                          NUMBER 13-14-00045-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

GUSTAVO ARMANDO GARZA,                                                 Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 54th District Court
                       of McLennan County, Texas.


                       MEMORANDUM OPINION
              Before Justices Garza, Benavides and Perkes
                Memorandum Opinion by Justice Garza

      Appellant, Gustavo Armando Garza Jr., was convicted of possession of 2,000

pounds or less but more than 50 pounds of marihuana, a second-degree felony, and was

sentenced to ten years’ imprisonment. See TEX. HEALTH & SAFETY CODE ANN. § 481.121
(West, Westlaw through 2013 3d C.S.). Garza raises four issues on appeal. We affirm.1

                                             I. BACKGROUND

       Ryan Wadkins, a Texas Department of Public Safety (“DPS”) trooper, testified that

he was patrolling Interstate 35 on May 17, 2012 in Lorena, Texas, when he observed a

pickup truck pulling an aluminum trailer “ma[k]e a drastic reduction in speed.” Wadkins

stated that this “seemed very unusual because I did not believe that he was speeding

based on my visual observations.” Wadkins stated that the driver did not merely do a

normal “brake check”; rather, it was “a substantial reduction of speed enough to where

traffic behind him was having to lock up their brakes, pass, change lanes to go around

him because of his reduced speed.” Wadkins followed the vehicle and performed a

“routine registration check” which revealed that the truck and the trailer were both recently

registered to different persons. Wadkins then observed the vehicle change lanes without

signaling, and so he initiated a traffic stop.2

       The driver pulled over to the shoulder but left his turn signal on, which Wadkins

found unusual and a “possible sign of nervousness.” When Wadkins approached the

vehicle, he “noticed that the driver appeared very nervous.” The driver “was sort of

searching throughout his vehicle trying to locate the documents” and “was unable [to]

lower the windows. They were obviously powered windows, but he couldn’t find the right

switch.” Wadkins eventually opened the door to make contact with the driver. When

Wadkins asked the driver for his license and insurance, he was “taken aback” by the




        1 This appeal was transferred from the Tenth Court of Appeals pursuant to a docket equalization

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
       2   A video recording of the traffic stop was admitted into evidence and played for the jury.

                                                      2
cleanliness of the glove compartment, which contained only an owner’s manual,

registration receipt and proof of insurance, considering that the vehicle was “several years

old.”

        The driver identified himself as appellant Garza. Wadkins stated that Garza was

“still extremely nervous”—“he was visibly shaking throughout his body” and “his hand was

trembling” as Garza handed over his license. It seemed unusual to Wadkins that Garza

was acting that way given that he was only being pulled over for failing to signal a lane

change.

        The trailer contained three live horses. Garza explained to Wadkins that he started

his trip in Laredo, picked up the horses in Devine, in Medina County, and was heading to

Italy, in Ellis County. Wadkins testified that Garza “didn’t seem to exactly know what he

was doing. He didn’t seem to exactly know where he was going. His details were very

sketchy at best. I noticed that even while—our only few sentences, his stories would

change and the facts weren’t the same.” Garza told Wadkins that the truck was registered

in the name of his friend, Jose, but Garza was unable to provide Jose’s last name.3

Wadkins told Garza that he would issue a warning, not a ticket, “to try and relieve some

of his anxiety.”       The conversation continued but “still, the details were sketchy and

inconsistent.”

        Garza explained that he had purchased the horses and was now trying to sell them.

Garza told Wadkins that the horses were “barrel racing horses” and that he hoped to sell

each one for $9,000 or $10,000. He was not clear as to whether he was selling the horses

for himself or for a third party. Garza said he paid $4,000 for the pickup truck; Wadkins


        3   Wadkins testified that the truck was registered to Jose Angel Martinez.

                                                      3
testified that his registration check revealed that the truck had actually been sold for

$6,000.       Wadkins stated:       “It didn’t seem right that he was withholding common

information. It didn’t seem right that he wasn’t willing to cooperate with me, trying to

determine the ownership of these horses and ownership of his vehicle. It didn’t seem like

he wanted to divulge the location which he was traveling to.”

       Wadkins stated that he had a “basic knowledge” of horses by virtue of having

grown up on a ranch. When the prosecutor asked whether the horses appeared to be

worth $10,000, Wadkins replied:

       Just based on my previous experience on farms and ranches and based on
       all the livestock shows I attended and the rodeos that I have seen, it was
       apparent these animals were malnourished in my opinion. They seemed
       very aged. You could count most of their ribs on these animals. Their hip
       bones were protruding. They were in—I would consider very poor shape.

       Garza consented to a search of the trailer. Another DPS trooper, who had stopped

to give assistance, searched the trailer while Wadkins stayed with Garza. After more than

27 minutes of searching, the trooper found fifteen cellophane-wrapped bundles of a green

plant matter under some bales of hay in a padlocked compartment in the “nose” of the

trailer.4 The bundles were later confirmed to contain 674 pounds of marihuana.5 Wadkins

then arrested Garza at gunpoint. A search of the pickup truck revealed a key to the

padlock securing the compartment where the contraband was found. The key was

attached to the truck’s ignition key.

       On cross-examination, Wadkins conceded that he could not say whether the




       4 Wadkins stated that, by reaching through slats, the other trooper was able to search the

compartment without unlocking the padlock.
       5    Wadkins later testified that the retail value of that quantity of marihuana is approximately
$370,000.

                                                    4
horses were actually used for barrel racing. He stated that it was possible for someone

to have loaded the horses onto the trailer without ever going into the compartment where

the marihuana was found.             Wadkins agreed with defense counsel that, given the

substantial quantity of contraband, it was unlikely that Garza was “running this operation

by himself.” He disagreed, however, that it was possible for anyone to be in possession

of that much contraband without being aware of it. He conceded that there were no

weapons found in the truck or trailer, and that he did not investigate where the second

cell phone was purchased. Wadkins did not recall that Garza’s license was suspended

at the time the arrest was made; he acknowledged that being pulled over by an officer

while having a suspended license would possibly make someone nervous. Wadkins also

acknowledged that, if Garza had loaded the trailer, he would have had physical contact

with the hay and the marihuana, and yet Garza’s clothes did not smell of hay or

marihuana.

       Defense counsel offered into evidence several photographs of the two DPS

troopers posing in front of the confiscated marihuana bundles. The officers appeared to

be sitting on top of two children’s saddles that were found in the trailer. Wadkins admitted

on re-direct examination that he thought the photographs were “funny” and that he was

“excited” because he “just made a big bust.” Wadkins explained, “This is our celebratory

trophy shot.” When asked if it was “a little bit embarrassing” that the photos were being

shown in court, Wadkins replied: “I’m proud of my job. I love what I do. That’s a good

day at the office.”6

       Donna Kennedy, a DPS investigator, testified that she followed up on the case by


       6   At the time of trial, Wadkins had been employed by DPS for three years.

                                                    5
calling the number of the person whom Garza was supposed to meet in Italy. According

to Kennedy, Garza had told Wadkins that, when Garza got to Italy, he was supposed to

call a phone number that was on a bale of hay on the side of the road. Kennedy contacted

a local DPS trooper and obtained the number. She called the number and a man named

“Joshua Trees” answered. Trees stated that he was in the construction business; he

denied that he was interested in purchasing horses.         A criminal background check

revealed that Trees “owned a lot of heavy equipment which would be associated with

heavy construction.” Kennedy further testified that, according to her investigation, Garza

had driven the truck involved in this case through “a L[a]redo check point” on four separate

occasions in 2012.

       Jack Campbell, a McLennan County sheriff’s deputy, testified that Garza failed to

appear at an October 21, 2013 court setting. According to Campbell, the trial court

ordered Garza’s bond forfeited and issued a capias warrant. Garza appeared voluntarily

two days after the trial setting.

       Montea Stewart, a private investigator, testified on Garza’s behalf. She stated that

she was appointed by the trial court, at defense counsel’s request, to be an investigator

in this case. Stewart testified that the State obtained a default judgment against the

registered owners of the pickup truck and trailer in a forfeiture suit. A copy of the final

judgment of forfeiture was entered into evidence. Stewart further testified that, according

to her investigation, Joshua Trees owns a business called Rowdy T Ranch whose

business purpose is officially listed as “general ranching and livestock.” She agreed that

it would be false to say that Trees “has no connection with livestock animals or anything

like that.” Stewart further testified that the phone number which appeared on the side of



                                             6
the bale of hay in Italy, and to which Trees answered, was previously used by a man

named Ephraim Vasquez from August 4, 2006 to May 28, 2012.

       Garza was convicted as charged and this appeal followed.

                                       II. DISCUSSION

A.     Improper Argument

       By his first issue, Garza contends that the prosecutor impermissibly commented

on his decision to plead not guilty and his decision not to testify, thereby depriving him of

a fair trial. The comment about which Garza complains, which was made during opening

argument at the punishment phase, is as follows:

       Ladies and Gentlemen of the Jury, you-all are charged with sentencing
       Gustavo Garza. He’s sitting right here. And I want you to keep in mind, this
       isn’t someone who came into this courtroom and took responsibility for what
       they did. This is somebody who came in here, pled not guilty, and told you
       a story.

The following exchange then occurred:

       [Defense counsel]:      Excuse me, Your Honor, I would object on two
                               grounds, he just testified—or he’s just implying
                               that . . . my client has failed to testify. Um, he has
                               stated that he’s told a story. My client has obviously
                               not testified.

                               Secondly, he’s opining on his decision to have a trial
                               which is a constitutional right that he has and that’s
                               improper.

       THE COURT:              I’ll overrule the objection.

                               I will instruct the jury, our law provides that a
                               defendant may testify in his own behalf, if he elects
                               to do so. In the event he elects not to testify, that
                               fact cannot be taken as a circumstance against him.
                               In this case the Defendant has elected not to testify
                               and you are instructed that you cannot and must not
                               refer or allude to that fact throughout your
                               deliberations or take it into consideration for any


                                              7
                              purpose whatsoever as a circumstance against the
                              Defendant.

The trial court then denied defense counsel’s requests for an instruction to disregard the

prosecutor’s comment and for a mistrial.

       Permissible jury argument falls into four distinct and limited categories: (1)

summary of the evidence; (2) reasonable deductions from the evidence; (3) response to

opposing counsel’s argument; or (4) plea for law enforcement. Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008). We examine alleged improper argument in light

of the facts adduced at trial and in the context of the entire argument. McGee v. State,

114 S.W.2d 229, 239 (Tex. Crim. App. 1989). A trial court’s ruling on an objection to

improper jury argument is reviewed for abuse of discretion. See Garcia v. State, 126

S.W.3d 921, 924 (Tex. Crim. App. 2004). We also review a trial court’s denial of a mistrial

for abuse of discretion. Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). In

determining whether the trial court abused its discretion in denying a mistrial, we consider

(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and

(3) the certainty of conviction absent the misconduct. Id.

       A comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891

(Tex. Crim. App. 2011) (citing U.S. CONST. amend. V; Griffin v. California, 380 U.S. 609,

615 (1965); TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (West,

Westlaw through 2013 3d C.S.)).        In assessing whether an argument violates the

defendant’s constitutional rights in this manner, we “view the argument from the jury’s

standpoint and resolve any ambiguities in the language in favor of it being a permissible

argument.” Id. If the argument “might reasonably be construed as merely an implied or


                                             8
indirect allusion” to the defendant’s failure to testify, there is no violation; instead, “the

implication that the State referred to the defendant’s failure to testify must be a clear and

necessary one” if it is to constitute error. Id. “The test, then, is whether the language

used was manifestly intended or was of such a character that the jury would necessarily

and naturally take it as a comment on the defendant’s failure to testify.” Id. In applying

this standard, the context in which the comment was made must be analyzed to determine

whether the language used was of such character. Id.

       Garza argues that the trial court erred by overruling his objection and denying his

requests for an instruction to disregard and for a mistrial. The State argues the trial court

did not err because “[o]n its face, the comment does not address a failure to testify.”

Instead, the State argues that the prosecutor’s comment merely referred to the “story”

“told” by Garza that he was unaware of the marihuana in the trailer—i.e., Garza’s principal

defensive theory.

       In Randolph v. State, the Texas Court of Criminal Appeals considered whether a

comment by the prosecutor at the punishment phase that the defendant “refused to take

responsibility for his actions” was proper where the defendant had previously testified at

the guilt-innocence phase but declined to testify at the punishment phase. Id. at 890.

The Court observed:

       Prosecutors often argue at the punishment phase of trial that a defendant
       is not deserving of leniency or a probated sentence because he has not
       taken responsibility for his actions, shown remorse, or both. In a case in
       which the defendant does not testify either type of statement could
       constitute an impermissible comment on the failure to testify.

       ....

       [A] defendant may expressly deny responsibility by putting on an alibi
       defense or asserting that the result was an accident. Thus, the prosecution
       may fairly argue, during the guilt or punishment stage, that the defendant

                                              9
       denied responsibility because he testified to an alibi or he claimed that the
       deceased died as the result of an accident. Simply pleading not guilty and
       demanding that the State prove its case neither accepts nor denies
       responsibility. Thus, the State could not argue, at either the guilt or
       punishment stage, that the defendant denied responsibility for the crime
       simply because he pled not guilty. That would be an impermissible
       comment on the failure to testify.

       ....

       On the other hand, comments about the failure to testify are permissible if
       they are a “fair response” to the defendant’s claims or assertions. In United
       States v. Robinson, [485 U.S. 25, 34 (1988)] the Supreme Court approved
       the prosecutor’s argument—“[the defendant] could have taken the stand
       and explained it to you, anything he wanted to. The United States of
       America has given him, throughout, the opportunity to explain”—because it
       was in response to the defense closing argument that the government had
       not allowed the defendant to tell his side of the story.

Randolph, 353 S.W.3d at 891–93 (emphasis added and footnotes omitted). The Court

went on to hold that the trial court did not err in denying the appellant’s objection to the

prosecutor’s comment because the comment was a fair summary of the defendant’s guilt-

innocence testimony, in which he testified to an alibi defense. Id. at 895 (noting that “the

prosecutor may comment upon the testimony actually given during the guilt stage and

that is not construed as a comment on the defendant’s choice to remain silent during the

punishment stage”).

       Here, Garza elected not to testify at either phase of trial. Moreover, he did not

argue, explicitly or implicitly, that he had not been allowed to tell his side of the story.

Accordingly, the prosecutor’s comment cannot be considered a “fair response” to any

claims or assertions made by the defense. Cf. id.; Robinson, 485 U.S. at 32 (“[W]here as

in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair

response to a claim made by defendant or his counsel, we think there is no violation of

the privilege.”). The comment, instead, more closely resembles the type of remark which


                                            10
the Randolph Court set forth as a hypothetical example of an improper comment on the

defendant’s right not to testify. See 353 S.W.3d at 893.

       Assuming, without deciding, that the trial court erred in denying Garza’s objection

and request for an instruction to disregard, we proceed to consider whether the presumed

error would require reversal. See TEX. R. APP. P. 44.2. “When a prosecutorial remark

impinges upon an appellant’s privilege against self-incrimination under the constitution of

Texas or of the United States, it is error of constitutional magnitude.” Snowden v. State,

353 S.W.3d 815, 818 (Tex. Crim. App. 2011). Constitutional error is reversible “unless

the court determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” TEX. R. APP. P. 44.2(a). In making this determination, we

consider, among other things, “the nature of the error (e.g., erroneous admission or

exclusion of evidence, objectionable jury argument, etc.), whether it was emphasized by

the State, the probable implications of the error, and the weight the jury would likely have

assigned to it in the course of its deliberations . . . .” Snowden, 353 S.W.3d at 822.

       Garza contends that the trial court’s ruling “communicated to the jury that

considering [his] decision not to testify and take responsibility were permissible areas of

consideration for them” and that “the only remaining possibility of salvaging this error in

the face of the trial court’s ruling would have been to grant [his] request for mistrial.”

       We disagree. Although the trial court refused Garza’s request to instruct the jury

to disregard the comment, it did immediately instruct the jury that it must not take Garza’s

decision not to testify as a circumstance against him in its deliberations. See Gamboa v.

State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (“Instructions to the jury are generally

considered sufficient to cure improprieties that occur during trial. And we generally



                                              11
presume that a jury will follow the judge’s instructions.” (Footnotes omitted)).7 The jury

was also so instructed in the punishment charge. Additionally, the prosecutor did not

refer to or emphasize the improper comment at any other point during the punishment

phase. Finally, we note that the prison term assessed by the jury was substantially shorter

than the maximum 20-year prison term requested by the State, and is instead closer to

the minimum punishment for a second-degree felony.                        See TEX. PENAL CODE ANN.

§ 12.35(a) (West, Westlaw through 2013 3d C.S.) (providing that a second-degree felony

is punishable by two to twenty years’ imprisonment). For these reasons, we find beyond

a reasonable doubt that any error did not contribute to the jury’s punishment

determination. See TEX. R. APP. P. 44.2(a). For the same reasons, we conclude that the

trial court did not abuse its discretion in denying Garza’s motion for mistrial. See Archie,

340 S.W.3d at 738.

        Garza’s first issue is overruled.

B.      Evidentiary Rulings

        By his remaining issues, Garza challenges evidentiary rulings made by the trial

court. We review such rulings for abuse of discretion. Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009). In conducting our review, we view the record in the light



        7  Garza cites case law stating that “the adverse effect of any reference to the accused’s failure to
testify is not generally cured by an instruction to the jury.” Johnson v. State, 611 S.W.2d 649, 650 (Tex.
Crim. App. 1981); Overstreet v. State, 470 S.W.2d 653, 655 (Tex. Crim. App. 1971). However, in Waldo v.
State, the court of criminal appeals observed that
        the . . . presumption that an instruction generally will not cure comment on failure of the
        accused to testify . . . has been eroded to the point that it applies only to the most blatant
        examples. Otherwise, the Court has tended to find the instruction to have force.
746 S.W.2d 750, 754 (Tex. Crim. App. 1988); accord Moore v. State, 999 S.W.2d 385, 406 (Tex. Crim.
App. 1999); Dinkins v. State, 894 S.W.2d 330, 359 (Tex. Crim. App. 1995); Williams v. State, 417 S.W.3d
162, 176 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). The comment at issue here was not so “blatant”
such that the trial court’s instruction would be ineffective to cure any harm.

                                                     12
most favorable to the trial court’s conclusion and reverse only if that conclusion is outside

the zone of reasonable disagreement. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.

App. 2006).

       1.      Wadkins and Edwards

       By his second issue, Garza contests the admission of testimony by Wadkins and

Ronnie Edwards, a veterinarian, regarding the condition of the horses. He contends that

it was error to allow those witnesses to testify as experts because they were not disclosed

as experts twenty days in advance of trial as required by a discovery order previously

rendered by the trial court. He argues that the trial court should have excluded the

testimony or granted either a Daubert/Kelly hearing8 or voir dire examination “before

allowing these witnesses to testify in an expert capacity.”

       We disagree that the trial court erred. Under Texas Rule of Evidence 701, a lay

witness may provide opinion testimony that is “(a) rationally based on the witness’s

perception; and (b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue.” TEX. R. EVID. 701. Here, Edwards testified that, based on

blood tests and physical examinations that he administered, he assessed the horses’

physical condition on a recognized zero-to-ten scale, with zero being “a horse that died

from malnutrition,” five being “perfect” and in “[l]ean racing condition,” and ten being “one

that’s died from being too fat.” He stated that, of the horses found in Garza’s trailer, “one

was a five, one was a four, and one was a three.” Wadkins opined that the horses were

“malnourished” and in “very poor shape.” The opinions of both witnesses as to the horses’




       8 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kelly v. State, 824

S.W.2d 568, 573 (Tex. Crim. App. 1992).

                                                13
condition were rationally based on their perceptions and were helpful to determining a

fact at issue—i.e., whether Garza was truthful when he told Wadkins that the horses were

to be sold for barrel racing. Accordingly, the testimony was admissible as lay opinion

testimony under rule 701, and the trial court did not err in overruling Garza’s objection.9

Garza’s second issue is overruled.

        3.      William Lee Carter

        By his third issue, Garza contends that the trial court erred by excluding the

testimony of William Lee Carter, Ph.D., a psychologist, “regarding [Garza]’s diminished

mental capacity.” Carter testified before the jury at the guilt-innocence phase that he was

appointed by the trial court, at defense counsel’s request, to determine whether Garza is

competent to stand trial. After a competency exam, tests, and a “pretty extensive clinical

interview,” Carter determined that Garza is competent to stand trial. Carter stated that he

also administered an IQ test called the Wechsler Abbreviated Scale of Intelligence.

According to Carter, a score of 85 to 115 is considered the normal range on that test.

Garza scored an 86 on the “verbal scale, which takes into account vocabulary and verbal

reasoning,” and 112 on the “performance scale,” which is “non-verbal reasoning.”

Garza’s “full scale IQ score”—i.e., the average of the verbal and performance scales—

was 99. Carter stated that, according to the test, Garza “has a good, solid IQ.” The State

objected to this testimony on relevance grounds and the trial court sustained the

objection.


        9  On appeal, Garza does not discuss whether Edwards’s and Wadkins’s testimony actually
constituted expert testimony. Instead, he discusses solely whether the State acted “willfully” in failing to
timely disclose the identity of the witnesses before trial. See Oprean v. State, 201 S.W.3d 724, 726 (Tex.
Crim. App. 2006) (“Evidence willfully withheld from disclosure under a discovery order should be excluded
from evidence.”). Because the discovery order referenced by Garza did not require any disclosure of lay
witnesses, the State did not violate the discovery order.

                                                    14
       Outside the presence of the jury, Carter proffered additional testimony. He stated

that Garza is “depressed” and, as a result, “had some problems with concentration.”

When asked whether it was significant that Garza had a “wide split” in his scores on the

verbal and performance scales of the IQ test, Carter stated:

       Uh, it’s considered a statistically significant difference, meaning, uh, the
       likelihood of a broad difference in verbal and nonverbal cognitive function
       is, you know, in his case, probably less than five percent or even one
       percent of cases would you see something like that without some kind of
       explanation for that difference. So you would look for things like learning
       disabilities or lack of exposure to environmental enrichment or
       psychological disturbance. And depression is what I diagnosed him as
       having as possible causal factors for that weak in verbal capacity.

       ....

       [I]f a person is raised in a world that’s impoverished in one way or another
       or in a variety of ways, that’s what I’m speaking of when I speak of a lack of
       enrichment exposure. In his situation, he did grow up, uh, in either a poverty
       or near poverty level existence to my understanding. He’s had some
       significant life stressors that probably have made him depressed since
       childhood. He experienced some pretty significant deaths and traumas
       within his family, even as a young boy.

Carter agreed with defense counsel that Garza “lives [in] an emotional fog.” He continued

his testimony as follows:

       [M]y impression of Mr. Garza is that he tends to just kind of move from one
       day to the next without a lot of preplanning or thinking. Doesn’t mean that
       he’s incapable of planning or thinking but by default he just kind of drifts
       from one day to the next.

       ....

       He’s not a—an assertive man. He keeps to himself. He doesn’t talk a whole
       lot about his personal business to other people. He’s not aggressive by
       nature, although I understand that he has been episodically aggressive in
       the past, doesn’t ask a lot of questions, uh, just simply, you know, lives from
       day to day. So, yes, he could be taken advantage of by somebody who had
       a high need for control.

The trial court sustained the State’s objection to this testimony.


                                             15
       Evidence is relevant, and therefore generally admissible, “if (a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” TEX. R. EVID. 401, 402.

       In support of his argument that this ruling was erroneous, Garza directs us to Ruffin

v. State, where testimony by the same psychologist was at issue. 270 S.W.3d 586 (Tex.

Crim. App. 2008). There, the appellant was charged with aggravated assault after he

shot at ten police officers during a “standoff” at his property. Id. at 587. At trial, the

appellant “contended that he was suffering from severe delusions and believed that he

was shooting at Muslims, not police officers.” Id. Defense counsel proffered testimony

by Carter that, on the day of the standoff, the appellant “was suffering from psychotic

symptoms such as hearing or seeing things that did not exist,” “was not fully aware of the

effects his behavior was having on other people,” and had a “diminished capacity” to

make rational judgments. Id. at 590. Carter stated that, because of mental illness and

delusions, the appellant did not know that he was shooting at law-enforcement officers.

Id. The trial court excluded Carter’s testimony but the Texas Court of Criminal Appeals

reversed, holding that the testimony is “clearly relevant to the issue of whether appellant

intended to shoot at police officers during the standoff or whether, because of a mental

disease and the delusions that he suffered as a result of that disease, he believed that he

was shooting at Muslims or some other figment of his mind.” Id. at 596. The Court noted

that “affirmative defenses, other than insanity, based on mental disease, defect, or

abnormality . . . do not exist in Texas.” Id. at 593 (“Insanity is the only ‘diminished

responsibility’ or ‘diminished capacity’ defense to criminal responsibility in Texas.”).

However, because “mental diseases or defects may affect a person’s perception of the



                                            16
world,” evidence of a defendant’s “history of mental illness” may be considered to the

extent it “directly rebuts the particular mens rea necessary for the charged offense.” Id.

at 588, 593, 596.

       We find Ruffin distinguishable. In that case, Carter would have testified that the

appellant suffered from delusions on the day of the alleged crime which caused the

appellant to be unaware that he was shooting at police officers. This testimony, if

admitted, would have specifically and directly negated the mens rea required to convict.

See id. at 594 (noting that the State had the burden to prove “that the defendant intended

to shoot a police officer, not a trespasser or Muslim”). But the Ruffin Court acknowledged

that expert testimony regarding a defendant’s history of mental illness “may . . . be

excluded if it does not truly negate the required mens rea,” and it cited several cases

illustrating that point. Id. at 596 n.32 (citing United States v. Brown, 326 F.3d 1143, 1148

(10th Cir. 2003) (finding trial court properly excluded expert psychiatric testimony that,

because of post-traumatic-stress syndrome and chemical dependency, defendant was

unable to make “correct choices”; testimony did not rebut mens rea in prosecution for

conspiracy to possess methamphetamine); United States v. Cameron, 907 F.2d 1051,

1067–68 (11th Cir. 1990) (stating “[e]vidence offered as ‘psychiatric evidence to negate

specific intent’ is admissible . . . when such evidence focuses on the defendant’s specific

state of mind at the time of the charged offense,” but holding that defendant failed to

demonstrate how her expert’s generalized psychiatric testimony would negate intent in

drug-trafficking prosecution); United States v. White, 766 F.2d 22, 24–25 (1st Cir. 1985)

(upholding exclusion of expert psychiatric testimony “to the effect that, because of the

influence exerted upon her by her mother, she was unable to resist her mother’s request



                                            17
for assistance, and was thus compelled to aid her in her drug dealing” as merely evidence

of “diminished capacity”)).

       Here, Carter would have testified that Garza “could be taken advantage of by

somebody who had a high need for control,” but he did not opine as to Garza’s state of

mind at the time of the alleged crime. Accordingly, the proffered testimony did not “directly

rebut” the mens rea required to convict. See id. at 588; see also TEX. HEALTH & SAFETY

CODE ANN. § 481.121(a) (defining “knowingly or intentionally” as the required mens rea

for possession of marihuana); id. § 481.001(38) (West, Westlaw through 2013 3d C.S.)

(“‘Possession means actual care, custody, control, or management.”); TEX. PENAL CODE

ANN. § 6.03(a) (West, Westlaw through 2013 3d C.S.) (“A person acts intentionally . . . with

respect to the nature of his conduct . . . when it is his conscious objective or desire to

engage in the conduct . . . .”); id. § 6.03(b) (“A person acts knowingly . . . with respect to

the nature of his conduct . . . when he is aware of the nature of his conduct . . . .”).

Moreover, although Garza’s defensive theory was that he was unaware that the

marihuana was in his trailer, there was no evidence indicating that any person “t[ook]

advantage” of him such that he would be unable to form the requisite intent. See Mays

v. State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010) (holding that the trial court “was

not required to admit any expert testimony concerning appellant’s mental illness during

the guilt stage because it did not directly rebut his culpable mens rea” and distinguishing

Ruffin in part on the basis that “[a]ppellant offered no evidence to suggest that he did not

intend to shoot a person”).

       We conclude that the trial court did not abuse its discretion in excluding this

testimony as irrelevant. Garza’s third issue is overruled.



                                             18
        4.         Imelda Garza

        By his fourth issue, Garza contends that the trial court erred by excluding the

testimony of his sister, Imelda Garza (“Imelda”), at the guilt-innocence phase of trial. In

a proffer of testimony outside the presence of the jury, Imelda stated that she lived with

Garza in Zapata, Texas, until he turned eighteen years old. She stated that Garza has

often had to borrow money in the past, that he has an inconsistent work history, and that

he is susceptible to peer pressure. She stated that, to her knowledge, Garza has never

been affiliated with a gang and she agreed that he “does not live an extravagant life.” She

stated that, every time he had to travel to McLennan County to appear in court, “we would

all pitch in for the hotel, the gas, the food.” Imelda further stated that Garza’s absence at

the October 21, 2013 court setting was attributable to the fact that Garza’s father

inadvertently took Garza’s keys and left town. The State objected to Imelda’s testimony

on relevance grounds. The trial court sustained the objection except as to Imelda’s

testimony regarding why Garza failed to appear at the court setting. Imelda was then

permitted to testify before the jury as to that issue only.10

        Garza contends on appeal that the remainder of Imelda’s testimony was

admissible (1) as “character evidence in the form of opinion/reputation establishing that

[Garza] is not a trafficker of narcotics and is not known to transport narcotics,” and (2) as

“an impeachment witness” to rebut the “inference created” by Campbell that Garza’s

“ability to post a high amount of bond tends to show that he is engaging in illegal activity.”11


        10  Imelda also testified before the jury that it “would have been extremely easy” for Garza to have
crossed into Mexico from their home in Zapata. Further, when defense counsel asked “Is your brother a
drug trafficker?”, Imelda replied, “No.” The trial court sustained the State’s objections to this testimony and,
pursuant to the State’s request, instructed the jury to “disregard the last statement of the witness for any
purpose whatsoever.”
        11   Garza also asserts that Imelda’s testimony was admissible “[t]o rebut evidence of flight elicited”

                                                       19
        Generally, “[e]vidence of a person’s character or character trait is not admissible

to prove that on a particular occasion the person acted in accordance with the character

or trait.” TEX. R. EVID. 404(a)(1). However, “[i]n a criminal case, a defendant may offer

evidence of the defendant’s pertinent trait . . . .” TEX. R. EVID. 404(a)(2)(A). “When

evidence of a person’s character or character trait is admissible, it may be proved by

testimony about the person’s reputation or by testimony in the form of an opinion.” TEX.

R. EVID. 405(a)(1). “In the guilt stage of a criminal case, a witness may testify to the

defendant’s character or character trait only if, before the day of the offense, the witness

was familiar with the defendant’s reputation or the facts or information that form the basis

of the witness’s opinion.” TEX. R. EVID. 405(a)(2).

        First, although Imelda opined about her brother’s lifestyle, she was not asked

during her proffer whether Garza has a reputation for not being a drug trafficker or

whether, in her opinion, Garza is not a drug trafficker.                     Garza did not provide any

reputation or opinion testimony; accordingly, her testimony was not admissible as

character evidence. See TEX. R. EVID. 405(a)(1).12

        Second, we disagree that Imelda’s excluded testimony was admissible to rebut an

“inference created” by Campbell.                 On direct examination, Campbell identified a

“Certificate of Failure to Appear” dated October 21, 2013, evidencing that Garza failed to

appear in court on that date. The certificate was entered into evidence. Campbell then

testified on cross-examination as follows:


from Campbell. However, as noted, Imelda was permitted to testify as to the reason Garza failed to appear
at the October 21, 2013 setting.
        12 Although the State’s only objection to Imelda’s testimony was on relevance grounds, we must
affirm an evidentiary ruling if it “was correct on any theory of law applicable to the case, in light of what was
before the trial court at the time the ruling was made . . . .” Sauceda v. State, 129 S.W.3d 116, 120 (Tex.
Crim. App. 2004).

                                                      20
       Q [Defense counsel]      Okay. And we—there’s a note on that exhibit about
                                the cost of the bond, which I think was $100,000?

       A [Campbell]             Yes, sir.

       Q                        So when he was originally arrested May 17th, 2012,
                                to get out of jail someone had to post a bond either
                                equivalent to or a portion of ten—of $100,000; is
                                that correct?

       A                        According to that, yes.

       Q                        Okay. And you know often bondsmen don’t require
                                the whole amount.

       A                        Yes, sir.

       Q                        In fact, the purpose of having a bondsman, is the
                                bondsman kind of becomes like a bank. The
                                bondsman stands and says, I’ll post the bond. You
                                start making payments to me for whatever
                                percentage of that bond?

       A                        Yes, sir.

       Q                        Okay. And you don’t know how he made the bond,
                                who paid the bond for him?

       A                        No, sir.

       At trial, in urging the admissibility of Imelda’s testimony, defense counsel argued

that the State “wanted that [exhibit] in [evidence] because the implication is he’s got a lot

of money.” However, Imelda did not rebut any fact directly testified to by Campbell and

she did not state who paid Garza’s bond. Moreover, although the prosecutor offered the

“Certificate of Failure to Appear” into evidence, he did not query Campbell on direct

examination regarding the amount of the bond; instead, defense counsel drew attention

to the amount of the bond. And, Campbell agreed with defense counsel that defendants

typically do not pay the entire amount of the bond; rather, they make “payments” to the




                                             21
bondsman toward a certain “percentage” of the bond.                        We therefore disagree that

Campbell’s testimony gave rise to any inference that Garza has “a lot of money.”

        Even if Campbell’s testimony did give rise to such an inference, and even if

Imelda’s testimony that Garza frequently had to borrow money and did not lead an

“extravagant” lifestyle was admissible to rebut that inference, we find that any error in

excluding the testimony would be harmless. The State did not mention the amount of the

bond at any point during trial, either in questions or argument; and it never suggested to

the jury, either explicitly or implicitly, that Garza must be a drug trafficker because of his

wealth. Instead, during closing argument, the prosecutor stated: “We don’t believe he’s

a criminal mastermind. We don’t believe he lives in a 10,000 square foot house in

L[a]redo. We believe he was the driver and he knew exactly what he was doing.” The

State’s case was based entirely on the facts surrounding the traffic stop, including Garza’s

furtive demeanor and the fact that the key to the compartment where the marihuana was

located was found attached to the key to the truck which Garza was driving. In light of

these considerations, we find beyond a reasonable doubt that the exclusion of Imelda’s

testimony did not contribute to Garza’s conviction. See TEX. R. APP. P. 44.2(b).13


        13 The parties do not address which harm standard would apply if we found error in the exclusion
of Imelda’s testimony. The Texas Court of Criminal Appeals has held:
        The erroneous exclusion of evidence offered under the rules of evidence generally
        constitutes non-constitutional error and is reviewed under Rule 44.2(b). The exception is
        when erroneously excluded evidence offered by the criminal defendant “forms such a vital
        portion of the case that exclusion effectively precludes the defendant from presenting a
        defense.” Exclusion of evidence might rise to the level of a constitutional violation if: (1) a
        state evidentiary rule categorically and arbitrarily prohibits the defendant from offering
        otherwise relevant, reliable evidence vital to his defense; or (2) a trial court’s clearly
        erroneous ruling results in the exclusion of admissible evidence that forms the vital core of
        a defendant’s theory of defense and effectively prevents him from presenting that defense.
        In such a case, Rule 44.2(a), the standard for constitutional errors, would apply.
Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (footnotes omitted). We assume for purposes
of this opinion, but do not decide, that any error in excluding Imelda’s testimony would be constitutional in
nature. See TEX. R. APP. P. 44.2(a).

                                                     22
       Garza’s fourth issue is overruled.

                                     III. CONCLUSION

       Having overruled Garza’s issues on appeal, we affirm the trial court’s judgment.



                                                 DORI CONTRERAS GARZA,
                                                 Justice

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

Delivered and filed the
21st day of May, 2015.




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