Opinion issued August 30, 2018




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00541-CR
                           ———————————
              REYMUNDO HAMELTON GARCIA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1442404


                         MEMORANDUM OPINION

      A jury found appellant, Reymundo Hamelton Garcia, guilty of the felony

offense of murder1 and assessed his punishment at confinement for twenty years. In




1
      See TEX. PENAL CODE ANN. § 19.02(b), (c) (Vernon 2011).
two issues, appellant contends that the trial court erred in denying his motion to

suppress evidence and excluding the testimony of his expert witness during the guilt

phase of trial.

       We affirm.

                                   Background

       Adan Lopez Paz testified that in November 2013, he lived in an “apartment”

in a warehouse, while the complainant, Ernest Ybarra, lived at the same property in

a trailer. On the night of November 5, 2013, Paz, while sleeping, was awakened by

a “bang,” a “loud” “hard bang.” At the same time, he heard his car alarm sound, and

he thought that someone, who was “drunk,” had “hit [his] car.” Paz then heard the

complainant yelling and loudly screaming for about twenty minutes. “[S]cared,”

Paz stayed inside his apartment and telephoned the owner of the property, Abel

Trevino, to tell him that “there was somebody that was crazy” outside of his

apartment. When the screaming stopped, Paz opened his apartment door and saw

the complainant on the ground. Thinking that the complainant was “drunk,” Paz

walked passed him, went to look at his car, and moved it to another location on the

property.

       After Paz moved his car, Trevino arrived at the property and asked Paz what

had happened. Trevino and Paz then went to “check[] . . . out” the complainant.

When Trevino touched the complainant to “see if he was okay,” he discovered that


                                         2
the complainant had been shot and was dead. As Trevino and Paz walked out of the

area where the complainant was located, they saw appellant, who was “c[oming] out

of []his trailer” with a firearm, a “large” revolver, “.38, .357 [caliber].” Appellant

had a conversation with Trevino, which Paz did not hear. And Trevino called for

emergency assistance.

      The next day, Paz notified a law enforcement officer who was at the property

that he had found a bullet in the taillight of his car. He, at the officer’s request, then

moved his car back to the location where it had been the previous night when his car

alarm had sounded.

      Paz explained that although he had “[n]ever had any issues” with the

complainant, he had stayed away from the complainant because he had “heard that

he was a bully” and “liked to pick on people for no reason.” Paz noted, however,

that he had never actually seen the complainant drunk or “picking on people.” And

he had never seen the complainant “walking around with two big knives.”

      Trevino testified that he owns approximately ten properties, including a

warehouse with “a couple of apartments” inside. He also has several trailers on the

warehouse property that he rents to homeless individuals. Trevino explained that

the complainant had rented a trailer at the warehouse property for more than a year.

Although the complainant would play music loudly outside of his trailer, Trevino

had never received any complaints about the music.


                                            3
      On the night of November 5, 2013, Trevino, who was not at the warehouse

property, received a telephone call from Paz. Trevino arrived at the property within

ten minutes of the telephone call and found Paz, who had just moved his car. Trevino

then went to appellant’s trailer, and appellant “walked out” holding “a gun in his

hand.” Because Trevino “did not like guns on [his] property” and appellant had only

been living in his trailer for one day, he told appellant to leave. At the time, appellant

appeared “[n]ormal” and did not tell Trevino about the shooting or that he had felt

threatened. According to Trevino, the firearm that he saw in appellant’s hand was a

“big gun,” a revolver, “like a .357 [caliber].”

      After Trevino told appellant to leave the property, appellant went back into

his trailer and came out with a box. Trevino did not see appellant’s firearm, but he

believed that it was inside the box. After appellant left the property, Trevino then

began looking for the complainant because “the door of his trailer was open” and he

was “missing.” Trevino found the complainant in a hallway in a fetal position.

Thinking that the complainant was “drunk,” he “pushed him,” but the complainant

did not move. Trevino ran outside, retrieved his cellular telephone from his truck,

and called for emergency assistance, telling the operator that appellant was “getting

away.”

      Trevino explained that at the time he asked appellant to the leave the property,

he “didn’t know what had happened.” He noted that he did not see any firearms,


                                            4
knives, or weapons near the complainant. In fact, Trevino did not see any firearm

that night, other than the one that appellant was carrying. And he denied telling the

other tenants at the property that the complainant was “trouble.”

       Houston Police Department (“HPD”) Sergeant C. Howard testified that on the

night of November 5, 2013, he and his partner, HPD Officer R. Lujan, responded to

a call regarding “a homicide scene.” Howard noted that appellant had been living

in “a little shed,” or trailer, on the warehouse property. After law enforcement

officers obtained a warrant to search the trailer in which appellant had been living,

they found, outside of the trailer, various items. And inside of the trailer, the officers

found “a .38 caliber cartridge casing.”

       Sergeant Howard further explained that he found the complainant, who also

resided in a trailer on the warehouse property, in “a fetal position” and “crouched

down” in the back of a building on the property. The complainant did not have a

firearm in his possession, and law enforcement officers did not find any weapons or

firearms in his trailer. However, the complainant did have utensils and knives in the

kitchen of his trailer.

       After obtaining an arrest warrant for appellant, Sergeant Howard and Officer

Lujan met him at a restaurant, where he told them that he was not armed and had

“got[ten] rid of the gun.” Later, at an HPD station, appellant gave a statement to




                                            5
Howard.2 Appellant stated that during the night of the shooting, “it was dark” and

the complainant had been playing music loudly. After appellant, who was standing

in the doorway of his trailer, asked the complainant to turn down the music, the

complainant threw down his bag, put his hand in his pocket, and came toward

appellant. Appellant then shot the complainant, but “in self-defense.” Appellant did

not tell Howard that the complainant had a firearm or a weapon that night.

      According to Sergeant Howard, the complainant was shot on his “front side.”

And both Trevino and Paz identified appellant as the person that they had seen at the

warehouse property with a firearm on the night of November 5, 2013. Howard noted

that a firearm is a deadly weapon and capable of causing serious bodily injury.

      Officer Lujan testified that on the night of November 5, 2013, he and Sergeant

Howard arrived at the homicide scene, where he interviewed several witnesses,

including Trevino and Paz. While at the scene, he and Howard determined that

appellant had recently “moved into . . . a small shack-type structure” or trailer on the

warehouse property. And Lujan obtained a search warrant for appellant’s trailer,

which Howard and HPD Officer J. Oliphant then searched.

      On November 6, 2013, Officer Lujan returned to the homicide scene, where

he found “some live rounds” outside of appellant’s trailer. Specifically, Lujan



2
      The trial court admitted into evidence the videotape recording of appellant’s
      statement to Sergeant Howard.

                                           6
found, in a “green and white shoebox,” “a box of Monarch brand . . . .38 caliber

ammunition” and, in a black suitcase, a “small plastic bag” with “six rounds” of

“.357 [caliber] . . . bullets.” While Lujan was at the scene, Paz alerted him to “a

bullet fragment” that he had found in the taillight of his car. Lujan then asked Paz

to move his car back to the location where it had been the previous night. As part of

his investigation, Lujan determined that a bullet “went through” the complainant and

struck Paz’s car.

      In regard to appellant’s statement to Sergeant Howard, Officer Lujan

explained that appellant had stated that he had been warned that the complainant was

“trouble,” appellant had asked the complainant to turn down his music, and when

the complainant came toward appellant, he shot him once. Lujan further noted that

appellant had told law enforcement officers that he had thrown away his firearm,

which the officers were not able to locate the firearm.

      Dr. Dwayne Wolf, deputy chief medical examiner at the Harris County

Institute of Forensic Sciences, testified that he performed an autopsy on the body of

the complainant, who died at the scene on November 5, 2013. Wolf explained that

the complainant had suffered a gunshot wound to the front left side of his chest. The

bullet had traveled from the left side of the complainant’s body to the right side, and

from the front of his body to the back, before exiting. Wolf opined that the

complainant had been shot by an individual standing more than two and a half feet


                                          7
away from him. And as a result of being shot, he had suffered serious bodily injury

that was clearly dangerous to human life.3 His cause of death was a “[g]unshot

wound to the chest.” And the manner of death was homicide.

                             Suppression of Evidence

      In his first issue, appellant argues that the trial court erred in denying his

motion to suppress evidence because the arrest and search warrants obtained by law

enforcement officers “contained conflicting information” and, thus, “it [was]

obvious that the information [contained in the warrants] was fabricated”; the arrest

and search warrants “lacked the requisite language needed for proper execution”;

and the arrest and search warrants “d[id] not give rise to probable cause.”

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim.

App. 2013). We review the trial court’s factual findings for an abuse of discretion

and the trial court’s application of the law to the facts de novo. Id. We generally

consider only the evidence adduced at the suppression hearing unless the parties

consensually re-litigate the issue at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.

Crim. App. 1996). At a suppression hearing, the trial court is the sole and exclusive

trier of fact and judge of the witnesses’ credibility, and it may choose to believe or



3
      During his testimony, Dr. Wolf described in detail the complainant’s internal
      injuries caused by the gunshot wound.

                                          8
disbelieve all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). When, as here, a trial court does not make explicit findings of fact, we

review the evidence in a light most favorable to the trial court’s ruling. Walter v.

State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We give almost total deference

to a trial court’s implied findings, especially those based on an evaluation of witness

credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010). We will sustain the trial court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case. Id. at 447–48.

      Prior to trial, appellant generally moved to suppress “[t]he fruits” of his “arrest

and detention” without specifying any particular evidence to be suppressed. At the

hearing on his motion to suppress evidence, appellant again generally moved for the

court “to suppress any evidence . . . seized in connection with either the arrest

[warrant] or the search warrant” without specifying any particular evidence that he

sought to be suppressed. On appeal, appellant again generally complains that the

trial court “should have suppressed all evidence obtained as a result” of the arrest

and search warrants. However, he also specifically asserts that the trial court

erroneously allowed “a gun that was the fruit of [law enforcement] officer[s’] illegal

search” to be admitted into evidence.




                                           9
      In deciding whether to address the merits of an appeal from the denial of a

motion to suppress, we must first identify the “fruits” that the trial court declined to

suppress. Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998) (internal

quotations omitted); see also Miller v. State, 312 S.W.3d 162, 166 (Tex. App.—Fort

Worth 2010, no pet.); Brennan v. State, 140 S.W.3d 779, 781 (Tex. App.—Houston

[14th Dist.] 2004, pet. ref’d). Second, an appellate court must determine whether

the “fruits” were “somehow” used by the State. Gonzales, 966 S.W.2d at 524

(internal quotations omitted). If it is not clear from the testimony and exhibits what

the “fruits” are, then an appellate court need not address the merits of the defendant’s

claim. Id. (internal quotations omitted); see also Miller, 312 S.W.3d at 166;

Brennan, 140 S.W.3d at 781. “Likewise, if the fruits have not somehow been used

by the State,” then the appellate court again need not address the merits of the

defendant’s claim. Gonzales, 966 S.W.2d at 524 (internal quotations omitted).

      To the extent that appellant complains generally that the trial court erred in

not suppressing “all evidence obtained as a result” of the arrest and search warrants,

we note that such a generalized argument fails to identify specific items of evidence

or categories of evidence that appellant sought to exclude by challenging his arrest

warrant and the warrant to search his trailer. Thus, he presents nothing for our

review. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Miller,

312 S.W.3d at 166 (defendant presented nothing for review where his motion sought


                                          10
to suppress “any evidence obtained pursuant to the warrants” and brief stated he

“sought to suppress all evidence seized” (internal quotations omitted); Brennan, 140

S.W.3d at 781 (global request to suppress “all evidence seized or obtained” from

alleged illegal searches and failure “to identify what, if any, evidence was ruled upon

by the denial” of suppression motion, presented nothing for appellate review

(internal quotations omitted)); see also Massey v. State, 933 S.W.2d 141, 148 (Tex.

Crim. App. 1996).

      In regard to appellant’s specific complaint on appeal that the trial court

erroneously allowed “a gun that was the fruit of [law enforcement] officer[s’] illegal

search” to be admitted into evidence, we note that appellant’s firearm was not

admitted into evidence at trial.4 And he has not identified any other evidence related

to his firearm that was discovered as a result of the challenged warrants.

Accordingly, we need not address the merits of appellant’s firs issue. Gonzales, 966

S.W.2d at 524 (court need not address merits of defendant’s complaint where “the

fruits have not somehow been used by the State” (internal quotations omitted)).

                          Exclusion of Expert Testimony

      In his second issue, appellant argues that the trial court erred in excluding,

during the guilt phase of trial, the testimony of his expert witness, Dr. Darrel Turner,


4
      Sergeant Howard and Officer Lujan both testified that law enforcement officers
      were not able to locate the firearm used in the offense and appellant told law
      enforcement officers that he had thrown his firearm away.

                                          11
regarding post-traumatic stress disorder (“PTSD”) because Turner’s testimony

“showed [a]ppellant’s mental status at the time of the offense” and “in all

prosecutions for murder, . . . [a] defendant shall be permitted to offer testimony as

to all relevant facts and circumstances surrounding the killing . . . together with all

relevant facts and circumstances going to show the condition of the mind of the

accused at the time of the offense.” See TEX. CODE CRIM. PROC. ANN. art. 38.36(a)

(Vernon 2018). Appellant further argues that he was harmed by the exclusion of

Turner’s testimony about PTSD because “[b]y [the trial court] preventing . . . Turner

from testifying,” he was “denied the right to put on his defense.” See U.S. CONST.

amends. VI, XIV; TEX. CONST. art. I, § 10.

      We review a trial court’s decision to exclude evidence of mental illness for an

abuse of discretion. Jackson v. State, 160 S.W.3d 568, 574–75 (Tex. Crim. App.

2005); see also Nickerson v. State, 478 S.W.3d 744, 757 (Tex. App.—Houston [1st

Dist.] 2015, no pet.). We will not reverse the trial court’s ruling unless it falls outside

the zone of reasonable disagreement. Resendiz v. State, 112 S.W.3d 541, 544 (Tex.

Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990). If the trial court’s ruling was correct on any theory of law applicable to the

case, then we will uphold the judgment. Ross, 32 S.W.3d at 855–56; Nickerson, 478

S.W.3d at 757.




                                            12
      Appellant argues that because Dr. Turner’s testimony about PTSD negates the

required mens rea for the offense of murder, it was admissible under Texas Code of

Criminal Procedure article 38.36(a) and Ruffin v. State, 270 S.W.3d 586 (Tex. Crim.

App. 2008).

      Generally, relevant evidence5 that negates the mens rea element of an offense,

including evidence of a defendant’s history of mental illness, may be presented to a

jury. Jackson, 160 S.W.3d at 574 (defendant convicted of offense of murder); see

also Lizcano v. State, No. AP-75,879, 2010 WL 1817772, at *19 (Tex. Crim. App.

May 5, 2010) (not designated for publication) (defendant convicted of offense of

capital murder); Quick v. State, No. 01-09-01127-CR, 2011 WL 286155, at *4 (Tex.

App.—Houston [1st Dist.] Jan. 27, 2011, no pet.) (mem. op., not designated for

publication) (defendant convicted of offense of murder). And in a prosecution for

murder, “the [S]tate or the defendant shall be permitted to offer testimony as to all

relevant facts and circumstances surrounding the killing . . . together with all

relevant facts and circumstances going to show the condition of the mind of the

accused at the time of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.36(a); see

Jackson, 160 S.W.3d at 574 (quoting article 38.36(a) in discussion of admissibility

of mental-illness evidence in prosecution for murder).




5
      See TEX. R. EVID. 401 (defining relevant evidence).

                                          13
      However, mental-illness evidence, including that which is admissible in a

murder prosecution under 38.36(a), must still meet the general requirements for

admission under the Texas Rules of Evidence,6 and it may be excluded if it does not

actually negate the required mens rea of the offense. Mays v. State, 318 S.W.3d 368,

381–82 (Tex. Crim. App. 2010) (trial court not required to admit expert testimony

concerning defendant’s mental illness during guilt stage of trial where “it d[oes] not

directly rebut his culpable mens rea”); Jackson, 160 S.W.3d at 574–75 (trial court

has discretion to exclude mental-illness evidence, including evidence admissible

under article 38.36(a), which does not negate element of mens rea); see also Lizcano,

2010 WL 1817772, at *19 (mental-illness evidence must meet general applicable

requirements for admission of evidence and “may be excluded if it does not truly

negate the mens rea” for offense); Ward v. State, No. AP-75750, 2010 WL 454980,

at *2 (Tex. Crim. App. Feb. 10, 2010) (not designated for publication); Nikmanesh

v. State, No. 05-16-00363-CR, 2017 WL 2774445, at *3–4 (Tex. App.—Dallas June

27, 2017, no pet.) (mem. op., not designated for publication); Brown v. State, No.

04-12-00813-CR, 2014 WL 3747234, at *4–5 (Tex. App.—San Antonio July 30,

2014, no pet.) (mem. op., not designated for publication); Quick, 2011 WL 286155,



6
      See, e.g., id. 403 (“The 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.”).

                                            14
at *4–5 (mental-illness evidence, including that admissible under article 38.36(a),

may be exclude where it does not truly negate requisite intent for offense of murder).

      The mens rea for the offense of murder is intentionally or knowingly causing

the death of an individual or intending to cause serious bodily injury and committing

an act clearly dangerous to human life that causes the death of an individual. See

TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2011); see also id. § 6.03(a), (b)

(Vernon 2011) (defining when person acts intentionally, or with intent, and

knowingly, or with knowledge); Braughton v. State, 522 S.W.3d 714, 727 (Tex.

App.—Houston [1st Dist.] 2017, pet. granted). Thus, the excluded testimony in this

case must negate the culpable mental state or show that appellant’s mental illness

prevented him from forming (a) the intent to cause the death of the complainant or

(b) the intent to cause the complainant serious bodily injury where his act caused the

death of the complainant. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2). In other

words, appellant’s mental-illness evidence must do more than provide an excuse or

justification for appellant forming the requisite intent; it must show that appellant

was prevented from forming the intent to commit the offense of murder. See Mays,

318 S.W.3d at 381 (mental-illness evidence did not rebut culpable mental element

of either capital murder or murder; mental-illness evidence only showed why

defendant intentionally and knowingly killed law enforcement officer); see also

Ward, 2010 WL 454980, at *4 (forensic psychologist’s testimony “presented only


                                         15
an excuse for the crime: that [defendant] intentionally killed [the complainant]

because he was so paranoid that he thought [the complainant] . . . was out to get

him”); Nikmanesh, 2017 WL 2774445, at *3–4 (expert testimony concerning

defendant’s “major depressive disorder or obsessive-compulsive personality

disorder could only offer an explanation or motive for [his] actions but could not

negate intent” for offense of murder).

      Here, Dr. Turner, outside the presence of the jury, testified that he is a clinical

psychologist who has experience with patients suffering from PTSD. In March

2016, he conducted a psychological evaluation of appellant. After his examination,

Turner concluded that appellant was competent and sane at the time of the offense.

However, Turner diagnosed appellant as having major depressive disorder, recurrent

and severe PTSD, and severe alcohol use disorder that was in “full remission.”

      Dr. Turner explained that appellant’s PTSD was “more on the severe end,”

although it was not “the most severe” that he had seen. It “stem[med] from his

service in the United States Army in Vietnam between 1967 and 1971.” Appellant

had received “some treatment for [his] PTSD” and “disability through the United

States government.” And Turner opined that on November 5, 2013, appellant had

PTSD.

      In regard to PTSD generally, Dr. Turner noted that a person with PTSD could

“re[-]experienc[e] . . . th[e] event [that caused the PTSD] through nightmares,


                                          16
through intrusive memories, [and] sometimes flashbacks.” A person with PTSD

could also demonstrate “avoidant behavior,” i.e., “going out of one’s way to avoid

situations, things, smells, sounds that remind [him] of th[e] event, a negative

emotional state,” “a flat affect,” irritability, and “other negative emotional criteria.”

A “hallmark of PTSD” is also hypervigilance, i.e., a person is “very aware of [his]

surroundings,” “perceive[s] danger, oftentimes in places where someone without

PTSD would not,” and is “more apt to . . . see[] [certain behavior] as a threat.” A

person with PTSD could also react to a perceived threat at a quicker rate.

      Related to appellant’s PTSD, Dr. Turner opined generally that when appellant

is placed “in a situation where he perceive[s] himself to be in danger,” his

“experience [of] fear and an increase in [his] nervous system activity” are

“exacerbated greatly.” And because appellant’s PTSD is “of a military nature and

[a] combat nature,” his “response cycle is to defend himself,” i.e., appellant is “more

prone to stand and defend himself as opposed to getting away from the area.”

However, Turner clarified that appellant’s PTSD did not “cause[] his actions” on

November 5, 2013, and appellant was not experiencing a “break with reality” or a

“delusional state” at the time of the offense. Further, appellant’s PTSD did not cause

“diminished capacity or . . . insanity.”

      Dr. Turner further noted that appellant, in regard to the night of November 5,

2013, had reported to him that he had felt threatened by the complainant. The


                                           17
complainant had approached him, appeared to be “reaching for a weapon,” and

“verbalized a threat to kill [him].” Appellant then shot the complainant, who left the

area. Appellant “contemplated following the [complainant] to see if he was okay or

what had happened with him[,] but . . . he didn’t know why the [complainant] was

accosting him[,] . . . if the [complainant’s] intention was to rob him[,] or if [the

complainant] had friends hanging around.” Accordingly, appellant decided not to

follow the complainant “for his own safety.” Appellant told Turner that “he didn’t

think [that] he had done anything wrong because he believed he had acted in

self[-]defense.” Turner noted that appellant’s story had remained consistent “over

time.”

         Notably, Dr. Turner’s testimony does not address appellant’s inability to form

the intent to kill the complainant or his capacity to act with knowledge of his conduct

and its consequences; rather, the testimony provides an explanation or excuse as to

why appellant shot the complainant. See Mays, 318 S.W.3d at 381–82 (“All of

[defendant]’s mental-illness evidence showed why he intentionally and knowingly

killed” law enforcement officer; defendant’s evidence did not “suggest that he did

not intend to shoot a person.”); Quick, 2011 WL 286155, at *4–5 (trial court did not

err in excluding mental-illness evidence in murder case where evidence “fail[ed] to

show that [defendant] did not act intentionally or knowingly”); see also Lizcano,

2010 WL 1817772, at *19–21 (trial court did not err in excluding testimony from


                                           18
defense experts about defendant’s “limitations in cognitive ability, intoxication at

the time of the offense, and general [mental] deficits” where evidence did not negate

mens rea element for capital murder and “no evidence show[ed] a connection

between [defendant’s] generally low level of mental functioning and his knowledge

during the commission of the [capital murder] offense”); Ward, 2010 WL 454980,

at *4 (trial court did not err in excluding forensic psychologist’s report and testimony

where evidence “presented only an excuse for the crime:               that [defendant]

intentionally killed [the complainant] because he was so paranoid that he thought

[the complainant] . . . was out to get him”); Nikmanesh, 2017 WL 2774445, at *3–4

(trial court did not err in excluding “psychiatric evidence” where expert testimony

concerning defendant’s “major depressive disorder or obsessive-compulsive

personality disorder could only offer an explanation or motive for [his] actions but

could not negate intent” for offense of murder); Palmer v. State, No.

05-14-00671-CR, 2015 WL 6859783, at *3–4 (Tex. App.—Dallas Nov. 9, 2015, pet.

ref’d) (mem. op., not designated for publication) (trial court did not err in excluding

expert’s testimony about defendant’s history of mental issues and current stressors

because evidence did not suggest defendant did not “form[] the intent to kill his

in-laws, or any other person”); Brown, 2014 WL 3747234, at *3–5 (trial court did

not err in excluding psychiatrist’s testimony regarding mental illness where

testimony did not negate mens rea for offense of murder; psychiatrist did not state


                                          19
defendant incapable of forming intent to kill or incapable of acting with knowledge

of her conduct and its consequences); Smith v. State, 314 S.W.3d 576, 589–91 (Tex.

App.—Texarkana 2010, no pet.) (trial court did not err in excluding evidence of

defendant’s mental-health history where evidence did not show, “due to her mental

condition, [defendant] was either unable to form a conscious objective or desire or

to engage in conduct causing [the complainant’s] death, or could not be aware [that]

her actions were reasonably certain to cause [the complainant’s] death”).

      In other words, the mental-illness evidence proffered by appellant in this case

does not negate the requisite mens rea for the offense of murder. Mays, 318 S.W.3d

at 380–82 (although mental-illness testimony “may be relevant for mitigation

purposes during the punishment phase [of trial], . . . expert testimony that does not

directly rebut the culpable mental state usually may be excluded at the guilt stage”);

Jackson, 160 S.W.3d at 574–75 (trial court has discretion to exclude mental-illness

evidence which does not negate element of mens rea); see also Nikmanesh, 2017

WL 2774445, at *3–4; Quick, 2011 WL 286155, at *4–5.

      Further, we note that the trial court could have also excluded Dr. Turner’s

testimony, which did not relate to appellant’s ability to form the requisite intent at

the time he shot the complainant, as overly confusing or misleading to the jury. See

TEX. R. EVID. 403 (relevant evidence may be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,


                                         20
misleading the jury, undue delay, or needlessly presenting cumulative evidence”);

Jackson, 160 S.W.3d at 574–75 (relevant mental-illness evidence admissible under

article 38.36(a) “may [still] be excluded under Rule 403 if the probative value of the

evidence ‘is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence’” (quoting TEX. R. EVID. 403)); see also Smith

v. State, No. 05-16-00102-CR, 2017 WL 462349, at *3 (Tex. App.—Dallas Feb. 1,

2017, pet. ref’d) (mem. op., not designated for publication) (trial court could have

excluded evidence of defendant’s mental illness where such evidence did “not

relate[] to his ability to form the requisite intent at the time of the murder” and “could

confuse or mislead the jury” (citing TEX. R. EVID. 403)); Gassaway v. State, No.

05-07-00922-CR, 2009 WL 1547756, at *3–5 (Tex. App.—Dallas June 4, 2009, pet.

ref’d) (not designated for publication) (mental-illness evidence which did not negate

mens rea for offense of murder could mislead jury on factual issues).

      Accordingly, we hold that the trial court did not err in excluding Dr. Turner’s

testimony during the guilt phase of trial. See Mays, 318 S.W.3d at 381–82; Jackson,

160 S.W.3d at 574.

      We overrule appellant’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Massengale, and Caughey.

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




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