                              NUMBER 13-14-00137-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


AROLDO HUMBERTO CADRIEL,                                                                Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 404th District Court
                            of Cameron County, Texas.


                              MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Longoria
                 Memorandum Opinion by Justice Rodriguez
        A jury found appellant Aroldo Humberto Cadriel guilty of murder by shooting Brisna

Mireles with a firearm.1 See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw through


       1 As this is a memorandum opinion and the parties are familiar with the facts, we will not recite

them here except as necessary to advise the parties of the Court's decision and the basic reasons for it.
See TEX. R. APP. P. 47.4.
2015 R.S.). The trial court sentenced him to life in the Texas Department of Criminal

Justice–Institutional Division. By six issues, Cadriel contends: (1) the trial court erred

in refusing to recuse or disqualify the District Attorney who magistrated Cadriel; (2) the

trial court abused its discretion when it did not, sua sponte, conduct an informal inquiry

into his competency; (3) the trial court erred in denying his motion to suppress because

probable cause to support a search warrant was based on illegal or “tainted” information;

(4) the trial court abused its discretion when it admitted the State’s ballistics expert’s

testimony because it was unreliable; (5) the trial court erred in failing to grant a mistrial

because of the “many times that defense counsel’s motion in limine was violated”; and

(6) the State violated his due process rights and the trial court erred in not granting a

mistrial when the State did not produce a video statement. We affirm.

                I. RECUSAL OR DISQUALIFICATION OF THE DISTRICT ATTORNEY

        By his first issue, Cadriel contends that the trial court erred when it denied his

motion to recuse or to disqualify Cameron County District Attorney Luis V. Saenz because

he “magistrated” Cadriel on the day he was arrested.2

A.      Cadriel’s Motion, the State’s Response, and the Trial Court’s Ruling

        In his motion to recuse or disqualify the district attorney, Cadriel set out the

following undisputed facts: (1) Cadriel was charged with a murder that occurred on or

about March 31, 2012; (2) he was arrested on April 12, 2012: (3) Cadriel was booked into

the Cameron County jail and arraigned; (4) Saenz magistrated Cadriel; and (5) after being



       2 The duties of a magistrate are set out in article 15.17 of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art 15.17 (West, Westlaw through 2015 R.S.).

                                                   2
elected District and County Attorney for Cameron County, Saenz was Cadriel’s

prosecuting attorney. Cadriel argued that Saenz should have recused himself because

“Saenz is conflicted from now prosecuting a defendant over whom he presided over [sic]

at the defendant’s magistration, as a Judge.” He also asserted that the trial court should

disqualify Saenz because he would be a material witness in his case, testifying on his

behalf regarding “(1) if the defendant was magistrated; (2) was the defendant advised of

his Miranda warning rights; (3) whether the defendant stated he understood those rights

and if it appeared that he understood those rights; (4) and any and all other matters that

may relate[ ] to defendant’s magistration.”

       The State responded, arguing that Saenz “ha[d] chosen not to recuse himself or

the District Attorney’s Office” because no conflict of interest existed. And Cadriel alleged

only a perceived possibility of a conflict of interest—that Saenz was a material witness

who could be called to testify as to the magistration of Cadriel. See Gilbert McClure

Enters. v. Burnett, 735 S.W.2d 309, 311 (Tex. App.—Dallas 1987, orig. proceeding)

(stating that disqualification is not appropriate when opposing counsel merely announces

his intention to call the attorney as a fact witness; there must be a genuine need for the

attorney’s testimony that is material to the opponent’s client). The State also argued that

Cadriel presented no evidence that Saenz’s contemplated testimony on the issue of

Cadriel’s initial arraignment was necessary and that it went to an essential fact in the

case. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a), reprinted in TEX. GOV’T CODE

ANN., tit. 2, subtit. G app. A (Tex. State Bar R., art. X, § 9) (providing that, with exceptions

that do not apply in this case, “[a] lawyer shall not accept or continue employment as an


                                               3
advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the

lawyer knows or believes that the lawyer is or may be a witness necessary to establish

an essential fact on behalf of the lawyer's client”). Finally, the State agreed to stipulate

to the following: (1) Saenz magistrated Cadriel; (2) Cadriel was advised of his rights; (3)

Cadriel did not make any statement of which the State was aware either during the initial

arraignment hearing before the magistrate or since magistration; and (4) the hearing was

estimated to have taken no more than three or four minutes.

       After hearing the parties’ arguments, the trial court denied Cadriel’s motion.

However, because the ruling allowed for the Cameron County District Attorney’s

continued prosecution of Cadriel, the trial court informed Cadriel that it “left the door open”

should he feel compelled to reurge recusal or disqualification. Cadriel did not reurge his

motion during the trial, and neither the State nor Cadriel called Saenz as a witness.

B.     Applicable Law and Standard of Review

       “[T]he district attorney must initiate his own recusal.” State of Tex. ex rel. Hill v.

Pirtle, 887 S.W.2d 921, 939 (Tex. Crim. App. 1994) (en banc). “A prosecutor's refusal to

recuse himself from the case cannot be corrected because the trial court has no authority

to force a recusal.” Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005).

However, when a prosecutor refuses to voluntarily recuse himself, the trial court may

disqualify the prosecutor, but only when the disqualification is based on a conflict of

interest that rises to the level of a due-process violation. State ex rel. Young v. Sixth

Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 211 n.15 (Tex. Crim. App.

2007) (orig. proceeding); Pirtle, 887 S.W.2d at 927 (same). Reflective of such conflicts


                                              4
are certain statutory provisions under which the trial court can disqualify the prosecutor.

For example, the court may disqualify the prosecutor for being previously employed

adversely to the State in the pending matter. See TEX. CODE CRIM. PROC. ANN. art. 2.01

(West, Westlaw through 2015 R.S.); Landers v. State, 256 S.W.3d 295, 297–310 (Tex.

Crim. App. 2008) (concluding that the trial court did not abuse its discretion when it denied

the defense’s motion to disqualify a prosecutor who had represented the defendant in a

prior alcohol-related offense that was similar to, but not the same, as the pending charge).

And it may disqualify the prosecutor for instances of incompetency, official misconduct,

or intoxication. See TEX. LOC. GOV’T CODE ANN. § 87.013 (West, Westlaw through 2015

R.S.).

         Disqualification of counsel is a severe remedy. See Spears v. Fourth Court of

Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). In order to prevent such

misuse of the rule as a dilatory trial tactic, the trial court should require the party seeking

disqualification to demonstrate actual prejudice to himself resulting from the opposing

lawyer’s service in the dual roles. See id.; Ayres v. Canales, 790 S.W.2d 554, 558 (Tex.

1990) (orig. proceeding) (citing TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08 cmt. 10).

         We review the trial court’s decision of whether to disqualify a prosecutor for an

abuse of discretion. Landers, 256 S.W.3d at 303. Under that analysis, the trial court

abuses its discretion only when the decision lies “outside the zone of reasonable

disagreement.” Id.




                                              5
C.     Discussion

       In sum, Cadriel argues that Saenz should have recused himself and that the trial

court should have disqualified Saenz because (1) Saenz, as magistrate, and Saenz, as

prosecutor, creates a conflict, and (2) being the magistrate made Saenz a witness in this

case. We disagree.

       Cadriel has not shown actual prejudice from an alleged disciplinary rule violation

or any violation of his due-process rights by Saenz serving in dual roles—as his

magistrate and then as the prosecuting attorney in this case. See Spears, 797 S.W.2d

at 656; Ayres, 790 S.W.2d at 558; see also TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08

cmt. 10. The record does not reveal a conflict of interest, if any, that rises to the level of

a due-process violation. See Young, 236 S.W.3d at 211 n.15; Pirtle, 887 S.W.2d at 927

(same). Instead, we agree with the State and conclude that no conflict of interest exists.

A perceived or potential conflict is not enough. See Gilbert McClure Enters., 735 S.W.2d

at 311. And no statutory grounds for disqualification were shown. Finally, there is no

factual basis for a disqualification. Cadriel provides no record citations, and we find

none, where the jury heard evidence or even argument concerning Saenz’s role as

magistrate. Saenz did not testify as a witness; neither the State nor Cadriel called him

to testify.   Cadriel presented no evidence that Saenz’s contemplated testimony on

Cadriel’s initial arraignment was necessary or that it was material and went to an essential

fact in this case. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). Moreover, Cadriel

provides no citations to the record, and we find none, to indicate that he made any

statement during the initial arraignment hearing that was later used against him at trial.


                                              6
And, among other things, the State stipulated that Cadriel made no statements at the

arraignment or subsequent to it.

       Based on the above, the trial court’s decision did not lie outside the zone of

reasonable disagreement, and so we conclude that the trial court did not abuse its

discretion. See Landers, 256 S.W.3d at 303. We overrule Cadriel’s first issue.

                   II. INFORMAL INQUIRY INTO CADRIEL’S COMPETENCY

       Cadriel argues by his second issue that the trial court abused its discretion by

failing to conduct, sua sponte, an informal inquiry to determine whether evidence existed

to justify a formal competency trial. In response, the State asserts that the trial court

conducted an informal competency inquiry, and therefore, the trial court did not abuse its

discretion. We agree with the State.

A.     Standard of Review and Applicable Law

       This Court reviews a trial court’s decision regarding an informal competency

inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.

App. 2009), superseded by statute on other grounds as stated in Turner v. State, 422

S.W.3d 676, 692 n.31 (Tex. Crim. App. 2013); Jackson v. State, 391 S.W.3d 139, 141

(Tex. App.—Texarkana 2012, no pet.); see also Luna v. State, 268 S.W.3d 594, 600 (Tex.

Crim. App. 2008). A “person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person's lawyer with a reasonable degree

of rational understanding; or (2) a rational as well as factual understanding of the

proceedings against the person.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West,

Westlaw through 2015 R.S.). “On suggestion that the defendant may be incompetent to


                                            7
stand trial, the court shall determine by informal inquiry whether there is some evidence

from any source that would support a finding that the defendant may be incompetent to

stand trial.” Id. art. 46B.004(c) (West, Westlaw through 2015 R.S.).    Under the present

statute, “[a] suggestion of incompetency is the threshold requirement for an informal

inquiry” regarding competency. Id. art. 46B.004(c–1); see Turner, 422 S.W.3d at 692.

       An informal inquiry does not have to be exhaustive. It may be satisfied when the

trial court poses simple questions to the defendant and/or defense counsel regarding the

defendant’s competency. See generally Luna, 268 S.W.3d at 598–600; Jackson, 391

S.W.3d at 142; Gray v. State, 257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008, pet.

ref’d); see also Stevenson v. State, No. 05-12-01668-CR, 2014 WL 3555767, at *2 (Tex.

App.—Dallas July 17, 2014, pet. ref’d) (not designated for publication); Coyt-Sowells v.

State, No. 14–11–00986–CR, 2013 WL 1499579, at *1 (Tex. App.—Houston [14th Dist.]

Apr. 11, 2013, no pet.) (mem. op., not designated for publication).

B.     Discussion

       The record in this case shows Cadriel’s trial counsel asked to make a record with

Cadriel at a pre-trial status hearing.   The trial court granted his request.     Through

counsel’s questions and Cadriel’s answers, counsel brought to the trial court’s attention

a disagreement he and Cadriel had regarding counsel’s desire to request two expert

witnesses, one to investigate the possibility of an insanity defense and another to

investigate issues related to ballistics. Cadriel agreed with counsel that he suffered from

post-traumatic stress disorder and had been diagnosed with “some bipolar issues.”

However, when asked if he wished to raise “any kind of an insanity defense, not


                                            8
competent to stand trial defense,” or “any kind of diminished capacity” defense, Cadriel

responded, “No.” Cadriel agreed that he made the decision freely and voluntarily and

without pressure. After testifying that he understood that the State would be asked to

absorb the cost of any defense expert, Cadriel again agreed that he did not want to raise

any type of “mental defense.”

       Counsel also asked questions of Cadriel about the report prepared by the State’s

ballistics expert, which concluded that the ballistics tool marking on a fragment of a bullet

recovered from the victim matched that of a bullet fired from a handgun attributed to

Cadriel. When asked whether he wanted to hire a defense expert to controvert this

evidence, Cadriel testified that he wanted “[t]o move on with the trial and not to hire no

one.” According to his testimony, no one pressured or forced him to make that decision.

Although counsel told Cadriel that, without such an expert, it would be hard to controvert

the State’s evidence, he remained firm in his decision.

       After defense counsel concluded his questioning, the trial court posed a series of

background questions to Cadriel regarding his incarceration, employment history,

income, education, and military experience. The trial court also discussed with Cadriel

the importance of matters raised by counsel, including the ballistics and mental

competency issues. Cadriel informed the trial court that he based his decision regarding

the ballistics expert on more than finances and testified, “there are about three issues

pertaining to that. . . . I want to just move on.” When the trial court explained to Cadriel

that his counsel was also suggesting that the court might want some analysis or testing

of Cadriel’s mental competence and asked Cadriel if he was saying he did not want to


                                             9
pursue that, he answered, “Yes, Your Honor. That’s my—that’s my answer and there

are several reasons behind it.”

        Because Cadriel referenced reasons or issues supporting his answers, the trial

court asked Cadriel’s counsel to talk with Cadriel in private. The court explained that this

would give Cadriel an opportunity to discuss those matters with his attorney. Following

an off-the-record conference with his client, counsel reported the following to the court:

“In speaking with Mr. Cadriel privately in the jury room, Your Honor, with respect to

ballistics, requesting our ballistics expert and any kind of a psychiatric expert, Mr. Cadriel

continues to insist he does not want either, he wants to proceed forward to trial as soon

as possible.”

        We conclude that the questions asked of Cadriel were sufficient to constitute an

informal inquiry into Cadriel’s competence. See Luna, 268 S.W.3d at 598–600; Jackson,

391 S.W.3d at 142; Gray, 257 S.W.3d at 829. And, after Cadriel had testified, the trial

court specifically gave defense counsel an opportunity to privately discuss with Cadriel

his understanding of these matters and his desires. Under these circumstances, the trial

court's own observations coupled with its questions to Cadriel and to counsel that related

to Cadriel’s competency satisfied the requirement of an informal inquiry.3 The court did

not abuse its discretion in doing so. See Montoya, 291 S.W.3d at 426. We overrule

Cadriel’s second issue.




         3
           By his second issue, Cadriel complains only that the trial court failed to conduct an informal
inquiry. He does not complain in the alternative that if we find the trial court conducted an informal inquiry
it should have further conducted a formal inquiry pursuant to article 46B.005. See TEX. CODE CRIM. PROC.
ANN. art. 46B.005(a) (West, Westlaw through 2015 R.S.). So that issue is not before the Court. See TEX.
R. APP. P. 47.1.
                                                     10
                                III. MOTION TO SUPPRESS

       By his third issue, Cadriel contends that the trial court erred in denying his motion

to suppress evidence seized from his home because probable cause for the search

warrant was based on his illegally seized phone records. Cadriel alleges that Special

Agent Luther Selby with ICE-Homeland Security Investigations violated section 2702 of

the Stored Communications Act (SCA) by requesting the cell phone records without first

obtaining a court order or a warrant authorizing the pinging. See 18 U.S.C.A. § 2702(a–

c) (prohibiting providers from voluntarily disclosing customer records to a governmental

entity unless an exception applies). Cadriel contends that the officers were able to

determine his whereabouts on the day of the murder through the illegally obtained cell

phone records and then included that information in the affidavit used to obtain the search

warrant for his residence. Cadriel asserts, that while the cell phone records were not

admitted as evidence, what was found in his home during that search and what was

admitted as evidence at trial “were the guns seized, one of which was claimed to be the

weapon which fired bullet 18A, one of five bullets found in the victim’s body.” It is the

admission of this evidence that Cadriel attempted to suppress.

A.     Standard of Review and Applicable Law

       We review a trial court's ruling on a motion to suppress under a bifurcated

standard. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Shepherd v.

State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Carmouche v. State, 10 S.W.3d 323,

327 (Tex. Crim. App. 2000). We give the trial court almost complete deference in its

determination of historical facts, especially if they are based on an assessment of


                                            11
credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).

We afford the trial court the same deference in its rulings on the application of the law to

questions of fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor.            Id.   However, for mixed

questions of law and fact that do not fall within that category, a reviewing court conducts

a de novo review. Id.

       We view all of the evidence in the light most favorable to the trial court's ruling.

State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011).            Therefore, the

prevailing party is entitled to “the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence.” Id. Since all evidence

is viewed in the light most favorable to the trial court's ruling, we are obligated to uphold

its ruling on a motion to suppress if that ruling is supported by the record and is correct

under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000) (en banc); Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d

889, 891 (Tex. Crim. App. 1999).

       “Probable cause exists where, under the totality of the circumstances, there is a

fair probability that contraband or evidence of a crime will be found at the specified

location.” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (citing Illinois

v. Gates, 462 U.S. 213, 238 (1983)). When reviewing whether an affidavit for a warrant

provided a basis for finding probable cause, this Court does not consider each fact in

isolation; rather, we must consider the totality of the circumstances. Illinois v. Gates, 462

U.S. 213, 238–39 (1983) (reaffirming “the totality-of-the-circumstances analysis,” and


                                             12
setting out that “the duty of a reviewing court is simply to ensure that the magistrate had

a ‘substantial basis for . . . conclud[ing]’ that probable cause existed”); Rodriguez, 232

S.W.3d at 59–60. While a warrant may not be issued if it is based on illegally obtained

information, “tainted” information will not invalidate an otherwise valid warrant. State v.

Bridges, 977 S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“The

relevant inquiry into probable cause based upon a tainted affidavit is to put aside the

tainted allegations and determine whether the independently acquired and lawful

information clearly established probable cause.”); see Castillo v. State, 818 S.W.2d 803,

805 (Tex. Crim. App. 1991) (“[I]f the tainted information was clearly unnecessary to

establish probable cause for the search warrant, then the defendant could not have been

harmed by the inclusion of the tainted information in the affidavit.”); see also Gates, 462

U.S. at 238.

B.     Discussion

       It is undisputed that Agent Selby did not obtain a warrant or court order to get

Cadriel’s cell phone records. The evidence shows that the provider voluntarily gave this

information to law enforcement, upon the representation that exigent circumstances

existed. See 18 U.S.C.A. § 2702(b)(7)–(8) (setting out that one of the exceptions for

disclosure of communications is exigent circumstances). Yet, even were we to conclude

that exigent circumstances did not exist, that Agent Selby obtained the phone records in

violation of section 2702 of the SCA, and that, because of the violation, the evidence was

improperly obtained, we would still conclude that the trial court did not abuse its discretion

in denying Cadriel’s motion to suppress.


                                             13
       The affidavit signed by Police Chief Patrick Quill and filed in support of the search

warrant follows in its entirety:

              On March 31, 2012, at approximately 8:10 a.m. the body of Brisna
       Mireles was discovered on the eastside of Northbound Frontage Road U.S.
       77, in the Town of Combes, Texas. An autopsy of the body of Brisna
       Mireles revealed the causes of her death to be two gunshot wounds to her
       head, a gunshot wound to her back, a gunshot wound to her right shoulder
       area, and a gunshot wound to her pelvic area. The recovery of three
       projectiles from Brisna Mireles and the recovery of one projectile found in
       the ground within close proximity of her body provide evidence that
       someone likely killed her. The murder of Brisna Mireles is presently under
       investigation by affiant.

              On March 31, 2012, while processing the crime scene, a key to a
       hotel room identified as Hudson House Hotel, located in Harlingen, Texas,
       was discovered a few inches from Brisna Mireles’ body. Combes Police
       Investigator Ricardo Herrera found that the key was registered to room #52
       of the Hudson House Hotel, which was found to be registered to a male
       subject identified as Robert Castillo.

               Shortly thereafter affiant made contact with family members of Brisna
       Mireles who stated that she was last seen with a male subject identified as
       an uncle, AKA “Randy”. A family member provided the cellular telephone
       number . . . which Brisna Mireles was known to contact “Randy”. The
       family member provided a physical description of “Randy” stating he was a
       male subject in his late 50s, gray hair and gray beard. This was the same
       physical description as provided by the hotel manager of the Hudson House
       Hotel of the male subject registered to room #52. A preliminary check of
       the telephone number identified as “Randy’s” revealed that the telephone
       number belonged to the suspected party identified as Aroldo Humberto
       Cadriel date of birth 09/16/1946. Once the telephone number was
       identified as belonging to Aroldo H Cadriel, a photo lineup was prepared
       and shown to witnesses present at the Hudson House Hotel as well as
       several associates and family members of Brisna Mireles. Witnesses at the
       Hudson House Hotel identified Aroldo H. Cadriel as the individual registered
       to room #52 under the name Robert Castillo. Associates and family
       members of Brisna Mireles all identified the individual as the person known
       as “Randy” and numerous associates of Brisna Mireles stated that this was
       not a blood relative of Brisna Mireles but an individual that had a long-
       standing sexual relationship for which Brisna Mireles received monetary
       compensation.


                                            14
             Texas Ranger Mike Ramirez made contact via telephone with Aroldo
      H. Cadriel. Aroldo H. Cadriel met with Ranger Ramirez and affiant and
      stated that he had been with Brisna Mireles on March 30, 2012 for a short
      time, and then dropped her off at her residence in Harlingen, Texas.
      Aroldo H. Cadriel then stated that once Brisna Mireles was returned to her
      residence he returned to his residence located at 4 Crownridge Drive in
      Brownsville, Texas and went to sleep. Aroldo H. Cadriel stated that he did
      not remain in Harlingen, Texas and that he had not rented any hotel rooms
      in the Harlingen area on March 30, 2012. A short time later Ranger
      Ramirez and affiant met with a witness identified as Jacob Vento who stated
      that on March 30, 2012, at approximately 10:00 p.m. Brisna Mireles had
      called him to pick her up at the Hudson House Hotel. Jacob Vento stated
      to Ranger Ramirez and affiant that when he arrived at the hotel he found
      Brisna Mireles outside the hotel and was escorting her to his vehicle when
      he was confronted by Aroldo H. Cadriel in a threatening manner. Jacob
      Vento stated that Aroldo H. Cadriel displayed a handgun and placed the
      firearm against Jacob Vento’s torso and told him to leave the area
      immediately. Jacob Vento stated that both he and Brisna Mireles ran away
      from Aroldo H. Cadriel and fled the area in Jacob Vento’s vehicle.

              On March 31, 2012, Ranger Ramirez interviewed a male subject
      identified as Frank Muniz who stated that he met with Brisna Mireles and a
      male subject who he identified through a photo lineup as being Aroldo H.
      Cadriel at 2:30 a.m. on March 31, 2012 and provided drugs to them. Frank
      Muniz stated that Aroldo H. Cadriel and Brisna Mireles were in a large white
      Ford pickup truck, which matched the description by previous witnesses as
      being used by Aroldo H. Cadriel. A review of telephone tolls place Aroldo
      H. Cadriel in the Harlingen, Texas area beyond 4:00 a.m. March 31, 2012
      rather than at his residence in Brownsville, Texas as he had previously
      stated.

             Affiant believes that the foregoing facts establish probable cause to
      believe that the offense of murder was committed on the eastside of
      Northbound Frontage Road U.S. 77, in the Town of Combes, Texas on or
      about the 31st day of March 2012.

(Italics added.) The italicized portion of the affidavit represents information obtained

from phone records that Cadriel claims were illegally obtained.

      Our review of the affidavit reveals that Quill did reference information obtained from

Cadriel’s cell phone records, which we assume for purposes of this analysis to be illegally


                                            15
obtained or tainted information. Nonetheless, we will “set aside the tainted allegations

and determine whether the independently acquired and lawful” information established

probable cause. Bridges, 977 S.W.2d at 632.

       Based on our de novo review of this issue, which involves mixed questions of law

and fact, see Crain, 315 S.W.3d at 48, we cannot conclude that the tainted information

was necessary to establish probable cause for the search warrant. See Castillo, 818

S.W.2d at 805. Instead, the affidavit referenced additional facts that were otherwise

sufficient to establish probable cause. See id. The affidavit set out that Mireles’s body

was found on March 31, 2012, at approximately 8:10 a.m. Cadriel’s hotel room key was

located inches from Mireles’s body.       Cadriel had a sexual relationship with Mireles.

And the night before the shooting, Mireles and another party were in front of Cadriel’s

hotel when Cadriel arrived. Cadriel was acting in a threatening manner and had a gun.

Mireles and the other person ran from Cadriel. A second individual reported meeting

with Cadriel and Mireles at 2:00 a.m. on the morning of the shooting and providing them

with drugs. Cadriel and Mireles had been in a Ford truck that Cadriel used.

       Putting aside the allegedly tainted information from the phone records, the

independently acquired and lawful information clearly established probable cause for the

search warrant. See Bridges, 977 S.W.2d at 632. The affidavit contained sufficient

information, other than Cadriel’s “tainted” cell phone records, for the trial court to find a

“fair probability,” Rodriguez, 232 S.W.3d at 60, that Cadriel had committed the murder of

Brisna Mireles and that evidence of the murder would be found in Cadriel’s residence.

We conclude that the record supports the trial court’s ruling, and the ruling is correct under


                                             16
a theory of law applicable to this case. See Ross, 32 S.W.3d at 856; Carmouche, 10

S.W.3d at 327; Ballard, 987 S.W.2d at 891. The trial court did not err in denying Cadriel’s

motion to suppress. We overrule Cadriel’s third issue.

     IV. ADMISSION OF THE Testimony of State’s Ballistics Expert Richard Hitchcox

        Cadriel describes his fourth issue as a sufficiency challenge. But his argument is

that the trial court abused its discretion in allowing Richard Hitchcox, the State’s forensic

tool-mark expert, to testify. Cadriel asserts that systemic scientific problems in the field

of tool-mark and firearms identification made Hitchcox’s testimony unreliable. Because

of these problems, Cadriel claims that Hitchcox could not conclusively determine whether

the bullets and guns he examined were in fact the bullets and guns used in the shooting.

Cadriel then contends that without Hitchcox’s testimony, the evidence is insufficient to

convict. The State responds that Cadriel failed to preserve a challenge to the reliability

of Hitchcox’s techniques for appellate review.4

A.      Applicable Law

        To preserve a complaint for appellate review, the record must show that a specific

and timely objection was made to the trial judge and that the trial judge ruled on the

objection. TEX. R. APP. P. 33.1(a); see Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.

App. 2003). “The complaining party must let the trial judge know what she wants and

why she thinks she is entitled to it, and do so clearly enough for the judge to understand



        4  We note that “an appellate court must consider all evidence actually admitted at trial in its
sufficiency review . . . . ‘[A]n appellant . . . is not entitled to have an appellate court first consider the
appellant’s complaints concerning improper admitted evidence and, if it resolves any of those in favor of
the appellant, to then, second, consider the sufficiency of the properly-admitted evidence to support the
conviction.’” Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004) (quoting George E. Dix and
Robert O. Dawson in 43A Texas Practice, Criminal Practice and Procedures § 43.531 at 742 (2d ed. 2001)).
                                                     17
and at a time when the trial court is in a position to do something about it.” Bekendam

v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (citing Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)). A defendant who fails to preserve

error regarding the admissibility of evidence waives his complaint on appeal. Amspacher

v. State, 311 S.W.3d 564, 572 (Tex. App.—Waco 2009, no pet.). A reviewing court

should not address the merits of an issue that has not been preserved for appeal. Ford

v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

B.     Discussion

       At trial, Cadriel did not challenge the reliability of this expert’s testimony in the field

of tool-mark and firearms identification. Cadriel directs us to no specific and timely

objection in the record, and we find none. See TEX. R. APP. P. 33.1(a); Martinez, 98

S.W.3d at 193.       Moreover, Cadriel had the opportunity to cross-examine Hitchcox

regarding his testing protocol, his results, and the reliability of those results. But Cadriel

did not object to Hitchcox’s testimony on the basis that it was unreliable. He did not let

the trial judge know what he wanted and why, at a time when the trial court was in a

position to do something about it. See Bekendam, 441 S.W.3d at 300. We conclude

that Cadriel failed to preserve error regarding the reliability of this evidence. We overrule

this fourth issue.

                                     V. MOTION IN LIMINE

       By his fifth issue, Cadriel complains that the trial court erred in failing to grant a




                                               18
mistrial because of repeated violations of an order in limine.5 Cadriel complains of two

separate instances of conduct, which he alleges violated the order in limine.

        First, Cadriel complains of the State’s conduct related to a statement made by

Jovonnie Quiroz, one of the State’s witnesses. Quiroz testified that, about one month

before the murder, he saw Cadriel and that Cadriel “had a gun on him, and a 12-guage,

too.” Cadriel objected that the State’s conduct in eliciting this testimony violated the

order in limine because it presented evidence of an extraneous bad act. The trial court

inquired of Cadriel’s trial counsel how the mere possession of a pistol and a shotgun was

a bad act, and counsel responded that it imputed incidents with firearms. The trial court

found that the State’s conduct did not violate the order in limine and overruled Cadriel’s

objection.

        The second incident involved the testimony of Police Chief Quill. He testified that

during his continuing investigation of the murder, he went to Brownsville and met with a

Brownsville Police Department officer at a location just west of Cadriel’s residence.

When the State asked Quill what was the “point of that meeting,” he responded, “Mr.

Cadriel was firing a weapon in his backyard.” Cadriel objected that “this is going outside

of the motion.” After the trial court sustained the objection, it explained that while Quill’s


         5 Cadriel filed pre-trial motions in limine seeking, among other things, a bench conference before

the introduction of evidence of prior bad acts. Relevant language from Cadriel’s motion in limine filed on
September 9, 2013, follows:

        Any specific prior acts or misconduct of the defendant [shall] not be inquired into until the
        proper predicate has been established out of the presence of the jury, to include, but not
        limited to any prior arrests or convictions, specifically, but not limited to an arrest for
        discharging a firearm within city limits. . . .

The trial court granted this motion, rendering an order in limine.

                                                     19
response violated the order in limine, the testimony was unresponsive6 and found that

the State did not “intentionally [seek] to inject any offensive response by Chief Quill.”

Cadriel requested an instruction, and the trial court instructed the jury that the witness’s

last answer was nonresponsive. The trial court denied Cadriel’s motion for mistrial.

A.      Applicable Law

        A mistrial is appropriate only when the improper conduct was “so prejudicial that

expenditure of further time and expense would be wasteful and futile.” Hawkins v. State,

135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc) (citation omitted). A mistrial is

required only in extreme circumstances when the prejudice is incurable. Id.

B.      Standard of Review

        Whether a mistrial was warranted lies within the trial court’s discretion, and the

appellate court reviewing that decision for an abuse of discretion will only reverse if the

trial court’s ruling lies outside the zone of reasonable disagreement. Archie v. State, 221

S.W.3d 695, 699 (Tex. Crim. App. 2007). In determining whether the trial court abused

its discretion by denying a motion for mistrial, the reviewing court should consider the

severity of the misconduct, i.e., the magnitude of the prejudicial effect, the measures

adopted to cure the misconduct, and the certainty of conviction absent the misconduct.

Id. at 700; Hawkins, 135 S.W.3d at 77.

C.      Discussion

        In this case, we cannot say that the circumstances were so extreme that any

prejudice was incurable. Considering the severity of the State’s conduct in the first


        6
         The trial court explained that the response was not responsive because it addressed what Cadriel
was doing instead of “the point of the meeting.”
                                                   20
instance, the trial court concluded that its conduct was not improper. The court inquired

how the mere possession of a pistol and a shotgun could be a bad act such that the

State’s conduct in eliciting this testimony violated the order in limine. Reasoning that it

could not, the court overruled Cadriel’s objection to this testimony.          In the second

instance, the trial court determined that the State did not solicit Quill’s reference to

Cadriel’s firing a gun and that it did not pose an offending question in an effort to elicit the

testimony. In other words, there is no showing that the State’s conduct was improper in

the first instance or that it was intentional in the second instance. See Archie, 221

S.W.3d at 700. Also, the trial court instructed the jury to disregard Quill’s answer—that

Cadriel was shooting a weapon in his yard—as nonresponsive. “Instructions to the jury

are generally considered sufficient to cure improprieties that occur during trial.” Gamboa

v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). And we must presume that the

jury followed the trial court’s admonishment. See Waldo v. State, 746 S.W.2d 750, 754

(Tex. Crim. App. 1988).       So the trial court adopted measures, which we consider

sufficient, to cure this misconduct. See Archie, 221 S.W.3d at 700.

       Finally, even absent the complained-of conduct, after reviewing the record, we

conclude that it is likely that a guilty verdict would have been obtained. Taking into

account all of the evidence, we can see no significant likelihood that Cadriel would have

been found not guilty if the questions had never been asked. See id. We conclude that

the trial court did not abuse its discretion in denying the requested mistrial. We overrule

Cadriel’s fifth issue.




                                              21
                         VI.    VIDEO STATEMENT OF ALICIA MIRELES

       In his sixth issue, Cadriel argues that the State violated his constitutional rights to

due process when he was tried after the alleged destruction of exculpatory evidence—

the video statement of Alicia Mireles (Ms. Mireles), the victim’s mother. 7                In the

alternative, Cadriel contends that the trial court erred in refusing to strike Ms. Mireles’s

testimony and to grant a mistrial because the State failed to produce the video statement

after her direct examination. See TEX. R. EVID. 615.

A.     Due-Process Claim

       The duty to preserve evidence is limited to the evidence that possesses an

exculpatory value that was apparent before the evidence was destroyed. California v.

Trombetta, 467 U.S. 479, 488 (1984). In order to establish a due process claim, a

defendant must make some showing that the lost evidence was favorable and material to

his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Nastu v.

State, 589 S.W.2d 434, 441 (Tex. Crim. App. 1979). And a criminal defendant must

show bad faith on the part of the police or the prosecution, in this case, to establish that

failure to preserve potentially useful evidence constitutes a denial of due process. See

Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Penix v. State, 488 S.W.2d 86, 89 (Tex.

Crim. App. 1972).

       1.      No Showing That the Video Statement Was Exculpatory or Favorable,
               and Material

       Cadriel argues that if the video statement could have been examined and if it was



       7During Ms. Mireles’s cross-examination, the video statement was described as being taken by
Texas Ranger Mike Ramirez twenty-three days after the shooting.
                                                22
determined that there were inconsistencies between Ms. Mireles’s video statement and

her testimony at trial, then her credibility might have been impeached. But a showing

that the video statement might have been favorable and material does not meet the

standard; instead, Cadriel must make an affirmative showing that the evidence was

favorable and material. See Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref’d) (op. on reh’g); Gamboa v. State, 774 S.W.2d 111, 112 (Tex.

App.—Fort Worth 1989, pet. ref’d). In addition, sources of comparable evidence—Ms.

Mireles and Ranger Ramirez, who took the video statement—were available for

questioning on the circumstances and substance of the video statement. See Hebert,

836 S.W.2d at 254. Cadriel cross-examined Ms. Mireles. He also received a copy of

Ranger Ramirez’s written notes of his interview with Ms. Mireles. Yet we find nowhere

in the record that the lost evidence was exculpatory or favorable and material. See

Valenzuela-Bernal, 458 U.S. at 873; Nastu, 589 S.W.2d at 441. So we conclude that

Cadriel failed to meet his burden of affirmatively showing that the video statement was

either exculpatory or favorable and material. See Hebert, 836 S.W.2d at 254; Gamboa,

774 S.W.2d at 112.

      2.     No Showing that the State Acted in Bad Faith

      Regarding bad faith, the record is also devoid of any fact showing bad faith on the

part of the State, Ranger Ramirez, or the police. See Youngblood, 488 U.S. at 58; Penix,

488 S.W.2d at 89. Instead, the record shows that the State was not aware of any video

statement. In addition, the record shows that neither Ranger Ramirez nor the police

knew what happened to the video statement. And a showing of negligence on the part


                                          23
of the police or the government is not equivalent to bad faith. See Saldana v. State, 783

S.W.2d 22, 24 (Tex. App.—Austin 1990, no pet.) (per curiam); see also United States v.

Kennedy, 714 F.2d 968, 975 (9th Cir. 1983). We conclude that Cadriel has not shown

that the State acted in bad faith.

B.     Rule 615 Claim

       In the alternative, Cadriel contends that the trial court improperly refused to strike

Ms. Mireles’s testimony or to grant a mistrial. See TEX. R. EVID. 615. We disagree.

       On cross-examination, Cadriel asked Ms. Mireles if she had made a statement to

law enforcement, and she responded, “Yes.” Cadriel asked the State to tender the

statement to defense counsel. Later, at a hearing outside the presence of the jury, after

acknowledging that Ms. Mireles gave a video statement to Ranger Ramirez, the State

informed the trial court that it had never received the statement and was uncertain as to

what happened to the statement, but that it no longer existed. And, as noted above,

neither Ranger Ramirez nor the police knew where the video statement was. Cadriel

moved that the trial court strike Ms. Mireles’s testimony and grant a mistrial under rule

615(e). The trial court denied the motion.

       Texas Rule of Evidence 615 provides the following:

       (a) Motion for Production. After a witness other than the defendant has
       testified on direct examination, the court, on motion of a party who did not
       call the witness, shall order the attorney for the state or the defendant and
       defendant's attorney, as the case may be, to produce, for the examination
       and use of the moving party, any statement of the witness that is in their
       possession and that relates to the subject matter concerning which the
       witness has testified. . . .

       (e) Sanction for Failure to Produce Statement. If the other party elects not
       to comply with an order to deliver a statement to the moving party, the court

                                             24
      shall order that the testimony of the witness be stricken from the record and
      that the trial proceed, or, if it is the attorney for the state who elects not to
      comply, shall declare a mistrial if required by the interest of justice.

Id. By its plain language, rule 615(a) requires a party to produce witness statements that

are in “their possession.” Id. In Jenkins v. State, the Texas Court of Criminal Appeals

held that rule 615 only requires a prosecutor to produce witness statements that are “in

the prosecutor’s possession” or in the possession of the “prosecutorial arm of the

government.” 912 S.W.2d 793, 819 (Tex. Crim. App. 1993) (op. on reh’g) (en banc); see

Dancer v. State, 253 S.W.3d 368, 370 (Tex. App.—Fort Worth 2008, pet. ref’d) (per

curiam) (mem. op.).

      The record in this case shows that at the time of trial the statement was not in the

possession of the State. The prosecutor affirmatively represented to the trial court that

he did not have Ms. Mireles’s video statement and that he did not know what happened

to it. The record establishes that neither the State, Ranger Ramirez, nor the police

physically possessed the statement at the time Cadriel requested it. The record also

shows that the statement was not within their control and was not readily accessible to

them. According to the State, “[n]obody has it anymore. That’s what we agreed on.”

And the trial court found that Cadriel had made no

      suggestion or any direct implication . . . that the responsibility for this
      misplacement or loss is at the feet of the office of the district attorney. . . . It
      seems to rest—the responsibility tends to rest either at the feet of the office
      of the Texas Ranger or at the Combes Police [D]epartment . . . and neither
      side [is] able to account for it.

Upon the record and the findings of the trial court, this Court can only conclude that Ms.

Mireles’s video statement was not in the State’s possession for purposes of rule 615.


                                              25
The trial court could not have ordered the State to produce the video statement. See

TEX. R. EVID. 615(a).

       Furthermore, section (e) of rule 615 requires sanctions only “[i]f the other party[, or

in this case, the attorney for the State] elects not to comply with an order to deliver a

statement to the moving party.” Id. R. 615(e). Yet because the State did not possess

Ms. Mireles’s statement, the trial court did not order the State to deliver it to Cadriel.

Because the trial court never ordered the State to deliver the statement to Cadriel, the

State could not have elected not to comply with such an order. See id.; see also Marquez

v. State, 757 S.W.2d 101, 103 (Tex. App.—San Antonio 1988, pet. ref’d).

       Based on the above, we conclude that the trial court properly denied Cadriel’s rule

615 motion for production and for sanctions.

C.     Summary

       We overrule Cadriel’s sixth issue.

                                     VII. CONCLUSION

       We affirm.

                                                                 NELDA V. RODRIGUEZ
                                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 24th
day of September, 2015.




                                             26
