                               NUMBER 13-16-00245-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG

CHARLES GARZA,                                                                       Appellant,

                                                v.

THE STATE OF TEXAS,                                                                  Appellee.


                      On appeal from the 347th District Court
                            of Nueces County, Texas.



           MEMORANDUM OPINION ON REHEARING1
             Before Justices Benavides, Longoria, and Hinojosa
           Memorandum Opinion on Rehearing by Justice Longoria

       Appellant Charles Garza appeals his conviction for possessing, with intent to

deliver, between four and 200 grams of methamphetamine, a first-degree felony. See



       1  Garza filed a motion for rehearing. See TEX. R. APP. P. 49.7. On the panel’s own motion it
withdraws its initial memorandum opinion and judgment and replaces them with the instant memorandum
opinion and accompanying judgment. Garza’s motion for rehearing is denied.
TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (d) (West, Westlaw though 2017 1st

C.S.).    After finding that appellant is a habitual felony offender, the jury sentenced

appellant to forty years’ confinement in the Institutional Division of the Texas Department

of Criminal Justice. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw though 2017

1st C.S.). In six issues appellant argues: (1) the trial court erred by admitting discovery

and a judgment from a civil asset forfeiture case; (2) the trial court erred by admitting the

audio statement of a testifying witness; (3) the trial court erred by re-opening evidence

after the jury began deliberating; (4) the State violated appellant’s due process rights by

suppressing favorable, material evidence; (5) the trial court submitted an erroneous

punishment jury charge, resulting in a sentence unsupported by necessary findings; and

(6) the trial court proceedings were infected with cumulative error, warranting a new trial.

We affirm.

                                   I.     BACKGROUND

         In October 2013, Corpus Christi Police Department SWAT officers executed a no-

knock warrant at the home of Henry Velasquez.             During the search, the officers

encountered several individuals in different areas of the home. Appellant was located in

one of the bedrooms with Rodolfo “Rudy” Ramos and Richard Ambriz. In the bedroom

where appellant was located, the officers found a safe on the bed which contained

approximately 27 grams of methamphetamine, a box of sandwich bags, a spoon, a light

bulb, some change, and a digital scale. Officers were told by Ramos that the safe

belonged to appellant. Appellant previously lived in the home and the room he was in

was his former bedroom. Officers ultimately linked the safe and its contents to appellant.

Velasquez and his girlfriend were located in another bedroom. In that room there was a



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drawer full of money and a shoe box containing 172.84 grams of cocaine. Velasquez

pleaded guilty to the possession of the cocaine and received a fifteen-year sentence. He

testified that he was not selling the methamphetamine and the safe did not belong to him.

       Appellant was charged by indictment with first-degree possession of a controlled

substance with intent to deliver. See TEX. HEALTH & SAFETY CODE Ann. § 481.112 (a), (d).

The State also gave notice that it would seek to punish as him a habitual felony offender.

See TEX. PENAL CODE ANN. § 12.42(d). Count 1 of the indictment alleged that on or about

October 3, 2013, in Nueces County, Texas, appellant did then and there knowingly

possess, with intent to deliver, a controlled substance, namely, cocaine, in an amount of

four grams or more but less than 200 grams; and count 2 of the indictment alleged that

appellant, on or about October 3, 2013, in Nueces County, Texas, did then and there

knowingly   possess,    with         intent   to   deliver,   a   controlled   substance,   namely,

methamphetamine, in an amount of four grams or more but less than 200 grams.

       The State moved to dismiss the first count of the indictment.                 Subsequently

appellant was found guilty of the second count of the indictment. The jury then found that

appellant was a habitual felony offender and assessed his punishment at forty years’

imprisonment. This appeal followed.

                               II.       ADMISSIBILITY OF EVIDENCE

       By his first two issues, appellant contends that the trial court erred by admitting

inadmissible evidence, specifically: (1) discovery and a judgment from a civil asset

forfeiture case; and (2) the audio statement of a testifying witness.

A.     Standard of Review




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       An appellate court reviewing a trial court’s ruling on the admissibility of evidence

must utilize an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.

1999). In other words, the appellate court must uphold the trial court’s ruling if it was

within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542; Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the appellate court

must review the trial court’s ruling in light of what was before the trial court at the time the

ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998); Hardesty

v. State, 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984).

B.     Documents from Appellant’s Civil Asset Forfeiture Case

       Appellant argues that the trial court erred by admitting the agreed judgment and

additional documents from his civil asset forfeiture case on the grounds that the

documents were irrelevant, prejudicial, settlement negotiations or plea discussions, and

unauthenticated hearsay.

       1.      Settlement Negotiations

       Appellant argues that the exhibit containing the civil asset forfeiture documents,

specifically the agreed judgment, was inadmissible as a settlement negotiation or plea

discussion. See TEX. R. EVID. R. 408, 410.

       Rule 408 of the Texas Rules of Evidence states:

       (a) Prohibited Uses. Evidence of the following is not admissible either to
           prove or disprove the validity or amount of a disputed claim:

            (1) furnishing, promising, or offering–or accepting, promising to accept,
                or offering to accept–a valuable consideration in compromising or
                attempting to compromise the claim; and




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             (2) conduct or statements made during compromise negotiations about
                 the claim.

        (b) Permissible Uses. The court may admit this evidence for another
            purpose, such as proving a party’s or witness’s bias, prejudice, or
            interest, negating a contention of undue delay, or proving an effort to
            obstruct a criminal investigation or prosecution.

Id. Here, the State’s use of the evidence was to establish a link between the appellant

and the recovered money. Specifically, they were corroborating the testifying officer’s

statement that the money was found on appellant’s person. Their intention, therefore,

was to use the forfeiture documents, which were created to facilitate the agreed judgment,

to prove the validity of a disputed claim, which is specifically prohibited under rule 408.

See TEX. R. EVID. R. 408; see also Casamento v. State, No. 05-91-00294-CR, 1992 WL

224567, at *4 (Tex. App.—Dallas Sept. 11, 1992, no pet.) (mem. op. not designated for

publication) (finding that the use of a civil forfeiture judgment was admissible in criminal

case for purposes of impeachment where the defendant took the stand and testified that

he had no association to the money involved in the forfeiture proceeding). Therefore, the

trial court abused its discretion in admitting the civil forfeiture documents. 2

        2.      Harm Analysis

        Because we conclude that the trial court abused its discretion, we must now

evaluate for harm. See TEX. R. APP. P. 44.2. Generally, if the trial court’s ruling merely

offends the rules of evidence, the erroneous admission or exclusion of evidence is non-

constitutional error for purposes of a harm analysis. See Celis v. State, 354 S.W.3d 7,

38 (Tex. App.—Corpus Christi 2011), aff’d 416 S.W.3d 419 (Tex. Crim. App. 2013). Non-



        2Having found error under rule 408, we need not address appellant’s arguments that the exhibit
was inadmissible as irrelevant, more prejudicial than probative, or hearsay as the analysis for harm is the
same. See TEX. R. APP. P. 44.2.

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constitutional errors that do not affect substantial rights must be disregarded. TEX. R.

APP. P. 44.2(b). Inadmissible evidence can be rendered harmless if other evidence at

trial is admitted without objection and it proves the same fact that the inadmissible

evidence sought to prove. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.

1986) (en banc). The State sought to use the inadmissible civil forfeiture documents to

establish a link between appellant and the contraband, specifically to show that the cash

that was seized belonged to appellant. Appellant argues that the jury may have taken the

documents as an admission of guilt because the documents state that the money was

his. Appellant argues that his defense strategy focused on the lack of links between

himself and the contraband. The information in exhibit 60 allowed the State to present

the link between appellant and the contraband as an admission of guilt by appellant.

Appellant’s argument that the documents were inadmissible states that admission of the

exhibit “undoubtedly operated as an admission of guilt in the jury’s eyes, distinguishing

[appellant] from the other two potential defendants and resulting in a guilty verdict.”

       The State, however, brought this same information in through its testifying officer

without objection:

       Prosecutor:          All right. Let’s talk about this particular case. During
                            this search that you were conducting after the search
                            warrant was issued, did you happen to be present
                            when the defendant Charles Garza’s person was
                            searched?

       Officer:             Yes.

       Prosecutor:          Okay. And what was found on this man’s person?

       Officer:             A little over $1600 in U.S. currency.




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       In a hearing outside the presence of the jury, appellant objected to Officer Larock’s

testimony and his objection was overruled; no running objection to the evidence was

requested nor received. Subsequently, when the testimony was presented to the jury,

appellant did not object. See Clay v. State, 361 S.W.3d 762, 766–67 (Tex. App.—Fort

Worth 2012, no pet.) (holding that where appellant failed to obtain a running objection to

the evidence and did not object to the evidence each time it was offered, he did not

preserve error). “It is defense counsel’s responsibility to object every time allegedly

inadmissible evidence is offered, and when counsel objects to certain inadmissible

testimony, but then permits similar evidence to come in without objection, the complaint

is deemed cured.” Brown v. State, 692 S.W.2d 146, 151 (Tex. App.—Houston [1st Dist.]

1985), aff’d, 757 S.W.2d 739 (Tex. Crim. App. 1988).

       Additionally, appellant was able to cross-examine Officer Larock who presented

the testimony linking him to the contraband. What weight to give contradictory testimonial

evidence is within the sole province of the jury because it turns on an evaluation of

credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App.

1997). Additionally, cross-examination of the officer by appellant’s counsel elicited that

there was a civil forfeiture proceeding prior to the State introducing the exhibit.

       Appellant does not address any of the specific documents within the exhibit that

would create harm aside from the general conclusion that the jury likely viewed the exhibit

as an admission of guilt by linking appellant to the contraband. Appellant states that the

exhibit could be viewed as an implied admission of guilt, but aside from linking him to the




                                              7
contraband, he does not explain or show how the exhibit would create such an

impression. 3

        Accordingly, the erroneous admission of the document was harmless and did not

constitute reversible error. See id. Appellant’s first issue is overruled.

C.      Audio Statement

        By his second issue, appellant argues that the trial court erred in admitting the

audio statement of co-defendant Ramos.

        1.      Waiver

        The State argues that appellant waived his argument as to the admissibility of the

audio statement of Ramos when appellant offered it into evidence at trial. In order to

preserve error for appellate review, the record must show that a complaint was made to

the trial court by an objection that stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware of

the complaint, unless the specific grounds were apparent from the context. TEX. R. APP.

P. 33.1(a); Aguilera v. State, 75 S.W.3d 60, 65 (Tex. App.—San Antonio 2002, pet. ref’d).

To preserve error for review, a timely and specific objection must be made and followed

by an adverse ruling. Aguilera, 75 S.W.3d at 65.; Turner v. State, 805 S.W.2d 423, 431

(Tex. Crim. App. 1991). A party must object every time allegedly inadmissible testimony

is offered in order to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.




        3  On original submission, we focused on the exhibit being a link between the appellant and the
contraband. In appellant’s motion for rehearing, he now contends that the specific documents within the
exhibit, namely the “Agreed Judgment,” could be evaluated as an admission of guilt by the jury. Upon
further review, appellant’s argument in his appellate brief on this issue relates specifically to the exhibit
creating the link between himself and the contraband, and thus discrediting his theory of defense. Appellant
maintained his general objection to the exhibit and then specifically argued that the document linked him to
the contraband and thus could be viewed as an admission of guilt, therefore our analysis remains the same.

                                                     8
App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Scaggs v.

State, 18 S.W.3d 277, 291 (Tex. App.—Austin 2000, pet. ref’d).

       Here, appellant initially objected to the State using the recorded statement of

Ramos; however, appellant was ultimately the party who entered the redacted recording

into evidence. While the trial court had already ruled on the admissibility of the recording

in a hearing outside the presence of the jury, by offering and moving the recording into

evidence during his cross-examination of Ramos, appellant did not preserve error on the

argument of admissibility of said evidence. See Hudson, 675 S.W.2d at 511 (stating that

“it is well settled that an error in admission of evidence is cured where the same evidence

comes in elsewhere without objection; defense counsel must object every time allegedly

inadmissible evidence is offered”); see also Bryant v. State, 534 S.W.3d 471, 473 (Tex.

App.—Corpus Christi 2017, pet. ref’d) (quoting Ohler v. United States, 529 U.S. 753, 760

(2000) “[A] defendant who preemptively introduces evidence of a prior conviction on direct

examination may not on appeal claim that the admission of such evidence was error.”).

We conclude that appellant did not preserve error. See id. Appellant’s second issue is

overruled.

                              III.   REOPENING OF EVIDENCE

       By his third issue, appellant argues that the trial court erred by reopening evidence

after the jury began deliberating.

A.     Invited Error

       Appellant contends that the reopening of evidence was a violation of article 36.02

and as such should be held to be an abuse of discretion by the trial court. See TEX. CRIM.

PROC. CODE ANN. § 36.02 (West, Westlaw through 2017 1st C.S.) (“The court shall allow



                                             9
testimony to be introduced at any time before the argument of a cause is concluded, if it

appears that it is necessary to a due administration of justice.”). The State, however,

argues that appellant invited the error of which he now complains. See Woodall v. State,

336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (stating that “[t]he law of invited error

provides that a party cannot take advantage of an error that it invited or caused, even if

such error is fundamental.”).

       During the punishment phase of appellant’s trial, the State elicited testimony from

an officer about a prior offense committed by appellant. After the close of evidence, the

State learned that a co-defendant in appellant’s prior offense claimed responsibility for

the offense. The State brought this information to the attention of appellant’s counsel and

the trial court. Appellant’s counsel requested that the jury be informed of the new

information. The jury was brought in and counsel for the State explained the new

information. Appellant sought to have the information given to the jury and cannot now

complain that it was error to do so. See id. Appellant’s third issue is overruled.

                      IV.       SUPPRESSION OF FAVORABLE EVIDENCE

       By his fourth issue, appellant contends that the state suppressed favorable

evidence in violation of his due process rights. See Brady v. Maryland, 373 U.S. 83

(1963).

A.     Applicable Law

       Under United States Supreme Court precedent beginning with Brady, the State is

required to disclose evidence known to it that is favorable or material to a defendant’s

guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527

U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory



                                            10
evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or

bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87, 83 S.Ct. 1194.

       A defendant must show the following requirements to establish a Brady violation:

(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the

defendant; and (3) the suppressed evidence is material. Strickler, 527 U.S. at 281–82;

accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence

for these purposes is any evidence that, if disclosed and used effectively, “may make the

difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is

“material” for Brady purposes “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.”   Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal

quotations omitted). A reasonable probability is one that is sufficient to undermine

confidence in the outcome. Id.

       The materiality prong incorporates a requirement that the defendant is prejudiced

by the State’s failure to disclose the evidence.       Harm, 183 S.W.3d at 406. When

information is disclosed mid-trial, the prejudice inquiry involves determining whether the

disclosure came in time to make effective use of the information at trial. Little v. State,

991 S.W.2d 864, 866 (Tex. Crim. App. 1999). “If the defendant received the material in

time to use it effectively at trial, his conviction should not be reversed just because it was

not disclosed as early as it might have and should have been.” Id.

B.     Arguments of the Parties

       Appellant argues that the State presented misleading evidence by suppressing

favorable, material evidence. Appellant argues that the State suppressed exculpatory



                                             11
evidence that another individual was responsible for a prior criminal act that the State

presented to the jury during the punishment phase of his trial. As previously discussed,

when the State learned of the information, it was presented to appellant’s counsel and

the trial court. Appellant’s counsel requested the information be relayed to the jury, thus,

reopening evidence during deliberations. Appellant’s request was granted and the jury

was presented with the new information. Appellant now argues on appeal that the State

“affirmatively presented prejudicial evidence while suppressing the full story.”

       The State responds that appellant failed to preserve the Brady complaint for review

because he failed to make any objection, nor did he move for a mistrial. Further, the

State notes that there was no mention of Brady in a motion for new trial.

C.     Preservation of Error

       Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate

Procedure, which provides that, to preserve error, a complaint must be “made to the trial

court by a timely request, objection, or motion that . . . state[s] the grounds for the ruling

that the complaining party sought from the trial court with sufficient specificity to make the

trial court aware of the complaint, unless the specific grounds were apparent from the

context.” TEX. R. APP. P. 33.1(a)(1)(A). The record must also show that the trial court

“ruled on the request, objection, or motion, either expressly or implicitly” or “refused to

rule on the request, objection, or motion, and the complaining party objected to the

refusal.” Id. R. 33.1(a)(2).

       In this case, there was no objection made on Brady grounds, or at all, in regard to

the evidence. Appellant’s counsel did not present any argument to the trial court and




                                             12
therefore, cannot now raise the issue on appeal. See id. We conclude appellant’s issue

was not preserved for appeal. Id. We overrule appellant’s fourth issue.

                                 V.     JURY CHARGE ERROR

         By his fifth issue, appellant contends the trial court submitted an erroneous

punishment jury charge by not requiring the jury to make distinct findings about each

alleged enhancement.

A.       Applicable Law

         Courts analyze a jury-charge issue under a two-step process, first deciding

whether there was error in the charge and, if error exists, analyzing the error for harm.

Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The amount of harm

necessary to warrant reversal depends on whether the error was preserved for appeal.

Id. When, as here, the defendant did not object to the jury charge, error is reversible only

if it was egregiously harmful. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App.

2015).

B.       Enhancement Application

         Appellant argues that the jury “did not have the opportunity to distinctly address

the validity of the enhancements after [appellant] challenged the testimony linking him to

the judgments.” Specifically, appellant argues that the trial court combined the finding of

whether or not he was a habitual felony offender within the reiteration of the guilty verdict

and sentence assessment.

         Generally, the factfinder’s decision of what particular sentence to assess is
         a “normative, discretionary function” that does not depend on the resolution
         of specific facts. However, when the State seeks to enhance a defendant’s
         sentence for the primary offense by alleging that a defendant has a prior
         conviction, and the defendant enters a plea of not true, the factfinder must
         decide whether the State has sustained its burden by entering a finding that

                                              13
       the enhancement allegation is either true or not true. In essence, the
       assessment of punishment involves two types of deliberations when the
       State has alleged, and the defendant has entered a plea of not true to, a
       prior conviction used for enhancement purposes. First, the factfinder
       engages in a deductive, discrete fact-finding process to determine whether
       the State has proved that the enhancement allegation is true. And second,
       considering all of the evidence admitted during the guilt and punishment
       phases, the factfinder engages in a normative process that is uninhibited by
       any required, specific fact determination to decide what particular
       punishment to assess within the range prescribed by law.

Jordan v. State, 256 S.W.3d 286, 291–92 (Tex. Crim. App. 2008) (citations omitted).

Here, the punishment charge specifically instructed the jurors regarding the enhancement

charges, the finding of a person to be habitual felony offender, and the sentencing ranges.

The verdict form then allows for three possible sentencing options: (1) habitual felony

offender punishment; (2) repeat felony offender punishment; or (3) first degree felony

punishment. The jury was instructed that it was their duty “to determine whether the

Defendant is a Habitual Felony Offender” and that their determination must be beyond a

reasonable doubt. The jury was specifically instructed to make a determination regarding

appellant’s habitual felony offender status and then to apply such determination to their

sentencing. See id. at 293. We conclude there was no error in the punishment charge

and verdict form. See Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)

(stating that reviewing courts “must examine the charge as a whole instead of a series of

isolated and unrelated statements.”). Appellant’s fifth issue is overruled.

                                VI.    CUMULATIVE ERROR

       In his final issue, appellant argues that the “proceedings are infected with

cumulative error, warranting a new trial.” Listing each of his first five issues, appellant

states that he has shown that there were multiple irregularities and errors in his trial, and

therefore the integrity of the trial as a whole should be called into question. We need not

                                             14
decide this issue, however, because appellant’s conclusory statement that the cumulative

effect of all his alleged errors warrants reversal is insufficient to maintain his burden to

adequately brief the point of error. See TEX. R. APP. P. 38.1(i); Linney v. State, 401

S.W.3d 764, 782–83 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (overruling as

inadequately briefed appellant’s conclusory contention that cumulative harm affected his

substantial rights). Appellant’s sixth issue is overruled.

                                    VII.   CONCLUSION

       The judgment of the trial court is affirmed.

                                                               NORA L. LONGORIA
                                                               Justice


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

Delivered and filed the
7th day of February, 2019.




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