NUMBER 13-20-00085-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

JOHN PAUL BROOKS JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 249th District Court 

of Somervell County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant John Paul Brooks Jr. appeals his convictions for possession of a 

controlled substance of more than one gram but less than four grams and possession of 

a controlled substance of less than one gram, first- and second-degree felonies,
2

respectively.1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c); TEX. PENAL CODE ANN.

§ 12.42(d). By what we construe as five issues, Brooks argues the trial court (1) abused 

its discretion by denying his motion for a mistrial; (2) abused its discretion by denying his 

motion for continuance; (3) erred by denying his motion to suppress evidence; (4) erred

by prohibiting Brooks from presenting evidence to the jury; and (5) erred by denying an

article 38.23(a) instruction in the jury charge. See TEX. CODE CRIM. PROC. art. 38.23(a).

We affirm.

2 

I. BACKGROUND

On December 12, 2018, Brooks was indicted for two counts of aggravated assault 

with a deadly weapon (counts one and two), possession of a controlled substance of more 

than one gram but less than four grams of methamphetamine (count three), and 

possession of a controlled substance of less than one gram (count four).3 TEX. PENAL 

CODE ANN. § 22.02(a)(2); TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c). Prior to trial, 

Brooks filed a motion to suppress, which the trial court denied. When trial was set to 

begin, Brooks filed a motion for continuance alleging he was unable to secure the 

presence of two witnesses, which he deemed necessary. The trial court denied Brooks’s

motion for continuance. After the jury was empaneled and sworn, but prior to opening 

statements or evidence, the trial court was notified that a juror communicated with another 

1 The jury also found two enhancement paragraphs to be true.

2 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a 

docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

3 Prior to trial, the State abandoned counts one and two and renumbered the possession charges 

as one and two, respectively.
3

individual about the case. Brooks moved for a mistrial, citing juror misconduct. The trial 

court conducted a hearing on the allegations and subsequently denied Brooks’s motion 

for mistrial. 

A. Search Warrants

On October 19, 2018, Somervell County Sheriff's Office (SCSO) Captain Michael 

Gilbert signed a probable cause affidavit for a search warrant. According to the affidavit, 

Julie Dowdy presented herself to the Glen Rose Medical Center emergency room after 

being physically assaulted by Brooks. Dowdy told SCSO deputies Josh Beatty and John 

Gonzales that after an argument in Brooks’s van, Brooks shot her in the face with a CO2-

powered BB gun and threatened to cut her throat with a green camouflage-patterned

folding knife. Beatty observed Dowdy to have a hole in her cheek, visible swelling on the 

right side of her face, and blood on her clothing and hospital bed sheets; Beatty also 

observed photographs on Dowdy’s phone of herself covered in blood.4 The affidavit 

sought a warrant to search Brooks’s home and van for the BB gun, folding knife, and to 

locate Dowdy’s blood stains in Brooks’s van or on his wheelchair. The same day, a judge 

signed the search warrant, permitting SCSO to search Brooks’s home and vehicle for the 

items listed. 

Gilbert testified that on October 19, 2018, he and several other officers executed 

the search warrant at Brooks’s residence. According to Gilbert, SCSO evidence clerk Katy 

Linnaberry and Texas Ranger Don Stoner searched Brooks’s vehicle, while Gilbert, 

4 Beatty’s observations were set out in writing in Defendant’s Exhibit 1-A, the second page of

Gilbert’s affidavit. Exhibit 1-A was originally missing from Defendant’s Exhibit 1, the affidavit for a search 

warrant. 
4

SCSO Investigator Thomas Cochran, and SCSO Chief Deputy Dwayne Griffin searched

Brooks’s residence. During the search, a CO2-powered BB gun and green camouflagepatterned folding knife were recovered; additionally, Stoner found what appeared to be 

two blood stains in Brooks’s vehicle. SCSO investigators found glass pipes and a 

crystalline substance later determined to be approximately 1.61 grams of 

methamphetamine inside Brooks’s home. Griffin found several items used to consume 

narcotics in Brooks’s nightstand while the methamphetamine was found inside a case in 

Brooks’s chest of drawers at the foot of his bed. Another glass pipe was discovered by 

Cochran in the entertainment center in Brooks’s living room.

Following the October 19 search, Gilbert obtained an arrest warrant for Brooks 

which was executed at his home on November 5, 2018. During the arrest, Stoner noticed 

a tray located on Brooks’s nightstand with another glass pipe and a bag containing a 

white, crystalline substance, later determined to be approximately .27 grams of 

methamphetamine. 

B. Motion for Continuance

Brooks filed a motion for continuance prior to trial on the basis that he was unable 

to locate and serve subpoenas on Brett Yates and Amanda LaFan5, who were material 

witnesses to the assaultive offenses.6 The trial court held a hearing on Brooks’s motion 

on November 25, 2019, wherein the State notified the court that it would not be 

5 LaFan also appears in the record as LeFan. 

6 Brooks’s counsel represented to the trial court that he had filed requests for subpoenas with the 

district clerk’s office ten days prior, but the private process server had been unable to locate the witnesses.
5

proceeding on the assaultive offenses. In response, Brooks’s counsel noted that he 

believed the witnesses were necessary to rebut the information set out in Gilbert’s 

affidavit in support of the October 19, 2018 search warrant as part of Brooks’s motion to

suppress. The trial court took the motion under advisement.

Brooks reurged the motion on December 2, 2019, when the parties were set to 

begin voir dire. During the discussion, Brooks testified that Yates and LaFan “were 

present and observed the behavior of both [Brooks] and [Dowdy]” on the day of the 

alleged assault. On cross examination, Brooks confirmed that neither Yates or LaFan

were present when the warrants were executed on October 19 and November 5. Brooks’s 

counsel noted that while Yates7 may be present at the time of the hearing, LaFan still 

had not been served. The trial court denied Brooks’s motion for continuance. On 

December 5, 2019, prior to opening statements and evidence, Brooks yet again moved 

for a continuance asserting that LaFan had still not been located and served. The trial 

court again denied Brooks’s motion.

C. Motion to Suppress

Although Brooks filed a pretrial motion to suppress, the trial court did not hear the 

motion until after the jury was sworn and empaneled. Brooks’s motion to suppress 

challenged the initial affidavit, alleging the affidavit in support of the request “fail[ed] to 

state facts sufficient to allege[] probable cause to search the residence.” Brooks 

specifically challenged the affidavit as being composed of conclusory statements rather 

than factual allegations, and he argued that the affidavit “fail[ed] to allege sufficient 

7 On December 3, 2019, Brooks filed for a writ of attachment for Yates. Yates was taken into 

custody by SCSO and was present during the jury trial. 
6

underlying facts to demonstrate that there would be a fair probability that evidence tending 

to show that [Brooks] committed an offense would be found in the residence,” the affiant 

failed to corroborate the facts contained therein by independent investigation, and that 

“the information in the affidavit is too general to support a conclusion that any evidence 

tending to show that the Defendant committed an offense would be found.” Despite the 

numerous grounds for suppression listed, at the hearing Brooks only presented evidence 

on and argued that Gilbert intentionally withheld information that would have eliminated 

probable cause for the search warrant. Brooks makes the same argument on appeal and 

does not address the other grounds listed in the motion to suppress.

Gilbert was the only witness to testify during the motion to suppress. Gilbert 

testified that SCSO began investigating an assault after Dowdy went to the Glen Rose 

Medical Center to obtain treatment for injuries allegedly sustained during the assault. 

According to Dowdy’s interview, she was with Brooks and two other individuals on 

October 10, 2018, when the assault occurred: Yates and LaFan—both of whom 

witnessed the assault. Gilbert testified that although he made attempts to interview Yates 

and LaFan, he was unable to. According to Gilbert, Yates and LaFan were homeless and 

did not have phones through which they could be contacted.8

Gilbert stated he did not interview Brooks following the October 10 assault to 

prevent Brooks from removing or destroying potential evidence. Gilbert testified that he 

did not mention Yates or LaFan in his affidavit because he had not located either of them 

8 Gilbert testified that he was aware Yates had a phone that only operated via internet, but Gilbert 

could not contact him on it.
7

by the time he applied for the search warrant. Gilbert recounted that he found Dowdy’s 

claims to be credible based on her injuries, as observed by Beatty and Gonzales, and the 

way she described the assault. Gilbert could not recall whether, at the time he completed 

the probable cause affidavit, he was aware that Dowdy had a criminal history.9

Dowdy’s written statement that she provided to SCSO was admitted for the trial 

court’s review. According to Dowdy’s statement, while in Brooks’s vehicle, Brooks 

grabbed Dowdy, so she grabbed him back. Brooks then repeatedly punched her in the 

head and ultimately grabbed a silver or chrome and black CO2-powered BB gun and shot 

her in the face. Although Yates and LaFan were not specifically named in her statement, 

the statement refers to at least one other individual and explains that during the assault, 

Dowdy “started screaming for someone to hand [her] a knife.” Dowdy’s statement then 

goes on to state that Brooks “put a camo folding knife approximately 4[inches] long to the 

right side of [her] throat.” The assault ended and Dowdy walked away, eventually walking 

herself to the emergency room.

During his case in chief, Brooks called Yates and Dowdy, but the State objected 

as to relevance. After an offer of proof for each witness, the trial court sustained the 

State’s objections. Brooks requested the trial court include a jury instruction pursuant to 

Texas Code of Criminal Procedure article 38.23 regarding unlawful searches or seizures.

TEX. CODE CRIM. PROC. ANN. art. 38.23. The trial court denied Brooks’s motion to suppress

9 When asked by Brooks’s counsel whether Gilbert knew “[t]hat [Dowdy] had been convicted of 

assault on a public servant,” Gilbert responded that, “I would say probably so because, I mean, I knew that 

she had the criminal record, so I would think that I probably knew what it was for.” Brooks’s counsel also 

asked whether Gilbert was “[a]ware that she was currently [sic] on a felony probation for securing the 

execution of a document by deception[,]” to which he responded that “[he] knew ultimately that she was on 

probation.” Records of Dowdy’s convictions were not offered or admitted into the record.
8

and request for jury instruction pursuant to article 38.23 and entered findings of fact and 

conclusions of law related to the motion to suppress and underlying affidavit and search.

D. Motion for Mistrial 

On December 5, 2019, after the jury was empaneled and sworn, but before 

opening statements or evidence was heard, the trial court notified the parties that its civil 

court coordinator, Gina Horton, received a call regarding jury misconduct. Horton testified 

that she received a call from a gentleman who would not identify himself but stated that 

“one of the jurors on the case went to work and talked to co-workers about the case and 

said things that could lead a person to believe that they may have already made up their 

mind as to how they feel about the case.” Although the man would not identify himself, he 

was subsequently identified as Lance Matthews, husband to juror Lory Matthews.

Brooks moved for a mistrial following Horton’s testimony, citing concerns about not 

receiving an impartial jury. An investigator with the Somervell County District Attorney’s 

office, Derrell McCravey, testified that he discovered the caller was Lance. According to 

McCravey’s investigation, Lance called the trial court because he received information 

that another juror, Kimberly Parker, spoke to a co-worker about the case and 

demonstrated that she already determined what the outcome of the case should be. 

Parker’s co-worker was Samantha Gosling, juror Matthews’s daughter and Lance’s

stepdaughter. 

When called to testify, Parker denied making any comments about the case or 

discussing the case. Parker testified that she did not have any information about Brooks, 

did not know who he was, was unaware of the facts of the case, and had not formed an 
9

opinion regarding the outcome of the case. Parker affirmed that she would “keep an open 

mind and give fair consideration to whatever the testimony is of the witnesses and the 

evidence as presented[.]”

Juror Matthews testified that Gosling inquired about the case, but Matthews 

informed her she could not discuss the case. Juror Matthews explained that Gosling told 

her the person Gosling spoke with was not selected for the jury, but juror Matthews 

believed the person was on the jury. According to juror Matthews, Gosling’s inquiry was 

based on her not understanding “why a drug charge would be going before a jury, 

something to that effect.” Juror Matthews denied that Gosling indicated the person 

Gosling spoke with made up their mind about the outcome of the case. When asked by 

the State: “[B]ased on that conversation you had with your daughter, there was nothing 

to indicate to you that somebody on the Jury had already made up their mind[?]” Juror 

Matthews confirmed: “Right.” Juror Matthews also denied having made up her mind about 

the case and confirmed she would listen to the evidence and testimony to reach a verdict.

Gosling testified that Parker “nonchalantly said, oh it’s a drug—a drug charge; I 

didn’t even know they did trials for that.” Gosling said the rest of the conversation involved 

“a joke about how half the town of Glen Rose got summoned,” and “[they] laughed about 

how she said that she’d never been picked for jury duty out of all the times she had been 

summoned.” Gosling repeatedly denied that Parker made any comments about how the 

case might end up but that “she said there must be more to the story and that she would 

have to find out[.]” Following Gosling’s testimony, the parties each made their argument 

to the trial court. The trial court denied Brooks’s motion for mistrial and reminded the jury
10

they were not to discuss any facet of the case with anybody.

E. Trial

During trial, the State called the officers that executed the October 19 and 

November 5 warrants to testify to the items they found and where they found them. James 

Milam, a forensic scientist with the Texas Department of Public Safety Crime Lab, testified

that the 1.61 grams of crystalline substance he tested was methamphetamine. Lindsay 

Gasche, another forensic scientist with the Texas Department of Public Safety Crime Lab, 

testified that the .27 grams of crystalline substance that she tested was 

methamphetamine. 

After the State rested, Brooks called Yates to testify. Brooks’s counsel notified the 

trial court and parties that he intended to question Yates regarding the alleged assault on 

Dowdy which the State objected was irrelevant to the guilt or innocence of the charge of 

possession of a controlled substance. Brooks made an offer of proof wherein Yates 

testified that Dowdy began “wailing [sic] on [Brooks]” following an argument. Yates denied 

that Brooks threatened Dowdy with a knife and denied seeing Brooks shoot Dowdy with 

a BB gun. The trial court sustained the State’s objection to Yates’s testimony. 

Brooks also called Dowdy as a witness. Following the State’s objection to Dowdy’s 

testimony as irrelevant, Brooks made an offer of proof. As part of the offer of proof, Brooks 

demonstrated that he intended to cross-examine Dowdy on her statements made to law 

enforcement regarding the altercation between her and Brooks and to introduce evidence 

of Dowdy’s criminal history. The trial court sustained the State’s objection. 

Brooks testified during trial as well. Brooks’s testimony focused primarily on the 
11

altercation between he and Dowdy. However, Brooks also testified regarding the 

circumstances surrounding the possession charges. Specifically, Brooks testified that due 

to his disabilities, he could not reach the chest of drawers where some of the 

methamphetamine and paraphernalia were found. Brooks denied that the 

methamphetamine recovered from his home belonged to him. Brooks admitted to several

prior felony convictions, including possession of cocaine, possession of 

methamphetamine, and burglary of a habitation. 

The jury found Brooks guilty of possession of a controlled substance of more than 

one gram but less than four grams and possession of a controlled substance of less than 

one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c); TEX. PENAL CODE ANN.

§ 12.42(d). The jury found both enhancement paragraphs to be true and assessed 

punishment at twenty-five years and two years of confinement, respectively, to run 

concurrently in the Texas Department of Criminal Justice–Institutional Division. This 

appeal followed.

II. MOTION FOR MISTRIAL

By his first issue, Brooks argues the trial court erred by denying his motion for 

mistrial based on juror misconduct. 10

A. Standard of Review and Applicable Law

“We review a trial court’s denial of mistrial for an abuse of discretion.” Balderas v. 

State, 517 S.W.3d 756, 783 (Tex. Crim. App. 2016). “[D]ue process does not require a 

new trial every time a juror has been placed in a potentially compromising situation.” 

10 No alternate juror was empaneled.
12

Smith v. Phillips, 455 U.S. 209, 217 (1982). “[I]t is virtually impossible to shield jurors 

from every contact or influence that might theoretically affect their vote.” Id. “Due process 

means a jury capable and willing to decide the case solely on the evidence before it.” Id.

“When a juror converses with an unauthorized person about the case, ‘injury to the 

accused is presumed’ and a new trial may be warranted.” Quinn v. State, 958 S.W.2d 

395, 401 (Tex. Crim. App. 1997) (quoting Robinson v. State, 851 S.W.2d 216, 230 (Tex. 

Crim. App. 1991)). “However, the State may rebut this presumption of harm.” Id. “In 

determining whether the State rebutted the presumption of harm, appellate courts should 

defer to the trial court’s resolution of the historical facts and its determinations concerning 

credibility and demeanor.” Id. Appellate courts “should afford almost total deference to a 

trial court’s determination of historical facts that the record supports especially when the 

trial court’s fact findings are based on an evaluation of credibility and demeanor.” 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). “[I]n essence[,] [we] view 

the evidence in the light most favorable to the trial courts findings (or ruling, if there are 

no pertinent findings).” Quinn, 958 S.W.2d at 402.

B. Analysis

Because the evidence reflects that at least one juror conversed with an 

unauthorized person about the case, injury to Brooks is presumed. See id. at 401. 

However, we must determine whether the presumption was sufficiently rebutted, keeping 

in mind that we “should defer to the trial court’s resolution of the historical facts and its 

determinations concerning credibility and demeanor.” See id. In the present case, Parker 

commented to Gosling that she was not aware that defendants were afforded jury trials 
13

for drug charges. Despite Lance Matthews’s concern that Parker had made her mind up 

about the case, Gosling denied that Parker made any indication about her thoughts 

regarding guilt or innocence. Gosling then raised the issue with her mother, juror 

Matthews. Both juror Matthews and Gosling testified that juror Matthews promptly ended 

the discussion after Gosling brought it up. Both jurors, Matthews and Parker, testified that 

they had not made up their mind about the case and were willing to hear all the evidence 

and testimony presented. The conversations involving Matthews, Parker, and Gosling all 

took place prior to opening statements and the presentation of evidence.

In Quinn, a juror had a phone conversation with a co-worker wherein the juror told 

the co-worker that the case involved the rape of a five-year-old child and made comments 

about possible punishments for the defendant. See id. at 397. When questioned, the juror 

testified that he had “fully and fairly listen[ed] to all [the] testimony presented in [the 

defendant’s] defense with an open mind.” Id. at 399. The Texas Court of Criminal Appeals 

concluded that the record supported the trial court’s findings that the juror did not 

communicate the conversation to any other jurors and that the conversation did not affect 

the jury’s deliberations. Id. at 402. Accordingly, the court held that the evidence supported 

trial court's decision to deny appellant's motion for new trial on the ground of improper 

juror communications. Id.

Here, the trial court did not make explicit findings regarding the jurors’ 

communication with unauthorized parties. However, the trial court’s ruling indicates that 

the State overcame the presumption of harm to Brooks. See id. Giving the appropriate 

deference to the trial court, we conclude that the record supports the trial court’s ruling.
14

See id. Specifically, the words communicated by the jurors did not indicate that the jurors 

had reached a conclusion about the case. See id. Further, both jurors testified under oath 

that they were willing to hear all the evidence and testimony presented and only then 

decide. See id. Accordingly, we conclude that the trial court did not abuse its discretion 

when it denied Brooks’s motion for mistrial. See Balderas, 517 S.W.3d at 783. Brooks’s 

first issue is overruled. 

III. MOTION FOR CONTINUANCE

By his second issue, Brooks argues the trial court erred by denying his motion for 

continuance to secure two witnesses’ presence at trial.

A. Standard of Review and Applicable Law

“A trial court’s ruling on a motion for continuance is reviewed for an abuse of 

discretion.” Cruz v. State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.); 

see also Gonzales v. State, No. 10-19-00208-CR, 2020 WL 5938812, *1 (Tex. App.—

Waco Aug. 26, 2020, no pet.) (mem. op., not designated for publication). “A trial court 

does not abuse its discretion as long as its decision is within the zone of reasonable 

disagreement.” Cruz, 565 S.W.3d at 381. “[I]n order to show reversible error predicated 

on the denial of a pretrial motion for continuance, a defendant must demonstrate both 

that the trial court erred in denying the motion and that the lack of a continuance harmed 

him.” Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). To show harm, a

defendant is required to show “that the case made for delay was so convincing that no 

reasonable trial judge could conclude that scheduling and other considerations as well as 

fairness to the State outweighed the defendant’s interest in the delay of trial.” Id. (quoting 
15

George Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure

§ 28.56 (2d ed. 2001), at 532–33).

“A criminal [a]ction may be continued on the written motion of the State or of the 

defendant, upon sufficient cause shown.” TEX. CODE CRIM. PROC. § 29.03. “A missing 

witness is a valid reason for continuance and serves to justify appropriate delay.” Hart v. 

State, 818 S.W.2d 430, 437 (Tex. App.—Corpus Christi–Edinburg 1991, no pet.). In an 

original motion for continuance by a defendant on the basis of a missing witness, the 

motion must state:

1. The name of the witness and his residence, if known, or that his 

residence is not known.

2. The diligence which has been used to procure his attendance; and it 

shall not be considered sufficient diligence to have caused to be issued, 

or to have applied for, a subpoena, in cases where the law authorized 

an attachment to issue.

3. The facts which are expected to be proved by the witness, and it must 

appear to the court that they are material.

4. That the witness is not absent by the procurement or consent of the 

defendant.

5. That the motion is not made for delay.

6. That there is no reasonable expectation that attendance of the witness 

can be secured during the present term of court by a postponement of 

the trial to some future day of said term. The truth of the first, or any 

subsequent motion, as well as the merit of the ground set forth therein 

and its sufficiency shall be addressed to the sound discretion of the court 

called to pass upon the same, and shall not be granted as a matter of 

right. If a motion for continuance be overruled, and the defendant 

convicted, if it appear upon the trial that the evidence of the witness or 

witnesses named in the motion was of a material character, and that the 

facts set forth in said motion were probably true, a new trial should be 

granted, and the cause continued or postponed to a future day of the 

same term.
16

TEX. CODE CRIM. PROC. ANN. art. 29.06. In order to obtain a continuance, the witness must 

be material. See Hardin v. State, 471 S.W.2d 60, 62 (Tex. Crim. App. 1971). Subsequent

motions for continuance on the same ground shall state: “(1) that the testimony cannot 

be procured from any other source known to the defendant; and (2) that the defendant 

has a reasonable expectation of procuring the same at the next term of court.” TEX. CODE 

CRIM. PROC. ANN. art. 29.07.

B. Analysis

Brooks’s first motion for continuance was filed on November 25, 2019,

approximately one week before trial was scheduled to begin. Although Brooks’s motion 

did not fully comply with the requirements set forth in article 29.06, the State did not object 

to Brooks’s motion, and the trial court heard evidence and argument related to Brooks’s 

motion. See id. art. 29.06. Brooks alleged that witnesses Yates and LaFan were material 

witnesses to the alleged assault and would offer testimony contrary to Dowdy’s 

statements. Neither Brooks nor the State had reliable addresses for either witness. 

Brooks requested subpoenas be issued on November 15, which were subsequently 

issued by the district clerk’s office. The trial court took Brooks’s motion for continuance

under advisement and postponed ruling until December 2, 2019, when jury selection was 

set to begin. Brooks reurged his motion for continuance again on December 5, 2019, prior 

to the start of opening statements and presentment of evidence. By this time, Yates had 

been found and was in the custody of SCSO, pursuant to a writ of attachment. 

At the time Brooks’s motion was heard, the State abandoned the two aggravated 

assault with a deadly weapon charges—the charges of which Yates and LaFan were 
17

alleged to be material witnesses. As the State noted, Yates and LaFan were not alleged 

to have any knowledge of or would present testimony to Brooks’s charges of possession 

of a controlled substance. See id. art. 29.06(3). Brooks alleges that, contrary to the State’s 

assertion, LaFan’s testimony was necessary and material as a “key part of the defense 

strategy” of filing and arguing his motion to suppress. As discussed infra, LaFan’s 

testimony was neither material nor necessary for the trial court to consider Brooks’s

motion to suppress. See id. art. 29.06(6), 29.07(1); Hardin, 471 S.W.2d at 62. Yates and 

LaFan were both present during the alleged assault; however, despite Yates’s 

appearance via writ of attachment, Brooks did not call Yates as a witness during his 

motion to suppress hearing. See TEX. CODE CRIM. PROC. ANN. art. 29.07(1). Further, 

Brooks provided no argument or evidence that he would be able to secure LaFan’s 

presence with a continuance. See id. art. 29.06(6), 29.07(2). Accordingly, the trial court 

did not abuse its discretion when it denied Brooks’s motion for continuance. See Cruz, 

565 S.W.3d at 381. Brooks’s second issue is overruled.

IV. MOTION TO SUPPRESS

By his third issue, Brooks argues the trial court erred by denying his motion to 

suppress. Specifically, Brooks argues the probable cause affidavit upon which the 

October 19, 2018 search warrant relied omitted material information that would have 

eliminated probable cause.

A. Standard of Review and Applicable Law

In reviewing probable cause in an affidavit, “we give great deference to the 

magistrate’s decision to issue the warrant and determine whether, considering the totality 
18

of the circumstances, the magistrate had a ‘substantial basis for concluding probable 

cause existed.’” Morris v. State, 62 S.W.3d 817, 821 (Tex. App.—Waco 2001, no pet.) 

(quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)); see also Martin v. State, 620 S.W.3d 

749, 763 (Tex. Crim. App. 2021). “Whether probable cause exists to support the issuance 

of a search warrant is determined from the ‘four corners’ of the affidavit alone.” Id. (citing 

Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996)). “[T]he test is whether the 

affidavit, read in a commonsensical and realistic manner and afforded all reasonable 

inferences from the facts contained within, provided the magistrate with a ‘substantial 

basis’ for the issuance of a warrant.” Foreman v. State, 613 S.W.3d 160, 164 (Tex. Crim. 

App. 2020) (quoting State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011)).

Whether probable cause exists is a question of law. Ramos v. State, 31 S.W.3d 762, 764 

(Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 

89 (Tex. Crim. App. 1997)).

“Statements made during the pre-trial hearing on the motion to suppress do not 

factor into that determination.” Id. However,

where the defendant makes a substantial preliminary showing that a false 

statement knowingly and intentionally, or with reckless disregard for the 

truth, was included by the affiant in the warrant affidavit, and if the allegedly 

false statement is necessary to the finding of probable cause, the Fourth 

Amendment requires that a hearing be held at the defendant’s request.

Franks v. Delaware, 438 U.S. 154, 155–56 (1978). If the defendant establishes by a 

preponderance of the evidence that the affiant committed perjury or recklessly

disregarded the truth, the affidavit is considered without the false information. Id. at 156.

If the false information is set aside and “the remaining content is insufficient to establish 
19

probable cause, the search warrant must be voided and the fruits of the search excluded 

to the same extent as if probable cause was lacking on the face of the affidavit.” Id.; 

Hyland v. State, 574 S.W.3d 904, 912 (Tex. Crim. App. 2019). While some federal courts 

have held that Franks equally applies to omissions in the affidavit, the Texas Court of 

Criminal Appeals has not yet done so. See Massey, 933 S.W.2d at 146; see also Renteria 

v. State, 206 S.W.3d 689, 703–04 (Tex. Crim. App. 2006) (assuming but not deciding 

Franks applies to material omissions); but see Gonzales v. State, 481 S.W.3d 300, 311 

(Tex. App.—San Antonio 2015, no pet.) (holding Franks does apply to material omissions 

in the probable cause affidavit). If Franks were to apply to omissions made intentionally 

or with reckless disregard for the accuracy of the affidavit, “the trial court would determine 

whether, if the omitted material had been included in the affidavit, the affidavit would still 

establish probable cause for the defendant’s arrest.” Gonzales, 481 S.W.3d at 311. “If, 

after including the omitted material, the affidavit did not establish probable cause, then 

the search warrant would be voided and the fruits of the search excluded.” Id.

B. Analysis

In order for Franks to apply, Brooks was required to show that Gilbert withheld 

material information either intentionally or with reckless disregard for the accuracy of the 

affidavit. See id. Brooks made no showing that Gilbert acted intentionally or with reckless 

disregard for the accuracy of the affidavit. See Gonzales, 481 S.W.3d at 311. Here, 

Dowdy complained that Brooks had assaulted her by punching her in the head and 

shooting her in the face with a BB gun. Beatty personally observed Dowdy’s facial

swelling, hole in her cheek, and blood on her hospital bed and clothing— consistent with 
20

her description of the events. See Foreman, 613 S.W.3d at 164. Further, Gilbert included 

in the affidavit that Dowdy told officers the altercation initiated as an argument, that she 

struck Brooks as well, and that she requested a knife in response to Brooks striking her 

with his fists. See id. Finally, Dowdy was able to describe the situation with a significant 

amount of detail, including the time, location, and manner of the attack. See id. Given the 

totality of the circumstances, Dowdy’s criminal history and the absence of identifying 

information for two potential witnesses in the affidavit was not material. See Massey, 933 

S.W.2d at 145–46; Foreman, 613 S.W.3d at 164. Even if the omitted information11 was 

included in the probable cause affidavit, the magistrate had a substantial basis for 

determining probable cause existed. See Foreman, 613 S.W.3d at 164; Morris, 62 S.W.3d 

at 821. Brooks’s third issue is overruled.

V. ARTICLE 38.23 INSTRUCTION

By his fourth and fifth issues, Brooks argues the trial court erred by excluding 

Dowdy’s and Yates’s testimony as it relates to the underlying assault and committed 

harmful error by excluding an article 38.23 instruction in the jury charge, respectively. See

TEX. CODE CRIM. PROC. ANN. art. 38.23. Because Brooks’s article 38.23 instruction relied 

on the testimony of Dowdy and Yates, we consider these issues together.

A. Standard of Review and Applicable Law

1. Witness Testimony

“We review a trial court’s exclusion of testimony under an abuse of discretion 

11 Although Brooks argues on appeal that Gilbert did not include in his affidavit that Dowdy is on 

probation for executing a document by deception, Dowdy’s criminal history was never sufficiently 

established. However, even assuming that is true, our conclusion stands. See Gonzales v. State, 481 

S.W.3d 300, 311 (Tex. App.—San Antonio 2015, no pet.).
21

standard.” Webb v. State, 575 S.W.3d 905, 907 (Tex. App.—Waco 2019, pet. ref’d). A 

trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to 

any guiding rules or principles.” Id. “When considering a trial court’s decision to admit or 

exclude evidence, we will not reverse the trial court’s ruling unless it falls outside the ‘zone 

of reasonable disagreement.’” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 380 

(Tex. Crim. App. 1990)).

“Irrelevant evidence is not admissible.” TEX. R. EVID. 402. “Evidence is relevant if: 

(a) it has any tendency to make a fact more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in determining the action.” Id. R. 401; Teer 

v. State, 895 S.W.2d 845, 851 (Tex. App.—Waco 1995, pet. dism’d). “Exclusion of 

evidence will result in reversal only where a substantial right of the accused has been 

affected.” Id.

2. Article 38.23 Instruction

“We review the trial court’s decision not to include a defensive issue in the jury 

charge for an abuse of discretion.” Bundage v. State, 470 S.W.3d 227, 231 (Tex. App.—

Houston [1st Dist.] 2015, no pet.); see also Thomas v. State, No. 10-11-00250-CR, 2013 

WL 2639168, *7 (Tex. App.—Waco June 6, 2013, no pet.) (mem. op. not designated for 

publication) (applying abuse of discretion standard to denial of article 38.23(a) instruction 

in jury charge). When we review a charge for potential error, we engage in a two-step 

process. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The standard of 

review differs depending on whether the defendant made a timely objection at trial. Jordan 

v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). If the error was the subject of a 
22

timely objection, as here, reversal is required if there is some harm to the defendant as a 

result of the error. TEX. CODE CRIM. PROC. ANN. art. 36.19; Gonzalez v. State, 610 S.W.3d 

22, 27 (Tex. Crim. App. 2020). First, we determine if there was error and, if so, we 

determine if there is some harm to the defendant. Id.

A trial court must give a requested instruction on every defensive issue raised by 

the evidence without regard to its source or strength, even if the evidence is contradicted 

or not credible. Krajcovic v. State, 393 S.W.2d 282, 286 (Tex. Crim. App. 2013); see also

TEX. PENAL CODE ANN. § 2.03(c) (“The issue of the existence of a defense is not submitted 

to the jury unless evidence is admitted supporting the defense.”). Article 38.23(a) of the 

code of criminal procedure provides that:

No evidence obtained by an officer or other person in violation of any 

provisions of the Constitution or laws of the State of Texas, or of the 

Constitution or laws of the United States of America, shall be admitted in 

evidence against the accused on the trial of any criminal case. 

In any case where the legal evidence raises an issue hereunder, the jury 

shall be instructed that if it believes, or has a reasonable doubt, that the 

evidence was obtained in violation of the provisions of this Article, then and 

in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). But “[i]t is an exception to [article 38.23(a)] that 

the evidence was obtained by a law enforcement officer acting in objective good faith 

reliance upon a warrant issued by a neutral magistrate based on probable cause.” Id. art. 

38.23(b).

“A defendant’s right to the submission of jury instructions under Article 38.23(a) is 

limited to disputed issues of fact that are material to his claim of a constitutional or 

statutory violation that would render evidence inadmissible.” Madden v. State, 242 
23

S.W.3d 504, 509–10 (Tex. Crim. App. 2007). To be entitled to the submission of jury 

instructions under article 38.23(a), a defendant must meet three requirements: (1) the 

evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must 

be affirmatively contested; and (3) that contested factual issue must be material to the 

lawfulness of the challenged conduct in obtaining the evidence. Id. at 510.

B. Analysis 

After the State objected to the relevance of Yates’s testimony as to the possession 

charges, Brooks made an offer of proof as to Yates’s anticipated testimony. The summary 

of Yates’s testimony was that Dowdy was the aggressor in the altercation that led to the 

search warrant. Brooks argued that the testimony was in support of Brooks’s motion to 

suppress, despite the motion to suppress having been denied. The trial court sustained 

the State’s objection. The State similarly objected to Dowdy’s testimony. During Brooks’s 

offer of proof as to Dowdy’s testimony, Brooks identified to the trial court that he would 

“like to offer the evidence of her misstatements[

12] . . . . and be permitted to impeach her 

with her two prior felony convictions.” The trial court again sustained the State’s relevance

objection. Because neither Yates nor Dowdy’s testimony tended to make the existence 

of whether Brooks was in possession of methamphetamine more or less probable, their 

testimony was not relevant to the matter before the jury. See TEX. R. EVID. 401, 402; Teer, 

895 S.W.2d at 851. Further, their testimony did not tend to make whether Gilbert acted in 

good or bad faith more or less probable. See TEX. R. EVID. 401, 402; Teer, 895 S.W.2d at 

851. The trial court did not abuse its discretion by sustaining the State’s objection and 

12 The misstatements Brooks referred to was the use of one of two racial slurs that a third party 

used during the argument; Dowdy had previously used one in writing and another during her testimony. 
24

excluding Yates’s and Dowdy’s testimony. See Baldree, 248 S.W.3d at 230.

Regarding Brooks’s jury instruction challenge, as noted supra, whether probable 

cause exists is a matter of law, not fact. See Ramos, 31 S.W.3d at 764. As such, Brooks 

would not be entitled to the instruction absent a question of fact for the jury. See Madden, 

242 S.W.3d at 510. Further, article 38.23(b) provides an exception for the instruction 

when “the evidence was obtained by a law enforcement officer acting in objective good 

faith reliance upon a warrant issued by a neutral magistrate based on probable cause.”

See TEX. CODE CRIM. PROC. ANN. art. 38.23(b). Having previously concluded that Gilbert 

did not act intentionally or with reckless disregard to the accuracy of the affidavit, we 

conclude article 38.23(b) is implicated. See id. Accordingly, Brooks was not entitled to a 

jury instruction under article 38.23(a), and the trial court did not abuse its discretion in 

denying Brooks’s requested instruction. See id.; Ramos, 31 S.W.3d at 764. Brooks’s 

fourth and fifth issues are overruled. 

VI. CONCLUSION

We affirm the trial court’s judgment. 

CLARISSA SILVA

Justice

Do not publish.

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

Delivered and filed on the

17th day of June, 2021.