AFFIRMED and Opinion Filed October 10, 2018




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-01162-CR

                        BRANDON CHARLES TEMPLE, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. F14-34443-L

                            MEMORANDUM OPINION
                       Before Justices Bridges, Francis, and Lang-Miers
                                  Opinion by Justice Francis
       A jury convicted Brandon Charles Temple of murder, and the trial court assessed

punishment at forty-five years in prison. In two issues, appellant complains about the admission

of extraneous offense evidence and the exclusion of first-aggressor evidence. We affirm.

       Appellant shot and killed Christopher Guajardo on a McDonald’s restaurant parking lot.

Three eyewitnesses testified Guajardo was on his knees in a surrender position immediately before

appellant shot him. One of the witnesses, Georgina Leos, was working at McDonald’s that night

when Guajardo walked up to the drive-thru window and asked for directions to McKinney, Texas.

Leos told him McKinney was a forty-five-minute drive and asked him if he had a car. Guajardo

told her no. Leos then tried to place two telephone calls for Guajardo, but no one answered. When
a car pulled up in the drive-thru, Guajardo told Leos he would walk to McKinney and left the

drive-thru area. Leos said Guajardo was nice, polite, calm, and did not seem aggressive.

       A few minutes later, Leos was leaving work and noticed Guajardo talking to a man and

woman outside an SUV parked near her car. As Leos was getting into her car, she saw a “scuffle”

or “really fast” movement and then saw the man push Guajardo. Guajardo shook his head “no,”

threw his hands in the air, and got down on his knees. The man opened the back window of the

SUV, pulled out a shotgun, and shot Guajardo. The man got into his SUV and drove off. Leos

was in shock but took pictures of the fleeing vehicle with her cell phone. After the vehicle left,

she went to help Guajardo and called 911. Guajardo died at the scene from a shotgun wound to

the torso. The slug damaged multiple organs and ribs as it traveled through his body.

       Joel Barbosa was in the drive-thru lane when he saw Guajardo walk up to the SUV, lean

against the passenger side of the car, and talk to the man and woman inside. He could not hear the

conversation. Shortly after, the couple got out and walked to the back of the car. They were

talking to each other and then “just broke apart.” Barbosa said he did not see a “fistfight,” but the

man pushed Guajardo “to get him away from him.” Guajardo walked away, and the man opened

the back of the SUV and pulled out a shotgun. Barbosa said Guajardo kneeled down on his hands

and knees, and the man shot him. Afterwards, the shooter appeared “very calm,” threw the shotgun

into the back of the vehicle, and “took off real fast.” Barbosa said the shooter did not behave as if

he were afraid at any time during the interaction. Kiara Rock was also in the drive-thru lane. She

looked over and saw a man shoot a second man who was on his knees on the ground “surrendering

himself.” Rock did not see what happened before the shooting.

       Police talked to witnesses at the scene, obtained the photographs that Leos took of the

suspect’s vehicle, and retrieved videos from McDonald’s and an adjacent motel. The videos

indicated the time between Guajardo’s initial contact with appellant and the murder was less than

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three minutes. Using the videos and photographs of the suspect vehicle, Irving police Detective

Adam Mayorga was able to identify the owner of the vehicle as Tyisha Promise, appellant’s

girlfriend. In addition, a cap found at the scene contained appellant’s DNA. Mayorga testified,

without objection, that appellant was not “legally able” to possess a firearm outside of his house.

       At trial, Promise testified she and appellant and been drinking on the night of the shooting

and stopped at McDonald’s to get food. They were sitting in her SUV on the parking lot at about

1 a.m. when Guajardo leaned into the passenger-side window where she was seated and asked

about “getting to McKinney.” Promise said she told Guajardo numerous times that she did not

know directions to McKinney, but he continued to ask. Appellant then told Guajardo he could not

give him a ride, and Guajardo responded that he was not looking for a “MF’ing ride.”

       At that point, appellant got out of the car and met Guajardo at the back of the vehicle, where

they exchanged words. Promise said appellant was walking back to the driver’s door when

Guajardo hit him. A fight ensued, and both men threw punches. Guajardo was knocked to the

ground and got “right back up.” Promise said Guajardo was grabbing his shirt near his waistband,

and she believed he was about to “grab something . . . perhaps a gun.” Appellant opened the back

hatch window, grabbed a shotgun, and shot Guajardo. Unlike the other eyewitnesses, Promise

said Guajardo never got on his knees or raised his hands.

       After the shooting, she and appellant got in the vehicle and left. Promise said Guajardo

seemed “off” and became “real aggressive.” She testified she and appellant feared for their safety

that night. Promise also testified, without objection, that appellant was not legally allowed to carry

a gun outside the house.

       In his first issue, appellant complains about the admission of extraneous offense evidence

that he was not allowed to possess a firearm. The evidence was adduced during the testimony of

Mayorga and Promise, and appellant acknowledges he did not object. Nevertheless, he contends

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no objection was required under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993),

because his complaint involves either an absolute right or a right that must be implemented by the

system unless expressly waived. We disagree.

        Since Marin, the court of criminal appeals has rejected a claim that the improper admission

of evidence falls within one of the limited categories that may be addressed on appeal without

proper objection. See Saldano, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). In Saldano, the

defendant did not object to testimony that concerned his rights under the equal protection clause.

After a discussion of Marin and the types of cases that may be raised for the first time on appeal,

the court concluded the defendant was required to object to the evidence to complain on appeal.

Id. at 889–90.

        Here, appellant’s issue concerns the admission of evidence that he was not legally allowed

to possess a firearm on the night he shot Guajardo. Because his issue does not fall within one of

those categories that may be addressed on appeal without objection, and because appellant failed

to object, appellant has not preserved his complaint for review on appeal. See Saldano, 70 S.W.3d

at 890; Fields v. State, No. 03-06-00106-CR, 2009 WL 638180, at *1–2 (Tex. App.—Austin

March 12, 2009, pet. ref’d) (mem. op.) (concluding admission of extraneous offense evidence not

fundamental error and failure to object waived review); Love v. State, No. 13-01-00342-CR, 2002

WL 34230836, at *1 (Tex. App.—Corpus Christi July 3, 2002, pet. ref’d) (mem. op.) (same). We

overrule the first issue.

        In his second issue, appellant complains the trial court erred by excluding evidence of

Guajardo’s juvenile convictions for assault and resisting arrest in 2000 and 2002. He contends the

evidence was relevant to show Guajardo was the first aggressor and argues its exclusion impacted

his claim of self-defense. Assuming without deciding the evidence was relevant to show Guajardo

was the first aggressor, we conclude its exclusion was harmless.

                                               –4–
       When evaluating harm from non-constitutional error flowing from the exclusion of relevant

evidence, we examine the record as a whole, and if we are fairly assured the error did not influence

the jury or had but a slight effect, we conclude the error was harmless. Ray v. State, 178 S.W.3d

833, 836 (Tex. Crim. App. 2005).

       Although the trial court excluded evidence of fifteen- and seventeen-year-old juvenile

convictions as first-aggressor evidence, the court did allow appellant to admit a December 2010

psychological assessment of Guajardo. The assessment noted, in part, the following:

       [Appellant] is seeking services due to persistence of sxs [sic] and “bad thoughts.”
       [Appellant] reports that thoughts of harming others “pop up” in his head at random
       times. [Appellant] says he has various plans of harming others (no weapons or
       organization of plan) however he denies any intent, and states these thoughts have
       occurred for yrs. [Appellant] denies thoughts of harming his children or loved ones,
       and instead says thoughts are about strangers.

       Thus, during its deliberations, the jury had before it evidence that Guajardo had thoughts

of harming strangers that, given the factual allegations in this case, was more compelling to his

self-defense theory than the much older juvenile convictions for assault and resisting arrest.

Having examined the record as a whole, we are fairly assured that evidence of the juvenile

convictions would have had only slight effect on the jury and its exclusion was therefore harmless.

We overrule the second issue.

       We affirm the trial court’s judgment.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
171162F.U05




                                                –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 BRANDON CHARLES TEMPLE,                           On Appeal from the Criminal District Court
 Appellant                                         No. 5, Dallas County, Texas
                                                   Trial Court Cause No. F14-34443-L.
 No. 05-17-01162-CR        V.                      Opinion delivered by Justice Francis;
                                                   Justices Bridges and Lang-Miers
 THE STATE OF TEXAS, Appellee                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 10, 2018.




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