                             Fourth Court of Appeals
                                    San Antonio, Texas
                               MEMORANDUM OPINION
                                       No. 04-13-00346-CR

                                         Jassen BARNES,
                                             Appellant

                                                v.
                                               The
                                       The STATE of Texas,
                                             Appellee

                    From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011CR9420
                          Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: December 10, 2014

AFFIRMED

           A jury found appellant, Jassen Barnes, guilty of murder and sentenced him to life

imprisonment. In five issues on appeal, appellant asserts (1) the evidence is insufficient to

corroborate the accomplice witness testimony and sustain his conviction, (2) the trial court erred

by admitting prejudicial evidence, (3) the State improperly commented on appellant’s failure to

testify, (4) the trial court erred by denying his motion for new trial, and (5) his spouse’s testimony

should have been excluded. We affirm.
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                                         BACKGROUND

       On July 22, 2011, Justin Thomas and his girlfriend went to the Dietrich Road Apartments

where Thomas lived with his mother. The couple waited in their vehicle for Thomas’s cousin to

arrive. Upon his cousin’s arrival, Thomas exited the vehicle while his girlfriend waited for Thomas

to return. Thomas greeted his cousin and the two conversed briefly. A short time later, Thomas

was seen in a breezeway speaking with a man later identified as appellant. Witnesses then heard

gunshots and saw Thomas running out of the breezeway towards his mother’s apartment. Thomas

was heard yelling, “Call 9-1-1. He shot me.” Thomas collapsed a short distance from where he

was shot and died in his mother’s arms shortly thereafter. Witnesses reported seeing appellant

running from the location where Thomas was shot and driving off in a white Kia with damage on

the rear bumper. Brittney Smiley was later identified as the vehicle’s owner. Appellant was

identified as a suspect, but the police were initially unable to arrest him because he left town. He

was arrested several weeks later after the police learned of his return.

       At trial, the evidence included testimony from a number of witnesses, Smiley’s accomplice

testimony, and forensic evidence. The first witness to testify was Thomas’s girlfriend, Lejoi

Haynes. Haynes testified she was waiting in her car for Thomas to return when Thomas was shot.

Haynes said that immediately prior to hearing gunshots, she saw Thomas speaking with appellant,

who was wearing a blue shirt and had hair she described as a “short afro.” Haynes also testified

she did not actually see the shooting occur or a gun in appellant’s hands; however, she was able to

get a good look at appellant because he stood there a few seconds after the shooting before running

away. She confirmed appellant was the only other person in the immediate vicinity where the

shooting took place and identified appellant as the shooter in a police lineup as well as in court.

       Kesha Hall testified she was at the Dietrich Road Apartments prior to and during the

shooting. Hall stated she saw Smiley sitting with her cousin, Laketa Nation, on the steps of the
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apartment complex before the shooting occurred. Hall testified Smiley was wearing a dress that

day and she was able to see a gun strapped to Smiley’s leg. She also stated she saw appellant two

or three times earlier that day, and described him as having dark skin with a “medium-sized afro,”

approximately two inches in length. Hall identified appellant as the person who shot and killed

Thomas, although she acknowledged appellant looked different in court because he no longer had

hair. After the shooting, Hall saw appellant flee the scene in a white car with damage on the rear

bumper, and she identified Smiley as the vehicle’s owner.

       Laketa Nation testified next. Nation testified she lived at the Dietrich Road Apartments

and was sitting on the steps of the apartment complex when she heard gunshots. Nation identified

appellant as Smiley’s boyfriend. She confirmed appellant was wearing a blue shirt the day of the

shooting and described his hair as “a little afro thing.” Hall testified appellant looked different at

trial because he no longer had hair, but confirmed that she still recognized appellant as the person

wearing the blue shirt the day of the shooting. She also confirmed Smiley had a gun the day of

the shooting, and stated that she did not actually see the shooting occur. Shortly after the shooting,

she saw a white car drive away from the apartments.

       The final non-accomplice witness to testify was Thomas’s cousin, Chastity Walker.

Walker testified she arrived at the Dietrich Road Apartments and was greeted by Thomas in the

parking lot. After a brief conversation, she walked upstairs and left her belongings in her aunt’s

apartment. She then walked outside and stood on the balcony where she heard Thomas speaking

with appellant.    Her description of appellant matched the description given by the other

witnesses—dark skin, blue shirt with a small afro. A few seconds later she heard gunshots, then

heard Thomas yell, “Call 9-1-1. He shot me.” Walker testified she did not see a gun nor the actual

shooting take place. However, she identified appellant as the person who shot Thomas.



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        After receiving immunity from prosecution, the jury also heard testimony from Brittney

Smiley. Smiley testified she and appellant were at the Dietrich Road Apartments on the day of the

shooting and confirmed they were both carrying guns. Smiley testified she was carrying a .22

caliber gun while appellant was carrying a gun she described as similar to one that a police officer

carries. When they arrived, Smiley said she ran into her friend, Laketa Nation, and “smoked a

blunt with her” on the apartment complex steps. 1 Smiley testified she was sitting on the stairs with

Nation when she heard gunshots and ran off. While running, Smiley ran into Thomas, who asked

her for help. Smiley testified she ran away without helping Thomas and felt bad for doing so.

When she met up with appellant, she was in shock because she had just ran into someone who had

been shot. When Smiley mentioned she saw Thomas, appellant asked her whether Thomas had

died. Smiley told appellant she did not know because she did not stay long enough to find out. At

that point, Smiley testified appellant told her he was the person who shot Thomas.

        In addition to the witnesses’ testimony, the State also introduced forensic and physical

evidence. Crime scene investigators who processed Smiley’s car found two .22 caliber bullets,

and were also able to match appellant’s fingerprints with fingerprints located on Smiley’s car. The

medical examiner testified Thomas’s death was caused by a gunshot wound to the chest.

Additionally, investigators recovered a .40 caliber shell cashing and bullet fragments near the area

where Thomas was shot. Ballistic analysis on the shell casing and bullet fragments revealed the

bullet that killed Thomas was fired from either a Glock or Smith & Wesson .40 caliber handgun—

similar to the type of gun San Antonio police officers carry. The analysis also established that the

murder weapon would have been unable to fire a .22 caliber bullet.




1
 A blunt is a hollowed out cigar filled with marijuana instead of tobacco. See Tasby v. State, No. 05-99-02108-CR,
2000 WL 1598930, at *2 (Tex. App.—Dallas Oct. 27, 2000, no pet.).

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                   CORROBOTATION OF ACCOMPLICE TESTIMONY

       In his first issue, appellant challenges the sufficiency of the evidence to corroborate

Smiley’s accomplice witness testimony and argues the State relied solely on Smiley’s testimony

to prove he committed the offense. Therefore, he asserts the evidence was insufficient to support

the jury’s guilty verdict. We first address corroboration of the accomplice testimony.

1. Standard of Review

       To determine whether there is sufficient evidence to corroborate an accomplice’s

testimony, we exclude all accomplice witness testimony from consideration and then examine the

remaining portions of the record to see if there is any evidence that tends to connect the accused

in some way to the commission of the offense alleged in the indictment. Castillo v. State, 221

S.W.3d 689, 691 (Tex. Crim. App. 2007); Johnson v. State, 354 S.W.3d 491, 495 (Tex. App.—

San Antonio 2011, pet. ref’d). The non-accomplice evidence may be direct or circumstantial, and

must simply link the accused in some way to the commission of the crime, such that rational jurors

could conclude this evidence sufficiently tended to connect appellant to the offense. Smith v. State,

332 S.W.3d 425, 442 (Tex. Crim. App. 2011). The “tends-to-connect” standard does not present

a high threshold. Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.). Even

insignificant circumstances may satisfy this standard. Id. No precise rule can be formulated

regarding the amount of evidence that is required to corroborate the testimony of an accomplice

witness; each case must be judged on its own facts. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim.

App. 1994). We view the evidence in the light most favorable to the jury’s verdict when reviewing

corroboration under the accomplice witness rule. Id.

2. Analysis

       Excluding Smiley’s testimony, the evidence at trial included testimony from the medical

examiner, who testified Thomas’s death was the result of a gunshot wound to the chest. Three
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witnesses—Haynes, Hall, and Walker—identified appellant as the person who shot Thomas.

Nation also placed appellant at the Dietrich Road Apartments at the time the murder occurred, and

her description of appellant matched the other witnesses’ description of the shooter. Several

witnesses also reported the shooter fled the scene in Smiley’s car and appellant’s fingerprints

matched those found on Smiley’s car.

       Viewed in the light most favorable to the jury’s verdict, we conclude the evidence

sufficiently tends-to-connect appellant to the charged offense. Accordingly, Smiley’s testimony

was sufficiently corroborated by other evidence tending to connect appellant to Thomas’s murder.

                                     LEGAL SUFFICIENCY

1. Standard of Review

       When reviewing the legal sufficiency of the evidence to support a criminal conviction, we

review the evidence in the light most favorable to the verdict to determine whether a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

Under this standard, we are required to defer to the jury’s determination of the credibility of

witnesses “and the weight to be given their testimony.” Brooks, 323 S.W.3d at 899. An

eyewitness’s testimony alone, can be legally sufficient to support a guilty verdict. Aguilar v. State,

468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Castilla v. State, 374 S.W.3d 537, 539 (Tex. App.—

San Antonio 2012, pet. ref’d). Circumstantial evidence is as probative as direct evidence, and

alone, may be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). We do not ask whether we believe the evidence at trial established guilt beyond a

reasonable doubt, instead, we consider only whether the jury reached a rational decision. Brooks,

323 S.W.3d at 899.



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2. Analysis

         Appellant asserts the State relied solely on Smiley’s uncorroborated testimony to support

his conviction. Therefore, because her testimony was uncorroborated, he contends the evidence is

legally insufficient to support his conviction. However, having concluded there is sufficient non-

accomplice evidence corroborating Smiley’s testimony, we will include her testimony in our

evaluation of the legal sufficiency of all the evidence to support appellant’s conviction.

         A person commits the offense of murder if he intentionally or knowingly causes the death

of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West

2011).

         The evidence in this case includes testimony from the eyewitnesses who identified

appellant as the individual who shot Thomas. This evidence alone is legally sufficient to support

the verdict. See Castilla, 374 S.W.3d 539. However, in addition to this evidence, Smiley testified

appellant admitted he was the person who shot Thomas. Smiley also described the gun appellant

had with him on the day of the shooting as similar to one that a police officer carries, and the

forensic evidence established that the gun used in the shooting is consistent with the type of

weapon carried by the San Antonio Police Department. Viewing the evidence in the light most

favorable to the verdict, we conclude the a jury could have found beyond a reasonable doubt that

appellant intentionally or knowingly caused the death of Thomas, or intended to cause serious

bodily injury and committed an act clearly dangerous to human life that caused the death of

Thomas.

                                   PREJUDICIAL EVIDENCE

         In his second issue, appellant contends the trial court abused its discretion when it admitted

photographs of two .22 caliber bullets found in Smiley’s vehicle over his objection that the
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evidence was unduly prejudicial under Texas Rule of Evidence 403. The State responds that the

bullets were admissible to rebut the defense’s theory that Smiley was the shooter.

       Rule 403 allows for the exclusion of evidence when the probative value of evidence is

substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A Rule 403 analysis involves a balance

of: “(1) the inherent probative force of the proffered evidence along with (2) the proponent’s need

for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis,

(4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate

the probative force of the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted.” Gigliobianco

v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Subirias v. State, 278 S.W.3d 406, 408

(Tex. App.—San Antonio 2008, pet. ref’d). We review a trial court’s ruling on a Rule 403

objection for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App.

2013). As long as the trial court’s ruling falls within the zone of reasonable disagreement, we will

affirm its decision. Id.

A. Probative Value

       Under the first factor, we examine “how compellingly the evidence serves to make a fact

of consequence more or less probable.” Mechler, 153 S.W.3d at 440. In this case, appellant’s

defensive theory was that he was not the shooter. Appellant argued that because no witnesses

actually saw the shooting take place nor saw him with a gun, Thomas could have been shot by

another person with a gun that day, such as Smiley. To rebut that argument, the State introduced

pictures of the two .22 caliber bullets found in Smiley’s car, Smiley’s testimony that her gun was

a .22 caliber, and forensic evidence to establish that a .22 caliber gun could not have fired a .40
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caliber bullet and could not have been the murder weapon. Thus, because the photographs of the

.22 caliber bullets were introduced to rebut a defensive theory, the trial court could have reasonably

concluded that the State’s need for the evidence weighed in favor of admissibility.

B. Need for the Evidence

       Under the second factor, a proponent’s need for a particular piece of evidence is reduced

when the proponent “has other compelling or undisputed evidence to establish the proposition or

fact.” Gigliobianco, 210 S.W.3d at 641. Here, the State introduced several witnesses who

identified appellant as the person who shot Thomas. Although these witnesses identified appellant

as the shooter, each witness acknowledged that they did not actually see the shooting occur nor

did they see appellant with a gun. Smiley was the only person that day seen with a gun. Therefore,

the trial court could have reasonably concluded that this factor weighed in favor of admissibility.

C. Potential to Impress the Jury

       This factor asks whether the evidence has the potential to impress the jury in an irrational

way or suggest a decision on an improper basis. Id. Rule 403 does not exclude all prejudicial

evidence, only evidence that is unfairly prejudicial. Mechler, 153 S.W.3d at 440. All evidence

introduced against a defendant that is material to an issue in the case and tends to prove guilt is

prejudicial, but it is not necessarily unfairly prejudicial under Rule 403. Manning v. State, 114

S.W.3d 922, 927–28 (Tex. Crim. App. 2003). Evidence is unfairly prejudicial when it has a

“tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.”

Mechler, 153 S.W.3d at 440. Here, appellant argues “[t]he only purpose for the admission of the

bullets was to enflame the minds of the jury against both [Smiley] and [appellant], allowing [the

jury] to speculate that [Smiley and appellant] must both be gun toting criminals deserving no

justice.” We disagree. The evidence regarding the .22 caliber bullets related directly to appellant’s

defensive theory. Therefore, the photographs of the bullets did not have a tendency to tempt the
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jury into finding guilt on grounds apart from proof of the offense charged. Thus, the trial court

could have reasonably concluded this factor weighed in favor of admissibility.

D. Confusion of Issues & Undue Delay

       The fourth factor refers to a tendency to confuse or distract the jury from the main issues

in the case. Gigliobianco, 210 S.W.3d at 641. “Evidence that consumes an inordinate amount of

time to present or answer, for example, might tend to confuse or distract the jury from the main

issues.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). “‘Undue delay’ and

‘needless presentation of cumulative evidence’ concern the efficiency of the trial proceeding rather

than the threat of an inaccurate decision.” Id. Here, appellant was charged with murder. The

photographs of the bullets were directly related to appellant’s defensive theory, and, in

combination with other evidence, were introduced in order to rebut appellant’s argument that

another person, such as Smiley, was the shooter. The photographs were introduced during the

testimony of one of the investigators and did not consume an inordinate amount of time. Nor was

there a concern with the efficiency of the trial or the photographs being needlessly cumulative.

Thus, we conclude the trial court could have reasonably concluded that these factors weighed in

favor of admissibility.

E. Misleading the Jury

       “‘Misleading the jury,’ refers to a tendency of an item of evidence to be given undue weight

by the jury on other than emotional grounds.” Casey, 215 S.W.3d at 880. “For example,

‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force

of the evidence.” Id. Here, the investigator testified that identifying the caliber of the bullets was

accomplished by reading it from the shell casing. Therefore, there was little risk of the jury being

misled or assigning undue weight to the presentation of the bullets. Thus, this factor should also

be considered as weighing in favor of admissibility.
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F. Conclusion

       Considering all of the factors in the analysis, the trial court could have reasonably

concluded that the probative value of the photographs of the .22 caliber bullets was not

substantially outweighed by the danger of unfair prejudice. Accordingly, we conclude the trial

court did not abuse its discretion in allowing them into evidence.

                 COMMENT ON APPELLANT’S REFUSAL TO TESTIFY

       In his third issue, appellant complains the State improperly commented on his refusal to

testify. During the State’s opening remarks, the prosecutor laid out the State’s version of how it

believed Thomas was killed. The prosecutor then told the jury:

               At the end, what you’re going to find out from these witnesses, these
       witnesses that he didn’t count on, that this defendant committed murder. We’re
       going to ask you to find him guilty of it. You’re going to find him guilty based on
       the evidence.

              Now, the defense will have the opportunity to tell you how it—whatever
       defense it’s going to be. What I want you to keep in mind as you’re listening to the
       evidence is whether what they’re telling you is actually in evidence.

The defense then objected on the grounds the statement was argumentative, which the trial court

sustained.

       To preserve a complaint for appellate review, the complaining party must have made “a

timely request, objection, or motion” to the trial court that specifically stated the party’s complaint.

TEX. R. APP. P. 33.1(a)(1); Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004).

Additionally, the complaint on appeal “must comport with the objection made at trial.” Yazdchi

v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Here, the objection made at trial was that

the prosecutor’s statement was argumentative, not that the statement was a comment on appellant’s

refusal to testify. Accordingly, because appellant’s complaint on appeal does not comport with

the complaint made at trial, we conclude appellant has failed to preserve error.


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        Additionally, assuming error had been preserved, we conclude the prosecutor’s remark was

not a comment on appellant’s refusal to testify. When addressing a complaint of an improper

comment on a defendant’s refusal to testify, we review the language from the standpoint of the

jury. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996). The fact that the language might

be construed as an implied or indirect allusion to a defendant’s refusal to testify is not sufficient.

Id. Where the statement does not refer to evidence that can come only from the defendant, it is

not a comment on a defendant’s refusal to testify. Id. Here, the prosecutor’s remark did not refer

to evidence that could have only come from appellant and was not a comment on appellant’s

refusal to testify.

                                      SPOUSAL PRIVILEGE

        In his fifth issue, appellant asserts Smiley was entitled to assert the marital privilege not to

testify against him. Appellant and Smiley were never ceremonially married; therefore, appellant

contends the evidence was sufficient to establish that a common law or informal marriage existed

between them at the time of the events to which Smiley testified.

        After she was granted immunity in exchange for her testimony, Smiley asserted she and

appellant were informally married and argued that she had a privilege not to be called as a witness

by the State. Outside the presence of the jury, Smiley’s counsel attempted to establish the existence

of an informal marriage. At the end of the hearing, the trial judge ruled Smiley failed to meet her

burden of establishing the existence of an informal marriage based on the amount of evidence

contrary to her assertion. Smiley was subsequently called to testify by the State.

1. Standard of Review

        “Preliminary questions concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be determined by the court . . . .”

TEX. R. EVID. 104(a). “In reviewing the trial court’s ruling [on the existence of an informal
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marriage,] as with other questions concerning the admissibility of evidence, we apply an abuse of

discretion standard.” Colburn v. State, 966 S.W.2d 511, 514 (Tex. Crim. App. 1998); see Tienda

v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial court does not abuse its discretion

unless its decision is outside the zone of reasonable disagreement. Colburn, 966 S.W.2d at 514.

The existence of an informal marriage is a question of fact, and the party seeking to establish the

existence of the marriage bears the burden of proving the validity of the marriage by a

preponderance of the evidence. Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App.—San Antonio

2013, pet. denied); Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993,

no pet.). Where, as here, the trial court’s decision turns on the credibility and demeanor of a

witness, we review its decision in a light most favorable to its ruling. Jasper v. State, 61 S.W.3d

413, 419 (Tex. Crim. App. 2001).

2. Analysis

       “In a criminal case, the spouse of the accused has a privilege not to be called as a witness

for the state.” TEX. R. EVID. 504(b)(1). An informal marriage may be proven by showing that a

declaration of marriage has been signed. Jasper, 61 S.W.3d at 419. If there is no declaration,

there must be a showing of three elements: 1) the parties agreed to be married, (2) after the

agreement they lived together in Texas as husband and wife, and (3) they represented to others

that they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006); Alonso, 409 S.W.3d at

757.

       Appellant was not called to testify at the hearing, and Smiley was the only witness to testify

about the alleged informal marriage. No declaration of marriage was offered. Smiley testified

that she considered herself married to appellant for three years prior to the day of the shooting.

Smiley said that she and appellant held themselves out as married to their friends and family, and

testified that she and appellant lived together prior to his arrest. Smiley also introduced letters she
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sent to appellant. In the letters, Smiley referred to herself as “Brittney Carter,” and Smiley

explained Carter is the last name of appellant’s mother. Smiley also sent a letter to appellant’s

attorney. In that letter, Smiley refers to appellant as her husband, writing, “I understand you’re

my husband’s attorney.”

        However, upon cross-examination by the State, Smiley gave contradictory testimony.

During the hearing, Smiley testified she was living with appellant at a house on Castle Hunt Drive;

however, she listed her home address at a house on Dysart Drive when she was interviewed by the

police on July 22, 2012. Smiley stated the Dysart address was her mailing address, not her home

address. The police statement also shows Smiley responded that she was not married when she

was asked her marital status. When asked about the discrepancy, Smiley stated “that couldn’t have

been answered by me,” and that she could not remember speaking to the police because she was

high on Xanax and marijuana that day. The State then played a recorded portion of the interview.

After hearing the recording, Smiley confirmed responding that she was not married when asked

by the officer.

        Appellant’s jail visitation records were also introduced during the hearing. The records

show that the mother of appellant’s son identified herself as appellant’s spouse when she visited.

The records also show Smiley identified herself as appellant’s girlfriend when she visited. Smiley

said the identifications were outdated and could not be updated once entered. A letter sent from

appellant to a woman named Brittney Smith was also introduced during the hearing. In the letter,

appellant asks Smith to be his wife. Smiley confirmed appellant was not writing to her and that

she did not live at the address listed on the letter. Finally, the State introduced Smiley’s

Supplemental Nutrition Assistance Program (food stamps) application where Smiley listed herself

as single.



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          Viewing the evidence in the light most favorable to the trial court’s ruling, we conclude

there was sufficient evidence to support the trial court’s ruling. Although the evidence may have

been sufficient to raise a fact question as to the existence of an informal marriage, we cannot say

that the trial court abused its discretion.

          Appellant further contends the trial court erred by failing to submit the issue of the

existence of an informal marriage to the jury. However, “[t]he right to have the issue [of the

existence of a common law marriage] presented to the jury may be waived if such an instruction

is not requested.” Aguilar v. State, 715 S.W.2d 645, 647 (Tex. Crim. App. 1986). Here, no jury

question was requested. Therefore, we conclude appellant waived this complaint on appeal.

                                    MOTION FOR NEW TRIAL

          In his final issue, appellant asserts the trial court erred when it denied his motion for new

trial. Appellant bases this argument on three grounds: (1) the State failed to disclose Brady

material; (2) his right to a public trial was violated; and (3) he was denied the ability to present

oral testimony.

          We review a trial court’s ruling on a motion for new trial under an abuse of discretion

standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). Under this standard, we

view the evidence in the light most favorable to the trial court’s ruling and uphold the trial court’s

ruling if it is within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 110

(Tex. Crim. App. 2007). We do not substitute our judgment for that of the trial court, but instead

consider whether the trial court’s decision was arbitrary or unreasonable. Id.; Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in denying a motion

for new trial when no reasonable view of the record could support its ruling. Colyer, 428 S.W.3d

at 122.



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       “The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a

motion for new trial with respect to both live testimony and affidavits.” Okonkwo v. State, 398

S.W.3d 689, 694 (Tex. Crim. App. 2013). If there is conflicting evidence on an issue of fact, the

trial judge determines the issue and there is no abuse of discretion in overruling the motion for

new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

A. Brady Violation

       The State has a duty to disclose evidence that is favorable to a defendant. See Brady v.

Maryland, 373 U.S. 83, 87 (1963); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).

This duty extends to impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676

(1985). To establish a Brady violation claim, the defendant must show that (1) the State failed to

disclose evidence, regardless of the good faith of the prosecutor, (2) the withheld evidence is

favorable to the defendant, and (3) the withheld evidence is material, meaning there is a reasonable

probability that had the evidence been disclosed, the outcome of the trial would have been

different. See Harm, 183 S.W.3d at 407. However, Brady is not a general discovery motion.

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Nor is the State required to seek out exculpatory

evidence independently on the defendant’s behalf or furnish the defendant with exculpatory or

mitigating evidence that is accessible from other sources. See Pena v. State, 353 S.W.3d 797, 811

(Tex. Crim. App. 2011); Harm, 183 S.W.3d at 407.

       Appellant’s Brady argument is based on a motion to revoke Smiley’s probation and

adjudicate guilt filed by the State on April 5, 2013. The motion states that on or about March 25,

2013, approximately three days after the conclusion of appellant’s trial, Smiley violated condition

number two of her probation by failing to submit to a drug test and using marijuana, cocaine, and

“pills,” by admission. Appellant construes this motion as the State withholding impeachment

evidence that Smiley was under the influence of drugs at the time of her testimony during
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appellant’s trial. However, during the hearing on appellant’s motion for new trial, the State

submitted an affidavit from Tanner Neidhardt, the prosecutor in appellant’s trial. In his affidavit,

Neidhardt stated the motion to revoke and adjudicate guilt was based on a phone call made by

Smiley several days after the conclusion of appellant’s trial. Neidhardt stated the District Attorney

was monitoring Smiley’s phone calls and overheard Smiley tell appellant, “I’m dirty as fuck . . . .

I got pills in my system. I got lean in my system, cocaine in my system.” The conversation was

forwarded to Smiley’s probation officer, who initiated the motion to revoke based on the content

of that conversation.

       Consequently, appellant has failed to demonstrate that the State possessed any

impeachment evidence at the time of Smiley’s testimony, and thus, has failed to show the State

withheld evidence favorable to appellant. Accordingly, viewing the evidence in the light most

favorable to the trial court’s ruling, we cannot conclude the trial court abused its discretion in

denying appellant’s motion for new trial on this ground.

B. Denial of a Public Trial

       Under the Sixth Amendment to the United States Constitution, an accused has the right to

a public trial in all criminal prosecutions. U.S. CONST. amend. VI; Lilly v. State, 365 S.W.3d 321,

328 (Tex. Crim. App. 2012). A public trial benefits the accused by serving as “an effective

restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948); Lilly, 365

S.W.3d at 328. However, the right to a public trial is not absolute and must give way to other

competing interests or rights. Waller v. Georgia, 467 U.S. 39, 45 (1984); Lilly, 365 S.W.3d at 328.

“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be

prejudiced, the closure must be no broader than necessary to protect that interest, the trial court

must consider reasonable alternatives to closing the proceeding, and it must make findings

adequate to support the closure.” Waller, 467 U.S. at 48.
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       “[T]he first step for a reviewing court when analyzing whether a defendant’s right to a

public trial was violated is to determine if the trial was, in fact, closed to the public.” Lilly, 365

S.W.3d 329. “When determining whether a defendant has proved that his trial was closed to the

public, the focus is not on whether the defendant can show that someone was actually excluded.”

Id. at 331. “Rather, a reviewing court must look to the totality of the evidence and determine

whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate

public attendance at criminal trials.’” Id. (quoting Presley v. Georgia, 558 U.S. 209, 215 (2010)).

“Once it is determined that the defendant’s trial was closed to the public, the reviewing court

decides whether that closure was proper.” Id.

       Appellant contends his right to a public trial was violated because his stepfather, Eddie

Taylor, was prevented from entering the courtroom. Taylor is a Bexar County employee who

works in the maintenance department of the courthouse where appellant was tried. In his motion

for new trial, appellant alleged Neidhardt saw Taylor in the holding area where appellant was being

held before trial. Appellant further alleged Neidhardt called Taylor’s supervisor, Ben Ramirez,

and requested Ramirez instruct Taylor not to enter the holding area during trial. Additionally, the

motion stated Ramirez denied receiving a call from Neidhardt, but further alleged that Ramirez

received a call from another individual named Sergeant Castillo, who informed Ramirez that

Taylor was to be instructed not to enter the courtroom.

       Neidhardt addressed these allegations in his affidavit attached to the State’s response to

appellant’s motion for new trial. Neidhardt confirmed Taylor was observed leaving the holding

area; however, Neidhardt denied appellant’s allegations that Taylor was prevented from attending

appellant’s courtroom proceedings. Neidhardt stated that he spoke to appellant’s counsel and

informed her the trial court did not have a hearing that Taylor was barred from attending.

Neidhardt denied calling Ramirez, denied that he knew Ramirez, and denied requesting Taylor be
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instructed not to enter the courtroom. He also denied calling or asking any other person to call

Castillo to instruct Taylor not enter the courtroom. Finally, Neidhardt denied there was ever a

hearing in the trial court regarding Taylor, nor was there any other discussion with the trial judge

regarding Taylor.

       Additionally, a review of the record shows the trial court did not take any affirmative action

to exclude the public or specific individuals from attending the proceedings. Cf. Lilly, 365 S.W.3d

at 332. Viewing the totality of the evidence, we conclude appellant has failed to demonstrate the

trial was closed to the public, or that the trial court failed to fulfil its obligation to take every

reasonable measure to accommodate public attendance. Accordingly, we cannot say that the trial

court abused its discretion in denying appellant’s motion for new trial on this ground.

C. Denial of Live Testimony

       Appellant also argues the trial court erred by denying him the ability to present oral

testimony in support of his motion for new trial. On appeal, appellant contends “[t]here were

several witnesses who would not supply affidavits but who were subpoenaed to the hearing on the

Motion for New Trial.” However, he does not identify the witnesses or the substance of their

testimony.

       “It has long been held that a trial court may decide a motion for new trial based on sworn

pleadings and affidavits admitted in evidence without hearing oral testimony.” Holden, 201

S.W.3d at 763 (citing Rivera v. State, 89 S.W.3d 55, 58–59 n.9 (Tex. Crim. App. 2002)). Oral

testimony is not required and a trial court may rule on a motion for new trial “based on sworn

pleadings and affidavits without oral testimony.” Id. Therefore, the trial court was entitled to

resolve the issues raised in appellant’s motion for new trial on the basis of the affidavits alone.

Accordingly, we conclude the trial court did not abuse its discretion by ruling on the motion for

new trial without hearing oral testimony.
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                                       CONCLUSION

       Based on the foregoing reasons, we affirm the trial court’s judgment.


                                                Sandee Bryan Marion, Justice


Do not publish




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