Affirmed and Opinion filed October 30, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00436-CR

                          ALEX MOLINA, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1314365

                                OPINION
      Appellant Alex Molina was convicted by a jury of capital murder and
sentenced to confinement for life in the Texas Department of Criminal Justice,
Institutional Division. On appeal, appellant contends that the trial court erred by
failing to suppress a portion of his recorded statement, submitting an erroneous
charge, denying confrontation and cross-examination of a witness, limiting cross-
examination of a witness as to bias, and excluding evidence of a prior act of
aggression by a complainant. We affirm.
                              FACTUAL BACKGROUND

       Early in the morning on July 24, 2011, Roland Vargas and his common-law
wife, Elizabeth Sandoval, decided to celebrate Sandoval’s birthday at an after-
hours club called La Cave. The club was located near the intersection of FM 1960
and Veterans Memorial Drive in Harris County. Vargas and Sandoval,
accompanied by Vargas’s cousin, Lee Hernandez, drove to the club in Vargas’s
black Impala. When they arrived at around 2:30 a.m., they were met by some of
Vargas’s friends.

      Inside the club, an altercation ensued between Vargas’s group and another
group that included appellant and his friend, Christopher Garcia. Vargas’s group
was eventually ejected from the club. In the parking lot, security guards directed
them to get in their cars and leave the property, but Vargas and Hernandez were
angry and demanded to be allowed back inside. Sometime later, while Vargas’s
group was still in the parking lot, appellant and his group emerged from the club,
and the altercation between the two groups continued in the parking lot. Although
accounts varied, security guards reported that the two groups were yelling at each
other, but no physical contact occurred and no weapons were displayed.

      During the exchange, appellant borrowed a cell phone to call another friend,
David Salinas. Appellant directed Salinas to come to the club and bring the
“chopper,” meaning an AK-47 assault rifle. Salinas and his girlfriend, Angelica
Cavazos, arrived in Salinas’s silver Dodge truck and picked up appellant. Salinas’s
fully automatic AK-47, equipped with a clip containing 29 rounds, was in the back
seat. Appellant’s friend Garcia and several others then left the club in Garcia’s
Nissan Altima, followed by Salinas, Cavazos, and appellant in Salinas’s truck.
Vargas, Sandoval, and Hernandez left the club immediately after them and drove
in the same direction as Salinas’s truck.

                                            2
         Witness accounts of what happened next differ, but evidence shows that
Garcia’s Altima and Salinas’s truck turned right onto Veterans Memorial as
Vargas’s Impala followed behind them. In the truck, Salinas was driving, appellant
was in the front passenger seat, and Cavazos was in the backseat. In the Impala,
Vargas was driving, while Hernandez and Sandoval were in the backseat, with
Hernandez on the driver’s side and Sandoval on the passenger side. As the Impala
approached the left side of the truck, appellant rolled down his window,
maneuvered his upper body outside of the passenger-side window, and opened fire
on the Impala with the AK-47, hitting the Impala numerous times. Both the truck
and the Altima fled as the Impala came to a stop and police arrived at the scene.
Vargas and Hernandez were mortally wounded by the gunshots, but Sandoval,
grazed by bullets, survived.

         Appellant was charged with capital murder and arrested. After appellant’s
arrest, police conducted a recorded interview with him, in which he denied any
involvement in the shooting. At trial, appellant pleaded “not guilty” and asserted
that he acted in self-defense and in defense of third persons.

         The guilt-innocence phase of the trial lasted seven days and included
testimony from numerous witnesses, including Sandoval. An eyewitness to the
shooting, Lashunda Philio, also testified. Philio was the manager of a nearby
Starbucks who witnessed the shooting from the Starbucks’ parking lot. She
positively identified appellant as the shooter based in part on his distinctive tattoos.
David Salinas, who pleaded guilty to murder in the shootings of the complainants,
also testified for the State. Three passengers in the Altima driven by Christopher
Garcia testified for the defense. No weapon other than the AK-47 was found at the
scene, and there was no physical evidence that anyone in the Impala fired at the
truck.

                                           3
      The jury rejected appellant’s self-defense theories and found him guilty of
capital murder in the deaths of Vargas and Hernandez. On appeal, appellant does
not challenge the sufficiency of the evidence supporting his conviction.

                        ANALYSIS OF APPELLANT’S ISSUES

      On appeal, appellant contends that the trial court erred by: (1) overruling in
part appellant’s motion to suppress a portion of his recorded statement made after a
request for counsel; (2) failing to properly instruct the jury to apply the law of
parties to self-defense and defense of third persons; (3) denying confrontation and
cross-examination of an expert witness; (4) limiting cross-examination of his co-
defendant as to bias; and (5) preventing appellant from eliciting evidence of a prior
act of aggression by one of the complainants. The State has not filed a brief.

I.    Appellant’s Motion to Suppress

      At a pretrial hearing, appellant argued that portions of his statement should
be suppressed because he invoked his right to counsel. The trial court granted the
motion in part and denied it in part and filed findings of fact and conclusions of
law. In making a ruling, the trial court considered the video of appellant’s
statement, the transcription of the statement, and the testimony of Deputy Carrizal,
a homicide investigator for the Harris County Sheriff’s Office. Although the trial
court suppressed everything after line 171 of the transcript, appellant contends the
trial court should have suppressed everything after line 87 because he made
conditional, but unambigous, requests for counsel.

      While in custody, appellant was interviewed by Deputy Carrizal and his
partner, Sergeant Dousay of the Harris County Sheriff’s Department. The recorded
interview shows that Carrizal advised appellant of his constitutional and statutory
rights. Appellant acknowledged he understood his rights and voluntarily agreed to


                                          4
speak to the deputies. Appellant then wanted to know why he was there and said
that an officer outside had informed him it was about capital murder. Carrizal
explained that he and his partner were investigating a double murder off FM 1960
and Veterans Memorial on July 24, and asked appellant if he had been at La Cave
that night. Appellant denied being at the club or even knowing where it was. At
line 87, appellant stated, “If I’m getting blamed for something like that well shit
I’m going to just go ahead and call my lawyer.” Carrizal responded, saying “OK,
well I’m just asking if you were at the club. We need to clear things up. That’s why
we’re here.” Appellant stated that he wanted to know why his name had come up
and he wanted to know “all the details.” Appellant then said, at line 101, “And to
that I’ll see if I speak, if not then I’m going to need my lawyer.” Carrizal explained
that his investigation showed that there had been an argument at the club, people
involved were later shot and killed in their vehicle after leaving the club, and
witnesses had identified appellant as being in the argument. Appellant again denied
having been in the club. When Carrizal also mentioned that there was video
evidence, appellant said, at line 155, “If y’all got videos [and] if y’all got all that
then I’ll wait until my lawyer comes in” and again denied being at the club. After a
brief exchange between Dousay and appellant, at line 171, appellant said, “I want
to wait for my lawyer then.”

      The trial court found that appellant’s references to an attorney at lines 87 and
101 were not a clear and unambiguous invocation of the right to counsel, and
overruled appellant’s motion to suppress to that extent. However, the trial court
found that appellant had clearly invoked his right to counsel at line 171, and
granted appellant’s motion to suppress the remainder of his statement.




                                          5
      A.     Standard of review and applicable law

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review, giving almost total deference to the trial court’s findings of
historical fact and reviewing de novo the trial court’s application of the law.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the trial judge
makes express findings of fact, we view the evidence in the light most favorable to
his ruling and determine whether the evidence supports these factual findings.
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain
the trial court’s ruling if that ruling is reasonably supported by the record and is
correct on any theory of law applicable to the case. Id. at 447–48.

      Appellant argues that police violated his Fifth Amendment right to counsel
during the custodial interrogation. See U.S. Const. amends. V, XIV; Miranda v.
Arizona, 384 U.S. 436, 467 (1966); see also Tex. Code Crim. Proc. art. 38.22. The
right to counsel is considered invoked when a person indicates that he desires to
speak to an attorney or to have an attorney present during questioning. Dinkins v.
State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). “An invocation must be clear
and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without
more, does not automatically invoke the right to counsel.” Id.; Russell v. State, 727
S.W.2d 573, 575–76 (Tex. Crim. App. 1987). If the suspect makes an ambiguous
or equivocal reference to an attorney that a reasonable officer in light of the
circumstances would have understood only as possibly invoking the right to
counsel, questioning need not cease. Davis v. United States, 512 U.S. 452, 459
(1994).

      We review the totality of the circumstances surrounding the interrogation, as
well as the alleged invocation, to determine whether a suspect’s statement can be
construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d at

                                          6
351. The test is objective: whether the suspect articulated his desire to have
counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.
Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010). If a defendant clearly
invokes his right to counsel, all interrogation by the police must cease until counsel
is provided or until the suspect initiates further conversation. Davis, 512 U.S. at
458; State v. Gobert, 275 S.W.3d 888, 893 (Tex. Crim. App. 2009). Further
questioning may not be used to cast doubt retrospectively on the clarity of his
initial request. Davis, 313 S.W.3d at 339.

      B.     Appellant did not unambiguously invoke his right to counsel

      Appellant cites Gobert to support his contention that his requests for counsel
at lines 87, 101, and 155 were conditional but not ambiguous. See Gobert, 275
S.W.3d at 893 (“Just because a statement is conditional does not mean it is
equivocal, ambiguous, or otherwise unclear.”). In Gobert, after the appellant was
asked whether he understood his Miranda rights, he stated, “I don’t want to give
up any right though, if I don’t got no lawyer.” Id. at 889–90. The Court of Criminal
Appeals construed the statement as an indirect expression of the appellant’s
possible willingness to waive his rights, but only on the unqualified condition that
he first be afforded his right to have counsel present. Id. at 893. Because the
officers continued to interrogate him in the absence of counsel, appellant’s right to
counsel was violated. Id. at 894.

      At line 87, appellant said, “If I’m getting blamed for something like that . . .
I’m going to just go ahead and call my lawyer.” Appellant argues that because he
and the officers “well knew” that appellant was “getting blamed” for the murders,
no reasonable police officer could interpret his statement as anything other than a
clear invocation of the right to counsel. We conclude, however, that appellant’s

                                          7
statement is distinguishable from that in Gobert and insufficient to clearly and
unambiguously invoke his right to counsel.

      In this case, appellant agreed to answer questions, conditionally referred to
calling his lawyer, and then continued to request additional information about the
case and answer the investigators’ questions. Appellant’s statement was not in the
form of a request, nor did appellant expressly say that he wanted a lawyer. We hold
that, under the circumstances presented here, appellant’s statement was not a clear
and unambiguous request for counsel. See Davis, 313 S.W.3d at 341 (holding that
appellant’s statement that “I should have an attorney” was not a request for an
attorney when he did not make a request for or expressly say he wanted a lawyer,
and he subsequently asked detectives why he should help them out).

      Appellant also argues that his statement at line 101 that he was going to need
a lawyer if the police were not going to share the details is a conditional but
unequivocal request for a lawyer. We conclude that the statement was equivocal
because it was predicated on obtaining more details about the murders. Carrizal
testified that appellant was asking him a question, which he understood as a
request “to hear more information about what I have to say.” Further, the record
reflects that the investigators satisfied any condition by providing additional details
and information as requested. See Connecticut v. Barrett, 479 U.S. 523, 528–29
(1987) (holding that no violation of suspect’s rights occurred when suspect made
only a limited request for counsel and interrogating officers honored that
limitation); Gobert, 275 S.W.3d at 893 (“[W]hen a suspect makes a clear, but
limited, invocation of the right to counsel, the police must honor the limits that are
thereby placed upon the interrogation, but they may question their suspect outside
the presence of counsel to the extent that his clearly expressed limitations
permit.”).

                                          8
      Lastly, appellant points to his statement at line 155, “If ya’ll got videos [and]
if y’all got all that then I’ll wait till my lawyer comes in.” According to appellant,
this was also a conditional, yet unambiguous request for counsel because he was
relying on the investigators’ representation that they had video of appellant. But
this statement is similar to appellant’s other equivocal statements discussed above,
because it was neither phrased as a request for counsel nor an express statement
that appellant wanted a lawyer. See Davis, 313 S.W.3d at 341. In contrast, shortly
after this statement, appellant unequivocally says, “I want to wait for my lawyer
then.” At this point, the trial court concluded that he clearly and unambiguously
requested a lawyer. Viewing the totality of the circumstances and the statements
themselves, we hold that the trial court did not err when it failed to suppress all of
the statements after line 87. We overrule appellant’s first issue.

II.   The Jury Charge on Self-Defense and Defense of Third Persons

      In his second issue, appellant contends that, although the trial court’s charge
instructed the jury on the defenses of self-defense and defense of third persons, the
charge failed to apply the law of parties to self-defense and defense of third
persons. In his brief, appellant acknowledges that he did not object to the charge on
this basis or request an instruction applying the law of parties to his defensive
issues.

      A.     Jury charge error

      The trial judge has the duty to instruct the jury on the law applicable to the
case, even if defense counsel fails to object to inclusions or exclusions in the
charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). But the trial
judge has no duty to instruct the jury on unrequested defensive issues, and a
defendant may not complain on appeal about the trial judge’s failure to include a
defensive instruction not preserved by request or objection. Id. (citing Posey v.
                                           9
State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).

      However, if the trial judge does charge on a defensive issue, but fails to do
so correctly, this is charge error subject to review under Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1985). Id.; Barrera v. State, 982 S.W.2d 415, 416
(Tex. Crim. App. 1998). Accordingly, if the defendant objected at trial, reversal is
required if the accused suffered “some harm” from the error. Vega, 394 S.W.3d at
519 (citing Almanza, 686 S.W.2d at 171)). If no proper objection was made, as in
this case, a reversal is required only if the error caused “egregious harm.” Id.

      Jury charge error is egregiously harmful if it affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive
theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In examining
the record for egregious harm, we should consider the entire jury charge, the state
of the evidence, including the contested issues and the weight of the probative
evidence, the final arguments of the parties, and any other relevant information
revealed by the record of the trial as a whole. Id. The purpose of this review is to
illuminate the actual, not just theoretical, harm to the accused. Almanza, 686
S.W.2d at 174.

      B.     Appellant was not egregiously harmed by the charge

      The trial court’s charge instructed the jury on the law of parties and self-
defense, including defense of third persons, in the abstract paragraphs. The
application paragraph of the charge on capital murder authorized the jury to find
appellant guilty of capital murder if it found that appellant shot the complainants
himself, or that David Salinas and/or Christopher Garcia shot the complainants and
appellant was a party to the shootings. In the application paragraph on self-defense,
however, the charge authorized the jury to find appellant not guilty only if
appellant himself shot the complainants.
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       Appellant argues that the charge was erroneous because the jury was
authorized to convict him of capital murder as either a principal or a party, but the
jury was authorized to find that he acted in self-defense or in defense of third
persons only if appellant himself did the shooting. He also argues that he was
egregiously harmed by this error because the self-defense issues were contested
and there was conflicting evidence concerning whether the complainants had a gun
or had fired shots before appellant reached for the AK-47. But the record also
reflects that the defense offered no argument or evidence that someone other than
appellant was the shooter.

       “When a definition or instruction on a defensive theory of law . . . is given in
the abstract portion of the charge, the application paragraph must list the specific
conditions under which a jury is authorized to acquit.” Vega, 394 S.W.3d at 520;
see also Schiffert v. State, 257 S.W.3d 6, 13 (Tex. App.—Fort Worth 2008, pet.
dism’d) (holding that charge which incorrectly applied the law of parties to self-
defense instruction was erroneous). Assuming that the charge in this case
erroneously failed to apply the law of parties to appellant’s defensive issues, we
hold that appellant cannot show egregious harm because the evidence summarized
above supports appellant’s guilt as a principal. See Vega, 394 S.W.3d at 521–22
(applying Almanza factors to conclude appellant suffered no egregious harm);
Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999) (stating that when the
evidence clearly supports a defendant’s guilt as a principal actor, “any error of the
trial court in charging on the law of parties is harmless”). We overrule appellant’s
second issue.

III.   Confrontation and Cross-examination of Expert Witness

       In this issue, appellant contends that the trial court erred in overruling his
objections to the testimony of William Davis, a chemist and director of the

                                          11
physical evidence department of the Harris County Medical Examiner’s office.
After independently analyzing gunshot residue reports prepared by others in his
office, Davis testified that no gunshot residue was found on anyone in Vargas’s
car. Appellant invokes the Supreme Court’s decision in Bullcoming v. New
Mexico, 131 S. Ct. 2705 (2011), to argue that Davis’s testimony violated his Sixth
Amendment right to confront and cross-examine his accusers because Davis did
not prepare the reports himself and therefore had no personal knowledge on which
to be cross-examined.

      A.     The applicable law

      The Confrontation Clause affords a criminal defendant the right to confront
the   witnesses    against    him.    U.S.    Const.    amend.    VI;    Burch     v.
State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). Testimonial evidence is
inadmissible unless (1) the witness appears at trial and is cross-examined or (2) the
witness is unavailable and the defense had an opportunity to cross-examine.
Burch, 401 S.W.3d at 636. “[T]estimonial statements are those ‘that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” Id. (quoting
Crawford v. Washington, 541 U.S. 36, 52 (2004)). Forensic reports have been
recognized as testimonial statements. Burch, 401 S.W.3d at 636–37.

      In Bullcoming, the prosecution presented a forensic lab report certifying that
the defendant’s blood alcohol content was above the threshold for aggravated
driving while intoxicated. 131 S. Ct. at 2709. Instead of calling the analyst who
signed the report to testify, the prosecution called another analyst who was familiar
with the lab’s testing procedures, but had neither participated in nor observed the
testing of the blood sample. Id. Because the report was the testimonial statement of
the analyst who performed the tests, the Supreme Court held that it could not be

                                         12
offered into evidence through the testimony of a “surrogate” witness. Id. at 2710.

      Similarly, in Burch, the prosecution submitted a lab report signed by both
the testing analyst and the reviewing supervisor certifying that four green Ziploc
bags contained cocaine. Burch, 401 S.W.3d at 635. At trial, however, the
prosecutor called only the supervisor to testify. Id. Although the supervisor
testified that she reviewed the original process, she did not indicate whether she
had personal knowledge that the tests were done correctly or that the analyst did
not fabricate the results. Id. at 637. Further, the supervisor testified that the analyst
who had performed all of the tests on the cocaine no longer worked for the lab, but
she offered no explanation as to why the analyst was no longer employed, and
there was no indication that the appellant had a pre-trial opportunity to cross-
examine the analyst. Id. The Court of Criminal Appeals held that the reviewing
supervisor’s testimony did not satisfy the appellant’s constitutional rights. Id.

B.    Davis independently analyzed the test results and was cross-
      examined concerning his opinions
      Davis, a chemist, testified that he is the director of physical evidence at the
Harris County Institute of Forensic Science, overseeing the firearms and trace-
evidence sections. It is undisputed that Davis is an expert in gunshot-residue
testing. Davis explained that samples submitted to the lab are tested using a
scanning electron microscope to generate raw data concerning the presence of
certain heavy metallic elements. The data is then analyzed to determine whether a
specific combination of these elements indicates the presence of gunshot residue.
Davis testified in detail concerning the testing procedure and protocols followed to
ensure the accuracy of the tests. Davis also testified that, had the testing been
performed incorrectly, particles of certain elements identified in the samples would
not have appeared. In performing his analysis of the samples, Davis reviewed the


                                           13
work of other analysts in the lab who performed the testing of the samples and
obtained the data from the microscope.

       Based on his independent analysis of the raw data as well as other
information relating to the testing process, Davis testified that no gunshot residue
was present on the samples taken from Sandoval, Vargas, and Hernandez. No
written analysis was offered into evidence. Davis was also cross-examined at
length concerning the basis for his opinions and the accuracy of the testing process.
Because Davis independently analyzed the data and offered his own opinions,
testified at length and was cross-examined concerning the basis for his opinions,
and was not merely relying on the written analysis of others, this case is
distinguishable from Bullcoming and Burch and does not support a holding that
admitting Davis’s testimony violated the Confrontation Clause. See Paredes v.
State, 439 S.W.3d 522, 525–26 (Tex. App.—Houston [14th Dist.] 2014, pet.
granted) (holding no violation of constitutional rights occurred when testifying
expert independently developed her opinions from raw DNA data prepared by non-
testifying analysts, testified at length and was cross-examined, and no hearsay
documents were admitted into evidence). We overrule appellant’s third issue.

IV.    Cross-Examination of Witness’s Bias

       In his fourth issue, appellant contends that the trial court erred in limiting his
cross-examination of David Salinas as to bias. Salinas had pleaded guilty to murder
of the complainants and was awaiting sentencing at the time of appellant’s trial.
Appellant complains that, although his counsel was allowed to cross-examine
Salinas concerning his hopes for leniency in the pending charge,1 counsel was not

       1
          Before the jury, Salinas acknowledged his guilty plea on the murder charges, testified
that he understood that the range of punishment he could receive from the trial court was 5 to 99
years in prison, and he also testified that his plea required him to testify truthfully. Salinas
testified similarly concerning his guilty plea before the jury, and admitted to the jury that he was
                                                14
allowed to inquire into Salinas’s similar hopes regarding an unrelated federal
methamphetamine charge under investigation.

       The constitutional right of confrontation includes the right to cross-examine
the witnesses and the opportunity to show that a witness is biased or that his
testimony is exaggerated or unbelievable. Irby v. State, 327 S.W.3d 138, 145 (Tex.
Crim. App. 2010). Nonetheless, the trial judge retains wide latitude to impose
reasonable limits on such cross-examination “based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Id. (quoting Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986)). To be admissible, the proponent of
evidence regarding other pending charges against the witness must establish some
causal connection or logical relationship between the charges and witness’s
testimony at trial. See Carpenter v. State, 979 S.W.2d 633, 634–35 (Tex. Crim.
App. 1998). The proponent is not required to show actual bias, but is required to
make a showing of the witness’s potential for bias. Id. at 634 n.4.

       Here, appellant points to Salinas’s testimony, outside the jury’s presence,
that he knew he was being investigated by federal law enforcement concerning the
sale of methamphetamine, and that he anticipated the federal authorities would not
file a methamphetamine charge on him as a result of his testimony in this case.
Viewing Salinas’s testimony in its entirety, however, the trial court could have
reasonably concluded that appellant failed to establish a causal connection or
logical relationship between Salinas’s testimony and the potential for bias as a
result of a pending federal investigation.

       Specifically, Salinas also testified that, although he had heard of the federal
investigation, he was not aware of agreements with regard to any other cases.

hopeful that he would get the lowest possible sentence.

                                               15
Concerning the possibility of a federal charge, Salinas testified that he did not
know whether federal authorities would decline to charge him with the offense if
he testified, although he acknowledged “hoping.” On redirect by the prosecutor,
however, Salinas affirmed that no one, including his attorney, had ever told him
that his testimony would alter the result of the federal investigation, and he did not
believe that was the case. Salinas also denied testifying for the purpose of altering
the outcome in the federal investigation. In response to further defense questioning,
Salinas explained that he had been confused by counsel’s questioning and again
denied that he would seek leniency from federal investigators based on his
testimony in this case. Salinas’s lawyer also represented to the trial court that he
had no knowledge whether Salinas would be charged in a possible federal case
because he had not spoken to any federal authorities, and that as far as he knew,
Salinas had no expectation of receiving any benefit from testifying. At the
conclusion of the hearing, the trial court denied defense counsel’s request to cross-
examine Salinas concerning potential bias resulting from the possible federal
charge.

      Appellant presented no evidence that any federal charge was actually
pending against Salinas, and at most showed only that Salinas was being
investigated for an unrelated federal methamphetamine charge. Although Salinas
originally stated that he anticipated no federal charges would be filed as a result of
his testimony in this case, he later testified that there was no agreement concerning
leniency in the federal investigation if he testified and that he had no expectation of
any leniency in that matter as a result. His attorney made similar representations to
the trial court. We conclude that the trial court did not abuse its discretion in
denying defense counsel’s request to cross-examine Salinas concerning the
possible federal charge. See id. at 634 n.4 (“Naked allegations which do no more


                                          16
than establish the fact that unrelated federal charges are pending do not, in and of
themselves, show a potential for bias.”). We overrule appellant’s fourth issue.

V.    Exclusion of Evidence of a Prior Act of Aggression by a Complainant

      In his fifth and final issue, appellant contends that the trial court erred by
excluding evidence of a prior act of aggression by a complainant. One of the
defense witnesses, Jorge Gonzalez, testified that during the continuation of the
altercation in the La Cave parking lot, someone from the complainants’ group
threatened to “put three bullets” in Christopher Garcia’s chest. The State objected
on hearsay grounds, and the trial court sustained the objection. Appellant did not
argue that any exception to the hearsay rule applied or that the testimony was
otherwise admissible.

      On appeal, appellant contends that the evidence is admissible because it is
evidence of a pertinent character trait of the victim of a crime offered by the
accused, and because specific instances of conduct are admissible in cases in which
a person’s character or character trait is an essential element of a charge, claim or
defense. See Tex. R. Evid. 404(a)(2), 405(b); Torres v. State, 117 S.W.3d 891, 894
(Tex. Crim. App. 1983) (“When a defendant in a homicide prosecution raises the
issue of self-defense, he may introduce evidence of the deceased’s violent
character.”). However, once the State lodged its hearsay objection to Gonzalez’s
testimony, the burden shifted to appellant, as the proponent of the evidence, to
demonstrate that it was admissible. Because appellant did not make the arguments
he raises on appeal in the trial court, he has failed to preserve the complaint for our
review. See Tex. R. App. P. 33.1(a)(1)(A); Vinson v. State, 252 S.W.3d 336, 340
(Tex. Crim. App. 2008) (“[O]nce an objection is made, the proponent must
demonstrate that the proffered evidence overcomes the stated objection.”); see also
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (to preserve a

                                          17
complaint about the trial court’s exclusion of evidence, the proponent must tell the
trial court “why the evidence was admissible”). Because appellant’s challenge was
not preserved, we do not address it. We overrule appellant’s fifth issue.

                                   CONCLUSION

      We overrule appellant’s issues and affirm the trial court’s judgment.




                                       /s/    Ken Wise
                                              Justice




Panel consists of Justices Boyce, Busby, and Wise.
Publish — TEX. R. APP. P. 47.2(b).




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