Affirmed and Memorandum Opinion filed April 23, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00988-CR

DARIAN BLOUNT, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 230th District Court 

Harris County, Texas 

Trial Court Cause No. 1517279 

M E M O R A N D U M O P I N I O N

Appellant Darian Blount appeals his conviction for aggravated robbery, 

raising six issues. First, appellant argues the evidence is legally insufficient to 

support his conviction. We overrule this issue because the record contains 

sufficient evidence for a reasonable jury to have found beyond a reasonable doubt 

that appellant was criminally responsible as a party to the charged offense. 

Second, appellant contends that the trial court erred in failing to submit three lesser 

included offenses in the jury charge. Because appellant failed to present any 
2

affirmative evidence directly germane to any of the lesser included offenses 

appellant contends were wrongly excluded, we hold that no charge error exists on 

this record. Finally, appellant challenges two evidentiary rulings, but we 

determine upon review of the record that appellant has not established an abuse of 

discretion as to either ruling. 

We affirm the trial court’s judgment. 

Background 

A Harris County grand jury indicted appellant for the felony offense of 

aggravated robbery. The State alleged that appellant, while in the course of 

committing theft of property owned by the complainant, Moses Malone, Jr., and 

with the intent to obtain and maintain control of the property, intentionally and 

knowingly threatened and placed Malone in fear of imminent bodily injury and 

death. The State further alleged that appellant used and exhibited a deadly 

weapon, specifically a firearm, in the commission of the offense. Appellant 

pleaded not guilty, and the case proceeded to a jury trial. 

The alleged offense occurred shortly after 2:00 a.m. in the parking lot of an 

after-hours strip club known as V Live.1 The State’s version of events begins the 

day before, so we start there. Malone posted on his Facebook account a picture of 

NBA basketball player James Harden promoting Harden’s youth basketball camp. 

The promotional picture indicated a cost of $249 per child for the two-day camp. 

Malone’s caption stated: “Don’t he [Harden] make WAY more $ than Donald 

Driver??? But he charging 249$ & The inner city kids have NO CHANCE to go to 

his camp. Hollywood Harden [emoji emoji emoji emoji] #Fact”. 

 

1 Witnesses explained that “after-hours” means that the club opens at 2 o’clock in the 

morning and closes at 6 o’clock in the morning.
3

Shortly thereafter, Malone’s security guard, John Thomas, called Malone to 

tell him that Harden was upset about the Facebook post. Malone deleted the post 

that same morning. Later that day, according to Malone, he received a text 

message allegedly from Harden, sent on a mutual friend’s phone. The text 

message read, “Aye listen my [expletive]. If you got something to say. We not 

doing no social media. I will pull up wherever you at and see what’s going on. 

You a [expletive] [expletive] Fa real for even goin on Facebook talking shit. 

[Expletive] boy.” 

The next night, Malone and Thomas drove to V Live. Malone was a regular 

patron at the club, and he was familiar with appellant, who worked as the club’s 

head of security. 

After leaving his car, Malone saw appellant walking toward him and leading 

a group of ten to fifteen men. The group approached and circled Malone and 

Thomas. Appellant “got in [Malone’s] face” and told Malone not to talk about 

Harden on Facebook. Appellant warned Malone that Malone was “going to end up 

dead out here.” Malone then saw three men pull out guns, and a fourth person had 

a gun out as well. 

Malone testified that he “smirk[ed]” or “smiled on them,” and “that’s when 

[appellant] did it, he said get him.” One of the men—later identified as Oscar 

Wattell—punched Malone, ripped his earrings out, went through his pockets, and 

took a chain from around Malone’s neck. Another man—later identified as Kavon 

Boutte—also punched Malone and took a chain. Malone fell to the ground, where 

he was kicked. As he was being kicked in the face, Malone heard appellant say 

“punch that [expletive], kick that [expletive]. He got to learn. He got to learn. 

Punch that [expletive]. Kick that [expletive].” Malone also heard appellant tell 

someone to get his phone. 
4

According to Malone, both Wattell and Boutte exhibited guns during the 

robbery, but appellant did not. Although appellant did not have a weapon, Malone 

testified that appellant was in charge of the group that robbed Malone, saying “he 

brought those guys to me.” 

Afterward, the group dispersed and appellant entered the club. Thomas 

followed a couple of the men to the back of the parking lot and was able to recover 

Malone’s car keys, ID, and credit card, which he returned to Malone. Using 

Thomas’s cell phone, Malone called 911. Houston Police Department Officer Eric 

Bettinger was the first officer to arrive. Officer Bettinger testified that Malone had 

redness and scratches on his jaw, and one of his earlobes was bleeding. Malone 

told Officer Bettinger that the following property had been taken from him: a 

David Yurman rope chain and diamond pendant, worth $20,000; a gold Versace 

rope chain, worth $2,000; a David Yurman rope chain, green diamond pendant, 

worth $20,000; David Yurman gold and diamond earrings, worth $4,000; an Apple 

iPhone 6, worth $700; Louis Vuitton sunglasses, worth $1,000. 

Given the reported value of the stolen items, Officer Bettinger contacted the 

department’s Robbery Division and was told “to basically shut the club down. 

Don’t let anybody in. Don’t let anybody out.” Officer Bettinger estimated that 

there were approximately 200 to 400 people inside the club that night. Harden, 

who was inside the club during the events, attempted to leave through the back 

door, but Officer Bettinger told him to stay in the club. 

Detective Sergeant Tony Mora was the robbery detective on call that night, 

and he took command of the scene as the lead investigator. The police allowed 

women to leave unimpeded, but required male patrons to leave one-by-one so 

Malone could identify anyone as a possible suspect. Malone identified Wattell and 

Boutte as two of the men involved in the robbery. In total, the police documented 
5

227 men leaving the club, but appellant was not one of them. Malone also 

identified someone he believed was appellant’s brother, who Malone said was not 

involved in the robbery but might have information of appellant’s whereabouts. 

Sergeant Mora decided to not search patrons as they exited the club, 

preferring instead to clear the premises as quickly as possible. Sergeant Mora did 

not believe he had grounds to search any vehicles in the parking lot, either. The 

police officers searched the club for any weapons “in obvious plain view,” but 

ultimately did not recover any guns. The police also were unable to obtain any 

video surveillance recordings. 

Although appellant was not at the scene when police arrived, Malone gave 

Sergeant Mora appellant’s name; also, Malone and Thomas identified appellant 

from a photo array administered by Sergeant Mora. A few weeks later, Sergeant 

Mora called appellant to hear his side of the story. Sergeant Mora recorded the 

phone call, which was introduced into evidence and played for the jury. Appellant 

said that he encountered Malone in the parking lot, approached him “in a 

professional manner” to tell appellant not to talk about Harden, and then appellant 

went inside the club. Once inside, some members of the club’s security team 

alerted appellant to a fight outside. According to appellant, he returned to the 

parking lot to break up the fight. Sergeant Mora said that he did not believe 

appellant’s version of events after speaking with him on the phone. 

However, appellant said several things that to Sergeant Mora supported 

Malone’s stated motive—i.e., that appellant participated in the robbery in 

retaliation for Malone’s Facebook post about Harden. For instance, appellant said 

that Harden spent more money than Malone at the club, which indicated to 

Sergeant Mora that appellant considered Harden a more significant customer than 

appellant. Further, appellant admitted that he confronted Malone about discussing 
6

appellant’s customers on social media, which Sergeant Mora thought “lend[ed] 

credibility to the motivation that was expressed by [Malone].” 

Other witnesses testified about their knowledge of events. Thomas 

corroborated Malone’s testimony regarding the armed robbery, including 

appellant’s role. According to Thomas, appellant led toward Malone a group of 

ten to twelve men, five of whom were armed with guns. Appellant told Malone 

not to talk about Harden, and then appellant said “get ‘em.” The men punched and 

kicked Malone. Thomas confirmed that Malone wore jewelry that night but, after 

the incident, Malone was no longer wearing jewelry and his ears were bleeding. 

Thomas also testified that he entered the club after the robbery and saw appellant 

“and the same dudes that did the situation . . . went to a section that James Harden 

was on . . . [a]nd they all over there high-fiving each other.” 

Imaine Molo, the club’s floor manager, corroborated Malone’s testimony 

that Harden used her phone to send Malone a text message about the Facebook 

post. Molo, who was at the club the night of the robbery, said that she did not 

witness the robbery, did not have any information about the robbery, and did not 

see either appellant or Malone that night. 

Eric Dillard, the club’s DJ, testified that when he arrived at the club, he saw 

appellant, Malone, and Thomas “talking loud.” Dillard said he thought the men 

were talking about money that Malone owed the club, but Dillard did not actually 

hear the substance of the conversation before going inside.2

 Dillard did not see 

appellant or anyone else touch or punch Malone. Dillard denied that appellant had 

 

2 Malone told Sergeant Mora that Dillard recorded the robbery on his phone. At Sergeant 

Mora’s request, Dillard voluntarily relinquished his phone. Upon review of the phone’s 

contents, Sergeant Mora did not find any pertinent recordings. Dillard made a phone call to 

Molo around the time of the robbery, but both Molo and Dillard denied knowledge of any fight 

or robbery.
7

anything to do with Malone being robbed outside the club. Both Molo and Dillard 

testified that Malone never wore jewelry to the club. 

Chris Chizer, the club manager, testified that he and Malone had a physical 

alteration once regarding money Malone owed the club. Chizer did not see 

Malone or appellant the night in question. Chizer did not know what occurred 

outside, who was involved, how many people were involved, or if anyone had 

weapons. 

Marvin Ferguson, a club employee, testified that he saw Malone try to enter 

the club, but appellant told Malone that he could not enter. At that point, Ferguson 

went inside. Ferguson denied seeing appellant or anyone else confront or rob 

Malone. 

Finally, Gary Womack testified. He contradicted Malone’s prior testimony 

that Malone had not been drinking the night of the robbery. According to 

Womack, Malone had been drinking while attending Womack’s wife’s birthday 

party earlier in the night. Womack went to V Live after his wife’s party, but he did 

not see any altercation between Malone and appellant. 

The trial court submitted the charge to the jury, asking whether appellant 

was guilty of aggravated robbery or the lesser included offense of aggravated 

assault. The charge allowed the jurors to find appellant guilty as a principal actor, 

as a participant under the law of parties, or as a participant in a conspiracy. The 

jury found appellant guilty of aggravated robbery. After a punishment hearing, the 

trial court sentenced appellant to thirty-five years in prison. 

Appellant timely appeals. 
8

Analysis 

Appellant presents six issues for our review. First, he challenges the 

sufficiency of the evidence. In his second, third, and fourth issues, appellant 

contends that the trial court reversibly erred in refusing to instruct the jury in the 

charge on three lesser included offenses. And in his last two issues, appellant 

argues that the trial court abused its discretion in two evidentiary rulings. 

A. Sufficiency of the Evidence 

In his first issue, appellant argues that the evidence is legally insufficient to 

sustain his conviction for aggravated robbery. We address this issue first because 

success would afford him the greatest relief. See Finley v. State, 529 S.W.3d 198, 

202 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). 

1. Standard of review and applicable law 

Reviewing courts apply a legal-sufficiency standard in determining whether 

the evidence is sufficient to support each element of a criminal offense that the 

State is required to prove beyond a reasonable doubt. Temple v. State, 390 S.W.3d 

341, 360 (Tex. Crim. App. 2013); Pena v. State, 522 S.W.3d 617, 620 (Tex. 

App.—Houston [14th Dist.] 2017, pet. ref’d). Under this standard, we consider the 

combined and cumulative force of all admitted evidence and any reasonable 

inferences therefrom in the light most favorable to the verdict to determine whether 

a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 

(Tex. Crim. App. 2017). Direct evidence and circumstantial evidence are equally 

probative, and circumstantial evidence alone may be sufficient to uphold a 

conviction, so long as the cumulative force of all the incriminating circumstances 

is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. 

Crim. App. 2015). 
9

The jury is the sole judge of credibility and weight to be attached to the 

testimony of witnesses. Temple, 390 S.W.3d at 360. We defer to the jury’s 

responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw 

all reasonable inferences from the evidence in favor of the verdict. Kolb v. State, 

523 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see also

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a 

sufficiency review, we do not engage in a second evaluation of the weight and 

credibility of the evidence, but only ensure the jury reached a rational decision. 

Kolb, 523 S.W.3d at 214. We will uphold the jury’s verdict unless a rational 

factfinder must have had a reasonable doubt as to any essential element. Laster v.

State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). 

The jury found appellant guilty of aggravated robbery. A person commits 

the offense of robbery if, in the course of committing theft3 and with intent to 

obtain or maintain control of the property, the person: (1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or 

knowingly threatens or places another in fear of imminent bodily injury or death. 

Tex. Penal Code § 29.02(a). A person commits the offense of aggravated robbery 

if he commits robbery and, inter alia, uses or exhibits a deadly weapon. Id.

§ 29.03(a)(2). 

Texas recognizes that any party to an offense may be charged with 

commission of the offense. See id. § 7.01(a), (b); Cary v. State, 507 S.W.3d 750, 

757 (Tex. Crim. App. 2016). A person is criminally responsible as a party to the 

offense “if the offense is committed by his own conduct, by the conduct of another 

for which he is criminally responsible, or by both.” Tex. Penal Code § 7.01(a). A 

 

3

 Theft is the unlawful appropriation of property with the intent to deprive the owner of 

the property. Tex. Penal Code § 31.03(a). 
10

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

another person 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. Id. § 7.02(a)(2); Gross v. State, 380 S.W.3d 181, 186 (Tex. 

Crim. App. 2012). 

2. Application 

The jury returned a general verdict, and we will uphold the jury’s verdict if 

the evidence is sufficient to prove appellant committed the offense either as a 

primary actor or as a party criminally responsible for the conduct of another person 

who committed the offense. See Humaran v. State, 478 S.W.3d 887, 896 (Tex. 

App.—Houston [14th Dist.] 2015, pet. ref’d); Head v. State, 299 S.W.3d 414, 426 

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). There is no evidence that 

appellant used or exhibited a firearm during the course of the robbery. 

Accordingly, we agree with appellant that no evidence supports appellant’s 

conviction for aggravated robbery as a principal actor. 

However, the jury may have found appellant guilty because he was 

criminally responsible for the offense of aggravated robbery committed by others, 

so we examine the evidence to determine whether the verdict is sustainable under 

party liability. To establish that appellant committed the offense of aggravated 

robbery under the law of parties, the State had to prove that another person 

committed the offense of aggravated robbery, and that appellant, with the intent to 

promote or assist the commission of the offense, solicited, encouraged, directed, 

aided, or attempted to aid others to commit the offense, including the aggravating 

element of using or exhibiting a deadly weapon. See Stephens v. State, 717 S.W.2d 

338, 340 (Tex. Crim. App. 1986); see also Sears v. State, No. PD-0264-17, 2018 

WL 4347878, at *4 (Tex. Crim. App. Sept. 12, 2018) (not designated for 
11

publication) (to secure conviction under law of parties, the State “must 

demonstrate that the defendant intended to promote the full offense, including the 

aggravating element, before or during the commission of the offense”)4; Sarmiento 

v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) 

(“[W]here the use of a deadly weapon is an element of the offense, [to convict a 

defendant for aggravated robbery as a party,] the State automatically carries the 

burden of proving the defendant knew a weapon would be used or exhibited in the 

commission of the offense.”). 

Appellant argues that the jury’s verdict cannot stand on a theory of party 

liability because the State failed to prove that appellant was criminally responsible 

for the aggravating element—i.e., that appellant knew that the other assailants 

would use or exhibit firearms during the robbery. Contrary to appellant’s 

contention, however, the jury reasonably could have concluded based on the 

evidence presented that appellant intended to promote the full offense, including 

the aggravating element, before or during the commission of the offense. 

Malone testified that appellant led a group of males, several of whom had 

firearms, toward Malone when Malone arrived at the club. Malone said that 

appellant confronted Malone about Malone’s Facebook post. When Malone 

smirked at appellant, appellant said, “get him.” Malone heard appellant tell the 

other assailants to punch and kick Malone because Malone needed “to learn.” At 

appellant’s direction, several of the men punched Malone, ripped his earrings out 

and his chains off, and kicked Malone when Malone fell to the ground. Malone 

also heard appellant instruct one of the men to take Malone’s phone. Malone said 

that he was “scared[,] . . . upset[,] . . . really petrified” because he had never had a 

weapon aimed at him before. 

 

4 We do not cite Sears for precedential value. See Tex. R. App. P. 77.3.
12

Malone’s testimony established all the elements of the charged offense 

under a theory of party liability, specifically that appellant encouraged or directed

Wattell, Boutte, or other unknown assailants to commit theft while intentionally or 

knowingly placing Malone in fear of imminent bodily injury or death. See Tex. 

Penal Code §§ 7.02, 29.02, 29.03. Further, as some men displayed guns, appellant 

told Malone: “You’re going to end up dead out here.” Appellant’s threat to 

Malone constitutes additional evidence of the aggravating element. A rational jury 

could have found that appellant’s comment that Malone could “end up dead” 

indicated knowledge of the presence of deadly weapons to back up the threat. 

Viewed collectively, this evidence supports the jury’s finding that appellant 

intended to promote or assist the commission of an aggravated robbery, and that 

appellant solicited, encouraged, directed, aided, or attempted to aid others to 

commit aggravated robbery. It is well-settled that the testimony of a sole witness 

to an offense may constitute sufficient evidence to support a conviction. See 

Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding conviction 

for assault with intent to murder where only one witness saw defendant with gun); 

see also Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 

2004, pet. ref’d) (holding evidence legally sufficient to sustain aggravated robbery 

conviction where complainant testified appellant robbed her at knife-point, 

complainant identified appellant in photographic lineup, and complainant 

identified appellant in court). 

The jury heard more than just Malone’s testimony. Thomas corroborated 

much of Malone’s account, including that appellant instructed the other assailants 

to “get [Malone]” and that several men had guns visibly displayed. Thomas said 

the guns were “apparent to everybody.” The jury could infer from this testimony 

that the firearms were visible to the entire group, including appellant, and that 
13

appellant knew the other assailants would display, or were displaying, the guns to 

place Malone in fear of imminent injury or death. See, e.g., Sears, 2018 WL 

4347878, at *6 (based on appellant’s “integral part of the scheme to commit the 

robbery,” jury could infer that appellant would have been aware of the manner in 

which the intruders planned to commit the offense, including the use of guns); 

Kirvin v. State, No. 05-09-00382-CR, 2010 WL 3259798, at *5 (Tex. App.—

Dallas Aug. 16, 2010, pet. ref’d) (not designated for publication) (based on 

testimony that appellant was “inside contact” and participated in planning and 

carrying out the offense, jury could infer that appellant knew each person’s role in 

the offense, including use of firearm). 

One additional piece of circumstantial evidence supports a finding of guilt. 

Although police responded to Malone’s 911 call within minutes, appellant was no 

longer at the scene. Chizer, the club’s manager, attempted to explain that appellant 

left the scene because he accompanied a high-profile customer who wanted to 

leave the club, but Sergeant Mora disproved this defense witness’s explanation—

the high-profile customer was documented as one of the 227 men “that were stuck 

inside once the officers locked down the location.” Flight is a circumstance 

indicating guilt. See, e.g., Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex. Crim. 

App. 1983).

Viewing the cumulative force of the evidence in the entire record in the light 

most favorable to the verdict, we conclude that a jury rationally could have found 

beyond a reasonable doubt that appellant was aware that guns would be used or 

were being used in the commission of the robbery, and that appellant was guilty 

under the law of parties of committing the offense of aggravated robbery. 
14

Accordingly, we hold that the evidence is legally sufficient to support appellant’s 

conviction, and we overrule his first issue.5

B. Lesser Included Offenses 

In his next three issues, appellant argues that the trial court erred in denying 

requests for inclusion in the jury charge of three lesser included offenses: 

(1) robbery; (2) assault by threat; and (3) deadly conduct. 

1. Standard of review and applicable law 

In a prosecution for an offense with lesser included offenses, the jury may 

find the defendant not guilty of the greater offense, but guilty of any lesser 

included offense. Tex. Code Crim. Proc. art. 37.08. We analyze whether a 

defendant is entitled to a lesser included offense instruction under a two-step 

analysis. See Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). First, we 

decide whether the purported lesser included offense falls within the proof 

necessary to establish the offense charged. Id. at 68. To make this determination, 

we compare the statutory elements and any descriptive averments in the indictment 

for the greater offense with the statutory elements of the lesser offense. Id. This 

first step involves a question of law and does not depend on any evidence produced 

at trial. See Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). 

In the second step of the analysis, we evaluate whether some evidence exists 

from which a rational jury could acquit the defendant of the greater offense while 

convicting the defendant of the lesser included offense. Sweed, 351 S.W.3d at 68. 

 

5

 The charge also included an instruction that allowed the jury to find appellant guilty if, 

in the attempt to carry out a conspiracy to commit one felony, another felony was committed by 

one of the conspirators. See Tex. Penal Code § 7.02(b). Appellant argues that there was no 

evidence of a prior or contemporaneous plan to commit aggravated robbery, such that the jury’s 

verdict cannot stand on a theory of conspiracy liability. Due to our disposition, we need not 

address appellant’s contention regarding conspiracy liability.
15

The evidence must establish the lesser included offense as a “valid rational 

alternative to the charged offense.” Id. We review all of the evidence presented at 

trial. Id. Anything more than a scintilla of evidence entitles a defendant to a lesser 

included offense charge. Id. Although a scintilla of evidence is a low threshold, 

“it is not enough that the jury may disbelieve crucial evidence pertaining to the 

greater offense, but rather, there must be some evidence directly germane to the 

lesser-included offense for the finder of fact to consider before an instruction on a 

lesser-included offense is warranted.” Id. If some evidence refutes or negates 

other evidence establishing the greater offense or if the evidence presented is 

subject to different interpretations, then the standard is met and the instruction is 

warranted. Id.

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); Davison v. State, 495 S.W.3d 309, 311 (Tex. App.—

Houston [14th Dist.] 2016, no pet.). We turn to each of the lesser included 

offenses raised in appellant’s brief. 

2. Application 

The trial court instructed the jury on the lesser included offense of 

aggravated assault. Appellant argues that he was also entitled to instructions on 

the lesser included offenses of robbery, simple assault by threat, and deadly 

conduct. For purposes of our analysis today, we assume that appellant properly 

requested these additional instructions in the trial court, and that robbery, simple 

assault, and deadly conduct are, as a matter of law, lesser included offenses of the 

charged offense. 

Therefore, the only question is whether any affirmative evidence exists from 

which a rational jury could have found that, if guilty, appellant was only guilty of a 
16

lesser included offense and not guilty of aggravated robbery. Before addressing 

each of the lesser included offenses discussed in appellant’s brief, we summarize 

the pertinent evidence. 

The jury was presented with two competing theories. The State argued that 

appellant participated in an aggravated robbery. The defense argued that appellant 

confronted Malone only about his Harden Facebook post or about paying back a 

debt, but that appellant was not involved in a robbery. 

The State’s main witnesses, Malone and Thomas, testified that appellant led 

a group of men, some armed, and instructed them to punch and kick Malone and 

go through Malone’s pockets. Malone testified that the assailants stole thousands 

of dollars’ worth of jewelry and personal belongings. Thus, these two witnesses 

testified to the essential elements of the charged offense, aggravated robbery. 

Molo and three of the four defense witnesses (Chizer, Ferguson, and Womack) all 

testified that they did not see any fight or confrontation involving Malone. Dillard 

testified that he saw a “commotion” between appellant and Malone, but he denied 

that it was a fight and he did not hear any words exchanged. 

a. Robbery 

A person commits the offense of robbery if, in the course of committing 

theft and with the intent to obtain or maintain control of the property, he causes 

bodily injury to another or threatens or places another in fear of imminent bodily 

injury or death. Tex. Penal Code § 29.02. Appellant argues that the jury 

“rationally could have concluded that appellant confronted Malone about an 

unpaid debt owed to the club and encouraged the other men to take Malone’s 

property to recover the debt, but that he did not know that the men were armed.” 
17

There is no evidence that a robbery occurred, but that guns were not 

involved. Appellant’s argument, essentially, is that the jury could have believed 

Malone’s and Thomas’s account of the events except for their assertion that guns 

were involved. But “it is not enough that the jury may disbelieve crucial evidence 

pertaining to the greater offense.” Sweed, 351 S.W.3d at 68. There must be 

evidence directly germane to the lesser included offense. Because there is no 

affirmative evidence directly germane to robbery, but not aggravated robbery, we 

hold that appellant was not entitled to an instruction on robbery. See, e.g., 

Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (where defendant 

was charged with aggravated sexual assault based on his use of a knife, the fact 

that the knife was never found was not “affirmative evidence” that no knife was 

used during the assault, and therefore the trial court erred in granting the State’s 

request for instruction on the lesser included offense of sexual assault), abrogated 

on other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2011). 

We overrule appellant’s second issue.

b. Simple assault by threat 

A person commits the offense of assault if he intentionally, knowingly, or 

recklessly threatens another with imminent bodily injury. Tex. Penal Code 

§ 22.01(a)(1), (a)(2). Appellant argues that the jury “rationally could have 

concluded that appellant confronted Malone about the Harden Facebook post and 

verbally threatened him with imminent bodily injury” but that Malone was not 

robbed or was robbed by someone other than appellant. Appellant does not direct 

us to any evidence that he verbally threatened Malone with imminent bodily injury 
18

but that Malone was not robbed, nor does our review of the record reveal any such 

evidence.6

Because there is no evidence that would permit the jury to find that appellant 

was guilty only of assault, but not aggravated robbery, appellant has not 

established that he was entitled to an instruction on simple assault by threat. See

Knott v. State, 513 S.W.3d 779, 794-95 (Tex. App.—El Paso 2017, pet. ref’d) 

(witness’s testimony that he observed “altercation” was not affirmative evidence 

that only an assault took place, not robbery). 

We overrule appellant’s third issue. 

c. Deadly conduct 

A person commits the offense of deadly conduct if he recklessly engages in 

conduct that places another in imminent danger of serious bodily injury. Tex. 

Penal Code § 22.05(a). Appellant argues that the jury “rationally could have 

concluded that appellant confronted Malone and verbally threatened him with 

imminent bodily injury while the armed men threatened him with guns but that 

Malone was not robbed.” We disagree. 

To be entitled to the deadly conduct charge, there must be some evidence in 

the record that would permit a jury to rationally find that if appellant is guilty, he is 

guilty only of deadly conduct, not aggravated robbery. Appellant asserts, without 

citation, that the record contains some evidence that appellant was a party to 

Malone being threatened with imminent bodily injury with firearms. But the only 

evidence that Malone was threatened by one or more armed assailants was 

 

6 Appellant asserts, without citation, that evidence shows Malone did not wear jewelry, 

that appellant denied he was present during the incident, that appellant left after confronting 

Malone verbally, and that appellant returned to break up the fight. Even assuming that all of 

those assertions are supported by the record, none constitutes evidence of assault by threat.
19

Malone’s and Thomas’s testimony that Malone was robbed at gunpoint. There is 

no evidence that appellant placed Malone in imminent danger of serious bodily 

injury but that Malone was not robbed at gunpoint. Appellant therefore was not 

entitled to an instruction on deadly conduct, and we overrule his fourth issue. See, 

e.g, Benefield v. State, 389 S.W.3d 564, 576-77 (Tex. App.—Houston [14th Dist.] 

2012, pet. ref’d) (when defendant denies commission of any offense and there is no 

evidence establishing commission of a lesser included offense, he is not entitled to 

a charge on the lesser offense). 

C. Evidentiary Rulings 

1. Standard of review 

We review a trial court’s evidentiary rulings for an abuse of discretion. 

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Neale v. State, 

525 S.W.3d 800, 809 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial 

court does not abuse its discretion when its ruling falls within the zone of 

reasonable disagreement. Gonzalez, 544 S.W.3d at 370. Under the abuse-ofdiscretion standard, we must uphold the trial court’s ruling if the record reasonably 

supports it and it is correct under any legal theory applicable to the case. Neale, 

525 S.W.3d at 809. We may not substitute our judgment for that of the trial court. 

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Even if a trial court 

errs, however, we will not reverse the judgment unless the appellant demonstrates 

that the erroneous evidentiary ruling affected his substantial rights. See Tex. R. 

App. P. 44.2(b); Rodriguez v. State, 546 S.W.3d 843, 861 (Tex. App.—Houston 

[1st Dist.] 2018, pet. ref’d).
20

2. Admission of evidence of Malone’s good character 

In his fifth issue, appellant argues that the trial court reversibly erred by 

admitting a portion of Malone’s testimony over appellant’s objection. 

Appellant’s counsel asked Malone during cross-examination whether he had 

a relationship with appellant. Malone answered: 

No, I didn’t. That’s not a relationship. Being cordial is not a 

relationship. That’s called being respectable. Like I told you 

yesterday, my dad tells me to treat the CEO just like you treat the 

janitor. If you know anything about Moses Malone or you know how 

the Malone family is, we’re very giving people. My dad and I have 

done everything in this world for people that are underprivileged. My 

kids -- my family members grew up in the Fifth Ward. I used to give 

them all my clothes. I used to give them all my shirts, everything that 

they needed to make sure people had the same type of life that we 

had. 

Appellant’s counsel objected, “[N]onresponsive. That was a yes-or-no 

question.” The trial court did not rule on appellant’s objection but instead 

instructed counsel to “[a]sk your next question, please.” Appellant did not move to 

strike the witness’s answer. Appellant now argues that Malone’s answer is 

inadmissible character evidence, citing Texas Rule of Evidence 404. See Tex. R. 

Evid. 404(a)(1) (generally, “[e]vidence of a person’s character or character trait is 

not admissible to prove that on a particular occasion the person acted in accordance 

with the character or trait”).

We hold that appellant failed to preserve his allegation of error. Appellant’s 

objection at trial—that Malone’s answer was non-responsive—does not comport 

with his complaint on appeal—that Malone’s answer was inadmissible character 

evidence. See Smith v. State, 200 S.W.3d 644, 650 (Tex. App.—Houston [1st 

Dist.] 2001, pet. ref’d) (appellant’s trial objection to non-responsiveness did not 

comport with his complaint on appeal that testimony impermissibly impeached 
21

appellant’s credibility). For this reason, appellant has not preserved his complaint 

for our review. See Vasquez v. State, 225 S.W.3d 541, 543 (Tex. Crim. App. 2007) 

(noting that a court of appeals may not overturn a trial court’s decision on a legal 

theory not presented to the trial court); McQueen v. State, No. 14-17-00366-CR, 

2018 WL 3977943, at *1 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, pet. 

ref’d) (mem. op., not designated for publication) (“A complaint is not preserved for 

appellate review if the legal basis for the complaint on appeal varies from the 

complaint made at trial.”).

Without reaching the merits, we overrule appellant’s fifth issue. 

3. Exclusion of evidence of Malone’s reputation for dishonesty 

In his sixth issue, appellant complains that the trial court reversibly erred by 

excluding a portion of a defense witness’s testimony on the State’s objection. 

During direct examination, appellant’s counsel asked Dillard, the club DJ, 

whether Dillard was “familiar with [Malone’s] reputation in V Live.” The State 

objected to relevance, the trial court sustained the objection, and appellant’s 

counsel put on an offer of proof outside the presence of the jury. 

As relevant here, Dillard testified during the offer of proof that Malone 

would borrow money from the club and had a reputation with the staff at V Live of 

not paying his debts.7 Appellant argues on appeal that the evidence that Malone 

“had a bad reputation with management because he borrowed money and did not 

pay his debts was admissible to show his reputation for untruthfulness.” Further, 

according to appellant, the trial court’s erroneous exclusion of this evidence of 

 

7

 Dillard also testified that the staff at V Live “like[d] [Malone] till he get drunk” and that 

Malone could be “[a]ggressive on the girls,” but appellant does not explain how the exclusion of 

this evidence affected his substantial rights, and so we do not include it in our analysis. 
22

Malone’s dishonesty affected appellant’s substantial rights because it could have 

convinced the jury that Malone’s version of events was not true. 

Assuming for the sake of argument that the trial court abused its discretion 

in excluding Dillard’s testimony, we conclude that appellant has not shown the 

requisite harm that would entitle him to relief. 

The erroneous admission or exclusion of evidence does not affect a 

defendant’s substantial rights and is harmless if the evidence is cumulative of other 

evidence admitted to prove the same fact. See Lindsay v. State, 102 S.W.3d 223, 

230 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also Anderson v. State, 

717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm excluded 

evidence must be controlling on material issue and not cumulative of other 

evidence); Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. 

ref’d) (holding no harm existed when complained-of excluded evidence was 

admitted through other testimony). 

Here, Dillard’s testimony was cumulative of other testimony regarding 

Malone’s alleged nonpayment of debts owed to V Live. Chizer, the club manager, 

testified that Malone “always borrowed money from [Chizer],” that “every time 

[Malone] come to the club, like three or four times a week, he’d probably borrow 

like three or $4,000 every time he come,” that Malone owed Chizer money, that 

Malone had an outstanding debt with V Live the week of the incident at issue, and 

that Chizer previously had at least one physical confrontation with Malone 

regarding Malone’s unpaid debt. Dillard also testified without objection that 

Malone “borrowed money all the time” and that Malone owed at least $1,000 to 

the club the night of the alleged robbery. Therefore, even if the trial court erred in 

excluding the portion of Dillard’s testimony included in the offer of proof, the 
23

exclusion was harmless. See Anderson, 717 S.W.2d at 628; Lindsay, 102 S.W.3d 

at 230; Rangel, 179 S.W.3d at 70. 

We overrule appellant’s sixth and final issue. 

Conclusion 

We affirm the trial court’s judgment. 

 

 /s/ Kevin Jewell

 Justice 

Panel consists of Justices Jewell and Hassan and Retired Justice Marc W. Brown, 

sitting by assignment.

Do Not Publish — Tex. R. App. P. 47.2(b).