                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-14-00089-CR
                              ____________________

                          JOSHUA GLAZE, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________        ______________________

                On Appeal from the 356th District Court
                        Hardin County, Texas
                        Trial Cause No. 22030
____________________________________________                          ____________

                          MEMORANDUM OPINION

      A jury convicted Joshua Glaze of murder and sentenced Glaze to life in

prison. In one appellate issue, Glaze challenges the trial court’s refusal to admit a

toxicology report into evidence at trial. We affirm the trial court’s judgment.

      “A trial court has broad discretion in determining the admissibility of the

evidence[.]” Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). We

review a trial court’s evidentiary rulings for abuse of discretion. Oprean v. State,

201 S.W.3d 724, 726 (Tex. Crim. App. 2006). “Error may not be predicated upon a

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ruling which admits or excludes evidence unless a substantial right of the party is

affected[.]” Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b).

      The medical examiner testified that the victim died of a gunshot wound to

the back of the neck. On cross-examination, Glaze sought to admit a toxicology

report into evidence. The State argued that the report was irrelevant to the victim’s

cause of death or to who shot the victim and was more prejudicial than probative.

Glaze argued that the report showed that the victim ingested marihuana before the

murder and was, thus, relevant to the surviving witnesses’ veracity regarding the

details surrounding the murder. The trial court excluded the report. During a

subsequent bill of exception, Glaze re-urged his contention that the report called

the surviving witnesses’ veracity into question. The trial court found that any

probative value of the evidence was outweighed by the danger of unfair prejudice

and confusion of the issues.

      Even relevant evidence may be excluded when “its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Tex. R. Evid. 403. “‘Unfair prejudice’ refers

to a tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

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App. 2007). “‘Confusion of the issues[]’ refers to a tendency to confuse or distract

the jury from the main issues in the case[]” and lead to consideration of factual

disputes that are only tangentially related to the issues in the case. Id. at 880; Wiley

v. State, 74 S.W.3d 399, 407 n.21 (Tex. Crim. App. 2002).

      According to the record, the victim was with two friends, Horace Theal and

Briana Herring, at the time of the murder. Only Theal testified at trial. Glaze

argues that Theal failed to disclose that the victim had used drugs before the

murder; thus, Glaze maintains that Theal might have concealed other information

if he failed to disclose any criminal acts by the victim, Theal, or Herring. Glaze

contends that the toxicology report was necessary to allow him to challenge

Theal’s credibility. Even without the report, however, questions asked of a witness

on cross-examination, which may have a tendency to affect the witness’s

credibility are considered proper. Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim.

App. 1984). Assuming questions about drug use would have had a tendency to

affect Theal’s credibility, the record does not demonstrate that Glaze attempted to

question Theal about any drug use on the night of the murder.1




      1
       Glaze also complains that the toxicology report creates questions regarding
the evidence, or lack thereof, collected by the State. However, Glaze did not
present this argument at trial. See Tex. R. App. P. 33.1(a).
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      Moreover, the issue before the jury was whether Glaze intentionally or

knowingly caused the victim’s death. See Tex. Penal Code Ann. § 19.02(b)(1)

(West 2011). Evidence that the victim ingested marihuana before the murder is, at

best, tangentially related to whether Glaze murdered the victim, and such evidence

carried with it the danger of the jury making a decision based on emotion or

prejudice against the victim. See Casey, 215 S.W.3d at 879; see also Wiley, 74

S.W.3d at 407 n.21. Accordingly, we conclude that the trial court did not abuse its

discretion by excluding the toxicology report. See Oprean, 201 S.W.3d at 726. We

overrule Glaze’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.

                                               ___________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice

Submitted on November 10, 2014
Opinion Delivered November 19, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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