                         NUMBER 13-11-00084-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JUAN HERRERA,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                Memorandum Opinion by Justice Rose Vela

      Appellant, Juan Herrera, and co-defendants, Anthony Hernandez, Alfredo Garza,

and Israel Robali, were tried together in a single trial. The jury convicted appellant of

murder, a first-degree felony, see TEX. PENAL CODE ANN. § 19.02(b), (c) (West 2011), and
aggravated assault with a deadly weapon, a second-degree felony.                  See id. §

22.02(a)(2), (b). The jury assessed concurrent sentences of twenty-five years' and five

years' imprisonment, respectively. In nine issues, appellant argues the trial court erred

by: (1) denying him general voir dire; (2) excluding impeachment evidence; (3) admitting

evidence of gang problems; (4) failing to submit a separate charge for each defendant; (5)

accepting a fatally defective jury verdict; (6) allowing the State to reopen the case; (7)

denying his request to ask the medical examiner a question; (8) allowing the alternate

jurors to sit in with the jury during deliberations; and (9) denying his motion for new trial.

We affirm.

                                      I. BACKGROUND

       In the evening of July 31, 2009, Brian Villarreal and his friends, Joel Pacheco,

Isabel Martinez, and John Sardie went to Burlington Coat Factory in Corpus Christi.

While inside the store, Pacheco had a minor confrontation with Anthony Hernandez.

Afterwards, Villarreal and his friends went outside and saw appellant drive up with two

passengers, Israel Robali and Alfredo Garza. Garza asked Villarreal and his friends if

they "had a problem."      Villarreal testified that when Martinez approached their car,

appellant drove away and took a pipe out of the trunk. Appellant, Robali, and Garza

walked toward Villarreal and his friends while Hernandez and a juvenile approached the

four from behind. When Robali hit Pacheco in the head, everybody started fighting.

During the fight, Villarreal heard appellant say, "Fuck these fools, blast them already, fuck

them." Robali pulled a gun from his pocket and shot Martinez. When Martinez tried to

grab the gun, Robali shot him again. Undaunted, Martinez "threw" Robali over his


                                              2
shoulder. When Robali hit the ground, the gun, which Robali held, went off, striking

Martinez. Villarreal kicked the gun out of Robali's hand and started choking him, but

stopped when he realized Martinez was dying.

       John Sardie testified he was fighting someone and "heard a shot and then I heard

a second one and it shot me in the arm." He could not identify the person who shot him;

however, when the prosecutor asked him if the person who shot him "was one of those

three guys in the car [driven by appellant]?," he said, "Yes." After getting shot, Sardie

saw appellant pick up a gun that was on the ground. When appellant pointed the gun at

Sardie, Sardie hid behind a truck. He testified that "I saw him [appellant] shooting the

gun after I ran behind the truck and I looked back."          He stated he "saw Herrera

[appellant]" grab Martinez "from the back of his head and like pop, like leaned him over

like that, on the side and just shot him three times."

       Shortly before the fight started, Daniel Pulido was in his truck, which was parked

near the Burlington Coat Factory. He saw four men come out of the store and stand

against a wall at the entrance to the store. About five minutes later, appellant drove up in

a blue car and stopped near the four men. After a passenger in the blue car made "signs

with his hands," the men approached the car, which drove forward. Appellant and a

passenger got out, and appellant retrieved what appeared to be a silver-colored gun from

the trunk. Appellant and his passengers started fighting with the four men, who were

standing against the wall. Pulido testified he saw "Juan Herrera and [Israel] Robali

fighting about two guys." After Pulido lost sight of the fight, he "heard about three or four

rounds go off."


                                             3
       Officer Jason Rhodes heard a dispatch about the fight at Burlington Coat Factory

and stopped the suspect vehicle, which had five occupants—Alfredo Garza, Anthony

Hernandez, Israel Robali, O.H.,1 and appellant, the driver of the vehicle. When Officer

Rhodes searched the vehicle, he found a small handgun underneath the backseat and a

pipe and a bat in the trunk.

       Ray Fernandez, M.D., the Nueces County Medical Examiner who performed

Martinez's autopsy, testified Martinez's cause of death was multiple gunshot wounds.

Specifically, Martinez had a fatal gunshot wound that went through his aorta. He also

had gunshot wounds at the left back and on the left upper arm.

       Forensic evidence showed that because the bullets removed from Martinez's body

had "insufficient detail," they could not be compared to test bullets fired from the .22

caliber pistol recovered from the car driven by appellant. However, the bullets were

consistent with being .22 caliber bullets. All of the casings recovered from the crime

scene came from the .22 caliber pistol.

                                               II. DISCUSSION

A. General Voir Dire

       In issue one, appellant contends the trial court erred by denying him a general voir

dire with questions that were critical to the issues.

       1. Background

       Appellant and his co-defendants were represented by a different attorney. On

May 10, 2010, the trial court conducted general voir dire examination of the

veniremembers. At the end of general voir dire, the trial court addressed the attorneys
       1
           Because this individual is a juvenile, we will not mention the first or last name.
                                                       4
for the State and the defendants as follows:



              Gentlemen, I have reviewed my general notes that a Judge relies
       upon in conducting voir dire. I have reviewed your notes. I may not have
       addressed every single word and matter in your notes, but I have
       addressed your notes. I now ask you if you have anything that you would
       like me to further address.

       When the prosecutor stated, "[W]e have a quick general voir dire about a few

things[,]" the trial court stated, "No, you're not going to do general voir dire. The next

phase is individual examination of the panel members. Today we'll conclude with the

general voir dire. Anything else that I should add to general voir dire?" When the trial

court asked appellant's defense counsel, "[A]nything additional?," he said, "Not at this

time, Judge." Afterwards, the trial court stated, "Ladies and gentlemen, that concludes

general voir dire." Appellant's defense counsel did not object and did not advise the

court he had any questions or information that the trial court needed to address during

general voir dire.

       When individual voir dire began on May 12, 2010, the trial court announced to the

attorneys for the State and the defendants the following:

              We had agreed that the Court would conduct voir dire. The Court
       asked and received notes from counsel on questions and topics to ask
       during that general voir dire. I made it clear to all counsel that general voir
       dire concluded at the end of that session on Monday May 10th, 2010, . . . .

       * * *

              I am now told that counsel want to continue with general voir dire.
       The door to general voir dire is closed. We're done. Today we pick up
       with individual voir dire.



                                             5
When appellant's defense counsel announced ready "subject to our request to the Court

to perform some additional voir dire in the general nature," the trial court replied, "General

voir dire has concluded . . . ."

       2. Standard of Review

       "The trial court has broad discretion over the process of selecting a jury." Barajas

v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (citing Allridge v. State, 762 S.W.2d

146, 167 (Tex. Crim. App. 1988)); Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App.

1991); see Barnard v. State, 730 S.W.2d 703, 715 (Tex. Crim. App. 1987) (stating "the . .

. [trial] court has discretion to control the manner of voir dire with the exception that in

capital murder cases both the State and the defense must be accorded the right to

examine each prospective juror individually"). "A trial court's discretion is abused only

when a proper question about a proper area of inquiry is prohibited." Barajas, 93 S.W.3d

at 38; Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995). "A question is

proper if it seeks to discover a juror's views on an issue applicable to the case." Barajas,

93 S.W.3d at 38 (citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985)).

"An otherwise proper question is impermissible, however, if it attempts to commit the juror

to a particular verdict based on particular facts." Id. (citing Standefer v. State, 59 S.W.3d

177, 181 (Tex. Crim. App. 2001)). "In addition, a voir dire question that is so vague or

broad in nature as to constitute a global fishing expedition is not proper and may be

prevented by the trial judge." Id. at 39 (citing Smith, 703 S.W.2d at 645). A trial court

may also limit voir dire when a question is repetitious. Dinkins, 894 S.W.2d at 345.




                                              6
       3. Analysis

       Upon agreement from the attorneys, and after taking into consideration their

"notes", the trial court conducted general voir dire. Toward the end of general voir dire

examination, when the trial court asked the attorneys for the State and the defendants if

they had "anything that [they] would like [the trial court] to further address[,]" appellant's

defense counsel stated, "Not at this time, Judge."          When the trial court told the

veniremembers, "Ladies and gentlemen, that concludes general voir dire[,]" appellant's

defense counsel did not object to the trial court's decision to end general voir dire, and he

did not advise the court he still had questions for the court to ask on general voir dire.

The trial court did not prohibit appellant's defense counsel from asking a proper question

about a proper area of inquiry before the conclusion of general voir dire. Therefore, we

hold the trial judge did not abuse her discretion when she decided to end general voir dire

examination. See Barajas, 93 S.W.3d at 38; Dinkins, 894 S.W.2d at 345. Issue one is

overruled.

B. Exclusion of Impeachment Evidence

       In issue two, appellant contends the trial court erred by excluding impeachment

evidence consisting of a photograph of John Sardie aiming a handgun. Specifically,

appellant argues that by "excluding proper impeachment evidence," the trial court denied

him (1) the right to present a defense i.e., that he was not the aggressor in the fight, and

(2) the right to confront adverse witnesses against him.




                                              7
        1. Standard of Review

        "An appellate court reviews a trial court's decision to admit or exclude evidence

under an abuse of discretion standard." Shuffield v. State, 189 S.W.3d 782, 793 (Tex.

Crim. App. 2006) (citing Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996)).

"The trial court abuses its discretion when the decision lies outside the zone of

reasonable disagreement." McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.

2008). "[I]f the trial court's evidentiary ruling is correct on any theory of law applicable to

that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his [or

her] right ruling." De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

        2. Background

        The evidence did not show that Sardie used any weapon during the fight with

appellant and his alleged accomplices. However, during Sardie's cross-examination,

appellant's defense counsel asked him, "Have you held a gun in your hand and pointed it

at somebody, Mr. Sardie?"             To this, he replied, "Never."            Afterwards, appellant's

defense counsel showed Sardie defendant's exhibit twenty one, which Sardie identified

as a photograph of himself, holding his sister's gun. He testified his sister took the photo

and that he "wasn't pointing at her." He testified he "was just pos[ing] for a photo[.]"

When appellant's defense counsel offered defendant's exhibit twenty one into evidence2

for impeachment purposes, the prosecutor objected on the basis of "relevancy," and the

trial court sustained the objection.




        2
         This photograph was admitted as part of a bill of exceptions. It is listed as defendant's exhibit
twenty-one and is included in volume fifteen of the reporter's record.
                                                     8
        3. Analysis

        We note that defense counsel's question—"Have you held a gun in your hand and

pointed it at somebody"—is potentially misleading because holding a gun in one's hand is

a prerequisite to pointing it at a person, but Sardie could have held the gun without

intending to point it at anyone, including the person who took the photo. With respect to

defendant's exhibit twenty-one, Sardie testified he was posing for a photo and was not

pointing the weapon at his sister, who took the photo. Therefore, Sardie's negative

response to the question—"Have you held a gun in your hand and pointed it at

somebody"—was not untruthful.

        Generally, the Sixth Amendment3 right to present evidence and to cross-examine

witnesses does not conflict with the corresponding rights under state evidentiary rules.

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). Thus, we can resolve

most questions regarding cross-examination by looking to the Texas Rules of Evidence.

Id. "In those rare situations in which the applicable rule of evidence conflicts with a

federal constitutional right, rule 101(c) [of the Texas Rules of Evidence] requires that the

Constitution of the United States controls over the evidentiary rule." Id. In Hammer,

however, the court of criminal appeals stated, "The Confrontation Clause mandate of

Davis v. Alaska[4] is not inconsistent with Texas evidentiary law. Thus, compliance with


        3
         The Confrontation Clause of the Sixth Amendment guarantees that, "[i]n all criminal prosecutions
the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend.
VI.
        4
          See Davis v. Alaska, 415 U.S. 308 (1974). In Hammer v. State, the court of criminal appeals
stated the Sixth Amendment right to confront witnesses includes the right to cross-examine them to attack
their general credibility or to show their possible bias, self-interest, or motive in testifying. 296 S.W.3d 555,
561 (Tex. Crim. App. 2009) (citing Davis, 415 U.S. at 316). "This right is not unqualified, however, the trial
judge has wide discretion in limiting the scope and extent of cross-examination." Id.
                                                       9
a rule of evidence will, in most instances, avoid a constitutional question concerning the

admissibility of such evidence." Id. at 566.

       Here, in an attempt to impeach Sardie's credibility and refute his claim that he

never held a gun and pointed it at somebody, appellant's defense counsel offered a photo

of Sardie holding and aiming his sister's handgun. Texas Rule of Evidence 607 states

that "the credibility of a witness may be attacked by any party . . . ." TEX. R. EVID. 607.

And, "[u]nder Rule 404(a)(3) of the Texas Rules of Evidence, a defendant may always

offer evidence of a pertinent character trait—such as truthfulness—of any witness. But,

under rule 608, the witness's general character for truthfulness may be shown only

through reputation or opinion testimony." Hammer, 296 S.W.3d at 563.            Our state

evidentiary rules permit a party to cross-examine a witness "on specific instances of

conduct when they are used to establish his specific bias, self-interest, or motive for

testifying." Id.

       Rule 608(b) provides in part: "Specific instances of the conduct of a witness, for

the purpose of attacking or supporting the witness' credibility, other than conviction of

crime as provided in rule 609, may not be inquired into on cross-examination of the

witness nor proved by extrinsic evidence." TEX. R. EVID. 608(b). Accordingly, whether

the photo in this case was admissible is at least subject to reasonable disagreement.

We hold the trial court did not abuse its discretion by excluding the photo from evidence.

Issue two is overruled.




                                            10
C. Admission of Evidence Concerning Gang Problems

       In issue three, appellant contends the trial court erred by admitting evidence of the

current gang problems in Corpus Christi, Texas because the evidence was irrelevant to

the issues in the case, and there is no evidence the incident was gang related.

       1. Background

       During the State's guilt-innocence case-in-chief, Detective Crispin Mendez, a

former gang investigator for the Corpus Christi Police Department's Gang Unit, testified

Corpus Christi has a criminal street gang known either as "Cuarenta" or "Cuare." When

the prosecutor asked him, "Do we have any problems with gangs here in Corpus

Christi?," he said, "Yes." At that point, appellant's defense counsel stated, "Object to the

relevance, Your Honor." The trial court overruled the objection, and appellant's defense

counsel did not ask for a running objection.       Next, the prosecutor asked Detective

Mendez, "What are some of the problems we have with these gangs in Corpus?"

Without objection, he stated, "Some of the problems we have are . . . robberies,

burglaries, thefts, drug dealing, aggravated assaults, homicides, home invasions."

       2. Preservation of Error

       "As a prerequisite to presenting a complaint on appeal, a party must have made a

timely and specific request, objection, or motion to the trial court." Grant v. State, 345

S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd) (citing TEX. R. APP. P. 33.1(a)(1)(A)).

"An objection is timely if it is made as soon as the ground for the objection becomes

apparent, i.e., as soon as the defense knows or should know that an error has occurred."

Id. (citing Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). "If a party fails to


                                            11
object until after an objectionable question has been asked and answered, and he can

show no legitimate reason to justify the delay, his objection is untimely and error is

waived." Id. (citing Dinkins, 894 S.W.2d at 355).

       In the instant case, appellant's defense counsel did not object to the question

posed to Detective Mendez until after the objectionable question had been asked and

answered. Appellant has shown no reason, legitimate or otherwise, to justify the delay.

Thus, the objection is untimely, and error is waived. See id.

       In addition, "[i]t is also necessary that the objecting party must continue to object

each time the objectionable question or evidence is offered, obtain a running objection, or

request a hearing outside the jury's presence in order to preserve a complaint for

appellate review." Id.; see Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.

2003); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999). Here, appellant's

defense counsel did not object to the second question posed to Detective Mendez, and

he did not obtain a running objection or request a hearing outside the jury's presence.

Thus, error, if any, is not preserved for appellate review. See Grant, 345 S.W.3d at 512;

Martinez, 98 S.W.3d at 193; Fuentes, 991 S.W.2d at 273. We hold the trial court did not

abuse its discretion by admitting the testimony. Issue three is overruled.

D. Failure to Separate the Charge For Each of the Four Co-Defendants

       In issue four, appellant contends the trial court erred by denying his request to

submit separate charges to the jury for himself and his three co-defendants. Herrera and

his three co-defendants were tried together in a single trial. At the conclusion of the

guilt-innocence phase, and over objection from appellant's defense counsel, the trial


                                            12
court submitted a single charge to the jury.

       1. Preservation of Error

       Texas Rule of Appellate Procedure 38.1(i) states the appellate "brief must contain

a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record." TEX. R. APP. P. 38.1(i). Appellant's brief contains no

citation to any authority that might support an argument that when multiple defendants

are tried together in a single trial, each defendant is entitled to a separate jury charge.

Therefore, we hold this issue is inadequately briefed and presents nothing for review as

this Court is under no obligation to make appellant's arguments for him. Lucio v. State,

351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see TEX. R. APP. P. 38.1(i); Busby v. State,

253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (affirming that court of criminal appeals has

no obligation "to construct and compose" a party's "issues, facts, and arguments with

appropriate citations to authorities and to the record") (internal quotes omitted));

Cardenas v. State, 30 S.W.3d 384, 393–94 (Tex. Crim. App. 2000) (deciding in a capital

case that the defendant's points complaining of the lack of a jury instruction on the

voluntariness of the defendant's statements to the police, were inadequately briefed "by

neglecting to present argument and authorities" in support of them). Even assuming

appellant had not waived this complaint, we conclude he has suffered no harm.

       2. Standard of Review for Charge Error

       "[A]n appellate court's first duty in evaluating a jury charge issue is to determine

whether error exists. Then, if error is found, the appellate court should analyze that error

for harm." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in


                                               13
this case, an error is preserved with a timely objection, then the jury-charge error requires

reversal if the appellant suffered "some harm" as a result of the error. Sanchez v. State,

No. PD-0961-07, 2012 WL 1694606, at *6 (Tex. Crim. App. May 16, 2012); see Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). "The harm caused by the error

must be considered 'in light of the entire jury charge, the state of the evidence, including

the contested issues and the weight of probative evidence, the argument of counsel and

any other relevant information revealed by the record of the trial as a whole.'" Sanchez,

2012 WL 1694606, at *6 (quoting Almanza, 686 S.W.2d at 171); see TEX. CODE CRIM.

PROC. ANN. art. 36.19 (West 2006).

       In the instant case, appellant argues that "[b]ecause there was some contradictory

evidence at trial that [he] shot the gun, it was harmful for [him] not to have his own charge

submitted to the jury, separate and apart from the other co-defendants." He claims that

"[a] separate charge for each defendant would have created more of a sense of

separation of the evidence from each of the different defendants in the case, so that each

defendant's conviction could stand on its own." In addition to the fact that appellant cites

no authority for this argument, "[a]n appellate court may assume that the jury will follow

the instruction as given, and will not reverse a conviction in the absence of evidence that

the jury was actually confused by the charge." Cagle v. State, 23 S.W.3d 590, 594 (Tex.

App.—Fort Worth 2000, pet. ref'd); see Williams v. State, 937 S.W.2d 479, 490 (Tex.

Crim. App. 1996). In the instant case, there is no evidence that the jury was confused by

the submission of a single charge for all four defendants. Thus, appellant's argument

falls into the category of theoretical harm. To obtain reversal for jury-charge error, an


                                             14
"[a]ppellant must have suffered actual harm, not merely theoretical harm." Sanchez,

2012 WL 1694606, at *6; see Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App.

1986). Issue four is overruled.

E. Acceptance of a Fatally Defective Jury Verdict

       In issue five, appellant contends the trial court erred by accepting a fatally

defective jury verdict, which was inconsistent with the application of the law of parties in

the charge.

       1. Applicable Law of Parties

       Section 7.01(a) of the Texas Penal Code provides:           "A person is criminally

responsible as a party to an offense if the offense is committed by his own conduct, by the

conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE

ANN. § 7.01(a) (West 2011). Section 7.02(a) provides, in relevant part, that a "person is

criminally responsible for an offense committed by the conduct of another if: . . . (2)

acting with intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense . . . ."

Id. § 7.02(a)(2).

       2. Analysis

       Appellant argues that under the law of parties, the jury found two of the

co-defendants, himself and Robali, guilty of murder, and it found the other two

co-defendants, Hernandez and Garza, guilty of the lesser-included offense of criminally

negligent homicide. See Jackson v. State, 248 S.W.3d 369, 371 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref'd) (stating criminally negligent homicide is a lesser-included


                                             15
offense of murder). Appellant argues the verdict is inconsistent with the theory under the

law of parties because by finding Hernandez and Garza guilty of the lesser-included

offense, by definition, they acted with a lower culpable mental state than required for

murder. If the jury found the defendants guilty under the theory of the law of parties, they

would have all been required to all have the same culpable mental state, to aid,

encourage, solicit or attempt to aid in the commission of the offense. Appellant argues

that "[b]y finding different culpable mental states of mind for each of the defendants, the

application of the law of parties is violated as to how they aided and encouraged in a

different crime."

       Appellant's brief contains no citation to any authority that might support this

argument. Therefore, we hold this issue is inadequately briefed and presents nothing for

review as this Court is under no obligation to make appellant's arguments for him. Lucio,

351 S.W.3d at 396; see TEX. R. APP. P. 38.1(i); Busby, 253 S.W.3d at 673; Cardenas, 30

S.W.3d at 393–94. Nevertheless, "[i]t is well-established that one accomplice may be

found guilty of a different, more serious offense than other accomplices." Ex parte

Thompson, 179 S.W.3d 549, 553 (Tex. Crim. App. 2005). "What matters under Section

7.02(a) is the criminal mens rea of each accomplice; each may be convicted only of those

crimes for which he had the requisite mental state." Id. at 554 (emphasis in original).

The Thompson court stated:

       To determine the kind of homicide of which the accomplice is guilty, it is
       necessary to look to his state of mind; it may have been different from the
       state of mind of the principal and they thus may be guilty of different
       offenses. Thus, because first degree murder requires a deliberate and
       premeditated killing, an accomplice is not guilty of this degree of murder
       unless he acted with premeditation and deliberation. And, because a

                                            16
      killing in a heat of passion is manslaughter and not murder, an accomplice
      who aids while in such a state is guilty only of manslaughter even though
      the killer is himself guilty of murder. Likewise, it is equally possible that the
      killer is guilty only of manslaughter because of his heat of passion but that
      the accomplice, aiding in a state of cool blood, is guilty of murder.

Id. at 554–55 (quoting 2 W AYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.2(c) at

346–47 (2d ed. 2003). Issue five is overruled.

F. Admission of Rebuttal Testimony

      In issue six, appellant contends the trial court erred by allowing the State to reopen

its case and admit improper rebuttal testimony.

      1. Background

      During the punishment phase, Officer Jeremy Loftin testified on direct-examination

that on February 14, 2009, he was dispatched to 803 Duncan Street in Corpus Christi in

reference to drug activity. While at the residence, police detained Israel Robali and two

other individuals who are not co-defendants in the instant case. According to Officer

Adrian Dominguez, a search of the residence turned up 131.63 grams of crack cocaine

and 17.20 grams of heroin.

      After appellant and his co-defendants finished presenting their evidence at the

punishment phase, the prosecutor told the trial court he wanted to call Officer Bill

Livingston as a rebuttal witness. However, when Officer Livingston's name was called,

he did not appear in the courtroom.         Thereafter, the prosecutor and the defense

attorneys rested and closed. The next day, but prior to closing arguments, the trial court

announced the State had asked to reopen the case on the issue of punishment. With

regard to the basis for reopening the case, the prosecutor stated that one of the fathers


                                             17
and some of the witnesses testified "they are good boys, they never get in the [sic] trouble

with the law.    There has been evidence already that he [Israel Robali] was at a

residence, one of the guys was at a residence where there was a large amount of

narcotics found when he was present there. . . ." He further stated that Officer Livingston

is "going to testify that the amount of narcotics here are not for personal use. These are

the amounts that are used by people that supply the street level dealers. . . ."

       In response, appellant's defense counsel objected that Officer Livingston's

testimony was not proper rebuttal testimony, but additional evidence on the issue of

co-defendant Robali's involvement. After the trial court overruled the objection, Officer

Livingston, a detective in the Vice and Narcotics Division of the Corpus Christi Police

Department, testified that during 2009, the price of cocaine ranged from $50 to $100 per

gram and that heroin sold for $70 to $100 per gram. When the prosecutor asked him,

"Would you consider somebody having 130 grams of cocaine for personal use?", he said,

"No. It would be indicative of someone who is trafficking or distributing narcotics." He

said that person "would be a mid-level dealer the ones who are supplying the street level

dealers."

       2. Applicable Law & Analysis

       "[W]e review a trial court's decision on a motion to reopen for an abuse of

discretion." Smith v. State, 290 S.W.3d 368, 373 (Tex. App.—Houston [14th Dist.] 2009,

pet. ref'd). Article 36.02 of the Texas Code of Criminal Procedure governs a party's right

to reopen a case. It states: "The court shall allow testimony to be introduced at any

time before the argument of a cause is concluded, if it appears that it is necessary to a


                                            18
due administration of justice." TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007). In

Peek v. State, the court of criminal appeals stated that "[a] trial judge is required to reopen

a case under Art. 36.02 only if the proffered evidence is 'necessary to a due

administration of justice'" and "conclude[d] that a 'due administration of justice' means a

judge should reopen a case if the evidence would materially change the case in the

proponent's favor." 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). In addition, the Peek

court stated, "'Due administration of justice' requires a showing that the evidence is more

than just relevant—it must actually make a difference in the case." Id. A party can

reopen his case to admit additional evidence even if the evidence is not rebuttal evidence.

Id. at 78.

       We are unable to conclude that Officer Livingston's testimony would not have

materially changed the case in the State's favor with regard to Robali's punishment. The

State sought to reopen the case in order to admit testimony, showing the amount of

narcotics was not for personal use; rather, it indicated the person possessing the

contraband was involved in trafficking or distributing narcotics. Thus, the testimony

would materially change the case in the proponent's favor with regard to Robali's

punishment because it showed he was not using the narcotics. Instead, he was involved

in the distribution of narcotics. We hold the trial court did not abuse its discretion by

granting the motion to reopen the case. Issue six is overruled.

G. Exclusion of Evidence

       In issue seven, appellant contends the trial court erred by preventing his defense

counsel from asking Dr. Ray Fernandez a relevant and legal question.


                                              19
      1. Background

      Dr. Fernandez, the medical examiner who performed Martinez's autopsy, testified

the toxicology report showed the amount of marihuana in the victim's system indicated he

had used the drug within at least two hours of his death. However, he stated the

marihuana in Martinez's system did not contribute to his death.

      On cross-examination, appellant's defense counsel asked Dr. Fernandez, "Of

those persons you perform postmortem examination who died of violent deaths, do a very

high percentage of them have narcotics in their system?" At that point, the prosecutor

said, "What's the relevancy with other people, Your Honor?"          Appellant's defense

counsel stated the relevancy of the question is that "Dr. Fernandez is their expert, Your

Honor. I think he—"At that point, the trial judge stated, "Relevancy of your question,

[defense counsel]?   And if that's your response, I'm ready to answer."      Appellant's

defense counsel replied, "That's my response, Your Honor." The trial court sustained

the objection, and appellant's defense counsel passed the witness.

      2. Applicable Law & Analysis

      To preserve a ruling excluding evidence for appellate review, the record must

contain an offer of proof. See TEX. R. EVID. 103; Fairow v. State, 943 S.W.2d 895, 905

(Tex. Crim. App. 1997); Hambrick v. State, 11 S.W.3d 241, 243 (Tex. App.—Texarkana

1999, no pet.).   Appellant's defense counsel failed to make either a formal bill of

exceptions or request permission to make an informal offer of proof (i.e., either in

question-and-answer form or in the form of a concise statement by counsel). Without an

offer of proof, we do not know what testimony the trial court excluded when it limited


                                           20
cross-examination.

      Nevertheless, based upon the record, defense counsel's question to Dr.

Fernandez would, in all probability, not have elicited any relevant testimony. Texas Rule

of Evidence 401 defines relevant evidence as "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." TEX. R. EVID. 401.

"Furthermore, except as otherwise provided by statute or rule, a jury is entitled to have

before it 'all possible relevant information about the individual defendant whose fate it

must determine.'" Shuffield, 189 S.W.3d at 793 (quoting Sells v. State, 121 S.W.3d 748,

766 (Tex. Crim. App. 2003)). "Even when the evidence is relevant, the trial court may be

within its discretion to exclude it pursuant [to] Texas Rule of Evidence 403." Id. "Under

Rule 403, relevant evidence may be excluded if 'its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, or negligent presentation of cumulative

evidence.'" Id.

      The percentage of people who die from violent deaths while having narcotics in

their bodies does not, by itself, make appellant more or less culpable for Martinez's

murder. Nor does it, by itself, make a jury's finding of mitigation any more or less

probable than it would be without the evidence. Looking at the entirety of the record, we

are unable to say the trial court abused its discretion by excluding the complained-of

testimony. Issue seven is overruled.




                                           21
H. Alternate Jurors

       In issue eight, appellant contends the trial court erred by allowing the alternate

jurors to sit in with the jury during deliberations on guilt-innocence, in violation of article

36.22 of the Texas Code of Criminal Procedure. This article provides: "No person shall

be permitted to be with a jury while it is deliberating. No person shall be permitted to

converse with a juror about the case on trial except in the presence and by the permission

of the court." TEX. CODE CRIM. PROC. ANN. art. 36.22 (West 2006).

       1. Background

       After the jury returned its guilty verdicts, but before the jury heard any punishment

evidence, Robali's defense counsel moved for a mistrial, stating:

               Judge, procedurally on the issues of jury conduct, I am moving for a
       mistrial based on the Court has two alternates that have been part of the
       proceedings. Prior to receiving the verdict, the two alternates were
       allowed to go into the jury pool room which is designated for the twelve
       jurors, and under 36.22, its contact with jurors, there are still—

       * * *

                Our problem here is, is that these jurors, the two alternates, have not
       had a role in the deliberation issues, but they are still been standing by in
       case something happened to the twelve jurors. Where violations occurred
       is where the juror before receiving the verdict had all come together again
       for thirty minutes or so, stayed in the jury room while waiting security to be
       secured for the receiving of the verdict.

               I think that's a contamination because we're still in the process of
       continuing this jury for punishment issues, and as a result of that, we don't
       know what conversed in there. We're going to have to develop that later,
       but I think that's sufficient ground of violation of 36.22.

The trial court overruled the request for a mistrial. Appellant concedes that none of the

jurors, including the alternate jurors, were questioned about any specific misconduct.


                                              22
       2. Preservation of Error

       In order to preserve error for appellate review, "a party's point of error on appeal

must comport with the objection made at trial.'" Grant, 345 S.W.3d at 512 (quoting

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)); see also Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (point of error raised on appeal must

correspond to objection made at trial). In the instant case, defense counsel moved for a

mistrial regarding "the issues of jury conduct." However, appellant's point of error on

appeal does not refer to the request for a mistrial. Therefore, the issue is not preserved

for appellate review. Even assuming error had been preserved, we conclude the trial

court did not err by denying the mistrial.

       3. Mistrial

       "A violation of article 36.22, once proven by the defendant, triggers a rebuttable

presumption of injury to the accused, and a mistrial may be warranted." Ocon v. State,

284 S.W.3d 880, 884 (Tex. Crim. App. 2009). "A mistrial is an appropriate remedy in

'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Id.

"A mistrial halts trial proceedings when error is so prejudicial that expenditure of further

time and expense would be wasteful and futile." Id. "Whether an error requires a

mistrial must be determined by the particular facts of the case."

       "A trial court's denial of a mistrial is reviewed for an abuse of discretion." Id. "An

appellate court views the evidence in the light most favorable to the trial court's ruling,

considering only those arguments before the court at the time of the ruling." Id. "The

ruling must be upheld if it was within the zone of reasonable disagreement." Id.


                                             23
       4. Analysis

       The record contains no evidence showing that (1) an alternate juror was with the

jury while it was deliberating, or (2) that an alternate juror conversed with any of the twelve

jurors about the case on trial. See TEX. CODE CRIM. PROC. ANN. art. 36.22. Thus,

appellant has not proven a violation of article 36.22. Therefore, we hold the trial court did

not abuse its discretion by denying a mistrial. Issue eight is overruled.

I. Motion for New Trial

       In issue nine, appellant contends the trial court erred by denying his motion for new

trial because his defense counsel was ineffective for failing to call two material witnesses,

Michael Estrada and Brianna Garza.

       1. The New-Trial Hearing

       Michael Estrada testified that on the date in question, he and his front-seat

passenger, Brianna Garza, turned into the Burlington Coat Factory parking lot and saw

two men jump over the hood of their car. Both men started fighting with some other men.

During the fight, the man who was fighting with Israel Robali pulled "something" out of his

pocket and went towards Robali, who was trying to get into a car that had pulled up. The

man "attacked" Robali, who pushed him away. When Estrada "heard something pop,"

he looked back towards the fight and "saw that guy going towards" Robali. When the

prosecutor asked Estrada, "Did Israel shoot before or after that car got there?", he said,

"After." However, when Estrada was asked if he had seen "the shooting itself?", he said,

"Not really."




                                              24
       Brianna Garza saw the men fighting and testified Robali "was getting beaten up."

Then, Robali pulled a gun from his pants. She testified that when "[t]he taller guy swung

at Robali, . . . he [Robali] shot him." When the taller man "swung again, . . . that's when

the gun went off more than once." She did not see Robali trying to get into a vehicle.

       Appellant's defense counsel testified that because Estrada and Garza tended to

contradict each other, he decided not to call them as witnesses. He stated that Garza

"had a lot of different things from what she claimed that she was able to see that just didn't

fit into what we understood about the case. We just didn't consider her a very good

witness from the standpoint of either credibility of what she was able to see." He also

testified, "We had . . . additional witnesses . . . including . . . Michael Estrada, . . . . But

after interviewing each of those groups of people they ended up having enough negative

stuff in their testimony where the balance after we considered both sides of it just did not

weigh in favor of calling them as witnesses."           Later during the new-trial hearing,

appellant's defense counsel testified that Garza's "testimony doesn't help at all . . .

because she certainly could have been testifying about things that she saw after Israel

[Robali] picked up the gun off the ground. So we didn't consider her testimony valuable

in assistance to [appellant] at all."

       2. Applicable Law

       a. New Trial

       "[T]he trial court does not have discretion to grant a new trial unless the defendant

shows that he is entitled to one under the law." State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007). "To grant a new trial for a non-legal or legally invalid reason is


                                              25
an abuse of discretion." Id. As the court of criminal appeals has explained, the test for

abuse of discretion

      "is not whether, in the opinion of the reviewing court, the facts present an
      appropriate case for the trial court's action; rather, it is a question of whether
      the trial court acted without reference to any guiding rules or principles, and
      the mere fact that a trial court may decide a matter within its discretionary
      authority differently than an appellate court does not demonstrate such an
      abuse."

Id. (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005) (quoting Brown

v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994)).

      "While a trial court has wide discretion in ruling on a motion for new trial which sets

out a valid legal claim, it should exercise that discretion by balancing a defendant's

'interest of justice' claim against both the interests of the public in finality and the

harmless-error standards set out in rule 44.2." Id. "Trial courts should not grant a new

trial if the defendant's substantial rights were not affected." Id. "Otherwise, the phrase

'interest of justice' would have no substantive legal content, but constitute a mere

platitude covering a multitude of unreviewable rulings." Id.

      b. Ineffective Assistance of Counsel

      "The Sixth Amendment to the United States Constitution, and section ten of article

1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a

criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires

more than the presence of a lawyer; it necessarily requires the right to effective

assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.

Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to

                                             26
errorless counsel, 5 but rather to objectively reasonable representation."           Id. (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

       "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Id.

"Appellant must show that (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense." Id. (citing

Strickland, 466 U.S. at 689). "Unless appellant can prove both prongs, an appellate

court must not find counsel's representation to be ineffective." Id. (citing Strickland, 466

U.S. at 687).        "In order to satisfy the first prong, appellant must prove, by a

preponderance of the evidence, that trial counsel's performance fell below an objective

standard of reasonableness under the prevailing professional norms." Id. "To prove

prejudice, appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding would

have been different." Id. (citing Strickland, 466 U.S. at 687).

       "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689)).

"In order for an appellate court to find that counsel was ineffective, counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable competence.'"
       5
           Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
                                                  27
Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).

"When such direct evidence is not available, we will assume that counsel had a strategy if

any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of hindsight." Id.

(citing Robertson, 187 S.W.3d at 483).

       The court of criminal appeals "has repeatedly stated that claims of ineffective

assistance of counsel are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus." Id.

(citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131

(Tex. Crim. App. 2004). "On direct appeal, the record is usually inadequately developed

and 'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly

evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833).

       3. Analysis

       Because "[t]he two prongs of Strickland need not be analyzed in a particular

order,[6] we decide whether appellant satisfied the prejudice prong,[7] which requires us to

"ask whether there is a reasonable probability that the jury would have had a reasonable

doubt as to [a]ppellant's guilt had . . . [Michael Estrada and Brianna Garza] appeared at

trial. . . ." Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010). In Perez, the

       6
           Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
       7
           See Strickland v. Washington, 466 U.S. 668, 697 (1984).
                                                   28
court of criminal appeals followed the guidance of King v. State, 649 S.W.2d 42 (Tex.

Crim. App. 1983), in which the defendant "asserted ineffective assistance of counsel in

part because no witnesses testified on his behalf." Id. (citing King, 649 S.W.2d at 44).

The Perez court, quoting from King, stated that "the failure to call witnesses at the

guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would benefit from their testimony." Id. (quoting

King, 649 S.W.2d at 44).

       Even though Estrada and Garza were available to testify at the trial of this case,

appellant would not have benefited from their testimony. Estrada, when asked if he saw

the shooting, stated, "Not really." Garza testified she saw Robali shoot the man who

swung at him. Estrada testified he saw Robali trying to get into a vehicle while Garza

testified she did not see him trying to get into a vehicle. Neither Estrada nor Garza could

identify appellant as a participant in the fight. The State's evidence, however, showed

appellant and Robali participated in the fight. Villarreal testified Robali shot Martinez,

and Sardie testified appellant shot Martinez. Thus, the testimony of neither Estrada nor

Garza would have exonerated appellant because their testimony was either irrelevant to

appellant's culpability or repetitive of admitted testimony.

       Accordingly, we do not see a reasonable probability that the testimony of either

Estrada or Garza would have changed the result of appellant's trial.            Ineffective

assistance of counsel claims must be firmly founded in the record and not based on

retrospective speculation. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002). We conclude appellant has not shown by a preponderance of the evidence that


                                             29
counsel's alleged "deficiency so compromised the proper functioning of the adversarial

process that the trial court cannot be said to have produced a reliable result." See Ex

parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S.

at 686). Therefore, we hold the trial court did not abuse its discretion by denying the

motion for new trial. Issue nine is overruled.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

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

Delivered and filed the
12th day of July, 2012.




                                             30
