PENAL CODE ANN. § 

19.02(d). The jury declined to find sudden passion and sentenced Polk to fifty years’

imprisonment. Polk appealed.

II. CHARGE ERROR

By two issues, Polk argues that jury charge error caused him egregious harm. 

First, he claims that the jury should have been instructed on the presumption of 

reasonableness with respect to his claim of self-defense. See TEX. PENAL CODE ANN. § 

9.32. Second, Polk argues that the trial court should not have included an instruction on 

provocation because it limited his claim of self-defense. At trial, Polk did not object to 

 

2 The night before, the parties discussed the charge briefly with the trial judge. The State 

represented that self-defense was in the charge, and the defense and the State agreed they would get 

together and work on the charge. 
7

the jury instructions on either ground.

A. Standard of Review

A trial court has a duty to prepare a jury charge that accurately sets out the law 

applicable to the specific offense charged. See TEX. CODE CRIM. PROC. ANN. art. 36.14; 

Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011); Oursbourne v. State, 259 S.W.3d 

159, 179 (Tex. Crim. App. 2008). However, that requirement does not include a sua 

sponte duty to prepare a jury charge that includes all defensive issues, unless a rule or 

statute “requires an instruction under the particular circumstances,” in which case, it 

becomes the “law applicable to the case.” Oursbourne, 259 S.W.3d at 179, 180 

(emphasis in original). “The Penal Code requires that a presumption that favors the

defendant be submitted to the jury if there is sufficient evidence of the facts that give rise 

to the presumption . . . unless the court is satisfied that the evidence as a whole clearly 

precludes a finding beyond a reasonable doubt of the presumed fact.” TEX. PENAL CODE 

ANN. § 2.05(b)(1); Villarreal v. State, 453 S.W.3d 429, 431 (Tex. Crim. App. 2015); see 

also Preston v. State, No. 03-16-00573-CR, 2018 WL 3447713, at *7 (Tex. App.—Austin 

July 18, 2018, no pet.) (mem. op., not designated for publication). In addition, “[a]

defendant is entitled, upon a timely request, to an instruction on any defensive theory 

raised by the evidence.” Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003); 

Brown v. State, 955 S.W.2d 276, 279–80 (Tex. Crim. App. 1997). 

A trial court has broad discretion in submitting instructions and definitions to the 

jury. See Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2001, 

pet. ref’d). A trial court abuses its discretion when it acts without reference to guiding 
8

principles or rules and outside the wide zone of reasonable disagreement. See Casey 

v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Lyles v. State, 850 S.W.2d 497, 

502 (Tex. Crim. App. 1993). 

When a defendant does not object to alleged jury charge error, as here, we may 

reverse only if the error was fundamental, or stated another way, “it was so egregious 

and created such harm that the defendant was deprived of a fair and impartial trial.” 

Villarreal, 453 S.W.3d 433. “Charge error is egregiously harmful if it affects the very 

basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive 

theory.” Id. Egregious harm is a “high and difficult standard to meet.” Id. To 

determine whether charge error has resulted in egregious harm to a defendant, “we 

consider (1) the entirety of the jury charge, (2) the state of the evidence, including the 

contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) 

any other relevant information revealed by the trial record as a whole.” Id.; Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

B. Applicable Law

Texas law includes a justification defense and codifies a presumption that deadly 

force is reasonable if used to protect oneself from the attack of another or in other 

specified circumstances not present here:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the 

other under Section 9.31;3 and

 

3

“(a) Except as provided in Subsection (b), a person is justified in using force against another when 

and to the degree the actor reasonably believes the force is immediately necessary to protect the actor 

against the other’s use or attempted use of unlawful force. . . . “ TEX. PENAL CODE ANN. § 9.31(a).
9

(2) when and to the degree the actor reasonably believes the 

deadly force is immediately necessary:

(A) to protect the actor against the other’s use 

or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission

of aggravated kidnapping, murder, sexual 

assault, aggravated sexual assault, robbery, or 

aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly 

force was immediately necessary as described by that 

subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the 

person against whom the deadly force was 

used:

(A) unlawfully and with force 

entered, or was attempting to 

enter unlawfully and with force, 

the actor’s occupied habitation, 

vehicle, or place of business or 

employment;

(B) unlawfully and with force 

removed, or was attempting to 

remove unlawfully and with force, 

the actor from the actor’s 

habitation, vehicle, or place of 

business or employment; or

(C) was committing or attempting 

to commit an offense described by 

Subsection (a)(2)(B);

(2) did not provoke the person against whom the 

force was used; and

(3) was not otherwise engaged in criminal 

activity, other than a Class C misdemeanor that 

is a violation of a law or ordinance regulating 

traffic at the time the force was used.
10

(c) A person who has a right to be present at the location 

where the deadly force is used, who has not provoked the 

person against whom the deadly force is used, and who is not 

engaged in criminal activity at the time the deadly force is 

used is not required to retreat before using deadly force as 

described by this section.

(d) For purposes of Subsection (a)(2), in determining whether 

an actor described by Subsection (c) reasonably believed that 

the use of deadly force was necessary, a finder of fact may 

not consider whether the actor failed to retreat. 

TEX. PENAL CODE ANN. § 9.32 (emphasis added).

C. Omission of Presumption of Reasonableness

Polk complains for the first time on appeal that the jury instructions did not include 

an instruction on the presumption that his use of deadly force was reasonable pursuant 

to § 9.32(b). Id. Although the jury instructions did not include the presumption, the 

instructions included the following: “A person is justified in using deadly force against 

another . . . when he reasonably believes that such force is immediately necessary to 

protect himself against the other person’s use or attempted use of unlawful deadly force.” 

A “[r]easonable belief” is that which “would be held by an ordinary and prudent man in the 

same circumstances as the actor.” Id. § 1.07(a)(42).

The jury rejected Polk’s claim of self-defense. Polk argues that because the jury 

was not advised of the presumption that he acted reasonably, the jury was likely misled,

which caused him egregious harm.

First we must determine whether Polk was entitled to the instruction, i.e. whether 

there was evidence to support the instruction on the presumption. See Morales v. State, 

357 S.W.3d 1, 7 (Tex. Crim. App. 2011); Starks v. State, 127 S.W.3d 127, 132 (Tex. 
11

App.—Houston [1st Dist.] 2003, pet. ref’d). According to Polk, Ruiz took out his knife 

and, using racial slurs, told Polk to get out of the truck. Polk further testified that Ruiz 

popped his knife out, and “just lashed right off and came at me.” Polk argues that Ruiz’s 

conduct supports the presumption based upon Polk’s asserted reasonable belief that Ruiz 

would murder him. See TEX. PENAL CODE ANN. § 9.32(b) We agree that the evidence 

supports an instruction on the presumption of reasonableness of Polk’s conduct and that 

failure to do so was error. 

Because Polk did not object to the omission of the instruction, we review for 

egregious harm. See Almanza, 686 S.W.2d at 171. In weighing the factors to 

determine whether there was egregious harm, the first factor is the entirety of the jury 

charge. Id. The jury was instructed on self-defense, just not on the presumption. The 

application paragraph properly instructed the jury that if they had reasonable doubt about 

whether Polk acted in self-defense they must acquit him. Thus, the jury was properly 

instructed on the justification portion of his self-defense claim, which they rejected. If the 

omitted instruction had been properly given, “a complete instruction on the presumption 

of reasonableness would have also informed the jury that, under some circumstances, an 

actor is not entitled to the benefit of the presumption.” See TEX. PENAL CODE ANN. § 

9.32(b); Villarreal, 453 S.W.3d at 435. The omitted instruction would have permitted the 

jury to disregard the presumption if it concluded, among other things, that Polk had no 

reason to believe that Ruiz was attempting to commit murder. As a result, this factor 

weighs against a finding of egregious harm. See Villarreal, 453 S.W.3d at 435.
12

The second factor includes the weight of the probative evidence. Almanza, 686 

S.W.2d at 171. Only Polk’s testimony supported his claim of self-defense, but his 

testimony was contradicted by substantial physical evidence and witnesses with no stake 

in the outcome. Reeves saw Ruiz trying to get away from Polk, saw Polk’s arm around 

Ruiz’s neck or chest, and saw that Ruiz had nothing in his hands when he left the cab of 

the truck. Leif heard Polk and Ruiz having a heated argument. Ruiz’s knife was found 

closed in his pocket with no blood on the blade and only Ruiz’s blood on the outside of 

the knife, which was consistent with the blood soaking through his pocket, according to 

the forensic technician. Photographs of the Werner truck cab showed that all of the 

blood was on the driver’s side of the cab. Polk had only a scratch on his wrist, and none 

of Polk’s blood was on Ruiz’s knife. Ruiz sustained seventeen knife wounds including 

two on the front of his neck and two on the back of his neck, shown in the photographs. 

The medical examiner testified that the direction of the wounds suggested that Ruiz’s 

wounds were inflicted by someone behind or on his right side. Furthermore, Jose 

Gutierrez who spoke to Polk in the restroom in Salado described Polk as calm, which 

contradicted Polk’s testimony that he was scared for his life. The evidence on this factor 

weighs heavily against egregious harm. See Villarreal, 453 S.W.3d at 439 (concluding 

that substantial evidence contradicting defendant’s claim of self-defense weighed against 

egregious harm).

The third factor we consider to determine egregious harm is argument of counsel. 

Id. Defense counsel argued that Polk had a reasonable belief he was under attack by 

Ruiz and brought an expert to explain how people react to fear, stress, and adrenaline.
13

Counsel also argued that the conduct of the dispatcher and the emergency personnel 

contributed to Ruiz’s death by discouraging on-scene helpers and from using a tourniquet 

to stop the bleeding in his left arm. Although that argument is not a legal defense that 

could result in acquittal under the jury charge, counsel may have thought it would sway 

the jury.

The State argued that all of the evidence, other than Polk’s testimony, contradicted 

Polk’s claim of justification and self-defense. The State further argued that Polk did not 

stay at the scene to tell anyone that he acted in self-defense, but instead had ten hours 

to decide what to say. The jury rejected Polk’s justification defense, and we do not find 

that the error in failing to give Polk the instruction on the presumption of reasonableness 

egregiously harmed him. See Villarreal, 453 S.W.3d at 435.

In Villarreal, the San Antonio court of appeals reversed a murder conviction after 

holding that failure to give an instruction on the presumption of reasonableness caused 

egregious harm. 453 S.W.3d at 432. The court of criminal appeals reversed, holding 

in part that the defendant’s claim of self-defense was contradicted by the record such that 

the lack of instruction did not result in egregious harm. Id. at 441, 443.

Thus, although self-defense was Polk’s only defense, the only evidence supporting 

that defense was his own testimony and it was contradicted by all of the other evidence 

in the record. As a result, we do not find that Polk sustained egregious harm as a result 

of the omission of an instruction on the presumption of reasonableness of his use of force. 

See id. Accordingly, we overrule Polk’s first issue.
14

C. Inclusion of Provocation Instruction

By his second issue, Polk argues that he suffered egregious harm from the 

inclusion of what he claims was “an unwarranted instruction” on provocation because it

“limited or barred” his claim of self-defense. A charge on provocation is required when 

there is sufficient evidence (1) that the defendant did some act or used some words which 

provoked the attack on him, (2) that such act or words were reasonably calculated to 

provoke the attack, and (3) that the act was done or the words were used for the purpose 

and with the intent that the defendant would have a pretext for inflicting harm upon the 

other. Elizondo v. State, 487 S.W.3d 185, 197 (Tex. Crim. App. 2016); Smith v. State, 

965 S.W.2d 509, 513 (Tex. Crim. App. 1998); TEX. PENAL CODE ANN. § 9.31(b)(4). A 

provocation instruction should be submitted to the jury only “when there is evidence from 

which a rational jury could find every element of provocation beyond a reasonable doubt.” 

Smith, 965 S.W.2d at 514. “[T]he jury must merely be able to find that there was some 

provoking act or words. This protects the defendant’s right of self-defense, while adhering 

to the principle of the law of provocation.” Id. at 515. Circumstantial evidence can 

support this finding. Id.

The jury instruction on provocation here immediately followed the instruction on 

self-defense and stated: 

Except, the use of force against another is not justified:

In response to verbal provocation alone,

If the actor provoked the other’s use or attempted use of 

unlawful force, unless the actor abandons the encounter, or 

clearly communicates to the other his intent to do so 

reasonably believing he cannot safely abandon the 
15

encounter; and the other nevertheless continues or attempts 

to use unlawful force against the actor.

See TEX. PENAL CODE ANN. § 9.31(b)(4).

The instruction on provocation is followed by an instruction on justification without 

provocation. The application paragraph does not include provocation, only self-defense, 

and the prosecutor’s closing argument did not reference provocation, but argued that 

Polk’s claim of self-defense was not supported by any evidence other than Polk’s 

testimony and was directly contradicted by all of the other evidence.

The trial evidence established that Polk was arguing with Ruiz while Ruiz was 

speaking with his supervisor about getting Polk off his truck. Ruiz and the supervisor 

concluded that Ruiz could drop Polk off at the Werner hub in Dallas. Polk did not testify 

to anything that could be considered provocation. After the call with Ruiz’s supervisor 

ended, Ruiz allegedly used racial slurs against Polk and allegedly drew his knife, although 

there was no physical or independent evidence that Ruiz’s knife was in his hand during 

the stabbing. 

We agree with Polk that the trial evidence does not support the instruction and it 

should not have been submitted. Cf. Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 

1998) (setting out facts that support provocation instruction). Because Polk did not 

object, we review for egregious harm. See Almanza, 686 S.W.2d at 171.

Polk cites Elizondo, Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013), 

Tave v. State, 620 S.W.2d 604 (Tex. Crim. App. 1981), and McCandless v. State, 57 S.W. 

672 (1900), in support of his claim that the instruction on provocation caused egregious 

harm. However, Elizondo, and Reeves are cases in which defendants objected to the 
16

jury charge. 487 S.W.3d at 209; 420 S.W.3d at 816. Both Tave and McCandless

predate Almanza and its harm analysis.4 620 S.W.2d at 606; 57 S.W. at 675.

In Elizondo, the court of criminal appeals concluded that the objected-to instruction

was not supported by evidence and caused some harm because the instruction on 

provocation was incorrect, “misleading, and confusing.” 487 S.W.3d at 208. 

In Reeves, 420 S.W.3d at 816, the State conceded that the objected-to provocation 

instruction was error. Id. The court of criminal appeals reversed because the entirety 

of the charge was confusing, the provocation instruction was incorrect, the State’s closing 

argument misstated the law and may have unduly influenced the jury. Id. at 821. As a 

result, the court found some harm. Id.

The record here does not show that the State relied on provocation. No one 

mentioned provocation during closing. Moreover, provocation was not included in the 

application paragraph and as such, it did not limit Polk’s right of self-defense. See 

Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (describing application 

paragraph which specifies the factual circumstances under which the defendant may be 

convicted or acquitted as the “heart and soul” of the jury charge); see also Shivers v. 

State, No. 07-03-0521-CR, 2005 WL 991304, at *3 (Tex. App.—Amarillo Nov. 15, 2006, 

pet. ref’d) (mem. op., not designated for publication) (holding no egregious harm from 

provocation instruction where neither side argued provocation during guilt/innocence 

phase of trial); Obennoskey v. State, No. 05-95-00993-CR, 1998 WL 23704, at *7 (Tex. 

App.—Dallas Jan 21, 1998, pet. ref’d) (mem. op., not designated for publication) (holding 

 

4 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
17

error not egregiously harmful where State did not rely on provocation and application 

paragraph did not include provocation)..

We agree with Polk that the instruction was error, but do not find egregious harm. 

The issue was not addressed, much less emphasized during closing by either party. We 

overrule Polk’s second issue.

III. CONCLUSION

We affirm the judgment of the trial court.

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

8th day of August, 2019.