                          NUMBER 13-17-00112-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


EDUARDO LUNA RODRIGUEZ,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellant Eduardo Luna Rodriguez appeals from a judgment convicting him of one

count of capital murder by committing murder in the course of retaliation, see TEX. PENAL

CODE ANN. §§ 19.03(a)(2), 36.06(a)(1) (West, Westlaw through 2017 1st C.S.), a capital

felony, and one count of engaging in organized criminal activity by possessing with intent

to distribute a controlled substance in an amount greater than 400 grams, see id.
§ 71.02(a) (West, Westlaw through 2017 1st C.S.), a first-degree felony, and sentencing

him to imprisonment for life without parole and fifty years, respectively. In six issues,

which we reorder, Eduardo 1 complains that: (1) there is insufficient non-accomplice

witness testimony to corroborate an accomplice witness’s testimony; (2-3) the trial court

abused its discretion by overruling his objections and granting the State leave to amend

its expert disclosure and call a previously undisclosed expert and a lay witness whose

names were not included in the State’s pretrial witness list; (4-5) the trial court abused its

discretion by denying his motion for continuance to investigate and determine the need

to hire defensive experts following the trial court’s overruling of objections lodged in

relation to Eduardo’s second and third issues; and (6) cumulative error necessitates

reversal. We affirm.

                                            I. BACKGROUND

       According to the indictment, on March 10, 2015, Eduardo, Eduardo’s older brother

Fernando Luna Rodriguez, Eduardo’s eldest brother Joel Luna, Aaron Rodriguez

Medellin, and Nestor Manuel Leal, shot Jose Francisco Palacios-Paz dead because the

group believed that Palacios-Paz was going to inform law enforcement authorities about

the group’s narcotics smuggling and selling activities. All five individuals were indicted

on, among other things, one count of capital murder and one count of engaging in

organized criminal activity by possessing with intent to distribute a controlled substance

in an amount greater than 400 grams.                 Before trial, Fernando entered into a plea

agreement with the State wherein it recommended that Fernando be sentenced to ten



       1   We will refer to appellant by his first name because he shares a surname with several witnesses.
                                                     2
years’ community supervision in exchange for his testimony.

A.     Fernando’s Testimony

       At trial, Fernando recounted his and his brothers’ narcotics trafficking activity in the

years preceding Palacios-Paz’s death. Toward the beginning of this period, Fernando

lived and worked in Reynosa, a city on the Mexican side of the United States–Mexico

border.   Fernando recalled receiving approximately two hundred and fifty thousand

dollars in U.S. currency, a kilo of cocaine, and a pistol. The pistol was inscribed with the

words “Parado,” which according to Fernando means “bird” and is Eduardo’s nickname;

“puma commandate;” and “Cartel de Gulfo.” The pistol’s handgrips depicted Saint Jude.

Fernando, who worked for a Mexican oil and gas company in Reynosa, stored these items

in his work locker.

       Over time, Fernando brought the money, cocaine, and pistol into the United States.

He gave the cocaine to Aaron and Nestor in small batches and admitted to seeing them

sell it on at least one occasion. Meanwhile, Eduardo acquired Veterans Tire Shop in

Edinburg, Texas; Palacios-Paz worked at the tire shop. Joel purchased a house in San

Juan, Texas. In 2015, Eduardo purchased a large safe and placed it in Joel’s house.

       On March 9, 2015, Fernando received a text message from Palacios-Paz’s

girlfriend indicating that Palacios-Paz was going to inform law enforcement authorities

about the group’s drug smuggling and selling activities. He forwarded the messages to

Eduardo. Eduardo texted back to Fernando, “you are going to see, this is it.” Eduardo’s

text message lead Fernando to believe that Eduardo was going to act against Palacios-

Paz. The following day at approximately 7:00 p.m., Palacios-Paz was watching a video


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on his cellphone in the office at the tire shop as Fernando sat near him. Eduardo then

entered the office, shot Palacios-Paz in the head with the decorated pistol Fernando had

brought into the United States, and exited the room. On Eduardo’s orders, Aaron and

Nestor wrapped Palacios-Paz’s body in a rug and placed it in the bed of Eduardo’s pickup

truck.    After Eduardo drove away from the tire shop, he informed Fernando over a

cellphone conversation that he intended to dispose of Palacios-Paz’s body at a fishing

spot on South Padre Island, Texas.

B.       Other Witnesses’ Testimony

         On March 16, 2015, a headless body was reported to be floating in the Laguna

Madre. Jose Chapa, a special agent with the Department of Homeland Security, was

asked by law enforcement officials to identify the body by comparing its fingerprints to

those in an immigration database. Chapa’s comparison identified the body as that of

Palacios-Paz, a Honduran native who had recently been deported.

         Elizabeth Miller, M.D., a forensic pathologist, performed an autopsy on Palacios-

Paz’s decapitated body. Miller observed that, in addition to being decapitated, Palacios-

Paz’s body sustained a vertical incision that extended from just above the pelvic bone up

through the right side of the chest. She concluded that the cause of Palacios-Paz’s

death was homicidal violence.

         Jennifer Smith, a senior forensic analyst, compared DNA samples taken from

Palacios-Paz’s body with four blood samples collected from the tire shop. Two of the

blood samples from the tire shop matched Palacios-Paz’s DNA.




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      Marla Flores, an intelligence analyst for the Unified Narcotics Intelligence Task

Force in the Cameron County District Attorney’s Office, extracted text messages, call

logs, and location information for the cellphones of, among others, Eduardo, Joel, and

Fernando. Flores was also able to extract text messages that were deleted by the

cellphone’s user.   According to Flores, beginning at 6:24 p.m. on March 9, 2015,

Fernando sent Eduardo text messages. Flores read those messages, which were in

Spanish, and, as translated by the court interpreter, the messages stated: “Hello, good

evening. Now Franky is saying that—and his brother sell drugs and that in any—And

that at any moment, he is going to put the finger on him.” Using data from cellphone

tower pings made whenever Eduardo’s cellphone made or received a call, Flores

determined that, on March 10, 2015, Eduardo’s cellphone was in Edinburg between 11:27

a.m. and at least 3:38 p.m. At 7:34 p.m., Eduardo’s cellphone made an outgoing call

that was relayed from a cellphone tower in the McAllen, Texas area. Throughout the

remainder of the evening, Eduardo’s cellphone continued to receive incoming and make

outgoing calls along U.S. Highway 83 while traveling eastward toward the Laguna Madre.

The final calls for Eduardo’s cellphone on March 10, 2015 pinged off of cellphone towers

along the Laguna Madre during the 11:00 p.m. hour.

      Patrick O’Connor, a Texas Ranger, assisted with the investigation into Palacios-

Paz’s death. As part of O’Connor’s investigation, he executed a search warrant on Joel’s

house in San Juan. A safe inside the house was retrieved and opened. It contained,

among other things, the following: (1) the decorated gun described by Fernando; (2) a

black case containing a white powdery substance later identified as cocaine with trace


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amounts of methamphetamine; (3) license plates from the Mexican state of Tamaulipas;

(4) a ledger containing notes regarding weapons and money; (5) ninety thousand dollars

in U.S. currency; (6) baggies, measuring spoons, and a digital scale; and (7) a yellow

envelope.     O’Connor opined that foreign license plates may be used to hinder an

investigation because U.S. law enforcement authorities have no way of ascertaining the

vehicle’s registration. O’Connor further opined that the baggies, measuring spoons, and

digital scale were used to repackage and sell drugs based on their proximity to the

cocaine.

         Carlos Vela, a forensic analyst with the Texas Department of Public Safety,

analyzed the contents of the safe for fingerprints.       He determined that the yellow

envelope inside the safe contained Eduardo’s thumb print.

C.       Jury Charge, Verdict, and Judgment

         The jury charge instructed the jury that Fernando was an accomplice as a matter

of law. The jury was also instructed that it could not find Eduardo guilty unless it first

believed Fernando’s testimony and then found that Fernando’s testimony was

corroborated by other evidence tending to connect the defendant with the offense

committed; and the corroboration is not sufficient if it merely shows the commission of the

offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West, Westlaw through 2017 1st

C.S.).

         The jury found Eduardo guilty of one count of capital murder by committing murder

in the course of retaliation, see TEX. PENAL CODE ANN. §§ 19.03(a)(2), 36.06(a)(1), and

one count of engaging in organized criminal activity by possessing with intent to distribute


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a controlled substance in an amount greater than 400 grams. See id. § 71.02(a). The

trial court assessed punishment at imprisonment for life without parole and fifty years for

each respective count. It signed a judgment in accordance with the jury’s verdict and its

assessment of punishment. This appeal followed.

                                       II. DISCUSSION

       We address Eduardo’s appellate issues in their reordered sequence.

A.     Corroboration of Accomplice-Witness Testimony

       By Eduardo’s first issue, he contends that the State failed to present sufficient non-

accomplice corroborating evidence to connect him to the alleged commission of the

offenses of capital murder by retaliation and engaging in organized criminal activity.

       1.     Standard of Review and Applicable Law

       Under Texas Code of Criminal Procedure article 38.14, a conviction cannot stand

on an accomplice witness’s testimony unless the testimony is sufficiently corroborated by

other, non-accomplice evidence. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App.

2011) (citing TEX. CODE CRIM. PROC. ANN. art. 38.14).          A challenge of insufficient

corroboration is not the same as a challenge of insufficient evidence to support the verdict

as a whole. Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.—Austin 2002, no pet.).

To corroborate accomplice-witness testimony, such as that of Fernando, “[a]ll the law

requires is that there be some non-accomplice evidence which tends to connect the

accused to the commission of the offense.” Id. (quoting Hernandez v. State, 939 S.W.2d

173, 178 (Tex. Crim. App. 1997)); see TEX. CODE CRIM. PROC. ANN. art. 38.14.




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         Corroboration is not sufficient if it merely shows the offense was committed. TEX.

CODE CRIM. PROC. ANN. art. 38.14; Smith, 332 S.W.3d at 439.              To determine the

sufficiency of the corroboration, we eliminate the testimony of the accomplice and

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

connect the accused to the commission of the offense. Castillo v. State, 221 S.W.3d

689, 691 (Tex. Crim. App. 2007); Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—

Dallas 2014, pet. ref’d). We look at the particular facts and circumstances of each case

and consider the combined force of all the non-accomplice evidence that tends to connect

the accused to the offense. Smith, 332 S.W.3d at 442; Malone v. State, 253 S.W.3d

253, 257 (Tex. Crim. App. 2008).           There is no set amount of non-accomplice

corroboration evidence that is required for sufficiency purposes, but rather each case

must be judged on its own facts. Malone, 253 S.W.3d at 257 (citing Gill v. State, 873

S.W.2d 45, 48 (Tex. Crim. App. 1994)); see also Cantelon, 85 S.W.3d at 461 (explaining

that the “tends to connect” standard is not a high standard). Corroborating evidence may

be direct or circumstantial and need not be sufficient by itself to establish the defendant’s

guilt.    Smith, 332 S.W.3d at 442.         “Even ‘apparently insignificant incriminating

circumstances’ may provide sufficient corroboration.”       Medrano, 421 S.W.3d at 883

(quoting Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)). Further, “when

there are conflicting views of the evidence—one that tends to connect the accused to the

offense and one that does not—we will defer to the factfinder’s resolution of the evidence.”

Smith, 332 S.W.3d at 442.




                                             8
         Evidence that the defendant was in the company of the accomplice at or near the

time or place of the crime is not, alone, conclusive corroboration.      Hernandez, 939

S.W.2d at 178. However, proof that the accused was at or near the scene of the crime

at or about the time of its commission, when coupled with other suspicious circumstances,

may tend to connect the accused to the crime so as to furnish sufficient corroboration to

support a conviction. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993).

Additionally, motive and opportunity evidence is insufficient on its own to corroborate

accomplice-witness testimony, but both may be considered in connection with other

evidence that tends to connect the accused to the crime. Smith, 332 S.W.3d at 442.

Other suspicious conduct of the defendant includes actions indicating the defendant’s

consciousness of guilt. See Simmons v. State, 282 S.W.3d 504, 510 (Tex. Crim. App.

2009).

         2.    Analysis

         As described above, the record contains non-accomplice witness testimony

relating to Palacio-Paz’s death and the controlled substance found in the safe. Smith

testified that two of the blood samples from Eduardo’s tire shop matched Palacios-Paz’s

DNA.      Flores recounted text messages that Eduardo’s cellphone received from

Fernando’s cellphone which provided that Palacio-Paz was prepared to implicate

Eduardo in narcotics trafficking. Smith, 332 S.W.3d at 442 (providing that motive and

opportunity evidence may be considered in connection with other evidence that tends to

connect the accused to the crime). Moreover, using the pings from Eduardo’s cellphone

for incoming and outgoing phone calls, Flores testified that Eduardo’s cellphone travelled


                                            9
from Edinburg toward the Laguna Madre on March 10, 2015. Flores’s forensic analysis

of Eduardo’s cellphone data corroborates Fernando’s testimony regarding Eduardo’s

involvement in Palacio-Paz’s murder and disposal of the body. As for evidence relating

to Eduardo’s involvement with possession of a controlled substance, Vela testified that a

yellow envelope inside the safe contained Eduardo’s thumb print.       Lastly, O’Connor

opined that the baggies, measuring spoons, and a digital scale—located in the safe

Eduardo purchased and which contained the envelope with Eduardo’s thumb print—were

used to repackage and sell drugs, based on their proximity to the cocaine.

       On this record, we conclude there is “some non-accomplice evidence which tends

to connect the accused to the commission of the offense.” Hernandez, 939 S.W.2d at

178; see Smith, 332 S.W.3d at 439, 442.          Therefore, we conclude the accomplice-

witness testimony in question was sufficiently corroborated. See Smith, 332 S.W.3d at

442.

       We overrule Eduardo’s first issue.

B.     Smith’s and Chapa’s Testimony

       By Eduardo’s second issue, he contends that the trial court abused its discretion

in granting the State leave to amend its expert designation to include Smith. Eduardo’s

third issue contends that the trial court abused its discretion by allowing Chapa, whom

Eduardo contends was a lay witness but concedes may also have been classified as an

expert, to testify.

       1.      Standard of Review and Applicable Law

       Upon request, the State is required to provide notice of any expert witnesses it


                                            10
intends to call at trial. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West, Westlaw

through 2017 1st C.S.). 2 If the trial court allows a witness who was not on the State’s list

to testify, we review that decision for an abuse of discretion. Martinez v. State, 867

S.W.2d 30, 39 (Tex. Crim. App. 1993); Hamann v. State, 428 S.W.3d 221, 227 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d); Depena v. State, 148 S.W.3d 461, 465 (Tex.

App.—Corpus Christi 2004, no pet.).              In our review, we consider two factors:               (1)

whether the State’s actions in calling a previously undisclosed witness constituted bad

faith, and (2) whether the defendant could have reasonably anticipated that the witness

would testify. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000) (citing Nobles

v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992)); Hamann, 428 S.W.3d at 228.

        2.      Analysis

        At the final pretrial hearing, counsel for the State and Eduardo argued over the

State’s disclosure of expert witnesses. The arguments of counsel provide the following:

        [EDUARDO’S COUNSEL 1]:           Your Honor, on September 28th, 2016, the
                                         State filed its notice of expert witnesses. In that
                                         notice—what is her name again, I’m sorry.

        [PROSECUTOR]:                    Jennifer Smith.

        [EDUARDO’S COUNSEL 1]:           Ms. Smith was never disclosed.

        [EDUARDO’S COUNSEL 2]:           We have the notices to the Court.

        [EDUARDO’S COUNSEL 1]:           We have the notice, Your Honor.


        2   The trial was governed by an earlier version of the Texas Code of Criminal Procedure, which
required a ruling from the trial court before the State had to produce the response. See Act of Jun. 15,
2015, 84th Leg., Ch. 459, 2015 TEX. GEN. LAWS 1774 (amending article 39.14(b) to eliminate the need for
a court order). The record contains no such order. However, from the arguments of counsel to the trial
court, it appears that the State responded to the request without awaiting an order from the trial court.
Accordingly, the distinction between the different versions of the statute is not relevant in this case. We
will refer to the current statute for ease of reference.
                                                   11
[PROSECUTOR]:            We would ask to amend our notice, Judge.
                         Jennifer Smith was the private Lab Corps which
                         was noted and discussed in the supplemental
                         reports by the investigators that investigated this
                         case since before June of ‘15.

[EDUARDO’S COUNSEL 1]:   However, Your Honor, the rules are very clear,
                         they must be disclosed prior to trial, and I will
                         look at the rule, but the morning of trial is not the
                         time to disclose witnesses, Your Honor. We
                         will be asking that she be stricken.

[COURT]:                 And she [is] an expert on what?

[PROSECUTOR]:            The DNA.

[COURT]:                 DNA?

[PROSECUTOR]:            DNA. And she was disclosed in a subpoena
                         list long before this setting. I believe the
                         subpoena list for this case has been filed, and I
                         expect her name would be in the last subpoena
                         list.

[EDUARDO’S COUNSEL 2]:   Your Honor—

[EDUARDO’S COUNSEL 1]:   Again, Your Honor, that’s why we filed our
                         request.     That’s why there are rules of
                         evidence. That’s why we always abide and
                         play by them. And because she was not
                         disclosed, Your Honor, we are going to be
                         asking that you—that she be stricken.

[COURT]:                 All right. The Motion to Strike will be denied.
                         The Court will grant the Motion to Amend the
                         Expert List.

[EDUARDO’S COUNSEL 1]:   Your Honor, and I will reurge my motion, Your
                         Honor, pursuant to Article 39.14 of the Texas
                         Code of Criminal Procedure, Rules of Evidence
                         702, 703 and 705, Your Honor, it is required that
                         it be disclosed, not be disclosed right before we
                         pick a jury, because we would not have been
                         afforded the opportunity to properly, to properly

                                  12
                         prepare for this trial. That’s why the witnesses,
                         expert witnesses must be disclosed in order for
                         us to determine whether we need to retain our
                         own witnesses to review their reports or what
                         they will be testifying to, Your Honor. And they
                         didn’t. They do it right now. What opportunity
                         do we have on behalf of my client to adequately
                         prepare for his defense if that expert was not
                         disclosed?

[PROSECUTOR]:            There is no surprise on this case, Judge.
                         Counsel has been provided all the discovery we
                         have had, they have had the supplements from
                         Texas Ranger Patrick O’Connor, from
                         Sergeant—

[COURT]:                 Okay. Well, I don’t care about them on this
                         witness, was there a report generated by her?

[PROSECUTOR]:            Yes, and it’s in the file. It’s been disclosed to
                         them.

[COURT]:                 Okay.

[PROSECUTOR]:            It was part of the discovery.

[EDUARDO’S COUNSEL 1]:   Well, but then again, Your Honor, the rules don’t
                         say you provide a report. The rules are and the
                         law is that that is why they must put it in writing
                         and disclose their experts, because they rely
                         sometimes on other experts to testify from
                         another expert’s report. That’s why we have to
                         request that they list who they will be calling, not
                         just substitute Nilly-Willie [sic] at the time of trial.
                         How am I going to know—see, I didn’t even
                         know her name until right now. How am I going
                         to know how to adequately prepare. I didn’t
                         know her name, how I am going go look to see
                         whether this expert has ever been sanctioned,
                         has ever been disqualified as an expert? I
                         obviously don’t have the time to do it now, we
                         are going to be selecting a jury. That’s why we
                         have the Rules of Evidence, and the request.
                         And I filed my Motion for Discovery since

                                   13
                                    October of 2016. I didn’t file it last week. I
                                    didn’t file it last month. I filed it three months
                                    ago. And for them to come in this morning and
                                    tell us who it is, it’s not fair play. And not only
                                    that, Your Honor, my client’s due process has
                                    been violated and has continued to be violated
                                    if the Court grants them leave of court to amend
                                    their disclosure of experts. And it is not fair
                                    play and it is against the rights and due process
                                    of my client.

       [PROSECUTOR]:                Judge, counsel has been aware of the Sheriff’s
                                    Department seeking a private lab early on in this
                                    investigation to test the blood that was collected
                                    from the Veterans Tire Shop to connect it to this
                                    homicide. That has been clearly made known
                                    to counsel.         There was a lab return that
                                    matched the victim’s blood, Franky Palacios
                                    Paz, as drawn from his corpse and compared to
                                    the blood collected from the Veterans Tire. That
                                    was done by Lab Corps, by this individual,
                                    Jennifer Smith. That report has been provided
                                    to counsel long ago, Judge. There is no secret.
                                    There no surprise, okay? Now, they want it in
                                    writing, I’ll do it in writing right now, we are still
                                    prior to trial, trial hasn’t started.

       [COURT]:                     I already granted the Motion to Amend.

       As for Smith’s testimony, the State’s appellate brief aptly notes, as it did in the trial

court, that Smith’s report was provided to Eduardo’s counsel before trial and that

Eduardo’s counsel could have reasonably anticipated that Smith would testify. The State

also posits that there is no evidence of bad faith on its part. In light of the record before

us, we cannot say that the trial court abused its discretion in granting the State leave to

amend its expert disclosure and overruling Eduardo’s objection to Smith being called as

a witness by the State. See Wood, 18 S.W.3d at 649.



                                              14
        As for Chapa’s testimony, Eduardo’s appellate brief contends that the “trial court

abused its discretion when it permitted the State to call witness Chapa because the

prosecution never placed him on their trial witness list and he remained unknown to the

defense until the moment he was called to the stand.” Eduardo fails to direct us to any

portion in the record wherein he objected to Chapa being called to testify by the State.

See TEX. R. APP. P. 33.1. Assuming Eduardo preserved the error he now complains of,

we cannot conclude that the trial court abused its discretion in permitting Chapa to testify.

The State’s appellate brief notes that Chapa’s identification of Palacio-Paz’s fingerprints

was included in O’Connor’s supplemental report, which was disclosed to Eduardo’s

counsel. Thus, just as with Smith, Eduardo’s counsel could have reasonably anticipated

that Chapa would testify. See id. Moreover, Eduardo fails to direct us to any evidence

relating to bad faith on the State’s part. See id.

        We overrule Eduardo’s second and third issues. 3

C.      Cumulative Error

        By his sixth issue, Eduardo argues that his conviction should be reversed because

of the cumulative error. Multiple errors may be found to be harmful in their cumulative

effect even if each error considered separately would be harmless. Chamberlain v.

State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). The mere existence of multiple

errors, however, does not warrant reversal unless they operated in concert to undermine

the fundamental fairness of the proceedings. Estrada v. State, 313 S.W.3d 274, 311


        3 We need not address Eduardo’s fourth and fifth issues in light of our disposition of his second

and third issues. See TEX. R. APP. P. 47.1 (providing that the court of appeals must hand down a written
opinion that is as brief as practicable but that address every issue raised and necessary to final disposition
of the appeal).
                                                     15
(Tex. Crim. App. 2010). Moreover, if an individual’s claims of error lack merit, then there

is no possibility of cumulative error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim.

App. 2009). Eduardo has not demonstrated any trial court error from which we could

consider cumulative harm.

       We overrule Eduardo’s sixth issue.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.

                                                              LETICIA HINOJOSA
                                                              Justice

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

Delivered and filed the
24th day of January, 2019.




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