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 

Before Morriss, C.J., Stevens and van Cleef, JJ.

Memorandum Opinion by Justice Stevens
2

MEMORANDUM OPINION

A Marion County jury found Prentis Earl Smith II guilty of the murder of Freddy 

Thomas. Following the jury’s recommendation, the trial court sentenced 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 violation of the Confrontation Clause, (2) allowing the 

State’s forensic medical expert to testify despite 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) overruling Smith’s Confrontation Clause objection to the testimony of the State’s 

toxicologist. 

Because we find that (1) the forensic expert’s testimony did not violate the Confrontation 

Clause, (2) the trial court did not abuse its discretion in allowing the untimely disclosed witness 

to testify, (3) the autopsy photographs were not hearsay, (4) even if erroneous, admission of 

evidence of an extraneous offense was harmless error, (5) allowing the toxicology expert to

testify was not error, and (6) the toxicology expert’s testimony did not implicate the 

Confrontation Clause, we affirm the trial court’s judgment.

I. Background

On May 7, 2018, Pamela Goynes called the Marion County Sheriff’s Department several 

times, asking them to perform a welfare check on her husband, Smith, because she believed that 

he might be sick. Sheriff David McKnight and an ambulance arrived at Smith’s home to check 

on him. McKnight testified that, at the time, Smith seemed agitated, annoyed, and incoherent. 
3

Smith told McKnight that “Freddy” was in his house and that he had a gun. McKnight 

believed “Freddy” to be one of Smith’s known acquaintances, Freddy Thomas. McKnight and 

Deputy Frank Cason entered and searched the house, finding a handgun, a large pool of blood, 

and an overturned sofa that was partially on top of Thomas’s body. The gun was located “fairly 

near” to Thomas. Upon realizing that Thomas was still alive, he was transported to a hospital. 

Even so, Thomas died three days later. 

McKnight read Smith his Miranda1 warnings and asked him about the events leading up 

to the shooting. Smith told McKnight that someone was putting drugs in his milk and the well 

water on his property. Smith also mentioned that Thomas had been trying to sell him a Taurus 

.380 handgun, the same gun found in the house. 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, “More than likely I did.” 

When the police found Thomas in Smith’s house, he had both the gun and a knife near 

him, and he had a crack 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 dangerous 

because it causes “[p]aranoia, agitation, . . . 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 Miranda v. Arizona, 384 U.S. 436 (1966).

2

McKnight testified about the various interactions he had had with Thomas in the past. He said Thomas was a man 

that could “pick a fight,” as he was “cankerous” and “assaultive” in nature. From McKnight’s experience, Thomas 

had “probably” threatened people in the past, and if he had threatened to kill others, it would not be a surprise to 

McKnight. Cason also confirmed that he had prior interactions with Thomas. He believed that Thomas could be 

difficult to deal with at times. Cason testified that it was possible that Thomas could 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 he did remember seeing

the gun and remembered 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 how many times he had shot the gun, 

Smith said, “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 once more and then did not “remember anything else.” Cason 

testified that there was some coagulation of the blood found on the floor 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 later obtained text messages from Goynes’s phone regarding a conversation 

between her and Smith. The conversation occurred 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 scared,” that he could not 

“let nobody hurt the house,” and that “[Thomas had] got all [his] knives.” The texts also 

revealed that Smith knew there was a gun in Thomas’s backpack. In one text, Smith said, “I’m 

going for the backpack.” 

The recordings from the police body cameras confirmed that Smith was jittery and

speaking quickly and that he said he was very thirsty. Due to Smith’s speech and behavior, 

Cason believed that Smith was under the influence of “methamphetamine, amphetamine, or 

speed.” Although Smith told McKnight that there was a bag of methamphetamine in the house, a 

search failed to find any illegal drugs. Smith said he was “high as hell” and felt as if he had 
5

ingested PCP, so McKnight instructed one of his deputies to have Smith’s blood drawn for a 

drug test. 

Several witnesses testified that Smith had a history of making bizarre statements and that 

he had made several that day while the police were there. Sheila Stokes, a jail captain for the 

Marion County Sheriff’s Office, testified that, in the months leading up to the May 7 shooting, 

the sheriff’s office received multiple disturbing phone calls from Smith, falsely claiming that 

people were in and around his home trying to kill him. Smith also accused Goynes and others of 

being out to get him, and he had threatened to commit suicide. The dispatched officers and 

emergency personnel repeatedly found Smith “excited,” “[c]onfused,” and “paranoid.”3

Dr. Amy Gruszecki, a forensic pathologist with American Forensics in Mesquite, Texas, 

testified that, on May 11, 2018, an autopsy was performed on Thomas. The 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 could not determine which shot occurred first. 

Due to the lack of stippling on Thomas’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-examination, Gruszecki admitted that she could not determine whether 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 independent expert opinion, 

3

Cason testified that Smith told him that all the knives had been removed from his house and that a bat had been 

taken as well. Nonetheless, Cason found a block of knives in the kitchen and saw a bat hanging over the fireplace. 

Similarly, Deputy Robert Davis, who was processing the scene, testified that Smith made several odd statements, 

including that Goynes was trying to “overdose” him, that Goynes was poisoning his milk, and that Goynes had sent 

a dog to the house to bark. 
6

she would expect any crack to have been completely metabolized between ingesting it on May 7

and Thomas’s death on May 10. 

Christi Cheng, a forensic scientist for the Texas Department of Public Safety’s (DPS) 

crime laboratory, testified that she had conducted a DNA analysis on the handgun, its magazine, 

and swabs of the blood-stained area of the living room. She was unable to make any DNA 

comparisons from the handgun or magazine because there were five different DNA traces on it,

but she testified that the DNA swabs from blood in the living room matched Thomas. 

Smith, testifying in his own defense, admitted to being diagnosed with schizoaffective 

disorder and to taking several medications to manage his mental health. Smith also testified that

he had been previously convicted of several crimes, including simple assault, burglary of a 

building, driving while intoxicated, and evading arrest. 

Smith explained that Thomas had been living at his house for a while. Smith spent weeks 

trying to get Thomas to leave. At some point, Smith would drive Thomas into town and drop 

him off. But, within a short period of time, Thomas would show up again, knocking on his door. 

It was around that time that Smith voluntarily checked himself into the Department of Veterans

Affairs clinic because he was suffering from delusions. 

A few days 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 said he was put 

“on edge” when Thomas claimed to be the perpetrator of the murder. Thomas was also trying to 

get Smith to purchase a gun from him even though Smith said he had a rule that no firearms were 
7

allowed in his house because he was a convicted felon. Smith said that he planned to purchase 

the gun so he could throw it “across the bushes” to get it away from his house. 

As was Thomas’s pattern, he returned to Smith’s house on May 6. On his mother’s 

advice, Smith called the police, spoke with Tonya Hulett, and informed her that Thomas had a 

gun. Even so, no deputies ever came to Smith’s house. That night, Thomas went into Smith’s 

room “over and over again,” asking him if he wanted a hit of marihuana. Smith testified that he 

did not ingest any drugs that night or during the following morning. Because Thomas was acting 

crazy, Smith 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 testimony, Smith explained that he and Thomas were sitting on different 

sofas, facing one another, and that the backpack containing the gun was sitting on a wheelchair 

across the coffee table from Thomas. Smith “wanted [his] house back,” but when he asked 

Thomas to leave, Thomas laughed at him. Smith testified that Thomas lunged “across the 

table . . . to get his bag.” Smith then “came up across the table . . . into [Thomas],” trying to 

“wrap him up.” The two men collided, and the gun fell to the floor. Smith claimed that he had 

“no idea where the gun came from.” Smith also stated that he was afraid for his life. 

As they both wrestled for the gun, Smith grabbed it. Then Thomas pushed him, and the 

gun went off once. Smith said he then fired the gun again, aiming low, trying to “shoot him in 

the leg or something.” Smith believed that he had shot Thomas in the leg with the second shot, 

and he asked Thomas “to stay down.” Instead, Thomas got up and “[kept] coming” after Smith, 

so he pointed the gun at Thomas and fired twice more. Smith claimed that he had not intended to 
8

kill Thomas. He then threw the gun down, got into his car, left the house, and texted Goynes to 

tell her to call the police because they “won’t respond to [his] request for help.” Smith was 

asked if he had ever denied shooting Thomas, and he said, “No, I always tell I did it.” 

II. Gruszecki’s Testimony Did Not Violate the Confrontation Clause

In his first point of error, Smith argues that allowing Gruszecki to present expert 

testimony violated his rights under the Confrontation Clause because her testimony was based on 

an autopsy that she did not perform and an autopsy report that she did not prepare.

The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against 

him.” U.S. CONST. amend. VI. “[T]o implicate the Confrontation Clause, an out-of-court 

statement must (1) have been made by a witness absent from trial and (2) be testimonial in 

nature.” Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (citing Crawford v. 

Washington, 541 U.S. 36, 50–52, 59 (2004)). We employ a de novo review in determining 

“whether a statement is testimonial or non-testimonial.” Wall v. State, 184 S.W.3d 730, 742 

(Tex. Crim. App. 2006). A statement is “testimonial” when circumstances objectively indicate it 

was taken for the primary purpose of “establish[ing] or prov[ing] past events potentially relevant 

to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). “A document

created solely for an ‘evidentiary purpose[]’ . . . made in aid of a police investigation . . . ranks as 

testimonial.” Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011). Once the two Crawford

conditions have been met and the Confrontation Clause has been implicated, testimonial hearsay 
9

is admissible only where “(1) the declarant is unavailable and (2) the defendant had a prior 

opportunity to cross-examine the declarant.” Woodall, 336 S.W.3d at 642.

At trial, Smith objected to Gruszecki’s testimony, arguing, in part, that it violated his

rights under the Confrontation Clause because he was being denied the opportunity to crossexamine Dr. Denika Adams, the person who performed the autopsy and prepared the autopsy 

report. The trial court overruled his objection. On appeal, Smith relies primarily on MelendezDiaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming in support of his contention that the 

trial court erred in overruling his objection concerning the admission of an unavailable witness’s 

testimonial out-of-court statement. But Smith’s cited cases are not directly on point. Both 

Melendez-Diaz and Bullcoming involved forensic reports that were admitted into evidence at 

trial. That was not the case here.

The facts of this case are more like those of Moore v. State, where the trial court allowed 

Dyer, a forensic pathologist, to testify even though her testimony was based on an autopsy that

she did not perform and histological slides and photographs that she did not prepare. Moore v. 

State, 553 S.W.3d 119, 122–23 (Tex. App.—Texarkana 2018, pet. ref’d). We held that Dyer’s 

testimony did not violate the Confrontation Clause because neither the autopsy report nor the 

slides were offered into evidence; the photographs were nontestimonial in nature;

4 Dyer 

“reached an independent conclusion based on her review of the autopsy report, photographs, and 

4

Autopsy photographs are nontestimonial in nature for the purposes of the Confrontation Clause. See TEX. R. EVID.

801(a); Herrera v. State, 367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (autopsy photograph 

is a nontestimonial statement); Wood v. State, 299 S.W.3d 200, 214–15 (Tex. App.—Austin 2009, pet. ref’d).
10

slides”; and she was cross-examined regarding her conclusions, the documents she reviewed, and 

her interpretation of the photographs and slides. Id. at 123–24.

Likewise, in this case, Gruszecki testified that the other forensic pathologist with 

American Forensics, Adams, actually performed the autopsy and prepared the autopsy report and 

its photographs. Although she signed off on the report, Gruszecki admitted that she did not 

supervise the autopsy or sign off on the autopsy report as the supervisor. She testified that,

because the American Forensics office was a “very small practice” and they both had the 

requisite medical training and expertise, she and Adams regularly “checked each other” and 

performed a “quality assurance[]” process by reviewing autopsy reports, autopsy photographs, 

and all the other autopsy-related information before signing off on each other’s work. In 

preparation for her testimony, Gruszecki reviewed everything that Adams would have had to 

review, including the autopsy report, the photographs, Thomas’s medical records, the police

“paperwork” sent with Thomas’s body, and the reports from her office’s “certified investigator” 

who interviewed family and law enforcement 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 explained

that, based on the autopsy report, the photographs, and the other related 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 fired from a gun that was an 
11

intermediate or middle distance from his body, while Thomas and/or the person firing the gun 

could have been moving.5 The autopsy report was not offered or admitted into evidence.

Rather than being a surrogate witness proffering an explanation of another person’s

testimonial evidence, the record reflects that Gruszecki reached independent conclusions based 

not only on her review of the autopsy report, but also photographs and other autopsy-related 

information. See Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015); Moore, 

553 S.W.3d at 123–24. Moreover, as in Moore, Smith was able to cross-examine Gruszecki 

regarding her conclusions and the documents she reviewed and elicited testimony that (1) she 

was unable to determine which of the two wounds was suffered first, (2) she was unable to 

determine which of the gunshots caused Thomas’s death, and (3) Thomas’s gunshot wounds 

could have been caused during a “scuffle” with Smith. See Moore, 553 S.W.3d at 123–24. 

Based on the foregoing, we are persuaded that Gruszecki’s testimony did not violate the 

Confrontation Clause, and we overrule this point of error. 

III. Allowing Untimely Disclosed Expert Witness to Testify Was Not Error

In his second point of error, Smith argues that the trial court erred in allowing 

Gruszecki’s testimony 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 the expert witnesses 

it intends to call at trial, and unless otherwise ordered by the court, the State must make this 

5

Gruszecki testified that Thomas’s manner of death was “homicide” and explained that, in forensics, there are only 

five manners of death: natural, accidental, suicidal, homicidal, and undetermined. She explained the differences 

between them and why she found Thomas’s death to be a homicide.
12

disclosure “not later than the 20th day before the date that jury selection in the trial is scheduled

to begin.”6 TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (Supp.); Hightower v. State, 629 S.W.2d 

920, 925 (Tex. Crim. App. [Panel Op.] 1981); Osbourn v. State, 59 S.W.3d 809, 816 (Tex.

App.—Austin 2001), aff’d, 92 S.W.3d 531 (Tex. Crim. App. 2002). If the trial court allows a

previously undisclosed State’s witness to testify, appellate courts review that decision for an 

abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Hardin v. 

State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d). In determining whether the 

trial court abused its discretion, we consider (1) whether the State’s action constituted bad faith

and (2) whether the defendant could have reasonably anticipated that the undisclosed witness 

would testify. See Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992); Hardin, 20 

S.W.3d at 88.

In a letter dated September 6, 2019, Smith formally requested discovery under Article 

39.14 of the Texas Code of Criminal Procedure. On March 29, 2021, Smith filed a motion for

discovery seeking, in part, “the names, addresses and professions of all expert witnesses” the 

State intended to call at trial. On July 1, 2021, eleven days prior to jury selection, the trial court 

6

Article 39.14(b) of the Texas Code of Criminal Procedure states:

On a party’s request made not later than the 30th day before the date that jury selection in the trial 

is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to 

begin, the party receiving the request shall disclose to the requesting party the name and address of 

each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 

705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure 

must be made in writing in hard copy form or by electronic means not later than the 20th day 

before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the 

presentation of evidence is scheduled to begin. On motion of a party and on notice to the other 

parties, the court may order an earlier time at which one or more of the other parties must make 

the disclosure to the requesting party.

TEX. CODE CRIM. PROC. ANN. art. 39.14(b).
13

granted Smith’s motion for discovery and ordered the State to comply with the request.

7 On the 

same day, the State disclosed its list of witnesses, which included Gruszecki. Smith claimed not 

to have received Gruszecki’s curriculum vitae until July 9, just three days prior to trial. 

Smith contends that the State’s disclosure was not timely under Article 39.14(b) because

the State failed to disclose its witnesses at least twenty days before trial. Smith also argues that 

“the State’s failure to timely provide notice should be presumed as bad faith given that there was 

no innocent explanation offered by the State.” Yet, the record reflects that the State’s file in the 

case, which included Gruszecki’s curriculum vitae, had been available to Smith throughout the 

case, that the State had “offered repeatedly” to let Smith look through the file, and that the State

made its witness disclosure on the same day the trial court signed the discovery order. See 

Osbourn, 59 S.W.3d at 816 (evidence should be admitted unless the State acted in bad faith or 

willfully failed to respond to the trial court’s order under Article 39.14(b)). In addition, the 

evidence supports the trial court’s finding that Smith could have reasonably anticipated that 

Gruszecki would testify to the manner and means of Thomas’s death. See Branum v. State, 535 

S.W.3d 217, 226 (Tex. App.—Fort Worth 2017, no pet.). Even though the autopsy was 

conducted by Adams, Gruszecki signed off on the autopsy report, which Smith had obtained on 

September 25, 2019. See Lemasuier v. State, 91 S.W.3d 897, 900–01 (Tex. App.—Fort Worth 

7

We note that no court order is necessary to trigger the State’s disclosure obligations under Article 39.14(b). Indeed, 

in 2015, the Legislature amended Article 39.14(b) to require a party receiving a request for disclosure of expert 

witnesses to provide the information to the requesting party based on the request alone without an order from the 

trial court. See Act of May 22, 2015, 84th Leg., R.S., ch. 459, § 1, 2015 Tex. Gen. Laws 1774, 1774 (current 

version at TEX. CODE CRIM. PROC. art. 39.14(b)). The amendment became effective September 1, 2015. See Act of 

May 22, 2015, 84th Leg., R.S., ch. 459, § 3, 2015 Tex. Gen. Laws 1774, 1774.
14

2002, pet. ref’d) (noting prosecutor’s open file and witness’s name in the report in the State’s 

file). 

As a result, we cannot conclude that the trial court abused its discretion in allowing 

Gruszecki to testify regarding Thomas’s autopsy. Moreover, even though Smith argued that he

was unfairly surprised by the untimely disclosure, he failed to request a continuance, rendering 

any error on the part of the trial court harmless. See Barnes v. State, 876 S.W.2d 316, 328 (Tex. 

Crim. App. 1994) (per curiam). Accordingly, we overrule this point of error. 

IV. Autopsy Photographs Were Not Hearsay

In his third point of error, Smith argues that the trial court should have sustained his 

hearsay objection to the autopsy photographs because Adams, rather than Gruszecki, took the 

photos. 

This Court reviews a trial court’s admission of evidence for an abuse of discretion. 

Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). A trial court is given wide 

discretion when deciding admissibility of photographs. Sonnier v. State, 913 S.W.2d 511, 518

(Tex. Crim. App. 1995). An abuse of discretion exists when the trial court’s ruling falls outside 

the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990).

During the State’s direct examination of Gruszecki, the State sought to admit nine 

photographs of Thomas’s body that were taken during the autopsy. Smith objected to the photos, 

arguing that, because Gruszecki did not take them, they were inadmissible hearsay. The trial 

court overruled Smith’s objection and admitted the photos into evidence. Gruszecki testified 
15

that, in the normal course of business at American Forensics, everyone brought in for 

examination was assigned a “unique case identifying number” and that the same such number 

was on both the autopsy report and the photos, indicating that they were all part of the same case. 

She testified that such records were kept in the normal course of business, that the photos had not 

been altered, and that they accurately depicted what was stated in the autopsy report. The nine 

photos include pictures of the two slugs recovered from Thomas’s body and rather close-up 

images of where the slugs entered and exited Thomas’s body. She testified to what each of the 

photos depicted and any conclusions that she drew from them. 

Generally, hearsay is inadmissible at trial. See TEX. R. EVID. 802. Hearsay is an out-ofcourt statement made by a third party that a witness is offering into evidence for the truth of the 

matter asserted. TEX. R. EVID. 801(d). For there to be hearsay, there must be a “statement.” See

TEX. R. EVID. 801(c), (d). A statement is defined as “a person’s oral or written verbal 

expression, or nonverbal conduct that a person intended as a substitute for verbal expression.” 

TEX. R. EVID. 801(a). Photographs, like the autopsy photographs at issue here, are generally not 

hearsay because they are not statements. See Herrera, 367 S.W.3d at 773; Wood, 299 S.W.3d at

214–15; see also Black v. State, 358 S.W.3d 823, 831 (Tex. App.—Fort Worth 2012, pet. ref’d).8

 

Here, as there was no indication that the autopsy photographs were “intended as a substitute for 

verbal expression,” the trial court was within its discretion to determine that the autopsy 

photographs were not statements and, therefore, not hearsay. See TEX. R. EVID. 801(a); Herrera,

8

A photograph might contain statements amounting to hearsay. See Black, 358 S.W.3d at 831 (photo of a cell phone 

screen depicting messages); see also Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002) (“Inadmissible 

hearsay testimony does not become admissible simply because it is contained within an admissible document or 

transcript.”).
16

367 S.W.3d at 773; Wood, 299 S.W.3d at 214–15. As a result, the trial court was within its 

discretion to overrule Smith’s objection. We, therefore, overrule Smith’s third point of error. 

V. Admitting Extraneous-Offense Evidence Was Harmless

In his fourth point of error, Smith argues that the trial court erred in admitting evidence 

that he had previously assaulted his girlfriend, Terra Long, because (1) the State failed to provide 

proper pretrial notice under Rule 404(b) of the Texas Rules of Evidence that it intended to

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 introduce, during its case-in-chief, evidence of 

an extraneous offense or other bad act, the State must provide the defense with “reasonable 

notice before trial.” TEX. R. EVID. 404(b). However, the State introduced the evidence of assault 

in rebuttal, during its cross-examination of Long, who was a defense witness. “The State is not 

required to provide pretrial notice of extraneous-offense evidence offered in rebuttal.” Gullatt v. 

State, 590 S.W.3d 20, 26 (Tex. App.—Texarkana 2019, pet. ref’d) (citing Jaubert v. State, 74 

S.W.3d 1, 4 (Tex. Crim. App. 2002)).

B. Admitting Long’s Testimony, if Erroneous, Was Harmless Error

On direct examination by Smith, Long testified that, at times, Thomas was an unwanted 

houseguest of Smith’s. But Long also testified as follows: 

Q. And was [Thomas] a roommate of Prentis [Smith], or was he like

an unwelcome guest, or how would you classify his situation?
17

A. Prentis had -- he was homeless, and Prentis felt sorry for him and 

let him stay there. He had nowhere to stay.

Q. And, now, would Prentis sometimes give Freddy a ride to town?

A. Yes. He took care of him.

Shortly thereafter, a hearing was held outside the presence of the jury. The State argued 

that Long’s testimony created a false impression of Smith’s character—that Smith was a kind 

person to others. According to the State, such testimony opened the door to correct that 

impression by introducing evidence that Smith was not always kind, such as in 2015 when he 

physically assaulted Long and “sent her to the hospital.” The trial court agreed with the State

and overruled Smith’s objection, and the jury returned to the courtroom. 

When the State cross-examined Long, she testified that Smith’s taking care of Thomas 

was “kind-hearted.” That said, Long also stated that Smith had not always been so kind, such as 

the incident in 2015 when he 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 door and that, therefore, the trial 

court erred in admitting the extraneous-offense evidence. We review a trial court’s ruling on the 

admissibility of extraneous offenses under an abuse of discretion standard. De La Paz v. State, 

279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Hernandez v. State, 351 S.W.3d 156, 160 (Tex. 

App.—Texarkana 2011, pet. ref’d). If the trial court’s decision is within the zone of reasonable 

disagreement, the trial court has not abused its discretion, and we will uphold the trial court’s 

ruling. De La Paz, 279 S.W.3d at 343–44; Hernandez, 351. S.W.3d at 160. The trial court’s 
18

evidentiary ruling will not be disturbed if it 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.3d at 160–61.

Extraneous-offense evidence may be admitted to rebut 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). If the testimony of a defense witness creates a false 

impression on direct examination, it can open the door for the State to correct that false 

impression on cross-examination through the introduction of extraneous-offense evidence. See 

Duren v. State, 87 S.W.3d 719, 730–31 (Tex. App.—Texarkana 2002, pet. struck); see also

Lopez v. State, 928 S.W.2d 528, 530–32 (Tex. Crim. App. 1996). 

Even assuming, without finding, that the trial court erred in admitting the extraneousoffense evidence, the error was harmless. To determine whether the erroneous admission of 

evidence amounts to reversible error, we look to Rule 44.2(b) of the Texas Rules of Appellate 

Procedure, governing non-constitutional error in criminal cases. See TEX. R. APP. P. 44.2(b). 

Neither appellant nor the State bears “the burden to demonstrate whether appellant was harmed 

by the trial court’s error.” See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Rather, 

it is this Court’s responsibility to assess, from the context of the error, whether the judgment 

requires reversal because the error affected appellant’s substantial rights. See id. “A substantial 

right is affected when the error had a substantial and injurious effect or influence on the jury’s 

verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United 

States, 328 U.S. 750, 776 (1946)). In making this determination, we review the record as a 

whole. Kotteakos v. United States, 328 U.S. 750, 764–65 (1946). While we may consider 
19

whether there is overwhelming evidence of Smith’s guilt, we are to consider the trial court’s

erroneous admission of the extraneous-offense evidence in the context of the entire record. See 

Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002).

There is ample evidence supporting Smith’s guilt. When the officers arrived at his house, 

Smith was agitated and incoherent, and he said that he was “high as hell.” Although no illegal 

drugs were found in the house, Smith’s blood tested positive for methamphetamine. Prior to any 

confrontation with Thomas, Smith’s text messages showed that he was planning a violent 

confrontation, as the messages indicated that Smith was “real scared,” that Smith believed there 

was a gun in Thomas’s backpack, and that Smith was “going for the backpack.” Smith told the 

officers that, before confronting Thomas, he had put on his “fighting attire” because he was 

preparing for the “worst situation.” 

Thomas died by homicide with two gunshot wounds to the head and neck causing his 

death. Thomas’s body was found with a gun near him, and he had a crack pipe in his hand. 

Smith admitted several times that night that he had shot Thomas. Smith told McKnight that he

“[m]ore than likely” shot Thomas. According to Cason, Smith said, “I shot, I shot, I asked him

to stay down, and I shot low.” Smith also said he shot Thomas again because Thomas was still 

“talking shit.” 

Carl Beaty worked for the Marion County Jail at the time of the shooting. After Smith 

was transported to the jail, Beaty made an incident report related to Smith. The report was 

admitted into evidence during the trial. The report stated that, while being transported to C-Tank 

where he would be housed, Smith made hand motions to the other prisoners, “as if he was using 
20

a gun towards someone.” Once Smith was placed in C-Tank, Beaty “clearly heard the inmates

ask him what he was in there for, and [Smith] stated murder, and when asked who he had killed, 

he stated Freddy [Thomas].” 

While Smith admitted that he shot Thomas, he claimed to have done so in self-defense or 

by accident. Smith claimed that Thomas had lunged at him, wrestled with him, and pushed and 

fought him. Smith maintained that, during the scuffle, the gun fell to the floor, but he did not 

know where it had come from. Smith explained that he shot Thomas, trying to incapacitate him, 

because he was in fear for his life, but that he did not want to kill anyone. Yet, Smith failed to 

convey any of that information to the officers who spoke with him after the shooting. 

The extraneous-offense evidence was barely a part of the trial. The State spent very little 

time questioning Long about the extraneous offense and did not mention it at all during its 

closing arguments. See Russell v. State, 113 S.W.3d 530, 550–51 (Tex. App.—Fort Worth 2003,

pet. ref’d) (admission of extraneous-offense evidence harmful, in part, because State spent 

substantial amount of time proving it up and referred to it several times during closing 

argument); Booker v. State, 103 S.W.3d 521, 538 (Tex. App.—Forth Worth 2003, pet. ref’d) (op. 

on reh’g). Due to Smith’s claims, the jury was instructed regarding self-defense and negligence.

Also, in addition to murder and acquittal, they were given the opportunity to find Smith guilty of 

the lesser-included offenses of manslaughter and criminally negligent homicide. 

Considering not only the substantial evidence of Smith’s guilt, but also the context of the 

entire case against Smith, the jury charge, and the parties’ arguments, and assuming error, we 

nevertheless hold that the trial court’s admission of the extraneous-offense evidence did not 
21

adversely influence the jury or had only a slight effect. See Motilla, 78 S.W.3d at 359. Thus, we 

disregard any error as harmless. See TEX. R. APP. P. 44.2(b). Accordingly, we overrule this 

point of error. 

VI. Allowing Peyton to Testify Was Not Error

In his fifth point of error, Smith argues that the trial court erred by allowing Sheryl 

Peyton, a forensic scientist with the DPS’s crime laboratory, to testify regarding Smith’s blood 

tests because the State failed to lay a sufficient predicate showing that the blood sample tested 

was actually drawn from Smith on the day of the shooting. 

We review a trial court’s ruling on the admissibility of evidence under an abuse of 

discretion standard. See Druery v. State, 225 S.W.3d 491, 503 (Tex. Crim. App. 2007). To 

establish the facts necessary to support the trial court’s decision to admit the results of a blood 

test into evidence, “a proper chain of custody of the blood sample that was drawn from the 

accused and later tested must be established.” Penley v. State, 2 S.W.3d 534, 537 (Tex. App.—

Texarkana 1999, pet. ref’d); Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.—Houston [14th 

Dist.] 2001, no pet.). In the absence of any evidence of tampering or alteration, “[p]roof of the

beginning and end of a chain of custody will support the admission of the evidence[.]” Dossett 

v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref’d); see also Stoker v. State, 

788 S.W.2d 1, 10 (Tex. Crim. App. 1989), overruled on other grounds by Horton v. California, 

496 U.S. 128 (1990); Durrett, 36 S.W.3d at 208. Generally, in such cases, gaps or theoretical 

breaches that may exist in the chain of custody “go to the weight of the evidence rather than to 

its admissibility.” Durrett, 36 S.W.3d at 208; see also Lagrone v. State, 942 S.W.2d 602, 617 
22

(Tex. Crim. App. 1997). Where the evidence before the jury allows the jury to reasonably find 

that the test at issue was performed on blood drawn from the accused, the evidentiary 

requirements needed to authenticate the test being offered into evidence are satisfied. See TEX.

R. EVID. 901(a); Dossett, 216 S.W.3d at 17.

On the second day of trial, during the State’s case-in-chief, the State brought a motion in

limine to exclude all references to the State’s failure to introduce evidence related to Smith’s 

blood-test results. The State argued that the designated lab scientist on the State’s witness list 

was unexpectedly unavailable, and Smith had objected to a substitute witness, Sheryl Peyton, 

because she was not on the State’s witness list. Specifically, the motion sought an order 

requiring Smith to “refrain from mentioning or referring to in any way the following”:

1. That the State has failed to provide any witnesses to testify with regard to 

the blood test results of the defendant.

2. That the State has failed to provide the results or lab report for the blood 

draw of the defendant.

3. That the State failed to provide lab test results regarding the blood draw of 

the Defendant because such results do not support their contention that the 

Defendant was under the influence of a drug, controlled substance or illicit 

substance or other intoxicant.

4. Any reference or inference to the blood draw or blood draw results or lab 

report of same.

The trial court granted the motion and held that, if Smith wanted to reference, in any way, the 

State’s failure to introduce blood test results, the trial court would “tell the State to call the 

witness.” Smith affirmed that, after consultation with counsel, he would “go along with the

limine and . . . the State would not be allowed to have their witness come and testify.” The trial 
23

court clearly stated, “[W]e can’t hedge on this issue . . . if you bring it up, I’m going to tell the 

State to have the witness here.” Smith’s counsel said he understood and acknowledged that the 

court’s ruling meant that he was “being basically ordered by the Court not to bring that up” or 

else Peyton could testify. Smith, himself, confirmed that he had heard the court’s ruling. 

Even so, later in the trial that same day, Smith testified on direct examination that he had 

not ingested “any drugs the evening or that morning” before the confrontation with Thomas. On 

cross-examination, he said that he “didn’t use drugs in those days” and had not taken any drugs

for “maybe a week” before the shooting.

In rebuttal, the State called Peyton to testify regarding Smith’s blood test results. Smith 

objected, arguing that there had been no predicate testimony about the blood draw itself, the 

submission of the blood to the crime laboratory, or the blood’s chain of custody. Over Smith’s 

predicate and Confrontation Clause objections, the toxicology report was admitted into evidence,

and Peyton testified that she tested a sample of blood from Smith that was submitted by the 

Marion County Sheriff’s Office for case number 180156. The testing revealed 0.26 milligrams 

of methamphetamine per liter of blood and less than 0.05 milligrams of amphetamine per liter of 

blood.

The contents of the toxicology report support Peyton’s testimony. The toxicology report 

states that the sample was submitted by the Marion County Sheriff’s Office under identifying 

case number 180156, on July 9, 2018, by Robert Davis, who delivered the sample in person. The 

report lists Smith as the subject of the sample, and the evidence is described in part as “[b]lood in 

(2) gray top tubes labeled ‘Prentis Smith.’” 
24

In Peyton’s opinion, Smith had to have ingested methamphetamine recently because the 

half-life of methamphetamine—the time it takes for half of it to be out of the body—was

between ten and fourteen hours. So, if Smith had not ingested methamphetamine in the week 

prior to the shooting, there should not have been any present in his blood sample. Depending on 

how much methamphetamine was taken, she expected it would take a day or two for “all of it to 

be gone from the blood.” While Peyton performed the toxicology tests on Smith’s blood, she 

admitted on cross-examination that she did not draw the blood from Smith and that her 

involvement only began after the blood sample reached the lab in Austin. 

After Peyton’s testimony concluded, the State offered into evidence, and the trial court 

admitted over Smith’s objections, the affidavit for search warrant for Smith’s blood signed by 

McKnight, the executed search warrant, and the search warrant return and inventory stating that 

“[s]pecimens of [Smith’s] blood” were seized. The affidavit of Intha Vaughan, which stated that 

she was the registered nurse who drew Smith’s blood on May 7, 2018, at 4:51 p.m., was also 

offered and admitted into evidence. 

Here, there is sufficient evidence to establish the beginning and the end of the chain of 

custody for Smith’s blood. Charles Rogers, a criminal investigator with the Marion County 

Sheriff’s Office, took Smith to the hospital because that was “standard procedure if someone is 

under the influence.” The warrant ordered a medical worker to take samples of Smith’s blood, to 

take those samples in the presence of a law enforcement officer, and to “deliver the said samples 

to the said law enforcement officer.” Vaughan’s affidavit states that she is a registered nurse, 

who, on May 7, 2018, at 4:51 p.m., “withdrew a blood specimen from . . . Prentis Earl Smith II
25

. . . using reliable procedures as recognized by the scientific community in the State of Texas.” 

The affidavit also states that the “specimen was properly labeled and sealed.” The warrant return 

and inventory confirm that the warrant was executed and that the designated law enforcement 

officer received “[s]pecimens of the suspect’s blood.”9 Peyton’s testimony established the end 

of the chain of custody, as she stated that the blood tested was Smith’s. The toxicology report

also verified that (1) the blood tested belonged to Smith, and (2) the listed offense occurred on 

the same day as the shooting. 

Because there is proof of the beginning and end of the chain of custody, and no evidence 

of tampering, the evidence is sufficient to support admission of Peyton’s testimony. See Stoker, 

788 S.W.2d at 10; Durrett, 36 S.W.3d at 208. Any gaps or breaches in the chain of custody “go 

to the weight of the evidence rather than to its admissibility.” Durrett, 36 S.W.3d at 208; see 

also Lagrone, 942 S.W.2d at 617. Thus, the trial court did not err in admitting Peyton’s

testimony because the evidence submitted by the State was adequate for the jury to reasonably

find that the blood tested by Peyton was drawn from Smith on the day of the shooting. See TEX.

R. EVID. 901(a); Dossett, 216 S.W.3d at 17. As a result, we overrule this point of error. 

VII. Peyton’s Testimony Did Not Violate the Confrontation Clause

In his final point of error, Smith argues that allowing Peyton to testify that the blood she

tested was Smith’s violated his rights under the Confrontation Clause.

10 

9

Although the affidavit, warrant, and inventory were admitted over Smith’s objections, we must consider them as 

evidence because he does not challenge their admission on appeal. 

10The legal standards for a Confrontation Clause analysis are detailed above.
26

As detailed above, over Smith’s objection, Peyton testified, and the admitted toxicology 

report corroborated, that she personally tested a blood sample labeled “Prentis Smith,” that it was 

submitted by the Marion County Sheriff’s Office, that the “subject of that blood kit was Prentis 

Earl Smith, II,” and that the sample “was submitted” with a listed case number of 180156. Smith 

argues that, because Peyton neither drew Smith’s blood nor witnessed it being drawn, his rights

under the Confrontation Clause were violated because he was “deprived of an opportunity to 

cross-examine the witnesses who might establish that the blood that Peyton tested actually 

belonged to [Smith].” This argument is without merit.

Here, the Confrontation Clause was not implicated because Peyton did not testify to 

another’s out-of-court statement. See Woodall, 336 S.W.3d at 642. Peyton testified that her 

involvement in and knowledge of the case did not begin until the labeled sample arrived at the 

lab. On cross-examination, she admitted that she did not draw the blood sample, witness it being 

drawn, know when it was drawn, or know who drew it. Most importantly, she did not testify to 

any statement made by the person who drew the sample and likewise did not testify that the

sample she tested was the same sample drawn from Smith on the day of the shooting. Because 

Peyton only testified to matters within her personal knowledge acquired from having worked in 

the lab, the Confrontation Clause was not implicated. See id.; Camacho v. State, Nos. 2-07-322-

CR & 2-07-323-CR, 2009 WL 2356885, at *3 (Tex. App.—Fort Worth July 30, 2009, pet. ref’d) 

(per curiam) (mem. op., not designated for publication) (Sixth Amendment concerns did not 

apply to chemist’s in-court statement based upon her own personal knowledge acquired from 
27

having trained and worked at the DPS laboratory);

11 Blaylock v. State, 259 S.W.3d 202, 207–08 

(Tex. App.—Texarkana 2008, pet. ref’d) (holding that testimony of the expert witness 

concerning the chemical analysis of the substance, which was determined by applying his 

expertise to reliable scientific test data, was admissible as he was subject to cross-examination, 

so the requirements of the Confrontation Clause were fulfilled). Therefore, we overrule Smith’s 

sixth point of error.

VIII. Conclusion

We affirm the trial court’s judgment. 

Scott E. Stevens

Justice

Date Submitted: March 3, 2022

Date Decided: June 7, 2022

Do Not Publish

11“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in 

developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana

2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).