Rodney Wayne Allen v. State

Affirmed and Majority and Concurring Opinions filed August 4, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-01030-CR

RODNEY WAYNE ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1340129

OPINION

The State indicted appellant Rodney Wayne Allen for the murder of Jonathan

Diles,1 and appellant pled not guilty. Appellant argued at trial that he acted in self-

defense. A jury convicted appellant of murder, and the trial court assessed his

punishment at 45 years’ imprisonment. Appellant challenges his conviction on

grounds that the trial court erred by (1) excluding testimony regarding Diles’s

character for violence and aggression; and (2) denying appellant’s request that the

1

See Tex. Penal Code Ann. § 19.02(b) (Vernon 2011).

State provide him with copies of offense reports in cases in which Diles was charged

with crimes of violence. We affirm.

BACKGROUND

An altercation occurred between appellant and Diles, which ended in Diles’s

death. According to several witnesses, appellant punched a hole in Diles’s apartment

wall; Diles grabbed appellant by the neck; and Diles forced appellant to the outside

patio. Appellant fatally shot Diles on the patio.

Appellant argues that the trial court’s allegedly erroneous rulings prevented

him from proving that he acted in self-defense when he shot Diles. Appellant does

not pinpoint trial court rulings he considers to be in error, but agues his issues

generally. The State contends that appellant has not preserved complaints regarding

several trial court rulings. We summarize key witness testimony, attorney arguments,

and party objections to place appellant’s general contentions into context.

I. The Motion in Limine

The State filed a motion in limine before trial. The trial court granted the

State’s motion and instructed the parties and counsel not to allude to, refer to, or in

any way bring before the jury any reference regarding Diles’s prior criminal history,

bad acts, or character without first approaching the bench.

II. The First Day of Trial

Appellant’s trial counsel approached the bench before giving her opening

statement. Counsel informed the trial court that appellant asserted self-defense as a

justification for killing Diles. Counsel asked for permission to assert that the

evidence would show appellant knew of Diles’s violent nature, and that Diles had a

violent past. Counsel argued that this evidence would explain appellant’s

apprehension of Diles and tend to show that Diles, rather than appellant, was the first

2

aggressor in the altercation that led to Diles’s death. Counsel specifically requested

permission to assert that appellant knew (1) of Diles’s prior convictions for assault

and theft;2 (2) that Diles was a member of the Crips, a violent street gang; and (3) that

Diles was violent toward Sharon Castillo, Diles’s girlfriend and an eyewitness to his

death.3 The trial court denied counsel’s request with respect to appellant’s knowledge

of Diles’s prior convictions and gang membership, but granted counsel’s request with

respect to appellant’s knowledge of Diles’s violence toward Castillo.

The State gave an opening statement, and appellant’s counsel followed.

Appellant’s counsel referred to Diles by his nickname, “Mellow,” in her opening

statement. The State then called the officer dispatched to the scene of Diles’s death.

The officer testified briefly, and court adjourned for the day.4

III. The Second Day of Trial

Appellant’s counsel approached the bench before the start of the second day of

trial. Counsel requested copies of the offense reports “for [Diles’s] prior acts of

violence.” She argued: “Specific acts of violence become relevant when the defense

raises the issue of self-defense or first aggressor.” The trial court refused counsel’s

request.

The State then called Castillo. Castillo testified that she had lived with Diles

for five-and-a-half years and considered Diles to be her husband. The State

2

Appellant refers to Diles’s prior convictions for assault and robbery throughout his

appellate brief; however, appellant’s trial counsel asserted at the bench conference that Diles was

charged twice with robbery, but that the charges were reduced to theft. See Tex. Penal Code Ann.

§§ 29.02 (Vernon 2011), 31.03 (Vernon Supp. 2014).

3

The parties also refer to Castillo as Diles’s wife or common-law wife. We refer to Castillo

as Diles’s girlfriend because Castillo was legally married to another man at the time of trial.

4

We do not summarize the officer’s testimony and several other witnesses’ testimony

because appellant does not challenge the sufficiency of the evidence supporting his conviction, and

because the testimony is not dispositive of appellant’s issues.

3

questioned Castillo as follows:

[THE STATE:] Now, while you were living with [Diles], what was

y’all’s relationship like?

[CASTILLO:] We had our good days and our bad days.

[THE STATE:] Tell me what you mean by that?

[CASTILLO:] Because he had a drug problem.

[THE STATE:] [Diles] had a drug problem?

[CASTILLO:] Yes, ma’am, he did. Some days he would be okay, and

then some days he wasn’t.

[THE STATE:] Do you know what kind of drugs he was using?

[CASTILLO:] He was on crack cocaine.

[THE STATE:] Did you see him use crack cocaine around you?

[CASTILLO:] No, he would leave and stay gone for a couple of days

and come home; and I’ll [sic] know that’s what he was out there doing.

But he never did it around me or in my house.

The State later questioned Castillo as follows:

[THE STATE:] Did [Diles] have a nickname at all?

[CASTILLO:] Mellow.

[THE STATE:] Mellow. Do you know how he got that nickname?

[APPELLANT’S COUNSEL:] Objection, calls for speculation.

THE COURT: You may answer if you know.

[CASTILLO:] Me, ma’am?

THE COURT: Yes.

[CASTILLO:] Because he was just real laid back.

4

The State questioned Castillo regarding her relationship with appellant. Castillo

testified that she met appellant “a while back” through her son. She testified that

appellant was 23 years old at the time of trial, and that he is 18 years her junior.

Castillo stated that she considered appellant to be a son, and that appellant called her

“Mama” and called Diles “Pops.”

Castillo testified that, on March 11, 2012,5 she entertained Julia Jones at her

apartment. Diles and two others, Roderick Brown and Shay McBride, arrived at the

apartment by that evening. According to Castillo, appellant called her for a ride to

the apartment. Castillo borrowed a car, picked up appellant, and returned with

appellant to her apartment. Castillo testified that appellant brought a gun.

According to Castillo, Jones went to the bathroom to do her hair at some point

in the evening. Appellant joined Jones in the bathroom, and the two began to argue.

Jones and appellant left the bathroom once and returned. They then left the bathroom

a second time. Both were upset.

Jones and appellant entered the living room where Castillo, Diles, Brown, and

McBride were sitting. According to Castillo, appellant stated that he wanted to leave.

He then punched a hole in the wall. Diles rose from the couch and told appellant to

calm down. Appellant and Jones continued to argue. Diles then grabbed appellant

“in a full nelson,”6 and told appellant that he would let him go when he calmed down.

The apartment door leading to the patio was open. Diles walked appellant outside to

the patio while holding him.

5

The State asked Castillo to “talk about March 11th of 2012.” Castillo testified to events

that occurred on March 10, 2012, as well as events that occurred during the early morning of March

11, 2012. Diles was shot at approximately 5:00 a.m. on March 11, 2012.

6

Castillo demonstrated the grasp to the jury. The Webster’s International Dictionary

defines “full nelson” as “a hold gained by a wrestler who from a position behind his opponent

places both arms under his opponent’s arms and clasps his hands or wrists behind the opponent’s

neck.” See Webster’s Third New International Dictionary 919 (Philip Babcock Grove ed., 1993).

5

According to Castillo, Jones then grabbed her keys, exited the apartment, and

walked toward the parking lot. Diles released appellant after Jones had walked past.

Appellant turned once he was released, “like he was fixin’ to run towards [Jones.]

[T]hat’s when [Diles] grabbed [appellant].” Castillo testified that Diles grabbed the

back of appellant’s shirt. She stated that, after Diles grabbed appellant’s shirt,

appellant pulled out a gun and shot Diles in the head. Castillo stood next to Diles.

She stated that appellant looked at her immediately after shooting Diles and ran away.

Castillo testified that Diles did not have a gun and never attempted to hurt appellant.

Appellant’s counsel cross-examined Castillo about her relationship with Diles

as follows:

[APPELLANT’S COUNSEL:] Now, let’s talk a little bit about some of

the statements that you’ve made. Today you told the jury that you and

[Diles] knew each other for five and a half years?

[CASTILLO:] Correct.

[APPELLANT’S COUNSEL:] And that you guys had your problems,

your good days and your bad days?

[CASTILLO:] Correct.

[APPELLANT’S COUNSEL:] What do you mean by that?

[CASTILLO:] Like all couples have good days and bad days. You fight

sometimes, you argue. You argue and fuss and fight, and sometimes it’s

good and sometimes it’s not good. With us it was bad because he was

battling an addiction.

[APPELLANT’S COUNSEL:] And when you fought, he would get

physical with you, wouldn’t he?

[CASTILLO:] No, ma’am.

[APPELLANT’S COUNSEL:] It is your testimony here today that

[Diles], you’re telling this jury, that [Diles] was never physical with you;

is that your testimony to this jury today?

6

[CASTILLO:] If you want to call pushing, yeah, we pushed each other

around. As far as black eyes, punching, kicking, no.

[APPELLANT’S COUNSEL:] So, your testimony now is that you

would get physical in that you would — he would push you and you

would push him back?

[CASTILLO:] Yes.

[APPELLANT’S COUNSEL:] Is it your testimony that it never got

worse than that?

[CASTILLO:] Yes.

The court called the attorneys to the bench immediately after this exchange. There,

the following conference ensued:

THE COURT: All right. And perhaps there was — maybe you

misconstrued my ruling. Just so that we’re clear, we talked about

opening statements, and we talked about the fact that there may come a

time when reputation testimony could become admissible in regards to

[appellant’s] knowledge of [Diles’s] reputation.

[APPELLANT’S COUNSEL]: Right.

THE COURT: At this time, I have not ruled on [whether] extraneous

bad acts on the part of [Diles] are admissible for character conformity or

anything else. They’re clearly not relevant to prove character

conformity, and I haven’t ruled that they’re admissible for any other

purpose. I have granted the [m]otion in [l]imine. While I gave you

some latitude in opening statement, now I have not determined this

evidence to be admissible; and it’s not admissible at this time.

[APPELLANT’S COUNSEL]: Okay. I was responding to — on direct

examination, she said that they had their good days and bad days.

THE COURT: And she answered that question.

[APPELLANT’S COUNSEL]: And the reason for my questioning at

this point was because that answer mislead the jury to make it sound like

—

7

THE COURT: I’m not going to allow you to, I guess, there was a

[m]otion in [l]imine regarding that. It is still in effect.

Appellant’s counsel continued her cross-examination. Counsel asked Castillo about

purported inconsistencies in her statement to police given on March 11, 2012.

Counsel referred to Diles as “Mellow” during this exchange. Counsel asked Castillo:

“Isn’t it true that you stated [to police] that at that time that Mellow grabbed

[appellant]?” Castillo responded: “He grabbed him before [Jones] walked outside.”

IV. The Third Day of Trial

Castillo’s cross-examination carried over into the third day of trial. The

prosecutor and appellant’s counsel approached the bench before trial resumed.

Appellant’s counsel asked the court to admit evidence of Diles’s character to rebut

Castillo’s testimony that Diles was nicknamed “Mellow” and was a “laid-back

individual.” Appellant’s counsel argued that Castillo’s testimony “should have

opened the door for rebuttal character evidence.” Appellant’s counsel did not specify

the rebuttal evidence she wished to introduce. The trial court denied counsel’s

request. Appellant then finished cross-examining Castillo.

The State next called Alfonso Pineda, who lived above Diles’s and Castillo’s

apartment. Pineda testified through an interpreter that he woke up at about 5:00 a.m.

on March 11, 2012, because he heard screaming outside his apartment. Pineda

opened his window and saw two men and a woman arguing. Pineda testified:

They were arguing and the guy, the aggressor, was next to the wall.

They were arguing; I don’t know why, and the man who died withdrew

from them. So, the other guy moved from where the lady was, and he

encountered the other one. And so he also walked around and left. And

then the other man also got out and he yelled at him, the one who died,

he said, ‘What the hell, n——,’ that’s all I heard. And then he came

back and he pulled out the pistol and shot at him.

Pineda testified on cross-examination that, at one point, he lost sight of the shooter.

8

Pineda then saw the shooter come back, stand in front of Diles, pull out a gun, and

fire. Appellant’s counsel asked Pineda: “[P]rior to this shooting, it is your testimony

that neither one of them touched each other?” Pineda answered: “There were not any

blows. The lady was the one who was pushing the guy, but I don’t know why.”

The State next called Brown. Brown testified that he was at Castillo’s and

Diles’s apartment on March 11, 2012. Brown identified Diles in a photograph stating

“[t]hat’s Mellow, I only know him by nickname.” Brown referred to Diles as

“Mellow” throughout the examination.

Brown testified that appellant argued with someone on the phone while

appellant was at the apartment. According to Brown, appellant became distraught

and punched the apartment wall. Diles then grabbed appellant from behind and

forced him outside. Brown stated that Diles “had [appellant] around his neck, like

grabbed him from behind.” According to Brown, appellant “was asking [Diles] why

are you handling me this rough?” Brown demonstrated the hold Diles used on

appellant. Brown called the hold “a full nelson.” Brown testified that he stayed

inside the apartment after Diles removed appellant. Brown heard two gunshots. He

then exited the apartment and saw Diles lying dead outside.

The State called Dr. Morna Gounsolin, who performed the autopsy on Diles’s

body on March 12, 2012. Dr. Gounsolin testified that Diles died of a gunshot wound

to the head. The trial court admitted Dr. Gounsolin’s autopsy report into evidence.

The report states that the word “CRIMINAL” is tattooed on Diles’s left forearm, and

the words “MIND OF A GANGSTA” are tattooed on his right hand. The autopsy

report lists trace amounts of cocaine, cocaine metabolites, and ethanol found in

Diles’s blood.

Appellant’s counsel approached the bench before Dr. Gounsolin’s cross-

examination. Counsel asked the court for permission to question Dr. Gounsolin about

9

Diles’s tattoos. The trial court denied counsel’s request, stating: “[The motion in

limine] remains in effect.”

The State rested. The State and appellant’s counsel approached the bench.

Appellant’s counsel asked the court for permission to call a witness the next day who

would testify that Castillo told the witness a different version of events. The trial

court stated that it would allow the witness to testify regarding Castillo’s inconsistent

statements. Appellant’s counsel told the court that the witness also had personal

knowledge that Diles abused Castillo and that Diles smoked crack in the apartment he

shared with Castillo. Appellant’s counsel asked the court for permission to question

the witness about Diles’s abuse and drug use at the apartment. The trial court denied

counsel’s request, stating that the extraneous acts were irrelevant and, even if

relevant, they were unfairly prejudicial. The court adjourned for the day.

V. The Fourth Day of Trial

Appellant testified on the fourth day of trial. Appellant’s counsel questioned

appellant as follows:

[APPELLANT’S COUNSEL:] Why did you fire those shots on March

11th, 2012?

[APPELLANT:] I was scared for my life.

[APPELLANT’S COUNSEL:] Why were you scared for your live

[sic]?

[APPELLANT:] Because [Diles] was choking me. He was choking me,

and he wouldn’t let me go, and he reached for my gun.

On cross-examination, appellant testified that he brought a gun to Diles’s and

Castillo’s apartment. He testified that he punched the apartment wall twice. He

stated that Diles then grabbed him around the neck with his arm. Appellant asked

Diles to let him go. According to appellant, he was unable to speak. He testified that

10

he could not breathe and that he tried to get loose from Diles. Appellant and Diles

then “started to tussle.” At some point, the struggle moved outside. Neither man was

on his feet. Appellant testified: “When I kind of got loose from [Diles], he reached

for my gun.” Appellant could not remember how he got loose from Diles. Appellant

stated: “I shot the gun when [Diles] let — when I was trying to get away from him, I

shot the gun when I was able to grab it.” Diles then released appellant, and appellant

fled the scene.

Appellant testified on redirect that, after he punched the wall, Diles came from

the back of the apartment to the living room. Appellant testified: “[Diles] grabbed

me around my neck. He didn’t even say anything to me. He just immediately

grabbed me.” Appellant demonstrated the grasp to the jury. Appellant’s counsel

asked appellant: “What is the reason that you shot Jonathan [Diles] that night?”

Appellant responded: “He reached to grab for my gun.”

Appellant’s counsel then approached the bench, where the following

conference ensued:

[APPELLANT’S COUNSEL:] We have now clearly raised the issue of

self-defense. I would ask that now I be able to go into the relationship

between the parties and what they knew in regards to —

THE COURT: Between the Defendant and the victim?

[APPELLANT’S COUNSEL:] Yes.

THE COURT: Any extraneouses?

[APPELLANT’S COUNSEL:] No. So, what about the personal

knowledge of the victim’s opinion and character?

THE COURT: At this point, based on the evidence that has been raised,

if you want to talk about the Defendant’s relationship with the victim,

you may do that.

11

Appellant’s counsel then asked appellant if he had a prior relationship with Diles.

Appellant answered: “Yes.” Counsel asked appellant if he knew Diles “to be a

Crip.” The State objected. The court called the parties to the bench and stated that

appellant’s counsel had violated the motion in limine by asking appellant whether he

knew Diles to be a Crip. Appellant’s counsel responded:

You stated to me that the prior relationship between [appellant] and

[Diles] I can go into. The prior relationship between them is that there

would be several times that [Castillo] would be abused by [Diles]. He

would — [Castillo] would call [appellant] to come over there to protect

her. [Appellant] would come. When he would get there, [Diles] would

— there would be other Crips outside. He would act as though, you

know, what are you here for, this, that and the other. And so the prior

relationship between the parties is that he knew that he was a Crip. He

knew that he was a [sic] abusive. He knew that he would have to come

over there and protect [Castillo]. That’s the relationship that he knew,

which formed his basis for his opinion and his state of mind at the time

he pulled the trigger.

The court responded that it would not allow testimony regarding Diles’s alleged gang

membership and Diles’s relationship with Castillo. The court determined that the

prejudicial effect of the proposed testimony outweighed its relevance, if any.

Appellant’s counsel objected on the record. She asserted that the proposed

testimony regarding “the prior specific acts of violence” should be admissible to

explain appellant’s defensive state of mind when he shot the gun. Additionally,

counsel asserted that the proposed testimony would explain Diles’s “ambiguously

aggressive” conduct. Appellant’s counsel stated: “[I]t’s ambiguous as to exactly

what the purpose was for [Diles] grabbing [appellant] and what manner that [Diles]

grabbed him.”

The trial court again refused appellant’s request to elicit testimony regarding

Diles’s specific bad acts. The court stated: “It is unambiguous with regards [to

12

appellant’s] recitation of how this offense occurred. Therefore, I find that the specific

bad acts that you are attempting to elicit do nothing other than to attempt to show

character conformity on the part of [Diles].”

The State reexamined appellant. Appellant testified: “The only reason I even

attempted to grab [the gun] is because he reached for it.”

Appellant’s counsel next called Castillo’s half-sister, Creola Borner. Borner

testified that, in late March or April 2012, Castillo visited Borner and told her about

the night Diles died. According to Borner, Castillo stated that appellant and Diles

were fighting and that “Mellow had [appellant] from behind and he was trying to get

to his gun and [appellant] had got to it first.”

Appellant’s counsel approached the bench after Borner testified. Counsel

again requested that the court admit testimony regarding Diles’s character and

reputation because appellant had raised the issue of self-defense. The court denied

counsel’s request.

Appellant’s counsel made an offer of proof before closing arguments. 7 She

stated:

If [appellant was] allowed to bring in the opinion and reputation

character of [Diles], [appellant] would have testified to the fact that he

knew that [Diles] was a Crip. Also . . . we would have, the autopsy

report that was entered into evidence, we would have highlighted for the

jury the fact that he had Crip tattoos on his body. . . . [Appellant] would

testify to the fact that on numerous occasions [Castillo] called him to

pick her up after [Diles] had abused her, blackened her eye, bruised her

as well as beat her up and pulled out her hair. [Borner] . . . would have

7

Counsel purported to make a bill of exception; however, counsel proffered the substance of

the excluded evidence before the trial court on the record. Under these circumstances, counsel

made an offer of proof, rather than a bill of exception. Compare Tex. R. Evid. 103 with Tex. R.

App. P. 33.2; see also In re Estate of Miller, 243 S.W.3d 831, 837-38 (Tex. App.—Dallas 2008, no

pet.) (an offer of proof formerly was referred to as an informal bill of exception).

13

testified to the fact that she personally, while living with [Diles] and

[Castillo] personally witnessed [Diles] in a very violent nature abuse

[Castillo] . . . drag her downstairs, that when they would try to take him

off of her that he would pull patches of hair out of her head such that

now she has to wear a wig and that she witnessed, in fact, where

[Castillo] would call [appellant] to come pick her up after being abused

by [Diles]. Also . . . there was testimony elicited by [Castillo] that stated

she has never witnessed [Diles] smoke crack in her home. I would have

impeached that statement because when [Borner] lived with [Castillo]

and [Diles] she testified she and [Castillo] personally witnessed [Diles]

smoke crack in their home. In addition to that, [Castillo] also stated . . .

that their relationship was a good relationship. They had their good days

and bad days, and the most they ever did was push each other. I could

have impeached her with that same evidence in regards to the violent

nature and the violence that occurred between the two of them had I

been able to offer the witness — through this evidence through

[appellant] as well as [Borner].

The parties presented closing argument on the fourth day of trial. The court

instructed the jury on the law, including the law of self-defense. Appellant’s counsel

argued during her closing argument that appellant was justified in killing Diles

because he acted in self-defense. Counsel argued: “When you grab a man in the

fashion that . . . [Diles] grabbed [appellant], your intentions are clear. He wasn’t

punching holes in the wall at that time, so the only reason that he grabbed him at that

point was to harm him.” Counsel stated: “No witness told you that [appellant] was

starting to beat [Diles] up. No witness told you that he was trying to harm him, only

that he was trying to get away.” Counsel argued that appellant shot Diles because

Diles went for appellant’s gun during their struggle. Counsel asserted: “[Appellant]

thought that if [Diles] got the weapon before he did that [Diles] was going to go

ahead and finish it off.”

The State argued that appellant’s version of events was not credible. The State

urged the jury to accept Castillo’s and Pineda’s versions of events, which described

appellant shooting Diles at a close range while standing, and not while struggling

14

with Diles. The State argued that Castillo’s and Pineda’s testimony established that

appellant was not acting in self-defense when he shot Diles.

The jury found appellant guilty of murder, and the trial court assessed

appellant’s punishment at 45 years’ imprisonment. Appellant timely appealed.

EXCLUSION OF EVIDENCE

In his first three issues, appellant contends that the trial court abused its

discretion by excluding testimony regarding (1) Diles’s “repeated physical abuse of”

Castillo; (2) Diles’s “prior convictions for the offenses of robbery and assault;” and

(3) appellant’s knowledge “that [Diles] was a member of the Crips, a violent street

gang.” Appellant’s three issues are each tied to a category of excluded evidence.

Appellant argues his three issues together. Appellant argues that the trial court

abused its discretion by excluding the evidence because the evidence was admissible

(1) to support his theory of self-defense; (2) to test Castillo’s credibility; and (3) to

rebut a false impression of Diles’s peaceable character. Additionally, appellant

argues that the excluded evidence was not unfairly prejudicial or otherwise subject to

exclusion pursuant to Texas Rule of Evidence 403.

Appellant contends that reversal is warranted because the trial court’s

evidentiary errors deprived him of his constitutional right to present a complete

defense. See Tex. R. App. P. 44.2(a).8 Alternatively, appellant argues that the trial

8

“[T]here are two distinct scenarios in which rulings excluding evidence might rise to the

level of a constitutional violation: 1) a state evidentiary rule which categorically and arbitrarily

prohibits the defendant from offering otherwise relevant, reliable evidence which is vital to his

defense; and 2) a trial court’s clearly erroneous ruling excluding otherwise relevant, reliable

evidence which forms such a vital portion of the case that exclusion effectively precludes the

defendant from presenting a defense.” Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)

(internal quotations omitted). Appellant does not complain that a state evidentiary rule

categorically and arbitrarily prohibited him from offering otherwise relevant, reliable evidence

which is vital to his defense; he argues only that the trial court made clearly erroneous rulings

excluding admissible evidence that prevented him from presenting his defense.

15

court’s errors affected his substantial rights. See Tex. R. App. P. 44.2(b).

The State counters appellant’s arguments on an issue by issue basis, examining

each category of excluded evidence. The State argues that the trial court acted within

its discretion when it excluded testimony relating to Diles’s treatment of Castillo and

appellant’s knowledge of Diles’s gang membership. The State argues that this

evidence was irrelevant and would have shown only that Diles acted in conformity

with a violent character. The State also argues that appellant did not preserve error

with respect to testimony regarding Diles’s prior convictions for assault and robbery.

We first discuss whether appellant preserved error regarding evidence of

Diles’s prior convictions; we hold that he did not and overrule issue two.

We then address, in turn, appellant’s arguments that testimony regarding

Diles’s treatment of Castillo and gang membership was admissible (1) to support his

theory of self-defense; (2) to test Castillo’s credibility; or (3) to rebut a false

impression of Diles’s peaceable character. We determine that the excluded testimony

was not admissible under appellant’s theories, was properly excluded at the trial

court’s discretion, or that a complaint of exclusion under the argued theory of

admissibility was not preserved for appeal. See Tex. R. App. P. 33.1; Reyna v. State,

168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“[I]t is not enough to tell the judge that

evidence is admissible. The proponent, if he is the losing party on appeal, must have

told the judge why the evidence was admissible.”). We overrule issues one and

three.9

I. Error Preservation at Trial

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

testimony regarding Diles’s prior convictions for assault and robbery. The State

9

We do not analyze harm because we conclude that the trial court did not abuse its

discretion. See Wiley, 74 S.W.3d at 408.

16

argues that appellant did not preserve error regarding issue two because appellant

never attempted to introduce evidence of Diles’s convictions at trial and the trial

court never ruled on the admissibility of such evidence. Appellant points to two

locations in the record that, he asserts, establish preservation of error at trial. We

consider the locations in turn.

A. The Bench Conference before Opening Statements

Appellant asserts that, during the bench conference before opening statements,

his counsel requested permission to elicit evidence regarding appellant’s knowledge

of Diles’s prior convictions. Appellant argues that his counsel’s request, made

outside the presence of the jury, preserved error. See Tex. R. Evid. 103(a)(1), 60 Tex.

B.J. 1130 (1998, superseded 2015) (“When the court hears objections to offered

evidence out of the presence of the jury and rules that such evidence be admitted,

such objections shall be deemed to apply to such evidence when it is admitted before

the jury without the necessity of repeating those objections.”).10

At the bench conference, the parties and the court discussed the State’s motion

in limine and which subjects the court would allow appellant’s counsel to discuss

during her opening statement. Appellant’s counsel asserted that she anticipated the

evidence at trial would show that appellant knew that Diles previously had been

convicted for assault and theft. Counsel requested that she be allowed to assert

appellant’s knowledge of Diles’s convictions during her opening statement. The

State opposed counsel’s request, stating: “I believe that it will be premature to go

into [Diles’s] past without seeing the testimony develop.” The trial court ruled: “For

10

The Texas Court of Criminal Appeals adopted revisions to the Texas Rules of Evidence,

except as to Rules 511 and 613, effective April 1, 2015. See Final Approval of Amendments to the

Texas Rules of Evidence, Misc. Docket No. 15-001 (Tex. Crim. App. Mar. 12, 2015). We cite to

the previous version of the Rules because appellant’s trial occurred in 2013, before the effective

date of the amendments.

17

purposes of opening statements, I am going to grant the State’s [m]otion in [l]imine

with regards to the prior convictions of [Diles] . . . along with the information

regarding [Diles’s] gang affiliation.” Additionally, the court prohibited appellant’s

counsel from asserting during opening that appellant had knowledge of Diles’s prior

convictions.

Appellant’s counsel asked the court: “[J]ust so that I’m clear, we can’t bring

up the fact that [appellant] knew that [Diles] was a Crip.” The court responded:

“[A]bsent additional information that may or may not be developed during the trial,

that’s correct. Since I haven’t ruled on the admissibility of that evidence, then at this

point I’m not going to allow you to talk to the jury about it.” Appellant’s counsel did

not request clarification regarding the court’s ruling prohibiting her from asserting

appellant’s knowledge of Diles’s prior convictions.

Texas Rule of Appellate Procedure 33.1(a)(1) provides that, to preserve error

for appellate review, a party must object in the trial court and state “the grounds for

the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds

were apparent from the context.” While no “hyper-technical or formalistic use of

words or phrases” is required in order for an objection to preserve error, the objecting

party nonetheless must “‘let the trial judge know what he wants, why he thinks he is

entitled to it, and to do so clearly enough for the judge to understand him at a time

when the judge is in the proper position to do something about it.’” Pena v. State,

285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d

907, 908-09 (Tex. Crim. App. 1992)). Rule 33.1 also requires that the trial court rule

on the request, objection, or motion, either expressly or implicitly, or refuse to rule on

the request, objection, or motion, and the complaining party to have objected to the

refusal. Tex. R. App. P. 33.1(a)(2).

18

On this record, we determine that, during the bench conference prior to

opening statements, appellant did not request or receive a ruling on the admissibility

of testimony regarding Diles’s prior convictions for assault and robbery. Appellant’s

counsel argued against the State’s motion in limine. She further requested that she be

allowed to assert appellant’s knowledge of Diles’s criminal convictions during her

opening statement. The trial court denied counsel’s request. See Norton v. State, 564

S.W.2d 714, 718 (Tex. Crim. App. [Panel Op.] 1978) (the character and extent of a

defendant’s opening statement are subject to the control of the trial court). The trial

court did not clarify its ruling with respect to Diles’s prior convictions; however, it

stated, with respect to its ruling prohibiting counsel from discussing Diles’s gang

membership: “I haven’t ruled on the admissibility of that evidence.”

We hold that appellant did not preserve error regarding the admissibility of

testimony as to Diles’s prior convictions because appellant’s counsel did not request

or receive a ruling on the admissibility of such testimony at the bench conference

prior to opening statements. See Tex. R. App. P. 33.1; cf. Warner v. State, 969

S.W.2d 1, 2 (Tex. Crim. App. 1998) (“[W]e have held that a ruling on a State’s

motion in limine that excludes defense evidence is subject to reconsideration

throughout trial and that to preserve error an offer of the evidence must be made at

trial.”).

B. Appellant’s Redirect Examination

Appellant directs our attention to a second location in the record where he

asserts that his counsel preserved error. The record from the fourth day of trial shows

the following exchange during appellant’s redirect examination:

[APPELLANT’S COUNSEL:] Did you have a prior relationship with

[Diles]?

[APPELLANT:] Yes, ma’am.

19

[APPELLANT’S COUNSEL:] Did you know him to be a Crip?

[APPELLANT:] Yes, ma’am.

[THE STATE]: Your Honor, I would object.

Appellant’s counsel and the State approached the bench. The trial court stated that

appellant’s counsel had violated the motion in limine. Appellant’s counsel requested

permission to elicit testimony regarding Diles’s “prior specific acts of violence” to

explain appellant’s state of mind at the time he shot Diles and to clarify whether

appellant or Diles was the first aggressor. Counsel argued for the admissibility of

testimony regarding Diles’s gang membership and violence toward Castillo; counsel

did not ask permission to question appellant regarding Diles’s criminal convictions.

The trial court denied counsel’s request.

In addition to Texas Rule of Appellate Procedure 33.1, the complaining party

must comply with Texas Rule of Evidence 103(a)(2) to preserve error regarding a

trial court’s decision to exclude evidence. This rule requires making an “offer of

proof,” unless the substance of the evidence was apparent from the context within

which questions were asked. Tex. R. Evid. 103(a)(2), 60 Tex. B.J. 1130 (1998,

superseded 2015); see Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009);

see also Tex. R. App. P. 33.1; Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.

App. 2002) (Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence

103 require the party complaining on appeal about a trial court’s exclusion of

evidence to “have done everything necessary to bring to the judge’s attention the

evidence rule or statute in question and its precise and proper application to the

evidence in question.”) (internal quotations and brackets omitted). Texas Rule of

Evidence 103(a)(2) provides: “Error may not be predicated upon a ruling which . . .

excludes evidence unless a substantial right of the party is affected, and . . . the

substance of the evidence was made known to the court by offer, or was apparent

20

from the context within which questions were asked.” “The offer of proof may

consist of a concise statement by counsel, or it may be in question-and-answer form.”

Mays, 285 S.W.3d at 889. If the offer of proof is made in the form of a statement, the

proffer, “‘must include a reasonably specific summary of the evidence offered and

must state the relevance of the evidence unless the relevance is apparent, so that the

court can determine whether the evidence is relevant and admissible.’” Id. at 890

(quoting Warner, 969 S.W.2d at 2).

The record shows that appellant’s counsel made an offer of proof by

summarizing testimony that she wished to elicit from appellant as to Diles’s physical

abuse of Castillo and Diles’s gang membership. Counsel did not make an offer of

proof as to Diles’s prior criminal convictions. It is not apparent from counsel’s

questions to appellant, before the bench conference, that counsel intended to question

appellant regarding Diles’s criminal history.

We hold that appellant did not preserve a complaint regarding the exclusion of

evidence as to Diles’s prior criminal convictions because appellant did not make an

offer of proof regarding such testimony and the substance of the testimony was not

otherwise apparent from the context of appellant’s redirect examination. See Tex. R.

Evid. 103(a)(2); Warner, 969 S.W.2d at 2; see also Tex. R. App. P. 33.1(a); Leyba v.

State, 416 S.W.3d 563, 574-75 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)

(defendant in a murder case did not preserve error regarding the exclusion of victim’s

criminal history because defendant did not request a specific ruling regarding the

admissibility of victim’s criminal history and defendant did not attempt to introduce

evidence of victim’s criminal history during trial).

Appellant does not argue that additional locations in the record establish

preservation, and we have found no instance of error preservation during our

independent review of the record. We hold that appellant failed to preserve error

21

regarding the trial court’s exclusion of testimony as to Diles’s prior convictions for

assault and robbery. We overrule appellant’s second issue.

II. Admissibility of Evidence

Appellant contends that the trial court erred in excluding evidence regarding

Diles’s physical abuse of Castillo (issue one) and appellant’s knowledge of Diles’s

gang membership (issue three). Appellant asserts three theories under which he

contends this evidence should have been admissible: (1) to support appellant’s theory

of self-defense; (2) to test Castillo’s credibility; and (3) to rebut a false impression of

Diles’s peaceable character. We state the applicable standard of review and then

address appellant’s theories of admissibility in turn.

A. Standard of Review

A trial court’s decision to admit or exclude evidence is reviewed under an

abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). We will not reverse a trial court’s ruling unless that ruling falls outside the

zone of reasonable disagreement. See id. We uphold the trial court’s ruling if it is

reasonably supported by the record and is correct under any theory of law applicable

to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Additionally, we must review the trial court’s ruling in light of what was before the

court at the time the ruling was made. See id.

B. Self-Defense

In general, evidence of a person’s character may not be used to prove that the

person “behaved in a particular way at a given time.” Tate v. State, 981 S.W.2d 189,

192 (Tex. Crim. App. 1998); see Tex. R. Evid. 404(a), 60 Tex. B.J. 1134 (1998,

superseded 2015). However, this limit on character evidence is not absolute. Texas

Rule of Evidence 404(a)(2) provides that a defendant in a homicide prosecution who

22

raises the issue of self-defense may introduce evidence of the victim’s character trait

for violence to demonstrate that the victim was, in fact, the first aggressor. Tex. R.

Evid. 404(a)(2), 60 Tex. B.J. 1134 (1998, superseded 2015); see Ex parte Miller, 330

S.W.3d 610, 619 (Tex. Crim. App. 2009); Torres, 71 S.W.3d at 760.11 A witness

may testify about a victim’s violent character only through reputation and opinion

testimony under Rule 405(a). See Tex. R. Evid. 405(a), 60 Tex. B.J. 1134 (1998,

superseded 2015); Ex parte Miller, 330 S.W.3d at 619.12

A defendant also may introduce evidence under Rule 404(b) of a “victim’s

prior specific acts of violence when offered for a non-character purpose — such as

his specific intent, motive for an attack on the defendant, or hostility — in the

particular case.” Ex parte Miller, 330 S.W.3d at 620; see Tex. R. Evid. 404(b), 60

Tex. B.J. 1134 (1998, superseded 2015). “As long as the proffered violent acts

explain the outward aggressive conduct of the deceased at the time of the killing, and

in a manner other than demonstrating character conformity only, prior specific acts of

violence may be admitted even though those acts were not directed against the

defendant.” Torres, 71 S.W.3d at 762. “The proper predicate for the specific violent

prior act by the deceased is some act of aggression that tends to raise the issue of self-

defense, which the violent act may then help clarify.” Torres v. State, 117 S.W.3d

891, 895 (Tex. Crim. App. 2003) (emphasis in the original).

Finally, a defendant may offer reputation or opinion testimony or evidence of

specific prior acts of violence by the victim to show the “reasonableness of [the]

11

Character evidence introduced to prove the victim’s status as first aggressor is called

“uncommunicated character” evidence because “it does not matter if the defendant was aware of the

victim’s violent character.” Ex parte Miller, 330 S.W.3d at 619.

12

Texas common law was broader and allowed the admission of evidence of specific

instances of behavior to show a victim’s character trait for violence. Ex parte Miller, 330 S.W.3d at

619 n.21; see Dempsey v. State, 266 S.W.2d 875 (Tex. Crim. App. 1954). The Texas Rules of

Evidence superseded the common law standard. See Tate, 981 S.W.2d at 192.

23

defendant’s claim of apprehension of danger” from the victim. Ex parte Miller, 330

S.W.3d at 618. This purpose invokes Rule 404(b) because the evidence is offered to

show the defendant’s own self-defensive state of mind and the reasonableness of that

state of mind. Id. at 618-19; Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App.

1999). The defendant must show that he was aware of the victim’s specific acts for

the evidence to be admissible for this purpose. Torres, 71 S.W.3d at 760 n.4.13

Appellant argues that he was entitled to introduce evidence of “Diles’[s]

character for violence via the specific acts he proffered” to explain Diles’s

“ambiguous conduct in grabbing Appellant by the neck.” According to appellant, the

evidence of Diles’s prior bad acts was probative of whether appellant or Diles was the

first aggressor. Additionally, appellant asserts that he offered the evidence to prove

“his own self-defensive state of mind and the reasonableness of that state of mind.”

Appellant does not specify how each of the proffered acts contributes to his

theory of self-defense, nor does appellant analyze the trial court’s rulings in light of

what was before the court at the time the ruling was made. See Willover, 70 S.W.3d

at 845; Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998) (“In determining

the validity of a trial court’s decision to exclude evidence, we examine the record as it

appeared at the time of the trial court’s ruling.”).

We first address whether the trial court abused its discretion in excluding the

proffered evidence to show whether appellant or Diles was the first aggressor. We

examine admissibility as it relates to first aggressor under Rules 404(a)(2) and 405,

and then we examine the issue under Rule 404(b). After considering admissibility as

it relates to first aggressor, we turn to consider whether the trial court abused its

13

Evidence introduced to show a defendant’s apprehension of danger is called

“communicated character” evidence “because the defendant is aware of the victim’s violent

tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or

not.” Ex parte Miller, 330 S.W.3d at 618.

24

discretion under Rule 404(b) by excluding the evidence as offered to show

appellant’s apprehension of danger from Diles.

1. First aggressor

Appellant asserts that Diles’s intent in grabbing appellant by the neck was

inherently ambiguous because appellant’s testimony that Diles grabbed him in a

harmful manner contradicted Castillo’s and Brown’s testimony that Diles grabbed

appellant to control his outburst and to calm him down. Appellant argues that this

ambiguity placed in question whether Diles or appellant was the first aggressor.

We assume without deciding that the issue of first aggressor was legitimately

in dispute.14

We determine that the trial court did not abuse its discretion in excluding the

proffered evidence when the evidence was offered to show Diles’s character trait for

violence. A defendant who raises the issue of self-defense may introduce evidence of

a victim’s character trait for violence pursuant to Rule 404(a)(2) to show that the

victim was, in fact, the first aggressor, but the defendant may do so only through

reputation and opinion testimony under Rule 405(a). See Tex. R. Evid. 404(a)(2),

405(a); Ex parte Miller, 330 S.W.3d at 619. Testimony regarding Diles’s alleged

physical abuse of Castillo (issue one) and testimony that appellant knew that Diles

was a member of the Crips (issue three) is not reputation or opinion testimony. Cf.

14

Appellant, Castillo, and Brown each testified that Diles initiated contact with appellant by

grabbing appellant’s neck. Appellant’s counsel asserted during her closing argument: “When you

grab a man in the fashion that . . . [Diles] grabbed [appellant], your intentions are clear. [Appellant]

wasn’t punching holes in the wall at that time, so the only reason that [Diles] grabbed him at that

point was to harm him.” Counsel further stated: “No witness told you that [appellant] was starting

to beat [Diles] up. No witness told you that [appellant] was trying to harm him, only that he was

trying to get away.” On appeal, appellant’s counsel argued that appellant could have been

considered the first aggressor for punching holes in the apartment wall. Counsel also asserted that it

is ambiguous whether Diles put appellant in a playful, rather than harmful, wrestling hold, and that

it is ambiguous whether Diles was reaching for appellant’s gun when Diles grabbed appellant’s shirt

in Castillo’s version of events.

25

Tibbs v. State, 125 S.W.3d 84, 89 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(gang membership evidence may be admissible under Rule 404(b) to show bias,

motive, intent, or to refute a defensive theory).15

We also determine that the trial court did not err in excluding the proffered

evidence when offered to establish Diles’s status as first aggressor through specific

instances of past conduct. Under Rule 404(b), a victim’s prior acts of violence also

may be admissible to clarify the issue of first aggressor if the proffered act explains

the victim’s ambiguously aggressive conduct. See Torres, 117 S.W.3d at 895;

Torres, 71 S.W.3d at 762. The victim’s prior act may be admissible to explain,

among other things, the victim’s specific intent, motive, or hostility in a particular

case. See Tex. R. Evid. 404(b); Ex parte Miller, 330 S.W.3d at 620; see, e.g., Torres,

117 S.W.3d at 896-97 (defendant was entitled to offer evidence that, several days

before he shot victim, victim had climbed through his ex-girlfriend’s aunt’s window

and threatened the aunt and her children; this evidence was relevant to show that

victim had a specific motive or intent to be the first aggressor when he climbed

through his ex-girlfriend’s window several days later and defendant shot him); Tate,

981 S.W.2d at 193 (evidence that victim stated to defendant’s aunt, several months

prior to his death, that he would kill defendant was admissible to show victim’s state

of mind on the night he arrived at defendant’s home and defendant stabbed him).16

15

Rule 405 provides that: “In all cases where [reputation or opinion] testimony is admitted

under this rule, on cross-examination inquiry is allowable into relevant specific instances of

conduct.” Appellant does not argue that the trial court denied him the opportunity to cross-examine

a character witness through inquiry into relevant specific instances of Diles’s conduct. This matter

is addressed in further detail below.

16

Appellant cites to Thompson v. State, 659 S.W.2d 649, 654 (Tex. Crim. App. 1983),

superseded by rule, Tex. R. Evid. 404, as recognized in Mozon, 991 S.W.2d at 845-46, to support

his assertion that “the trial court’s reasoning and analysis in excluding evidence of Diles’[s] violent

past was an abuse of discretion.” Thompson was decided under the now-superseded common law

standard, which allowed the admission of evidence of prior specific instances of violence to show a

victim’s character trait for violence. See id. at 653-55; Ex parte Miller, 330 S.W.3d at 619 n.21;

26

Appellant has not explained how the proffered evidence of Diles’s physical

abuse of Castillo and appellant’s knowledge of Diles’s gang membership explain

Diles’s aggressive conduct, and in a manner other than one that only demonstrates

character conformity. See Torres, 71 S.W.3d at 761-62.17

Appellant’s trial counsel proffered the following statement at the bench

conference during appellant’s redirect examination:

“The prior relationship between [appellant and Diles] is that there would

be several times that [Castillo] would be abused by [Diles]. He would

— [Castillo] would call [appellant] to come over there to protect her.

[Appellant] would come. When he would get there, [Diles] would —

there would be other Crips outside. He would act as though, you know,

what are you here for, this, that and the other. And so the prior

relationship between the parties is that he knew that he was a Crip. He

knew that he was a [sic] abusive. He knew that he would have to come

over there and protect [Castillo]. That’s the relationship that he knew,

which formed his basis for his opinion and his state of mind at the time

he pulled the trigger.

Appellant’s trial counsel later asserted that the proffered evidence clarified Diles’s

ambiguous purpose and manner in grabbing appellant. Counsel did not assert that

Mozon, 991 S.W.2d at 845-46. Appellant asserts: “[T]he [Thompson] court . . . concluded that it

was error to exclude evidence of the victim’s violent character because his act of walking toward

the defendant with his arms outstretched was ambiguously aggressive.” Thompson held that the

trial court properly excluded evidence of the victim’s prior convictions because the defendant

“failed to establish the prior convictions involved acts of violence which would explain the

[victim’s] ambiguously aggressive conduct toward [the defendant] at the time of the offense.”

Thompson, 659 S.W.2d at 655.

17

Appellant argues that Diles’s intent in grabbing appellant was ambiguous. He asserts:

“[T]he vast body [of] evidence of Diles’[s] character and reputation for violence and aggression

[a]ppellant repeatedly sought to elicit was clearly relevant.” Appellant’s trial counsel did not seek

to admit character evidence. Counsel sought to admit evidence regarding Diles’s repeated physical

abuse of Castillo (issue one) and evidence that appellant knew that Diles was a member of the Crips

(issue three). Evidence of these extraneous acts is “admissible only to the extent that they are

relevant for a purpose other than character conformity.” Torres, 71 S.W.3d at 760; see Tex. R.

Evid. 404(b). Appellant does not explain how testimony of Diles’s physical abuse of Castillo and

appellant’s knowledge of Diles’s gang membership showed anything other than Diles’s conformity

with a violent character or clarified Diles’s intent in grabbing appellant.

27

Diles had any ill will toward appellant for responding to Castillo’s calls for help, nor

did counsel otherwise connect the proffered evidence of Diles’s physical abuse of

Castillo and appellant’s knowledge of Diles’s gang membership to Diles’s state of

mind.

On this record, we hold that the trial court acted within its discretion in

excluding evidence of Diles’s physical abuse of Castillo (issue one) and of

appellant’s knowledge that Diles was a member of the Crips (issue three), when

offered to establish Diles’s status as first aggressor through specific instances of past

conduct, because appellant did not establish that the proffered evidence clarified

whether appellant or Diles was the first aggressor, and did so in a manner other than

demonstrating Diles’s conformity with a violent character only. See Tex. R. Evid.

404(b); Torres, 71 S.W.3d at 762; Hayes v. State, 124 S.W.3d 781, 786 (Tex. App.—

Houston [1st Dist.] 2003), aff’d, 161 S.W.3d 507 (Tex. Crim. App. 2005) (trial court

properly excluded evidence that victim confronted an individual with a gun after

being insulted because there was no evidence that victim insulted defendant or that

victim had any animosity toward defendant).

2. Appellant’s apprehension of danger

A murder defendant arguing self-defense also may offer evidence, pursuant to

Rule 404(b), that he was aware of the victim’s specific acts of violence to show the

defendant’s reasonable apprehension of danger from the victim. See Tex. R. Evid.

404(b); Ex parte Miller, 330 S.W.3d at 618; Torres, 71 S.W.3d at 760 n.4; Thompson

v. State, 659 S.W.2d 649, 653 (Tex. Crim. App. 1983), superseded by rule, Tex. R.

Evid. 404, as recognized in Mozon, 991 S.W.2d at 845-46.

The Texas Penal Code provides, with certain exceptions: “[A] person is

justified in using force against another when and to the degree the actor reasonably

believes the force is immediately necessary to protect the actor against the other’s use

28

or attempted use of unlawful force.” See Tex. Penal Code Ann. § 9.31(a) (Vernon

2011). Deadly force in self-defense is justified when a person is justified in using

force pursuant to section 9.31 and “the actor reasonably believes the deadly force is

immediately necessary . . . to protect the actor against the other’s use or attempted use

of unlawful deadly force; or . . . to prevent the other’s imminent commission of

aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or

aggravated robbery.” Id. § 9.32 (Vernon 2011).

Appellant testified that he feared for his life when Diles was choking him.

Appellant stated that he could not breathe. Appellant’s counsel asked appellant:

“What is the reason that you shot Jonathan [Diles] that night?” Appellant responded:

“He reached to grab for my gun.” During cross-examination, appellant stated: “The

only reason I even attempted to grab [the gun] is because [Diles] reached for it.”

Diles’s autopsy report lists trace amounts of cocaine, cocaine metabolites, and

ethanol found in Diles’s blood after his death. According to the toxicologist who was

called by appellant, the levels of cocaine and cocaine metabolites in Diles’s blood

indicated “binge-style” cocaine use over many hours immediately before his death;

the ethanol level in Diles’s blood indicated alcohol intoxication at a level over twice

the legal limit. At these levels, a person would be influenced by the substances to

“lower inhibitions,” “make rash decisions,” and “be more in an agitated state.”

“A trial court is within its discretion to exclude prior violent acts if the victim’s

conduct was plainly aggressive and no explanation is necessary to show that the

defendant reasonably feared for his life.” Smith v. State, 355 S.W.3d 138, 150-51

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Torres, 71 S.W.3d at 762).

Diles’s autopsy report suggests that Diles was significantly intoxicated when he

grabbed appellant; he may have experienced lowered inhibitions, made rash

decisions, and been in an agitated state. Appellant’s description of Diles’s conduct in

29

grabbing appellant around the neck without saying anything, choking appellant until

he could not breathe, and reaching for appellant’s gun approaches conduct that was

unambiguously aggressive. If Diles’s conduct was unambiguously aggressive and

needs no explanation to show appellant’s reasonable fear for his life, then the trial

court arguably acted within its discretion in excluding the proffered evidence because

it was irrelevant apart from its tendency to show Diles’s conformity with a violent

character. See Tex. R. Evid. 404(b); Ex parte Miller, 330 S.W.3d at 618-19; Mozon,

991 S.W.2d at 846; Smith, 355 S.W.3d at 150-51 (trial court acted within its

discretion to exclude evidence that defendant knew appellant had previously stabbed

another individual because victim’s acts, as testified to by defendant, of pulling a

knife and stabbing defendant were unambiguously aggressive and needed no

explanation to show that defendant reasonably feared for his life); London v. State,

325 S.W.3d 197, 206 (Tex. App.—Dallas 2008, pet. ref’d) (trial court acted within its

discretion to exclude evidence of victim’s gang affiliation and terrorization of

neighborhood because victim’s unambiguously aggressive act, as testified to by

defendant, of shooting at defendant’s car needed no explanation and because the

proffered evidence did nothing more than show victim’s conformity with a violent

character).

Nevertheless, assuming for the sake of argument that Diles’s conduct was

ambiguous, the trial court acted within its discretion in excluding the proffered

evidence because the evidence was not probative of the reasonableness of appellant’s

fear for his life. See Tex. R. Evid. 404(b); Ex parte Miller, 330 S.W.3d at 618;

Thompson, 659 S.W.2d at 654 (upholding trial court’s decision to exclude evidence

of victim’s prior convictions where the convictions were not “probative of the

reasonableness of [defendant’s] belief her use of force was necessary within the

meaning of [Texas Penal Code sections] 9.31 and 9.32”). Appellant does not explain

30

how the proffered evidence of Diles’s physical abuse of Castillo and Diles’s gang

membership clarifies Diles’s conduct as deadly conduct justifying appellant’s use of

deadly force in self-defense. See Tex. Penal Code Ann. §§ 9.31, 9.32. Among other

things, appellant has not explained how the proffered evidence affected his belief that

the use of deadly force was immediately necessary to protect against Diles’s use or

attempted use of deadly force. See id. §§ 9.31, 9.32. Diles’s alleged abuse of Castillo

and Diles’s gang membership did not involve deadly weapons or chokeholds. The

altercation between Diles and appellant did not concern Diles’s treatment of Castillo

and was not asserted to be gang-related.

On this record, we conclude that evidence pertaining to Diles’s physical abuse

of Castillo and Diles’s gang membership had no clear bearing on the altercation

between appellant and Diles such that the proffered evidence showed appellant’s

reasonable fear for his life justifying deadly force in self-defense. Therefore, we hold

that the trial court acted within its discretion in excluding testimony regarding Diles’s

physical abuse of Castillo (issue one) and appellant’s knowledge that Diles was a

member of the Crips (issue three) because this evidence pertained solely to character

conformity. See id. §§ 9.31, 9.32; Tex. R. Evid. 404(b); Smith, 335 S.W.3d at 155

(evidence of victim’s gang-related tattoos properly excluded as irrelevant to the issue

of self-defense and unfairly prejudicial where the altercation leading to victim’s death

was not gang-related); cf. Thompson, 659 S.W.2d at 654 (victim’s prior convictions

for unlawfully carrying a weapon were not probative of the reasonableness of

defendant’s belief that her use of deadly force was necessary for self-defense where

victim approached defendant without showing a gun, defendant never testified that

she thought victim was armed, and defendant stated that she shot victim because she

“was scared of him”).

We hold that the trial court did not abuse its discretion by excluding testimony

31

regarding Diles’s physical abuse of Castillo (issue one) and appellant’s knowledge

that Diles was a member of the Crips (issue three) offered in support of appellant’s

self-defense theory.

C. Castillo’s Credibility

Next, appellant contends that the trial court abused its discretion by excluding

the proffered evidence when offered to challenge Castillo’s credibility.

Appellant asserts in his brief:

Castillo’s denials that Diles did not physically abuse her or smoke crack

cocaine in front of her or in their home stands in stark contrast with the

testimony of [a]ppellant and [Borner]. It is difficult to imagine a

situation where the accused would be more entitled to have the jury

gauge the credibility of a key prosecution witness, by confronting and

cross-examining that witness’s patently inconsistent statements in the

crucible of cross-examination, than in this case.18

We analyze appellant’s argument as challenging the trial court’s ruling limiting

appellant’s cross-examination of Castillo.19

The record shows that appellant’s counsel cross-examined Castillo about her

relationship with Diles as follows:

[APPELLANT’S COUNSEL:] Now, let’s talk a little bit about some of

the statements that you’ve made. Today you told the jury that you and

[Diles] knew each other for five and a half years?

[CASTILLO:] Correct.

[APPELLANT’S COUNSEL:] And that you guys had your problems,

18

Castillo’s statements were not inconsistent with appellant’s and Borner’s statement at the

time Castillo testified because Castillo testified before appellant and Borner testified. Appellant

does not clarify which of Castillo’s statements he considers “patently inconsistent.”

19

Appellant complains about only one trial court ruling in the section of his brief entitled

“This Evidence Bore Directly on Castillo’s Credibility.” He states: “Because the trial court’s

ruling is foreclosed by the controlling authority alluded to above, it was an abuse of discretion.”

32

your good days and your bad days?

[CASTILLO:] Correct.

[APPELLANT’S COUNSEL:] What do you mean by that?

[CASTILLO:] Like all couples have good days and bad days. You fight

sometimes, you argue. You argue and fuss and fight, and sometimes it’s

good and sometimes it’s not good. With us it was bad because he was

battling an addiction.

[APPELLANT’S COUNSEL:] And when you fought, he would get

physical with you, wouldn’t he?

[CASTILLO:] No, ma’am.

[APPELLANT’S COUNSEL:] It is your testimony here today that

[Diles], you’re telling this jury, that [Diles] was never physical with you;

is that your testimony to this jury today?

[CASTILLO:] If you want to call pushing, yeah, we pushed each other

around. As far as black eyes, punching, kicking, no.

[APPELLANT’S COUNSEL:] So, your testimony now is that you

would get physical in that you would — he would push you and you

would push him back?

[CASTILLO:] Yes.

[APPELLANT’S COUNSEL:] Is it your testimony that it never got

worse than that?

[CASTILLO:] Yes.

THE COURT: Will the attorneys approach please?

(Bench conference.)

THE COURT: All right. And perhaps there was — maybe you

misconstrued my ruling. Just so that we’re clear, we talked about

opening statements, and we talked about the fact that there may come a

time when reputation testimony could become admissible in regards to

33

[appellant’s] knowledge of [Diles’s] reputation.

[APPELLANT’S COUNSEL]: Right.

THE COURT: At this time, I have not ruled on [whether] extraneous

bad acts on the part of [Diles] are admissible for character conformity or

anything else. They’re clearly not relevant to prove character

conformity, and I haven’t ruled that they’re admissible for any other

purpose. I have granted the [m]otion in [l]imine. While I gave you

some latitude in opening statement, now I have not determined this

evidence to be admissible; and it’s not admissible at this time.

[APPELLANT’S COUNSEL:] Okay. I was responding to — on direct

examination, she said that they had their good days and bad days.

THE COURT: And she answered that question.

[APPELLANT’S COUNSEL:] And the reason for my questioning at

this point was because that answer mislead the jury to make it sound like

—

THE COURT: I’m not going to allow you to, I guess, there was a

[m]otion in [l]imine regarding that. It is still in effect.

[APPELLANT’S COUNSEL:] At this point, I would ask the Court that

I be allowed to go into that with this particular witness. And so you’re

saying — and I want to make sure — and I’m only doing this to make

sure that I’m asking at this point to be able to go into it with this

particular witness at this time.

THE COURT: I’ve made it very clear that —

[APPELLANT’S COUNSEL:] Okay.

(End of bench conference.)

1. Error preservation at trial

Texas courts recognize a “narrow exception” to Texas Rule of Evidence

103(a)(2)’s requirements for error preservation during the defendant’s cross-

examination of a State’s witness. See Holmes v. State, 323 S.W.3d 163, 169 (Tex.

34

Crim. App. 2009). A defendant may preserve a complaint when a trial court prohibits

the defendant from questioning a State’s witness about matters that affect the

“witness’s credibility” by merely establishing “‘what general subject matter he

desire[s] to examine the witness about during his cross-examination and, if

challenged, show on the record why such should be admitted into evidence.’” Id. at

168 (quoting Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987)). A

“witness’s credibility” refers to “personal characteristics of the witness.” Holmes,

323 S.W.3d at 168. Matters that affect a “witness’s credibility” are “matters which

might show malice, ill feeling, ill will, bias, prejudice, or animus.” Id. “The

credibility of a witness’s testimony,” in contrast, refers to the substance of the

evidence. Id.; see id at 170-71 (defendant’s proffer that he wished to challenge the

underlying science of a breathalyzer machine merely called into question the

substance of the State’s expert’s testimony, not the expert’s credibility). A defendant

who wishes to cross-examine a State’s witness regarding “the credibility of a

witness’s testimony” must preserve error according to Rule 103(a)(2). Id. at 169.

The record shows that appellant did not make an offer of proof concerning the

testimony he wished to elicit, during Castillo’s cross-examination, as to appellant’s

knowledge that Diles was a member of the Crips (issue three). Additionally, it is not

otherwise apparent from the record that appellant’s counsel wished to explore this

matter during Castillo’s cross-examination. We hold that appellant did not preserve a

complaint regarding the exclusion of testimony regarding appellant’s knowledge that

Diles was a member of the Crips during Castillo’s cross-examination. See Tex. R.

Evid. 103(a)(2); Holmes, 323 S.W.3d at 168-69; see also Tex. R. App. P. 33.1.

It is a closer question whether appellant preserved a complaint regarding the

exclusion of testimony as to Diles’s physical abuse of Castillo (issue one) for the

purpose of attacking Castillo’s credibility on cross-examination.

35

The record shows that appellant’s counsel examined Castillo regarding her

testimony on direct examination. Counsel asked Castillo to explain her statement that

she and Diles “had our good days and our bad days.” Counsel asserted at the bench

conference during cross-examination: [T]he reason for my questioning at this point

was because that answer mislead the jury to make it sound like —.” The trial court

interrupted appellant’s counsel at this point.

Appellant’s counsel never asserted that she wished to examine Castillo

regarding malice, ill feeling, ill will, bias, prejudice, or animus. See Holmes, 323

S.W.3d at 168. Additionally, counsel never asserted that she wished to examine

Castillo regarding “inconsistent statements, traits of character affecting credibility, or

evidence that might go to any impairment or disability affecting [her] credibility.”

See Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). Counsel’s questions to

Castillo and counsel’s argument to the trial court centered around the meaning of

Castillo’s answer on direct examination that she and Diles “had our good days and

our bad days;” counsel’s questions and arguments did not necessarily imply an attack

on Castillo’s credibility.20

Nevertheless, we assume without deciding that appellant preserved error

regarding the trial court’s exclusion of testimony as to Diles’s physical abuse of

Castillo during Castillo’s cross-examination. We examine whether the trial court

erred by excluding any additional testimony appellant may have sought to elicit on

the subject.

2. Collateral matter

The State contends that the trial court acted within its discretion by limiting

20

Additionally, it is not clear what other questions appellant’s counsel would have asked

Castillo. Cf. Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim. App. 1996) (trial court’s error in

excluding testimony, if any, was cured when defense counsel successfully elicited testimony; any

further testimony that appellant may have wished to elicit was not apparent from the context).

36

cross-examination testimony on the matter of Diles’s physical abuse of Castillo

because it was collateral to the issues at trial.

The general rule is that a party is not entitled to impeach a witness on a

collateral matter. Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990).

“‘The test as to whether a matter is collateral is whether the cross-examining party

would be entitled to prove it as a part of his case tending to establish his plea.’” Id.

(quoting Bates v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979)); see also

Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984) (“[A] ‘collateral’

question is one which seeks only to test the witness’[s] general credibility, or relates

to facts irrelevant to the issues at trial.”).21 Additionally, “[t]he possible animus,

motive, or ill will of a prosecution witness who testifies against the defendant is never

a collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable

restrictions, to show any relevant fact that might tend to establish ill feeling, bias,

motive, interest, or animus on the part of any witness testifying against him.”

Billodeau v. State, 277 S.W.3d 34, 42-43 (Tex. Crim. App. 2009).

Appellant contends that the matter of Diles’s physical abuse of Castillo bore

directly on “her animus, motive, and ill will.” Appellant, however, does not explain

this connection. We determine that the trial court did not err in determining that the

matter of Diles’s physical abuse of Castillo was collateral to the issues at trial because

it did not bear on a possible animus, motive, or ill will that Castillo had to testify

against appellant. See Tollett v. State, 422 S.W.3d 886, 893 n.2 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d) (“[A]ppellant does not explain, and we conceive of no

reason, why the excluded evidence supports a finding Officer Hernandez had a

21

Appellant does not contend that he had to prove Diles’s violent character or that the State

had to prove Diles’s peaceable character at trial. See Tate, 981 S.W.2d at 193 n.5 (“[A] victim’s

character is not an essential element of a claim of self-defense.”).

37

motive or bias to falsely testify.”).22

Appellant also contends that the matter of Diles’s physical abuse bore directly

on Castillo’s “credibility.” We determine that, to the extent the matter bore on

Castillo’s credibility, it did so only generally. “[T]here is an important distinction

between an attack on the general credibility of a witness and a more particular attack

on credibility that reveals ‘possible biases, prejudices, or ulterior motives of the

witness as they may relate directly to issues or personalities in the case at hand.’”

Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009) (citing Davis v.

Alaska, 415 U.S. 308, 316 (1974)). Diles’s abuse of Castillo does not explain Diles’s

intent on March 11, 2012, nor does it clarify appellant’s apprehension of danger from

Diles. We hold that the matter of Diles’s abuse of Castillo is collateral to the issues at

trial. See Keller, 662 S.W.2d at 365; Clay v. State, 390 S.W.3d 1, 12 (Tex. App.—

Texarkana 2012, pet. ref’d) (“[T]he attempted impeachment was an attack on the

witness’[s] general credibility — ‘you lied to your parents so we may infer that you

are lying about this sexual assault.’”). Therefore, the trial court did not abuse its

discretion in limiting testimony, during Castillo’s cross-examination, offered to

impeach Castillo’s credibility on a collateral matter. See Ramirez, 802 S.W.2d at

675.

3. False impression

Determining the matter to be collateral does not end our analysis. While

generally a party is not entitled to impeach a witness on a collateral matter, when a

witness leaves a false impression concerning a matter relating to her credibility, the

opposing party is allowed to correct that false impression. Id. at 675-76; see Daggett

22

Evidence of Diles’s physical abuse of Castillo may suggest that Castillo was predisposed

to testify in favor of appellant, the man who shot her abuser. Appellant does not explain how the

evidence shows that Castillo may have been predisposed to testify against appellant.

38

v. State, 187 S.W.3d 444, 454 n.24 (Tex. Crim. App. 2005) (“[T]he concept of

impeachment by contradiction permits courts to admit extrinsic evidence that specific

testimony is false, because contradicted by other evidence.”) (internal quotations

omitted). This type of impeachment, however, is only permissible when the witness

voluntarily testifies to the collateral matter. Lopez v. State, 928 S.W.2d 528, 531

(Tex. Crim. App. 1996). “The State may not rely on its own questioning on cross-

examination to contradict the defendant and get in evidence collateral matters and

evidence of convictions for other offenses which would otherwise be inadmissible.”

Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. [Panel Op.] 1980); see also

Saglimbeni v. State, 100 S.W.3d 429, 434 (Tex. App.—San Antonio 2002, pet. ref’d)

(“There is no reason the false impression rule should not work both ways.”).

Castillo did not voluntarily testify regarding Diles’s physical abuse. She

testified on direct examination that she and Diles “had our good days and our bad

days.” She further explained that the couple’s bad days were due to Diles’s drug

abuse. Appellant’s counsel asked Castillo to clarify her answer on cross-

examination. Castillo stated: “Like all couples have good days and bad days. You

fight sometimes, you argue. You argue and fuss and fight, and sometimes it’s good

and sometimes it’s not good. With us it was bad because he was battling an

addiction.” Counsel then asked: “And when you fought, he would get physical with

you, wouldn’t he?” Castillo answered: “No, ma’am.” She then qualified her

statement by testifying that she and Diles pushed each other around, but that the

abuse never got worse than that.

We determine that Castillo did not volunteer testimony regarding Diles’s

physical abuse; instead, she testified on this matter only when prompted by

appellant’s counsel. Under these circumstances, Castillo did not “open the door” to

the admission of evidence to correct a false impression. See Lopez, 928 S.W.2d at

39

531 (evidence not admissible to correct a false impression regarding defendant’s

behavior on drugs when the State asked appellant on cross-examination about his

behavior on drugs). We hold that the trial court did not abuse its discretion in

excluding testimony regarding Diles’s physical abuse of Castillo during Castillo’s

cross-examination.23

We hold that the trial court did not abuse its discretion by excluding testimony

regarding Diles’s physical abuse of Castillo (issue one) and appellant’s knowledge

that Diles was a member of the Crips (issue three) offered to attack Castillo’s

credibility.

D. Rebuttal Character Evidence

Finally, appellant argues that testimony regarding Diles’s physical abuse of

Castillo and appellant’s knowledge that Diles was a member of the Crips was

admissible to rebut the false impression Castillo gave to the jury of Diles’s peaceable

character. Appellant asserts that the State “opened the door” to rebuttal character

evidence by “recount[ing] that Diles’[s] nickname was ‘Mellow’” and by

“volunteering that Diles earned this inherently-peaceable nickname because ‘he was

just real laid back.’”

A witness may “open the door” to rebuttal character evidence in a homicide

case by placing the defendant’s or the complainant’s peaceable character at issue.

See Tex. R. Evid. 404(a)(2); Harrison v. State, 241 S.W.3d 23, 25-28 (Tex. Crim.

App. 2007) (trial court did not abuse its discretion by allowing rebuttal character

23

Additionally, the trial court did not abuse its discretion in excluding testimony from

appellant and Borner offered to rebut Castillo’s impression of Diles’s physical abuse because

Castillo did not “open the door” to such testimony. See Lopez, 928 S.W.2d at 531; cf. Hayden v.

State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (“Unless the witness’s testimony created a false

impression that is directly relevant to the offense charged, allowing a party to delve into the issue

beyond the limits of cross examination wastes time and confuses the issues.”) (internal quotations

omitted).

40

evidence from the State after a defense witness testified that defendant was a “good”

and “sweet” person); Rivera v. State, 82 S.W.3d 64, 67-68 (Tex. App.—San Antonio

2002, pet. ref’d) (trial court did not abuse its discretion by refusing rebuttal character

evidence from defendant after a State’s witness testified that victim’s nickname was

“Psycho” and that victim was called “Psycho” because “[h]e was kind of funny and

crazy all the time”). Under Rule 405, proof of character must be made by testimony

as to reputation or by testimony in the form of an opinion; cross-examination is

allowable into relevant specific instances of conduct. Tex. R. Evid. 405; Harrison,

241 S.W.3d at 25. Cross-examination rebuttal evidence may be elicited in the form

of “have you heard” or “were you aware” questions about specific instances of

conduct inconsistent with the character trait brought into issue. Harrison, 241

S.W.3d at 25.

The record shows that Appellant’s counsel was the first person at trial to refer

to Diles as “Mellow.” Counsel referred to Diles as “Mellow” in her opening

statement, and she continued to refer to Diles as “Mellow” throughout trial.

The record also shows that the State asked Castillo the following on direct

examination:

[THE STATE:] Did [Diles] have a nickname at all?

[CASTILLO:] Mellow.

[THE STATE:] Mellow. Do you know how he got that nickname?

[APPELLANT’S COUNSEL]: Objection, calls for speculation.

THE COURT: You may answer if you know.

[CASTILLO:] Me, ma’am?

THE COURT: Yes.

41

[CASTILLO:] Because he was just real laid back.

On this record, it is debatable whether the State or appellant brought Diles’s character

into issue. Assuming, without deciding that the State “opened the door” to rebuttal

evidence as to Diles’s character, we hold that the trial court did not abuse its

discretion by excluding testimony that Diles physically abused Castillo (issue one)

and that appellant knew that Diles was a member of the Crips (issue three).

Appellant does not clarify which trial court rulings were abuses of discretion.

To the extent appellant contends that the trial court abused its discretion by excluding

testimony from his witnesses, we determine that such exclusion was not an abuse of

discretion. Under Rule 405, in all cases in which evidence of a person’s character

trait is admissible, proof may be made by testimony as to reputation or testimony in

the form of an opinion. Tex. R. Evid. 405(a). Testimony regarding Diles’s physical

abuse of Castillo and testimony that appellant knew that Diles was a member of the

Crips is not reputation or opinion testimony. Cf. Tibbs, 125 S.W.3d at 89. Therefore,

appellant did not undertake to elicit such testimony from his witnesses. See Tex. R.

Evid. 405(a).

Appellant’s counsel also sought to cross-examine Castillo regarding Diles’s

physical abuse toward her.24 To the extent appellant challenges the exclusion of

testimony, during Castillo’s cross-examination, we hold that the trial court did not

abuse its discretion because appellant’s counsel did not apprise the trial court that she

wished to cross-examine Castillo to discredit her testimony as to Diles’s peaceable

character. See Harrison, 241 S.W.3d at 25 (“The purpose of permitting [character

witness] cross-examination is not to discredit the person whose character is in issue,

but rather to discredit the testimony of the character witness.”).

24

Counsel did not attempt to cross-examine Castillo regarding appellant’s knowledge that

Diles was a member of the Crips.

42

The record shows that appellant’s counsel did not cross-examine Castillo

regarding her statement that Diles was “just real laid back.” Instead, counsel inquired

into Castillo’s statement that she and Diles “had our good days and our bad days.” At

the bench conference during Castillo’s cross-examination, appellant’s counsel

asserted that she sought to inquire as to Castillo’s statement that she and Diles “had

our good days and our bad days” because “that answer mislead the jury.” The next

day, before the resumption of trial, appellant’s counsel told the court that “it was

[counsel’s] intention to impeach [Castillo] on prior inconsistent statements.” Later,

counsel attempted to introduce evidence of Diles’s physical abuse of Castillo through

appellant’s and Borner’s testimony. Counsel made an offer of proof. Counsel

proffered that appellant and Borner would have testified as to Diles’s physical abuse

of Castillo; counsel did not proffer additional lines of inquiry she would have

explored during Castillo’s cross-examination.

On this record, we determine that appellant’s counsel did not argue in the trial

court that testimony regarding Diles’s physical abuse of Castillo was admissible to

discredit her testimony as to Diles’s peaceable character. Therefore, appellant did not

preserve a complaint that the trial court abused its discretion by excluding Castillo’s

testimony on grounds that it was admissible to discredit any character testimony she

may have given on direct examination. See Tex. R. App. P. 33.1; Tex. R. Evid.

405(a); Reyna, 168 S.W.3d at 177 (“[I]t is not enough to tell the judge that evidence

is admissible. The proponent, if he is the losing party on appeal, must have told the

judge why the evidence was admissible.”).

We hold that the trial court did not abuse its discretion by excluding testimony

regarding Diles’s physical abuse of Castillo (issue one) and appellant’s knowledge

that Diles was a member of the Crips (issue three) offered to rebut the State’s

impression of Diles’s peaceable character.

43

We overrule appellant’s issues one, two, and three.

BRADY CLAIM

In his fourth issue, appellant contends that the trial court erred by denying his

request that the State provide him with copies of offense reports in cases in which

Diles was charged with crimes of violence.

The trial court signed a discovery order requiring the State to furnish for

inspection and copying “[a]ll exculpatory evidence pursuant to Brady v. Maryland

and related cases.” See Brady v. Maryland, 373 U.S. 83 (1963). On the second day

of trial, appellant’s counsel requested copies of the offense reports “for [Diles’s] prior

acts of violence” pursuant to the court’s discovery order. Counsel argued that the

offense reports were “Brady material.” The trial court denied counsel’s request.

Citing Pena v. State, 353 S.W.3d 797, 814-15 (Tex. Crim. App. 2011), appellant

argues that the trial court abused its discretion by not enforcing the discovery order.

Appellant asserts: “The offense reports of Diles’[s] prior convictions for robbery and

assault would have led to the discovery of witnesses in these cases — either Diles’[s]

victims or the peace officers who investigated them — whose testimony as to his

character and reputation for violence was admissible.”

In Brady v. Maryland, the United States Supreme Court held “that the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87;

see also United States v. Bagley, 473 U.S. 667 (1985). In Pena v. State, the Texas

Court of Criminal Appeals held that, to find reversible error under Brady and Bagley,

a defendant must show that (1) the State failed to disclose evidence, regardless of the

prosecution’s good or bad faith; (2) the withheld evidence is favorable to him; and (3)

the evidence is material, that is, there is a reasonable probability that had the evidence

44

been disclosed the outcome of trial would have been different. Pena, 353 S.W.3d at

809. Additionally, the evidence central to the Brady claim must be admissible in

court. Id.; see id. at 809-15 (trial court erred in denying defendant’s motion for new

trial where audio portion of a videotape that was discovered in the State’s possession

after the jury began deliberations was shown to be admissible as exculpatory and

impeachment evidence and undermined confidence in the conviction the jury

rendered).

To establish materiality under Brady, a defendant must show that, “in light of

all the evidence, it is reasonably probable that the outcome of the trial would have

been different had the prosecutor made a timely disclosure.” Id. at 812 (internal

quotations omitted). “The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial, does

not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427

U.S. 97, 110-11 (1976).

Appellant speculates as to the existence, contents, favorability, and usefulness

of offense reports in cases in which Diles was charged with crimes of violence.

Appellant anticipates that the offense reports, if in existence, could have led to the

discovery of character witnesses, whose testimony as to Diles’s character for violence

could have affected the jury’s decision on appellant’s guilt. We hold that appellant’s

speculation does not establish Brady materiality. See Pena, 353 S.W.3d at 812;

Michaelwicz v. State, 186 S.W.3d 601, 615 (Tex. App.—Austin 2006, pet. ref’d)

(“The mere possibility that appellant may have found the name or names of other

men or suspects to suggest as alternative perpetrators in the instant case which might

have helped the defense or might have affected the outcome of the trial is not

‘materiality’ under Brady.”).

We hold that the trial court did not err in denying appellant’s request that the

45

State provide him with copies of offense reports in cases in which Diles was charged

with crimes of violence because appellant did not establish the State’s obligation to

disclose the offense reports under Brady. See Pena, 353 S.W.3d at 812; Page v.

State, 7 S.W.3d 202, 206 (Tex. App.—Fort Worth 1999, pet. ref’d) (“We will not

order the State to produce information under Brady based merely on Appellant’s

speculation that the requested information contained exculpatory evidence.”); see

also Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992) (the State’s duty

to disclose evidence under Brady “attaches with or without a request for the

evidence.”); Michaelwicz, 186 S.W.3d at 616 (“Police arrest and offense reports are

not generally subject to production.”). We overrule appellant’s fourth issue.

CONCLUSION

Having overruled appellant’s four issues, we affirm the trial court’s judgment.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (McCally, J.,

concurring).

Publish — Tex. R. App. P. 47.2(b).

46