PD-1498-15 

IN THE TEXAS COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

TONY ESCOBAR 

Defendant - Appellant 

vs. 

THE STATE OF TEXAS 

Plaintiff - Appellee 

Appellant's Petition for Discretionary Review 

On Petition for Discretionary Review from the First Court of Appeals 

No: 01-14-00593-CR 

3 3 8th District Court 

Cause Number: 1344348 

Wayne T. Hill 

Texas Bar No: 09656300 

4615 Southwest Freeway, Suite 600 

Houston, Texas 77027 

Phone: (713) 623-8312 I Fax: (713) 626-0182 

wthlaw@aol.com 

Oral argument is not requested 

PD-1498-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/28/2015 1:57:28 PM

Accepted 12/28/2015 2:29:38 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL 

Presiding Judge 

Honorable A. Reagan Clark 

Sitting by Assignment 

338th District Court 

1201 Franklin, 15th Floor 

Houston, Texas 77002 

Attorneys for the State 

At trial 

Justin K. Wood 

Julie Fletcher 

Assistant District Attorneys 

1201 Franklin 

Houston, Texas 77002 

On Appeal 

Heather Hudson 

Assistant District Attorney 

1201 Franklin, 61

h Floor 

Houston, Texas 77002 

Attorneys for Appellant 

At trial 

Sam Adamo 

Sam Adamo, Jr. 

3200 Travis, 4th Floor 

Houston, Texas 77006 

On Appeal 

Wayne T. Hill 

4615 Southwest Freeway, Suite 600 

Houston, Texas 77027 

Appellant 

Tony Escobar 

1 
TABLE OF CONTENTS 

Identity of Parties and Counsel 

Table of Contents 

Index of Authorities 

Statement Regarding Oral Argument 

Statement of the Case 

Statement of Procedural History 

Reasons for Granting Review 

Summary of Appellant's Position on PDR 

Appellant's First Claim for Review & Argument 

Appellant's Second Claim for Review & Argument 

Appellant's Third Claim for Review & Argument 

Prayer for Relief 

Certificate of Service 

Word Count Compliance 

Opinion from First Court of Appeals 

11 

1 

11 

111 

lV 

lV 

lV 

1 

1 

2 

6 

9 

11 

12 

12 

Appendix "A" 
INDEX OF AUTHORITIES 

CONSTITUTIONS 

Sixth Amendment - U.S. Constitution 

Fourteenth Amendment - U.S. Constitution 

STATUTES I RULES 

Texas Rules of Evidence 102 

Texas Rules of Evidence 

Texas Rules of Evidence 107 

Texas Rules of Evidence 406 

Texas Rules ofEvidence 801(e)(2)(E) 

Texas Rules of Appellate Procedure 33.1 

Texas Rules of Appellate Procedure 44.2(a) 

Texas Rules of Appellate Procedure 44.2(b) 

CASELAW 

Anderson v. State 

Buchanan v. State 

Coleman v. State 

Davis v. Alaska 

Delaware v. Van Arsdall 

Hammer v. State 

Hernandez v. State 

Holmes v. South Carolina 

Jordan v. State 

Keeter v. State 

King v. State 

Miller v. State 

Tillman v. State 

Vela v. State 

Virts v. State 

Walters v. State 

111 

3,5 

8 

10 

10 

7,8 

9,10,11 

7,8 

10 

5,6,8 

5,6,9 

10 

9 

2 

3 

4 

4 

6 

8 

4 

11 

7 

10 

4 

5 

3 

8 
STATEMENT REGARDING ORAL ARGUMENT 

Oral argument is not requested. 

STATEMENT OF THE CASE 

Appellant was tried for capital murder in the death ofRussell Lopez . The jury 

found Appellant guilty of capital murder as alleged in the indictment. Appellant's 

punishment was automatically set at life in prison. 

STATEMENT OF PROCEDURAL HISTORY 

Appellant appealed to the First Court of Appeals. On October 29, 2015, 

the First Court of Appeals issued its Opinion affirming Appellant's conviction 

A copy of the Opinion is attached as Appendix "A" 

This Court granted Appellant's Motion for Extension of Time to File Petition 

for Discretionary Review until December 30, 2015. 

IV 
REASONS FOR GRANTING REVIEW 

1. The Court of Appeals decision conflicts with the decision of another 

Court of Appeals on the same issue. 

2. The Court of Appeals has decided an important question of state or 

federal law in a way that conflicts with the applicable decisions of the Court 

of Criminal Appeals or the Supreme Court of the United States. 

3. The Court of Appeals has so far departed from the accepted and usual 

course of judicial proceedings, or so far sanctioned such a departure by a 

lower court, as to call for the exercise of the power of supervision by the 

Court of Criminal Appeals. 

SUMMARY OF APPELLANT'S POSITION 

ON PETITION FOR DISCRETIONARY REVIEW 

Appellant brings forward several complaints concerning the Court of Appeals 

disposition of Points of Error raised on original submission. The complaints focus on 

the limitation of cross examination and the exclusion of evidence, all of which 

concerned the State's star witness, Amber Thornton, who was originally charged with 

capital murder, but later received a plea bargain deal which reduced her charge to 

aggravated robbery and made her eligible for probation at sentencing. As the State's 

star witness, it was essential that Appellant be allowed to explore all matters touching 

on Thornton's role as a witness. 

1 
APPELLANT'S FIRST CLAIM FOR REVIEW 

IS THE SIXTH AMENDMENT RIGHT TO CROSS EXAMINE COMPROMISED WHEN THE 

COURT PLACES LIMITS ON THE QUESTIONING OF ANEXPERT WITNESS CONCERNING 

POSSIBLE INFLUENCES AND MOTIVES FOR A PROSECUTION WITNESS TO FABRICATE 

A STORY. 

ARGUMENT IN SUPPORT OF APPELLANT'S CLAIM FOR REVIEW 

The State of Texas prosecuted three individuals as a result of the killing of 

Russell Lopez. Appellant, Joseph Facundo and Amber Thornton were charged with 

capital murder. The State alleged that the aggravating factor which made the case a 

capital murder was that the killing of Lopez was done during the commission or 

attempted commission of the robbery of Lopez. The State of Texas made a deal with 

Amber Thornton to secure her testimony against Appellant. The State's reliance on 

Thornton was absolutely essential to its efforts to show that robbery and murder had 

been previously discussed and planned by the individuals, and that the plan was carried 

out by Appellant and Facundo. 

During his cross examination ofhomicide investigator Clopton, Appellant asked 

Clopton for his professional opinion whether taking capital murder off the table and 

offering aggravated robbery and possible probation could influence or be a motive to 

fabricate a story. (R-V-12) The State's objection to speculation and relevance was 

sustained by the trial court. The trial court's ruling was upheld by the Court of Appeals. 

In Coleman v. State, 545 SW2d 831 (Tex. Crim. App. 1977), this Court noted that 

animus, motive, or ill-will of a prosecuting witness who testifies against the defendant 

2 
is never a collateral or irrelevant inquiry, and the defendant may show by himself, or 

by others if necessary, why the witness is unfriendly toward him. The reasoning behind 

this rule is simply that great latitude should be allowed the accused in showing any fact 

which would tend to establish ill feeling, bias, motive and animus upon the part of any 

witness testifying against him. The right to cross examine a testifying state witness 

extends to any matter that could reflect on the witness's credibility. The trial judge 

should allow the accused great latitude to show any relevant fact that might tend to 

affect the witness's credibility. Virts v. State, 739 SW2d 25 (Tex. Crim. App.1987). 

Appellant's jury was not afforded that opportunity. 

The Court of Appeals held that because there was some evidence that Thornton's 

capital murder charge was reduced to aggravated robbery (making her eligible for 

probation) it sufficed to afford Appellant his Sixth Amendment right to cross 

examination. The favorable treatment afforded the trial court's ruling limiting 

Appellant's cross examination of Clopton is contrary to the Sixth Amendment which 

guarantees the right of an accused in a criminal prosecution to be confronted with the 

witnesses against him. Davis v. Alaska, 415 U.S. 308 (1974) The Sixth Amendment 

right to confront witnesses includes the right to cross examine witnesses, to attack their 

general credibility or to show their possible bias, self-interest, or motives in testifying. 

As the Supreme Court noted in Davis, there is an important distinction between an 

attack on the general credibility of a witness and a more particular attack on the 

3 
credibility that reveals possible biases, prejudices, or ulterior motives of the witness as 

they may relate directly to the issues or personalities in the case at hand. Thus, under 

Davis, the exposure of a witness' motivation in testifying is a proper and important 

function of the constitutionally protected right of cross examination. A defendant's 

Confrontation Clause rights are satisfied when defense counsel is permitted to expose 

to the jury the facts from which jurors ... could appropriately draw inferences relating 

to the reliability of the witness. Hammer v. State, 296 SW3d 555 (Tex. Crim. App. 

2009) 

The Court of Appeals opinion cited Delaware v. Van Arsdall, 475 U.S. 673 

(1986) for the proposition that limits can be placed on cross examination. The record 

will reveal that the cross examination of detective Clopton did not involve issues of 

harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that 

was repetitive or only marginally relevant, so Arsdall is not controlling. Clopton, a 

twenty-three year police veteran with nine years experience as a homicide investigator, 

was uniquely qualified to answer questions surrounding what could influence or 

motivate a prosecution witness to fabricate a story. There was no challenge by the 

State concerning Clopton's qualifications as an expert. Jordan v. State, 928 SW2d 

550 (Tex. Crim. App. 1996); Tillman v. State, 354 SW3d 425 (Tex. Crim. App. 

2011). A witness is qualified to testify as an expert if the witness has sufficient 

background ...... in a particular field that goes to the very matter on which the witness 

4 
is to give an opinion. The focus is on the "fit" between the subject matter at issue and 

the expert's familiarity therewith. Vela v. State, 209 SW3d 128 (Tex. Crim. App. 

2006) The importance of Thornton's State-sponsored testimony was clear - she 

provided "first-hand" inside information to establish the elements of capital murder. 

Her testimony was used by the State to refute Appellant's position that he did not 

anticipate that a robbery or a killing would take place. By virtue of Thornton's 

importance as a State's witness, it was essential that the court not limit Appellant's 

Sixth Amendment right to cross examine Clopton as it did. The jury should have 

been allowed to hear what had transpired between Clopton and Thornton which could 

have influenced or motivated her into providing the testimony she did against 

Appellant. A full and fair cross examination of Clopton was essential to the jury's 

evaluation of Thornton and her trial testimony which differed from her previous 

rendition of the facts. Appellant submits that the Court of Appeals incorrectly 

concluded that he was not denied his Sixth Amendment right of cross examination. 

Although the Court of Appeals' opinion upheld the limitation placed on 

Appellant's cross examination of Clopton, it nonetheless evaluated how the purported 

error was harmless. Appellant submits the Court of Appeals erred when it applied Rule 

44.2(b) TRAP in its harm analysis. As a claim of constitutional error, the correct rule 

to evaluate harm was Rule 44.2(a) which requires that, the reviewing court must 

reverse a judgment of conviction or punishment unless the court determines beyond a 

5 
reasonable doubt that the error did not contribute to the conviction or punishment. 

Hernandez v. State, 60 SW3d 106 (Tex. Crim. App. 2001) Appellant submits that 

whether the correct rule [44.2(a)] or the less stringent rule [44.2(b)] is applied, the 

result is the same - the limitation placed on Appellant's cross examination violated the 

Sixth Amendment and was harmful. Appellant prays this Court grant discretionary 

review and order the reversal of his conviction and the grant of a new trial. 

APPELLANT'S SECOND CLAIM FOR REVIEW 

THE COURT OF APPEALS ERRED WHEN IT INTERPRETED THE RULES 

OF EVIDENCE TO UPHOLD THE EXCLUSION OF EVIDENCE ASSAILING 

THECREDIBILITYOFTHESTATE'SSTARWITNESSAMBERTHORNTON 

ARGUMENT IN SUPPORT OF APPELLANT'S CLAIM FOR REVIEW 

Amber Thornton was the key witness for the State in its prosecution of 

Appellant. Thornton was called upon to support the State's proof model that 

Appellant was aware of what was going to happen when the trio (Amber Thornton, 

Joseph Facundo and Appellant) went to the home of Russell Lopez on December 20, 

2011. Prior to becoming a cooperating witness for the State of Texas, Thornton had 

been interrogated by homicide investigator Clopton about the events leading up to and 

during the killing of Russell Lopez. Her testimony provided the State with evidence in 

support of its theory that Appellant knew that the object of their trip was to rob Lopez. 

She also provided direct proof that Appellant knew, or should have anticipated, that the 

killing of Lopez would occur. For those reasons, the admission of Thornton's pre-trial 

6 
statements were crucial to shed critical light on her credibility as a state witness. 

The Court of Appeals held that there was no reversible error in excluding 

Thornton's pre-trial statements to Clopton. The Court of Appeals noted Appellant's 

reliance on these two Rules of Evidence, but did not specifically hold that his reliance 

upon them was misplaced. The Court seemed to tacitly find that the statements were 

not admissible pursuant to Rule 801 (e)(2)(E) as a statement by a co-conspirator, or 

pursuant to Rule 107 - the Rule of Optional Completeness. The Court went on to 

essentially hold (as it did concerning other points of error) that since the jury heard 

Thornton's testimony acknowledging that she had previously lied to Clopton - that was 

sufficient to give the jury the gist of Appellant's defense. 

Appellant re-urges his reliance on King v. State, 189 SW3d 347 (Tex. Crim. 

App. - Fort Worth 2006, no pet.) The nature and full extent of Thornton's denial of 

culpability when first speaking with Clopton was not provided to the jury. Appellant 

submits that it was essential to Appellant's presentation of his defense that the jury be 

afforded the unfiltered exchange between Thornton and Clopton in order to understand 

how Thornton went from claiming ignorance (with Clopton) to becoming the star 

witness for the State at trial. 

The purpose behind the Rule of Optional Completeness is to insure that the factfinder have the benefit of full and complete information relating to the testimony which 

is necessary to fully and fairly explain a matter opened up by the adverse party. 

7 
Walters v. State, 247 SW3d 204 (Tex. Crim. App. 2007) The jury only heard the 

polished version of Thornton's testimony, and was not permitted to hear what had 

transpired between her and homicide investigator Clopton which may have contributed 

to her switching her story to aid the State in its prosecution of Appellant. 

The court's evidentiary rulings frustrated and prevented Appellant from 

presenting a full and complete defense in accordance with the Supreme Court holding 

in Holmes v. South Carolina, 547 U.S. 319 (2006). Holmes and other cases stand 

for the proposition that whether rooted directly in the Due Process Clause of the 

Fourteenth Amendment or in the Compulsory Process or Confrontation Clause of 

the Sixth Amendment, the Constitution guarantees criminal defendant's a meaningful 

opportunity to present a complete defense. At best, Appellant was permitted to present 

a skeletal defense that did not include evidence developed by police investigators 

which could have shed valuable light on the transition of Amber Thornton from 

accused capital murderer to star witness for the State of Texas. Appellant submits that 

the exclusion of the evidence under either evidentiary rule [801(e)(2)(E) or 107] 

abridged his right to present a defense by infringing upon a weighty interest of the 

accused and the use of the rules to exclude the evidence was arbitrary or 

disproportionate to the purpose they were designed to serve. 

In light of the constitutional implications raised by Holmes error, Appellant 

submits that any harm analysis must be performed in accordance with Rule 44.2( a), not 

8 
Rule 44.2(b) of the Texas Rules of Appellate Procedure. Appellant urges this Court to 

grant discretionary review and ultimately reverse his conviction and order a new trial. 

APPELLANT'S THIRD CLAIM FOR REVIEW 

THE COURT OF APPEALS ERRED WHEN IT HELD THAT APPELLANT 

WAIVEDHISRIGHTPURSUANTTORULE4060FTHERULESOFEVIDENCETO 

COMPLAIN ABOUT THE EXCLUSION OF EVIDENCE ESTABLISHING THE 

STATE'S STAR WITNESS HAD A HABIT OF LYING TO POLICE 

ARGUMENT IN SUPPORT OF APPELLANT'S CLAIM FOR REVIEW 

The State's star witness, Amber Thornton, was no stranger to the police. In fact, 

Thornton had been subjected to police interrogation before. Appellant proffered 

evidence establishing that Thornton had lied to the police in the course of that 

investigation as well. As noted in his brief on original submission to the Court of 

Appeals, Appellant was prohibited from introducing this evidence for the jury's 

consideration. 

On direct appeal, the Court of Appeals held that Appellant waived his right to 

complain about Amber Thornton's habit of lying to police because he did not 

specifically lodge a Rule 406 objection at trial. The Court of Appeals cited Buchanan 

v. State, 207 SW3d 772 (Tex. Crim. App. 2006) as authority for its holding. Appellant 

submits that the Court of Appeals misapplied Buchanan, by not finding that the legal 

basis for the admission of the evidence should have been obvious to the trial court and 

the prosecuting attorney. The exclusion of this evidence prevented the jury from 

evaluating Thornton's credibility which was paramount, given her role as the State's star 

9 
witness against Appellant. While the jury was apprised of Thornton's lying to homicide 

investigator Clopton in the instant case, it did not have the benefit of knowing that 

Thornton had done precisely the same thing when previously confronted by the police 

in another investigation. 

Rule 102 of the Rules of Evidence provides that the rules should be construed 

so as to administer every proceeding fairly; eliminate unjustifiable expense and delay, 

and promote the development of evidence law, to the end of ascertaining the truth and 

securing a just determination. Rule 103 TRE, as well as Rule 33.1 of the Rules of 

Appellate Procedure, set forth the rules for error preservation -with a unique exception 

for those instances where the specific grounds for the complaint were apparent from the 

context. 

Rule 406 of the Rules of Evidence provides that evidence of a person's 

habit.. .... may be admitted to prove that on a particular occasion the person ..... acted in 

accordance with the habit or routine practice. The court may admit this evidence 

regardless of whether it is corroborated or whether there is an eyewitness. In order for 

the proponent to offer evidence of habit, the proponent must at least demonstrate a 

regular practice of meeting a particular kind of situation with a specific kind of conduct. 

Anderson v. State, 15 SW3d 177 (Tex. App. - Texarkana 2000, no pet.) Rule 406 

mandates that evidence of habit is relevant to prove that the conduct of the person or 

accused on a particular occasion was in conformity with the habit. Miller v. State, 882 

10 
SW2d 936 (Tex. App. - Beaumont 1994). This is what occurred in the instant case -

when she was confronted with police interrogation, Thornton's default position (habit) 

was to lie to investigators. 

Even though Appellant did not specifically articulate his reliance on Rule 406, 

it was evident from the record that he sought to introduce how Thornton typically 

interacted with law enforcement when confronted by them. This Court has stated in the 

past that "we should avoid splitting hairs when determining whether a claim has been 

procedurally defaulted". Keeter v. State, 175 SW3d 756 (Tex. Crim. App. 2005). 

Appellant submits that the legal reason behind seeking admission of this evidence was 

obvious to the trial court and opposing counsel, and thus, the complaint was sufficiently 

preserved for appeal. Appellant prays this Court grant discretionary review and enter 

an order consistent with the issue raised herein. 

PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Honorable 

Court consider the issues raised herein and grant discretionary review, or such other 

relief, including remand to the Court of Appeals for consideration of issues as this Court 

deems appropriate. 

11 
Respectfully submitted 

Wayne T. Hill 

SBOT: 09656300 

4615 Southwest Freeway, Suite 600 

Houston, Texas 77027 

Tel: (713) 623-8312 

Fax: (713) 626-0182 

Attorney for Tony Escobar 

CERTIFICATE OF SERVICE & WORD COUNT COMPLIANCE 

On this 28th day of December, 2015, I hereby certify that a true and correct copy 

of this Petition for Discretionary Review has been mailed to the Harris County District 

Attorney's Office and the State Prosecuting Attorney. 

This Petition complies with Rule 9. 4 of the Texas Rules of Appellate Procedure 

containing 2826 words based on the computer generated program used to prepare this 

document. 

12 
APPENDIX "A" 

Memorandum Opinion 

In the Court of Appeals 

for the 

First District Of Texas 

Tony Escobar v. State of Texas 

No: 01-14-00593-CR 

Opinion issued October 29, 2015 
·' 

Opinion issued October 29, 2015. 

In The 

For The 

NO. 01-14-00593-CR 

TONY ESCOBAR, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 338th District Court 

Harris County, Texas 

Trial Court Case No.1344348 

MEMORANDUM OPINION 

A jury convicted appellant, Tony Escobar, of capital murder, and, because 

the State did not seek the death penalty, the trial court assessed punishment at 

confinement for life. We affirm. 

I 
BACKGROUND 

On the evening of December 20, 2011, Russell Lopez was at home taking 

care of his seven-year-old son, Caden, his six-year old niece, Bailey, and his ninemonth-old daughter, Julianne. Lopez's wife, Marie, and his cousin, Shonte Mabe, 

were at work together. When they got off work shortly after 9:00 that night, Marie 

tried calling Lopez twice, but was unable to reach him. Mabe gave Marie a ride 

home. When they pulled up to Marie's house, they noticed that Lopez's black 

Tahoe was not in the driveway. 

Upon entering the home, they found that their house had been ransacked and 

Marie's nine-month-old daughter was sitting on the couch unattended. Lopez was 

found lying on the bedroom floor covered in blood. While Mabe called 911, Marie 

went to Caden' s bedroom to check on the children. Marie found the children in 

Caden's bedroom. Both Caden and Bailey were unharmed, but their hands and feet 

had been bound together with Julianne's baby clothes. While Marie was in the 

children's bedroom, the 911 dispatch operator instructed Mabe to confirm that 

Lopez was not breathing. Lopez's face was so distorted that he was 

unrecognizable. Due to the severe nature of the injuries to Lopez's face, Mabe was 

unable to perform CPR. 

Paramedics arrived and declared Lopez dead on the scene. A sword was 

laying across his left chest and arm. There was a large concentration of blood on 

2 
the floor of the dining room area, as well as bloody trails on the carpet leading to 

Lopez's body, indicating that his body had been dragged from the dining room to 

the bedroom. Various items had been removed from the home, including a 

television, a game system, jewelry, and Lopez's vehicle. 

On December 22, Lopez's missing Tahoe was found partially submerged in 

a large body of water within a wooded area near Katy. The part of the vehicle that 

had not been submerged had been burned. Inside the vehicle, crime scene 

investigators with the Harris County Sheriffs Office recovered a cell phone, a 

shotgun shell, and a lighter. 

Sergeant Craig Clopton spoke with people in the neighborhood and 

developed two potential suspects, Amber Thornton and Joseph Facundo. On 

December 28th, Clopton interviewed Thornton, who consented voluntarily to the 

interview, at the homicide department. Based on information he received from 

Thornton, Clopton also developed appellant as a suspect. 

Clopton produced photo arrays containing pictures of the three suspects and 

showed them to Caden. Caden identified Thornton, Facundo, and appellant. 

Clopton then sought capital murder charges against appellant, and an arrest warrant 

was issued for his arrest. 

On December 30th, appellant and Facundo were apprehended in Laredo, 

where they were attempting to cross the border into Mexico. 

3 
A. Appellant's Trial 

At appellant's trial, Thornton testified as a witness for the State. According 

to Thornton, Lopez was the neighborhood drug dealer. On the evening of 

December 20, 2011, Thornton went to the vacant house next door to her home to 

get high. She found that Facundo and appellant were already at the vacant house 

smoking marihuana. Thornton testified that they spent the next 20 to 3 0 minutes 

discussing a plan to rob Lopez to get money and drugs. They planned to enter 

Lopez's home under the pretense of selling him a laptop, which appellant had 

brought to the vacant.house, in exchange for three bags of cocaine worth $20.00 

each. Once inside, Facundo would hit Lopez over the head with a hammer, 

appellant would tie up the children, and they would steal Lopez's property and his 

Tahoe. 

Facundo called Lopez and arranged for the "sale" of the laptop. Then they 

walked to Lopez's house, and he let them inside. Facundo was carrying the 

hammer in his pocket. Thorton testified that Lopez was sitting at the dining room 

table feeding his infant daughter. Caden and Bailey were also present, but Lopez 

told them to go to the back room. Appellant set the laptop on the table and grabbed 

the cocaine. Then Facundo pulled the hammer out of his pocket and struck Lopez 

in the back of the head. Lopez fell to the ground, and Facundo continued to 

repeatedly strike him with the hammer. 

4 
Thornton testified that the baby began crying, so she picked her up from the 

highchair and held her while appellant went to Carlen's room and tied up the other 

children. Facundo started grabbing televisions, guns, laptops, drugs, and money. 

Appellant and Facundo loaded the stolen items into the appellant's Tahoe, while 

Thornton held the baby. Appellant and Facundo grabbed Lopez by the hands and 

dragged his body into the bedroom. Then, Facundo retrieved an ornamental sword 

from Lopez's bedroom. Facundo and appellant were standing over Lopez's body, 

and Facundo was about to stab Lopez with the sword when he told Thornton to 

look the other way. Thornton testified that she did not watch what happened in the 

bedroom; instead, she walked over to the couch and set the baby down. 

Then they drove the Tahoe to the vacant house and hid the stolen property in 

the attic. Facundo told Thornton that he and appellant discarded the Tahoe at a lake 

known locally as "The Cliffs." Thornton testified that she sold some of the jewelry 

that she had stolen from Lopez's house. Thornton, Facundo, and appellant also 

took a safe stolen from the Lopez's home to a neighborhood friend named David 

Tillman. Tillman managed to open the safe, but they only found legal papers 

inside. Tillman later provided the stolen safe to Sergeant Clopton. 

Roger Milton, Jr., Assistant Medical Examiner for Harris County, testified 

regarding Lopez's autopsy results. Milton explained that Lopez had extensive blunt 

and sharp force injuries primarily of his head and neck region and some on the 

5 
front of his chest. Milton also observed the presence of two narrow objects 

penetrating into the soft tissue in what he referred to as potentially chop injuries. 

The injuries to complainant's face were extensive and very destructive with 

fractures. Milton also observed perforating wounds on Lopez's body, including a 

stab wound to the right upper chest that went through his lung. Milton testified that 

a sword shown to him (State's exhibit No. 94) was capable of inflicting the type of 

injuries sustained by- the complainant. He indicated that there was very little 

hemorrhage along the wound track indicating that the injury was consistent with 

either a peri-mortem (around the time of death) or even postmortem injury. Milton 

·opined that the complainant's cause of death was multiple blunt and sharp force 

injuries of the head, neck, and chest. He determined that the manner of death was 

homicide. 

Lopez's son, Caden, testified that on the evening of December 20, 2011, he 

saw his father sitting at the kitchen table feeding his sister Julianne, and there were __ 

two men standing behind him. His father told him to go back to his room. 

Approximately 10 minutes later, a man entered his room carrying Julianne's baby 

clothes and said "we're going to play cops and robbers." The man used the baby 

clothes to tie his legs together and to tie his hands behind his back. The man also 

tied up his cousin, Bailey. Then the man said "If I hear a noise, I'm going to bring 

a dog in here." After the man left, Caden ~racked the bedroom door open and saw 

6 

I-
the two men and woman rummaging around in the kitchen. Caden estimated that 

he waited approximately 30 minutes before his mother came home from work and 

found him. 

The following day, Caden was taken to the Children's Assessment Center to 

be interviewed. Sergeant Clopton showed him pictures and asked him to identify 

the people that were in his home that night. Caden circled appellant's photograph 

and identified him as the man that tied him up. Caden also made an in-court 

identification of appellant. 

The jury found appellant guilty of capital murder as charged m the 

indictment. 

B. Issues on Appeal 

Appellant brings the following twelve issues on appeal: 

1. The evidence is insufficient as a matter of law to sustain the jury's verdict 

fmding the appellant guilty of capital murder beyond a reasonable doubt. 

2. The trial court erred when it denied appellant's motion for instructed verdict 

of not guilty at the end of the State's case. 

3. The trial court erred when it admitted the 911 tape into evidence over 

appellant's objection. 

4. The trial court erred when it admitted numerous autopsy photographs into 

evidence over appellant's objections. 

5. The trial court erred when it limited appellant's cross examination of 

Sergeant Clopton regarding influences and motives to fabricate a story. 

7 
6. The trial court erred when it refused to allow appellant to establish what 

questions Sergeant Clopton asked Amber Thornton during her interview with him 

on December 28, 2011. 

7. The trial court erred when it refused to allow appellant to introduce Amber 

Thornton's statement to Sergeant Clopton in evidence pursuant to rule 

80l(E)(l)(E) of the Texas Rules of Evidence. 

8. The trial court erred when it refused to admit Amber Thornton's statement to 

Sergeant Clopton under the Rule of Optional Completeness. 

9. The trial court erred when it prevented appellant from cross examining 

Amber Thornton about her habit and routine lying to law enforcement to avoid 

responsibility for her actions. 

10. The trial court erred when it refused appellant's requested jury instruction on 

necessity. 

11. The trial court erred when it refused appellant's request for a jury instruction 

on the lesser offense of theft. 

12. The trial court erred when it commented on the weight of the evidence in the 

instructions given to the jury concerning the law of conspiracy. 

SUFFICIENCY OF THE EVIDENCE 

In his first two points, appellant challenges the sufficiency of the evidence to 

support his capital murder conviction. 

A. Standard of Review and Applicable Law 

A person commits capital murder "if the person commits murder as defmed 

under Section 19 .02 (b )(1 )" i.e., intentionally or knowingly causing the death of an 

individual, and ''the person intentionally commits the murder in the course of 

committing or attempting to commit ... robbery." TEX. PENAL CODE ANN. § 19.03 

8 
(West 2011 ). A defendant who did not actually cause the death of the victim can 

nonetheless be convicted of capital murder under section 7 .02 of the Texas Penal 

Code, which provides: 

(a) A person is criminally responsible for an offense committed by 

the conduct of another if: 

(1) acting with the kind of culpability required for the 

offense, he causes or aids an innocent or nonresponsible person 

to engage in conduct prohibited by the definition of the offense; 

(2) acting with intent to promote or assist the commission of 

the offense, he solicits, encourages, directs, aids, or attempts to 

aid the other person to commit the offense; or 

(3) having a legal duty to prevent commission of the offense 

and acting with intent to promote or assist its commission, he 

fails to make a reasonable effort to prevent commission of the 

offense. 

(b) If, in the attempt to carry out a conspiracy to commit one 

felony, another felony is committed by one of the conspirators, 

all conspirators are guilty of the felony actually committed, 

though having no intent to commit it, if the offense was 

committed in furtherance of the unlawful purpose and was one 

that should have been anticipated as a result of the carrying out 

of the conspiracy. 

TEX. PENAL CODE ANN. § 7.02 (West 2011 ). 

When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict to determine whether any rational fact 

finder could have found the essential elements of the offense beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); 

9 
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that 

Jackson standard is only standard to use when determining sufficiency of 

evidence). 

The jurors are the exclusive judges of the facts, the credibility of the 

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270 

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the 

facts and reject another, and it may reject any part of a witness's testimony. See 

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson 

v. State, 29 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2000, pet. ref d) 

(stating jury can choose to disbelieve witness even when witness's testimony is 

uncontradicted). We may not re-evaluate the weight and credibility of the evidence 

or substitute our judginent for that of the fact finder. Williams v. State, 235 S.W.3d 

742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the 

jury's determinations of credibility. See Lancon v. State, 253 S.W.3d 699, 705 

(Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of 

the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record 

supports conflicting inferences, we presume that the factfinder resolved the 

conflicts in favor of the prosecution and therefore defer to that determination."). 

10 
B. Analysis 

Appellant claims that the evidence is insufficient to corroborate the 

accomplice-witness testimony as required by Article 3 8 .14 of the Code of Criminal 

Procedure, which provides that "[a] conviction cannot be had upon the testimony 

of an accomplice unless corroborated by other evidence tending to connect the 

defendant with the offense committed; and the corroboration is not sufficient if it 

merely shows the commission of the offense." TEx. CODE CRIM. PROC. ANN. art. 

38.14 (West 2013). To measure the sufficiency of non-accomplice evidence, the 

reviewing court disregards the accomplice-witness testimony and then examines 

the remaining portions of the record to see whether there is any evidence that tends 

to connect the accused with the commission of the crime. Castillo v. State, 221 

S.W.3d 689, 691 (Tex. Crim. App. 2007). "The corroborating evidence need not be 

sufficient by itself to establish guilt; there simply needs to be 'other' evidence 

'tending to connect' the defendant to the offense." Id. The mere presence of the 

accused in the company of the accomplice during the commission of the offense is 

alone insufficient to corroborate the accomplice-witness testimony; however, the 

presence of the accused combined with other suspicious circumstances may tend to 

connect the accused to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. 

Crim. App. 1996). "Even apparently insignificant incriminating circumstances may 

sometimes afford satisfactory evidence of corroboration." Id 

11 
· The record contains sufficient non-accomplice evidence connecting 

appellant to the commission of the offense. Appellant was arrested while 

attempting to flee with Facundo to the Mexico. Appellant's flight raises an 

inference of guilt. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 

1994). Once arrested, appellant made several incriminating statements to the 

police. He admitted that he was present during the offense, and that he tied up the 

children. Appellant also admitted that he stole knives and a television set from the 

complainant's house and hid the stolen property in the vacant house. Appellant 

admitted that he drove the complainant's car to ''the Cliffs" and pushed the car into 

the water. And, appellant told police that he stuffed his shirt in the gas tank and set 

the car on fire. Appellant's admissions were consistent with non-accomplice 

testimony that the complainant's vehicle was found partially submerged and the 

rear end of the vehicle had been burned. Appellant also admitted that he received 

approximately $1,000 as his share of the profits. 

Caden's testimony also places appellant at the scene and establishes that 

appellant bound his hands and feet together and threatened him if he made any 

noise. 

Finally, a DNA mixture of two or more individuals was obtained from the 

scabbard of the sword used to stab the complainant, and appellant could not be 

12 
excluded as a possible contributor to that mixture. This non-accomplice evidence is 

sufficient to corroborate the accomplice-witness testimony. 

Appellant also argues that the evidence was insufficient to support his 

conviction for Capital Murder individually or as a party according to section 

7.02(a)(2) of the Penal Code. TEX. PENAL CODE § 7.02(a)(2) (West 2011) ("A 

person is criminally responsible for an offense committed by the conduct of 

another if acting with intent to promote or assist the commission of the offense, he 

solicits, encourages, directs, aids, or attempts to aid the other person to commit the 

offense."). He contends he did not intend to promote or assist Joseph Facundo 

and/or Amber Thornton in the murder of the Complainant. 

Appellant further argues that he could not have anticipated that Facundo 

would murder Russell Lopez. Appellant argues there is no evidence in the record 

to establish that appellant, (1) conspired to commit a felony offense with either 

Joseph Facundo and/or Amber Thornton or (2) that he should have anticipated 

Lopez's murder as a consequence of proceeding with Facundo and Thornton. 

Article 3 8.14 of the Texas Code of Criminal Procedure provides that a conviction 

cannot be had upon the testimony of an accomplice unless corroborated by other 

evidence tending to connect the defendant with the offense committed; and the 

corroboration is not sufficient if it merely shows the commission of the offense. 

13 
In response, the State contends that the evidence "is sufficient to support 

appellant's conviction as a party to the offense." It argues that appellant's 

"participation in the events occurring before, during, and after the commission of 

the offense clearly reflects a common understanding and design to murder and rob 

the complainant." It points to testimony by Amber Thornton asserting that she had 

formed a prior agreement with appellant and Joseph Facundo to rob and murder the 

complainant. 

The State also argues that appellant did not attempt to leave the scene or 

contact police when Facundo began striking. complainant with a hammer. Instead, 

appellant went to the children's bedroom and bound the children's hands and feet 

together. Then, he helped the co-defendant drag the complainant's body into the 

bedroom, rummaged through the complainant's house, stole from the deceased 

complainant, received an equal share of the profits, and attempted to flee to 

Mexico with Facundo. Accordingly, the State argues "a rational trier of fact could 

have concluded beyond a reasonable doubt that appellant was a willing participant 

in a conspiracy to rob the complainant." We agree. 

To convict appellant for capital murder as a co-conspirator, the State had to 

prove (1) appellant was a party to a conspiracy to commit aggravated robbery, (2) 

capital murder was committed by appellant or someone acting with him, (3) the 

capital murder was committed in furtherance of the conspiracy to commit 

14 
aggravated robbery, and (4) appellant should have anticipated that capital murder 

could occur as a result of the aggravated robbery. E.g., TEX. PENAL CODE ANN. § 

7.02(b); Hartsfield v. State, 305 S.W.3d 859, 869 (Tex. App.-Texarkana 2010, 

pet. ref d). The State "does not have to prove that the accused intended to shoot or 

kill the victim or intended that the victim be shot, as long as the evidence 

established he conspired to commit the robbery and that he 'should have' 

anticipated the murder as a result of carrying out the conspiracy to commit the 

robbery." Davis v. State, 276 S.W.3d 491, 495 (Tex. App.-Waco 2008, pet. 

refd). 

1. Evidence of conspiracy to commit aggravated robbery 

The Texas Penal Code defines robbery as: in the course of committing theft, 

and with the intent to obtain or maintain control of the property, a defendant 

intentionaly, knowingly or recklessly causes bodily injury to another or 

intentionally or knowingly threatens or places another in fear of imminent bodily 

injury or death. TEX. PENAL CODE ANN. § 29.02(a) (West 2011); Sholars v. State, 

312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2009, pet. refd). 

Aggravated robbery is robbery that causes serious bodily injury to another, or is 

committed while using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. § 

29.03 (West 2011). 

15 
The jury was instructed that conspiracy means "an agreement between two 

or more persons with intent that they, or one or more of them, engage in conduct 

that would constitute the offense." TEX. PENAL CODE ANN. § 15.02(a) (West 2011); 

Hooper v. State, 255 S.W.3d 262, 265-66 (Tex. App.-Waco 2008, pet. refd). The 

court may look to events occurring before, during, and after the commission of the 

offense as evidenced of criminal responsibility under the law of parties. Ervin v. 

State, 333 S.W.3d 187, 201 (Tex. App.-Houston [1st Dist.] 2010, pet. refd) 

("Since an agreement between parties to act together in common design can 

seldom be proven by words, the State often must rely on the actions of the parties, 

shown by direct or circumstantial evidence, to establish an understanding or a 

common design to commit the offense."). 

There is evidence of such an agreement among appellant~ Amber Thornton, 

and Joseph Facundo to commit aggravated robbery in this case. The State 

introduced testimony from Amber Thornton that she had formed a prior agreement 

with appellant and Joseph Facundo to rob and murder the complainant. Thornton 

testified that she met with appellant and Facundo at a vacant house and spent 

roughly half an hour concocting a plan to gain entry to the complainant's home 

under the pretense of selling him a laptop. Once inside, Facundo would strike the 

complainant in the head with a hammer, appellant would tie up the children, and 

16 
they would steal the complainant's property. Thornton also testified that they also 

had a plan to sell the stolen property afterwards. 

Thornton's testimony establishes that appellant contributed to the execution 

of their plan in several ways: (1) he accompanied Thornton and Facundo to the 

Lopez's house; (2) he provided the laptop and sold it to Lopez for cocaine; (3) he 

tied up the children when Facundo began striking Lopez with the hammer; (4) he 

helped Facundo drag Lopez's body into the bedroom; (5) he loaded Lopez's 

property in to the Tahoe; (6) he helped transport the stolen property to the attic of a 

vacant house; and (7) he and Thornton later retrieved a stolen safe from the attic 

and took it to David Tillman who opened the safe. 

2. Evidence that capital murder was committed by a co-conspirator 

The State was required to prove that the capital murder was committed by 

appellant or someone acting with him. Appellant stated that Joseph Facundo killed 

Russell Lopez, and does not dispute that on appeal. 

3. Evidence that Russell Lopez was killed in furtherance of conspiracy 

Testimony from Amber Thornton stated that Facundo, appellant, and she 

made an agreement prior to going to Lopez's house, to rob and murder Lopez. 

Thornton also testified that the plan was for appellant to bring a laptop to sell, and 

for Facundo to hit Lopez with a hammer and then rob the house. Appellant's 

actions were consistent with Thornton's account of a planned robbery. There is no 

17 
evidence that appellant attempted to leave the scene or contact police. Instead, 

appellant immediately went to Caden's bedroom and bound the children's hands 

and feet together. Then, he helped his co-defendant drag Lopez's body into the 

bedroom, rummaged through Lopez's house, stole from the deceased Lopez, 

received an equal share of the profits, and attempted to flee to Mexico with 

Facundo. There is sufficient evidence for the jury to conclude that Lopez was 

killed in furtherance of the conspiracy to commit aggravated robbery. 

4. Evidence that appellant should have anticipated capital murder 

Testimony from Thornton showed that appellant was aware that Facundo 

intended to strike the complainant in the head with a hammer that he was carrying 

in his pocket. It is reasonably foreseeable that a person might die as a result of 

being struck in the head with a hammer. Furthermore, the fact that appellant 

continued to remain at the scene and did not protest when the complainant was 

repeatedly struck with a hammer and stabbed with a sword shows his acquiescence 

in the actions that caused Lopez's death. Viewing the evidence in the light most 

favorable to the jury's verdict, a rational trier of fact could have found beyond a 

reasonable doubt that appellant was criminally responsible as a party to the capital 

murder. 

We overrule points of error one and two. 

18 
RULE 401 & 403 OBJECTIONS 

In point of error three, appellant claims that the trial court erred in admitting 

the 911 tape. In point of error four, appellant contends that the trial court erred in ... .... ........ 

admitting numerous autopsy photographs. 

A. Standard of Review and Applicable Law 

Evidence is relevant if (1) it has any tendency to make a fact more or less 

probable that it would be without the evidence; and (2) the fact is of consequence 

in determining the action. TEX. R. APP. P. 401. Although relevant, evidence may 

be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, misleading the jury, undue delay, or 

needless presentation of cumulative evidence. TEX. R. Evm. 403. 

An abuse of discretion standard is applied to a trial court's decision to admit 

or exclude evidence. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 

2010). Likewise, in reviewing the trial court's determination of the probative and 

prejudicial value of evidence under rule 403, we will reverse the trial court only 

upon a showing of a clear abuse of discretion. Rachal v. State, 917 S.W.2d 799, 

808 (Tex. Crim. App. 1996). But, reviewing for abuse of discretion in this context 

requires more than deciding that the trial judge did in fact conduct the required 

balancing between probative and prejudicial values; the trial court's determination 

must be reasonable in view of all relevant facts. Id. Accordingly, if the record 

19 
reveals that the probative value of the tendered evidence is substantially 

outweighed by unfair prejudice, then the trial court acted irrationally in admitting it 

and abused discretion. Id. 

B. Analysis 

1. 911 Tape 

Appellant argues that the 911 tape was not relevant because the State had 

ample other evidence concerning the discovery of the body and the police coming 

out to the scene, and that, in light of that other evidence, the evidence contained on 

the 911 tape was redundant and irrelevant. 

911 tapes are generally admissible under Rules 401 and 403, even if not 

necessary to establish a material fact, because they provide a framework within 

which the State's evidence may be developed. Webb v. State, 760 S.W.2d 263, 276 

(Tex. Crim. App. 1988) (holding 911 tape admissible over rule 403 objection, even 

though not establishing material facts, because tape provides framework for 

developing evidence); Sierra v. State, 157 S.W.3d 52, 63 (Tex. App.-Fort Worth 

2004, affd, 218 S.W.3d 85 (Tex. Crim. App. 2007) (911 tape admissible over rule 

403 objection); Munoz v. State, 932 S. W.2d 242, 244 (Tex. App.-Texarkana 

1996, no pet.); Brooks v. State, 833 S.W.2d 302, 304 (Tex. App.-Fort Worth 

1992, pet. ref d). 

20 
In Yi v. State, No. 01-05-01147-CR, 2007 WL 2052064, at *4 (Tex. App.-

Houston [1st Dist.] July 19, 2007, no pet.) (mem. op.), this Court concluded that 

the trial court did not abuse its discretion in admitting the 911 tape of 11-year-old 

boy crying and praying as he discovered his mother's blood-soaked body because 

the tape offered a framework for the State's case. 

Similarly, the 911 tape in this case was made immediately after Amanda 

Mabe and Marie Lopez discovered Russell Lopez's body and corroborates their 

testimony. The tape is relevant because it provides "a framework" for the State's 

evidence, and its relevance is not "substantially outweighed" by the danger of 

unfair prejudice toward the defendant. Accordingly, the trial court did not abuse its 

discretion in admitting the 911 tape over appellant's 401 and 403 objections. 

We overrule point of error three. 

2. Autopsy Photographs 

Appellant also argues that the trial court abused its discretion in admitting 

autopsy photographs into evidence. Appellant contends that State's exhibits 79-93 

are irrelevant because the cause of complainant's death was not a contested issue at 

trial. Appellant also argues that the probative value of the photographs was 

substantially outweighed by the danger of unfair prejudice. 

The trial court's decision to admit photo_graphs into evidence is reviewed for 

an abuse of discretion. Penry v. State, 903 S.W. 2d 715, 751 (Tex. Crim. App. 

21 

.. I 
1995). A photograph is relevant if it has "any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence." See TEX. R. Evm. 401. "The 

identity of the victim and the manner and means of death are certainly facts that are 

of consequence to the determination of the action." Penry, 903 S.W.2d at 751 

(citing Long v. State, 823 S.W.2d 259,.271 n.18 (Tex. Crim. App. 1991)). Thus, 

autopsy photographs that are helpful in demonstrating the cause of death are 

admissible even if the cause of death is not contested. See Flores v. State, 299 

S.W.3d 843, 858 (Tex. App.-El Paso 2009, pet. ref d) (holding that photographic 

evidence was admissible even if it merely corroborated other evidence). Overall, 

the photograph must be helpful to the jury: "If there are elements of a photograph 

that are genuinely helpful to the jury in making its decision, the photograph is 

inadmissible only if the emotional and prejudicial aspects substantially outweigh 

the helpful aspects." Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 

2004). 

Here, the indictment charged appellant with causing the death of Lopez by 

striking him with a hammer or stabbing him with a sword. The 15 autopsy 

photographs introduced at trial were selected by the prosecutor and the medical 

examiner from more than 250 photographs taken of the complainant's injuries. The 

medical examiner testified that the autopsy photographs of Lopez's injuries were 

22 
relevant to show the cause of death. The photographic evidence of the 

complainant's injuries was relevant because it supported the State's theory that 

Lopez was struck in the back of the head with a hammer and suffered repeated 

blows from a hammer and a sword. 

Appellant further contends that, even if the photographs are relevant, they 

are overly prejudicial. Under the Rule of Evidence 403, the trial court must 

determine whether the probative value of the photographic evidence is 

substantially outweighed by the danger of unfair prejudice. TEX R. Evm. 403. To 

make this determination, the court assesses various factors such as whether the 

photographs are gruesome, their detail, their size, whether they are black and white 

or color photographs, whether the body is naked or clothed, and whether the body 

has been altered in some way that enhances the gruesomeness of the photograph. 

Flores v. State, 299 S.W.3d 843, 858 (Tex. App.-El Paso 2009, pet. refd). 

Although the autopsy photographs are gruesome, the trial court admitted only 

those photographs that the medical examiner testified were probative of the manner 

and method of the Lopez's death. Accordingly, appellant has not demonstrated that 

the trial court abused its discretion by admitting the photographic evidence. 

We overrule point of error four. 

23 
CROSS EXAMINATION 

In the fifth point of error, appellant claims that the trial court erred by 

limiting his cross-examination of Sergeant Clopton, which was designed to cast 

doubt upon the anticipated testimony of the State's principal witness, Amber 

Thornton. The prohibited line of questioning included the following: 

[Defense Counsel]: As an experienced homicide investigator would 

you agree that taking capital murder off the table and offering 

aggravated robbery and possible probation could influence or be a 

motive to fabricate a story? 

[Prosecutor]: Objection. Speculation and relevance. 

[Defense Counsel]: I think he's qualified as an expert to testify as an 

experienced homicide investigator. 

[Prosecutor]: Speculation as to what motivation it might have to 

another person. 

[Trial Court]: Sustained. 

A. Standard of Review and Applicable Law 

We review a trial court's decision to exclude evidence for an abuse of 

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial 

court abuses its discretion onl)' if its decision is "so clearly wrong as to lie outside 

the zone within which reasonable people might disagree." Taylor v. State, 268 

S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its discretion 

if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 

(Tex. Crim. App. 2002). We will uphold the trial court's evidentiary ruling if it 

24 
was correct on any theory of law applicable to the case. See De La Paz v. State, 

279 S.W.3d 336, 344 (Tex. Crim. App. 2009). 

The Sixth Amendment right to confront witnesses "includes the right to 

cross-examine witnesses to attack their general credibility or to show their possible 

bias, self-interest, or motives in testifying." Hammer v. State, 296 S.W.3d 555, 561 

(Tex. Crim. App. 2009). Generally, the Texas Rules of Evidence permit a 

def end ant to "cross-examine a witness for his purported bias, interest, and motive 

without undue limitation or arbitrary prohibition." Id at 563; see also TEX. R. 

Evm. 613(b) (providing for impeachment of witness by evidence of alleged bias or 

interest in favor or against party); Billodeau v. State, 277 S.W.3d 34, 42-43 (Tex. 

Crim. App. 2009). ("The possible animus, motive, or ill will of a prosecution 

witness who testified against the defendant is never a collateral or irrelevant 

inquiry, and the defendant is entitled, subject to reasonable restrictions, to show 

any relevant fact that might tend to establish ill feeling, bias, motive, interest, or 

animus on the part of any witness testifying against him."); Carpenter v. State, 979 

S.W.2d 633, 634 (Tex. Crim. App. 1998) ("Exposing a witness' motivation to 

testify for or against the accused or the State is a proper and important purpose of 

cross-examination.") The scope of permissible cross-examination is "necessarily 

broad." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). "A 

25 
defendant is entitled to pursue all avenues of cross-examination reasonably 

calculated to expose a motive, bias, or interest for the witness to testify." Id 

This broad scope of cross-examination does not mean, however, "that a 

defendant can explore every possible line of inquiry." Smith v. State, 352 S.W.3d 

55, 64 (Tex. App.-Fort Worth 2011, no pet.) "[T]rial judges retain wide latitude 

. . . to impose reasonable limits on such cross-examination based on concerns 

about, among other things, harassment, prejudice, confusion of the issues, the 

witness' safety, or interrogation that is repetitive or only marginally relevant." 

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986); see 

also Hammer, 296 S.W.3d at 561 ("This right is not unqualified, however, the trial 

judge has wide discretion in limiting the scope and extent of cross-examination."). 

B. Analysis 

Even if we were to agree that the trial court erred in excluding Clopton's 

testimony about the effect of a plea deal on the witness, we would nonetheless 

conclude that the error was harmless. The reviewing court must disregard any nonconstitutional error which does not affect appellant's substantial rights. See TEX. R. 

APP. P. 44.2(b ). Substantial rights are not affected by the erroneous exclusion of 

evidence if, after considering the record as a whole, the reviewing court "has fair 

assurance that the error did not influence the jury, or had but a slight effect." 

Motil/av. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 

26 
Appellant claims that the prohibited line of cross-examination was necessary 

to undermine Thornton's credibility by showing that she had a motivation to lie in 

exchange for a reduced charge. However, the State presented testimony from 

Thornton acknowledging that she had initially been charged with capital murder, 

which posed a potential penalty of death or life without the possibility of parole. 

Thornton admitted that the original charge of capital murder was later reduced to a 

charge of aggravated robbery in exchange for her testimony against appellant and 

Facundo. On cross-examination, Thornton further testified that she had pleaded 

guilty to aggravated robbery, making her potentially eligible to receive probation 

after testifying against both co:-defendants. Thus, the jury could have believed that 

the reduced charge could affect Thornton's credibility, even without expert opinion 

testimony from Sergeant Clopton. 

We overrule point of error five. 

EXCLUSION OF EVIDENCE 

In three points of error-six, seven, and eight-appellant complains that the 

trial court erroneously excluded evidence of the questions Sergeant Clopton asked 

Amber Thornton during his initial interrogation of her on December 28, 2011. 

Appellant also argues that Thornton's statement should have been admitted under 

the Rule of Evidence 80l(e)(2)(E) as a statement by a co-conspirator during the 

27 
course and in furtherance of the conspiracy and under the Rule of Optional 

Completeness. 

A. Standard of Review 

Rule 801(e)(2)(E) of the Texas Rules of Evidence allows the introduction of 

a conspirator's statement if made during and in furtherance of the conspiracy. The 

rationale for this rule is based on the concept that "a conspiracy is . a common 

undertaking where the conspirators are all agents of each other and where the acts 

and statements of one can be attributed to all." Byrd v. State, 187 S.W.3d 436, 440 

(Tex. Crim. App. 2005) (quoting Bourjaily v. United States, 483 U.S. 171, 188-94 

(1987)). Consequently, the conspirators are imbued with a degree of 

trustworthiness in light of their lack of incentive to mischaracterize the actions of 

their co-conspirators. Id Statements made by a conspirator after the conspiracy has 

come to a conclusion are not exempt from the hearsay rule. Id. (citing Krulewitch 

v. United States, 336 U.S. 440, 441-42 (1949)); Deeb v. State, 815 S.W.2d 692, 

696 (Tex. Crim. App. 1991). 

The Rule of Optional Completeness provides that: 

[ w ]hen part of an act, declaration, conversation, writing or recorded 

statement is given in evidence by one party, the whole on the same 

subject may be inquired into by the other, and any other act, 

declaration, writing or recorded statement which is necessary to make 

it fully understood or to explain the same may also be given in 

evidence, as when a letter is read, all letters on the same subject 

between the same parties may be given. 

28 
TEX. R. EVID. 107 (since amended). 

This rule is an exception to the hearsay rule and permits the introduction of 

otherwise inadmissible evidence when necessary to fully and fairly explain a 

matter "opened up" by the adverse party. Walters v. State, 247 S.W.3d 204, 218 

(Tex. Crim. App. 2007). The purpose of the rule "is to reduce the possibility of the 

jury's receiving a false impression from hearing only a part of some act, 

conversation, or writing." Tovar v. State, 221 S.W.3d 185, 190 (Tex. App.-

Houston [lst Dist.] 2006, no pet.). The rule is not implicated until a party attempts 

to have a portion of the recorded statement "given in evidence." Sauceda v. State, 

129 S.W.3d 116, 122 (Tex. Crim. App. 2004) (quoting TEX. R. EVID. 107). 

B. Analysis 

In the instant case, appellant contends that Thornton's statement was in 

furtherance of the conspiracy because she was attempting to prevent the police 

from learning of the existence of the conspiracy. Appellant cites to King v. State, 

189 S.W.3d 347 (Tex. App.-Fort Worth 2006, no pet.), ill which statements made 

in an effort to conceal evidence that would incriminate the co-conspirators for 

murder was admissible because the statements benefitted the conspiracy. 

Appellant also contends that, when Thornton gave testimony that was at odds with 

her statement made to Clopton, the jury was entitled to the benefit of the whole of 

her statement under the Rule of Optional Completeness. Appellant states that the 

29 
jury was deprived of the full flavor of the exchange taking place between Sergeant 

Clopton and Thornton on December 28, 2011, and that the trial court's rulings 

prevented appellant from presenting a full and complete defense because "the jury 

should have been afforded the opportunity to understand how Thornton went from 

claiming ignorance (with Clopton) to becoming the star witness for the State at 

trial." 

However, error, if any in refusing to admit Thornton's statement under any 

of the asserted grounds is harmless. Exclusions of evidence are unconstitutional 

only if they "significantly undermine fundamental elements of the accused's 

defense." Potier v. State, 68 S.W.3d 657, 666 (Tex. 2002) (citing United States v. 

Scheffer, 523 U.S. 303, 315, 118 S. Ct. 1261 (1998)). That the defendant was 

unable to present his case to the extent and in the form he desired is not prejudicial 

where, as here, he was not prevented from presenting the substance of his defense 

to the jury. Id. 

When Thornton testified, she candidly admitted on both direct and crossexamination that she had been dishonest when she initially told Sergeant Clopton 

that there was no plan to rob or murder the complainant. The State's questions did 

not leave a false impression with the jury, and the introduction of the statement 

was not necessary for the jury to fully understand that Thornton had previously lied 

to the police about her involvement in a plan to rob and murder Lopez. The jury 

30 
was also made aware that Thornton had pleaded guilty to a reduced charge after 

she agreed to testify against her co-defendants. As such, exclusion of the further 

evidence regarding Thornton's statements to police did not affect appellant's 

"substantial right," as he was able to make the jury aware of Thornton's 

inconsistent statements and the fact that she received a reduced charge. See id.; 

TEX. R. EVID. 103(a) ("Error may not be predicated upon a ruling which admits or 

excludes evidence unless a substantial right of the party is affected .... "); TEX. R. APP. 

P. 44.2(b) ("Any other error, defect, irregularity, or variance that does not affect 

substantial rights must be disregarded."). 

We overrule points of error six, seven, and eight. 

EXLUSION OF EVIDENCE OF HABIT AND ROUTINE 

In point of error nine, appellant contents the trial court erred by refusing to 

permit cross-examination of Amber Thornton regarding a prior incident involving 

lying to the police. At trial, defense counsel attempted to ask Thornton about 

whether she had lied to police on other occasions. The State objected that defense 

counsel was improperly trying to impeach Thornton with specific acts of 

misconduct. The trial court sustained the objection. 

On appeal, appellant contends that the evidence should have been admissible 

as evidence of habit under Texas Rule of Evidence 406, which provides: 

Evidence of a person's habit or an organization's routine practice may 

be admitted to prove that on a particular occasion the person or 

31 
organization acted in accordance with the habit or routine practice. 

The court may admit this evidence regardless of whether it is 

corroborated or whether there was an eyewitness. 

TEX. R EVID. 406. 

To preserve a complaint for appellate review, a party must have presented to 

the trial court a timely request, objection, or motion that states the specific grounds 

for the desired ruling if they are not apparent from the context of the request, 

objection, or motion. TEX. R. APP. P. 33.l(a)(l); Clark v. State, 365 S.W.3d 333, 

339 (Tex. Crim. App. 2012). A general or imprecise request suffices to preserve 

error only if the legal basis for the request is obvious to the court and to opposing 

counsel. See Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). The 

point of error raised on appeal must comport with the request made at trial. See 

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Clark, 365 S.W.3d 

at 339. Failure to properly object or make a request at trial may waive even 

constitutional errors. See Yazdchi, 428 S.W.3d at 844; Clark, 365 S.W.3d at 339. 

At trial, appellant never invoked rule 406 or argued that the evidence was 

admissible as evidence of habit. Thus, appellant has waived the right to raise this 

complaint on appeal. 

We overrule point of error nine. 

JURY INSTRUCTION ON NECESSITY 

32 
In point of error ten, appellant contends the trial court erred when it refused 

his requested jury instruction on necessity. Specifically, appellant admits that he 

tied up the children and helped steal the complainant's property, but contends he 

was forced to do so out of fear of his co-defendant, Facundo. 

A. Standard of Review and Applicable Law 

Generally, a defendant is entitled to a jury instruction on every defensive 

issue raised by the evidence as long as such an instruction is properly requested. 

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Reese v. State, 877 

S.W.2d 328, 333 (Tex. Crim. App. 1994); McGann v. State, 30 S.W.3d 540, 547 

(Tex. App.-Fort Worth 2000, pet. ref d); Miller v. State, 940 S.W.2d 810, 812 

(Tex. App.-F ort Worth 1997, pet. ref d). If a defendant produces evidence raising 

each element of a requested defensive instruction, she is entitled to the instruction 

regardless of the source and strength of the evidence. Hamel v. State, 916 S.W.2d 

491, 493 (Tex. Crim. App. 1996) (recognizing that "an accused has the right to an 

instruction on any defensive issue raised by the evidence, whether that evidence is 

weak or strong, unimpeached or contradicted, and regardless of what the trial court 

may or may not think about the credibility of the defense"); Miller v. State,· 815 

S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh'g); Brazelton v. State, 947 

S.W.2d 644, 646 (Tex. App.-Fort Worth 1997, no pet.). The credibility of the 

evidence presented regarding the defense is immaterial in determining whether the 

33 
instruction is required. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 

1993); Miller, 815 S.W.2d at 585; Shafer v. State, 919 S.W.2d 885, 887 n.1 (Tex. 

App.-Fort Worth 1996, pet. refd). A defendant's testimony alone is sufficient to 

raise a defensive issue requiring an instruction in the jury charge. Hayes v. State, 

728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Warren v. State, 565 S.W.2d 931, 

933-34 (Tex. Crim. App. 1978). We review the evidence offered in support of a 

defensive issue in the light most favorable to the defense. Shafer, 919 S.W.2d at 

887 n.l. 

To raise necessity, a defendant must admit he committed the offense and 

then offer necessity as a justification. See Young v. State, 991 S.W.2d 835, 839 

(Tex. Crim. App.), cert. denied, 528 U.S. 1063, 120 S. Ct. 618 (1999). The defense 

of necessity "exonerates a person who commits proscribed conduct in order to 

prevent an even greater harm." Acosta v. State, 660 S.W.2d 611, 614 (Tex. App.-

Corpus Christi 1983, no pet.). 

The Texas Penal Code authorizes necessity as a justification defense to a · 

criminal charge if: 

(1) the actor reasonably believes the conduct is immediately necessary 

to avoid imminent harm; 

(2) the desirability and urgency of avoiding the hann clearly 

outweigh, according to ordinary standards of reasonableness, the. 

harm sought to be prevented by the law proscribing the conduct; 

and 

34 
(3) a legislative purpose to exclude the justification claimed for the 

conduct does not otherwise plainly appear. 

TEX. PENAL CODE ANN. § 9.22(1)-{3) (West 2011); see also id. § 9.02 (West 1994) 

(providing "[i]t is a defense to prosecution that the conduct in question is justified 

under this chapter."). The requirements of subsections 9.22(1) and (2) must be 

satisfied by evidence, while subsection (3) presents a question of law. Leach v. 

State, 726 S.W.2d 598, 600 (Tex. App.-Houston [14th Dist.] 1987, no pet.). 

Section 9 .22, subsection (I) sets forth the basic two-prong test a defendant 

must satisfy in order to be entitled to a jury instruction on the defense of necessity. 

First, a defendant is required to present evidence that she reasonably believed a 

specific harm was imminent. See TEX. PENAL CODE ANN. § 9.22(1); Johnson v. 

State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Brazelton, 947 S.W.2d at 648. 

"Imminent" means something that is impending, not pending; something that is on 

the point of happening, not about to happen. Jackson v. State, 50 S.W.3d 579, 594-

95 (Tex. App.-Fort Worth 2001, pet. refd); Smith v. State, 874 S.W.2d 269, 272-

73 (Tex. App.-Houston [14th Dist.] 1994, pet. refd). Harm is imminent when 

there is an emergency situation and it is "immediately necessary" to avoid that 

harm. Jackson, 50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273. In other words, a 

split-second decision is required without time to consider the law. Jackson, 50 

S.W.3d at 595; Smith, 874 S.W.2d at 273. 

35 
Second, a defendant must present evidence that he reasonably believed the 

criminal conduct was immediately necessary to avoid the imminent harm. See TEX. 

PENAL CODE ANN. § 9.22(1); Brazelton, 947 S.W.2d at 648. "Reasonable belief' 

means a belief that would be held by an ordinary and prudent man in the same 

circumstances as the actor. TEX. PENAL CODE ANN. § l.07(a)(42) (West 2011). As 

a general rule, determination of the reasonableness of an accused's belief is a 

question of fact, and should be viewed from the accused's standpoint at the time he 

acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990); Brazelton, 

947 S.W.2d at 648 (citing Sanders v. State, 707 S.W.2d 78, 79-80 (Tex. Crim. 

App. 1986)); Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.-Houston [1st 

Dist.] 1994, pet. ref d). 

B. Analysis 

In Murkledove v. State, 437 S.W.3d 17, 24-25 (Tex. App.-Fort Worth 

2014, pet. dism'd, untimely filed), the defendant, Murkledove, requested a 

necessity instruction, arguing that "he acted out of necessity to preserve his own 

life because [a co-defendant] said he would kill [the intended robbery victim] and 

Murkledove feared that if he did not participate, [the co-defendant] would kill him 

too." The court held that Murkledove failed to show that he was entitled to a 

necessity instruction, noting that "nothing in the record reflects that [the codefendant] may any threats-immediate or otherwise---to Murkledove if he did not 

36 
assist with the break-in. Even if one could infer that Murkledove feared the 

possibility of or potential hann to himself or his family, no evidence exists upon 

which an inference could be made that hann was imminent when he decided to 

act." Id at 25. 

The same is true in this case. There is no evidence that appellant faced any 

imminent threat of harm from Facundo. As in Murkledove, there is no evidence 

that the co-defendant, Facundo, had made any threats to appellant, immediate or 

otherwise. Thus, like the court in Murkledove, we conclude that appellant has 

failed to show that he was entitled to a necessity instruction. 

We overrule point of error ten. 

JURY INSTRUCTION ON LESSER-INCLUDED OFFENSE OF THEFT 

In his eleventh point of error, appellant contends ''the trial court erred when 

it refused appellant's request for a jury instruction on the [misdemeanor] lesser 

included offense of theft." The charge included an instruction on the lesserincluded offense of theft of property of the value of $1,500 or more, but less than 

$20,000, a state jail felony, but the trial court refused appellant's request for a 

lesser-included offense of theft of property· with a value of less than $1,500. 1 

Theft of property is classified as a Class A misdemeanor if the value of the stolen 

property is $500 or more, but less than $1,500. TEX. PENAL CODE ANN. § 

31.03(e)(3) (West Supp. 2014). 

37 
Specifically, appellant pointed to evidence in his own statement to police in which 

he stated that he received less than $1,000 from what was taken from Lopez. 

A. Standard of Review and Applicable Law 

We review the trial court's decision on the submission of a lesser-included 

offense for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 575 (Tex. 

Crim. App. 2005). The trial court abuses its discretion when its decision is 

arbitrary, unreasonable, or without reference to guiding rules -or principles. See 

Makeig v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990). Because the trial court 

has no discretion in determining the applicable law, the trial court also abuses its 

discretion when it fails to analyze the law correctly and apply it to the facts of the 

case. See State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). 

We apply a two-prong test when determining whether a defendant is entitled 

to an instruction on a lesser-included offense. See Wortham v. State, 412 S.W.3d 

552, 554 (Tex. Crim. App. 2013); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. 

Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981). 

First, we consider whether the lesser-included offense is included within the proof 

necessary to establish the charged offense. See TEX. CODE CRIM. PROC. ANN. art. 

37.09; Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). If it is, we 

then examine whether there is evidence in the record that would permit a jury to 

rationally find that ifthe defendant is guilty, he is guilty of only the lesser-included 

38 
offense. See Agu,ilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The 

evidence must establish that the lesser-included offense is a valid, rational 

alternative to the charged offense. See Segundo v. State, 270 S.W.3d 79, 90-91 

(Tex. Crim. App. 2008). Anything more than a scintilla of evidence is sufficient to 

entitle a defendant to the lesser charge. See Goad v. State, 354 S.W.3d 443, 446 

(Tex. Crim. App. 2011). We review all of the evidence in the light most favorable 

to the requested lesser-included offense, regardless of whether the evidence was 

produced. by the State or the defendant, or whether the evidence was strong, weak, .. . 

unimpeached, or contradicted. See Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. 

App. 1985). 

A person commits a theft "if he unlawfully appropriates property with intent 

to deprive the owner of property." See TEX. PENAL CODE ANN. § 31.03(a) (West 

Supp. 2014). The Penal Code describes several grades of theft ranging from a 

Class C misdemeanor to a felony of the first degree. See id. § 31.03( e ). With few 

exceptions not applicable here, the only element distinguishing one grade of theft 

from another is the value of the property taken. See id. Under Texas law, the value 

of the property taken is an essential element of the offense. See Simmons v. State, 

109 S.W.3d 469, 478-79 (Tex. Crim. App. 2003); Sowders v. State, 693 S.W.2d 

448, 450 (Tex. Crim. App. 1985); Christiansen v. State, 575 S.W.2d 42, 44 (Tex. 

39 
Crim. App. 1979); McKnight v. State, 387 S.W.2d 662, 663 (Tex. Crim. App. 

1965). 

B. Analysis 

Here, appellant fails to meet the second prong of the test for lesser-included 

offenses, i.e., there is no evidence that would permit a jury to rationally find that if 

the defendant is guilty, he is guilty of only a theft of less than $1,500. Although 

appellant told the officer that his share of the robbery was less than $1,000, he also 

stated that the amount taken was valued at between $3,000 and $4,000. It is the 

amount stolen, not the amount of appellant's share of the stolen property, that 

determines the crime charged. The evidence was that appellant participated in a 

theft of televisions, a game system, a jewelry box, guns, laptops, drugs, money, 

and an SUV. There is no evidence that would support appellant's contention that 

the total of the stolen property was less than $1,000, even ifhe personally received 

less. A defendant is not entitled to an instruction of the lesser-included offense of 

theft unless the record clearly reflects the value of the stolen property. See 

Ramirez v. State, 422 S.W.3d 898, 901-02 (Tex. App.-Houston [14th Dist.] 2014, 

pet. ref d) (holding defendant not entitled to lesser-included instruction on theft 

based on mere speculation as to stolen property's value.). 

40 
There being no evidence that the total of the property stolen was less than 

$1,500, the trial court did not err in overruling appellant's request for an instruction 

on a lesser-included misdemeanor theft charge. 

We overrule point of error eleven. 

COMMENT ON THE WEIGHT OF THE EVIDENCE 

In the jury charge, the trial court instructed the jury on the law relating to 

criminal conspiracy as follows: 

By the term "conspiracy" as used in these instructions, is meant an 

agreement between two or more persons with intent, that they, or one 

or more of them, engage in conduct that would constitute the offense. 

An agreement constituting a conspiracy, if any, may be inferred from 

acts of the parties. 

The charge did not reference TEX. PENAL CODE ANN. § 15.02(a)(2) (West 2011), 

which requires that "one or more of [the co-conspirators] perform[] an overt act in 

pursuance of the agreement." At trial, and in his twelfth point of error, appellant 

contends that the second sentence above, coupled with the omission of the 

requirement of an "overt act," constitutes a comment on the weight of the evidence 

in violation of article 3 8.05 of the Code of Criminal Procedure. 2 

2 In ruling upon the admissibility of evidence, the judge shall not discuss or 

comment upon the weight of the same or its being in the case, but shall 

simply decide whether or not it is admissible; nor shall he, at any state of 

the proceedings previous to the return of the verdict, make any remark 

calculated to convey to the jury his opinion of the case. 

TEX. CODE CR!M. PROC. ANN. art. 38.05 (West 1979). 

·- 41 
A. Applicable Law 

The trial court must provide the jury with "a written charge distinctly setting 

forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 

(West 2007). Moreover, the trial court may not express "any opinion as to the 

weight of the evidence." Id; Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. 

App. 2007). An instruction, albeit facially neutral and legally accurate, may 

nevertheless constitute an improper comment on the weight of the evidence. See, 

e.g., Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). 

B. Analysis 

In Brown v. State, the trial court instructed, in its original charge to the jury, 

that "intent or knowledge may be inferred by acts done or words spoken." Id. 

Despite the legal accuracy of the instruction, the court of criminal appeals held that 

it improperly "singles out a specific type of evidence and tells the jury that it may 

infer an element of the crime" from that evidence. Id. at 800-01. The error, the 

court explained, "lies in instructing the jury that they may apply such an 

inference." Id. at 800 (quoting Browning v. State, 720 S.W.2d 504, 507 (Tex. 

Crim. App. 1986)). This is because the inference is "a judicial review device" or "a 

common-sense tool for a trial judge" used to gauge evidentiary sufficiency, "not an 

explicit legal tool for the jury." Id at 802-03. The court thus concluded that, 

although a "close call," the trial court erred because it "focus[ed] the jury's 

42 
attention on the type of evidence that may support a fmding of criminal intent." Id. 

at 802. 

The same is true in this case. The court's instruction that "[a]n agreement 

constituting a conspiracy, if any, may be inferred from acts of the parties[,]" is a 

correct statement of the law. See TEX. PENAL CODE ANN. § 15 .02(b) (West 2011 ). 

However, like the instruction in Brown, by referring to an inference that is used for 

judicial review, it "focus[ ed] the jury on the type of evidence" that may support a 

finding of a criminal conspiracy. See Brown, 122 S.W.3d at 802. Thus, we 

conclude that the trial court erred by including the challenged instruction in the 

charge. 

C.Harm 

Thus, we must decide whether the error is harmful. If, as here, the error in 

the charge was the subject of a timely objection in the trial court, reversal is 

required if the error is "calculated to injure ·the rights of the defendant" which 

means that there must be some harm to the accused from the error. Id. at 803 

(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1984)). 

In Brown, the Court of Criminal Appeals concluded that the instruction, 

which is very similar to the instruction in this case, ''was mild, neutral, and an 

obvious common-sense proposition[,]" and did nothing more than what the parties 

43 

I: 

I 

I' 

I 

I 

I, 

I ~ 

I: 
themselves did at trial, i.e., focus on whether appellant's acts and words 

demonstrated his intent to kill. Id. 

Here, the instruction that "a conspiracy may be inferred from acts of the 

parties," like the instruction in Brown, ''was benign, albeit improper," and focused 

the jury on the acts of the parties in forming the conspiracy, just as was done by 

litigants at trial. See id. As such, "the error was not, in any sense, harmful under 

Almanza." See id. 

We overrule appellant's twelfth point of error. 

CONCLUSION 

We affirm the trial court's judgment. 

Sherry Radack 

Chief Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle. 

Do not publish. TEX. R. APP. P. 4 7 .2(b ). 

44