### PD-1498-15
IN THE TEXAS COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

TONYESCOBAR Defendant

- Appellant 

## vs. THE STATE OF TEXAS Plaintiff

- Appellee 

# Appellant's Petition for Discretionary Review OnPetition for Discretionary Review from the First Court ofAppeals No: 01-14-00593-CR

3 38th District Court CauseNumber: 1344348
Wayne T. Hill Texas BarNo: 09656300 4615 Southwest Freeway, Suite 600 Houston, Texas 77027 Phone: (713) 623-8312 IFax: (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 SouthwestFreeway, Suite 600 Houston, Texas 77027 Appellant 

### Tony Escobar

1TABLE OF CONTENTS Identity ofParties and Counsel Table ofContents Index ofAuthorities StatementRegarding Oral Argument Statement ofthe Case Statement ofProcedural History Reasons for Granting Review Summary ofAppellant'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 ofService Word Count Compliance Opinion from First Court ofAppeals

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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 ofEvidence 102 Texas Rules ofEvidence Texas Rules ofEvidence 107 Texas Rules ofEvidence 406 Texas Rules ofEvidence 801(e)(2)(E) Texas Rules ofAppellate Procedure 33.1 Texas Rules ofAppellate Procedure 44.2(a) Texas Rules ofAppellate Procedure 44.2(b) 

### CASELAW Anderson v. State Buchanan v. State Colemanv. State Davis v. Alaska Delaware v. VanArsdall 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 notrequested. STATEMENT OF THE CASE 

### Appellantwastriedfor capital murderinthe deathofRussellLopez
. Thejury found Appellant guilty ofcapital murder as alleged inthe indictment. Appellant's punishment was automatically set at life in prison. STATEMENT OF PROCEDURAL HISTORY 

### Appellant appealed to the First Court ofAppeals. On October 29, 2015, the First Court ofAppeals issued its Opinion affirming Appellant's conviction A copy ofthe Opinion is attached as Appendix "A" This Court granted Appellant's Motion for Extension ofTime to File Petition for DiscretionaryReview until December 30, 2015.

IV

### REASONS FOR GRANTING REVIEW 1. The Court of Appeals decision conflicts with the decision of another Court ofAppeals on the same issue. 2. The Court of Appeals has decided an important question of state or federal lawin a waythatconflictswiththeapplicabledecisions oftheCourt ofCriminalAppeals orthe Supreme Court ofthe United States. 3. The Court ofAppeals has so far departed from the accepted and usual course ofjudicial proceedings, or so far sanctioned such a departure by a lower court, as to call for the exercise ofthe power of supervision by the Court ofCriminal Appeals. 

### SUMMARY OFAPPELLANT'S POSITION ON PETITIONFORDISCRETIONARYREVIEW Appellant brings forward several complaints concerning the Court ofAppeals disposition ofPoints ofErrorraised on original submission. The complaints focus on the limitation of cross examination and the exclusion of evidence, all of which concernedthe State's starwitness, AmberThornton, who was originally chargedwith capital murder, but later received a plea bargain deal which reduced her charge to aggravatedrobbery and made her eligible for probation at sentencing. As the State's starwitness, itwas essentialthatAppellantbe allowedto explore all matters touching
on Thornton's role as a witness.

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### APPELLANT'S FIRST CLAIM FORREVIEW IS THE SIXTHAMENDMENTRIGHT TO CROSS EXAMINE COMPROMISED WHEN THE COURTPLACESLIMITSON THEQUESTIONING OFANEXPERTWITNESSCONCERNING POSSIBLEINFLUENCESAND MOTIVESFORAPROSECUTIONWITNESS TOFABRICATE A STORY. 

### ARGUMENTIN SUPPORT OF APPELLANT'S CLAIMFORREVIEW The State ofTexas prosecuted three individuals as a result ofthe 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 ofthe robbery ofLopez. The State ofTexas 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 thatrobbery and murder had beenpreviouslydiscussedandplannedbythe individuals, andthattheplanwascarried out byAppellant and Facundo. DuringhiscrossexaminationofhomicideinvestigatorClopton,Appellantasked Clopton for his professional opinion whether taking capital murder offthe table and offering aggravated robbery andpossible probation could influence or be a motive to fabricate a story. (R-V-12) The State's objection to speculation and relevance was sustainedbythetrialcourt. Thetrial court'srulingwasupheldbythe Courtof Appeals. In 

### Coleman v. 

### State, 545 

### SW2d 831 (Tex. Crim. App. 

### 1977), this Court noted that animus, motive, orill-will ofaprosecutingwitness whotestifies againstthe defendant
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### is never a collateral or irrelevant inquiry, and the defendant may show byhimself, or byothersifnecessary,whythewitness isunfriendlytowardhim. Thereasoningbehind thisrule is simplythatgreatlatitude shouldbe allowedthe accusedin showingany fact whichwouldtendto establishill feeling, bias, motive and animus uponthepartofany 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 trialjudge should allow the accused great latitude to show any relevant fact that might tend to affectthe witness'scredibility. Virts v. State, 739 SW2d 25 (Tex. Crim. App.1987). 

### Appellant'sjury was not afforded that opportunity. TheCourtof Appealsheldthatbecausetherewas someevidencethatThornton'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 crossexaminationofCloptonis contrarytothe SixthAmendment

### which guarantees the right ofan accused in a criminal prosecutionto be confrontedwiththe witnesses againsthim. Davisv. Alaska, 415 

### U.S. 308 (1974) 

### The Sixth Amendment 

### rightto confrontwitnessesincludestherightto crossexaminewitnesses, toattacktheir general credibilityorto showtheirpossiblebias, self-interest, ormotives intestifying. 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

### credibilitythatrevealspossiblebiases,prejudices, orulteriormotives ofthe witness as they may relate directly to the issues or personalities inthe case at hand. Thus, under Davis, the exposure ofa witness' motivation in testifying is a proper and important function ofthe constitutionally protected right ofcross examination. A defendant's Confrontation Clauserightsare satisfiedwhendefense counselispermittedtoexpose to thejurythe facts from whichjurors
...could appropriately draw inferences relating to the reliability ofthe witness. Hammer v. State, 296 SW3d 555 (Tex. Crim. App. 2009) The Court ofAppeals opinion cited Delaware v. Van Arsdall, 475 U.S. 673 (1986) for thepropositionthat limits canbe placed on cross examination. The record will reveal that the cross examination ofdetective Clopton did not involve issues of harassment,prejudice,confusionof theissues,thewitness' safety, orinterrogationthat
was repetitive or only marginally relevant, so Arsdall is not controlling. Clopton, a twenty-threeyearpoliceveteranwithnineyears experience as ahomicideinvestigator,
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 ifthe witness has sufficient background
...... in a particular field that goes to the very matter onwhichthe witness

4

### is to give an opinion. The focus is onthe "fit" betweenthe subjectmatter 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 informationto establishthe elements ofcapital 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. Thejury should have been allowedtohearwhathadtranspiredbetween Clopton and Thorntonwhichcould have influenced or motivated her into providing the testimony she did against Appellant. A full and fair cross examination ofClopton 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 Amendmentright ofcross examination. Although the Court of Appeals' opinion upheld the limitation placed on Appellant's cross examinationofClopton, itnonetheless evaluatedhowthepurported
errorwasharmless. AppellantsubmitstheCourtof AppealserredwhenitappliedRule 44.2(b) TRAP in its harm analysis. As a claim ofconstitutional error, the correctrule to evaluate harm was Rule 44.2(a) which requires that,the reviewing court must
reverse ajudgmentofconviction orpunishmentunless 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 resultis the same - the limitationplacedonAppellant's cross examinationviolatedthe Sixth Amendment 

### and was harmful. Appellant prays this Court grant discretionary review and order the reversal ofhis conviction and the grant ofa new trial. APPELLANT'S SECOND CLAIM FORREVIEW THE COURT OF APPEALS ERRED WHENIT INTERPRETED THE RULES OFEVIDENCETOUPHOLDTHEEXCLUSIONOFEVIDENCEASSAILING 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 ofwhat was going to happen when the trio (Amber Thornton, JosephFacundo and Appellant) went to the home ofRussell Lopez onDecember 20, 2011. Prior to becoming a cooperating witness for the State ofTexas, Thornton had beeninterrogatedbyhomicideinvestigatorCloptonaboutthe events leadingupto and duringthekilling ofRussellLopez. Hertestimonyprovidedthe State withevidence in support ofits theorythatAppellantknewthatthe objectoftheirtrip was torobLopez. ShealsoprovideddirectproofthatAppellantknew, orshouldhave anticipated,thatthe killing ofLopezwould occur. Forthosereasons, the admission ofThornton'spre-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 ofAppeals noted Appellant's reliance onthese two Rules ofEvidence, butdidnot specificallyholdthathisreliance uponthem 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 ofOptional Completeness. The Court went on to essentially hold (as it did concerning other points oferror) that since thejuryheard Thornton'stestimonyacknowledgingthatshehadpreviouslyliedto Clopton

- thatwas sufficient to give thejurythe gist ofAppellant'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 ofThornton's denial of culpability when first speaking with Clopton was notprovided to thejury. Appellant submitsthat itwas essentialto Appellant'spresentationofhis defense thatthejurybe affordedtheunfilteredexchangebetweenThorntonandCloptoninordertounderstand how Thornton went from claiming ignorance (with Clopton) to becoming the star witness for the State at trial. Thepurposebehindthe Rule ofOptionalCompletenessis toinsurethatthefactfinderhavethebenefitoffull andcompleteinformationrelatingtothetestimonywhich is necessary to fully and fairly explain a matter opened up by the adverse party.

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### Walters v. State, 247 SW3d 204 (Tex. Crim. App. 2007) 

### Thejury only heard the polished version ofThornton's testimony, and was not permitted to hear what had transpiredbetweenherandhomicideinvestigatorCloptonwhichmayhavecontributed to her switching her storyto aidthe State in its prosecution ofAppellant. The court's evidentiary rulings frustrated and prevented Appellant from presenting a full and complete defense in accordancewiththe Supreme Courtholding 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 FourteenthAmendment

### orinthe CompulsoryProcess or Confrontation Clauseof the SixthAmendment,

### theConstitutionguarantees criminaldefendant's ameaningful opportunitytopresenta complete defense. Atbest, Appellantwaspermittedto 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 capitalmurdererto starwitness for the State ofTexas. Appellant submitsthat 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 ofthe 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 ofthe constitutional implications raised by Holmes 

### error, Appellant submitsthatanyharmanalysismustbeperformedinaccordancewithRule44.2(a),

### not

8

### Rule44.2(b) ofthe TexasRules ofAppellate Procedure. Appellanturgesthis Courtto grant discretionaryreview andultimatelyreverse his conviction and order anewtrial. APPELLANT'S THIRD CLAIMFORREVIEW THE COURT OF APPEALS ERRED WHEN IT HELD THAT APPELLANT WAIVEDHISRIGHTPURSUANTTORULE4060FTHERULESOFEVIDENCETO COMPLAIN ABOUT THE EXCLUSION OF EVIDENCE ESTABLISHING THE STATE'S STARWITNESS HAD AHABIT OFLYING TOPOLICE ARGUMENT IN SUPPORT OFAPPELLANT'S CLAIM FORREVIEW 

### The State's star witness, Amber Thornton, was no strangerto the police. Infact, 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 ofAppeals held that Appellant waived his right to complain about Amber Thornton's habit of lying to police because he did not specificallylodge aRule 406 objectionattrial. The Court ofAppeals cited Buchanan
v. State,207 SW3d 772 (Tex. Crim.App.2006) as authorityfor itsholding. Appellant submits thatthe Court ofAppeals misappliedBuchanan, bynot finding that the legal basis for the admission ofthe evidence shouldhave been obviousto the trial court and the prosecuting attorney. The exclusion of this evidence prevented the jury from evaluatingThornton'scredibilitywhichwasparamount,givenherrole asthe State'sstar
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### witness againstAppellant. Whilethejurywas apprised ofThornton'slyingtohomicide investigator Clopton in the instant case, it did not have the benefit ofknowing that Thornton had donepreciselythe samethingwhenpreviouslyconfrontedbythepolice in another investigation. Rule 102 ofthe Rules ofEvidence provides that the rules shouldbe construed
so as to administer everyproceeding fairly; eliminate unjustifiable expense and delay, andpromote the development ofevidence law, to the end ofascertaining the truth and securing ajust determination. Rule 103 TRE, as well as Rule 33.1 of the Rules of AppellateProcedure, setforththerulesfor errorpreservation

-withauniqueexception forthoseinstanceswherethe specific grounds forthe complaintwere apparentfromthe context. Rule 406 ofthe Rules ofEvidence provides that evidence ofa person's habit..
.... may be admittedto prove that on a particular occasionthe person..... acted in accordance with the habit or routine practice. The court may admit this evidence regardless ofwhether it is corroborated orwhetherthere is an eyewitness. In order for the proponent to offer evidence ofhabit, the proponent must at least demonstrate a regularpractice ofmeetingaparticularkindofsituationwitha specifickindofconduct. Anderson v. State, 15 SW3d 177 (Tex. App. - Texarkana 2000, no pet.) Rule 406 mandates that evidence ofhabit is relevant to prove that the conduct ofthe person or accusedonaparticularoccasionwas inconformitywiththehabit. Millerv. State, 882

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### SW2d 936 (Tex. App.

- Beaumont 1994). This is what occurred in the instant case - when she wasconfrontedwithpoliceinterrogation, Thornton's defaultposition(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 interactedwithlawenforcementwhen confrontedbythem. This Courthas statedinthe pastthat "we should avoid splitting hairs when determining whether a claimhas been procedurally defaulted". 

### Keeter v. State, 175 SW3d 756 (Tex. Crim. App. 2005). Appellant submitsthatthe legalreasonbehind seeking admission ofthis evidence was obvioustothetrialcourtandopposingcounsel, andthus, the complaintwas sufficiently preserved for appeal. Appellant prays this Court grant discretionary review and enter
an order consistentwiththe issue raised herein. 

### PRAYERFORRELIEF WHEREFORE,PREMISESCONSIDERED,AppellantpraysthattheHonorable Court consider the issues raised herein and grant discretionary review, or such other relief,includingremandtothe CourtofAppealsforconsiderationofissuesasthis Court deems appropriate.

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### Respectfully submitted

Wayne T. Hill SBOT: 09656300 4615 SouthwestFreeway, Suite 600 Houston, Texas 77027 Tel: (713) 623-8312 Fax: (713) 626-0182 Attorney for Tony Escobar

CERTIFICATE OF SERVICE & 

### WORD COUNT COMPLIANCE 

### Onthis 28th day ofDecember, 2015, I hereby certifythat a true and correct copy ofthis Petitionfor DiscretionaryReviewhasbeenmailedtothe Harris CountyDistrict Attorney's Office and the State Prosecuting Attorney. This Petition complieswithRule 9. 4 ofthe Texas Rules ofAppellate Procedure containing 2826 words based onthe computer generatedprogramusedto prepare this document.

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# APPENDIX "A" Memorandum Opinion In the Court ofAppeals for the First District OfTexas Tony Escobar v. State ofTexas No: 01-14-00593-CR Opinion issued October 29, 2015·'
Opinion issued October 29, 2015.

In The
ForThe

NO. 01-14-00593-CR
TONYESCOBAR,Appellant 

## v. THE STATE OF TEXAS, Appellee
OnAppeal 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 ofDecember 20, 2011, Russell Lopez was at home taking
care ofhis 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 offwork 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 Tahoewas 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 ofthe 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 ofblood on
2the floor ofthe 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 ofwater within a wooded area near Katy. The part ofthe 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 ofthe 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 30 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" ofthe 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 themto go to the back room. Appellant setthe laptop on the table and grabbed the cocaine. Then Facundo pulled the hammer out ofhis 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.
4Thornton 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. Thenthey drove the Tahoe tothevacanthouse 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 ofthejewelry 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 laterprovidedthe stolen safeto Sergeant Clopton. Roger Milton, Jr., Assistant Medical Examiner for Harris County, testified regarding Lopez's autopsy results. Milton explained that Lopezhad extensive blunt and sharp force injuries primarily ofhis head and neck region and some on the
5front 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 chestthat went through his lung. Milton testified that
a sword shown to him (State's exhibit No. 94) was capable ofinflicting 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 ofdeath) or even postmortem injury. Milton ·opined that the complainant's cause of death was multiple blunt and sharp force injuries ofthe head, neck, and chest. He determined that the manner ofdeath was homicide. Lopez's son, Caden, testified that on the evening ofDecember 20, 2011, he
saw his father sitting atthe 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 "IfI hear a noise, I'm going to bring
a dog inhere." After the man left, Caden**~racked** the bedroom door open and saw
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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 ofappellant. The jury found appellant guilty of capital murder as charged m the indictment. B. 

### Issues 

### onAppeal Appellant brings the following twelve issues on appeal: 1. The evidence is insufficient as a matter of law to sustain thejury's verdict fmding the appellant guilty ofcapital murder beyond a reasonable doubt. 2. The trial court erred when it denied appellant's motion for instructed verdict ofnot guilty atthe end ofthe 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.

76. The trial court erred when it refused to allow appellant to establish what questions Sergeant Clopton asked Amber Thornton during her interview with him onDecember 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) ofthe Texas Rules ofEvidence. 8. The trial court erred when it refused to admitAmber Thornton's statementto Sergeant Clopton under the Rule ofOptional 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 itrefused appellant's requestedjury instruction on necessity. 11. The trial court erred when it refused appellant's request for ajury instruction onthe lesser offense oftheft. 12. The trial court erred when it commented on the weight ofthe evidence inthe instructions given to thejury concerning the law ofconspiracy. SUFFICIENCY OF THE EVIDENCE In his first two points, appellant challenges the sufficiency ofthe evidence to supporthis capital murder conviction. 

### A. Standardof Review andApplicableLaw A person commits capital murder "ifthe person commits murder as defmed under Section 19.02 

### (b)(1)" i.e., intentionally or knowingly causing the death ofan 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 ofthe victim can nonetheless be convicted ofcapital murder under section 7.02 ofthe Texas Penal Code, whichprovides: (a) A person is criminally responsible for an offense committed by the conduct ofanother if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conductprohibitedbythe definition ofthe offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the otherpersonto committhe offense; or (3) having a legal duty to prevent commission ofthe offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission ofthe offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one ofthe conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance ofthe unlawful purpose and was one that should have been anticipated as a result ofthe carrying out ofthe conspiracy. TEX. PENAL CODEANN. § 7.02 (West 2011). Whenreviewing the sufficiency ofthe evidence, we view all ofthe evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements ofthe offense beyond a reasonable doubt. 

### Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
9Adames 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 ofthe 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. refd) (statingjury can choose to disbelieve witness even when witness's testimony is uncontradicted). We may not re-evaluate the weight and credibility ofthe evidence
or substitute ourjudginent for thatofthe 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 inthe 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 infavor ofthe 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 ofthe Code ofCriminal 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 ifit merely shows the commission of the offense." TEx. CODE CRIM. PROC. ANN. art. 38.14 (West 2013). To measure the sufficiency ofnon-accomplice evidence, the reviewing court disregards the accomplice-witness testimony and then examines the remainingportions ofthe record to see whether there is any evidence thattends 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 notbe 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 ofthe accused in the company ofthe accomplice during the commission ofthe offense is alone insufficient to corroborate the accomplice-witness testimony; however, the presence ofthe 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 ofcorroboration." 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 carto ''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 ofthe vehicle had been burned. Appellant also admitted that he received approximately $1,000 as his share ofthe 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 oftwo or more individuals was obtained from the scabbard of the sword used to stab the complainant, and appellant could not be

12excluded as a possible contributorto 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 ifacting with intent to promote or assist the commission ofthe 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 ofthe 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 38.14 ofthe Texas Code ofCriminal Procedure provides that a conviction cannot be had upon the testimony ofan accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient ifitmerely shows the commission ofthe offense.

13In 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 aprior agreement with appellant and Joseph Facundo to rob and murderthe 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 "arational trier offact 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
14aggravated robbery, and (4) appellant should have anticipated that capital murder could occur as a result ofthe 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. refd). 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 aggravatedrobbery The Texas Penal Code defines robbery as: in the course ofcommitting 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 ofimminent 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).

15Thejury was instructed that conspiracy means "an agreement between two
or more persons with intent that they, or one or more ofthem, engage in conduct that would constitute the offense." TEX. PENAL CODEANN. § 15.02(a) (West 2011); Hooper v. State, 255 S.W.3d 262, 265-66 (Tex. App.-Waco 2008, pet. refd). The court may lookto events occurring before, during, and after the commission ofthe offense as evidenced ofcriminal responsibility under the law ofparties. 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 beproven by words, the State often must rely onthe actions ofthe parties, shown by direct or circumstantial evidence, to establish an understanding or a
common design to committhe offense."). There is evidence ofsuch 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 aprior 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 ofselling him a laptop. Once inside, Facundo would strike the complainant in the head with a hammer, appellant would tie up the children, and

16they would steal the complainant's property. Thornton also testified that they also had aplanto sell the stolenproperty afterwards. Thornton's testimony establishes that appellant contributed to the execution oftheir 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 helpedtransport the stolenproperty to the attic ofa vacant house; and (7) he and Thornton later retrieved a stolen safe from the attic and took it to David Tillman who openedthe safe. 2. Evidence thatcapitalmurderwas committedby 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 thatRussellLopezwas killedin 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 ofaplanned robbery. There is no
17evidence 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 ofthe conspiracy to commit aggravated robbery. 

### 4. Evidence thatappellantshouldhave anticipatedcapitalmurder Testimony from Thornton showed that appellant was aware that Facundo intended to strike the complainant in the head with ahammer 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 ahammer 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 thejury's verdict, a rational trier offact could have found beyond a reasonable doubt that appellant was criminally responsible as aparty to the capital murder. We overrulepoints oferror one and two.

18RULE 401 & 403 OBJECTIONS Inpoint oferror three, appellant claims thatthe trial court erred in admitting the 911 tape. In point oferror four, appellant contends that the trial court erred in

... .... ........ admitting numerous autopsy photographs. 

### A. Standardof Review andApplicableLaw 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 ofconsequence 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 ofcumulative evidence. TEX. R. Evm. 403. An abuse ofdiscretion 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 ofthe 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 ofdiscretion 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
19reveals 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 ofthe body and the police coming outto the scene, and that, in light ofthat other evidence, the evidence contained on the 911 tape was redundant and irrelevant. 911 tapes are generally admissible under Rules 401 and 403, even ifnot 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. refd).

20In 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 overrulepoint oferror three. 2. AutopsyPhotographs 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 ofcomplainant'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 ofunfairprejudice. 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 .. I1995). A photograph is relevant if it has "any tendency to make the existence of any fact that is ofconsequence to the determination ofthe action more probable or less probable than itwould be without the evidence." 

### See TEX. 

### R. Evm. 401. "The identity ofthe victim and the manner and means ofdeath 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. refd) (holding that photographic evidence was admissible even ifit merely corroborated other evidence). Overall, the photograph must be helpful to thejury: "Ifthere are elements ofa photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only ifthe 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 ofLopez 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 ofthe complainant's injuries. The medical examiner testified that the autopsy photographs ofLopez's injuries were 22relevant 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 ifthe 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 ofunfair 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 ofthe 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 examinertestified wereprobative ofthe manner and method ofthe Lopez's death. Accordingly, appellant has not demonstrated that the trial court abused its discretion by admitting thephotographic evidence. We overrule point oferror four.

23CROSS 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. Theprohibited line ofquestioning includedthe 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 experiencedhomicide investigator. [Prosecutor]: Speculation as to what motivation it might have to anotherperson. [Trial Court]: Sustained. 

### A. Standardof Review andApplicableLaw 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)' ifits 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 24was 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 theirpossible 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 endant 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 ofwitness by evidence ofalleged 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 ofany 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 ofpermissible cross-examination is "necessarily broad." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). "A

25defendant is entitled to pursue all avenues of cross-examination reasonably calculatedto 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 ofinquiry." Smith v. State, 352 S.W.3d 55, 64 (Tex. App.-FortWorth 2011, no pet.) "[T]rialjudges 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, thetrial judgehas wide discretion in limiting the scope and extent ofcross-examination."). 

### B. Analysis Even ifwe 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).
26Appellant claims that the prohibited line ofcross-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 ofdeath or life without the possibility ofparole. Thornton admitted that the original charge ofcapital murder was later reducedto a charge ofaggravated 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, thejury could have believed that the reduced charge could affect Thornton's credibility, even without expert opinion testimony from Sergeant Clopton. We overrulepoint oferror five. EXCLUSION OF EVIDENCE In three points oferror-six, seven, and eight-appellant complains that the trial court erroneously excluded evidence ofthe 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 ofEvidence 80l(e)(2)(E) as a statement by a co-conspirator during the

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

### A. Standardof Review Rule 801(e)(2)(E) ofthe Texas Rules ofEvidence allows the introduction of
a conspirator's statement ifmade during and in furtherance ofthe conspiracy. The rationale for this rule is based on the concept that "a conspiracy is
.a common undertaking where the conspirators are all agents ofeach other and where the acts and statements ofone can be attributed to all." Byrdv. State, 187 S.W.3d 436, 440 (Tex. Crim. App. 2005) (quoting Bourjaily v. UnitedStates, 483 U.S. 171, 188-94 (1987)). Consequently, the conspirators are imbued with a degree of trustworthiness in light oftheir lack ofincentive 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 ofOptional Completenessprovides 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 betweenthe sameparties may be given.
28TEX. 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 ofthe rule "is to reduce the possibility ofthe 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 ofthe 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 ofthe existence ofthe conspiracy. Appellant cites to 

### King v. State, 189 S.W.3d 347 (Tex. App.-FortWorth 2006, no pet.), 

### illwhich 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, thejury was entitled to the benefit ofthe whole of her statement under the Rule ofOptional Completeness. Appellant states that the
29jury was deprived ofthe full flavor ofthe 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 "thejury 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, ifany 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 presenthis case to the extent and in the form he desired is notprejudicial where, as here, he was not prevented from presenting the substance ofhis defense to thejury. 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 ofthe statement
was not necessary for thejuryto fully understand that Thornton had previously lied to the police about her involvement in a plan to rob and murder Lopez. Thejury
30was also made aware that Thornton had pleaded guilty to a reduced charge after she agreed to testify against her co-defendants. As such, exclusion ofthe 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 ofthe 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 oferror six, seven, and eight. EXLUSION OF EVIDENCE OF HABITAND ROUTINE Inpoint oferror nine, appellant contents the trial court erred by refusing to permit cross-examination ofAmber 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 thatthe evidence shouldhave been admissible
as evidence ofhabit under Texas Rule ofEvidence 406, whichprovides: Evidence ofa person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or 31organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated orwhether 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 ifthe 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 ofhabit. Thus, appellant has waived the right to raise this complaint on appeal. We overrulepoint oferrornine. JURY INSTRUCTION ON NECESSITY

32Inpoint oferror ten, appellant contends the trial court erred when it refused his requestedjury 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 offear ofhis co-defendant, Facundo. A. Standardof Review andApplicableLaw Generally, a defendant is entitled to ajury 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. refd); Miller v. State, 940 S.W.2d 810, 812 (Tex. App.-Fort Worth 1997, pet. refd). Ifa defendant produces evidence raising each element ofa requested defensive instruction, she is entitled to the instruction regardless ofthe source and strength ofthe 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 ofwhat the trial court may or may not think about the credibility ofthe 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
33instruction 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 thejury 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 ajustification. 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 imminentharm; (2) the desirability and urgency of avoiding the hann clearly outweigh, according to ordinary standards ofreasonableness, 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 otherwiseplainly 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 isjustified 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 ajury instruction onthe defense ofnecessity. 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 thepoint ofhappening, not about to happen. Jackson v. State, 50 S.W.3d 579, 594- 95 (Tex. App.-FortWorth 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 at273.

35Second, a defendant must present evidence that he reasonably believed the criminal conduct was immediately necessary to avoid the imminentharm. See TEX. PENAL CODE ANN. § 9.22(1); Brazelton, 947 S.W.2d at 648. "Reasonable belief'
means a beliefthat 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 offact, and shouldbeviewed from the accused's standpoint atthe time he acted. Fitzgeraldv. 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. refd). 

### 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 ofnecessity to preserve his own life because [a co-defendant] said he would kill [the intended robbery victim] and Murkledove feared that ifhe 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 ifhe did not
36assist with the break-in. Even if one could infer that Murkledove feared the possibility ofor potential hann to himselfor 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 ofharm 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 oferror ten. JURY INSTRUCTION ON LESSER-INCLUDED OFFENSE OF THEFT In his eleventh point oferror, 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 oftheft ofproperty ofthe 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 ofproperty is classified as a Class A misdemeanor ifthe value ofthe stolen property is $500 or more, but less than $1,500. TEX. PENAL CODE ANN. § 31.03(e)(3) (West Supp. 2014). 37Specifically, appellant pointed to evidence in his own statement to police in which he stated thathe received less than $1,000 from what was taken from Lopez. A. Standardof Review andApplicableLaw We review the trial court's decision on the submission ofa lesser-included offense for an abuse ofdiscretion. 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 thetrial 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 ofthe
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). Ifit 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 ofonly the lesser-included
38offense. 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 ofevidence 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 ofthe evidence in the light most favorable to the requested lesser-included offense, regardless of whether the evidence was produced.by the State orthe 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 "ifhe unlawfully appropriates property with intent to deprive the owner ofproperty." 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 ofthe first degree. See id. § 31.03(e). With few exceptions not applicable here, the only element distinguishing one grade oftheft from another is the value ofthe property taken. See id. Under Texas law, the value ofthe property taken is an essential element ofthe 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.

39Crim. 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 ofthe test for lesser-included offenses, i.e., there is no evidence that would permit ajury to rationally find that if the defendant is guilty, he is guilty ofonly a theft ofless than $1,500. Although appellant told the officer that his share ofthe 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 oftelevisions, 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 ofthe stolen property was less than $1,000, even ifhepersonally received less. A defendant is not entitled to an instruction ofthe lesser-included offense of theft unless the record clearly reflects the value of the stolen property. See Ramirezv. State, 422 S.W.3d 898, 901-02 (Tex. App.-Houston [14th Dist.] 2014, pet. refd) (holding defendant not entitled to lesser-included instruction on theft based on mere speculation as to stolenproperty's value.).

40There being no evidence that the total ofthe property stolen was less than $1,500, thetrial court did not err in overruling appellant's request for an instruction
on a lesser-includedmisdemeanortheft charge. We overrulepointoferror eleven. COMMENT ONTHE WEIGHT OF THE EVIDENCE In thejury 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 ofthem, engage in conduct that would constitute the offense. An agreement constituting a conspiracy, 

## if any, may be inferred from acts of theparties. The charge did not reference TEX. PENAL CODE ANN. § 15.02(a)(2) (West 2011), which requires that "one ormore of [the co-conspirators] perform[] an overt act 

### in pursuance ofthe agreement." At trial, and 

### in his twelfth point oferror, appellant contends that the second sentence above, coupled with the omission of the requirement ofan "overt act," constitutes a comment onthe weight ofthe evidence inviolation ofarticle 38.05 ofthe Code ofCriminal Procedure.2

2 In ruling upon the admissibility ofevidence, thejudge shall not discuss or comment upon the weight ofthe 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 calculatedto conveyto thejuryhis opinion ofthe case. TEX. CODE CR!M. PROC. ANN. art. 38.05 (West 1979).



## ·- 41A.ApplicableLaw The trial court mustprovide thejury 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 ofthe 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 ofthe evidence. See, e.g., Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). B. Analysis InBrown v. State, the trial court instructed, in its original charge to thejury, that "intent or knowledge may be inferred by acts done or words spoken." Id. Despite the legal accuracy ofthe instruction, the court ofcriminal appeals held that it improperly "singles out a specific type ofevidence and tells thejury that it may infer an element ofthe 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 "ajudicial review device" or "a
common-sense tool for a trialjudge" 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
42attention on the type ofevidence that may support a fmding ofcriminal 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 ofthe parties[,]" is a correct statement ofthe law. See TEX. PENAL CODEANN. § 15.02(b) (West 2011). However, like the instruction inBrown, by referring to an inference that is used for judicial review, it "focus[ed] thejury on the type ofevidence" 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 (citingAlmanzav. 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 intentto 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 thejury on the acts ofthe 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 oferror. CONCLUSION We affirm the trial court'sjudgment.

Sherry Radack ChiefJustice Panel consists ofChiefJustice Radack and Justices Bland and Huddle. Do notpublish. TEX. R. APP. 

### P. 4 7.2(b).

44