                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00566-CR


COLEMAN NICHOLS                                                 APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                  TRIAL COURT NO. F–2011–1562–E
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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     A jury found Appellant Coleman Nichols guilty of aggravated assault and

assessed his punishment at twenty-seven years’ confinement. See Tex. Penal

Code Ann. § 22.02 (West 2011). The trial court sentenced him accordingly. In

five issues, Nichols complains of the trial court’s denial of his motion for

continuance and motion for new trial, of the exclusion of certain exculpatory

     1
      See Tex. R. App. P. 47.4.
evidence, of the jury’s verdict, and of the trial court’s denial of his requested jury

instruction on self defense. We will affirm.

                                  II. BACKGROUND

      After dating for a year and a half, Nichols and Diana Adame ended their

relationship. They had a son, A.N., who lived with Adame during the events

giving rise to this case. By all accounts, neither parent viewed the other as a

particularly good influence on the child. Adame abused drugs and took A.N.

along when she bought drugs. Nichols spent time in prison for domestic abuse.

Both parents complained to CPS about the other, alleging that the other had

physically abused their son. In March 2011, Adame reported to CPS that Nichols

hit her, and Nichols was arrested. CPS gave Adame custody of A.N.

      On April 15, 2011, Nichols was at a bar when he heard that Adame had

been at a “dope house.” Angered and concerned for his son, Nichols borrowed a

shotgun and drove to where Adame was staying in order to threaten her. Adame

was outside the house with Eric Grant when Nichols drove up, and she

recognized Nichols’s truck. Nichols shot Adame with the shotgun.

      Adame suffered “life-threatening” injuries from the shotgun blast, which left

her with pellets in her upper abdomen, chest, face, and arms, but an emergency

surgery saved her life.

                     III. DENIAL OF MOTION FOR CONTINUANCE

      In his first issue, Nichols argues that the trial court improperly denied his

motion for continuance.       He contends that the purpose of his requested


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continuance was to identify, contact, and interview certain individuals named in

CPS reports that the State turned over to him five days prior to trial.2 He asserts

that the CPS reports contained exculpatory material that required additional

investigation and interviews of the CPS employees named in the reports and

contends that those individuals would have provided impeachment and

punishment-mitigation testimony necessary for him to present a complete

defense.

      We review the trial court’s ruling on a motion for continuance for an abuse

of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007), cert.

denied, 553 U.S. 1080 (2008); Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim.

App. 2002). To establish an abuse of discretion, the appellant must show that

the trial court erred by denying the motion and that the error resulted in actual

harm. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).

      The first prong of Gonzales requires the appellant to demonstrate that “the

case made for delay was so convincing that no reasonable trial judge could

conclude that scheduling and other considerations as well as fairness to the

State outweighed the defendant’s interest in delay of the trial.” Id. The second

prong requires that the error result in actual prejudice. Janecka v. State, 937

S.W.2d 456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997);

Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995).           The

      2
        The records turned over by the State contained 236 pages of CPS
investigation reports from 2002 through June 2013.


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appellant must prove the prejudice with considerable specificity; mere

speculation and bare assertions are insufficient to justify reversing the trial court’s

decision. Gonzales, 304 S.W.3d at 842–43.

      Nichols makes several arguments on appeal, as he did in the trial court,

regarding why he needed more time to investigate the information contained in

the CPS reports. The majority of his arguments center on information from the

CPS reports that could lead to evidence attacking Adame’s credibility and

impeaching her testimony.3 Generally, a trial court does not abuse its discretion

when it denies a continuance sought to secure impeachment testimony. See

Keel v. State, 434 S.W.2d 687, 689 (Tex. Crim. App. 1968); Franks v. State, 90

S.W.3d 771, 808 (Tex. App.—Fort Worth 2002, no pet.). And here, Nichols did

present evidence casting doubt on Adame’s credibility. For example, Adame

testified to her drug use and evidence showed that she had used drugs around

A.N.; Adame admitted to lying to police about a separate family-violence incident

with Nichols; and Adame’s step-father testified that Adame had made false

accusations against Nichols in the past. Thus, even if the trial court somehow

erred by denying the motion for continuance regarding the information that

      3
        For example, one CPS report included a CPS investigator’s notation that
she did not think Adame was telling the truth about where she was staying during
the investigation, and Nichols argues that he should have been allowed time to
interview this CPS investigator for possible impeachment testimony. In another
CPS report, a CPS employee stated that Adame had asked her what would
happen if Nichols was caught using drugs, which Nichols argues could have
been used to impeach Adame’s testimony denying that she had ever asked that
question.


                                          4
Nichols argues could have led to impeachment evidence, we cannot say that

Nichols suffered any actual prejudice.       See Janecka, 937 S.W.2d at 468;

Heiselbetz, 906 S.W.2d at 511–12.

      Nichols also argues that the CPS reports revealed the names of CPS

employees who could have provided punishment-mitigation evidence that

Nichols was doing well on parole and that he had cared for his son and was able

to meet his son’s needs. But Nichols knew of his dealings with CPS, of his

conduct during parole, and of his parole officers prior to receiving the CPS

reports from the State. Cf. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App.

2000) (holding that trial court did not abuse its discretion by denying defendant’s

request to appoint DNA expert, filed on the morning of trial, where defendant

“knew early on that this case involved blood/DNA analysis”), cert. denied, 531

U.S. 1128 (2001).

      Nichols also argues that the CPS reports show that “neighbors” had seen a

known drug dealer go to Adame’s house while Nichols was at work. Nichols

argues that he should have been granted a continuance to determine who these

“neighbors” were and what other information they could provide Nichols for his

defense. These “bare assertions” are insufficient to justify reversing the trial

court’s decision.4 See Gonzales, 304 S.W.3d at 842–43; Heiselbetz, 906 S.W.2d


      4
       Nichols filed a motion for new trial, complaining in part of the trial court’s
denial of his motion for a continuance, but he did not present any evidence at the
new-trial hearing as to what the neighbors may have testified to. See Gonzales,
304 S.W.3d at 842 (explaining that defendant must ordinarily file motion for new

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at 512 (rejecting assertion that counsel did not have time to adequately

investigate medical records for potentially mitigating evidence without a showing

of harm).

       We hold that the trial court did not abuse its discretion by concluding that

scheduling and other considerations, as well as fairness to the State, outweighed

Nichols’s interest in delaying the trial to investigate certain information presented

in the CPS reports. See Gonzales, 304 S.W.3d at 843. We further hold that,

even if the trial court did err by denying the motion for continuance, Nichols was

not harmed by the denial. See id. at 842–43. Accordingly, we overrule Nichols’s

first issue.

IV. EXCLUSION OF EVIDENCE OF ADAME’S HISTORY AS A CONFIDENTIAL INFORMANT

       In his second issue, Nichols argues that the trial court erred by preventing

him from obtaining any discovery regarding Adame’s history as a confidential

informant and by refusing to allow cross-examination on the subject.

       Prior to trial, Nichols filed a motion for discovery, requesting in part any

police records relating to Adame’s role as a confidential informant to the Denton

police department. At a hearing on the motion, the State objected that evidence

of Adame’s past role as a confidential informant was not relevant because she

was the victim in this aggravated assault case and because she had not been a


trial based on denial of continuance in order to produce evidence as to what
additional information, evidence, or witnesses the defense would have had
available had the motion been granted).


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confidential informant for three years prior to the shooting. The trial court denied

Nichols’s request. At trial, when Nichols attempted to cross-examine Adame and

a police officer about Adame’s status as a confidential informant, the trial court

sustained the State’s relevancy objections.

      Nichols contends on appeal, as he did in the trial court, that the trial court’s

rulings on the discovery and exclusion of Adame’s history as a confidential

informant violated Brady and denied him a meaningful opportunity to create and

present a complete defense through cross-examination during both the

guilt/innocence and punishment stages of the trial.5 See U.S. Const. amend. VI;

XIV; Brady v. Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 1196–97 (1963).

                                     A. Brady

      The State has a constitutional duty to disclose to a defendant material,

exculpatory evidence. Brady, 373 U.S. at 86–87, 83 S. Ct. at 1196–97; Pena v.

State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011). When arguing a Brady

violation, an appellant must demonstrate that (1) the State failed to disclose

evidence, (2) the withheld evidence is favorable to the appellant, and (3) the

evidence is material, that is, there exists a reasonable probability that had the

evidence been disclosed, the outcome of the trial would have been different.

Pena, 353 S.W.3d at 812; Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002).

      5
      Nichols made these same arguments in his motion for new trial, which
was denied by operation of law.


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      Under Brady, nondisclosure of favorable evidence violates due process

only if it is “material” to guilt or punishment. Pena, 353 S.W.3d at 812. “The

mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97,

109–10, 96 S. Ct. 2392, 2400 (1976). The defendant must show that, “in light of

all the evidence, it is reasonably probable that the outcome of the trial would

have been different had the prosecutor made a timely disclosure.” Pena, 353

S.W.3d at 812.

      Here, Nichols argues on appeal that a jury could logically infer from

evidence that Adame was a confidential informant that she was around illegal

substances and that, but shooting her, Nichols was protecting himself and his

son from her drug use and relations with drug dealers. But Adame had not been

a confidential informant for three years prior to the shooting, and Nichols

presented no evidence and makes no argument that he knew, prior to the

shooting, that Adame had been an informant.        Further, Nichols was able to

present evidence of Adame’s drug use and relationship with drug dealers.

Nichols cross-examined Adame about her drug use at both stages of trial,

including that she and their child had tested positive for methamphetamines in

the   past.      Nichols   also   cross-examined   Grant   about   his   use   of

methamphetamines with Adame.




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         Balancing the strength of evidence of Adame’s history as a confidential

informant three years prior to the shooting against the evidence supporting

Nichols’s conviction for aggravated assault and his twenty-seven-year sentence,

we cannot say that there is a reasonable probability that presenting details of

Adame’s history as a confidential informant to the jury would have resulted in a

different outcome at either the guilt/innocence or punishment stage of trial. See

Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston 2013, no

pet.).    We hold that the trial court did not abuse its discretion by denying

Nichols’s request that the trial court order the State to produce the requested

information about Adame’s history as a confidential informant, and we overrule

this portion of Nichols’s second issue.

                               B. Cross-Examination

         The Sixth Amendment protects the defendant’s right not only to confront

the witnesses against him, but to cross-examine them as well. See Davis v.

Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). The accused is entitled

to great latitude to show a witness’s bias or motive to falsify her testimony. See

Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982); cf.

Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.—Austin 1996, pet. ref’d)

(“The rules of evidence grant a party greater latitude to prove a witness’s bias

than to prove a witness’s untruthful character.”).

         However, the right of cross-examination is not unlimited. A trial court has

the discretion to limit testimony that may confuse the issues or be only marginally


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relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431,

1435 (1986). The trial court must carefully consider the probative value of the

evidence and weigh it against the risks of admission. See Hodge, 631 S.W.2d at

758.    These potential risks include “the possibility of undue prejudice,

embarrassment or harassment to either a witness or a party, the possibility of

misleading or confusing a jury, and the possibility of undue delay or waste of

time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000);

Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511

U.S. 1100 (1994).        Moreover, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985); see Walker

v. State, 300 S.W.3d 836, 844–45 (Tex. App.—Fort Worth 2009, pet. ref’d).

       Here, the trial court acted within its discretion by concluding that evidence

of Adame’s history as a confidential informant was not relevant to the case; she

had not been a confidential informant since 2008, and in this case, she was

testifying as the complainant in an aggravated assault case after having been

shot. Nichols complains that the evidence was admissible to show her level of

involvement with drugs and drug dealers, but as we explained above, the jury

heard about Adame’s history with drugs and her relationship with drug dealers.

Nichols does not allege that her role as a confidential informant showed a

potential bias, motive, or prejudice in this case. See Tex. R. Evid. 401; Hammer


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v. State, 296 S.W.3d 555, 562–63 (Tex. App. 2009). Because we conclude that

the trial court acted within the zone of reasonable disagreement by prohibiting

Nichols from cross-examining Adame about her past role as a confidential

informant, we overrule the remainder of Nichols’s second issue.

                              V. QUOTIENT VERDICT

      In his third issue, Nichols contends that the trial court abused its discretion

by denying his motion for new trial because the jury improperly sentenced him by

using a quotient verdict.

      We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard.   Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App.

2014). “We do not substitute our judgment for that of the trial court; rather, we

decide whether the trial court’s decision was arbitrary or unreasonable.”         Id.

(quoting Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)).

      Jurors may not reach their verdict by lot or in any other manner that is not

a fair expression of the jurors’ opinion. Tex. R. App. P. 21.3(c).     When a jury

agrees to adopt and be bound by a quotient verdict, a defendant is entitled to a

new trial.   Ramsey v. State, 146 S.W.2d 192, 193 (Tex. Crim. App. 1940).

However, before a court can grant a new trial on this basis, admissible evidence

must demonstrate that the jurors agreed to be bound by the result of the

averaging process in advance of the calculation. Martinez v. State, 496 S.W.2d

612, 613–14 (Tex. Crim. App. 1973). Absent such an agreement, there is no




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misconduct. Id. at 613; Malbrough v. State, 846 S.W.2d 926, 927 (Tex. App.—

Houston [1st Dist.] 1993, pet. ref’d).

      Here, after the jury assessed punishment, Nichols requested that the trial

court inspect the jurors’ notes to determine if they contained evidence of a

quotient verdict. The trial court reviewed the notes and allowed the parties to

view them.    Nichols alleged in his motion for new trial that the jurors’ notes

revealed that they had agreed to a quotient verdict, and Nichols attached to his

motion defense counsel’s affidavit stating that the jurors’ notes included a chart

that “was obviously used to determine the sentence as a result of a quotient

verdict.” The motion also included an affidavit from defense counsel’s employee

stating that she had contacted a juror who stated that “some of the jurors were

considering 25 years, some wanted 30 years, and some wanted 50 years” so the

jurors agreed to accept the average as the verdict. At the hearing on Nichols’s

motion, the State objected to the affidavits under rule 606.6

      Rule of evidence 606(b) provides,

      Upon an inquiry into the validity of a verdict or indictment, a juror
      may not testify as to any matter or statement occurring during the
      jury’s deliberations, or to the effect of anything on any juror’s mind or
      emotions or mental processes, as influencing any juror’s assent to or
      dissent from the verdict or indictment. Nor may a juror’s affidavit or
      any statement by a juror concerning any matter about which the juror
      would be precluded from testifying be admitted in evidence for any
      of these purposes.

      6
       The trial court deferred ruling on the objection until it could examine the
case law, and it did not make a ruling on the objection or the motion for new trial
that day. The motion was denied by operation of law. See Tex. R. App. P. 21.8.


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Tex. R. Evid. 606(b). The only exceptions are for outside influences and to rebut

a claim that a juror was not qualified to serve. Id.

       Rule 606(b) applies in this case to bar consideration of the affidavit of

defense counsel’s employee because it contains a statement by a juror

concerning an incident that occurred during the jury’s deliberations as influencing

some jurors’ assent to the verdict on punishment. See id. Even assuming that

the remaining affidavit of defense counsel and the jurors’ notes were admissible

under rule 606(b), they are only evidence of calculating an average and do not

show an agreement by the jurors to be bound by the result of an averaging

process prior to calculation of that average. See Martinez, 496 S.W.2d at 613–

14; see also Malbrough, 846 S.W.2d at 927 (“The agreement to be bound by the

outcome is the evil of any verdict . . . .”).

       Nichols cites to McIntire v. State to argue that a juror’s statement is

admissible to prove juror misconduct. 698 S.W.2d 652 (Tex. Crim. App. 1985).

But McIntire was decided before rule 606(b) became effective on March 1, 1998,

upon the adoption of the consolidated rules of evidence.         See Tex. R. Evid.

606(b). Although the former rules permitted jurors to testify to anything relevant

to the verdict’s validity, that is no longer the case. Hicks v. State, 15 S.W.3d 626,

630 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Sanders v. State, 1

S.W.3d 885, 887 (Tex. App.—Austin 1999, no pet.). Thus, because there is no

admissible evidence to show an agreement by the jurors to be bound by a



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quotient verdict, we hold that the trial court did not abuse its discretion by

denying Nichols’s motion for new trial on punishment. See Martinez, 496 S.W.2d

at 613–14; Malbrough, 846 S.W.2d at 927. We overrule Nichols’s third issue.7

                            VI. SELF-DEFENSE INSTRUCTION

       In his fifth issue, Nichols asserts that the trial court erred by denying his

request for a self-defense instruction in the jury charge.

       A trial court must give a requested instruction on every defensive issue

raised by the evidence without regard to its source or strength, even if the

evidence is contradicted or is not credible. Krajcovic v. State, 393 S.W.3d 282,

286 (Tex. Crim. App. 2013). Some evidence must support the defense as a

rational alternative to criminal liability. Id.

       In order for a trial court to submit a self-defense instruction to the jury, a

defendant must produce sufficient evidence on each element to raise the issue.

Tex. Penal Code Ann. § 2.03 (West 2011). Penal code sections 9.31 and 9.32

provide in relevant part that a person is justified in using deadly force against

another “when and to the degree the actor reasonably believes the force is

immediately necessary . . . to protect the actor against the other’s use or

attempted use of unlawful deadly force.” Id. §§ 9.31(a), .32(a) (West 2011). A


       7
        Having determined that the trial court did not commit any error with
regards to Nichols’s first, second, and third issues, we overrule his fourth issue,
in which he asserts that the trial court abused its discretion by denying his motion
for new trial based on the cumulative effect of the errors he alleged in his first
three issues.


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“reasonable belief” is that which “would be held by an ordinary and prudent man

in the same circumstances as the actor.” Id. § 1.07(a)(42) (West Supp. 2014).

      Here, Nichols argues that the testimony of his best friend James Devin

Wade was some evidence raising the issue of self-defense. Wade testified that

after Nichols shot Adame, he called Wade and explained that he had gone to the

house where Adame was staying with a shotgun in order “to intimidate her.”

Nichols told Wade that when he drove up, he saw Adame and a black man—Eric

Grant—outside. Nichols believed that Grant was Adame’s drug dealer. Grant

ran up to his truck, and then Nichols accidentally fired the shotgun.

      Neither Wade’s testimony nor any other evidence in the record constitutes

any evidence that Nichols possessed a reasonable belief that deadly force was

necessary to protect against Grant’s—or anyone else’s—unlawful use of deadly

force. See id. § 9.32(a).    Because there is no evidence that could support a

rational inference of all of the elements of self defense, Nichols was not entitled

to a self-defense instruction. See Shaw v. State, 243 S.W.3d 647, 657 (Tex.

Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008). Accordingly, we overrule

Nichols’s fifth issue.

                                 VII. CONCLUSION

      Having overruled Nichol’s five issues, we affirm the trial court’s judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.


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DAUPHINOT, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2014




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