NUMBER 13-20-00029-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

CHARLES DUNN A/K/A

CHARLES BENNETT DUNN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 272nd District Court 

of Brazos County, Texas.

 

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Memorandum Opinion by Justice Hinojosa

Appellant Charles Dunn a/k/a Charles Bennett Dunn appeals his conviction for 

aggravated assault. See TEX. PENAL CODE ANN. § 22.02(a)(2). By two issues, Dunn 

argues that the trial court abused its discretion in: (1) permitting the State to reopen its 

case after closing to admit a courtroom recording displaying alleged threatening gestures 
2

made by Dunn toward the prosecutor, and (2) denying his motion for a new trial. We 

affirm.

I. BACKGROUND1

Dunn was charged by indictment with aggravated assault with a deadly weapon. 

See id. The indictment contained one punishment enhancement paragraph, elevating the 

charge to a first-degree felony for punishment purposes. See id. § 12.32.

A. The Trial

On November 11, 2018, several regular patrons of the Green Hornet bar in Bryan, 

Texas met at the Green Hornet to play dominoes, watch sporting events, and drink. 

Among the men were Dunn and Danny Howard who had known each other for years. The 

witness accounts of the events that took place all vary to some degree; however, the 

common facts are as follows. 

Dunn and Howard had just begun a game of dominoes when Dunn noticed one of 

the dominoes was missing. Dunn accused Howard of cheating. The men argued, and 

then Howard left the bar. About ten minutes later, Howard returned to the bar. When 

Howard returned, Dunn began arguing with him again and commented that Howard had 

a gun. Howard, standing in the bar’s entryway, assured Dunn that he was unarmed. After 

Howard said that he was unarmed, Dunn pulled out a gun and attempted to shoot Howard, 

misfiring on his first attempt. Dunn shot again, this time hitting Howard in his side. Many 

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a 

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) 

(delineating the jurisdiction of appellate courts); 73.001 (granting the supreme court the authority to transfer 

cases from one court of appeals to another at any time that there is “good cause” for the transfer). 
3

witness accounts assert that Howard did not have a gun and did not show aggression or 

threaten Dunn in any way; however, Dunn asserts that he shot Howard in self-defense. 

After Howard was shot, he was transported to the hospital. The trauma surgeon 

who performed emergency surgery on Howard testified that Howard’s injuries were lifethreatening; however, after surgery he was able to recover. Officer Darrel Fikes of the 

City of Bryan Police Department testified that when he questioned Dunn about the 

shooting, Dunn never claimed that Howard had a gun, denied shooting Howard, and 

claimed that Howard “must have shot himself.” 

A jury found Dunn guilty of the felony offense of aggravated assault with a deadly 

weapon and found the enhancement paragraph to be true.

B. The Punishment Phase

During the punishment phase of the trial, the State presented evidence that on 

December 20, 2018, Dunn failed to appear in court for his bond hearing. A warrant was 

issued for Dunn’s arrest for failure to appear in court, and a Brazos County Sheriff’s 

Deputy’s team made repeated failed attempts to locate and arrest Dunn. On April 8, 2019, 

the Sheriff’s Deputy located and contacted Dunn, who subsequently lied about his identity 

claiming his name was J.B. Jones. Nevertheless, the sheriff’s deputy recognized Dunn 

and arrested him on six outstanding warrants and for failure to identify as a fugitive. 

The State also submitted evidence of a 2014 incident over a parking space. A man 

had parked on Dunn’s property next to the Green Hornet, so Dunn confronted the man 

and then pulled out a pistol and pointed it at him. The man got into his vehicle to leave 

and then Dunn shot the pistol four times into the driver’s side of the vehicle, hitting the 
4

man one time in his leg. Dunn alleged he acted in self-defense. The State also introduced 

extensive evidence referencing Dunn’s prior criminal history, admitting exhibits for eight 

prior convictions.

Dunn’s defense during the punishment phase of trial included his sister’s testimony 

that Dunn was shot and seriously injured in an incident in the 1960’s, causing him to have 

a fear of being shot. During his sister’s testimony, the prosecutor asked to approach the 

bench and reported the following to the trial court:

Judge, [Dunn] is . . . looking at me and pointing gun fingers at me . . . I don’t 

know what that means, but it’s threatening. And he did that to [co-counsel] 

yesterday.

The Court admonished Dunn for his conduct and warned him to not do it again. 

Dunn claimed that he had not threatened anybody, nor pointed gun fingers at the 

prosecutor. After Dunn’s sister’s testimony, both sides rested and closed. Following a 

recess, but before the reading of the Court’s charge or closing arguments, the State 

requested to reopen evidence pursuant to article 36.02 of the Texas Code of Criminal 

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.02. The State sought to introduce 

video evidence from inside the courtroom showing Dunn’s threatening gestures toward 

the prosecutors. Dunn’s counsel objected that the State had already rested and closed, 

the evidence was irrelevant, and the evidence would be unduly prejudicial to Dunn. The 

trial court overruled those objections and allowed the State to reopen. The State 

voluntarily agreed not to reference the threats during closing argument, but the video was 

played for the jury. 

Finding one enhancement allegation true, the jury assessed punishment at 

confinement for life and a $10,000 fine. The trial court signed a judgment in conformity 
5

with the jury’s verdict. 

C. The Hearing on Dunn’s Motion for a New Trial

After the trial, Dunn filed a motion for a new trial based on alleged juror misconduct. 

During the hearing on the motion for a new trial, Donnie Manry, a court-appointed 

investigator for Dunn, testified that during the trial he recognized Janice Terrell as a juror 

and Tim Terrell, her husband, as an observer in the courtroom gallery for approximately 

three hours the morning of the second day of trial. Manry testified that Tim was present 

in the courtroom during a period when the jury had been excused for counsel’s argument 

at the bench. Manry also testified that the Terrells went to lunch together that day, but he 

could not hear any conversation between the two and had no knowledge of any sort of 

jury misconduct taking place. 

Tim testified that he was not paying attention after the jurors had been dismissed 

and had no knowledge of what was being discussed by the attorneys during the time that 

counsel was at the bench. Tim also described the only conversation he had with his wife 

about the case: 

The only comment that was made, my wife asked me what did I think. I said 

‘This is interesting.’ Other than that, I said, ‘We don’t need to talk any more 

about it.’

Tim further testified that he did not talk to his wife about the facts of the case or 

what the outcome should be. Tim is a retired firefighter who had previously been put 

“under the rule” when he testified in a criminal case, so he testified that he understood 

the importance of not discussing the case with the jurors. 

Following the hearing, the trial court overruled Dunn’s motion for a new trial on 

alleged juror misconduct. Dunn appeals.
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II. MOTION TO RE-OPEN EVIDENCE

By his first issue, Dunn argues that the trial court erred by allowing the State to 

reopen its case to admit video evidence of events that took place in the courtroom which 

jurors could have observed directly.

A. Standard of Review & Applicable Law

A trial court’s decision to allow a party to reopen evidence under article 36.02 of 

the Texas Code of Criminal Procedure is reviewed under an abuse of discretion standard. 

Birkholz v. State, 278 S.W.3d 463, 464 (Tex. App.—San Antonio 2009, no pet.). A trial 

court abuses its discretion if it denies a timely motion to reopen and the proffered evidence 

would have materially changed the case in the proponent’s favor. Id. The trial judge’s 

ruling is not to be disturbed unless it “falls outside the zone of reasonable disagreement.” 

Id.

Article 36.02 states that “the court shall allow testimony to be introduced at any 

time before the argument of a cause is concluded, if it appears that it is necessary to a 

due administration of justice.” TEX. CODE CRIM. PROC. ANN. art. 36.02. A “‘due 

administration of justice’ requires a judge to reopen the case if the evidence would 

materially change the case in the proponent’s favor.” Birkholz, 278 S.W.3d at 464; Peek 

v. State, 106 S.W.3d 72, 75 (Tex. Crim. App. 2003). The evidence must not only be 

relevant, it “‘must actually make a difference in the case’ and not be cumulative of 

evidence previously presented.” Id. Finally, the new evidence must be introduced prior to 

closing argument. Birkholz, 278 S.W.3d at 464

During the punishment phase of a trial, the State may introduce any evidence of 
7

an extraneous crime or bad act that is shown beyond a reasonable doubt to have been 

committed by the defendant. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). Any 

non-constitutional error that does not affect the defendant’s substantial rights must be 

disregarded. TEX. R. APP. P. 44.2(b). “A harmless error analysis requires consideration 

of all evidence admitted at trial and the record as a whole.” Birkholz, 278 S.W.3d at 468–

69.

B. Analysis

During the punishment phase of the trial, Dunn began making “finger guns” 

towards the prosecutor. The State approached the bench to make the judge aware of 

Dunn’s threatening behavior, and the judge responded by informing Dunn that if it were 

true, it would hurt his case, so he needed to stop. Dunn responded by expressly denying 

that he made any threats. Both the State and Dunn rested. Shortly thereafter, but before 

the jury charge was read or closing arguments began, the State asked to reopen its case 

pursuant to article 36.02 to admit video evidence of Dunn’s threatening behavior. See

TEX. CODE CRIM. PROC. ANN. art. 36.02. 

Dunn objected on the basis that this evidence was not relevant, any relevance was 

outweighed by unfair prejudice, it did not go to the main issue of the case, the threats did 

not qualify as a “bad act” under article 37.07, and that by admitting the evidence the trial 

court would be telling the jury that his actions were a bad act. See TEX. CODE CRIM. PROC.

ANN. art. 37.07, § (3)(a)(1); TEX. R. EVID. 403, 404(b). The State responded that the video 

evidence was pertinent to evidence of his violent history because the video was of Dunn 

“pointing gun fingers” at the prosecutor which is a threatening gesture and a “bad act.” 
8

See id. The Court overruled Dunn’s objections, and the video was admitted and shown 

to the jury. Neither the video nor Dunn’s threatening acts were mentioned in closing 

arguments. 

To satisfy article 36.02, the State’s evidence of Dunn’s threats had to meet the 

following requirements:

(1) materially change the case in the State’s favor;

(2) not be cumulative of evidence previously presented; and 

(3) must be introduced prior to closing arguments

See Birkholz, 278 S.W.3d at 464. We address each article 36.02 factor in turn.

1. Materiality 

Dunn argues that the video evidence did not address the main issues in the case. 

In a punishment hearing, article 37.07, § 3(a)(1) allows the trier of fact to consider the 

defendant’s prior criminal record, his reputation and opinions on character, the 

circumstances of the offense on trial, and other extraneous offense or bad act shown 

beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art. 37.07, § (3)(a)(1). The 

State pointed out that throughout both phases of Dunn’s trial, it presented evidence of 

Dunn’s violent history. In response to the evidence, Dunn testified that every violent action 

he had taken was in self-defense, and any other alleged violent actions were lies created 

to get him in trouble.

Our sister court has held that the use of “gun fingers” constitutes relevant and

legally sufficient evidence of a threat of harm if the cumulative effect of the evidence 

alludes to a threatening action. See Barnes v. State, No. 14-18-00689-CR, ___ S.W.3d. 
9

____, 2020 WL 2026033, at *2–4 (Tex. App.—Houston [14th Dist.] Apr. 28, 2020, pet. 

ref’d). Here, given Dunn’s long and violent history of using guns in criminal activities and 

the fact that the trial involved Dunn using a gun and seriously injuring someone by 

gunshot, evidence that Dunn was making threatening “gun fingers” at the prosecutors 

during his trial is relevant to whether Dunn is a continuing danger, which was a factor 

germane to punishment. Thus, because Dunn’s actions were current and relevant to his 

punishment, we agree that the video evidence of Dunn’s courtroom threats had the 

potential to materially change the case in the State’s favor in the minds of the jurors. 

2. Cumulative Evidence

The Texas Court of Criminal Appeals stated that evidence may be admitted under 

article 36.02, so long as it is not “cumulative of evidence previously presented.” Peek, 

106 S.W.3d at 79. Although the evidence tends to prove the same proposition as that 

previously introduced, it is not cumulative if it is dissimilar to the evidence used at trial 

and is additional evidence that bolsters the same point as that introduced at trial. Banker 

v. Banker, 517 S.W.3d 863, 879 (Tex. App.—Corpus Christi–Edinburg 2017, pet. denied)

(discussing New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 867 (Tex. 1962)). “[A]

trial court’s decision on the admissibility of evidence is not a statement upon the weight of 

the evidence.” See Garcia v. State, __S.W.3d __, __, No. 11-18-00357-CR, 2020 WL 

6498159, at *2 (Tex. App.—Eastland Nov. 5, 2020, no pet.) (citing Johnson v. State, 452 

S.W.3d 398, 405 (Tex. App.—Amarillo 2014, pet. ref’d)).

Dunn argues that the video evidence is cumulative because the jury had a firsthand opportunity to observe his conduct and evaluate it. Dunn further argues that by 
10

admitting a recording of events that occurred in open court, the trial court was essentially 

telling the jury that the conduct was relevant to the issue of punishment and that it was a 

bad act which had the effect of creating unfair prejudice which outweighed any probative 

value it could have had.

We disagree. The trial court has broad discretion to determine the admissibility of 

evidence. Schmidt v. State, 612 S.W.3d 359, 369 (Tex. App.—Houston [1st Dist.] 2019, 

pet. ref’d); see TEX. EVID. R. 104. Here, the trial court did not assert an opinion about the 

context or significance of the evidence; it simply determined that it was admissible. See

Garcia, 2020 WL 6498159, at *2.

Further, we conclude that this evidence was not cumulative. This evidence had not 

been previously presented, and, as the State points out, simply because the events took 

place in open court does not mean that all, or any, of the members of the jury were able 

to see Dunn’s actions. The evidence serves to prove the former proposition that Dunn is 

still a threat in society by a new and distinct fact, the evidence had not been previously 

presented, and the evidence goes toward the issue of Dunn’s extraneous bad acts which 

are admissible during the punishment phase of trial. See Banker, 517 S.W.3d at 879; see

also TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).

3. Introduction Prior to Closing Argument 

The State sought to reopen its case under article 36.02 after both sides had rested 

and a short time after Dunn made the threatening gestures toward the prosecutor. Neither 

the reading of the court’s charge nor closing arguments had begun at the point the State 
11

requested to reopen.

4. Summary of Factors

Thus, because the video evidence of Dunn’s threatening gestures toward the State 

was material, not cumulative, and admitted prior to closing argument, the trial court did 

not err in permitting the State to reopen its case under article 36.02.

C. Harm Analysis

Even assuming that the trial court erroneously admitted the video, such error did

not affect Dunn’s substantial rights. See TEX. R. APP. P. 44.2(b). “A substantial right is 

affected when the error had a substantial and injurious effect or influence in determining 

the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the record 

supports that “the error did not influence the jury, or had but a slight effect,” then the error 

is harmless, and the conviction may be affirmed. Johnson v. State, 967 S.W.2d 410, 417 

(Tex. Crim. App. 1998). “A harmless error analysis requires consideration of all evidence 

admitted at trial and the record as a whole.” Birkholz, 278 S.W.3d at 468–69.

Here, the totality of the evidence in the case overwhelmingly supported the 

punishment:

• Howard nearly died from his wounds;

• Multiple eyewitnesses described how Dunn shot Howard while Howard

was unarmed and not threatening Dunn;

• Dunn had shot three different people (Vincent Morgan, Douglas Gantt, 

and Howard) over nearly 30 years, including one over a game of 

dominoes and another over a parking space; 

• Dunn’s eight previous criminal convictions, including for aggravated 

assault with a deadly weapon and injury to a child;
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• Dunn repeatedly lied to the police about what happened; and

• Dunn failed to appear in court and, when found by law enforcement, lied 

about his identity in an attempt to avoid arrest. 

Furthermore, the State’s presentation of evidence about Dunn’s courtroom threats 

constitutes approximately three out of nearly five hundred pages of the record. The State 

did not ask the Court deputy to describe Dunn’s actions, no evidence was presented 

about the impact of Dunn’s threats on the prosecutors, and the prosecutors did not 

reference Dunn’s threats during closing arguments. Thus, jurors had ample evidence to 

impose the maximum possible sentence, independent of the fact that Dunn threatened 

the prosecutors in the courtroom. See King, 953 S.W.2d at 272. In light of the foregoing, 

we overrule Dunn’s first issue.

III. MOTION FOR NEW TRIAL

By his second issue, Dunn argues that he is entitled to a new trial based on 

potential juror misconduct involving juror Terrell and her spouse. 

A. Standard of Review & Applicable Law

We review a trial court’s ruling on a motion for new trial under an abuse of 

discretion standard. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). 

We review the record in the light most favorable to the trial court’s ruling. Quinn v. State, 

958 S.W.2d 395, 402 (Tex. Crim. App. 1997).

No person shall be permitted to converse with a juror about the case on trial except 

in the presence and by the permission of the court.” TEX. CODE CRIM. PROC. ANN. art. 

36.22. “When a juror converses with an unauthorized person about the case, ‘injury to the 
13

accused is presumed’ and a new trial may be warranted.” Quinn, 958 S.W.2d at 401; 

Barnett v. State, 420 S.W.3d 188, 193 (Tex. App.—Amarillo 2013, no pet.).

To establish that an article 36.22 violation has occurred, the defendant has the 

burden to show that the communication involved matters concerning the specific case at 

trial. See Chambliss v. State, 647 S.W.2d 257, 265–66 (Tex. Crim. App. 1983); see also

Childs-Payton v. State, No. 07-20-00051-CR, 2021 WL 2006645 at *4–5 (Tex. App.—

Amarillo, no pet. h.) (mem. op., not designated for publication.). Even though harm is 

presumed, “the State may rebut th[e] presumption of harm.” Quinn, 958 S.W.2d at 401. 

To rebut, the State must show that “the case was not discussed or that nothing prejudicial 

to the accused was said,” if so, the accused has not been injured, and a new trial should 

be denied. Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App. 1992).

B. Analysis

Dunn argues that because Tim was in the courtroom when the jury was dismissed 

so that counsel could discuss a matter with the judge, and later went to lunch with Terrell, 

there is a basis to believe the subject of the trial was raised and improperly discussed.

The State responds that there is no record of improper communication because Tim 

testified that his only comment about the trial to Terrell was to say that the case was 

“interesting.” He further testified that he did not hear what was discussed outside the 

presence of the jury when he remained in the courtroom. Thus, the State was able to 

effectively rebut the presumption of harm.

Dunn relies upon Babalola v. State for the proposition that even though there was 

no evidence of influence, there was an appearance of improper conduct when the 
14

defendant’s well-known family members spoke to venire members prior to jury selection. 

See, e.g., Babalola v. State, No. 10-09-00234-CR, 2011 WL 1419752 (Tex. App.—Waco 

April 13, 2011, pet. ref’d) (mem. op., not designated for publication). However, we find 

Babalola inapplicable to this case because: (1) Tim did not have a vested interest in 

Dunn’s case like in Babalola, (2) the allegation disregards Tim’s testimony, and (3) 

Babalola’s family members were using their status to get friendly with the potential jurors, 

whereas here, a husband and wife were merely going to lunch and said that the case was 

“interesting.” See id. at *3.

Here, there is no evidence that the discussion influenced Terrell’s decision

regarding the outcome of the case. We overrule Dunn’s second issue. 

IV. CONCLUSION

We affirm the trial court’s judgment. 

LETICIA HINOJOSA

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

8th day of July, 2021.