NUMBER 13-16-00245-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CHARLES GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court 

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Hinojosa

Memorandum Opinion by Justice Longoria

Appellant Charles Garza appeals his conviction for possessing, with intent to 

deliver, between four and 200 grams of methamphetamine, a first-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (d) (West, Westlaw though 2017 1st 

C.S.). After finding that appellant is a habitual felony offender, the jury sentenced 
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appellant to forty years’ confinement in the Institutional Division of the Texas Department 

of Criminal Justice. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw though 2017 

1st C.S.). In six issues appellant argues: (1) the trial court erred by admitting discovery 

and a judgment from a civil asset forfeiture case; (2) the trial court erred by admitting the 

audio statement of a testifying witness; (3) the trial court erred by re-opening evidence 

after the jury began deliberating; (4) the State violated appellant’s due process rights by 

suppressing favorable, material evidence; (5) the trial court submitted an erroneous 

punishment jury charge, resulting in a sentence unsupported by necessary findings; and 

(6) the trial court proceedings were infected with cumulative error, warranting a new trial. 

We affirm.

I. BACKGROUND

In October 2013, Corpus Christi Police Department SWAT officers executed a noknock warrant at the home of Henry Velasquez. During the search, the officers 

encountered several individuals in different areas of the home. Appellant was located in 

one of the bedrooms with Rodolfo “Rudy” Ramos and Richard Ambriz. In the bedroom 

where appellant was located, the officers found a safe on the bed which contained 

approximately 27 grams of methamphetamine, a box of sandwich bags, a spoon, a light 

bulb, some change, and a digital scale. Officers were told by Ramos that the safe 

belonged to appellant. Appellant previously lived in the home and the room he was in 

was his former bedroom. Officers ultimately linked the safe and its contents to appellant. 

Velasquez and his girlfriend were located in another bedroom. In that room there was a 

drawer full of money and a shoe box containing 172.84 grams of cocaine. Velasquez 

pled guilty to the possession of the cocaine and received a fifteen-year sentence. His 
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testimony was that he was not selling the methamphetamine and the safe did not belong 

to him. 

Appellant was charged by indictment with first-degree possession of a controlled 

substance with intent to deliver. See TEX. HEALTH & SAFETY CODE Ann. § 481.112 (a), (d). 

The State also gave notice that it would seek to punish as him a habitual felony offender. 

See TEX. PENAL CODE ANN. § 12.42(d). Count 1 of the indictment alleged that on or about 

October 3, 2013, in Nueces County, Texas, appellant did then and there knowingly 

possess, with intent to deliver, a controlled substance, namely, cocaine, in an amount of 

four grams or more but less than 200 grams; and count 2 of the indictment alleged that 

appellant, on or about October 3, 2013, in Nueces County, Texas, did then and there 

knowingly possess, with intent to deliver, a controlled substance, namely,

methamphetamine, in an amount of four grams or more but less than 200 grams. 

The State moved to dismiss the first count of the indictment. Subsequently 

appellant was found guilty of the second count of the indictment. The jury then found that 

appellant was a habitual felony offender and assessed his punishment at forty years’

imprisonment. This appeal followed.

II. ADMISSIBILITY OF EVIDENCE

By his first two issues, appellant contends that the trial court erred by admitting 

inadmissible evidence, specifically: (1) discovery and a judgment from a civil asset 

forfeiture case; and (2) the audio statement of a testifying witness.

A. Standard of Review

An appellate court reviewing a trial court’s ruling on the admissibility of evidence 

must utilize an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d 
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540, 542 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 

1999). In other words, the appellate court must uphold the trial court’s ruling if it was 

within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542; Montgomery 

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the appellate court 

must review the trial court’s ruling in light of what was before the trial court at the time the 

ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998); Hardesty 

v. State, 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984).

B. Documents from Appellant’s Civil Asset Forfeiture Case

Appellant argues that the trial court erred by admitting the agreed judgment and 

additional documents from his civil asset forfeiture case on the grounds that the 

documents were irrelevant, prejudicial, settlement negotiations or plea discussions, and 

unauthenticated hearsay. 

1. Settlement Negotiations

Appellant argues that the exhibit containing the civil asset forfeiture documents, 

specifically the agreed judgment, was inadmissible as a settlement negotiation or plea 

discussion. See TEX. R. EVID. R. 408, 410. 

Rule 408 of the Texas Rules of Evidence states:

(a) Prohibited Uses. Evidence of the following is not admissible either to 

prove or disprove the validity or amount of a disputed claim:

(1) furnishing, promising, or offering–or accepting, promising to accept,

or offering to accept–a valuable consideration in compromising or 

attempting to compromise the claim; and

(2) conduct or statements made during compromise negotiations about 

the claim.

(b) Permissible Uses. The court may admit this evidence for another 

purpose, such as proving a party’s or witness’s bias, prejudice, or 
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interest, negating a contention of undue delay, or proving an effort to 

obstruct a criminal investigation or prosecution.

Id. Here, the State’s use of the evidence was to establish a link between the appellant 

and the recovered money. Specifically, they were corroborating the testifying officer’s 

statement that the money was found on appellant’s person. Their intention, therefore, 

was to use the forfeiture documents, which were created to facilitate the agreed judgment, 

to prove the validity of a disputed claim, which is specifically prohibited under rule 408. 

See TEX. R. EVID. R. 408; see also Casamento v. State, No. 05-91-00294-CR, 1992 WL 

224567, at *4 (Tex. App.—Dallas Sept. 11, 1992, no pet.) (mem. op. not designated for 

publication) (finding that the use of a civil forfeiture judgment was admissible in criminal 

case for purposes of impeachment where the defendant took the stand and testified that 

he had no association to the money involved in the forfeiture proceeding). Therefore, the 

trial court abused its discretion in admitting the civil forfeiture documents.1

2. Harm Analysis

Because we conclude that the trial court abused its discretion, we must now 

evaluate for harm. See TEX. R. APP. P. 44.2. Generally, if the trial court’s ruling merely 

offends the rules of evidence, the erroneous admission or exclusion of evidence is nonconstitutional error for purposes of a harm analysis. See Celis v. State, 354 S.W.3d 7, 

38 (Tex. App.—Corpus Christi 2011), aff’d 416 S.W.3d 419 (Tex. Crim. App. 2013). Nonconstitutional errors that do not affect substantial rights must be disregarded. TEX. R.

APP. P. 44.2(b). Inadmissible evidence can be rendered harmless if other evidence at 

trial is admitted without objection and it proves the same fact that the inadmissible 

 1 Having found error under rule 408, we need not address appellant’s arguments that the exhibit 

was inadmissible as irrelevant, more prejudicial than probative, or hearsay. 
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evidence sought to prove. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.

1986) (en banc). The State sought to use the inadmissible civil forfeiture documents to 

establish a link between appellant and the contraband, specifically to show that the cash 

that was seized belonged to appellant. Appellant argues that the jury may have taken the 

documents as an admission of guilt because the documents state that the money was 

his. The State brought this same information in through its testifying officer without 

objection:

Prosecutor: All right. Let’s talk about this particular case. During 

this search that you were conducting after the search 

warrant was issued, did you happen to be present 

when the defendant Charles Garza’s person was 

searched?

Officer: Yes.

Prosecutor: Okay. And what was found on this man’s person?

Officer: A little over $1600 in U.S. currency.

Additionally, cross-examination of the officer by appellant’s counsel elicited that there was 

a civil forfeiture proceeding. Accordingly, the erroneous admission of the document was

harmless and did not constitute reversible error. See id. Appellant’s first issue is 

overruled.

C. Audio Statement

By his second issue, appellant argues that the trial court erred in admitting the 

audio statement of co-defendant Ramos. 

1. Waiver

The State argues that appellant waived his argument as to the admissibility of the 

audio statement of Ramos when appellant offered it into evidence at trial. In order to 
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preserve error for appellate review, the record must show that a complaint was made to 

the trial court by an objection that stated the grounds for the ruling that the complaining 

party sought from the trial court with sufficient specificity to make the trial court aware of 

the complaint, unless the specific grounds were apparent from the context. TEX. R. APP. 

P. 33.1(a); Aguilera v. State, 75 S.W.3d 60, 65 (Tex. App.—San Antonio 2002, pet. ref’d). 

To preserve error for review, a timely and specific objection must be made and followed 

by an adverse ruling. Aguilera, 75 S.W.3d at 65.; Turner v. State, 805 S.W.2d 423, 431 

(Tex. Crim. App. 1991). A party must object every time allegedly inadmissible testimony 

is offered in order to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. 

App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Scaggs v. 

State, 18 S.W.3d 277, 291 (Tex. App.—Austin 2000, pet. ref’d).

Here, appellant initially objected to the State using the recorded statement of 

Ramos; however, appellant was ultimately the party who entered the redacted recording 

into evidence. While the trial court had already ruled on the admissibility of the recording 

in a hearing outside the presence of the jury, by offering and moving the recording into 

evidence during his cross-examination of Ramos, appellant did not preserve error on the 

argument of admissibility of said evidence. See Hudson, 675 S.W.2d at 511 (stating that 

“it is well settled that an error in admission of evidence is cured where the same evidence 

comes in elsewhere without objection; defense counsel must object every time allegedly 

inadmissible evidence is offered”); see also Bryant v. State, 534 S.W.3d 471, 473 (Tex. 

App.—Corpus Christi 2017, pet. ref'd) (quoting Ohler v. United States, 529 U.S. 753, 760

(2000) “[A] defendant who preemptively introduces evidence of a prior conviction on direct 

examination may not on appeal claim that the admission of such evidence was error.”). 
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We conclude that appellant did not preserve error. See id. Appellant’s second issue is 

overruled.

III. REOPENING OF EVIDENCE

By his third issue, appellant argues that the trial court erred by reopening evidence 

after the jury began deliberating. 

A. Invited Error

Appellant contends that the reopening of evidence was a violation of article 36.02 

and as such should be held to be an abuse of discretion by the trial court. See TEX. CRIM.

PROC. CODE ANN. § 36.02 (West, Westlaw through 2017 1st C.S.) (“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.”). The State, however, 

argues that appellant invited the error of which he now complains. See Woodall v. State, 

336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (stating that “[t]he law of invited error 

provides that a party cannot take advantage of an error that it invited or caused, even if 

such error is fundamental.”). 

During the punishment phase of appellant’s trial, the State elicited testimony from 

an officer about a prior offense committed by appellant. After the close of evidence, the 

State learned that a co-defendant in appellant’s prior offense claimed responsibility for 

the offense. The State brought this information to the attention of appellant’s counsel and 

the trial court. Appellant’s counsel requested that the jury be informed of the new 

information. The jury was brought in and counsel for the State explained the new 

information. Appellant sought to have the information given to the jury and cannot now 

complain that it was error to do so. See id. Appellant’s third issue is overruled.
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IV. SUPPRESSION OF FAVORABLE EVIDENCE

By his fourth issue, appellant contends that the state suppressed favorable 

evidence in violation of his due process rights. See Brady v. Maryland, 373 U.S. 83 

(1963).

A. Applicable Law

Under United States Supreme Court precedent beginning with Brady, the State is 

required to disclose evidence known to it that is favorable or material to a defendant’s 

guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527 

U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory 

evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or 

bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87, 83 S.Ct. 1194.

A defendant must show the following requirements to establish a Brady violation: 

(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the 

defendant; and (3) the suppressed evidence is material. Strickler, 527 U.S. at 281–82;

accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence 

for these purposes is any evidence that, if disclosed and used effectively, “may make the 

difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is 

“material” for Brady purposes “only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding would have been 

different.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal 

quotations omitted). A reasonable probability is one that is sufficient to undermine 

confidence in the outcome. Id.
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The materiality prong incorporates a requirement that the defendant is prejudiced 

by the State’s failure to disclose the evidence. Harm, 183 S.W.3d at 406. When 

information is disclosed mid-trial, the prejudice inquiry involves determining whether the 

disclosure came in time to make effective use of the information at trial. Little v. State,

991 S.W.2d 864, 866 (Tex. Crim. App. 1999). “If the defendant received the material in 

time to use it effectively at trial, his conviction should not be reversed just because it was 

not disclosed as early as it might have and should have been.” Id.

B. Arguments of the Parties

Appellant argues that the State presented misleading evidence by suppressing 

favorable, material evidence. Appellant argues that the State suppressed exculpatory 

evidence that another individual was responsible for a prior criminal act that the State 

presented to the jury during the punishment phase of his trial. As previously discussed, 

when the State learned of the information, it was presented to appellant’s counsel and 

the trial court. Appellant’s counsel requested the information be relayed to the jury, thus, 

reopening evidence during deliberations. Appellant’s request was granted and the jury 

was presented with the new information. Appellant now argues on appeal that the State 

“affirmatively presented prejudicial evidence while suppressing the full story.” 

The State responds that appellant failed to preserve the Brady complaint for review 

because he failed to make any objection, nor did he move for a mistrial. Further, the 

State notes that there was no mention of Brady in a motion for new trial. 

C. Preservation of Error

Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate 

Procedure, which provides that, to preserve error, a complaint must be “made to the trial 
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court by a timely request, objection, or motion that . . . state[s] the grounds for the ruling 

that the complaining party sought from the trial court with sufficient specificity to make the 

trial court aware of the complaint, unless the specific grounds were apparent from the 

context.” TEX. R. APP. P. 33.1(a)(1)(A). The record must also show that the trial court 

“ruled on the request, objection, or motion, either expressly or implicitly” or “refused to 

rule on the request, objection, or motion, and the complaining party objected to the 

refusal.” Id. R. 33.1(a)(2).

In this case, there was no objection made on Brady grounds, or at all, in regard to 

the evidence. Appellant’s counsel did not present any argument to the trial court and 

therefore, cannot now raise the issue on appeal. See id. We conclude appellant’s issue 

was not preserved for appeal. Id. We overrule appellant’s fourth issue.

V. JURY CHARGE ERROR

By his fifth issue, appellant contends the trial court submitted an erroneous 

punishment jury charge by not requiring the jury to make distinct findings about each 

alleged enhancement. 

A. Applicable Law

Courts analyze a jury-charge issue under a two-step process, first deciding 

whether there was error in the charge and, if error exists, analyzing the error for harm. 

Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The amount of harm 

necessary to warrant reversal depends on whether the error was preserved for appeal. 

Id. When, as here, the defendant did not object to the jury charge, error is reversible only 

if it was egregiously harmful. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 

2015).
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B. Enhancement Application

Appellant argues that the jury “did not have the opportunity to distinctly address 

the validity of the enhancements after [appellant] challenged the testimony linking him to 

the judgments.” Specifically, appellant argues that the trial court combined the finding of 

whether or not he was a habitual felony offender within the reiteration of the guilty verdict 

and sentence assessment. 

Generally, the factfinder’s decision of what particular sentence to assess is 

a “normative, discretionary function” that does not depend on the resolution 

of specific facts. However, when the State seeks to enhance a defendant’s 

sentence for the primary offense by alleging that a defendant has a prior 

conviction, and the defendant enters a plea of not true, the factfinder must 

decide whether the State has sustained its burden by entering a finding that 

the enhancement allegation is either true or not true. In essence, the 

assessment of punishment involves two types of deliberations when the 

State has alleged, and the defendant has entered a plea of not true to, a 

prior conviction used for enhancement purposes. First, the factfinder 

engages in a deductive, discrete fact-finding process to determine whether 

the State has proved that the enhancement allegation is true. And second,

considering all of the evidence admitted during the guilt and punishment 

phases, the factfinder engages in a normative process that is uninhibited by 

any required, specific fact determination to decide what particular 

punishment to assess within the range prescribed by law.

Jordan v. State, 256 S.W.3d 286, 291–92 (Tex. Crim. App. 2008) (citations omitted). 

Here, the punishment charge specifically instructed the jurors regarding the enhancement 

charges, the finding of a person to be habitual felony offender, and the sentencing ranges. 

The verdict form then allows for three possible sentencing options: (1) habitual felony 

offender punishment; (2) repeat felony offender punishment; or (3) first degree felony 

punishment. The jury was instructed that it was their duty “to determine whether the 

Defendant is a Habitual Felony Offender” and that their determination must be beyond a 

reasonable doubt. The jury was specifically instructed to make a determination regarding 

appellant’s habitual felony offender status and then to apply such determination to their 
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sentencing. See id. at 293. We conclude there was no error in the punishment charge 

and verdict form. See Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)

(stating that reviewing courts “must examine the charge as a whole instead of a series of 

isolated and unrelated statements.”). Appellant’s fifth issue is overruled.

VI. CUMULATIVE ERROR

In his final issue, appellant argues that the “proceedings are infected with 

cumulative error, warranting a new trial.” Listing each of his first five issues, appellant 

states that he has shown that there were multiple irregularities and errors in his trial, and 

therefore the integrity of the trial as a whole should be called into question. We need not 

decide this issue, however, because appellant’s conclusory statement that the cumulative 

effect of all his alleged errors warrants reversal is insufficient to maintain his burden to 

adequately brief the point of error. See TEX. R. APP. P. 38.1(i); Linney v. State, 401 

S.W.3d 764, 782–83 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (overruling as 

inadequately briefed appellant’s conclusory contention that cumulative harm affected his 

substantial rights). Appellant’s sixth issue is overruled.

VII. CONCLUSION

The judgment of the trial court is affirmed.

NORA L. LONGORIA

Justice

Do not publish.

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

Delivered and filed the 

1st day of November, 2018.