## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02 -22- 00197 -CR No. 02

- 22

- 00198

- CR

___________________________

On Appeal from the 271st District Court Wise County, Texas Trial Cou rt No s . CR23370, CR24196
Before Kerr, Birdwell, and Bassel, JJ. M emorandum Opinion by Justice Kerr 

### R OYCE 

### E DWARD 

### W OOD 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I
. Introd u ction
Dashboard

- and body

- camera video and other evidence show ed that on June 13, 2021, City of Rhome Police O fficer s Rex Rich i e and B rody Brown were pursuing Appellant R oyce Edward Wood , who fired a gun at them. 1 O ne o f Wood ’ s b ullets hit
Officer R i chie in the left foot

. 2 W ood pleaded guilty in each case to aggravated assault on a peace officer, see Tex. Penal Code Ann. § 22.02( a ) , (b)(2)( B) , enha nc ed by prior
convicti o n s to which Wood pleaded true , 3 and he asked a jury to assess his punishment. W ood ’ s prior convic tions i ncreas ed the potential range of confinement

1 In trial co urt ca use numb er CR 23370 ( appe llate cause number 02

- 22

- 00197

- CR ) , Wood was charged with having intenti onal ly or kn owingly threa tene d Off icer Brown w ith imminent bodily injury by shooting in his di rectio n with a dead ly weapon (f

irearm) whe n he knew Office r Brown was a po lice officer lawfull y discharging an official duty (attempting to apprehend Wood who was fle ei ng the scene of a t raff i c st op).

2 In trial court cause number CR24196 (appellate cause n umber 02

- 22

- 00198

- CR), Wood was charged wi th k no wingly or recklessly causing bodily inju r y to Of ficer Richie by sh ooting hi m with a dea dly weapon (fir ear m) when he kn ew Officer Richie
was a p o lice officer lawfu lly discharging an official duty (attempting to frisk Wood). It further ch arg ed , as an alternative manner a nd means, th at Wood had knowingly thre atened Officer Richie with imminent bodily injury by shooting in his directi on. Officer Rich i e testified that the gunshot wound caused him “ [ i ] mme nse pain , ” b ut although the bullet fractur ed three foo t bones , the injury did not req uire surgery , his nerves and arterie s were undamaged , and his injur ies w ere not lif e

- threat ening. Although physic al t h er apy returned his foot ’ s functionali t y, he was placed on light d uty for five m o nths and returned to f ull duty in November 2021.

3 Bot h ind ictmen t s listed three e nhancement paragraphs setting out Wood ’ s two 2013 bu rg lary

- of

- a

- habitation con victions and hi s 2013 r obbery convicti o n.3 to 15

– 99 years or life. See id. § 12. 42(c)(1)

. The jury assessed W o od ’ s punis hment a t
60 years ’ confinement and a $10,000 fine in Office r Brown ’s case and confinement for life and a $10,000 fine in Officer Richie ’s case . T h e t rial court ente red judgment accordingly and set the sentences to run concurrently

. I n five iss ue s , W oo d complain s that t h e trial court erred by (1) not recusing the Wise County D is trict Attor ney (DA ) ’ s Off ice after t he coun ty recorded and review ed
his privil eged jail calls ; (2) denying his request for mistrial after Of ficer B rown ’ s

nonres pon sive t e st i mony ; (3) not allowing him to cross

- examine Officer Richie about prior offic e r mi sconduct ; (4) not all ow ing h im to present mitigating e vidence of pretrial s olitary confinement in violation of “ Texas J ail Standar ds ” ; and (5) not declari ng a mis trial or q ue s tioning jurors after the S tate ’ s wi tnesses conversed o utside the jury room ’ s open d oor during a break. Becau s e none of Wood ’ s com plaints
p r es ent revers i b le er ror, we affirm.
II. Discussion We begin with Wood ’ s recusal com plaint , followe d by hi s mis trial , c ro ss

exam inati on, an d mitigating

- evidence complain ts. A. Recusal
In h is first is sue, Wood compl ains that the trial court erred by not recusing the
DA ’ s office after the county recorded a nd reviewed his attorney

– cl ient priv ileged phone calls. The State co n tends that Wood did not prove a violation of his Sixth
Amen dmen t right to cou n sel because h e fa iled to show the State ’ s deliberate4 elicitation or purposefu l intrusion in to the attorney

- client rela tions hip or that any
p rejudic e was caused thereby

. D urin g W o od ’ s pretrial in carceration , the co unty jail recor ded his ph one call s , including calls with his attorney , and forwarded the re cordings to the DA ’ s office. At
the A ugust 3, 2022 p retri al hearing, Wood ’ s counsel informed the trial court that the recording s h ad come to her a ttention when s he saw her la w partner ’ s name on the
State ’ s witness list. I n h er rec usal motio n , Wo od ’ s coun sel stated,
S ince Mr . Wood has been in custo dy, the jail has routinely rec orded al l of his telephone calls and electronic corresp on d ence a t the request o f the District A ttorney ’ s Office . On June 27, 2022, Defense Couns el received discovery from th e Wise Co unt y District Attorn ey ’ s Office containing r ecordings of Mr. Wood ’ s commun ications

. At least twenty of these recorded calls were ma d e by M r. Wood [to his couns el ’ s law f ir m . ] At least six of these re cordings contain s u bstantive, pr ivileged discuss ions betw een Mr. Wood [and hi s counse l]

. At the subsequent hearin g , d efense counsel provided the tr ial c ourt with a udi o file s of the recor di n gs and their transcription , an d Jack McGui nn, one of the DA ’s

two investigator s , test ified that when he came a c ros s two phone calls t o an attorney ’ s office , as soon as the person answering the call s identifie d as the attor ney ’ s office, he stopped lis ten in g and immediately deleted t h ose calls

. H e did not , however, look

t hrough the call log to redact or delet e all calls to the law firm ’ s number, although he
admitted that he “ probably should have

. ” A lthough he had intended to brief the attorneys in his offi ce about the situation , he had not had the opportunity to do so , and he did not notify def ense counsel ’ s office a bout it or ask the jail to stop recording5 attorney

- client phone calls

. H e state d that since the issue had arisen, he had l e arned that attorney s c o uld be placed on the jail ’ s do

- not

- recor d list.
T he DA ’ s office opposed the recusal motion, arguing that the State had not

access ed or listened to th e pho ne c alls and had not violated Wood ’ s rights

. The
county ’ s information technology director informed th e t rial c ourt that he had deleted
the records from t he DA ’ s comp uters and from the jail sergeant ’ s hard drive and that
the third

- party softwar e ve ndor could del ete the phone records from its system with a
court order.
T he trial court reviewed defense cou ns e l ’ s ma teri a ls

— the recordings and

trans cripts

— w hich were sealed and included in the record , ordered de le ted all recorded p hone ca lls from Wood at the Wise Cou nty Jail to his counsel ’ s pho ne number , and denied the rest o f the motio n . Wo o d and the State th en reached the plea bargain under which Wood agreed to plead gu ilty to the indict ment s and true to the
enha ncement para graphs in e x change for dismissal of all the remaining indictments against him

. 4

4 When Wood moved t o recuse the DA , he had eight felony offenses pending

— three charges of aggrava ted assault against a public serv an t and one charge each of
a ssault aga inst a public servant , aggravated robbery, manufact ure o r d eliv e ry of a Penalt y Grou p 1 controlled substance, possession of a Penalty Gro up 1 controlled substance , and o bstruction or re taliation.
W ood ’ s plea ba rgain required him to make an open guilty p lea to t he first

degree

- felo ny enhanced offense s of agg ravated ass a ult agains t a public serv ant and a plea of true to the enhancement paragraphs and deadly

- weapon all egation s in exchange for no p ro secution for u n lawful possession of a fir earm by a felon , no6 The six “ sub s tanti ve ” calls contained information about w hy

— according to Wood

— he was incarcerated ( he claime d “ t hey ” were picking on his girlfriend, whose

t railer had been stolen); that Wood had heard that an offi cer in h is case had a bullet
wound and was the DA ’ s frie n d ; t hat the woman who h a d been with him at th e traffic
stop was innocent ; that he had o riginal ly a rranged with a defen se attorney (Paul
Bel ew) to turn himself in before his arrest and “ not sho ot i t out with the cops ” ; that a jailer had assaulte d him and if he had assaulted someone in jail , “ they wo ul d l eave in
an ambulance and he wouldn ’ t quit ” ; that he had received the assaulting

- a

- peace

officer indictments ; and that he did not t hreaten a jailer i n his obstruction case.
Be yond the evidence

— whi ch wa s provided in the form of dashboard

- camera and body

- c a mera video, as well as t he officers ’ testimonies

— t hat W ood had s hot one of the arresting offi cer s , n one of this informat ion was offered a t trial , although evidence to the contrary

— such as testimony that Wood had threatened a jailer and a video of his ph ys i cal altercation with jai lers

— was ad mitted into evidence. 5

federal referral , and the State ’ s dism issal of cause numbers CR2 4 145, CR234 81 , CR23485, CR 23394, CR2378 0, and CR 24003 a fter the jury ’ s sentence s in the instant cause numbers. As pa rt of the plea a greement, the trial court gav e Wood permi ssion to appeal the “ re corded jail ca ll iss ue ” and h is punishment

.
5 T he prosecu tor i nformed the tri al court that the State did not in tend to call Belew as a witness , and after speaking with Belew, the trial court informed the parties that Be lew wo uld not “ participa te in any way in this case. ” The Texas Ranger who inv estigated the cas e te s tified that Wood peac efully turned himself in at a hotel in Arkansas

.7 Further , each recording bega n with a warning that the call could be mon it ored
or recorded , and Wood acknowledged mul tip le ti mes in his initial call and in later call s that they were in fact being r e corded , and his cou nsel ’ s office warned him not to say anything

. Mo st of Wood ’ s complaints were that he was being held in solitary
confinement , that he had been denied access to re creation a nd church with other
inmates , that he wanted to await trial in a r ehab center “ so [ he ] could show positive change , ” and that he had been indicted on new assault

- on

- a

- pea ce

- officer charges for
which his atto rney had told him that he would not be indicted

. T he State ’ s intrusion into the attorney

– client relationship viol a t e s a defe ndan t ’ s

const it utional right to counsel when the violation prejudices the defendant

. Murphy v.
State , 112 S.W

. 3d 592, 602 ( Tex. Crim. App. 2003) (noting that the evidence showed no prejudice to the appell ant when the prosecutor who reviewed priv il e ged
do cument s testified that he did not use an y of the materials in prep aring the case) ; see U.S. Const. amends. VI, XIV; see also Unit ed States v. Mo rrison , 449 U.S. 361, 365 , 101 S.
C t. 6 65, 668 (1981) ( “[ A]bsent demonstrable prejudic e, or sub sta ntial t h rea t ther eof,
dismis sal of the indictment is plainly inappropriate, e ven though the vi olation may have been deliberate

. ”). A defenda nt is pr ejudiced by the State ’ s intrusion into the
attorney

– client relationship if the State ’ s intrusion “ prod uce d, direc tl y or indir ectly,
any of the evidence at trial. ” Morrison v. State , 575 S.W.3d 1, 18 (Te x. App.

— Texarkana 2019, no pet.) (quoting Weat herford v. Bursey , 429 U.S. 545, 552 , 97 S. Ct. 83 7,
842 (1977)). “ It is conceivabl e that the State might purp ose fully in tr u de into t he8 defe ndan t ’ s attorney

– client relationship, but the intrusi on would not prej udice the
defendant because noth i ng of value w as gained. ” Id. Or because nothing was obtained
th at the State did not already know. Id.
Wood refers us to Woodru ff v. St at

e to suppo rt his argu ment that the trial court
erred. 330 S.W.3d 709 , 724 (Tex. App.

— Texa rkana 201 0, pet. ref ’ d) (not i ng that,
whil e not absolute, a criminal defendant ha s the right t o communicate and consult in private with his or her attorney)

. I n Wood ru

f f

, the defendant was arrested for murder
and , whi le he was in jail awaiting trial, t he DA ’ s offic e instructed the s heriff ’ s offi ce to record his conversations with his atto rneys and to supply the DA ’ s office w ith copies
of the recordings. Id. at 7 13. Th e D A ’ s office subsequently recused , the trial c ourt ordered suppression of any evid ence obtai ned as a result of the recordings , and the
attorney g eneral ’ s of fice agree d to prosecute the case ; the defendant arg ued that his
indictm ent should have been dismis se d

. Id. at 713, 723. The court re viewed the
16 5 record ed calls, mos t of which disc ussed irre levant information ; none of the calls disclosed privileged information “ of even the most marginal value to the S tate
. ” Id. at 725. The c our t concluded that t he def en d an t had failed to show demonstr a ble
pr ejudic e , or a substantial thr eat of it , and that t he trial court did not err by refusing to
dismiss the case. Id. at 726.
Here , unlike in Woodruff , the record does not show that the prosecutor requested that r eco rdi ng s o f Wood ’ s conversations with counsel be made

. Further,
the trial court determined the investigator ’ s credibility and could have concluded that9 the State learned no thing from the recordings, and our review of th e recordings shows
that the y pr oduce d n oth in g o f value to the prosecution or of which the State could

not have alread y been aware , such as Officer Richie ’ s gunshot wound and Wood ’ s

v

ideo

- recorded behavior in j ail . Acc ordingly, because the record does not de monstrate any preju dice to Wood, se e M urp hy , 1 12 S.W.3d at 602 , we overrule his first iss ue. B. Mistrial
Wood raises mist rial complain ts in his second and fifth issues. A mistrial is the
trial court ’ s remedy for improper conduct that is “so prejudicial tha t expenditure of
further time and e xpense w o ul d be wasteful and futile.” Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) . W e review the denial of a m otion for mistrial f or an abuse of discretion. I d.
1. Brown ’ s nonresponsive reply
In his second issue, Wood co mplains that the tria l cour t a bu sed its discretion by denying his motion for mistrial after Officer Bro wn ’ s non responsiv e testimony.
S pec if i cally, he com plains that Officer Brow n “ opined before the jury that it was
necessary to shoot [ Wood ] in the back in order to prevent him from k il l

ing citizens in a nearby ch urch. ” The State respond s tha t the trial co urt did not abuse its d iscretion
because the trial court ’ s in structi on to dis reg ard cu re d any prejudice

. For context, w e summarize Officer Brown ’ s preceding testi mony . O fficer
Brown t es t ified that he and Officer Richi e had been di spatched to the same area the day before t he shooting for an i n cident invo lving Wood

. Wood , who had allegedly10 been in possession of a firearm, left the sc e ne before they arrived

. A fter mee ting with

coun ty depu ti e s abo ut th e incident, Office r Br own looked Wood up on Facebook so that he could ide ntify him

. The next day, he and Officer Richie were dispatc hed to the s ame area, and they
waited at t he stop

- sign intersection of two farm

- to

- mar ket roads near a litt le c hu r ch to see if Wood wou ld drive past. After Wood ran the stop sign , they followed him

. Wood stopped his motorcycle jus t east of a residential subdivision before they turned on their patrol car ’ s lights t o stop him. Wood ’ s female companion stayed on the

mo to r cycle.
O fficer B rown testifie d t hat t he road ’ s shoulder where Wood pulled over was

not safe for st opping and that Wood ’ s p ull ing o ver be fore they activ ated their light s had c oncerned him

. He explained,
We ll, usua lly when somebody does that , they ’ re ei th er trying to get us to go arou nd them because they don ’ t want to get stopped, th ey ’ re trying to get us to leave them alone , or th ey ’ re trying to set the arena for where the stop takes place if they want to r un or if they want to, you know, th row somethin g ou t or engage in some kind of physical altercation, they can set the location fo r that, not you. [ 6 ] During th e stop, Officer Brown ran the motor cycle ’ s registrat io n while Officer
Richie spoke with Wood. Officer Brown t estified tha t Wood had appeared very

n er v ous, had been breathing h eavily and talki ng rapidly, and had se emed very t witchy.

6 D uring cr oss

- examination, Officer Brown agreed t hat he a nd Officer Richie had n ot initially co nsi dered the stop to be high risk despit e th e prior day ’ s dispatch.11 D uring his direct t estimony, Officer Brown tes tified that a fter Wood advised Officer Richie that he had a knife, Officer Richie told him that he was going to pa t him down ; W o od then beca me guar ded and de f en sive, de manding to know w hat was going on. 7
T hen Officer Richie told Wood that if he did no t allow the pat

- down , he was “ gonna get [T ] ased, ” and Wood ran . As t he y p ursue d him, Officer Brown ye lled at Wo o d to
show them his h a nds. Wood pointed a gun toward them and fired shots , the first of which hit Officer
Richie , who rolled into the ditch on the side of the road

. Officer Brown fire d back
and dov e for the ditch

. Both ret urne d fire. O fficer Brown testified t hat in Wood ’ s li ne of fire, there were cars an d the woman on Wood ’ s mot orcycle

. Officer Brown ’ s body

camera v i deo, whi ch was admitted int o evidence and published to the jury, supports
his testimony about the stop sign, the stop, a nd the shooting

.

7 During cross

- exam inat i on, Offic er Brown agreed that he did not recall whether O fficer Richie a ctually told Wo od that he was g oing to pat him down and ag reed that Officer R ichie had to ld Wood to turn ar ound and t hen when Woo d asked what was g oing on, Officer Richie told him , “ [ F ]irst o f all , tu rn around like I told you, today, not tomorrow. ” Of ficer Brown st ated t h at the reason an officer might not te ll someon e that he is going to pat the pers on dow n is because “ in their mind [ ,] they could be thinking am I gon na run, am I g o nna d o it, I have something t hat I don ’ t want the police to know about. You know, there ’ s a m illio n things that could be goi ng through so me bo d y ’ s m ind. ” Officer Ric hie testified that he did not tell Wood that he was going to pa t him dow n. Instead, after Wo od i n dicate d that he had a knife in re sponse to a question abo ut whethe r he had any weapons, Officer R ichi e asked Wood t o st e p up onto the roadwa y so that he could check him and to turn a round. Officer Richie stated that a t that point, Wood became def ensiv e an d started questioning what was goi ng on.12 When the prosecutor asked O f ficer Brown why he had returne d fire as Wood
f led, Wood ob jected d uring Office r Brown ’ s answer , as set out below. Q. Now, I notice here th at you returned fire as he ’ s run n ing away; is that right? A. Yes. Q. Okay. And why do we

-- what

-- what ’ s the purp os e of that? A. He had already attempted to shoot two polic e offic ers

-- sho t one police officer, attempted to shoot two. H e was running t owards a neighb orhood with people and a church. It was Sunday. There ’ [re] many oc casions where people have been in a s am e exact situation, retreated to a neighbor hood,
mu rdered someo ne , taken their car . [Emphasis added.] [Defense cou nsel] : Ju d ge, I ’ m goin g to object to [the] nonresponsive n a ture of that answer

-- THE COURT: Sustained. [Defense counsel] :
-- and I ’ d ask the j u ry be instructed to disregard. THE COURT: The jury

- - the l ast part of the testimony just given, I ’ m ins tructing the j u ry to disreg ard that part o f the testimony. [De f ense counsel] : Due to the inflammatory nature of this witness ’ s answe r, I request

-- I r e spectfully request a mistrial, your Honor. THE COU RT: Tha t w ould be denied. Duri ng cross

- examination, Officer Brown testified that Wood ran toward th e church and the neigh borhood , which he estimated had a dozen houses

. 8 The trial

8 The trial cou rt also allowed d efense couns el dur ing cross

- examination to ask Off icer Brown about his improper destru ction of pers onnel files and subseque nt13 court admitted i nto evi de n ce ph otographs captured f rom th e offi c ers ’ bod y
- and
dash board

- camera fo otage
. The trial court al so admitted into evidence Defendant ’ s Exhibit 21, an aerial photograph showing the area where Wood began run ning , which

s howed the neighbor hood and the chu r ch in opposite directions. Texas R anger Bil ly
Hill lat er testified th at as he investigated the officer

- involved shooting , he canvassed the neigh borhood and found a witness who told him that the suspect had stopped at
hi s house and asked for w ater. A mistri al should be grante d in response to a witness ’ s nonrespo nsive answer only in ca ses where that answer was “ clearly calculated to inflame the minds of the jury or was of such damning character as to suggest that it would be impo ssible to
remove the harmful i mp r ession from the j uror s ’ minds. ” Young v. Stat e , 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). And, o rdinarily, a prompt instruction to disregard will cure error associated with an improper ques tion and answer, even one r egard ing
extraneous offenses. Ovall e v . State , 13 S.W. 3d 77 4, 783 (T ex. Crim. App. 2000)

. On appeal, we generally presume that the jury fo llows the trial court ’ s instructions in the manner presented. Thrift v. State , 176 S.W.3d 221, 2 24 (Tex. Cr im. App. 2005)

. The
p resumption is refutable, bu t the appellant must r ebut the presu mption by pointing to evidence that the jury failed to follow t he trial court ’ s instructions. Id

.

repri mand during his time as interim police chief , as well as his employment record , which showed that he had work ed for five or six police departm ents since 2009.14 Here, the trial court gave an instruction to disregard Officer Brown ’ s

non respo nsive answe r, and Wo od does not direct us t o any evidence that the ju ry fa iled to follow th at instruction

. See id. Further, the aerial photograph contradicted
Officer Brown ’s testimony about the locations of the church and neighborhood , and the Ranger ’ s subsequent testimony clarified that no thing O f ficer Brown feared had
occurred

. We overrule Wo od ’ s second issue.
2. Ju ror misconduct
Wood ar gues that an incident near the end of the trial ’ s second day caused jurors to p ot entially receive evidence from ou tside the courtroom and that because
the trial c o urt refused to perform an inquiry, it cannot be det ermined fro m the record
whet her jury delib eration s were compr omised

. Th e State contends that the trial court
did not ab u se its discret ion by n ot questioning the jurors or declar ing a mistrial when

n o ev id e nce showed a Code of Cri min al Proce dure viola tion

.

Outside the jury ’ s presence , defense counsel informed the trial court th at her
i ntern , Am anda Arri ngton, had advised her that Dep uty Victor Tra n , who had worked
at the j ail when Wood was an inmate, alon g w ith Jail e r Preston Wilson , Jail
Administrator Daniel Armstrong , a nd Corporal Ja id an Saxon had violated the Rule 9

9 C ommonly referred to as “ The Rule, ” R ule of Evid ence 614 provides tha t a t a party ’ s request , with some e xceptions, the trial court “ m ust order wi tn es s es excluded
s o that they cannot hear other w itnesses ’ testimon y . ” See Te x. R . Evid 614.15 and talked w ithi n the jury ’ s earshot

. She told the trial c ou rt that Arrington had told
her that all four witnesses

wer e all sitti ng on the b en c h, which is roughly two t o three feet from the jury door, discussing [Wood] , discussing what a problem he was in t he jail, and that they had issues with him every d ay, whi ch is a violation of the Rule. It is within earshot of t he j ury, and th e jury door w a s open an d jurors

-- at l east one juror came outside and was on her phone, which moved her in even closer proximit y to two

-- to three witnesses that have previousl y testi fied [ 10 ] and one that is about to testify, your Honor. The p rosecutor rep lied that he had told the m to make sure they kept their voices
down and that the State intended to rest

. Defense counsel then stated that the problem was th at the ir conversation about
Wood had been “ w ithin earsho t of the jury, and that is

. . . infor mation that ’ s co mi n g to the jury . . . outsid e of the witness stand. And the door was open where the jury

c ould cle arly hear, partic ular ly when the one juror came outside and got on her phone. ” She asked the trial court to “ inquire of the jurors if anyone heard any of the

c o nversation out in the ha llway. ” The trial court replied, Okay. Well, at this point I am not going to

-- I ’ m going to hand le this by

-- I will address it, b ut I ’ m not going to s ay, hey, blah, blah, blah, di d you hear three peo ple

- - there were some deput ie s ou t there. D id you happen to hear what they were saying? I ’ m n ot gonna do that. So I ’ m not completely sure how I ’ m gonna do it

. . . .

10

Just before a break in the proceedings, J ailer Daniel Christie and Armstrong, Wilson, and Tra n had each testified about W ood ’ s behavior as an i nmate. The prosec ut or i n formed th e tr ial court that Sa xo n h ad not ye t been released bu t that he did not necessarily intend to call her as a witness.16 T he prosecutor a sked the tri al court to instruct the juro rs that th ey were no t to

c onsider anything they had not hear d f rom the witness stand.
After the State rested, outside the jury ’ s presence, the trial court allowed
defense counsel to call Tran , Wilso n , Saxon , Christie , and Arrington

. Tran test ified
that h e had been sitting on the b ench out side the open door of the j ur y room full of jurors with Saxon and Wilson , but he deni ed that they had been talking about Wood
or Wood ’ s b ehavior in jail

. He agreed that he had seen Arrington and tha t he be lieved
that she was close enough to them to have heard their co nversation.
Wil so n testified that the prosecut or had instructed him and the other witnesses to sit in the jury room when not te sti fy ing b ut to lea ve the jury room when the ju rors

we re using it. When the jury went to the jury room , he and the other witnesse s sat in
the ha ll w ay on a bench that was thre e or four feet outside of the jury room ’ s open door

. Wi ls on claim ed tha t he and the other witnesse s had be en ta l king about th e

w eather while they sat on the bench and ha d not been talking about their testimonies

. He did not re co gnize Arrington and had not noticed her because he had been playing
on h i s phone w hile the other s were talking. He denied that any of the witnesses had
been talking about Wood or his behavior in jail. Wils on agreed tha t if someone had
said anything, the ju r ors could have heard it because the bench was only thre e fe e t
away from the jury room ’ s open door.
Sax on stated that she, Tran, Wilson, and Christi e had sat or stood around the
bench outsid e the jury room , where they talked with each other about work , t he jail,17 and a different inmate, not Wood. S he agreed that the conversation h ad c entered on someone at the jail being a problem an d that the testimon y that afternoon had b een about Wood ’ s jail conduct

. She d enied having he ard any comments about Wood or
abo u t th e defe nse ’ s questions and how the defense was trying the case

. S a xon agreed
that she had seen Arrin gton. Christie agreed that he had be en sitting four or five feet outside the jury room with Saxon, Tran, and Wi lson , within the ju ry ’ s earsh ot
. They had b e en ta lki ng abou t their work and problems in the jail, as well as a littl e about p roblematic in mates , but
h e did not recall a specific comment about someone being a problem in the jail. He

a greed that they had not pr e faced their conversati ons by stating th a t they were not talking about Wood

. He said that they had not been speaking of any inmate
spec ificall y but rather a bout gen er al problems with people in the jail.
Arrin gton, t he defe nse intern, testified that she had been in the courtroom when Tran, Wils on , and Chr istie testified and that she had seen them, along with Saxon, seated on the bench outside of the j ury room and had heard them talking. Regarding the conve rsation portion that stood out to her, Arri ngton stated that she overheard the following , w hi c h distur b ed her : [ “ M] an, he was always a problem in the jail, [ ” ] you know, those kind [s] of co mments. And they were si tting around like friends do, and they were laugh ing to each other; but it was clear to me that they were talking ab out [W ood] . And I t hi n k it was reasonable to assume that [to] anyone that was walking by, that they were talking about [Wood] . And I was distu rbed that they were talking to e ach other at all

. . . .18 Arrington stated that although she did not hear them m ention Wood ’ s name , it

w a s fair to assume from wh at she heard of their co nve rsati on that Wo od was the
discussion ’ s topic

. Arring ton stated that they had b een speaki ng very close to the jury

room ’ s open do or . She ident ified a j uror wh o had been nearby, with i n earshot and

out side th e roo m , who had been scro lling thr ough her phone while leaning against the doorway

. On cros s

- exami nation, A rring ton a greed that she did not specifically hear
Wood ’ s name , that she was ass uming he w as the jailers ’ topic o f conversation , and
that she had e av e sdropped for no more t han four minutes

. On redirect, she agreed
that ther e was a temporal c onnection bet ween the jailers ’ testimon ies and the post

testimony conversation because tho se witnesses had just t e stified about Wood ’ s jail
conduct.
De fense coun s el req uested a mistrial , acknowledging that the consiste nt testimo ny had been that Wood ’ s nam e was not mentioned but ar guing that “ it ’ s a very clear assumption that anyone that overheard that con v ersation that did not hear the
name of the indi vi dual they w er e speaking of would have assumed [ that ] they were speak ing of ” Woo d. The trial cou rt denied the request. 11 After both sides rested and

11 The trial court also scolded the att o rneys, stating, I think any officer of the court that think s something is amiss going on in t his courtr oom or outsi de of it, certainly I want it called to my attention.

. . . I do know if something is amiss, rather than sending somebody out to listen so me more, . . . I wou ld expect any of ficer of the court, any of you, to bring that directly to m y atte ntion

.19 closed, defense counsel offered , and the trial court admitted, six exhibits for record
p u rposes

— pho tographs showing the ju r y room and its dista nce from the bench

. A juror must make decisions during the guilt and punishment phases of t rial using only information obtained in the c ourtroom: the law, the evidence, and the trial

court ’ s mandates. Ocon v. State , 284 S.W.3d 880, 8 8 4 (Tex. Crim . App. 2009). Code of
Crimin al Procedu re Article 36. 22 p rohibits anyone from conversing with a juror about
a case on trial “ except in the presenc e and by the permission of the court. ” Tex . Code
Crim. Proc. Ann. a rt. 36. 22

. The p aramount issue is whe ther th e appellant received a
fair and impart ial trial

. Ocon , 284 S.W.3d at 887.
If an Article 36. 22 violation is prove d , there is a rebuttable p re sumpti on of injury to the accused that may wa rra nt a mistria l. Jenkins v. State , 493 S.W.3d 583,
612 (T ex . Crim. App. 2016)

. When determi ning wh ether the State sufficiently re butted the presumption of harm, we view the evidence in the light most favorab le to th e trial

court ’ s ruling and defer to the trial court ’ s r esolutio n of historical facts and its
cred i bi l ity determinations. Id. When evidence conflicts , th e trial court does not abuse
its dis cretion by overruling the motion fo r mistri al. Hughes v. State , 24 S.W.3d 833,
842 ( Tex. Crim. App. 2000)

. 12

12 I n H ugh es , two Stat e ’ s witnesses testified tha t they overheard a conversat ion b etween an ass istant prose cuting attorney and a State inve stigator about an alleged discussion the assistant prosecuting attorne y had with a juror s itting on th e ap p ellant ’ s case. 24 S.W.3d at 841. Th e trial court held a hearing on the matter i n whi ch several individuals testified. Id. On the appellant ’ s be ha lf , the two State ’ s witnesses reit erated their claims that they had heard the assistant prosec uting attorn ey r e late to the20 B ecause mistria l is an extreme remedy, less d rastic altern at i ves may suffice , such
as i nstructing t he jury to consider as evidence only the testimony a nd exhibits admitted through wit nesse s o n the stand or questioning the jury about the extent of any prejudice. Jenkins , 493 S .W.3d at 612

. That is, ju ror questioni ng is not a mandatory remedy under Articl e 3 6. 22 or under Rule of Evidence 606(b), which perm its

— but
does n ot require

— juror testimony rel ating to improper outside influence

. Ocon , 284 S.W.3d at 886 ; 13 see Tex. R. E vid. 606( b)(2)

. A s the State points out , th e r ecord does not reflect that anyone act ually

conv ersed with any jurors in vio lation of Article 36. 22

. Further, we cannot say th at the

in vestigat or her conver sation with a male j uror. Id. In response, the Stat e called the investiga tor, his partner, a supervising prose cuti ng attorne y, a prose cutor on t he appellant ’ s case, and the assistant prosecuting attorney at issue , wh o co n firmed that th e allegation was inve stigated but determined that no conversation o r con tact wit h a ju ror had taken place and that the State ’ s witn esses had misund ers tood. Id. at 841

– 42. At the hearing ’ s co nclusion , the trial court told defense counsel that it remained unconvinced o f any improper co nduct and denied the request s t o examine the jurors in camera and to declare a mistrial

. Id. at 84 2. The Co urt o f Cri minal Appeals held t hat there wa s no abuse o f discretion in the trial court ’ s decision not t o in v estigate the matter furth er by co nducting in camera examinations of individual ju rors because the testimony conflicted about whether any imp roper com municat ion had occurred

. Id.

13 In O con , during the tr ial ’ s guilt

–

innocence phase, defense counsel over h eard a ju ror i n the men ’ s room speak n egatively about the agg ravated

- sexual

- assault

- of

- a

ch ild trial an d its effect on his schedule while ta lking on his cell pho ne when another juror was in the restroom

. 284 S.W.3d at 882. The trial cour t reminded the jur y on f

our separate occasions du ring t he guilt

–

inn ocence phase that they wer e no t to talk ab out the case with an yone , and nothing indicated t hat th ose in structions had failed to remedy the situation. Id. at 88 3 , 887

. Further, although the juror spok e neg ativ ely about the appellant and the cas e, the a ppellant presented no evid ence that the ju ror received any information as a result of the phone conv ersation. Id. at 8 87.21 trial court abused its discretion here because it heard testimony from the ja il witnesses
and the intern and was entitle d t o resolve t he facts based on its deter mination o f the ir
credibil i ty even wit hout questi oning jurors about what they might have heard

. See Jenkins , 493 S.W.3d at 612

. And t he trial court included an instruction in the jury
char ge that jurors were permitt ed to receive evidence “ only in open cour t ” and t ha t

“ no juror is permitted to communicate to any other juror anything he or she may have heard regarding the case or any witness therein, from any other source tha n open

court. ” Acco rdingly, we conclude that t h e trial court did not abuse it s discreti on by denying Wood ’ s motion for mistrial, an d we overrule his fourth issue. 14

14

We also note that t o the exte nt a ny juror actu ally over heard the hallw ay conv ersation, it is u nli kel y that what was heard c o ul d have been measurably worse tha n w hat had a lready been presented on the stand about Wood ’ s jail behavior

. Arm strong, who had wor ked at the jail for nineteen years , testified a bout messages , th reatening and other wise, th at W ood ha d sent fro m t he jail on a county tab let that he paid a fee to use. Wood ’ s messages stated , among other things, “ [ D on ’ t think ] I c an ’ t reach out and take [ ] a [ ] life from in here ” and threate ned to find out in discover y who had hurt his girlf riend a nd then f ind their pare nts and “ sca re the f

- ck out of them . . . [and] then

. . . break their f

- cking bones real violent like [they ] did to [his] ga l. ” Wilson testified that on November 26, 2021, Wood had refused to comply with ins tructi ons tha t his visit atio n was ov er and that it took three jailers to take him back to his cell, during which time Wood st ruck Tran in the fa ce with his elbo w , tried to bite Wilson, and injured Saxon , and a video o f the altercation was admitted into
e vi denc e and published to t he j ury . T ran, who had just finished the police acad em y by the time of trial, also testi fied a bout that incident and said that there had been other incidents with Wood before that on e . Tra n also sta te d that Wood told him that when he saw him outside of the jai l, he was going to “ f

- ck [Tran] u p. ” Saxon was not c alled to tes tify.22 C
. Cross

- ex amination
In his thi rd is sue, Wood argues that the t rial court erred by n ot allowing him to

as k Officer Richie about prior p ol i ce misconduct during cr oss

- exa mination

. Spec ifically, he complains that his ri ghts were violated under the Sixth Amendment ’ s Co nfrontation Clause and Rules of Evidence 608(a)(1) and 61 1( b). The S t ate contends that Wood failed to preserv e his Co nfr ont ati on C lau se argume nt and that the trial
court d id not otherw ise abuse its d iscretio n b ecau se the trial court could have reasonably concluded th at Wood was attackin g Office r Rich ie ’ s character in g eneral.
1. Bac kground
At the b eginning o f Officer Richie ’ s direct t e stimony, h e listed the police departments wher e he h ad wor ked during his 23

- year career . He stated that he had

st arted his career in 1999, with “ [a]lmost 11 months ” with the City of Bridgeport Police Dep a rtment, f ollowed by the C ity of Runaway Bay from 20 0 0 to 20 13 and,
bef ore leaving Runaway Ba y to work for the City of B oyd Police Department, he had
been Runaway Bay ’ s int erim p olice chi ef. The prosec u t or then asked how he was appointed a s inte rim police chief, and Officer Richie replied tha t the city co un c il had
voted him in

. Officer Richie testified that he left the City of Boyd a t the rank of
assist ant police chief to begin working fo r the City of Rhome a nd t hat he had worked
for Rhome for a little over two weeks before the June 13, 2 021 shooting. He w as still working for Rhome ’ s police department at the time of the trial.23 After Officer R ichie ’ s direct testimony and outside the j ury ’ s presen ce , Wood ’ s defense c ounsel arg ue d that t he prosecut or ’ s eliciting testimony that a city council ha d voted, or vouc he d , for the type of officer t hat he was had put the officer ’ s c hara cter and c aliber a s a police officer into issue

. The tria l court asked, “ Well, is t hat Runaway Bay? ” The prosecutor replied, “ Yeah. Tha t was many years ago. ” The trial court then
overruled d e fense counsel ’ s request , s t ating , “ I don ’ t kno w why . . . it was brought up that the city council would have p ut hi m in that p osition, but I do n ’ t think that opens the door to anything that would be relevant in punishment that we ’ re in. ” Wood ’ s counsel as k ed the trial cou rt to “ at some poin t . . . put in the copies of the investigation and the decisions made by the var ious police de par tments for purposes
of the recor d a nd preservi ng [the] objection, ” and the trial court stat ed that it would
al low her to do so. Befor e trial resum ed on the last day, defense counsel offered, and the t rial court
accep ted for the record , the items she had wanted to use during cross

- e xaminati on. The excluded items are from the B ridgeport and Boyd Police Department s . There are

n o r eports from Runaway Bay or Rhome

. T he first Bridgeport report is a n A ugust 23, 200 0 neglect

- o f

- duty report issued
for Officer Richie ’ s August 18, 2000 failu re “ to submit his citations for the da y prior to going end of watch , ” which was contr ary to stand ar d policy, and which led to an August 22 , 2000 complaint a bout a citation that had n ot been ent ered i nto the24 department ’ s computer system. At the time, he had been with the d epartment for ni ne months; he was put on probation and received an offi cial rep ri ma n d

. The second Bridgeport report is a S eptember 1, 2000 complain t about con duct unbecoming an officer based on Offic er Richie ’ s August 31, 2000 taunting of an
inmate on ment al

- health watch when he transported a prisoner to jail for booki ng; the complaint l e d to his suspension with pay a few days later, and ult imately h is resignat ion in l ieu of termination a few days afte r that. The accompanying ev aluati on noted that Officer Richie had established a pattern of un profes sional beha vior and that complaints “ s ta r ted to come from citizens throughout the [C]ity of Br idgeport. ”
The Boyd report is an April 8 , 2021 investigat ion that result ed in a finding t hat on March 2, 2021, Officer Richie, as assist ant police ch ief , had violated the

e mergency

- vehic le

- response po li c y , which required that no officer dri ve over 15 miles per hour or more over the posted speed limit (25 m iles per hour) while running Cod e
2 , and that he had violated the p rofessional conduct code

. O ffic er Richie was placed on administrative leave with p ay during the investigation and then issued immediat e termination of employment upon its c onclusion a week later

. 2. Preservation Generally, a defe ndant forfeits a constitutional erro r by failing to object on th at basis at trial. Golliday v. State , 560 S.W.3d 6 6 4, 670

– 71 (Tex. Crim. Ap p. 2018) ; Anderson v. State , 301 S.W.3 d 276, 27 9

– 80 (Tex. Crim. App. 2009)

. This is because the
trial cou r t “ should know when it is being asked to make a constitutional ruling , ” as25 constitutional error is subject to a much strict er harm analysis o n appeal. Clark v . State , 365 S.W.3d 333, 3 40 ( Tex. Crim. App. 2012)

. “ The court needs to be presented with
and have the c hance to rule on the specific cons tituti onal objection because it can have such heavy implications on appeal.” Id. B ec a use it is not a pparent o n this record
that Wood raised a Confr onta tion Clause obj ection, see Tex. R. App. P. 33.1, we overrule this portion o f his fourth issue.
3. O ther evidentiar y objections
W e revi ew the trial court ’s de cis ion on the admissib ility of ev id e nce for an
abus e of disc retion. Johnson v. State , 490 S.W.3d 8 95, 908 (Tex. Crim. App. 2016) . A
trial court abuses its discretion when its decision falls outside the zone of rea sonable disagreement , and if its evidentiary ruling is correct under any app li c able theor y of law, it w ill not be disturbed even if the trial court gave an inco rrect or insufficient
reason for the ruling. I d. Further, if the trial court abused its discreti on , we will not

revers e its judgment unless the error affected a substantial r i ght of the appe llant, th at is, unless the error had a substa ntial and injurious effe ct or in fluence in determi ning the jury ’ s verdict. See Tex. R. App. P. 44.2 (b); Bosquez v. St ate , 446 S.W.3d 581,
585 (Tex. App.

— Fort Worth 2014, pet. ref’d)

.

a. R ule of Ev id e nce 608
U nder R ule of Ev ide nce 608(a ) , a witnes s ’ s credibility ma y be attacked by

te stimony about his reputation for having a cha racter for truthful ness or untruthfulness or by opinion testimony about that cha racter, but such evidence is26 admissible only a f ter the witness ’ s charac ter for truthful ness has b een attacked. Tex.
R. Evid. 608 ( a)

. Under Rule of Evidence 6 08( b), exc ept for a criminal conviction
under Rul e 609, a party may not inqui re into or offer extrinsic evidence to prove specific instances of t h e witness ’ s con duct to a ttack or support his chara cter for

t ruthfulness. Tex. R. Evid. 6 08( b). The record does not reflect that anyone attacked
Officer Richie ’ s character for tr u thful ness ; accordingly, the trial court did not abuse its
discretion by d en yi n g admission of the emplo yment records on this basi s , and we
overrule this portion of Wood ’ s third issue.
b. R ule of Evidence 611
U n der Rule of E vide nce 611(a), the trial court sho uld exercise reasonable
control over the mode and ord er of examining witness es and present atio n of evid ence to make those proced u res effective for determining the truth , to avoid wasting time , and to protect witnesses from harassment or undue embarrassment

. Tex. R. Evid.
6 11(a). A witness may be cross

- exami ned on any relevant matt er , including cred ibility.
Tex. R. Evid. 6 11(b). The Rule s of Evidence generally permit a defendant to cross

ex amine a witness for his purported bias, interest, and motive without undue
limitation or arbitrary prohibition. Johnson , 490 S.W.3d at 910.
W hile n o n e of th e empl oyment re cords cast Officer Richie i n a particularly
fav orable light, none of them appear to have any bearing on his credibility regarding
Wood ’ s having shot him in the foot . To the contrary, the dashboar d

- and body

camera footage establis he d what happened at the s cene , and me dical testimony by an27 orthopedic surge on confirmed that Officer Richie had been shot in the foot. Accordingly, we conclude tha t t he trial court did not abuse its discretion by excluding
th e evidence on this basis , and we overrule the re main der of Wood ’ s th ird issue.
D
. Mitigatio n ev idence
I n his fourth issue, W ood argues that he should have been allowed to present evidence that he was held in pretrial sol itary confin e ment “ in vio lation of state [jail ] and Wise County Ja il standards ” because he had a con stitu t iona l right to present evidence designed t o mi tigate his punishme nt
. Wood contends that this evidence

wou ld have shown that his “ pre

- trial confinement had been oppressive ” and would
have countere d the “ great lengths ” t o wh ich the State went to pu nish him “ based partly on his behavior whi le at the Wise Count y Jail awaiting trial. ” The State responds
that the trial court di d not abuse its discretion bec ause the tri al co urt cou ld h av e

r easonably fou nd that the evidence w as irrelevant to s ent encing or was properly
excluded

. 1. B ackground During Armst rong ’s tes timony , Wood ’ s counsel attempted to int roduce
evidence tha t jail disciplinary hea rings could b e reco rde d, and the prosecutor objec ted
to rel evance. The trial court as ked W o od ’ s counsel to explain the relevance, a nd she
rep lie d, “ [M]y client has been held in solitary confinement since November the 26 t h
of 20 21 , ” which sh e argued was contrary to the In mate Handbook ’ s terms , which28 allowed for no more than 30 days ’ solitary c on f ine ment for an infraction

. A t that point, the trial c ourt excused th e jury from t he cou rtroom. As soon as the jurors departed, the following co llo q uy occur red:
T HE COURT: All ri ght. Ou tside the presence of the jury, [De fense counsel] , I cannot imagine w hy any disciplinary hearing information would be releva nt to how the ju ry decides pu nishment should be rendered in this case, so I do n ’ t unders tand w here you ’ re going with this. [ Defens e Counsel] : Your Honor, it ’ s our po sition that my client has been held in s olitary confinement in violation of the ru les and standards of Te xas law and t he Wise C ounty Sheriff ’ s Handbook. I do not have, and I ’ ve subpoe naed all the records, disciplin ary hea ring records that would support a c onsecutive 30

- day confinement in
con tr a d iction to the handbook from November the 2 6th thr ough 2021 [sic]. It is certai nly mitig ation. We believe it ’ s mitigation to sho w the way he has been tre ated in jail in that h is righ ts have been violated by being held in solitary confinement in violatio n o f the law and of their own rules. Def ense counsel then added that s he doubted the hearings had taken place and that
was wh y sh e had asked if there were any record i ngs a nd that it went to the bias of the jail s taff called by the prosecutor
. The trial cou rt sustained the prose cutor ’ s objection, finding t hat the infor mati on was not relevant , but it allow ed d e fense c ounsel to as k Armstrong whether h e had been asked to provi de jail video that would have shown an
earlier witnes s ’ s listening to Wood ’ s conver sat io n with another i nmate through the

“ to ilet phone

. ” 15

15 Dep uty S eth Sirman , a jailer in July 2021, te stified that Wood had been in a segr egati on c el l on the same side o f the hallway as another inmate with whom he could communicate by sho utin g into the toilet pl umbing , i.e., the “ t oilet phone. ”29 Before the jury, defense counsel asked Arm stro ng to ident ify who had requested the November 26, 2021 jail video (the day Wood fought with Tran, Wilson, and Saxon) , and he replied that the DA ’s investigat or had requested it

. She then asked Armstrong whether he had been asked to provide video f rom Ju ly 10, 2021, showing
where D e pu ty Sirman m ight have been in t he j ail, and he r eplied, “ No , m a ’ am. ” After the jury had been dismissed for t he day, d efense counse l o ffer ed the Wise County
Inm ate Handbook that “ includes, among other things, t he pu nish ments for both a

ma jor infra ctio n and a minor infraction. ” The trial c ourt added the exhibit to the
other court exhib its enter ed f or record pu rposes
. D efense counsel st at e d th at the testimony she would have elicited would ha ve been t hat even with a major in frac tion that result ed in an indictm ent, “ an individual cannot be held in solitary co nfinement for anything greater than 30 days ” an d that
Wood “ has been held in so lit ar y con finement ” from Novemb er 26, 2021 , to August 18, 2 022

. The prosecutor repli ed , “ [W]e are not stipulating that he ’ s been in soli tary

t hat entire time, because I know there have been tim es wher e h e has been put back in general p opulation and then retur ne d to soli tary. ” During th e defense ’ s case, Wood ’ s mother agree d th at W ood had b een in soli tary confinement for many months , but she
d id not state for how long or whether it was continuous

. N o one produced any

Deputy Sirman testified that o n July 10, 2021, he h ea r d Woo d say over the toile t ph one, “ [ W ] hen I shot tha t cop, I w as a iming for his head. The only reason he ’ s ali ve today is by my grace. ”30 e videnc e regarding the effect of solitary con fi n ement on in mat es genera lly or on
Wood in particular

. 2. L aw on punishment evidence
D uring punishment, “ evidence may be offered by the [S]tate and the defendant

as to an y matter th e court deems relevant to sentencing, including but not l imit ed to ”
the defen da n t ’ s prior crim inal reco rd, general reputation, and characte r; the
circumstances of the offense for which he is being tried; and

— notwithstand ing Rules
of Evidence 404 and 405 16

— a ny other evidence of an extraneous crime or bad act
that i s shown beyon d a re as o nable doubt by evidence to have b een committed by t he
def endant or for which he could be held criminall y responsible, re g ardless of whether he has p reviously been cha rged with or finally convicted of the crime or act. Tex.
Code Crim. Proc. Ann. art. 37. 07 , § 3 (a)(1).
E vidence i s “ relevant to sentencing ” u nder A r ticle 37 .07 if it is “ helpful to the jury in determining the appropriate sentence for a particular defendant in a part icular

case. ” Beham v. State , 559 S.W.3d 474, 479 (Tex. Crim. App. 2018)

. In B eh a m , the court discussed p unishment

- phase facts , whi ch come in two vari eties

— normative fa cts and subsidiary facts. Id. at 480. Normative facts are those that directly impact the
factfinder ’ s n ormative response to the def endant, such as evidence beyond a

16 Rule of Evi dence 404 addresses limita tions on evidence of character , crimes, and other acts, and Rule of Evidence 405 addresses methods o f proving character. S ee Tex. R

. Evid. 404

– 405.31 r ea s onable doubt that the defendant committed an extra neous criminal offense

— a clear basis upon which a jury could legitimately form a clear er opinion of the proper
p unishment for the defendan t ’ s conduct. Id. Subsidiary facts, on the other hand, are
facts t ha t are relevant insofar as they assist in proving or disproving a normative fact, such as eyewitness testimony pertaining to the extraneous offense, an alibi, or

ev idence of a w itnes s ’ s credibility. Id.
A normative fact ’ s admissibility depends on the boun ds placed by the Leg islat ure or Constit u t ion on what a jury may properly consider in sentencing , and within these polic y
- defined bounds, the t rial court has wide discretion to de em virtually any matter relevant to a proper sen tence. Id. But the relevan ce o f a particular

s ubsidiary fact is governed by Ru le of Evidence 401, that is, whet her it has any tendency to make more or less probable the existence of a normative fact properly at issue in the case. Id. at 480

– 81 ; see Tex. R. Evid. 401.
I n Beh a m , when the d e fendant willi ngly disp layed on Faceb ook photogra phs of himself posing with drugs an d pointing a handgun at the camera, testimony that the materials appeared in context to be c elebratory of the gang life style , or at leas t gang

rela ted, allowed the jury t o b etter underst and the d efendant ’ s decision to pro mote them and was thus normatively rele vant to the jury ’ s determin ing a proper punishment for his crime of aggravated robbery. 559 S.W.3d at 483

– 84 ; see also
Watkins v. State , 619 S.W.3d 265, 290

– 91 (Tex. Cr i m. App. 2021 ) (n oting tha t collection of booki ng records, pen packets, and judgments of prior convictions used32 to pro ve two prior convi ctions for enhancement and other extraneous offenses were
at least “ subsidiary ” facts tha t could assist the fact finder i n finding normati ve facts

s uch as the prior off enses ’ commission and thus should have b een dis closed upon a
proper Article 39.14 discovery request ).
L

ikewise, the Court of Crimin al Ap peals ha s held that a trial court could

r easonably conclude that eviden ce offered to show that a defendant had committ e d aggravated perjury during his trial ’s guilt

–

innocence phas e would be helpful to the jury in determining the appropriate sentence. McGee v. State , 233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (noting , per Unit ed States v . Grays on , 438 U.S. 41, 50, 98 S. Ct . 2610 , 2616 (1978) , that a defendant ’ s truthfulness o r mendacity while testifying on his own
behalf is relevant to sent encing )

. On the oth er hand, evidence that would exonerate
th e defendant is not admissible d u rin g a trial ’ s p unish ment phase to relitigate his or her guilt. Id. Com pare Stiehl v. State , 585 S.W.2d 716, 718 (Tex. Crim. App. [Panel Op.] 1979) (stating, in construing an earlier , narrow e r version of Article 37.07, that
appropr iate fact ors had in comm o n a relationship to t he offens e ’ s circumstances or
the defendant before or at the time of the offense , and th at factors arising after the offense and indep e ndently of the defendant sh ould not be all owed in evidence in mitigation of pu n ish ment , including t h e d efendant ’s pretria l confinement
circums tances , which had nothing to do with the of fense or any statutory miti gating
factors ) , with Contreras v. State , 59 S.W.3d 362, 365 (Tex. App.

— Houston [1st Dist.] 2001, no pet.) (noting that Article 37.0 7 was a mend e d p ost

- Stiehl to make admissible33 “ a ny matter the court deem s relevant to s entencing , ” including evidence arising after
the offense ).
T he sentencing process consists of weighing mitiga ting and aggravating factors
and adjusting the se ntenc e ’s severity consi s ten t with this calcul us. Milburn v. State , 15 S.W .3d 267, 270 (Tex. App.

— H ouston [14th Dist.] 2000, pet. ref’d)

. The

a dmissibility of punishment

- phase evidence that the trial court de ems relevant is subject to a Rule 403 analysis

. See Rogers v. State , 991 S.W .2d 263, 266 (Tex. Crim. App. 1999) (hol ding t rial court did not abuse its discretion when t he Court of Cri minal Appeals could not say as a matter of law that the probative value o f the length of the
defe ndant ’ s prior sentences was substantially out wei g hed by the danger of unfair prejudice).
3. W ood ’ s ex cluded evidence
T he Inmat e Handbook sets out 47 rules and reg ulations. It lists Rule 4

— n o fighting, with o r w ithout wea p ons

— a s a major infraction subject t o the highest disciplinary sever ity. It further sta t es that “ [i]nma t es who violate any jail r ule may have disciplinary action tak en again st them ” that may result in disciplinary segregation by

“ confinem ent in single

- cell separation for up to 30 days. ” T he hand book does not

state a limitation on consecutive v i o lations. The hand book al so sets out the disciplinary pro cedure

— including written charges and a hearing if the charges are
referred to the disc iplinary board , where the inmate “ will be allowed to call any34 witnesses, present doc u mentary evidence or seek t he aid of other inmates o r staff to
assist in the inmate ’ s de fense

. ”
W ood did not put on any evidence to support his counsel ’ s assertion that he had been in solitary confinement since November 26, 2021, and the prosecu tor did not put on any evide nce to su p por t his coun tervailing assertion that W ood h ad been in and out of solitary conf inement. Nei ther party put on any evidence r egarding the existence or absence of any disciplinary hearings 17 or any ev idence about the gene ral
effect s of soli tary conf inement o r it s particul ar effect s on Wood that might have
contributed to his jail behavior

. Cf. Ex parte Jennings , 662 S.W.3d 379, 394 (Tex. Crim. App. 2018) (Al cala , J., conc urring and dissenting) ( s tating that solitary conf i ne ment

“ appears to have seriou s psychol o gic al and phy sical effects on human beings. When the amount of time in this type of confinement reaches about thirty years, as her e, I can conceive of these conditions possibly becoming cruel and unusual punishment. ”) ; 58 Tex. Jur. 3d Penal & Cor rectional Ins titutions § 82 (2 023 ) ( “ [A] lthough administrative segregation of prisoner [ s ] is not per se or ne cessarily unconstitutional, segregated confinement may violate the constitutional prohibition against cruel and unusual pu nishment if it is extremely dispro port ion ate, arbit rary, unnecessar y, or without sufficient penological justification. ” ) ; 1 Rights of Prisoners § 3:20 (5t h ed.

17 Although Wood ’s counsel asserted that she had su bpoenaed the “disciplinary he arin g re co rds , ” she did n ot put into evidence her subpoena or anything that it had produced.35 20 2 3 ) (listing common psyc hiatric symptoms among isolated inmates to include
perce p tual distorti ons , hyperresponsivity to e xternal sti muli , and p roblems with impulse control).
4. A nalysis
Ba sed on the above, we cannot say that the trial court abused its discr etion b y finding the Inmate Handbook irrelevant as mitigation evidence because nothing was
pro vided to draw a connection b etween t he e f fect of Wo od ’s treatment in prison with the jur y ’s a ssessment of punish ment. 18 Without such subsid iary a nd normative facts to connect the dots between Wood ’s behavior w hile awaiting trial, his time in solitary
confin ement while awaiting trial, and his ulti m ate punish ment for shooting Officer
Richie in the foot an d shooting at Officer Brown, the trial court had no basis on whi ch to conclude that such e vidence would be relevant in sentencing. Cf. Rose v. State , No. 02

- 2 1

- 00178

- CR, 2023 WL 308170, at *11 ( Tex. App.

— Fort Worth Jan. 19, 2023, no pet.) (mem. op., not designated for publicat ion) (discussing mitigation evidence in
ine ffe ctive

- assistance cont e xt and quoting Sears v. Upton , 561 U.S. 945, 954

– 56 , 130 S.
Ct. 3259 , 3 266 (2010), for the propo s ition th at t h ere is no prejudice when the

18 In comparison, i n Stiehl , the defendant had prevailed in a federal suit alleging a violation of his rights because of his pretrial

- confinement conditions. 585 S.W .2d at 717 . The court con clude d that this information was properly excluded as evidence in mitigation of p unishment bec ause it was “properly the subje ct of an entirely s eparate action. ” Id. at 718

.36 mitigating evidence “would barely have altered the sentencing profile presented to the
decis ionmake r ”). Accordingly, we overrule Wood ’s fourth issue.
I II . C onclusion Having overruled all of Woo d ’ s i ssues, we affirm th e t ri al c o urt ’ s jud gment s .

/s/ Elizabeth Kerr El izabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : October 26, 2023