## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-21-00087- CR

PRENTIS EARL SMITH II , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14990

Be fore Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
A Marion County jury found Prentis Earl Smith II guilty of the murder of Freddy
Thomas. F ollowing the jury’s recommendation, the trial court s en tenced Smith to seventy

- five
years ’ confinement in prison

. On appeal, Smith argues that the trial court erred by (1) allowing the State’s medical expert to testify in v iolation of the Confrontation Clause , (2) allowing the
State’s forensic medical expert to test ify despi t e insufficient notice , (3) admitting autopsy photographs over his hearsay objection , (4) admitting evidence of an unadjudicated extraneous
offense , (5) allowing the State’s toxicology expert to testify about the results of her testing, and (6) ov erru li ng S m i th’s Confrontation Clause objection to the testimony of the Stat e ’s toxicologist.
B ecause we find that (1) the forensic expert ’s testimony did not violate the C onfrontation
C lause , (2) the trial court did not abuse its discretion in al lowing the untimely disclos e d witness to testify , (3) the autopsy photographs were not hearsay , (4) even if erroneous , admission of
evidence of an extraneous offense was harmless err or , (5) allowing the toxicology expert to testify was not error , and (6) t he toxi cology expert’s t esti mon y di d not implicate the
C onfrontation Clause , we affirm the trial court’s judgment

. I. Background On May 7, 2018, Pamela Goynes called the Marion County Sher iff’s Department several times, asking them to perform a welfare ch eck on her hu sband, Smit h, b eca us e she believed that he might be sick. She riff David McKnight and an ambulance arrived at Smith’s home to check
on him. McKnight testifie d that , at the time, Smith seemed agitate d, annoyed, and incoherent.3 Smith told Mc Knight that “ Freddy” was in his h ous e and that he had a gun. McKnight believed “Freddy” to be one of Smith’s known acquaintances, Freddy Thomas. McKnight and Deputy Fran k Cason entered and searched the house, finding a handgun, a large pool of blood,
and an ove rturne d sofa that was pa rt ial ly on top of Thomas ’s body

. The gun was located “fairly
near” to Thomas. Upon realizing that Thomas was still alive, he was transport ed to a hospital

. Even so, Thomas died three days later. McKnight read Smith his M iranda 1 warni ngs and ask ed h im ab out the events leading up to the shooting. Smith told McKnight that someone was puttin g drugs in his milk and the well water on his prope rty . Smith also mentioned that Thomas had been trying to sell him a Taurus
.380 hand gun, th e same gun found in t he ho use. Smith said that , prior to confronting Thomas, he had gone into his bedroom to put on his shoes and “fighting attire.” When McKnight asked
Smith if he shot Thomas, Smith responded, “ M ore than likely I did.”
When the police fo und Thomas in Smit h’s h ous e, he had both the gun and a knife near him, and he had a cra ck pipe in one hand. McKnight said it was a “fair assumption” that Thomas had ingested crack at some point. Knowing that people who smoke crack can be danger ous bec aus e it causes “[p]ar ano ia , a gitation,

. . . incoherence, [ and ] high energy, ” McKnight was “sure” that Thomas would have been a “difficult person to deal with if he was high on crack.” 2

1 See Mi ra nda v. Arizona , 384 U.S. 43 6 (1966).

2 McKnight te stified a bo ut the various interaction s he had ha d with Thomas in the past. He said Thomas wa s a man that could “pick a fi ght , ” as he was “cankerous” and “a ssaultive” in nature. From McKnight’s experi e nc e, Tho mas had “probably” threatened peopl e in the pa st, and i f he had threatened to kill othe rs, it would not be a surprise to McKnight. Cason a lso confirmed that he had pri or interactions with Thomas . He b elieved that Thomas cou ld b e difficult to dea l w it h at times

. Cason testified that it wa s poss ible that Thom a s c o uld have been on crack, brought a gun to Smith’s house, and then threatened him.4 According to Cason, Smith did not “remember everything, but h e did r eme mber seeing the gu n a nd re membered shooting [Thomas ].” Smith told Cason that Thomas “went for the backpack” that had the gun in it, and Smith “went for [Thomas ].” Smith also said that Thomas
had threatened to kill him

. When Cason asked Smith h ow man y t imes he had shot t he gu n , S mith s ai d, “I shot, I shot, I asked him to stay down, and I shot low.” Smith said that Thomas was still “talking shit , ” so he shot on ce more and then did not “ remember anything else.” Cason
testified that there was som e coag ul ation of th e bloo d fou nd on the fl oor and sofa, indicating that some time had passed after the blood got there. Because there was blood on the bottom of the
sofa , Cason believed that Thomas had been sitting on the sofa at the time or after he was shot.
Cason la ter obta ine d text messa ges from Goynes’ s phone regarding a conversation
between her and Smith . The conversation occurr ed between 6:21 a.m. and 8:46 a. m. on the morning of the shooting. The texts from Smith stated that he was “real scar ed , ” t ha t he could not “let no bo dy h urt th e house , ” and that “[Thomas ha d ] got all [his] knives.” The texts also
revealed tha t Smith knew there was a gun in Thomas’s bac kpack . I n one text , Smith said , “I’m going for the backpack.” The recordings from t he p olice body camer as co nfi rm ed that Smith was jittery and speaking quickly and that he said he was very thirsty. Due to Smith’s speech and behavior,
Cason believed t hat Smith was under the influence of “methamphetamine, amphetamine, or speed.” Althou gh Smi th told McKnight t hat th er e was a bag of metham phetamine in the house, a search failed to find any illegal drugs. Smith said he was “high as hell” and felt as if h e had5 ingested PCP, so McKnight instructed one of his deputies to have Smith’s blood d rawn f or a drug test.
Sev era l witnesses testi fied t hat Smith had a history of making bizarre statements and that he had made several that day while the police were ther e. Sheila Stokes, a jail captain for the Marion County Sheriff’s Office, testified th at , in the months leadin g u p t o the May 7 shooti ng, th e s heriff’s office rece ived multiple disturbing phone calls from Smith, falsely claiming that people were in and aro und his home trying to kill him . Smith also accus ed Goynes and others of being out t o get h im , and he had thr eat en e d to commit suicide. The di spatched officers and emergency personnel repeatedly found Smith “excited , ” “ [ c ] onfused , ” and “paranoid.” 3
D r. Amy Gruszecki , a forensic pathologist with American Forensics in Mesquite, Texas,

te s tifi ed that , on Ma y 11, 2 018 , a n autopsy was performed on Thomas

. T he autopsy determined
that the cause of death was gunshot wounds to the head and neck, and the death was determined
to be a homicide. Gruszecki testified that she c ould not determine whic h sh ot occurred first.
D ue t o t he lack of stippling on Tho mas’s skin, the gunshots were classified as indeterminate or distant

- range wounds. She surmised that Thomas was likely moving when he was shot . Yet, on

cross - exa mination, Gruszecki admitted that she co uld not determine whet he r it was Thomas or
Smith who was moving when the shot occurred. The autopsy also revealed that Thomas did not
have crack cocaine in his system, but Gruszecki testified that , in her indep endent expert opini on,

3 Cason testified that Smith told hi m that all the knives h ad b een removed from his house and that a bat h ad b een taken as well

. Noneth eless , Cason found a blo ck of kni ve s i n the ki tchen and saw a bat hanging over t he fireplace. Similarly, De puty Robert Davis, who was processing the scene, testified that Smith ma de s everal odd statements, incl uding that Goy n es w as trying to “overdose” h im, that Goyne s was pois oning his m il k , and th at Goynes had sent a dog to the ho use to bark.6 she would expect any c ra ck to have been comp le t ely metabolized between i ngesti ng it on M ay 7 and Thomas’s death on May 10

. Christi Cheng, a forensic scientist for the Texas Depart ment of Public Safety’s (DPS) crime laboratory, te stified t hat she had conducted a DNA an alys is on the handgun, i ts m ag a zine,
and swabs of the blood

- st ained area of the living room. She was unable to make any DNA comparisons from the handgun or magazine b ecause there were five different DNA traces on it,
but she testified that the DNA swabs f rom bl ood in t he living room m a tched Thomas.
Smith , testifyi ng in his own defense, admitted to being diagnosed with schizoaffective
disorder and to taking several me dications to manage his mental health . Smith als o testified that
he had been previously conv ic ted of several cri mes, i n cluding simple assault, burgla ry of a building, driving while intoxicated, and evading arrest.
Smith explain ed that Thomas had been l iving at his house for a while

. Smith spent week s trying to get Thomas to leave. At som e po in t, Smit h would dri ve T ho m as into town and drop
him off

. B ut , within a short period of time, Thomas would show up again, knocking on his door.
It was around tha t time that Smith voluntarily checked h imself into the Department of Veteran s Affairs cli ni c be cause he was suffe ring f r om delusions.
A few da ys prior to the shooting

— Smith estimated it was May 2 or May 3

— Thomas
talked to Smith about the details of an “ old murder” in Marion County

. Smith s aid he was put “on edge” when Thomas claimed to be th e pe rpetrator of the m urde r. Th omas was also tr ying t o get Smith to purchase a gun from him even though Smith said he had a rule that no firearms were7 allowed in hi s house because he was a convicted fel on. Smith said that he planned to purchase the gun s o he could thro w it “a cros s t he bushes” to get i t away from his house. As was Thomas’s pattern, he returned to Smith’s house on May 6. On his mother’s advice, Smi th called the police, spoke with Tonya Hulett , and informed her that Thomas had a
g un . E ve n so , no deputies ever cam e t o Smith’s house. T hat ni ght, Thomas went into Smith’s room “over and over again , ” asking him if he wanted a hit of marihuana. Smith te stified that he did not ingest any dru gs that ni ght or during the following morning

. B ec au se T homas was acting

c razy , S mith said that he “ waited until daybreak , ” got dressed, and prepared himself for the
“worst situation.” Smith also sent Goynes several texts while he waited. During his te stimony, Smith explained that he and Thomas were si tt in g on different
sofas , fa ci n g one another, and that t he backpack containing the gun was sitting on a wheelchair
across the coffee table from Thomas. Smith “wanted [his] hous e back , ” but when he asked
T homas to leave, Thomas laughed at him. Smith testi fi ed t hat Thomas lunged “acr os s the
table

. . . to get h is bag

. ” Smith then “came up across the table

. . . into [Thomas],” trying to “wrap him up.” The two men coll ided, and the gun fell to the floor

. Smith claimed that he had “no idea where the gun c a me f ro m.” Smith also st ated t h at he was afraid f or his life

. A s they both wrest l ed for the gun, Smith grabbed it

. Then Thomas pushed him, and the
gun went off once

. Smith said he then fire d the gun again, aiming low, trying to “shoot him in the leg or som et hing.” Smith beli eved t h at he had shot Tho mas in the leg with the second shot, and he asked Thomas “to stay down

. ” Instead, Thomas got u p and “[kept] coming” a fter Smith, so he pointed the gun at Thomas and fired twice more. Smith claimed that he had no t intend ed to8 kill Tho ma s
. He then threw the gun d own, got into his car, left the house, and texted Goynes to
tell her to call the police because they “won’t re spond to [his] request for help.” Smith was asked if he had ever denied shooting Thom as, and h e said , “ N o, I alw ays te l l I did it.”
II. Grusze cki’s Testimony Did Not Violate the Confro ntation Clause In his first point of erro r, Smith argues that allowi ng Gruszecki to pre sent expert testimony violated his rights under the Confrontatio n Clau se b ec ause her testimony was b a sed on an autopsy that s he did not perform and an autopsy report that she did not prepare
. The Sixth Amendment to the United States Co nstitution provides that , “[i]n all criminal prosecutions, the accused shall enjoy the ri ght

. . . to be confront ed w it h the witnesses against
h im. ” U .S. C ONST

. amend

. VI. “ [T]o implicate the Confrontation Clause, an out

- of

- court statement must (1) have b een made by a witne ss absent from trial and (2) be testimonial in
nature.” Woodall v. St ate , 3 36 S.W.3d 634, 642 (Te x. Crim. App. 2011) (citing Crawf ord v. Washington , 541 U.S. 36, 50

– 52, 59 (2004)). We employ a de novo review in determining

“ whether a s tatement is testimo nial or non - testimonial. ” Wall v. State , 184 S.W.3d 730, 742 (T ex. Cr im. Ap p. 2006). A state ment i s “testimonial” when circ umstan ces objectively indicate it was taken for the primary purpose of “establish[ing] or prov[ing] past events potentially relevan t to later criminal prosecution.” Davis v. Washington , 547 U.S. 813, 822 (2 006). “A document

cre at e d solely for an ‘evident iary p urpose[ ]’

. . . made in aid of a police investigation .

. . ranks as
testimonial.” Bullcoming v. New Mexi co , 564 U.S. 647, 6 64 (2011). Once the two Crawford
conditions have b een met and t he Con fron ta tion Clause has be en i mp l icated, testimonial hear say9 is admissible only where “(1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross - examine the d eclarant.” Woodall , 336 S.W.3d at 642. At trial, Smith object ed to Grus ze cki ’s testimony, a rgui ng , in part, that it viol a t ed his rights under the Confrontation Clause because he was being denied the opportunity to cross

examine Dr. De nika Adams, the per son who performed the autopsy and prepared the autopsy report. The tr ial co urt overruled his obje ct i o n
. On appeal, Smith re lies p rimarily on Melendez

Diaz v. Massachusetts , 557 U.S. 305 (2009), and Bullcoming in support of his contenti on that the
trial c ourt erred in overruling his objection concerning the admission of an unav ai lable witness’s

te stim on i al out

- of

- court statemen t. Bu t Smith’s cited cases are not directly on point. Both
Melendez

- Diaz and Bullcoming involved forensic repo rts that were admit ted into evidence at
trial. That was not the case here.
The f acts o f th is case are more lik e th os e of Moore v. State , wher e the trial court allowed Dyer, a forensic pathologist, to testify even though her testimony was based on an aut opsy that
she did n ot perform and histological slides and photographs that she did not pr epar e. Moore v.
State , 553 S. W .3d 119, 122

– 23 (Tex. Ap p.

— Tex arkana 2018 , pet. ref ’ d ). We held that Dyer’s testimony did not violate the Confrontation Clause becau se n either the autopsy report nor the
slides were offered into evidence ; the photograph s wer e non te stimonial in natur e ; 4 Dy e r “reached an inde pendent conc lusion based on her review of the autopsy report, photographs, and

4 Autopsy p hotographs a re nontestimonial in nature for the purposes of t he Confrontation Clause

. S ee T EX

. R. E VID

. 801(a); He rrera v. State , 3 67 S.W.3d 762, 773 (Tex. Ap p.

— Houston [14 th Dist.] 2012, no p e t. ) (autops y photograph is a nontestimonial s tatement); Wood v. State , 299 S.W.3d 200, 214

– 15 (Tex. App.

— Austin 2009, pet. ref ’ d).10 slides ” ; and she was cross - examine d reg arding her conc lusions, the documents she reviewed, and her interpretation of the p hotog r aphs a nd slides. Id. at 123

– 2 4

. Likewise, in thi s case, Grus zecki testified that the other forensic pathologist with American Forensics, Adams, actually performe d the autopsy and pr epared the autopsy report and its photographs. Although she signed off o n the r eport, Gruszecki a dmit te d that she did not supervise th e autopsy or sign off on the autopsy report as the supervisor. She testified that , be cause the American F orensics office was a “very small practice ” and they both had the requisite medica l trai n ing an d expertise, she a nd A da m s regularly “check ed each othe r” and performed a “quality assurance [] ” process by reviewing autopsy report s , autop sy photographs,
and al l the othe r autopsy

- related information before signing off on each other’s work

. In
pre p arat io n for her testimon y, G ru s zecki reviewed everything t hat Adams would have had to review, including the autopsy report, the photog raphs, Thomas’s medical records, the police “paperwork” sent with Thomas’s body, and the reports from her office ’s “certi f ied in vestigator”
who in terv ie w ed family and l aw enforceme nt regarding Thomas.
Gruszecki testified regarding the wounds shown in the autopsy photographs, the bullets ’ pathways through Thomas’s body, and the internal damage resulting from them. She expl a ined

t hat, based on the auto ps y report, the ph otographs, a nd the other r elated information, she had made several “findings.” In her expert opinion, Thomas’s death was caused by two gunshot
wounds

— one to the head and one to the neck

— that were fir ed from a gun th at was an11 intermed iate o r middle distanc e from his b ody, while Thomas and/or the person firing the gun could have been moving. 5 T he autopsy report was not offer ed or admi tted into evidence

. R ather than being a surrogate witness profferi ng an exp l ana ti o n of another pers on’s

t e s timonial eviden ce, the reco rd reflects that Gruszecki reached independent conclusions based not only on her review of the autopsy repor t, but also photographs and other autopsy

- related
info r mation

. See Paredes v. S tate , 462 S.W .3 d 510, 517

– 18 (Tex . Cr im

. App. 20 15) ; M oore , 553 S.W. 3d at 123

– 24

. Moreover, a s in Moore , S mith was able to cross - examine Gruszecki regarding her conclusions an d the docum ents she reviewed and elicited testimony that (1) she

was unable t o de termine w hic h o f the two wounds was su f f ered f irst , (2) she was unable to determine which of the gunshots caused Thomas’s death , and (3) Th omas’s gunshot wounds
could have b ee n caused during a “scuffle” with Smith. See Moore , 553 S.W.3d at 123

– 2 4.
B ased on the f o reg oi n g, we are persuad ed t ha t Gr uszecki’s testimony di d not violate the Confrontation Clause, and we overrule this point of error.
III. Allowing Untime ly Disclos e d Expert Witness to Testify W as Not Error
In his second point of err or, S mith argues that t he tr i al court erre d in al l o wi ng Gruszecki’s testimo ny because the State failed to timely notify him that the State intended to call her as an expert witness. Upon the defendant’s proper request, the State is required to disclose t he ex pert witnesses
it int en d s to call at trial , a n d unless otherwise orde red by the court, the State must make this

5 Gruszecki test ified that Thomas’s manner of death w as “h om ic ide” and explained that, in forensics, there are only five m an n e rs of d eath: natural, accident al , suicid al , homicid al , and undeterm ined. She explained the differences between them and wh y she found Thomas’s de ath to be a homicide.12 disclosure “not later than the 20 th day before the date that jury selection in the trial is schedule d

t o begin.” 6 T EX

. C ODE C RIM

. P ROC

. A NN

. a rt

. 39.14(b) (Supp

. ) ; Hi g

htower v. Sta te , 6 29 S

. W.2d
920 , 925 (Tex. Cr im. App. [Panel Op.] 1981) ; Osbourn v. State , 59 S

. W.3d 809 , 816 (Tex. App.

— Austin 2001) , aff ’ d , 92 S.W.3d 5 31 (Tex. Crim. App. 2002)

. If the trial court allows a previously undisc losed State ’ s witness t o te st i fy, appellate cour ts r eview t hat decision for an abuse of discretion. Martinez v. State , 867 S.W.2d 30, 39 (Tex. Crim. App. 19 93); Hardin v.
State , 20 S .W.3d 84, 88 (Tex. App.

— Texarkana 2000, pet. ref ’ d). In determining whet her t he
trial court abu s ed it s discretion, we co ns i d er ( 1) whether the St ate ’ s action constituted bad faith and (2) whether the defendant could have reasonab ly anticipated that the undisclosed witness would testify. See Nobles v. State , 8 43 S.W.2d 503, 514

– 15 (Tex. Crim. App. 1 9 92) ; H ardin , 20
S.W

. 3d a t 8 8

. In a letter dated September 6, 2019, Smith formally requested discovery under Article
39.14 of the Texa s Code of Criminal Proc edure. On March 29, 2021, Smith filed a motion for discovery seeking , in part , “the names, address e s a nd professions o f all e x p ert witnesses” the
S tate intended to call at trial. On July 1, 2021 , eleven days prior to jury selection , the trial court

6 Article 39.14 (b) o f th e Texas Code of Crimina l Procedure stat es: On a party’s r e q ue s t mad e not l ater than the 30th day befor e the date that jury selectio n in the trial is scheduled to begin or, in a trial with out a jury, the present atio n of evidence is scheduled to be gin, th e party receiving the req uest shall discl ose to the requesti n g p a rty t he name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 7 05, Texas Ru les of Evid ence
. Except as otherwise prov ided by th is s ubsection, the disclosu re must be made in writing in hard c o py form or by e lectronic means not later th an the 20th day before the da te that jury selection in the trial is scheduled to begi n or, in a tr ial withou t a jury, the presentation of e viden ce is s ch eduled to begin. On mo tion of a party and on not ice to th e ot h er pa rties, the court may order an earli er time at which one or more of the other parties must make the disclosure to the req uesting party.
T EX

. C OD E C R IM

. P ROC

. A NN

. a rt

. 39.14( b)

.13 granted Smith’s motion for discover y and ordered the State to comp ly wi th the request

. 7 O n the same day , th e S ta te dis c l osed its list of witn esses , which included Gruszecki

. Smith claimed not
to have received Grus z ecki’s cu rriculum vit ae until July 9, just three days prior to trial.
Smith contends that the State’s dis closu re was not timely under Article 3 9 .1 4( b ) b eca use
t he State failed to di sclose its witnesses at least twenty days before trial

. Smith also argues that
“the State’s fa ilure to timely provide notice should be presumed as bad faith given that there wa s

no innocent explanation offered by t h e S tat e. ” Ye t , t he record reflects t hat the State’s file in the

case , which included Gruszecki’s curric ulum vitae, had been availab le to Smith throughout the case, that the State had “offered repeatedly” to let Smith look through the file, and that the S t at e

ma de i ts w i t ness disclosure on th e same day the trial court signed the discovery order. S ee Osbourn , 59 S .W.3d at 816 (evidence should be admitted unless the State acted in bad faith o r willfully failed to respon d to the trial court ’ s order under A rt icl e 39 .1 4 ( b ))

. In addition, t he
evidence supports the trial court’s finding that S mith could have reaso nably anticipated that
Grusz ecki would testify to the manner and means of Thomas’s death

. See Branum v. State , 5 35
S. W.3d 217, 226 (Tex. App.

— Fort Worth 2 017 , n o pe t

. )

. E ven though the autops y was conducted by Adams, Gruszecki signe d off on the autopsy r eport, which Smith had obtai ned on September 25, 2019. See Lemasuier v. State , 91 S.W.3d 897, 900

– 01 (Tex. App.

— Fort Worth

7 We no te t hat no court order is necessary to trig ger the St ate’s dis c l os u re o bligati on s under Article 39.14(b)

. Indeed, in 2015, the Legisla ture amended A rticle 39.14(b) to require a party receiving a request for disclos ure of expert witne sses to pro vid e t he in fo rm ation to the requestin g party based on the reques t alone w i t ho u t an order from the trial court. See A ct of May 22, 2015, 84th Leg. , R.S., ch. 459, § 1, 2015 Tex. Gen. Laws 1774 , 1774 (current version at T EX

. C O DE C RIM

. P ROC

. art. 39.14 (b)). The ame nd me nt became effective Sept ember 1, 2015

. S ee Act of May 22, 2 0 1 5, 84 th Leg. , R.S., ch. 459, § 3, 2015 T ex. Gen. Laws 1774 , 1774

.14 2002, pet. ref ’ d) (noting pros e cut or ’ s op e n file and witness ’ s name in the report in the State ’ s file )

. A s a result, we cannot con clude that the trial court abused its discretion in allowing
Gru szecki to testify regarding Thomas’s autopsy

. Moreo ver, even though Smith argued that he

w as un f airl y s urprised by the untimely disc losure , he failed to request a continuance, rendering
any error on the part of the tr ial court harmless. See Barnes v. State , 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (per curiam)

. Accordingly, we overrule th i s p o in t of e r r or. IV. Autopsy Pho tographs Were Not Hearsay In his third point of error, Smith argu es that the trial court shou ld have sustained his hearsay objection to the autopsy photographs because Adams , rath er th an Gruszecki , took the photo s
. Th i s Co u r t rev i e w s a trial court’s admi ssion of evidence for an abuse of discretion.
Ramos v. State , 2 45 S.W.3d 410, 417

– 18 (Tex. Crim. App. 2008). A trial court is given wide discretion when deciding admissibility o f pho tographs. Sonnier v. State , 913 S. W

. 2d 5 1 1 , 51 8 ( Tex. Crim. App. 1995)

. An abus e of discretion exists when the trial court ’ s ruling fa lls outside
the zone of reas onable disagreement. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. C ri m. App. 1990).
Dur ing the Stat e ’s direct examination o f Gr us z ecki , t he State sought to admit nine
p hotographs of Thomas’s body t hat were taken during the autopsy. Smith objected to the photo s , arguing that , because Gruszecki did not take them, they wer e inadmi ss ible h earsa y
. The trial
court overruled Smith ’ s ob je c tion a n d admitt ed the photos into evide nce. Gruszecki testified15 tha t , in the normal course o f bu siness at American Foren sics , everyone broug ht in for
examination was assigned a “unique case ide nt ifying n umber ” an d that the same such number

was on b o th th e aut o p s y report and the photos , indicati ng that they were all part of the same case

. She tes tified that such records were kept in the normal course o f business, that the photos had not
been al te red , and that they accurately depicted what was stated in th e autop s y report. The nine photos i nclude pictures of the t wo slugs recovered from Thoma s’s body and rather clo se - up images of where the slugs e ntered and exited Thomas’s body. She testified to wh at each of th e pho tos depicted and any conclusions t h at sh e drew f r o m them. Generally, hearsay is inadmis sible at trial. See T EX

. R. E VID

. 80 2. Hearsay is a n out

- of

co urt statement made by a third party that a witness is offering into evidence for the trut h of the

m atter asserted. T EX

. R. E VID

. 801 (d). For t h e re to b e hearsay, there must be a “ statement.” See
T EX

. R. E VID . 801(c) , (d)

. A state ment is de fined as “a person’s oral or written verbal expression, or nonverbal conduct that a person intended as a subst itute for verbal expression.”
T EX

. R. E V I D

. 80 1 ( a). P h o tographs, like the autopsy photo graph s at issue here , are g enerally not hearsa y because they are not statement s
. See H errera , 367 S.W.3d at 773; Wood , 299 S.W.3d at
214

– 15 ; see also Black v. State , 358 S.W.3 d 823, 831 (Tex . App.

— Fort Worth 201 2, pet. ref ’ d). 8
Here , as there w a s no indication that the autopsy photographs were “inte nded as a substitute for verbal expressio n,” the trial court was within its discretion to determine that the autopsy photographs w er e not st ateme nts and , therefor e , n ot hearsay. See T EX

. R. E VID . 8 0 1 ( a) ; Herrera ,

8 A photograph might contain statements amounting to hearsay. See Black , 358 S.W.3d at 831 ( photo of a cell phone sc r een depic ti ng messages); see also Willover v. State , 70 S.W.3d 841, 847 ( Te x
. Crim. A pp. 2002) (“Inadmissible hea rsay testimony does not becom e admissible simply because it is contained within an admissible document or transc ript .” ).16 367 S.W.3d at 773 ; Wood , 299 S.W.3d at 214

– 15

. As a result , the trial court was w ithin its discretion to overrule Smith’s objection. W e , therefore, overrule Smith’s third p oint of error
. V. Admitting E x tra ne o us - Offense Evidence W as Harmless
In h i s fourth point of error, Smith ar gue s that the trial court erred i n admitting evidence
that he had previously assaulted his girlfriend, Terra Long , because (1) the State failed t o provide
proper pretrial notic e und er R u le 4 04(b) o f the Texas Rules of Evidence that it i ntended t o introduce such evidence , and (2) Long’ s testimony did not open the door to allow the evidence to be admitted.
A. No Pretrial Notice Was Required Under Rule 404(b), if the State intends to in t r od uce , du r ing its case

- in

- chief, evidence of

a n ext raneous o f f ense or ot her bad act , the State must pro vide the defense with “reasonable
notice before trial .” T EX

. R. E VID

. 404(b). However , the State introduced the evidence of assault
in rebuttal , du ri n g i ts cros s - exa mination of Long, who was a defense w itness. “ T he State i s not required to provide pretrial noti ce of extr aneous - offense evidence offered in rebuttal. ” Gullatt v.
State , 5 90 S.W.3d 20, 26 (Tex. App.

— Texarkana 2019 , pet . ref ’ d ) (citi n g J au b ert v. St at e , 74
S .W.3d 1, 4 (T ex. Crim. A pp. 2002) )

. B. Ad m i tting Long ’s Testimony , if Erroneous, W as Harmless Error
O n dire ct examination by Smith, Long testified that, at times, Thomas was an unwanted houseguest of Smith’s . But Long also testi f ied a s follows: Q. And was [T ho mas] a room mate of P rentis [Smith ] , o r was he l ike an unwelcome guest, or how would you classify his sit uation?17 A. Prentis had

-- he was homeless, and Prentis felt sorry for him and let him stay there. He had nowhere to s t ay. Q

. And, now, would Prenti s someti mes g ive F redd y a ri de to t ow n ?
A. Yes. He took care of him. Shortly thereafter, a hearing w as held outside the presence of the jury . T he State argued that Long’s testimony created a false impression of Smith’s ch a rac te r

— that Smith was a kind
p er son to othe rs
. Acco rding to the St a t e, such te stimony opened the door to correct that impression by introducing evidence that Smi th was not always kind, such as in 2015 when he physically assaulted Long and “sent her to th e ho sp i tal.” The trial court a gr eed wi th th e Sta te

a nd ove rrule d Sm i t h’s object ion, and the jury returned to the courtroom.
When the S tate cross

- examined Long, she testified that Smith ’ s taking care of Thomas
was “kind

- hearted

. ” That said, Long also st a ted t h at Smith had not always been so kind , such as the i n cident in 2 015 when h e physically assaulted her in front of her child, leaving her with two black eyes and resulting in a trip to the hospital. Smith argues that Long’s testimony did not open the d o or a n d that , therefore , the trial

cour t erre d i n admitti n g t he e xt r a neous - offe nse evidence. We review a trial court’s ruling on the
admissib ility of extran eous offenses under an abuse of discretion standard. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Cr im

. App. 2009) ; Hernandez v. State , 35 1 S. W.3 d 156, 16 0 (T ex. Ap p
. — Texarkana 2011, pet. ref ’ d). If the trial court’s decision is within th e zone of reaso nable disagreement, the trial court has not abused its discretion, and we will uphold the trial cou r t’ s

r uling. De La Paz , 279 S.W.3d at 34 3

– 44 ; H er nandez , 351 . S. W. 3 d at 160. The trial court’s18 evidentiary ruling will not be disturbed if i t is correct on any theory of law applicable to that ruling. De La Paz , 279 S.W.3d at 343

– 44; Hernandez , 351 S.W. 3 d at 160

– 61.
E xtraneous

- offense evidence may be a dmitted t o re bu t a defensive theory that is raised during the defense’s case

- in

- chief. See De La Paz , 279 S.W.3d at 345

– 46; Rubio v. State , 607 S.W.2d 498, 501 (Tex. Crim. App. 1980). I f the testimony of a d ef e nse w itness creates a false impression on di rect exa minatio n, i t can open t he door for the State to correct that false impression on cro ss - examination through the introduction of extraneous

- offense evidence. See
Duren v. State , 87 S.W.3d 719, 730

– 31 (T ex
. Ap p.

— Texark ana 2002 , pet. struck ); s ee al so Lopez v . State , 9 2 8 S.W.2d 5 28, 530

– 32 (Tex

. Crim. App. 1996).
Even assuming , without fi nding, that t he trial court erred in admitting the extraneous

offense evidence, the error was harmless. To determ i ne w h et he r the erroneous admission of
evi dence amounts to revers ib l e error, we look to Rule 4 4.2(b) of the Texas Rule s of Appellate
Procedure , governing non - constitutional error in criminal cases. See T EX

. R. A PP

. P. 44.2(b). Neither appellant nor the S t at e b ea rs “ the burden to demonstrate whet her a p pellant wa s harme d
b y the trial court ’ s error
. ” See Johnson v. State , 43 S.W.3d 1, 5 (Tex. Cr im. App. 200 1). Rather,
it is this C ourt ’ s responsibility to assess, from the context of the error, whe th er the j u dg m e n t requires reversal because the erro r aff e cted appel lant ’ s su b s tantial ri ghts. See i d

. “ A substantial right is affected when the error had a subst antial and injurious effect or influence on the jury ’ s verdict. ” King v. State , 953 S.W.2d 2 66, 271 ( T ex
. C rim. App. 1997) (citing Kotteakos v. Unit e d
States , 328 U.S

. 7 5 0, 776 (19 46)). In makin g this determination, we review the record as a
whole. Kott eakos v. United States , 328 U.S. 750, 764

– 65 ( 1946)

. While we may c on sider19 whether there is overwhelm i ng e v idence of Smith ’ s guilt, we are to c onsid e r the tria l court ’ s

e rroneous a dmission of the extraneous

- offense eviden ce in the context of t he entire r ecord. See
Motilla v. State , 78 S.W.3d 352, 358 (Tex. Crim. App. 2 00 2).
There is ample evidence suppo r ti ng Smith’s guilt. When the officers a rrive d at his hou se, Smi th w as agitate d and incoherent , and he said that he was “high as hell

. ” A lth ough no ill egal drugs were found in the house, Smith’s blood tested positive f or methamphetamine

. Prior to any

co n fr on t ation with Thomas, Smith’s text me ssage s s how ed that he was p l a nning a vi olent confrontation, as the messages indicated that Smith was “real s care d , ” that Smith believed there was a gun in Thomas’s backpack , and that S mith was “going for the backpack

. ” S m ith told the
officers that , before c onfro n ting Thoma s, he h ad p ut on his “fighting attire” because he was preparing for the “worst situati on. ” Thomas died by homicide with two gunshot wounds to the head and neck ca us ing his
death. Thomas’s body wa s f ou n d with a gun near him, and he had a crack pipe in hi s hand

. S m ith admitt ed several times that night that he had sho t Thomas. Smith told McK nig ht that he “[m]ore than likely ” s hot Thomas

. According to Cason, Smith sa id , “I shot, I shot, I asked him

to s t ay down, and I shot low

. ” Smith als o sai d he shot T homas a ga i n because T homas was still “talking shit.” Carl Beaty worked for the Marion C ounty Jail at the time of the shooting. After Smith was transported to the ja il, Beaty made an incident repo r t re l ated to Smith. The report was
admit ted i n to evidenc e durin g t h e trial. The report stated that , while being transport ed to C

- Tank
where he w ould be housed, Smith made hand motions to the other prisoners, “as if he was u sing20 a gun towards someone.” O nc e S mith was placed in C

- Tank, Beaty “cl early heard the inmates

a s k him what he was in there for, and [Smith] state d murde r, and when asked who h e had killed, he stated Freddy [Thomas].”
While Smith admitted that he shot T homas, he claimed to have done so i n self

- defense or by accident. Smith clai m ed that Th omas ha d l u nged at hi m, wrestled with him, and pushed and fought him. Smith maintained t hat , during the scuffle, the gun fell to the floor, but he did not
know where it ha d come from. Smith explai n ed t h at he shot Thomas, trying to incapacitat e him , becau se he w as i n fear for his life , but that he did not want to kill anyone

. Y et , Smith fail ed to

co nvey any of that information to the officers who spoke with him after the shoo ti ng. The extraneous

- o f fe ns e evidence was barely a p art of the trial. T he St ate spent ve r y little
ti me questioning Long about the extraneous offense and d id not mentio n it at a ll during its closing arguments. See Russell v. State , 113 S.W.3d 530, 550

– 51 ( Tex. App.

— Fort Worth 2 00 3, pet. ref ’ d ) (admission of extraneous

- offen s e evi denc e harmf ul , in part, b ecause State spent
substantial amount of time proving it up and re ferred to it several times during closing argument); Booker v. State , 103 S.W.3d 52 1, 538 (Tex. App.

— Forth Wort h 2 00 3 , pet. ref’d) (op. on reh’g). Due to Smit h ’s cl aims , the j ur y was instru cted regarding self

- defense and negligence

. Also, in a ddition to murder and acquittal , they were given the opportunity to find Smith guilty of
the le ss er - included offenses of m a ns la u ghter and criminally negligent homicide.
Con sider ing not o n l y the subs tantial evidence of Smith’s guilt, but also the context of the

en tire case ag ainst Smith, the jury charge, and the parties’ arguments, and assuming error, w e nevertheless hold t h at t h e trial court’s admission of the extraneou s - o ffens e evidenc e d i d not21 adve rsely influence the jury or had only a slight effect. See Motil la , 78 S.W.3d at 359. Thus , we disregard any error as harmless. See T EX

. R. A PP

. P. 44.2 (b ). Accordingly, we o v er ru l e this point of error.
VI. Allowing Peyto n t o T es ti fy W as N o t Error
In his fifth point of error, Smith argues that the trial c ourt erred by allowin g Sheryl Peyton, a forensic scientist with the DPS’s crime laboratory, t o testify regarding Smith’s b l oo d

t ests because the State failed to lay a s uf fic ient pr edicate s h o wing that the blood sample tested

was actually drawn from Smith o n the day of the shoo ting.
We review a trial court ’ s ruling on the admissibility of eviden ce under an abuse of
discretio n s ta n dard. See Druery v. State , 225 S.W.3d 4 91 , 5 03 (Tex

. Crim. A p p
. 2007). To establish the facts necessary to support the trial c ourt ’ s decision to ad mit the results of a blood test into evidence, “a proper chain of custo dy of the blood sample that wa s d ra w n from the
accused and later tested mus t b e establis hed.” Pe n l ey v. Stat e , 2 S.W.3d 534, 537 (Tex. App.

— Texarkana 1999 , pet. r ef ’ d ); Durre tt v. Stat e , 36 S.W.3d 205, 20 8 (Tex. App.

— Houston [14th Dist.] 2001, no pet.). In the absence of any evidence of t a mpering or alteration, “[p]roof of the beg i nning and end of a c hain of cu stody will support the admission of the evidence[.]” Dossett
v. S tate , 216 S.W.3d 7, 17 (Tex. A pp.

— San Antonio 2006, pet. ref ’ d); see also Stoke r v. State , 788 S.W.2d 1, 10 (Te x
. Cr i m. App. 1989) , overruled on other grou nds b y Horton v. Cali fo r n ia , 496 U. S. 128 (1990) ; Durrett , 36 S.W.3d at 208. Generally, in such cases, gaps o r theoretical breaches that may exist in the chain of custody “ go to the weight of the evidence rather th an to its admissibility. ” Durrett , 36 S. W.3d at 208; s ee also L a grone v. St ate , 942 S.W.2d 602, 61722 (Tex. Crim. App. 1 997). Where the evidence before the jury allow s the jury to reasonably find
that the test at iss ue was performed on blood draw n from t he a c cused, the evidentiary requireme nts n eed ed to auth enticate t h e test be ing offered into evidence are satisfied. See T EX

. R. E VID . 901(a); Dossett , 216 S.W.3d at 17. On the second day of trial, during the State’s c ase - in

- chief, the State brought a mot i on i n limine to exclude all reference s t o the S tate’s f ailure t o i n troduce evidence related to Smith’s
blood

- test resul ts . The State argued that the de signated lab scientist on the State’s witness list was unexpectedl y unava ilable , and Smith had objected to a substitute witness , Sheryl Peyton , b e cau se she was not on th e State’s witness list

. Specifically, t he motion soug ht an order requiring Smith to “re frain from mentioning or referring to in any way the following ” : 1

. That the State has failed to provi d e an y witnesses to testify with regard to the b lood tes t result s o f the def endant.
2. That the State has failed to pro vide the results or lab report for the blood draw of the defendant.
3. That the State failed to pro v ide lab test results regarding the b lo od draw of the Defendant because such re sul ts do not support th e i r conten tion that the Defendant was under the influe nce of a drug, controlled substance or illicit substance or other intoxicant.
4. Any reference or i n ference to the blood draw or blood d ra w r esults or lab report of same. The tr ial c ourt gra nted the m o t ion and held that , if Smith wanted to reference , in any way, the
State’s failure to intr oduce blood test results , the trial court would “tell the State to call the
witness .” Smith affirme d t ha t , a f ter consultation with counsel, he wo uld “go al ong with t h e limine and

. . . the State would not be allowed to ha ve their witness come and te stify.” The trial23 court c lear ly stated, “ [W] e can’t hedge on th is issue

. . . if you bring it up, I’m goi n g to te ll th e State to have the witness here.” Smith’s counsel sa id he un derstood and acknowledged that the
court’s rul ing meant that he was “ being basically ordered by the Cour t not to bring that up” or else Peyton could testify. Smith, himse lf, confir m ed t h at he ha d heard the court’s ruling.
E ven so , la ter in t h e t r ial t hat same day, Smith testified on direct examin ation that he had not ingested “any drugs the ev ening or that morning” before the confr ont ation with Thomas . O n

cross - exam ina tion, he s ai d th at he “didn’t use drugs in those days” and had n ot taken a ny drugs
for “maybe a week” before the shooting.
In r ebuttal, t he State called Peyton to testify regar ding Smith’s blood test results. Smith objected, arguing that there had be en no predic a te tes timon y about the blood draw itself, th e submissi on of th e bl o od to the crime laboratory, or the blood’s chain of custody. Over Smith’s predicate and Confrontatio n Clause objection s , the toxicology report was admitted into evidence , and Pey ton testi f ie d th at sh e tested a sample of blood from S mith that was subm i t te d by t he Marion County Sheriff’s Off ice for case numb er 180156

. The testing revealed 0.26 mil l igrams of methamphetamine per liter of blood and less than 0.05 milligrams of amphetamine per l it e r of
blood

. The contents of the toxicolog y report s upport P ey to n ’s te stimony. The to xicology report

states that the sample was submitted by the Marion County Sheriff’s Office u nder identifying
case number 180156 , on July 9, 2018, by Robert Davis , who d el i vered the sample in p erson. The report l ists Smith as the su bj e ct of th e sample , and the evidence is described in part as “ [b] lo od in (2) gray top tubes labeled ‘Pr entis Smith. ’”24 In Peyton’s opinion, Smith had to have ingested methamphetamine recen t l y b ecause the
hal f

- lif e of m ethamphetamine

— t he time it takes f or h a lf of it to be out of the body

— was between ten and fourteen hour s
. So, if Smith had not ingested methamphetamine in the week prior to the shooting, there should not have be en any present i n h i s blo od sample. Depe ndin g on how much me thamphetam ine was ta ke n , she expecte d it would take a day or two for “all of it to be gone fr om the blood.” While Peyton performed the toxico logy t ests on Smith ’ s blood, s he
admitted on cross

- examination that s h e d id no t draw the blood fro m Smith and that her
invol vement o nl y b egan after the blo od sample reached the lab in Austin. After Peyton’s tes timony concluded, the State offered into evide nce , and the trial court admitted over Smith’s objections, the a ff i d av i t for s ear ch w arrant f o r Smi th’s blood si gned by
Mc Knight, th e e xecut ed s earch w arrant , and the search warrant return and inventory stating tha t “[s]pecimen s of [Smith’s] blood” were seize d

. T he affidavit of Intha Vaughan , which stat ed that
she was t h e r e gistered n urs e who drew Smi th’s blood on May 7, 201 8, at 4: 51 p
. m. , w as also
offere d and admitted into evidence. Here, there is sufficient evi dence to establish the beginning and the end of the chain of custody for Smith’s blood. Charles Rogers, a c r im i nal inve sti gat or with the M arion County
S her iff’s O ffice, t oo k S mith to the hospit al because that was “standard procedur e if someone is
under t he influence.” T he warrant ordered a medical wo rker to take samples of Smith’s blood, to take those samples i n t he pres enc e o f a law enfor cement officer, and to “ d eliver t he s a id sa mples
to the said law enforcement officer.” Vaughan’s affidavit states th at she is a registered nurse, who, on May 7, 2018, at 4:51 p .m., “withdrew a blood specimen from

. . . Prent i s E a rl Smit h II25 . . . using re liable procedur es as reco gnized b y th e scie ntific commun ity in the State of Texas .”
The affidavit also states that t he “specimen was properly labeled and sealed.” The warrant return and inventory confirm that th e wa rra nt wa s ex e cuted a nd that the designa ted la w enforce ment offic er recei ve d “ [s]pe cimen s of the suspect’s bl ood.” 9 Pe yton’s testimony established the end
of the chain of cus tody, as she stated that the blood tested w as Smi th’s

. The toxicology report also verifie d th a t (1) the blood tested belonged to Smith , and (2) t he liste d of f ense occurred on
the sa me day as the shooting.
Bec ause there is proof of the beginning and end of the c ha in of custody , and no evidence of tampering, the evidence is sufficient to suppo r t a d mission of Peyton’s test imony. See St oke r , 788 S.W .2d at 1 0 ; D u rrett , 36 S.W .3d at 208

. Any gaps or breaches in the chain of custody “ go
t o t he weight of the evi dence rather than to its admissibility. ” Durrett , 36 S. W.3d at 208; see also Lagrone , 9 4 2 S

. W.2d at 617

. Th us , the trial court did n ot err in admittin g Pe y ton’s testimony because the evidence submitted by the State was adequate for th e jury to reasonably
find that the blood tested by Peyton was drawn from Smi th on the day of the shooting. S e e T EX

. R. E VID . 901(a); Dos sett , 216 S.W.3d at 17. As a resul t , w e over rule this point of error.
VII. Peyton’s Testimony Did N ot Violate the Con frontation Clause
In his f inal point of error, Smith argues that allowing Pe yton to te stify that the blood s h e
t e sted was Smith’s violate d his rights und e r t he C onf rontatio n C l a use
. 10

9 A lthough the affidavit , w arran t, a nd inve ntory w ere adm itted over Smith’s objection s , we mus t co n sider them as evidence because he do es not cha llenge their admis sion on appeal

.
10 T he legal standards for a Confront ation Clause analysis are detailed abov e.26 As detailed above, over Smith’s objection, Peyton testified , and the admitted toxicol ogy

re port corroborated, that she personally tested a bl ood sample labe led “Pr entis Smi th,” th a t i t was submitted by the Marion Coun ty S heri ff’s Offic e , that th e “ subje ct of that blood kit was Prentis Earl Smith, II,” and that the sam ple “was submitted” with a listed case number of 180156

. Smith
argues that , because Pey ton neither drew Smit h’s blo o d n o r witnessed it bei ng drawn , his ri ghts

un der the Co nfrontat io n C lause were violated because he was “deprived of an opportunity to

cross - examine the witness es who might establish that the blood that Peyton t ested actually
be longed to [Smith].” This ar g u me n t is without merit

. Here, the Conf ront ati on Clause was not im pl i cated because Peyton did not testify to

an other’s out

- of

- court statem ent

. See Woodall , 3 36 S.W. 3d at 642 . Peyton testified that her
involvement in and knowledge of the case did not begi n un t i l th e labeled sample arrived at the
lab. On cross

- examina ti on , she admitted that she did not draw the blood sample, witness it bein g drawn, know when it w as draw n, or know who drew it. Mo st imp ortantly, she di d not testify to any statement made by t h e p e rson who dr e w the sa mple and likewise di d not test ify that t he sampl e she tested was the same sample drawn from Smith on the day of the shooting. Because Peyton only testified to matters within h er personal know ledge acquired from having wor ked in

t h e l a b, the Confrontation C lause was not impl icated. Se e i d

. ; Ca ma ch o v. State , Nos. 2

- 07

- 322

- CR & 2

- 07

- 323

- CR , 2009 WL 2356885, at *3 (Te x. App.

— Fort Worth July 30, 20 09, pet. ref ’ d ) (per curiam) (mem. op., not desig nated for p ublication) (Sixth Amend men t co n cerns did not apply to chemist ’ s in

- cour t statement based up on h e r own personal knowledge acquired from27 having trained and worked at t he DPS laboratory) ; 11 Bl aylock v . State , 259 S.W.3d 202, 207

– 08 (Tex. App.

— Texar kana 2008, pet. ref ’ d) (holdi ng th at t e s ti m ony of the expert witn ess concerning the chemical a nalysis o f th e substance, which was determined by applying his expertise to reliab le scientific test data, was ad m issible as he was subject to cross

- examination, so the requ irements of the Co nfron tati o n C l ause were fulfilled)

. Therefore, we ove rrule Smith ’s
sixth po in t of error

. VIII. Conclus ion
We a ffirm the trial court’s judgment.

Scott E. Stevens Justice
Dat e Subm itte d: March 3, 2022 Date Deci ded: June 7 , 2022
Do Not Publish

11 “Al though unpublished o pinio ns h ave no precedential value, we may take guidance f rom them ‘ a s a n aid in developing reasoning that may be employ ed.’ ” Rhymes v. State , 536 S.W.3d 85, 99 n.9 (Tex. App.

— Texa rkana 2 0 1 7, pet. ref ’ d) (quoting Ca rrillo v. Sta t e , 98 S.W.3d 789, 794 (Te x . App.

— Amarillo 2003, pet. ref ’ d) ).