Opinion issued January 14, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00597-CR
                           ———————————
                        DAVID FLORES III, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


             On Appeal from the County Criminal Court No. 91
                          Tarrant County, Texas
                     Trial Court Case No. 1507745




1
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred this appeal from the Court of Appeals for the Second District of Texas
     to this Court. See Misc. Docket No. 18–9083, Transfer of Cases from Courts of
     Appeals (Tex. Jun. 19, 2018); see also TEX. GOV’T CODE § 73.001 (authorizing
     transfer of cases). We are unaware of any conflict between precedent of that court
     and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
                          MEMORANDUM OPINION

      David Flores appeals his misdemeanor conviction for resisting arrest. TEX.

PENAL CODE § 38.03. In four issues, he argues that the evidence was insufficient to

support his conviction, that his conviction should be reversed due to structural

errors, and that the trial court erred by refusing his requested jury instruction and

by excluding evidence. We affirm.

                                    Background

      In June 2017, Flores was driving a white sedan in Fort Worth. Officer J.

Henderson of the Fort Worth Police Department was on patrol when he noticed the

white sedan driving below the posted speed limit. He entered the car’s license plate

number into his computer system inside his patrol vehicle and discovered that the

registration on the vehicle had expired. Officer Henderson slowed down to get

behind Flores and initiate a traffic stop, but Flores pulled up next to Officer

Henderson. Eventually, Flores moved forward and Officer Henderson drove

behind him and activated his front emergency lights.

      Flores pulled into the parking lot of a gas station and stopped. When Officer

Henderson approached him, Flores rolled down the driver’s side window. Officer

Henderson was in uniform and identified himself to Flores, explaining that the

registration on Flores’s car had expired. He asked Flores for his driver’s license

and insurance. Flores responded that he only pulled over because he thought there


                                         2
was an emergency. Officer Henderson responded that there was not an emergency

but that he was detaining Flores because of his expired vehicle registration. Flores

told the officer that he was going to record the encounter and pulled out his cell

phone, pointing it in Officer Henderson’s face. He asked Officer Henderson for his

name and badge number, and Officer Henderson again asked for Flores’s driver’s

license and insurance. Flores did not provide them and started rolling up his

window. Officer Henderson opened Flores’s car door and positioned his body so

that Flores could not close the door. When Flores refused to give identifying

information, Officer Henderson requested that additional officers respond to the

scene.

         Officer C. Cook and Officer O. Moncada of the Fort Worth Police

Department arrived and took over the stop.2 Flores remained inside his car,

recording with his cell phone, and refusing to provide his driver’s license and proof

of vehicle insurance to the officers. Flores repeatedly said, “You activated your

emergency lights. What is your emergency? How may I help you?” The officers

informed Flores that state law required him to provide his driver’s license.

Eventually, Flores told the officers his name and date of birth.3 When Officers

Cook and Moncada walked away from the car, Flores closed and locked his car

2
         Officer Cook was Officer Moncada’s field training officer.
3
         Officer Henderson left the scene once Flores provided his name and date of birth.
         He did not witness the remaining events.
                                             3
door. Flores cracked his window, and the officers attempted to communicate with

him through it.

      The officers discovered that the registration on Flores’s car had been

renewed, but the license plate had not been changed. Officer Cook issued Flores

two citations: (1) no driver’s license on person and (2) displaying a false or

fictitious license plate. When the officers presented the citations to Flores, they

told him that he would be free to leave once he signed the citations, but Flores still

refused. The officers requested a supervisor to respond to the scene.

      Sergeant B. Wright arrived and asked Flores to provide his driver’s license.

When Flores refused to roll down the window and provide his license, Sergeant

Wright told him that the officers would break his window, remove him from the

car, and arrest him if he did not cooperate. Flores continued to refuse. The officers

decided to arrest Flores. In order to gain access, Officer Moncada broke the car

window with a baton.

      When the officers attempted to physically removed Flores from his car, he

pulled away and began flexing his arms. Once removed from the vehicle, Flores

and the officers fell to the ground. While on the ground, Flores continued to pull

his arms away from the officers as they tried to handcuff him. They could not

handcuff Flores because he was flexing his arms away from them. In order to gain

compliance, Officer Cook struck Flores twice in the face, which caused him to


                                          4
immediately comply and put his hands behind his back. Officer Cook and Flores

were injured during the arrest. Flores was transported to the hospital. The officers

inventoried the car and found Flores’s driver’s license.

      Flores was charged with resisting arrest. The jury heard testimony from

Officers Henderson, Moncada, and Cook and Sergeant Wright and viewed body

camera footage from Officer Moncada and Officer Cook.

      Flores testified that the events transpired as the jury saw in the video. He

explained that he acted the way that he did because he wanted to be free and go

home to his wife. He explained that the stop did not make sense to him, and he was

attempting to exercise his rights. He had taken a traffic seminar in 2010, and the

teachings of the seminar led him to believe that he did not need to provide his

driver’s license to a police officer. The jury found Flores guilty, and the trial court

sentenced him to 90 days’ confinement in jail, probated for 15 months, and a

$2,000 fine.

                            Sufficiency of the Evidence

      In his first issue, Flores challenges the sufficiency of the evidence to support

his conviction.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we consider all the

evidence in the light most favorable to the verdict to determine whether, based on


                                          5
that evidence and the reasonable inferences therefrom, the jury was rationally

justified in finding guilt beyond a reasonable doubt. Merritt v. State, 368 S.W.3d

516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318–

19) (1979)). We consider all evidence in the record, whether it was admissible or

inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). The

jury is the sole judge of credibility and weight to be given to the testimony of the

witnesses, and the jury may accept or reject all or any part of a witness’s

testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). In the

event of conflicting evidence, we presume the jury resolved conflicts in favor of

the verdict and defer to that determination. Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      A person commits the offense of resisting arrest “if he intentionally prevents

or obstructs a person he knows is a peace officer . . . from effecting an arrest,

search or transportation of the actor or another by using force against the peace

officer or another.” TEX. PENAL CODE § 38.03(a). The phrase “using force against

the peace officer or another” means “violence or physical aggression, or an

imminent threat thereof, in the direction of and/or into contact with, or in

opposition or hostility to, a peace officer or another.” Finley v. State, 484 S.W.3d

926, 928 (Tex. Crim. App. 2016) (quoting TEX. PENAL CODE § 38.03(a) and Dobbs

v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014)).


                                         6
      “One who uses force to shake off an officer’s detaining grip, whether by

pushing or pulling, may be guilty of resisting arrest under section 38.03.” Clement

v. State, 248 S.W.3d 791, 797 (Tex. App.—Fort Worth 2008, no pet.) (citing

Sartain v. State, 228 S.W.3d 416, 424 (Tex. App.—Fort Worth 2007, pet. ref’d). In

Finley, the Court of Criminal Appeals held that a defendant who “actively pulled

away” from an officer who was attempting to arrest him was resisting arrest. 484

S.W.3d at 929. In that case, the defendant tried to pull his arm “forward towards

his body—in the opposite direction from the officer’s efforts” when an officer tried

to handcuff him. Id. at 928–29.

B.    Analysis

      Pulling away from an officer is sufficient evidence to support a conviction

for resisting arrest. See id. The jury heard testimony regarding Flores’s interactions

with the officers from Officer Moncada, Officer Cook, Sergeant Wright, and

Flores. Officer Moncada testified that once the officers broke the car window,

Flores “went from passively resisting us . . . to actively resisting us by pulling his

arms away and flexing, preventing us from effecting an arrest and getting him in

restraints.” After they pulled Flores from the vehicle and were standing next to it,

Flores raised his arms and pulled away to prevent the officers from restraining him.

Once they tripped and fell to the ground, Flores failed to comply with verbal

commands to place his arms behind his back and continued to pull his arms away


                                          7
from the officers. Officer Moncada secured one of Flores’s arms behind his back,

and Officer Cook had to use distractionary strikes before Flores complied to move

his other arm behind his back. According to Officer Cook, Flores was “flexing his

arms upward” and “using physical force,” which prevented Officer Cook from

handcuffing him. Sergeant Wright concurred that Flores “wouldn’t give his arms.

He’d pull away. Stiffen up his arms and make it really difficult to get a handle on

him.”

        The jury also viewed video evidence that corroborated the testimony of the

officers. Officer Moncada’s body camera shows Flores pulling both of his arms

away as he was removed from the vehicle. Once on the ground Flores pulled his

left arm away from Officer Moncada as the officer attempted to handcuff him.

Officer Cook’s body camera shows Flores pulling both of his arms away from the

officers as they remove him from the vehicle.

        Flores testified that he did not use force and that it was never his intention to

resist arrest. On appeal, Flores admits that he pulled away from the officers but

claims he did so in an effort to hold on to his cellphone. But Officer Cook’s body

camera video shows Flores pulling his arm away from officers and continuing to

struggle, beyond an attempt to hold a cell phone. The jury was free to judge the

credibility of the witnesses, and we defer to the jury’s decision when that decision

is based upon an evaluation of credibility. See Lancon, 253 S.W.3d at 705.


                                            8
       Here there was evidence that Flores used force to resist being arrested by

pulling his arms away from officer Moncada. Accordingly, we hold that a

reasonable trier of fact could have found beyond a reasonable doubt that Flores

used force against the officers by pulling away from them. See Finley, 484 S.W.3d

at 929. Viewing the evidence in the light most favorable to the verdict, we hold

that the evidence is sufficient to support the jury’s verdict. See id. We overrule

Flores’s first issue.

                            Alleged Structural Errors

       Flores contends that his conviction should be reversed based on structural

error. He argues that the admission of photographs of Officer Cook’s injuries and

the substance of the State’s closing arguments were errors that require reversal. We

disagree.

A.     Standard of Review

       Structural errors (those which involve fundamental constitutional systemic

requirements) defy analysis by harmless error standards. Mendez v. State, 138

S.W.3d 334, 338 (Tex. Crim. App. 2004). More specifically, a structural error is a

“defect affecting the framework within which the trial proceeds, rather than simply

an error in the trial process itself.” Id. at 340 (quoting Arizona v. Fulminante, 499

U.S. 279, 310 (1991)). Only error recognized by the United States Supreme Court

as structural is immune from harm analysis. Lake v. State, 532 S.W.3d 408, 411


                                         9
(Tex. Crim. App. 2017). The United States Supreme Court has found structural

errors in limited types of cases, including: a total deprivation of the right to

counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of

defendant’s race, violation of the right to self-representation at trial, violation of

the right to a public trial, and an erroneous reasonable-doubt instruction to the jury.

See Mendez, 138 S.W.3d at 340 (quoting Johnson v. United States, 520 U.S. 461,

468–69 (1997)).

B.    Analysis

      1.     Admission of Photographs

      First, Flores argues that the admission of photographs of Officer Cook’s

injuries was structural error and, therefore, his counsel was not required to object at

trial. He argues that photographs of the officer’s injuries are not relevant to prove

resisting arrest and instead prove the crime of assault of a public servant.

      Any error regarding admission of the photographs was not structural error.

Error regarding the erroneous admission of evidence, even error involving

constitutional issues, is categorized as “trial error.” Rey v. State, 897 S.W.2d 333,

345 (Tex. Crim. App. 1995). To preserve a complaint about the admission of

evidence, a defendant must timely object when the State offers the evidence at

trial. Swilley v. State, 465 S.W.3d 789, 795–96 (Tex. App.—Fort Worth 2015, no

pet.). When the State sought to admit the photographs as evidence during Officer


                                          10
Cook’s testimony, Flores’s counsel did not object but instead asserted “no

objection.”4 Flores failed to preserve his complaint for appellate review. See TEX.

R. APP. P. 33.1(a).

      We overrule Flores’s second issue regarding admission of the photographs.

      2.     State’s Closing Argument

      Second, Flores argues that the State’s closing argument was structural error

requiring reversal of his conviction. Flores contends that the State argued for

conviction based on a modified version of the statute and misstated the law in

closing argument by arguing that failing to comply with verbal instructions, failure

to put one’s hands behind one’s back, and failure to get out of the car demonstrate

resisting arrest. Even assuming that error occurred in closing argument, the error

was not structural. Prosecutorial misstatements of the law are improper, but they

are not constitutional in nature, and they are governed by the harm analysis set out

in Texas Rule of Appellate Procedure 44.2(b). Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998).




4
      Even if Flores had objected, the trial court would not have erred by admitting the
      photographs because they were relevant to prove the force Flores used against
      Officers Cook and Moncada. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App.
      2016) (“Relevant evidence is evidence having any tendency to make the existence
      of any fact that is of consequence to the determination of the action more probable
      or less probable than it would be without the evidence.”); see TEX. R. EVID. 401
      (relevant evidence defined); TEX. R. EVID. 402 (admissibility of relevant
      evidence).
                                          11
      Absent an objection to jury argument at trial, nothing is preserved for

review. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). The

objection must be timely and specific, and the defendant must pursue the objection

to an adverse ruling. Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002);

see also TEX. R. APP. P. 33.1(a)(1). Even if the argument is egregious and an

instruction to disregard would not have cured the harm, the complaint is forfeited if

the defendant did not object. Mathis, 67 S.W.3d at 926–267; see also Threadgill,

146 S.W.3d at 667. Flores concedes that his trial counsel never objected to the

State’s closing argument. Because Flores did not object to the portions of the

prosecutors’ closing argument that he complains of on appeal, he forfeited any

complaint associated with it. Wright v. State, 374 S.W.3d 564, 583 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d); TEX. R. APP. P. 33.1(a)(1).5


5
      Even if the complaint about closing argument had been preserved for our review
      and the closing argument was erroneous, Flores was not harmed by the allegedly
      erroneous argument. In assessing the impact of harm arising from jury argument
      error, reviewing courts consider whether the defendant was harmed under Rule of
      Appellate Procedure 44.2(b). See Berry v. State, 233 S.W.3d 847, 858–59 (Tex.
      Crim. App. 2007). Under that rule, non-constitutional errors “must be disregarded”
      if they did “not affect substantial rights.” TEX. R. APP. P. 44.2(b). In analyzing
      harm pertaining to improper jury arguments, reviewing courts consider the
      following: “(1) the severity of the misconduct (the magnitude of the prejudicial
      effect of the prosecutor’s remarks); (2) the measures adopted to cure the
      misconduct (the efficacy of any cautionary instruction by the judge); and, (3) the
      certainty of conviction absent the misconduct (the strength of the evidence
      supporting the conviction).” Berry, 233 S.W.3d at 858–59.

      Flores did not object to the allegedly improper statements so no instruction to
      disregard was given. The written charge correctly stated the law, instructing the
                                          12
      We overrule Flores’s second issue regarding the State’s closing argument.

                                    Mistake of Fact

      Flores contends that his conviction should be vacated and the case should be

remanded for a new trial because the trial court erred by refusing his requested

mistake of fact instruction in the jury charge.

A.    Standard of Review

      A defendant is entitled to an instruction on any defensive issue raised by the

evidence, whether that evidence is weak or strong, unimpeached or uncontradicted,

and regardless of how the trial court views the credibility of the defense. Allen v.

State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). “It is a defense to prosecution

that the actor through mistake formed a reasonable belief about a matter of fact if

his mistaken belief negated the kind of culpability required for commission of the

offense.” TEX. PENAL CODE § 8.02(a). When he raises evidence of a mistaken

belief as to the culpable mental state of the offense, a defendant is entitled to an

instruction on mistake of fact upon request. Celis v. State, 416 S.W.3d 419, 430


      jury to find Flores guilty if it found he intentionally prevented arrest by pulling his
      arms away from Officer Moncada. The evidence, including body camera video,
      showed Flores pulled his arms away from Officer Moncada as the officers
      attempted to handcuff him. See Mosley , 983 S.W.2d 249, 259–60 (Tex. Crim.
      App. 1998); see also Schultze v. State, 177 S.W.3d 26, 44–50 (Tex. App.—
      Houston [1st Dist.] 2005, pet. ref’d) (op. on reh’g) (though prosecutor’s argument
      improperly invoked matters outside record and no curative measures were taken,
      there was no harm given relatively minimal degree of misconduct and certainty of
      conviction).

                                            13
(Tex. Crim. App. 2013); Beggs v. State, 597 S.W.2d 375, 378 (Tex. Crim. App.

1980). A defendant is entitled to an instruction on the defense of mistake of fact if

there was evidence that, through a mistake, he formed a reasonable belief about a

matter of fact and his mistaken belief would negate his intent or knowledge. Celis,

416 S.W.3d at 430; Beggs, 597 S.W.2d at 378. The instruction applies only with

respect to elements that require proof of a culpable mental state. Celis, 416 S.W.3d

at 430.

B.    Analysis

      Flores requested that the jury be instructed to find him not guilty if it

believed or had a reasonable doubt that he had a “reasonable belief that the only

information he was required to provide to the officer was his name and date of

birth.”

      Flores’s alleged belief that he had to provide only his name and date of birth

to the officers does not negate the required mental state for any element of resisting

arrest. As charged, resisting arrest had two elements that required mental

culpability: (1) the defendant must intentionally prevent or obstruct an officer from

effecting arrest by using force against the officer; (2) the defendant must know the

person effecting his arrest is a peace officer. TEX. PENAL CODE § 38.03(a). Flores’s

mistaken belief that it was lawful to refuse to provide a driver’s license does not

negate any element of resisting arrest. Flores’s belief does not negate that he


                                         14
intentionally prevented or obstructed his arrest by using force against Officer

Moncada or that he knew Officer Moncada was a peace officer. Because the statute

does not require proof of a culpable mental state as to providing name and date of

birth, the mistake of fact instruction Flores sought did not negate the kind of

culpability required for the offense. TEX. PENAL CODE § 8.02(a); Celis, 416 S.W.3d

at 432.

      While Flores characterized his request as a mistake of fact instruction, he

appears to allege a mistake of law. Section 521.025 of the Transportation Code

provides that a person who holds a driver’s license must have the license in

possession while driving a car and must display the license when asked to do so by

a magistrate, court officer, or peace officer. TEX. TRANSP. CODE § 521.025(a)(1–2).

Ignorance of the law is not a defense to prosecution unless the defendant acted in

reasonable reliance upon (1) an official statement of law by an administrative

agency responsible for interpreting it or (2) a written interpretation of the law in a

court’s opinion or made by a public official with the responsibility of interpreting

that law. TEX. PENAL CODE § 8.03(b)(1–2). Even if Flores had requested a mistake

of law instruction, he would not have been entitled to it. The teachings of the

traffic seminar he allegedly attended do not fall within the exceptions for mistake

of law provided by statute. Moreover, Flores was charged with resisting arrest. His




                                         15
mistaken belief that it was lawful to refuse to provide a driver’s license does not

negate any element of resisting arrest. TEX. PENAL CODE § 38.03(a).

      The trial court did not err in denying Flores’s request for a jury instruction.

We overrule Flores’s third issue.

                              Admission of Evidence

      Flores contends that the trial court erred by excluding his proffered exhibit, a

document he received at a traffic seminar several years before the offense. The

exhibit purported to be the work of Eddie Craig, “[c]o-host of Rule of Law Radio.”

Flores testified that the document was part of the materials for a course he had

taken to learn what to do when stopped by police. Flores sought to admit the

document to show his state of mind as to whether he intended to commit the

offense. He stated that he was offering it not for the truth of the document but to

show that his behavior was attributable to the advice he had received in the

seminar. The State objected to the admission of the exhibit and the trial court

sustained the objection. Though the exhibit was not admitted, the trial court

allowed Flores to testify about the seminar’s teachings, his understanding of the

law, and his reasons for responding as he did to the officers.

A.    Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A


                                          16
trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008). We uphold a trial court’s

evidentiary ruling if it was correct on any theory of law applicable to the case. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

B.    Analysis

      The trial court did not abuse its discretion in excluding the exhibit because it

was not relevant and its probative value was substantially outweighed by a danger

of misleading and confusing the jury.

      “Relevant evidence is generally admissible, irrelevant evidence is not.”

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing TEX. R.

EVID. 402). “Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” TEX. R. EVID. 401. “Evidence does not

need to prove or disprove a particular fact by itself to be relevant; it is sufficient if

the evidence provides a small nudge toward proving or disproving a fact of

consequence.” Gonzalez, 544 S.W.3d at 370. “A ‘fact of consequence’ includes

either an elemental fact or an evidentiary fact from which an elemental fact can be

inferred.” Henley v. State, 493 S.W.3d 77, 84 (Tex. Crim. App. 2016). Although

relevant evidence need not independently prove an element of the charged offense,


                                           17
it must not be “wholly unconnected to an elemental fact.” Id. “An evidentiary fact

that stands wholly unconnected to an elemental fact, however, is not a ‘fact of

consequence.’” Id. If proffered evidence influences no issue in the case, then that

evidence is irrelevant and inadmissible. Id.

      The State was required to prove that Flores intentionally prevented or

obstructed Officer Moncada from effecting his arrest by using force against Officer

Moncada. See TEX. PENAL CODE § 38.03(a). While Flores’s intent is a fact of

consequence, his exhibit did not prove lack of intent to commit the offense of

resisting arrest. See Henley, 493 S.W.3d at 88. Flores’s specific conduct that

constituted resisting arrest was neither attributable to nor explained by the exhibit.

It had no tendency to prove that he lacked the intent to obstruct the officer when he

pulled his arms away from Officer Moncada. The trial court properly excluded the

exhibit because it was not relevant.

      Even assuming the document was relevant, the trial court did not err in

excluding the exhibit because it was substantially more prejudicial than probative.

The trial court may exclude relevant evidence “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403; see Gigliobianco v. State, 210

S.W.3d 637, 640 (Tex. Crim. App. 2006); Montgomery v. State, 810 S.W.2d 372,


                                         18
388 (Tex. Crim. App. 1990). When conducting a Rule 403 analysis, a court must

balance the probative force of and the proponent’s need for the evidence against

(1) any tendency of the evidence to suggest decision on an improper basis; (2) any

tendency of the evidence to confuse or distract the jury from the main issues;

(3) any tendency of the evidence to be given undue weight by a jury that has not

been quipped to evaluate the probative force of the evidence; and (4) the likelihood

that presentation of the evidence will amount to undue delay. Gigliobianco, 210

S.W.3d at 641–42. The probative force of evidence refers to how strongly it serves

to make the existence of a fact of consequence more or less probable. Gonzalez,

544 S.W.3d at 372. We will uphold a trial court’s ruling on a Rule 403 balancing

test, whether explicit or implied, if it is within the “zone of reasonable

disagreement.” Jamari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st

Dist.] 2008, no pet.); see also Martinez, 327 S.W.3d at 736 (When reviewing the

trial court’s determination of probative and prejudicial value of evidence under

Rule 403, appellate courts reverse only upon showing of clear abuse of discretion).

      Here, the probative value was low. The document containing misstatements

of law did not tend to make it more or less likely that Flores resisted arrest by using

force against Officer Moncada or that he knew Officer Moncada was a peace

officer. Consequently, Flores’s need for the evidence was weak. We evaluate the

defendant’s need for the evidence by looking at whether the fact related to a


                                          19
disputed issue and whether the State had other evidence establishing that fact.

Gonzalez, 544 S.W.3d at 372. Flores presented other evidence to explain his

actions. He testified about what he had been taught in the seminar, his

understanding of the law, and the reasons he responded to the officers as he did.

The jury also viewed video of Flores during the encounter and could observe his

actions and demeanor. This factor weighs in favor of exclusion.

      The evidence was likely to confuse the jury. The trial court explained: “The

Court is concerned that it would create confusion for the jury and be misinterpreted

as actual evidence, which is, in fact hearsay evidence.” The document contained

several misstatements of law that could have distracted the jury from deciding the

law based on the court’s instructions. The jury could have easily misinterpreted the

exhibit. This factor weighs in favor of exclusion.

      Finally, while introducing the document would not have been time

consuming, taking the time to assure that the jury had the correct impression of the

law after they viewed the document containing misstatements of the law could

have been a time-consuming distraction. This factor supports the court’s decision

to exclude the evidence.

      Consequently, the trial court did not err in excluding the evidence under

Rule 403. We overrule Flores’s fourth issue.




                                         20
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Keyes, Lloyd, and Kelly.

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




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