Opinion issued September 7, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00399-CR

———————————

CHARLES EDWARD JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Case No. 19,199

MEMORANDUM OPINION

The trial court found appellant, Charles Edward Johnson, guilty of the felony 

offense of aggravated assault,1and the trial court assessed his punishment at 

1 See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(1). 
2

confinement for fifteen years. In his sole issue, appellant contends that the trial court

erred in not admitting certain defensive evidence.

We affirm.

Background

The complainant, Charlene Hope Atkinson, testified that appellant is her 

nephew and appellant’s mother, Benita Atkinson, is her sister. In October 2020, the 

complainant lived in a house at 300 Barbee Street, Brenham, Washington County, 

Texas, which was Benita’s house. Appellant lived on the same property in his sport 

utility vehicle (“SUV”). According to the complainant, Benita did not want 

appellant living in the home, and the complainant did not have any knowledge of an 

arrangement between Benita and appellant that would let appellant stay outside the 

home in his SUV. Appellant would park his SUV next to the driveway in front of 

the house.

The complainant further testified that to get power to his SUV, appellant used 

the complainant’s extension cord, which was connected to the house in the utility 

room and ran to his SUV. Appellant also used the complainant’s water hose to 

supply him with water. He did not pay rent or pay a portion of the utilities for the 

house.

At some point, in October 2020, while appellant was staying in his SUV at 

the house, the complainant went outside and used her poultry shears to cut her water 
3

hose and her extension cord that were running to appellant’s SUV. The complainant 

did so “to make a point” and to “save a little money” because she was “tired of” 

paying the bills. Appellant was inside his SUV when the complainant cut the water 

hose and the extension cord. The complainant was not close to the SUV. After the 

complainant cut the water hose and extension cord, appellant started saying “some 

profanities.” The complainant did not respond to anything appellant said.

The complainant then started walking back to the front door of the house, still 

holding the shears, and appellant got out of the SUV and followed her, walking “very 

harshly” toward her. The complainant stated that she tried to go back inside the 

house because appellant was “very violent” and she “needed to get out of [D]odge.” 

When the complainant was halfway inside the door, she kind of fell down to her 

knees, and appellant “physically made contact with” her. Appellant hit the 

complainant on the left side of her face next to her eye with his fist. Her glasses 

broke “into [her] face.” The complainant then “blacked out” and was unconscious. 

When she woke up, she “was in blood.” There was blood on the floor, and her hair 

felt wet. The complainant crawled to her cellular telephone and called for 

emergency assistance.

As to her injuries, the complainant testified that appellant broke two bones 

around her eye and tore her right ear off. Appellant also stomped on her back and 

broke the complainant’s teeth. The complainant lost a “bit of hearing” in her ear,
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and it had to be “stitch[ed] . . . back” on “all the way.” She had surgery to repair her 

eye, and her facial bones were replaced with titanium plates to hold her eye in place.

The complainant stated that she never threatened appellant with the shears,

and she never tried to poke him or cut him with them. She never “brandish[ed] them 

toward” appellant, and she never told appellant that she was going to cut him or 

shoot him. She never went toward appellant, and she never threatened to hurt him. 

The complainant did not touch appellant’s SUV. She also did not say anything to 

appellant when she cut the extension cord or the water hose, and she did not say 

anything to appellant after she did it. The complainant was walking away from 

appellant when she was hit by appellant in the face. She did not recall “fighting 

back” after she was hit.

Brenham Police Department Officer A. Guerra testified that on October 20, 

2020, she responded to a call for emergency assistance at 300 Barbee Street. When 

Guerra arrived, she saw a single-story home and an SUV parked “on the side.” She 

went inside the home and saw the complainant with extensive injuries to her face. 

Guerra noted that part of the complainant’s ear had been separated from her head, 

and it looked like “a piece of her scalp was hanging off of her head.” The 

complainant also had bruising on her right shoulder.

When Officer Guerra went back outside the home, she saw appellant walking 

down the street toward her. Appellant was on his cellular telephone. When Guerra 
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asked appellant what had happened, he stated that the complainant “had cut the 

extension cord that was providing power to his [SUV]” and the complainant had 

“pointed the [shears] at him and threatened him.” According to appellant, he then 

went into “fight or flight” mentality and “flipped out” because he felt threatened. 

(Internal quotations omitted.) Appellant told Guerra that he punched the 

complainant multiple times. Guerra noted that she saw a “cut extension cord” at the 

property, which was “coming from the house and . . . was going into” appellant’s 

SUV.

Officer Guerra further testified that she also spoke to the complainant October 

20, 2020, and the complainant stated that she had “cut the extension cord because 

she ha[d] the right to because she pa[id] all the bills.” After she cut the extension

cord, appellant “started cussing at her,” and she walked toward the house. According 

to the complainant, appellant “followed her and started hitting her from behind, and 

she lost consciousness.” The complainant reported that appellant had “struck her 

multiple times.” When Guerra asked the complainant “if she had ever pointed the 

[shears] at [appellant] or threatened him,” the complainant said “no, she didn’t point 

the [shears] at him, and she said no, she didn’t threaten him.” The complainant’s 

injuries were consistent with appellant punching her.

Melissa Fleeting, a forensic nurse at a hospital in Temple, Texas, testified that 

she was trained to care for people who had been assaulted. On October 20, 2020, 
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while working, she evaluated the complainant at the hospital. As to the 

complainant’s injuries, Fleeting stated that the complainant had an ear laceration and 

bruising around her eye. She also had multiple bruises on her collarbone, chest, 

lower back, and hands. She had abrasions on her arms. The complainant had a 

subconjunctival hemorrhage, meaning that her eye was completely bruised or 

reddened. And the complainant had an orbital wall fracture and an orbital floor 

fracture. A person with an orbital wall fracture or an orbital floor fracture has “a 

high chance of losing [an] eye” or “having disfigurement.” That type of injury can

cause “permanent loss” of an eye. A person usually suffers an orbital floor fracture 

when something hits the eye with a lot of force, such as a baseball or a fist.

According to Fleeting, the complainant reported that “she was in the process 

of going into her house,” when appellant “walked up to her[] [and] punched her in 

the face.” She then fell down and did not remembered what happened after that. 

Fleeting asked the complainant if she was unconscious, and the complainant 

confirmed that she was unconscious. Fleeting did not see any evidence that 

suggested that the complainant had hit anyone—the complainant did not have any

“busted knuckles or broken fingers.”

Fleeting testified that the complainant later had surgery to “put in a titanium 

mesh to hold all of the fractured pieces” around her eye together and to “hold her 

eye up.”
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Appellant testified that he previously lived at 300 Barbee Street “[o]n and off 

for five years.” Benita, his mother, owned the home. Benita had given appellant 

permission to stay on the property. On October 20, 2020, he was living in his SUV 

at 300 Barbee Street. The SUV was not operational, and it was parked in the 

driveway. Appellant stated that he lived in the SUV because he and the complainant 

did not get along.

Appellant further testified that he had an extension cord that ran from the 

“washroom on the side of the house” to his SUV so that he had electricity in the 

SUV. Appellant also had a water hose that was “plugged into” a waterspout in the 

front of the house that ran to his SUV. Appellant received electricity and water from 

the house, but he was not contributing to paying for those things because Benita told 

him not to do so.

According to appellant, on October 20, 2020, while appellant was watching a

show on his cellular telephone, the complainant came out of the house and cut the 

extension cord. The complainant “looked like she had been drinking,” and “[s]he 

was belligerent.” She was “acting erratic” and angry. Appellant then got out of his 

SUV and asked the complainant “what she was doing.” Appellant told the 

complainant that he was “fixing to call [his] mother” because she would not “leave 

[him] alone,” and the complainant “started walking back toward[] the house,” 

“saying things.” Appellant called Benita, while the complainant was “pacing in the 
8

yard” with the shears in her hand and smoking. When Benita told appellant to give 

the complainant the cellular telephone, the complainant “got threatening” and 

“moved toward[] [appellant] with the [shears].” The complainant had the shears “on 

her side” and was “moving in a threatening manner.” “Her posture started to change 

as she was advancing toward[] [appellant] saying her threats.” The complainant was 

in “an attack position,” and appellant “took it as a threat, a real threat.” Appellant 

stated that the shears the complainant had in her hand were very sharp, and he felt 

that the complainant was going to “try to attack [him] and try to stab [him] to death.” 

The complainant told appellant that “she would stab [him] and finish the job that 

another tried to do.”

Appellant further testified that when the complainant “threatened to also grab 

her gun,” he “struck her three times.” He punched her in the side of her face with a 

closed fist and slapped her with an open hand on the side of her face. After appellant 

slapped the complainant, she fell down. Appellant hit the complainant multiple 

times because he thought she was going to get her firearm. After appellant “stepped 

on” the complainant’s face, “her whole body went limp.” Appellant stated that he 

was “trying to incapacitate an aggressor.” At that point, the complainant had 

dropped the shears, and appellant walked away while the complainant “laid there”

unconscious.
9

Appellant noted that he had previously been stabbed and the complainant that 

day reminded him of the person who had previously stabbed him. He believed that 

he was going to be “stabbed or cut” by the complainant. He was afraid for his life.

Appellant also testified that he caused the complainant’s injuries, and he knew 

that he had punched her, slapped her, and stomped on her face. Appellant further 

stated that the complainant had “made it all the way back to [the] door” to the house 

before appellant made any physical contact with her, and he got out of his SUV and 

followed her back toward the house. The shears hit the complainant’s face, which 

is how her ear was cut. Appellant did not see the complainant’s firearm that day.

Benita testified that appellant is her son and the complainant is her sister and 

appellant’s aunt. Benita stated that the complainant was not a truthful person. Benita 

testified that she owned the home at 300 Barbee Street.

According to Benita, on October 20, 2020, appellant and the complainant 

were both living at 300 Barbee Street. The complainant lived in the house, and 

appellant lived in his SUV in the driveway. Benita was not at the home on October 

20, 2020, but she was “on the phone with [appellant] when [the incident] took place.” 

Appellant had called her that day, and she heard a confrontation between appellant 

and the complainant.
10

Right to Present Complete Defense

In his sole issue, appellant argues that the trial court erred in not admitting 

certain defensive evidence because the trial court’s rulings prevented appellant from 

“presenting a complete defense.” See U.S. CONST. amends. VI, XIV.

A criminal defendant’s constitutional right to a meaningful opportunity to 

present a complete defense is grounded in the Fourteenth Amendment’s Due Process 

Clause and the Sixth Amendment. See U.S. CONST. amends. VI, XIV; Anderson v. 

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). However, “[e]rroneous 

evidentiary rulings rarely rise to the level of denying the fundamental constitutional 

right[] to present a meaningful defense.” Potier v. State, 68 S.W.3d 657, 663 (Tex. 

Crim. App. 2002); see also Harper v. State, 540 S.W.3d 223, 234 (Tex. App.—

Houston [1st Dist.] 2018, pet. ref’d). A trial court’s exclusion of evidence may rise 

to the level of a constitutional violation if the ruling excludes otherwise relevant and 

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

effectively precludes the defendant from presenting a defense.” Wiley v. State, 74 

S.W.3d 399, 405 (Tex. Crim. App. 2002) (internal quotations omitted). The fact that 

a defendant was unable to present his case to the extent and in the form he desired 

does not rise to constitutional error if he was not prevented from presenting the 

substance of his defense to the trier of fact. See Potier, 68 S.W.3d at 666; see also 

Harris v. State, 152 S.W.3d 786, 794 (Tex. App.—Houston [1st Dist.] 2004, pet. 
11

ref’d) (“A defendant’s right to present relevant evidence is not unlimited, but rather 

subject to reasonable restrictions.” (internal quotations omitted)).

Appellant complains that the trial court erroneously sustained the State’s 

objections to certain portions of his testimony and Benita’s testimony, and the trial 

court erroneously sustained the State’s objections to Defendant’s Exhibits 2, 3, and 

4 and did not admit them into evidence. Specifically, appellant complains about the 

following rulings by the trial court.

Ruling 1:

[Appellant’s counsel]: . . . Where did [the complainant]

come from?

[Appellant]: She came from the front door.

[Appellant’s counsel]: And where did she go?

[Appellant]: She went into the middle, up 

into the driveway and close 

toward[] the door, and cut my 

power cord, complaining 

that . . . I didn’t take the trash 

out.

[Appellant’s counsel]: Okay. What else was she saying 

to you?

[Appellant]: So she was telling me --

[State]: Judge, I’m going to object to 

hearsay as to what [the 

complainant] said to him. She 

has testified and been subject to 
12

cross-examination, so anything 

he says that she said is hearsay.

[Appellant’s counsel]: Judge, the witness has testified 

to what she said and what he 

said, and it’s only fair that he 

gets to say his side of the story. 

I mean, it’s not hearsay; she’s 

subject to cross-examination for 

anything that he said -- or she 

said.

. . . .

The Court: I’m sustaining his objection as 

to hearsay, yes.

Ruling 2:

[Appellant’s counsel]: Okay. And so you call [Benita]. 

Did she get on the phone?

[Appellant]: Yes, sir.

[Appellant’s counsel]: Did you explain to her what was 

going on?

[Appellant]: Yes, sir.

[Appellant’s counsel]: All right. At that point where 

was [the complainant]? Where 

was she?

[Appellant]: She was standing, pacing in the 

yard with the -- she had the 

[shears] in her hand. She was 

smoking a cigarette. We’re not 

allowed to smoke in the house.
13

[Appellant’s counsel]: Okay. And then what happened 

at that point?

[Appellant]: My mother told me to give her 

the phone, so I walked up to give 

her the phone, and she was like: 

I don’t want to talk to her. I run 

this. I --

[State]: Objection, Your Honor; it’s still 

hearsay.

[Appellant’s counsel]: Again, Your Honor, she was 

allowed to testify to what 

happened.

The Court: Sustained.

Ruling 3:

[Appellant’s counsel]: . . . I’m going to show you what 

we have marked as Defendant’s 

Exhibit 3, 2, and 4. Do you see 

those numbers there?

[Appellant]: Yes, sir.

[Appellant’s counsel]: Okay. Do you recognize what 

these documents are?

[Appellant]: Yes, sir.

[Appellant’s counsel]: These are photographs; is that 

correct?

[Appellant]: Yes, sir.

[Appellant’s counsel]: And these are photographs that 

were taken of you; is that 

correct?
14

[Appellant]: Yes, sir.

[Appellant’s counsel]: Did you take these 

photographs?

[Appellant]: No, sir.

[Appellant’s counsel]: You were present when they 

were taken, obviously?

[Appellant]: Yes, sir.

[Appellant’s counsel]: Because they are of you?

[Appellant]: Yes, sir.

[Appellant’s counsel]: Do these photographs 

accurately and correctly depict 

the scene as it existed when 

these photographs were taken?

[Appellant]: Yes, sir.

[Appellant’s counsel]: Your Honor, I would offer 

Defendant’s Exhibits 2, 3, and 4 

into evidence.

[State]: Judge, I’m going to object to 

relevance. These show injuries 

from, presumably, [a] previous 

assault and have no bearing on 

our case.

[Appellant’s counsel]: And Judge, I realize that they 

are from a different case, but we 

have spent quite some time 

discussing that case. There was 

no objection to that case. I 

believe it’s relevant to the fact 
15

that [appellant’s] in a very 

unique position of knowing 

what being assaulted by a knife 

is, and I believe these pictures 

are a good depiction of the fear 

that this man has discussed and 

the concerns that he had, like 

I’m quite sure no one else in this 

courtroom has ever 

experienced, and that’s what I 

would offer them for.

The Court: The objection is sustained. I’m 

not going to admit them.

Ruling 4:

[Appellant’s counsel]: . . . At that time on October 20, 

there was an incident that 

occurred with [the complainant] 

and [appellant]; is that correct?

[Benita]: That is correct.

[Appellant’s counsel]: . . . Were you there 

[on] . . . the[] day that that 

happened?

[Benita]: I was not there, but I was on the 

phone with [appellant] when it 

took place.

[Appellant’s counsel]: Okay. But you were not there; 

is that correct?

[Benita]: Not physically, no sir.

[Appellant’s counsel]: Okay. Now, on that day did you 

get a phone call?
16

[Benita]: Yes sir.

[Appellant’s counsel]: From [appellant]?

[Benita]: Yes, sir.

[Appellant’s counsel]: And when you got the phone 

call, what was he -- why did he 

call you?

[Benita]: He called me because he said 

that [the complainant] was 

outside --

[State]: Objection, Your Honor; it’s 

hearsay. What he told her is a 

statement outside --

[Appellant’s counsel]: Judge, this is all in evidence and 

this is an eyewitness to the 

event.

[State]: And in that case it’s just 

repetitious.

The Court: I’m going to have to sustain it as 

to hearsay as to what he told her.

Ruling 5:

[Appellant’s counsel]: You were on the phone with 

[appellant]?

[Benita]: Yes, sir.

[Appellant’s counsel]: Did you . . . hear a 

confrontation?

[Benita]: Yes, sir.
17

[Appellant’s counsel]: Could you tell who the 

confrontation was between?

[Benita]: Yes, sir.

[Appellant’s counsel]: How could you tell who the 

confrontation was between?

[Benita]: I have known [the complainant] 

my whole life and I’ve known 

[appellant] his whole life and I 

know their voices.

[Appellant’s counsel]: You heard their voices?

[Benita]: Yes, sir.

[Appellant’s counsel]: Okay. And from what you 

heard, could you describe to the 

[c]ourt what you heard?

[Benita]: [Appellant] was asking her not 

to keep coming at him.

[State]: Objection, Your Honor; 

hearsay, “what did he say.”

[Appellant’s counsel]: Judge, this is a witness.

The Court: Sustained. It’s a telephone call.

To preserve a complaint for appellate review, a defendant must show that he 

first presented to the trial court a timely request, objection, or motion stating the 

specific grounds for the desired ruling. See TEX. R. APP. P. 33.1(a); Griggs v. State, 

213 S.W.3d 923, 927 (Tex. Crim. App. 2007); Geuder v. State, 115 S.W.3d 11, 13 

(Tex. Crim. App. 2003). Texas Rule of Appellate Procedure 33.1 requires that a 
18

defendant have “stated the grounds for the ruling that [he] sought from the trial court 

with sufficient specificity to make the trial court aware of [his] complaint.” TEX. R.

APP. P. 33.1(a)(1)(A); cf. Carter v. State, No. 01-16-00799-CR, 2017 WL 4682187, 

at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, pet. ref’d) (mem. op., not 

designated for publication) (Confrontation Clause complaint not preserved where 

defendant did not refer to Confrontation Clause as basis for admitting exhibit into 

evidence or as basis for questioning complainant about it). The rationale of rule 33.1 

is that if a complaint is raised before the trial court as soon as error becomes 

foreseeable, it may be addressed and the error possibly corrected or avoided. Moore 

v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009); see also Pena v. State, 285 

S.W.3d 459, 464 (Tex. Crim. App. 2009) (it is imperative to avoid forfeiting 

complaint on appeal that defendant “let the trial [court] know what he wants, why 

he thinks he is entitled to it, and to do so clearly enough for the [trial court] to 

understand him at a time when the [court] is in the proper position to do something 

about it” (internal quotations omitted)). Even claims involving constitutional error

must be preserved or they are waived. See Reyna v. State, 168 S.W.3d 173, 176–79

(Tex. Crim. App. 2005) (stating failure to present particular argument to trial court 

in support of admission of excluded evidence waives that argument for appeal);

Holland v. State, 802 S.W.2d 696, 699–700 (Tex. Crim. App. 1991); Briggs v. State, 

789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Harrell v. State, No. 
19

14-08-00028-CR, 2009 WL 5818564, at *6 (Tex. App.—Houston [14th Dist.] Sept. 

1, 2009, pet. ref’d) (mem. op., not designated for publication) (defendant waived 

argument exclusion of hearsay testimony violated defendant’s right to present 

complete defense where defendant did not first present argument to trial court).

Here, appellant never informed the trial court that his constitutional right to 

present a complete defense had been violated by the trial court’s rulings sustaining 

the State’s objections nor did he ever object during trial that the trial court’s rulings

were depriving him of his constitutional right to present a complete defense.2 See 

Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018) (explaining to 

preserve argument that exclusion of defensive evidence violates constitutional 

principles, defendant must state grounds for ruling sought with sufficient specificity 

to make trial court aware of constitutional grounds); Saunders v. State, No. 

03-19-00191-CR, 2021 WL 1031343, at *4 (Tex. App.—Austin Mar. 18, 2021, no 

pet.) (mem. op., not designated) (“While the right to present a complete defense is 

rooted in constitutional protections, . . . even constitutional rights may be 

waived . . . .”). Because appellant did not argue at trial that the trial court’s rulings 

denying the admission of certain defensive evidence were precluding appellant from 

“presenting a complete defense,” we hold that he did not preserve his sole issue on 

2 A defendant also fails to preserve error when the contention urged on appeal does 

not match with the specific complaint made in the trial court. Lovill v. State, 319 

S.W.3d 687, 691–92 (Tex. Crim. App. 2009).
20

appeal for our review. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.

2009) (recognizing deprivation of meaningful opportunity to present complete 

defense is right subject to forfeiture); Broxton v. State, 909 S.W.2d 912, 918 (Tex.

Crim. App. 1995) (complaint on appeal that defendant was denied right to present 

defense and right to due process or course of law did not correspond to objection 

made at trial, and thus defendant did not preserve complaint); Saunders, 2021 WL 

1031343, at *4 (“At trial, [defendant never] . . . objected to [the evidence’s] 

exclusion on the ground that his constitutional right to present a complete defense 

was compromised by the exclusion of the evidence. Because [defendant] did not 

articulate that his right to present a complete defense supported (or required) the 

admission of the evidence . . . , the trial court never had the opportunity to rule on 

this rationale.”); Houston v. State, No. 05-11-00016-CR, 2012 WL 2511588, at *1 

(Tex. App.—Dallas July 2, 2012, pet. ref’d) (mem. op., not designated for 

publication) (defendant did not preserve complaint trial court’s rulings sustaining 

State’s objection deprived him of right to present complete defense where defendant 

did not object or advise trial court that his constitutional right to present complete 

defense had been violated); Menjivar v. State, No. 01-10-00132-CR, 2011 WL 

2183735, at *1 (Tex. App.—Houston [1st Dist.] June 2, 2011, no pet.) (mem. op., 

not designated for publication) (defendant waived argument that trial court violated 

constitutional right to present complete defense because State’s relevancy objections 
21

were countered with arguments based on rules of evidence, not arguments based on 

violation of defendant’s constitutional right to present complete defense).

Conclusion

We affirm the judgment of the trial court.

Julie Countiss

Justice

Panel consists of Justices Landau, Countiss, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).