Opinion filed May 21, 2015




                                               In The


            Eleventh Court of Appeals
                                          ___________

                                    No. 11-13-00162-CR
                                       ___________

                    SANTIAGO LARA JIMENEZ, Appellant
                                                  V.
                         THE STATE OF TEXAS, Appellee


                         On Appeal from the 70th District Court
                                      Ector County, Texas
                               Trial Court Cause No. A-37,360


                          MEMORANDUM OPINION
        The jury convicted Santiago Lara Jimenez of murder, attempted murder, and
aggravated assault with a deadly weapon.1 The jury assessed his punishment at
confinement for a term of sixty years for the offense of murder, at confinement for

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         The grand jury indicted Appellant in Cause No. A-37,360 for the offense of murder and indicted
Appellant in Cause No. A-37,361 for the offenses of attempted murder and aggravated assault with a deadly
weapon. The trial court granted the State’s motion to consolidate the cases for trial. The judgments of
conviction were entered in Cause No. A-37,360.
a term of twenty years for the offense of attempted murder, and at confinement for
a term of ten years for the offense of aggravated assault. The trial court ordered
Appellant’s sentences to run concurrently. Appellant presents two issues for our
review. We affirm.
      Ernest Gilbert Byer Sr. and Ernest Gilbert Byer Jr. (Ernie), the victims in this
case, were Appellant’s neighbors. At the time of the incident made the basis of the
charges in this case, Appellant and the Byers had been engaged in an ongoing dispute
that had lasted for several years. Appellant believed that Ernie had vandalized his
property on multiple occasions. Appellant and Ernie had been in many arguments
and each had called the police on the other.
      The Byers had just returned to Ernie’s home from doing laundry at a nearby
“laundry mat” when Appellant drove into Ernie’s driveway. Ernie got out of the car;
headed toward Appellant; said, “[W]hat do you want?”; and then threw his hands
up. Byer Sr. told police that Ernie wanted to kick Appellant’s “ass” and that Ernie
tried to start a fight. Ernie did not have a weapon. A neighbor testified that she
heard Ernie tell Appellant to get off his property. Then she heard gunshots, and
Ernie fell to the ground. Ernie was a few feet from Appellant; Appellant never got
out of his truck. Appellant shot Ernie in the chest and left buttock and shot Byer Sr.
in his leg, arm, abdomen, and neck. Byer Sr. was able to take cover behind his car,
and he called 9-1-1. After Appellant stopped shooting, he drove home. Byer Sr.
was hospitalized for four days. Ernie died at the scene. The cause of death was a
gunshot wound to the chest; the bullet passed through his heart and grazed his spinal
cord. Ernie was nineteen years old.
      Appellant told police that he had called the police “a hundred times” and that
they did not do anything about it, so he had to do something. Appellant claimed that
he was fearful of the Byers and that he acted in self-defense.


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       In his first issue, Appellant contends that the trial court erred when it granted
the State’s motion in limine in which the State sought to require defense counsel to
request a ruling from the trial court outside the presence of the jury regarding the
admissibility of the alleged bad acts of the victims, including criminal mischief and
drug use. Appellant argues that this restriction prevented him from presenting
evidence that he acted in self-defense. Appellant does not argue that the trial court
excluded evidence that Appellant later offered at trial; he argues only that the trial
court erred when it granted the motion in limine. “From the mere granting of a
motion in limine, it is not possible for the reviewing court to know what, if any,
specific evidence or other matters have been excluded.” Norman v. State, 523
S.W.2d 669, 671 (Tex. Crim. App. 1975). The proper basis for a complaint on
appeal is not that the trial court erred when it granted the State’s motion in limine
but that the trial court erred when it excluded the evidence during trial after
reconsidering its prior ruling. Id. Therefore, Appellant has not presented us with a
reviewable complaint. Furthermore, from our review of the record, we cannot
identify any specific evidence that Appellant requested the trial court to admit but
that the trial court excluded. The court allowed Appellant to present evidence
regarding the vandalism and regarding the victims’ alleged drug use. Appellant’s
first issue is overruled.
       In his second issue, Appellant contends that the trial court erred when it
excluded testimony that, in the past, Ernie had walked around his neighborhood
swinging a sword and had used a sword in Appellant’s presence. However, as the
State points out, evidence that Ernie had swung a sword in the neighborhood was
presented to the jury. Although the trial court initially sustained the State’s objection
to such testimony, the trial court subsequently reconsidered its ruling and allowed
multiple witnesses to testify about Ernie’s sword use. Appellant’s neighbor testified
that approximately two months prior to the shooting, as she and her husband were
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driving down their alley, she saw Ernie swinging the sword. She told her husband
not to drive down the alley because she was afraid something would happen; Ernie
came within ten feet of their car. Although nothing happened, she was scared
enough to call the police and report the incident. Appellant’s brother also testified
that, when he was visiting Appellant one day, he saw Ernie swinging and waving a
sword at Appellant and giving Appellant some problems. He said that Ernie just
stared at Appellant’s house during the incident. Appellant recorded the incident and
called the sheriff’s office. The video, as well as four still pictures from the video,
were admitted into evidence.
        The officers who talked with Appellant at the scene and at the hospital also
testified about Ernie’s sword use. Investigator Javier Levya testified that Appellant
told him that Ernie had attacked him with a sword. Investigator Christina Grissom
testified that Appellant had told her about Ernie’s sword use and that Appellant had
shown her a video, which depicted Ernie on the street with his sword. Grissom was
told that the video had been destroyed, but she did not know why or when; she
believed that it was in the custody of the Ector County Sheriff’s Office when it was
destroyed.2 She also testified that the video was relevant to show the relationship
between Appellant and Ernie; however, the video did not show Ernie threatening
Appellant with the sword. Furthermore, the recordings of Appellant’s statements
were admitted into evidence, and in each video, Appellant discusses Ernie’s sword
use with the officers. In addition, Sergeant Diallo Bass testified that he saw a sword
inside Ernie’s home. Defense counsel also emphasized Ernie’s sword use in his
closing argument to show that Appellant was fearful of Ernie. Because the trial court
ultimately allowed the evidence to be presented to the jury, Appellant has not shown


        2
         Another witness testified that the video was from 2008 and that it was destroyed in July 2010
because there was no suspect and the statute of limitations had run. On appeal, Appellant does not complain
about the destruction of the video.

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that he received an adverse ruling from the trial court. We overrule Appellant’s
second issue.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


May 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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