Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-19-00826-CR

Richard BRITTAIN,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 13, Bexar County, Texas

Trial Court No. 589944

Honorable Rosie S. Gonzalez, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Beth Watkins, Justice 

Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: June 30, 2021

AFFIRMED

A jury convicted Richard Brittain of assault causing bodily injury. On appeal, Brittain

asserts nine issues gathered into seven groups: (1) denial of motion for new trial alleging 

ineffective assistance of counsel; (2) judicial bias; (3) violation of the Confrontation Clause; 

(4) jury charge error; (5) legal insufficiency of the evidence; (6) failure to declare a mistrial after 

the State’s violation of the trial court’s order on Brittain’s motion in limine; and (7) admission of 

the responding officer’s opinion on whether Brittain acted in self-defense. We affirm.
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BACKGROUND

On August 29, 2018, at approximately 5 a.m., a complainant, Chelsea Criss, called 911 and 

requested police and EMS assistance for a reported domestic violence incident at Brittain’s house. 

Audibly crying, Criss reported that Brittain “beat” her, “choked” her, “threw [her] head against 

glass,” and that Brittain owned weapons (although none were used in the incident). She further 

offered Brittain’s address, where he was presently located, and explained that she was calling from 

a neighbor’s house because Brittain had taken her cellular phone.

San Antonio Police Department (“SAPD”) officer Brandon Liles was assigned to the case. 

Captured on his body camera and later played to the jury, Liles can be seen responding within a 

few minutes of the 911 call. Liles had learned from a key card that an unknown complainant, Criss,

had been assaulted by Brittain and that Brittain was in possession of a firearm in the house, though 

he had not threatened Criss with it.1 A subsequent key card (generated shortly after from a second 

911 caller) stated Criss had been assaulted by her boyfriend and Criss was bleeding from her ear 

and had lost consciousness.

As Liles approached Brittain’s residence, a bystander approached him to report that the 

bystander saw an unknown figure flee from Brittain’s house to another residence across the street. 

After this discussion, Liles knocked on Brittain’s front door, and Brittain exited the residence and 

closed the door behind him. For officer safety, Liles handcuffed Brittain during Liles’s

investigatory questioning. Brittain answered Liles’s questions. In pertinent part, Brittain reported 

(1) he and Criss, an ex-girlfriend, had resumed their relationship when she moved back in with 

him the night of August 28; (2) they were in a volatile relationship; (3) Criss was a stripper who 

1 A key card is a memorialized recording of details gathered by an operator during a 911 call. The 911 operator relays 

information electronically to a SAPD key card—information formatted to appear on laptops mounted inside SAPD 

police vehicles.
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had substance abuse issues; (4) a physical altercation had occurred; (5) Brittain acted in selfdefense by pushing Criss away after she first punched him in the nose; (6) Criss was “large” and 

“big-statured” with “shoulders like Rhonda Rousey”; and (7) Criss had fled Brittain’s home and 

he did not know where she was.

A second officer reached the scene minutes after Liles’s arrival. The second officer entered 

Brittain’s house to physically investigate the upstairs bedroom where the incident occurred. Inside 

the bedroom, the second officer found two sets of floor-length, mirrored sliding-closet doors. The 

mirror on one door was shattered down its length, and the door was off its hinges.

After speaking with the bystander and Brittain, Liles located Criss at a neighbor’s house.

Liles observed Criss was bleeding from inside her ear, one of her fingernails was broken and 

bleeding, and the back of her head near the neck was red. Her injuries were photographed and later 

shown to the jury. Liles later testified that Criss appeared upset and scared as he spoke with her. 

He also observed Brittain had greatly exaggerated Criss’s size—she was approximately 5’7” and 

130 pounds.

As she received EMS assistance, Criss reported that Brittain hit her at least twice on the 

side of the head and twice threw her into a mirror. After observing the disparity in the levels of 

injury and physical size, interviewing both Brittain and Criss, and in light of the broken mirror, 

Liles concluded that the complainant was the first to strike Brittain, but Brittain’s subsequent 

actions exceeded any potential self-defense claims. Liles arrested Brittain; Criss was transported 

to a nearby hospital for treatment.

Brittain was charged with assault causing bodily injury and interference with emergency 

request for assistance. The interference case was dismissed, and on September 23, 2019, the trial 

on the assault case began. Before jury selection, Brittain’s trial counsel discovered that Criss would 

not be appearing at trial to testify. Having first discovered this on the day of trial, Brittain’s trial 
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counsel notified the trial court that he intended to move to suppress evidence pursuant to Crawford

v. Washington, 541 U.S. 36 (2004). The trial court indicated that it would not entertain a Crawford

motion because it was its courtroom procedure to hear pre-trial motions, including Crawford

motions, exclusively before the start of a trial.

Notwithstanding the trial court’s stated policy of not hearing Crawford motions on the day 

of trial, during extended discussions, the trial court, in fact, heard what Brittain’s trial counsel 

described as “Crawford-like arguments” and ruled, pursuant to Brittain’s motion in limine, that 

the State must redact the reference to Criss’s phone being taken by Brittain from the 911 call, and

the 911 call could only be played until Criss confirmed her safety. Subject to these exceptions, the 

trial court determined that Criss’s 911 call was admissible. The trial court then proceeded to jury 

selection, but due to a mistake in the seating of jurors, the trial court declared a mistrial.

The following morning, the parties seated a new panel, conducted a second jury selection, 

and empaneled the jury. During the State’s case-in-chief, the State called Liles and a custodian of 

records to admit the 911 call. While playing the 911 call, the State violated the motion in limine

when it played the portion of the call where Crissstated that Brittain had taken her phone. Brittain’s 

trial counsel moved for a mistrial, which was denied. Brittain was the only witness to testify in his 

defense. The primary issue at trial was the reasonableness of Brittain’s belief that the force he used 

was immediately necessary to protect himself. The jury disbelieved his assertion of self-defense 

and convicted Brittain of assault. The trial court assessed punishment at one year confinement, 

probated for eighteen months. This appeal followed.

DENIAL OF MOTION FOR NEW TRIAL ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL

After conviction and sentencing, Brittain filed a motion for new trial predicated on alleged

ineffective assistance of trial counsel. In his first two issues, Brittain asserts that the trial court 

erred in (1) denying his motion for new trial and (2) doing so without holding a hearing.
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A defendant is entitled to effective assistance of counsel under the United States

Constitution and the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. To 

establish ineffective assistance of counsel, the appellant must show: (1) trial counsel’s assistance 

fell below an objective professional standard of reasonableness and (2) counsel’s actions 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 

S.W.3d 808, 812 (Tex. Crim. App. 1999). Concisely outlined by this court, a defendant must 

demonstrate deficient performance and prejudice. Vega v. State, 610 S.W.3d 79, 82 (Tex. App.—

San Antonio 2020, no pet.). An appellant “bears the burden of proving by a preponderance of the 

evidence that counsel was ineffective.” Id.

“To establish deficient performance, an appellant must show counsel’s assistance ‘fell 

below an objective standard of reasonableness.’” Id. (quoting Thompson, 9 S.W.3d at 812). “An 

appellant must overcome the ‘strong presumption that counsel’s conduct fell within the wide range 

of reasonable professional assistance.’” Id. “[T]hat is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action might be considered sound trial 

strategy.” Id. “To defeat the presumption of reasonable professional assistance, ‘any allegation of 

ineffectiveness must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness.’” Id. “If no reasonable trial strategy can justify counsel’s 

choices or conduct, performance necessarily falls below an objective standard of reasonableness.” 

Id. “However, few cases demonstrate such deficiency on direct appeal because the record is 

unlikely to include any explanation by trial counsel, and ‘we can [frequently] conceive of potential 

reasonable trial strategies that counsel could have been pursuing.’” Id. at 82–83.

“Once an appellant establishes deficient performance, the appellant must then establish 

prejudice.” Id. at 83. An appellant “must show a reasonable probability that, but for counsel’s 
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unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Id.

A. Motion for New Trial

In his first issue, Brittain asserts the trial court abused its discretion in denying his motion 

for new trial. A motion for new trial must be supported by an affidavit that specifically sets out the 

factual basis for the claim. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). When 

ineffective assistance of counsel is raised in a motion for new trial, “a defendant must allege 

sufficient facts from which a trial court could reasonably conclude both that counsel failed to act 

as a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable 

likelihood that the outcome of his trial would have been different.” Smith v. State, 286 S.W.3d 

333, 340–41 (Tex. Crim. App. 2009) (emphasis added). The decision on a motion for new trial 

rests within the sound discretion of the trial court. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. 

Crim. App. 1993).

Reversal is only justified when the trial court’s decision “was so clearly wrong as to lie 

outside that zone within which reasonable persons might disagree.” Smith, 286 S.W.3d at 339. 

Thus, appellate review is limited to a determination of whether the trial court’s decision was 

arbitrary or unreasonable. Gonzales, 855 S.W.2d at 695 n.4. Under this deferential standard of 

review, appellate courts view the evidence in the light most favorable to the trial court’s ruling. 

Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017).

Brittain’s motion for new trial asserts his trial counsel performed deficiently by failing to 

investigate favorable evidence admissible at trial. Specifically, Brittain claims that trial counsel 

should have interviewed Brittain’s adult children who were present in the house the night of 

August 28 and at the time of the incident. According to the motion and attached affidavits, 

Brittain’s daughter could have testified to Criss’s intoxication the night of August 28 and Criss’s
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reputation for being aggressive and violent when intoxicated, as well as to the details of a prior 

incident in which Criss attacked Brittain resulting in Criss taking a “huge chunk out of Brittain’s 

nose” and causing him a black eye. Her affidavit also reflects she did not see or hear anything after 

going to bed the night of August 28. Brittain’s son provided a substantially similar affidavit. A 

third affidavit, executed by a friend of Brittain’s children who was not present the night before or 

at the time of the incident, evidenced Criss’s reputation as violent and frequently intoxicated. 

According to Brittain, Criss’s reputation for violence was admissible to show that she was the first 

aggressor, and the witnesses’ descriptions of Criss’s abuse of alcohol and drugs was “germane to 

her character for violence.” Brittain also assertsthe children and third witness would have provided 

evidence of Brittain’s peaceable character and absence of criminal history.

It was undisputed at trial that Criss was the first aggressor and she abused drugs. The 

principal issue at trial was whether Brittain reasonably believed the force he used was immediately 

necessary to protect himself against Criss’s use of unlawful force. The record reflects Brittain’s 

trial counsel represented to the court that Brittain’s children were at home at the time of the incident 

but that they did not witness the incident. The affidavits confirm the veracity of trial counsel’s 

representation. Although the affidavits presented new evidence of an isolated prior incident of 

violence where Criss was the aggressor, along with information about Brittain’s peaceable 

character, Brittain is unable to show that there is a reasonable probability the result would have 

been different, therefore not satisfying the second prong under Strickland. For these reasons, even 

if the affidavits presented some new information that was not contained in the record, the trial 

court could reasonably conclude that trial counsel did not fail to act as a reasonably competent 
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attorney.

2 We cannot conclude that the trial court abused its discretion in denying Brittain’s motion 

for new trial. We overrule Brittain’s first issue.

B. A motion for new trial hearing was not required.

In his second issue, Brittain asserts that the trial court abused its discretion in declining to 

hold a hearing on Brittain’s motion for new trial. The right to a hearing on a motion for new trial 

is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). “[A] hearing is not

required when the matters raised in the motion for new trial are subject to being determined from 

the record.” Id. at 816 (emphasis in original). “Conversely, a trial judge abuses [its] discretion in 

failing to hold a hearing on a motion for new trial when that motion raises matters which are not 

determinable from the record.” Smith, 286 S.W.3d at 338.

As a prerequisite for a hearing, motions for new trial must be supported by an affidavit of 

either the accused or someone else specifically showing the truth of the grounds asserted. Jordan 

v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (citing Reyes, 849 S.W.2d at 816). A 

defendant requesting a new trial needs to “assert reasonable grounds for relief which are not 

determinable from the record in order to be entitled to a hearing.” Id. “[I]f the defendant’s motion 

and affidavit are sufficient, a hearing on the motion is mandatory.” Jordan, 883 S.W.2d at 665.

In the context of ineffective assistance claims, entitlement to a hearing requires a showing 

that there is a reasonable likelihood that the outcome of his trial would have been different. Smith, 

286 S.W.3d at 340–41. For the reasons discussed above, the affidavits attached to Brittain’s motion 

for new trial did not assert the existence of reasonable grounds for relief. Id. at 335 (“We now hold 

that for the movant to demonstrate reasonable grounds for relief when alleging ineffective 

2 The record discloses trial counsel sought to ensure Brittain’s children could remain in the gallery after the State 

invoked the Rule. See, e.g., Vega, 610 S.W.3d at 82 (citing Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 

2005) (“Frequently, we can conceive potential reasonable trial strategies that counsel could have been pursuing. When 

that is the case, we simply cannot conclude that counsel has performed deficiently.”)).
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assistance of counsel, he must establish both Strickland prongs, which includes showing a 

reasonable probability that but for counsel’s deficiency (if any) a different result would have 

occurred.”).

Liles testified upon his arrival at the scene he received information that Criss had fled 

Brittain’s home and was at a neighbor’s house. He observed Criss’s injuries as bleeding from 

inside of her ear, one of her fingernails being broken enough to bleed, and general redness around 

the back of her head, toward her neck. Liles further testified that the physical evidence, including 

the broken floor-length mirrored sliding-closet door at the scene supported Criss’s version of 

events that she was thrown into said mirrored-door more than once. As she received EMS 

assistance, Criss stated that she was hit at least twice on the side of the head and thrown into a 

mirror. Having heard all of the evidence that corroborated Liles’s conclusion, the court could have 

disbelieved Brittain’s testimony that he only pushed Criss once in self-defense or found the force 

he used was unreasonable under the circumstances.

Although the affidavits outlined new information, given (1) the evidence presented in the 

case and (2) Brittain’s own testimony, “[w]e are not persuaded that ‘reasonable grounds exist’ for 

believing that remanding this case to the trial court . . . could result in the granting of appellant’s 

motion for new trial or any other relief to appellant.” Whitaker v. State, 286 S.W.3d 355, 366 (Tex. 

Crim. App. 2009). Thus, Brittain failed to meet the threshold requirement to be entitled to a 

hearing. See Jordan, 883 S.W.2d at 665. We cannot conclude the trial court abused its discretion 

in declining to hold a hearing on Brittain’s motion for new trial. We overrule Brittain’s second 

issue.
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JUDICIAL BIAS

In his third issue, Brittain asserts the trial court’s conduct evidenced apparent bias that 

violated his right to a fair trial. Brittain’s third issue is divisible into two, discrete subparts: 

unconstitutional bias and comments on the weight of the evidence. We take each subpart in turn.

A. Brittain cannot show clear unconstitutional bias.

Both the United States Constitution and the Texas Constitution prohibit an accused from 

being deprived of life, liberty, or property, without the due process of law. U.S. CONST. amend. V, 

XIV; TEX. CONST. art. I, § 19. In the context of a trial, “[d]ue process requires a neutral and 

detached body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

Judicial bias may be presumptive or actual. Presumptive bias exists where a judge’s interest 

in the outcome of a case objectively “poses such a risk of actual bias or prejudgment that the 

practice must be forbidden if the guarantee of due process is to be adequately implemented.” 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883–84 (2009); see also TEX. CONST. art. V, 

§ 11 (prohibiting judges from sitting in cases where the judge is interested, related to a party, or 

where the judge acted as counsel in the case). Actual bias exists where a judge possesses “such a 

high degree of favoritism or antagonism as to make fair judgment impossible.” Litekey v. United 

States, 510 U.S. 540, 555 (1994); Abdygapparova v. State, 243 S.W.3d 191, 210 (Tex. App.—San 

Antonio 2007, pet. ref’d). Actual bias may arise where the judge improperly relies on an 

“extrajudicial source” or “evidence[s] the degree of favoritism or antagonism required . . . when 

no extrajudicial source is involved.” Litekey, 510 U.S. at 555.

“Absent a clear showing of bias, a trial court’s actions will be presumed to have been 

correct.” Id. at 551; Abdygapparova, 243 S.W.3d at 198. “Thus, judicial remarks during the course 

of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, 

ordinarily do not support a bias or partiality challenge.” Litekey, 510 U.S. at 555. This includes 
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“expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds 

of what imperfect men and women . . . sometimes display.” Id. at 555–56. Ordinary efforts at 

courtroom administration—even stern and short-tempered—remain immune. Id.

At issue in this case is Brittain’s claim of actual bias. In support of his claim, Brittain quotes

various statements made by the trial court. A review of the record demonstrates that the trial court’s

statements were almost entirely made outside the presence of the jury and were explainable as 

courtroom administration efforts. See id. Even the harshest statement made by the trial court—

what it perceived as the criminal defense bar’s purported dilatory trial strategy in asserting 

Crawford motions on the day of trial—was made before voir dire, outside the presence of the jury, 

and directly related to pretrial administration under its courtroom rules. See Jasper v. State, 61 

S.W.3d 413, 421 (Tex. Crim. App. 2001) (“[A] trial judge’s irritation at the defense attorney does 

not translate to an indication as to the judge’s views about the defendant’s guilt or innocence.”).

Although Brittain alleges numerous instances of the trial court acting sharply towards 

defense counsel, the record reflects that the trial court acted in the same manner towards the State.

For example, the trial court refused to allow the State to recall Liles in rebuttal because the State 

could not secure his attendance on the evening of trial, and the trial court refused to allow the case 

to continue to a second day. In doing so, the trial court stated that the State “really need[s] to 

prepare better.” These comments, made to both sides, reflect the trial court’s overriding concern 

was to efficiently administrate justice in a one-day jury trial. See Litekey, 510 U.S. at 555. We 

cannot say that Brittain has clearly shown actual bias. Absent a clear showing of actual bias, we 

must presume the trial court’s actions to have been correct. Litekey, 510 U.S. at 551; 

Abdygapparova, 243 S.W.3d at 198. To the extent Brittain’s third issue relies on a claim of 

unconstitutional bias, we overrule it.
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B. Brittain did not preserve complaint over an alleged improper comment on the weight 

of the evidence.

In addition to constitutional protections, Texas law prohibits a trial court from commenting 

on the weight of evidence. TEX. CODE CRIM. PROC. art. 38.05. Because jurors are prone to seize 

upon any conduct or language of the trial court which they may interpret as shedding light on its

view of the weight of the evidence or the merits of the issues involved, a trial court is required to 

be alert in its communications with the jury—not only to avoid impressing them with any view 

that it has, but to avoid in its manner and speech things that they may so interpret. Abdygapparova, 

243 S.W.3d at 209–10 (citing Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)).

“To constitute reversible error under Article 38.05, the comment must be such that it is 

reasonably calculated to benefit the State or prejudice the defendant’s rights.” Marks v. State, 617 

S.W.2d 250, 252 (Tex. Crim. App. 1981). In order to be reasonably calculated to benefit the State 

or prejudice the defendant’s rights, the comments must “[rise] to such a level as to bear on the 

presumption of innocence or vitiate the impartiality of the jury.” Jasper, 61 S.W.3d at 421. “It is 

not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of 

previously admitted testimony.” Id. “Further, a trial judge’s irritation at the defense attorney does 

not translate to an indication as to the judge’s views about the defendant’s guilt or innocence.” Id. 

“If raised as a freestanding statutory complaint, error under Article 38.05 is subject to nonconstitutional harm analysis.” Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017).

Brittain asserts as a freestanding statutory claim that the trial court’s instruction to the 

prosecution to replay Liles’s bodycam video after an initial playthrough during Liles’s questioning 

constituted an impermissible comment on the weight of the evidence. During the initial 

playthrough, the State repeatedly interrupted the video to question the witness. The record reflects 

that everyone—including Brittain and Brittain’s trial counsel—had trouble hearing the bodycam 
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audio. The video exhibit in the record confirms that speakers other than Liles (who wore the body 

camera) are exceedingly difficult to hear.

The trial court’s instruction to replay the bodycam video came in response to Brittain’s 

trial counsel’s complaint about the State’s questioning during the initial playthrough and 

suggestion that the trial court should “let the thing play.” Moreover, the trial court asked Brittain’s 

trial counsel whether he objected to the trial court replaying the video in its entirety without 

interruption, and he did not object. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986) 

(“[S]ince appellant made no objection at the time the statement [comment on the evidence] was 

made, nothing was presented for review.”). To the extent Brittain’s third issue relies on an 

allegation the trial court improperly commented on the evidence, nothing is presented for our 

review.

CONFRONTATION CLAUSE

In his fourth and fifth issues, Brittain asserts violations of his right to confrontation. 

Specifically, Brittain asserts the trial court erred in (1) denying Brittain a “complete” hearing on 

his Crawford motion and (2) admitting Criss’s 911 call without her appearing to testify.

A. The trial court heard Brittain’s Crawford motion.

Trial courts have discretion to conduct pretrial hearings on preliminary matters, including 

the admissibility of evidence. State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016); TEX.

CODE CRIM. PROC. art. 28.01. Such discretion permits trial courts, upon proper objection, to elect 

to determine the admissibility of the challenged evidence during the trial on the merits. Yanez v. 

State, 199 S.W.3d 293, 300–01 (Tex. App.—Corpus Christi 2006, pet. ref’d). An abuse of 

discretion occurs when the trial court acts arbitrarily or unreasonably without reference to any 

guiding rules or principles. Hill, 499 S.W.3d at 865.
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Brittain asserts the trial court abused its discretion by failing to give him a “complete” 

hearing on his Crawford motion. In his briefing, Brittain discusses at length the problematic nature 

of the trial court’s courtroom policy of only hearing Crawford motions before the day of trial. One 

such issue arose here, where Brittain did not learn until the first day of trial that Criss would not 

appear to testify.

Despite the trial court indicating there would not be a hearing, the trial court allowed 

Brittain’s trial counsel to argue each point he intended to make under Crawford. After presenting 

argument, Brittain’s trial counsel confirmed as much: “That was really the extent of what the 

pretrial hearing would have been. So thank you for the opportunity.” Under this record, we cannot 

say the trial court acted arbitrarily or without reference to guiding principles. The trial court did 

not abuse its discretion. We overrule Brittain’s fourth issue.

B. Brittain did not preserve right to confrontation issues for appeal. 

Before we reach the merits, we address the State’s assertion that Brittain did not properly 

preserve right to confrontation issues for appeal. The State asserts Brittain waived the right to

confrontation by failing to object during the trial each time the State offered potentially offending

evidence. We agree.

It is not disputed that Brittain objected to the 911 call through a pretrial motion in limine; 

however, a pretrial objection on right to confrontation issues, standing alone, is insufficient to 

preserve the issue for our review. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). 

To avoid waiver, Brittain was required to object to the admission of the evidence at trial when the 

State sought to introduce it. He did not do so. We hold that Brittain’s fifth issue is not preserved 

for our review on appeal. Even if we found the issue properly preserved, as next discussed, we 

would find no error because the 911 call only contained non-testimonial statements.
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C. The 911 call played to the jury only contained non-testimonial statements.

In Crawford, the Supreme Court holds that testimonial witness statements are admissible 

only if (1) the person who gave the statement is unavailable and (2) the accused had a prior 

opportunity for cross-examination. Crawford, 541 U.S. at 68. Although it did not explicitly define 

the term, the Court delineated the parameters of “testimonial,” applying it “at a minimum to prior 

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police 

interrogations.” Id. Crawford thus holds that a “core class of ‘testimonial’ statements” includes: 

(1) ex parte in-court testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial 

examinations, and (6) statements made under circumstances that would lead an objective witness 

reasonably to believe that the statement would be available for use at a later trial. Id. at 51–52. The 

issue in this case is whether the portions of Criss’s 911 call played for the jury fall within the class 

of statements defined as testimonial under the last category.

We review de novo a trial court’s constitutional rulings, including whether a statement is 

testimonial or non-testimonial in nature. Watson v. State, 421 S.W.3d 186, 195 (Tex. App.—San 

Antonio 2013, pet. ref’d) (citing Lilly v. Virginia, 527 U.S. 116, 137 (1999) and Wall v. State, 184 

S.W.3d 730, 742 (Tex. Crim. App. 2006)). Whether a statement is testimonial or non-testimonial 

is determined by the standard of an objectively reasonable declarant standing in the shoes of the 

actual declarant. Wall, 184 S.W.3d at 742. We consider “the formal nature of the interaction, the 

intent of the declarant, or some combination of the two factors.” Watson, 421 S.W.3d at 196.

We begin our analysis by reviewing the statements heard by the jury:

OPERATOR San Antonio 911, this is Ashley. Police, fire, or EMS?

CRISS Hi ma’am, can I get an EMS and can I get, um, police 

officers. Um, at --

OPERATOR You need police and EMS?
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CRISS Police and EMS, yes ma’am. I just got beat. The address is 

[redacted].

OPERATOR Okay. That’s the house?

CRISS That is the house. I’m at the neighbors across the street. 

There -- There’s blood everywhere. And it was my ex-boyfriend 

who just beat me right now.3

OPERATOR Is he still there?

CRISS He’s at his house. Yes ma’am. He took my phone. That’s 

why I had to come to a neighbor.

At the time Criss made these statements, the emergency was ongoing: Criss reported that 

she “just got beat.” A second 911 caller reported Criss lost consciousness. Shortly thereafter, Liles

observed Criss “bleeding from inside of her ear.”

An objectively reasonable declarant would believe they are answering the operator’s 

questions to receive assistance, not to be used as evidence in a hypothetical future trial. Wall, 184 

S.W.3d at 742. Initiated by Criss, the 911 call was an informal interaction in which “frantic answers 

were provided over the phone, in an environment that was not tranquil, or even (as far as any 

reasonable 911 operator could make out) safe.” See Davis v. Washington, 547 U.S. 813, 814

(2006). Criss’s answers were clearly intended to elicit police and EMS support for an ongoing 

emergency. See Michigan v. Bryant, 562 U.S. 344, 366 (2011); Watson, 421 S.W.3d at 196.

Other courts presented with similar 911 calls have also found the statements to be nontestimonial. See Rodgers v. State, 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.—

Beaumont Aug. 4, 2010, no pet.) (holding declarant’s 911 call involving hit-and-run ongoing 

emergency was non-testimonial); Reyes v. State, No. 04-09-00210-CR, 2010 WL 956140 (Tex.

App.—San Antonio Mar. 17, 2010, no pet.) (holding child’s 911 call requesting assistance because 

3 The exhibit provided to the jury for deliberation ended at this point in the transcript.
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father “beat my mom” was non-testimonial); Dixon v. State, 244 S.W.3d 472, 484–85 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d) (holding distressed 911 caller’s report that her 

boyfriend “just beat [her] up” after she fled to her car was non-testimonial); Santacruz v. State,

237 S.W.3d 822, 828–29 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding wife’s 911

call after husband hit her and fled scene was non-testimonial); Cook v. State, 199 S.W.3d 495, 

496–97 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding excited observer’s 911 call 

reporting potential crime in progress after defendant gestured obscenely and threw bottle at 

complainant’s truck was non-testimonial).

In short, the statements heard and considered by the jury were non-testimonial. See Bryant, 

562 U.S. at 366; Davis, 547 U.S. at 814; Wall, 184 S.W.3d at 742. Because the statements were 

non-testimonial, even if the issue were preserved, we would find no error with their admission.

JURY CHARGE

In his sixth issue, Brittain asserts the trial court’s jury charge erroneously included two 

instructions unsupported by the evidence presented at trial. Before closing arguments, the trial 

court provided a proposed charge to the attorneys for Brittain and the State that included, in 

relevant part, instructions on provocation and the duty to retreat. Both Brittain and the State 

accepted the trial court’s proposed charge without objection.

Based on the evidence presented at trial, the State admits that inclusion of these two

instructions was erroneous; however, Brittain failed to preserve error by timely objecting to the 

trial court’s proposed charge. As a result, to constitute reversible error, the unpreserved charge 

errors must have resulted in “egregious harm” affecting the very basis of the case, depriving the 

defendant of a valuable right, or vitally affecting a defensive theory. Olivas v. State, 202 S.W.3d 

137, 144 (Tex. Crim. App. 2006); see also TEX. CODE CRIM. PROC. art. 36.19. “Reversal is not 

required unless the error is so egregious that the defendant was denied a fair and impartial trial.” 
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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). To assess whether 

charge error is egregiously harmful, courts consider (1) the entire jury charge; (2) the state of the 

evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant 

information contained in the record as a whole. Gelinas v. State, 398 S.W.3d 703, 705 (Tex. Crim. 

App. 2013).

Reviewing the totality of the record, neither the provocation instruction nor the duty to 

retreat instruction rose to the level of egregious harm. The charge was relatively simple. As a 

matter of form, the offending instructions were not set apart or emphasized. It was uncontested 

that Criss made the first strike to Brittain’s face and it was undisputed that Brittain had a right to 

be in his own home. Neither the provocation instruction nor duty to retreat instruction were 

contextualized by any evidence presented nor discussed in closing argument. Closing arguments 

focused on the primary issue of contention in the trial court: the reasonableness of Brittain’s 

physical response. Having found no egregious error, we overrule Brittain’s sixth issue.

LEGAL SUFFICIENCY OF EVIDENCE

In his seventh issue, Brittain asserts the evidence was legally insufficient to support his 

conviction. In a sufficiency claim, our role is “restricted to guarding against the rare occurrence 

when a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 

2009). We assess the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable 

doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The essential elements of the 

offense are defined by the hypothetically correct jury charge for the case. Ramos v. State, 407 

S.W.3d 265, 269 (Tex. Crim. App. 2013). Conflicting inferences are resolved in favor of the 

verdict. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Direct and circumstantial 
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evidence are treated equally, and circumstantial evidence alone can be sufficient to establish guilt. 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

The primary issue at trial was the reasonableness of Brittain’s belief that the force he used 

was immediately necessary to protect himself against Criss’s use of unlawful force. A person is 

justified in using force against another when and to the degree the actor reasonably believes the 

force is immediately necessary to protect the actor against the other’s use or attempted use of 

unlawful force. TEX. PENAL CODE § 9.31. Brittain argues the evidence establishes only that Criss

punched him, and in response he either pushed or punched Criss. According to Brittain, the 

evidence is legally insufficient because the State only took issue with the degree of force he used, 

and the degree of force used—a push or return strike—was not unreasonable.

Brittain’s argument implicitly rests on the invalid assumption that jurors could only act 

rationally by concluding that Brittain’s trial testimony was true because Criss did not testify at 

trial. But the jury was entitled to disbelieve Brittain’s version at trial for any number of reasons. 

Brittain’s testimony varied in material respects from Brittain’s description of events to Liles on 

the morning of the incident. The jury could have rationally believed, based on a review of the 

photograph of Criss’s bleeding ear, that Brittain did more than “shove” Criss—especially in light 

of the recording of Criss in the ambulance in which she stated Brittain had struck her twice on the 

side of the head. The jury could have rationally believed, based on a review of photographs of a

broken door and shattered mirror that Brittain did more than “shove” Criss. There is sufficient

evidence from which a rational jury could have concluded Brittain’s force far exceeded what he 

claimed; consequently, a rational jury could have concluded Brittain did not reasonably believe 

the force he used was immediately necessary to protect himself against Criss’s use of unlawful 

force. We overrule Brittain’s seventh issue.
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VIOLATION OF MOTION IN LIMINE

In his eighth issue, Brittain asserts the trial court erred in denying his request for a mistrial 

after the State violated the motion in limine. The trial court granted the motion in limine prohibiting

the State from playing a portion of the 911 call in which Criss stated, “He took my phone. That’s 

why I had to come to a neighbor.” The trial court’s ruling was predicated on a previous dismissal 

of the separate offense of interference with emergency request for assistance. According to 

Brittain, the violative statement referenced an extraneous offense and, therefore, the trial court 

abused its discretion in denying his motion for mistrial.

A. Brittain preserved error on the State’s violation of the trial court’s order.

We first address the State’s contention that Brittain failed to preserve error by not asking 

for an instruction to disregard before moving for mistrial. “Generally a motion in limine will not 

preserve error to the admission of inadmissible evidence.” Brazzell v. State, 481 S.W.2d 130, 131 

(Tex. Crim. App. 1972). When evidence is placed before the jury in violation of a motion in limine, 

an instruction to disregard is generally sufficient to cure error. Barnes v. Univ. Fed. Credit Union, 

No. 03-10-00147-CV, 2013 WL 1748788, at *12 (Tex. App.—Austin 2013, no pet.) (citing Barney 

v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985)) (mem. op.). While preferred, the traditional 

procedure of objecting, requesting an instruction to disregard, and then moving for a mistrial is not 

essential to preserve error for appellate review. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. 

App. 2007). A request for an instruction to disregard is only necessary “when such an instruction 

could have had the effect desired by the requesting party.” Id.

Had Brittain’s trial counsel requested the trial court to instruct the jury to disregard the 

segment of the 911 audio in which Criss stated her phone was taken by Brittain, it would not “have 

had the effect desired by the requesting party”—rather, from trial counsel’s perspective, it could

have highlighted the existence of the dismissed extraneous offense. Moreover, Brittain satisfied 
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the essential requirement for preservation by making a timely, specific request for mistrial that was 

refused by the trial court. See id. Immediately after the bench conference discussing the State’s 

violation, Brittain’s counsel re-approached and concisely stated, “In light of the State violating the 

Court’s motion in limine, we move for a mistrial.” Accompanied with the trial court’s denial, this 

was sufficient to preserve error. See id.

B. The trial court did not abuse its discretion in denying mistrial.

The denial of a motion for mistrial is reviewed under the abuse of discretion standard.

Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004) (en banc); Dossett v. State, 216 

S.W.3d 7, 31 (Tex. App.—San Antonio 2006, pet. ref’d). “A mistrial is an appropriate remedy in 

‘extreme circumstances’ for a narrow class of highly prejudicial errors.” Ocon v. State, 284 S.W.3d 

880, 884 (Tex. Crim. App. 2009). Generally, a mistrial is only required when the improper 

evidence or testimony is “clearly calculated to inflame the minds of the jury and is of such a 

character as to suggest the impossibility of withdrawing the impression produced on the minds of 

the jury.” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). Whether a given error 

necessitates a mistrial must be made by examining the particular facts of the case. Ladd v. State, 3 

S.W.3d 547, 567 (Tex. Crim. App. 1999).

Brittain nowhere identifies the exact offending statement that he complains over in his brief

and instead obliquely concludes that a portion of the 911 call refers to an extraneous offense.

Because we must examine the particular facts of the case to determine whether a given error 

necessitates a mistrial, we ascertain from the record that Brittain complains over the following 

statement from the 911 audio recording: “He took my phone. That’s why I had to come to a 

neighbor.” We examine three factors to determine whether the trial court abused its discretion in 

denying a motion for mistrial: (1) the severity of the misconduct (prejudicial effect); (2) curative 
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measures; and (3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 75; 

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

First Factor: Severity of the Misconduct. The State does not dispute that it mistakenly

violated the motion in limine. But the State’s error in playing the offending statement is not highly 

prejudicial. See Ocon, 284 S.W.3d at 884. As we have determined, the statement is non-testimonial 

in nature. Further, the statement, “He took my phone,” does not obviously reference an extraneous 

offense. This is especially true given Criss’s next sentence: “That’s why I had to come to a 

neighbor.” Absent an instruction to disregard that would highlight to the jury the existence of some

issue with these two sentences, the statements facially appear to explain why Criss placed the call 

to 911 from a neighbor’s house. Had the trial court denied Brittain’s motion in limine and allowed 

this portion of the 911 call to be admitted into evidence, we do not believe that the trial court would 

have abused its discretion.

Moreover, the offending statements constitute relevant surrounding facts and 

circumstances of the charged offense. See Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 

1986). That is, they were independently admissible as same-transaction contextual evidence to 

impart to the jury information essential to understanding the context and circumstances of events 

which, although legally separate offenses, are blended or interwoven. See Camacho v. State, 864 

S.W.2d 524, 532 (Tex. Crim. App. 1993). Same-transaction contextual evidence “is admissible, 

not for the purpose of showing character conformity, but to illuminate the nature of the crime 

alleged.” Id. at 535. To illustrate, there are many reasons why a domestic violence complainant

may flee to a neighbors’ house seeking assistance. One is to escape continuing violence. That was 

not the case here. Rather, Criss’s explanation for why she placed a call from a neighbor’s house 

potentially assisted Brittain in the mind of a jury by explaining that she did so because she needed 

a phone and not to avoid continued assault.
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Even if we assume the statement was prejudicial, the level of prejudice does not rise to the 

level requiring a mistrial. Texas courts have approved far more prejudicial same-transactional 

contextual evidence without error. See, e.g., Nelson v. State, 864 S.W.2d 496, 499 (Tex. Crim. 

App. 1993) (“It would have been impracticable to avoid describing the charged offense without 

also describing the attempted capital murder of the second victim.”); Smith v. State, 424 S.W.3d 

588, 594 (Tex. App.—Texarkana 2013, no pet.) (holding that the extraneous rape of the murder 

victim’s wife by the codefendant was admissible as contextual evidence against the defendant 

because it was “interwoven and related” to the murder of the husband). The first factor supports

trial court’s denial.

Second Factor: The Measures Adopted to Cure the Error. The second factor assumes 

the existence of error. While we find no error, we assume it for purposes of this analysis. Even 

before Brittain moved for mistrial, the trial court effectively sanctioned the State by excluding all 

portions of the 911 call that were not yet played. Under the trial court’s order, the State was not 

able to play approximately two minutes of the 911 call that included admissible statements. 

Instead, the State was only allowed to play (and the jury only received) forty-one seconds of the 

911 call. In other words, the trial court excluded nearly three-quarters of the 911 call originally 

proffered by the State. Additionally, redaction of the complained-over statement prior to 

submission ensured the jury did not have access during deliberations. Even assuming the existence 

of error, the trial court’s remedial actions were sufficient to cure it. The second factor supports the 

trial court’s denial.

Third Factor: The Certainty of Conviction Absent the Erroneous Admission of 

Evidence. Like the second factor, the third factor assumes the existence of error; thus, we again 

assume it for purposes of this analysis. Brittain’s conviction remains certain had the jury not heard, 

“He took my phone. That’s why I had to come to a neighbor.” Not only because it is not 
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inflammatory or highly prejudicial but because it was never again mentioned to the jury during the 

trial. The State never referenced the extraneous offense in argument. It is simply not credible to 

say that the jury would have found Brittain not guilty if those two sentences were not uttered one 

time during trial. Our determination that the evidence was legally sufficient for Brittain’s 

conviction also buttresses our conclusion that the third factor supports the trial court’s denial.

The State’s violation of the motion in limine is unfortunate. But the statement, “He took 

my phone. That’s why I had to come to a neighbor,” was not improper evidence calculated to 

inflame the passions of the jury. See Hinojosa, 4 S.W.3d at 253. Weighing all three factors, we 

cannot say the trial court abused its discretion in denying Brittain’s motion for mistrial. See 

Hawkins, 135 S.W.3d at 75; Mosley, 983 S.W.2d at 259. We overrule Brittain’s eighth issue.

IMPROPER OFFICER TESTIMONY

In his ninth issue, Brittain asserts the trial court erred in admitting Liles’s opinion regarding

whether Brittain acted in self-defense because Liles’s testimony was that of a nonexpert witness.

This issue was not preserved for our review. As a prerequisite for appellate review, the record must 

show that trial counsel objected 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). 

Brittain complains over the following exchange:

PROSECUTOR So in your opinion, since you talked about your 

training on self-defense, after seeing the injury -- alleged injury on 

the Defendant, and after seeing personally the injury on the victim

[Criss] bleeding from her ear, and after hearing about being 

slammed against the door and after seeing the slammed door, what 

is your opinion of self-defense? 

DEFENSE Objection, leading. 

PROSECUTOR I asked for his opinion on self-defense, Your 

Honor. 

THE COURT Overruled. 
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PROSECUTOR What is your opinion on self-defense, if you can 

tell the jury? 

LILES As it pertains to this case, sir?

PROSECUTOR Yes. 

LILES I don’t believe what occurred was self-defense.

The trial court overruled Brittain’s objection to the first question as “leading,” and Brittain 

did not otherwise object. The State expressly sought Liles’s opinion on self-defense, but Brittain 

did not object with sufficient specificity to make the trial court aware that Brittain complained over 

Liles offering his opinion. See id.; Villarreal v. State, 821 S.W.2d 682, 687 (Tex. App.—San 

Antonio 1991, no pet.) (“The complaint presented on appeal varies from the objection made during 

trial and presents nothing for review.”) (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. 

App. 1986); Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 

872 (1988)). Brittain also extensively cross-examined Liles on self-defense. Cf. Prytash v. State, 

3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (“[T]he law of invited error estops a party from making 

an appellate error of an action it induced.”). Brittain’s ninth issue is not preserved for our review 

on appeal.

CONCLUSION

Because each of Brittain’s nine issues is either overruled or not preserved for our review, 

the judgment of the trial court is AFFIRMED.

Lori I. Valenzuela, Justice

Do Not Publish