1 COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EDUARD SORIA

,

Appellant,

v.

THE STATE OF TEXAS

,

Appellee. §

§

§

§

§ No. 08

- 20

- 00 0 7 4

- CR

Appeal from the

205 th District Court

of El Paso County, Texas

(TC# 20190D00105 )

O P I N I O N

A jury found Appellant Eduard Solis guilty of one count each of a ggravated a ssault with a

d eadly w eapon, taking a w eapon from a peace officer, and a ssault on a p eace o fficer

. Appellant

contends that (1) the evidence was legally insufficient to support any of the three convictions , (2)

that the trial court erred by refusing to provide the jury with an instruction on voluntary conduct

,

and (3) that the trial court erred by refusing to admit s tatements the victim of the a ggravated assault

allegedly made to a n investigator from the El Paso County P ublic D efender ’ s Of fice before trial.

W e affirm. 1

1 The trial court certified Appellant ’ s right to appeal, but the certification does not bear Appellant ’ s signature

indicating that he was informed of his rights to appeal and to file a pro se petition for discretionary review with the

Texas Court of Criminal Appeals. See T EX .R.A PP .P. 25.2(d). The certification is defective, and has not been

corrected by Appellant ’ s attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant ’ s attorney,

pursuant to T EX .R.A PP .P

. 48.4, to send Appellant a copy of this opinion and this Court ’ s judgment, to notify Appellant

of his right to file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines. See2 

### I. B ACKGROUND

A. The Aggravated Assault

T he victim of the aggravated assault

, Jesus Nassi, testified at trial that he was working as

a bar

- back a t the Cazadores Cantina sports bar on the evening of the assault

. According to Nassi,

he observed Appellant enter the bar sometime before the assault

. Appellant was already

inebriated, and the bartender refused to serve him. Appellant was soon asked to leave the bar

after he demanded that other bar patrons buy him a drink, and then he went behind the bar and

rummaged through a trash can. Francisco Lozano, a bar employee, escort ed Appellant out of the

bar

. A lthough Lozano at first identified Appellant at trial as being the same person that he

escorted from the b ar, he later testified on cross

- examination that it was “ kind of hard ” to identify

him

, as the b ar was dark then. Nassi, however, recalled several specific details about Appellant ’ s

appearance : h e was not wearing a shirt, but had on a torn black hoodie and black sweat pants, and

he had t attoo s

.

Nassi recalled that a short time later, he was standing outside the entrance door of the bar

with another employee

. H e then observed “ what looked like ” Appellant approach them from

behind out of the corner of his eye. Nassi testified that Appellant was holding a metal object in

his hand, was brea th ing hard

, and was “ moving fast ” in his direction. Nassi pushed the other

employee to the ground, while unsuccessfully trying to avoid contact with Appellant

. Although

Nassi did not at first realize what had occurred, he felt a “ heavy punch ” in his back, and ultimately

realized he had been stabbed in the back with a knife. Nassi observed Appellant run away

immediately following the stabbing, and the police were then summoned

.

T EX .R.A PP .P

. 48.4, 68. Appellant ’ s attorney is further ORDERED, to comply with all of the requirements of

T EX .R.A PP .P

. 48.4.3

Lozano testified at trial that although he did not personally witness the stabbing, the other

employee who had been with Nassi pointed in the direction in which the assailant had run, and he

immediately gave chase

. In addition, Lozano recalled that two or three other customers from the

bar joined in the chase, and he recalled telling them th at he believed they were after Nassi ’ s

a ssailant

. A t trial, h owever, h e testified that he could not be certain that they were in fact chasing

the right person

. Lozano recalled that he returned to the bar after running a pproximately two

blocks

, while the other individuals continued the pursuit

.

B. The Police Encounter

Various witnesses made 911 calls to the police reporting the stabbing, providing varying

descriptions of Nassi ’ s assailant, one of which described the subject as wearing a black shirt and

black pants. T wo El Paso Police officers, Dionicio Alvarez and Alejandra Serna, were dispatched

to the scene

. W hile canvassing the area, they observed three civilian males chasing another

shirtless male individual. After stopping to investigate, they heard the three civilians yelling that

the individual being chased had committed the stabbing

.

The officers observed that the individual, whom they identified at trial as Appellant, was

in a fighting stance when they arrived on the scene

, was sweating profusely although he was

shirtless in the cold weather and was cursing and yelling that he was not the perpetrator

. Officer

Serna believed that Appellant was holding something in his hand

, which she feared might have

been t he knife involved in the stabbing or some other weapon. Out of concern for their safety,

Officer Serna first drew her service weapon

, and Officer Alvarez took out his standard issue taser

.

Both officers, who were in full police uniforms and identified themselves as police officers,

command ed Appellant to get to the ground and to put his hands up. When Appellant ignored their

commands, Officer Alvarez kicked him to the ground. The officers thereafter attempted to4

handcuff Appellant and place him in custody to investigate his role in the stabbing, but they could

not subdue him ; instead, A ppellant continually fought and struggled with them, push ing and hitting

them, “ kicking a lot, ” and “ throwing [ them ] off

. ” Another witness who lived in the neighborhood

testified that the officers were “ struggling ” with Appellant and appeared to have had a difficult

time subduing him.

Officer Serna testified that she first used her taser on Appellant to subdue him

, but it

appeared to have no effect

. I n fact

, Appellant pulled out the taser prongs from his torso and

continued to struggle with the officers

. 2 T hereafter, Officer Alvarez used his taser to “ drive stun ”

Appellant

, by placing the taser against Appellant ’ s skin, but again this appeared to have no effect

,

and Appellant continued to struggle with the officers. D uring the struggle, Appellant took the

taser from the officer ’ s hand. Officer Alvarez testified that while the two were struggling over

the taser, Appellant kicked him in the leg, causing him pain. Officer Alvarez subsequently kicked

the taser out of Appellant ’ s hand, and after retrieving it, Officer Alvarez once again tased

Appellant

, but once again, this a ppeared to have no effect on him

. Officers Alvarez and Serna, as

well as two officers who later arrived on the scene, testified that they could smell alcohol on

Appellant ’ s breath

. T hey speculated that Appellant might have been under the influence of an

unknown drug, as he appeared to be “ hyped up ” and was exhibiting “ super strength ” in his ability

to withstand the tasing

.

As they failed to get control of A ppellant

, the officers sought help from the three civilians

who were still at the scene

, and they held Appellant down while the officers placed him in

handcuffs. Despite being placed in handcuffs, however, A ppellant continued to struggle with the

2 The officers testified that in their experience it is very unusual for a person to remove taser prongs from their body,

as it is painful to do so and that typically EMS personnel are summoned to do so.5

officers

. A s many as 14 other officers ultimately arrived on the scene to assist in Appellant ’ s

arrest

, and two of th ose officers testified that Ap pellant was still struggling to get up when the y

arrived on the scene

. 3 O ne officer testified that Appellant was yelling and screaming that he was

a member of a gang affiliated with the Barrio Azteca gang

, and that they had “ better let [him] go. ”

After Officer Alvarez informed the newly arrived officers that Appellant had kicked him,

photographs were taken of his pants to document that they had dirt and dust on them where he had

been kicked. Although both Officers Alvarez and Serna looked as if they had been in a struggle,

and Officer Alvarez appeared visibly upset, neither one suffered any other physical injuries.

Appellant was thereafter taken to the hospital for medical clearance. At the hospital,

Appellant had to be sedated and handcuffed to his bed, as was continuing to try to get up a s well

as attempting to spit on the officers in his hospital room

. Photographs taken of him at the hospital

showed that he had blood on his right hand

, though the blood was not swabbed. After Appellant

was taken to the hospital

, Officers Alvarez and Serna combed the area, and found a black shirt

nearby, with a large construction nail underneath it

, which Officer Serna surmised Appellant may

have been holding when she and Officer Alvarez first arrived on the scene.

C. Court Proceedings

The State filed a three

- count indictment against Appellant, alleging t hat he committed :

a ggravated assault with a deadly weapon on Nassi ; (2) tak ing a weapon from a peace officer with

the intent to harm him ; and (3) assault on a peace officer

. At the close of the State ’ s case,

Appellant moved for a directed verdict on all three charges

, contending, as he does on appeal, that

3 The newly arrived officers recorded this portion of the struggle on one of their vehicle ’ s dash

- cam which was

i ntroduced into evidence at trial

. The video shows that Appellant was continuing to struggle when the other officers

arrived on the scene

. T he dash

- cam in the vehicle being driven by Officers Alvarez and Serna was not on at the time

of the ir initial encounter with Appellant, and no video recording of the initial encounter was introduced into evidence

at trial.6

there was insufficient evidence to support a verdict on any of the charges

. The trial court denied

all three motions.

In addition, as explained below, Appellant requested a “ voluntary conduct ” instruction for

the assault on Officer Alvarez, claiming that the evidence supported a finding that he had lost

muscle control due to being repeatedly tased

. Appellant reasons this fact would have allowed the

jury to find him not guilty of kicking Officer Alvarez in a voluntary manner as was necessary to

support a conviction. The trial court denied the request, concluding that it would constitute an

improper comment on the evidence. However, the trial court allowed Appellant ’ s attorney to

argue the issue to the jury, and defense counsel did in fact repeatedly argue that the jury should

find him not guilty on this basis.

The jury found Appellant guilty of all three counts, and the trial court sentenced Appellant

to 30 years in prison for each count

, with all three sentences to run concurrently. 4 This appeal

followed.



### I I

. I SSUES O N 

### A PPEAL

Appellant raises th ree issues on appeal: (1) whether the trial court erred by refusing to

admit two prior statements that the stabbing victim made to an investigator from the Public

Defender ’ s O ffice, which Appellant believes were supportive of his defense of mistaken identity ;

(2) whether the trial court erred by refusing to give his requested instruction to the jury on

voluntary conduct related to the assault on Officer Alvarez ; and (3) whether there was sufficient

evidence to support his conviction on all three counts in the indictment. We start in reverse order,

4 The State admitting three earlier convictions in the punishment phase of the trial: a 2018 Theft of Property

conviction

, a 2010 Escape While Arrested conviction, a nd a 2000 A ggravated A ssault conviction.7

with Appellant ’ s sufficiency of the evidence claim s, and then consider his remaining two

arguments.



### III. S UFFICIENCY O F T HE 

### E VIDENCE

A. Standard of Review

The constitutional guarantee of due process requires that every conviction be supported by

legally sufficient evidence. Jackson v. Virginia

, 443 U.S. 307

, 318

- 19 (1979); Brooks v. State

,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). In a legal sufficiency challenge, we focus solely on

whether the evidence, when viewed in the light most favorable to the verdict, would permit any

rational jury to find the essential elements of the offense beyond a reasonable doubt. Jackson

,

443 U.S. at 318

- 19; Brooks

, 323 S.W.3d at 912 ( recognizing legal sufficiency under Jackson v.

Virginia as the only standard for review of the evidence).

Applying that standard, we recognize that our system designates the jury as the sole arbiter

of the credibility and the weight attached to the testimony of each witness. Metcalf v. State

, 597

S.W.3d 847, 855 (Tex.Crim.App. 2020) ; Dobbs v. State

, 434 S.W.3d 166, 170 (Tex.Crim.App.

2014)

. Only the jury acts “ to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. ” Clayton v. State

, 235 S.W.3d 772,

778 (Tex.Crim.App. 2007)

, quoting Jackson

, 443 U.S. at 319

. In doing so, the jury remains at

liberty to believe “ all, some, or none of a witness ’ s testimony. ” Metcalf

, 597 S.W.3d at 855

.

When the record supports conflicting inferences, we presume that the jury resolved the conflicts

in favor of the verdict, and we defer to that determination. Dobbs

, 434 S.W.3d at 170 ; see also

Jackson

, 443 U.S. at 319

.

In conducting our review, we also keep in mind that circumstantial evidence is just as

probative as direct evidence in establishing guilt, and that circumstantial evidence alone may be8

sufficient to sustain a conviction. Dobbs

, 434 S.W.3d at 170. Each fact need not point directly

and independently to the guilt of the defendant

, so long as the cumulative force of all the

incriminating circumstances can support the conviction. Dobbs

, 434 S.W.3d at 170; Hooper v.

State

, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

We also remain mindful that “ [t]here is no higher burden of proof in any trial, criminal or

civil, and there is no higher standard of appellate review than the standard mandated by Jackson. ”

Brooks

, 323 S.W.3d at 917 (Cochran, J., concurring). Yet “ [w]e are not to sit as a thirteenth juror

reweighing the evidence or deciding whether we believe the evidence established the element in

contention beyond a reasonable doubt[.] ” Blankenship v. State

, 780 S.W.2d 198, 207

(Tex.Crim.App. 1988). Instead, our only task under this standard is to determine whether, based

on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Isassi v. State

, 330 S.W.3d 633, 638

(Tex.Crim.App. 2010).

The sufficiency of the evidence is measured by comparing the evidence produced at trial

to “ the essential elements of the offense as defined by the hypothetically correct jury charge. ”

Metcalf v. State

, 597 S.W.3d at 856

, quoting Malik v. State

, 953 S.W.2d 234, 240 (Tex.Crim.App.

1997) (internal quotation marks omitted). A hypothetically correct jury charge “ accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the State ’ s burden of

proof or unnecessarily restrict the State ’ s theories of liability, and adequately describes the

particular offense for which the defendant was tried. ” Id

., quoting Malik

, 953 S.W.2d at 240

.

B. Aggravated Assault with a Deadly Weapon

The elements of the offense of aggravated assault with a deadly weapon, as alleged in

Count One in the indictment, are that (1) Appellant (2) intentionally, knowingly, or recklessly (3)9

caused bodily injury to Nassi (4) with the use of a deadly weapon

— a knife

. See T EX .P EN AL C ODE

A NN

. § 22.01(a)(1) (a person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another); T EX .P EN AL C ODE A NN

. § 22.02(a) (a person commits

the offense of aggravated assault if the person commits assault as defined in section 22.01 and the

person causes serious bodily injury to another or uses or exhibits a deadly weapon during the

commission of the assault)

. Appellant challenges only the first element of the offense, contending

that there was legally insufficient evidence identifying him as Nassi ’ s assailant. I dentity is an

essential element of any crime, and the State must establish the identity of the defendant as the

perpetrator of an offense beyond a reasonable doubt. See Miller v. State

, 667 S.W.2d 773, 775

(Tex.Crim.App. 1984); In re D.R.T.

, 339 S.W.3d 208, 210 (Tex.App.

-- El Paso 2011, no pet.).

That said, we disagree with Appellant ’ s argument that the record contains insufficient evidence to

support the jury ’ s finding that he was Nassi ’ s assailant.

Appellant ’ s sufficiency argument is mainly based on what he believes are discrepancies in

the testimony on his identity as the assailant

. He focuses on the several 911 callers who provided

varying descriptions of the assailant

. Lozano, the b ar ’ s security employee, did not witness the

stabbing and was less than certain when he identified Appellant as the person he had seen in the

b ar earlier that evening

. And although Nassi positively identified Appellant at trial as his

assailant, he had expressed some uncertainty regarding his ability to identify his assailant to the

Public Defender ’ s investigator, an issue we discuss below. 5 D iscrepancies or conflicts in the

5 Appellant also points out, as the State admitted at trial, that the p olice conducted a less than thorough investigation

of the stabbing

, noting that they did not take written statements from any of the b ar ’ s patrons, including the three

individuals who chased him, and further collected no DNA or fingerprints from the knife that could have established

the identity of Nassi ’ s assailant. However, the fact that the police could have, but did not, collect more evidence to

support an accused ’ s guilt does not, standing alone, render the evidence insufficient. See Harmon v. State

, 167

S.W.3d 610, 614 (Tex.App.

-- Houston [14th Dist.] 2005, pet. ref ’ d) (where victim identified defendant in court, a

rational jury could have found him guilty of aggravated robbery without DNA , fingerprint, or other evidence of the

gun or cash that defendant took from his victim), citing Santos v. State, 116 S.W.3d 447, 459 (Tex.App.

-- Houston

[14th Dist.] 2003, pet. ref ’ d) (rejecting argument that lack of fingerprints connecting appellant to robbery rendered10

evidence about Appellant ’ s identity does not render the evidence insufficient, as Nassi ’ s in

- court

identification of A ppellant as his assailant was, by itself, sufficient to establish his guilt. See

Aguilar v. State

, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971) (concluding that the testimony of an

eyewitness alone was sufficient to support the jury ’ s verdict.); Sandoval v. State

, No. 08

- 11

- 00283

-

CR, 2013 WL 5873296, at *14

- 15 (Tex.App.

-- El Paso Oct. 30, 2013, pet. ref ’ d) (not designated

for publication) (victim ’ s in

- court identification of defendant as perpetrator of aggravated robbery

was legally sufficient to support a conviction).

Nassi not only positively identified Appellant as his assailant at trial, but he also identified

Appellant from a photo lineup that the Public Defender ’ s investigator showed him before trial.

T he jury was the sole judge of Nassi ’ s credibility and the weight to be given his testimony, and

was free to resolve any inconsistencies in Nassi ’ s testimony

— or in the other evidence presented

at trial

— in determining whether the State proved Appellant ’ s identity as the perpetrator beyond a

reasonable doubt. See Azzam v. State

, No. 08

- 17

- 00137

- CR, 2019 WL 457608, at *3 (Tex.App.

-

- El Paso Feb. 6, 2019, no pet.) (not designated for publication) (victim ’ s testimony could support

the jury ’ s verdict, despite inconsistencies in victim ’ s testimony and the existence of conflicting

evidence); Mauldin v. State

, No. 08

- 09

- 00028

- CR, 2010 WL 4523761, at *3 (Tex.App.

-- El Paso

Nov. 10, 2010, pet. ref ’ d) (not designated for publication) (where victim testified about defendant ’ s

identity, jury ’ s verdict was conclusive despite conflicting testimony from other witnesses because

the jury was the sole judge of the witnesses ’ credibility and the weight attributed to their

testimony).

Moreover, there was a dditional circumstantial evidence from which the jury could have

reasonably inferred that Appellant was Nassi ’ s assailant

. Appellant had been ejected from the b ar

evidence insufficient to support conviction).11

shortly before the stabbing, and the jury could have inferred that not only was he in the general

area at the time of the s tabbing but that he had the opportunity and the motive to commit the

offense. See Merritt v. State

, 368 S.W.3d 516, 526 (Tex.Crim.App. 2012) (recognizing that motive

and opportunity can be circumstantial evidence that the defendant was the person who committed

an offense)

. In addition, when Officers Alvarez and Serna responded to the 911 call for the

stabbing, they observed Appellant being chased by the three civilians who were shouting that

Appellant was the individual who stabbed Nassi. And finally, the record reflects that Appellant

was later photographed in the hospital with blood on his hand.

As a result, viewing the combined and cumulative force of both the direct and

circumstantial evidence presented at trial, and viewing that e vidence in the light most favorable to

the jury ’ s verdict, we conclude that there was legally sufficient evidence to support the jury ’ s

verdict of aggravated assault with a deadly weapon.

C. The O ffense o f Taking a Weapon f rom a Peace Officer

At the time Appellant was charged, t he elements of the offense of taking a weapon from a

peace officer, as alleged in Count Two in the indictment

, were that (1) Appellant (2) intentionally

or knowingly (3) with force (4) took Officer Alvarez ’ s taser (5) intending to harm Officer Alvarez.

Act of June 17, 2011, 82 nd Leg., R.S., ch

. 839, § 5

, 2011 T EX

. G EN .L AWS 2110 (amended 2019)

(current version at T EX .P ENAL C ODE A NN

. § 38.04 ). 6 Appellant does not deny that he

intentionally or knowingly took Officer Alvarez ’ s taser, or that he did so by force. But he denies

6 This offense was committed on January 8, 2019

. The Penal Code was amended

, effective September 1, 2019, to

omit the requirement that the defendant acted with the “ intent to harm ” the officer

. See Act of May 22, 2019, 86th

Leg., R.S., ch. 647, § 1, 2019 T EX

. G EN

. L AW S 1893 c h. 647 (current version at T EX .P EN AL C ODE A NN

. § 38.14 (b )) (a

person “ c ommits an offense if the person intentionally or knowingly and with force takes or attempts to take from a

peace officer

. . . the officer ’ s

. . . firearm, nightstick, stun gun, or personal protection chemical dispensing device ” ).

This case, therefore, is governed by the prior version of the statute.12

that there was any evidence to support a finding that he took the taser with the intent to harm

Officer Alvarez

. 7 And in fact, he argues that the only evidence of his intent established that he

t ook the taser with the intent to protect himself, rather than to harm the officer

. H e points out that

on cross

- examination, Officer Alvarez agreed w ith the statement that Appellant took the taser

away from him to stop the officer from continuing to stun him. 8 T his single answer by Officer

Alvarez

, however, does not preclude a finding that Appellant act ed with the requisite intent to

harm the officers

.

First, although Officer Alvarez testified that he believed Appellant may have been trying

to protect himself when he took the taser, he did not testify that he believed this was Appellant ’ s

only intent in doing so

. Appellant may have had more than one intent in taking the taser

—he may

have taken the taser not only to protect himself, but also with the intent to harm Officer Alvarez

,

and would have done so if the officer had not regained possession of the taser in time

. See Barnes

v. State

, No. 14

- 05

- 00144

- CR, 2006 WL 2548186, at *7

- 8 (Tex.App.

-- Houston [14th Dist.]

Sept. 5, 2006, pet. ref ’ d) (mem. op.

, not designated for publication) ( recognizing that jury could

reasonably infer that defendant took officer ’ s weapon during a struggle with the intent to harm the

officer, despite evidence that defendant expressed the intent to harm himself as well)

. We thus

do not find Officer Alvarez ’ s testimony dispose s of the issue of Appellant ’ s intent.

Moreover, the lack of direct testimony t hat Appellant inten ded to harm Officer Alvarez

7 T he Penal Code also provides that it is a “ defense to prosecution under this section that the defendant took or

attempted to take the weapon from a peace officer,

. . . who was using force against the defendant or another in excess

of the amount of force permitted by law. ” T EX .P ENAL C ODE A NN

. § 38.14(d). Appellant, however, did not raise

this defense at trial and does not contend that the officers used excessive force against him.

8 The officer testified on cross

- examination as follows:

[Defense Counsel]: Okay. And also when he’s grabbing that taser from you, what he’s trying to

do is keep you from using it on him. Right?

[Officer Alvarez]: Correct.13

would not preclude a jury from reasonably infer ring intent from the circumstances of the offense.

T here is seldom direct evidence of a defendant ’ s intent in committing an offense

, and therefore,

“ a culpable mental state must generally be inferred from the circumstances ” surrounding the

offense

. See Romano v. State

, 610 S.W.3d 30, 35 (Tex.Crim.App. 2020)

. Th us

, a jury may infer

a defendant ’ s intent by considering the defendant ’ s acts, words, and conduct before, during, and

after the offense

. See Zavala v. State

, No. 08

- 17

- 00136

- CR, 2019 WL 2241669, at *4 (Tex.App.

-

- El Paso May 24, 2019, pet. ref ’ d) (not designated for publication) (a defendant ’ s culpable mental

state is generally proven by circumstantial evidence, and the jury may consider events before,

during, and after the commission of the offense) ; see also Knight v. State

, 457 S.W.3d 192, 199

(Tex.App.

-- El Paso 2015, pet. ref ’ d) ( same). As the Court of Criminal Appeals has explained, a

court “ cannot read an accused ’ s mind, and absent a confession, we must infer his mental state from

his acts, words and conduct. ” Romano

, 610 S.W.3d at 35

.

Here, the circumstantial evidence showed that Appellant was engaged in a prolonged

physical struggle with the officers and was hitting and kicking them in an apparent attempt to avoid

being taken into custody

. See generally Fenderson v. State

, No s

. 03

- 20

- 00161

- CR, 03

- 20

- 00162

-

CR

, 2021 WL 2231925, at *2

- 4 (Tex.App.

-- Austin June 3, 2021, no pet.) ( mem.op., not designated

for publication) (jury could have reasonably inferred from circumstances of the case that defendant

intentionally or knowingly took peace officers ’ taser

, where he gained possession of it while

fighting the officers and resisting arrest, and where officer had to forcefully take it away from

him); Olivarez v. State

, No. 07

- 09

- 00223

- CR, 2010 WL 2756917, at *6 (Tex. App

. -- Amarillo

July 13, 2010, no pet.) (mem. op.

, not designated for publication) (jury could have reasonably

concluded that defendant intentionally or knowingly took officer ’ s taser where he was in a physical

struggle with officer and was attempting to avoid arrest at the time )

. It took two officers and14

several civilians to subdue Appellant. And he had to be sedated and handcuffed to his gurney at

the hospital because of his continued resistance and attempts to spit at the officers.

A lthough the record contained conflicting evidence of Appellant ’ s intent in taking the

taser

— as with any other element of an offense

— we must presume that the jury resolved th ose

conflicts in favor of the verdict and defer to that determination. Merritt

, 368 S.W.3d at 525

- 26

.

We therefore conclude that t here was legally sufficient evidence to support Appellant ’ s conviction

for taking the taser from Officer Alvarez with the intent to harm him.

D

. The O ffense of A ssault on a P eace O fficer

The elements of the offense of Assault on a Peace Officer, as alleged i n Count Three in the

Indictment, are that (1) Appellant (2) intentionally, knowingly, or recklessly (3) caused bodily

injury to Officer Alvarez by kicking Officer Alvarez ’ s leg (4) knowing that Officer Alvarez was a

public servant (5) while Officer Alvarez was discharging his official duties by attempting to arrest

or detain Appellant. See T EX .P EN AL C ODE A NN

. § 22.01 (b

- 2)

. Appellant challenges only the

intent element, arguing that there was insufficient evidence as a matter of law to establish that he

acted either voluntarily or intentionally in assaulting Officer Alvarez

. He claims that while being

tas ed during the police encounter, he would be unable to physically control his movements

.

Generally

, a defendant only commits an offense if he voluntarily engages in the conduct

alleged to be criminal. See Rogers v. State

, 105 S.W.3d 630, 639 (Tex.Crim.App. 2003)

(recognizing that before criminal responsibility may be imposed, the actor ’ s conduct must

“ include[ ] either a voluntary act or an omission when the defendant was capable of action. ” ) ; see

also T EX .P EN AL C ODE A NN

. § 6.01(a) ( “ A person commits an offense only if he voluntarily

engages in conduct, including an act, an omission, or possession ” ). And body movement s are not

voluntary if they are “ the nonvolitional result of someone else ’ s act, are set in motion by some15

independent non

- human force, are caused by a physical reflex or convulsion, or are the product of

unconsciousness, hypnosis or other nonvolitional impetus [.] ” Rogers

, 105 S.W.3d at 638

. Yet

t he question of whether a defendant has acted in a voluntary manner is a “ low threshold, ” and even

“ accidental or unintentional movements and actions are voluntary. ” Rodriguez v. State

, 629

S.W.3d 229, 234 (Tex.Crim.App. 2021), citing Rogers

, 105 S.W.3d at 638

- 39. Thus, o nly if an

outside force directly causes the movement, or if the movement results from truly nonvolitional

action such as a muscle spasm, will an action be treated as involuntary

. Id.

Appellant argues that the evidence established as a matter of law that he did not act

voluntarily when he kicked Officer Alvarez

, as the undisputed evidence demonstrated that he had

been repeatedly tase d during his struggle with the officers

, which he claims caused him to lose

control of his muscle functions

. True enough, o fficers Alvarez and Serna repeatedly use d their

taser s on him during the police encounter

. H owever, the record does not contain undisputed

evidence that the taser caused Appellant to lose control of his muscles

. To the contrary, the record

shows the opposite

— that he maintained control of his physical abilities throughout his struggle

with the officers

. 9

While it is true that the officer testified at trial that tasing in general can cause a person to

lose muscle co ntrol, essentially causing the p erson ’ s muscles to be “ deactivate [ d ] ” or

“ incapacitate [ d ]

, ” the y also testified that the tasing here appeared to have no effect on Appellant

.

9 O ur sister courts have found that when a defendant has started a physical struggle with an officer in which th e officer

is injured, the accused cannot rely on the defense that the officer was injured as the result of an involuntary movement

occurring during the struggle because the action of initiating the struggle is enough to render the accused ’ s actions

voluntary. See, e.g.

, Rollins v. State

, No. 01

- 14

- 00768

- CR, 2016 WL 635218, at *9 (Tex.App.

-- Houston [1st Dist.]

Feb. 11, 2016, no pet.) (mem. op

., not designated for publication) (where defendant struggled with officer to resist

arrest, his conduct was voluntary, even though the officer may have been injured by the defendant ’ s involuntary

actions that occurred during the struggle); Cruz v. State

, 838 S.W.2d 682, 686 (Tex.App.

-- Houston [14th Dist.] 1992,

pet. ref ’ d) (where prison inmate engaged in a physical struggle with prison guards, and fell on top of an officer, which

dislocated the officer ’ s shoulder, he committed the required voluntary act by instigating the altercation). That

argument is not raised by the parties here, and we express no opinion on whether or how it would apply to these facts.16

Appellant was not only able to take the taser prongs from his body, but was even able to take a

taser away from Office r Alvarez in the midst of t heir attempts to subdue him. Standing alone,

this evidence was sufficient to allow the jury to reject Appellant ’ s claim that he had lost control of

his muscular functions due to the tasing, and to reject his claim that he acted involuntarily in

k icking Office r Alvarez

. See, e.g.

, Hale v. State

, No. 03

- 12

- 00810

- CR, 2013 WL 4822954, at *4

(Tex.App.

-- Austin Aug. 30, 2013, no pet.) ( mem. op., not designated for publication) (where

officers testified that tasing of defendant was ineffective and failed to subdue him, the jury was

free to reject defendant ’ s claim that he acted involuntary when he bit one of the officers during

their ongoing struggle); see also Olivarez

, 2010 WL 2756917, at *4 (the jury could have

reasonably rejected defendant ’ s theory that he suffered involuntary muscle contractions resulting

from being drive

- stunned by officer ’ s taser, where he gained possession of officer ’ s taser during

their struggle)

.

A nd finally, we find th at the jury could have reasonably inferred that Appellant harbor ed

the requisite mental state when he kicked Officer Alvarez. As discussed above

, the evidence

established that Appellant was fighting with the officers throughout the police encounter

, both

before and after being tas ed

, and was refusing to be subdued despite their best efforts. Therefore,

the jury could have reasonably inferred th at Appellant kicked Officer Alvarez during this melee

with the intent to cause him bodily harm

, or that at the least, he committed the act in a knowing or

reckless manner. We therefore conclude that there was legally sufficient evidence to support

Appellant ’ s conviction f

or assault on a peace officer.

Appellant ’ s Issue Three is o verruled.17 

### IV. T HE 

### J URY 

### C HARGE

In Issue Two, Appellant argues that the trial court erred in refusing to provide the jury with

his requested “ volu ntariness ” instructio n, which would have informed the jury that a person

commits an offense only if he voluntarily engages in the conduct that is made criminal

, and that

he therefore could not be convicted of assaulting Officer Alvarez if the jury found that his actions

were involuntary

. 10 For the reasons noted below, we conclude that even if the trial court erred by

failing to give the jury a voluntary conduct instruction, any such error did not harm Appellant ’ s

case.

A. Applicable Law

The trial court must provide the jury with a written charge distinctly setting forth the law

applicable to the case. See Maciel v. State

, 631 S.W.3d 720, 722 (Tex.Crim.App. 2021)

. T he

Court of Criminal Appeals has recognized that a “ judge must give a requested instruction on every

defensive issue raised by the evidence without regard to its source or strength, even if the evidence

is contradicted or is not credible. ” Krajcovic v. State

, 393 S.W.3d 282, 286 (Tex.Crim.App.

2013); Jordan v. State

, 593 S.W.3d 340, 343 (Tex.Crim.App. 2020) (a defensive instruction must

be given “ [r]egardless of the strength or credibility of the evidence, ” as long as there is some

evidence in the record to support it). In general, the defendant bears the burden of producing

some evidence that raises the defense. Zuliani v. State

, 97 S.W.3d 589, 594 (Tex.Crim.App.

10 The relevant portion of the application charge language that Appellant requested read s as follows:

You are instructed that a person commits an offense only if he voluntarily engages in conduct,

including an act, omission, or possession. Conduct is not rendered involuntary because the person

did not intend the results of his conduct.

Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in

question the defendant, Eduard Soria, did cause the injury of Dionicio Alvarez by kicking Dionicio

Alvarez as alleged in the indictment, but you further believe from the evidence, or you have a

reasonable doubt thereof, that the injury was a result of an accident and was not the voluntary act of

conduct of the defendant, you will acquit the defendant and say by your verdict “ Not Guilty. ”18

2003) ; see also T EX .P EN AL C ODE A NN

. § 2.03(c) (the “ issue of the existence of a defense is not

submitted to the jury unless evidence is admitted supporting the defense ” ). But w hen reviewing

a trial court ’ s ruling denying a requested defensive instruction, we view the evidence in the light

most favorable to the defendant ’ s requested instruction. Rodriguez

, 629 S.W.3d at 231 (w hether

the evidence supports a requested defensive instruction is viewed in the light most favorable to the

requested instruction).

W hile a defendant ’ s mental state is an element of the offense that the State must prove,

voluntariness is a defensive issue which must be raised by the evidence before a voluntariness

instruction is warranted

. Brown v. State

, 955 S.W.2d 276, 279

- 280 (Tex.Crim.App. 1997). But

w hen the evidence raises voluntariness of a defendant ’ s conduct, the jury must be charged, when

requested, on that issue. Id. at 280 ; see also Payne v. State

, 33 S.W.3d 374, 376 (Tex.App.

--

Houston [1st Dist.] 2000, pet. ref ’ d) ( trial court erred by refusing to give an involuntary

- conduct

instruction where two witnesses testified that victim was shot when she tried to slap away a gun

the defendant was holding, causing it t o discharge).

B. Whether Sufficient Evidence Supported a Voluntary Conduct Instruction

The jury heard evidence that Appellant was repeatedly tased, and that the taser is intended

to incapacitate a person ’ s control over their muscle movements. From this, Appellant contends

the jury should have been instructed on the effect of involuntary movements.

The State responds that the evidence did not support the instruction for these two reasons :

(1) Appellant did not testify at trial and therefore did not “ admit ” that he kicked the officer

, and

(2) the evidence about the effects of tasing was theoretical at best, and did not establish that

Appellant did in fact lose muscle control here

. As for its first argument, a defendant need not

testify to be entitled to a defensive instruction if the evidence otherwise supports the defensive19

theory. T he Court of Criminal Appeals has repeatedly held, “ a defense is supported (or raised)

by the evidence if there is some evidence, from any source

, on each element of the defense that, if

believed by the jury, would support a rational inference that th e element is true. ” Shaw v. State

,

243 S.W.3d 647, 657

- 58 (Tex.Crim.App. 2007) (emphasis supplied) ; see also Lozano v. State

, 636

S.W.3d 25, 33 (Tex.Crim.App. 2021) (evidence of self

- defense need not come from the defendant

and can instead be raised by other witnesses ’ testimony about the defendant ’ s acts and words at

the time of the offense)

. Officer Alvarez testified that Appellant kicked him, and Appellant never

disputed that fact ; instead, h is defense counsel repeatedly argued to the jury that the kicking

occurred in an involuntary matter. We find this sufficient to establish that Appellant conceded

that the act occurred. See generally Rogers

, 105 S.W.3d at 639 n.30 ( “ When a person claims the

involuntary

- act defense he is conceding that his own body made the motion but denies

responsibility for it. ” ) (citations omitted) ; Phillips v. State

, No. 08

- 19

- 00167

- CR, 2020 WL

7022657, at *3 (Tex.App.

-- El Paso Nov. 30, 2020, no pet.) (not designated for publication)

(same). 11

The State ’ s second argument is that the testimony of the effects of a taser was only

theoretical

, and not specific to Appellant. For instance, Officer Serna testified on cross

examination:

[Defense Counsel]: And throughout this period of time, your muscle function is effected

by the taser

--

[Officer Serna ]: Yes.

[Defense Counsel]:

-- and you ’ re not really in control of your muscle reactions at that

point?

11 We contrast this with situations in which the defendant has expressly denied committing an act, which may render

the defendant ineligible to receive the instruction. See Trujillo v. State

, 227 S.W.3d 164, 169

- 70 (Tex.App.

-- Houston

[1st Dist.] 2006, pet. ref ’ d) (where defendant denied at trial that he committed the act of pulling the trigger of gun that

killed his victim, he was not entitled to an instruction on involuntary conduct)

. Here, no such denial occurred.20

[Officer Serna]: Correct.

We need not reach the issue of whether the testimony needed to be general

, or specific to

Appellant, as we find that any error in refusing to give the instruction was harmless.

C

. Whether Appellant was Harmed b y t he Failure t o Give t he Instruction

W hen analyzing a jury charge issue, an appellate court uses a two

- pronged test and first

determine s whether there was error and

, if so, it must then determine whether the error caused

sufficient harm to warrant a reversal. Almanza v. State

, 686 S.W.2d 157, 171 (Tex.Crim.App.

1984) (op. on reh ’ g) ; see also Torres v. State

, 543 S.W.3d 404, 414 (Tex. App

. -- El Paso 2018, pet.

ref ’ d), citing Ngo v. State

, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005)

. The amount of harm

necessary to warrant a reversal depends on whether the appellant objected to the jury charge

,

thereby preserving the error. See Torres

, 543 S.W.3d at 414

, citing Almanza

, 686 S.W.2d at 171.

If charge error was preserved, we review for “ some harm, ” but we review unpreserved error for

egregious harm. Id

. Because Appellant request ed a voluntary conduct instruction, we review

the trial court ’ s error in refusing to give the instruction for “ some harm. ”

In assessing “ some ” harm under Almanza

, an appellate court should consider four factors:

(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other

relevant information as revealed by the record as a whole. French v. State

, 563 S.W.3d 228, 235

-

36 (Tex.Crim.App. 2018)

, citing Almanz a

, 686 S.W.2d at 171

. And although this is a less

exacting standard than the egregious harm standard we apply when jury charge error has not been

preserved, the “ standard of ‘ some ’ harm still requires that the record reveal ‘ actual, ’ and not merely

‘ theoretical ’ harm. ” Id

. at 235 ; see also Gonzalez v. State

, 610 S.W.3d 22, 27 (Tex.Crim.App.

2020) ( same). Thus

, when “ a record reveals a risk of harm that is so small that it may properly

be characterized as not ‘ remotely significant, ’ or where the risk of harm is “ almost infinitesimal, ’21

any harm resulting from the error is only theoretical harm

. ” Frenc h

, 563 S.W.3 d at 239 ( citations

omitted).

1

. Factor o ne: t he e ntirety of the j ury c harge

In considering the first factor

— the entirety of the jury charge

— the State f ocuses on the

instruct ion of the requisite mental states necessary to convict Appellant of the assault on Officer

Alvarez

. That instruction informed the jury that a person acts intentionally as to the nature of his

conduct when it is his conscious objective or desire to engage in the conduct. The State argues

that the jury charge already required the jury to find that Appellant acted in a voluntary manner in

kicking Officer Alvarez

— with a conscious objective or desire to do so. But the “ issue of the

voluntariness of one ’ s conduct, or bodily movements, is separate from the issue of one ’ s mental

state. ” Brown

, 955 S.W.2d at 280

. The jury was also informed that it could convict Appellant

of the assault on Officer Alvarez based solely on a finding that he acted “ knowingly ” as for the

nature of his conduct, which only required a finding that Appellant was “ aware of the nature of his

conduc t ” and was “ aware that his conduct [was] reasonably certain to cause the result. ” I t is

possible to imagine a scenario in which a person ha s lost control of his bodily movements

, but may

still be mentally aware of the movements. In other words, it is at least theoretically possible that

A ppellant may have been mentally “ aware ” that he was kicking Officer Alvarez, but might still

have been unable to control his actions at that time due to being tased

. Accordingly, we do not

believe that the jury charge fully informed the jury of the need to find that Appellant ’ s actions

were voluntary, and therefore the entirety of the jury charge favors a finding of harm.

2. Factor t wo: t he s tate of the e vidence

We reach a different result as for the second factor, as we find that the state of the evidence

bodes against a finding of harm. As summarized above, although the evidence at trial suggested22

th at a person could theoretically become incapacitated from being repeatedly tased, there was no

evidence that the tasing did in fact have t his effect on Appellant

. T o the contrary

, the

overwhelming evidence suggested that Appellant was not affected by the tasing

. Moreover, as

was also discussed above, the evidence established that Appellant was acting aggressively towards

the officers from the start of their encounter, and was physically struggling against them before

,

during, and after the tasing began. Accordingly, we find little, if any, evidence t o support a

finding that Appellant had lost control of his muscle functions due to the tasing

, or that his action

in kicking Officer Alvarez was otherwise involuntary

. We therefore conclude that this factor

weighs heavily against a finding of harm.

3. Factor t hree: t he j ury a rguments

We also conclude that the third factor, the nature of the jury arguments, weighs against a

finding of harm. As discussed above

, although the trial court denied Appellant ’ s request to give

an involuntary

- conduct instruction, the court expressly allowed defense counsel to argue to the

jury that Appellant kicked Officer Alvarez involuntarily as the result of being tased. And defense

counsel exploited this opportunity

, repeatedly encouraging the jury during closing argument to

acquit Appellant of the assault on that basis. 12 That the jury found Appellant guilty of the offense

,

despite defense counsel ’ s repeated arguments that Appellant ’ s conduct was involuntary

, suggests

that the jury simply did not believe Appellant ’ s defense

. We therefore conclude that t his factor

therefore weighs heavily against a finding of harm

.

12 We note that the trial court gave defense counsel wide latitude to make that argument, overruling the State ’ s

objection that there was no medical testimony to support defense counsel ’ s claim that the tasing caused

“ neuromuscular incapacitation, ” which he characterized as being “ strong, involuntary, long muscle contractions. ” In

addition, defense counsel argued

— without objection

— that the officers had testified that Appellant had lost all

voluntary use of his body, when in fact

, as the State ’ s attorney pointed out during closing arguments

, the officers only

testified at trial to the theoretical effects of being tased.23

Finding no other relevant factors

, we conclude that the risk of harm from the trial court ’ s

refusal to give a voluntary conduct instruction was so small that it may properly be characterized

as not “ remotely significant, ” or even “ infinitesimal, ” such that any harm resulting from the failure

to give the instruction was at most only “ theoretical harm. ” Frenc h

, 563 S.W.3 d at 239

.

Appellant ’ s Issue Two is overruled.



### V. N ASSI 

### ’ S 

### P RIOR 

### S TATEMENTS

In Issue One, Appellant contends that the trial court erred by excluding prior inconsistent

statements from the victim

. Those statements arise from an interview of Nassi b y Yoland a Juarez,

an investigator from the El Paso Public Defender ’ s Office

. The statements can be broken into

two categories

, which we address separately as they involve different considerations

.

A. Statements A bout Appellant ’ s Identity

First, Appellant contends that Nassi made statements to Juarez during the interview

suggesting that he was uncertain if he could identify his assailant

. Appellant contends that the se

statements were inconsistent with his trial testimony in which he unequivocally identified

A ppellant as his assailant

, and were therefore admissible under Rule 613 of the Texas Rules of

Evidence. H e also contends that the trial court ’ s decision to exclude the statements deprived him

of his constitutional right to present his defense of mistaken identity, and further violated his S ixth

Amendment right to confront witnesse s

. We conclude

, however, that the trial court did not abuse

its discretion in excluding the statements under the rules of evidence, any error in excluding the

prior statements was not of a constitutional nature

, and was instead at most an evidentiary error

harmless to Appellant ’ s case.24 1

. Rule 613 of the Texas Rules of Evidence

Assuming a proper foundation has been laid

, Rule 613 permits a party to impeach a witness

with any prior inconsistent statements that conflict with their trial testimony

. See Ex parte Saenz

,

491 S.W.3d 819, 827 (Tex.Crim.App. 2016) citing T EX

. R

. E VID

. 613(a). The most fundamental

foundational requirement is that the prior statement and the witnesses ’ trial testimony are

inconsistent with each other. 13 See Lopez v. State

, 86 S.W.3d 228, 230 (Tex.Crim.App. 2002) ( to

qualify for admission under Rule 613(a), the court must first “ be persuaded that the statements are

indeed inconsistent ” ); see also Wisenbaker v. State

, No. 08

- 19

- 00034

- CR, 2020 WL 6867067, at

*4 (Tex.App.

-- El Paso Nov. 23, 2020, no pet.) (not designated for publication) ( to be admissible

under Rule 613, a “ prior statement must actually be inconsistent with the witness ’ s trial

testimony ” ). I t is generally within the trial court ’ s discretion to make that determination, and as

long as the judge ’ s ruling is “ within the zone of reasonable disagreement, we will not intercede. ”

Lopez

, 86 S.W.3d at 230.

2. The claimed c onflicts in the t estimony

Nassi testified in the State ’ s case on direct examination that :

• He saw Appellant come into the bar

, bother the patrons, and Appellant was asked

to leave and did.

• Soon after, as Nassi was showing another employee how the front door locked,

Nassi saw someone come to his right side

, out of the corner of his eye who “ looked

like the guy that was in there

-- that had just gotten escorted out. ”

• Nassi made an in

- court identifi cation of Appellant as the person who stabbed him

.

13 The Rule also provides that the following foundational requirements must be met before a prior inconsistent

statement will be admitted: “ When examining a witness about the witness ’ s prior inconsistent statement

-- whether

oral or written

-- a party must first tell the witness: (A) the contents of the statement; (B) the time and place of the

statement; and (C) the person to whom the witness made the statement. ” T EX

. R

. E VID

. 613(a)(1). The witness must

then be given the opportunity to explain or deny the prior inconsistent statement. Id. at 613(a)(3). And finally, the

R ule provides that “ [e] xtrinsic evidence of a witness ’ s prior inconsistent statement is not admissible unless the witness

is first examined about the statement and fails to unequivocally admit making the statement. ” Id. at 613(a)(4); see

also Straker v. State

, No. 08

- 14

- 00112

- CR, 2016 WL 5845825, at *20 (Tex.App.

-- El Paso Sept. 30, 2016, no pet.)

(not designated for publication) (discussing foundational requirements under Rule 613).25

On cross

- examination, Nassi was asked about his interview with Juarez

. First he

described some manner of photo line

- up that she showed him:

DEFENSE COUNSEL: And so you both sat down and started to discuss the events

of the night of January 8th. Is that correct?

NASSI: No, we didn ’ t discuss nothing. She asked me to identify the suspect.

DEFENSE COUNSEL: Do you remember talking to her about giving her a

description of the individual that was there that night?

NASSI : By picture only.

. . .

DEFENSE COUNSEL: All right. Do you remember telling her that this individual

had a C

- like shaped tattoo in the middle of his chest as well as teardrop tattoos

running down his eye? Do you remember telling her that?

NASSI : Once I saw

-- identified the picture.

DEFENSE COUNSEL: But did you tell her that individual that you saw that night

had tattoos running down his eye, teardrop tattoos?

NASSI : With his picture, yes.

DEFENSE COUNSEL: Okay. But ’ s that ’ s not your recollection of the

-- but

that ’ s what you told her, that was the individual from the picture?

NASSI : Yes, sir. From the picture, yes.

. . .

DEFENSE COUNSEL : In this photograph that you keep talking about, you said

that that person looked like the attacker, but you were still not completely sure at

that time?

NASSI : Yes.

As to this line of questioning, Appellant wanted to offer Juarez to testify to the following which

was developed outside the presence of the jury:

DEFENSE COUNSEL: And did he

-- was he able to recognize

-- did he tell you

that he was able to recognize the assailant?

JUAREZ: He said he wasn ’ t sure.

DEFENSE COUNSEL: And that ’ s your recollection on this?26

JUAREZ: That is correct.

DEFENSE COUNSEL: At that point, did you at some point show him a photo

lineup?

JUAREZ: Yes, I did.

DEFENSE COUNSEL: And was he able to identify the individual

-- any individual

in that case as the assailant?

JUAREZ: He was

-- he initialed on Eduardo Soria ’ s picture, but he did have a hard

time making a choice and very apprehensive.

DEFENSE COUNSEL: Okay. Did you ask him to sign the picture?

JUAREZ: I did.

DEFENSE COUNSEL: Would he sign it?

NASSI : No, he would not.

The photos used in the “ line

- up ” were not shown to Nassi at trial and are not a part of our record.

I n Appellant ’ s cross

- examination of Nassi, he was also asked if he told Juarez that he was

unsure of Appellant ’ s identity

. B ut as the questioning revealed, there was some apparent

confusion about whether Nassi was saying he had doubts about identifying Appellant, or whether

he was saying he did not know Appellant :

DEFENSE COUNSEL: Okay. Going back to the interview with the investigator

from the Public Defender ’ s Office back in March of ‘ 98

-- excuse me, of 2019

. . . At that time, did you tell her that you were not sure of the identity of the person

who had just struck you?

NASSI: No, sir.

DEFENSE COUNSEL: You knew at that time who had struck you?

NASSI: I had remembered, yes. I didn ’ t know him, I remember the person.

DEFENSE COUNSEL: I ’ m not sure I understand your answer.

NASSI: I didn ’ t know his name, I remember his face, his appearance, physical

appearance. Yes.27

DEFENSE COUNSEL: Now, in your statement that you gave to her, you

indicated that you saw something out of the corner of your eye, movement, and

then you felt a blow and then the next thing was somebody told you that you had

been stabbed. You remember telling her that?

NASSI: Yes.

DEFENSE COUNSEL: And at that point, you were not certain who it was that

struck you?

NASSI: I was sure, yes.

DEFENSE COUNSEL: But that ’ s not what you told the investigator at that time.

Right?

NASSI: I did. I did.

W hen Juarez was questioned outside the presence of the jury, she recalled that Nassi was uncertain

of his identification:

DEFENSE COUNSEL: Did you make a distinction with Mr. Nassi about this

person, is he sure that that was the person who stabbed him or did you ask him a

question to that effect?

JUAREZ: Yes, I did.

DEFENSE COUNSEL: And what did he say?

JUAREZ: He said he wasn ’ t sure.

But the State ’ s prosecutor followed up and asked what specific question was asked of Nassi during

the interview:

PROSECUTOR: Ms. Juarez, what words did you use specifically to ask Mr. Nassi

in regards to if he knew Mr. Soria or didn ’ t know Mr. Soria?

JUAREZ: What I asked him was that if he had

-- if he knew the person who had

assaulted him, if he had seen him before.

PROSECUTOR: Okay. Are those two different questions, if he knew Mr. Soria

and then if you saw the person that did that to him?

JUAREZ: That is correct. Two different questions.

PROSECUTOR: Okay. What was his response to that if he knew the person who

stabbed him?28

JUAREZ: He stated that he did not know him.

PROSECUTOR: And then there was a follow

- up question to that. What was that

follow

- up question?

JUAREZ: If he had previously seen him.

PROSECUTOR: Okay.

JUAREZ: Previously seen him, like interacting with him.

PROSECUTOR: Okay. And what was answer to that one?

JUAREZ: He said no. Not prior to the date of the incident.

Following this last exchange, the trial court ruled that it would not allow Juarez ’ s testimony

because Appellant had not laid a proper predicate for the admission of a prior inconsistent

statement.

Appellant later recalled Nassi and had him confirm that then he testified before the jury

and when he spoke to Juarez, he recognized Appellant both as the person kicked out of the bar and

as the person who had stabbed him. The trial court again decline d to permit Juarez ’ s testimony

as a prior inconsistent statement.

3. The trial court did not abuse its discretion in excluding Juarez ’ s testimony

Appellant carried the burden of showing that Nassi made a prior inconsistent statement

f r om what he testified to at trial. Here, t he trial court did not abuse its discretion in failing to find

that Nassi made an inconsistent statement to Juarez. The crux of our conclusion in this regard is

the confusion apparent from the record about exactly what Nassi was answering at trial, and what

he was asked in his oral statement. One reading of the record is that Nassi had no problem

recognizing Appellant as the person who entered the bar and soon after stabbed him. Nassi did

not, however, know who he was before that attack. The record is disputable about whether Nassi29

was answering one of those questions, vers us the other, and the trial court could have reasonably

found that Nassi had not made a prior inconsistent statement.

Nor do we find an inconsistency in the questions about the photo line

- up

. Nassi agreed

he was shown a photo line

- up, and Juarez agreed that Nassi picked Appellant ’ s photo from that

line

- up. Her only observation was that Nassi had a “ hard time making a choice ” and appeared

“ very apprehensive

. ” Nassi was not specifically asked if he was apprehensive about selecting

Appellant from the line

- up. And h e answered yes, when asked if he was “ not completely sure ”

about the photo line

- up identification. On direct examination before the jury, h e also agreed that

he might have told Juarez that he could not identify Appellant from the photo line

- up and requested

an in person line

- up instead. Moreover, without the photo line

- up being in our record, we would

have no basis to conclude that any error in this one regard meets the standard for reversible error.

4

. No v iolation of Appellant ’ s c onstitutional r igh ts

And even if we conclude d there w as error in excluding the prior statements under Rule 613

,

it did not deprive Appellant of his constitutional right to present his mistaken

- identity defense to

the jury

. A lthough a criminal defendant has a constitutional right to have a meaningful

opportunity to present a complete defense

, erroneous evidentiary rulings rarely rise to the level of

denying a defendant the right to present a meaningful defense. See Potier v. State

, 68 S.W.3d

657, 663 (Tex.Crim.App. 2002). A n evidentiary ruling excluding evidence only rises to the level

of a constitutional violation if the trial court erroneously excludes otherwise relevant, reliable

evidence which “ forms such a vital portion of the case that exclusion effectively precludes the

defendant from presenting a defense. ” Id. at 665

. Yet the fact that a defendant may have been

“ unable to

. . . present his case to the extent and in the form he desired ” does not r ise to the level

of a constitutional error, if the defendant was not prevented from otherwise presenting the30

substance of his defense to the jury. Id. at 666, quoting United States v. Willie

, 941 F.2d 1384,

1398

- 99 (10th Cir

. 1991) ; see also Covarrubias v. State

, No. 08

- 11

- 00176

- CR, 2013 WL 557177,

at *2 (Tex.App.

-- El Paso Feb. 13, 2013, no pet.) (not designated for publication) (same).

Here, d espite the exclusion of Nassi ’ s statements to Juarez

, Appellant was not wholly

deprived of his right to present his defense of mistaken identity to the jury. Defense counsel

questioned Nassi at trial about his identification of Appellant as the assailant

, and defense counsel

argued extensively to the jury that this was a case of mistaken identity, contending that neither

Nassi nor Lozano

— the only two witnesses from the b ar who were called to testify at trial

—had an

adequate opportunity to observe Nassi ’ s assailant. As well

, defense counsel argued that the police

failed to conduct an adequate investigation

, did not take statements from the other individuals who

chased Appellant, did not take fingerprints at the scene, and did not take a ny blood swab s that

could have revealed the true identity of the assailant. In short, Appellant was in fact able to

present a meaningful defense to the jury, even if not as fully as he would have liked.

We also disagree with Appellant ’ s argument that the trial court ’ s exclusion of Nassi ’ s prior

statements to Juarez deprived him of his Sixth Amendment right to confront witnesses

. While the

Sixth Amendment include s the right to cross

- examine witnesses to attack their general credibility

or to show their possible bias, self

- interest, or motives in testifying

, it only “ guarantees an

opportunity for effective cross

- examination, not cross

- examination that is effective in whatever

way, and to whate ver extent, the defense might wish. ” Woodall v. State

, 336 S.W.3d 634, 643

(Tex.Crim.App. 2011) (em phasis in original)

, citing Delaware v. Fensterer

, 474 U.S. 15, 19

(1985) ; see also Wisenbaker

, 2020 WL 6867067, at *5 (same). Thus, the “ Confrontation Clause

is generally satisfied when the defense is given a full and fair opportunity to probe and expose

[forgetfulness, confusion, or evasion] through cross

- examination, thereby calling to the attention31

of the factfinder the reasons for giving scant weight to the witness ’ testimony. ” Woodall

, 336

S.W.3d at 643

, citing Fensterer

, 474 U.S. at 21

- 22

. And because the right to confront witnesses

is not unqualified, “ a trial judge has wide discretion in limiting the scope and extent of cross

examination. ” Johnson v. State

, 490 S.W.3d 895, 910 (Tex.Crim.App. 2016)

, citing Delaware v.

Van Arsdall

, 475 U.S. 673, 679 (1986) ( “ [T]rial judges retain wide latitude ” under the

Confrontation Clause to impose restrictions on cross

- examination based on such criteria as

“ harassment, prejudice, confusion of the issues, the witness ’ safety, or interrogation that is

repetitive or only marginally relevant. ” ) ; see also Johnson v. State

, 433 S.W.3d 546, 551

- 52

(Tex.Crim.App. 2014) (recognizing that trial courts “ retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross

- examination, ” so

long as those limits do not infringe on the Confrontation Clause ’ s guarantee of “ an opportunity for

effective cross

- examination ” ) (emphasis in original)

.

Here, as set forth above, defense counsel had the opportunity to cross

- examine Nassi about

the certainty of his identification of Appellant as his assailant, and we therefore do not find that

his Sixth Amendment rights were violated

.

5

. Appellant was not h armed by the e xclusion

Finding no c onstitutional violation, any error at most would be review ed under the non

constitutional error standard

. And any non

- constitutional error “ that does not affect substantial

rights must be disregarded. ” T EX .R.A PP .P

. 44.2 (b)

. E ven assuming some trial court error, we

find that it would not affect Appellant ’ s substantial rights. As reflected above, some of Nassi ’ s

uncertainty in the identification was already before the jury. He testified that the person who

stabbed him looked like the person who had earlier been in the bar. Appellant ’ s cross

examination of Nassi before the jury brought up the photo line

- up, and that Nassi picked Appellant32

out of that line

- up. But the jury also heard that he was not completely sure about that

identification, and further heard that Nassi (when referring to the photograph) agreed the Appellant

had a tear drop tattoo on his face (which he in fact does not have). Thus it is unclear how the

added testimony that Juarez might have offered would add to ammunition that Appellant already

had to impeach Nassi, particularly since those other questions lack clarity as to what Nassi was

being asked by Juarez. Along with the other circumstantial evidence described above linking

Appellant to the stabbing, Juarez ’ s testimony would have had little impeach ment value on the issue

of Appellant ’ s identi ty

. See generally Seamster v. State

, 344 S.W.3d 592, 601 (Tex.App.

--

Houston [14th Dist.] 2011, pet. ref ’ d) (defense counsel ’ s failure to present evidence in which

witness to a robbery made an out

- of

- court statement to a media outlet that he was either unable or

unwilling to identify the defendant in a photo lineup did not prejudice Appellant ’ s case, where the

witness made a n on

- scene identification of defendant and testified in court that he was certain of

his identification, and never told media outlet that he c ould not affirmatively identify the defendant

as the robber)

.

B

. The Prior Statements about the Victim ’ s Compensation Fund

F inally, A ppellant c ontends that the trial court erred in excluding evidence relating to

Nassi ’ s conversation with Juarez in which they discussed his right to receive compensation from

the county ’ s victim assistance fund. Specifically, Appellant contends that during the pretrial

interview, Nassi questioned Juarez about whether he would still be eligible to receive

compensation from the fund if he did not “ testify against ” Appella n t

. Appellant argues that the

fear of losing eligibility for compensation established a motive for Nassi to continue to “ falsely

accuse ” Appellant of the stabbing

.33

Appellant premises the admissibility of the evidence as prior inconsistent statement s under

Rule 613

. As well, he contends that the statement was relevant to impeach Nassi ’ s credibility,

and that t he trial court ’ s exclusion of the statement violated his Sixth Amendment right to confront

his witnesses and his Constitutional right to present a meaningful defense

. W e conclude,

however, that Appellant failed to establish the existence of a ny prior inconsistent statement s, and

further failed to demonstrate the relevanc e of the statements

.

1. No e vidence of a p rior i nconsistent s tatement

Although Appellant contends on appeal that Nassi ’ s conversation with Juarez about the

victim ’ s compensation fund was inconsistent with Nassi ’ s recollection of it at trial, Appellant

never laid a proper foundation to establish that he ma de any inconsistent statements to Juarez on

this subject. At trial, Nassi testified that he did not ask Juarez about the compensation issue, but

did mention to her that he had been interviewed by someone from “ victim ’ s assistance ” when

obtaining compensation for his injuries

. He testified that she then responded that “ there was a

chance that they would not assist [him] with medical bills, ” if he did not testify. Nassi testified

that this c oncerned him as he could not work at the time due to his injuries

, but that despite Juarez ’ s

statement to him

, he did not believe that he needed to testify against Appellant to receive

compensation.

Although defense counsel argued to the trial court that Nassi brought up the subject of

compensation to Juarez and expressed concern to her that he might not receive compensation i f he

did not testify against Appellant, he never establish ed that Nassi made any such statements to her.

In his voir dire of J uarez

, defense counsel limited his questions to the issue of whether Nassi

expressed uncertainty about his ability to identify his assailant during the pretrial interview, and

he did not question Juarez about their conversation involving the victim ’ s compensation fund.34

And there is nothing else in the record save for counsel ’ s arguments suggesting that Nassi made

any inconsistent statements to Juarez on this subject. As a result, Appellant failed to lay a proper

foundation to establish that Nassi made the alleged prior inconsistent statement s to Juarez

. See,

e.g

., Wisenbaker v. State

, No. 08

- 19

- 00034

- CR, 2020 WL 6867067, at *4 (Tex.App.

-- El Paso

Nov. 23, 2020, no pet.) (not designated for publication) (appellant failed to preserve error where

he failed to make an adequate offer of proof that a prior inconsistent statement existed).

2. No v iolation of Appellant ’ s c onstitutional r ights

We also conclude that the trial court ’ s ruling excluding the alleged statements did not

violate Appellant ’ s Sixth Amendment right to confront a witness ’ s purported bias

. T he Sixth

Amendment provides a defendant with the right to cross

- examine a witness ’ s credibility, or to

demonstrate a possible bias or motive for lying

. But that right is not unqualified, and a trial court

may limit the scope and extent of cross

- examination for various reasons, including to prevent

confusion of the issues at trial

, or interrogation that is only marginally relevant. 14 Johnson

, 490

S.W.3d at 910

, citing Van Arsdall, 475 U.S. at 679

. Here, the trial court limited Appellant ’ s right

to cross

- examine Nassi about his s tatements to Juarez about the victim ’ s compensation fund

,

finding that the conversation was not relevant to the issue of Appellant ’ s credibility and would

have unduly confused the jury. In particular, the trial court expressed a concern that allowing an

inquiry into that issue would open the door to “ litigating the purpose of the Victim ’ s Assistance

14 T he Texas Rules of Evidence allow for a similar restriction, allowing a trial court to exclude otherwise relevant

eviden ce to avoid confusing the issues and misleading the jury. See T EX .R.E VID

. 403 (trial court “ may exclude

relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence);

Henderson v. State

, 29 S.W.3d 616, 627 (Tex.App.

-- Houston [1st Dist.] 2000, pet. ref ’ d) ( “ Confusion of the issues

occurs when introduction of the contested evidence raises ‘ the probability that the proof and the answering evidence

that it provokes may create a side issue that will unduly distract the jury from the main issues. ’” ) (citation omitted) ;

see also Barajas v. State

, No. 08

- 97

- 00405

- CR, 2003 WL 21674201, at *5 (Tex

. App.

-- El Paso July 17, 2003, no pet.)

(not designated for publication) ( “ Confusion of the issues can occur when admitting certain evidence raises the

probability that a side issue may be created which will unduly distract from the main issues in the case. ” ).35

Fund and how it works

, ” and th e court did not believe that t his was an appropriate subject for the

jury ’ s consideration. Under the record here, n or do we

. The version of the Code of Criminal

Procedure in effect at the time of Appellant ’ s offense only required the victim of a violent crime

to timely report the offense, to provide truthful information in his application, and to cooperate

with law enforcement officials to apply for compensation for his injuries

. 15 In other words,

nothing in the relevant statutes would have required Nassi to identify Appellant as his assailant in

order to receive compensation, and in fact, he could have been denied compensation for falsely

accusing Appellant of the offense. T EX .C ODE C RIM .P RO C .A NN

. art. 56.63(a)(2), repealed by Acts

2019, 86th Leg., ch. 469, § 3.01(2), 2019 T EX .G EN .L AWS 1150 (current version found at

T EX .C ODE C RIM .P RO C .A NN

. art. 56B.501) (imposing an administrative penalty for knowingly

providing false information in a compensation application)

. As a result, it c ould have been

misleading and confusing to the jury to introduce evidence suggesting that Nassi had a motive to

falsely accuse Appellant of the stabbing in order to receive compensation, when in fact he would

have had no reason to do so. See generally Rivera v. State

, No. 03

- 09

- 00101

- CR, 2010 WL

3619945, at *3 (Tex.App.

-- Austin Sept. 15, 2010, no pet.) (mem. op., not designated for

publication) (finding that defendant ’ s assertion that rape victim had a motive to falsely accuse him

of rape because she sought to obtain Crime Victim ’ s Compensation funds to pay for an abortion

was “ illogical, ” as victim would have no “ reason to falsely accuse [the defendant] in order to obtain

the funds ” ).

15 At the time of Appellant ’ s offense, the compensation provisions were found in Chapter 56 of the Texas Code of

Criminal Procedure, but those provisions were repealed effective 2021, and replaced with the cur rent provisions found

in Chapter 56B. Although the statute was renumbered and replaced by the current version of the statute, the

requirements for filing an application and receiving compensation remain substantially the same. See (Former)

T EX .C ODE C RIM .P RO C

. A NN

. a rt s

. 56.41(b)(1

- 7); 56.45 ; 56.46 (a) (1)

, repealed by Acts 2019, 86th Leg., ch. 469,

§ 3.01(2), 2019 T EX .G EN .L AWS 1150 ( current version s found at T EX .C ODE C RIM .P RO C .A NN

. a rts 56B.053(a)

56B.057 (b)(1)(7) ; 56B.107(a)(1) ).36

For similar reasons, we do not believe that the trial court ’ s decision to exclude the evidence

pertaining to Nassi ’ s conversation with Juarez about the victim ’ s compensation fund denied

Appellant the opportunity to present a meaningful defense. As explained above, an evidentiary

ruling excluding evidence only rises to the level of a constitutional violation if the trial court

erroneously excludes otherwise relevant, reliable evidence which “ forms such a vital portion of

the case that exclusion effectively precludes the defendant from presenting a defense. ” Potier

, 68

S.W.3d at 665. As discussed above, the evidence pertaining to his discussion with Juarez about

the victim ’ s compensation fund was neither relevant nor reliable

. Nor do we believe that it formed

a vital portion of Appellant ’ s defense of mistaken identity, such that it rose to the level of a

constitutional violation

, particularly since Appellant could attack Nassi ’ s identification of him in

other alternate ways. Se e Hammer v. State

, 296 S.W.3d 555, 567

- 68 (Tex.Crim.App. 2009)

( exclusion of evidence related to witness ’ s motive to lie did not rise to the level of a constitutional

error, where defendant ’ s “ general defensive theory was presented to the jury through alternate

testimony )

. Thus, we reject Appellant ’ s argument that the trial court violated his constitutional

rights by excluding this evidence.

Appellant ’ s Issue One is overruled.



### V I

. C ONCLUSION

T he trial court ’ s judgment is affirmed.

JEFF ALLEY, Justice

July 27 , 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)